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Full text of "Cobbett's complete collection of state trials and proceedings for high treason and other crimes and misdemeanors from the earliest period to the present time ... from the ninth year of the reign of King Henry, the Second, A.D. 1163, to ... [George IV, A.D. 1820]"

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itaei 


H 


I 


3  A'iA 
(I-I-57 


I 


State    Trials, 


VOL.   XEK. 


State    Trials. 


VOL.   XES. 


NOTE  TO  THE  READER 
FRAGILE 

THE  PAPER  IN  THIS  VOLUME  IS  BRIHI E 

PLEASE  HANDLE  WITH  CARE 


COMPLETE    COLLECTION 

OF 


AND 

PROCEEDINGS   FOR   HIGH   TREASON   AND  OTHER 
CRIMES  AND  MISDEMEANORS 

FBOM  THE 

EARLIEST  PERlbD  TO  THE  PRESENT  TIME, 
WITH   J^OTES  AJ^D  OTHER   ILLUST&ATIOKS 

COMPILED  BY 

T.  R  HOWELL,  Esq.  F.R.S.  F.S.A. 


VOL.  XIX. 
A.  P.  1753—1771. 


LONDON: 

PRim'ED  BY  T.  C.  HANSABD,  FETERBOROUGH-OOiniT,  FLEET-STREET  i 

FOR  IX»NOMAN.  HURST,  REE8,  ORHE,  tc  BROWN;  J.  RICHARDSON;  BLACK, 
PARBT,  &  CO.;  £.  JEFFERY ;  J.  HATCHARD;  E.  LLOYD;  E.  BVDD; 
J.  FAVL.DER;  J.  BOOKER;  CRADOCK  &  JOY;  R.  H.  EVANS;  J.BOOTB; 
AND  T.  C.  HANSARD. 

1813. 


•    •  -•• 


•      •  • 


• » •  •  • 


*  •  •• 

•  •    *  • 


i  'IH-'^^-yy 


TABLE   OF  CONTENTS 


TO 

VOLUME  XIX. 


*ii*    The  new  Articles  are  marked  [}^.2 


REIGN  OP  KING  GEORGE  THE  SECOND. 

Page 
329.    The  Trial  of  JAMES  STEWART,  in  Aucham  in  Duror  of 
AppiDy  for  di0  Murder  of  Coin  Cmpbdl  of  Gleaore,  Mq.  Factor 
for  lus  Mt^uty  on  tbe  forfeited  Estate  of  Ardahid,  a.  s>.  1752  ...        I 

990.  The  Trial  of  MAAY  SQUIRES  and  SUSANNAH  WELLS, 
Widows,  for  an  Assault  and  Felony  committed  on  the  Person  of 
Elizabeth  Canning ;  aft  the  Sessiims-Hoiise  in  the  Old  BaOey,  a.  n. 
I7S9  «•••••«••#••«••••••••««•««•»•«*••••••••••••»•••••••'••••■••••••••••••  ••••••    *o!» 

SSL  The  Trials  of  JOHN  GIBBONS,  WILLIAM  CLARKE,  and 
THOMAS  O&EVILLB,  fipr  WiMbl  aid  Gorrapt  PeiTiirj;  at  the 
Sessions  House  in  the  Old  Baiky,  a.  d.  175S ^ 275 

SS2.    The  Trid  of  BUa^BETH  CANNING,  Sinnster,  for  Wilful  and 

Corrupt  Peijary,  sA  Juslioe-Han  in  the  Old  Bailey,  ▲•  d.  1754' ...    269 

S33.    Hie  Trid  of  TIMOTHT  MURPHY,  for  Fdony  and  Forgery,  a.  d. 

§3L  Fk'oceedings  against  Dr.  ARCHIBALD  CAMERON,  at  the  King's 
Bench,  May  17tli,  on  the  BO  of  Attainder  passed  against  him 
19  Goo.  iL  ftr  hfmg  in  the  RdbeOlon  174tf,  a.  p»  175S 734 


i0u    rheJa^it§imkS»91Sta,XmStEaMt.IMMMS 


CM,    Tk  TM  4f  LAWBEXCE  Eari  FERREKS,  ftr  Ae  Mader  «r 

A^n»  I7W »*^ ■*« .,■■■■«—>—    866 


REIGN  OP  KING  GEOBGE  THE  THIRD. 

Mt    lWCM0riOHXWILKES,c«f.iHiaHiiaiCofpai;A.i>.lTeS    96S 


MA»  VvMttfimp  mt  Earn  im  m  Aoam  rfgtJbe  \wapmmmwnil  by  DRY- 
DEN  LEACH,  iB«»t  JOHN  MOKET,  JAMES  WATSON, 
miA  ROBERT  BLACKMORE,  dim  of  die  Kii^s  Meaei«eo» 
A.  9. 1765«««*««««  «««^ 0.*... *• lOQS 

ML  The  CMe  of  Sebote  of  Papets,  being  m  Actkm  of  Tre^Mw  by 
JOHN  ENTICK,  Clerk,  egaoMt  NATHAN  CARRINGTON 
Md  diree  odier  McMtngen  in  otdinary  to  die  Kii^,  a.  d.  1165^.  1030 

64&    Procoedtofi  to  die  Cate  of  JOHN  WH^KES,  eiq.  on  two  Infonna- 

tioMfiMrLibelf;  a.i>.  1763— 1770  1075 

MS.    The  Cite  of  BRASS  CROSBY,  esq.  Lofd-Mqror  of  London,  on  a 

Commitment  bjr  the  Home  of  Commooa,  a.d.  1771  1138 

514«  The  Caae  of  General  WarranU;  JOHl^  WILKES,  esq.  against 
ROBERT  WOOD,  esq.  to  an  Acdon  of  Trespass,  a.d.  1763, 
[N.] 1154 

H5.    The  Trial  of  WILLIAM  Lord  BYRON,  Baron  BYRON  of  Roch- 

datop  fbrlheBfmrderofWilliimChtfrmlb,ei(i.  A.P.1765  1178 


TABLE  OF  CONTENTS. 

Page 
516.    The  Trial  of  KATHARINE  NAIRN  and  PATRICE  06ILVIE. 

for  the  Crimes  of  Incest  and  Murder;  before  the  High  Court  of 

Justiciary  in  Scotland,  A.  D.  1765 ^ 12S5 

517.    Ihe  Trial  of  FLORENCE  HENSEY,  M.D.  for  High  Treason, 

A.  D.  1758  CN,] 1S42 


Adoshsa  to  the  Cases  of  Wilkes  and  Canning 138$,  1418 


f  ;■■;:..,. 


A     COMPLETE    COLLECTION 

OF: 

STATE    TRIALS, 


529.  The  Trial  of  James  Stewart,*  in  Aucharn  in  Duror  of  Appin, 
for  the  Murder  of  Colin  Campbell  of  Glenure,  esq.  Factor  for 
his  Majesty  on  the  forfeited  Estate  of  Ardshiel ;  before  the 
Circuit  Court  of  Justiciary,  held  at  Inverary  in  Scotland,  on 
Thursday  the  21st,  Friday  the  22d,  Saturday  the  23d,  and 
Monday  the  25th  of  September,  by  his  Grace  Archibald  Duke 
of  Argyll,  Lord  Justice-General,  and  the  Lords  Elchies  and 
Kilkerran,  Commissioners  of  Justiciary  :  25  George  II.  a.d> 
1752. 


THE  CRIMINAL  LETTERS; 

LiDCL  OR  Indictment. 

George,  by  the  grrace  of  God,  king  of 
^t  Britain,  France  and  Irdaod,  defender  of 
l^Aitb.  To  our  lo?it8,  -— —  macers  of  our 
c*«t  of  justiciary,  messengers  at  arms,  our 
*^«iffi  in  that  part,  conjunctly  and  severally, 
fptciilly  coostitote,  greeting.  Forasmuch  it 
>■  humbly  meant  and  complained  to  us,  by  our 
^  trust?  William  Grant  of  Prettoograoge, 
^  our  adrocate,  for  our  interest,  and  also  by 
^rbf it  Janet  Mackay,  daughter  to  the  lion. 
^Bgli  Mackay  of  Bighouse,  esq.  and  relict  of 
^  deceased  Colin  Campbell  of  Glenure,  for 
hcnrif,  and  on  behalf  of  Elizabeth  and  Lucy 
^^•■pbells,  her  infant  children,  withconcourse 
^  oar  said  adrocate,  for  our  interest,  upon 


*  See  some  obserfatioos  on  tbis>Case  in  Mr. 
lliniett*s  **  Treatise  on  various  branches  of  the 
CriBioal  Law  of  Scotland,"  chap.  14.  Of  this 
^  msoy  other  remarkable  Cases  before  the 
^vttetiry,  no  account  was  given  by  Mac  Lau- 
li^  to  bis  Collection,  because  reports  of  the 
^  had  been  previously  published.  See  his 
^^cftoe,  p.  4,  cooteots,  p.  1.5. 

Aaealoua  partisan  of  Stewart  publishedjunder 
IW  title  of  «*  a  Supplement  to  the  Trial  of 
^>ais  Stewart,"  a  warm  and  spirited  arraign- 
^  sf  the  proceedings  upon  this  Trial.  I 
^  Made  some  eirtracts  from  bis  publication, 
if  tMi  1  kmom  not  the  date. 

T0L.X1X. 


James  Stewart  in  Aucharn  in  Duror  of  Appin, 
commonly  known  or  reputed  to  be  the  natural 
brother  ot  Charles  Stewart  of  Ardshiel,  attaint- 
ed, and  present  prisoner  in  Fort- William ;  and 
upon  Allan  Stewart,  commonly  called  Allan 
Breck  Stewart,  son  to  Donald  Stewart  alias 
Vic  Ean  Vic  Allister,  fomeiiroe  in  Invercbom- 
rie  in  Rannoch ;  and  .since,  or  sometime  after 
the  18th  day  of  April,  1746,  a  cadet  or  sol- 
dier in  the  French  king's  service,  or  reputed 
in  this  country  to  have  been  such. 

That  whereas,  by  the  law  of  God,  and  the 
laws  of  this  and  all  other  well-govenied  realms, 
murder  is  a  most  heinous  crime,  and  severely 
punishable,  especially  when  the  same  is  com- 
mitted  deliberately,  and  by  lying  in  wait,  and 
from  a  malice  conceived  against  the  person  so 
murdered,  on  account  of  the*faithful  discharge 
of  the  duty  of  his  office. 

Yet  true  it  is,  and  of  verity,  that  the  said 
James  Stewart  and  Allan  Stewart,  commonly 
called  Allan  Breck  Stewart^  complained  upon, 
are  guilty,  actors,  or  art  and  part  of  the  said 
heinous  crime  of  murder,  aggravated  as  afore- 
said, in  so  far  as  the  barons  of  our  Court  of  Ex- 
chequer in  Scotland  having,  by  commission 
dated  the  2dd  day  of  February,  1748-9  vears, 
appointed  the  said  Colin  Campbell  of  Glenure 
to  be  factor  upon  the  lands  and  estate  of  Ard- 
shiel, forfeited  to  ua  by  the  attainder  of  the  said 
Charles  Stewart,  and  lying  within  the  shire  of 
ArgvU,  and  in  the  neighbourhood  of  Glenure, 
the  bouse  of  the  said  Colin  Campbell,  and  alao 

B 


5] 


25  GEORGE  II. 


Trial  of  James  Slcivartf 


I* 


appointed  Li  in  factor  on  that  part  of  ihe  for- 
feiied  estate  of  Locliie),  called  Alamorc,  lyinj; 
in  the  shire  of  Inverness,  and  in  the  neighbour- 
bowl  of  Fnrt-'\TilIiaDi,  and  upon  the  forfeited 
estate  of  Allan  Cameron  of  Callart,  in  the  shire 
of  Inverness,  adjoining;  to  the  said  lands  of  Ma- 
more,  and  l>in^  lietwixt  Furt-William  and 
Appin  ;  he,  the  said  Colin,  entered  upon  the 
said  office,  and  proceeding  io  the  faithful  exe- 
cution thereof,  did,  among  other  things,  at 
Whitijiimday  1751,  cause  to  be  removetl  the 
said  Jameti Stewart  from  Glcn<luror,  a  farm  or 
possession  that  had  been  held  by  him  on  the 
said  estate  of  Ardshiel :  and  in  the  month  of 
Ipril,  in  this  present  year  1752,  the  said  Colin 
Cam[»bell  hati  taken  measures  for  causing  to 
be  removed  at  the  term  of  Whitsimdny ,  or  15th 
day  of  May,  now  last  bypa^t,  certain  other  per- 
sons who  were  tenants  or  posvessors  of  farms 
upon  the  said  lands  or  oslatc  of  Ardshiel ;  which 
proceeding  was  by  the  saiil  Jumes  Stewart,  for 
reasons  known  to  himself,  so  much  resentefl, 
that,  without  any  warrant  or  authority  from 
the  tenants,  or  persons  themselves,  so  intended 
to  be  remoTCil,  he  the  said  James  Stewart,  io 
the  month  of  April  last,  came  in  person  to 
Edinburgh,  and  caused  to  be  presenteil,  in 
name  of  the  said  tenants,  to  our  lords  of  session, 
a  bill  of  .suspension  of  the  said  intended  re- 
moving, U|>ou  divers  atfected  reasons,  that  were 
either  false  or  frivolous;  and  having  procure<l 
an  order  for  answering  the  said  bill,  and  a  sist 
of  execution  in  tlic  mean  time,  he  returned  into 
the  country,  and  caused  the  tenants  intimate 
the  sist  to  the  said  Colin  Campbell ;  who  there- 
upon repaired  to  Edinburgh,  where  an  answer 
haviiifr  been  made  to  the  said  bill,  the  same 
was  refused  by  the  lord  ordinary,  and  the  said 
Colin  Campbell  returned  to  his  own  house  at 
Gleuure,  where  he  might  be  in  the  way  in  at- 
tend the  duty  of  his  office,  and  to  cause  the 
said  removing  to  be  put  in  execution,  and  the 
new  tenants  introducied  to  the  lands  on  the  said 
15th  day  of  May  last. — And  on  account  of  the 
said  Colin  l^ampbell's  accepting  of  the  said 
office,  and  of  the  above-mentioned  and  other 
his  proceedings  in  the  faithful  discharge  of  the 
duly  thereof,  the  said  James  Stewart,  and  Allan 
Breck  Stewart,  conceived  a  most  groundless 
and  unjust  rosentiuenf,  malice,  and  enmity 
against  him,  and  at  length  entered  into  a  wick- 
ed conspiracy,  barbarously  to  murder  the  said 
Colin  Campbell,  and  tu  liereave  him  of  his  life 
by  the  hands  of  the  said  Allan  Dreok  Stewart, 
who  had  but  then  lately  come  back  frt^m  fo- 
rtin^n  parts  into  that  country,  and  intended  bOon 
to^rougntn  beyond  sea;  and,  during  his  said 
l:i>t  abode  in  the  country,  had  cl)i"t1y  fre- 
({Mtrntpd  the  house  and  citinpany  of  the  said 
J-iines  Stewart.  And,  in  prosecution  uf  this 
w  irked  cou*ipiracy,  upon  Monday  \\w  1  Itli  day 
of  May  last,  on  t!ie  morning  of  ivhich  day  the 
»aid  (  olin  Campbell  left  iiis  own  liousr  of  Cf  te- 
nure, tu  gu  to  tort-^Villiam,  in  the  country  of 
Utchaber,  about  the  distance  of  16  compiited 
niik^t  northwanl,  in  order  totnuticttome  binl- 
neii  rplaiing  to  bis  Hictory  on  th«  estate  of  Lo« 


chicl,  and  from  whence  he  was  certainly  ex- 
pected to  return  to  the  lands  of  Ardshiel  liefore 
Friday  in  the  same  week,  being  the  15th  day 
of  the  said  month,  when  certain  tenants  on  the 
lands  of  Ardshiel  were  to  be  removed,  as  above- 
mentioned,  and  others  introduced  in  their  room ; 
the  said  Allan  Breck  Stewart  went  from  the 
house  of  John  Stewart  of  Fasnacloich,  which 
lies  near  to  Glenure,  to  the  house  of  the  said 
James  Stewart  at  Aucharn,  lying  in  the  same 
neiglibourhood,  at  the  distance  of  about  four 
miles  northward;  and  there  the  said  James 
Stewart  was  informcil,  either  by  the  said  Allan 
Breck  Stewart,  or  by   his  own  son  Charles 

Stewart,  or  by Siewart,  daughter  to  the 

said  John  Stewart  of  Fasnacloich,  that  Ihey 
heard,  or  were  informe<l,  that  the  said  Colin 
Campbell  of  Glenure  was  to  go  to  Lochuber 
that  day,  and  that  he  was  to  persist  or  proceed 
in  the  intended  removing  of  the  tenants  of  Ard- 
shiel (as  the  said  James  Stewart  has,  among 
other  things,  acknowledged  in  his  judicial  de- 
claration taken  before  the  sherifl>substitute  of 
Inverness ;)  and  there,  after  receiving  such  ad- 
vice, in  the  evening  of  the  same  da}',  the  said 
Allan  Breck  Stewart  laid  aside  his  own  clothes, 
which  he  had  brought  with  him,  being  a  blue 
coat,  scarlet  vest,  and  black  breeches  of  sliag 
or  velvet,  which  were  believed  to  have  been 
brought  by  him  from  France,  an<l  \iliich  was  a 
remarkable  or  distinguishing  dress  in  that  part 
of  the  country ;  ami  then  and  there  the  said 
James  Stewart  furnished  him,  the  said  Allan 
Breck  Stewart,  with  a  suit  of  hi$,  the  said 
James's  own  clothes,  being  n  dark  coloured 
short  coat,  with  silver  buttons,  trowsers,  and  a 
blue  Iran  net,  in  which  the  snid  Allan  dressed 
himself  that  evening. — And  also  next  morning 
of  Tuesday  the  twelAh  of  May  last,  when  he 
\ei\  the  said  James  Stewart's  house,  where  the 
said  Allan  Ici^  behind  hiui  his  own  French 
c!othes  aforesaid,  together  with  his  hat,  and 
then  set  out,  in  order  to  lie  in  wait  for  the  said 
Colin  Campliell  on  his  way,  when  he  should 
return  from  Fort-William  to'  the  lands  of  Ard- 
shiel, which  lands  are  bordiTe«l  on  the  north- 
east with  the  lands  belonging  to  Alexander 
Stewart  of  Ballachelish,  whose  house  stands 
near  to  the  ferry  of  BulJacliflish,  upon  a  nar- 
row arm  of  the  sea  called  fjochlevin,  that  sepa- 
rates the  country  of  Appin  on  the  south,  from 
that  of  l^lamore,  part  of  I^chiel's  estate,  on 
the  north  Mde  of  it,  and  by  vihich  ferry  of  Bal- 
lachelish  it  was  kno\in  or  expected,  that  the 
yaid  Colin  Campbell  would  pasK,  in  his  return 
from  Fort- William  ;  and,  to  the  said  place  of 
Ballachfclish,  the  said  Allan  Breck  Stewart  di- 
ri'ctly  went  from  the  Imuse  of  the  said  James 
Ste««art  at  Aucharn,  on  this  Tuesday  the 
twettlh  of  May  last;  and  from  thence,  the 
same  day,  accoiinpaniiil  by  James  Stewart  tlie 
vounger  of  F.i«<n:icloidi^  went  to  Glenco's 
house  in  Carnoch,  about  three  miles  farther 
eastward,  where  the  dowager  lady  of  the 
house  is  sister  to  the  said  Charies  Stewart  late 
of  AnlBhiel,and  to  her  the  said  James  Stewart 
is  natural  brother;  and,  fruin  thence,  lie  went 


»1 


Jot  Murder, 


ibt  nme  day  to  the  bouse  of  Callart,  which 
nmetiiDe  belonged  to  Allan  Cameron  of  Cal- 
hrt,  itUioteU,  and  was  still  inbabiteil  by  Helen 
Stevart  his  %v(dow,  and  also  sister  to  the  said 
Charles  Stewart  of  Ardsbiel,  and  to  the  said 
isBMS  Stewart,  at  which  house  he  lodj^ed  all 
tkat  Tuesday  night ; — and  next   day,    beings 
Wcdanday,  the  thirteenth  of  Mav  last,  the 
Md  iUsQ   Breck  Stewart  came  back,  after 
eJSng  again  at    Camoch,   to   the  house   of 
iiexuider  Stewart  of  Ballachelish,  near  the 
ftny  aforesaid,  where  he  remained  the  night 
ttloaing  ; — and,  upon    Thursday    the  four- 
taesth  of  the  said  month  of  May  last,  when  it 
■igrfat  be  certainly  expected,  that  the  said  Colin 
Canfbell  would  return  from  Fort- William  to 
ibe  hods  of  Ardshiel,  and  country  of  Appin,  by 
tbe  said  ferry  of  Ballachelish,  the  said  Allan 
Brcck  Stewart  waited  about  the  said  house,  till 
about  twelve  of  the  clock  that  day  ;  and  then, 
voder  pretenee  of  going  a-6shiog,  walked  up 
akm^  a  bum  or  rirulet  near  to  the  said  bouse 
to  ti^  higher  grounds,  from  whence  he  had  a 
prospect  of  the  high  road  leading  from  Fort- 
IFilliam  to  the  lands  of  Ardshiel,  and  access  by 
a  short  passage  into  the  wood  of  Lettermore, 
danding  upon  tbe  lands  of  Ardshiel,  and  ad- 
joiaiag  to  the  said  road  on  the  south  side,  about 
I  mile  distant  from  the  house  and  ferry  of  Bal- 
hcbeiisb ;  and,  having  posted  himself  in  the 
aid  wood,  near  to  the  high  road,  by  which 
tke  said  Colin  Campbell  was  to  pass,  at  a  con- 
veoieot  station  for  his  wicked  purpose,  where 
be  bad  brought,  or  caused  to  be  brouffht  and 
t^aoed,  one  or  two  guns,  or  muskets,  loaded, 
with  which  he  continued  some  time  concealed 
is  tlie  wood  ;  and,  at  length,  about  five  or  six 
o'ckxk  in  the  afternoon  of  the  said  fourteenth 
4y  uf  May  last,  the  said  Colin  Campbell  hav- 
ing paMcd  tbe  ferry  of  Ballachelish,  and  been 
ttoveyed  by    the  said  Alexander  Stewart  of 
Ballachelish  from  tbe  ferry  to  the  entrance  of 
tke  wood  of  Lettermore,  as  he  continued  bis 
jamey  |iassiog  on  horseback  along,  or  through 
tkt  said  wood,  accompanied  by  Donald  Ken- 
itily,  a  sherilTs  officer  of  Art^yll-shire,  who 
was  on  foot,  and  bad  LOt  some  space  before 
bin,   the    road  lieing  bad  for  horses,  and  by 
Mango  Campbell,  writer  in  Edinburgh,  a  young 
■ui,  wlio  was  then  riding  a  little  way  before 
kiin;  and  behind  him,  at'some  distance,  was 
Juho  Madu^nzie,  servant  to  the  said  Colin,  and 
tlio  00  borseback. 

AimI  then  and  there  the  said  Allan  Breck 
Smart  fired  upon  the  said  Coliu  Campbell 
ffOD  behind  his  back,  and  shot  him  throuj^h 
tke  body  with  two  halls,  of  which  wounds  the 
iiid  Colin  Camnbell  died  upon  the  spot,  in  less 
tbao  an  hour  atter. 

Whereupon  the  said  Allan  Breck  Stewart 
ihcopdfcd,  and,  from  that  time,  appeared  no 
ksKcr  openly  in  the  country  ;  but,  during  the 
ai|^  Mbwing,  or  about  three  o'clock  in  the 
■oraing  of  Friday  the  fifteenth  day  of  May 
l>il,  bs  ctme  to  Carnoch,  the  bouse  of  John 
^■*^'*islti  of  Gleoco  abovementioned,  where 
W  kiicksd  at  a  window  when  the  family  were 


A.  D.  1752.  [6 

all  in  bed ;  and  the  said  John  Macdonald  of 
Glenco,  and  Isobel  Stewart  his  ste|>- mother, 
got  up,  and  went  to  the  door  to  the  said 
Allan,  who  then  told  them,  that  the  said  Colin 
Campbell  had  been  shot  detd  the  evening  pre- 
ceding, in  the  wood  of  Lettermore,  and  that  he, 
the  said  Allan,  was  leaving  the  country,  and 
going  the  Moor-road,  and  was  come  to  take 
leave  of  them,  the  said  lady,  and  Olenco  her 
son-in-law,  which  he  immediately  did,  and 
went  away,  without  entering  tbe  house,  though 
be  was  invited  by  the  lady  to  come  in,  and  take 
some  refreshment  there. 

That,  in  tbe  mean  time,  the  said  James 
Stewart,  complained  upon,  remained  at  his  owi^ 
house  at  Aucbaru,  firom  which,  on  the  morning 
of  Thursday,  the  14th  of  May  last,  he  sent  a 
letter  by  John  Maccol  his  servant,  to  Charles 
Stewart,  writer  in  Auchintour,  in  which,  inter 
alia^  he  writes,  "  As  I  have  no  time  to  write  to 
William,  let  him  send  down  imi^ediately  8/. 
sterling,  to  pay  four  milk  cows  1  bought  for  bis 
use  at  Ardshiel. '*  And  as  he,  the  said  James, 
hath  judicially  declared,  (when  examined  at 
Fort-William,  on  the  2nd  of  June  last,  in  pre- 
sence of  George  Douglas,  sheriff- substitute  of 
Inverness-shire)  he  did  not  see  the  said  Allan 
Breck  Stewart  after  the  murder;  hut  upon  notioe 
being  brought  to  the  said  James  Stewart,  com- 
plained on,  at  his  own  house  at  Aucharn,  im- 
mediately after  it  happened,  on  the  said  Thurs- 
day evening,  by  the  said  John  Mackenzie,  ser- 
vant to  the  said  now  deceased  Colin  Campbell, 
who,  having  \e\\  the  said  Mungo  Campfa«ll  to 
attend  the  corpse  where  it  lay,  rode  away  to  get 
help  or  assislance  fi»r  transporting  the  same  to. 
some  fit  house  or  place;  the  said  James 
Stewart,  complained  upon,  appeareil  noways 
surpriseil  or  concerned  at  the  news  of  the  mur- 
der ;  and  neither  he,  nor  any  of  his  family, 
went  to  look  after  the  corpse,  or  to  assist  in  the 
carrying  it,  as  others  of  the  neighbourhooil  did. 
And,  u|>on  the  morning,  or  about  noon  of  the 
day  following  the  murder,  being  Friday  the 
15th  of  May  last,  the  said  James  Stewart, 
complained  upon,  sent  Alexander  Stewart,  tra- 
velling packman  in  Appin,  to  William  Stewart 
merchant  in  Maryburgli,  with  directions  to  get 
from  the  said  William  5/.  sterling,  or  5  gui- 
neas ;  and  then  told  the  said  packman,  that  bis 
friend  Allan  Breck  Stewart  was  going  to  leave 
the  country ;  and  that  it  was  incumbent  on 
him,  the  said  James,  to  supply  him  with 
money;  whereupon,  the  said  packman,  that 
same  day,  repaired  to  Fort-William,  ami  deli- 
vered his  said  message  from  the  said  James 
Stewart,  to  the  said  WiUiani  Stewait,  who 
immediately  caused  his  wife  bring  the  packman 
three  guineas, — with  which  the  packman  re- 
turned the  next  day,  being  Saturday,  the  lOlh 
of  May  last,  back  to  the  said  James  Stewart's 
house  at  Aucharn  ;  and,  upon  his  arrival  there, 
found  the  said  James  Stewart  prisoner,  in  the 
custody  of  a  party  of  soldiers  ;  and  the  said 
packman  being  allowed  to  converse  privately 
with  the  said  James  Stewart  auti  his  wife  ;  and 
having  informed  him,  that  he  had  only  recei\  t<t 


TJ 


26  G£OilG£  11. 


Trial  qfJam^B  Stewarl, 


[» 


^  IjrtiinMs  from  Wilttam  Steivart  at  Marrburgli, 
tlio  said  James  i^ewart  took  out  of  his  nurse  2 
guineas,  which  he  gave  to  bb  wife,  ueslrinff 
her  to  g^ife  the  same  to  the  packman  ;  to  go 
with  these,  and  the  three  guineas  he  already 
hud,  atid^also  with  Allan  Breck  Htcwart's 
clothes,  to  him,  the  said  Allan :  and,  acrord- 
insfly,  on  the  evening  of  that  same  Saturday, 
iifter  the  fsuid  James  Stewart  had  been  calried 
off  prisoner  to  Fort-Vl^illiam,  his  wife  brought 
the  said  Allan  Breck  Stewart's  clothes  above- 
incntioned,  to  the  packman,  and  defiFered  the 
same  tied  up  in  a  bundle  to  him,  cootalninff  a 
pair  of  red  breeches  besides  the  Mack  breeehes 
above-mentioned,  that  wer6  the  prO|)erty  of 
the  said  Allati  himself;  and  at  the  same 
tirrle,  delivered  to  the  packman  the  two  gui* 
neas  nbofc-mentioned,  which  she  had  re- 
ceive: d  from  her  tiaid  husband  for  that  purpose, 
and  directed  the  packman  to  go  with  tbeclothes 
and  the  five  guineas,  and  deliver  the  same  to 
the  said  Allan  Breck  Stewart,  whom  he  would 
find  or  hear  of  at  the  house  of  John  Maccol, 
bouman,  having  the  charge  of  milk  cows  upon 
a  farm  or  shealing  belonging  to  Dougal  Stewart 
of  Appin,  at  a  remote  or  solitary  place  called 
Koalisnacoan ;  and  the  said  packman,  afler 
g'etting-  his  sujpper  at  Aucham,  set  out  on  this 
errand  acconnngly  that  same  night: — ^That, 
in  the  mean  time,  in  the  aflernoon  of  the  said 
Saturday,  the  16th  of  May  last,  the  said  Allan 
Breck  Stewart  was  seen  by  the  said  John 
Maccol,  Appin's  bouman,  in  the  heu^h  of  Cor- 
rynakiegh,  a  |nirt  of  the  farm  of  Koalisnacoan ; 
whereas  the  bouman  was  cutting  fire-wood, 
he  heard  a  whistle,  and,  Itiokiug  about,  observed 
a  roan,  at  a  considcruble  distance,  beckon  to 
him,  whom,  unon  his  going  up  to  him,  he  found 
to  be  the  said  Allan  Breck  Stewart,  who  saluted 
him,  by  asking  him  how  he  did?  And  the 
bouman  returned  the  salute,  and  told  the  said 
Allan,  he  was  afraid  it  was  no  good  action  occa- 
sioned liis  being  in  such  a  solitary  place ;  upon 
which  the  said  Allan  asked  |iim,  what  he  meant 
by  that  ?  And  the  bouman  answered,  that  he 
would,  without  doubt,  besuspcctcdof  Glenure's 
mnnler,  who,  he  heard,  was  shot  in  the  wood 
of  Lettormore  ;  and  that  there  were  two  men 
seen  go  from  the  place  where  the  action  was 
committed  ;  to  which  the  said  Allan  replied, 
'riiat,  if  he  was  ri;>htly  informed,  there  was 
hut  one  person  conccrne<l  in  the  murder  ;  and 
talking  i'ui^lier  of  the  matter,  said,  he  did  not 
doubt  the  family  of  Ardshiel  would  be  suspected 
of  the  murder  ;  and  that  he  believed  James 
Stewart  anti  his  son  would  betaken  up,  in  con- 
sequence of  their  difference  with  Glenure  about 
the  lands  ;  but  that  their  being  taken  up,  would 
not  be  of  any  consequence  to  them,  as  there 
would  be  no  proof,  unless  their  own  tongues 
betrayed  them :  and,  upon  the  bouman's  say- 
ing, fhat  he  wished  he,  the  said  Allan,  would 
leave  his  neighbourhood,  Allan  tod  him  be 
could  not,  till  Tic  was  supplied  with  money  and 
victdals ;  and  insisted  with  the  boaman,  that 
he  should  go  to  the  Strath  6f  Daror  (where  the 
said  James  Stewart's  ho«M  of  Aiidm  lict)  ftr 


money,  and  to  the  lady  Glenco  for  a  peck  of 
meal ;  both  which  the  boaman  appearing  to 
decline,  the  said  Allan  added,  that  he,  the  bou- 
riian,  must  go  to  Fort-William  with  a  letter, 
(which  the  said  Allan  tlien  wrote  with  a  wood- 
pigeon's  quill  be  had  gathered  artiong  the 
trees,)  to  William  Stewart,  merchant  io  Mary- 
bargb,  who,  he  said,  would  glVe  him  money 
tipon  reeeipt  of  the  letter;  and  the  boumao 
having  also  refused  to  comply  with  this  propo- 
sition, giving  fbr  bis  excuse,  tbAt  he  heanl  tbat 
all  that  went  to  Fort-William  at  that  lime 
were  taken  into  custody,  the  said  Allan  furtlier 
told  him,  that  unless  he  should  be  supplied, 
from  some  other  quarter,  before  next  day,  that 
he,  the  bouman  must  go  to  Fort- William,  not- 
withstanding these  difficulties,  and  that  he,  Allan, 
was  surprised  there  was  no  money  sent  him, 
though  It  was  promised  to  be  sent  him  to  tbat 
place.  That  very  early  in  the  morning  of  Sun- 
day, the  irth  of  May  last,  the  said  John  Maccol, 
bouman,  went  out  of  his  house,  to  look  after 
some  cattle  that  he  apprehended  were  amongst 
his  corns,  and  then  ooserved,  coming  towards 
him  from  the  westward,  a  man,  whom,  at  a 
distance,  he  took  to  be  Allan  Breck  Stewart ; 
but,  aiM>n  his  nearer  approach,  found  him  to  be 
the  said  Alexander  Stewart,  packman,  who, 
upon  bis  c6roing  up  to  him,  afler  the  ordinary 
salutations,  ask«l  tne  bouman,  if  he  had  seen 
Allan  Breck  Stewart  ?  which  the  bouman  hav- 
ing denied,  the  said  packman  told  him,  that  he 
had  money  and  clothes  for  the  said  Allan,  which 
he  (Allan)  had  try  sled,  (or  agreed  with  some 
other  person)  to  receive  at  that  place  from  any 
one  who  should  be  sent  af\rr  him  with  it ;  and 
then  the  bouman  owned  he  had  seen  him,  the 
said  Allan,  and  that  be  was  then  in  the  heugh 
of  Corrynakeigh,  and  told  the  packman,  that  if 
he  went  to  an  eminence,  which  he  pointed  out 
to  him,  and  whistled,  that  the  said  Allan  Breck 
would  probably  appear  to  him ;  but  this  the 
packmaq  declined,  complaining  tbat  he  was  so 
ntigued  with  travelling  the  whole  night,  that 
he  would  not  go,  having  been  lately  upon  his 
own  business  at  Fort- William,  and  having  been 
obliged  to  go  there  again  on  the  said  James 
Stewart's  errand  above-mentioned;  and  there- 
fore desired  the  said  bouman  to  deliver  the  five 
guineas,  which  he  then  gave  him,  to  the  said 
Allan  Breck  Stewart,  together  with  a  bundle  of 
clothes,  which  he,  the  packman,  had  left  at  the 
root  of  a  fir-tree  then  in  their  view,  which  he 
pointed  out  to  the  said  bouuinn,  who  promised 
to  deliver  both  to  the  said  Allan  as  desired  ; 
whereupon  the  packman,  being  much  fatigued, 
went  to  sleep  m  the  bouman's  house ;  and  in 
the  evening  of  the  same  Sunday,  the  seven- 
teenth of  May  last,  af\er  the  said  John  Mac- 
col, bouman  to  Appin,  was  ^one  to  bed,  he  Was 
awaked  by  the  said  Allan  Brock  Stewart  his 
knocking  at  the  window  of  his  the  said  boa- 
man's  house,  whereby  the  board  or  shutter  of 
his  said  window  fell  in ;  whereupon  the  said 
bouman  got  up  from  his  bed,  and  went  out, 
when  be  round  the  said  Allan  Breck  Stewart 
rt&cdataomediitafieefjrom  his  home,  who, 


»1 


JxJfT  MHtder, 


r«R  III 


togrtkc 
INfi 


•fit^fi^*!    Ill 


Ibnol  a!l,  fold  liiok,  he  itooil  m  ^reai  ueeij  of 
ifitik  ;  Hpnr    t»  :^ii    -•r,  *-■  ntno    iveiil  into 

^^unn  Of*  diih 
I    hern  hoiledf 
k  in  his  hnni], 
;^  :,  nil  tliey  come 
u  iHifn  or  rivufet,  not 
hiiu&e ;    &n(U  nt  this 
I'l'ik  asked  the  lion- 
iiiv  body  come  lo  tliat 
tar  birn?    i^hich   the 
the    Rffirmattve,    and 
1  i^tljia  the  i]ve  guineas  he 
\  lexander  Stewart,  ihe  jwck- 
'  Mian  Breck  Stewart 

>  ivithout  \m  ffend* 
<i  i  oil  VVUhaui,aD(J^n- 
G  hail  been  brought  Tor 
'"•'»iti  delivered  to  him 
<?'ii»enlioned,   iliat 
>»(ewftrt  the  pack- 
1  \\\H  fir- tree,  and  then 
d  and  tntiTated  the  bou- 
iOMieviliitit  tti  (hut  pUcenejit iDnrning' cart)  , 
b#  fsa^lil  dcUrerto  htm  the  dark  cob^ureil 
gnwunlfii  with  silver  buttons,  and  a  iiair  of 
btch  the  taid  hXHn  then  wore,  aud 
tlpttfi  UifDi  and  ivhich   he  told  the  bournan 
\\%«  pti*|»eriy  of  the  said  James  Stewart  in 
Is  it         '   'i  it  the  bouman  might  re- 
liiil  il'  -^e  ctolbes  to    the  vdid 

Of  if>  .^*^.^.l  .1  8tew»it  hiB  Hite;  and 
i  bouman  promised  to  meet  the  said 
^  ABm  ci»«^»  mrwiMtig^  a^  lie  desired;  and  ac> 
B   omlittfl  irtDti  repaired  next   diorDing' 

^^kifdrr  »  the  place  appointed,  at  the 

^^Ki  ,  Tur  the  mreiiii^f  where  he 

^^Bl  '  'br  s;ttd    Allan  himself,  but 

B^OBd&^j  '   coloureil  coal  and 

H    IfWUBin  ^«iher  with  hit  own 

■  taffMi  or  duli,  kik  nhicb  be  had  brong-ht  the 
B  ■itkaagft  tvater  to  the  »iid  Allan;  und^  in  one 
I  tfili*  pock#tft  of  the  Hiiid  short  coat,  the  said 
^MOiAti  fMiod  a  timal)  powder- hoi'n«  of  a  flat 
^  Siikr.  tritli  aome  carviii|^  upon  the  horn,  and 
B  Mi  w»x  Ofi  the  itiviile  thereof,  for  ineudin; 
^U|UrM«T  4f-*  *'-tMi  place  the  <iai<l 
^^^hIi  BlUtmh  w  fVom    that  country 

pVM«lli«  mi.  -,  ae  proposed,  by  g'oinji  a- 
#IM  miiioltiQif  ind  deK&rt!*^  where  there  wa; 
■i  #»illi«|^4imi3ie  for  the  space  of  about 
i^laiii  eofiijmtcd  mi(e»  eastward,  to  the  coun- 
try cmDed  f!antinch,  rn  the  north-west  corner  uf 
miNlir  r  of  the  said  Allan 

Bmli^r  iidfi  or  relatione  of 

L^liTC  \  jufiun^;.t  whutu  he  kqit  himaelf  ooti* 
nilM  fivr  a  few  day«,  nnd  was  there  seeit  with 
4»     "  1  I  pair  of  reil 

Ir  I  w  from  that 

CNiDirv ,  auti  utlj  ih»i  im  i  ji.  tan  i>  seen  or  heard 
if  jfitnii  lingi}um,  that  the  cuuipbiincni  bare 
tttBaMe  ti»  kani.  And  m  ;»  let t*^r  wrote  hj 
iIbmI  JaoiM  8iewart,  ^inci"  hi'  w.ts  laktn  into 
cviadf  Ml  at-cimiit  of  tht*  said  inm-Kr  h**nr- 
hg  mm  St  Fmt-  IVitharn  the  IDth  y 

IwlUrcMed,  To  Mr.  Juhti    ^  ul% 

'  li  libfl  aiguct  \  whrreio  iht  said  Jamea 


ding  a 

AlTlID 


A.  D.  1752.  [10 

[rr4)fte«i  gfmt  deteatation  of  the  murder,  and 

great  desire  that  the  said  Allan  Breck  Htewaii 
tnig^ht  be  apprehended,  and,  for  that  purpoce^  \ 
describes  the  i»erson  and  dresa  of  theiiaid  Allan  | 
he,  infer  aha,  My 9,  that   he,  the  said  Ailail| 
wore  a  pair  of  red  breeches. 

From  all  which,  and  other  facts  and  ctrcum* 
ataooes  that   will  be  proved  agninKi   the  said 
persons  complained  uftoii,  and  particularly  the 
tbreateoin^s  of  death  and  destruction,*  whioti 
the  said   James  Stewart,  and  the  satd  Allan  i 
Bt^ck  Htewart,  above  complained  upon,  havg  I 
been   henrd    to    otter  ag^ainst  the  stiid  Colin  | 
Campbell  of  G tenure,  now  bfreated  of  his  lifai, 
by  the  horrid  murder  and  assassination  nfore-  ] 
Hatd,  it  will  be  made  evitlent  and  pvoved,  thatj 
the   said    James    Stewart,   and   Albn    Breck 
Stewart,  compliiined  ujKin,  and  each  of  them, 
are  i^uilty,  actors,  or  art  and  part  of  the  said 
horrid  murder. 

And  as  a  part  of  this  proof,  there  will  be  pro> 
duced  certain  documents  in  writing,  and  other] 
particulars  enumerated  and  contained  in  an  in- 
ventory or  list  lliereof,  signed  by   the  com- 
plainers,  or  either  of  them,  copies  of  whicb 
list    or    inventory    will    be   delivered    to,    or  , 
nerved  upon,  the  persons  complaineil  upon,  at  | 
the  lime  of  eicecutin^  this  libel;  and  the  said 
tvritten  documents,  and  other  particulars  them-  ] 
selves,  will,  before  trial,  be  lodged  in  the  hands 
«f  the  clerk  to  the  circuit  court  of  justiciary, 
befcire  which  the  persons  complained  upon  aro  * 
to  be  tried,  that  they  may  see  the  same. 

At  least,  at  the  time  and  place  aforesaid,  the  | 
ttaid  Colin  Campbell  of  Otenure   was  barba- 
rouUy  murdered,  and  the  said  J^imes  Stewart,  ' 
j  and   Allan   Breck  Stewart,  above  complained 
uprm,  are  t^uilty,  actors,  or  art  and  part  of  the 
said  murder. 

All    which,  or    part  thereof,  being  found  ' 

*  The  author  of  the  *  Supplement*  objedati^ 
the  admission  of  proofs  of  particular  threaten* 
in^  upon  this  general  and  ambiguous  allega-  ' 
tinn,  which  did  not  afford  the  panoel  sufficient 
iuformatiflu  to  enable  him  to  be  prepared,  either  , 
to  exculpate  himself  from  tlie  charge^  or  to 
elide  it  by  a  contrary  proof. 

As  to  the  allegation  of  circumstances  and  pre* 
sumptions,  Air.  Ilume  (Coram.  Trial  for  Crimea^ 
c.  7,  »ol.  1,  p.  383,)  lays  it  down  that, 

»'  Tlie  rule  of  setting  forth  time  and  place  in  « 
a  libel  has  relation  to  the  main  act  only,  or 
consummation  of  the  crime,  and  not  to  the  iskt* 
cumstances  and  presumptions  which  may  be 
given  in  evidence  of  the  pannePs  guilt,  or  to 
inter  that  he  is  art  and  uart  of  the  charge* 
With  regard  to  the  detail  or  these  ;  for  instance 
in  a  case  of  murder,  the  preceding  enmity  and 
threats,  the  procuring  of  the  weapons,  the  flight 
of  the  paimel,  hii»  tiohavjour  when  tuken,  the 
blood  found  on  his  cloihes,  and  the  hke;  if  the 
libel  set  I  hem  forth  at  all,  it  is  matter  of  pare 
favour  on  the  jirnstKJu tor's  part ;  he  cannot  ^ 
therefore  be  challenged,  4br  ftlHnf  10  fdate 
ill  em  with  all  the  aeeonipa«taieflti  WtMa  lilt 
ptmnd  tnigitt  flonieiimea  deaire.** 


11]  25  GEORGE  U. 

proTeu  by  tbe  verdict  of  aD  assize,  before  ODr 
lords  justice-geoeral,  justiee-clerjc,  and  com* 
mifsionert  of  justiciary,  in  a  circuit  court  of 
justiciarv,  to  be  bolden  by  them,  or  any  one  or 
more  of  Iheir  Dumber,  iritbin  the  burgh  of' 
Inrerary,  upon  the  2l8t  day  of  Seplerober 
next  to  come,  N.  8.  the  said  James  Stewart, 
and  Allan  Brack  Stewart,  complained  upon, 
both,  or  one  or  other  of  them,  who  shall  be  ho 
oonficted,  ought  to  be  punished  with  the  painE 
of  law,  to  the  terror  of  others  to  commit  the 
like  execrable  crime  in  time  coming.  Oiir 
will  is;  &c. — Ex  deliberatione  Dominorum 
Commissionariorum  Justiciarii. 

Robert  LErra. 

List  of  the  PerMons  Nama  and  Detignation$ 
that  are  to  pau  upon  the  AMtise  of  the  said 
James  Stewart^  and  the  said  Allan  Breck 
Stewart,* 

Argyll- SHIRE. 

Donald  Campbell  of  Airds. 
Dugald  Stewart  of  Appin. 
1.  Colin  Campbell  of  Carnuhin. 
John  Maclean  of  Lochbuie. 
Donald  Campbell, younger,  of  Scammadale, 
Duncan  Campbell  in  Oban. 

*  Previously  to  the  death  of  Campbell  of 
Glenure,  there  had  been  a  long  and  bitter  feud 
between  tbe  Campbell  and  the  Stewart  clans. 
It  is  to  be  noticed,  that  of  the  assizers  from 
whom  were  to  be  selected  the  jury  for  trial 
of  this  Stewart,  25  were  Campbells. 

The  Justice  general,  who  in  deviation  from 
the  ordmary  practice  presided,  was  the  chi^f 
of  the  Campbells,  and  of  the  6fleen  jurors 
selected  by  the  Court,  eleven  were  of  hii 
grace's  clan. 

To  speak  generally  and  briefl  v  as  to  the  for- 
mation of  the  assize  or  jury,  the  course  ap- 
pears to  be  this:  Out  of  a  general  roll  of  the  per- 
sons liable  to  be  called  on  to  serve  as  assizers, 
the  clerk  of  the  court  makes  up  a  list  of  45,  ni 
whom  the  presiding  judj^e  selects  15  to  pass  on 
the  trial  of  the  paunel ;  these  are  presented  to 
thepannel,  who  is  asked  if  he  have  any  objcc^ 
tion  why  tliey,  or  any  of  them,  should  not  psK^ 
on  his  assize.  **  As  to  which,"  says  Mr.  Hume, 
**  our  custom  allows  him  not  that  freedom  > 
which  the  prisoner  has  in  Encfland,  of  settinc^ 
aside  so  many*'  [a  certain  number]  "  of  the  ju- 
rymen by  a  peremptory  challenge,  or  withoiii 
asst)2rning  any  cauie  of  dislike,  but  obliges  him 
to  specify  with  respect  to  any  one  whom  he 
challengres,  some  lawful  and  just  exception, 
why  the  man  should  not  be  trusted  on  such  an 
occasion.*'  Fifteen  to  whom  the  pannel  shall 
not  have  successfully  objected  constitute  the 
assize.  See  Hume's  Commentaries,  Trial  for 
Crimes,  ell,  pp.  89.  99. 93. 106. 

TIm  « Suppkuieot  to  tbe  Trial  of  James  Stew- 
tft'  nflDtioiii,  that  "  the  LondoQ  Evenmg 
FMoTDw.  5,  [1758]  took  Mtica  of  thia  tri^ 


Trial  qfjamei  SteXLort, 


[W 


Duncan  Campbell  at  Aross. 
ArcbibakI  Campbell  of  Knookbuie. 
3.  Dugald  MacdOgal  of  Gallanach. 
Donald  Cam|>bell,  bailie  of  Lochinnel. 
James  Fisher  of  Duren. 

3.  Alexander  Duncanson  of  Kills. 
Archibald  Campbell  of  Ormsarv. 
John  Ricbanison,  merchant  at  inverary . 

4.  Duncan  Campbell  of  South- Hall. 

5.  Hector  Macniel  of  Ardmeaniah. 
Archibald  Campbell  of  Clachanseil. 

6.  James  Campbell,  late  bailie  of  inverary. 

7.  James  Campbell  of  Rascheilly. 

8.  James  Campbell  of  Rudale. 
Angus  Campbell  of  Ardlarich. 

9.  CoUin  Gillespie  of  Bailliemoir. 

10.  Colin  Campbell  of  Skipnish. 

11.  Duncan  Campbell  of  Glendaraul. 
Hugh  Campbell  of  Lix. 
Alexander  Campbell  of  Ballochiel. 
Colin  Campbell  of  Kildalvin. 

12.  Colin  Campbell  of  Ederlin. 

13.  Niel  Campbell  of  Duntroon. 
Archibald  Campbell  of  Jura. 
Duncan  Maclauchlan  of  Croich. 
John  Campbell,  younger  of  Ottir. 

14.  Archibald  Campbell  of  Daill,  in  Craignisb. 

15.  Niel  Campbell  oFDunstaOiuish. 

BuTE-SHIRE. 

Archibald  Davie  in  Glenrossie,  in  Arran. 
John  Brown  in  Glenshervig. 
Donald  Brown  there. 
Alexander  Fullertoun  in  Brodick. 
Thomas  Macninch  in  Clachlands. 
Duncan  Macmaster  in  Lamblash. 
William  Hunter  in  Letter. 
Andrew  Macbryde  in  Monimore. 
John  Macbryde  in  Achincairn. 
James  Stewart  in  Mid-Klskidale. 
Alexander  Stewart  in  South -Kiskidale. 

Cii.  Areskine. 

Alex.  Fraser. 

Hew  Dalrymple. 

N.  B.  The  execution  of  the  criminal  letters, 
against  James  Stewart  personally,  was  upon 
tbe  21st  day  of  August,  1752  ;  and  the  execu- 
tions against  Allan  Breck  Stewart,  at  Aucharn, 
was  upon  the  24th  day  of  the  said  month  of 
August,  and  at  tbe  Market- cross  of  Inverary, 
the  25ib  day  of  the  said  month  of  August. 

in  the  following  words :  *  We  are  informed  by  a 
private  letter  from  Argyleshire;  that  the  ancient 
animosity  between  the  Stewarts  and  Campbells 
la  likely  to  revive,  on  the  score  of  hanging 
James  Stewart  at  Hallachelish,  on  account  of 
the  murder  of  Colin  Campbell  of  Glenure. 
The  circumstances  of  trying  Jumes  Stow&rt  at 

Inverar^Ti  the  seat  of  the'd of  A ,  is 

what  his  friends  Hx  upon  to  convince  the 
world  that  he  was  hastily  and  unjustly  con* 
demned."' 


13] 


far  Murder. 


A.  D.  1752. 


[II 


Ci?BiA  Itinsris  JovnciARn,  8.  D.  N.  R^is, 
leota  apud  harg'uiii  de  InTerarii,  yicesinio 
pnmodie  Meosis  Septembris,  Anno  Do- 
tnioi  millesimo  septiDgenlesimoquinquage- 
simofeGundo,  N.  S.  per  nobilem  et preepo- 
teatem  Principem  Archibaldum  Ducein 
de  Arg}U,  Dominum  Justiciarium  Gene- 
nlrm,  et  Patricium  Grant  de  Elchies, 
ansi^rerum,  e^Dominam  Jacobum  Fergu- 
son de  Kilkerran,  Doroinos  Comroissiona- 
nos  Justiciarii  dieti  S.  D.  N.  Re^s. 

Curia  legitioQ^  affirroata. 

His  51ajesty's  Advocate  naoTed,   That  the  < 
Criounal  Letters  at  bis  instance,  tor  bis  majes- 
ty's interest,  and  also  at  the  instance  of  Janet 
Mackaj,  daogfater'to  the  honourable  Huf^h 
Mackay  of  Biglionse,  esq.  and  relict  of  the  de- 
ceased iDolin  Carapbell  of  Glenure,  for  herself, 
and  on  b«baU'  of  Elizabeth  and  Lticy  Gamp- 
bells,  her  infant  children,  with  concourse  of  his 
said  majeftty's  ail?ocate,  for  his  majesty's  in- 
terest, s^aioj^  James  Stewart  in  Aucharu  in 
Ilnror  ofAppin,  commonly  known  or  reputed 
to  be  the  natural  brother  of  Charles  Stewart, 
late  of  Ardsbiel,  attainted;  and  Allan  Stew- 
art, commonly  called  Allan  Breck  Stewart,  son 
to  Donald  Stewart,  alias  Vic  Ban  Vic  Allister, 
sometime  in   Inverchomrie  in  Rannoch,  and 
ttoce,  or  some  time  a(\er  the  18th  day  of  April, 
1746,  a  cadet  or  soldier  in  the  French  king's 
ferrice,  or  reputed  in  this  country  to  have  been 
such,  might  be  called.     And  the  same  being 
•ccordin^y  done,  and  the  above  Allan  Stewart, 
commonly' called  Allan  Breck  Stewart,  lieing 
oft  and  divere  times  called  publicly  by  the 
macer  of  court,  and  thrice  called  at  the  outer 
door  cf  the  court- bouse,  to  bare  compeared 
lad  anderlyeo  the  law  for  the  crime  of  mnrder 
oofomitted  by   him  upon  the  said  deceased 
Coha  Campbell  of  Glenure,  in  manner  at  len^h 
•Motioned  m  the  said  criminal  letters,  he  harmg 
Wes  lawfully  cited  for  that  effect,  hut  not  com- 
paring,— tbe  lord  justice  general,  and  lords 
etouaiisiooers  of  justiciary,  decern  and  adjudge 
Alho  Stewart,  commonly  called  Allan  Breck 
fteirart,  son  to  Donald  Stewart,  alias  Vic  Ean 
Vie  Allister,    sometime    in    Inverchomrie  in 
lUsaocb,  and  since,  or  sometime  after  the 
18tb  day  of  April,  1746,  a  cadet  or  soklier  in 
tW  French  king's  service,  or  reputed  in  this 
CiNtry  to  have  been  such,  to  be  an  outlaw 
isifagicive  from  his  majesty's  laws ;    and  or- 
te  lam  to  be  put  to  the  horn,  and  all  his 
SMfeable  goods  and  gear  to  be  escheat  and 
ishrongbt  to  his  mi»jesty's  use,  fur  his  not  com- 
pstnng  thb  day  and  place,  to  underly  the  law 
Isr  the  crime  ot  murder  committed  by  him  upon 
t^  deeeased  Colin  Campbell  of  Glenure,  as  is 
Me  foll^  mentionetl  in  the  criminal  letters 
niicd  against  him  ihereanent,  at  the  instance  of 
WiUiam  Grant  of  IVestoiigrange,  esq.  his  ma- 
jeaj'sadvoeate,  for  his  majesty's  interest,  and 
^  at  tbeiostance  of  Janet  JVlackay,  daughter 
tetbebeooarable  Hugh  Mackay  of  Bighouse, 

aaad  raliec  of  the  said  deceased  Colin  Camp' 
of  GlHUVti  for  henelfi  and  on  behalf  of 


Elizabeth  and  Lucy  Campbells,  her  infant 
children,  with  concourse  of  his  nuijesty's  ad- 
vocate, for  his  majesty's  interest;  the  said 
Allan  Stewart,  cpmmonly  called  Allan  Breck 
Stewart,  having  been  lawfully  cited  for  that 
effect,  oft  times  called,  and  not  compearing. 
Ahqyll,  I.  P.  D. 

Inlran^ 

James  Stewart  indicted  and  accused  at  the 
insUnce  of  bis  m^esty'i  advocate,  for  his  ma- 
jesty's interest,  and  also  at  the  instance  of  Janet 
Mackay,  daughter  to  the  houourable  Hugh 
Mackay  of  Bighouse,  esq.  and  relict  of  the 
said  deceased  Colin  Campbell  of  Glenure,  for 
herself,  and  on  behalf  of  Elizabeth  and  Lucy 
Campbells,  her  infant  children,  with  concourse 
of  his  majesty's  advocate,  for  his  majesty's 
interest,  as  guilty,  actor,  or  art  and  part  of  the 
crime  of  murder,  committed  in  the  manner 
mentionefl  in  the  Criminal  Letters  raised  there*- 
anent  against  him,  and  Allan  Stewart,  com- 
monly called  Allan  Breck  Stewurt,  son  to  Do- 
nald Stewart,  alias  Vic  Ean  Vic  Allister,  some- 
time in  Inverchomrie  in  Rannoch,  and  since, 
or  sometime  after  the  18th  day  of  April,  1746, 
a  cadet  or  soldier  in  the  French  king's  serf  ioe, 
or  reputed  in  this  country  to  have  l^o  sacb. 

Procurators  for  the  Prosecutors. 

The  right  bon.  William  Grant  of  Pr«Bton* 
gprange.  esq.  his  Majesty's  Advocate. 

Mr.  James  ErskinCy  advocate,  sheriff- depute 
of  Perthshire. 

Mr.  John  Campbell  younger,  of  Levenside, 
advocate. 

Mr.  Robert  Campbell  of  Asnich,  advocate. 

Simon  Frazer,  esq.  advocate. 

Procurators  for  the  PanneL 

Mr.  George  Brozon  of  Colstoun,  advocate, 
sheriff  depute  of  the  shire  of  Forfar. 

Mr.  Thomas  Millar^  advocate,  sheriff-depute 
of  the  stewartry  of  Kirkcudbright. 

Mr.  Walter  Stewart  younger,  of  Stewart- 
hall,  advocate. 

Mr.  Robert  Mcicira/ojA,  advocate. 

His  Majesty's  Advocate  moved,  that  the  Cri- 
minal Letters  against  the  pannel,  and  the  be- 
fore-name<l  Allan  Breck  Stewart,  might  be 
read.    And  the  same  was  accordingly  done. 

Lord  Justice  General,  James  Stewart,  you 
have  heard  the  criminal  letters  against  you 
read.     What  have  you  to  say  to  them  ? 

James  Stewart.  Sly  lords,  I  nm  not  guilty 
of  the  crime  of  which  I  am  accused,  and  1  re- 
fer to  my  lawyers  to  make  my  defence. 

Mr.  Walter  Stcrcart  for  the  pannel. 

My  Lord  Justice  General ; — I  appear  as 
counsel  for  this  prisoner,  James  Stewart,  who 
now  stands  at  your  lordship's  bar,  charged  as 
being  accessary  to  one  of  the  foulest  and  most 
barbarous  murdera  that  has  occurred  in  any 
country  ;  the  murder  not  only  of  an  innocent 
gentleman,  but,  as  will  be  proved,  the  pannel^s 


IS]  23  GEORGE  IL 

own  intinaU  friend;  and  that  without  the 
soialleil  provocation,  save  what  |[reatly  eo- 
hancea  his  ffuili,  Tix.  Glenure'a  being  in  the 
liiithtiil  diacbargfe  of  his  duty  in  an  office  en- 
trusted to  him  by  the  poUic  He  is  charged 
with  causing  Allan  Breck  Stewart  lie  in  Wait 
for  this  unhappy  gentleman,  and  take  him  off 
by  a  base  and  inhuman  assassination,  i  am 
sensible,  my  lord,  that  the  paonel,  accused  of  a 
murder  attended  with  so  many  aggraTatine 
circumstances,  most  appear  berore  your  lord- 
ship, his  jury  and  tlie  world,  in  a  f  ery  unfa- 
vourable Tiew.  A  certain  indignation  naturally 
arises  in  every  humane  breast  against  one  sus- 
pected of  so  horrid  a  crime ;  and  this  must 
net  be  a  little  increased  by  the  malicious  stories 
and  insinuations  industriously  spread,  which 
the  panael,  from -bis  close  copnnement,  has 
had  no  opportunity  of  contradicting,  fiut  now, 
as  he  has  put  himself  for  his  trial  upon  God 
and  his  country,  bv  pleading  not  guilty,  until 
ihat  country  finds  him  guilty  the  presumption 
is  for  innocepce.  This  he  has  a  title  to  de- 
mand. All  1  shall  ask,  however,  is,  that  as  I 
kaow  his  judges,  so  I  hope  his  jury,  and  all 
wlio  now  hear  me,  will  lay  aside  any  prejudice 
against  him,  and  will  form  no  opinion,  until  the 
oiroumstances  of  the  libel,  the  dtfeneea  which 
I  am  now  to  offer  against  it,  and  the  proof  of 
both,  be  attentively  considered.  For  myself, 
my  lord,  1  must  say  (and  I  believe  I  may  say 
the  same  for  all  the  gentlemen  on  the  same 
side  with  me),  did  I,  aner  the  strictest  inquiry, 
suspect  the  panncl  to  be  accessary  to  this 
murder,  it  would  be  the  last  actwn  in  my  life 
to  stand  up  in  his  defence.  But,  my  lordy  we 
have  gone  through  this  libel  with  the  greatest 
attention,  and  have  taken  a  view  of  the  several 
facts,  which,  after  a  precognition  of  above  a 
thousand  witnesses,  are  set  forth  to  support  the 
charge  against  the  pannel ;  we  have  heard 
from  the  pannePs  own  mouth  his  defences 
against  this  charge,  which  he  avers  he  can 
prove ;  we  have  heard,  from  the  unprejudiced, 
the  generai  character  he  bears  in  the  world, 
and,  from  the  whole,  cannot  help  concluding, 
that  he  is  not  guilty.  We  look  upon  ourselves 
as  standing  up  for  innocence,  when  defending 
this  pannel.  It  is  therefore  our  duty  to  defend 
him  with  that  warmth  which  innocence  claims 
as  its  due. 

In  the  entry  of  this  trial,  my  lord,  I  cannot 
help  complaining  of  most  intolerable  liardshi|>s, 
which  this  pannel  has  undergone  since  Nay 
last,  when  he  was  first  incarcerated.  My  lord 
advocate's  humanity,  his  tenderness  to  pannels, 
I  can,  from  my  own  little  ex|»erience  in  trials, 
subscribe  to.  The  unjustifiable  steps  1  am 
now  to  complain  of,  I  must  therefore  lay  to 
the  charge  of  the  private  prosecutors.  1  dare 
say  my  h>rd  advocate  as  little  kuew  of  them, 
as  he  will  now,  when  be  hears,  approve  of 
them.  The  pannel,  since  tbe  month  of  May 
last,  has  been  kept  in  the  ckwest  contiuemcni. 
^4>r  tke  first  six  weeks,  oo  mortal  was  allowed 
aopeilofaim;  afUr  €hat^  iadnrd,  fyr  some  short 
tme,  epWniitpiMW  mm  giMB  t«  Imi  wife,  and  one 
9 


Trial  qf  James  Stewart f 


[16 


or  two  more ;  but  any  who  could  be  thought 
proper  persons  to  prepare  defences  for  his  trial, 
were  carefully  denied  access  to  him.  And 
again,  for  a  considerable  time  before  his  trial, 
he  was  dose  confined,  and  all  admittance  re- 
fused. When  his  counsiel  came  to  this  place, 
and  wanted  to  see  him,  we  were  told  that  none 
were  to  be  admitted  without  a  warrant  from 
the  duke  of  Argyll ;  and  a  petition  was  ac- 
tually drawn,  to  be  presented  to  your  grace, 
when  a  message  came  allowing  us  access. 
His  sons  and  his  servants  too  have  suffered  the 
same  close  imprisonment.  And  all  tlus  not 
only  contrary  to  humanity,  but  directly  in  tbe 
Ace  of  the  act  of  parliament  1701,  which  dis- 
cbarges close  imprisonment  after  eight  davs, 
under  the  severest  penalties.  By  the  precau- 
tion of  this  private  prosecutor  too,  the  bar  has 
been  In  a  manner  shut  up  against  this  pannel; 
all  the  old  experienced  counsel,  though  not 
brought  to  maintain  th2  charge  against  him, 
have  been  retained  from  giving  him  their  as* 
sistance ;  otherways,  in  all  probi&lity ,  I  had  not 
now  been  employed  to  opoi  his  defence.  The 
pannel's  house  and  his  repositories  have  been 
three  several  times  searcbM,  and  papers  carried 
off  by  near  relations  of  the  prosecutors,  attend- 
ed by  a  military  force,  ana  without  any  war- 
rant. His  wife  and  his  sons,  who  by  the  laws 
of  God  and  man  cannot  be  called  as  witnesses 
against  him,  have  beeu  examined  upon  oath  \ 
some  of  them  five  different  times,  to  catch  at 
any  discerdaace,  had  there  been  any,  in  their 
declarations;  and  these  very  declaraiions  are 
now  proposed  to  be  brouglit  in  proof  against 
the  pannel,  while  the  declarants  themselves 
are  alive,  and  ought,  by  the  fundamental  laws 
of  this  kingdom,  to  be  exatnined  in  presence 
of  tbe  pannel  and  jury.  These  are  hardships, 
my  lord,  which,  thanks  be  to  God !  meet  with 
no  encouragement  in  this  now  a  free  country. 
The  time  was,  indeed,  when  tlie  feeble  kiw 
was  unable  to  protect  the  iunoooot,  when  the 
rules  of  justice  were  broke  to  pieces  by  the 
ruffian  bands  of  power ;  then  our  unhappy 
/country  groaned  under  tlie  intolerable  yoke  of 
arbitrary  power ;  then  was  scarce  the  form  of 
a  trial ;  tlie  best,  tbe  greatest  of  our  country, 
even  an  Argyll,*  fell  a  sacrifice  to  the  will  of 
tyranny.  But  now,  my  lords,  tbe  days  which 
our  fathers  wished  to  see,  and  did  not  see,  we 
have  the  happiness  to  enjoy.  A  fair  trial, 
which  the  noblest  could  not  obtain,  the  meanest 
are  now  entitled  to,  under  the  protection  of 
laws,  guarded  by  a  government  ever  watchful 
for  the  good  of'^its  subjects,  under  which  the 
keenness  of  private  prosecutors  will  meet  with 
no  countenance  or  encooragement.  The  pan- 
nel, enjoying  the  privileges  of  every  free-bom 
Briton,  is  now  to  stand  trial  before  the  judges 
and  jury  of  his  country ;  and  as  his  judges 
will  shew  tbe  greatest  impartiality,  he  ezp^la 
the  same  from  the  gentlemen  of  the  jury. 
They  will  judge  of  the  proof  brought  ifefoni 

*  See  tbe  Cmo  of  Ibe  earl  of  Avgyll,  vol 
a,  p.  8i3. 


IT]        ^^^HV^       J^^  Murder. 

ikm*  UviBff  in  ilietr  ey«  iKe  exim^le  of  Al- 
'kU    Go<r.    hv   VI  hosi?  linlv  tmine  tliev  have 

-:  or 

pnoB^  [  It  erery  man  is  jud^j^ed 

iccoriui^  w>.     Tbey  will  consider, 

lJBAt«ilu«>  M^  lo  iiu^wer  loGod|So  ibev  hafe 
Uiioiwrr  la Uie  wcirli),  who  will  make  a  narrow 
lAil  i]iip%rtaU  ftcrminy  inlu  th^ir  veiilict.  At 
tk  maatt  lime  1  cnutiol  Uelp  say  log,  that, 
indaUUic  hmrd«l  ;  1  has  suflcred, 

mpc«lbom«  ptr  <ane«  that  he 

it  10  IbIiM  I»>  ^  '  <ie  coun- 

9  «flk  biniAeli',  v^  parti ca- 

br  bmvMgeof  i  .  u.^i  .n^  character 

m  llie  worklt  vHoii  l^'^^^'  wUiki  proof 

llfMarwj  loiu  '  '-f^  }v\ar\c  ^  crime. 

Iiiftriur  tlialy'^  re  Tutly 

OlirfKflBd  tbadei  ifcred  rbr 

te  fftttiMl}  I  vriU  beg  ie47e  to  lay  before  iLe 
aa  aeootttii  of  the  facls,  which  haire 
nm  i»  ibb  profiecutiuo,  as  they  really 
I  uut  as  we  have  ^ol  Ihem  itom  the 
»  ovm  mouth,  at  a  time  when  it  wiM 
tatere&i  In  hide  the  truth   from   Uf. 
Thm  pumrit  my  brd«  wa«i  in  possessjuit  of  a 
htm  m  Ibe  «»tat«  of  Ardaliiel  culled  Glenduror, 
mi  nwm  Uckamao  ui  another  callt'd  Letter* 
mmm,  mUet  he  had  subset  for  about  70/.  Scots 
»  ycur,  wbvT)  f  :<— ^    -  ■■      appointed  factor  on 
tbecsiklftor  Muary  1749.    That 

C4**j."-i.c'J   ...--  Hi4jndxhip  whicii   he 
cnl^rtained  Inr  the  panael  ia  a  rery 
mArittiT      Hi-  i'.ivi>  him  1  li<' ftianag'e* 
Uir  \,  (lower 

km  ma^ii  .       i       aiise  the 

Un^  m%  he  ahould  think  proper^  and  took 
|tflHy  fraoi  the  paimel  bta  bdl  tor  th':^  rent  of 
lAs  CMiila*  al  which  it  had  been  surveyed  by 
tlvlttr«|i«  of  frxdivqui^r,  ieavitit^  him  to  apply 
liiK  oiMTphm  m  ibt  ii««  nf  Anlahierit  children. 
Hn*  agf^rencni  irill  be  instructed  by  dis- 
«baign  Mid  l«Un  tindf  r  Glrnure*a  owi»  haad. 
Iknnetiflw  Mvri!  Whitsutiday,  1761,  Glenure 
tbt  panit«i  Hk  yield  the  faroi  of 
«f  Itidi  be  th«D  ppfsessrni,  to  Mt^ 
■T  ilvlatfiolin  -  --^^icuLir  fripod  of 
bit,  ^bo  nflerrd  an  ii'<  nt.     Thi«i  the 

tptiAedtttely   l^..,^.,...*    vtilh,   %vithout 
a   wartiint^,   rind   tnok    tho    fiirm  of 
i^v  livc*»  from  Mr.  Camp- 
tni(inutd   to  iiplill  the 
iiij .  of  him  u'jirf^menl 
lire 
■  -'I   in 
>rm  ut  Wliit- 
L^aiiist  several 
of  ArdshieL    The 
idt  ht  didexpostu- 
it  ihii^  teUing  him,  he 
ri  iliem  out^  aince  they 
'''>''■■  *  -    /  ihaD  any 
oatlii  10 
u»ii  peratnted 
the    nnnnel, 
.^ti^lif  al  the  de- 


imoCthfi 


iQidtt  oul  1  ihoji  meiDarial 


A.D.  1752.  [18 

of  the  fnct,  and  presented  it  to  one  ofthebaroiia 
of  exchequer^  who  disapprnTed  greatly  uf 
Gleoure^s  procedure  ;  but  could  du  nothing  to- 
wards putting  a  slop  to  the  removing-,  as  a 
quorum  of  the  barons  was  uot  to  be  had  until 
ihe  next  exchequer  term.  But  be  kept  the 
(iieinorial,  promising  to  represent  tlie  case  to 
the  whole  barons ;  and  ad^leil)  that  he  h:id  no 
doubt,  but  they  would  (^ve  an  order  to  the 
factor  to  continue  the  teuunta  in  their  poisca- 
iiions.  The  pannel  upon  thi$  advised  with 
counsel,  how  the  teuanis  might  be  kepi  ia  )>09* 
aesaion  until  the  exchequer  term ;  and,  by  their 
advice,  applied  for  a  suspension  of  the  remov- 
ing to  the  court  of  session  :  And  a  bill  of  su«« 
jiensioQ  bemu  accoidingiy  presented,  a  sist  wi 
obtained,  and  the  bill  ordered  to  he  answered  |^ 
vhich  sist  was  intimated  to  Glenure,  upon  tli 
panners  returning  Into  lUk  country  ;  and  h% 
not  kuowing  the  forms,  having  carried  witli 
Kim  the  principal  bill  of  suspension,  and 
Glenure  immediately  givinir  in  aoswera^  Iba 
same  were  advised  without  the  bill,  and  it  was 
refused.  This  scheme  of  a  siit^pension  having 
failed,  and  Glenure  persisting  in  bin  resolution 
of  ejecting  the  tenants  npon  the  term  day  al 
whicii  they  were  warned  to  remove,  the  pjinneJ» 
upon  a  second  applicniion  from  the  tenaati, 
wrote  to  Alexander  i:»teivarl>  notary  public,  to 
come,  upon  the  16th  of  diay.that  thty  might 
protest)  and  take  an  instrument  ai^ainiit  Oieiuire, 
if  he  proceeded  to  fjectinn;  and  when  Alex- 
ander .Stewart  excused  himself,  tb«  t>anoeL 
sent  a  letter «  by  express^  on  the  14th  of  >Iayi 
10  Cbartea  ijlewart,  notary  in  Auchiniourj  to 
come  on  the  ssimo  errand,  and,  in  a  postscript^ 
bid  hirn  tell  WtUiam  Stewart  to  send  down  Hi, 
sterling,  to  pay  four  milk  cows  ivbich  he  had 
bought  for  his  use  at  Ardshiel,  and  which  the 
tenants  had  refused  to  deliver  until  they  got 
the  price,  ttiough  William  Stewart  bad  wrote 
for  them.  This  pofilscript  is  laid  hold  of  hy 
the  prosecutors,  as  a  circumstance  to  tix  llua 
murder  upon  the  (Mmnei.  But  this,  my  lord, 
I  atn  not  surprised  at ;  other  letters  of  bis 
ahare  the  same  fate,  though,  if  possible,  len 
criminal  than  this  one:  By  what  eonjumtioD^ 
or  what  mighty  magic  tbey  cau  be  made  ao,  I 
own  1  cannot  cot\jecture. 

The  panne),  in  further  prosecution  of  ib^ 
plan  of  takinio:  a  protest,  on  Thursday  the  14tb» 
bad  engaged  James  Stewart  younger  of  F 
cloich,  and  John  Stewart  younger  of  Bel 
dielish,  to  be  present  on  tlie  l^tlif  and  witness 
his  protest.  But,  on  the  Thursday  ovenhig, 
the  pannel  received  the  melancholy  arcounta 
Mf  GIrnurt'i  being  murdered  in  the  wood  of 
l^ttermore.  These  are  the  facts  which  gave 
rise  to  that  inveterate  malice,  which  the  hbel 
says  induced  the  pannel  to  conspire  the  deattt 
of  Glenure.  The  words  are:  '^  And,  on  ac- 
count uf  tliH  said  Colin  Campbeirs  accenting 
tbefuihi  office,  and  of  the  above-mentioned  and 
other  his  proceedings  la  the  faithful  ditMiharge 
u(  the  duly  thereof,  the  nnid  James  cooceivetl 
resentment,^*  ^c.  tlow  umutt  thia  eouclusioii 
if»  I  da  Uttmblv  tiibi&it  to  ynur  ImilAhipi. 

C 


I 


W] 


95  GEORGE  II. 


Triel'tfjamet  Steuart, 


[90 


After  Glennre  wat  made  factor,  year  lordship 
•€€0,  they  continued  io  the  greatest  friendship : 
you  see  the  pannel  managring  the  estate  of 
Ardshiel  under  Glenure,  removing  from  his 
possession  of  Glenduror,  at  Glen  are's  desire, 
without  putting  him  to  the  trouble  of  a  wsm- 
ing,  and  going  and  residing  under  Mr.  Camp- 
bell of  Aii'ds.  He  had  no  possession  in  Ard- 
shiel estate,  as  Lettermore  was  subset;  his 
management  of  the  estate  was  not  taken  from 
bim,  and  he  was  still  allowed  to  remit  part  of 
the  rents  4o  Ardshiel's  family.  He  has  no 
eonnexion,  by  blood  or  otherways,  with  the 
tenants  warned  to  remove;  there  is  not  so 
much  as  one  of  them  of  bis  name.  The 
estate  was  annexed  for  ever  to  tlie  crown,  and 
was  ia.  a  few  months  to  fall  intoihe  hands  of 
commissioners,  appointed  by  his  majestv,  wb^ 
would  probably  restore  the  tenants,  as  they  of- 
fered more  rent  than  those  put  in  by  Glenure. 
Can  any  mortal  believe,  that  the  |>annel,  be- 
canse  Glenure  was  to  execute  a  removing 
against  these  tenants,  should  enter  into  so  exe- 
crable a  design,  as  to  assassinate  that  gentle- 
man by  the  hands  of  Allan  Breck,  on  the  14tb, 
when  we  see  bim  pursuing  quite  another 
acheme,  sending  for  a  notary  and  witnesses  to 
take  a  protest  against  bim  on  the  15th?  In  all 
cases  of  murte,  1  do  humbly  apprehend,  it  is 
of  necessity,  that  there  should  be  malice  afore- 
thought, which  Is  the  essence  ot;  and  consti- 
tutes the  crime ;  and  all  passions,  particularly 
one  of  so  extraordinary  a  nature  as  this  malice, 
must  have  had  some  cause.  I  do  submit  to 
your  lordtbi|>s,  if  there  b  the  smallest  apfiear- 
ance  of  that  malice,  or  any  thing  like  a  cause 
assigned  for  it.  But,  even  taking  the  story  as 
it  stands  in  the  libel,  it  is  a  tale  that  can  gain 
credit  with  no  mortal.  What  earthly  pur- 
pose could  the  pannel  serve  by  such  a  desperate 
piece  of  villainy?  Would  the  murder  of 
Glenure  prevent,  the  removal  of  the  tenants  ? 
Would  not  the  murder  of  Glenure  deprive  him 
of  the  liberty  which  tliat  scotleman  had  given 
bim  to  uplift  the  rents?  Would  it  not  put  ft  out 
of  his  power  to  help  bis  brother  ArdshiePs  fa- 
mily ?  The  pannel  is  allowed  to  be  •  judtcioua 
man,  prudent  in  his  actions  beyond  most  men 
of  his  rank  in  the  world.  Can  it  be  believed  he 
would  do  a  thing  so  directly  contrary  to  his  in- 
terest ?  Suppose  him  capable  of  the  crime,  we 
roost  suppose  him  the  greatest  fool,  as  well  an 
the  greatest  monster  that  ever  disgraced  hu- 
manity. But,  is  this  his  character?  No,  my 
lord,  a»he  is  a  sensible  man,  an  all  who  know 
bim  will  say,  he  is  a  humane,  peaceable,  good- 
natured  man,  looked  upon  as  a  father  where 
be  liFes ;  straiM(er8  were  happy  to  get  their 
children  under  bis  care,  as  in  net  he  is  tutor  and 
curator  at  this  very  time  to  several  orphans, 
who  .have  not  the  smallest  relation  to  him. 

Here,  my  lord,  I  will  for  a  little  leave  the 
naanel,  anjf  pve  an  acoooat  of  Allan  Breck 
Stewart,  wbo  b  diarged  as  the  committer  of 
this  Burdtr,  having  entered  into  a  wid^ed  coo- 

rcywhb  the  paonel  for  that  purpose.   Wbe- 
he  was  the  attual  laiirdflnr  or  Mt,  the 


pannel  knows  not ;  neither  is  tt  my  business  to 
say.  1  shall  only  point  out  what  oonnexiona 
were  betwixt  the  nannel  and  Allan  Breck,  leav* 
ing  it  to  your  lordship,  and  the  jury,  to  judge 
if  the  circumstances  of  these  connexions,  as  I 
shall  now  open  them,  or  even  as  they  are  laid 
in  the  libel,  are  sufficient  to  tix  upon  the  pannel 
his  being  a  conspirator  in  this  execrable  plot. 
At  the  same  time,  there  is  no  question  but  the 
prosecutora  must  fix  the  actual  murder  upon 
Allan  Breck,  otherwise  the  charge  against  the 
pannel  entirely  flies  off. 

This  Allan  Breck  Stewart,  my  lord,  was  the 
son  of  one  Donald  Stewart,  a  particular  friend, 
and  distant)  relation  of  the  pannel's.  He  died 
while  his  children  were  innnts,  and,  upon  his 
death- bed,  committed  them  to  the  care  of  his 
friend,  naming  him  tutor  and  curator  to  them. 
The  pannel  faithfully  executed  this-  trust,  took 
care  of  the  children's  education,  and  managed 
their  effects  to  the  best  advantage.  Allan  turn- 
ing extravagant,  when  he  grew  up  to  man's 
estate,  and  having  spent  what  was  left  him  by 
his  father,  inlisted  io  his  majesty's  servicot 
without  clearing  accounts  with  the  pannel,  who 
used  to  supply  liim  with  money,  and  pay  little 
debts  for  him,  even  after  he  became  a  soldier, 
though  he  knew  he  had  already  given  him 
more  tlian  bis  patrimony.  This  the  pannel 
thought  he  owed  to  the  memory  of  his  deceased 
friend.  Breck  continued  in  his  majesty's  ser- 
vice until  the  battle  of  Preston,  where  being 
taken  prisoner  by  the  rebels  he  inlisted  with 
them,  continued  with  them  during  the  libellion, 
and  afterwards  made  his  escape  into  France, 
and  inlisted  in  the  French  service,  where  he 
still  continues.  Since  he  first  went  over,  he 
has  been  in  use,  now  and  then,  of  coming  back 
to  Scotland,  and  staying  a  few  months  with  his 
relations;  be  commonly  landed  first  at  Edin- 
burgh, and  lodged  in  the  house  of  one  Hugh 
Stewart  There  he  seldom  went  out  but  in  the 
ni^ht,  and  more  than  once  narrowly  escaped 
bemg  apprehended  as  a  deserter.  IV  hen  he 
came  up  to  Rannoch  or  Appin  among  his  rela* 
tions,  be  used  to  stroll  about  without  any 
settM  residence ;  and  where-ef  er  he  came,  he 
generally  threw  oflfhis  French  clothes,  as  they 
were  remarkable  and  improper  for  that  hilly 
country,  and  borrowed  from  any  acquaintance, 
where -ever  he  happened  to  m  at  the  time. 
Among  others,  he  used  to  visit  at  the  pannel's 
house,  though  he  came  sddomer  there  than  to 
other  places  in  the  neighbourhood,  as  the 
pannel  used  to  take  a  good  deal  of  freedom  in 
olamin^  his  conduct  and  extravagance.  About 
the  beginning  of  Mareh  last  became  over  from 
France,  was  at  the  bouses  of  Balachallan 
and  Annat,  and  went  from  thence  to  Glen- 
bdcky's  house,  where  he  continued  until  the 
end  of  Maroh,  and  while  there  he  threw  aside 
his  French  clothes,  and  wore  clothes  belonging 
to  GlenbuckjT,  or  his  brother.  In  the  ban- 
ning of  AunI  be  came  to  the  pannel's  house, 
immediately  before  the  pamiel  went  to  Edtn- 
b,  and  staying  a  day  or  two,  went  off  with  a 
cobmnd  ahoii  ooct  wMi  dour  battOD|»  audi 


bmsl 


Jbf  Murder, 

flh«r  MHf  of  ibe  e(>untry  dress,  whicti  he  bad 
|ldlM  up  sl>out  the  punneFs  bouse,  rdiI  con- 
iMi4  sliwiii^  Aboat  itie  cnunlry  in  th&l  dress, 
ibe  hf*^'  ""<!  of  April,  wlipo  he  returnefl 
kti  st%  and  Brayed  a  Kinc^le  niif ht. 

11...  i  ;  rijy^  iibout  one  o^tiork  ahar* 
lie  returned »  »ind  fmmd  the  panne)  upon 
where  his  servants  u  erfi  covei  in^  pota- 
Tliey  continued  there  about  a  quarter  of 
If  in  iKe  bcsiripg  ofiht!  servants,  when 
^tne  froiii  Mr,  CacnpUrtl  of  Airrli 
l»tke  pttnnd,  desrringf  hm)  to  come  to  lam  at 
Kalttpofi  bti9ines«;  uj>on  wbich  tlie  pnnel 
nvlketl  with  Breck  from  ihefiirld  lu  the  nonse, 
it  about  fjity  yards  distance,  nnd  leavioer  bim 
thae  ftithoiii'goiag'  in^  ivent  direc^tly  to  Keil ; 
coDtiDoed  there  until  betwixt  teif  »nd  eleven  at 
ni^t,  when  returninGr  home  tie  luund  there 
•ereral  rlran^'f  ra  betfides  A  lion  Ureck.  They 
nipped  all  lOj^^uther,  and  continued  in  oneraom 
until  ibey  «  f  ut  to  bed,  lireck  lay  in  the  barn 
mih  the  panner^  jions,  and  one  Archibald 
Camcroo.  The  pan  net  batl  no  private  confe- 
with  bim  ;  they  were  not  one  moment 
iWes,  nor  ever  in  company^  but  before 
faniily  and  the  strangers.  Early  in  the 
Dg  of  Tuesday  the  12lb,  before  Breck 
out  of  bed,  and  withont  set'in^  or  «|}eakinj^ 
rUh  bim,  the  pauuel  went  to  Appin^s  hou^ei 
Breck  was  fj^ne  before  lie  returued,  and 
nel  bA»  never  &eeti  him  since.  What 
be  carried  otf,  be  does  not  kuo%v  ;  but 
tutborised  me  to  say,  tlint  what  in  laid 
tr  -  '  *  !ient  ftja^'  be  trut%  that  be  went  off 
*o  I  oat  which  he  n&eil  before.     That 

be  v^i^iii  i'f  lUlbicbtfli^i,  Irom  that  to  Gteiico'a 
boo*e,audtbentoCallart,  and,  on  Wednesday, 
—  -  liack  to  ISaliachelj!»J»,  whtfre  he  stayed  nil 
On  Uic  Tburaday,  in  the  forenoon,  he 
Bfttlaehelisb's  servants  in  carryings  ont 
,  aud,  after  dinner,  he  ^t  a  tmI,  and  went 

itiy,  conlioued  tome  time  iu  sight  of  Bal- 

llifadi*u  and  bi»  servants,  who  were  tarrying 
001  tbe  dung  ;  but  going  a  little  up  the  water, 
a  ridng  grourtd  intercepted  their  view,  and  they 
lair  no  more  of  him. 

Thm,  my  lord»  is  a  true  account  of  the  con- 
nexion bftwixi  Ihc  paanel  and  Allan  Breck 
'  murder,  as  it  will  come  out  upon 
H  draw  this  conclusion^  that  tbia 
I  ( :irii?»piiacy  must  have  been  laid  and  ron- 
brtween  them  in  a  few  seconds,  wliile 
nel  wa«  w:dkuijj  from  his  potato*  gf round 
tilns  huu&e,  at  hiiy  yards  disinnce  ;  tor  at  no 
dlltf  lico€  bftd  they  any  prit'ate  conference. 
Tkmehuu^lng  the  cbjlhcs,  your  lord^hi^^  sees. 
Via  alioifether  uuknowu  to  iLe  puunel,  and 
what  Breck  was  io  use  to  do  at  ibe  panner^ 
booa«,  and  over  ibe  i«  hole  coun try.  But  lok- 
kf  llie  ttory  oa  It  stands  in  ihe  bbeK  «vhu  can 
pOMlbly  befieve  that  the  pannel  wotdd  have 
^ven  Breck  his  own  c1otiifc>$i  to  diii^uise  bim- 
adf  fur  comnjiitiu^  this  murder,  or  that  Bceck 
#oolil  have  put  ou  tbia  diifftiiiie  tbur  diiys  be- 
$m9  the  murder  bapptnejlf  Tbe  libel  says^ 
.Olttuurewas  ccrtaiufv  expected  on  ibe  Thura- 
diay  to  return  from  i'oit^VVdliaffi  to  Ardshiel. 


a  1752.  [« 

Would  Breck  then  bare  put  oil  bia  disguise  on 
the  Monday,  and  g^one  about  piddtcty  in  it  ?  Nu» 
surely » my  lord  ;  children  would  hnv'o conducted 
ft  plot  better  than  tht«  ;  aii<l  yet  upon  thiscircum- 
stancp  of  cbang^insf  clothes,  as  incredible  as  it  ii 
Ikhejy  repreateiited,  stands  one  half  of  the  pro* 
secutor'a  hopes  (if  the  libel  contains  them 
afl)  of  fixinff  this  crime  upon  the  prisoner. 

J  proceed  to  lay  before  your  lonhbips  the 
aequd  to  Glcnure's  murder.  Betwixt  six  and 
seven  on  Thursday  evening,  Mackeociif, 
GleouiVfl  servant,  called  at  the  panners  bouse^ 
and  informed  himi  that  his  mailer  was  shot 
dead  in  the  wood  of  Lettermore.  Tl»e  Hbel 
says,  that  the  pannel  ajmeared  nowise  Eirr* 
prised  or  concerned  at  the  news;  and  that 
neither  he,  or  any  of  his  servants,  went  to  look 
after  tbe  corpse.  IM&ckenzie  will  not^  tispe  not 
say  so.  The  pannel  shewetl  that  surprize, 
that  deep  concern,  which  every  innocent  man 
must  feel  at  so  uiiexj>ectpd  and  melancholy  an 
accident  He  directed  Mackenzie  the  nearest 
road  to  Glenduror,  to  call  Mr.  Campbell  of  Bo- 
kveolan,  Gtenure*s  friend,  and,  in  the  mean 
time,  sent  such  of  his  family  as  could  he  spared* 
ami  several  oi'  his  neighbours,  to  take  care  of 
the  corpse.  Ou  Friday  nnoruio^,  theday  after 
the  murder,  the  pannel  received  a  message 
from  Allao  Breck,  by  Donald  Stewart,  rtepbetir 
to  Ballachelisb,  who  bad  seen  bim  iu  tlie  fields 
aliout  nine  o^clock  in  the  evening  before,  when 
Breck  told  him^  that  as  Glcnure  was  killed, 
there  would  be  a  strict  search  for  his  murderer  ; 
at)d  he  bcin^  a  deserter^  it  was  proper  for  hiin 
to  keep  out  of  tbe  i^ay ;  be  was  iherefore  re- 
solved to  leave  the  country  immeihatety  ;  that 
he  would  hide  himself  fur  a  day  pr  two  in  lb©' 
desart  of  Koali^uaooau  ;  and  as  be  had  no 
money,  he  herrffed  of  Donald  Stewart  to  go  to 
the  panne],  and  intbrm  him  of  this,  and  in  treat 
bim  to  send  a  little  money  to  bim  at  Koalisna- 
coan.  Donald  8tewart  they  said  to  him,  that 
he  hoped  be  had  no  band  in  Gleoure's  murder 
himself:  npon  which  he  took  God  to  wilnest 
be  had  none ;  but  his  being  a  deserter  to  tbe 
highland  army,  was  tiie  only  cause  of  his  ab- 
sconding, as  he  was  sure  be  would  be  hanged| 
without  mercy>  if  he  wa*  seized.  Upon  re- 
ceiving this  message,  the  pannel  sent  Alex- 
ander Stewart,  packman,  to  Fort- William,  tivj 
one  William  Stewart,  a  merchaut  there,  lo  get 
tiva  guineas  from  him,  telling  bim,  at  (be  samo 
time,  that  it  was  for  the  use  of  Allan  Breck 
Stewart,  who  was  ipoiiig  ofi'thi^countiy,  as  he 
was  a  deserter,  to  shun  the  search  which  would 
be  mode  for  the  murderer  of  Glenure.  Upon- 
the  packman's  return,  be  found  the  panod  in 
the  custody  of  a  party  of  soldiers  ;  aoil  as  h# 
had  got  but  three  guineas  from  William  i 
Stewart  at  Fort-Wdliam,  the  pannel  gave  bim  { 
other  two,  and  bid  him  go  to  Koalisnacoani  ^ 
where  he  wuidd  hud  Allan  Breck,  nod  give 
him  tkie  five  guineas.  Upon  which  the  pack^ 
man  went  home  with  tbe  pannet's  uife,  who, 
be  ifi  since  informed,  gave  bim  Breck's  French 
clothe<i,  which  he  had  lel\  ai  tbe  panuershOiii*  _ 
the    Mouday  bdore^    bat  vvbicb  tbe   pwia  *" 


aS]  as  OEORGE  u. 

knew  noChing  of.  As  to  the  long  episode  in 
the  iodictmeDt,  namtiug  the  oon? ereations  be- 
twixt Allan  Brack  aed  the  bouman,  as  the  pan- 
nel  knows  nothing  of  then,  they  shall  pass 
unnoticed  by  me.  Only  I  beg  leave  to  make 
this  single  observation  to  the  gentlemen  of  the 
jury,  that  when  this  part  of  the  libel  comes 
under  their  consideratjoo,  they  will  observe, 
that  it  can  he  proven  by  the  oadi  of  but  one  wit- 
ness, and  that  witness  swearing  only  to  what 
be  heard  Allan  Breck  say  ;  consequently  the 
mistaking  one  word  must  be  of  the  most  fatal 
consequence,  for  this  reason,  hearsay  evidence 
is  altogether  rejected  in  law.  They  will  like- 
wise consider,  that  what  Allan  Breck  says,  is 
said  by  one  who  wanted  to  clear  himself  to  the 
bouman  of  the  murder  of  Olenure,  which  the 
bouman  charged  him  with ;  for  which  reason 
be  might  be  tempted  to  throw  out  insinuations 
against  others.  JLet  the  jury  keep  these  hints 
in  their  eye,  and  then  let  (hero  give  what 
weight  to  this  part  of  the  libel  their  consciences 
can  allow  them.  The  pannel  was  taken  into 
custody  on  the  16th  ;  on  the  19tb  it  was  ru- 
moured in  Fort- William,  where  he  was  incar- 
cerated, that  AlUn  Breck  was  the  murderer  of 
Glenure.  No  sooner  does  the  pannel  hear  this, 
but  he  writes  a  letter  to  Mr.  Macfarlane,  writer 
to  the  signet,  expressing  the  greatest  abhor- 
rence and  detestauon  at  the  murder  ;  tells  him 
that  Allan  Breck  was  suspected  to  be  the  com- 
mitter of  it,  as  he  was  that  day  seen  near  the 
place  where  Glenure  was  killed,  and  imme- 
diately disappeared.  He  expresses  his  desire 
cf  having  him  brought  to  justice ;  gives  a  par- 
ticular description  of  his  looks  and  dress  ;  and 
further  says,  he  was  probsbly  gone  south,  to 
take  the  first  opportunity  of  going  abroad ;  and 
that  he  commonly  lodged  in  the  house  of 
Hugh  Stewart  at  the  back  of  the  Fountoin- 
well,  when  he  came  to  Edinburgh.*  This 
letter  too  is  bronght  as  a  point  of^littey  against 
the  pannel.  What  strange  and  unaccounUble 
torturing  of  the  most  upright  actions  must  there 

*  ^*  The  letter  here  mentioned  from  the 
pannel  to  Mr.  John  Macfarlane,  writer  in  Edin- 
burgh, had  been  shown  to  the  governor  of 
Fort- William,  and  was  receive«l  by  Mr.  Mac- 
farlane at  Edinburgh,  about  a  fortnight  before 
any  of  the  two  adverlisemente,  (vis.  one,  by 
the  lords  of  the  regency,  and  the  other  by  the 
relations  of  Glenure,  each  offering  a  reward  of 
100/.  for  apprehending  Allan  Bredc)  were  puh- 
lished  in  the  news-papers ;  and  really  contains 
a  truer  and  more  exact  description  of  Breck 
than  either  of  tbem  does.  But  why  the  proper 
use  was  not  made  of  this  information  frem  the 

erisoner,  is  to  this  day  a  secret,  and  remains  to 
e  accounted  for  by  bis  then  doer.  .  It  was  un- 
doubtedly a  great  neglect  in  him,  and  proved 
hurtful  to  the  helpless  James  Stewart:  for 
surely  it  shewed  an  early  fondness  in  him  to 
have  the  murderer  discovered,  aa  no  guilty 
verson  in  hia  senses  would  direct  bow  to  know 


TrudofJamei  Steanirt, 


[24 


and  find  out  his  accomplice'*    SapptemtDtto 
thnTrialofJaiMiStemrt. 


be,  to  make  this  criminal?  This  pupil,  this  re« 
lation,  this  friend's  son  of  bis,  whom  be  bad 
supplied  with  a  little  money,  to  keep  him  out  of 
the  hands  of  the  military  law  as  a  deserter,  no 
sooner  does  he  hear  him  named  as  being  j^ilt^ 
of  this  horrid  murder,  but  he  does  all  m  his 
power  to  have  him  brought  to  justice:  strange 
It  is  indeed  to  make  this  a  crime !  What  shonld 
the  pannel  have  done  ?  Should  he  haye  con- 
cealed the  suspected  murderer  P  No,  my  lord, 
he  acted  a  more  honourable  part,  such  a  part 
as  tliis  court  will  approve  of;  such  a  part  as 
every  member  of  it  would  have  acted  himsell'.* 

As  1  have  taken  up  too  much  of  your  lord* 
ship's  time  already,  I  shall  hut  just  mention 
such  defences  as  occur  in  point  of  law,  leaving 
them  to  be  insisted  on  by  the  gentlemen  who 
are  to  support  me. 

And,  in  the  first  place,  however  willing  the 
pannel  may  be  to  stond  the  issue  of  hb  trial,  it 
M  our  business,  as  counsel  for  him,  to  lay  hold 
of  every  handle  against  it.  1  therefore  submit 
to  the  Court,  whether  this  pannel,  who  is  only 
charged  as  accesssry,  can  be  tried  before  the 
principal,  Allan  Breck,  be  iirst  discussed.  I  do 
most  humbly  contend,  he  cannot ;  Imo,  Be- 
cause, if  the  contrary  practice  were  allowed, 
probation  might  be  led  against  the  principal, 
though  absent,  contrary  to  the  fundamental 
law  of  this  nation;  and  it  must  first  be  proven 
he,  the  principal,  committed  the  crime,  *•  primo 
*  debet  constare  de  corpore  delicti,'  before  the 
accessary  can  be  convicted.  Sdo,  If  the  ac- 
cessary must  defend  the  absent  principal,  it 
may  be  of  the  most  fatal  consequence  to  both, 
though  innocent.  The  princtpal's  greatest 
enemies  may  be  led  as  witoesaes,  and  such  de- 
fences as  would  have  been  sufficient  to  excul- 
pate him  entirely,  may  be  omitted.  3iio, 
These  priucipals  are  followed  by  the  opinions 
of  all  lawyers  who  write  U|K>n  the  criminal  law, 
and  likeways  by  the  practice  of  neighbouring 
nations,  particularly  that  of  fingUnd ;  where 
the  principal  must  be  attainte<l  alter  verdict  or 
confession,  before  any  judgment  can  be  given 
against  the  accessary.  But,4to,  What  I  now 
plead,  1  humbly  apprehend  to  be  tbe  law  of 
Scotland ;  for  so  it  is  expressly  said,  Reg. 
Msg.  ch.  96,  b.  4.  Cluon.  Attoch.  ch.  Bd,  and 
39sUt.  David  S.  And,  agreeable  to  these,  is 
the  opinion  of  our  great  criminal  lawyer  sir 
George  Mackeniie,  Uid  down  in  the  strongest 
terms  in  his  title  Art.  Part,  paragraph  9th. 
5to.  I  must  object  for  the  pannel  to  the  rele- 
vancy of  this  libel,  that  the  facte  and  circum- 
stences  mentioned  in  it,  though  they  should  he 
fully  proven,  are  not  sniicient  to  infer  his 
being  accessary  to  this  murder.  Every  libel  ia 
a  syllogism :  the  major  propoaition  contains 
the  crime,  and  the  laws  against  that  crime  ; 
the  minor  containa  the  facts  charged  againat 

^  "  Here  Mr.  Stewart  was  stopped  by  the 

D of  A-"—  and  rebnkcd  for  saying  that 

he  or  any  of  tbe  other  two  judges  would  havn 
acted  such  •  part.'*  SiMtaiiit  to  tbn  Trial 
ofja       " 


25] 


Ji^  Murder* 


Ihci^jtaotl;  aod  the  eoiiclits^ion  is,  tbat,  from 
ihate  i¥ci»,  be  is  ^itiUy  of  tlie  crime,  unci  de- 
•ecMs  ta  iiidef  tbe  p« ins  of  law.  Nov^f  it  Ike 
Afefilt  cteffed  do  not  amount  to  tbe  cnme^  tbe 
■wnfiiMnii  niy4l  be  iklse,  aiiil  ttie  libel  iiT«le- 

dU  TliiSy  I  bambly  apprehend,  is  tbe  pre- 
Me,  From  the  above  narration  of  I  be 
what  obiter vaiions  1  bave  alreatly 
I  iViem,  1  bofic  your  k>rrisbips  will  be 
ofmmmtif  thai  ibe  circuru stances  char^^ed  in 
the  ubel  are  »o  extremely  vogue  and  Iriviat, 
Ibat  iti^y  are  not  suffident  to  brin^  the  pannel 
OB^cf  911  much  as  a  suspicion  of  being*  g'uiUy 
•Ttliii  bornd  crime  laid  to  bta  ciiarge. 

Ifjraur  lordaiiipfi  «ball  tbink  proper  to  repel 
ikrM  defimoea,  and  to  remit  tbe  pannel  on 
Ibii  iodictmettt  to  the  knowled^^e  of  an  assize, 
wt  huiDbly  hope  you  will  allow  yg  a  proof 
if  aU  facta  ami  circumstaoces  ibat  cun  tend 
to  liit  cxculpalicm  ;  particularly  of  his  friend- 
"  *  >  wilb  Gleiifrr«  ;  of  Allan  Breck'a  b<*iog'  a 
er,  and  beio^  iu  use  to  put  of}'  bii»  French 
ciotbcs,  and  put  on  clothes  belungingr  to  the 
family  where  be  happened  to  be  at  the  time  ; 
•f  the  panners  having  no  private  confercnci^ 
»itb  birti  preceding  the  murder  i  of  the  mes- 
nfe  which  tbe  pannel  |^t  Iram  him  after  tbe 
viurtler,  litddiog^  him  send  bim  a  little  money 
to  Koalisnacuai],  where  he  was  going;  and^  m 
ffoeral,  of  all  other  defences  that  may  occur 
11  ii0oeasar^  to  tbe  pannel  in  tbe  course  of  his 
trill.  I  will  conclude,  my  lords,  with  a  single 
wari  to  tlie  geuiiemen  of  the  jury,  that  tbe 
Diore  fla{^raut»  the  more  atrocious  any  crime 
iti  the  more  clearly  and  disimctly  they  will  re- 
ipiire  it  to  be  made  out  to  them  :  that  as  tbe 
ctioie  It  pr(i]>osed  to  he  fixed  ujion  tbe  pannel 
by  pfcaumptiTe  evidence  alone,  they  will  be 
mmov  in  distinguishing  betwixt  audi  pre- 
Mafpyona  as  are  cooclusive,  and  such  as  are 
aai  so  ;  between  such  presumplinni  as  cfin 
ariie  from  no  oiber  cause  but  the  pannel's  be^ 
bg*  io  a  conspiracy  to  murder  Gleuure,  and 
•QCh  aa  are  mure  naturally  eiin$itrued  to  hare 
mea  froto  other  causes.  "  If  tbey  Unil  such 
prciBniptiuos,  as  that  they  can » before  Almighty 
8ed,  bnn^'in  a  verdict  Guilty^  it  is  their  duty 
Id  4a  ao,  and  tbe  law  will  have  its  vengeance. 
But  lol  tbetti  have  this  3ilway»  in  tbeir  eye, 
titti  belter  twenty  guilty  escape,  Ibao  that  one 
BBoceot  man  should  suffer  death  by  their 
Icnlict. 

Mr.  Robert  Mack  in  tosh  ^  for  the  Pannel. 

^Mj  Lord  Juitice-General,  and  Lords  Com- 
t  of  Jusliciary  \  1  appear  also  to  con- 

»iDyifiiall  mite  towaida  the  defence  of 

t^ts  fMHodf  who  has  the  misfortune  to  be  ac- 
caanl  ^f  «  crime,  wbidi  every  binly  must  ad- 
mil  lo  b«  of  the  deepest  dye ;  and,  as  kid  in 
Ifcft  iviftktiDent,  attended  with  the  moit  agg-ra- 
*  J  drcimstinces ;  and  I  do  it,  my  lords, 
<Kil  of  to  opinion  of  my  being  in  any  de* 
1  to  the  task,  a  share  of  which  t  have 
to  I  bot  rather  tliat  a  poor  man^  stand ^ 
iug  lllil  for  bis  life,  may  not  be  absolutely 
'^       "    #f  isiitMce,  irb«ii  UDCominoii  en- 


A.  D.  1752- 

deavours  bare  been  uaed  to  deprive  him  ofabl« 
help. 

My  lords,  I  dare  sa}*,  every  one  who  speaks 
in  thf*!  cunPte^  on  whatever  side,  will  bet^iu  iviih 
exprcssinir   a  d<itei*iatioii  of  tbe    crime  now 
char^^d  ogainn  the  pannel ;  if  not  in  accusing 
the  pannel,  yet  in  this  we  shall  all  agree,  be| 
Gondentn   the  miserable   person,    whose 
srience  accuses  himself  of  it ;  whether  he  no* 
stands  at  tbe  bar«  or  whether  be  flies  from  tbt 
aveugitig'  sword  of  jnslice.     1  mmt  acknow* 
Jetlge,  that  if  the  pannel  has  been  guihy  id, 
aooessary  to  this  murder,  beyond  all  C4Mitrii»| 
versy  it  conKtiinles  him  one  of  the  gi  eaten 
criminalu  that  tbid  or  auy  other  country  caul 
affunl.     Murder  is  a  hdnous  crime,  whether  jt| 
is  the  fate  of  tbe  eminent  or  the  obscure.     But  * 
thi^  murder  seems  tti  be  a  aitnphcatioii  of  all 
puilt ;  and  as  my  duty  calls  me  to  plead  iu  de- 
fence of  one  laKouriu!^  uuder  such  an  accusa/* 
tioo,  1  cauuot  do  it  but  \%ith  the  utmost  con* 
cern.     The  very  tnentiou  of  such  barbahtv  anil 
inif)uity,  as  was  just  now  reiiearsed,  could  not 
fail  to  move  every  humane  breast;    but  tbe 
rpadiocr  of  an  indictment,  such  as  we  have  it 
little  while  ago  heard,  is  enoufj^b   to  iu$pirt,J 
horror  t ven  in  the  ionoceut/    It  is  still  bardef* 
upon  me,  when  I  consider  the  unhappy  suf}erer 
in  that  dreadful  scene^  which  is  now  to  be  the 
subject  of  trial  J  one  agaiD&t  wboiie  life  1  should 
be  tbe  last  man  to  excuse  the  smallest  attempt ! 
one  whom  1  knew,  whom  )  regarded,  whom  I 
bad  the  honour  to  be  in  friendship  with  :  bia 
draih,  bail  it  been  common,  would  liaveatfect- • 
etl  me  ;  hut  his  munler  atfiicts  me.    1  sincere  1^1 
reirret  it,  for  his  own  sake,  lor  tbe  sake  of  biSj 
friends,   f*ir  the  sake  of  the  poor  disccmsoluHJ 
lady»  who  now  weeps  over  her  own  widowily^  J 
and  the  orphan  state  of  her  infant  cbihlren  ;  ij 
regret  it  f<»r  the  sake  of  the  whole  (and,  that] 
stands  polluted  by  the  cruel  shedding  of  in  no*  I 
cent  blood  I  and,  in  a  particular  maoner,  do  ll 
regret  it  fur  the  sake  of  tbe  Highlands  of  8coti^l 
land,  for  which  I  own,  from  private  con nexioua,] 
J  cannot  help  bAviug  a  regard,  uud  nhicb  I  am  X 
afraid  have,  by  this  unlucky  accident,  su^Vred  I 
a  deep  |K»litical  wound,  that  it  may  take  timt  | 
to  rub  t»lf  the  effects  of;  as  being  oble  to  fur*| 
ni«h  80  eiuiueot  an  instance  iif  barburi^m,  ini 
spile  rd'  the  noble  attempt  of  the   legi^lftiureiij 
and  of  all  in  the  ailmintstratinn,  to  polish  aii4( 
civilize  ihem,  to  reduce  ihcm  to  the  righteouij 
plan  of  ihe  government  of  this  country,  and  ttt! 
a  confitiLiiiLoual  cquahty  with  the  rest  of  thfrl 
united  kingd(»m. 

My  lords,  for  these  reasons  do  I  most  heartily 
}otn  in  deploring  this  fatal  catastrophe.    At  tbe 
same  time,  my  lords,  the  defence  i  am  now  to 
plead,  fixes  my  attention  u))on  a  mure  agree- 
able prospe^'t;  that  of  innocence,  ami  nut  of  J 
g-uilt;  and  the  importance  of  tbe  issue  justly  I 
chalkntrcs  my    most  Baogiiiiie  eflbrts.      V\aI 
have  before  its  the  life  and  fortune  of  a  man,  mi 
countryman,  I  believe  an  innocent,  though  no^l 
oused  oue^  I  mu%itbebeve  htm  innocent*  rmi  onlrf 
as  I  am  yet  ignorunt  of  aoy  proof  that   I  thniK 
should  coDTict  bim,  but  more,  as  1  have  oat 


S7]  25  G£ORGE  IL 

been  able,  in  a  Terjr  ftrict  ioTeatigitioo,  Id  difc* 
cover  from  hitnst;!!  toy  fymptom  ofguiti ;  and 
as  the  pematioa  of  ioDOceoce  may  give  cowmge 
to  defend,  so  1  persuade  myself  I  need  make  do 
apology,  if  I  am  able  to  speak  with  that  ear- 
nesUiess  and  freedom  that  becomes  the  conse- 
quence of  what  is  at  stake.  And,  on  the  other 
hand,  I  hope  to  be  ezcusetl,  if  I  fail  in  that  ac- 
curacy and  distinctness,  which  1  conid  wish  to 
obserre,  from  a  just  regard  to  the  dignity  of 
this  high  court,  and  to  the  presence  of  a  crowd- 
ed, and  I  dare  say,  an  interested  audience,  who 
are  ready  to  swallow  with  greediness  erery 
word  that  shall  he  spoke  on  this  subject. 

My  loiods,  before  I  go  farther,  I  cannot  omit 
obserfing,  what  I  am  extremely  sensible  of, 
and  that  is,  the  disad?antages  under  which  this 
|>snnel  enters  upon  a  trial  for  himself,  and  all 
that  is  dear  to  him  in  this  world,  for  what  con- 
oerus  ail  that  is  precious  to  him  in  another ; 
disadvantages  which  we  share  in,  who  appear 
as  his  counsel.  But  when  1  say  so,  I  would 
not  be  understood  as  meaning  to  insinuate  any 
reflexion  upon  the  conduct  of  the  honourable 
gentleman  whoprosecules  for  his  majeitty  :  he 
does  the  duty  or  his  oflioe,  tlie  duty  which  he 
owes  to  his  king  and  country ;  and  gave  an 
early  proof  in  this  matter  of  that  candotir  for 
which  he  b  remsrkable  on  all  occasions,  by 
turning  a  general  indictment  into  a  special  and 
circumstantiate  charge.  But,  to  use  his  own 
words,  when  hindered  from  doin^  what  his 
humane  inclination  eonally  led  him  to,  bis 
lordship  is  here  but  half  a  pursuer:  there  are 
others  ooncemed  in  carrying  on  this  pfoaecu- 
tion ;  and  1  am  afraid  their  iust  resentment  of 
a  murder,  which  they  had  all  the  reason  in  the 
world  to  be  zealous  in  searching  out  the  com- 
mitters of,  has  made  them  unguarded  to  mea- 
sures which  1  should  be  sorry  to  see  retaliate ; 
and  pushed  them  beyond  the  bounds  of  what  1 
would  call  humanity,  perhaps  think  justice; 
and  yet,  while  1  cannot  approve  of  their  con- 
duct, 1  am  loth,  if  I  could  avoid  it,  to  be  severe 
against  it,  not  knowing,  whatever  I  now  think, 
how  far  rage  might  have  got  the  ascendant  of 
reason  with  myself,  if  in  their  place.  One  thing 
is  obvious,  that  though  it  is  true,  that  the  justice 
of  our  law  agrees  with  the  common  law  of  rea- 
aoo,  in  presuming  every  man  innocent  till  he  is 
proved  guilty,  yet  we  have  rcaiion  to  fear  we 
come  li^e  oppressed  with  prejudice,  to  create 
and  propagate  which,  against  this  unfortunate 
pannel,  no  pains,  no  expence  has  been  spared, 
with  manifest  intent  to  prejudge  him  in  his 
trial ;  and  in  this  have  some  people  been  wise 
in  their  generation ;  well  knowing,  that  as  pre- 
sumed innocence  is  a  great  advantage  in  a  trial, 
so  believed  gtiilt  is  no  small  step  to  canviction, 
and  otien  anticipates  the  just  foundations  of  it, 
which  can  arise  only  in  proof.  When  I  see, 
and  am  sorry  for  this,  my  kirds,  in  one  view, 
yet  do  1  most  r^oice  at  it  in  another,  as  it 
abews  the  weakiiess  of  the  cause  that  has 
Beaded  anch  artificial  feet  to  support  it,  even 
io  the  bwioningt  and  which  being  removed,  aa 
I  hope  my  toon  will  boi  Um  inpcntnicture' 


Trial  of  Jama  Stewart , 


[28 

boilt  upon  the  false  basis  will  also  fail.  There 
are  other  things  too,  which  the  law  of  the  laml 
would  intitle  os  to  eomphun  of,  and  which  a 
few  years  oaore  experience  might  make  it  bet^ 
ter  become  me  to  exdaiui  against:  a  ckwe 
confinement  of  the  pannel,  contrary  to  the  aa* 
cred  charter  of  Uberty,  which  this  nation  boasts 
of;  abd  which  illegal  proceeding  waa  only  re* 
luoved  of  late  by  the  interposition  of  this  Court ; 
imprisonment  of  wimesses  to  be  adduced  against 
him,  where  none  had  access  to  them  but  the 
private  prosecutors,  or  their  agents,  removed  at 
a  distance  from  the  check  of  my  Lord  Advo« 
cate's  superintendance,  whose  oflaice,  though  il 
intitles  hrai  to  investigate  the  proof  of  public 
offences,  yet  renders  a  privilege,  dangerous  to 
be  indulged  to  every  injured  party,  sale  in  hm 
hands.  The  pannel  has  had  but  short  wamhig 
to  prepare  for  his  trial,  tliough  he  was  at  great 
distance  from  the  capital,  from  which  only  he 
could  have  counsel  and  assistance:  and  it  is  but 
ftry  lately  since  his  counsel  had  access  to  see 
himself;  not  for  some  time  after  we  were  in 
this  place.  These  things  1  only  mention,  aa 
my  brother  has  already  fully  opened  them; 
and  I  mention  them,  my  lords,  as  what  may 
have  aome  weight  with  the  jury,  who  are  to  try 
the  pannel,  (and  whom  1  now  consider  myself 
as  addressing)  to  remove  the  prejudices  that  are 
so  naturally,  thoui^h  insensibly,  imbibed  with- 
out doors,  and  which  especially  arise  in  the 
mind  from  the  unavoidable,  though  inconve- 
nient situation,  in  which  a  suppowd  criminal 
must  appear,  even  when  as  vet  the  law  pre- 
sumes him  not  guilty,  loaded  with  irons,  ami 
surrounded  %vJth  guards. 

My  lords,  1  do  not  mention,  as  a  disad- 
vantage to  the  pannel,  the  place  oif  his  trial.  I 
think  it  can  be  none:  there  are  reasons  why 
this  place  may  be  more  proper  for  the  trial  than 
any  other,  whether  the  pannel  be  guilty  or  in- 
nocent; that  be  may  be  either  acquh  or  con- 
demned, and  justice  may  take  place  where  the 
crime  was  committed.  And  one  advantage  the 
pannel  most  surely  profits  of  by  the  trial  being 
here,  viz.  the  presence  of  the  prince  who  pre- 
sides in  it,  and  who,*in  a  special  manner,  is  tlia 
father  of  bis  own  country,  as  he  justly  ai)|iear8 
to  be  of  this  part  of  the  kingdom.  This  of 
itself  is  more  than  sufficient  to  balance  a  dis- 
advantage, were  it  possible  to  suppose  any 
could  arise  from  the  opportunity  that  affords  it. 
At  the  same  time,  I  would,  with  great  defer- 
ence, observe  (and  I  hope  1  may  do  it  without 
giving  offence,  which  1  am  sure  I  do  not  mean 
to  do),  that  there  may  be  something  in  this, 
which  calls  upon  tlie  jury  to  be  cautious ;  and 
I  hope  an  attention  to  it  will  have  the  effect  to 
make  them  rather  lean  to  the  favourable  side, 
than  be  disposed  to  make  any  stretch  against 
tlie  pannel.  It  is  the  privilege  of  the  subjects 
of  this  country  to  be  tried  by  one  another :  yet, 
when  we  have  thia  advantage,  and  it  is  aa 
inestimable  one,  still  it  is  to  be  tried  by  men  of 
like  passkms,  i.  e.  like  infirmities  with  our- 
selves ;  and  ail  mao  are  more  or  less  siiscep- 
title  of  pr^udtoe.   I  boye^  hQwercri  I  amf 


59)         ^^^^^       >r  Murder, 

mMj  tmci  to  lUe  tMm^ifir  of  such  ft  jury  as  witt 
bpfrntnpan  ttie  }»Aiitief''s  trtu),  that  they  yvjU, 
if  utj  ioeh  tberc  are,  lay  aside  all  regard  lo 
cMmtry  rdtio'  tuns,  divest  them* 

lilf«i  9f  tU   ;  I  sit  iUmn  to  the 

trial  «Mi»ai'  luuti  i<i  y\etil  only  to 

IImi  IbfBt  vf  Ir  Mucr  rather  to  s^e  in  no* 

hy  *  ...,.,^-,1.  si,  than  gnttl,  un**i!ihed- 
ill OBodrmticd,  uml  ittctiiti-d  to  gife  the 
Wf«vr«iir  nn  ihe  (Viifniiraiite  shle,  Unless  the 
Plvifili'i  aranJ  convincing. 

jHrttli  m  I  ^    ri  and  pubtic,  and 

iht^ytt  ot*  the  wnViil  are  a  check  both  Uf>oQ 
j^igi  I  Ynd  jtiTT  ;  nnd  as  this  murder  has  been, 
laH  'lect  of  an  extended  specula* 

l»s.  '  t  t'^r  it :   (  hope,  be  the  issue 

•fiAy»L«iiL^  li  be  so  cnnductedf  as  to 

I  MUXktt  ^  nnc^rned  in  it ;  and,  I 

Itmi^  couhl    I  susj>ect  thai  the 
rountry,  or  the  court,  could  put  any 
mt**     ^      viho  Hould  ovtrlook  their 
iiVi  wbtch  I  dare  say  is 
M..3  I ' It. Ht lit  case,  I  would  put 
that,  it  I  hey  ha^e  no  regard  to 
V  aij.ul,!  ree^ard theinseivei ;  for, 
^iid,  Nob«Miv  is  happy 
i  ihe  paniiers  fate  to- 
►rrow,  aud  what  is  proof 
I  >;j|iuil  another  loo  gaffer 
thk.     £*«>ir  trill,  tlierefore,  thou/,'h  it  i»re- 
ifgily  alfala  optfy  those  trho  are  iin*5er  it,  la  in 
^^Kpivklsm  ^  those  who  do  try, 

■  iij  lonia,  liAvitij^  i^iil  m  much  in  general, 

{m4  1  Ikiolt  I  eouhC  !«ay  no  les«)  ii  should  be 
feiy  mvinac  aowto  state  what  has  occurred  to 
9f  m  ib«  ddeoce  of  the  pannel  against  tUia 


b«rof  njrou 


m 


l»rr#,  my  Iord<i|  we  have  a  most  bar- 
iiMlctil  •  shocking  murder,  charged 
tm  pe»ons  ;  hut  with  tbb  miterial 
the  two,  thai  the  one  is  by 
teiBifiirinuAi  charged  as  the  actual  ipurderer, 
hf  liMBdf ;  DO  mortal  along  with  him  at  the 
erf  it  ;  and  ihe  other  is  only  ai- 
ry tberelo,  as  having  been  in  a 
cjoosptracy  with  the  murderer:  and 
to  bi*  tried,  is  this  conspirator, 
l^  lanU,  I  do  not  diKtinf^tlj  see,  from  the 
It  as  laid  «{*aiii^!  Hreck,  what  proof 
Itotwtll  be  of  hi  'lA  actual  murderer. 

li^ttli  at  jirwit  ,  from  the  way  in 

•bi«^  Iba  alory  t«  toiti,  that  there  can  be  no 

Ct^  at  t«m«l  tio  direct*   no  stttij^lying  proof 
bttbftt  n     *  -  f  [  um  sure  of, 

Ii  impossible 
.  w»  11  coo8pfracy» 
•jns  accused   we're 
**'^  my  lord  ad- 
I   think,  very 
fl  liit  cliai^'c 

'   _.  the 

Hr  eoo«p«racy.     find  it  is  uputi  the 
riiliaatit  or  impftri  »>f  th»-rp  HrrrtuHtances, 
^lU  •»  ■itmi'  For  it 

li»  N  tmtf  Jog  ih& 


A.  D.  17-.2. 

relef  attcy  of  the  indtctmeot.  we  mean  to  call  in  ] 
fjiie^Lion  that  murder  ia  a  crime :  and,  for  m^  ^ 
own  part,  las  little coDlcst,  that,  asth«  law  noir] 
stands,  the  charfre  against  the  paiiuel  in  thol 
general  propoatU'iQ  of  the  libel  is  relevaat,  that  ] 
he  \s  g-uiky ,  actor,  art  and  part  of  the  murder  J 
of  Gleoure,  And  I  do  farlher  admit,  that,  if  the  ] 
pimiiFl  has  beeu  accessary  to,  or  il*e  former  of 
conlfiver  of  a  conspiracy  for  perpetrating  thig  J 
horrid  murder,  he  is  truly  na  much  art  aud  part  j 
thereof,  as  the  actual  murderer:  nay,  wer«J 
tliQt  the  case,  I  should  not  hesitate  to  pro«^j 
nounce  him,  if  (lossible,  a  greater  en  minal  ihaiij 
the  u]i9ci*eant  by  whnse  hauda  he  accoinpltf^hed  I 
the  wicked  assassination.  But  it  is  my  busi<l 
oess  now  to  endeavour  to  shew,  that  the  cir*^] 
cumstaiices  condescended  uoou  in  the  libel,  ontll 
on  which  I  must  sup()05e  the  proof  19  to  reit,4 
are  not  tantamount  to  the  general  charge ;  or^  J 
in  other  words»  that  the  premisses  of  the  indicl*i 
meot,  supposing  them  true,  do  not  infer  tbel 
conclusion,  much  less  will  they  support  it,  | 
when  they  appear  tu  that  light  which  J  hop*'] 
the  proot  will  pUce  them  in,  divested  of  ih«] 
romantic  dress  of  exajrgeratioD,  in  which  fancy^j 
has  dressed  them.  And  when  I  attempt  this,  f 
I  owo,  my  lords,  it  is  not  with  design  to  in-  I 
flueoce  your  lordships'  interlocutor ;  ihr^  ;is  f  1 
have  already  admitted  the  general  propositioti  ( 
of  ihe  hbel  to  he  a  relevant  charge,  I  suppos^ 
the  interlocutor  of  the  court  will  be  confined  toj 
that,  it  was  the  custom,  not  many  years  ago^i 
for  the  court  to  pronounce  special  interlocti*! 
tors  upan  such  indictments  as  the  one  now  un«^ 
der  consideration,  findinj:;'  what  factsor  circum*! 
stances,  Sf  proven,  would  infer  the  charge :4 
but  your  lortUhtps^  later,  aud,  1  think,  bette^ 
practice,  hos  been  to  evade  thai,  as  what,  if  ill 
imd  any  effi^ct  to  inflneuce  Ihe  judgment  of  the  J 
jury,  did  in  so  tur  deprive  the  pannel  of  hifl 
rightful  privilege  to  be  tried  by  the  jury,  aniT 
not  by  ihe  court ;  or  as,  what  ludeed  was  mor« 
likely  to  happen,  being  a  thing  that  had  no 
eJfect  at  all,  as  the  jury  woutd  judge  ove 
again  for  themselves,  what  the  court  bad  ineptlyj 
judged  of  for  them.  T  say,  therefore,  my  lordJ 
I  do  not  speak  so  much  ?or  your  lordships,  t 
for  the  jury  ;  willing,  90  far  as  1  can,  to  gutdt 
their  attention  to  where  I  apprehend  it  ough' 
chiefly  To  he  fixed,  in  the  proof  they  ar 
to  hear  ;  and  to  help  them,  if  V  can,  to  judgi 
on  what  part  of  it  they  ought  to  lay  srress  m 
forming  an  opinion  of  this  cause. 

There  is  only  one  thing  which  1  must  sub 
mil  to  your  lordships,  and  nhich  I  shall  bu 
mention,  as  my  brother,  who  opened  the  de^i 
fence,  has  alread\  offered  it,  and  your  lordship 
may  hear  more  "of  it  in  the  reply  to  my  Ion 
advocate;  and  thai  is,  the  prejudicial  <|ut8tio 
bow  for  the  pannci,  charged  with  an  accessio 
to  the  crime  of  another,  can  be  trieil  for  it,  till 
the  principal  is  Hrst  discussed.     Your  lordship 
well  know,  that  an  accessary  docs  of  iix  owq 
nature  follow  a  principal;  till,  then,  then.'  be  1 
l»rinripal,  theri' ran  be  no  accessar3%  and  lbi_ 
^inurupitl  bein^  removed,  the  acces^iary  is  also 
tak(;it  away  ^  atid  ibcre^r«,  till  the  ooe  it  con- 


3ij 


23  GEORGE  II. 


Trial  qfjamet  Stewart,  ■ 


[S2 


victed,  there  b  no  room  for  tryiDg;  the  okber; 
io  like  inaDner  as  the  principal  being  acquit, 
t]ie  accomplices  cannot  be  cunclemned.  That 
the  law  stood  formerly  so,  is  most  certain ;  as 
appears  from  many  authorities,  which  I  tor- 
bear  ciiiu((.  How  far  this  ie  altered  by  the 
act  of  parliament,  introduciod^  the  law  of  art 
and  part,  will  be  subject  to  the  judjj^raent  of  the 
court,  where  I  lea?e  it.  But  I  must  at  least 
inform  the  jury,  that,  however  the  law  stands 
in  this  matter,  it  is  undoubtedly  certain,  that 
they,  or  any  jury,  cannot  convict  an  accessary, 
but  upon  this  supposition,  that,  if  the  principal 
were  under  trial  before  them  they  would  con- 
vict himf  '*  Q.uando  proceditur  contra  aliquem 
tanquam  quod  prcestiterit  auxilium,  debet  con- 
stare  principalem  deliquisse."  And  the  ifenlle- 
men  of  the  jury  will  take  heed  to  this,  that  if 
they  shall  find  cause  to  convict  the  pannel  upon 
the  evidence  tliat  shall  be  brought  before  them, 
they  do,  in  the  most  express  manner,  declare 
their  opinion,  that  Breck,  and  no  other,  was 
the  murderer  of  Gleonre.  Nor  must  they 
hoM  suflScient  for  this  pnrpoie  the  presumptive 
couviction,  which  arises  from  his  flying  justice, 
and  being  fugitate  and  outlawed  by  the  sen- 
tence we  beard  tliis  day  pronounced.  The 
law  says  expressly.  That  no  fugitation  of  a 
princi|)al  is  to  be  held  for  a  conviction  against 
an  accessary  ;  and  indeed,  why  should  it?  for 
tlie  confesjiion  of  the  |friucipal,  were  he  now 
here,  would  not  be  evidence  against  the  pannel, 
anil  much  less  must  his  absence  or  run-away 
have  that  eftect  So  that  the  jun|f  must  here 
consider,  that,  before  they  can  convict  the  pan- 
nel, they  must  have  such  evidence  against 
Breck,  as  would  condemn  him,  were  he  on 
trial.  And  so,  leaving  Mr.  Breck  till  we  see 
what  proof  comes  out  against  him,  the  question 
is  at  present,  upon  what  is  the  charge  of  the 
pannel's  guilt  tbundtd ?  or,  ar^  the  circum- 
ataoces  alledged  iu  the  indictment  sufficient  to 
Aupport  the  accusation  of  art  and  part  against 
the  pannel  ? 

And  here,  my  lords,  I  do  n6t  propose  to  en- 
tertain your  k>rdships  with  a  nice  disquisition 
on  the  kw  of  art  and  part ;  &ufier  me  only,  in 
three  words,  to  ment'u)n  that,  so  far  as  1  can 
comprehend  by  the  law  of  2$cotlaud,  art  and 
]iart  is  inferred  from  circumstances  antecedent 
to,  concomitant  with,  or  subsequent  upon  the 
ftctual  Commission  of  a  criuic.  Now,  my  lords, 
when  1  look  to  the  indictment  before  me,  J  am 
able  only  to  perceive  two  facts  condct^ceiided  ' 
upon,  from  which  the  pannel's  accession  to  this  ' 
murder  is  to  be  inferred  ;  the  clothes  alleged  to 
be  furnished  by  the  pannel  to  Breck  before  the 
murder,  as  a  disguise  to  commit  it  in,  and  the 
ONNiey  sent  him  after  tlie  action,  to  enable  him 
to  go  oflf  tlie  country.  These,  1  say,  my  lords, 
are,  so  far  aa  it  appears  to  me,  the  only  two 
considerablo  circumstancea  to  infer  accession  : 
for  your  kirdahips  will  observe,  there  is  an  ab- 
aolate  blank  as  to  the  principal  neriod  in  which 
foak  oqght  to  appear,  the  actual  commiaaion  of 
tM  ertBie  |  al  kaat,  so  far  as  1  oan  gather. 
tk«»iB  Mi  OBO  oonooaitant  circumatance  al- 


leged against  the  pannel,  which  connects  with 
the  actual  murder.  And  as  for  the  circum- 
stance of  the  pannel's  sending  the  money  to  a 
certain  place,  where  as  would  appear  from  the 
indictment,  be  had  no  access  to  know  that 
Breck  was;  as  to,  that,  I  say,  and  some  ones 
of  lesser  moment,  which  I  likewise  take  notice 
of,  I  take  them  to  be  designeil  as  a  key  to  ex- 
plain into  a  connexion  with  the  murder,  the 
two  facts  already  mentioneil,  by  shewUig  a 
previous  knowledge  of  the  murder,  which  the 
tads  themselves  do  not  import,  and  yet  with- 
out which  they  have  no  weight.  Upon  these 
two  cardinal  facts,  then,  attempted  to  be  sup- 
ported by  the  other  lesser  circumstances,  in  my 
apprehension,  lies  the  burden  of  theprosecutora 
cliarge.  And  1  will  beg  leave  to  say  a  few 
worcb  to  each  of  them.   . 

But,  before  {larticulars,  give  me  leave,  my 
lords,  as  shortly  as  1  can,  to  make  an  observa- 
tion or  two  upon  the  nature  of  proof  io  general. 

And,  my  lordsi  1  think  it  is  a  common,  but  % 
well-founded  maxim,  derived  from  better  ao- 
thority  than  mine,  that,  in  proportion  to  tho 
greatness  of  a  crune,  ought  the  strength  of  the 
proofof  it  to  be.  The  higher  a  crime  is,  and 
the  deeper  it  draws  in  its  coosequeocee,  so 
much  the  clearer  and  stronger  ought  the  evi* 
dence  of  it  to  be  :  and  indeed  justly  ;  for,  I 
hope,  bad  as  men  are,  corrupted  as  humaa 
nature  is,  it  is  not  come  that  length,  that  vico 
is  natural  to  mankind.  1  rather  persuade  my- 
self, that  it  costs  some  pains,  by  rooted  habits, 
to  extinguish  the  sparks  of  reason,  which  are 
the  seeds  of  virtue.  Ilere  then,  my  kMrds,  is  a 
crime  of  so  enormous  a  size,  that  it  ia  almost 
too  big  to  believe ;  murder,  deliberate  murder, 
assassiuatiou  in  face  of  the  sun,  in  defiance  of 
all  law  aiul  government.  What  proof  should 
tlien  be  expected  of  so  monstrous  an  offence  ? 
That  one  should  sit  down  deliberately  and 
coolly  to  form  a  conspiracy  of  bereaving  ano- 
ther of  his  life,  in  so  horrid  and  barbarous  a 
uianner  ;  what  degree  of  flagitiosity  must  nut 
be  proved  to  suppose  one  capable  ot  it  ?  Sure, 
tliough  many  circumstances  be  brought  to 
establish  a  presumption  of  guilt,  yet  to  believe 
it  is  no  easy  matter.  Must  it  then  depend  upoo 
guess*  work?  Is  it  to  be  tried  upon  questiona- 
ble evidence  ?  or,  is  a  jury  to  be  persuaded  into 
it  by  art  ?  No,  there  must  be  the  most  |»al|iable 
and  iucontestible  proof ;  aud,  unless  the  evi- 
dence is  full  and  plain,  no  credit,  1  n  ill  venture 
to  say,  can  be  given  to  so  black,  so  detestable, 
und  so  unnatural  a  charge.  It  would  almost 
require  to  see  the  blood  of  the  innocent  reeking 
on  the  luinds  of  the  guilty.  But  w hat  have  wo 
here?  Preauroptions  built  upon  presumptions; 
siutpicioos,  and  these  suspicions  supported 
by  others ;  suspicions  without  ]»roof,  nay  dia- 
provetl.  We  have  first  to  get  over  the  belly  of 
a  good  fair  oharacter,  which  this  pannel  oad 
the  happiness  to  posaeaa,  a  blameless,  moral 
lii'e  io  private.*  And,shoold  he  all  at  once  have 

*  There  is  a  tradition  that  here  the  Lord 
Jmtice  Genenl  intanuptcd  Mr.  Mackintoih, 


S3] 


Jor  Murder* 


4m\aSbeA  to  far  fimiii  the  paths  of  Tirtae  ?  Coold 
be  to  nddenly  shake  off  a  regard  to  all  that  is 
Mcred  f  I  should  hare  expeOed  to  have  heard 
arfed  against  this  pannel,  theabandooed  disso* 
lotMiess  af  his  tnanners,  the  barbarity  of  bis 
uMvCythat  his  life  was  one  continned  course  of 
widwdatss;  ib  short,  erery  part  of  his  charac- 
Isr  dsfuHd  10  narder ;  that  be  was  one  inared 
ta  the  pradioe  of  it,  and  distioguished  by  the 
■on  ooiMiMimated  guilt :  yet  not  one  of  these 
cataiusta— ea  so  nioch  as  alleged  in  all  this 
ipnravatad  eharge;  and  for  a  good  reason, 
fB.  That  the  eoiitrary  is  well  kopwn  to  be  true 
by  (he  pmaeculars  themselves.  Next,  my  lords, 
wfaeo  we  eccfc  for  a  cause  of  such  a  malice  as 
ooold  pradoce  this  crime,  we  find  a  cause  that 
never  sufaaiBted ;  a  cause  noways  adequate  lo 
the  effect :  resentment ;  for  what  P  For  «e- 
oepliDg  as  office  which  somebody  most  have 
fp^  \  and  none  oould  have  made  a  more  favor- 
able vs«  sf,  for  the  friends  of  the  pannel,  than 
this  gcailensn  did :  (  for  which  reason  they  will 
he  pftwcd  to  have  been  in  good  friendship  long 
after  that ;)  resentment  for  tnniing  out  some 
tcnaals  f/om  an  estate  forfeit  to  the  crown  $ 
irreooeersMy  lost  to  the  family  with  which  the 
paneel  waa  eooilecteii.  This  is  the  foundation ; 
and  what  is  the  soperstractHre  ?  Of  a  piece  with 
k  truly.  Why,  the  murderer  had  on  a  coat  of 
the  psanel'a  when  he  committed  the  brutal  ac- 
IM,  and  got  money  from  him  atler  it.  Here 
b  the  proof;  a  circumstantiate  proof  it  is  called. 

Me  ferda,  I  have  no  objectkin  U>  circum- 
•teniiate  proof;  what  the  law  calls  argumenta- 
tive  evideiioe.  I  do  adroit,  that  it  is  a  legal  and 
■roper  sort  of  eridence,  as  much  as  direct  proof 
by  wiiacases.  Erery  thing  is  legal  evidence, 
that  is  iuefa  real  and  certain  proof  as  ought,  in 
meral  justice  and  equity,  to  be  receive<l :  for 
what  ia  evidence  of  a  fact,  hut  such  testimony 
■a  the  nature  of  the  case  requires  to  induce  a 
■eial  eartainty  of  the  thing  testified  P  And  an 
■iguiMat  ia  nothing  else  than  what  gives  faith 
trcradit  to  a  thing  in  itself  doubtful,  which 
psrfiKlly  agrees  whh  the  law  definition  of  proof 
sr  provmif,  which  is  fidem  facer e,  1  will  ad- 
mit further,  that  circumstantiate  evidence, 
wheo  clear,  is  perhaps  the  most  satisfying  and 
eaevioeieg  proof  of  any.  Circumstances  are 
iiitiiibli  proofs :  they  will  not  bend  to  the  in- 
rihsiion  w  parties:  wimesses  may  be  mis- 
lAea,  may  be  eorropted :  things  can  be  nei- 
te;  and  therefore,  so  far  as  they  go,  deserve 
sibMled,  oareserved  faith. 

Batthea,  my  lords,  the  circumstances  must 
kedsv,  certain,  and  well  connected  :  no  blank 
ii  the  ebaiDy  else  all  goes  for  nothing;   the 

J  with  moeh  vehemence,  that  a  fair  cha- 
r  aod  blameleM  moral  life  could  not  belong 
■v  nso  who  had  been  in  rebellion  against 
bag;  aed  that  Mr.  Mackintosh  in  the 
rmth  ef  the  osoment  represented  to  his  grace, 
Ail  it  HMght  he  very  difficult  to  say  how  many 
if  the  Afgyiea  had  been  in  rebellion  against 
iksir  kuM.  8ee  •  sole  to  the  deposition  of 
1>smM  C^MpheU  ef  Akdi,iothe  Proof. 
VOL.  XIX. 


A.  D.  1752.  [S4 

arguments  most  be  perspicuous,  nervous,  and 
conclusive.  The  same  law  that  has  said, 
**  crimina  posse  probari,  vel  testibus,  vel  docu- 
mentis  ant  indiciis,''  as  it  requires  "  idonei 
testes,"  BO  does  it  "  documenta  apertlssima, 
indicia  indnbitata,  luce  meridian^ -clariora.'* 
We  must  therefore,  my  lords,  carefully  distin* 
guirth  between  circumstsntiate  or  argumen- 
tative evidence,,  and  bare  presumption  or^ven 
probability ;  much  more  suspicion  and  con- 
jecture, with  all  which  it  has  a  near  affinity^ 
and  is  therefbre  apt  to  be  confounded  with 
them  ;  for  they  all  depend  on  facts  or  circum- 
stances. But,  says  our  i^eat  criminal  lawyer, 
sir  Greorge  Mackenzie,  crimes  cannot  be  proved 
by  presumptions ;  for  presumptions  are  only 
munded  on  verisimilitude,  and  what  may  be, 
may  not  be;  whereas  all  probations,  especially 
in  criminals,  should  be  infallible  and  certain  ; 
**  conclusio  semper  debet  sequi  debiliorem  par«. 
tem :"  If  otherways,  says  he,  jud^  (or  juries 
now)  would  be  arbitrary.  Probabilities,  again, 
says  a  good  reasoner,  twenty  of  them  alloweil 
to  be  such,  arc  not  equal  to  one  matter  of  fact 
well  attested  :  they  may  strengthen  the  fact, 
but  cannot  supply  it:  they  cannot  be  evidence 
themselves,  because  one  probability  may  be 
set  against  another,  and  so  mutnaJIy  destroy 
the  force  of  each  other:  and  as  for  suspi- 
cions and  conjectures)  who  will  pretend  a  right 
to  indulge  them,  where  life  and  fortune  are 
concern^  P 

Guarding  then,  my  lords,  against  these  things 
which  are  ready  to  mislead^  let  us,  and  let  the 
jurv,  my  lords,  examine  cautiously  and  can- 
<lidly  the  circumstances  I  mentioned,  on  which 
the  burden  of  the  indictment  lies  :  let  us  see 
if  they  approach  a  proof;  if  they  do  not  more 
|Mirticipate  of  the  nature  hardly  of  presump- 
tion, not  at  all  probability,  rather  simpicion  and 
conjecture ;  or  if  they  amount  to  a  solid  and 
suMtantiai  circumstantiate  or  argumentative 
evidence. 

My  lords,  I  mentioned  first  the  clothes : 
and  [lermit  me,  my  lords,  once  more  in  ge- 
neral to  obsoi've  upon  this  circumstance,  as 
itell  as  the  otiiers  that  follow,  that  1  do,  with 
great  submission,  apprehend  they  derive  their 
whole  weigiit  from  a  belief  of  the  pannePs 
guilt,  which  it  is  indeed  very  natural  to  enter- 
tain  from  such  circumstances  as  he  now  ap- 
pears in.  The  indictment  sets  out  with  laying 
down  this  crime  in  the  most  ugly  colours,  as 
indeed  it  jnstly  does  deserve  ;  and  then  sub- 
sumes, that  the  pannel  is  guilty  of  it ;  and  I 
venture  to  say,  that,  take  away  the  influence 
which  too  easy  a  credit  to  this  first  position 
gives  to  what  comes  a(\er,  all  the  circum- 
stances brought  to  support  the  charge  will  in 
a  great  measure  lose  their  force ;  so  that  the 
assertion  of  the  charge  is  the  very  thing  which 
supports  the  circnmstances  adduced  to  prove 
it,  than  which  nothing  can  be  a  more  false  cir- 
cle of  probation.  Prejudice,  my  lords,  is  liku 
a  jaundiced  eye,  or  a  magnifying  glass.  To 
the  first,  every  thing  ii  looks  at  appears  yel- 
low ;    and  the  last  to  appearance,  increases 

D 


85] 


15  GBORGE  n. 


Trial  of  James  Steooatif 


[30 


the  bulk  of  etery  object  to  which  it  is  applied. 
Jtut  so  prejudice  discolours  every  circum- 
stance,  turns  the  most  trivial  into  somethin{jf 
of  importance,  and  makes  what  is  in  itself 
indifferent,  a  proof  of  ^lilt.  Can  the  troth 
Qf  this  appear  more  vended  in  any,  tlian  it  is 
in  the  present  case? 

My  lords,  I  will  not  repeat  the  true  fact,  as 
your  lordshi^is  have  already  heard  it  opened, 
with  respect  to  the  clothes :  had  it  been  that 
Breck  had  really  received  them  from  the  pan- 
nel,  sure  that  of  itself  would  not  hare  proved 
the  pannePs  accession  to  a  murder  committed 
by  Breck  at  the  distance  of  so  many  days. 
But  has  it  any  weight  at  all,  this  circumstance, 
as  it  has  been  told  your  lordships,  and  as  it  will  be 
proved  to  have  in  fact  happened  ?  A  man  comes 
to  my  house,  and,  without  my  knowledge,  puts 
on,  and  goes  away  with  my  clothes;  and 
when  wearing  these,  a  murder  is  committed : 
roust  I  be  accessary  to  this  murder,  or,  must 
1  be  presumed  accessary  to  it  ?  Breck,  your 
lordships  hear,  was  in  iise  of  changing  his 
dress :  he  had  been  six  weeks  at  one  time  in 
Raonocb  with  these  very  clothes  ;  and  because 
be  has  them  upon  him  again  at  the  un- 
lucky period,  must  the  nannel  for  that  be 
guilty  with  him  P  My  lords,  we  have  heard  of 
Tillains  borrowing,  stealing  clothes,  assuming 
characters,  feigning  voices,  and  such  like 
things,  when  about  to  commit  crimes,  of  pur- 
pose to  deceive,  and  to  throw  the  suspicion  of 
guilt  off  from  themselves  upon  the  innocent. 
But  surely  these  are  dangerous  circumstances, 
and  would  need  to  be  supported  by  better  proof, 
before  the  lite  of  any  man  was  taken  away 
upon  them  ;  or  indeed  what  man  is  safe  ?  It 
will  not  avail  that  we  keep  ourselves  safe,  so 
long  as  it  is  in  the  power  of  others  thus  to 
brin;>f  us  into  danger.  Every  man  must  so  be 
at  tbe  mercy  of  others,  obd  those  of  the  vilest 
of  mankind.  The  libel  indeed  says,  the  pan- 
ucl  furnished  Dreck  with  his  clothes  ;  but  how. 
is  that  to  be  proved  ?  Did  the  pannel  give  him 
them  ?  No,  my  lords,  we  shall  prove  he  took 
them,  and  went  with  them  from  the  pannePs 
house,  when  he  was  not.there,  when  he  knew 
nothing  of  it:  But  though  he  had  known,  as 
he  did  on  former  occasions,  or  though  he 
bad  with  his  own  hands  given  them  to  Breck, 
would  it  have  been  proof  against  the  pannel  ? 
I  cannot  imagine  it.  I  might  admit,  that  had 
Breck  never  before  changed  his  dress  at  the 
pannePs  house,  hsd  this  been  the  first  time,  it 
mi<>^ht  have  been  a  circumsunce,  and  but  a 
Wi'ak  one  too,  from  which  to  presume  guilt 
a^^ainst  the  puuuel :  but  when  he  had  been  in 
use  of  doing  it,  does  there  from  thence  arise  so 
much  as  a  distant  suspicion  against  the  pan- 
nel ?  Whatever  effect  it  may  have  against  Breck 
to  presume  that  wicked  design,  which  I  shall 
at  present  take  for  grunted  be  soon  thereafter 
executed,  (lo  |iresuiue  it,  I  say,  against  him) 
that  he  i:hunged,  at  so  critical  a  conjuncture, 
bis  dress ;  yet  sure  it  cau  haie  no  influence 
against  the  punnci,  m  ho,  till  it  is  better  proved, 
cannot  be  supposed  privy  to  to  horrid  ao  under- 
2 


taking  in  Breck.  And  this,  my  lords,  puts  me 
in  mind  to  make  a  distinction,  which  I  should 
have  made  sooner,  that  is,  betwixt  Breck  and 
the  pannel.  And  I  must  call  upon  the  jury 
carefully  to  separate  the  parts  of  this  indkst- 
ment,  which  refer  to  the  one  and  to  the  other  ; 
for,  when  they  are  confounded  together,  one,  in 
reading  or  hearing  it,  is  extremely  apt  equally 
to  apply  the  effect  of  all  the  circumstances  to 
both.  The  indictment  has  so  chequered  them 
through  other,  that  it  costs  some  pains  to  dis- 
tinguish them,  and  lay  to  the  door  of  Breck^ 
and  of  the  pannel,  what  separately  applies  to 
each,  and  seems  to  support  the  different  chaig;es 
against  them.  To  shew  the  necessity  of  this, 
i  will  but  mention  one  paragraph  of  the  libel, 
where  this  c<)nfuKion  manifestly  prevails.  It 
is  there  first  said,  that  Breck  havmg  come  to 
the  pannel's  house  on  the  Monday  evening, 
James  Stewart  the  fmnnel  was  informed  by 
him,  (Breck)  or  by  his  son  Charles  Stewart, 
or  by  Fasnacloicb's  daughter,  of  G tenure's  mo- 
tions and  resolutions.  And  then  it  immediately 
follows,  *<  And  there,  afW  receiving  such  ad- 
vice, in  the  evening  of  the  same  day,  the  odd 
Allan  Breck  Stewart  laid  aside  his  own  clothes, 
&c."  So  your  lordships  see,  that  first  Breck 
is  said  to  inform  the  pannel,  and  then  Brock's 
receiving  such  advice  or  information  from  the 
panne],  (just  inverting  the  thing)  is  laid  down 
as  the  spring  of  Breck's  actions,  with  a  design, 
as  is  plain  to  extract  guilt  against  the  pauuel, 
from  nis  giving  intbrmatk>n  to  Breck,  which 
produced  his  action,  when  it  was  truly  Breck 
himself  that  informed  the  pannel,  as  the  in- 
dictment first  asserts.  This,  my  lords,  may 
be  an  inaccuracy  in  wording  the  indictment ; 
but  it  is  not  for  that  1  observe  it:  I  mention 
it,  that  the  jury  may  see  how  carefully  they^ 
must  consider  and  weigh  every  branch  of  this 
complex  charge,  as  being  heedless  to  one 
branch  or  circumstance  mav  have  bad  effect. 
And  surely  it  is  evident  in  this  particuhir,  that 
the  weight  of  the  circumstance,  as  laid  agaiatt 
the  pannel,  wholly  flies  off  by  a  just  attentkm 
to  the  erroneous  connection  of  the  fact  as  nar^ 
rated. 

There  is  another  circumstance  of  the  indict- 
ment, which,  though  it  does  not  fall  so  directly 
within  my  present  view,  1  cannot  omit  taking 
notice  of  it,  as  it  comes  across  my  thought ; 
it  is  as  to  the  iiannePs  behaviour,  when  the 
murder  of  Glenure  was  first  notified  to  him  by 
Glcnure's  servant.  It  is  said  the  pannel  ap- 
peared noways  surprised  or  concerned.  Alas ! 
my  lords,  what  such  proof  of  guilt  is  this?  We 
have  seen  doubtful  actions  by  the  help  of  in- 
nuendoes construed  criminally  ;  but  to  give 
that  in  evidence  which  was  neither  said  nor 
done,  to  construe  silence  into  ^ilt,  is  entirelv 
new  ;  and  the  author  of  this  invention  will 
deserve  the  ^lory  of  the  discovery :  this  is, 
indeed,  to  conjure  one  into  a  crime.  My  lords, 
I  could  venture  to  invert  the  proposition,  if  the 
gentlemen  please,  and  maintau,  that  a  cuotrary 
behaviour,  to  any  remarkable  degree,  would 
have  becu  more  suspidouii  *  Tccmor  eti  aig. 


m 


Jbr  Murder, 


kit 


'  wm  ctt^ii/  or  in  the  words  of  the  f»raverb  of 
flsrowii  wmntry ,  Tlie  g:rcatcst  thief  cries  first,  fy, 
Bi0,  my  ftM^fti  ttie  fiict  is  dlflerent  from  what 
ilbllMlIlbeK  It  villi  be  nroved  to  yoar  lord- 
MptMiillM  jury,  that  the  pannel,  upon  re- 
cdvUgHiit  fiiiroe  of^  1  must  call  it  inelancboly 
ttcnn^  fXfirMeil  to  ihe  me^sengr«r  a  decent 
mnctrmwmA  rrp^,  thnngb  ItUle  did  he  think 
ai  tlm  lime,  ihat  his  hphaviotir  then  would  now 
be  iiUM^bt  toio  jiidgtnetit  agiin^t  him« 
Of  th«  Mtoekttid  with  this^  niy  lords,  is  an- 
ciieiraixUnoe,  which  I  reiiieraber  in  the 
I  (for  1  cannot  go  through  them  all  ;) 
UH  «  letter  of  the  piinnels  to  otie 
i^btwnrl*  reeling  to  the  price  of  intlk> 
*  eottlm,  my  lotdn^  it  is  to  me  myste- 
I  jflL  ivlHa  import  this  tetter  is  of  as  a  proof 
iQtfl  fM  patinel.  If  it  is,  that  the  subject  of 
led  to  he  ttctitioiiS)  that  we  shall  be 
Mt  lo  ft«yve  rtal.  But  what  connexion  has  it 
wilki  Uw  daai^  ?  I  own  I  cannot  fiud  it  out. 
Il  wmdit  iiiiifario  me  that  this  letter  must  suf- 
fer Mrlom,  4iid  not  a  tittle  of  it,  befbre  any 
tlsii^^so  krif|isee2ed  out  of  it  agaiim  the  |ran- 
wtL  ll^li  Qieiii  mind  of  a  saying^  of  a  gfreat 
yoi  fcry  wkleed  polilict;mt  cardmtit  Maeaniie, 
wli«  iesiid  t«  tiave  housted,  that,  if  he  had  but 
ImtloeB  of  e  tnmn^t  writing',  with  a  few  circum- 
ttvcn  alleAeil  by  witnesses,  he  would  cut  off 
■•y  aieii*!  Iimd  whtin  he  pleased.  Thank 
Gail,  we  ^Pe^tlie  in  a  climate  different  from  the 
pootiff  ruled  iu  :  at>d  1  hope  we  do  not 
i  in  Mood  so  much  aa  to  adopt  bia  cruel 

Tbioe  tllifigt,  roy  lordn,  I  hnre  ibrowo  out 
If  file  woy  ;    but  aa  to  what  I  wsm  itpon,  the 
^^^■rtUoeie  of  the  ctotheii,  t  ahnll  onl^  add, 
I  aa  il  la  in  truth,  it  aptieara  of  no  weight  at 
\  mo4  bad  tt  lieen  nn  m  the  indictment,   t 
thought  it  a  circumstance  gretitly 
I  alender  to  build  any  ibiog  upon, 
roftly  ttt<-n  rfiTtaitis  tlie  other  circum- 
iq'  -^  (licb  ia  posterior  to  the 

iilrcndy  hait  nccn^iion  to 
e,  I  «a  oiii  aiicover  a  concomitant  circuru- 
_  td,  utleix  ibe  arms  be  pointed  at 
fee  tkia  fiiripose  ^  a«  I  ob<ierte,  there  are  twn 
fiOB  meiitiQ^ed  tti  the  list  nf  evidence^  im  found 
HMukd  if^jvr  i»u  fknriners  hotise,  and  which 
foaibly  U>«'  ^   will  attempt  to  pruve 

halianrbern  ■  icb  the  indictment  says 

Ifitfc  hmd  kruiight,  m  rriusrd  to  be  brought  to 
iboyUce  of  the  mnTr|*»r,  Were  any  tbinj^^  of 
Mli  lie  pf (  '  ill  tairly  adfUU  it  would 

|p  tiir9if*f  f  re,  as  it  is  one  of  these 

^'  iVf  points  out  ;•  Opem 

•'•  patralo  non  inlerfucril, 

*famitrc-nta  >  i     Hfuniodaverit, 

*lrti>icii)o»  Liet*     Out  I 

•PtwS  tlnni:: Ilk'  this 


i.»  ,  ihUi.     1  iUnik  it 

h  fPftitiBolile  ih'  r  wiiuld  carry  bii 

■■■  w^b  h»m.  ,i  I  s  iirm  to  liii*  wicked 

fVfaae,     Ai  i^   found  conoe;ileiJ 

Wmr  the  pocirj  are  instructed  to 

iay,  tbcj  iwtrt  ui  thu  p«uoora  boium  »t  the 


H^  A.  0.  1752. 

lime  of  the  murder,  and  were  hid  ofler  it  for 
fL-nr  of  an  apprehended  search  for  aruis^by  tho 
iiiilifary  that  was  eicpected  to  come  into  the 
country. 

This  therefore  I  leave  upon  the  proof,  and* 
idialt  now,  in  a  word  or  two,  take  notice  of  the  ^ 
money  sent  hy  the  pannel  to  Breck  after  the 
njurder    And  here,  my  lords,  I  must  be  al- 
lowed to  observe,  in  the  first  place,  what  air  ^ 
George  Mackenzie's  doctrine  upou  this  [loint 
is.     Ilis  words  are,  sect.  7,  (tit.  Art  and  Part]  ' 
**  assistance  given  after  the  crime  is  committed, 
scarce  deserves  the  name  of  assistance,^'    And' 
cites  an  authority  for  this  opinion.     1  wilt  ad- 
mit, my  lords,  that,  if  this  pannel  did,  knowin|f 
Dreck  to  he  the  murderer  of  Gtenure,  admi- 
nister help  to  his  escape,  hy  furnishing  him 
with  money,  he  did  a  very  wrong  things  ;  per- 
haps was  i^uilty  of  an  offence,  which  the  law 
would  punisVi. — But  it  is  an  offence  quite  dif- 
ferent from  that  of  accession  to  the  murder.     Il  i 
is  a  species  of  crime  by  itself;  and,  as  my  ]ord.| 
advocate  has  not  laid  his  proseeutioH  for  that, 
we  have  nothins^to  do  with  it.    At  the  same^ 
time,  my  lords,  however  wrong- such  a  conduct*' 
(nio^ht  have  been,  yet  it  could  admit  of  an  ex* 
case.     Your  lordships  have  heard  this  Breck 
was   the  pa  Duel's  relation.     He   had  been  hif 
pupil,  broui^ht  up  in  his  family  till   he  went 
into  the  king'a  service  as  a  soldier;    and  we  all 
know,  my  lords,  the  strengjth  of  compassion  on  ' 
such    occasions,  especially  to  our  friends,  it  ^ 
would  perhaps  be  hard  to'punish  tor  it,    Th«' 
worttile^sness  of  our  relatione  does  not  at  once 
dissolve  the  ties  of  nature  ;  none  of  us  can  be 
sure,  but  we  may  have  a  wicked  sou  or  a  hro* , 
ther;    and,  in  a  case  of  this  sort,  it  would  ho' 
natural  to  wish  to  help  him  out  of  tl^e  way; 
perhaps   it  would  be  wrongs,  hut  such  is  ilie 
known  force  of  natural  ties,  and  it,  at  least,  les« 
sens  the  crime.     However,  here,  my  lords,  the'j 
case  does  not  apply  ;  for  we  absoliit*ly  deny, 
tlitit  the  pannel  knew  any  ibin^  of  Breck*i 
l^uilt  ;    and    »uch    knowled^'e   can   never    be*] 
presumed;    he    knew   the  situation    he   wai'j 
lu    as    a    deserter,    and    the    hazard     of   it,  ' 
wlien    tho    mihtury   were    cominsr    into   the 
country  to  innke  o  search  :  and  to  be  sure,  bad' j 
tie  been  calcheit  by   the  military,  tliey  would 
have  saved  your  loidahips  I  tie  trouble  of  tryio^ 
him,  aupp4ising'  him  to  l»e  i^uilty  :  a  court-mar- 
tial would   have  made  short  work  with  him, 
unless  it  hud  tieen  (as  likely  it  mi^bt)  ibov'i^ht 
more  for  the  end  of  publi'c  justice,  to  mo  1*0  • 
him  suffer  for  so  fla^ant  an  offence  as  this, 
than  to  hang  him  as  a  deserter.     It  was  (br 
this  reason,  my  lords,  and  not  tVom  any  know« 
ledge  of  his  guilt,  that  the  pannel,  upon  Breck*s 
message  to  that  puqiose,  as  your   InrdHliips  I 
have  heard,  sent  him  the  money  to  enable  bintl" 
to  get  otr  the  country,  and  go  where  bin  bust* 
uess  called  him  ;  bis  business,  I  say,  roy  lords  ; 
but  at  the  same  time  1  call  it  his  il)ei)fa{,  hii  [ 
unnatural  business,  us  an  enemy  to   his  coun-  < 
try,  and  a  traitor  to  his  king»     And  as  to  the 
circumstance  which   I  formerly    noticed,  as 
teodiiig  to  t>oiut  uuiihe  ptun  el  *§  previous  kuow- 


3t)] 


25  GEOHGE  II. 


Trial  qfJwMt  Slemart, 


[40 


Icrft^e  of  Breck'g  motions,  by  his  knowing 
'  where  to  seud  the  money,  4hougli  be  bad  no 
accesd  lo  see  Brcck  after  the  munler ;  as  to  this, 
]  say,  my  lords,  your  lordships  see  no  stress 
can  be  laid  upon  it,  when  you  have  heard  that 
it  was  by  a  me«Mgefrom  Breck  that  the  pannel 
learned  bis  motions :  so  that  still  s<imeibing  is 
desiderate  here,  whereon  4o  fix  that  circaro- 
stance,  upon  which  alone  depends  the  paii- 
nel's  accession,  to  wit,  his  foreknowledge  of 
the  murder. 

My  lords,  1  liare  finished  what  occurred  to 
me  on  the  circumstances  of  the  indiotnoent ;  and 
I  am  unwilling  to  weary  your  lordships. 

I  forbear  entering  upon  the  booman's  con- 
versation with  Breck ;  that  is  but  one  roan's 
story  of  what  another  said.  It  is  but  hearing  a 
hearsay,  or  rather  less ;  and  I  know  no  law, 
no  rule,  it  rather  seems  contrary  to  all  rule  of 
<;vidence,  that  one  should  suffer  for  what  ano- 
ther said  of  him ;  and  that  the  very  guilty 
person,  as  is  here  supposed.  If  he  did  say  so, 
It  might  .be  to  throw  the  suspicion  off  himself 
with  the  better  grace :  but,  be  it  as  it  will,  it 
can  be  no  evidence  against  the  pannel. 

There  is  but  one  oilier  thing  in  the  indict- 
ment, which  we  have  to  finish  this  doubtful 
evidence,  if  it  can  be  called  so  much,  and  that 
is,  the  threatenings ;  but,  as  they  are  libelled  in 
general,  I  cannot  argue  upon  Uiem ;  nor  has 
the  pannel  any  opportunity  to  disprove  them : 
they  must. therefore  be  left,  till  the  evidence  is 
concluded. 

My  lords,  I  have  said  what  I  could,  from 
such  helps  as  were  in  my  way,  upon  the  nature 
and  import  of  this  sort  of  evidence  which  is 
now  betbre  us.  1  shall  only  say  further  on  it, 
that  this  sort  oi'  evidence,  when  imprudently 
handled,  may  be  resembled  to  the  monstrous 
machine  fiir  making  bavock  of  enemies  which, 
when  invented  by  a  subject,  was  wisely 
smothered  in  the  birth  by  the  governor,  lest, 
however  convenient  it  might  be  when  used  for 
him,  he  mi»ht  come  one  day  to  regret  the  in- 
vention, when  he  found  it  applied  against  him- 
self. And  as  to  this  particular  case,  I  take  it, 
that  ev^ry  individual  circumstance,  as  laid  in 
the  indictment,  so  far  as  we  know  of  it,  will  be 
unsupported  with  evidence ;  that  all  pnt  toge- 
ther do  not  amount  to  the  char^.  I  think 
there  are  no  grounds  tor  any  private  opinion 
of  the  pannel's  guilt,  but  wha^t  arise  from  pre- 
judice only.  I  think  prejudice,  or  even  opi- 
nion, has  nothing  to  do  with  judicial  proceed  • 
itigs.  It  is  the  judgment  that  must  acquit  or 
condemn  ;  and  that  must,  can  only  be  founded 
OQ  eviflence,  on  proof,  not  on  suspicion  or  pre- 
sumption. 

I  shall  now  take  the  liberty  to  read  to  your 
lonleiliips,  and  the  jury,  the  words  of  a  great 
criiniual  writer  on  the  common  law,  when 
treating  on  the  subject  of  argumentative  evi- 
dence. Math,  de  Crim.  ad  Tit.  15,  Cap.  6. 
He  is  speaking  of  arguments,  and  taya,  "  Ar- 
gumentum  est  neceasariam,  cujua  conseqaen- 
tia  est  necessaria,  faluti  ooivisse  eam'qna 
pcperii;  contingeoiy  cojut  conacqueDtia  «l 


probabilifl,  veluti  csedem  fecisse  qoi  cruentalus 
esf  Then  be  adds,  "  Contingeutia  argu- 
menta,  quamvis  tinguk  fid«m  uon  faciaat, 
plura  tamen  ooi\juucta  crimen  manitestare  pos* 
sunt.  Hsec  ap|f^lantur  pnesumptiones ;  pne- 
sumptio  eoira  nihil  aliud  eat,  quam  argumen- 
tum  verisimile  ooramuni  scnsu  peroeptum,  ex 
eoquod  plerumque  fit,  aut  fien  intelligitur :" 
And  be  gives  the  following  example  of  an  surgo* 
mentative  evidence  which  may  oondema, 
which  I  beg  the  jury  wjll  attend  to,  "  Ocoisus 
est  kaleodii  Mcevins ;  Titiiia  perenapti  inimi- 
cus  fuit  eidem  seepiua  nen  solum  interminatus, 
sed  et  inaidiatua  est:  cum  deprebenderetor 
iisdem  kalendis  in  loco  ccsdis  cruentalus  cum 
gladio  oraento,  ad  meosuram  vulneris  fiuito, 
toto  vultii  expalhiit,  interrogatus,  nil  respondit, 
trepida  fugit.  Hie  singula  (says  our  author) 
quidem  ar^menta  infirmiora  sunt,  nniverta 
tamen  oedis  auctorem  Titium  evidenter  design 
nant."  And  I  most  heartily  aj);ree  with  tha 
doctrine,  and  shall  leave  it  to  the  jury  to  judge, 
how  far  the  proof  brought  against  the  pannel 
comes  up  tothisstandanl. 

1  shall  conclude  with  laying  before  the  jury 
'the  words  of  a  great  jud^  and  lawyer  of  our 
own  country,  on  an  occasion  somewhat  siniUar 
to  this.  It  is  part  of  my  lord  Cowper's  speech 
upon  the  bishop  of  Rochester's  trial,  where 
the  evidence  depended  on  ctrcunistanoes,  as  U 
does  here.  His  lordship  says,  ^*  The  wisdom 
and  goodness  of  our  Uw  appears  in  aotbiaif 
more  remarkably,  than  in  the  perspicuity,  cer- 
tainty,  and  clearness  of  the  evidence  it  requires 
to  fix  a  crime  upon  any  man,  whereby  his  life, 
his  liberty,  or  his  property,  can  be  concerned  : 
herein  we  glory  and  pride  ourselves,  simI  are 
justly  the  envy  of  all  our  neighbour  nations. 
Our  law,  in  such  cases,  requires  evidence  so 
clear  and  convincing,  that  every  by-stander, 
the  instant  he  hears  it,  must  be  fully  satisfied 
of  the  truth  (and  certainty)  of  it.  It  admits  of 
no  surmises,  innuendoes,  forced  consequences, 
or  harsh  constructions,*  nor  any  thing  else  to 
be  offered  as  evidence,  but  what  is  real  and 
substantial,  according  to  the  rules  of  natural 
justice  and  equity."f 

These  are  my  lord  Cowper's  words  as  we 
have  them  given  us.t  ("  It  is  very  true,  tlie 
judgment  of  the  House  of  Lords  went  against 
his  lordship's  opinion  in  that  question ;  but  I 
must  presume  that  the  judgment  of  thai 
august  assembly,  though  against  his  opinion, 

{iroceeded  upon  the  principles  established  by 
limself ;  and  though  it  had  been  otherwise,  the 

*  Lord  Bacon  says,  "  Judges  must  beware 
of  bard  constructions  and  stnuned  iui'erences ; 
for  there  is  no  worse  torture  than  the  torture  of 
laws."     Fo.  Edit.  vol.  1,  p.  440,  441. 

f  See  New  Pari.  Hist.  vol.  8,  p.  338. 

I  *«  Here  the  D of  A said  to  Mr. 

Macintosh :    *  But  that  opinion^  Sir,  was  over- 

*  ruled ;'  to  which  Mr.  Macintosh  answered, 

*  It  is  very  trae,my  lord,'  &c.  as  w  the  paren- 
thesis.'*   Supplement  to  the  Trial  of  Js 
SlewMrt 


*l} 


for  Murder^ 
wmilil  KtiU  he,  ^otHi^  as  reaXMMiij^  is 

1  niAjf  ;    iidopt  what 

MDfttMi'i  >     Mu  Ihttt  occa* 

I,  Wk  Mlo«v*^  '■*'  In  th^  m^  below  you,  the 
tm  baill  u^ioi)  circumstitnces,  au<l 
llM»B«iv«Htl  to  b«  tappnrteiil  by  other  eircuin* 
iM09i«t  Uil  all  of  tbem  are  to  rctaote,  so 
I  1  mAy  «Av  90  inoOeusive,  that 
•«it  miiy  hni  tiere.*'  1  think  the 
chargetl  against  the  paum-l 
ftMt  Ml  may  «m«  lier«. 

■y  latiK  I  liftf  iiartlofi  for  saying'  so  mucli ; 
I  liii^%4Mr  |«»riuiiip&i%ill  excuse  it^  for  tiie 
niuai  i  fm*r  •-  ♦'■^  rntry.  I  «iUall  only  fur^ 
iImt  «|i||  tbi'  '  t  is  now  on  trial  for  his 

Wit  I  iManr  I  n  1111:01  i^nre  ;  he  pleads 

\«t  Gflilly  i^  '   it  is  the  ati- 

■ffrr  •!  eT<t;  a  give  bmi  a 

tCMd  dttlmtwice  1  Aod  tl  he  tails*  jet  it  be  as  a 


%o  iHilice*  to  expiate  fruilt^  an<l  purge; 


not  as  a  victim  to  the  bUoU 
ftvjr  «f  hit  cocmies,  or  tiie  rage  of  the  de- 
crmmi^tfkuh^  to  appear  popular  prejudices, 
«r  HHTfliMiiiii  ckmour  aud  outcry. 

5Ir.  Frascr,  against  the  Pannel* 

Mj   tiOfid  J Ofldee- General ;— I    appear    at 
far  Mtm,   Campbell  of  Gleoure,  and 
ebildreo,  against  Jaotes  8t ewarti 
iIm  fiiiKMel,  accused  as  s^uiltVi  actor,  art 
m  liMc  mttrder  of  Cotin  Campbell  of 
If  mBiitrder  ag^gratated  by  itg  being 
1  ffmm  a  titatlcious  hatred  and  resent* 
Mr.  Campbell,  ou  ac- 
tlif  l!bi'  (  schars^e  of  bis  duty  id 

kiaim^adlo  bim  by  iiis  majesty. 
Tim  orioKf  my  bird,  im  in  itself  so  horrid^ 
n4  ha  ^kmpftmnt  inslaoce  t«  Htteoded  with  ag- 
]  ^rcoiOMancea  of  «ucb  au  extraordi- 
Mry  wMtum,  aa  must  rouse  the  indignatioa  of 
crarv  »f  thy  fiirQib«r  of  Bt>clety,  and  call 
hiaAf  §»  ill*  moat  Bevero  and  exemplary  pu- 
liiteHil.  Mordflr  baa  always  been  looked 
m^  tdp  IB*  af  the  moat  heinous  crioiei ;  but 
kaO  otiI^bmI  cMwotries^  at  all  times,  that  base, 
I  species  of  tiMirdar,  assaaaiiia- 
M  in  still  i?reac«ri  as  more  de- 
: — what  than  muat  be  the 
•f  ibat  mao^s  Squill,  who  deliberately, 
il,  in  col4  blood f  duno|f  times  of  full 
I  HMt  in  tb«  BDoat  contemptuous  desfiite  of 
coromits  this  most  treacherous 
I  abbtirreii  of  all  murders  !  Heavy  as 
llfii  laad  isT  Qtult  is,  1  am  mirry  to  say,  my 
M,  H  (Am  with  iu  utmost  weii^lit  upon  the 
pMMiriioir  bvfore  you;  which  renders  this 
M  of  mat  iai|iorUri<  >  '  inl, 

bi  of  tull  grcalM-  to  «  »1. 

lfaaBMMM,etpalila,  ii>  .v;;^"  v*^uti 

inali<:e  con- 
fa  their  btvts^  1  .  :.;  u.>,  lor  days:  if 
mA  mm  MwfftmA  te  go  tiapumtheil,  who  01  us 
4ii«slb«  whaii&dividflul.  hovv4:>v(>r  inoooent, 
iiwiv %€■«•«  hiM^e?4 1  rlv  iniiiled  to 

#•  fMhHo  ps«vltcti«ci  1   i  4,  I  hi«|ie,  my 

My  wtt  an  Mil  of  grsAlifr  itii|»ortaiice  than  th« 


ii«.hi»bMb«1 


A.  D.  1752.  [4S 

aafffty  of  individuals,  the  interest,  the  hoaotit  ] 
of  Uiis  country  is  very  nearly  coDcerned^  uot  to 
suffer  the  most  during  aud  hare^f^ced  insult  t#  | 
be  offered  lo  his   uiajvsty'a  auth<j*ity  and  go*  < 
vernment ;  aod  offered  «it  a  time  wheu  we,  i^\ 
common  with  hi&  majesty  ^s  other  subjects,  ana 
reaping  the  fruits  ot  his  mo^t  lienign  reigo  :  I 
say,  my  lord,  our  interest,  our  bottour  is  cod*  | 
cerned,  not  to  suffer  this  without  endeavourtof  j 
to  wipe  off  the  stain  from  the  country,  to  shei»  ] 
the  king,  and  to  shew  the  world,  that  this  isJ 
ilic  bloody  deed  of  one  or  two  iiickcd  and  dea*  [ 
perale  men ;  a  deed  which  the  country  ahhorsiy  ' 
and  which  it  will  not  suffer  tu  go  unpnoished. 

The  gentleman  who  opened  the  defence,  my  J 
lord,  has  been  (is  good  as  his  word,  and  ha9  I 
given  indeed  a  plausible  accoiuit  of  this  affair}  , 
which  mukes  n»e  think  it  necessary  to  lay  be*  ' 
fore  the  Court,  as  distinctly  and  aj»  concisely  afl  | 
I  can,  that  Rtate  of  the  facts  which  there  is 
greatest  reason  to  believe  the  proof  will  ssi« 
blish.  And,  in  doing  so,  I  hope  to  give  yo^l 
tord'ibips  a  more  just  view  of  this  extraordinarj  T 
case  ;  and,  at  the  same  time,  to  be  of  some  nm  I 
in  lending  the  gentlemen  of  the  jury  to  tboait] 
parts  of  the  proof  wbicb  deserve  most  their  at*  j 
teiition. 

Tlie  pannel,  James  Stewart,  my  lord,  is  Iia4  ^ 
tural  brother  to  Mr.  Stewart  of  Ardshie),  wbo  J 
Gominauded  the  men  of  Uxai  name  that  wera] 
engaged  in  the  late  rebellion,  and,  by  means  ofl 
that,  Ik;  ac<iuired  tlieir  affections  and  attach*  J 
ment.     When   Ardshiel  was  obliged  to  laafil 
the  country,  his  brother  (the  pannel)  set  hiiii«>] 
svlfatthe  head  of  the  family  iolerest ;  and  i|] 
not  ap|teann|^  in  tliat  part  of  the  world  a  forced  1 
transition,  he  was  ullowed  to  take  this  authority 
upon  him.     in  a  short  time,  therefore,  he  cam«bl 
to  he  a  leading  man,  and  to  have  the  chief  m^ 
fluence  over  the  common  people.     Such,  my  I 
lord,   was  the  state    of   that  corner    of   th«  | 
country  in  the  year  174y»  wbeu  Mr.  Campbell  ^ 
of  Oleiiure  was  appointed  facir>r  for  his  am^i 
jesly  upon  the  ««tate  of  Ai-dshiel,   and 
other  forfeited  estates  in  that  neighbourhood!  j 
James  Stewart  soon  foresaw  how  much  thia 
^ctory  must  interfere  with  the  plan  which  ha 
had    laid,    aiul    with    the   interest   which   ha 
wanted  10  eslablisb ;  Glenure,  the  re  tore,  very  I 
early  became  the  ot^ect  of  his  ill- will*     But  it  | 
did  not  lonsr  rest  there;  for  in  the  year  175li 
Glenure    having^,    in    consenueucc   of   ortlers  ^ 
from   the  barons  of  exchequer,  caused   Mn 
Stewart  tu  be  removed  from  the  farm  which  ha  i 
poiseseed  unon  the  Ardshiel  ei^ale,  what  wn§  | 
before  but  ill-will,  was  now  turned  into  hatrnl 
aud  resentment.     This  led  him  lo  oppoea  all  | 
Glenure's  measures,  and  particiilairly  Ui  f4ay  | 
the  volunteer  in   the  service  of  b4i 
tenants  upon  the  saioe  estalai  whew 
was  about   to  remove  at  tha  QOaain^  lemv^J 
for  this  [impose,    he  tfcpaired    in  person   to 
lulinburKh,    and,   in  name  af  Ibose  teoanU,  | 
thotH?h  without  the  smallest  eomaiiision  or  ai>* 
ihority  from  them,  made  be  prcaeitted  to  th« 
larda  of  session,  a  bill  of  sospension  of  Ihe  in.  \ 
teniled  removal,  and  oblaified  a  silt  af  < 


43]  25  GEOEGE  II. 

Imb;  this  list  he  prcrailed  ofOB  the 
iotioMte  10  deaare,  who  wat  pot  to  the  trooble 
aod  eipeooe  of  a  jooniey  to  Edinborgb,  be- 
ibre  be  ooold  hate  tbe  gfomidleM  bill  of  too- 
pentioo  OMwered ;  wbwb  was  indeed  all  that 
waa  aeceaiiry  m  order  to  make  it  be  refosed. 

Mr.  Stewart,  mj  lord,  little  aatisfied  with 
tbia  mMocoeatfal  attetDpt,  which  ooofinned 
Gteonre'a  iofloenee  at  the  expeooe  of  hia  own, 
and  finding  himself  forced  to  quit  the  eoimtry, 
and  to  abflAdon  his  fa? oorite  plan  of  popabuity, 
formed  a  most  desperate  scheme  of  rerenge, 
IH>  less  than  a  plot  to  take  awav  the  life  of 
Glenare  in  the  basest  manner.  In  punuaDce 
of  this  scheme,  be  was  at  pains,  over  all  tbe 
eomitry,  to  represent  61enure*s  conduct  in  tbe 
most  disadvantageous  light;  and,  when  he 
thought  there  was  a  geiml  odium  raised,  he 
had  recourse,  in  a  more  particular  manner, 
to  those  in  whom  he  could  most  certainly  con- 
fide, to  those  who  were  most  easy  to  be  stirred 
up,  and  most  inclined  to  any  desperate  deed.* 
Iiifierent  sets  of  such  men,  my  lord,  he  as- 
sembled at  different  tiroes,  and,  after  expa- 
tiating against  Glenure's  ill  conduct,  be  used 
all  his  art  to  convince  them,  that  it  was  their 
duty  to  free  the  country  of  what  he  was  pleased 
to  call  Glenure's  oppression  ;  telling  tbem,  that 
be  bad  once  seen  commoners  in  Appin,  who 
would,  long  ere  then,  have  stopped  bis  career ; 
and  that  he  could  assure  any  of  tbem,  who  was 
hardy  enough  to  undertake  it,  a  certain  escape 
to  France,  and  a  handsome  pension  aftenvanb ! 
By  those  methods,  my  lord,  Mr.  Stewart  used 
Ins  utmost  endeavours  to  stir  up  some  hot- 
heade«l  ruffian  to  tbe  execution  of  hia  plot! 
but  his  endeavours  were  long  used  in  vain,  till 
at  length  Allan  Breck  Stewart  was  thrown  in 
his  way,  a  man  marked  out  for  such  a  pur- 
pose ;  a  deserter  from  our  service  to  that  of 
tbe  Frepcb ;  one  who,  in  both  countries,  was  a 
man  of  des|ierate  fortune,  but  who,  in  this,  bad 
not  only  lost  all  title  to  the  protectiou  of  the 
law,  but  was  become  obnoxious  to  its  severest 
penalties.  This  man  James  Stewart  imme- 
diately laid  hold  of  and  cherished.  It  was 
easy  to  atir  him  up  to  reaentment.  To  him 
therefore  he  communicated  tbe  whole  of  his 
design,  ai»d  with  him  he  concerted  the  execu- 
tion of  it.  Allan  had  nothing  to  lose ;  there- 
fore it  was  determined  he  should  be  the  actor, 
whilst  James  should  lie  by  to  protect  him,  and 
to  turn  the  mischief  as  much  as  possible  to  his 
own  advantage.  Happily,  my  lord,  keenness 
and  resentment,  as  usual  in  crimes,  got  here 
the  better  of  caution,  not  only  with  Allan,  but 
even  with  the  more  aagacious  Jamea ;  for,  in 
tbe  midst  of  their  moat  cunning  contrivances, 
they  could  not  refrain  from  uttering  such 
atrong  and  particular  threata  against  Glenure, 
as  immediately  pointed  them  out  for  tbe  objects 

*  This  I  ooqjecture  to  be  the  passage  re* 
ferred  to  in  the  observations  aubioined  to  the 
tl'a  dyfaig  deolarationa  in  the  *  Supple- 
tft  the  Trial  of  Jamea  Stewart,*  and  in- 
Mrttd  at  thi  end  ofthif  CMS. 


Trio!  ofJamet  Siewart, 


[14 

\\  soapicioB.  Both  of  them  have  many 
times  threatened  him  with  death,  and  both  of 
tbem  have  even  gone  beyond  general  lenns; 
for  Allan  declared  be  ww'tUi,  on  tb*  nn»t  occa- 
aioD,  shoot  him  as  be  wooki  a  b  ack  cock ;  an 
expressioo  very  apphcable  to  the  tiase  manner 
which  he  afterwards  made  use  of:  and  Jaaiea, 
still  more  inveterate,  swore,  in  tbetiillness  of  his 
heart,  that  be  woold  shoot  Glenure,  even  if  he 
himaelf  was  so  disabled,  aa  to  be  obliged  to  go 
upon  bi.s  knees  to  a  window  in  order  to  do  it. 
These  are  instances  of  the  threata  which  they 
made  use  of,  which  first  pointed  them  out,  and 
which  miist  still  go  a  great  way  in  convincing 
every  thinking  n»an  tluit  they,  and  they  only, 
were  bis  murderers. 
In  cons4:qiienoe  of  the  last  resolutioo,  that 
should  act  whilst  James  stood  at  the 
helm,  Allan  hud  himaelf  out  to  ^ei  particu- 
lar information  of  Glenure^s  motions;  and, 
for  that  piirpoae  he  contrived  to  make  a  Tisit  at 
Faanacloicb,  tbe  very  next  house  to  Glenure, 
and  within  a  mile  of  it ;  there  be  remained 
upon  the  look-out  till  Monday  the  llth,  when 
Glenure  set  out  from  his  own  house  fur  Fort- 
William.  Upon  which  Allan  immediately  re- 
paired to  his  associate  James  to  communicate 
the  intelligence  he  had  got,  vis.  That  Glenare 
was  gone  to  Locbaber ;  that  he  was  resolved  to 
persist  in  removing  the  tenants  of  Ardshiel,  and 
was  certainly  to  return  for  that  purpose  before 
the  term-day,  the  15th.  Having  upon  this  in- 
formation cooaolted  together,  and  aettled  the 
plan  of  operations,  tbe  pannel  furnished  hia 
friend  with  a  dress  more  proper  for  what  he 
was  going  about,  giving  him  a  suit  of  his  own  - 
clothes,  a  black  short  coat,  trousers,  and  a  blue 
bonnet ;  and  thus  equip|ied,  beset  out  the  next 
momiug,  Tuesday  tbe  12tb ;  but,  knowing  that 
Glenure  might  possibly  not  return  for  a  day  or 
two,  in  order  to  avoid  suspicion,  he  made  a  tour 
among  his  relations,  going  first  to  Balladieliah, 
from  thence  to  Glenco,  from  thence  to  Callart, 
where  he  staid  Tuesday  night,  and  on  Wednes- 
day tbe  13th  he  went  Inch,  by  tbe  same  route, 
to  Ballacb^lish  ;  in  all  which  circuit,  be  waa 
at  hand  to  lay  wait  for  Glenure,  at  whatever 
time  he  should  return  from  Locbaber.  On 
Thursday  the  14tb,  when  there  was  a  moral 
certainty  that  Glenure  would  return,  (be '  hav- 
ing appointed  a  meeting  with  several  gentle- 
men in  the  country  of  Appin  that  evening)  Allan 
left  Ballachelish's  house  under  pretence  of 
fishing,  and,  very  soon  afler,  appeared  at  the 
ferry  of  Ballachelish,  by  which  Glenure  roust 
necessarily  pass,  in  his  way  from  Locbaber  to 
Appin :  there  be  met  tbe  ferry  *man,  and,  hasti- 
ly calling  him  aside,  inquired,  with  more 
tha6  ordmary  earnestness  and  anxiety*  if 
Glenure  had  passed  there  that  day ;  and,  being 
answered  that  be  had  not,  Allan  immediately 


*  It  is  observed  in  the  *  Supplement,'  that 
the  expresoiona  *  hastily,  more  than  ordinary 
•  earnestness  and  anxiety,'  are  not  supported  by 
the  evulenoe  of  the  ferrvman.  See  in  the  proof 
the  depoaitioa  of  Archibald  Mao  timet. 


45J 


Jut  Munler. 


As  D.  list. 


US 


mi  9f  tli#  \Mf  Unmrdi  tlie  faigli  grounds 

•Jbof  t  ill*  honm  ;  from  whence  bt  hail  a  view  of 

lb*eooiiiry  «fiMin<f,  t\n  boih  siiks  of  the  Loch, 

'  %  mil  fuavi^v  into  the  wood  of  Letter- 

In  tilts  wo<kI,  inv  lord,  it  was,  ihat  be 

loot  n  irui a  iH out  r  station  for  the  exe- 

coiiMi  of  ^  :ii ;  n  Httle  thicket, 

Mti*tiiiii|f  ^  '  1  few  paces  of  the 

kaffc»wijr«  ^^mns  *»ii*ch  every  traTelter  must 

mtammmf  mi»  ;    from  whence,  himself  un- 

wnm^  lie  «»itld  diitinctly  see  the  road  leadiuoj  to 

ib^lffrrj  of  BalUHielii^h  on  the  Lochaber  side, 

md  lb*  ro«4  oo  the  Appin  sidt%  leading  from 

i  10  Ibt  wood  of  Letter 0)0 re*     Here,  my 

,  hm  posted  himself  with  uoe  or  two  londed 

pffitMpii  for  the  purpose ;  and  here  he 

i  mtit  im  Mr.  Campbell  of  Glenure  had 

t  tlie  §Knjf  and  was  riding  along  the  road 

jCli  Ike  wood.     It  MAS  then,  my  lord,  that 

I  bffvdt  snztU  I  his  lon^  wished- for  oppor- 

wul  wlitrri  Gl^'imre  was   come   within 

ttMifdwetit  diuanee,  iU\%  ahaDdoned   assassin 

•boi  bafn  dfsd  tiith  to^o  balh}  from  behind  :  a 

fMOHtsrtlty,  US  it  was  hiirbartius  and  in> 

i!   m  di«i  of  which  there  ii$  hardly  an 

Bplettt  titis  part  of  the  kingdom,  whose  in* 

mti,  li»wi*Tef  rasli  they  may  be  to  brave 

dsoffffY  io  4n  open  manner,  have  never,  till 

'      I  cnuie  of  their  unworthy  country- 

braoded  witii  the  ignominy  of  base 

ranllY  ■Miiflitistion ! 

\  iMf  iOf^  tbtis  exccuteif  his  deadly  pur- 

I  ifOOMdist^ly  dtsappearrd,  in  order  to  he- 

'*  lo  the  concealment  provided  for 

■lliii^  m  hts  way,  afipra  liidden  manner, 

aairfnii^ht,  at  Ok'nco'])  house,  where  he 

III*  Isdy  and   hi  r  uon   that  Gleuure 

Pll  mor^rrr.^  z^nA,  w  iilmrn  any  more  conver- 

•*■••  ^^  an  a  consequence 

«f  •Iwi  >,  that  he  himself 

ii«Wi4^1y  to  Wiive  th«  country.     Soon 

ft,  br  arrWr^l  st  his  alio* red  retreat,  the 

fwf  K  ao,  thehabilation  of  the 

ti  •  converiiai Ion  which 

It  and  lli«  b<ntiii  i  !         !         "d  of  the 

'  m  m  mmv  than  he 

fto  luijj  titnirn-   njr,  rnier  faintly 

^  I  dmjriii;^  Itts  own  couccro  in  it,  he  told 

lis  iniBd  tbat  bo  was  sure  the  family  of  Ard> 

iMiiwoSd  lie  Riiii|irctiHl,  |uirticularly  James 

^twifl  oad  Kl^  ^nn  Alhn  :   nsln;^  thiMtemark- 

■•e  #spr««^  XT  oil  Id  be  no  fear 

•^  •b«»  if  I  MPS  did  not  betray 

(^•^  t*j|hec:i  /s»,  wiir%  he  feared,  was 

^■soMNi-tii  <  10  Ju«  fniher. 

Alltliip  wbtlttf  uiy  lord,  the  punnel  remained 
it  knsio  tiiMlMitfrb<»d  ;  and  whvn  the  accounts 
•*■#  9/f  Gh  '  "  I    and  every  body 

Hsimlbv  i»*  18  hoBtcnin^  to  |jfo 

lilMdt  oftn  iIh*  rnr|»*t ,  rir  rtf  v«»r  "ffc red  to  *tir, 
ii|,  be  wiMild  not  sutfi^r  any  one  ut  ht^  fiimily 

lifooe*rit       ^^'   -   -■  ' '    V    !  mher  thing's 

it  wjadi  !>'  "red,  but  the 

■Ml^viniii.i  ,  viof  bisatten- 

lvwib^mtr  v«o  closely  Itukeit 

■*i^  4llia  i/'  *  re  wns  a  Jiccesfiity 

^  Aiks*ft  Immg  kept  oui  of  the  way  at  any 


Ik 


rate ;  James  therefore  immediately  dispatdied 

Alexander  Stewart  nackman,  his  relation,  and 
a  person  in  whoin  ne  had  entire  confidence,  t^] 
Fort- William,  with  a  most  pressing  demand,  | 
as  he  himself  acknowledges,  for  money  to  sun-  ' 
ply  his  friend  Allan,  and  to  enable  him  to  make*] 
I  lis  escape  from  Justice ;  and  when  the  pack-  f 
man  returned  with  a  less  sum  than  was  ex-  ! 
pected,  James,  in  the  most  critical  juncture  of  I 
ills  own  affairs^  added  two-thirds  of  the  money 
which  he  had  for  his  own  support  to  the  sum' 
brou{^ht  from  Fort- William,  and  sent  away  tht 
faithful    nacknian,   with  ibis  money,  and  hia.. 
French  clothes,  to  Allan  Breck,  givini^f  particu*  I 
hr  directions  with  regfard   to  the  place  of  bie>^ 
concealment ;  a  circumstance  no  one  can  well  \ 
be  supposed  to  have  known  who  was  not  in  th«H 
secret,  who  was  not  originally   privy  to  Ujoh 
orime  for  which  he  was  obliged  to  have  recours0»l 
to  that  cotieealment.  i 

These,  my  lord,  are  the  facts  which,  I  ha?«' 
reason  tobi^lieve,  will  sooo  be  proved  to  your  | 
lordship,     The  {iTentleman  bas  been  pleased  t0 
express  bis  surprise,  that,  alVerso  strict  au  en* 
quiry,  this  should  be  all  that  is  made  appear;  | 
and  to  say  thai  these   facts  are  trivial,  and* 
not  relevant  to  infer  the  crime ;    but  1  cannol  < 
think  any  impartial  man  wbo  bas  read  tbe^ 
-ndictment  now  in  my  band,  will  join  intb«>J 
^fftitleman's  surprize;   on  the  contrary,  Ibe*^ 
reve  every  such  person  roust  join  with  me,  ia« 
thinking  no  small  praise  due  to  the  very  pro- 
per encouragement  and  assistance  of  the  crown, 
and   to   the  very   uncommon    diligence   and  . 
activity  of  the  private  prosecutors,  which  to* 
g'etber  have  been  able  to  throw  so  much  lij^hl' 
upon  so  dark  a  tbCene,     Your  lordship  has  beeti'| 
told,  that  the  tact!)  menttoacd  are  not  sufficient  « 
to  infer  the  crime  libelled.      I  need  hardly  ob- 
serve, my  lord,  that  such  crimes  are  particular!  j  ^ 
villainous  and  destructive,  fronk  the  hidden  and  < 
concealed  manner  in  whichthey  arecommitted,  J 
which   allows  of  no  defence,   and  too  often  | 
screens  from  punishment:    their  very  oatumfl 
does  not  admit  of  such  a  proof  as  may  be  eic«  j 
pected  in  other  cases ;  a  proof  by  circumstanoesl 
is  all  that  can  be  looked  for;    Indeed,  wheiif 
that  is  conclusive,  it  is  of  all  others  the  most  ^ 
convincing.     Witnesse«  may  be  prtlai,  tliejfi 
may  be  perjured  ;    but  a  closely   connected  - 
chain  of  circumstances  is  liable  to  uoneof  thosftH 
objections,     ^^w,  my  lord,  I  humbly  appro*  ^ 
beod,  no  chain  of  circumstances  can  be  stronger  J 
Dor  more  closely  connected,  than  that  whtcb  1 J 
have  just  bid  before  your  lordship.     You  se#  j 
a  discontent  rationally,  nay  probably  accounted | 
for ;  the  strongest  and  most  particular  tbre^ti  | 
following  that  discontent,  and  the  eommiisar" 
of  iht'  crime  as  immediately  fbltowing  tbe 
threats  ;    the  clearest  instance  of  the  **  maluati 
'*  mioatum,   et  damnum  secutum.''      But  i|| 
does  not  rest  here  ;  vou  see,  my  lord,  the  mur-  ^ 
derer  traced  from  Jay  to  day,  Irom   bourt^j 
hour,  from  place  to  plare,  to  the  very  day,  th«l 
very  hour,  almost  to  ihe  very  spot  Id  which  th^J 
tnnrder  was  committed  ;    and  you  see  his  aa* 
sociate  b  the  itiiGteit  conoezion  and  taUnaacy 


47] 


25  GEORQE  II. 


Trial  of  James  Stewart  f 


[48 


wiHb  huBy  cabelliDg^  in  private,  audi  farnishin^ 
bun  with  a  proper  drefs,  before  the  murder,  and, 
after  it,  famisbiDgf  him  with  dotbei  and  money, 
to  enable  him  to  fly  from  justice;  and  what 
deser? es  particular  attention,  von  see  his  asso- 
ciate minntely  acquainted  with  the  place  of  his 
concealment,  the  pbce  preiiously  pointed  out 
for  his  retreat,  and  the  murderer,  m  that  retreat 
where  be  thought  himself  in  safety,  expressing 
his  concern  for  his  friend  in  ? ery  remarkable 
terods,  in  terms  which  carry  a  strong  oouTio- 
tion  of  their  ffuilty  conspiracy,  bat,  at  the  same 
time,  sh«{W  the  cunning  with  which  they  were 
conscious  of  hating  contrived  it  I  cannot 
doubt,  but  your  lordship  will  think  this  a  chain 
of  circumstances,  more  than  sufficient  to  infer 
the  crime  libelled :  at  the  same  time,  I  must 
beg  leave  to  observe,  that,  in  such  an  indictment 
as  this,  there  was  no  necessity  of  mentioning 
any  one  circumstance ;  it  would  have  been 
•nmcient  in  law,  and  the  gentlemen  acknow- 
ledge it,  to  have  libelled  art  and  part  in  seneral 
terms ;  that  is,  that  time  and  place  libelled,  the 
crime  was  committed,  and  that  the  pannel  was 
guilty  art  or  part  of  that  crime.  Now,  if  my 
lord  advocate,  from  the  humanity  of  his  dispo- 
sition, from  a  desire  that  every  offender,  how- 
ever heinous  his  offence,  should  have  the  fairest 
trial,  and  every  opportunit;jr  of  making  his  de- 
fence ;  if,  from  these  motives,  he  has  given  a 
very  long  and  particular  indictment,  when  onl^ 
a  very  short  and  general  one  was  necessary,  it 
is  somewhat  invidious  in  the  gentlemen  or  the 
other  side,  to  turn  this  into  an  obieetion  to  the 
relevancy.  But  let  them,  my  lord ;  the  point  is 
fixed,  as  well  by  law,  as  by  uniform  practice ; 
and  therefore,  whilst  we  contend  that  the  cir- 
cumstances, as  particularized  in  the  indictment, 
are  fully  reh*vant,  we  at  the  same  time  hum- 
bly hope  from  your  lordship  an  interiocutor 
upon  the  general  point  of  art  and  part,  indepen- 
dent of  these  circumstances. 

It  has  been  objected  to  this  indictment,  that 
an  accessary  is  here  brought  to  trial  before  the 
principal  is  convicted,  which  is  attended  with 
these  bad  consequences ;  that  proof  must  be 
led  against  the  principal  in  absence ;  that  his 
greatest  enemies  may  be  produced  as  witnesses, 
and  the  proper  exculpatory  defences  mar  be 
omitted.  And  further  your  lordship  has  been 
told,  that  this  is  contrary  to  the  laws  of  neigh- 
bouring nations,  particularly  that  of  England, 
and  contrarjT  to  the  law  of  Scotland,  as  handed 
down  to  OS  in  the  books  of  lieg.  Maj.  Quon. 
Attach.  Stat.  Dav.  2,  and  sir  George  Macken- 
zie. There  might,  my  lord,  have  heen  some 
room  for  such  an  objection,  if  no  former  notice 
bad  been  taken  of  the  principal ;  but  f  can  hard- 
ly think  any  objectioa  will  be  ailmitted  in  the 
present  case ;  when  the  principal  is  indicted, 
wlien  every  legal  step  is  taken  by  the  prosecu  • 
tore  for  bringing  him  to  jaskioe,  and  when  the 
only  conviction  which  oar  law  admits  of  in 
aoeti  cases,  is  gone  against  him.  The  incon- 
tcttieocea  whicli  it  was  said  might  folk>w  from 
Ika  present  practice,  are  ftrifling,  compared  t» 


quence,  if  the  laws  altowed  not  an  accessary 
to  he  tried,  whilst  the  principal,  conscious  of  hui 
own  guilt,  dared  not  to  appear.  It  is  but  find- 
ing out  some  desperate  fellow  for  the  execution 
who  can  afterwards  be  easily  kept  out  of  the 
wa^r ;  and  the  most  inhuman  acts  mnstgo  un* 
punished,  the  most  abandoned  villains  may 
iaiigh  at  justice.  The  authorities  produced  in 
point  of  Uw  are,  no  doubt,  great ;  but  times 
and  circttOEKtances  derogate  from  the  greatest 
authorities.  If  what  sir  George  Mackenzie 
has  given  us  as  his  opinion  was  once  law,  it  is 
beyond  all  doubt,  bjjf  later  practice,  no  longer 
held  as  such ;  and  it  signifies  as  little  what  is 
the  law  of  neiffhbooring  nations,  as  what  was 
once  our  own  Taw,  if  custom,  the  justest  of  all 
legislators,  directed  by  common  sense  and 
equity,  has  now  enacted  the  contrary.* 

The  hardships,  my  lord,  which  it  is  pretend- 
ed the  pannel  underwent,  can  never  be  admit- 
ted  as  objections  to  this  indictment.  That  they 
may  not,  however,  leave  any  impression  upon 
the  gentlemen  of  the  jury,  or  even  upon  this 
audience,  I  shall  give  your  lordships  the  true 
account  of  what  are  called  hardships ;  and 
they  will  no  longer  appear  to  be  such.  That 
upon  which  most  stress  seems  to  be  laid  is, 
that  the  pannePs  wife  and  his  children,  who,  by 
law,  cannot  be  called  as  witnesses  against  him, 
have  been  precognooced,  or  judicially  examined, 
and  that  their  declarations  are  proposed  to  be 
produced  in  this  trial.  The  fact  is  true ;  and 
nothing  is  more  easily  accounted  for.  When 
this  murder  was  committed,  all  was  confusion 
and  ignorauce ;  and  every  method  that  could 
be  imagined  was  found  necessary,  in  order  to 
get  to  the  bottom  of  the  deep-laid  plot.  It 
was  at  that  time  that  James  Stewart's  family, 
in  common  with  aH  in  that  neighbourhood, 
were  called  before  a  judge,  and  examined  upon 
what  they  knew  of  Glenure's  murder :  it  was 
more  than  probable,  that  some  one  of  that 
country  committed  the  murder,  and  that  many 
in  that  country  were  in  the  .secret  of  it :  but 
when  these  people  were  examined,  neither  of 
these  acts  of  guilt  was  charged  upon  any  par- 
ticular person :  Allan  Breck  was  not  then  ac- 
cused of  the  actual  murder,  nor  James  Stewart 
of  being  accessary  to  it.  So  that  his  wife  aud 
chiMren  were  really  not  examined  with  any 
view  to  him  ;  they  were  examined,  to  discover 
the  truth  in  general,  before  it  was  known  upon 
what  particular  |ierson  the  accusation  would 
fall.  iVhether  their  declarations  will  be  pro- 
duced in  this  trial,  may  be  a  question  after- 
wards ;  but,  in  the  mean  while,  it  appears  not 
contrary  to  law  or  equity,  that  they  should  be . 
produced :  it  is  confounding  things  to  say  that 
this  is  making  the  fianners  wiiie  and  childrea 
witnesses  against  him :  the  declarations  will 
not  he  produced  to  prove  the  truth  of  any 
thing  contained  in  them,  of  which  they  would 

*  As  to  proceeding  ag^ainst  an  accessary 
without  a  previous  conviction  of  the  principal^ 
sec  Bomet  on  the  Criminal  Law  of  sootlaodv 
14,  pp.  S88|  et  ieq* 


49J  '^^mr       for  Murder 

Ml  I0  lifil  itidanec ;  ih«y  Ar«  only  to  prove, 
llifll  1^  Mrvofit  i«bo  emitted  the  clccUmtions, 
ihmw  thtng% ;  «ad  if  nay  words  of 
4  ^yft  efttiie  of  tuspicioti  o^amst  the 
Wmtii  b*  Mtrefy  competeut  to  prore 


A,D,  1752. 


[SOj 


itil 


>  Mr  the  ttttiomny  of  third  partief^, 
liliROltbfts  liom^  u\ut\gtiUer  ia  the  came 
•0  fuote  lli«fii  by  iiroductioD  nf  tUe 
IhiOiaelw  judicially  committed  to 
ff  Tb«  dose  eon fiti«no eat  of  the  panned 
I  m»  UUl  of  fiotiie  others,  who  were  then 
»  op  tIpAQ  suspiciou  of  guilty  but  are  noiv 
It  Ift  pt«'liiOfttJ  «t  %rilnes«e»,  was  owing  to  the 
mhM  •f  lilt  p)a€«  where  I  hey  were  confined. 
Uia  OMJotj**  grai  '  ive    been  used    Jis 

ammt  oMire  for  'v  of  state  prisoners 

l«f«QiDHMMl  crutiMi»r>  :    U  is  DOt  fO  he  W«Ul- 

la  thca,  if  military  otfieers*  unacqubiut- 
Uk  diJimcliuas  of  btr,  apphed  lo  the 

M  M4fr«  wbkb  they  were  iu  use  to  re- 
I  fir  ll*  former:  on  smun  as  the  law  was 
feuwi*  il  was  obcyt'd  ;  nor  19  it  pretended, 
|ii#|iMiHd,  or  aoy  oilier,  was  closely  coti- 


9tm  kmu  oArr  the  couttiianding  oliicer 
lliat  Iho  law  forbade  it.     It  11 


V«e,  m  Bpw  camamdiag  officer  came,  to  whom 
1^  bw  was  DQI  IniDQilialely  explained,  whicii 
ImI  tlie  MCQiid  close  coutiaemtnt  coin- 
«f ;  Int  be,  aa  well  as  hiii  predecesstjr, 
<iirng>  III  the  iaw^  an  10011  aa  it  was 
iiMnaii  to  biin.  That  it  was  not  there- 
ksovti  tA  both,  us  »r»on  as  niitfbt 
fHUiod's  coufuiel  must  account 


ThM  tl  urai  altogether  their  buiiiieHs  ^ 
I  lii^  oaM^qnence,  whaterer  it  be,  which 
t  tfl^cn  tile  neg-lect  of  it^  ous^ht  oot  (o 
I  ilie  pmaecutars,  far  lesa  upon  thu 
t  of  the  anny,  who  the  panncl  him- 
•iiwlc4|tfa(  bate  alt,  m  any  charge 
r  bad  oi  bim,  done  tbeir  duty  with  the  ut' 
Dity,  alwaya  like  noldiers,  aiitl 
It  11  vurpnainff,  the  gentlemen 
I  mmoAiim^  as  u  hardabm,  their  being  re- 
\  10  the  (lannel,  after  they  came  to 
f  ;  Ib^  wiiat  he  conacious  that  this  waa 
of  not  00  bourns  duration.  They 
UnilUiiiea  ttom  the  chief  riia|pi»trute, 
l4o  mm  ouin^,  oa  ibe  iliko  of  Argyll  was 
ipol,  to  take  any  step  without  his 
ipfrabatiiiHt  acnt  diri^ctly  to  ari|ndtQt 
Iff  ifctfliamftnd  :  aiui  Wt^  t'ruce  ifuve  tinme- 
ihto  fli^lvrv  f '  Thegrntle- 

Mn  whm  aft'  1   one  thing, 

•lidb,  I  mkm  |b  *ay,  b«  nhme  tiill  think  a 
lanMifp  itM  ibit  paonei ;  I  meaa^  my  lord, 
ia  Weiam  falbm  to  that  geinleanan'a  ahare  to 
^«i  K;«  4^fiMKe ;  and  I  caooot  belp  tbtoking 


•tiliiiQf  tB  wiltiene*  ariauig  from 
4.o%iup  toibr  7   :    ^    M€t  Hame'a  Com- 
«,  TrUI  i  N    ToL  «,  c.    13, 

p.  tM      TIhimmU.  *'.  i.^n  '  Bupptemeot*  ob- 
'*  By  la»  adii  praoioB  ilie  deelaftpta 
ittM  f^ut  t.c-  hrongbi  OS  witnewei 
I  ibo  pftosel  r  tekntioos  were 

rooO  ;,it^U;  antat  incvii* 

HytolMf  tfurv.' 
fOL  XIX 


the  complaint  of  the  panners  want  of  able  itt4^ 

sastance,  coming  from  that  side  to  this,  look] 
Itke  banter:  for,  setting  aside  my  lord  advocate, 
who^  office  ohligea  him   to  assist  tite  pros&«l 
cutor^  ;  1  need  only  beg  your  lordship  will  caul;,] 
your  eye  first  to  Uie  one  side  of  this  Uhle,  ntMl| 
then  to  the  other,  in  order  to  judge  where  tlu 
advantage  lies  in  age  and  eKperieocc. 

Upon  the  uhole^  my  lord,  1  cuiiuot  doubt  1 
but  yonr  lordship  will  find  this  libel  relevant  mi 
iDJer  the  moHt  severe  pains  of  law,  at  tbft] 
crime  tihf lied  is  of  tb^  most  heinous  nature {1 
aod  that  you  will  remit  the  pannel  to  the  know- 1 
ledge  of  an  assisse,  who,  1  find  from  the  list  iit  | 
'my  hand,  must  be  men  above  the  imputation  j 
of  any  other  prejudice,  but  whut  every  gooj  ( 
man  must  feel  against  so  honid  a  crime ;  n  j 
prpjudicp,  which,  1  am  sure,  tliey  will  carefully  j 
distiuguish,  as  1  hofie  ne  all  do,  from  any  per*  j 
tonal  prejudice  against  the  nannci,  who  has  an  I 
undoubted  right  to  demand  their  most  impar* 
tial  attention  to  the  proof,  by  which  alone  hit  1 
inucH!euce  miuit  stand  confessed,  or  bis  guiJi  j 
meet  with  its  deserved  puoishment. 

Mr.  Enkinc^  against  the  paoneT. 

My  lords  ;  I  have  likewise  the  honour  to  h#'] 
of  counsel  for  the  prosecutors  on  this  trial,  a«i4i 
as  such  it  is  my  duty  to  sun^jort  tlie  cbargp^l 
exhibited  in  the  hhel ;  whicti  has  been  just] 
now  very  fully  and  distinctly  openi'd.  •  ] 

7*he  importance  of  the  irial,  the  respect  I 
have  for  the  hunouriihle  court  and  this  audi?- 
ence,  were  alooe  atifficient  to  have  laid  mt  I 
under  great  unenftlieei:    hut  thiit  unei^siueaa  j 
is  greatly  increnaed,  wbeti  I  find  myself  eii-  ] 
gaged  in  a  task,  which  I  am  at  present  but  ill 
prepared  to  execute. 

Though  1  early  and  willin^rly  engaged  tt  \ 
take  a  part  in  this  trial,  an  unexpected  distress,* 
which  has,  for  some  days,  dissipated  my  al^^ 
tenlioo  to  business,  made  me  bojie  the  proae*  , 
cutors  would  have  relieved  me  of  an  engage^ 
ment  which  1  was  unlit  to  perfonn^  and  dis* 
peused  with  my  attendaucc,  which,  I  uppre* 
bended,  could  not  be  material  Lo  them;    but 
in  this  I  have  be?n  diHappiuted  by  the  tudis* 
po<>itton  of  a  gentleman  of  great  abilities  and 
experience,   which    has    unhappily    deprive^ 
them  of  his  abler  assistance. 

For  this  reason  I  will  beg  leave  to  confine 
myself  entirely  to  make  the  proper  answers  t^ 
the  arguments  which  have  been  urged  by  the  | 
leemod  eeotlemen  in  defence  of  the  prii^oner, 

I  tlitir  forbear  lo  enlarge  upon  the  mauy  4 
aggravating  circumstances  that  appear  in  the 
horrid  scene  just  now  opened  to  your  lordf 
sbtpf. 

1  will  Dot  attempt  to  iofiame  the  [ury,  by 
f^ivipg  bote  reins  to  an  imagination,  warmeil 
by  a  reii  regtrd  for  the  gentleman  decea%ed| 
compessioo  for  the  widow  and  the  fatbedcssp 
under  p^'culiar  circuiaetABoee  of  distress,  p 
high  concern  for  the  inlereel  of  tbis  country, 
and  the  prvservation  of  our  prraout  happy  cori' 
aiitntion  ;  all  which  appear  to  have  been  struck 
»t  hy  the  baud  that  gaveibia  wound, 

E 


51]  25  GEORGE  IL 

Tliete  consideretions  cannot  fail  to  kindle 
indig^iiation  in  erery  breast;  and  I  ana  confi- 
dent tliey  have  already  had  the  effect  to  rouze 
the  atteniiiin  of  the  Conrt,  and  balance  a  roit- 
placed  compassion,  not  unnatural  to  hnmane 
minds,  which  sometimes  blunts  even  the  sword 
of  justice :  but  the  prosecutors  do  not  ejrpect 
to  obtain  a  judgment  against  the  prisoner  in 
this  court,  upon  anj  other  foundation  than  a 
real  conviction  of  his  guilt,  arising  from  evi- 
dence clear,  unexceptionable,  and  agreeable  to 
the  laws  of  this  country. 

The  laws  of  this  country  are  favonraUe, 
particularly  favourable  to  persons  under  trial 
for  their  life ;  and  the  prosecutors  are  willing 
to  allow  the  prisoner  tne  full  benefit  of  every 
advantage  that  these  laws,  or  the  practice  of 
the  court,  can  give  him  a  title  to. 

This  being  the  case,  1  cannot  omit  observing 
how  improperly  the  prisoner  has  rested  the 
greatest  weicht  of  his  defence  upon  clamorous 
assertions  of  unfair  advantages,  and  unlawful 
oppression  upon  the  part  of  tlie  prosecutors. 

For,  Imo,  Though  they  were  founded  on 
truth,  they  would  not  amount  to  a  defence 
against  the  libel :  one  crime  cannot  compen- 
■ate  another,  nor  an  injury  received  from  the 
prosecutor  wipe  away  the  guilt  of  the  pri- 
soner. 

But,  2do,  These  are  measures  so  inconsis- 
tent with  that  glorious  spirit  of  liberty  that 
rei^s  even  among  the  rulers  in  this  age  and 
nation,  so  inconsistent  with  the  known  mild- 
ness and  clemency  of  his  majesty's  govern- 
ment, and  the  unfortunate  circumstances  of 
the  privato  prosecutors  in  this  trial,  that  I  can 
hardly  persuade  myself  it  would  be  necessary 
to  make  a  more  particular  answer  to  these  com- 
plaints. 

Nevertheless,  as  f  am^nsible  that  nothing 
is  more  inseparable  fVom  noble  and  generous 
minds,  than  a  desire  to  throw  every  atom  into 
the  balance  on  the  side  of  the  distressed,  while 
there  remains  a  possibility  of  their  innocence; 
and  that  a  simple  suspicion  that  the  prisoner 
had  suffered  any  unnecessary  hardship,  or  been 
deprived  of  anj  means  of  defending  himself, 
might  avail  htm  more  in  the  event  "bf  this 
trial,  than  the  best  defence  in  the  mouth  of  the 
ablest  advocate;  for  that  reason,  I  will  beg 
leave,  in  a  few  words,  to  shew  the  Court  what 
foundation  there  is  for  auch  complaints. 

The  first  was,  that  the  prosecutors  had  de- 
prived him  of  the  benefit  of  counsel,  by  re- 
taining roost  of  the  ablest  lawyers  at  the  bar. 

To  this  I  can  make  no  stron|;er  answer, 
ihan  what  the  Court  has  just  now  heard  from 
the  very  gentlemen  who  make  the  complaint, 
and  win  be  confirmed  by  these  who  are  to  sup- 
port them.  I  am  confident  they  will  convince 
the  Court,  and  all  who  hear  them,  of  the  ab- 
surdity of  such  a  complaint,  when  urged  by 
four  gentlemen  of  such  abilities. 

In  the  second  place,  it  has  been  laid,  that 

the«prisoner  bad  been  deprived  of  hia  KbeKy, 

sind  kept  in  close  confinement  contrary  to  law, 

4lebarred  -the  coD?«iMtian  of  his  hiuHj  end 

4  .      - 


Trial  of  James  Siewartf 


£52 


friends,  and  denied  access  to  speak  eitber  to  his 
agents  or  witnesses. 

To  all  which  it  may  be  answered  in  the  ge* 
ncrat,  that  the  laws  of  every  well-governed 
realm  certainly  allow  the  confinement  of  p^- 
sons  charged  with  capital  offences,  in  such 
manner  as  they  may  be  secured,  till  they  can 
be  brought  to  trial.  That  no  limitatran  of  this 
rule  has  been  introduced,  either  by  law  or  prac- 
tice, in  Scotland,  other  than  what  is  contained 
in  that  valuable  and  salutary  statute  of  pari. 
1,  sess.  9,  of  king  William,  for  preventing 
wrongous  imprisonment.*  No  part  of  which 
has  been  infnnged  in  the  present  case.  That 
the  prisoner  has  been,  since  he  came  to  thu 
pUce,  strictly  confined,  cannot  appear  unrea- 
sonable or  oppressive  to  those  who  know  that 
of  late,  in  apite  of  the  vigilance  of  the  ma- 
gistrates, several  criminals  have  escaped  from 
their  gaol,  whose  cases  were  less  desperate 
than  his,  and  who  had  no  formidable  tribe  of 
friends  or  accomplices  to  assist  their  escape. 

It  will  not  appear  surprising  or  unjust,  that 
the  magistrates  were  cautious  to  give  access  to 
any  persons,  under  the  colour  of  their  being 
agents  or  witnesses,  without  a  proper  warrant, 
when  it  appears  from  the  proof  to  be  brought 
in  the  trial,  that,  during  the  prisoner's  confine- 
ment in  the  garrison  at  Fort-SVilliam,  he  found 
means  to  tamper  with  the  principal  evidences, 
(though  also  in  custody,  in  order  to  prevent 
such  undue  influence)  Iry  emissaries,  who 
carried  repeated  messages  m  his  name. 

This,  I  think,  might  likewise  appear  to  be  • 


*  A  late  writer  on  Scots  law,  Mr.  Burnett, 
(Treatise  on  various  branches  of  the  Criminal 
Law  of  Scotland,  chap.  16)  gives  an  abstract 
of  the  enactments  of  this  statute ;  and  after 
contrasting  its  provisions,  imrticiilarly  those 
concerning  bail,  with  those  of  the  Habeas  Cor- 
pus Act  (Stat.  31  Car.  9),  proceeds,  **  When 
m  addition  to  all  this  it  is  considered  that  the 
act  1701  provides  most  effectually  for  a  due 
and  regular  commitment  in  order  to  trial,  that 
the  f>enaltv  on  a  judge  for  a  breach  of  the  sta- 
tute is  both  higher  and  more  precise,  and  the 
period  fixed  for  commencing  and  carrying^ 
through  the  trial  more  determinate,  it  may 
justly  be  considered  as  more  favourable  to  the 
sutject  than  the  boasted  Habeas  Corpus  Act  of 
England,  notwithstanding  one  summary  ap- 
plication for  lilieration  may  not  in  every  caae 
afford  so  speedy  a  remetly  as  the  proceedings 
under  the  writ  of  Habeas  Corpus." 

In  the  same  chapter,  however,  he  notices 
that  Ihis  same  act  of  1701,  "  has  been  called 
the  worst  penned  and  the  most  obscure  act  in 
our  statute  book,  and  some  have  even  gone  so 
far  as  to  maintain,  that  it  was  purposely  made 
obscure." 

So  in  tlie  case  of  Andrew  against  Murdochs 
June  1806  (reported  in  the  Appendix  to  Bur- 
nett, N"*  XVI)  Hope,  lord  justice-clerk,  said, 
"  Onr  act  ITOl  is  greatlv  more  lavourabe  to 
the  liberty  of  the  subfcct  m  every  respect  thui 
the  UabeM  Corpus  Act  of  EngltMl/' 


B) 


fat  Murder* 


A.  D.  1752. 


[54 


WD  fbr  the  officer  eoniroa tiding  at 
kWiiiftm*  to  be  particularly  careful  to  in* 
id  prereiit  these  iiracticen,  by  denying 
tbe  pertous  by  wbate  means  ibey 
I  koOWB  io  be  cmriefl  on. 
^fi«i,  ti  Ibe  firisODrr's  complaiot  lias  been 
%mi  ^po  Mm  b««ttd,  t  inust  heg  leave  to  recal 

war  tlie  far 

4mm0mmut 

I  JoiUce 


pa  and  the  jury  to 
t  which  the  accet- 


,  .  'f  '^1  he  supplying 

Willi  moti  ȣe  him  to  fly 

:  Irt   it   l^  ;  Sored  in  what 

'I'CUted  i  Ihe  pri^ner  was  io- 
liicer  Gommandini?  the  party 
aimtli^i<i«d  biui,  to  spi^tik  >%uh  hh  m ife 
l«  Mora  b#  wa«  earrirU  ofT:  <he  use  he 
:  «f  tliai  indulgence,  wait  to  j^^ive  her  the 
|k«rf  of  tile  money  in  his  pockety  vi'itli 
1  t(i  send  it,  and  the  tiiorderer's 
itie  place  where  it  liad  been  con- 
i  h%  whmdd  wait  for  ihem. 
Tbt  lalol^«»ce  upon  the  part  of  the  ofTicer 
«M  a«lMv»l  Mil  bitinune;  from  the  circum- 
ittoorei  tiMl  were  then  kuowo,  there  \*&&  no 
rwMa  In  fttmuect  ihut  mjcU  use  would  have 
IvfMonds'^i  G<h1's  good  providence 

li  MlB.'C»i»e  fl  drcumstanee  in  the  io- 

teili[|AMi  ot  iktte  fcutirce  of  the  horrid  scene  of 
'mimmf  Mwr«  the  Cuurt. 

Nov,  ■•  ibi«  tkct  xa  adrnilted  to  he  true,  I 
ttOM  wmh$mt  wbat  fuundatinn  there  is  to  coin- 
filaii  ^  I  r  the  commanding- 

•fi^ir  I  such  indulj^tuceSf 

llogiv  uuin!vutr<i  .u:i;»^^?i  to  his  family  und  re- 
I?  Neterthrle*^,  I  am  well  authorised  lo 
f,  ibalf  al  Follow ilTiam,  the  prisoner  had 
hiiy  ftnd  KTemt  iudul^^ences  of  this  kind  ;  that 
lie  was  ailwwed  to  take  the  nir  in  the  |j;arrisao, 
aftd  lo  <iii«ftff*i»  with  his  friendfi  and  relations 
'  118  wii  cunhiHteut  with  the  safe 
f  if  bis  person,  and  the  iuipniies  which 
■  Cftrrying  on  hy  the  proper  officers ; 
btfiire  and  since  he  was  brought  to 
Miiipteet,  bb  Oi^nl  and  lawyers  have  had  ao* 
imkt  wiUi  him  as  often  as  applied  for  in  a 
'  wty*  He  wos  not  indeed  allowed  access 
»•  M  kii  servants  and  dependiintii,  Irom 
irboB  mterial  etideuce  wns  cxpnted,  with 
wksn  bt  bail  baeo  uttipcring^f  and  who  hud 
Mbrad,  l^brv  irere  over-awc<l  by  his  au- 
bul  m  tbil  I  apprehend  noVuulugy  is 

I  place.   Yr»ui-  lorrlshiits  hnve  heard 

I  frmm  t  r,  of  un- 

an«  il  I        .(luce  his 

*  I  v>  and  tu  prepossess  the 

»t  his  g:uilt»by  which  he 

b  aid  io  Lc,   m   m>uic  mcasurei  condemned 
Irfsta  be  m  brtiu^ht  tu  trinL 

l»ttsi  biy  MH  and  the  jury  to 

^■»4ec  lb**  of  I  he  prosrcuton 

wbt  iflw  iibii  }Mac:tices.     Has 

I  is  DO   relaiinn, 
*  a-  It  Ui is  corner  of  the 

1  in  prepossessint^ 
'  cii«attrjr  -  •-.  ^„  ..,  .i^j  of  the  prisoner*! 
Sf  nff  aft  hti  Cbihlr«o,  as  yet  uucapable 


Af  speech,  fit  to  assist  her  in  traducitigf  bis  cha« 
racter? 

If  the  relations  of  the  deceased  had  attempt- 
ed! it  without  foundation,  they  would  haV9 
Ifained  no  credit  with  the  impartial  world  ;  or 
would  have  been  counterbalanced  by  the  nu- 
merous relations  of  the  prisoner,  at  least  m  this 
country.  Nerertbcless,  ray  lords,  J  will  atlmjt 
thai  he  labours  under  great  disadrantag^es  upon 
thi2i  head;  a  general  opinion  of  his  t^uilt  hua 
prevailed  ;  ait<l  I  am  sorry  to  say^  that  he  haa 
many  and  siroog^  adversaries,  who  have  beei^ 
busy  to  establish  it.  *^  Mag^na  est  Veritas,  ct 
pr<cvalebit."  The  horror  of  the  crime  witli 
nhtch  he  is  charged,  has  raised  the  attention  of 
every  impartial  person,  and  made  them  tn« 
dustrious  to  discover  the  authors  of  it. 

The  blood  of  the  innocent  has  called  aloud  to 
heaven  for  justice;  and»  by  a  remarkable  con- 
currence of  many  circumstances,  hrout^ht  t(» 
light  by  the  decls  rat  ions  of  a  cloud  of  u  iinesses^ 
the  prisoner  is  clearly  pointed  out,  not  indeed 
as  the  executioner,  but  the  contriver  of  tha 
murder^  and  the  aiJer  and  abettor  of  the  mur- 
derer. 

I  will  not  say,  that  his  character  iu  private 
hfe  concurs  against  him  ;  1  have  no  auihoniy 
from  my  employers  to  assert  it  j  nor  will  1  as- 
sert what  is  not  supported  by  evidence^  But  C 
must  say,  that  his  family  and  connections,  bis 
character  and  conduct  lu  public  life,  are  so 
many  circumstances  forming  a  presumption  al- 
iDOht  et|ual  to  a  proof,  in  support  of  the  charge 
bruught  agiiinsl  him.  These  are  the  mosi 
powerful  adversaries  he  has  to  struggle  wiih, 
and  from  them  that  general  opinion  of  bis  guilt 
has  taken  its  rise,  which  is  unjusUy  ascribed  to 
the  prosecutors. 

What  haii  been  said,  my  lords,  would  natu- 
rally lead  me,  in  the  (text  place,  to  lay  open,  tu 
the  consideration  of  the  Court,  the  particular 
circumstances  set  forth  in  ihe>tibel,  fnm  whicb 
the  prisnner^s  guilt  is  inferred ;  and  to  Inke  no* 
tice  of  what  has  be^n  said  in  his  defence  upon 
that  head ;  but  in  this  1  have  been  well  pre- 
vented  by  the  gentleman  who  s|M)ke  last;  and 
therefore  I  shall  ouly  beg  leave  to  add  a  few 
observations  to  what  has  been  said  by  him. 

The  Court  has  been  informal  that  Ulr. 
Campbe'l  of  Gl enure  was  appointed  factor  on 
the  forfeited  estate  of  Ardshiel;  that  the  pri* 
soner  is  natural  brotlier  to  the  forfeiting  persnn, 
in  whose  absence  he  fell  lo  have  the  leading  of  ^ 
his  dependents,  and  the  protection  of  hi*  ' 
family:  under  that  character,  as  he  had  an 
interest,  lo  be  had  opportunities  of  npjKMiti^ 
tbe  factor  in  the  execution  of  his  office:  that 
this  opposition  grew  by  degrees  to  the  height 
of  premediroted  malice,  which  rood  after  broke 
out  in  repeated  threatening,  and  at  last  eaded 
in  assa>i«i tuition  and  murder. 

On  the  uther  hand,  the  counsel  for  the  pri- 
soner have  iisserled,  that  there  was  no  enmity 
or  malice  between  Cjlenure  and  hira  \  but  con- 
trary-wise, a  conlidence  and  friendship^  whicli 
they  offer  to  support  by  letters  written  by  Gle* 
DUrV  to  bito.    ^ow,  aa  ibia  mtiit  ap^aaf  la  km 


S5] 


25  GEORGE  II. 


Trial  of  James  Siemrt, 


[56 


incoDtiitent  with  Ibe  charge  io  the  libel,  I  muftt 
beff  le&ve,  in  a  few  words,  to  reconcile  them. 

When  Glenure  was  appointed  faelor  on  the 
•state  ofArdshiel,  he  was  so  far  from  shewing^ 
80  J  disposition  to  be  ser ere  upon  the  tenants, 
or  10  put  hardships  on  the  family  and  fiiends  «f 
the  forfeiting  person,  that  he  treated  them  with 
the  utmost  humanity :  and  the  prisoner  in  par- 
ticular had  the  address  to  insinuate  himself  so 
fsr  into  bis  confidence,  as  to  be  employed  in 
eollectiDg  the  rents,  and  advised  with  in  the 
lettingr  of  the  farms ;  and,  during'  this  period, 
the  leltera  referred  to  were  written.  But  as 
the  prisoner  undoubtedly  took  advantage  of  this 
conndence,  to  bring  tenants  into  the  estate  that 
were  entirely  under  his  influence,  and  to  make 
separate  agreements  with  them  in  favoorof  the 
forfeited  person  and  his  family,  in  defraud  of 
his  majesty  and  the  public ;  the  barons  of  ex- 
chequer justly  took  exception  against  this  part 
of  Glenure's  conduct;  and,  to  prevent  such 
abuses  for  the  future,  gave  him  particular  in- 
structions in  writing,  to  remove  the  prisoner 
from  a  beneficial  farm  which  he  possessed,  and 
also  any  other  of  the  tenants  wlio  were  con- 
nected with,  or  under  the  influence  of,  the  for- 
feiting person  and  his  family. 

These  instructions  were  executed  in  part  at 
Whitsundav  1751,  ^by  the  removal  of  the  pri- 
soner from  his  farm  ;  but  as  he  easily  procured 
another  in  the  neighbourhood,  and  retained  his 
influence  over  the  estate  by  the  means  of  the 
tenants  he  had  placed  there,  he  discovered  no 
resentment  at  that  time. 

But  so  soon  as  the  factor,  in  the  further  exe- 
cution of  his  instructions,  began  to  take  the 
proper  measures  for  removing,  st  Whitsunday 
1753,  some  of  these  tenants,  he  then  took  the 
alarm  :  that  was  to  pluck  up  his  interest  by 
the  root,  and  entirely  to  put  an  end  to  his  influ- 
ence. He  therefore  made  the  cause  of  the 
tenants  his  own,  and  every  method  of  opposi- 
twn  was  tried  to  prevent  their  removsl. 

fle  no  longer  affected  any  intimacy  or  friend- 
ship with  Glenure,  but  took  every  occasion  to 
raise  discontent  and  jealousies  sgainst  him,  and 
represent  him  as  an  oppressor  in  the  country. 
At  last,  without  any  authority  from  the  tenants 
who  were  to  be  removed,  he  took  s  jonmey  to 
Edinburgh,  on  his  own  expence,  and  applied, 
by  a  bill  of  suspension,  to  tne  court  of  session 
in  their  names ;  in  which  the  factor's  conduct 
vas  set  forth  in  such  false  and  odious  colours, 
as  procured  a  sist  or  stop  of  execution  of  the 
decree  of  removing,  pronounced  by  the  sheriff, 
at  the  factor's  suit ;  and,  by  the  same  fsisc 
suggestifins,  he  so  far  im|iosed  upon  such  of  the 
barous,  as  were  then  in  town,  ss  to  make  them 
listen  to  his  complaints  a^^atost  Glenure. 

When  Glenure  was  informed  of  all  this,  he 
vent  directly  to  Edinburgh  by  grestjouniies; 
and,  09  soon  as  he  had  an  opportunity  of  being 
heard,  he  obtained  a  removal  of  the  sist  from 
the  court  of  session  ;  and  satisfied  the  barons, 
that  be  had  conductcMl  himself  entirely  by  their 
Mstrudions.  And,  having  bee^  only  two  davs 
kk  towDi  he  munad  with  ipeditinn  Io  the 


country^   Whitsunday    being  then  near   at 
hand. 

This  scheme  beinj;  frustrated  by  the  dili- 
gence and  activity  of  the  factor,  measures  of  a 
differeut  nature  became  necessary. 

Tlie  prisoner  had  no  hopes  of^  being  able  to 
keep  up  his  influence  and  interest  in  the  estate^ 
while  Glenure  continued  to  have  the  manage- 
ment of  it ;  and  if  he  should  be  sble  to  get  the 
better  of  him,  he  had  reason  to  think  no  other 
would  be  so  hardy  as  to  undertake  it  It  was 
therefore  resolved  to  take  him  ofi*,  and  that  be- 
fore he  should  remove  the  tenants. 

For  the  execution  of  his  scheme,  a  very  proper 
assistant  was  at  hand  ;  Allan  Breck  Stewart,  a 
person  in  desperats  circumstances,  who  had  al- 
ready forfeited  hb  life  to  the  laws,  and  enlisted 
himself  an  enemy  to  the  liberties  of  his  coun- 
try ;  a  dependant  of  the  family  of  Ardshiel  ; 
brought  up  from  his  infancy  under  the  earn 
and  authority  of  the  prisoner. 

With  this  assistance,  no  method  waslefk  nn- 
attempted  to  stir  up  the  populace,  or  some  of 
the  hardiest  among  them,  to  cut  off  Glenure 
by  violence.  Their  attachment  to  their  chief 
was  made  use  of  for  that  purpose.  The  pre- 
servation of  his  family,  tlie  welfare  of  their 
country,  and  even  the  very  being  of  the  clan^ 
were  represented  as  inconsistent  with  allowing 
Glenure  to  live.  Reproaches  were  used  to  some, 
rewards  offered  to  others,  and  strong  insinu- 
ations made  by  the  prisoner  to  his  own  do^ 
mestic  senrants :  but  all  this  had  not  the  de- 
sired   flfect. 

Wherefore,  on  Monday  the  lllh  of  Maj^ 
Allan  Breck,  who  had  no  other  occupation  hut 
wandering  from  house  to  house  amongst  hia 
friends,  and  was  thereby  well  able  to  trace  all 
Glenure's  motions,  came  to  the  prisoner's 
house,  when  the  resolution  appears  to  have  been 
taken,  that  Allan  himself  should  set  out  early 
next  morning  to  way- lay  Glenure,  and  take 
the  first  opportunity  to  perpetrate  the  murder. 

This  was  no  difficuh  task  to  one  who  knemr 
the  country.  There  were  but  three  days  to 
run  to  the  term  for  the  removing.  In  that 
period,  it  was  known  that  Glenure  was  to  go 
from  his  own  house,  to  the  slierifTs  court  at 
Fort- William,,  and  return  to  the  lands  from 
whence  the  tepants  were  to  be  removed.  The 
nature  of  the  country,  and  the  several  ferries 
which  he  could  not  avoid,  made  it  certain  what 
road  he  must  take ;  and  a  wood  near  the  lands 
afforded  a  proper  place  for  the  bloody  deed. 
But  Allan's  dress,  being  the  French  uniform, 
was  too  remarkable  for  an  executioner  of  the 
works  of  darkness ;  he  was  therefore  supplied 
with  another,  of  the  ususi  colour  and  fashion  of 
the  country,  by  the  prinoner.  The  Court  baa 
heard  how  be  theu  took  his  station  at  a  place 
within  sight  of  Gtenure's  house,  till  he  aavr 
him  set  out  for  Fort-William,  and  then  how  he 
retired  towards  a  ferr^ ,  where  it  Was  known 
Glenure  must  pass  in  his  return. 

In  the  mean  time,  tnesaenger  after  mcwon 
ger  u  sent  to  Fort  William  by  the  prisoocr,  to 
get  nora  pertieelar  ieHlHgiHB  of  Ofenure^ 


On  Itic  nif  III  of  lite  13th,  Alltn  cmnit 
tt  1  ptoM  Mij>pem  to  tbe  ferry,  >nd  retiretl  in 
fl#  mtOMf^  kttim  %h0  ifood/trom  which  li« 
Mlf  mmm  aim  U  irmpiirB  if  Glenure  vrsk%  pftil. 
very  litne  ft  l^uui  tielonf(in;|^  to  th« 
r*t  »*fni»«tttig ;  and«  in  ilic  tv«niDgi 
'  WM»  fthul  lu  ihe  wriod. 
itkehcM-rtu  '  '  uunfer  threw  All  the 
lioi'  M  addconsternution^ 

^  Mr|Hi9e  •ppenrT'ii  (i|i^Mi  ih«  imsoDPf,  or  in 
InltiBiJjf.  Their  titention  Wft&enlirf^ly  Hxer] 
i|Hn  iIm  cn^uiiofi  of  the  tufSASures  iliat  had 
ItOi  awitijleil  for  ficihi«lifif  the  Riorderfr'a 
«Gm:  fhrilMi  pnrfios^,  •  mciftrncer  was  dts- 
|MMil  Ml  pimr«  money :  upon  the  return  of 
■ngsr  (ibough  Ihe  privooer  w»s  then 
jF>  ib«  mot»ey  he  bn»ui^hii  with  w^hat 
iniMmer  could  afFoi'df  and  also  the 
mkm^  were,  by  the  priisoner*8  dircc- 
llnft,  Ctfliti  10  a  refiiot«  place  in  the  mouniaiiii, 
vlum  ANftA  fir»ek  had  fur  tome  lime  vvaited 
leTtbein.  At  the  aarue  lime  the 
m^  which  bad  been  coooealed 
mmf  km  fce«M|  iv«»re  di<$cof  ered ;  ftiid  ihe  vefy 
gm,  wftsdl  bad  been  missiitj^  on  the  day  of  the 
— riiff,  wmM  foQod  nmnngst  ibeni)  with  mch 
«Kl»iaihvir«4  itiat  it  hid  beeu  tately  dt^ 

Tiuii,  tmy  larda,  aa  I  had  oeca«iion  to  men* 
iMi  •8«Mi  ^th«  facts  to  be  proved,  1  could  not 
ifcorlly  toOQirig  over  the  wUote,  in  oitler 
ibvi«  m  oCk«  View  before  y<»ur  lordihips 
Itb«>itf3r. 

Am,  fiwm  lht«  rtew^  f  apprehend  it  wiU  now 
MMfi  l«i«,/rbit  the  friernJiihip  inetilioned  by 
In  oinifl  fbr  the  priNifieri  duet  not  derogate 
flN«itbenr<filMibtlity  of  bii  guilt  U  is  a  na* 
I,  «M  rrcn  m  neceaaary  link  of  the  chain 
mUeli  III*  whole  depends. 

It  mirat  occtir  to  every  one  i»ho  bean 
l^fiida,  til  at  tliim|fh  it  is  poanble,  btnely 
"^  »y  Ikal  Mrreral  of  ihent  might  hife  btp- 
•bvia^a  lb«  pn^on^r  had  been  ioiiocefit 
«fll»cri»r  that  lA  charged  upon  him*,  yet  it 
I  to  coaceirep  that  Bucb  a  lung  aerieit 
inecs,  ootin«eted  and  cortvapondtng 
•iii  9m9  enolb^r,  all  omeiirf kig  to  answer  the 
«a»  tail  ibaald  be  the  hum  fleet  of  chance, 
mi  wm  thm  coQ»e<|uei»ee  of  intention  and  de- 

TV  take  no  ln«tanre,  it  is  vefy  eniy  to  be- 
Wvt^UMl  llleii  Brtck  mi|^ht  haf  e  cha'ngfeil  hia 
Mbea«  tbofiffii  be  hftd  not  intended  to  murder 
1 1  iM  thai  he  mi^bt  have  lodged  for 
•Irble  i^ier  Cllenare*«  house,  though  he 
Ml  Me»ileil  to  lie  in  wait  for  hia  Itff  ;  but 
I  wm  ftwl  Cbt  aeme  Adio  Breck  himseK' 
J  U  marder  Olmiilt,  ^iMl  tnatigaiing 
Hkm  10  do  H;  a(tertfi/di  ebengitig  hit 
AriMB,  ly^  in  ^^f^il  »f  timet  and  in 

«oai  finnts^  afi|»caniiL'  v  lontly  ini|mr* 

^Iktl31^«f*iienrihe  ltiii4:<  Hud  place  ol  the 
•niiii,  mi4  m  toon  ct  h  wm  cominiti«d,  fly- 
%  wiHi  irvmrnMl  fitvdfltMtMi,  who  can  doiibt 
iit  be  wtfl  tbe  iBttni^cr  f 
^  b  tbe  Miitt  iMttinir  ll  in^bi  w«ll  tufimed, 
'  Bil|piil  hvif%  wot  Albiii  BifBCs 


n  ttiit  of  clotbei,  or  given  Him  enterlainraent  in 
his  hotivPp  ihrvugh  he  had  not  instigated  him  tHi 
ciHnmit  the  murder.  But  il"  it  it  com\dertd, J 
thnt  ^llan  Bf^ek  had  no  quarrel  nilli  Glenttrt^i 
other  than  what  he  was  engaged  in  by  the  iihI 
lldi'QCe  and  authority  uf  the  prisoner  |  that  I 
carried  tJie  resentment^  on  the  prisoupr'a  ao 
count,  to  such  a  height  ai  to  threaten  to  fthooij 
ff1enuFP«  and  joined  the  prisoner  in  prompliud 
others  lo  do  it  ;  that  whon  Gleiuire  returne 
imexpecteElly  from  Kdiiibtii^h,  Allan  Bn 
went  imtnedialely  with  the  intelligence  to  th 
prisoner ;  ihnt  when  he  set  out  to  lie  iu  waU 
for  Gtennre,  it  was  af\er  a  consuttalion  wilUt 
and  being  nccontvcd  for  that  purpose  by,  i 
prt^ner ;  that  the  o^un  with  which  he  shU 
Glenure,  appean  lo  nute  been  the  property  \ 
ihe  prisoner  ;  that,  after  the  murder  wat  core 
milled,  the  munlerer  relied  for  money  an 
clulhes  for  his  eacape,  and  aciuully  if  id  receivi 
them  from  ihe  prisonei  ;  I  say,  let  all  lhc»* 
concurring  circumstances  be  bid  together,  i 
who  will  doubt  that  he  ^aa  instigated,  aidedj 
and  ahelled  by  the  prisoner  ? 

It  is  therefore  in  vain  to  nrge»  ihat  otie 
more  of  tht^e  facts,  when  tnken  separately,  an 
not  relevaiu  to  infer  the  conclusion  of  his  gutlt«j 
It  is  iVom  the  connexion  and  concurrence  e 
the  whole^  that  the  connction  of  his  guilt  doe 
arise :  and  il  is  only  from  a  proof  of  tbe  whole 
that  the  pro^cutor&  expect  a  judgiDent  agarnd 
him. 

In  the  last  place,  the  counsel  for  the  pHitone 
have  urgnl  a  point  of  law  in  his  defiance,  wit 
Til ul  aupjiosing  the  facts  which  have  been  sel 
forth,  10  be  relevant  to  infer  his  gintf ;  ta  he  T 
only  charged  as  an  accetsary,  lie  cannot 
brought  to  trial  fur  ihe  crime,  until  the  princ 
pal  be  first  convicted.  In  s«upp<>rtjng  df  I"  " 
texis  have  iH'en  quoted  from  Ihe  old  law-l>ook^ 
Uuoniam  Attachiamenia  and  Regiam  Mnjesta* 
trm.  h  has  been  said  thai  ibis  tn  ihe  law  of 
Engtnnd  at  this  day,  and  Ihat  sir  George  Mac- 
kefiiie^  in  his  Treatise  of  Crimes,  boa  laid  il 
down  to  be  the  lew  of  this  country. 

As  the  word  *  ■eeetsarj '  i«  a  relative,  whirl 
cannot  be  witlieut  a  principal  to  iwhich  it  re' 
Idles  i  it  m**st  be  admitted^  Ibat  no  evidenC 
will  be  sufficient  to  convict  an  accessary «  whrcb  ' 
does  not  prove  that  ihe  crime  was  com  milted 
by  the  principal,  who  is  thereby  convicted,  10 
Ihe  eHect  that  justice  may  bv  executed  againfl 
the  accessary. 

In  this  tense  the  maxim  isjuMt;  but  in  the 
tense  in  which  it  is  pleaded  for  the  prisoner,  I 
will  lake  upon  me  lo  say,  it  is  not  supported  hy 
Ihe  1ft w  of  this  country  ;  it  is  inconsistent  with 
Ihe  orinctptet  of  public  policy,  and  anbvereive 
of  all  civil  tociety. 

It  is  inde^Kl  a  majtiro,  and  a  good  one,  m  the 
law  of  Scotland,  that  no  person  can  be  con- 
demned, til  as  to  suffer  the  punisliment  ap^ 
pointed  by  law  for  an>  crime,  unless  be  be  pre* 
dent  in  court,  and  have  opportunity  to  ohjuct  la 
the  evidence  by  which  it  is  to  be  proved  ftgemtd 
him.  But  in  ili<^  t»re»eot  case,  it  f^  nol  AUr^ea^ 
that  AUttu    Dreck  cotiltl  be  condeowietl,  ett4 


59] 


25  GEORGE  II. 


Trial  ofJanut  Stemart, 


[60 


brooght  to  justice,  upon  the  evidence  that  is  to 
be  brouffht  in  tiis  absence  against  the  prisoner. 
If  he  shall  atkrwards  appear,  and  stand  his 
trial,  the  proof,  in  so  far  as  it  relates  to  hitn, 
must  again  be  repeated  in  his  presence,  and  it 
will  be  com|>etent  to  him  to  object  to  e?ery  part 
of  it.  But  at  present,  as  the  evidence  is 
broug^ht  only  to  the  effect  that  the  prisoner 
inay  be  punished,  it  is  he  only  that  can  plead 
the  benefit  of  this  maxim  ;  and  it  is  competent 
to  him  to  object,  as  well  to  that  part  of  the  evi- 
dence which  fixes  the  crime  upon  the  principal, 
as  to  that  which  proves  his  accession. 

As  to  the  law  of  England,  1  will  not  take 
upon  me  to  ai^gue  from  it ;  1  do  not  pretend  to 
be  versaut  in  it ;  nor  do  1  apprehend  it  will  be 
decisive  in  this  case.  Nevertheless  I  have 
reason  to  believe,  that  it  is  the  practice  in  that 
part  of  the  kingdom  to  proceed  to  the  trial  of 
the  accessary,  after  the  outlawry  of  the  prin- 
cipal ;  from  which  I  would  infer,  that,  in  our 
practice,  either  the  fugitatiun  has  the  effect  of 
the  outlawry,  or  there  is  no  argument  to  be 
drawn  from  the  one  law  to  the  other. 

With  regard  to  the  old  law-books  mentioned, 
it  is  well  known  to  your  lordships,  that  they 
are  generally  believed  to  have  heed  transcribed 
from  the  laws  of  Eosland,  at  a  time,  indeed, 
when  many  salutary  iterations  are  thought  to 
have  been  introduced  into  our  practice  from 
thence;  but  that  it  is  by  no  means  admitted, 
that  they  were  ever  ingrossed  into  the  body  of 
our  laws,  or  that  every  part  of  them  has  been 
confirmed  by  our  practice ;  many  instances  of 
the  contrary  might  be  mentioned.  But  I  for- 
bear to  consume  the  time  of  the  Court  upon 
this  question,  because  the  only  ground  1  can 
find  to  suspect,  that  it  ever  was  held  to  be  a 
donbtin  our  practice,  is  the  153  act,  18  pari. 
Ja.  6,  which  appears  to  have  been  made  with  a 
view  to  take  away  all  doubt  for  the  future. 
The  words  of  this  sUtuteare,  "  That  in  all  time 
cumming,  all  criminal  libelessall  conteine,  that 
persones  compleined  on  are  airt  and  pairt  of  the 
crimes  libelled;  quhilksall  be  relevant  to  ac- 
cuse them  thereof;  swa  that  ua  exception  or 
objection  take  awaie  that  part  of  the  libel  1  in 
time  cumming."  Which,  m  more  modern  lan- 
guage, imports,  that,  fur  the  future,  no  ob- 
jection bhall  be  sustained  against  a  libel,  which 
charges  the  person  accused  of  being  contriver, 
adviser,  aiding,  abetting  or  assisting,  in  a 
crime  that  is  otherwise  relevant. 

And  sir  Geo.  Mackenzie,  in  that  very  pas- 
sage of  his  Treatise  on  Crimes,  which  has  been 
quoted  in  behalf  of  the  prisoner,  though  he 
lays  down  the  arguments  which  have  been 
suggested  on  lioth  sides  by  the  authors  who 
have  treated  this  question,  he  concludes  with 
observing,  that,  in  Robertson's  case,  the  Court 
found  upon  this  act,  that  an  accomplice  might 
be  tried,  though  the  principal  bad  not  been  con- 
Ticted  nor  fugitated. 

Upon  these  principles,  the  practice  has  been 
uniform  for  many  years  ;  and  the  present  cir- 
canatances  of  the  case  do  not  seem  to  afford 
•oyreuootoderiitcfronit,    For  your  kNrd- 


ships  and  the  jury  must  be  convinced,  from 
the  facts  which  have  been  opened,  that  as  the 
murder  was  committed  with  the  advice,  and  at 
the  instigation  of  the  prisoner;  so,  but  for  hii| 
aiding,  abetting  and  assisting,  the  murderer 
had  been  now  also  prisoner  at  your  bar. 

Lord  Advocate  (right  hon.  W.  Grant) : 

BIy  Lord  Justice  General ;  I  stand  up  at 
this  time,  to  support  the  reply  that  hath  beca 
made  by  the  learned  and  ingenious  jfeotlemeii 
on  the  same  side  with  me,  to  the  defences  thai 
have  been  offered  for  tliis  pannel ;  but  as  it 
hath  not  been  frequently  practised  by  mjr  pre* 
decessors  in  office  to  attend  in  person  atdrcuif 
courts  of  justiciary,  I  beg  leave,  first  of  all,  to* 
say  a  few  words  for  myself,  to  give  the  reason 
of  my  being  now  here :  and  I  am  persuaded 
that  every  one  who  now  hears  me,  will  believo 
me,  when  I  declare,  that,  negatively,  that  hath 
not  proceeded  from  any  particular  animosity 
against  this  unhappy  man  m  the  pannel,  whoa 
1  never  saw  until  this  day  when  he  appeared 
there ;  neither  is  it  singly  because  it  is  a  horrid 
and  atrocious  murder  that  is  to  be  now  tried ; 
or  that  the  trial  is  to  proceed  upon  indirect  and 
circumstantial  evidence,  because  such  cases 
have  oflen  occurred.  But  the  trutli  is,  that 
upon  my  first  hearing  of  tiiis  murder,  in  the 
month  of  May  last,  of  a  gentleman  of  tbi» 
country,  the  king's  factor  upon  certaui  of  the 
forfeited  estates  that  had  been  but  a  few  weeks 
before  annexed  to  the  crown  unalienable,  and. 
the  produce  of  them  approoriated  by  law  to 
the  most  salutary  and  beneficiai  purposes,  for 
the  future  tranquillity  of  the  united  kingdom  in 
ll^eneral,  and  for  the  immediate  advantage  and 
improvement  of  these  highland  parts  of  Sootp 
land  in  particular ;  1  was  greatly  shocked,  and 
considered  the  murderers,  whoever  tliey  were, 
as  having  been  guilty  not  only  of  a  most  horrid 
crime  against  the  laws  of  God  and  huoianity, 
but,  together  with  this,  of  a  most  audacious  in- 
sult against  the  most  gracious  and  beneficent 
acts  of  the  king's  government,  and  of  ths 
whole  legislature ;  and,  as  far  as  in  them  lay, 
had  endeavoured  to  make  the  world  or  the 

Kublic  believe,  that  the  civilizing  of  the  High- 
inds  of  Scotland  was  a  vain  and  impracticablo 
attempt ;  and  under  this  impression,  I  then  re-, 
solved,  whenever  a  discovery  should  be  made 
of  any  persons  concerned  iu  this  wickedness^ 
to  attend  at  the  trial  where-ever  it  should  be, 
and  to  do  all  that  in  me  lay,  consistently  with 
law  and  justice,  to  convince  the  disaffected  part 
of  the  Uiffhlands  of  Scotland,  that  they  matt 
submit  to  this  government,  which  thev  have  se- 
veral times  in  vain  endeavoured  to  subvert.  ^ 
And  now,  as  to  this  trial  itself,  your  lordshipn 
have  heard  the  libel  read,  and  sooie  |>arta  of 
the  evidence  which  we  expect  to  bring  in  rap- 
port of  it,  more  particularly  opened  by  tM 
gentlemen  who  opoke  of  the  same  side  witb 
me ;  and  none  of  these  things  shall  1  now  r^ 
peat ;  but  only  make  a  few  observations  apoa 
what  hath  been  offered  by  tlie  oomiMl  for  itm 
paooel  by  way  of  defcnoe. 


3         ^^^^^^^      fof  MnrJcr, 

iodt  ^(i^  «^  A^»  io  c"^']^  to  lay  <^tit  of  the 
phut  is  ffyreigD  to  tht?  in^ribi  nf  the  trttil, 
eoiMi^«>|  Unvv  ^♦'♦^n  pleased  !u  take 
iJ(  ^  *  grieFnncpi,  tbal 

V.  -  CO  nth  lenient  in 

I  ivrT- II  iiHun  ;   n[iij   Ihai,  by 
of  the   private  pro^ciitoi',  n^U 

"^^  ^  ' *  't^TC  been  retained 

imag   I  ance.     As  to  tbe 

•Cwbu.^  -  I  ^. -^^:i  gfievancL'Sf  J  aoi 
jammmt  of  the  pftrticuf«r  facts   apon 
tiM  rnmMiint  is  founded  ;  but  if  it  be 
tin:  1  wa»  binj^er  kept  in  cloie 

■ivi  fhoald  have  been»  or  until 
qM|nk*iaiiti«^  officer  was  informed  bow  the 
kw  gnind.  tlie  ptuti«<l  cao  be  under  no  real 
AsAdvmniaire  ou  llmt  occiuint  iu  bla  presfiit 
truit;  livcamfr  be  was  tirs,!  taken  into  custody 
wmtS^^Kf^j  the  Itith  of  May,  that  is,  about 
aeo:  nod  KiippoMing  it  true,  that 
Iiyt  of  so  long  a  pt^riod^  peo[de 
tobim  %vhom  be  liud  a  mind  to 
It  htki  full  time,  wticu  all  these  are 
10  mdkt  the  neeetsary  provisioo  for 


^  Vomt  tlm  and  oilier  pafisa^f^  respecting; 
biiMii|it»  •I'ltbich  ct»mpt.imt  was  made  in  this 
mt^  tbc  J^llotvin]^  remarkii  are  made  in  the 
it  t"  I     "tt   of  James  Stewart  r 

the  I''  -standing  this  matter,  it 

litre  lu  insert  a  clause  or  two  of 
ad  uf  purliament''  [the  act  ag^ainst 
iiiifiri»oiiint;ni,  xee  p.  59],  "oeing 
pi  inm  8th  and  9tli  sessions  of  king 
*  justly   f^^-'*   ihe  palladium  of 
fa   1^  le  of  which  it  is 

Tliat  OUT  -^u.^...^.;  lord,  considering* 
II  laili^  murrt%t  of  all  bh  good  subjects,  that 
*1bifib«^tv  of  ilteir  persons  be  dul)^  secured  * 
*Miik7  tret)  by  the  Claim  of  Ftij^ht, 

*ta.ili'  itnent  of  persons^  without  ex- 

'  pRflB^  tb«  reA»on!b  thereof,  and  delayinsf  to 
'M Ifccni  tp  trial,  \n  contrary  to  law  '  there- 
'  wtiyt«i;^|e«iy,  with  advice  and  consent  of 
*  lWflmM«i^pftriiaiiient,  itatutes,  enacts,  and 
'pJMji,  ^~  '^  >  shall  sign  their 

*HAvm^i  ^r»on  shall  here- 

'lUitW  tittpri»un».t]  lur  rusiody,  in  Order  to 
*l^  Ht  99 f  crime  or  offence,  without  a  wa r- 
*fMiBwrit«  cspmaiiig  the  particular  cause 
'i*  vliiclt  be  IS  Impmoiied :  and  of  which 


A.  D.  11B2. 


[69 


As  !br  the  other  alleged  grieTtnce,  I  myself 
know  certainly  the  foundation  of  that ;  and  so 
far  is  true,  ihitt  after  i  bad  es|>ected,  for  ^oiiie 
time,  to  receive  from  the  sheriff-depute  of  thia 


*  wnof  tb«  iniw*iiger|  or  executor  thereof, 

*  MlKe  ifPfifiwiPipetit,  or  the  keeper  of  the  pn- 
'ht)  rrottfiiiii  tbeaame,  is  hereny  onlarned  to 

uM  doablir  iffittiedialclv  under  hi^  hand 
'  bimtelf.  for  nif*  end  after  »pe* 
i  by  the  pri- 
ir\Aiy  when  it 
t[it  c.jd  of  this  act— 
f^  all  close   imprison- 

''       \    ■'■'     '  ';  ^Mfl 

'MS 

i,T    ,u-..ll     ..    .    |,rU>e 

/.  thatftt  tti»>  2t.l 

iSpd,  *  Act  fur  the 

id  fauiibimnl  of  Ui'^U 


f 

lB»i^f  i^r  at  hN 

'Ia4f. 

*lb»eMMiilii»tnt^ 
*lHtorittiiiiin-t  ' 

Firvf  ki«f 
'^■vcfiKtt 


*  Treason  and  Misprision  of  High  Treason  fn 

*  the  Hie  blonds  of  Scotland,  ic. — And  it  is 
'  berifby  farther  enacted,  That  the  seveml  furls 

*  erected,  or  hereaiWr  to  be  erected  by  bis  ma- 

*  jesly,  his  heirs  or  successors,  within  tbe  said 

*  %hires  of  Dumbarton,  Stirling,  Perth,  luver* 

*  ness,  Argyle,  Slc,  or  any  ot  tbeno,  sbtill  be^ 

*  and  they  are  hereby  declared  to  be  lawful 

*  piisoti^,  for  (be  commitment  and  aafe  custody 
^  uf  oflenders ;  and  the  seTeral  and  respective 
»  officers  commouding  for  the  time  being,  in 

*  any  such  fort  or  forts,  are  hereby  impowered 

*  and  required  to  obry  and  execute  all   legal 

*  firders  and  warrants  that  shall  be  to  them  di- 

*  reeled,  for  tbe  receiving  and  detaining,  or  re- 

*  Uasingand  liberaliog  any  pciKon  or  persons 

*  committed  to  their  charge  or  custody  by  the 
'  ctril  magistrate.*  Which  laws,  as  they  are 
snpposed  to  be  known  to  every  snbject,  so  are 
they  more  especially  to  the  governors  of  forts 
and  keepers  of  prisons  ;  who,  if  they  transgress 
the  law,  are  to  be  reckoner]  oppressors,  and  are 
punishable  accordingly.  To  say,  that  military 
men  are  to  be  excused,  as  being  ignorant  of 
the  law,  is  no  better  than  to  make  a  joke  of 
liberty,  and  laugh  at  the  oppressed.  But  ig- 
norance of  the  law  is  tbe  plea  ;  and,  thank 
God,  they  dare  not  as  yet  avow  any  other;  a 
plea  which  may  aa  well  be  urged  by  the  per^ 
petraCors  of  tbe  greatest  uf  crimes ;  and  I  do 
not  bold  him  as  guilty  of  the  least,  who  shakes 
the  foundation  uf  pu!"lic  liberty,  by  removing, 
though  far  an  instant,  the  corner-stone  upon 
whicn  it  rests,  Ilow  far  that  was  done  here, 
will  appear  from  the  trial. 

*'  The  true  slate  of  the  case,  as  to  the  taking 
up  and  detaining  James  Stewart  in  prison,  is 
as  follows: — Glenurc  having  been  murdered 
on  tbe  14tb  of  May,  James  Stewart  and  bis 
eldest  son  Allan  were  made  prisoners  on  the^ 
16th  in  tbe  afternoon,  by  a  party  of  soldiers,* 
and  carried  next  day  to  Fort-William  ;  where 
they  were  imprisoned,  without  any  signed  in- 
fortnation  against  them,  or  warrant  for  so  do- 
ing; tbour^h  the  law,  as  just  now  shewn,  most 
expres!<>ly  directs  both.  It  is  irue*  there  ap- 
peared afier wards,  viz.  July  6,  a  warrant 
signed  by  the  Lord  Justice-Cferk,  and  dated  at 
Kdinburgh,  May  17.  But  as  Edinburgh  is 
three  days  journey,  or  88  computed  mile^» 
from  ForVVVIHiam,  it  can  never  be  pretended« 
that  (he  imprisonment  could  have  been  mad^ 
in  virtue  of  this  warrant  From  the  17th  of 
May  to  the  <Zist  of  August,  Juroe*  Stewart  wa« 
kept  in  close  confrneinent  (as  to  admittance  ta 
others  to  !iC€  binOt  excepting  once,  towardm 
Ihe  end  of  June,  when  a  tetter  of  dirvctions  to 
his  wife,  with  the  lorenaiil  act  of  parliament 
ugainKt  wroiiw^us  imprisonment,  were  shewn 
M  roldut'l  t.iawfnn^  the  then  commanding^ 
oiriter  ui  Fort-Wilham  ;  who  tbtrcupon  al- 
tuvTcd  Mrf.l&^evi'9tH  and  hrr  two  tittcrv,  to  i«r 


63] 


25  GEORGE  II. 


Trial  qfJamet  Stewart, 


r&i 


county  the  result  of  hU  inquiries  concerning' 
the  munler  of  Gleniire,  and  the  examinations 
be  had  taken  on  that  subject ;  these  were,  at 
leoi^th,  broti|;rbt  to  aie  at  Kdinburgb  by  cei:tain 

the  prisoner;  but  refused  admittance  to  every 
male  friend,  or  pcnM>n  capable  of  advising  and 
assisting  him  iu  bringing  on  his  trial.  At  the 
same  time  the  prisoner  sent  one  to  Barcaldine, 
Glenure's  eldest  brother,  to  demand  a  copy  of 
the  warrant  for  bis  imprisonment ;  and  received 
for  answer,  that  he  mi(>ht  get  it  from  the  jailor 
of  Fortt William.  All  this  I  have  seen  in  a 
letter  under  James  Stewart's  hand,  dated  June 
25.  Agreeable  to  the  directions  seat  to  Mrs. 
Stewart,  she  required  Charies  Stewart  notary 
at  Banavie,  first  to  aliew  the  act  of  parliament 
to  colonel  Crawfurd,  and  then  demand,  under 
protestation,  a  double  of  the  warrant  for  com- 
miittog  her  husband.  But  the  timid  notary 
flecUnM  the  employment,  and  left  tlie  place. 
The  cauie  of  which  behaviour  in  him  mav  be 
discovered,  bv  looking  st  his  deposition ;  where 
he  says,  '  Tnat  he  Tiad  formerly  declined  to 

*  act  (viz.  at  the  ejec(iou),  because  be  did  not 
'  care  to  disoblige  Glenure.'  And  if  this  was 
thought  by  him  to  be  a  good  reason  before  for 
Dot  acting,  it  was  become  a  stronger  one  now ; 
uhen  not  only  James  Stewart's  friends  were 
menaced,  but  the  whole  country  put  nnder 
terror.  For  Mr.  Stewart  younger  of  Balla- 
chclish  hsd  asked  from  Barcaldine,  at  the 
liouse  of  Glenure,  a  copy  of  the  warrant  of 
commitment ;  and  was  not  only  refused  it,  but 
told  by  Barcaldine,  that  it  was  none  of  bis  (Mr. 
Stewart's^  business ;  and  if  be  acted  any  for- 
Uierin  this  matter,  be  himself  should  be  taken 
up  and  imprisoned  likewise.  This  yonng  gen- 
tleman however,  seeing  himself  the  only  per- 
son that  had  courage  to  speak  or  ad  for  the 
prisoner,  went  to  JVlarybuigh,  adjoining  to  Fort 
William,  and  from  thence  wrote  a  letter 
to  colonel  Crawfurd,  earnestly  begging  to  be 
alkiwed  to  converse  with  the  prisoner  about  ex- 
press  business,  and  in  the  presence  and  hearing 
of  any  oflicer  the  colonel  should  be  pleased  to 
appoint.    To  this  letter  Mr.  Stewart  received 

the  folkiwing  answer. *  Fort- William,  3 

<  o'ckudc.  Sir ;  colonel  Crawfurd  desires  me  to 

*  acquaint  you,  that  you  are  represented  to  him 

*  as  a  person  entirely  in  the  ooulidence  andse- 
'cretsof  Allan  Breck  Siewart;  and  that  the 

*  intercourse  you  are  said  to  have  held  with  the 

*  supposed  murderer  of  Glenure,  at  the  time 

*  immediately  precedintf  the  murder,  makes  it 
'  (in  his  o|Mnioo)  improper  for  your  being  ad- 

*  wilted  either  to  the  prisoners,  or  as  a  friend 

*  into  the  garrison. — ^"rhe  colonel's  illness  lie 

*  hopes  will  be  an  excuse  for  not  writing  bim- 
'  self.    1  am.  Sir,  your  humble  servant,  (signed) 

Too.  Weldon.' 
*<  Now,  without  saying  any  thing  in  parti- 
eular  of  this  extraordinary  fetter  of  adjutant 
WeUoB,  is  it  not  evident,  that  the  foresaid  act 
•TpMrliMiient,  the  only  security  of  the  liberty 
«f  our  persoM  in  North-Britain,  was  despised 
mA  diitbeyad  in  a  moit  illegal  and  arbitrary 


of  the  family  of  the  deceased,  who  bad  taken 
upon  them,  as  it  was  very  just  and  natural,  to 
be  managers  and  conductors  of  the  inquiry, 
and  to  cause  to  be  brought  before  the  sheriff  to 

manner,  by  the  ^vernor  of  the  fort,  even  after 
it  had  been  put  Into  his  hands,  as  above  men- 
tioned, and  was  undoubtedly  read  by  him  P  But 
this  bsppeoed  in  the  highbuids  of  Scotland,  at « 
place  governed  by  miiitery  persons,  and  remote 
from  help,  check,  and  every  other  controul. 
— Soon  thereafter,  col.  Crawfurd  being  re- 
moved from  Fort- William,  Mr.  Leighton  took 
his  place ;  to  whom  the  prisoner's  wife  applied^ 
desiring  access  to  her  husband.  But  this  her 
legal  privilege  was  not  only  denied  her  by  the 
uew  governor,  but  she  was  told,  that  if  she  did 
not  immediately  depart  from  the  town  of  Ma* 
ryburgh,  she  would  be  put  in  prison  herself. 
Thus  tliis  poor  and  almost  distracted  woman  is 
driven  from  the  place  and  neighbourhood  of 
her  husband's  connoement,  and  <3>liged  to  leave 
him  in  a  friendless  and  forkim  state.  And 
some  time  after  this,  the  same  Mr.  Leightoa 
having  allowed  James  Stewart  to  write  a  letter 
to  one  of  bis  acquaintance  about  necessariea, 
James  ventured,  m  a  postscript,  to  comploio  to 
his  friend  of  the  closeness  ol  his  confinement, 
and  other  hardabi|>s  put  upon  bidi.  But  the 
letter  being  carried  to  the  governor,  to  be  reed 
by  him  before  it  was  sent  off,  be  went  in  a 
passion  to  the  window  of  the  prison,  and  tbere 
scoMed  James  fur  daring  to  write  sucb  a  pest- 
script  ;  and  throwing  the  letter  into  the  priaoB« 
assured  James,  that  if  he  did  not  write  bis  letter 
over  again,  and  keep  out  the  postscript,  oo  leU 
ter  should  be  allowed  to  go  from  him  out  of  the 
garrison. 

Pudet  ban:  opprobria  vobis, 


£t  dici  potuisse,  et  neu  putuisse  retelli. 

"  At  length,  on  the  Cth  of  July,  after  a  dose 
confinement  of  fifty  days,  a  double  of  the 
foreioentioned  warrant  from  the  lord  justioe- 
ckrk  was  delivered  to  the  prisoner.  And  that 
h  W88  on  tliis  day,  and  no  sooner,  can  be  in- 
atructed  by  a  letter  under  the  prisoner's  band| 
convej^iug  this  double  to  one  of  his  friends^ 
By  this  delay,  and  tlie  hitherto  dose  confine' 
ment  of  the  prisoner,  did  the  prosecutoxe  se- 
cure a  most  consequential  point ;  the  putting 
it,  to  wit,  out  of  the  prisoner's  jiower  to  bring 
ou  bis  trial  in  the  justiciary-court  at  Edinburgb, 
by  running  his  letters ;  where  his  agent  would 
have  had  daily  access  to  him,  and  the  assist- 
ance of  lawyers  could  have  easily  been  got,  in 
order  to  his  defence.  W  heress,  by  the  fure- 
mentioned  artful  and  unlawful  methods,  he  did 
nut  see  either  agent  or  lawyer  till  at  laverarjTi 
within  two  days  of  the  trial ;  unless  it  was  el 
Tyndroin,  where,  in  the  road  from  Fort-Wil* 
liam  to  Inverary,  he  accidentally  met  with  bia 
agent,  and  conversed  with  him  for  about  ea 
hour,  as  shall  afterwards  be  more  particulerijr 
taken  notice  of.  Still  the  prosecutors  had  it  n 
tbeir  power  to  have  given  bim  notice  of  bii 
Uial,  and  time  for  hie  agent  end  Uwycis  It 


63] 


for  Murder. 


A.  D.  1752. 


[66 


be  examined,  all  persons,  who,  according^  to 
Ibeir  ioforrnation,  €»iild  g^ite  any  light  iu  tlie 
affair ;  and,  with  the  examinations  so  taken, 
they  brought  alon^  with  them  to  me  three 
learned  counsel,  which  was  also  very  reason- 
able and  usual,  and,  as  in  all  other  cases,  was 

prepare  far  it,  by  bringing  it  on  in  the  way  of 
presentment,  or  what  is  commonly  called  the 
porteoos-roll.  But  they  were  not  so  disposed, 
oa'qg determined  at  any  rate  to  have  the  trial 
U  [nverary  ;  thoufph  contrary  to  the  opinion  of 
some,  that  on  all  other  occasions  used  to  direct 
tlie  condoet  of  the  chiefest  person  among  the 
private  prosecutors.  The  reason  will  readily 
occur  to  the  reader,  on  considering,  who  was  to 
be  tried,  at  what  place,  and  by  what  jury. 

'*  After  all,  criminal  letters  were  raised,  and 
printed  at  Edinburgh.  James  Stewart's  agent 
betng  informed  of  it,  earnestly  begged  a  copy  of 
the  libel,  which,  he  said,  was  a  favour  that  no 
pcfraoB  (if  the  least  humanity  could  refuse,  con- 
wdering  how  short  a  time  it  now  was  to  the 
ailtiog  of  ibe  court ;  and  that  if  no  copy  of  the 
ifldictmenl  was  g^ven  him,  and  advantafi^  was 
10  be  Uken  of  executing  it  at  Fort-William, 
three  of  the  fifteen  days  allowed  by  the  law 
must  be  elapsed,  before  it  could  be  transmitted 
from  the  prisoner  at  Fort- William  to  his  agent 
It  Edinborgh  :  so  no  sufficient  time  would  be 
left  bim  for  finding  lawyers  of  character  and 
expetieoce,  and  making  the  other  necessary 
preparali'ons  ;  as  roost  of  the  noted  counsel  in 
Ediaburgfa  had  been  industriously  taken  up  by 
ike  private  prosecutors  long  before  ;  and  it 
being  vacation -time,  the  rest  of  them  were  gone 
into  the  country,  oc  engaged  to  attend  the  other 
cireuit-cviuru.  Add  to  these  reasons,  the  time 
it  would  require  to  write  out  copies  of  the  libel 
far  the  several  lawyera  that  might  he  prevailed 
■yoB  to  appear  as  counsel  for  the  pannel,  in 
•rdcr  lo  their  considering  it  duly  before  they 
ifaaald  meet  at  I  nverary  ;  otherwise  it  might 
ioofc  fckcr  going  the^e  to^itiiess  the  form  of  a 
^1,  than  to  lie  of  any  service  to  the  pahnel ; 
which  tbey  could  not  bfe,  unless  timely  prepared 
fcr  it.  Yet,  strange  to  tell !  even  this  small 
and  usual  favour,  a  copy,  to  wit,  of  the  printed 
Iftei,  was  absolutely  refused  by  tlie  agent  for 
lbs  prosecutors ;  u  bo  always  shewed  (to  his 
frabe  'be  it  said)  the  greatest  diligence  in  car- 
rjiof  on  this  good  work.  Nay,  a  person  of 
pM  distinctioD  was  threatened  with  a  cOm- 
pUit  against  bim,  if  he,  in  compassion,  to 
vUefa  be  was  much  inclined,  should  give 
or  aiSer  a  copy  for  the  pannel's  agent. 
k  copy  however  was  procure<l,  by  mere 
afleidesL  It  happened  thus.— Such  care  was 
pikco  by  the  private  prosecutors  at  Mr.  Fleni- 
■g**  printing- hoosoii  while  the  libel  was  in  the 
press,  that  one  for  them  Mood  by  all  the  time ; 
and  ao  soon  as  it  was  finished,  the  tjpes  were 
Mbtf  do  wo,  or  discomposed,  and  all  the  copies 
csrried  mway.  It  hsippened  pmvidenlially,  us 
•as  then  thought,  tbmt  the  prouf-copj\  which  | 
bsd  been  thrown  into  a  corner,  was  picked  up  I 
ky  acttrions  strangeri  who  most  kindly  cariiud  j 

VOL.  XTX,  I 


to  myself  most  acceptable,  that  we  might 
jointly  consult  and  deliberate,  whether  from 
these  examinations,  and  the  discoveries  thereby 
made,  there  was  matter  sufficient  for  bringing 
this  pannel  to  trial;  upon  which  question  we 
all  agreed  in  the  affirmative :  But  these  three 

it  to  the  pannel*s  agent ;  who  caused  reprint  it 
immediately.  This  coming  to  the  knowledge  of 
the  private  prosecutor?,  complaint  thereof  was 
made  to  the  magistrates  of  Edinburgh :  the 
foresaid  stranger  was  called  before  them,  in 
order  to  be  prosecuted,  and  the  servants  of  the 
printing-house  were  threatened  with  punish- 
ment. But  a  certain  gentleman,  of  more  pru- 
dence as  well  as  interest,  hearing  of  tliis  in- 
tended process,  advised  it  to  be  dropt.  In  this 
by-way,  then,  the  pannel'a  agent  being  fur- 
nished with  a  copy  of  the  libel,  and  observing  ia 
it  some  extraordinary  articles,  especially  the 
general- one  relating  to  threatenings,  wa&  put 
mto  a  most  alarming  hurry,  to  prepare  for  the 
defence  of  his  client.  He  had  expresses  to 
send  to  different  lawyers  in  distant  places,  and 
rode  about  himself  night  and  day,  to  try  and 
persuade  two  able  counsel  at  least  to  undertake 
the  office.  Of  the  men  of  greatest  note  most 
were  pre-engaged  by  the  agents  of  the  other 
side ;  some  were  afraid  of  the  rainy  weather, 
anti  the  length  of  the  journey ;  others  of  re- 
sentment from  a  certain  quarter ;  and  many  re- 
fused altogether.  In  this  perplexing  state,  the 
pannePs  agent,  almost  ready  to  give  up  the 
cause  of  his  poor  client,  went  to  one  of  the  first 
counsel  against  him,  and  declared,  that  he  wan 
to  advise  the  pannel  to  throw  himself  upon  the 
court,  and  to  plead  his  own  cause  in  the  best 
way  he  could  ;  seeing  no  lawyers  of  weiglit 
could  be  found  to  speak  for  him.  But  this,  he 
was  told,  would  be  a  (Ies[ierate  course,  and  was 
advised  by  no  means  to  take  it.  At  last,  four 
very  sufficient  lawyers  (two  elder,  two  younger) 
were  prevailed  upon  to  go  to  Inverary.  And  • 
the  agent  having  succeeded  so  fur,  resolved 
next  to  go  to  the  pannel  at  Foil- William,  in 
order  to  learn  from  hinv^elf  what  (le  had  to  say 
in  his  own  defence.  Hut  being  informed,  in  a 
direct  manner,  that  not  only  the  pannel  himself 
was  kept  in  illegal  close  conKnement,  -but  that 
likewise  his  two  sons,  his  two  servants  the  Mac- 
colls,  ami  others  in  the  list  uf  witnesses  against 
him,  were  all  confined  in  the  same  illegal  way 
in  the  prison  of  Fort.-Witliam;  and  particular- 
ly, that  the  said  two  Maccolls  had  been  kept 
there  in  shackles,  or  hand-cuffs,  for  the  space 
of  three  months,  and  a  third  Maccoil  (the  bou- 
man)  shackled  in  the  s:inie  way  some  shorter 
time;  he,  the  agent,  Jintged  it  proper  to  ask 
an  oriler  from  the  lord  justice  clerk  to  the 
keepers  of  the  prison  where  lliese  Witnesses 
were  detained,  to  give  aeress  to  the  agent,  to  see 
and  inform  these  prisoners,  (in  the  presence  of 
the  ofliccrs  of  th»^  garjjs<«i,  or  of  any  of  the 
jiibticfs  of  the  pencT  or  minister  of  the  gospel 
he  u»i;;lit  find  tlirre),  not  to  be  terrified  hy  the 
crnel  :;:id  iilr<!:il  trintiiieut  they  had  met  witli, 
and  to  .s\ver\r  no:hin<r  but  what  whs  true.  With 
F 


67]  25  GEORGE  11. 

geotlemeii,  though  Tery  able  in  their  profei* 
MOO,  were  not  til  the  ezperieoced  coaniel.  And 
as  it  is  my  comtant  with  to  see  every  pannel 
as  ahly  ildreDded  as  his  oaase  wilf  bear,  it  is 

this  Tiew  Mr.  Stewart,  the  pannePs  agent, 
gate  in  the  following  Petition : 

••  Unto  the  Right  Honourable  the  Lord  Jus- 
tice-Clerk: 

**  The  PETmoN  of  James  SrEWAiir  in  Aocham, 
Allan  and  Charles  Stewart  his  sons,  Doanl 
and  John  Blaccolb  hisserfants,  Alexander 
"Stewart  packman  in  Appin,  John  MaccoH 
bouman  to  Appin  in  Koalisnacoan,  and 
Juhn  Carmichael  miller  in  KinlochleTOu, 
all  prisoners  iu  Fort- William,  or  trans- 
ported from  that  to  Inrerary. 

"  Humbly  sheweth  ;  That  your  petitioners 
Were  in  May  last  apprehended,  and  incarce- 
rated in  Fort-Williaoi,  upon  suspicion  of  being 
art  and  part  in  the  murder  of  Colm  Campbell  of 
Olenure,  deceaied ;  and  have  been  close  confined, 
and  no  admittance  allowed  to  theiA,  since  they 
were  incarcerated,  though  frequenfly  required ; 
notwithstanding  the  act  of  parliament,  in  the 
Tear  1700,  anent  wrongous  imprisonment,  pro- 
hibits and  discharges  close  confinement  of  any 
prisoners  after  eight  days  ftom  the  time  of  com- 
mitment 

*'  May  it  therefdre  please  your  k>rdship,  to 
grant  warrant  and  ordam  the  gOTemor  of  Fort- 
William,  and  all  other  keepers  of  prisons  where 
your  petitioners  are,  or  may  be  sent,  to  gi?e 
free  access  and  admittance  to  all  persons  who 
shall  desire  to  see  and  conferee  with  your  pe- 
titionere,  for  their  defence,  or  any  other  lawful 
affairs. — Acdbrdincr  to  justice,  ^c, 
**  (Signed)  A.  8tc\vart,  doer  for  the  petitioners. 

**  On  this  Petition  the  following  dehferance 
was  given : 

«'  The  Lord  Justice-Clerk  having  considered 
the  above  Petition,  and  having  interrogated  Mr. 
Stewart  who  signs  the  same,  whether  he  had 
instructions  from  all  or  any  of  the  prisoners  in 
whose  name  the  petition  is  offered,  to  complain 
of  their  being  confined  otherwise  than  agree- 
ably to  the  directions  of  the  act  of  parliament 
anent  wrongous  imprisonment  ?  and  he  having 
answered.  That  he  had  written  instructions 
from  James  Stewart,  one  of  the  petiiionen,  to 
set  forth  as  above,  but  no  direct  order  from  the 
other  persons  themselves* ;  grants  warrant  to, 
and  requires  the  keepers  of  the  prison  at  Fort- 
William,  and  recommends  to  the  commanding 
otiicor,  to  give  access  to  the  friends  and 
lawyers^  at  all  proper  and  convenient  times,  to 
see  and  converse  with  the  said  Jamea  Stewart, 
in  order  to  prepare  for  his  defence ;  a  criminal 

*  "  Mr.  Stewart  offered  to  give  oath  upon 
it,  that  he  was  properly  instructed  to  make  this 
ap|)lication,  hut  did  not  chuse  to  shew  his  letter 
of  instructions,  it  containing  tbingi  not  yet 
f  roper  to  be  known." 


Trial  of  James  Sietoartf 

with  oleasure  that  I  now  see  this  ptnnd  at- 
tended by  lour  of  my  brethren,  who  I  am  sur* 
will  omit  nothing  material  for  bis  service.  ' 
Upon  the  cause  itself,  there  is,  in  reality,  no 


libel  having  issued  against  him,  in  order  to 
his  trial  at  the  circuit-court  to  be  held  at  In- 
verary :  but  refuses  to  interpose  as  to  those 
who  have  given  no  express  direction  to  com* 
plain  of  the  keepera  of  the  prison  where  they 
are  said  to  be  confined,  or  to  give  any  orders  as 
to  keepere  of  prisons,  who  are  not  accused  as 
having  done  any  thing  contrary  to  the  duty  of 
their  oflice. — Given  at  Edinburgh  tbe  SOtn  of 
August  1759«— (^S^^)  Ch.  Are8K«£. 

**  And  here  let  it  be  remarked,  as  an  occor- 
renoe  in  these  proceedings,  not  the  least  extra- 
ordinary, that  a  British  subject  waa  obliged  to 
sue,  as  a  fiivour  from  a  judge,  for  what  be  had 
a  right  to  by  his  birth.  But  it  was  still  inore 
extraordinary,  that  that  favour  was  refused  m 
some  parts,  and  scarce  muted  in  any.  The 
great  officer  of  justice  who  was  applied  to,  ex- 
pressly refuses  to  interpose  as  to  some,  vis.  . 
those  who  have  given  no  directions,  though 
he  owns  they  are  said  to  be  confined,  (uA' 
whose  confinement  prevented  them  finom  gi? • 
ing  directions) ;  and  refuses  to  give  any  oideni 
to  jailon  who  are  not  accused  of  having  done 
any  thing  contrary  to  the  duty  of  their  office  ; 
as  if  the  very  applicatiou  to  him  did  not  import 
a  breach  of  their  duty  in  the  grossest  manner, 
in  defiance  of  law,  nay  of  a  law  the  most  sa- 
cred barrier  of  tlie  riffhts  of  the  subject.  This 
is  what  he  refuses :  let  us  see  what  he  graufs. 
He  grants  sn  order  to  the  jailor,  and  ne  re- 
commends to  the  commanding  officer  of  Fort- 
William,  to  give  free  access  to  James  Stewart, 
one  of  the  prisonera,  a  criminal  libel  haring 
issued  against  him,  as  if  that  dreumstmnce 
was  the  reason  of  the  admission.  The  words 
of  the  act  are  free,  as  the  natural  rights  of 
mankind,  from  which  it  was  derivra^'^end 
which  it  was  calculated  to  ascertain.  It  is 
an  inhumane  restraint  on  the  most  valuable 
of  human  blessinsrs,  liberty,  that  that  law 
meant  to  ward  off":  and  all  that  are  impri- 
soned, are  equally  entitled  to  its  protection. 
It  is  not  to  the  pannel,  nor  tu  the  witness,  bat 
to  the  prisoner,  under  whatever  denominatioii, 
that  it  extends  its  relief.  And  surely,  if  any 
distinction  had  ever  been  intended,  witneMfen 
would  have  been  the  last  to  have  been  included 
in  it ;  whose  information  is  more  necessary  to 
the  agent,  than  even  that  of  the  accused  him- 
self. But,  restrained  as  this  part  of  the  order 
already  appears,  this  is  not  all ;  for  it  was  di^ 
rected  to  the  jailor  of  one  particular  prison 
only ;  s  restriction  of  so  inuch  the  more  con* 
sequence,  as  it  will  appear  the  prisoner  was 
removed  from  that  prison  before  the  agent 
could  well  reach  it,  nay  and  in  consequence  of 
a  warrant  sent  from  Edinburgh  for  that  very 
purpose.  As  this  affair  will  suggest  sufficient 
matter  of  observation  of  itself,  1  shall  make 
upon  it  but  this  short  remark.  That  igtuMUMie 


§9]  ~^^^H^      for  Murder, 

fk^ea  to  1  dtbitoeti  the  retevaocy  oMIie  libel ; 
90f  ^kMS  lli«r«  ippear  to  me  to  be  aoy  iltf- 
» betvrixt  us  mmccnung  the  interlocutor 
lenre  or  ex{i«cl  to  receire  irom  jour 
1%  foe  iHi'  J  *  I  i»f  counsel  lor  tbc 
Tbvre  Ailmii  i  ocity  of  the  crime 

bijxi  AS  struiigiy  qb  I  am  able  to 


1.0.  1752. 


[70 


I 


JkB  hm  CMDQt  be  pleaded  in  this  case^  as  it 
v»is  ihil  4>f  the  military  jailors*  Nor  let 
llot  f«HllcQicti  take  ofTenee  at  this  apnella- 
Ml  {  im  mtMoe  ihev  submit  to  the  drudgery 
^~  my  ao  «iQfse\  ol^  the  ofiice^  let  them  bear 
liiatMHioiir  of  ibe  name:  fur  little  is  the 
between  bein^  exborled  by  recom* 
If,  or  compelled  by  orders,  to  the  ex- 
'  iba  fuDotion,  unce  exercise  it  they 
10  return  (Votn  a  digression,  which 
i  will,  it  is  hoped,  eJCcuse : 
fe  deHverance  was  sent  by  express 
%m  F«rt  Wtnkin,  the  panorl  was  served  with 
iW  ofittbftl  letters  on  the  21st  of  August, 
I  iajB  before  the  trial  came  on  ; 
rtoif  hw  of  these  days  ibr  the  troops 
wHii  their  prisoner  from  Fort  Wil- 
» Ifffcrmry,  and  tiie  three  Suudays  that 
d,  there  rem  tuned  only  twelve  free, 
MSI  precious  days, 
^  Tb«  pexiner^  agent  having  taken  at  Edin- 
hmgb  mbmi  previous  stepiit  (he  shortness  of  the 
liaft  avowed  bun  to  do,  set  out  for  Fort  Wil* 
Uftm  OQ  ibe  ftasit  day  of  August ;  and,  on  the 
Sd  of  8etttrmber,  met  acculentatly  with  the 
leoael  at  Tyndrom,  ^uiirded  by  a  party  of 
I,  in  their  way  from  Fort  William  to 
iry*  lie  instantly  applied  to  the  com- 
0(fficer,  and  desired  leave  to  imeak 
r  sriiooer*  TUlh  uas  at  first  renised 
hf  ibe  officer,  btfcauhi!  of  his  orders,  and 
Ibe  cBoliiied  warrant  thut  \vn%  shown  htm  by 
teafem  :  but  at  last,  with  great  difficulty ,  he 
VMeUvvetl  ij  converse  with  the  prisoner  for 
I  bofir.  The  agent  then  found  himself 
to  ride  on,  c^ven  into  the  country  of 
iital  lie  uuLitit  there  search  the  pannePs 
and  t  il  of  facta,  &c.     Bnt 

•bat  via  bi*  -  ,  .  when  arriving  at  Au* 
lkam*tke pa»ni4  »d wt^lling  bouse,  he  tound  ibat 
hk  iapa»ilflrici  bad  bff>n  opened  and  examined, 
Acit  4»tfiEfc»t  liitit-  i] out  any  warrant, 

If  Dear  ralaaioas  i)\  uiort,  assisted  by 

iwirtary  fon  4  away  whatever 

pftfstliejti  lilt  tbetr  purpose. 

Bfdmoetrsvi  iKii  u*  imi  tnry,  where  he  met 
of  ibe  paimcrs  laN^^ers  oci  3Jutiday 
^irH  tbe  7lh  '-*  w  ^.-...1 ..  ,r  s    r-  the  imh 
h»U<.    Tbry  n  to  ihe 

pumel;    bot^u^        :„.,.  ,.i,  :.>ienoon, 

•bea  Cbera  icmaim-d  but  a  duy  and  a  halt  to 
ila|aaa<f  to  mi'^^nv  tnK  tLKut  lor  the  drawing 
•  ilale  iv  I ^  counsel  for  pre- 

ibe  proper  inter- 
I  im  the  VT  This  iras  a  work 

aordjr  rcti|utrt*i  '>  bnger  time»  as 

eaeiy  ptranti  uf  the  l»^  >rtce  iu  these 

till  are  }    end  i  the  lav  hai 

k  iiji  al  kAf  t.^ 


L    Cd 

r  5t 


express  It:  snd  ihey  tartiier  admitteil,  ns  ibejrJ 
must  have  done,  that  the  chargin«t  the  panuetl 
as  being  guilty,  or  art  and  part  of  that  crime«| 
is  relevanl:  lo  infer  the  conclusion,  and  nec^s* 
I  aarily  requires  his  being  remitted  to  the  know- 
ledge of  an  assize,  whether  be  is  so  guil^J 
or  not.  / 

And,  on  the  other  hand,  I  readily  admit  tul 
them,  that  the  laudable  and  just  practice  of  I 
this  court,  vf  later  years,  hftth  been,  not  to  find] 
or  determine  a  particular  relevancy  upoa  cer« 
tain  facts  or  circumstances  set  forth  in  the  iful)«] 
sumption,  or  minor  proposition  of  the  lihej,] 
which  is  indeed,  in  some  measure,  to  pre*  I 
occupy  the  province  of  ihejury^who  are  thttl 
judgi'S  of  the  fact,  and  is  also  dangerous  to  the  \ 
course  of  justice;  because,  when  a  number  uf  J 
facts  and  circumstances  were  found  jointly  re-  j 
levant  to  infer  the  pannePs  guilt,  it  the  least] 
material  of  these  should  not  be  proved,  %l*  I 
though  a  more  pregnant  circumstance,  that  J 
was  not  specially  libelted  or  expressed  in  thai 
interlocutor,  should  come  out  upon  the  evi»| 
dence,  if  the  jury  followed  the  directions  ofl 
that  interlocutor,  and  adapted  their  vprdict  ta I 
it,  the  pnnnel  behoved  to  be  acquitted,  thougb  1 
in  reality,  and  in  their  opinion,  he  was  guilty,    I 

It  was  not,  therefore,  with  intent  that  your'l 
lordships  should  give  your  opinitm  upon  tber 
relevancy  and  sufficiency  of  the  facts  and  cir-  ] 
cumstances  set  forth  in  this  libel,  that  thesa] 
were  so  particularly  there  inserted  ;  but  this 
was  done  agreeably  to  some  of  the  best  prece*  I 
dents  in  the  records  of  this  court,  for  the  fur-  ' 
therauce  of  jnsliee,  both  iu  respect  of  tlie  pro-  ' 
secutors  and  of  the  pannel :  for  the  former, 
that  as  the  evidence  to  be  brought  is  circum-  | 
staotial,  the  jury  may  be  the  belter  enabled  td 
ponder  the  several  circumstances,  and  connect  | 
them  together,  and  attend  to  the  evidence  that 
shall  be  brought  for  nroof  of  them  ;  and  for 
the  sake  of  the  pannel,  that  he,  knowing  tha 

*  As  to  the  ustirpstion  in  this  respect  upon 
the  province  of  the  jury  which  was  practtseil 
ita  Scotland  for  a  period  terminating  not  verf 
many  years  before  (he  time  of  this  Trial,  sea 
in  Mr.  Hume's  Commentaries  on  th<  Law 
of  Scotland  respeciiiig  IVial  for  Crimes,  tha 
history  of  the  charge  of  Art  and  Part  (chap.  7}| 
ami  more  particularly  the  history  of  the  mter- 
locutory  of  Rtlevancy  (chap.  10).  See  also 
A  rBot*s  observations,  (in  his  Collection  of  Cri- 
minal Cases,  p.  174  )  already  quoteil,  npno  the 
usurpations  which  the  Courts  in  Scotland  after 
the  HestoratioQ  exercised  upoti  the  province  of 
the jury. 

By  titis  usurpation,  If  I  rightly  understand 
the  matter^  the  jury  were  precliiWtd  from  con- 
si  deri  Kg  not  only  the;  le|L,'At  '^uilt  of  the  utfence 
charged,  but  also  the  suthciency  of  the  indkiu 
alleged  to  prove  that  fact ;  and  their  province 
w  as  confinetl  to  the  considcnitiou  whether  those 
indiciu  had  beeti  provedt  Hi;p,  as  connecti^d  ,' 
with  this,  the  passa^^e  from  Mr.  H^inie  ctted  iti 
a  note  to  the  conclusion  if  AIi.  Brown's  reply » 
ia  fav  our  of  the  paitoeU 


71 


25(M<:ORGE  II. 


7  rial  ojjatita  Steaiart, 


[72 


jiriiicipul  facts  that  were  to  be  proved  is  sup- 
port ot'  the  charnre  a&fainst  him,  might  prepare 
the  evidence  for  his  vindicatioo,  and  for  ex- 
ulaiuing  those  appearauces  of  guilt  with  which 
lie  was  loaded,  in  the  best  mauner  he  should 
be  able. 

Another  thing  concerning  the  interlocutor 
to  be  pronounc^  by  your  lordships,  in  which 
I  most  readily  agree  with  the  pannel's  counsel, 
is,  that  he  should  be  allowed  to  prove  the  se- 
▼eral'facts  alleged  for  his  defence,  and  evefy 
pertinent  fact  or  circumstance,  that  he  or  his 
counsel  think,  may  be  available  for  proving  his 
innocence. 

And  thus  far  we  seem  to  be  agreed  on  the 
terms  of  the  interlocutor,  if  the  tnal  is  at  all  to 
proceed ;  against  \rhich  one  previous  objection 
tiath  been  made,  namely i  That  this  pannel, 
mIio  is  only  said  to  he  ciiarged  as  accessary, 
cannot  be  tried  before  the  principal,  Allan 
Breck,  be  first  discussed  :  in  support  of  which 
objection,  they  ^ave  alleged  certain  passages 
in  'he  old  books  of  the  law,  and  sir  Geo.  Mac- 
Jtenzie  in  his  Criminals,  title  Ait  and  Part, 
parag.  9. 

'  But  to  thi%  I  answer,  iirst  of  all,  that  sir 
George  Mackenzie  himself,  in  the  passage  re- 
ferred to,  furnishes  an  answer  to  the  objection  ; 
for.  af\er  stating  the  question,  whether  acces- 
saries can  be  suctl  till  the  chief  actors  be  first 
discussed,  and  quoting  the  passages  in  the 
Hegiam  Majestatem,  and  other  old  books  that 
fivour  the  negative,  he  adds  a  decision  of  that 
question  in  this  court  in  these  words :  ^*  not- 
withstanding all  which,  Charles  Itobertson 
being  pursued  as  accessary  to  the  casting  down 
of  a  hoiiso,  which  was  libelled  to  have  been 
cast  down  by  his  sons  and  servants  at  his  coin- 
maml,  the  justices  fuund,  that  he  might  lie  put 
to  the  knowledge  of  nn  inquest,  although  the 
children  and  servants  were  not  first  discussed ; 
because  the  act  appointing  a  libel  to  be  relevant, 
bearios:  strt  and  part,  did  abrogate  the  foresaid  ; 
4tli  verse,  26ih  chap.  I.  4.  H.  IVI.  since  such  as 
are  pursued,  as  art  and  nart,  are  all  principals/' 
This  was  the  decision  or  the  Court  and  the  rea- 
son of  it,  founded  on  the  act  1592,  chap.  153, 
which  enacts,  *'  That,  in  time  coming,  all  cri- 
lu.inal  libels  shall  contain,  that  persons  com- 
plained on  are  art  and  part  of  the  crimes  li- 
belted  ;  which  shall  be  relevant  to  accu.^eihera 
thereof;  so  that  no  exception  or  objection  lake 
away  that  part  of  the  libel  in  time  coming." 

The  author  proceeds  in  the  same  passage  to 
I'ccite  some  part  of  the  argiimeot  previous  to 
this  decision ;  and  says,  <'  That  the  advocate 
alledged,  it  were  alnturd,  that  the  king  should 
be  prejudged  bv  the  absence  of  the  princifial 
party  ;  to  wiiich  it  was  answereil,  that  the  king 
was  not  preiudged,  seeing,  if  the  principal 
party  were  discussed  and  denounced  fugitive, 
the  accessary  might  be  proceeded  against." 

Now  this*  is  what  hath  been  done  in  the 
])resent  case :  Allan  Breck  Stewart  htth  been 
called  upon  to  stand  trial  tor  his  part  in  the 
same  offence,  and  hath  been  denouDced  fagi* 
tive  for  not  appeariog  to   abide   his   trial; 


which  is  discussing  him  as  far  as  the  laws  of 
this  land  admit  of,  when  his  person  is  not  in 
custo<ly. 

But  further,  it  is  to  be  observed,  that  Allan 
Breck  is  not  charged  in  this  libel  with  being 
Uie  principal,  and  this  pannel  as  only  accessary 
to  the  murder  of  the  deceased  G  tenure  ;  they 
are  both  charged  in  the  same  words  iVilb  being 
guilty,  actors,  or  art  and  part  of  the  said  beinoiAt 
crime  ;  that  is,  in  the  terms  of  the  statute  of 
king  Ja.  6,  just  mentioned  :  and  though  it  be 
true,  that  in  the  subsumption  or  recital  of  the 
facts,  it  is  said,  that  the  actual  murder,  or  firing 
upon  the  deceased,  was  committed  by  Allan 
Breck,  it  is  also  said,  that  this  was  d6ne  iq  re^ 
venge  of  the  quarrel  which  this  pannel  took 
up  against  the  deceased,  and  in  pursuance  of  a 
concert  or  conspiracy  betwixt  the  pannel  and 
Allan  Breck,  to  take  away  the  life  of  Glennre; 
and  such  being  the  case,  they  are  in  reality 
both  principals.  By  the  law  itself  (I.  15  ad 
legem  Corneliam  desicariis)*'  mandator  dedis 
pro  homicidft  habetur :"  and  the  learned  Ma- 
theus,  de  Criminibus,  in  hb  prolegomena,  e.  1, 
§12.  '*  qui  mandant  scelus,  quique  mandatusa 
exequuntor,  utrique  rei  sunt,  et  ordinariv  niH- 
dem  pcense  snbjugandi,"  and  for  proof  of  tnis» 
brings  many  arguments  and  authorities ;  and 
inter  alioj  **  cum  quis  alicui  mandat  scelus, 
raandantem  quidem  caput  esse;  mandatarium 
vero  manum,  et  instrumentum  mandantis. 
Hinc  sacro  quoqute  oracolo  ccedes  Uriie  Davidi 
impingitur,"  U  »am.  xii.  9.  in  which  text  the 
words  of  Nathan  the  prophet  to  David  are, 
''  Thou  hast  killed  Uriah  the  Hittite  with  the 
sword." 

And  indeed  it  seems  not  to  be  agreeable  to 
reason  or  natural  justice,  to  hold,  that,  if  this 
Allan  Breck,  for  instance,  the  actual  manslayer 
in  the  present  case,  instead  of  making  his 
escape  beyond  sea,  as  probably  he  hatb,  had 
died  a  natural  death,  and  so  become  out  of  tbs 
reach  of  all  human  laws,  before  this  trial  ooaM 
be  brought  on  ;  and  supposing  the  most  direiA 
and  positive  evidence  could  be  brought,  that 
Breck  committed  the  murder  libelled,  by  the 
counsel,  command,  or  direction  of  tliis  pannd, 
or,  as  our  old  laws  express  it,  'out* hounded' by 
him,  that  yet  this  pannel  could  not  be  brought 
to  justice,  because  truly,  though  the  author,  be 
was  not  the  very  actor  cadis. 

But  that  such  is  not  the  law  of  Scotland  at 
this  day,  besides  the  case  mentioned  by  sir 
George  Mackeu/Je,  1  need  only  remind  your 
lordships  of  the  very  last  trial  in  the  Court  of 
Justiciary  at  Edinburgh,  of  James  Drummond 
Macgregor,  for  hebg  guilty,  or  art  and  part  of 
the  crimes  of  hamesucken,  forcible  marriage, 
and  rape:  for  all  which  the  trial  proceeded 
against  him ;  and  though,  in  the  crime  of 
hamesucken,  he  and  his  accomplices  mieht  be 
all  equally  principals ;  yet,  in  the  forcible  mar- 
riage and  rape,  Robert  his  younffer  brother,  to 
provide  whom  with  a  wife  and  fortune  that 
wickedness  was  committed,  was  no  doubt  the 
principal  party  and  actor  ;  and  yet  Robert  had 
been  no  otherwiie  discnsscd  than  Alten  Breck 


73] 


Jar  Murder, 


A.D.  1752. 


[71 


hu  been  m  the  pretent  case,  that  is,  called  upon 
ta  abule  his  trial  Tor  these  offences,  and  pro- 
DOUDoed  a  t'ugiliTe  for  not  so  doinsf. 

At  for  the  argument  which  the  counsel  for 

the  nuinci  have  chiefly    insisted  upop,   and 

irlueo  ihey  have' professedly,  and  1  think  not 

impropcriy,  calculated  for  the  jurors  who  now 

bear  as,  namely,  to  impugn  the  relevancy  or 

aaffidaocy  of  the  several  facts  and  circum- 

ilascefl  libelled  to  infer   the   panoePs  being 

^'hy,  or  art  and  part  of  the  murder  in  qui^s- 

lioe ;    I  do  not  chuse  at  present  to  enter  parti- 

ealariy  imo  that  argument,  but  to  reserve  that 

tiU  we  come  to  anm  op  the  evidence  to  the 

junr,  Mieh  aa  it  shall  come  out  in  their  presence; 

which  may  poHibly  in  some  articles  be  weaker, 

aad  10  others  stronger,  than  what  is  set  forth 

in  the  libd  from  the  materials  that  we  then  had 

bifiire  ua  ;  hot  io  order  to  shorten  our  work  at 

the  end  of  a  long  trial,  and  to  en^^age  the  at- 

teatioD  of  the  jury  to  the  evidence  that  shall  be 

Vravght  before  them,  in  support  ot  this  libel,  1 

beg  leave  now  to  make  a  general  observation 

or  two  far  their  sake. 

h  hath  been  admitted  by  the  counsel  for  the 
wt  even  in  the  trial  of  crimes,  circom- 
I  evidence,  when  clear,  is  not  only  com- 
petent, bat  perhaps  the  most  satisfying  and 
eoDvinciog  proof  of  any ;   and  it  was  well  said, 

*  that  circumstances  are  inflexible  proofs  ;  that 
witncases  may  be  mistaken  or  corrupted  ;  but 
tUngs  can  be  neither:'*   to  which  I  will  add, 

*  See  Burnett's  Treatise  on  Various  Branches 
tf  the  Criminal  Law  of  Scotland,  chap.  xxi. 

See  also  to  the  same  eflect  Paley's  Princi- 
fks  of  Moral  and  Political  Philosophy,  book  6, 
chap.  9,  vol.  a,  p.  299,  8voed.  of  1811. 

1  csaiifass,  it  seems  to  me,  that  the  compara- 
tiie  cogencv  of  circumstantial  evidence  has 
^«a  asmetuDes  estimated  too  highly,  and  no* 
Mad  with  perfect  justice.  <^  In  this,"  savs 
Mr.  Burnett,  <*  circumstantial  evidence  (the 
vitaeans  being  all  credible)  differs  from  posi- 
lif^  that  in  the  former  there  is  not  the  same 
nk  of  error  and  falsehood.  Witnesses  to  the 
6ei  uMy  be  mistaken,  or  may  falsify—*  they 
■ay  err,'  as  lord  Stair  says,  *  through  inad- 
venoiee  or  precipitancy,  and  through  the  se- 
ott  insinaationa  of  favour  and  hatred  which 
Aey  thenaselves  do  not  perceive.' " 

**  Circumstances,"  says  Paley,  "  cannot  lie." 
^  If  the  alleged  circumstances,  from  which  a 
^  is  calM  upon  to  infer  guilt,  were  to  be 
vitessed  by  the  jurors  themselves,  these  com- 
■cadatioDS  of  circumstantial  as  contrasted 
vilb  direct  evidence,  would  he  much  nearer, 
tba  they  are,  to  the  truth. 

•  Mr.  Hume,  (Comm.  Trial  for  Crimes,  vol.  2, 
chap,  zv,  p.  237),  treaU  the  subject  with  much 
jsdgneot  and  fairness  : 

**  J  have  assumed  it,"  he  says,  "  as  a 
lawful  Iking  to  convict  on  circumstances 
Mriy :  and  I  will  not  liere  multiply  caseH  in 
psefefapoaitiun  which  boot  only  vouched 
ky  the  whale  Mries  of  oor-crimiDal  records,  but 


that  the  competency  of  such  evidence,  for  in* 
ferring  the  ordinary  capital  punishment  for 
murder,  was  solemnly  decided  in  the  Court  of 
Justiciary  at  Edinburgh,  in  February  1718,  in 
the  trial  of  Stewart  A&rcrombie,  for  the  mnr- 

also  is  grounded  in  reason  and  necessity,  and 
the  law  and  practice  of  all  other  civilized 
realms.  Certainly  it  must  be  allowed  on  the 
one  side,  that  in  anv  case  of  pure  circumstan- 
tial  evidence,  it  is  atways  possible  that  the  pri- 
soner may  be  innocent,  though  every  parti- 
cular he  true,  to  which  the  witnesses  have 
sworn;  a  thing  that  cannot  happen,  where 
they  swear  directly  to  the  deed,  as  done  in  their 
own  presence.  But  on  the  other  side,  such  is 
the  difiiculty  of  contriving  an  apt  and  coherent 
train  of  circumstances,  that  perjury  is  far  more 
easily  detected  in  cases  of  thift  description:  and 
thejust  influence  of  the  former  consideration 
is  not  utterly  to  exclude  a  sort  of  evidence, 
which  is  often  irresistible  to  the  mind,  and 
which,  with  respect  to  many  crimes  is  tbe  only 
sort  of  evidence  that  can  ordinarily  he  obtained; 
but  to  recommend  to  jurymen  the  propriety  ot* 
caution  and  reserve,  m  which  indeed  they  are 
seldom  wanting,  as  to  the  sufliciency  of  the 
presumptions  of  guilt,  on  which  they  are  t6 
condemn."  ' 

Undoubtedly,  each  sort  of  evidence  fur- 
nishes cases  of  very  various  degrees  of  strengtii ; 
but  in  considering  the  merits  of  the  two  sorts, 
it  seems  not  to  be  a  legitimate  procedure,  to 
state  on  the  one  hand  a  very  strong  or  a  very 
weak  case,  without  stating  on  the  other,  a  case 
as  nearly  as  may  be,  of  correspondent  strength 
or  weakness.  When  it  is  said,  *^  witnesses 
to  the  fact  may  be  mistaken,  may  falsify,  may 
err  through  inadvertence,"  &c.  it  should  be 
recollected  that  all  this  is  not  confloed  to  wit- 
nesses of  direct  facts,  but  extends  also  to  the 
witnesses  of  circumstantial  facts ;  when  it  is 
said  that  circumstances  cannot  lie,  it  should  be 
recollected  that  the  relators  of  circumstances 
can  lie,  and  that  circumstances  themselves 
may  deceive ;  when  it  is  said  that  the  concert  of 
a  number  of  persons  to  impose  on  a  court  of 
justice  a  tissue  of  manifold  falsehoods  is  im- 
probable of  contrivance,  difficult  of  execution^ 
and  easy  of  detection,  it  should  be  recollected 
that  circumstantial  evidence  contains  not  al- 
ways either  numerous  circumstances,  or  cir- 
cumstances which  are  attested  by  numerous 
witnesses ;  when  it  is  said  that  circumstances 
trifling  in  themselves  may  by  concurrence  .su- 
perinduce decided  conviction,  it  should  be  re- 
collected that  the  more  trifling  in  itself  is  any 
circumstance,  tbe  greater  is  thc^ probability  that 
it  was  inaccurately  observed,  and  has  bc»n  er- 
roneously remembered.  It  is  to  be  hoped,  that 
false  witness  is  not  oflen,  either  by  design  or 
thn»iigh  misuke,  given  against  culprits.  It 
should  however  always  be  recollected,  -  that 
this  is  the  only  fallacy  to  which  a  judgment 
founded  upon  direct  evidence  is  liable ;  whereaa 
■  jud^^ment  founded  upon  circumstantial  evidence 
is  liable  not  only  to  this  fallacy  of  false  witnea^ 


75] 


S5  GEORGE  II. 


Trial  qfJawet  Stewart, 


[76 


ilcr  of  Atexander  Hay,  Mm  to  Mr.  Robcirt  Hay 
01*  Nau^btou  \  in  which  the  art^ument  was 
treated  with  great  learuiog,  aud  full  infomia- 
tJoiis  on  the  debate  wrillen  by  the  now  lord 
proaident  of  the  court  of  aeasioii,  who  was  the 
prosecutor,  and  by  the  now  lord  justice* clerk, 
who  was  of  counsel  for  the  pannel.  And  I 
mention  that  case,  which  1  have  lately  peniseil 
in  the  record,  to  rive  your  lordships  and  the 
jury  aspectnenof  a  circumstantiiil  eridenceof 
murder,  that,  in  iu  general  nature  or  com- 
plexion, was  Tery  simUar  to  the  present :  the 
case,  there,  in  short,  was,  that  some  days  be- 
fore the  murder,  Mr.  Hay,  the  deceased,  and 
SlewMt  Abercrombie  the  pannel,  had  been,  in 
company,  when  Hay  complained  of  an  atfront 
given  hun  by  Abercrombie ;    upon  which  no- 

but  also  to  those  of  false  inferenoes-^iu  other 
wordS|  that  direct  evideuoe,  if  true,  cannot  pos- 
sibly mislead,  whereas  circumstantial  erideuce, 
though  in  all  its -parts  most  strictly  true,  may 
yet  mislead  most  grossly  and  most  fai^lly. 

Mr.  Burnett,  in  his  chapter  (sxi)  on  Pre-, 
samptire  EridtAce  (p.  5S8),  notices  that, 

"  Beccaria  mentions  a  singular  practice 
which  preraiM  in  the  parliament  of  Tboulouse 
of  admitting  fanciful  numerical  estimates  of 
inconclusive  circumstances  to  make  out  a  le- 
gal proof;  thus, «  hearsay  might  be  a  quarter ; 
anoUier  hearsay,  perhapa  more  vague,  an  ei^^hth 
of  a  proof;  and  thus,  what  is  no  evidence,  might, 
by  this  artificial  and  absurd  combinatiou,  be 
made  to  amount  to  legal  pi  oof.*' 

It  is  observable,  that  from  about  1690  to 
about  1796  (see  Hume's  Comm.  Trial  for 
Crimes,  chap  10,  vol.  2,  pp.  49—67,)  a  prac- 
tice of  a  nature  somewhat  similar  to  that  of  the 
practice  which  Beccaria  relates  of  the  parlia- 
ment of  Thoulonse,  seems  to  have  prevailed  iu 
the  courts  of  Scotland.  It  is  thus  exhibited 
by  Mr.  Hume  (p.  6  J).  *•*  1  cannot  propo^y 
Miit  to  mcotiiin,  that  this  fashion  of  wei>;hing 
artictdately  the  several  presumptions  in  a  hliel 
proved  the  ground  (at  least  1  can  6ud  no  other 
account  of  it)  of  a  still  more  irregular  ground 
of  judgment,  which  was  thus :  At  the  same 
time,  that  the  whole  presumptions  libelled 
wero  found  jointly  ivlovant  to  infer  the  pan- 
iial*s  guilt  of  the  crime  charged,  S'ld  to  sub- 
iect  him  to  the  full  |iains  of  law ;  separate  re^ 
levaocies  were  fouiid  of  arbitrarv  and  inferior 
piuishmeiit  on  these  prosumptions  severally, 
or  certain  moro  limited  combinations  of  them. 
In  some  situations  a  judgment  of  this  sort  may 
no  doubt  be  proper,  and  suitable  to  the  rase ; 
because  it  may  happco  thai  a  part  onhr  of  the 
particulars  libellea  aro  suffineut,  of  them- 
advea,  to  iafer  aoBie  lower  d^^give  of  guili« 
and  Gonstitnta  an  offence  of  its  own  kind, 
■nch  as  descrvei  ami  may  wamMabljr  roeeire 
r  Iha  liM  wIhgIi  k  in  cowt, 
iTii  belaid  iatlMproiMrforoi.    Ifalib^ati 


thing  then  ensued :  but,  just  before  the  murder, 
which  hapiiened  about  uine  at  night  of  the  6ih 
of  December  1717,  Abercrombie  was  drinking 
in  a  tavern  near  the  head  of  Black-Friars  wynd, 
when  Mr.  Hay  came  into  the  bouse,  and  made 
one  of  the  servants  call  him  out  into  another 
room ;  Abercrombie  went  to  Hay,  leaving  bis 
hat  in  the  room  where  his  company  were; 
they  went  out  together  near  to  a  lamp  at  the 
bead  of  the  wynd,  where  a  scuffle  ensued  be* 
twizt  tliem,  without  either  uf  them  drawing, 
though  they  had  both  swords ;  and,  duri^r 
this  scuffle,  Abercrombie  drew  his  sword,  and 
run  Hay  throogh  the  body,  who  was  heard  orjjrt 
He  was  murdered,  and  bad  got  foal  play,  hm 
sword  not  hating  been  drawn;  and  soon  after 
dropt  down  dead :  Abercrombie  was  still  witbom 

responding  to  these  several  charges,  certainly 
such  of  these  presumptions,  as  amount  to  evi- 
dence of  the  attempt  only,  may  regulariy  be 
sustained  to  infer  some  interior  correction,  m 
well  as  the  charge  of  fire-raising  to  infer  tba 
higher  pains  of  death  and  confisnlion  of  good«« 
But  the  practice  to  which  1  now  allude  was 
something  of  a  quite  itificrent  character,  and 
far  more  difflcult  to  be  defended,  viz.  the  find- 
ing of  a  rdeiancy  for  arbitrary  punisbmeat, 
in  respect  of  each  or  several  of  the  presumptiQas 
of  guilt  related  in  the  libel,  oonsidmag  Ihtai 
as  founds  only  of  suspicion,  or  dreamstaDOSS 
of  evidence,  oF  the  capital  and  only  criiaa  laid 
in  the  libel.  Sti-ange  as  it  may  seem,  tbe  law* 
yers  of  those  times  appear  to  have  reaaoacd 
thus:  that  if  all  the  presumptions  libelled  wa« 
jointly  suficieot  to  convict  the  pannel  of  tbe 
full  charge,  and  to  fori'eit  his  life ;  oeitainly 
each  of  Siese.  of  itself,  implied  at  least  sope 
sort  of  concern  in  the  guQiy  deed,  and  justly 
exposed  him  to  chastisement  less  or  more." 

See  somethiDi;  concerning  circumstantial 
evidence,  vol.  16,  p.  650.  Vol.  17,  p.  14Sa 
See  also  tbe  Case  of  Barbot,  vol.  18.  p.  1S90. 

The  geceral  opinion  in  Scotland  seems  to  be, 
that  Campbell  was  not  killed  by  Allan  Breck 
Stewart,  but  by  Charies  Stewart  the  pamidii 
son,  who  afterwards  became  a  shoe-maker  in 
Edinbuigb,  where  he  died.  It  appeared  to  ma 
that  some  doubt  was  entertained  in  Seodaod 
whcthtT  the  pannel  had  any  partidpalioa  ia 
tbe  slaughter. 

As  to  the  maxim.  "It  is  bctur  that  Vm 
guilty  men  should  escape  than  one  innoosai 
sudvr,"  see  vol.  7,  p.  16S9,  and  particalarly 
sir  Samuel  Komillv*s  admirable  remarlts. 
•«  Unless,"  says  Jo&nsoo.  **  civil  institntMBa 
ensure  protectwo  to  the  innocent,  all  tbe  coa- 
tidence  which  mankicd  shouU  have  in  then 
wtHild  be  k^M.**  See  Bwwetl*s  Life  of  him, 
vol.  il.  p.  4r9,  4to,  1st  ed. 

in  a  note  la  Eunomus,  DiaLnpK  111,  p.  fifiS* 
A  aditsoo,  lufcicacs  v  made  to  •«  aa 


|7T] 


Jhr  Murder* 


by  no  perwn  who  knew 

lira  souffle ;    they  only  saw  ibe 

willitttlt  the  lut  fttub  tlie  other  who  liatl 

■•i,  mfxer  hit  bad  nW^^n  the  woumi,  in> 

nf  rttttrttiui^  to  I  ny  where  he 

Wfiysbftt,  called  <i  lavern,  vrhere 

%»  ti0r?»*t4  a  hut,  iind  utut  directly  to  his 
>nO  iij  bed,  uhere  be  ^vas^  (hat 

lo  Iftw  lib  r  him,  «U  the  circiim* 

inculafiy  set  forth  ;  and,  in  the 

br  the  proseculor,  there  is  the  fol- 

which  1  have  extracted,  and 

b^  leiv«  hm  lo  read  i    **  The  paonel  trusted 

^  -*--  dlaridicsf  af  ih^  nighty  and  secrecy  in 

be  IimI  commited  this  crime,  as  sufficient 

^ jt  bia  fre^m  the  eye  ot  juitice,  and  pre- 

vivt  Ins  |iiiiibhmrtit ;  but  that  same  wise  pro- 

♦  wbioh  to  m«f  times  lea  res  men  to  eate- 

lb«if  wicked  il^ti^nn  in  !iuch  a  manner, 

uQ^sr  tueti  cifcumstancrA,  as  eroboldcns 

to  ipt  rm  with   hopea  of  impanityi  fre- 

I?  brio^ftliuac  very  critiies  to  lijbt»  by  a 

Iff  imcofery  r>t    unforeseen    incidents 

ciremttaces,  concurring:  to  Hx  the  jET^iilt 

lb»  eHin&iMl,  with  more  force  of  con  vie- 

ml  «ii«oglli  of  efidence,  than  two  con- 

could  ^vo»  on  purpose  to 

biee  tbr  world  bow  hltte  darkness  or  se* 

in  b#  r«lied  ^n,  either  as  corers  or 

to  wickedness, 

ihm  case  of  thin  pannet :  had  it  not 

fem  bj  tli«  ««iiall  chance  of  his  leavincf  his  bat 

it  Ibf  riMiii  with  (he  company  where  he  was^ 

»bt«  Hb  came  forth  to  perpetrate  this  crime, 

li  aiiglfl  bate  gone  off  u ndis covered .>- But 

thai  hmII  acodetit,  first  indeed  taken  r.otice  of 

hf  m  ebiUf  who  obBcrred  tbo  bat  in  the  cellar, 

ll  to  bf  Mr.  Abercrombie^s,  fed  thone 

to  a  f^n   (iiAcovery  of  stich  other 

ici'  r;  B apposing' no  p 0- 

ibWt  fmof  et  1  appear,  are  more 

^k§m  taikimT   to  ct^nuernfi  the  panocl  in  the 

fywif  CPvy  jodcrc  and  jury,  and  of  every  per* 

9m  ifci  wfia  wilJ  lav  himself  open  to  receive 

ftwn  trutli."* 


'art! 


^  Tb«  IfiuHoentor  of  relevancy  in  this  Cafie 
if  Abfrrmoiiie  (Fab.  0, 1718)  is  thu^  Lnven  by 
Vr>  Ifttiiw  (Ctttam.  Trial  fur  C  i|f» 

1V*0|.  1,  a.  M.)     '<TlieLor*ls,  the 

■fl  aaaofn  bta  having  about  the  lime  aud 
llbtttalad  ff^irrn  Alexander  May  the  defunct, 
iiiUlfpartt  '  '   weapon,  a  mortal 

I. net  within  a  short 
mU  piinnel  was  art  ami 
infer  the  pain  of  death, 

'    •"  '.  ■  ■    '     ■  "j'.7i, 

■  ivt 

jind  that  the  p^iu- 

.  D  httle  bribre  liie 

tiouie  or  cellar  of 

M-rwod  in  lUo  room 

be  left 

:jy    with 

ccibri  did  lea? e  be* 


lalaanh*^)' 
biflhal  tliTJ' 
ibtilrfiiaei  i^ 
M  Ibp  defii 
arf.  wirti  ibt  .*' 
mm4n,  aM»o  Ift^i 
Ufa.  Liwdmy^  aini 
•ilb  ibna  I  and  il  < 
Ir.  CbieHnr  an^^ 
•bmbaim^  •!»  aaid 


A.  D.  1751 

Ttie  jnry  in  bis  case  were  of  that  dispo»i*1 
tion ;  he  was  convicted  of  the  murder,  and  sni^] 
fercd  for  it. 

Another  remarkable  instance  of  this  natareg J 
was  the  case  of  Alexander  Maccowan,  who  wasl 
trietj  by  two  of  your  lord8hi|j«  here  present,  if  J 
tlie  circuit  held  at  Perth  in  May  1750,  lor  thfl 
must  horrid  murder  of  Margaret  Maclean »  and 
of  Marg-aret  his  own  child  by  her,  an  infant  < 
about  tbi-ee  or  four  years  of  apfe,  committed  in 
Augfusi  1749,  not  far  from  Ci  ief,  in  the  shire  1 1 
Perth,  in  a  ihickei  of  wood,  where  he  lef\  thetrl 
bodies,  after  hnvin^j  carried  away  the  monevi 
and  clothes  which  the  said  Margaret  had  along] 
with  her  in  a  bnndle.  Before  tlie  bodies  wer#| 
discovered,  they  were  m  manfjlid,  that  tbe^l 
oontd  not  bo  known,  otherwise  thau  by  the] 
clothes  which  were  on  the  Iwidy  of  the  woman,] 
which  her  relatinris  could  swear  to:  the  evi-l 
dence  against  the  pannet  was  wholly  circum«| 
stantr^l,  and  consisted  chiefly  of  there  being  | 
found  in  his  possession,  atler  the  murder,  ft] 
pair  of  stockings,  a  linnen  shirt,  and  a  muslin  i 
stock,  that  were  proved  to  have  been  in  possea*! 
'sion  of  the  decea.^ed  when  she  set  out  for  Edin^j 
burgh,  where  she  had  told  her  relations,  sb«  f 
bad  heerf  invited  by  the  pannel  to  go  along, 
with  him,  in  order  to  their  being  marrietl  toge^l 
ther;  and,  upon  this  evidence,  he  was  con* J 
victeil  of  this  double  murder  and  robbery  ;  andf^i 
opon  your  lordships'  sentence,  suffered  lbm\ 
[Kinisbracnt  tiiat  he  so  well  deserved. 

My  lords,  it  apiwars  to  me,  that  the  present] 
case  affords  a  fresh  instance,  similar  to  these  1 1 
hare  mentioned,  of  a  (irovidential  discover?  oM 
circumstances,  serving  to  fix  the  guilt  ot  ac*  f 
cession  to  this  murtler  upon  (he  now  pannel,  j 
notwithstanding  all  ihe  precautions  by  hirtni] 
used  to  conceal  it:  his  enmity  aqfainst  GlentirCh] 
for  ivmoviog  him  from  bis  own  po^ession  inj 
May  1751,  and  dii^continuing  to  employ  Itinil 
in  the  management  oK  the  Ardshiel  estate,  wwirl 
well  known  ;  as  likewise  the  various  efiorts  h^j 
made  to  prevent  the  removing  of  oertiin  tenanti  J 

bind  him  his  hat  in  that  it)om  ivbere  tbe  com- 
pany was,  where  tbe  same  remained  till  af^r  tb^i 
defunct  came  in  woundetl  into  the  cellar,  and  I 
that  two  persons  were  seen  come  out  of  thai 
said  cellar  ;  and  after  they  came  otit,  wera  j 
seen  go  on  ijuarretUng,  one  of  whom  wanted  ] 
his  hat,  and  had  a  light  or  brown  coloured  coaf^  J 
with  clt'ar  buttons  upon  it,  and  that  ttie  pannel  1 
had  on  him  such  a  coat  that  night,  and  that  the  I 
[lerson  without  his  hat,  and  with  such  a  coat  i 
said  is,  was  he  thnt  gave  the  other  a  stab  or] 
wound  ;  and  that  the  person  wounded,  and  re*  ' 
turnincr  back  to  tbe  said  cellar,  were  [So  Mr.* 
H  ume]  the  defunct,  and  soon  after  of  his  wonn^  J 
die<l ;  and  the  pannel,  about  that  time,  called  it  f 
Mrs,  Johnsoo's  house  in  Niddric's  Wynd,] 
without  his  bat,  and  there  borrowed  one,  and] 
soon  ihereaAer  was  seized  in  bir  owti  bocne^J 
and  a  ^v  ord  found  by  hrm  in  tbe  room,  f 
and  Hith  fresh  blood  tn  Ihe  hollow  parts  of  it,  all  I 
jointly  relevant  to  lufer  the  forc«<ariI  pains,  and  re*  ^ 
pel  the  baill  defutices  proponetl  for  tbe  panaelK" 
0 


79]  25  GEORGE  IL 

fiF  Ardshiel  io  the  month  of  May  last;  and  also 
JUis  iDtiroacy  and  close  connelion  with  Allan 
Breck  Stewcrt,  who  disappeared  abruptly  im- 
mediately after  the  murder,  and  to  whom  the 
Toioe  of  tlie  whole  country  imputed  the  actual 
murder  itself:  but  as,  wlien  that  happened, 
this  panoel  was  at  his  own  house,  -at  the  dis- 
tance 6f  one  mile  from  the  place  of  the  murder, 
the  more  direct  and  immediate  etidence  of  his 
accession  to  it  was  long^  concealed:  his  wife 
and  his  daughter  being  examined  upon  oath 
before  tiie  sheriff  depute  of  this  couutv,  on  the 
S2d  and  S25th  of  May  last,  touching,  what  they 
knew  concerning  the  murder,  de|K»ed,  That 
Breck  Stewart  left  the  pannel's  house  oq  the 
morning  of  Tuesday  the  13th  of  May,  dressed 
in  bis  French  clothes,  and  that  the  paonel  had 
no  such  black  or  dark -coloured  short  coat,  as 
.Breck  had  truly  \e(i  his  house  dressed  in,  for 
three  quarters  of  a  year  before  that  time ;  but 
at  length,  above  a  month  after  his  examination, 
namely,  on  the  SOth  of  June  last,  Alexander 
Stewart  the  packman,  being  examined  before 
the  sheriff- substitute  at  Fort  William,  and  after 
being  confronted  with  a  friend  of  his  own,  ttf 
whoui  he  had  l>een  muttering  some  part  of  the 
truth,  spoke  out  the  whole  truth,  as  it  is  set 
forth  in  the  libel ;  and  particularly,  that  from 
this  very  wife  of  the  paonel  he  received,  on  the 
evening  of  Saturday  the  16th,  at  the  pannel's 
house,  Allan  Breck*s  French  clothes,  to  be 
carripd  to  him  at  the  place  of  his  retreat,  toge- 
ther with  the  five  guineas,  which  the  pannel 
had  been  at  great  pains  to  scrape  together,  after 
sending  the  |»ckuian  express,  for  that  purpose, 
to  his  friend  William  Stewart  at  Fort  William, 
and  which  he  sent  to  Breck  at  the  place  of  his 
retreat,  with  a  declared  intent  to  put  him  in 
condition  to  make  his  escape,  for  that  be  mast 
be  suspected  of  the  murder:  (his  discovery 'Vtras 
the  first  thread  which  the  kindred  of  the  de- 
ceased got  hold  of  to  lead  them  to  a  more  full 
detection ;  and  was  afterwards  confirmed  by 
the  examination  of  the  bouman,  who  told  the 

Earticulars  in  the  libel  recited,  and  about  whose 
ouse  the  very  clothes  were  found,  the  pro- 
perty of  the  pannel,  which  breck  had  brought 
from  the  pannel's,  and  left  with  the  bouman. 

And  as  for  the  importance  of  these  particu- 
lar discoveries,  which  the  pannel's  counsel 
have  endeavoured  to  diminish  iu  the  manner 
that  circumstantial  evidence  is  always  im- 
pugned, by  observing  that  each  article  taken  by 
Itself  is  inconclusive;  1  may  readily  admit 
this,  and  yet,  from  the  result  of  the  whole  cir- 
cumstances, there  may  be  convincing  and  irre- 
sistible evidence.  And  to  meution,  at  present, 
only  these  two  material  ones,  of  the  clothes 
iumished,  and  the  money  SLM»t  to  Breck 
Stewart,  before  and  after  the  murder  respec- 
tively ;  i  do  not  say,  that  if  a  man  lends  his 
neighbour  a  coat,  in  which  the  borrower  being 
dressed,  two  or  three  days  after  commits  a  mur- 
der of  a  person  who  was  his  own  enemy  in 
liirie  past,  that  this  will  afford  any  evidence  of 
pri.vitv,  or  aooetsion  to  that  marder  in  the  len* 
der  or  the  coat;  nmther  do  i  say,  that  if  a 


Trial  of  James  Ste%vart, 


,[80 


man's  friend  or  relation-  has  unfortanatcly 
committed  a  murder,  and  one  shall  aid  him,  by 
money,  or  otherwise,  to  make  bis  escape,  tliat 
this  will  render  such  friend  accessary  to,  or 
chargeable  with  the  crime  of  murder,  though 
he  is  doubtless  guilty  of  an  offence  or  misde- 
meanor in  its  own  kind;*  but  the  force  of 
tliese  united  circumstances  in  the  present  case, 
with  the  others  charged  in  the  libel  against  this 
pannel,  consists  in  the  connexion  of  the  whole 
together.  It  was  the  pannel's  proper  quarrel 
that  retidered  the  deceu  izi\  obnoxious  to  Oreck 
Stewart;  the  pannel  had  discovered  and  ex- 

f tressed  his  entnity  against  the  deceased,  and 
lad  utiered  threatenings  against  his  life;  Brack 
Stewart,  his  intimate  friend,  was  a  fit  instru- 
ment for  such  wicked  purpose  ;  he  had  es- 
poused all  the  pannel's.  opinious  .and  disposi- 
tions towards  Glenure ;  he  was,  himself.  Ml 
in  condition  to  remain  in  this  country,  and  was 
already  provided  with  the  means  of  subeistciMi 
in  foreign  service  ;  and  to  this  man  it  was,  io 
the  very  heat  of  a  contest  with  the  deoeassd 
about  removing  certain  tenants  which  this  pea- 
nel  had  put  in,  that  he  furnished  the  dress,  sad, 
as  we  likewise  believe,  the  arms  wherewith  he 
per|>etrated  this  foul  murder  ;  '  immediately 
after  which  he  retires  to  a  desert  place,  oAt  nr 
off,  there  to  wait  for  a  supply  of  monej  tfaiA 
was  to  be  sent  him ;  anil  it  is  especially  to  be 
remarked  by  your  lordships,  and  the  jury,  tha^ 
as  the  libel  bears,  at  this  place,  Breck  told  the 
bouman,  that  he  must  go  to  Fort- William  mA 
a  letter  to  William  Stewart,  merchant  then^ 
who  he  said  would  give  him  money  npon  re- 
ceipt of  the  letter ;  and  this  Williain  Stewart 
was  ar.other  intimate  friend  of  the  pannd*^ 
and  the  very  person  to  whom,  the  day  after  the 
murderi  the  panuel  sent  the  packman  exf 
to  get  five  guineas  for  the  use  of  Breck, 
was  alMut  to  leave  the  country.  This  dro 
stance  affords  a  demonstration  of  a  cuncnti^  ^ 
twixt  the  pannel  and  Breck  before  they  hH 
parted  at  the  pannePs  house  on  the  Monday 
night,  or  Tuesday  morning  preceding  ;'-ata 
which  the  pannel  allows  he  never  saw  Brack;  ) 
for  how  otherwise  could  Breck  have  known, 
that,  for  such  a  small  sum  as  he  wanted,  ths 
pannel  was  to  have  recourse  to  this  Willisa 
Stewart,  who  lived  twenty  miles  distant  fraa 
him  ?  And  this  circumstance  serves  to  ooa* 
nect  the  facts  which  immediately  preoedsd 
the  munler,  with  those  which  ictmediately  en* 
sued  it. 

But  I  am  going  too  far  at  present,  on  the  co»- 
siderations  that  will  be  proper  for  the  jury  after 

the  proof  shall  have  been  brought  before  l*^ 

and  shall  now  conclude,  hoping  it  will 
to  your  lordship.s,  that  no  sufficient  of 
hath  l>een  offered  on  the  part  of  the 
why  his  trial  should  not  proceed;   and  i 
you  will  make  such  interlocutor  as,  upon  1 
supposition,  the  counsel  on  both  t  ' 
to  be  agreed  iu.  i 

.IM 

*  See  Burnett  on  theCriminilXAWiffl 
land,  pp.  S86,  et  Kq. 


mA .  • 


"J 


'  Mmdcr* 


ffftj^llt^  fbr  the  Fannel. 

Lord  Justice* General^ — I  appear  as 
i6r  the  prboner  al  the  bar  :  and,  as  1 
ibVe  tkis  trial  muftt  draw  oat  ta  a  very 
laBgttt^  aritl  occa^jioti  a  \Sff^i  ileat  of 
InxiJile  to  your  loid^htpfl,  ami  the 
Jl  riuieavour,  in  wbat  1  am  to  ofler« 
rvpetJtion  ;  and  I  »baJI  cotifine  my  sett' 
1i«ii«kBcr«BUoos«ft  D^oflt  afl'ected  my  own 
miti  iftfio  reading  the  inriictment,  u^fnch  la 
IkiMly  rsic  ty  which  1  can  judge  of  their 
^ymniiii  And,  3iily«  1  shall  offer  a  few 
ftMftlwKbocia  by  way  of  reply  to  what  has 
liM  Mid  by  my  lord  ailrocaie  ami  hb  assist- 
aaiiL  in  tapport  of  the  indictment. 

The  pri^oiier  is  charj^ert  hetbre  your  Un\- 
d»lpl  at  accessary,  art  and  part  of  t lie  murder 
(i(tlif  Ute  Mr.  Campbell  of  Glenure ;  a  crime 
if  to  |i»al  and  black  a  oalure,  and  attended  with 
Msb  fiafttcular  circumHtances,  as  has  not  ouly 
jttiUy  rjccited  the  atlention  of  the  puhliCf  but 
alia  a  ature  than  ordiuary  keenness  iind  ardour 
^tbe  aameruuf  friends  aod  relations  of  the 

I,  in  carrying  oQthi«i  prosecution. 
1  would  not  chiiae  tn  make  any  reOei'tions 
1^  tkeir  criuduct.  1  sincerely  sympathize 
vilh  tbefn  for  their  locsy  and  fe*^!  ilte  full  force 
</ their  just  revea^  againal  the  euitly  person, 
vbtefar  be  is.  But.  toy  Inrd,  in  such  a  case, 
IbifiaMMm  which  we  at  iirst  cherish  as  just 
mi  tiaooiirable,  may  get  the  better  of  us  ;  and 
if  Ibe  r«;a\niiutd  of  reason  and  strict  honour  are 
tot  H^u{ivt\.  will  inscnsibty  rise  into  raf^Ci  and 

ti  >  into  measures  inconsjMtent  wilb 

^*  diclalea  of  cool  humanity. 

My  lird,  it  is  in  iucti  circumsiances  as  these, 
tbiA  fltcQ  the  innocent  may  sometimes  be 
kitMigkt  iuto  dao^r.  And  in  surli  circum- 
ijiofaa  ilbecomefl  the  duty,  and  an  honourabte 
|ttn  of  the  duty  of  one  of  my  pnifession,  lo 
afi}iear  for  the  accused,  to  assist  him  in  his 
|bbL  defetice,  and  to  obviate,  liy  all  the  reme- 
ilei  irbicb  the  law  ha^i  provided  for  the  secn- 
iky  of  inooceDce,  any  di  sad  rant  age  he  may 
balrougbt  under,  by  public  prejudice,  or  hv 
ikcaumber,  power,  or  superior  address  of  h^ 
pntire  prosecutors. 

This  cooaideraiion  determined  me  to  appear 
iitkii  trial,  and  to  give  my  poor  assistance  in 
dtltnoe  of  the  prisoner ;  to  whicb  i  was 
irompted  by  my  lord  advocate  himself, 
the  generosity  so  far  to  interest  hicO' 
ttflnlbe  panuel«  as  to  rt^ctHnmend  it  to  me, 
■WMitothera,  to  appear  iu  hisdt:fence. 

Mm  lirstf  I  observe,  that  it  is  admitted  by 
Ikt  pfoateutors  in  I  heir  indictment,  that  the 
Mw^NU  munler  therein  charfired  was  perpe- 
Saled  by  one  person,  to  wit,  by  Allan  Breck 
ik.N  <  !  (ukin;;  liim  lo  be  the  guilty  per- 

iDii  no  doubt<,  justly  forfeited  to  pub- 

tuce,  inough  in  the  mean  time  be  may 
scaped  frum  the  eaceculion  of  the  law. 
first  <|uestioii  therefore  that  must  naturally 
■Qcor,  is,  %ih!Lture  the  circumstances  in  this 
«He,  whicli  should  lead  your  lordships  or  the 
|vy  tii  beUeirei  thai  any  other  peivofi  than 


A.D,  175fc 

Altaii  Breck,  and  particularly  the  prisoner  all 
the  bar,  was  also  guilty  of  this  foul  «nd  d«^ 
testable  murder  ? 

It  is  a  rule  in  philosophy,  in  all  our  in* 

quiries  into  natural  causes  and  e^Vcts,  io  resii 
satisfied  tto  t^oou  as  one  cause  or  principle  is  dia»j 
cotered,  suificienl  for  answering  and  solviu^I 
alt  appearances  in  tlie  effect.  This  rule,  I  am-] 
sure,  with  great  propriety  may,  and  ought  t^l 
be  applied  to  any  moral  or  judicial  inquiry,  | 
such  as  the  present.  If  u  crime  is  committed,  j 
there  mu!»t,  no  drmbt,  be  a  criminal ;  and  if] 
the  crime  itself,  or  the  circumstances  whicb  at- J 
tended  the  commieisiou  of  it,  are  of  such  a  ii»*  | 
ture«  as  must  uect^ssarily  infer  the  aid  and  ) 
sisluifce  of  others  towards  the  commission  of  itg  ! 
as  the  appearances  in  such  case  will  not  be  an*  | 
swered  by  tbe  discovery  of  one  guiltv  person^  j 
the  j»ind  will  remain  unsatisfied  till  further  1 
discovery  is  made  of  tbe  supposed  partners  oCJ 
the  crime. 

But,  my  turd,  where  the  guiU  of  one  wiil 
account  for  the  whole  appearances,  for  everjf  1 
circumstance  connected  with  the  crime,  (  aji-  i 

firehend  it  as  a  rule  in  morals,  it  is  a  rule  ia  j 
aw,  aud  in  sound  reasoui  to  presume,  that  nc»  j 
other  but  that  one  person  was  cuncerned  In  thft  ] 
commission  of  the  crime. 

This  presumption  is  founded  in  tlie  resped  j 
which   we  owe  to  human  nature.     For,  my 
lord,  wicked  anil  earriipted  as  mankind  are*  | 
thank    G^hI,  a   omrderer,  a   %vilful   del  iterate  • 
raurdeier  i^  si  ill  a  monster  in  the  species  ;  and 
it  is  undutiful  in  its,  and  against  all  the  rules  of 
riifbt  rea^ou,  to  carry  our  suspicions,  far  mor#:| 
our  prejuilices,  further  than  the  corpus  deikti^ 
aud  the  circumstances  attending  it,  do  necessa- 
rily point  out. 

From  this  couMderation,  I  hope,  ibe  prisoner  \ 
comes  tu  your  lurdsUip.^^  bar,  atlendril  aud  aided  - 
not  only  by  the  general,  legal  presumpiion  of  j 
innocence,  but  with  this  other  more  special 
presumption,  that  no  other  person  i«as  coo^ 
cerned  in  this  horrid  murder  but  that  one  uerson, 
whoever  he  was,  who  gave  tbe  fatal  siiot  b' 
ivhich  Glenure  died.     And  this  prt^sunijition 
dotier  myself^  will  be  present  with  joni-  lord* 
ship,  an3  in  ihe  mind  of  every  juryman,  tiH  j 
contrary  proof  and  evulence  shall  beat  ti  outs 
whicb  we  tlatter  ourselvef;  will  be  so  far  frooi 
bappifuing,  that,  on  the  contrary,  iu  the  course 
of  tbe  evidence,  it  wili  gather  strength,  and  al 
last  terminate  in  that  issue,  which   from  the 
huly  providence  of  God,  theinooceot  may  with 
confidence  expect. 

My  lord,  it  is  not  tny  intention  to  anticipate, 
or  to  argue  upon  evidence  whicli  has  not  yet 
been  brought:  but,  as  my  Lord  Advocate  hat 
set  forth,  in  his  printeii  indictment,  a  va* 
riety  of  circumstances,  fr«im  which  he  -wuuld 
infer  the  prisoner's  aoceaaion  to  this  murder  ; 
I  must  beg  leave  to  take  notice  of  some  of  ihctn. 
in  order,  if  possiible,  to  dispel  that  popular  aud 
illegal  prejudice,  which  L  observe  in  mostcasea^ 
eapeciaJly  in  the  more  atrocious  crimes,  doet 
attend  the  unhappy  person  who  is  brought  ti» 
your  lordships*  bar,  ^ 

G 


rf' 


S3]  S5  GEORGE  II. 

When  the  miud  it  enraged  to  a  high  de- 
gree, it  naturally  seeks  after,  and  is  impa- 
tient to  find,  an  object  tor  its  resentment. 
The  prisoner  first  occurs,  and  there  we  are  too 
apt  to  fix  our  opinion  of  guilt,  and  alongst 
with  it  our  resentment ;  esiiecially  when  our 
confidence  in  the  public  prosecutor  is  so  great, 
as  it  justly  is  at  present  in  the  honourable  gen- 
tleman who  fills  that  office. 
■  This,  if  I  mistake  not,  is  the  source  of  po- 
pular prejudice  against  the  imhappy  prisoner. 
All  of  us  are  subject  to  it,  because  it  arises  from, 
or  at  least  is  incident  to  human  nature ;  but 
however  innocent  it  may  be  in  the  crowd  that 
surrounds  us,  it  is  dancrerous,  it  is  criminal,  if 
received  and  entertained  in  the  mind  of  a  jury- 
man. For  their  sakes,  therefore,  1  will  beg 
leave  to  make  a  few  observations  upon  the  facts 
charged  in  the  indictment,  that  so  the  jury, 
ivho  for  some  time  have  had  the  printed  indict- 
ment in  their  hands^  mav,  before  they  proceed 
to  trial,  be  also  iiossessed  of  such  facts  and  ob- 
servations for  thepannel,  as  will,  if  attended  to, 
entirely  take  off  the  force  of  the  circumstances 
ivhich  are  charged  against  him. 

And  first,  it  will  be  observed,  that  the  murder 
is  not  laid  to  have  been  committed  from  sudden 
BassioD,  or  chaud  mellti,  as  the  law  expresses  it, 
Dul  to  have  been  premeditated  and  resolved 
upon  for  some  days  before  it  was  committe<l. 
JNow,  to  render  malice  of  so  high  a  nature 
probable,  tome  very  strong  ground  or  cause 
ought  to  have  been  assigned  for  it ;  and  what 
cause  is  here  mentioned?  Why,  1st,  Because 
^tenure  bad  accepted  of  a  factory  from  the 
crown  upon  the  forfeited  estate  of  Ardshiel. 
5dly,  Because  Glenure  had  removed  thepannel 
Irom  the  farm  of  Glenduror  at  ^Vhitsunday 
1751.  And  lastly.  Because  he  was  proceeding 
to  remove  certain  other  of  the  tenants  of  Ard- 
ahiel,  at  the  Whiisunday  1762. 

The  first  of  these  could  not  be  the  ground  of 
the  resentment  which  gave  occasion  to  the  mur- 
der ;  because  Glenure  had  been  in  that  office 
for  more  than  three  years  before  the  mordtrr ; 
during  the  greatest  part  of  which  time,  the 
pannel  and  he  lived  in  friendship  and  intimacy 
together ;  as  will  be  clearly  proved  by  a  long 
course  of  letters  which  passed  lietwixt  them. 
The  pannel's  own  removal  from  Glenduror 
could  as  little  be  the  cause  of  such  prepense 
malice ;  for  the  removal  was  voluntary,  and 
the  possession  yielded  to  the  succeeding  tenant, 
in  consequence  of  a  previous  concert  between 
the  pannel  and  Glenure.  And  far  less  could 
the  intended  removal  of  the  other  tenants  at 
Whitsunday  last,  give  occasion  to  the  conspi- 
racy and  BMinler  charged  a^inst  the  pannel. 
Such  deep  resentraeiit  could  not  have  ariteo 
from  so  trifling  a  cause  in  the  mind  even  of  a 
wicked  mas,  mnch  leai  one  of  the  pannel's  dis- 
position and  diarader. 

Sdly,  The  drcomttance  of  Allan  Breck*a 
having  chai^  his  dochcfl  at  the  paonert 
boute  before  the  murder,  though  it  baa  been 
chiefly  intisted  oo  for  inferrinff  the  pamiert 
MCWOD 10  the  mardcr,  ii  cqoilTy ' 


Trial  qfjamei  Stecoarif 


£84 


Allan  Brock's  situation,  as  a  deserter  trom  hit 
majesty's  service  to  the  rebeb,  and  after  wards 
to  the  service  of  France,  made  it  necessary,  so 
often  as  he  came  into  this  country,  to  skulk 
amongst  his  friends,  of  which  the  pannel  unfor- 
tunately happened  to  be  one.  It  will  be  proveo, 
that  for  this  purpose,  he  used  to  lay  aside  hit 
French  dress,  and  borrow  the  dress  of  the  coun- 
try, such  as  is  described  in  the  indictment,  from 
any  of  his  friends,  where  he  happened  to  visit 
or  reside  ;  and  that  he  had  gone  about  from 
house  to  house,  changing  his  dresi  in  tbit  man- 
ner, since  the  beginning  of  March  last,  and 
]iarticu1arly  had  been  furnished  with  such 
change  of  dress  at  the  pannel*t  house,  about 
the  beginning  of  April,  where  he  bapnened  to 
be  for  a  night  or  two,  in  the  course  of  bu  visitt 
through  the  country. 

Mv  lord,  if  these  facts  are  proven,  it  is  im- 
possible any  weight  can  be  laid  upon  the  cir- 
cumstance of  his  having  also  changed  bitdrttt 
at  the  paunePs  house,  upon  the  Monday  and 
Tuesday  before  the  muitler  happened.  If  a 
disguise  had  been  intended,  would  the  paiuiel, 
who  is  a4mtUed  to  be  a  man  of  more  than  ordi- 
nary discernment,  have  furnished  hit  own 
clothes,  which  were  known  to  the  whole  neigh- 
bourhood, and  by  which,  if  the  murderer  was 
apprehended,  he  hirosell  behoved  infiillibly  to 
be  discovered  ?  Would  he  have  dreated  up  tbo 
assassin  before  his  numerous  family  and  ser- 
vants, in  the  very  dress  which  was  toaerve  fw 
his  disguise,  two  different  days  before  the  plot 
was  to  be  executed  ?  Or  would  he  hoTe  allowed  * 
him  to  traverse  the  countr}*  for  some  milci 
round,  from  Tuesday  when  he  lef^  the  pannel'i^ 
till  Thursday  when  the  murder  was  committed, 
in  the  very  dress  which  was  intended  to  dis- 
guise and  conceal  him  ?  Snch  a  conduct  it  un- 
accountable, and  cannot  he  ascribed  to  the  pan- 
nel, whom  the  prosecutors  themseWet  repretant 
as  a  man  of  the  deepest  desij^^n  and  artifice. 

BIy  loni,  the  next  material  circumstance  in 
the  indictment,  which  I  would  beg  leave  to 
take  notice  of  for  the  sake  of  the  Jury,  is  the 
correspondence  which  passed  betwixt  the  pan- 
nel and  Allan  Breck  the  supposed  murdeier, 
afW  his  retreat  to  Rualisnacoan. 

This  circumstance,  1  own,  at  first  tigbt| 
seems  to  carry  great  weight  against  the  pannol, 
because  it  imports  not  only  aid  and  astistanoo 
^iven  by  the  pannel  to  the  supposed  murderer 
in  order  to  enable  him  to  make  his  escape,  hoi 
also  a  previous  knowleiige  of  the  place  to  which 
he  retired  immediately  at\er  committing  tlm 
murder.  But  your  lordships  and  the  jury  have 
heard  how  ihe  force  of  this  circumstance  is 
taken  off.  The  pannel  knew  noihing  of  the 
place  of  Allan  Breck*s  retreat  till  the  iky  after 
the  murder,  when  he  received  a  message  from 
him  by  Donald  Stewart,  giving  him  notice  of 
the  place  to  which  he  had  retired,  and  bciccch 
infp  tlie  pannel  to  send  him  a  small  supply  cf 
money,  in  order  to  carry  him  off  the  counliy. 
This  message  the  pannd  has  undertaken,  and 
hopes  to  prove  by  a  train  of  unqueaiionaUe  eri* 
deuces  ialif bethoUbenbiclobcingniilii* 


85J 


Jot  Murder* 


Mif  fHQf  lilt  flu^.  It  will  M  ODce  strip  llie  id- 
^JHMOlQf  tSie  only  ci  re  ti  instance  id  it,  wUich 
H^^bli.  ai  A  previoas  conB^iracy  hetvrixt  the 
H^^^il  ia4  All«a  Bf«Gk  ihe  supposed  murderer, 

■  ~  kmi  jrfMil,  my  lord,  iudenenilant  ol'  tbe 
,       fiOiCwWdb  l»  proposed  in  he  biou;jlit  bv  llie 

■  p««ii«l,  it  oniiot  but  appear  unaccountaGle  to 
B  yoitr  londibJ|ii  ftnd  the  jury,  thot  a  p^rsun  of 
\        UisiBSBCl*s  imgiicity,  li'  be  had  beeti  in  con- 

Albu  Ilreck  for  KuverJil  d^ys  befure 
oi'tlie  murder,  should  not  have 
■eeenary  means  of  Breck'ai 
ttope  liU  after  the  crime  wa«  commit led^ 
whm  ht  GMtld  uo  tuuger  curre^pond  with  him, 
williMit  ilir  intcrpoflition  ut'  otlieici,  aud  coa- 
lniattlJy  without  th^  hazard  of  a  difldovery, 
IW  Mtad  eonld  have  h:id  no  difiicuhy  to 
liate  rtmutlicU  Allan  Breck  with  a  hUle  money 

I  Mm  tll#  OMDmtiaioo  of  the  murder,  in  order 
to  (nalbr  kM  tacape  iuuncdiately.  He  kne^ 
Ikvek^s  ciretim«ttAnc^'i,  Rtid  that  he  hud  bo- 
llMBg  IQ  CMT  <  >uoLry,  aud  Breck 

iMcJd   fiPt  ;  in   such   a  serf  ice 

willNBt  Pierv I ui^  tioin  iih  employer  Ihe  nc- 
€mmrf  wof^UAWT  bis  o«?ii  si^tety  ;  and  sup- 
IMurt^  fiuuiel  had  not  been  in  caib  ujmii 
iW  BlAOiliy,  when  they  last  parted,  yet  he 
«pn14  bata  ukia  care  be  lore  the  Friday  lo 
kart'  kveo  ai^fficieoily  iirofidi^^d  for  answering 
fircck^  dcviajids.  4ml  yet,  upon  the  Friday 
ate  iba  raiirdery  i»ben  the  message  cdine 
Orwck,  we  Hcid  fVoni  the  itidictment, 
ibft  yaAoei  sr  d  inlo  Fort- 

p  ftilfiflAii,  «t  a  co'>  ace  from  his 

in   oriitu    lo    liorrtm   the  trttle  ol' 
which  wa^  wauled,  and  scut  thedav 

k. 

Hmm  :  n  as  to  blame  in  sendinj^ 

wamrjUt  Muti  tiieck,  who  whs  his  rilaiioiiy 
nikarf  k«eii  hi)^  ward,  in  order  lo  euahk'  him 

to  ttlba  UtK  '  '  <      '!-upon  the  opinion 

kailMAln4^  Jty  or  iiHioceot  ol* 

•e*»r*  -  fv.itwas 

•  liM  4  law; 

a  Sfliifffsr,  Uiough  koowinf^ly,  will  not,  iu 
ka,  ttf  la  ll»e  nature  of  the  ihtnyf,  infer  acce^* 
iiB  In  tlhc  Hiurder,  unless  A  liad  been  pre* 
ttPBlf  promt^rtl  an  on  encourai^emeut  to  ihe 
'mm  0f  the  mnrdv-r,  wbicn,  from  what 
mMf  appear*  covld  not  hare  been  the 

^Kk  regmrd  to  the  threaieniogs,  which  is 
^•ly  rrmainlni^  bmnch  «if  the  indictment  of 
aay  ''vicl*^  aifitnat  Ihe  pnnncl,  1  could  hate 
*«M  »|  lord  advticaie  had  been  so  gt^od^  as 
lilmaOMltaccoded  upon  the  purticuLr  ex- 
fMMOt,  ai»d  ijpnii    '  r  f  H  when 

•ai  •!!«»  tb««9  v«  a  in  not 

litr,  it  ii  Miipoaail  <i  uiake  any 

ilkv  aimtr  bat  ..  l  oi  this  pari 

i^tkaHlar]|»e  :   -'"  "mv  l»e  never 

aiMlatftvd  II  '   hopes, 

ili  !•   prr»i  nljj^ht  nf 

Mf  tA^  iittii^  which  cotitd 

ii^avt  ft  ng  to  take  away 

lhMt«l  OB  iiiooMBtii  gvniieiiiaQ* 


A.  a  1752.  [8(J 

My  Tonl,  hating'  touched  upon  a  few  of  the 
roost  materia)  circumstaoces  in  the  indictment, 
which  1  thought  material  for  the  jury  to  hara 
iu  their  view,  in  order  to  direct  their  attentioo, 
during  the  course  of  the  et idence^  to  the  phui 
of  the  pannel*s  defence,  I  shall  next  proceed 
to  what  at  present  falls  more  immediately 
under  your  lordship^i  consideration,  and  that 
is,  the  olijection  which  has  been  moved  to  the 
competency  of  thi^  prosecution. 

it  has  Wn  objected,  that  the  indictmeui 
does  not  chari^c  ihe  panoel  ojt  a  principal  in 
the  murder  of  Glenure,  but  only  as  a  remota 
ticcessary,  by  previous  counsel,  and  subsequent 
aid  and  assistance  given  to  the  murderer  in  bia 
escape ;  and  that  though  such  accessary  19 
equally  criminsl  and  punishable  with  the  prin* 
cipal,  yet  that  be  cannot  be  brought  to  tria' 
till  the  principal  be  tirst  tried  and  convicted. 

This  objection  was  stated  to  your  lordship* 
Upon  the  authority  of  the  old  books  of  our 
liiw,  sir  George  Mackenzie,  our  only  auihor 
upon  crimes,  and  of  several  of  the  fureig^ii 
doctors  who  treat  of  this  subject;  and,  wjiU 
your  lordships^  permission,  l|i%ill  read  some  of 
the  passages  upon  wliioh  ihe  objection  ra 
founded,  aa  1  have  taken  ihein  down  t'rom  the 
books. 

Ileg*  Maj.  lib«  4.  cap.  '26,  de  ordine  cogni'- 
tionis  in  criminihub, — **  Si  dii«l  hnmineii  IWiint 
implaciiati,  unusde  nrincipali  fuitn,  et  alter  de 
prsecepto,  primO  denet  ilie  qui  defumatur  de 
factfj,  quam  ille  qui  factam  illud  coaimitti 
priecepit,  implacilari,'* 

To  whicli  the  learned  sir  John  Skeene  sub^ 
joins  the  following  aonotatioo  ;  **  Complices^ 
criminitf  non  posi^unt  accusari  ante  principalem 
malefactorem,  nam  sicut  remoio  priucipati 
removetur  accesaorium,  ita  absoluto  malefac- 
toi-e  ahsulvuntur  complices  et  consenlientes.** 

Quoniam  attachiumenta,  cop.  83,  de  recep^ 
iatione  latrocinii. — *'  NuUuh  delaoiatus  tan«J 
qunm  receptator  latrncinii  deliet  puniri,  aut^ 
i|nHin  ma)efd{'ti»r  fuerit  cnnvtctu^  vel  attayiitu 
de  tairoiiniofllo ;  et  hinc  Bet  ut  dicitnr  consen^ 
tientes  et  at;ente«  pfiripcenS  puntuntur.'* 

Statuta  Davidis  2di,  cap.  IC^,  Ctimplices  nod 
debeni  puniri  »nte  (>rincipalem  malefactorem^ 
— ''  Ordinatum  fuil  coram  rege  in  pleno  par<9l 
Mamento  apud  JScunam  per  regem  et  communi*! 
tatem  re(;n),  tpiod  supen»edendum  est  de  recep 
tat  ore  alicujus  malefactor  is  judicaodi  sive  ap« 
pellan<h,  quousque  receplatusjudicelor.     Et  4 
rec^ptatUH  quietus  fuerit,  receptator  quielu^  alt] 
sine  aliqu&  atift  assist.    Si  aut4?m   receptatni  | 
damnatus  fuent,  receptator  hak>et  a»;<i!!<)«iiK 

And,  agrciahle  lo  the  doctrine  laid  down  i||| 
these  old  Statutes,  sir  Geiirge  Mockeozte,  ii%| 
his  Criminab,  tit.  Art  and  Part,  §  9,  gives  it  j 
his  opinion,  *'  That  the  chtet  »ctor  must 
fiFMi  discussed,  and  either  found  guilty  or  aa*l 
soilzied^  before  such  as  are  accessary  can  h#1 
pursued.'*  M'hich  he  supports  not  only  bjfj 
the  auihonty  ol  the  old  books  of  our  law,  «(•! 
ready  quoted,  but  also  of  inaoy  of  the  foreigi|J 
doctors. 

It  ii  trae,  lie  adds,  thitt  ootwithitaading 


87] 


t5'GEORG£  II. 


Trial  tfJamti  Sttncart, 


tss 


^liat  U'tfifTG  hid  doirn,  Charles  Rotortson 
wa«  trivMl  bHorc  the  justices  asaccessar}'  in  the 
^stin^r  <Ni^vn  a  liiuisr,  lliouuh  his  aons  and 
M'rrantji  who  cast  ihmn  ihe  same,  escaped,  aud 
irrre  not  tricHl.  Bat  sir  Gtnir^e  is  tar  from 
iip|mnin)(  of  that  ilecisiun,  ami  ui^s  many 
stronc:  reasons  ajrainst  it«  and  io  8U|iport  ot'the 
doctrine  he  had  t'orinerly  laid  duwD. 

The  fiirt'ijni  distort*  also  have  generally 
pMio  into  thi«  distinction,  with  rps|iect  to  the 
ftrdcr  ot  try  inj;  the  principal  an  J  acct'ssary .  I 
$hat!  ontv'qiHito  ihc  words  of  Juhus  Clam«, 
qimM  00,  u.  6  who  hya  it  down  as  a  rule. 
**  Uiundit  pr^Hvelitur  contra  aliqueoi  tanquam 
qiioti  prar<iiicrit  auxdinin  delicto,  debet  primo 
in  pf\H-t*s«ii  con^lare  principaloiu  ddiquisac." 

To  .ill  these  allow  me  lo  add  the  authority  of 
the  |4««  of  Kn);land.  which,  upoo  a  point  of 
this  nature,  supitosin^  it  not  Hxed  by  any 
ftatutc  or  ciTslom  of  our  own,  will,  no  ilonli. 
have  ^rt*4tcr  Weight  wiih  your  lordships  than 
Iho  opinitHis  of  any  private'lawycrs. 

Ttiussir  ^Uiibc-w  Ha1e«  in  tiis  Pleas  of  the 
Crown,  ch,  ,^7.  conceniinij  the  ordtr  of  pro- 
c^etlic];  )i:aiufti  Ace<es«ario«,  lays  down  the  to!-  ' 
Towai;  pvvp '«>iioi!S.  as  tixevl  rules  in  the  law  of: 
Fnc^^nd :  ••  The  acivssary  m.»y  be  inflicted  | 
in  uie  same  in\{:ctaie.it  with  the  pr:uci|>al,  and  | 
Ihai  \*  I  he  Ke$i  ac«!  nu^si  usual  way.  | 

*'  Tl^e  a«ve«s4r\  sMall  not  be  ci^nstrained  to  ■ 
aas'^er  !•'»  his  iuJtcimen:.  il!  the  pnncipal  Ke 
lh<\{.  iinW'»  l;e  wive  thai  Ktietit ;  io  which 
^15<\  h'is  a«\^.':-ta*  i'^  c«>o«K-thHi  upoo  such 
t:  "Jii  »  i^nV  \\iit  il  s^<eu^«  oerefs^nr  ia  s»ch 
C4*f  to  n£*,  iie  jc.  ^^went.  isM  the  pnticipjil  be 
<NV.«:v&r\i  a;  o  i,iA.r:.'\'-  fVr  tf  the  princi.'^i  tv 
aJ^s-wirvS  t*>;i:,i:t>!.  lUi:  cvcv-.ciKo  of  tbe  ic^ 

••  !/  \  Sr  r^'Atixl  1*  p--2,.-:rji\ao«!  B  as  ar- 

ar*  .  <  ,:  }  i-^-k     V  V-'- 1  iv'.  r-^'.   :,•   •:■ ;  "'"^ 
«/'.v  ,--   .J  .J.':  IT*  •  :   .->  r.-J     .-.•  r  <  ^ 
t\.;"<-  .    *>^-  :  :*•<  »\-\:cs»j-\  ;   i        •   -Sfy 

e^       *     X      ■'*»■"    •l'>l?fc;    IO>^vl-;S    Slf^    •^^ 

aW«e  :*  «."•  i.*:  w  i.:  .-  .v  ;o.--.-  ':  y  >.  • 
V.'r.V:...i«  vri-  ;  .^f  i.vt-jaSL-Ti  Tn^-^savt 
!»•«:-:  « t*^^  V  i  :.*  .:-.  Tf  ••»."*  .-.•fr::*  -•.*  ;y 
tW  |i^  n.  .1..  •••.-!  .-I.:  .v.i  ?if  r:.fc:if  !.•■  t-o." 
^»    ;W     "I     *.:■'    CJiT-'  i.-c  ir   /c  ..i»f   7r-a«'^a 

ff  :  i«f  4.-**  nr-s  /I.  *irf  ."1  .to:r«i  ^  w*  W'^.  ;.'  hf 
S!:"Sc''ic  ■:•  ,-.'ir«xt  I.. a  r  W  •€*•€  jnfMni#\ 
YfT  li  T  r.i  •  .-ijf..  *!«  Utf  ii»  It*  S.-vr:iair.  Iir 
cnitiif.-  £  tr*  ittmsj  It  lAMnor.  c  »  lauwb-.. 
•^«  .'f  M>  Mr  iif«<«wiiir  T-Ma  f^'idrauv.  ar> 


exculpation,  which  the  aeceBtfy  Mh   not 
know,  or  cannot  prore. 

The  answers  made  bj  my  Lord  Advocate  to 
this  ureliminary  objection  to  the  order  of  the 
trial,  have  been  three.  FirtI,  That  it  is  affainat 
the  interest  of  society,  that  crimes  shoald 
pass  unpunished;  wfafeh  afien  must  be  the 
case,  if  the  escape  or  death  of  the  prindnal 
actor  shall  be  understood  to  be  a  perpetual  bar 
to  the  trial  and  punishment  of  those  who  are 
accessary,  and  no  less  jniil^v  in  the  comniiaaioB 
of  the  crime.  Qdly,  That  Allan  Breck  Stewart 
hath  been  called 'upon  to  stand  trial  for  thii 
crime,  and  hath  been  denounced  a  fajntiveaiid 
outlaw  for  not  appearing*  to  abide  liis  trial, 
which  is  discussing  him,  as  far  as  the  hws  of 
the  land  admit.  And,  S<IW,  That  both  AHaa 
Breck  and  the  pannel  are  cliar^d  by  the  iadid- 
ment  in  the  same  words,  as  bem^  ^ilty,  actoti^ 
or  art  and  pan  of  the  same  heinous  ciiaies ; 
w  hicb  beiUiT  in  the  precise  terms  of  the  act  IAS, 
pari  l:2ih  uf  James  6.  nothing  can  be « 'J 
to  the  relevancy  of  that  part  S[  the  hbeL 

To  these  1  w'ill  offer  but  a  word  or  two  in 
reply.  As  to  the  first,  founded  upon  the  pob* 
lie  expediency,  and  the  dan^roos  eoDsequcBeri 
whtch  may  nf^ult  from  this  dtstindioD  in  d» 
onfer  of  trial  of  principals  acd  accessaries,  it  ii 
sntn  ient  for  me  to  sav,  ^  incomiBodam  non 
soil II  arcnmentum."  iTIie  law  has  been  mora 
anxious  m  pa^Tidin?  for  the  dcftoee  and  safety 
of  the  lives  of  the  subjects,  io  the  trial  of  crimes^ 
than  for  the  cvsvktioo  and  paaisbBefit  of  the 
pi'/ity.  Asd  hence  ii  has  becoaie  aa  axiom  in 
the  (aw.  bet:er  that  tec  ^Uy  pcraos  shonM 
escape,  than  that  oce  inooccBt  persvo  abeoM 

SU3:r. 

Tc>  the  sev-«cJ.  «i:b  r«sa*d  to  the  fositatioB 
of  Ai!^3  Brv'.-i.  I  isswer^  Tbatfcefi  ru|:itatioa 
dkws  DxH  i3»i''y  a  etWTi«-tx«  oi  tbe  ct.iim.  wbieh, 
S  ::.e  law  c:'  Scot**  d.  cxn  ec'i  prxirtrf  optm 
e».ie«,T  brv'jLiiiii  i^iuss  iSe  cr^.  -a!  preseii 
■^  c,\ir:  i.p%K3  ajs  tT!  i>.  A^  aci  ec  ?'zjiucioQ  is 
>.  ;-VY  i-va-  aj!*:'jrr'^'  •"  •***  c^-i.  awiri- 
7^  :  -e  t^-^ei:  cf"  a.Mei..e^  ajavfC  tbe  de« 
iTk ■.■.*"  f.-c  V*  <va: €-•'.•>".  'T  r?c  a.->*snsc  «• 
fii:- :-.x-.  v^^^M  b-*  i-s^sr  ••  «!:t :    ir-d  e«tihcr 

r-rCk^.S  «.-•■»    »»•     r?.' f  l*^r  S.'BWIl  f^fTaOQ^ 

e^  ef  liie  cr-^-*^  i^i-z.-^f  i^i  i*«  bim. 
•  t»v  7r»?w^2.  t  ■*  *  ■  .':?*-y    "  L n mkm 

;.j^  .-^  »<.  *-  .1-  »»  ^■•■.  .>:■  •!*<•.■  '.:i  i<\ypisarji 

I    .•  "f    irtc  ^:i    ?  >    I'*  '.v^f  ■  "V^^   :r  a9<iQa| 
r7  Uft.«  ^.Mi  o: '  •♦       \-r     "-s  -s  3es*-eea^  to 

•.im».**  S4«i«  i%i   «eKiC?  .•*■  Hv^^  f^  3t  wfl 
An.-?r    7i  %*^tr  urmarink   »  <:  r*t  v.*  wr  Ji4a 

i-'Scr  !!«  itiM  Tt  n,tr:  k-^   T>4S  it  <«^i 
sue  hr  -:W  nobv^um  of  t>.«  \tm  ?»  aHi«!iA  tko 

«c«kr  le  |r*PC««f:ir«  it 

■VktraJiowm 


f: 


Murder* 

4f «1  wmi  |iftft«  vrilliotit  obli(;in^  th?  prc^eenior 
t»  mmimcm^d  n*wi»  the  wlielc  |»«rtictitjr  acts 

ftffViMBlar.  ^  rifffnit  case,  hits brousrht 

Hfoadl^i  1,  not  as 

1  w<H^«  *«^  Mn  »u<:  I  lo 

lition  of  ilu'  M  i  l>« 

r*  r  ImrM^e  iigiiiti^t  tUt  pan 

^^j  M  whmLi,  \  in  oontnidictimi  to  the 

^ptml  Wfn  liiur^i'd  ID  the  nulicJtnietit,  hut 
mSf  m  ieepMary  ;  oni}  conierpivntlyi  in  the 
wmmnflmm,  aetnr,  art  awl  port  in  the  commis- 

'\v  the  learned  sir  Matlliew 
1  ImifU^r  <ji  priiicijtah  atui 
is  a|»|tiic&bie  to  Ibe  pre- 

treason,  aaya  be,  all  are 
UB  to  the  course  of  pro- 


A.  D.  1752. 


lUO 


il  hmih  'beeii«  and  inilced  oti^fht  to  be 
that  tlifvse  who  did  aetunlty  eom- 
mi^kmtwrj Ibci of  rresaon  abcrald  be  first  tne<l, 
Wbrr  ibMvtlMt  are  piitici|ial9  in  tlie  second 
ikwieCt  fceome  oiberwise,  this  incoiirenieoce 
Ai^fflt  JMInw,  itiAl  the  principala  in  the  fiecoDd 
iifnii  iB^lit  be  cOfifit*teif«  and  yet  the  yrm- 
'*'  '  in  ttiie  ftrit  degree  mi^'lit  be  acquitted, 
womSd  bt  aboard/'  And  it  ia  hinnbtv 
il^  lliaA  thit  absurdity  would  be  much 
m  ibe  caac  of  a  remote  accessary* 

Uve  dtdt*ioii  to  the  Case  of  James 

^f--^r- -or  apply  to  the  point  in 

t^iime  waM,  in  that  case» 

to  procure  a  muriiage 

1  bromer ;  yet,  as  Jnmes 

iH/'  and  assiatiii^  in  the 

;ibcliirlioii,    coose- 

Sy  I      'ti  the  first  dep-ree, 

ao  tsiir  lur  in  the  uhi»le  crimes 

I)  a&d  ,  I  r,  could  not  be  intitled  to 

tad  dit  del ciH;e  wkch  has  been  offered  ihr 
aaaaMrf. 

wW  ««  therefore  humbly  snhuitt  to  your 
kpitliijpt' isoeicidrrDLtion  ii^  tliat  tliou^h  an  ac- 
aiMry  ai  r  ,     'V  ijru)il table  with 

Ibt  pn»npii  li  laid  down  n 

I     I  he  (rials 

S  and  aa 

i'y    int:  atatnte  of 

:  9l  this  pannel  can- 

i^.^ck  Stewart,  the  sole 

of  the  murder,  is  firat 

<i|is  yhall  6fHl  reafion  for 

tioti,    tlip  pnnnel  ho|>ea 

/  justice,  that 

f'ntnr,  a  proof, 

■iries  that 

1    charge 

1  aipainat  limi  ui  ihi^  uidictiiiuit. 

1W  lamia,  upm  baating  the  Criminal  Let- 
^  laail,  and  the  Debate  th^reopOD,  |iro- 
^^       ^  liic  Mloatinif 

IrrtmuYcmtii  t 
1W  I^rd  Ji0liee-G«»tral,   and    Lord^ 
nf  JiMrtltkiyi  bavipf  eociaitfarel 


tMeod  enaitlctcd, 
IM,  if  T 


at  lat^ptt,  tii 
■ai  irnd  U 


the  onmiaal  libel,  pursued  at  the  instance  of 
William  Grant  of  1*1* ^'""T'-'T^"*'  ^^.  htsi 
jesty  *ii  advocate,  foi  >  i  i»r«st ;  i 

alfo  ut  the  in»iaucei)i  1  , ,  dau|fhti 

to  the  hon.  Hngrh  Mackay  of  BtjOfhouiie,  ew 
and  relict  of  tiie  deceasetl  Colin  Campbell 
Cilentire,  for  herself,  and  on  behalf  of  Elizahe 
and  Lucy  CaniplidU,  her  infunt  eluMren,  wiib 
fSoacoui*aie  of  bi^  nm jesty's  advocate,  fur  his  ma^ 
j^ty 's  interest,  against  James  Stewart  panttc  ^ 
w\ih  the  loreg^oi  I  (^debate  thereupon,  repel  thj 
Dbj#»ction8  to  the  libel,  and  find  the  libel  releran 
to  infer  the  pains  of  law  :  tltut,  time  and  plac 
hbelled,  the  deceased  Colin  Campbell  of  Gla 
nure  was  murdered^  uiul  thiit  the  pannel  /atn^ 
Stewart  was  g^uilty,  acior,  or  art  and  purt  then 
of;  but  allow  the  pamiel  to  prove  all  tacts  ai)d~^ 
circumstances  tliat  may  teml  to  exculpate  him  ; 
and  remit  the  pannel,  with  the  libel  as  found 
relevant^  to  the  knowledge  of  an  assize. 

**  Anorm  L  P.  !>,*• 

Therea(\er  the  Lords  continued  the  diat 
against  the  aliove  J aitiea  Stewart  pannel,  till 
to-morrow  morning  at  six  o'clock  precisely « 
and  ordained  the  partieii,  witnesses,  assi/^ers, 
and  others  ronccined,  to  attend  at  tliat  time, 
and  the  pannel  to  be  carried  back  to  prison. 


Cum*  rnNERTs  JoETiciAttis,  S,  D,  N.  Refia 
ten  ta  a  pud  bur^um  de  Inrerarii,  vicesimo 
secuodo  die  mensis  Septembris,  anno  Do^ 
mini  miUeHimo  septingentesimo  <|utitqua- 
l^esimo  secundo,  N.  S.  per  nobilem  et  pne- 
potentem  Principeiii  Atcliiboldum  llact'iu 
de  Ari^yll,  Doroioum  Justtciarium  Gene^ 
ralera,  et  Patricintn  Grant  de  Elchies,  ar* 
mif^prum, et  Dominum  Jacobum  Fergusuii 
de  Kilkerran^  f>omiuos  Camtoiasioium  "^ 
Justiciarij  dicii  8.  i>.  N,  ttegif. 

Curia  tegittiine  affirmata, 

Jamct  Stewart  pannel,  indicted  and  ai^cus^ 
as  in  the  Ibriner  sederunt. 

Tlierenftcr  the  Lords  proceeded  to  malL_ 
choice  of  the  foUowiti|>'  persons,  |o  pass  u[ton 
the  Asaize  of  the  said  James  Stewart »  |Kinuet: 

L  Colin  Campbell  of  Canvhin. 
d*  l>ou^l  i>laci)oUi;al  of  Gdllunah* 

3.  Alexander  Dancanson  of  Kiles, 

4.  Duncan  Campbell  of  South- Hall. 
5^   Hector  Macueil  of  Anlmeanish. 

6.  James  CamphflU  late  bailie  of  Inferar 

7.  JaniPs  Catnphell  of  Rasheilly* 
Ci.  Jame«  ('ampbell  of  lludale, 
9.  Colin  Gillespie  of  B:dimore. 

10.  Colin  C Jim pbtdt  of  Si'""«i  l» 

11.  Duncan  Ciimpbel I  rouL 

12.  Colin  Campbell  ol  ' 
%^.  Niel  Campbell  ol  Duutroon. 
li.  Arc  In  bald  Campbell  ol  Date  iDCraigoij 
15  Niel  Camptiell  vl  Dnnata£Eiii&b< 

The  above  Assize  all  lawfully  avrorn,  and  i 
olrifctitNl  to  the  «OQ<i«ry. 


9IJ 


SJ  GEORGE  II. 


Trial  nfJamei  Sleaiart, 


[93 


Thereafter  the  Proiecutors,  for  proving^  the 
criminal  Libel,  called  the  Witnesses  cited  by 
them ;  and  the  Pannel,  for  proving^  his  De* 
lencFf),  called  the  Witnesses  cited  b^  him  ;  and 
the  prosecutors  caused  to  be  read,  m  presence 
of  the  jury,  the  Writings  produced  by  way  of 
evidence  for  them ;  and  tne  pannel's  counsel 
caused  to  be  read,  in  presence  of  the  jury,  the 
Writingfs  produced  for  him;  all  which  Depo- 
sitions and  Writings  are  as  follows : 

Tii£  WHOLE  Proof  brolght  both  on  the 
Part  of  the  Prosecutors,  and  on 
THE  Part  of  the  Pannel. 
Jatnci  Stewart,  pannel,  does  admit  the  truth 
of  all  the  writings  contained  in  thein?entory 
of  writings  tubjoiued  to  the  criminal  letters, 
and  which  inventory  was  delivered  to  him  at 
executing  the  said  letters  against  him,  excepting 
two  of  the  said  writings  which  he  does  not  ad- 
mit, viz.  the  writing,  number  7,  intitled, Prin- 
cipal holoCTaph  letter  by  Allan  Stewart,  sou  to 
the  said  James  Stewart,  addressed  to  Duncan 
Stewart  of  Glenbuckie,  dated  at  Aucliam,  the 
Ist  of  April,  1752;  and  the  writing,  number 
12,  intilfed.  Draught,  letter  by  the  said  James 
Stewart,  and  of  an  instrument  of  protest  at  the 
tenants  instance,  relative  to  the  said  decreet  of 
removing  and  suspension  thereof:  but  the  said 
•  draught"  letter  and  instrument  being  again 
shewn  to  the  pannel  in  court,  the  pannel  admits 
the  truth  and  authenticity  of  these  also ;  and 
therefore  admits  the  truth  of  the  whole  writings, 
except  the  writing  liefore-mentioned,  number 
7 ;  out  does  not  admit  the  writings  subjoined 
to  the  said  inventory,  being  two  principal  de- 
clarations by  Allan  Stewart,  son  to  the  said 
James  Stewart,  five  principal  declarations  by 
Charles  Stewart,  also  son  to  the  said  James 
Stewart,  three  principal  declarations  by  Mar- 
caret  Stewart,  s|»ouse  to  the  said  James 
Stewart,  and  two  by  Elizabeth  Stewart,  his 
daughter. 
P.  Grant.     (Signed)    James  Stewart. 

TbereaHer  the  Prosecutors  for  praving  the 
above  criminal  Libel,  adduced  the  following 
Witnesses : 

Mr.  Archibald  CampbcU  of  StonefieM,  she- 
riff^ depute  of  the  shtre  of  Argyll,  aged  56 
\rars,  married,  lieini;  solemnly  sworn,  pui^ged 
of  malice,  i^ariial  counsol,  examined  and  in- 
terrogate, and  being  shown  the  writings  fol- 
lowing, viz.  four  principal  declarations  by 
Charles  Stewart,  sod  to  the  pannel,  bearing 
to  have  been  emitted  in  the  deponent's  pre^ 
sence,  and  dated  the  ^2d,  93d,  and  95ih 
days  of  May  last,  and  three  dcclaratioDS  by 
Margaret  Stewart,  apouse  to  the  pannel,  and 
two  'dcclaraCiQn  ly  ENsabeth  Slawart,  hia 
dawlMer,  all  of  IMi  bcuinff  In 
cnitiid  I  [  iti  iiatt    "       " 


tained,  and  were  all  subscribed  by  the  respec- 
tive declarants  in  the  de|H>iient's  presence,  ex* 
cepting  only,  that  the  declarations  by  the  aaid 
Margaret  Stewart  and  Elizabeth  Stewart  wer^ 
not  signed  by  them,  but  were  signed  bv  the 
deponent  for  them,  because  they  declared  they 
could  not  write.  And  there  being  also  shewn 
to  the  deponent  two  declarations  by  Allan 
Stewart,  son  to  the  pannel,  bearing  to  have 
been  emitted  in  presence  of  George  Douglas,. 
sheriff-sulMrtitute  of  Invei'uess,  dated  the  3d  of 
June  last,  and  a  declaration  bearing  to  be  emit- 
ted by  the  said  Charles  Stewart,  son  to  the  pan* 
nel,  in  presence  of  the  said  George  Donglaa, 
sheriff-substitute,  dated  the  4th  of  June  last, 
depones,  That  the  deponent  was  present,  an4 
saw  and  heard  the  said  declarations  by  the  ^d 
Allan  and  Charles  Stewarts,  emitted  in  presence 
of,  and  taken  down  in  writing  by  the  sheriff- 
substitute;  and  they  were  at  the  sheriff- 
substitute's  desire,  dictated  by  the  deponent  to  - 
the  clerk ;  and  the  deponent  saw  the  said  de- 
clarations subscribed  by  the  said  Alkn  and 
Charles  Stewarts  respective,  of  the  several 
dates  therein  contained,  voluntarily  and  freely, 
without  any  compulsion  or  coaclion.  Caaas. 
scientUe  patei.  And  this  is  the  truth  as  be 
shall  answer  to  God.  (Signed) 
P.  Grant.  Arch.  Campbell. 

After  emitting  of  the  above  Deposition  by  Mr. 
Archibald  Campbell  of  Stonefield,  to  save  tbe 
time  of  the  Court,  in  bringing  further  proof  of 
the  declarations  therein  mentioned,  tbe  Pannd 
judicially  declared,  t^iat  he  admitted  tbe  tmth 
of  all  the  several  declarations  contained  in  tbe 
said  oath,  that  is,  that  these  declarations  were 
emitted  by  tbe  respective  persons  therein  men* 
tinned,  and  in  presence  of  toe  respective  judgcip 
and  at  the  respective  times  therein  contained, 
voluntaril  V  and  freely  ;  but  does  not  admit  the 
truth  of  the  fiicts  as  declared  by  the  said  de- 
clarants. 

P.  Grant.        (Signed)  Jaxes  Stewabt.    . 

Mungo  CampheU,  writer  in  Edinburgh,  aged 
94  years,  unmarried,  sworn,  purged  and  cxa- 
minetl  ut  supra^  deiiones  That,  in  the  beginning 
of  May  last,  the  deceased  Colin  Campbell  of 
(tlenure  applied  to  the  deponent,  to  go  with 
him  to  Locbaber,  to  assist  him  in  oomiiictin^ 
the  ejecting  of  some  of  the  tenaota  of  thn 
estate  of  Stewart  of  Ardshiel,  and  of  tbe  tenants 
of  Mamore,  part  of  the  estate  of  Locbiel,  over 
which  tbe  s^  Colin  Campbell  was  fiMtor,  and 
which  tenants,  be  appielieoded,  would  not  vo- 
luntarily remove,  without  being  legally  ejected : 
that  they  set  out  from  Edinbuivh  logdheri 
upon  tbe  7ih  of  May  last,  and  arrived  ail 
Glennre  upon  Saturday  the  9ih  of  thai  montb  ; 
that  they  aat  out  tenther  for  Fort-Williaaa 
upon  Monday  tbe  lltb.  about  ten  o'clock  !«•• 
•ben,  and  icnained  at  Fort- WilUam  tillThm*- 
^  the  14th,  when  they  letuiued,  in  order  m* 
vanmtlhnMiEtdav  ihe« 


BMt  wm  MSI  «av  mt  gjecnao  againai  aov* 
^ mma  of  Ardihiil :  That,  when  thay 
ihnJ^  of  DiHarfciHih.ihedafcyt 


Si3J 


JtiT  Mun 


A.  D.  1752. 


[Oi 


kfoncat 


iCMHe  of  llie  tenantt,  end  crosied  tbe  ferry  Ke- 
twixl  four   and  five  io  llie  aUernoon  :    thai, 
after  croi»sing  the  ferry,  Alexandpr  Hie  wart  uf 
Bfttt^cbelisli,  elHer,  mctwttb  ihe  detuuctfaDil 
lliey  iravellcil  loj^eiher  on  foot,  nboiii  llie  space 
^btif  ft  iriile,  tiU  ihey  came  to  the  e»kirts  of 
the  ««o4    of  Lettermi»re :    that,  while   tkiey 
Bmitniijg-  toi^etlier  od  foot,  I  be  de|io* 
•t  some  UtUe  di^tauce  before  tJiem  on 
and  the  (iheriff- officer,  Doniild  Ken- 
Miff  ^irwm  An  fovl  t>efi>re  the   depone  ill,  and 
'•s  aerrant^  John  Mackenzie,  was  oo 
k  m  liltJe  before    Gletiure ;    and,  tbe 
It  buppenm^  to  drop  a  coat,  BaURcbeUsh 
Citlliil  to  bim,  and  die  servant  returned,  and 
thereby  fell  behind  Gleuure  and  Ballacbelish  i 
Ibftt  Bailacbebsh  parted  frutn  Glenure  at  tlieir 
cnteriog  into  tbe  wood  of  Lettermore,  or  tbe 
mod  oi*  Bftllttcbeltsli,  a  part  of  tbe  wood  being' 
dllid  by  ibat  name  ;  und  Glenure  mounted  biii 
and  came  up  to  the  deponent  t  that  tbe 
iC  ftsked  Gleuure,  >vh ether  Ballachelish 
said  any  tbiuf^  to  tiim  toucbing  removing 
leoaatsr     And  Glenure  said,  that  nothing 
beti^irt  them  on  that  subject  i  that  com- 
a  part  of  the  road  that  was  rough  and 
an  as  I  bey  could  not  ride  conveniently 
a-breast,  ibe  deponent  and  Glenure 
,  and  tbe  deponent  went  before,  auit 
I  have  been  about  twice  the  leny^tb  of  the 
where  tbe  Court  now  sita  belore  Glenure, 
Wircfi  the  deponent  heard  a  shot  behind  bim, 
ftOd  beard  Gleuure  several  times  repeat  these 
'^    '     Oh  I    1  tm  dead.     Depones,  that  tbe 
lot  thereupon  returned  to  Gleuure,  and 
bim  repeat  the  same  words;  and  tbink«, 
ii  not  (lOsitiTe,  that  he  added,  Take  care  of 
%  for  be*s  going  to  shoot  you  :    that  the 
i  CD  mediately  lighted,  and  run  up  tbe 
the  road,  to  see  who  bad  shot  Glenure, 
taw  at  some  distance  from  bim,  a  man, 
a  abart  dark-coloured  com,  and  a  gun  in 
iiii  band,  going  away  from  him }  and  as  the 
depoMnt  came   nearer   bim,  he  mended  bis 
ptee,  and  disappeared  by  hi|;b  ground  inter- 
Jtcted  betwixt  bim  and  tne  deponent;  and  be 
*Bi  at  so  great  a  distance,  that  the  denonent 
tkiaki  he  could  not  have  known  bim,  tnough 
Ki  bad  seen  bis  face :  ibat  the  de^ionent  there- 
Qpoa  returned  to  Gleuure ;   and  either  at  that 
liibf,  Of  Itetore  tlie  deponent  run  up  tbe  hill  as 
ifcwe  deponed,  (the  deponent  cannot  be  posi- 
trvt  wbicli)  be  took  Glenure  from  oflThis  horse. 
JSipoDca,  that,  after  taking  Glenure  from  bis 
be  leaned  a  little  upon  the  deponent's 
and  eodedfoured  to  have  opened  his 
t4>  see  where  tbe  bullets,  wberevviih  be 
came  out  of  bis  body,  but  wag  not 
tUc;    but  aaw,  in  hts  waistcoat,  two  boles  in 
kii  brily    where  the   bullets  had  come  out, 
IkopoMB,  that  Glenure  intended  to  have  been 
tbalftiifht  at  RiutaUine,  where  he  expected  Mr. 
Cliii|ibell  of   Ballieveolao   wn^  to  meet  bim  ; 
wbcrafore  the  deponent  sent  Mackenzie,  the 
Mivafit  aboYe« mentioned,  tbrwurd  to   Kintal* 
&•»!  la  aoquatoi  Baltieveotan  what  had  hap- 
ly i&d  ta  bring  hiin  to  bis  itsigtiuct :  that 


Glenure  continued  in  agonies  for  about  half  an 
hour,  or  a  little  more,  al\er  sending  off  Mac< 
kenzie,  and  then  died;  and  niLfht  coming  oi 
and  no  appearance  of  Mackenzie's  returning^ 
the  deponent  sent  back  the  .sherift"-o(fifer  abov» 
riame<l  to  Bidlacbelish,  to  desire  Mr.  Stewurt'a 
assistance^  and  some  of  his  people  :  that  in  a 
little  more  than  an  hour,  BallacheHsh,  and 
some  of  bis  people,'  with  tbe  sheriiT'officcrf 
came  to  the  deponent's  assistance,  and  carried 
Gleuure^s  corpse  that  night  to  Kintallin4%  by 
sea;  and  next  day  carried  it  to  Glenure,  whera 
some  surgeons  came,  and  inspected  his  body  ; 
and  the  deponent  saw  there  the  two  wounds  iji 
bis  belly  made  by  the  balls  coming  out  of  bis 
body.  Depones,  that  when  the  deponeut  htd 
Glenure  upon  tbe  ground,  a  great  deal  of  blooil 
Issued  from  his  body,  and  his  clothes  'were  all 
sfained  with  blooil,  particularly  tbe  small  of  hi« 
hack,  having  bf?en  laid  on  his  back  upon  tha 
ground  :  tbat  Mackenzie  tbe  servant  also  re- 
turned, betbre  they  carried  tbe  corpse  ofit  tha 
ground,  and  some  people  with  bim,  particiiw 
larly  Bstlieveulan^s  tons;  and,  being  ^hcwo 
coat  aud  waistcoat,  and  a  shirt,  depones,  that 
these  are  tlie  coat  and  vest  that  Gknure  bad  o«i 
when  be  was  murdered  ;  and  believes  also,  it  is 
the  same  shtrt.  Depones,  that,  at  the  plac« 
where  Glenure  was  shot,  the  wood  is  pretty 
thick  on  both  sides,  and,  on  the  side  from  which 
he  was  shot,  very  rugged  and  stony,  and 
bushes  in  which  Ihe  murderer  could  have  easily 
bid  and  concealed  himself:  that  the  grouud 
there  rises  up-hill  towards  the  south,  though 
there  are  places  in  it  where  the  murderer  might 
be  pretty  nearly  upon  a  level  with  Glenure; 
and  there  are  afso  places  there  so  situate,  as  a 
person  standing  there  might  see  tbe  most  part 
of  t!ie  road  from  tbe  ft-rry  to  tbe  ivood,  and 
even  a  part  of  the  road  betwixt  Fort  William 
and  the  ferry  ;  and  which  place  is  not  a  mus- 
ket shot  from  the  spot  where  Glenure  was 
murdered.  Depones,  thai  neither  the  defunct, 
nor  the  deponent,  nor  any  of  their  com- 
pany, had  any  sort  of  anus  with  them*  De- 
pones, thai  it  was  betwixt  5  and  6  o'clock  in 
tbe  aftert)oon,  at  he  thinks,  when  Gleuure  was 
murdered  as  aforesaid  ;  and  remembers,  when 
Glenure  was  dying,  the  deponent  looked  at  his 
own  watch,  aud  found  it  was  then  about  6 
o^clock.  And  depones,  that,  upon  recol lection, 
he  cannot  he  positive  whether  he  observed  both 
the  wounds  in  tbe  defunct'r;  belly,  or  only  oi 
of  them.  And  being  interrogate  for  tbe  panueli 
depones,  that,  some  days  after  the  murder,  th« 
deponeut  sent  a  Serjeant  and  a  party  of  soldiera 
to  the  pannel'g  bouse  at  Aucharn,  with  orders 
to  search,  and  particularly  to  search  for  writ-> 
ingsi  that  the  serjeant  reported  to  the  depo^ 
nent,  tbat  he  bad  searched,  and  delivered  to  tJti_ 
deponent  otie  paper  which  he  found  tbere^ 
being  a  scroll  of  a  letter  by  the  pan o el,  and  of 
an  instrument  of  protest,  being  tbe  number  1% 
of  tbe  inventory  subjoined  to  the  libel,  and 
which  is  now  iu  tbe  clerk^s  hands;  aud  being 
fihowo  to  tbe  deponent,  depones,  that  it  is  tba 
same  writiog  that  wm  deUvartd  to  biai  b)  tbt 


95]  25  GEORGE  IL 

•erjeiDt.  Depontf,  tbtt  the  teijemnt  gave  him 
no  more  papers  but  that  one  ;  and  said  that  he 
bad  brought  away  no  more.  Causa  scienlUe 
putet.  Aud  thia  is  truth,  as  be  shall  answer  to 
God.  (Signed) 

F'.  Grant.  Mi/mgo  Gampbell. 

John  Mackenzie,  late  serrant  to  Glenure, 
QDinarried,  af^ed  19  years,  witness  cited,  sworD, 
pnrged  and  examined  ut  supra,  depones,  That, 
upon  the  14th  of  May  last,  he  came,  wilb  his 
master  the  deceased  Colin  Campbell  of  Gleuure, 
from  Fort- William,  bv  the  horse-road  leading 
to  the  ferry  of  Ballacheliah,  which  road  cuin- 
cidea,  a  little  way  next  to  Fort- William,  with 
the  new  road  commonly  called  the  King's  road: 
ihat  tbey  passed  the  ferry  of  Ballacheliah,  and 
came  along  the  high  road,  which  leads  to  Kin- 
talline  through  the  wood  of  Lettermore:  that, 
Gitming  up  with  Alexander  Stewart  elder  of 
Ballachelish,  who  waaonfoot*  Glenure  alighted 
from  his  horse  to  walk  a  little  with  Ballachelish, 
and  desired  Mun^  Campbell,  writer  in  Ediu- 
Imrgh,  who  was  in  company  with  Glenure,  as 
also  the  deponent,  to  step  on,  which  accord- 
ingly they  did;  but  coming  up  to  a  place 
where  they  were  stout  by  the  tide,  they  were 
obliged  to  alight,  and  lead  their  boraea  across 
a  rock ;  and,  upon  that  occasion,  and  by  which 
means  it  happened  that  the  deponent  dropt  a 
great  coat  lielonging  to  Donald  Kennedy* 
slierifT-ulficer,  who  was  also  along  on  foot,  and 
which  be  had  got  from  him  to  carry  when  they 
passed  the  ferry  of  Ballacheliah ;  and  Glenure 
and  Ballachelish  coming  up,  and  finding  the 
great  coat  lying  en  the  road,  one  or  the  other 
(if  them  cried  out.  To  whom  this  coat  belonged  ? 
which  the  deponent,  being  within  distance  to 
hear,  said,  it  belonged  to  IHmald  Kennedy,  and 
that  be  had  been  carrying  it,  and  had  dropt  it ; 
whereu|>on  he  returntd  to  fetch  the  coat,  bv 
which  means  Glenure,  who  had  parted  with 
Ballachelish  at  the  rock  that  has  been  just 
mentioned,  got  before  the  de|ionent,  and,  when 
about  a  musket- shot  before  him  in  the  wood  of 
J^ttermore,  he  heard  a  shot  which  he  took  to 
be  from  a  firebck,  which  he  did  not  much 
mind,  nor  know  from  what  quarter  It  bad  come ; 
but  when  he  came  up,  he  saw  Mungo  Campbell 
wringing  his  hands,  and  his  master  lying  on 
the  ground  with  a  great  deal  of  blood  about 
him,  just  breathing,  and  not  able  to  speak ;  and 
Donald  Kennedy,  the  sberifT- officer,  was  at 
that  tune  standing  by  him  ;  and,  as  near  as  the 
deponent  could  guess,  this  was  about  (ire 
o'clock  in  the  al>erooon.  Depones,  That 
Mungo  Campbell  directed  the  de|K)nent  to  ride 
forward  with  all  speed  to  Kintalliue,  and  to  see 
if  John  Campbell  of  Ballicveolan,  or  bis  sons, 
were  there;  and,  if  they  were,  to  acquaint 
them  what  bad  happened,  and  to  come  up  im- 
■oediately.  Accoraiugly  l^e  went,  but  found 
neither  Balliereolaii  nor  his  sons  there:  but 
being  told  by  one  of  the  tenants  of  Acbiu.lar- 
roch,  that  probably  James  Stewart  in  Aucham, 
wba  ia  now  tJie  pannel,  might  give  bim  some 
•econnt  of  Ballitffohui }  that  accwdiiigly  he 
4 


Trial  qfJamu  Steioart, 


[96 


went  to  James  Stewart's  house  in  Domr ;  and 
James  seeing  hina  weeping,  asked  what  the 
matter  was  ?  The  deponent  told  him,  his  master 
was  killed;  whereupon  James  Stewart  asked 
bim,  by  whom  aud  bow  it  was  done  ?  To  which 
be,  the  deponent,  answered.  That  he'  did  not 
know  by  whom,  and  believed  it  to  be  by  a  ahot 
from  a  ^nn  or  pistol :  that  I  he  deponent  then 
asked  him,  what  was  the  nearest  road  to  Gleo- 
duror,  where  he  expected  to  find  Ballicveolan? 
Which  accordingly  James  Stewart  having 
pointed  out  to  him,  he  followed ;  and  meeting 
with  one  Allan  Duw,  whom  he  had  seen  se- 
veral timea  before,  he  prevailed  with  biro  to  ge 
to  Glendnror,  and  acquaint  Ballieveolan  of 
what  bad  happened,  and  to  desire  him  to  come 
up  where  his  master  was,  and  which  the  said 
Allan  Dow  could  do  more  expeditiously  ea 
foot,  than  the  deponent  could  do  in  that  croea- 
wi^  ou  horseback;  and  the  deponent  imme- 
diately returned  where  bia  master  htv,  and. 
brought  no  person  along  with  him:  that  his 
master  was  then  dead,  and  that  the  people  of 
Ballachelish  were  at  this  time  come  no,  and 
were  standing  about  him.  Depones,  Inat  be 
was  then  sent  off  a  second  tiine  with  a  horse 
by  the  road  Ballieveolan  was  expected  to  come, 
in  order  to  hasten  bim ;  and  having  accord- 
ingly met  Ballieveolan,  he,  at  BalTieveolan's 
desire,  went  and  acquainted  captain  CampbeU, 
younger,  of  Barcakline,  of  what  bad  happened. 
Depones,  That  when  bis  roaster  and  be  oame, 
as  bas  been  said,  from  Fort-William,  on  the 
14th  of  May  last,  tbey  met  tlie  foresaid  John 
MaccoU  going  to  Fort-William  at  the  foot  of 
the  three-mira  water,  which  is  about  three 
miles  from  Fort- William;  and  that  the  said 
MaccoU  came  to  the  ferry  of  Ballachelisb  mueh 
about  the  same  time  with  the  deponent,  but  be- 
fore Glenure,  who  had  stayed  some  time  talk- 
ing with  the  tenants  of  Ballachelish ;  and  for^ 
ther  adds,  that  bis  master  had  stayed  at  Coorj- 
chorrachan,  which  is  about  five  miles  from 
Fort- William,  about  an  hour  and  a  half,  or 
two  boors.  Depones,  That  when  MaccoU  de- 
sired the  ferryman  to  carry  him  over,  the  ferry- 
man begged  to  be  excused  till  Gleoure*s  horses 
should  go  over ;  and  that  he  waa  then  em- 
ploy^ in  gathering  wreck :  but  MaccoU  would 
not  delay ;  and  acxsordingly  was  ferryed  over, 
as  bethinks,  about  half  an  hour  before  Gienura, 
whose  horses  were  first  ferryed  over,  and  tdoof 
witli  them  the  sheriff-officer,  and  sfterwanfi 
Glenure  and  Mungo  Campbell.  And  depones, 
l*hat  neither  Glenure,  nor  any  in  bis  compao/t 
had  arms  of  any  sort  along  with  them.  And 
a  coat,  waistcoat,  and  bloody  shirt,  referred  to 
in  the  list  of  evidence,  being  shewn  to  the  de- 
ponent, depones,  that  they  were  the  very 
clothea  and  shirt  Glenure  had  on  when  be  was 
killed  as  aforesaid.  And  further  deponeti 
That,  when  he  saw  the  pannel  at  bin  honae  in 
Aucham  as  aforesaid,  the  pannel  wrung  hb 
haiidsi  expressed  great  concern  at  what  had 
hap]iened,  as  what  might  brinif  innocent  peo- 
ple to  trouble ;  and  prayed  that  mnooent  people 
night  BoC  be  brought  to  iroiiUe.    Aad  htmg 


^f  Murderm 

idr  Hie  pafineU  rlepooei,  Tlitt  he- 

t  mmA  ^v  « Inch  ho  :\nA  his  master  ciifne 

fhiniF^wt*1V  h,  tlifre  isan* 

^         I       1    ;     n  ,      larel,  both    l>v 

I  fNi  fiMM,  «rbicli  is  compiued  to  lie 

\  tittle,  and  by  which  he  sup- 

—  _^^^ Cfune.     Cftii$n  sdenii^   patet. 

4Uikif  intiU^aa  faenhnli  answer  to  God. 
(Stgntd) 
Ia.  Ft»omoys,  John  MACK£!<2i£t 

iKenwtdjf^  sheriff- oiKcer  in  Interary, 

,  a^*    *''   rr"irs»  i«ilne«s  dtetl,  sivMrn^ 
an«i  '  f/f  iuprr»»  ilep«nies,Thal| 

Ilu-   I  ^T''*^   1  ^^t,  be  was  eiii- 

I  by  tf  acnes  <  i  in  Invrrtiry, 

ry  a  |)«ic<|tiLt        '.  ,  dipii  al  Furt- 

WtllimiB;  ^iKi  when  iie  ddirifreil  the  pacquet 
li  liiiii,  tnM  hrm,  tbai  it  cnntained  a  warrant 
for^irci  in  poveRRois  of  Ibe  IudiJs  of 

;  uti  the  I3ih  day  of  May,  he 
lo  >1-  or  Fort  William^  where 

bafeyttdlir  1  Gleniire,  and  dellrered 

|(>  litm«  who  told  bim,  as  James 
ll«il  heffML*  diirte,  tvhat  tbe  pacqiiet 
^■■- .  ''■■-   *■  :---i-nt,  was  to 
l«  ipifbyet'  ai :  tba^ 

fMiihr  •  ■  ,  ,,j  -i^*v,  .  -'--s  the 


A.  D.  1752* 


[98 


for  «3rci 


mi  wmmtd 


il^Wiilimii 

Fit    W  t  lit    \*<    ' 


re  a 
litl 


iiunii  to  the  vJUili  ot  Ap|iin 
<rh  him  a  ynung  gentleman, 
^  III  be  a  HrUer  «n  Edin- 
tvaiit  Jobn  Mackenzie: 
u'j,itt  .luii  tijif  bor«ifs  "  ►  i)t  lii»t  over; 
iilfain  rrturnf-'d,  and  f>iou<^ht  iivtr 
•'       |kl»t«ll,  and  ihedi^ponenl : 
u'  nn  liiDt,  as  Uah  been 
!  ifadiug  to  KiotaU 
1 1  enure  intended  lo 
fsarivf  tlul  '■"  iiHiit  fui  I  he  mad 

i^  CUnMitr,  M  II,  and  Glftiure'ii 

irrvaat,  »Kii  *oM  nol  keep  up 

mibi  i  10  rind,  unon 

^rm^  tofBiillacbe- 

Ib4  on   fivii^    hr  lii^hird  trnm  lii«  horse,   and 
rtttlf  tjn  the  wny  wiili   Bnlhichetish^ 
''if  sfsirt  orGlenure, 
'  in  company  with 
ilitf  tj>  ;v  nciU    walking  on   through 
of   l,cti«Tfn»u**.   and   after  be  was 
'     I  ihe  wond,  he 


till* 

\^  «rfit  *t 
l.wWre  li 
tbal 


te;  ana 


mm  h 

i«rda 


it  of  II 
tot  Mil  - 

livwafila  lui'J 
tnatdiaiHy  upon 
Ar  ^  liad  fviDo  u 
Am,  till  Mice  fia  heard 
ttM»  hadk  111  MnntTf  ^ 
•tkioi.  The  • 


ne  heaf«l  the 

'  '-*^  Mt  noice 

at  that 

.;.  ^...i  iid'tjre  the 

\r  fbremost,  as  he 

71ie  de!>orn"nt 

d, 

'Lie 

^  hen  be 

1(0  taid 

killed  luy  dif^r  uncle^ 


ijy  ie«tt  one  man ;  and 
de|)Ou«!nl,  iaiwd   no  ^uett)anf> 


beingf  in  confution,  and  dreading  for  the  same 
fate  bimseir.      Depones,  That  he  saw  Glenure 
lyin^  upon  ihe  ground^  with   grent  plenty  of 
blooij  nbniil  bttn,  and»  as  the  breast  of  lils  waist- 
coat bad   hc?en    op^^ned    litffore  tbe   defionent 
came  nri«  he  saw  a  hole  in  bis  shirt,  through 
which  ne  supposeil  a  bullet  bad  come;  and 
that   the    dejionent  stayed  at  the   place    till 
Gfenure  expired*     Deponea,  that  John  Mac* 
kenzie,  Glenure's  serrant,  was  dispatched  by 
Mun^  Campbell  to  tbe  house  of  ivintatline, 
where  Glenure  was  to  lolg^e  that  nigrht,  and 
BaHieveoJnn  alou^  with  bim^  with  orders  to 
briog  Ballioveulan,  and  some  other  gentlemea 
that  were  expected  to  be  there ;  Muogo  Camp- 
bell also  desired  ihe  deponent  to  g^o  for  other 
people,  which  the  deponent  at  first  declined^ 
g-ivin^  this  re<i8on  for  it,  that  he  would  slay 
and  run  the  same  risk  with  Muogo  Campbell  ; 
but  at  last  was  pi'erailed  upt»n  to  go  by  Mimgo 
Campbell,  whom  he  left  alone  with  I  be  corpse, 
and  the  deponent  brought  Alexander  Stewart 
elder  of  Batlachelisb^  and  several  other  people 
of  the  town  of  BaUacbelish.      Depones,  thai 
while  Glennre  and  his  company  were  at  the 
ferry  of  Ballachetish,  as  aforf»aid»  be  saw  • 
rnan^  who  seemed  to  lje  in  a  hurry  to  |fet  orer 
•he  i'crry,   who  provrd   to  be   John  Maccoft, 
servant  to  the  pannel ;  lo  whom  Glenure  said, 
in  thedeponcnt'^  hearini^,  8ir,  you  travel  better 
than  1  [HK     To  which  he  answereij,  1  am  in  i 
haste,  and  so  went  over  the  ferry  about  an  bout 
before  Gfenure  passed  it,  who  had  sotne  bust*! 
ness  lo  do  with  tenants  there.     Depones,  thatyl 
when   the  p«?ople  were    gatbererl    about    th 
corpse,  as  aforesaid,  the  said  John  Macroll  wa 
(tinontrthem.     And  MunertiCamplieli  then  loli 
tbe  deponent,  that  when  Glenure  nnd  be  wer^l 
come    three    miles  from    Fort    William,  ibe#l 
met  the  fsaid  John  Maccoll  going  to  Fort  Wit  J 
liam,  and  that  he  wos  back  at  ihe  ferry  of  BaUl 
hchelisb,  though  on  foot,  as  soon  as  they.  De*l 
pouFs,   that  Glenure  was  shot   aboiit  half  aii  J 
iionr  after  five  in  the  evening",  and  died,  as  h^  j 
thinks,  about    six,   Mungo  Campbell  havtntf  I 
then  I  rooked  at  bis  watch.     De|ioiie9»  thnt  tbi#] 
John  ]^[iccoll  was  none  of  the  people  that  thii  J 
deponent  had  called  upon:    that  the  corpa^j 
was  carried  that  night  lo  Kintalline  by  waierg  1 
the  place  where  they  lay  being  but  a  abort  ' 
<)isiance  down  through  a  nigged  part  of  tbtt  i 
road  towards  the  Loch.     And  being  iolerrogat#^ 
for  the  pannel,   depones,  that  there  are  tw#  j 
roads  leading  from  Fort  Wdham  totbe  ienf  i 
of  Ballacbehsh,  one  of  them  being  a  horse-  , 
road,  by  which  Glenure  came,  Ihe  other  a  fooU 
road,  which  is  the  shortest  of  the  two  by  about  \ 
a  mile.     Cansa  scientia  patet.     And  iUm  is  tht 
truth,  as  he  shall  answer  to  Goit     And  belai^ 
further  interrogate  for  ll*e  pursuers,  depooefl| 
that  neither  Glsnnre,  nor  any  in  his  com  pan  j.  I 
had  arms  along  with  thetn  of  %ny  kind.     Anil  i 
being  also  further  inleiipogate  for  the  panneV^ 
depones,  that  Jnbn  Macooll  was  at  the  ferry 
beKire  Glenure  came  up.    And  this  Is  trtith| 
as  ho  shall  an«(wer  toGod.        (Signeii) 
J  A.  FiK^uftort.  BgfiALo  &£H>eoT. 


25  0EORGE  IL 

John  lUnf  Lhingiione^  aliat  Maeanure^  in 
Ballacheliah,  roamed,  aged  40,  who  beio^ 
vtvorn  by  Archibald  Campbell,  Bheriflf-aubsti- 
tute  of  Argj^llahire,  aworn  interpreter,  punned 
of  ualice  and  partial  counsel,  cfepones.  That, 
upon  Thursday  the  14th  day  of  Nav  last,  he 
saw  Allan!  Breclc  Stewart  in  JUllacbelish,  in 
the  ibrenoon,  dressed  in  a  dunnisb  \ng  coat ; 
but  had  no  conversation  witli  him :  tliat,  upon 
the  eveninff  of  the  said  day,  he  aaw  John 
Beg  Maccoil,  servant  to  the  pannel,  travelling 
at  a  good  rate  frooi  the  ferry  of  Ballacheliah, 
towards  his  master's  house.  The  deponent 
joined  him  upon  the  high  road,  and  asked  him 
vrhere  be  had  been  ?  To  which  John  Maoooll 
replied,  That  he  had  been  at  Mary  burgh  for 
Charles  Stewart,  notary  public,  but  did  not  find 
liim  at  home :  that,  during  this  conversation, 
the  deponent  travelled  the  road  along  with  the 
said  John  Maccoil,  and  only  stopped  for  a 
very  short  time ;  and  that  the  said  John  Mac- 
coil told  the  deponent,  that  Glenure  that  night 
was  to  lie  at  Kintalline.  Depones,  tluit,  about 
an  hour  and  a  half,  or  two  hours  thereafter,  the 
deponent  went  to  the  wood  of  Ballachelish, 
adjoining  to  Lettermore,  to  cut  some  sticks  be 
wanted :  that,  while  be  was  in  the  wood,  he 
saw  Donald  Kennedy,  sheriff-officer  at  Inve- 
rary,  passing  alooff  the  high  nwd  below  him, 
and  a  little  after  him  Mungo  Campbell,  and 
John  Mackenzie,  G tenure's  servant,  and  a  little 
after  them  Glenure  on  horseback,  and  Alexander 
Stewart  elder  of  Ballachelish  aloiig  with  bin ; 
and,  as  the  deponent  observed  Glenure  and 
Ballachelish,  they  found  a  big  coat  upon  the 
high  road,  and  called  to  the  said  John  Mac- 
kenzie the  servant,  and  the  servant  came  back 
for  tlie  biff  coat,  and  Glenure  and  Ballacbe-  < 
lish  parted:  that  the  deponent  came  down  to 
the  road,  and  entere<l  into  conversation  with 
the  said  John  Mackenzie,  and,  after  a  few 
questions,  the  said  John  Mackenzie  went  on 
after  his  master ;  and  immediately  thereafter 
the  deponent  heard  a  noise,  whicn  he  ima- 
gined to  be  a  shot,  but  waa  not  sore.  De* 
pones,  that,  some  time  thereafter,  he  went 
along  with  Ballachelish  to  the  wood  ef  Letten> 
more,  where  he  found  Glenure  dead,  and  was 
one  of  the  people  that  assisted  to  carry  the 
corpse  to  Kintalline.  Causa  tcientue  patet. 
And  this  is  the  truth  as  he  shall  answer  to  God. 
And  depones  he  cannot  write. 
(Signed) 

P.  GbAKT.  AbCH.  CiJCnBLL. 

Alexander  Campbell^  sargeon  in  Lorn,  aged 
50  yean,  nnmanied,  awom,  purged  and  ex* 
nmined  ut  tnpra^  depones,  That  Im  waa  called 
to  the  house  of  Glenure,  upon  the  15th  day  oC 
May  laat,  to  ioapect  the  body  of  the  then  de* 
ceased  Colin  Campbell  of  Glenure,  who,  the 
fleponent  was  infonnad,  had  been  shot  the  day 
betbre ;  and,  having  aeoordinffly  inspected  tM 
body,  he  fonnd,  that  he  bad  neco  ahot  by  two 
bnlleta  entering  at  hia  back,  one  on  cneb  aide 
nf  thn  bnok-bone  ;  one  of  wbieh  bad  < 
MUbMl  half  w  in*  btkm  dw  ufd. 


Triai  qfJamei  Stemari^ 


[100 


the  other  about  two  inches  from  it,  towarda  tbn 
right  side.  And  depones,  that  they  were 
tiiortal  wounda,  of  which  the  deponent  believes 
Glenure  died.  Cau$a  identic  patet.  And 
ibis  is  truth  as  he  shall  answer  to  God. 
(Signed) 
Ja.  Ferguson.  Alex.  Campbell* 

AnguM  Macdonaldj  walk- miller*  in  Anchos« 
rcgan,  married,  aged  6S,  witness  cited,  sworn, 
purged  and  examined  ut  tupra^  depones.  That, 
in  April  last,  Allan  Breck  Stewart,  and  John 
Stewart  in  Auchnacoan,  came  into  the  depo- 
nent's house,  and  sat  down ;  and,  at  the  samn 
lime,  Duncan  Campbell  (the  succeeding  wit - 
uess)  came  in,  and  sat  down  also ;  and  which 
Allan  asked  John  Stewart,  who  that  wasf 
And  John  answered,  That  he  waa  an  honest 
man  in  the  neighbonrhood,  Duncan  Campbell, 
naming  him ;  to  which  Allan  answered,  That 
be  did  not  like  any  of  the  sort  or  name :  for 
that  Glenure  had  wrote  to  colonel  Crawfnrdi 
that  he  had  come  from  France,  and  to  take 
him  up  as  a  deserter ;  but  that  be  was  not  in 
bis  reverence ;  for  he  had  general  Chnrchill'a 
pass :  that  John  Stewart  said,  that  be  did  not 
so  much  blame  Glennre  for  turning  out  the 
possessorsof  Ardshiel;  for  that  he  was  but  do- 
ing the  king's  service ;  and  that,  if  he  had  not 
the  factory,  another  would,  who  would  do  the 
«ame  thing;  to  which  Allan  answered.  That 
he  rather  the  meikle  devil  had  it  than  Glentnc. 
And  being  interrogate  for  the  pannel,  deponcf » 
that  Allan  waa  tben  dressed  in  a  blue  afait 
coat,  a  red  vest,  and  feathered  hat.  Deponci, 
that  tbe  deponent  aaw  him  agam  about  the  8tb 
of  May  in  the  aanie  dress:  that,  at  that  time, 
the  deponent,  and  tbe  foresaid  Donean  Camp* 
bell  and  Maloofan  Maoooll,  were  travelling  to* 
getber,  and  met  Alfain  on  tbe  road :  that  Alhm 

Skve  Duncan  the  eonmion  nlntation :  and  aaid, 
at  tlie  tost  time  be  bad  been  in  Dnnoan'a 
hooae,  be  waa  bad  company,  tlioogh  it  was 
not  be  that  was  so  mncb  tbe  bad  company,  aa 
tbe  drink.  Cease  srieaf ttf  patei.  And  tbi^ 
tbe  tratb  aa  be  iball  anawer  to  God. 
(Signed) 
P.  Grant.  Angus  Macdonald^ 

Duncan  CampheU^  cbange-keepqpf  at  Annat 
igcd  thirty-five  yeaia,  mwried,  witneaa  dtcd, 
sworn,  purged  and  examined  ut  tupra^  de- 
pones. That,  in  the  month  of  April  last,  the  de* 
ponent  met  with  Allan  Breck  Stewart,  with 
whom  he  waa  not  before  acquainted,  and  John 
Stewart  in  Aucbnaeoan»  at  tfce  boose  of  the 
walk 'miller  of  Aucbosragan,  and  went  on  with 
tbem  to  thf  house :  that  Allan  Breck  Stewart 
avd,  that  be  bated  all  the  name  of  Campbell ; 
and  the  deponent  aaid,  he  had  no  reaaon  for 
doing  so;   but  Alton  aaid,  be  had  very  gonl 


^  1  do  not  fbid  in  Jamieson  thia 
«  walker'  (fuller)  with  which  professor  LesKt 
aiimsts  that  il  is  synonymous,  {gvnti  foiling* 

t  Piiblichoiiie-keMier.    Qo.  ii'a  atylM^ 

4 


101] 


fir  Murder. 


I  Ibr  Ht  tifeti  llMrMft«r  they  lell  Ifatt 
r  I  mi,  9tm  drnilciiig  «  dram  tt  anothi? 
if  xxmt  In  llie  dcpoDVDl*!  hotiie,  where 
}  wtnt  b.  Hid  drmkioiiie  drtiiis«  anrf  Allao 
ml  iIm  AraMr  MttverttHoD ;  tod 
makiii^  ^«  iA«e  Rpftwer,  Altao 
,  if  th»  depooent  had  aoy  respect  for 
I,  W  woohJ  telt  lliem,  llidt  if  they  of- 
lo  titm  out  the  possessors  of  Ardithiel's 
,  ke  would  roakeolack  cacksof  them  be* 
into  poisessioM  ;  by  which 
HI  ondersfood  shooiiog  thern^  it 
MS  phrase  in  the  country  :  that 
ltd,  he  did  not  blame  G tenure  so 
at  Ballieftolan  for  taking  these  posses - 
wharras  Gleoure  was  dofnc-  the  kiog^ 
a  I  ajul  Allan  Breck  replied,  That  besides 
Iktti  W  liail  antitber  gronnd  of  quarrel  agrjuosl 
Qmoiv,  Ihf  his  writjni^  to  colonel  Crawfurd, 
tltet  \km^  AQm,  was  come  home  from  France  ; 
ImI  libJA  lie  «vi*«  t£»"  riinntn^  for  him  ;  for  that, 
'     »  at  Ed  had  made  op  his  peace 

•  L  and  had  gut  his  pass^ 

1  in  Ins  pocket-book  :  that  the  de- 
I  a  Rtglit  of  it :  itiat  he  searched  his 
isclurl'^lboaic,  hut  coutd  not  tind  it  \  upon  which 
hi  lore  »  l«Lf  oiit  of  the  book,  and  said,  there  it 
wia,  Anddepmes^  That  he  said  twenty  times 
«fcr  fee  woahft  lie  fit -tides  h  ith  G  tenure,  where- 
9i*fm  hm.  met  liioi ;  and  wanted  nothiog^  more 
Ibw  to  oiaet  httti  at  a  coureutent  place.  De- 
lli«l«  at  this*  ttinpp  Allan  Breck  was  not 
,  fo  b«  oAold  walk  and  talk  as  well  as  any 
but  a  eouid  easily  \\e  observed,  he  had 
ilriakifi^.  Ctitaa  tcientiit  patet.  And 
iJi  IIm  Ituth^  as  he  shall  answer  to  God« 
(  Signed) 
,GtUMT,  Dlncan  Campbell, 


ten,  temtrix  to  Duncan  Camp- 
•tceeper  at  AnAat,  unmarried,  aged 
witnes)»  cited^  8%vorn^  putged  and 
liv     tht>    «jworn  iiiterpreier  above- 
6fjv  4,  some    Urae  after  the 

t7lb  dbj  Of  ^  i  ^  before  the  Brst  of  May, 

iktmm  Allan  Breck  Stewart  in  company  with 
i^km  Brrck  Stewart  in  Auchnacoan,  and 
Rsfcut  St«w»Tt,  In  the  niiU  of  Duror,  in  her 
«i0i8r'«  I»mf9**;  and  that  she  heard  Allan 
Briefc    I  '    ,    tiiit    he    would  not  shun 

GWn«r»  I  be  met  him  ^  by  which  she 

UdmiocKi  iu*t  lie  was  lo  do  hurt  or  harm  to 
Qfaiir*  w  lirrev^  h«  iaw  him.     Cuu$a  tcientiit 
ftitt,     Aoii  thia  ia  ibe  truth,  aa  she  shall  ati* 
ivcr  in  God  ;  and  declares  she  cannot  write. 
(Signed) 
F.  GftAVT  Akcu.  Cam; dell. 

rt  Sicft.art,    «fon    to  Robert   SlewaH, 
'  in  Cait,  Ag-ed  about  twenty,  unmarried^ 
eked,  %wnv^   :    r^'d  aud  exaniineil,  u( 
^f«,    ijr    tba    ^  lerpreter,    de^mnea, 

fbl,Mm«1lifi«4i^  Ai^^^l  :^t,  the  depoiietit  wan 
m  emmfmmf  wilk  Allaa  Breck  S^tewart,  John 
^  in  A«alwaeota»    llnacto  CaaipbelK 

r  m  Aonat,  ui  the  s«id  liuMcan 
'lio«»e:    ifnA   AUbu    Breck  coni- 
flibid  if  Coii0  Hoji  au£i&isi|(  Ok nurci  and 


A.  D.  list.  llOt 

Mr.  Camphen  of  Baltievedan  i  and  said  parti* 
cutarly  or  UleDure,  that  he  bad  sent  uoltce  H^ 
Fort-iVilliam,  that  he  was  in  the  oountry,  that 
he  might  be  apprehended  :  hat  said,  he  Mras  noi 
in  his  reverence,  ns  he  had  the  king  of  Prance'i  ( 
com  million  In  his  pocket ;  and  said,  he  woolj  | 
be  ereu  with  him  ;  and  that  be  would  take  hii 
opportunity    to    dispatch    or    murder  either  ! 
Glenure   or    BallieTeoIan,  beibre  he  le^  th4] 
country.     Depones,    that  Allan    Breck    wai  , 
much  in  drink  at  the  time  of  uttering  the  abov^  | 
expressions;  and  was  then  dressed  in  his  lontf 
blue  coat.     Cuusa  ncientia  patet.    And  this  it 
the  truth,  as  he  shall  answer  to  God  ;  and  de*  \ 
dares  he  cannot  write*  (Signed) 

P.  Gaamr.  Arcb.  Campbell.  \ 

Malcolm  Bane  Matc&lly  change- keeper  all 
Portnacrosh,  aged  fifty  years,  married,  witoes*  j 
cited,  sworn,  purged  and  examined  by  the  in** 
terpreter  ut  supra ^  depones.  That,  some  tiiii#1 
in  April  last,  Allan  Breck  Stewart  and  Johaj 
Stewart  in  Auchnacoan  came  to  the  denooent^t  , 
house    after  nigiitfall,  and  sat  up    all    iiight 
drinking  :    that,  next  morning,  John  Maccolj^ 
then  servant  to  the  deponent,  now  in  Shunis  J 
catne  into  the  company,  in  a  shabby  cx>ndi«  I 
lion  :  that  Allan  Breck    asked  who  he  was  ?  ' 
That  the  said  John  Stewart  answered,  That  h#  J 
was  an    honest  poor  man,    with  a  numerous 
family  of  smalt  children ;  and  that  it  would  b# 
gre&t  chanty  in  any  body  to  assist  him:  upoii 
which    Allan    Breck   desired    the   said  Johl|j 
Stewart  to  give  the  said  John  Maecoll  a  sloni 
of  meal,  and  he  would  pay  for  it  ^  which  tk«  j 
said   John  Stewart  promised  to  do:  ihat  thnt] 
said  Allan  then  ^re  the  said  John  Mi^coll  m 
dram,  and  told  him,  if  be  would  fetch  him  th«  [ 
red   fox^s  skin,  he  would  |{ive  him  what  wai 
much  better ;  to  which  the  said  John  Maccotl  j 
answered,  that  he  was  do  sportsman  ;  and  that  f 
he   was   much  better  skilled  in  ploughing  ot  i 
delving.      Depones,   that  the  deponent  gars  j 
no  great  notice  to  these  expressions  at  the  time  | 
but,  afitr  he  heard  of  G tenure's  murder,  be- 
lieved he  oieant  Glenure,  as  be  wm  cornmooly 
called  Colin  Roy,  which  meant  Red  Colin,  in 
the  country.     Causa  icicntia  patet.    And  thit 
is  the  truth,  as  he  ah  all  answer  to  Ood  ;  an^j 
declares  he  cannot  write.         (Signed) 

P.  Grant.  Abch.  Campjullu 

ifffHe   Mac€oilf   spouse  to  Bfaleolui   Bans  | 
Maccoil,  the  preceding   witness,  aged  ahoat'i 
forty,  witness  cited,  sworn,  purged  and  exa* 
mined  ui  ntpra^  by  the  mierpreter,  depo«ie8»  ' 
conform  totlie  said'Maicokn  Bane  Maccoil,  iht' 
(ireceding  wiine^*  tn  omtubut^  except  that  tht 
said  AMan  Breck  and  John  Stewart  iu  Auchna* 
coan  went  to  bed  for  a  short  rime  ;  but,  whe*  1 
Iher  they  slepi,  or  not,  the  de|]onent  know^i 
not.     Cauia  KientU  ptitet.     And  this  is  th#J 
truth,  as  she  shall  aruw^r  to  God;  and  do*^ 
dares  she  caniiol  writs.  (Skgncd) 

P.  GuAvn .  Arcu.  Campdell, 

Jithn    Stewart  elder  of  Fasnaclotch,  aged 
,«iil^-ait  yeirt,  latifiW,  iwoni|  puigsd  tA4 


103]  25  GEORGE  II. 

eKlunined  ut  $upra,  depones,  That,  upon  the  ^ 
Bloiiday  before  the  murder  of  Oleoure  was 
committed,  Allan  Breck  Stewart  was  then  at 
the  deponent's  bouse,  having  been  three  nights 
there,  accompanied  b^  Charles  Stewart,  sou  to 
the  pannel :  that  he  told  Allan  Breck,  that 
Glenure  was  come  from  Edinburfjrh  with  a 
warrant  to  remove  the  tenants  ;  to  which  Allan 
Breck  said,  that,  if  there  was  a  warrant,  there 
was  DO  more  to  be  said ;  but  that,  if  he  had  no 
warrant,  he  would  not  be  allowed  to  remove 
them:  that  the  deponent  told  Allan  Breck, 
that  a  plea  with  Glenure,  coocerninji;  the  re* 
moving  of  these  tenants,  would  be  costly  for 
James  Stewart  in  Aucharn  to  support:  that 
the  reason  he  named  James  Stewart,  waa,  that 
he  was  the  |)er8on  who  acted  in  behalf  of  the 
tenants:  that  the  distance  between  the  depo- 
nent's house  and  the  late  Glenqre's  is  about  a 
mile:  that  he  beard,  on  Sunday  the  10th  of 
May,  that  Glenure  was  going  to '^ort- William  ; 
aud  Allan  Breck  left  his  house  about  nine 
o'ck>ck  Monday  morning.  Causa  iekntia  patet. 
And  this  is  traih,  as  he  shall  answer  to  God. 
Aroyli..        (Signed)  Jo.  Stewart. 

Jamet  Stewart  younger  of  Fasnacloich,  aged 
S9  years,  unmarried,  sworn,  purged  and  ex- 
ammed  vt  supra,  depones,  That  Allan  Breck 
Stewart  came  to  Fasnacloich  about  the  Bth  of 
May,  and  stayed  three  days:  that  he  went 
away  on  Monday  the  nth,  about  nine  in  the 
morning :  that  be  was  going  to  leave  the  coun* 
try  soon,  but  would  see  them  again  at  Fasna- 
cloich before  he  went  away :  that  he  was  tben 
dressed  in  a  loug'blue  coat,  red  waistcoat,  black 
treeches,  and  a  feathered  hat:  that  he  saw 
Allan  Breck  the  next  day,  being  Tuesday  the 
ISth,  at  Ballachelish :  that  he  was  then  dressed 
in  a  bhu;k  short  coat  with  round  white  buttons, 
and  a  dark  great  coat  over  it,  with  trowsers  on, 
and  a  blue  bonnet :  that  the  deponent  took  no- 
tice to  Allan  Breck  that  he  had  changed  his 
dress ;  who  answered,  that  he  did  it  because  the 
day  was  warm :  that  the  deponent  was  informed 
at  Ballachelish,  in  company  with  Allan  Breck, 
that  Glenure  was  gone  to  Fort- William :  that 
when  he  parted  with  Allan  Breck  at  Glenco's 
bouse,  Allan  Breck  told  the  deponent  that  he 
was  going  to  Calhirt,  and  would  return  the 
next  day,  and  did  not  see  him  since :  that  on 
Sunday  the  lOlh  of  May,  he  heard,  being  in 
company  with  Allan  Breck,  that  Glenure  bad 
got  an  order  from  Edinburgh  to  remove  the 
tenants,  and  was  gone  to  FVirt-William ;  and 
that  this  was  at  Fasnacloich.  Causa  seientUt 
patet.  And  this  is  the  truth,  as  he  shall  an- 
swer to  God.  (Signed) 

Aagyll.  Jambs  Stewart. 

John  Stewart  younger  of  Ballachelish,  aged 
96  years,  unmarried,  sworn,  purged  and  exa- 
mined ut  supra,  depones,  That,  upon  Tuesday 
the  I2ih  of  May  last,  he  saw  Allan  Breck  Ste- 
wart at  his  faiher's  house  of  Baltachelifth,  and 
heard  bim  avk  questions  about  Glenure's  tra- 
velling to.  Lochalter :  that,  on  Thursday  the 
14Ui,lal0at  nighti  Donald  MuiDtyn,  •  mw 


Tfialo/JameM  Sttwarf^ 


tiu 


▼ant  of  the  pannel'a,  told  thpe  dtpoBcat  of  tbo 
murder ;  and  that  he  was  going  with  a  »€•» 
sage  to  Appin  from  Janaes  Stewart  his  master^ 
to  give  him  an  account  of  the  morder:  that  he 
arrived  at  App'm's  hooso  before  the  said  aervaat 
came  there :  that  he  returned  to  Appin'a  boiaiQ^ 
instead  of  going  to  the  panneFs  house,  when  hm 
had  intended  to  be :  that  he  (eld  Appin  of  the 
murder,  at  which  he  expresseil  great  ourpriat 
and  concern.  Depones,  that,  in  the  time  ef 
the  spring  circuit  in  thin  place  in  May  last,  he 
waa  summoned  to  be  of  the  jury  ;  but,  at  the 
earnest  request  of  the  pannel,  that  he,  the  di^ 
pon'ent,  should  be  present  with  a  notary  at  the 
removing  of  the  tenants  from  the  estate  of  Ard«  - 
shiel,  he  was  a-going  on  that  errand  to  the 
pannel's  house ;  but  returned  to  Appin,  npoe 
hearing  of  the  murder  committed  that  day. 
Causa  scienti4c  patet.  And  this  is  truth,  as  be 
shall  answer  to  Gud. 

(Signed) 
Argyll.  John  Stewart, 

Katharine  MaccoU,  servant  to  the  pannel» 
Qged  16  years  and  upwards,  who  bein^  so*  , 
lemnly  sworn,  by  the  forenamed  sworn  inter- 
preter, purged  of  malice  and  partial  counsel, 
and  examined  and  interrogate,  depones,  That 
she  saw  Allan  Breck  Stewart  at  the  pannel's 
house,  upon  Monday  the  1 1th  day  of  May  Uat» 
in  the  afternoon,  dressed  in  a  blue  side  coat, 
red  waistcoat,  and  black  breeches ;  and  does 
not  remember  to  have  seen  him  in  any  other 
dress  that  day.  Depones,  that  the  pannd 
went,  in  the  atlernoon  of  that  day,  to  Keels,  to 
meet  Mr.  Campbell  of  Airds,  and  that  it  waa 
late  at  night  before  he  came  home ;  but  that 
the  family  had  not  supped  when  the  pannel 
came  home;  and  that  tne  pannel  supi>ed  in 
company  with  Allan  Breck  Stewart,  Fasoa* 
cloich's  daughter,  and  Archibald  Cameron, 
nephew  to  Fasnacloich,  and  the  pannel's  fa- 
mily. De|K>nes,  that  she  saw  the  said  Alhm 
Breck  Stewart,  on  the  morning  of  Tuesday 
the  12th  of  May  last,  dressed  m  a  donnish- 
colouied  great  coat,  in  the  pannel's  house  ; 
and  that  she  saw  him  go  out  at  the  door 
dressed  in  the  said  dunnisli- coloured  ^reat 
coat.  Depones,  that,  upon  the  evening  of  Fri- 
day the  15th  of  May  last,  as  the  deponent 
came  in  at  the  door,  Margaret  Stewart,  spouse 
to  the  pannel,  being  then  in  the  cellar,  called 

Xn  the  deponent,  who  then  saw  the  said 
rgaret  Stewart  put  a- side  blue  coat,  a  red 
waistcoat,  with  something  else  that  the  depo- 
nent did  not  observe,  into  a  sack,  and  delivered 
them  to  the  deponent,  desiring  her  to  hide  them 
some  way  without.  Depones,  that  the  said 
Margaret  Stewart  did  not  tell  the  deponeet 
to  whom  the  clothes  belonged ;  but  that  the 
deponent  thought  the  said  ooat  and  waistcoat 
were  Alhin  Breck's.  Depones,  that  she  west 
awav  with  the  said  sack,  containing  the  nid 
dothea ;  and,  aa  riie  waa  going  up  the  brae,  ie 
order  to  hide  them,  was  overuken  by  DugaM 
aed  John  Beg  Maecolls,  servants  to  the  uawMl, 
wkohedaonegnBiaiid  awordi}  and  tkenifl 


J^  Murder^ 

\  Mioerfl  mkmi  4m  4«|NMieiit,  whut  ilie 
M^fsi  liilm  ttdi  f  The  ile|ionent  oti«iv7efe<l, 
}kmm  ABtti  Bff<eck'«  ctolbcm ;  and  ahm  «he  wai 
i^  tbrnn ;  ami  ibat  uccordingly  the 
cooUiniiiif  Ibe  iihave  cl»tli^,  wai 
lid  in  llt«  nottr  nbove  the  pan n el's  house,  hy 
Ite  Mi4  IHmM  Maccoll,  in  (iresence  of  ihe 
L  Dipppti,  thai  upon  8al unlay  the 
rifijr  kai,  Jn  Uie  evening,  |U«  saitflVlrs, 
K  to  the  pannd,  ile&ireU  the  tie- 
_  lo  carry  back  whkt  she  had  hid,  and 
>  it  at  Um  hack  of  ttie  hrewhoiti$e  ;  which 
•eoanlingiy  did ;  and  has  not  !«een 
Depones,  th^Ll  Alexunder  fiiine 
by  Ihe  dcpouent  about  the 
\  dlftiitefliOir'  l>e)>ones«  tliat  sotiie  time 
BOMT  httt^  after  the  above  pt^riod^  Solomoo 
BaaeMaoDsti,  aerrant  to  the  pannel,  told  iht? 
4tfiBmtnX^  llMit  ihe  said  51ri.  Stewart,  spouse 
la  tbe  |MiiiiH,  d^^stred  her  to  conceal  what  she 
Itibew  albcinl  the  al>oye  clothes,  in  case  she 
•Im»«I4  W  aabad  ur  examined  about  them.  And, 
]  ifil<rfQ|ale  for  the  paonel,  depones,  that 
Bntk  ntawftrt  diil  tiot  lie  in  the  pannefs 
*  ^poo  Holiday  nifjfhl,  the  lltl)  day  of 
Ma/  lart,  b«l  Uy  in  the  bam.*  aa  the  depuoent 
ttoiDi.  Cmg^  iCienU4e  pMUt ,  And  this  m  the 
m^^jfh  M  ^^  *hall  answer  to  God  ;  aud  de- 
^^^Bia  dbe  eaotiol  it  rite. 

■  hmtWL  CAvcpaCLL.    J  a.  Ferguson. 

I    -*" 


A.  D.  1752. 


[loa 


h 


drtkSimU  Otmertm^  son  to  Allan  Dow  Ca- 
tune   chaiJiie -beeper  in   Mary- 
bn'  «r9,  unmarried,  sworn,  purged 

••«  rupra^    hy  Mr.   Archi)mld 

Caoipbeti,   ft  titute   of    Ar|>:y II -shire, 

Ityaei^  hmu-^  -  ate  for  the  paouel,  That, 

afiaa  MaBilay  the  lUh  day  of  May  last,  the 
from  Faanacloich**  house  to  the 
*i  liO(i9»e  after  mid  day  :  that,  some  little 
he  came  tliere,  he  saw  Allan  Breck 
nrv:  that  the  pannel  tvag  not  at  home 
afcta  Iba  dafionenl  came  ^r^t  ttiere^  but  eatne 
bama  bdbrr  "7'*^:~'l:  that  the  deponent, 
Altai.  id  the  family,  gut  in  one 

md  miyjr^i  : -^^ihpr  :  that  he  did  not 
ifcaiiic  AlUa  Breck  and  the  pannel  speak  in 
pivrakr  tbai  mgbt :  that  the  deponent  and  Allun 
tbvwart,  the  iiiuiDeP-t  son,  lay  in  one  bed,  Allan 
and  Charle*  Ntewart,  ton  to  the  pannel, 
bed,  in  the  iame  barn  :  that,  to  the 
iVQieiDbfsnce,  tliey  all  went  to  beil 
'  time,  and  ^ot  up  to^jfether  next 
thai  th«  d4»}»oneiil  did  not  uh'serve 
fttfeac*' '  '^use  next  morning  when 

•**T»iw  i^  "f       r,:i,oii  nmoogthe 

'  ki  I  Scotland,     In 

tii:  C4>  «■  M  u  V «  "t^^  > ^  ^  >  <  ^<i  p^  of  V tsitors 
laawouM  derange  tiie  cecooomy 
if  a  viofa  fiaiialNMl  fy^rif^^  Wbeu  they  goto 
hai,  titaj  ate  oet  nadad  for  want  of 

M    aa  abr#t  ilafibals  spread   on 

ia  a  bant,  tbrm  aitpplemeutary  htdn  for 
af  1km  fiieali  M  (bo  tiou«e  cauaot  coa^ 


he  got  itp.     Cauia  tcienhm  paiet.     Ami  tb 

18  truth  as  he  iihail  answer  to  God, 
Aiicit,  CASipBttx.  (Signed) 

Argyll,  AttcutsALB  Camer 

John  Breck  Maccoifthich^  chanjcr^^keepfr 
Kintal  line,  ag-^d  about  40,  married,  witrN 
cited,  sworn  and  puri^ed  by  thr  tbrename 
aworn  inierpretpr,  ut  tuprn^  iU>iHmvn,  "f'hnt,  in 
the  bei^innin^  of  Kumuicr  la^t,  Ik-Iok?  WhiiMun 
day,  Duncan  Campbell,  sheriff-iiuhsiituie  ot 
K[|lin,  toid  the  deponent,  (hat  if  hf  could,  witlil 
truth  and  honettty,  makt:  any  discovery,  texid^l 
ing  to  discover  the?  murderers  of  Glennre,  itivaf] 
probable  he  would  mil  be  turned  out  of  his  poa» 
session.  Depones,  that,  upcm  ihe  14lh  day  ofl 
May  last,  John  Be^'  Maccoll,  servant  lo  tlisl 
panuel,  came  to  the  depouent^s  house  aloutJ 
seven  o'clock  in  the  morning,  aud  told,  that  th^| 
pannel  had  desired  the  deponent  aud  John  31or^| 
Maccoll,  another  stivaut  of  the  panuelu,  t^J 
ferry  the  said  John  Bp{^  Maccoll  from  his  bousftJ 
to  Lochaber,  that  lieing-  the  Bhoi  test  road  froui^ 
Aucharo  to  Fort -William  ;  that  the  deponent 
At  the  first  declined  it;  but  upon  John  Be^'fl 
telHng^.  that  it  was  the  panncrs  desire  that  n#] 
should  be  ferry  ed  thci-e,  they  carried  him  over  J 
according-ly.  Depones,  thai^  in  the  aiteruufinl 
id  the  s^iut;  day,  before  sun  set,  the  said  Johtif 
Ueg'  MnccoU  came  back  to  the  depwneut'i^ 
hou»e,  and  called  lorhiilla  mutchkiu*  of  aqua 
vita:,  but  did  not  sit  down :  thnt  durin^f  the! 
drinkini^  of  the  dram,  the  deponent  askrd  the] 
sQid  John  Beg-  Maccoll  if  he  had  l»cen  at  Kurt*  } 
William  ?  and  if  he  had  got  Charks  Slewar|,.j 
notary  ?  (which  be  told  in  the  morniii^^  ^aprj 
bis  errand  to  Fort-William)  John  Beg  Maceolll 
answered,  that  he  had  been  at  Marybur^h,  bt||.| 
Charles  Stewart  was  not  at  home.  Bepone^J 
that,  upon  Tuesday  the  12ih  of  May  lixst,] 
Glenure  sent  notice  i»  the  depoue4it,  that  h^j 
and  some  other  company  whs  to  bt*  at  his  hoii<$oJ 
upou  Thursday  then  next,  and  dessitttl  that  hei 
might  be  prepared  for  entertaining  them  ;  noil  | 
that  he  accordingly  mtidc  provision  for  them.  | 
Depones,  that  he  (old  thai  Glrnnre  wa-s  lo  l»#  ] 
at  his  house  that  nii^ht ;  and  ihut  ihe  uhal^J 
neighbourhood  knew  of  it ;  and,  upon  the  pKn-'l 
rrel's  rii  term  oratory,  depones,  that  <t  lei  in  re  T 
frequently  went  to  Lochaljer  by  Mamuckie, 
beinj^  a  shorter  road  to  the  ferry  of  Ballachelish 
than  ihestratfi  of  Appin  ;  and  he  once  coming  ' 
from  Lochtiher,  lai>ded  at  Kintalline  ;  and  th«^  j 
n  person  paj^sinf^  from  Gleoerearan  to  ttie  fcrrjf  i 
of  BaltnrheliKh  hy  Mamuckie,  does  not  ^  j 
throojyh  the  wood  of  Lcttermore,  nor  by  Khf  { 
tallioe.  Depones,  that  he  was  warned  to  re*  j 
mote  from  his  possession,  being^  a  part  of  Ard«  J 
shiel  estate^  rI  Whitsunday  last,  nod  f^mploye^l 
no  person  to  keep  fiim  in  possession.  Depone^ J 
that,  some  time  after  he  had  got  his  citation  ofl 
warninijt  the  paunel  passed  hy  his  house  ii<  j 
liorHeback,  and  ankcd  it  he  had  his  copy  of  citai 
tioa  in  the  removing  ?  The  deponent  answered 

.    -■  ■ — c J 

^  VA  metture  cqtiil  to  la  Eoglisb  pint,^j 
iamieioo. 


lorj 


26  GEORGE  11. 


Trial  qf  James  Steveartf 


[108 


be  had  ;  the  paonel  called  for  a  sigbt  of  it ; 
and,  upoQ  the  deponeDt^s  pruducing  it,  the 
pannel  said  he  would  keep  it.  And  Ming  in- 
terrogate if  Uie  pannel  informed  him  that  he 
was  going  to  Bdinburgh,  and  was  to  produce 
liis  copy  of  citation  there  ?  depones,  Not ;  but 
only  that  he  was  going  southward.  Caum 
Mcientia  patei.  And  this  is  the  truth,  as  he 
ahall  answ^  to  God ;  and  declares  he  cannot 
write.  (Signed) 

P.  Grant.  Archibald  Campbell. 

Alexander  Stewart  of  Ballachelish  elder, 
aged  G8  years,  widower,  sworn,  purged  and 
examined  ut  tupra,  depones,  That  Alhin  Breck 
Htewart  called  at  the  deponent's  house  upon 
thi?  12th  of  May  last,  and  that  James  Stewart 
younger  of  Fasnacloich  was  then  at  the  depo- 
i\ent*s  house :  that  upon  the  13th,  about  seven 
or  eight  in  the  afVemoon,  he  came  ag^in  to  the 
deponent's  house,  and  lodged  with  him  all 
night,  Rtayed  the  next  day,  l^ing  Thursday  the 
14th,  till  eleven  or  twelve,  when  he  went  out 
with  a  fishing  rod  in  his  hand,  and  was  fishing 
ID  the  burn  near  the  deponent's  hou8e,but  he  did 
not  see  him  take  any :  that  be  did  not  take 
leave  of  the  deponent ;  and  did  not  return  ;  and 
lie  knows  nothmg  of  him  since:  thai  the  said 
Attan  Breck  Stewart  was  dressed  in  a  great 
coat,  and  under  it  a  short  black  coat  with  white 
iMitlons:  that,  when  the  said  Allan  Breck 
tStewart  was  fishing,  he  saw  a  great  coat  king 
upon  the  bank,  which  he  took  to  be  Alhin 
Breck  Stewart's:  tttl,that  evening  on  the 
14ih,  he  was  in  comoany  with  Glenare,  and 
left  him  very  near  the  wood  of  Lettermore : 
that  the  morning  after  the  murder  was  com- 
mitted, the  depooaot  really  thought,  that  AMan 
Breck  Stewart  might  be  tie  actor  in  this  mnr- 
te,  because  he  did  not  retom  to  this  deponent 
again.f  Causa  identic  patet.  And. this  is 
tmtb,  as  he  shall  answer  to  God. 
AsoTLL.  (Signed) 

Alex.  Stewabt. 

Donald  Rankine^  herd  lo  BaUacbeJi&h,  un- 
married, aged  about  eighteen,  witness  cited, 
•worn,  purged  and  ejUMoined  ut  iuprot  by  the 

4-  '<  This  expression  appears  to  me  equivocal 
and  suspicMNis.  It  most  here  be  observed,  that 
tha  common  method  of  taking  down  written 
•vidence  in  this  country,  is  not  to  express  the 
adoal  words  of  the  witness,  but  for  the  judge, 
«ir  eommiisioDer,  to  clothe  the  witness's  ideas  in 
the  roost  saitable  language  that  occurs  to  him. 
Thus  the  witness's  ^ea,  when  committed  to 
paper  by  the  Judge,  is  sometimes  very  different 
from  that  which  he  delivered. — The  judge  who 
dicuted  to  tiie  clerk  of  court  Mr.  Stewart  of 
Ballachdish'a  evidenoe  was  tlie  duke  of  Argyle 
himself.  I  apprehend  the  deponent  oieaned 
only,  that  he  really  thought  Allan  Breck 
might  be  guilty  of  this  muraer;  yet  his  evi- 
dence is  so  worded  as  to  imply,  that  the  actual 
perpetrator  was  not  without  oonspira(ori|  who 
were  jouied  with  him  ill    ooBlrifipg  this 


said  Archibald  Campbell,  sworn  interpreter, 
depones,  that  on  the  14tli  day  of  May  last,  ha 
saw  Alhin  Breck  Stewart  at  the  bouse  of  Balla- 
chelish, his  master :  and  that  the  said  Allan 
Breck  was  dressed  in  a  great  duo  coat,  under 
which  he  had  on  a  black  short  ooat,  with  sUver 
or  white  buttons  on  it :  that  before  mid-day  be 
went  up  with  a  fishing- roil  to  the  water-side, 
where  ne  saw  him  fiuiing  up  the  water :  that 
he  has  not  seen  him  since.  Causa  sciemti^ 
patet.  And  this  is  truth,  as  he  shall  answer  to 
God ;  and  declares  he  cannot  write. 
(Signed) 
P.  Grant.  Arch  .  Gaupbclu 

Archibald  Macinnett  ferryman  at  Ballache- 
lish, witness  cited,  aged  65  years,  married, 
sworn,  purged  and  examined  ut  supra^  de« 
pones,  That  he  met  Allan  Breck  Stewart  near 
the  ferry  of  Ballachelish,  u^ion  the  evening  of 
Wednesday  tlie  IStli  of  May  last,  as  tha  said 
Allan  returned  from  Glenoo.  Depones,  thaL 
after  mid-day,  upon  Thursday  the  14th  day  of 
May  last,  as  the  deponent  was  sitting  near  the 
ferry  of  Balkushelisb,  with  the  son  of  John 
Campbell  in  Stronmellachan  in  Glenorchie, 
Allan  Breck  came  behind  them,  and  boasted* 
and,  upon  the  deponent's  looking  about,  de* 
sired  hnn  to  come  to  him ;  whicn  the  depo- 
nent did ;  and  the  said  Allan  enouired  of  him, 
if  Glenure  had  crossed  the  ferrv  from  Locbaber 
to  Appin  ?  The  deponent  told  him,  he  was 
sure  ne  did  not :  that  upon  this,  Allan  Breck 
went  awsy  towards  the  high  road ;  had  on  a 
dun-coloured  big  coat,  and  had  no  fishing- 
rod  ;  and  the  deponent  has  not  seen  him  since. 
I>epones,  that  he  is  ferry er  upon  the  Appin  ' 
side,  where  this  conversation  happened.  Causa 
scientia  patet.  And  this  is  the  truth,  as  be 
shall  answer  to  God ;  and  declares  he  cannot 
write.  Andfurtlier  depones,  that  he  heard  no* 
body  suspected  for  the  murder  of  Glenure,  bnt 
the  said  Allan  Breck.  Depones,  that  Glenure 
was  expected  Imck  upon  the  Wednesday ;  and 
the  deponent  was  sure  he  must  be  back  the 
Thursday,  as  it  was  currently  reported  in  the 
country,  he  was  to  have  a  meeting  with  soma 
goitlemen  at  Kintalliue,  Thursday  night.  And 
tnis  is  also  truth,  as  he  &hall  answer  to  God. 
(Signed) 
P.  Grant.  Arch.  Campbell. 

Donald  Stewart  in  Ballachelish,  aged  about 
30,  married,  solemnly  sworn  by  ArchibakI 
Campbell,  writer  in  Inverary,  sworn  interpreter, 
who,  being  purged  of  malice  and  partial  coun- 
sel, examined  and  interrogate,  depones.  That 
upon  the  15th  day  of  May  last,  he  met  tho 
pannel  in  Duror,  upon  the  marches  of  Auchin- 
darroch,  opposite  to  the  panners  house.  Upon 
the  deponent's  regretting  tliat  such  an  accident 
as  Glenure's  murder  should  happen  in  thn 
country,  the  pannel  joined  with  him,  and  said, 
that  he  was  informod  that  one  Serjeant  Mors, 
alias  John  Cameron,  had  been  threaicninf 

*  <Cougbc4'i€C  jamicmD'sDiol.TOcTt 
ho8t|tohmiu 


/or  Murder. 

f  tn  Frmnce,  but  tlril  not  inform 

y  lolil  liitii  90 .    l>«  [mn  es,  Ih  ut » 

I  More  litis  not  been 

ru  uli  of  May 

bt- 1    !  ,  i\   :i      i      J  .icinishtUen 

li,  DOW  to  Larichi  came  to  the 

I  Intin  th«t  <Hie  without  wanted 

thai  this  message  en  me  to 

)'ii  ijwn  bouse  :    ihatf  when 

•  fitd  Katharine  Macinish  fn- 

III  WS4  Allan  Breck  that  wanted 

be    Wiui   a    little    oUoire  the 

I  Lrae  :  that  the  deponent  went  up 

1  tsiet  Ailati  Breck,  who  was  then 

great  ^at,  and  a  dark  short  coat 

ikile  metal  buttons  ;   the  iIe[»o- 

^  Une  niiirdtr,  and  s^aid  it  could 

V,  AlUu  Ureck,  was  ahoui  it ; 

Sreck  answered,  that  he  heard 

,  had  no  hand  in  it ;  to  which 

ilied»  lie  did  not  believe  hitn* 

aaid  Allan  Breck  Htewart 

f  fee  was  going  immediately  to 

,  was  rery  scarce  of  money, 

:  then  for  KoahNuacoan ;  and  de- 

nl  to  acquaint  the  pannci,  that 

to  Koalivnacoiin ;    nod  desired 

il«,  to  Kt  nd  him  money  there ;  and 

ftttbeti  promtaed  to  acquaint  James 

like  above  metaage.     Deponcfi,  that 

"      *>  mid,  he  believed  he  would 

[  IImi  tntinlerf  and  upon  that  ac- 

r  fr«a  a  deserter  lorrnerly  from 

Plififtft  necessary  for  him  to  leave 

DejKmca,  tliat,  before  he  had 

on  with  Allan  Breck  he  as- 

;  the  eoriiae  of  <;;lcnure  to  the 

that,   fther  the  conversalioii 

I  abinil  aerjeant  More«  he  de- 

mtte  irom  Allan  Breok  to 

tk>l  tne  pannel  did  not  say 

Mod  the  money  or  not : 

happened  about    ten 

of  Friday  the  15th  of 

[.ttet  tli«re  wan  nobody  |>reaept. 

I  Sunday  the  17Ui  of  May 

rBine  Stewart*  packman 

•  of  Larich  in  Glenco, 

that  he  had   been  at 

%  tMniraati  to  Appin  in  Ko- 

mlhtr  three  or  fire  guineas, 

Ipoaitive  which,  that  he  had 

y  to  be  left  with  the  said  John 

Allan  Breck 't  use,  if  he 

lloldtbe  demioeni,  that  be  left 

Hkfliiid  John  Breck  Maccull^ 

aid  Allan  Oreck.  And,  upon 

^  put  lor  th«  panoeL  depones, 

firt  <v  v-'ifertngthe  above 

_  Jlai'  '  the  pHnnel,  the 

llrlr^  ^  k  himself  did  not 

i   it?    To  which 

t*    rei(ir_'rikl>rance| 

^e  Bua- 

iier;  to 

net  Eniwvriid,  ibal  h«  bvpttd  in 


A.n.  1752.  IU9 

God  Allan  Breck  was  not  guilty  of  the  murder. 
Depones,  that,  during  the  above  conversation 
ivith  the  pannel,  Alexander  8tewart,  Duncan 
Maccombich,  and  several  other  poasesaors  of 
Auchindarroch,  were  in  the  adjoining-  field 
ddvin^^  but  at  such  a  distance  that  the  depo- 
nent cannot  think  they  could  hear  the  ib^vt 
conversation.  And,  being  shewn  the  short 
black  coot,  with  clear  white  buttons  ou  the  breast 
and  pockets,  and  the  blue  striped  trowsers,  now 
lying  in  the  clerk^s  hands,  depones,  that  tha 
said  Allan  Breck  wore  such  a  coat  and  trowsera 
upon  Tliursdav  the  14lb  of  May  Jast ;  and 
saw  him  in  it  the  forenoon  of  that  day  at  Balta^ 
chchsb.  And  further  depones,  that  be,  tba 
dfpunent,  ts  manied  to  a  daughter  of  Stewart 
uf  Bailachelish,  and  litays  in  the  house  with 
him  :  that  her  mother  was  daughter  to  Htewart 
of  Annat,  in  Perthshire.  Causa  ictentia  patet. 
And  this  is  the  truth ^  as  he  shall  answer  ta 
God :  and  depones  he  cannot  write. 
(Signed) 
P.  GiuKT.  Aech.  Campbell. 

John  Mticdanald  of  GlencOj  aged  26  years, 
unmarried,  sworn,  purged  and  examined  ut 
iuproy  depones,  That  on  the  12lh  of  May  last» 
Allan  Breck  Stewart  came  to  Carnock,  thv 
house  of  the  deponent :  that  he  stayed  there 
but  a  very  little  time,  viz.  not  above  a  quarter  of 
an  hour  :  that  the  dejioneot  had  no  conversa- 
tion with  bim;  and  the  said  Allan  Breck 
Stewart  went  away ;  That,  on  Friday  the  15lh 
of  May  last,  the  said  Allan  Breclc  Stewart 
canve  again  to  U)e  said  house  at  three  or  four 
o'clock  in  the  morning,  and  knocked  at  th« 
window  of  the  said  house  when  thefamily  wer« 
all  in  bed  ;  that  the  deponent  went  to  the  door 
of  his  house,  and  there  saw  Allan  Breck 
Stewart,  who  gave  him  the  first  notice  he 
had  of  Glenure*s  being  murdered  the  evening 
before  in  tha  wood  of  Lettermore;  and  told 
him  that  be  was  to  leave  the  country ;  and 
ca.me  to  take  leaveof  the  deponent  and  bis  step- 
mother, who  is  a  sister  of  Ardshiers :  that  his 
clothes  were  tlien  n  dun  or  brown  great  jockey- 
coat  :  that  the  deponent  did  not  ask  Allan 
Breck  ^>tewart  any  questions  about  the  said 
murder:  nor  did  be  say  any  thing  upon  tha 
subject  to  Allan  Breck  Hlewart^  as  far  as  tbe 
deponent  can  remember:  Allan  Breck  Stewart 
told  him  be  was  to  go  the  moor-road  leading 
to  Rannoch  :  that,  upon  the  Tuesday  above* 
mentioned,  James  Stewart  of  Fasnacloich  was 
along  with  the  said  Allan  Breck  Stewart ;  and 
that  he  was  dressed  in  a  black  short  coat  with 
white  buttons.  Causa  tcientia  paUt*  And 
this  is  trutli,  as  he  shall  answer  to  God. 

Argyll.        (Signed)    Jqitn  Macdokaui. 

hobcl  Sicwart,  relict  of  Alejrander  Macdo- 
nald  of  Glenco,  aged  42  years,  sworn,  purged 
and  eXBjnined  ut  tupra^  depones,  that  upon 
Tu«tday  ll»e  laih  day  of  May  last,  Allan  Breck 
Stewart,  described  in  the  libel,  came  to  her 
house  at  Caroock,  in  the  afternoon,  accnnpa- 
nied  by  young  Fasnacloich,  dressed  in  a  black 
sborl  «<Hlt  with  white  «ltar  ^ultoni:  tUfttbi 


Ill] 


i;  GEOfiGE  II. 


TrM  ofJamei  Sknaitt 


[Hi 


itayed  aboat  an  boor:  and  then  went  away  to 
the  deponent's  sister'a  house  at  Callart :  that 
Allan  Ereck  Stewart  came  again  to  the  depo- 
nent'tt  house  on  Wednesday  the  13th  of  May 
last,  in  the  afternoon,  and  stayed  about  a  quarter 
of  an  hour ;  and  then  went  to  BaUacbelish  : 
that,  on  Friday  the  15th  of  Mav,  the  said  AHan 
Breck  Stewart  came  again  to  tne  said  bouse,  at 
4  o'clock  in  the  morning,  and  knocked  at  tbe 
window  of  the  house,  and  all  tbe  family  was  in 
hed ;  upon  which  the  deponent  went  ont  with 
her  step-son ;  and  she  asked  him,  what  news 
up  the  country  ?  To  which  he  answered,  A 
good  deal  of  news,  that  Glenure  was  killed  the 
ereniug  before  in  the  wood  of  Lettermore;  that 
lie  was  come  to  take  farewell  of  the  deponent; 
for  he  was  to  leave  the  country :  that  she  asked 
liim  no  more  questions  about  the  murder:  that 
she  asked  him  to  come  into  the  house ;  but  he 
answered  he  would  uot  stay  :  that  to  the  best  of 
her  remembrance,  Allan  Bredi  Stewart  told  her, 
that  Glenure  was  killed  or  shot :  that,  when  he 
knocked  at  the  window,  one  of  the  deponent's 
children  told  her,  that  he  heard  Alhin  Breck 
Stewart's  Toice.  Causa  tcientia  patet.  And 
this  is  the  truth,  as  she  shall  answer  to  God. 
(Signed) 
Argyll.  Isobbl  Stewart. 

Afary  Macdonald^  spOose  to  Donald  Mae- 
innes  in  Leckindum,  aged  about  40,  witneM 
cited,  solemnly  sworn  by  Archibald  Campbell 
of  Knockboy,  sworn  interpreter,  pnmd  of 
malice  and  partial  counsel,  examined  and  inter- 
rogate, depones,  that  a  little  before  son-aetting, 
on  Sunday  the  17th  of  May  last,  she  saw  Allan 
Breck  Stewart  sitting  in  tfale  wood  of  Koolisoa- 
coan,  less  than  a  mile's  distlmce  from  the 
liouses :  that,  upon  her  approach,  he  started  to 
liis  feet :  that  she  gave  and  received  the  com- 
mon salutation  from  him  ;  and  then  she  passed 
away  on  her  own  business :  that  he  waa  dron- 
ed in  a  long  dun  jockey-coat  and  bonnet.  And 
^leponea,  ahe  was  alarmed  at  meeting  a  nmn  in 
ar  place  so  remote.  Cauta  identut  patet. 
And  this  is  the  truth,  as  she  shall  answer  to 
God ;  and  declares  she  cannot  write. 
(Signed) 
P,  Gramt.  Arch.  Campbell. 

Duncan  Stewart^  trarelling  packman  in  Ar- 
larich  in  Rannock,  aged  32  years,  married, 
sworn,  purged  and  examined  ut  tupra^  de- 
pones, that  he  met  with  Allan  Breck  Stewart 
lipon  a  Monday  or  Tuesday,  about  tbe  18th  or 
S20th  of  May  last,  at  a  place  in  Rannoch  called 
Leckinstrensmeir ;  and,  having  asked  Allan 
whence  he  had  come,  and  whither  he  was 
iroingP  he  answered,  he  had  come  from  Balla- 
cheli.sh  or  Callart,  he  does  not  remember 
which  ;  and  that  he  was  going  to  a  shealing, 
where  his  uncle  Allan  Cameron  lived ;  ami,  as 
the  deponent  had  at  that  time  heard  nothing  of 
the  mnrder  of  Olt^ure,  he  said  nothing  to  him 
about  it :  thai,  two  or  three  days  thereafter,  the 
deponent's  sister  lold  him,  there  were  two  gen- 
tmnen  wanttmr  him  out-by :  and  after  he  nad 
g<st  bis  breakmsty  h«  want  out,  and  fint  saw 


Allan  Brack,  and  afterwards  Allao  Bfcdt  and 
Alhm  Cameron  together  at  a  know  $  and  that, 
how  soon  the  deponent  went  up  to  the  two, 
Allan  Cameron  went  back,  and  the  deponent 
proceeded  with  Allan  Breck  down  the  nountiTt 
about  6  miles,  where  be  had  occasion  to  on 
going  about  bis  own  business ;  and  parted  with 
him  at  a  place  called  Inching ;  and,  after  he 
parted  with  the  saki  Allan  Brack,  be  was  ap- 
prehended by  a  gentleman  called  Alexaoder 
Campbell,  who  supposed  the  deponent  to  bo 
Alhm  Breck  Stewart ;  and,  having  asksd  the 
deponent,  if  he  bad  seen  Allan  Breck  ?  he  then 
denied  hb  having  seen  him.  Ileponaay  that 
Allan  Breck  was,  at  this  time,  dressed  in  a  hmg 
blue  coat,  and  blue  bonnet.  Ccmia  9cieniim 
palet.  And  this  is  truth,  as  be  shall  answer  la 
God  ;  and  depones  be  cannot  write. 

(Signed)       Ja.  Ferguson. 

AUan  Oif  Cameron,  in  Arlaiieh  in  Rannock, 
aged  dS,  widower,  sworn,  purged  and  examined 
ut  tupra^  depones,  tliat  on  Monday,  he  thinks 
tbe  18th  of  May  last,  Allan  Breck  Stewart,  the 
deponent's  nephew,  came  to  the  depone^^ 
hoose  in  Rannock,  who  having  told  tlie  depo- 
nent, he  had  oome  from  Apptn  or  Olenoo*  the 
deponent,  who  by  that  time  bad  heard  a  mmonr 
of  Glenun's  mnrder,  said  to  the  saki  Allan, 
that  ha  doubted  not  be  might  .be  suspected  of 
it,  aa  he  was  a  looee  Mle  man  in  the  coontry; 
to  which  the  said  Allan  answered,  that  he  made 
no  doobt  hinMelf  that  he  wooM  be  sonceted  of 
it:  and  the  deponent  having  pressed  him  ear- 
nestly to  make  a  clean  breast,  and  tell  him  all 
he  knew  of  the  metter,  he  declared  with  an 
oath,  he  had  never  seen  Glenura,  dead  or  alive ; 
and  the  said  Allan  having  steyed  with  the  depo- 
nent till  the  Wedncadav  thereafter,  the  depo- 
nent fiwqnently  repeated  his  instances,  to  tell 
him  what  he  knew  of  the  murder ;  at  which 
Allan  Breek  became  angry ;  and  the  deponent 
desisted  further  inquiry :  that  the  said  AHan 
Brack  left  the  deponent's  boose  upon  the  Wed- 
nesday, whom  the  deponent  conveyed  Kttie 
mora  than  two  gun-shote  from  his  own  hoose  ; 
but  Duncan  Stewart,  chapman,  the  | 


witness,  who  had  come  to  the  deponent'a  hen 
that  morning,  went  akmg  with  them ;  and  he 
saw  tliem  toke  a  little  bve  road  through  cerot 
which  might  have  led  tnem  to  the  high  roadi 
bot  what  road  they  afterwards  took,  he  does  not 
know :  and  depones,  that  at  this  time,  Allaa 
Breek  Stewart  waa  dressed  in  a  big  eoet  of 
a  brownish  cohmr,  and  had  under  it  a  long  Uoe 
coat  lined  with  red,  red  waistcoat,  and  a  bonnet ; 
that,  upon  the  S4th  of  May,  as  the  deponent 
thinks,  haviiy  occasion  to  go  to  his  master  sir 
Robert  Menmes,  when  about  14  miles  from  hie 
own  house,  and  at  the  side  of  a  wood,  he  heard 
a  whistle  fi«m  the  wood,  and  loi>king  ahovt, 
■aw  it  to  be  the  said  Allan  Breck;  and  tbe 
conversation  he  then  had  with  him,  was  to  the 
following  purpose:  that  Alhm  Breck  having 
toM  him,  his  only  fear  waa  to  be  apprehended^ 
by  the  military,  which  might  prove  very  *Atal 
tohuDyafhebadbeoindeaerter}  whwh  M 


\ 


Jhr  Murder, 

/,  that  He  wat  very  sure,  Ih^ 
^iks^il  would  procure  him  his 
«'r  I  be  murderer;  to 
('  I  at  they  were  althis 

tUDc  ill  Mici.  t  >B(ce,  he  h'as  very  sure, 

w«f*  be  «p^  ;,  he   wotiUl  he  hanged. 

Co&M  irkrn/^or    imttt,      Aod  thU  is  tnitb^aa 
lie  tkftll  •niwer  to  God.     (Stgucd) 

Ja^  foLGVsos.  A)XAN  Cameron. 

Jstttt  Afiff«»  chdu^^e  keeper  at  Inaerhaildeo, 
^fti  31,    married^    swam,  pur^fed  and   exa- 
'  %t  i^pra,  by  *he  abore  Mr.  Archibald 
of  SiriMcfieh),  $v«oru  iuterpreter,  de- 
TUat  Allan  Breck  Stewart  came  to  the 
r  of  the  dcpont'tirif   bouse  at  InDerhadden, 
Itiwcf  p4rt  of  rCuimocli,  about  tvtiJight,  to- 
rdi  1^  9nti  of  Alay  last,  and  asked  the  de- 

roi^whowas:  theu  sUndJnif  at  his  own  door, 
'ii!(e  f  H^hich  lite  deponent  an- 
ft«  'il  then  Allan  fireck  tohl  him, 

IL  I'd  by  John  Stewart  in  Bohal- 

Iji  rj  lor  some  supply  of  provi- 

motrt  riwl  iMt:  UejMineol  desired  him  to  come 
mtu  kit  bmat^  and  that  he  would  give  htm  part 
of  fsdi  fiif«&a  he  had  ;  but  thut  Allan  fireck  de- 
difttil  to  c^ome  in,  hfing  in  a  hurry,  and  jitood 
Iq  iiirMf  of  aofne  ftnn  t^ion  ;  vi  hcrenpon  the  de- 
po^cot  hmugfit  him  some  bread  and  cheese,  and 
^  |i(p  sTire  lirni  liip  K;*rti«-,  conTcyt'd  him  a? 
I  h  i«l  Athn  Breck  de- 

ih'  <       II ;  and  that  he,  the 

mii  AlUa  lirrck,  inlend<?d  to  go  Farther  down 
tSi*  6«M«l/y  tiial  iii^^ht:  that  the  srid  Allan 
Brrck  WIS  <i reused  in  a  great  dun  coat  and 
ImooH;  antj  short  hose;  wliat  clothes  be  had 
•Mkr  llift  great  coat,  he  did  not  see  ;  that  be 
sv  alM»bt(T  under  his  left  arm  :  that  he  asked 
Imi  wliciice  f  tme;  but  he  did  not  tell 

htm*    t>e|ior  '  Tore  Allan  Breck  came, 

m  t^rv^ftii),  ^  punted  in  that  country, 

\imilm  was  i  iti  Glenure'K  murder ; 

•finite  h#^  !.  Mr*  led  him  at  the  time, 

M^cmti'  in  I  t  I  wa^  wanting  pro- 

(  .r.   ^  ^  itct.     And   this  is 

a«  be  shuil  answer  to  God.     And  Itirther 
Aspoo««    that    he   has  been  acquainted  with 
AtUo  Kn>di(  these  twelve  ^ears.     And  this  ii 
tkti  iroUt.  a»  Up  shall  answer  to  God. 
^  *  '  t..  (Signed) 

Ja?ae&  Mas, 

Jjkm   Cfom-fard,  esq.  lieutenant-colonel  of 

piMTat  r   •  ^       '  r    :       Ti''     -       ,.d thirty 

Jivs,  "  viuumed 

•^A^r  -  ..^    ,>i.u,^  ^  .an   [faper 

Hit  ^i  K'in^  Number  11  of  the 

llttiilirrj,  in   the  clerk'M    hinds: 

Am  «  w'ss  a. :  him,  before  it  was  sent 

•War      ni^i  ^vhcther  the  deponent 

lt>  Kon  with  the  pan- 

%^\  r;  he  answers  he 

^i&  u..  )iny.     And  being 

•iA^4,  <»  <  !oiin  Campbell  of 

ill                    inUl  the   (jrpooent,    that  Allan 

b'                    t  waft  A  deserter,  and  in  this  conn- 
amenl  lutiwert  negatiVG.    Cama 


A.  D-  1752. 


[114 


teientim  palet.    And  this  is  truth,  as  Ue  shaU 
answer  to  God.  (Signed J 

Akc^tll.  JottN  CEAwrciu>. 

Alexander  Stemart  of  Inncrnahyle,  ajjed  44  I 
years,  married,  sworn,  purged  and  examined  ul  j 
supra^  depones,  That  the  pannel  was  a  (preal  | 
cnany  years  aj^^o  tenant  to  his  brother  Ardahiel 
in  tiie  farm  of  Glendnmr,  and  was  removed  | 
also  several  years  ago,  the  deponent  doesnoij 
remember  how  many,  by  his  brother:  that  he  j 
again  became  tenant  in  tlie  same  lands  In  1749,  i 
or  perhaps  1748,  and  was  again  removed  by  th#  j 
deceased   Glenure,  the  factor,  at  Whitsunday  1 
1751,  and  the  lands  set  to  Mr.  Campbell  of  I 
Ballieveolan.     Depones,  that,  as  I  he  pannel  is  | 
the  deponent's  near   neighbour,  the  deponent  ] 
had  fre<]«eDt  opportunities  of  conversing  witli  ] 
him  touching  bis  said  removal:  that  the  pannel  J 
did   not  expect  to   have  been   removed,   ami  ' 
seemed  dissatisfied  that  he  was  ;  and  said,  he  ^ 
believed  Glenure  would  not  have  removed  him,  , 
if  Ballieveolan  had  not  sought  these  lands  from 
hiin.     Depones,  that  the  paonet  further  said^ 
that  the  tenants  generally  allowed  some  gra-  i 
tuity  to  Ardshiel*s   children  ;  and   that  these 
lands  were  the  best  farms  on  the  estate,  and  ! 
mo*>t  of  the  benelits  accresced  from  them  ;  ami 
!hou;^h  be  himself  could  be  provided  of  a  farm  ' 
elsewhere,  yet  the  children  would  be  depriveii  ^ 
of  that  benefit.     Depones,  thai,  about  the  end 
of  April,  or  beginning  of  May  last,  the  depo* 
Dent  thinks  about  the   beginnmg  of  Mavt  he 
casually  met  on  the  highway  with  Allan  Breck  - 
Stewart,  and  quarrelled  with  him  for  not  mak* 
ing  him,  the  deponent, a  visit;  and  Allan  Breck 
Slev^art  promised  lo  see  the  deponent  before  he. 
lef\  the  country  ;  but  the  deponent  has  never 
seen  him  since  that  time.  Depones,  that,  upoa 
the  Saturday  and  Sumlay  alter  Glenure's  mur- 
der, it  was  the  general  opinion  of  the  people  in 
the  country,  that  he  had  been  murdered  bj 
Allan    Breck    Stewart.      Depones,    that    the 
place  where  Glenure  was  said  to  be  murdered, 
and  where  the  deponent  observed  marks  and 
BVmptoiiiS  of  ihe  murder,  is  a  very  bad  road 
through  a  wood,  interspersed  with  rocks  and 
slooes  upoa  a  hanging  brae,  from  which  a  per- 
son may  descry  the  road  on  the  north  side  of 
the  terry  of  Ballachellsh,  and  where  a  person 
may  easily  conceal  himself,  jty  as  not  to  be 
seen  from  the  road.     Depones,    that  the  de- 
ponent is  acquainted  with  the  hand- writing  of 
Allan  Slewart,  son  to  ihe  pannel,  and  has  Ire- 
quently  seen  liim  write.    And  being  ?4hewn  a  let* 
tcr  sijjncd  Allan  Slewnrt,und  addressed  to  Dun- 
can Stewart  of  Glenburkie,  dated  at  Aucharn  the 
1st  of  April  1751,  being  the  writing  Number  7,  in 
the  inventory  of  writings  subjoined  to  tlie  liliel, 
depones,  that  it  is  like  A I  Ion  Stewart*s  hand- 
writing, and  the  deponent  would  take  it  to  be 
his,  but  cannot  be  positive  that  it  is  his.     De- 
pones, that  after  the  atloioder  of  Stewart  of 
Ardshiel,  the  factor  gave  the  j>annel  the  oppor- 
tunity of  having  the  greatest  mfluence  with  the 
tenants  of  jlrd^hii^l  nmre  than  any  other  per- 
son, by  allowing  the  |i«inufl  to  set  the  lands, 

I 


115]  25  GEORGE  II. 

which  heconkinucd  dowa  to  Wliitsunday  17M, 
if  not  at  that  term  also  ;  but  de|ione8,  that  th« 
pannerii  connection  with  the  family  of  AnUhiel 
gaFe  him  also  a  natural  influence  over  the 
tenants,  e?en  liefbre  Glenure's  factory.  De- 
pones, that)  before  that  lime,  the  tenants,  the 
deponent  belicTes,  paid  iheir  rent  to  the  lady  of 
Anlshiel,  and  she  ag^ain  employed  the  pannel 
to  deal  with  them.  And  being  mterrog^te  for 
the  pannel  whether  he,  the  pannel,  remo?ed 
Toluntarily  from  Olenduror  without  any  wam- 
iag  ?  depbnes,  that  he  did  not  hear  of 
any  warning,  but  that  he  removed  Tolunta- 
rily.  Depones,  that  Allan  Breck  Stewart, 
as  the  deponent  has  been  informed,  was  a 
soldier  in  the  kingN  army,  and  was  taken 
prisoner  by  the  rebels  at  the  battle  of  Preston  ; 
and  tliat  he  was  told  so  by  a  man  who  took  him 
from  among  the  prisoners.  And  depones,  that 
'  he  af\erwanla  joined  with  the  rebels,  where  the 
deiMment  saw  him.  Denones,  that,  afler  the 
battle  of  Culloden,  he  left  this  country,  aud.-aa 
lie  told  the  deponent,  went  o?er  to  France,  and 
entered  into  the  French  king's  serf  ice.  De- 
pones, that  the  deponent  had  no  occasion  of 
^ing  Allan  Breclc  Stewart  last  time  he  was 
in  the  country,' but  at  the  time  before  de- 

Kned  upon,  and  one  time  before  that;  and 
th  these  times  he  was  dressed  in  a  blue 
k>ng  coat,  a  red  vest,  and  a  feathered  bat, 
and'  black  breeches.  De|M>nes,  that  he  re- 
Ihembers  that  AUan  Breck  Stewart  came  over 
to  this  country  a  year  or  two  ago,  and  stayed 
9ome  weeks  among  his  friends ;  but  neither  at 
that  time,  nor  the  last  time,  did  he  seem,  so 
far  as  the  deponent  observed,  to  be  in  any 
apprehension  of  being  taken ;  only,  as  he  had 
been  once'  in  the  army,  he  did  not  chuse  to  meet 
with  any  of  the  king's  troops.  Depones,  that, 
at  the  time  the  pnnnel  removed  from  Glendu- 
ror,  he  told  the  deponent,  that  he  had  had  a 
meeting  with  Ballieveulan ;  and  that  there  was 
a  compromise  betwixt  them,  but  does  not  re- 
member the  particulars.  Causa  tcicntia  paUt. 
And  this  is  truth,  as  he  shall  answer  to  God. 

P.  Grant.  Alex.  Stewart. 

Donuld  Campbell  of  Airds,  aged  47  years, 
marrieil,  sworn,  purged  and  examined  ui  tupra^ 
depones,  That  the  pannel  was  employcil  by 
the  deceased  Glcnure  for  some  time  as  his  sul!- 
factor  in  levying  the  rents  of  Ardshiel,  and 
setting  the  lands  ;  and  the  pannel  told  the  de- 
ponent, that  whatever  was  made  of  these  rents 
over  what  was  paid  into  the  exchequer,  was 
accounted  for  to  the  children  of  Ardshiel: 
and  when  he  removed  from  Gleuduror,  he 
told  the  deponent  that  he  had  reason  to  believe; 
that  the  said  excrescence  of  the  rents  of  that 
farm  would  still  be  accounted  for  to  them  ;  and, 
in  that  case,  he  would  be  easy  as  to  his  own  re- 
moval. And  depones,  that  Ardshiel's  chil- 
dren, at  the  time  of  the  rebellion,  were  all 
young;  his  eldest  son  being  now,  as  the  depo- 
nent believes,  about  eighteen.  Depones,  that, 
in  spring  last,  the  deponent  had  a  letter  from 


Trial  fifj4i}ne$  Stewartt 


[116 


colonel  Grawfurd,  telling  him  that  he  heard 
Allan  Breek  Stewart  was  coine  to  thecoootry, 
ami  inlislingmen  for  the  French  king's  service, 
and  desired  the  deponent  to  inquire  if  it  was  ao : 
that  the  de|>onent  did  inquire,  and  wrote  the 
colonel  lor  answer,  that  he  beard  he  had  been 
in  the  country,  but  that  he  was  then  gone 
awav  :  that  this  was  in  the  month  of  April,  to 
tlie  best  of  the  deponent's  remembrance;  and  it 
seems  about, that  time,  Allan  Breck  Stewart  had 
gone  to  Rannoch,  which  gave  occasion  to  the 
dei)onent's  being  informed  that  he  was  gone 
away;  and  did  not  hear  of  his  having  re- 
turned to  the  country  till  after  Glenure't 
murder;  and  thinks  he  wrote  also  to  colond 
Crawfurd,  according  to  the  information  he  had 
got,  that  Allan  Breck  Stewart  was  in  use  of 
coming  every  Tear  to  tlie  country,  since  Ard- 
shiel went  to  France.  Depones,  that,  upon 
the  afternoon  of  Monday  the  11th  of  May  laat, 
the  de|H>nent  sent  to  the  pannel,  desiring  him 
to  come  to  him  to  Keills,  a  farm  belonging  to 
the  deponent,  at  about  a  mile's  distance  mm 
the  pannel's  house:  that  the  panael  accord- 
ingly came  there  to  him  that  afternoon,  m 
soon  as  he  expected  him  :  that  the  deponent's 
business  with  him  was  for  his  assistance  in 
setting  that  farm :  that  the  farm  was  accord- 
ingly set ;  and  the  pannel  himself  took  part  of 
it,  and  conveyed  the  deponent  a  part  of  his 
way  home ;  and  then  they  parted :  that,  be- 
fore parting,  he  desired  the  pannel  to  go  neit 
mornmg  to  Appin's  house:  that  the  pannel 
accordingly  did  so ;  and  the  deponent  had  a 
letter  from  him,  from  that  place.*  Causa 
sclent  ia  pa  let.  And  this  is  truth,  as  he  shall 
answer  to  God.        (Signed) 

V,  GuANT.  Donald  Campbell. 

*  **  It  may  be  proper  to  acquaint  the  reader, 
that  when  Mr.  Miller,  one  of  the  pannel's 
lawyers,  desired  that  the  deponing  witness  (Mr, 
Campbdi  of  Airds)  might  be  interrogated,  as 
to  the  pannel's  moral  character  in  the  country  ; 
and  particularly,  whether  or  nut  he  was  a  God- 
fearing man,  and  generally  employed  in  takiaff 
care  of  the  aflairs  of  widows  and  orphans  r 
the  lord  justice- general  was  pleased  to  oppose 
the  interrogatory,  saying  words  to  this  imrpose. 
Would  you  ])retend.  Sir,  to  prove  the  moral 
character  of  the  pannel,  after  being  guilty  of 
rebellion ;  a  crime  that  coniprehends  almost 
all  other  crimes  ?  Here  you  will  find  treasons, 
nuinlerH,  rapines,  oppressions,  perjuries,  &eo. 
To  which  the  !a%vyer  answere«l.  That  he  ab- 
hurrcfl  rebellion  as  much  as  any  person  what- 
e>cr;  but,  with  great  submission,  he  was  in- 
titled  to  plead  for  the  pannel,  that  it  was 
foreign  to  the  present  case,  since  the  king  hsd 
been  pL-ased  o  grant  an  indemnity,  in  which 
the  pannel  was  comprehended :  and  therefore 
could  legally  interrogate  the  witnesses,  as  to 

I  the  panuePs  moral  character.  This  waa  never 
refused,  added  he.  To  give 'an  instance. — ^Tbe 
famous  Collins  was  a  rebel  to  his  God  and 
Saviour,  as  his  writings  testify :  yet  his  most 
zealous  enemies  never  refused  bis  morel  cli«- 

I 


1 17]  ^^m-        for  Murder. 

C^mrkt  Sifrngri^  writer  iud  naUr  at  Btn- 
]S^  %i*vjv.^    married,  K worn t  purged 
Ituuniocij  I,  tlepooes,  That  Jarncs 

lli«  iJ4!..-.  lotu  n  letter  to  the  depo- 
W^lrn^  him  la  go  with  the  tenants  of 
I  of  Ardshiel,  to  InthaAtL'  to  G tenure 
m  sal  tn  &  bdi  of  »iiS{>t;nsion  :  that  accordiog^ly 
lli«  49pmmi  xvent  to  Aucharu  that  night ;  and 
lliaMzlaMif'-  '^tiaiils came  there;  and 

hm    ^bm    »•  ^    with    the   tenants   to 

GlaiiTii**  liiitu*£,  and  there  intimated  the  siist ; 
]  A  praicti  ^a^  alsa  taken  against  the  said 
K  U>a  thf$  was  on  the  HI  of  May. 
■y  that  the  panuel   told  the  tenanta  al 
i^m  botiite,  that  there  was  a  sist  come 
TviaOf  iog ;  ttiat  he  did  n<»t  desire  them 
vvitti  fh^-  -i-i     uDlesA  they  had  a  mind 
lf«i  ;  w  ohoae  lo  ^o ;  but  the 

cL    i       :  H  ifo  along.     Dispones, 
Im  t«CMf«d  a  fiecoud  letter  from  the  pan- 
I  «f  daltdie  Hth  of  May,  desiring'  hiin  to 
Bl  day  at  the  ejection  ;  hut  that  he 
iIm  laiiie,  because  lie  did  not  care  to 
Oliimre.    ,  Depones,  tliat    be   saw 
iitawari  at  Aucharn  the  Ist  of 
irbeci  the  deponent  left   Aucharn 
,  lUjr*  Ik  Icll  him  there  r  that  be  heard 
"lick  ^         V  Mic  thought  it  bard  that 
ilic«i:  the  tenants  upon  the 

of  Ani*uici »  w  Uen  be  did  not  remove 
^  Mamaiw*  Dcponi'S^  that^  in  the  he- 
Hi*  4»\nl  t'lfini^  met  41lan  Breck 
'cjionent^  that  he  heard 
;  nj  was  endeavouring  to 
%tkm  Inm  op  ac  a  d«atfter ;  hut  that  be,  Allan 
lli«cfc«  liAai  surrt ndar64  himself  in  1746  to  sir 
M^Kft  Jlfo^ira,  as  a  justice  of  peace.    De- 


iM*a  n. 


^  I- 


I9  \m  cxiretuely  ffood« — ^The  clerk  how* 
i  to  mark  any  thintp  said  by  the 
^  to  itie  (*oodi}es4  ot  the  pan- 
cter. — Tbfi  iloctrine  wiiich 
i;"»rt,  Rprinjfs  from  the 
H^;  which  regnnfi  a 
,  ,.w.iciplea  as  a  moiuiter  in 
mry  wmocet.  But,  thank  God!  the  exjjc- 
iSaBCtof  Late  viMiK  hiH  banished  it  from  hfe: 
Hririllilic    '  I,  without  a  mixture  of 

My  ami    iti  i  that  it  has  once  tnore 

miti  Ui  lirdd  in  so  iMdemn  a  place, 

iMooi^  iiit  »ii  ii€:cH»iott.     Sorely  his 

net  e»uU  iiavc  recoUet  ted  iofitauces,  per- 
mit fO  lite  ctit?t<*  of  hi«  own  act^uaintancej^,  if 
•HiiMitt^  bi'  N,  whert^  t^litical  prin* 

flflfli,  «f  a  •  0  furmeiU^  arc  no  bar 

lilreil  a«d  r  listhbuiion  ol 

«IM,H  wil  I,  that  moral 

iloitfliti   »*  1  ^.Miit.i  —  [lemnrkable 

*••  Um  rvlJ:  :Ue  poor  pannet  himself 

i^iysHnaiig^  ,,..  .,  uj;  whoaaid  tohm  igetit, 
^^  It  b  ftll  Oivr  miw  ;  my  lawyers  n«red  give 
'IhraHilitci  aa  furthfr  truublo  about  uie :  my 
'ikMH  if  a*  ceftmm  at  li*  it  were  pronrnmred. 
^lahtmjs  dnniM  ihia  plaiM',  and  the  iullueuce 
*ll«l  pfvvaiia  m  ii »  but  thia  ouuloat  all.  God 
"  v^kiflw'"  Soppleiiient^^c, 
•  Ntfia  til  f*  93  •  of  ihi»  Voiume. 


A,D.  n5«.  [118 

ponet,  thai  in  the  be^naing  of  April,  the  de* 
ponenl  saw  AUao  Breck  Siewart  at  Callart: 
that  be  did  not  apnear  to  be  tkulking:  that] 
%vbcn  be  aaw  him  tirst,  he  was  dressed  in  t^ 
French  babit:  that  on  the  UX  day  of  Mayi^J 
when  he  saw  him  at  Aucbnni,  be  wah  in  A  I 
short  black   higiiUnd  cont  wUh   white  butt ouf 
rtnd    tri»wsers»   and   said    be  bad  come  frot«  1 
lUnooch.     Causa  $ci€ntta patet.     And  thiaiij 
truth  as  he  shall  answer  to  God, 
(Signed) 
Argyll,  Cuahlcb  Stewart. 

Duncan  AlnccoU  in  Ardshiel,  aged  SO  yMiV  | 
and  upwards,  married,  being  sworn,   purged  1 
and  examined   ut  supra,    by   Mr,    Alexonder  ^ 
Catnpbell,  minister  at  Inverary,  sworn   inter-  \ 
preter,  deponi';;,  That  on  his  und  others  bt-in^ 
waroeil  to  remove  from  the  lands  of  Ardsbiel, 
as  at  Whitsunday  last,  he,  for  his  part,  bad  n^'  ^ 
intention  other  th»u  to  submit  to  the  warning^  ' 
till   a  paper  was   procured   from  £dinburghy  I 
which  he  heard  read  by  Charles  Stewart,  notar  1 
at  Aucharn,  as  on  a  &Ay  be  was  there,  bein^  ^ 
along  wiili  hia  neighboui-s  adrprtited  to  meet  ^ 
there:   that,  when  the  notice   was  given  tor! 
this  meeting,  he  was  not  at  bis  own  houses 
but,  on  his  return,  bis  wife  told  him  such  t 
message  was  tent,  and  that  advice  was  eom«  1 
from    Edinburgh    to  direct  those  who   wer«  { 
warned  to  remove,  to  continue  in  their  uostaesv  • 
sion:  that  on  his  coming  to  Aucbarn,  he  doe« 
not  remember  whether  the  ptiper  wa^  read  iq 
bis  presence,  but  is  positive  he  and  bis  neigh- 
boirr»  were  told  by  Cbailes  Stewart,  notar,  and 
the  pannel,  that  the  paper  contained  advice,  ai 
above,  on  which  they  shouhl  go  lo  ask  the 
liinds  from  Gtetiure  ;  arid  to  be  cautious  iu  their  < 
conduct,  as  ihey   were  to  swear  about  their 
hemg   faithful   and    peaoeaMe    tenants.     De*  * 
j»ones,  ibnt  he  gave  no  allowance  or  mamtate  J 
to  tiie  pannet  to  make  any  appUcation  at  £dm- 
burgh  against  the   removing;  that,  befoi^e  be 
liestrd  Hay  ihing  of  this  pafier  from  Edhiburgh| 
he  had  cn^u;;ed  to  serve  as  bouman*  lo  tite 

''^  ^^  A  txMirii.in  is  a  kiiid  of  tenant  or  servant 
(not  a  herd)  in  the  Highlands  ot  Scotland,  that 
\s  pIscH  i»fK>n  a  grass  room  or  farm,  with  a 
stocking  of  c«ttle,  he,  from  the  mai^ter;  nod 
1%  accountalde  to  him  for  ttte  value  of  the  ^nd 
stocking,  and  the  pruduc*^  of  it,  at  the  yearly 
rate  of  such  a  number  of  calveit,  kids,  latnh:^^ 
stones  of  cheese,  butter,  ^c.  He  i^  always  a, 
man  of  substance,  and  able  to  maintnin  hit<  fii> 
imily  well  J  th»l  is  ihnt  *'mphiyetL"  Supple* 
iiienl  to  the  Trial  ol  Jam^s  Stewart.  ,*  j 

The  kindness  of  Mr.  Walter  Scott  has  far> 
fiished  me  v^ith  the  following  noore  fuM  and  ex- 
act account  of  the  boumnn  or  bowman  : 

"  The  [Kvverty  of  the  yeominry  and  peasaoti 
of  Scotland  introduced  a  imide  of  ciillivaiiitf 
the  luod,  now  fortunutely  only  known  mi  our 
law  books;  wIil-u  the  bndloid  foiDishtxl  tbt 
tenant  with  the  iiapltments  ol  husbandry,  Ibf 
cattle  for  labour,  the  eeed  coro,  and  itiUer  alook 


119]  25  GEORGE  U. 

tenants  Glenure  was  to  introduce;  but  tliat,  on 
hearinir  of  the  paper  from  Edinburyfb,  he  pre- 
terret!  keeping  bj  bis  nei^bboura,  as  he  con- 
sidered the  beings  continued  in  possession,  did 
the  law  support  him  in  it,  more  henettcial  to 
him.  Depones,  that  the  procurini;^  the  paper 
at  Edinburgh  cost  him  no  money.  Cauta 
icientia  patet.  And  this  is- truth,  as  he  shall 
answer  to  God.  And,  being  interro^te  for 
the  panopl,  depones,  that' it  was  in  company 
vith  the  rest  of  his  neighbours,  he  went  to 
Aucharn,  and  went  along  with  them  likewise 
in  company  from  Aucharn  to  Glenure,  along 
with  the  notar;  and  that  he  remembers,  be- 
fore they  lefl  Aucharn,  thepannel,  in  general, 

necessarjr  to  curry  on  the  farm,  the  tenant  only 
contributing  his  labour ;  the  prottuce  or  return 
being  dirided  between  them.  This  species  of 
location  was  called  by  the  name  of  stcil-hawt 
for  which  ▼arious  etymologies  have  been  as- 
signed. Something  of  this  kind  subsisted  to  a 
late  date  in  the  Highlands,  where  a  cottager 
unable  to  purchase  a  cow  or  horse  to  stock  his 
croft,  was  furnished  with  one  by  the  landlord 
on  condition  of  sharing  in  profit.  These  were 
called  by  the  old  word  bowmen  ;  and  such  a 
person  seems  to  hare  been  the  bowman  of  Kil- 
fisnacoan  in  the  trial  of  James  Stewart."  [See 
the  deposition  of  Alexander  Stewart  the  pack- 
man, in/ra.] 

With  Mr.  Scott  agrees  Dr.  Adam  Smith, 
who,  speaking  of  the  metayers  of  France,  de- 
scribes them  as  Mr.  Scott  describes  the  bow- 
men, and  says,  **  that  at  the  time  in  which  he 
wrote,  a  like  sort  of  tenants  still  subsisted  in 
some  districts  of  Scotland,  where  they  were 
called  steel-bow  tenants."  See  Wealth  of  Na- 
tions, Tol.  8,  "book  2,  c.  3,  pp.  90,  et  seq. 

In  Jamieson  I  find  not  either  of  the  words 
boiiman,  bowman,  or  steil-bow,  but  be  inserts 
Steelbow  goods,  which  he  defines  thus:  *<  Those 
goods  on  a  farm  which  may  not  be  carried  off 
by  a  removing  tenant  as  being  the  property  of 
the  landlord." 

And  the  first  authority  which  he  cites  is  the 
following :  **  Till  towards  thu  be;;inuing  of  this 
century,  landlords,  the  belter  to  enable  their 
tenants  to  cultivate  and  sow  their  farms,  fre- 
quently deUvered  to  them  at  their  entry  corns, 
straw,  cattle,  or  instruments  of  tillase,  which 
got  the  name  of  steelbow  goods,  under  condi- 
tion that  the  like  in  quantity  and  quality  should 
be  redelivered  by  the  tenants  at  the  expiration 
of  the  lease."  Erskine-s  lustit.  book  2,  t.  6, 
§  12. 

But  Mr.  Waller  Scott  farther  informs  me, 
that  in  the  Highlands  a  common  herd,  who 
takes  care  for  numerous  owners  of  their  beasts 
feeding  on  extensive  unenclosed  pastures,  is 
denommated  the  bouman ;  and  qu.  if  that  be 
not  in  this  place  the  meaning  of  tlic  word.  See 
the  phrMe  'tenre  as  boanwn  to  the  tcnantt.* 
repeated  in  the  foliowiog  dcpoolMW  of  Mtc- 


Trial  of  James  Stemart^ 


[120 


told  them,  they  might  follow  the  advice  gifen 
them,  or  not,  as  they  should  see  cause ;  and 
that,  upon  their  arrival  at  Glenure,  all  that  be 
remembers  was,  th'at  they  took  protests  with 
money  in  the  notar's  hands,  against  Oleoare. 
And  this  is  also  tnith,  as  he  shall  answer  to 


God. 
Ja.  Fbrouson. 


(Signed) 

Alex.  Campbell. 


John  Maccombick  in  Ardshiel,  aged  43  yean, 
married,  sworn,  purged  and  examined  ut  fuprm^ 
by  the  above  Mr.  Alexander  Campbell,  swoni 
interpreter,  depones.  That  he  was  warned  wiA 
the  rest  of  the  tenants  to  remove,  at  at  last 
Whitsunday,  and  meant  to  submit  to  h,  and 
therefore  agreed  with  the  tenants  to  be  intro- 
duced to  serve  them  as  bouman  ;  bat  on  his 
being  called  to  Aucharn,  by  a  messaffe  in 
Charles  Stewart  the  notary's  name,  and  bear- 
ing the  advice  from  Edinburgh  explained 
there,  and  that  there  were  some  hopes  the 
government  would  allow  them  to  sit  still,  if 
they  continued  peaceable,  he  chused  to  keep 
by  this  chance  with  his  neighbours;  apoB 
which  he  went  along  with  them  to  Glenure, 
and  asked  to  be  continued  ;  and  got  for  answer, 
that  the  application  was  too  late,  the  lands  be- 
ing set  to  others ;  upon  which  he  joined  with 
his  neighbours  in  takmg  a  protest  in  the  handi 
of  the  notary.  Depones,  that,  as  to  the  agree- 
ment betwixt  him  and  the  incoming  tenanti, 
when  he  undertook  to  lie  their  bouman,  he 
heard  both  Glenure  and  these  tenants  say,  that 
it  was  by  Glenure's  advice  that  this  was  done. 
Depones,  that,  as  Duncan  MaccoU  and  he 
agmd  at  the  same  time  to  be  bouman  lo  the 
incoming  lenante,  so  he  heard  Glenore  my, 
that  it  was  his  advice  to  the  person  who  was  to 
employ  Duncan  MaccoU,  to  take  him  as  hie 
bouman.  Depones,  that,  on  his  being  wanh* 
ed,  he  advised  with  the  paonel  how  to  behave ; 
that  he  did  not  pretend  to  direct :  that  an  ad- 
vice in  law  should  be  asked :  that  he  hoped 
the  king,  and  those  employed  by  him,  woohl 
continue  the  former  possessors,  they  behaving 
dutifully ;  and  that,  on  his  being  advised  by 
the  pannel  to  have  patience,  he  resolved  to 
wait  the  issue :  that  likewise  the  pannel  ad- 
vised him,  if  better  could  not  be  made  of  it,  lo 
endeavour  to  gel  a  sub- set  from  the  incominf 
tenant;  and  tliat  thepannel  advised  him,  and 
others  concerned,  to  qualify  to  the  government. 
Depones,  that  he  told  the  pannel,  that  if  the 
law  countenanced  the  continuing  them  in  their 
possession,  he  would  rather  chuse  it.  Depones, 
that,  on  the  day  he  and  his  neighbours  went  to 
Glenure,  the  pannel  left  them  to  the  freedom 
of  their  own  choice,  whether  to  follow  the 
purpose  of  the  advice  from  Edinburgh,  or  not ; 
only  it  was  his  opinion,  that  they  had  a  chance 
of  being  continued  in  their  possessions,  they 
behaving  themselves  in  all  respects  dutifully, 
and  go  and  ask  the  lantlsof  Gleuure.  Defioncs, 
that  he  does  not  remember  that  the  advie« 
from  Edinhurvh  cost  him  any  money,  or  that 
any  was  asked  of  him ;  bat  that  some  aocounttf 
wen  at  that  tint  bctwix  bin  and  the  puBd. 


J6f  Murder^ 
ODM,  Ih&t  be  tonttniied  wtlh  the  rest  of 


tenaols  about  the  jiannel,  till  ihey  were 
by  bim  to  lea^e  him^  as  be  could 
of  bimselK,  aad  ii  as  to  gt»  home : 
he  does  Dot  remember  to  hare  lieani 
i*i  name  meutioned  alt  the  vvbile  ;  am  J 
tliis  happened  on  occasian  of  Gleuure 
mnd  tk9  pani]er*(  meeting  at  Riotalline  :  lliat 
lie  if  ant  posiiif  e  as  to  the  time,  but  ihinka  it 
wif  Ibe  last  night  of  the  old  5  ear.  Depones^ 
tlNl  be  heard  Glen  11  re  went  next  day  to  the 
|iaoei*a  lioiu»e,aod  ilined  there.  Causn  sci- 
nti^poiti.  And  Ibis  isi  truth  as  be  shall  an- 
•wer  Co  God.  (Signed) 

B.GviATrt,  AtEx.  Campbell, 

JoIa  Maccorquodale^    late   in    Letter  mo  re, 

BO*  in  BaHachedsbf  a^efl  20   and   upwanisi 

mimed,  sworn,  |>iirged  and  examined  ni  »upru, 

ly  the  siaid  Mr.   Alexaader  Cam|ibd),  s^'orn 

iul«rpreter,  depones.  Thai  the  Last  night  of  De- 

ceiaber  b^t,  he  was  |iiftient  ni  Kintalliiie,  a^ 

GUaure  and  the  panuel,  wiih  some  01  her  com* 

Dtnv,  met ;  when,  Hfter  drinking  a  while,  from 

load  fiords  it  was  apprc^li ended  a  r|uurreL  11  ould 

«nme ;   to  prerenl  which,  the  depoDifot  with 

Mme  oiber«,  carried  out  the  |iant)el,  who  seem* 

cdiiowilhug  to  part  wiih  Glenure,  n»  he  ex- 

pecM   Glenure  Houhl  go   that  niglit  to    his 

Imtff:    that  the  deponent  beard  ihai  Gleaiire, 

iWigli  he  dechned  in  ^o  with  the  {launellhat 

mgM,  vet   he  proposed  to  breakfast  with  hini 

%txi  morning  :    I  hat  tlie  depotit* nl  was  in  com- 

pAoy  with  the   panivel,  and    loltowed   him  at 

iime  diitance  from  the  bougie  of  Kintalline ; 

•0(1  that  slW  the  white  he  w^  in  the  panDefs 

cuiapaay,  he  bi^ard  nothing  of  Glenure;  only 

Ibe  |)tQnel  was  ihsohJiged  at  being  separated 

(t<m  bim,   and  said,  tjiat  if  they  about   him 

hid  Iff  pi  off,  Glenure  and   be  would  be  good 

Tricridi    Uffure   they    would    [*art*       Depones, 

dm,  when   he  was  warned,  and  conse^^uentiy 

lib  to  want  lands,  he  was  talking  of  bis  situa- 

ti<uito  the  pannel,  being  poor,  and,  in  his  own 

tppfeheoMOii,  unable  tu  hear  the  expence  of  a 

ItWfuit,  did  not  propose  to  follow  the  matter 

iQ  Ibtl  way  :    that  being  asked  a  sight  of  the 

wimingt  he  gave  it  to  ihe  pannel,  but  did  not 

imn  any  advice  in  law  should  be  asked  ntiout 

•li  hivintf  some  dependence  on  his  innocence, 

wd  t»'4  l»€Jog  concerned  in  any  of  the  ti'i>ubles 

•■tbal  country.     And  being  iiilerro^fate  tor  the 

fittutl,  wli  ether  the  pannel  had  ail  vised  him, 

^kdepooeoi,  to  eiii^aife  as  bouman  in  Leiler- 

^^^tol,  if  lie  Iter  could  not  be  provided  for  him, 

^^niei  negative.     Cuusa  scientta:  patet.     And 

vk  truth  as  be  shall  answer  to  Gud. 

(Signed) 

r.GjuLjsr.  Alex.  Campbell. 

Evun  Mucin  tyre  tn  Ducbelly,  late  herd  in 
Olenduror,  aged  QO  years  and  upwards,  itn- 
AvntKlt  awnrn,  purged  and  examined  ut  ii/pro, 
•y  Wr.  Archiliald  Campbell  of  Stonetield, 
99t)m  interpreter,  deponeK^  That  he  engaged  to 
fct  herd  10  Mr,  Campbell  of  Balheveolan,  in 
Ike  faroi  of  Gleuduror,  for  the  year  1751 ;  and 
Hut  tbe  day  after  be  entered  into  bii  service 


A.  D.  1152. 


there,  the  paotiel  challenged  bim  for  accepting 
thereof,  ami  told  htm»  that  he  would  be  fit- 
aides*  with  him,  sooner  or  later,  for  douig  it ; 
and  that  if  he  did  not  meet  with  resentment 
himself  in  his  life-time^  others^  such  aa  his 
friends^  niight  meet  with  it  after  his  death. 
Depones,  he  nefer  was  in  the  pannel 'S  service. 
CaUBo  scieniitt  patet.  And  this  is  truth,  as  fa« 
shall  answer  to  God;  and  depones  he  eaonot 
write.  (Signed) 

AftOfXL.  Aacu.  Campoell, 

Alexander  Camphtll  in  Tynaluih,  aged  fifty 
years,  married,  sworn,  purged  aod  examined 
ut  snprdf  depones,  That,  iu  the  end  of  April 
last,  the  pannel  called  at  the  deponent^s  bouse 
in  the  luorniug,  to  have  bis  horse  corned  ;  and 
baring  called  for,  and  got  a  dram,  which  wa* 
afterwards  set  down  upon  the  table,  one  Mac- 
laren,  a  merchant  in  Stirling,  who  l»ad  lodged 
with  the  deponent  the  night  before,  l»eiog  pre- 
sent, asked  the  pannel,  if  he  would  not  help 
the  deponent  to  a  dram?  And  the  pannel  au- 
swered,  be  did  not  know  any  thing  thai  be 
would  help  the  deponent  or  any  of  his  nameto, 
if  it  wa^  not  tu  the  gibbet.  The  deponent  an« 
awpred,  that  that  was  not  a  comfbrtabit  expres- 
fiion  to  liim.  that  it  seems  if  any  of  them  were 
al  I  he  gibbet,  the  pannel  would  draw  dm«it 
their  feet ;  und  the  pannel  replied,  that  of  some 
of  thf-m  he  wonhl,  and  some  of  them  he  would 
nut ;  tbat  then  (he  deponent  said,  that  Glenure, 
as  he  supposed,  waK  the  man  of  the  nnme  with 
whom  the  pannel  had  the  greatest  quarrel,  and 
the  deponent  did  not  knov%  any  good  cau^e  the 
pannel  bad  tof  it:  upon  which  the  pan  net  an- 
swered, That  if  Glenure  tiad  used  the  d^po^ 
nent  as  ill  as  he  had  used  him,  ibe  ^auoel,  by 
turniniiT  li\m  out  of  his  nossessiou,  he  would 
bare  no  lens  quarrel  with  him  than  he  bad : 
and  the  deponent  replieil,  That  that  was  00 
just  cause  of  quarrel ;  for  that  li  (he  pauuel  bad 
a  tack  of  bis  farm,  Glenure  could  not  turn  bim 
out ;  aud  the  deputient*s  wife  was  also  present 
at  this  conversation.  And  being  mterrogate 
for  the  pannel,  whether  the  de|iouent  then 
thought  him  serious,  and  in  earnest,  or  that  it 
\»  as  only  a  Joke  ?  depones,  thai,  at  that  tinier 
he  thought  it  proceeded  from  malice.  And 
being  further  interrogate  for  the  pannel,  de- 
poneij,  he  was  at  that  time  ]>erfeclly  sober. 
Depones,  that  all  they  drank  was  a  gill  of 
aquavira;,  of  which  the  deponent  got  a  p4irl. 
Causa  icientiic  palet.  And  this  h  trulh,  as  be 
shall  answer  to  God.  (Signed) 

P,  Grant.  Allx.  Campbell* 

Ewan  Murray^  vintner,  at  wei^t  end  of  Loch* 
earn,  aged  thirty-four  years,  married,  sworn, 
purgpil  and  examined  ut  supra^  depones,  That, 
in  April  la«it,  the  pannel  and  Colin  Maclaren, 
merchant  in  Stirling,  came  to  the  deponent*» 
Imtise,  and  the  [lannel  tidd  ttie  deponent,  that 
Glenure  had  warneil  away  several  families  ia 

*  I  believe  the  otdiuary  expression  11  to  be 
upiidet  wUh.  Both  seem  to  correspond  wttb 
the  Engtisb  rulgar  phrase  of  6ctii^  evtn  with^ 


189]  25  GEORGE  11. 

Ardflliiers  estate  to  remo? e ;  and  that  be  was 
inruriuedy  that  none  of  Uie  factors  on  the  for^ 
feited  estates  had  power  to  remove  the  teoants ; 
and  that  he  was  going  to  Edinburgh  to  take 
adfice  of  lawyers  about  it;  and,  if  he  had  not 
that  power,  that  the  paond  would  apply  for 
suspension  in  his  own  name,  and  in  name  of  the 
rest  of  the  tenants;  and,  the  oonfersation 
turning  upon  an  officer  of  the  army,  that  was 
branded  with  cowardice,  and  had  been  broke  on 
that  account,  the  pannel  said,  that  he  had  rea- 
son to  say  that  Glenure  was  as  great  a  coward 
as  that  officer;  for  that  be,  the  pannel,  had 
challenged  him  to  fight  him,  which  Glenure 
declined;  and  desired  the  deponent  to  tell 
Glenure,  that  he  had  told  him  so ;  but  the  de- 
ponent answered,  That  he  would  not  carry  any 
aucli  message  from  one  gentleman  to  another  ; 
and,  from  theoonrersation,  the  deponent  under- 
stood, that  the  arms  with  wbicii  the  pannel 
had  challenged  Glenure  to  fight,  was  with 
pistols.  And  being  interrogate  Tor  tbe  pannel, 
depones,  that  he  thought  the  pannel  was  a 
little  concerned  with  drink.  Cauta  tcientia 
p€tet.  And  this  is  truth,  as  he  shall  answer  to 
God.  (Signed) 

P.  Grant.  Ewan  Murray. 

GoHn  Maclaren^  merchant  in  Stirling,  aged 
twenty-two  years,  unmarried,  sworn,  purged 
and  examined  ut  iupra^  depones.  That,  in  the 
month  of  April  last,  the  deponent  happened  to 
lodge  in  the  house  of  Alexander  Campbell  in 
Tynaluib  a  niffht,  and  in  the  morning  about 
nine  o'clock  the  pannel  alighted  there;  and 
hating  breakfasted  and  got  a  dram,  the  depo- 
nent understanding  that  the  pannel  was  going 
the  sanoe  road  wiUi  him  towards  Stirling,  de- 
aired  the  pajinel  to  gire  the  landlord  a  draoo, 
that  they  might  go  ou  their  journey ;  that  the 
pannel  answered.  That  he  did  not  think  he 
■boold  help  the  landlord,  or  any  of  his  name, 
to  a  dram,  or  any  thing  else,  if  it  was  not  to 
the  gibbet :  that  be  had  mentioned  to  the  land- 
lord, that  Glenure  had  warned  him  to  remove 
from  bis  possession  in  Ardshiel ;  therefore  the 
landkMd  answered,  that  it  seemed,  if  they  were 
on  the  pbbet,  the  pannel  would  draw  down 
their  ftitt ;  and  he  supposed  it  was  on  Glenure's 
account;  to  which  the  pannel  answereil,  he 
ceuM  not  sav  but  it  was ;  upon  which  the  pan- 
nel and  landlord  entered  into  an  altercation  to- 
gether touching  the  justice  of  that  remo? ine  ; 
and,  as  tbe  deponent  had  no  concern  in  the 
matter,  be  took  little  notice  to  what  passed. 
Depones,  that,  upon  the  landlord's  using  the 
above  expression,  that,  if  they    were  on  the 

S'bbet,  the  pannel  would  draw  down  their  feet, 
e  nannel's  answer  was  in  these  words.  That 
he  did  not  chose  to  be  an  executioner,,  but  he 
could  draw  down  some  of  them.  Depones, 
that  from  Tynalnib  the  pamiel  and  deponent 
proceeded  on  their  journey ,  and  about  eleven 
o'elook,  or  osid-day,  came  to  tbe  iMNise  of 
Etrao  Mumy,  the  pracediiig  witnesa:  that 
tlMre  tbe  panDel  again  oompUmed  of  Glannre'e 
raneffaisrhini  tdd  Uaa,  il  wm; Mt  Cwp- 


Trial  qfJamet  Stevoartf 


[IS* 


bell  tliat  was  to  succeed  in  his  room*:  that  be 
did  not  know .  any  reason  lor  G tenure's  using 
him  so,  for  that  they  were  cousins :  and,  upoq 
the  deponent's  saying,  that  possibly  it  wasJKMie 
of  Glenure's  fault,  and  that  he  cuukl  not  bdf 
it,  tlie  pannel  said,  he  did  not  know  any  busi- 
ness that  either  the  exchequer  or  the  TactM 
had  to  turn  out  tenants,  while  they  paiik  tbttir 
rent ;  and  said,  that  he  waa  going  to  Efdinborgb 
to  get  a  suspension  of  the  decreet  of  remof  ins^ 
Depones,  that,  having  left  Ewan  Murrajri 
bouse  together,  and  tbe  said  Ev^an  in  coanpany 
with  them,  the  conversatiou  turned  upon  af 
officer  in  tbe  army,  who  had  been  broke  ftr 
cowardice  ;  and  the  de|>onent  said,  be  was  sur- 
prised with  it ;  for  that  that  officer,  as  the  de* 
ponent  besrd,  had  not  declined  to  accept  of  a 
challenge  to  fight  from  Glenure ;  that  tbtre- 
upon  the  pannel  said,  that  be  esteemed  Ibit 
officer  a  better  man  than  Glenure :  and  Ewaa 
Murray  having  contradicted  bis  being  so  good 
a  man  as  Glenure,  the  pannel  said,  thai  he 
knew  the  contrary ;  for  that  he  himself  had 

S'ven  Glenure  s  challenge  to  fight  him,  which 
lenure  declined  ;  and  ilesireil  Ewan  Mumy 
to  tell  Glenure,  that  he  would  fi<sbt  him  whcfl 
he  wouM ;  but  Ewan  Murray  declined  le 
carry  such  a  messsge.  Depones,  that,  afWr 
parting  with  Ewan  Murray,  in  tbecooraeef 
their  journey  the  deponent  found  that  the  re- 
moving was  much  at  the  pannel 's  heart ;  and 
the  deponent  endeavoured  all  he  could  to  divert 
the  conversation  to  another  subject:  that  the 
pannel  told  him,  that,  if  he  failed  in  his  aw- 

Emsion  at  Edinburgh,  he  would  carry  it  to  the 
ritish  parTiament;  and,  if  he  foiled  there;^ 
told  him,  after  a  IttUe  pause,  and  with  an  eoH 
phasis,  that  he  behoved  to  take  the  only  other 
remedy  that  remained.  And  being  interrogate 
for  tbe  pannel,  depones,  that,  dunng  the  con- 
versation in  CampbeH's  house,  above  deponed 
upon,  the  deponent  at  first  thought  that  tbe 
pannel  had  been  in  joke ;  but  afterwards  it  was 
like  to  become  very  serious ;  for  the  landlord 
and  he  came  to  pretty  high  words  together: 
and  being  further  interrogate  for  the  pannel, 
depones,  that  he  did  not  think  the  pannd 
dniok,  either  in  Campbeirs  house,  or  in  Ewan 
Murray's  house  ;  but,  after  leaving  Murray's 
house,  they  drank  two  or  three  drams  at  a 
dram- house;  and  after  that  the  deponent 
thought  him  much  concerned  with  liquor;  and 
it  was  after  taking  these  drams  that  the  conversa- 
tion between  Murray  and  the  pannel,  with  re- 
spect to  challenging  Glenure,  happened.  And 
depones,  that  they  had  rode  several  miles  to^pe- 
ther,  befbre  the  conversation  about  ihe  British 
parliament ;  and  the  deponent  thouc^ht  liiiii  even 
tlien  still  concerned  with  drink.  Cauta  scieit- 
tia  patet.  And  ibis  is  truth,  as  lie  shall  an- 
swer to  GihI.  (Signed) 

P.  GsANT.  Colin  >1aclak£n. 

John  More  MaecoU^  late  servant  to  the  paar. 
nd,  aipsd  thirty-seven,  married,  witness  citedp 
sokmoly  sworn,  purged  and  examined  byUin 
•bof  e-oanidi  tlepoBci,  Tha^ 


fd/r  Murder* 

presefit  at  a  oonversation  that  liajipened 

tUe  paniiel,  Jobo  Beg  and  Dui^td  Mac- 

serrants  to  the  pntinel,  in  lli€  pau- 

wiioiiae  ftt  Aucham^  ij«fm-e  dfty-lig:hl 

tQoriiitig'4  abotit  Yule  last^  as  the  deiH>- 

l  remefiil>er«:  that  llie  deponent  was 

i^  employed  tti  rlifitilling'  the  second  draught 

'  ^  brcwmi*'  of   a4)UafitGc;    and  the  pantiel 

deponeot  to  ^^Itq  lilm  and  the  peo- 

a  dram,  ivhich  the  tte)iotieDt  dtd  : 

pauiit'l  said,  Glenure  wmild  not  tnke 

from  the  tenants  of*  Aucharn,  part  of 

isliiel  estate,  because  they  had  flfi?eii  the 

•orne  bear,  which  Glenure  alledi^ed  they 

to  imve  paid  him  '  that  the  paniiel  com- 

it  was  hard  to  refute  the  rent  in  money 

the  tenants  in  a  scaree  year ;  and  oh- 

•erTfil,  that  it  would  be  of  no  great  cotiseqaenfe 

to  faim^  the  panne],  though  be  should  pay  hack 

tbe  bear,  in  comparison  to  what  it  would  be  !*» 

(helenanta  for  »suhse<pient  years,  in  ca*ie  ihey 

Wfr«  nb)i}^^  to  pay  their  larm  bear  ami  meat ; 

Ia4  said,  the  tenants  or  comnioners  were  hkely 

Ivkferv  Mi  off;  for  if  Glenure  went  on  m  the 

Hjbctneu  did,  rt  was  likely  he  woufd  be  laird 

of  Appin  in  a  very  short  tirae ;  and  that  he 

knew  once  a  set  of  commoners  in  Appin,  who 

taotd  not  attow  Glenure  to  go  on  at  tucb  a 

rate:  to  which  the  deponent  and  the  rest  an- 

iwered,  that  they  knew  no  comtu^iti'TS  in  the 

OflfQDtry  that  could  strive  or  contend  wilh  Gle^ 

Mre  in  tbat  manner.     Depones,  that  he  had 

w coh versa tion  wiib  the  said  John  or  Duffald 

Miccolh  that  day,  nor  any  time  therearier, 

tboot  the  inn  port  of  the  above  commoninif. 

l>f|Mmcs,  that  in   seeil-time  last,   when  tbty 

went  harrowing' the  tath- field  in  A uch am,  beings 

tW  Tery  d^y   that  James  J^ewart  went  for 

£4iabaiYh,  Allan  Breck  Stewart  cikttie  to  the 

depftaept,  andtlie  latd  Dug^ald  Maccoll,  a^  they 

iHfe  yoking^  the  horses;  and  the   deponent, 

biriog  asked  him  some  questions  about  France, 

ttid,  he  did  not  tee  any  of  the  people  that  went 

flTcr  I  here,  come  back  in  so  trofid  a  way  as  they 

went  Of  er:  to  which  Allan  Breck  replied^  that 

dny  came  back  belter  thau  iliey  went ;  and 

tliU  tbey,  meaning^  the  people  of  Appin,  iiMifht 

Worich  belter,  if  they  wer^  \vnrtb  themselves: 

Ipiaihe  defionent^s  answering',  that  he  did  not 

•«  bow  that  coo  Id   happen,  Allan  Breck  an- 

"•tfwl,  if  they,  the  commoners,  were  worth 

^wiaekes,  lliey  could  keep  out  Glenure,  and 

^Iftlpf  htrr^   Prom  oppressinjj  llicm  ;  iiW  which 

^^^^^,  Itl  not  be  bauish[*il  from   their 

^^^p'  'Hm«;  and,  upon  the  deponent's 

^^»»inuj^,  lie  did  not  «ipe  how  any  l>o*ly  could 

i    prrtfud  Kt  strive  or  srtrij;fule  with   Glenure  in 

Lj|lt^v  %,.  had  the  tuwa  uf  ihr^  Iwint;  »nd 

HBn'-  li,  and  nobody  to  supp^^^t  or  lake 

■^fe  Wy  ii!c  nftnd,  after  their  so  doinj^  ;  Allan 

ftiH,  he  had  it  in  his  power  to  save  or  protect 

wijp  body  that  would  put  Gletiure  from  tramp- 

fioff  upon  the  country  in  the  manner  he  then 

wiT    And,  being  interrogate  for  the  pannel, 

•bitdre«tthe  ^aid  Allan  Brerk  used  to  wear, 

wImsi  be  taw  bim  at  Ancharn  ?  depones,  that 

hi!wi}F8  9BW  bitn  wear  a  blue  side  coat,  red 


A-D.  ITS?. 


[las 


waistcoat^  and  black  breeches,  with  ai  hat  and 
feather,  except  twice  that  he  saw  him  in  a 
black  short  coat,  wilh  white  metal  buttoof. 
The  first  lime  he  saw  him  wilh  the  aaid  sboit 
coat,  was,  when  the  pannel  was  at  EdinburgU  ; 
and  the  said  Allan  Breck  told,  he  was  43:uing  to 
Rannocli,  and  aciually  went  away,  and  atayed 
several  tlays ;  and  the  other  was  upon  Monday 
the  11th  day  of  May  last,  when  he  saw  the 
said  Allan  Breck  come  to  Aucharn  dreased  in  his 
long  clothes^  and  came  directly  where  the  pan- 
nel, Allan  his  son,  John  Beg  iVlaccoll,  and  the 
deponent,  1% ere  covering  potatoes:  that,  when 
Allan  C4ime  up,  they  were  reiting-  Ihemseltesj 
and  silttti|i^  by  one  another:  that  Allan  Breck 
sat  with  tlieiu;  and  all  the  conversation  that 
the  deponent  houcimI  wae,  some  questions  aU>iit 
the  welfare  of  the  people  of  Glencrearan  :  and 
thai  he  did  not  observe  the  pannel  have  any 
private  couversrttion  with  the  said  Allan  Breck  ; 
Ibr  that,  a  very  Uule  time  after  A lUo  Breek't 
arrival,  the  part opI  had  a  message  to  meet  Mr, 
Campbiftl  of  AirdK  at  Keel ;  and  that  thii 
liappiiDed  after  mid-duy  :  that  the  pannel  im. 
mediately,  upon  reiTeirim?  the  above  niei$sag<^y 
went  away  in  order  to  meet  Airds :  and  that  no- 
body went  aloni^  wilh  the  pannel,  Atlan  Breck 
hav'irij^ stayed  with  lliem :  ihal  a  little ttiereafler, 
the  dc'poneiit,  Allan  Stewart  ihe  panuersson,«]tl 
John  Be^  Maccoll,  went  to  cover  potatoes  at  s 
Ifreater  distance  from  the  pannel's  house  ;  that 
Allan  Breck  stayed  behind ;  and,  some  time 
thereafter,  Allan  Breck  came  where  they  were 
workio{T,  dressed  io  a  black  short  coat  wilh 
white  tnetal  buttons  and  black  breeches,  and 
wrought  with  them  in  covering'  potatoes.  De- 
ponesi,  that  the  deponent  came  very  early  upon 
Tuesday  morniui^  to  the  panners  sooi  and 
found  the  serf  ants  petting  up  :  that  the  depo- 
ueut  went  to  AuchaVii,  at  about  n  quarler  of  a 
mile*8  distance,  for  a  slaug-hter-spade ;  and,  ai 
be  waK  returning  from  theoce,  be  met  tlie  pan* 
nel  goins^  for  Appin'i?  house;  and  when  he 
came  to  the  paouel^s  honf«e,  he  saw  Allan  Breck 
silling  in  a  rooui^  dressetl  in  the  black  short 
coat,  combing'  his  hair.  liepones,  be  never 
saw  the  said  Allan  Breck  at  work  any  of  the 
times  he  saw  him  at  Aucharn,  e^fcept  covering 
I  lie  potatoes  upon  the  Monday  eveoing  %M 
aforesaid.  Cttuiti  uimtia  patet,  Aud  this  it 
Ihe  Imlli,  as  he  shall  answer  to  God. 
(Signed) 
Ja,  Ferouson,  ARcn*  Campbell 

Dugatd  Macc&ll,  servant  lo  the  pannel,  un* 
marrieiK  aged  24  years,  witnejts  oted,  swoiiif 
purged  and  examined  u^  mpro,  by  llie  fore- 
named  sHorn  interpreter,  defiones,  That  in  the 
Ititter  end  of  winler  Inst,  about  dny-break,  the 
deponent  was  alonjjsl  with  the  pannel,  in  hii 
brew- house  at  Auchurn^  in  company  with  John 
More  Mact'oll,  and  J<din  Bt'g  Maccoll,  bolk 
aerfanis  lo  the  pirn  nel :  ihut,  after  takinpf  » 
dram  of  whisky,  the  convf^n^aliou  tell  ijpoii 
ihe  tenants  itf  Aucharn »  a  part  of  the  fbrfeiled 
estate  of  Ardshiel ;  and  that  it  was  theti  meu- 
tioiieif,  that  tliey  were  in  use  to  f«y  #ofiie  be^r 


187] 


25  GEORGE  II. 


Triid  of  James. Steioartf 


[ISB 


mod  meal  ••  partof  their  rent :  that  the  tenants 
of  the  said  town  of  Aucharn  had  paid  the  bear 
to  tfaepannel  thev  were  in  use  to  pay,  and  made 
offer  of  money  for  that  and  the  rest  of  the  rent 
to  Glenure,  the  factor ;  and  that  Gteniire  re- 
fused to  take  the  money,  insisting*  to  have  the 
victual  paid  in  kind  as  formerly  :    upon  which 
thepannel  said,  that  Glenure  was  like  to  hurt 
liim,  the  said  James  Stewart,  as  much  as  was 
in  his  power ;  for,  as  the  tenants  had  paid  him 
the  bear  in  use  to  be  paid  out  of  that  farm,  and 
turned  it  to  his  own  use,  he  would  be  obligred 
to  answer  to  Glenure  for  that  article  of  the  rent ; 
but  added,  that  that  was  not  the  worst  of  it,  and 
that,  if  he,  Glenure,  went  on  in  the  same  way, 
it  was  likely  he  would  in  five  years  be  laird  of 
Appin ;    and,  upon  the  deponent  and  the  said 
John  More  and  John  Beg-  MaccolPs  saying, 
that)  that  was  likely    to    hapiien,    the    said 
James  Stewart,  the  pannel,   answered,    that 
that  was  the  fault  of  the  commouers  or  fol- 
lowers ;  for  however  he,  or  people  in  circum- 
stances like  biro,  would  shift  for  themselves, 
thev,  the  commoners  would  be  very  badly  off: 
andf  added,  that  he  knew  commoners  once  in 
Appin,  who  would  not  alk>w  Glenure  to  go  on 
at  such  a  rate ;  to  which  the  deponent  and  the 
others  present  answered,  that  they  believed  that 
there  might  be  commoners  once  in  Appin  who 
would  do  so.    Depones,  that  he  does  not  re- 
member that  he  and  John  Beff  Maccoll  had, 
at  any  time  that  day,  or  thercMier,  any  com- 
muning about  the  sense  or  meanings  of  this 
conversation  that  happened  in  the  brew-house. 
Depones,  That,  upon  the  last  night  of  December 
last,  Glenure  and  John  Campbell  of  Ballie- 
veolan  were  in  company  with  the  pannel,  John 
Stewart  younger  of  Ballachelish,  and  James 
IStewart  in  Ardnamurchan,  uncle  to  the  pannel, 
in   the    house   of  John    Breck  Maccombie, 
chan|;e-keeper  at  Kintallinc  ;  and,  after  night- 
fall, by  the  desire  of  his  mistress,  the  deponent 
went  there  to  attend  his  master  home:   that, 
after  he  came  there,  Glenure,  the  pannel,  and 
bis  company,  drank  till  it  was  late  at  night,  and 
the  deponent  heard  them  speaking  together ; 
but  as  It  was  in  English,  he  did  not  understand 
what  they  said :    that  at  last  they  began  to 
speak  very  k>ud,  and  got  up  upon  their  feet: 
that  the  deponent,  and  several  other  com- 
nouers,  who  happened  to  be  at  the  house  at 
the  time,  apprehending  they  were  going'  to 
jf|uarrel,  went  into  the  room  in  order  to  prevent 
it :  that  tbey  still  spoke  loud,  iiiul  in  Euglish  ; 
and  the  deponent,  with  the  assistance  of  John 
Maccombie,  alas  John  the  son  of  Duncan  and 
grandson  of  Malcolm,  and  another  John  Mac- 
combie, alias  the  son  of  Duncan  and  (grandson 
of  Duncan,  both  then  tenants  in  Ardshiel,  and 
John  Roy  Maccorquodale,  then  in  Ijcttermore, 
BOW  in  Ballachelisn,  carried  the  pannel,  and 
the  said  James  Stewart  his  uncle,  out  of  the 
room :   that  tbey  bsisted  for  being  hack  to  the 
company ;  hut  that  yonng  Ballachelish  came 
to  them,  and  told  them  that  they  must  not  go 
back,  and  that  they  ought  to  be  good  friends : 
lipon  whiob  the  pannel  taidi  be  would  not  itir 


frooi  the  place,  till  he  was  told  by  Glenure  if 
he  would  go  to  his  house  next  day ;  that  Bal- 
lachelish said  he  would  go  and  get  notice,  and 
accortlingly  went  into  the  room,  and  returned 
back  in  a  little  time,  and  told  tlie  pannel  that 
Glenure  promised  to  see  him  at  his  bouee  nest 
day :  that  the  pannel  asked  if  Glenure  had  pro* 
mised  so  upon  his  honour ;  and  upon  Ballacbe* 
lish    answering  he    did,    the   deponent    and 
the  said  John  Roy  Maccorquodale  carried  the 
pannel  over  a  burn  adjoining  to  the  aaid  home 
of  Kintalline  in  the  road  to  Aucbam ;    upoa 
which' the  pannel  told  them,  they  were  belter 
at  that  than  in  doing  what  they  ought  to  do,  and 
that  it  was  to  side  with  Glenure,  not  with  hia» 
that  tbey  were  there ;   and  asked  the  tenants 
then  present,  what  kept  them  there  so  late,  and 
why  they  did  not  go  home  in  proper  time  of 
night  P    And,  they  answering  that  they  were 
there  waiting  upon  him,  the  pannel  replied, 
that  it  was  not  waiting  upon  him  they  wers^ 
but  upon  Glenure,  to  see  what  they  could  gel 
by  him :  that  he  continued  at  such  conversa- 
tion as  this,  till  thev  came  to  the  fielda  of  Aa« 
chindarroch,  hard  b^  Aucbam,  when  the  aaid 
John  Maccombie,  alias  the  son  of  Duncan  Ma- 
cilchallnm,  said,  that  he  waa  told  that  Glenore 
had  a  drawn  hanger  in  the  room  where  they 
had  been  drinking,  afler  the  pannel  and  kiM 
uncle  were  carried  out,  declaring   that   be 
would  not  allow  them  to  return  to  hia  company 
any  more  that  night ;    upon  which  the  pannei 
aaked  them,  why  he  did  not  tell  him  that  be- 
fore he  came  away  from  the  house,  that  be 
might  see  if  it  was  true,  and  what  Glennra 
meant  by  it?  and  insisted  then  on  going  baek 
to  know  the  truth  of  it ;    but  the  deponent  and 
the  other  tenants  declaring  they  would  not  al- 
low him  to  go  back,  he  bid  tlieni  go  about  their 
business  and  leave  him,  which  they  accord- 
ingly did  ;   and  the  pannel,  and  the  said  James 
Stewart  his  uncle,  went  to  Aucharn,  attended 
only,  as  he  remembers,  by  the  deponent  and  a 
boy-herd  named  Duncan  Maccannanich  :  that, 
when  this  happened,  the  pannel  James  Stewart 
and    his  uncle  were  very  drunk.     De|K>nes, 
that,  some  time  in  March  last,  when  the  de- 
ponent and  John  More  Maccoll  were  harrowing 
the  tath -field    at  Aucharn,   being   the   aame 
day,  or   the   day  af\er  the   |Minnel  went   for 
Edinburgh,  Allan  Breck   Stewart  walked  for 
a  good   time  al>out   the  field ;    and  as   thejr 
were  loosing  their  horses,  the  said  Allan  Breck 
and  they  entered  into  conversation  about  FrauoOi 
and  |>eonle  from  this  country  there  ;  and  Joha 
More  Maccoll' asked  if  there  was  any  prospect 
of  any  of  them's  coming  back  ?    Upon  Allan 
Brack's  answering  he  was  afraid  they  would 
not,  John  More  said,  he  wisheil  that  none  bad 
ever  come  from 'that  country ;  in  which  the  said 
Allan  joined  him,  bayiug,  it  had  disperaed  the 
friends  he  most  regarded ;  and  that  it  was  a  parti*  ^ 
cular  misfortune  that  the  mana(;ement  of  anv  ' 
concerns  they  lef\  behind  them,  fell  into  the  handa 
of  one  that  was  about  to  ahew  them  no  manner 
of  favour ;  and  declared  that  he  meant  Glenure  s 
nnd  told  that  the  coinmonera  of  Appin  wevQ 


IS9J 


Jfcr  Murder. 


]iiile  vorthv  wbcn  Ihey  did  not  take  him  out  of 
the  way  befbra  now ;  and  upon  their  aaying 
aobodj  would  run  that  risque,  not  knoxviugwho 
vwld  Hand  by  tbein,  Allan  an8were<l,  that  be 
knew  a  way  to  convey  out  of  the  way  any 
{loaoD  tbat  would  do  so,  in  a  way  that  he 
would  Btfcr  be  catclied ;   and  also  said,  that 
they,  and  the  tribe  they  were  of,  (ineauiu«|f  the 
MaccsUft)  were  not  like  to  be  the  least  sutieivrs 
bjr  Gkuure'a  proceedings.    Depones,  that  the 
fini  tioM  he  saw  Allan    Hreck   Stewart  at 
Indian  was  about  the  licginning  of  the  oat- 
snriag,  which  was  preity  tar  advanced  in  the 
nealh  of  If  arch :  that  he  was  then  dressed  in  a 
udc  blue  eoat,  red  waistcoat,  and  black  breeches, 
with  m  hai  aod  feather :    that,  while  he  was  in 
the  esoBlry  of  Appin,  lie  was  for  ilie  most  part 
at  the  pan  net's  bouse ;  but  that  he  was  abUnt 
•sec  for  a  considerable  time,  when  he  said  he 
waa  ai  Ranooch :    tbat  the  deponent  saw  him 
whca  he  said  he  was  going  to  Rannoch  :  that 
ha  was  thea  dressed  in  a  black  short  coat  with 
silfer  boHoas  belonging  to  the  pannel,  blue 
tfwirsers  striped  with  white,  and  a  dun  great 
ceat,  which  the  deponent  thinks  belonged  to 
AUsa  Stewart  the  pannePs  son ;  and,  being  now 
shcwa  the  two  black  short  coats  in  the  clerk's 
haads,  depones,  tbat  the  coat  with  ilie  silrer 
bailsas  oo  the  pockets  belonge«l  to  the  pannel, 
sad  is  the  saoie  the  said  Allan  Breck  had  on 
wbcB  he  said  he  was  going  to  Uannoch  as 
aloresaid  ;  aud  ibe  other  coat,  wiih  no  buttons 
BpQO  the  pocket,  belonged  to  Allan  Stewart,  the 
pBBoel*8  soa.     De^iones,  that  he  saw  him  have 
■a  the  same  dress  when  he  came  back  from 
Baaooch.    Depones,  tbat  ho  does  not  mind  to 
bate  scco  the  said  Allan  Dreck  wear  the  said 
short  coat  at  any  otlier  time,  except  upon  Mon- 
day and  Tuesday  the  Jltb  and  12th  of  May 
lasL    Depones,  tbat  upon  Monday  the  tlth 
day  ef  fiay  iaat,  be  went  to  the  wood  for  fire- 
wesd ;  sod  upon  bis  coming  home  in  the  af- 
•tiausa,  he  found  the  said  Allan  Breok  dressed 
is  the  said  black  short  coat,  working  at  iiotatoes 
sis^g  with  John  More  Blaocoll,  and  John  Beg 
MaeeaU,  two  of  the  panuePs  servants,  having 
SB  his  owa  black  breeches.    Depones,  that  he 
MP  the  said  Allsn  Brcck  upon  Tuesday  morn- 
ijif  ,  the  ISib  of  May  Ust,  in  the  pannePs  house, 
1  in  the  said  black  coat  belonging  to  the 
J  and  Una  trowsers  striped  with  white 
Mch  as  now  shewn  to  him  in  the  clerk's  hands, 
ads  bine  bonnet.    Depones,  that  the  depo- 
■Ht  was  toid  the  said  Allan  Breck  left  Aucharn 
«df  epoo  the  Tueaday ,  bimI  the  deponent  has 
■tassa  him  since.    Depones,  that  uponFri- 
^  evening  the  15th  of  May  last,  the  deponent 
M  John  Beg  Maccoll  overtook  Katharine 
MmsbU,  servant  to  the  pannel,  in  the  brae 
iksve  Ibe  boose  of  Aucharn,  with  a  |>ock  or 
■cfc.  Bad  aooaetbing  in  it,  under  her  arm  ;  the 
iipsBiMt  asked  her,  what  she  had  got  in  the 
mtkf  To  which  she  answered,  that  it  was 
iAsa  Bff«ck*s  clothes,  and  tbat  she  was  going 
Is  hide  them  ;  and  the  deponent  and  the  said 
isha  Beg  Jlacooll  aaw  her  bide  the  sack  in 
vbicb  the  said  clothes  were;   and  that  this 
VOL.  XIX. 


A.D.  1752.  [ISO- 

happened  about  four  o'ch>ck  in  the  saiil  after- 
noon. Depones,  that  upon  Thursday  evening 
the  14lh  ot  May  last,  afier  notice  of  Glcnure's 
murder  came  to  Aucharn,  Allan  Stewart,  stm  to 
the  pannel,  desired  the  deponent  and  John  Heg 
Maccoll  to  bide  a  laqfe  Spanish  gun  that  used 
to  stand  in  the  brewhouse;  and  told  them, 
tbat  be  himself  had  concealed  a  lesser  gun  that 
used  to  stand  at  the  end  of  the  girnel*  in  the 
barn,  under  the  said  girnel,  where  lie  thought 
it  would  be  safe.  Depones,  that  the  deponent, 
and  the  said  John  Beg  Maccoll  on  the  said 
Thursday  evening,  hid  the  large  or  Spanish 
gun  that  used  to  stand  in  the  brew- house,  uniler 
the  thatch  of  the  sheep-house,  aud  three 
swords  they  took  out  of  the  bam,  and  a  fourth 
that  was  brought  by  John  Beg  Maccoll,  the 
deponent  does  not  know  firom  whence,  under 
the  thatch  of  the  back  of  the  barn.  Depones, 
that  about  four  o'clock,  Friday  the  15th  of  Alay 
last,  the  pannel  desired  the  deponent  to  carry 
the  above  arms  from  the  bouses,  and  hide  them 
in  the  moor:  I  hat  accordingly  the  deponent 
and  John  Beg  Maccoll  took  tne  aforesaid  large 
gun  from  Hit*  back  of  the  sheep- house  under 
the  thatch,  and  the  said  four  swords  from 
under  the  thatch  of  the  barn,  and  found  tlie 
gun  that  used  to  stand  in  the  barn  under  the 
girnel,  where  the  said  Allan  Stewart,  the  pan- 
nel's  son,  said  be  hid  it,'  and  carried  tbem 
to  the  moor,  and  bid  them  in  the  hole  of 
a  rock,  above  the  peatrmoss.  and  that  it 
was  told  at  Aucharn,  tbat  there  were  sol- 
diers coming  to  the  country,  before  these 
arms  were  hid  in  the  hill,  as  above.  Depones, 
that  the  said  John  Beg  Maccoll,  and  the  depo» 
nent,  had  the  above  arms,  when  they  overtook 
Katharine  Maccoll;  as  aforesaid,  with  the 
clothes.  Depones,  that  the  Isrge  or  Spanish 
gun,  that  stood  in  the  brew-house,  was  charged 
with  powder  and  small  drops ;  and  that  there 
was  no  shot  in  the  small  or  lesser  gun,  that 
used  to  stand  at  the  end  of  the  girnel  in  the 
bam ;  but  Allan  Stewart,  the  panners  son,  car- 
ried out  tlie  said  gun,  two  or  three  mornings 
in  order  to  shoot  black  cocks  in  the  latter  end  of 
March  or  beginning  of  April  last.  Depones, 
tbat  Allan  Breck  Stewart  waa  also  in  use 
to  carry  out  the  said  large  or  Spanish  gun  two 
or  three  mornings,  in  order  to  shoot  black  cocks; 
and  about  tbat  time  saw  him  endeavour  to  help 
the  lock  of  thesaid  gun  with  a  file.  And  being 
interrogate  for  the  pannel,  depones,  that  he,  the 
deponent,  has  no  skill  about  guns  ;  but  heard 
the  aaid  Allan  Breck  and  Allan  Stewart,  the 
pannel's  son,'  more  than  once  complain,  that 
the  guns  were  in  bad  order.  Depones,  that 
when  the  deponent  came  home  from  the  wood, 
upon  Monday  the  11th  day  of  May  last,  the 
pannel  was  not  at  home;  and  the  depuneut 
was  told  he  was  gone  to  Keels  to  meet  the 
laird  of  Airds :  and  that  the  deponent  had  gone 
to  bed  before  the  pannel  came  home  tbat 
night:  and  that  early  upon  Tuesday  raomiug, 
when  the  deponent  got  up,  he  saw  the  pannel 


*  **  A  meal- ark  orcoru-cbest." 
K 


Arnot. 


131]  35  GEORGE  11. 

^«iti«'Mit;  who  f«>|il  him  that  he  wu  going  to 
l;>i-  >:  s  h'..ii<;':  and  that,  to  the  deponent's 
'{i  :.\rlr>i.4:«^  .;;] m  Breck,  or  the  panners  sons, 
'«r.r  (M>.  xUin  up:  that  be  saw  thepannel  go 
tjwLiAly  Li'ttershuna,  where  Appin  life*.  De- 
;>onefl,  that  Allan  Breck  Stewart  left  Ancfaam 
befure  the  panuel  returned  from  Letlenhnna: 
aiid  upon  an  interrogatory  put  for  the  panned, 
if  the  pannet  had  gifen  tbealiort  black  coat  the 
deponent  raw  the  said  Allan  Breck  wear,  al|d 
which  he  has  deponed  belonged  to  the  panneli 
was  giren  by  the  pannel  to  the  deponent,  or 
any  other  of  bis  servants,  before  the  said  11th 
of  Ma^,  depones,  that  the  said  black  coat  was 
not  given  to  liiro,  the  deponent,  nor  to  any 
other  of  the  servants^  to  his  knuwledee.  And, 
being  interrogate  for  the  pursuers,  after  shew- 
ing him  the  powder-horn,  now  in  the  clerk's 
i)ands,  and  which  bad  been  formsriy  shewn 
him  when  he  was  examined  upon  the  nreeor- 
nititfn,  whether  lie  had  ever  seen  it  before  tne 
time  of  taking  the  said  precognition  ?  depones, 
be  never  did.  And  beinff  interrogfate  for  the 
pannel,  depones,  that  Gwnore  and  Balliereo- 
Ian  dined  at  the  pannel's  house,  in  company 
with  tlie  pannel,  tne  day  after  they  were  hke 
to  have  quarrelled  at  Kintalline  as  aforesaid. 
Depones,  that  it  was  ordinary  for  the  pannel 
to  gite  a  dram  to  bis  serrants  every  tiaie  he 
distilled  a  double  drau{rht  of  whisky.  l>e- 
pones,  that  the  double  draught  was  a  ifistilling, 
when  the  deponent  and  the  otiier  servants  got 
the  dram  mentioned  in  the  first  part  of  this  depo- 
sition. Cauta  scientUt  pateL  And  this  is  the 
truth,  as  he  shall  answer  to  God.  And  declares 
he  cannot  write.  (Signed) 

J.  FfiaoiJSON.  Arch.  Campbell. 

J<^n  Beg  Maecoll*  servant  to  James  Stewart 
pannel,  ased  27  years,  unmarried,  sworn, 
purged  and  examined  ut  tupruj  by  the  sworn 
interpreter,deponefl,  that  the  latter  end  of  winter, 
or  beginning  of  spring  last,  early  in  a  morning, 
the  pannel  gave  a  dram  to  the  deponent,  Don- 
ga! MaccoU,  and  Johu  More  Naccoll,  both 
servants  to  the  pannel,  in  the  pannel's  brew- 
house  :  that  the  conversation  falling  upon 
Glenure,  the  pannel  complained  that  Glennre 
was  no  friend  of  his :  but  that  that  was  not  the 
worst  of  it ;  but  that  if  he  was  to  so  on  as  he 
did,  it  was  likely  in  five  years  he  wouM  be 
laiid  of  Appin ;  and  the  deponent  and  the  other 
two  Maccolls  answering,  that  that  was  likely 
to  happen,  the  pannel  replied,  that  he  knew 
once  a  sett  of  commoners  m  Appin.  who  would 
not  allow  Glennre  to  carr^  matters  with  such 
a  high  band  ;  and  to  which  the  deponent  and 
the  other  two  Maccolls  answered.  That  tliey 
did  not  believe  there  was  any  commoner  in 
Appin,  that  dnrst  contend  or  strive  with 
Glenure  in  such  a  way :  that,  immediately 
thereafter,  the  deponent  and  Dougal  Maecoll 
went  oiH  of  the  brew-house,  leaving' the  pannel 
and  John  More  Maoeoll  there.   Dqiones,  that, 

*  See  the  PaDDePs  Dying  Speech  at  the 
•ndeflheCaM. 


Trial  of  Jama  Siewartf 


[ISE 


after  they  went  out  of  the  hrew-kouse,  either 
that  day,  or  some  time  thereafW,  the  depo- 
nent and  Dougal  Maecoll  talked  tngetkcr^ 
what  the  import  of  this  ceovemtion  might 
be ;  and  that  the  deponent  was  at  a  loss  whe- 
ther to  consider  it  as  an  enconragement  to  de- 
stroy Glennre,  or  as  a  complaint  against  the 
ccmimoners  of  Appin,  as  not  being  so  fkithfvl 
to  the  pannel  as  he  expected  them  to  be.  Do^ 
pones,  that,  in  Marcb  last,  Allan  Breck  Stewart 
came  to  the  pannel's  house,  late  in  the  evenini^y 
dressed  in  a  bloc  side  coat,  red  waiatcost,  wSm 
Mack  shag  breeches,  and  a  feathered  bat:  tlmt 
be  kwked  into  the  khcheu,  and  went  ianiae- 
diately  to  the  room  where  the  pannel  and  hie 
family  were:  that  aflerwarda  he  used  to  go  te 
the  conntrr  to  different  places,  and  eome  fre- 
qnently  back  to  tlie  pannel's  honse:  that  euce 
he  renmmed  there  a  week,  which  is  the  longeal 
time  he  stayed  there  at  one  time.  Depencs, 
that  the  said  Allan  Breck  Stewart  came  te  the 
pannel's  bouse  from  Fasnacloieh  upon  Monday 
the  nth  of  May  last,  about  mid-day,  dreaacd 
as  above:  that,  upon  the  evening  of  the  amd 
day,  the  deponent  saw  the  said  Allan  Bntk 
dremed  in  a  black  short  coat  with  silver  bottow. 
Depones,  that  there  was  two  short  black  ooals 
with  silver  buttons  in  the  pannel's  honse ;  the 
one  belonging  to  the  pannel,  and  the  other  la 
Allan  Stewart,  his  son ;  the  deponent  does  eoC 
know  which  of  them  the  said  Allan  Breck  had 
on.  And  depones,  that  the  coats  were  so  like^ 
that  he  could  not  disiinguisb  the  one  from  the 
other.  And  dep4»nes,  that  it  was  one  of  these 
black  coats  he  hud  on,  the  deponent  having^ 
seen  him,  the  said  Allan  Breck,  near  the 
houses,  in  his  side  clotlies;  and  sohm  tine 
thereafter,  coining  from  the  boose,  dressed  w 
the  said  short  coat,  in  the  evening  of  the 
said  Monday  the  1 1th  of  May,  and  came  where 
the  deponent  and  John  More  Maecoll  were 
covenng  potatoes,  and  wrought  with  them  fbr 
sometime.  Depones,  that,  sometime  tbere- 
afler,  a  young  lad,  brother  to  Glenco,  by 
name  Donald,  as  tlie  deponent  thinks,  eansete 
them,  and  told  that  Glenure  was  come  boeie 
from  Edinburgh,  and  was  to  go  to  Lochaber; 
upon  which,  some  conversation  happeiuar 
about  removing  the  tenants,  Allan  BreSsk  saio^ 
Devil  a  bit  of  the  new  tenants  would  get  poe- 
session,  unless  they  had  a  warrant  to  shew^ 
or  come  in  by  force.  Depones,  that,  when  the 
ssid  Allan  Breck  came,  upon  the  llth  of  May 
last,  to  Aucharn,  the  pannel  was  seeing  the 
deponent,  John  More  Maecoll,  and  I>>anl 
Maecoll,  working  at  potatoes ;  and  that  AlSui 
Stewart,  the  pannel's  son,  was  likewise  there: 
that,  when  Allan  Breck  came,  they  were  sitting 
all  together ;  and  that  he  seated  himself  hy 
the  pannel  and  had  some  conversation  in 
English,  which  the  deponent  docs  not  uuder« 
stand.     Depones,  that  Charles  Stewart,  son  t» 

the  pannel,  and  Stewart,  daughter  to 

Fasuscloich,  came  to  Aucharn  from  Fasna- 
ekNcb,  a  little  after  the  said  Allan  Breck.  De* 
pones,  that  upon  Thursday  the  14th  of  May 
last,  the  pannel  gave  a  letter  to  the  deponenty 


iSS]  ^H^^       ^r  Murder^ 

|iWMif««d  to  Chirlot  SteHart,  notary  pub- 
lie  ■!  Mmrybitrgii  ;  and  totd  Ihtf  iJepoueol^  that 
lis  ktter  ii»tlo  ifuike  or  en  use  the  fiaid  Charles 


\  to  the  country  of  Appin  to  pro* 
GiMiurPi  in  cue  he  had  not  s  suf- 
icMttlwiffiiitt  to  remore  the  l<»»aiii«  of  Ard- 
•nitl.  Oipiwciy  lh«t  the  piimtel  desired  ifte 
tiM  ni«ke  lU  po&siblf  di<|:!i(ch«  iind  dt^ 
rM»  Bfvck  MacGombieat  Kiniulline,  and 
ri  Jubo  More  MitccutI,  ?KTVHrit  to  lUe 
iwlio  was  then  at  KniUilinc,  to  ferry 
Bt  from  RiniulliQe  to  Oiiich,  being' 
mum  Mttrier  lliati  the  ferry  of  Ballacttelish. 
AfpOM*.  llMt  Ibe  |iMiD€l  ^\m  told  him,  tbnt  be 
9M  ia  g«A  n«i»  iiioc»ey  li-om  VVilbamSteHart, 
mmdbmaiLwA  Harybun^h^  to  pay  for  miik-covrs 
I  wen  boi^bt  for  him  in  the  country  ;  and 
I  ii  IIm  uoiittv  was  not  aenti  he  \voidd  not 
»tbftfiii«rs.  ]Jepoo99,  thai  he  waa  terry  ed 
m_  HJMtalboa  lo  Unich,  and  went  on  to  lort 
WM—i»  aii  aol  Glenure  at  the  three-mile 
mmm^  mh^  rnkwA  Ui«  depooent  from  whence 
ba  enocl  Ta  wbicb  the  deponent  ansff  ered, 
*  Ofer  Ketlis.  D«|>oueaf  tbatr 
vrith  Cvientire^tt  serfanl,  he 
barf  aofpB  «aaf artatioa  wiih  him,  and  told  htm 
ba  wm  ^^  ta  Fort  W  i It lu m.  Depones ,  t hat 
ba  a^  •at  frocn  Audiarn  alNjut  7  or  8  o'clock 
ja  Iba  mmmsi^  and  made  all  the  dispatch  be 
1  la  F«ri  il  iitiazn,  where  he  arrived  about 
'aiaalr,  DcfKNiea,  that  irl^n  he  came  to 
WiMiam,  be  dehveriMl  the  letter  he  got 
INai  tb«  f«aoal  to  Williaju  Stewart,  merchant 
l«  MMy%mM\ghn  who  told  hitD,  that  Charlea 
llawait  iba  aolary  waa  not  at  home,  he  bar- 
iaf  fane  to  Ibe  braes  of  Loch  a  be  r  in  the 
aad  told  the  defionent,  that  he,  the 
,  bad  wrote  to  the  panne t  in  the 
Ibai  there  was  a  notary  alnng^ 
>  who  would  lerf  e  the  pannel  aa 
•AaaGleiiiira.  OepoueSf  that  he  does  not 
faaMaiharlbai  be  asked  for  any  money  from 
WHIiMi  Sirwart,  n^  did  be  give  him  any,  but 
miAf  ba  would  tend  aervanti  for  the  cattle 


be  atayed  a  rery  short  lime  at 
WiUiatii :  tbat  the  taiti   n  tlliain  Skew»rt 
if  he  wanted  victuals  ?    Upon  the 
t*a  antwarin^  he  did  not,  the  aaid  WiJ- 
iUgbi  binci  into  hb  liouie,  and  g^ave  him 
1 1   aail  tbe  depooent   imtneiliatety  re- 
hMit  Ipjr  ibe  aboit  road  to  tlte  ferry  of 
I.  aod  IbflMl  Glenure  at  the  terry 
biaa :  ibai  iba  dtfment  required  ot  tbe 
le  ferrv  bim  immediately,  and  the 
daairaa  bim  to  si&y  idl  he  would  be 
f^ilb  Clamire'a  hor^ies  ;  but  the  depo- 
*  la  bitn  that  tbe  stream  \vaa  rapids 
_  aw  aome  time  bffnre  they  woukJ 

9&tf  Iba  batsaa,  be  oui^ ht  to  ferry  him  imme- 
Jattl/,  arbiab  bif  acconliogly  did  ,  and  that 
^m  fljfllt  ba  about  4  o'clock  :  that  u(>ofi  biji 
mmm^.^km  farry*  ba  nit  Archibald  Maciuiah, 
fcrfv  apao  iba  Appto  ude,  lo  whom  be  told 
«hwa  ba  faa4  baan,  ami  bia  errand ;  and  that 
iba  laid  farrjrar  told  the  drpne nt,  that  he  waa 
that  he  wm  i^oiiig  to  meet 
B,  that  were  to 


'.■s: 


A.  D-  1752-  [131 

come  to  Ard!»biel,  bad  come  to  Olenduror  with 
their  cattle ;  and  were  tn  Liikc  po«sessioii  next 
day  ;  and  the  deponent  laid  him,  that  he  dul| 
Doi  believe  tliey  would  get  possesifioa  till  Ibeif  ^ 
warrants  were  seen.      Depones,  that,  a  little 
iherealler,  be  met  Alexander  Stewart  elder  of 
Dallacheliifb,  to  w tiom  he  told  where  lie  had 
been,  and  his  errand,  and  the  cimveraatioa  he 
had  with  the  ferry -man;   and  Ballachelitih  de 
aired  bim  to  tell  bis  master,  if  he  would  send] 
for  bim,  he   would  go  along  uith  him  lo  M0I 
Glenure's  waiTaot     Depones,  that  he  paa 
through  tbe  wood  of  Leitermore,  and  met  i 
saw  nobody  there :   that  he  went  then  homafl 
and  gave  the  pannel  an   account  of  bis  er<*l 
mad.     That  he  was  hardly  an   hour  thera|| 
when    John    Mackenzie,    Glenure's    8ervanl|j 
came  to  the  door  calling  for  tbe  pannel :  thttl 
the    pannel    went   immediately  ta  the  doofpl 
and  aaked  the  aerrant,  what  was  tbe  maltertj 
and  what  news  be  bad  P  To  which  the  Bervavtl 
replied,  The  worst  (  ever  had ;    my  master  m\ 
murdered  in  the  wood  of  Leitermore:    upom| 
which  James  Hiewart  said,  Lord  blaaa  me !  < 
he  shot  ?    To  which  the  servant  aoiweredf  I 
be  was  shot,  and  said  the  pannel  ought  to  go  ' 
and  take  care  of  bis  corpse :  thut  the  serraat 
immediately  went  olT,  but  ueither  tbe  pannel 
nor  any  of  bis  family  went  near  tbe  corpse  ; 
and  the  pannel  said,  that,  aa  he  and  Glenuro  , 
were  not  in  good  terms,  and  some  of  the  peoplo  I 
that  were  to  meet  Glenure  bad  arms,  he  did  I 
not  cai-e  to  go  near  them,  not  knowing  what] 
might  happen.     Depones,  that  his  master  saidt  ] 
tbat  it  was  a  dreadful  aecidcut,  and  was  alraiii  f 
would  bring  trouble  on  the  oountrv  ;  and  ap«  j 
pea^ed  to  be  sorry  for  what  haa  happeneq*] 
Depones,  that,  upon  the  evening  ol  Friday  tli#| 
15th  of  May  last,  the  deponent  and  tlie  said  I 
Dougal  l^Iaccoll  overtook  Katharine  Maccoll, 
servant  to  the  pannel,  going  up  the  brae  abov#  j 
the  house  with  a  sack,  and  tKHnetbing  in  it,  ] 
under  her  arm  ;  and  tbe  said  Dougal  Maccoll  I 
aiked  her,  what  she  had  got  there  f    To  wh* 
she    answered,   That   it    was    Allan    Breok%| 
clothes,  which  she  was  going  to  hide ;  and  sh« 
hid  them  accordingly  in  tl^  deponent's  pro* 
aence.      Depones,  that,  when  tbe  aaid  Allan  I 
Breck  came  first  to  Aucbam,  he  used  to  lie  ia  J 
a  room  tu  the  tower  end  of  the  bouse ;  but  al^l 
terwards  be,  and  the  pannera  sons,  and  anyj 
young  people  that  came  about  the  house,  when 
the  aeaann  was  more  advanced,  used  to  lie  iu  th«  ] 
barn.     Depones,  that,  upou  the  aaid  Friday 
evening   tbe    15th    of    May    lait,    Margaret) 
8tewArt|  tJie  pannePa  wife,  desired  the  de|Mi-J 
oent  and  the  said  Dougal  Maccoll  to  bide  all  j 
the  arma  that  were  abimt  the  house,  as  tbera^ 
was  a  party  of  soldiers  coming  to  tbe  country  : 
that  accordingly  they  took  two  guns  and  threa  , 
BwoLxis,  and  a  fourth  «word  wa*  delivered  to  tba 
deponent  by  Allan  Htewart,  son  to  tbe  pannel ; 
whidi  two  gvns  and  four  :^word8  tbe  deuonaat  < 
and  tbe  aaid  Dougal  Maccoll  hid  to  the  oraa  %  | 
good  way  above  the  pannera  house  ;  and  tlitt  1 
two  guns  in  tbe  clerk  ^s  hands  being  shewn  ta  \ 
tbe  difilimilt,  defiooeai  ibat  tbeia  ware 


135] 


25  GEORGE  IL 


Trial  of  James  SievMrtf 


1136 


9ame  two  f^iins  that  were  hid  as  abore.    De- 
]M>iies,  that  the  Urfj^est  of  tlie  t^uDS,  now  fshewn 
the  (lepooeiit,  was  loaded,  aod  lay  in  the  brew- 
liousi. ;  and  the  deponent  belietes,  that  either 
Allan  Stevrartfthe  pannePs  son,  or  Allan  Breck 
btewait,  charfi[e4l  the  said  gun;  forthedepo- 
iioiit  saw  AlUn  Breck  Stewart  iiave  the  said 
gun  Ronip  time  belore,  and  ^o  with  it  in  order 
to  Nhoot  hlack  locks :  titat  late  on  Thursday 
evenin*;  liie  I4lh  of  May  last,  after  notice  came' 
of  <>}euuti:'s  murder,  the  said  Don^al  Maccoll 
tuld  the  (U*poncnt,  that  the  pannePs  wife  had 
desired  to  hide  all  the  arms  about  the  bouse, 
not  knowiujijr  but  ihat  some  soldiers  mi<i[ht  come 
to  the  country  ;  ufion  which  the  deponent  and 
the  said  Dougal  carried  the  said  loaded  gun 
from  the  brew-houKc,  and  hid  it  umler  the 
thatch  u|ion  the  (Mitsi«l(f  of  the  sheep -house,  and 
carried  three  swords  out  of  the  barn,  and  hid 
them  under  the  thatch  upon  the  outside  of  tbe 
said  Irarn,  Mat^  that  bara  whnve  the  pannePs 
children  and  Allan  Breck  used  to  lie :  that, 
upon  their  being  desired  by  tbe  said  Margaret 
Stewart  next  day  to  hide  the  arms  better,  they 
took  the  foresaid  loaded  gun  and  three  swords 
out  of  the  places  where  they  bad  bid  them; 
and  upon  their  inquiring  for  tlie  other  gun  that 
used  to  lie  in  the  said  barn,  Allan  Stewart,  the 
lianuel's  son,  told  them,  he  had  hid  it  under  the 
lar^cgirnel  in  the  barn,  and  told  them  they 
need  not  stir  it,  as  it  was  safe  enough  there ; 
hut  they  answered,  as  they  were  hiding  the 
Test,  they  would  hide  that  likewise ;  and  ac- 
c<»rdingiy  the  deponent  went  and  took  the  said 
Ktm  from  tlie  trimel,  where  the  said  Allan  told 
him  he  had  hid  ir,  and  concealed  them  all  to- 
gether as  above:   upon  recollection  depones,' 
that  it  was  upon  the  Thursday  evening  the  de- 
ponent and  the  said  Dougal  Maccoll  inquired 
about  the  little  gun  which  lay  at  the  end  of  the 
girnel  in  the  barn,  and  that  the  said  Allan  Stew- 
art, son  to  the  pannel,  told  tbem  he\ad  hid  it, 
as  above,  under  the  girnel.    Depones,  so  far  as 
he  can  remember,  be  did  not  see  the  said  little 
gun  upon  Thursday,  but  saw  it  stand  as  above, 
cither  upon  Tuesday  or  Wednesday  precedin(r> 
and  used  for  some  time  preceding  to  see  it 
stand  in  the  same  place. ,  Depones,  that  it  was 
upon  Friday  evening  the  deponent  took  the 
said  gun  from  under  the  girnel,  where  the  said 
Allan  bad  hid  it;   and  adds,  that  the  reason  he 
did  not  see  it  on  the  Thursday  was,  that  he 
was  from  home  almost  that  day.    Depones, 
that  he  did  nut  see  the  said  little  gun  load- 
edi  since  March  last,  when  the  black  cocks 
were  crouding  ;   that  then  there  was  a  shot 
of  drojis  in  it,  and  the  said  Allan  Breck  car- 
ried it  out  one  morning,   and    told   that  it 
mis-gave  with  him  thrice  at  a  black  cock,  and 
shot  with  it  the  fourth  time  without  killing 
the   black  cock.     Depones,  that  the  brew- 
house,  where  the  said  large  gnn  used  to  lie,  was 
always  locked,  bat  when  people  were  in  it: 
that  the  barn,  where  the  said  little  gun  stood, 
had  a  lock  and  key,  but  waa  not  in  oae  to  be 
locked  since  the  crop  was  renoved  out  of  it, 
whicli  1I9S  at  the  Uw»  tl^  wcrt  dpne  with 


their  oat-seed,  which  was  some  time  before 
May -day.  And,  bein^  interrogate  for  tbe 
pannel,  depones,  that  neither  of  the  guns  were 
in  good  order:  that  the  large  or  loaded  gun 
was  in  use,  when  going  to  be  snapped,  to  stand 
at  half-cock,  and  the  little  gun  was  in  use  to 
snap  or  misiire.  Depones,  that  the  little  guo 
had  an  old  wore  flint  in  it ;  and  that  he  ob- 
served this  flint  in  the  said  gun,  when  he  was 
in  use  to  see  it  stand  at  the  end  of  the  girnel  as 
above ;  but  did  not  observe  whether  it  had  a 
flint  or  no,  when  he  took  it  from  under  the 
girnel  as  above.  Depones,  that  he  knows  no 
fault  the  lock  of  the  little  gun  had,  but  its  being 
in  use  to  misfire ;  and  that  the  lock  was  on  the 
said  gun  when  he  hid  it  the  Friday  evening  as 
above.  Depones,  that  w  hen  Allan  Brock  canne, 
uiKin  Monday  the  11th  of  May  last,  to  the 
place  where  the  pannel,  deponent,  and  others, 
were  covering  potatoes  as  above,  they  had  sit 
together  but  for  about  a  quarter  of  an  liunr; 
the  deponent  went  to  work  at  potatoes  at  a 

greater  distance,  and,  before  he  went  away, 
card  a  message  had  come  for  his  master,  to 
meet  Airds  at  KMl,  and  lieard  his  master  speak 
of  going  there ;  but  when  be  went,  or  wlio 
went  along  with  him,  the  deponent  does  not 
know :  that  the  deponent  continned  working  at 
the  potatoes  till  the  evening,  and  the  pannel  was 
not  come  home  when  he  came  from  bis  work : 
that  the  pannel  came  home  at  bed- time,  ac- 
companied with  John  More  Macilichattan,  who 
lay  with  the  deponent  that  night.  Depones, 
that  it  was  a  while  after  (the  deponent  cannoC 
say  how  long)  the  pannel  parted  tVom  the  de« 
ponent,  and  the  other  people  that  wrought  at 
the  potatoe-ground,  that  Allan  Breck  came 
dressed  in  the  black  short  coat  as  above,  and 
wrought  with  them  at  the  potatoes.  Depones, 
that  they  all  got  up  t(»gether,  atter  the  sahl 
Allan  Breck  came  to  them,  and  sat  with  them 
as  above ;  and  lie  thinks  the  pannel  went  then 
towards  the  house.  Depones,  that  Allan  Breck 
and  the  pannel  were  in  use  to  converse  to- 
cher, sometimes  in  English,  and  sometimes 
in  the  Irish  language.  Depones,  that,  when 
be  went  to  Fort- William,  with  theabove  letter, 
to  Charles  Stewart,  the  notary,  he  had  no 
orders  from  his  master  to  inquire  after  the  mo- 
tions of  G tenure,  or  to  acquaint  any  body 
thereof.  Depones,  that  he  never  saw  the  said 
Allan  Breck  Stewart  change  his  clothes,  and 

5ut  on  short  clothes,  at  any  time,  at  the  said 
ames  Stewart's  liouse,  before  the  said  lltb  of 
May ;  but  that,  as  the  deponent  best  remem- 
bers, at  the  time  the  said  James  Stewart  waa  »t 
Edinburgh,  he  saw  tlie  said  Allan  Breck  dressed 
in  a  black  short  coat,  a  dun  liig  coat  which  the 
deponent  thinks  belonged  to  Allan  Stewart,  the 
pannePs  son;  and  he  heard  the  Mid  Alka 
Breck,  or  others  about  the  house  say,  that  he 
was  then  going  to  RaniMich.  Cauia  Mcientim 
paieL  And  this  is  truth,  as  he  shall  answer 
to  God ;  and  depones  be  oannot  write. 

p.  GiUkt.  Aub.  CAMraiy.. 


m 


for  Murder. 


A.D:  iV^'i. 


flSS 


hftprnii^  in  {r^Qernl  Pulte- 
■f^**   r«|riment    u1    ((Kit,  ritArried,   ngeii   52*  ' 
^tOMai  eitnl,   iiwori»,    jiurt'CMl   ami   cxammeil  • 
tl  mprm^  iftefMnies,  that,  i1|mti  the  *J3(I  of  May 
Imi,  lie  wms  1   by   Mr,  Campbell  ot 

BaraldiM,   tl  %irrre  some  nrm^  bid 

"     r*  I  '  ' ' nnoepB  fioiise;  imd 

■  *^'  n  llir  (luragrapb  of 

I   "  l«o  conjrnantls 
ikt  rvftvtftt  lit  t)t  l)diini^«4, 

i^MM4  U»    (  I  .    !u  the  tuloitrl 

^Mtrft)  tSie  firponent  to  ^o  m  fenrcU   of  such 
•!«&.     f^ccvritmgly   Ibe   tlrponent  wpnt   tbat 

awrilh  ApftHy,  *ml  Uwk  riloo^  with  biin  Mr. 
kk  CtmbO^W  M*  Auebfiiiiiculbm,  to  ibiect 
9  ?M«;  ttail,  vvben  tbvy  came  to  a  bilt 
f  tbe  iMonrPii  house,  Mr.  €anipf»f!ll  touml 
'"ma  bill  4iliof*!  the  )>annel'5  bou&e 
|f»i»  futMlcvti  ant)  tour  broad -swords,  wbt'reof 
bftvitt^  uif nr  I     '     '  ir  tit,  the  deponent 

wwd    aad  -  u  out.      Arul    the 

I  *ir  *.i^  r^,  ijt'>»  IN  ibe  clerk's  hdnds, 
«li«^ii  m  the  depnnent,  drpooes,  that 
m?  itir  f rry  same  iDzeeu  be  saw  taken 
xfbffiBui;  and  depciitt^ii,  that  tbe  br^'ert 
!■«<»  furies   IV as  toaded,  and  the  other 
M;  aAit  ib.i^  ilraMD  the  shc^t  of  the 

_|Bii|rr1  pii^c  1 1  to  be  lunded  with  small- 

means  drops  and  small  shig 
and  it  appeared  to  the  dt^po- 
jt|  uiiloadfd  piece  had  been 
NIC'    ptit    his    finger  in   the 
p  brought  out  black.     And, 
for  the   panoelf  whether  a 
ittctt  »»  I  aid  by  foul,  will  not,  after  a 
'•  lime,  (lie  nne*s  finger,  when  put  in 
Rifncatltfof  it,  as  well  a»  when  it  has  beep 
f  drpones,  hecannnt  leU^  not  being- 
i    I**    M#»t'  arms  nsed   so.     And   de- 
piHK,tl  >d  unbi»ded  uiece  bad  a  Uick 

«!■•**'  <(>e;  but  wbicb  bad  only  one 

wttfm'^^tt  m  It.  But  deponei,  that  a  ^un, 
iMftfltfa  Irtck  With  mm  »crew-uail,  may  be  6t 
mmin  to  b«  fired  with;  and  adds,  that  that 
ffvnftff  tin*  lock  wanting;  tire  nait^  was  tied  lo 
^^  y   a  itrin^f,       I>ppoiie«,  that  the 

f*<  /eea,  were  carried  abiu^  lo  Fort- 

Wk-u4ii.   v*hrre  the  di'tuMunt  delivered  them 
l»  thtt  adjutant  at  I  on  Wdbatn  ;  and  does 
Ity  what  m*:  lid  loek  upon 

I  |fa0ce«  BOW  vd8  lost ;  btii 

If  to  bate  U't'K    uy  >i»€Klenl,     Cauia 
jmitt.    And  thU  ts  irutli,  an  he  shall 
l«God.  (Signed) 

Ja.  Puioeacm.  D.  CriApEAcr. 


afvil 


•  I    Ancbtnsicallan^  mar- 
wilnei6%   cih^d,  !»worn» 
u t  tnpta^  depotiCHf  That 
,  bt:  thinks  on  the  TSd, 
iiipeau  to  go  along" 
..cli  of  amif  ;  and, 
%*,  above   the   punners 
<0r  Ai»r  ilepontnt  di««overed  two 

in  #  t  (HI   be  immediately 

Uic  '  ^:i«  with  him,  vibcn 

taknii  mik  vi  uic  covc  ;  9*  aUo,  tbere 


wnt  also  thffe  three  or  four  broad -iworda.  De- 
pones, that  one  of  the  ifuna  was  b«  litier  than  ' 
th**  t»thpr;  «nd  the  bfibti'St  gun  had  a  ktick 
bid  fiUin*(  the  lock  tii'd  by  a  hUma  about  thfr 
stock  :  but,  whether  the  said  loik  had  any 
Bcrew-njiil,  or  not,  he  does  not  remf  mber ;  anil 
lljiil  ihese  arms  were  carried  a*>uv  by  captaia' 
Chapean.  Depone!;,  that  the  ]i|r|»u^t  of  (be 
said  two  uun^  was  unloaded,  and  the  bcarieat 
louded  :  that  he  saw  the  shot  of  the  loaded  gun 
drnwn,  which  consisted  of  drops,  with  some 
siuhU  ttliiuf  among-  them,  Depoues,  that,  tn 
order  to  knuw  whether  the  unloaded  pifce  bad 
been  lutely  fired,  severals  put  iheir  fing^er  in  < 
tbt*  muitzle  of  it;  and  particularly  the  depo- 
nent ;  Htid  tlu'  \m\*er  comiusf  out  black,  ht-,  and 
the  rest  uiih  him,  fiom  thence  concluded,  ibar 
it  hnd  been  lately  fired.  And»  beioff'  interrogate  i 
fur  the  pannel,  m  betber  a  musket  that  has  been 
laid  by  fuul,  ut^ter  firincTt  ^vill  not,  in  like  man- 
ner, f^te  a  man*!*  hni^ev  put  in  the  mosezle  of  itp 
after  it  has  been  tiied  a  month  or  longer  be- 
fore ?  depones,  that  he  n€?er  made  thai  trial 
upon  a  s^un  that  he  knew  to  have  been  so  louj^ 
betbre  tired.  Cau$a  scicntitt  patet.  Aadthii 
is  the  truth  as  be  shall  answer  to  God. 
(Signed) 
J  A.  FEacnsoN,  Pat,  Campbell. 

Wiltifim   Stewart  inerchtnt  in  Maryburgh» 
aged  thiriy-sijc  years,  married,  sworn,  purged  < 
and  examined  ut  supra ;  and^  beingf  shewn  d 
letter,  <laled  at  Maryborgh  lbe'l4tU  of  May 
last,  signed  William  Stewart,  and  addressed  on 
the  back  to  the  pannel,  beincf  the  writing  num- 
ber 10,  tn  the  inventory  subjinned  to  the  lil>el  ; 
depones,  That  the  letter  is  of  bis  hand- wnlinf>,  1 
and  was  subscribed  by  him,  and  sent  to  Ibfi*' 
[lanneli  of  the  date  it  bears,  by  Ewan  Macken- 
zie, a  common  carrier  in  IViirybnrgb.     And, 
beintf  alsn  shewn  a  letter  dated  at  Aucharn  tjie  * 
1 4th  of  i^Iay  last,  eight  o'clock  in  the  mornincr, 
sig'ned  Jame^  Stewart,  and  addressed  on  the  , 
back  to  Mr,  Charles  Stewart,  writer  at  Aucbin- 
tour,  depones,  that  the  said  letter  was  wrote 
by  the  pannel,  and  sent,  of  the  date  It  bears,  by  \ 
John  Beer  Maccoll^  and  in  absence  of  the  satd^ 
Charles  Stewart,  who  was  not  then  at  Mary* 
bur^h,  was  delivered  by  the  said  Maccoll  in  I 
the  deponent,  who    broke  it  open,    and  told 
Maccoll,  that  Charles  8rewart  was  not  Ihen  in  ] 
Marybiirgrh,   but  that  he    esrpected  him   thai 
nif^ht,  but  thought  that  he  cnuld  not  go  alon^ 
with   Maccoll :  ihat  Maccoll  asked  the  depo- 
nent, if  be  should  wait  for  htm,  or  go  after  biro  F  I 
The  deponent  answered,  it  was  needless  ;  for,  I 
if  Charles  Stewart  could  go^  be  would  take  m  ] 
boat.      And,    being    interrogate    whether    ht| 
wrote  any  answer  by  John  Maccoll,  or  if  h%\ 
gave  him  any  verbal  answer  to  the  post^ript, ! 
wherein  the  pannel  wrote  to  Charles  Stewart,  I 
to  tell  the  deponent  to  send  him  eight  pouudi  I 
iiterlmg  ?    depones,    he    gave   no   answer   iit  ] 
writiiiLf  ;  and  thinks  be  did  not  give  any  verbal  I 
answer,  if  it  was  not,  that  he  bid  him  tell  bi^J 
master  be  was  not  in  cash,  which  was  the  cafe«  T 
And   deponesp  thai  the  deponetit  w  ta  htmsetf  ' 
X 


mi 


25  GEORGE  11. 


Trial  of  James  Stewartf 


[140 


intended  by  Uie  William  in  the  postscript 
D«{)ODes,  that  Maccoll  did  not  stay  three 
minucea  with  the  deponent,  when  he  went 
away.  Deponea,  that  the  next  day,  being 
Friday,  or  the  day  thereafter,  the  deponent 
had  a  message  from  the  pannel  about  ten 
o'clock  forenoon,  or  betwixt  ten  and  tweke,  by 
Alexander  Stewart,  packman,  who  told  the  de- 
ponent, that  he  was  sent  by  the  pannel  to 
Glenevis,  and  was  ordered  in  his  wair  to  call  at 
the  de(H>nent  to  send  the  pannel  fire  pounds 
sterlinflf ;  and  that  his  errand  to  Glenevis  was, 
to  desire  him  to  send  for  a  horse  that  he  had 
bou((ht  from  the  pannel :  that  the  deponent 
told  the  packman,  that  he  was  not  in  cash,  and 
could  not  send  the  five  pounds  ;  upon  which 
the  packman  said,  that  the  five  pounds  was  to 
relieve  some  cows  that  the  pannel  had  bought 
for  the  deponent  at  Ardshiel ;  and,  if  the  depo- 
nent did  not  send  the  money,  he  could  not  get 
the  cows :  that  the  deponent  said,  he  was  indif- 
ferent, but  bad  not  the  money  to  send  ;  upon 
which  the  deponent's  wife  desired  the  packman 
to  go  forward  to  Glenevu,  and  to  call  there  in 
Ilis  reloro,  and  he  Hould  get  the  money,  lie- 
cause  they  couM  not  conveniently  want  the 
cows  :  that  the  packman  accoidingfly  went 
mway ;  and  the  deponent's  wile,  as  she  after- 
wards told  him,  for  he  was  not  present,  gave 
liim  three  guineas :  that  the  deponent  is  sure 
the  money  was  not  giveaon  a  Sunday,  and 
thinks  it  was  on  a  Ssturday ;  and  therefore 
believes  it  was  upon  Friday  the  15th  that  the 
packman  first  called,  the  deponent  being  cer- 
tain that  a  night  intervened  betwixt  his  calling 
and  getting  the  money.  Depones,  that  he  had 
no  conversation  with  the  fMickmatt  touching 
AUan  Breck  Stewart,  whose  name  was  not 
mentioned  b^  either  of  them ;  but  tlie  deponent 
asked  him,  if  be  had  come  by  the  road  where 
that  unkicky  murder  of  Glenure  had  happened  ? 
And  the  packman  told  him,  he  did;  but  the 
deponent  did  not  ask  htm  who  was  suspected 
for  it ;  nor  bad  any  otlier  oonvemtion  on  that 
aobject,  there  being  a  great  many  people  pre- 
sent in  the  shop  at  the  time.  Depones,  that 
the  deponent  received  two  of  the  oowa  about 
eight  or  ten  days  after,  and  other  two  he  did 
not  g^  at  all.    And  being  interrogate  for  the 

ennel,  depones,    that,    upon   AUan   Brack 
Bwart's  first  coming  to  this  c 


country,  which 


was  in  the  month  of  February  or  March  last, 
the  deponent  saw  him  at  tidinburgb  :  that 
thereafter,  upon  the  Ist  of  May  last,  the  depo- 
nent happenng  to  be  at  the  pamiel's  house, 
Allan  Breok  Stewart  came  there  from  Rannoch, 
and  was  dreased  in  a  short  black  coat  with  cleer 
buttons,  such  as  these  now  lying  in  the  court. 
Depones,  that  when  the  deponent  saw  Allan 
Breck  Stewart  at  Edinburgh,  which,  he  thinks, 
was  in  Fcbmary,  be  told  the  deponent,  that  it 
was  then  but  three  or  foor  days  sanoe  he  arrived 
frons  France.    Depones,  that,  at  that  time. 


AUao  Breck  Stewart  waa  dreased  in  k>ng 
olethea,  a  blue  eoat,  aad,  aa  the  deponent  think^ 
a  red  vest,  a  hat  feathered  m  the  iande.  De- 
Ihtti  wbfB  the  daMBem  wm  at 


1 


pannel's,  the  1st  of  May,  Charles  Stewart  waa 
there  also,  in  order  to  go  to  Glenure,  and  inti- 
mate a  sist  that  hail  b^n  obtained  in. name  of 
the  tenants  of  Ardshiel,  upon  a  bill  of  suapenaion 
of  a  removing  against  tnem.  Depones,  that 
Allan  Breck  Stewart  told  the  de|ionent,  that  ho 
had  been  a  soldier  in  the  kind's  troops  at  the 
liattle  of  Preston ;  and  he  thinks,  he  said,  it 
was  in  Lsscelles'  regiment,  but  is  not  positive, 
uhelher  it  was  Lamsellcs' or  Murray's.  And 
depones,  that  thereafter  he  was  in  the  rebel- 
lion. Depones,  that,  when  he  was  at  the  paa« 
nel's  house,  the  Ist  of  May,  as  aforesaid,  Im 
did  not  sleep  within  the  pannel's  boose,  and 
seemed  to  be  on  the  watch,  lest  he  ahoukl  be 
searchetl  for.  And,  beinjg  interrogate,  whether 
Allan  Breck  Stewart  did  not  then  lie  in  the 
barn,  and  some  of  the  pannel's  ehikiren  with 
him?  he  saya,  it  is  very  probable  he  might; 
but  the  deponent  knows  nothing  of  it ;  for  the 
deponent  saw  him  next  morning,  and,  he  thinks^ 
breakfasted  with  him  at  the  pannel's  houaa. 
Depones,  that  the  deponent  is  first-conain  te 
the  iiannel,  and  also  Wm  brother-in-law.  De- 
pones, that,  before  Charles  Stewart  went  with 
the  tenants  to  Gleniire's  house,  upon  the  let  ef 
May,  the  deponent  heard  the  pannel  say  to  the 
tenants,  that  they  might  go,  or  not,  aa  they 
thought  proper ;  but  he  would  be  far  firom 
advising  them.  Causa  $ci€ntim  patet.  And 
this  is  truth,  as  he  shall  answer  lo  God. 
(Signed) 
P.  Grant.  Willum  StsmuSb  ■ 

Barbara  Watt,  spouse  to  William  Stewart^ 
merchant  in  Maryburgh,  aged  twenty-eiglkt 
years,  aworn,  purged  and  examined  ui  svprc, 
depones.  That  the  day  immediately  after  the 
murder  of  Glenure,  about  mid-day,  Alesandir 
Stewart,  packman,  brought  the  depooeH'a 
husbaud,  the  preceding  witness,  a  aieangB 
from  the  pannel,  to  aejid  him  five  poimda  atei^ 
ling,  to  pay  for  some  cows  that  the  pannel  bed 
bought  tor  him  :  that  the  deponent's  fanaband 
was  angry  at  the  message,  and  said,  that  he 
had  not  then  the  money  to  give,  having  given 
away  aome  money  that  morning;  hot  that 
though  be  bad  it,  he  would  not  send  it ;  nod 
the  packman  answered,  that  he  waa  a  snffidaal 
but  himself  for  all  the  sum,  though  the  pannal 
bad  not  aent  for  it:  that  the  packman  told  «t 
the  aame  time,  that  he  was  goin^  to  Olcnefii 
on  aome  message  from  t ' 
horse;  therefbra  the  ' 
desired  the  packman  t 
from  Glenevis,  and  he  would  get  the  moneys 
for  that  they  behoved  to*  have  the  oet^  to 
stock  a  farm  they  had :  that  thia  ounfSfin 
tion  happened  in  the  deponent'a  ■boo,  when 
several  other  persons  were  present.  DepoQfli, 
that,  next  day  in  theafVemoon,  the  denoiiMit^ 
husband  not  being  then  at  home,  the  ilepeneBl 
met  the  padcman  in  the  street  of  Marybuigh, 
and  happening  to  have  three  guineaa  tben  in 
her  fiMrae,  ahe  gave  them  to  himthere  in  ikm 
street,  and  called  her  servant-maid  to  be  wil- 
ims»  beoeae  Jthm  wee  Bo.lattcr  ^^Mfctlw  pw 


ne  was  goinr  lo  uncnevw 
Mnthepaond  touching  • 
I  deponent  imerpoeed,  and 
I  to  call  there  in  hia  return 


fw,  OOP  i^cdipi 
Ml  iiMwrr  lo  G«(], 

P.  GlA*^. 


J&r  Murder* 

grren  by  the  jmcfrrrmrt. 
Ami  ibts  is  truth,  »9  she 

JURQAftA  Watt, 


Stfwart^  trflTeHins^  packman  in 
ihirtVi  iTiimflrried;,  witness  cited  J 
amirm^  ■■■■♦il  taid  examinrd  vf  rupra^  by 
Ai^Mh  Campbell,  writer  in  ItiTerary,  f^worn 
iMvpiiicr  ^mvnif , ilrpooes,  That,  upon  Friday 
teUifc  tlif  of  May  f«^,  nhout  twelve  o'clock, 
^JHWl  iioir^  me  il«fM>neDt  to  ^o  to  Fort- 
t  WilfifttB  Stewnrt,  merciiant  there, 
I  him  fire  ponnth^  or  fife  guineas  ; 
fbe  Hepooent,  thui  his  triend  Allan 
t  to  leave  the  conntryf  a9  there 
liiw  into  it,  am!  that  he  might 
f  of  Glefiure*a  murder  ;  and  thtit  it 
t  upon  him,  the  itannel,  to  soppty 
I  Breck  in  money ;  and  the  pnn- 
mI  ^Mirtd  tlMilepODent  to  leirthesaid  William 
,  that  be  osoBt  srnd  him  money,  though 
"*  bvTVw  it  tWmi  twenty  purses;  and 
I  afao  to  tell  the  said  William  to  give 
ia  Htfm  pounds  sterhng  to  John  Breck 
"  '  an^  to  Appin  a  I  Koafisnacoaii, 
f  he  ramr  to  demand  such  a  sum  ;  and 
i  de-ftred  llje  deponent  to  deriinnd  tour 
"nft  more  from  tlie  said  Witliam, 
Cbt  pHee  of  ft  couple  of  mi  Ik -cows  boug^ht 
iirliiio.  Depootes,  that^  in  eonseqitence  of  the 
he  went  to  Fort- William, 
1>e  irr-  fy  in  the  cvenlugr:  that 

t  tfcff  »^  )  Stewart^  and  dem ander) 

I  biiD«  for  Hit;  use  of  the  pannel,  the  two 
r  ilarf^-ineiitioned  :  that  the  said  W  iMiam 
I  Mat  be  bftd  not  money »  but  desired  the 
;  la  go  lo  Glenens,  and  that  he,  ihc 
I  Wnfiaen,  had  tM.^tr.^*:.  t©  uieneti!!^  would 
liitltlffi  ilrponrni  the  moniing^,  and 

l^banrbaemnd.  i '  ^  ;  i^h.  thxt  tlie  pannel 
inra^tbe  deponent  to  trti  iiie  said  William 
r  l»  amd  notice  lo  Glpnevisr^  that  he 
for  a  Ft«med  honte  GlrneTis  had 
the  pan  net  J)fpf^ttr<r,  that  he 
««DII»  tltco^rif,  where  he  out  sun - 

«t,  tad  a&Ayed  three  the  »a  h  oij^ht: 

Aa^  i0  the  aaid  Wiilinm  did  nut  come  there 
iMvitj^  HHimmft.  Hie  Iflth  dav  uf  May  la^t, 
AtAfptociit  V  n  r;  to  Port^WiHiHm,  and 

tmUmaalci  Stewart  upon  4 lie  street, 

1(1  III  It  um  answer  was  ready  ?  that 
f  Willram  Mid,  that  be  would  lei  him  go 
J,  feodwinil  i'*'^"  *  ■     '^-sn  house,  and 
^  tbarealUr  .irt,  ipouae  to 

i  W(nt«iii,€amr  u  u.   ...  .,  and  gate  the 
I  lhr«*  gwooui.  with  uhich  the  depo* 
Lttck   imnjrtll;ik'U  to   Auchara,  and 
liesaid  Hatur- 
Lij  he  came  to 
iicit  at  home;  but 
rt»al,  tioTrCf-  came, 

'  ^'JU, 

af 


^aiir  tlie  orp 
tatlis  lanacl,  mild 
'     liriAOcicfi 


I  a  ^fiari«r  ol*  a  iPiile  Umn  Auctt^in .  that, 
8w  ■  aoir  te  f>,  1 19,  of  tUit  ? (dinoe. 


A.  0.  nss. 

rmSmtmty  upon  Ihia  nottoe,  Mrt, 
the  pann^l'a  wrfe,  and  the  deponent,  went  tti'^ 
Inshaiif,  and  by  the  way  tlie  deponent  offeretj' 
the  three  guineas  he  had  brou|;ht  from  Port- 
William  to  Mrs-  Sicivart,  but  she  desired  him^' 
ro  keep  them  :  that,  upon  their  arrival  at  IqV 
shntg,  ihey  found  the  pannel  a  priaooer;  but. 
Mrs*  8tewirt  and  the  rloponent  baring  had  ao' 
cess  to  converse  with  the  pannel  apart,  the  pan^ 
uel  asked  the  deptment,  what  money  hebroucrhf 
from  Fort- William?  and  upon  the  deponent'4" 
telling  him,  that  he  brought  three  guineas,  the 
pannet  pulled  a  green  purse  oat  of  his  pocki 
out  <»f  which  he  took  two  gt]iD€its,aDd  gave theni 
to  I^Int.  Htewart,  and  Mrs.  Stewart  delivered  tb 
two  guineas  immediately  to  the  deponent ;  an^ 
the  pannel  desired,  that  the  ttve  gaineaa  shouW 
be  sent  to  that  unhappy  man^  meaning  Allad 
Breck,  to  see  if  he  could  make  his  escape 
and  pitched  upon  the  deponent  as  a  person  Ina 
should  go  with  the  money  ;  and  does  not  rcJ 
member  positively,  that  the  pannel  spoke  abou'^ 
Allan  Breck ^s  clothes  :  that  soon  ihereafler  th( 
pannel  nas  carried  off  by  a  parly  to  Forl*Wil* 
liam,  and  the  deponent  returned  to  AucharW' 
with  the  pann*  Ps  wife :  that  the  partv  and  pan-  ' 
riel  called  at  Auchnrn,  and  took  a  a  ram  ;  ati^ 
upon  their  going  off,  Mrs.  Stewjirl.the  panned 
wife,  io»il  iht'  deponent,  that  he  must  go  U 
Allan   Hreck  with    the  (i»e  guineas  and  hr 
clotht's  ;   uud  upon   the  deponent's  inquirini 
where  he  would  find  him?     Mrs.  Stewart  tol 
him,  (hut  he  would  cast  up  in  Koarisoacuatil 
Depones,  that,  ^ome  time  after  night- fall,  th( 
deponent  got  his  supper  at  Aucharn,  and  hov 
soon  he  was  done  eating,  Mrs.   Stewart,  tK( 
pannel's  wife,  carrieil  the  deponent  to  the  bad 
uf  the  brewhouse,  where  there  lay  a  sack,  om 
of  which  the  said  Mrs.  Stewart  took  a  blue  sid 
coat,  red  wui*>tcoat,  black  breeches,  a  hat,  am 
!«ome  shif  Is  all  which  she  delivered  to  the  6i 
ponent,orderin5j  him  lojjo  with  theclothesai 
money  lo  Koaliauacoan  immediately,  and  d 
liver  them  to  John  Breck  Maccotl,  boumap 
Appin,  if  he  did  not  meet  Allan  Breck  hiinself^ 
Depones,  that  the  said  Mrs.  Stewart  directed 
the  deponent  not  to  carry  the  riolhes  lo  Jobti 
Breck  MaccoU's  house,  lest  any  body  tpighi 
Kee  them.     Drpones,  that  be  declined  going, 
and  told   Mrs.  Hir^wart   that   she  might  send 
some  other  peruon,  and  I  hat,  at  any  rate,  he 
dill  not  chuse  to  go  alone  in  the  night-ttme; 
but  that  Mrs.  Slrwurt  inMitted  uiwn  his  goings 
telling  there  was  no  4'tlicr  body  kbe  could  send» 
»n  tkjth   her  servants  were  ^0T>e  to  Fort*Wil- 
iiam,  and  dpsired  ihe  deponent  to   carry  his 
aister^  Marg^aret  Stewart,  a   part  of  tke  w«y 
with  him:  that  accordingly  the  »uid  MMrgaret^ 
\m  sister  went  along  with  the  de]>ou(  ut  bs  farai 
Larich  in  Olenco,  where  bhe  piirtt-d  «uh  htn 
about  daylight  Sitoday-moriijng:  that  there 
afler  the  depoornt  trav(*lfed  alone  to  Koalisna- 
cotin,  and  lefv  the  clothes,  as;  directed,  at  the  root 
of  a  lirtree,  at  somi;  distance  troin  the  houses  ; 
and  as  the  depoitent  tvas  going  to  the  hou!»e,  he 
met  said  John  Brei  k  !\IaccoI1,  and  asked  him  if 
Allan  Breck  f*as  tlKfrr?   And  upon  hi*  deny- 


s 


US]  25  GEORGE  II. 

10^  that  he  was  there,  the  depoiiuut  ex|)re&scd 
■omG  Kurpi'ise,  and  told  that  he  was  sent  with 
money  and  clothes  to  him  ;  told  from  whence 
he  came,  and  how  he  g^ut  iiie  money  and 
clothes  ahove-mentiooed ;  uiion  which  the  said 
John  Breck  Maccoll  told  the  deponent,  that 
Allan  Breck  was  in  the  heugh  of  Corryna- 
keigfh,  above  the  house  of  Koalisnacoan  ;  and 
if  the  deponent  inclined  to  see,  the  said  John 
Breck  Maccoll  directeil  him  to  i;o  to  a  hill 
above  the  houses  and  whistle,  and  that  the  said 
Allan  Breck  would  come  to  him  :  that  the  de- 
ponent answered,  he  hod  gone  far  enoui|;h  after 
the  said  Allan  Breck  already,  pointed  out  to 
John  Breck  where  he  had  Ictt  the  cloihrs,  and 
ave  him  the  five  guineas  to  be  given  Allan 
(reck.  Depones,  that  he  went  to  the  said 
John  Breck's  house,  where  he  slept  for  some 
time,  and  thereafter  dined  with  the  said  John 
Breck  at  his  house.  Depones,  that  the  said 
John  Breck  Maccoll  told  the  de|M>nenf,  he  did 
not  knaw  how  the  said  Allan  Breck  could  leave 
the  country,  as  he  had  no  victuals,  and  he,  the 
said  John,  bad  none  to  give  him,  and  desired 
the  deponent  to  go  to  Mrs.  Alacdonald  of 
Glenco's  house  at  Infer,  and  get  a  peck  of  meal 
for  Allan  Breck's  nse,  which  the  dvpouent  re- 
fused. Depones,  that  the  said  John  Breck 
Maccoll  told  the  deponent,  that,  unless  he  had 
come  with  the  money  and  clothes,  he,  the  said 
John  Breck,  would  nave  been  obliged  to  go  to 
Fort  William  for  money  to  the  said  Allan 
Breck.  Depones,  that  he,  the  deponent,  came 
back  to  Aucharn  upon  the  evening*-  of  the 
Sunday  the  17th  day  of  May  last,  and  ^he  pan- 
nel's  wife  asked  him  if  he  had  seen  Allan 
Breck  P  And  upon  his  answering  he  had  not, 
and  telling  that  Allan  Breck  was  at  Koalisna- 
coan, though  he  had  not  seen  him,  and  that  he 
had  given  the  clothes  and  money  to  John  Breck, 
she  appeared  satisfied.  Depones,  that  the  said 
John  Breck  Maccoll  desired  the  deponent  to 
conceal  his  carrying  the  clothes  and  money  to 
Koalisnacoan,  as  alM>ve  ;  told  him  that  he  could 
DOt  prove  it  against  him,  and  that  he  could 
safely  depone  he  did  not  deliver  the  clothes  to 
him,  since  he  only  pointed  out  where  they  were. 
Causa  scientist  patet.  And  this  is  the  truth,  as 
he  shall  answer  to  God.  And  declares  he 
cannot  write.  And  further  depones,  that  he 
is  a  distant  relation  of  the  pannePs,  though  he 
cannot  tell  the  degree :  that  his  father  lives  ai 
a  (juarter  of  a  mile's  distanoe  from  Aucharn ; 
and  that  he,  the  deponent,  used  t'l  be  often  in 
the  pannel's  house.  And  this  is  also  truth,  as 
he  shall  answer  to  Goil.  i 

(Signed)  j 

P.  Grant.  Archibald  Camfdkll.  ! 

John  Breck  Maccoll^  bouman  to  Appin  in  j 
Koalisnacoan,  aged  forty  years,  married,  I 
sworn,  purged  and  examined  ut  supra^  by  the  i 
above  Mr.  Archibald  Campbell,  sworn  inter-  j 
preter,  depones,  That,  U|>on  the  afternoon  of , 
Saturday  the  IGth  day  of  May  last,  as  the  de-  i 
ponent  was  in  a  fir -bush  near  Aldavoim,  at  the 
lb«t  of  the  heugh  of  Corrynakdgh  iu  Koalis- 


Tjial  of  Jama  Stetoart, 


[144 


nacoan,  he  heard  a  whistle ;  and  apon  looking 
up,  saw  Allan  Breck  Stewart,  at  a  little  dis- 
tance, beckoning  to  the  dc|KMient  to  come  to* 
wards  him  ;  which  he  did :  that  aflec  saluta- 
tions,  the  deponent  told  him,  he  was  airaid  it 
was  no  good  action  that  occasioned  his  beiog 
in  such  a  remote  place,  and  at  such  a  distance 
from  any  common  road :  that  Allan  Breck  an- 
swered the  place  was  not  very  far  from  a  com- 
mon road :  that  the  deponent,  having  heard  the 
day  before  of  Glennre's  murder,  charged  Allan 
Breck  with  being  guiUy  of  it:  Uiat  Allan  Breck 
asked  the  fleponent,  what  he  had  heard  about 
the  muider  ?  That  deponent  answered,  that  be 
had  seen  no  iierson  from  the  strath  of  Appin ; 
but  that  two  poor  women,  that  had  come  op 
Glcno,  were  telling  that  Glenurc  was  mur- 
dered Tiiurstlay  evening  in  the  wood  of  Letter- 
more,  and  that  two  people  were  seen  going 
from  the  place  where  he  was  murdered  ;  ami 
that  he.  Alia*!  Breck,  was  said  to  be  one  of 
them :  that  Allan  Breck  answered,  he  bad  no 
concern  in  it ;  and  that,  if  his  information  wis 
right,  there  was  but  one  person  about  the  mur- 
der ;  and  that,  as  he  was  idle  in  the  country, 
he  was  sure  he  would  be  suspected  of  it ;  bst 
that  that  would  give  him  little  concern,  if  he 
had  not  been  a  deserter,  which  would  bear 
harder  upon  him,  in  case  he  was  apprehcudeil, 
than  any  thing  could  be  proved  agiiinat  hini 
about  the  murder :  that  the  deponent  did  not 
believe  him,  when  he  said  he  had  no  hand  in 
the  murder  of  Glenure  *,  and  not  caring  to 
press  it  much  upon  him,  told  him,  that,  as  he 
was  alre:idy  suspected,  it  was  dangeroua  to 
have  any  intercourse  with  him,  and  pressed  him 
(o  leave  tlie  place,  Icbt  he  shotdd  bring  the  de- 
ponent and  his  family  to  ti*ouble  :  that  Alba 
Breck  said,  he  did  not  doubt  hut  the  family  oi 
Ardshiel  would  be  suspected  of  the  muraert 
and  it  was  probable  the  [uinnel,  and  Allan 
Siewart  his  son,  might  be  taken  into  custody 
about  it ;  and  that  he,  Allan  Bieck,  was  afraid 
Allan  Stewart  the  pannel's  son's  tongue  was 
not  so  good  as  his  father^s ;  by  which  words 
the  deponent  understood,  that  Allan  was  easier 
entraj-.ped  than  the  panuel  ;  and  the  deponent 
still  mbisting  upon  Allan  Breck*s  leaving  that 
neigh bourh(N>d,  the  said  Allan  Breck  told  biiD, 
he  would  not  leave  the  town  for  eight  days,  un- 
less some  necessaries  he  expected  came  to  him ; 
and  told  the  de|M)neut,  unless  some  money  caine 
for  him  before  next  morning,  he,  the  deponent, 
must  go  to  Fort -William  with  a  letter:  that 
though  the  deponent  refused  to  go,  Allan  Brack 
looked  about  among  the  trees,  and  finding 
a  wood- pigeon's  quill,  made  a  pen  of  it,  and 
having  made  ink  uf  some  |>owder  he  took  out  of 
a  powder-horn  that  was  in  his  pocket,  he  wrote  a 
letter,  which  he  tcild  the  deponent  he  must  de- 
liver to  William  Stewart,  merchant  at  Mmry- 
burgh  ;  and,  upon  the  deponent's  telling  bim 
that  he  would  by  no  means  undertake  thai, 
as  he  was  informed  that  every  body  that 
went  to  Fort-William  was  searched,  Allan  Breck 
said  it  was  an  easy  matter  to  hide  a  letter ; 
the  deponent  answered,  If  he  was  catcbcd 


14»] 


^  Murder. 


A.  D.  1752. 


[U6 


IMft  iUtt  str^H,  wltnt  would  he  do  witli  it  F 
Awa  Drvck  tulil  Itim  tlmi  Ibe  letU^r  must 
Dot  W  fbtjotl  Upon  him  by  any  means,  and, 
if  lit  ttAs  culched  viiili  (lie  letter,  he  must 
m  k  Wfore  it  WAS  foiinil:  that  the  de|Kmenl 
lbe«  loM  tJie  saiiI  Allnn  Breck,  that  he  did 
Ml  hm9  lint  he  would  be  obliged  to  go  tor 
Mmcbpfr  next  ik)r  tu  Fort  >Villiam,  in\vhich 
CMt  Ike  ini^ht  posMbiy  carry  ihe  letter;  but  at 
l^«lMliiiie  tuld  the  said  Allan  Brcck,  if  he 
WW  eiirWffd  hiUi  the  leMer,  be  >voutd  tell  atl 
hf  kwtw  abivut  him  :  ibal  the  said  Allan  Breck 
liir  ifptioritnt  1*1  rrcitci  (Ttttbrlor  Glcfico's 
fit;  I  to  him,  which  the  de- 

^   par tin|;;«  the  fdid  Allan 
loAii  ibc  tlfc^jionfui,  he  would  see  him  next 
Hcftooe*!,  that,  at  llie  time  of  the  abo?e 
'^MUfio,  ihtf  ftaiil  Allan  Breck  Stewart  was 
ia  n  iluii'Colouied  i^rcat  coat,   black 
until,  ftsid  blue  trow  sera  atriiied  with  white. 
t\tm  4tfoneui  ha%in|^  seen    iu  court  the 
ftliortcoAt  with  the  buttons  on  the  poc- 
9m6  iW  trowsers,  depones,  that  th«y  are 
ttod  trowfiers  he  saw  the  said  AU 
Bt9«k  wtw,  Of  exactly  like  ihem.     De- 
li tkttt  c«rly  QpOD  Sunday  mornini^  the 
dtjr  of  Hay  last,  u  the  deponent  got  up 
ftlnait  luN  cornt,  he  saw  a  man,  which 
t  to  be  the  said  Allan  Breck 
toward*  him  up  the  glen  ; 
iprr  ar,  the  deponent  knew 

-ifwarti  irHvelting'  pack- 
won  in  Api^iu  (the  immedinte  preceding  wit- 
tiMijt  wUo  19  CO  U!i  in -get  man  by  the  father^s 
Bl*t4>  AlUn  Drvck  -,  und  sdWr  salutation^  and 
ikK4r|Miieiit 'ft  expressing  hia  surprize  at  see- 
Im  kim  «o  early,  the  stiid  Alexander  8tewart 
mmti  Ibedcpotieul,  tl  he  had  ^nn  Allan  Breck  ? 

AnltW  tl-'" '•  refusiag  hishavioLr  sren  him, 

Akoa^'  .  8e«med  surprized,  and  told 

ihM  tie    '...-..  :  nied  he   wouM    ine^t  Allan 

Iknk  Iherr:  and  that  he  tiad  brought  some 
9mtmm\t-*>  f-r  tnirt  ;  and  the  deponent  inquir- 
iif  oita  oug!»t,  the  sutff  Alemnder 

JRwrifi  I  Inm,  that  he  hud  Ifrouirlitfire 

foBcoa  OAil  it(im*i  ilniheii ;  and  lold  that  he  had 
•  fRMl  deml  of  trouble  iu  getting  the  money  : 
Ikai  ba  bail  b^^n  mrnt  by  the  pani»p|  to  WilliAm 
*^  Tchiiiil,    at  Flirt    Williani,    Irom 

H   guincr.9  ;  und  that  the 
ive  him  the  other  two 
BiifiM  i  -^i  '  H  t**  wife  if^^ve  him 

ittteain,  (1  A  (hat  Atlun  Breck 

^Hki  mrel   1. i^ ^uacoan  ;    but  (hat 

■o  be  f»ouh1  l«^.»fe  the  mouey  and  clothes 
VMb  ll»t*  ill  :'un<  lit  :  iniifn  this  the  deponent  told 
(W  aaiil  ,  that  he  had  seen 

Bt-  .  and  that  he  e.v- 

iii«i*i4*i^  ttini  lold  him,  that  he  be* 
Btr^k  Wtt«  then  in  the  heugh  of 
I-  <    he  would  go  to  a  hill 

*1  oui  tu  hi  III-,  Rud  whis* 
'       Brfcck 


VOL.  XIX 


rSlcw 

much 

I  I  Alex- 

.  auld  not 


gfo  Ihat  length  to  see  bis  uncle^si  son  ;  the  said 
Alexander  Stewart  answered,  that  he  Itad  slept 
none  for  two  nights,  and  was  very  much  fa- 
tigueil ;  and  upon  this  he  delivered  to  (he  de- 
ponent the  five  guineas,  and  told  he  had  left  iho 
clothes  at  some  distance,  and  would  shew  them 
to  the  de[Minent  when  he  was  going  away  :  that 
the  deponent  told  the  said  Alexandt-r  Stewart, 
that  Allan  Breck  wanted  a  peck  of  men  I  from 
Gleneo  or  Callart*^  house ;  and  that  he,  the 
said  Alexiinder  Stewart,  ought  to  gel  ii  for  him; 
but  the  said  Alexander  Stewart  refuined  to  go  for 
it ;  that,  aHerwards,  the  said  Alexander  Stewart 
slept  in  the  deponent's  house.  Depones^  that  the 
said  Alexander  Stewart  told  him,  that  the  pan* 
nel,  and  Allan  bit  son,  were  made  prisoners  ttie 
eTening  before,  and  sent  to  Fort  VViiliam  ;  and, 
upon  the  deponent's  inquiring  who  was  sua* 
pected  of  Glenure*s  murder?  the  Said  Alexan- 
der answered,  I  bat  it  was  Allan  Breck,  and  that 
it  was  likely  Ihat  lite  panuel,  and  Allan  his  Aon, 
would  stanil  the  first  trial  for  it.  Depones, 
that  the  said  Alexander  Stewart  and  the  depo- 
nent dined  together;  and  as  the  said  Alexander 
Stewart  was  going  away,  about  12  oVluck,  he 
pointed  out  a  lir*tree,  at  (he  root  of  which  he 
said  he  had  hid  Allan  Breck^s  clothes.  De* 
pones,  that,  alter  the  deponent  had  gone  ta 
ned,  upon  the  said  Sunday  evening,  he  hetrd 
one  knocking  at  the  window,  and  imagined  U  ' 
might  be  Allan  Breck  ;  the  deponent  got  up, 
and  went  out  to  bis  shirt,  and  saw  the  said  Al- 
lan Breck  at  a  little  distance  from  the  housa ; 
and,  upon  the  deponent's  coming  up  to  him, 
the  said  Allan  Breck  asked  him  if  any  message 
had  come  ft^r  him  ?  The  deponent  told  him, 
that  his  uncle's  son  had  come  with  five  guineas 
and  some  clothes  :  that  Allan  Breck  cumpbio«^  ' 
ed  there  wa.s  hut  little  money,  but  hoped  it 
would  do  his  business :  that  the  deponent  told 
the  said  Allan  Brtck,  he  was  afraid  he  would 
starve  among  the  heather;  and  that  he  wts 
not  able  lo  help  him :  that  Allan  Breck  an- 
swered, he  had  no  occasion  for  victuals,  but 
want«^d  8  drink  very  much :  upon  w  hich  the 
deponent  ueiit  back  10  his  house,  and  carried 
out  some  whey,  or  6ome  milk  and  water,  in  a 
noggin,  and  the  6ve  guineas,  and  gave  both  to 
Allan  Breck  :  thai  the  deponent  then  went  for 
(he  clothes,  w  hich  ho  also  gave  the  said  Allan 
Breck,  which  consisted  of  a  blue  long  coat,  red 
waistcoat,  black  breeches,  a  hat,  some  stock* 
ings  and  shirts  ;  that  the  deponent  (old  the  said 
Allan  Breck,  that  the  paunel,  and  bis  son  AU 
Ian,  were  apprehended  upon  account  of  (jIo- 
nure's  murder  ;  to  which  Allan  Bi>eck  aniwer- 
ed,that  that  was  no  more  than  he  expected  ; 
but  tt  would  not  signify  much,  as  there  could 
be  no  proof  against  thftin  :  but  expressed  aoaic 
apprehension,  lest  Allan  Stewart,  sod  to  th« 
pannel,  might  be  betrayed  by  hi*  own  tongue  : 
that  the  deponent  desired  the  said  Allan,  n<»vr 
(hat  he  haa  got  all  the  necessaries  he  expected, 
to  go  atiout  his  business;  and  the  «J)id  Allan 
Breck  (iromi^^l  to  do  so  ;  hut  told  the  depo- 
nent, that  he  must  meet  him,  the  said  Allan 
Breck,  ne*l  morning;  that  he  mustd^tlircr  tht 
L 


U7]  25  GEORGE  11. 

'depoQpnt  the  clothes  he,  the  said  Atlan  Breck, 
had  tlien  on,  to  wit,  the  hiack  short  coat  aDil 
trousers  shewn  to  the  deponent  in  the  c1erk*8 
hands,  in  order  to  be  kept  by  the  deponent  till 
he  delivered  them  to  the  pannel's  wife  :  Ihat  the 
deponent  promised  to  meet  the  said  Allan  Breck 
next  mornins;,  hut  did  not  see  him  ;  and  when 
the  disponent  went  out  next  morningf,  lie  found 
the  said  short  black  coat,  trowsers,  and  the  nog- 
gin in  which  the  deponent  carried  the  drink  to 
the  said  Allan  Breck,  lying  together  in  the 
place  where  the  deponent  parted  with  the  said 
Allan  Breck  the  night  belure ;  and  found  in 
one  of  the  pockets  of  the  said  short  coat  the 
powder-horn  now  shewn  him  in  the  clerk's 
hands ;  and  depones,  that  he  has  not  seen  the 
said  Allan  Breck  since.  Depones,  that,  in  a 
conversation  the  deponent  had  with  the  panne), 
as  the  deponent  best  remembers,  altout  two 
I'ears  ago,  mention  being  made  of  Glenure's 
being  about  to  take  the  management  of  the 
estate  of  Ardshiel  from  the  said  panuel,  and 
thereby  di8abliu|^  the  panuel  from  beini;  of  any 
service  to  Ardshiers  children,  he  heard  the  pan- 
nel  say,  he  would  be  willing  to  spend  a  shot 
upon  Glenure,  though  he  went  upon  his  knees 
to  his  window  to  fire  it.  Depones,  tliat  he 
beard  a  waif  report  in  the  country,  that  Ard" 
shiel  (attainted)  liad  sent  home  a  message,  that 
lie  believed  all  his  friends  were  dead,  when 
Glenure  was  allowed  to  go  on  at  the  rate  be 
did.  Depones,  that,  upon  the  evening  of  the 
said  Saturday  the  10th  day  of  May  last,  Katha- 
rine Maccoll,  spouse  to  Hugh  Maccoll,  in  Koa- 
lisnacoan,  told  the  deponent,  that  sh^  had  seen 
a  niiiu  in  the  hcugh  of  Corrynakeigh  that  day 
at  some  distance,  and  was  greatly  frighted  : 
that  the  de)M)UPiit  told  her,  there  used  to  be 
'  bo|r|es  scon  in  that  place,  but  she  must  take  no 
notice  of  what  she  jiad  seen,  for  fear  of  frii;lil- 
ing  the  women  of  the  town,  and  prevent  thrin 
from  attending  their  cattle  in  that  part ;  and 
that  the  reason  of  tellini;  her  so,  was  for  fear  it 
would  be  known  it  was  Allan  Brpck  she  saw. 
]>epones,  that,  uhon  he  found  the  black  short 
cout  and  trowsers  ho  saw  Allan  Breck  wear, 
ujKin  Monday  morning  the  Ittth  of  May  last,  he 
hid  them ;  and  that,  after  he,  the  deponent, 
had  l»oen  some  time  prisoner  at  Fort  William, 
liccame  along  with  a  party  of  soldiers,  to  whom 
he  shewed  the  place  he  hid  the  said  clothes  ; 
and  the  said  party  took  the  said  clothes  out  of 
the  place  he  had  hid  them  in,  in  the  deponent's 
presence,  and  carried  them  to  Fort  William. 
Causa  scinitia  patet.  And  this  is  truth,  as  he 
ahall  answer  to  God  ;  and  depones  he  cannot 
write.  (Signed) 

Arch.  CAMrucLL.  Ja.  Ferguson. 

Hu^h  Macclcntif  barber  in  Mary  burgh,  aged 
S7  years,  marrieil,  sworn,  purged  and  exa- 
mined ut  supra^  depones.  That  being  a  barber 
to  his  trade,  and  one  day  being  called  by  th/; 
paunel  to  the  prison  to  bhav e  him,  which  be 
thinks  was  upon  a  i!$aturday,  the  pannel  atked 
turn,  what  neus  he  heard  in  the  town?  To 
which  the  deponent  answered,  that  he  heard 


Trial  of  James  Stewartf 


[118 


that  he,  the  pannel,  was  to  be  carried  to  Edin- 
burgh on  the  Monday  following:  whereupon 
the  pannel  said,  Tliat  that  was  a  matter  gave 
him  ho  concern,  and  wished  it  hail  happened 
sooner,  and  was  afVaid  of  nothing  but  tnat  hia 
servants  might  be  enticed  to  take  money,  and 
turn  a^inftt  him ;  and  desire^  the  deponent,  as 
from  him,  to  tell  his  servants  to  say  nothing  but 
truth,  to  keep  their  minds  to  themselves,  and 
he  would  take  care  of  them ;  and  accordingly 
the  deponent  delivered  the  nannel's  message, 
in  his  own  words,  to  two  of  nis  servants,  wii'o 
were  then  in  separate  custody  in  the  same  pri* 
son  ;  and  that  they  were  botli  of  the  name  of 
Maccoll.  Depones,  that  at  this  time  the  pan- 
nel gave  the  deponent  a  shilling,  and  said, 
when  he  came  again  to  shave  him,  he  would 
give  him  more ;  out  that  he  never  got  more 
from  him  than  the  said  shilling.  Depones,  that 
from  the  pannel  he  went  to  his  son  Allan  also 
to  shave  him,  to  whom  he  told  the  commission 
his  father  had  given  to  be  delivered  to  the  ser- 
vants ;  and  the  said  Allan  gave  him  ba1f-a« 
crown.*  Causa  scienti^e  patet.  And  this  ia 
the  truth,  as  he  shall  answer  to  God  ;  and  de- 
pones he  cannot  write. 

(Signed)        J  a.  Ferguson. 

*  «  With  respect  to  this  deposition,  it  is  i» 
be  noted,  that,  after  it  was  finished,  the  pan- 
nel du-ected  the  following  question  to  be  put  to 
the  witness  by  the  Lord  Examinator,  viz.  How 
long  he  had  shaved  the  pannel  and  bit  son, 
before  he  received  the  above  named  shilling 
and  half-crown  ?  and  if  he  had  formerly  re- 
ceived any  payment  from  them  ?  In  answer  to 
which  Macclean  deposcil.  That  he  had  shaTed 
them  both  for  five  or  six  weeks  before,  nod 
never  received  any  money  but  the  said  shilling 
and  half-crown.  The  Lord  Examinator  said, 
he  did  not  think  it  was  necessary  to  make  this 
addition  to  the  deposition  ;  but  would  cause  it 
to  be  done,  in  case  the  pannel's  lawyers  insisted 
to  have  it  done.  To  w  hich  one  of  the  pannel'a 
lawyers  answered,  That,  seeing  the  jury  had 
heard  the  answer  of  the  \ulntss  (still  upon 
oath)  to  the  intenogatory  put  for  the  pannel, 
and  that  titc  judge  \\'u\  not  think  it  necessary 
to  be  added,  iie  did  nut  insist  for  it.  Now,  m 
the  first  place,  As  to  the  giving  of  this  shilling 
and  half-ciown  to  the  barber,  vas  there  noC 
good  r.'.*asuu  for  it ;  as  they  were  then  resting 
the  barber  for  several  weeks  shaving  ;  and  that 
he  depones  he  had  told  them  on  tiie  Saturday, 
they  were  to  be  transported  from  Fort- William 
to  Edinburgh  on  the  Monday  following?  In 
the  next  place,  As  ti>  the  commission  given  to 
the  barber,  (which,  by  the  by,  is  the  only  one; 
8<»  no  leabon  for  saying,  as  31  r.  Erskine  does, 
repeated  commissions);  it  consists  of  three 
particulars.  Fur  the  first,  To  tell  his  servants 
to  say  nothing  hut  the  truth.  Sure  no  good 
man  can  find  fault  with  this.  For  the  srcond. 
To  keep  their  minds  to  themselves.  This  is 
agreeable  to  the  declaration  of  the  estates  of 
the  kingdom  of  Scotland,  comprehending  the 
Claiaa  of  Right,  &c.  and  the  grie? auces  repre- 


jura 


TZniriJ    Ct*r^i*atil  fn  trp 


ftnd,  a/irr  o- 


frou 


ftl  Pulteney'i 

iivurrkili  \rH- 
;<-fJ  of  uinljce 
•   bceu  called 

iTiipr  flrposi- 
^vo 

luiiii^  lib  ex^iaihuition; 
kM  InuuWt?,  was  rc- 

■  \    .i:^:m-\  t     nji'l    liriniT'  SO- 

.„t-.^tr,ii;.,l.:-,   ,|,;|:in,rs,    That, 

July  last,  to  tlie  best  of 

r.mce,  he  was  sent  with 

-n"'--"nTtfr  wiih  hiro, 

'  BrcL'k  Mac- 

:  .*:  uc  ten   miles 

i  over  Lochleven  j 

lieir  gtiiiJe  carried 

I  of  ihe  JMi,  iiDd 

•  i]t  of  adift  iu  the 

t  bluck  coat  with 

irtrnin  tite  pocket, 

<    them  10  ihe 

jied  them  to 

dc]i>o(L(l  tuem  to  colonel 


tmtaf 
ItWoli 


»■'    -     -     --'    -■;   ■■■,  -  r'l     ♦"-  ;•  1{^,- 

not 

..i.«.  ....  ,.i^M  I'lMiile 

1^,   ill  rcltitiou  to  other 

:  «iie  tfiui!-    Vtnl  he  wouUl 


A.  Iu-ri1r.r- 


[  wit  If  iroii 


iwr»  Oil 

ton  r»tit#;}ail)  tiius 
iS,  llifUflt  taken 

Mtoi  fnnn  ' 
hwir.  iKnt  t 


nip  thnt 

n  to  lalie 

when,  con- 

M  been  for 

''<»n  lined 

tS  i!|fOII 

'-lit 
mt 


III    ij  1 1  d 

iu'  wan! 

-j.y    of  wit- 

I'jkW  n>;iil  to 

,  and  ll.f  tuf- 


htkf    rcalK     ., 
|fWiWiitArr 


ki.- 


II  (^  and 

utvd  for 

lUty  v%trt  Im^  servants  ; 
fnirn  iheir  actual  service, 
the  pannel's  ex- 
urujier  now,  when 
'     .\  to  Ih;  traas- 
,  to  let  them 
.'  I  -.-..  lo  lake  care  of 
Uter  nil,    if  any  tliin^j 
'    in    the    commis«iion 
i  er,   a»  tiicre  docs 
lit'  i;^  Ti  ^irn'ile'  ^^  li, - 


113^  %»i  the  bt*ivaiits 
U,  But,  for  reft' 
^re»,  Uiey  did  DOt 


Crawford.  Depones,  thnt  one  of  the  black  '< 
coats,  with  ihe  |io«der-horn  and  trowsers,  that 
11) e  deponent  took  out  of  the  pocket  as  ubo^e* 
mentioned,  are  the  some  thfit  his  guld^  deli- 
▼eretl  to  him,  and  which  heddivered  to  colonel 
Crawford,  as  ikbove  deponiHl.  Caum  ifcientim  < 
ptiUt.  And  (his  is  the  Iruib,  as  he  shall  an* 
s  wer  to  G  od .  (  Siffned) 

P.  Giurrr*  Thomas  Baird. 

The  Prosecutors  Proof  being  concluded,  Ihe 
PanncI,  for  his  exculpalton,  adduced  the  fol« 
lowing  Witnesses : 

Hugh  Steuari,  resideuter  in  Edinburgh, 
aged  30  and  upwards,  married,  being  sworni 
purged  and  examined  ui  supra,  depones,  Thai 
he  knows  Allan  Breck  Stewart  to  have  several 
times  gone  to  France,  and  returned  again  to 
this  country  ;  particularly  tliat  he  went  to 
France  in  1747,  and  returned  to  Scotland  in 
December  1749;  rel^iroeil  to  France  in  Ulay 
1751,  and  came  back  in  February  1752  ;  auii 
when  in  this  country^  he  was  in  use  to  lodge 
at  lite  deponent's  house  in  Edinburgh  :  that  he 
oi)^i  ved  him  to  be  afraid  to  be  seen  abroad, 
and  kept  at  home  in  the  day-time,  and  weul 
abroad  under  the  cloud  of  night;  for  which  he 
gave  Uiis  reason  to  the  deponent,  that  he  had 
been  a  soldier  iu  colojiel  Lee's  regiment,  from 
which  be  had  deserted,  and  was'  afraid  to  be 
dti>covercd.  And  being  tutarrogate,  depones^ 
that,  when  Allan  Breck  went  abroad,  as  has 
been  said,  in  May  175  U  he  owed  the  deponent 
a  guinea,  and,  bein*;  run  short  of  money,  he 
drei¥  a  bill  on  the  panriel  for  that  sum,  whereof  I 
be  acipiuiLiied  the  paunel  some  time  be  thinks 
in  July  i  8h-l  :  rrac  time  in  August  he  received* 
the  money  '  'I,  the  Appin  carrier;  and 

by  the  sau*  ^ent  the  paunel  tlie  bill 

upon  him.     Cix/^.vu  icUntU  paUt^     And  this  t« 
truth,  as  he  shall  answer  to  God. 
(Signed) 
J  A,  FEJtotJiON.  Hugh  Stewart. 

Duncan  Stewart  of  Glenbuckie,  aged   27 

vrnis.   unmairltd,   sworn,   purged  and   exa- 

\  depoues,   That   he  was  ac- 

Ulan  Breck  Stewart ;  and  tliat, 

ai  any  time,  wli^exi  he  came  from  France  to  Ihii 

country,  he  hail  no  fixed  residtrnce  to  the  de^ 

pouent  known,  but  went  about  amuniz^  his  friendi  < 

and  accjuaintances :  that  wbeu  he  cume  last  to 

8i'0tland,  lus  tlr^^^  was  a  long  ^ '  i  retl 

waistcoat,  Idack  bret'ctit^s,  and  .  liat: 

that,  iu  iMarch  UbI,  when  he  wus  u  ieil<  depo* 

nenl^s  hou^je,   he  war;  in  that  dresH ;  but,  at 

^.ii,...    v- 't^^   lie  hatf  seen   him  in  a  ili^erenl 

tiiiWIy  in   Apiil  Unit  at  (>leneuty,  . 

V .^j  the  lnj»l  time  he  -=   .v  Lim.  lii<  drese 

wns  a  bluek  short  coat,  ^^  m^,  a 

r<nt  III  ^rftist('oat,  liowsii;  ,  und, 

;icat  coat.  , 

upon  on»-  I, 

whtl<  liis  bouse,  Wmti  Uie 

first  1  r  svo  days,  to  the  de- 

poncj  \  wore  a  short  blue 

coat  J.  4ch  the  de|»0Qeiit,  al  i 


151] 


25  GEORGE  XL 


Trial  of  James  Stetoarif 


[15« 


his  c](»ire,  lert  bim ;  and  whether  he  wore  it 
any  more  than  two  days,  of  the  ten  days  be  at 
tliat  time  stayed  at  the  deponeot's  house,  the  de- 
poneot  docs  not  know,  not  having^  been  at  home 
all  the  time.  Causa  scientia  patet.  And  this 
is  truth,  as  be  shall  answer  to  God. 
(Signed) 
Ja.  Ferguson.  Dun.  Stewart. 

Duncan  Ferguson,  servant  to  Duncan  Stewart 
of  Glenbuckie,  a^ed  29,  unmarried,  sworn, 
purgfed  and  exammed  ut  snpra,  depones,  that, 
about  the  20th  of  April  last,  lie  saw  Allan 
Breck  Stewart  at  the  house  of  Branacbile, 
the  house  of  the  former  witness ;  at  which 
time  he  was  dressed  in  a  short  black  coat  with 
clear  white  buttons,  a  tartan  Test,  trowsers, 
tartan  hose,  and  bonnet.  Depones,  that  he 
stayed  there  two  nights,  and  went  from  thence, 
as  the  deponent  was  informed,  to  Glen6nlas, 
and  stayed  a  night  there.  Depones,  that  the 
deponent  also  saw  him  at  Glenbuckie's  house 
in  March  last,  at  which  time  he  was 
dressed  in  a  blue  coat,  red  vest,  and  feathered 
hat.  Causa  scieniuepaiet.  And  this  is  truth, 
as  he  shall  answer  to  God;  and  depones  he 
cannot  write.  (Signed) 

P.  Grant. 

Duncan  Stewart  in  Glenfinlas,  aged  32 
years,  married,  sworn,  pnrged  and  examined 
ut  supra,  depones,  that  one  night,  between  the 
20th  and  23d  of  April,  the  deponent  saw  Allan 
Breck  Stewart  at  Glenfinlas,  and  was  dressed 
in  a  black  short  coat  and  white  clear  buttons, 
trowsers,  and  a  bonnet,  and  had  ou  a  dun  big 
coat  above  the  short  coat.  Causa  scientia 
patet.  And  this  is  truth,  as  he  shall  answer  to 
God.  (Signed) 

P.  Grant.  Duncan  Stewart. 

Katharine  Macinnes,  late  serirant  to  Alex- 
ander Stewart  of  Ballachelish,  aged  22  years, 
■worn,  purged  and  examined  ut  supra,  by  i\lr. 
Archibald  Campbell  of  Stonefield,  sworn  inter- 
preter, depones,  that  in  the  evening  of  the  14th 
of  May  last,  the  deponent  saw  Allan  Breck 
Stewart  at  the  goat- house  in  the  moor  of  Balla- 
chelish aUer  Glenure  was  killed;  and  that 
Allan  Breck  then  asked  her,  what  was  the 
occasion  of  the  stir  in  the  town?  and  that  she 
told  him,  Glenure  was  murdered ;  and  further 
asked  her,  who  might  have  committed  the 
murder?  and  that  she  told  him  she  did  not 
know  ;  and  that  the  said  Allan  further  desired 
the  deponent  to  tell  Donald  Stewart  in  Balla- 
chelish to  ^o  to  the  pannel  and  desire  him  to 
■end  the  said  Allan  money  ;  and  that  she  deli- 
vered this  message  to  Donald  Stewart  that 
same  nii^ht.  Depones,  that  she  told  the  said 
Donald  Stewart  where  she  saw  Allan  Breck  ; 
but  that  she  did  not  tell  him  to  go  to  the  said 
Allan,  nor  did  he  desire  her.  Causa  scientia 
patei.  And  this  is  truth,  as  she  shall  an- 
swer to  God ;  and  depones  she  cannot  write. 
(Signed) 
P.  Grant.  Aboh.  Campbell. 

John  Stewart  younger  of  Ballacfaelitb,  aged 


SG,  unmarried,  sworn,  pnrged  and  examined 
ut  supra,  depones,  tliat,  the  day  after  the  mur- 
der of  Glenure,  the  deponent  was  at  the  pan- 
nePs  house,  who  after  12  o'clock  of  the  day, 
told  the  deponent,  that  he  had  had  a  message 
that  morning  from  Allan  Breck  by  Donud 
Stewart,  to  send  him  money ;  but  does  not  re- 
member, whether  the  pannel  told  him  the  place 
where  he  was  directed  to  send  it;  and  the  pan- 
nel told  the  deponent,  that  he  was  resolved  to 
send  him  money.  Depones,  that  the  last  day 
of  December  last,  the  deponent  was  in  company 
with  the  deceased  Glenure,  an  uncle  of  AnC* 
shiel's,  and  the  pannel,  and  Mr.  Campbdl  of 
Ballieveolan,  when,  after  the  company  bad 
drunk  very  hard,  and  were  all  drunk,  some 
high  worcis  arose  between  Glenure  and  Ard- 
shiePs  uncle,  and  they  were  like  to  come  to 
blows,  which  both  of  them  attempted ;  hot  the 
deponent  once  and  again  separated  them  :  that 
Ardshiel's  uncle  happenea  to  go  out  Of  the 
house,  as  did  also  the  pannel,  and  the  depo- 
nent called  to  the  people  without  not  to  lei 
them  in  again,  because  tbey  were  drunk :  that 
the  pannel  had  invited  Glenure  next  day  to  his 
house,  which  Glenure  had  accepted  of,  and 
therefore  the  pannel  pressed  to  come  in  again 
to  the  house  to  renew  the  invitation,  and  take 
his  leave  of  Glenure;  but  the  deponent  wooht 
not  allow  him  to  come  in,  and  undertook  to 
make  his  excuse  to  Glenure:  that  the  depo- 
nent, coming  into  the  house,  found  Glenure 
standing  with  a  drawn  hanger  in  bis  hand ;  and 
the  deponent  asked  what  he  meant  by  that? 
and  Glenure  answered.  That  he  should  not 
allow  him  to  be  mobbed  there ;  upon  which 
the  deponent  assured  him  he  should  not  be 
mobbed  there;  and  then  Glenure  threw  the 
hanger  upon  the  bed :  that  the  deponent  went 
home  with  the  pannel,  and  next  day  Glenare 
came  there  before  dinner,  and  dined,  and  iiiade 
apologies  mutually  for  what  passed  the  night 
before ;  and  that  Mr.  Campbell  of  Ballieveolan 
dined  there  also.  And  being  interrogate  for 
the  pursuers,  depones,  that  the  deponent  wti 
in  Edinburgh  in  August  last,  and  was  present 
at  consultations  of  the  pannel,  bis  lawyers  and 
agents  touching  his  defence.  Causa  scieniis 
patet.  And  this  is  truth  as  he  shall  answer 
to  God.  (Signed) 

P.  Grant.  John  Stewart. 

Alexander  Stewart  in  Auchindarrocb,  aged 
about  18,  unmarried,    witness   cited,  sworoy 
purged  and  examine<l  ut  supra,  by  Mr.  Archi- 
bald Campbell  of  Stonefiela,  sworn  interpreter, 
depones,  that,  to  the  best  of  his  knowledge,  he 
saw  Donald  Stewart  in  Ballachelish  and  tho 
pannel  together,  upon  the  marches  between 
Aucharn  and  Auchindarrocb,  in  the  morning 
of  the  15ih  of  May  ;   and  that  he  himself  wti 
at  the  time  digging  ground,  with  the  other 
tenants  of  the  town.     Causa  scientia  patet. 
And  this  ii  the  truth  as  he  shall  answer  to  God. 
(Signed) 
Arch.  Campibu..      Aux.  SrribWABT. 
P.Gbabt. 


A. 


iircrioGod* 


Sitmari  of  Batlacbdifih  elder, 
lltaM  CJittl,  sworn,  purged  and  examined  ut 
MM,  6epwi*»9,  llial  liitf  drpotierit  wus  witb 
Ainii  Qreck  Slevvart^s  father  a  cmiMderable 
ttaue  litlbrv  hi*  d^^nth  ;  fifit,  nf^er  he  huil  coii* 
trMAcd  tfae  H  T  he  died,  he 

mid  till*  ^»L  td  to  leiive  the 

csxeef  lib  ciiiidrei),  umj  ij  bis  .ilTmrs,  to  Ard* 
•W  iml  Uic  paotiel :  that  the  dcpouent  knuws 
lkaj«airdin|;ly  took  upon  them  fhe  maoag^e- 
VAU,  tbo«igb  he  hehere*  th<;  nomination  \vaii 
wff  f erhfti,  «nd  not  in  wriiioi^,  Ca asa  scicntia 
ftUi.  AxmI  this  is  the  truth,  as  he  shatl  an- 
(Signed) 

Alex,  Stewart- 

>^nt  in  Auchnacoan,  ig^ed 
witness    cite«J,    sworn, 
iipd    ut    iupra^    depones, 
lier^Ai  he  beliefes,  named 
tjiyr  to  hi»  children,    and 
r;  mud  the  cause  of  the  deponent's 
he  saw  the  pnnnel  lake  the 
Bl  (/  their  atfiiirs  upon  him.     Cauta 
patri.      And  thin  is  ihe  truth  as  be 
tftall  atfswer  to  God.         (Signed) 

I*.  O AAftT.  John  Stewart, 

J«Am  FtockMmri^  writer  in  Edlnburc^h,  {iged 
30  ami  ypwanls,  tPErried,  witness  cited,  sworn, 

EJ  an«]  eaLSmiiied  ut  supra^  depones,  that 
tliown  a  letkT  hy  the  pauuel  to  Mr.  John 
yrloiie,  writer  in  the  )iignet,  dated  the  19th 
«C  limy  h^t,  ffepoTtcs,  that  Ihiit  letter  came  to 
Ike  flr^fiov  I  4 1  Edinhiirgh  by  course 

ef^^OKl  tbt  ^  .  i\ty  last,  and  llie  deponent 

MB|(  lf»  Ctv  for  I'ltHi  next  da)%  he  gnve  the 
iHler  to  Alexander  Hart,  clerk  to  Mr.  Macfar- 
ham,  %»  kc  «t«literf<d  to  Iun  luMster  ;  ond  kuons 
aaC  irlwilMr  Muy  thing  \\as>  finne  by  Mr.  Mac- 
hrtiar^  |i«mttant  to  that  letter.  Cttusa  icieniia 
fdUI.  Afld  lht»  is  the  truth,  as  he  shull  ao- 
MtrlaCM.  (Signed) 

Jo.  Flockuart. 
Aflil  ifl^r  closing  the  oath,  heinj^  further  in- 
tani|fs4r  fi»r  the  pnnueU  depones,  That  there 
WM  IM^  olticr  letter  Bccompau^ing  the  one 
Wfaft^OHndkined,  And  this  is  also  truth,  as  be 
iliU  ^mm  mr  to  God .  (  Sig  u  ed) 
P.  Gkakt.  Jo.  Fuxkhaut, 

Jtkm  Ci»mnron  of  Htronfi  ai^eil  a 5,  married, 
vita^sa  CiMd,  aod  sworn  ut  iupru,  depmics, 
iWl,  aboiM  a  ye«r  ago,  beintf  in  company  ivitlt 
i^«  of  ibe  tetianl*  of  Kaunoeh,  in  a  house 
ii  EUiMKKh,  a  mait  came  unto  them,  whuru 
llffcalleil  serjrant  More  Cameron,  whom  ibe 
Aqisucgit  o^^er  «sn  l»»'rr»rr,  nor  <i>inc*e!  that  the 
iMDta  w«re  <*in  ne  for  his  ' 

hmi  iHi«e  of  i  Uel  ;    and  ' 

ftttiii  '  thtii  ir  lie  met  bim  ^ 

btli«  i  «4|joot  bmi.     Cama  i 

SBitfilmr  >^^irj.     rVuu  tiif»  IS  the  truth,  ai  he  I 
ilai  aavwcr  to  Go4«         (Stoned) 

P.Gjukt.  Juhm  Cameroh. 


Cafucrofii  aert ant  to  John  Cameron  of 

BlffMC,  ijfvd    SU  jrtars,   unmarried,   «rituess 

'  ifWmwmt  purftd  and  eAuuucd  »(  lupra^ 


by  Archibald  Campbell,  writcf  iu  Inverary^ 
sivorn  interpreter  foresaid,  depones,  that  he  baU 
occasion  to  be  in  Usoaoch  harvest  last :  that 
he  saw  there  a  man  that  v»as  cmIM  serjeant 
Mure  Cameron,  whom  he  never  saw  before,  or 
since.  Depones,  that  he  saw  the  man  cnlled 
Serjeant  Mure  in  a  bouse ;  but  does  not  know 
the  name  of  tbetuwu,  or  the  name  of  the  man 
to  i%bom  the  bouse  belonge<l,  the  deponent 
having  never  been  in  Ranutieh  bul  that  one 
time.  Depones,  that  he  beard  the  said  8er» 
jeant  More  say,  that,  il  he,  the  said  serjeant 
More,  met  witti  Gleuure»  be  did  not  care 
Ibou^b  he  should  he  up- sides  with  bim  ;  but 
bad  uo  reason  i'nr  saying  so,  he  batingf  heard 
no  more  of  his  rtiscoirrse.  Depones^  that  Iba 
depoueiit  wns  then  seri^stit  to  the  foruier  wit^ 
ness,  und  was  then  iu  Rarinocb  altetuUng  bitn 
Cuuita  $cienita  pattt.  And  this  is  the  truth,  r ' 
be  shall  answer  to  Got  I ;  and  deciares  be  cai 
not  write.  (Signed) 

P»  Grant.  Arcu.  Campbeix* 

Then   ibe  Procurators  for  the  Pannei   di 
dared  their  Probation  to  be  concludetl. 

Follows  the  WitrriNGs  proocfced  in  Eviocwd 

FOR  THE  PrOSECCTORS. 

The  Judicial  Declarations  of  the  Ponnel^  hii 
IFi/f,  and  Children, 

At  Fort-William,  the  2d  day  of  June  1752 
years,  in  presents  of  Georjje  Douglas,  sheriff- 
substitute  of  the  sheriffdom  of  Inverness, 
sitting  it)  judgraeot,  compeared  James  Sttrwart 
in  Aucharn,  now  prisoner  at  ibia  place ;  who 
being  judicially  examined  aneut  the  matter 
underwritten,  declares  judicially,  That  Allan 
Breck  Stewart  came  to  his  house  in  the  latter 
end  of  March,  upon  his  coming  from  France  ; 
that  be  stayed  two  nigbis  there,  when  the  de- 
clarant went  tit  Edinburgh,  leaving  the  said 
Allan  at  bis  hou!;e:  that  ibe  said  Allan  came  to 
the  declarant's  house  iu  the  mouth  of  April. 
aAer  being  at  Glenbuckie^s  and  Rannoch  ;  and 
that,  upon  Mimday  Ihe  lltb  day  uf  May  last, 
the  said  Allan  came  to  the  declarant's  house 
from  Fasnacloidi ;  and  ihe  declarant  being 
called!  upon  hy  Mr.  Campbell  of  Airds  to  go  to 
Keil,  had  little  coo»  erMatioti  with  the  said 
Allan  til)  bis  returu,  and  no  other  aller  bis  re- 
turn, than  wbat  was  iu  the  jiresence  of  tho 
family;  Nor  does  the  declaronl  remember, 
whether  be  supped  with  the  Bsid  Allan  that 
niifbl  or  not;  but  rather  thinks  he  did;  or 
whether  Ihe  s^id  Allan  ^ins  dressed  in  a  lon^ 
blue  coat  and  hat,  or  in  a  black  short  coal  with 
iiilver  Imtlous :  Tbat  the  declarant  thought 
bimtetf  concerned  in  drink  that  night,  havtog 
drunk  at  the  uuller  of  Keil's  bouse  with  the 
old  jU|>er,  the  y«»ouiy  r*iper»  llie  said  miller,  atid 
old  Duncan  Macrnmbicb,  tind  his  son  Archi- 
bald: tbe  declarant  »*^ut  away  to  Appia'f 
house  early  upon  Tuesday  the  12lh  day  of 
May  hiHi,  imd  did  not  &t  e  Allan  that  day  or 
since  :  that  when  the  ilrclarant  was  at  Edin- 
burgh, the  said  Allan  carried  a  short  black  com! 
with  sdver  buttoQS,  belonging  to  the  declarant| 


ia-,af?^ 


153]  25  GEORGE  II. 

with  liim  to  Glenbuckie's  and  Ilannoch,  and 
wore  it  upon  bis  retarn ;  wlien  the  declarant 
told  the  said  Allan,  that  be  wondered  how  his 
short  coat  fitted  him,  as  Allan  was  a  larffe  man, 
and  the  declarant  a  little  roan ;  to  which  he 
answered,  that  it  served  him  well  enough  : 
that,  upon  Monday  night  the  11th  day  of  31ay 
last,  the  declarant's  son  Charles  told  him,  he 
was  to  ^0  to  Glenco,  Callart,  and  Fort-Wil- 
liam ;  and  that  he  did  not  see  his  said  son  from 
that  night,  till  he  saw  him  in  this  place,  after 
that  he,  the  decUrant,  was  made  prisoner ;  nor 
is  the  declarant  sure  if  his  saiil  son  went  to 
Glenco  or  Callart  till  Wednesday  the  IStli  day 
of  May  last.     Declares  also,  ihat  his  son  Allan 
was  at  home  on  Sunday's  night  the  lOlh  of 
May  last ;  but  is  not  sure  whether  he  was  at 
home  all  that  day  or  not.    That  there  were 
no  strangers  at  the  declarant's  house  upon  the 
said  Sunday's  night,  or  on  the  following  Mon- 
day or  Monday's  night,  nor  yet  on  the  Tues- 
day or  Tuesday's  night  following,  except  the 
said  Allan  Breck  and  Fasnacloich's  daughter 
upon  the   said    Monday's  night.      Declares, 
that  John  Stewart  younger   of  Ballachelish 
was  at  his  house  upon  W^nesday's  night,  and 
is  sure  that  Ewan  Roy  MaccoU,  brother  to 
Appin's  bouman  at  Koalisnacoan,  supped  at 
bis,  the  declarant's  bouse,  either  upon  the 
Wednesday  or  Thunday's  night  the  ISth  or 
14th  days^of  May  last;   and  that  the  said 
Ewan  Roy  Maccofl  was  also  at  the  declarant's 
bouse  upon  Saturday  thereafter,  in  the  fore- 
noon, along  with  his  sister,  spouse  to  Ewan 
Maccombicn.  padler  in  Cull,  and  then  paid  the 
declarant  lot.  Scots,  except  seven  shillings  and 
two- pence,  for  which  the  said  Ewan  Macoom- 
bich,  padler,  became  debitor;  which  10/.  Scots 
was  in  pavment  of  the  grass-meal  of  cattle ; 
and  that  trie  said  Ewan  Roy  Maccoll  did  then 
p;ive  to  the  declarant  a  list  of  debts  due  to  him 
m  the  country,  whereof  20/.  Scots  was  to  be 
applied  towards  payment  of  a  debt  due  by  the 
said  Ewan  to  his  said  sister,  as  the  declarant 
bad  the  management  of  her  effects  in  the 
country  of  Appin  ;  and  which  sister's  nornc  is 
Christian  Maccoll,  and  was  last  winter  servitrix 
to  Mr.  Stewart  of  Ballacliallan  :  that  the  de- 
clarant delivered  some  cattle  to  Duncan  Stewart, 
servitor  to  Glcobuokie,  and  Solomon  Maccoll, 
servitor  to  the  declarant's  son  Allan  Stewart, 
and  John  Maccoll,  now  prisoner  at  Fort-Wil- 
liam,  at  tlie  marclies  betwixt  Aucharn  and  Sal- 
lachan ;  and  that  the  said  Ewan  Roy  Maccoll 
was  to  meet  them  at  Glendurqr  with*  cattle  of 
bis  own  that  were  to  be  sent  south  along  with 
the  declarant's  ;  and  that  the  said  John  Mac- 
coll parted  with  them  at  a  shealing  called  the 
Immcrin ;  and  that  the  declarant  did  not  see 
the  said  Ewan  Roy  Maccoll  since.    And  being 
interrogate,  if  he  nad  any  arms  in  his  house^? 
declares,  that  when  he  was  made  prisoner,  he 
bad  a  small  fowling-piece  and  a  broad-sword, 
which  broad  sword  was  to  be  kept  for  the  chil- 
dren of  the  deceased  Allan  Stewart  of  Cuil,  till 
.they  were  of  age.    Declares  alio,  that  the  said 
Sq&uuui  HbccoUi  fotaodly  aer? ant  to  DooaM 


2V/tf/  tif  James  Stcwartf 


[156 


Stewart  at  I'ayharnan,  came  home  to  his  ser- 
vice on  the  15th  or  16th  days  of  May  last: 
that  John  Stewart  in  Auchnacoan  came  to  the 
declarant's  house  upon  the  evening  of  the  14tb 
day  of  May  last,  and  stayed  there  that  night ; 
and  deciare<«,  that  he  did  not  send  him  any 
message,  either  that  day  or  the  preceding  day, 
nor  had  he  any  business  that  the  declarant 
knows  of.  Declares  also,  that  the  af\emoon  of 
Glenure's  murder,  several  of  the  tenants  in  the 
neighbourhood,  particularly  the  tenants  of 
Auchindarroch,  and  Duncan  Stewart  at  In- 
shaig,  and  Robert  Stewart  the  miller,  came  to 
the  declarant,  to  know  what  they  should  do,  or 
whether  they  should  go  near  the  corpse ;  and 
that  he  advised  them  to  go ;  but  that  neither  be 
nor  his  son  Allan  went  there,  because  he  un- 
derstood that  Ballieveolan  and  his  sons  were  lo 
be  there;  and  that  there  were  some  cliagrine 
lietwixt  him  and  them,  they  having  taken  the 
declarant's  possession  the  year  before,  wherein 
he  had  a  stock  of  cattle,  viz.  Glenduror,  a  part 
of  the  estate  of  Ardshiel :  that  when  youiup 
Ballachelish  was  over-night  at  the  declarant^ 
house  as  aforesaid,  they  had  a  conversation 
about  the  removal  of  the  tenants  from  the 
estate  of  Ardshiel ;  the  result  of  which  was, 
that  they  should  continue  their  possession,  and 
take  the  hazard  of  the  violent  profits,  unless 
they  were  forced  out ;  and  that  he  had  conver- 
sations with  old  Ballachelish  to  the  saiae 
purpose ;  and  that  he  g^ve  tlie  same  opiuion  to 
such  of  the  said  tenants  as  applied  to  him ; 
but  recommended  to  them  to  use  no  force  in 
keeping  their  possessions ;  that  the  dechirant 
had  no  written,  but  a  verlKil  commission  Iroqi 
the  said  tenants,  to  negociate  for  them  at  law ; 
nor  did  he  receive  any  money  from  thf  m  ;  but 
that  the  tenants  of  Lettermore  and  Ardshiel  and 
the  miller  promised  to  refund  his  expences  for 
representing  their  case,  particularly  Dugald 
and  John  Maccombicks  in  Ardshiel.  And 
being  interrogate,  if  he  had  any  conversation 
with  the  said  Allan  Breck  concerning  Glenoref 
the  said  Allan  asked  the  declarant,  if  be  heard 
that  Serjeant  More  was  come  from  France,  or 
if  he  was  in  the  couutry  of  Appin  ?  To  which 
the  declarant  answered,  that  he  did  not  hear 
he  was  in  Appin,  but  heard  he  was  in  Glenlive 
last  year ;  whereupon  the  said  Allan  told  the 
declarant,  that  serjeant  More  swore  he  woold 
kill  Glenure,  because  of  the  treatment  he  gara 
the  tenants  on  the  estate  of  Mamore,  |)art  of 
Lochiel  estate.  Declares  also.  That  the  aaid 
Allan  Breck  threatened,  that  he  would  chal- 
lenge BalUoveolan  and  his  sons  to  fight* 
whenever  he  met  them,  because  of  his  re- 
moving the  declarant  last  year  from  Glendu- 
ror, and  being  about  to  remove  the  otlier  te- 
nants this  year  from  some  other  parts  of  the 
estate  of  Ardshiel;  and  that  the  declarant 
told  him  then,  they  would  not  tight  him,  as 
they  would  not  consider  him  as  their  equal ; 
and  if  be  bad  come  to  the  country  to  ^ht,  ha 
had  better  stayed  in  Francer  And  being  in- 
terrogate, if  be  had  any  conversation  with  Wil- 
lium  Stewart,  msrohiUKt  in  Uarybargh?  de- 


At 


for  Murder. 
Ii4«l^  nhoul  tlie  expediency  of  the  9B.u\ 

klU     lIiHr    ItrrriiinLi'    ttnlr    i«ns^cssit>nS  J  and 

' pinion,  that 

us  ;   and  that 

'i.entcd  to  the  barons  df 

.  was  hard  they  should 

<  4Mil,    utitti  iheir    cane  was   ststeiL 

fi«1^H,  if  l»i*  fiad  any  convcvsftUoti 

'  ?    declares, 

cf»Tiimonly 

'    cid  he- 

Muc\  ? 

till  the 

I'tgpi^ajf,     1  !  hefoffe 

"■   '     'lii  ,,.,  .  ..1^   i.iie  foi^- 

r  tlie»e  N  ,  '..'0  Ion  el  Huwanl, 

^fttrrl.  1  impbell  ot"  Airds, 

bin,  esqra, 

James  Stewart. 
George  DotCLAs,  S.  8. 


A.  D.  lltA 


[I5S 


^F  ' 

^  being 

^B" 

reco!- 

^MPi 

:ib 

ijt 

^^B^Mjp, 

-vKiie- 

^^Ki 

•tccla- 

^^B^l' 

».  ...^y 

^^^Karmi 

.:..-  "-- ^  '     -■■G 

^^^■M> 

1  Afrpia  proposed 

^^^^^^KlbO(3 ' ' 

r^Tn  in  Innd  :  tbtit 

^KoTth' 

c  heard   of  Glennre's 

^^it  ir 

-   mind,  Ihnt  ^vrjratit 

^■■■i 

iuae  Allan  Brct'k  totd 

^^PFx 

r  9Wr»rp  hjoody  rr  Ttitg-e 

^Hkuhui^v 

foiL  !i               it  catnefrom 

^Bv,  UfMfi  ftccfiutit  "                  H  treatment 

l^tftd-j'. 

'    IV  kh 

J'lWC^ 

chlel: 

3^|llMr«*'T    ir.iKi^c  vr.t^n|.   ir.:                                   AHaU 

^■k  afunriirds 

was,  been                  i>.  the 

PPinfr  ...->'•.., 

ritl^n„f   •oliii^    ,..;,.    uf    him. 

uhtPSj 

1  Allan  was  puilty 
^  it  behofeil  to  b*; 

iriu«L 

•«  acsPMri  ni  ttte 

given  to  thete- 

Mia  Lf  rhr  c>':i'i 

1^  and  knows  no 

^V 

htj  did    set    out    for 

^^^^_^' 

5d  day  of  April  latt» 

^^^^^H^ 

t,  the4rh  allnoerken- 

^^^^^^^K  1 

iha  6\U  at  Ann  at,  and 

^^^^^^^Kv 

nd  was  that  nigtii 
oil's  honwe  at  St. 

^^^^^^^K|' 

Ig'ota 

^^^^^H^^_ 

.icrief. 

^^^^^^ 

,  ...lied  at 

^^^K- 

jll,  flud  WAS 

^^^^^ 

,.'.     hn.„^, 

':Mf? 

tie  of 

^^^^^^^E 

ur^^m 

uoday  Illy  19ti«p  VY4&  tUut  cii^hl 
2 


at  Danivan,  called  at  Wr,  Wilaot^s  and  Mr. 
Wordie's  and  was  at  Hiirling  at  nigfht ;  which 
pfacc  hp  left  on  the  21st;  called  at  Mr.  Dun- 
das  of  Manner's  house,  Dunblainnnd  Newion» 
and  was  at  Annates  at  night  ;  tjpon  the  TId 
catne  to  HallachaUao's,  and  stayed  there  that 
niirlii;  came  to  GtenbtickteSi  the  93d,  and 
stayed  there  two  nights ;  on  the  25ih  came  ta 
Tuyindronn ;  on  the  26th  carne  lo  0nncan 
8te\Tart's  house  inGlenco  ;  and  iipnn  the  27 ih  * 
came  liorae :  that,  upon  the  ^5th,  he  calk'd  at 
Mr.  ftfurmy  of  Grenkemtrck  :  Tliat,  soun 
after  the  declarant  came  hofHe,  he  gntm 
notice  to  the  tenants  of  Ardshif  I,  that  he  Jiad 
procured  a  Rjgt  for  them  against  the  decreet 
of  removing- ;  and  that,  if  they  had  a  mind 
ti>  continue  their  posi^essjons,  tW}*  «vere  ad< 
viaed  to  ^o  lo  Ck^niire  and  fivei  their  po«- 
aeasians,  and  if  did  not  grant  their  flesiie,  thejr 
should  tend  for  a  notary,  and  go  with  him  to 
protect  ai^inst  G tenure ;  and  if  they  fijcns«ii 
he  wauld  send  h>r  a  notary;  to  which  they 
»0f€ed ;  that  accordingly  ihe  declarani  sent 
for  Charles  Stewart,  notary,  and  writ  him  a 
leltpr,  sigtiifving  ih^y  had  obtained  a  mt  for 
the  tenants  of  the  estate  of  Ardshiel,  and  de- 
Kired  him  to  come  to  intimate  Ihe  same  to 
Glonurc,  to  the  purpose  above-mentioned  ;  aod 
that  the  f^aid  Churle§  did  accoidingly  come  to 
the  derh'-'"''^  house  at  night,  and  the  tenants 
r;«nif  rning  ;  and  that  the  d<?clnrant 

UfUi  lUi:  .  ,  .  ,  -:3L'nre  oi'the  aaid  Charles,  that, 
if  it  was  not  their  mind  to  proceed  in  that  me- 
thod, he  would  not  desire  tham  to  do  it,  beoiiuse 
he  could  not  assure  them  ofsnccesa ;  and  Ihnt 
now  they  had  the  advice  as  it  was  gifen  to 
him  t  sod  particnlarly  rcnjeoihers,  that  three  of 
th I*  tenants  of  Aidshii?!  met  the  notary  at  the 
d**Cl«nint's  house,  but  is  not  sure  if  old  John  * 
Coftpihoun.  thf  foonb  tenant  in  Ardshiel,  waa 
thcT?,  hut  rnihcr  helievt«  he  wa«! :  that  he  wia 
informed  on  fVlomlay  the  11th  day  of  May  liat^ 
tty  his  smi  ChaKej*,  Altan  Breck,  and  Fasna- 
cioichN  daughter,  that  they  heard  G tenure 
was  to  qo  to  Lochaber  that  day.  Declares, 
aJso,  that  he  saw  James  Htetvuft,  younger  of 
FasuMcloich,  at  Glenr^V  ]^riu^r  upon  the  5lh 
dayof  I^Iay  last,  wh*'  ■  "hat  he  had 

done  at  Ethnburgh  T  :  mt  told  him, 

he  bad  procured  a  s\st  for  the  tertanls  of  Ard- 
sfaiel's  estate  ;  and  that  he  did  not  know  what 
service  it  might  be  ot*  but  that  some  people 
thought  they  might  fit,  and  take  the  hnzard  of 
the  violent  profits,  till  they  had  nu  oppoi-ttuiity 
of  l.iyinp  their  case  feetbre  the  hnroni  of  I'l* 
chet[Mer:   that  at  this  time  the  il    '  tuhl 

tlie  said  James  Steirart,  tli.U  hr  lue 

personsof  underslnndiuij  were  pi' -^' "i  <.»  <h» 
term*d»y,  lo  see  it  theie  u»<  law  for  e)f*c|ifi|{ 
them;  and  naked  the  snid  Jjmr'-  ii  Iw  tia*  |,| 
be  iu  Durnr  about  that  tuud  *  ,  liu 

did  fjot  l.ivAf  :  that  wIh  11  'h*    ^' >  ■  w 

j:t  lidi«th  wn 

h'  ,l,iffuM^ 

tellAUtti,    tu 

them  out  ?  v, 

to  liifvrtry.    Di^biv*  ul^,  that  i«i  giiUdA- , 


159]  25  GEORGE  II. 

he  recommended  to  every  body  not  to  make 
anv  disturbance,  and  particularly  recommended 
to  his  own  servants  not  to  be  present,  not  know- 
ing what  might  happen  if  a  mob  of  people 
gathered  ;  nor  did  he  intend  to  be  present  him- 
self. This  declaration  is  emitted  judicially, 
place  and  date  foresaid,  before  these  witnesses, 
colonel  Howard,  Donald  Campbell  of  Airds, 
and  Colin  Campbell  of  Carwhin,  esqrs. 

Witnesses,  (Signed) 

G.  Howard.  James  Stewart. 

Donald  Campbell.  George  Douglas,  S.  S. 
Co.  Campbell. 

At  Mary  burgh,  the  dd  day  of  June  1753 
years,  in  presence  of  the  said  sheriflf-substitute, 
compeared  the  said  Jamet  Stewart^  who,  after 
having  his  former  declarations  fully  read,  re- 
collects, that  he  was  not  a  night  at  Annat,  but 
called  there  on  his  way  to  Edinburgh,  and  so 
was  a  day  sooner  there  than  what's  mentioned 
in  his  former  declaration.  And  being  interro- 
gate, if  Allan  Brcck,  the  declarant's  son 
Cliarles,  or  Fasuacloich's  daughter  told  him, 
when  she  came  to  his  house  upon  Monday 
the  11th  day  of  May  last,  that  Glenure  had 
got  the  said  sist  removed  ?  Declares,  they  did 
not;  but  that  one  of  them  told  him,  he  heard 
Glenure  was  to  remove  the  tenants  of  Ardsbiel, 
but  which  of  them  said  so,  be  does  not  remem- 
ber. This  declaration  emitted,  place  and  date 
foresaid,  before  the  said  Donald  Campbell  of 
Aird^  and  Colin  Campbell  of  Carwhin,  esqrs. 

Witnesses,  (Signed) 

Donald  Campbell.       James  Stewart. 
Co.  Campbell.  George  Douglas,  S.  S. 

At  Marybnrgh,  the  3d  day  of  June  1759 
years,  in  presence  of  the  said  George  Douglas, 
sheriflf-substitute  of  the  shire  of  Inverness,  com- 
peared Allan  Stewart  son  to  James  Stewart  in 
Aucharn ;  who,  being  examined  judicially,  de- 
clares, Thati  Allan  Breck  Stewart  came  to 
tlie  declarant's  father's  house  on  Monday's  af- 
ternoon, the  1  lib  day  of  May  last,  dressed  in  a 
long  blue  coat,  red  waistcoat,  black  breeches, 
tartan-hose,  and  a  hat ;  and  after  being  some 
lime  there,  did  put  off  his  blue  cttat  and  waist- 
coat, and  put  on  a  black  short  coat  with  silver 
buttons,  belonging  to  the  declarant's  father ; 
and  went  that  afternoon  to  work  with  the  de- 
clarant's father's  servants  in  covering  potatoes : 
that  the  said  Allan  Breck  stuid  that  ni^ht,  and 
was  dressed  next  morning  in  his  blue  coat  and 
red  waistcoat,!  as  the  day  before :  that  the  de- 
clarant did  not  see  him  go  away  from  Aucharn 
upon  the  12th,  the  declarant  being  in  the  fields 
from  the  time  he  rose  in  the  morning  till  twelve 
of  the  clock  thpt  forenoou,  sowing  barley,  ex- 
cept once  that  he  made  a  start  home  for  more 
bear.  Declares,  That  upon  the  af^rnoon  that 
the  said  Allan  Breck  came  to  Aucharn,  as 
aforesaid,  he  told  the  declarant,  that  he  heard 
in  Glencrearen,  that  the  tenants  \i  ho  hatl  taken 
the  lands  of  Ardshiel  were  to  be  at  Glenduror 
on  Thursday's  night,  in  order  to  enter  to  the 
postesuon  on  Friday  the  15tb  day  of  May  last; 
Md  told  him  likewise,  thai  he  heard  GlcDore 


Trial  of  James  Stemartf 


[160 


had  come  home,  and  had  orders  to  remove  the 
former  possessors:  that  Archibald  Cameron, 
cousin  to  Drumnasailly,  came  along  with  Fas- 
nacloich's  daughter,  and  the  declarant's  brother 
Charles,  to  his  father's  bouse,  upon  the  sud 
11th  day  of  May  last,  and  staid  all  night;  the 
said  Allan  Breck  having  come  by  himself  aboot 
two  of  the  clock  in  the  afternoon*  that  day : 
that  the  declarant's  father  convetaed  with  tie 
said  Allan  Breck  aside,  upon  his  firtt  arrml 
at  Aucharn  upon  the  said  11th  day  of  May; 
but  that  the  conversation  did  not  last  above 
five  minutes,  or  thereabouts ;  nor  did  the  d^ 
clarant  hear  what  passed :  that  the  declarant^ 
father  did  not  appear  to  be  the  least  in  drink 
upon  his  coming  home  upon  the  evening  the 
Monday  aforesaid,  but  told  that  Mr.  Campbell 
of  AirJs  had  given  the  declarant's  father,  and  ; 
the  tenants  of  Keil,  three  or  four  bottles  ef 
whisky ;  and  that  the  declarant's  father  anppsd 
at  home  along  with  the  said  Allan  Brack 
that  night :  that,  upon  Tuesday  afternoon  the 
13th  of  Mav  last,  the  declarant,  and  the 
said  Archibald  Cameron,  and  Donald  Mae* 
donald,  brother  to  Glenco,  went  to  the  isle  of 
Bailieniigowan ;  and  the  declarant,  and  tbenU 
Donald  Macdonald,  returned  in  the  evening  to 
Aucharn;  but  the  said  Archibald  CamerM 
went  to  his  aunt's  at  Cuil :  that  in  the 


of  the  13th  of  May  last,  the  declarant  wentto 
Sallaohan,  where  he  saw  John  More  Madh 
chatten,  and  delivered  them  a  mare  and  a  fiHyt   < 
and  then  returned  home ;  and  in  the  atlenMNa 
of  that  day  went  to  Kintalline,  in  order  to  goto   * 
Tayphinst;   but  being  informed    by    Doodi 
Mackendrick,  the  old  piper  at  Keil,  whoa  hi 
met  there,  that  young  Ballachelish  was  to  b 
at  Aucharn  that  night,  the  declarant  rctWMi 
with  the  said  piper,  and  went  along  whh  \m 
to  the  moss:    that  accordingly   BallaebcWi 
younger  came  to,  and  staid  at  the  declaraat^ 
father's  house  that  night,  and  went  next  dav  li 
Apnin's  house :  that  the  said  Ewan  Roy  Hsc- 
coll,  brother  Co  Appin's  bouman  at  Koalisai- 
coan,  wrought  at  the  declarant's  father's  peal* 
moss  upon  the  said  13tli  of  May  last,  and  jap- 
ped at  the  declarant's  father's  house  that  nim 
and  believes  he  took  his  bed  with  Duncan  Nae" 
coll,  his  uncle's  sou,  at  Auchindarroch  tbiK 
night :    that,  upon  the  1 1th  of  May  in  the 
morning,  the  declarant  went  up  to  rreichii^ 
and  returned  by  the  houses  of  Glenduror,  utaa 
he  saw  two  women,  and  spoke  with  one  if 
them,  to  hinder  the  cattle  to  trespass  on  hii  ftp 
ther's  grounds ;    and  whilst  the  declarant  m 
speaking  to  that  woman,  he  saw  a  man  yawiig  ^ 
at  a  litUe  distance,    who  was  enqainng  M  ^ 
Glenure,  as  the  said  woman  told  the  declariltl  jj 
which   man  the  decUirant  thereafter  obacrrcl  j| 
travelling  on  the  road  towards  Auchindarroch:  sm 
that  the  declarant  came  ••«»•»•«*  hnm^  Ana  P 
Glenduror,  and  continued 
to  Inshaig,  along  with  his 
Fasnacloich's  daughter,  and  continued  tbM'J 
till  the  news  of  Glenure's  murder  reached  Ml ;  I 
father's  house,  where  he  heard  the  finl  M-   i 
counu  of  it,  Glenure'i  eenrant  being  jiiilgaa%  i 


ma  mwaras  Aiicnmaanocni  ^ 

came  straight  home  ftoH  * 

uinued  at  home  till  he  wMl  $ 

riih  his  brother  Cbarlee  oi  ¥ 


Jot  Murder. 

cUrant  wu  iDformed :  that  the  decla- 
at  home  all  day  the  15th  of  said  May  ; 
t  be  made  a  start  to  Cuil,  where  he 
onpany  with  Duocan  Stewart  senior, 
■can  Stewart  younger,  his  son,  and 

Stewart  at  loshaigf.  And  bein^  tn- 
e,  what  coDTersation    passed  betwixt 

Ua  father,  on  his  return  home  from 
f  bis, father  told  him,  That  Glen ure's 
Ma  there;  and  upon  the  declarant's 
ttkiojif  his  news,  he  told  him  the  worst 
r  be  had ;  that  his  master  was  killed  at 
Hw ;  and  that  his  father  asked,  if  it  was 
t;  ami  that  the  senrani  answered,  that  it 
nI  that  the  said  servant  also  desired  his 
I  go  and  take  care  of  the  corpse ;  which 
Mcd  to  do,  but  that  his  wife  would  not 
I  .  but  that  he  sent  for  the  tenants  of 
tafTOcb,  anil  desired  them  to  ^o  to  take 
be  eoqise  ;  and  that  the  reason  that  be, 
karaat,  did  not  ffo  to  take  care  of  the 
was,  because  it  did  not  at  tirst  occur  to 
nd  that  it  was  too  late,  and  the  rest  of 
pJe  ffVHie;  yet  it  was  clear  day  light, 
lbs  ibe  aun  w  as  Sf  t ;  and  that  the  decla- 
laiber  also  hindered  his  going,  and  as- 
br  a  reason,  that  if  the  friends  of  the 
I  were  there,  and  had  arms,  they 
n  their  passion,  do  hurl  to  him  and  his 

Mid  that  he  was  but  a  little  time  at 
fkcr  his  return  from  lushaig,  when  he 
anre'a  aerrant  returning  from  Glendo- 
I  paaainflf  towards  Kintalline :  that  the 
It  thiDka  his  brother  Charles  went  in 
mooD  of  the  14th  of  May  last  with  Fas- 
I'a  daughter,  and  the  said  Archibald 
««  and  the  declarant's  sister,  to  Lagna- 
ere  they  dined  in  Alexander  Stewart 
m  hvuae,  and  afterwards  came  back  to 
a,  aod  then  went  to  Inshaig  as  aforesaid. 
9^  that  be  heard  the  said  Ewan  Roy 
1  say,  upon  the  ISth,  two  several  times, 

waa  bard  in  Glenure  to  turn  out  the 
Imaols  of  the  Ardshiel  estate,  as  they 
nr  rents  Hell,and  offered  an  au^menta- 
rcol,  and  nere  willing  to  give  obedience 
government ;  and  that  one  of  the  times 
vr  breakfast,  when  the  people  were  to - 

at. the  end  of  the  declarant's  father's 
going  to  the  mc»Ks  ;  but  that  his  father 
t  pfesent:  that  some  of  the  tenants  of 
glibourhood  were  there,  as  well  as  his 
t  servants ;  aod  that  they  generally  talk- 
ie same  strain  niih  the  said  Ewan  Mac- 
id  that  the  other  time  tvas  after  their  re- 
;  from  their  woik  that  evening  ai  thede- 
's  father's  house:  thai  the  declarant 
Bt  know  what  been  '.e  of  the  said  Ewan 
lacctdl  all  Thursiiay  said  14th  ot  May 
ml  i«  positive  that  he  came  int(»  the  barn 
the  declarant  was  King,  that  same  night, 
twelve  of  the  clock,  asking  for  a  bed, 
was  ret UMfd  him ;  but  ordered  to  go  and 
I  ihe  servants  ni  anoih*-rharn  in  Ancliarn, 
U  Dougal  and  J<dm  Maccolls,  now  pri- 
st Ktirf  .William :  that  the  declarant  saw 
A  Kwaa  Boy  BUecoll  at  Aucharo,  upon 
^  XIX. 


A.  D.  1752. 


[162 


the  15tb  of  May  in  the  morning,  and  saw  him 
again  at  Cuil  about  twelve  of  the  clock  that 
day ;  and  that  they  came  together  from  thence 
to  Aucham,  where  they  parted,  and  that  the 
declarant  does  not  remember  if  they  had  any 
conversation  all  that  time  about  Glenure's 
murder.  This  emitted  judicially,  place  and 
date  foresaid,  before  these  witnesses,  Donald 
Campbell  of  Airds,  and  Colin  Campbell  of 
Carwhin. 

W  i  tnesses  (Signed) 

Donald  Campbeix.       Allan  Stewart. 
Co.  Campbell.  George  Douglas,  S.  B* 

Eodem  die^   The  said  Allan  Stewart  being   > 
re-examined  judicially,  and  being  interrogate 
whom  he  suspected  guilty  of  Glenure's  mur- 
der?   declares,     That  he  thought,    if   Allao 
Breck  did  not  soon  cast  up  in  the  country,  bt 
was  the  most  likely  roan  to  have  done  it:  and 
further  declares.    That,  in  a  converBatk>n  be- 
tween him  and  his  father,  and  others,  they 
were  of  opinion,  that  the  people  o>f  Ballache- 
lish  and  Lettermore  must  have  known  who 
committed  the  murder  at  the  time  it  happened : 
that,  u|ion  the  Friday  after  the  murder  liap- 
pened,  he  beard  his  father   tay,    he  did  not 
doubt  but  he  would  be  taken  up  upon  suspir 
cionof  the  said  murder:  that  when  the  de- 
clarant's father  was  at  Edinburgh,  he  expected 
a  letter  from  him  about  what  he  was  doing 
about  the  removings;  which  letter  oame  to 
Aucharn  in  the  declarant's  absence,  and  waa 
opened  by  James  Stewart  younger  of  Fasna* 
cloich,  and  contained  an  account  of  what  the 
declarant's  father  had  done  about  the  remov- 
ings; and  that  he  was  about  buying  a  bar- 
gain of  meal.     Declares  also,    That  he  heard 
his  father  express  his  desire  to  young  Ballache- 
lish  to  be  present  when  the  nei"'  tenants  came 
to  take  possession  of  the  estate  of  Ardshiel ; 
and  that  Donald  Mackintyre  in  Aucharn  told 
him,  that  young  Ballachelish  had  come  back 
from  ^ppin  to  Keil,  in  order  to  attend ;  but, 
upon  hearing  of  Glenure's  murder,  returned  to 
Appin  :  that  the  declarant's  father  told  him  ho 
would  not  be  present  at  the  entering  of  the  said 
new  tenants;  nor  was  the  declarant  resolveit 
to  be  present  himself;  nor  did  his  hither  de- 
sire him  to  go,  or  suspect  him  such  a  fool  as  to 
go :  that  he  knows  that  the  said  Allan  Breck 
Stewart     lay    with    the    declarant's   brother 
Charles  in  a  bam  in   Aucharn,    upon    I^Jon« 
day's  night  the  11th  day  of  May  last:  that  the 
declarant  has  a  bluck  short  coat,  with    nine 
round  silver  buttons  on  the  bren^t,  two  upon 
e»ch  haunch,  whereof  one  is  shihII,  and  it  has 
no  buttons  on  the  slcevfs  or  ptickets;  and  that 
his  father  has  also  a  black  short  coat,    with 
silver  buttons  on  the  breast  and  pockets,  and 
has  none  upon  the  haunches  or  sleeves,  to  the 
fieclarant's  remembrance:  that  the  said  Allan 
Breck  bad  no  big  coat  on  upon  ihe  lltli  day  of 
M.ty  last,  when  he  came  to  Aucharn,  nor  nad 
he  any  big  coat  of  his  own  that  the  declarant 
knows  of ;  for  the  said  Allan  borrowed  the  de- 
clarant's big  coat,  when  he  came  to  Rannochs 
M 


159]  95  GEO! 

be  recainmendeil  lo  t 

to  nis  own  h,' 
iiig   wlint   tn   , 
g^albered  ;  nor  <i» 
telf.    This*  ilecli 
place  ant!  dale  1'" 
colonel   f{f>war*L 

and  CoHu  Camiibdl  yt  Lur'*  tin  •-» 
Witnesses «  {ik/m^^ 

G.  Howard.  ^ 

PoNALD  Campbell,      ' 
Co.  Cami'Dell. 

At  Marvburgli.  llie  f^ 
y earti  i  n  (» reseii  ce  of  t  i " 
compearid  the  smd  Jf^  -^^  ^* 

having  his  fbtraer  ilt-cinrs*' 
coSlccls,  that  lie  was  not  o  i 
culled  there  on  his  way  t«» 
was  a  d^y  Booner  there  Uiim' 
ia  liif;  tormer  declaration, 
gttici    if    AUin    Breck,    n 
Churles^  or   FasDacldchV  •!    y 
whtu  she  came   to  liis  Uoum 
the    lUh  day  of  May  Uai,  ihn< 
got  the  said  sist  removed  ? 
not  J   but  that  one  of  them 
Gienore  was  to  remove  llu 
but  which  ofthera  said  ^o,  i 
ber ♦    T h  is  d eel aration  c in  i  I 
foresaid,  before  the  eaid   I 
Airds.  and  Colin  Campbell 

(VttnesseB, 
Do.HALD  Campbell.       JAJHL^  .^ 1 1.^- ». 
•  Co,  Campbell.  Geouge  Dot*  i 

At  Ularyhiirgh,  the  3d  day  of  J 
^earSf  in  presence  of  the  aaid  Geor^r  i 
'    '  eriflf-sybttilule  of  the  shire  uf  1  * 
M,red  Alltin  Slewart  son  loji 
Aucharn ;  who,  being  examine  i 
cl art's,   Thau  Allan   Breck    t^i* 
'  the  declaraiH^s  falltcr^s  hoU!ie  i>^: 
ernotio,  the  I  Jlh  day  of  May  1; 
rioog  blue  roatj  reil   waistioiit,  L— ^ 
Jtortan-bose,  and   a  hat ;   and  after  » • 
tioie  there,  did  put  off  his  blue  cn«i 
coat,  and  put  on  a  black  shurt  coat  ^^ 
buttons,  belonging  to   the  declarant 
band  weut  that  afiernooo  to  work  n  i' 
IpClarant'fi  father**  servants  incovcrmu 
[that  the  said  Allan  Breck  Maid  that  i: 
[was  dressed  next  morning  in  his  bhj 
[red  waistcoat,'  as  the  day  betbre:    li^ 
'  clarant  did  not  see  him  go  awajj  fruv.. 
Llipou  the  12lh,  the  declarant  being  ii 
from  the  lime  lie  rose  in  the  morning 
€if  the  clock  Ihut  forenoon,  stminsf  ii^l' 
4:ept  once  that  he  made  a  start  home  for  i 
i  J»ear.     Declares,  Thai  upon  the  aftrnuirr 
Ihe   said   Allaii  Breek  came   to  Au 
sibreiiaid,  be  told  the  dcclamnt,  thai 
in  GlencrearetK  that  the  lenouls  whohaii  : 
the  lands  of  Ardsliiel  were  to  be  at  Gletu 
on  Thursday's  night,  in  order  to  enter  t 
possession  on  Friday  the  15th  dayof  Muv 
and  told  him  likewisei  that  he  beard  GIluui 


rSrrtMff, 


[1G4 


Mi  brnthcT  Allan  to  come  home ; 
ks  tsil  brother  ^uh  gotie  n  little  before 
00-^^  SJm  Uacctoll  came,     liechrea  alio, 
^  1^  mm  Swan   Uoy   MacooU,  Ivratbar  to 
ta«^  fci«in  at  KoAlianacoan,  at  the  deck- 
^b'^  Mber*i  houje,  upon  the  evening  of  the 
1^1^  4kf  «f  May  last  before  i(»ey  lighted  caiu 
lyi  ^b)  lild  ke  had  come  from  Gleneo  ilm  I 
^^  ^  ^ril  Im  afterwards,  that  nighty  came  tata  j 
j^  ^0«  vliere  the  declarant  was  lying  if rth  i 
^w^^  Mm  Ktewari,  looking  for  a  bed,  nsii 
to  he  with  the  servants  in  the  otlicrl 
Aucharn.      Declares,   that  upon  h\a^ 
tntihaig  with  ttie  said  Jolm  M%C' 
fggL  lyiaener,  that  the   declarant  a«iked  him 
^\jft  Gienore  was  murdered,  what  way  it  wif  ; 
.1..**  tad  if  any  per^ioo  was  htm  by  the  place  ?  1 
If  said  Jtdin  aosweredv  That  it  whJ 
»'  wood  of  Leitermorc ;  whether  rt' 
or  north  of  thr  hous^eii,   be  could 
^Lit  U  xrf*^  by  a  Khot^  and  that  tiu're 
sten  near  the  place ;  aod  . 
it  remeudjers  of  the  coo- 1 
' :    and  that  u^ioti  his  1 
'  i'l  fattier  d'^^ire  ttie  I 
.11  lo  go  aud  t^ikecareofj 
his  fatlier  proposed  to  go  J 
,  ,.  wife  would  not  let  btoi ; 
ic  time,  heard  his  father  «j 
e  suspected  of  tlic  murder,  as 
o  [nucti  part  with  the  tenanU 
L'  the  factor:     that    \w  heard 
I  AUccoll  say,  Ujion  the  13lh  day  of 
thu^  he  wondered  that  Glcnure  wu 
:Tant8  that  paid  their  retU  wetlij 
^  tf>  quality  to  the  gorrrnm^nt! 
'  r  and  the  ^ 
I  cooversiJi 
I  (lis  ilecbralion  • 
and  date  forf**iiid.  In 
Id  Camjibell  of  Airds,  anu  V.U114J 
II  whin,  ee^rs. 

(S 'r^ 

r.LL,           Cl  WART. 

,4..  1..  GEu ^  -^OLAS,  8, 

>:u,r,ift,  son  to    the    said    Ja 
I,   being   solemnly   swo 
nie&,  That,  upon  Toosdajj 
current,  the  deponent  aoi 
■  ;.  Stewart  went  from  th 
i\>  liouse,  %vhere  the  said  Alla^ 
tj  from  the  Ut  current  (exccpj 
v«turday*a  night  at   Cuil),  an 
ui'«  house  on  l^ue^day's  nt^lin 
ui^lu    at    AnchnacK] 
d    Aucljaourim*s,  Fd 
V  *s  night  at  Fasnaclo' 
ly  the    llth  currents 
I  *ili»>  dresK  the  said  [ 
a   long-bodiedi 
breaches,  a  hat  I 
r,  and  tartan  hose,  with  a  It^ 
n=d  :   in  which  very  dress,  an 
along  with  the 
u\mn  the  llth 
iUtd  ihero  Umt  night,  and 


Jot  Murder, 

nnd  he  l«y  logeUier :  that  he  rose 
deponent  on  TuesJay  ilje  12Ui  cur- 
lijal  the  deponent  vraa  tip  be  lore  be 
'  m-s ;  and  tttat  as  lie  was  going 
'Wftn  about  8  or  9  of  the  clock  to 
waB  told  by  liim  lie  was  gfoin^ 
it  tben  he  had  od  tbe  whole  of 
dress  as  above  described  :  that  the 
accompanied  him  to  Kintalline,  and 
vd  Vfiih  bim  any  where  on  the  road  : 
|Mi*iS€d  tbrongh  Auchiodarroch  and 
^  And  spuke  with  soirte  people  as  they 
Dg,  particularly  Alexander  Stewart 
htk^  and  Alexander  Stewart  his  son : 
tue  coal  Allan  wore  bad  yellow  metal 
that  the  deponent  and  be  parted  ut 
»,  after  the  deponent  asked  John 
iccombie  for  ale  there.  Aad  this  is 
le  shall  answer  to  Gml. 

(Signed) 
D^ursELL,  S.  D.    GHAictJ^  Stewart* 

et  Sictcartt  spotise  to  James  Stewart 

rtt<  being  solemnly  sworn  and  exa* 

■■tefl,    That    Allun  Breck  Stewart 

^^^Onse  upon  Mottday  immediately 

l5orc*8  murder,  dressed  as  mentioned 

deposition,  and  with  a  bij^  coat  of  tbe 

3r ;  that  he  stayed  all  night,  and  went 

t  day  about  8  or  9  of  the  dock  in  the 

dr^Bcd  in  the  same  habit ;    and  at 

'  teaye  of  the  deponent,  asked  her,  if 

"iny  commands  lor  f tannoch  ?   Tbut, 

ot  her  knowledge,  he  came  by  him- 

rent  away  by  bimsalf.     And  Vhis  is 

(ms  she  shall  answer  to  God  ;  and  de- 

tduiKit  wrile.     (Signed) 

Arch.  CampbeiXi  S,  D. 

'J  t^£f  t«rf,  daughter  of  tbe  said 
wan  in  Aucharn,  being-  solemnly 
examined,  depones,  contbrni  to 
'T*%  deposition  in  every  ibingf,  only 
positive  tbut  Allan  Breck  Stewart 
one  tf^  Aucharn,  ujkiu  Monday  im- 
before  Glenure's  murder,  she  having 
come  I  here.  And  this  is  truth,  aK 
answrr  to  God ;  and  declares  she 
ilds«  that  Solomon  IVIaccidI, 
..\  went  u/f  for  tbe  south 
on  SiJatuiday  the  16tb  current , 
€d)        Arch,  Cami^cell,  S.  D. 

5ffii(ir/,    son  of   the   said    James 

^ttcb^irn^  iK-intf  re-examined,  judi- 

S    That  Dusrald   Wacroll, 

Id  tbe  said  Charles  Siewarl, 

were  arms  in    his  father^s  bousi', 

id  bid;  and  this  judicial  arknow* 

ntii  this  ?3d  day  of  May,  1752 

'  ese  wi messes,  Donald  Catn^)- 

nd  James  Campbell,  writer  lo 

Titer  hefcof. 


A,  D.  1752. 


[106 


(Signed) 

lARLLS  HtE 


^CaWpbell.       Cdarlls  Stewart, 


pf  Ibe  said  Ckurla  Stewart  jitdi* 
flliat,  upoQ   the  Utb   day  of 


'  Mny  current,  tbe  block  short  coat  with  silver 
buttons,  tben  wore  by  Allan  Breck  Stewart,  ^ 
was  i^iven  lo  bim  by  the  declarant's  liillier; 
and  that  h<»  had  i^ot  the  pJaidt-u  irowsers,  tliea 
wore  by  bim>  from  the  dedamni's  father,  or 
brother  Alkin ;  and  tins  is  also  signed,  place 
and  dale  aforesaid. 

Witnesses  (Signed) 

Donald  Campbell,    Ciiahlks  Stewart, 
J  A.  Campbell,  Arcm.  Campbell,  S.  D. 

The  said  Margaret  Stewart^  spouse  to  the 
saiil  James  Stewart  in  Aucharn,  being"  rc-exa- 
mined,  judicially  declares,  That  her  husband 
James  Stewart  was  at  home,  and  lay  in  rhc . 
same  bed  with  her,  on  Monday's  night  ibe  Ulli 
of  May  current.  And  this  is  also  truth,  as 
she  simll  answer  to  Gud  ;  and  declares  she 
cannot  write.  (Signed) 

Ancir,  Campbell,  S.  D. 

The  said  Elizabeth  Stetrart,  her  daughter, 
re-examined,  judicially  owns.  That  her  father 
was  at  home  on  Monday's  nipht  the  IJlh  day 
of  May  current  And  this  is  also  truth,  as 
she  fihall  answer  lo  Goil ;  and  declares  she 
ca  n  n  ot  wri  te .         (Sig  n  ed) 

Arch.  Campbell,  S.  D. 

At  Taynaheiniai^,  the  25th  day  of  May, 
1752  yeais,  tbe  said  ChurUs  Stewart,  beinif 
re-examined  by   the  said  sheriff- depute,  [udi- 
cially  declares,'ThBl  the  said  Allan  Breck  Stew- 
art bad  on  a  binck  short  coat  with  round  silver 
luMlons,  upon  the  oOlh  day  of  April  fast,  when  . 
he  came  to  the  declarant's  tUtber's  house  in  ■ 
Anchain  from  flannod» :    that  thi;  declarant 
left  the  said  Allan  Dreck  at  tiis  father's  Uq»w, 
be  himself  havinir,   npon  the  1st  day  of  May  '] 
current^  pane  to  Glenure   alon^  with  the  te- 
nants of  Ardsbief  and  Charles  Slewarr,  notary, 
to  t)e  a  witness  to  tbe  intimation  of  the  sist 
Ihey  had  obtained  against  the  decreet  of   re- 
moving ;  and  that  upon  his  return  thateveuint^, 
he  fuuad  tbe  snid  Allan  Breck  at  bis  lather's^ 
and  was  then  dressed  in  a  Mack  short  coat  and 
round  silrcr  buttons;  ami  then  ohsi^rveil,  that 
tbe  said  coat  was  lined  with  red  in  ibc  breast  and 
Fkirts;  and  that  the  said   Allan  told  bim,  tl^it 
be   had    c^ot    tbe   said   short  coat    from    the 
declarant's    father^     but  docs  not  remember 
when  it  was  be  loM  him  so.     DeclarcB  also, 
that  tbe  said  x4llaii   fbeck  Stewart  had  on  hhii:  - 
and    while    ti-owsers,    wi»en    he    t-ame    from 
Itann'ich  to   bis  fufher*a  houi^t*,  on   the  30ih 
day  of  Apnl ;    and  hud  tbem  liltmusc  on,  on 
(he  '^d  day   of    May  current,  tihcn  be  went 
(0  Cuil  in  Appin;  and  tbtii  he  wore  tbe  $ame 
dress  upon  the  3d  nud  4th  days  of  May  cur* 
rent:    that  the  iMiid  Allrin  did  put  on  his  siile 
blue  coat  on  tlie  5ih  tiay  oi  May  current,  when 
he  went  to  Appiu^s  houstf :    and  likewise  dc* 
dares,  that  he  saw  Allan  Breck*i*  blue  coat, 
upon  the  13th  current,  lyin^j;^  upon  a  trunk  in 
the  room  upon  the  rtgUi  hand  of  the  entry  of 
biii  lalherV  house;   that  the  ntmi  Allan  had  on 
the  saidblack  &huit  coat«  when  st  breakfast  at 
the  deciaratit'6  faiba'a  house,  u[iod  tlie  isilli 


lOS]  25  GEORGE  U. 

thfit,  in  a  conversation  the  declarant  had  with 
old  Buil-'chelish  on  the  Sunday  before  Gle- 
mire's  murder,  Ballachelish  then  told  the  de- 
clarant, that  the  man  that  had  taken  the  terry 
of  north  Ballachelish,  came  there  with  his  boat, 
and  was  refused  to  enter  to  the  possession  by 
the  tenants,  who  thought  they  had  as  good  a 
right  to  the  ferry  as  to  the  land :  that  there- 
upon the  ferry -man  drew  his  boat,  and  went  to 
Glenure,  the  tenants  being  resolved  to  keep 
their  possessions  for  the  year ;  and  that  Bal- 
lachelish said,  that  the  tenants  of  the  Ardshiel 
estate  had  as  good  a  title  to  sit,  as  the  tenants 
of  Ballachelish,  if  the  suspension  was  not  dis- 
cussed ;  and  that  it  was  a  cant  word  throogh 
the  country.  That  the  tenants  might  sit,  since 
the  worst  of  it  would  be  pay  in?  the  violent  pro- 
fits. Declares  also.  That  he  has  a  gun  and 
broad-sword  :  that  he  lefltheguu  in  his  father's 
brew- house,  and  the  sword  he  gave  to  John 
Maccbll,  his  father's  servant,  that  is  prisoner  at 
Fort-William :  that  John  lloy  Stewart,  nephew 
to  Fasnacloich,  lay  in  the  barn  with  the  decla- 
rant upon  Thursday's  night  the  14th  day  of 
May  last ;  and  that  John  Stewart  in  Auchna- 
coau  lay  in  the  same  barn  with  the  declarants 
brother  Charles,  being  the  night  that  the  said 
-Kwan  Koy  Maccoll  came  to  look  for  a  bed 
there.  This  judicial  ileclaration  emitted  in 
presence  of  the  said  aheritPsubslitute,  place 
and  date  f(»resaid,  before  these  witnesses,  the 
right  honourable  the  lord  Bury,  colonels 
Howard  and  Crawfurd,  Donald  Campbell  of 
Airds,  and  Colin  Campbell  of  Carwhin. 

Witnesses,  (Signed) 

Donald  Campbell.      Allan  Stewart. 
Co.  Campbell.  George  Douclas,  S.  S. 

At  Mary  burgh,  the  4th  day  of  June,  1752 
years,  in  presence  of  the  said  George  Dou;r|as, 
sheritr-suMtitute  aforesaid,  compeared  Charles 
Stewart^  Hon  to  James  Stewart  in  Aucharn  ; 
who  being  examined  judicially,  declares.  That 
be  was  at  home  all  day  of  the  14th  day  of  May 
last,  and  that  he  dined  with  his  father,  mother, 
brother,  sister,  and  Fasnacloich's  daughter; 
and  after  dinner  went  to  Auchindarrocb,  and 
there  conversed  with  Duncan  Maccorahie, 
Duncan  and  John  Maccolls,  and  others  that 
irere  covering  potatoes,  and  desired  Solomon 
Maccoll  to  gu  with  Fasnacloich's  daughter  to 
Ardnamurchau,  but  be  would  not  go:  that 
Fasnacloich's  daughter  and  the  declarant's 
sister  went  along  with  him  to  Auchindarroch, 
and  returned  before  him  to  Aurharn,  the  de- 
clarant having  stnid  ar quarter  of  an  hour  after 
them,  to  pL'Psuade  the  said  Solomon  to  go  to 
Ardnamnrchnii,  and  then  followed  them  di- 
rectly to  Aucharn ;  and  did  not  go  nearer  Let- 
termore  that  day,  than  the  place  where  the 
people  of  Auchrndarroch,  were  coreriog  pota- 
toes ;  and,  in  an  hour  thereafter,  went  with  Fas- 
nacloich's daughter,  and  the  declarant's  brother 
Allan,  and  sister,  to  JuKhaig,  where  he  re- 
ceived the  newt  of  Glenure's  murder  from 
John  Maccoll,  now  prisoner  at  Fort-William ; 
Mag  tent  there,  by  the  declarant*!  ftthcr,  to 


Trial  of  James  Stewart ^ 


[164 


desire  him  anil  his  brother  Allan  to  come  home ; 
but  that  his  said  brother  wos  gone  a  little  before 
the  said  Juhn  Maccoll  came.  Declares  also, 
that  he  saw  Ewan  Uoy  Maccoll,  brother  to 
Appin's  bouman  at  Koalisnacoan,  at  the  decla- 
rant's father's  house,  upon  the  evening  of  the 
14th  day  of  May  last  before  they  lighted  can- 
dles, and  told  he  had  come  from  Glenco  that 
day  ;  that  he  afterwards,  that  night,  came  into 
the  barn  where  the  declarant  was  lying  with 
his  uncle  John  Stewart,  looking  for  a  bM,  and 
was  directed  to  lie  with  the  servants  in  the  other 
barn  in  Aucharn.  Declares,  that  upon  hia 
return  from  Inshaig  with  the  said  John  Mac- 
coll, prisoner,  that  the  declarant  asked  him 
where  Glenure  was  murdered,  what  way  it  war 
done,  and  if  any  person  was  seen  by  the  place? 
and  that  the  said  John  answered;*  That  it  was 
done  in  the  wood  of  Lettermore ;  whether  it 
was  south  or  north  of  the  houses,  he  could 
not  tell ;  that  it  was  by  a  shot,  and  that  there 
was  a  man  or  two  seen  near  the  place ;  and 
this  is  all  the  declarant  remembers  of  the  con- 
versation upon  that  head ;  and  that  upon  hit 
coming  home,  he  heard  his  father  desire  the 
people  of  Auchindarroch  to  go  and  take  care  of 
the  corpse ;  and  that  his  father  proposed  to  go 
himself,  but  that  his  wife  would  not  let  him  ; 
and,  at  the  same  time,  heard  his  father  tay 
that  he  would  he  suspected  of  the  murder,  as 
he  was  taking  so  much  part  with  the  tenants 
against  Glenure  the  factor:  that  be  heard 
Kwan  Uoy  Alaccoll  say,  u|K)n  the  13th  day  of 
Mny  last,  that  he  wondered  that  Glenure  was 
removing  the  tenants  that  paid  their  rent  well, 
and  were  willing  to  qualify  to  the  government: 
that  he  observed  his  father  and  the  said  £wao 
Roy  Macctdl  liave  several  conversations  aside 
about  that  lime.  This  declaration  emitted  ju- 
dicially, p!ace  and  date  foresaid,  before  these 
witnesses,  Donald  Campbell  of  Airds,  andColio 
Campbell  of  Carwhin,  esqrs. 

Witnesses,  (Signed) 

DoKAi.D  ('ampisell.        Charles  Stewart. 
Co.  Campbell.  George  Douglas,  S.  S. 

ChatLs  Stewart,  son  to  the  said  James 
Stewart  in  Aucharn,  being  solemnly  sworn 
and  examined,  depones.  That,  upon  Tacsday 
the  .0th  day  of  May  current,  the  deponent  and 
the  suid  Alhui  Breck  Stewart  went  from  the 
deponent's  father's  house,  where  the  said  Allan 
had  been  on  ntid  from  the  Ut  current  (except 
that  he  was  Saturday's  night  at  Cuil),  and 
stayed  at  Appiirs  house  on  Tuesdav's  night, 
were  Wednesday's  night  at  Auchnacoan's, 
Thursday's  niglit  at  Auchaouran's,  FridaVy 
Saturday,  and  Simday's  night  at  Fasnacloich's, 
and  came  on  Monday  the  11th  current  to  bis 
father's  house :  that  the  dress  the  said  Allan 
wore  all  this  while,  was  a  long-bodied  blue 
coat,  red  waistcoat,  black  breeches,  a  hat  with 
a  black  feather,  and  tartan  hose,  with  a  biff 
coat  dun-coloured  ;  in  which  very  dress,  ana 
with  which  big  coat,  he  came  along  with  the 
deponent  to  his  fiither's  house  upon  the  11th 
're  that  night,  ud  tiM 


current,  continned  there 


165] 


Jot  Murder. 


4epoD€Ot  and  he  Uy  tO(;etber :  that  he  rose 
bdbre  ibe  deponeot  ou  Tuesday  the  12th  cnr- 
Rot,  but  that  the  deponent  was  up  before  he 
left  bii  father'* ;  and  that  as  he  was  going 
away,  which  wan  about  8  or  9  of  the  clock  in 
the  vaoniugf  was  told  by  him  he  was  going 
for  Glcneo :  that  then  be  had  on  the  whole  of 
the  same  dress  as  abore  described :  that  the 
depsaeol  accompanied  him  to  Kintatline,  and 
M  sot  part  with  him  any  where  on  the  road  : 
ibal  tbey  paused  through  Aochindarroch  and 
Lijpnba,  and  spoke  with  some  people  as  they 
vest  akmg,  particularly  Alexander  Stewart 
B  fff?;p^f**j  and  Alexander  Stewart  his  son : 
tkat  the  blue  coat  Allan  wore  had  yellow  metal 
knttons:  that  the  deponent  and  he  parted  at 
Kiutalliue,  after  the  deponent  asked  John 
Breck  Haccombie  for  ale  there.  And  this  is 
trslh,  as  he  shall  answer  to  God. 

(Signed) 
Aacs.  Campbell,  S.  D.    Charles  Stewart. 

MtLTgarel  Stevare,  spouse  to  James  Stewart 
is  Aucbam,  being  solemnly  sworn  and  exa- 

'  id,  depones.  That  Allan  Breck  Stewart 
i  to  her  house  upon  Monday  immediately 
i  Glenore's  murder,  dressed  as  mentioned 
is  the  last  deposition,  and  with  a  big  coat  of  the 
sme  colocir ;  that  he  stayed  all  night,  and  went 
away  next  dby  about  8  or  9  of  the  clock  in  the 
fcreaooDy  dressed  in  the  same  habit ;  and  at 
bb  taking'  leaye  of  the  deponent,  asked  her,  if 
ibe  had  any  commands  for  Rannoch  ?  That, 
16  the  best  of  her  knowledge,  he  came  by  him- 
scV,  and  went  away  by  himself.  And  this  is 
Ibe  truth,  as  she  shall  answer  to  God  ;  and  de- 
dvcsshe  cannot  write.    (Signed) 

Arch.  Campbell,  S.  D. 

EUzabeik  Sieaart^  daughter  of  the  said 
iiaes  Stewart  in  Aucharn,  being  solemnly 
■swa  aad  examined,  depones,  conform  to 
bcr  BMlber's  deposition  in  every  thing,  only 
Ikil  the  is  positive  that  Allan  Breck  Stewart 
cine  sll  alone  to  Aucharn,  u|>on  Monday  im- 
■edincly  before  Glenure's  murder,  she  having 
•Ro  bim  come  there.  And  this  is  truth,  as 
■be  shall  answer  to  God ;  and  declares  she 
CHSot  write ;  and  adds,  that  Solomon  Macc^iil, 
in  father's  servant,  went  off  for  the  south 
(MMry  upon  Saturday  the  16th  current. 
(Signed)        Arch.  Campbell,  S.  D. 

Ckarlet  Stewart,  son  of  the  said  James 
^mrt  in  Aucharn,  being  re-examined,  judi- 
cid^  acknowledges,  That  Dugald  MaccoU, 
Un  declarant,  told  the  said  Charles  Stewart, 
ikM  there  were  arms  in  his  father's  house, 
*bich  he  had  hid ;  and  this  judicial  acknow- 
Ulgment  is  signed  this  23d  day  of  May,  1752 

^1,  before  these  witnesses,  Donald  Camp- 
af  Airds,  and  James  Campbell,  writer  m 
bvtrary,  writer  hereof. 

Witnesses  (Signed) 

Donalo  Campbell.      Charles  Stewart. 
Ja.  Campbell. 

Thereafter  the  said  ClutrUi  Stewart  judi- 
Mf  o«Bi|   That,  upoo  tha  lUth  day  of 


A.  D.  1752.  [166 

May  current,  the  black  short  coat  with  silver 
buttons,  then  wore  by  Allan  Breck  Stewart, . 
was  given  to  him  by  the  declarant's  father; 
and  that  he  had  c^ot  tiic  pkiiJ'jn  trowsers,  then 
wore  by  him,  from  the  declarant's  father,  or 
brother  Allan ;  and  this  is  also  signed,  place 
and  date  aforesaid. 

Witnesses  (Signed)' 

Donald  Campbell.    Charles  Stewart. 

Ja.  Campbell.  Arch.  Campbell,  S.  D. 

The  said  Margaret  Stewart,  spouse  to  the 
said  James  Stewart  in  Aucharn,  being  re-exa- 
mined, judicially  declares,  That  her  husband 
James  Stewart  was  at  home,  and  lay  in  the 
same  bed  with  her,  on  Monday's  night  the  11th 
of  May  current.  And  this  is  also  truth,  as 
she  shall  answer  to  God ;  and  declares  she 
cannot  write.  (Signed) 

Arch.  Campbell,  S.  D. 

The  said  Elizabeth  Stewart,  her  daughter, 
re-examined,  judicially  own«,  That  her  fathet 
was  at  home  on  Monday's  night  the  11th  day 
of  May  current  And  this  is  also  truth,  as 
she  shall  answer  to  God ;  and  declares  she 
cannot  write.        (Signed) 

Arch.  Campbell,  S.  D. 

At  Taynaheinsaig,  the  25th  day  of  May, 
1752  years,  the  said  Charles  Stewart,  being 
re- examined  by  the  said  sheriff- depute,  judi- 
cially declares.  That  the  said  Allan  Breck  Stew- 
art had  on  a  black  short  coat  with  round  silver 
buttons,  upon  the  30th  day  of  April  last,  when 
he  came  to  the  declaraiu's  father's  house  in 
Aucharn  from  Uannocli :  that  the  declarant 
lef^  the  said  Allan  Breck  at  his  father's  house, 
he  himself  having,  upon  the  1st  day  of  May 
current,  gone  to  Glennrc  along  with  the  te- 
nants of  Ardshiel  and  Charles  Stewart,  notary, 
to  be  a  witness  to  the  intimation  of  the  sist 
they  had  obtained  against  the  decreet  of  re- 
moving ;  and  that  upon  his  return  that  evening, 
he  found  the  said  Allan  Breck  at  his  father's, 
and  was  then  dressed  in  a  black  short  coat  and 
round  silver  buttons ;  and  then  observed,  that 
the  said  coat  was  lined  with  red  in  the  breast  and 
skirts  ;  and  that  the  snid  Allan  told  him,  that 
he  had  got  the  said  short  coat  from  the 
declarant's  father;  but  docs  not  remember 
when  it  was  he  told  him  so.  Declares  also, 
that  the  said  Allan  Breck  Stewart  had  on  blue 
and  white  trowsers,  when  he  came  from 
Kannoch  to  his  father's  house,  on  the  30th 
day  of  April ;  and  had  them  likewise  on,  on 
the  2d  day  of  May  current,  when  he  went 
to  Cuil  in  Appin;  and  that  be  wore  the  same 
dress  upon  the  3d  nnd  4th  days  of  May  cur- 
rent :  that  the  said  Allan  did  put  on  his  side 
blue  coat  on  the  5lh  day  uf  May  current,  when 
he  went  to  Appin's  house :  and  Iikt>wise  de- 
clares, that  he  saw  Allan  Brock's  blue  coat, 
upon  the  13th  current,  lyinj;  upon  a  trunk  in 
the  room  upon  the  right  hand  of  the  entry  of 
his  father's  house:  that  the  said  Allan  had  on 
the  said  black  short  coat,  when  at  breakfast  at 
the  declarant'ft  father's  house,  u^wn  the  IStli 


167]  25  GEORGE  U. 

d:iy  of  May  current,  but  had  on  no  jockey- 
coat  then.  This  declaration  is  judicially 
si!;ned,  place  and  date  foresaid,  before  these 
wiiiipsses,  Donald  Cain|ibc'll  of  Airds,  and 
Colin  C»in|)b<ill  of  Car«%hin. 

W  iini'sisps  (Signed) 

Donald  Campbell.    Charles  8tewart. 

CoLLN  Campbell.      Abcu.  Campbell,  8.  D. 

The  said  Margaret  Stewart,  spouse  to  the 
faid  James  Stewart  in  Aucharn,  bein^  re- 
exaniiiied^  declares,  That  the  black  short  coat 
now  aheivn  to  her,  is  the  same  which  was 
broiif(bt  from  her  house  upon  Saturday's  even- 
in(f  the  23d  current,  and  belongs  to  Allan 
8tewarl,  her  son:  that  her  husband  has  had  no 
black  coat  lor  three  quarters  of  a  year  past ; 
and  that  the  last  black  short  coat  be  had,  was 
given  by  him  to  John  More  Maccoll ;  and  that 
ihc  round  siker  buttons,  which  are  upon  the' 
coat  now  produced,  were  formerly  -unon  the 
coat  gi?eu  to  the  said  John  More  Maccoll. 
This  judicial  declaration  is  emitted  this  25th 
day  of  Maj',  1752  years,  before  these  wit- 
nesses, Coliu  Campbell  of  Carwhin,  and  Do- 
nald Campbell  of  Airds;  and  the  declarant  de- 
clans  she  cannot  write. 

Witnesses  (Signed) 

Collm  Campbell.  Arch.  Cami^ell,  S.D. 

DOxNALD  Campbell.  . 

The  said  Margaret  Stewart  also  owns.  That 
there  was  a  ffun  in  her  husband's  house  this 
spring*,  which  she  saw  her  Kon  Allan  go  out  with 
once  or  twice  to  kill  blackcocks.  This  judi- 
cial declaration  is  also  signed,  place  and  date 
aforesaid,  and  before  the  witnesses  above  named 
and  designed. 

Witness  (Signed) 

Donald  Cam  pbell.        Arch  .  Campbell,  S.  D. 

Letter  addreued  to  Duncan  Stewart  of  Glen- 
buckie. 
'*  Now  I  am  sorry  to  acquaint  you,  affairs  is 
going  quite  wrong  u{)on  this  estate  of  your 
cousin's:  Glenure  wants  Ardshiel  and  Letter- 
more  in  his  own  hands,  and  more  rent  for 
our  tenement,  and  the  carriages  to  himself. 
Mow  far  these  things  will  take  place,  God 
knows!  the  man  that  makes  the  u hole  noise, 
18  Rallieveolan,  upon  account  of  our  keeping 
John  More ;  for  he  does  not  deny  but  what  he 
oflft^rs  more  rents  for  Glenduror,  and  gives  this 
as  his  reasons.     Hovrevrr,  it  shall  be  a  dear 

glen  to  them  or  they  shall  have  it.  All  you 
eard  about  the  country  is  true :  1  go,  in  a  few 
days,  to  K.ngailoch  for  the  stallion,  which 
«t:;Dds  us  eight  guineas ;  he  wants  to  harrow 
him  this  spring,  and  to  get  him  broke  for  the 
saddle  ag:un  harvest.  Fasnacloich  has  made 
the  purchase  for  himself.  You'll  not  neglect  to 
seud  ail  the  money  you  can  in  a  very  short 
time,  as  money  never  was  scarcer  in  this  coun- 
try. Riugailoch  has  got  money ;  to  that  we 
are  sure  of  his  cows.  Malcolm  Livingston  hat 
rent  for  more  money ;  for  be  employed  what 
he  got.  I  shall  refer  the  whole  history  of  th« 
coantry  till  I  -have  the  plewure  i»f  aeeuig  joo. 


Trial  qfJame$  Stemartf 


[168 


I  begyouMI  not  neglect  ■ending  a  wrvaot  toon, 
with  as  much  as  possible;  let  nothing  stop 
him.  Neglect  not  about  your  brother.  No 
more,  but  my  compliments  to  Mist  Jeany^ 
Sandy,  and  little  Dvinald,  is  all  from,  dear 
cousin,  1  am  year  affectionate  cousin, 

(Signed)        "  Allan  StEWABT." 
<<  Dated  Aucharn,  April  the  let,  1751." 

Maryhurgh^  4th  June,  1758  years.  This  . 
letter  was  tuund  among  James  Stewart  io 
Aucharn 's  papers,  and  shewn  this  day  to  Allan 
Stewart  his  son,  who  refuses  it  to  be  his  hand- 
writing, in  presence  of  Colin  Campbell  of 
Carwhin,  and  Donald  Campbell  of  Ainb,  esqrs* 
two  of  his  majesty's  justices  of  peace  for  Ar- 
gyllshire. 

Witnesses  (Signed) 

Donald  Campbell,  Arch  .  Campbell,  S.  D« 
Co.  Campbell. 

The  above  letter  was  addressed  on  the  back« 
"  To  Duncan  Stewart  of  Glenbuckiey  at  Brcn- 
chyle." 

Jame»  Stewart  to  Charlet  Stewart^  Notary, 

**  Dear  Charles ;  Not  knowing  of  yoor  re* 
torn  from  Mudart,  sent  for  your  father  Toes- 
day's  afternoon ;  but  the  rascal  I  seat»  weol 
not  by  Gleocrearan  that  night,  by  which  1» 
uiissed  the  old  man,  who  went  a-fishiog,  at 
you'll  see  by  the  inclosed,  early  that  morning; 
which  I  reckon  a  very  great  misfortune.  The 
next  best  1  can  think  of  is,  that  yon  be  btra 
without  fail  this  night,  if  you  should  hire  a 
horse,  as  every  thing  must  go  wrong  without 
a  person  can  act,  and  that  1  can  trust.  Tliis  m 
such  a  tie  upon  all  the  memberij  of  our  family, 
that  I'll  press  you  no  further,  but  do  depend  oo 
seeing  you  once  this  night ;  and  am  your  own, 
&c.  dear  cousin, — (Signed)  James  Stewabt." 

**  Aucharn f  May  14th,  eight  o'clock  morn- 
ing, 1753." 

'*  P.  S.  As  I  have  not  time  to  write  to  Wil- 
liam, let  him  send  down  immediately  8/.  ster- 
ling,  to  pay  four  milk  cows  1  bought  for  hit 
wife  at  Ardshiel." 

Addressed  on  the  back  thus:  « To  Mr. 
Charles  Stewart  at  Auchiutour.    Per  express." 

Wtlliam  Stewart  to  James  Stewart. 

*•  Maryburgh,  Maif  14,  1759. 
'*  Dear  Sir ;  I  send  the  bearer  Vor  the  best 
mare,  atil  my  young  lieasls  in  Salachan; 
unless  you  keep  by  it  (i%hich  1  think  yoa 
outfhi),  and  send  some  other  btui}'  np  with  him, 
and  let  them  carry  the  milk  (jows  you  l>ought 
for  me.  Let  the  filly  be  grazed  Iherfabontf, 
waiting  market. — 1  find  Glenure  has  a  mind  to 
eject  the  tenants ;  but  they  oughi  tu  be  deaf  to 
it,  and,  at  all  risques,  keep  |M»Bsession,  as  thej 
are  in  good  hands,  as  it  must  end  in  exchequer; 
so  that  1  beg  they  keep  possession ;  as  there 
will  be  no  tnM>|)s,  they  ought  to  repel  force  bj 
force,  and  take  their  hazard  of  the  consequence; 
as  it  eao  be  no  more  than  violent  profits,  which 
is  oftM  OMdifiod  in  inftrior  courts,  beaidctth* 


109] 


^r  Murder, 


A.  D.  17««; 


[iro 


ocbimr,  who  will  infiiM  for  no  BMch  ;  limr 
dnef  ml)rii  brrn^  to  Imre  a  Mett  ot  ]ieftC(r!il»)e 
toniotry,  a»^  a  viell  iittid  rent  ;  so  ihut  the 
people  f>4 >>/!>»  I'i  K<?  a'^vureil  tbey  i^hall  b«  su|]- 
]ir«rted  a^  «  wdi,  which  imi  iJmiNt  mti:»t 

lilirillitt'  II  ta%«)ur<);  and  atn,  <ie»r  ^ir, 

yiarcMrn,  ^c,<^(^f««(/^  William  Htewast/^ 

>il  on  the  back  thus :  ''  To  I^Jr.  Jumes 
tin  Aucharn.*' 

Wrut€  on  the  back  thus : 

••  Marykvrgh,  the  5lh  day  of  June,  1759.— 
Tte  m  ibe  LfUer  reUtife  to  the  tleclaraiion 
esiCtod  Ibi^  Jay  bctWe  me^  by  William 
Jlnr&K«  merchant  in  lllar>bnr}jrh. 

(St^nifd)    **  GcoHOE  DoccLAs^  S.  S." 

Jama  Sttwart  to  John  Mucfttrlane. 

>  Sir  ;  JhsI  now  hud  )<our  faTour,  and  am 
llicse  fiiior  tenants  shouhl  have  made  use 
I  ffir  re|ireaenting  iUvit  grievance,  a^  in 
ill  appearance,  it  hai  bmirgHt  a  frr^at  iWni  of 
teooMf  npnn  mc;  being  carried  here,  and  my 
ift'  <Uy  last  Mis|>ecicd  in  be  kno^ioif 

h.  un  murder  uf  Glenitre,  who  Mas 

ibot  ile^i  unon  ThursfUy  the  i4tU  current,  m 
Itond  within  two  niilcii  of  my  house,  jt  ie 
Mt  jirel^oded  that  I  or  my  son  were  actor»  in 
Ml lUNTid  action,  as  HC  both  can  he  itell  at- 
iiled;  but  atteKes,  it  was  a  {irempflilated  thioLS 
llvhich  I  must  have  been  Uiio^in^  :  liut  so 
ftrMliCT^i»e»tbat  no  man  (i  tliaok  tti>d)  uhhor^ 
ttfidmor^.  and  would,  if  at  liht-rly,  dti  «H 
kmy  power  to  briflt,'  it  to  hifht,  Therf  t»  ouc 
AHliiSlewiirt,  tt  difitant  friend  of  the  late  Atd- 
1^%  who  ti  in  the  French  service,  and  cume 
mrio  Marclk  la&t,  as  be  said  to  come,  in  order 
kwttU*  at  home  ;  lo  olbera,  that  he  was  to  go 
Mn  haek  ;  and  was,  as  1  hear,  ilie  day  the 
imier  wa4  commit  led,  seen  nnl  fur  from  tlie 
fill*  where  it  htippened^  iin'l  h  now  not  to 
Wifrn  I  by  which  it  in  beliere<l  be  was  the 
^lir;  be  is  U  ile^p^'iate  foolish  fellow  ;  mtd^  if 
Wtoifnilty,  came  to  the  cotinrry  for  lliat  fery 
iBfiaie.  He  in  a  tall  pock  pitted  lad«  very 
Nik  batr,  and  wore  a  blue  coal  and  metal 
btUMtt,  an  otd  red  reHt^  and  breecUeA  of  lite 
Cidtiur.  1  would  own  my«<elf  under  many 
loot  to  any  friend  would  diHCorer  him ; 
ir^'n**  «ouib|  ill  order  lo  em- 
jiortunily  of  tfoini;  Hbrtiad. 
be  atayed  m  Mr.  Hu*fh 
'•  at  the  hack  of  ihe*Fountaiii-we)t ;  an 
^CVaa  you  have  any  regard  lor  my  interest, 
ittMueitd  all  ih;ii  wiali  the  cnimlry  w«  ll  ii»  he 
li  ittrela  of  him.  What  makes  my  confine^ 
Wl  ftry  uneasy  to  me  is^  that  this  is  the 
1^  of  tlie  ^ear  that  my  ouKiness  wmdd  re- 
fnvni^  ure^nce  must;  having  bou'fhl  ealtle 
(aliff^m  1  ye;^rly  «'eal)  in  ditlifeni  couMtri^s, 
s*4  taken  t^niMui^K  jiouth  for  the  cattle,  wliich 
I  iBwm  pay ,  it  t  ihould  never  send  a  hea.<(t  upon 
Hi  HhicU  I  (Mil  uf<aid  will  be  the  cuve  if  either 
My  «i»q  «ir  M4t  Ite  not  ailmiited  to  b>iil,  to  |iut 
^affairii  HI  or*ler'.  to  bt»[»i'»<  vou1i  K|iare  no 
puu  CO  llii«,  m%  Airdii  and  Appin  will  bail  me 
btD^  tom  wlutftcjr. 


ll   ^ 


i6||liai)i  to  any  friei 
M  ftniiaded  be  i»  u^ 
tasr  ibf  finit  oppor 
^^^at  Edadhirifh, 
^••trt'a  at  the  hack 


**  Your  return  IMI  eqiect  in  course  of 
post;  and  am,  with  complimeata  to  your  ludy 
and  self,  dear'Hir,  your  humlde  servant^ 

(Stgned)     *'  James  SriWAiT.** 

**  Fori  WtUiam,  May  19, 1752*'* 

Addresaed  thus:  **  To  Mr.  John  Mncfarlane, 
writer  to  the  signet ;    in  hiii  absence^  to  Mr, 
John    Flockh:irt,  his    prhicipnl    clerks  at  hif  ' 
bouse  in  the  Mint,  Edinburgh.'* 

Inverar^.  September  25,  1752.— This  is  llm  ] 
Li- Iter  releiTed  to  iu  colonel  Cniwfurd**  ofttb 
of  ibis  date. 

Follows  the  WnmNOft  produced  for  tbeI 
Kanpsel,  B£i?jG  Five  Lettetis  whote  to  ] 
Hill  6T  Colin  Campbell,  or  Glcmuhe. 

•*  GUnuftf  NovcMilftr  8,  t74S. 
*^8ir;  I  think  1  can   now,  >%iih  ioroe  cer*^ 
tainty ,  tell  you,  thai  I  am  appointed  factor  over 
ilie  lunds  you  posses.^,  ami  other  lauds  ibat  be*  I 
lonjfed   lo  your  brolher  Ardsbiel  j   aud  as  tht 
term  it  oow  at  band,  will  beg^  the  favour*  you  I 
desire  tite  teuanta  and  pusaessora  to  be  prepar*  < 
111^  the  rent*.     1  am,  8ir,  ymir  niovt  ouedtent 
bumble  servant.  (Signed) 

*♦  Cou?«  Campbell.** 

Addresseti  tliui:    **  To  Jamea  Stewart  ui 

Aucbindarrucb,  iu  I)umr/' 

'\Glenure,  October  H,  1749. 
**  Sir ;   As  [  intend  >1oaday  next  to  be  id 
Diiror,  to  hold  a  Immu-bai  he -court  on  the  es* 
tate  of  Aidiiliicl,  and  c^l  for  bygone  renU,  hnve  I 
sent  you  thin,  to  beg  the  fa  tour  yn\t  would  let  i 
the  tenants  know  of  ii,  that  they  muy  be  pre*] 
pared  to  make  pay  meuts,  aud  not  he  mil  of  th«  t 
way  ;  and  I  shall  be  i^M  to  ha«e  the  plea&urft j 
t>f  seeintf  you  at  Tayiiahcinaaig'  Monday  after*  J 
noon.     1  am,  Sir,  your  m«>«»t  obediejit  huuibte 
servant,  (Stgnad) 

**  CuLiN  CampdellJ^ 

Addressed  on  the  back,  *<  To  Mr.  Jamei 
Stew  art,  brother  to  Ardshiel." 

*»  Glenurt,  Dtitmber  it.  174^. 
*'Sir;  This  knomem  1   hiid  ^ourn  by   youf  | 
servant^  wjib  the  'iOt.  18«  bd  sierhutf,  and  iht ' 
warrHut  I  tsjrmerly  ifave   yon.      Iiecei%e  in*  I 
closed   yiiur  nule  :    your   p^ymeula  are    ver^ri 
'  i^ood,  Itji  which    I  am   obb^ed   to  you.     t  in- J 
lend,  God  will,  to  he  al  Ediubur|rh  on,  or  a  da/^ 
or  two  belbre  the  25lh  curreui  ;  ihal  ia,  i  io- 
teud  lo  »et  out  frum  llii*^  pla«;e  thi'<  day,  or  to- 
morrow ei^ht  day ^, and  will  i£i»l>y  Gla^iow, and 
make  no  slop  by  the  way.     Krmeinber  ladjr  | 
Ardsibiera  ditcbar^rs,  an*!  all  yunr  iHber  tackv 
ling.     I  heartily  winIi  you  a  if oimI  journey, 
(Signed)  "  **  CouN  Campbell.*' 

**  My  wife,  whu,  1  find,  is  your  sincere  well- 1 

wisher,  returns  you  her  beuriy  tlianki»,  aud  is  J 
ftorry  you  have  hud  iudi  bad  weather  to  travel^  \ 
wfheu  you  are  so  weak/* 

Addressed  on  the  back  thua :  "  To  Jattlt 
Stewu-t  in  Auchiudarrocb  to  Dtir^.** 


171] 


25t3£ORG£  IL 


Trial  of  James  Stetvarff 


[172 


"  Glenure,April6,.17SO. 
«  Sir ;  1  have  youra,  and  think  it  is  quite 
right  to^have  buriiemen:  tliey  are  frequently 
very  necessary,  and  can't  well  be  wanted. 
You  will  tlierefbre  appoint  two  discreet  honest 
men  fdr  that  pur|>ose  of  the  tenants ;  and,  to 
prefortiany  conoplaints  or  objections,  be  sure 
you  prear  them  to  fidelity  in  their  office.  My 
wife  returns  you  her  thanks  for  your  good 
wishes.    I  am,  8ir,  your  most  obedient, 

(Signed)    "  Colin  Campbell." 

Addressed  on  the  back  thus:    <'  To  Mr. 
James  Stewart  in  Auchuidarrocb." 

«*  Glenure,  March  14, 1751. 
<<  Sir ;  After  yon  left  this,  something  has 
occurred  that  makes  it  necessary  that  you  do 
not  set  any  part  of  Ardshiel,  Auchindarrocli,  or 
Aucharn,  till  I  see  you  after  my  return  from 
Jn?erary  ;  which  is  the  reason  I  run  vou  this 
express.  I  am,  Sir,  your  affectionate  liumble 
serTant,  (Signed) 

.  "Colin  Campbell." 

Addressed  thus:    "  To  James  Stewart  of 
Aucharn,  Duror." 


Then,  the  Proof  on  both  sides  being  conclud- 
ed, the  lord  Elchies  said  to  the  Lord  Advocate, 
that  now  was  his  time  to  proceed  to  give  his 
Charge  to  the  Jury ;  which  his  lordship  did  us 
follows.* 

Lord  Advocate  : 

Gentlemen  of  the  Jury  ;  It  now  becomes 
my  duty,  to  be  assisting  to  you  in  the  dis- 
charge of  yours,  by  staling  to  you  this  case, 
and  summmg  up  the  evidence  that  hath  been 
gifen  in  your  presence ;  which  I  shall  now 
proceed  to  do  as  well  as  1  am  able,  after  so  long 
an  attendance. 

That  attendance,  I  am  sensible,  must  have 
been  very  heavy  ujion  you,  and  hath  been  such, 
as  the  like  hath  not  happened  since  the  Circuit- 
Courts  of  Justiciary  were  brought  to  be  held  in 
this  county  :  but  1  hope  you  will  not  repine  ot 
the  great  fatigue  of  this  trial,  in  a  case,  whereof 
the  importance  is  as  unusual  as  the  length  of 
it ;  and  in  which  your  giving  a  just  verdict 
will  be  highly  for  the  service  and  credit  of  your 
country. 

I  need  not  resume  to  you,  gentlemen,  the 
libel  or  indictment,  whereof  I  presume  you 
have  been  furnished  with  printed  copies  before 
you  came  here ;  that,  being  thereby  informed 
of  the  principal  circumstances  which  have  been 
discovered  concerning  the  murder  of  Mr.  Camp- 
bell of  Glenure,  you  might  have  leisure  to  weii^h 
the  Import  of  these,  and  be  the  better  enabled  to 

*  N.  U.  By  the  16th  act  Anno  1071!,  con- 
cerning the  regulation  of  judicatories,  article 
tenth,  on  the  justiciary  court,  it  is  provided  in 
these  words :  **  That,  id  all  criminal  pursuits, 
tiie  defender,  or  his  advocate,  be  always  the 
laii  speaker,  except  in  cases  of  treason  or  re- 
bellion agiinii  the  king." 


attend  to  the  evidence  that  should  be  broogbt 
before  you  ;  and,  on  the  other  hand,*  the  pan- 
nel  James  Stewart,  who  is  now  standing  bis 
trial,  was,  by  that  libel,  fairly  informed  of  the- 
principal  facts  and  circumstances  that  were 
then  discovered  against  him,  so  as  he  migbl 
have  opportunity  to  account  for  these,  and  <£er 
himself,  if  notwithstanding  such  strong  appear- 
ances, be  was  truly  innocent. 

The  crime  itself,  which  gives  occasion  to 
this  trial,  was  of  its  nature  the  roost  horrid  and 
atrocious  that  can  well  be  conceived.  Wilfbl 
murder,  at  any  rate,  is  a  crime  most  heinous ;  * 
and  concerning  the  first  murder,  God  Almighty' 
himself  said  to  Cain,  "  The  voice  of  thy  bro- 
ther's blood  crietli  unto  me  from  the  ground.*' 
And  the  murder  now  in  question,  as  to  this 
panucl's  accession  to  it,  was  one  of  the  most 
causeless  and  un provoked  that  ever  happened. 
Poor  Mr.  Cam|»b6ll  of  Glenure  was  cut  off  in 
the  vigour  of  his  life,  in  the  very  roarJ  of  his 
duty  in  the  king's  service,  and  for  no  other 
cause  or  provocation  than  his  doing  that  duty ; 
and  then  was  he  basely  assassinated  by  a  ruf- 
fian, who  lay  in  wait  for  him,  and  shot  him 
from  behind  his  hack,  so  as  he  died  upon  the 
spot,  leaving  two  infant  children,  and  bis 
widow  pregnant.  And  to  this  horrid  violatMm 
of  the  laws  of  God  and  of  humanity,  is  to  be 
added,  in  the  present  case,  that  the  sole  ofiieooa 
taken  at  Glenure  was  his  acting  in  the  quaiitr 
of  factor  on  the  forfeited  estate  of  Ardshiel, 
agreeably  to  bis  powers  and  instructions  from 
the  barons  of  Exchequer,  as  being  administra- 
tors for  the  king,  whose  property  that  estate 
was  ;  and  it  was  resented  as  a  capital  injury, 
that  tlie  king's  factor  should  venture  to  exer- 
cise his  maj^ty's  property  as  freely,  as  every 
subject  may  do  his  own. 

And  last  of  all,  that  this  murder  was  com- 
mitted on  the  14th  day  of  May  last,  just  seven 
weeks  after  his  majesty  had  given  his  royal  as- 
sent, and  passed  into  a  law,  the  bill  for  annex- 
ing this  and  other  forfeited  estates  to  the  crown 
unalienably,  and  for  applying  the  rents  and 
profits  thereof  for  the  better  civilizing  and  im* 
proving  the  fJighlands  of  Scotland. 

The  clemency  of  the  kin^  had  been  extended 
early  after  the  last  rebellion,  by  the  ad  tf  • 
grace  of  the  20th  year  of  his  reign,  of  whick 
the  pannel  James  Stewart,  among  many  otben, 
had  the  benefit;  and  other  l^nefioal  lawn 
were  then  made,  to  secure  and  promote  freedofl^ 

{property,  and  good  order  in  all  parts  of  Scot- 
and.  And,  to  crown  all,  this  last  most  benefi- 
cent act  was  made,  for  the  more  immediate 
benefit  of  the  Ilii^hlands  of  Scotland,  out  of 
which  three  rebellions  have  been  raised,  since 
the  accession  of  the  royal  family  now  happily 
reigning ;  an  act  of  beiiefieeoce  not  to  be 
paralleled  in  history,  and  calculated  to  render 
all  the  inhabitants  of  the  Highlands  good  and 
useful  subjects,under  this  government,  by  mak* 
ing  them  feel  their  own  interest  in  being  ench. 
and  render! UQf  the  meanest  of  them,  who  will 
be  honest  and  industrious,  free  and  happy :  and 
at  such  n  juncture^  the  murder  you  i 


173] 


Jbr  Murder. 

_  into  receired  qo  sinali  aggravation,  aj 
K  was  flying'  id  the  face  of  the  legtalature  itself, 
■id  endcAfourioi^y  as  much  as  in  these  crimi- 
■ab  lay,  to  defeat  or  discourage  the  prosecution 
afancaaure  of  gOTernnient,  so  highly  gracious 
aadhcDcficiaj  to  this  country. 

TM  tralh  is,  freotlenaen,  that  though,  God 
he  praned,tbe  Highlands  of  Scotland  are  in 
this  age  leas  barbarous  than  they  have  l)een  in 
femcr tines ;  yet,  in  our  own  time,  there  have 
bcffB  nch  instances  of  remaining  barbarism,  as 
sarve  la  prove  but  too  strongly,  that  these  coun- 
iMsiaiid  yet  in  need  of  being  better  civilized. 
;  it  was  in  the  year  1734,  that,  for  an 
\  of  the  same  nature  with  what  was  here 
taken,  an  attempt  to  remove  certain  Macpher« 
sons  hvinip  on  the  estate  (»f  the  duke  of  Gor- 
din  in  Badenocb,  the  late  (jlordon  of  Glenbucket, 
bii  factor  or  tacksman,  was  invaded,  and  r«;- 
ceived  many  wounds,  givrn  with  intent  to  be- 
him  of  his  life,  thuui>h  he  chanced  to 


A.  D.  1752. 


[174 


Yoo  mast  all  rcmerubrr,  how  Imsely  captain 
'Monro  of  Cukairn  ivas  assassinated,  by  lying 
la  wair,  when  be  was  nctini:  in  his  duty  in  the 
king's  service,  soon  after  the  defeat  of  the  late 


AaA  yon  most  have  all  heard  of  the  late  barba- 

laos  enterprise  of  Robert  Macgregor  and  bis 

aceomplices,  in  carrying  oflf  from  her  own 

ksuMj  the  unfortunate  Jean  Kay,  a  young 

widow  and  an  heiress,  in  the  deptli  of  winter, 

aad  middle  of  the  night,  into  remote  parts  of 

Ikfe  Highlands,  and  causing  her  to  be  married 

ts  ikat  Robert,  a  person  of  no  fortune,  and  an 

aeiliw  lor  murder  ;    for  being  a  conductor  ui 

ithicb  attempt,  James  Drummond,  alias  Mac- 

gn|ar,  a  brother  of  Robert,  has  been  lately 

oiai«ied. 

Tbe  cicuse  offered  for  James  Macgregor, 
VM  the  aime  mistaken  principle  that  appears 
t^hnt  omled  the  unhappy  prisoner  at  the  bar. 
Itus  nii  that  James  3IacgTegor  was  actuated 
^  me  if  the  best  affections ;  he  was  seeking 
Mfcnsaal  advantage  to  himself  by  that  entcr- 
M^  bat  only  to  OMke  the  fortune  of  Robert 

iad  the  now  pannel  James  Stewart  con- 
cmi  a  moral  enmity  against  Mr.  Campbell 
rfCfcima,  for  disabling  him  to  provide  for  the 
k  of  hU  brother,  Charles  Stewart  late  of 
ted,  by  contributions  levied  from 
I  on  that  estate,  who  had  been  under 


Bn  alas !   what  a  delusion  is  it,  from  such 
I  to  be  led  to  commit  or  justify  the  most 
I  and  abominable  crimes !  the  care  of  the 
I  of  one's  kindred  is  doubtless  a  laudable 
and  even  when  that  good-will  is  ex- 
I  to  the  remoter  degrees,  and  enlarges  the 
•f  benevolence,  there  is  no  harm  in  it ; 
1  in  both  cases  it  be  conducted  with  jus- 
ibe^  aad  men  exert  themselves  to  serve  their 
'  ,  witbont  violating  the  rights  of  other  in- 
,  ^or  the  laws  of  society  and  civil  go- 
at;'  bat  ho  who  roba  or  defrauds  his 
r,  to  pvofida  for  bit  own  boiubohl,  or 


the  immediate  children  of  bis  own  body,  is  not 
the  less  criminal  in  the  sight  of  God  and  man, 
that  he  was  moved  by  an  affection,  in  itself 
natural  and  just,  but  which  he  pursued  in  a 
wicked  manner. 

And,  in  the  present  case  of  the  murder  of 
Glenure,  there  appears  to  have  been  no  rea* 
sonable  or  probable  scheme  of  advantage  fta  the 
familj/^  of  the  late  Ardshiel,  or  any  bmly ;  but 
that  it  proceeded  from  mere  wickedness, 
malice,  and  resentment,  the  most  groundless 
that  ever  was.  It  affords  a  recent  and  shame- 
ful instance  of  that  spirit  of  revenge,  which 
was  the  characteri>tic  of  the  barbarous  High- 
landers in  former  times ;  and  a  pity  it  is,  gen- 
tlemen, and  a  reproach  to  the  present  age,  that 
it  should  be  yet  capable  of  furnishing  such  an 
example. 

1  am  far  from  meaning  by  this,  that  the 
crimes  of  a  few  %vir.ked  persons  can  justly 
bring  a  general  imputation  on  the  whole  country 
where  these  were  committed ;  we  daily  hear 
of  most  horrid  and  unnatural  crimes  perpetrated 
in  the  parts  of  the  kingdom  the  most  wealthy, 
populous,  and  civilized ;  but  the  part  incum- 
bent on  the  country  where  such  things  happen, 
is,  to  purify  the  land  of  the  innocent  blooii 
with  which  it  is  polluted,  by  bringing  the 
gnilty  to  condign  punishment;  and  this  is 
M'hat  you  are  now  Employed  in :  and  as  you 
have  attended  to  tlie  evidence  patiently,  1  desire 
nothing  more,  than,  as  an  impartial  and  intelli- 
gent jury,  you  may  consider  it  carefully,  in 
order  to  discern  the  truth,  and  then  to  follow 
that  resolutely  according  to  the  conviction  of 

Jrour  own  minds ;  which,  if  it  lead  you  to  be- 
ieve  the  pannel  guilty,  you  will  do  justice  to 
your  country  by  saying  so ;  and  if  you  are  not 
convinced  of  his  guilt,  in  God's  name,  let  him 
be  acquitted ;  for  lietter  that  this  murder,  atro- 
cious and  scandalous  as  it  is,  should  go  alto- 
gether unpunished,  than  that  one  innocent  man 
should  suffer  for  it. 

In  order  to  lay  before  yoo  distinctly  the  evi- 
dence that  you  have  heard  of  this  pannel's  ac- 
cession to  the  murder  of  Glenure,  1  shall  tirst 
of  all  recite  the  state  or  situation  in  which  the 
deceased  and  the  pannel  stood  towards  each 
other,  previous  to  the  murder,  and  also  that  of 
Allan  Breck  Stewart  in  respect  of  |both  the 
others.  Sdly,  1  shall  point  out  to  you  the 
evidence  that  Allan  Breck  was  the  actual  mur- 
derer, which  I  admit  to  be  a  fact  that  was  in- 
cumbent on  us  to  prove,  in  ordtr  to  convict  this 
pannel  of  wilful  accession  to  it:  and,  lastly,  I 
shall  sum  up  the  evidence  that  has  been 
brought  of  that  accession,  and  examine  the 
force  of  the  defences  or  excuses  which  the 
pannel  has  endeavoured  to  prove. 

As  to  the  first  of  these,  the  situation  of  the 
pannel  himself;  that,  gentlemen,  you  partly 
know,  and  have  heard  proved :  he  is  a  bastard 
brother  of  Charles  Stewart  late  of  Ardshiel,  at- 
taiutcd,  who,  out  of  his  own  tenants,  and  those 
of  Dongal  Stewart  of  A|>pin,  hit  chieftain, 
levied  a  regiment  or  battalion,  at  the  head  of 
which  he  went  into  the  lata  rebelliony  accom- 


175] 


25  GEORGE  11. 


Tri^  of  James  Steiuartt 


[178 


panied,  amon^otlien,  by  this  iiaDuel,  who  bad 
the  benefit  of  his  majesty's  act  of  grace  or  in- 
demnity ;  whereby  be  was  left  at  liberty  to  re- 
main with  his  family  in  the  country,  whilst 
Ardshie!  himself,  the  attainted  person,  maile 
his  escape  into  foreign  parts,  leafiniif  at  home 
his  wife  and  a  family  of  children,  who,  as  Mr. 
Campbell  of  Airds  has  deposed,  were  all  young, 
his  eldest  son  being  now,  as  be  tliinks,  about 
eighteen  years  of  age,  and  consequently,  at  the 
breaking  out  of  the  late  rebellion,  must  have 
been  alraut  ele?en. 

The  late  rebellion,  as  you  all  know,  waa 
finally  suppressed  by  bis  royal  highness  the 
Duke,  in  the  spring  and  summer  1740 :  in  the 
year  followingf,  the  act  fesling  the  farfeited 
estates  in  the  king  was  passed ;  and,  in  1748, 
the  lands  of  Ardshiel,  among  others,  were  sur- 
veyed by  order  of  the  barons  of  the  exchequer ; 
to  the  property  whereof  a  claim  was  entered 
on  behalf  of  Alexander  the  eldest  son  of  Charles 
Stewart,  the  attainted  person;  which  claim, 
upon  answers  made  for  the  king,  was  dis- 
missed by  the  court  of  session :  and  thus  it 
happened,  that  there  was  no  factor  appointed 
by  the  barons  on  the  estate  of  Ardshiel,  until 
Colin  Campbell  of  Glenure  was  made  factor, 
by  commission,  bearing  date  the  2dd  February 
1749,  upon  that  estate,  and  also  upon  the 
fteighliouring  lands  of  Allan  Cameron  of  Cal- 
lart,  attainted,  and,  adjoining  to  these,  that  part 
of  the  estate  of  Lochiel  which  lies  in  the  shire 
of  In?erness,  to  the  southward  of  Fort- Wil- 
liam, and  betwixt  that  tort  and  the  ferry  of 
Ballachelish,  of  which  you  have  heard  so 
much,  upon  that  loch  or  arm  of  the  sea,  which 
separates  Lochaber  in  InFemess-shire,  from  the 
country  or  district  of  Appin  in  this  shire. 

Now,  as  this  factory  was  ufranted  full  three 
years  after  the  rebellion,  it  is  to  be  olMer? ed 
how  the  estate  of  Ardshiel  was  |>ossessed  and 
managed  in  this  interval ;  anil  this  ap|>ears  by 
the  oath  of  Alexander  Stewart  of  liineriiahyle, 
who  hath  deposed,  '*  That,  het'ore  the  factory, 
as  he  believes,  the  tenants  paid  their  rents  \o 
the  lady  of  Ardshiel.  and  that  she  again  em- 
ployed the  pannel  to  deal  with  them." 

It  was  during  this  period,  timt  the  pannel,  ate 
the  same  Alexander  Stewart  dqioses,  who  lia<l 
been  a  great  many  years  airo  tenant  to  his  bro- 
ther Arasbiel  in  the  farm  of  (jlentluror,  and 
had  been  removed  al-o  several  \ ears  ago  by 
hib  brother,  again  took  poMtession  of  tlie  same 
farm;  and  that  Ardshier?;  laily  anti  the  pannel, 
jointly,  intnxtuced  certain  new  tenants  of  their 
own  choice,  into  different  parcels  of  the  land, 
which  Ardshiel,  the  atuiiited  person,  had  him- 
■elf  occupied  before  the  relicllion. 

Again,  wlien  Glenure  had  obtained  this 
Ikctory,  after  he  had  been  for  some  time  abroad 
With  the  regiment  to  which  he  belonired,  in 
Flanders ;  and  being  now  come  home,  was  oc- 
cupfed  with  the  treaty  for  his  marriage  with 
the  young  lady  who  is  now  his  widow ;  he  did, 
«8  Mr.  Campbell  of  Airda  hath  depoM^,  for 
>  eorae  tine  eospkiy  the  now  peMwl»  as  his  sub- 
teter,  in  levying  Ike  MM  efArdihiil,  end 


letting  the  lands ;  anfl.  to  the  nme  pnrrae. 
the  said  Alexander  Stewart  deposcay  «*  That 
the  factor  gsf  e  tbe  pannel  the  opportunity  oC 
having  the  greatest  influence  with  the  teDanta 
of  Ardshiel,  more  th'iD  any  other  pcr^oB,  by 
allowing  the  pannel  to  aet  the  lands,  whidi  be 
continued  doing  to  Whitsunday  1751,  if  not  at 
that  time  also :  but  adds,  that  the  pannel'a  eon- 
nexion  with  the  family  of  Ardshiel,  gave  bin 
also  a  natuuil  influence  over  the  tenaota,  even 
before  Glenure'a  factory." 

The  use  which  the  pannel  made  of  tfaii  in-  . 
fluence,  natural  or  acquired,  appeara  partly 
from  the  evidence  of  the  same  two  geDtlemen ; 
for,  upon  this  article,  Mr.  Campbell  of  Airds 
hath  deposed,  **  That  the  pannel  told  him,  thtt 
whatever  was  made  of  these  rents,  over  what 
was  paid  into  the  exchequer,  was  accounted  for 
to  the  children  of  Ardshiel ;  and,  when  be  re- 
moved from  Glenduror,  he  told  the  deponent, 
that  he  had  reason  to  believe^  that  the  aaul  ex- 
crescence of  the  rents  would  still  be  accoontcd 
for  to  them ;  and,  in  that  case,  he  would  ba 
easy  as  to  his  own  removal." 

And  Mr.  Stewart  of  Innemahyle  dep«Mi 
upon  this  article,  '<  That  the  pannel  waa  again 
removed  by  the  deceased  Glenure,  the  factor, 
from  the  farm  of  Glenduror  at  Whitaunday 
1751,  and  tbe  lands  lett  to  Mr.Camphdl  sf 
Ballieveolan :  that  as  the  pannel  ia  thedcno- 
nent's  near  neighbour,  the  deponent  had  trt- 
quent  opportunities  of  conversing  with  bia 
touching  his  said  removal :  that  the  pannel  did 
not  exfiect  to  have  been  removed,  and  aecned 
dissatisBed  that  he  was ;  and  said,  he  believed, 
that  Glenure  wotdd  not  have  removed  him,  if  . 
(Mr.  Campbell  of)  Ballieveolan  had  not  senght  ' 
those  lands  from  him:  that  the  pannel  further 
said,  that  the  tenants  cfenerally  allowed  aome 
gratuity  to  Ardshiel's  children,  and  that  these 
lands  were  the  best  farms  on  the  estate,  and 
mosit  of  the  benefits  accrescetl  from  them; 
and  thoui^h  he  himself  could  be  provided  ef  a 
farm  elsewhere,  ^ct  the  children  would  be  de- 
prived of  that  benefit." 

lu  what  iiiaiiiier  thi^  removal  of  the  pan- 
nel, from  this  bentficial  farm  of  Glenduntr,  to 
t^hicli  he  had  last  entered  vince  the  rebeilion, 
without  any  lai^iiil  title  whatever,  was  bruugbt 
alwiiit,  ap|»ear8  from  the  instructions  to  Glennie 
from  tne  harons  of  exchequer,  pniducett  and 
proved  before  you ;  the  last  of  which  is  in 
thefie  words :  **'You  are,  on  no  condition  what- 
ever, to  lett  a  farm  to  any  of  the  friemls  (i.  e. 
the  relations)  of  the  forfeitiutr  person*."  And 
thou|(h  it  lie  true,  that  these  instructions  beer 
dateihe  25th  July  1751,  about  two  months  afler 
the  actual  removal  (»f  the  pannel  from  Glen- 
duror, these  were  nevertheless  the  true  cause 
of  that  removal ;  for  it  wasiiuown  orexpeflted 
by  the  factor,  that  he  would  receive  such  in- 
structions, there  having  been  notice  given  li 
the  lords  commissioners  of  the  treaaury,  ef  a 
considerable  possession  of  the  esUte  of  Lnehitl 
having  been  lett  to,  or  for  the  use  of  one  of  the 
brothers  of  tbe  attainted  perMm  ;  upon  wludi 
their  krdshipi  had  diraoled  the  bniou  of  Iht 


to  pird^iie  Mgmmi  the  like  hernjr 
tli»  fnmre,  in  ovAer  to  avoid  the  occa- 
of  cocitimtiD^  that  Iratlins:  or  intluence 
IliP  raXf^r  tnhthtUUiz  ilnise  eftaie«,  thai 
Ifieed  flci   mach  disturbance  apd  mis- 
public. 

it  «rB«  throuirh  tiecesaky,  and  in 

»  fi^iihral  tltfti^iinrgc  of  the  duty  «if 

iktftl  Mr«  CamjilK'n  of  Glennref  at 

or  in  Way  1751,  removed  the 

fitnii  hit  |ioS9eBsioit    of   I  he    Vnryi    of 

,  to  the  cnntinttattce  whereof  he  had 

tiiie  or  daim  wlinisoever  ;  nm\  also 

to  rmptoy  the  paiinei  no  logger  .is  hi^ 

lor  or  tsvintauti  m  ruaaagiiig  the  t-state 

'lid. 

to  cotioelve,  that  ihere  was  any 
iif  jtni  caiisc  giren  hy  this  condvTCt  of 
fnr  reiientiDent  or  hatred  from  this 
it   tiad  heen  tnie»  which  the 
1  J  In  Stewart  of  Jnucrnahyle, 

he  Wlieved,  Glen  tire  would  Dot  have 
fajmielf«  it  Balliereotan  had  nut 
m  f^tieited  tliia  po^sesiion  of  Gkndaror 
mild  yet,  that  the  pannel  conceived 
and  prosecuted  such  disposilion 
Otttrageoufi  m;intier,  hath  heen  now 
vou.  But,  Wfiiic  I  tncn- 
ntcnce  orihis,  1  must  pro- 
li  canse  of  diflefeuce  be- 
and  of  animosity  eon«- 
1 1»  tmm  the  aftei'proeeed- 
I  the  spring  of  this  fnp»»fnt 
pmr  ;  whtn  Hk  having  taken  the  re&olurion  |o 
iwiittf*  •  few  of  those  tenants,  who  hnd  been 
iMRMliieed  to  tli^tr  po^ensions,  as  I  liave  tni^n- 
H  ijuly  Hiid  this  nunnelf  in 
lie  rehetltou  Ann  the  date 
trs,  that  the  pannel  beinjj 
I'j  would  l€»i»sen  his  interest 
''i  peopte,  if  he  sliotild 
r  persons  in  the  po<i- 
ki..i4^etr  had  bestowed  or 
Umk  the  rr^liMion  to  oppose  these 
uliirli  he  profeculed,  hy  repre- 
I  ttn*!  :  ing  of  it  in  the  country  as 

ny  act  ■''  ^^  nmon^  liecao*.^  the  king's 
r  tiioagtit  tit  w»  remove  four  or  tire  tenants 
kmif  taltodiioH  itpon  this  estate,  who  had 
Am^  leases  nor  ohl  pos&essiotis,  to 
m  point  of  righti  or  in  point  of 
In  bo  contiuiied :  and  this  ground  less 
to  ihooe  remoiPings  the  pamicl  set 
i  and  c^Kidocted  at  hi«<  own  ex  pence,  and 
fifo  ttitoarlf  ^reat  a^tation  and  trouble  in  the 
MVrculioa  of  it,  hariag  gone  to  Edinburgh 
m  Apnl  tol,  on  parpote  to  present  the  bill  of 
mtftmmon  of  tbctse  removings,  whith  you 
hrm  bard,  setting  forth  mo&t  frivolous 
pmrndmi  artit  ^n  ih«H  ^viOiout  the  knowledi^e, 
I  tbr  the  expence  by 
((I  whose  names  he 
r  that  bill  of  !«u*£pf niton, 
i  al  Ivlinburgh  an  order 
Ibe  Inll  frum  ib^  lord  lluti  ordinsry,  that 
tra  •hiiuld  be  put  in  to  (he  same,  anit 
r  oliyiiig^  «<cCiitioa  in  the  iuterirn  : 
XIX. 


A.  D.  1752. 


[ITS 


ihsiMitrval 


■t%»Bbb     to  IX 

fihicti  i 


MylirHipti 
lit  teottivt 


MfOCI  } 
be  tin 


with  which  sist,  and  certain  td vices  he  had  re- 
ceived at  Cdinl>urgh,  fur  making  ajijilicntioa 
for  those  tenants  to  the  baronti  of  E\che<]tter, 
when  they  should  meet  in  the  begmning  of 
June,  the  panoel  returned  to  his  own  liouse 
on  the  27th  April ;  and  then  sent  (or  those 
tenants^  and  gave  them  notice  of  his  proceed- 
ings at  Edinburgh  on  their  account ;  and  that 
if  they  had  a  mind  to  continue  iUtrlv  pciBses« 
sions,  they  were  advised  to  go  to  Glenure,  and 
seek  their  possessious  (or  demand  such  con- 
tinuance;) and  if  he  did  not  grant  their  desirei^ 
th^y  should  send  for  a  notary,  and  f^o  with  him 
to  protest  against  Glenure ;  and  if  tbev  pleased, 
he  wouhl  send  for  a  notary,  to  wFiich  they 
agreed  :  and  accordingly  the  pannel  sent  for 
Charles  Steivart,  who  bsth  been  examined  on 
this  fact,  and  sent  him  along  with  the  tenauta 
to  Glenure's  Imuse,  where  l»e  intimated  tho 
sist,  and  took  a  protest  against  hiui  on  the  ist 
of  May  lasL 

It  was  upon  receiving  this  notice  of  a  sus- 
pension presented,  aud  a  sist  granted,  that 
Gfennre  repaired  to  Edinburgh,  and  put  in  his 
answer  to  the  bill  ;  upon  considerMton  of 
which,  the  bill  wns  refused  or  dis(ni«»5cd  by  the 
lord  Haining  ordinary;  nod  then  Glenure  re- 
turned to  his  own  house  on  JSuiurday  the  9lb 
May  last,  in  order  to  take  the  neces^ry  niea. 
Hures  for  executing  the  teraovings  that  ha4 
lieen  thus  opposed. 

This  part  of  the  panners  proceedings  it 
proved  by  the  oath  of  Charles  Stewart  his 
notary,  by  the  pauDel's  own  examinntions, 
which  you  have  heard  read,  and  by  Duncan 
Maccoll  in  Ardshiel,  one  of  those  tensnts,  whn 
bath  now  deposed,  **  That,  upon  himscit  adiI 
others  being  warned  to  remove  from  the  hnda 
of  Ardshifl,  as  at  Whitsunday  hst,  he  Ibi-  his 
part  h»d  no  intention  other  tiuu  to  snbuMt  to 
the  warnjog,  till  a  paper  was  procured  iVom 
Edinburgh,  which  he  heard  read  by  Char  J  est 
Stetvart,  notary  at  Aucharn,  as  on  a  day  ha 
was  there,  being  along  with  his  neighbours  fnU 
vertised  to  meet  there,  where  he  and  his  neigh- 
bours were  told  by  the  panoel  and  Charles 
Stewart,  the  notary,  that  the  puper  brought 
from  Edinburirb,  contained  advice  for  ttiose 
who  bad  been  warned  to  remove,  to  cominue  in 
their  possessions ;  and  that  they  should  go  to 
Glenure^  and  osk  the  same  from  hJm.  And 
deposes,  That  he  gave  no  alio  wan  ce  or  man- 
date to  the  pannd  to  make  any  application  at 
Edinburgh  against  the  removing:  that,  before 
be  beard  any  thing  of  this  paper  from  Ediu- 
burgtf,  he  had  engaged  to  serve  as  bouman  td 
the  tenants  Glenure  was  to  introduce  ;  but 
that,  on  hearing  of  this  paper,  he  preferred 
keeping  by  hts  neighboor^,  as  he  considered 
the  being  continued  in  hit  possession,  did  the 
law  flupfiort  him  in  it,  as  more  beneficial  to 
him  !  and  adds,  That  the  procuring  the  pap€r 
at  Edinburgh  cost  him  no  money.'* 

To  the  same  purpose,  John  Macconibicb, 
another  of  tbove  tenants  in  Ardshiel,  both  de* 
po^ed,  aud  adds  this  further  circumstanco^ 
«*  That  a»  to  bis  agreeing  with  the  iticotoitig 

N 


179] 


25  GEORGE  II. 


Trial  of  James  Stetoarit 


[ISO 


tenaots  to  be  their  boamin,  he  heard  both 
Glenure  and  these  teuanta  say,  that  it  was  by 
Glenure's  adfice  that  this  was  done  :"  which 
is,  by  the  way,  an  instance  of  the  humanity, 
with  which  Glenure  acted  on  this  occasion,  in 
being  at  pains  to  provide  bread  lor  those  per- 
sons whom  he  did  not  think  fit  to  continue  as 
tenants  on  this  estate  of  Ardshiel,  where  they 
bad  been  so  lately  introduced  by  the  paonel. 

These  then  were  all  the  causes  or  offence, 
that  after  the  strictest  enquirv,  can  be  disco?er- 
ed  to  ha?e  been  ever  given  by  Glenure  to  tliis 
pannel ;  namely,  that  Glenure  as  factor  upon 
this  estate  of  Ardshiel,  removed  the  pannel 
himself  from  the  farm  or  possession  of  Glen- 
duror  at  Whitsunday  last  year,  and  gave  over 
employing  or  entrusting  the  pannel  to  act 
VDuer  nim  in  the  management  of  the  lands  of 
Ardshiel ;  and  that  he  was  taking  measures  for 
removing  the  few  tenants  lately  introduced  by 
the  pannel,  at  Whitsunday  thu  year ;  which 
measure  he  persisted  in,  the  opposition  that  the 
pannel  was  pleased  to  make  notwithstanding. 
V  ery  strange  causes,  it  must  be  confessed,  for 
the  pannel's  conceiving  a  violent,  and  even  a 
mortal  enmity  against  Glenure !  And  yet  no- 
thing is  more  certain,  than  that  Tiolent  offence 
may  be  taken,  where  no  just,  or  even  plausible 
cause  for  it  hath  been  given  :  and,  from  the 
first  murder  recorded  in  sacred  history,  down 
to  this  now  in  question,  often  hath  it  happened, 
that  wicked  men  have  hated  their  brothers 

,  without  acause,  that  is,  without  a  reason  or  just 
cause,  though  there  was  always  anoccsMon,  or 
a  motive  such  as  it  was,  for  that  hatred  being 
conceived. 

Again,  it  is  to  be  considered,  that  occasions 
of  offence  operate  differently,  according  to  the 
education,  temper,  and  character  of  the  party 
who  meets  with  them ;  and  we  hare  now  heard 
from  tlie  evideuce  in  this  trial,  what  a  wrong 
way  of  thinking  this  unfortunate  pannel  is 
possessed  of,  in  holding  it  to  he  a  cause  of 
mortal  enmity,  that  a  man  should  he  removed 
by  another  from  his  farm  or  possession  which 
he  hath  no  manner  of  title  to  hold  or  retain : 
vhich  is  a  pr^udice  or  delusion,  that,  in  a 
lower  degree  prevails  elsewhere,  but  seeou 
to  be  in  a  particular  manner  prevalent  in 
the  Highlands,  and  was  the  cause  of  the  at- 
tempt made  by  the  Macphertons  to  assassinate 
Glenbucket  some  years  ago,  as  well  as  the 
cause  of  the  horrid  murder  into  which  you  are 
now  enquiring. 

And,  for  one  proof  that  this  pannel  is  deeply 
uoisoned  with  this  most  erroneous  opinion,  you 
heard,  gentlemen,  a  little  while  ago,  the  objec- 
tion that  was  by  him  made  to  Alocander  Stew- 
art senior  in  Lagnahaw,  one  of  the  witnesses 
in  the  list  served  upon  him,  and  called  up  to 
give  evidence  against  him,  to  whom  the  paonel 
objected ,  that  this  witness  bore  enmity  against 
him,  for  that  the  witness  wasformerlv  in  pos- 
session of  the  lands  of  Aocham,  woich^the 
pannel  now   holds  under  Mr.  Campbell  of 

•  Airda;  and  that  the  pannel  had  catised  the 
witness  to  be  removed  from  thai  ponanioD, 


and  succeeded  him  io  it :  an  objectiMi  19  itasif 
insufficient  in  point  of  law,  whidi  eaimol  sup- 
pose men  to  be  so  wicked  aa  to  eoterlain  mortd 
enmity  for  such  a  cause ;  and  thenfbro,  aa  yo« 
heard,  it  was  over- ruled  by  the  court ;  oot* 
withstanding  which  we  freely  passed  from  itm 
witness,  bemg  satiafied  that  we  had  erideiiee 
enough  besides,  and  unwillmg  to  leave  mf 
room  for  the  pannel  to  eompiauia  or  for  you, 
gentlemen  of  the  jury,  to  apprelMiid  that  ai^ 
one  witness  was  used  against  him,  of  whosfi  cm- 
dibility  there  conld  be  the  smalleat  np^Mojaii; 
but  the  very  moving  of  such  objeGlion  oq  Ike 
part  of  the  pannel,  affords  one  proof  itf  kii 
own  sense  of'  the  nature  and  degree  df  moh 
offence. 

Another  signal  proof  of  this  i^neara  ffomlbt 
oath  of  £  wan  Alacintyre,latoherdi|i  Qleniiiimr, 
who  hath  deposed,  **  That  ho  engagvi)  If  Is 
herd  to  Mr.  Campbell  of  BallieToolan  ia  Iba 
farm  of  Glenduror,  for  the  year  17j»l ;  aad 
that,  the  day  after  he  entered  into  his  acitisa 
there,  the  pannel  challenged  him  for  ^oeaptiif 
thereof,  and  told  him,  that  ho  woold  befit-Mdv 
with  him  sooner  or  later  for  doing  it ;  and  iMi 
if  he  did  not  meet  with  resentment  himatlf  ■ 
his  life-time,  others,  such  as  his  firicndi^  Wfkl 
meet  with  it  after  hia  death."  Aed  •«% 
'*  That  he  himself  was  never  in  thepemMl^s 
service.''  This  was  surely  canying  thia  dshh 
sion  to  a  mO(St  extravafi;ant  pitch,  and  sneh  Ci^ 
to  any  stranger  to  this  odd  way  of  tkinUeg, 
must  have  appeared  incredible,  till  he  heard 
the  proof  of  a  fact,  which  demonstralee  hew 
deeply  that  opinion  is  r(K)ted  in  the  mind  of  tUl 
pannel. 

And,  accordingly,  we  have  heard  how  thU 
was  farther  dis|>Jay(Ml  by  his  words  aed  bf  his 
actions  on  other  occamons,  in  respeot  of  the 
deceased  Glenure,  tor  the  causes  oir  offence  i 
have  mentioned,  by  the  evidence  I  shall  OOV 
point  out. 

And  lirst  of  all,  John  Bceck  Macooll,  the 
bouman  to  Appiu  (who  though  he  Uvea  u  ■ 
desart,  appeareid  to  me  to  have  given  hie  efi» 
deuce  in  a  most  natural  ingenuous  nennvi 
and,  by  his  own  words  and  behavioar  rehtsd 
in  it,  discovers  a  degree  of  sagacitv  whiebf  in 
a  person  of  hia  situation,  surpriaed  me ;  end) 
upon  the  article  1  am  now  8|>eaking  o<^  he  de* 
poses,  *<  That  in  a  conversation  tim  deponeei 
had  with  the  pannel,  as  the  deponent  beat  re- 
members, about  two  years  age,''  ^whetfier  he 
was  herein  accurate  in  the  cbronwogy,  in  nol 
essential  to  the  question  in  issue)  **  muntinj 
being  made  of  Glenure's  being  about  to.  lelie 
on  himself  the  management  of  the  estate  el 
Ardshiel  from  the  said  pannel,  and  therej^ 
disable  the  pannel  from  being  of  any  serfien 
to  Ardshiel's  children,  he  heard  the  pannel  anji 
he  would .  be  willing  to  spend  a  shot  apeR 
Glenure,  though  he  went  upoq  his  kneca  tp  hin 
window  to  fire  it:  and  farther  depoees,  tbetlm 
heard  a  waif  (that  ia  a  flying  or  nneeclRJft 
rumour  or)  re|)ort  in  the  conntryt  ^hat  Aid*, 
shiel  (the  attainted  peraon)  bad  sent  hamm  m 
menage,  that  he  beliefed  all  his  friends  wem 


181] 


Jht  Murder. 
WU  allowed  to  ffti  oo  Ai 

«iiolher  remirkable  conversation  of 
•aoef's  vsL  die  sume  spinit  but  earned  a 
4ail  fkriHer,  is  proved  to  jiive  happened 
dratmui  lAilt  175 1«  withtn  the  panoel^s 
Mvir*koi»««  M  Aneham,  betwixt  him  and 
iC  to  o«tn  Mrmnts,  who  all  coociir  in 
■filiftafr.^      T  'in  Wore  Maccoll,  Dou- 

fiH■enK«  ar  '<('t^  Malleoli ;  of  whom 

im  bilb  tifjupwwu,  *''TliAi  he  was  present 
If  %  oottttmsloii  tfnil  hrt|fpened  bet^^ixt  the 
Joliv  Begr  tnd  Doitj^nl  AlaccoUs,  both 
Co  flic  pannel,  in  his  brew- house  at 
,  N^We  day-lig:ht,  upon  a  morning 
Ysit  (or  Cbristmnt*)  last,  as  the  deponent 
PDMObim :  that  the  depc^nent  was  then 
te|ilo3fad  hi  diftirirng'  th^  second  draught  of  a 
Iff  aqmiirirte,  and  the  pannel  ordered 
In  (rife  him,  and  people  preaenl^ 
wliieh  the  deponent  did  :  that  the 
i«  Otenure  would  not  take  the  rent 
lilt  itiMflta  of  Aucharn«  part  of  the 
kecauae  they  had  givert  the 
lanrley,  which  Glenurc  iilled:cred 
heve  paid  him:  that  the  pan- 
it  was  hard  to  refuse  the 
itf  BitMtfy  froiH  tlie  tenants  in  a  scarce 
\  twf  OMerveit  that  it  would  be  of  no 
fitem^^liai^ce  to  him,  the  i.nTmf'l  (hough 
aAHMMr'bajek  Ibe  barky  irison 

f  v4ir  Ir  mild  be  to  the  t*  [  subse- 

iw,  i«l  caie  they  were  obh^d  to  pay 
%  bear  and  meal,''  (to- wit,  in  kind 
foiti'  i '*  and  i^ld  the  tenants 

►i»er»  ly   to  he  very  ill  off; 

ir,  if  GMmiro  w*;ut  on  in  the  way  he  then 
•I  w*j  Rkely  b«  would  be  laird  of  Appin 
t  a  ^f^rf  iliort  i  n<t  that  he  knew  unce  a 

Ml€f  <Mlllt  '  ^Pt^io  ^b<>   would  not 

ITImil^  tci  ^u  ou  atflueha  rate:    'Jo 
«lir   tirponetit  and  the  rest  answered, 
lliM*w  nu  ooinmoneri  in  the  country 
'  Blrive  or  eoutend  with  Glenure  to 

fWf»t>fiF nation  in  the  bit^w-house  '\h  flif* 
irjftti^  <!r  eiqitained  by  the  otiier  two 
NMlMtM*tfHlt :  and  John  Beg  Muccoll  adds 
IbiitCMhi^tTCt-,  ''  That  afler  he  and  Dug^aUl 
sqbU    •■  'le  hrew-hoone,  either 

_^     ^1^**'  '        iierenf^er J  they  talked 

mplfer  what  the  iiupor'  •  c>nversation 

I^M  li#  I  mud  that  ibe  ^\  a^  at  a  loss, 

^Mitr  meannid^r  it  %%  -  u^enietit  to 

dcsiiin^,  nr  a»  E^  >  ■-  .igainat  (he 

of  ApptOf  as  nru  t>f  nig  so  faithful 
leL  a^  he  ei  peeled  them  to  be  J' 
ba>  fr*?  '-T   ^    ,ir  conaideratioOt  gen» 
liHlit  Sn  Beg  Maccon  was 

M4b   tbe  rf|Eh.  >u  i-..  conjecture;  and  that 
f«fMti«^  can  rcceife  no  other  con- 
,  tbait  that  ttie  (mnnel  took  that  occa* 
ittiMli^fc  tbe«««erfintaof  his  own,  who 
•Mof  tm*  tr?tw,  to  resent  agrthist  Glenure 
'tnmon  people  of 
r  <       id  had  thus  re- 

aimI  ciJaiggcratad  to  tbem;   ckf  ftt 


A.  I>.  1752. 


fl&2 


Teaat  to  feel  their  pul^t,  and  try  how  tbe^ 
would  relish  Stieh  a  proposal  or  insinuation. 

But  farther  fitill.  the  pannel  continued  tc?  dia- 
cover  the  rnncour  with  wijich  his*  own  heart  waa 
filled  a^gj^dinsC  Glenure;  the  next  instance  of 
which  (hat  hnth  apji^ared  iipon  the  evidence, 
hftppened  in  April  laat,  when  he  was  on  hid 
road  to  £ldinhurgh,  with  intent  to  offer  a  bill  of 
suspension  of  the  removing  of  the  tenants  thai 
hath  been  mentioned:  and. here  three  circum- 
ttancaa  are  proved  hy  the  testimonies  of  A  lei* 
ander  Campbell  and  Ewan  Murray,  two  of  his 
landlords  or  innkeepers  by  the  way,  and  Colin 
IVfaclaren,  merchant  in  Stirling,  who  fell  into 
company  with  the  pannel  at  both  their  hoatet, 
and  travelled  io  the  panneWs  company  aonie 
miles  on  the  road  towards  Stirling* 

Alexander  Campbell  in  TeynalnJb  hath  de* 
posed,  **  That  in  April  last  the  pannel  called  at 
the  depoDeot*8  house  in  the  morning  to  have 
his  horse  corned  ;  and  having  calico  for,  and 
got  a  dratn,  which  was  afterwards  set  down 
upon  the  table,  one  flaclareni  a  merchant  in 
Stirling,  who  had  lodged  with  the  deponent 
the  night  before,  being  present,  asked  the  pan- 
nel, if  he  would  not  help  the  deponent  to  a 
dram?  and  the  pannel  answered^  he  did  not 
know  any  thing  that  he  would  help  the  depo- 
nent or  any  of  his  name  to,  if  it  was  not  to  the 
gibbet:  and  af^r  some  farther  conversation, 
the  deponent  said,  thbt  Glenure,  as  he  sup- 
posed, was  the  person  of  the  (deponent ^s) 
name  with  whom  the  pannel  had  the  greatest 
quarrd  ;  and  the  deponent  did  not  know  any 
good  cause  the  pannel  had  for  it.  To  which 
the  pannel  answered,  that  if  Glenure  had  used 
the  deponent  as  ill  as  he  had  used  him  ^the 

Cannel,^  hy  turning  him  out  of  his  possession, 
e  would  nave  no  less  quarrel  with  him  than 
he  had.  Aud,  upon  the  panne^s  interrogmto- 
nes,  the  witnrss  added,  that  at  that  time  he 
thought  what  the  prinnel  r>aid  proceeded  frotn 
malice,  and  that  the  pannel  was  then  pifrfectly 
Bober,** 

This  conrer^ation  was  confirmed  by  Colin 
Maclaren,  the  nierchant,  who  lodged  in  that 
house  all  night,  who  adds,  *^  That  the  pannel 
then  said  (speaking  of  the  Campbells)  that  he 
did  not  chuse  to  be  an  executioner,  hut  be 
could  draw  down  some  of  their  feel ; — and  that 
at  tirst,  during  this  conversation  in  CimpbeH*f 
house,  he  thought  that  the  pannel  had  been  in 
joke,  but  afterwards  it  was  like  to  become 
vety  serloas;  for  the  landlord  and  he  cauie  tu 
pretty  high  words  toffelher.*' 

The  next  landlord,  Ewan  Murray,  at  the 
west  end  of  Lochem,  hath  clepr>sed,  "  That  in 
April  last,  the  panne?,  and  Colin  Maclaren, 
merchant  in  Btirling,  came  to  the  depunent's 
house,  and  tlie  pannel  lold  the  deponent,  that 
Glenure  had  warned  away  sercral  fnuiilies  in 
ArdMifers  estate  to  remove:  .ind  itu»t  he  was 
tnfbirned,  that  none  of  the  i  the  thr- 

ieited  estaien  had  power  to  n:  tenants; 

and  that  he  was  going  to  Edtnburuh  to  take 
advice  of  lawyers  about  it  \  and  if  he  had  not 
thAt  poweri  tbtt  the  piuiiiel  would  apply  lor 


183] 


35  GEORGE  II. 


TruU  qfjanut  Slewirt, 


[181 


suspension  in  his  own  name,  and  in  name  of 
ttie  r.  Bt  of  the  leoaDts :  and  ibe  conversation 
turuin^  upon  an  officer  in  the  army  that  was 
braindi'd  «iih  cowardice,  and  liad  been  broke 
on  ihatacciiiiiit ;  the  pannei  said,  that  he  bad 
reason  to  sa^',  that  Glenure  was  as  flrreat  a 
c'0.«ar<l,  as  that  officer  ;  for  tliat  be,  the  pannei, 
had  riiulif  n^bd  bim  to  lii^ht  him,  which  Glenure 
deciinfd  ;  and  ilesired  the  deponent  to  tell 
Glenure,  that  he  had  told  him  so :  but  the  de- 
|ioiient  answered,  that  he  would  not  carry  any 
such  mcssaf^e  tVom  one  |;entleiuan  to  another : 
aud  from  the  conversation,  the  deponent  on- 
derstood,  that  the  arms  with  which  the  pannei 
had  challenged  Glenure  to  fight,  was  with 
pistols.'* 

And  it  is  true,  gentlemen,  that  this  witness 
adds,  upon  the  pauncl's  interrojratory,  **  That 
he  thou{;lit  the  pannei  was  a  little  concerned 
with  drink ;"  but  it*  it  was  so,  turn  verdt  voces. 

This  conversation  is  again  confirmed  by  Mr. 
Macloren,  the  pannel's  fellow- traveller,  in  both 
the  parts  of  it ;  who  adds  this  circumstance, 
that  the  latter  part  of  the  conversation  hap- 
pened upon  the  road  after  they  left  that  bouse, 
and  Murray  the  landlord  rode  some  part  of  the 
way  along  with  them :  and  then  Mr.  Maclaren 
deposes  to  a  tliird  conversation  betwixt  himself 
and  the  pannei,  in  these  words :  '*  that,  after 
parting  with  Ewan  Murray,  in  the  course  of 
their  journey,  the  deponent  found,  that  the  re- 
moving was  much  at  the  pannel's  heart,  and 
the  deponent  endeavoured  all  he  could  to  divert 
the  conversation  to  another  subject :  that  the 
pannei  told  bim,  that  if  he  failed  in  a  suspen- 
sion at  Edinburgh,  he  would  carry  it  to  the 
British  parliament ;  and  if  be  failed  there,  told 
bim,  after  a  little  pause,  and  with  an  emphasis, 
that  he  behoved  to  take  the  only  other  remedy 
that  remained." 

These  last  words,  gentlemen,  need  no  expla- 
nation ;  for  surety,  after  the  judgment  of  the 
British  parliament,  no  other  legal  or  lawful 
remedy  could  remain. 

And,  as  to  the  condition  of  the  pannei  during 
these  conversations,  Mr.  Maclaren  farther  de- 
poees,  **  That  he  did  not  think  the  pannei 
drunk  either  in  Campbell's  house,  or  in  Ewan 
Murray's  house  ;  but  after  leaving  Murray's 
house,  the  V  drank  two  or  three  drams  at  l  dram 
house,  and  afler  that  the  deponent  thought  him 
much  concerned  with  liquor ;  and  it  was  after 
taking  these  drams  that  the  conversation  be- 
tween Murray  and  the  pannei,  with  respect  to 
challenging  Glenure,  happened ;  and  that  the 
deponent  and  the  pannei  had  rode  several  miles 
together  before  the  conversation  about  the  Bri- 
tish parhament ;  and  the  deponent  thought 
him  even  then  still  concerned  with  drink:*' 
and  very  likely  it  was  this  that  threw  the  pan- 
nei so  much  off  his  guard  as  to  speak  out,  to 
his  landlord  and  his  fellow-traveller,  so  much 
of  what  lay  deeply  at  his  own  heart,  and  to  tell 
upon  himself  this  matter  of  fact  about  the 
challenge  be  had  given  Olenara  to  fight  him 
with  pistols. 
Aucbappearing  to  hare  been  the  temper  and 


disposition  of  the  pannei  towards  Glcnue  in  the 
month  of  April  last,  and  before  that  tiaie ;  I 
shall  next  point  out  to  you,  gentlemen,  the  evi- 
dence concerning  that  of  his  friend  Allan  Brack, 
who  himself  does  not  appear  eier  to  have  had 
any  acquaintance  of,  or  intercourse  with  Gle- 
nure in  his  life,  but,  by  the  pannel's  own  shew- 
ini;,  was  his  kinsman,  and  had  been  bis  ward  or 
pupil ;  and,  bv  Breck's  character,  and  his  then 
situation,  as  being  engaged  in  foreign  aervioe^ 
aud  not  at  Uberty  to  Eve  openly  in  this  king- 
dom for  any  long  time,  though  be  went  about 
among  his  highluid  friends  without  any  scruple, 
he  was  a  fitter  instrument  of  the  vengeance 
meditated  against  Glenure,  than  the  Maccollt 
the  pannel's  own  servants,  or  any  of  the  oom« 
mon  people  of  A|ipin,  could  be. 

And,  concerning  this  Allan  Brack,  John 
Beg  Maccpll,  one  of  the  pannel's  aervanlB, 
hath  deposed,  **  That,  in  March  last,  he  i 


to  the  pannel's  house,  late  in  the  cveniqr« 
dressed  in  a  blue  coat,  red  waistcoat,  blade 
shag  breeches,  and  a  feathered  bat,"  (that  is  in 
his  French  dress,  which  the  witnesses  call  a 
side  or  long  coat,  in  opposition  to  the  blaok 
short  coat  with  silver  buttons  belonging  to  the 
pannei,  which  he  was  afterwards  seen  in ;  and, 
upon  this  his  first  arrival,  the  wimess  proceada 
to  depose,)  «« That  he  looked  into  the  kitcbcB, 
and  went  immediately  to  the  room  where  the 
pannei  and  his  family  wera ;  that  afterwards  he 
used  to  go  through  the  countrv  to  diffeicnt 
places,  and  came  frequently  hack  to  the  pao- 
nel's  bouse:  that  once  he  remained  tbore  ■ 
week,  which  was  tlie  kmgest  time  that  he 
stayed  thera  at  one  time." 

Here  b  then  the  intimacy  still  subsisting  |ie- 
twixt  the  pannei  and  Breck,  that  natniallj 
arose  from  the  acknowledged  connection  be- 
twixt them ;  the  pannel's  house  was  his  head- 
quarters in  the  country  of  Appin,  from  wbenot 
he  made  his  excursions  to  visit  his  other  friendi 
in  those  parts ;  and,  during  the  pannel's  ab- 
sence on  his  journey  to  Edinburgh,  Breck  went 
over  to  see  his  relations  in  Rannooh.  And  it 
hath  appeared  upon  the  evidence,  how  tho- 
ronghly  Mr.  Breck  espoused,  and  entered  into 
the  notions  and  sentiments  of  his  old  guardian 
and  friend  the  now  pannei,  with  reapeoi  to 
Glenure. 

And  on  this  head  Duncan  Campbell,  change- 
keeper  at  Anuat,  deposes,  **  That,  in  the  month 
of  April  last,  the  deponent  met  with  Allan 
Breck  Stewart,  with  whom  he  was  not  befora 
acquainted,  and  John  Stewart  of  Auchnacoan, 
at  the  house  of  the  walk-miller  of  Achosragan, 
and  went  on  with  them  to  the  house ;  that 
Allan  Breck  said  that  he  hated  all  the  name  of 
Campbell;  and  the  deponent  said,  he  had  no 
reason  for  doing  so ;  but  Allan  said  he  had 
very  good  reason  for  it :  that  thereafter  they 
left  that  liuuse ;  and,  after  drinking  a  dram  at 
another  house,  came  to  the  deponent's  house, 
where  they  went  in,  drunk  some  drams,  and 
Allan  Breck  renewed  the  former  conversation  ; 
and  the  deponent  making  the  same  answer, 
Allan  laidy  That  if  the  deponent  had  any  re« 
1 


Itf  J  ^^^^^      fof  Murdtr. 

muA  $ut  Mi  fnifiditv  lie  would  tell  them,  that 

J  Ik&fnlhr^  Ml  lorn  otil  Uie  pusiMessoni  of 

Mriliiir<  etl»le,  he  irciuld  make  bUck  cfK;ke 

•f  ihm  liefi>re  liiey  entrred  ititu  potsesiion  ; 

Iff  tvhicb   tbe  ile(>oaeiit  understood  ehooling 

lMi,ililtiiMf  •  eommon  \>hrMti  in  the  «t»uii- 

I  try :  iImA  JoTin  Stewart  said  lie  did  not  blame 

ijj^aigw  «a  mucii   as   Daltieveolan,  for  taking 

H^B  fmmamious^  wbrreiui  Gleaure  was  doing- 

^^Ei^t«erti€«:  and  Allan  Breck  replied,  tbat 

^^BhIImIv  be  b*<i  another  ^ound  of  quarrel 

^HmI  GiMiarc,  for  writings  to  colooel  Craw- 

mi^lksl  bit,  Albn^   ivas  come  home  from 

Fnsoe  i  ha^  that  he  wfts  too  <*UQtiiiig^  Tor  him  ; 

Utihaif  wImo  At  Edinburgh,  he  had  made  up 

hii  pisei  intli  general  Churchill,  and  htd  got 

hit  pMVt  itliicli  lie  had  m  his  pocket-book: 

ikm  Qm^tfmumi  aiked  a  iiqfht  of  it ;  that  he 

•i»cbe4  libDOCiket*hook,  but  conld  not  find  it ; 

v^mk  iilttcti  lie  lore  a  leaf  out  of  the  book,  and 

■aIiI,  ibnv  is  vraa.     And  deposes,  that  he  said 

iwvoAj  tHMi  mer,  he  would  be  fil-sidtss  with 

0kfMit«  mktn  >ter  he  met  hinii  and  wanted 

Ibiiii  to  meet  him  at  a  conte* 

ceareraation   is   contirtned    by   Anne 

.nttotlic  ^aid  Duncan  Campbell, 

'<  t,  Tt  -Isf-  heard  Allan Breck  then 

Il«  I  shun  Glenure,  where- 

huix  ,  L ;   ^vbich  she  understood, 

dal  l>e  mwm  t«  do  hurt  or  barcD  to  Gleaure, 

«f«T  he  «iw  him." 

in  i«  further  contirmed  by  Angun  Mac^ 
,1k -miller  mentioned  by  Duncan 
f«ert  Stewart,  a  fourth 
t  >iii[iany,  who  adds  in- 
AlUu  Bteck  was  much  in  drink  at 
•f  otleritig  the  abore  cxpreasiof&s  *  but 
i«y  aee  nnt  ihe  leai  to  be  regarded  in  this  Iriat, 
%h«  tlie  oceaatofi  of  theM  threats,  the  repe- 
liiaa  eC  thvin,  and,  butt  of  all,  tha  fiital  cjtecu- 
linkal^  heett  at  the  aumc  time  proved  before 

like  converftatioo  of  Allan  Breck*s 
to  hftve  happened  at  the  hou»e  of 
llfteooil,  change- keeper  at  Portua- 
tMtkf  hf  fbe  landlord,  and  by  Anne  hU  wife, 
«l#  iipfc,  '*  Tb4l«  one  momiDg  in  Apnl 
t«l«  Attan  Emk  beinff  in  hii  house  with  John 
i«bit  UmccolT,  then  servant  to  the  de* 
Into  the  comjiaoy  in  a  shabby 
i  llial  Allan  Breck  a«ked  who  he  was? 
IB  lb*  Mil  John  Stewart  etiswered,  that  he 
viiaB  baaiest  poor  man,  with  a  numerous 
taijr  of  aoiall  children,  and  thut  it  would  be 
fiHI  dianty  10  any  boily  to  ai»tHt  him  ;  tipon 
wkilli  Atlaii'flrrck  dchiretl  ihc  $aid  Jabn  8tew- 
«t  la  gite  tli«<  aaid  Juhn  Maccoll  a  stone  of 
•■y,  and  be  would  pay  for  ii,  which  llie  said 
Sikm  Mtcwan  iirfiini^i'^il  in  ihi  i  tiuu  ihe  tiaid 
lAien  f  u  L  dram, 

"  "ii»tij   i'    'I     <, :  ,  I,'  V  'I  ,,    :'.;]■   tlie  red 
lid  givw  him  what  was  much 
mr^  that  ihcf  gave  no  great 
time  eac';  aX  thf*  time  ;  but, 

the}'  keAfd  of  '  murder,  believed 

Okoti(«t  a»  he  vtas  oomtuouly  caUed 


A.  D.  1752. 


[IfiO 


I  Colin  Roy,  which  means  Ited  Colio,  to  iht 
country," 

A  third  and  very  remarkable  instance  of  Al- 
lan Breck^s  conversations  on  this  suhjecr^  wat 
one  which  he  held  with  two  of  the  panner%  ter* 
vants  above-mentioned,  Dugatd  and  John  ^Ior6  . 
Maccolls  ;  whereof  the  former  dep06e*|  **Thal 
a^  he  and  John  >]accoll  were  harrowtog  in  a 
field  belonging  to  the  pannet  at  Anchftrn^  being 
the  same  day,  or  the  day  after  the  paime!  went 
for  Edinburgh,  (that  h,  on  tlie  3d  or  4^1  of 
April)  Allnn  Breck  Stewart  walked  for  a  good 
time  about  the  field ;  and  as  they  were  loosing 
their  horses,  the  said  Allan  Breck  and  they  en- 
tered  into  conversation  about  France,  and  |)eo- 
pte  from  this  country  there;  and  John  Blore  , 
Maccoll  aakeil,  if  there  waa  any  prospect  of  any 
of  them  coming  back?  Upon  Allan  Breck 's 
answering,  he  was  afraid  tbay  would  not,  John 
More  said,  he  wished  that  none  had  ever  come 
from  that  country ;  in  which  the  said  Allan 
Joined  him,  saying,  it  bad  dispersed  ihe  friends 
he  most  regarded  ;  and  (then  added)  that  it  waa 
a  particular  misfortune,  that  the  manacfement 
of  any  concerns  they  left  behir>d  Uiem,  fell  into 
the  hands  of  one  that  w&s  about  to  shew  tbeiD 
no  manner  of  favour;  and  declared,  Uiat  be  ' 
meant  Glenure ;  mid  told,  that  the  commonerv' 
of  Appin  were  little  worth,  when  they  did  not 
take  him  out  of  the  way  before  now  ;  and  upon 
their  saying,  nobody  would  run  that  risk,  not 
knowing  who  would  stand  by  them,  Allan 
Breck  answered,  that  he  knew^how  to  convey 
out  of  the  way  any  person  that  would  do  »0|  ' 
that  he  would  never  be  catched  ;  and  also  Aaid» 
that  they,  and  the  tribe  they  were  of,  (meaning 
the  Maccolls)  were  not  like  to  he  the  least 
sufferers  by  Glenure^s  proceedings.*' 

John  IVlore  Maccoll  aweary  to  the  same  con- 
versation at  the  harrowing,  and  deposes,  that  • 
Allan  Breck  then  said,    If  they,    the  cotn- 
mooers  of  Appin,  were  worlh  tiiemselv^,  rhey'  I 
could  keep  out  Glenure,  and  hinder  him  from 
oppressinjLf  them  ;  in  which  case  they  would 
noi  be  banished  from  their  natural  possessions  ^  | 
and,  upon  ihe  deponent's  answering,  he  dtd^  I 
n4t  see  how  any  body  could  pretend  to  strive  or*  I 
slriiggle  with  Glenure  in  that  way,  as  he  had 
the  laws  of  the  king  and  country  for  him,  and 
nofiody  to  support  or  take  them  by  the  hand  1 
aAer  their  so  doing,  Allan  said,  he  had  it  in'1 
his  power  to  save  or  protect  any  budy  that   j 
would  put  Glenure  from  trampling  upon  ihe ' ' 
country  in  the  manner  he  then  did,  * 

Here  then  was  Allan  Breck  Ihe  pupil,  in^ 
spring  last,  a  few  weeks  before  the  murder  hap-« 
pcned,  speaking  the  very  same  lunguige,  tod 
u^iog  the  same  argumenta«  with  two  of  theao' 
Maccolls,    the  servants   of  the  panne),   withal 
which  the  pannel  himself  bad  been  praciisinif^ 
upon  them  in  his  own  brew-house  about  Christ-  m 
mas  likat ;  and  this  conversation  of  Breck 's  was 
not  like  the  former,  after  drinking  drama  ml 
change ^houaea,  but  when  be  was  sober  and^ 
ct>ul,  walking  in  the  tields  about  the  pAnnera^ 
house,  which  waa  in  effect  his  home.  < 

And)  to  the  evidence  on  this  article,  naaj  be 


18' 


7J 


'25  GEORGE  II. 


Trial  of  James  StetMirtt 


[188 


added,  what  the  panncl  himself  bath  declared 
ut  hiR  fiivt  examination  belore  the  sheriff* sub* 
tititute,  which  has  beeu  proved  and  read  id  your 

tiresence,  when,  being  interrogated,  **  It'  he 
lad  any  conTerMUion  with  Allan  Breck  con- 
cerning Glenure?  be  answered,  That  tlie  said 
Allan  asked  tke  dedarant,  if  be  beard  that  Ser- 
jeant MoK  (Cameron)  was  come  from  France, 
or  if  be  waa  ui  the  country  of  Appin  ?  To 
which  tlie  deckreal  answered.  That  he  did  not 
hear  be  was  in  Appin »  but  be  heard  be  was  in 
Glenetif  e  last  year ;  whcreapon  the  sud  Albin 
lold  tlie  declarant,  that  aerjeant  More  swore  he 
woubi  kill  Ulenare,  berause  of  the  treatment 
lie  gave  the  ImeetieD  the  estate  of  Mamore, 
pari  of  Lochiai  estate.  Declared  also,  thai  the 
aaid  Allan  Breck  threatened  that  be  wonki  chal- 
lenge  Ballieveolea  and  his  sooa  so  fight,  be- 
cause of  hia  reaiof  ing  the  declarant  Ust  year 
froB  Glenduror,  and  being  about  to  remove  the 
other  lenanta  this  year  from  some  other  parts 
of  the  cstau  of  ArdshieL" 

Now,  aa  to  the  mention  here  made  by  the 
eamiel  of  aerjcant  More  Cameron,  I  sliall 
nereafter  have  occaaioa  to  take  notice  of  the 
oae  the  pannel  made  of  it ;  but  have  here  onlv 
to  obierve,  that  the  oausea  of  offence,  for  which 
the  pannel  saya  Breck  threatened  to  fight  Bal- 
lieveolan,  were  the  venr  nroe  which  tlie  pan- 
nel himself,  aa  well  as  Brack,  resented  an  high- 
ly against  Glenura,  namely,  the  removing  the 
pannel  bimwif  from  Glenduror  the  last  year, 
and  being  about  to  remove  other  teoanta  of 
Ardsluel  this  year:  and  though  the  pannel 
carefttlljF  avoiiksayime  any  thing  of  Breck's 
threatanings  against  Glenore,  efter  he  bad  been 
actually  murdeied,  and  bad  attempted  to  throw 
the  suspicion  of  that  upon  aerjeant  More;  yet 
here,  by  the  pannel's  own  ahewing,  Breck  had 
eotered  thoroughly  into  those  quanrels  of  his 
for  the  actual  removal  of  himacif,  and  tlie  in- 
tended removal  of  others,  and  threatened  to 
challenge  and  fight  BaUieveofam  upon  that  ae* 


And  aa  to  the  other  ground  of  qnarrcl  agniaat 
Gleniire,  which  Allan  Breck  mentioBa  in  ooe 
of  the  above  ceaveiaatiens^  neaaely,  for  his 
snnpoaid  writing  to  coluaei  Crawfuni,  that  he, 
AiUu,  wai  ooese  home  from  France,  I  shall 
nM  lake  upon  me  to  explain,  or  to  geese  in 
what  manner  Allan  Breckceaaetobeposseaeed 
with  such  a  conceit ;  because  we  have  beard 
no  evidence  coocciaiog  the  nsaneer  in  wluch 
he  received  sneh  piece  of  faise  informaiioo  or 
inielligence ;  for  that  it  was  false  hath  been 
fuUv  proved  belbre  yea. 

ArsK  of  aU,  coUnc4  Crowfiml  hinelf  ^^  be- 
iiK^  asked  whether  tkedeceeaed  CoknCamp. 
bell  of  GIsMMC  ever  told  kinft,  that  Allan  Bveck 
deserter,  and  in  this  eoueinr. 


Slewart  was  a 
haih  answered  upen 

And  next,  Mr. 
Msed.  ^'ThaA,  ii 
maa  ealanci  Crowta^ 


in  the  negnlive." 
9i  AM  hmh  de- 


it  was  so :  that  the  deponent  did  enqnire,  and 
wrote  the  colonel  for  answer.  That  he  bend  be 
had  been  in  the  cooatry,  but  that  he  waa  than 
eone  away :  that  this  was  in  •the  menik  sf 
April,  to  the  best  of  the  deponent's  reaseai- 
branee ;  and  it  seems  about  that  time  AllaA 
Breck  Stewart  had  gone  to  Hannech,  whiek 
gave  occasion  to  the  deponent's  being  informed 
that  he  was  gone  away,  and  did  not  hear  ef 
his  having  returned  to  the  country  till  afhar 
Glenure's  murder ;  and  thinks  he  wrote  aha 
to  cokinel  Crawfuitl,  according  to  the  infecmn^ 
tion  he  bad  got,  that  Allan  Breck  Stewart  wat 
in  use  of  coming  crery  year  to  the  eemlry 
since  Ardshiel  went  to  FnMceL" 

And  Alexander  Stewart  of  Innemahyle  de- 
poses, «'  That  he  lemembers  that  Allan  Break 
Slenart  came  over  to  thia  cenntry  a  year  at 
two  ago,  and  stayed  asmc  weeha  among  Ms 
friends ;  but  neither  at  that  time,  nor  the  krt 
time,  did  he  seem,  so  far  aa  the  deponent  a^ 
served,  to  be  in  any  apprehension  of  bei^ 
taken  ;  only,  as  he  had  been  once  in  the  anty; 
he  did  not  chose  to  meet  witli  any  of  the  knifli 
troops." 

And  besidee  all  this,  it  hath  appeared  in  the 
proof  before  you,  that  Brsck  Stewart  remalnad 
in  the  country,  as  usual,  a  lull  month  or  asaM^ 
after  be  had"  mentioned  the  aoppoaad  nolist 
given  concerning  him  by  Glcnnre  te  eelenrf 
Crawfuni ;  and  it  bath  not  been  proved,  or  emi 
alleged,  that  in  pursuance  of  that  notiee,  whn- 
ever  gave  it,  tkero  was  any  aearch  made  far 
Brack,  or  the  smallest  disquiet  given  tn  hun# 
or  any  alarm  or  precaationa  taken  by  byn,-  til 
after  the  murder  of  Glenure.  To  aaj  nathiap 
thereftro  of  the  injustice  of  that  cauae  of  m^ 
fience,  had  it  been  true,  that  Glenure,  n  goiA 
subject  to  his  majeUr,  formerly  a  military,  ani 
still  a  dvUoflieer  in  his  service,  badi^vennn* 
tice  to  the  commanding  officer  in  a  n«tfkb 
ing  garrison,  of  auch  a  person' as  BrecC  S 
art,  a  late  rebel,  a  deserter,  or  a  French  i 
saiy  possabiy  for  raising  recruits, 
faaely  come  into  that  oonntry;  I  have  only  le 
ebaerve  on  this  occasion,  that  in  fact  it  ia  inGro-> 
diUe,  that  Breck  Siewnrt  himself,  upon  a  bane 
surmise,  which  was  net  true,  that  Glenure  had, 
given  such  notice  to  cokmel  Crawfurd, 
upon  which  no  molestation  tbilowed  te  1 
should  have  conceived  or  proeecuted  a 
hatred  against  Glcnnre;  and  tberdore  the  I 
cense  of  that  enmity  must  have  beeitihe « 
main  ouairel  or  cause  of  oflence, 
first  taken  up  by  the  now  pannel,  i 
adepled  and  csesejed  by  Breck  in  the  nannar 
that  yon  have  heard. 

And  for  the  truth  of  this  obmnaiiun,  wv 
have  the  authority  of  the  pannel  himself,  wto 
had  ihe  best  opportunity  to  be  tboroufhly  aa«' 
qeaimed  wnh  Allan  Brock's  sentiments;  fart- 


in  the  pannei's  evasainaiion  that  hath  I 

yen,  he  says,  ••  That  bow  soon  the  4n>* 

\i  heard  of  Gknnre^saauidcr.ii  canwiMer 

hi  seyent  Mere  hed  dene  it,  h»- 

I  BNckhedtaMhim.th«itheariii 

whindjiiiamtegii 


A.  D.  1751. 


[lOO 


'  froai   Pranc€,  upon 

e'i  trtnUneni  of  Lrficluers 

» MIeriaff  Willi  Jobn  Cameron 

ttkmt  to  Loch  id.    That  ihe  de- 

f<or  tuipectio^    Atkfi    Orecic 

bfCftiiHC  he  left  the  country 

Uikin^  tefeve  o\  htm,  m  he 

if  ibe  suiA  Allan  ivas  guilty  of 

,  lie  belief  PS  it  behored  to  be  on 

littwrbwic^  ^iv«n  to  the  ten«nli 

^  ArdtMd,  auJ  lie  knovrs  oo 

^aiul»  the  eTidetice  you 
I  0f  %k%  estnirt  of  offeuce,  such  as 
L  «iere  taken  hy  tt>c  jintinel  and 
el(  Stewart  against  the  late  Gle- 
in  which  their  resent- 
I  had  been  expressed  and  dis- 
itthe  moplh  of  Aprd  last^ 
Iweot  la  Ediaburgh  to  obtain  a 
■jing  the  reinovings.     And 
ted  to  examine  the  evidence 
!  animoilties  and  tlireaten- 
rlbnl  execiitioD  thereof  by  the 
'  Okoure,  upon  the  rcry  e?€ 
I  or  tb«  15th  of  May,  when  he 
'  1  to  the  remofiog^  of  the 
ef  he  had,  upon  answers 
ibHlofitiRpenption  oOered  by 
>f«ftiae<>ordrsmtgR<'d  ;  whereby 
t  eflbrt^  to  prt* r<iul  those  rcntjor- 
t«  tiis  own  authortfy  or  in- 
» ItMitits  of  Ardshiel,  had  been 

Apiril  last,  by  the  panners  own 

lo  his  own   house  from 

I  l!i€  order  he  hud  obtained  on 

lioo,  th»t  the  isame  should  he 

1st  or  May  of  proceediog^  tQ 

after  which,  lie  caHed  ihe 

i.  ihem  notice  whnt  he  had  l»een 

■d  aeni  them  with  his  notary 

\  lo  (Jtetiure  ;  which  wait  ac- 

I  •!!  the  l(»t  of  Mfiy ,  as  Charles 

hath  dejtofed.  i 

gth  of  May,  Glenure  re- 

i^itomfrom  l5dinbtirjfh,  wbr- 

t^make  an  answer  to  that 

thm  had  been  intimated  to 

at  anawer,  had  g^it  the  same 

Ml. I   *r^v**  out,  in  his 

ing  himsHf 

^lunilaythe 

It  settle  the 

I  estate,  and 
re  the  15th. 

lit  is  proved 

II  S*tew»rt  of 
in  Glennre's 

uniiy,  (K  near  ni*ijfh- 

I  thc99  ai.'eoT«pani<d  hy  €b driest, 

inert  aon-.       *         V'       Brcfk 

to  pri  I  lie  ino- 


» Ilia  Uf)  f\ 


was  come  from 


Bilinbnrgb»  with  a  warrant  to  remove  Iti* 
tenants  ;  to  which  Allan  Breck  said,  That  if 
there  was  a  warrant,  tlier*  wan  no  more  to  fm 
said  ;  but  that  if  he  ii»d  no  warranl^  he  wonM 
not  be  allowed  to  remove  them  :  and  t!ie  wit- 
ness adds,  that  he  heard,  on  8unday  the  lOtti 
of  May,  that  Glenure  was  ^omg  lo  Fort-Wil- 
liam  \ '  and  AlUn  Ilreck  lelt  his  bouse  about 
nine  o'clock  Monday  morning^." 

This  is  conlirmed  hy  Jatnes  IStewart  the 
younger  of  Fasnacloicb,  who  adds,  *'  Thai 
ilreck  was  then  io  his  French  dress,  and  that, 
when  he  went  away  on  Monday  the  llih,  about 
nine  in  the  mornings,  he  told  the  family  that  be 
wifi  ^oiag;  to  leare  the  country  soon,  but  vmM 
see  them  ag^Qin  at  Fasnacloich  before  he  went 
away  :  and  further  says,  that,  on  Sunday  the 
10th,  he  heard,  being  in  compony  with  Allan 
Breck,  that  Glenure  bad  fot  an  order  from 
Kdinbur^h  to  retDore  the  tenants,  and  was  gotie 
to  Fort-William.*' 

From  FBtmaloich,  Allan  Breck  come  directly 
the  same  ihy  to  the  panners  house  at  Atrdiani, 
where,  soon  after,  he  put  off  his  French  clothes, 
and  put  on  the  block  or  dark-cidoureil  short 
coal  heloflg^in^  to  the  panncl,  with  t»ilver  buttons, 
with  a  bonnet  and  Irowser^,  l>eingf,  as  several  of 
the  panners  serrants  haire  de|jo^d,  the  second 
time  Ihey  ever  saw  him  in  that  dress ;  the  only 
former  lime  having  been,  when  Breck  went  in 
these  clothes  for  some  days  to  Rsnnoch  in 
April  preceding,  whilst  the  pannel  was  a  I  Edin- 
bur^i. 

Ao«l  now  the  paonel  himself  hath  declared, 
••  T^ttt  he  Wfi*  infrtrmed  on  Blonday  the  11th 
of  May,  by  his  sou  Charles,  Allan  Breck,  and  , 
Fasnacfofcb's  daughter,  that  they  heard  Gk*- 
ntire  was  to  ^o  to  Locbaber  that  day;  and  that 
one  or  other  of  them  told  him,  that  Gknore 
was  to  refnove  tlie  tenants  of  Ardsbiel.*' 

By  the  communication  of  this  intelligence, 
it  appeared,  that  the  matter  in  dispute  was  com- 
ing^  to  a  crisis  :  the  laborious  efforts  made  by 
the  panoel,  in  going  to  Edinburgh,  of  his  own^ 
aeoordf  to  get  a  stop  put  to  the  removing,  be 
now  saw  were  rendered  inelTectnal,  by  ineamr 
of  Qlen lire's  bavins^  gone  ihithrr  alter  him  : 
and  it  is  p res um edible  from  the  facts  that  pre- 
ceded, andthst  followetl  this  day,  thnt  (his  was 
the  time  when  the  patrnel  antf  Brpck,  at  bis 
own  house,  concerted*  that  Glenure  should  be 
cut  off  by  thp  hands  of  Breck,  upon  his  return 
from  Fort*  WilHam  into  that  country  of  Appio  ; 
and,  as  it  appeitra  from  the  evidence,  that  the 
pannel  at  this  time  was  low  in  caflb,  tite  facta 
tltat  hare  been  pro  red  serve  to  evince,  or  to 
render  ii  further  pi  e^iumeable,  that  at  this  time 
it  was  concerted  betrnjct  the  panoel  and  Breck, 
that  the  latter,  as  soon  as  hi«  work  wss  door, 
should  rt?t!rc  to  the  depart  of  Koalisnacoan,  and 
iher*^  wait,  till  either  the  paonel  setit  him  a 
supply  of  mnncv  ^  '    him  off,  or  catiseil* 

the  money  to  b*  by  his  friend  and 

rorrrspnndent,  VViMiuit.  .i^wart,  merekaol  ill 
Marvl«ur'j;-h. 

It  i&  triK',  that  fur  some  houn  of  this  MoQ* 
dny  the  IHh^  tbt;  [lannel  went  from  bisowa 


191] 


25  GEORGE  IL 


house,  upon  a  menage  from  BIr.  Campbell  of 
Airds  ;  but  he  returoed  home  in  the  eYening ; 
•ad  in  the  dispositioD  that  both  he  and  Brack 
Stewart  had  long  been  in  towards  G tenure, 
which  was  now  more  inflamed  by  this  fresh 
intelligence  tJtey  had  receiTed,  that  Gleoara 
bad.  got  the  better  of  them  at  law,  and  was 
about  to  proceed  in  the  remofings,  a  very  short 
consultation  betwixt  them  might  serve  to  make 
all  this  concert ;  the  evidence  of  which  arises 
from  the  ensuing  facts,  joined  with  those  pre- 
ceding this  11th  of  May. 

For  it  hath  been  proved, that  on  the  morning 
of  Tuesday  the  12th  Allan  Breck  set  out  from 
the  pannel's  house,  dressed  in  his  short  clothes, 
and  went  directly  to  the  house  belonging  to 
Stewart  of  nallachelish,  adjoining^  to  the  ferry 
of  that  name,  upon  the  road  b^  which  Glennre 
was  to  come  from  Fort  Willuim  into  Appin ; 
and  there  Breck  met  his  frienil  Stewart  the 
younger  of  Fasnacloich,  who  hath  deposed, 
•<  lliat  he  took  notice  to  Allan  Breck,  that  he 
had  changed  bis  dress ;  who  answered,  That 
he  did  it  because  the  day  was  warm :"  and 
adds,  *<  That  the  deponent  was  informed  at 
Ballachelish,  in  compiany  with  Allan  Breck, 
that  Glenure  was  gone  to  Fort  William." 

The  same  day  Allan  Breck  went,  accompa- 
nied by  Fasnacloich  the  younger,  to  the  house 
of  Macdonald  of  Glenco,  where  his  mother-in- 
law,  the pannel,  and  Ardshiel's sister,  also  lived; 
and  from  thence,  after  staging  about  an  hour, 
went  a-cross  llie  terry  to  the  house  of  Cameron 
of  Callart,  where  another  sister  of  the  pannel 
and  of  Ardshiel  lives,  and  where  he  lodged  all 
thatni{rht;  and  next  day,  being  Wednesday 
the  13th,  came  back,  after  calling  again  by  the 
way  at  Glenco*s  house  of  Camocli  to  Balla- 
chelish, where  he  remained  the  night  following. 

And  now,  gentlemen,  we  are  come  to  the 
fatal  day,  which  was  Thursday  the  14th  of 
May  last,  of  which,  and  the  days  immediately 
following, the  various  events  and  incidents  that 
have  been  proved  before  you,  merit  your  par- 
ticular attention,  as  I  endeavour  to  put  you  in 
mind  of  them,  as  nearly  as  possible  in  their 
order. 

On  the  morning  of  this  Thursday  the  1-Uh, 
about  7  or  8,  as  John  Beg  Maccoll,  the  pan- 
ner.s  servant,  hath  deposed,  "  The  pannel  sent 
him  off  with  a  letter  to  Charles  Stewart,  notary 
public  at  Maryburgh,  and  told  the  deponent, 
that  the  letler  was  to  make,  or  cause  the  said 
Charles  Stewart  come  to  the  country  of  Appin, 
to  protest  against  Glenure,  in  case  he  had  not 
a  sutficient  warrant  to  remove  the  tenants  of 
Ardshiel ;— and  also  told  the  de|ionent,  he  was 
to  get  some  money  from  William  Stewaft, 
merchant  at  Maryburgh,  to  pay  four  milk  cows 
that  were  bought  for  him  in  the  country  ;  and 
that  if  the  money  was  not  sent,  he  would  not 
get  the  cows ;  and  that  the  pannel  desired  the 
deponent  to  make  all  possible  dispatch  : — that 
accordin)<ly  he  made  all  the  dispatch  he  could  to 
Fort  Willium,  where  he  arrived  about  IS  o'clock, 
and  delivered  the  pannel's  letter  to  William 
Htewart,  merchant ;  who  told  him,  that  Charles 


Trial  of  James  Stewart, 

Stewart,  the  notary,  was  not  at  home ;  bolthat 
there  was  a  notary  along  with  GleDare«  wko 
would  serve  the  pannel  as  well  as  Glennre; 
and  further  toU  the  deponent,  that  he,  the  said 
William,  had  wrote  to  the  pannel  in  the  mon* 
ing ;  that  the  said  William  did  not  gire  hiB 
any  money,  but  said,  he  wonld  send  aorfails 
for  the  cattle." 

The  reason  whv  he  got  no  money  at  thb 
time,  is  exphiined  by  William  Stewart  himwH 
%rlio  deposes,  '*  That  he  gave  no  annrer  ii 
writing,  and  thinks  he  did  not  ffive  any  toW 
answer,  if  it  was  not,  that  he  oid  him  tall  hm 
master,  that  he  was  not  in  cash,  which  (be  nys) 
was  the  case." 

The  letter  itself,  sent  from  the  pannel  Ivy  thii 
witness,  hath  been  prodnced,  and  proved  neAn 
you  ;  and  the  postscript  of  it  is  in  these  wwdi, 
which  I  will  now  repeat,  though  they  are  ■■• 
serted  in  the  libel :  **  As  I  have  no  tiUM  Is 
write  to  William,  let  him  send  down  immediate* 
Iv  8/.  sterling,  to  pay  four  milk  cowa  1  boagkl 
for  his  use  at  Ardttiiel." — ^The  pannd  OMit 
have  had  a  very  pressing  use  for  money,  win 
he  was  thus  urging  the  navment  of  Um  prim 
before  the  buyer  received  the  cattle;  and  let  it 


be  observed,  that  this  fint  expre» 
this  demand  of  money  from  William  SlewM^ 
was  dispatched  by  the  pannel  on  the  minriiB| 
of  the  day  on  which  the  murder  happcMi  ai 
the  evening. 

Again,  you  are  here  to  observe  the  rminiiiw 
betwixt  the  pannel  and  this  William  Stawttf 
Marybui^^h,  who  appears,  by  the  letter  ivyeh 
he  mentioned  to  the  messenger  as  having  ban 
sent  by  him  that  morning  to  the  fmnnd,  Is 
have  entered  with  great  zeal  into  the  nanaah 
scheme  for  opposing  the  removing  ot  the  lit 
nants ;  for  that  letter  also  hath  been  jfnmi 
before  yon,  and  contains  these  words :  <*  I  iai 
Glenure  has  a  mind  to  eject  the  tenants ;  bH 
they  ought  to  be  deaf  to  it,  and,  ataUririBi^ 
keep  possession,  as  they  are  in  good  hndi^ 
and  it  must  end  in  exchequer ;  ao  that  I  kg 
tbey  keep  possession  :  as  there  will  be  ni 
troops,  thev  ought  to  repel  force  by  fbroa^  aad 
take  their  hazard  of  the  consequenoe,  aa  it  SM 
be  no  more  than  violent  profits." 

About  noon  on  this  Thursday  the  14lh»ii 
Ballachelish  elder  hath  deposed,  *'  Hia  gMt 
Allan  Breck  went  out  with  a  fishing-rod  nlai 
hand,  and  was  fishing  in  a  burn  near  the  dqpa« 
neut's  house ;  but  he  did  not  see  him  take  any  i 
that  he  did  not  take  leave  of  the  depoocol,  nd 
did  not  return,  and  he  knows  nothing  of  hni 
since." 

Archibald  Macinnish,  the  ferry-man  at  Balla- 
chelish, deposes, «'  That,  after  mid -day  upSA 
Thursday  the  14th  of  May  hist,  as  the  depe- 
ncut  was  sitting  near  the  said  ferry  with  aati 
ther  man,  Allan  Breck  came  behind  him,  whL 
iHwsted  (oi:  hemmed,)  and,  upon  the  depOMal^ 
looking  about,  desired  him  to  come  to  hia^ 
which  the  de|K>ncnt  did^  and  the  said  Allan  ah 
ijuised  of  him,  if  Glenure  had  croiMd  tha  frv 
from  Lochaber  to  Appin  ?  The  depoaant  I 
him  he  was  sure  he  bad  not:  that  Wfmt,^ 


►t  tway  toward*  tbe  big^h- 
m  dun -coloured  big    coat,   oiid 
rixf,      Antl    further    dcftoseSf 
larr   WB«   e3rp»^cted   hack   upnn    tlip 
y.   Mid    tbe   dejiotient  was  sure  be 
ibe  TUursilay,  as  i I  was  currently 
In  lli«  coiitiiry,   be  was  to   \m\e    a 
f  villi   iciiiie    tfenilemen  at  Kiniullme 
I  »  ursday  nigbt/* 

ISirfy*t)it  ,  upportunity  to  le&rn 

m  llie  G4iutiii'^  ;  aD«l  thai  his  in« 
tlitc  last  article  was  just  con- 
Ibe  mations  of  Gtenure  ;  and  that  tbe 
^U  knowTi^  is  furiber  proved   by 
icbf  clt.n        '    '  u  rat Kintalline, 
"i  I  Tuesday  the 

Hujf,  CU e  to  the  dcpo- 

il  Im  rni*-  Mipany  were  to 

I*  .*  i i"j  then  neict,  and 

hm  miebt  be  prepared  for  enter - 

■^UD:  thai  be  arcr»rili(kjb;!y  made  pro« 

^^Mli  ;  that  be  toll  titafGl^nore  uas 

I^K  kayiiL<  ilmi  nighty   and  that   the 

(i(|liiMflKKul  knew  oCiL'* 

cmdiB^ly  It  bntii  bei?n  proved  by  the 

wrim  «rer«  in  con^p.iny  vrilb  fJlenure, 

CJabidMI,  wbo attinded  bim  n^  a  clerk 

ft  Jmii  Mackenzie  bis  servant,  DonaM 

',  mtn  of  the  nbenff's  officers,  that 

«Bd  they  crossed  tbe  terry  td'  Balla- 

lietwtxt  four  and  tite  in  the  afternoon 

ky  t  ^^U  f^^^'f  crossing  the  f'f  rry,  Bnt- 

I  Mtr    walketl   nlon^    with   Glenure 

dfft  mile,  till  they  canie  to  tbe  skirta  of 

laf  Lrtierttiore,  where  Glenure,  pur- 

m  jyornev  ifiroui^rh   tiie  wcmjiI,  uhich 

Um  M$cr  liill  on  bta  left  hand, 

Etth«H   :        'Ji  the  body  Yvitb  tivo 
iBtred  bf  bind  his  back,  and  came 
jr  ;  of  wbicb  %vounds  be  died  upon 
t  fir  o'cltick  Vbat  same  erenini^. 
jcaaary  for  me  to  repeat  tbe  se- 

riL  *>  related  by  bis  at* 

(»  and  ornd  murder 

K^aqi«ij utea  ny  Allau  Breek  8tewart, 
tmisfttil  bis  wisheM  to  meet  Glenure 
iMOl  p^*oe,  it  rouitt  be  conlesaed  with 
Itlll4i  nmte  met  biio,  or  rather,  iu  a 
M«ranlljr  inaAocr,  lay  in  wait  b>r  bim^ 
m  oo^w^tmni  indeed  for  that  wicked 
Ibf  eaecniliutr  himself  wbikt  be  went 
I,  and  iM  i.iat   from  a  proper 

rvlreat,    r  .  ujuld  be  over,  until 

pul  IU  A  condition  t/»  leave  tbe 
;  lor  wbicb  ti  supply  of  money  was 


«f  Ibe  murder  was  quickly  broui;bt 
of  tli«  panned  by  John  Ma«;- 
i  of  the  deceaseil,  who  went 
'v  -)f  Mr.  Camjihefl  of 

<>'  pontiet  seeing  bim 
.  utter  was  ?  Ami  the 
->  riiailfr  was  killed, 
-<l»i,  expre9«ed  ^reat 
>ncd,  at  what  rmj^ht 
.       '      Uoublf.  riud  prayed 


in  ft* 


tutttnf  I 
I  0t  ««bii 


And  John  Beg-  Maccoll,  tbe  pannert 
▼ant,  wbo  had  been  sent  express  that  morning 
to  Fort' William,  and  who  was  pres^ent  at  this 
circumstance,  relates  it  in  these  words  :  *"  That 
he  was  hardly  an  hour  returned  borne,  when 
Glenure's  servant  came  to  the  door,  catling  for 
the  pannel ;  that  tlie  pannel  went  immediately 
to  the  door,  and  asked  tbe  servant  u  bat  was 
the  matter?  and  what  news  be  had  ?  To  whicli 
the  servant  replieil,  The  worst  1  ever  bad  ;  my 
master  is  murdered  in  the  wood  of  Liettermore : 
upon  which  the  pannel  said^  Lord  bless  me  I 
was  be  shot  ?  To  which  the  servant  answered. 
Thai  be  was  i^hot,  and  said,  tbe  pannel  ought 
to  go  and  take  care  of  bis  corpse:  that  the  aer- 
vant  immediately  went  ofl';  but  neither  the 
pannel,  nor  any  of  hia  family,  went  near  the 
corpse;  and  the  pannel  said,  that  as  be  and 
Gteiinre  were  not  in  good  terms,  nud  some  of 
the  people  that  were  to  meet  Glenure  bad  arras, 
be  did  not  care  to  ^o  near  ibem,  not  knowing 
what  mi^\ii  bajipeo  And  further  said,  that 
this  was  a  dreadful  accident,  and  be  w  as  afraid 
would  bring  trouble  on  tbe  cotmli'y  ;  add  ap« 
pear^l  to  be  "sorry  for  what  bad  happened.** 

Here  it  is  evident,  that  as  soon  as  the  deed 
was  over,  the  pannel's  first  rcilection,  from 
whatever  cause  that  sprung,  was  an  appreheo^ 
hion,  that  it  might  bring  himself  into  trouble  or 
dani^er. 

Tiiat  same  night,  at  tbe  panners  houae« 
orders  were  given  to  the  servants  by  bis  wife, 
to  bide  all  tbe  arms  about  tbe  hoo^e  ;  ami  ac* 
cording  I  y  John  Beg-  IVfaccoll  and  Duyatd  Mac^ 
aoll  hid  a  large  Spanish  gun,  that  used  to  stand 
in  the  brew- house,  and  four  ssvords.  Btil 
here  it  is  remarkable,  that  none  of  tbe  servants 
saw  that  night  the  other  shorter  ^un,  but  of  a 
larger  bore,  asyouhare  seen,  both  having  been 
produced,  and  proied  before  you;  concerning 
which  Duga Id  Maccoll  deposes,  '^  That  Allan 
Stewart,  son  to  tbe  pannel,  told  him  and  hia 
teliow-servaat,  that  he  him<^elf  hud  concealed 
the  lesHser  (or  shorter)  gun,  that  used  to  stand  at 
the  end  of  the  girnel  in  the  barn,  under  tbe  said 
gimel,  where  he  thought  it  would  be  safe/* 

Thiit  same  night,  and  after  tbe  murder  was 
over,  two  witnesses  have  deposed,  that  ibey 
saw  Allan  Br^ ck  Stewart  on  tli«  hill  above  tbe 
bouse  of  Ballachelish,  where  be  had  loflged 
the  night ,  be  I  ore,  aud  not  far  front  the  spot 
where  tbe  murder  happened.  These  were 
Katharine  Mackmnitib,  servant  to  Baltacbeli^b, 
a  wiincsa  called  by  the  punnel,  who  aaya, 
*'  That  in  the  evening  of  the  14th  of  May,  »be 
saw  Allan  Breck  8tewarl  at  la  goal-house  in 
tbe  moor  of  Ballachelisb,  after  Glenure  was 
{filled  ;  and  that  Allan  Breck  then  ask'^d  her, 
wild!  was  tbe  occasion  of  the  stir  in  the  lowii? 
and  that  she  told  hiin,  Glenure  was  murdfred: 
and  further  asked  her,  who  mi^rbi  have  com- 
tnitte<l  the  murder  P  and  ebe  told  him,  slie  did 
not  ku.iw  :  and  farther  saya,  that  abe  told 
iMnald  Stewart,  (who  is  nephew  aod»ou-ju- 
law  to  Ballacbehfih)  where  she  saw  Allan 
Breck  ;  but  that  she  did  not  Icll  bim  to  go  ta 
the  said  Allan,  nor  did  be  d«irc  ber/» 

U 


196] 


25  GEORGE  IL 


Trial  qfJam^  Sietvarit 


[196 


And  lliis  Donald  Stewart  deposes,  «  That 
vpoD  the  ereoiDg  of  Tliuradaj  the  14th  of 
jilay,  about  night-fall,  Katharine  Mackinnish 
called  him  out  uf  Ballacheliab'a  house,  and  in- 
formed him,  that  Allan  Breck  wanteil  him,  and 
that  h^  was  a  little  above  the  house  on  the  brae 
(or  hill):  that  the  deponent  went  up  the  brae, 
and  met  Allan  Breck,  who  was  then  dressed  in 
a  prreat  coat,  and  a  dark  short  coat  under  it, 
with  white  metal  buttons:  the  deponent  told 
biin  uf  the  murder,  and  aaid.  It  could  not  be 
but  that  he,  Allan  Breck,  was  about  it:  to 
irbich  Allan  Breck  answered.  That  he  heard 
of  the  murder,  but  had  no  hand  in  it :  to  which 
the  deponent  replied.  He  did  not  belie?e  him : — 
that  tne  said  Allan  Breck  further  said,  he  be- 
]ie?ed  he  would  be  suspected  of  tlie  murder; 
and  upon  that  account,  and  as  he  waa  a  deserter 
Ibrmerly  from  the  army,  it  was  necessary  for 
Jiim  to  Iea?e  the  kingdom." 

The  events  of  Friday  the  15th  of  May  last, 
immediately  following  the  murder  committed 
00  the  evening  of  Thursday,  do  no  less  merit 
your  attention,  and  these  begin  ?ery  early  on 
that  day  ;  for  John  Maodonald  of  Glenco  de* 
poses,  "  That  on  Friday  the  l.^tli  of  May 
last,  the  said  Allan  Breck  Stewart  came  again 
to  the  deponent's  house  at  Camock,  at  three 
or  four  o'clock  in  tbe  morning,  and  knocked  at 
a  window  when  the  family  were  all  in  bed  ; 
that  tbe  deponent  went  to  the  door  of  bis  house, 
and  there  saw  Allan  Breck,  who  gave  him  the 
first  notice  he  had  of  Glenure's  being  mur- 
dered the  evening  before  in  the  wood  ot^^etter- 
more ;  and  told  him,  that  he  was  to  leave  the 
country,  and  to  go  the  Moor- road  leading  to 
liannoch  ;  and  camo  to  take  leave  ef  the  de- 
ponent and  his  step- mother,  who  is  a  aister 
of  Ardshicl's ;  and  that  the  deponent  did  not 
ask  Allan  Breck  any  questions  about  the  said 
murder." 

And  with  Gtonco  concurs  Isobel  Steirart  his 
step -mother,  who  also  got  up,  and  went  out 
with  her  step-son,  to  receive  Allan  Breck'a 
nocturnal  visit  at  the  door :  and  she  says,  *<  That 
she  asked  him,  what  news  up  the  country  ? 
To  which  he  answered,  a  good  deal  of  news ; 
that  Glenurc  was  killed,  or  shot  the  evening 
before,  in  tlie  wood  of  Lettcrmore :  that  lie  was 
come  to  take  farcwel  of  the  deponent ;  for  he 
was  to  leave  the  country :  and  that  she  asked 
bim  no  more  questions  abunt  the  murder, 
though  she  askeii  hiui  to  come  into  the  house ; 
but  he  answered,  he  would  not  slay.' 

U|M)nthis  incident  it  is  an  obvious  reflection, 
that  neither  the  pannel's  sister,  the  lady  Glenco, 
iior  her  s^ui,  judged  it  necessary  to  ask  any 
question  of  Allan  Breck  al>out  the  murder, 
M'hich  he  now  related  to  them,  as  what  had 
happened  a  tew  hours  before  he  came  thus  uu- 
aeasonably  and  abruptly  to  take  leave :  these 
circumstances  superseded  the  question  as  su- 
|ierfluou8,  who  it  was  that  did  itP 

About  ten  o'clock  in  tbe  forenoon  of  this 
lame  Friday  thr  15tb,  Donald  Stewart,  the  ne- 
phew and  sun-in- taw  of  Ballachelish,  deposes, 
*'  That  be  oict  James  Stewart,  the  pannel,  in 


Duror,  not  far  from  his  own  bouse ;  and  that, 
u(ioo  the  depooent'a  regretting  that  sacb  an 
accident,  as  Glenure's  murder,  should  happen 
in  the  country ;  the  pannel  joined  with  bim  and 
said,  that  he  .was  informed,  that  one  leijeanl 
More,  alias  John  Cameron,  had  been  threaten* 
ing  harm  to  Glenure  in  France ;  but  did  not 
inform  tbe  deponent  who  told  him  so :  and  for> 
tlier  deposes,  that,  to  his  knowledge,  serjeant 
More  has  not  been  in  Appin  these  ten  yean 
past." 

Now  this  very  Donald  Stewart,  who  ii  a 
friend  and  neighbour  of  the  pannd's,  had,  as 
you  have  heard,  the  night  berore  said  to  Allan 
Breck  hiouelf,  that  he  was  surely  the  murderer, 
which  was  the  sense  and  opinion  of  the  whole 
country ;  and  yet  here  it  is  very  remarkable, 
that,  when  the  thing  was  recent,  and  as  some- 
bmly  must  have  doue  it  who  was  likely  to  be 
capable  of  such  an  enormicv,  this  pannel,  for 
want  of  a  belter  shift,  is  endeavouring  to  start 
a  very  improbable  hypothesis,  and  to  threw 
the  suspicion  on  this  serjeant  More  Cameroni 
which,  as  it  was  destitute  of  any  foundatioB  in 
truth,  gained  no  sort  of  credit  or  belief;  and 
YOU  are  to  consider,  gentlomeo,  if  it  could 
be  started  by  the  pannel,  at  this  time,  for  any 
other  purpose  than  to  divert  the  attention  and 
the  suspicions  of  mankind  from  his  friend 
Allan  Breck. 

The  same  day  about  twelve  o'clock,  Alex- 
ander Stewart,  travelling  packman  in  Appin, 
and  first  cousin  to  Allan  Breck,  deposes,  *'  That 
the  pannel  desired  him  to  go  to  Fort  William  to 
William  Stewart,  merchant  there,  and  get  fron 
him  five  pounds,  or  five  guineas ;  and  tolil  the 
depouent,  that  his  friend  Allan  Breck  was 
about  to  leave  the  countrr,  as  there  were  troopa 
coming  into  it,  and  that  he  might  be  suspected 
of  Glenure's  murder ;  and  that  it  was  ineum* 
bent  upon  him,  the  pannel,  to  supply  the  said 
Allan  Breck  with  money ;  and  the  pannel  de- 
sired the  deponent  to  tell  the  said  William' 
Stewart,  that  he  must  find  him  money,  tliongli 
he  should  borrow  it  from  twenty  purses ;  and 
aUo  to  tell  him  to  give  credit  in  live  pounds 
sterling  to  John  Breck  MaccoU,  bouman  to 
Appin  at  Koalisnacoau,  in  case  he  came  to  de- 
mand such  a  sum  :  that  in  consequence  of  ibie 
mpssage,  he  went  to  Fort-William,  where  he 
arrived  early  in  the  evening,  met  William  Stew- 
art, dclivci-ed  his  message ;  that  William 
Stewart  told  iiim,  he  had  not  money,  but  that 
next  morning  he  would  give  him  his  errand." 

William  Stc»  art  himself,  who  received  this 
message,  deposfs,  **  That  it  was  about  ten 
o'clock  forenoon,  or  betwixt  ten  and  twelve, 
that  be  saw  the  packman  at  Fort-William ; 
and  his  wile  swears  it  was  about  mid-day  ;" 
and  if  they  are  both  in  the  right,  the  packman 
himself  must  have  been  mistaken,  when  he  says, 
thst  he  was  dispatched  by  the  pannel  from  An- 
charn,  so  late  as  about  noon  tliat  day  ;  of  which 
circumstance  1  shall  hereafter  have  occasion  to 
take  some  notice. 

William  Stewart  further  deposee,  «•  That,  tt 
tbui  time,  he  asked  the  packmtni  if  he  hid 


for  Murder. 

eome  by  the  road  where  that  unlucky  murder 

jftfCreoure  had  happened?    and  the  packman 

I  loJil  him  he  did  ;    but  the  deponent  did   not 

*  iilc  hrm  who  wts  suspected  tor  tt,  nor  had  any 

IfUbircmirerutioD  on  thai  subject^  there  bein'if 

|Bmst  inmny  people  pre^nt  in  the  shop  at  the 

^^^tf*     But  tnis  apology  nottf  itU«tandin£|^,  (for 

^^Bbe  pimple  in  the  shop  at  Mar^burgU  wouM 

^Itftheeo  ready  to  liatcn  to  news  about  audi 

imoQ  etent)  this   William   Stewart, 

flti  well  acquainted  with  the  cause  ot 

bett%f%i    the  pannel   and   Glenure, 

tittle  ioquisitive  on  this  ocduioti  of  rt> 

message  from  the  puniiel  thedny  after 

niarder  happened,  seems  to  he  uo  otherwise 

iMOOoCabte,  than  by  the  supposition  that  he 

Imw  so  wdl  %iho  were  GleuufL'^a  enemies  ai 

tbttttime,  that  it  was  improper  or  unueces-wiry 

lor  him  to  be  inquisitive  about  ihe  authors  of 

hii  murder. 

Dufnld  Maccoll^  the  panntl'si  servnnt,  de- 
|0M5,  *»  That  about  four  o'clock  in  the  iifter- 
MQHof  thi«  Friday  the  15th  of  May  tutt,  thw 

Cael  desireil  the  ilepunent  to  carry  flie  iirm« 
n  tlt«  Irouflea  (at  Aucliaru)|  and  hide  thc-m 
in  the  moor;  that  accordingly  the  depoiieni, 
ti»4  John  Bei;  i^laccidl,  took  the  tiiresaid  lar^e 
|fa&  from  the  hack  of  tlie  sliei^p-hou^e  under 
lk  thatehf  and  the  said  four  twuids  from  under 
lh«  thatch  of  the  barn,  and  fiiund  the  gun  that 
uffd  to  stand  in  the  barn  under  the  prne!, 
ibre  the  said  AiUn  Stewart*  the  fiannerii  son, 
ntd  he  hid  it,  and  carried  iheui  to  i\i^  iiuior, 
Ibd  bid  them  iu  the  hole  of  a  rock  aljove  the 
fttlitiMMS:  that  the  large  or  Spatii&h  g[uii,  that 
iM  to  the  brew- house,  was  charged  with 
fowtler  and  stnall  drops  ;  and  that  there  w^» 
nribot  ja  the  amall  or  lesser  gun  that  usefl  to 
ttaoit  at  the  end  of  the  g^irnel  in  the  barn  ; 
tiilt  they  overtook  Katharine  Maccoll,  lervant 
to  tliep«nnel,  in  the  brae  above  the  bouse  of 
iacham,  with  a  pock  or  sack»  anrt  suiTietliinf^ 
in  it|  under  her  arm.  The  deponent  atikiHl  her 
wbitihehad  got  in  the  sack  ?  to  which  she 
*Mwere<|,  that  it  was  Allan  Breck's  clothes, 
tod  that  she  was  goin^  to  hide  them  ;  and  the 
dtpQoeot,  and  the  said  John  Beg  Maecoll, 
•w  ber  hide  the  sack  in  which  the  said  clothes 

This  is  confirmed  by  the  oath  of  John  Befif 
Hiccofl,  the  other  serraut,  who  says,  "  They 
iire  desired  by  the  pannel's  wife  to  hide  the 
»!•  belter"  (i.  e.  thsti  they  had  done  the 
MfiN  before) ;  and  by  the  oath  of  Katharine 
MtQOollt  who  says,  "  That,  upon  the  evening 
tftfui  Friday,  her  mistress,  the  pannePs  wife^ 
fi  op  a  bUie  coat  and  red  waiskM>at,  with 
ling'  else  into  a  sack,  and  delivered  them 
tdepooeoti  desiring  her  to  hide  them  some 
ftritbout:  that  her  mistress  did  not  tell  the 
)t  to  whom  the  clothes  belmnred,  hut 
Ibe  deponent  thought  the  said  coat  and 
were  Allan  Breck's  :  and  she  adds, 
time  in  summer  last^  atter  the  above 
1 1  8uloiuou  Bane  MaccotI,  servant  to  the 
&I,  told  the  depone ntf  thai  the  said  Mrs. 
tf  spouse  to  the  panoeJi  desired  her  to 


A*  D.  175«- 


[196 


conceal  what  she  knew  about  the  above  clothet, 
in  case  she  should  be  asked  or  examined  about 
them.^» 

On  Satarday  the  16th  of  May.  as  William 
Ste^vart's  wife  hath  deposed,  **  »hc  being"  soh- 
citoits  to  have  the  cows»  bousfht  for  her  bus- 
baud's  use  hy  the  pannelf  towards  stocking  a 
farm  they  bad  taken,  g^ave  the  jiackujan,  hit 
messenger,  three  i^uineas  out  of  ber  purses 
and  the  packman  defioses,  that  he  got  the 
money  from  Mrs.  Stewart,  after  he  had  seen 
William  Slewan  himself,  on  this  Saturday  the 
16th »  who  told  htm  lie  would  let  him  go  imme- 
diately ;  and  that,  havtnjf  cr*'t  the  three 
guineas,  he  forth"  illi  returned  to  Aucharu,  and 
arrived  iliere  in  the  evening,  near  to  which 
place  he  found  the  panne  I  a  prisoner ;  but  the 
panncl's  wife,  and  the  deponent,  having  had 
access  to  converse  with  the  panuel  apart,  ihc 
flannel  ajiked  the  deponent,  what  ntoney  he  had 
brought  from  Fort- William  ?  and,  upon  the 
ileponent's  telling  him  that  he  had  brought 
three  guineas,  the  pannel  pulleil  a  greeu  purse 
out  of  his  pocket,  out  of  which  he  look  two 
guineas,  and  gave  them  to  his  wife,  who  deli- 
vered them  iuimediulely  to  the  deponent  ;  and 
the  pannel  desired  that  the  five  guineas  tthould 
he  sent  to  that  unhnppy  man,  ittesauing  Altaa 
Breck,  to  see  if  he  cuuld  make  liis  escape ; 
and  pitehetl  upon  the  deponent,  as  a  person 
that  should  go  with  the  mtmey, — That  soon 
after  the  psnnel  was  carried  oil  by  a  parly  to 
Fort-WiTliam;  and  Mrs.  Stewart  told  the  de- 
poTjent,  that  he  would  Hud  Alluii  Breck  in 
Koalisnacoan  ;  and,  sometime  after  u^ht-fall, 
the  deponent  got  his  supiier  at  Aucharu,  and 
then  the  panuel's  wife  carried  the  deponent  to 
Ihe  back  of  the  brew-house,  where  there  lay  a 
sarkj  out  of  which  the  s^id  Mrs.  Slewurt  took 
a  blue  coat,  red  waistcoat,  black  breeches,  a 
hat  at^l  some  shirts,  all  which  she  delivered  to 
the  deponent,  ordering  him  to  go  with  the 
clothes  and  money  to  Koalisnaeoan  imine- 
difltely,  and  deliver  them  to  John  Breck  Mac- 
coll,  bouman  to  Appin,  if  he  did  not  meet  Allan 
Breck  himself;  but  directed  the  deponent  not 
10  carry  the  clothes  to  the  baumau's  house,  lest 
any  body  should  see  them  ;  that  the  depoueni 
accordingly  set  out,  that  same  night,  foi-  Koa- 
litnacoan.^^ 

In  the  mean  while,  as  John  Breck  MaccolT^ 
boumati  to  Appin,  halh  deposed*  *•  Upon  the 
afternoon  ^K  this  Saturday  the  16th  of  May,  as 
the  deponent  was  in  a  Isr-hush  (or  thicket)  near 
Aldavoim,  at  the  foot  of  the  heugh  (or  deep 
holloiv  place)  of  Corrynakeigh  in  K«mhsna» 
coao,  he  heard  a  whistle,  and,  upon  Wkingupi 
saw  Allan  Breck  at  a  little  di^itauce,  beckoning 
to  the  deponent  to  come  towards  him  ;  which 
he  did:  that,  after  salutations,  the  deponent 
lotd  him,  he  was  afraid  it  was  no  good  action 
that  occasioned  his  being  in  such  a  remote 
place,  and  at  such  a  distance  from  any  com* 
mon  road  ;  that  Allan  Breck  answered,  The 
place  was  not  very  far  from  a  road :  that  the 
deponent,  having  heard  the  day  before  of  Gle- 
Dure'd  murder^    charged  Allan    Breck   with 


199]  25  GEORGE  II. 

being  goilty  of  it:  that  Allan  Breck  asked  tbe 
deponent,  what  he  had  heard  about  the  mur- 
der? That  the  deponent  answered,  That  he 
had  seen  no  person  from  the  strath  (or  Tale)  of 
Appin ;  but  that  two  poor  women,  that  had 
come  up  Glenco,  were  telling  that  Glennre  was 
murdered  Thursday  evening  in  the  wood  of 
Lettermore;  and  that  two  people  were  seen 
going  from  the  place  where  he  was  murdered  ; 
and  that  he,  Allan  Breck,  was  said  to  be  one 
of  them. 

**  That  Allan  Breck  answered,  he  had  no 
concern  in  it ;  and  that,  if  his  information  was 
right,  there  was  but  one  person  about  the  mur- 
der ;  and  that,  as  he  was  idle  in  tbe  country, 
he  was  sure  he  would  be  suspected  of  it ;  but 
that  would  give  him  little  concern,  if  he  had 
not  been  a  deserter,  which  would  l»ear  harder 
upon  him,  in  case  he  was  apprehended,  than 
any  thing  that  could  be  proved  against  him 
about  the  murder. 

"  That  the  deponent  did  not  believe  him, 
when  hu  said  he  had  no  hand  in  the  murder  of 
Gleiiure ;  and,  not  caring  to  press  it  much 
upon  him,  told  him,  that,  as  ne  was  already 
8uspe<*teti.  it  was  dan^rous  to  ha?e  any  inter- 
courtie  with  him  ;  and  pressed  him  to  leave  the 

J»lace,  lest  he  should  bring  the  deponent  and  his 
amily  to  trouble. 

'*  That  Allan  Breck  said,  he  did  not  doubt 
but  that  the  family  of  Ardshiel  would  be  sus- 
pected of  the  murder,  and  it  was  probable  the 
pannel,  and  Allan  Stewart  his  son,  might  be 
taken  into  custody  about  it;  and  that  he, 
Allan  Breck,  was  afraid  Allan  Stewart  the  pan- 
nel's  son's  toujy^ue  was  not  so  good  as  hit 
father's ;  by  which  words  the  deponent  under- 
stood, that  Allan  was  easier  intrapped  than  tbe 
pannel. 

<*  And,  the  deponbnt  still  insisting  upon 
Allan  Brock's  leavmg  that  ncighbourhM>d,  the 
said  Allan  Breck  told  him,  he  would  not  leave 
the  town  (as  the  witness  expresses  it,  or  the 

{dace)  for  right  days,  imless  some  necessaries 
le  expected  came  to  him ;  and  told  the  depo- 
nent, unless  some  money  came  for  him  berore 
next  morning,  be,  the  deponent,  must  go  to 
Fort- William  with  a  letter;  that,  though  the 
deponent  refused  to  go,  Allan  Breck  looked 
about  among  the  trees,  and  finding  a  wood- 
pigeon's  quill,  made  a  pen  of  it,  and  having 
made  ink  of  Kome  povider  he  took  out  of  a 
po\«(ler-horn  that  was  in  his  pocket,  he  wrote  a 
fetter,  whirh  he  told  the  deponent  he  must  de- 
liver to  William  Stewart,  merchant  at  Mary- 
burgh. 

<*  And,  noon  the  deponent's  telling  him, 
that  he  would  by  no  means  undertake  that,  as 
he  was  informed  that  every  body  that  went  to 
Fort- William  %vas  searched,  Allan  Breck  said, 
it  was  an  easy  matter  to  hide  a  letter ;  the  de- 
ponent answered.  If  he  was  catched  upon  tbe 
streets  what  would  he  do  with  it?  Allan  Breck 
told  him,  that  the  letter  must  not  be  found 
upon  him  by  any  means,  and,  if  he  was  catched 
with  the  letter,  be  must  eat  it  before  it  was 
found;  that  the  deponcot  then  told  the  said 


Trial  of  James  Stea>arif 


[800 


ne  mei  Aiian  jarecK  ai  luis  ume,  veiny 
'k  short  coat  and  trowsers  lying  apoa 
e,  and  produced  to  him,  and  provea  !» 
en  the  property  of  the  pannel. 


Allan  Breck,  that  he  did  not  know  bathe  woakl 
be  obliged  to  go  for  some  beer  next  dajr  to 
Fort-William,  m  which  case  he  might  poiaibly 
carry  the  letter  ;  but  at  the  same  time  told  the 
said  Allan  Breck,  that,  if  he  shoukl  be  taken 
up,  he  would  tell  all  he  knew  about  him. 

««  That  the  said  Allan  Breck  desired  tbe  de* 
ponent  to  go  to  Callart,  or  Glenco's  house,  ftr 
a  peck  of  meal  to  him ;  which  the  depoiieek 
refused,  and  at  parting,  the  said  Allan  Breck 
told  the  deponent,  he  would  see  him  next  day.** 

The  bouman  further  deposes  to  the  dress  a 
which  he  met  Allan  Breck  at  this  time,  being 
the  black 
tbe  table, 
have  been  the  property  ot  the  pannel 

Early  upon  Sunday  morning,  the  17tb  of 
May  last,  as  both  the  packman  and  the  boB- 
man  have  deposed,  they  met  near  to  tbe  boa- 
man's  house,  whereof  the  latter  at  first  denied 
to  the  packman,  that  he  had  seen  Allan  Biecki 
and  u|>on  the  other's  being  surprized  at  thiii 
and  saying,  he  was  informed  he  wonld  meet 
Allan  Breck  there,  and  had  brought  some  ne- 
cessaries for  him ;  and  the  bouman  enquiring 
what  he  had  brought?  tbe  packman  answeraC 
dwe  guineas  and  some  clothes;  and  told,  that 
he  had  a  great  deal  of  trouble  in  getting  the 
money  ;  that  he  had  been  sent  by  the  paniMl 
to  William  Stewart  at  Fort  Wdliam,  froai 
whose  wife  he  got  three  guineas,  and  that  Ibi 
pannel  or  his  w  ife  gave  him  the  other  two  goh 
neas ;  and  that  the  panncrs  wife  gave  hisB  the 
clothes,  and  informed  him  that  Allan  Brack 
was  to  meet  him  at  that  place ;  wberettpea 
the  bouman  owned  to  the  packman,  that  he 
bad  seen  Breck  the  day  before,  and  that  he 
expected  these  things,  and  directed  tbe  pack- 
man how  he  might  find  Breck,  if  he  would 
go  to  a  hill  he  pointed  out  to  him,  near  to  the 
eugh  of  Gorrynakeigh,  and  whistle  once  er 
twice,  be  believed  Breck  wonld  come  to  kia: 
but  this  the  packman  declined,  telling,  that  ha 
had  slept  none  "  *  ''       ^  " 

moch  fatigued 
bouman  the  five  gumeas, 
the  clothes  at  some  distance,  and  would 
them  to  the  bouman  when  he  was  going  away  ; 
and  then  went  to  sleep  in  the  bouman's  boaaet  , 
After  the  packman  bad  slept  some  hours  hera» 
he  dined  with  the  bouman  his  landlord,  and 
tlod  him,  **  That  the  pannel,  and  Allan  his 
son,  were  made  prisoners  the  evening  beliira^ 
and  sent  to  Fort  William ;  and,  upcm  tbe  bon- 
man's  enquiring  who  was  suspected  of  Glenure^ 
munler  ?  the  packman  answereil,  that  it  was 
Allan  Breck ;  and  that  it  was  likel  v  the  pan- 
nel, and  Allan  his  son,  would  stand  the  firrt 
trial  for  it."  And  aliout  noon  this  Sunday  the 
packman  went  away,  without  seeing  his  con- 
sin  Breck,  aller  havmg  pointed  out  to  the  bon< 
man  a  fir-tree,  at  the  root  of  which  he  had  bid 
Allan  Block's  clothes. 

The  bouman  further  deposes,  (and  indeed 
every  word  of  his  testimony  meriu  yonr  afr* 
tention,  and  was  given  in  a  most  lively,  natnnl, 
and  ccedibie  manner)   <*That,  after  be'kii 


ine  pacaman  ueciioeu,  wiiing,  vumt  am 
I  none  for  two  nights,  and  was  wmj 
tigned  ;  and  upon  this  delivered  to  tbe 
the  five  guineas,  and  told,  he  had  left 
bea  at  some  distance,  and  would  aheiv 


fir  Mtitdtr* 

tell  it|ioo  ihm  mme  SnmUy  «veiiifi^, 

^'■^"rking  «l  ihe  M^ortow,  and 

t>«  A  Han  Brcckf  he  got  ti\K 

I  iiK    i^liiit,  and  stivv    Alkn 

ml  i:e  (torn    tlie   house; 

^  1  comiag  up  to  bim, 

him,  if  any  message  had  cnme 

Tfcir  depoopnt  tuld  bim,   ihut  his 

MQ    bad  i!Oiue  «^iUi  <i(e  guineas  and 

cMkea:    Ibat  Athui   Breck  coiiiplaiittid 

ir»«  bill  UlUe  mooey,  biH  hoped  ii  would 

tbnt  ihe  de|K)i»eiit  told  the 

I    wft'jai'rttivl  be  would  stJirve 

4|if  and  that  he  ^^as  nut  able 

bim  :    4iiut  AlUn  Breck  ans^eri^d,  lie 

oeouMio   for  victuals,  bui   vvanted  a 

TCTf  tmieli ;    upon  nhicb  the  depooent 

in  bis  hotise,  Aud  carried  out  Home 

ftociie  milk   and   water  in  a  no^cin, 

fve  guioeaa,  and  i^ve  boih  to  Allan  ^ 

lb«t  Ihe  deponent  then  went  tor  ihe 

«kkli   he  alco  gave  the  said   Allan 

oonsi&ted  of  a  blue  long  coat, 

black   breecbefl,  a  bat,  lome 

m4  iihtrt9« 

ibe  deponeiit  told  Ihe  said  Allan 

llMlihe  paiinclaad  ht«  son  Allan  were 

i  Bcoiiunt  o»  Glenure's  murder  ; 

Breck  answered,  That  that  was 

lie  eipecied  \    bm  it  would  not 

i» tti  there  could  be  no  proof  against 

lot  cvfrtaaed  aotne  appreuension*  Icsl 

ISie«v«n,  ton  to  the  panoel,  might  be  be- 

~  by  liaa  nwd  ioogue. 

^*  Tb*t  tbe  dcpotieut  desired  the  taid   Allan, 

mm  ibM  be  bad  gnt  all  the  ncr^iti^aries  he  ex- 

fisltd,  li>  CO    about  hilt  business;    and  the 

mi  Atks  Bmk  promised  to  ilo  so,  bui  told 

Ik  difJMitaL,   that  be  must   meet   hitu,  the 

■il  AAm    Breck,  uexl  morning;    that  he 

mA  idivi^r  ibe    deponent    Ihe    clothes   he 

Iha  md  Mian  Breck  had  then  on,  to  wit,  the 

Ibsk  dkn  e<»l  and  trun  '     mi  lo  tbe  dc- 

MfMis  tbe  clerk '»  ba<  r  lo  be  kept 

tf  Ifcf  4tpmi<til,  till  he  titintritM  thetii  to  the 

fmmi\  miU  t    thai  tbe  depoaent  promiseil  to 

■fUdie  nM  Allan  Breck  next  morning,  but 

i4  ist  Kc  biirt ;    and  when  the  dtiponeitt  went 

19  Mit  moming,   he   found  the*  said    short 

UldlCMt,lrowmrr>«,  and  the  noggin  in  which  he 

^■i  cmnmk  tbe  drink  lo  Allan   Breck,  lying 

^^Klte   IB    tbe    pbice   where    the   deponent 

H^Pl^  «ilU    AlUii    Breck  Itie  night   before; 

tillbM  br  b»lh  aol  ieeu  Ihe  said  Allan  Breck 

On  Sliialay  the  18ib  of  May,  Allan  Breck 
mirbiiiw,  as' he  bad  praf>oKed«  by  a  very  un- 
N^aiBitJ  ff'^'''.  I       i'  I   moor<^,  and  orer 

lk»  tnwiitatn-  .    and  came  thut 

iMtilftyiot!  i    tii^n  Dig  Carneroa 

11  ilimnrti^  I  vub  whom  be  retnain- 

I4AII  Wwdm^MUy uuig.     The  uncle  hath 

mid,  **  Hm  |ir««ied  him  earnestly  to  make  a 
cbao  IffCBSlf  Mid  Irll  btin  ill  Uf  Utiew  of 
Cfbftisri!*!  itiiirdm'.    Tu  lowered 

•nil  i«  o«tb|  Tbat  hi  bift  ui«>Dure, 

I  tht  oQolf  hovrcrer  frcf|uenl1y 


A,  D.  1752- 


[208 


repeat^  bis  tnstanceit,  till  Breck  became  ftngry^ 
and  ihp  iioele  deaisitNl  further  eoqiiiry/' 

Four  days  after  Breck  left  bis  iiocle**  bonse. 
that  is,  on  the  2iMi  o\  May,  **  Ihe  uncle  haf«* 
iDg  ocesiioti  to  bF  ourteeo  miles  from  his  own 
House,  (further  down  the  country)  and  passing 
k»V  Ihe  Kide  of  a  wood,  he  heard  a  whistle  from 
tbe  wiHid,  and,  l»okincr  ah«>nt,  saw  Allan  Breck, 
who  then  told  His  uncle,  iliat  bis  only  fear  was 
l<«  be  appreht'udaK  by  the  nalitary/as  he  bad 
beea  a  des^-rter  The  uncle  answered,  Ue 
was  very  sore  tbe  friends  of  Ihe  deceased 
would  procure  bim  bis  discharge,  if  be  could 
discover  the  murderer.  And  Breck  replied. 
That  ihey  were  at  this  lime  in  such  fury  and 
rage,  tbiit  be  was  very  sure,  were  he  appre* 
bended,  he  would  be  hanged." 

It  is  unnecessary  that  I  should  resume  mi- 
nutely what  tbe  other  witnesses  said,  who 
saw  Breck  Stewart  in  Rannoch  or  Athole, 
when  he  passed  tbroitgb  that  country  at  this 
time ;  bis  appearances  bespoke  the  situation 
be  was  truly  in,  that  of  a  malefactor  study  tog 
10 conceal  htniself,  and  making  bis  escape*, 

1 1  is  however  material,  that  you  should  fur- 
ther obberve,  that  after  BrtfckStew^jrt  bad  thua 
disappeared  from  the  country  of  Appin,  where 
this  murdrr  was  committed,  every  body  in  thai 
country,  and  in  thai  of  Hannocb^  through  which 
be  retired ,  and  in  boib  which  he  was  well 
known,  and  had  relations,  imputed  lo  him  tbn 
actual  murder,  and  ti>  no  other  person.  You 
have  already  beard,  that  Donald  8(ewarl»  the 
nephew  of  Balbcbelisb,  charged  him  with  it 
t'j  his  face  on  ibe  night  of  Thursday  the  14lh, 
when  the  blood  *»f  the  deceased  was'hardly  yet 
cold,  as  Ibe  bouiuan  did  on  Ihe  Saturday  lollow- 
ing;  and,  un  the  Monday  fiillowiug,  Cameron 
bis  uncle  disr<.?ereil  the  same  belief.  And  1  have 
now  lo  adil  upon  this  bead  of  tbe  voice  f>f  tbe 
coimtry,  or  ihe  Jama  viantr,  thai  Bjiliachelish 
elder,  who  had  been  his  landlord  the  night  Iwj. 
Ibri*  the  murder,  says,  **  That,  Ihe  morning 
after  Ihe  murder  was  commititd,  the  deponent 
really  thoughi,  that  Allan  Breck  Klewart  might 
be  the  actor  in  this  murder,  because  he  did  not 
return  to  tbe  deponeut  again/'  And  Maciu- 
nes,  the  ferry -man  at  BaUaciiel3sh,savs,  **Tha| 
he  beard  no  liody  suii|)ccicit  Jor  the  murder  of 
fflenure,  but  the  said  ADsn  Breck.**  And 
Jnmes  Mann,  change-keeper  in  Rannoch,  says, 
*'  That,  before  Allan  Breck  came  lo  bis  house 
in  Msy  I  ist,  it  was  reported  in  that  country, 
that  he  was  concerned  la  Glenure^s  murder ; 
and  that  be  himself  suspected  him  at  tbe  lime, 
as  be  came  unseasonably,  aod  was  wanting 
provisions/* 

There  are  yet  other  eircumatances  subse4|a«i)| 
to  the  murder,  and  to  the  pannePs  cnnimitmani 
al  Fort  William,  that  deserve  your  considera- 
tion with  the  rest  of  the  evidence  ;  one  of  these 
is  deposed  by  Hugh  Maclean,  barber  in  Mary- 
burgh,  who  says,  **•  That  one  day  being  called 
by  the  pannel  to  shave  him,  be  thinks  upon  a 
l^lurday,  the  pannel  asked  bint,  what  news  he 
beard  in  the  town  ?  The  deponent  answered, 
That  be^  the  panpel,  was  to  be  CArried  to  Edin- 


803J 


25  GEORGE  II. 


Trial  afJamu  Slexart, 


\m 


bur^h  on  the  Monday  following ;  whereupon 
the  pannel  said,  that  was  a  matter  that  gave 
him  DO  concern,  and  wished  it  had  hapyiened 
sooner ;  and  was  afraid  of  nc  Ihing  but  that  his 
servants  mi^t  be  inticed  to  take  money,  and 
turn  ap;ainst  him ;  and  desired  the  deponent,  as 
from  him,  to  tell  his  serrants  to  say  nothing* 
but  truth,  to  keep  their  minds  to  themselves, 
and  he  wouM  take  care  of  them,*  and  accord- 
ingly the  deponent  delivered  the  pannel's  mes- 
sage, in  his  own  words,  to  two  ot  his  servants, 
who  were  then  in  separate  custody  in  the  same 

Krisoii ;  and  that  they  were  both  of  the  name  of 
laccoll." 

Again,  gentlemen,  you  have  heard  read,  and, 
I  dare  say,  with  much  regret,  the  examination 
of  the  pannel's  wife  and  daughter,  taken  before 
the  sheriff  upon  oath,  wherein  they  say,  **Tbat 
Allau  Breck  Stewart  came  to  the  pannel's 
bouse  no  Monday  the  11th,  in  bis  Frtnch  dress 
(that  has  been  often  described),  and  that  he 
went  away  next  morning,  after  taking  leave  of 
them,  dressed  in  the  same  habit;"  and  yoa 
have  heard  by  what  a  cloud  of  witnesses  it  was 
proved,  that,  from  the  evening  of  Monday  the 
11th,  till  the  morning  of  Monday  the  18th, 
Allan  Breck  was  seen  in  no  other  dress,  than 
the  short  coat  and  trowssrs  belonging  to  the  pan- 
nel, now  lying  in  coart ;  and,  bv  the  pannel's 
own  servants  and  the  packman,  it  has  been  prov- 
ed, that  Breck's  French  clothes  were,  bv  Mrs. 
Stewart's  order,  put  into  a  sack,  and  hid  in  the 
moor  near  the  pannel's  house,  from  thence 
brought  back  by  the  same  servant  maid,  by  order 
of  Mrs.  Stewart,  and  by  her  delivered  to  the 
packman,  by  him  to  be  carried  to  Breck  at  Koa- 
lisnacoan ;  and  that  the  maid -servant,  who  was 
employed  bv  her  mistress  to  hide  these  French 
clothes,  and  to  fetch  them  back  again,  was,  by 
a  message  from  her,  desired  to  conceal  what  she 
knew  alMot  the  clothes,  in  case  she  should  be 
asked  or  examined  aboot  them. 

These,  I  think,  gentlemen,  are  the  most 
material  facts  and  circumstances  that  have  been 
proved  before  you,  which  I  have  resumed  iu 
the  order  of  time  as  they  banpened,  with  intent 
to  give  you  a  just  view  of  the  case  of  the  pan- 
nel, whom  you  are  now  trying;  and  I  am  per- 
suadtd,  that  the  reflections  which  naturally 
arise  fn^m  these  facts,  in  respect  of  the  ques- 
tion before  you,  must  have  occurred  to  your- 
selves, when  you  heard  the  evidence  given,  and 
when  I  have  again  resumed  it ;  and  therefore 
roy  observations  to  you  upon  the  whole  shall  be 
as  few  and  as  short  as  possible. 

1  have  admitted,  that  it  is  incumbent  upon 
roe  in  this  trial,  as  against  James  Stewart,  the 
pannel,  to  make  out,  that  Allan  Breck  Stewart 
was  guilty  of  the  actual  murder  in  question ; 
and  1  apprehend,  that  is  done  to  full  conviction, 
upon  these  considerations. 

And,  first  of  all,  gentlemen,  here  has  lieen  a 
very  extraordinary  and  shocking  murder,  com- 
mitted within  the  county  or  district  of  Appin, 
in  the  most  nortbem  part  of  this  county,  of  a 

f  See  p.  148. 


gentleman  who  had  an  estate  and  relations  in 
that  neighbourbood ;  a  man  of  a  fair  cbaractor, 
who  was  going  about  the  duty  of  his  office,  ui 
the  king's  and  the  public  service,  inteoding  no 
injustice  to  others,  and  apprehending  no  ham 
to  himself;  for  he  and  all  his  atteaunts  were 
unarmed ;  and  yet  he  is  bereaved  of  bis  life,  not 
by  an  open  enemy,  upon  a  declared  or  a  snddcs 
quarrel,  but  basely  assassinated  and  shot  be- 
hind his  back,  by  a  person  lying  io  wait  aai 
lurking  among  trees  for  that  purpose. 

This,  gentlemen,  is  a  very  strange  and  slMNSk* 
ing  event ;  and,  as  for  every  event  there  nnst 
be  a  cause,  somebody  most  have  done  it,  and 
upon  some  reason  or  temptation,  such  as  it  w»: 
and  this  is  not  like  a  murder  committed  ou  tbo 
streets,  or  on  the  highways  leading  to  a  popn- 
lous  city,  but  in  the  comer  of  a  county,  wbsrS 
the  deceased  was  himself  a  gentleman  of  note, 
and  where  every  body  of  any  note  is  known  to 
every  iMdy:  the  deceased,  therefore,  mml 
have  had  one  or  more  enemies  fit  or  capable^  sr 
likely  to  have  devised  or  perpetrated  aoch  aft 
action ;  and  who  these  are,  you  have  beett  noir 
for  many  hours  enquiring. 

And,  upon  the  result  of  that  inquiry,  what 
doubt  can  there  be  in  the  first  place,  that  Breck 
Stewart  was  the  actor  ?  His  character,  and  bis 
situatioo  as  a  deserter  from  the  king's  service^ 
and  now  actually  listed  in  the  French  aervioe^ 
and  in  this  country  only  as  a  sojourner,  for  a 
viAt  to  his  friends,  rendered  him  the  most  Ukely 
person  then  resident  in  that  country,  for  being 
guilty  of  such  a  thing;  nay,  so  much  the  only 
person  likely  that  the  pannel  himself,  wlwn  lie 
cast  about  for  some  other  man  on  whom  tbo 
suspicion  of  thisjgruilt  might  be  thrown,  mentis** 
ed  only  one  seijeant  More  Cameron,  who  is  of 
a  character  and  situation  very  similar  to  thatef 
Allan  Breck,  but  with  this  very  material  differ- 
ence indeed,  which  rendered  it  impossiblo  for 
that  solution  of  the  question  to  pass,  that  Ser- 
jeant More  had  not  been  seen  in  Appin  for  seve* 
ral  years  past ;  and  surely  the  absent  wandcnr 
could  not  do  it. 

But,  next,  and  more  closely,  the  only  known 
quarrel  that  any  body  had  with  the  ciecetsed, 
was  that  of  this  pannel  James  Stewart,  about 
his  own  removing  the  last  vear,  and  the  ro« 
moving  of  other  tenants  of  Ardsbiel  this  ycar| 
into  which  quarrel  his  former  pupil  or  ward» 
and  his  intimate  friend  Breck  Stewart,  bad 
most  vehemently  entered,  and  discovered  that 
on  several  occasions;  and  that  heconsiderad 
it  as  a  cause  for  deadly  or  mortal  hatred,  inso* 
much  thai  the  pannel  himself  hath  declared, 
««  That,  if  Allan  was  guilty  of  the  murder,  be 
believes  it  behoved  to  be  on  account  of  the  dio- 
tiirbance  given  to  the  tenants  on  the  estate  ef 
Ardsbiel ;  and  knows  no  other  cause." 

And  more  closely  still,  ^ou  have  heard  the 
evidence  of  what  passed  immediately  befbrs^ 
and  after  this  muroBr,  of  the  behaviour  and  ae^ 
tions  of  this  Breck  Stewart,  who  had  fbroMriy 
disphiyed  his  hatred  to  the  deceased,  ftr  tlHS 
veiy  cause,  frivolous  and  oiQUSt  as  it  wae«  Om 
the  10th  of  May.alFanmdoicb,  witkis  eaili 


fm  Murder. 

Gleotiro-«  hous«,   he  gets  iotelHgence  of 

;re^«  molioos,  a  ad  design «  to  proceed  in 

*ng   tbe  teomnts  oj   Ardsliid,   when   he 

return  from  Fori-WiUiaro.     On  Mon- 

Jth  be  cornet  to  the  ^nnel's  bouse, 

J«yi  aside  his  French  dress,  and  jiuis 

i  tmaatry  dre»  beloDging  to  the  [^Qtid; 

mtliimine  babU  oext  day,  sets  out  to  Bal- 

''  '    b^rd  by  the  ferry  ot er  which  the  de- 

WAS  to  return  ;  from  thence  be  goes  to 

ftistera  of  the  panovl^s  in  tbe  neigb- 

I  he  returofi  to  iiallachetish  on  Wed- 

remaitis   there   that    night,  and   till 

III  next  day^  when  be  lakes  a  tithing* 

hii  hand,  a  fit  pretext  for  going  out 

1  for  staying  iome  lime ;  but,  soon 

fiabiog'rod  was  laid  aside^  and  he 

of  bis  real  game  ;  he  calls  aside 

n,  and  eoquirei  if  G I  enure  had  yet 

the  ferry^  and  beinjf  asaured  be  was  not, 

iM  otr»  and  was  never  again  seen  about 

it  ferry,  or  tbe  bouse  of  Ballacbebfib  ;  but  a 

hours  after,  that  same  niii^hl,  and  when  the 

bad  been   committed,  be  i a  seen   by 

Mackionish,  ihe  in  a  id  servant  of 

iib,  at  tbe  eroal  bouse  in  ibe  moor  of 

liab !    and  if  Donald  i^ieivurt  «paaki 

there  siho  he  saw  liiin,  and  charged  bim 

Willi  the  niunler.     Here  was  iben  the  deserter* 

nan  a  foreign  soldier,  and  nne  declared  morlat 

aooiy  of   tbe  deceased,    enquiring    for   the 

^tttuvd  a   tittle  before  be  passed  the  ferry  ; 

iij,«aaik  afWr  tbe  murder,  fuuud  in  llie  bill, 

ttVlDtlio  apot  where  it  happened,  and  adjoin* 

iac  to  the  house  where  he  bad  lodged  the  nii^bt 

hum^i  but  to  which  be  never  returned  ;  but, 

toMeail  of  that,  wanders  in  the  fields;  beats  up 

Gfeaco  and   bis  mother  betwixt  three  and   four 

b  the  moniing ;  leli^  tbem  Glenure  was  mur- 

fa«d,and  be  was  going  abroad  ;  takes  leave  of 

Ibtm  St  the  floor;  retires  from  thence  to  a  deu 

tvidesarty  tlie   heugh   of  Corryoakeigh   in 

KHlbaaeoon^  where   be  was  to  wait  tor  bis 

Ssiftafid  bis  promised  viaticum  ;  and  where 

Mttitrit  not  even  venture  to  approach  the  bou- 

iMft'f  house,  ejccept  to  come  lo  ibe  door  or  the 

^Hi4(hv  in  the  night;  and  when   he  had  got 

JkMt  MoeBaaries  ne  waited  for,  withdraws,  as 

llfiaposed,  a<cross  the  kingdom,  over  a  tract 

tfnaors  and  mountains  uninhabited,  till  be 

Qtie  to  bis  uncle^s  bou&e,  and  is  by  him|  as 

^  •§  every  body  else  who  knew  him,  re- 

pBiiatid  believed  to  be  tbe  murderer.     And  I 

■dao  iloubt,  gentlemen,  but,  after  the  proof 

^ittlbese  things  which  you  have  beard,  you 

•iQi  ie  entirely  satisfied,  that  he  was   truly 

*^;  and,  upon  that  persuasion,  will  proceed 

iilba  main  question  that  is  directly  before  you, 

BitMiy,  tbe  eviijeiice  of  the  accesision  of  ibis 

ftaod  to  that  murder,  which  may  be  summed 

*f  ia  ilie  aKicles  following : 

*"      of  all,  That  it  was  the  quarrel  of  tliis 

against   Gleoure,  thai  bad  been  only 

tip  and  espoused  by  Breck  Stewart^  for 

I  Breck  committed  tbe  murder  itself,  as 

late  actor ;  the i|uarril^  a«  you  have 

Of  the  cAUae  of  oflVoct  so  btgbly  re- 


A,  D.  1752- 


[S0» 


sented,  was,  that  this  pannel  was  blmself  re<^ 
movad  from  his  possession  last  year  by  Ole* 
nure,  who  at  the  same  lime  » iihdrew  from  the 
pannel,  or  forbore  to  employ  him  in  the  office  of 
an  assistant  or  sub-factor,  which  had  giwetk 
him  interest  and  intineuce  with  tbe  lenanla  of 
Ardshiel ;  and  that  this  year  be  was  insisting  to 
remove  three  or  four  tenants,  whom  the  (laDnel 
had  lately  placed  there;  in  all  which  AWstn 
Breck  bad  no  personal  interest  or  concern  t 
a  strange  cause  of  offence,  1  admii,  to  bo 
90  highly  taken  up,  and  so  deeply  resented! 
but  every  provocation  works,  according  to 
tbe  temper  or  turn  of  miiftl  of  I  he  jiersofi 
who  receives  it;  and  what  those  of  the  pau- 
nel  were  in  this  respect^  you  have  heard 
from  the  evidence,  and  Imi  c  seen  in  bis  ctm^ 
duct  before  yon,  when  he  himself  objecled  lo 
Stewart  in  Lngnabaw,  as  an  incompetent  wjt- 
ncGs  against  bim;  for  that  the  iMiinesa 
bore  him  capital  enmity,  because  be,  tbe  pan- 
nel, bad  been  instrumental  in  causing  tbe 
witness  to  be  removed  from  the  pof^cssion  at 
Aiicbarn,  in  which  the  pannel  succeeded  him  ; 
nay,  tbe  pannel  can  ies  this  raadaess  so  f^r^  at 
to  have  threatened  Ew;in  Macintyre  and  bit 
relations,  or  posterity  (a  poar  herd  who  bail 
never  served  the  pannel  himself),  iur  no  other 
otl'ence,  than  that  lie  engaged  to  be  ht-rd  in 
CampbtiU  of  Ballieveolan,  tbe  tenant  who  sue* 
ceeded  the  pannel  in  the  farm  of  Gleoduror, 
from  which  be  was  removed  last  year. 

Tbe  second  Anicle  in  proof  is,  tbnt,  in  con- 
seqtieoce  of  the  deep  resentment  conceived  by 
the  pannel  for  this  supposed  injury  of  tbe  re- 
movings,  be  dibcnrered,  upon  several  ncca* 
sious  previous  to  this  murder,  an  intention  op 
desire  to  lake  away  the  life  of  Glenurc :  thia 
he  expressed  to  Appin^s  bouman  in  u  most  in- 
veterate manner,  that  be  would  be  willing  to 
crawl  upon  his  kne^  to  a  window  to  shoot 
Glenure:  but  tbei'eafteT  he  proceeds  farther 
than  expressions ;  bis  conversation  with  the 
Maccolls,  his  own  servants,  in  tbe  brew-bouse, 
about  Christmas  last,  could  be  intended  for 
notliing  but  to  instigate  tbem,  either  by  ibem- 
selves,  or  by  finding  out  proper  instruments 
amor^g  five  common  people  of  Appin,  to  cut  off 
Glenure:  and,  when  the  late  removings  came 
to  be  in  agitation  last  spring,  which  tbe  pannet 
set  himself  in  oppose  witb  all  bis  loigbt,  it 
appears  that  bis  malice  and  fury  again !$t  Gle- 
nure was  increased  ;  witnesa  bis  conversation 
Willi  bis  two  landlords  on  bis  way  to  Edin- 
burgh, and  wiib  Mr.  J>laclaren  of  Stirling,  his 
fellow-traveller  part  of  the  way ;  in  wbicb, 
among  other  things,  the  pannel  told  tbem,  that 
be  bad  actually  sent  Glenure  a  challenge  to 
fight  bim  with  pistols  ;  and  told  Mnelaren  (whO' 
says  he  found  tbe  i emoving  was  much  at  tbe 
pannel's  heart)  that,  if  be  should  gel  relief 
neithfr  at  Edinburgh  nor  at  tbe  British  parlie- 
raeut,  be  would  take  the  only  remedy  that  re- 
mained. Now,  to  a  man  that  laboured  under 
tbia  distemper  of  mind,  it  was  natural  or  inci- 
dent, that,  after  be  had  returned  from  Edin- 
burgh ju  the  eud  of  April,  with  such  degree  of 


SOT]  25  GEORGE  IL 

lUGcets  as  to  obtain  a  list  od  bis  Uil  of  suBpen- 
tion  ;  and  had  some  bopei  pven  him  at  Edia- 
bnr^h,  that  when  the  baroot  of  Exchequer 
should  meet  they  would  couotennaud  these 
remoftngs;  when  he  had  called  the  tenants 
together,  and  acquainted  them  with  these  ope- 
rations of  his  on  their  behalf,  and  sent  them 
with  a  notary  on  the  Ist  of  May,  to  intimate 
thesistto  Glenure;  and  when,  after  this,  he 
learned,  on  the  11th  of  May,  that  Glenure  had 
Ifone  to  Edinburgh  in  his  turn,  got  the  sist  re- 
mofed,  wss  oome  back  to  the  country,  and  to 
proceed  in  the  remo? imrs ;  that,  from  thia  fresh 
disappointment  and  affront,  that  must  lessen 
him  m  the  eyes  of  those  tenants  whereof  he 

.  bad  assumed  to  be  protector,  the  resentment 
and  hatred  which  he  formerly  bore  Glenure 
should  be  yet  higher  inflamed,  and  drife  him 
on  to  send  out  Breck,  his  emissary,  to  cut  off 
the  gentleman  whom  they  both  looked  on  as 
^eir  enern^,  in  hopes  of  safety  to  Breck,  the 
•dor,  by  his  getting  abroad,  where  he  was  to 
go  however ;  and  to  himself,  the  mandator  and 
accomplice,  by  his  remaining  in  appearance 
quiet  at  his  own  house. 

And  tiie  evidence,  that  in  fact  this  was  the 
case,  consists  of  these  further  cireumstanccs,  of 
which  you  have  heard  the  proof;  that  the  ac- 
tual murderer  of  Glenure,  in  the  quarrel  of  this 
God,  and  in  resentment  of  which  this  paunel 
discovered  designs  or  intentions  against  bis 
life,  when  the  quarrel  itself  was  wrought  up  to 
the  highest  pitch,  sets  out  from  the  pannel's 
bouse,  leaving  his  own  clothes  and  baggage 
there,  dressed  in  a  suit  of  the  pannel's  clothes 
filter  for  the  purpose,  as  being  less  remarkable 
or  distingtiisbed  than  his  own ;  goes  directly 
and  puts  himself  in  the  way  of  Glenure;  passes 
bis  time,  whilst  he  waited  for  him,  visiting  the 
sisters  of  this  pannel  in  that  neighbourhood  ; 
and  with  Stewart  Ballachelish,  who  was  also  in 
the  general  interest  of  the  pannel  in  respect  of 
the  removings ;  retires,  when  the  bloody  deed 
was  done,  to  a  deep  retreat  that  was  not  tar  off; 
where  he  remains  till  this  pannel  caused  to  be 
sent  him  his  baggage  and  a  viaticum  of  money, 
such  as  he  could  afford  or  scrape  together,  to 
enable  the  assassin  to  get  off. 

And  that  this  aid  and  succour  was  sent  in 
consequence  of  a  concert  betwixt  them,  pre- 
vious tojhe  murder  itself,  appears  from  these 
circumstances ;  that  on  the  morning  of  Thurs- 
day, on  the  evening  whereof  the  murder  was 
committed,  the  pannel  sent  an  express  to  Wil- 

'  liam  Stewart  at  Marvburgli,  earnestly  pressing 
him  to  send  him  eight  pounds,  as  the  price  of 
cows  not  yet  delivered ;  and  it  hath  not  been 
explained,  and  far  less  proved,  on  the  part  of 
the  pannel,  who  is  a  man  of  some  credit  and 
substance,  though  he  had  then  but  little  cash 
in  hand,  what  oilier  pressing  exi>;eiicy  he  then 
bad  for  an  immediate  supply  of  money,  when 
be  was  living  upon  his  own  farm  at  Aucharn  ; 
be  has  not  sheweil  you,  that  he  had  accepted 
m  bill  payable  on  Friday  the  15ih  of  May,  or 
ihetermofWhiUunday  thisyear,  or  that  be 
WM  under  distress  of  any  kind,  that  iMairad 
" "    iiapply/  ^ 


Trial  of  Jama  Stenartf 


[aoB 


Again,  as  the  messenger  of  Thnnday  broog  ht 
back  no  cash,  there  is  another  seut  oo  Friday, 
being  the  packman,  the  cousin-fferman  of 
Breck  Stewart  himself,  who  carried  two  con- 
missions  from  the  pannel :  First,  That  by  a| 
meaps  he  should  send  him  five  gnineM,aBA 
this,  though  William  Stewart  should  borrow  it 
from  twenty  purses ;  and,  3dly,  To  tell  Wil- 
liara  Stewart  to  give  credit  in  five  pounds  ster- 
ling to  John  Maccoll,  bouman  to  Apoia  at 
K<Mdisnacoan,  in  case  he  came  to  demaira  tiicli 
a  sum ;  the  pannel  at  the  same  time  telling  the 
packman,  when  he  gave  him  this  mfagt, 
that  Allan  Breok  was  about  to  leave  the  cow 
try ;  that  he  might  be  suspected  of  GleniBM^ 
murder;  and  that  it  was  incumbeot  apon  ImMi 
the  panne],  to  supply  Allan  Breck  in  tnoii^. 

Now,  gentlemen,  to  this  message  Iron  the 
pannel  to  his  friend  William  Stewart,  by  tht 
cousin  of  Breck  Stewart,  you  are  to  join  ano* 
ther  corresponding  circumstance  dcpoacd  by 
the  bouman,  to  which  I  must  call  for  yonr  par« 
ticular  attention;  for,  in  relating  wbai.pnind 
betwixt  him  and  Allan  Breck  on  the  aftcnmn 
of  Saturday  the  16th,  he  swears,  '*  That  Athn 
Breok  then  told  him,  he  must  remain  tbcBa,l9l 
some  necessaries  he  expected  came  to  him} 
and  that,  unless  some  money  csme  for  hlni  h^ 
fore  next  morning,  he,  the  Muman,  nDuatga  to 
Fort- William  with  a  letter,  which  Allan  Bmk 
then  wrote  to  William  Stewart,  merchant  la 
Maryburgh."  Ooes  not  this  as  plainly  wfmk 
out,  *  rebus  ipsis  et  factis,'  the  concert  hetwht 
the  pannel  and  Allan  Breck,  before  they  [itoiy 
as  if  you  had  beard  it  from  witnc 
at  their  conference  ?  Breck 
upon  an  exploit,  which,  if  performed,  it' 
require  a  little  money,  of  which  he,  it  i  _ 
was  then  destitute,  or  very  scarce,  to  cniry  I 
off  the  country;  the  pannel  himself  was  ml 
then  in  cash  ;  but  the  assurances  he  saftto 
Breck  must  have  been,  that,  without  Tom  tf 
time,  he,  the  pannel,  would  send  the  money 
directly  to  Breck  at  Koalisitacoan,  or  elhv- 
wise  send  him  credit  upon  his,  the  pannolV 
friend  and  correspondent,  William  Slawai^ 
merchant  in  Mary  burgh.  Their  rcapeoiiia 
actions  correspond  exactly  with  this  conesrif 
and  arc  unaccountable  without  supMslif 
it.  On  Friday  the  pannel  sends  to  Williaai- 
Stewart  for  five  guineas  in  cash,  and  an 
to  give  credit  to  Appin's  bouman  for  five  [ 
more,  in  case  he  should  call  for  it.  On 
day  Allan  Breck  being  with  this  bouman,  ata 
I  place  distant  from  the  panoel,  tells  the  bomnaat' 
j  that  unlebs  money  came  for  him  before  ncfll 
I  morning,  he,  the  bouman,  muat  go  to  Fort^ 
'  William  with  a  letter,  which  Breck  then 


to  the  said  William  Stewart,  merchant  at  Mart- 
burgh  ;  and  such  a  letter,  that  Breck  teUitnn 
bouman,  if  he  was  catched  with  it,  he  mnstaai 
it  bpfore  it  was  found  upon  him. 

These  circumstances  are  so  pinching  i^ 
the  paunel,  upon  the  capital  point  now  inl 
that  he  has  made  an  Atlemnt  le 
awer  or  solution  of  thin  difianlty 
bringing  Katharine  Maoinvriutt 
Ballatntlithi  to  danaaiu  ti^ 


'•Allan  fireck  aI  Uie  g^at^iouse  upan  Thursday 
mgkt^  **  Ih^^'^  ^" '"  '!t»siri?d  tierlotd)  DoonJd 
Stt^rnrt  in  I!  hi  ^u  to  ibe  pannd,  and 

«|flairr  him  in  i.  . nd  Alluii  mniiey  ;"  and 

ihal  «bt*  tldifer^d    tlii«  message   to  Dooald 
Stewart  Uiat  naiiiMitifhl. 

ilfmioi   thin  Duiiald  Stewiirl  hath  deposed, 

.noi  tibfti   ICikiiiaiHue   Aliu'tnntiib   delivered  him 

iflf  ittrh  fii^sas:e  from  Aliim,  hut,  ^'  Thai  ihe 

ctM  iiim  fHit,  and  told  turn  that  Allau  Breck 

.WitlMl  himt  ami  was  a  Htite  above  the  house 

im  ibe  br»e  or  htll,  where  the  depaneot  went 

mi  met  Altau  Hrecic,  who  then  lulU  the  depo- 

MAL,  tie  wai   |{t>ing  iiumediuielv  to   leave  Ihe 

'4(imfiloni,  and   wa!}  ufrnnt?  then  far  Koalisiia* 

«a4ii ;   iiod  desired  the  de|ftoneiU  tu  acq^uaint  the 

fk»M»*<l  (hrtt  he  wau  gone  to  ihat  place,  aiul  tie- 

n,  ir  pOBsihle,  to  send  hnn  inuney  thi?r*» ; 

;   -  deponent  th^u  promised  to  acquaint 

iarttes  Sicwari  of*  the  ahote  nie^sa^.'*     And 

ihtt  Donutii  Stewart  further  deposes,  "  That^ 

ifirr  his  coover»atlofi  with  the  panoel  about 

•efjttiBt  More,  he  detivered  the  above  nieasoge 

from  Allan  Ureck  to  tha  pannel ;   and  Ihat  the 

piatie)  Jilt  not  8;iy  whether  he  was  to  send  the 

iDoaey  or  not :  thai  thincouveriiaiioij  happened 

•baul  ten   o*clpck  in   the  foreauon  of  Friday 

tht  IMli  of  May   last;    and  that  there  waa 

oobody  |iie«ent/' 

Aud,  as  1  think  Ihe  only  pUusibte  tbiugr 
ftwH  lor  defence  of  the  pannel  coosivts  of 
tIesetM'O  festiuKiriies  I  htivtt  juttt  repealed,  1 
fiitt«t  kt^  yoiir  attention,  gt^ntteuien,  to  tlie  re- 
■aib  I  hiiTc  10  offer  uiH>n  ihein,  that  you  may 
blhe  betti^i'  ahle  to  dtscero  ivhat  degree  of 
^^kl  or  elferi  ibey  deaerve,  or  whether  tbey 
^Mrrve  aoy  ut  all. 

Aad,  tirVi  of  al1»  ibia  Donahl  Stewart  in 
oepibew  Mod  aon-in-law  to  Ballacbehsb,  and 
liiai  in  family  with  him ;  and  it  appears  the 
whole  fimdy  nre  io  the  t^t^ncral  interest  of  the 
Btoafl  i  i'vT  John  ^iewart  the  younffer  **f  fiaU 
wMibi  the  bnuher-iolnw  of  this  Oonald« 
lHb^tfi<Me4l,  **  Thai,  in  the  timeof  the  spring- 
in  tills  place  in  Mny  laat,  he  was  sum- 
to  be  of  the  jury  ;  but  that,  at  the 
it  reipieMt  of  the  piiooel,  thnt  he  should 
W|in^(ent  %\n\i  ;i  n<ULir\  nl  liu-  rriiiovint^  of  the 
iRttQta  froui  the  cstaie  ot  ArrlstiiH.  he  vinB 
'jp||g;oit  tbai  ei'fand  to  the  pHiiueCs  houne,  bui 
lilUinH  lo  Appu),  upon  heuriuiZ'  of  the  murder 
iMUttitted  that  day  ;'^  and  han  further  deponed, 
^TW  he  wu«  ui  Edinliur^li  io  Au|^iiiit  lawt, 
Wi  ma^  prevent  ai  eoOMulltitions  of  the  paoners 
k»yfn*  and  Ht^eotfi  louchiuyf  hi«  deteoee:'' 
lf«ti  are  therefore  to  weijifh  Iheeredtt  due  to  a 
lioflr  witue>u»  of  that  fumdy,  swearmg  lo  a 
I  bf  iwtxt  the  punocfil  and  him  > 
'ody  pre^f  nl,  that  tliey  have 
H  ii>  lit.'  provi'd  for  ilie  panneK 
«'  nirfufly  ^iUm  rveil  to  yon,  ill  re- 
V  i.l^^Mce  on  ihene  two  wrtoe«<se«, 
II  ibe  servant  maid  of  HaIU- 

»■...:  i«  a  manifeat  discrepancy 

ibeni,  ttiousrh  it  ir  not  a  U»ng  time 

tact  they  depose  to  happened,  and  it 

kilh  rrer  amce  beeu  ibe  subject  of  alteutioo 


A.  D-  175i. 


[210 


fir 


and  conversation  in  the  country  where  thev 
hre  i  for  the  maid  Mays,  ^*  8he  received  the  full 
meauao^e  from  Allan  Brpck,  and  delivered  it  to 
Doojfcld  Siewarl  »  and  that  i»he  did  not  desire 
Donuhl  to  1(0  u|}  to  Allan  in  the  hill,  nor  dut 
Allan  Bnck  desire  her  to  send  Donald  io  hint 
thert:*-  Ami  yet  Donald  swears,  *'  That  tlw 
ma(d  informed  him,  that  Allan  Breck  wanted 
bim,  snd  tohl  iiiai  v^here  Breck  was  ;  and  that 
Breck  himself  tfuve  him  the  meBsa^e  to  he  de- 
hvered  to  Ihe  pauriet ;  which  he  didiverod  ac- 
cordingly about  fen  o'clock  next  day  to  the 
pannel,  whom  he  met  alone  in  the  lields/^  8o 
that  ihe  whole  of  this  tale,  attetiipied  to  be 
proved  by  these  two  witnep^ses,  nppejus  ex- 
tremely suspicious,  and  thuir  accounts  haoit^ 
not  well  together. 

r.illy,  Donald  Ntewart'ti  tale^  if  it  he  true,  and 
if  it  be  also  true,  tliul  tlie  parkmau  wiis  not 
sent  away  by  the  oontiol  to  Kort-Wdharn,  till 
iihout  twelve  oVIock  on  Friday » tnf}(ht  «orve  lo 
account  for,  or  to  have  gfiven  rise  to  the  pnok- 
nmu'i  meaaage  on  that  day :  hut  how  will  it 
serve  lo  account  for  the  lormer  e:bpres«  sent 
U|ion  the  tuoruini^  ol  Thursday  by  the  panneli 
to  the  same  VViUiam  Stewart  at  l^iarybarjrh,  to 
■end  him  down  immeditttdy  eight  pouuda  itor* 
liiigf  hy  the  hearerf 

4thly,  If  it  be  true,  wbirh  both  Willianfi 
Stewart  and  his  wife  depose,  that  the  packintin 
came  to  them  at  Tort- William,  upon  Friday 
betwixt  ten  and  twelve,  txs  the  husband  snys,  vr 
about  mid-day,  as  the  vf  itesays^  llien  the  pack- 
man must  have  be^n  misiukcn  (u  ihr  h'>ur  that 
he  was  dispatched  by  Ihe  pannel  from  hia 
house,  when  he  sjtys,  it  was  about  twelie 
o*clock  that  day  ;  and  if  Stewart  and  his  wiftt 
are  rathfr  to  he  betievetl,  tlial  he  ^^ot  to  Port- 
William  by  noon,  he  must  have  bcf  n  dispatched 
by  the  pannel  long-  before  ten  o*elock,  when, 
Donald  Stewart  says»  be  dehveretl  Breek'C 
tuessage  to  the  panurh 

And,  lastly,  Ibut  which  affords  a  solid  and 
satisfy iu|f  reply  to  the  defence  founded  on 
the-se  two  testimonies^  of  the  «oin-in  law  and 
servant-maid  of  Uallacheli*)h,  t^  thsi  coosidera- 
tictn,  th:U  suppoeinhf  it  true,  tor  Ariftiutenl's 
8ake,  which  they  have  sworn  as  lo  iho  sub* 
stance,  that  Breck  sent  notice  1»\  D^M»:i!d  to 
ihe  pnnnel,  Ihat  he  was  Qfoinif  to  I  »i«n^ 

arid  ivdoieil  luimpy,  how  will  th  <  ii«r 

what  w,ii  obseivfcfil  a  little  while  ago,  *^of  iU« 
pannei'S  wriiinj:  a  letter  uprm  %uiti>rdav  -itier* 
nrvon,  lo  he  sent  by  the  botnnno  to  iViltiam 
Stewart  at  iVIiirybur^h  ?**  For  though  here  he 
a  lale,  I  am  sfaid  lately  invented  by  the  pan- 
nel, of  a  mrsiiugp  from  Brrck  to  hifu  after  the 
murder,  to  teli  the  place  of  hi<«  retreat,  aod  that 
he  wHiited  mouey,  he  bath  forgot  to  provide 
wttueHsea  tor  proving  another  thing,  anii  tkat 
is  a  mes^iuge  in  return  from  (lie  piioht-l  lo 
Breck,  to  give  Breck  notice  tiow  the  nion^y 
wfiLS  to  be  f'lond  i»r  turni'ihett,  imniely,  by  the 
panners  Ifiving  crcdti  to  him,  or  the  bouman, 
upon  William  Stewart  at  Maryburgb  ;  tor, 
without  such  ootice,  how  could  Breck,  from 
the  bottom  of  bis  beugli  ia  KoabsnaooAu,  ao 


Sll]  25  GEORGE  II. 

exactly  co-operate  with  what  the  pannel  was 
doinji^  from  his  own  hotitie  at  Aurharn,  as  to 
write  a  letter  on  Satiiniav  to  the  same  William 
Stewart,  merchant  in  Marybtirfi^h,  to  he  sent 
by  Appin's  h'luman,  to««hich  William  Stewart, 
on  Friday,  the  |>annel  tends  Breck's  cousin,  to 
bid  him  ^r\ve  credit  to  Appin's  bouroan  for  fi?e 
pounds,  ii'he  should  call  lor  it? 

This  circumslaiK^,  therefore,  which  is  quite 
unanswered,  as  well  as  the  express  on  Thurs- 
day morning  for  money,  before  the  murder 
happened,  makes  the  evidence  before-men- 
tioned remain  in  full  force,  the  tales  of  the 
messaife  to  the  panneL  mentioned  by  these  two 
witnesses,  notwilh!>tandini;. 

There  hath  been  hardly  any  thing  else 
proved  for  the  pannei'«4  tiofence,  that  merits 
a  reply :  it  is  of  no  moment,  that  this  was  not 
the  lirst  time  that  Breck  Stewart  made  use  of 
the  panuel's  habit  or  clothes  above-mentioned  ; 
he  had  usetf  them  once  before  in  the  month  of 
April,  when  he  went  to  Uannoch,  whilst  the 
pannel  wan  at  Ediubnrs^h  ;  bnt  it  was  not  the 
le-is  true,  that  this  habit  %vas  far  more  commo- 
dious for  the  murderous  purjtose  he  went  about, 
when  he  lefi  the  pannel*s  house  on  Tuesday 
morning  the  ISih  of  May,  than  his  own  French 
clothes  would  hare  been. 

Again,  it  is  true,  that  on  the  morning  of 
Thursday,  he  writes  a  letter  for  a  notary,  to 
take  protests  against  the  removings,  at  the 
same  time  that  be  writes  tor  the  8/. ;  and  his 
counsel  have  said,  that  this  was  pursuing  quite 
another  scheme :  but  this  is  by  no  means  con- 
clusive, to  prove  his  innocence;  he  was  galled 
'tnd  incensed  by  these  removings,  and  liis  pro- 
test by  a  notary,  after  his  bill  of  suspension  was 
refused,  would  be  of  verv  little  avail ;  and  yet 
he  writes  fur  one  to  attend,  to  be  provided  for  all 
events,  as  it  was  a  possible  case,  that  the  in- 
tended murder  of  Glcnure  might  have  been 
prevented,  by  his  going  another  road  than  the 
common  one,  or  other  accidents. 

And  as  little  can  it  avail  the  pannel,  that, 
after  he  was  in  custody,  he  wrote  a  letter  to 
Mr.  Macfarlane  at  Edinburgh,  describing  Allan 
Breck,  and  expressing  a  desire  that  he  might 
be  apprehended  ;  for  this  was  a  letter  shewn  to 
colonel  Crawfurd,  the  commanding  officer,  and 
now  appears  to  have  been  a  manifest  dissimu- 
lation, when,  by  the  shewing  of  the  pannePs 
own  defences,  he  sent  money  to  Allan  Breck  in 
order  to  help  him  to  escape,  on  account,  as  he 
says,  of  his  relation,  and  having  been  formerly 
his  ward  or  pupil. 

When,  therefore,  gentlemen,  you  shall  con- 
aider  and  duly  weigh  the  whole  facts  and  cir- 
cumstances proved  before  you,  and  which  I 
have  now  resimied ;  and  when  to  these  I  have 
last  mentioned  y  ou  >liall  add,  that,  besides  the 
clothes  and  the  money  furnished  to  Breck, 
there  is  a  strong  presimiptive  evidence,  that  the 
Tery  lesser  or  shorter  gun  profluced  before  you, 
and  prove«l  lo  have  been  the  panuil'8,and  which 
is  of  the  wider  bore  of  the  two,  was  the  ? ery 
iDatrumeiit  w  ith  which  the  murder  was  com- 
Miitted  ;  fur  dodc  of  the  lerruits  saw  il  upon 


Trial  of  James  Stewart^ 


[ei9 


Thursday  night,  when  they  hid  the  arms ;  and 
when  they  saw  it  on  Friday  night,  wheo  the 
arms  were  carried  up  to  the  hill,  it  was  empty  ; 
and  captaii:  Chapeau  and  others  have  deposed, 
it  appeared  to  them  to  have  been  lately  fired, 
when  he  found  it  ou  the  93d  of  Alay. 

That  the  jiannel,  on  the  first  notice  be  re- 
ceived of  the  murder  being  over,  discovered  an 
apprehension  that  he  himself  might  be  brought 
to  trouble  on  that  account. 

That  he  made  an  attempt,  tliongh  a  very  an- 
availing  one,  to  throw  the  suspicion  ot  the 
murder  upon  serjeant  More  Cameron,  who 
had  not  been  in  that  country  for  many  years. 

That  the  pannel,  being  in  custody,  sent  a 
message  by  his  barber  to  his  servants  to  keep 
their  mind8  to  themselves,  and  he  would  taks 
care  of  them. 

That  his  wife  and  one  of  his  children  have 
too  strongly  discovered  their  sense  of  the  iin<- 
portanceof  the  article  of  the  clothes  furni8he4 
by  the  pannel  to  Breck,  by  8we^^ing,  that  Breck 
left  their  house  in  his  own  French  clothes, 
though  the  wife,  at  least,  most  certainly  knew 
the  contrary.* 

I  say,  gentlemen,  when  you  put  all  tbest 
things  together,  you  will  form  your  opinion, 
and  pronounce  acc<irdiiTgly,  whether  this  pan- 
nel is,  or  is  not,  guilty  of  accession  to  this 
horrid  murder  P  In  all  circumstantial  evidence, 
there  is  a  possibility  of  innocence,  even  without 
supposing  any  of  the  witnesses  perjured :  for 
example,  in  the  case  of  Stewart  Abercrombie, 
which  you  heani  mentioned  in  the  debate  on 
the  relevancy  in  this  trial ;  it  was  urged  for  him, 
and  very  truly,  that  some  other  man  without  a 
hat,  as  well  as  he,  might  have  been  the  mur^ 
derer  of  the  deceased ;  for  there  was  no  witness 
who  could  swear  he  saw  him  do  it:  and  in  the 
other  case  of  Maccowan  you  heard  mentiontd, 
who  was  convicted  princif>ally  upon  a  shirt  and 
stockings  being  found  in  his  |»ossession,  which 
the  poor  woman  had  carried  with  her  from 
home;  it  was  possible  that  Maccowan  might 
have  got  these  garments  immediately,  or  by 
progress,  from  some  other  fierson  who  had 
robbed  or  murdered  the  poor  woman.  But,  in 
both  these  cases,  the  pannels  were  convicted, 
and  suffered  accordingly. 

And,  in  the  present  case,  if,  notwithstanduig 
what  you  have  heard,  you  can  believe,  that 
Allan  Breck  Stewart  committed  this  murdsr 
purely  of  his  own  accord,  anil  without  any 
privity  or  previous  concert  with  this  |iannel; 

*  Lord  Coke,  af^er  reporting  the  famons 
Case,  repeated  after  him  by  loni  Hale,  of  erro- 
<  neous  conviction  upon  circumstantial  evidenoe, 
and  execution  of  an  uncle  for  the  murder  of  hit 
niece,  says,  **  We  have  refmrted  this  Case  for 
a  double  caveat,  1st,  to  judges ;  that  they  in  case 
of  lite  judge  not  too  hastily  upon  presumptions: 
and  2d,  to  the  true  and  innocent  man,  tnat  be 
never  seek  to  excuse  himself  by  false  or  uodon 
means,  lest  thereby  be,  offending  God  the  an* 
thor  of  truth,  overthrow  binieirM  tho  anck 
did." 


213] 


for  Murder* 


A.  D.  1752. 


[S14 


ud  tbe  mid  ic>ven  by  the  pannel  to  carry  bim 
off,  was  out  of  mere  oompa^OQ,  and  a  resolu- 
lioB  firvt  taken  after  the  pannel  had  heard  of 
the  murder  itself,*  then  surely  it  will  be  your 
doty  to  acquit  the  pannel ;  for,  better  that  this 
ier,  atrociooa  and  scandalous  as  it  is,  should 
am  onavenn^ed  by  human  justice,  than  that 
one  ianoeent  man  should  suffer. 

Bat,  on  the  other  hand,  if,  upon  the  whole 
cfidenee,  you  cannot  believe  the  psnnel  inno- 
cm^  but  are  coonnced  in  your  own  minds, 
tfciC  be  baa  bean  knowingly  accessary  to  this 
OMrder;  then,  doubtless,  your  duty  to  God 
and  your  country  requires  of  you  to  pronounce 
kia  guilty. 

Mr.  Brova,  for  the  Pannel. 

Gentlemen  of  the  jury ;   I  appear  for  the 

pannel ;  and,  as  this  trial  has  already  taken  up 

m  ficni  deal  of  time,  I  shall  not  follow  the  ho- 

rakla  and  learned  gentleman  on  the  other 

,«•  toaae  things  which  I  conceive  to  be 

to  tbe  matter  in  issue ;   but  shall 

losnm  up  what  I  have  to  say,  hi  as  few 

vordi  as  the  importance  of  the  case,  a^od  variety 

of  ■itmra  to  be  considered,  will  admit  of. 

As  J  am  at  all  times  under  no  small  degree 
tf  copcein,  aa  often  as  I  appear  in  any  case  of 
ihia  nature ;  ao  I  must  acknowledge  f  am  at 
frcsrat  under  greater  concern  than  ever  I  was 
■  any  former  case,  when  I  consider  tbe  many 
isftlvantagea  which  this  unfortunate  pannel 
takours  under. 

In  tbe  first  place,  I  am  under  the  necessity 
tf  entering  the  lists  with  a  learned  gentleman 
•f  ficat  abilities,  and  of  much  more  experience 
iatkcN  matters  than  I  can  pretend  to. 

Bat,  gentlemen,  if  I  have  undertaken  what 
I  as  Bot  sufficient  for,  the  fault  lies  at  the  door 
tf  the  private  prosecutor,  who,  beCore  the  pro* 
HCilisB  was  commenced,  begun  early  with 
ffi*«ifa^ng  the  whole  counsel  at  the  bar, 
vkiM  most  experience  in  these  matters,  not 
■*ilhaB  intention  that  they  should  assist  in 
9iig  on  the  prosecution,  (for  many  of  the 
'  men  who  ^ere  engsged  have  not  ap- 
iat  the  trial)  but  with  an  intention  that 
ibty  ni^t  not  have  it  in  their  power  to  appear 
m  tkt  side  of  the  pannel. 

A  init  prosecution  .scarcely  stands  in  need  of 
■  aivorate  to  support  it.  What  then  shall  be 
■id  of  a  prosecution,  where  the  prosecutor 
dnysirs  of  prevailing  otherMrise  than  by  de- 
priviag  tbe  pannel  of  those  ^bo  were  most  able 
Mdrfrndbim.' 

Fur  my  own  part,  I  chose  rather  to  have  it 
■idof  ine,that  I  had  imprudently  undertaken 
wkat  f  was  not  sufficient  for,  than  »hat  1  had 
nciiaritably  refused  to  give  any  poor  assist- 
aaer  in  my  power  to  a  gentleman,  who  ima- 
fints  that  f  can  be  in  the  smallest  degree  useful 
m  bim. 

*  See  Mr.  Burnett's  observationa  as  to  this, 
in  chap.  14,  of  his  Treatise  on  the  Criminal 
Laflv  Of  Scotland,  p.  S85.  As  to  art  and  part, 
iM  foL  10,  p.  807,  of  tbia  CoUedion. 


I  might  also  take  notice  of  many  other 
hardships  which  the  panqel  has  suffered  from 
close  confinement,  during  more  than  four 
months,  contrary  to  the  great  charter  of  liberty 
in  this  part  of  the  kingdom, — from  the  unwar- 
rantable seizure  of  bis  papers  without  any  legal 
authority— and  from  the  shortness  of  the  time 
allowed  him  for  making  liis  defence :  but  these 
thintrs  have  been  so  fully  insisted  on  by  the 
gentlemen  who  have  spoke  on  the  same'  side, 
that  it  is  unnecessary  for  me  to  repeat  what  has 
been  already  said.  The  facts  have  not  been 
denied  by  the  prosecutor ;  and  as  every  man 
must  see,  at  first  sight,  what  a  prodigious  loss 
it  is  to  a  pannel,  to  nave  access,  for  so  long  a 
time  denied  to  every  person  who  was  capable 
of  assisting  him  in  making  his  defence,  so  f 
must  be  forgiven  to  say,  that  if  this  trial  waa 
at  all  proper  for  a  circuit-court,  (which  may  be 
doubted)  it  ought  to  have  been  brought  on  in 
the  ordinary  form,  by  way  of  presentment,  and 
not  summarily  in  the  form  or  criminal  letters. 
By  the  former  method,  the  pannel  would  have 
have  had  upwanls  of  three  months  to  prepare 
for  his  defence,  instead  of  fifteen  days,  which  is 
all  the  time  the  pannel  has  had,  since  the  cri- 
minal letters  were  executed  against  bim. 

But,  gentlemen,  there  is  yet  another  disad- 
vantage, which  this  pannel  labours  under, 
which  gives  me  more  uneasiness  than  all  those 
I  have  already  mentioned,  and  which,  1  must 
beg  leave  to  say,  I  dread  more  than  all  tbe  proof 
which  has  been  brouij:ht  against  him. 

What  1  mean  is  an  impressioo,  which  has  been 
industriously  rai^ied,  and  artfully  propagated, 
as  if  it  were  some- how  necessary  that  tbe  pan- 
nel should  be  found  guilty  ;  and  as  if  his  being 
acquitted  might  bring  a  reflection  on  this  part 
of  the  kingdom. 

Gentlemen,  I  do  not  expect,  nor  do  I  desire, 
that  you  should  return  a  verdict  contrary  to 
evidence :  but  it  is  my  duty  to  put  you  on  your 
guard,  not  to  allow  yourselves  to  ble  carried  off 
by  passion  or  prejudice  :  and  though  1  have  no 
doubt  of  the  integrity  or  honour  of  any  of  the 
gentlemen  to  whom  1  now  address  myself; 
yet,  upon  this  occasion,  it  is  my  duty  to  say, 
that  if  vou  find  the  pannel  guilty,  either  with- 
out evidence,  or  upon  doubtful  evidence,  you 
will  thereby  bring  the  blood  of  an  innocent 
person  upon  your  own  heads: — 1  say,  nn  in- 
nocent person ;  for  every  man  is  hehl  tn  be 
innocent,  till  such  time  as  he  is  convicted, 
not  by  doubtful,  but  by  legal  and  complete 
evidence. 

And  if  the  evidence  is  insufficient,  uhich  1 
am  hopelul  I  shall  be  able  to  shew,  1  am  under 
no  apprehension,  that  your  acquitting  the  pan- 
nel can  ever  brim;  any  reflection  cither  upon 
yourselves  or  upon  your  country.  It  is  the 
peculiar  happiness  of  this  part  of  the  island, 
that,  in  capital  cases,  the  law  makes  it  neces- 
sary, that  the  whole  of  the  evidence  should  be 
taken  down  in  writing  ;  and  as  that  has  been 
fairly  done  in  the  present  case,  the  auUientic 
record  will  satisfy  every  reasonable  and  think- 
ing person,  that  tbe  grounds  upon  which  you 


215] 


25  GEORGE  II. 


Trinl  ofJamet  Steusart, 


[2IG 


liar^  procreded  were  solid  ;  aud  if  you  bare  lb e 
apprdbiitmn  ot  iiurb,  yt^u  ought  to  disre^rd 
wbot  olbi'rs  mtty  sny  of  you. 

Having  said  so  iimcb  in  tlie  ^ncrBl,  I  tbalt 
now  proceed  lo  cauddf  r  the  crime  wbich  baf 
befo  vburc**d  aifainst  the  paiinel,  mnd  the  efi- 
t)i>r»ce  vrhii  h  bJin  been  bmutjht  in  support  M' 
Ihiil  chsr^e*  As  to  Ibc  crime  itself,  I  readily 
a^ree  w  ilb  i^very  one  of  the  gentlemen  who 
hare  spoke  before  nie,  tbat  it  is  of  so  atroeiouai 
a  nalure,  lUat  wurds  can  hardly  he  found 
atroD^*  ertoufifb  Ut  express,  in  proper  colours, 
its  enormiiy  ;  and  f  shatl  nho  admil,  that  it 
is  hii^bly  nggriivnlcd  from  the  particutar  cir* 
<^umHtances  wbicb  have  been  very  properly 
mentioned  by  the  b«iu<inrahle  cfenlleman  on 
%he  other  side.  But  then  the  prosecutor  would 
do  well  to  ohi»c7rve,  that  the  more  atrocioim  tbc 
crime  is,  the  more  natural  il  19  to  presume,  that 
the  punnel  wo;!  not  ifiiilty  of  iL  And  it  is  my 
duty  to  put  you  oti  your  guard,  that  a  just  in- 
di^uHtion  at  the  lieinousues^s  tif  the  crime  may 
not  lead  you  lo  cortdeum  nilbout  proper  evi- 
dence X  ioi\  bo  welder  foul  the  crime  may  be, 
it  IB  much  better  that  it  should  escape  unpu- 
iitMbed,  ib:fn  that  an  innocent  person  should 
suffer  for  it. 

The  crime  charg^cd  ngainst  the  pannel  Is^ 
that  he  entered  into  a  consspiracy  with  Allan 
Breck  Stewart  to  murder  CoHn  Campbell  of 
Glenure  by  the  hands  of  the  said  Allan,  and 
tbat  the  murder  xvas  accordingly  40  committed. 
Ami  therefore,  before  the  prosecutor  can  pre- 
vail, il  heboves  bim  to  prove,  not  only  that  the 
murder  »as  committed  by  the  bauds  of  Allan 
Breck,  but  aUo,  tbat  tbe  (Ninnel  and  be  were 
preriousty  in  a  coDspirocy  to  commit  tbe  mur- 
der in  tbat  manner 

The  prosecutor  pretends  not  to  have  brought 
any  dii-ect  evidence  of  either  of  these  facts  ; 
but  Ibeg-uilt  ttf  hejth  pannelsi  i«  inferred  from  a 
▼ariely  of  circumstnnces,  which  it  now  helonj^ 
to  nsto  consider,  so  far  as  is  necessary  for  ttie 
defence  ef  this  pannel. 

Aud  here  I  shall  not  dispute  ibe  g-eneral 
projumition  hid  down  by  my  li>rd  advocate, 
•*  That  crimes  may  be  proved  hy  circnni- 
»tance<i.^*  1  achuit  that  any  crime  may  be  so 
provetl  ;  but  then  1  humbly  cootetid,  that  the 
circumstances  oncht  m  be  such,  as  necessarily 
inft^rthetrudt  ttf  die  pannel. 

fn  onler  that  this  matter  tnay  appear  in  its 
prii|H'r  h|;-ht,  I  must  brg  leave  lo  lay  down  ime 
.  general  rule,  which  admits  of  00  exception,  and 
ought  lo  be  stiicllj  fnllnwcd  in  jud^mi^  of  till 
cireumslantiale evidence  ;  which  is,  that  where 
any  fact  proved  spainst  the  pannel,  is  rn  its 
own  nature  such,  tbnt  it  will  ualiiraJly  aiU 
init  either  of  a  jfood  or  a  bad  cuo^truciioii,  that 
GonKtruclion  out^ht  always  to  be  received  which 
IS  f«tnurah!e  for  ibe  panneL 

Tins  is  founded  upon  tbe  first  princtpic  of  na* 
tttral  justice,  which  directs  us,  "  To  do  to 
others  as  we  wnnhi  have  them  to  do  lo  us:^' 
ftod  as  every  one  of  you  would  think  yourself 
hftfdly  used,  if  a  bad  construction  were  put 
upou  any  action  of  yours,  which  would  mta- 


rally  bear  a  gtM>done,  the  psnnel  asks  no  morw, 
than  tbat  you  should  judge  of  his  action*  by  Ibe 
same  rule. 

And  here,  gentlemen,  I  do  not  m^aii,  iImI| 
in  a  circumstanliale  evidence,  il  is  nec^svary, 
tbat  every  circumsianee  taken  separttHy 
should  be  conclusive  r  if  that  were  nereasary, 
few  crimes  could  ever  be  proved.  But  wbst  J 
intend  is,  tbat,  in  till  crimen  ivhatever^  it  is  nt* 
cessary  that  the  pmof  sboutd  be  certain  iiii 
conclusive;  and  as  the  law  justly  rejects  alt 
arg-umenls  drawn  from  conjeutures  «nd  forced 
consM^uences,  il  is  not  kii Hi cienl  I o  convict  t 
pannel,  thai  be  might  bste  been  guiliy  of  ttM 
crime  chunked  ;  but  ihtf  proot  oujjbi  to  besadi 
as  to  leave  no  room  lo  doubt  that  he  was  m : 
and  though  it  is  not  necessary,  in  a  i  irciiiD- 
stanltate  evidence,  that  every  circumiit»0€«, 
considered  apart,  should  be  conclusive;  yttl 
conceive  I  may  lay  itdown  as  aecrtain  priM» 
pie,  that  where  tbe  whole  of  the  drcumstaoiOlf 
are  such,  tbst  they  nnt^Ui  nulurally  havt  hti^ 
pened  without  inferring  the  *^\uii  of  tb«  fmaakt 
such  circumsiancefl,  however  numerous,  oogte 
to  have  do  authority  against  bim. 

To  apply  tbix  rule  to  tbe  present  rate,  I  MM 
hopeful  I  shall  be  able  to  satisfy  you<,  gentle- 
men of  the  jury,  tbat  the  facts  charged  agaioil 
the  panuel  are  either  not  proved^  or  they  ir% 
such,  tbat  all  of  them  might  have  usturallj 
happened  ;  and  at  tbe  same  time  the  paniiet  be 
eotirely  innocent  of  tbe  crime  ai  which  heia 
accused. 

But  before  I  proceed  to  consider  pvrttculirljr 
tbe  several  articles  of  the  proof  brought  agtrail 
Ibe  nanntl,  it  will  be  Decef»$iary  to  put  yaa  \m 
ininrl  of  somethings  v^hich  hapjiened  preriooS 
to  tbe  murder,  a«  these  ma\  tend  lo  exptain 
many  things  which  occur  in  the  proof,  iifd 
wtiich  shall  be  afterwards  pariicukrly  taken 
notice  of. 

You  have  already  beard,  from  ibe  gentle* 
man  who  spoke  fir^t  on  ihe  ssme  siiU-  with  me* 
that,  m  the  m<»nlli  of  frVUrunry  1749»  ihed^* 
eeut^etl  (J<diii  C^ditiplicll  yf  (jleuure  Wd»  appoint^ 
ed  tactor  by  the  barons  of  exeheq  cr,  iipcm  ths 
forfeited  estates  of  Lochiel,  CsHart,  and  Ard' 
shiel ;  and,  as  the  pannel,  who  was  then  teua 
(if  part  of  the  esiate  of  Ard»biLd,  bail  alwa]^ 
lived  in  great  friend^^hip  with  Glenure,  iind  hul 
as  fair  a  character  as  any  genilemau  in  ibm 
part  of  the  country,  I  lie  management  uf  the 
whole  estate  of  ArJt«litel  was  cNiinmittetl  lu  Mm 
by  Glenure,  and .  bis  bill  was  laken  for  ihift 
yearly  rent  at  which  the  estate  bad  been  ratetl 
after  survey  by  tbe  barons  of  exeheqaer» 
leaving  it  to  tbe  pannel  to  apply  tbe  surplus  t# 
the  use  of  Ardshiel*s  cbddren.  This  is  proved 
by  Nevernl  letters  and  receipts  produced,  and  ill 
particular  from  G tenure's  leiier  to  tbe  panndf 
dated  the  mb  December  1749,  iu  which  he 
wHles  as  followt^:  '*  This  moment  I  bad  yourli 
by  your  servaui,  wiib  tOL  18*,  5d.  sterling^., 
and  the  warraut  L  formerly  gave  yrni,  tl^ 
ceive  inclosed  your  note.  Your  payoients  ire 
very  good,  for'  which  I  em  obliged  to  yoo.  I 
intend,  God  friiling,  to  be  at  fidinbargb  oa,  m 


lanM 
ay*V 


11 

I 


BI7J 


Jnr  Murder. 


i4iy  or  two  belure,  the  25th  current ;  thai  is, 
I  iuteiid  to  set  om  from  this  place  this  ilay,  or 
li*aioiTow  eiiflit  days ;  and  will  go  by  tilas- 
mr,  and  make  no  Hto|i  by  the  way.  Remember 
Mv  Ardsbiel'a  dischariees,  and  all  yonr  other 
laaliBg.  I  heartily  wish  you  a  i^rood  journey .'* 
"iMMtbe  month  of  April  1751,  Glenureap- 
1  to  the  panoel  to  gi? e  up  the  farm  of  Glen- 
r,  vbieli  he  then  possessed,  to  Mr.  Carop- 
sf  Ballieveolso,  Olenure's  particular 
who,  it  appears,  had  offered  an  addi- 
reiit ;  and  though  the  pannel  had  not 
kmm  lefally  warned,  and  so  was  not  oMiged 
Is  icnwve  tor  that  year,  yet  he  reailily  agraed 
viA  Gteaure*s  propojial,  removed  from  the  pos- 
MROQ,  and  took  from  Mr.  Campbell  of  Airds 
ike  fcm  of  Anebaru,  where  his  family  now  re- 
■dca;  hot  h«  still  continued  to  uplift  the  rents 
m  fomerly  from  the  tenants  of  Ardshiel,  and 
tibewiK  to  possess  a  small  farm  called  Letter- 
more,  wb'ioi  he  had  subset  at  about  6/.  sterling 
pcramum. 

In  the  month  of  April  last,  Glenure  exe- 
cflled  a  warning,  and  obtaioetl  a  decreet  of  re- 
moving i^iost  DO  l«*ss  than  five  or  six  tenauts 
sf  the  estate  of  Ar4lsliiel,  and  also  against  as 
■any  tenants  of  the  neighbouring  estates  of 
Larhiel  and  Callart,  decern inir  them  to  remove 
frsm  their  respective  possessions  as  at  the  term 
sf  Wbitaooday  last ;  and,  among  the  rest,  the 
funera  two  aub- ten  ants  in  the  farm  of  Letter- 
Bore  were  also  decerned  to  remove 

This  was  comp:ained  of  as  a  very  irreat 
Wriahip  in  that  part  of  the  country,  more 
dferislly  as  the  tenants  in   possession   paid 
tknrmiU  regularly,  and  were  willing  to  take 
Ibcaaiks  to  the  government ;  and  although  the 
fiHcl*!  private  interest  in  the  matter  was  not 
pcai,  jfet,  as  be  foresaw  that  a  procedure  so 
me  might  be  attended   with  disagreeable 
Mftanices,  he  went  and  ot^n  expostulated 
viikQicvure  upon  the  subject;  but  ne  having 
ymM4in  his  resolution,  the  tenants  upon  all 
Ac  ibif  fsifttea  transmitted  memorials  of  their 
a*  Is  he  laid  before  the  barons  of  Exchequer ; 
■    Mi,  ai  the  pannel  waa  then  occasionally  at 
iMofgh,  about  some  private  affairs  of  his 
•*B,  be  presented  the  memorials  to  one  of  the 
kvms  who  disapproved  greatly  of  Glennre's 
ttainet,  but  could  do  nothing  towards  piitlinir 
•«sf  to  the  removinifS,  as  a  quorum  of  the 
^sas  could  not  be  held  till  the  next  Exchequer 
ta« ;  though  at  the  same  time,  he  nndertf»ok 
kicpie^nt  the  caae  lo  the  whole  barons,  add- 
^r,  that  he  made  no  doubt  but  they  would 
five  an  order  to  the  factor  to  continue  the  te- 
■Ms  in  possession  ;    which  in  part  apfienrs 
htm  a  letter  wmte  by  the  pannel  to  Charles 
Aewart,  writer,  dated  2rth  April  1758,  and  re- 
ferred to  in  the  inventory  subjoined  to  the  libel, 
h  the  foltowing  words:  **  Yesterniglit  I  ar 
lived  liere,  after  a  very  tronhlesome  jaunt ;  and 
•itfw  bnrona  coald  not  be  got  together,  put  it 
OM  of  my  power  to  procure  an  nnler  for  uur 
Iheior;  but  baron  Reunedy,  who  I  found  very 
Imdv  mid  aeemed  lo  sympathise  much  with 
Ihi  iMMli'  CMC,  five  It  M  bii  prirale  oploiim, 


A.  D.  1752.  [218 

that  they  should  sit  their  possessions  for  this 
year,  and  that  all  justice  would  be  done  them ; 
and  thouifht  they  should  take  a  protest  against 
the  factor's  proceeding  in  a  body,  1  mean  the 
Mamore  and  Appin  tenants.  The  same  advice 
1  had  from  all  I  advised  with,  who  were  not  a 
few,  and  all  were  of  the  same  mind,  that  the 
tenants  had  a  good  chance,  once  their  affair 
came  before  the  barons." 

Upon  this  the  pannel  advised  with  counsel, 
how  the  tenants  might  be  kept  in  possession 
till  the  Exchequer  term,  and  by  their  advice 
applied  to  the  court  of  session  for  a  suspension 
of  the  removing;  and,  a  bill  of  suspension  hav- 
ing been  accordingly  presented,  a  sist  waa  ob- 
tained, and  the  bill  vdained  to  be  answered; 
which  sist  was  intinnned  to  Glenure,  upon  the 
pannel's  return  to  the  rx>untry  :  but,  answers 
having  been  thereafter  made  to  the  bill  by 
Glenure,  who  had  gone  to  Edinburgh  for  that 
purpose,  as  the  pannel  had,  through  ignorance 
of  the  forms,  carried  off  with  him  the  principal 
bill  with  the  sist  upon  it,  the  answers  were  ad- 
vised without  the  bill,  and  the  bill  refused  by 
an  interlocutor  the  5th  of  Mav  last. 

Upon  Saturday  the  tfth  of  May,  Glenure  re- 
turned to  hie  own  house  in  the  country ;  and 
so  soon  as  it  came  to  be  publicly  known,  that 
the  bill  of  suspension  was  refused,  and  that  upon 
Friday  the  15th  of  May,  being  the  term-day, 
Glenure  was  to  execute  the  warrant  of  ejection 
against  the  tenants  of  Ardshiel,  it  was  resolved, 
in  consequence  of  the  advice  the  ponnel  had 
got  from  Edinburgh,  that  tM^  tenants  should 
take  a  protest  against  Glenure,  in  case  he 
ahould  attempt  to  put  hi*  warrant  of  ejection 
in  execution  ;  and  that  they  should  cominue  in 
possession  notwithxUuiling  thereof,  till  such 
time  an  their  case  should  be  fully  heard  before 
the  barons,  and  that  their  directions  should  be 
known. 

ActMn-dingly,  in  prosecution  of  this  plan, 
njHm  Tuesday  the  19ih  of  May,  the  pannel 
wrote  a  letter  to  Alexander  Stewart,  writer  in 
Glenettie,  desiring  him  to  come  and  act  as 
notary  to  the  protest  intended  1  to  be  taken 
against  Glenure  ;  and  at  the  same  time  he  pre- 
vailed upon  two  gentlemen  of  character  in  the 
neighbourhood,  viz.  John  Mtewart  younger  of 
Ballachelish,  and  James  Stewart  younger  of 
Fasnacloich,  to  undertake  to  attend  as  wit- 
nesses, and  a>&sist  at  taking  ihe  protest ;  but  the 
said  Alexander  8cewRrt,  the  notary,  having 
happened  to  be  out  of  the  way,  when  the  pan- 
nel's servant  went  to  his  house,  and  this  hav- 
ing lieen  notified  to  the  pannel  u|>on  the  morn- 
iog  of  Thursday  the  14tb  of  May  last,  (the  day 
on  which  Glenure  was  murdered)  he  dispatclira 
a  servant  of  his  own  very  early,  with  a  letter  to 
Charles  Stewart,  writer  at  Aochintonr,  inform- 
ing him  of  the  dtRaptiointinent  he  had  met  with 
by  the  alisence  of  the  notary  to  whom  he  had 
flrvt  wrote,  and  desiring  him  (the  said  Charles) 
to  come  to  his  house  with  all  possible  expedi- 
tk>n  thttt  night,  in  order  to  act  as  notary  to  the 
protest  intended  to  be  taken  againit  Glennra 
next  day. 


919] 


25  GEORGE  U. 


Trial  of  James  Stttioartf 


[SSO 


In  this  sitiiatioa  mutters  stooil  upon  Tburs- 
i\Ay  the  14th  of  May  last,  beinjr  the  day  upon 
\«hich  this  most  execrable  murder  was  com- 
mitted ;  and  therefore,  the  facts  previous  to  the 
murder  being  adjusted,  1  shall  now  proceed  to. 
consider  the  evidence  which  has  been  brought 
f(ir  proving  lioth  branches  of  tlie  libel ;  1st, 
That  the  munier  was  committed  by  the  hands 
of  Allan  Brock ;  and,  2dly,  That  it  was  com- 
mitted in  conseouence  of  a  previous  conspiracy 
betwixt  him  and  the  iiannel. 

And  here  it  is  highly  necessary  that  you 
should  be  greatly  on  your  guard,  to  distinguish 
accurately  between  the  facts  charged  against 
the  pannul,  and  those  charged  against  Allan 
Breck;  which  is  the  more  necessary,  as  in 
the  libel  the  facts  are  so  intermixed,  that  it 
is  no  easy  matter  to  distinguish  the  one  from 
the  other.  And  though  I  roust  admit,  that  the 
learned  gentleman  on  the  other  side  has  been 
very  candid  in  summing  up  the  evidence;  yet 
I  could  have  wished  he  had  been  more  careful 
10  distiuguish  the  prpof,  so  far  as  it  relates  to 
the  different  pannels  charged  in  the  libel. 

With  rei^ard  to  the  first  question,  concerning 
the  ijruilt  of  Allan  Breck,  1  shall  not  take  up 
much  of  your  time;  for,  though  it  is  incum- 
bent upon  the  prosecutor  to  prove  that  the 
mur4ler  was  committed  by  the  bands  of  Allan 
Breck,  yet  it  is  not  absolutely  necessary  for 
the  pauiiel  to  maintain  the  innocence  of  that 
person  ;  as  it  is  of  no  importance  for  the  prose- 
cutor to  prove  that  the  murder  was  comniitte<l 
by  Allan  Breck,  unless  he  shall  also  prove  that 
the  pannel  was  accessary  to  it. 

And  therefore  I  shall  very  shortly  state  the 
objections  against  this  part  of^  the  evidence, 
leaving  it  to  your  own  consciences  to  determine 
you,  how  far  the  evidence  brought  by  the  pro- 
secutor is  sufficient. 

And  the  first  circumsttance  charged  in  the 
libel  is,  '«  That,  upon  Monday  the  11th  of 
May,  Allan  Breck  having  been  informed  that 
Glenure  had  gone  that  day  to  Lochaber,  and 
was  to  return  by  the  ferry  oV  Ballachelish  uj>on 
the  Thursday  after,  he  had  laid  aside  his 
French  clothes,  which  were  remarkable,  and 
had  disguised  himself  in  a  black  coat  and  trow- 
sers  belongin}if  to  the  pannel,  with  an  intention 
to  commit  the  murder." 

But,  in  the  6rst  place,  it  is  not  proved,  that, 
upon  Monday  the  11th  of  May,  Allan  Breck 
had  bt'cn  particularly  informed  of  Gienure's 
motions;  fur  though  it  does  indeed  appear, 
from  the  depositions  of  some  of  the  witnesses 
referred  to  by  the  prosecutor,  that  Allan  Breck  j 
had  heard  of  Glenure's  having  set  out  that  day 
for  Lochaber,  yet  it  does  not  appear  that  he 
had  got  any  information  what  road  he  was  to 
take,  or  at  what  time  he  was  to  return  :  none 
of  thtt  witnesses  have  said  so,  and,  in  cases  of 
this  nature,  no  fact  ought  to  be  presumed 
without  proper  evidence. 

3dly,  Though  it  is  prove<l  that  Allan  Breck 
did  change  his  clothes  upon  the  day  libelled, 
yet  it  is  not  natural  from  thence  to  presume, 
that  this  was  done  with  tL^  intentiou  to  com- 


mit the  murder.  It  clearly  appears,  froin 
the  depositions  of  the  witnesses  relative  to 
this  article,  *^  That,  upon  former  occasions, 
Allan  Breck  had  been  in  use  of  laying  aside 
his  French  clothes,  and  putting  on  tlie  drev 
of  the  country."  And,  in  particular,  it  is 
proved  by  the  depositions  of  the  three  Maccolls, 
(who  caimot  be  said  to  have  been  partial  for 
the  iMuinel)  "  That  he  had  on  these  very  clethea 
belonging  to  the  pannel,  when  he  went  to  Ran- 
noch  in  the  month  of  April  last  :'*  and  Ume- 
fore,  as  it  was  no  new  thing,  but  a  commao 
practice  of  Allan  Breck's  to  lay  aside  his  Frendi 
clothes,  and  put  on  the  dress  of  the  country*  it 
is  wrong  in  the  prosecutor  to  lay  hold  of  thii 
circumstance,  which  is  m  itself  mnocent,  and 
to  wrest  it  into  an  argument  against  the  pannd ; 
especially  as  it  ajipears  from  the  depositious  of 
the  same  three  witnesses,  "  That  Allan  Breck 
wrought  with  them  in  the  pota toe-field  tht 
greatest  part  of  that  afternoon  upon  whioh  b« 
came  to  the  pannel's  house,"  which  was  a  veir 
natural  reason  for  laying  aside  his  Freon 
clothes,  as  not  being  proper  for  that  purpose. 

The  next  circumstance  charged  against  Allan 
Breck  is,  '*  That,  for  louic  days  before  tbo 
munier  happened,  he  had  hovered  near  to  the 
ferry  of  Ballachelish,  at  which  it  was  known 
Glenure  was  to  pass ;  that,  during  that  period, 
he  had  been  twice  at  the  house  of  Ballacoelish, 
twice  at  the  house  of  Glenco^  and  once  at  tht 
house  of  Callart." 

But,  in  the  first  place,  it  is  not  proved,  that 
Allan  Breck  knew  that  Glenure  was  to  pan  at 
the  ferry  at  Ballachelish  ;  and  therefore  it  is 
ridiculous  to  talk  of  hovering  or  lying  io  wail, 
when  it  was  not  known  at  what  ferry  Glenun 
was  to  pass. 

3dly,  If  Allan  Breck  had  known  tliat  tb« 
defunct  was  to  pass  at  Ballachelish,  and  bad 
intended  to  lie  in  wait,  he  would  have  kept 
close  at  Ballachelish,  and  would  not  have  flono 
either  to  Callart  or  Glenco,  which  are  eadi  of 
them  at  three  miles  disUncc,  the  first  on  the 
north  side,  and  the  other  on  tlie  south  aide  of 
the  ferry.  It  is  much  more  natural  to  pre- 
sume, that  Allan  Breck  went  to  these  plaon 
with  an  intention  to  visit  his  friends  who  lived 
there.  And  this  is  another  instance  where  tht 
prosecutor  wrests  a  circumstance,  which  is  in 
Itself  innocent,  into  an  argument  against  tht 
pannel. 

The  tliiid  and  strongest  circumstance  against 
Allan  Breck  is,  *'  That  he  absconded  that  very 
night  upon  which  the  munier  happened,  and 
left  the  country  soon  thereafter." 

But  this  circumstance  has  hern  in  like  man- 
ner obviated  by  the  proof  brought  in  Itehalf 
of  the  pannel.  It  is  clearly  proved,  tliat, 
in  the  year  1745,  Breck  wa**  a  soldier  in  the 
regiment  commanded  by  colonel  Lee ;  that| 
immediately  after  the  battle  of  Preston,  he  de- 
scrteil  to  the  rebels;  that  he  remained  with 
thi'm  till  they  were  happily,  defeated  at  the 
battle  of  Culloden  ;  and  that,  since  that  time, 
he  had  been  in  the  French  service  :  and  there- 
fore, as  Breck  must  baft  foreieen,  tbati  upon 


»1] 


Jbr  Murder. 


Um  Bianler  of  Gknare,  a  rery  strict  search 
wouM  be  made,  it  was  very  natural  for  liim, 
thon^h  innocent,  to  abscond  and  leave  the 
coootrj,  and  accordingly  it  appears  from  the 
poaf,  that  be  ^ve  this  account  of  the  mutter 
ta  etcrjf  peraon  whom  be  had  occasion  to  con- 
vfita  «ilh  upon  that  Nubject ;  and  therefore,  as 
this  dreamstance,  as  well  as  all  the  rest,  may 
■alafiby  bear  a  construction  favourable  for  the 
naaat^  it  i»  wrong'  in  the  prosecutor  to  put  a 


Aniction  upon  "an  action  which  will 
ivalj  bear  a  good  one. 

The  only  other  material  circumstance  from 

wbicb  the  ipuilt  of  Allan  Breck  is  inferred,  is, 

that,  before  the  murder,  he  had,  ui>on  different 

aecaaooa,  nsed  threatening  or  resentful  expres- 

■aoB  acainal  the  defunct :    but,  as  it  seemed  to 

be  adaaitted  by  the  learned  gentleman  on  the 

e,  that  expressions  alone  were  not  suf- 

L  to  infer  the  crime,  I  slmll  have  occasion 

10  emndcr  more  particularly  the  effect  of  such 

aiyisawoiM  under  the  second  branch  of  my  ar- 

gameat,  arfaich  properly  relates  to  this  pannel. 

And  wfaacerer  mav  be  your  opinion  with  re- 

£rd  lo  Allan  Breck,  I  must  humbly  contend, 
it  Ibcre  ia  no  sort  of  evidence  that  the  pannel, 
BOW  at  the  bar,  was  in  any  previous  conspiracy 
to  conmit  tliia  heinous  murder ;  and,  as  far  as 
the  nalore  of  the  thing  could  ailmitof  it,  the 

Gwel  haa  profed  the  improbability  of  his 
Dg  any  way  accessary  to  it. 
In  the  first  place,  the  character  of  the  pannel 
focs  far  to  protect  him  from  any  suspicion  of 
Hiikind.  Though  that  part  of  the  evidence 
VIS  Del  taken  down  in  writing,  yet  he  has 
fntcd  by  witnesses,  beyond  all  exception,  and 
CM  appeal  to  vour  own  consciences  for  the 
Mb  or  it,  that  iiis  character  in  private  life  was 
Micr  stained  by  auy  dishonourable  action.  Is 
"*( then  to  believe,  that  one  of  such  a 
r  can  at  once  plunge  himself  into  the 
I  guilt,  hy  committing  the  crime  of  as- 
'^    which  is  of  all  others  the  post 


*WiHrto  human  nature? 
iir.The  i 


Sir,  The  pannePa  guilt  is  still  the  more  im 

pMfe,  as  he  conld  not  possiblv  propose  any 

y^by  it.    He  was  a  man  or  too  good  un- 

VMHluig,  not  to  see  that  Glenure'd  place  as 

■(i»  voold  soon  be  supplied ;  that  the  strict- 

M  Kareh  would  be  made  for  the  authors  of 

V  eaoroioiia  crime ;  and  that  his  family,  as 

■>Y  nearly  connected  with  the  forfeited  per- 

>■■  woald  be  first  suspected :   is  it  possible, 

^  in  aoch  circumstances,  it  could  enter  into 

^  imagination  of  the  pannel,  to  commit  a 

oine  of  so  black  a  natnre,  when  he  could  not 

•sly  nap  no  benefit  by  it,  but  when  it  liehoved 

Mcosarily  to  involve  his  own  fiimily  in  inevita- 

he  distress  and  ruin  ? 

But,  3fllv,  There  is  another   circumstance 

reoflkers  it  incredible   that   the   pannel 

I  have  lieen  in  any  previous  conspiracy  to 

oanmit  this  murder ;  for  it  is  clearly  proved, 

Ibatatthat  ^ery  time  he  was  pursuing  quite 

esatrary  measores;  that  he  had  provided  him- 

Hif,  and  was  cndeavooriug  to  provide  the  other 

•ndit  is  further 


A.  D.  1752.  [222 

proved,  not  only  by  verbal,  but  also  by  written 
evidence,  which  cannot  lie,  that  his  intention 
was  to  proceed  in  a  legal  way,  by  taking  a 
protest  agfaiust  Glcnurc  upon  the  term-day,  in 
case  he  slioiihl  attempt  to  put  his  removing  in 
execution.  This  is  dearly  proved  by  the  pan- 
nel's  letter  to  Charles  Stewart,  the  notary, 
dated  the  14th  of  May,  being  that  very  day  on 
which  Glenure  uas  murdered:  which  letter 
ought  to  have  the  greater  weight,  as  it  is  not 
produced  by  the  panncl/but  by  the  prosecutors, 
the  same  havinj;^  heen  recovered  by  them  out 
of  Charles  Stewait's  hands. 

In  this  letter  (tvhich  greatly  deserves  your 
attention)  the  pannel  u rites  to  Charles ^)te wart. 
That,  by  the  negligence  of  his  servant,  be  had 
been  disappointed  of  the  notary  he  first  intend- 
ed, *'  which  he  reckons  a  very  great  misfor- 
tune." And  then  the  letter  concludes  in  these 
words:  **  The  uext  best  thing  I  can  think  of 
is,  that  you  be  here  this  night,  without  fail,  if 
you  should  hire  a  horse ;  as  every  thing  roust 
go  wrong,  without  a  person  can  act,  and  that  I 
can  trust.  This  is  such  a  tie  upon  all  the 
members  of  our  family,  that  I'll  press  you  no 
further,  but  do  depend  on  seeing  you  once  this 
night." 

it  is  indeed  true,  that  this  letter  does  not 
particularly  mention  that  the  pannel's  intention 
was  to  take  a  protest  afifainst  Glenure;  but 
then,  this  is  fully  explaineil  by  the  depositions 
of  the  witnesses,  particularly  hy  the  oath  of 
Charles  Stewart,  who  fle|)Ofie8,  '*'  That  he  re* 
ceived  a  second  letter  from  the  pannel,  of  date 
the  14th  of  May,  dosiring  him  to  attend  the 
next  day  at  the  ejection  ;  hut  he  declined  the 
same,  oecause  he  did  not  care  to  disoblige 
Glenure." 

This  is  further  confirmed  by  the  oath  of 
John  Beg  Maccoll,  the  person  who  carried  the 
letter,  who  deposes,  **  That,  upon  Thursday 
the  14th  of  May  last,  the  pannel  gave  a  letter 
to  the  deponent,  to  be  delivered  to  Charles 
Stewart,  notary  public  at  Mary  burgh  ;  and 
tuld  the  deponent,  that  the  letter  was  to  make 
or  cause  Charles  Stewart  come  to  the  country 
of  Appin  to  protest  against  Glenure,  in  case 
he  had  not  a  sufficient  warrant  to  remove  the 
tenants  of  AnIshicI :  that  the  pannel  destretl 
the  deponent  to  make  all  possible  dispatch, 
and  desire  John  Breck  Maccombie  at  Kin- 
talline,  and  J  jhn  More  Maccoll,  servant  to  the 
pannel,  who  was  then  at  Kintalline,  to  ferry 
the  deponent,  from  Kintalline  to  Onicli,  being 
much  shorter  than  the  ferry  of  Ballachelisb  : 
that  he  sat  oot  from  Aucnam  about  7  or  8 
o'clock  in  the  morning,  and  made  all  the  dis- 
patch he  conld  to  Fort  William,  where  he  ar- 
rived about  twelve  o'clock.  Deposes,  that, 
when  he  came  to  Fort  William,  he  delivercil 
the  letter  he  got  from  the  pannel  to  William 
Stewart,  merchant  in  Maryburgh,  who  told 
him  that  Charles  Stewart  the  notary,  was  not 
at  home,  he  having  gone  to  the  braes  of 
Lochabrr  in  the  morning  ;  and  told  the  depo- 
nent, that  he,  the  said  William,  had  wrote  to 
the  pannel  in  the  morning,  and  that  there  was 


82S] 


25  GEORGE  II. 


Trial  ofjMmet  SieoMrf^ 


[S24 


R  notary  along  with  Glenure,  who  would  aer? e 
the  pannel,  as  well  as  Glenure.*' 

And  it  is  further  proved,  that  the  panncl  had 
gone  so  far  as  to  provide  proper  witnesses  to 
be  present  at  taking  that  protest,  as  appears 
■from  tlie  deposition  of  John  Stewart  younger 
of  fiallachelish,  who  deposes,  *<  That,  in  the 
time  of  the  spring  circuit  in  this  place,  in 
May  last,  he  was  summoned  to  be  of  the  jury  ; 
but,  at  the  earnest  request  of  the  pannel,  that 
lie,  the  deponent,  should  be  present  with  a  no- 
tary at  the  removing  of  the  tenants  Imro  the 
estate  of  Ardbhiel,  he  was  going  on  that  er- 
rand, to  the  pannel's  house ;  but  returned  to 
Appin,  upon  hearing  of  the  murder  of  Gleunre 
4;ommitled  that  day. 

And  this  observation,  that  the  pannel  had  at 
this  time  no  thoughts  of  the  execrable  munter 
of  uhich  he  is  now  accused,  is  further  confirm- 
ed from  William  Stewart's  letter  tp  the  pannel, 
dated  the  same  14lh  of  May,  recovered  by  the 
prosecutors  from  out  of  the  pannersreimsito- 
ries,  which  concludes  in  the  following  wonls : 
<'  I  find  Glenure  has  a  mind  to  eject  the  te- 
nants ;  hut  they  ought  to  be  deaf  to  it,  and,  at 
all  risks,  keep  possession,  as  they  are  in  good 
hands,  as  it  must  end  in  the  exchequer;  so  that 
I  beg  they  keep  possession  :  as  there  will  be 
no  troops,  they  ought  to  repel  force  by  force, 
anil  take  their  hazard  of  the  consequences ;  as 
it  can  be  no  more  than  violent  profits,  which  is 
often  modified  in  inferior  courts,  besides  the 
•«s(chrquer,  who  will  insist  for  no  such :  their 
chief  design  beiuff  to  have  a  sett  of  peaceable 
tenantry,  and  a  well-paid  rent :  ao that  the  peo- 
ple might  to  be  assured  they  will  he  supported 
as  far  as  law  will,  which,  do  doubt,  must  de- 
termine in  their  favours." 

From  the  depositions  of  these  witnesses, 
joined  with  the  letters  which  have  been  read 
in  your  presence,  it  is  incontestably  proved, 
that  the  plan  concerted  between  the  pannel 
and  his  friends  went  no  further,  than  to  take  a 
protest  against  Glenure,  in  case  he  should  at- 
tempt to  execute  bis  warrant  of  ejection  against 
the  tenants ;  or,  at  furthest,  that  the  tenants 
should  continue  iu  possession  iiotwithstandiiicr 
the  warrant,  ami  run  the  risk  of  violent  profits. 
And  it  is  of  great  importance  in  the  present 
•rgnment,  that  these  two  letters  are  dated  upon 
the  morning  of  that  very  day  op  which  the 
nurder  happened  ;  a  circomMance  utterly  in- 
consistent with  the  libel,  uhich  has  no  other 
footing  to  stand  upon  than  this,  That  the  pan- 
Del  dad  Allan  Brack  hud  concerted  the  murder 
previous  to  the  time  when  Allan  Breck  changed 
his  clothes,  which,  os  has  been  already  observ- 
ed,  was  four  days  before  the  murder. 

Amidst  such  glarin{;impn>habiliiies,  it  wouUI 
require  the  stroniufest  evidence  to  convict  the 
pannel.  And  this  leads  uic  to  consider  the 
several  facts,  according  to  the  order  in  which 
they  are  laid  in  the  indictment. 

And  the  first  thing  char|i;ed  in  the  IiIm-I  is, 
ibat  the  pannel  had  conceived  an  uiijnsr  re 
■CDtmeot  against  the  defunct,  for  three  diflfer- 
ist,  Bmmmo  he  had  accepted  the 


factory  of  the  estate  of  Ardifaiel ;  Sndljrt  Be- 
cause he  had  removed  htm  froiD  the  hurm  of 
Glenduror;  and  3dly,  Because  that,  in  the 
month  of  April  1752,  he  had  takeo  measures 
fur  removing  oertain  other  persons,  who  were 
tenants  and  possessors  of  that  estate. 

The  first  is  clearly  disproved  by  letters  and 
discharges  under  the  hand  of  the  deceased, 
which  have  been  read  in  your  presence ;  and 
from  which  it  appear/;,  that,  for  several  years 
after  the  date  of  the  factory,  the  deceased  and 
the  pannel  were  in  perfect  good  terms ;  and 
that  Glenure  had  such  confidence  in  Ihe.paa- 
uel,  that  he  had  employed  him  to  uplift  the 
rents  from  tlie  other  tenants. 

The  second  ground  for  resentment  is  dis- 
proved by  the  oath  of  Alexander  Stewart  of  In- 
nernahvle,  who  deposes,  "  That  the  tioM 
when  I  lie  pannel  removed  from  Gleaduror,  he 
told  the  deponent,  that  he  had  had  a  meeting 
with  Ballieveolan,  and  that  there  was  a  com- 
promise betwixt  them :  that  he  did  not  hear  of 
any  warning,  but  that  be  removed  voluntarily." 

And  therefore  the  only  ground  of  resent- 
ment which  remains,  is,  that  the  defunct  bad 
taken  measures  for  removing  some  of  the  other 
tenants  of  the  estate,  as  at  the  term  of  Whit- 
sunday last :  and  though  it  may  be  true,  that 
the  pannel  has,  upon  different  occasions,  con- 
plaine<l,  in  strong  terms,  of  the  hardship  of  re- 
moving these  tenants ;  yet  it  is  impossible  Is 
believe,  that  so  trifling  a  cause  of  resentment 
could  have  so  strong  an  effect,  as  lo  push  on 
the  pannel  to  tlie  barbarous  murder  of  which 
he  is  now  accused ;  more  especially,  when  it 
is  considered,  that  he  is  noways  related  to  any 
of  these  tenants,  and  that  none  of  them  are  so 
much  as  of  the  same  name. 

The  prosecutor  has  been  pleased  to  lay  great 
stress  upon  certaiu  foolish  expressions  alleged 
to  have  been  used  by  the  panuel  upon  tlie  sub- 
ject of  these  removmgs. 

It  must  occur  to  every  mau,  how  extremcij 
dangerous  a  proof  of  this  kind  is :  there  are 
very  ^e^  witnesses  who  can  repeat  exactly  the 
particulars  of  any  conversation,  and  still  fewer 
who  e^n  recollect  these  particulars  at  any  dis* 
tancc  of  time.  In  such  cases,  much  may  de- 
pend upon  the  tone  of  vdice,  or  (gesture  of  the 
person  who  speaks  ;  and  the  variation  of  a  cir- 
cumstance may  alter  the  meaning  of  the  Hhole 
expression. 

Besides,  there  is  an  obvious  disadvantage 
which  this  pauoel  labours  under,  and  of  whi», 
in  the  present  case,  he  hai  no  small  reason  to 
complain ;  which  is,  that  the  particular  ex- 
pressions charged  against  him  are  nut  taken 
into  the  libel,  neither  are  the  circumstances  of 
time  and  place  mentitined ;  by  which  the  iianf 
nel  is  deprived  of  the  op|K)rtunity  he  OMflrlit  to 
have  had  ot  bringin*^  a  contrary  proof,  if 
the  paiticular  expressions  were  kn<»wu  tolttc 
pnisecutur,  it  was  hut  just  that  iliev  sbeold 
have  been  taken  into  the  libel ;  and,  uu  tha 
other  hand,  if  they  were  not  knawu,  no  aoch 
thing  ouyht  to  have  been  at  all  mentioned. 

And  indeed,  with  regard  to  some  of  tha  as- 


Jw  Murdit. 

•t  b  lm|ioflftUite  io  believe,  itiiit  Die 
I9»d  ibe  words  d<»pr,<ied  to  bv  ibe  wit- 
Thas,  in  particular,  tbe  slnmi^est  ex- 
I  is  Uiil  fSep«i«pil  \f\  hy  Jdtiti  >hcc4»ll 
VI ho  dtfpiMefi,  **  That,  ftbtnit  u%o 
I  agov  be  beard  the  fannel  say,  that  he 
I  ffpeod  ft  ib»t  Mtt  Ctti'tiure,  though  he 
v«m  «•  bb  ku€e«  to  lb«>  «%tiit)o\y  to  tire  U.'* 
B«l  M  ibb  etiifesjiion  ia  nnly  deposed  to  by 
•,  who  4e«>m«  1(1  liaTe  becD  abiin< 


It  fbrvrnnl  in  ^^        '<      ti^ftinst  the  piinnel; 
« (t  0  yctf^ly  ini  i4t,  lit  tbe  time  de- 

^■{#4  111  '     ^  i  ,  in(;(ian[iel  woubl  hare 

iiHjthi  -■$  it  is  deady  pro  veil, 

bjf  ibe  drpx^ujuu^  «H  ihe  oiher  M'iint*;i«(fs,  tbut 
l&t  4«i:ea9t^  ftnd  the  pdniKl  were  then  in  sitrict 
pil»br|i  lOfffther  ;  nnil  thitt  at  that  thne  the 
iBit4  bia  iuch  conHdiiice  in  the  pamiel, 
be  was  Ibeti  eDiptoying  hiin  as  sub'tselor 


ba  rery  Icdtous*,  aiKl  is  iinueoes- 
tv  tnalce  jHirticular  ohscrvaiions 
expre&9iun»  dt'posed  to  by  the 
e&;    at    (he  same  time  it   is 
k  tor  roe  to  recollect  ihein,  as  1 
ipfMirtODity  to  know  them,  till  they 
p*ed   to  by  tbe  witnesses  Ihrmsehes* 
It  10  aiiiMrtifint  f«ir  me,  in  gftieral,  to  nbserve. 


-  •  It  i»  r«^fe«enieil  in  Ibe  '  Sapplemrnr/  thnt 

mmmm  lArtol  thi^  nrfirunient  (p.  'iCiO,  hne  15 

if  iIm  report  of  the  trial  rctVnetl  to  in  the 

*S«fifi|rciieiil)*  Mr.  Brown  ui*!*  internipterl  by 

INaMBia  CattipMt  of  8(juih«Hu(t«  imi*  f\\'  the 

pTf^  wbo  iaid  aloud  to  liim,  '*  Pr,iy  Sir,  cut 

iboft;  we   have  enoiif^h  of  vi,  and  en?  ipiite 

limli    tbr  irtnt  huvirig   l^ited   loti^:^*   iipDU 

aiidi  ibr  author  of  the  Supplement  remarks  : 

*  Ita  mifirtefMlenteit  rxclHuiatory  iiilrrruptidn 

iMMOetMl     Mr.    Brown,   shocked    \\\e    an- 

ftitcc,amJ  itbo^ed  plainly  the  $icttkd  minds 

<C  •••afrtlki.     It  is  very  triu%  that  the  trial 

M  li««d   1410^.     But  who  were  tht^y   that 

iMkftnl  it  BO  much?  Surely  not  the  pan- 

m%  bwyera  and  witnes^ies:  lor  the  depofii- 

imiif  tba  iviiiiesfps  tor  ttte  priiseeiitom  lake 

^t09  pftK^*  whricni  those  for  the  pannel 

l|||  fl  l^l^i  and  th^  Lord  Advocate's*  speech 

H  ^  jcry  ftfainst  the  rmiinel,  tills  up   78 

Mn|  but  that  of'  l^ir.  Drown  for  him,  only 

U*.  s^lliftl  in  this  lonif  diet  of  the  court,  nine 

)nr»  al  l€»«t  of  tbe  time  suent  was  employed 

Utbe  fiioa«:utoni  for  one  botir  i>y  the  pannej. 

mm  hitli  reascm  theo  had  South^hall  to  be- 

icra  «o  bbomaoely,  and  do  a  thing,  that,  1 

mm  taidi  nrref  happened  before  in  a  court  of 

jfKtket  •  f  >nc  or  two  mora  oj  the  jury  spoKe  on 

ibii  c3CU«(0rdiiiary  oeeanjon  ;  but  wnether  se* 

«ftiiiii|^or  mfifmng  South-halt's  motion^  was 

aai  Ikefi  4iilioet)j  naanl  hy  many,     ft  seems 

U  W  afretd  iqpoo  ttow,  ihst  it  was  to  desire 

iff.  Brwiiii  to  prnc!*'*  rl ;  which  lie  did,  after 

ilHnaiiiy  bi  for  having  been  thus 

litttTUplutt ;  chrtk  that  behoreiMo 

a^  I  make  him  forget 

^  (  j^  that  he  would 

aiL  V  ilvtie/* 

\     , 


A.  D.  1752, 

tluit  some  of  tbeoj  may  bear  an  innocent  mean 
ing";  that  others  of  them  appear  to  have  heeij 
uttered  when  the  pan  net  wus  in  drink  ;  and 
iliAt  none  of  them  ure  so  strong,  as  that  de 
pOKed  to  by  tlie  bouman*  which  h>is  been  %{m 
ready  answered. 

And  though  it  sbonhl  be  admitted,  that  tha 
pauiiel  had,  upon  dilTerent  occasions:,  ejcpre!sse<0 
iumself  foolishly  in  terms  which  implied  re-  I 
sexitment  against  the  defunct;  yet  this,  by  it- J 
self,  is  by  no  means  sufficient  to  piore,  that  th«,f 
pannel  was  accessary  to  the  murder  which  af- 
terwards happened. 

And  here  I  have  only  to  appeal  to  your  ownl 
hearts,  and  ask^  bow  often  you  have  heard  re*,| 
sentful  expressions  thrown  out  iu  conversation^] 
where  you  were  yourselves  conscious,  that  no-,  I 
thing  was  seriously  inteniled ;  and  though  it  1 
may  be  true,  that  such  expressions  may  Server,] 
as  a  weight  in  the  scale,  with  other  circum**] 
sunces,  to  convict  the  paaoel ;  yet  this  holdft, 
only  where  these  tHber  circumstances  caonol  i 
naturally  admit  of  an  innocent  construction,,  I 
but  can  never  apply  to  the  present  case,  wlk^rr,  , 
I  am  hopeful,  I  shall  be  able  to  shew,  that  ttia 
other  citcum:)tances  provetl  against  the  panuii  j 
have  no  shadow  of  relevancy  in  theni«  ' 

At  the  same  time,  it  is  a  circumstance  of  | 
some  weiirht  in  the  present  case,  to  take  off  the 
etfect  of  these  expressions,  that  it  is  not  pre- 
tended, thai  the  murder  was  comniiUed  by  the 
paune)^  on  the  contrary,   the  libd  >4els  forlh^ 
thut  the  murder  was  committed   hy  tbe  hands 
of  Allan  Breck:  and  however  it  may  be  true,  , 
that  expressions  importing  resentment,  proved  \ 
against  the  panue),   may  go  hi  to  presume 
guilt,  where  none  other  fs  coodesceuded  on  as  < 
the  actor  and  perpetrator  of  the  murder  ;  yet 
that  will  noways  apply  to  the  present  case, 
where  the  very  libel,  upon  vihich  the  pannel  is 
nccueiei],  sets  forth,  that  the  murder   was  not 
commilled  by  the  pannel,  but  by  another. 

The  second  fact  charged  in  tlie  libef,  it 
fnunded  oo  a  concert  supposed  to  have  been 
entered  into  betwixt  the  pannel  and  Allan 
Breck,  upon  Mtmday  the  11th  of  (^lay ;  tri 
ronsei^ueoce  of  uhich  concert,  it  is  alleged,  th« 
murder  happened.  But  as  the  prosecutor  baa 
brought  no  evidence  of  any  such  concert,  oc 
lliat  AIIru  Breck  and  the  pannel  had  any  con- 
ference whatever  upon  the  subject  that  day  ; 
sr>  it  is  proved,  as  strongly  as  the  uature  of  llie 
tiling  can  admit  of,  by  the  prosecutors  owa 
witnesses,  that  do  such  thing  could  possibly 
have  lieen  concerted  that  day.  The  sum  ot* 
the  evidence  relative  to  this  matter,  Is,  that 
Allan  Breck  came  to  the  nnnnel  upon  Monday 
the  1 1  ill  about  mid-day,  the  panuel  t»eing  theit 
sitting  in  a  5eld  of  potatoes,  Jii  compauv  wtlti 
three  of  his  servants  :  that,  alter  they  had  sit 
lor  a  quarter  of  an  botir  together,  a  meMiage 
cat»e  from  iMr.  Campbell  of  Airds,  desirinip 
the  pannel  to  come  to  him  at  Keil,  which  ti 
about  two  tDiles  distant  from  the  pannuPft 
house:  thai,  in  consequences  of  this  loesaage, 
he  immediatelv  went  tp  Keil,  leaiing  Albn 
Breck  with   his  serraiiU;    that  b«  naoainad 


S»7] 


25  GEORGE  11. 


Trial  of  James  Siewifif 


tSS8 


il^itb  Airds  all  that  afternooD,  and  did  not  r&- 
tuni  to  bis  own  house  till  late  at  night,  the  fa- 
mily being  then  at  supper,  andsereral  strangers 
alonff  wiui  them :  that  the  pannel  and  Allan 
Breck  bad  no  conversation  together  in  private 
that  night :  that  they  slept  in  separate  places, 
and  that  the  pannel  had  left  his  house  next 
morninff,  before  Allan  Breck  ffot  out  of  bed. 

As  this  is  a  very  roateriaicircumstance,  in 
respect  it  is  admitted  upon  all  hands,  that  this 
was  the  only  occasion  the  pannel  and  Allan 
Breck  had  of  conversiniB^  together,  between 
Glennre's  return  from  Edinbnrffb,  upon  Satur- 
day the  9th,  and  the  murder,  which  happened 
upon  the  Thursday  thereafter,  I  must  beg 
leave  to  resume,  particularly,  the  evidence  on 
this  head. 

John  More  Maccoll  deposes,  "  That,  upon 
Monday  the  lUh  of  May  last,  he  saw  Allan 
Breck  come  to  Aucham,  dresseil  in  his  lonff 
clothes,  and  came  directly  where  the  pannel, 
Allan  his  son,  John  Beg  Maccoll,  and  the  de- 
ponent were  covering  potatoes:  that,  when 
Allan  came  up,  they  were  resting  themselves, 
and  sitting  by  one  another :  that  Allan  Breck 
flat  with  them ;  and  all  the  conversation  the 
deponent  observed,  consisted  in  some  questions 
about  the  welfare  of  the  people  of  Glencrearan ; 
and  that  he  did  not  observe  tne  pannel  have  any 
private  conversation  with  the  said  Allan  Breck  ; 
for  that,  a  very  little'time  after  Allan  Brock's 
arrival,  the  pannel  had  a  message  to  meet  Mr. 
Campbell  of  Airds  at  Keil ;  and  that  this  hap- 
pened after  mid-day :  that  the  pannel  imme- 
diately, upon  receiving  the  above  message, 
went  away,  in  order  to  meet  Airds ;  and  that 
nobody  went  along  with  the  pannel,  Allan 
Breck  having  stayed  with  them." 

John  Beg  Maccoll  deposes,  '*  That  when 
Allan  Breck  came,  upon  the  11th  of  May  last, 
to  Aiicharn,  the  pannel  was  seeing  the  depo- 
nent, John  More  Maccoll,  and  Dougal  Mac- 
coll, working  at  potatoes ;  and  that  Allan 
Stewart,  the  pannel  s  son,  was  likewise  there : 
that,  when  Allan  Breck  came,  they  were  all 
sitting  together ;  and  that  he  seated  himself  by 
the  pannel,  and  had  some  conversation  in  Eng- 
lish, which  the  deponent  does  not  understand. 
Deposes,  that  Charles  Stewart,  son  to  the 
pannel,  and -— Stewart,  daughter  to  Fasna- 
doich,  came  to  Aucham  from  Fasnacloich  a 
little  after  the  said  Allan  Breck."  And  further 
deposes,  "  That  when  Allan  Breck  came  back, 
upon  Monday  the  11th  of  May  last,  to  the 
place  where  the  paunel,  deponent,  and  others, 
were  covering  potatoes,  as  above,  they  had  sit 
together  but  fur  about  a  quarter  of  an  hour, 
when  the  deponent  went  to  work  at  potatoes  at 
a  greater  distance;  and  before  he  went  away, 
heard  a  message  had  come  for  his  master  to 
meet  Airds  at  Keil,  and  heard  his  master 
speak  of  p:oing  there ;  but  when  he  went,  or 
who  went  along  u  iih  him,  the  deponent  does 
not  knoiv :  that  tlie  deponent  continued  work- 
ing at  the  potutoea  till  the  evenmg,  and  the 
pannel  was  not  come  home  when  be  came  from 
kia  work :  that  the  pannel  cane  home  at  bed- 


time, accompanied  with  John  More  MaciK- 
chattan,  who  lay  with  the  deponent  thai 
night." 

Dougal  Maccoll  depones,  '*  That  when  the 
deponent  came  home  from  the  wood,  upon 
Monday  the  11th  of  May  last,  the  paniid  was 
not  at  home,  and  the  deponent  was  told,  he  was 
gone  to  Keil,  to  meet  the  laird  of  Airdi ;  and 
that  the  deponent  had  gone  to  bed  before  th« 
pannel  came  home  that  night ;  and  that  early 
upon  Tuesday  morning,  when  the  deponent 
sot  up,  he  saw  the  pannel  without,  who  toM 
him,  that  he  was  going  to  Appin's  house;  and 
that,  to  the  deponent's Icnowledge,  Allan  Brecki 
or  the  pannel's  sons,  were  net  then  up :  that  he 
saw  the  pannel  go  towarda  Lettershonay  where 
Appin  lives.  Deposes,  that  Allan  Brack  left 
Aucbarn  before  the  pannel  returned  from  Lel- 
tersbnna." 

Katharine  Maccoll  deposes,  "  That  the  pan- 
nel went  in  ttTc  afternoon  of  the  day  (vie.  11th 
May)  to  Keils,  to  meet  Mr.  Campbell  of  Airda ; 
and  that  it  was  late  at  night  before  he  canae 
home;  but  that  the  family  had  not  rapped 
when  the  pannel  came  home;  and  that  the 
mumel  supped  in  company  with  Allan  Biedc 
Stewart,  Fasnacloich's  daughter,  and  AroU- 
bald  Cameron,  nephew  to  Fasnacloich^  end  the 
pannel's  family." 

Archibald  Cameron  deposes,  *'  That,  upon 
Monday  the  1 1th  of  May  last,  the  deponeet 
came  from  Fasnacloich's  house  to  the  pjuioel^ 
house,  after  mid- day:  that,  some  little  tine 
after  he  came  there,  he  saw  Allan  Breck 
Stewart:  that  the  pannel  was  not  at  bone 
when  the  deponent  came  first  there,  but  cane 
home  before  night- fall:  that  the  depoDcnl, 
pannel,  Allan  Brack,  and  the  family,  sat  in  one 
room,  and  supped  together :  that  he  did  not  ob- 
serve Allan  Breck  and  the  pannel  speak  in 
private  that  night:  that  the  deponent  and 
Allan  Stewart,  the  pannel's  son,  lay  in  one  beds 
and  Allan  Breck  and  Charles  Stewart,  son  to  the 
pannel,  in  another  bed  in  the  same  bam  :  that, 
to  the  best  of  bis  remembrance,  they  all  went 
to  bed  much  about  one  time,  and  got  up  toge- 
ther next  morning :  that  the  deponent  did  net 
observe  the  pannel  about  the  bouse  next  i 
ing  when  he  got  up." 

And  the  depositions  of  these  witne 
corroborated  by  Donald  Campbell  of  AinK 
who  deposes,  "  That,  upon  Monday  the  11th 
'  of  May  last,  the  deponent  sent  to  the  panneli 
desiring  him  to  come  to  him  at  Keils,  a  hrm 
belongmg  to  the  deponent,  at  about  a  mile's 
distance  from  the  paniiePs  house:  that  fbe 
pannel  accordingly  came  there  to  him  that 
afUrnoon,  as  soon  as  he  expected  him :  that 
the  deponent's  business  with  him  was  for  bis 
assistance  in  setting  that  farm :  that  the  farm 
was  accordingly  set,  and  the  pannel  himself 
took  part  of  it,  and  conducted  the  deponent  e 
part  of  his  way  home,  and  then  they  parted : 
that,  before  parting,  he  desired  the  pannel  togo 
next  morning  to  Appin's  house :  that  the  pan- 
nel accordingly  diil  so,  and  the  deponent  wd  n 
letter  from  him  from  that  place." 


JuY  Miirden 

wlial  Tiaa  betn  said,  therefore,  it  ap* 

Eifti  the  prdseciilor  lias  iiol  only   nut 

L  llttt  opoo  the  1  tth  of  May  there  was 

*~|f  oOiicefied  wtih  regard  to  the  murder 

the  paontfl   and  Allan  Breck,  hut,  on 

CMilfUi,  it  in  proTedf  a»  strongly  an  the 

are«C  tJie  thinf  can  admit  of,  that  no  such 

or  couU  he  concerted  betwixt  I  hem 

I  ftnd  \{  this  is  oace  estahh^hed,  it 

llie  fo«ii»dation  upon   tvhich  the    wlmle 

;  as  it  ii  not  pretended,  that  the  pan- 

I  Alhui  Brick  hati  ever  any  other  opuor- 

•f  eooirerainii^  lui^ether,  helwjjtt  Ule- 

from  Edinburgh  and  the  time  of 

Tbe  ikini  article  charged  tu  the  indictnoent 
I  n^  TMi,  IB  iwrauaocc  of  the  concert  entered 
\  Wfoti^  Ibe  1 1th  of  Mav,  the  pannel  had  fur* 
fireek  with  a  suit  of  hiti  own 


A.D.  17552. 


[S30 


I  oHer  to  serve  aa  a  diagui^,  that  he 
I W  ntthled  to  commit  the  crime  with  the 

aalclj. 
t  Miilw  irst  place,  it  must  occur  to  t'ftty 
I  vbokian  me^  that  this  is  a  mostimproba- 
'p|  ^  if  it  had  been  intended  that  Allan 


hsM  be  di^ui^eej  at  the  time  of  com- 

lb«  Gime,  it  is  impossible  it  could  he 

Vf  ialcnikii,  that  lie  should  be  disguised 

mt  bdoogiog  to  the  pannel ;    for^  how- 

ifaw  m^l  bare  sen ed  for  a  disguise  to 

Br«dE«  il  might  aerie  eaually  for  a  point 

* — *^  "painai  the  pannel :  aud  therefore 

rie  potsitioii  can  ijfain  credit  with 

aotesei  it  shall  first  he  supposed,  that 

ia  not  only  the  most  wicked,  but  also 

_  fooliah  aiuoti^'  men  f    which  will  not 

^«Mily  er»4iied  by  you»  ^^  ho  haTe  been  wii- 

avKilo  ibc  idccent  appearance  he  has  made  at 

iiitraL 

94f »  k»  tb«  story  ia  improbable,  so  it  is 

liiMitittA  of  all  foundation  io  truth ;  for 

red  b^  any  of  the  witnesses,  that 

ftaroiaheu  or  gave  the  cloihes  to 

he 
put  on  a  suit 
bckmgiag  to  the  pannel,  or  his 
Ibi  Alooday  before  tike  murder  ;  yet 
dvmb  be  ri4icoWia  Io  nay^  that  a  party  could 
ktiiifiqlaBl  u  aoccssary  to  a  murder,  because 
te  tb»  iDianlerrr  had  on  bis  clothes  at  the 
tei  ivh«B  Uie  crime  was  commiiteii. 
Aod,hwt1y,  upon  this  head,  the  circumstance 


idl  :  and  though  it  is  proved^  that 
bia  French  clothes,  and  i)ut  on  a  s 


iffbuiguig  the  clotbaa  has  been  fully  account* 
illk  m  ibe  foroitr  part  of  the  argument  ^  and 
■  il  bflp  l««o  efearly  prOTetl,  that  Allan 
hmk  bail  bico  foroaarly  iq  use  of 
tea  tatjr  dolbea,  tlie  accideot  of  hii 
IMb  •■  ad  the  time  when  the  murder  ¥ 


and 
Allan 
wearing 
II  haviug 
was  com- 
ba? a  DO  weight  against  the  pannel. 
Tbf  fowili  article  cbarc^ed  in  the  libpl  is, 
IWltii|iooj^«iDoniiiiff  of  tbat  day  upon  which 
lbt»ytteMiaiuK!Pi^  tbe  pannel  had  st'ut  John 
iob«  A  aervanl  of  bia  owti,  to  Fort- 
bi  ^f4tsf  Io  watch,  and  gire  intelli* 
mmm  tbe  niotioni  of  the  deceased  ; 
i£09  bats  b«cii  takes  to  prore  this 


Bnt^  tinluckily  for  the  prosecutor,  this  fact 
happens  to  be  contradictetl  by  every  part  of  tha 
evidence. 

In  the  Brit  place,  it  appears,  from  the  oath  of 
John  Beg  Maccombich,  **  That  it  was  known 
over  the  whole  country,  that  Glenure  was  to 
have  been  that  evening  ai  Kintaltine,  which 
lies  on  this  side  the  ferry  of  Ballachelish  ;'* 
and  therefore,  if  the  pannePs  intention  had 
been  to  watch  Glenure*s  motions,  it  is  natural 
to  ask,  what  good  reason  there  could  be  to 
order  his  servant  to  cross  the  ferry,  and  go  on 
to  Fort-VVilliam,  when,  by  waiting  at  the  ferry, 
be  was  an  re  to  get  inteUigence  of  Glenure*9 
motions? 

2dly,  The  fact  is  contradicted  by  the  depoii* 
tions  of  Fergus  Kennedy  and  John  Mackenzie, 
two  witnesses  also  adduced  for  tbe  prosecutor, 
who  concur  in  deposing,  *^  That  John  MaccoU 
met  Glenure  and  his  company  in  their  way 
southward,  about  three  miles  from  Fort-Wil- 
liam.'^— 1/  his  errand  had  been  to  watch  and 
give  intelligence  concerning  G!eniire*s  motions, 
he  would  have  certainly  returned  immediately, 
and  have  given  iotelhgeoce  accordingly.  But, 
instead  of  this,  it  appears,  from  the  depositions 
of  these  witnesses,  compared  with  the  oaths  of 
William  Stewart  and  his  wife,  that  John  Mac- 
coll  did  not  return,  but  went  on  toForl^William  ; 
which  is  utterly  mconsistcnt  with  what  tbe 
pruf^K!Utor  supposes. 

And  lastly^  this  circumstance  is  flatly  con- 
tradicted by  theoathof  John  Beg  Maccofl  him* 
self,  who  expressly  deposes,  ^*  That,  when  he 
went  to  Fort-WilUam  with  the  above  letter  io 
Charles  Stewart,  the  notary,  he  had  no  orders 
from  bis  master  to  em|uire  after  the  motions  of 
Glenure,  or  to  acciuaint  nny  bmly  thereof;  but 
had  been  sent  to  Fort-Wttham,  iu  order  to  bring 
a  notary  from  ihence,  to  take  a  protest  against 
Glenure  upon  the  day  foltowiog  :'^  and  as  that 


part  of  his  evidence  is  confirmed  by  the  n&u- 
nel's  letter  to  Charles  Stewart,  produced  by 
the  prosecutor ;    so  the  remarkable  haste  with 


which  John  Beg  Maccoll  went  to  and  returned 
from  Fort- William,  clearly  shews,  that  it  wfta 
no  sham  errand,  but  that  the  pannel's  real  in* 
tention  was  to  proceed  in  a  l^^l  way,  by 
taking  a  protest  against  Glenure,  in  case  be 
should  attempt  to  execute  the  ejection. 

The  next  circumstance  chained  in  the  ]il>el 
ia,  That  when  John  Mackenzie  informed  the 
pannel  of  the  murder,  he  appeared  no  waya 
coocernetl  nor  surprised  ;  and  that  neither  he, 
nor  his  family,  went  to  look  afier  the  dead 
body. 

But  as  this  circomstanoe  is  extremely  tnflingi 
so  the  first  part  of  it  is  clearly  disproved  by 
the  osth  of  John  I^Iackenzie,  Gfenurc^s  servant, 
who  deposes,  *'  That  immediately  atler  the 
murder,  he  went  to  Jameti  Stewart's  hou5«  iu 
Duror;  and  James  seeing  him  weeping,  ask e<l 
what  the  matter  was  ?  and  the  deponent  told 
him,  his  master  was  kilted  i  whereuiHin  Jamea 
Stewart  aaked  him,  by  wbom»  and  how  it  waa 
doueP  To  which  be,  tbe  depooHit  aniwere4» 
tbat  be  did  not  know  by  wboin  £  amt  belieroit 


231]  25  GEORGE  11. 

It  to  be  a  shot  from  a  gran  or  pistol.*'  And 
further  deposes,  **  That  when  he  satr  the  pan- 
nel  at  his  house  in  Aucharn,  as  aforesaid,  the 
pann^l  H-riinj;  his  hands,  expressed  great  con- 
cern at  what  had  happened,  as  what  mij^ht 
bring  inn«»ccnt  people  ti»  trouble,  and  prayed 
that  innocent  people  might  not  be  brought  to 
trouble."  And,  to  the  same  purpose,  the  said 
John  Beg  Maccoll  deposes,  '*  That,  when  John 
Mackenzie  informed  the  pannel  of  the  murder, 
he  said,  It  was  a  dreadful  accident,  and  he 
was  afraid  it  might  bring  trouble  on  the 
country  ;  and  appeared  sorry  tor  what  bad 
happened.*' 

It  is  indeed  trne,  that  the  same  witness 
has  deposed,  **  That  neither  the  pannel,  nor  any 
of  his  family,  went  near  the  dead  body :"  but 
as  this  IS  a  circumstance  of  no  manner  of 
weiglit ;  so  the  witness  has  accounted  for  it  in 
a  Tery  natural  way,  viz.  That  as  the  deceased 
and  the  ]>aimel  had  not  been  in  good  terms 
together,  the  pannel  did  not  chnse  to  go  to  the 
place  where  the  hotly  lay ;  and  more  espe- 
cially as  he  knew  that  some  of  those  who  were 
to  meet  Gleoure  had  arms,  and  it  was  impossible 
to  know /what  unreasonable  lengths  their  re- 
sentment might  carry  them :  at  any  rate,  it 
shews  bow  much  the  prosecutors  are  pinched 
in  point  of  argument,  when  they  are  obliged  to 
found  upon  it,  as  a  circumstance  agpiinst  the 
pannel,  that  he  did  not  go  from  his  own  house, 
which  is  about  two  miles  distant  from  the  place 
where  the  murder  was  committed,  merely  to 
assist  at  the  funeral  of  a  person  to  whom  be  was 
DO-way  related. 

Theftfth  article  charged  in  the  libel  is,ThA, 
tipon  the  second  day  atUr  the  murder,  the 
pannel  had  sent  five  guineas  by  the  nackman  to 
Allan  Breck,  in  order  to  enable  bim  to  make 
bis  escape.  As  to  which,  gentlemen,  I  do  ad- 
mit, that,  if  at  this  time  the  pannel  had  been  in 
theknowlc<lge  that  Allan  Breck  was  the  mur- 
derer of  Glenure,  his  furnishing  him  with  mo- 
ne^  in  order  to  enable  him  to  mako  his  escape, 
might  have  been  considered  as  an  offence  de- 
serving punishment.  At  the  same  time,  how- 
ever wrong  this  would  have  been,  it  might  have 
admitted  of  an  excuse,  from  the  connexion  and 
relation  which  the  pannel  had  to  Allan  Breck. 
And  it  is  now  proved,  by  the  concurring  testimo- 
nies of  two  witnesses,  that  the  pannel  had  been 
left  his  tutor ;  and  therefore  it  is  much  doubt- 
ed, how  far  the  pannel's  sending  money  to  Al- 
lan Rreck,  though  be  had  known  him  to  be  the 
murderer,  would  have  been  punishable. 

But  however  the  law  might  have  stood  upon 
that  supposition,  it  will  not  apply  to  the  present 
case.  The  pannel  denies  he  knew  any  thing 
of  Breck's  being  the  murderer :  and  as  he  was 
well  acquainted  with  bis  particular  circum- 
stances, of  which  he  has  now  brought  full  evi- 
dence,  by  the  concurring  testimonies  of  many 
witnesses,  that  he  bad  been  first  a  deserter,  next 
a  rebel,  and  was  then  in  the  French  service ;  1 
conceive  it  was  noways  criaiiiial  in  the  pannel 
to  advance  this  trifling  sam,  in  order  to  eoa- 
JMf  bim  to  make  hit  ctcape :   h  wu  ddng  no 


Trial  of  James  Stewart^ 


[sse 


more  than  what  any  good-natured  man  would 
have  done  to  his  friend  in  the  like  circum- 
stances :  and  hard  will  be  the  case  of  the  pan- 
nel, if  he  should  be  condemned  merely  fordoing 
a  good-natured  deed,  which  had  nothmg  crimi- 
nal in  it ;  more  especially  as  he  had  reason  to 
believe  the  message  which  was  sent  him  from 
Allan  Breck,  importing,  that  he  had  no  acces* 
sion  to  the  murder,  but  judged  it  prudent  for 
him  to  leave  the  country,  in  respect  of  his  par- 
ticular circumstances,  explained  as  above. 

And  inileed  bis  majesty's  advocate  does  not 
seem  to  lay  much  stress  upon  this  cnrcimistance 
by  itself:  but  then  be  has  attempted  to  rear  up 
certain  arguments,  tending  to  shew  that  the 
sending  of  this  money  must  have  been  in  con- 
sequence of  a  previous  concert  with  Breck. 
And,  in  the  first  place,  it  has  been  said,  that  the 
pannel  could  not  have  known  to  have  sent  the 
money  to  Roalisnacoan,  if  it  had  not  been  ia 
consequence  of  such  previous  concert. 

But,  with  submission,  there  is  a  very  satisfy- 
ing answer  to  this  objection,  viz.  That  upon  too 
day  after  the  murder,  the  pannel  had  received 
a  message  from  Allan  Breck,  informing  hhil 
where  he  was,  and  desiring  him  to  send  whit 
money  he  could  spare,  to  enable  him  to  make 
his  escape.  This  is  distinctly  proved  by  the 
concurring  testimonies  of  no  less  than  four  wit* 
nesses,  whose  depositions,  as  they  connect  with 
one  another,  fall  now  to  be  attentively  con- 
sidered. 

Katharine  Macinnes  deposes,  <'  That,  in  the 
eveninc^ofthe  Uth  of  May  last,  the  dq[NmeBt 
saw  Allan  Breck  Stewart  at  a  goat4ioiue  in  the 
moor  of  Ballachelish,  afler  Glenure  was  killed : 
that  Allan  Breck  then  asked  her,  what  was.tbe 
occasion  of  tlit-^  stir  in  the  town  ?  and  that  aho 
told  him,  Glenure  was  murdered  :  and  farther 
asked  her,  who  might  have  committed  the 
murder?  and  that  she  told  him,  she  did  nol 
know :  and  that  the  said  Allan  further  deairid 
the  deponent  to  tell  Donald  Stewart  in  Balla- 
chelish  to  go  to  the  pannel,  and  desire  him  It 
send  the  said  Allan  money :  and  that  she  d^ 
livered  this  message  to  Donald  Stewart  that 
same  night ;  and  that  she  told  the  said  DooaM 
Stewart  where  she  saw  Allan  Breck." 

And  Donald  Stewart,  the  next  witnest,  d^ 
poses,  <'  That,  upon  the  evening  of  Thursday 
the  14th  of  May  last,  about  night-fall,  Katba* 
rine  Macinnes  came  to  the  deponent,  and  toM 
him,  that  one  without  wanted  to  speak  to  himi 
that  this  message  came  to  him  in  Balhicheliih^ 
own  house :  that,  when  he  went  out,  the  nid 
Katharine  Macinnes  told  him,  that  it  was  Allan 
Breck  that  wanted  him,  and  that  be  was  a  little 
above  the  house  in  the  brae :  that  the  dtponeol 
went  up  to  the  brae,  and  met  Allan  Brew^  who 
was  then  dressed  in  a  great  coat,  and  a  dark 
short  coat  under  it,  with  white  metal  buttom: 
the  deponent  told  him  of  the  marder,  and  said, 
it  could  not  be  but  that  he,  Allan  Breck,  wap 
about  it :  to  which  Allan  Breck  answered,  that 
he  had  heard  of  the  marder,  bat  had  no  hand 
in  it :  to  which  the  deponent  reptU,  he  ihi 
■ot  bdiefe  bim:   that  the  aaid  AU«n  "^ 


I  SB] 


Jiif  Murder, 

I  lo!d  the  Jcponent,  he  was  going  iniine- 

lA  Itavc  tlie  kirr^doin,  was  very  scarce 

:  tUeii  for  KoaUijuacoani 

It  to  acquaint  ihe  pannel^ 

m  mtiW  to  koalisndooan,  aud  desire 

IfmmWe  to  aenU  hitn  money  there  ;  aoil 

nrtit  ihtfti  promised  to  acqunuit  J.imes 

of   Ib^  abore   mci^satre  :    that   Allan 

he  bcUef4'd  lie  would   be  siispecteil 

If  tbe  Munier  -,   and  upon  tliat  accouiili  and  an 

bt  WM»  a  dtf*L'rter  Jurmeily  from  the  arniy^  it 

vaa  iMremry  for  hiftt  to  lejixt  the  khi^dum  : 

aft**-  '••-    'uiTersation  wiib  the  paunel 

re,  he  Uelif  ered   the  above 

Cc  1,^1^  .x.aii  Breck  to  the  pannel  j    and 

bi»el  did  tiot  say  whether  or  Qot  he 

I  IIm"  iDoney  ;   and  this  conversation 

about  tpii  o'clock  in  the  t'oreooon  of 

«  t^tli  of  May  last;    and   that  there 

Fms  ttiliiiljr  |ittf»ent/*     And   further  deposes, 

1  "  Tb^V  9yon  the   deponent's   delivering  the 

r  from  AlUn  lireck  to  the  pannel, 

llie p«ftiict  aalEtd  why  AUosi  Breck  himself  did 

I    Tity,   if  he   wanted  it?    To 

I,  to  the  best  of  his  remem- 

rrjjiiL^i,  lutii  Allan  Brtfck  told  him,  he 

f  hf  0ii<|ie€ted  Ibr  the  murdpr,  and  was  a 

'■ '*  "  jninoelunsweredi  That 

1 4 reck  was  not  guilty  of 

- — uif  the  above  coDversa- 

itb  the  ^nnel,  Alexander  fe^tewart^  Dun- 

•tfimcli»  avid  several  other  possessors 

"  iruch,  were  in  the  adjoining  field 

ban  at  such  a  distance,  that  the  depo- 

^aumol  llitok  they  could  hear  the  above 

I  Uir  depositions  of  these  two  wituesse<?, 
I  c^tttkfct  exucily  toqctlier,  it  is  disfinctly 

Ci'm  what  ttmniier  the:  pannel  came  to  the 
lerfff^   of   the  pface  where  Allan   Breck 
|MMi)ietr  deposition*)  are  further  supported 
•tiioo  of  John  Stewart  yoimger  of 

sb,   who  deposes,   *' That,   the  day 

Ari^  munler^  the  deponeot  wa»  a*  the  pan- 
■it>  ^»0f ,  who,  alter  twelve  oVIofk  of  the 
4rf,  My  Ibe  depiriHif,  that  he  had  a  messajfe 
nk  BMmiiog  from  Allan  Breck  by  Donald 
INiwt,  U»  aend  hint  money  ;  but  does  not  re- 
■mfor  wlieihtr  the  uanuel  told  him  the  place 
«4««  br  was  Hifccted  to  ^letid  it ;  and  the  pan* 
lal  laid  liic  drpotieot,  that  he  was  resolved  to 
M«l  bin  Qioiiey." 

A#d  «ko    by  the  depoattion  of  Alexander 
4k«ifi    in     AiichindatTi»ch,    who    deposes, 
L^fbai,  loibe  best  of  him  knowledge,  be  saw 
I9l9win  tu  Ballarhf'lixh  and  the  pannel 
,  np9ti  the  «iar«  lii*t*  between  Aueham 
biiMlfl rr^^v  "•  ''*»  trioruin(i  of  the  15tb 

I  Mid  un^elf  un*f  at  the  time 
grOQiiu        .  ..ii'  other  tenants  of  the 

i  leftme^  gfiitteutan  on  the  other  side  has 

f^Wiaed  t^  (ixctpt  n^niiiiit  thin  part  of  the 

llkat  ibr  two  uiittcr»at  witnesses  are 

I  with  thr  fatoiiy  of  Ballacheli«h  ; 

m  of  tlie  facU,  they  are  single 

I I  ii4  UiM  iiiey  do  out  entirely  agree 


A,  D.  1752.  [»SI 

a£  to  the  Import  of  the  message  sent  to  Doiuilit 
Stewart  by  Allan  Breck. 

J  must  acknowledge,  I  am  under  no  amatl 
difiicuTty  to  tind  out  any  foundation  for  the  first 
part  of  the  objection.  U  is  neither  pretendett 
nor  proved,  that  Halfachelish  is  at  all  related  to 
ihe  pannel ;  and  as  it  cannot  be  said  that  any 
valid  objection  could  have  been  made  againiit 
Batlachelish  himself,  if  he  had  been  produced 
as  a  witness  for  the  paonel,  far  less  does  any 
objection  lie  aq^ainst  the  son-in-law  or  servant 
<d  Ballachclish,  ujion  account  of  his  betnj^  in 
the  interest  of  the  pannel,  of  whicb»  howevet, 
of>  sort  of  evidence  has  been  brought.  And  as 
to  the  second  part  of  the  objection,  that  there 
are  not  two  witnesies  concurring*  a«  to  the 
wliole  of  the  facts  relative  to  the  message  sent 
by  Allan  Breck  to  Donald  Stewart ; — the 
learned  gentleman  would  do  well  to  observe, 
bow  much  of  his  own  proof  is  founded  only 
upon  siagle  testimony  ;  anil  then  let  biiu  shew 
cause,  why  his  packman  ond  bouman,  though 
siogle  wlfnesseS}  should  be  credited^  and  the 
like  indulgence  should  not  be  given  to  the 
pannel. 

At  the  sarae  time  it  must  be  ob«erTed»  that 
the  two  witnesses  who  have  deposed  with  re- 
gard to  this  message,  are  not  single  ;  they  con- 
cur as  to  the  material  part,  that  Allan  Breck 
had  sent  a  message  to  the  pannel,  desiring  him 
to  send  him  a  present  supply  :  and  though  the 
two  witnesses  differ  with  regard  (o  the  precise 
words  used  by  the  maid  in  delivering  Allan 
Breck's  message  to  Donald  Stewart ;  yet,  aa 
they  agree  in  every  material  ctrcujnstance,  no 
regard  ought  to  be  had  to  IriHiog  rariationa ; 
and  it  is  believed  the  gentleman  on  the  other 
side  will  admit,  that  the  objection  would  hare 
been  full  as  stron^f  (if  not  stronger,)  if  the  twa 
witnesses  had  both  used  the  same  words. 

And  lastly.  As  to  the  obfterration  that  tbe 
witnesses  differ  among  tbemselves,  as  to  the 
precise  hour  when  the  packman  arrived  at 
Fort  %Villiam,  and  demanded  the  money  trom 
Williaoa  Stewart,  it  is  noways  surprising,  that, 
at  so  great  a  distance  of  time,  wituesses  should 
not  be  altogether  exact  as  to  hours  and  minutes. 
What  appears  most  probable  is,  that  William 
Btewart  and  his  wife  have  both  mistaken  the 
hour,  as,  from  their  oaths,  neither  of  them 
seem  to  be  positive  with  regard  to  that  inatter : 
and  Stewart  the  packman  seems  to  hare  been 
more  attentive  to  thb  particular,  since  he  not 
only  swears  a.<i  to  the  time  when  he  received 
hit  message  from  the  pannel,  which  he  says 
was  about  12  at  noon,  but  also  as  to  the  time 
when  he  delivered  it  to  William  Siewartp 
which »  as  the  packman  says,  was  early  in  Ihe 
evening :  and  as  this  agrees  entirely  with  the 
account  which  Donald  Stewart  gives  of  the 
matter,  when  be  says,  •*  That  he  dehvered 
Allan  Breck*s  message  to  the  pannel  about  10 
o'clock  forenoon  ;*'  so  it  is  plam  there  could  be 
no  concert  betwixt  these  two,  not  only  as  Do- 
nald Stewart  is  above  alt  suspicion  of  that  kind, 
but  also  as  the  packmau  has  been  kept  under 
cluse  coafioemetit  by  Ihe  piroMCUtori  and  bad 


235] 


25  G£ORGE  IL 


'Trial  of  James  Sietoartf 


[SS6 


no  opportunity  of  coDTentn^r  with  Donald 
Stewart  from  the  time  of  the  murder  till  he 
was  produced  as  a  witness :  and  I  cannot  help 
thinking^,  that  it  would  sound  strangely  to  say, 
that  the  prosecutors  should  be  allowed  to  give 
credit  to  this  packman  where  he  swears  fur 
them,  and,  at  the  same  time,  to  reject  his  testi- 
mony where  it  happens  to'make  a^nst  them. 

The  prosecutor  nas  been  pleased  te-lav  great 
stress  upon  the  oath  of  John  Breck  Blaccull, 
bouman ;  and  in  particular  upon  that  part  of  it, 
where  he  says,  that  Allan  Breck  had  desired 
him  to  go  into  Fort  William  with  a  letter  to 
William  Stewart,  in  case  some  money  did  not 
come  to  him  before  next  morning ;  and  this,  it 
has  been  said,  agrees  exactly  with  the  mes- 
sage sent  by  the  pannel  to  William  Stewart, 
desiring  him  to  give  credit  in  S/.  sterling  to 
John  Breck  MaccoM,  bouman  in  Koalisnacoan, 
in  case  he  came  to  demand  it ;  and  it  is  pre- 
tended, that  this  is  a  clear  proof  of  a  prirate 
concert  betwixt  the  pannel  and  Allan  Breck, 
settling  the  manner  in  which  he  was  to  be  sup- 
plied with  money. 

But  as  the  whole  of  this  argument  is  founded 
upon  the  oath  of  the  bouman,  deposing  to  a 
long  romantic  story,  in  which  he  is  altogether 
nosupported,  I  am  entitled  in  law  to  plead,  that 
bis  oath  is  not  to  be  held  as  le^l  evidence 
against  the  pannel ;  more  especially  as  it  ap- 
pears, from  what  has  been  already  said,  that 
his  evidence  is  disproved  in  one  very  material 
article,  in  which  he  deposes  to  a  very  strong 
expression,  as  applied  bj^  the  pannel  against 
Glenure,  at  a  time  when  it  is  proved  they  were 
in  perfect  friendship  together. 

Sdly,  The  oath  of  the  packman,  relative  to 
this  article^  is  as  little  to  be  relied  on ;  for, 
though  he  has  now  ileposed,  that  the  pannel 
had  desired  him  to  tell  William  Stewart,  not 
only  to  send  him  5l.  but  also  to  give  credit  for 
the  like  sum  to  John  Breck  MaccoU  in  Koalis- 
nacoan, in  case  he  came  to  demand  it ;  yet  it  is 
remarkable,  that,  in  the  libel,  which  it  must  be 
preaumed  was  taken  from  his  own  mouth,  no 
mention  is  made  of  the  5/.  for  which  credit  wu 
to  bNB  given  to  the  bouman ;  and  therefore  this 
must  nave  been  a  new  discovery  made  1^  the 
packman  since  printing  the  libel.  And  it  it 
further  remarkable,  that  this  part  of  the  pack^ 
man's  evidence  is  contradicted  by  the  oath  of 
William  Stewart,  who  expreasly  deposes,  that, 
at  the  time  when  the  packman  delivered  his 
message  from  the  pannel,  no  mention  was 
made  of  the  name  of  Allan  Breek ;  and  there- 
fore no  argument  can  be  drawn  from  any  thing 
either  the  paoknan  or  bouman  have  said  upon 
this  matter. 

But,  Stio,  soppoaing  all  the  bouman  has  said 
to  be  true,  viz.  That  Allan  Breck  had  desired 
him  to  carry  a  letter  to  William  Stewart,  it  will 
■ot  follow,  that  he  and  the  pannel  were  under 
«ny  previous  concert  relative  to  that  matter; 
for  as  Allan  Breck  was  aoqaaintcd  with  William 
Stewart,  and  as  nearly  related  V>  hin  as  he  was 
lo  the  pannel,  it  was  natural  for  fain  to  have 
to  William  Siewwt  10  aupply  him  ID 
1 


his  necessity  ;  and  therefore  his  doing  so  will 
not  prove  that  it  was  done  upon  any  prevMua 
concert  with  the  pannel.  From  the  commis- 
sion Allan  Breck  had  given  to  Donald  Stewart 
upon  the  Thursday  evening,  he  had  reason  to 
expect  that  the  pannel  would  have  sent  him  a 
supply  with  the  first  opportunity ;  and  as  that 
had  not  happened,  it  was  natural  for  him  to 
apply  to  William  Stewart,  who  was  his  ae- 
quaintonce,  and  as  nearly  related  to  him  as  tha 
pannel. 

The  learned  gentleman  has  been  pleased 
also  to  found  upon  the  |>06tscript  subjouied  to 
the  panuePs  letter  of  the  14th  of  Mayt  to 
Charles  Stewart ;  in  which  he  desires,  "That 
William^  may  send  immediately  Si.  aterliufi 
to  pay  lor  four  milk  cows  he  had  bought  tor 
his  use  at  Ardshiet :"  from  which  it  is  inlemdi 
that,  before  the  murder,  the  pannel  was  pr^ 
paring  money  to  give  Allan  Breck,  in  order  to 
enable  him  to  m&e  his  escape.  But  as  that 
letter  and  postscript  do  not  mention  the  nana 
of  Allan  Breck,  nor  to  what  purpose  the  mooej 
was  intended  to  be  applied,  the  observation  doep 
not  deserve  any  answer ;  though  at  the  saiM 
time  it  clearly  proves,  that  the  most  innoecBt 
circumstances  have  been  laid  hold  of,  ani 
reared  up  into  argumente  against  the  panncL  . 

Thus  it  appears,  that  no  argument  can  bt 
drawn  from  the  droumstanoe  of  the  papneTi 
sending  money  to  Allan  Breck ;  as  it  is  nal 
proved,  that  the  pannel  then  knew  that  the 
murder  had  been  committed  by  him-;  and  far 
less  is  it  proved,  that  there  had  been  any  pn- 
vious  concert  betwixt  them  concerning  tbf 
sending  of  that  money  before  the  murder  wap 
committed.  And  indeed,  gentlemen,  it  ap- 
pears to  me,  that  the  circumstonces  which  at- 
tended the  sending  of  this  money,  and  in  parti- 
cohur  the  difficulty  there  was  in  obtaining  il. 
cannot  fail  to  convince  every  unprejudiced  IM> 
son,  that  this  horrid  murder  had  not  (eei 
committed  in  consequence  of  any  previooa  can* 
cert  betwixt  the  pannel  and  Allan  Breck  ;  for, 
if  that  had  been  the  case,  it  is  impossible  to  be- 
lieve, that  the  money  would  not  have  bean 
more  early  provided.  It  behoved  to  occur  tp 
both  parties,  that  money  would  be  necaBsary  to 
enable  the  murderer  to  make  his  escape ;  u4 
as  it  clearly  appears,  that  neither  the  one  Mr 
the  other  wu  in  cash  upon  Monday  the  lltk^ . 
when  the  time  and  manner  of  committing  thf 
murder  is  supposed  to  have  been  concerted,  it 
is  impossible,  that  this  important  matter  of  pm* 
viding  the  money  would  not  have  been  instants 
ly  set  about,  or  that  it  would  have  been  debiyei 
till  the  hour  when  the  execrable  act  wai  to  bo 
committed. 

The  learned  gentleman  has  been  plcoMf 
also  to  lay  weight  upon  another  cucumatanoa^ 
viz.  That,  some  days  after  the  murder,  twp 
guns  were  found  concealed  near  the  panoePi 
house,  one  of  them  loaded,  and  the  other  OB? 
loaded :  and  it  has  been  insinuated^  as  if  tho 

I  unloaded  gun  wa^  that,  wi|h  whicl|  AVob 
Breck  committed  tbo  imirder. ..  B«^  thia^SHir 
cttinataiioe  ii  raolly  ao  trifling,  that  it 


yiiT  Murder, 

ftDSWir.  ft  is  Wfilt  known, 
.  of  Ibe  coiiDlry  where  tfie  pannel 
*~^  tbeDifirniingAci  ;  and  lliere' 
lyu  inrpmin^,  tlmt  the  g'utis 
I  atnj  llmt  orders  were  ^if  cu  lo 
iinr  when  it  m»s  rnreseeD,  th»l 
I  U>  he  ruftile  by  the  military  ; 
^ oftlie giinff  wag  unloaded, It  is 
'.  urim Agination,  Troin  th<!hce  to 
^^JeDC«,  I  hit  thifi  WAS  the  gua 
amrder  wis  committed. 
iff  from  the  oailis  of  John 
siigml  MaccoHi,  both  witaesaet 
k  tti«  prn««culor,  that  the  little  gun, 
ifbuttil  unhmded,  was  in  such  tdt- 
rnl  Itie  lime  when  the  murder 
'  tbftl  if  if  impossilde  it  could  hare 
the  tiead  of  any  morial  to  use 
ime  supposed  by  tlie  prosecutor. 
klldeoMes,  «'That  be,  the  depo- 
^  iU  aoout  guDs ;  but  heard  Atlan 
I  Stewart  the  pannePs  80n>  eom- 
t  ibst  the  guns  were  in  bad 


A.  D.  175S. 


[238 


I  depose,  **  That  neither  of 
f  in  ipood  order ;  that  the  targe  or 
~"  m  u«e,  when  goitjgr  to  he 
al  half*  cock;  and  that  the 
t  in  mm  to  ftiap  or  miss  ftre :  that 
a&  old  worn  flint  in  it,  and 
thi9  flint  in  the  taid  gun, 
m  WM  ia  use  to  aee  it  sUnd  at  the  end 
prnd  10  ahore;  but  did  not  obsrrre 
r  il  lUul  m  Hint  or  not,  when  he  took  it 
^tli«  ffjriiel ;  that  he  knows  no  fault 
I  nttle  pun  had,  but  its  being  in 
t^  mnd  thut  the  lock  was  on  the 
twhid  it  on  the  Friday  erening : 
'  carri^  it  out  odc  morning, 
miiffaTe  with  him  thrice  at  a 
d  be  sbot  with  it  the  fourth  time^ 

r,  captain  IHvid  Cha- 

tCaoapbell  concur  io  deposiogi 

;•  glut,  ai  the  time  when  it  was 

:K  bad  order,  that,  for  want  of 

)  lock  waa  tied  to  llic  stock  by 

tbetttfbrep  tipon  the  wljole,  I 

» judge,  how  far  it  is  poftsihli^ 

I  order  would  hare  been  used 

I  aUDpooed  by  the  prosecutor ;  or 

alieto  carried  back  ao  quickly, 

MBi  to  the  pannH's  housie  at' a 

'  pmon  was  on  the  waloh  en- 

I  Qtirdcr. 

of  no  tmportsncef  that   neither 

'  Douirat  Maccoft  siiw  this  gun,  at 

kV  uid  upon  the 

f  ipf  these  two 

^  il  for  itf  so  they 

|iltri>-  illan  Stewart,  the 

,kaJ  iIhiu  tuhi  liKrn,tli!it  he  hnd  hid 

el ;"  and  a*  they  atxoriim^jfy 

h  the  day  hiUowing^  it  re- 

III  bf  auspicioo,  %vhich  might 

fr»m  tho  drcuuiMancf,  tnat 

hid  witli  tht  r^t  of  ibe  arms 


I  on  the  Tborsday  evening.  At  the  some  timo 
the  pannel  must  beg  leave  to  say,  that  it  wouhl 
rei^uire  some  explanation  how  it  has  hapjNfof^, 
that  the  lock  of  this  little  gun  comes  to  be  now 
inissiog,  wbeo  such  care  has  been  taken  to  pre- 
serve every  other  particular,  which  could  pos- 
sibly furnish  any  hmidle  for  an  ai^umeut 
against  the  pannel.  A  good  deal  of  weight  has 
been  also  laid  upon  another  circumstance  of  the 
like  nature  with  the  former,  viz.  That,  ujion  tho 
day  after  the  murder,  Allan  B reek's  okithe* 
were  hid,  in  consequence  of  an  order  by  tko 
pannet^s  wife  t  but  as  it  is  not  easy  to  figure 
how  an  order  given  b^  the  panners  wife  should 
bate  any  effect  against  the  paunel ;  so  it  is 
humbly  thought  that  this  circumstance  may  be 
easily  accounted  for.— It  was  foreseen,  that  ai 
Allan  Breek  was  about  to  leave  the  country, 
he  would  be  immediately  suspected  as  guilty 
oftlie  murder ;  and,  as  there  was  great  reason 
lo  helieie  that  a  search  wouUl  b«  forthwith 
rnade  in  erery  place  where  Breck  was  in  use  to 
visit,  it  was  natural  tor  the  pan  net's  wife  tu 
put  his  ctothes  out  ol'  the  way,  that  they 
might  uot  be  the  ocoasioo  of  suspicion  against 
the  pannel  or  his  family. 

His  majesty  ■  s  ailvocate  was  pleased  to  found 
upon  the  oath  of  John  ftlaccoll,  bouman,  who 
defMises,  **  That  Alko  Breck  bad  said  to  him, 
that  the  ttpprehendini^  of  Uie  pannel  and  his 
son  would  not  signity  much  ;  but  express^ 
some  cN>ncern,  lest  Allan  Htewart,  son  to  tbe 
pannel,  might  be  betrayed  by  his  own  tongue.** 
But  as  the  bouman  is  only  here  deposing  to  so 
exi»res9Jon  of  Allan  Breck*s,  when  be  was  en* 
deavouring  to  free  himself  from  suspicion  ;  as 
tlie  bouman  is  at  best  only  a  single  witness ; 
and  as  the  expression  supposed  to  have  been 
ufwl  by  Allan  Breck  does  not  imply,  that 
either  the  pannel,  or  his  bod,  had  been  guittj 
of  the  murder  ;  this  circumstanee,  supposing 
it  true,  ought  not  to  be  regardt^l. 

And  here  1  cannot  omit  putting  you  in  mind 
of  one  circumstance  deposed  by  Alexaoder 
Stewart  the  packman,  which  shews  pretty 
clearly,  that  no  regard  ought  lo  be  had  to  the 
oath  of  the  boum^tu;  and  b<^ides  it  ia  single, 
and  not  supporttid  by  other  rvidencew  The 
packman  de()oses,  **  'fhat  the  bouman  bad  de^ 
sired  him  to  conceal  bis  carrying  the  clothes 
and  money  to  KoatJsnnroan  -,  told  him  that  be 
could  not  nrofc  it  agninst  him ;  and  that  he 
could  safely  depose  he  did  not  d(>liver  the 
clothes  to  him,  since  he  only  pointed  out  where 
they  were.^'  1  leate  to  you,  gentlemen,  to 
judge,  what  credit  oaa  be  given  to  a  whttlwi 
whose  principles  were  such,  as  to  suppose  that 
perjury  might  be  avoided  by  so  poor  an  evasion. 

It  has  been  also  said,  *'  That  the  panners 
wife,  his  two  son^«  and  his  daughter,  have,  in 
some  things,  contradicted  eucli  other,  in  tlia 
d^cl.imtions  made  by  ibem  aereraily  at  Fort* 

'fhtr  pante'  L  help  thinking  it  hard, 

thai  extiAJni  nitiotiB  made  by  his  owo 

family  ahouiii  mnti  iweit  received  as  erid 
uguinst  him ;    more  etpeeiaHy  as  it  has 


239]  25  GEORGE  IL 

bitherCo  held  to  be  an  established  principle  in 
•ar  law,  not  only  thateitrajudicial  declarations 
by  third  parlies  cannot  be  taken,  or  received  as 
evidence  a^nst  any  pannel,  but  also  that  those 
^ho  stand  in  the  relation  of  wife  or  children  lo 
(he  pannel,  cannot  be  received  as  witnesses 
•gainst  him. 

However,  as  these  declarations  have  been  al- 
lowed to  be  read  in  conrt,  though  objected  to 
by  the  counsel  for  the  pannel,  he  must  ac- 
qaiesoe  in  the  judgment  given ;  but,  at  the 
■ame  time,  I  am  fully  persuaded,  that,  upon 
perusing  these  declarations,  the  jury  will  be  of 
opinion,  that  the  differences  (if  there  are  any) 
are  so  trifling,  that  they  can  have  no  weight 
against  the  pannel :  andi  though  it  should  be 
supposed  that  the  wife  or  dau^ter  of  the  pan- 
nel, from  a  mistaken  notion  ot  duty  to  a  parent 
and  husband,  who  had  been  always  indulgent 
to  them,  have  endeavoured  to  conceal  that 
Allan  Breck  went  from  the  pannePs  house  on 
Tuesday  morning,  dressed  in  a  coat  belonging 
to  the  pannel ;  yet,  as  it  has  been  demonstrated, 
it  is  hoped  to  your  conviction,  that  there  is  no 
sort  of  relevancy  in  this  circumstance,  it  can 
have  no  other  effect,  but  to  shew  how  ex- 
tremely improper  it  is,  that  so  near  relations 
should  be  examined  against  any  man  upon 
trial ;  but  can  never  be  used  as  an  argument 
against  the  pannel.  On  the  contrary,  gentle- 
men, I  cannot  help  thinking,  that  these  decla- 
rations afford  a  very  strong  argument  for  the 
pannel ;  for  as  no  less  than  sixteen  different 
declarations  appear  to  have  been  taken  from 
tlie  |iannel  himself,  his  wife,  and  children,  (one 
of  his  sons  having  been  examined  no  less  tban 
five  different  times)  it  is  really  surprising  that 
so  great  a  number  of  declarations,  signed  by 
different  parties,  all  relative  to  the  same  matter, 
should  agree  so  exactly  together ;  and,  as  all  the 
attention  of  the  prosecutor  has  not  been  able  to 
draw  from  these  declarations  any  thing  which 
can  fix  the  most  distant  suspicion  of  guilt 
against  the  pannel,  it  tends  strongly  to  fortify 
the  legal  presnmption  of  bis  innooeuce. 

As  to  the  letter  wrote  by  the  pannel  to  John 
Macfarlane,  referred  to  in  the  libel,  I  am  still 
at  a  loss  to  discover  what  argument  can  be 
drawn  from  it ;  for  as  that  letter  (which  was 
wrote  soon  after  the  murder,  and  before  any 
advertisement  had  been  published  by  the  friends 
of  the  deceased  for  apprehending  Allan  Breck) 
contains  an  exact  descriiitioii  of  Breck's  person 
and  dress,  and  also  of  the  phu;e  where  he  was 
roost  likely  to  be  found,  it  rather  proves  fur, 
than  against  the  pannel ;  and  it  was  but  natural, 
at  this  period,  lor  the  pannel  to  express  an 
anxiety  to  have  Allan  Breck  apprehended ;  as 
it  appears  from  the  proof,  that  before  this  time 
it  was  the  common  report  of  the  country,  that 
the  murder  had  bera  committed  by  AlUn 
Breck ;  and  therefore  it  behoved  naturally  to 
occur  to  the  pannel,  that  tlie  easiest  and  shortest 
wsT  to  obtain  bis  own  liberty,  was  to  find  out 
and  secure  the  person  by  whom  the  murder 
was  supposed  to  nave  been  eommitted. 
The  learned  gentleman  on  tbe  othor  side 


Trial  df  James  Stewart^ 


[S40 


still  insists,  that  it  is  not  proved,  that  any  other 
person,  besides  the  pannel,  had  any  quarrel  or 
resentment  against  the  deceased ;  and  it  has 
been  further  said,  <«  That  if  Allan  Breck  was 
the  actor  in  the  ronrder,  he  was  only  revenging 
the  quarrel  of  the  pannel." 

But  the  weight  of  this  observation  is  fuDy 
taken  off  by  the  evidence  produced  for  the  |nuh 
nel.  It  is  clearly  proved  by  the  depositioos 
of  Angus  Macdooald,  Duncan  Campbell,  Ro- 
bert Stewart,  and  Charles  Stewart,  «<  That 
Allan  Breck  had  sworn  revenge  against 
Glenure,  upon  a  belief,  that  he  h«l  given  in- 
formation against  him  as  a  deserter:*'  And 
though  colonel  Crawfurd  has  deposed,  <*  That 
the  deceased  had  never  given  him  any  such  in- 
formation ;"  yet  this  does  not  at  all  vary  tbe 
argument,  as  it  is  undeniably  proved,  that 
Allan  Breck  still  believed,  that  such  information 
had  been  given,  and  upon  that  account  bore 
deep  resentment  against  the  deceased:  and 
therefore,  supposing  that  the  murder  bad  been 
committed  by  Allan  Breck,  (which  is  not  ad- 
mitted) it  will  not  follow,  that  it  was  done  with 
a  view  to  resent  any  quarrel  the  pannel  might 
have  had  with  the  deceased;  since  it  might 
have  been  done  with  a  wicked  purpose  af 
avenging  his  own  private  quarrel:  and,  at  tbe 
same  time,  it  is  very  proper  to  be  here  observed, 
that  tbe  deceased  had  executed  a  warning,  and 
obtained  a  decreet  of  removing,  against  a  mat 
many  of  the  tenants  of  Ardshiel  and  Locbid; 
and  if  it  is  true,  that  in  that  |>art  of  the  country 
a  step  of  til  is  sort  is  considered  as  a  cause  of 
mortal  hatred,  it  was,  at  least,  as  much  so  ts 
the  tenants  removed,  as  it  could  poasiUy  be  la 
the  pannel :  and  therefore  it  is  wrong  in  tba 
prosecutor  to  say,  that  there  was  no  ottier  per- 
son who  had  any  cause  of  resentment  against 
the  deceased,  but  only  the  pannel ;  whereas  it 
is  plain,  that  every  one  of  the  tenants  who  bad 
been  decerned  to  remove  from  their  respective 
possessions,  had  at  least  as  strong  a  cause  of  re* 
sentment  against  thedeccaseil,  as  that  which  is 
libelled  against  the  paunel ;  and  besides,  I 
might  also  observe,  that  it  is  |)roved,  by  the  de- 
positions of  the  two  last  witnesses  produced 
for  the  jNinnel,  that  one  serjeant  More  Cameron 
(who  in  that  part  of  the  country  is  known  to 
be  of  a  most  abandoned  character)  had  threat- 
ened to  shoot  G tenure,  or  to  be  upsides  with 
him,  in  case  he  should  happen  to  meet  him. 

Upon  the  whole,  gentlemen,  I  flatter  myadf, 
I  have  shewn  to  your  conviction,  that  all  and 
each  of  the  circumstances  proved  against  the 
pannel  are  such,  that  they  can  easily  bear  a 
good  construction,  and  might  have  happened 
naturally,  though  he  had  been  innocent  of  tbe 
crime  laid  to  his  charge :  and  when  to  Ihb  it  is 
added,  that  the  character  of  the  pannel  in  pri- 
vate life,  renders  it  highly  improbable  Uiat 
he  could  have  been  accessary  to  so  vib  • 
crime;  that  he  could  not  possibly  reap  ny 
benefit  by  it ;  and  that  is  proved  by  incontet- 
table  evidence,  that,  at  the  very  time  when  tba 
murder  was  committed,  be  was  anxiously  pnr-, 
•aing  another  measure,  which  was  utterly  in- 


HI]         ^^^^gfififT  MurcUr. 

MtHHt  Willi IteiQfipofition  ofltis  beiti^  any 
WfiePMMiry  to  ibe  murder  ;  I  persuade  my- 
m  IImI  you  will  bt»  ctreful  to  di? est  your- 
•toi  •f  mny  tmpresflitODS  you  may  have  re- 
Mfvd  witboQt  Jours ;  lliat  you  will  judge 
«^lh»  «f  iilence  itniiartially  as  ii  lies  lieforc 
|««|  •ad  Ibftt,  l»|Kiii  the  whole,  you  will  find 
'*"  mil  not  giijUy  of  tbe  crime  laid  Co  his 


A.  D.  11S% 


[243 


^^„  A  lime,  ill  case  yoti  shall  have  any 
_„/  ill  ftmlitig  the  pnniiel  not  g^^illy,  or  in 
I  jta  tbAlt  be  of  opinion,  that  tbt^re  is  a 
^  «f  idevfiQCV  in  any  of  the  circum- 
_i  pmvcd  agtioat  Ibe  paiinel,  il  is  your 
m  rtCuni  a  Special  Verclici*  upon  tbe 


^  A  ■pMJal  renUcI  uiuler  the  Crimtnal  Lblw 

_^d,  li^eIIlt  to  diflfer  efisentially  from  a 

fcrdtct  in  the  Law  of  En^fand.  •  In 

» ft  apcctfll  tenlicl  must  6t\a  facts  aoG 

E  of  facts ;  and  witirre  any  toiitter  is 

miict  submitted  Lo  the  court  for 

kt  point  of  taw,  no  loference  of 

I  on  the  record,  however  strong 

Bof  tiio«e  lacts  may  appear,  can  l>e 

I  hj  Ibe  eourL     The  conclusion  result* 

I  tbe  mrhole  should  be  found  anii  slated 

^nry.    See  Feake's  Law  of  E?ideuce, 

r  tbe  law  in  well  lUted. 

Ifl  Seoilftisd,  the  lefpil  guilt  of  the  fact 

I  tbe  pannel  is  established  by  the 

ttHir  o4'  ret*^vancy  before  remitting  the 

i  #'iili  tbe  hbel  to  the  knowtedg^^e  of  the 

the  ((uettioii  tefl  for  their  conii- 

I  iii^  wbelMr  the  fact  charged  baa  been 

'  ••  A  e|ie<!tal  v«rdiet/*  thy%  Mr.  Bume  (Com- 
■■I ■nits.  Trial  f«tr  Critneti  foL  9,  c.  16*  pp. 
Ml  flMt  vt  v^i  J  "  i«  a  return  of  certaia  tiicts 
w  CMMMMttncd  ai  proved,  without  the  iddi> 
Iff  aay  neitcrai  inference  from  them,  with 
Ibe  pennePs  guilt  of  the  crime  ti- 
ll n  lol^reoce  which  is  left  to  be  made 
f  JiMget  ftcx»rdiaf  to  his  opinion  of  the 
cmpiructiofi  and  cberaeter  of  the  faelt 
Am  In4  before  bim. 

••  it  il  orcieafy  that  the  vertJiet  make  a 
cbir  asd  ftbaotaie  return  of  ceriaio  facht  fti 
ttOl  a.  retum  in  a  dotibtful,  or  tirovi- 
,  er  alternattve  shape,  or  such  as  leaves 
I  svfMrmiiB  matter  of  fact  still  to  be  eu(|utred 
Mi  by  tbe  Court.  For  to  settle  the  whole  fact 
,  Slbe  frroperand  peculiar  province  of  the  jury  ; 
ibtt  done  by  any  other  autho- 
Llf  ibey  eliidi  leave  it  in  any  ways  uncer^ 
Ho^i  BQ  uncertainty  may  arise  in  se< 
I  weyt,  AinI  flni  Ibe  jury  may  report  the 
^  III  meli  »  forai,  ae  to  leave  tt  doubtful, 
*  tbe  criHi*  in  queslian  has  been  com- 
Aebftppeoed  in  the  case  of  An- 
b  vrbnee  trial  for  u^iug  fahe 
iiieaauf«s,  the  jury  found  his 
laud  bii  measures  short,  but  found 
for  ipetufying  the  deifrce  of"  the 
itbctber  en  great  as  to  imply  dole^ 
Mlyi  and  such  as  might  be 
baeriititttfitioQ.    In  like 


facts  proTed  for  and  against  the  pannel ;  and  i 
in  that  case  you  ought  to  he  particularly  care-  1 
ful  to  omit  DO  circumstance  which  mty  bavftj 
tkuy  tendency  to  exculpate  the  paoneL 

Sunday,  ^4  September^  175^,  (betwixt  7  and 
8  o*ctuck  in  tbe  morning*) 

**  The  Lords  ordain  the  Assize  im^tantly  to  | 
iDctose  in  this  place,  aud  to  return  their  Verdict] 
upon  Monday  neit,  the  2ritl»  current,  at  11 1 
o*clock  before  uoon  ;  and  adjourn  tbe  Courl^  [ 
and  hail  diets  thereof,  till  that  time  ;  and  ordain 
the  hail  fifteen  assizers  there  to  attend,  and  tbe 
pannel  to  be  carried  back  to  prison,*' 

tier,  an  alternative  return  of  facts,  may  some* 
times  issue  in  the  acquittal  of  tbe  accused.  ; 
Thus,  in  a  trial  for  sheep-stealing,  tbe  pannel 
cannot  have  judgment  as  a  thief,  if  the  jury  { 
say,  that  ihe  sheep  io  question  were  stolen  of  ' 
had  strayed  ;  bow  full  soever  the  verdict  be  in  I 
liiiding  the  pannePs  poi«esi$iou  of  the  sheep, 
and  other  presumptions  ol'  his  dishouesiy  and  * 
evil  conscience.     Or  again,  ia  a  ca^e  of  rob*  1 
bery*  as  little  is  there  a  good  conviction,  if  tho 
verdict  bear  that  the  pannel  assaulted  A.  B., 
nneaning  to  rob  him,  and  that  io  the  course  of  | 
the  scufHe,  his  pocket-book  f  itht-r  was  CHrried  I 
off  by  the  panne),  or  fell  to  the  ground  and  wds 
k>«t-     And  here,  I  may  refer  to  tbe  trial  of  ^ 
William  and  James  Carruthers  and  others,  tii 
1731.     These  men  were  iudicted  on  a  certain 
statute,  for  deforcing  the  revenue > officers,  as 
also  at  common-law,  for  on  asanutt  and  robbery, 
having  carried  oif  certain  armis  and  other  things, 
belonging  to  the  officers.     Now  as  to  this  ar» 
txcle,  the  jury  *  fand  firoveo  that  the  above  Ho* 

*  bext  Kneall  aud  his  crew,  at   the  time  end 

*  place  libelled,  brou^^ht  iu  some  tire-arms  to 
^  tbe  house  of  the  above  JuUu  Ilitl,  aud  thai 

*  they  were  lost,  or  taken  aw  ay  by  the  foivsaid 

*  mob,"  Hentenee  passed  on  this  verdict,  for 
seven  years  transportation,  in  terms  of  the  sta^ 
tute,  as  on  a  conviction  of  the  deforce  me  ut  only, 
and  nothing  more. 

*^  In  like  manner,  on  an  indictment  of  more 
peraons  than  one  for  the  same  facl*  the  verdict 
!•  faultyf  if  it  find  that  the  thing  was  done  by 
one  or  other  of  them,  and  do  uot  atford  the 
means  of  discerning  which  of  them  was  truly 
tbe  guilty  person.  And  on  this  ground  chiefly, 
aa  f  tuke  it,  proceeded  the  aLnioUitor  io  the 
case  of  Buchanan  and  Lilburn  in  1771,  where 
the  jury  couvicieil  the  panoels  in  the  precise 
terms  of  their  own  confession,  which  was  thus: 

*  That  the  panoels,  irritated  by  the  continued 

*  attacks  of  the  dog,  and  having  each  ol  thera 

*  the  spit  of  a  jack  in  their  bunds,  both  or  either 
^  of  them  in  tbe  fray,  gave  a  istroke  or  stroket 

*  upon  tbe  head  of'^  the  said  Joseph  Alurtme^ 

*  with  the  spits  in  their  hanils,  of  which  stroke 

*  or  strokes,  and  tfie  wounds  thereby  giieii,  tbe 
'  said  Joseph  Martine  died  the  day  tolbwiug, 

*  in  tbe  house  of  the  said  liobert  Andcrrson.*  It 
could  not  be  determines  I  ou  this  verdict,  whe* 
tber  both  pannds  had  struck  Ibe  deceased,  ^r, 

R 


Ur\  25  6E0RGB  IL 

the  paoDel  James  Stewart  Oaihy,  ift  and 
mirt,  of  the  murder  of  Colin  Campbell  of 
Gleiiare.  In  witnesa  whereof,  our  aaid  chan- 
cellor and  clerk  have  aobscribed  these  presents 
in  our  uames,  and  in  our  presence,  place  and 
date  above- written. 

(Signed)      "  Colin  Campbell,  Chan, 
««  Ja.  Campbell,  CI." 

After  readings  this  verdict  the  Court  proceed- 
ed to  i^ve  judgment;  which,  beiae  written 
down  in  the  hm>k,  and  signed  by  the  whole 
judges,  was  read  by  the  clerk,  and  in  the  usual 
manner,  repeated  pronounced  by  the  dempster 
to  the  pannel,  as  follows : 

to  ioclose^l  havioff  been  pronoiinced  by  the 
three  judgpes,  the  lord  Elchies  said  to  the  jury 
words  to  this  purpose, — That  as  they  had  been 
much  fatigued  by  the  extraordinary  length  of 
the  trial ;  and  as  the  case  now  to  be  left  to 
them,  was  of  the  utmost  conse<^uence,  no  less 
than  life  or  death,  it  deserved  their  most  serious 
and  deliberate  consideration:  and  that  therefore 
a:  long  time  (full  twenty-seven  hours)  was 
given  them  to  return  their  verdict  And  his 
lordship  added,  that  he  thought  it  might  be 
very  proper  for  them  to  refresh  themselves 
with  sleep,  before  they  should  proceed  to  con- 
sider the  case,  and  make  out  their  verdict ;  for 
which  he  said,  couches,  &c.  should  be  ordered 
into  the  place  where  they  were  to  be  inclos- 
ed." Upon  which  the  author  of  the  <  Sup- 
plement' remarks,  «*  It  would,  doubtless,  have 
oeeu  commendable  in  the  jury,  if  they  had 
complied  with  this  seasonable  advice  of  the 
lord  Efchies,  considering  that  they  had  now 
been  sitting^  in  court  about  fifty  hours  without 
sleep;  which  as  they  wanted  much,  so  after 
being  refreshed  with  it,  they  might  have  deli- 
berately and  with  their  eyes  open  considered 
the  case  of  the  poor  pannel.  The  jury,  how- 
ever, were  pleased  to  refresh  themselves  only 
with  wine  and  the  like,  and  immediately 
thereafter  to  fall  to  their  business,  with  the 
same  drowsy  noddles ;  in  which  they  made 
such  dispatch,  as  to  have  it  dressed  up  and 
ended  soon  after  eleven  o'clock  of  the  same 
forenoon ;  a  time  shorter  than  four  boars  at 
most. 

<« O  horrid  to  relate  1 

"  About  man's  life  they  d|d  not  hesitate. 

"  In  the  afternoon  of  this  day,  Mr.  Stewart 
younger  of  Ballachelish  meeting  Mr.  Camp- 
bell of  Ederline,  one  of  the  fifteen,  on  the 
street  of  Inverary,  told  him,  that  every  one 
was  surprised  at  tne  dispatch  the  jury  had  made 
in  examining <60  long  a  case;  and  asked  Mr. 
Campbell,  How  it  was  poanble  they  couM  do 
so  much  in  so  short  a  timer  ""  ••  ^  — 
Campbell  answcKd,  We  M« 
nipalory proof:  mIBip^^ 


if  IVwbtehllr. 


Trial  of  James  Stemrif 

«'Thtt  Lord  Justice  Qancirat 
Commissioners  of  Justiciary,  bavinip  cc 
dered  the  verdict  of  assise,  of  date  the  Mth 
current,  according  to  the  present  alile,  rotonM^ 
this  day  against  James  Stewart,  paancl,  wbero* 
by  he  is  found  Guilty,  tfrt  and  part,  of  the 
murder  of  Colin  Campbell  of  Olenure ;  they, 
in  respect  thereof,  by  the  month  of  John  Mm> 
kenzie,  dempster  of  court,  decern  and  odjoigo 
the  sakl  James  Stewart  to  be  carried  hock  to 
the  prison  of  Inverary,  and  therein  to  lymilo 
till  the  5th  day  of  October  next,  acoording  to 
the  present  style ;  and  then  to  be  delivered  mm 
by  the  magistrates  of  Inverary,  and  koepcrif 
the  said  prison,  to  the  sherifT-deputa  of  AnnfB» 
shire,  or  his  substitutes ;  and  to  be  by  mim 
transported  to  the  shire  of  Invemeas,  and  do- 
livered  over  to  the  sheriff-depute  of  Ion 
or  his  substitutes ;  and  to  be  by  them 
ported  to  Fort  William,  and  delivered 
to  the  governor,  deputjr-govemor,  or  oov- 
mander  in  chief,  lor  tlie  time,  of  the  aald  gar- 
risen,  to  be  by  them  committed  to  prison  ia  tht 
said  fort,  therein  to  remain  till  the  7th  day  af 
November  next,  according  to  ihepreaentatjle; 
and  then  again  to  be  delivered  over  to  tho 
sheriff-depute  of  Invemess-sliire,  or  hit  aolili- 
tutea;  and  to  be  by  them  transported  Orwllw 
f^rry  of  Ballaclielish  ;  and  delivered  orw  ti 
the  sheriff- depute  of  Argyllshire,  or  hia  rab> 
stitutes,  to  be  by  them  carried  to  a  gibbtt  to  hi 
erected  by  the  said  sheriff  ou  a  conapiciieoi 
eminence  upon  the  south  side  of,  and  nearti 
the  said  ferry:  and  decern  and  adjudge  the 
said  James  Stewart,  upon  Wednesday  the  8lk 
day  of  November  next,  according  to  tho  pra* 
sent  style,  betwixt  the  hours  of  twelve  at  noiB 
and  two  afternoon,  to  be  hanged  by  the  sack 
upon  the  said  gibbet,  by  the  bands  of  an  exe- 
cutioner, until  he  be  dead ;  and  thereafter  ti 
be  hung  in  chains  upon  the  said  gibbet ;  aol 
ordain  all  his  moveable  goods  and  gear  to  b^ 
es«;heat  and  inbrought  to  his  majesty*! 'oat} 
which  is  pronounced  for  doom. 

(Signed)  "  Argyll. 

"P.Grant. 
*'  Ja.  FEBOiuoif.** 

AiWr  which  the  Lord  Justice- General  apoke  ti 
the  panud  to  the  following  effect:* 

James  Stewart,  yon  have  had  a  very  kmg 
and  most  impartial  trial :  you  have  been  pro- 
secuted with  all  the  moderation  comdatent  wiA 
the  crime  you  stood  accused  of;  and  jroor 
counsel  have  defended  you  with  great  abiii^i 
and  with  decency.  The  jury  have  unaoinooi* 
ly  found  yon  guilty  of  having  been  acumiiy 
to  thia  horrid  murder,  which,  upon  duo  com. 
deratkin  of  all  drcumstancea,  acoma  to  be  ac? 
eordin|;jo  the  evidence. 


proof  agaiofj 


— »  naHMl,iBea  aiiffiyt9le.3 
MUMthoMliti  miM 


J^  Murdtf* 

It  make  yM<  ,  how 

Di  !■  of  wltieh  )ou  uUud  cnii- 
!  tod  moH  intamfius  iinircler  eiiiJ 
»ii«  tn  tl^Cittoce  of  the  laws  of  Gofl 
>  sjt^  Ibt  cuinmon  |)nnctp1es  of  buma- 
\  Iflmitidd  oi^eeircmnsliince  mote,  which 
I  ycm?  guih  |  ami  ihat  i:j^  your  iogra- 
Iki  tlial  gsolLcinani  who^  by  your  means, 
A*  ii»Of«*     Yon  tiari,  by  your  artilices, 
»  kift  oon^QOcTt  tit  tore  he  had  time  to 
I  Mfbnueii  of  ihc  circumatanues  of  the 
iifwiuoh  lie  wa«  appomted  steward.   This 
you  tbused  Bt>  mucbf  as  to  raise 
v^wanmmy  from  the  tenants  for  yoar  own 
I :  but  whi'u,  in  obedience  to  the  orders 
mpomrs,  he  was  removing  you  and  others 
hm  Hxwm  they  t)id  possess,  then,  accord* 
tiM  oialioe  at  way  t  pre?  ailing  in  unctTi- 
ifttUef  tli«  Highlands,  voiir  inveterate 
I :  ao  that  it  may  he  said  of  you, 
jm  taA  e«t  his  bread,  and  then  abed  his 

r  y«dr  crime  from  its  true  original 
rdl  uae  the  words  of  our  tlatute*bcHik, 

iwtJD't  f 'I  '-^;  and  lawless  opprfis- 

fcmd  i  Mauds  during*  several 

'7**'-  ,.  liie  laws  made  so  loncf 

r,  and  iiifurced  in    16'J0, 
i._     .        '  thecliiis  w^relKiuud  to  dc- 
^f«r  timtai^,  as  securities  for  the  peace,  who 
I  even  to  li€  put  tn  drath,  if  no  redrew  was 
To  tht«  '  !d  that  obntifjate  and 

titicyr«l>U  inand  a>ersioiU<»  the 

I  in  levckiil  Hi^fhland  c)an«i,  and  in 
'  jour  own,  errr  More  the  happy  Ke- 
^  eod  the  establish  meat  of  the  crown  Jo 
4t  Fr»l«9taiit  line, 

Ittibe  yiear  lTir>,  there  broke  out  a  mr»9t 
Wivf^l  and  uoprovoked  rebeUion,  soon  after 
^  aacmkia  of  bis  late  majesty  to  the  throne ; 
•  «liiii  tli«  pari  your  clan  acted  is  well 
>B0m^m  niAiiy  hetM^  i^- -^  '>i*esenl  tliut  were 
of  their  cu  ^axI  of  «h(»  rd>el 

1  .  a.     This  I  mj- 
A  royal  indemnity 
FaBfybii»ed  uv  o  Ireaaoos  thi^n  com* 

but,  in  the  year  1719,  your  clan,  un- 
mI  of  Ui«ir  hves  and  fortunes  havinjv  bteu 
k  only  two  year*  before,  did  og^ain 
y  aitd  affiiMted  a  forri^  enemy 
V  MU  are  saiu  to  have 
ii  time  very  \oun^« 
iiR'  jcMless  spirita  of  the 
<Tt  again  pron^pted  them 
''    r      -     "i   ^.   you  and 


»aiiJi** 


)««  cbifi 

it  impious 

iimcf  - 

.^i  *t-i^.i  to  the  last. 

IW! 

lirsi  permitted  you 
v^hirb  has  posijibly 

nail 

bo» 

of  your  crimen. 

Mf 

<eu  of  the  Al- 

V;  "^^  ** 

d   Up  a   great 

^■^tb'-'ccin 

Ktnij,  who,  with 

K 

^  and  with 

B 

^  one  blow, 

pii  tad  to  aU  yoorn  )• 

l^»  1  ^IcmpUf. 

A.  D.  17J^  [359 

If  f9U  bad  lieeti  successful  in  that  rttbellknt, 
you  bad  been  now  tj'iumphant  with  your  con* 
tcdemtcs,  tramprnig*  upon  the  laws  of  your 
country,  the  liberties  of  your  fellow*siibjcctSy 
and  OD  the  Protestant  religion :  you  mi^ht  bare 
been  g^if log  tbe  law,  where  you  now  have  re* 
ceived  the  judgment  of  it ;  and  we,  who  are 
this  day  your  judp^es,  might  have  been  tried 
before  one  of  your  mock  courts  ot*  judicature, 
and  then  you  might  bare  been  satiateil  wtib 
the  blood  of  any  name  or  clan  to  which  you 
bad  an  cTeriion. 

I  have  thoug-bt  it  my  duty  to  pot  you  in 
mlud  of  these  (acts,  only  to  mark  out  thoM 
wicked  paths  which  have  led  you  to  dettme-* 
tioo  :  and  though  you  dou't  now  stand  accused 
as  a  rebel  I  nor  am  I  permitted  to  call  yo4i  a 
traitor*  because  bis  majesty's  undeserved 
mercy  to  you  did  several  years  ago  restore  you 
to  the  state  of  an  Innocent  man  ;  yet  1  may 
say,  with  great  force  of  truth,  that  this  murder 
iiafi  been  visibly  tbe  effect  and  consequence  of 
tbe  late  relietbon. 

Vou  may  yet,  during"  the  short  time  yo« 
have  to  liie,  be  of  great  service  to  your  friends 
and  neighbaui^,  by  warning  them  against  thoM 
principles  and  practices  which  have  broui|^ 
YOU  to  this  untimely  end  ;  and  may  the  Lofi 
nave  mercy  upon  your  soul  \^ 

Immediately  after  sentence  of  death  had 
passed  upon  James  Stewart,  and  tlie  Lord 
Justice -Gene  rat  had   ended    hi)   speech,   tbe 

panuel  said^ 

*•  My  lords,  1  t^imi  ly  submit  !f)  iliy  bard  sen- 
tence, 1  forgive*  the  jury,  and  the  witnesses, 
who  have  s^woru  several  things  falsely  ajfaiuat 
me :  and  I  declare,  before  the  great  Uod,  and 
this  asditory,  that  I  bad  no  previous  knowledge 
of  the  murder  of  Colin  Campbell  of  Glen  ore, 
and  am  aa  innocent  of  it  as  a  chikl  unborn.  I 
am  not  afraid  to  die ;  but  what  grieves  me,  is 
my  eh (j^racter,  that  after- acres  should  think  me 
capable|of  such  a  horrid  and  barbarous  mnidert** 

ThereaAer  the  pan n el  was  ordered  back  to 
prison,  and  executed  according  to  his  sentctica; 
and  the  morning  before  be  went  to  execulioQi 
he  declared  to  the  sheriff  his  ionoceoco  of  the 
tact  for  which  he  was  convicted  ;  and  did  tho 
same  at  the  gallows,  with  many  protest atiooi 
of  ilia  innocence,  calling  God  to  witoeas  thd 
truth  of  what  be  deiilared. 


Of  this  case  Aniot^  in  bis  Collection  of  Cn* 
ntinal  Trials,  has  inserted  an  abstract^  to  which 
he  has  subjoined  tbe  following  observations  : 

**  The  guilt  charged  a£:ainst  tlie  pannel  is, 
that  he  was  accessory  to,  and  art  and  part  in 

♦  Wh""  ihp  sentence  was  pronoanced 
agamRl  J  ^^art  at  Inverary,  tbe  ^ntle^o 

menwih  i  the  trial  tbe  preceding  dayf« 

having  been  ail  lircd  with  il»  did  not  lake  notes 
tbe  last  day :  but,  as  far  as  tbef  cau  recollect, 
the  sub««tance  of  what  tbe  Lord  Justioe-Geotr^ 
then  said  to  the  panne),  was  M  is  tbove  ^ 
down.     Fifrm€r  Edithn, 


S51]  '25  GEORGE  IL 

conspiring  the  murder  of  Glenore,  which  was 
perpetrated  by  Allan  Breck  Stewart.  There- 
tore,  if  there  be  not  legal  e? idence  that  Allan 
Breck  was  the  murdvrer,  the  charge  of  guilt 
▼anishes,  and  it  becomes  perfectly  unnecessary 
to  consider  the  second  proposition,  viz.  the  pn- 
soneKs  accession  to  the  murder  alleged  to  have 
been  committed  by  Allan  Breck. 

'*  The  only  positive  evidence  relative  to  the 
perpetrator  of  this  murder,  is,  that  it  was  com- 
mitted by  *  a  man  with  a  short  dark  coloured 
*  coat,'  and  this  is,  in  some  respect,  applicable 
to  Allan  Breck,  as  be  was  seen  on  the  day  of 
the  murder,  not  far  from  the  place  where  it 
was  committed,  dressed  in  a  dun  coloured  great 
coat,  and  dark  short  coat.  Allan  Breck  did 
frequently  use  threatening  expressions  against 
the  deceased,  and  he  did  display  the  most  in- 
dubitable signs  of  tear  and  guilt.  But  it  is  cer- 
tain that  his  guilt,  as  a  deserter,  whs  heighten- 
ed by  his  having  been  in  the  rebellion,  and 
that  bis  life  was  thus  forfeited  to  his  country  ; 
and  the  reader  must  determine  with  himself 
whether  Allan  Breck's  fear  of  being  apnre- 
kended  proceeded  from  the  desertion,  of  which 
he  was  notoriously  guilty  ;  or  from  this  recent 
murder,  of  which,  even  mdcpendent  of  guilt, 
he  had  reason  to  conclude  he  would  be  sus- 
pected, on  account  of  his  connection  with  the 
family  of  Ardshiel,  and  of  his  fugitive  and  wan- 
dering life. 

"  The  circumstances  from  which  the  prose- 
cutors inferred  the  prisoner's  accession  to  this 
murder,  may  perhaps  lie  6t  enough  to  excite  a 
suspicion  of  guilt  in  the  speculations  of  the 
closet,  but  I  apprehend  them  to  be  in  the  high- 
est degree  improper  and  dangerous,  to  be  pro- 
duced as  evidence  to  affect  the  life  or  fortune 
of  m  prisoner  in  the  tribunal  of  justice. 
)  <*  The  circumstances  were  shortly  these :  that 
Allan  Breck,  a  kinsman  of  the  pnsoners,  paid 
him  a  visit  three  days  preceding  the  murder, 
sat  with  him  and  other  company  at  supper, 
and  slept  in  a  bam :  that  Allan  Breck  put  off 
his  French  clothes,  dressed  himself  in  a  short 
coat  belonging  to  the  prisoner,  or  his  son,  ere 
he  went  to  work  in  a  field  of  potatoes ;  and 
next  morning,  when  he  lefl  the  house,  went 
off  dressed  in  the  short  clothes,  and  let\  his 
own  ;  which,  by  the  bye,  he  had  done  upon 
former  occasions :  that  the  prisoner,  upon  the 
search  which  was  to  be  made  for  the  murderer 
of  Glenure,  supplied  with  money,  for  the  pur- 
pose of  making  an  escape,  his  kinsman,  Allan 
Breck, a  fugitive, and  a  deserter:  that  the  guns 
about  the  prisoner's  house  were  hid,  in  a  coun* 
try  where  it  was  a  crime  to  be  possessed  of 
arms :  that  the  prisoner  had  used  repeated  ex- 
pressions of  resentment  and  of  'vengeance 
against  Glenure ;  and  that,  after  the  murder, 
Allan  Breck  expressed  his  apprehension  lest 
the  prisoner  or  his  son  should  be  betrayed  by 
their  own  tongue. 

**  These  are  ttie  amount  of  the  evidence  against 
the  prisoner,  which  resulted  from  a  scrutiny, 
by  no  means  warrantable,  into  his  life  and  con- 
duct. The  rigorous  durance  in  which  he  him- 
self was  conQncdy  and  his  son  and  servants  being 


Trial  of  James  Siewart, 


\93l 


kept  close  prisonen  in  separate  ■partments, 
have  been  already  mentiooed.  His  repositories 
were  thrice  searched  by  the  prosecutors  rela- 
tions without  legal  warrant,  and  attended  by  a 
military  force :  and  every  circumstance  of  his 
life  and  conversation,  for  a  period  of  two  voan, 
was  raked  into  with  the  most  invidious  industry. 
But  this  last  mode  of  extraotiuj^  evidence,  and 
the  result  which  flowed  from  it,  require  to  bt 
particularly  considered. 

*'  Where  there  is  no  positive  evidence  de- 
monstrating the  author  of  a  mischief  which  so 
individual  has  sustained,  menacing  ezpressioM 
may  be  justly  admitted,  along  with  other  cir- 
cumstances, as  a  link  of  the  chain  of  circan- 
stantial  evidence  a:|;ainst  a  prisoner.  But,  to 
lay  much  stress  upon  general  expresskms  of 
resentment,  and  even  of  vengeance,  such  as, 

*  I  wish  he  were  hanged ;'  *  he  is  unworthy  to 

*  live;'  '  I  will  cause  him  to  repent  it,'  or  the 
like,  would  lead  to  a  conclusion  equally  false 
and  fatal.  In  social  intercourse,  the  energy  of 
our  (expressions  of  applause  or  of  censure,  of 
gratitude  or  of  resentment,  is  often  proportioned 
to  the  strength  rather  of  our  language  than  of 
our  feelings.  But,  if  a  deep  and  mortal 
he  meditated,  I  apprehend  the  deviser,  in 
of  suiting  his  expressions  to  his  purpose,  v 
endeavour,  by  the  smiles  of  his  countenance, 
and  the  smoothness  of  his  language,  to  conceal 
the  rancour  of  his  heart. 

**  Let  any  person  who  has  laboured  under 
embarrassed  circumstances,  who  has  felt  ibr 
the  distress,  for  the  impending  ruin  of  his  ft- 
mily';  «»lio  has  been  chastised  by  the  rod  of 
power,  reflect  upon  the  expressions  of  resenl- 
ment  and  of  anguish  which  may  have  escaped 
him  when  his  heart  was  open  to  a  friend,  wlica 
his  passions  were  inflamed  by  liquor;  and 
then  let  him  condemn  (if  he  can)  the  prisoner 
as  a  murderer,  on  account  of  the  expressions  of 
vengeance  which  arc  proved  against  him  in  tht 
course  of  this  Trial. 

**  The  only  part  of  the  evidence  affecting  the 
prisoner  which  makes  a  serious  impremoo 
upon  me,  is  what  fell  from  Allan  Breck  in  tbo 
wfK)d  of  Koalisnacoan,  that  he  was  afraid  lest 
the  prisoner's  son  *  might  be  betrayed  bv  bis 
own  tongue.'  *    The  following  reasons,  how- 


*  *'  Unless  that  rule  in  the  scriptures,  of  visit- 
ing the  sins  of  the  father  upon  the  children,  is 
to  he  inverted  by  our  law,  and  the  sins  of  tbo 
children  are  to  be  visited  upon  the  father,  I 
•entertain  a  faint  suspicion  that  a  mistake  has 
been  committed  in  the  course  of  this  Trial,  mod 
that  (if  any  of  the  family  was  guilty)  the  pri- 
soner has  been  hanged  instead  of  his  son  Allan. 
The  circumstances  of  the  little  gun  in  the  de- 
positions of  DugalJ  and  John  Beg  Maccolls, 
and  Allan  Breck's  fear  lest  the  prisoner's  son's 
tongue  should  btrtiny  him,  afford  a  more  point« 
ed  evidence  against  the  son  than  any  which  it 
adduced  against  the  father.  Besides,  it  ii 
worthy  of  remark,  that  the  prisoner's  son  bad  a 
coat  precisely  of  the  same  make  and  ookNir 
with  that  which  Allan  Breck  wore  on  tht  day 
Glenure  was  murdered."    Arnot. 


f(ir  Murder, 

»  doubt  llie  saleCy  ftiid  propriety 

I  •»  ej|(ff^%ioti  bL  this  1  lie  t'sutt* 

Dg  flwuy  the  life  aru!  fa  me  of  a 

The  %vilne!is  who  <Je|i«sed  lo  ii 

lirfpr  llie  ruil  uf  power ;  he  had  been 

c!o!(e  cuMody  in  Fori  Wtlham,  aod 

railed  that    he    himiielf  might  be 

Iriiil  for  thiii  murder.      2do,  The 

an  IVoiij  Allan  Bre<;k*8  exprea- 

Igr  fioin  miscortceptioii,  or  want 

fi'  )  from  the  mistake 

itcd  the  eFidenoe, 

In  uj'iifji  j;»r>i  (iaiereoce  in  ihe  coii* 

|l>r  tlrawo  rriMii  Alhtn  Brc^rk^a  words* 

,  if  AUan  Breck,  instead  of  laying 

tJbe   prisoner's  son  *  might   be 

\%y  Ilia  own  (on^uc/  did  stiy^  lie  wa« 

Einer'a  son  *  might  Hill  a\ictiio  to 

lie  ;*    ill  this  case,   Allan    Breck 

aid  no  more  than  >%httt  was  nolo- 

i_»Dil   true,  viz.  that  tJte  resentful 

~^        by  the  prisoner  and  hia  son 

!  would  hear  hard  upon  them, 

I,  upon  the  Mbole,  i^KiiaU^  out  the 

two  aUerntions  being:  adopted  in 

al   (aw  of  Scotland  :  Imo,  That  the 

jliould   here,  aa  in   £nj;tand«  have  a 

Dging  a  certain  numljer  of  llie 

|]gned«     2do,  I'hai,  in 

lof  Scotland,  where  the  di^trict« 

tribes  or  clans,  between  many 

ale  feuds  did  subsist,  a  prisoner 

I  in  bis  power  to  say,  ^  I  who  am 

"*  not  be  tried  by  a  jury  of  Camp- 

\  CDunler  of  a  Campbell  ;*  or,  *  I 

IBccr  of  e&cise^  will  not  be  tried 

sorfier  of  a  stimg^ler,  to  a  country 

it  Itiv  merchants^   fanners,  ^c.  are 

And,  OS  the  lawyers  for  the 

'  it  til  Ibeir  power  to  bring  a  prisoner 

liltaCricI  where  he  lite^*  or  where  a 

[ftiettn  committed^  to  stand  trial  before 

V  at  £dinhnri;h|  so 

ive  it  JO  his  power 

^pfrjimittH  wtiicb  may  he  enter- 

lliai  to  a  iiarttcuUr  distiicl«  and  to 

1^  tried  at  bdinburgb.^' 


A.  a  1752. 


[251 


Ho  wing  paasag«a  are  extracted  from 
a^fikflBCfil    (o    the  Trial  of  James 

happy  periodi  until  the  fatal 

.  James  Hte wart  beliavfd,  in 

,  &a  like  a  good  Cbri^tian^  that  liia 

1  were  forced  to  commend  him, 

*ij  him,  bur  the  thoughts  of 

kind  wife,  with  a  pretty  nu- 

|r«  not  provided  for  ;*  and  a  rea- 

for  his  awn  character,  because 

ignomitiJous  manner  of  his 

)  altrgeii  eau«e  given  fur  it.     To 

'  Niiirrrt:4|/»,  six  year* ago,  had  left 
Mate;  a^id  tb«  ejtpeooe  of  ihU  trial 
lallliejsaii  aciiiurrd  siaoeJ'    jiJuppU 


die,  he  said,  on  a  gallows,  for  having  actal  a 
part  in  an  assassination,  was,  he  lielieved,  what 
few  lh;jl  knew  bim  could  iver  have  thought 
was  to  be  his  end.  This  he  regrettrd  at  firti 
to  bis  1i  lends  who  came  to  see  him  in  his  con^ 
demned  ii^tate ;  but  atier  being  assured  by  tW 
gentlemen  who  hail  been  lits  counsel,  that  they 
hnd  k\\  kept  notes  of  their  pleadings,  in  ordet* 
io  the  pulilishinij;  bis  trial,  be  became  quite  sa- 
liaOed  and  easy  m  bis  mind.     *  If  that  shall  be 

*  dt>ne»  (said  be),  ihe  world  wilt  have  an  op- 
'  portuiiiiy  of  seeing  nud  judging  oi'  my  sharft 

*  in  the  murder,  a  crime  I  ever  abiiorred,  and 

*  the  jtistice  done  me  in  the  tria!.*  Ru  ipim 
nunc  hquitur.  At  bit  receiving  the  holy  sa^ 
ciameni,  from  the  bands  of  a  worthy  clergy « 
man,  the  necessity  of  cod  Cession  and  repent* 
ance  was  strongly  set  forth  to  him,  and  the  ques- 
tion then  put,  *  Are  you  guilty  of  the  murder 
'of  Gleuuref*  He  answered,  in  a  mosl 
solemn  manner,  *  1  am  not  guilty  of  it,  even  in 

*  the  smallest  degree;  If  J  be,  may  this  which 
^  1  am  ttbuut  to  do,  tend  io  my  eternal  d;imna* 

*  lion  !*  In  a  word,  he  gained  the  esteem  ami 
reigard  of  every  body  ;  and  his  military  guard 
admired  and  pitied  him  so  much,  that  many  of 
Ibem  shed  tears  at  his  death;  thereby  con- 
viucing  me,  that  tlieir  hearts  are  not  so  caMoiDi 
as  is  commonly  thought.  1  appeal  to  them*. 
selves  if  this  be  not  true.  But  let  the  dyinif 
man  first  speak  Ibr  himself,  when  come  to  the 
last  period  of  his  hfe.  The  hour  of  death,  you 
knovr,  is  the  hour  of  truth !'' 

The  DviNG  Speecu  of  James  Stewart. 

My  dear  countrymen  ;  The  several  mottrea 
that  induced  me  to  offer  the  world  a  narrative 
of  my  uDcommoo  misfortunes,  are  as  follows: 

Fii^t  of  all,  My  itinoceoce  makes  my  suf* 
feringa  easy,  and  alletiates  all  afflictions,  be 
they  never  so  severe  in  the  eyes  of  man. 

Secondly,  That  my  silence  upon  thia  ooca* 
sioD  might  uot  be  constructed  to  my  prejudice 
by  my  prosecutors ;  as  my  silence  at  the  bar, 
when  i  was  hearing  some  of  the  evidences  aver 
untruths  against  me,  was  said  to  have  pro- 
ceeded from  conviction  of  guilt,  and  that  if  [ 
should  challenge  them,  they  wouUt  say  more 
than  they  did. 

Thirdly,  In  order  to  let  the  world  know  the 
liardships  put  upon  me  since  my  coaiinemdnta 
contrary  to  the  known  laws  of  this  nation ; 
which  effectually  disabled  me  from  maktug 
many  defences  1  otherwise  might  proiJuce, 

Fourthly,  That  it  came  to  my  ears  my  pro- 
secutors had  spread  a  false  report,  that  1  made 
a  confession  of  that  crime  when  in  Inverary 
gaol  after  receiving  my  ban  I  sentence. 

Fifthly,  That  I  might  offer  my  public  advice 
to  my  friends  and  relations  u|>oa  this  uielatt^j 
clioly  occasion.  \ 

These  are  tfie  chief  reasons  for  the  followrtn^  ^ 
narration  of   facts ;    which    1   hope  lo   make 
appear  so  clear,  as  will  convince  the  unpre*  1 
jvidieed  pari  of  mankind  how  much  1  am  iii« 
jured,  and  that  I  die,  as  I  endeavoured  to  live, 
an  bouest  man. 


£53] 


25  GEORGE  II. 


Trial  qf  James  Stewart, 


[9S6 


As  to  the  lirtt  article,  of  my  beine  art  and 
|»art,  accessory  to  Glenore's  murder,  I  poii- 
tiveiy  flea y,  directly  or  indirectly ;  nor  do  I 
ktiow  who  was  the  actor,  further  than  my  sus- 
f  icioa  of  Allan  Breck  Stewart,  founded  ufion 
drcumsiances  that  have  caet  tip  since  the 
murder  happened:  and  I  do  declare,  that  it 
was  not  from  any  conviction  of  his  being  guilty 
of  that  crime  I  sent  him  money  to  carry  him 
oiTthe  country  ;  but  out  of  charity  and  friend- 
ship J  had  for  him,  not  only  as  a  relation,  hut 
likewise  w  a  pupil  left  to  my  charge  by  his 
lather ;  and  as  a  person  who  kept  close  by  my 
brother  in  his  greatest  distress,  when  lurking, 
before  he  got  off  the  country ;  and  that  I  knew 
he  was  a  deserter,  so  durst  not  stand  a  precog- 
nition. I  also  declare,  it  was  without  my 
Icnowledge  he  carried  any  part  of  my  cloth^ 
with  htm,  from  my  house,  upon  the  Tuesday 
before  the  murder.  Nor  did  I  know  where  he 
was,  or  where  he  had  gone  to  from  that  time, 
until  Donald  Stewart,  nephew  to  Ballachelish, 
came  to  me  Friday  after  that  unlucky  action 
happened,  and  told  Allan  Breck  was  at  Koalis- 
naooan,  and  hegjged  I  might  send  him  some 
money  to  help  him  off  the  country,  as  he  durst 
not  appear  publicly,  fbr  fear  of  being  secured 
for  the  above  reason  of  his  being  a  deserter ; 
and  the  said  Donald  Stewart  toM  me,  that 
Allan  Breck  assured  him  he  had  no  hand  in 
the  murder. 

I  likewise  declare,  tliough  it  is  set  forth  in 
my  indictment  that  Allan  Breck  frequented  my 
house  and  company  most  of  any  place  since  he 
came  to  the  country  in  March  last,  that  1  did 
not  see  him  but  thrice  from  his  commg  till  he 
went  away  from  the  country.  The  first  time 
was,  two  nights  before  I  went  to  Edinburgh 
in  the  beginning  of  April  last.  The  next  or 
tecond  time  was  about  eight  days  afWr  my 
return  from  Edinburgh,  which  was  about  the 
last  days  of  April,  as  I  best  remember,  when 
he  stayed  but  one  night  that  I  was  at  home. 
The  third  and  last  time  was  upon  the  Monday 
before  Glenure*s  murder,  that  he  came  to  my 
bouse  about  one  of  the  clock  after  noon,  and 
Stayed  that  night ;  and  the  next  morning  I  went 
from  home,  whiob  was  Tuesday,  before  he  was 
out  of  bed:  nor  did  I  see  him  that  day,  or 
tince.  Nor  can  I  remember  Glenure's  name 
was  spoke  of  in  his  company  either  of  the  two 
last  times,  unless  it  was  he  that  told  me 
Glenure  was  gone  forLochaber  upon  the  Mon- 
day ;  as  to  wnich  I  cannot  be  positive ;  but  I 
am  very  sure  there  was  no  word  of  destroy- 
ing him  in  any  way  spoke  of.  The  first  time 
he  must  have  heard  me  talk  of  Glenure,  as 
I  told  him  I  was  going  to  give  in  a  memorial 
tor  the  tenants  to  the  barons  of  exchequer. 

It  is  also  set  forth  in  my  indictment,  that  it 
was  of  my  own  accord,  and  not  at  the  desire 
of  the  tenants,  I  went  to  make  application  for 
them  in  law.  I  do  declare  it  was  their  desire 
that  all  lawful  ways  should  be  taken  to  keep 
them  in  possession ;  and  do  assure  myself  ibat 
nothing  obliged  them  to  lefuse  that,  but  fear 
and  ignorance ;  belief  ing,  that  if  they  ihoold 


own  it,  they  would  be  made  priseners ;  as  all 
the  poor  people  were  put  in  such  a  terror  by  a 
military  force  kept  in  different  parts  of  the 
country,  that  they,  I  mean  the  poor  country- 
people,  would  say  whatever  they  thought 
pleased  my  prosecutors  best. 

1  declare  what  John  Dow  Breck  MacooH, 
bouman  in  Koalisnacean,  deponed  in  regard  to 
my  coming  to  Glenure's  window,  was  ialso ; 
and  that  at  the  time  he  condescended  on  I 
should  have  said  so,  being  two  years  ago,  I 
was  in  very  good  friendship  with  GleoniOi 
which  his  letters  to  me  about  that  time  testify. 

Ah  to  the  story  John  More  Maocoll,  Dougal 
Maocoll,  and  John  Beg  Alaccoll,  my  servanli 
told,  they  beard  me  say  in  my  brew-boose^ 
that  if  Glenure  did  live  five  years,  he  would  be 
laird  of  Appin  ;  and  that  I  saw  people  in  Appfai 
that  would  not  allow  Glenure  to  go  on  at  such 
a  rate ;  this  I  do  not  remember.  Bat  this  I 
can  safely  say,  tliat  John  Beg  Maccoll  came 
into  the  gaol  at  Inverary  to  see  me,  next  day 
after  my  sentence  was  passed,  crying  and 
tearing  as  if  be  wa^  half- mad,  and  told  me, 
that  the  night  Dougal  Maccoll  and  he  bimodf 
were  on  their  way  to  Inverary,  at  the  strath  ef 
Appin,  Ewan  Roy  Maccoll,  poriioner  of  Glas^ 
drim,  and  the  said  John  More  Maccoll  brought 
two  bottles  of  aquavitse  into  the  bam  where 
they  were  confined,  and  wrougrht  upon  theni 
to  make  up  that  story;  and  made  them.twliefe 
that  it  could  not  hurt  me,  and  would  gain  them 
friendship  at  Barcaldiue's  hand.  I  truly  be- 
lieve, though  it  were  truth,  that  it  coold  net 
hurt  any  other  person,  though  any  thing  was 
proof  enough  against  a  man  so  ill  looked  upon 
aa  I  seemed  to  be. 

Alexander  Stewart,  packman,  deponed  wt^ 
Teral  falshoods ;  partieulariy  in  regard  of  the 
five  guineas  he  aaid  I  desire<l  him  to  tell  Wil* 
Uam  Stewart  mercliaut  in  Mary  burgh,  to  give 
John  Dow  Breck  credit  in,  for  Allan  Brtck's 
use;  and  his  saying  I  desired  him  to  get  only 
4/.  sterling  from  William  Stewart,  fur  paying 
milk-cows  bought  fbr  his  use  at  Ardshiel ; 
whereas  he  was  only  desired  to  get  8/.  sterling 
fbr  paying  these  cows,  as  they  in  truth  were 
bought  for  William  Stewart's  use. 

I  declare  the  reason  why  I  did  not  challenge 
them  at  the  bar  was,,  that  my  lawyers  desired 
me,  though  1  heard  a  witness  swear  falsely, 
not  to  sfteak,  otherwise  I  should  be  worse 
looked  u|>on  :  so  that  I  hope  the  uubiassed  will 
believe  that  my  silence  did  not  proceed  from 
fear,  as  alledged  by  my  enenues ;  but  in  obe* 
dieuce  to  the  advice  given  me  by  my  counsel, 
which  I  waa  determined  to  follow  whatevor 
should  happen. 

That  tliere  were  plenty  of  bribes  or  rewards 
offered  to  severals,  I  am  well  assured.  Perti* 
colariy,  Donald  Ranken,  herd  to  Ballachelisfa, 
a  young  hoy,  was  offered  eii^hteen  hundred 
merks  ;  which  are  his  own  words:  but  he  WM 
kept  close  prisoner  at  Inverary,  so  that  nooo  of 
my  friends  had  access  to  put  any  questions'  to 
him.  John  Maccombich,  lata  mdler  in  IM 
of  Ardahkli  waa  ofiend  his  fonttcr  poo* 


fno^  Murder* 

\  ^CIIm  fbillf  fur  lelttflg  nny  thing  vroulil 
r  ibtir  liir«.  Duncan  Muceombich  and 
iUcooll«  both  III  L4i{^naha,  were  of- 
Ifcml  u  ifiucli  meftl  ai  thrjr  pleased  to  cnH  for 
aiPtfl-Wiltittiii,  if  th<?y  woulil  make  any  ilis- 
€t>frie4.  1  tiow  letive  itie  world  to  jndf^e, 
utatliBiice  II  inaii  Iih<I  fur  his  liCt*,  whtn  sucb 
Iwibaf  wre  oflTeird  to  p*ior,  ii»uoraHt  country* 

Kf  mt  wtiAt  assurance  can  any  man  have 
iH  bnlies  prpvaiiej  with  some  of  Iho'fc 
vliMmafceuaibP 

Ailir  1I10  miciHnmon  harilhhi|>s  put  upon  me 
Mrfer  mj  eaufioemeut,  thi^y  were  many  ;  »uch 
at,  banif  Imkem  into  custody  without  any  writ- 
Its  w«irstil^  iiririn  ilir  i6th  day  of  May  last; 
^agfwti  thr*»ui:  M  Fot  t-\Vil)iam,  where  1 

ins  fc<|i€  ctir«^  ,  -  notanowed  to  see  any 

a^mj  CnEn4i«  or  any  that  couhl  give  mcconn* 
ael,  tfiiitk  aluHil  the  20tb  of  June,  there  came  a 
UtlvrCrwni  Mr.  IVilhaiit  HiIrou,  directed  to  my 
wlfk,  villi  liir  act  of  parliament  dischart^ing 
9§mm  i■^praaaalent  louger  than  eight  days; 
»ll^,  wfcca  th^wn  to  colonel  Craw  Turd,  who 
tlUi  osnttfttiiletl  the  Kirt  and  troops,  he  al- 
Jbired  my  wife  and  sotue  others  to  see  me: 
^WMiU  ftnt  allow  snch  nsi  1  thought  could 
wmi  nse  to  rne  to  come  near  me  ;  parli- 
If.  w,...^..,  ....^-v^f^rof  Ballachelish» 
f  cait  '■  vices  to  me,  would 

latbtf  ad,. '..  ,    I  . .     .    -'I  Charles  Stewart 

r,  nr  H  ilham  8tettart  merchant  in  ililary* 
gt*l  any  admitiauce.  In  t»hort,  any 
«lio  mmH  Im  iupiK>«<i'd  to  be  of  auy  (ierrice  to 
tm  is  Hiakio^  my  dt-fvnceii,  were  not  perniilted 
IBM  la  na.  1  do  not  impute  this  usage  to 
oIhkI  Crawfurd,  for  whom  1  retain  a  very 

0«ai  rf^r**^*  ^0^  ^^^  *1^*1  "^'  ^'^"^  humanity^ 
Ll  \t9  tm€  gut  a  very  bad  im(>re«isioti  of  Tt'ie 
b  .  ed  prosecutors.     And   when 

fv  Fort- William  some  time  in 

Iwi^^tTiniiii;  ot  July,  »he  new  governor  would 
i^iaD9  to  cQtue  aesr  me,  luru^l  tny  wife 
ttlOiinMil  the  fort,  and  dist  hartred  her  to  stay 
■  Miiybvirgb.  And  in  that  close  situation 
ii^flaftf  itotil  my  indictment  came  to  band 
ll«ttdie  latter  end  of  August ;  su  had  no  way 
ilBiAbi  ii|i  my  defences;  nor  dur^t  auy  of  my 
thcDds  in  ibc  country  offer  to  do  for  me, 
sllisrwbA  would  he  laiil  up  prisouers ;  and 
^tm  vlio  1  expected  liad  inoRt  to  say  for  my 
Aial|HUiOtt«  were  taken  prisuneni,  and  kept 
dtot  lilt  my  that,  to  had  not  access  to  put  any 
fMttiaiM  III  ibom,*  by  wliich  they  were  not 
nady  liiiiiake  iheir  sn«vi«rH  when  called  at  the 
lir»  1  am  far  fiom  vhar^jiog  the  governor 
wkk  Ibii  bard  uia^^c,  who  appears  to  he  a 
but  bud  his  orders  so  to 


A.  a  1752. 


[258 


mktu 


Whan  cny  trial  cams  on,  I  found  il  was  nol 

laljf  Glamuv'*  n>ni,i^.r  |  {^m\  to  answer  for,  of 

vIkIi  1  ibar  \-  ron^cience  could  easily 

civ«r  tzie,  but  -    in d  follies  of  my  fore- 

T«ra  charged  agsiu»t  ma*  such  as  the 


aiUnittatiee  to  the 
js  fsfufcd/*— See 


ttira 


reKetlion  10  1715,  in  17 19^  and  1745 ;  bo  could 
not  be  allowed  the  character  of  an  honest  man: 
not  wit  hidtan  ding  that  I  firmly   belieTe,   tberar] 
was  none  present  but  who  wai  either  himself, 
or  came  ol  people  tliat  were  concerned  in  re-  ' 
bellion  some  time  or  other,    God  forbid  they  j 
should  be  all  called  villains  upon  that  account^ 
as  the  greatest  sinner,  upon  bis  repenting,  may 
turn  saiat> 

I  was  a  schoolboy  in  the  year  1715,  and  was 
but  little  more  in  the  year  1719  ;  and  if  I  hsd  | 
the  misfortune  to  be  concerned  in  the  year ' 
1745,  I  was  indemnified;  and   have  done  no* 
thing  since  to  incur  the  goveroment's  dbplea- 
sure,  that  I  am  cooscioui^  of. 

Another  surprising  charge  against  a  man  ill  i 
a  Christian  oouutry  came  in  against  me;  which  ^ 
was,  that  I  was  a  common  parent  to  fatberlees^ 
children^  and  took  care  of  widows  in  the  coun- 
try, which  gained  uie  great  influence  over  tho  t 
people,  by  which  they  were  much  led  by  me  ; 
or  ^ome  words  to  that  purpose*     I  hope  soon 
to  appear  before  a  judge  who  will  reward  cha- 
rity and  benevolence  in  a  diOerent  way  :  and  I 
only  regret  how  little  service  was  in  my  power 
to  do,  not  only  to  the  fatherless  and  widows,  , 
hut  to  all  maiiKind  in  £;eneral ;  as  1  thank  God 
I  would  make  ait  the  race  of  Adam  happy  if  I  i 
could. 

Another  charge,  aud  a  heavv  <)ne,  was,  thftt 
when  subfactor  to    Glenure   \  exacteil   nior«  | 
rents  of  the  tenants  than  was  paid  to  the  ex- 
chequer, and  which  superplus  rents  1  wrong* 
ously  applied,  eiiher  to  my  own  use,  or  to  tb#  j 
behoof  of  my  brother  Ardshiel's  children. 

I  own  1  did  get  some  acknowtc^lgments  from  ' 
some  of  the  tenants,  with  the  knowledge  and 
consent  of  the  factor  G  tenure ;  and  do  declare^  i 
that  ]   was  as  assiduous  as  in  my  power,  in 
acting  for  the  benetit  of  said  children,  and  that  ' 
1   did  account  to  their  behouf  for  all  1  could  ! 
make  of  these  lands,  over  and  above  the  renl  ] 
paid  to  the  factor :  and  thought  it  no  crime  s(»  | 
to  do  ;  but  to  the  contrary,  thought  it  my  duty, 
to  which  1  was  bound  by  the  tii.8,  not  only  of  J 
nature,  hut  also  of  gratitude,  being  the  dis* 
tressed  of&pring  of  a  very  afiV ctiuuate,  loving  | 
brother,  to  wliom   1  was  under  many  obtiga*  [ 
Lions;  and  whose  niialortunes  (lam  well  as*  | 
sured)  proceeded  from  a  conviction  of  his  doings  I 
his  duty,  ivhich  may  be  conarued   by  some  td  < 
be  owing  to  the  prejudice  of  his  education.  i 

1  do  declare,  that  1   made  no  confession  of  1 
the  crime  alleged  against  me*  at  Invirary,  or  . 
elsewhere ;    and  that  i   had  it  not  to  make.  I 
Nor  can  I  remember,  that  any  then^  asked  mft  J 
Ihequestiou,  excepting  IV]  r,  AlcTitander  Camp*  ^ 
bell  minister  ;  w  ho,  1  am  persuaded,  could  not  < 
be  capable  of  being  author  of  that  fa]i«  calum- 
ny, which  must  have  been  raised  by  some  ma- 
licious persons.     May  God  forgive  ihem  !    ft  ' 
is  very  true,  that  )  told  Air.  Campbell  ]  had  no  I 
personal  love  for  Glenure,  and  iliat  1  was  sorry 
how  few  in  his  neighbourhood  bad.     Eut  1 1 
hop^'  no  man  ivould  construct  that  as  if  J  hadij 
an  intetition  to  muider  him* 

1  aUo  told  biiD«  Uiat  1  had  (he  charity  to  bt> 


S5U]  25  GEORGE  II. 

lie^e,  that  the  bulk  of  the  jury  (lioiigbt  1  had 
some  forcknowleflge  of  the  murder.  Yet  I 
ttill  think,  and  not  without  some  reason,  that 
they  ^ve  themselTes  too  little  tiaie  to  coniider 
the  proofs  of  either  side,  but  gpave  in  their  ver- 
dict upon  the  prepossessed  notion  of  guilt. 
What  must  convince  all  welt-thinking  people 
of  their  being  so  pi*epossesscd,  is  their  stopping 
one  of  my  lawyers  twice  in  his  speech  to  them 
after  the  witnesses  were  examined.  Mr.  Gamp- 
bell  of  South- hall,  if  I  noticed  right,  was  the 
first  that  interrupted  my  lawyer.  There  was 
tome  other  who  also  spoke,  and  who  1  did  not 
know.*  I  am  told  this  is  not  often  practised 
in  Christian  countries;  but  there  are  many 
ways  taken  upon  some  emergencies  for  an- 
swering a  turn ;  and  it  appears  I  must  have 
been  made  a  sacrifice,  whoever  was  guilty. 

As  to  what  Alexander  Campbell  in  Tayna- 
loib  deponed,  That  I  did  not  know  what  I 
should  nelp  any  of  his  name  to,  if  it  was  not  to 
the  gallows ;  I'  do  remember  part  of  what 
passed,  lbou£;h  my  memory  is  not  quite  so 
eoud  as  Mr.  Campbeirs,  or  Colin  Maclaren*s : 
nut  this  far  I  can  safely  say,  npon  the  word  of 
a  Christian  going  into  eternity,  that  I  had  no 
other  intention  in  what  I  said,  than  a  joke; 
and  if  I  bad  any  grudc:e  at  himself  for  being 
Campbell,'  1  was  undtT  no  necessity  to  go  into 
his  house,  as  there  was  another  public  bouse 
within  a  gun-shot  of  his  door. 

As  to  what  Ewan  Murray  and  Colin  Mac- 
laren  deponed,  in  r<^gard  to  my  telling  them, 
that  [  had  given  a  challenge  to  Gienure ;  I  own 
I  was  wrong  in  telling  them  that  story,  as  it 
Was  a  thing  they  had  no  concern  in. 

And  as  to  what  Colin  Maclaren  deponed  I 
should  have  said  upon  the  road,  after  partings 
with  Ewan  Murray ;  1  solemnly  declare  I  dio 
not  remember  one  word  that  passed,  being 
much  the  worse  of  liquor,  as  he  himself  owned 
apon  oath. 

I  do  declare,  that  I  frankly  forgive  all  these 
evidences  and  jury,  as  freely  as  1  want  for- 
giveness of  my  sins;  and  do  from  my  heart 
pray,  that  God  may  pardon  them,  and  bring 
them  to  a  timeous  repentance  ;  and  that  they 
may  not  he  charged  with  my  innocent  blood, 
as  'i  never  intended  any  of  them  the  least 
harm. 

My  dearest  friends  and  relations ;  I  earnestly 
recommend  and  intreatyou,  for  God's  sake, 
that  you  bear  no  grudge,  hatred,  or  malice,  to 
those  people,  both  evidence  and  jury,  who  have 
been  the  means  of  this  my  fatal  end.  Rather 
pity  them,  and  pray  for  them,  as  they  have 
my  blood  to  answer 'for.  And  though  you  hear  j 
my  prosecutors  load  my  character  with  the 
greatest  calumny,  bear  it  patiently,  and  satisfy 
yourselves  with  your  own  conviction  of  my  in- 
nocence. And  may  this  my  hard  fate  put  an 
end  to  all  discords  among  you,  and  may  you 
all  be  unite«t  by  brotherly  love  and  charity. 


Trial  of  James  Stewart. 


[960 


*  **  Two  of  the  jury  did  speak,  when  the  pan- 
nel's  lawyer  was  summing  up  the  proof,  which 
disconcerted  him."    See  Su^lement,  p.  61. 


And  may  the  great  God  pnrfeet  yoa  ail,  aid 
guide  you  in  the  ways  of  peace  and  coocord, 
dnd  grant  us  a  joyful  meeting  at  the  grett  diay 
of  judgment. 

1  remember  Mr.  Alexander  Campbell 
minister  at  Inverary,  for  whom  1  have  a  grett 
value  for  his  kind  and  good  advices,  told  m«, 
that  the  fear  of  discovering  any  of  mr  friendb 
might  be  a  temptation  to  me  from  making  any 
confession  of  my  knowledge  of  that  murder. 

Therefore,  to  do  my  friends  justice,  so  far  m 
I  know,  I  do  declare,  that  none  of  my  friends, 
to  my  knowledge,  ever  did  plot  or  concert  tbtft 
murder ;  and  I  am  persuadeil  they  never  eos^ 
ployed  any  person  to  accomplish  that  cowardly 
action ;  and  I  firmly  believe,  there  is  none  of 
my  friends  who  might  have  a  quarrel  with  thtft 
gentleman,  but  had  the  honour  and  resolutioft 
to  offer  him  a  fairer  chance  for  his  life,  than  to 
shoot  him  privately  from  a  bush. 

Mr.  Brown  of  Colston,  Mr.  Miller,  Mr. 
Stewart  younger  of  Htewarthall,  and  Mr. 
Mackintosh,  were  my  counsel,  and  Mr.  Stewart 
of  Edinglassie  my  agent.  I  do  declare,  that  I 
em  fully  satisfied  they  did  me  justice;  and 
that  no  part  of  my  misfortune  was  owing  to 
their  neglect,  or  want  of  abilities.  And  as 
they  are  men  of  known  honour,  I  hope  tbey 
will  do  justice  to  my  behaviour  during  the 
trial. 

I  c[ive  it  as  my  real  opinion,  that  if  Allat^ 
Breck  Stewart  was  the  murderer  of  Glenare, 
that  he  consulted  none  of  his  friends  aboot  it. 

I  conclude  with  my  solemn  declaration,  tluik 
I  tamely  submit  to  this  my  lot,  and  severe  sen- 
tence ;  aud  that  I  freely  resign  my  life  to  the 
will  of  God,  that  gave  me  my  first  breath ; 
and  do  firmly  believe,  that  the  almighty  God, 
who  can  do  nothing  without  a  good  design, 
brought  this  cast  of  providence  in  my  way  for 
my  spiritual  good. 

I  die  an  unworthy  member  of  the  episoopal 
chuiTh  of  Scotland',  as  established  before  the 
Revolution,  in  full  charity  with  all  mortals; 
sincerely  praying  Go<l  may  bless  all  my  friends 
and  relations,  benefactors  and  well-wishers; 
particularly  my  poor  wife  and  children,  who 
in  a  special  mauner  I  recommend  to  his  ditine 
care  and  protection  ;  and  may  the  same  God 
pardon  and  forgive  all  that  ever  did  or  wished 
me  evil,  as  I  do  from  my  hipart  forgive  them. 
I  die  in  full  hopes  of  mercy  ;  not  through  any 
merit  in  myself,  as  I  freely  own  I  merit  no 
good  at  the  hand  of  my  offeniled  God ;  but 
my  hope  is  through  the  b'looil,  merits,  aud  me- 
diation of  the  ever  blessed  Jesus,  my  Redeemer 
and  glorious  Advocate,  to  whom  I  recommend 
my  spirit.  Come,  Lord  Jesut>,  come  quickly. 
James  Stewart. 

Mr.  Coupar,  minister,  showed  me  sooM 
queries  a  few  days  a^o,  which  ho  was  desired 
to  put  to  me.  They  arc  all  answered  already 
in  my  speech,  excepiiug  two ;  which  are» 
Whether  I  knew  Allan  Breck's  route  from  Bnl- 
lachelish  to  Koalisnacoan,  and  from  thence  to 
Rannoch,  before  the  murder  happened  P  An- 
swer, I  declare  before  God,  1  dia  not.    Whe* 


161] 


Trial  ofM.  Sfuires  and  S.  Wills. 


A.  D.  1753. 


[S62 


Ihcr  I  iDlereeded  with  James  Drammoad,  in 
the  Tolboolb  of  Edinburgh,  to  persuade  or  en- 
tioe  his  brother  Robert,  who  was  already  out- 
jawedl,  to  murder  Gleuure,  and  that  I  would 
gite  him  m  good  gun  for  that  purpose,  and 
money  for  carrying  him  off  the  country,  and 
•that  Ardshiel's  interest  would  procure  him  a 
t&mmimioo  in  France  ?  Answer,  I  declare  be- 
IsR  God,  there  never  passed  such  words  be- 
twiit  James  More  Drummond  and  me,  or  any 
to  that  effect.      James  Stewart. 


**  Notioe  has  already  been  taken  of  this  James 
Jfoie  Drammond ;  a  fellow  nursed  in  villany  ; 
wbe  havinff  been  disappointed  in  the  scheme, 
lie  owned,  lie  had  laid  for  procuring*  favour  to 
Umaelf,  did,  in  order  to  supply  the  want  of  his 
ma  9oe€  testimony  against  James  Stewart  at 
loTcrary,  send  thither  one  in  writing,  declaring 
ai  above  in  the  postscript  of  the  dying  speech. 
This  dcdaration  had  been  perused,  and  was 
tested  npDQ  by  one  at  least  of  the  lawyers  of 
Ihe  edier  lide,  as  mav  be  seen  in  the  penult 
wd  feUoving  lines  or  the  84th  page  of  the 
trial;  mad  was,  it  is  said,  banded  about  among 
tbcjnijioen  in  court.    It  was  acknowledged 


afterwards  by  Macgregor  himself,  who  had 
the  impudence  to  call  at  a  gentleman's  house, 
November  17,  the  day  after  lie  maile  his  escape 
out  of  Edinburgh  castle ;  where  being  chal- 
lenged for  making  such  a  declaratiun,  he  did 
not  pretend  to  deny  it,  but  averred,  that  every 
thing  lie  had  said  in  it  was  true."  Supplement 
to  the  Trial  of  James  Stewart. 

The  notice  which  had  been  already  takcQ 
of  James  More  Drummond,  alias  Macgregor, 
in  p.  4  of  the  Supplement,  is,  that  he  was  a 
sou  of  the  noted  Rob  Roy  Macgregor,  (as  to 
whom  see  Home's  History  of  the  Rebellion) 
that  his  name  had  been  inserted  in  the  list 
of  witnesses  against  the  prisoner  James  Stew- 
art, when  he,  Drummond,  was  a  prisoner  in 
the  Tolbooth  of  Edinburgh,  having  been 
only  three  weeks  before  (viz.  Aug.  5,)  found 
guilty  of  a  capital  crime,  and  ordered  by  the 
lords  of  justiciary  to  be  kept  in  close  prison  till 
sentence  'should  be  passed  upon  hint,  that  he 
was  not  carried  to  Inverary  by  reason  of  an  ex- 
press prohibition  from  above,  but  was  removed 
soon  thereafter  from  the  city  prison  to  that  of 
Edinburgh  castle  for  the  benefit  of  better  air. 


.530.  The  Trial  of  Mary  Squires  and  Susannah  Wells,  Widows, 
for  an  Assault  and  Felony  committed  on  the  Person  of  Eliza- 
beth Canning,  at  the  Sessions-House  in  the  Old-Bailey,  before 
the  Right  Hon.  Sir  Crisp  Gascoyne,  knt.  Lord  Mayor  of  the 
City  of  London,  the  Hon.  Mr.  Justice  Wright,  the  Hon.  Mr. 
Justice  Gundry,  the  Hon.  Mr.  Baron  Adams,  William  More- 
ton,  esq.  Recorder,  and  others  his  Majesty's  Justices  of  Oyer 
and  Terminer  of  the  City  of  London,  and  Justices  of  Gaol- 
Delivery  of  Newgate,  holden  f<Jr  the  said  City  and  County  of 
Middlesex,  on  Wednesday  the  2 1st  of  February,  and  continued 
till  Monday  the  26th:  25  George  H.  a.  d.  1753.* 

Mary  squires,  widow,  and  Susannah 
Wdlt,  were  ioilicted ;  the  first,  for  that  8he,  od 
Ihc  8d  of  January,  ib  the  dwelling-house  of 


*  The  atory  of  Elizabeth  Canning  excited 

a  moat  lifely  and  extensive  interest.     Her  ve- 

ocity  waa  aiaintaioed  and  denied  with  the  ut- 

iMMt  vcbemenco  of  opposition.     It  occasioned 

duly  litigations  in  the  news-papers,  and  other 

fariodacal  nrinta,  and  gave  rise  to  numerous 

Uparate  poblicaiions,  of  various  sorts  and  di- 

Mfnsiang.    The  eager  siinplicily  with  which 

Ac  partizans  of  the  girl  (like  the  foolish  con- 

wltera  of  a  conjuror)  ha<l  by  their  questions 

^Hfgislnd  to  her  materials  for  her  answers,  is 

wdl  exhibited  by  Mr.  Ramsay  the  painter,  in 

m  mmj  which  he  published  under  tlie  title  of 

M  Ladw  lioMi «  Ckigy  man  to  a  Nobleman, 


Susannah  Wells,  widow,  on  Elizabeth  Cannings 
spinster,  did  make  an  assuult,  puttinji^  her  the 
said  Elizabeth  Canning  in  corporal  fear  and 
danger  of  her  life,  and  one  pair  of  stays,  value 
10s.,  the  property  of  the  said  Elizabeth,  fium 
her  person,  in  the  dwelling  house,  did  steal, 
take,  and  carry  away.     And 

The  latter,  Vor  that  she,  well  knowing  hrr 
the  suid  Nary  Squires  to  have  done  and  com- 
mitted the  felony  aforesaid  on  the  said  '2d  of 
Jajiuary,  her  the  said  Mary  did  then  and  there 
feloniously  receive,  harboiir,  comfort,  conceal, 
and  maintain,  agaiuKt  his  majesty'^  peace,  aiid 
against  the  form  of  the  statute. 

Elizabeth  Canning  sworn. 

Elizabeth  Canning,  I  had  been  to  Sali-Petra 
Bank  to  see  an  uncle  and  annt ;  his  name  is 


S63j 


25  GEORGE  11. 


Trial  ofM.  Squires  and  S.  WellSf 


[204 


Thomas  Collej.  I  set  out  from  home  about 
eleFen  in  llie  forenoon,  and  stayed  there  till 
about  nine  at  night,  on  the  Ist  of  January ; 
then  my  uncle  and  aunt  came  with  me  as  far  as 
Aldgate,  where  we  parted  ;  I  was  then  alone, 
8o  came  down  Houndsdiich,  and  OFer  Moor- 
ilelds  by  Bedlam  wall;  there  two  lusty  men, 
both  in  i^reat-coats,  laid  hold  of  me,  one  on  each 
aide ;  they  said  nothing  to  me  at  first,  but  took 
half  a  guinea  in  a  little  box  oat  of  my  pocket, 
and  Zu  that  were  loose. 

Q.  Which  man  took  that?— Canning.  The 
man  on  mv  right  hand.  Thev  took  my  gown, 
apron,  and  hat,  and  folded  them  up,  and  put 
them  into  a  great-coat  pocket.  1  screamed 
out ;  then  the  man  that  took  my  gown  put  a 
handkerchief,  or  some  such  thinjjf,  to  my  month. 

Were  there  any  persons  walking  near  you  at 
that  time? — I  saw  nobody.  They  then  tied 
my  hands  behind  me ;  aAer  which  one  of  them 
gave  roe  a  blow  on  the  temple,  ami  said,  Damn 

Tou,  ^ou  bitch,  we'll  do  for  you  by  and  bye. 
having  been  subject  to  convulsion -fits  these 
four  years,  this  blow  stunned  me,  and  threw 
me  directly  into  a  fit. 

Are  these  fits  attended  with  a  struggling  ? — 
I  don't  know  that. 

What  happened  afterwards  ?— The  first  thing 
that  I  remember  after  this  was,  1  found  myself 
by  a  large  road,  where  was  water,  with  the 
two  men  that  robbed  me. 

Had  you  any  discoufse  with  them  ?— I  had 
none ;  they  took  me  to  the  prisoner  Wells's 
house. 

About  what  timd  do  you  think  it  might  be  F 
—As  near  as  I  can  think,  it  was  about  four 
o'clock  in  the  morning.  I  had  recovered  from 
my  fit  about  half  an  huur  before  I  came  to  the 
house.  They  lugged  me  along,  and  said,  You 
bitch,  why  don't  you  walk  faster?  One  had 
hold  on  my  right  arro,aud  the  other  on  the  left, 
and  so  pulled  me  alontr. 

Can  you  form  any  judgment  in  what  manner 
you  was  conveyed  to  the  place  before  you  re- 
covered of  your  fit  ? — \  think  they  dragged  me 
along  hy  my  petticoats,  they  beinc^  so  dirty. 

When  you  came  to  ^^'ells's  house,  was  it 
day-light? — No,  it  was  not;  I  think  it  was 
dajvlight  in  about  three  hours,  or  better,  after  I 
WM  there ;  which  i:$  the  reason  1  believe  1  was 
carried  in  about  four  o'clock. 

When  you  was  carried  in,  what  did  you  see 
there? — 1  saw  the  gypsey-woman  inquires, 
who  was  sitting  in  a  chair,  and  two  young 
women  in  the  same  room ;  Virtue  Hall  (the 
evidence)  was  one ;  they  were  standing  against 
a  dresser. 

Did  you  see  the  prisoner  (Wells)  there? — 
No,  I  did  not.  As  soon  as  I  was  brought  in, 
Mary  Squires  took  me  by  the  hand,  and  asked 
me  if  1  chose  to  go  thf*ir  way,  saying,  if  I  did, 
I  should  have  fine  clothes.    I  said,  No. 

Did  she  explain  to  you  what  she  meant 
^y  fi^oing  their  way?— )fo.  Sir.  Then  she 
went  and  took  a  knift  out  of  a  drever-drawer, 
and  cut  the  lace  of  my  ttoy  t,  and  took  them 
from  me. 


Had  yoo,  at  thst  time,  any  apprehensions  of 
danger  ? — I  thought  she  was  goiujpf  to  cut  my 
throat,  when  I  saw  her  take  the  knife. 

Did  you  see  the  prisoner  (Wells)  at  that 
time? — No,  I  did  not. 

Was  any  thing  else  taken  from  yoo  ?— There 
was  not  then ;  but  Squires  looked  at  my  pettH 
coat,  and  said,  Here,  vou  bitch,  you  may  keep 
that,  or  I'll  give  you  that,  it  is  not  worth  mucb^ 
and  gave  me  a  slap  on  the  face. 

Had  she  the  petticoat  in  her  hand  ?— No,  it 
was  on  me.  After  that,  she  pushed  me  up 
stairs  from  out  of  the  kitchen,  where  we  were. 

Describe  the  kitchen  ?— The  kitchen  was  at 
the  right  hand  going  in  at  the  door,  and  the 
stairs  are  near  the  fire. 

How  many  steps  to  them  ?— There  are  ^Nir 
or  five  of  them. 

What  did  they  call  the  name  of  the  place 
where  they  put  you  in  ? — ^They  cxdl  it  the  hay^ 
loft.  The  room-door  was  shot  as  soon  as  I 
was  put  up. 

Was  it  fastened?— I  don't  know  that;  it 
was  at  the  bottom  of  the  stairs  in  the  kitchen. 
AfWr  she  shut  the  door,  she  said.  If  ever  die 
heard  me  stir  or  move,  or  any  such  thiof, 
she'd  cut  my  throat. 

Did  you  see  any  thing  brought  up  to  eater 
drink  ? — I  saw  nothing  brought  up.  When 
day -light  appeared,  I  couM  see  about  the  room  $ 
there  was  a  fire-place  and  a  grate  in  it,  no  bed 
nor  bedstead,  nothing  but  hay  to  lie  upon ; 
there  was  a  black  pitcher  not  quite  full  of  water, 
and  about  twenty-four  pieces  of  bread.  [A  pitcher 
produced  in  court.]  This  isthepitclier,  wbicb 
was  full  to  near  the  neck. 

How  much  in  quantity  do  you  think  these 
twenty-four  pieces  of  bread  might  he? — I  be* 
lieve  about  a  quartern  loaf. 

Had  you  nothing  else  to  subsist  on  ? — I  bad 
in  my  pocket  a  penny  mince-pye,  which  I 
bought  that  day  to  carry  home  to  my  brother. 

How  long  did  you  continue  in  that  room  ?-« 
A  month  by  the  weeks,  all  but  a  few  hours. 

What  do  you  mean  by  a  month  by  the  weeks? 
—I  mean  a  four-weeks  month. 

Did  anjr  body  come  to  you  in  the  room  dur- 
ing that  time  ?— No,  Sir,  nobody  at  all.  Ola 
the  Wednesday  before  I  came  away,  I  saw 
someboily  look  through  the  crack  of  the  door, 
but  don't  know  who  it  was. 

Did  you,  during  the  time  you  was  in  thie 
confinement,  make  any  attempts  to  come  down 
stairs,  or  make  your  escape  ? — No,  Sir,  1  did 
not  till  the  time  I  got  out. 

Had  you  anv  thing  to  subsist  on  during  the 
time,  besides  the  pieces  of  bread,  penny -pye, 
and  pitcher  of  water  ? — No,  I  had  not. 

At  what  time  did  you  g^t  out  ? — I  got  enl 
about  four  o'clock  in  the  afternoon  on  a  Men- 
day,  after  I  had  beeu  qonfined  there  four  weeki^ 
all  but  a  few  hours. 

How  did  you  get  out? — I  broke  down  a 
board  that  was  nailed  up  at  the  inside  of  a  win* 
dow,  and  got  out  there. 

How  high  was  the  window  from  the  groond  F 
— ^deecribeditbythehcightof  aplaeeiv 


for  an  Auatdl  and  Felony. 


A.  D.  1759. 


[866 


liSettionK-iioii^r,  which  was  aboiil  flight  or 

ffinri  ill  J  4 1  \     Fiftl  I  ip»t  my  head  oat,  and 

1  bj  the  \fall,  autl  tfot  my  body 

hat  1  fnrned   [iiyaell  rotinil,  and 

ifito  a  Utile  ourrow  |ilace  by  4h  lane, 

fr-H  brliiud  i«, 

•  *e  jufnfi  hurt  yoa?— No,  il  was 

;tii  thm  ?— It  was. 

you  do  for  clolhing-? — I  took  tn 

'     '  J  Hiti  and  n  huodkerchiert  that 

d'tf  and  hv  in  a  grate  io  the 

^i  Eiriiijt^ed  in  court.]    1  made   my 

m%  gelting'  out ,    the  handkerchief  1 

-  Oij^  hemil  instead  uf  a  cap,  it  ivas  ?ery 

I  jroo  lk#e  any  hody  when  you  jumped  out 
Um  wtii4ow  f — No,  nobody  at  atl ;    then  I 
i  Oft  Ibe  liack-tide  the  house  up  a  lane,  and 
\  ft  tittle  brook,  ami  over  two  tields,  as  I 
1   dill  not  take   notice  how  many 
t^^alh-way    brought    nie    by    the 
i*«dr.    Ttirn  I   went  by  the  road  straight 

If^  knew  the  way  ? — I  did  not. 
-  mil  no  Cftll  at  any  house  ? — No»  I  did  not. 
Ililni»  Im  o'clock  I u»i  na  1  came  oirer  iVIoor- 

'  uit  a  quarter  after  to  my 
nnaribury, 

y  b<»dy  with  your  rols' 

—  No,  !  did  not. 

.^^  wifli  Hrst? — 1  met  with 

At ;    then  I  saw  my  mother 

J.      8he  went  intu  a    til  di* 


iBotker 


tb  top: 
ttiA   lllr 


lirifflili^l 

11^  ' 


oil  £r^ipe  io  aecount  to  any  body  how 

n   treated  ?— Yes,    I   did  to  Mrt. 

who  catne  to  see  me,  that  I  had 

bread    and     water.     Site    waa    lO 

the  ctiuUi  not  uvk  me  any  questiona 

Mr.   Wiutlfbnry   came  in,  with 

i  senrant  hd'ore  I  went  to  live  with 

;   he  took  me  by  my  hand,  and  asked 

1  had  been  f     1  said^  Sir,  in  Hert> 

'  ir| ;  he  aftid,  Bet,  bow  do  you  know 

J.  because    I   saw  my  mistresses 

^u  by,  which  she  used  to  go  into 

into  Hertf(inl«hire,  that  was  Mra. 

I     I    kuew  the  coach,  because  J 

•0  carry  ibiogi  to  it,  and  fetch  them  back 

li  jton  isked  any  questions  about  the  room 

J  IMl  Big^bt,  and  wliat  v'fU  had  to  subsist 

I— Yen,  Uiere  were  many  people  came  in, 

1  I  loM  thi?m   \    hnd  a  jutf  which  was  not 

!  fo  i !  'V  axked  me  how  much  ? 

imi  1  •-  Hiter  than  a  g^allon  of  it: 

Ibty  «a^  '  j^»t  out  Y  HUd  I  said, 

1  livkr  tind  had  toni  my 

WriiiKcitmg  out,  ivuirii  bied  all  the  way  com* 

Wliai  iliingi  did  you  observe  io  this  hay- 
Mi?— Tlicf«  was  a  barrel,  a  saddle,  a  basun, 
smI  b  ibbicco-maQy* 

Wb«t  da  you  mean  by  a  tobftcco-oiould  Y — 1 
AMO  %mek  a  tbioK  that  they  do  up  peiioy- 
»flnkiifftobiic€owith« 


[Cros8^xamination<] 

How  lonf^  niii^ht  these  two  men  continut] 
with   you  in  Moortit^lds? — About  half  an  hour. 

Did' any  body  pass  by  at  the  lime  f — Nohodjf 
at  all. 

Was  this  boXf  that  contained  yonr  huirgfuinea| 
taken  out  of  your  pocket?— Yes,  8ir,  it  was.       ' 

Had  you  any  thing  else  in  your  pocket  ? — I 
had  a  pocket-handkerchief  with  a  pye  in  it, 
which  1  did  not  lose. 

Was  there  any  light  near  this  place  where  ! 
you  was  ilr^^t  attacked  ? — There  was  a  lamp. 

Jlafe  you  recollected  how  lonff  you  lay  in 
this  fit  betore  yoo  CAme  to  yourself?—!  C4inool 
be  sure,  but  it  was  about  lislf  an  hour  before  1 
arrived  in  Wells^s  bouse. 

During  the  time  of  your  first  being  attacked,  , 
whether  you  had  any  degree  of  sense  at  all  F— < 
Not  till  half  an  hour  before  I  came  I  o  that  house. 

Had  you  sense  enough  of  any  sort  lo  know 
by  what  means  you  was  conducted  ? — I  think 
they  dragi^ed  me  along:  by  my  petticoats^  tlvey 
were  made  so  dirty  ;  but  J  was  not  sensible. 

Was  you  in  any  surprise  when  she  took  yoor  ] 
stays  f — 1  wasiu  a  great  surprise,  and  atrofii  i 
tremble. 

Then  how  can  3'ou  tell  who  was  there  at  the 
time? — ^The  terror  made  me  look  about  me  ta 
see  what  company  was  there. 

How  long  did  the  two  men  stay  in  the  roomf  j 
—They  btayeU  no  longer  than  till  they  saw  my 
stays  cut  off,  then  they  went  away,  before  I 
was  put  up  in  the  loth 

Did  not  you  make  an  attempt  to  get  out  be* 
fore  tliat  Monday  you  talk  on  ? — I  did  not 

How  came  you  not  to  make  an  ntlcippt  be»4 
fore? — Because  I  thought  they  might  let  mo^ 
out ;    it  ne^er  came  into  my  head  till  thftl 
morning. 

Where  was  you  sitting,  when  you  saw  some- 
body peep  through  the  crack  of  the  doorf^ — I 
was  walking  along  the  room. 

How  wide  was  this  crack  ? — It  was  ibout  1  ^ 
quarter  of  an  inch  wide. 

Did  not  you,  in  the  whole  twenty-seven  days, 
perceive  where  you  was? — t  did  in  about  % 
week  after,  by  seeing  the  coach  go  by,  ^^l 

Was  not  you  extreme  weak  ?--l  was  pretlj 
weak.  "f* 

Was  you  ever  that  way  before  ? — Nik"  "^l 
never  was.  .  r 

Did  not  you  pass  maov  houses  tn  your  vray  | 
home  ? — I  did,  and  asked  my  way  of  people  on 
the  road. 

How  came  you,   being  in  that  deplorable 
csoodition,  not  to  go  into  some  house,  and  relate 
the  hardships    vou   had    ffone    through  ? — I  I 
thnuj^ht^  if  I  did»  may  be  Imight  meet  some* 
body  lielonging  to  that  bonse. 

Did  you  see  the  prisoner  (Wells)  while  yon  j 
were  in  thatconlinement? — I  never  mw  her  in  ( 
the  house  stall  till  I  went  down  afterwardtt 

Had  you  any  of  your  fits  while  in  that  room  t  1 
-*I  had  not,  but  waa  liuotiiig  and  sick.  I 

Squire*.  1  ne?er  saw  that  witness  ia  my  life» 
time  tiU  Uii#  day  three  weeki. 


S67j 


25  GEORGE  II. 


Trial  ofM.  Squires  and  &  WdU^ 


[268 


Uovr  was  the  prisoner  (Squires)  dressed, 
wheo  you  was  carried  in  ? — She  was  sitting  in 
her  (To^Df  with  a  handkerchief  about  ber  head. 

Did  joa  never,  during  all  the  time,  try  if  Ibe 
4oMr  was  fastened  or  not? — 1  did  once  push 
•gaiuRt  it  with  my  hand,  and  found  it  fast 

Had  you  used  to  hear  any  body  in  the 
kitchen  F — 1  beard  people  sometimes  blowing 
the  ftre,  and  pttsing  in  and  oat.  Tliere  was 
another  room  in  ivhioh  I  beard  a  noise  at 
nights,  but  the  house  was  very  quiet  in  the 
day-time. 

Did  you  eat  all  your  bread  ? — I  eat  it  all  on 
4he  Friday  before  I  got  out ;  it  was  quite  bard, 
and  I  used  to  soak  it  m  the  water. 

When  did  you  drink  all  your  water  P — I 
drank  all  that  about  half  an  hour  before  I  got 
out  of  the  room. 

(Upon  being  asked  where  she  did  her  ooca- 
■aions  while  in  the  room,  she  answered,  she  never 
had  had  any  stool  while  in  eou6nement,  she 
bad  only  made  water.) 

Virtue  Rail  examined. 

Hall.  I  know  the  two  prisoners  at  the  bar ; 
Wells  lived  at  Enfield -Wash ;  I  went  and 
lived  there  as  a  lodger.  Mary  Squires  lived 
in  the  boose, and  had  been  thereabout  seven  or 
eight  weeks. 

Q,  How  long  before  E.  Canning  was  brou^ 
in  ?~^HalL  Abont  a  fortnight  before,  which 
was  on  tbe  9d  of  January,  about  four  in  the 
morning ;  .she  Was  brought  in  there  h}f  two 
men ;  John  Squires  was  one  of  them,  he  is  son 
to  Mar^  Squires ;  the  other  man  I  don't  know 
any  thing  of;  1  never  saw  him  before. 

How  was  she  dressed  when  brought  in  ?— 
She  had  no  gown  on,  or  bat  or  apron. 

Who  was  in  the  house  at  the  time? — There 
was  I  and  Mary  Squires,  the  prisoner  and  her 
daughter.  The  gypseyman  said,  Mother,  I 
have  brought  you  a  ^rl,  do  you  take  her : 
then  she  asked  £.  Canning,  whether  she  would 
go  her  way  ? 

What  dfid  she  mean  by  that  f— She  meant 
Ibr  her  to  turn  whore ;  but  she  would  not. 

-Do  you  mention  this  by  way  of  explanation, 
or  as  words  that  she  said  r — As  words  that  she 
•aid  ;  then  Mary  Squires  took  a  knife  out  of  a 
drt»iRer-drawer  in  the  kitchen,  and  ripped  the 
lace  of  her  stays,  and  pnlleil  them  off,  and  hung 
them  on  the  back  of  a  chair  in  the  kitchen,  and 
pushed  her  up  into  the  room,  and  said.  Damn 
70U,  go  up  there  then,  if  you  please;  then  the 
man  that  came  in  with  the  gypsey's  son,  took 
the  cap  off  E.  Canningf's  head,  and  went  out  a 
doors  with  it ;  the  gypsey-man  John  Squires 
took  the  stoys  off  tbe  chair,  and  went  out  with 
them. 

Where  was  E.  Canning,  when  the  two  men 
took  away  tbe  things  ?— She  was  then  up  in 
the  room. 

Had  you  ever  been  in  that  room?— I  had, 
before  she  was  brought  there,  several  times. 

What  was  the  uame  they  call  it  by  ?— They 
call  it  by  the  name  of  tbe  workshop  ;  there 
wai  a  great  deal  of  hay  in  it^  they  only  p«t 


lumber  in  it :  there  was  a  great  many  pieces 
of  wood,  a  tobacco -mould,  and  this  black  jug; 
about  three  hours  after  the  young  woman  was 
put  up.  Nary  Squires  filled  the  jug  with  water, 
and  carried  it  up. 

How  do  you  know  it  was  three  hours  af\eip 
—Then  it  began  to  be  lightish. 

Did  you  hear  auy  talk  between  them  aflcr 
she  I  was  iu  the  room? — They  took  care  I 
should  know  but  little. 

Has  Susannah  Wells  a  huslraod? — No,  sho 
has  not :  when  I  went  out  of  the  kitchen,  I 
went  into  the  parlour ;  Wells  said.  Virtue  tid^ 
the  gipsey<man  came  in  and  told  me,  th«t  his 
mother  bad  cut  the  stays  off  the  young  woman's 
back,  and  he  had  got  them ;  and  she  bid  no 
not  to  say  any  thing  to  make  a  clack  of  it| 
fearing  it  should  be  known. 

How  long  was  you  in  that  house  ? — I  wis 
there  a  quarter  of  a  year  in  all,  if  not  more ;  I 
was  there  the  whole  time  E.  Canning  wif 
there  ;  but  I  never  saw  her  once  after  she  wat 
put  up  into  that  mom.  I  was  the  first  that 
missed  her  ;  I  asked  the  gypsey-woman  onoi^ 
whether  that  girl  was  gone  ?  She  anaweied» 
What  is  that  to  you,  you  have  no  busineH  with 
it :  but  I  durst  not  go  to  see  if  she  was  gone.; 
if  I  had,  very  likely  they  would  have  served 
me  so. 

Did  you  ever  see  the  other  man  after  that 
night? — No,  I  never  did. 

Who  lodged  in  the  house  at  tbe  time  bcsidci  ? 
—There  was  Fortune  Natus  did. 

Did  Mary  Squires  continue  in  the  bouse  hwf 
after  this  ? — She  did,  till  we  were  all  taken  ujb 
which  was,  I  think,  on  tbe  l*hursday  after  tbe 
young  woman  was  gone. 

What  was  you  in  that  bouse  ? — I  went  tboe 
as  a  lodger ;  but  1  was  forced  to  do  as  they 
would  have  me. 

Mary  Squires.  What  day  was  it  that  tbs 
young  woDuin  was  robbed  ? 

Court.  She  says  on  the  morning  of  the  Sad 
of January. 

M.  Squires.  I  return  thanks  for  telling  mc^ 
for  I  am  as  innocent  as  the  child  unborn. 

Wells.  How  long  were  these  people  (mean- 
ing  the  gypsies)  at  my  house  in  all,  from  fiial 
to  last  ? 

Hall.  They  were  there  six  or  seven  weeks 
in  alt ;  they  had  been  there  about  a  fortnight 
before  the  young  woman  was  brought  in. 

Did  you  ever  see  this  cap  or  bed-gown  b^ 
fore  ? — Not  to  my  knowledge. 

Thomas  ColUy  sworn. 

Colley.  I  am  E.  Canning'8  uncle ;  I  live  at 
Sah-Petre  Bank  ;  on  the  New -year's  day  sIm 
dined  and  supped  at  my  house,  aud  went  away 
about  niiip  in  the  evening,  as  near  as  I  cas 
guess ;  I  and  my  wife  went  along  with  her  to 
Uoundsditch,  almost  to  the  blue-Ball ;  tbcfO 
we  parted  with  her,  about  a  quarter  or  very  near 
half  an  hour  afier  nine  o'clock. 

How  was  she  cloth^?-^he  bad  agow% 
bat,  and  white  apron  on. 

2 


Jbr  an  AstauU  and  FeUmy* 
SUmbeth  Cunning  gw^rn. 


A*  D.  1753. 


[270 


Canning,     E,  Canning  that  Ims  gifen  her 

Viirfrnr*'  h  my  ilaoghter ;  after  ebe  was  miss- 

1  I   Nei»-year*3  day,    I  adv^rtiiieil  her 

I  ^  L*s  ;  »he  cmme  biick  on  the  day  before 

•  ^mi^  i^harlrs^s   >I«riyvdom,   about  a  quarter 

leu  u*cl<ickat  nifi^fit ;  she  liad  nothing  but 

bed-gown  and  a  cap;  1  feiJ  into  a 

tly  ;  my  dau lighter  is  subject  to  tits ; 

vrfi«  ■  i;aiTet-cieling  feU  in  U|Km   her 

-Mhicb  first  occasioiieil   llieni ;    and  at 

when  any  botly  speaks  hastily  to  lier,  or 

my  "-uriH  ize,  she  is  »efy  liable  to  fall  in 

«he  Ua^Jiometimescoohiiued  in  one  seven 

;lil  hours,  sometimes  three  or  lour;  fche 

seDsibie  during  the  time  she  is  in  one, 

va  more  than  a  ne^v-born  babe  ;  when  1  came 

to  myself,  my  daughter  was  lalkinir  to  Mrs. 

Wooilward  aud   Mr*   Winilebury  ;  they  asked 

W  where  she  had  been  ?  she  said  on  the  Hert- 

Ibrdtbire  road,  winch  she  knew  by  seeing  a 

going  by  ;  she  t*af  e  the  same  account 

here.     When  site  came  into  her  warm 

m  waa  fery  sick,  and  ii»d  no  free  pamage 

her  fbrsKKiI  or  urine,  till  she  was  sup* 

plied  with  glv^ers,  for  se^'en  days  after  she 

ttmt  hmne,  but  what  fi-aslbrced  by  half  a  cup* 

fm  ft  a  time* 

John  WintUburtf  sworn, 

Wmlffbufy.  I  fa\T  EH^stWth  Canning  the 
ai<^bt  she  came  home  ;  she  appeared  in  a  rery 
m  fondiliun,  and  bud  this  dirty  bed-gown  and 
Cip  OQ.  Hearing  she  was  come  home,  1  went 
taher  mother^s  house,  and  ftaid,  Bet^  how  do 
lott  do?  She  said,  !  am  very  bad.  Said  I, 
Where  hatt;  yim  been?  8he  said,  I  have  been 
lomcwbere  on  the  HertfordsbiiT  road,  because 
Ihtfe  seeti  the  Hertfordt>hire  coach  go  back< 
Nrdt  and  forwards. 

4.  Hare  yon  heard  the  evidence  she  has 
fi^B  here  in  court .^ — WintUhury,  I  have; 
ibffave  the  same  account  Uiat  nijrht,  but  not 
^wfe  so  fully  that  tii^ht,  as  she  did  before  the 
atiiiHf  ahlermijn  on  the  Wednesday  after;  hut 
^larreea  with  whiit  she  has  said  here.  1  found 
iNrin  a  great  Uurry,  so  did  not  ask  her  many 
fMoQS  that  night. 

Jouph  Adamton  sworn. 

iiam$on.  1  ^lave  known  Elizabeth  Canning 
i|youugerson»e  years.  I  never  saw  her  after 
iktcame  homci  ^>1l  t^^  ^^y  ^'^  wettt  down  to 
like  the  peuide  up.  I,  and  several  neighbours 
•f  «t,  ai^'reed  to  go  to  the  [dace,  aome  on  horse* 
bek,  And  some  in  the  coach  with  E,  Canning. 
1  Wis  down  about  au  hour,  or  an  hour  and 
Mf,  before  the  coach  came,  and  hiiil  secured 
•II  the  people  we  found  there.  1  seeing  the 
J^iim  benwe  she  wa^  brought  in,  thought  she 
^  capable  of  giving  some  account  of  it:  I 
keil  to  uieet  her  find  asked  her  about  it ; 

^ •     *  the  room  with  some  hay  in  it,  a 

tiiii  in  the  corner  of  it,  an  odd  sort 

•'f  -i.  '  P..|MN  room.     1  went  with  her  to  the 
Wasc,  Mud  carried  her  ont  of  the  chiise  into 


the  kitchen,  und  set  her  on  the  dresser,  and  of- 
tiered  all  the  people  to  bt  brought  to  her,  to  see 
U  nhi}  knew  any  of  ihern;  she  was  then  very 
weak.  1  took  her  in  my  arnns  like  a  child. 
Upon  seeing  Mary  8qnires,  she  said,  That  is 
the  woman  that  cut  my  stays  off,  andthreateu* 
ed  to  cot  my  throat  if  I  made  a  noise, . 

Q,  l>id  any  of  the  people  aeem  un#f  ITing  to 
be  inspected  ? — Adamson,  Yes,  Ihey  were  very 
un witling  to  be  stopped,  %vhen  we  went  down 
in  the  morning,  particularly  Mary  Squires  ; 
after  the  girl  had  saiij  thi«i  of  Squires,  Squires 
said  to  her,  She  hoped  she  would  not  swear 
her  life  away»  ft)r  she  never  saw  her  before. 
E,  Canning  pointed  to  Virtue  Hall,  and  said, 
That  young'  woman  was  in  the  kitchen  when 
I  was  brought  in  :  she  pointed  also  to  another 
young  woman,  and  tJaid,  she  was  there  at  the 
time.  Then  we  carried  her  up  to  examine  the 
housb ;  she  saiii,  none  of  the  rooms  ^he  had 
seen,  was  the  room  in  which  she  was  confined. 
Then  1  asked  if  there  were  any  other  rooms; 
they  said.  Yes,  out  of  the  kitchen  (I  had  before 
been  in  it,  but  did  not  say  so  then,  because  I 
hftd  a  mind  to  see  if  she  knew  it).  We  had 
her  up  into  it ;  she  said,  This  is  the  same  room 
in  which  1  was,  but  here  is  more  hay  in  it  than 
til  ere  was  then :  I  laid  my  Ifiind  upon  it^  and 
said,  It  baa  lately  been  shook  up,  it  lay  hollow. 
She  was  then  pretty  near  a  casement ;  said  1« 
If  you  have  been  so  long  in  this  rooin^  doubt* 
less  you  are  able  to  say  what  is  to  be  seen  out 
here.  She  ilescribeil  a*  bill  at  a  distance,  which 
is  Chinkford-hill :  1  believe  she  could  not  see 
it  at  the  time  she  spoke  about  it,  for  I  was  be* 
tween  her  and  the  casement,  with  my  back  to- 
wards the  casement.  Rhe  also  ssid,  there  were 
some  houses  on  the  other  side  the  lane  ;  then 
I  opened  the  casement,  we  locked,  and  it  was 
05  she  had  d^cribed.  I  askt  d  where  was  the 
window  she  broke  out  of?  she  sheweii  it  ug 
(there  were  some  boards  nailed  up  against  it), 
aod  said.  That  is  the  window  I  nied  to  see  the 
coach  go  by  at:  then  we  pulled  down  the 
board  ;  it  was  big  enough  for  me  to  have  got 
out  of  it ;  it  appeared  to  me  to  be  the  same 
window,  before  she  came  to  the  house,  for  I 
saw  some  of  the  plaister  brokt*  off  on  the  ottt- 
aide ;  that  window  was  one  story  high. 

Edward  Lj/t>n  sworn. 

Lyon.  The  young  woman  lived  servant  with 
me  till  she  was  missing.  I  live  in  Alderman- 
bury,  I  was  one  of  the  pei^sons  that  went  down 
to  Wells's  house.  I  went  after  the  rest  of  the 
gentlemen  on  the  Ist  of  February  ;  we  were 
there  some  time  before  she  came,  aiid  had  taken 
the  people  up ;  when  she  came,  she  was  car- 
ried into  the  kitchen,  and  <:et  on  a  dresser,  and 
the  people  ^et  all  wround  her:  1  said  to  her, 
Bel,  don't  be  frightened  or  uneasy,  you  see 
your  friends  about  yon,  and  on  the  other  hand . 
don't  be  too  sure,  without  you  really  can  swear 
to  what  you  say»  therefore  be  very  careful. 
She  pitched  upon  !\Iary  Squirei^  to  be  the  per- 
son that  cut  her  stuys  on ;  she  pitched  u|)on 
a  young  woman  that  was  said  to  be  daughter 


2T1] 


25  GEORGE  11.  Trial  ofM.  Squires  and  S.  Jf^elU, 


[878 


to  Mary  Saairef,  and  nid,  she  was  in  the 
kitchen  at  the  time,  and  likewise  Virtue  Hall, 
but  said  they  did  nothing  to  her.  This  hiack 
jag  was  brought  down,  a  bason,  and  the  to- 
bacoo*mould :  she  said,  they  were  both  in  the 
room  where  she  was  confined  ;  she  had  de- 
scribed this  jug  before,  and  said  it  was  broken 
at  the  mouth,  as  it  now  appears  to  be. 

Robert  Scarrat  sworn. 

Scarrat,  I  went  down  to  Enfield- Wash; 
there  were  six  of  us  in  all :  her  mother  and  two 
women  were  with  her  in  the  chaise ;  she  de- 
scribed the  fields,  and  likewise  a  bridge,  that 
night  she  came  home,  near  the  house ;  I  ask- 
ed her,  if  she  perceived  a  tanner's  house  near? 
she  said,  she  believed  there  was. 

Q.  Ha? e  you  heard  the  other  evidences  that 
went  down  give  their  evidence? — Scarrat.  I 
liave,  and  what  they  have  said  is  the  truth, 
which  I  heard  also ;  I  also  heard  E.  Canning 
examined  before  the  sitting  alderman,  she  gave 
the  same  account  she  has  done  here. 

Was  John  Squires  in  the  room  at  the  time 
she  pitched  upon  his  mother  and  the  rest  ?» 
He  was  ;  she  said  she  could  not  swear  to  him ; 
he  had  his  great  coat  on  at  our  first  going  there, 
but  he  had  pulled  it  off;  she  said,  he  looked 
like  the  person,  but  she  could  not  swear  to 
him ;  they  made  him  put  his  great  coat  on 
betbre  the  justice ;  then  she  ssid,  he  looked 
more  like  one  of  the  two  men  that  brought 
her  there. 

Edward  Rostiter  sworn. 

Rouiter.  1  went  down  with  the  rest  on 
the  Thursday.  1  heard  £.  Canning  examined 
before  Mr.  Tashmaker  the  justice ;  she  gave 
the  same  account  then  as  nowc;  she  said,  Johu 
Squires  was  much  like  one  of  the  men,  when 
he  had  got  his  great  coat  on  ;  she  said  she  did 
not  see  vVells  iii  the  house,  but  she  once  saw 
her  out  at  a  window,  but  did  not  know  she  was 
the  woman  that  belonged  to  the  house. 

Sutherton  Backler  sworn. 

Backkr,  1  am  an  apothecary  ;  I  saw  £. 
Canning  the  day  after  bhe  came  home,  on  the 
^th  of  January  about  noon  ;  she  was  extremely 
low  and  weak ;  1  could  scarcely  hear  her  speak, 
her  voice  was  so  low,  and  her  pulse  scarcely  to 
be  i'elt,  with  cold  sweats  ;  »hc  told  me  she  had 
no  passage  during  the  whole  time  of  her  con- 
finement ;  she  was  then  in  such  a  condition, 
she  had  a  glyster  administered  the  same  day  ; 
she  had  many  glystcrs  given  her,  which  after 
some  time  relieved  her. 

Q,  Whetliera  person  that  is  extremely  costive 
caimot  subsist  longer  without  food,  or  with  lesit 
food,  than  a  person  that  is  not  so  ?^Buckler. 
I  cannot  answer  to  that. 

Each  of  the  persons  that  said  they  went 
down  to  take  the  prisoners,  were  aske<l  where 
they  went  to  ?  and  answereil,  to  Eofield-Waah, 
the  house  of  the  prisoner  Wells. 

Mary  Squires  said  nothing  in  her  defence, 
but  called  the  following  witneiscit ' 


John  Gibbons  sworn. 


Gibbons.  I  live  at  Abbotabury,  six  miles  from 
Dorchester ;  1  am  master  of  the  house  called 
The  Old  Ship  ;  on  the  ist  of  January  1753, 
the  prisoner  Squires  came  into  the  boiise ; 
there  was  George  her  son,  and  Lucy  her 
daughter  with  her,  as  she  called  them ;  she 
came  with  handkerchiefs,  lawns,  muslins,  and 
checks,  to  sell  about  town ;  she  stayed  there 
from  the  Ist  to  the  9th  day  of  the  monlli,  and 
lay  at  my  house. 

Q,  How  long  have  you  kept  that  house  P— 
Gibbons.  1  have  kept  it  two  years,  come  Lady- 
Day. 

Look  at  the  woman,  are  you  sure  thai  is 
she  ?— [He  looks  at  Squires,  and  says,  1  an 
sure  it  is.] 

[Cross-examination.] 

How  long  have  you  known  her?^I  bare 
known  her  three  years,  and  have  seen  her 
there  three  years  ago. 

How  long  have  you  lived  there  P — I  was 
bom  at  that  town  :  1  am  a  married  man,  bavt 
a  wife  and  one  child ;  1  was  bred  in  the  ftrm- 
ing  way  at  Fisherton. 

By  what  do  you  recollect  the  day  P — There 
came  an  exciseman  to  officiate  there  for  one 
John  Ward  that  was  sick,  and  I  put  the  day 
of  the  month  down  when  he  came ;  the  excise* 
office  is  kept  at  m v  house ;  the  man  that  < 
was  Andrew  Wicks,  or  Wick. 

Did  you  see  the  prisoner  sell  any  of  t 
goods  you  mentioned  ?— No,  1  did  not ;  thsf 
offered  them  to  sell  to  me,  and  others ;  ny 
wife  bought  two  check  aprons. 

William  Clarke  sworn. 

Clarke,  I  live  at  Abbotsbur^,  and  have  ftr 
seven  years ;  I  remember  seemg  the  gypsev 
there ;  the  last  time  1  saw  her  was  on  the  lOta 
of  January  last ;  I  met  with  them  on  the  road ; 
we  went  some  way  together ;  we  parted  at 
Crude  way- foot,  four  miles  from  Abbotsbaryi 
and  three  from  Dorchester. 

Q.  Where  were  they  going? — Clarke,  1 
cannot  tell  that. 

Had  you  ever  seen  her  before  ? — f  saw  her, 
and  her  son  and  dau}i:liter,  three  years  age 
come  March,  at  Abbotsbury  ;  they  came  with 
handkerchiefs,  lawns,  and  muslins  to  sell:  I 
saw  the  landlord's  wife  at  the  Ship  buy  soma 
aprons  of  them  the  last  time  they  were  there. 

[Cross-examination.] 

How  came  you  to  take  |>articular  notice  of 
the  day? — By  keeping;  my  other  accounts;  I 
carried  goods  out  with  me  the  same  day  t* 
Porters  ham. 

Have  you  your  book  w  ith  you  ?— No,  I  haf* 
not ;  hut  I  cannot  forget  the  day,  because  1  dt 
not  go  so  often. 

Which  way  were  they  going?— They 
making  for  London  ;  they  talked  so. 

Did  they  give  you  any  account  to 
place  they  were  bound  next  ?— They  did  not; 


S73J 


Jot  an  Auaidi  and  Feimy. 


A.  D.  17M!, 


fS74 


_       mi  111  iff  man'i  house  (poiQlIng  to 
i)  at  /IU¥)Wbury* 

joo  u%^  them  lliere  ?— I  did,  on  the  Isl 
nuy :   I  commtHilj  go  there  of  an  avta ' 
hmwe  «  |>(it  hi'  liquor, 
jofi  rememl»er  when  you  kept  ChrUt- 
ij  ? — I  do  pot. 

toa  gtf «  »oy  account  of  New  Stile  or 
N&,  I  cannot ;  btit  if  ]  was  lo  die  for 

rU  spcuk  ihetrulU. 
wms  the  clothfcl  there  j* — The  ^ame as 
lite  »an  irt  >i  tiluc  co»t  and  a  red  want- 
hmA  a  great  coat  with  hiiu. 
WImI  9xe  ta  he  T*^ lie  is  about  Arc  foot 
•r  tig^  inebea  high  ;  the  girl  was  in  a 

rrnnv  yoa  aaw  her  the  time  you  men* 
f — I  nuAcitakc  to  swear  positifely  to  thai, 
1  tmm  bertbrreon  the  isit  of  January  last, 
Jukvt  on  the  Oth  or  lOth  afternanls  ;  and 
llirai  going'  about  the  town  iu  the  tiuie. 

Wild  9m  jtm  f — I  am  a  house* keeper,  and 
about  %i\  yearii ;  I  am  a 


mean  last 


Tkemai  G revit U  sworn. 

Qrtwiiig.  I  lire  at  Coonihc,  three  milpa  from 
'  \     I   kerp  a  public-house  there,  the 
|tf  me  Lamb  ;  I  saw  Mary  Squires  at  my 
I  oai  ibc  t4th  of  January. 
flow  tiMoy  miles  is  Coombe  from  Dor- 
r  ? — Grtxilk,  i  cannot  tell. 

ma  with  her  tJiere  ? — Tliere  was  her 
licf  brother,  as  shf*  said  ;  Ifiey  sold 
y  kwiTS,  and  such  thm^. 
'  did  ahe  atay  at  Coombe  f — They 
\  tot  one  uight. 

[Crota -exam  [nation*] 

^HVll  Jaoiitry  do  you  mean  ?— I 
■Wwiry.ttf^  «vedc8  ago  W%i  Sunday 

Bwiasie  you  to  take  such  particular  notice 
rfif— TbtTif  wu  a  carpenter  at  roy  house; 
btefipMiS  the  biiFgcat  part  of  his  money  ;  it 
^My  lioBday  night*  1  would  have  him  ^o 
4iol  bia  ImtbeMi  and  put  htm  out  of  the 
Wviiwii  or  threv  ttmesp  and  aftcrr  that  he  went 
wm  lb«  way  to  another  hotise,  and  pawned 

wkoefiaes  shewed  their  tub- 
,  m  lh«  cause  of  their  coming  to  gtf  e 

Mn  IiUitr  sworn,  for  the  Crowu* 

I  aril  ftsb  aud  oysters  about  Wal- 

K  istd  Thmibalds.     J  know  the  pri- 

wpI\  hv  jiicrht ;  the  la&l  lime 

Qrr  lite  time  the*  was 

U  1  uite;  before  that  I 

I  km  9ef  €ral  timet  every  day  up  and 

f  brftTT?  the  was  tnketi* 

'  un  of  that  ? — Inner,  I 

<-  wfvka  before ;    that 

LHalk^il  li  Mi«i,  pretending  to 

iiieoucet 

I JOOMC  any  guodi  mc  had  to  sell  ?«— No^ 

XLX. 


I  did  not ;  I  always  saw  her  by  herself.  I 
saw  a  young  man  tn  blue-grey  when  sfje  waa 
taken  up>  and  two  youug  women^  all  takeo  iu 
the  fiousc  of  Welitt 

Wells  being  calleil  upon  to  make  her  ile- 
feuoe,  said.  As  to  her  character,  it  was  but  an 
iodifierent  one ;  that  she  had  an  unfortunate 
husband,  wfto  was  hanged;  and  atl4ed,  she 
never  sax?  the  young  woman  (meaning  £. 
Canning)  till  they  came  Ui  take  ii$  tip  \  and  as 
to  Squires,  she  nercr  saw  her  above  a  week 
and  a  day  before  they  were  taken  up. 

Mqutres  Guilty,  Death.     ^Vells  Guilty. 

Squires,  the  last  ^ny  of  the  sessions,  being 
asked  what  she  had  to  say  before  ahe  rccdved 
sentence,  answered,  '♦  That  on  New-year*e  day 
I  lay  at  Coombe  at  the  widow  Gre?ille*s  house; 
the  next  day  I  was  at  Sto[»tage ;  there  were 
some  people  n  ho  were  cast  away,  and  they  ram# 
along  with  mu  to  a  little  house  on  the  top  of  the 
moor,  and  drank  there;  there  were  my  son  and 
daughter  with  me.  Coming  along  Popham- 
lane,  there  were  some  people  rakiDi;  up  dung. 
V  drank  at  (he  second  ate-honse  in  BasinfiTstoke 
on  theThursday  in  theNew.yearweek.  On  the 
Friday  I  lay  at  Bagshot -heath,  at  a  little  liney 
house  on  I  he  heath.  On  the  8atuiday  t  lay  nt 
Olil  Brentford  at  Mrs.  Edwftrd»*s»  who  liella 
greens  and  small  beer,  I  oould  have  told  this 
before,  but  one  pulled  me,  and  unoiher  pulled 
me,  and  would  ni)t  let  me  speak.  I  lay  at  Mr?<. 
EdwardsV  on  the  Sunday  and  Monday ;  and 
uti  the  Tuesday  or  Weiluesday  after,  J  came 
from  tbetice  to  Mrs*  Welk'a  house  at  Enfield,'* 


The  time  drawing  near  for  the  Report  of  the 
convicts,  sir  Crisjt  Gascoyne  laid  before  hia 
Majesty  1  not  only  the  whole  Evidence  piren  at 
the  Trial ;  hut  also  the  several  1  nfunnatioos  and 
Certificates  he  had  received  since  her  copvic- 
tiiiu,  accorapaDied  by  the  folio wiog  Memorial : 

To  the  KiN0*s  Most  Excellent  Majesty. 

*^  May  it  please  your  majesty  to  permit  your 
dutiful  subject,  the  lord  mayor  of  your  faithful 
city  of  London,  with  the  most  profotmd  hu- 
mility and  respect  to  represent  to  your  majesty, 
that  before  the  Trial  of  Mary  Inquires,  for  tha 
robbery  of  Elizabeth  Cauniog,  and  of  Susannah 
Welli,'^  as  accessary,  many  unfair  representa- 
tions were  printed  and  dispersed,  which  could 
not  fail  to  excite  public  prejudice  against  iheui , 

'»  The  fotal  consequence  whereof,  iu  depnt- 
iug  those  unhappy  wretches  of  a  material  jiart 
of  their  evidence^  engaged  me,  from  the  hi^j^h 
station  1  have  the  honour  tr>  bear,  to  expre&« 
my  duty  lo  your  majesty,  and  the  public,  by 
tnaking  this  inquiry, 

*^  lo  which  the  utmost  caution  has  been  ob- 
served.^All  the  witnesses  have  been  strictly, 
separately,  and  publicly  examined,  aud  iheit 
credit  well  certified. 

'^  Many  other  informations,  to  the  same 
effect,  have  been  offered  ;  but  I  declined  trou* 
bling  your  innjesty  with  further  evidence,  %% 
liumhly  appRhendlng  it  totally  unuectssary, 

T 


275] 


26  GEORGE  II. 


Trial  of  John  Gibbont  and  others. 


[876 


«  In  the  course  of  this  inquiry,  Virtue  Hall, 
a  principal  witiiess,  Yoluntarily  and  publicly 
retracted  the  whole  of  the  evidence  she  ga?e 
upon  the  trial. 

"  To  this  I  presume,  hv  your  n^^esty's 
leare,  to  add,  that  amidst  all  the  exaroinatioDS 
I  have  taken,  there  has  not  appeared  any  va- 
riation or  inconsistency,  or  the  least  circum- 
stance or  suspicion,  that  could  lead  me  to  doubt 
the  innocence  of  those  unhappv  convicts. 

*<  All  which  is  humbly  submitted  to  your 
majesty's  great  wisdom  and  judgment,  by 
your  mtyesty's  faithful  subject, 

"  Crisp  Gascoyne,  Mayor.*' 

«>  On  the  10th  of  April  following,  the  Report 
was  accordingly  maue  of  the  convicts  under 
sentence  of  death  ;  when  his  majesty  was  gra- 
ciously pleased  to  respite  the  execution  of 
Mary  Squires  for  six  weeks ;  and  to  refer  the 
consideration  of  the  evidence  on  both  sides  (for 
evidence  against  her  had  been  presented)  to  his 
attorney  and  solicitor-general. — Soon  after  the 
attornejT  and  solicitor-general  made  their  Re- 
port, with  their  opinion,  That  the  weight  of 
evidence  was  in  the  convict's  favour :  where- 
upon his  majesty  was  graciously  pleased  to 
grant  her  a  free  pardon.''  Thus  far  from  sir 
risp  GasGoyne's  Address  to  the  Livery,  p. 
26, 27. 


The  friends  of  Canning,  in  their  Refutation 
of  sir  Crisp  Gascoyne's  Address,  say,  "  Bat 
of  the  purport  of  this  Memorial,  and  what  in 
particular  was  annexed  to  it,  the  friends  of 


Canning  were  totally  ignorant  till  the  publica- 
tion of  The  Address  ;  and  therefore  ooohl  not 
examine  any  witnesses  with  a  nartic«lar  Tiew 
to  contradict  it.  They  had  indeed,  upon  the 
recantation  of  Virtue  Uall,  taken  some  aflida- 
vits  to  prove,  that  the  gypsey  was  at  Enfidd 
when  the  robbery  was  committed ;  and  the 
duke  of  Newcastle  (on  whom  the][r  waitedl 
having  acquainted  them,  that  his  m^|esty  had 
referred  the  consideration  of  the  cTidenoe  on 
both  sides  to  his  attorney  and  solicitor  general, 
they  took  many  other  affidavits  to  profe  the 
same  facts;  but  when  these  affidaviti  wwe 
presented  to  the  attorney  and  solicitor  gencnl, 
they  rejected  them,  because  they  were  not  at 
liberty  to  examine  any  evidence  that  was  tahn 
after  the  da^  of  reference :  It  necessarily  Ill- 
lowed  therefore,  that  the  weight  of  evimiea 
was  in  the  convict's  favour ;  and  so  it  was  n- 
ported,  and  she  pardoned.  Upon  thia  view 
of  the  case,  however,  it  does  not  become  ia 
any  degree  more  prolmble,  that  she  was  inno- 
cent." See  the  Refutation  of  au*  Crjap  Git- 
Coyne's  Address  to  the  Livery,  in  fo1k>,  p.~18. 

These  friends  of  Canning  likewise  gave  ai 
answer  to  sir  Crisp's  Memorial  presented  to 
tht  king,  Sec.  But  sir  Crisp's  AddreaSy  and 
Canning's  friends'  Refutation  of  it,  make  two 
large  folio  pamphlets;  and*  the  many  other 
pamphlets  published  on  lioth  sides  at  that  timc^ 
are  too  numerous  to  insert  here,  or  take  any 
notice  of;  and,  as  Canning's  friends  thought^ 
did  not  clear  up  that  mysterious  affair ;  jpn- ' 
bably  the  following  trial  of  Canning,  for  neqnry, 
may  be  said  to  have  done  it.     Former  jEMUm*. 


53L  Tlie  Trials*  of  John  Gibbons,  William  Clarke,  and  Thomas 
GuEviLLEjt  for  Wilful  and  Corrupt  Perjury,  at  tbe  Sessions 
House  in  the  Old-Bailey,  held  on  Thursday  the  6th,  Friday  the 
7th,  Saturday  the  8th,  and  Monday  the  10th  Day  of  Septem- 
ber, before  the  Right  Hon.  the  Lord  Chief-Justice  Willeii 
William  Moreton,  esq.  Recorder,  and  other  his  Majesty's  Jus- 
tices of  Oyer  and  Terminer  :  26  George  IL  a.  d.  1753. 


Robert  Qroom, 
John  TrimoMry 
Joseph  Tenniswood, 
Richard  Graham, 
John  Allen, 
flenry  Bland, 


Jury. 

William  Remnant, 
William  Champion, 
Barnard  Townsend, 
Bartholomew  Pain, 
John  Merry, 
ftiamuci  Watlington. 


According  to  the  course  of  Uie  court, 
the  Trials  of  Gibbons,  Clarke,  and  Greville,  the 


*  Mem.  Sir  Crisp  Gascoyne,  knt.  lord 
mayor  of  London,  withdrew  when  these  trials 
bame  on,  as  he  always  declared  he  woold. 

t  *•  These  Abbotsbury  witnesses  were  in- 
dicted for  perjury,  for  the  evidence  they  gave 


three  Abbotsbury  witnesses  upon  the  trial  of, 
Mary  Squires  tur  the  robbery  of  Elizabeth 
Canuinflf)  being  called  on,  the  ri;;ht  honourable 
the  lord  mayor  quitted  the  chair,  and  retired 
out  of  court.  But  in  order  to  remove  the  in* 
dictmcnts  into  the  court  of  King*8-bench,  and 
to  supersede  the  jurisdiction  of  this  Courts 
three  iiarchmcnt  writings,  said  to  be  writs  of 
Certiorari,  were  presented  to  the  Court :  where- 
upon Mr.  Davy,  of  counsel  for  the  defendaoti^ 

in  the  trial  of  Squires  and  Welk.  Canniog'a 
friends  had  moved  the  court  of  King's-beuch 
for  a  Certiorari  to  remove  the  indictment,  whiok 
had  been  refused.  But  tbe  attorney  for  bm 
iuif ted,  Uiat  according  to  ancieiu  pra^^oa,  • 


pn 


Jot  Wilfid  and  Corrupt  Perjury* 


1753. 


bforroed  ihe  Court,  tbol  he  was  g really  suiv 
kritcd  at  this  ittemiit,  tidt  mily  as  the  court  of 
fcteVbericb  had,  on  the  last  day  ot  last  term, 
ibidlttteUr  refused  to  grant  these  wi  its^althouijh 

Kpjtpd  lot  hy  the  prosecutors  ;  but  as  the  de- 
iidants  bad  actpu  so  ?ery  fairly,  as  to  have 
flf^A  them  (what  tbey  wei  e  not  obhged  to  give) 
m^l  days  notice  of  trial,  and  had  tiow  ti?ar 
t&  hnndred  wirnesses  atieitdiu^^  noany  of  them 
IrMfllt  from  g^eat  distances,  at  a  vast  expetice, 
ilP  manifest  the  innocence  of  the  defendants  lo 
Ike  worid.     Upon  which  the  per^n  who  at- 
Wfilh  t!»esc  wriN,  being  asked   by  the 
Who  he  was?  How  he  came  by  them  ? 
how  those  writs  had  been  ubtaiaed?    fie 
led  the  Court,  that  he  was  clerk  to  Mr. 
I,  (an  atloroey)  who  was  out  of  town  ;  that 
Ifcbftd  the  writs  delivered  to  him  by  Mr.  Miles's 
Ivoilier,   ihe  distdler  ;     and  that  he  himself 
Imw  nothing  further  of  the  matter.     Which 
r  not  being  satistactory  to  the  Court*  the 
Cauit  wag  pleased  to  order  bim  to  take  the 
wnti  back  again,   to  recotnmend  an  iumury 
bow  these  writs  had  been  olHaiued,  and  the 
tnik  to  be  called  on.     Whereupou  the  jury 
were  charged  with  the  following  indictment 
ifiinit  John  Gibbons : 

Fm&T    iNPtCTMENT. 

London*   The  jurors  for  our  lord  tlie  king 

Certiorari  might  he  obtained  by  application  to 
t  jiNtge  during  a  vacatiODf  at  the  instance  of  a 
preaecutor  in  a  criminal  cause,  as  a  t\iatter  of 
ii(hl;  because  it  is  the  king's  privilege,  who 
in  criminal  causes  is  the  plaintiff^  to  sue  in  what 
cwjrt  he  will.  Therefore  the  attorney  for 
Ckaoifig  was  un  nil  ling  to  try  tbem  at  the  Old 
Bdley,  where  sir  Crisp  Gascoyne  bad  a  seat ; 
lad  went  down  to  Tottt ridge,  to  lord  chief  jus- 
tice Lee*8|  and  got  his  hand  to  the  Fiais ;  upon 
*hieh  the  Certioraris  were  issued  out  to  re- 
Wift  the  indictment  into  the  court  of  KingV 
kflch  ;  and  next  term  a  nintion  was  made  to 
taforce  a  return  of  them.  Upon  this  motion  a 
roll  was  rnade,  for  the  Court  at  the  Old  Bailey 
l^i&ew  cause,  why  a  return  should  not  be  en- 
fcfeed.  The  allomey  against  her  prayed  a  par- 
ticaiar  day,  which  was  allowed  ;  and  be  under- 
Hok  to  be  ready  on  that  day.  He  moved,  (hat 
IbGertioraris  might  be  superseded;  alledging, 
^  tfie  lord  chief  justice  had  been  impo<}ed 
^an  in  signing  the  fiats :  but  bis  lord&bip  not 
Nii|P  presetiti  a  rule  was  made  for  hearing  the 
Mtlof  that  suggestion  at  a  future  day.  Un 
1^  future  day  the  counsel  for  the  country- 
Qeo  niof  ed,  that  the  writs  miijht  be  superseded, 
h  (be  absence  of  the  lord  chief  ju&tice.  But 
U  the  motion  to  supersede  these  writs  was 
fooiNled  on  a  suggestion,  that  the  lord  chief 
ioniee  bad  been  imposed  upon ;  and  as  none 
^  Mt  kkrdship  could  know,  whether  be  was 
upon  or  no ;  both  motions  were  or- 
to  sund  over,  till  his  lordship  shouhl  be 
Lt:  hut  as  be  died  without  ev^r  coming 
court  al'terwardsi  the  writs  are  not  super* 
Mad  to  this  hour.'*  Refuution  of  air  Crisp 
C««oojDe*i  Aildress  to  the  livery,  p*  SO,  91. 


upon  their  oath  preseut,  that  at  the  delivery  of 
the  king's  ffaol  «f  Newtjate,  holdeu  for  the 
county  of  A]idd1escK»  at  Just  ice- hall  in  the 
Old  Bailey,  iu  the  suburbs  of  the  city  of  Lon- 
don, on  Weduesday  the  Slst  day  of  February, 
in  the  26th  year  of  the  reign  of  our  suvereijfa 
lord  George  the  second,  king  of  Great  Britam, 
&c.  before  sir  Crisp  Gascoyne,  knt.  mayor  of 
the  city  of  LondoUi  sir  Martin  Wright,  knt. 
one  of  the  justices  of  our  said  lord  the  king, 
SBsigued  to  hold  to  bold  pleas  before  the  king 
himself,  Nathaniel  Gundry,  esq,  one  of  the 
justices  of  our  said  lord  the  king  of  the  court  of 
Common  Pleas,  sir  Richard  Adams,  knt.  one  of 
the  barons  of  the  court  of  Exchequer  of  our  said 
lord  the  kiog,  and  others  their  I  el  lows  justices 
of  our  said  lord  the  king,  assigned  to  deliver  the 
gaol  of  our  said  lord  the  king,  of  W  wgate,  of  the 
prisoners  therein  being,  Mary  Squires,  late  of 
the  parish  of  Enield,  in  the  county  of  Middle- 
sex, widow,  was  tried  and  convicted  upon  an 
indictment  against  her,  for  that  she,  on  Ihe  Sd 
day  of  January  I  in  the  36th  year  of  the  retgn 
of  our  sovereign  lord  George  the  2nd,  king  of 
Great  Britain,  &c.  with  force  and  arms,  at  the 
parish  aforesaid,  in  the  county  albresaid,  in  the 
dwelling- ho  use  of  one  Susannah  Wells,  widow, 
there  situate,  upon  one  Elizabeth  Canning, 
spinster^  in  the  peace  of  God  and  our  said  lord 
the  king  then  and  there  being,  feloniously  did 
make  an  assault,  and  her  the  said  Elizabeth  in 
bodily  fear  and  danger  of  herlilistheo  and  there 
feloniously  did  put,  and  one  pair  of  stays  of  tlie 
value  often  shillings,  of  the  goods  and  cbatlets 
of  the  said  Elizabeth,  from  the  person  and 
against  the  will  of  the  said  Elizabeth,  in  the 
dwetling-house  aforesaiil,  ^l^^u  and  there  vio- 
lently and  feloniously  did  steal,  take,  and  carry 
away,  against  the  peace  of  our  i^aid  lord  the 
king,  his  crown  and  dignity.  Upon  which 
same  trial,  one  John  Gibbons,  late  of  Abbots* 
bury,  in  the  county  of  Dorset,  uctualler,  ou 
the  21st  day  of  February,  in  the  year  aforesaid, 
to  wit,  at  Justice-hall  aforesaid,  in  lite  parish 
of  ISt.  Sepulchre,  in  the  ward  of  Farringdon 
Without,  in  the  city  of  London,  came  in  hii 
own  proper  person  as  a  witness  on  the  be- 
half of  the  said  Mary  Si[uires,  of  and  upoD 
the  matters  contained  in  the  said  indict- 
tuent  I  and  Ihe  said  John  Gibbons,  then 
and  there  in  the  court  aforesaid,  before  the 
said  justices  last  abovO' named,  and  others 
their  fellows  assigned  as  atofesaid,  upon  the 
trial  aforesaid,  was  in  due  munner  and  form 
sworn,  and  took  his  corporal  oath  unon  the 
holy  gospel  of  God,  as  such  witness  (the  same 
Court  then  and  there  having  a  sufficient  au- 
tboriiy  to  administer  the  sume  oath  to  the  said 
Mm  Gibbons  in  that  behalf.)  And  the  said 
John  Gibbons,  on  the  said  2 1st  day  of  February, 
in  the  year  aforesaid,  not  having  God  before 
bis  eyes,  but  being  moved  and  seduced  by  the 
insligalion  of  the  devil,  and  wickedly  and  un- 
justly devising  and  intending  to  pervert  justice, 
and  to  procure  the  b  lid  Mary  8t|uires  unjustly 
lobe  ac()iiitted  of  thcsaid  crime  laid  to  her 
charge  to  the  aeid  indictment^  tbeo  and  there 


279] 


26  GEORGE  n. 


Trial  of  John  Gibbons  and  ntherst 


[SSO 


upon  the  trial  aforesaid,  upon  his  oath  afore- 
8ai<^,  falsely,  inaliciously,  wilfully,  wickedly, 
and  corruptly,  did  say,  depose,  swear,  and 
give  in  evidence  to  the  said  Court,  and  the  ju- 
rors of  the  said  jqry ,  upon  the  trial  aforesaid,  as 
follows,  {that  is  to  say)  on  the  1st  day  of  Ja- 
nuary, 17^3,  (meaning  the  year  of  our  Lord 
17.53)  the  prisoner  Hquires  (meaning  the  above- 
named  Mary  hSquircs)  came  into  the  house 
(me.r.iin|r  the  house  of  the  said  John  Gibbons, 
at  Abiiutsbnry  aforesaid,  in  the  said  county  of 
Diirsiit.)  There  was  George  her  son,  (meaning 
George  the  sun  of  the  said  Mary  Squires)  and 
Luc  V  her  daughter  (meaning  Lucy  the  daugh- 
ter ol  the  said  Mary  Sciuires)  with  her  f  mean- 
ing the  said  Mary  Squires.)  And  that  tlic  said 
John  Gibbons,  upon  the  trial  aforesaid,  upon 
Ills  oath  aforesaid,  on  the  saiil  Slst  day  of  Fe- 
bruary, in  the  year  aforesaid,  at  Justice-hall 
aforesaid,  in  the  parish  of  St.  Sepulchre  aful-e- 
aaid,  in  the  wsrd  of  Farringdon  Without 
aforesaid,  did  falsely,  maliciously,  wilfully,  and 
corruplly,  say,  depose,  swear,  and  give  in  evi- 
dence as  follows :  she  (meaning  the  said  Mary 
Squires)  came  with  handkerchiefs,  lawns,  mus- 
lins, and  checks,  to  sell  about  town  (meaning 
Abbotsbury,  in  the  county  of  Dorset);  she 
(meaning  the  said  Mary  Squires)  stayed  there 
(meaning  at  Abbotsbury  in  the  said  county  of 
Dorset)  from  the  Ist  to  the  9th  day  or  the 
month  (meaning  from  the  1st  to  the  9tb  day  of 
the  naonth  of  January,  in  the  said  year  of  our 
l^rd  1753,)  and  lay  at  my  house  (meaning 
the  house  of  him  the  said  John  Gibbons,  at 
Abbotsbury  aforesaid,  in  the  said  couuty  of 
Dorset.)  And  the  said  John  Gibbons,  then 
and  there,  upon  the  said  trial  being  demanded 
to  look  at  the  said  Mary  Souires,  then  a  pri- 
soner at  the  bar  there,  and  being  asked  whe- 
ther or  not  he  was  sure  that  she  was  the  same 
Mary  Squires,  whom  he  had  so  as  aforesaid 
deposed  and  sworn  to  have  come  to  his  said 
house  at  Abbotsbury  aforesaid,  on  the  said  Ist 
day  of  January,  in  the  said  year  1753,  and  to 
have  stayed  there  from  the  said  1st  day  of  Ja- 
nuary aforesaid  to  the  9th  day  of  the  saiti 
month ;  he  the  said  John  Gibbons,  upon  the 
trial  aforesaid,  upon  his  oath  aforesaid,  in  answer 
to  the  said  demand  and  question,  did  falsely, 
maliciously,  wickedly,  wilfully,  and  corrnptlj^, 
further  say,  depose,  swear,  and  give  in  evi- 
dence as  follows :  1  (meaning  himself  the  said 
John  Gibbons)  am  sure  it  is  (meaning  that  he 
the  said  John  Gibbons  was  sure  that  the  said 
Mary  Squires,  then  a  prisoner  at  the  bar  there 
upon  the  said  trial,  was  the  same  Mary  Squires, 
whom  he  the  said  John  Gibbons  had  as  afore- 
said deposed  and  sworn  to  have  come  into  his 
said  house  at  Abbotsbury  aforesaid,  on  the 
said  1st  day  of  January,  in  the  year  of  our 
Lord  1753,  and  to  have  stayed  there  from  the 
said  1st  day  of  January,  aforesaid,  to  the  9th 
day  of  the  said  month.)  Whereas,  in  truth 
and  in  fiict,  on  the  said  1st  day  of  Jaooary,  in 
t)ie  year  of  our  Lord  1753,  the  said  Mary 
Squires  did  not  come  into  the  bouse  of  the  said 
ypbn  QiUmaat  Ahbotshary,  in  the  nid  eomity 


of  Dorset.  And  whereas,  in  truth  and  in  fael, 
the  said  George,  the  son  of  the  said  Mary 
Scjuires,  and  the  said  Lucy,  the  daughter  of  the 
said  Mary  Squires,  or  either  of  them,  were  not 
in  the  house  of  the  said  John  Gibbons,  at  Abbota- 
bury  aforesaid,  in  the  said  county  of  Dorset,  on 
the  said  1st  day  of  January,  in  the  ^ear  of  our 
Lord  1753,  with  the  said  Mary  Squires.  And 
whereas,  in  truth  and  in  fact,  the  aaid  Harjr 
Squires  did  not  stay  at  Abbotsbury,  in  the  said 
county  of  Dorset,  from  the  Ist  to  the  9th  day 
of  the  mouth  of  January,  in  the  said  year  of 
our  Lord  1753.  And  whereas,  in  truth  and  in 
fact,  the  said  Mwry  Squires  did  not  lie  at  the 
house  of  the  said.u>hu  Gibbons,  at  Abbotabory 
aforesaid,  on  the  said  1st  day  of  January,  in  the 
year  of  our  Lord  1753,  until  the  9th  day  of  the 
same  month.  And  whereas,  in  troth  and  in 
fact,  the  said  Mary  Squires  did  not  lie  at  the 
house  of  the  said  John  Gibbons,  at  Abbotabory 
aforesaid,  on  the  said  1st  day  of  January,  in  the 
said  year  of  our  Ijord  1753,  nor  on  the  said  9th 
day  of  the  said  month  of  January,  in  the  year 
last-mentioned,  nor  at  any  time  between  the 
said  1st  day  of  January,  in  the  said  year  of  onr 
Lord  1753,  and  the  said  9th  day  of  the  mom 
month  of  January.  And  whereas,  in  tralh 
and  in  fact,  the  said  Mary  Squires,  on  the  sudd 
1st  day  of  January,  in  the  year  last  before  men- 
tioned, was  not  at  the  house  of  the  aaid  John 
Gibbons,  at  Abbotsbury  aforesaid,  ,nor  at  any 
other  house  or  place  at  Abbotsbury  afortiii^ 
And  so  the  jurors  aforesaid,  upon  their 
aforesaid,  do  say,  that  the  said  John  Gib 
on  the  said  31st  day  of  February,  in  the  96th 
year  aforesaid,  at  Justice-hall  aforesaid,  nnan. 
the  trial  aforesaid,  in  the  court  aforesaid,  (ttn 
same  Court  then  and  there  having  a  compeMnt 
authority  to  administer  the  said  oath  to  theaii 
John  Gibbons  in  tliat  behalf)  falsely,  malicioaa' 
ly,  wilfully,  wickedly,  and  corru|Kly,  in  man* 
ner  and  form  aforesaid,  did  commit  wpfql  ani 
corrupt  peijury,  to  the  great  displeasure  tf 
Almighty  God,  to  the  evil  example  of  al 
others  in  the  like  case  ofiendin^,  and  ^ 
the  peace  of  our  said  lord  the  kmg,  his  < 
and  dignity. 

All  the  witnesses,  on  the  back  of  the  bilb 
were  called  out  to  give  evidence ;  but  no  ens 
appearing,  except  Mary  Woodward,  and  ihi 
declaring  she  knew  nothing  of  the  matter,  ai 
officer  was  sent  to  the  prosecutors  to  attni 
the  Court ;  but  none  of  them  ap|iearing,  the 
jury  acquitted  the  defendant. 

A  second  indictment  to  the  samepnrpoae  was 
read  against  William  Clarke  ;  but  he  waa  ac- 
quitted for  want  of  evidence. 

A  third  indictment  was  preferred  aniiit 
Thomas  Greville,  for  swearing  he  sawMaiy 
Squires  at  Coombe  on  the  143i  of  Jannarys 
and  he  was  acquitted  likewise  for  want  m 
evklence. 

During  the  time  a  messenger  waa  seal  it 
theproaecutora  to  attend  the  (^rt, 
Bir.Davy,  eoonael  Ibr  the 


SI] 


^r  Wilful  and  Corrupt  Perjury, 


A.  D.  175S. 


[2S2 


tkal  opfiofiimtly  of  ftddreisiog  him&elf  to  the 

M J  loni ;  1  hare  the  honour  to  a|»(>esr  be- 
fymmr  Inr^UtkLi  in  h*-liair  nf  the  tbree  de» 
\  Un  perjury,  sup- 
Iti  :  :  M     It'll  by  lli«;m  in  ibis 

opiHi  the  triAl  ot  Miiry  Hquires,  for  the 
rj  of  Eli^eabelfi  Canmug,  tit  EnMd- 
f«Ji,  is  Juiiuafv  last. 
Glibofi«  tmU  CiArke  are  uliari^ed  i^ith  faUely 
wmnm^t  that  ^lary  Squires  was  at  Abbots^ 
IflT  fnm  the  tst  to  ll»e  9ih  of  January; 
40i  Om lile,  that  she  was  at  Coomhe  on  the 
IMk. 

If  ibclr  liTstimony  wan  true,  Mary  Squires 
»M  w^vsily  4iccuned ;  hut  it  wat  hers,  god 
ikdiff    mi^foftuae,  that   it  then    obtaiaed  ao 


m 


Tbrj  w«re  alrangrera,  uoknowd  to  every 
llic  trial. — Canniiij^  wikg  positive,  aod 
ItKii^  bt  iwltiir  meanji  coo  firmed  in  her  efi- 
ifw,  ffifaiin  was  cunvicled. 

Uji9»  ^  chari^e  uf  perjury,  great  care 
hub  &^r«  labeii,  attended  with  gfreat  expence, 
mt  ollirr  Mde,  to  search  thia  m after  to  the 
houoa  ;  rtrry  eircuniitatice  hath  been  aeruti- 
msnt,  ^inl  nfiihiti^  outitted  to  iofettigate  the 
fi^OB  tliiiitiuifhiy . 
Il  Iwth  m  long  IV bile  been  the  general  sub- 
•f  o«if«gruition,  and  hath  eogagetl  the  at- 
«f  llie  public,  more,  perhaps,  than  auy 
trMjXffllon  eier  did  before. 
BftresRlbe  oiuica  of  do  less  than  filly  ivit- 
ittrfoffwd  upon  each  of  their  indict - 
I  y«t  4nfy  ont:  of  them,  a  poor  woman, 
oideooe  ia  im material,  appears  to  pro- 

nb  ikaaftbti  Diay  occasion  various  con- 
MaHitA^  &iitl  many  false  reasons  \tilt  probably 
W  iimi  Bli  il  for  not  prosecuting  these  indict- 

It  «Bj  }>erliaps  he  attributed  to  a  compro- 
wim^^%  ORAj  be  said,  that  these  defendants 
wr  li  W  acquitted  by  consent,  and  that  the 
InfiiiBm  atgaiosl  CiinQing  Is  to  be  dropped. 
Oii  caaooi  easily  imagine  what  rumuurs 
tttid  mmj  rmlae. 
Fit  tliMi  rcMOOf  and  to  prevent  any  imptita- 
•poQ  tbme  who  are  concerned  for  the  de- 
lsM«t  I  beg  leave  to  assure  your  lordship, 
Isfl  who  bear  oie,  that  the  delendants  now 
ared  for  trial ;  that  iheir  witnesses 
*  lortlihip,  ready  to  give  iheir  tcsti* 
\  iiich  clear,  ample,  convincing  cir- 
•  would  demand  universal  &s* 
f«)ly  prove  i\\^  innucence  of  the 
I  dafeodsaUt  aod  the  fj^kiiy  of  Ehzabelh 
p'iilory  in  rvcry  particular. 
'  ans  wiincsKv,  more  in  number  than 
letar  appeared  jo  any  one  cause,  col- 
li^gcilier  at  a  vast  eirpeote,  and  frooi 
at  rmote  placn* 
Qeva  m  uibcr  evidence  also  ready  to  be  pro  - 
ibaid,  attdi  aa,  in  ita  nature,  cannr^t  deceive. 

Tbr  pnaecuCom  havn  beeu  invited  to  meet 
1^  lim  before  your  lordship  and  the  iury  ; 
iii  tw  dssnnil  vrara  the  friaads  of  the  defca- 


dants  that  this  matter  should  be  fairly  tried^ 
that  ihey  haveoifercd  to  bear  part  of  the  charges 
of  this  prosecution. 

The  public  halh  been  a  long  while  amused 
w  ith  promises,  that,  in  the  trials  of  these  in- 
dicttnents,  the  guilt  of  the  present  Uelendaols 
should  be  cleurly  manifested,  and  the  whole  of 
this  mysterious  transaction  unravelled. 

The  liine  is  come  to  perform  these  promiaev, 
and  thousands  expect  it. 

Why  do  all  these  boasters  now  hide  their  *| 
faces?  Because  they  are  covered  with  coufusioo* 

They  are  aware  how  dangerous  it  is  to  pur- 
sue a  prosecution,  founded  in  the  foulest  and 
most  daring  perjury ;  and  wisely  withdraw 
themselves  from  a  trial  which  would  involve 
them  in  ruin. 

Had  1  considered  the  case  of  the  defendants 
alone,  without  regard  to  any  other  person,  I 
should  have  thought  it  needless  to  give  the 
Court  any  trouble  upon  this  occasion* 

Thejij  are  private  countrymen,  without  any 
couDeiiona  in  this  part  of  the  world,  and  to- 
Ully  unconcerned  at  any  reports  which  may 
prevail  here : — within  the  narrow  circle  of  their 
acc|uaintanGe,  their  characters  will  remain  uo^- 
hlemished,  let  lame  do  iu  worst ;  because  the 
charge  agaiast  them  is  the  attestation  of  a  fact, 
which  aQ  their  acquaintance,  all  their  parish, 
and  their  whole  country,  know  to  be  true. 

Bui  there  is  oue,  whose  near  relation  to  thia 
great  city  makes  it  necesoary  for  me  to  say 
thus  much. 

It  is  impoesihle  for  him  to  he  unsolicitoua 
for  puhhc  approbation,  after  having  dona  so 
much  to  deserve  it. 

Yet  all  the  reproaches  which  malice  eoiitd 
sugpst  to  little,  dark,  designing  men,  have 
t>eea  levelled  at  the  chief  magistrate  of  this 
city,  only  for  doing  what  the  love  of  justice 
and  humanity  inspired  him  to  do. 

For  his  sake,  therefore,  I  have  thus  trea* 
passed  upon  your  lordship's  patience,  and  only 
beg  leave  to  add  a  few  %vords  more,  to  shew 
how  unmerited  those  reflections  were. 

As  his  lordship  was  at  the  head  of  the  com« 
mission  at  the  trial  of  Mary  Squires,  and  was 
totally  uninfluenced  by  the  infamous  endea- 
vours which  at  that  time  had  been  used  to  give 
credit  to  a  most  improbable  narrative ;  he  was 
directed,  merely  hy  a  regard  for  truth,  to 
make  further  inquiry  into  a  story  pregnant 
with  absurdities,  una  unlike  any  transaction 
that  ever  went  before  it. 

And  the  evidence  of  Elizabeth  Canning  de* 
pending  entirely  upon  this  question,  whether 
the  account  which  these  three  men  had  given 
was  true,  where  could  his  lordship  so  pro- 
perly direct  bis  inquiry,  its  to  those  placea, 
where  they  swore  they  bad  seen  her  ? 

The  success  of  that  inquiry  answered  the 
wishes  of  his  hiimauity  ;  and  the  most  indu- 
bitable proofs  oftheconvict*s  innocence  warmed 
the  royal  heart  to  mercy. 

One  should  have  thought,  that  this  conduct 
of  a  magistrate^  whose  sole  motive  to  it  was  a 
desire  of  rescuing  a  wretched,  friendless  ctwr 


SS3] 


27  GEORGE  IL 


Trial  of  Elizabeth  Canningf 


Tict,  from  the  miieries  into  which  penary  and 
popular  prejudice  had  throiTD  her,  should  at 
least  exempt  him  from  censure. 

But  his  enemies  could  nexfiv  forgire  him  the 
merit  of  this  action:  as  it  raised  him  still 
higher  in  the  esteem  of  good  men,  he  became 
more  the  object  of  ea?v ;  and  no  arts  were  un- 
essaved  to  diminish  the  reputation  he  had  so 
justly  acquired. 

Had  my  lord-mayor  been  present,  I  should 
not  have  said  so  much ;  hut  I  ha?e  been  the 
more  encouraged  to  it  from  observing,  that  his 


[S84 


lordship  withdrew  himself  as  soon  ai  these 
causes  were  called,  because  he  was  pleased  to 
tliink  it  improper  for  him  to  preside,  where  any 
thing  that  miffht  bethought  to  oonoern  himidf 
should  come  before  the  Court. 

I  have  an  apology  to  make  for  ^?iog  your 
lonlship  any  trouble,  where  there  is  no  prose- 
cution ;  but  as  the  Court  waits  for  the  ^ara 
of  a  messenger,  and  no  business  is  now  pro- 
oeeduig  upon,  1  hope  I  have,  given  no  of- 
tence.  [Vide  Sessions- paper  in  Gaaoovne's 
mayoralty,  September  1753.]   Former^E^timL 


53S,  The  Trial  of  £lizab£th  Canning,  Spinster,  for  Wilful  and 
Corrupt  Perjury,  at  Justice-Hall  in  the  Old  Bailey,  held  by 
Adjournment  on  Monday  the  29th  of  April,  Wednesday  the 
1st,  Friday  the  3d,  Saturday  the  4th,  Monday  the  6th,  Tues- 
day the  7th,  and  Wednesday  the  8th  of  May,  before  the  Right 
Hon.  Thomas  Rawlinson,  esq.  Lord  Mayor  of  the  City  of 
London,  Sir  Edward  Clive,  knt.  one  of  the  Justices  of  hb 
Majesty's  Court  of  Common  Pleas,  the  Hon.  Heneage  Legge^ 
esq.  one  of  the  Barons  of  his  Majesty's  Court  of  Exchequer, 
William  Moreton,  esq.  Recorder,  and  others  the  Justices,  &c.* 
27  George  II.  a.  d.  1754. 


At  tbe  General  Seasion  of  Oyer  &nd  Terminer, 
holden  for  the  city  of  London,  at  Juntioe-baU, 
in  the  Old -Bailey,  within  tbe  parish  of  St. 
Sepulchre,  in  the  ward  of  Farringdon  Without, 
in  London  aforesaid ;  on  Wednesday  tbe  34th 
day  of  April,  in  the  S7th  year  of  the  reign  of 
our  sovereign  lord  George  the  2d,  king  of 
Great-Britaio,  &c.  before  Thomas  Rawlinson, 
es<|.  mayor  of  the  city  of  London ;  sir  Edward 
Chve,  knt.  one  of  tne  justices  of  our  lord  the 
kiog,  of  the  Court  of  Common -pleas ;  Heneage 
^^99^j  esq.  one  of  the  barons  of  the  Exchequer 
of  our  said  lord  the  king ;  William  Moreton, 
esq.  recorder  of  the  city  of  London  ;  fUbert 
Scott,  esq^.  Samuel  Fludyer,  esq.  aldermen  of 
tbe  said  city,  and  others  their  fellows  justices 
of  onr  said  lord  the  king,  Assigned,  £c.  and 
continued  by  several  mesne  adfournmeDts  to 
Monday  the  13tb  of  May  followiug. 

On  Monday  the  29th  of  April,  1754,  the 
Court  being  opened,  the  prisoner  Elizabeth 

*  Taken  in  short-band  by  Thomas  Gurney, 
Samuel  Rudd,  and  Isaac  Barman,  all  eminent 
short- hand  writers,  appointed  by  the  Court  for 
that  purpose ;  and  afW  being  carefully  exa- 
mined together,  faithfully  transcribed  by  the 
said  Thomas  Gurney,  many  yean  short'^and 
writer  at  the  said  court.  Prmted  by  the  au- 
thority and  appointment  of  the  right  hon. 
Tbomas  Rawlinaoiii  esq.  Uui'Duyw. 


Canning  was  set  to  the  bar,  in  order  to  take  b|r 
trial  upon  the  following  indictment,  which  hid 
been  preferred  against"  her  in  the  Janeseariaa 
1753,  'and  to  which  she  had  appeared  aid 
pleaded  Not  Guilty,  in  the  February  lewiod 
following. 

Gentlemen  of  the  Jury. — William  ManniBf, 
John  Wildiog,  William  Webster,  John  Lang- 
ley  sworn;  James  Waugh,  Charles  Hoon^ 
challeoged  by  crown  ;  Richard  Frome,8worB; 
Robert  Smith,  challenged  by  defendant ;  Johi 
Scott,  William  Evered,  sworn  ;  William  Naahi 
challenged  by  crown ;  John  Carter,  swora ; 
John  Potter,  John  Kent,  John  Rogers,  WilfHUi 
Martin,  Richard  Ltnch,  Robert  Rampahireb 
challenged  by  crown  ;  Joseph  Russell,  sworv; 
Stephen  Prew,  challenged  by  crown;  Joht 
Nemes,  challenged  by  defeniiaut ;  WilkbiM 
Brathwait,  challenged  by  crown;  WinihM 
Walker,  sworn  ;  John  Mitchell,  Martin  Newth* 
challenged  by  crown ;  Benj.  Gian? ille,  chal* 
lenged  by  defendant ;  Edward  Baxter,  John 
Whipham,  challenged  by  crown  ;  WilliaA 
Parsons,  sworn;  Thomas  Stracey,  Danid 
Destleu,  challenged  by  crown  ;  Edward  Df* 
moke,  sworn ; 

Clerk  of  the  Arraign*.  Ctytt^  count  tbtM^ 

Jury. 
William  Manning,         Richard  Frome, 
William  Webster,  William  £? ered, 


Jhf  Wilful  and  Corrupt  Perjury. 


A.  D.  1754. 


[386 


RoMeD, 
Fanoott 

Dgley, 


John  Scott, 
Jobo  Carter, 
William  Walker, 
Edward  Dymoke. 


Arr.  Cryer,  make  proclamation. 

OycE,  oyez,  oyez !  If  any  one  can 
ly  lords  the  kinj^'s  justices,  the  king's 
the  king's  attorney,  on  this  inquest  to 
^  of  any  crimes  or  misdemeanors  done 
liltod  hy  thti  defendant  at  the  bar,  let 
ime  forth,  and  tbey  shall  be  heard, 
e  the  king. 

Arr,  Gentlemen  of  the  jury;  tbede- 
it  the  bar  standi  indicted  by  the  name 
Mlh  Canning,  late  of  London,  spinster; 
I  indictment  sets  forth.  That  at  the 
Mtsioa  of  the  peace  lioldeu  for  tlie 
ef  Middlesex,  at  Hicks's-hall  in  St. 
*raci«  in  the  county  aforesaid,  on  Mon- 
:  19tk  da;^  of  February,  in  the  26th  year 
itign  ot  our  present  soyereign  lord 
the  3d,  by  the  grace  of  God,  of  Great- 
Ffuce,  and  Ireland,  king,  defender  of 
I.  and  so  forth  ;  before  Liike  Uobinson, 
m  John  Cross,  baronet,  Thomas  Lane 
«e  Galliard,  esquires,  and  others  their 
jystices  of  our  said  lord  the  kiusf,  as- 

0  keep  the  peace  in  the  county  afore- 
4.  also  to  hear  and  determine  divers 

trespasses,  and  other  misdeeds  com- 

1  the  flame  county,  by  the  oath  of  £d- 
Aoe,  gent.  John  Jennm^^s,  George  Fry, 
Reynolds,  Tbcmas  Foreman,  Arthur 
k,  Isaac  George,  Lewis  Powell,  Wil- 
eeda,  Henry  Iiaines,  John  Greenbill, 
I  Hibbins,  John  Biooke,  Thomas  Bow- 
Ucbard  Westmerland,  Elias  Lock, 
Dolman,  John  Knowles,  Henry  Car- 
VfiUiam  Fort,  Thomas  Woorell,  Job 
id,  end  Robert  Rewell,  good  and  lawful 
ttie  Gonntv  aforesaid,  then  and  there 
■i  charged  to  enquire  for  our  said  lord 
\t  for  the  body  of  the  said  county  ;  it 
mted  that  Mary  Squires,  late  of  the 
f  Enfield,  in  the  county  of  Middlesex, 
flo  the  Sd  day  of  January,  in  the  26th 
the  rei|p  of  our  sovereign  lord  George 
king  ot  Great-Britain,  &c.  with  force 
«,  at  the  parish  aforesaid,  in  the  county 
i,  in  the  dwelliog-house  of  one  Su- 
l¥eUb,  there  situate,  upon  one  Elizabeth 
:,  spinster,  in  the  peace  of  God  and  our 
1  the  king  then  and  there  being,  feloni- 
d  make  an  atsaolt,  and  her  the  said 
tb  in  bodily  fear  and  danger  of  her  life 
d  there  fekmiously  did  put;  and  one 
Aays  of  the  value  of  ten  shillings,  of  the 
ad  chattels  of  the  said  Elizabeth,  from 
■on  and  against  the  will  of  the  said 
th,  in  the  dwelling-house  aforesaid, 
mI  there,  Tiolently  and  feloniously  did 
ke,  and  carry  away,  against  the  peace 
nid  lord  Ihe  king,  his  crown  and  dig- 
nd  therenpoo  such  proceedings  were 
t  aftcrwarda  (to  wit)  at  the  delivery  of 
efeiir  mid  hwd  the  king,  of  Mewgate, 


f 


holden  for  the  county  of  Middlesex,  at  Justice- 
hall  in  the  Old-Bailey,  in  the  suburbs  of  the 
city  of  London,  on  Wednesday  the  91st  of 
Feoruary,  in  the  26th  year  of  the  reign  of  our 
said  lord  the  king,  before  sir  Crisp  Gascoyne, 
knight,  mayor  of  the  city  of  London ;  sir 
Martin  Wright,  knight,  one  of  the  justices  of 
our  said  lord  the  king,  assigned  fo  hold  pleas 
before  the  king  himself;  Nathaniel  Gundrv, 
esquire,  one  of  the  justices  of  our  said  lord  the 
king  of  the  court  of  Common  Pleas;  sir 
Ricnard  Adams,  knight,  one  of  the  barons  of 
the  court  of  Exchequer  of  our  said  lord  the 
king,  and  others  their  fellows  iustices  of  our 
said  lord  the  king,  assigned  to  deli?er  bis  jgaol 
of  Newgate  of  the  prisoners  therein  then  bein^; 
and  before  whom  the  indictment  aforesaid, 
against  the  said  Mary  Squires,  was  then  depend- 
ing ;  came  the  said  Mary  Squires  in  the  same 
indictment  named,  under  the  custody  of  sir 
Charles  Asgill,  knight,  and  sir  Richard  GlynUp 
knight,  sheriflb  of  the  said  coanly  (into  vihose 
custody  in  the  gaol  of  Newgate  aforesaid,  she 
the  said  Mary  Squires,  for  the  cause  aforesaid, 
had  been  before  committed):  and  the  said 
Mary  Squires  being  then  brought  to  the  bar  there 
in  her  proper  person,  and  beinff  then  and  there 
asked  now  she  would  be  acc^uitted  of  the  pre- 
misses specified  in  the  said  indictment  as  store* 
said,  she  the  said  M  ary  Squires  did  then  and  there 
say,  that  she  was  not  guilty  thereof;  and  there- 
upon for  good  and  ill  she  put  herself  upon  the 
country:  whereupon  such  proceedings  were  had, 
that  afterwards  (to  wit),  at  the  same  session  of 
the  delivery  of  the  gaol  aforesaid,  holden  for  the 
county  aforesaid,  at  Justice- hall  aforesaid,  on 
the  said  Wednesday  the  21st  day  of  February, 
in  the  26ib  year  aforesaid,  and  before  the  same 
justices  of  our  said  lord  the  king,  in  that  be^ 
half  aliove-named,  and  others  their  fellows 
aforesaid,  by  a  certain  jury  of  the  county  be- 
tween our  said  lord  the  king,  and  the  said 
Mary  Squires  in  that  behalf  in  due  manner 
chosen,  tried  and  sworn,  the  issue  aforesaid  was 
tried.  And  the  said  present  jurors  for  our  said 
lord  the  king,  now  upon  their  oath  aforessid, 
do  further  present,  that  upon  the  said  trial  be- 
tween our  said  lord  the  kin^  and  the  said  Mary 
Squires,  at  London  aforesaid,  (that  is  to  say)  at 
the  parish  of  St  Sepulchre,  in  the  ward  ofTar- 
ringdon  without,  in  London  aforesaid,  (to  wit) 
at  Justice-hall  aforesaid,  in  open  court  aforesaid, 
the  said  Elizabeth  Canning,  late  of  London, 
spinster,  did  appear  as  a  witness  for  and  on  be- 
half of  our  said  lord  the  king,  against  the  said 
Mary  Souires ;  and  the  said  Elizabeth  Canning 
then  and  there  did,  before  the  said  justices  last 
named,  in  open  court  aforesaid,  take  her  corpo- 
ral oath,  and  was  duly  sworn  upon  the  holy 
gospel  of  God,  to  speak  the  truth,  the  whole 
truth,  and  nothing  but  the  truth,  of  and  upon 
the  premisses  so  as  aforesaid  put  in  issue  he- 
tween  our  said  lord  the  king  and  the  said  Mary 
Squires  (the  same  justices  then  and  there  hay- 
ing a  competent  authority  to  administer  an  oath 
to  the  said  Elizabeth  Canning  in  that  behalf.) 
And  the  said  Elizabeth  Canning  being  so 


£87]  27  GEORGE  11. 

■worn,  and  not  hiring  the  fear  of  God  before 
her  eyes,  hat  being  mored  and  seduced  by  the 
inftigatioo  of  the  devil,  and  hariog  no  regard 
tfbr  ibe  lans  and  statutes  of  this  realm,  nor  fear- 
ing the  ponisbments  therein  contained,  and  on- 
hwfully,  viickedly,  malipously,  and  delibe- 
Tately  advising,  contriving,  and  intending  to 
pervert  the  doe  coarse  of  b«r  and  justice,  and 
to  cause  and  procure  the  said  Mary  Squires  un- 
truly to  be  conficted  of  Ibe  felony  and  robbery 
charged  upon  her  in  and  by  the  indictment 
aforesaid,  afterwards,  (to  wit)  upon  the  21st 
day  of  February,  in  the  26th  year  after- 
wards, before  the  justices  of  our  said  lord  the 
king  last  above-named,  at  the  same  session 
of  delivery  of  the  gaol  aforesaid,  at  London 
aforesaid,  (that  is  to  say)  at  the  jiarish  of  St. 
Sepulchre  aforesaid,  in  the  ward  or  Farringdon 
Without  aforesaid,  in  London  aforesaid,  did 
falsely,  wickedly,  voluntarily,  and  comiptly, 
by  her  own  proper  act  and  consent,  and  or  her 
cwn  most  wicked  and  cormpt  mind,  upon  her 
said  oath,  so  by  her  taken  as  aforesaid,  say,  de- 
pose, swear,  and  give  in  evidence  (among  other 
things)  to  tbe  jurors  of  the  jury,  who  were 
then  and  there  in  due  manner  chosen,  tried, 
and  sworn  to  try  the  said  issue,  Tliat  she  the 
■aid  Elizabeth  Canning  had  been  at  Salt-Peter 
Bank  to  see  an  uncle  and  aunt,  and  stayed 
there  till  about  nine  at  night,  on  the  1st  day  of 
January  (meaning  the  month  of  January  in  the 
■aid  indictment  mentioned):  that  then  her 
uncle  and  aunt  came  with  her  as  far  w  Aldgate, 
when  they  parted :  that  she  the  said  Elizalieth 
Canning  was  then  alone,  so  came  down 
Houndraitch  and  over  Moorflelds  by  Bedlam 
wall :  that  tliere  two  lusty  men,  both  in  great 
coats,  laid  hold  of  her :  that  they  took  her  to 
the  prisoner  WcUh's  house  (meaning  the  dwell- 
ing house  of  the  said  Susannah  Wells  in  the 
said  indictment  mentioned,  situate  at  Enfield 
aforesaid,  in  the  county  aforesaid).  And  tlie 
said  Elizabeth  Canning  being  then  and  there, 
at  and  upon  tbe  said  trial,  asked  and  examined 
upon  her  said  oath,  at  what  time  she  thought  it 
might  be  that  she  was  taken  to  the  said 
Susannah  Wells's  honse ;  she  the  said  Eliza- 
beth Canning  then  and  there,  in  the  said  <»urt, 
at  that  trial,  falsely,  wilfully,  and  corruptly, 
upon  her  said  oath,  said,  deposed,  answered, 
and  gave  evidence  to  the  jurors  of  the  said  jury, 
so  as  aforesaid  chosen,  tried  and  sworn  to  try 
the  said  issue,  that  as  near  as  she  could  think, 
it  was  about  four  o'clock  in  the  morning  (mean- 
ing the  morning  of  the  said  2nd  day  of  Ja- 
nuary^. The  indictment,  gentlemen,  farther 
sets  forth,  tliat  the  said  Elizabeth  Canning, 
being  so  sworn  as  aforesaid,  did  then  and  there, 
upon  the  said  trial,  farther  falsely,  voluntarily, 
and  corruptly,  by  her  own  proper  act  and  con- 
sent, and  of  her  own  most  wicked  aud  cormpt 
mind,  upon  her  said  oath  so  by  her  taken  as 
■foresaid,  say,  depose,  swear,  and  give  in  evi- 
dence (among  other  thiiiss)  to  the  jnrors  of  the 
■aid  jury,  so  chosen,  tried,  and  sworn  to  try  the 
said  issue  as  aforesaid,  that  she  the  said  Elizabeth 
Canning  saw  the  gy  psey  woman  Squires  (roean- 
1 


Trial  ofElixabeik  Canmng, 


ISSS 


log  the  above-named  Mary  Squiics)  sitting  m  a 
chair  (meanmg  sitting  in  a  chair  in  the  said 
dwelling-house).  That  as  soon  as  she  the  said 
Elizabeth  Canning  was  brought  in,  (meannig 
into  the  said  dwdling-hooae)  the  said  Mary 
Squires  took  her  by  the  hand,  and  asked  her  if 
she  chose  to  ifo  their  way,  saying,  that  if  she 
did,  she  shonhl  have  fine  clothes.  That  sbu 
the  said  Elizabeth  CanniiHBr  »d,  No.  That 
then  she  the  said  Mary  Squires  went  and  took  a 
knife  out  of  a  dresser -drawer,  and  cut  the  lace 
of  ber  the  said  Elizabeth  Canning's  stays,  and 
took  them  (meaning  the  said  Eluubeth  Cao- 
ntng*s  stays)  from  her.  That  she  the  said 
Alary  Squires  gave  her  the  said  Elizabeth 
CanniM^  a  slap  on  the  face:  that  ahe  tbe  said 
Mar^  [Quires  pushed  her  up  stairs  (meaniDg 
certain  stairs  leading  from  the  kitchen  of  the  aaS 
dwelling  house)  into  a  certain  room  called  the 
workshop,  bekmging  to  the  said  dwelling-houat 
from  out  of  the  kitchen  (meaning  the  kitdien  of 
the  said  dwelling-honse)  where  thejr  were. 
And  the  said  Elizabeth  Canning  bemg  thea 
and  there,  upon  the  said  trial,  asked  ai^  exa- 
mined upon  her  said  oath, concerning  the  name 
of  the  place  she  was  put  into ;  she  the  sakt 
Elizabeth  Canning  then  and  there,  at  that  trial, 
falsely,  wilfully,  and  corroptly,  upon  her  said 
oath  deposed,  answered,  and  gave  in  evidence 
to  the  jurors  of  the  said  jury,  so  as  aforesaid 
chosen,  tried,  and  sworn  to  try  the  said  issue, 
that  they  call  it  (meaning  the  said  room  called 
the  work -shop)  the  hay-lof\  (meaning  by 
such  answer  so  given  to  such  question,  that 
she  I  he  said  Elizabeth  Canning  had  been 
pushed  up  the  said  stairs  hy  tlie  said  Mary 
Squires  into  the  said  room  called  tbe  work- 
shop). The  indictment,  irentlemen,  further 
sets  forth,  that  the  said  Elizabeth  Cannmff 
being  so  sworn  as  aforesaid,  did  then  and 
there,  upon  the  said  trial,  further  fidsely, 
voluntarily,  and  corruptly,  by  her  own  proper 
act  and  consent,  and  of  her  own  most  wicnd 
and  corrupt  mind,  upon  her  said  oath,  so  by 
her  taken  as  aforesaid,  say,  depose,  swear,  and 
give  in  evidence  (among  other  things)  to  the 
jurors  of  the  said  jury  so  chosen,  tried«  and 
sworn  to  try  the  said  issue  as  aforesaid.  That 
tbe  room-door  was  shut  as  soon  as  the  aaid 
Elizabeth  Canning  was  put  up:  that  afler  she 
the  said  Mary  Squires  shut  the  door,  she  said, 
that  if  ever  she  heani  the  said  Elizabeth  Can- 
ning stir  or  move,  she  would  cut  her  the  aaid 
Elizabeth  Canning's  throat.  That  when  the 
day  light  (meaning  the  day-light  of  the  2d  of 
January)  appeared,  she  could  (meaning  that 
she  did)  see  about  the  room  (again  meaning 
the  said  room  called  the  work-shon) :  that  there 
(again  meaning  the  said  room  called  the  work- 
shop) was  a  fire-place  and  grate  in  it:  that 
there  (again  meaning  the  said  room  called  the 
work-shop)  was  a  black  pitcher  not  quite  foil 
of  water,  and  about  twenty-four  pieces  of  bread ; 
and  that  a  certain  pitcher  then  and  there  pro- 
duced to  the  said  Elizabeth  Canning,  at  tbe 
time  of  her  gif  ing  her  evidence  as  afuresaki, 
was  the  pitcher,  and  that  it  was  full  f ' — 


S89] 


fir  Wilful  and,  Cfrrrufi  Perjufif^ 


A.  D,  1754. 


[290 


Siixilbtlli  CAnnmc^    '-m*-'  ifien  ami  there,  at  ]  house  pq  ibesaiiJ  ad  <>»  Jnauary  ;  ami  *vliereoj,J 

\  X\ti*  s4it|  ! 

ill' 


rre, 


ftlM  nT  witpr)  In  netr  ilie  neck.    And  the  said  I  nrng  was  oat  taken  or  brooglit  into  ihe  «ai4l 
•    -    -  i»ifn  ami  there,  at  ]  house  pQ  the  said  2d  <>♦  J HDuary;  and  *vlieretti,J 

^^*  a^keit  and  exa^  in  trutb  and  iu  <iict,  ^he  the  said  iilliziheilil 
i^vv  loinr  *.iiM  ,-*iij_  I  Canning  was  not  on  the  t^aid  id  day  nf  JaDuary^j 
'[) ;  !  or  at  any  <»ll»er  lime  in  llie  said  month  of  Ja*] 
nuary,  iti  the  said  ttous^  ;  and  whereas,  in  IrutliJ 
mnd  in  fact,  she  the  «aid  Elizabeth  Canuinfl 
did  ooti  on  ih&said  'id  dav  of  Juijuary,  see  ili«1 
said  Mary  &k}uirca  Ln  tlie  said  hnuiie;  on4| 
whereaSf  in  truth  and  iu  fact,  she  Ihe  &aii|l 
t^lisiab<»lh  CanutQ^  did  not,  at  any  other  tiinel 
in  the  said  month  of  January^  see  ihe  taidj 
Mary  Squires  iu  the  said  home  ;  and  whcrdfj 
as,  ui  truth  and  in  fact,  she  the  said  IMaryj 
Squires,  on  the  said  2d  day  of  Janunryfl 
wvi^  at  Abbutshury  in  the  county  at'  r><ir»ct|l 
and  was  not  on  that  day  in  the  said  houfieil 
nnd  wtierea^,  in  truth  and  in  fact,  ihc  saitli 
Mary  iSf|nires  diti  not  lakr  her  the  said  Elixftf^ 
he  til  Canninu;-  by  tite  hand,  and  ask  her  if  stii 
uliose  to  go  their  way,  sayinj^,  that  if  khc 
she  should  have  fine  rlothes  ;  and  nhereas,  ii|l 
Irutb  and  in  fact,  the  said  Mary  S(|nires  diiH 
not  Iflke  her  the  *^aid  Ehzabetb  Cantting  byi 
the  band,  and  ubk  her  if  •the  chose  to  go  their 
way;    and   uherea^,  in  truth  aud  in  ^ct,  Uif 


lurt,  at  that  trial,  tiaWiyi  wilfully, 
A,  ojimi  her  said  oaih,  said,  de- 
»«nd  jjatr:  in  miilcnre  to  the 
jury,  bO  :i»i  idort^siiid  choaen, 
tini,  atitl  ^uuvii  to  try  ibe  ttatd  i^sne,  a  iiiunth 
1^  Um  iirrckiii,  all  hui  a  fL*w  hours.  The  in- 
Ml»«i*i  '      'mt  sets  forth,  that 

:  hfinGT  sd  B\f  om  as 
nitrt'  u|it>niht'  $did  trial, 
ly,  folunliiiily,  and  cm  * 
'""^  '^'  *    'd  consent,  and 
^it  ntinf),  upon 

.! --   _  aid,  say,  d*;- 

and  i^ire  in  evidc^nce  (ninoitgat 
to  the  jurors  of  the  ^aid  jniy,  so 
aud  sworn  to  try  the  said  i^ne 
at  ntnrr^Ati,  th?it  im  the  Wednesday  (meMnioisr 
^^  Itb  dny  of  the  f^aid  uiontli  of 

J*  iho  Hjiid    Ehzabetli  Canning 

.  .  uUu  saw  homeboiJy    look  ihrougb 
i  the  door  ^^'T^lin  meaning  ijie  door 


I,. 

kr! 

ciNncm,  iii«d< 


a«il  room  catli 
laid  Elis^abeth 


akMit 


ilbcirja 

CAnAioiT   bi 

U(»  at 

\Uaw   '■ '  ■ 


lit  i: 
and 


'  I  k -shop) ;    that 

<  '  t  out,  (mean- 

u  (I  tlie  workshop) 

loan,  on  u  l^louduy, 

li  iiiky  of  the  said 

the  $aid  E]iznl»eth 

!   there  four  tvceks, 

lie  the  said   Eliza- 

1  a  board   ibitt  was 

ot  a  window,  (mraaing 

af^indf  to  Che  ssiid  room 

d  got  out  tbire  (itieaii- 


«il  kaj-li^M,  ('i^airi 


said  Mary  Squireji  did  not  go  and  take  a  knifir 
out  uf  a  drrsser-drawer,  and  cut  the  lace  of  hec 
the  sail]  Eti/abetb  Canniui»'s  slays  ^nd  tak 
thetn  from  her;  and  whereas,  iu  truth  and  i|i| 
fact,  the  said  Mary  Sijuires  did  not  cut  the  Inct 
of  ber  the  .vuid   t.li/iiUeib    Canning's  syiyM^I 
atid   wbtreas,  in  truth  and  in  fuel,  the  saill 
IMary  Si]uirt^  did  not  take  ihe  said  Etizabctlil 
Canning's  slayi  from  her;    and  whereas,  ill 
irutb  and  in  fart,  the  said  Alary  Squires  did  not 
ifive  the  said  Eiizabeih  Cannins:  a  slap  on  the 
face ;  and  whereas,  in  Irutb  and  in  frtrt^  the 
said  Miiry  8<fuires  did  jiot  push  the  ^ 
j<low) :    that  she  the  said  I  ^>clb  Cannin*^  up  the  said  stairs  leai  ii  , 

£  touk  »n  old  sort  of  a  bed-  I  the  said  kitchen  inU^  the  s»id  room  lulled  tiipl 
handkerchief,  that  were  in  the  I  warkshop;    and,  whereas,  in  Irutb  and  in  facLI 
mi;iiiing  the  said  room  !  the  said  Mary  Squires  did  not  push  Ihe  said  I 
^  — * — **  "^^     Elizabeth  Cunning;  upon  the  ssid  stairs  into  t|ifr| 
said  room  called  the  workshop ;  and  whereas* ' 
iu  truth  and  in  fui't»  the  tiaid  Mory  !^quires  did 
nut  push  the  said  EIlzAbetb  Cannint^  up  any 
stairs  into  the  said  room  called  the  worKsbop,  or 
hay-loft,  or  into  any  other  room  or  plm  r'  uluii- 
soever;  ajul  \ihereas,  in  truth  and  ^ 
said  Mary  Squires  did  not  say,  that  ji  r  i 

heard  the  said  Elizabeth  Canning  stir  or  move^J 
she  wuuld  cut  ber  throat ;  and  whereas,  in  trutb  ^ 
and  in  fact,  when  ihe  day-lit^ht  of  the  said  tf^* 
thy  of  January  appe^r^d,  she  ihe  said  Eliza- 
beth Canning  could  aa)^ee  about  the  said  room 
called  the  work^him;   and  whereas,  iu  truth 
and  in  fact,  the  said  Khzuhetlj  Cannintf  did  not,  ^ 
on  the  satd  '^d  day  iif  January,  sec  about  tin 
s^id  room  called  the  workshop  :        '  "  *    - 
in  truth  and  iu  fact,  the  said  El< 
was  not,  on  the  sai«l  '' '   '  *  •  '  ^ 

said  room  culled  the  j. 

or     I»I;K  O     111  ^^rl!^iTl,r  t  .......  ; 

Md  HI   lad  J 

I  _  i.ot,  ai  any  •■  e  j 

bet Mre?u  tbe  said  ^d  day^  of  Jiuuary^  aaU  lb#| 
U 


iHe  w>jik--<hnp)  atnl  lay  in  a  grate  of  the 
(tynaiiini^theclMiimeyoftbe  said  room 
le  work -3( bop).    And  the  said  Etizabetb 
Cmmn^  bcin^  tbeu  and  there,  at  and  upon 
(kt  inokl.  aak*-d  ami  <  xamined  lipon  ber  said 


Olik,  cofto*fri»ui' 

tbe  time  she  drank  all  ber 

•%itr. 

the  water  she  so  as  albre- 

«i4fii 

nir  lo  lidve  been  in  the  said 

Hiiitii 

^eth  Canning  tlien 

tt^llSi. 

t'li  trial,  falsely  and 

somppti 

..Aii  imib,  KaitI,  ileposed, 

mtmm^ 

'  videncc  to  the  jurors  of 

«<f^.i 

1  chosen,  tried,  and 

mwn 

that  she  drank  all 

tliat  OmstHug  nji 

nhc  so  as  aforesaid 

fiitmni^ancvt 

t  m  tbe  said  pitcher) 

aliMt  bolf  2n  f 

'       T'^tt  out  of  tbe 

fiviii  (mtfAii 

led  Ihe  wfirk- 

CMdkltxabr 

■  i  tact,  she  the 

out,  about  4  o'clock 

iillia  ixioirri 

li  dav  of  January, 
lid   aw  ell  ini;- house 

.y»fit. 

of  thf^ 

M  ;  and  whesreas,  in 

*lm  tbv  aanl  Eb^^abetb  Can- 

SOI] 


27  GEORGE  II. 


Trial  ofElizabet'h  Canning, 


[998 


nM  29th  day  of  January,  in  the  said  room 
called  the  workshop,  or  in  any  other  room  or 
place  helon^ng  to  ihe  said  dwellini^'- house ; 
and  whereab,  in  truth  and  in  fact,  there  was 
not,  on  tlie  said  fid  day  of  January,  any  black 
pitcher,  and  about  24  pieces  of  bread,  or  any 
other  numlier  of  pieces  of  bread,  in  the  said 
room  called  the  workshop ;  aud  whereas,  in 
truth  and  in  fact,  the  pitcher  so  producetl  to  the 
said  Elizabeth  Canning,  at  the  time  of  her  giv- 
inif  eridence  as  aforesaid,  was  not,  on  the  said 
2d  day  of  January,  in  Ihe  said  room  called  the 
workshop ;  and  whereas  the  ^aid  pitcher  so 
produced  to  her  the  said  Elizabeth  Canning  as 
aforesaid,  was  not,  on  the  2d  day  of  January, 
foil  of  wattfr,  to  near  the  neck  ;  and  whereas, 
in  truth  and  in  fact,  the  Said  Elizabeth  Cannini; 
did  not  drink  uU  the  water,  in  and  by  her  said 
evidence  pretended  to  have  been  in  such  pit- 
cher, about  half  an  hour  before  the  tiiine,  she 
80  as  aforesaid  gave  in  evidence,  that  she  got 
out  of  the  said  room  calleil  the  workshop  ;  aud 
whereas,  in  truth  and  in  fact,  she  the  said  Eli- 
zabeth Canning  did  not,  at  any  time  on  the 
said  29th  day  of  January,  or  at  any  other  time 
between  the  said  2d  day  of  January  and  the 
said  29tli  day  of  January,  drink  any  water  out 
of  the  said  pitcher,  in  the  said  room  called  the 
workshop,  ur  in  any  other  place  or  room  be- 
hingiiig  to  the  said  house;  and  iihereas.  in 
truth  and  in  fact,  the  said  Elizabeth  Canning 
did  not  continue  in  the  saitl  room  called  the 
workshop  a  month  by  the  weeks,  all  hut  a  few 
hours;  and  uhereas,  iu  truth  and  in  fact,  the 
said  Elizabeth  Canning  was  not,  at  any  time 
in  the  said  month  of  January,  confined  in  the 
said  room  culled  the  workshop  ;  and  whereas, 
in  truth  and  in  fact,  the  said  Elizabeth  Can- 
ning tvns  not,  in  the  said  month  of  January 
confined  in  any  other  n»oin  of  or  belonging  to 
the  sniil  houseof  the  said  Susannah  Wells,  for 
one  month  by  the  weeks,  all  but  a  few  hours, 
or  for  any  other  spoce  of  time  ;  and  whereas, 
in  truth  and  in  fact,  she  the  said  Elizubelh 
Cannincr  did  not,  on  the  said  Wednesday  the 
said  24ih  of  January,  see  any  person  look 
through  the  crack  of  the  door  ot  the  said  room 
called  the  workshop  ;  and  whereas,  in  truth 
and  in  fact,  the  said  Elizabeth  Canning  did 
not,  at  any  other  time  in  the  said  month  of  Ja- 
nuary, see  any  |ien(oii  look  through  the  crack 
of  the  said  door  ;  and  whereas,  in  truth  and  in 
fact,  the  sniil  Elizabeth  Cunning  did  not  break 
down  apy  board  that  had  been  nailed  up  at  the 
inside  of  any  window  (iff  or  belonging  to  the 
said  room  called  the  iMM^shop  ;  and  whereas, 
in  truth  and  hi  fact,  sIM;  the  said  Elizabeth 
Canning  did  not  get  out  of  the  said  room  called 
the  Workshop  on  Monday  the  said  29lh  day  of 
January  ;  and  whereas,  in  truth  and  in  fact, 
she  the  said  Elizal>eth  Canning  did  not  get  out 
of  the  said  window ;  and  whereas,  in  truth  and 
in  fact,  she  the  said  Elizabeth  Canning  did  not 
get  out  of  any  window  of  or  belonging  to  the 
Slid  mom  calle«l  the  workshop ;  anil  whereas, 
in  truth  And  in  fact,  the  said  Elizabeth  Can- 
ning did  not  take  au  ok!  sort  of  n  bed-gown  and 


a  handkerchief,  that  were  in  the  uid 
called  the  workshop,  aud  lay  in  a  grate  of  the 
chimney  of  the  said  «-oom ;  and  whereu,  in 
tnith  and  in  fact,  she  the  said  Elizabeth  C^* 
ning  did  not  take  any  bed-gown  or  handker- 
chief oat  of  a  grate  in  the  chimney  in  the  said 
room  ;  and  whereas,  in  truth  and  in  fact,  there 
was  not  any  grate  in  the  chimney  of  the  nid 
room  on  the  2d  day  of  January  ;  and  whereaa, 
there  was  not  any  grate  in  the  chimney  of  the 
said  room,  at  any  other  time,  during  the  time 
she  the  said  Elizabeth  Canning  so  as  afbrenid 
gave  in  evidence  that  she  continued  or  had  been 
confined  in  the  said  room  called  the  workebop; 
and  whereas,  in  truth  and  in  fact,  there  waa  not, 
on  tlie  said  2d  day  of  January,  or  at  any  other 
time  between  that  day  and  the  said  29th  day  ef 
January,  any  grate'  in  the  fire-place  of  the 
said  room  ralle<7  the  workshop,  as  she  the  said 
Elizabeth  Canning,  by  her  false  and  cormpl 
testimony  aforesaid,  at  and  upon  the  said  trial, 
did  most  falsely,  voluntarily,  and  corrnptly,  by 
her  own  |)roper  act  and  consent,  upon  her  vaid 
oath,  so  taken  as  aforesaid,  say,  depose,  swear, 
and  give  in  evidence  to  the  jurors  of  the  said 
jury,  in  manner  aforesaid.  And  then,  gentle 
men,  the  indictment  in  this  place  conandcs. 
That  she  the  said  Elizabeth  Canning,  at  and 
upon  the  said  trial,  upon  the  said  21st  day  of 
February,  in  the  2(>tli  year  aforesaid,  at  Loo- 
don  aforesaid,  (that  is  to  say)  at  the  said  parish 
of  St.  Sepulchre,  in  thesaid  ward  of  Farringden 
without,  in  London  aforesaid,  before  the  said 
justices  of  our  said  lord  the  kiufir  last  above- 
named,  and  others  their  fellows  aforesaid,  by 
her  own  proper  act  and  consent,  and  of  hk 
own  most  wicked  and  corrupt  mind,  in  manner 
and  form  aforesaid,  did  falsely,  voluntarily, 
and  corruptly',  ofton  her  said  oath,  so  taken  as 
nforesuid,  commit  wilful  and  corrupt  perjury, 
to  the  great  displeasure  of  Almighty  God,  n 
conteu)pt  of  oitr  said  lord  the  king  and  bis 
laws,  to  the  evil  and  pernicious  example  of  all 
others  in  the  like  case  offending,  and  agaia!^ 
the  peace  of  unr  said  lord  the  king,  hiscrowtt 
and  dignity.  The  indictment,  gentlemen,  for* 
ther  charges,  that  at  the  session  of  the  delivery 
of  the  gaol  ot  our  said  lord  the  kin  jf,  of  New- 
gate, holden  for  the  county  of  Middlesex,  it 
Justice-hall  in  the  Old-Bniley,  in  the  aiibnrhi 
of  the  city  of  Tiondon,  on  Wednesday  the  Sltt 
day  of  February,  in  the  26lh  year  of  the  reign 
of  our  said  sovereign  lord  George  tbe  second, 
king  of  Great  Britain,  &c.  before  sir  Crisp 
Gascoyne,  mayor  of  the  city  of  London ;  nr 
Martin  Wright,  knight,  one  of  the  justices  ef 
our  said  lord  the  king,  assigned  to  hold  pleas 
before  the  king  himself;  Nathaniel  Gundrv, 
esq.  one  of  the  justices  of  our  said  lord  tw 
king  of  the  Court  of  Common  Pleas;  air 
Riohanl  Adams,  knight,  one  of  tbe  barons  of 
the  CyfMirt  of  Exchequer  of  our  said  lord  tbt 
king,  and  others  their  fellow  justices  of  our  aaid 
loni  the  king,  assigned  to  deliver  the  said  gaOl 
of  Newgate  of  the  prisoners  therein  being;  oat 
Mary  Squires  was  in  due  form  of  law,  tmd  1^ 
a  jury  of  the  country,  duly  taken  between  ow 


I 


m] 


Juf  Wilfid  and  Corrupt  Perjury, 


A.  U,  1154^ 


[294 


mM  ior4  Ili9  kh%^  und  Uieftaid  Mary  Squires 
lilh»lb<^t»""  ";..w,  MioUier indictmt^nt,  for  the 
(anninir,  Kpiiislcr^  of  a 

-:L1«  vi'  It'll  vinlllii<rs^  uf  illC 

1  of  lier  1  ^izaljeth, 

fdi^  ^     i;*use  of  oiir   -  liWrlls, 

«i{d<iw,  Biiuatr  m  the  parish  of  Koiieldf  in  tbe 

vUoyunty  of   ,HtiJd(t;s4fXf  on  the  said  2d  day 

if  Jtonf  *e   '26lli  ye«r  aforesaid;    and 

lltft«Ao  i  lA6t  iiientioneil  triafi  Elisca> 

kl^  Caiuiui^,   lale  of  Lcmdon,  spinster,   did 

umI  there  appear  lut  a  witties«i  fur  and  in 

'■d   lonl   ihe   kiu^,  »!jraiust  the 

> ;  atid  she  tlie  ^id  ElizHbeili 

iig  ttin  tutu  and  there,  before  the  said 

jipiittl   te»t'tijentioned,  iu  open  court  iifore* 

■idyteke  brr  f-'p^^r  >i  oath,  and  was  duly  s  worn 

I  IIm  bolv  I  God,  that  tho  evidence 

tW  *h    -.-.  ^-  e   for  our  said  lord  the 

I  uifeiwl  the  Kiud  Mary  Haitirt.^,  should  be 

.ratia.  IYk;  x%  hole  lrutU,*atid  nothing  but  the 

Ust'tiifniioned  justices  then 

:  ;i  competent  auihorlty  to  ad- 

'  i^  satd  oatli  to  her  the  said  Eliza- 

t  Caii«iiiB  in  that  behalf) ;  and  she  the  said 

Hanninij  Motf  so  sworn,  and  not 

m  ft^r  of  Gild  before  her  eyes,  but 

'    ,     ■       ■   red  by  the  instii^'ation  of 

I  i  1st  day  of  Felmary, 

^U*r  /rjm  \*:\v  :imit  Slid,  at  London  aforesaid, 

{!•  wii)  at  if»e  parish  of  Ht,  Sepulchit-»  in   the 

d  iif  r- '  --   •  !on  U'ithout  aforesaid,  in  Lon- 

ilii  lore   the   &aid  justices   last- 

,  i..  i.,~    ftn  coartal#resaid^  did  falsely, 

liiliilgly,  aod  corruptly,  by  her  o^tn  proper 

— ' — ■  coiistnt,  say,  depo^kC,  swear,  ami  givir 

r  tu  the  jurors  of  the  satil  jury,  ac- 

I  ihe  pitrporl  anit  effect  fid  Jo  win  |;  ;  I 

Jn^  hr^fceh  the  said  Elizuhelh  Canning) 

I  to  SaH  Petre-tiank   to  see  an  uncle 

hji  naiti«  ta   Thomas   Colky  .-    J 

aniii^    herself   the  stiid   £iiz:d»eth 

je)  Mi  out  from  home  about  i^leveu  in 

Utf^fQQOOo,  and  stayed  there  tdl  ubout  nine 

•|j^|lu«  ufi  the  lilt  dsy  of  January  (meaning 

ii  igL  dmy  of  January  now  lai»t  past) ;  then 

Mff  90^  »i»d    Htr- •    f  "T  r'   with    inc  (again 

iMfnu^lf  li  !  Ji/Jibeih  Can ti tug) 

Aldgilf,  ...i.        vo  parted:  1  (^gaiu 

berM^ll  the  said   Elixaheth  Cauniu^) 

mI  mk.  h(>  came  flowa  Houndjiditch, 

^ds  by   Bedlam  wall;   there 

Hith  in  (.rreat  coah»i  Uid  [lold 

And  ihiii  the  «aid  Elizabeth  Canning, 

f  to  Kwarn,  (hit  then  anti  there,  uj»on  the 

last-inrnttoned    trial,    falsely,    wdlingly, 

loBrrii|itJy,  hy  htr  own  proper  act  and  Ciin 


,iiy,  d<. 
B  Juror* 

at^i 


Cmnimsi 


Ilia  ilii(Jl  ..,.    . 
aitoate    at 

•foresaid). 


tr^  and  ijiie  in  evidence 

■  ^  jury,  according  ta  the 

i:^,  (that  ii  Iti  say) 

^0   fneii)   look  me 

Ii     ii4c   said     Elizahelh 

r  WeUft^at  hou^'C  (iiifan 

-<^i    of  llir  8aid    Su»anoah 

Enth  lit    iitiHt'^auf^   in   the 

Auti    thui    ?iht-   the  said 


i  C«AuiDg  bcitig  then  and  there,  upoo 


the  said  trial,  asked  and  examined  upon  be 
said  Oiith,  concerning  tlie  time  of  her  hetng  i 
tiiken  to  the  said  house  of  the  said  Sosannali 
Wells  ;  she  the  said  Elizabeth  CAuntng,  hrin^ 
BO  swurn«  did  Iheti  and  there  fni  ther  Iklselyij 
willingly,  and  corruptly,  by  her  own  proper 
act  and  consent,  say*  depose,  answer,  and  give^ 
in  evidence,  accordhig  to  the  purport  and  ef«1 
feet  following,  (that  it  to  say)  As   neur  as  IJ 
(again    meaning    heraelf    the  said  Elizahetll] 
Canrting)  can  think,  it  was  about  four  o*c'oc 
in  the  morning  (meaning  the  morning  of  th 
Ud  day  of  ihe  said  month  of  January)*     An 
that  she  the  »^aitl  Elizabeth  Claiming  being  ihe 
and  there,  u)»on  the  said  trinl,  ssked  and  exft«] 
mined  upon   her  oath,   concerning   what   sba 
saw  at  the  said   hous-e  of  the  said  KoKunnahn 
Wells,  at  the  time  that  she  as  aforesaid  gave 
in  evidence  that  she  wa^  takeu  there ;  stie  the  said 
Elizabeth  Canning,  being  so  Nwuru,  did  then 
and  there  further  falsely,  willinjfly,  and  cor- 
ruptly,  by  her  own  proper  act  aiid  conaentt| 
aay,  depose,  answer,  and  give  in  evidence,  &c«l 
cording  to  the  purport   and  eftect   followin^fl 
(thai  is  to  say)  I  (again  meaning  herself  tlie| 
said  Elizabeth  Canning)  saw  the  gyp^tey  wf|-< 
man  Squires  (meaning  ihe  said  Mary  Sfjuirca), 
who  was  sitting  in  a  chair  (meanini;  sitting  m 
a  chair  in  the  said  house).     And   that  she  the 
said  Elizabeth    Caiming,  being  so  sMOrn,  did 
then  and  there,  upon  the  said  last-mrniioued 
trial,  fulsety,  wiUinglVt  ^nd  corrupUy,  by  her 
own    proper    act  and    consent,  *ay,    depose, 
swear,  and  give  in  evidence  to  thejurun  oi  the 
said  jury,  according  to  the  purfiort  and  eiFe«t| 
lollowing,  (itiat  is  to  say)  4!i  tioon  as   I  (again 
meaning  heiiielf  the  said   Elizabeth  Cunning) 
was  brought  in  (meaning  into  the  said  liouse,) 
IVtury  Squires  (again  meaning  the  said  Mary 
Sijuires)  look  me  (again  meaniitg  herself  the 
aaid    Elizabeth   Catmiug)   by   the  hand,  and 
asked    tne    (again   meaning   hcri^elf  the    ^aid 
EUxabelh  Canning)  if  I  (again  meaning  her- 
self the  said  Elizabeth  Canning')  cho^e  to  go 
their  way,  saying,  if  1  (again  meaning  ber* 
self  tl^  said  Elizabeth   Canning)  did,  I  (again 
meaning  herself  the   said   Elixahetli  Canning) 
shouM  have  tine  clothes;   I  (a^jrain  meaning 
herself  t1i«!  ssiti  Elizabeth  (Janninhf )  said.  No. 
And  that  she  the  said  ElizAheih  Canning,  heiog 
so  sworn,  did  then  and  there,  upon  the  said 
last  mentioned  trial,  falsely,  wilhngly,  and  cor* 
luptly,  hy  her  own  proper  uci  and  conseol,  saVi 
depose,   swear,    snd   give  in   evidence  to  tha 
jurors  of  the  said  jury,  according  to  tlie  pur'* 
port  and  eHVct  followitig,  (that  ts  to  say)  Theiil 
ahe   (agsiin   meaning  the   siiid   Mary   Squiret)^ 
wentund  took  h  knife  out  of  a  dresser- drawer* 
and  cut  the  lace  of  my  (meaning  her  the  said 
Ehzalielh  CannmgV)  stays,    and   took   them 
Irom  me  (meaning  herselt  the  said    Elis^abetk 
Caiiiiiiiii)      And    thai    she    the    sM    EivA 
heth    Canning,    being    so    aworo,    did    the 

and  there,  upon  the  ftiiid  last  ttp- ^••■'1   tnal| 

falsely,  withugly,  and  corrupt  >  '  own 

proper  act  and  consent,  nay,  dt  |  i ,  iiiid 

f^ive  io  efideuc«  to  the  jurori  of  the  said  jarj. 


S9S] 


27  GEORGE  n. 


Trial  of  Elizabeth  Cannings 


according  to  the  purport  and  effect  following, 
(that  is  to  nay)  She  (meaning  the  said  Mary 
Squires)  pushed  noe  (naeaning  herself  the  said 
Elizabeth  Canning)  up  stairs ^ (meaning  certain 
stairs  leading  ont  of  the  kitchen  of  the  said 
house,  up  into  a  certain  room  adjoining  and  be- 
Jonging  to  the  said  house)  from  out  of  the 
kitchen,  (meaning  the  kitchen  of  the  said  i 
house)  where  we  (meaning  herself  the  said  j 
Elizabeth  Canning,  and  the  said  Mary  Squires) 
M'erc.  And  that  she  the  Kaid  Elizabeth  Can- 
ninfif,  being  then  and  there,  upon  the  said  trial, 
asked  and  examined  upon  her  said  oath,  con- 
cerning the  name  of  the  place  she  was  put  in  ; 
she  the  said  Elizabeth  Canning,  bemg  so 
sworn,  did  then  and  there  further  falsely, 
willingly,  and  corruptly,  by  her  own  proper  act 
and  consent,  say,  depose,  answer,  and  give  in 
evidence  to  the  jurors  of  the  said  jury,  accord- 
ing to  the  purport  and  effect  following,  (that  is 
to  say)  They  call  it  the  hay -loft,  (meaning  a 
certain  room  belonging  to  tne  said  house,  into 
which  the  said  stairs  lead.)  And  she  the  said 
Elizabeth  Canning  being  then  and  there,  upon 
the  said  trial,  asked  and  examined  upon  her 
oath,  how  long  she  continued  in  that  room  ; 
she  the  said  Elizabeth  Canning,  being  so  sworn, 
did  thenf  and  there  further  falsely,  willingly, 
and  corruptly,  by  her  own  proper  act  and  con* 
aent,  say,  depose,  answer,  and  give  in  evidence 
tu  the  jurors  of  the  said  jury,  according  to  the 
purport  and  elTect  fellowmg,  (that  is  to  say)  A 
month  by  the  weeks,  all  but  a  few  hours.  And 
that  she  the  said  Elizabeth  Canning,  being  so 
sworn,  did  then  and  there,  upon  the  said  last- 
mentioned  trial,  falsely,  willingly, and  corruptly, 
by  her  own  proper  act  and  consent,  say,  de- 
pose, swear,  anu  give  in  evidence  to  the  jurors 
of  the  said  jury,  according  to  the  purport  and 
effect  following,  (that  is  to  say)  1  (again  mean- 
ing herself  the  said  Elizabeth  Canning)  got  out 
(meaning  out  of  the  said  room)  about  four 
o'clock  in  the  afkernoon,  on  a  Monday  (mean- 
ing Monday  the  29th  day  of  the  said  month  of 
January,)  after  I  (again  meaning  herself  the 
said  Elizabeth  Canning)  had  been  confined 
there  (meaning  in  the  said  room)  four  weeks, 
all  but  a  few  hours.  And  thai  she  the  said 
Elizabeth  Canning,  beinff  so  sworn,  did  then 
and  there,  upon  the  said  lastpmentioued  trial, 
falsely,  willingly,  and  corruptly,  by  her  own 
proper  act  and  consent,  say,  depose,  swear, 
and  give  in  evidence  to  the  jurors  of  the  said 
jury,  according  to  the  purport  and  effect  follow- 
ing, (that  is  to  say)  I  (again  meaning  herself 
the  said  Elizabeth  Canning)  took  an  old  sort  of 
a  bed-gown  and  a  handkerchief,  that  were  in 
the  hay  loft  (meaning  the  said  room,)  and  lay 
in  a  grate  in  the  chimney  (meanin|(  the  chim- 
ney of  the  said  room.)  Whereas,  m  truth  and 
in  fact,  KJie  the  said  Eli'icabeth  Canning  was 
iiot  taken  l>y  two  men  to  the  said  house  of  the 
aaid  Susannah  Wells,  about  four  o'clock  in  the 
morning  of  the  said  2d  day  of  January,  or  at 
any  other  time  of  that  day ;  and  whereas,  in 
truth  and  in  tact,  abe  the  aaid  Elizabeth  Can- 
■)iiDg  did  not,  al  asy  time  od  the  mid  Sd  day  of 


January,  see  the  said  Mary  Squires  in  the  said 
house;  and  whereas,  in  truth  and  hi  Tact,  the 
said  Mary  Squires,  on  the  said  2d  day  of 
January,-  was  at  Abliotsliury  in  the  county  of 
Dorset,  and  was  not  at  any  tmie  on  that  day  in 
the  said  house;  and  whereas,  in  truth  and  ia 
fact,  the  said  Mary  Squires  did  not,  on  the  aaid 
2d  day  of  January,  uke  the  said  Elizabeth 
Canning  by  the  hand  in  the  said  house,  and 
ask  her  if  she  chose  to  go  their  way,  saying,  if 
she  did,  she  should  have  fine  clothes;  and 
whereas,  in  truth  and  in  fact,  she  the  aaid  Mary 
Snuires  did  not,  on  the  sard  2d  day  of  January, 
take  the  said  Elizalieth  Canning  by  the  band; 
and  whereas,  in  truth  and  in  fact,  she  the  sakl 
l^Tary  Squires  did  not  take  a  knife  out  of  any 
dresser- drawer,  or  any  other  drawer,  and  cot 
the  lace  of  her  the  said  Elizabeth  Canning^ 
stays,  and  take  them  from  her ;  and  whereas^ 
in  truth  and  in  fart,  the  said  Mary  Sqniree  ittd 
not  cut  the  lace  of  her  the  said  Elizabeth  Can- 
ning's stays ;  and  whereas,  in  truth  and  ia 
fact,  the  said  Mary  Squires  did  not  pnah  the 
said  Elizabeth  Canning  up  any  staira  belong- 
ing to  the  said  house ;  and  whereas,  in  trtm 
and  in  fact,  she  the  said  Elizabeth  Canning 
did  not  continue,  or  was  in  anywise  confinei 
in  the  said  room  belonging  to  the  said  hooWi 
into  which  the  said  stairs  lead,  for  a  month  bj 
the  weeks,  all  but  a  few  hours ;  and  wiierte 
the  said  Elizabeth  Canning  did  not  continue,  or 
was  any  ways  confined  in  the  said  room,  or  in 
any  other  room  belonging  to  the  said  booiai 
fbr  a  month  by  the  weeks,  all  but  a  few  hoars, 
or  for  any  other  space  of  time ;  and  whereaii 
in  truth  and  in  fact,  she  the  said  Elizabeth 
Canning  did  not  get  out  of  the  aaid  room 
about  4  o'clock  in  the  afternoon  of  the  aaid 
29th  day  of  January,  or  at  any  other  time  of 
that  day ;  and  whereas,  in  truth  and  m  foot, 
she  the  said  Elizabeth  Canning  did  not  take 
any  bed-gown  or  handkerchief  out  of  any 
grate  in  the  chimney  of  the  said  room  ;  and 
whereas,  in  truth  and  in  fact,  there  waaao 
grate  in  the  chimney  of  the  said  room  on  the 
said  2d  day  of  January,  or  on  tlie  29th  day  of 
January,  or  at  aiiv  other  time  between  the  Si 
and  29th  days  of'^  January,  as  she  the  aid 
Elizabeth  Canning  by  her  false  and  corrapt 
testimony  aforesaid,  at  and  upon  the  aaid  lait- 
mentioned  trial,  did  most  falsely,  ?o1untarilyi 
and  corruptly,  by  her  own  proncr  act  and  con- 
aent,  upon  her  said  oath,  so  taken  as  aforesaid, 
say,  depose,  swear,  and  give  in  evidence  to  the 
jurors  of  the  said  jury,  in  manner  aforesaid. 
And  so  the  jurors  aforesaid,  now  here  avrom, 
upon  their  oath  aforesaid,  do  say,  that  she  the 
said  Elizabeth  Canning,  at  and  upon  the  said 
trial,  upon  the  said  21st  day  of  February,  in 
the  2Gth  year  aforesaid,  at  London  aforesaid, 
(that  is  to  say)  at  the  parish  of  St.  Sepulchre, 
in  the  ward  of  Farringdon  Without,  in  London 
aforesaid,  before  the  said  justices  of  our  aaid 
lord  the  king  last  above-mentioned,  and  otben 
their  fellows  aforesaid,  by  her  own  proper  ael 
and  consent,  and  of  her  own  moot  wicked  and 
oorropt  mittdi  in  manner  and  fom  afbraoaid, 


for  Wilful  and  Corrupt  Perjury. 


A,  D.  175i. 


[298 


dii  faMy,  volaQtarily,  and  corruptly,  upion 
Rid  oaltif  so  taken  as  aforesaid,  comaiit 
I  &Dd  corrupt  p<frjury,  to  llie  great  ilts- 
are  of  Almighiy  God,  in  conieiopt  of  our 
ord  tbe  king'  and  his  laws,  to  ihe  evil  ami 
CIO  us  example  of  all  others  in  i  he  like  case 
Eting^  and  against  the  jjeace  of  our  said 
be  kingf  bis  crown  and  dignity.* 

(Juscoyne.  May  it  please  your  lord- 
mnd  you  gentlemen  of  the  jury  ;  I  am 
^1  in  this  ca^e  for  the  king,  against  the 
ler  at  the  bar,  viho  stands  before  you  iu- 
'  of  wilful  and  corrupt  jierjury  :  and  the 
lent  sefs  forth,  that,  at  the  general - 
of  tbe  peace  held  for  the  county  of 
|)e»ex,  on  the  19th  of  February,  in  the 
ye^r  of  his  present  majesty's  reign,  an  in- 
lent  was  found  against  one  Mary  Squires, 
for  having,  ou  Ibt;  id  day  of  January,  m  the 
cime  year,  with  t'uice  and  arms^  assaulted  the 
prii4iner  at  the  bar,  and  having  put  her  in  feor 
of  ber  life,  feloniously  and  with  force  took  and 
ttalefrom  ber  peraon,  and  against  ber  will,  in 
tbedwellioQf  bouse  of  one  Susannah  Wetls^  iu 
lie  parish  of  Enfield,  in  the  county  of  Middle^ 
«Ii  a  pair  of  stays  of  the  %'alue  of  10s.  the  pro- 
perty of  tbe  prisoner  at  the  bar :  and  tbe  in* 
^ktment  charges,  that  at  tbe  gaol-delirery  of 
Newgate,  on  tbe  21  &t  day  of  February,  in  the 
■im^year,  which  was  the  year  1763,  Mary 
Squirtf  was  arraigned  upon  the  indictment  so 
fbund  against  ber,  and  ba?iug  pleaded  Not 
Coiky,  tbe  prisoner  at  the  bar  appeared  at  tbe 
trill,  and  t»eiiig  duly  sworn  as  a  witness,  did 
maliciouily  and  deliberately,  and  in  order  lo 
jknxrurc  the  said  Mary  Stjuires  to  be  tonricled 
of  the  felony  and  robbery  charged  on  her, 
Uk^iy  uDil  corruptly  depose  and  gire  in  evi- 
<fe>cc,  that  she  the  prisoner  at  the  bar,  on  the 
III  day  of  January  1753,  had  been  at  a  place 
(died  Saltpetre- Bank,  to  see  an  uncle  and 
iUBi  'f  that  she  stayed  there  till  about  nine  at 
«i|ht;  that  ber  uacte  and  aunt  came  wilb  ber 
(r^m  thence  as  far  as  Aldgate,  where  tbey 
fined  ;  that  she  tbe  prisoner  at  the  bar  being 
tbiQ  alone,  and  conrting  o?er  Moor  fields  by 
Bedlam  wall,  two  men  laid  bold  of  her,  and 
»oak  her  by  force  from  thence  lo  tbe  house  of 
Suaonnh  VVelts  at  Enfield;  and  beiitg  there, 
till  Mary  Stjuires  took  ber  by  the  hand,  and 
ibd  ber  if  she  would  go  their  way,  saying, 
llttifshedid,  she  should  have  line  clothes; 
>bt  she  refused;  and  that  thereupon  Mary 
Sqvires,  nith  a  case  knife,  cut  the  lace  of  her 
iti)«,  aud  look  them  from  ber,  gave  ber  a  slap 
<ui  the  face,  and  pushed  her  up  fktairs  into  ami- 
Ibcr  room,  which  they  called  rhe  ba^-lofl ;  that 
41  acnyn  as  she  was  there,  tt^e  door  of  the  room 
ftisshut  upon  her  ;  and  that  she  was  threatened 
by  Wary  S(]uiit»s,  that  if  she  heard  ber  stir  or 
iMtfe,  she  woiild  cut  ber  tiiroatr  and  the  in- 
dictment charges,  that  thf  prisoner  at  tbe  bar 
asked  on  tbe  trial  of  Mary  Squires,  bow 
'abe  bad  continued  in  that  room,  she  falsely 

•  See  5  Terra  R<f«  ill. 


and  wilfully  swore,  that  she  was  kept  there  a 
mouth,  all  but  a  few  hours  ;  aud  that  upon  tbe 
29th  of  January  she  broke  down  a  hi^ard  that 
was  nailed  up  at  the  inside  of  the  window,  and 
got  out  there  ;  whereas  in  truth,  as  the  indict- 
ment charges,  the  prisoner  at  the  bar  was  never 
taken  or  carried  to  the  houKe  of  Susannah 
Welts ;  and  that,  in  truth  and  in  fact,  Marv 
Squires  was  at  that  lime  at  Abbotsbury,  in  the 
county  of  Dorset :  and  tbe  indictment  chargeVp 
that  in  truth  and  in  fact,  Mary  Squires  did  not 
cut  tbe  luce  of  tbe  prisouer's  stays,  aod  take 
them  from  ber,  or  slap  ber  on  the  face,  or  push 
her  up  stairs  into  another  room/  or  say,  that  if 
she  heard  her  stir  or  move,  she  would  cut 
ber  throat;  and  thai  in  troth,  the  prisoner  at 
the  bar  %vuj  not  in  any  room  or  place  belonging 
to  the  house  of  Susannah  Wells  ;  and  there- 
fore, that  she  was  ou  the  trial  of  the  said  Alary 
Scjuires  guilty  of  wilful  and  corrupt  perjury  : 
all  which  is  said  to  be  done,  to  the  great  dis- 
pleasure of  Almighty  God^  in  contempt  of  tbe 
laws  of  this  land,  and  to  tbe  eril  and  pernicious 
example  of  all  oiliers  in  tbe  hke  case  offending, 
aod  against  the  |>eace  of  our  lord  the  king,  his 
cruwii  and  dijjnity.  To  this,  gentlemeu,  the 
prisoner  has  pleaded  Not  Guilty  :  we  shall  call 
onr  witnesses,  and  if  we  prore  ber  guilty,  you 
will  find  her  so. 

Mr.  (afterwards  Serjeant)  Datnf.  May  rt 
please  yonr  lordship,  and  you  gentlemen  of 
tbe  jury  ;  1  am  count^el  for  tlie  prosecution 
agaiuTit  tbe  delendaut  at  the  bar,  who  now 
comes  before  you  to  be  tried  for  wilful  and 
corrupt  perjury ;  attended  with  so  many  cir- 
cumstances of  asrgravatiun,  and  calculated  to 
produce  such  futiil  effects,  that  it  is  to  be  la- 
mented the  law  has  not  made  it  capital,  Fnr 
it  was  commilted  to  support  a  groundless  nro- 
seculion  for  felony,  and,  under  colour  of  jus- 
tice, to  take  away  the  bfe  of  au  ainoceot  [ler- 
son.  Than  which  it  is  bar^l  to  conceive  an 
offence  more  ihocking  to  humanity,  or  more 
dreadfuL 

Gentlemen,  tbe  Indictment  sets  forth,  that 
the  defendant,  maliciously  and  debberately  in- 
tending to  pervert  tbe  due  course  of  law  aud 
justice,  and  to  procure  one  Mary  Squires  un- 
truly to  be  convicted  of  a  robbery,  did,  upon 
tbe  tut  of  February  1753,  in  tliis  court,  gite 
false  testimony  ag:iinst  hnr.  It  contains  se- 
veral particulars  of  tbe  deteudant*^  evidence 
upon  that  occasion,  and  aveis,  that  in  each  par- 
ticular she  was  guilty  of  perjury.  What  could 
tempt  one  so  young  to  such  accumulaled  wick- 
edness, though  the  prosecution  is  not  concerned 
to  account  fur  it,  may  be  easily  conceived  upon 
recollecting  what  had  happened.  And,  indeed, 
one  would  give  way  to  any  charitable  sugges- 
tion, rather  than  suppose  ber  heart  ko  thorough- 
ly polluted,  as  at  first  to  design  a  sacrifice.  To 
preserve  her  character,  it  became  necessary  to 
frame  an  excuse  for  her  absence  from  her 
luaster^s  service  during  tbe  space  of  a  month, 
fixim  tbe  1st  to  tbe  29th  of  January.  To  what 
such  absence  i^as  really  owing,  1  am  Dot  id- 


S99J 


27  GEORGE  II. 


Trial  of  Elizabeth  Cannings 


[300 


clined  to  sufi^i^ett,  lest  I  should  wroni;  her. 
But  her  flifjht  wai  suddeo,  unexpected,  aud 
alariuio^. 

An  ill-concerted  stor^  for  this  purpose,  or  the 
forgetting:  some  material  circitmstaDc^s  in  one 
inteuted  with  a  greater  appearance  of  truth, 
was,  in  all  likelihood,  her  first  step  lo  the  crime 
lihe  is  now  to  answer  for.  And  a  too  great 
forwardness  in  satisfying  unexpected  inquiries, 
the  effects  of  distrust  and  curiosity,  might  lead 
her  unwarily  into  a  description  of  places  and 
persons,  unthought  of  before,  from  which, 
once  fixed,  she  thought  it  dangerous  to  deviate. 
But  au  additional  temptation  fell  in  her  way,  a 
temptation  too  strong  to  be  resisted  in  the  situa- 
tion to  which  she  was  reduced ;  and  this  was  a 
scheme  to  raise  money.  For  those,  who  were 
weak  enough  to  believe  all  the  absurdities  to 
which  their  own  credulity  had  given  rise,  were 
fio  affected  with  her  unprecedented  sufferings, 
that  they  proposed  a  general  subscription,  as 
well  to  punish  the  infamous  wretches,  who,  it 
was  said,  had  endeavoured  to  starve  her  out  of 
her  chastity,  as  to  reward  her  purity.  Here 
then  she  was  under  a  necessity,  either  to  re- 
nounce those  golden  hopes,  by  retracting  what 
she  had  declared,  and  so  to  ruin  her  character, 
or  to  persist  in  it  through  perjury.  And  having 
by  this  time  subdued  all  remaigs  of  virtue,  she 
preferred  the  offer  of  money,  though  she  must 
wade  through  innocent  blood  to  attain  it. 

The  project  succeeded  to  the  utmost  of  her 
wishes.  For,  by  the  help  of  prejudices  most 
artfully,  industriously,  and  (I  may  add)  infa- 
mously inculcated,  she  made  her  way  to  the 
conviction  of  Mary  Squires,  and  Susannah 
Wells,  (the  former  fur  robbing  her  of  her  s|uys, 
and  the  other  fur  being  an  accomplice  in  that 
robbery)  and  so  she  became  the  object  of  al- 
most uuiversal  compassion.  The  unfair  means 
made  use  of  upon  that  occasion,  by  advertise- 
ments in  the  daily  papers,  and  in  printed  bills, 
every  where  dispersed,  with  the  names  of  six 
reputable  tradesmen,  attesting  the  truth  of  a 
btory,  of  which  they  were  nut  able  to  prove  a 
single  syllable ;  and  all  this  for  the  sake  of 
prejudging  those  unbap|>y  v»umen,  who  in 
consequence  of  it  fell  a  sacrifice  ;  would  pass 
unnoticed  in  this  trial,  had  not  the  same  un- 
justifiable methods  been  continued  to  the  pre- 
sent hour.  An  appeal  to  the  public  concern- 
ing matters  triable  by  juries,  has  a  direct  ten- 
dency to  shut  up  the  avenues  to  conviction, 
and  to  enervate  the  arms  of  justice.  But  it  is 
tbe  happiness  of  this  prosecution  to  be  brought 
before  a  jury  of  citizens,  whose  characters  give 
the  greatest  room  to  hope  for  an  impartial 
trial,  notwithstanding  all  the  arts  which  have 
been  practised  to  inflame  their  passions  and 
corrunt  tbeir  judgment.  And  if  1  am  not 
greatly  mis- instructed,  the  prejudices  must  be 
strong  indeed,  that  can  resist  the  proofs  of  this 
woman's  guilt. 

Gentlemen,  betbre  1  open  the  evidence  we 
have  to  offer,  1  must  beg  leave  to  trouble  you 
with  repeating  what  the  defendant  swore  u|Km 
the  trial  of  ^wt^i  Squirca,  and  with  lemarkiDg 


some  of  the  objections  to  which  it  stands  ex- 
posed, without  anyother  proofs  to  eontradict  it 
She  swore,  **  That  on  the  1st  of  January, 
1753,  about  nine  at  night,  two  men  seized  her 
in  Moorfields ;  and  without  speaking,  robbed 
her  of  half  a  guinea,  and  three  shilbngi,  and 
her  gown,  apron,  and  hat,  which  they  foMed 
up,  and  put  into  a  great-coat  pocket.  That  she 
screamend  out,  and  then  one  of  the  men  stopped 
her  mouth  with  a  handkerchief.  That  ifaey 
then  tied  her  hands  behind  her ;  after  wbidi 
one  of  them  gave  her  a  blow  on  the  teinple, 
which  stunned  her  and  threw  her  directly  uito 
a  fit.  That  this  transaction  in  Moorfields  lasted 
half  an  hour  ;  but  nobody  passed  by  in  all  thst 
time.  That  she  remained  totally  insensible  for 
six  hours  after  ;  when  she  found  herself  bj  s 
large  road,  with  the  two  men  who  had  roAed 
her.  That  they  dragged  her  to  the  house  ef 
one  Susannah  Wells  (who  was  at  the  ssme 
time  tried  as  an  accessary  to  Squires)  at  En- 
field-Wash,  (which  is  "between  eleven  sod 
twelve  miles  from  Moorfields)  where  she  ar^ 
rived  in  half  an  hour  after  the  recovery  of  bar 
senses.  And  it  was  then  about  four  o'clock  !■ 
the  morning.  That  she  there  saw  Mary 
Squires,  and  two  young  women  in  the  Idtebea. 
And  as  soon  as  she  was  orought  in,  Squires  took 
her  by  the  hand,  and  asked  her.  If  ahe  chose 
to  go  their  way,  ssying,  if  she  did,  she  should 
have  fine  clothes.  That  upon  answering,  No, 
Squires  cut  off  her  stays,  and  took  them  from 
her.  And  immediately  the  two  men  went 
away.  That  Squires  then  called  her  '  bitch/ 
gave  her  a  slap  in  the  face,  pushe<l  her  ap  < 
suirs  into  a  hay- loft,  (a  few  steps  from  tbe 
kitchen)  and  shutting  the  door  upon  her, 
threatened  to  cut  her  throat  if  she  beard  her 
stir  or  move.  That  when  day  light  appeared, 
she  saw  about  the  room,  in  which  there  was  a 
fire-place,  and  a  grate  in  it,  no  bed  or  bedstead, 
nothing  but  hay  to  lie  upon,  a  pitcher  almoit 
full  of  water,  and  about  twenty-four  pieces  of 
bread,  to  the  amount  of  a  quartern  loaf  in  the 
whole.  That  these  pieces  of  bread,  and  tbi* 
water,  between  three  and  four  quarts,  was  all 
sbe  had  to  subsist  on,  (except  a  penny  mince- 
pye,  which  she  had  in  her  pocket)  for  the 
whole  time  she  remained  in  that  room  ;  which 
was  from  Tuesday  the  2d  of  January,  at  foor 
in  the  morning,  till  Monday  the  99th  at  four  is 
the  atWrnoou.  And  that  she  had  no  stool  in  aD 
that  time.  That  no  one  came  to  her,  nor  did 
she  see  a  human  creature,  except  once  she  uM 
somebo<ly  look  through  a  crack  of  the  door. 
That  she  had  eat  up  all  her  bread  on  Friday  i! 
the  26th,  and  had  drank  up  all  her  water  oe 
Monday  the  29th,  at  half  an  hour  after  three  • 
in  the  afternoon ;  and  at  four  o'clock  she  roads  | 
her  escape,  which  she  had  never  attemplfld 
(nor  did  it  ever  once  come  into  her  head  II 
attempt)  till  that  day.  That  the  manner  of  her 
escape,  was  by  breaking  down  a  board  whioll 
was  nailed  up  at  the  inside  of  a  window,  abool 
eight  or  ten  feet  from  the  ground ;  from  which 
she  jumped  dpwn,  without  the  least  hgrwi^ 
being  soft  clay  ground.    But  before  slw  kft 


301] 


fift  Wilfvl  and  Corrupi  Perjury. 


A.  D.  1754. 


[909 


ike  rsoni,  tbetMk  a  bed-gown  and  ahandker- 
cbief,  wlHch  the  fbuod  id  the  chimney  grate. 
Tint  hMMin^  nefer  bwn  on  that  road  l^fbre, 
ikc  eoqaireil  lier  way  of  |ieople  she  naef ,  nnd 
m  walfceil  od  the  f(reat  road  to  her  mother's 
kMW,  (about  twehre  miles)  without  seeking 
frfkgie  ia  anv  of  the  honsen  on  the  road,  for 
lavibe  ahould  meet  with  somebody  belonging 
litkt  bouse  she  had  escaped  from.  That  she 
■lifii  at  her  mother's  in  Alderraanburv,  at  a 

a|ioat  teu  at  night ;  and  she  told  her 
that  her  confinement  was  somewhere 
■  iba  Bcrtfordshire  road,  which  she  had  dia- 
cstercd  while  she  was  under  confinement,  by 
Mag  a  coach  go  by,  which  she  knew  fre- 
maHKk  that  road.  And  being  called  upon 
bv  the  Court  to  particularize  the  furniture  of 
IM  raooi  she  was  confined  in,  she  mentioned 
a  banel,  a  aaddle,  a  bason,  and  a  tobacco- 


"Ma,  Mtlemen,  was  her  e?idence.  Now  I 
waaM  sak  «ay  reasonable,  unprejudiced  man  in 
ibe  warW,  whether  he  ever  heard  a  story  so 
iatifvfj  Anitute  of  all  human  probability.  Is 
if  aal  a  heap  of  monstrous  absurdities,  with 
ftlthsod  glaring  in  every  circumstance  ?  What 
iadnee  the  two  ruffians  in  Noorfields  to 
f  io  this  extraordinary  manner?  Did  they 
to  rob,  or  kidnap  her,  or  both  ?  If  only 
Itfsby  why  did  Ihev  kidnap  herP  Jf  only  to 
kidnap,  why  r»h  her?  If  both,  why  lose 
kdf  aa  hour  in  stripping  her  in  so  jHiblic  a 
phec,  when  multitudes  Si  people  were  conti- 
aaaHy  pasaiog  by ;  since  they  niit;ht  have  done 
il  SKorely  at  the  end  of  their  journey  ?  Hav- 
iag  robbed  sod  stripped  her,  what  temptations 
bad  tbrjT  to  take  the  pains  and  run  the  hazard 
af  arrjriBg  her  twtlre  miles,  in  a  fit,  (supposing 
il  piwhh)  through  se? eral  turnpikes  and  vil- 
^ps,  wbcre  it  was  a  thousand  to  one,  that 
tbiy  waoM  be  discorered  and  apprehended  ? 
Ybe  mmm  difficulties  occur  at  £nfietd-Wash. 
Whit  ikit  was  in  the  house,  was  any  thing 
tnaacM,  whereby  one  can  trace  the  motive 
if  bfr  being  brought  or  confined  there?  At 
inl»  bidced,  ahe  was  asked,  whether  she  would 
foibeir  way ;  and  if  she  would,  she  should 
am  Ine  doilies. — ^Tbeir  meaning  in  this  was 
faA  aaazplahiedy  and  no  further  persnasians 
«Bit  used  to  tempt  her !  Advantage  taken  of 
■eiMiae  refusal,— she  was  instantly  locked  op 
fr  a  iDOuth  upon  bread  and  water !  Not  the 
hvl  inquiry  hi  all  that  time,  what  effect  this 
kaid  uaage  bad  upon  her;  or  what  was  become 
•f  hsr !  Whether  she  was  dead,  which  might 
hava  been  expected,  if  she  remained  in  the 
i  escsped,  which  it  was  more  rea- 
ippoie.  For,  see  how  wonders 
■uhiply  f  The  means  of  escaiie  were  left  open 
to  bcr  evoy  momeot  of  the  time,  at  the  hazard 
af  their  Kves !  those  mesns  unemployed,  and 
*^       \\  of,  for  the  preservation  of  her  own  • 


la  h  not  amaiing  she  should  manage  her  al- 
mwmtm  af  bread  and  water  (scarce  sufiicient 


ftr  •  wesk'a  aabsislanoe)  with  such  provhlence, 
*at  the  fbraiar  lasted  till  within  three  days, 
and  Ihn  Mar,  (whioh   aba  couM  kas  en- 


dure the  want  of)  though  less  in  proportion, 
till  with  half  an  hour  of  her  coming  away*! 
And  yet  she  had  never  received  the  least  iBl»- 
mation,  how  long  ahe  was  to  remain  in  confine- 
ment, or  whether  she  was  to  have  any  sup- 
plies !  That  she  should  survive  all  this  treat- 
ment, too  hard  for  the  best  constitution,  and  find 
strength  to  walk  twelve  milea  immediately 
afterwards,  without  the  least  refreshment  or 
rest! 

These  are  not  all,  nor  the  fif\ieth  part  of  the 
objections,  to  which  this  unexampled  tale  is 
liable.  It  would  be  mis-spending  time  to  enu- 
merate them— they  are  obvious  to  everyundcr- 
standingf.  Does  there  need  much  evidence  to 
contradict  this  ?  Does  not  common  sense,  and 
the  observation  of  all  mankind  upon  the  course 
of  nature,  refute  it  in  every  instance?  Yet 
such  arts  have  been  practised  to  engage  men  to 
believe  it,  that  there  are,  at  this  day,  uousands 
who  embrace  it  as  zealously,  as  an  article  of 
religious  faith.  Insisting  upon  the  mere  possi- 
bility of  this  romantic  story,  and  having  an  im- 
plicit faith  in  the  defendant's  sincerity,  be- 
cause her  character  (they  say)  is  clear  of  any 
other  imputation,  they  have  been  drawn  in  a» 
conclude  upon  the  truth  of  all  she  has  sworn. 
Such  are  incapable  of  conviction  ;  upon  whom 
neither  argument  nor  evidence  can  have  any 
effect. 

Let  me  imagine  a  case,  better  authenticated 
than  this  before  you,  bnt  in  favour  of  which 
men  have  no  prejudices ;  and  see  u  hat  reception 
it  would  meet  with.  Suppose  a  pretender  to 
the  art  of  flying  (an  art  which  some  soarini; 
geniuses  of  the  last  age  thought  practicable) 
shonid  swear  to  have^  taken  a  month's  tour 
round  the  extremity  of  the  atmosphere,  with- 
out breathing  in  all  that  time.  Were  no  arts 
used  to  mislead  men's  understanding,  were 
they  lefl  to  judge  for  themselves,  no  one  woukl 
believe  this  even  upon  the  faith  of  fifty  wit- 
nesses. For,  however  unlikely  it  is,  that  Hf^y 
disinterested  men  should  concur  in  a  fabhood, 
it  would  be  still  more  unlikely,  that  a  mau 
should  be  flying  fi)r  a  month  without  drawing 
breath. 

But,  gentlemen,  this  prosecution  will  not 
rest  upon  improbabilities.  It  was  commenced 
upon  the  clear  proof  of  facts ;  sufficient  to  con- 
vince every  man,  whose  judgment  is  not  capti- 
vated by  prejudice. 

The  evidence  to  be  produced  against  the  de- 
fendant is  of  several  kinds.  First,  To  shew 
that  Mary  Squires  was  in  another  place,  above 
130  miles  from  Enfield-Wash,  at  the  time  of 
the  supposed  robbery  there. — But  lest  the  be- 
lievers in  wonders  should  think  this  insuflicient, 
and  insist  upon  the  possibility  of  Squires 
being  in  two  places  at  once ;  we  shall,  in  the 
next  phice,  under  various  heads  of  proof,  attack 
the  whole  of  the  defendant's  evidence,  4nd 
shew  that  in  every  part  of  it  she  is  forsworn. 

Gentlemen,  because  there  may  be  no  uncer- 
tainty in  that  part  of  the  case  which  relates  to 
Squires,  she  will  attend  here  in  person,  to  be  re- 
ferred to  by  the  witnesias.    And  you  wiH  ab    ' 


SOS] 


27  GEORGE  II. 


Trial  ofEUzabeth  Camm^, 


[AM 


■enre,  (to  OK  her  own  Un^^uaffe  lotbedefen- 
^aoty  when  she  first  charged  her  with  the 
robbery,)  that  the  Almigfatjr  has  not  created  her 
likeoess.  So  it  is  impossible,  either  for  the  wit- 
nesses, or  the  defendaot,  to  miiitake  her  for  ano- 
ther. She  is  one  of  thai  tribe  of  peopte  called 
gypsies,  and  strolls  about  the  country  as  a 
hawker  and  pedlar.  She  is  a  widow,  and  has 
a  son  George,  a  young  man,  and  two  daugh- 
ters, Lncy  and  Mary,  both  young  women.  It 
happened,  that  in  the  latter  end  of  the  year 
1752,  this  gypsey,  with  her  son  and  her  daugh- 
ter Lncv,  travelled  on  foot  into  the  west  of 
England  with  smuggled  goods,  such  as  they 
meet  with  in  sea>port  towns,  and  sell  again  to 
people  in  the  country.  The  material  questions 
with  respect  to  these  people  will  be,  where  were 
they  upon  the  1st  aud  2nd  of  January  1753? 
And  when  did  they  anve  at  Enfield  Wash  ? 

In  order  to  give  ^ou  the  clearest  satisfaction 
in  this  matter,  it  will  be  necessary  to  go  a  little 
farther  back  than  the  Ist  of  January,  and  trace 
them  down  to  the  time  of  their  liNeing  appre- 
hended on  the  first  of  February. 

Gentlemen,  it  will  be  worth  your  observa- 
tion, with  what  degree  of  certainty  the  wit- 
nesses swear,  not  only  with  regard  to  the 
identity  of  the  three  persons,  (who  will  be  all 
in  court  to  be  referred  to)  but  also  as  to  the  pre- 
cise times  of  seeiner  them.  And,  if  it  should 
appear  to  you,  that  they  can  be  under  no  mistake, 
either  as  to  persons  or  times ;  it  will  only  re- 
main for  your  consideration,  what  credit  should 
be  given  to  their  oaths.  They  are  forty  in 
number ;  tltev  are  totally  disinterested ;  and  of 
unexceptionable  characters. 

Upon  Friday  the  29th  of  December  1752, 
in  the  evening,  these  three  foot-travellers, 
Mary  Squires  George  and  Lucy  Squires,  came 
to  lodge  in  a  little  inn  at  South-Parrot,  in  Dor- 
setshire ;  and  went  forwards  towards  Abbots- 
bury,  the  next  morning.  The  landlady  of  the 
iuu  will  tell  ^'ou,  she  is  certain  as  to  the  time, 
from  an  accident  of  some  guests  leaving  a 
reckoning  to  pay,  which  she  entered  in  lier 
book  that  evening :  a  book,  wherein  she  had 
seldom  occasion  to  make  entries  ;  but  when- 
over  she  did,  it  was  her  custom  to  ascertain  the 
time  by  her  almaoack :  and  she  remembers  to 
have  referred  to  the  almanack,  while  they  were 
in  the  house.  You  will  find  them  the  next 
morning,  Saturday  the  30th  of  December,  be- 
tween eight  and  nine  o'clock,  taking  refi-esh- 
ment  upon  the  road,  at  a  place  called  Win- 
yard's  Gap,  about  a  mile  from  South-Parrot. 
The  person  who  proves  this,  saw  them  the 
evening  before  as  they  were  going  to  South  • 
Parrot,  and  was  so  struck  with  the  old  woman's 
hideous  tace,  that  she  compared  her  to  a  pic- 
ture then  in  her  house  of  mother  Shi  pton.  The 
same  day  at  two  in  the  al^ernoon,  they  came  to 
Litton,  about  nine  miles  from  Winyard's  Gap, 
and  three  from  Abbotsbury.  There  they  lay 
mt  an  alehouse,  and  stayed  till  Monday  after- 
noon the  1st  of  January.  This  will  be  proved 
by  five  witnesses,  who  will  give  yoo  a  parti- 
cular account  of  them  during  all  that  time. 


Monday  the  1st  of  Januaiy,  ia  tht  4 
they  came  to  Abboisbury,  a  aet-port 
Dorsetshire ;     where   tney  were   very  wd 
known  by  a  great  manv  people,  havhif  bm 
often  there   before.    Tliere  tbey  aujvd 
Tuesday  the  9th.    This  will  be  pi 
less  than  eleven  witnesses :  and  u  i 
sible  these  people  should  be  under  i 
as  to  their  persons,  it  will  be  material  I 

that  it  is  equally  impossible  they  ahdoM  ^ 

take  as  to  the  time.  It  happened,  that  tkai^l 
ciseman,  stationed  at  Abbotiibary,  wm  tihii|l 
a  few  days  before  the  coming  of  tbcK  Mril 
there;  and  another  oflicer  was  placed  wm 
stead,  who  lodged  in  the  same  houee  wi|lij|li% 
at  one  Gilihims'F,  and  came  there  oa  thi'M 
same  day.  You  will  find  this,  aot  oaM|r8 
exciseman  himself,  and  several  of  the  iir 
who  remember  his  and  their  comioff  ^ 
shall  also  produce  the  books  from  the  1 
office,  by  which  the  time  of  this  maa'ai 
to  Abbotsbury  will  appear  with 
tainty.  There  are,  besides,  several 
cumstances,  which  lead  the  witneawi  Wim* 
actness  k\\*  time,  as  well  here,  aa  at  tba  fi|r 
places  before- mentioned. 

Before  we  leave  Abbotsbury,  itwill  bepmr  \ 
to  let  you  know  that  Lucy  Squirea,  tboq|li  it  j 
daughter  of  such  a  deformed  woman,  is  ««yj 
far  from  disagreeable,  and  had  an  arquaijiiiMp| 
there,  who  was  dear  to  her.  This  was  W$\ 
William  Clarke,  a  shoe -maker  of 'that  |~ 
who  met  them  at  Litton,  and  travelled  m  9| 
day  and  a  half's  journey  with  them  fmi  /' 
botsbury.  The  reason  of  my  taking  i 
this  circumstance  will  appear  hereafter,  i 
you  find  them  at  Basmgstoke.  With 
Clarke  they  left  Abbotsbury  on  Tucadi^jl 
9th  of  January,  and  went  to  Porteraban,  «bi . 
they  ky  that  night.  Wednesday  the  lOlb  Af  1 
went  to  Uidgway  ;  where  Clarke  took  uHf] 
willing  leave  of  his  Lucy,  after  obtaiBH|lvJ 
promise  to  send  him  a  letter  soon ;  tbeyfiri^i 
Kidgway  that  night;  and,  the  neat 
Thursday  the  11th,  you  will  find  them  en 
the  waters  by  Dorchester,  which  wen 
high  after  great  rains.  They  had  reocifffitf  ] 
account,  that  the  other  dangbter  Mary  VIlAI 
and  so  travelled  faster  from  this  time  toblif  1 
home.  Friilay  the  13th  they  lay  at  QMfc  ] 
Saturday  the  13th  at  Martin,  in  a  fi  *' 
barn.  Sunday  the  14th  at  Coooibe: 
whence  thev  proceeded  the  next  dayial 
road  to  London. 

The  next  account  you  will  receiTe  ef  t 
will  be  Thursday  the  18th  at  BaauigiUhPf] 
which  you  will  observe,  according  to  th^n 
of  travelling,  to  be  four  days  jannM]f  ftl 
Coombe.    And  here  you  will  find  a  piaoi 
evidence  very  material,  and  coneluaive  vilb 
gard  both  to  persons  and  times,  and  whkh' 
confirm  the  rest  of  the  evidence  before  it  !§,■ 
utmost  degree  of  certainty^    I  meotMiiii| 
fore,  that  Lucy   Squires   bad  prowlni ) 
sweetheart,  William  Clarke,  to  aead  UGi 
letter  on  the  road.    It  waa  at  Ab  plan  ^ 
performed  her  promise.    But  beiDg  an  ^"-^-^ 
1 


joa] 


far  Wilful  and  Corrupt  Pmjury. 


A.  p.  1754. 


ffirit  *he  was  olitigfed  to  bave  rt^cour&e  to  tke 
IftndUdy  (tf  tbe  iun  to  write  tor  her.  The 
l»lt«'  i«  dttted  Uom  Basingstoke,  tbe  16th  of 
jAoumrv  1755.  Tbe  lanillady,  Mrs.  Monis, 
niiJ  (cli^oii  it  was  wrote  by  her  at  tbe  lime  it 
htrntn  da<e,  It  will  appear  with  ilie  Basjo^- 
UtitafHist-mark  upnu  »t.  There  being  no  direct 
fMllrom  BiiHinf^sioke  to  Dorchester,  the  letter 
wiaput  into  (he  Londtin  bag ;  and  Ibtfrefore 
lilt  Lomlon  pota-m^irk  isali$o  U|ion  it^  hy  vihich 
it  w%i\  flfipear,  that  it  caci^  into  the  generaJ- 
f«t  office  on  the  19th  M*  January.     It  hap- 

CMihat  ihi<«  letter  (^^liicb  will  he  read  to  you 
Um  course  uf  the  evidcncL)  refers  to  lU*;  cir- 
eamsfaiiDe  of  Clarke*!*  truvelliog  with  thetn 
ijrora  Abbots  bury, 

Friday  ibe  I9lh  they  went  lo  Bagshot ;  and 

Saturday  the  2uth  to  Hreniford  ;  where  George 

M  bia  iDOther  the  Sunday  mornjug,  to  go  to 

bk  sister  Mnry,  whom  he  fouriLl  well  enoue^h 

recovered   to  ^o  with  him   to   Brentford  toe 

Monday  to  her  mother.    Tuesday  the  33d  they 

lay  at  a  house  called  the  Seven  SiVters  at  Page- 

giHn  by  TotieDhain.  And  lire  oejit  day.  Wed- 

flCtday  the  SHh  of  January,  they  went  to  En- 

fteU-Wash.     Here  they  were  si  rangers ;    aod, 

ia^iriog  for  lodging,  had  the  ill  tu«k  to  be  re- 

osmrnetided   to  Husaonah  Weils,  whom  they 

bad  nerer  aeeo  before. 

Happy  for  that  woman,  that  these  unfortu- 
oitr  straiiurers  came  to  her  house  !  In  all  hke- 
libood  she  owes  her  hfe  to  that  accident.  For^ 
^  there  been  no  old  woman  in  her  hotise, 
Mdfs  herself;  nay,  had  she  not  (another  ac- 
Wiut  44ir  which  she  is  indebted  to  Frovjdeueel) 
Chir^ifed  seats  witli  the  old  gypfiey  at  the  tire- 
Mt^  live  minutes  before  the  defendanfii  arri%'a1 
*lisre  an  tbe  Ist  of  February — there  is  loo  much 
nuMi  lo  believe,  that  Wells  herself  had  been 
'tKiiied  of  lliia  felony.  Had  it  ao  happened, 
•kt  iiame  evidence, '  which  was  applied  to 
H|BtPN|  would  ha?e  served  for  her  conviction, 
m  she  had  no  alibi  to  save  her  lite.  The  de- 
Mttdaot  had  then  been  prosperous  in  [>eijury  ; 
iid  the  means  of  detecting  liev  had  been  boroe 
^O'Sii  by  popular  clamour. 

Squires,  her  son  and  daughter,  remained  at 
Wellft's,  from  the*24th  of  Jauiuary  till  the  ist 
if  February;  when  they  wei^  apprehendeil. 
^knt  h'ippened  that  day  will  fall  under  ano- 
tWrliead  of  evidence. 

I  liM^e  now  done  tt ith  that  part  of  tbe  prose- 
Mr**  ca^e,  so  far  as  it  relaf**  to  the  inoo* 
4iiGe  of  Mary  Squires.  Upou  which  I  shall 
Hly  obsenre,  that,  if  the  evidence  brouQ^tit  to 
lD{>pnrt  It  is  clear  and  convincing,  it  will  be 
loo  late  lor  the  defeodant  to  shelter  lierself 
Bader  any  pretenee  of  a  mistake.  For  whether 
ibe  was  robbed  by  Squires,  or  not,  was  the 
malerial  cjucstion  upon  that  woman's  trial, 
hc»r  fate  depended  upon  the  defendant's 
life  testimony.  Ami  it  is  worthy  observa* 
ibti  ibere  was  not  the  least  doubt  sug- 
wben  she  was  giving  evidence  against 
It  remarkable  per^un  in  tli«  world. 
|.»iTi#if,.  the  neit  bead  •**^  **idcoce  will 
^vbal  wttuM  olf  iM  i&ieot 


to  eofiviitce  all  mankind)  thai  the  defendant 
could  give  no  account  of  ibe  room  she  |ire- 
tended  lo  have  been  confined  in  for  a  whole 
month  together;  and  that  the  place  she  aher^ 
wards  fixed  upon,  ami  positively  swore  to,  wai 
not  in  any  resipect  answerable  to  her  first  de- 
icription  of  it ;  sad  thst  her  ilescriptioii  of  the 
room  upon  tbe  trial  of  Stjuires,  was  in  conse- 
quence of  its  being  shewn  to  her  some  little 
time  before.  You  will  &lso  find  her  evidence 
flatly  contradicted,  in  a  variety  of  material 
circumstancest  by  her  own  ioformatiDn  upon 
oath  at  another  time. 

It  has  been  urged  in  the  defvudaol's  hehalf, 
with  much  shew  of  reason,  that  her  giving  ail 
exact  description  of  the  place  of  her  cootSne-' 
ment  is  a  strong  proof  of  her  having  been  there. 
But  on  the  other  baud>  if  her  dc^criiHion  of  ] 
the  place  of  her  confinement  was  us  unappli- 
cable  to  the  room  she  ventured  afterwards  to 
swe«i-  to,  as  it  was  to  St.  Paul's  cathedral,  is  it  { 
not  aa  unanswerable  proof,  that  she  was  not  ( 
there  ?     For  can  it  be  imagined,  she  should  bdjj 
alone  in  a  room  for  ^H  days,  without  any  ob- 
struction of  her  senses,  and  at  the  end  of  that  I 
lime  as  ignorant  of  it,  as  if  she  had  t»ever  seeUt  | 
or  heard  ol  such  a  place? 

It  was  on  Monday  ni^ht  the  S9ib  of  Ja» 
Duary,  according  to  her  account,  thnt  the  d^  j 
fendant  returned  to  her  mother  CJn  Wednes- 
day the  S  1st  she  applied,  with  several  of  hef  j 
friends,  to  Mr.  Cbitty,  the  sitting  alderman,  [ 
for  a  ivarraot  against  Wells,  upon  suspicion  of  I 
having  robbed  her.  For  at  that  time  she  did  f 
not  pretend  to  certainty.  The  alderman  havini^f  I 
heard  her  story,  thai  declared  his  doubts,] 
and  called  upou  her  to  authenticate  it  by  a  par-  ' 
ticular  description  of  I  he  place  she  had  been  in.  ' 
8he  swot  e  it  was  a  little,  square,  dark  room,  iti  i 
which  was  an  old  siool  or  two,  an  old  tables  I 
and  an  old  picture  over  the  chlianey.  And  j 
this  was  all  the  description  she  gave,  Na  f 
mention  of  any  bason,  saddle,  tobacco-mould,  I 
or  barrel ;  and  so  far  frooi  any  pretenee  of  bay,  | 
that  she  complained  of  having  been  forced  tu  J 
lie  every  night  upon  the  bare  fioor.  Hlie  also  | 
swore,  that  her  modicum  of  bread  was  in  five  j 
or  bix  pieces,  (not  four-and-twenty)  and  thml  1 
she  left  some  of  the  water  in  tlie  [Htcher,  when 
she  came  away  ;  that  she  escaped  by  the  help  j 
of  a  pent-house  under  the  window,  upon  whict 
she  slid  down,  and  from  thence  jumped  upon  i 
bank  on  tbe  back»side  of  the  bouse. 

A  IV arrant  being  obtained  from  the  alderman,  j 
it  was  agreed  upon  by  her  friends,  who  bad! 
heard  this,  to  go  down  to  Wells's  the  next^j 
morning  ;  and  after  securing  all  tlic  people  in  f 
tbe  house,  to  inquire  whether  aoy  room  there  I 
was  answerable  to  the  account  she  gave ;  re^  j 
volving,  if  the)  found  she  spoke  trtttli,  to  mx\^  ] 
port  her  to  the  utmost  of  their  power;  if  other*! 
wise,  to  drop  her.  The  next  morning  they  aU  j 
set  out  for  EnbeId*Wasb,  and  immediately  se- 
cured alt  ilie  people  in  WetU'st  house;  there  J 
were  Mrs,  Wells,  Mary  Squires,  her  son  and! 
two  daughters,  Virtue  Hall,  and  Fofttme  ^jft«  j 
tii&,  and  bii  wile  Judith  Natus. 

X 


SOT] 


^  GEORGE  IL 


Trial  qf  Elizabeth  Cannings 


[SOB 


It  will  be  proper  here  to  describe  this  house, 
aD(l  the  lereral  rooms  io  it.  At  the  entrance 
into  the  house  there  is  a  stair-«ase,  the  bottom 
of  which  is  within  two  or  three  yards  of  the 
street-door ;  this  sUir-caie  leads  to  three  rooms 
OD  the  first  floor,  in  one  of  which  lay  the  old 
KTpsey  and  her  two  daughters,  in  another 
Gosrge  Hqoires,  and  in  the  third  Mrs.  Wells 
and  her  daughter,  and  Virtue  Hall.  Below 
Htairs,  on  the  left  side  of  the  Kttle  passage  from 
the  btreet-door,  is  a  parlour,  in  which  all  the 
family  were  placed,  as  soon  as  they  were 
seized.  On  the  right  hand  of  the  passage  is 
the  kitchen,  from  which  a  door  opens  to  a  little 
fli^;bt  of  seren  or  eight  steps,  leading  into  a 
sort  of  lumber  ruom  or  workshop,  where  Natus 
and  his  wife  lay  upon  a  bed  of  hay.  These 
stepH  or  stairs  are  inclosed  in  the  room,  there 
being  no  door  but  at  the  foot  of  the  steps, 
which  separates  it  from  the  kitehen.  And  this 
place,  which  some  call  a  workshop,  and  others 
a  hay-loft,  (on  account  of  some  hay  usually 
kept  there)  the  defendant  was  pleased  to  fix 
upon  as  the  place  of  ber  confinement. 

The  arrival  of  the  defendant's  friends  was 
above  an  hour  before  her ;  but  no  room  could 
be  found  like  what  she  had  represented.  There 
were  two  persons,  one  called  Adamson,  the 
other  Scarrat,  who  (for  reasons  best  known  to 
themselves)  were  extremely  desirous  of  recon- 
ciling every  difficulty ;  and  they  would  have 
it,  that  this  lumber-room  most  be  the  place  of 
confinement.  But  some  obstacles  were  to  be 
removed.  There  was  a  quantity  of  hay,  not 
less  than  half  a  loail^  in  the  room ;  and  not  a 
word  of  bay  had  been  mentioned.  These  two 
ffcutlemen  imagined  she  might  have  forgot  it, 
and  proposed  that  one  of  them  should  ride  back 
to  meet  the  defendant  upon  the  road,  in  order 
to  ask  her  about  it.  They  cast  lots,  who  should 
go  u|)on  thiM  honest  errand,  and  it  fell  to  Mr. 
Adamson.  In  a  little  time  Adamson  returned 
brandishing  his  hat,  and  exultinjr,  *  We  are  all 
right ;  she  says,  there  is  hay  in  the]  room !' 
She  had  never  said  so  before;  and,  if  she  for- 
got to  mention  it,  she  also  forgot  the  use  of  it, 
for  the  whole  month  while  it  was  before  her 
eyes.     For  she  lay  upon  the  bare  boards ! 

But  this  was  not  the  only  difficulty  which 
required  the  skill  of  Adamson  and  Scarrat  to 
solve.  The  room  is  neither  square,  nor  dark, 
uor  little.  It  is  thirty  five  feet  three  inches  and 
a  half  lonir,  by  nine* feet  eight  inches  wide :  it 
is  extremely  fi^ht,  not  only  from  the  windows, 
(but  one  of  which  she  pretended  was  boarded 
up)  but  also  from  the  roof  itself,  which  is  of 
pantiles,  raised  above  the  walls,  so  as  to  let  in  a 
great  deal  of  light  from  the  top.  There  was 
no  grate  in  the  chimney,  nor  the  least  sign  that 
a  gi-ate  had  been  there.  For,  in  the  first  place, 
there  was  no  hearth  to  it;  and  besides,  the 
whole  chimney,  from  the  bottom  upwards  to 
the  mantle-piece,  was  full  of  cobwebs  and 
nastiuess.  It  is  impossible  therefore  that  a 
grate  or  any  thing  ebe  could  have  been  there 
witliin  three  days  before,  or  indeed,  as  many 
months.    There  was  a  large  chest  of  drawers 


by  the  side  of  the  wall,  which  she  bad  said  oo- 
thing  of.  Did  she  forget  this  too  f  Perhaps 
it  had  been  put  there  since  her  escape  the  Moa- 
day  before.  Remove  it,  and  see  whether  it 
has  the  marks  of  lon^  stondidg.  The  experi- 
ment was  made,  and  immediately  fifty  spiders 
ran  out,  to  give  testimony  of  a  hmg,  uadistnibed 
possession.  Instead  of  any  pictures  over  the 
chimney,  there  waa  an  old  broken  caoemenl^ 
which  filled  the  whole  place,  and  had  the  lifca 
vouchers  for  its  long  standing ;  the  oobweks 
uniting  it  to  the  wall.  Where  was  the  stool 
and  table  she  spoke  of  P  Nothins^  like  either  Is 
be  found.  Where  was  the  pent-house,  or  shed 
of  boards  under  the  window,  by  which  she 
escaped?  The  wall  on  both  sides  perpendi- 
cular ;  the  windows  but  eight  feet  fimn  the 
ground  on  the  outskle ;  and  there  never  was 
either  |)ent-house,  or  shed,  or  any  Xhm^  ein 
by  the  wall.  On  the  right-hand  side  comip| 
into  this  nasty  room,  was  some  hay  made  ii 
the  form  of  a  bed,  with  a  little  bar  of  wool  Vf 

"lie 


way.  of  bolster.  And  Natns's  wife  was 
just  rising  from  this  bed.  Near  this  bed's- 
head  was  a  hole,  through  which  a  jack-tiM  bad 
formerly  run  from  the  kitchen.  The  hole  was 
almost  lai|re  enough  to  thrust  her  head  through, 
and  looked  quite  over  the  kitehen.  This  she 
never  observed ;  for  she  saw  nobody  but  oBoe 
during  the  whole  month,  and  then  it  was 
through  a  crack  of  the  door.  Over  this  bole 
were  the  pullies  of  the  jack-line,  which  she 
also  forgot  to  mention. 

In  short,  she  forgot  almost  all  the  things 
that  were  there,  and  supplied  her  defect  of 
memory,  by  naming  several  thin|^  which  bad 
never  been  in  the  room.  By  this  time  there 
was  a  great  com|nin^  of  people  in  the  bouse; 
some  led  by  curiosity,  some  hy  justice,  and 
some  by  motives  which  must  be  left  to  them- 
selves to  assign.  At  last  the  defendant  arrived 
with  her  mother  in  a  coach.  She  was  imme- 
diately conducted  to  the  kitehen,  and  set  on  the 
dresser.  The  door  leading  to  the  lumber-roooi 
was  then  open,  on  her  left  hand,  and  within 
three  yards  of  her,  so  that  she  could  then  aeeaU 
the  stairs,  and  a  considerable  part  of  the  room ; 
yet  she  took  no  notice  of  it.  Nor  did  she  drop 
the  least  hint  that  the  kitehen  she  was  then  io, 
was  the  place  where  her  stays  were  cut  off; 
though  she  remained  in  the  kitehen  five  or  sis 
minutes.  She  was  then  nlaced  on  a  chair, 
with  the  door  of  the  lumuer-room  open  o« 
her  right  hand,  wliere  she  could  see  up  into 
other  parts  of  the  room.  Still,  not  the  least 
notice  taken  of  it.  It  was  then  proposed  to 
carry  her  into  the  parlour,  where  all  the  fami- 
ly were  pri84)uers,  in  order  for  her  to  fix  upon 
the  person  who  cut  off  ber  stays. 

In  the  mean  while  the  prisoners  were  dis- 
posed in  the  room  so,  as  she  might  have  a 
distinct  view  of  them  all.  Mother  Welle  was 
placed  on  the  riGrht  side  of  the  chimney,  and 
the  gypsey  on  the  left.  But,  a  few  mmiitas 
before  the  defendant's  coming  into  the  parlour, 
the  two  old  women  hail  changefl  places,  and 
the  gypiey  then  sat  on  the  right  side  of  th« 


309] 


Jot  Wilful  and  Corrupt  Perjury* 


A.  D.  ns^. 


[310 


Cihjauiey,  Waning  over  tbe  firet  almoat  double, 
•ad  «moktPi(  her  pipe.  In  this  silualion  were 
they,  w lien  the  ilG^nilant  entered  ihe  ruorn  j 
^iJ  ill  a  momeutf  withoul  seeing  her  face, 
l^iuling'  10  the  ^yp«ej,  she  said,  This  is  the 
iroioan  who  foW»ed  me  of  my  nays.   The  poor 


dictmentf  yet  thii  is  aot  aI),  For^  instead  of 
relyinof  upon  circumsianee^,  hnwpfer  bhIis- 
fuclorvt  we  shall  ijo  furilifr,  and  shew  by  di- 
rect, positive  evidence,  ihat  the  defendant  waf 
not  in  tbif  room  in  the  month  uf  January > 
Natui,  a  pnur  lubouiing  man,  and  his  i^'ite. 


fhtd  woinan  smokiiicr  her  pipe,  was  inatlenii?e  '  will  tell  you^  tliai  this  bed  of  hay  waa  their 


I  to  what  vraa  said.      But  one  of  her  daughlers  , 
■^Mntedy  L^rd  I  mother,  the  young  woman 
^^^^it  robbed  her. 

^^RmL^diately  the  ^ypsey  starting'  from  her 
cbiir,  «nd  looking  in  astonishment  lull  at  her, 
cipotetl  her  hideous  face,  which  till  then  was 
cof ered  with  a  clom.  *  I  rob  you  !  Take 
oit  «vhmt  you  say  ;  if  yon  have  once  seen  my 
laoe,  you  cannot  mistake  it,  for  God  never 
Hide  tuch  another  V  And  being  told  that  this 
fict  was  commiited  on  the  l&l  of  January,  the 
old  woman  immediately,  without  the  least  he- 
iiution,  declared  abe  was  then  above  ane  hun- 


only  lodifing  during  Ihat  whole  month,  and 
for  live  or  six  weeks  before  ;  aod  that  they  lay 
in  this  ?ery  room  every  ni^ht ;  and  this  will  k>e 
confirmed  by  the  evidence  of  several  other  wit- 
nesses. They  \V\\[  all  lell  you^  that  this  room, 
being  the  repository  of  Wrs,  Wells^a  hay,  with 
which  her  horse  was  fed,  and  nf  pollard  for  the 
ie<Hling  her  pig,  waa  visited  by  some  or  other 
of  them  every  day.  That  this  black  pltt^lier, 
which  the  defendant  says  was  in  the  room  for 
all  the  time  she  was  there^  was  in  constant  use 
in  Ihe  family,  aod  filled  with  water  from  a 
neighbour's  pump  almost  every  day,  during  the 


dred  miles  off*,  in  Doraelshire.  And  George  i  time  the  defendant  pretendB  to  have  been  in  the 
Quires  then  said,  they  were  at  Abboubury  r  house*  That  none  of  them  ever  saw  the  de- 
M  tho  1st  of  January,  and  for  several  days  1  feadant,  or  heard  of  her,  till  the  came  down  oti 
.iw     D.^#„.t«.w.„=  «r  :„»«r,^r..,o  ,«^^^  *^  -.^  I  the  1st  of  February  with  Mr.  Alderman  Chitty'i 


ifbr«  Protestations  of  innocence  were  to  no 
Mrpote;  the  defendant  remained  positive,  and 
Bliry  Squires  must  suffer  for  it. 

Tm  next  thing  to  be  done,  was  to  fix  upon 
lbs  raom.  iu  the  firiit  place,  the  defeuilnnt 
iulTered  herself  to  he  led  up  the  great  stuir- 
cut  from  the  street  door,  and  so  into  all  the 
noma  forward.  But  neither  of  these  was  the 
VMai«      Not  the  least  noiice  taken  that  the 

£K«  iibe  was  conBoed  in  was  conlii^uous  to  tbe 
tclin],  and  but  a  lew  steps  from  it ;  not  at  at  I 
liketbb  stair-case.  At  last  she  was  conducted 
lo  (he  lumber-room ;  and,  alter  |iausiog  for 
aoQ»e  time,  she  declared  lb»9  was  the  place ; 
bot  that  there  seemed  to  he  more  hay  than  she 
W  obneived  during  ber  eonliuetneot  there. 
Tbe  witnesses,  who  had  heard  what  shs  swore 
hhtt  Mr.  Alderniati  Cliitty,  and  hud  made 
t&eir observations  upon  this  toum  ju^t  before 
bcr  ^iDiog  down  to  £nfield-Wash,  were  aato- 
'""*  bbe  then  recollected  one  of  tbe  three 
and  the  barrel,  basou,  and  tobacco^ 
M^uld  ;  neither  of  which  fihe  had  mentioned 
^n^.  But  she  remembered  nothing  of  the 
dMitof  drawers,  the  broken  easement  over  the 
*k«naey,  llie  hay-bed,  the  bole  in  the  walU 
Mr  tbe  pulley.  One  asked  ber,  Why  she  had 
»i*  openefl  the  window  casement,  and  escaped 
ibil  tray,  fteeing  she  might  have  done  it  with- 
*t  the  least  difficulty  ?  Her  answer  was^ 
ill  took  it  for  grauteu  it  was  nailed,  but  bad 
•ner  tried  it 

The  effect  these  observations  had  upon  such 
^^ her  friends,  as  did  not  go  there  with  a  re- 
*o)tttiaa  to  assist  ber  in  all  events,  is  eas^  to 
»€.     They  were  satisfied  she  was  an  un- 
and  withdrew  their  assistance.    Their 

AiiBai«reMr.  GaweuNash,  Mr. Hague, 

taJMf. Aldridkj'e,  citizens  of  established 

'^Ulation;  who  will  give  you  a  very  f;iilhful 
tod  circumstantial  account  of  this  whole  traiis- 
adioo. 

Though  what  baibeeo  already  opened  would 
M  ikuidaiiUy  suffideot  to  maimain  thia  iu- 


warrant 

Ezra  WbifBn,  who  keeps  an  inn  in  the 
neighbourhood,  will  be  produced  a  witness  to 
prove,  that  he  bought  of  Mrs*  Wells  a  sign, 
which  formerly  hung  at  her  door,  when  she 
kept  a  public-house;  and  on  the  ]8tb  of 
January  he  took  it  out  of  this  workshop,  aud 
Natus^s  wife  was  then  lying  there  upon  a  hay- 
bed.  He  will  fix  the  precise  day  by  a  very 
particular  circumstance,  in  which  he  will  h% 
confirmed  by  another  witness. 

John  WhifBo,  his  son,  went  with  htm  to 
bring  away  tbe  sign ;  aud  stayed  below  in  the 
parlour,  while  bis  father  went  up  into  tbe  room 
for  it 

Three  witnesses  will  be  jirofluced  to  pr^ve 
their  lopping  trees  by  tbe  siue  of  Mrs.  Wetla't 
house  on  tbe  :Stb  of  January  ;  ond  at  that  tery 
time  they  bad  some  conversation  with  two 
women.  Virtue  Hall,  and  Sarah  Howit,  another 
witness,  then  loukiog  out  at  the  window  of  this 
very  room,  where  the  defendant  is  supposes!  la 
have  been  confined.  And  the  time  of  their 
lopping  the«e  trees  will  be  fixed  alto  by  a  fiAh 
witness  to  thii  fact. 

Such  of  these  witoetaes,  as  have  been  in  tbe 
workshop,  will  give  you  the  same  account  of 
it,  as  you  will  find  by  the  other  witaesseato  the 
former  head  of  evidence. 

After  proving  tlie  defendant  perjured,  not 
ouiy  with  regard  to  tbe  person  whom  she 
cbarifed  with  having  robbed  ber,  but  also  as  to 
the  place  in  which  she  swore  she  was  confined  ; 
we  shall  need  an  apology  for  proceeding  fur* 
ther.  But  to  cut  ofi*  all  pretence  for  excuse, 
we  shall  beg  leave  in  another  instance  to  shew 
the  defendant's  guilty  by  ber  own  testimony.  In 
her  evidence  at  tbe  lUd- Bailey,  set  forth  iu 
this  indictment,  she  swurc  tha't  she  drank  up 
all  the  waler  in  the  pitcher,  about  half  an  hour 
before  the  time  of  her  escape.  Before  Mr.  AK 
derman  Chitty  she  swore  that  she  did  uot  drink 
it  ill,  but  soute  of  it  remamed  io  the  pitcher 

a 


311]  27GE011GE  II. 

when  site  came  away.  But  in  an  informatioD 
•he  made  before  Mr.  Fielding,  a  justice  of 
}>eace  for  Middlesex,  (which  we  shall  produce 
for  this  purpose)  she  swore  that  she  had  drank 
up  all  the  water  on  the  Friday,  and  so  had  not 
a  drop  to  drink  from  that  lime  till  the  Monday, 
on  which  day  she  escaped.  The  pain  of  thirst 
has  lieen  felt  by  almost  every  one,  at  some  time 
or  other ;  and  whoever  has  endured  it  for  three 
days  and  nights,  will  be  sure  to  remember  it  ai 
Idns:  as  he  lives. 

These  self-contradictions  therefore  could  not 
arise  from  mere  mistake  ;  except  only  it  was 
ibr^retting'  at  one  time,  what  she  had  sworn  at 
another.  A  liar,  says  the  proverb,  should  have 
a  good  memory.  But  he  who  is  resolved  to 
speak  tnith,  needs  take  no  pains  to  recollect  in 
what  manner  he  had  told  his  story  before. 

Gentlemen,  to  all  this  evidence  we  shall  add 
two  circumstances,  which  you  may  possibly 
think  worth  your  attention.  Soon  aher  the 
defendant's  supposed  return  to  her  mother,  she 
was  visited  by  a  midwife,  who  was  an  old  ac- 

Suaintance;  to  whom  the  mother,  in  the 
aughter's  presence,  related  the  whole  story. 
The  midwife's  curiosity  took  place  of  her  pity, 
tfnd  she  desired  to  see  the  shift  which  the  iJe- 
fendant  was  supposed  to  have  worn  for  a  month. 
7he  observations  made  upon  it  will  best  become 
the  witness  herself  to  tell  you.  They  lead  to 
suspect  strongly  that  it  had  not  been  worn  so 
long  as  was  pretended.  On  the  contrary,  it 
looked  as  clean,  as  if  it  bad  not  been  worn  three 
days. 

The  other  circumstance  is  a  striking  one. 
After  the  conviction  of  Squires,  there  was  a  re- 
examination of  the  case  before  the  late  lord- 
mayor,  in  order  to  pave  the  way  to  the  throne 
for  mercy,  which  proved  effectual.  The  de- 
fendant was  present  at  that  inquiry,  and  the 
bed-gown  which  she  pretended  to  have  taken 
out  of  the  workshop,  as  also  the  pitcher,  were 
both  produced.  She  was  very  desirous  of 
taking  ihem  with  her,  which  my  lord-mayor 
objected  to,  and  proposed  that  they  should  be 
deposited  in  some  public  place  to  *be  seen  by 
any  body,  because  they  might  possibly  lead  to 
a  discovery.  What  induct^  the  defendant  to 
be  so  extremely  anxious  for  the  possession  of 
this  tattered  bed-gown,  and  broken  pitcher,  is 
hard  to  say  ;  but  she  was  so  much  bent  upon 
it,  that  she  unwarily  claimed  a  property  in  the 
bed-gown,  and  said.  It  was  her  mother's,  if 
it  was  her  mother's  bed-gown,  how  did  it  get 
to  Mrs.  Wells's? 

Tills,  gentlemen,  is  the  nature  of  the  evi- 
dence we  have  to  lay  before  you ;  upon  the 
wi'iglit  of  which  there  can  be  no  doubt  out  you 
will  find  the  defendant  guilty. 

Mr.  WilUt.*  1  am  counsel  in  this  case  for 
the  crown  ;  and  though  I  cannot  help  feeling 
•ome  concern  fur  the  unhappy  situation  of  the 
prisoner  at  the  bar,  yet  1  own  I  r^ce»  for  the 

•  Id  17.06  Solicitor  Ocaenl  s  in  1707  a 
Jlkllgtfor  B  R. 


Trail  ofElizabfih  Cannings 


[319 


sake  of  truth,  and  for  the  sake  of  the  deluded 
multitude,  that  this  matter  is  at  length  to  re- 
ceive the  most  solemn  and  impartial  examim^ 
thin.  For,  in  what  light  soever  we  consider 
the  prisoner's  history  of  herself,  either  as  a 
gross  imposition  on  the  worid,  or,  as  othen 
would  have  it,  a  wonderful  and  miracofoot 
truth  ;  most  certainly  it  is  a  fact  about  which 
mankind  have  been  much  divided,  whifch  hat 
been  the  cause  of  great  nneasinest  and  diatrao- 
tion  in  this  country,  and  concemm^  which  the 
minds  of  the  people  ought  to  be  quieted. 

Nor  can  we  wonder  at  these  dissentioai 
among  the  populace,  when  many  able  wmk 
great  magistrates  have  engaged  in  this  dis- 
pute ;  some  of  whom  have  with  great  warmlh 
and  eagerness  declared  themselves  implicit  bs* 
iievers  of  this  amazing  story,  whilst  others  havs 
looked  upon  Elizabeth  Canning  as  the  moil 
vile  and  abandoned  impostress. 

I  do  not  mention  this  with  an  intent  to  throw 
reflections  on  the  patrons  of  either  side  of  lbs 
question ;  the  wisest  of  men  have  been  de- 
ceived, nor  will  it  be  any  imputation  on  their 
character,  that  they  have  been  S0|  ihiImi 
there  is  any  reason  ibr  conjecturing,  that  cilhsr 
through  partiality,  prejudice,  or  other  atiU 
worse  motives,  they  have  wilfully  shnt  their 
eyes  to  the  truth. 

Far  is  it  from  me  to  insinuate  that  eny 
thing  of  this  sort  has  happened  in  the  prsssit 
instance:  I  verily  believe  that  the  fountain  of 
justice  in  this  kingdom  has  flowed,  ttiroii^ 
all  its  channels,  unstained,  uncorropted,  and 
clear  from  all  manner  of  pollution.  I  hope 
that  those  who  have  sat  under  his  majesty's 
commission  of  the  peace,  have  acted  merely 
and  singly  in  that  capacity,  and  have  not  de« 
scended  from  the  dignity  of  magistracy,  to  be* 
come  advocates  for  either  party.  But  lie  that 
as  it  will,  it  is  not  our  dut^,  as  counsel  ibr  the 
prosecution,  to  take  notice  of  collateral  di^ 
cumstances  or  eztraindicial  behaviour  in  any 
one ;  it  is  our  business  only  to  hi)r  the  partieo- 
lars  of  the  charge  a|piinst  the  prisoner  bcftrs 
you ;  and  if  the  weight  of  evidence  appears 
clearly  to  be  on  the  side  of  the  crown,  I  da 
not  doubt  but  that  the  truth  will  be  irresistibhi 
and  that  we  shall  have  your  verdict  for  the  con- 
viction of  the  prisoner. 

And,  gentlemen,  the  prisoner  stands  indicted 
of  one  of  the  most  heinous  of  crimes;  an  en- 
deavour, by  wilful  and  corrupt  forswearing  her- 
self, to  take  away  the  life  of  a  guiltless  person ; 
and  without  aggravation,  in  the  black  cata- 
logue of  offences,  I  know  nut  one  of  a  deeper 
dye.  It  is  a  perversion  of  the  laws  of  ner 
country  to  the  worst  of  purposes;  it  is  wrest- 
ingthe  sword  out  of  the  hands  of  justice  to 
shed  innocent  blood. 

Let  us  reflect  a  moment  on  the  sad  catas- 
trophe which  mij^ht  have  ensued.  On  her  evi- 
dence Mary  Squires  was  condemned  to  he  exe- 
cuted, and  had  suffered  the  judgment  of  tin 
law,  but  for  the  wisdom  and  clemency  of  bis 
uigcsty,  ever  careftll,  ever  tender  of  the  livce 
evea  of  the  meucst  of  his  sobjeels.    Duriag 


I3I33 


jGr  Wilful  and  Corrupt  Perjury. 


A.  D.  17M. 


[SU 


^  tbe  A|y|4tcariori  iHut  f¥iis  made  to  the  (hrone  for  , 
» iwtfc^      *t'*  ^*Tf»  prisoner  abate  aufjbt  oHier  re- 
.  Ptttf!  liSt  tlie  UDhii|ipy  convict?    No; 

[^■|CLi  ^. .  ..Jit  nerer  inlbe  least  relenteil»  Got! 
^^Htf ,  tti«t  the  measure  she  has  meted  another^ 
HBid  this  tli&y  be  measured  to  tier  again  ! 

Wlieo  I  I  hi  ok  of  Ihe  age  of  the  ^urhoner  at 
tUt  bar,  scarcely  yet  above  Dioeteen  years  old, 
I  tto  hardly  per^aade  myself  that  haman  oa- 
ttttf  cotihl  &o  early  attain  to  such  a  piteb  of 
wtdeditess  :  but  when  I  attend  lo  the  very 
tfnog  nod  coDTinctng  proofs  we  hate  to  pro- 
due  apinfit  her,  1  must  gtve  tip  rtiy  reason  fo 
■I  iDeredulrty,  if  1  any  longer  doubted,  whe* 
ibef  -'.  u'liilty  urnot. 

A  aicii,  the  whole  we  bare  to  lay 

befaic  *uii  iu  ^upportof  this  heavy  charge^  will 
aitanfty  arise  under  one  or  other  of  these  con- 
ii4er«tiiiDs  r  the  numberless  loconsistencieS| 
mil  even  ctjntraiyct'iona  of  herself  in  her  owo 
tiideacef  as  tak^n  at  different  times  before  dif- 
fenml  magistrates;  the  improbability  of  her 
tHoryr  the  t<*stimoQy  of  a  multitude  of  wit- 
owes  of  credit  and  character,  who  contradict 
bir  ttiHrrially  in  almost  e?ery  circumstance 

men,  in  order  to  make  jou  scnsi- 
hk  huvi  tit -(|tientty  Canning  bas  ?aned  in  her 
«iD  account  ot  t&ese  facts,  it  will  be  neces- 
mij  to  inform  you  that  she  hat  been  examined 
01  Mih  four  several  times.  On  the  3 1st  of 
^^luotry  before  alderman  Chittyf  when  a  war* 
^HWitis  granted,  fnr  the  apprehendjfig^  IVIrs. 
■iWilk;  on  the  Kt  of  Kebmary  before  justice 
TV»l»ni»ker,  after  she  had  been  down  at  En- 
fittit-W^th  ;  on  the  7th  of  Fibruary  before 
'lelding  ;  and  on  the  21st  of  Febiuary 
111  of  8()Liires ;  on  which  last  exami- 
uum  we  hafe  assigned  the  perjariea  men- 
tiVQeil  in  tbe  indictment 

In  tracing  her  through  these  several  exami* 
lttian<,  we  shall  have  an  opportunity  of 
^•coti  rii»g  what  variations  from  time  to  lime 
llieretre  in  her  story,  what  new  circumstances^ 
iaft|)lements,  or  embeMisbmenls  were  aildeii  to 
J^fin^t  relation  ;  and  then  we  i^ball  be  able  to 
jihlgt  icDpiirtiiilly  wlrether  all  these  are  recon- 
ciliiMe  witti  truth. 

Before  alderman  Chilty  her  evidence  wa« 
joapty  this  ^  thnt  she  was  robbed  by  two  men 
<•  Moor  fields  of  her  inoney»  hat,  gown,  and 
^p:  that  there  she  received  a  blow  on  hfr 
"iil«  which  stunned  her^  hut  did  not  so  I'ai 
^ive  her  of  her  senses,  but  that  s,he  remem- 
^  her  being  afterwards  carried  through 
BUiojMgate'Street ;  that  she  then  was  dragged 
^  inorUer  Wells's,  and  there  strip!  of  ber 
••yi,  and  bet'ause  she  would  not  go  ibeir  way, 

£tt  is  termed)  confined  in  a  little,  sijuare, 
It^  or  darkish  room,  which  had  nothing  in  it 
fctit  in  old  grate,  an  old  table,  a  tiloo!  or  two, 
•oil  irfome  pictures  over  the  chimney :  that 
there  were  tour  or  five  pieces  of  bread  and  some 
Water,  ou  which  she  lived  t!ll  she  made  her 
*arape;  and  thnt  she  lay  atl  the  time  on  tne 
tiartf  hoards  :  that  she  got  out  of  tbe  window  ou 
I  small  shed  of  boards  or  peutOiuuse,  down 


which  she  slid,  baviiig  clothed  herself  with  an 

old  befl-gown  tod  handkerchief,  which  §hele<»k 
from  tbe  grate. 

This  is  the  short  account  she  gave  at  fiwrt 
before  the  alderman,  for  her  story  had  not  tben 
received  half  its  decorations.  The  circoni- 
stance  of  her  being[  subject  to  fits  was  not  then 
mentioned :  no  bmt  of  any  gypsey*»  being 
concerned,  much  less  any  description  of  Mary 
Sf|uires,  the  most  remarkable  woman  in  her 
person  that  ever  perbap«h  existed:  not  a  word 
of  any  hay  being  in  the  room  ;  though  it  np* 
peared,  on  her  coming  doi%n  to  Enfield,  that 
there  was  above  half  a  toad,  which  bad  been 
laid- in  the  summer  before.  Let  any  one  then 
believe,  if  they  can,  that,  during  her  long  con- 
finement, she  could  overlook  such  a  quantity  of 
bay,  and  continue  night  after  night  to  take  upr 
ber  hard  lodging  on  the  bare  hoanls  \ 

In  her  examination  before  justice  Tashmak^r, 
ber  story  receives  several  new  improvement*. 
Sshe  had  seen  Mrs,  Wells's  little  work-house, 
so  uow  drops  the  unfortunate  circumstance  of 
its  bluing  a  little  square  room  :  had  she  ever 
seen  it  before,  she  could  not  have  so  described 
iL  She  now  recollects  more  particulars  of 
what  tbe  gypsey  said  to  ben  that  she  pro» 
mixed  her,  if  she  would  go  their  way,  she 
should  have  fine  clothes  eiiuugh.  This  attack 
(if  it  deserve  the  name  of  an  attack)  on  the  poor 
innocent  girl's  virtue,  was  a  proper  subject  to 
excite  the  compassion  of  the  public,  and  a 
pretty  use  was  made  of  it  lu  the  several  adver- 
tisements, which  were  printed  at  that  time,  to 
rai«5e  subscriptions  for  her. 

She  now  swears,  that  al'ier  she  caioe  to  Mrs. 
Wells's,  a  man  unknown  to  her  took  away  her 
cap.  This  expressly  contradicts  her  former 
evidence,  in  which  she  snys  bhe  was  robbed 
of  her  cap  in  Moorfields.  fibe  now  inlroiluced, 
for  tbe  first  lime,  the  circumstance  of  the  fa- 
mous broken-mouthed  black  pitcher,  on  the 
water  in  which,  and  some  pieces  of  bread,  she 
lived  till  the  Wednesday  before  isbe  made  her 
escape,  when  the  whole  was  consumed.  No 
wonder  she  could  now  describe  the  pitcher, 
which  wa»i  artfully  conveyed  into  the  work- 
shop bv  her  friend  Adamsou  before  her  arrival 
at  Enfield  Wash. 

As  to  the  circumstance  of  her  provision  last* 
ing  ber  only  till  Wednesday,  it  neither  ogrees 
with  what  she  aftcrwiinls  swore  before  justice 
Fielding",  oor  with  her  evidence  on  the  trial  of 
Mary  Squires.  Troth  is  always  consistent,  but 
falshood  and  fiction  must  be  judged  by  another 
criterion. 

We  are  now  come  to  ber  examination  before 
justice  Fielding:  I  know  not  through  whal 
meibum  tliey  were  conveyed,  but  she  had  cer- 
tainly tiien  rereivcil  some  new  ligbi»,  and  ii  in- 
fititiely  more  learned  and  artful  in  the  manner 
of  her  tc  lling  her  st  ry .  The  men,  she  swears, 
in  Moorfields  feloniousTy  urd  vitdt-nlly  took 
from  hf^r  a  shaving  hat  Sec.  These  worda» 
'  feloniously  and  violenti),*  are  not  the  txpref- 
sions  of  a  poor  illiterate  girl^  perhaps  they  tire 
the  suggestion  of  her  solicitor. 


315} 


S7  GEQRGE  IL 


Trial  of  Elizabeth  Canningf 


[316 


She  DOW  swears,  that  the  blow  in  Moorfields 
threw  her  into  a  (it,  which  fleprived  her  of  her 
senses ;  and  that  she  was  used  to  ba?e  fits, 
which  lasted  six  or  seven  hours.  This  was  an 
useful  and  necessary  embellishment  of  her 
story,  as  a  fit  accounted  much  more  naturally 
for  a  six  hours  insensibility,  than  a  blow  which 
only  stunned  her  could  do.  That  on  her  reco- 
very she  found  herself  in  a  high  road,  but  that 
she  was  so  intimidated,  she  durst  not  call  out. 
Jt  was  proper  to  grive  a  reason  for  not  dointj^ 
what  any  body  in  her  circumstances  naturally 
would  have  done.  I  own  I  always  admire  and 
suspect  an  affidavit,  which  assigns  a  reason  for 
every  thing  which  is  sworn  in  it. 

She  then  swears  she  was  shoved  into  a  back 
Toom  without  any  furniture  at  all  in  it.  I  will  not 
.Hlwellon  this  trivial  mistake  in  her  account ;  and 
yet  surely,  in  the  imagination  of  a  girl  who  had 
had  ber  education  at  an  alehouse,  stools,  tables, 
and  pictures,  would  be  deemed  furniture.  But 
it  is  material  to  observe,  «he  now  says,  that  on 
Friday,  and  not  Wednoday ,  she  had  consumed 
all  her  bread  and  water.  This  alteration  of  her 
evidence  from  Wednesday  to  Friday  must  have 
its  design :  weak  and  ill  as  she  was,  could  she 
have  been  able  to  walk  from  Enfield  to  Lon- 
don in  less  than  six  hours,  which  is  eleven 
miles,  if  she  had  received  no  sustenance  for 
five  days  before?  Whereas  shortening  the 
time  of  ber  being  without  any  refreshment, 
took  off  a  good  deal  from  the  improbability  of 
this  part  of  her  story. 

In  her  evidence  on  the  trial  of  Mary  Squires, 
she  adds  still  some  new  circumstances.  She 
saysvon  her  recovery  from  her  fit,  she  found 
herself  in  a  great  road,  where  there  was  water. 
This  addition  was  not  without  some  view,  and 
I  think  there  is  no  difficulty  in  finding  out 
what  it  was.  It  supplied  the  world  with  a 
reason,  why  she  and  her  friends  at  first  di- 
rected their  inquiries  towards  Enfield- Wash. 
A  barrel,  saddle,  bason,  and  tobacco- mould,  are 
now  recollected  to  have  been  in  the  room : 
strange,  we  should  never  hear  any  thing  of 
them  before ! 

She  now  swears,  she  had  not  drank  all  the 
water  till  about  a  quarter  of  an  hour  before  she 
escape<l.  This  amendment  of  her  evidence  was 
with  the  same  intention  as  the  former  altera- 
tion from  Wednesday  to  Friday  ;  that  is,  to 
lessen  the  imurolKibiTily  of  her  being  able  to 
walk  from  Euneld  to  town,  without  once  stop- 
ping to  take  the  least  refreshment. 

These  are  some  of  the  most  glaring  contra- 
dictions in  her  own  evidence,  which  must  strike 
every  body  who  reflects  that  these  were  parti- 
culars iu  which  she  could  not  err  either  through 
forgetfulness  or  mistake ;   I  will  not  say  more. 

But  to  this  we  may  add  the  improbability  of 
ber  whole  story,  which  is  as  it  werefelo  de  te  ; 
at  least,  it  is  such  a  tale  as  requires  the  strongest 
proof  in  the  world  to  compel  us  to  believe  one 
tittle  of  it.  The  two  ruffians  to  continue  with 
ber  half  an  hour  in  so  public  a  place  as  Moor- 
fields,  and  though  it  was  so  early  io  the  evcn- 
ingi  (an  hdiday-eveoiDg  too)  yet  when  the 


screamed  out,  for  nobody  to  hear  ber !  but  why 
first  rob  her,  and  atierwards  kidnap  her  ?  Was 
it  their  design  to  rob  her  only  ?  or,  to  rob  ber, 
and  afterwards  carry  her  where  (in  thegypsey 
language)  thev  hopol  they  should  oblige  her  to 
go  their  way  Mf  a  robbery  ooly  was  designed, 
would  they  have  carried  with  them  the  strongest 
evidence  of  their  guilt  ?  If  their  purpose  was 
only  to  add  this  poor  girl  to  the  herd  of  wicked 
wretches  at  mother  Wells's,  what  reason  was 
there  to  begin  their  seducement  with  a  rob* 
bery  ?  At  these  kind  of  houses  a  young  woman 
may  be  easily  stripped  of  ber  money,  and  yet 
no  robbery  committed :  mother  Wells  might 
soon  have  made  herself  Canning's  cash- 
keener,  without  the  aid  of  a  blow  to  stun  ber, 
or  the  terrors  of  a  case-knife.  If  her  mordcr 
was  intended,  why  not  have  done  it  cm  the 
road  ^  Why  not  on  her  first  arrival  at  EnfieM- ' 
Wash  ?  Why  was  she  supplied  with  any  bread 
and  water  at  all  ? 

Her  fit  likewise  is  of  the  marvelkius  kind ; 
it  continued  on  her  near  aix  hours ;  went  away 
in  an  instant ;  and  though  she  was  used  to  have 
fits  on  any  fright,  yet  she  never  had  another 
during  her  long  and  terrifying  confinement 
How  amazing  Uiis  !  What !  a  girl  used  to  fits 
on  frights  not  have  a  fit  for  a  month  tocher, 
when  she  might  naturally  expect,  dunng  all 
that  time,  every  next  miuute  would  be  her 
last! 

But  let  us  now  follow  this  wonderful  girl  to 
Enfield ;  not  forgetting  one  very  extraordi- 
nary circumstance  in  her  evidence  before  the 
alderman,  that  though  she  was  stunned  in 
Moorfields,  yet  she  remembers  afterwards  hrr 
being  carried  tlirou|g[h  Bisbopsgate-street.  Is  it 
creilible,  on  her  coming  thither,  that  the  gypeeyt 
an  artful  procuress,  hackneyed  in  the  ways  of 
women,  should  only  slightly  ask  ber  to  go  their 
way,  and,  because  she  faintly  said  No,  should 
give  over  all  further  attempts  ?  Was  this  acting 
uke  the  president  or  lady  abliess  of  such  a 
house  as  mother  Wells's  ?  'Was  this  any  proper 
trial  of  the  prisoner  *s  virtue?  I  hope,  for  the 
honour  of  the  female  sex,  that  there  hardly 
ever  was  a  young  woman  not  above  eighteen 
years  of  age,  who  did  not  say  No,  once  at  least, 
especially  if  solicited  by  an  ugly,  old  decreptd 
hag.  And  yet  this  faint,  this  half- consenting, 
no  refusal,  is  the  only  reaM>n  given  for  her 
long  and  barbarous  confinement.  Her  confine* 
mcnt !  To  whst  purpose  was  it  ?  What !  starve 
a  young  woman  out  of  her  virtue  ?  Rich  food 
and  strong  liquors  may  do  much  ;  but  bread 
and  water,  cold  and  hunger,  are  not  apt  to  in* 
flame  the  passions. 

This  bread  and  water ;  a  broken  |iitcher  of 
water,  and  just  twenty -four  pieces  of  bread, 
about  equal  to  a  quartern  loaf;  before  alder- 
man Cbitty  these  twenty -four  pieces  were  not 
above  four  or  five.  But  be  they  more  or  lesip 
when  was  the  pitcher  of  water  and  these  con- 
veyed into  the  room.^  Was  there  any  expecta- 
tion of  snch  a  guest  ?  No.  Were  they  carried 
in  after  Canning  came  thither,  and  before  abe 
was  shoved  into  the  workshop  ?  There  waa  not 


J6r  fVilfiJ  and  Corrupt  Perjury. 


A.  D.  175*. 


[318 


to  msikt  such  a  pirticuhr  provi- 
tiippofiUion  tiiat  lUey  might  be 
the  rootu  alter  Caotiin^  ^vas 
IF  ex[trps$1y  swears,  tlmt  no 
the  room'frora  the  lime  of  her 
^ll  fehe  made  her  escape  Virtue 
iriri  Uvr  information  says,  thai  the 
water  was  conveyed  in  there  aftei"- 
I  1  fthall  lay  her  evlilence  out  of  the 
'ally  3^  she  h  in  this  circumstance 
ecMU  iiy  thtt  prisoner, 

it  Virtue  Hall's  name,  I 
king  notice  of  an  argrinuenl  1 
favour  of  the  prisoner's  inno 
ih[%  That  Cannin«^  and  Virtue 
il«ter  together  before  Virtue  Halloa 
mm\  yet  they  u^^rce  in  almost 
.nce  of  the  story,  «od  ihere- 
•ftileiK'e  niusi  te  true.  But 
ihtfl  is  a  very  easy  aod  nh- 
does  tiot  at  alt  A[)pear,  but  that 
irtue  11  till  were  together  before 
exatninatton  {  at  least,  it  is  cer- 
haf  e  found  out  snmc  means  of 
their  sentiments  to  each  other, 
swer  the  same  end.  It  is  Tery 
,t  ViriHu  Hair«  confess  ton  was 
t  (lot  u  hat  reason  I  know  not) 
jUKtice  pieltting.  8he  was 
1  retire  uith  her  solicitor, 
aln-  /s  solicitor:  her  iutm- 

i  into  writings  and  wa^  two 
[f  After  thi»,  w  bat  mi^jhly 

Utat  when  she  came  jnto  the 
*iin.  ^he  should  re(»eat  her 

thilities:  wn% 
111  subfiUt  so 
il    a    rtuautity    uf    bread   and 
ka,  wautin(r  noly  a  few  hoars? 
I  %kn*  iliould  husband  her  store  so 
bAf  e  ttome  of  her  bread  left,  accord- 
it  acx^«Mint|  tdl  tike  VVodneMlay  ; 
lier  iMstf  till  Uie  Pridav  before  she 
|N*;    and  that  sho  should  save 
'tuinicuhnis  pitcher   till   the   last 
li*enty*fourth  part  of  a  six- 
day  flufficient  to  satisfy  her  hun> 
i-n--  -»M  i^M  .li.,  ^i^f^riht  imme- 
1  in  order  to 

u.     i:^  uncertain  futu- 
nome  revelation  from 
e  of  the  faithful?  Perhajta 
Vom  hearen  up|H>ured  to  this  mirror 
vtnue,  and  iulormed  her,  if  she  eat 
f^  bread  a  day,  her  small  plt- 
ftdt  itst  her  till  the  time  eh(^  was  to 
Her  mother,  we  know*  is  » 
womJin ',  a  coiisulier  of  con- 
of  dreams  ;    perbaftf  the 
■iso  what  was  to  tiappen^  and 
:ii  when 
iie   was 
'.  uk  the 
ircum* 
uf  some 
the  pri- 


tikil  conduct  at 


sooer's  mnst  appear  to  exceed  alt  boaiMis  of 
human  probability. 

That  ihe  i^hould  have  no  evacuations  exce^ii 
by  urinCf  is  another  strange  circumstance, 
which  decorutpn  this  romantic  g'ir^s  story. 

But  aiiothtr  thinjjf ;  how  came  she  to  makt 
her  esca|}e  so  easily  at  lai^t,  and  yet  never  before 
once  attempt  it  ?  Were  tlkcse  dragons  always 
on  the  watch  ?  Surely,  if  they  sat  up  all  night, 
Ihey  must  sleep  io  the  day-'time,  and  the  pri- 
soner tells  you  the  bouse  was  then  very  ^uiet. 
£?en  the  eveniog  she  made  her  escape,  it  must 
astonish  us  to  find,  that  a  ^iH,  who  had  been, 
kept  so  long  without  her  proper  nourishmeiitt 
should  stop  no  where  on  the  road  to  take  the 
least  refreshment,  though  she  passed  by  se- 
veral bouses,  and  met  several  persons* 

But  these  wonders,  if  possible,  will  grow 
more  and  more  wonderftd,  when  we  come  nejtl 
to  examine  the  pUce  of  her  supposed  imprison- 
ment. This  room,  what  was  it  but  a  weak 
erection  of  bth  and  plaister?  cracks  and  cran- 
nies innumerable  in  the  sides  of  it,  at»d  the 
whole  buildiog  so  slight,  that  a  boy  of  ten 
years  old  might  io  au  hour's  time  have  demo- 
]isheil  any  part  of  it.  The  window  towards  the 
east  neither  boarded  nor  fastened  ;  hut  three 
feet  from  the  fljor,  and  but  nine  from  the 
ir^ound.  The  casement  so  large,  that  a  very 
fat  man  mtirht  hare  got  out  of  it;  so  httle  a 
way  from  the  ground^  that  a  child  might  have 
slipped  down  without  hurting  himself.  And 
yet  in  this  cage,  wiili  the  iloor  open,  was  thia 
extraordioary  i;irl  lonfmed  fur  a  month,  with- 
imt  once  trying  to  get  out.  The  story  indeed 
is  all  of  a  piece,  it  is  all  witchcraft  and  eu- 
chantmf-nt. 

But,  if  she  was  afraid  of  breakino^  out,  why 
shtiuld  she  not  call  out  of  the  window  far  ;i4- 
sistance  ?  It  was  near  at  hand  ;  the  Hertford* 
shire  road  was  not  above  sixty  yards  froru  the 
north  wiiidotr,  and  she  frequently  saw  the 
I'uadiman  pass  by,  who  used  to  drive  her  for- 
mer mistress.  Besides  this,  there  is  a  little 
lane  directly  under  that  window,  which  was 
used  every  rooroing  and  night  by  the  farmerf 
and  their  servants,  who  went  that  way  with 
their  cattle  to  the  marshes.  There  is  likewise 
a  pond  not  above  seven  or  eight  yards  from  the 
window,  where  the  townsmen  watered  their 
horses^  and  in  frosty  weather  it  was  a  sliding* 
place  fur  all  the  boys  and  girls  io  Ihe  viHagpe, 
Had  she  made  the  least  alarm,  there  were 
many  reaily  to  have  come  to  her  assistance ; 
but  we  hear  of  no  endeavours  of  this  kind : 
May  be,  the  gypsey  iind  put  a  spelt  upon  Iter  I 

But  perhaps  I  am  talking  of  impoMjIuhlira 
Io  persons,  »  hose  credulity  is  great  imnugh  to 
bfheve  whatever  is  artfully  tuld  them,  how 
monstrous  and  absurd  soever  it  may  he  in 
reality.  f  know  the  preseol  ege  to  be,  ill 
some  respectii,  a  very  credulous  oob.  Mr. 
Davy'e  story  of  a  flyi»|r  «»«"  toigbl  ootf,  for ' 
aught  I  know^  be  credited  \  it  ii  uot  loof  eioo*  J 
the  bottle  hero*  dreir  likr  him  a  poai«roaa  t" 


919] 


27  GEORGE  U. 


Trial  qfEOuiah  Cmum^, 


can 


tondttiee;  tfaid  harmne  Ukewiie  has  had  bcr 
admirers  and  protectors ;  but,  for  my  own  part, 
1  would  as  aooD  believe  either  of  those  atones, 
■a  harsy  which  is  equally  incredible. 

But  should  these  improbabilities!  I  might 
almost  say  impossibilities,  find  credit  with  you ; 
jrct  surely,  gentlemeo,  yau  cannot  be  totally 
inattentive  ta  the  testimony  of  several  peraons 
of  credit  and  character,  who  contradict  the 
lirisoner  ia  almost  every  circumstance  of  her 
narrative. 

As  to  her  deacription  of  the  room,  what  say 
Mr.  Nash,  Hague,  AMridge,  and  Mr.  Whhe 
the  sheriff's  ofiicer?  They  will  give  you  such 
ait  account  of  it,  as  must  amaae  you.  The 
three  fint  were  her  friends,  who  went  down  to 
Enfield- Wash  on  the  1st  of  February,  with  her 
master  Mr.  Lyon,  to  assist  in  this  notable  dis- 
coverv  ;  they  will  give  you  the  reasons  why 
they  nave  not  continued  to  be  her  friends :  that 
the  room  Canning  fixed  upon  as  the  place  of 
her  confinement,  was  a  long,  light  room,  not  a 
little  dark,  square  one :  that  the  dimensions  of 
it  were  above  thirty  long,  and  only  about  nine 

well  known  at  the  time  when  this  trial  occur- 
red, and  of  which  the  fidlowing  account  was 
published  in  the  Gentleman's  llagazine,  for 
January  1749 : 

<<  Monday  16. 

*'  A  peraon  advertised  that  he  would,  this 
evening,  at  the  Theatre  in  the  Hay-markiet, 
play  on  a  common  walking-cane  the  music  of 
every  instrument  now  used,  to  surprising  per* 
fectioo ;  that  he  would,  on  the  stage,  get  into 
a  tavern  quart  bottle,  without  equivocation; 
and,  while  there,  sing  several  songs,  and  suffer 
any  spectator  to  handle  the  bottle ;  that,  if  any 
spectators  should  come  masked,  he  would,  if  re- 
quested, declare  who  they  were;  that,  in  a 
private  room,  be  would  produce  the  representa- 
tion of  any  person  dead,  with  which  the  party 
requeating  it  should  converse  some  minutes  as 
if  alive,  &c.  to  begin  half  after  6. 

**  Accordingly  a  great  company  came, 
waited  till  f  o'clock  ;  then  growing  impatient 
and  noisy,  a  person  came  More  the  curtain, 
and  declared,  that  if  the  performer  did  not  ap- 
pear, the  money  should  be  returned ;  onein^the 
pit  then  crying  qut,  *  For  double  prices  the 
conjuror  will  go  into  a  pint  bottle,'  a  tunnult 
began,  and  a  person  in  one  of  the  boxes  threw  a 
lighted  candle  on  the  stage,  the  greatest  part  of 
the  spectators  hurried  out,  and  the  mob  break- 
ing in,  they  tore  down  the  inside  of  the  house, 
and  burnt  it  in  the  street,  making  a  flae  of  the 
curtain,  which  was  placed  on  a  pole  in  the  mid- 
dle of  the  bonfire.  Dunne  this  confusion  the 
money,  which  was  aecured  in  a  box  according 
to  contract  with  the  owner  of  the  house,  was 
carried  off.  Several  |ieraons  of  high  rank  being 
praaent,  the  pick-iNxJcels  made  a  good  booty, 
nnd  a  great  general's  rich  sword  was  k>st,  tor 
Ihe  reowery  of  wbteb  a  reward  ef  90  guineas 
waa  advertiaed* 

*  Cur  in  theatnim  (hoc),  GatOj  icvcre  ve- 
viitir 


that  there  waa  a  Urgt  euantiljr  of 
maty  hay-ned: 


feet  broad : 

hay  there,  and  an  old  maty  hay-bed:  that 
there  waa  no  grate  in  the  room, 'and  the 
chimney  so  overspread  with  oobwebe,  thai  k 
was  impossible  ther9  ahouM  have  bei^  a  grala 
there  for  aome  montha  before :  no  pietorea  over 
the  chimney,  nor  any  marka  that  thete  ever 
had  been  any,  but  in  their  plaoe  an  old  easa^ 
ment  joined  to  the  wall  by  cobwebs :  that  than 
were  in  different  parts  of  the  room  three  aU 
saddles,  a  nest  of  old  faahtoned  drawers,  and  a 
tub  of  ptiUard  :  that,  on  removing  the  cheat  of 
drawers  from  the  side  of  the  wall,  they  found  it 
so  affixed  to  it  by  filth  and  nastinesv,  that  thay 
are  certain  it  could  not  be  lately  brought  thert: 
that  they  observed,  under  the  pulley  of  an  aM 
jack-line,  a  large  hole  in  the  wall.  Which  hid 
communication  with  the  kitchen,  and  caa* 
mended  a  view  of  every  thing  that  waa  dm 
there.  This  hole  likewise  had  eaoaned  0» 
ning's  notice,  though  it  will  be  proved  to  ban 
been  in  the  same  condition  for  maifiy  jrennpaiL 
That,  on  the  most  careful  examination,  they 
could  not  find  that  there  either  waa,  orevarhad 
been,  any  shed  or  pent-house  under  the  aerth 
window,  or  any  thing  which  could  peanMy  ke 
mistaken  fiirit:  that  the  ro«m  had  a  lighl  case- 
ment in  it,  large  enough  for  a  person  la  get 
out;  and  that  Canning  beins:  asked,  why  she 
did  not  make  her  escape  this  way,  nio,  she 
believed  it  was  faatened,  nut  that  she  had  neisr 
tried. 

These  were  the  circnmstancesthat  ataffgcni 
their  belief;  nor  could  they  account  ftr  the 
prisoner's  remembering  none  of  these  thisgSi 
thouiph,  during  her  long  continuance  tMn^ 
ahe  had  leisure  enough  to  have  marked  every 
cranny  in  the  room,  and  to  have  counted  erciy 
nail  in  the  floor. 

These  witnesses  and  others  will  inform  yaa, 
that  on  her  coming  down  to  EofieM,  aha  em 
first  carried  into  the  kitchen,  and  aet  on  the 
dresser;  and  though  the  door  waa  open  whMh 
led  to  the  hay-loft,  yet  she  never  onee  ini- 
mated  that  this  was  tlie  place  where  her  Slays 
were  cut  off,  but  suffered  herself  ailerwardi  ti 
be  carried  over  the  rest  of  the  houae  in  acsrch 
of  the  place  of  her  imprisonment.  These  wi^ 
ncsses,  and  particularly  White,  will  speak  ti 
the  busy  ofiicionsness  of  Scarrat  and  AdamsMi 
in  pulling  down  the  boarda  of  the  north  wiadoVi 
and  in  conveying  the  pitcher  into  this  room  kt- 
fore  Canning  caiiie  there ;  and  that  one  of  UmB 
was  then  dispatched  to  meet  her  on  the  roeri^ 
with  what  view  one  may  easily  guess. 

But  in  order  to  give  you  more  eonvinciag 
proofs  that  Canning  never  waa  at  moth* 
Wells's  in  the  mouth  of  January,  Fortaaa 
Natua  and  Judith  his  wife  will  aaanre  yon,  thil 
they  lay  in  this  very  room  at  the  time  the  pri* 
aoner  pretends  she  waa  there.  Thia  fact  tmf 
both  asserted  on  the  1st  of  February,  and  tW 
they  would  have  given  in  evidence  on  Squint 
trial,  if  the  furnua  temper  of  the  times  wenii 
have  permitted  them,  without  the  banard  of  Ihrir 
Uvea,  to  have  come  into  court  ud  eivea  thrir 
teatimany.    1  wiU notaay  what  we  tht hhI 


»ij 


Jvr  W'dful  and  Corrupt  Perjury. 


A.D.  1751. 


Cd» 


•tteodiots  of  frAud  ami  imposture ;  bul  tUus 
ffodi  ia  cerUio.  truth  wants  not  a  party- mob 
to  tupfKirt  iL 

Ao«iiher  very  remarkable  piece  of  evidence 
in  this  |itirpr»»e  is  the  attestttlion  of  three 
ikooe&i  day 'labouring  uaen,  who  on  Ibe  Bib  of 
Jiotuiry  were  lopping  a  tree  jusi  urer-a^ainst 
the  east  window  of  um  room,  and  satv  Virtue 
fiilK  and  hamh  Hnwit  looking-  out  of  the  case- 
iMIt;  they  bad  a  deal  of  cbat  \^iih  tbese  twirls, 
ml  in  spill  r  ibrew  dirt  ai  iheui :  Karah  Howit 
ttiJi  coiitirtn  this,  wbois  oneof  niolber  Wells's 
4iugbters.  The  lime  w\\\  be  tixed  by  John 
Ciitaril^  a  pubtican,  wbo  used  at  that  season  of 
the  ^  "  '  *'•  'j'we  his  uei|;:liboursand  cudtomers 
it  uiineut. 

<J..u  i.. .  -1  W  birtin  will  itiU  you,  be  went  ioto 
ttiii  workshop  with  mother  W'Ah  herself  on 
tk«  irtb  ol'  January^  to  fetch  out  the  iroot  of  a 
■gii*arin  he  had  bought  of  her,  and  ibai  be 
thro  oltbervtfd  Fortune  Natus^s  bay-ljed^  at  the 
(wtnf  whit  h  lay  (bis  sign-arm.  His  evidence 
^il)  be  supported  likewise  by  bis  sou's ;  and 
the  lime  will  he  ascertained  by  a  note  of  band, 
»hicb  i»aik  jtjst  iheji  l^ecouie  payable^  and  for  the 
iiscbarge  of  which  be  was  ]^ihu|t  to  VVormteigh 
Is  Wrmw  so«ie  money.  Eacra  \V  biffin  will  ac- 
qui    '  '  r>w  he  came  not  lo  be  examined  at 

•^I  s*6  iriah     1  am  sorry  be  has  so 

gii^^*  *  i^.i^uu  for  his  absence.  If  the  avenues 
vkicb  lead  to  the  seat  of  justice  are  to  be  sur- 
nuoded  und  guarded  bv  an  inflamed  mob, 
Vhal  security  is  there  for  our  lives  and  proper* 
<i»:  H  hi  re  is  all  our  boasted  liberty  ? 

i  White^  a  poor  labouring  man,  will 
iuit  in  the  month  of  January  lie  was  at 
iBirtber  VVellsV  almost  every  nigtu  in  the  week, 
ud  that  he  frcquenlly  saw  the  people  of  the 
ftoily  go  in  and  onto!  this  mom  ;  though  ^tis 
toe  fie  waa  never  in  it  himself. 

Jotia  How  it,  and  indeed  alt  the  people  who 
•«tf  at  the  house,  will  affirm  that  mother 
'  .-pi  hay  in  this  roam  for  her  horse,  and 
i>)r  her  poultry,  and  that  some  on«  or 
-Hrr  lit  them  went  in  there  every  day.  If  all 
tbii  last  set  of  witnesses  are  not  f orsworo,  if 
^tooe  of  them  speaks  the  truth,  what  must 
^  think  of  Cannit)g*s  assertion,  that  there 
*ii  nobody  in  the  room  during  the  whole  time 
iht  was  kept  there? 

As  to  the  taking  of  the  bed-gown  out  of  the 
pile,  two  gentlemen  of  fijinre  and  reputation 
^1  acquaint  you,  that  the  prisouerf  on  her  exa- 
iuiatian  at  tlie  Mansion-house,  insisted  upon 
^ag  away  the  b«d-gown  with  her,  and  s&id^ 
U  was  her  moiherN.  If  her  mother's,  how 
^Id  it  be  found  at  Mrs,  \Vells*s,  or  taken  out  of 
^graie,  when  there  was  no  grate  in  theGbini' 

Old  Mrs.  Canning*!  midwife  will  inform  yon« 
Ihii  the  daughter's  shift,  uliich  she  pre  lend  eil 
l^bad  worn  a  month  in  that  nnsty  place,  was 
iotihrty  irnough  to  have  been  worn  by  a  clean* 
if  person  a  wet^k  ;  that  it  was  not  draggled  in 
tie  least,  nor  had  any  spots  of  dirt  on  it.  8ome 
0lber  parlieulars  you  will  bear  from  her  own 
OkOtilbf  which  perhapt  may  lead  you  to  gucae 

VOL,  XIX. 


what  wai  the  prlsonerV  employment  during 
this  long  recess  from  the  world  and  her  friendv. 

But  if  to  all  these  circuiustanccs  we  add  the 
incontestable  proof  we  have  to  produce  of  Mary 
Squires  and  heT  son  George  and  daughter 
Lucy  being  at  Ab(»olsbury  on  llie  ]sl  of  Ja- 
nuary, what  opinion  ought  we  to  have  of  the 
prisoner's  veracity  f  Let  it  be  remembered 
likewise^  that  this  it  no  new-invented  story  ; 
tur  at  Enfield-Washt  as  anon  as  the  gypaey 
was  charged  by  Canning  with  ha¥ing  cut  on* 
her  stays  on  the  fii-st  of  January,  she  imme- 
diately answered,  Tliatcan'tbf ,  for  I  was  at  that 
time  above  a  hundred  miles  off,  at  Abbotabiiry. 
This  fact  of  the  q-yj^sey's  being  then  at  Abbots- 
bury  will  be  atli^sled  by  above  thirty  witnesses. 
The  une.vceptionableness  of  their  chamctera, 
tlie  amazing  consistency  of  their  evidi'nce,  their 
remoteness  of  hiibitatiuo,  and  ignorance  of 
each  other,  as  well  as  their  having  no  induce- 
ment to  swear  faliety,  will,  J  am  certain,  not 
escape  your  |iarticu]ar  observation. 

These  witnesses  speak  not  only  aa  to  Ibe 
person  of  Mary  Squires,  hut  also  to  the  per* 
smis  uf  the  son  and  daughter,  who  travelleili 
with  her  ;  they  conversed  with  them  ;  and  se* 
vera]  of  them  have  known  the  old  woman  for 
many  years  last  past,  which  removes  all  poiai- 
bility  of  iuiagiuiDg  they  are  mistaken. 

These  witnesses  take  up  the  gvpsies  at  South- 
Parrot,  on  the  29th  of  December,  about  eight 
or  ten  milea  beyond  Abhotsbury  ;  and  from 
thence  from  place  to  place,  step  by  step,  bring 
them  to  Enlield-Wash,  but  not  till  the  a  1th  of 
January. 

At  Abhotsbury  Ihey  stayed  from  the  1st  of 
January  till  the  9th,  appeareil  pubhcty,  and 
were    present    at    several    dancmg  matches  s 
Lucy  had   a  sweetheart   there,   who  accom^ 
panieii  her  part  of  her  journeVi  Af^*l  ^^  ^n 
evidence  for  the  old  woman  on  her  trial.     Th« 
time  will  be  fixed  to  a  degree  of  demonstration 
by  the  eiciiie  books,  to  %vbich  Gibbons,  who  J 
keens  the  Ship  ale-house  there,  referred  himself' 
on  his  former  L^xamiuation.     The  young  man 
who  officiated   for  the  exciseman   lay  in  iho 
same  room   with  George  Squires,  and  is  now» 
attending  to  be  examined.     A  nnml>er  of  little , 
circumsitances    will    contirm  their   testimony, 
and  leave   the  truth  of   it   incontestible.      A 
piece  of  nankeen  left  at  one  place,  a  dead  horse 
seen  at  another,  a  letter   wrote  by  Lucy*s  di- 
rection at  Basingstoke,  and  %vhicb  will  be  pro^,^ 
duced  with  the  post-mark  on  it,  are  some  of 
those  unerring  tokens,  by  which  truth  is  al- 
ways to  be  distinguished  Irom  faUhood. 

If  the  gy psey  was  at  Abhotsbury  on  the  lai 
of  January,  God  (I  hope)  will  forgive  the 
prisoner,  for  she  has  sworn  that  l>«uh  the 
mother  and  daughter  were  then  at  £o6etd- 
Wash. 

After  all  these  contradictions,  absurdities, 
and  glaring  fahhoods,  need  1  remark  that  tlitt 
prisoner  (conscious  of  her  guilt)  did  not  sur* 
render  herself  till  she  was  in  danger  of  an  out- 
lawry ?  The  fugam  fecit  it  by  our  law  con- 
f idered  alwayi  as  a  strong  pro<»f  of  guilt,  lud  j 


I 


5?S] 


27  GEORGE  II. 


Trial  of  Elizabeth  Ctmmngt 


[3S4 


is  allowed  as  evidence  in  all  criminal  proieca- 
tions.  And  now  a  qaestion  noay  be  asked, 
Wliat  could  be  the  prisoner's  inducement  to  all 
this  ?  Mr.  Davy  has  sugfcfcsted  gain ;  and 
doubtless  she  and  her  associates  have  had  a 
pleniifid  harvest.  Perhaps  this  was  only  a 
secondary  motive ;  the  primary  one  might  be 
the  concealment  of  some  things  from  the 
world,  which  would  have  placed  her  conduct 
in  no  very  advantageous  light.  But  another 
question  may  be  asked,  where  was  she  all  tliis 
time  ?  Certainly  it  will  appear  she  was  not  at 
mother  Wells's,  which  is  all  that  is  necessary 
for  us  to  shew  in  order  for  the  conviction  of  tlie 
prisoner. 

It  was  agreed  upon  by  tiie  counsel  on  both 
sides,  that  the  witnesses  should  be  examined 
apart,  and,  when  examined,  not  to  return  to 
the  others.  And  they  gave  each  other  a  list 
of  their  witnesses*  names. 

William  Chetham,  (lie  produced  the  copy 
of  the  record  of  the  conviction  of  Mary  Squires.) 
This  I  examined  at  the  office  at  Hicks's-hall ;  it 
it  a  true  copy. 

Cross-examined  by  Mr.  Williams, 

Itlr.  Williamt.  How  did  you  examine  it? — 
Chcthum,  I  examined  it  with  the  clerk  of  the 
peace.  I  read  ibis,  and  the  other  was  read 
to  me. 

Did  you  read  the  record  ? — I  looked  upon  it 
when  the  copy  was  read  over,  and  saw  ttiat  it 
was  right. 

[The  copy  read  in  courts  The  purport  of 
which  was,  that  Mary  Squires  had  a  bill  of  in- 
dictment found  against  her  at  Hicks's-hall  be- 
fore the  grand  jury  for  the  county  of  Middle- 
sex, for  putting  Elizabeth  Canning,  spinster, 
in  bodily  fear,  in  the  house  of  Susannah  Wells, 
widow,  at  Enfield- Wash,  and  stealing  a  pair 
of  stays,  value  ten  shillings,  on  the  2nd  of 
January,  1752.  And  that  she  was  tried  for  the 
same  at  the  Old-Bailey,  in  the  February  ses- 
sions 1753,  and  found  guilty  of  the  indictment.] 

When  he  was  asked,  if  he  saw  Elizabeth 
Canning  sworn  upon  that  trial,  Mr.  Davy  an- 
sweredy  That  was  admitted. 

Thomat  Gurney  sworn. 

Mr.  Dary.  You  are  the  short-hand  writer,  I 
believe,  that  took  the  evidence  here  at  the 
.Old- Bailey,  upon  the  trial  of  Mary  Squires 
for  the  robbery  of  Elizabeth  Canning?— 
Cumci/,  Yes. 

I  suppose  you  have  got  the  minutes  you 
took  at  that  time.'— 1  have. 

Please  to  mention  the  evidence  she  gave. — 
The  contents  are  in  the  sessions- paper. 

You  are  to  give  an  account  of  all  the  evi- 
dence she  gave  at  that  time  ;  you  may  refresh 
gour  memory  hv  looking  oq  your  minutes. — 
he  said,  she  had  been  at  Ifiiilt-Petre  Bank  to 
aae  her  ancle  and  aont  there;  her  uncle's 
name  was  Thomas  CoUej.  She  went  from 
k-i-  -«'— ^  Vfllodc.  aild  iteTcd  there 


then  came  homewards;  her  ancle  and  aunt 
came  wiih  her  as  far  as  Atdgate,  there  they 
partdl  with  her ;  and  she  had  nobody  in  com- 
pany with  her ;  she  came  down  Hound8ditch» 
over  Moortields  by  Bedlam  wall;  two  mea 
came  to  her  by  Bedlam  gate,  better  than  a 
quarter  after  nine  o'clock ;  they  took  hold  on 
her,  and  said  nothing.  Then  she  was  asked, 
what  sort  of  men  they  were  ?  She  said,  they 
were  lusty  men.  She  was  asked,  if  she  lost 
any  thing  ?  She  said,  half  a  guinea  in  a  little 
box,  and  three  s!iillings.  She  said,  the  man 
that  stood  on  the  right  band  took  it,  and  todc 
her  gown,  apron,  and  hat,  folded  them  up,  and 
put  them  into  a  great-coat  pocket ;  she 
screamed  out ;  then  one  of  them  put  a  hand* 
kerchief,  or  some  such  thing  in  her  mouth  ;  it 
was  the  man  who  took  her  gown  that  did  that, 
and  that  she  saw  no  other  persons  b}'  at  that 
time ;  they  then  tied  her  hands  behind  her ; 
after  that  one  gave  her  a  blow  on  the  temple^ 
and  said.  Damn  you,  you  bitch,  we  will  do  for 
you  by  and  bye.  Then  she  was  asked  abont 
her  having  fits ;  she  said,  she  had  been  troubled 
with  fits  four  years,  that  they  were  convulsive 
fits.  She  gave  an  account,  that  the  Uow 
stunned  her,  and  flung  her  into  a  fit.  She  wat 
asked,  whether  those  fits  were  attended  with 
strugifling  ?  She  said,  she  could  not  tell.  The 
next  account  she  gave  was,  she  found  berMlf 
by  a  large  road  where  there  was  some  water, 
and  the  two  men  that  robbed  her  were  with  her: 
She  said,  they  lugged  her  along,  and  said.  You 
bitch,  why  don't  you  walk  faster?  that  one 
held  her  by  one  arm,  and  the  other  by  the 
other,  while  they  pulled  her  along,  and  took 
her  to  the  house  of  Susannah  Wells,  which 
was  about  four  o'clock  in  the  morning.  When 
she  was  asked,  if  she  could  ibrin  any  judgment 
of  the  manner  in  which  she  was  carried  to  the 
place  ?  she  said  they  dragged  her  along  by  the 
petticoats,  she  thought,  they  being  so  mrty: 
that  when  she  came  there,  it  was  not  day- 
light ;  that  it  was  day-light  about  three  boon 
after;  that  she  believed  it  was  then  about  four 
o*clock.  and  that  she  then  saw  the  gypsey-wo« 
man.  She  was  then  asked  the  woman's  name} 
and  she  said  Mary  Squires. 

Was  Mary  Squires  then  at  the  bar? — She 
was.  She  then  went  on  and  said,  there  were 
two  young  women  there,  but  she  did  not  see 
the  prisoner  "Wells  then ;  that  the  young 
women  were  standing  up,  and  the  gypsejr- 
woman  was  sitting  in  a  chair :  that  when  she 
wa^  brought  in,  she  took  her  by  the  hand,  and 
said,  if  she  chose  to  go  their  way,  she  should 
have  fine  clothes  ;  that  she  said.  No.  She  wa« 
then  asked,  if  she  explained  the  words,  Qo 
their  way  1'  she  said,  she  did  not :  that  thea 
the  gypsey  took  a  knife  out  of  the  dresser- 
drauer,  and  cut  the  lacing  of  her  stays,  and 
took  them  from  her.  She  was  then  asked,  if 
she  was  under  apprehensions  of  danger  at  thai . 
time?  she  said,  she  thought  they  were  going 
to  cut  her  throat.  She  was  asked,  if  she  eair 
Welh  there  P  ihe  said,  No  ;  and  that  Mary 
Squim  looked  at  her  pettwoaty  and  uid,  Bcre, 


915] 


Jkr  WUfiJ  and  Cormpt  Perjury. 


A.  D.  1754. 


[326 


jpoa  bitch,  tain  thmt,  or  I  tfill  ffive  yon  that, 
■ad  tfave  her  a  slap  on  the  face.  She  was 
Mkeu,  if  ahe  had  the  petticoat  io  her  hand  ? 
fbe  said.  No,  it  was  od  me :  afterwards,  she 
aid,  she  pushed  her  up  stairs.  She  was  asked 
la  describe  the  kitchen ;  she  said,  it  waa  on  the 
ijffat  hand  goinn^  in,  and  the  stairs  by  the  fire* 
wm.  She  was  asked,  what  they  called  the  place 
vhare  abe  was  f  she  said,  the  hay-lbft,  and 
that  it  vraa  not  then  day- light.  She  gave  an 
aoeonnt  that  the  room  door  was  shut,  but  she 
dU  Ml  kaow  whether  it  was  fast  or  no ;  that  the 
dser  waa  at  the  bottom  of  the  steps  in  the  kitchen. 
She  aaid,  that  if  she  (the  gypsey -woman)  heard 
haradrar  move,  or  words  to  that  purpose,  she 
and  aba  would  cut  her  throat.    She  was  asked, 


vkaiaoit  of  a  room  it  was?    she  said,  a  long 
,  with  a  fire-place  and  a  grate ;  that  there 


and  aaoot  twenty-four  pieces  of  bread. 

im  tbao  aakcd,  bow  great  a  quantity  of  bread 

tkere  waa  ?    She  said,  about  a  quartern  loaf ; 

■i  tbat  abe  had  a  penny  mince-pie  in  her 

iKkali  tbat  ahe  bougnt  to  carry  home  to  her 

Mlhar.    Then  she  gave  an  account  that  she 

meoofiiied  there  a  month  by  the  weeks,  all 

kta  few  boors ;  and  that  she  saw  nobody  in 

tta  room  all  that  time,  only  she  once  saw  a 

fOMokiok  through  the  crack  of  the  door,  but 

Ai  aat  know  who  it  was.   Then  she  was  asked, 

V Aa  bad  made  any  attempt  to  get  out  before  ? 

8tt  aaid.  No.    Then  she  waa  asked,  what  time 

dM  gal  out?  she  said,  about  four  o'clock  in 

Ibi  afcinoon  on  a  Monday.    Then  she  was 

liai  again,  how  long  she  had  been  confined 

ibmf    she  said,  four  weeks,  all  but  a  few 

iMas;  she  said,  she  broke  down  a  hoard  from 

^■iadow,  and  i^ot  out.    She  was  then  asked, 

^higb  that  window  was  from  the  grouud  ? 

^Iheo  pointed  to  a  place  in  the  court,  which 

*iiaboat  eight  or  ten  fleet  high :  she  gave  an 

■mant,  that  she  first  put  her  head  out,  and 

fUlMl  bold  on  the  wall,  then  got  her  body  out, 

Mdtbco  jumped  into  a  little  narrow  place  by  a 

hae.    She  was  ask«d,  if  she  did  not  hurt  lier- 

«tf?    aha  said,  there  was   some  sofl  clay : 

tei  she  gave  an  account  that  it  was  day- 

I^L     She  was   asked,  what   she  had    lor 

deikiog?  alie  said,  ahe  took  a  bed-gown  and 

kadkmhief,  which  lay  in  the  grate  in  the 

ddflinay.    Then  she  waa  asked,  if  she  saw 

lav  body  when  abe  got  out?   she  said,  she 

jM  not.    Then  she  went  up  the  back  of  the 

e,  crossed  a  little  brook  over  two  fields, 


II  ibe  thonght,  and  there  got  into  the  road- 
way, than  aba  went  straight  up  the  road  to 


She  gives  an  account,  that  she  did 
M  know  the  way,  therefore  aaked  her  way 
ti  Loudon.    Then   ahe  was  asked,  if  she 


by  Ibe  wayP  aba  said,  she  did  not  call 
ilHj  mom;  Woomiiig  over  Uoorfields, 


the  clock  struck  ten.  She  was  asked,  if  she 
acqiuinfed  any  body  with  it  ?  she  said,  No, 
she  got  to  her  mother's  in  Aldcrmanbury  a 
quarter  after  ten  o'clock ;  the  first  persou 
she  met  with  was  the  apnrentice,  then  ahe 
saw  her  mother  and  the  children;  her  mo- 
ther, she  says,  went  into  fits  directly. 

As  far  as  you  have  mentioned,  are  yon 
able  to  say,  upon  your  oath,  that  that  was 
the  evidence  that  the  ffirl,  upon  her  oath, 
then  g[ave  in  court  ? — The  substance  of  it  is 
the  evidence  she  gave  in  conrt. 

Cross-examined  by  Mr.  Morton. 

Mr.  Morton,  What  day  did  she  say  she 
was  robbed  ? — 1  have  it  iu  my  minutes  that  it 
was  the  1st  of  January,  which  was  the  day 
she  went  to  see  her  uncle. 

By  Mr.   Da«y. 

Now  describe  what  she  observed  in  the  hay- 
loft.— Gurnftf,  There  was  a  barrel,  a  saddle,  a 
basoo,  and  a  tobscco-mould,  in  the  room  where 
she  was.  She  was  asked,  what  she  meant  by 
a  tobacco-mould  ?  she  said,  what  people  do  up 
papers  of  tobacco  in. 

Now  please  to  go  on  where  yon  left  off*.— 
She  was  then  asked,  if  she  had  given  the  ac- 
count to  any  body  at  that  time  ?  she  said,  Yes, 
to  BIrs.  Woodward,  who  came  to  aee  her ;  she 
told  her  she  had  lived  upon  bread  and^  water. 

Did  she  say  Mra.  Woodward  was  so  fright- 
ened she  could  not  ask  her  any  queations  ? — She 
said,  she  did  not  ask  her  any  more  questions 
then.  Then  she  says,  Mr.  Wiotlebury  came  in, 
with  whom  she  had  lived  servant :  he  took  her 
bv  the  hand,  and  asked,  where  she  had  been  ? 
she  said,  on  the  Hertfordshire  road  :  he  said. 
Bet,  how  do  you  know  that  ?  she  said,  Because 
1  have  seen  my  unstress's  coachman  go  by, 
knowing  them  to  go  to  Hertfordshire;  she 
said,  she  knew  it,  for  she  used  to  carry  things 
to  the  coach,  and  fetch  them  back  again.  Then 
she  was  asked,  if  she  was  asked  any  questions 
that  night  about  the  room  or  jug  ?  she  said, 
she  had  told  them  there  was  a  jug  not  quite 
full :  that  they  asked  her,  how  much  ?  she 
said,  better  than  a  gallon.  She  was  asked, 
how  she  got  out  of  the  window  ?  then  gave 
an  account  how  she  tore  her  ear  in  getting  out. 
Upon  her  cross-examination,  she  (rave  an  ac- 
count, that  the  two  men  were  with  her  about 
half  an  hour  in  Moorfields,  and  that  nobody 
else  was  by,  and  there  was  a  box  taken  out  uf 
her  pocket :  then  bhe  gave  an  account,  that 
she  had  a  handkerchief  which  she  did  not  lose. 
She  was  asked,  if  there  was  any  litfhtnear  the 
place  where  she  was  first  attacked  ?  she  said, 
there  was  a  lamp.  She  was  askeil,  how  long 
it  was  before  she  came  to  hcrsell'l'  she  could 
not  be  sure,  but  she  came  to  herself  half  an 
hour  before  she  came  to  the  house  of  Wells. 
She  was  then  asked,  if  she  had  any  degree  of 
sense?  she  said  as  before,  she  had  none,  only 
about  half  an  hour  before  she  q^t  to  Mrs.  Wells  a 
house :  then  she  was  asked  the  question  again, 
to  which  aha  answered  as  before.    Then  she 


«7] 


27  GEORGE  11. 


was  uked,  if  she  bad  WDBe  eoougb  of  any 
tort  lo  know  by  wbat  means  sbe  was  conducleil 
tbere?  sbe  saici,  she  tbougbt  they  dragged 
her  alone  by  the  petticoats,  for  they  were 
dirty.  Then  she  gave  ao  acconut,  tliat  she 
was  in  a  p;reat  surprize  and  all  of  a  tremble, 
and  the  terror  made  her  sensible.  Then  she 
gave  an  account,  that  the  two  men  stayed  there 
no  longer  than  till  they  saw  her  stays  cut  off; 
then  Uiey  went  away,  before  she  was  put  in  the 
bay-loft.  She  said,  she  did  not  attempt  to  get 
out  of  the  hay*loft,  till  Monday :  sbe  was 
asked,  why  she  did  not  ?  she  said,  she  thought 
they  might  let  her  out,  and  that  it  newer  came 
into  her  head  till  that  morning.  Then  she 
was  asked,  where  she  was  sitting,  when  she 
saw  somdKNly  peepioff  through  the  door? 
she  said,  she  was  walking  along  the  room : 
sbe  said,  tbere  were  four  or  five  steps  up,  and 
that  she  did  not  iu  all  the  time  perceife  where 
she  was,  till  about  a  week  atller  she  was  there, 
and  that  was  by  looking  out  of  the  window  and 
seeing  the  coach.  She  was  asked,  if  sbe  was 
not  extremely  weak  ?  sbe  said,  she  was  ;  her 
words  were,  I  was  pretty  weak.  Then  she 
was  asked,  whether  she  was  that  way  before? 
she  said,  she  was  not.  Sbe  gives  an  account 
of  passiug  by  many  houses,  and  asking  the 
way  of  the  people  on  the  road.  Then  she 
was  asked,  why  sbe  did  not  go  into  any  bouse  P 
she  said,  she  tbougbt  she  might  meet  some- 
l)ody  belonging  to  that  house,  that  might  know 
her,  and  take  her  back  again.  Then  she  was 
asked,  over  again,  the  first  time  of  her  making 
the  discovery :  sbe  said,  it  was  in  her  mother's 
house;  and  then  she  gave  an  account  where 
her  mother's  bouse  is,  the  corner  of  Alder- 
nanbury .  Then  she  gives  an  account  to  ques- 
tions asked  before,  whether  sbe  saw  Airs.  Wells 
at  the  time  she  was  there  ?  she  then  said,  she 
saw  her  afterwards  when  she  went  down  to  the 
house.  She  was  asked  again  about  it,  whether 
she  is  ceitain  to  the  prisoner  Squires  ?  and  she 
says,  she  is  sure  she  is  the  person  who  cut  her 
stays  off,  and  she  was  sitting  iu  a  gown  and 
a  white  handkei chief  about  her  head.  She 
was  asked,  during  her  whole  confinement, 
whether  she  tried  lo  see  if  the  duor  was  fast? 
she  said,  she  hud  pushed  against  it,  and  found 
it  fast.  She  was  askrd,  whether  she  lieani  any 
nuise  in  the  kitchen?  she  said,  she  hoard  peo- 
ple blowing  the  fire,  and  passing  in  and  out ; 
and  theie  was  another  looni  sliu  heard  a  noise 
in  of  nights,  but  that  it  was  very  ipiirt  of  days, 
being  a  house  of  entertainment  iu  the  niglit. 
She  said,  that  she  eat  all  her  bread  on  the 
Friday  before  sbe  uot  out.  Then  she  was 
asked,  how  she  eat  it?  she  said  it  wiui  quite 
hard,  that  she  was  forced  to  souk  it  iu  the 
water,  and  that  she  drank  all  tier  water  ulNiut 
half  an  hour  before  alie  got  out.  Thru  aha 
was  asked  where  abe  did  her  oooeaiiMii  ?  alio 
eeid,  she  bad  nerer  b  Hool  tetog  tin  tiiae  ihe 
wee  there,  onlw  « 


Trial  of  Elizabeth  Cannings  [328 

[CrosB-examioed.] ' 
Nr.  Morton.    Were  Mr.  Nasli,  Mr.  Hagnet 
end  Mr.  Aldridge,  examined  as  wiloeiseii?^ 
Gurney.  They  were  not. 

Etiher  Hopkins  tty^om. 

Hopkins.  I  live  in  Doraetshire,  at  South- 
Parrot. 

Mr.  Willes.  How  far  is  that  from  Abbots* 
bury  ? — Hopkins.  I  don't  know,  it  is  the  lowest 
part  of  Dorsetshire ;  it  is  about  a  mile  fhwi 
Winyard's  Gap.  1  keep  a  house  of  eotertein- 
meutfor  travellers  of  all  sorts. 

Look  at  that  old  woman  siuing  there;  de 
you  know  her  ?— 1  really  believe  in  my  cee- 
science,  this  is  the  old  woman  that  waa  at  bbt 
house  on  the  3dth  of  December  1753,  with 
her  son.  1  remember  the  son  partioolaily 
well :  they  lod<^ed  there  one  night,  tod  weal 
away  the  next  morning. 

Do  you  remember  wbat  day  of  the  wei^it 
was? — 1  cannot  say  that  I  can. 

How  do  you  remember  the  day  of  the 
month  ?— Because  tbere  were  several  gentle* 
men  tbere  in  company  at  that  time,  and  two  of 
them  left  the  reckoning  to  pay,  and  I  pat  dewB 
the  day  of  the  month,  and  1  keep  my  book  by 
the  almanack. 

Do  you  remember  any  thing  of  her  dangfalCT 
being  there  ?— 1  don't  remember  whether  it 
was  the  daughter  or  not ;  1  remember  the  oM 
woman ;  1  think  1  never  saw  a  woman  mere 
particular  in  my  life ;  she  told  me  the  young 
woman  was  her  daughter,  and  the  other  was 
her  son. 

Did  they  tell  you  where  they  were  goipg 
next  morning?— No,  they  did  not. 

Look  at  the  young  man  and  young  womu 
behind  her ;  do  you  know  them,  or  either  of 
them  ?— That  is  the  man  (pointing  to  George 
Squires)  to  the  best  of  my  knowledge. 

Cross-examined  by  Mr.  Morton, 

Mr.  Morton,  I  think  you  did  not  eeem  to 
speak  |K>sitive1y  to  the  old  woman  ? — E.  Hagh 
kins.  1  never  saw  a  woman  more  like  her  u 
all  the  da>  s  of  my  life,  and  1  really  believe  she 
is  the  woman. 

Have  you  not  many  passengers  lie  at  year 
house?— Some  or  other  lie  at  my  house  every 
night. 

What  was  her  business?  did  she  sell  any 
thing  ?— 1  aske<l  them  wbat  they  soki  ?  they 
told  me,  hanUware. 

Did  tliey  sell  any  thing  in  your  honee  ?— 
No. 

Did  you  see  any  thing  they  hail  to  sell  ?— 
The  man  canrie«l  a  bundle  or  bag,  not  very 
large,  under  his  arm. 

Ilad  they  e  horse? — I  suppose  they  had 
not. 

lied  you  ever  seen  the  old  woman  before  ?— 
N0|  1  had  not. 

il^icf  F^rnkam  sworn. 


rnJ^mn.  Ilivtat  Winyard'e Gap ;  itiia 
mtik  ftwi  Bo«lh*nmt|  u  tha  Iqmt 


q 


^  Wilful  and  Corrupt  Perjury.  A.  D.  1754^  [330 


put  df  Dor9H«liir*e,  ftuti  ftbotit  tea  from  Ah- 
UttlHirf  }  it  Ur«  btftwcen  I  hero, 

Mr.  u«acBf«ir.  How  far  is  it  from  Lirton  ?— 
JL  Fkrmkem,  t  *{n  not  justly  know^  1  b<rlieye  it 

litl0till'  1 H  rnUes. 

Looltai  ^oinan;  do  you  know  lier? 

'—I  rrsDCQibcr  J   saw  her  ouce  oa  &  Saturday 

between  tight  tind   nine  o'clock*  a 

li^aAcr  New  Chrislmas  175Q;  she  came  in 

M  Wf  bociir  for  refr«shnieui:  I  keep  a  public 

hmm^t    I   t€K>k   particular  nuiice  of  her,  and 

brr  to  a  picture  that  I  had  in  the 

of  old  mother  Hhipton  ;  there  was  a  young 

nimi  wcinaan  with  her. 

ijmk  «l  Ibat  tii»n.«l  see  him  j  I  kuow  him 

ftrlbetJy  «i#tl ;   it  is  her  sou. 

LmoIc   fti  the  yuuni^  woman  near   him.— >I 

ittfk,  to  my  knon  letl^e^  the  is  the  same  per- 

Iso  ;  lliey  utrnj  «<!  whU  me  almost  an  huur  that 

PMnriiiiif  I    I  net er  saw  them  before  or  since ; 

^^mj  mA  Mit  aaart  of  beer  and  some  bread  and 

Omtrn^  «od  IcM  me  they  would  come  to  see  me 

tipya  Im  OM  Chrislmagi  hotidays  ;  they  asked 

rn^htrn  fir  it  was  to  LitioD»  and  went  up  the 

r«nf  ai  lltffie  of  them  together  towards  it;  1 

wmeenm^  I  know  the  old  woman  and  her  son. 

HviP  Ur  u  l*itton  from  your  house? — U  is 

lia«rclrrcti  cniics. 

Ha4  joo  at^n  them  before  Ibey  came  to 
j^mhmumT^—l  was  cominif  out  of  South* Par- 
fit  !•  tb*  Friday  ni^rbt,  and  met  them  as  ihey 
INK  g'M^  iti«  aud  the  next  morning  they 
Mtti  IB  my  house ;  1  told  my  mother,  as  we 
««l  ItOf  bbg  and  talking,  that  I  had  met 
imBf^ifs;  and  she  asked  me,  if  I  was  cot 


^Km/^tmm» 


mm  «!•  TOQ  know  that  this  was  before  Old 
nBHittisf — My  mother  was  a-brewing,  and 
l9mm4  Mk^  her,  if  she  wouUt  let  me  go 
HGmkWme  market,  which  is  on  a  Saturday : 
AstiU  me,  she  cotild  not  ^pare  me,  and  said  it 
*«^  It  rare  enough  to  go  on  Monday  to  buy 
M^  ^i^a  ttgaiDst  Old  Christmas  ;  and  thi's 
^mjmtm  Ibote  people  went  out  at  the  door, 

Cro«»' ex  Mini  tied  by  Mr,  Nsrei* 

Ur.  Niirts^    W  hen  was  the  first  time  you 
«« tktiB  f— il.  Furnham,  1 1  was  on  itie  Friday 


t, 


rim  kiiiw  where  they  lay  that  nig  lit  ? — 
^  t  mtmiit  tell  I  when  they  came  into  ray 
hmm,  tbey  asked  me,  bow  far  it  was  from 
^t^-F*arr*H,  and  1  iMijd,  one  mile, 

*«fii  i«  your%  yon  keep  ? — 1  keep  the 
:  c  Tbrce  HortMs^sboes ;  it  is  a  public- 

Win!  Blasts  you  think  they  were  gypsies  ? — 

bcsttit  ility  were  alt  thre«  toi^ether ;  one  had 

inW  k*g  isi  kb  hand,  not  a  large  one  nor  a 

"  M«e ;  it  was  about  as  much  as  I  could 

mry  u^*r  my  ann  ;  a  was  »  little  fardle. 
Wlfelcii  b*d  that  / — To  the  be*l  of  my  know* 

Mfv,  ikv  man  had  the  bug. 
How  was  tills  old  wnnian  dressed  ?— She  had 

SBfl  «l  a  ftr»l>-colourcil  elo&k  on,  and  a  aort  of 

$fm  ft  «Mt  or  nffid  f<— It  wat  oot  ragi. 


flow  was  the  daughter  dresseilf— She  hail 
a  white  gown  on  nod  a  retl  cloak  ;  it  was  a 
sort  of  a  holland  gown,  very  clean  and  oval, 

Then  she  did  not  look  like  a  traveller  or 
gypsey  by  her  dress  ? — No,  she  did  not. 

Did  you  inquire  of  them  what  bustocssthej 
were  ot  ?— No,  I  did  oot  enquire  that;  they 
asked  me  for  one  mug  of  beer,  and  1  drawed  it 
them;  they  stayed  almost  an  hour. 

Were  you  with  Uiem  all  the  time  ibey 
slaved  ? — Ves,  1  was. 

Look  at  them,  and  tell  us  from  the  dress 
they  are  in  now,  and  the  dress  they  were  in 
then,  whether  you  are  certain  they  are  the 
same  persons  ? — To  the  best  of  my  knowledge, 
they  are  the  same  persons* 

Mr.  Morton.  1  think  it  is  opened  that  the 
young  man  and  young  woman  (meaning 
George  and  Lucy  Squires)  are  to  be  examined  ; 
if  so,  they  ought  not  to  be  in  court  to  heat 
the  other  witnesaet  examined, 

Mr.  Davy>  Then  I'll  either  call  thetn  Dtxtt 
or  not  Qt  alf,  which  you  chuse. 

Mr.  Morton*     Then  call  them  next* 

Mr*  Narct.  Did  they  make  the  same  ajH 
pearance  they  do  now,  or  a  diflereot  one?^ — A* 
Faniham,  They  were  very  well  dressed,  aa 
they  are  now  ;  they  were  clean  and  fitty. 

Did  the  old  woman  appear  to  be  as  weak  at 
she  is  now  ? — She  was  lery  unhealthy,  seeni- 
tngly,  coming  up  against  the  hill. 

Could  she  walk  without  assistance  ?-*-Sfae 
did  oot  bold  by  them,  they  walked  before  Iter. 

Can  you  take  upon  you  to  swear  to  the 
identity  of  her  i»erson  ?-»-J  do  think  she  is ;  1 
totik  a  true  observation  of  her ;  she  had  a  great 
nose  and  lips. 

Did  you  take  obserTation  of  her  daughter  ; 
—  I  did  j  she  seemed  to  be  a  very  cleati  sort  of 
a  body,  and  of  a  black  com|de]cion. 

What  did  you  think  them  to  be? — 1  took 
them  to  he  travellers  ;  I  did  not  know  whether 
they  sold  any  thing  for  a  livelihood  ;  they 
offered  me  uothing,  and  I  asked  them  for  no* 
thing  ;  they  paid  for  what  they  had. 

Mr.  Dauy.  Lucy  must  go  ont  while 
George  is  examined.  (She  goes  out  of  the 
court.)* 

♦  See  vol.  13,  p.  3^8. 

In  Scotland,  **  Our  custom ^^  says  Mr, 
ITume,  (Commentaries  respecting  Trial  for 
Crimes,  chap.  13,  vol.  2,  p.  18&)  **  is  oot  con- 
lent  with  reprobating  all  instructions  given  » 
wiiness  how  he  himself  shalbdepone,  but  de- 
privea  him  even  as  far  as  possible  of  all  op- 
portuoity  of  learning  what  the  other  witnesses 
have  sworn,  and  aims  at  obliging  him  to  give 
bis  evidence  according  to  his  o^rn  understanding 
of  matters,  and  to  so  much  only  of  the  fact  as 
he  knows  of  his  own  proper  knowledge.  And 
herein  our  purpoise  is  not  only  to  obviate  the 
risk  of  any  combination  among  the  wiinecses  to 
wrong  the  pannel  by  concerting  a  story  with 
each  other,  but  to  prevent  even  that  imprei- 
sion,  which  the  account  gi^cn  by  one  witnoat 
may  naturally  make  on  the  GQmd  oi'  another. 


331] 


27  GEORGE  11. 


[332 


George  Sguires  swoni. 

Mr.  Davy.  What  relation  ii  that  old  woman 
to  yoa  P— £^.  Sguires.  My  own  mother,  and  the 
young  woman  that  is  turned  out  is  my  sister 
Lucy. 

Where  were  you  on  the  Christmas  before 
your  mother  was  taken  up  ? — Really  I  cannot 
tell  you. 

Were  you  ever  in  Defonshire? — I  am  not 
acquainted  there ;  I  was  in  Somersetshire  in 
Qneen-Camneal* 

Were  you  ever  in  South -Parrot  ?-«>I  was. 

Can  you  remember  the  time  ? — I  came  tliere 
on  a  Fnday  night. 

What  day  of  the  month  was  it?— It  was  on 

With  this  view,  before  proceeding  to  take  the 
proof,  all  the  witnesses  on  either  part  are  shut 
up  in  an  apartment  by  themselfes,  whence  they 
are  successively  and  separately  called  into 
court,  to  be  examined ;  so  that  it  is  a  good 
objection  to  any  one,  if  he  has  been  left  at  large, 
and  has  heard  the  testimony  or  part  of  the  tes- 
timony of  another,  by  which  he  may  shape  his 
own.  This  is  our  rule,  not  only  as  to  the 
several  witnesses  considered  in  relation  to  their 
fellows  on  the  same  side,  but  to  those  on  the 
other  side  also;  since  those  for  the  pannel, 
having  leamedihe  state  of  the  evidence  against 
him,  with  its  weak  and  strong  parts,  might 
otherwise  be  instructed  how  best  to  oppose  and 
countermine  it.  Na^,  which  is  a  tpretit  deal 
stronger,  and  liable  indeed  to  objections  of  no 
little  weight,  more  especially,  as  it  is  of  late 
Tears  only  that  this  degree  of  strictness  has 
Been  introduced,  witnesses  have  in  more  than 
one  instance  been  set  aside,  because  they  had 
been  precognosced  even  in  presence  of  each 
other.  In  the  trial  of  John  Lindsay,  [January 
31st,  1791,]  thirteen  exculpatory  witnesses 
were  rejected  (for  if  the  doctrine  in  good,  it  ap- 
plies equally  on  either  side,)  because  they  had 
assembled  at  the  desireof  the  agent  for  the  pan- 
nel, and  had  the  declarations  taken  down,  and 
read  over  in  presence  of  the  whole  oftbcm.  But 
1  must  observe,  that  here  there  was  something 
more  than  mere  accidental  presence:  it  was 
the  unauthorised  and  deliberate  act  of  a  party, 
calculated  to  bias  and  prepare  his  witnesses. 
In  the  trial,  however,  of  Brown  and  Murray 
[July  13,  1791]  for  deforcement,  the  objection 
was  sustained  to  John  M*Parlane,  that  he  had 
been  present  at  the  taking  of  the  nrecocfiiition  ; 
which  being  the  situation  also  of  all  the  other 
witnesses,  the  prosecutor  declined  to  call  them, 
and,  in  consequence,  the  pannels  were  acquit- 
ted. This  rule,  supposing  it  to  be  fixed  in  such 
a  manner  as  not  to  be  altered,  must,  however, 
be  received  in  a  reasonable  sense,  and  such  as 
is  consistent  with  the  necessary  course  of  busi- 
ness in  taking  precognitions..  It  does  not 
therefore  apply  to  the  magistrate,  who  is  ofii- 
cially  present  in  taking  the  several  examina- 
tkMM ;  and  so  it  was  settled  in  the  trial  of  John 
Ker  [Jan.  91,  1798]  for  fire-raising,  where 
iMh  an  olgectlDn  WM  ilAltd  to  ThoiDM  Ghrit- 


Trial  ofElizdbdh  Canningf 

the  ^9th  of  December  ;  my  mother  and  i 
Lucy  were  there  with  me. 

What  makes  you  certain  as  to  the  time? — It 
was  after  New  Christmas,  that  made  mo  Ukt 
an  account  of  it. 

At  whose  house  were  you  ?^I  pnt  up  at  the 
sign  of  the  Red  Lion,  to  the  best  of  my  know- 
ledge ;  her  name  is  Hopkins ;  I  have  been 
there  since,  we  stayed  there  hot  one  night 

From  whence  did  you  come  to  that  place  f 
— We  came  from  it  by  Yeovil. 

What  was  the  last  village  yon  came  Iron, 
when  you  came  to  South  •Parrot?-—!  cannst 
recollect  it. 

Where  did  you  lie  the  night  before  you  cameto 
South-Parrot? — I  cannot  tell  the  place's nam^ 


tie,  and  James  Hogg,  the  baillies  of  DunhsA 
Those  witnesses  too,  who  are  only  odlcd  li 
authenticate  the  pannePs  decUuiition,  which  h 
quite  a  separate  proceeding,  and  posterior  H 
the  main  fact  related  in  the  libel,  seem  not  Is 
be  within  the  mle  of  this  prohibition.  To  i^ 
the  truth,  there  seems  to  be  some  reason  fit 
reconsidering  this  whole  matter,  before  it  is  tot 
late.  Because  it  is  a  thing  which  natwallyt 
and  without  any  purpose  of  doing  wrong, 
so  oAen  happen,  that  in  the  first  and  moi 
terial  steps  of  a  precognition,  such  as  the  _ 
tion  of  stolen  goods,  the  identifying  of  a  robber 
or  the  like,  the  persons  who  have  recoverad  tkt 
goods,  or  seized  the  robber,  or  so  forth,  go 
before  the  nearest  magistrate  at  one  tinst,  aid 
tell  their  story  to  him  together.  And  in  tUi 
there  seems  to  be  nothing  more  dangerous 
than  in  the  circumstance  of  the  witnesses  es» 
versing  with  each  other  on  the  subject  of  the 
fnture  trial,  a  thing  which  always  happea^ 
and  cannot  be  prevented.  Besides  in  hearing 
each  others  declarations,  they  are  not  nsastos 
of  each  others  testimonies  on  oath  in  the  trisi, 
which,  as  all  who  are  versant  in  that  ssrt 
of  business  know,  are  ot\en  materially  difl^ 
ferent  from  the  other.  Moreover  it  seema  M 
be  unfit  that  it  should  be  in  the  power  of 
every  ignorant  justice  of  the  peace,  nay  efci 
of  a  designing  witness,  or  a  crafty  agenl^ 
thus  to  sacrifice  the  public  interest,  and  bin- 
der the  course  of  justice.  At  all  events,  cf« 
with  respect  to  the  evidence  upon  oath,  thi 
judge  will  not  suffer  the  scrupulousness  of  oar 
practice  to  l>e  made  a  handle  of,  for  the  indnl- 
gence  of  spleen  or  ill  humour  on  either  part* 
In  the  trial  of  Fullerton  [August  12,  1768]  Ar 
assault  and  battery,  a  motion  having  bcM 
made  to  have  all  the  witnesses  removed,  it 
requested  for  the  prosecutor,  that  John  Spenca 
his  agent,  should  be  allowed  to  remain,  whoa 
the  pannel  had  cited,  purely  to  deprive  the  pro- 
secutor of  his  assistance :  Spence  not  haviig 
been  present  on  the  occasion,  and  knownf 
nothing  of  the  matter  but  by  information  ham 
others;  which  upon  enquiry,  appearing  to  hi 
true,  an  exception  was  made  m  his  behalf.*' 

See  also  chap.  3  of  the  same  work ;   aa  H 
taking  in  precognitions  the  declaration  of  mA 
witness  foparitely. 
8 


;wsa  d 
encal 
hoa^ 


fir  JVUfid  and  Corrupt  Perjury. 


A.  D.  1754. 


jt  had  joar  mother,  sister,  and  you 
nog'  together  ?^l  came  from  home 
WD- Butts  in  Southwark,  ami  I  went 
:e,  u  near  as  I  can  guexs,  about 
j^bt  weeks  before  Michaelmas. 
»u  recollect  the  place  you  lay  at  be- 
came to  South  Parrot? — It  was  a 
5  village. 

ny  miTes  had  you  travelled  that  day  ? 
trafelled  about   seven   or   eight 

id  you  go  the  next  day,  that  is  the 
»I  went  to  Litton. 
lere  a  town  between  South-Parrot 
' — There  is  Winyard's  Gap. 
ii  South-Parrot  from  Litton  ?— It 
elf cT miles,  to  the  best  of  my  know- 
lay  &t  Litton  on  the  Saturday,  and 
ter  and  mother  there  on  the  Sunday 
ttd  went  to  Abhotsbury. 
Vf  if  the  month  was  the  Sunday  ?<^ 
SM  day  of  the  month  ;  niy  mother 
ra  one  night  aHer  me ;  Mr.  Clarke 
good  regard  for  my  sister  Lucy ;  he 
■ttieart  of  her's,  and  she  of  his ;  I 
I  at  Abbotsbury,  and  lay  at  Gibbons's 
night ;  then  m  the  morning,  which 
Holiday  the  Ist  of  January,  Clarke 
to  Litton  ;  there  we  dined  upon  two 
ch  I  bought :  my  mother  was  sur- 
oy  staying  all  night  at  Abhotsbury, 
eot  ID  pretence  to  see  what  was  the 
i  me,  thinking  I  was  sick ;  there 
I  was  gone  with  Clarke  to  Litton, 
me  back  again  to  Litton  before  we 

'  ii  Litton  from  Abhotsbury  ? — It  is 
IT  miles. 

Iked  with  your  mother  to  Abliots- 
pbod^,  that  I  know  of;  afUr  dinner, 
Tf  Bister,  Clarke,  and  1  walked  to 
ff  and  we  danced  there  ihat  night  in 
iM*a  parlour  i    he  keeps  the  sign  of 

»mpaoy  had    you   there? — There 

eat  many  of  my  acquaintance ;    I 

Ibem  ail  to  mind ;    there  was  Mr. 

.  ahop- keeper,  and    Mr.    Bond    a 

Iter,  he  got  fuddleil  that  night;  Mr. 

uerally  drinks  cyder,  he  came  in  for 

»t  of  cyder. 

as  your  partner  ?~I  danced  with 

litter,  and  ftlr.  Clarke  with  my  sister 

eao't  mention  all  the  company,  it  is 

;     we  danced  country  dances  till 

en  or  twelve  at  night ;    we  danced 

^hta  there  af\er  the  first  night. 

u  e? er  been  at  Abbotsbury  before  ? — 

I  several  times;   and  kuow  several 

be  town. 

ig  did  you  continue  at  Abbotsbury  ? 

le  there  on  the  1st  of  January,  and 

'  on  the  9th. 

ir  mother  stay  with  you  there  all  the 

It  did ;   and  wlien  we  went  away, 

e  went  with  us   to  a  little   village 

d  Porterthamy  about  a  mile  or  a 


[S34 
this  was  on  a 


mile  and  a  half  firom  thence ; 
Tuesday. 

'  Do  yon  remember  one  Andrew  Wake,  an 
exciseman,  at  Abbotsbury  ? — I  do  ;  he  bor- 
rowed a  great  coat  of  me  one  day,  in  order 
to  survey  in  it,  being  a  very  wet  day. 

What  day  was  thatP — I  cannot  take  upon 
me  to  say  that ;  it  was  one  day  while  we  were 
there. 

What  house  did  yon  go  to  at  Portersham  f— 
To  the  best  of  my  knowledge,  it  was  the 
Chequer,  au  alehouse ;  it  is  on  the  \et\  hand 
going  down  the  village ;  we  lay  there,  Mr. 
Clarke  lay  with  me,  and  we  all  went  the  next 
day  to  Uidgway,  which  was  Wednesday  the 
10th,  which  is  about  five  or  six  miles  from  Ab- 
botsbury ;  we  breakfasted  there  the  next  morn- 
ing, and,  to  the  best  of  my  knowledge,  went 
from  thence  about  eight  or  nine  o'clock. 

At  what  bouse  did  you  lie  at  Ridgway  ? — At 
the  house  of  Mr.  Bewley,  thesign  of  the  Ship  ; 
his  son,  and  he,  and  a  maid -servant,  keep  tne 
house. 

Did  any  thing  happen  remarkable  at  Ridg- 
way while  yon  was  there  ?>— There  was  a  dead 
horse,  and  a  man  skinning  him  as  we  came 
by ;  and  1  left  a  piece  of  nankeen,  about  three 
yards  and  a  quarter,  for  my  reckoning  with  my 
landlord.  I  was  afraid  tbat  silver  would  ml 
short ;  so  I  went  to  bis  bedside,  and  told  him  I 
was  afraid  money  would  fall  short  before  I  came 
home,  and  desired  be  would  take  that  tilt  I 
fetched  it.  My  mother,  sister,  and  I  went  from 
Ridgway  to.  Dorchester  on  Thursday  the  lltb, 
which  is  about  three  miles  distance;  we  did 
not  lie  there,  but  went  forward  almost  all 
night ;  for  we  had  received  a  letter  from  my 
sister  Mary,  who  was  at  London,  that  she  was 
extremely  ill,  and  desired  us  to  come  home  as 
soon  as  possible ;  there  was  a  very  great  water 
out  at  Dorcliester,  and  the  miller's  man  carried 
my  sister  Lucy  over  it  on  horseback,  behind 
him;  for  which  I  told  him  I'd  give  him  a 
pint  of  beer;  and  I  took  my  mother,  and  car- 
ried her  on  my  back  through  the  water ;  there 
is  a  mill  just  by  the  place ;  my  sister  stayed 
till  we  came  to  her,  then  we  aU  three  walked 
on  together. 

Where  did  you  stop? — ^The  next  day  we 
got  to  a  place  called  Tawney-Down,  and  we 
went  into  a  little  ale-house  on  the  road,  and 
had  some  bread  and  cheese,  and  a  pint  of  beer : 
We  lay  at  a  place  called  Chettle  that  night, 
which  was  the  Friday. 

Uuw  many  miles  is  Chettle  from  Dorches- 
ter f — I  cannot  tell,  because  we  went  through 
HIaiidford. 

What  time  did  yon  get  to  Chettle  on  the  Fri- 
day f — We  got  there  in  the  evening;  my  mother 
was  very  weary,  and  I  asked  a  shepherd  on 
the  Downs  for  an  ale-house,  and  heisaid  there 
was  never  a  one  to  Chettle :  on  the  Saturday 
we  went  from  thence  to  Martin ;  there  I  asked 
at  an  ale-house  for  lodging,  and  oould  get 
none ;  so  a  gentleman  let  us  lie  in  his  bam. 

Do  you  know  his  name  ? — 1  do  not  recol- 
lect it. 


335] 


n  GEORGE  II. 


Trial  of  EKzabeik  Camumg, 


[896 


Wai  it  fitfiDcr  Tbaacs  ? — It  wu  ;  we  lay 
there ;  my  mother  and  sister  were  with  me, 
we  never  were  a  mionte  frum  each  other  all  the 
time  to  LoodoD. 

Where  did  yoa  go  wheo  too  went  from 
Martin?— We  went  from  thenoe  to  Coombe 
on  the  Sunday  ni^ht,  to  the  house  of  widow 
Greville ;  her  son  Thomas  Grer ille  is  dead 
of  thesroali-pox. 

When  did  you  icare  Coombe  ?— We  left  that 
on  the  3Iooday,  hot  1  caoH  recollect  where  we 
Uy. 

Where  did  you  lie  on  the  15lh  ? — I  cannot 
tell. — I  went  to  Basingstoke  on  the  Tuesday, 
1  think. 

Recollect  again. — 1  cannot  recollect  it. 

How  many  places  did  you  lie  at,  or  how 
many  days  were  you  in  going  from  Coombe  to 
Bwhinf;8iuke  ? — I  cannot  tell. 

What  day  of  the  week  did  you  get  to  Ba- 
flingstoke? — 1  cannot  tell :  we  travelled  about 
ten  miles  a  day. 

Where  did  you  put  up  at  Basingstoke  ?— 
At  the  Hpread- Eagle ;  a  widow  woman  keeps 
it ;  she  wrote  a  letter  for  my  sister  Lucy  to 
Mr.  Clarke ;  Mr.  Clarke  and  we  had  parted  a 
long  time,  and  he  desired  Lacy  to  send  a  letter 
to  Tiim. 

Where  did  Clarke  and  you  part  ?— We  parted 
•t  Ridgway. 

What  b  the  landlady's  name  who  wrote 
this  letter  .^— I  don't  know  her  name  ;  the 
letter  was  sent  to  the  post-office  at,  Dorchester, 
directed  to  Mr.  William  Clarke  at  Abbotsbury  ; 
we  did  not  lie  at  the  Spread- Eagle,  we  could 
not  have  lodging  there  ;  but  she  directed  us 
about  a  mile  or  mile  aud  half  farther  on  our 
way  to  London. 

What  is  the  name  uf  the  place  you  lay  at  ? — 
It  is  called  Old  Basing,  it  is  a  little  out  of  the 
way. 

Where  did  you  go  the  next  day  ? — We  went, 
I  believe,  to  Bagshot,  and  lay  at  the  Greyhound 
there  ;  and  on  the  Saturday  wo  went  to  Brent- 
tbrd,  to  the  house  of  Mrs.  Bduards;  I  lay 
there  one  night,  and  on  Sunday  1  went  to  Lon- 
don to  look  atler  sister  Mary  ;  I  stayed  there 
one  night,  aud  the  next  day,  which  was  on  a 
Monday,  I  brought  my  sister  Mary  to  Lucy 
and  my  mother  at  Brenti'ord ;  we  all  stayed 
there  till  Tuesday. 

What  sign  does  Mrs.  Edwards  keep  ?— She 
keeps  no  sign,  but  there  is  the  sign  of  the 
Drum  just  by  it;  there  we  were  all  four  toge- 
ther ;  and  to  the  best  of  my  knowledge,  we  all 
lef\  Brentford  on  the  Tuesday,  and  went  to  the 
Seven  Sisters  by  Tottenham,  to  the  sign  of  the 
Two  Brewers. 

Is  not  there  another  name  to  that  place  ? — 
I  do  not  know  ;  there  is  a  green  ;  they  call  it 
by  some  name,  but  I  don't  know  it. 

What  day  of  the  week  was  this? — It  was  on 
a  Tuesday. 

Where  did  you  go  the  next  day  ? — ^Then  we 
went  to  Mrs.  Wells's  house ;  this  was  on  a 
Wednesday. 
Mowcamt  you  to  go  there?— I  wu  recom- 


•  mended  to  her  hoose  for  lodging ;  they  aid 
'  she  was  a  very  civil  woman :  I  never  aaw  her 
,  in  my  life  before  this  time,  if  I  was  to  be  racked 
.  to  death.    There  is  an  acqaaintanoe  of  mine 
that  owed  me  seven  pounds  fifteen  shillings  in 
London,  and  I  went  there  to  suy  till  I  coaM 
receive  il,  to  Mrs.  Wclb's  house :  we  went  to  ■ 
woman's  house  mho  sells  peaae-soop  at  £d« 
.  monton ;  we  would  have  lodged  there ;    bat 
my  mother  wanted  to  wash,  and  the  woman 
said  that  was  not  customary,  so  she  reooB»> 
I  mended  us  farther,  to  a  place' called  Chcsbnnt; 
upon  that  we  went  to  Mrs.  Wells's  house,  being 
,  recommended  there  by  )Irs.  Long's  daughter; 
.  I  left  my  mother  and  two  sisters  at  Mrs.  Wells's 
I  house,  and  went    to  Loudon    to  receive  my 
I  money  about  two  or  three  days  alt?r  we  pit 
'  there ;  I  lay  in  London  one  night,  aud  cams 
back  the  next  day,  and  we  all  remained  there 
till  ue  were  taken  up. 

Describe  particularly  the  rooms  you  lay  ia 
at  3Irs.  Wells's  house. — The  room  my  mother 
and  two  sisters  lay  in,  is  as  you  go  by  the 
kitchen  door  up  a  pair  of  stairs,  and  turn  abort 
on  the  right  hand  ;  it  is  a  large  room,  with  one 
bed  in  il,  in  which  they  all  three  lay ;  it  is  the 
handsomest  room  they  have  in  the  boose. 

What  room  was  under  that  ? — ^There  is  a 
parlour  under  it ;  I  lay  in  a  little  room  filing 
the  stair-head. 

Where  did  mother  Wells  lie  ?-- She  lay  ia 
a  room  on  the  letl  hand  of  mine,  as  you  go  op 
stairs. 

Who  lay  in  that  room  with  her?— There 
was  a  daughter  of  hers,  and  Virtue  Hall. 

Do  you  remember  any  body  else  that  lay  la 
the  house?— There  was  Fortune  Natus  aad 
his  wife  lay  in  a  place  where  there  ia  a  viit 
deal  of  hay. 

What  do  you  call  that  room? — It  was  a 
shuffle -board  room,  as  they  say  ;  you  go  op 
two  or  three  steps  to  it  out  of  the  kitcbeo; 
they  had  a  bed  made  of  hay  on  the  right  band 
going  up. 

At  the  lime  you  were  at  Enfield- Wai«h,  how 
did  you  supply  yourselves  with  provision.'—! 
bought  my  own  victuals  myself;  there  it  ft 
little  chandler's-shop  over  the  way  ;  the  man'f 
name  is  Larney ;  be  is  a  bricklayer ;  tbey  itl 
butter,  tea  and  coffee,  soap  and  candles ;  I  went 
there  several  times  for  tea. 

Where  did  you  buy  your  butchers  meatf«- 
It  was  in  herring  time  ;  we  lived  on  fiifa,  ibA 
did  not  buy  meat  there ;  there  waa  an  old  mftB 
came  to  the  door,  Mrs.  Wells  bought  fish  ^ 
him,  and  so  did  1. 

Did  you  see  this  young  woman  at  the  btf 
when  you  were  there  ?^No,  I  did  not ;  I  nev*|J 
saw  her  before  we  were  taken  un  in  my  life«  ** 
I  was  to  he  racked  to  death  ;  I'll  stand  witb  ^* 
sword  put  to  my  heart,  if  ever  I  saw  her  vl* 
she  came  in  the  chaise ;  we  came  there  on    * 
Wednesday,  and  at  the  end  of  a  week  anci  ^ 
day  my  mother  was  taken  up. 

Cross-examined  by  Blr.  Morton, 

Mr.  Morton,   At  setting  oat  on  your  om^^* 


387J  . 

Mlios*  yon  aid  yoo  could  not  tell  where  you 
were  at  Cbrutmas. — G.  Squireg.  Not  the  new 
ChrbtonM. 

.  You  laid  voo  were  not  at  London  before. — I 
mean,  not  bei'ore  sU  or  seven  weeks  before 
Miebaelmaa. 

From  what  place  did  you  set  out  ? — I  went 
Uwn  into  IIaui|)sbire. 

Wheo  did  you  set  out  on  your  journey,  and 
wbcre  is  your  home  ? — We  sat  out  from  New- 
MtBB  to  Homeraetsbire  and  Dorsetshire. 

If  hone  did  you  leave  your  sister  Mary,  when 
yM  act  out  ?— She  was  with  a  particular  ac- 
■asinlsnrf.  with  Mrs.  Squires's  brother- in -law; 
1  IcA  b«r  in  Kent ;  Mfa.  Squires  in  the  Borooo^b 
has  ■  broiber,  and  his  wife  was  very  ill,  and  I 
left  Bj  aisler  Mary  with  her,  in  order  to  do 
what  was  in  her  power  for  her ;  they  sell  goods 
in  iIm  coantry,  and  travel  about  as  we  do. 

Ax  wbat  house,  or  in  what  town  did  you  leave 
bcr?— I  had  not  a  thought  of  being  called  to 
aach  aocstisna  as  these. 


Jbr  Wilful  and  Corrupt  Perjury.  A.  D.  1754.  [338 

Wbcra  did  you  go  when  you  went  from 
Ilindon  ? — I  went  partly  by  Mear. 

What  was  the  next  town  when  you  left 
Mear? — Really,  Sir,  L  hope  you  will  excuse 
me,  be  pleased  to  excuse  me ;  I  cannot  tell  in- 
deeil ;  please  to  excuse  me. 

You  gave  so  clear  an  evidence  on  that  part  of 
vour  return,  that  if  you  do  not  go  on,  ii  must 
be  left  to  my  lord  who  tries  you  :  tell  me  where 
you  went  when  you  left  Mear  ?*»Frum  Mear 
we  went  towards  Shatlsbury. 

Did  you  go  to  it  f— I  went  partly  by  it. 

Tell  me  some  town  you  lay  at.—[No  answer.] 

Did  you  lie  at  Lewes  ? — 1  did  ;  I  cannot  tell 
the  house ;  it  was  an  ale  house,  but  I  don*t 
know  the  sign. 

Tell  us  another  town  you  lay  at. — I  know 
Mear  very  well ;  I  lay  there,  but  had  never 
lain  at  that  house  before. 

Where  did  you  use  to  lie  there ?•»-— [No  an- 
swer.] 

Did  you  lie  at  Shaftsbury  ?— I  cannot  tell 
whether  1  did  or  not. 

Where  were  you  going  to  in  the  west  ? — I 
sell  goods. 

What  goods  ? — 1  had  white  waistcoats,  and 
worked  gowns,  and  hollands,  and  such  things ; 
and  where  my  business  led  me,  there  1  went. 

What  quantity  of  goods  mi^ht  you  have 
when  you  went  but  of  Kent? — 1  had  not  dealt 
largely,  I  believe  I  had  then  about  twenty 
pounds  worth  of  goods,  consisting-  in  aprons, 
worked  gowns,  nankeens,  and  such  things. 

How  long  were  you  before  you  came  to 
South -Parrot.^ — I  cannot  tell:  I  never  was 
at  South- Parrot  before  the  29th  of  December; 
I  went  down  with  a  gentleman  once  since. 

Is  Yeovil  farther  from  London  than  South- 
Parrot  ?— No,  Sir. 

Did  you  go  through  that? — No,  I  caraa 
partly  by  it :  but  they  said  they  had  g^t  the 
small- pox  in  the  town,  and  I  bad  never  bad 
it,  so  I  did  not  come  through  it. 

Were  you  at  Crookherue? — No,  I  was  not 
there  at  all. 

Tell  me  a  great  town  aAer  you  leA  Shafls- 
bury  ?— I  went  away  from  ShatUbury  to  Ab- 
boisbury. 

Tell  me  the  name  of  one  town  you  lay  at  in 
Somersetshire  ? — 1  did  not  go  very  far  in  So- 
mersetshire. 

Name  one  town  betwixt  Yeovil  and  South- 
Parrot  that  you  lay  at. — I  don't  know  a  town 
betwixt  them  ;  there  are  several  villages,  but  I 
can't  tell  the  name  of  one. 

Tell  me  the  sign  of  an  inn  where  you  lay  at 
beyond  Shaflsbury,  whether  it  was  a  tbx,  a 
ffoose,  a  t\og,  or  a  pair  of  compasses? — I  don't 
know  the  sign  of  any  place  where  1  lay  at,  be- 
cause it  is  so  long  ago. 

You  remember  the  other  places  very  well  ? 
—That  is  because  1  have  been  there  since. 

Then  you  remember  it  by  the  last  journey 
you  took  ? — Yes,  Sir,  and  by  the  other  too. 

Then  you  can't  remeiitber  either  a  town,  an 
alehouse,  or  a  liign  where  you  lay  at,  after  you 
left  ShatUbury  ?— >N0|  I  cannot. 

Z 


I  il!all  sA  YOU  a  great  many  questions  you 
have  MC  haard  yet :  can  you  give  me  any  an- 
Tf  St  what  nouse,  or  what  town  you  left 
r  Mier  Mary  ? — It  was  in  Kent. 
>  Wen  your  mother  and  sister  with  you  when 
jsii  psftcd  with  her? — We  were  all  three  to- 
gether; 1  ilon't  know  at  what  town,  or  whose 
banae;  wlieo  I  left  my  lodgings,  1  went  into 
Kmt,  and  happened  to  meet  with  them.  1 
went  into  the  wild  of  Kent. 

Did  you  oome  hack  a^in  then  to  Newing- 
tan? — 1  went  from  Kent  mto  Sussex. 
Name  a  town  there. — Lewes,  Battel. 
Did  yoo  go  through  either  of  them  ?^No, 
IMnoi. 

Name  the  first  great  town  that  you  went 
Arangh  in  Kent. — 1  don't  know  which  I  went 
ttroufh  first;  1  went  through  Lewes;  1  made 
tbhoiof  my  wav  into  the  weat. 
•  AAtr  you  left  Lewea,  what  is  the  first  town 
jmcune  to  that  you  did  know? — Really  I  do 
Mknow  ;  it  is  ao  long  ago,  I  can't  tell  you. 

Yen,  without  an  almanack,  have  given  a 
fag  and  aeeming  fair  account  of  a  longjour- 
Kjv  pray  trace  yourself  down  into  Dorset- 
Hie;  I  don't  ask  you  the  first  town  from 
Livca,  but  the  first  town  you  do  remember 

lAwyoo  left  Lewea. [No  answer.] 

It  waa  not  South-Parrot,  was  it  ? — No,  it  is 
Mt  poiaible  I  can  tell  you  ;  1  went  from  thence 
iMs  Hampshire  and  Wiluhire ;  I  went  through 
Uiibury. 

'  Is  that  the  first  town  you  can  remember, 
lAer  you  left  Lewes,  you  came  at!'— No,  1 
•tot  tnrough  several,  but  don't  remember  their 
iuses;  1  must  have  went  through  some:  I 
kiM  yon  will  excuse  me,  I  hope  you  will  not 
Ml  me  any  more. 

Can  you  tell  the  name  of  any  town  yon 
^rcat  through  between  Lewea  and  Salisbury  ? 
"^No,  1  cannot. 

Wbcre  did  you  go  when  you  went  from 
Biliibury  ? — 1  went  to  Ilindon. 
What  county  is  that  iB?-'-Thst  is  in  Wilt- 

VOLXIX. 


839] 


27  GEORGE  IL 


N(»\r  we  sliall  be  a  little  better  acquainted  : 
^ebrin^you  now  to  South-Parrot;  you  say 
^-ou  had  travelled  seven  or  eiurht  weeks  before 
Alicbaelmas,  till  the  99th  of  Decennber  ?— But 
1  did  not  travel  all  that  tinne,  I  came  bonne  to 
my  house  at  Newing;ton  before  that. 

Did  you  return  home  after  y^ou  set  out  for 
Kent,  and  so  into  the  west,  before  you  got  to 
Houth-Parrot  ?— Before  the  time  of  my  coming 
borne,  I  could  not. 

Let  mr  understand  you :  did  you  returiv  back 
to  Ne«»ington  before  Christmas  ? — No,  Sir,  not 
till  after  Chrisimas. 

Then  from  the  time  you  set  out,  seven  or 
eight  weeks  before  Michaelmas,  you  were  tra- 
▼elliuif  about  the  country  with  your  goods  ? — 
Yes,  Sir. 

Can  you  fell  the  exact  time  you  set  out  from 
Newington- Butts? — It  was  harvest-time,  or 
near  it ;  I  can't  tell  whether  it  was  in  July  or 
August. 

Well,  we  are  come  to  South-  Parrot ;  you  say 
you  came  there  the  29th  of  December;  you 
lay  you  met  with  Mr.  Clarke  on  a  Sunday  at 
Abbotsbury,  and  lay  there  that  night,  and  set 
out  with  him  on  the  Monday,  and  went  to  Lit- 
ton, and  your  mother  went  after  you  to  Abbots- 
bury:  now  I'll  ask  you  this  question,  when 
your  mother  went  after  you  there,  did  you 
meet  her  on  the  road  ? — No,  I  did  not. 

Then  did  your  sister  come  with  your  mother 
there  on  the  Monday  morning  ? — No,  she  stay- 
ed iu  the  house  at  Litton. 

Then  your  mother  walked  on  the  Monday 
morning,  December  the  3 1st,  from  Litton  to 
Abbotsbury  by  herself,  and  back  again,  and 
dined  on  two  fowls,  theu  went  with  you  to  Ab- 
botsbury again  ? — Yes,  Sir. 

What  time  did  she  come  back  to  Litton? — 
Betwixt  tno  and  three  o'clock,  and  dined  with 
us,  and  walked  with  us  to  Abbotsbury  that 
night. 

What  time  did  vou  all  set  out  from  Litton  to 
go  to  Abl>otsbury  r — We  set  out  between  three 
and  four  o'clurk  in  the  afternoon. 

Was  it  dark  ? — It  was  quite  dark. 

Where  did  you  buy  the  two  fowls? — I 
bouuht  them  of  one  Mrs.  Turuer;  J  made  a 
cludalion  for  the  feathers,  she  said  she  would 
Lave  the  feathers. 

You  lived  well ;  1  sliould  think  two  fowls  a 
very  remarkable  dinner  for  three  t^ypsies. — 
Fowls  are  bought  there  for  sixpence  apiece, 
it  is  cheaper  than  beef  or  mutton  ;  that  1  have 
very  often. 

1  hope  you  always  buy  them  ? — I  do. 

Were  they  boiled  or  roasted  ? — They  were 
both  boiled  ;  I  was  not  at  home  to  see  them 
boiled,  but  1  eat  part  of  them. 

What  day  uas  it  you  lent  the  exciseman 
your  coat? — I  don't  know  the  day. 

How  many  of  your  goods  might  you  have . 
duposed  of  at  that  time  ? — 1  had  dis|»b8ed  of 
them  all,  except  a  piece  of  check  and  two 
waistcoats. 

Then  vou  had  taken  a  little  money  ?^I  had, 
anil  owed  some,  and  returned  it  to.  London. 


Trial  of  Elizabeth  Cannings  [910 

To  whom  ?— To  an  acqutintnnoe  of  mine^ 
Mr.  Norman ;  he  is  since  dead :  he  was  a  tide* 
n  aiter. 

From  what  place  did  you  return  the  money  T 
—I  cannot  name  the  place. 

Mr.  Davy.  I  beg  leave  to  ask  one  question 
I  forgot;  what  happened  at  Ridgway  when 
you  were  there  ? — G.  Sguirei.  A  young  roan 
that  lives  at  Abbotsbury,  who  sells  turnips,  bad 
two  horses,  and  Mr.  Clarke,  after  he  bad  dined 
with  us,  designed  to  return  home ;  he  knowing 
the  man,  desired  him  to  come  in ;  we  had  gSt 
some  beef- steaks;  this  man  dined  with  os,  and 
Mr.  Clarke  rode  on  one  of  his  horses  home ;  he 
is  here. 


Mr.  Morion.  Tell  me  bis  maae.-^G.SguireL 
I  don't  know  his  name. 

Is  that  the  house  you  left  a  piece  of  nankeca 
at?— Yes,  Sir. 

Do  you  call  nankeen  *  check  ?'— No,  Sir. 

When  you  left  this  piece  of  nankeen  io  pawn, 
because  you  were  afraid  you  should  want  mo- 
ney, pray  how  much  money  had  yon  thenP— 
1  bad  borrowed  some  of  Mr.  Ciance,  and  hid 
some  of  luy  own. 

Tell  us  this  one  thing,  that  as  Mr.  Cfarke 
was  60  much  your  friend,  and  your  sister's 
friend,  why  did  he  not  pay  your  reckoning, 
and  save  your  nankeen,  that  you  might  man 
your  money  of  it? — He  offered  it,  but  I  wasss 
kind  I  would  not  let  him. 

What  money  did  you  borrow  of  Clarke  P— I 
borrowed  68,  of  him. 

Have  you  had  your  nankeen  since  f— No, 
he  has  got  it  in  custody  since. 

What  was  your  reckoning? — It  was  about 
3f.  6d. 

What  is  nankeen  worth  a  yard  ? — It  is  worth, 
or  I  generally  sell  it  for,  2s.  a  yard. 

Where  did  vou  receiye  the  news  of  yoof 
sister  Mary's  illness?— It  was  in  the  conntry, 
I  can't  tell  the  town  where. 

How  did  yon  receive  the  account  of  it  P— It 
came  by  the  post ;  sure  it  must. 

Upon  your  oath,  did  you  leave  any  directMRii 
wiih  her  to  write  to  you  in  the  country  ?— Yes, 
and  [  had  a  letter  she  was  ill ;  I  had  it  first  by 
a  h'tter. 

Can  your  sister  Mary  write?— No,  she  can- 
not. 

^Vas  the  letter  directed  to  you  or  your  mo» 
ther  ?  Was  it  after  you  lef^  Abbotsbury  you  re- 
ceived the  letter? — I  cannot  say  that. 

Then,  if  you  received  it  before  you  came 
there,  or  at  the  place,  it  is  strange  you  should 
stay  dancing  there! — I  will  not  swear  1  re- 
ceived it  before  we  came  there,  or  not. 

You  say,  at  Dorchester  the  miller  carried 
your  sister  over  the  water  on  horseback,  how 
did  you  and  your  mother  get  over  ? — 1  asked 
him  to  carry  my  mother  o\er ;  he  said  hecooM 
not  stay. 

Did  he  come  back  again  by  you,  or  go  on  P 
— No,  be  went  another  way. 

How  far,  at\cr  you  set  out  from  Ridgwnv, 
whera-  the  dead  horse  was,  might  you  wwk 


fir  WUfid  and  Corrupt  Perjury. 


341] 

with  that  dd  wmnan,  that  day  and  night  after 

Sa  had  ne«i?ed  an  account  of  your  sister 
ary'i   ilbienP — She  got  no   farther  than 
Cheitle. 

How  ftr  is  Ridjpraj  from  Dorchester  ? — It 
ia  about  three  or  £>ur  miles. 

How  far  b  il  from  Chettle  to  Blandford  ?— 
1  can't  tell  how  many  miles. 

What  did  you  lie  upon  in  that  bam  you  men- 
tiMMd? — ^We  all  three  lay  upon  straw;  we 
dn*ft  carry  sheets  or  blankets  with  us ;  we  all 
ntnp  in  our  clothes. 

WbereabouU  does  Chettle  lie?— It  is  on  the 
kA  hand,  and  Blartin  on  the  right. 

Which  were  you  at  first?— At  Chettle,  and 
then  to  Blartin,  and  from  thence  to  Coombe. 

Is  not  Blartin  in  the  direct  road  from  Chettle 
to  London? — No,  it  is  not;  it  is  the  bottom 
wav  ;  we  came  there  because  it  was  night. 

(low  long  did  you  stay  at  that  bouse  where 
Ihckiler  vis  wrote? — About  au  hour  aud  half; 
wc  came  there  about  three  o'clock,  to  the  best 
of  ay  knowledge. 

YfMtedid  you  go  to  find  your  sister  Mary  ? 
—To  a  relation's  of  mine,  who  belongs  to  the 
cnrtswi,  named  Samuel  Squires ;  he  lives  down 
!■  White  Hart-yard. 

Did  the  ask  you  whether  you  had  received 
akticr  from  her  or  not  ?— I  told  her  I  had. 

Did  you  tell  her  where  you  received  it? — 
Ko. 

Which  way  did  you  go  from  Brentford  to 
Tottcoham-H  igh-Cro$8  ? — I  went  through  the 
dlT,  along  by  Covent- Garden. 
Did  yoa  go  to  your  house  at  Newioirton  ? — 


A,  D.  1754. 


[M2 


No 


Nor  your  sifter  nor  mother  ? — No. 
On  which  side  the  park-wall  diil  you  come 
hm  Kensington? — Through  Koightsbridge, 
isl  a:l  slooir  the  great  road. 

D»  you  know  this  town  of  London  ? — I  can 
ill  ay  way  in  any  part  of  the  city,  but  I  am 
Miequainteil  with  the  streets  names. 

fM  ynu  go  through  the  city  ?— I  went  clear 
fK»f  through  the  city. 

Which  way  did  you  go  out  of  town  to  Tot- 
labam  ?— By  Shnreditch. 

Bad  you,  or  bad  you  not,  a  lodging  at  New- 
aiflOB  at  that  time?— Yes,  I  had;  and  my 
kMshald  goo<ls  were  there  at  the  time. 

Then  how  came  y«»u  to  go  through  London, 
•ad  not  to  your  lodgings  ? — Beciiuse  1  owed  a 
sum  of  money,  and  was  afraid  of  beins:  arrest - 
ad,  and  wanterl  to  see  Mr.  Squires,  %%  ho  lived 
il  llw  neighbourhood,  to  make  it  up  fur  me. 

What  day  of  the  week  did  you  pass  through 
London ?-*i  left  Mrs.  Edwards's  house  of  a 
Wcdoesday,  and  the  same  day  1  came  through 


Where  did  you  meet  the  person  that  recom- 
mended yon  to  this  house  of  Wells's  ? — Before 
1  cane  to  Bofield ;  the  woman's  name  is  Long. 

How  many  beds  are  there  in  the  room  at 
Wdla'a  where  your  mother  lay  ? — There  is  but 
CM  bed. 

Ifynacftr  did  go  thiajonmey,  be  positive 
with  yoviaeify  whether  it  was  in  the  year  1758. 


—Yes,  Sir;  1  am  sure  it  was  then,  and  not  at 
any  other  time. 

Did  your  mother  and  sister  help  you  in  your 
trading  ? — My  mother  buys  old  clothes  and 
silver  lace. 

Who  bought  these  goods  of  yours?— -I  did 
myself. 

Did  your  mother  and  sister  know  of  your 
trading  ?— They  did. 

Did  thev  know  what  quantity  of  goods  you 
had  ? — I  don't  know  whether  tfiey  did  or  not. 

Air.  JDavy.  We  will  not  call  Lucy  the  sister; 
she  is  rather  more  stupid  than  her  brother,  and 
has  not  been  on  that  road  since  their  coming  to 
£nfield-Wash  ;  and  so  can  give  but  a  very  im- 
perfect account  either  of  times  or  places.  But 
we  will  call  Mr.  Willis,  who  went  with  George 
Squires  about  the  country  since  the  commence- 
ment of  this  prosecution,  in  order  to  ascertain 
the  particular  places  where  Mary  Squires  and 
her  family  have  travelled  through :  and  Mr. 
Willis  will  assign  the  reason  of  this  man's  re- 
membering the  times  and  places  of  their  return 
from  the  west  with  such  exactness,  when  be 
can  recollect  so  little  of  the  journey  of  going 
down. 

Robert  Willii  sworn. 

IWlis.  I  set  out  some  time  in  last  June  from 
Dorchester. 

Mr.  Narei,  Whether  this  gentleman  is  called 
to  prove  any  thing  else  than  what  Squires  has 
related  to  liim  ?  and  what  he  has  heard  from 
others  since  the  fact  ?    I  object  to  his  evidence. 

Mr.  Gascoyne,  Mr.  Willis  went  into  the 
country  tviih  George  Squires,  io  order  to  ascer- 
tain the  places,  he  being  a  person  of  reputa- 
tion, at  houses  where  these  three  people  lodged, 
and  has  found  them  to  be  facts. 

Mr.  Morton,  You  have  shewn  there  was  a 
person  with  them  in  court,  (that  is  Lucy)  and 
you  refu>«e  calling  her,  and  now  call  thiM  mau 
to  give  an  evidence  of  hearsay  only,  afUr  a 
person  has  been  examined  an  hour  and  half, 
and  told  you  of  a  person  within  your  lordship's 
power  to  call,  who  he  says  baa  been  with  him 
all  the  journey :  will  your  lordship  sufier  a 
third  person,  that  can  only  tell  what  this  or 
that  man  told  him  U|K>n  his  making  enquirj^  ? 
We  are  willing  to  risk  the  issue  of  this  trial 
sini^ly  upon  tlie  evidence  of  George  and  Lucy, 
exummed  separately. 

Mr.  Baron  Legge.  If  they  don't  call  the  sister, 
you'll  make  what  observations  you  please  u|ion 
it.  That  eviileuce  has  said  upon  his  oath,  that 
his  sister  went  this  whole  journey  %«ith  him  ; 
and  in  order  to  confirm  that  what  he  said  waa 
truth,  they  will  not  call  her,  but  this  attorney. 

Mr.  Just.  CUve,  This  is  but  hearsay  evidence, 
and  that  is  not  evidence ;  but  if  you  go  to  dis- 
credit this  man,  surely  they  may  produce  evi- 
dence to  shew  '.he  conformity  nl  bis  evidenct, 
that  he  was  always  in  one  story. 

Mr.  Nures,  This  must  be  proved  by  a  person 
that  was  present  at  the  fact ;  if  the  case  waa 
otherwise,  1  could  call  a  hundred  witnesses  in 
order  to  confirm  my  own  evidence. 


5-13] 


27  GEORGE  II. 


Trial  iif  Elisabeth  CBnning, 


1344 


Mr.  Baron  Legge.  The  several  people,  that 
lived  at  the  houses  where  he  says  he  called,  are 
the  evidences  t)  call  to  prove  that. 

Mr.  Morton.  Here  is  a  man  goes  and  tells 
liis  case  to  his  attorney,  and  be  comes  here  as 
a  witness.        (Refused.) 

George  and  Lucy  Squires  were  again  placed 
by  their  mother  in  the  court. 

John  Fry  sworn. 

Fry,  I  live  at  a  place  called  Litton,  in 
Dorsetshire;  I  am  a  tiler  and  plaisterer;  I 
came  to  town  on  Wednesday  last. 

Mr.  Wilfes,  Do  you  know  the  old  woman 
that  sits  there?  (meaning  Mary  Squires.) — I 
have  seen  the  old  gypsey  several  times;  1  rer 
member  seeing  her  on  the  30th  of  December 
1752,  at  Litton :  it  was  on  a  Saturday,  at  the 
house  of  James  Hawkins ;  I  was  at  work  there 
at  the  same  time.  * 

Pray  how  can  you  remember  the  particular 
time? — Because  it  was  in  the  new  Christmas 
time,  and  the  Monday  following  was  the  New- 
year's  day ;  this  is  the  very  old  woman. 

Look  at  the  man  and  woman  with  her.— 
They  are  the  two  persons  that  were  with  her 
on  that  Saturday  evening. 

Were  you  in  company  with  them  ? — I  was 
not  at  all,  but  1  saw  them  by  the  kitchen  fire. 

How  can  you  be  certain  tbe^e  are  the  peo- 
ple?—! have  known  the  old  woman  thirty 
years ;  she  has  been  in  that  part  many  times ; 
1  have  seen  her  face  often  betore. 

[Cross-examined.] 

Mr.  Nara.  Is  this  BIr.  Hawkins  living?— 
Fry,  He  is,  and  is  now  here. 

Francis  Gladman  sworn. 

Mr.  Gascoyne  Do  you  know  Mary  Sqnires  ? 
'^Gladman.  Yes,  Sir  ;  that  is  the  woman. 
(Point! iip^  to  her.) 

Do  you  know  these  two  people  that  stand  by 
her  ? — 1  do,  ihey  are  her  son  and  dau^fhter ;  I 
keep  a  house  at  Litton,  and  am  a  gardener  ;  1 
remember  seeing;  thesi>  people  there  on  Mon- 
day the  ]st  of  January  1753,  in  the  house  of 
James  Hawkins ;  there  is  no  sign,  it  used  to 
be  the  Three  Horse-shoes;  I  shaved  George 
the  Sunday,  being  the  day  before,  at  my  house. 

Had  you  ever  seen  the  old  woman  before? — 
To  the  best  of  my  knowledge,  I  never  did ; 
but  I  am  positive  sure  to  them. 

What  is  the  reason  you  know  it  to  be  the  1st 
of  January?— The  reason  is,  we  generally 
rin^-in  the  new  year ;  I  went  to  ring  a  |)eai, 
anil  the  people  of  the  parish  gave  us  some  li<]^uor, 
that  is,  some  ale  and  some  cyder,  to  drmk ; 
we  concluded  to  go  to  the  ale-house  with  our 
jug  of  cyder,  that  was  given  us,  to  have  some- 
thing put  into  it ;  we  went  to  Hawkins's  ;  the 
old  woman  sat  there;  I  sat  down  doteJby  her, 
and  askeil  her,  if  she  could  tell  fortunes?  she 
said,  No,  she  was  no  fortune-teller :  1  asked 
ber,^if.8he  could  Ulk  Spanish?  and  said,  I 
thought  I  had-aoen  her  abroad  aomewhera  or 


other ;  she  said,  she  could  not:  I  asked  her,  if 
she  could  talk  Portuguese ?  she  said,  No:  I 
said.  Nor  French  ?  she  said,  No:  Nor  Dutch? 
No:  she  said  she  knew  what  I  said,  but  could 
not  answer  me.  Upon  this  an  old  gentleman 
said.  You  mirst  cant  to  her,  talk  gypaey  to  her, 
and  she'll  answer  you.  Then  I  said.  You  are 
one  of  the  family  of  the  scamps ;  she  said,  Na, 
I  am  no  scamp  ;  and  a^oung  man  in  the  room 
said  her  name  was  Squires. 

[Cross-examined.] 
Mr.  WilliamM,    Did  she  sell  any  thing?— 
Gladman.  She  did  not  appear  to  me  to  sell  any 
thing.    " 

James  Angel  sworn.  | 

Mr.  Davy.  Did  you  ever  see  that  old  wo> 
roan  before  f-^  An  gel.  I  have  seen  her  a  greit 
many  times. 

Did  you  ever  see  her  at  Litton  ? — I  saw  bci 
there  on  the  last  day  of  the  year  1752,  at  Janwi 
Hawkins's  apartment,  a  public  house ;  and  I 
believe  there  was  Miss  Lucy  with  her.  ' 

Did  you  ever  see  the  young  roan  ? — No,  I 
did  not  see  him  there. 

By  what  circumstance  do  you  remember  Ibe 
particular  time?— Because  it  is  a  usual  thing 
for  us  to  ring-in  the  new  year;  we  rang  apeaJ, 
and  in  the  morning  concluded  to  go  to  a  pnUie 
house  to  drink  together ;  there  we  saw  the  oM 
woman  sitting  smoking  her  pipe ;  1  was  there 
twu  hours,  and  then  I  was  called  away  to  go  a 
fox  huuting. 

Di'l  you  ever  see  her  before  that  time?-^No, 
but  I  have  several  times  since,  and  am  well  sa* 
tisfied  it  is  the  same  woman. 

What  is  your  business? — I  am  a  stay- 
maker. 

Cross-examined  by  Mr.  Morion. 

W^hat  time  of  the  last  of  December  did  youieo 
her? — It  was  after  the  evening  prayer  on  a 
Sunday  ;  she  was  not  in  the  kitcheu,  but  in  a 
new  apartment,  which  was  not  made  a  puUio 
house  of  theu,  but  is  now. 

What  time  did  you  ring-in  the  morning?— 
It  was  just  about  day- break. 

How  long  might  you  stay  at  Hawkins's?— I 
believe  near  two  hours ;  she  was  there  all  the 
time,  and  1  left  her  there  when  I  went  away. 

What  time  was  it  you  went  to  go  a-hunting? 
— I  lielieve  betwixt  nine  and  ten  o'clock,  1  aai 
not  rertdin  to  the  very  time. 

How  long  did  you  stay  a  fox-hunting?— 
Till  almost  night;  1  believe  it  might  be  three 
o'clock. 

l>id  you  go  to  Hawkins's  in  the  evening?— 
I  did,  but  then  ihey  were  not  there. 

Do  yo"  know  Clarke  ?  Hid  ynu  see  him 
there  that  evening  ?— I  know  him,  but  1  did  not 
see  him  there. 

Do  you  imagine,  that  betwixt  ten  and  two, 
or  halt  an  hour  after,  the  old  woman  ccrald 
walk  from  Litton  to  Abbotsbury  and  back 
afifain,  and  after  that  walk  again  to  Abbotfr^ 
bury  ?— 1  think  she  might ;  she  muat  ] 
▼ery  good  speed. 


315]  fir  IVilfut  and  Corrupt  Perjury. 

Mr 


U«w  DMBT  milet  are,  they  from  each  other  f 
-Jt  if  three  little  milea  we  call  it. 

Jawati  Hawkins  sworn. 

Hawkim.  I  keep  an  ale-house  at  Litton. 

Mr.  Wilits.  Do  you  know  that  old  woman 
Am?— Ifiiv^nf .  Yei,  ihe  passes  by  the  name 
•f  Mary  Squires;  I  remember  seemj^  her  at 
whsuse  on  the  SOIh  of  December  1753,  being 
Ml  Saturday. 

Ih  you  know  that  yonn^  roan  and  woman  ? 
-Yes,  they  are  Georg^e  ami  Lucy,  her  son  an<l 
^Hfkler ;  they  were  all  three  or  them  at  my 
Amw  at  that  time  tO(|rether ;  it  was  just  at  the 
taraiat  ®f  ^^  •'ate ;  ihey  lay  there  on  the  Sa- 
Mav  and  Sunday  nights,  and  went  away  on 
the  Monday  about  two  in  the  afternoon. 

What  time  did  they  get  to  your  house  on  the 
"•tar^y ?  — About  two  in  the  afternoon; 
QcanEtwent  to  Abb«tsbury  on  the  Monday^ 
tba  iBl  of  January,  and  one  Clarke  came  with 
him. 

When  was  the  old  woman  that  Monday 
Muyf— She  was  at  our  hoiis«; ;  she  eat  a 
<o»j  io  a  little  new  chamber. 

Did  she  not  lea? e  your  house  before  they 
•Iwait  away  ?— 1  don't  remember  she  did  ; 
wjy  were  by  themself  es  >  that  chamber  is  not 
isibe  hoose ;  they  eat  fowls  for  their  dinner. 

Who  were  the  fowls  bought  of  ?— They  were 
Mfhtofone  Dance  Turner,  in  our  parish. 

Were  they  bulled  or  roasted  ? — They  were 
Wed,  I  believe ;  we  don't  eat  roast  meat  in 
the  country  hut  Fery  little. 

What  time  did  they  leare  your  house  P— 
IWy  went  away,  J  beliefe,  about  two  in  the 


Were  George  Squires  and  Clarke  at  dinner 
nh  the^  others  ? — I  am  certain  they  were  ;  in 
Mfspuuon  the  old  woman  went  to  look  for 
Cta|eout  into  the  fields,  somewhere  or  an- 
<A«;  she  did  not  tarry  long. 

Hwhmg?— About  an  honr ;  but  I  went  but 
Mhi  into  the  room  where  they  were. 

IW  yoa  remember  Angel's  being  at  your 
MM  at  the  time?~I  do;  they  had  been  a- 
nsgiDg ;  and  the  minister's  kinsman  went  a 
m  kuting  that  day,  and  gave  the  people  some 
Bsacy. 

flaw  do  you  know  it  was  the  3 1st  of  Decem- 
wP— By  reason  I  made  a  fire  in  that  little 
Clamber  on  the  Monday  morning,  when  the 
psople  were  ringing,  where  no  fire  had  been 
■ade  before. 

Croas>examined  by  Mr.  JNarti, 

Was  Anffel  in  the  new  room  or  the  common 
kitchen  ?— In  both  of  them. 

Did  Mary  Sqoirea  smoke  in  the  kitchen  or 
the  other  room  f—1  believe  she  might  smoke 
iahoth  rooms. 

Where  did  the  smoke  on  Monday  morning  ? 
—I  believe  it  was  in  the  old  house. 

Mr.Dapy.  If  you  design  to  impeach  these 
'■■'  .f  •••"■?«»f  *>«re  is  the  minister  we 
CH  cidl  t»  — ^ ■- — 


A.  D.  1754.  [315 

Morton.     We  have  nothing  to  say 
against  their  characters.  ^ 

William  Clarke*  sworn. 

Clarke,  I  live  at  Abbotsbury,  and  know  the 
old  woman,  Ucy  and  Polly  •  1  remember 
George  coming  to  my  house  at  Alibotobury  the 
day  belore  New  Year's  day,  in  the  forenoon, 
last  December  was  twelve  months  ;  he  and  I 
went  to  Litton  together  on  the  Monday  morn- 
ing ;  I  was  a  sweetheart  of  Lucy's ;  we  got 
there  some  time  in  the  aAemoon,  and  met  with 
Lucy  about  three  or  four  o'clock ;  I  know  it 
was  some  time  before  it  was  dark. 

Mr.  Gatcoifne,  Was  the  old  woman  there?— 
Clarke,  8he  was  not  when  we  came  there 
for  she  had  come  to  make  enquiry  where  George 
was,  because  he  did  not  return  on  the  Sunday 
night;  the  old  woman  same  there  about  half  aa 
hour  after  us,  and  George,  she,  Lucy  and  I 
went  to  Abbotsbury  that  night,  and  'we  danced 
at  Gibbons's  house. 

Do  you  remember  any  thing  of  a  couple  of 
fowls  ?— We  eat  something  there ;  I  took  part 
of  a  fowb 

Was  it  roast  or  boiled  ?— It  was  boiled  fowl,  la 
the  best  of  my  remembrance. 

Then  if  you  stayed  to  dine,  what  time  did 
you  set  out  for  Abbotsbury  P.— We  set  out  late 
after  dark. 

Who  was  your  partner? — Lucy  was  my 
partner.  ^ 

Can  von  tell  who  was  George  Squires's 
partner  r— f  cannot  tell  you  indeed  ;  Melchise- 
dech  Arnold  played  on  the  music,  that  I  am 
sure  of. 

How  many  days  did  they  stay  at  Abbots- 
bury ?— They  stopped  there  from  the  1st  to  the 
9th,  all  three  of  them. 

Did  you  see  them  otlen  in  that  time  ?— I  was 
in  their  company  every  day  tlie  time  they  were 
there,  and  saw  Lucy  some  part  of  her  journey ; 
I  went  as  far  as  Portersham. 

At  whose  hoose  did  you  knlge  at  Porters- 
ham  I*— We  lodged  at  Sias  Frampton's  house, 
that  is  a  mile  from  Abbotsburv  ;  I  saw  her 
three  miles  farther,  and  parted  with  them  at 
Ridgway-Foot ;  1  supped  with  them  there  at 
Francis  Bewley's,  and  then  returned  to  my 
own  house. 

Did  any  body  borrow  money  of  you  at  Ridg- 
way  .^— Yes,  Georvp  borrowed  Ci.  of  me. 

What  had  you  for  supper  there? — We  had 
beef-steaks. 

Upon  what  terms  did  Lucy  and  you  part, 
upon  good  terms? — ^^e  wtre  ufion  civil  terms ; 
I  never  saw  any  thing  by  her  but  civil  terms ; 
she  js  as  honest  a  girl  a*s  any  in  the  world  for 
what  I  know. 

When  she  and  you  parted,  did  you  give  her 
directions  to  write  to  you  ? — I  diif. 

Did  she  give  any  directions  to  you  ? — She 
did. 

*  See  Proceedings  against  him  for  Perjury 
upon  the  Trial  of  Sfiuires  and  Wells,  ante. 
p.  875. 


347] 


S7  GEORGE  IL 


Did  you  gire  directions  only,  or  desire  her  to 
write  to  you  P — 1  desired  her  to  write  to  loe  as 
8000  as  possible ;  atUr  that  I  received  a  letter 
from  Bristol  at  Eshain  in  the  Vale. 

How  long  after  your  parting  with  them  was 
it  you  reoeifed  this  letter  from  Bristol  ?— It  was 
Dothalf  a  j^ear  after  ;  1  had  it  brought  to  Ahf- 
botebury ;  it  was  directed  to  me,  but  who  wrote 
it  I  cannot  tell. 

Cross-examined  by  Mr.  Williami. 

What  countryman  are  you? — I  was  bred 
and  born  at  Abbotsbury. 

How  lonff  have  you  been  acquainted  with 
these  peo|>le  P— Four  years  last  March  ;  the 
first  time  that  ever  I  saw  tl»em  was  at  the  Old 
Ship  at  Oibbons's  ;  tlic  second  time  I  saw  them 
was  the  last  of  December  17 39,  when  George 
came  from  Litton  to  me,  and  1  went  there  back 
with  him. 

What  time  of  the  day  was  it  when  you  came 
to  Litton  ? — Some  time  in  the  afternoon ;  I 
can't  say  to  an  hour  or  two ;  it  might  be  three 
o'clock. 

How  lonfl[  were  you  walking  from  Litton  to 
Abbotsbury  r — We  were  two  hours  walking  it ; 
it  is  three  miles. 

What  time  did  Mary  Squires  come  in  after 
vou  were  at  Litton? — She  might  come  in  in 
half  an  hour,  and  that  might  be  between  three 
and  four  o*clock  ;  we  took  part  of  a  fowl 
there. 

What,  amongst  you  all  ? — Yes,  amongst  us 

Was  it  boiled  or  roasted  ?— To  the  best  of 
my  remembrance,  it  was  boiled. 

Who  paid  the  reckoning  ? — I  don't  know  in- 
dee«l,  1  did  not  pay  a  Airthing. 

Is  it  hut  three  miles  from  Litton  to  Abbots- 
bury ?~«It  is  three  computed  miles,  but  it  is 
tour  post  miles. 

Can  you  walk  as  fast  as  Hary  Squires  ?— I 
can,  and  a  great  <leai  iSuier. 

Could  siie  do  it  in  less  than  four  hours  ? — 
No,  1  di»u*t  think  she  could,  because  she  is  an 
elderly  1% Oman  ;  that  is,  walking  thither  and 
bark  again. 

Wlun  you  purled  at  Ridgway-Foot,  did 
Getirgo  Kquires  ifH  yon  wbt-iher  he  had  money, 
or  no  money  ^ — Hv  uid  not  teil  mc  wlu-ther  he 
bad  or  not. 

U  ho  i^aid  all  the  money  from  the  ittt  to  the 
9lh,  wheff«  you  drank  .'^Iw^M-ge  paid  it,  1  he- 
\\e\e ;  1  douU  know-  but  he  did  ;  whether  he 
paid  it  or  not,  be  had  six  khilliugs  of  nie. 

Did  be  s<fll  any  coods  do  you  know  to  any 
bodv  P — Ye«,  he' sold  an  apron  to  the  landlady 
at  the  Old  t^hip,  and  au<ither  to  the  servant. 

Did  he  ask  \ou  to  lend  him  any  thing.'— 
Yes,  he  did. 

Did  yuu  know  of  his  pletiging  that  piece  of 
goods  at  liidgwsy  tor  the  rockoumg .''-  -I  did 
not  till  afterwards. 

Did  you  oifer  to  pay  half  there?— No,  I  did 
not ;  Geoige  wouid  uoi  let  hm. 

Did  yon  tend  him  this  noMy  hcfort  or 
he  pawned  the  naakeea  7~ll »  m  bdora. 


Trial  ofEUzabM  Cannings  [318 

How  came  he  to  pawn  it?— >1  eaiHMt  tell 
that. 

How  long  were  you  at  Ridgway  ? — I  might 
be  there  two  hours. 

What  time  did  you  set  out  for  Abbotsbury? 
— I  set  out  about  tour  o'clock  in  the  aftemooo, 
and  lodged  at  Portersbam  going  back*. 

Mr.  Dav^.  When  you  came  to  Littoo,  hai 
Lucy  and  Mary  (Squires  sat  down  to  dinner?— 
Clarke.    No,  Sir. 

Did  you  see  the  dish  when  first  aened  up? 
—I  eat  part  of  what  was  meddled  with. 

Had  tney  been  eating  before  you  came  thae? 
— I  don't  know  whether  they  had  eai  any  tUag 
or  not. 

Did  yon  lie  with  George  Squires  at  Ridg- 
way ? — No. 

Do  you  know  any  thing  of  the  drcamstaiet 
of  the  piece  of  nankeen  ? — No,  Sir. 

Do  you  know  any.  thing  about  a  dead  bora? 
— There  was  a  dead  horse  lay  in  the  highway 
at  Ridgway  as  I  went  by. 

John  Gibbons*  aworn. 

Gibbons.  I  keep  the  Old  Shipat  Abbotibary ; 
I  know  Mary  Squires,  and  the  young  HMD  and 
woman ;  they  are  son  and  daughter  to  the  good 
woman. 

Mr.  Wilies.  When  did  you  see  them  at  year 
house  ? —Gibbons.  They  were  at  my  boase  oa 
Monday  the  1st  of  January  1753 ;  *they  cans 
there  in  the  darkish  of  the  evening. 

Had  you  any  merriment  at  your  boose  Ihit 
nipht  ? — Yes,  l$ir,  dancing ;  George  daneei 
with  a  sister  of  mine  named  Mary  GilibonS|  aai 
Lucy  danced  with  William  Cfarke;  the  sM 
woman  was  in  the  house  at  the  time. 

How  long  did  they  stay  at  your  house  ?— 
They  stayed  from  the  1st  to  the  9th,  then  thc| 
j  went  away. 

j  Did  thev  stay  in  yonr  house  all  that  timt? 
—The  o\i  woman  did,  I  saw  her  eieryday 
thert*,  and  so  I  did  George  and  Lucy  ;  I  a^ 
sure  of  this,  upon  my  oath ;  I  knew  Mary 
Squires  almost  three  years  before,  and  knew 
,  her  when  she  came  into  my  house.    » 

When   they  went   away,  where   did   thef  . 
fell   you  they  were   tfoing  ? — They  told   nil 
thev  were  goiuj;  to  Portershdm  ;  Clarke  wcit 
witli  them. 

l>o  }ou  remember  an  exciseman  coming 
to  \  our  house  to  ndic?ate  for  another  that  wsi 
siok?— I  d>\  lii«  name  is  Andrew  Wake;  hit 
ls\  in  the  same  n>um  with  George  Sqnircs^ 
and  ihey  were  %ery  laniiliar  logtther. 

Do  vtni  romeinhtT  the  exciseman  borrow- 
ing Geoige's  ;;reat  ciut?— 1  believe  he  did 
one  night  as  he  was  walking  his  ruumla. 

Was  it  as  he  wa?  walking  hk  rounds,  or 
to  walk  his  rounds? — It  was  to  walk  hii 
rxnittds. 

How  do  von  know  that  ? — I  bcani  bin  tdl 
it. 


•  «M  Procaedittgt  agauMi  bins  for  L  _^_  , 
upon  ilMlVial  ntfSq«M^«Ml  Wdbmtfs^pi,  tri. 


liiNi 


Jiff  Wilful  and  Corrupt  Perjury* 

ross-rzammation  by  Mr.  Morton* 
II  ere  examined  when  Mary  Hi^uires  wat 
at  this  bar  I — 1   was. 
Hill  ooly  ask  you,  whether  yoa  ^re  an 
ikl  of  Keeiuif  them  daticfi^  as  you  have 
l^^p^l    don't  know  thai  it  was  askeil  me. 
[  Was  it  not  man  rial  to  tay,  we  hatJ  mii«ic» 
they  daneeil  tii  our  house  at  that  lime  ? 
im  swear  that  thea? — I  cao^t  say  whe- 
mi|;ht  or  not. 
When  did   you  first  recollect  it  ?— On  the 
|«r  Febroary. 

Then  why  did  you  not  swear  it  then,  and 
Pie  nty  lord  aitd  the  jury  m\  ac^count  of  il  ? 
\  donH  ktiow^  I  wa!$  uoi  ai^keii  il  then. 
Did  you  g-ive  an  accouut  of  the  exci^efnan 
rb^  iri  the  same  room  with  Ciwjrjfei'— No ; 
It  1  then  tohl  the  Court  the  exciseman  wait 
lere  at  my  bouse. 
Was  the  ejtctsemati  here  tben?«--No. 

Andrew  Wake  sworn. 
WaJbff.     1  was  an    exciseman    abotit    nine 
hfl  ago<  and  am  now  in  ihe  foot  truards;   I 
ttrdered  to  Ahl»otsbury  lo  otficmt*^  for  one 
Wr.  H  ard»  who  was  ill,  by  order  of  the  iuper- 
*»  fn»m  Dorchester;    on  t*»e31st  of  De- 
cember 176i»  I  (fot  there,  1  went  to  the  Ship 
ilGibbons's  ;    [He  takes  a  Bo<ik  in  his  hiind, 
&tiil  loak!&  in  it]  ibi^  is  my  writings,  these  are 
VMir  entries,  it  is  the  journal. 

Mr.  Guscoyne.  Look  at  the  o!il  woman  sitting* 

tlierp,  do  you  know  her  ? — Wukt,  I  dO|  it  is 

Hquireg ;  I  &aw  Iter  at  Abbolsbury,  at  iV\h- 

hooae,  at  that  time,  the  31&t  of  He^ 

Do  you  know  that  youngs  man? — ^1  do  ;   he 
ff»r  George  Sijuires ;  he  lay  io  tbo  same 
room  with  me. 
Do  you  know  that  yonngf  woman  by  him?^ — 
iki,  it  18  Lucy  ;   they  both  went  for  son  and 
hter  of  Marv  Squires  \  I  saw  George  tirst 
^;  be  was  sittirij^  by  the  kitchen  fire,  and 
Clarke,  a  simetnaker  of  thai  place,  with 
ihta  was  on  Sunday  nig^ht :    I   am  not 
to  the  first  day  I  taw  IVlary  84| aires, 
1  wai;  oblit^ed  to  be  out  early  in  the 
1^;    but  I  tliink  I  fii-st  saw  herou  the 
ptiay,  and  Lucy  with  her,  by  the  kitchen 

long  did  you  remain  in  that  town  ?— 
the  Oldt  of  December  to  the  14th  of 
y  ;  Gtbbiios^s  house  was  my  house  att 
Mil  time  ;  1  remember  they  went  aVay  two  or 
ihrre  days  before  1  did. 

Can  you  remember  the  day  they  went  away  ? 
*^paii  roy  word  I  do  not. 

Do  you  km»w  this  by  your  memory»  or  by 
^r books? — ^y  my  memory. 

0id  Geor^ Squires  he  in  the  name  room  you 
lii  ertry  oi^ht  t — I  don*t  remember  but  he 
ml  the  mother  and  Lucy  lay  in  a  room 
►here  there  were  two  lieds,  which  we  went 
Ifuutlfh  to  gu  tti  beii ;  it  was  up  one  pair  of 
tttn  'j    I  saw  them  in  bed. 

Do  you  remember  any  dancinpf  there  ?^ — I 
b|  I  WAS  iu  the  room  with  them  oa«ef«aiiig; 


[350 

Geortje  danced  with  a  younij  woman  of  Ab- 
botsbury,  Clarke  danced  there,  and  Lucy 
danced  there. 

What  sort  of  weather  was  it  wbile  you  were 
there? — Hiefe  w«k  a  good  deal  of  unow  :  | 
reu^ember  I  borrowed  a  great  coat  of  George 
8<jiurefl  to  go  my  rounds  jii,  btM^ause  I  had  been 
oui  in  my  own,  and  it  was  wet. 

Who  playetl  the  music?— A  hkeksmith, 
named  Mekbiticilcch  Arnold^  p^ttved  on  a  fiddle; 
he  sold  cyder;  I  surveyed  hist  bn  use;  [  re* 
member  I  had  been  taken  ill  coming  my  roimds, 
and  was  sitting  by  the  fire-side,  and  the  old 
^eatlewoman  prescribed  so  m  ft  hi  ug  to  cure  me, 
she  got  me  something  hot ;  the  next  morning, 
or  I  be  morning  alter,  she  made  me  a  buttered 
toast  Mure  1  went  out. 

Vou  had  a  lK>ok  in  your  hand  ;  is  erery 
day's  guuge  iu  that  ? — l"  believe  they  arc  ;  we 
return  these  books  to  tlie  Exxise-ofiicc  ;  this 
bouk  was  sent  for  out  of  the  country  on  purfH>te 
when  I  was  examined  ;  I  had  letl  them  wiib 
John  Wiird  at  Abboisbury,  when  1  went  from 
thence  to  Dnrcbester  again. 

\\  hat  time  w;is  it  you  he^rd  of  this  aUklr 
aboui  the  trial  of  ibe  old  woman?— ->l  saw  itiaa 
nEws-puper,  that  one  Mary  8c|Utres,  a  gypsey- 
woman,  wa*  tikcn  up  for  a  robbery. 

Did  il  mention  the  time?— I  cannot  remem » 
ber  wficther  it  did  or  not ;  but  f  beliere  I  told 
my  mntbcr,  that  that  could  not  be  the  woman, 
because  I  saw  her  at  Abbot^fhury  when  I  was 
officiating  for  Mr.  Ward ;  I  was  sent  to  Lewes 
in  Sussex,  and  had  an  order  by  my  siupervisor^ 
from  the  commissioners,  to  come  up  and  attend 
my  lord-mayor  ;  but  I  did  not  know  upon 
what  account ;  I  came  up  and  giive  the  same 
evidence  before  his  lordship,  as  1  do  now,  after 
he  had  sent  me  to  Newg-ate  to  see  Alary 
Squires,  whom  I  kuew  very  well  by  mnoy  cir* 
cutnstances,  and  she  knew  roe. 

How  came  you  to  be  out  of  the  excise P-^I 
was  discharg-ed,  and  so  went  into  the  (guards. 

F'or  what  were  you  discharged  ? — For 
stamping. 

How  could  you  see  the  people  in  bed  when 
you  went  through  the  room  ? — Because  there 
were  no  curtains  to  their  berls. 

Cross-examined  by  Mr.  Williami* 

Tell  us  what  year  this  was. — This  is  the 
book  we  had  from  the  office  at  that  time  ;  thej 
are  marked  at  the  excise-ofiice  before  tkey 
come. 

Look  in  it,  ami  shew  me  the  first  entry  ynn 
made  the  rt^— 1 1  was  on  the  first  of  January; 
ilia  my  hand-writing  from  that  to  Lbe  14ih  ef 
January. 

Was  it  in  the  year  1752  or  1753?--Ther«  is 
no  year  to  it,  only  ihe  days  of  the  month. 

What  year  was  this  tst  of  January  io  ? — I 
beHe?e  it  was  the  year  53  ;  the  mark  52  is  done 
by  the  supervisor  on  the  Ist  page,  before  we 
bare  them. 

Had  you  ever  teen  Mary  Sc|uires  before  that 
ttrne?^ — No,  Sir,  oor  giace,  tUI  1  saw  her  in 
Newgate. 


J 


111 


351]  27  GEORGE  II. 

Dill  }^a  dance  there  P — No,  I  did  DOt  at  all. 

Can  yoo  tell  whom  Clarke  danced  with  ? — 
Clarke  danced  with  Lucy,  to  the  best  of  iny 
knowledge. 

Did  Mary  Squires  recollect  you,  or  yon  her 
first,  before  you  to)d  her  upon  what  account 
vou  came. to  see  her? — I  said  nothinjr  at  all  to 
iier,  only  asked  her  if  she  knew  me ;  she  said, 
Yes,  that  I  was  the  youn^  man  belooginf  to 
the  excise- office;  and  said  she  remembered 
me  very  well,  that  I  borrowed  her  sou's  great 
coat. 

Did  she  seem  to  be  under  any  hesitation  at 
that  time  ?— No,  she  seemed  rather  over-joyed ; 
she  knew  me  through  the  grate  as  she  was  in 
the  press-yard. 

Ilad  you  the  same  clothes  on  then,  as  you 
wore  in  Dorsetshire,  when  you  saw  her  there  ? 
«— Yes,  I  had  the  same  coat  on,  a  sort  of  a 
pepper-and-salt  coat ;  I  went  there  before  I 
went  to  my  lord -mayor.  - 

Had  you  sent  her  anv  notice  you  were 
coming  tWe  ?— No,  I  had  not. 

Explain  what  you  mean  by  stamping.— 
That  IS  ne^ect  of  duty,  writing  at  home  in- 
stead of  going  abroad. 

Did  not  vou  say  my  lord- mayor  sent  you  to 
see  her  iu  Newgate  ? — My  lord  asked  me,  if  I 
had  seen  her  ?  1  said,  I  had :  he  asked  me,  if 
1  was  positive  to  the  woman  P  I  said,  I  was : 
he  said.  If  jrou  are  not,  go  again;  so  I  went 
aod  talked  with  her  again. 

Mr.  Daxy.  Were  vou  not  positive,  made  you 
go  again  P — Wake,  I  was  positive  then. 
.    Mr.  Williams*    Did  my  lord-mayor  examine 

rNi  before  he  had  the  excise-books  P—Tfa/ce. 
don't  know  that. 

Francis  Aldhorough  sworn. 

Aldborottgh,  1  am  assistant  to  the  genera] 
examiner  at  the  excise-office ;  these  books  are 
called  the  5th  and  6th  round  for  the  year  1752, 
ending  at  Midsummer  1753 ;  they  are  sent 
firom  the  office  once  in  a  quarter  of  a  year,  by 
order  of  the  board  ;  these  are  for  Abbotsbury 
division  :  they  are  returned  to  the  office  by  the 
supervisor ;  these  contain  an  account  of  what 
Has  done  in  Abbotsbury  from  the  21st  of  De- 
cember 1752,  to  the  15ih  of  March  following, 
1753 ;  there  is  an  order  of  board  for  every 
officer  that  officiates  in  the  place  of  one  that  is 
sick. 

Mr.  Cascoifne,  Look  in  the  book:  do  you 
know  whose  hand-writing  it  is  P 

Aldborough,  I  don't  know  Wake's  hand- 
writing ;  here  is  noted  in  this  book  January  1 
to  13,  Andrew  Wake  officiated  for  the  proper 
officer,  he  being  indisposed  ;  tiie  book  says 
John  Ward  is  the  proper  officer. 

[Cross-  examined.] 

Mr.  Morton.  At  what  time  are  these  books 
returned  to  the  office  ? — Aldborough,  There  is 
no  certain  time  for  that ;  there  is  an  order  for 
tliem  to  be  sent  in  six  weeks  after  they  are  done 
»ith ;  some  may  be  kept  three  months,  some 
more,  8«mc  leas ;  but  w«  look  upon  biin  to  be 


Trial  qf  Elizabeth  Canmng, 

the  more  industrious  officer  that  Modt  I 
in  proper  time:  1  was  informed  these  i 
according  to  express,  and  tUey  were  pi 
possession. 

George  Clements  aworo. 

Clements,  I  live  at  Abbotsbory. 

Mr.  Davy.  Do  you  know  tbmt  okl 
there  P  look  at  her  face. — Clements. 
looked  at  her  face  many  years  ago. 

Do  you  remember  oer  dauffhter  P- 
LucyP  Yes,  Sir,  and  her  brother  too 
my  name-sake. 

When  did  von  see  them  in  your  coi 
I  saw  them  all  tliree  on  the  1st  of  Jan 
went  into  the  public  house  the  Old  Shi 
the  old  woman's  son  and  daughter  dan 
our  Abbotsbury  people ;  it  was  abon 
night. 

Who  was  Lucy's  partner? — ^Willian 

Did  they  stay  at  Abbotsbury  ? — 11 
they  lodged  at  Gibbons's ;  1  drank  w, 
the  first  and  second  mornings,  and  dii 
them  the  Sunday  following ;  1  saw 
the  Monday,  and  on  the  Tuieaday,  tiM  ( 
set  out  from  thence. 

Who  set  out  with  them  P— William 
he  and  Lucy  went  together. 

I  hope  they  are  married  by  thistUB 
Lord  knowf,  1  don't  know  that. 

Cross-examined  by  Mr.  Nares* 

How  often  have  you  seen  this  old  • 
ance  of  yours,  Mary  Squires  P — About  f 
sixteen  times.in  that  place,  but  justly  J 
tell. 

How  often  have  you  seen  George  N 
not  tell ;  I  have  seen  him  more  than  « 

Twice? — More. 

Three  times^ — Three  times. 

Four  times  ?— I  cannot  tell. 

Then  you  will  not  say  you  have  • 
more  than  three  times':* — It  may  be 
will  not  say. 

When  George  was  not  with  the  old 
who  came  with  her? — Her  daughten 
and  Lucy. 

Uow  often  have  you  seen  Polly  and 
—I  cannot  tell. 

Have  you  seen  them  oftener  than  y 
George  ? — I  cannot  tell. 

How  long  is  it  since  you  saw  the  old 
at  Abbot&bury,  before  this  time  yon  an 
ing  of  .^ — 1  believe  it  is  four  years  sine 

Was  George  with  her  that  time 
Sir. 

Mclchisedcch  Arnold  sworn. 

Arnold.  I  am  a  blacksmith,  and  livi 
botslmry  ;  I  know  the  old  woman  p 
well,  and  the  girl  on  the  left  hand,  and  I 
behind  her  ;  they  are  her  son  and  dai 
the  last  time  I  saw  them  all  three, 
January  last  was  twelve- month ;  I  at 
on  an  evening  at  the  Old  Ship  at  Abbel 

Mr.  Willes.    Do  you  mean   Old' I 
New  P— ilrnWc/.  lueantUaj 
4 


SSSf]  JbrWUfidand  Cwrpft  Perjury. 

I  rfnmahci  U  was  on  the  Ittof  Janu- 

at  night ;    the  yoong  man  and  young 

nan  danoed,  and  I  played  on  the  violin. 

I>o  yoo  know  who  was  Lucy's  partner  ?— 

Her  partner  was  William  Clarke,  and  George 

S^mres's   partner  was  Mary  Gibbons;,  they 

^'^  give  orer  dancing  at  eleven  or  twelve  at 


jDid  yon  see  them  afterwards  ? — I  be  not 

C'live  I  saw  them  the  next  day,  but  I  saw 
n  several  times  that  week  there;  1  saw 
ten  on  Ibe  Saturday  night  in  particular,  that 
week,  they  were  danciog  again,  and  the  old 
VMBBU  sat  in  the  dancing- room  ;  she  was  in 
iM  Utchen  on  the  Monday  night,  sitting  by 
iM  fire-aide;  I  also  saw  them  the  next  Mon- 
^t  ^eing  the  8th ;  they  were  then  in  Gib- 
ose  ;  I  heard  they  went  away  the 
*J>  hetng  the  next  day. 

Ckoss-examined  by  Mr.  Williami. 

any  knowledge  of  them  before  this 


kn,  km 


t  vaalilk  of? — I  don't  remember  any  per< 
ntiriedge  I  had  of  them ;    bnt  I  have 
mj  they  were  there  three  years  be- 
I  don't  remember  I  ever  saw  them 


What  bosiness  do  they  follow?— I  don't 
kaow  thai,  for  I  never  dealt  with  them. 

Where  did  you  see  fhero  these  times  yon 
■rntion  ?— They  were  at  the  Ship,  and  I  don't 
Imw  that  1  saw  them  at  any  other  house. 


Ford. 


John  Ford  sworn. 
1  live  at  Abbotsbory,  I  am  a  car- 


Hr.  Dttty.  Did  you  ever  see  that  old  wo- 
■n before?  (Pointing  to  Mary  Squires.)— 
ftrrf.  I  have  seen  her  many  times  before  at 
^•tsburv ;  I  saw  her  a  matter  of  four  years 
^and  1  saw  her  on  the  1st  of  Janoarv,  a 

. Bonth  affo  last  January,  being  of  a  Mon- 

'%;  I  shook  hands  with  her,  drank  with  her 
~^i  and  kissed  her  daughter;  the  daughter, 
Md  she  came  all  together  to  the  excise- 
I in  our  town  (there  they  lodged);  John 
IS  keeps  the  house ;  he  is  a  nephew  of 
Zf  I  drank  with  George,  or  else  1  am  not 
tnow. 

Di8  yon  see  them  often  ? — I  saw  tbem  ar 
'"Usaa's  house  from  the  1st  to  the  9th  every 
J ;  they  bought  the  bread  they  eat  of  me ;  I 
[mi  ss sore  1  saw  them  there,  as  I  am  that  I 
I^Mi  ben  this  minute. 

Who  bought  the  bread  ?-p-Mary  Squires  did, 
\  IT  her  son,  or  daughter. 

How  cania  you,  that  are  a  carpenter,  to  sell 
raad  f— I  keep  a  shop,  and  sell  bread  and  se- 
|iml  other  things. 

HnfiB  YOU  any  particular  reason  for  remem- 
riog  toe  day  ? — I  have,  it  being  the  1st  of 
■oary  ;  and  Mr.  Bond,  a  scbool-master  in 
r  Iowa,  givea  his  scholars  a  holiday  at  New- 
r'a  tine ;  be  was  there  on  the  Sunday  even- 
id  ffava  them  liberty ;  I  was  with  him, 
\  Mr.  WaOacOi  nod  George  Squirts. 
VOL.  XUL 


A.  D.  1754.  [S51 

Cross-examined  by  Mr.  Mort<m. 


Where  did  they  come  from  then?— They 
came  from  a  place  called  Litton. 

How  early  on  the  Monday  did  you  see  them 
there? — It  was  some  time  about'one,  two,  or 
three  o'clock ;  I  am^sure  it  was  some  time  iu 
the  afternoon ;  I  know  it  was  not  night,  be- 
cause I  was  looking  oyer  the  hatd),  and  saw 
George  coming  down  the  street,  and  spoke  to 
him. 

flow  far  might  you  see  George,  before  be 
came  to  speak  to  you  ? — I  saw  him,  perhaps, 
fifty  yards;  Icoufdseea  hundred,,and  I  be- 
lieve I  could  see  a  thousand  yards. 

What  hour  do  you  take  it  to  be  ?— I  am  sure 
it  was  not  come  to  three  o'clock;  upon  my  lite 
1  kissed  Lucy  before  three  o'clock. 

You  have  given  a  very  particular  reason  for 
knowing  it  to  be  the  Ist  of  January,  that  is,' 
that  Mr.  Bond  had  given  his  scholars  a  play- 
day  ;  then  does  he  only  ^ive  them  a  play-day 
on  the  1st  of  January  ?<r-m,  not  in  particular. 

Does  not  he  let  them  break  up  at  Christmas? 
—No,  he  does  not  let  them  break  up  all  the 
Christmas ;  they  had  several  days  at  this  time, 
that  is  the  reason  I  know  the  day. 

Mr.  Daty.  You  say  the  first  time  yon  saw 
them  waa  on  Monday  the  1st  of  January ;  pray 
what  time  of  the  day  was  it  ? — Ford,  I  went  to 
the  ale-house  between  one  and  two  o'clock  for 
a  mug  of  beer. 

Mr.  Davy.  How  many  pots  of  beer  have 
you  drunk  to-day  ?  Do  you  take  unon  you  to 
say  you  saw  them  on  the  Monday  about  two  or 
three  in  the  afternoon  ? — Ford,  I  did. 

Mr.  Davy,  You  are  drunk  now,  and  ought 
to  be  aahamed  of  yourself. 

Daniel  Wallace  sworn. 

Wallace.  I  live  at  Abbotiibnry,  and  am  a 
mercer :  J  have  seen  these  three  people  before, 
and  remember  them  all  very  well :  I  saw  them 
there  the  7tli  of  January,  which  was  on  a  Sun- 
day. 

Mr.  Wille$.  Had  yoo  seen  the  son  and 
daughter  before  f ^Wallace,  I  had  several 
times  before. 

When  did  you  see  the  son  and  daughter 
first ?T-It  was  three  or  four  years  before;  I 
saw  tbem  that  time  almost  every  day. 

Had  yon  seen  either  of  them  that  week,  be- 
fore Sunday  the  7tb,  at  Abbotsburv  ?— 1  saw 
George  almost  every  dajr ;  he  bought  sugar  oC 
me ;  and  I  saw  Lucy  twice  that  week,  but  did 
not  see  the  mother  till  the  7th,  and  did  not  see 
them  after  that  day. 

Had  you  ever  seen  the  mother  before,  so  as 
to  be  certain  of  knowing  her  ?— I  had,  and  that 
is  the  real  woman. 

Cross-examined  by  Mr.  Williamt, 

When  did  you  first  see  them  that  week  ?— 
I  saw  George  the  day  he  came  to  town ;  I  be- 
lieve be  came  into  town  the  Sunday  before. 

What  day  of  the  month  was  it  when  you  first 
SA 


iss] 


27G£0k6k  U. 


Ti^  o/"^ixli6ah  CakiiSigt 


&m 


tavr  Geofge?— I  saw  hitn  to  the  find  day  be 
came  into  town,  about  six  in  tbe  eYeniug. 

Did  you  see  him  on  the  Monday  the  Ist  of 
January  P — I  saw  none  of  them  on  the  Mon- 
day: 1  beliere  I  saw  Gebris^e  on  Toesday, 
Wetlnesday,  Thurtday,  and  Friday;  I  bate 
seen  "the  old  woman  several  years  ago,  and 
have  conversed  with  her  a  ffreat  many  times. 

What  did  they  come  there  for?— That  I 
don't  know ;  they  have  at  different  times  sold 
thinffs. 

Mr.  'Recorder,  What  do  you  know  the  par- 
ticnlar  day  by,  on  which  you  saw  the  old  wo- 
man? 

Wallace.  I  had  boaght  a  new  iack,  and  had 
a  shoulder  of  mutton  roasted  for  dinner  on  the 
Sunday ;  and  the  old  woman  was  peeling  po- 
tatoes, and  asked  me  to  dine  with  her ;  and  I 
•aid,  1  had  something  particular  to  dine  on. 
Hugh  Bond  sworn. 

Bond.  I  am  a  school- master  at  Abbots- 
bury  ;  I  saw  this  old  woman  there  on  the  8th 
and  9tb  of  January  1753,  and  George  and  Lucy 
along  with  her;  this  was  on  a  Monday  and 
Tuesday,  at  the  sign  of  the  Old  Ship :  1  had 
been  down  in  Devonshire,  and  came  home 
about  six  or  seven  at  night :  I  lodged  at  the 
Old  Ship,  and  had  never  seen  the  old  woman 
before ;  they  went  away  on  the  mommg  of  the 
9th  about  nme  o'clock  ;  this  old  woman  is  the 
very  same  person ;  whoever  sees  her  once,  can 
never  mistake  her  again :  I  saw  George  again 
the  same  night;  then' Clarke  and  he  came  mck 
igain  from  Portersham. 

Mr.  Gatcoyne.  Had  yon  any  conversation 
with  her  P 

Bond,  No;  but  I  had  with  George,  and 
one  Mr.  Wake,  an  exciseman,  that  officiated 
in  the  room  of  Mr.  Ward,  who  was  then  sick; 
for  when  I  came  home,  my  landlady  begsred  1 
would  not  be  offended  at  her  putting  8omd)ody 
in  my  bed ;  that  was  this  exciseman ;  there  are 
two  beds  in  the  room,  and  in  the  other  George 
Squires  lay. 

When  did  you  go  down  into  Devonshire? — 
I  went  on  the  Slst  of  December,  and  came 
back  on  Monday  the  8th  of  January. 

As  you  are  a  school- master,  yon  must  know 
the  time  of  your  going  out? — My  wife  was  in 
Devonshire ;  I  went  to  see  her ;  she  was  sick, 
and  is  since  dead. 

Cross-examined  by  Mr.  Morion, 
What  time  did  you  see  this  old  woman  on 
the  8th  ? — It  was  after  candles  were  lighted ; 
after  I  had  atiifled  myself,  I  came  and  sat  down 
by  the  fire,  with  George  Squires  and  Mr. 
Wake ;  I  bad  never  seen  Geoive  before ;  I 
asked  my  lanalady,  who  he  was  r  she  said,  his 
name  was  Squires,  and  that  his  mother  and 
sister  were  in  another  room;  after  which  the 
old  woman  eame  out  to  call  her  son  to  go  to 
bed.  .  ** 

What  time  did  they  go  awiy'the  next  daj^  ? 
—I  don't  know  what  ume;  but  when  the  girl 

Snfe.lpcall  me  from  the  school  to  breakfUft, 
ey  it^xz  then  In  Um  kitchen. 


Bow  far  is  ^ort^rsfiam  from  AbboUVbiy  ?^ 
it  is'about  a  ibile  distijice. 

Are  you  sure  you  tBm.  Geoifve,^fter:ti> 
canoe  back  again  from Pomrsh'iimr — I  anti :  h« 
came  ba^k  ligain  in  the  evenfatg,  and  drank  i 
mug  of  beer  at  my  door,  ma  8Ch0ot-dl(fo| 
with 'William  Clarke,  in  the  street. 

What  might  it  be  o'clock?— It  might be'five 
o'clock.;  I  saw  no  more  of  him ;  George  saki 
he  would  not  stay  any  longer,  for  he  most  go  to 
t^ortersham ;  I  did  not  go  out,  but  went  to  bed 
afterwards. 

John  Bailey  sworn. 

Bailty,  I  live  at  Abbotsbury,  and  am  mcav- 
penter. 

Mr.  Dary.  Look  at  that  old  woman ;  do  yen 
know  her.'— Bai/i^y.  I  do;  the  man  and  wt- 
man  behind  her  are  George  and  Lucy  :  I  aaW 
them  at  Abbotsbury  on  tbe  1st  of  Jannary 
175S,  at  the  Old  Ship,  the  ezciseoffice  ;  and  I 
saw  them  all  three  there  the  Monday  and  Toes- 
day,  which  was  a  week  after.  My  yard  joint 
to  the  Old  Ship ;  I  saw  them  most  days  of  that 
time ;  I  shaved  George  twice,  the  time  be  wta 
there,  on  the  Wednesilay  and  Monday  afker; 
I  practise  the  trade  of  a  barber  as  well  as  m 
carpenter. 

How  long  have  you  known  the  old  wotaun? 
— I  have  known  her  ten  or  fifteen  years,  and 
am  sure  1  am  not  mistaken. 

How  long  have  y6u  known  the  son  and 
daughter  ? — Not  so  long  ;  1  have  known  them 
above  three  years ;  that  is,  from  the  laat  time 
they  came  there  before  this  1st  of  January  I 
mentioned. 

By  what  circumstance  do  yon  recollect  it  to 
be  the  Ist  of  January  ?— I  had  a  brother  that 
used  the  sea,  and  he  went  away  that  very  day 
for  Bristol ;  I  am  certain  that  was  the  very 
day :  he  left  something  of  a  will  for  me  to  eB« 
jov,  if  he  died  ;  and  he  has  since  returned,  and 
taken  the  |)aper  from  me. 

[Cross-examined .  ] 

'Mr,  Morton.  What  time  did  youaeetbeif 
at  Abbotsbury  on  the  1st  of  January  ? 

Bailey,  1 1  was  in  the  evening,  betwixt  e^;ht 
and  nine  o'clock,  by  the  kitchen  fire. 

Mr.  Davy,  Do  you  remember  the  danciof 
there  ? 

Bailey,  I  cannot  say  J  do,  for  I  went  homt 
to  bed. 

Thomat  Anion  sworn. 

Anton.  I  live  at  Abbotsbury,  and  am  alaboilf» 
ing  man ;  1  know  that  old  woman  Very  well| 
and  her  son  and  daughter,  as  she  iealls  them. 

Mr.  WUlcs.  Did  you  ever  see  them  at  Ab- 
botsbury, and  when  ? — Anson.  1  saw  tlrein  on 
old  Christmas-Day  there,  being  on  a  Friday, 
the  5th,  at  John  Gibhons's  house ;  they  were 
all  three  t'>getlier ;  1  had  seen  them  a  day  or 
two  licforc  that. 

Hail  you  seen  them  before  this  time  of  c 


ing  there  ? — I  had  seen  her  about  four  ycuf 
ago,  and  her  son  and  two  daughters  with  facr. 
Do  you  know  one  William  Clarke  ?hft*I  dos 


J&f  Wilful  and  Comtpi  Perjury 

I  then)  at  the  la^me  time ;  thev  were 
tof^ber  i  that  Ls,  Lucy  anU  be,  as 
it  was  r^poried  &o  then. 

iooioed  by  Mr.  Narfs* 

r  Ibelr  reasons  for  cu  ming  the  re  ? 

ottg  hife  you  Hred  at  Abhotfibury  f -— 
J  yeart. 

*  it  tlial  firom  the  sea  ?— It  is  about  a 
III. 

/0A11  Hamkint  sworn. 

1  Gre  at  Abbotsbury,  and  am  a 


^  ri^  Look  at  (bat  old  wotnari  thjit  sits 
I  ber  son  and  daiigbter,— i/iia?^ini*  I 
Itteui :  I  saw  Ihem  at  Gibbons's  at 
f«  on  the  1st  of  January,  about  eigbt 

[  January  ?<•— I  am  po  scholar  i  i|  was 
iJtauary,  but  January  was  a  tweWe- 
I  ilia  aoti  aud  daughter  were  danciDg 

ptiyed  oQ  the  tioUq  that  time  P-^-Mel- 
I  Amotd. 

^  was  ihe  old  womao  ? — She  was  silting' 
ber   houie   by  tbe   fire-side  in  the 

k  %  i>ii  rail  it  tbe  kitchen  belonging  to 
—That  ts  tbe  lower  nouse, 
ht  house. 

I^lpe  the  uld  woman  more  than  once  ? 
fl9i  erery  day  till  tbe  day  she  went 
Kieb  was  00  a  Tuesday,  being  the  9th 

'.  month. 
|oa  ever  seen  Uie  old  woman  before 
r  ?*-  Yes,  Sir,  I  bad,  it  may  be  a 
or   three  before,  at  George  Cle* 

St  do  you  remember  the  particular 
lour  seeing  her  P — Because  it  was  on 
%hy^  and  heiug  holiday  time  we 
Bcmg, 

Ifou  acf|uiiiuied  with  ^bem  before  thisT 
t%tas  not. 

Du  dance  with  tbem?— Yas,  I  did,  on 
ay  niifht. 

ou  tell  bow  they  were   counted  f — 1 
fho  my  neighliours  danceu  with. 
PClarke  dance  with? — 1  cannot  tell. 
I  you  dance  wUbf — I  cannot  tell 

i-eismined  by  Atr.  Morton. 

J  a  ^ery  merry  dance :  what  had  you 
Fftll  day  [      Had  you  kept  holiday  the 
my  ?    Cannot  )  ou  remember  your'part- 
ido  not  remeinher  my  partner. 
Tito  danced  with  Lucy  ? — No,  I  can- 

»  was  a  f  ery  great  company  of  us. 
tdid  Georga  cfaocewith?— I  do  not 

reoMmbirr  the  place  ?-*-Yes,  I  do  ; 
[Gibbons'^:  :   it  was  a  common 

bj  body  II  r^  RSI  would. 

Vai  CUtocnu  ^  u<ju»e|  where  abe  came 
31 


before  ?--A  private  house ;  she  used  to  Ue  at 
that  bouse. 

What  is  his  trade f-*-He  is  no  trade,  but  a 
fisherman. 

Does  henerer  catch  such  a  tbinff  as  a  baod- 
kerchief,  such  as  is  round  your  neck,  at  tea  f  J 
-f-No»  not  as  I  know  of.  J 

What  had  the  old  woman  used  to  deal  in?— «4 
1  ne?er  saw  her  deal  in  any  thing;  1  \mvi\ 
beard  people  talk  she  told  thin^. 

Was  it  hardware  f — I  do  not  know  what 
ware  it  was. 

Did  you  ever  talk  with  bcr  ?— Yes,  once  at 
Clements's. 

What  was  your  conversation  then  ?— It  wai 
about  telling  uf  forioues  ;  we  asked  her  ques* 
tiona,  and  she  told  us  she  was  no  fortune* 
teller. 

Did  she  tell  you  what  her  trade  was? — No  ; 
we  went  about  our  business^  there  were  two  ' 
young  men  with  me. 

Mr.  Davy»  Now  we  leare  Abbbotsbury,  anil 
come  to  Fortersham. 

William  H^ina  sworn. 

IT.  Hainct.  I  lire  at  Portcrsbam. 

Mr.  Davy,  Look  at  that  old  woman  ;  do  yoti 
know  her? — W,  Haines,  I  know  her  ?erv  wdf^ 
her  name  is  Mary  S(|uire5 ;    I  have  kdowiI  : 
her  thirty  years  and  upwards.  ^ 

Where  did  you  see  her  last? — I  remember  I 
seeing  her  at  Porlersham  on  tbe  dth  of  January  ' 
t753. 

l>o  you  know  that  young  man  and  woman 
that  arc  by  her  ? — 1  do  ;  they  are  George  and  'J 
Lucy  ;  they  were  all  three  of  them  at  my  dooir  J 
with  William  Clarke  from  Abhotsbury  ;  they 
were  going  to  their  quarters,  the  sign  of  iho 
Chequer,  Jrvshua  Frampton's  bouse  ;    Clark# 
called  at  my  hous^e,  (o  know  if  I  had  done  bii 
clothes  (t  am  a  tailor.)     I  asked  the  old  gen- 
tlt!Wouvati  and  the  rest  to  come  into  rny  house^ 
but  they  did  nnt,  and  went  on  to  tbe  Chequer : 
after  that  I  went  down  to  the  Chequer  ;  there 
wnfl  one  Richard  Chipmao  ;  wc  drank  a  pot  of  | 
beer:    Mrs.  Squires  sat  in   one  corner,  and 
Georfire  in  the  other,  and  Lucy  and  Clarke  be- 
fore the  tire  in  the  kitchen. 

What  sort  of  weather  wa^  it  that  night  f-^H 
waa  terrible  hail  weather  tbe  next  day  ;  1 1e(| 
them  that  ni^ht  there. 

W^hat  makes  you  remember  it  to  he  the  9th . 
of  January  P — 1  renlashopai  Abbotsbury,  and 
wag  going  there  on  New  yearns  day  ;  and  be* 
cause  of  the  old  Chriitmast  V  n^ver  went  lilt 
Monday  the  8th.  Although  I  have  known 
the  old  woman  so  long,  yet  1  never  had  any 
knowledge  of  the  young  on^s,  till  Wilhutit 
Clarke  courted  Lucy  :  as  for  George,  be  migjhl  j 
pass  by,  Imt  1  never  had  any  knowifHige  of  hiia 
till  then,  I  lif  eil  two  years  at  Abb^udiury  :  1 
was  once  at  work  at  George  CleinetitR'K,  and 
the  old  woman  happened  to  bo  tliete  oil  the 
time  I  wai  there,  which  was  seven  or  tigbl 
dayi. 


359] 


27  GEORGE  II. 


Trial  of  Elizabeth  Cannings 


[360- 


Cr08S*ezaroination  by  Mr.  Naret. 

Whattime  in  the  afternoon  did  yoa  see  tbem 
at  your  door  on  the  9th  of  January  ? — It  was 
about  ten  or  eleren  o'clock  in  the  fore  part  of 
the  day. 

Did  you  go  after  them  to  the  Chequer  ?— I 
did. 

In  bow  long  time  after? — About  an  hour  or 
two  after  them. 

How  long  did  you  stay  with  them  ?— I  only 
drank  a  pot  or  two  of  beer. 

Did  you  see  George  Squires  there  ? — No,  I 
did  not  see  him  there  any  time  after  that  after- 
noon ;  after  I  went  away,  I  went  to  Abbots- 
bury,  and  I  met  him  in  the  fields  that  come 
from  lUibOtsbury. 

John  Haines  sworn. 

J.  Haine$.  I  am  son  to  William  Haines  of 
Portersham  ;  I  life  there  with  my  father. 

Mr.  Willes,  Look  at  that  old  %f  oman ;  do 
you  know  her? — J.  Haines.  I  have  seen  her 
before,  at  Portersham  on  the  9th  of  Januaiy. 

Do  you  know  her  son  and  daughter  ? — Yes, 
1  saw  them  there  the  same  time. 

What  day  of  the  week  was  the  9th  of  Ja- 
nuary ?— It  was  on  a  Tuesday  ;  they  lay  at 
the  Chequer ;  William  Clarke  came  with 
them ;  they  came  there  about  nine,  ten,  or 
eleven  o'clock ;  William  Clarke  lay  there,  so 
did  they ;  they  went  away  about  nine  or  ten 
the  next  day  ;  it  was  a  very  bad,  rainy  day. 

Cross-examination  by  Mr.  Wjllianu. 

Did  you  ever  see  this  old  woman  before  that 
time  ? — I  saw  her  at  Abbotsbury  on  the  6th  of 
January,  and  never  before. 

Did  vou  sec  them  in  the  evenings  ?— I  do  not 
remember  (  saw  them  in  the  eveoiug  ;    I  saw 
them  the  next  morning. 
.  Did  you  see  an  exciseman  there  f — No,  I 
did  not. 

How  came  you  to  be  so  particular,  as  to  the 
day  ? — ^The  reason  is,  because  I  saw  them  at 
Al>botsbury  the  6th  of  January,  the  Epiphany 
day ;  I  was  at  Abbotsbury  then. 

How  long  hare  you  li?ed  with  your  father  ? 
—Ever  since  1  was  bom. 

Mr.  Davy.  Upon  your  oath,  is  this  the  very 
woman  ? — J.  Haihes.  It  is  ;  1  cannot  be  mis- 
Ukeu. 

Francis  Bewley  sworn. 

P.  Bewley.  1  live  at  Ridgway,  and  keep  a 
•mall  public  house,  the  sign  of  the  Sloop  a- 
grouud. 

Mr.  Davy,  How  many  miles  is  that  from 
Poi  ten»liam  P — F.  Bewley.  It  is  four  or  ^y%. 

Look  upon  that  old  woman  there,  and  tell  us 
whether  you  have  seen  her  before?— I  have 
'  several  times  at  my  house. 

Did  you  see  ber  at  any  time  about  a  year 
sr{(o  at  your  house  r^-Idio  on  Wednesday  the 
10th  of  January. 

Were  the  von  and  daogliter  with  ber  at  thai 
iime,  iAdClMibt  of  Abbowmry  P— ^ey 


What  time  might  they  come  to  yon  P— I 
believe,  betwixt  nine  and  eleven  in  the  morning. 

Did  they  come  in  all  together  f— I  don't 
know  whether  they  came  all  together,  but  they 
were  there  all  together  in  a  short  time. 

What  had  they  to  eat  or  drink  f--At  first 
they  had  some  roll  and  cheese ;  I  carried  it 
myself;  and  they  had  some  beef-steaks  for 
dinner,  at  about  one  or  two  o^clock,  or  after ;  it 
was  not  much  off  of  tliat. 

Do  you  remember  the  drcumstance  of  toy 
body  having  a  dead  horse? — Yes,  Sir;  a 
woman  going  from  Siron  market  to  Wey- 
mouth market*  the  horse  was  taken  sick  apo« 
the  road,  and  she  hired  my  horse  to  ride  to 
Weymouth  iparket :  she  bid  me  take  care  of 
this  horse,  and  get  a  bUu:ksmith  to  do  some* 
thing  to  him,  and  the  horse  died  on  the  Wed^^ 


mugtc 
nesoay 


morning,  at  almost  day  :  I  got  a 


the  gypsey-womaDy 
lie?— Tbey  lay  at  my 


ber  MB 


to  lend  me  a  horse  to  draw  him  out  of  my 
stable  to  a  place  behind  my  house,  under  a 
hedge :  when  the  woman  came  back,  she 
desired  me  to  give  somebody  six-pepoe  to 
skin  him,  and  the  horse  was  a-skinauig  aa 
they  came  along  into  the  yard. 

Did  Clarke  sUy  at  your  house  that  nligbtP 
—No,  he  did  not:  a  man  was  selling  tur- 
nips, with  two  horses  about  the  parish ;  and 
Clarke  had  spoke  to  him,  as  far  aa  I  beardt 
to  come  to  he  to  carry  him  home  onr  one  of 
those  horses  :  it  was  a  terrible  wet  day  aa 
ever  I  knowed. 

Where  did 
and  daughter 
that  night. 

Before  you  were  up  in  the  moming,  did 
any  body  come  to  your  bedside? — ^Yci, 
George  Squires  did,  with  his  mother:  he 
told  me  he  bad  a  pattern  of  a  waistcoat,  [He 
produces  a  remnant  of  nankeen^l  thia  is  the 
stuff. 

What  did  he  say  to  yon?^The   first  he 
said  was,  he  asked  me  if  I  wanted  a  waist- 
coat, and  said   he  bad   been   to  Abbotsbitirjrt 
and  money  was   short,  and  I  should  have  ifc 
clieap.     I  said,  I  did  not  understand  it, 
1  never  had  such  a  waistcoat  in  my  life, 
I  did    uot  want  it:    with    that   his  mol 
came  in,  and  said,  they  were  short  of  money, 
and  desired  to  leave  it  in  my  hand,  and  desum 
I*d  take  it  for  the  reckoning,  which  I  did, 
and  have  had  it  ever  since.      They  told  m» 
they  would  either  send  the  money,  or  bring  it. 
Had  you  ever,  before  this  time,  seen  tb« 
gypsey-woman  and   her  daughter? — I  cant 
say  justly  to  the  old  woman ;   1  once  saw  th9 
son  and  daughter  dancing  at  our  house,  when, 
they  lodged  at  Broadway  once. 

Mr.  Davy  to  George  Sijuires,  Liook  at  thi^ 
piece  ^he  takes  the  nankeen  in  his  hand.] 

Squirei.  1  can't  swear  this  is  the  same  tliat  C 
left  with  him,  but  it  is  very  much  like  it;  it  is 
the  same  sort  of  stuff. 

Bewley,  I  wrote  my  name  upon  it,  before  ( 
let  it  go  out  of  my  custody  to  any  body ;  my 
name  is  now  on  it  [Shewn  to  the  jury,  iimI  a^ 
pcared  witfi  his  name  ob  h.] 


361} 


J^T  Wilful  and  Corrupt  Perjury. 


A.  D.  175*. 


[362 


BIr.  Dnvy,  How  do  you  remember  tbe  time 

'ifly  ? — B^wley.  1  am  sure  il  ^ras  lliQt 

^  retaOD  H  was  •ttcli  vreatber,  aod  the 

Bemonn  were  lillingf  at  court ;    it 

B  fltsod,  anil  tlie  dying  of  the  borse,  and 
ertral  ctrcuiustntjces. 
flow  far  If  B4«Qdrunf  from  Tl!d(rway?— It 
,  JM  flIWn  Gom^mt^  miles.      ^Ve  know  that 
ocii  14  Blwayt  kept  Ihe  8tb  or  lOlh  of  Ja- 
many  of  nty  ueighWurs  were  at  tbe 
MM  told  me,  when  they  came  home» 
\  m  fiood  there  was  in  ^oing. 

Crei-€xmmioed  by  Mr.  Moreton, 
Are  joo  sore  this  was  January  1753 1 — It 
vit  J^Qtury  was  twelve- month* 

Ai^  yma  aiire  vou  have  seen  Georg^e  and  tiia 
•Mr  »-dwietDg  Wfore  thi«  f — ^Yes,  8ir«  I  have, 
tbrt^or  four  years  back  ;  but  I  canH  aav  1 
tml  Men  tbe  old  woman ;  they  lodged  at 
pmAwmj  than. 

'■WIlM  ifttiAe  t\u\  they  carry  on  ? — Upon  my 
dyt  owwt  telK 

DM  you  know  of  their  dealin|f  in  nan- 

' — J 'itfever    knowed    they    did;     they 

in.'s.  ti»  me  ',  I  never  Baw  them  ha?e  a 

re, 

t  ni^way  from  the  aea  ? — Tt  is 

iftoot  two  miiea. 

VKrTT  yt>a  np  here  when  Btary  Squires  wa* 

I  was  not. 

i  not  applied  to  by  George  or  Lucy 

up  to  that  trial? — No,  I  was  not*     I 

ibe  news  of  a  Mary  Squires  tried  for  a 

,  btit  I  did  not  know  that  it  was  this 

^-] aires  ;   1  said  th€  re  were  others  of  that 

Did  you    erer  know  a  Mary 

,- .J;  «acb  a  face  as  this  ? — BewUtf.  No, 

^. 

Tfiomat  Mockeridge  sw(itn, 
Mr.  Doty,  liiform  tbe  Court  who  you  are, 
laJ  *hetber  you  have  erer  seen  those  three 
tKHoi,  and  when  and  where? — Mockcridgf.  I 
att  It  ^lti4i<>lsbur>'  now  ;  f  had  been  at  Hidg- 
^f  and  Ufiway  i«tfUin|^  taniips  (it  was  very 
W  iveattAer)  on  the  lOlh  of  January,  by  the 
pfittit  «tUe ;  it  was  the  Wednesday  after 
^M  Chri»tmas-diiy.  [  found  the  old  woman, 
Gt'ori^e,  and  ber  daughter  Lucy,  and 
Clarke^  at  Mr.  Bewley*s  house,  at 
of  the  8hip  i  I  bad  made  an  end  of 
I  my  turnips  before  t  came  tliere ;  J 
f  I  bctiffrc,  between  twelve  ami  one 
and  think  1  stopped  ttiere  till  be- 
iwo  aoil  three* 
llia4  yiru  aeen  the  old  woman  Mary  Squires 
p?— f  \iui]  %t:vcr:il  limes.  1  remember 
'  c  1*«fii«nis*s  house,  ^oinff 

{we  cainiGraoechurch- 
t)  aluMii  liifr*-   vt-nir*  »*i»o  before  that. 
[  An  yuu  sure  lho»e  are  ttie  people  you  saw 
Itff  thai  d*y)^ — I  am    upon   my  oath,  and 
•in  uoi  rmne  hctt  to  speak  a  false  word  tor 

r 

ktiMTW  of  Any  acciilent  that  hap. 
|*^M4  i>>  a  h«At  m  thia  day  f— No,  1  do  uot* 


[Grdfl»-eYamined.] 

Mr*  Naret.  Where  did  you  go  hack  to ' 
alWrwardsP — Mockeridge.  To  Abbotsbury  :  1 
bad  two  horses;  1  r^e  one,  aod  Wtfliam 
Clarke  the  other;  be  went  to  Portersham, 
where  he  lodged,  and  I  went  home  with  my 
horses  ;  he  took  leave  of  those  people  at 
Ridgway. 

John  Taylor  sworn. 

Taylor.  I  life  at  Fordiogton,  at  the  sign  of 
the  Coach  and  Horses. 

Mr.  J>aTy.  Whereabouts  is  that? — Taylor.  It 
is  joining  Dorchester  \  it  is  not  a  i^tone^s-cast 
apart ;  many  do  mistake  it  for  part  of  the  town. 

Do  yoo  remember  this  unhappy  old  woman  ? 
— I  know  ber  perfectly  well;  I  ba?e  seeo 
ber  above  once  or  twice. 

Do  you  know  that  girl  and  the  young  man 
there? — f  do,  and  have  known  them  some 
years  ;  they  are  her  son  and  daughter;  f  saw 
them  at  Fordington  on  Thursday  the  lltb  of 
January ;  they  were  not  in  my  house,  they 
were  in  my  stable  on  the  10th ;  there  was  such 
a  rain,  they  could  not  pass  along  the  road  ;  the 
waters  were  so  high,  they  went  through  a ' 
neighbour's  house  and  my  stable  the  back  way. 

Are  you  a  milter  ? — No,  but  there  is  a  milt 
lies  close  by  my  door. 

How  ditf  they  get  through  the  water  ? — ^Tb« 
old  woman  took  up  her  coats  and  went  along 
through  it,  and  Ihe  young  woman  was  car- 
ried over  by  the  miller^s  b^y  on  horseback. 

Did  you  see  the  old  woman  cross  on  foot?^ 
Yes,  Sir,  to  be  sure,  1  saw  it  as  plain  as  I  sea 
you. 

W  hen  was  this  P — It  was  on  Thursday  tbe 
lltb  of  January  1753,  io  the  forenoon  ^  bet  win 
the  hours  of  eight  and  eleven. 

Did  you  see  ber  walk  all  the  way  through 
the  water  ? — I  saw  her  go  along  part  of  it,  f 
did  not  see  it  all,  because  it  is  two  or  three 
rivers  ;  I  saw  her  go  over  two  of  tbe  rivers. 

Did  you  see  any  body  carry  her  overf**- 
Nobody  carried  her,  she  went  on  foot. 

Did  you  see  the  old  woman  cross  all  the ' 
rivers?— Slie  went  over  the  bridges,  as  far  as  1 
know  of  it ;  she  forded  the  water  at  my  stable- 
door,  or  as  near  it  as  it  is  cross  the  court>yard; 
1  did  not  see  ber  walk  through  all  the  water ;  I 
had  no  business  to  watch  her  ;  George  had 
told  me  they  lodged  at  IVIr.  Bew|ey*s,  at 
Ridgway- Foot,  the  nigbl  before* 

Did  they  IfII  you  whuberlhey  were  going  ? 
— I  can't  tell  where  they  were  going;  they 
were  in  the  Blandfbrd-road. 

Cross-examined  by  Mr.  Williamt. 

You  say  you  saw  tbe  miller's  boy  carry  OTCf 
tbe  dautjhterP— He  carried  ber  over  all  of  it; 
the  place  where    he  took  her  up  she  wade4  ' 
through,  and  after  that  there  be  bridges;  oue 
IS  iifnne,  and  the  rest  are  wooilen  ones. 

*,ow  far  i^  tt  Irom  your  bouse  to  ChetUe?— 
I  caueot  tell ;  I  believe  it  seventeen  or  eighteen  J 
uiUev ;  but  1  don't  know  where  il  i«« 


3C3]  Ti  GEORGE  n. 

Thomat  Hunt  sworq. 
I  live  at  CheUJe,  I  am  j 


X^ioi  of  Elizabeth  Cannings 


Hunt,    I  lire  at  CheUJef  I  am  a  thresher* 

Mr.  WilUh  Look  ut  itiat  old  woman,  her 
•OD  autt  ilfiughier :  have  3^00  seeti  them  before  f 
— Iffirtt,  I  have  at  Chetile,  on  Friday  the  12th 
of  January  1753^  utiout  four  in  Ibc  a'fkemooQ  : 
the  oM  woman  came  into  our  back-side,  to  the 
bsru-door  to  me,  and  besr^ed  lodging  of  me^ 
there  was  no  pubtjc-htiuse  ia  the  place;  I  let 
licr  lie  ia  an  oqt-bouM^  od  some  de^ri  oat- 
ptraw  ;  il  beloni^s  to  Mr,  Walls  of  Cranborne  : 
}  asked  her,  if  she  had  any  body  belofig^d  to 
lier?  ahe  told  me  she  bad  none  but  a  couple  of 
childreoi  and  immediately  called,  Why  don't 
^ou  come  aloug  ?  atid  immediately  there  canie 
a  man  and  wuman. 

Look  at  that  man  and  woman  near  her ;  do 
50U  know  them  P — I'he  man  I  can  swear  to 
safely ;  the  v/oman  I  do  not  so  much,  because 
she  was  covered  over ;  I  know  the  man  full 
well,  as  I  know  my  right  hand  from  my  left ; 
I  let  them  in  at  nighty  and  there  I  found  them 
til  the  moroing  ;  and  tbe  morning'  being  very 
wet,  they  remained  there  till  ten  or  eteren 
i>*cbckt  or  it  may  be  something  more. 

Had  you  erer  seen  tbe  old  woman  before? — 
I  bail  pot ;  but  I  am  very  sure  it  Is  the  woman, 
keibre  God  and  the  world. 

How  cui  you  fix  upon  tbe  timeP^^It  was  a 
Tcry  remarkable  day,  tbe  old  new  year*s~day, 
which  Droved,  by  altering  the  stile,  to  be  tlie 
li?tli  of  January. 

Cro$9'eicaroia9«l  by  Mr.   M&ri(^. 

Did  you  ever  tee  tbeai  before? — No,  oenrer 
More  that  Friday. 

Have  yon  seeoihem  since  ?-~I  have,  in  the 
eitv,  about  a  mouth  before  Michaelmas* 

bo  you  know  whore  they  came  from,  that 
day  you  saw  them  at  Chettle?— No,  Sir,  I 
don't. 

How  far  ia  Ridgway-Foot  from  Chettle  ?— 
1  donU  know. 

How  lar  ia  Cbeltle  from  Doicbester? — 
They  tsount  it  twenty  mites  i  but  I  never  was 
there  iu  my  lite. 

Jahn  Elder  ton  a  worn, 

Eld^rton^  i  am  a  servant- man  ;  ft  carter  to 
fioe  farmer  Thane,  ai  Mariin  ;  I  have  seen 
that  old  woman,  and  the  young  woman,  and 
the  young  felbw. 

r  Rlr.  Gutc0j/nt.  Where  P — Elder  ton.  At 
Martm«  on  ^aiiirdHy  eeven-night  after  Old 
Chrinliims-day,  in  the  year  1733,  iu  ibe  afier- 
noon,  about  four  u 'clock  ;  they  all  three  la}'  iu 
an  oul-house  where  I  hve;  the  old  woman 
came  fir«t,  and  a^ked  my  master  Leave  to  he 
there. 

Did  you  hear  herF-^I  did. 

Wa«  liiere  straw  or  hay  P — I  saw  them  all  in 
Ihe  cHit-houHe  about  four  lu  the  evenings  tiud  00 
the  morniag  before  they  went  away* 

W  hat  lime  did  you  see  them  in  the  morning P 
—I  saw  them  about  eight  o^clock  ;  they  were 
giitu^iipi  I  am  senBLble  tbey  pire  thts  three 
people. 


Had  you  ever  seen  the  old  wotnan  before  f^ 
No,  1  had  not. 

is  your  master  farmer  Thane  here  ?— No 
he  was  coming  up,  but  was  taken  sick  dq 
road  ;  he  rame  to  Salrabury  in  company  with 
us,  and  there  we  left  him ;  he  came  lo  gif  ^ 
evideocc  in  this  uia). 

Cross-examined  by  Mr.  Naru. 

What  time  did  they  come  to  your  inaf1er*ij 
— Ahout  four  o'clock* 

Bid    they    all    come  together  r*—Tb€  ok 
woman  came  a  little  before  the  others :  wk 
master    had  granted  lodging,    she    went  II 
calltd  them  ;  then  they  came. 

What  is  getting  up  out  of  a  barnf — li  il 
dressing  themselves ;  putting  on  their  chitlic% 
or  tackling  themselves  up. 

Did  you  see  any  sheets  they  had  ?— No,  ( 
did  oot  see  any. 

Did  you  see  any  of  their  cblhes  off  ?-«No,  I 
did  not ;  they  were  tying  their  clothes  op. 

Did  you  see  their  gowns  off,  or  caps  off,  <f 
petticoats  off  ?— No,  Sir. 

Mr.  Davy,  Did  the  straw  appear  as  if  IImj. 
bad  laid  on  it  ? 

Eider (i^n.  It  did;  there  were  marks  wbtfl 
they  had  kid. 

Wiliiom  Hort  sworo. 

Hort,    I  live  at  Martin. 

i^Ir,  Dat?y.  Look  at  that  old  womatt ;  did 
you  ever  see  that  tace  before  T^Hvrt.  Vc^ 
Sir,  I  have,  at  Martin. 

Do  you  know  that  girl  behind  her,  and  tbit 
man  near  her  ?— Yes,  Sir,  I  do ;  they  are  the 
woman's  daughter  and  son,  for  what  I  kuQV. 

When  c(id  yon  tee  them  before  ?— I  saw 
them  all  three  at  Martin,  on  Saturday  seteu- 
night  atler  old  Christmas- day  ;  they  lay  iA  to 
otit-house  at  ftirraer  Thane'a. 

What  do  you  mean  bv  an  out- house?— By 
that  1  mean  a  barn,  or  idace  where  was  stmtf. 

How  did  they  lie  ? — I  don't  know ;  I  did  doI 
see  them  lie  in  bed  :  I  am  farmer  Thane's  ser* 
vant  J  I  hey  asked  kav  e  of  mastf  r  to  lie  there. 

What  did  they  lie  u|>on?— (  cannot  ny 
what  they  lay  ujion,  there  was  straw. 

Do  vou  take  u|k>o  yon  to  say  tht^se  are  the 
same  ttiree  persons  .^—1  do,  by  my  life ;  that  1 
say  in  the  presence  of  God. 

Look  upon  them  again, — I  do>  1  am  sura 
they  are  the  same. 

Cross-examined  by  Mr.  Wiiliam$. 

How  long  did  lliey  stay  ? — Tbey  caine  to 
the  evening,  and  neat  away  the  next  morning. 

Did   you  see  them  at  any  other  time.^^-I 
saw  the  old  womtin  in  master's  house  by  the  ( 
^re,  and  her  daughter  was  joining  cbioa  for  ] 
them. 

John  Bland  ford  sworn, 

/.  Blandferi.  I  Ufe  with  farmer  Thaoc,  %i  ^ 
Martin. 

Mr.  WiiUt*  What  tire  you  i^Blanfffifrd^  \ 
I  am  a  blacksmiib. 


Jir  Wilful  and  Corrupt  Perjury. 

1X  tbtt  old  NUroman.— I  mw  lier  there 
IftCordaj  efeoingf,  seveQ  nights  after 
Atmu,  about  four  oMock,  or  some- 
er,  which  is  the  ISth  of  January. 
oa  we  only  the  old  woman?— No,  I 
f  her,  because  she   came   in  before 

on  ever  seen  her  biefore  that  time  ? — 
D*t  know  that  erer  1  did. 
le  lie  at  farmer  Thane*sP— She  did 
ve,  but  I  caqnot  tell  where ;  I  did  not 
Amrards  then. 

RMf  cacammed  by  Mr.  Morton. 

bug  might  you  see  her  ?— It  might 
quarter  of  an  hour,  or  somethiog  less. 
foa  seen  her  since  that  lime? — I  hate. 
r— Last  Wednesday. 
Ni  cao  swear  to  her  afler  a  year  and 
fci,  Sir,  if  it  was  30  years  I  could. 

Jmtph  HayterBwon. 

yter,  I  li?e  at  Coombe,  and  am  a 

^mtagne.  Do  you  know  that  old  wo- 
i  young  man  and  woman  P — I  do  all 
MW  them  between  Martin  and  Coombe 
laj  ieven-night  afler  Old  Christmas : 
cm  oo  the  road  as  they  were  coming 
Amb»  about  eleven  in  the  morning. 
fcar  do  you  mean  ?— I  mean  in  the  year 
le  yoQog  man  was  a  little  before  them. 
Id  woman  had  hold  on  the  daughter's 
he  youttg  man  asked  me  how  far  it 
I  Coombe  ?  I  said,  I  thought  he  knew 

■  1  did  (as  I  had  seen  him  before) ; 
jntlewoman  was  half  a  dozen  lugg[s 
im  ;  she  asked  me,  and  1  told  her  it 
■Qes  and  a  half. 

M  seeu  them  both  before  ? — I  had,  but 
y  I  bad  seen  the  young  woman  before. 

■  the  reason  you  know  that  particular 
^  reason  my  wife  was  gone  over  to 
natmas,  and  1  was  going  to  fetch  her 
B  Martin :  and  I  saw  them  again  the 
'  at  Coombe ;  I  came  back  to  Coombe 
I  same  night:  I  saw  them  on  the 
Momtng  at  7  o'clock ;  I  saw  them  at 
sviile's,  the  sign  of  the  Lamb  ;  Tho- 
riUe  \i  dead ;  I  went  down  to  ask  him 
d  a  load  of  furze,  I  wanted  a  load ; 
I  old  gentlewoman  sat  in  the  comer, 
gte  stood  up  in  the  mMdIe  of  the  house, 
f  alood  by  him ;  I'never  spoke  a  word 
then. 

^itMB-examined  by*Mr.  I^aret, 

liliff  before  this  was  it 'that  you  bad 
eld  womn  before? — I  cannot  say,  it 
:wo  years. 

M  you  take  them  to  be? — 1  took 
be  what  we  call  gypsey  people. 
>  had  you  seen  George  before  ?— I  bad 
I  often  at  Coombe. 

ot  his  mother? — Yes,  and  with  his 
IMM  years  back ;  but  slie  might  be 
that  time  and  I  not  see  her. 


A.  D.  175«.  [SG6 

Is  CoAttibe  a  market  town  P— No,  it  is  a  vil. 
lage;  I  heard  ofher  being  indicted  for  robbing 
a  ^1,  and  I  was  applied  to  to  come  up. 

Were  you  here  when  Ofeville  was  mdietedf 
— No,  I  was  not  here  time  enough. 

Did  you  come  up  to  the  okl  woman^  trial  f 
— I  was  not  «ppliM-to  to  come  up ;.  I  told  it, 
as  soon  as  ever  I  heard  Greville  went,  that  I 
met  her  in  such  a  place. 

Why  did  yon  not  appear  to  giro  eridenoe 
before  P— I  was  mot  subpieDaed,  is  the  caoae  I 
did -not  come. 

Mary  Greville  sworn. 

M,  Greoille.  I  live  at  Coombe. 

Mr.  Davy*  What  relation  are  vifa  to  Tho- 
mas Greville,  who  was  indicted  for  perjury 
here?* — M.  QrevUle,  1  am  sister  to  him; 
he  is  dead. 

Look  at  thai  old  woman,  and  the  girl  in  a 
capuchm,  and  the  man  behind  her.<— I  know 
these  three  persons. 

Where  did  you  see  them  P — I  aawthem  od 
the  14th  of  January,  on  a  Sunday,  at  my  mo- 
ther's house,  the  sign  of  the  Lamb  at  Coombe  ; 
I  live  in  the  same  nouse;  they  went  away  oa 
the  Monday  morning. 

Do  you  speak  with  absolute  certainty  that 
these  are  the  very  persons  you  saw,  and  no 
Other  P— ThcM  be  the  very  penons  indeed. 

May  you  not  be  mistaken  P— It  is  impossible 
I  should ;  I  am  very  well  satisfied  I  am  not 
mistaken  in  them. 

Had  you  ever  seen  them  befbr^F— I  donH 
remember  1  ever  did. 

Did  yon  notice  the  old  woman  P*->Yes,  I*  did. 

I  speak  of  her  features,  not  her  profettkHi. 
— ^That  is  what  I  mean ;  and  that  is  the  veiy 
son  and  daughter  indeed. 

Cross-examined  by  Mr.  WilUatM. 

Who  waited  upon  them  ? — My  mother  did  ; 
they  were  by  the  kitchen  fire. 

What  time  did  they  come  in  P— They  came 
in  between  two  and  three  in  the  alWnoon. 

When  did  they  go  awayP->-They  went 
awav  between  seven  sind  ei^ht  in  the  momiog. 

How  far  is  Coombe  fromfllartin  ? — It  is  fbor 
miles. 

George  Towil  sworn. 

G.Towil.  1  live  at  Coombe;  I  have  sees 
that  old  woman  and  her  two  children  belbre. 

Mr.  WilUs.  When  did  you  see  tliem  before  f 
^-Toail.  I  saw  them  on  the  Smday  was 
seven-night  after  Old  Christmas  day,  'whieh 
was  the  14ih  of  January. 

Are  you  certain  of  it'? — I  am  vei^  certefiu 

Where  did  you  see  them  P-^-At  Mary  Gre- 
ville's,  at  the  sign  of  the  Lamb. 

Were  you  in  company  with  them? — ^No,  I 
was  not ;  nobody  but  the  landlady  and  1  drank 
together;  we  were  passing  our  aeooUBta. 

How  long  were  vou  there?— •!  believe  I'Wti 
there  from  two  o'clock  to  four. 

*  8det{icPFoceeding8agiiii8tMn,imfe,p;475. 


M7J  27  6EQIGEa 

tmt^i  4t^  hamm  ll«t  ever  I  M 


1  Mai,  1  iTM  A  «<i 


Tfciy 


WlMa  were  jm  caici  ?-— The  icH  i 

Iljtre  MB Icoito fee dw «U  1 
--Jkave^eaJMMfeiliitf 
Are  jre«  tare  t*  tWai  afl  ?— -1  tm. 

BkMt^  Aimer  tmmm. 


JL  Aimer.  I  five  M 
ttofanMrJeMllerm. 

Mr.  Guetfne.  Leek  M 
wlie  »  flK? — K.  Jimr.  lHmejfkfuetM%  nd 
0|m  m  tlie  eefOclMi  it  bcr  4be|fMer  Lacy ;  and 
tibe  ether  peraeo  bjr  her  it  bcr  tea  George. 

Wbere  beve  je«  fen  tWa  More  ? — I  nw 
tiwoietCeeMlw  on  HiiAiy  tlie  14tb  of  Ja- 
MMry  17599  joit  after  eoeo'ciodk;  tbey  wece 
tiae elfiaf  sfos  tlie  road. 

Did  jo«  ffcak  to  tbeM?— Her  foa  asked 
me,  bow  Car  It  «ae  to  Sottoa?  I  said,  1  eoold 
•el  tell,  Ar  I  iras  mewtr  there. 

What  esuferaatm  had  jos  with  the  eU 
weoiaa  ?— 'It  iras  ia  the  wa/  ef  hateriag  aod 
tdfog  of  fort— <e. 

Did  yea  speak  to  the  yooag  woman?— I 
ne?  er  said  a  word  to  her ;  I  aaw  the  oM  wo- 
man afterwards;  sbe-came  la  oor  master's 
door. 

Da  Yen  know  what  fo?— No,  I  don't ;  aod 
I  saw  her  sen  on  the  Monday  momiogf  at  the 
widow  Greville's,  al  Coombe,  bat  I  ne?er  spoke 
a  word  lo  him  there,  or  he  to  me. 

Did  yoo  see  the  old  womaa  or  daufl'hter  on 
the  Monday  ?^No,  8tr,  I  did  not. 

Croai-examioed  by  Mr.  Naret. 

When  they  spoke  to  yon  between  Sattoo 
and  Coombe,  did  yoa  koow  them  ?— No,  Sir. 

Then  bow  do  yoo  know  that  this  is  George 
and  Lucy  ? — I  know  that  only  as  they  told  me 
since,  for  I  ne? er  saw  them  before  in  my  life. 

Did  the  old  lady  tell  yoa  yoar  fortune?— 

All  is  coma  true,  I  hope? — I  did  oottbiok 
anv  thing  was  true  when  it  was  done. 

What  did  you  give  her  for  telling  you  your 
fortune  ?— Two*  pence. 

Were  her  daughter  and  son  by?— They 
went  on  while  we  talked  together. 

What  time  did  you  see  her  at  Coombe  ? — 
Upon  my  return  therein  the  evening  1  saw  her. 

flare  vou  seen  her  since?— 1  never  saw  her 
since,  till  I  saw  her  in  Newgate. 

lloUrt  Merchant  sworn. 

A.  Merchant,  I  live  at  Coombe,  I  am  a 
•arter. 

Mr.  Davjf.  Do  you  know  that  old  woman  ? 
•«-K.  Merchant.  1  do,  very  well. 

Do  yoa  kaow  bar  son  and  danghter?— 


IhyMr.in^ 

ar  maakr  Sen  v« 

'—We  bad  a  ^ 

was  there; 

—  the  fierier  iiiprtid  it  to  the  I 

knawM^  Ibalibat  was  tke  da  J  tba 

What  is  yevr  ■Han's  name  f— 

ftrBMrJobaHarTv. 

When  bad  joa  this  fspote?— 


14lb  «^ 


fimotealalL 

When  da  yas  bear  yev 
the  14lb  «^  Janary?— The 
■aawaatboe. 

HowcaaM  yea  SsbetaUdag  d 
IbeaoBtb?— Beiag  the  horse  wa 
and  becase  the  bene  waa  bad,  thr 


the  day  of  the  ] 

WImi,  were  they  aettliag  their  ai 
Hmj  were,  so  fiv  aa  I  know :  m« 
par  the  ftirier  men^  lor  coring  tl 

Was  there  any  talk  then  abool  tl 
—No,  Sr,  I  beard  no  talk  about  thi 

Mimiim  Ralerf  swora. 

Wkiers.  IliveatCooodie. 

Mr.  Willes.  Did  you  ever  see  tl 
man  before  f-^Waten.  Yes,  I  have 
on  the  14th  of  January. 

Were  her  son  and  daughter  with 
Sir ;  I  saw  her  at  a  farmer's  hou 
live. 

How  came  she  to  come  there  ?— 
and  asked  for  some  small-beer. 

Had  vou  ever  seen  her  befon 
never  did;  bu|  1  am  sure  she  is  the ' 

Cross-examined  by  3Ir.  Mcrrt 

How  k>ng  did  she  stay  there  ? — 
thereabout  the  value  of  a  quarter  of 

Did  she  tell  thee  thy  foriune  ?— I 
not;  I  did  not  want  it. 

Mr.  Davy.  Your  lordship  may 
that  George  Squires  could  give  no 
places  between  Coombe  and  fii 
therefore  we  could  not  collect  an; 
between  these  towns ;  so  the  ne 
comes  from  Basingstoke,  which  yo 
to  be  forty  miles  from  Coombe,  and  t 
days  journey  accordiog  to  their  rati 
ling:  they  were  at  Coombe  on  th 
January,  and  you  will  find  them  at  B 
on  the  18th. 

Mary  Morris  sworn. 

Morrit*  I  live  at  Basingstoke,  altl 
Eagle. 


969] 


fir  Wilfxil  and  Corrupt  Perjury* 


A.  D.  1754. 


CS70 


'  Mr.  llfly.   Look  wX  that  old  womao. 

Marru*  That  old  gentlewoman  it  Mary 
SfMiti,  and  the  yonng  woman  is  Lucy  Squires, 
aid  Iha  yoiMK  man  ii  George  Squires.  I 
wrota  a  letter  for  tba  young  woman  on  the  litb 
of  January. 

What  day  of  the  week  was  it  P— Really  I 
wilt  not  be  positi?e;  it  was  on  a  Thursday 
or  Friday  ;  it  was  for  one  Clarke  at  Abbotsbury. 

Look  at  this  letter ;  is  this  your  writing  ? 
—(She  takes  it  in  her  hand) — Sir,  it  is  my 
Inm- writing,  directions  and  all ;  my  little  boy 
eirried  it  to  the  post-office,  and  Mr.  Squires 
fate  him  a  half-penny  because  be  did  not  stay. 

Tlw  Letter  read,  directed  "To  the  post- 
boose  in  Dorchester,  to  be  directed  to  Abbots- 
bvy  for  Mr.  Willisipa  Clarke,  cordwainer. 
ttuB  with  care.*' 

"  Batingttoke,  Jan.  18, 175*. 

"Sir;  this  with  my  kind  love  and  aenrice 

%iy«B,siid  all  yonr  family,  hoping  you  are  all 

la  fsad Walth,  as  I  be  at  present.    This  is  to 

that  I  am  very  uneasy  for  your 

journey,  hoping  yon  received  no 

your  journey  ;  so  no  more  at  pre- 

yonr  most  obedient  and  humble  ser- 

waat,  LucT  Squires." 

"  I  desire  to  hear  from  you  as  soon  as  pos- 
ikUe.  Direct  for  Lucy  Squires  at  Brentford, 
Mv  Lottdon;  George  and  mother  give  their 
CBinpliments  to  you,  and  all  yonr  family." 

Mr.  Dmvy.  You  are  sure  this  is  yonr  hand- 
r?— Aforrii.  This  is  my  own  hand- 
J  which  1  wrote  at  Basingstoke,  at  the 
Ntacst  of  LucT  Squires. 

Were  the  old  woman  and  son  there  tben  ?— - 
IWt  wore  in  the  house  all  the  time;  they 
•wd  have  bdged  at  my  house,  but  I  had  not 
h<|iam  >  ^^y  ^^^^  ^  pii^  ^^  ^^^  ^^  ^^«  3ind 
■la£t  of  bread,  and  went  on  to  Old  Basing. 

Bsw  far  is  Old  Basing  from  Basingstoke  f 
•4i"m  •boat  two  miles. 

Ii  it  not  possible  you  may  mistake  these 
pMplefor  any  other  gypsies  r—I  am  positive 
tetheae  are  the  very  people  I  saw  at  my 


Nares. 

been  at  your 
at    my  house 


Crosf-ezamined  by  Mr. 

Had  the  old  woman  ever 
kiase  before? — She  had  lain 
iksirt  a  year  and  three  quarters  before. 

None  bat  the  old  woman?— No;  I  never 
Hv  the  son  and  daughter  before. 

Ave  yon  sure  this  letter  was  wrote  the  day 
it  bean  date  ?— I  am  positive  sure  it  was. 

Mr.  Willis  sworn. 

,  Mr.  WiUes,    How  tar  is  Coombe  from  Ba- 
tipntoke  ? — Willis.  It  is  about  forty  miles. 

Where  bad  you  this  letter? — When  I  came 
to  the  post-office  at  Dorchester,  which  is  the 
MiKrt  poat-office  to  Abbotsbury,  the  dircc-. 

*  The  other  figure  being  in  the  corner  was 
■PIMsed  to  be  torn  off. 
VOL.  XIX. 


tions  being  very  blind,  the  post-master  had 
sent  it  under  mistake  to  one  Clarke  as  1  under- 
stood, at  Cbarlster,  who  sent  his  wife  with  it 
immediately. 

The  Court  look  upon  the  back  of  the  letter, 
and  discover  two  post-marks  upon  it. 

Thomas  Ravenhill  sworn. 

Ravenhili,  I  belong  to  the  post-office ;  I  am 
assistant-clerk  to  the  western  road. 

Mr.  ,Davy.  Look  at  the  post* mark  upon  that 
letter,  and  tell  us  where  the  letter  was  marked. 

Ravenhill.  This  is  a  mark  of  the  General 
Post-office  in  London. 

What  day  of  the  month  does  it  appear  to  bo 
stamped  ? — The  stamp  is  very  imperfect ;  i 
cannot  take  u|>on  me  to  speak  with  certainty. 

Of  whose  hand- writing  is  the  post-charge? 
—This  is  mine,  that  is  the  charge,  which  is 
seven -pence ;  the  original  place  where  it  came 
from  to  London  is  three- pence;  that  is  three- 
pence up,  and  four- pence  down :  it  is  directed 
to  be  left  at  the  post-house  in  Dorchester,  that 
is  four- pence. 

See  what  part  of  the  printed  mark  do  yon 
find  plain  ?— a*he  stamp  is  so  very  imperfect, 
that  I  cannot  with  any  degree  of  certainty 
tell ;  the  9  is  very  plain ;  whether  it  is  10 
or  29  1  cannot  say  :  it  is  not  the  9th,  for 
if  it  was,  that  figure  would  have  been  in  the 
centre. 

Look  at  the  letters  at  the  bottom  of  the 
drcle. — ^The  second  letter  seems  to  be  an  A. 

I  think  your  stamps  are  marked  MR  for 
March  ? — ^They  are. 

Then  there  can  be  the  name  of  no  month, 
the  second  letter  of  which  is  A,  but  January 
and  May.— I  do  not  recollect  that  the  second 
letter  of  any  stamp  is  A,  but  that  of  January 
and  May. 

Can  you  get  the  stamps  from  tlie  Post-office, 
that  the  Court  may  see  them?-— Yes.  (Hegoe% 
and  returns  with  several  impressions  on  paper, 
as  Jan.  9,  Jan.  19,  Jan.  S9,  and  May  1,  March 
26.)  These  are  all  the  stamps  where  A  is  the 
second  letter  ;  all  the  inland  stamps  have  the 
figure  on  the  top  of  the  letter,  and  the  foreign 
stamps  have  it  at  the  bottom ;  the  figure  9 
is  placed  not  in  the  centre,  but  just  over  the 
seconfl  letter. 

Look  at  this  letter ;  do  you  believe  that  stamp 
to  be  January  ?— I  cannot  form  an  opinion  of 
il,  more  than  any  stranger  to  it ;  I  believe  it  to 
be  the  19th  or  29th,  rather  than  the  9th. 

Cross-examined  by  Mr.  Morton, 

What  are  those  stamps  made  of? — ^They  are 
made  of  box. 

Do  you  Ktamp  a  letter  for  1759  with  the  same 
stamp  of  1761  ?— No,  we  do  not ;  we  use  every 
day  one,  and  they  last  no  longer  ;  sometimes, 
at  the  latter  end  of  the  day,  it  is  so  defaced  and 
clogged,  that  it  will  hardly  last  a  day  ;  and 
aHcr  they  have  been  used,  they  are  throuu 
into  a  drawer,  where  they  remain  five  or  six 
months,  and  then  we  bom  them. 

2B 


574]  27  GEORGE  11. 

Are  yon  sarethis  mark  of  the  charge  is  your 
mark  P — I  am  very  sure  it  is. 

Mr.  Bavif.  lias  BasiDgstoke  a  stamp  to  it? 
^-Ravenhill.  I  can*t  say  whether  it  has  or  no. 

Is  there  a  post- master  there? — ^There  is. 

Ha?e  not  all  post-masters  stamps?— I  can^t 
say  whether  they  have  or  not. 

Look  at  I  his,  and  see  if  there  is  a  post -mark 
upon  it.^l  see  very  plainly  there  is  a  mark ; 
hut  it  is  so  hhnil,  I  can't  distinguish  what  it  is. 

Js  it  a  mark  of  two  lines?—!  helieve  it  may 
be  a  post- mark  of  two  lines. 

Why  have  some  two  lines,  and  some  but 
one  ? — Those  of  two  lines  are  generally  where 
the  town's  name  is  a  long  one. 

Elizabeth  Edwardt  sworn. 

Edwards,  I  live  at  Brentford. 

Mr.  WilUs.  Look  at  that  old  woman,  and 
these  two  people  with  her. — Edtcardt,  I  see 
her,  and  her  daughter  and  son  ;  they  came  all 
three  into  my  house  ;  1  donH  know  the  day, 
but  we  had  a  neighbour's  child  christened  at 
the  time  they  were  there ;  [She  pro«luces  the 
copy  of  the  register]  This  is  a  true  copy  of  the 
register  of  the  child  when  it  was  christened ; 
Mr.  Gascoyne  went  himself  and  took  it  out  of 
the  book. 

Can  you  tell  by  any  other  circumstance  ? — 
No,  I  cannot. 

What  day  was  it  the  child  was  christened? — 
By  this  it  was  the  32d  day  of  January,  and  the 
old  woman  went  away  on  the  33d,  lieing  on  a 
Tuesday  ;  but  they  came  to  my  house  on  the 
Saturday  before. 

Do  you  keep  a  public- bouse  ? — No,  I  do 
not ;  1  keep  a  shop :  they  lodged  at  my  house : 
George  went  out  on  the  Sunday,  and  brought 
his  other  sister  to  our  house  ou  the  Monday, 
and  they  went  all  awny  together  on  the  Tues* 
day  morning  betimes  towards  London. 

What  did  they  call  the  other  sister's  name  ?-* 
I  have  forgot  what  be  called  her,  but  one  of 
them  he  called  Lucy. 

Was  that  she  that  he  brought  oo  the  Mon- 
day ? — No,  it  was  not. 

Are  you  sure  they  were  at  your  house 
at  that  time  ?— I  am  positive  they  were. 

Sutannah  Buricill  Bvrorn, 
5.  BurwilL   I  live  at  Brentford ;    the  last 
witness  is  my  mother ;    she  has  had  two  bus- 
bands,  which  is  the  reason  our  names  difter. 

Mr.  Gatcoyne,  Do  you  know  that  old  woman 
there  ? — S.  BurwilL  I  do :  1  never  saw  her 
before  she  came  to  my  mother's.  I  know 
them  all  three ;  they  all  came  together  on  a 
Saturday  night,  the  20ih  of  January;  they 
asked  for  lodging,  and  said  they  were  recom- 
mcndcil  by  a  friend  of  my  mother's,  and  my 
mother  let  them  lie  there:  on  the  Sunday  the 
Ola  gentlewoman  and  her  daughter  stayed 
tbera,  and  the  son  went  to  London,  and  did  not 
ynae  home  till  the  Monday,  and  then  he 
•wjpt  a  sbter  (as  be  called  her)  with  him. 
Wl»t  iinie  did  he  Murn  P— I  can't  tdl  the 
7»  iiwMfoiiMiiiMoftlitilay. 


Trial  of  Elizabeth  Canningy 


[372 


Did  they  lie  there  on  Monday  night? — ^They 
flid,  Sir,  and  went  all  four  of  them  away  on  the 
Tuesday  morning. 

1>id  they  say  where  they  were  going?— 
They  said  they   were   going  to  Epping  in 

Can  you  tell  what  lime  they  went  away  P— 
i  really  cannot ;  they  went  away  some  time  in 
the  morning. 

[Cross-examined.] 

Mr.  Nare$,  Had  yon  ever  seen  them  be- 
fore ?— 5.  Buraill.  No,  I  never  had  to  my 
knowledge. 

William  Tredget  sworn. 

Tredgel.  I  live  at  Tottenham,  at  the  Sefca 
Sisters,  the  sign  of  the  Two  Brewers. 

Mr.  Davy.  How  far  is  that  from  London?— 
Tredget.  It  is  four  miles. 

How  many  miles  is  it  from  Enfield- Wash  P^ 
I  cannot  justly  tell :    I  know  the  place. 

Look  at  those  three  people, — that  old  woman, 
anil  the  daughter  and  son.— I  remember  tbi 
aid  woman  very  well,  and  the  daoghter  and 
^fion  too. 

Where  did  you  see  them  ?— I  saw  them  al 
Tottenham  on  the  S3d  of  January,  which  wai 
on  a  Tuesday  :  I  am  sure  to  the  day  and  the 
people. 

Where  did  they  say  they  came  from?-- 
They  said  they  came  from  Brentford. 

Did  they  lie  at  your  house?— No  ;  tfaejdid 
not ;  I  told  them  1  had  no  lodging,  and  directed 
them  over  the  way  to  a  farm-house,  one  Mr 
Fbilips's;  but  cannot  say  whether  they  laji 
iliere  or  not. 

What  time  of  the  day  did  th^y  call  at  yom 
house  ? — It  might  be  about  four  ;  it  was  a 
little  before  candle- lighting. 

Had  you  ever  seen  them  before  ? — I  cannol 
E^y  I  ever  did,  unless  it  was  the  old  gentle- 
ivijman  ;  1  believe  I  had  seen  her  about  threi 
years  before ;  I  had  taken  notice  of  her  ftuse 
tiiatshe  was  a  woman  not  common  to  be  seen, 
th«2  last  time. 

Had  you  taken  notice  of  her  face  before  thai 
liroe?-- ^No. 

When  vou  saw  her  upon  the  33d  of  Ja- 
nuary, did  you  recollect  that  you  had  seen  bei 
before?— No ;  but  when  they  came  to  ask  dm 
in  come  and  see  her  in  Newgate,  then  1  recol« 
lected  that  it  was  the  face  I  had  teen  threi 
years  before. 

Do  you  now  sav,  upon  your  oath,  that  thesi 
are  the  very  people  whom  you  saw  upon  Um 
'23d  of  January  1*— It  is  the  very  same  woman; 
I  ^aw  her  then  at  Pasre- Green;  then  her  aoi 
niid  daughter  were  viiih  her,  but  not  when  ! 
biiw  her  before,  as  I  know  of. 

[Cross-examined.] 

Mr.  miliami.    How  many  people  did  yoi 
■ee  at  Page-Green,  that  asked  for  lodging  m 
ibu  33d  of  January  ?—  W.  TVecfee^.  I  saw  aon 
but  the  old  woman,  Gtorge,  and  Lucy* 
3 


SJS} 


for  Wilfid  and  Corrupt  Prrjurtf. 


A.  D.  1754. 


[374 


Mary  Trtdget  sworn. 


31,  TftdMi.    I  am  wife  \o  the  lost  witness 


•t  Page- Greco;  I 


the  oM  1 


* J gyi*^y 

^my^hoikle  on  Tnesilay  the  33t!  of  January  ; 
tlie:ukrd  n«  for  loJgin^s  ;  1  Uitl  not  let  tbeni 
%tft  my,  iKit  recommended  lliein  to  a  t'lirm- 
bo^«e  oler  ibe  way. 

Mr,  U^W/tf-  \Vliatis  the  fAmier'i  ntmo?^- 
U,  Trtdgei.  HiJs  name  is  Philips. 

Ir.  Dirty*  My  lonl,  we  have  now  gfone 
^^.pcigh  the  proof  of  the  aiibi  of  9iUry  J^quires*, 
iBil  brtwghl  her  to  Piij^e-Grecn,  within  two 
c»rthni!mi!<?sofEnne»d-VVash!  we  will  leave 
lier  thepresent,  and  proceed  to  ano- 

l|», ,  iijr  cose,  which  goes  in  coutradic- 

IbntoUtc  whole  of  the  defendant*!  evidence: 
wt  iWW  iherefore  cftH  witnesses  to  prove,  that 
-^  Uf>n  before  Mr.  Alderman Chttly,  «»n 

nnniiry,  differed  in  many  instances 
inai  sh<?  4WoVe  alterwards ;  and  that  she 

liHrvl  i|af«  a  false  desrriplion  of  the  place  she 

nudftto  ha»e  beeii  confined  in,  and  varied 
w  Mipry  aftpf  »be  had   been   carrieil   to 
T^Ui't  bon****  :•«  Fi.ru>ld-WaHb.  on  the  Ul  of 
*  give  your  lordship  and 
ijitry  a  111  j.nun  of  this  Buppoiied  pri- 

pm,  and  <^'  what  linppened  there  on  i lie  1st  of 
Pfbmary*     We  l»ec  leave  first  to  examine  Mr, 
AMmftan  Chilty;~bul  1  must  let  the  gentle 
nm  eoneeroed  for  the  defenJant  know  the 
of  llie  witnesses  we  intend  to  call  to  this 


piH«f  i»mr  case,  that  ihey  may  als<»  l*e  exa< 
mf^aruaratety  ;  Mr.  Chitty,  Mr.  Nash,  Mr. 
IU|ae,  Mr.  Aldridge.and  VVdliani  White. 


Wednesday^  Mat/  1. 

Alderman  Ckittj/  tworn- 

Ifr,  Gof<-<?v»»^*  Bej»lea«ed,  Sir,  to  give  an 
anofii  "t  «^i<^t  passed  befot-e  you  on  the  31  at 
^kiy  '',  reialing  to    Klizubelli  Cun- 

IB^,^  ui  ChUty,     I    wn-*   the  aitliiig 

•Utrinan  at  that  time ;  eilxabeth  Canning:  waa 
\mnzU  before  me,  but  as  it  b  about  a  year 
I,  1  cannot  jrive  a  distinct  account 
.  iDf  mhrr  it  waa  on  the  3 1st  of  Ja- 
fiU4fy,  ifciKKit  half  ai»  hour  afK-r  twetvtf»  or  one 
•'<li>ck.  Mr.  Lyon  and  another  person  (l  be- 
We  it  waa  Mr.  Na«l.)  came  to  me.  There 
Wf«  a  few  oalea  takeu  for  my  own  mcmoran- 
Ittia,  *ibich  I  beheve  ar*?  in  coud,  which  are 
lilt  lutiatanee  of  what  passed. 

Wrre  they  signed  by  her  ?— Mo ;  1  took  »t 
an  paper,  a«  I  i^eneraily  do;  but  not  thin  kinif 
ttw^uUI  have  ken  the  Bubject  of  so  much  in- 
^«iry,   I  did  not  lake  ii  vi  ilisaioot  aa  1  coutd 

Wiali       (]\t  iiiodiji>;n  a  i*.it"<  i) 

It  '—It  is;  this  is 

Aot  V  ^me,  but  what  1 

taiti  \m\wi  1  took  thenofher'a, 

tDii  u«t  were  brought  before  me. 

1 ,  I  he  substance  of  that  account  of 

kir.  —it  if. 


Hr.  Oa$coync.    Vo«  may  refreali  your  me- 


mory by  looking  on  W,  and  give  the  Court  an 
accanot  of  it ;  you  may  read  it. 

Hr  readi  :    *  A  Copy  of  the  l^linutes  taken 
<  by  Thomas  Ohttty,  upon  the  Examination  of 

*  Elizabeth  Canninsr,  at  Justice- room,  Uattd- 

*  hall*  January  31,  1753. 

'  Elizabeth  Cannin{jr   swore,    that  on  lasKj 

*  New-year's  day,  as  she  was  reluruinif  from  ! 

*  her  unde's,   a^b^iut  Siltpeirc-Bauk,    as  sh«1 

*  came  alon^  by  the  dead  whII  a;^atnst  Bedlam,  i 

*  in  Monrfithls,  about  or  near  ten  o'clock  at ' 
»  nitirhl,  she  was  met  by  two  men,  who  stripped] 

*  her,  and  robbeJ  tier  of  half-a^guinea,  ihrci.j 

*  shillings^  and  a  halfpenny.^ 

Mr,  Davy,     Are  yoti  ture  she  said  a  half- 
penny ? 

Alderman  Chitty.  I  am  sure  she  did;  alsa^ 
her  gown  from  her  back.  (Now  I  would  ob- 
serve, liere  I  asketl  her.  What  else  ?  she  said, 
a  hot ;  she  said  it  was  a  straw  or  chip  hat ;  I 
did  not  put  that  down,  but  1  a^s  well  remember 
il  as  if  it  was  but  yesterday.)     She  said,  *  A 

*  hat  from  her  head^;  slie  alrangleLl  and  made 

*  a  noise;  one  stopped  her  mouth  with  souie- 

*  thing  like  a  handkerchief;  and  «\vorc,  if  she 

*  made  any  noise  or  resistance,  tl»ey  wi»u!d  kill 

*  her»  anil  then  hit  her  a  blow  over  the  head, 

*  and  stunned  her,  and   forced  her  along  Bi- 

*  shop^gale  street,  each  holdin*^  her  up  under 

*  her  arms  ;  but  did  not  remember  any  thing 

*  mnre  thui  passed,  and  did  not  come  to  herself 

*  till   about  hah'  an  hour  before   she  came  10 

*  Enfield- Wash,  us  she  hail  leirned  since,  td 
«  Wells's  boQv.?  there,  and  there  were  several 

*  per-^ons  in  the  room  ;  they  said,  she  must  do 

*  as  ihey  did,  and  if  so,  she  shuohJ  have  fine 

*  clothes,  «cc.     «he  said,  she  would  mi,  but 
»  would  go  home,  and  refused  compliance;  and 

*  then  a  woman  forced  her  up  stairs  into  a  room, 

*  and,   with  a  lase  knifL-  she  bad   m  her  hand, 
»  cut  tlie  lacr  of  her  siuys,  and  took  her  stay* 

*  away,  and  lobl  her  there  was  bread  and  water 
t  in  ihe  said  routn,  and  il  *.he  made  any  noise, 

*  she  would  come  in  immediately  and  cut  her 

<  throat ;  then  went  out,  and  locked  the  door  ; 

*  and  never  saw  her  nor  any  one  of  the  m  since, 

*  til)   after  her  escape;    which   bread  was  in 

*  quautity  about    a  quarter  of  a  peck  loaf  10 

*  pieces*  and  ihree  4|uarteni  of  a  gallon  of  water, 

*  or  a  iittle  more,  in  a  pitcher,  as  she  supposed  ; 

*  on  which  only  she  suh^i^tt•d,  aud  one  penny 
'  mince- pyc  (*he  had  in  her  iiocket,  till  sIh*  yot 

*  away,  which  was  on  ihe  "29th  of  Jnnuiiry, 
»  about  half  an  hour  afler  three  o*clock  or  four 

<  in  the  afternoon*  anil  then  made  the  best  uf 
»  her  way  to  town  to  her  molhei  's,  at  the  bottofti 
»  of  Aldermanbury.     She  turther  said,  on  in» 

*  nuiry,  she  had  no  ntool  all  that  tune,  only 

*  made  a  httle  water;  and  *rud.  there  was  au 

*  ohl  ^to^l  or  two,  an  old  tabU,  and  an  old  pic- 
Mure  over  the  chimney,  twi>  vwudowa  m  ihe 

*  room,  one  fastened  up  with  bonnU,  the  other, 

*  part  ditto  ntid  part  ^\as%,  in  v%hich  huter  she 

*  made  a  hole  by  removing  a  pane,  and  forced 
«  part  open,  and  got  out  on  a  ainall  shed  of 

*  Uarda  or  peuthouie,  aUd  ao  slid  down  wd 


27  GEORGE  IL 


•  jnnif«et!  on  tbe  siitf  of  a  bank  ou  the  tmckside 

•  off  liie  house,  ftnil  so  t;oi  into  t lie  road,   and 

*  procf'OtleU  lo  (»er  mgUitr's  that  niglil*  whicli 
*'  Mh^  ikliOtii  leu  o^clucb.     Her  muiher  sM  she 

*  WAi  raintt    t^o  she  gol  Ijcr  some  nine  and 

*  wutctp  but  it  itniild  iiut  ^  dawn,  the  (lassaj^e^ 
'  bring  svit:lled,  therefme  sent  li»  the  apnlhe* 

*  CJiry  for  advice.    Blr.  Lyon,  her  ruAstrr,  g»vc 

•  her  nn  i!Kc«t ding  good  chaiacler,  nnJ  so  did 
'  licr  kie  m(i&ler«  Mr,  Wiuikbury.'  There 
were  a  great  many  queslions  asked  her,  *khich 
mra  not  d(twu  liere.  There  fvas  an  cAamioaliDn 
lor  J  lielic^e  near  an  hour;  and  atter  1  h»d 
examined  her,  1  sent  for  Vldcrnian  Fhulyer ; 
but  he  did  not  cbu^e  to  examine  her,  and  put 
berofer  to  the  sitting  alderinau,  vkhich  hap- 
pt*ned  to  be  my  turn. 

Mr.  Gascoync  Duriuy  the  lime  of  this  ex- 
anilnritum^  *[u\  die  mention  any  hay? — Aid* 
Cf  .   there  ua*  nothing"  iu   the 

lOur  I  gs  she  had  raentimjed  ;  not 

one  mile  ot  hay,  neither  do  1  retneiober  what 
she  stijd  abe  lay  upon. 

Did  »he  descrifje  any  gTVps^yi  or  any  re* 
markaMe  wotnan  ? — 1  asked  her,  whether  she 
fthmdd  know  the  ^roman  again?  she  said,  she 
behe^ed  she  hhouid ;  hut  she  did  not  make 
nienllon  of  any  extraordinary  wuaiuu  doinij  ibis. 

I>id  she  say  when  she  drank  atl  hei  ^^ater? 
— Slie  taid^  u  Httlc  Mfater  was  Ml  when  she 
made  her  escape*  \  :usked  her,  whether  she 
liiiew  what  the  quantity  of  a  quartern  loaf  was? 
ahe  said,  she  did,  for  her  tiinum'  master  kept  n 
publfo-bonse ;  1  asked  her.  \\im\  sorl  of  bread 
this  was?  she  said,  there  \»cre  four  or  fife 
|)ieee8,  ia  the  <}aantiiy  of  a  qoartern  loaf. 

Arc  you  sure  she  staid  four  or  five  ]»iec€a? — 
1  tm  sure  she  said  four  or  five,  or  tive  or  six 
pieces. 

Mr*  l>(sry.  Did  she  menttoo  any  such  thing 
«s  ft  tohacco-mould,  a  ba&on,  a  saddle,  hay, 
or  a  barrel?— Aid.  Cfuttif,  I  heard  of  no  such 
tbitigs:  she  said,  there  was  nothing  in  the 
room  but  what  things  she  had  luetitioned :  she  ^ 
apprehended  tht^n,  it  mi^hl  be  the  woman  of 
the  \\m\%G  that  bad  served  her  thus  ;  but  it  ap- 
peal s,  as  it  comes  out,  shp  had  no  notion  who 
that  noman  was,  f  a^kt^l  her,  whether  or  no 
ahe  had  seen  any  hody  m  all  that  ttme?  8hes.-ird, 
she  had  not  but  once ;  s!»e  limktd  through  the 
key -hole,  and  saw  some  one  person  pass  be- 
low. 

Mr  Oaicoyne  riease  to  look  at  tliis  paper. 
—Aid.  Chti'iy,  This  is  my  liaod-wiiting;  a  is 
my  warrant  for  the  apprehending  the  people 
tbat  she  chared. 

Did  she  mentioQ  the  name  of  WelK  orlwhoae 
house  she  had  been  at  T — ^I  was  a  little  ud> 
willinsTr  at  this  cjctrsordinarv  account,  to  graut 

•  warfaot:  t  said  to  b«r,  Be  lure  what  you 
«y  f  ««?  nothing  but  what  joo  can  swear  to : 
and  as  she  swore  all  to  be  true,  tipon  this  infor- 
toation  I  ((ranted  her  a  warrant,  but  told  her  1 
could  not  btliei-e  the  story  she  had  told  me. 

Do  you  recollect  wht  ihcr,  in  the  time  she 
was  in  coafinement,  sha  be«rd  any  thing  by 
wiiich  she  cuuld  diacof  er  the  otmes  of  any  of 


Trial  of  Elizabeth  Canniftg^  [M 

the  people  ?— The  uame  of  VV*Ua  wa«  ool  i 
tioned  at  all  hy  her. 

How  c^amc  you  to  p-anta  warrant  in  ^ 
lar  against  WelU? — Uecau^e  they  bad  U 
the  name  since  of  the  keeper  of  tbe  btioieiiirf  ' 
that  they  supposed  to  l>e  tbis  Wells, 

Were  there  any  partieutar  features  descfibfil 
of  the  person  ?**-No. 

Who  meniioned  the  name  of  Wells,  as  Can* 
tiing  never  mentioned  thut  name  i*— 1  raomit 
reaiemUer  that :  it  was  iiienlioutd,  iuoUHnr 
Wells  was  the  occupier  4*f  thu  ht>Uft«» 

Was  one  Scarrat  thei-^^  ? — Thcra  were  MUm 
(ifty  pcofdc  iberr ;  1  did  n^(  know  tKem* 

Durtnt;  this  exatuiiiaticm,  did  lUie  mealiaa 
.iny  fit  she  liad .^—1  doiiH  lemeinbcr  slu'  di4, 
but  the  mother  did  ;  Uie  said«  she  had  becu  ii4il^ 
ject  lo  fits  from  her  iulujicy. 

Did  she  say  she  went  down  Diabopagilt* 
street?— ^be  did,  between  two  men^  one  bdd 
under  one  arm,  and  the  ulher  under  the  oil 
but  &aid,  how  she  cime  there,  she  coi 
tell ;  that  she  was  uoi  so  far  stunned,  but  j 
she  knew  a  little,  as  »\i^  went  along  ihut  part; 
hut  bow  she  went   aiterwtrda,   febe    did  ooi 
know ;  she  said,  she  might  hav'e  beeti  put  it 
tk^nne  hi»use»  for  what  she  koew^  but  fehc  cvMiid 
not  tell  that. 

Mr.  Giiicpyne,  Previous  to  ibis  exam inati^a, 
had  you  aeen  any  advertisement  lu  tbe  pafM 
of  the  (3tb  of  January,  whk'h  gave  an  acoMit 
of  »  youQg  woman  taken  out  of  n  baeiuiif 
coach? 

Mr.  Mortotu    That  is  not  a  propv  quealte 

The  Warrant  read. 


eotWt 

oiiMB 


*  To  all  constables  and  other  peace- officm. 

*'  London,  to  wit,  Tiiese  are  in  his  majei' 
*■  ty*s  name  to  command  \ou,  and  every  on««f 
'  ynu,  upon  sight  liereof^  to  take  and  briiij^br* 

*  fore  me,  or  some  other  of  his  ma^est)  \  }\xh 

*  tices  of  the  peace,  the  body  ol   a  p<-r***a  ibst 

*  poes  hy  the  name  of  mother  Welk,  at  EioiM' 

*  Wash,' ill  the  county  of  Middlesex,^ — 

{A  Juryman.  Who  put  that  name  in  the  wir- 
rant,or  who  ^ve  the  name  ? 

k\t\,  ChUty,  1  cannot  recollect  who  mrtJ* 
lioned  the  name  Wells:  I  apprehend  ihc-ybiJ 
got  that  name  before  they  aunc  to  the  jusiict' 
roofti :  I  asked  the  girl,  wheihtar  that  wai  the 
tntstre«s  of  the  house  or  no?  she  said,  ^ 
could  tell  noihiog  of  the  woman's  name. 

The  Conctmwn  qf  ike  Warrmni*'\ 
■  of  whom  yon  shall  have  notice,  to  antwer  10 
«  such  things  thai  shall  be  alled^^^d  against  bft 

*  by  EHicabtth  Canning,  ^»r  violently  tisault' 

*  mg  her.  and  robbing  her  of  a  n«{r  bf  Mtyti 

*  aiM  €on6ning  her  m  a  room  in  tViesaid  boili^ti 
<  and  keenitig  her  en  bread  and  water  for  up' 

*  wards  or  tbrM  weeks,  as  oath  has  been  ma<N 

*  before  nr»e,  Thomas  Chittv." 

«  Jan.  31,  irSS/ 

Gamen  Nmk  sworn, 
AasA.    I  bekMig  to  Goldsmitlis^Half, 
keep  a  ixi^*bowe  in  Gutter- lane.    On 


377] 


finr  Wilful  and  Corrupt  Perjury. 


A.  D.  1754. 


[378 


Slst  of  JaDuary  1753,  1  went  to  Mr.  Lyon's 
house  in  Aldermanbury ;  he  is  a  particular  ac- 
quaintance of  mine,  and  has  been  some  years ; 
there  was  be  and  his  wife.  I  asked  them,  whe- 
ther that  paragraph  in  the  paper,  about  their 
ifmot*s  comin||r  home  in  such  a  condition, 
was  true  ?  he  told  me  it  was.' 

Nr.  jyavif.  Were  you  present  in  the  justice- 
moiD,  when  the  defendant  was  there  before  Mr. 
Alilcrman  Chitty  P — Nask,  I  was,  as  a  friend 
tjtbis  girl ;  the  city -marshal's  man  ivas  there : 
I  au  there  a  little  before  the  others  ;  I  asked 
leive  to  let  the  room  be  cleared,  there  being 
mmy  people  in  the  room :  I  had  nerer  seen  the 

Still  that  day ;  but  had  compassion  for  her 
D  the  account  I  had  beard  of  her  bard 


■X 


I  Mr.  Adamton  there? — 1  think  he  was. 

Was  Mr.  Scarrat  there? — I  do  not  know 
whether  he  was  or  itot.  The  girl  ga?e  an  ac- 
eoQiisf  Ibe  place  where  she  had  b^n  in :  Mr. 
AUcrsaD  Chitty  asked  her,  (how  it  misjrht  slip 
his  moMrj,  1  cannot  tell)  what  sort  of  a  room 
the  baid  ben  con6ned  in  ?  her  answer  was,  that 
it  was  •  linle,  square,  darki&h  or  dark  room, 
with  baardt  sailed  up  before  the  windows. 

Are  you  sure  the  words  *  little' and  '  square' 
were  mcntioiied  ? — 1  am  sure  of  it,  I  remember 
it  rerv  well. 

Did  ahe  say  windows  in  the  plural  number  ? 
-She  did ;  she  said,  through  the  cracks  of  the 
kardt  the  could  see  the  Hertfordshire  coach 
IMS  by  opoQ  the  road,  that  had  used  to  carry 
Mr  niitrefls.  Upon  being  asked  what  was  in 
the  raom  ?  she  said,  there  was  an  old  broken 
Nod  or  a  chair,  and  in  the  chimney  an  old  iron 
grste,  and  a  few  old  pictures  hung  over  the 
ckifflaev. 

Hr.  Moreton.  Did  you  take  this  in  writing  ? — 
Xul.  No,  [  nerer  did :  upon  being  asked  what 
At,Kay  upon,  I  remember  very  well  she  said,  she 
by  w  the  boards ;  which  melted  my  heart  in- 
W:  1  felt  an  inwanl  affection  for  the  girl, 
^  recollecting  it  was  cold  weather  at  that 
te;  f(f  I  think  we  had  a  good  deal  of  frost 
ttlbat  time. 

Mr.  Davy,  Have  you  heard  what  Uie  alder- 
Baa  said  in  his  evidence  ? — Nash,   f  have. 

What  did  she  say  about  bread  in  the  room, 
ud  bow  many  pieces  were  there? — She  said, 
thire  was  about  the  value  of  a  quartern  loaf 
AfowB  abont  the  room  in  crusts,  which  were 
Mm  and  mouldy ;  the  number  of  pieces  1  do 
Mt  remember  ane  said. 

Do  you  remember  she  said  she  slid  down  a 
peal-hoQse  ? — I  do  not ;  she  said,  she  pulled 
^0  one  of  the  boards  of  the  window,  after 
■be  bad  strove  at  it  many  times ;  and  in  getting 
OQl  at  the  window,  she  tore  her  ear  by  a  nail 
ky  the  side  of  the  window  in  turning  herself 
tboot ;  and  her  mother  standing  by,  said,  her 
Mr  was  then  Moody ;  her  ear  then  seemed  to 
k  veiy  sore.  There  was  a  warrant  granted 
>po&  this  against  one  Wells.  The  alderman 
Mes  not  remember  wbat  it  was  that  induced 
^  tn  grant  it  against  her  in  particular :  I 
"Mllcct  It,  becaue  it  wis  in  a  paragraph  in 


the  news-paper,  that  she  had  been  at  the  house 
of  mother  Wells  at  Enfield- Wash. 

What  charge  was  there  before  the  alderman 
against  mother  Wells  ?  for  he  could  not  grant 
a  warrant  by  information  from  the  news-paper. 
— 1  recollect  she  was  asked  where  she  had  been, 
and  that  she,  or  somebody  else,  said  she  had 
been  at  the  house  of  mother  Wells,  at  Enfield- 
Wash. 

Recollect,  if  you  can,  whether  it  was  she,  or 
another  person,  w  ho  said  so. — Upon  my  word, 
I  cannot  positively  tell  which  ;  but  it  was  re- 
peated aloud,  that  she  had  been  at  the  house  of 
mother  Wells  (that  is  a  notorious  bad  woman) ; 
she  being  asked  how  she  came  to  know  she  had 
been  at  n>othcr  Wells's,  she  said,  she  bad  heard 
her  called  so  while  she  was  under  confinement 
in  the  rooAi. 

Did  she  descrilie  any  person  she  saw  in 
the  honse? — ^There  were  no  particular  descrip- 
tions given  by  her  of  any  one  person  in  tne 
bouse. 

Was  the  name  of  Virtna  Hall  mentioned 
then  ? — I  never  beard  it  indeed  before  the 
alderman. 

Do  you  remember  any  other  particulars  of 
the  description  of  the  room,  or  any  other  cir- 
cumstances ? — I  do  not  recollect  any  other  de- 
scription than  1  have  hitherto  told  :  upon  thit 
a  warrant  was  granted. 

Did  yon,  upon  that,  go  down  with  any  per- 
sons to  Enfield- Wash,  and  when,  in  order  to 
apprehend  the  people,  or  see  the  house  ? — I 
really  can't  recollect  whether  Mr.  Lyon  took 
the  warrant  out  of  the  clerk's  hand  or  I,  but  we 
went  on  cheek-by-jowl  to  the  Hall-yard;  I 
know  Mr.  Lyon  paid  the  shilling  for  the  war-  . 
rant :  when  we  were  in  the  yard,  we  were  con- 
sulting what  to  do  in  this  affair  ;  fearing  it 
should  gather  wind  in  the  country,  and  the 
people  all  ffet  away  before  we  got  down  there. 
Upon  this,  mr.  Lyon  and  I  being  very  intimate, 
went  home  to  my  house ;  my  wife  was  very 
unwilling  1  should  lie  out  of  town  that  niglit, 
otherwise  we  had  gone  down  immediately,  to 
have  apprehended  the  people  that  night.  We 
agreed  to  go  the  next  morning  in  a  coach,  and 
he  asked  me  to  take  a  frieud  or  two,  which  I 
did ;  they  were  Mr.  Edward  Aldridge  and  Mr. 
John  Hague.  We  went  (this  was  on  the  Ist  of 
February)  at  our  own  expence,  and  took  coach 
in  Chiswell-street,  and  desired  the  coachman  to 
proceed  as  fast  as  he  could,  fearing  we  should 
miss  what  we  aimed  at.  When  we  came  to 
about  Bounds -field,  somewhere  by  Ponder's- 
End,  we  had  several  people  met  us,  riding 
as  hard  as  they  could,  to  give  us  intelligence 
that  they  had  seized  all  the  people  in  the 
house. 

As  you  had  heard  the  defendant  give  a  de- 
cription  of  the  room,  did  ^ou  mention  that  to 
Mr.  Hague  and  Mr.  Aldridge?—!  told  them 
what  I  had  heard. 

At  the  time  you  were  going  down  with  them, 
did  you  declare  any  intention  you  had  to  take  a 
survey  of  the  place,  and  see  whether  it  an- 
swered her  description?—!  can't  tdl  whether 


379]  27  GEORGE  II. 

I  said  so,  but  it  was  my  intention  so  to  do,  [and 
to  sc .  the  warrant  executed. 

What  time  did  you  arrive  there  ? — I  cuess  it 
was  about  eleven  o'clock,  which  was  about  an 
hour  before  Elizabeth  Canning  came  there  : 
the  coachman  drove  us  up  to  the  Sun  and 
Punch-Bowl,  almost  opposite  to  mother  Wells's 
bouse  ;  there  were  people,  some  on  horsej^ck, 
and  some  on  foot,  all  in  an  uproar.  Mr.  Hague, 
,Mr.  Lyon,  and  Mr.  Aldridc^e  went  into  the 
house.  I  nushed  over  to  thelious^,  in  order  to 
find  if  the  aescription  of  the  room  answered :  I 
saw  some  people  in  the  room  on  ray  left  hand, 
which  they  call  the  parlour ;  then  I  went  up 
the  stair- case  leading  from  the  great  door  that 
comes  into  )he  street,  and,  to  my  great  sur- 
prise, I  looked  about  the  three  rooms,  and  found 
nothing  there  like  it ;  there  were  beds  iu  them, 
which  seemed  to  have  been  laid  in  that  night ; 
then  I  came  down  again,  and  went  into  the 
kitchen,  and  saw  a  roan  with  a  broom-stick  in 
bis  hand ;  I  said  to  him,  Friend,  do  you  know 
any  thing  of  this  house  ?  he  said,  there  is  a 
room  here :  he  unbuttoned  a  button,  and 
opened  the  door  ;  I  saw  a  door  on  each  side, 
one  opened  to  a  cellar  full  of  water,  another 
opened  to  a  place,  like  an  oven,  and  the  other 
led  me  to  a  place  where  were  a  few  steps  or 
stairs,  which  led  up  into  this  hay-loft,  a  nasty 
room  :  1  have  since  told  the  steps  ;  I  think 
there  were  eight  of  them ;  i  am  sure  there 
was  nothing  liKe  her  description  there  at  that 
time.  I  cannot  say  I  observed  the  key-hole, 
but  1  was'  therealiout  afterwards,  and  believe 
there  has  not  been  a  lock  upon  that  door  for 
many  vears;  there  were  no  signs  where  a  lock 
could  have  been  placed  ;  1  saw  no  marks  of  a 
lock  fastened  thereon ;  I  am  sure  there  had 
been  no  lock  there ;  neither  was  there  any 
bolt ;  there  was  a  large  bar  that  secured  the 
three  doors. 

Are  the  steps  without  or  within  side  the  door  f 
— ^They  are  on  the  inside  the  door  ;  the  stairs 
are  part  of  the  room. 

Can  you  mention  the  exact  length  and 
breadth  of  the  room  ? — 1  never  measured  it ; 
it  is  a  very  long  room ;  you  may  as  well  call 
this  table  a  square  [meaning  a  long  table  in 
the  sessions -house  ;J  that  roan  and  1  went  up 
into  it  by  ourselves. 

Did  you  take  any  particular  notice  of  what 
things  were  in  the  room  ? — At  that  time  I  cannot 
say  I  did,  because  I  had  not  found  out  the  room 
according  to  the  girl's  description.  I  came 
down,  and  saw  Mr.  White,  one  of  my  lord- 
mayor's  marshal -men,  who  went  down  to 
execute  the  warrant :  1  said  to  him,  for  God^s 
sake,  what  do  you  think  of  this  affair  ?  he  said, 
he  believed  we  were  got  into  the  wrong  box, 
and  be  believed  the  girl  had  never  been  there : 
then  I  went  over  to  my  companions  that  came 
down  along  with  me ;  tliis  was  before  Can- 
ning came.  We  went  over  to  the  bouse 
•gain  ;  we  went  up  into  this  room :  some  per- 
•ODS,  I  cannot  tell  who,  said,  this  .must  be  the 
room ;  Mr.  Lyon  stood  near  me ;  said  I, 
tbit  cannot  be  the  room  according  to  ber  de- 


Trial  itfEUtabelh  Cannings 


[SSO 


scription,  for  she  said  it  was  an  empty,  dark 
room  ;  Mr.  Lyon  said,  these  things  may  have 
been  put  here  since :  there  were  numbers  of 
thiii^^s  then  in  it. 

Mention  the  things  you  saw  there  P — ^Tliert 
was  to  the  quantity  of  half  a  load  of  hay  \  an 
old  nest  of  drawers,  about  four  feet  long,  and 
three  high ;  there  was  a  high  tub  with  pol- 
lard in  it:  two  side-saddles,  and  an  old 
man*s  saddle :  on  my  right  hand  coming  up 
stairs,  there  seemed  to  be  a  place  as  if  some 
poor  |>eople  had  laid  upon  it ;  it  was  some 
part  bay  that  was  taken  from  the  heap,  and 
some  wool  put  into  a  sack  for,  a  bolster,  made 
up  in  the  form  of  a  bed:  'over  this  nasty 
bed  (if  I  may  so  call  it)  were  some  pnllics 
and  a  line  belonging  to  a  iack ;  and  at  the 
head  of  this  bed  was  a  hole,  through  which, 
it  seems,  formerly  the  line  did  run,  that  bad 
some  hay  stuffed ^n  it  to. keep  out  the  wind; 
I  took  it  out;  it  was  a  long  square,  ajiout 
six  by  eight  inches;  there  is  a  jack  in  the 
kitchen,  to  which  the  line  had  been  fastened; 
the  hole  looks  directly  into  the  kitchen ;  it  is 
a  very  thin  partition;  it  is  lath  and  plaister: 
through  that  hole  might  be  seen  every  thing 
in  the  kitchen,  except  just  under  it;  ana 
there  was  a  window  in  the  kitchen,  which  looks 
out  into  the  road,  and  from  that  hay-loft  a  per- 
son might  see  through  that  window  cross  the 
road. 

Could  yon,  when  standing  in  the  kitchen, 
see  through  into  that  room  ? — You  might  see 
the  window  that  fronts  the  kitchen,  through 
the  hole. 

How  high  is  the  hole  from  the  floor 'of  the 
kitchen  ? — I  believe  it  might  be  about  seven  or 
eight  feet,  to  look  through  from  the  kitchen ; 
a  person  might  elevate  himself,  or  look  up- 
wards ;  and  when  in  the  room,  the  hole  is 
about  five  or  six  inches  above  the  pillow  of  ihb 
hay -bed,  which  was  made  on  the  floor.  la 
this  room  was  a  chimney,  which  I  apprehended 
wa«  for  the  warming  a  glue- pot ;  and  over  this 
place  was  a  little  ledge,  upon  which  stood  aa 
old  iron  casement  all  dusty ;  the^^bimnej 
stands  in  the  corner  of  the  room  ;  as  near  as  I 
can  think,  it  is  to  the  south  ;  there  was  cob- 
webs and  nastiness  upon  the  things ;  it  is  im- 
possible they  should  have  been  newly  pot 
there. 

Were  there  any  cobwebs  on  the  casement  ?•<« 
There  were;  they  seemed  to  fix  the  casement 
to  the  chimney-le<!ge ;  it  hud  such  an  appear- 
ance te  roe,  I  did  not  move  it ;  it  was  all  over 
cobwebs,  and  seemed  to  lie  soldered  to  the  wall 
with  them  ;  I  did  not  move  it. 

Was  there  any  grate  in  the  chimney  ?— No, 
there  was  not ;  it  appeared  to  me  as  if  there 
never  had  been  any. 

Was  there  a  hearth  to  the  chimney? — I 
think  there  was  not. 

Was  the  hearth-place,  I  mean  the  floor  of 
the  chimney,  covered  with  dustf — At  that 
time  1  did  not  particularly  observe  whether  ft 
was  or  no. 

Was  there  any  appearance  to  you  of ^anj 


t6i] 


Jbr  Wilful  and  Corrupt  Perjury, 


A.  D.  175^. 


[3SJ 


E'jlures  hnviitgf  been  over  the  chimney  ? — I 
liefe  there  nerer  ii^as  a  pi  dure  hunj/  up  in 
tbat  niom  in  tliis  worlif. 
Did  you  observe  ilie  window  at  the  north 
irf  of  the  rr*om  ? — 1  did;  (hat  ivmdow  wa% 
iiiW  up  witli  ^Kianh,  mid  tfie  muiiUim  was 
lelwixt ;  there  were  two  uiniloMf;  in  llie  rotuii, 
at  the  end,  ftud  Iheutlipr  almo^it  faem^lhe 
goinif  up  out  ot  i\w  kuvhi'n ;  the 
vii4ow  ai  the  end  seemed  to  UAtt^  likid  a  lit^-hl  ^ 
Ihl  casement  was  whote,  with  the  boards 
mM  (J|)  upon  tiie  top,  ai»d  buanU  nailed  to 
lit mniitaais,  aud  the  ^'lass  cai^ement  shut. 

Khat  iji)  you  (tieau  by  a  tDtiiitiiii]  ?— It  is 
tb«fii|i;  -Sit  ihat  tbfiilesi  tUe  *viiHh>w  in  bulves: 
Iht*  M  •■  ni  sjiif*  %v;i<  bdtirded  ii|j,  and  the 
wan  s{[1hbs  ;  ihe  which  casemeul 
'  Uie  Hertliinl  mail,  niih  u  pond  at 
irie*'nn  <.'i  ihe  huu«ie|  that  fcame  wirbin  eig"ht  or 
f«'el  of  it ;  apersnit  vtanditisf  at  that  window 
se**  nil  I  be  people  that  pang  upon  the 
Tlie  other  wiudovv  was  ncit  tlieti  b^iarded 
r,  1  believe,  ever  had  been  ;  that  was 
only  II  casement  I  made  particular  observa* 
on  it,  to  fiee  it'  Ihero  ever  bad  been  any 
either  «ide,  and  could  see  no  ajipear- 
any;  that  is^  Inrge  enough  for  me  to 
ptfNit  At ;  I  have  sinrp  shook  hands  wUh  my 
'^fr  out  at  it,  she  fttautltng  on  lite  ground  with- 
•«»,  and  I  in  the  room  ;  it  was  ensdy  opened, 
«ttiy  by  lurniug"  a  loui^  hook  ;  this  looks  out 
Bft little  nttrrow  lane  or  flitch,  and  over  the 
wdbris  a  latiri*  common  6eld. 
Irii  the  rorim  lig-bt  or  dark? — ft  is  wliat 
may  call  a  light  room,  rather  than  dark, 
Aevui  of  these  two  wiodow«,  and  the  tiles 
•rere  (xnnted ;  the  light  came  iu  from 
rroof ;  it  coidd  never  be  a  dark  room. 
What  son  of  I  lies  were  they  ?— Tb^ty  were 
0-tiles. 

How  far  was  that  window  from  the  ground  ? 

ilirvi*,  wrtH  I  to  htiu'r  out  at  the  window 

bands,  I  Mioutd  not  he  above  three  feet 

the  ifround.     The  ground  is  higher  a,t 

^^t  window  than  it  ta  at  the  north  win^tow  a 
pod  deal 

Bill  you  observe  an  old  sign  in  the  rooKi  ?*— 
*Wi  recolU'Ct  there  was. 
Were  there  any  trees  in  that  hedge  near  the 
"^  window  F — Tliere  were,  bo  near  the 
*v,  that  was  I  wiihin-side  with  a  hunting 
^wjl,  f  could  reath  the  bciiiifhs. 

lli<l  yuu  idMiserve  I  hi*  boutrhs,  whether  they 
•^Im^ii  Joppe<i  liilely  ?— 1  did  not. 

Were  tliere  any  cobwebs  on  the  drawers,  so 
•to  Hi  tbeiii,  Hi;  It  weie,  to  the  wail  f— I  did 
^H^erve  ihut. 

Wai  Canning'  come  at  tb|s  time,  while  you 
*tt  obteriiiig  the  luom  ?~ No,  nhe  wm  not. 
.  Wt»  Adambon  there? — He  was  in  the  room 
••(r  before    sh»'    en  me;    there  w«ro  a  great 
•ttinber  ut  petiple  there. 

iVbetber  any  thing  reniHrkahle  happened 
P^m  Adam^m'6  conduci  ^-*\Vhf^lhe^  it  was 
mim  bis  /,eal  1  know  not,  hnt  he  took  hold  on 
Jfeuardi,  and  pull^il  ih'-m  down  from  the 
h  nioduw  ;  I  tmtlf  Gentlemen ,  ibis  canuot 


aow 

afckli 

R 


bi*  the  ronm,  for  the  girl  gave  tio  acc^junt  of 
any  hay  hcing  iti  ihe  room. 

What  purt  of  the  room  did  the  bay  lie  inf — 
It  lay  lowiirds  the  ea^t,  on  the  same  side  the 
winddw  was  on,  beiwijtt  the  north  and  east 
ivinddw  ;  and  tti«  bed  was  on  (he  right  ^ide  the 
Htairs,  under  the  jack-line  hole^  in  the  south- 
nest  part ;  we  agreed  by  and  bye  to  go  over 
the  way  aiJ^ain, 

Did  you  hee  the  pitcher  while  you  were  in  the 
hoiine  ?-- 'I  can*t  say  I  saw  one,  or  looked  for 
one  ;  it  might  be  there,  and  J  overlook  tt. 

Where  were  the  people  of  the  house  then  ? 
— We  had  left  tiieni  iu  custwly  in  the  parlour, 
which  is  the  left-hand  room  coming  into  the 
house  :  when  we  were  over  the  way,  I  tiaw  Mr. 
AdamsoH,  and  another  man  whom  I  did  not 
know^  toss  up  to  know  who  should  go  to  meet 
Canning ;  and  Adamsion  ncnt  to  meet  ber,  and 
cauie  back  before  her. 

For  what  purpose  did  they  want  to  go  to 
meet  her  ? — I  conjectvired  it  was  to  see  if 
Ihey  had  not  gone  to  a  wrong  house:  we 
were  all  im patient  to  see  her  ;  for  if  i  had  had 
a  horse,  1  would  have  gone  myself:  when  I 
and  abundance  of  other  [leople  were  returned 
to  tn other  Wells's  house,  Adtimifoii  came  riding 
up,  seemingly  with  a  good  deal  of  pleaKUrCf 
wawinqf  h\s  hat  with  his  left  h.^nd,  and  baid. 
We  are  all  right  yet,  for  she  says  there  is  a 
liltle  hay  in  the  room.  Presently  after  the 
chaise  appeared,  iu  which  ttie  girl  was:  wbeti 
she  came,  some  were  for  carrying  her  over  to 
the  pubhc'bouse;  others  were  fur  bringing  her 
to  the  bouse  of  mr»ther  Wells,  which  ihej 
did  ;  nbe  was  broug^ht,  find  set  on  a  dresser  in 
the  kitchen,  on  the  lef'i  band  of  the  door, 
fronting  the  fire-place;  and  the  door  where 
she  alWwards  said  *he  had  been  confined  waa 
on  the  left  hand,  and  the  d^tor  at  that  time 
open ;  if  she  had  turned  her  head  that  way, 
she  might  have  seen  ihc  stairs  j  but  whether 
iUe  did  turn  her  head  that  way,  or  whether 
she  might  have  seen  up  into  the  room,  I  can* 
not  say  i  J  believe  she  miq^lit  have  seen  part  of 
it.  Then  there  was  u  proposal  to  send  for  a 
bottle  of  wine  to  refresh  those  people  that  had 
been  in  fUe  landau  witb  her  in  the  cold.  8he 
remained  on  the  dresser  about  four  or  five 
tniniites ;  then  she  was  removed  to  the  middla 
of  the  kitchen,  on  a  broken  stool,  with  her  back 
towards  the  tire- (dace,  with  tiie  door  of  the 
bay-lntl  on  her  right  liantl,  looking  towards 
the  dresser ;  the  door  of  the  room  was  then  re- 
maining open,  and  she  tnight  have  seen  thai 
pnrt  of  It  that  the  si  air]}  led  up  to  :  I  believe  she 
might  sit  thus,  first  and  last,  twenty  minutes: 
it  wa5  the  lime  they  weut  and  got  a  pint  of 
wine,  and  mulled  it. 

When  it  came,  did  she  drink  much  f — She 
drank  but  very  little:  then  somebody  put  the 
tbiitg  thus.  Now  let  na  call  uiother  Wells  in  :  I 
SMid,  Hold,  geuilfiuen,  this  will  be  ao  Old- 
Bit  itey  f^tory,  ond  whoever  is  fixed  upon  for 
the  comtuiiting  the  fact,  they ^11  certainly  be 
hanged  :  let  the  room  he  tided  full  of  people, 
and  let  her  go  and  finU  out  the  people  wham 


365] 


27  GEORGE  II. 


Trial  (if  Elizabeth  Cannings 


[SS4 


■he  accuses  with  robbing;  lier ;  and  proposed  to 
<;arry  her  into  the  parlour,  where  wero  •  8^1  eat 
many  people :  she  was  carried  in ;  and  Mary 
Squires  sat  on  the  right  hand  oft'  the  chimney, 
upon  a  low  chair,  almost  doubled  together, 
witii  a  black  bonnet  oo ;  i  am  sure  I  could  not 
see  her  face. 

To  what  part  of  the  room  did  Mary  Squires 
then  direct  her  looks  ? — I  believe  her  face  waa 
pointing  tu  the  window,  straight  as  she  sat,  and 
mother  Wells  sat  on  the  left-hand  side  of  the 
fire :  1  said  to  Canning,  Now  look  for  the  wo- 
man that  robbed  you ;  she  immediately  pointed 
to  Mary  Squires,  and  said.  That  old  woman  in 
the  corner  was  the  woman  that  robbed  me. 

Did  she  see  her  face  at  that  time  ?-— I  could 
not,  but  1  will  not  pretend  to  say  what  she  could 
see;  I  stood  close  to  her;  someliody  said,  (1 
think  it  was  Mary  Squires 's  da'j^hter)  Do  you 
hear  what  the  gentlewoman  says?  she  says 
you  robbed  her.  The  old  woman  got  op  from 
the  stool  immediately,  and  said- 
Mr.  Marion,  I  object  against  that  being 
mentioned ;  it  is  no  evidence. 

Court.  He  may  give  an  account  of  what 
was  said  in  the  defendant's  hearing  and  pre- 
sence. 

Nash.  The  old  woman  came  up  to  her,  and 
said.  Madam,  do  you  say  I  robbed  you  ?  (and 
put  herself  in  a  particular  posture,  and  had  a 
sort  of  a  clout  about  her  face:)  pray,  madam, 
look  at  this  face ;  and  sure,  if  you  have  once 
seen  it  belbre,  you  must  have  remembered  it, 
lur  God  Almighty,  I  think,  never  made  such 
another;'  pray,  madam,  when  do  you  say  I 
robbed  you  ?  She  answered.  It  was  on  the  first 
day  of  this  new  year— The  first  ilay  of  this 
new  year,  madam,  do  you  say  ?  Ltird  bless 
■le!  i  was  an  hundred  and  twenty  miles  from 
this  place  then.  I  uith  my  tiiit(er  tapped  her 
on  the  shoulder,  nnd  said.  Dame,  where  was 
you?  She  re|ilii>J,  I  was  at  At»bott»bury  in 
Dorsetshire,  and  there  are  a  hundred  people  1 
can  bring  tu  prove  it ;  and  some  of  them  have 
known  me  twenty,  thirty,  and  forty  years.  I 
think  there  were  twenty  people  sayintf  she  has 
been  here  but  a  very  little  time.  There  was  a 
yoor  woman  they  calleil  Natus,  sat  there,  who 
said,  she  herself  had  been  there,  I  think,  ten 
ur  eleven  weeks,  and  that  she  had  never  seen 
Canninuf  there  heture;  and  she  paid.  Squires 
had  been  there  hut  a  very  little  time.  After 
this  was  done,  Canning  was  carried  ont  of  | 
tiie  room,  and  cirtied  up  the  stairs  facing  the  ' 
street-door  into  all  the  rooms ;  I  did  not  go  up 
witii  her:  afler  that  she  was  carried  up  into  the 
hay-loft;  there  she  said,  *  she  lielievcd  that 
was  the  room.' 

Mr  Davi/.  Are  these  her  words,  'she  be- 
lieveir  ?<— xVdsA.  I  think  I  can  take  upon  me 
to  sw<?ar  tliey  %vefe  her  words.  I  asked  her, 
what  she  kuew  in  the  room?  she  turned  about 
on  her  left  hand,  and  said,  *•  This  is  the  room, 
flK  here  is  the  hay  I  lay  opoo,  but  I  think 
there  is  more  of  it  than  there  was  then,'  point- 
ing to  the  loose  bay  on  her  left  hand.  Upon 
that,  she  wm  atkad  bj  tke  peop le,  that  bad 


her  under  the  arms,  what  could  she  note  more 
in  the  room  ?  They  took  up  a  pitcher  that 
stood  upon  the  ground,  and  held  it  up  to  her; 
she  said,  <  Yes,  that  is  the  jug  I  had  my  water 
in :'  then  a  gentleman  that  was  there  took 
hold  of  a  tobacco-mould,  which  was  iDaoomer, 
and  asked  her,  if  she  remembered  that?  sbs 
said,  '  she  remembered  that.'  He  asked  her 
what  else  she  remembered,  (I  think  that  wm 
Mr.  Hague)  and  added,  *•  Do  you  remember 
these  three  saddles  ?'  (that  were  in  the  roota) 
she  said,  *  I  believe  there  might  be  one;' 
the  saddles  seemed  to  he  all  over  dost,  ihej 
seemed  to  have  been  laid  up  there  out  of  tlw 
way  for  a  long  time:  then  she  was  miu^ 
if  she  remembered  the  nest  of  drawers  f  At 
said,  she  did  not  remember  them.  A  geoliei 
man  made  answer.  Have  you  been  here  twoi^- 
eight  days,  and  never  remember  them  draew 
she  said,  she  did  not  remember  them.  IWs 
Mr.  Hague  asked,  why  she  did  not  strive  It  ftf 
out  at  that  window?  (that  is  the  east  winis* 
fronting  the  stairs)  she  said,  she  thought  it  hd 
been  fastened. 

Did  she  say  she  had  tried  to  see  if  ic  was 
fast .' — 1  don't  remember  she  said  she  had. 

Did  Natub's  wife  say  any  thing  ahmt  her 
lying  in  the  room  ? — Status's  wi&  sttd  ia  the 
parlour,  that  her  husband  and  she  had  bid 
there,  in  this  hay-loft,  ten  or  elevcD  wecb: 
Canning's  mother  was  in  the  room,  Imentiaf 
sadly,  that  that  was  the  hay  that  her  poor  dcir 
girl  had  bid  upon. 

Was  the  girl  asked  whether  shereoaemberad 
the  jack- line  ? — She  was ;  she  said,  abe  did  wH 
remember  seeing  it. 

Was  the  tub  of  pollard  mcntioued  to  b«f— 
I  think  it  was  not. 

Did  she  continue  positive  that  Squires  «« 
the  woman  who  robbed  her? — I  heanlao  cn- 
tradiction  to  that. 

What  has  led  you  to  recollect,  at  this  d»- 
tancc  of  time,  all  these  particulars?— It  w 
so  remarkable,  it  could  not  slip  out  of  my  Usd; 
it  was  at  that  time  the  suliject  of  coBvenatisB: 
it  !!>  wlII  known  I  told  my  sentiments  the saiai 
ni;;ht  to  abundance  of  people  that  came  to  kan* 
about  it. 

Knowing  all  these  particulars,  which  vdaU 
have  been  extremely  necessary  to  Itave  htm 
proved  in  the  defence  of  Mary  Squires  aid 
mother   Wells,  how  came  you,   when  dKW 
lieople  were  to  be  tried,  the  one  for  a  capital 
felon,  aod  the  oiher  as  an  accessary,  not  lob>  r  « 
an  evidence  then? — 1  waa  here  some  part  if  ^ 
the  time  the  girl  was  giving  her  evidoice,  aa^  ^ 
really  was  a  little  disc«>ntented  in  my  miadi^' 
about  her  giving  her  evidence  at  that  time,  ail 
her  varying  from  the  particulars  alie  fiiit  le* 
laied  before  Mr.  Alderman  Chitty,  and  then  V 
us:  we  had  a  vuy  large  feast  at  Goldwniihr 
halt,  aud  I  was  obli:;ed  to  give  my  atteadaoc^ 
because  I  ain  butler  to  the  company ;  I  ham 
the  care  of,  may  be,  tliree  or  four  tbooMjA 
pounds   worth  of  plate;  so  that  I  ita^yed  is 
court  but  till  eleveu  o'ckick,  being  obliged  tm 
be  there,  and  I  did  not  Uuak  then  im  aay 


Jkf  WUfid  and  Corrupt  Perjury, 
|iOOiif  it;ied  tipoo  Bucb  au  id 


A.  D,  1754^ 


[386 


I  •  »titin<siiii  N-No,  I  ha<l  not. 
t  then  HQtnv  Umt  M&ry  Squires  was 
for  her  lite? — 1  tlidi  am)  1  ilid  Dot 
^Mitlr}  \m\f:  been  cast,  uiJeetL 

pj  1  her  in  tlati^ci"  of  l>ein|f 

UiTf*  tbougbt  voiir&eir 

see? — ir'iihe  had 

nee,  1  should  not 

!t ;  i  siioiiUl  Lave  heen  rery 

I  ^  tut  ID  my  own  aingle  npi- 

i]i»i  iiiiiiU  she  wmjld  have  bfei)  con* 

thought  the  wboie  ci  it  urns  lance  of 

Eroilecled  together  could  tioi  amount 

111',  and  a[i|>rebeiiited  the  woman  was 

'bad  apprehended  it  possible  that  the 

tiki  huve  bven  convicted,  would  you 

ayed  and  given  e%id£Dce  ? — I  would 

I  tniide  an  excuBe^  and  come  ag-aio. 

'  een  always  of  the  opioioii  you 

[^anuini^' s  ei'idence  was  uutruef 

j%  tm'isitd  upon  the  same:  I  have 

[  At  the  trial  ol'  Mary  Scpiires,  I 

nd  tutd  31  r.  Flower,  the  ossistaut 

i»ld5fiiiibH*  company,  bow  far  1   had 

^ol,  and  said,  I  think  it  h  impos- 

[  the  ejrcumslances,  that  iibe  can 

and  be  said,  he  thought  so  too. 

line  you  not  to  aaitiAtiit  the  Court, 

of  3rour  own  knowledge,  knew  she 

r  of  pegury  P— I  cau  gif  c  do  reason 

onduct  did  you  pursue  after  the  con- 
Inquires,  in  order  to  atone  for  ycmr 
•■^^^cnce  for  bcr? — Sonic  time  al\er 
I  llie  old  wuman  bad  a  respite  ;  I 
iTy  waiifd  on  my  lord  mayor,  and  told 
^ifvcd  I  could  let  hrm  into  the  whole 
i  any  man  could, 
\  this  f  oluiitarily  ? —  l  did ;  I  was 
h^ur  there  was  some  design  of 
pour  woman  ;  I  did  it  not  out  of 
He  girl^  but  ruerely  tn  justice  to  the 

-eicamtned  by  Mr,  Mot  tun. 

I  beitr  ihr  t^irl  posiiively  charge  Mary 
~kr'  I   at  Eniield- Waab,  on 

|b>  >f— Idi^l. 

hear  her  finish  her  etidence?— I 
1  wbt-tlier  khe  had  ([uite  done  or  not, 
at  tity  wAtcli,  and  fouod  it  was 
►^weiit  away. 

"^   »er  say  ?— He  said  they 
|;hir* 

fttisfaction  that  you  bare 

[ftccouat  v\\  Wiiii  not  uu  ini^  tn  the  oh* 

:u\,     a  fniitlier  \VcI1h*s  upon 

re  on  the  1st  uf 

•i  i  she  was  mistaken 

Dt 

ryo0  baard  the  girl  gite  a|»y  account 
I  UwT  iiiiiib«r*s  ?*— 1  Derer  was  at  her 

Mie  old  wontn  niadt  Utr  fact  so  odd, 


by  putting  herself  in  a  particular  postute,  as 
you  deacriWd^  did  the  girt  alter  iu  her  opiniou  P 
— No,  I  did  not  bear  she  did. 

Was  Canning  in  the  room,  when  Natus^a 
wife  said  she  bad  laid  in  the  room  10  or  11 
wettkfi? — She  first  said  she  bad  laid  in  ibe 
house ;  whether  it  wa<i  before  we  went  up  into 
the  room^  I  cannot  say  ;  but  I  am  certsin  ahs 
said  so  in  the  partour,  when  Canning  was  by. 

Did  you  continue  to  have  a  good  opinion  of 
Canning? — t  dropped  my  opLoion  quite  about 
her  being  innocent. 

Look  at  tbis  letter,  is  it  3'onr  baud- writing? 
(He  takes  a  letter  in  his  hand.) — It  is  my  band 
writing, 

Wlien  was  it  wrote  P — The  day  it  bears  date. 

Who  is  it  wrote  to? — To  Mr.  Lyou. 

Juhn  Hague  sworn. 

Hague.  I  am  a  goldsmith,  and  live  in  Noble* 
street,  and  am  acquainted  with  Mr.  Nash:  be 
came  to  me  on  the  3 1st  of  January  1759,  at 
niglit,  and  told  me  of  an  extraordinary  affair  ; 
the  coateuts  were  what  be  had  heard  before 
Mr,  Alderman  Chitty  from  Elizabeth  Canning ; 
be  desired  me,  and  I  agreed  to  go  down  to 
Un field  Wash  with  bim.  Mr.  Nash,  Mr.  Lyod, 
Mr.  Aldridge,  and  myself,  went  together  in  a 
coach  on  the  next  morning.  Before  we  got 
down  we  met  a  man  on  horseback  (who  it  was, 
I  do  not  know)  ^  he  came  to  the  coach-side, 
and  said,  We  bave  taken  them  all.  When  w« 
came  there,  we  went  to  Mrs.  VVeUs's  ilirecily  ; 
we  first  went  into  the  parlour  on  the  lefl^hand, 
there  %ve  saw  the  people  that  were  taken  j 
after  we  bad  talked  with  them,  we  went  to  tako 
a  view  of  the  bouse;  we  went  up  the  stairs, 
und  saw  the  rooms  ;  then  we  came  down,  and 
went  up  into  the  tiaytoft  or  workshop,  and 
finding  nothing  that  answered  the  descriptiott 
the  girl  had  given  before  Mr.  Alderman  Chitiy, 
as  Mr.  Nash  bad  said  to  us,  he  said,  Here  is  no 
room  answers  the  description  she  gave ;  wfl 
went  over  to  Cantril'sand  got  a  gla»!i  of  wins 
to  relVesh  oursekea. 

Air.  Willcs.  \\m  Mr.  A  dam  son  in  the  roonk 
called  the  hay-lofl,  when  you  weref-^-H^^g-ue. 
Jle  was  ;  be  and  Scarrat  were  saying  to  on« 
another.  Do  you  go,  and  do  you  go,  and  at  lasl 
they  tossed  up  a  half- penny,  and  it  fel}  to 
Adumson^s  lot  to  go;  ne  look  bis  horse  and 
went,  and  came  back  with  great  triumph,  wilk 
a  whip  lashing  over  bis  head,  saving.  By  Goi^ 
we  are  all  riglU,  she  says  there  Is  a  little  bay 
in  the  room  ;  and  iq  about  a  quarter  of  an  hour 
after  this,  Canoins'  came ;  she  was  firat 
brought  to  mother  Wells's  door,  and  was  taken 
into  the  kitchen  on  the  right  band  ;  she  waa 
set  upon  the  dressi^^r  in  the  kitchen  on  the  Ufl 
hand,  and  the  door  opening  to  the  bay -loft  was 
then  open,  which  she  could  not  miss  to  see ; 
but  she  did  not  itienticm  a  word  that  that  wai 
the  place  where  she  bad  been  in  ;  she  sat  there 
a  few  miiuiiei ;  then  they  took  ber  off,  and  ret 
her  m  a  chair ;  she  never  opened  ber  lips  aboot 
her  fit.'^iys  being  cut  off  there. 

How  long  do  you  tbiuk  abt  wai  ia  }hm 
2Q 


27  GEORGE  n. 


S87] 

kitcfaeD  ?— In  tiltion^  on  the  dre«er  and  in  the 
ohnir,  I  believe  she  had  been  there  a  little  better 
than  a  qoarter  of  an  hour ;  then  they  carried 
her  into  the  parloor,  and  set  her  opon  a  ubie ; 
mother  Wells  tat  wery  close  to  her ;  as  thev 
were  bringing  her  hi,  mother  Wells  said,  wiib 
a  sort  of  a  sneer,  Why,  the  girl  is  sick  ;  there 
was  no  answer  maile  to  that ;  as  Canning  was 
sitting,  she  pointed  to  the  g}-psey- woman,  and 
said,  That  is  the  woman  that  cat  my  stays  off. 

Was  the  gjpsey  in  such  a  situation,  that 
she  could  then  see  her  face  ? — Upon  my  word, 
I  think  she  could  not ;  I  was  close  to  her,  she 
was  smoking  a  pipe. 

Upon  that,  what  did  the  gypsey  say  or  do.' 
—•Lucy  Squires  went  up  to  her  mother,  and 
said,  Blot  her,  the  girl  says  that  you  have  cut 
her  stays  off:  then  the  old  woman  got  up,  and 
in  a  great  trembling,  she  took  her  hoonet  off, 
and  stroked  her  hair  up,  and  said,  **  Madam, 
consider  what  a  remarkable  woman  I  am ; 
wonid  you  go  to  take  a  life  away  ?  I  was  at 
Abbotsbury  at  that  time." 

Did  she  say  how  nmny  miles  that  was  from 
town  ? — 1  don't  remember  she  did ;  but  George 
Squires  then  said  it  was  a  hundred  and  twenty 
miles  from  London. 

Hare  you  heard  Mr.  Nash  gire  eridence  a 
little  time  ago  ?-*-!  hare  not  heani  a  word  of 
his  ertdenoe. 

Did  any  body  else  take  notice  how  long  the 
gypsey  had  been  at  £nfic]d  ?— No,  I  dou't  re- 
member any  body  did. 

Do  you  remember  seeing'  Judith  Natus  ? — 
1  cannot  say  I  heanI  her  say  any  thing. 

How  long  had  Canning  been  iu  that  room, 
before  yon  took  her  up  into  the  hay -loft? — 
I  beliere,  about  half  an  hour ;  I  led  her  up 
stairs  myself;  I  had  hold  on  one  arm,  and 
another  person  on  the  other,  but  1  do  not  know 
who  it  was ;  he  has  not  apjKfared  since ;  but 
before  we  went  there,  we  wtnt  into  several 
other  rooms :  she  was  very  quick,  and  saiti, 
This  is  not  it,  and  that  is  not  it. 

What  did  Rhe  say  upon  her  first  coming  into 
the  hay-loft? — When  we  got  to  the  top  of  the 
stairs,  she  turned  upon  her  right  hand  next  to 
the  chimney,  and  took  no  manner  of  notice  of 
any  thing :  then  turning  to  the  left,  This  is  the 
room,  says  she,  that  1  was  confined  in :  then 
her  mother  said,  Ay,  tliis  is  the  room  where 
my  poor  child  was  confined  in.  Said  I,  Good 
woman,  were  you  confined  here  with  her  ?  No, 
snysshc,  but  I  bflicvi*  !•  very  thing  in}' daughter 
says  :  then  I  snid,  IVoy  hohl  your  tongue,  and 
flu  not  answer  any  quetiiions.  There  I  saw  a 
vrry  large  hole  on  tin*  right  hand  coming  up 
stairs,  lur^c  enough  for  a  large  cat  to  go 
throui^h  ;  it  was  0|>en. 

How  hi^h  is  it  fi-om  the  floor? —It  is  close 
to  the  floor ;  the  jack-  line  run  through  it,  and 
a  pu'lly  just  over  it ;  if  there  had  been  a  mouse 
in  the  room,  she  might  hare  seen  it. 

Wire  you  in  that  room  as  soon  as  Nash  and 
Aldridge? — No,  thev  had  been  there  l>efore 
me.  There  (  saw  also  a  dirty  nasty  hay-bed 
oa  riie  ground,  withiog  but  hay,  which  1  snp- 


Trud  of  Eiizabetk  Ommng, 


[98B 


pose  was  taken  from  the  other  hay,  whcvB  w« 
were  lold  Fortune  Natus  and  hiswife  lay.  I  adccd 
Canning  whether  she  remembered  the  p*Hy  f 
she  said,  No,  she  nerer  saw  it.  There  is  a 
little  narrow  chimney,  about  fifteen  oraizleett 
inches^wide ;  there  was  no  grate,  or  appearaiioe 
that  there  ever  had  been  one  in  the  chimney  ;  it 
was  full  of  hardly  any  thing  else  bat  oobwebt, 
which  seemed  to  have  been  there  a  oonsider- 
able  time,  they  were  so  nasty  and  dirty. 

Were  the  cobwd»s  so  sprnd  about  the  chim- 
ney, that  it  was  impossible  there  should  hate 
been  a  grate  there  two  days  before  ?— Yes,flv. 
There  was  an  old  casement  o?er  the  diiraaay 
that  was  very  dirty  and  duster:  I  said  to  Chh 
ning.  Child,  did  you  Uke  this  for  a  pieliiitf 
she  said.  No.  W  hen  I  took  it  away,  all  tht 
cobwebs  came  with  it  from  the  top  to  iht 
bottom  ;  and  on  the  place  from  whence  it  wll 
taken,  there  appeared  a  print  of  it,  that  looM 
as  if  it  had  been  there  a  year  or  two. 

^Vas  there  any  mark  of  any  place,  as  if  tha 
picture  had  been  there? — No,  Sir. 

Did  you  observe  the  window  that  looks  to- 
wards the  east  ?-^I  did ;  it  is  a  casement  hrge 
enough  for  me  to  get  ont  at ;  that  is  it  which 
fronts  the  stairs:  I  asked  her  how  sIm  came 
not  to  get  out  there,  and  opened  it  when  I  had 
hold  of  her  arm;  she  said.  Sir,  1  heltereit  wm 
nailed ;  then  I  looked  to  see  if  there  were  any 
appearance  of  nails  being  there,  and  could  see 
none  at  all. 

How  high  is  this  window  from  the  griNiiidf 
— It  might  be  about  ten  feet ;  i^  went  into  a 
little  narrow  kind  of  a  ditch,  about  half  a  yard 
wide,  where  was  a  hank  up  against  it,  and  a 
hedge  and  a  field  behind  it;  in  the  hedge  were 
several  trees  near  the  window. 

Did  the  branches  look  as  if  they  had  beca 
lopned  lately  ? — Yes,  they  did. 

How  much  hay  do  you  think  there  might  be 
in  the  room  ? — 1  believe  about  half  a  load;  it 
lay  in  the  room  on  the  same  side  the  window 
was  on ;  it  seemed  to  hate  laid  there  a  long 
time :  there  was  another  window  opened  into 
the  road,  boarded  up  on  one  side,  and  a  caca> 
ment  on  the  other  that  opened,  that  is  to  the 
north,  and  there  is  a  lane  at  the  comer  of  it ;  I 
looked  out  at  it ;  there  was  no  pent-house  or 
shed  under  it;  it  was  perpendicular.  Mr. 
Adamson  tamed  some  of  the  hay  over  to  look 
for  the  stays.  I  saw  also  a  chest  of  drawers, 
which,  1  dare  venture  to  say,  had  been  there 
more  than  a  year,  if  not  two ;  they  were  so 
very  dusty  betwixt  the  drawers  and  the  waU, 
that  1  did  not  care  to  meddle  with  them. 

Do  you  remember  a  barrel  or  tub  in  the 
room? — 1  cannot  say  I  do;  there  was  a  to- 
bacco mould  over  Fortune  Natus's  bed  ;  some- 
body asked  her,  if  she  knew  that?  she  said, 
she  did.  There  were  two  women's  saddles, 
and  a  man's  saddle ;  1  askeil  her,  if  she  saw 
them  ?  she  said,  she  believed  there  was  one; 
they  all  appeared  to  have  been  there  a  long 
while,  they  were  very  nasty  and  dusty. 

Did  you  observe  the  door  that  leads  to  Ibis 
room,  bow  it  fastened  ?— I  M  particalarly ;  1 


S6&] 


far  Wil/itl  and  Corrupl  Ptrjury. 


A.  D.  1754. 


[390 


C!iratil  ooi  ptrceif*  tfiere  ever  wts  a  lock  ui»on 
III  1  beiieir#  there  never  was  one^  it  fastened 
o«il^  by  i  Utcli  ttHil  a  Kulton  ;  1  will  not  be 
pocitirc  tb«*r«  WHS  a  latcb  ;  I  ftnid  to  the  girl, 
S&cittti#ii,  cbilil,  1  catiDOt  ibluk  you  ivere  ever 

IV hM  aniwer  did  she  make  io  that  ?— Sbe 
DMiI^  me  tiAne  at  nil. 

Did  you  bear  Judith  Natus  say  any  ibiug;  m 
Ca&oifi|S^*»  pre»^ct^  about  liie  rof^roN-l  can- 
ODl  fiy  wbeiber  1  did  tit'  not, 

Ihd  yaa  go  away  satisfied  with  what  you 
? — No,  I  went  away  very  much  dis- 
VVheo  we  were  in  the  coach  tfoiog 
Mr.  Niisli,  anil  51r.  Aidridge,  and  l  gave 
h  '  .  Lyon,  that  we  did  not  think 

^      :       ,  we  said,  she  must  be  mis- 
he  waa  no  anurry  at  it,  that  be  did  not 
9fmk  In  ua  all  tbe  way  bcjoief  and  that,  1  sup- 
|^ia«^  is  the  reaaon  we  were  not  aub|>c&oaed  or 


yoQ  not  to  come  and  glwe  your 
I  m  ^arour  of  Squires  ? — 1  was  in  court 
,||M«W9«  and  Til  ^ive  my  rt^asons  why. 
tilmj  were  first  taken  up,  Canning  eaid^ 
HaII  wail  one  of  tbe  girls  tbut  atood  by 
wbea  htr  aiayK  were  taken  off;  at  tbe  same 
ISmc  Vtrtno  lfall»  with  all  the  seemiiiflr  inno- 
emift  laoshed  in  her  face*  and  %md^  God  tbr- 
^M%yna,  ntAtinm,  I  never  saw  you  in  Ihifi  house 
lanj  b'  i.)d  chaUeu^ed  her  and  Lucy 

(iyjini  Ti      ,  i^  bv  :  Lucy  Squires  >>aid  the 

1«|  mmm  aa  ahe  did.  Seeing;  such  seeming 
iuoeeoce  in  her  there^  and  when  in  court  to 
bur  ber  swearing  sucb  a  thing  that  i  iboaght 
m  ti£  ait  Ikbe  aa  tlie  gui|kel  ia  true,  I  protest  I 
bad  luvt  power  to  apeak ;  I  believed  ahe  waa 
in  alt  »he  said  ;  that  is  the  whole  rea- 
'tabv  <    '•        '  *(peak:  but  bad  1  badapihti^ 

Alter  *Njuire?)  iviiK  convicted,  did  you  approve 

l|aiir  owp  conduct ?— Upon  my  word,  Sir, 

not  eaay  upon  my  bein^  silent.     I  went 

ownfree-witlbelbre  my  lord  mayor,  and 

\Uk  account  of  what  1  knew,  tbe  same  as 

lai  yo4i  any  ncciuaintance  with  Alderman 
fs^  Iben  f— No,  (  do  luii  know  thai  ever 
sni  him  before, 
avr  toitg  after  tbe  trial  wast  it,  that  yon 
tlw  mylofd  mayor  f — It  woa  about  a  fort- 
tor  three  weekf  after;  it  waa  lung  before 
I  WAV  reiipitird. 
riliil  you  any  knnwiedtfe  of  ranning  before 
iweol  down  with  her?— No,   t  never  aaw 
rbrfare  id  my  tile. 
\lM  yr»u  g«i  wiih  her  a<$  ber  friend r^ — I  did, 
brr  friend  a.i  any  oov  that  went  alontT 
'  {  and  before  wile  came  da^'n,  did  as 
■boae   M    mot  brr  U'elb,    and  George 
a,  and  tbe  pe*>ple  in  the  bouH^. 
rni«r«-i  x^iunied  by  Mri  Nartt. 
llffT'  '^ot  at  the    whole  trial    of 

rS:^..    ;  J    WOl, 

low  iiwg  wvrr  yuu  in  court  afler  Virtue 
_        li«i  htf^  e]i4mmed  m  a  wiUMMa  ?— J&»be 


Wtre  you  so  much  alarmed,  you  could  not  < 
recover  your&elf  in   the   whole  trial?— Ujkmi 
tny  oath,  1  coulif  not  recover  myself  \  I  realty 
wns  shocked  at  it. 

liad  you  beard  Canning  give  her  informa* 
Lion  of  the  room  ? — No,  I  bad  not ;  1  had  il  ] 
from  Mr.  Na»b. 

Dlil  you  see  Canning's  mother  io  the  hay- 
loft f—1  did  ;  she  followed  us  up  there,  and] 
said  them  words  to  ber  as  I  said  btr^fure. 

Are  yon  sure  you  saw  ber  in  the  hay- loll f-**] 
Yea,  1  am.  ( 

Did  she  continue  there  the  whole  time  you 
were  essamining  it  f — I  do  not  know  thai; 

How  near  is  tbe  dre»ser  in  tbe  kitchen  to  tUa 
stairs? — ^It  is  very  close  to  the  stairs. 

Can  you  from  that  dresser  see  up  the  stairs, 
if  tbe  door  is  open  ? — When  the  door  is  open«  i 
you  may  ait  on  any  part  of  tbe  dresser,  and  ae#  1 
quite  up  into  tbe  room  ;  to  be  sure  she  could  ] 
see  quite  up  into  the  room. 

Was  Mr.  Adamson  in  tbe  hay-loft  when  the] 
^irl  was  there? — I  do  not  remember  I  saw  him  ] 
there  then ;  I  saw  him  there  before  tbe  girl  | 
came  down  to  En  field- Wash.  I 

Were  3'ou  in  the  room  all  the  time  the  girl  j 
wa«  ? — I  waa. 

Did  you  bear  any  body  ask  ber,  what  was  to  j 
be  seen  out  at  the  window  P— 1  did  not  heJir  ] 
that ;  1  saw  him  and  0nb  Scarrat  going  to  teat 
the  boards  down  before  the   girl  came  ther«» 
and  they  were  pulled  down  before  slie  came. 

What  did  they  do  ttiat  for  ? — I  do  not  know ; 
tt  may  be  through  prejudice  j  I  do  not  know 
tbe  reason  why. 

Wbeiher  there  was  not  an  observation  of 
Vours,  or  sonic-body  else,  that  those  boards  bad  , 
been  but  lately  done  up? — No,  not  by  me,  or^ 
any  body  else  that  1  know  of. 

Edward  Aldridge  SWOrn. 

AUiridge.  I  live  in  Foster- lane,  and  am  a  ] 
working  ailversinilh  ;  I  am  acquainted  with  j 
Mr.  Njihb,  Mr.  Hague,  and  Mr.  Lyon.  OtiJ 
the  1st  of  February  1753,  I  went  down  alonr  I 
with  them  to  Kntiebl-Wasb,  bavtiif  been  lord] 
how  sadly  Mr.  Lyon^s  maid  had  been  used. 
When  we  werf  on  tbe  road,  there  was  a  man  j 
came  on  horseback,  and  told  us  they  had  taken 
up  the  people  of  ibe  bouse. 

Mr.  Gasco^ne,    Havcvou  beard  any  of  tbd 
evidence  given  by  Mr.  Nash  and  Mr.  Hague  ^ 
*— Aldridge,   Nu«  1  have  t\nx.     When  we  got  to 
Enlipld-VVasb,  we  went  to  Mrs.  W^ella's  bouse; 
I   went  into  tlie  parlour;  there  were  all  tliej 
people  sitting  all  round  tbe  tire  ;  then  I  went] 
in4o  I  he  ktichen  by  myself,  and  so  all  over  tbe  J 
liou>^  :   I  was  in  tbe  room  where  the  girl  ssya  1 
bfie  WAS  con6n<-d  ;  it  i^  called  by  the  name  «lf  I 
the  hay-liift.     I  Wheve  I  was  there  before  Mr.  f 
Miiah  wua  ;   I  was  then  alone. 

In  whai  ciicumtaance  was  this  particulorj 
window  ibat  louks  towarilsthe  nortiir—lt  was  j 
part  of  It  glass^  and  paii  wood. 

ILid  the  ciiscniient  wood  over  it  f-^TItat  t| 
eannut  tell ;  1  am  sure  pait  of  it  was  boarded  j 
up. 


i7  GEORGE  IL 


km,  ao yoo  snow  mer    no,  laio  toe,  i  oo 

DOW  that  ever  1  saw  joo  in  mj  Kle  before; 

George  Sqnires  came     op   mai  nid, 

im,  do  yoo  know  me?  8be  Mid,  No,  1 


3W] 

Tbat  parrt  tinl  «m  Dot  kMfded  sf.  hid  Ifcal 
•a J  appearMce  of  oaj  th'taif  iwlfil  ap  ? — I 
was  pot  so  corioos  while  I  was  there  to  cia- 
■iae  it :  tbej  bad  described  the  room  to  mi;  aa 
hcia^  a  sqaare  room,  aad  a  room  with  a  grate 
ia  ic.  After  I  had  been  there,  Caaoiag  nmr 
dowD,  aad  was  carried  into  the  kitchea,  aad  set 
aoadreswr. 

Was  the  door  open  that  leads  op  into  the 
baj-loft? — 1  cannot  be  sure  of  that;  I  was 
aoc  in  the  kitchen  all  the  time  she  was  there. 
She  looked  aboot  as  if  she  did  not  know  where 
she  was.  I  was  with  her  when  she  was  carried 
rato  the  parloor :  as  soon  as  we  had  taken  her 
in  there,  mother  Wells  came  to  her,  aad  said, 
Msdsm,  do  yoo  know  me?  No,  said  she,  I  do 
not  know 
then 

Madam,  do  yi 

don't  know  that  ever  I  saw  yoo  in  my  life ;  it 
was  that  old  woman  in  the  comer  that  eot  my 
stays  off.  I  was  dose  by  Canning  at  the 
time. 

Did  yoo  see  the  gypaey's  fiioe  at  the  time? 
— No,  I  nerer  saw  her  face  till  she  got  op : 
Madam,  said  she,  I  cot  yoor  stays  off!  (she 
throwed  her  things  open)  I  am  ? ery  remarka- 
hie ;  if  e?er  yoo  see  me  before,  yoo  most 
know  me.  She  mentioned  Abbotshory,  and 
aereral  other  pfaices'  names,  which  I  hare 
forgot,  where  she  said  she  was. 

Coold  Canning  see  the  gy  ptey's  face  in  that 
position  she  was  in  at  the  time  she  charged 
ber  ? — ^Tbat  I  cannot  tell :  when  Canning  went 
op  into  the  hay-loft,  1  followed  jost  after  her: 
I  remember  seeing  the  hole  in  the  wall ;  when 
I  went  up  before,  there  was  a  great  whisp  of 
hay  in  it,  which  I  took  oot  and  pot  in  again ; 
when  it  was  oot,  1  could  look  all  orer  the 
kitchen ;  it  was  a  hole  where  the  jack-line 
was ;  it  was  pretty  Urge,  1  could  get  my  two 
hands  in  it ;  there  was  a  pulley  hoog  orer  it, 
hot  it  then  had  no  communication  with  the 
jack. 

Did  yoo  ask  Canning  any  Question  ?— No ; 
I  heard  Mr.  Ha^e  ask  her,  why  she  did  not 
((St  out  at  that  window  ?  she  said,  she  beliered 
It  was  fastened  up. 

Did  you  hear  any  body  ask  her,  if  she  re- 
membered that  hole  r— No :  there  was  hay  be- 
tween the  stairs  and  the  jack- hole,  and  a  little 
square  chimney  just  at  tfaie  comer. 

Were  there  any  pictures  ^er  it? — ^There 
was  a  casement  orer  it,  that  seemed  to  hare 
been  there  a  great  while,  because  it  had  cob- 
webs over  it,  and  was  tied,  as  it  were,  to  the 
wall  by  them  ;  and  the  chimney  was  corered 
with  cobwebs  from  one  side  to  the  other,  and 
full  of  dirt,  and  no  sign  that  there  had  been  a 
grate  there  at  all. 

Did  vou  look  at  the  window  towards  the 
east  ?— No,  I  did  not  I  came  down  stairs  and 
left  them  above. 

Do  you  remember  a  cheat  of  drawcn  hchig 
m  the  room  ?— I  do. 

Did  yoo  hear  her  asked  sdy  thug 
higthtiB?^No,ldklMl.    ' 


TrkdafESzttietk  C^aaug, 

Bidd,  and  aboot  half  a  load  of 
there?— Ida:  there  were  three  s 
large  i|oanttty  of  hay. 

Did  yoo  see  ever  ao  old  stsoi,  or  taUe?— 1 
did  not  take  natice  of  any.  1  went  op  joo 
after  the  cheat  of  drawers  were  rcHMvcd  i 
Kttlewayftom  the  wall;  it  aeemed  as  if  K  had 
stood  there  twcntr  years.  I  icasaarfii 
was  a  barrel  with  aooK  staff  io  it» 
floor,  poUard  1  believe. 

Did  the  hay  seem  aa  if  it  had  bei 
pretty  long?— It  did,  beeaaaeit  waa   prciq 

Were  yoo  aatisfied  with  the  room  opoa  «» 
ing  it? — I  waa  satialied  it  waa  not  Hke  a  ploei 
of  eonfineoKnt ;  neither  did  1  believe  aiw  «■ 
ever  there. 

Did  yoo,  opoo  yoor  being  io  the  1 
three  times,  observe  the  window  ' 
chimney  ?— Yes ;  it  was  a  narm 
window,  big  enoo^  for  a  man  to  get  oot  at. 

How  far  was  it  fram  the  groond? — Aaj 
body  might  drop  oot  of  it  very  easily,  withail 
hortiog  themselves. 

Did  yoo  look  to  see  if  the  wiodow  had  haaa 
fastened  ?— I  kwked,  hot  cooM  not  flMi  any 
thing  like  lastening  to  it. 

Did  yoo  examioe  the  door,  how  that  wai 
fastened?— Yes;  it  was  oot  fastened  at  al, 
ooly  with  a  bottoo  ;  there  was  oo  lock  to  it ; 
there  were  some  holes  where  locks  hai 
been ;  they  hwked  like  key  holes,  prattj 
Urge  holea. 

Was  it  probable  to  think  them  had  not  heeai 
lock  opon  the  door  for  a  mooth  ? — Yea,  ad 
longer  than  that. 

Night  yon  venture  to  swear,  by  the  appear- 
ance of  the  door,  there  had  been  no  loci  opea 
it  for  a  week  before  ?— That  I  might,  or  for  i 
month  before. 

Or  a  year.^ — Things  alter  very  moch  iat 
year. 

Did  you  go  down  as  a  friend  of  the  girl's  t-« 
I  did,  and  at  mjr  own  expence. 

After  examining  these  dreumstances,  da! 
you  return  with  the  belief  of  her  story,  or  i|Ot! 
•7-1  went  and  stood  at  the  door,  and  there  oami 
one  Hall,  a  school- master,  who  lives  at  Tbeo- 
balds,  sod  said  to  me,  What  do  you  think  of  it  I 
I  said,  Thegiri  is  mistaken ;  1  MlievesheiievM 
was  here. 

Is  there  any  pent- house  under  tlie  window 
where  it  is  supposed  she  made  her  escape  f— 
No ;  there  was  a  cellar- door  under  it ;  M 
boards,  no  pent  house;  it  waa  perpeudicolai 
to  the  ground. 

Did  you  observe  the  wall  on  the  out-side  P— 
f  did  ;  I  went  out  in  particular  to  look  at  li^ 
there  was  no  sign  of  clawing  the  wall,  or  aoj 
thing. 

When  yon  returned  to  town,  upon  the  whole 
what  did  you  think  of  it  ?— Upon  the  whole,  J 
did  not  think  she  had  been  there. 

How  came  you  not  to  appear  aa  a  wltMi 
for  Sqoirea  upon  her  trial?— 1  waa  Mvcrtife 
p«nacd« 


33] 


Jar -Wilful  and  Corrupt  Perjury, 


A,  D*  17i;4- 


[394 


Were  you  \n  court  od  tbit  trinl  ?-- *l  was  al 
IW  liejjfintiin^  of  it. 

Why  flid  ^'ou  not  stay  all  the  time? — Be^ 
ciu«e  w«  bud  a  diuner  at'Goldsooiilis'-biill^  and 
1  wna  ^tiin^  to  it. 

Wtre  you  not  very  much  concerned  at  yonr 
conduct/ wli€n  you  heard  she  was  convicted  ? 
.-!  smid  lo  Mr.  While  the  officer,  at  goin^ 
n\it,  What  do  you  thiok  i>f  it?  he  said;  lie 
Ibuifhi  she  would  he  ac()uUted  :  I  said,  1' 
tku^ht  so  too. 
How  came  yoUt  af^er  this«  to  |^o  before  my 

yvor  ? — My  lord  mayor  had  heard  of  me 
ligiie  or  Mr  Nash  :  they  desired  ine 
v^>iii«  them* 
ltd  you  any  acquaintance   with  the  lord 
m  hclore  thai? — No,  1  had  not. 

Onw  lou^  after  the  conviclion  of  Mary 
Bqtiirefi  ^j*8  it,  thftt  ymi  went  before  my  lord 
WlVor? — I  can*ijiiKity  tell 

Wai«  It  a  week  alter? — It  was  a  great  deal 
l{Hi|«er  than  thai. 

Did  you  ^ire  the  same  acctHint  there,  &• 
^ou  haie  doue  now  ?— -I  bdieve  I  ^ve  exactly 
line  MmCv 

Bad  you  any  acquainlance  nhb  Canning  be- 
tiftre  f — No,  1  had  o*)t.  (  v*enl  wiih  Mr.  Lvon, 
lietao^e  I  had  heard  a  had  character  of  Wells 
All  EnHi'ld-Wabh.  and  wu^  glad  in  h far  she  t^aa 
tiliai,  in  order  ro  he  brought  to  justice. 

Did  Mr  Lyon  and  you  nil  return  very  f^ood 
fnetids  ? — They    weui    before   justice  Taah* 
Inalter,  and  t   Mas  qutte  tired  of  the  thing.     I 
to  ati  ale- house,   and  got  some  aiutlon 
,  and  half  a  pint  of  vviue  :    1  thought  it 
not  worth  bearing* 

Cross- examined  by  Mr.  Wiliiami. 

Were  you  with  Elizabeth    Canning  in  the 
luiebenf^-l  vtas:   she  seeiucd  to  stare  about 
as  though  she  did  not  know  where  she 


Bid  aov  body  ask  her  if  stte  knew  the 
placed — No  ;  nobody  did,  as  I  know  of. 

How  loDg  might  she  be  in  the  kitchen  ? — 
Mot  a  long  time  y  she  had  some  wine  brought 
her  there. 

Did  tthe  seem  to  be  ill  ? — Sbe  did,  to  be  faint 
ftod  ill  ihen. 

How  louvf  was  she  before  she  pokited  to  the 
•kl  womau,  after  George  Squires  asked  her  the 
^Mlioti  whether  slie  knew  him? — It  was  im- 
toBtfiilely  aHer. 

Drd  she  speak  that  of  her  own  accord  :' — I 
Uliete  %he  did ;  1  dooH  ihiiik  any  body 
f»fompted  her  to  it :    1  saw  nobody  talk  to  her 

When  did  you  declare  your  dissatisfaction 
&it?— >i  dec  bred  it  ttefure  f  leil  the  hun^. 

U'lufeD  did  )  ou  cease  to  be  her  frieud  l—'Y 
HOK  cragfd  10  he  her  trtend. 

How  long'  after  thi«  was  it  you  had  conversa- 
tion with  Mr,  and  Mrs.  Hoviard  about  tbia  ? 
tod  u|)oo  wtiBt  account  did  you  go  down  there 
la  lllciii  f-*-l  was  going  down  to  Enfield - 
Wsab,  I  cannot  tell  how  long  after ;  1  don't 
kftoif  irbeifaer  it  was  not  that  week.    I  birdl^ 


knew  the  getitleman;  I  have  heard  say  be  is  s 
surveyor  of  the  window- lights  :  [  remember  I 
went  down  to  Mr.  Edward  Aldridge's  at  £d* 
field- Waih  \  when  I  went  out,  I  ivas  desired 
to  take  some  of  the  napers  (her  printed  case  in 
order  for  a  subscription)  to  Mr,  Aldridge  there.. 

Did  you  recommend  it  to  tbein  about  sub* 
scribing  for  the  girl  ?— 1  did  not  deliver  pa-^ 
|iers  :  Mr.  Aid  ridge  took  one  in  his  pocket  with 
hirn,  and  1  went  with  him  to  Mr.  Howard^s; 
we  had  some  discourse  with  him,  but  i  cfto^t 
say  what  it  was  Justly, 

J*ll  put  you  in  mind  of  one  thing  ;  did  you» 
or  did  you  not,  say  you  were  saiisticd  with  the 
girrs  deiicription  she  gave  uf  the  house,  either 
lo  Mr>  or  Blrs.  HoMard  ? — 1  denied  it  from  the 
very  fir^t. 

£lid  you  say  you  thought  she  had  been  at 
the  house,  or  did  you  declure  you  thought  she 
hud  not?— If  I  declared  any  thing  about  it,  I 
declared  she  was  not  at  the  house  ;  whether  1 
did,  or  did  not,  I  am  sure,  if  I  said  any  thing,  I 
said  she  was  not  coutined  there. 

Did  yi^ii  any  ways  recommend  ihis  paper  to 
Mr.  or  IVIrs^  Howard,  or  eudcai our,  with  Mr, 
Ahlridge,  lo  encourasre  the  case? — No  ;  1  only 
left  the  paper  with  hiin  ;  1  did  tiot  encourage 
the  caisie  etiher  one  way  or  other  ;  we  did  talk 
about  the  gypsey,  whether  she  was  there; 
they  could  not  tell  what  time  she  had  beeo 
there.  J  aiked  them,  how  long  they  thought 
she  had  been  there,  Mrs.  Howard  staid,  she 
could  not  call  to  mind  how  long  she  had  been 
there,  but  said,  she  thought  she  had  been  tberc 
some  time,  for  she  knew  her  very  well. 

How  many  papers  had  you  there  ? — I  bad 
but  one. 

How  long  after  the  con  fiction  of  the  old 
woman  was  it  before  you  went  before  my  lord- 
mayor  ?— Mr.  Nash  and  Mr*  Hague  had  been 
there  two  or  three  tiroes  before  I  had  been 
there,  and  they  desired  ivie  to  go  with  them. 

Was  it  a  month  after?— It  was  that,  lobe 
sure. 

How  came  you,  when  yuu  heard  this  poor 
woman  was  reprieved,  upon  ati  informatiou 
made  on  her  behalf,  ivhen  every  body  was  then 
endeavouriiig  to  esplaiu  the  matter,  not  to  go 
be  tore  the  magistrate  in  a  month's  time  ?  Did 
not  you  think  it  a  matter  of  justice  to  go  ?*^ 
When  t  was  called  for,  I  did  :  it  was  no  busi- 
ness of  mine  to  trouble  my  head  about  it  to  go. 

WUk^m  WhiU  sworn. 

White.  J  am  an  officer  under  my  lord  mayor, 
f  remember  going  down  to  Entield>Wash,  ou 
the  Ist  of  February  1753,  to  apprehend  Su- 
saunah  Wells.  There  was  a  warrant  went 
down  before  me  i  I  met  three  getUlemen  there 
with  the  warrant:  1  apprehended  it  was  to  take 
up  mother  Wells,  for  cutting  od'  Elizabeth 
Caniiing^s  inlays :  I  went  over  the  way  to  a 
pubhc- house  ;  theo  somebody  siiid  they  saw 
mother  ^Vells  go  by;  theo  I  said.  Let  lis  go 
over  and  secure  everv  bodv  iik  the  house  :  there 
were  four  of  us,  Mr,  Aoaroson,  Mr*  Wintle- 
bury,  1,  aad  another  person  whotn  I  do  aoi 


395J 


27  GEORGE  IL 


Trial  ofEHifiicih  Canmitgf 


[3 


know:  wcweniihere:  ^vkieu  we  were  in  liie 
par Umr,  Mr,  Ai|ftoi$oii  polokd  to  motber  Wdlsj 
And  t»»iJ,  Thai  \s  she  ;  there  were  two  or  three 
oilier  wiimen  in  the  roam  with  her.  I  imme- 
diately liriiwcd  my  haoger,  Aod  tiaid«  they  were 
atl  |irisoners,  I  put  a  ceairy  over  them,  and 
w^ent  lu  the  other  parL9  of  the  house,  and  took 
«tl  that  were  in  the  house,  and  put  them  ioto 
the  parlour:  mother  Squireii  and  her  two 
dau^hlerc  were  in  a  fore  room  uji  one  pair  of 
ftiaii>s:  Ge^irge  Squires  waii  brttii^'hl  into  the 
mum  bv  some  of  the  people:  1  told  him  be 
must  be  detained.  Gentlemen,  said  he«  look 
over  every  thin*^  that  1  have  here ;  I  turned 
tliein  all  out,  and  the  old  and  young  worueu's 
things  too,  to  took  tor  the  stays,  but  no  such 
ihm^  was  found. 

Mr.  Wiliti,  Did  you  tell  them  the  reason 
of  your  apprehi^ndini];  them  ? 

WhUc.  I  did  nut  just  then ;  I  satdi  there 
was  a  robbery  coiumitted,  and  they  must  not 
go  away  :  1  found  one  of  mother  WtlU's 
dau^Ulers,  and  Virtue  Hall  next,  and  bmug^hl 
them  to  the  rest  Al^er  this,  I  went  into  ihe 
kitchen  on  the  rigbt  hand,  and  looked  round. 
After  that,  [  ^aw  a  woman^s  head,  by  looking 
over  tbe  door  thronirh  a  chasm,  in  a  place  they 
call  tlie  hay- loft.  There  was  at  the  bottom  of 
it  set  en  steps  to  go  up.  I  went  and  felched 
her  down,  aud  put  her  amon^t  the  re«t ;  this 
was  Juilith  Natus ;  she  appeared  to  be  jujit 
getting^  up. 

What  time  of  the  day  might  this  be? — 1 
take  it  to  be  about  nine  in  the  morning.  After 
1  coidd  tind  nobody  else,  I  went  up  inlo  the 
hay-loft  to  tuke  n  view  of  it;  1  just  looked 
round,  and  aaw  the  hay«  and  two  windows, 
io^ue  saddlea,  a  eUesi  of  drawers,  an  old  barrel^ 
ft  musket}  and  a  ttih,  and  a  great  deal  of  lum* 
ber  that  I  can'l  pariicnlarlv  describe. 

How  much  hay  might  tnere  be? — If  it  had 
been  bound  up,  1  believe  there  were  about  the 
"Value  of  13  or  15  trusses ;  it  seemed^  to  have 
laid  there  a  jjreat  v^htle:  t  saw  also  a  tittle 
stoTe  chimney  without  a  grate  in  it.  i  did  not 
etay  to  make  particular  observation. 

Were  there  any  pictures  over  the  chimney? 
*— No,  there  were  none:  I  saw  tbe  bed  Juduh 
Natus  bad  lain  in,  that  was  opposite  the  lire- 
place.  Wbeu  I  had  looked  round  the  room,  I 
was  a  little  surprized,  and  thought  the  trirl  was 
mistaken  ;  so  1  went  out  on  the  outside,  and 
looked  under  ihe  window  that  fronts  the  road, 
Ihe  north  window:  I  could  not  observe  any 
tbtn^  particular  there,  neither  the  footsteps  of 
any  body  droppiug^  from  the  window,  or  print 
of  tlieir  clothes  by  droppiui^  down  ;  it  was  oiay 
ground ;  it  was  so  soh,  that  a  aiep  af  a  dog 
might  make  ao  imprejssion.  There  was  a  heap 
ofbumandung  lay  under  it,  about  as  high  dm 
the  body  of  a  r[uart  bnitle;  there  was  no  ap- 
pearance of  any  body  being  there  for  some 
time  ;  neither  did  it  appear  to  me  as  if  any  tKidy 
bad  been  out  of  that  window  :  I  called  Mr, 
A  dam  son  to  shew  him  ;  he  would  hove  per- 
suaded me  there  were  some  flcraiches  on  tbe 
wail  wiib  her  foot,  bat  1  could  not  gee  auy. 


ui  u   ii[ii 


Was  there  any  pent-houjic  ar  alied  Wtwi 
the  ground  and  the  windoNv  ? —  No.  there  \ 
not ;   the   wall   was  pei  m   tb 

ground.     1  was  in  the  [<  i  .:      ^>iii< 

when  Canning  came  down,  whkh  I  bclid 
waa  about  twelve  or  one  o'clock  ;  she  was  c^ 
ried  into  the  kitchen,  and  set  upon  tbe  di 
opposite  the  parlour ;  she  sat  there  about  li 
or  5vc  minutes. 

Were  ttie  other  witnesfef  there  at  that 
— There  were  so  many  people,  1   caoH 
After  this,  she  wat  earned  up  fttairs  to  wb^ 
fetched  the  gypsey  trom,  but  I  did  not  go 
stairs  with  them  ;  neither  did  I  go  up  into 
hay<lofl  with  her.    The  prisoners  lien 
the  parlour,  it  was  proposed  to  bring 
at  a  time  into  the  kitchea  ;  I  objected 
that,  and  denired  iliey  would  all  go  ba( 
into  tl&e  parlour,  and  let  Cauning  go 
pii  k  Ihe  woman  out  from  aniun;^'  them 
liad  robbed  her  {   I  was  a)  raid  tiouiehiHl 
go  and  giie  a  signal;  then  we  went 
parlour  ;  they  were  all  placed  in  a  cii 
the  iire ;  i  believe,  belore  they  were 
Mary  Squires  was  on  the  letV-liand  si< 
fire;  Wells  sat  with  her  elbOiV 
placet  on  the  right-hand  sid« 
tliey  got  up  to  come  in  one 
this,  their  positions  were  iuo«L  of  Ihein 
and  when  Canning  came  in,  wliich 
be  abore  a  minute  or  two  after,  upon 
cjsion»  Wells  waasbiTt^d,  and  grtuoio 
&ide,  and  Squires  in  Iter  ptace.     Canoii 
upon  the  old  gyp^ey,  as  soon  as  she 
the  middle  of  tbem  ;  the  gypsey  waa  . 
the  corner  stooping,  1  thiuk,  with  a  bli 
net  on.     Canning  said.   That  is   the 
there,  pointing  to  her :  1  saw  ber  fix  her 
immediately  on  that  corner  of  the  room. 

Was  her  face  froutiug  Canning. ^•^^-No,  tt 
cross  tbe  fire-place,  as  1  apprehend. 

Do  you  think  Canning  could  see  her 
then  ?— L  canU  answer  for  tvhat  she  could 
I  be^ggcd  of  her,  hdbrc  she  went  in,  lor 
sake,  to  be  sure  before  she  tinted  upon 

Wti^Mn  did  you  expect  she  would  hail 
upon?^ — I  expecttd  she  would  have  fii( 
mother  VVclls,  before  she  went  into  the 
When  $he  had  tixed  upon  the  gyp&ey, 
her  daughters  got  up,  and  went  to  tbe 
man,  and-  said,  1  bis  gentlewoman  si 
have  robtied  her.     Canning  was  then 
in  tbe  middle  of  the  room  amongst  Ihe 
The  gy psey  woman  came  up  to  ber,  nm 
ed  her  face,  and  said,  Me  rub  you!  I 
saw  you  in  my  life  before ;  for  God  A [ 
sake,    dou*t  s^wear   my  life    away, 
said  there  was  a  robbery  comuntte«l, 
S^pnres  asked  me,  when  the  robliei  y  wi 
mitted?  (his  mother  and  iwo  tkisters  w( 
^vith  him)  I  s^ard,  it  wus  un  Uie  Isi  of  Jauu! 
He  said,  We  were  iu  Ilurtieishire  at  that  tj( 
at  a  place  CiLlled  Abhotiibury  ;  we  wenttbfft 
keqi  our  Christmas.     Then  i  took  an 
tunity  to  find  out  mollierWdtsV  dai 
berstrlf. 

Was  Caaning  preaetit  ?— No. 


SW] 


Jw  Wilful  and  Comqjt  Perjury. 


A.  D.  1754. 


[398 


Hr.  Mort€m.  Then  what  WelIVs  daughWr 
nid,  is  uot  e? idence  afir&inst  the  defcnilant. 

Mr.  WUla.    I  meant  what  was  said  in  Gan- 
iJBg^i  preaeoce. 
^     Widtt.    They  all  said  tliey  were  at  Abbots- 
ksrj,  while  Canning  was  in  the  room ;  that  is, 
iImsoq,  two  daiii^hters,  and  mother. 

Hr.  ffi/Zes.  Did  they  mention  keeping  their 
Cfaristmas  before  Cannm^  ?^White,  No,  they 
did  nut  mention  that  in  the  parlour,  but  they 
did  to  me  before  Canniogf  came  ;  we  stayed 
isBe  time ;  then  we  went  before  justice  Tash- 
■ikerat  Edmonton  with  them  all  in  a  cart. 

CroM-examined  by  Mr.  Morton. 

I  thiok  yon  are  an  officer  in  London  ? — 1 
aa,  bat  I  had  a  constable  there. 

Wis  one  l/on^;,  a  son-in-law  to  mother 
Wdii  M  the  house? — 1  believe  he  was  there 
with  acirt  to  carry  them :  there  were  a  great 
any  yespk ;    1  did  not  know  Lon^r. 

Amr  you  had  collected  the  people  out  of 
all  the  IMS,  you  say  you  went  up  stairs  ? — 1 
did. 

Dfdjso  meet  with  any  obstruction  ? — ^There 
was  t  iMUi  made  some  obstruction,  and  said,  he 
first  see  the  warrant ;  upon  which  1 
:  to  the  eoDStable  and  fetched  it,  and  went 


tae* 

r  r 


!■  whose  custody  did  you  leave  the  pri- 
men? — With  the  people  that  went  down 
with  me ;  the  officer  that  had  the  warrant 
vas  ia  the  parlour. 

When  yoQ  went  down,  did  you  leave  that 
Mialoiie?^-!  believe  he  stood  upon  the  stairs, 
Ifl  I  fetcfaed  the  warrant ;  he  was  at  the  door 
•f  the  room,  but  said  he  would  nolo|>en  it  till 
he  bad  seen  the  warrant. 

Was  that  man's  nameI«ong:? — There  was 
Hi  Lodj;  that  carried  them  to  justice  Tash ma- 
te's; but  whether  that  was  he,  I  cannot  tell. 

The  LoD^  1  mean  is  son-in-lnw  to  Mrf. 
WffVi.~.TheD  I  don't  know  him. 

Were  they  sll  uniform  in  ^ivin^^the  account 
fTkoai^ot  Abbotsbury?-^They  were. 

McMioD  what  the  old  woman  said? — She 
Iriitbe  WHS  at  Abbotsbnrv  on  the  1st  of  Ja- 
mry;  and  Oeorge  and  Lucy  said,  they  were 
Ikre}  and  Mary  said,  she  was  at  her  un- 
chnia  the  Borough  ;  she  said  she  was  there 
•Chfistmts. 

Too  say  Adamson  and  you  had  no  other  con- 
fgUm  hat  that  mother  Wells  was  the  thief  ?^ 
We  did  think  so. 

Wis  there  any  shewing;  any  body  to  Can- 
>h|,  iPhen  she  came  in  f — no,  Sir,  not  as  I 
■*;  shOi  of  her  own  accord,  voluntarily 
NkI  oat  Mrs.  ffqoim  as  the  person  thaVcut 
«fbcrslty«. 

Mr.  Davy,  We  shall  now  produce  several 
*itaMs,  who,  atTarious  times,  during  the 
I'iMhof  Jflmnry  1758,  wove  in  the  very  room 
^vUch  the  defendant  swore  she  was  confined. 

Fartum  Nalus  sworn. 
Kihff.   f  life  at  Woltbta-Gross,  when  I 


am  at  home ;  I  have  lived  there  almost  two 
years. 

Mr.  Davy.  Were  you  there  liefore  the  year 
1752  P — Naius.  I  was  there  a  good  while  before 
that. 

Did  you  ever  live  at  Enfie!d-Wa!th.  and 
when  did  you  come  there  ? — On  the  Monday 
fortnight  after  my  lonl-muyoi  *8  day,  of  air 
Crisp  Gflscovne's  mayoralty,  I  came  from  the 
Wheat-sheaf  at  Waltoam -Cross,  and  went  to 
lodge  at  Mrs.  Wells's  house  at  Enfieia-Wasb. 

Are  yon  a  married  man? — 1  am,  ISir;  my 
wife's  name  is  Judith  ;  she  lived  with  me  ail 
the  time. 

In  what  nmm  did  you  lodge  at  Mrs.  Wells's  t 
—In  a  room  properly  called  the  workshop; 
that  is,  the  room  that  goes  up  out  of  the  kit- 
chen, about  seven  or  eight  steps  to  go  up. 

Is  it  a  long  or  square  room  ? — It  is  a  long 
room,  no  squareness  belongs  to  it,  with  a  |)an- 
tile  roof. 

How  many  windows  are  there  to  it  ? — There 
are  two ;  one  facing  the  feet  of  my  l>ed,  it  was 
a  single  casement ;  and  the  other  at  the  farther 
end  of  the  room,  upon  the  letl  hand  as  I  lay,  t 
larger  than  the  other,  one  half  boarded,  and 
the  other  half  glass,  looking  into  the  great  road ; 
and  there  was  a  chimney  facing  the  foot  of  my 
bed,  on  the  right  hand  side,  in  the  comer  of  the 
room  next  the  little  window. 

What  was  your  bed  ?— It  was  made  of  hay 
and  straw  mixed  together. 

Had  you  any  pillow  or  Imlstpr,  and  what 
was  it  made  of? — I  had  a  sack  of  wool  for 
my  bdlster. 

Dill  your  wife  lie  with  you  on  this  be<l  ? — 
She  did,  tSir. 

Mention  the  furniture  of  the  room  ? — When 
I  came  first  into  the  room,  there  was  pretty 
nigh  half  a  load  of  hay,  as  nigh  as  I  can  guess ; 
a  large  chest  of  drawers  on  the  lef\-haod  side, 
about  halfway  in  the  room ;  two  or  three  side- 
saddles, one  man^s  saddle;  a  large  box  that 
had  some  pollard  in  it,  it  was  a  dccpisli  drawer, 
and  formerly  did  belong  to  the  chcbt  ofdrawers ; 
a  tub  to  hold  some  chaff  for  Mrs.  Wells's  horse, 
and  a  tub  with  some  iron  hoops  on  it ;  an  old 
gun,  and  a  barrel  of  a  gun  besides ;  the  gun 
stood  in  the  corner  upon  some  pantiles ;  an  old 
lanthom,  an  old  spit,  and  an  old  cross-cut  aaw« 
that  stood  upright  in  the  chimney  ;  there  were 
pullies  and  a  line  that  belont^^ed  to  a  jack,  that 
came  through  the  bole  at  tlic  right  hand  of  my 
bed,  over  my  head  ;  the  hole  the  line  came 
through  was  large  enough  to  put  three  of  my 
fists  in,  and  about  a  foot  in  length  ;  I  used  to 
put  a  wisp  of  hay  in  it  to  keep  out  the  cold  ; 
there  was  also  the  sign  of  the  Crown  there,  al- 
most at  the  feet  of  my  bed. 

Was  the  si  cm  made  of  wood  or  copper  ? — ft 
was  made  of  wood. 

Was  there  any  grate  in  the  chimney  ? — Ko, 
there  never  was  a  grate  in  the  room  since  I 
knew  the  house. 

Did  you  observe  any  thing  else  in  the  room  ? 
— I  observed  a  bar  there,  that  belonged  to  the 
bar  in  the  kitchen,  where  the}-  used  to  keep  ai 


SBBf]  27  GEORGE  H. 

tborli^Mr;   iiwatoU,  Mtbey  brtofblitap 


TfmltfEHsmkA 


UTtfe  there  any  pictum  ia  the  re«B  ?^I 
Bet cr  Mw  a  picture  is  the  nam  m  Bf  life. 

What  wat  over  the  ehimnej  ? — ^'rhere  was 
aa  old  iroo  eaaMBcvt  oa  the  lopef  the  chuBBcj ; 
it  waa  all  iroo,  ao  gta»aft  all,  ta  the  best  of  aiy 


Waa  there  aay  lead  ia  it  ?— There  waa 
lead  ia  ity  aa  1  thjafc,  oaly  the  fnuae  of  a  cai 


How  loaf  did  joo  lodge  there  ?— 1  lodged 
there  tra  wceka ,  all  but  three  daja,  aad  io  do 
other  place  bat  this  room.  I  lay  out  of  it  but 
oae  aight  ia  all  the  tioie,  that  waa  oo  a  Wed- 
Dcaday  aight;  lay  wife  aever  Uy  a  aight 
mit  of  it  ia  that  time,  except  that  night  J 
caa't  tell,  1  aot  beiog  there. 

Waa  the  qoaotily  of  hay  decreased,  whea 
yoo  lodged  there  ? — It  was ;  they  kept  a  horse, 
aad  iMdsoiDe  for  him  out  of  it  constaotly,  al- 
■MMt  erery  day. 

How  much  bay  might  there  be  left,  whea 
yoa  last  lay  there? — It  might  be  the  Taloe 
•f  tea  or  tweWe  tnissca,  if  it  bad  beea  tied  op. 

Was  any  of  tbe  foniiture  of  the  room  takea 
oat  while  yoo  were  there? — No!ie  at  all,  but 
the  siga  of  tbe  Crown,  that  was  boogfat  by 
Ezra  Whiffin. 

When  did  he  boy  that  ? — I  eanaot  justly 
say  that ;   1  di«l  not  see  him  take  it  away. 

How  do  yoa  know  that  he  bouj^t  it  ? — 
Because  he  has -now  got  it  haogiog  ap  at 
his  door.  There  was  a  large  piece  of  wood 
under  the  foot  of  my  bed,  and  some  irons  in  it 
that  belonged  to  the  sign ;  be  has  had  them 
sin«:e  be  booghttlie  sign,  and  the  piece  of  wood 
is  ia  tbe  chamber  now.  I  was  there  new  and 
old  Cbristmas,  and  all  tbe  month  of  January, 
till  1  was  taken  up  on  the  3d  of  February. 

fyxik  at  that  young  woman,  (meaning  Can- 
ning) did  you  ever  see  her  there  in  January  ? 
— 1  don't  know  any  thing  of  her;  I  nerer 
saw  her  in  the  house,  or  at  the  house;  1 
odIv  had  a  glimpse  of  her  at  justice  Tash- 
maker's;  when  they  were  taken  up,  I  was 
at  work,  and  was  sent  for  home. 

Did  ao^  body  besides  your  wife  and  your- 
self go  mto  that  room? — Yes,  one  John 
Howit,  Mrs.  Welb's  son ;  he  came  there  for 
some  pollard  to  feed  his  mother's  sow  and  pigfs 
with,  and  several  timea  for  hay,  when  i  was 
there ;  and  Sarah  Hnwit,  his  sister,  she  often 
csme  for  poUanl  to  serve  the^igs ;  she  almost 
always  lived  at  home  :  1  have  seen  the  widow 
Long  there ;  her  maiden  name  was  Elizabeth 
Wells  ;  1  have  seen  her  there  several  timea  in 
the  month  of  January  ;  there  are  two  Longs ; 
one  of  them  is  Mr.  Long's  own  daughter,  she 
never  was  there :  I  have  seen^trtue  Hall  in 
that  room. 

Did  Virtue  Hall  lodge  in  tbe  bouse  ?--She 
was  a  lodger  there  before  1  knew  the  house,  in 
one  of  the  best  chambers. 

Do  vou  remember  when  the  grpaev  first 
came  there  ? — 1  caanot  well  remember  the  day 
paDCtuAlly  that  they  camt  thtrt;  they  came 


MeatioB,  if  ya«  eaa, 
several  people  lay  ia?— 4 
of  them,  becaaae  1  aever  waa  laaeh  ia  them: 
rirtoe  Hall  lay  aki^.wiih  Mrs.  Wella:  I 
had  beea  ia  the  fooooi,  boi  aever  to  tafa 
moch  ootice  of  them. 

Describe  tbe  several  roooss  Io  which  thi 
stair-ease  leads. — ^Thevc  was  oae  room  on  thi 
teft-haod  side  the  stair-case;  there  Mrs.  Welh 
aad  Virtue  Hall  lay  ia  one  bed,  I  bebeve ;  the 
old  gypsey  lay  ia  a  room  opposite. 

Where  did  George  Squires  lie?— I  dM^ 
kaow. 

Have  you  aay  particalar  reasoa  for  nmmh 
beriag  the  tioie  of  the  gypaey'a  coum^  ts 
Wells's  boose?— I  am  ao  way  a  exact  io  ths 
day,  but  by  reason  she  kMiked  ao  firightfiil,  thift 
I  did  aot  care  to  he  al  tbe  fire  with  her. 

Had  you  ever  seea  Mary  Squires,  or  her 
aon,  or  daughters,  before  the  tiaie  yaa  assa- 
tioo  ? — No,  1  never  had.  Sir,  ia  all  the  coarse 
of  my  life. 

Do  YOU  kaow  who  came  to  Eafiey-Wask 
with  Mary  Squires  ?— No,  I  doo*t,  heeanse  I 
was  thea  at  work ;  her  soa  aad  two  daughlen 
lodged  there  all  the  time  she  diil. 

Did  they  board  ia  the  house?-*-Noi  tbej 
went  to  the  shops  to  buy  their  victuals ;  thcr 
were  aeouaiated  with  Mrs.  Lara^,  who  siM 
butter,  cheese,  bread*  aad  bacoo;  abe  Uva 
about  two  stones-cast  from  Mrs.  Wella'a  boasCi 

Is  she  a  married  woman  ?—She  is ;  berhm- 
band  is  a  bricklayer,  1  thiuk,  oanied  Joha. 

Do  you  remember  any  pitcher  in  the  house? 
—I  remember  one  very  well ;  it  was  a  largiib 
black  pitcher,  broken  about  tbe  moutb  ;  «J 
wife  made  use  of  it  over- night,  before  we  wen 
taken  up,  to  fetch  water  ftom  a  pump  over  lbs 
way,  at  Mr.  Howard's,  for  my  sUpper :  Viitss 
Hall,  and  Mrs.  Wells,  and  Sarah  Howit,ast4 
to  go  there  for  water. 

Do  you  remember  any  bed-gown  Mrs.  Wdh 
had  ? — No,  i  don't  reosember  she  ever  hd 
any  at  all. 

Look  at  this  pitcher,  handkerchief,  and  brf* 
gown ;  do  you  know  either  of  them  .'—II 
swear  to  the  pitcher,  that  is  Mrs.  Wells's;  I 
never  saw  the  handkerchief  and  bed-gowa  ii 
my  life. 

Do  you  remember  one  Robert  WhiteosmiBf 
to  Wells's  house?— I  do;  he  used  to 


there,  as  far  as  i  know,  under  preteoes  ^ 
courting  Sal  Howit,  almost  every  night;  I 
have  known  him  five  or  six  years;  be  bi^ 
seen  me  go  to  bed  in  that  room  several  nigbtii 

Cross-examined  by  Mr.  Nara, 

What  is  your  business  ? — I  am  a  pMr^ 
bouring  man. 

Where  have  you  been  since  yon  werstrf^ 
up?— I  have  been  at  work  at  Mr.  BallX  ^ 
tha  Four  Swanii  at  Waltham-Crots. 
1 


401] 


^  WUfid  and  Canrupi  Perjury. 


k.  D.  175i. 


[402 


Did  you  work  for  bim  before?— No,  I  did 
iot,Sir. 

ire  yoo  eore  tbis  is  tbe  pitcher  that  used  to 
fo  ••  often  to  the  pomp  .'—This  is  it. 

How  eeme  you  to  go  to  life  at  Enfield- Wash  P 
«-I  went  there  from  London,  being  hired  by  a 
Aimer  at  Waltbam-Croes,  and  1  could  not  hare 
CMMtaot  kNlging  there. 

Who  directed  you  to  mother  Wells's  house  P 
—A  man,  whose  name  is  Payne^  and  my  wife, 
vcat  and  asked  for  lodging ;  1  was  to  pay 
■ioe-penee  per  week. 

Why  did  not  you  lodge  in  the  other  part 
if  tbe  home  P— There  were  uo  rooms  empiy 


Win  not  there  a  garret  empty  P — I  don't 
kaaw,  I  never  was  op  them. 

Were  not  you  sometimes  disturbed  of  your 
mt  by  people  making  a  noise  in  the  kitchen  P 
— Tbcy  eould  not  come  into  the  kitchen  but  I 
Ciali  hear  them  ;  I  very  seldom  heard  much 
asiae;  asoietimes  1  slept  almost  all  night. 

Wlimtine  flo  the  family  use  to  go  to  bed  P — 
Thefiwilr  generally  goto  bed  betwixt  nine 
mi  m  oxlMsk ;  1  never  knew  any  harm  by 
tbe  ftowa;  the  people  that  belong  to  the 
btaae  hare  got  a  very  bad  character ;  but 
ftiB  wbat  1  know  of  it,  I  never  saw  any  harm 
■I  it ;  and  it  is  a  very  sober,  honest  house  ;  I 
■srer  saw  any  ill  tricks,  or  irregularity,  all  the 
tine  I  was  there. 

What  time  of  the  day  did  Robert  White  use 
li  come  P— He  used  to  come  when  he  left  off 
Mi  day 'a  work,  may -be  about  six  or  seven 
iUfick. 

How  long  did  he  use  to  stay  P— May- be  two 
hnn,  sekh>m  longer. 

Waa  there  any  other  lodger  there  besides 
}•■?— Virtue  Hall  was  another. 

Wbat  did  she  use  to  do  for  a  living  P — She 
Mdiaapin. 

flin  was  a  Tery  industrious  girl ;  was  she 
Htf-*1  cannot  say  for  that,  she  used  to  work 
Wta  little. 

On  you  remember  when  the  sign  was 
Mriidont  P— 1  cannot  say  when  it  was  really : 
Ida  not  aay  what  time  I  missed  it,  but  only  1 
MMndier  ita  being  there. 

What  time  were  the  sign-irons  carried  out  ? 
Vbcy  were  not  carried  out  till  some  time  in 
iMary,  before  1  was  taken  up. 

How  kmg  before  you  were  taken  upp — ft 
■ty  bn  mora  than  a  week  or  ten  days  be- 
ftre. 

Mow  I  would  ask  yon  whether  you  were  in 
•■panT  with  Arthur  NowitP — I  have  several 
iMs;  I  have  work'd  for  him. 
^  Oi  you  know  one  John  Jackson  P — T  do  ;  he 
■t  fanner,  and  lives  about  a  mile  out  of  Ware 

Do  yon  know  William  Hubbard  P— I  cannot 

Did  yon  ever  take  an  oath  upon  this  affair  P 
—Tbe  first  I  ever  took  was  before  sir  Crisp 
fcwnjiaa,  at  tbe  Manaion-  house. 

How  hng  if  that  ago  t^  cannot  recollect 

VOL.  XJZ. 


Do  you  think  it  is  more  than  six  montbt 
ago  P— It  must  be  more  than  that. 

Are  you  sure  the  girl  never  was  in  (bat 
room  P— Yes,  Sir,  I  am,  the  time  i  lodged 
there,  which  was  ten  weeks  all  but  three  days. 

Did  you  ever  fall  in  company  with  Mr. 
Newit  after  thisP — Yes,  several  times. 

Do  you  remember  what  conversation  pass- 
ed P — He  has  taxed  me  several  times  wjth 
sweariiiff  false,  and  offered  to  lay  a  wager  that 
1  lodged  in  another  house  at  £nfield-Washy 
besides  mother  Wells's. 

Was  ever  such  a  wager  laid?— I  believa 
there  was :  but  what  I  said  was  truth. 

What  was  the  wa^er?— I  believe  it  was  a 
shilling  a- piece,  1  thmkso ;  but  it  was  drawn, 
because  he  found  he  was  wrong. 

We  have  those  present  that  can  give  an  ac* 
count  of  it,  so  be  careful :  say  whether  oi^  not, 
upon  that  conclusion,  you  did  admit  you  had 
lodged  at  another  house? — No,  gentlemen,  I 
am  come  here  to  speak  the  truth  ;  I  never  did 
admit,  in  their  presence,  that  I  lodged  in  an- 
otiier  room,  or  m  another  house. 

Did  you  never  admit  ^ou  had  lost  your 
waurer,  and  that  you  had  laid  in  another  room  P 
— f  never  did  admit  it ;  I  did  not  lose  thn 
wager  at  all,  because  it  was  drawn. 

By  Mr.  Deny, 

Mr.  Batif.  When  were  you  applied  to,  to 
lay  this  waiter  ? — F,  Natus,  It  is  about  a 
quarter  of  a  year  ago. 

W^herc  was  this  ?— It  was  at  Mr.  Bell's  house 
at  the  Four  Swans  at  Waltham-Cross. 

What  was  the  wa^er  ? — J  cannot  say  what 
monev  was  laid,  I  down'd  with  my  money 
myself. 

Who  was  in  the  room  at  that  time  ? — ^Thern 
were  several  people  there  drinking  ;  I  cannot 
say  whether  they  were  common  men  or  gen<- 
tlemen. 

Was  the  money  staked  ? — 1  cannot  say  whe- 
ther it  was  a  ahiliing ;  the  money  was  staked 
down. 

Who  held  the  stakes  P— I  don't  know. 

Did  Mrs.  Bell  hold  it  P— f  don't  know  that 
she  did ;  1  will  not  be  sore  of  that ;  I  had 
some  of  mine  again. 

Why  had  you  it  not  all  again  P— I  paid  for  n 
decanter  of  beer  out  of  it. 

Did  Mr.  Newit  pay  for  any  out  of  itP— Ht 
paid  for  none. 

Did  you  drink  part  of  the  beer  f — I  did,  Sir. 

Were  you  here  upon  the  trial  of  Mary 
Squires? — I  had  a  subpcena,  and  did  come, 
and  was  in  the  Old-Bailey  yard,  and  up  near 
the  door. 

What  prevented  your  coming  into  court  to 
give  evidence? — Because  I  was  not  called; 
none  of  the  witnesses  were  called,  never  a  one. 

Was  there  any  other  reason  ?— No  other 
reason,  but  they  were  not  called. 

Were  you  not  assaulted? — I  was,  at  thn 
place  that  turns  out  of  the  Old-Bailey  yard, 
three  or  four  times,  and  1  ihawed  my  iub* 
pcena. 

9D 


403] 


27  GEORGE  11. 


h 


IVho  ussnulled  you? — There  frai  a  latJiih 
Eniti  ihat  kept  ihe  gute,  pUteii  very  much  with 
the  smatl  prix«  he  uas  the  only  periiOD  that 
turtiPil  me  out  of  the  yird, 

0id  any  other  pe»r*on  use  you  ill  F — Ther« 
were  several  other  people,  but  mue  touched  me 
to  turn  me  out. 

Were  you  alone  ?— 1  was  with  the  otHier 
witne89F!! ;  they  stood  upen  the  steps  ;  two  or 
three  ol  theui  were  turned  out  of  the  yard. 

U'hat  were  the  other  witnesses  attending 
for  ? — For  the  same  as  I  dlil. 

What  are  their  names? — 1  cannot  say  half 
their  namea* 

Name  some  of  them.-^There  was  the  widow 
LoUK  WHS  one ;  they  wanted  to  mob  her. 

Bfr.  2Varff>  1  must  obsuuct  this;  this  does 
no  wayi  atfict  Canning,  if  it  was  the  neglect 
of  I  he  officers ;  it  cannot  he  proved  Ihat  she 
was  privy  to  it. 

Judilh  Natut  sworn. 

J.  Natut*  The  last  witness  is  my  hutliand ; 
he  does  husbandry- work  j  he  did  work  for  Mr. 
Pbvaeat  Walt  ha  til  Cross  ;  and  we  thL>n  lodged 
at  Mrs.  Arnold'!},  a  fortnight ;  she  bid  us  pro- 
Tide  ourselves,  heirause  we  were  very  poor ; 
and  at  the  fortnight^s  etid  we  came  to  Mrs. 
Wells's  house  at  Enfield-Wash^  where  we 
lodged  ten  weeks  all  but  three  days,  before  we 
were  taken  up ;  1  cannot  tell  tbe  day  of  the 
month  when  we  came  there. 

51  r*  Milte$.  What  month  was  it  inF — 
X  Natus.  i  cannot  tell. 

Was  it  in  September,  October,  NoTember,  or 
I>€ccmber?—  I  cannot  tell. 

Was  it  before  oew  Christmas-day  f — It 
was. 

How  hng  is  it  ago  ?-«Upon  ray  word  I  can- 
aot  icllf  because  1  am  no  acholar* 

During  the  ten  weeks  all  hut  three  days, 
how  many  nights  did  you  lie  out  of  that  hou?!ef 
—I  never  lay  out  of  it  one  night  during  Ihe 
whole  time  ;  tny  husband  lay  out  of  it  oue 
night,  and  but  one. 

Wlmt  room  did  you  lie  in  ?— We  lay  ia  a 
room  I  bey  call  the  workshop. 

In  what  part  of  Ihe  bouite  is  it? — They  go 
through  the  kitchen,  and  up  eight  stairs,  as 
near  as  I  can  guess  ;  our  hed  was  of  hay  and 
itraw^  on  the  right  hand  going  up  ;  we  had  a 
tack  of  wool  for  our  bolster. 

Oq  w  hich  side  was  the  head  of  your  bed  ?»* 
U  looked  Into  the  kitchen. 

Was  there  any  hole  near  your  hed  ?• —Yea, 
tliere  was  one  at  the  head  of  the  bed  ;  we  used 
to  stuff  it  with  hay  to  keep  the  cold  out ;  it  was 
there  before  we  came  there. 

Where  did  that  hole  look  into,  when  it  ivas 
nut  Bio(«ped  np? — It  looked  into  Uie  kitclien. 

Desirtbe  the  room ;  is  there  any  chimney  in 
it  ?— There  iu,  and  a  casement  over  it. 

What  do  you  mean  by  a  casement  over  itf»— 

There  was  an  old  casement,  all  to  pieces  al- 

noft,  over  the  chimney,  when  we  came  Into 

Ibt  room* 

Was  titere  any  glais  in  it  f--Tbere  might  be 


TkIoI  of  Elizabeth  Canningf  [VA 

I  aliout    half  a   caiement,  not  mocli  ^u$  lo 

signify. 
I      Was  there  any  grate  in  tbe  chimna^  ?— Ho, 
there  never  was  for  the  time  I  was  there. 

Was  there  any  chest  of  drawer!  ? — ^There 
was  a  nest  of  drawers,  which  1  used  Co  pot  my 
bread  and  cheese  in,  because  the  mice  abouM 
not  run  away  with  the  cheese. 

Was  this  chest  of  drawers  on  tbe  right  fit 
left-hand  side  of  your  hed? — Tbey  merem 
Ihe  left-hand  side. 

Was  the  hole  you  used  to  stop  with  bay  of 
any  use?*--No,  none  at  all. 

How  big  was  it  ? — It  was  about  as  big  isay 
two  double  fisrs. 

What  was  hung  over  Ibis  hole?— Tbe  jack* 
tine  that  was  at  the  head  of  my  hed. 

Then  cannot  you  tell  the  use  of  the1»oleP— 
I  believe  it  was  for  the  jack-line  to  go  tbroogfii 

Pray,  what  other  furniture  was  there  in  the 
room  ? — I  believe,  as  nigh  as  1  can  gtl«M^ 
there  was  about  half  a  load  of  hay,  tbal  ntf 
there  before  we  came. 

What  was  there  in  the  room  besitef* 
There  were  pan  tiles  at  the  farther  end  ^Ifci 
room,  which  had  laid  there  before  weeanu; 
an  old  spit,  and  an  old  lanthorn,  just  by  tb 
chimney  ;  one  man'ti  siddle^  and  two  women'i 
saddles;  there  was  a  saw»  and  a  tub  whidt 
Mrs.  Wells  used  to  put  cbafF  in  for  the  horse, 
and  a  box  that  she  used  to  put  pollard  in  for  tilt 
|iigs»  that  stood  on  the  left-hund  side. 

Did  she  use  to  keep  pigs?— Yes,  Sir,  iki 
did,  in  a  httle  sort  of  a  wash-house.  She  aael 
to  go  into  the  room  for  pollard  every  day,  iOil 
feeS  tbem  with  it.  There  was  a  tiga  of  i 
Foniitain  there ;  it  stood  in  the  room  before  wt 
came,  behind  a  tub  where  the  chaff  was. 

Was  there  ever  a  gun  there  ?— Yea,  tbiM 
was  a  gnn. 

Mr.  Nares.  Don^t  pot  words  into  Iter  momk 

Mr.  Witlet.    Was  there  one  sign  or  two  ? 

/.  N^itut*  There  were  two,  the  Fatialiia 
and  the  Crown. 

Where  was  the  sign  of  the  Crown  f  — TbfJ 
stood  together^  fronting  you  as  you  go  Uf« 
Mr.  Wtiiftio  bought  the  sign  of  the  Crowa  be* 
fore  old  Christmas;  the  irons  that  belongailW 
the  sign- post  went  at  the  feet  of  my  bea,  lo' 
he  bought  them  :  he  took  them  away  about  • 
werk  or  a  fortnight  before  we  were  taken  opt 
as  iiigKi  as  1  can  guess. 

How  long  bad  Mrs.  Squires  lo<lge<l  thef^ 


before  she  was  taken  up  ? — She  had  kidgw 
there  a  week  and  one  day 


nail  lougvi 
tf— I  do;  I    1 


Do  you  know  George  Squires 
never  saw  hini  in  my  life  before  he  caoie  to 
lodge  there:  there  were  two  daughter*,  wici< 
nanved  Lucy. 

Where  did  they  use  to  lie?— They  used  to  i 
lie  up  stairs  lu  the  other  part  of  the  house  ;  ski  ■ 
and  her  two  daughters  lay  in  a  chamber  ovtf^ 
the  parlour. 

Were  there  any  other  young  people  hi  ibi 
house  ? — Th^re  were  nobody  at  all  in  the ' 
but  them  and  ourselves. 

to  what  room  of  the  house  did  Tirtue  01 


MS] 


Jbr.WUfutand  Corrupt  Perjury, 


A.D/1764. 


[406 


Wfef— lo  tiia  room  fronting  the  stairs,  near 
vbere  the  gypties  lodged. 

Had  there  been  any  use  made  of  ibis  hay  P— 
IW  used  to  fetch  it  for  the  horse. 

Who  used  to  fetch  it?— Sal  Howit;  she  is 
Mis.  Welfe's  daughter;  and  Mrs.  Wells  her- 
irif,  and  Virtne  Hall  used  to  fetch  some,  and 
jWMtimw  pollard  for  the  pigs. 

How  came  Sal  Howit  to  be  Mrs.  Wells's 
dwdbttrP— Mrs.  Welk  bad  two  hasbaods. 

How  was  this  house  supplied  with  water  P— 
Hwifrimiis  w*  fetched  it  tirom  a  gentleman's 
faap  liroin  over  the  way. 

Leak  at  tbb  pitcher.— I  cannot  swear  to  the 
fjlefaer  \  but  1  baFC  fetched  water  myself  many 
aiiM  ID  such  a  Made  pitcher ;  1  think  it  was 
Bitlroke  so  much  at  the  mouth  as  it  is  now : 
•M  ■•▼  be  like  another :  I  cannot  say  it  is  the 
mm;  1  Ikiak  it  was  not  quite  so  bi^  as  this, 


k  upon  this  bed-gown,  examine  it  well 
•^ia;  1  Deter  saw  this  in  my  life, 


I  and  took  i 


I  up 


Mrs. 


before 
Wells  had  no 


LMktt  Ibat  young  woman,  (meaning  Eli- 
alrtbCkMHng)  did  you  erer  see  her  at  Mrs. 
WdM?>~l  nerer  did,  before  she  came  with 
( us  up,  if  that  was  the  last  word  I 


Lsak  at  tbb  handkerchief;  do  you  know  it? 
*•!  BtPor  saw  it  in  my  life  before. 

Wots  yoa  subpcsoaed  at  Squires's  trial,  ia 
niv  la  giTe  efidenoeP — I  was;  but  they 
Virii  aat  let  me  come  in. 

Yaa  were  taken  up  with  the  rest,  were  you  P 
«-l  waa,  and  carried  before  justice  Tashmaker, 
■i  fram  thence  to  justice  Fielding.  Canning 
cfaind  me ;  abe  aaid  she  never  saw  me  before. 

Bid  yoa  gire  the  same  account  as  you  do 

Mr-:idid: 

Croat-examined  by  Mr.  Williams. 

M  aha  charge  vou  with  any  thing  when 
fiawere  taken  up  r-«-No,  she  did  not. 

Did  she  charge  Mrs.  Wells  at  all  ?— No,  she 
iiast 

M jraa  bear  her  say  Virtue  Hall  was  by, 
vbai  lira.  Sqnirea  cut  tne  Ucing  of  her  stays? 
^Iwaootaay  I  beard  her  say  it. 

What  eouatrymaa  is  your  husband  ? — He 
MMs  fimn  Oloucesterahire. 

Fron  wbenea  are  youP-^1  was  bred  and 
i«i  it  Ware  in  Hcrtfordabire. 


Fridat,  JftfyS. 
Afery  Lamey  awom. 

liraar.  I  live  at  £nfield-Wash,  and  keep 
I  chaadur'a  afaop.  1  have  known  Fortune 
Nitas  and  bia  wifaaone  conaiderable  time; 
1^  bare  bought  goods  of  me,  that  is,  bread, 
Mer,  cbaaae  and  oeer. 

Mr.  Haey.  When  was  the  first  time  you 
tittmrtlMnr 

LwtMy.  It  waa  adoia  tiiae  after  Michael- 
Ms  was  lwflve*mootb»  between  that  and 
II    ftimwi  i  I J  UdgiiatMjw,  Wel^i  houip. 


Did  you  ever  hear  them  say  in  what  part  of 
the  house  they  lodged  P — No,  1  nerer  did,  in- 
deed. 

How  long  did  thev  remain  there? — ^They 
remained  there  after  the  time  they  were  taken 
up,  for  they  came  back  after  that. 

Do  vou  remember  any  other  lodgers  Mrs* 
Wells  had  in  her  house  P—Virtue  Hall  use«l  to 
come  sometimes  for  things,  and  1  remember 
the  gypsies  coming. 

When  was  the  first  time  of  your  seeing 
themP — It  was  on  a  Wednesday;  and  the 
Thursday  was  se'nnight  after,  in  the  mojming, 
they  were  taken  up. 

When  you  saw  the  gypsies,  how  many  of 
them  were  there  ? — Lucy  was  the  first  1  saw 
of  them ;  she  knocked  at  my  door,  and  asked 
me  if  1  sold  small  bre^,  on  the  Wednesday  ; 
I  said,  Yes ;  1  sold  her  a  loaf  and  some  cheese 
and  smalUbeer,  and  lent  her  a  pitcher  to  carry 
it  home ;  (I  lire  opposite  Mrs.  Wells's  house) 
in  the  evening  of  the  same  day  old  Mrs.  Squires 
came.  George  brought  the  pitcher  home  the 
next  morning.  He  or  the  sister  came  every 
day  till  they  were  taken  up,  and  had  thingp  of 
me,  and  sometimes  the  old  gentlewoman  for 
tobacco ;  I  saw  them  commonly  two  or  three 
times  a- day ;  that  very  morning  they  were 
taken  up,  they  had  tea. 

Whatisyour  husband's  name? — His  name 
is  John  Larney ;  he  is  a  bricklayer. 

Do  you  know  whether  Mrs.  Wells  keeps  any 
cattle? — She  keeps  a  horse  and  a  hog. 

How  long  have  yon  known  her*?— I  have 
known  her  almost  forty  years;  oyer  since  1 
can  remember. 

With  what  did  she  use  to  feed  her  horse  ?—  * 
1  have  seen  them  fetch  grains ;  and  I  knovr 
she  bought  hay,  for  1  saw  it  brought  in,  and  by 
the  badness  of  the  weather  it  was  spoiled. 

When  was  it  brought  in?— In  the  season- 
able time  of  hay-makmg,  before  last  Christmas 
was  twelve-month. 

Where  did  she  put  it  ? — As  she  said  then, 
she  put  it  into  the  room  called  the  shop. 

Mr.  Nares.  I  object  against  that,  as  legal 
evidence. 

Mr.  Davy.  I  am  not  asking  any  thing  Mrs. 
Wells  said  Hince  1759,  but  what  she  said  be- 
fore, when  it  was  impossible  for  her  to  know 
of  this  affair,  when  it  cuuld  serve  no  purpose  to 
speak  falsely ;  that  is  evidence. 

Mr.  Nares.  There  is  one  plain  rule  as  to  the 
evidence  of  hearsay ;  that  is,  that  when  you 
can  have  that  very  person  that  proves  this 
very  fact,  she  is  the  person  to  he  called ;  this  ia 
not  evidence  at  all. 

Court.  The  Court  are  of  opinion  that  it  will 
be  proper  for  Wells  to  give  her  own  evidence. 

Mr.  Davy.  Were  you  ever  in  this  workshop 
at  Mrs.  Wells's  T-^Lamey.  No,  not  till  after 
the  people  were  taken  up. 

Do  you  remember  seeing  any  hay  carried  to 
the  house  after  that  time  you  have  mentioned  P 
—-No,  I  do  not 

How  much  waa  brought  there  in  the  year 
1759?— fit  waf  kNM  upon  the. cart;    1  aon't 


407] 


27  GEORGE  IL 


Trill/  ofEUgabeth  Canmngf 


[401 


know  how  much  there  was  of  it ;  I  saw  it 
carried  to  the  door,  but  did  not  see  it  put  into 
the  workshop. 

What  door  did  yon  see  it  carried  to  ? — ^To- 
wards the  stable  door,  as  they  call  it. 

Near  what  part  of  the  house  is  the  stable? — 
The  lower  part  towards  London ;  it  lies  in  a 
line  with  the  house. 

Is  there  any  loft  over  the  stable  ? — ^Not  as  I 
know  of. 

To  what  part  of  the  house  was  this  hav  car- 
ried ?— I  saw  it  standing  against  the  stable. 

Did  you  see  it  unloaded  P — No,  I  did  not. 

Cross-examined  by  Mr.  Morton. 


gether;  they  came  on  the  Wednesday,  an 
were  taken  up  the  Thursday  se'nnifl:ht  after. 

Look  at  that  pitcher;  do  you  know  it?- 
Tbere  was  a  pitcher  that  used  to  go  frequently 
to  Mr.  Howard's  pump. 

Is  this  the  pitcher  ?— I  ^annot  tell ;  it  was  i 
black  pitcher. 

Did  you  live  there  the  time  Fortune  Natn 
and  his  wife  wero  there  ? — 1  did. 

What  time  did  they  come  P— I  cannot  laj 
at  what  time  they  came. 

How  k)ng  were  they  there  before  Mary 
Squires  came  ? — O !  a  |rreat  while;  they  wen 
there  the  time  Squires  was  there,  and  the  tnM 
that  Canning  said  she  was  confined  then; 


in  a  cart,  and  drawed  up  to  the  atable  which 
rangea  along  with  the  house ;  J  saw  no  more 
of  it. 

What  countrywoman  are  you?^-I  was  bom 
and  bred  at  Cnfield-Wash. 

How  lunuf  has5Irs.  Wells  liTed  in  that  house? 
— 8he  lived  there  before  I  can  remember. 

A  good  sort  of  a  house,  was  it  not  ? — I  did 
not  frequent  the  house. 

What  is  the  general  reputation  of  the  house? 
—1  suppose,  by  the  report,  you  know  what  a 
house  it  was. 

Mr.  Duvy,  We  will  suppose  it  to  be  a  most 
infamous  house. 

Mr.  Morton,  Did  you  ever  see  any  gypsies 
there  before?— l<(i'»c.y.  Nu,  never  bt'lbre  that 
time,  to  my  knowleJ*^' ;  1  never  saw  any  at 
Mrs.  WcllVs  before.  I  was  very  much  sur- 
prised, and  pul  the  money  1  took  of  her  into  a 
pail  of  wauT,  because  i  had  heard  they  can  get  i 
the  money  again.  I 

Whose  money  Here  you  afraid  would  be  so  ' 
nimble,  Lucy  V  or  the  old  womao*s.' — 1  had 
put    LucyV  in    my    pocket   amongst  other 
uwnev  ;   ii  was  the  old  «oiiun*s  money  i  put  J 
in  the  wauT.  "  , 

l>o  you  IvLOw  WiUiim  Smith? — He  lives  ' 
tuo  or'ihrxe  miles  (c^m  me,  upon  the  Chace;  ' 
he  i$  u  fjiriiier.  J 

Do  \<."a  ki]<>w  SaiuucI  Arso*? — 1  know  no  ' 
sucU  u^iuc.  uul«.5j  ii  be  be  that  11^  es  up  in  the  ' 
town.  I 

Do  ;,ou  k=o\v  ?Ir.  Howard  and  his  wife?^ 
Tl:^*.  au-v  p«o^>Ie  ot  very  good  caaracter,  lo  be 
sure' 

U.»  you  ki'ow  dumphr}'  HoMiiiiT  ? — 1  do;  " 
he  live^  in  Tuikey-»uvet]i  about  balx'  a  mile 
froai  tee. 

Do  >^Hiki'!Ow  Mr.  Story  r — I  hive  no  ac-  • 
r^-Al-'M"'*.-^  wiui  hi.xu  or  kuonUd^e  of  h:m. 

i^--.'i  H.^i!  sworn. 

5.   i:\vi:.     I    a-u   dau^htirr    lo  Susannah 
Wclb.  d:i4l  ilveO  dc  Eonri^-Wash  wim  her  at 
tb<  tiiue  Mrs.  Cd:*;i:a^  !Uid  »he  wascondned  ! 
there.  [ 

Mr.  H'tJ/es.    Do  \ou  know  Mary  Squires? 
— ^.  Hv«  <;.    1  iKs  'upon  the  aecwaot  of  her  i 
Ve«Qi^  ai  our  bouaw  a  week  aB«i  ooe  dav» 
€««||e  nmi  Lmy  }  iIm  j 


•il  lfcniii-| 


What  do  you  mean  by  workshop  ? — I 
the  long  room  that  you  go  through  the  \ ' 
to  go  up  to  it. 

What  did  Natus  and  his  wife  lie  upon  thin) 
—They  lay  on  hay  and  straw. 

Can  you  speak  particularly,  how  long  tlMf 
were  there  ? — They  were  there  two  moothsi 

What  use  was  made  of  this  room? — ^Tbcra 
was  a  great  deal  of  loose  hay  in  it,  and  imnber; 
the  hay  was  for  an  old  horse  my  naothcr  had. 
There  was  pwllard  in  a  great  drawer,  le  feed  a 
sow  and  pigs. 

Do  you  remember  about  Chnttmas-tiBi^ 
before  Squires  came  there,  whether  the  roooi 
was  locked  up?— No,  there  never  was  a  lack 
upon  the  door  in  my  memory ;  I  feoaembg' 
it  ever  since  1  was  born  almost ;  1  was  bom  is 
the  house. 

Were  >  on  ever  in  that  room  in  that  BMHilk  sf 
January  V — 1  was  almost  every  day. 

Are  you  sure  of  that .' — I  am  sure  of  it. 

Can'you  take  upon  you  to  swear  yoo  wtreit 
your  mother's  all  the  month  of  December?— 
Yes,  I  can. 

Can  you,  that  you  were  all  the  month  of  Ja^ 
nuary  ?' — I  by  in  that  house  every  night  in  tht 
month  of  January  ? 

Do  you  remember,  about  a  forte i^fht  or  thrss 
weeksbefore  Squires  came  to  your  bouse,  tbsl 
any  body  was  in  that  workshop  with  yoo  ?'« 
Virtue  ilall  went  mto  it  frequently,  as  much  ss 
I :  we  were  there  both  together  at  the  time 
the  trees  (a^^ins:  the  little  wudow,  a  < 
that  faces  the  stairs)  were  lopped. 

At  what  time  was  it  that  the  trees 
lopped  ? — 1  believe  it  was  on  the  Sth  of  Ja- 
nuary ;  there  were  Euward  Allen,  GUeS 
Koiibt.  acd  John  Lamey.  that  lopped  them. 

Was  the  casement  npcn  or  shut .' — 1  opened 
it  mviclf  dt  that  time. 

Did  any  thing  pass  between  you  and  then? 
There  were  words  passed,  but  1  cannot  tcH 
what  the  conversauoii  was. 

Cress -examined  by  Mr.  Aotcl 

Have  yiiu  lived  at  this  home  of  your  wtf^ 
ther*s  all  your  life-tiine  ? — 1  was'  krtd  Vf 
iketc,   and'  livcil  there  seoK  tiaw,  wm  tht 


409] 


fit  Wilfid  and  Corrupt  Perpay. 


A.D.  1754. 


[410 


-^Ihife  been  fife  or  nx  years  from  it,  and 
Mftr  saw  my  molber'a  bouse  in  the  time. 

How  came  YOU  to  be  at  borne  at  tbis  time  P 
—I  was  oat  ofplace,  and  so  came  home. 

How  kmg  had  you  been  at  home  before  the 
mica  came  there? — I  believe  about  a  year 
iM  a  balfy  or  two  years. 

How  do  yon  get  your  liring  ? — I  go  out  to 
ffA  mj  broMl,  to  work  in  the  country,  some- 
t«es  Barrest-work ;  I  have  no  family  affair 
vitk  my  mother ;  I  used  to  be  in  the  faoiily, 
wInd  1  was  not  engaged  another  way. 

Do  yoQ  remember  what  quantity  of  hay 
ymr  mother  had  at  this  time  Y — ^There  was  a 
gicat  deal  of  it ;  I  believe,  not  a  load. 

Rai  she  any  other  hay  for  her  horse  ? — No, 
ike  had  not ;  it  was  carried  to  the  horse  from 


moch  hay  might  there  be  when  Natus 
hy  there  P — ^There  was  a  great  deal. 

CWl  yoo  tell  any  thing  of  tbis  conversa- 
iHaWlveen  these  men  and  youP— 1  cannot. 

IM  yaa  begin,  or  they  ?— I  don't  know 
wklktfVirtae  Hall  began,  or  who. 

Wio  CMTersed  with  them  mostP — I  said 
antthagSy  but  can't  tell  what ;  1  don't  pre- 
law lo  say  one  word  that  passed. 

Did  they  begin  with  you  or  you  with  them  P 
—I  caaH  tell  who  begun. 

Were  they  acquaintance  of  yours  P — £d- 
wd  AHen  went  to  school  with  me. 

What  sort  of  trees  were  they  P — ^They  are 
frat  high  trees. 

Which  lopped  the  tree  P-^Giles  Knight ; 
Ihiywere  not  all  at  work  at  the  same  time ; 
my  Bother  gave  them  a  full  pot  to  lop  the  tree; 
Inwthem  drink  it 

Who  had  the  lop  P — Lamey  had  the  lop. 

Whose  trees  were  they  P — They  are  Richard 
ADta's  trees ;  they  only  cut  off  some  part  that 
hnc  over  the  place. 

mrmoch  in  ouantity  was  cut  offP — I  can't 
tdl;  I  thought  there  was  a  faggot,  but  1  did 
Mt  lee  Lamey  make  it  up ;  I  saw  him  go  by 
vilhioffleofit. 

Were  these  people  sent  there  on  purpose  P — 
Ki;  two  were  hedging  round  the  fields. 

What  did  the  others  do,  while  Knight  lopped 
Ac  iTfee  P—They  stood  on  the  ground,  and 
Med  on. 

^  How  did  Virtue  Hall  and  you  stand,  by  the 
^  of  each  other  at  the  window  ?— Virtue 
fiiB  kicked  orer  my  shoulder. 

Ccwld  the  men  see  you  both  P— Yes,  Sir ; 
"it  ]  was  the  principal  person  that  was  looking 
tit  at  the  window. 

Was  there  any  other  window  in  the  house 
ftat  boked  towards  that  part  P— No,  not  di- 
KMtly ;  there  is  one,  but  it  stands  slanting. 

By  Mr.  Recorder, 

Were  yon  present  when  the  gypsey,  her  son 
ad  daoghter,  and  your  mother,  were  taken 
«pP— Yes,  I  was. 

Were  you  present  when  EKzaheth  Canning 
vasbreugfat  tberef— I  was  thea  shut  up  in  the 
IMlovinlbthcothfln. 


Do  yon  remember  Elizabeth  Canning  being 
brengbt  into  the  parlour  P—  I  do. 

Recollect  what  passed  there.— Slie  swore  to 
the  gypsey- woman,  and  did  not  see  her  face. 

Are  you  sure  of  that  P — She  had  never  seen 
her  face ;  she  swore  to  her  before  she  saw  her 
fiice ;  I  am  sure  of  it. 

What  did  the  gypsey- woman  say  upon  that^ 
—  The  poor  woman  did  not  know  it  was  she 
that  she  swore  to,  till  her  daughter  Lucy  saidy 
Mother,  she  swears  you  cut  off  her  stays :  then 
the  ^psey  got  up  and  said,  Look,  madam,  don't 
say  It  is  ine  that  cut  off  your  stays ;  and  pushed 
op  her  hat ;  look,  for  God's  sake,  and  don't  swear 
to  me  ;  don't  say  it  is  me,  for  I  am  innocent; 
or  to  that  purpose ;  1  may  not  repeat  directly 
the  words  in  {Mrticular. 

Did  she  say  where  she  was  at  that  time  .^-^ 
No,  she  did  not,  but  Geoige  did  ;  but  what  h% 
said,  I  can't  tell. 

Can  you  describe  in  what  sort  of  a  postui^ 
the  gyp^y  sat,  when  Canning  came  into  tb^ 
parlourP— She  was  sat  wiih  her  pipe  in  her 
mouth,  by  the  fire  side,  with  a  hat  and  cloak 
on,  with  her  hand  upon  her  knee. 

Upon  your  oath,  whether  Elizabeth  Canning 
could  see  her  face  at  that  time  P— She  could 
not. 

Did  she  give  an;^  reason,  why  she  desved 
her  not  to  swear  against  her  P-— I  did  not  hear 
any  reason ;  afler  she  swore  to  her,  then  sIm 
shewed  herself,  and  pushed  her  hat  up. 

By  Mr.  Nara. 

Had  Elizabeth  Canning  seen  your  motherV 
face  before  the  time  she  spoke  to  the  gypsey  f 
—-Yes,  Sir;  yes,  in  the  room. 

Did  she  charge  your  mother  P— -No,  she  did 
not 

Did  she  pitch  upon  the  gypsey  of  her  owa 
accord  P—1  don't  know  wbether  she  did  or 
no. 

Did  yon  hear  any  body  tell  her  to  pitch  upon 
her  P— No,  I  did  not. 

How  came  you  not  to  be  examined  upon  the 
trial  of  your  mother  P-—1  was  not  subpoenaed 
up ;  I  have  but  two  snbpcenaes,  one  before  th« 
grand  jury,  and  the  other  here. 

Recorder,  What  was  the  reason  yon  were  not 
subpcenaed  upon  your  mother's  trial  P 

Uowit,  I  was  not ;  1  know  not  the  reason. 

John  Lamey  swore. 

J.  Larnty,  T  am  husband  to  Mary  Lareey  ; 
1  live  at  £ii6eld  at  the  two  bridges ;  1  am  a 
bricklaver.  I  was  along  with  Edward  Allen 
and  Giles  Kuight,  near  tne  house  of  Susannah 
Weils,  January  8,  1753.  Giles  Knight  lopped 
a  tree  ;  he  told  me,  if  1  wuuld  come  over,  I 
should  have  the  lops :  when  we  were  there, 
Edward  Allen  flung  some  dust  into  the  window 
of  the  workshop  near  the  trees,  to  Sal  Uowii 
and  Virtue  Hall,  who  were  witbin-side. 

•Mr.  Gatcoyne.  In  what  positM>n  did  they 
stand  ? — Lamey,  Sal  Howit  looked  over  Virtue 
Hall's  head. 

Whatconvenatum  passed  upon  thiaP— Upos 
S 


411J 


27  GEORGE  11. 


Trial  ofElixahelh  Canningf 


[412 


s  way  as  this  does? — ^There  is  one  above 
i  the  stairs  eoiiur  into  the  nrret,  that  be- 


my'word,  I  can't  tdl ;  there  were  words  passed, 
but  I  don't  belief  e  there  were  many  ;  when  he 
hulled  the  dust  in,  they  bid  him  be  easy. 

Where  was  Knight  at  the  time? — He  was 
theo  in  the  tree,  and  I  stood  upon  the  gpround 
by  the  tree. 

How  long  did  yon  talk  to  them  tlirouprh  the 
window  ?— It  might  be  the  faloe  of  ten  mmutes. 

Did  tfatey  both  look  out  at  the  window  at  tlie 
game  time  P — ^They  did,  and  kept  talking  to  us. 

Who  had  the  Dooghs  of  this  tree  ?— Bin. 
Wells. 

Who  carried  them  to  her?— 1  don't  know  ; 
I  belief  e  they  were  flung  of  er  the  hedge  to 
her ;  I  had  the  arms,  and  she  the  small  lop. 

What  did  yoo  do  with  them  ? — 1  carried  j 
them  home,  and  we  burnt  them :  we  had  half 
a  dosen  or  a  full  pot  of  beer  for  k>pping  the 
tree ;  I  don't  know  which. 

Who  do  these  trees  belong  to  ?— They  belong 
lo  Richard  AlKm.  This  wmdow  looks  into  the 
room  nroperly  called  the  workshop. 

Is  tnere  ef  er  another  window  that  looks  the 
■ame 

upon  tbe  stairs  going 
kmgi  to  the  house. 

Are  yon  sure  it  was  not  that  window  at  the 
garret  stairs,  that  these  two  women  were  look- 
ing out  at?— 1  am  very  sure  it  was  not. 

Nor  a  cellar  window?— No,  it  was  not 
There  were  three  other  frindows  in  the  work- 
shop, and  I  plaistered  them  up,  and  left  two, 
one  at  the  north  end,  and  the  other  at  the  east, 
that  they  looked  out  at. 

What  was  this  room  boilt  for  ?— It  was  built 
for  a  carpenter's  shop.  Mrs.  Wells's  first  hus- 
band was  a  carpenter. 

How  for  was  this  east  window  from  the 
ground,  that  thev  were  looking  out  at  ? — I  be- 
Eef  e  it  may  be  about  seven  or  eight  foot. 

In  what  condition  is  tbe  wall  ?— It  is  lath 
and  plaister,  very  f-light;  there  are  a  great 
many  holes  in  it ;  that  part  towards  the  south 
you  mi^ht  shake  down  with  your  hand. 

Was  It  in  that  ooodition  at  the  time  you  were 
lopping  the  tree  ? — I  can't  say  that,  because 
people  haf  e  been  up  in  it,  and  beating  it  about. 

Were  there  so  many  holes  in  it,  when  you 
were  lopping  the  tree,  as  there  are  now? — 
There  were  not ;  but  1  did  not  much  mind  it. 

Which  is  the  tallest  of  the  two^  Virtue  Hall, 
or  Sarah  Howit?— Sarah  Howit,  it  may  be,  by 
two  inches. 

Recollect,  as  well  as  you  can,  whether  you 
catt  positifely  say,  who  was  the  undermost,  and 
who  the  uppermost  ?— To  the  best  of  my  know- 
ledge, Virtue  Hall  stood  nearest. 

Cross-examined  by  BIr.  Williams^ 

Whereabouts  do  you  live  ?— I  life  opposite 
Wells's  bouse. 

Have  you  been  much  at  her  house?— I  have 
often,  and  all  over  her  house. 

When  was  it  you  were  lopping  the  trees  ?— 
Osthe  8th  of  JanuarjE ;  1  believeonaBIonday. 

Pray,  how  came  you  to  be  so  partkmlar  as 
^tha  lWM)-^BMMiityMvms  of  ihe trees 


that  1  carrieil  home  set  my  chimney  oo  fire  on 
the  lOili,  and  1  christened  my  child  on  the  IStb, 
and  Mrs.  Wells  was  at  my  boose  at  the  ohris- 
tentntif. 

What  quantity  of  this  lop  might  you  have? 
—About  half  a  dozen  pretty  large  sticks,  abovt 
as  big  as  my  wrist.  Kuiif  lit  was  busy  then, 
and  came  and  begged  a  little  small-beer,  and 
said,  if  I  would  come,  he'd  give  me  the  lop. 

Had  you  seen  Virtue  Hall  or  Howii  that 
day  before? — I  can't  say ;  1  may  foigct,  iff 
had. 

Were  you  at  the  tree  before  thev  were  at  the 
window  ? — ^They  came  there  partly  as  soon  is 
we. 

Did  they  continae  there  till  you  had  destt?— 
They  did  partly. 

How  long,  might  you  be  there  in  aU?^^ 
might  be  a£>ut  ten  minutes. 

Can  you  recollect  what  was  said  aft  flngv| 
the  dirt  up  ? — I  believe  she  said,  Don*l|  ysat 
break  the  windows. 

Who  stood  foremost  ?— They  stood  both  !•• 
gether. 

Did  they  stand  a-breastof  each  other  F-^Ne^ 
the  window  is  not  big  enough.    Virtus  Hall 
looked  under  Sal's  breast,  and  Sal 
the  shoulder  of  Virtue  Hall. 

Does  that  window  upon  the  stair< 
upon  the  trees  ? — It  does. 

Is  it  directly  over  the  other  window  ?— Ns^lt 
is  partly  over  it 

Are  you  sure  they  looked  out  at  the  lomm 
window  ?— I  am  positive  of  that. 

When  was  the  first  time  you  gave  this  ss- 
oount  you  have  given  here,  about  your  baf  isff 
spoke  to  these  women  on  the  8tb  of  JauuaiyJ 
— 1  never  was  sworn  before. 

Do  you  remember  the  trial  of  the  gy  piey  ?-« 
1  do. 

When  you  heard  of  that,  what  did  you  ssf 
about  Canning's  being  confined  in  that  roomr 
Did  you  ever  say  it  was  true  or  false  ?— I  men- 
tioned several  times  the  circumstances  of  ths 
women  looking  out  at  the  window. 

To  whom?— To  different  people. 

Did  you  then  mention  the  day  ?— Yes,  tht 
8th  of  January. 

Did  you  ever  mention  it  before  Mary  Squirtf 
wss  tried  ? — ^Yes. 

To  many  persons? — Yes. 

Why  were  ^ou  not  subpmnaed  up?— My 
wife  was.  1  did  not  know  it  was  very  matcrisi 
to  give  an  account  of  it ;  and  did  not  tbiok 
proper  to  put  myself  forward^  and  1  was  oblig- 
ed to  get  my  bread  another  way. 

Who  was  in  the  tree?— Giles  Roiffht  I 
was  right  against  the  tree  on  the  ground. 

What  year  were  these  other  windows  plsis- 
tered  up  in  ?— In  the  year  1750 ;  the  date  of 
the  year  is  there ;    I  put  the  stones  up  roysriL 

Vou  say  the  south-side  is  very  rottcas 
how  was  it  when  you  were  lopping  tne  treet? 
*-l  did  not  see  it  then,  the  hedge  parted  us.  • 

When  was  the  first  time  you  saw  Mary 

Suircs  ?— The  Saturday  before  ahe  was  htdk' 
away,  and  never  befiws  to  my  kaowMfi* 


ftS] 


Wilful  and  Corrupt  Perjury. 


A.  D.  1754. 


r*i« 


Oita  Knigfit  uwDta. 
C  *       '      Ilirr  at  £u  field,  and  have  thetc 
§tr  ^1  sill  ft  If  arilt^iier  by  uade. 

yt-  I  toir  far  do  you  hvc  from  Mr«. 

%r  — G   Kni^hl,  About  a  mile  aud 

t  Uit ,    .  »-  f*«^ing  near  her   bause  \    1 

JipyM  iiM  <  off  A  tree,  within  about  a 

tiiiplt  ot  ;„  ,^  :  Ljio  her  house,  at  the  north 
convT,  wmMT  A  window. 

It  there  •  Window  iu  the  garret  of  thai  house  P 
—Yea,  there  ii. 
WtT«  JOB  *Ter  in  the  garret  ?— No. 
Pfft  Jim  aee  any  body  loohing  out  at  that 
vin^tiv,  wbrn   ynu  was  loppititj  the  tree?— 
Nfl,*'  T  window  below  that ;  they 

»rr  I  Sarah  Uoirit, 

Wuat  fiifim  iio  ihey  call  that,  at  the  window 
^ mMxk  ytiti  caiw  Inese  women?—*!  do  not 
Imv  I  ibe  window  ti  about  leo  feet  high. 

Who  wfTt  with  you  ?-^ oho  Laroey  and 
"iwii  4iHi  were. 
MtltlMe  Uall  and  Sarah  Howit  both  look 
r?-*YeS|  8arah  Howit  was  lookro^ 
vRatL 

I  a«y  conreraatioti  with  them  ? — I 

'  f  behef  e  Edward  Allen  spoke  to  tbmn. 

IM  foii  hear  the  women  speak? — I   did; 

kt  toH  koow  what  they  ^atd  ;    I  think  Alleu 

Ibavfd  m  couple  of  cloda  of  dirt  b  to  them. 

Where  did    he  aland  f-^ust   aga'imt  the 

pibiliw^ 

^  of  tlie  tree  ?— I  gfiivc  it  to 

had  the  big^gest,  I  dooH 

refel.    AUei)  was  at  work 

that  d^y  hedging  iti  tlic  field  for  one 


Tiiiu    ijjiri    use 


yimMe  Mri .  WelU  at  that  time  ?--Yes ; 
4  locDe  beer  from  Caniril'a;     mother 
paid  for  It. 
Ibm  wai  this  ?->*-Tbt8  was  ou  tlie  8th  of 

you  know  il  to  be  precisetv  on  tht 
January  ? — Because  it  was  on  the  Moo- 
aftif  Oid  Chrtttmas-day. 
hal  M  you  to  take  particular  nottoe  of  the 
?— Sin.    Picket  had  a  cart,  loaded  with 
hrokt   dowtt   on  Old  Christmiu-day, 
Ni  \i  camt  home  that  lUy. 

Bite  you  Been  any  of  the  other  witnea^a 
itt)t  iliey  ha? e  been  examined  ? — ^No,  I  bare 
iift  Dune  «if  them. 

Wfiat  time  ti(  the  day  waa  it,  when  the  two 
^■tu  were  h^ingout  at  the  window  f-<-lt 
^(B  iIm  nionyaf ,  f  believe^  or  some  ticoe  tn 

j^Qibi'r  the  trial  of  the  old  gypaey 
T  woji  here  ;  I  was  sub[)«ji;uiMid  on 


Whai, 
iwtoeiir 
il  ibt  yard 


your  appearing  la  court  as 
'lkcaua#  I  was  not  i:alled  i  1  was 


f  u  «  Iq  jonr  power  In  hare  come  to,  if 
Ikad  a  mtiMlN-l  did  not  know  for  that: 


[•otko«7< 
ffitd  jiiry  i»|i«i»  this. 


any  cioai  before 
.L 1  weut  before  the 


Hoiv  large  was  that  window,  at  which  the 
women  were  looking  outf— I  beliere  big 
enough  for  me  to  get  out  nU 

How  bi^  is  the  garret  window? — That  19 
bir^ger  than  this  below. 

Is  the  garret  winrtnw  in  a  direct  line  orer  thn 
other  ?•*!  don't  know  that* 

Crois-ejiamined  by  Mr.  Morton, 

Was  that  directly  over  the  other  window  P— 
No ;  that  abore  was  directly  orer  against  the 
tree  I  Topped. 

How  many  houghs  did  you  Top  off?^Six  or 
seven. 

Who  had  it  ?— John  Larney. 

What  wood  was  itP — It  was  etm. 

Mr,  Morion,  Should  you  bare  been  afr«id 
of  setting  your  chimney  on  fire  with  it  ? 

Mr.  Dory.  What  weather  was  it?— Knt^^f. 
It  was  frosty  weatlier. 

Edtrard  Alien  sworn. 

E.  Allen.  I  lire  at  Eofield  high-way. 
Mr.  WilUi,  What  business  do  you  follow? 
— £.  AlUn.  T  am  a  cos  term  onger ;  1  go  a 
hedging  and  ditching :  Richard  AHeo  is  my 
brother:  he  has  a  fieJd  near  mother  Wella'ff 
house:  Giles  Knight  and  I  were  stopping' the 
gaps  round  it  on  the  8th  of  January :  there  is 
a  tree  that  hangs  orer  a  lane  by  her  house  ; 
we  cut  tiome  boughs  off  it ;  John  Larney  was 
there ;  he  came  to  hare  the  bi^^gesl  of  the 
wood,  which  he  bad,  and  the  rest  was  thrown 
orer  to  mother  Wells's.  8he  gave  us  a  full 
pot  of  beer  for  doing  it.  The  beer  was  fetched 
from  Mr,  Cantrifs.  At  the  lime  Giles  Knight 
lopped  the  tree,  I  saw  Virtue  Hall  and  8arah 
Howit  looking  ont  at  a  little  window  ;  I  tossed 
up  several  chumps  of  dirt  to  them  ;  the  place 
they  were  in  was  a  sort  of  a  leutoo,  on  th« 
b&clc  part  of  the  houae. 

How  high  is  that  window  from  the  ground  P 
■^It  may  be  about  ten  feet  to  the  bottom  of  the 
window. 

Do  you  remember  what  words  paiied  be* 
tween  you  ?— No,  1  do  not. 

Is  there  erer  another  window  belonging  (o 
that  house,  which  looks  out  as  that  does? — 
There  is  one  at  the  top  of  the  house  pwtlya 
thai  may  he  twenty  foot  above  the  other,  where 
ibcy  were. 

Were  you  erer  in  this  room  in  the  leantoo  ? 
*— Yes,  I  haie  twice  since  this  talk  of  the  girri 
beiog  confined  there. 

What  sort  cjf  a  room  is  it?— It  is  a  long 
room,  with  some  hay  and  stufi*  in  it. 

Do  you  re  mem  her  the  trial  of  Squires  and 
mother  VVella?^I  do. 

How  came  you  not  to  come  up  then,  and 

r'te  evidence ^«1  waa  not  ordered  to  come; 
had  no  snbpiena. 

When  did  you  first  tell  this  circumstaoce  of 
loppinif  the  tree  ?— I  told  it,  when  I  wi 
tile  qurvtiun. 

Have   you  mentioned    these  drton 
before  fcM|uirc«'s  triai  ?— I  h»ve  several  tinttSi 


'415]  27  GEORGE  IL 

Cross-ezamiDed  by  Mr.  Narei* 

Were  they  both  at  the  window  ?— They 
were. 

Can't  yoa  remember  what  passed  between 
you  ?— Upon  my  word,  I  do  not  know. 

Had  she  said  any  thing  to  you  to  provoke 
you  to  throw  dirt  P — No ;  we  did  not  throw  it 
in  malice. 

Were  you  acquainted  with  them  before  ?— I 
was. 

How  did  they  stand  at  the  window  ?— They 
stood  one  by  the  side  of  the  other. 

Did  you  see  Squires  and  Wells  taken  away  ? 
•^1  did ;  I  saw  tbem  get  into  the  cart. 

Did  you  mention  tbis  of  seeing  them  at  the 
window  then  ? — 1  did. 

To  wbom? — I  cannot  tell  to  what  person 
particularly ;  it  was  to  several  tbat  were  in  the 
room. 

Did  you  go  before  justice  Tashmaker  ? — No, 
I  did  not. 

Recorder.  Did  you  hear  at  that  time,  that 
Elizabeth  Canning  was  so  long  in  that  room  ? 
— £.  AlUn.  i  did! 

Recorder.  Were  you  not  surprised,  when 
you  heard  she  was  confined  there  ?•— JS.  AlUn, 
1  was  surprised ;  and  said,  if  sbe  was  there,  1 
thought  we  should  have  heard  sometliing  of 
ber;  and  if  I  had,  I  should  presently  have 
fetched  her  out. 

Mr.  Narei,  Wbetber,  at  the  time  you  heard 
Canning  had  said  she  was  confined  in  that 
room,  from  the  1st  of  January  to  the  time  of  her 
making  her  escape,  did  you  tell  ibis  story,  that 
you  had  been  at  the  window  lopping  a  tree  ?— 
£.  Alien.  Yes,  1  did. 

John  Cantril  sworn. 

Cuntril.  I  live  not  above  a  hundred  yards 
from  Wells's  bouse;  I  keep  a  public- house: 
Giles  Knight  and  Edward  Allen  came  to  my 
house  on  Aloiiday  the  8th  of  January ;  they 
aaid  they  had  done  but  au  indifferent  day's 
work,  for  they  had  been  at  play  with  mother 
Wells's  daughter,  out  at  the  back  window, 
throwing  clwls  of  dirt  in  at  the  casement,  and 
they  had  been  luppint;  of  trees,  and  a- hedging. 

Mr.  Gascot/nc.  What  is  your  reason  for 
being  particular  to  the  day? — Cantril.  They 
came  to  breakfast ;  they  wanted  tu  know  if  1 
had  got  any  small  meat ;  1  said,  I  should  roast 
a  large  piece  on  the  morrow,  which  I  did,  it 
being  the  9th ;  1  seldom  roast  less  than  five 
stone,  to  give  to  my  customers  for  Christmas 
beef:  I  ha?e  done  it  for  years  :  mother  Wells 
used  to  buy  her  liquor  of  me  sometimes. 

When  did  you  first  see  the  old  gypsey  ?— I 
never  saw  her  till  that  morning  she  was  taken 
up  ;  then  she  came  into  my  house  to  light  her 
pipe :  I  think  I  saw  her  son  the  Wednesday 
before  that;  he  came  into  my  house  very 
•barply,  and  said.  Let's  have  a  halfpennyworth 
of  gin. 

Had  you  ever  seen  him  before? — No,  nor 
bat  once  since. 

!)•  you  know  any  thing  aboit^  any  bay  of 


Trial  ofEUxabeth  Cannings 


[4 


Mrs.  Wells's?^!  saw  the  hay  loaded  in  t 
field  where  it  growed,  by  the  New- River  sid 
I  was  then  a- fishing,  and  I  saw  it  unkwded 
this  very  window,  that  this  young  woman  sa 
she  got  out  at.  [He  looks  at  the  mode 
That  is  the  window  at  the  end  of  it 

What  hay-harvest  was  this  hay  bronght  ii 
— It  was  the  hay-harvest  before  the  last. 

Do  you  know  the  stable? — 1  do  very  welL 

Is  there  a  lofl  over  that  ?— Yes,  there  is. 

Can  you  assign  any  reason,  why  the  bi 
was  not  put  up  there  ? — ^There  used  to  om 
bargemen  and  others,  that  would  rob  ber  whi 
she  put  the  hay  there,  therefore  she  pot  it 
this  place  to  prevent  that. 

Cross-examined  by  Mr.  Williami, 

How  many  loads  did  you  see  loaded?- 
saw  but  one  load ;  it  was  a  little  cart,  and  m 
horse  to  draw  it. 

Had  she  a  horse  ?— She  had  ;  but  it  wasll 
man's  horse  that  drawed  his  cart,  to  the  best* 
my  memory. 

How  much  hay  might  there  be  of  it  ?— It 
possible  there  might  be  half  a  score  tiimes. 

What  sort  of  a  window  is  it,  that  they  pi 
the  hay  in  at  ? — One  part  of  it  was  glass,  ao 
the  other  boarded  over. 

Was  it  so  when  they  were  pitching  the  faa, 
in  ?— 1  can't  say  how  it  was  then. 

Was  the  board  on  the  side  of  the  glia 
or  over  it,  or  under  it?-~One  half  to  the  op 
right  in  the  middle  was  boarded,  the  other  m 
gUss,  to  the  best  of  my  memory. 

Mr.  Davy.  Did  you  know  Natos  and  hi 
wife?— Can/ri/.  I  did  ;  they  us^  to  lodge i 
Mrs.  Wells's ;  but  1  can't  say  how  k>ng;  ball 
think  they  hail  been  there  faiackwards  and  fX' 
wards,  aliout  three  months ;  the  woman  uad 
to  come  to  our  house  for  gin. 

Do  you  know  in  which  room  they  lay?— 
No,  I  do  not 

Ezra  Whiffin  sworn. 

Whiffin.  I  live  at  the  White-Hart  and  CrffM 
at  Entield-Wasb,  a  public- house:  i  was  toU 
by  a  glazier,  he  knowing  I  wanted  some  irowtil 
a  sign,  that  Susannah  Wells  had  a  sign  sawed 
down  in  the  rebellion  time,  and  sbe  had  tbi 
irons  to  dispose  of;  1  went  to  her  house  on  tbf 
18th  of  January  1753,  and  asked  her ;  she  sudt 
she  could  find  them ;  she  and  I  went  together 
through  the  kitchen  into  a  room  called  the  loo- 
ber-room ;  it  had  formerly  been  a  workshop*  tf 
a  shuffle- board  room ;  it  is  a  long  room ;  iti< 
about  seven  or  eight  ateps  up  out  of  tbi 
kitchen. 

Mr.  Davy.  Did  you  take  any  notice  win) 
was  in  the  n)om  ? — Whiffin.  i  can't  say  I  M  i 
but  Judith  Natus  was  in  bed  in  that  room  npOl 
some  hay,  with  a  sheet  over  it.  The  bed  wa 
on  the  right  band  going  in.  As  we  were  losk 
ing  about  for  the  irons,  Mrs.  Wells  said,  Now . 
recollect  myself,  it  lies  under  the  feet  of  Ihi 
iNX>r  creature's  bed :  we  looked  and  foamf  tlMl 
m  a  piece  of  wood  there.  Then  FortiUM  M 
tus'i  wife  raised  heneif  up  apoD  her  iiboir|« 


4.17] 


Jar  iniful  and  Corrupt  Perjury. 


A.  D.  1754.. 


[418 


nidf  Wbaft  are  you  cfoing  to  do,  or  What  are 
von  about?  Mrs.  Wells  said,  We  are  only 
lonkiBi;  fur  a  piece  of  wood.  I  took  it,  and  set 
ito|K)n  BD  end,  and  said,  Well,  girl,  what  must 
Tou  baFe?  abe  said,  i  will  not  sell  the  wood,  it 
If  of  use  to  this  poor  creature's  bed  ;  the  irons 
I'll  bive  a  shillini;  for :  1  ^ve  it  lier  directly, 
iDd  said,  I  hare  a  son  below  stairs,  if  you'll 
kc  him  take  it  home,  and  take  the  irons  out, 
heiball  brioif  the  wood  again  ;  he  took  it,  and 
etrrieil  it  home,  and  took  the  hooks  out  and 
evried  the  wood  back  again,  and  there  it  is 
Boir. 

What  are  the  circumstances  by  which  yob 
leeollect  the  time?— I  owed  Mr.  Prosser,  a 
brvwer,  at  the  White  Lyon,  Ratcl iff- Highway, 
11/.  7i.  and  on  the  8th  of  January,  Alexander 
Livii^stone  joine<l  in  a  note  with  me ;  it  was 
■poB  demand ;  but  he  gave  me  some  time  to 
fiy  il,and  1  was  going  to  borrow  five  guineas, 
tocaaMe  me  to  pay  it,  of  R4»bert  Mltcham,  at 
tbit  GUbe  at  Wormleigh  ;  so  1  went  directlv 
there, tinon  as  I  had  sent  my  son  home  with 
the  weod  to  take  the  irons  out;  but  he  was 
fsae  10  Cambridge ;  so  I  came  back  and  went 
loI^adM  that  same  day,  and  carried  what  mo- 
Mj  I  bad;  and  that  snlislied  the  person,  and 
b  ifcMt  three  weeks  time  i  paid  the  remain- 
der. 

To  whom  was  the  note  made  payable? — To 
Boaar  Lovit,  at  ihe  Iron -Gate,  Tower- Hill; 
he  ii  an  officer,  he  arrested  roe  on  the  8lli  of 
luBary,  on  Mr.  Prosser's  suit. 

Are  jou  sure  this  was  on  the  8th  of  January  ? 
—As  I  bo|ie  to  lie  saved,  that  was  the  day ;  1 
lave  the  note  here. 

Produce  it  (which  be  did,  and  the  note  was 
md);  Alexander  Livingstone  and  1  signed 
tbii  the  day  it  liears  date. 

Who  was  in  the  niom  at  that  time  besides 
Mil.  Wells,  Judith  Natus,  land  you  1"— Nobody 
dv  as  1  know  of. 

Did  vou  look  aliout  the  room  P — I  did,  and 
•w  Bobod V  else ;  1  removed  some  of  the  hay, 
mi  shoolil  have  removed  a  great  deal  mure, 
hd  she  not  found  it. 

A  great  deal  of  hav!  hnw  much  was  there? 
—I  believe  there  might  lie  live  hundred  weight, 
iat  u,  leo  trusses ;  the  top  of  it  lay  as  high 
Mleoold  reach. 

Crooo-examiaed  by  Mr.  Morton, 

What  ia  theglaziiT*s  name?— William  Met- 
olf;  he  painted  my  sign,  that  is,  oaly  the 
Crown. 

Was  it  put  Qp  in  January  ? — No,  it  was  not 
•Mil  February. 

When  dill  he  mention  these  sirrn-irons  to 
yoa?.I  diiuH  remember  that ;  but  it  was  be- 
Nre  the  18ih  of  January. 

When  was  yoursign  brought  home? — I  don't 
Imw  whether  it  was  in  January  or  February. 

Did  he  mention  these  irons  before  the  sign 

was  brought  home?— Mv  si^^n  stood  in  my 

honae  a  month,  I  believe,  before  it  was  put  up  ; 

m  I  eaonoi  tell  whether  it  was  before  or  after. 

What  time  did  yoo  keep  Cbristmat  ?— I 

VOL.  XIX. 


went  by  the  New  Stile,  for  t  dropped  the  Old 
Stile,  and  hope  all  other  people  did. 

What  day  of  the  week  was  the  18th  of  Ja- 
nuary ? — It  was  on  a  Thursday. 

Court.  Consider  that.— £.  Whiffin.  My  lord, 
it  is  true. 

Mr.  Morton.  Do  you  know  Mr.  Harring- 
ton ?— J5.  Whiffin.    I  do. 

Had  you  ever  any  talk  with  him  about  this 
matter  ? — I  talked  with  him  about  the  time  1 
was  in  this  room. 

When  did  you  talk  with  him? — 1  don't  know 
the  time ;  but  it  was  not  my  business  to  tell 
every  body  what  I  knew,  but  I  answered  him 
as  1  thought  proper. 

Don't  you  know  what  week  it  was  when  you 
talked  with  him? — No,  I  do  not;  I  don't 
know  within  a  week  or  a  fortnij^ht  of  the  time  ; 
he  asked  me  abundance  of  questiuns,  and  I  was 
not  in  a  mind  to  resolve  him ;  I  tJiounfht  he 
was  not  a  proper  man  to  ask  me  questions,  and 
I  answered  him  just  as  I  pleased. 

What  month  was  it  iu  ? — I  do  not  know. 

What  }eur  was  it  iu  ? — It  was  some  time  in 
the  year  1753. 

How  long  is  it  ago? — It  is  above  a  year 
ago. 

Were  you  asked  by  any  body,  whether  you 
could  fix  the  time  you  went  into  the  room? — I 
don't  remember  any  body  asked  me  that ;  but 
if  they  did,  it  was  a  silly  question. 

What  were  you  askeJ  by  Mr.  Harrinjxton  ?— 
He  talked  a  great  deal  more  than  what  became 
him  :  he  asked  me,  what  day  of  the  year  ?  I 
told  him  it  was  the  18(h  of  January,  aud  I 
never  told  any  l)ody  any  time  else. 

Are  you  sure  of  that  ? — I  am. 

Did  you  say  any  thing  of  seeing  any  body 
else  in  the  room  at  that  time? — I  dou't  know 
whether  I  did  or  not. 

Or  that  Judith  Natus  was  in  the  room?-~I 
might. 

Did  he  ask  you,  if  you  saw  the  woman'a 
face? — 1  told  him,  I  did  not  force  my  discourse 
to  him ;  I  told  him,  I  saw  Judith  Natus  iu  bed  ; 
he  asked  several  questions,  but  i  resolved  him 
no  farther  ;  I  said,  1  saw  her  face,  and  that  I 
knew  her  plainly. 

Wfre  you  asked  whether  she  spoke  to  you  ? 
—No,  I  don't  remember  that. 

Do  you  reinenibcr  you  said  you  did  not 
hear  her  speak  ? — No,  1  don't  remember  that. 

Were  you  at  the  trial  of  Mary  Squires  ? — I 
was  subpoenaed  up,  but  was  not  adiuitteil  in. 

Did  30U  try  to  come  in  ?—  There  was  a  con- 
stable in  the  yard  that  denied  my  coming  into 
the  yard  for  a  good  while,  and  so  he  did  For- 
tune Natus's  wife  a  sood  whik'. 

Were  you  present  when  ihey  were  denied? 
— I  was  not. 

Have  you  been  examined  before? — I  have 
been  examined  by  my  lord-ma}  or,  and  gave 
the  same  account  as  now. 

Mr.  Dary.  Look  at  the  prisoner;  did  you 
ever  see  her  before? — K.  Wfiljfin.  No,  I  never 
saw  her  face  before  in  my  life,  as  1  know  of. 

tpon  your  oath,  do  you  believe  she  was  iu 
UK 


419] 


S7  GEORGE  IL 


that  room  F-^Upoo  my  oath,  I  did  not  see  her 
io  the  room. 

Upoo  your  oath,  is  she  the  woman  that  lay 
in  that  bed?— Upon  my  oath,  she  is  not;  1 
have  made  oath  of  that  hefore. 

Juryman.  Where  did  you  buy  th^  si^  ? 
^£.  Whiffin,  I  bouij:ht  it  of  Mrs.  Wells, 
but  it  was  a  iifood  while  before ;  it  was  about 
three  weeks  before  Christmas  was  twelve- 
months. 

Alexander  Livingstone  sworn; 

Mr.  Wilies.  Look  at  tliis  note ;  is  this  your 
band-writing  ?—Ltvin^s/one.  My  name  at  the 
bottom  is. 

When  did  you  sign  it?— I  think  I  signed  it 
the  day  it  bears  date :  £zra  W biffin  signed  the 
same  day  ;  he  was  then  arrested  by  fiomar 
Lovit. 

Was  there  any  mention  made  of  dating  itbe« 
fore  or  after  ? — No,  none^ 

Who  wrote  the  body  of  the  note?-*^Bomar 
liOvit  did. 

Did  you  sign  it  the  same  day  it  wasi  drawn  ? 
—I  did,  at  the  house  of  Whiffin  at  Enfield 
Wash  ;  I  was  a  boarder  with  him  then. 

How  long  after  Christmas  was  it  that  you 

.  signed  it?--lt  was  signed  directly  after  it  was 

.  wrote,  the  dav  it  bears  date ;  I  bare  no  reason 

to  beliere  to  the  contrary.    (The  note  is  shewn 

to  the  Jury.) 


John  Whiffin  sworn. 

J.  Whiffin.  Ezra  Wbiflki  is  my  father.  I 
have  been  coachman  to  a  gentleman  at  Hert- 
ford ever  since  February  14, 1753  ;  before  that 
1  was  at  my  father's  from  old  Christmas- day  ; 
I  went  with  my  father  to  Mrs.  Wells's  boose 
on  the  18th  of  January,  New  Stile ;    be  was 

S:oinff  to  the  Globe  at  Wormleiffb,  to  Mr. 
litcharo.  When  we  went  into  >Irs.  Wells's, 
she  was  gone  over  the  way ;  we  stayed  there 
till  she  came  in  ;  then  my  father  and  she  went 
and  fetched  that  piece  of  wood,  and  1  carried  it 
home,  and  took  the  hooks  out,  and  brought  the 
wood  back  to  her  house  again. 

Mr.  Gascoyne.  In  which  room  did  yon  stay 
while  they  went  for  the  wood  ?-- J.  Whiffin,  1 
stayed  in  the  first  room  on  the  leiV-hand  side. 

Did  you  see  your  father  and  Mrs.  Wells  go 
into  that  room  where  that  wood  was  ?— No ;  I 
.  did  not  go  out  of  the  room  where  I  was,  till 
they  came  to  me  again. 

When  did  you  return  the  piece  of  wood 
again  ?-— I  did  in  three  or  four  days. 

Did  you  know  of  the  debt  your  father  owed 
Mr.  Prosser? — I  did;  and  Mr.  Livingstone 
entered  his  hand  to  the  note  to  pay  it  to  Mr. 
Lovit. 

Cross-examined  by  Mr.  Nares. 

Were  yon  at  home  with  yonr  father  from 
.  the  old  Christmas-day,  to  the  14th  of  February, 
1753  P— I  was. 

Did  you  see  Mr.  Metoalf  at  year  father's  in 
that  Umef-^t  did. 
Did  he  paint  a  sign  for  your  &lber  f— Ha  did. 


Trial  ofEUxaheth  Gtnningf 

When  was  that  brought  home  7^1 
brought  home  before  I  was  at  my  fatbi 
went  there  on  old  Christmas^day ;  il 
then  in  th^  parlour. 

Elixaheth  Long  sworn. 

E.  Long.  I  am  daughter  to  Mrs.  W 
have  been  a  married  woman  ;  my  busb 
dead;  my  maiden  name  was  Wells;  \ 
very  frequently,  erery  day  in  the  year  i; 
go  to  my  mother's ;  1  lived  but  three 
from  her. 

Mr.  Davy.  Were  you  at  her  house 
n[ionth  of  January  in  that  year  ? — E.  L 
believe  I  was  there  every  day  in  that  i 
and  all  over  the  house,  excepting  the  m 

Who  lived  in  the  house  the  first  ana 
weeks  of  January  ? — My  mother,  ai 
sister,  and  Virtue  Hall,  and  Fortune  Mai 
bis  wife. 

When  did  vou  see  Fortune  Natus  i 
wife  there? — 1  had  seen  them  there  from 
January ;  tbev  were  there,  from  first 
about  ten  weeks. 

Did  yoQ  use  to  go  up  into  this  hay-1 
I  have  for  Judith  Natus,  for  herto.Cf 
my  bouse  to  help  me  to  do  what  I  wai 
be  done :  I  have  frequently  gone  into  tha 
to  her ;  she  used  to  lie  there ;  1  have  so 
and  her  husband  in  bed  in  the  month 
nuary  there. 

Did  yon  ever  see  any  body  else  in  that 
in  the  month  of  January  ? — No,  Sis. 

Look  ai  that  young  woman  there  {m 
Elizabeth  Canning). — 1  nerer  saw  her 
she  never  was  at  my  mother's  house,  t 
came  down,  and  they  were  taken  up. 

Do  you  remember  the  furniture  of  that 
—Yes,  I  do ;  the  chimney  is  on  the  righ 

ing  up  stairs,  at  the  foot  of  Fortune  ( 


Was  there  a  grate  in  it?— No,  there 
was  in  this  world ;  I  have  remembc 
twenty-two  years ;  there  was  a  great 
drawers,  three  women's  saddles,  and  a 
saddle*  a  tub  that  my  mother  kept  her  c 
for  the  horse,  and  a  great  deal  of  hay, 
drawer  of  pollard  for  the  sow  and  yngs. 

Who  fed  the  horse,  sow  and  pigs, 
that  time? — I  know  I  went  in,  in  Jann 
fetch  some  pollard  out  of  the  drawer 
^^  piS> ;  but  I  went  in  so  frequently, 
tell  the  particular  days. 

Are  you  sure  there  were  three  w< 
saddles  and  a  man's  saddle  in  the  room  1 
deed,  there  were. 

Look  at  this  pitcher.— It  looks  like  n 
ther's  pitcher,  but  I  will  not  be  positivi 
had  such  a  one  with  a  broken  mouth, 
she  used  every  day. 

Did  vou  see  it  m  the  month  of  Janoa 
Yes,  I  have  seen  our  people  fetch  water 
in  January. 

Look  at  that  bed-gown.— I  never  aai 
in  my  life,  till  I  was  at  my  lord-mayor'i 
mother,  my  sister,  nor  1,  never  wore  it 
none  bdooging  to  our  family  i  mj  mA 


m 


JiirWUJid  and  Cornqi  Pajurif.  A.O.  17M>    .  [42S 


rj: 


li 


MTcr  a  bed-gown  ■•  I  knoir  of;  there  wu  no- 
Wj  at  my  ttMKher^  huuie  bad  a  bed-gown, 
ifcit  1  am  sure  of. 

Look  atthia  haDdkercbief;  do'you  know  \if 
-No,  I  do  oot;  I  DOTer  aaw  that  till  at  my 
brd-aiajor*s. 

When  did  3Iarv  Squires  come  to  yoor  mo- 
ther's house?— Aie  came  on  a  Wednesday, 
sad  was  there,  from  first  to  last,  a  week  and  a 
dif,  befbce  she  was  taken  op,  which  was  on  a 
Harsday. 

Bid  TOO  ererseen  her  before?— No,  nerer 
■  asj  lue ;  if  I  bad,  I  must  have  known  it ; 
kr  mee  is  a  very  remarkable  one. 

Do  yba  remember  her  family  that  came  with 
kv?— nere  were  two  daughters  and  a  son ; 
Ha  old.  woman  called  one  Lucy,  the  other 
Mr,  and  the  aon  George. 

ore  you  in  the  house  when  Elizabeth  Can- 
;cBBO  down  there  to  take  your  mother  uu  ? 
wsa  coming  out  of  the  parlour,  when  she 
^liWCMiM  into  the  kitchen  ;  I  had  heard  a 
grtsi  dislaAance,  and  I  went  to  my  mother's 
EsMS^afkrthe  gentlemen  were  got  there. 

Was  the  door  goiujir  up  into  the  workshop 
epca^  when  she  sat  upon  the  dresser  ? — I  think 

Was  she  retnored  to  any  other  part  of  the 
kilehcaf— Never,  as  I  know  of. 

DU  any  body  ask  her,  if  »he  knew  that 
rssm?— Not  as  1  heard ;  when  she  was  brought 
irts  the  parlour,  my  mother,  Mrs.' Squires 
her  two  daui^hters  and  son,  and  Virtue  Hall, 
isd  my  sister,  were  sitting  round  the  fire; 
dbe  pointed  to  Mary  Squires,  and  said,  That  is 
Ihs^  voman  that  cut  my  slays  off;  she  was 
ikiiag  on  the  right  hand  oi*  the  chimney- 
|iMe. 

CavM  yon  see  Squires's  face  then  ?— The 
■mltiuiu  were  all  before  me;  1  could  not 
■e  her  face,  and  she  did  not  turn  her  face,  as 
Inw;  she  had  a  hat  and  cloak  on,  and  a 
cbal,  on  her  head,  instead  of  a  cap,  and  sat 
^'■f  her  head  down. 

Wa«  she  smoking  a  pipe? — I  can't  tell  whe- 
iv  she  was  or  not. 

Did  she  sit  upright  ?— I  think  she  did  not ; 
As b  not  an  upright  woman.  Canning  spoke 
tfim  befure  Mary  Squires  heard  her.  One  of 
h»  daotfhters  ^t  np,  (I  don't  know  which  it 
fci)  SDQ  said,  Mother,  the  young  woman  says 

a  cut  her  stays  ofi*.  Then  she  got  up,  ond 
to  the  young  womso,  Younsf  womsn  you 
•R  Mistaken ;  I  am  a  very  remarlable  woman, 
WhaTe  got  the  evil  in  my  face,  and  you  may 
btw  BM  by  niffht  or  by  day.  She  shewed  her 
ke  bjr  puttinif  her  hand  up  to  her  clout  on 
(kb  «de  to  mske  her  face  hare. 

Did  vou  hear  the  young  woman  mention  the 
fae  01  the  robbery  S^l  can't  say  1  did,  or  any 
Ml  else. 
Did  Oeonre  or  Lucy  then  say  where  they 

I  I 


Did  Oeoi^  or  Lucy  then  say  where  t 
*0e  on  the  1st  of  January  ?— Not  then,  i 


Did  yoo  oome  at  a  witness,  when  your  mo- 
^  wu  triad  with  Mrs.  Squirea?— 1  came 
^  iht  Oid-^y  y  wd|  and  thepeppte  woi^ 


not  let  me  come  in ;  there  were  other  wit- 
I  subpoinaed  them  myself. 
How  many  witnesses  did  you  serve  with 
Isobpcinaa  to  attend  at  that  trial? — Eiehtr  I 
'  had  the  subpcenaa  of  a  lawyer,  Mr.  Talmash  ; 
he  lives  in  Red  Lion-streH:'  I  delivered  one  to 
Fortune  Natus,  and  another  to  his  wife,  one  to 
Mary  Lamey,  one  to  Giles  Roight ;  I  can't  re- 
collect them  all :  somebody  knuwed  ine  to  bis 
mother  Wells's  daughter,  and  they  pushed  me^ 
oot,  and  would  not  let  me  come  in ;  ther 
frightened  me*  very  much,  and  I  went  Iwckr 
again,  sind  up  two  or  three  pair  of  stairs  in  a 
house  in  the  Old- Bailey,  and  heard  the  mob 
cry  out.  Mother  Wells's  daughter! 

Cross-examined  by  Mr.  Williams, 

Who  was  with  you  at  that  time? — Mary 
Lamey  and  Giles  Knight  were  with  me;  I 
saw  them  go  into  the  yard  with  me ;  I  cannot 
say  whereabouts  they  were. 

Did  John  Larney  go  into  the  yard  ? — I  did 
not  sobpsena  him. 

Are  }'0u  sure  Giles  Kuight  was  refused 
being  in  the  yard  ? — I  am  not. 

How  long  had  you  l»een  parted  from  your 
mother  ? — Not  long  ;  I  had  not  been  married 
quite  a  yrar,  and  1  lived  at  home  a  quarter  of  a 
yearafler  I  was  married. 

Were  you  away  a  month  ? — I  am  sure  I  wss 
Hot;  I  lived  in  that  house  three  quarters  of  a 
year,  and  don't  know  I  missed  a  day  in  all  that 
time  going  to  my  mother's  house,  and  used  to 
go  into  the  workshop  sometimes  for  ashes  to 
carry  home  for  my  own  use. 

What  January  do  you  speak  of? — I  mean 
that  January  the  young  woman  says ;  I  think 
it  is  above  a  year  ago. 

What  month  is  this?— I  can't  justly  tell  of  a 
sudden. 

Is  it  May,  or  November,  or  December  ?-~ 
May,  1  think; 

Were  you  before  justice  Tashmaker,  when 
they  were  carried  there? — They  did  nottako 
me  away,  and  I  did  not  go  there  at  all. 

Mr.  Aary.  Were  you  ofU'u  at  this  workshop, 
within  a  week,  or  formiirht,  or  three  weeks 
before  your  mother  waa  taken  up  ? — E.  J/mgi 
I  was  there  every  day ;  I  used  to  go  frequently 
to  breakfast  there. 

Jokn  Hawit  sworn. 

J.  Howit,  I  am  a  carpenter ;  Mrs.  Wells  is 
my  mother ;  I  have  lived  at  Enfield-Wasli 
about  seven  years  ;  I  used  to  go  to  her  litkuse 
now  and  then ;  I  was  at  work  at  Bremnn^ 
Green,  aliout  seven  miteK  fmm  thence ;  haviug 
done  work,  1  wan  discharged  from  that  filaco 
on  the  19th  of  Jnnuary  ;  about  six  o'clock  at 
night  I  came  to  my  mother's  house. 

Mr.  Witlii,  Do  you  know  the  hay -loft  ?_ 
J.  Hmvit,  I  kiH»w  the  workMhop,  and  was  in 
it  on  ttie  19ih,  2(Hh,  and  21st  of  January. 

What  l«d  you  to  g<i  there? — My  mother 
sent  me  up  to  wrve  the  sow  ;  and  I  had 
bniught  my  tools,  and  lodged  them  in  that 
ycry  room  ;  and  on  Sunday  tha  SOtli  I  went 


423] 


27  GEORGE  II. 


to  fetch  my  axe  and  saw,  to  cat  some  wood 
for  my  wile. 

Was  any  body  in  the  room  then? — Yes, 
Fortune  Natus  and  his  wife  were. 

What  business  had  they  there?— They  lay 
in  that  room. 

How  do  yon  know  they  lay  in  the  room  ? — 

Because  I  saw  them  in  betl,  or  what  they  call 

.   m  bed  ;  it  was  on  the  right-hand  side  going 

^  up  ;  they  had  sacks  to  lay  their  heads  on,  and 

what  they  thought  fit  to  cover  them. 

Had  they  a  pillow  or  bolster  ?--I  can't  say 
they  had. 

Look  at  Elizabeth  Canning ;  did  you  ever 
■ee  her  thi  re  in  that  room  ? — No,    1  never  did. 

Canning.  I  never  saw  him  before,  as  I  know 
of.       . 

Cross-examined  by  Mr.  Morion, 

Yoti  say  you  wanted  ^our  axe  and  saw  to 
cut  wood  tor  your  wilie:  where  does  she  live? 
—We  live  just  b}'  the  ten-mile  stoue,  about' 
a  quarter  of  a  mile  from  my  mother's. 

Dm!  you  ^o  houie  first  to  your  house,  or  to 
your  mother's  on  the  Saturday  ? — I  went  to 
my  mo:her*8  first,  and  there  I  left  my  tools. 

Which  is  nearest  your  master's,  where  you 
came  from  ?— My  mother's  is. 

How  came  you  to  leave  your  tools  at  your 
mother's? — By  reason  that  was  nearest,  and  I 
was  tired  of  them. 

What  time  of  the  morning  of  the  Sunday 
was  it  you  went  for  them  ?— About  nine  o'clock. 

Are  you  sure  you  spoke  to  Fortune  Nut  us 
and  his  wife,  as  they  were  in  bed  in  that  room  ? 
I  am  positive  of  it. 

How  came  ^ou  not  to  be  here,  when  your 
mother  was  trieu  ?-  -Because  1  was  never  askf d 
any  questions  before,  nor  had  I  a  subpoena  at 
all. 

Had  you  heard  that  this  girl  said  she  was 
confined  in  tills  room  ? — Yes,  but  I  can't  say 
how  li)n|L;[^. 

Then  how  came  it,  you  did  not  come  and 
give  testimony  against  it? — I  was  asked  no 
questions,  and  1  was  not  to  come  without;  I 
was  up  here,  but  the  mob  would  not  let  us  come 
in. 

Did  ynu  design  to  come  in  as  a  witness? — 
Yes,  I  did  ;  we  went  to  Mr.  Li^^KkT's  in  Green 
Arhour  court,  and  had  like  to  have  been  knock- 
ed on  the  head,  them  that  had  got  subpoenas, 
and  them  that  had  uot. 

Wiio  >t<:s  >our  iitother's  attorney  at  that 
time? — i\lr.  Taimnsh. 

Did  you  tier  ^u  to  him,  ami  tell  him  about 
your  (roiuiniif  W  'Uie,  and  i^ititia  i"^^  ^^^^^  room 
three  du)s  io<>etlier  in  January? — No,  1  never 
did. 

Jurtfman.  We  should  be  glad  to  know,  whe- 
ther tiiiit  drawer  was  in  the  cheNt  of  drawers, 
or  a  single  drawer  of  it»elf?— /futr;i7.  It  is  one 
f/theui  drawers,  but  it  was  uot  in  it;  it  was 
swelled,  and  would  not  go  in. 

Robert  While  %moxu. 

K\  Whiit.    I  Uve  At  Enfield,  and  am  ft  day 


Trial  of  Elizabeth  Canningf 

labourer;  I  have  been  at  mother  Wella'a 
a  Gfreat  many  times. 

Mr.  GoKoyne,  Were  you  there  in  Om 
UbSf-^White.  1  was,  m  old  Christmai 
new  Christmas  too ;  I  was  there  comi 
four  or  five  times  a  week. 

What  day  in  January  was  you  tber 
am  not  so  well  learned  to  give  an  acco 
the  day  of  the  month. 

What  Christmas  do  you  mean? — I 
last  Christmas  was  twelvemonth  ;  Natu 
quartered  at  my  brother's,  and  I  knowini 
used  to  go  andkeep  him  company,  ami  u 
stay  there  sometimes  till  eight  or  nine  o* 
and  used  to  come  as  soon  as  1  had  dune  n 
hour,  at  about  seven. 

Which  room  had  you  used  to  be  togeth 
—I  used  to  be  in  the  kitchen,  at  the  right 
going  into  the  house. 

Do  you  know  the  door  that  goes  in 
hay-loU? — Yes,  1  do  ;  it  is  the  room  that 
and  his  wife  lay  in,  hut  I  was  uot  in  it  th4 
they  lay  there. 

Did  you  everjsee  that  door  open  that  g< 
into  the  hay-loYt?~  Yes,  I  have,  and  bar 
Fortune  Natus  and  his  wife  both  go  io 
come  out  again ;  1  reuiemt>er  they  did 
Sunday  morning  in  particular. 

Have  you  ever  seen  any  boily  else  g 
that  room  ? — No,  Sir. 

How  long  utight  you  keep  going  U 
house? — 1  believe  it  might  be  almoel 
months,  or  nine  weeks. 

Were  you  ever  in  the  kitchen  any  time 
Mary  Squires  was  there? — No,  I  never  n 

Do  you  know  the  day  of  the  month  she 
there  ? — No,  J  do  not. 

Cros8-examine<l  by  Mr.  Nares. 

Did  you  ever  see  Mary  Squires  ? — I  sa 
go  by  the  barn  where  1  labour,  about  f( 
five  days  before  she  was  taken  up  ;  but  1  d 
see  lier  face  then. 

Did  you  ever  see  any  of  the  young  onei 
saw  one  of  the  daughters  once  go  into  th< 
lour  one  Sunday. 

John  Domrval  sworn. 

Donoval,  1  surveyed  the  room  (Eliz 
Canning  said  she  was  confined  in) .  on  I 
Eve,  (he  13th  of  Apiil  [aa^i. 

Mr.  Duvi/.  Give  the  Court  the  dimensi< 
it. — Donoval.  It  is  thirty-five  tiNM,  thrt^e  ii 
an<l  a  half,  fr<»m  quarter  lo  quarter  in  the  i 
of  the  room  upon  the  floor,  by  nine  toot 
inches. 

Is  this,  that  is  produced  here,  a  true  mo 
it,  according  to  its  pro|K)rtinn? — This  mo 
exactly  in  proportion  with  it,  and  there 
scale  upon  the  roof.  [There  was  the  ho 
ihejack-Une,  a  window  un  the  op|»osiiea 
the  stairs,  another  at  the  end,  and  a  chime 
one  corner,  a  chest  of  drawers,  and  sac 
and  jack- pullies,  drawn  on  the  wall,  &c.] 

George  Talmash  sworo. 

G.  Tahamh.   I  hafiiig  tome  koowtod 


4i5] 


Jkr  WAJvl  and  Corrupt  Perjury. 


A.  D.  175*. 


[420 


Mn.  WdU,  and  hearing  of  this  extraordinary    askeil  her  where  Enfield -Wash  was?  she  said, 
Hirj,!  went  out  of  curiosity  to  Bride  well  to  see  i  dtit  of  town.      I  asked,  what  they  did  with 


Wr:  when  I  cnme  there,  she  addressed  herself 
ti  Be,  and  desired  I  would  he  roncerned  for 
kr,  u  her  attorney  ;  1  did  not  care  to  be  coo- 
ttriHl  in  it :  after  that,  her  daughter  cau)e  to 
■J  boose,  with  a  list  of  witnesses  to  the  num- 
kr  of  ei|;ht,  and  desired  me  to  take  out  sub- 
Boau  for  them.  J  sued  them  out ;  1  remem- 
MTOoe  was  fi>r  Fortune  Natus,  another  for 
Jtfilh  Natus,  and  another  for  Ezra  Whiflfin  ; 
Icui't  pretend  to  tell  all  the  rest  of  their  names 
Mw.  1  delivered  them  to  the  woman,  and 
gift  her  directions  to  serve  them. 

Mr.  Willes.  When  that  trial  came  on,  can 
VMi  tell  whv  those  people  did  not  appear? — 
lUastA.  No,  no  more  than  what  they  told 
■e;  1  was  concerned  no  more  in  it. 

Elizabeth  Mayle  sworn. 

£.  UmfU,  I  am  a  midwife ;  I  brou|(ht  this 
girt,  E&meth  Canning,  into  the  world,  and 
hii  bv  astber  of  more  children  ;  1  am  inti- 
■iieiyaefaainted  in  the  family. 

Mr.  Dm.  Were  you  at  Mrs.  Canning's 
kmt  ia  February  last  was  twelve- month  ? — 
M^.  I  was  in  the  beginning  of  February ;  I 
MW  cbe  mother  and  the  daughter  also. 

Can  you  mention  the  day  ? — It  was  the  2d 
vSil;  It  was  the  first  week*,  ]  am  sure. 

Where  does  she  live  ? — She  lives  in  Alder- 
■ubury  Postern ;  the  daughter  was  then 
l^iieoa  a  bed  in  her  mother's  house. 

Had  you  any  conversation  with  the  mother, 
ii  the  daughter's  presence,  about  the  daugh- 
lir'tmbtortunes?— I  had. 

Wtt  the  daughter  awake  .^— She  was :  I  had 
ksHBCH  by  the  house,  and  1  went  in,  in  order 
tiioouire  if  she  had  heard  of  her  daughter 
Khiibeth.  As  soon  as  I  came  in,  Mrs.  Can- 
m^  said,  Madam !  O  Lord,  madam !  have 
^  beard  of  my  misfortune?  I  said,  1  had  read 
iiatbe  newspa|*ers  in  the  month  of  January, 
ladisked  her  if  she  had  heard  of  her  daugb- 
hr;  she  said.  Yes,  she  has  come  home  as 
ttktA  as  nhe  was  born. 

Are  you  sure  ithe  mentioned  these  words, 
Nikcd  as  she  was  liorn  ? — I  am  positive  of  it : 
I  iamediately  said,  O  Lord!  what,  without  a 
M  on  ?  Stie  aaiil.  No,  she  had  a  shift  on. 
Tbeo  I  avked  her  where  her  daughter  waa? 
ftcsaid,  behinfl  iite.     I  turned  alraut  to  the 

e,  and  said.  Lord  bless  me !  Bel,  how  came 
■bout?  She  said,  I  waa  coming  over 
Ikorfields  one  night,  and  two  men  came  up 
te  Be,  one  took  bold  of  my  two  hands  and 
filfd  me  along,  and  the  other  rohbed  me :  I 
nd,  Of  what,  child?  She  said.  Of  half  a  gui- 
Mt  and  three  shillings  and  some  half-pence, 
■y  gown  and  my  cloak.  1  said,  M>  dear, 
wt  trouble  yourself  about  these  things,  for 
Gtd  Almighty  will  raise  you  frienda  to  get  you 
Bore;  1  hope  the  men  did  not  use  you  ill,  so 
t*  to  debauch  you :  she  said,  she  could  not 
Kforihe  bad  her  fits.  Said  I,  What  did  they 
^  with  yoq  after  they  had  robbed  you  ?  She 
^  Tbej  ourricd  mt  to  £iifield<Wasb.     I 


her  there  ?  She  aaid,  they  carried  lier  into  a 
bouse,  and  as  soon  as  she  came  in,  there  was 
an  old  gypsey  took  a  knife  and  cut  her  stays 
off,  and  pnt  her  hand  into  her  pocket  and  pulled 
a  farthing  out,  and  put  it  in  aga'u,  and  hit  her 
a  slap  on  the  face,  and  called  her  bitch,  and 
bid  her  go  up  stairs.  I  said  to  her  mutber, 
Mrs.  Canning,  liaie  you  got  this  shitt  your 
child  went  abroad  in  ?  Sure  never  was  such  n 
case  before.  I  said,  I'll  tell  you  if  any  body 
has  debauched  your  child,  if  you'll  let  me  see 
it.  She  iminediately  reached  it,  and  I  looked 
at  it,  and  said,  Mrs.  Canning,  is  this  the  shift 
your  daughter  went  away  in  .'-T-Sbe  said,  Yes : 
then  I  said,  1  supposed  it  was  washed  since  she 
bad  been  gone :  she  said,  No,  how  could  that 
be  ?  for  she  was  in  a  room  where  nobody  came 
to  her. 

Mr.  Morton,  Was  the  prisoner  present  and 
heard  all  this?-  I^.  Muyle.  She  was.  We  stood 
by  her  bed-side.  She  said,  she  had  been  confined 
in  a  room,  where  she  lived  u|)on  nothing  but 
bread  and  water.  1  said,  1  think  the  shift  is 
too  clean,  except  you  have  had  it  washed  since 
she  came  home.  She  said,  No,  it  had  not 
been  washed.  I  said.  Then,  my  dear,  you  may 
make  yourself  easy,  for  I  can  see  by  it,  that 
no  man  has  debauched  your  child  ;  but  it  is 
uncommonly  clean  to  lie  wore  so  long.  Then 
the  mother  said,  she  never  had  a  stool  all  the 
time  she  was  gone :  then,  1  said,  she  must 
have  a  glyster  given  her  ;  but  I  can  assure  you 
no  man  has  debauched  your  child  in  this  shift 
unless  it  has  been  washed  since.  She  again, 
said.  No,  it  had  not. 

Mr.  Davy.  Did  the  shif)  appear  to  be  dirty 
enough  to  ha%e  been  wore  three  weeks  and 
some  days  ?— No,  it  did  mit ;  there  were  three 
little  S|)Ots  of  excrement,  about  the  hi^^nesa  of 
the  up|»er  part  of  my  thumb:  1  don't  think  it 
was  dirty  enough  to  have  been  wore  three 
weeks  by  any  clean  woman  that  ever  sat  still 
in  a  room,  because  every  woman  must  go  to 
bed  and  get  up  ;  aud  by  sitting  by  the  fire  tlie 
dust  will  arise. 

Do  you  think  it  had  been  wore  three  weeks  ? 
— I  don't  think  it  had. 

.Did  you  take  notice  of  the  bottom  of  it, 
whether  it  was  draggleil  ? —  I  did  ;  1  took  par- 
ticular notice  of  that ;  I  baw  no  dirt  tliere ; 
there  was  a  hole  on  the  right  side  of  the  shift 
down  one  of  the  gutisets,  but  there  was  no 
draggleil  tail,  not  at  hII. 

How  |ont>  did  it  ap|iear  to  have  been  wore  f 
—  It  seemed  a-^  if  it  had  tH^en  wore  a  week, 
or  siirh  a  matter  ;  I  cun't  tell  how  long  it  had 
been  wore. 

Had  you  l>een  acquainted  nuirh  with  lierf 
— I  had  been  acquainted  with  the  girl  from  ber 
birth. 

How  long  do  you  think  she  might  have 
been  in  making  that  shift  so  dirty  as  it  was  ?>— 
About  a  week. 

Did  the  girl  herself  say  any  thing  to  you 
on  this  oocasion  ?— Yet ;  she  toN  me  how  she 


4?7] 


27  GEORGE  II. 


had  been  used,  and  the  gypsey  bad  cot  off  ber 


ypseyi 
I  left 


stava,  as  1  said  before.  I  left  ber  motbcr  an 
order  to  give  her  a  glyster :  she  said.  Will  you 
examine  her  body,  to  see  if  she  has  been  burt- 
ed  ?  I  said.  No  ;  1  never  was  before  the  face 
of  m  judge  in  the  Old*Bailey  in^y  life,  and  I 
did  not  care  to  be  in  dirty  work :  ffoing  away, 
she  said  to  her  little  girl,  Go  and  call  Mrs. 
>Voodward  over  the  way  to  me:  when  she 
came  in,  Mrs.  Canniiig'said'to  roe,  Will  you 
say  what  you  said  before P  I  said.  Yes,  Sin, 
Canning,  with  all  the  pleasure  in  life ;  if  this 
shift  has  not  been  washed.  Til  make  an  oath 
before  a  judge  no  man  had  copulation  with  her. 
I  went  awa^r ;  1  had  proposeo  to  bring  a  doctor. 
I  rcturneil  in  about  half  an  hour ;  I  went  to 
the  bed  side  to  the  girl,  and  said,  Bet,  I  was 
▼ery  sorry  I  did  not  ask  you  whether  your 
feet  were  not  very  sore  in  walking  barefoot : 
she  sail',  No,  they  are  not ;  1  had  my  shoes 
and  stockings  on,  they  did  not  take  them  from 
me.  This  I  look  u|M)u  to  be  from  the  mother's 
agony  of  mind,  that  made  her  say  she  was 
curoe  home  naked.  I  said,  What  more  had 
you  on?  she  said.  My  under- jietticoat,  and  an 
old  bed-gown,  which  I  found  in  a  corner  of 
the  room  :  then  I  said.  Good-bye,  child ;  and 
went  away. 

Did  the  mother  seem  to  be  pleased  or  dis- 
Dleaieil  at  what  you  said  ?•- She  fell  down  on 
ber  knees,  and  held  up  her  bands,  and  said, 
Thank  God,  my  daughter  is  not  a  whore ! 

Was  ber  mother  angry  with  voti  for  any 
thing  you  said  or  did,  then  or  afterwards  ? — 
8be  was  not  then ;  but  she  was  two  days  after, 
when  I  came  there,  as  I  did  not  go  the  next 
day  before  the  doctor,  as  I  proposed.  Tlien 
there  were  with  her  two  young  women  and  an 
elderly  woman :  I  said,  Mrs.  Canning,  1  am 
come  to  ask  if  Bet  has  had  a  stool  f  she  said, 
.N«.  I  said.  Then  she  must  die,  without  you 
havegiveu  her  glysters,  and  she  has  relief  that 
way ;  and  asked  her,  why  she  did  not  ^ive  it 
her  r  she  said,  she  bad.  1  asked  her,  if  any 
thing  came  off  with  it?  she  said.  Yes,  a  little: 
I  said.  If  nothing  more  came  off,  she  is  a  dead 
girl,  and  all  the  world  can't  save  her  life :  I 
went  and  took  hold  on  the  girl's  right  band 
with  my  left,  an«l  said,  Now  she  sceuis  as 
eold  as  death,  and  if  she  has  no  passage,  she 
must  die,  and  all  the  world  can't  save  her. 

Mr.  Morton.  Was  the  daughter  there  when 
the  mother  was  angry  P—M/y/c.  Yes,  Sir. 
A  young  woman  in  the  room  aaid.  How  can 
you  frighten  the  girl  out  of  her  life,  to  tell  her 
■be  must  die,  when  she  has  no  fever  ?  Then  I 
turned  to  another  woman,  and  said,  Did  vou 
€ver  bear  there  was  such  a  thing  before  r  I 
said,  there  was  one  thing  in  her  favour,  she 
bu  not  beeii  debauched :  1  said.  Reach  the 
shift,  to  this  gentlewoman  (she  was  a  grave 
woman):  I  said.  Let  her  judge  tlie  case,  and 
•ee  that  your  child  has  not  been  debauched : 
when  that  was  reached  out,  the  old  gentle- 
woman said,  1  «lou't  see  any  tbinq^  like  it :  1 
9aid,  Look  over  it  well ;  do  you  think  this  has 
heea  v^ta  thpee  w«ekf  and  Ihreo  days  f  No» 


Trial  ofEUxabefh  Canningf 

f  says  she,  I  dunU  think  it  has,  I  di 
ihat  is  likely.  3Irs.  Canning  said 
no  stool  all  the  while :  1  said,  Het 
^pots  upon  it ;  1  said,  Behokl  iL  T 
Caniiinff^  said.  Do  you  come  here  t 
other  friends  against  me  ? 

Mr.  Davy.  \VUo  was  that  other  w 
E.  Mayle.  I  don't  know  her  name. 

Was  it  Mrs.  Woodward  ?— No,  it 

Was  it  observed  that  there  were  i 
of  her  being  according  to  the  cours 
^voroen  ? — ^That  old  gentlewoman  me 
:ind  Mrs.  Canning  said,  her  daughte 
cold,  and  had  been  out  of  order  for 
four  months. 

What  is  the  mother?— She  is  a  f 
woman  as  any,  and  a  woman  that  I 
much  as  any  woman,  and  the  girl  too 

Cross-examined  by  Mr.  Willia 

What  sort  of  a  character  has  she 
never  know'd  any  ill  of  the  girl,  or  he 
my  life. 

Have  you  been  intimately  acquai 
ber? — I  have,  and  never  heard  any 
upon  ber  character  ;  and  1  don't  nu 
the  mother  was  very  anxious  about  n 
ler  not  being  debauched. 

Might  not  that  matter  of  excrer 
lieen  from  the  day  before  she  wa 
there  ? — It  might,  and  the  mother  I 
then. 

What  was  your  reason  of  being  i 
five  in  this  ? — ^1  was  so,  as  a  lover  of 
a  friend,  fearing  the  girl  had  been  de 

Mr.  Dttvy.  Now  we  shall  prove  i 
dant's  Intbrmation  before  justice  Fi 
order  to  shew  a  material  variance,  b< 
and  her  evidence  on  the  trial,  parti 
respect  to  the  time  of  expending  the 

Mr.  Brogdcn  sworn. 

Brogden,  1  am  clerk  to  justice  Fi 

Mr.  Davy.  Look  on  this  paper. 

Brogden.  This  is  the  information 

beth  Canning,  taken  before  justice 

lite  7th  of  February,  1753.     (It  is  re 

The  Info&mation  of  EuzAncTii  C. 
Alderniaubury  Postern,  London 
taken  upon  oath  this  7tb  d( 
bruary,  in  the  year  of  our  Lord 

*  This  informant    upon    her    oa 

*  That  on  Monday  the  1st  day  of  Ja 
'  past,  she  this  informant  went  to  see 

<  and  aunt,  who  live  at  Saltpetre-I 

<  Rosemary-lane,  in  the  county  of  : 

*  and  contmued  with  them  until  the 
'  and  saith,  that  upon  her  return  he 

*  half  an  hour  after  nine,  being  < 
'  Bcthlem  -gate,  in  Moor-fields,  sh 
'  formant  was  seized  by  two  men,(wl 

*  are  unknown  to  this  informant)  wh 

*  brown  bob  wigs  on,  and  drab-colo< 

*  coats,  one  of  whom  held  her  this 
'  whilst  the  other    feloniously  and 

*  took  from  ber  one  shaving  hat,  one  i 


W] 


Jot  Wiljul  and  Corrupi  Peijttry. 


A.  a  173*. 


♦afld  fine  litien  apron,  which  she  had  on,  and 

(^f„.  ».,if  „  .....„,..  .,,  ...AA   r,,.,\  tf^ree  shilling's 

•ij  Iter,  ihreat- 

•fu - ^.  1-^     ......:..:iiit  and  ihis 

'infiimiani  lailh,  thai  iinriiiMi lately  aflrr, 
'ihfy  file  %nid  Ivrii  mt'ii  viulenvty  took  h'jid 
'ifliff,  «ud  dragged  her  iij*  iiUo  the  gravel 
*nlk    ilt«t    leaus    do^tu    to   the   said    gate, 


*  the  oetk  mooh  broken,  wherein  was  some 

*  wafer,  atid  upon  the  floor  several  jricces  of 

*  bread,  near  lu  qaaniity  to  a  quttrttm  loat, 

*  and  a  small  (larcei  of  hay.     And  sailh^that  the 

*  conlinued  in  this  room,  or  tilace,  from  the  laid 
'  Tuesday   morning  the   Sd   day   of  January, 

*  uniil  about  half  an  hour  after  four  of  IJiectuck 
^           *  in  the  afternoon  of  Monday  the  29ih  d^y  of 

ibrrut    the    middle  thereof,  he  the  said    'the  satne  mootli  of  January,  withotit  having 
"*'"'**'*  '  "'      *  or  receiving  any  other  sustenance  or  provision, 

*  than  the  said  bread  and  water,  (except  a  smalt 

*  mihce-pye,  which  she  this  informant  had  m 

*  her  pocket)  or  tiny  thing  to  lie  on,  other  than  the 

*  said  hay,  and  without  any  person  or  persona 

*  comintj  to  her,  although  bbe  of\en  heard  th« 

*  name  of  Mrs.  and  Mother  Udts  called  upon^ 

*  whom  she  undcrsiood  wm  the  mistress  of  th« 
*■  house.  And  this  informant  saith,  that  on 
»  Friday  the  -jCtli  day  uf  January  last  j^ast,  sh« 

*  thia  informant  bad  consumed  all  the  aforesaid 

*  bread    and    water,   and    continued    urthout 

*  having  any  thing  to  eat  or  drink,  until  tht 

*  Monday  following',  when  she  this  informnnt 
'  being    almost    famished  with   hunger,    and 

*  starved  with  cold,  and  almost  naked  during  tht 

*  uhole  time  of  her  confinement,  ahouthalfau 

*  hour  afttr  four  in  the  afternoon  of  the  said 

*  99th  day  of  January,  broke  out  at  a  window 

*  of  the  said  room,  or  place,  and  gt»l  to  her 

*  friends  in  London,  about  a  quarter  after  ten 
^  the  same  night,  in  a  most  weak,  miserable 
'  condition,  being  very  near  starved  to  death, 

*  And  this    infurmant    gaith,    thai    she    «fcc 

*  since  halh   been,  and    now  is,   in    a   vefjr . 

*  weak    and     declining    stale    and    condition 

*  of  health ;  and  although  all  possible  care  and 

*  assifliancc  is  given  to  her,  yet  whatcTor  small 

*  Dutriment  ^he  this  informant  is  able  to  take, 

*  the  same  receives  no  passage  through  Iter, 

*  but  what  ia  forced  by  the  apothecary's  assist*  * 

*  aoce  and  medicmes.     The  mark  of 

E.  a 

*  Ei,iZABKTU  Can?* wo/ 
Sworn  before  me,  this  7th  day  of  February, 
•JTiU.  H.  FiEtmifG/ 


that    first   held    her,    gave    her  with 

fitt  a  very  vkihnt  blow   upon  the  right 

hich   threw    her    into    a   fit,    and 

'  r  of  her  senses  (nhich  fits  nhe 

ut  Siiith  she  is  accustomed  and 

'    i    •  fri|,^hlened,  and   lltal 

I   six  or  seven  hiiurs), 

>  :^.iuli^  that  when  fihe  came 

M  :eive(l  that  she  was  carrying 

I'  '  two  mtn,   in  a  hirge  rOad- 

^hat  in  a  little  time  dfier  she 

•Aw  uas  able  to  walk  alone  ; 

d    to   pull  her   along, 

U'd  and  affrighled  her, 

ikc  i[iirbi  nut  ciili  out  for  assistance,  or 

m(hf  m.     And  this  informant  saith,  that 

^  an  hour  alter  she  had  so  reco- 

',  they  the  said  two  men  cjarried 

t  into  a  house  (which,  as  she 

id  from  some  of  them,  was 

Ue  morning,  and  which 

niant  Itath  since  heard 

at  Enfield  Wash,  in 

X,  and  is  reputed  to  be 

— ly  bawdy-house,  and  oc- 

'' ^VVtlls.  widow)  and  there 

tit  saw  in  the  kitchen  an  old  gy p- 

and  two  young  women,  whose 

rnknown  to  this  informant,  but 

f  them  this  itiformant  hath 

'•lit^iT?  i^  Virtue  Hall  :  and 

;rsey  woman  took 

1,  and  promised  to 

'   would  go  their 

mant  unaerstood, 

iLiie;  \vjnch  this  informant 

the  laid  old  gypsey  woman 

"    Irawer,  and  cut  the  lac« 

s  informant,  and  took 

■  iff-r,  and  one  of  the 

1  then  the  said  two 

1  she  this  inform- 

rrn  any  of  her  things. 

lb,  that  soon  after  they 

she  this  informant  believes 

iht*  mt^rninn^),  she  the  said 

^ii-i  tnfermatit 

ij  her  into  a 

1  hiylofl,  \Mlhoutany  fur- 

r   in    the  same,  and  there 

-'■...■■:       -'.    ,    :         .    tier 

'■  'se 

11   she   went 

t,  th:U  wheti 

round  to  see 

,  .  she  this  In- 

l^tmaiii  ibfcovrrinl  a  largir  blMrk  jug,  with 


Mr.  Depaty  Motineur  awora. 
Mr.  Deputy  MoUneux,  I  was  at  sir  Cri^p 
Ga8coyne*s  when  Canning  came  there,  at  tho 
lime  that  Virtue  Hall  was  there  ;  sir  Crisp  vTaa 
then  lord-mayor ;  1  and  others  were  desired  to 
^o  and  hear  her  examination  ;  after  my  lord 
had  concluded  hisescamining  of  Virtue  Hall,  he 
turned  to  Betty  Canning,  and  asked  ber,  If 
slie  had  any  thing  to  say  ?  she  said,  No,  she 
had  nolhing  at  all  more  than  she  had  stud  tipOii 
the  trial ;  my  lord  said  nolhing  farther  to  her  j 
the  bed-gown  and  pitcher  were  on  the  table  ; 
Betty  Canning  was  rolling  up  the  bed-go^^Of 
ill  order  to  take  it  away,  as  1  apprehertded  ; 
Diy  lord  Said,  Child,  you  must  not  lake  thai 
ft%« ay,  you  must  leave  that  with  me ;  upon 
which  she  replied,  and  said,  It  is  my  mother's ; 
it  ^hockf  d  me  a  good  deal,  liecause  1  had  beard 
it  said,  that  she  came  home  in  a  bed-gown, 
amJ  that  she  found  it  in  the  room  where  iha 
wag  confined  ;  t  mentttntd  this  to  9^^iTwl  pe** 


431] 


2?  GEORGE  II. 


pie  that  rery  aAernoon,  that  were  very  strong 
advocates  in  the  afiair. 

Air.  Willes,  Did  she  demand  the  pitcher  at 
that  time? 

Mr.  Deputy  Molineux,  I  don't  remember 
•be  did. 

Cross-examined  by  Mr.  Morton. 

I  had  not  asked  you  a  question,  if  I  had  not 
found  you  was  at  the  examination  of  Virtue 
Hall:  were  you  there  upon  the  first  of  her 
being  brought  in  to  be  examined? — I  was,  the 
first  of  that  duy. 

Had  she  recanted  that  day  ? — I  had  beard 
that  she  had  ;  I  heard  my  lord- mayor  say  he 
had  gone  through  the  examination. 

Were  you  there  the  day  before  she  was  exa- 
mined publicly,  the  day  when  shie  recanted  ? — 
]So,  1  was  not. 

Samuel  Reed  sworn. 

Reed.  I  was  present  the  time  Mr.  Molineux 
speaks  of.  J  very  particularly  remember  she 
was  going  to  fold  up  this  bed  gown  ;  my  lord- 
roayor  said,  Child,  you  must  not  have  that ; 
she  said.  It  is  my  mother's ;  which  struck  me 
▼ery  much. 

Mr.  Nares.  Did  any  body  ask  her  to  ex- 
plain what  she  meant  by  it  ? — Reed,  No,  Sir. 

Mr.  Davy.  We  have  several  witnesses  to 
call  to  the  characters  of  those  who  have  been 
examined ;  and  desire  to  know  the  pleasure  of 
the  Court,  whether  we  shall  call  them  now,  or 
atay  till  they  are  attacked. 

Court.    Stay  till  they  are  attacked. 

Mr.  Davy.  Then  we  have  done  for  the  pre- 
ient. 

Mr.  Morton  (aflerwards  Chief- Justice   of 
Chester). 

May  it  p'ense  your  lordship,  nnd  you  gen- 
tlemen of  the  jury  ;  I  am  counsel  in  this  cause 
for  the  unfortunate  prisoner  Klizabeth  Can- 
Diug;  and  unfortunate  sh^  certainly  is,  whe- 
ther, upon  the  whole,  you  siiall  think  her 
guilty,  or  acquit  her  of  the  heinous  crime  of 
which  she  now  stands  indicted.  For  guilty  of 
such  an  offence,  at  her  years,  she  cannot  hare 
been,  without  having  been  very  unfortunate  in 
a  most  profligate  uml  abandoned  education ; 
and  should  you  think  her  innocent,  most  un- 
fortunate must  she  surely  be  thought  by  alt, 
because  she  is  now  brmtirht  to  answer  for  a 
roost  foul  offence  in  herself,  merely  for  having 
done  her  duty  in  prosecuting  others  for  the 
most  unheard-of  violation  of  her  oivn  person 
and  property,  and  the  laws  of  her  country. 
But  the  more  unfortunate* such  an  accusation, 
under  such  circumstances,  renders  the  de- 
fendant, the  more,  1  am  sensible,  she.  will  t>e 
entitled  to  that  patience,  which  you  have  al 
readv  shewn  in  the  progress  of  tbis.trinl.  And, 
gentlemen,  when  I  consider  hQ>W'  long  that  pa- 
tience and  attention  has  been  already  exercised, 
^ben  1  see  before  me  that  even  short  minutes 
have  swelled  to  oo  less  than  aiz  or  ae? en  sheets. 


Trial  ofElizabeik  Canning,  [4S! 

I  am  too  sensible  that  I  hare  neither  abilil; 
nor  exfierieuce  to.  do  my  client  that  justice 
which  the  extraordinary  nature  of  her  case  re 
Quires.  But,  as  I  have  been  unfortunate!; 
faxed  upon  for  my  present  station,  I  hope,  tb' 
great  length  of  the  trial,  the  tfreat  pains  takei 
by  the  gentlemen  on  behalf  of  the  prosecution 
the  numerous  facts  and  minute  circumstance 
that  have  been  laid  before  you,  will  be  some  « 
cuse,  at  least,  for  the  many  defects  and  omis 
sions  that  will  appear  in  my  opening  for  thi 
defendant.  Ana,  before  1  go  into  the  parti- 
culars of  the  case,  1  shall  premise  and  agrei 
with  Mr.  Davy  in  his  opening,  that  if  the  per* 
jury  was  corrupt  and  wilfully  false,  it  is  one  ol 
the  most  abominable  and  horrid  pieces  of  oor* 
ruption  ever  brought  into  a  court  of  justice:*! 
falsehood  the  most  cruel  and  impious  !  So  mi^ 
so,  that  1  will  also  agree  with  him,  that  Hit 
should  appear  by  the  course  of  the  whole  cii* 
deuce,  that  the  defendant  was  never  in  tt« 
house  of  Susannah  Wells,  and  that  Mary 
Squires  was  not  the  actor  of  the  mischief  then 
supposed  to  be  done.  Canning's  magnitude  at 
offence  deserves  even  a  particular  law,  wbicw 
this  country  has  not  yet  thought  proper  to 
enact  in  cases  of  perjury. 

But,  gentlemen,  you,  as  a  jury,  will  guard 
your  judgments  agaiust  all  impulses,  which 
must  necessarily  arise  fr(»ui  considerations  of 
this  nature,  from  reflections  on   the  conse- 
quences of  the  crime,  into  the  truth  of  wbieh 
alone  you  are  now  to  inquire.    Facts  alone  art 
the  proper  objects  of  your  attention :  and  glad 
I  am,  for  the  sake  of  justice  and  truth,  that  a 
fact  of  this  importance,  I  say,  of  this  im|MNi- 
ance  (for,  in  a  free  country,  the  nature  and 
circumstances  of  the  crime,  not  the  condition 
of  the  criminal,  makes  every  inquiry  more  or 
less  important)  is  to  be  invcstit^ated  and  detsr- 
mined  by  a  jury  of  distinguished  property  sad 
integrity — by  a  jury  selected  by  the  prote- 
cutor,  in  a  manner,  I  believe,  unparalleled  ia 
any  prosecution,  when  the  crown  is  not  (fi* 
rcclly  concerned:    for,  I  believe,  gentleineb, 
that  you  are  the  selected  choice  of  the  proie* 
cutor,  after  no  less  than  seventeen  challeiigei: 
and  therefore,  surely,  the  prosecutor  cau  now 
have  none:  the  defendant,  1  believe,  never  bid 
any  diftidence  of  tlie  impartiality  and  ability  of 
any  jury,  legally  returned  from  the  citizens  of 
London. 

And,  gentlemen,  in  making  such  obsenri- 
tions  as  may  occur  to  nie  to  be  material  for  tbo 
defence  of  my  client,  1  shall,  in  the  outset,  beg 
leave  to  remind  you,  what  the  accusation  U 
atrainst  this  girl  now  at  the  bar:  it  is  for  wil- 
ful, malicious,  and  corrupt  perjury,  comniitied 
in  this  court,  and  that  with  the  aggravated  CV- 
cum&taiices  of  being  dcMirnc^d  to  destroy  tba 
life  of  an  innocent  fellow-creature.  Let  ip* 
ad^.  that  this  crime,  gcntlemrn,  is  supposed  V^ 
be  committed,  when  the  defendant  was  uiidor 
the  age  of  19  years. 

This  charge  has  l)een  fully  opened  by  M^* 
Davy,  and  endeavoured  to  l>e  supported  tbit* 
manner  of  ways :  the  first  (whicn  hu  btft 


*33] 


fift  Wilful  and  Corrupt  Perjury. 


A,  D.  1754» 


[43i 


BMlfftM  Dpon,  tnd,  1  think,  witli  the  prose- 
enfiar*!  c^'tt^— •  i-  *V-  most  material  part  of  ihe 
(tt^)  ii  1  4 1' of  ^lary  Squires,  and 

ifcipmiLv  ^i,...A  ii:,',  tiave  brought  of  sevenil 
pruMii  bcinsf  in  the  place  of  Canning^i  coti  - 
naeaeDtt  during  the  time  she  sa^s  she  wa<$ 
tbtrr*  If  both  these  are  proved,  heyond  all 
ility  of  doubt  in  your  roinds,  then  you 
I  cooctitrfe  Cannitigf  could  not  twear  true  in 
lh»  iBCDoer  the  hns. 

The  teeood  ruHhod  of  proting  this  heavy 
cliirfe«  if  ^otleavoured  lo  be  made  out  from  the 
jnem^ility  of  tb«i  defendant's  ovrn  story  ; 
•M  tlie  third,  by  her  own  conduct^  in  the  de- 
li|i  lad  pm  1  r  \  ken  in  not  appearing  to 
uke  an  rari  -e.     Mr.  Wdles  miikes 

)  §i  a    f  ei  >    icniurkaMe   expression,  well 
,  in  the  Jaw 'books,  fu gam  fecit  y  she  has 

I  ju-»'r»  '  "Fid  from  thence  iiroii!d  iu- 
I  i9  confe-ssing  her  own 

',  J  n  1 J  ihiB  fact  was  at  all  ob- 
bccftuae,  if  it  had  not,  I  might 
at  lilwrty  to  hate  passed  over  cir- 
of  \teTfionB  and  things,  which  I 
«wi  Ji9«  take  notice  of,  in  order  to  shew,  that 
lli dd^y^af  this  day *M  trial  can,  in  no  humane 
mi  ^partial  breast,  be  any  evidence  of  Can- 
■iif'^  guilt ; — was  a  step  that  ever^*  penon,  in 
braittiaitpy  i^UuatiOii^  would  have  taken*  was 
iaadtttE  ;'  '  ,e,  who  had  thi*n  the  care  of 
iMide^ii  f  have  been  void  of  eommnn 

9mtt  •'  lit  advised  it. — ^For,  sr*^utlt*- 

Brti,  III  :  .,    who  would  trust  the  trial 

toil  l«»i  M.i   i.ti.,.   ciiararler,  and  thftr  liberty 
i^pcndmg  therein,  to  ilie  aatue  par^oir,  both 

rme  m-li/*'  ami  prosecutor  ? 

tcgemh  may  have  attempted 

,    iliat  such    impartiality    liiis 

^,«-lhal  A  judife  Uh^  even  condemoedi 

to^pnfed  irentence  on  himneir; — v<**»  in  lliese 

k>p  ,   when  men  are  nt  l^beity  lo  liee 

te'  r  themeelveMi  such  tradifioni  uill 

ic  any    nnin,    endued    wiih   the 

1/  facHilties,   not  lu  wish  lite  pro- 

mI  pro!vecu(or,  nt  least,  ujay 

i  nidepenrh'nt  in  this  country. 

nil  mil  even  llic  renuitfst  thought 

V   rrAection  on  the  integriiy  mod 

i.uy    of  Ihtwe,   who  preside   in  our 

th'^ae  limes. — There  never    was    a 

II  th^*  siifii.'rt  %vaB  efjually  secure  in 
x  by  no  meao^  follow 

1      '    :   ^ings,  inseparable  from 

»re,  are  not  to  be  i^uarded  against 

»*,  who  rnay  aufter  from  them.     And 

prrjudice  lo  onr  own  cau«ie,  is  such  n 

,  is  Ml  obvioos  to  every  candid   mnn^s 

lirfaft, — thnt  no  cnad^  with  nny  pretence 

i»tu  afirt|*la  heart,  would  Imiil  himself  in  such 

■':  M-.i  :  ,     '.'tr  niuil 

M  come 

-,  wwru  or  Hu  [iriipifiij  j.>r«:5Jitfcii  in  me  m3g^S< 

1^  of  lht«  ciiy. 
liur  .^^nt  ^nji  another  known  reason  ot  this 

.  £tutOfio«it,  tlie  girl  was  (and  from  mo- 
"l|o  l*c  diaftvowtd  hera,  or  iu  any  other 


[■ 


court)  advised  to  remove  her  cau^e  from  thi« 
place,  to  the  supreme  court  of  all  cnmrual  pro* 
ceedini^ii  in  Wealmin<-ler-halL 
^    Was  this  a  step  that  looks  like  an  evasion  { " 
jufltice  ?  Do  those,  who  hope  to  elude  the  fore 
of  justice,  voluntsrily  appri»ach  the  most  awfu! 
tribunal  ?  Happy   unt;bt  it  have  been  for  herf^l 
and  for  the  course  of  justice,  had  her  design?! 
and  attempt,  in  this  particular,  been  agreeabtc  | 
to  (he  rules  of  that  court :  for,  however  satis*  [ 
tied  I  am,  that  all  here  wish,  and  mean,  to  d(t\ 
complete  justice  ;  yet  the  obstructions,  whicltf] 
we  have  here  met  with  from  a  licentious  rabbl«  I 
(the  effect  of  which  on  some  men's  minds  nor  j 
one  knows)  would  probably  have  been  avoicledi^  J 
could  the  defendant's  choice  of  a  more  solemtij 
trial  have  been  couiptied  with. — But  no  sooner! 
was    one  just  cause  of  delay    removed  ;    na* 
sooner  was  the  other,  as  just  reason^  not  to  be  ] 
complied  with,  by  the  course  of  lesrul  proceed- 
in;4^  ; — than  Canning  immediately  submitted  19  | 
her  defence  in  the  place  she  now  stands. 

If  therefare  I  have  wiped  otf  all  aspersions  of  ] 
lier  guilt,  from  a  supposed  intent  lo  avoid  hef*  I 
tiial, — wliat  argnmenls  may  1  not  jtistly  raise  f 
in  favour  of  her  iunoceocCy  from  her  appear*' 
a  nee  here  at  all? 

ff  she  was  conscious  of  the  least  fear  of  con* 
viclion, — (and  what  person,  really  guilty,  it  ^ 
free  from  these  fears?) — Why  d»d  not  sh^ 
make  her  flight  from  justice  P  8 he  had  not  evea 
gratitude  to  detain  her.  No  friends  were  ttj 
suffer,  either  in  person  or  fortutie^  by  her  flight* 
She  H  as  under  no  recognizance,  either  by  self 
or  friends,  ' 

In  opposition  to  even  the  remotest  appT*e* 
hensiou  of  the  punishment  of  the  crime  ol  per^ 
jury  (and  especially  such  a  perjury,)  could  the 
place  of  Canning *s  abodu  be  the  object  of  a  mo* 
mentis  doubt?  Whether  a  servant  in  I^ondon, 
or  elsewheie,  must  be  surely  very  indi^erent  t»' 
one  in  her  station* 

It  may  possibly  be  some  comfort,  even  to  he 
a  servant  in  England,  preferably  lo  other  coun- 
tries. But  supfHjse  her  only  ajiprized  of  the 
nature  of  her  crime,  and  she  mubt  know  her 
residence  here  of  a  very  short  duration.  Undef 
such  circumstances,  therefore,  can  any  one 
doubt,  that  such  a  delinquent  would  not  have 
made  her  ow  n  choice  of  her  place  of  exile, 
especially ,  when  by  such  choice  she  should 
have  avoided  the  most  severe  part  of  her  i 
ptmishmeut,  if  {guilty, — that  of  slavery  ? 

I  hope  iherelore  the  imputalion  of  her  guilt, 
at  least  from  this  circumstance  mentioned  b^ 
Mr.  Willes,  is  entirely  wipeil  off. 

1  must  now,  gentlemen,  beg  leave  to  make 
two  or  three  otMervatktns,  lu  offering  to  yoia 
my  thoughts  on  the  prosecutor's  own  case,  af 
it  stands  unanswered  by  any  fads  on  our  side« 
And  in  this  part,  1  shall  invert  the  order  laid 
doivn  by  my  two  learned  fri^ids,  1^1  r.  DavjT 
Mu\  Mr.  Wiltes;  and  bfgin  first  with  the  im-* 

fkrobabitiiy    objected    to  Ctintiirig's  own  lal«, 
jecttus**,  (I   think,)  even  allowing  the  improba-*  I 
biUty  of  her  story  to  be  a  sufficient  proof  to 
ground  a  CQQvictiuii  of  perjury  on,  1  can  by  no- 

2  F 


27  GEORGE  IL 


435] 

meiiif  thiok  there  is  a  greetcr  ilme  of  imi 


TridoJEUxahdhCambig^ 


npro- 
tbere 


bebilfty  \m  the  defeodant'f  relatioo,  tban 

if  io  uumy  parts  of  the  aooooot  giren  to  eoo- 

tradict  the  truth  of  it 

It  would  be  endleei,  io  this  place,  to  foUoir 
the  learned  geotiemeo's  example,  and  to  ob- 
aerfe,  as  minotely  as  they  bare  dooe,  oo  the 
sef  eral  fads  related  by  Canoiog,  and  their  e? i- 
denoe  to  disprore  them. 

1  shall  therefore  coofioe  mysdf,  on  this  head 
of  improhibility,  to  the  general  facts  related  by 
Canning  in  her  own  story,  and  to  some  general 
olyections,  which  that  reUtion  has  furnished 
the  prosccotor's  learned  counsel  with. 

And  what  are  their  oiNections  to  the  unpro- 
bability  of  her  story  ?  They  consist  in  the  cir- 
cumstances of  the  time  of  her  absence,  the  na- 
ture of  the  pUce  of  her  confinement,  the  par- 
ticular manner  in  which  she  led  her  life  there, 
the  aeeminffly  surprising  account  of  the  first 
robbery. — I  cannot  for&ar  obser? ing  in  this 
place,  to  what  forced  and  strange  obsenrations 
•n  facts  one  of  the  gentlemen  was  driven.  In 
order  to  keep  alire  his  own  cry  of  improbability. 

Mr.  Danr,  I  think,  endearoors  to  raise  fife 
different  o^edions  of  improbability  from  his 
obserraiions.— The  first  is,  it  b  very  strange, 
saj^s  he,  that  there  should  appear  no  premedi- 
tation prevMus  to  the  rubbery  in  Moorfields.— 
Mr.  Davv  has  had  much  more  experience, 
particolarhr  in  this  court,  than  1  have  had.—! 
was  thererore  the  more  surprized  to  bear  snch 
mo  observation  come  from  a  gentleman,  who 
must  have  heard  so  many  unhappy  wretches 
tried  in  this  place,  for  crimes  that  would  be 
donbly  shocking,  did  all  the  circumstances  ap- 
pear the  effect  of  design  and  premeditation  in 
the  antbors :  and  sbalT  it  then  be  urged  as  an 
argument  of  everv  felon*8  innocence,  that  we 
are  not  able  to  shew  that  his  guilty  act  was 
deliberately  premeditated  ?  Such  reasoning 
would,  I  apprehend,  be  as  effectually  service- 
able to  villainy  as  a  general  pardon. 

The  next  improbability  is  made  to  arise  from 
the  very  great  danger  which  these  robbers 
(whom  Mr.  Davy  roust  still  suppose  to  be  all 
coolness  and  deliberation)  naturally  foresaw  in 
carrying  Canning  mi  far  from  the  place  of  her 
robliery  to  her  priscin. 

But,  for  my  own  part,  only  ^appose  any 
robliers,  for  once,  rash  enough  to  commit  any 
robbery  at  all,  between  nine  and  ten  o'clock  at 
night  in  the  middle  of  winter,  in  such  a  place 
as  Moorfields,  (and  I  would  to  God  every  day 
did  not  afford  instances  of  sucb  unpremeditated 
rashness)  and  where  is  then  the  improbability  of 
the  subsequent  alti^mpts? 

Js  It  improbable  that  such  villains  should 
not  at  once  l»o  Hatisficd  with  the  trifling  sum  of 
money,  aud  the  {;oun  and  apron  ? — Is  it  in  the 
lra»t  increthbit',  that  those,  who  uerc  either  of 
Mrs.  U'ells's  or  Mrs.  8quire«'s  gang,  should  be 
de«iruu8  of  adding  one  more  prostitute  to  the 
retinue  of  this  notorious  bawd,  or  smuggling 
gyiMiey  ? 

Mr.  Davy  was  so  drove  to  support  the  im  • 
probability  of  Canning's  relation  m  this  part  of 
1 


[ISC 

his  observation,  that  w«  are  nov  told,  Tobbcn 
themselves  must  be  thought  so  wary  and  dr 
cumspeet,  that  they  most  even  have  appie 
bended  immediate  mscovery  from  the  rcMMt  d 
those,  who  go  to  see  the  unhappy  inhabitant! 
of  one  side  of  this  square,  what !  heiwea 
nine  and  ten  at  night ! 

If  the  learned  gentleman  has  not  alreadj 
gratified  this  curiosity,  I  hope  he  will,  at  least 
chuse  a  more  seasonable  hour,  Icat  the  kecpcn 
there  may  he  led  to  mistake  the  oMitive  or  m 
unexpected  and  iinaeasooable  a  mit 

We  are  then  to  see  this  improbahilhyfim 
the  known  humanity  of  street-iobbera. — Than^ 
he  thinks,  were  never  cruel  on  purpose. — TUi 
ia,  I  own,  an  observation  of  great  good-natna 
I  wish  there  was  the  least  foundation  in  6d 
for  the  support  of  it — But  because  we  caH|i| 
assign  a  motive  or  reason  for  every  initaam 
of  cruelty  and  barbarity  these  ruffians  imnndl 
are  we  to  shut  out  all  belief  that  such  actaii 
▼iolence  are  committed  ? 

Because,  therefore,  there  is  no  dcaigB  s( 
murder  proved,  we  must  not  believe  that  thcM 
humane,  these  deliberate,  these  wary  robheri 
could  be  tempted  to  offer  any  violence  to  Can* 
ning  that  was  not  absolutely  necessary  It  a  sop« 
posed  premeditated  dedgn  of  robbery. 

There  is  one  nH>re  observation,  and  thal( 
perhaps,  might  afford  an  argimoent  nf  impt» 
babilitv,  and  that  is  the  prisoner's  great  cautioi 
in  husbanding  her  water ;  for  now  I  am  ao 
company  ing  Mr.  Davy  in  his  observationa  al 
Enfield-  Wash.  But  how  does  this  appear^  thai 
she  did  husband  her  water  at  all ;  in  the  maoM 
Mr.  Davy  supposes  ? 

Canning's  evidence,  or  relation,  at  no  OM 
time,  or  place,  justifies  this  observation :  all 
she  tells,  or  swears,  is,  that  the  bread  ad 
water  lasted  to  sucb  a  lime;  but  no  when 
does  she  relate,  how  reguhur  she  made  ImI 
meals.  H  there  is  a  possibility,  that  this  bred 
and  water  was  sufficient  to  sustain  humai 
nature  twenty-eight  days,  all  that  part  of  thf 
case,  of  Mr.  Davy's  eking  it  out  ounce  b| 
ounce,  falls  to  the  ground. 

Another  observation  was  made,  which  wooU 
appear  of  some  weight,  if  founded  on  fad^ 
either  admitted  or  proved. 

Says  Mr.  Davy,  if  she  had  a  mind  to  escape 
she  might,  every  hour  of  tbe  day,  have  pusbM 
out  the  plaister-wall.  She  did  attempt,  slk 
says,  to  open  tbe  window,  and  could  not  B«l 
where  is  there  any  proof,  or  admission,  ths) 
she  might  have  escaped  every  hour  of  the  day 
if  she  would?  Another  improbability  is  % 
arise,  that  tbe  people  never  came  to  see  whe 
ther  Canning  was  there  or  not.— But  thi 
once  more,  restiog  solely  on  Mr.  Davy's  ima 
gination,  wants  a  support  of  proof.  Cannini 
herself  says,  she  once  saw  a  person  look  thmogl 
the  crack  of  the  door,  to  see  if  she  was  gone.- 
From  whence,  therefore,  are  we  to  colled 
that  this  improbability  ever  did  happen  ?<— Ffl 
might  not  this  observation  throngb  tbe  end 
be  repeated  a  himdred  timet,  and  Gaoning  ^s 
observe  it? 


07) 


^r  tViiful  and  Cormpt  Perjury* 


A*D.  1754% 


r' 


W»  trt  noir  oofne  lo  the  last  ami  peat  ob< 
JktiAa,  vliirli  »  ft>f  eter  to  ofrfttiro  inis  story, 
All  tfee  fivot  of  imfirohability  :  tliftt  is,  that  Cau- 
siog  ftliDuItt  return  from  the  Wash,  nithout 
Mmilftioff  lA  lake  loy  shelter  till  the  reached 
lir  oiTD  boitte.  Tbt«,  I  ailmit,  is  a  fail  re- 
'  I  by  herself,  and  she  is  consistent,  in  thrs 
of  her  *tory,  on  every  relation  Kif  it;  bot 
.  gentlemen,  to  jnd^e,  what  in- 
^f.  Mrnhahihty  arlges  from  hence* — Is 

It  ^>&i<':  '  ^nr  to  determine,  in  your  own 

flUMb,  w  1  be  the  conduct  of  any  ooe» 

virnirv  {M^{He,  in  sueb  aaituation  c*  Different 
and  different  resolotioni,  would  be 
by  f  cry  different  ideas,  under  such 
I. — And  ilierefore  1  submit,  that 
of  improbability  can  be  drawn 
cotiduct  in  €anniD|v,  that  would  not 
fnrntshed  Mr.  Davy^s    speech, 
fttted   a   quite   different    part»    and 
bur  flory  known  at  the  lirst  boose  she 

Hr.  wvy  baring  now  Bniahed  his  chain  of 

Hw,  and,  as  he  supposes,  entirely  de- . 

all  pretence  to  truth  in  Canning's  nar- 

yn  thinks  il  necessary  to  ask  one 

— wan  ever  a  story  attetided  with  such 

lb:  iiicoheretit    circumstanres  f 

^Mble  thing's,  many  ^^ry  in- 

nncw,  U;ive  happened;  and  therefore 

llaafely  answer  to  tius  doocfhty  question, 

I  think  as  ioi probable,  as  incoherent  cir- 

inrcs  have  been  true.     But  the  (irnilt  or 

«ticr  of  the  defendant  will  not  receive  the 

lifllt  or  assistance  from  either  question  or 

'ore,  allow  snch  refined  observa- 
I  rtirvst  latitude,  (and  as  they  have 
by  the  prosecutor's  counsel, 
^eu  to  take  some  notice  of 
a)  x&A  let  ux  then  see,  where  just  nbserva- 
xmsm  on  focta  win  turn  the  weight  of  impro- 
libility. 

This  b  ft  fact  not  disputed.  Canning  was 
arlainfy  mblillg. — That  she  trave  a  particuhir 
aeDssat  of  her  sbaenoe  on  her  return  home, 
laotiarT  ^,  1755,  is  not  dispirted. — 8lie  hus 
fvticalar  in  cirrntmstances  of  place,  persons, 
sad  ibin^:  the  remarkable  pitcher  now  be- 
ftrv  yoti  in  partinilar. 

Now  on  this  state  of  facts  all  uncontradicted, 

permit  roe  only  to  ask  a  few  questions,  as  the 

pnnTC-st  answer  that  can  be  given  to  the  ob- 

rii  fiQ  the  brad  of  improbability.      If 

^  was  absolutely  ignorant  of  the  place 

linf  Aftfl  resolved  to  charge  as  her  jirison,  could 

ib»  btf*'  verinired  to  mentiou  any  one  circum- 

tti:  S?     In  such  a  sort  of  room,  OS  the 

|«  mself  e«  allow  she  did  describe, — 

y  would  have  be<fn  a  hazartlous 

';iii,   ibat  she  should  descend  to 

now  produced,  was  risking 

crutnatance,  that  would  fail 

Tbc  T.  I  of  Squire^^  atampe^f,  a»  Mr. 

Ikfy  si^_^  -J  Ci  id,  Willi  a  particularity  never 


to  ^  on  such  a  person  ?  Though  Cannin|r  was! 
not  equal  in  her  description  ot  Squires**  defor- 
mity with  Mr.  Davy,  the  account  of  the  per- 
son who  robbed  her  is  too  remarkable  to  pro- 
seed  from  mere  invention. 

Now  il  is  certainty  most  probable,  that  if  any 
person  at  all  hail  been  described  to  Canning,— 
it  must  have  been  Wells  : — for,  according  to  the  j 

Erosecutor*s  account,  Squires  had  come  ihert 
ut  a  few  days  befure  Canntng^s  return  home  i 
and  yet  Canning's  description  neither  did  fit,  | 
nor  would  she  charge  Wells  on  sight.     The  ] 
person  of  Wells,  even  by  tfie  prosecutor,  waa 
supposed  as  unknown  by  Canning  as  that  of  | 
Squires.   The  name,  indeed,  of  Wells  or  Wills,  r 
(now  too  supposed  by  the  prosecutor  to  have 
been  named  by  iScarrat  to  Canning)  was  men- 
Itoned  by  her  at  her  fir^t  return, — and  from  this 
circumstance  every  body   had   predetermined 
naother  Weils  for  the  rob'ber— Mr.  Willes  aa*  ^ 
siircs  you,   nobody  dreamed   of  a  gypsey.— 
Every  body  had  fixed  on  Wells,  as  she  waa 
known  to  be  the  mistress  of  the  house,  and  as 
the  hoase  was  infamously  known  to  be  capable 
of  harbouring  those  that  were  capable  ot  any 
villainy. — ^Every  body  therefore  fixed  their  at- 
tention on  Wells. — ^And  yet,  gentlemen,  the  ! 
prosecutor's  own  witness,  Mr-  Aldridge,  lella 
you,  that  Squires  was  directly  pitched  on  by 
Canning. — She  could   not    have    been    more 
ready,  if  she  had  received  her  description  from 
Mr.  Davy, 

But,  gcntlenaen,  arguments  and  inferenceg 
on  evidence  of  this  kind  would  be  eudless.^ — Ne 
deduction  from  thern  can,  or  ought  to  conclude 
your  judgmeot  on  a  charge  of  this  kind  :  yet 
the  gentit-meo  for  the  prosecution  have  through* 
out  grounded  all  their  argument  on  this  head, 
that  some  story  was  necessary  lo  be  forged.— 
Suppose  this  granted,  in  order  to  argue  witll, 
tiiem  in  their  own  way,  let  me  ask  them, — 
could  a  weak,  illiterate  woman  (however  sup- 
ported) have  either  invented,  or,  when  in« 
vented,  be  uniform  in  the  proof  of  it?  Would 
any  one^  endued  with  the  most  common  share 
of  understanding  herself^  or  assisted  by  those 
%vbo  were,  have  taken  stale  so  very  difficult  to 
have  gained  l>olief? 

Surely;  a  description  of  persons,  places,  and 
things,  really  nut  existing,  would  as  probably 
have  guined'  belief,  and  yet  have  been  much 
more  easily  managed,  in  case  of  more  particu- 
lar inquiries. 

But,  however  strange  many  of  the  circuia- 
stances  of  this  tale  may  seem,  I  apprehend  it  la 
not  so  destitute  of  all  presumptive  proofs,  ■• 
has  been  contended. 

1  have  before  said,  no  one  doubts  that  Cao^ 
ning  was  missing.  That  the  condition  of  her 
body,  on  her  return,  was  most  miserable,  has 
been  proved  by  some  of  the  prosectttor*s  wil- 
n elites ;  will  be  confrrmed  by  snch  of  ours* 
whose  characters  and  stmions  place  ihem  above 
all  Nuspicion  of  being  privy  to,  or  capable  of 
st]p|iorting  a  fraud  ot  any  kind. 

The  same  will  prove,  that  several  symptoms 
^•Wforgetlen— 'ffouUI  Canmog  hare  ventured  i  attending  this   unhappy  girl's   iUuctfti  w«e   ^ 


499] 


27  GEORGE  IL 


unerrinsT  tokens  of  some  moit  eitnordinary 
treaiment  iihe  had  received. 

The  answer  atteinpled  to  these  uoGOotra- 
dieted  factv,  is,  all  this  uas  practiKed  for  the 
sake  i)f'  i?ain — to  h«'Ciiine  a  false  object  of  cha- 
rity, or  more  probably,  says  Mr.  Daty,  to  cover 
the  reproach  of  whiiredoro.  To  this  answer  I 
will  make  oo  other  reply,  than  ask  this  one 
qneslioii, — what  faci  of  distress,  however  no- 
cuDi  rover  led,  may  not  he  supposed  to  have  pro- 
ceedetl  from  a  design  to  deceive  and  impose? 
—And.  in  this  instance,  we  have  had  nothings 
but  mere  suppositions  to  bduce  yoor  belief,  that 
all  Caiinini;'s  sufferiiif^  were  fraudulent 

I  will  treHpass  with  only  one  quebtiou  more, 
on  the  head  of  improbahiliiy.  Caimioi;  was 
missing — where  was  she?  Afler  more  than  a 
twelve-month's  inquiry 7— that  inquiry  backed 
with  as  active  a  prosecution  as  ever  was  carried 
00  in  this  kingdom — that  prosecution  made  the 
universal  object  of  ar)(umeot  and  curiosity — 
and  yet  not  the  least  surmise  of  anv  other  place 
of  confinement  than  that  alledged  by  CaoDing 
herself.  To  this  we  have  had  no  other  account 
than  Mr.  I>avy*s  bare  opinions-she  was  se- 
creted somewhere— to  conceal  a  pregnancy-^ 
or  to  get  free  of  disorders  incident  to  the  gay 
mod  voung. 

If  this  was  the  fact,  I  shall  venture  to  pro- 
nounce she  might  have  made  more  of  ber 
means  of  secrecy,  than  by  any  distress  she 
could  counterfeit,  even  in  these  charitable  days. 
—But  to  give  such  a  sup|>osition,  as  Mr. 
Davy's,  the  least  colour  of  truth,  we  must  sup- 
pose that  Canning,  poor,  illiterate,  and  friend- 
less, has  succeeded  m  an  attempt,  that  money, 
art,  and  friends  have  scarce  ever  effected. 

I  will  tlierefore,  leave  this  part  of  the  prose- 
cutouts  case,  upon  which,  1  am  sensible,  I  have 
taken  up  mure  of  your  time,  and  the  court's, 
than  may  have  been  necessary ;  not  only  as  1 
think  the  supposed  motives  of  all  Canning's 
story,  at  least,  as  improbable,  as  the  facts  re- 
lated by  her  ;  but  also,  as  I  hope  this  will  be  the 
last  prosecution,  where  1  shall  near  a  conviction 
of  wilful  and  corrupt  peijury  contended  for  on 
the  mere  improbauility  of  any  facts,  which 
have  been  cre«lited  by  twelve  men  on  their 
oaths,  and  that  too  iu  a  case  where  the  merci- 
ful ear  is  ever  most  open.  Since,  gentlemen, 
it  is  not  to  be  denied,  here  at  least,  where  I  can 
vouch  the  annals  of  this  place  for  my  assertion, 
—that  things,  seemingly  impossible  for  human 
power  to  have  |»erlormed,  have  been  proved 
true — things,  the  most  unlikely  to  be  attested 
as  true,  if  false,  have  been  credited,  and  yet 
have  been  utterly  false. 

There  are  two  known  instances  of  this  kind  : 
the  one,  that  most  imprvibable  ride  from  a  place 
near  this  city  to  York  in  one  day,  on  the  same 
horne :  1  had  almost  said,  as  improbable  a  per- 
formanse  as  ftlr.  Davy's  flight  round  the 
atmosphere !  yet  this  was  a  certain  fact  done, 
was  attested  and  believed  in  this  court,  and  by 
that  proof  the  prisoner  was  acquitted  of  a 
itibbery,  which  be  confessed  himself  actually 
goihj  of,  at  toon  at  acquitted.— Under  tlie 


Tfiai  of  Elizabeth  Canningf 
other  head,  is  the  well 


[440 

otonr  of  a 
steward's  son  betonging  te  a  noble  family*— If 
I  remember,  it  was  the  Gainsborough  ramily ; 
but  that  is  not  material.  There  the  steward 
was  missinir,  and  a  large  sum  of  money  sup- 
posed to  have  been  taken  from  him ;  his  owa 
son  accused  himself,  bis  mother,  and  bis  sistSTt 
of  the  murder  and  robbery,  and  that  they  had 
thrown  the  body  into  such  a  pit.— The  pit  was 
searched,  and  no  body  found;  and  yet,  ■■ 
the  son  persisted  in  his  own  accasatiOB,  thcj 
were  indicted,  tried,  and  hanged.-^ Yet,  aone 
time  after,  the  father  returned,  gave  a  partiea* 
lar  account  of  his  absence,  and  the  cause  of  iL 
— Now,  in  both  these  instances,  who,  on  the 
first  relation,  couUl  either  assent  to  the  truth  if 
the  one,  or  would  doubt  the  truth  of  the  other  F 
—And  yet  th^  one  was  uncontrovertibly  p 
to  he  true,  and  the  other  demonstramy  I 
I  mention  these  facts,  to  shew  the  great  T 
of  acquitting  or  condemning  against  p 
proof  on  oath,  on  refined  arguments  of  i 
Lability,  which  we  see  are  thus  cspable  of 'de- 
ceiving. 

And,  indeed,  I  cannot  but  ezpren  aoost  de- 
gree of  wonder  in  this  place,  that  a  poiot  of  thk 
nature  should  have  been  thus  laboured  by  the 
prosecutor, — as  he  has  contended  for,  andhaa 
endeavoured  to  produce  proof  of  facta,  whiob, 
if  credited,  would  make  all  resort  to  suppeotion 
useless. — I  infer,  therefore,  that  even  touchinf 
on  suppositions  and  arguments  of  improbabilitf 
implies  a  diffidence  in  their  proof  of  fiicts. 

But  having  done  with  this  part  of  the  or~ 
which  rests  on  the  bead  of  improbability,  it  1 
remains  to  examine  how  the  charge  11  otk 
wise  supported  ;  and  how  it  is  tobeanaweni 
on  our  part.  And,  after  the  great  attemhn 
you  have  given,  I  need  not  remind  yoa,  tbel 
the  stress  of  the  proof  has  been  levelled  to  ahew 
Mary  Squires  was  elsewhere;  on  wUch 
Mr.  Davy  has  locrically  concluded,  (tf^) 
Canning  has  wilfully  sworn  false.  But  this  ■ 
not  a  necessary  consequence.  How  doea  it  a^ 
cessarily  follow,  that  though  Squires  was  ehip 
where.  Canning  has  maliciously  pegurcd  h«- 
self?  May  there  not  be  a  sunilitude  in  de- 
formity, that  may  deceive,  as  well  aa  thvt 
may  be  in  the  more  admired  part  of  the  eez  f 

But  having,  in  general,  denied  the  truth  if 
Mr.  Davy's  inference,  1  shall  waive  thb  pwtef 
my  defence  so  far  as  to  agree  with  Mr.  Davy , 
that  Squires  is  so  stampt,  that  it  is  scaroe  poen- 
ble  to  mistake  her.  Canning  has  sworn  she  ii 
not  mistaken  ;  twelve  men  uiion  their  oatha 
hare  beUeved  her ;  and  ber  defence  now  M^ 
that  she  is  not  mistaken.  It  will  be  as  need- 
less as  prolix,  te  go  minutely  through  evegf 
branch  of  the  prosecutor's  evidence,  that  m 
meant  to  prove  the  contrary.  The  witncatv 
are  many :  however,  all  their  force  is  direct  and 
obvious  to  a  single  point,  viz.  to  prove  Sqnini 
at  Abbotsbury  and  other  pUioes,  from  the  nOlh 

*  See  the  Case  of  the  Penys  in  this  Collet 
lion,  vol.  14,  p.  13  IS.  See  it  cited  in  BarbM^ 
Caee,Tol.l8»p.lS94. 


mj 


J6f  f^ilfid  and  Corrupt  Perjuri/. 


A,  0.  1754. 


[44S 


«r  DfOfUlbcr  ]75f,  lo  the  1st  of  February 
17^ ;  «l»*fi  we  sb&ll  entleaf  our  to  pro?e  she 
wti  II  Enfield. 

ll  i»  out  autte  imtniteritil  to  refnark,  that 
SutMn-  Flopkmif  anil  Alice  FaniltRm^  I  lie  liro 
int  wiine%«««,  art?  not  i^utie  |»08iu*e,  Out  be- 
brrt  cmly  tbey  ar«  the  person i, 
Voo  ^iW  olwcfife  from  heoce,  that  Abbots- 
li  to  Ife  the  grvnd  iceoe  of  contradiclion  : 
all  4he  wita}e»se«(,  M'heilier  uoiled  by  a 
aoitfsa  ofimiij^giing',  or  only  rKrcasionally 
arv  expftss  aud  poaitive  :  other  cireum- 
ft«  aareJy  not  at  together  cumtnon  id  the 
l«|f  i  g7pMy*s  life,  are  reserved  only  for 
at  AbbutMburv.  In  all  other 
;b  attempted  to  be  sbewD  proper- 
%  vmffraot, — foriune-tellinfr, — staying  a 
i  attly  *fi  a  pUcei  and  lodged  in  barns. 

ifceii  *»ooe  bfuui^bl  to  Ablmts^bury,  with' 
Aj  CAiiae  n|»ened  or  pro? ed^  ihey  are  at 
I  la  Ml,  not  a»  (fypsiea,  bul  become,  id  ao 
,  itoMrkable  i^uests  ;  live  in  the  new 
i  of  ike  liAuae,  inntead  of  lyini;  in  a  barn  ; 
1  albriDi^  Ifypsit'Sv  that  ev«ry  one  a%oidiy 
aio^  ■oeb  sa  wnut  lo  deal  in  fort  ime- id  ling- 
ni  anonVed  giviMls,  thev  are  now  comp«iniona 
d^kmmm  \h»  best  raok  in  ihe  place,  and  at 
Iw  haOa  in  onp  xiet^k.  Thia  so  ugly  and  de- 
hmtd  woftian,  whom  they  have  brouifht  a 
iImI  aubaisted  on  charity  at  Enfield,  to 
li€  ehoae  rather  to  sit  ia  the  cold, 
hj  ibe  ^te  v«tiere  «he  was  in  cotnpany  ;  I 
nj^tliia  ejitraordiuary  piece  of  dt^forniity  you 
m  ta  believe  at  Abbotsbury  present  at  ail  meet- 
I^Mmi  al  tbii  aeasoo,  and  caressed  as  a  prin- 
CipilfllML 

Oi»#  rtoMrk  will  saffice  for  all  thiii  particu- 
iMlyof  ilfscnption  at  Abboisbnry.  This  lime 
Via  mteMwokty  to  be  coDsucned  somewhere,  or 
Asa/*fririfr»i»'nce,  prior  in  jrt)iril  of  time,  would 
«A  il^h  \  arrival  at  Eo6eld,  in 

OBtfaili*  r.  which  they  are  aware 

»«  -  tHJure,      Vou  will   now  ob^rve, 

tb*  "en  tbouc[ht  necessary   to  have 

mmm  M*wi'Awi\  to  resort  to,  as  a  reason  for  all 
iMiptfiicoUraerieaor  evidence  and  recollec- 
tka,  rdative  to  all  these  three  fcypsiea.— ll 
llfipraa,  thai  moat  of  the  eiitkncebnve  chosen 
Ibalate  change  <ir«iiilp  as  their  com  moo  object 
«f  mentory.-  e,  who  did  not  reiitecD- 

Wihiao/  lb,    ,  H4r  fact,   bytheicta  of 

aH  or  nrw  Christmas. — 1    wish   this  may  be 
^aoly  aceor  of  falaabood  and  coufuskm  flow- 
ifrfHu  this  law.   I  wis  my^idf  a^^'aiost  it,  as  I 
It  it  hk*^l)  to  be  profluctive  of  mistakes  in 


ftt«riat 

It 


yet  see  any  use  it  erer  can 


t  natural  toconBrm 

I  persons  or  thini^s 
rcmarkttur    jnu.in     [H<int  of  time.      But  I 
iloabt.  whether  ihis  ts  nut  the  occasion  nf 
wbftle  fnislakr  J-  *^       ^^e;    not,  |>erhapc, 
Ifjall.   <  others  calculatetl 

Ij  lo  aikl  A  CRi.ri  i  >  ;«^Li.,  that  a  mere  po- 
waml  woold  fail  to  tsstablish . 
tlif^  mr^gfiem  of  the  secootl  %^  ttness, 
»  %\  Wmy^xA'u  Cap,  (wbicb  was 


pven  with  great  modest}^,  and  ao  air  of  Irath) 
there  is  a  particular,  which  induces  me  to  be. 
lieve,  that  the  year  must  be  mistaken  by  this 
witness.  In  order  to  convince  you  that  sb« 
was  not  mistskeo  in  the  persons  of  the  gypsief^ 
— she  recollects  they  told  her  they  would  coixi^ 
and  see  her  again  at  old  Christmaa, 

It  was  then  the  51st  of  riecember.«-Thei9 
gypsies,  as  you  have  heard  from  all  their  own 
accounts,  on  their  return  hither  to  winter 
quarters;  Abbotsbury,  a  remarkable  point  in 
view ;  and  yet  all  this  must  be  defeated,  if  tbey 
had  then  the  least  intent  of  being  at  Winyard^ 
Gap  again  at  old  Cliristmas  ;  but  this  is  ^ety 
reconcilable,  supposing  it  the  year  before,  that 
these  wanderers  were  in  those  parts. — And  ihii 
is  no  unnatural  auppositjon;  for  the  change  of 
stile  was  then  enacted  into  a  law^  tHough  it  hsd 
not  taken  place  \  and  therefore  the  first  old 
Christmas  was  no  uncommon  day  of  return  for 
these  g-y  psies,  as  dissentera  Aiom  the  New  Stile, 
to  fix  on.  But  surely,  gentlemen,  if  this  ex- 
tensive scene  oi'  alibi  proof  ought  to  find  credit 
with  yoUf  it  is  evident  George  and  Lucy  8quire« 
were  the  most  proper  evidence  to  support  the 
truth  of  it. 

'1^0  this  I  desired  to  appeal,  as  being  thcbnl 
evidence,  when  I  observed  those  two  in  court. 
after  all  other  witnesses  were,  by  order,  obliged 
to  withdraw. — The  prosecutors  counsel  saw 
the  force  of  ibis  appeal,  and  agreed  to  call  theae 
two  witDCBses  in  succession. — George  was  call- 
ed.— If  Lttcy  had  been  veotured,  and  they  two 
had  agreed  m  points  of  facts,  uf  persons,  and 
times,  as  they  must  have  done,  if  true  in  the 
accounts  tbey  gave^I  say,  if  this  bad  been 
done,  I  then  agreed,  snd  I  §lill  say,  that  f  musi 
have  submitted,  thiit  the  defendant  waa  at  leaat 
mistaken  in  her  evidence  against  Mary  Squires. 

But,  gentlemen,  you  have  heard  George 
alone.  From  his  cross- exam itiati on « the  dan* 
ger  of  a  manifest  contradiction  became  too  ap- 
parent. George  hardly  supi>oried  himaelf.— 
If  Lucy  was  called,  and  faulteied,  the  whole 
alibi  was  gone. — Such  a  trial  was  therefore 
not  to  be  ventured.  I  re-demanded  tins  teat  of 
Ihe  truth  of  the  aiihi ;  but  the  prosecutor  ab* 
aolutely  refused  it. — A  reason  indeed  was  as- 
signed; but,  like  many  others,  the  e^ect  of  a 
quick  invention^  unsup|M>rted  by  proof.  Botll 
theae  witnesses  were,  at  once,  made  almott 
ideota.  Nothing  ot  this  waa  mentioned  iu  the 
opening,  or  as  ao  excuse  for  not  calling  them, 
when  at  first  demanded. 

But  as  Lucy  was  not  called,  (which  I  really 
think  would  have  determined  this  whole  alTair) 
lei  me  remark  a  litlle  on  the  conduct  of  George. 
And,  gentlemen,  where  did  there  appear  any 
defect  of  understanding,  during  his  examina- 
tion on  behalf  of  the  prosecution  ?  He  was 
clear,  quick,  and  minute,  both  as  to  Umes, 
names,  and  places,  that  were  within  the  route 
to  ht^  pt'oveu.  Of  other  places,  certainly  aa 
remarkabk',  certainly  as  natural  objects  of 
memory,  not  a  tittle  waa  to  he  remembered  ; 
ibr  to  have  remembered  any  tbiogi  woubl  har^t 
given  a  clqe. 


443] 


27  GEORGE  11. 


Trial  ofEUzabeth  Cannings 


[444 


And,  therefore,  not  ft  town  ont  of  the  aHhi, 
except  Shaftsbnry,  through  a  tour  from  August 
to  December,  from  Sorry  quite  along  the  coast 
of  Sussex  and  Dorset,  is  to  be  mentioned. 
Not  a  transaction  of  buying  or  selling  a  single 
•erap  of  his  goods,  in  any  one  place  out  of 
the  alibi ;  and  yet  it  ia  impossible  but  their  trade 
raiist  have  been  their  view  aind  support,  in  one 

rtt  of  their  joamey  as  well  as  another.  But 
submit,  that  some  parts  of  the  stor^,  in 
which  the  prosecutor  has  allowed  this  witness 
to  be  capable  of  giring  his  testimony,  afford 
strong  suspicions  of  falsehood.  I  will  enume- 
rate some  of  them,  that  strike  me  in  this  light : 
First,  that  decrepid  old  woman's  walk  mm 
Litton  to  Abbotshury,  and  back  again  to  dinner, 
and  then  to  Abbotobury  the  same  evening, 
seems  highly  improbable.  Yon  are  told  by 
other  witnesses,  that  such  a  walk  would  neces- 
•arily  take  up  more  time,  than  other  circum- 
atances  of  Georsre's  story  can  possibly  allow 
for  it. — Add  to  this,  the  improbability  of  her 
being  at  Abbotshury,  and  that  too  at  Clarke's 
house,  and  yet  not  seen  there  by  one  of  all  her 
Bnmerons  acquaintance.  You  obserre  scarce 
a  person  there,  but  has  known  her  intimately 
for  many  years.  Here,  you  have  heard  from 
many  ot  the  witnesses,  there  was  an  halt  of 
eight  or  nine  days.— George  then  tells  you, 
that  the  first  day  they  went  only  to  Portersham, 
a  Tery  small  distance  ;  and  from  this  place  such 
forced  marches,  as  amount  to  the  highest  de- 
^^ree  of  improbability.  I  asked  him  a  reason 
for  thb  immediate  and  unusual  expedition. — 
This  waa  one  of  the  questions,  which  you  find 
he  did  not  expect  to  be  asked.  At  last,  it  was  a 
8ister*s  illness  occasioned  this  hurry — We  re- 
ceived ft  letter  from  her  by  the  post  on  that  ac- 
count. He  could  not,  however,  tell  where 
this  letter  was  received,  and,  perhaps,  that 
night  be  forgot :  but,  gentlemen,  he  could 
acarce  receive  this  letter  at  Portersham,  be- 
cause that  was  a  mere  occasional  resting-  place ; 
and  if  a  letter,  that  really  required  and  occa- 
sioned such  expedition,  was  received  at  Ab- 
botshury, 1  desire  to  have  it  accounted  for,  how 
they  came  to  attempt  no  further  than  Porter- 
sham  the  first  day.  It  is  obvious  therefore  to 
me,  that  the  particular  stai^es  this  witness  gives 
an  account  of,  were  not  in  pursuance  of  this 
letter ;  but  in  order  to  be  at  Basingstoke  on  the 
181  h  uf  January,  for  a  purpose  that  is  very 
material  for  the  truth  of  their  whole  story,  and 
which  I  shall  take  particular  notice  of,  when 
I  atten'l  them  at  that  place. 

But  first  let  me  ask,  if  such  a  letter  ever 
sent, — if  a  sister  ever  sick, — Why  not  that 
sister  here,  to  confirm  the  truth,  of  this  plain 
and  simple  fact?  Is  she  too  of  so  weak  an 
understanding,  as  not  to  be  trnsted  with  this 
question?  Did  you  write  a  letter  to  your 
brother  George  in  January  1755,  and  to  what 
place?  Was  you  then  ill,  and  did  you  inform 
him  so  by  such  letter?  An  answer  m  the  affirm 
mative  to  either  of  these  questions,  from  a  wit- 
ness whose  character  siamis,  and  roust  stand, 
unimpeacbed  by  any  thing  which  now  appeaia, 


wouM  hare  had  great  weight,  with  me  at 
least,  in  confirming  this  part  of  George's  evi- 
dence. 

There  is  another  most  remarkable  defect  in 
George's  account  of  this  journey.— From 
Goombe  to  Basingstoke  is  forty  miles:— ha 
wanted,  at  first,  to  make  this  march  hi  twa 
days ;  but  he  was  put  right  in  his  road  here  by 
the  learned  gentleman's  rota  on  bis  brief,  m 
else  they  would  have  been  too  early  at  Basii^ 
stoke  for  this  material  letter : — but,  in  this  three 
days  march  of  forty  miles, — not  a  single  pboi 
known  ; — no  witness  called  that  erar  mw 
them ;— and  yet  they  eat,  drank,  and  lodged^ 
as  in  other  parts  of  their  journey .  And  yet,  ti 
put  the  truth  of  this  narration  beyond  An 
reach  of  a  doubt,  this  witness  has  repeaUd  Mi 
whole  journey,  accompanied  by  an  attswtfj 
not  only  to  refresh  his  own  memory,  but  Isgifa 
his  testimony  a  prop  and  support,  which  bs 
was  no  doubt  prudently  advised  it  might  Mai 
in  need  of. 

It  is,  snrely,  somewhat  strange,  that  tha 
nearer  he  arrived  to  his  own  honse,  the  lev  ha 
should  be  capable  of  remembering  tfaiiMS  and 
places  himself,— the  less  he  should  ha  abla  la 
produce  persons  to  remember  him,  his  ■ 
or  bis  sister.  But,  gentlemen,  this  is  a  | 
objection  to  his  testimony,  both  T 
Coombe  and  Basingstoke,  and  from 
stoke  to  Brentford, 
cumstance 
which, 

yond  a  doubt,  that'they  were  really  at  ] 
stoke  on  the  18th  of  January. 

This  is  the  letter,  supposed  to  be  wrote^  Ij 
the  direction  of  Lucy,  by  tha  landlady  alfi^ 
singstoke,  to  her  lover  Mr.  Clarke,  whom,  JM 
have  been  told,  she  danred  with  at  Abholsbiiiy. 
You  have  also  been  told,  that  tliis  pledge  sf 
Lucy's  love  was  unfortunately  delivered  Is  a 
wrong  Mr.  Clarke,  by  some  mistake  of  the 
Dorchester  post  house.  Now,  gentlemen,  yea 
will  observe,  all  that  makeb  this  letter,  in  any 
degree,  a  material  piece  of  evidence  for  tha 
prosecutor,  is  the  time  it  was  wrote:  fbr  thrt 
these  vsgabonds  may  have  been  in  all  the  plaos 
through  which  the  evidence  has  traced  them— 
that  they  might  dance  at  Abbotshury,  and  that 
Lucy,  whose  beauty  Mr.  Davy  himself  seem 
to  have  been  so  enamoured  with,  might  iheia 
also  captivate  the  heart  of  Mr.  Clarke— is  very 
probable,  but  intirely  immaterial.  It  was  theic- 
i'ore  incumbent  on  the  gentlemen  for  the  pra* 
secution  to  have  fixed  the  time  at  which  thb 
letter  was  wrote,  without  the  least  blot  of  any 
suspicion  ;  and  not  only  the  time,  but  that  tba 
gypsies  actually  came  on  this  suppos^  18th  of 
January  to  Basingstoke,  directly  from  Abboti- 
bury  ;  for  otherwise,  their  being  at  EnfieM- 
Wash  on  the  Ist,  2d,  or  3d  of  January,  and  at 
Basingstoke  on  the  18th,  are  not  in  ihb  laalk 
inconsistent :  and  therefore,  gentlemen,  I  be- 
fore took  notice,  that  a  most  material  part  df 
this  journey  was  very  imperfectly  aecnuiitfti 
fbr  by  George  Squires,  and  not  any  witn^a  la 
him  quite  mm  Cootnbe  to  Baftlngatalifci 


to  Brentford..  But  at  Basingstoke  a  ev- 
Iftnce  is  pretended  to  have  happened.  dM 
b,  if  it  really  did  happen,  makes  it  h^ 
a  doubt,  that  they  were  really  at  Bana^ 


Jiff  tViifiii  and  Corrupt  Perjury. 


A.  D.  175*. 


[449. 


1  therefore  vrould  il  have  bren,  in 
[•ftbdr  cuc.%  to  have  had  thiji  wrong 
kt«  to  whom  ibis  lo? e-epistte  wus  sent 
^f  WcthuiiUl  then,  at  leu^st,  have 
,  thai  It  was  uot  of  au  e&rlitr  date  than 
mI,  when  I  come  to  observe oo  the  Id- 
as producifcl  to  ihe  Courts  1  think 
^ictoiiSt  on  this  bead,  w'tW  uot  appi^ar 
dife^.  Mr,  Davy  witb  (^reat  con* 
led,  thai  this  |iiece  of"  evidence 
jetifficrrnt  to  tletect  the  whole  iui* 
I  htive  allowed  tiow  strong  it  wouUI 
aiietl  Hiib  HOine  requisites,  I  bat,  I 
i  not  now  accuiiipan^  it.  An  esf^eo> 
ihat  the  letter  should^  beyond  a 
'  to  you  to  be  wrote  on  the  I8tb 
fS3,  Mr  Uary  and  Mr.  Willea 
on  all  occasions,  mentioned 
_  letter,  as  a  fact  uot  disputable^ 
to  he  disputed.  But,  gentlemen, 
must  from  the  appearance  of  the 
»al  least  think  ibis  uncertain  ;  for, 
iim  the  date  has  been  repealed  1753, 
litt  no  other  ti^rnres  tlian  175;  the 
whciv  the  fourth  tigure  should  gtaod, 
V  «f  miibed  of}'.  That  corner  alone,  geo- 
I  OOt  of  four,  though  all  equally  secured 
'"  ]  noake  of  the  letter,  baa  suffered 
tn  an  obliteration,  or  other  acci- 
k  50  nmrerittl  a  part  of  mo  very 
>  of  eridence,  it  natut  ally  ex< 
picion.  And  here,  again,  how 
it  have  been  to  have  bad  the 
>rke,  who  could  not,  I  ana  sure, 
«o  unexpected  a  letter  without 
_  of  attention  f  And  from  him  we 
I  pottihly  ha?e  known  bow  tiie  date  ap- 
d,  wben  delivered  to  him. 
it  also  unlucky  for  this  Tiiatertal  point  of 
,  that  the  post-mark  is  by  no  means 
pgh  to  give  any  satisfactory  account 
when  this  leller  actually  passed 
si,  Tbi>i,  1  own,  is  a  defect  not 
or*t  power  to  have  cured  ;  but 
[  the  more  incumbent  on  him  to 
edited  iliG  time  and  dale  of  the 
uu>;«ns  as  were  in  bis  power; 
,f  je  absence  of  Mr.  Clarke 

^•iihority  of  ibis  piece  of 
t  have  before  aaid,  on  tite 
I  of  lime  depends  the  whole 
^lihi  evidence,  t  doubt  1  have 
'  proUx  on  this  part  of  the  case  : 
irooduct  of  the  prosecutioti  seemed 
|lhts  so  very  material,  1  hope  1  have 
'  to  ire»piii6  too  much  oo  ibat  in* 
which  baa  been  bo  remarkable 
flhif  whole  cause.  I  tfhall  ttierelbre 
obMnraltooi  on  the  other  nuineroiis 
to  this  alibi  part  of  the  case,  that 
vcr  thty  majf  agret  m  general  facL<j,  thai 
m  WW  M  Uaia  and  thai  place,  a^  sworn, 
tecomt  nfty  cilhvr  b*  falte  or  iuinaterijkl 
I  poMCiiliip  I  may  b<>.  as  other  aiibi  de- 
I  loft  olWfi  are«  a)  dae,  or  false 

fU«f  time;  tad  tn  ^  well  ts  the 

^  ci^ljr  kf  Alidftlo  the  whok  of  tliiSf  as 


relative  to,  or  material  in,  a  proof  of  Cunnttig^v 
guilt. 

It  is  therefore  one  of  the  corner-stones  to  thi^] 
credit  of  this  sort  of  proofs,   ihat  the  several  J 
witnesses  isboukl  be  uniform  in  all  ibetr  circum*  1 
stances,  and  parlicutarlv  in  such,  which  tbej||J 
themselves  lui^ht  not  think  a  necessary  or  ea^  1 
SKUtial  part  of  the  case  which  they  are  broughit] 
to  prove.     But,  gouitemeo,  you  may  reukem-.  T 
ber,   tliat    in  such  circumstances  there  i^er^l 
mimy  contradictory  accounts:    one   in  parti-vj 
cular  was  most  material,  either  in  esiablishi] 
ing  or  overthrowing  (ieorge  bqu treses  accoun%1 
of  his  muther^  famous  walk  to  Abhotaburjr.j 
and    back   again.    To  give   this   a   seeming 
probability,  all  the  subsequent  witnesses  wcrf 
to  bring  them  into  Abbuisbury  very  late  ii|, 
the  evening;  and  yet  John  Ford,  one  of  ihul 
gang's  most  intimate  and  old  acquaintance, J 
swore  positively,  that  he  kissed  Lucy  befortil 
three  o^clock  in  the  adernoon  at  Abbotsbury. 
Mr.  Davy  was  aware,  that  so  signal  a  token  of 
remenabrance   would   weigh  strongly  againsfi^ 
some  of  the  former  evidence;  and   iberefor^J 
this  witness  is  directly  called  drunk.     There  l%\ 
another  of  this  sort  very  material :  Hawkins  ^% 
litlon^  though  in  and  about   his  house   lbi| 
whole  morning,  remembers  not  a  tittle  of  thif^ 
morning's  walk  by  the  old  woman  to  Abbois« 
bury. 

llaf  ing  gone  through  this  range  of  the  [ 
secutor*s  evidence,  and  troubled  you  with  such 
observations  as  occurred  to  me  oo  those  part4 
which  they  seemed  io  lay  their  greatest  stresAfl 
on ;  I  am  now  in  coune  brought  nearer  home«,i 
and  am  to  see  how  far  anotlier  class  of  wii».i 
nesses  have  produced  any  substantial  charge 
against  ibe defendant.     And  I  hojie,  gentlemeiii 
I  shall  ]»ave  occasion  to  be  much  less  prolix  on 
ibiK  part;    because  the  eviilence,  in  its  own 
nature,  is  much  weaker ;  and  whatever  wi  _ 
it  may  carry,  allowing  every  tittle  of  it  lo'l 
true,  there  are  scarce  any  three  person<$  to  I 
found,  who  will  agree  in  drawing  the  same  in* 
ferences  from   the  facts  related   by  the  set 
witnesses   1  am  now  come  to  ;   tliat  is,  get^fJ 
tiemen,    those    witnesses,    who    have    given  [ 
you  an  account  of   the  several    occurrencea^l 
before  alderman  Chitty,  and  at  the  iimeCau^T 
ning  was  down  at  Enfieid,  and  at  other  times.^ 
when  she  has,  cither  in  ordinary  discourse,  o 
in  obedience  to  the  civil  magistrate,  made  be 
coufinerocnt  and  dehrery  the  subject  of  aojl 
description.     I  will  not  go  through  the  several^l 
parii^  of  these  irmosactions,  whicii  the  gentle**' 
men  for  the  prosecutiou  Ii  '  > 

paint  BO  contrndictory  to  i: 

necessarily  stamp  the  whuie  lui   n  iMjiktm  mid 
forgery.     Vou,  geutlemen,  have  had  these  dif 
ferent  accounts,  both  the  writteti  and  relaied^ 
Isid    before  you.       Your    understanding   ind 
judgment  is  too  sound  fur  me  to  itiiagine  uiy« 
aeli  copable  of  reconciling  you  to  the  truth 
any  contradictinns  by  any  observations, 
therefore  becomes  me  only  to  state  tlu9  brancl%] 
of  the  evidence*  if  il  contamsany  contradictionftj 
in  facts  material,  1  c«nnoi  leiaen  the  I'orce 


447] 


S7  GEORGE  IL 


bat  if  joQ  SM  what  is  trtfully  lemed 
by  the  proteeulor  oootradictory  accounts,  in 
toe  liflht  I  do  in  tbis  brancb  of  tbc  erideDoe, 
I  really  and  aerioosly  inagioe,  tbat  we  bave 
been  waatin^  yoar  time,  iNitb  on  ibe  one  stile 
and  tbe  otber.  For  wbat  does  it  all  amoont  to 
more  thao  tbis,  tbat  a  (general  fact,  compoonded 
«f  a  variety  of  tfabgs  done  and  said,  when 
related  on  partiealar  oecasions,  and  at  different 
times,  baa  not  always  been  minotdy  and  ex- 
actly rsbUed  the  same  way  ?  And  therefore, 
Ikom  this  sort  of  defect  alone,  which  I  believe 
BO  varioos  relatioas  of  a  Um^  tfUnrj  were  erer 
free  from,  can  any  weight  seem  proper  to  be 
laid  on  this  part  of  the  prosecutor's  case? 
And  yet,  so  far  has  this  been  pushed,  tbat  you 
have  had  a  contradiction  endeavoured  to  be 
made  appear,  to  you,  even  from  the  igoralive 
coepreasion  of  the  unhappy  mother,  ui  describ- 
inff  her  dauffhter's  wretcuedoeas  on  ber  return. 
The  midwife  telling  you,  Mrs.  Canning  said  to 
ber,  B  ere  is  my  poor  daughter  returned  as 
naked  as  she  was  bom ;  W  hat !  says  Mr.  Davy, 
did  she  say,  ss  naked  as  she  was  bom  ?  The 
energy*  gentlemen,  of  the  question,  was  to  re- 
mind you  that  all  Canning's  accounts  men- 
iSoned  a  handkerchief  on  h^  head,  and  a  bed- 
gown on  her  shoulders.  One  can  really  be 
scarce  serious  in  observing  on  attempts  of  thb 
khid ;  and  yet,  gentlemen,  much  of  your  time 
has  been  taken  up  with  arguments  on  such 
seeming  contradictions.  ParcMo  me  in  digress- 
ing in  tnis  phH»  to  one  more  remark,  that  argu- 
ments drawn  from  such  seeming  contradictions 
bave  been  the  only  materials  which  tbe  printed 
trash  of  quacks.  Inspectors,  and  justices,  have 
Supplied  on  either  side  of  this  question ;  aiid 
yet,  ypentlemen,  from  this  modem  practice  of 
acquitting  or  condemning  in  pamphlets,  with- 
out judf^e  or  jurjr,  it  is  easily  foreseen,  that 
not  a  trial  of  an^  importance  will  soon  be  laid 
before  a  jury  in  tbat  unprejudiced  manner, 
which  the  cautious  jealousy  of  the  excellent 
laws  of  this  country  requires. 

But  to  return,  and  to  give  one  proof,  how 
far  these  contradictions  really  did  carry  along 
with  them  any  conviction  of  Canning's  im- 
posture ;  let  us  see  whether  those,  who  now 
make  inferences  of  Canning's  guilt  from  such 
circumstances,  have  acted  the  part,  that  men, 
supposed  thus  convinced,  would  or  could  have 
done. 

For,  gentlemen,  you  will  observe,  that  Mr. 
Nash,  Hague,  and  Aldridge,  would  now  have 
you  believe,  that  from  the  1st  of  Febniary,  the 
time  they  attended  Canning  at  Enfield,  they 
were  all  satisfied  that  Canning  was  at  least 
mistaken.  I  will  not  ask,  whether  the  con- 
tradictions before  alderman  Chitty,  or  else- 
where, were  the  ground  of  their  conviction 
in  tbis  particular.  Satisfied  they  were,  that 
Canning  was  mistsken  ;  and  yet,  gentlemen, 
they  were  all  at  the  trial  of  Sauiras.  These 
men,  hitherto  of  unimpeached  characters,  saw 
one  life  in  great  jeopardy  for  fekmy ;  ano- 
ther person  t^ing  as  accessary  to  tbat  felony ; 
wd  ysl  offered  bo  tf idaoiot  ui  coBtndidion  to 


Tritti  ofEtMeik  (kmmigf 

tbat  proof,  whicfa  tbey  then  believed  la 
and  saw  was  likely  to  be  so  fatal. 

The  reasons  for  not  doing  this  act « 
nry  justice  you  have  heard.  One 
convinced  gentlemen  was,  if  I  reoiet 
attend  a  city  feaat.  The  other  was  ao 
with  the  peijory,  that  he  could  maki 
tempts  to  prevent  tbe  fatal  eficcto  of 
there  is  something  still  more  particol 
conduct  of  Mr.  Nath:  I  produced  a 
him,  dat«sd  the  10th  of  February,  m 
acknowledged  to  be  his ;  and  you  will 
this  is  almost  a  fortnight,  after  be  telto ; 
he  was  convinced  that  Squires  and  Ytt 
not  justly  accuaed. 

And  yet,  gentleoien,  what  is  the  pi 
thb  letter?  It  is  wrote  to  one  Mr. 
known  and  xealons  friend  of  the  dc 
audit  is  to  inform  Mr.  Lyon,  that  con 
contributions  might  be  raised  about 
Wash  for  the  poor  unhappy  giri,  and 
wishes  them  good  luck,  ficmd  luck! 
men,  in  what?  Will  you  believe  M 
wished  them  good  luck  in  a  cootribi 
the  meana  of  which  he  must  know  th 
cence  waa  designed  to  be  arraigned  ? 
accusation,  he  then  believed  false,  w 
supported  by  peijury  ?  Or,  are  we  m> 
lieve,  that  Mr.  Nash,  thus  convinced, « 
enough  to  think  Canning  that  poor,  i 
giri,  aa  to  be  a  worthy  object  of  his 
meodation  to  charity  ?  Let  the  former 
of  these  three  gentlemen  explain  and 
for  themselves,  if  it  can :  Imt  yet  see 
thev  have  been  positive  in  facts,  where 
nothing  to  do  either  with  their  observs 
opinions,  and  which,  from  henceforth, 
no  roan  can  place  any  reliance  on.  Tfa 
all  positively  swore,  tbat  Canning  a 
fixed  to  her  first  charge  on  Squires ; 
the  warrant  was  taken  out  against 
Wells ;  though  all  her  friends,  and  tbe 
ficer,  ex|>ected,  nay,  pointed  out  Well: 
criminal ;  though  Wells  was  continual 
ing  her  face  close  up  to  Canning's,  ai 
rogating  her,  Is  it  ifie?  Is  it  me,  i 
though  the  more  artful  gypsey,  who  h 
deaf  nor  blind  as  yet,  during  tbis  tra 
kept  her  face  much  concealed,  till  p 
charged  by  Canning.  Then,  indeed, 
the  mask  of  her  deformity  is  produc 
made  a  defence,  which,  to  a  person  c 
of  no  guilt,  would  have  appeared  i 
more  natural  protection,  by  being  nei 
cealed  at  all. 

While  we  are  still  on  this  scene  at 
Wash,  if  you  are  to  suppose  Canning 
all  a  fiction,  nothing  but  a  design  to  ca 
cheat ;  why  should  Canning  determine 
gypsey  f  The  name  of  the  gypsey  I 
echoed  through  all  parts  of  Uie  hoow 
cannot  suppose  Canning  ignorant  of 
these  people  lead  ;  neirer  fixed  long  in 
Motlier  Wells  then  at  her  usual  plaoe  « 
•—of  an  infamous  character,— facta  boti 
to  be  known  to  Canning :  and  yet  Can 
the  foimdation  of  her  cheatp  Mccnia 


US] 


Jbr  fVUfuI  and  Corrupt  Perjury. 


A.  D.  1754- 


[450 


fMl»  wUcfa,  if  tbe  knew  to  be  false,  she  must 
k  msnlly  tore  woiilit  depend  on  her  f rideoce 
iIsM,  and  that  too  (frunn  her  own  account)  liable 
to  he  contradicted  by  the  testimony  of  Virtue 
Hall ;  for.  Id  all  her  accounts,  she  is  uniform, 
Ihat  Virtue  Hall  was  there  when  she  was 
IraaghtiD :  and  if  all  this  was  a  known  foi^ry 
to  Ciuiniii^,  oiMild  she  have  left  such  a  witness's 
tluneter  noim peached  by  her  accusation  ? 
For  canld  ahe  then,  iroaijfine,  that  instead  of 
Ball's appeariagr  iO  confute  her,  she  woukl  ap- 
par  lo  fwofinii  the  truth  of  her  whole  tea- 
liaaay  ? 

H  mferencea  drawn  from  facts  are  in  this 
a^nry  to  have  their  weight  in  opposition  to 
Im  lumaelres^  1  only  deaire  this  part  of  the 
tanMlioii  may  lie  remembered,  when  you 
tohe  the  (sonsideration  of  this  case,  under  the 
InA  «f  pnobable  or  improbable. 

fcWMiB,  1  have  hitherto  confined  myself 
li  alMntliona  and  answers  to  such  facts  as 
tepnatcutor  himself  has  made  a  part  of  hia 
«■:  Aai  as  the  facts  we  have  to  lay  before 
yaa  wM  mC  require  the  illustration  of  refined 
mgammm  and  observations,  I  hope  not  to 
^mftm  moch  more  on  your  patience.  I 
a»  aairy  nay  duty  has  oblif^  me  to  hare  done 
iaa  Im^  already.    But  before  1  g^re  you  the 

el  itate  of  our  own  ertdeace,  which  is  all 
attempt  to  do  In  this  part  of  our  defence 
fcrtka  prisoner,  let  me  only  remark  to  you  the 
Miaaiaa  of  a  piece  of  evidence,  so  material  m 
AaeaaAmiation  of  Cannings  guilt,  that  1  am 
■Rtbe  prosecutor's  counsel  could  not  have 
wined  it,  bad  they  really  thouglit  the  story  as 
fthBi  aa  they  have,  by  other  sort  of  evidence, 
■fcaiauiid  to  make  it;   that  is,  gentlemen, 
Mraol  bavinff  called  Virtue  llall  here  to  sup- 
part  the  truth  of  b<*r  recanUtion.    That  (hey 
ImM  have  bad  her  is  certain  ;  that  she  might 
IPratmimoay,  extremely  material,  on  one  side 
Vibe  other,  cannot  be  cfenied  ;  that  her  word, 
m  bar  oaib   (1  know   not  which  has    been 
I  oaj  baa  been  deemed  void  ef  all  credit, 
'  1  am  sure,  be  asserted  ;  because  I  am 
if  that  it  roust  have  been  u^ed  as  one 
M,  at  least,  for  the  application  for  that 
■Rcy  which  has  been  shewn  to  Mary  Squires. 


iia  of  Caaotoff's  story  ;  and  therefore,  ffentle- 
■n,  wby  is  she  aot  now  brought  here  by  the 
ptaweulur  to  give  a  sanction  to  the  truth  of 
te  recantation  on  oath  ?  What,  gentlemen, 
am  tha  absence  of  this  witness  be  imputed  to, 
kM  that  they  were  afraid  (I  do  not  mean  the 
ciaaael  were  afraid,  but  tiie  prndent  manage- 
ttcmoT  their  cause  was  justly  afraid)  of  :m- 
•ther  solefiin  and  public  examination  of  this 
wtewsa.  1  ihink  this  oliservation  a  just  one,  or 
I  would  DOC  have  made  it.  The  gentlemen 
Itoforatber  choae  that  1  should  make  it,  than 
rail  another  relapse  fntm  Virtue  Halt.  Dnt, 
l^rbapa,  whatever  may  be  }'Our  verdict,  her 
nation  will  atiil  aerva  for  casei  and  news- 


VOL.  XIX. 


Mr.  'Recorder.  If  she  had  been  here,  she 
has  already  discredited  herself,  and  cannot  be  a 
witness. 

Mr.  Morton  continues.  With  submission, 
Sir,  I  must  insist  on  the  propriety  of  my  for- 
mer observation.  Virtue  Hall,  by  the  known 
practice  and  roles  of  evidence,  is  a  legal  and 
competent  witness.  Courts  of  justice  can  take 
no  notice  of  private  recantations,  or  of  disco- 
veries supposed  to  bt'  made  to  magistrates  in 
private,  so  far  as  to  repel  the  testimony  of  a 
witness  :  f  therefore  rely  on  the  propriety  of 
my  observation. 

And  now,  gentlemen,  1  have  gone  through 
the  case,  the  evidence,  and  the  conduct  of  the 
prosecutor.     I  shall  have  occasion  to  be  but 
very  short  in  stating  our  answer  to  each  of 
them  ;   because,  as  I  before  said,  I  shall  trust 
the  merits  of  the  defence  to  absolute  facts',  not 
to  refined  obsenafious  on  them.    Many  of  the 
facts,  proper  on  our  part,  have  been  proved  by 
the  prosecutor's  own  evidence ;  such  as  the  ab- 
sence of  Canning,  her  return,  her  account  of 
herself,    her   real    condition,    her  charge   of 
Squires  at  Enfield- Wash,  and  many  more  cir- 
cumstances which  1  have  already  oliserved  otf 
to  yon.    I  wish  a  repetition  of  ttie  same  facta 
could  be  wholly  excluded  from  our  evidence, 
merely  for  the  sake  of  time ;    but  1  foresee 
that  is  impracticable.     But,  {gentlemen,  these 
facts  being  already  proved,  the  remainder  of 
our  proof  is  pointed  to  the  absolute  overthrow 
of  the  truth  of  the  prosecutor's  alibi  of  Mary 
Squires,  at  the  time  of  Canning's  robbery  and 
confinement.     In  order  to  do  this,  we  shall  call 
you  many  witnesses,  who  have  lived  in  and 
about    Enfield-Wash,   from   fifteen   to  thirty 
years,  people  of  known  and  established  credit. 
The  prosecutor  has  had  a  list  of  these  wit- 
nesses now  many  days,  and  in  that  respect  the 
necessary  adjournments  of  this  trial  have  given 
him  an  advantage  and  opportunity  of  imjieaching 
the  credit  of  all  our  witnesses,  if  their  charac- 
ters cannot  stand  the  test  of  inquiry  :  1  say,  by 
a  number  of  witnesses,  unconnected  in  any  re- 
spect with  the  party,  in  whose  behalf  they  now 
appear,  we  shall  shew  vou  that  this  never-to-ba 
forgotten  image  of  Mary  Squires  was  seen  at 
Enfield  on  several  of  the  days,  which  the  wit- 
nesses for  tbe  prosecutor  fix  her  to  be  in  the 
different  parts  of  her  jounipy  in  the  west.     Wa 
shall  not,  indeed,  ha\c  so  exact  a  diary  of  the 
various  motions  of  these  vagrants,  ([  niightsay 
felons,  for  so  they  are  by  law)  or  of  their  va- 
rious  entertainments,  tficir   companions    anil 
amusements.     Wliether'thc  want  of  surh  parti- 
cular exuctness  in  the  relation  of  facts  in  them- 
selves, at  the  lime  performed,  entirely  indilfer- 
cnt,  ^ill  diciini^li  the  cieilit  of  our  account  or 
not,  I   shall   leave  to   your  own  observation. 
I  They  all,  as  J  have  hefure  said,  stand  free  and 
clear  of  all  inipiitatinn  as  to  credit ;  and  they 
I  have.  jilmo':t  all  oi'  them,  some  natural  as  well 
I  as  partiriilar  account  to  assi'^n  for  their  remem- 
brance ul  the  tiuH*  of  the  abode  of  these  re- 
markable strollers  nt  the  Wash. 
Some  will  tail  you  of  their  dealing  with 
3G 


451]  27  GEORGE  II. 

them  in  one  way,  some  in  another.  It  would 
be  inexcusable  to  be  particular  on  this  head. 
There  are  those  who  took  money  of  them ; 
and  from  a  vulgar  belief  of  some  superior 
power  in  these  people  called  gypsies,  thought 
It  necessary  to  purify  the  money  ao  taken,  lest 
it  might  be  conjured  from  them  by  this  letU 
handiMl  kind  of  divinity.  There  are  others  who 
will  tell  you,  that  they  have  parted  with  their 
money  to  this  very  womau  in  her  trade  of  for- 
tune telling, — have  beeu  face  to  face  with  this 
remarkable  impression  of  deformity.  And 
therefore  so  far  the  alibi  proved  by  the  prosecu- 
cutors  haa  an  express  contradiction  in  proof. 
There  are  other  ingredients  in  our  evidence, 
which  afford  a  light  to  tliose  parts  of  Canning's 
own  narration,  which  gives  vou  both  her 
journey  to,  and  return  from  the  Wash.  I  onlv 
mentiiui  all  these,  in  geueral,  because  I  shall 
relv  on  tliem,  when  we  go  into  our  proof. 
Whatever  other  observaliilbs  either  the  prose- 
cutor's case  and  proof,  or  our  own  afforda,  (and 
many  they  roust  be  which  I'  have  omitted)  I 
am  satisfied  the  care  and  diligence  of  the  gen- 
tlemen, who  are  on  the  same  aide  with  me,  will 
amply  supply. — Tired  therefore,  as  I  am,  in 
having  attempted  to  go  through  so  very  long  a 
case,— tired,  as  I  am  sure  you,  sentlemen, 
must  be,  by  that  most  laudable  and  impartial 
attention,  which  vou  have  ahewn  through  this 
whole  inquiry, — 1  shall  only  beg  that  attention 
to  a  very  few  general  observations.  The 
weight  and  credit  of  evidence  ia  your  province. 
The  weight  and  credit  of  arguments  and  ob- 
servations, in  opposition  to  facts  expressly 
sworn,  you  will  know  how  to  estimate. — If,  on 
the  whole,  only  a  just  and  rational  doubt  should 
remain  on  your  judgments,  the  policy,  the 
lenity,  the  justice  of  our  laws,  incline  to  mercy. 
In  cuvumstauces  which  must  have  been,  nay, 
yet  are  doubtful,  Squires  has  found  mercy. 

And  though  1  am  satisfied  there  never  was  a 
time,  when  the  most  rigid  hand  of  justice  was 
more  properly  required  to  the  suppression  of 
perjury  ;  I  am  as  fully  convinced  there  never 
was  a  time,  when  active  and  resolute  prosecu- 
tions for  other  reproachful  villainies  auould  be 
more  cautiously  deterred  by  such  proceedings 
as  the  present  against  the  now  defendant. 

Mr.  Nares*  May  it  please  your  lordship, 
and  you  gentlemen  of  the  jury  ;'uotwithstand- 
iiig  tilts  cause  has  taken  so  long  time  already, 
and  no  man  upon  earth  is  more  sensible  of  the 
great  care  thatahould  be  taken  nut  to  mis-spend 
the  time  of  the  Court  unnecessarily  than  my- 
self; yet,  as  it  is  now  become  my  duty  to 
make  some  few  observations,  1  shall  make  no 
apology  for  imrudiDg  on  vour  patience  some* 
what  longer,  though,  |Hfrha|)8,  in  the  conse- 
quence, it  may  be  to  little  pur|>ose. 

I  am  not  only  of  counsel,  but,  I  will  say, 
greatly  concerned  for  the  prisoner  at  the  bar; 
who,  to  use  the  epithet  of  my  learned  leader, 

•  A  Judge  of  C.B.  1771.    »•■  --^ 

thilhcwMtiwHeqeMHi 


Tiial  of  Elizabeth  Camningf 

may  be  truly  called  extremely  n6fi 
and  that  in  many  instances ;  unforti 
being  accused  of  any  crime,  if  ever 
cent;  unfortunate  in  having  once  ap] 
this  court,  as  a  witness,  and  being  so 
as  to  be  l)elieved  ;  and  unfortunate  lik 
this  respect,  aa  she  is  now  brought  to 
for  a  perjury  in  auch  a  cause,  and  un 
circu instances,  as  i  will  venture  to  say 
nals  of  time  cannot  produce  a  simihtr  i 
It  is  not  my  inclination  or  my  meanii 
fleet  upon  any  man :  I  mean  not  to  refl 
the  worshipful  magistrate,  through 
lenity,  though,  perhaps,  a  mistaken  o 
cious  one,  she  now  atands  accused  ;  t 
cannot  help  observing,  that  this  pre 
hatli  been  carried  on  and  supported  wi 
warmth  and  spirit  than  any  I  ever  hac 
nour  to  attend ;  and  if  this  warmth  i 
spring  merely  from  a  zeal  of  hringin 
posed  criminal  to  exemplary  punisnn 
be  it  from  me  to  blame  or  condemn  : 
forbid  such  a  warmth  should  ever  cool, 
a  spirit  g^w  degenerate ! 

Thus  much  1  think  it  material  to  sa 
prisoner  at  the  bar,  on  the  nature  aoJ 
of  her  prosecution ;  that  it  ia  totally  i 
dented,  that,  as  a  prosecutor  who  bad  c 
a  criminal,  she  should  now  come  to  be 
overturn  that  conviction.  You  know,  a 
I,  the  unfortunate  prisoner  was  a  witnei 
Mary  Squires  and  Susannah  Wells ;  ; 
know  that  they  were  both  convicted ; 
will  recollect  one  circumstance  well  wo 
consideration,  and  which  1  shall  eode 
inforce  more  strongly  hereafter,  that  it 
on  her  testimony  only  that  these  perse 
convicted,  but  her  evidence  was  supn< 
the  testimony  of  another  person ;  wh 
son's  testimony  you  are  now  totally  < 
of,  because  it  hath  been  artfully  insin 
the  world,  as  many  other  circumstanc 
been,  that  she  hath  now  recanted  all  st 
at  the  trial,  and  therefore  the  poor  pri 
the  bar  dare  not  venture  to  call  her,  for 
should  by  any  means  be  induced  to  co 
her  former  evidence;  which  if  she 
prisoner  might  be  condemned,  insteac 
quitted,  by  the  mouths  of  her  own  w 
jfow  that  recantation  was  brought  i 
shall  hereafter  tell  you  from  the  inst 
of  my  brief:  but  I  cannot  help  mak 
observation  at  present,  that  the  gentU 
behalf  of  the  prosecution  have  not  ven 
insinuate,  uor  attempted  to  prove,  wha 
were  or  could  be  used  by,  or  what  ii 
that  woman  was  or  could  be  under  to 
prisoner  and  her  poor  relations,  to  ind 
to  swear  as  she  did,  if  all  she  swore  was 
a  falsity. 

And,  gentlemen,  however,  through 
ness  or  lenity,  a  magistrate  may  think, 
sake  of  any  particular  persona  being  co 
in  their  own  private  judgments  that  si 
bate  been  wrongfully  convicted)  tl 
ii  kiMable;  yet  give  B 
1 1  can  ajMak  it  fiom  gi 


453J 


^/&r  Witfitl  and  Corrupt  Perjurt^t 


A*D.  175i. 


Ibflrilj,  thai  iuofa  in<}UJrie«  into  the  gutll  or  in- 
tteonieeor  ■  {irnofier,  il'ter  they  have  been  1e^ 
lllljr  eorrf icted,  irevsKtljr  iiioonvetiient  and  im- 
|n)irr;  tod  Allhouj^h  prosecutions  of  ihis  nn- 
lurf  tniy  shew  kindness  to  pftrticuUrs,  ^et 
itKt  may  be  alleikdeti  nith  cruelty  to  ma o kind 
lafcnenl,  ii«  they  (end  tu  inie(TU|H,  at  leas^  if 
ttH  overtom  that  commoo  course  of  ju&lice, 
Ibal  4be  ittsdotti  of  this  kiug^doiu,  in  aliases, 
hu  citabtiftbeil  i  and  may,  and  must  serre  to 
totiaiditf  ajid  |>revetit  tjiunberi  of  people  froio 
MEtmcftdng  prosecutions  to  endeafour  to  bnng 
llMgtutty  to  punidiment,  lest^  by  some  Grange 
tltmiioa  of  tifain,  ihey  ihemtelies  may,  in 
llcirciim,  l»c  prosecuted. 

Afid,  ipoUetnen,  when  I  tay  prosecutions 
lad  UMfumifs  of  ihis  onture  mu^t  be  atiende^l 
«kk  gml  tticonveniency  to  (he  commnnily  in 
fMrtl,  I  By^tak  it  from'au(hon(y,  in  a  case  jo 
'^hkk  1  was  counsel  fur  the  prttfouer. 
lto<  WM  a  mao,  whose  name  was  Wil- 
Mas  indicted  at  Htafford,  for  a 
cammittfd  at  Wolverhuujpton  town's 
f4th  of  Deoemben  It  appeared 
the  moment  the  prisoner  wti^ 
itiiU  the  robl»ery,  he  told  the  prosecu- 
i  that  very  day  at  Uliogton :  the  pro* 
r,  huweter,  swore  to  the  man,  though  it 
'  (m  ly  mooD^ti^ht :  aHer  which  1  called  fur 
ll»  ^itoner  five  witne^^es*  four  of  (hem  irooi 
liiinftini^  and  another  froun  Red  bourn,  near 
Ut  AUi-n'*  III  my  life  I  never  heard  so  cir- 
mrt'  ;iCcoun(,  and  sucb  a  va^t  muhi- 

tiiie  I  ttii^  circumstances,  in   point  of 

k)iii^,  and  knnMlcd;^t  of  the  man,  to  prove  him 
stiftliiiutoii  n^  Uie  time  the  fact  was  cotuniUted  ; 
ktfti:  lUe  teiinieil  jud^t  «iit>  (rieil  the 

friiC'  -      i    Mr<  8eijeant  Haywood,  w|i«i 

^1  ut  couuAcl  with  the  projiecutoff  What  Uv. 
mM  «ay  Ui  it  ?  for  (hat  he  never  heard  so 
'^  '  ..   bi^  life.     In  reply»  they 

<>na,  who  swore  they  saw 
|>rrv<M><  r  ;ia  vmiI verba mpton  the  day  the 
fftMirry  *vii»  committed.  The  pris^mer  wag 
OwiriclriL  HiHin  nfter^  as  koou  as  (be  prisoner 
iciunitfi  to  spiol,  he  declared  his  brother  com- 
MS^d  (lie  roljhery  ;  and  there  beiof;  a  (^i^rt^t 
iipnitlHili  iu  (he  country  in  i^eoeral  to  save 
tW  iiriHincr^  sup  potting  hiui  (o  he  iimocent, 
Uwv  direc(ed  the  bru(bfr  to  be  taken  up,  and, 
^klog  charged  widi  this  robbery,  be  imme- 
'^f  €ODfif»««d  it,  atidaeireral  odier  robberies, 
^  nWli  lie  was  imfiiediAlely  committed  (o 
•tck  t^aol,  and  for  one  of  whirh  he  was 
wtnU  hatii^ed.  l^bis  account  wn%  brought 
'  Shrewsbury,  and  be  wab  so  fur 
•  to  order  the  under- sheriff  of 
..„..,.  ,f.  »,.  ,rre,4  to  eu(|uire 
>lb«cti  fiin  witnesses.^ 

|eiJt-^^..iU...i^ij  c».4,*-..v.i  of  (he  clergy- 
I  tin  panab,  aitd  received  for  an  an&wer, 
#y  itcrm  att  ijiTHOini  of  i^ood  clurartur.— » 
Ksisottot  »^  <  ctly   lo  me  ai  Glou- 

,  iTTtb  a  t'  II  muny  gentlemen  to 

Tins  request  1  coui- 
I  (cad  (he  HCCfiuut,  bui 

t%  Uc  k^dy  botwUhsiaudiugj  toiat  rcacons 


[454 

to  apprehend  him  (j^nilty;  and  however  he 
migdt  be  inclined  to  exu  nd  hts  merry  to  tbit 
priiioner  in  particular,  yei  tie  pdiould  not  i)o  it^ 
as  he  thoug^bt  it  of  the  most  daoHenms  ronse<^ 
cjuence  to  ihe  justice  ot  the  ua(ioii  in  |reiieraly 
lo  (ry  the  guilt  or  innocence  of  a  priKooer, 
afYer  his  country,  on  a  fjtr  and  impartial  trial, 
had  found  him  iruiUy.  A(W  \Wt%  the  man  was 
hang-ed;  and  after  be  was  executed,  twenty 
witnesses  might  have  been  produced  to  have 
t>roved  him  at  Wolverhampton,  when  he  was 
sworn  to  lie  at  Isiiogton,  and  uo  pemon  in  the 
country  doubted  of  hisi  ^uilt.  This  I  mention 
to  nUew  how  dangerous  theni*  sobse<(tien(  trials 
mus(  iiecessardy  lie.  Why  »re  they  ditn^^erousf 
Because,  aupposiiij^  people  wicked  enough, 
either  out  of,'  love  to  the  party  accused,  or  mA> 
lice  to  the  prosecutor,  to  medi(ate  reven^^e  ou 
bim  two  or  three  years  after,  (fur  (here  is  oo 
time  limited  to  call  his  prosecutor  to  an  account, 
and  to  indict  him  for  jierjury)  he  may  be 
brought  to  a  trial,  when,  perhajis,  all  h(«  wit* 
nesses  are  dead,  ami  it  will  be  totally  impossi- 
ble for  him  to  support  his  testimony.  \\  hen 
I  have  said  this,  I  am  sure  these  oliservattons 
w^ll  and  ought,  at  leasts  to  weij^h  with  you  ihui 
far,  th»t  if  any  doubt  sbouhl  arise  of  (he  i^uilt 
of  (he  prisoner,  you  will  not  trive  the  lemit 
eocfiurii|rement  to  tlits  sort  of  prosecution  ;  lor, 
svipjiifStng  people  wicked  enough  either  to  be 
templed  by  rewards,  nr  promises  o(  reiiardsi 
there  is  not  a  oian  living  safe  or  secure  from 
some  prosecutions  of  this  UB(ure« 

I  cannot  help  once  more  mentioning  the 
great  dithculties  (he  primmer  lies  under,  in 
being  fleprived  of  (he  testimony  ol  the  only  per-^ 
son,  v%  hu  could  ^peak  (o  the  snme  fads  the  [iri* 
eiooer  dtA,  which  wnulil  prnvf  her  iiiiioeent. 
Every  boily  knows  that  Vtrtue  Hull  ga%e  the 
same  account  that  (tie  prliiou^r  ihd  of  therob* 
bery  ;  and  what  convinces  me,  beyond  ull  pos- 
sibilrty  of  doubt,  (hut  %viiut  Virtue  Hall  said 
could  not  be  diciated  or  luught  her,  is,  she  did 
not  only  go  s(ep  by  step  with  the  p*iHi»ner*s  re- 
IstJon,  as  lar  as  that  went, — but  utter  she  had 
left  the  story,  Virtue  Hall  took  it  up  again, 
and  told  you  what  became  of  the  stay^,  aod  the 
conversation  that  passed  after  she  wos  put  into 
the  room,  and  what  she  feared  from  too  ntce 
an  enquiry  into  it  aflerwards.  This  witness 
bas  not  tuen  calleit. 

In  order  to  tibviate  any  objections  or  obser- 
VQlions  dial  wert-  extiected  to  Im?  made  from  not 
proikiciog  her,  il  hath  been  throw o  out,  (hat  if 
she  was  prinhiced,  she  could  not  \te  a  witnewa^ 
at  least,  ou  behalf  of  (he  prosecution,  liecause 
(he  moment  whe  ci^me  to  charge  the  prisoner* 
she  mu»t  confess  herself  perjured  ;  but  I  lietf 
leave  tii  insist,  Unit  such  an  objection  would 
only  go  to  (he  cunlit,  not  (o  her  comfietency  J 
ami  II  wan  so  delerriiine4  iiv  this  court,  in  an  in* 
dicltucnt  Bgumii  one  Murphy*  tor  a  for«ery  of 
a  seaman's  wilK  There  was  a  prcrteuded  will 
iiet  op  «nd  proved  in  the  Commons ;  the  very 

^  See  it  in  thte  f oUinei  iDiBedislely  sfl«c 
(be  prsaetit  CftVC. 


455]  27  GEORGE  II. 

man  who  forged  the  will,  and  had  swore  in  the 
ConimoDS,  to  obtain  ihe  |)r(»l>ate,  and  to  outhea- 
ticale  the  will,  was  called  on  behalf  of  the  pro- 
secutor, to  prove  that  he  forged  it  by  the  direc- 
tions of  the  prisoner.  I  made  tlie  same  objec- 
tion to  his  testimony,  as  is  now  hinted  at  with 
respect  to  Virtue  HalPs ;  hut  the  Court  over- 
ruled it,  and  the  man  was  admitted  an  evidence. 
He  came  and  told  the  Court,  all  he  had  said 
upon  oath  in  the  Commons  was  a  contrivance 
between  Murpliy  and  himself,  and  that  every 
word  of  it  was  false ;  and  on  his  evidence,  sup- 
|H>rled  by  some  corroboration  circumstances, 
Ihe  prisoner  was  convicted,  if  there  wanted 
other  arguments  or  cases  to  prove  this  sort  of 
Bvidence  admissible  in  this  court,  1  need  only 
inentioQ  the  common  case  of  subornation  of 
P^'ju^'y  >  lliere  the  person  who  hath  been  sub- 
fM-ni'd,  and  bath  sworn  false,  is  generally,  if  not 
always,  callud  to  convict  the  suborner,  and  to 
shew  and  prove  by  what  means  he  was  prevail- 
ed on. 

Virtue  Hall  then  certainly  would  have  been 
a  proper  witness,  if  they  would  have  called  her. 
I  have  already  menlioued  sume  ^reat  difficul- 
tiirs  tlie  prisoner  is  put  nnder  from  her  not  being 
produced  :  1  shall  mention  only  one  more ;  the 
prisoner  may,  by  this  means,  be  deprived  of  an 
opportunity,  of  shewing  the  Court  the  methods 
that  were  used  to  bring  about  this  recantation ; 
and,  as  she  may  yet  be  called,  which  will 
make  this  account  evidence,  and  as  i  appre- 
hend it  will  be  for  the  benefit  of  my  client,  I 
cannot  conceal  it.  And,  gentlemen,  I  am  in- 
structed to  bay,  and  have  many  witnesses  in  my 
brief  to  prove  those  instructions,  that  Virtue 
Hall's  recantation  was  brought  about  in  a  very 
extraordinary  manner :  she  wss  called  upon  in 
public  to  declare,' whether  what  she  had  sworn 
on  the  trial  was  true  or  false.  And  though  I  doubt 
not  hilt  1  he  matriN-trate  meant  well  by  it,  yei,  when 
called  iipun  tltus  publicly  to  make  recantation, 
what  (lid  she  say  P  she  declare<l  openly,  all  she 
had  sworn  wus  tmih.  8lie  \^as  asked  the  same 
question  again,  and  she  made  the  same  answer ; 
upon  which  somebody  or  other  suggested,  it 
would  be  proper  to  take  her  in  private.  For 
Gud'ssake!  why  in  private.^  J  am  sure,  by 
the  kno\\led:4e  I  have  of  the  worshipful  magis- 
trate, he  could  never  iiitrnd  to  seduce  her  by 
re\«  ai  (Is  or  promiices :  but  this  may  be  the  case ; 
the  poor  girl  mi)>ht  weakly  imagine,  that,  if 
she  altered  her  evidence,  she  init;ht  have  some 
rewards,  though  the  strict  justice  of  the  magis- 
trate never  could  or  would  have  given  her  the 
least  foundation  for  such  a  belief.  But,  as  the 
poor  and  the  i;jfnorant  are  more  liable  to  be  ted 
away  with  false  fears  or  hopes,  built  on  the 
weak  basis  of  their  own  imagiuations,  the 
taking  her  into  a  private  room  was  by  ii(» 
means  proper.  After  she  had  been  exaiuined 
in  private,  she  did  return  and  made  tiie  re- 
cantation. But,  if  she  did  make  that  re- 
cantation, why  does  she  not  come  here,  and 
•wear  and  avow  it  ?     I  dreailed  seeing  her  a|)- 

Eear ;  because,  if  all  she  said  was  lalse,  it  must 
avo  beea  owing  to  somo  undue  influence^  and 


Trifd  ofEUzMketh  Canningt  [4fiS 

in  consequence  of  some  deep -laid  plaa,i>hsi^ 
or  contrivance  of  the  prisoner  at  the  bar,  or  so«i 
other  person.  Nothipg  of  this  Datura  kiA 
even  been  suggested;  then  what  room  en 
there  be  for  aoy  presum|ition  of  that  uatoiaf 
What  could  iodace  Virtue  Hall,  who  bad  M 
friendship,  nor  even  acquaintance  wilb  the  pi^ 
soner,  to  turn  evidence  oo  her  behalf,  agaiMt 
her  greatest  friend  in  the  world,  id  whose  ha«i 
she  bad  lived,  and,  perhaps,  been  auppaitadf 
reward  she  could  not  have  from  the  poor  Mb 
gent  prisoner,  or  any  of  her  rdatiOM ;  mi 
therefore  the  behaviour  of  Virtue  Hall,  tf  Ai 
did  swear  false,  is  totally  uaaocountoUe.        i 

But  now,  gentlemen,  having  said  thiii  ii 
order  to  take  oif  or  counteract  tlie  prriDdkM 
that  have  artfully  been  raised  againat  tM  f» 
soner ;  here  she  now  stands  at  the  bar,  wd^B 
most  be  tried,  however  impro|terly  aha  Hf 
have  been  brought  upon  her  trial.  I  0tmtL 
help  mentioning,  happy  she  is,  that  ahe  basfil 
such  a  jury  to  try  her;  for,  accordiu^  to  tti 
best  observations  I  can  make,  1  never  Miva 
jury  attend  %vith  greater  iroiMrtiality. 

1  should  now  consi<ler  what  are  Uie 
the  counsel  for  the  prosecutor  have  laid 
as  the  foundation  for  proving  the  prisooer  gail* 
ty.  They  say  the  story  is  extretoely  immtkm 
hie,— full  of  absurditiiea,  so  riilicuUNM,  that  ■• 
person  in  his  senses  cdbid  contrive  or  bditfi 
it:  but,  gentlemen,  let  roe  tell  you,  under ibt 
direction  of  the  Court,  trials  for  perjury  are  art 
to  be  determined  by  matters  of  impnibabilit|f«' 
If  a  person  is  indicted  for  perjury,  and  onofnC* 
ness  is  only  produced  to  swear  directly  the  eSD* 
trary,  the  person  cannot  l>e  convicted  ;  bceaoM 
there  is  oath  against  oath,  and  the  justice  of  tijil 
country  is  never  weighin*;  the  credit  of  wi> 
nesses  in  golden  scales ;  but,  if  there  is  oilh 
against  oath,  the  presumptive  innocence  d 
each  is  equal.  Then  consider,  the  priMOcr 
hath  sworn  the  fact ;  this  is  to  be  consi«lered  ti 
oath  by  oae  witnessi  of  a  fact,  which  is  only  si* 
tempted  to  be  contradicted  by  circumslancei,CI 
by  matter  of  improbability. 

Mr.  Davy  has  said,  that  no  person  livioft 
nay,  human  nature  itself  is  not  capable  of  such 
cruelty,  as  that  of  putting  another  persooti 
pain  merely  through  wantonness.    And  I  haft 
seen  an  expression  of  a  very  great  writer  It 
that  purpO!»e,  thou<>h  in  other  terms,  "  There 
is  no  man  upon  earth  so  wicked,  as  to  play  the 
plalonic  with  damnation."     Let  us  consider 
how  fur  that  principle  is  applicable  to  the  pri- 
Rouer  at  the  bar.    Inhere  is  a  maxim  never  coa- 
troverted,  *  Nemo  re|)enle  fiiit  turpissimus.'    I 
may  safely  say,  no  pt-rson  leaped  from  exceed* 
ing  g^od  to  exceeding  bad  in  a  moment;  It 
takes  up  a  great  deal  of  time  to  get  rid  of  that 
natural  modesty,  which  every  person  is  eiH 
dued  %vith ;  a  man  must  go  by  8te|»s  to  tiM 
pitch  of  wickedness.     In  what  state  was  tbif 
poor  girl  before  this  transaction?     How  do  the 
witnesses  on  behalf  of  the  prosecutor  descvibe 
herP    **  A  girl  of  as  good  a  oharacler  aa  aoy 
in  the  world ;  1  have  known  her  from  her  birtb  | 
and  1  have  nerer  beard  ddj  ill  of  her,**  wm 


>r  WllfiJ  and  Ctnmpt  Perjury. 

\  mf  Mrs.  Majle.  How  couM  this 
this  wen  ioftltiit,  a  girl  of  a  i;^oed 
ton  that  wicked  anil  abandoned 
abe  mtnft  be,  to  ^ive  all  this 
tUNCfideBce  against  a  person  slie  liafi  neter 
•M  in  ber  life  f  la  it  conceivable  sl>e  coold 
bm  bad  any  acheme  to  injure  Squires, 
»W  waa  an  utter  stranger  ?  It  certainly  is 
lodeed,  could  that  be  conceived,  she 


A.  D.  17M. 


[458 


I 


■at  be  ma  wicked  as  Mr.  Davy's  rhetoric  can 
Ml  bar:  bat  whilst  she  stands  thus  accased  of 
mSySbe  moat  be  acquitted  of  one  dan- 
put  of  ber  character  which  hath  been 
iii  ta  bar  obarge,  which  is  art  or  contrivance ; 
B  think  her  capable  of  either,  who 
this  a  formed  scheme;  because, 
it  to  be  ao,  it  is  the  only  one  that 
I  Bat  Ibil  of  being  detected, 
fcl  Aa  ffeDtlcm«^n  have  said,  and  would 
•M  JM  bnipve,  the  priaonei's  friends  have 
lin  fNat  care  and  pains,  as  far  as  possibly 
tejOMlila  fix  this  to  be  the  place,  and  to 
■Midi  te  descriptions  of  it.  It  is  insi- 
mlad^  •  aaD  went,  came  back  again  from 
HMMyftv  OB  the  road,  saying,  It  is  all  right ; 
kmt  m  bty .  But  when  that  comes  to  be  oh- 
■Bad  ■fOBy  you  will  And  no  more  fotiudation 
wlbitratatioD,  than  for  tome  other  evidence 
hH  has  been  given  of  the  contrivHpre  in  as- 
■iMNBf  the  place.  Bdl  could  there  be  an 
mtmwmtt  in  ascertaining  the  person? 
•hM  bt  m  reflection  on  your  understandings 
iialimate  tliat  you  could  iliiok  so.  Wells  was 
brBcraaB  pointed  out,  and  the  person  all  the 
Ml'  Ibonght  it  must  be ;  her  own  character 
■M  baft  convicted  ber ;  she  conid  never  have 
Map  a  defence  like  ibis;  the  prisoner  must 
bn  been  sure  to  have  fixed  her  at  that  place; 
MbMl  dnring  the  lime  of  her  confinement, 
li  person  wouM  have  interposed  to  have  saved 
kr  flbas  the  gallows.  But  how  did  the  pri- 
■Mr  act  when  she  came  there  P  That  very 
pmn,  who  bad  been  thus  |>ointed  out  to  her, 
lid  whom  she  with  safety  and  impunity  might 
bie  accuaed,  if  she  had  had  any  scheme  or 
ion  of  mjoring  any  one,  she  totally  acquits 
If  mt  fact  of  robiiing  her.  It  was  asked.  Did 
Ae  tab  youp  Her  auswer  was.  No.  In  an 
hiiBt  she  said  so.  One  of  the  company  went 
•  lar  aa  to  say,  Tliere  waa  mother  Wells 
Wllat  eiiuM  be  expected  from  that,  but  that  she 
Viald  have  instantly  said.  That  is  the  woman  P 
h^  what  does  nhe  say  ?  That  is  not  the  w» 
Muibat  robbed  me;  there  is  the  woman  that 
Med  me  (poinfinflf  to  Sqnires).  A  iierson, 
Iht  ao  one  there  did,  or  could  direct  her  to ; 
kraniae  it  was  comrary  to  every  body's  ex|»ec- 
UisB.  Then  Mr.  Davy  would  have  you  ima- 
fiaetbif  was  a  concerted  scheme  between  her 
od  ber  mother  to  raise  contributions.  Let  us 
7  this  auggestion  ugon  any  one  principle  of 
atnre  or  reason.  Upon  my  word,  I  can  scarce 
Uok  of  sucb  a  notion,  and  keep  my  counte- 
uwe.  I  remember  the  saying  of  a  very  great 
■t,  which  ia  tbe  beat  answer  tnat  can  ws  made 
ik:  (Hudibraa,  Pt.  2,  Canto  i.) 
**  Tbe  imo  tlMt  bangs,  or  beats  ont^  bnins, 
«  Tbe  40fU'»  in  him  if  he  feigns."^ 


WooM  aba  go  within  a  hair's-breadth,  nay  to 
the  very  brink  of  death,  to  raise  friends  by  way 
of  contribution  P  Can  you  a  muineot  doubt, 
upon  bearing  even  Mrs.  Maple's  account  of 
her,  that  her  life  was  in  the  utmost  danger? 
Imleed  there  \\  ere  no  hopes  of  her  recovery.  If 
you  have  any  doubt  of  that  fact,  the  prisoner 
hath  other  witoesnes,  who  COold  prove  it  to  a 
demonstration.  What!  is  fliis  giri  to  kill  her* 
self,  to  liave  a  anbscriptton  after  her  death  for 
tbe  benefit  of  her  famdy  ?  It  is  inconceivable 
to  the  last  degree.  Then  consider  how  con- 
sistently the  mother  acted  with  any  scheme  or 
design* of  that  nature.  If  she  intended  ber 
daughter  alionid  be  almost  starved,  and  sbouki 
be  concealed  till  this  was  brought  about,  why 
did  she  advertise  her  daughter  P  which  naa  the 
only  means  to  discover  her  immediately,  and 
marr  the  plot,  if  she  knew  when  she  waa  to 
return.  How  could  she  be  (aa  it  waa  beyond 
what  couM  be  feigned)  so  particulariy  afiVfcted' 
at  tbe  sight  of  her,  on  her  return  P  These  cir- 
cuaMiancea  must  be  totally  laid  ontof  theqoce* 
tion,  before  yon  can  believe  it  a  acheme ;  or, 
if  she  did  it  designeclly,  it  must  be  done  with* 
out  any  view,  either  to  benefit  herself,  or  any 
of  her  family.  But  then  the  gentlemen  have 
recourse  again  to  improbabilities :  they  ask, 
How  could  she  possibly  go  from  mother  Wells'a 
to  London,  without  telling  her  complaint  P  Mr. 
Morton  has  mentioned  many  reasons,  why 
she  did  so.  Mr.  Diivy  would  have  you  be- 
lieve, the  only  one  that  could  be  suggesletl,  waa 
for  fear  of  meeting  any  of  the  people  belong- 
ing to  the  house ;  and  to  answer  this,  he  hath 
said,  why  did  not  she  call  at  gentlemen^ 
houses,  as  she  could  never  conceive  she  should 
meet  with  mother  Welts  and  her  conspirator! 
there  P  Think  of  this  objection  one  minute,  and 
you  will  not  want  an  answer  to  it.  How  wae 
this  poor  wretch,  in  that  coi  dition,-^wretche4 
and  almost  frightful  in  ap|»earance, — witlioiit 
strength  (almost)  to  tell  lier  story,— to  gain 
credit,  if  she  had  complained  P  8he  might  at 
well  have  atti-mpted  to  have  told  her  story  to 
the  winds.  8he  must  necessarily  argue  thus 
with  herself,  if  she  had  her  senses:  Weak  as  I 
am,  I  must  endeavour  to  get  home  before  I  tell 
my  complaints ;  because  I  muat  go  to  the  per« 
suns  that  know  me,  before  1  can  we  credited. 

The  mimient  she  came  home,  she  made 
known  her  Niory ;  and  that  was  the  proper 
time  to  make  it  known  But  the  manner,  io 
which  Khe  related  it,  I  shall  observe  on  here- 
after, as  it  very  well  desrrves  your  attention. 

Having  endeavoured  to  answer  some  of  the 
objections  made  to  the  girl's  story,  let  us  now 
attt-ml  a  little  to  the  witnesses  on  behalf  of  tbe 
prosecution,  and  conttider  how  far  these  have 
been  consistent  with  themselves,  and  how  fiur 
they  are  the  best  witnesses  that  could  have  beeil 
produced,  in  onler  to  clear  up  thia  intricate 
affair ;  because,  if  it  should  be  obvious  (as  I 
dare  say  it  is  to  every  boily)  that  the  prosecutor 
has  it  hi  his  power  to  clear  up  thia  matter,  and 
yet  hath  left  witnesses  unexamined,  who  were 
the  only  ones  capable  of  doing  it  in  point  of  lair 
ai  well  aa  reaaoo,  e? ery  tmng  mtiat  be  pre- 


459]  27  GEORGE  II. 

•umed,  that  can  be  praumed  agaiust  tlie  pro- 
aecutioo. 

It  will  take  up  too  much  of  your  time  to  go 
into  critical  otoerratioDs  on  every  witness; 
therefore  I  shall  only  here  and  there  point  out 
aome  particular  circunu^taoces,  which,  per- 
haps, may  have  escapetl  Mr.  Morton^s  notice, 
with  respect  to  such  inconsistencies.  The 
gentlemen  of  the  other  side,  oonsdous  to  them- 
selves that  tliere  have  been  some  gross  contra- 
dictions, have  endeavoured  to  persuade  you, 
that  supposing  some  circumstances  in  the  ac- 
count their  witnesses  have  given  are  inconsis- 
tent, and  others  entirely  false ;  yet  you  are  not 
to  regard  any  thing  that  does  not  go  to  the  very 
substantial  point,  which  is,  whether  Squires 
was  then  at  Enfield-Wash  ?  and  that  little  cir- 
cumstances are  always  to  be  overlooked:  but 
give  me  leave  to  tell  you,  that  is  not  the  way 
of  trying  the  weight  of  evidence.  And  1  am 
aure,  when  you  come  to  consider  what  the  na- 
ture of  the  evidence  is,  you  will  perceive  it  abso- 
lutely necessary  to  go  out  of  the  common  road 
in  the  examinauon  of  the  witnesses,  in  order  to 
detect  the  villainy :  you  will  easily  think  it  is 
absolutely  impossible  a  set  of  witnesses  can 
contradict  one  another  in  the  very  point  they 
are  called  for,  when  they  have  been  half  a  year 
conferring  together  on  that  point  only;  they 
know  how  to  swear  as  to  that  particular ;  they 
are  upon  their  guard,  as  to  that ;  they  know 
bow  to  answer  you.  Then  how  are  these  wit- 
nesses to  be  treated  P  They  are  to  be  Uken,  as 
far  as  possible,  off  their  guard,  and  to  be  asked 
those  things  they  thought  never  would  be  in- 
quired into.  It  IS  by  this  means  that  you  are 
to  find  out  the  inconsistency  ;  because  truth  is 
always  the  same,  and  always  consistent;  it 
will  be  equally  so  with  resjiect  to  the  circum- 
stances attending  a  fact,  as  the  very  fact  itself. 

Gentlemen,  J  shall  begin  with  George 
Squires,  the  son: — What  did  that  man  say? 
You  observe,  Mr.  Davy  represented  him  as  a 
weak,  ignorant  man,  and  almost  6tigmatize<l 
him  for  a  fool,  the  moment  he  appeared ;  and 
for  what  reason  ?  It  is  not  difficult  to  assign 
the  reason  ; — because  he  was  apprehensive 
that  he  would  make  some  blunder :  but  was 
there  the  least  sign  of  either  a  weak,  an  igno- 
rant, or  a  foolish  man,  during  the  whole  course 
of  his  examination  from  Abbotsbiiry  to  Lon- 
don ?  There  certainly  was  nut.  This  exami- 
nation he  expected,  he  was  apprised  of  it,  and 
prepared. — Then  consider  how  he  appeared, 
when  taken  out  of  the  road  from  Abbotsbury 
to  London :  Mr.  Morton  asked  hiui,  Where 
did  he  set  out  from  ?  He  staggered  a  good 
deal,  and  desired  to  be  asked  no  more  ques- 
tions ;  at  last,  he  went  from  Kent,  from  his 
sister  Mary. — Pray,  what  house  was  she  at  ? 
—I  cannot  tell.— Where  did  you  lie  ?  where 
did  you  trade  ?  or,  where  did  you  buy  your 
goods,  or  where  did  you  dispose  of  them  ?  In 
above  an  hundred  and  fifty  miles  travelling,  he 
■carce  tells  you  he  went  into  or  by  any  one 
town,  or  notorious  place :  what  is  the  reason 
ha  cao  give  no  better  account  r  Why,  becauaa 


Trial  ofElixabeth  Canningf 


[460 


he  never  expected  to  have  been  asked  about  it 
In  short,  such  a  strange  and  improbable  ac* 
count  I  never  heard  in  all  my  life. — ^Tben  ooa« 
aider  the  other  evidence  that  has  been  given. 
Far  be  it  from  me  to  pretend  to  aay  they  have 
not  given  you  an  exceeding  strong  account  of 
this  woman's  being  at  8outb- Parrot,  and  com* 
in^  from  thence  up  to  London:  but  thenia 
this  observation  to  be  made,  even  with  ratpeot 
to  these  witnesses  ;  several  of  them  havaiud, 
before  the  time  of  Sqoires's  trial,  they  ezpedei 
to  be  called  upon  aa  witnesses,  and  dedtrai 
what  they  could  prove ;  yet  not  one  in  twenty 
either  did  appear  on  the  former  trial,  or  wtif 
ever  asked  to  appear.  But  this  obaervatiM 
may  be  made  as  to  the  number  of  witaeMi 
that  have  been  examined,  that,  whercw  a 
story  is  talked  of  by  one  or  two  people,  mi 
they  have  declared  that  they  had  seen  Ifaiy 
Squires  the  gypsey,  and  that  they  wcitie- 
(|uainted  with  her,  another  person,  to  wlisiiil 
is  related,  recollects  he  hsth  seen  a  gypMf  S 
and  being  told  that  must  be  the  same,  woaU 
not  any  body  be  almost  |)ersuaded,  in  half  a 
year's  time,  that  they  must  mean  the  aaaM 
person  ?  When  the  centre  is  moved,  tbaic  is  a 
circle  succeeds,  and  spreads  from  man  lo  man ; 
but  supposing  the  first  to  be  deceived,  all  the 
rest  might  depend  upon  his  credit ;  whercM^ 
had  they  been  asked,  upon  recent  reilediei^ 
abstracted  from  other  people's  repreaentatiea^ 
they  never  would  have  spoke  with  that  6egm 
of  certainty. 

But,  supposing  these  observationa  to  k 
justly  made,  Mr.  Davy  says,  there  ia  one  irt 
of  witnesses  that  must  prove  the  prisoner  goihfi 
beyond  all  degree  of  doubt.  We  have,  ssvi 
he,  some  witnesses,  which  were  the  giii^ 
friends ;  they  went  down  to  assist  her  as  ftr  « 
possible,  not  imagining  she  would  tell  a  h\m 
story  ;  but  when  her  own  friends  turn  agaioil 
her,  it  is  the  strong^rst  evidence  in  the  woiU, 
to  think  she  was  deceived.  The  principal  wit« 
ness  called  for  this  purpose  was  Mr.  Nssh; 
and  he  tells  you,  the  very  instant  he  csflM 
down  to  Enfield,  he  found  the  girl  was  in  tbi 
wrong :  he  said  to  her,  Child,  you  are  roistakeii 
you  can  never  have  been  there.  After  what 
he  hath  here  sworn,  could  you  conceive  thit 
Mr.  Nash,  a  man  of  sense,  a*  man  of  prudenoc^ 
a  man  of  justice,  could  ever,  afier  he  was  coo- 
vinced  the  prisoner  was  in  the  wrong,  contioai 
to  give  any  assistance  to  the  g^rl  in  the  prose- 
cution  ?  I  am  sure  it  is  casting  a  greater  re- 
flection upon  Mr.  Nash,  than  1  would  chuseta 
do  on  any  one,  to  suppose  he  could  act  such  a 

Ksrt:  but  bow  do  we  find  him  acting?  Doth 
e  behave  coohistently  with  such  conviction  af 
her  being  deceived  ?  'Ten  days  al\er,  he  writM 
to  a  person  of  fortune  and  consequence,  (wha 
will  be  produced)  to  encourage  a  subacriptiM 
in  favour  of  thegiri.  This  objection,  I  think. 
is  not  to  be  answered.  Then  another  I'riend  of 
the  prisoner's,  Mr.  Aldridge,  is  called,  and  ht 
said  exactly  the  aame  thino: :  he  was  every  hit 
as  much  convinced;  he  detested  every  thing 
the  giri  had  toki  him ;  and,  in  abort,  be  waalka 


fit  Wdfnl  and  Corrupt  Perjury, 
be 


A,  D.  1754-. 


mitest  coBvcrt  that  eter  could  possiljly 
inagined,     I  asked  hinif  Have  you  had  any 

Huwan)  since 


laiag 

coTiTensalion  with  Mr.  aod  Mrfl 

tint  time?  What  does  he  say?  1  own  I  have^ 

md  I  distributed  a  paper  in  iafour  of  the  pri< 

toner.    Ami,  unless  my  instructions  are  false, 

le  then  declared  be  believefl  the  story,  aod 

cmtestly   desired  they  would  encourage  the 

«ihscri]ition. 

1  should  atmcMit  ha^e  suspecled  my  brief, 
irbicli  ^?es  me  an  account  of  the  behaviour  of 
tbeie  tnree  gentlemen,  who  have  now  been 
oiled  ajj^inst  the  pristiner  at  the  bar,  had  not 
fkty  themselves  i^iv  en  such  an  instance  of  their 
♦iTD  behaviour  in  lliis  very  court,  a«  is  Dot  lo 
bttccuunted  for.  They  were  all  convinced  of 
ibe  mi>^take  of  Eli/.afaeth  Canning  ;  they  have 
Baw  on  their  oaths  sworn  it ;  they  were  all  con- 
vinced that  her  sitory  was  a  falselioDil,  from  the 
kf^LoQin^  to  the  end ;  and  that  the  poor  wo* 
RnO|  the  ^ypscYt  vrbo  then  stood  in  danger  of 
her  life,  was  as  innocent  of  iv hat  she  then  stood 
•OGuted  of,  as  the  child  unborn ;  they  were 
fretent  in  court  when  this  innocent  woman  was 
•»  imjuti  I  y  accused:  what  would  you  have  ex- 
IHcted  they  would  have  done?  What  common 
mimsnity  and  common  honesty  would  imme- 
iiiltly  have  suggested — would  have  interposed, 
Md  jii  even  ted  the  bhw  which  was  jnst  then 
filling-  upon  the  bead  of  the  innocent.  Did 
liiny  uct  in  sucli  a  manner  ?  No ;  they  acted 
in  1  manner  wiiich  common  humanity  would 
make  ev^ry  one  presume  they  were  incapable 
of  acting  in,  had  not  they  themselves  sworn  lU 
h  iboi  f,  one  whb  engaged  to  dinner,  another 
vu  butler  to  some  great  person,  and  every  one 
bad  some  trilling  excuse  lo  desert  and  forsake 
Ibl  poor  wretch,  when  falling  into  that  deslruc- 
whicb  she  did  nut  deserve,  and  which  I  hey 
ialy  were  capable  of  preventing.  What  con< 
ibiiion  can  be  drawn  fr^im  such  a  behaviour? 
I  will  not  say,  it  necessarily  follows,  that  they 
ire  in  this  particular  instance  prevailed  on  to 
■)t,  what  tbey  otherwise  would  not)  but  thus 
iirlwill  say,  that  1  hey  have  been,  according 
t«t}»eir  own  account,  influenced  by  trifling  and 
ttcimiiderahle  motives  to  desert  those  lirst  prin- 
ciplei  of  honesty  and  justice,  which,  notwith- 
•indmg  all  the  lempiationt  on  earth,  they 
Wifht  ohftinately  to  have  adhered  to. 

Let  us  now  consider  the  other  head  of  evi- 
•m»cc  J  proposed  to  obst^rve  on.  Has  here  been 
■•yetidence  omitti'd,  thnl  mit^ht  serve  to  clear 
ftp  the  slory  ?  Indisputably  there  hun.  Why 
Jjl  Mit  Mary  Scjuirea,  the  daughler,  called  ? 
Wily  i»as  not  Mrs.  Wells  called,  in  order  to 
«bew  you  that  nil  ihiK  was  a  falsitv  :  With  re- 
Pptft  |i>  Marv  H<iuires,  have  you  heard  a  bint 
igiinit  her  i!lniniL*ter  i*  8bc  could  have  spoke 
lerially  to  the  fdct  of  her  mother^s  being  at 
.ber  place.  She  was  at  Brentford;  she 
leto  her  hmth»^ri  giving  an  account  of  her 
fche  would  have  inld  y"u  the  time  when 
ibe  wrote  tbh  letter,  ami  in  what  manner  they 
lent  from  Brentford  to  Enfit^bl ;  I.' ut  she  has 
o  called.  Why  was  not  Lucy  Squires 
dbe  Ha*  mor«  concerned  in  it;  the,  in 


abort,  wa»  the  very  person  that  conld  bavs 
made  this  appear  either  a  falsehood  to  a  de- 
monstration, or  thrown  such  a  damp  u[f00  thit 
whole  prosecution,  that  they  could  never  bav« 
gone  on  with  it.  She  attended  her  mother 
tbrous^h  the  %« hole  route,  and  could  have  con« 
firmed  every  single  circumstance  her  brother 
had  related,  supposing  all  true.  Why  was  $h« 
not  called  'f  I  need  not  mention  the  reason,  it 
is  so  extremely  obvious :  tbe  gentlemen  on  the 
other  side  have  art  and  judgment  enongb  not 
to  call  a  person  to  do  mischief;  they  saw  how 
George  SSquires  was  baffled  and  oiifouuded:  i 
in  short,  gave  no  sort  of  account  whatsoever^ 
when  taken  tbe  least  out  of  tbe  settled  rotite. 
What  are  tbey  afraid  of,  but  that  she  might 
contradict  ber  brother  ?  which  there  secma 
great  reason  to  imagine  must  have  been  the 
consequence  of  producing  her.  Then  why  wee 
not  Wells  produced  f  There  may  he  one  good 
reason  assigned  for  that  i  but  the  same  reason 
ihey  assign  for  not  producing  of  ber,  must 
weigh  greatly  with  every  body  as  a  corrobora- 
tion of  the  innocence  of  tbe  prisoner^  and  tbe 
truth  of  her  account. 

It  may  be  said,  that  she  was  a  woman  con- 
victed; but  she  is  now  pardoned,  and  she  is  n 
witness  in  point  of  law.  But  then  they  will 
any,  she  is  a  woman  of  bad  cUaracier,  and  no 
credit  can  be  given  to  her  evidence  :  when  thej 
say  thai,  ibey  admit  her  a  woman  capable  of 
doing  the  act  complained  of,  or  receivmg  per- 
sons who  could  do  it.  They  were  apprehen* 
sive  this  would  cut  lj<}th  ways:  for  had  nh% 
been  called,  and  the  prisoner  could  have  con* 
tradicted  her  in  any  circumstance  of  the  story, 
E  am  sure  you  would  not  only  have  been  in- 
duced to  have  disbelievetl  what  she  had  said, 
but  to  have  believed  her  guiUy  ;  and  if  you  did 
believe  that,  it  would  be  veryuard  to  direct  the 
liue  l»etween  the  innocence  or  guilt  of  her  and 
the  gy psey  ;  and  you  would  have  been  able  to 
have  distinguished  why  one  attempts  a  defence, 
and  the  other  not;  because  one  is  always  fixed 
to  a  spot,  and  could  never  have  set  up  this 
defence ;  the  other  is  a  vagabond,  and  it  ever 
will  lie  difficult  to  fix  her  habitation  or  residence 
for  one  day  together. 

Gentlemen,  these  are  all  the  observatJonK 
that  occur  to  me  on  the  prosecutor^s  own  evi- 
dence, except  one  particular  circumstance  witli 
respect  to  tbe  bay  said  to  be  in  the  chamber. 
You  have  heard  it  said,  there  was  a  great 
^oantiiy  of  hay ;  and  they  woutd  have  you 
believe  this  hay  was  alt  a  feigned  story,  fouud- 
ed  on  the  representation  of  those  who  went 
down  l»efore,  in  order  to  prevent  the  prisoner*! 
giving  a  false  account.  But  what  does  Adam* 
son  say  when  be  came  back?  Says  he,  she 
says  there  is  hny  in  the  room,  and  the  de- 
aciiptioo  is  right.  Will  you^  upon  your  oatbt, 
!^ay,  Adam^ou  had  told  her  there  was  btjf 
in  the  room,  and  that  she  had  never  men* 
tinned  hay  lo  any  one  before?  No.  The 
meaning  of  that  part  fif  the  evidence  is  plain; 
tbe  girl  had  told  other  people  there  wan  bay 
m  the  rooB>»  tbutigh  the  bad  not  tiilJ  it  t# 


I 


46S] 


27  GEORGE  II. 


Trial  ofEliuOah  Canmngt 


[4S 


Adamaon  before ;  and  we  shall  pro? e  the  dc- 
dared  no,  io  the  ter^  first  descriptioD  she 
gave  of  the  room.  But  Mr.  Adamson  hiinself 
will  be  called  in  behalf  of  the  prisoner,  aod  be 
will  swear  he  never  dictated  to  her,  or  gave 
her  the  least  iotimation  to  say  there  was,  or 
was  DOt|  hny  in  the  ruoin.  And  sa  there  was  bay 
in  the  room,  beyond  all  doubt,  1  shall  only  ask 
Uiis  question,  How  came  this  description  of  the 
room  (which  is  a  very  extraordinary  one)  to 
mis wer,  if  the  prisoner  never  hail  been  there,- 
aod  all  her  story  waa  an  utter  falsity?  But, 
gentienien,  there  is  one  aiyument  arismg  from 
the  prisoner's  evidence,  that  to  me,  seems  to- 
tally unanswerable:  I  myself  have  heard  it 
meetioned ;  and  it  hath  bieeD  artfully,  though 
BOW  it  appears  falsely,  insinuated  to  tbousaodsi 
in  order  to  pre)udii*e  them  against  the  priaoner, 
end  to  leave  no  doubt  but  she  must  be  con- 
victed, that  the  proaecutor  would  actually  shew 
where  she  was  st  that  time.  1  know  the  gen- 
tleman who  related  it  And  I  call  on  the  pro- 
aecutor now  to  account  but  for  any  four  hours 
out  of  twenty-eight  days,  and  1  shall  be  con- 
vinced all  is  a  lalsity ;  and  thatshe  is  not  only 
fp«atly  deceived,  hut  wilAilly  peijured.  Has 
It  been  attempted  to  be  proved  ?  1  beg  leave  to 
My  it  has  not.  What  weight  then  ought  this 
circuoistance  to  have  with  you  ?  It  ougiit  to 
have  more  or  less,  according  to  the  time  or  op- 
portunity that  there  hath  ^n  to  prove  where 
abe  was.  Had  the  lact  happened  but  a  week 
a|[0,  1  must  confess,  it  might  with  truih  be 
•aid,  there  iras  neither  time  nor  opportunity  to 
make  the  inquiry.  But  let  us  consider  the 
carenmstanoea  of  this  case ;  the  fact  committed 
a  year  and  a  half  ago— talked  of  before  it 
came  to  trial — from  the  time  of  trial  to  this 
time ;  1  will  venture  to  say  there  never  was  a 
&ct  that  hath  undergone  greater  or  more  par- 
ticular inquiry.  There  have  been  accouuis 
published,  wliVch  have  gone  all  over  the  king- 
dom ;  and,  1  believe,  I  may  with  truth  say,  all 
over  Kuro|ie.  1  do  not  believe  there  is  au  in- 
dividual in  this  gi-eat  city  that  has  not  heard  of  had  known  her  Tor  a  long  time.  With 
this  alfair,  nor  hsth  a  company  met  for  one  >  to  the  first,  they  asked  her,  how  tliey  shoe 


London,  and  not  by  one  |ierson  only,  or  by  pa 
sons  who  seemed  to  take  no  notice  of  her;  bu 
we  have  in  our  briefs  no  less  than  three,  wh 
saw  her  go  by  dressed  iu  Uiat  very  particuli 
manner  in  which  she  came  home,  tracing  hi 
from  that  very  place  towards  LondkHi.  Ckie  \ 
tlie  men,  at  one  of  the  turnpikes,  where  sbe  ei 
quired  her  way,  went  farther  than  merely  di 
scribing  her  dress;  he  had  an  opportunity,! 
asking  her  questions,  ef  seeing  her  face ;  ai 
he  will  tell  you,  by  the  observations  be  msi 
then,  and  by  seeing  her  soon  after,  be  veril 
believe*  her  lo  be  the  same  person. 

When  sbe  came  home,  she  gave  the  aeoee 
yo'a  have  heard :  but  the  manner  in  which  ri 
gave  it,  is  very  well  wortli  your  coosideratiM 
it  was  not  given  in  a  wanton  manner,  not  wi 
that  eagerness,  or  in  that  hurry  en  inpsrti 
would  have  told  it,  in  order  to  run  thronshlh 
chain  of  her  story,  and  tell  it  as  aoon  as  A 
could,  fearing  she  should  forget  it  How  im 
she  tell  it?  More  ss  if  she  was  dcsira 
of  concealing,  than  of  artfully  publishing 
You  fiml  her  at  her  first  arrival  so  weak,  lb 
she  could  not  run  into  a  long  detail ;  and  wki 
she  grew  more  able  to  relate  it,  it  came  eat  onJ 
by  answers  to  questions  asked  from  time  i 
time  ;  in  which  she  answered  no  faftber  thi 
the  question  absalutely  required,  ur  obliged  he 
Is  that  like  a  formed  kcheme  or  story  ? 
seems  to  me  totally  otherit  iiie.  But  wiMt  w 
you  say,  when  this  same  Mary  Squiies,  wh 
as  Mr.  Davy  hath  urged,  caunot  be  mislaki 
for  another,  who  has  that  remarkable  stan 
upon  her  c«>untenauce,  as  he  hath  expressed  i 
is  proveil  by  twenty- live  or  thirty  wiincsa 
(mauy  of  whom  are  persons  of  figure  and  fci 
tune)  to  be  at  Knfield  Wash  on  the  16th  or  171 
of  December?  Was  slie  only  seen  to  go  h 
as  a  traveller  ?  No,  that  is  not  tlie  caae ;  mss 
conversed  with  her;  she  talked  of  losiog 
little  horse,  and  was  lamenting  her  losa ;  sk 
enquired  after  this  hord!  of  several ;  of  son 
who  were  strangers  to  her,  and  of  others  tbi 


know  her  horse?   she  not  only  ilescribed  bis 

but  told  them  that  he  had  a  lock  on  with  b« 

name:  they  then  asked,  what  her  nainewsi 

.  i»he  io!;i  ihem  .Mary  Squires.  We  shall  |irod« 

been  sugirested,  I  mesn  wliere  she  uas,  it  i  sume  farmers,  io  i«liose  barus  she  hath  lain  f 

j  throe  or  four  days  tc^gether,  to  iileniifv  her  pc 
'  son ;  and  no  one  can  suppose  but  tiist  the 
I  wit:ios»t.s  are  as  Itttie  liable  to  nii>take!<,  sssr 
'  pnMluced  on  liehait'  <ii  the  prosecution.     Ai 


single  evening,  where  this  was  not  a  suiiject- 
matter  of  conversation.  Then  %vas  there  not 
time  or  opimrtmiiiv  to  inquire  into  it?  There 
QBTtaioly  was ;  ami  unless  they  c;ni  sliew  what 

is  one  of  the  strongest  an;uiiients  in  the  woilil 
in  favour  of  tlie  pn^'oner.  Thus  then  it  stands 
on  the  evidence  on  behalf  of  the  prosecution. 

With  res|)ect  to  our  evitUnce,  1  shall  sera  in 
take  notice,  that,  as  to  the  tacts  thtMnsflws, 
one  witness  hath  iiosisivHy  sworn  lu  i hem  ;  1 
mean,  the  pri«ouer.  Vmi  ranmu  now  txoect 
ether  witnesses  to  swear  to  ciuiiinii  Ikt*s,  u!i  lo 
them ;  there  ne«er  was  hut  imu*,  an>l  that  ihe 
prisoner  IS  now  di*|iiired  of:  thfielure  sll  ^e 
can  do,  will  he  to  supfiart  her  by  circunisUHoea 
ami  probabiJiiy.  And,  in  the'fim  place,  «»e 
ahall  stiew  ^*uii  the  uimest  iirobsbihiy  for  her 
going  there,  fur  twe  reasons :  Because  slie  is 
taoerf  in  ike  rand  fram  ikencr  (aiid  not  a  tittle 
tlF  mkmmm  m§  tkm  wm  farther)  lawnnie 


thi$  uhiioi-vati'iii  \  ou  wilt  carry  \^  ith  ymi  iturii 
the  ttholc  cn:irse  ot  our  exuiniuatton.  than 
shall  ua!  pn».(iiceoiie  witness,  who  ilnili  imtli 
within  t«>.'i  milt*:*  of  l^inlon.  nor  ooethatt 
prosecuior  hath  not  luii^  known  ot ;  they  a 
he  rc4;arded  iw  not.  Id  iiniportinu  as  ihtir  ch 
ncier^  do.  or  do  niU.  ^ijful  im|ii'aclicd  ;  a 
when  1  haiesaid  this.  1  xUty  the  prosrculer 
iinpcacli  the  chiirecier  oi  any  one  wilac 
Willi  res|wct  to  ilie  wi  messes  on  behalf 
the  |irtf»rcuiion,  it  nt  abMiluieli  iuipeaii 
to   luMw    ikeir  characters,  or,  'ai 


465] 


Jar  Wilfid  and  Corruji  Ptrjury. 


A.  D.  1754. 


[460 


prore  tbem  ;  beoame  one  is  picked  op  at  one 
pUer,  and  another  at  another ;  and  the  pri- 
aoaer  could  nerer  know,  before  she  heard  tiieir 
tMimonyy  who  was  to  be  examined  asrainst  her. 
SupfMsiDg  ^ou  beliefe,  from  the  girl's  account, 
from  the  witneases  we  shall  produce,  that  Mary 
Squires  was  at  Enfield,  there  is  an  end  of  all  at- 
leaptsofthe  defence  that  was  set  up;  and  1  dare 


one,  asked,  Could  any  penion  get  out  of  the 
window  f  You  observe,  White  told  you,  be- 
cause he  was  forced  so  to  do,  well  knowing 
that  Adamson  would  say  so,  that  he  perceived 
some  liuie,  or  lath  and  plaister,  broke  from  the 
wall,  as  if  somebody  had  got  out ;  should  that 
be  the  case,  it  is  the  strongest  circuii>Ktanca 
in  the  world.     One  more  I  must  mention  :  an 


sij^oa  will  believe  it,  when  we  prove  to  you  |  account  was  given  from  the  first  instant,  that 
(voich  we  ahall  certainly  do)  from  gentlemen 


I     Mdst 


ikist  went  down  with  the  prisoner  to  Entield 
Wash,  who  had  no  reason  to  think  mother 
Vfeila's  was  the  place,  any  otherwise  than  they 
fere  led  to  inugine  it  the  place,  from  the  ac- 
CMot  she  had  given  of  it ;   and,  however  Mr. 
iyoa  aod  Mr.  Adamson  may  differ  in  point  of 
■MDJoo,  yet  they  must  and  will  tell  you,  that 
IM  place  answered,  as  far  as  it  could  be  ex- 
1,  to  the  description  that  was  given  by  the 
We  are  not  to  catch  at  nice  and  mi- 
dicumstances,   with  respect  to  the  de- 
of  the  room :   if  you  were  to  make 
mnla  of  judging  of  the  truth  of  the  story, 
Ucr  htw  the  people  that  were  in  the  house 
wmjm  their  descriptions.    There  were  also 
IMW^n-tiles,  Judith  Natns  says,  in  the  room: 
tirf  any  body  else  mention  them  but  herself  P 
Obe  oHUi  says,  there  was  a  tub  in  the  room  : 
U  aoy  bod^  else  mention  it  hut  him  ?    You 
•hecfrey  it  is  im possible  to  be  conceived,  that 
ikm  poor  girl,  who  perhaps  might  be,  and  in- 
deed there  is  the  greatest  reason  in  the  world 
ti  be  certain,  was  in  a  fright,  should  be  so  ver^ 
■iaule  aod  exact  with  respect  to  every  parti- 
olsr  in  the  room.     But  then  it  is  said,  sup- 
_  the  prisoner  not  contradicted  in  her  ao- 
it  in  this  resjiect,  yet  it  is  plain  her  mother 
she  contradict  each  other ;  for  the  mother 
IMS  observed  to  cry  out,  when  her  daughter 
Mamed,  that  she  was  naked.    Mrs.  Mayle 
Wgiveo  you  an  account  of  it,  and  great  stress 
ks  been  laid  ou  this  observation :    but  if  we 
CiMder  this  expression  coolly,  is  there  any 
■ligbt  io  the  world  to  be  laid  upon  the  words 
if  a  pareot,  who  at  that  time  was  inflamed 
viA  mdignation  that  her  child  had  been  used 
if  la  it  strange  or  remarkable,  that  this  mo« 
fter  should  aggravate  things?    Besides,  the 
Vivd  *  naked'  was  in  this  particular  a  compara- 
tift,  not  a  positive  term ;   and  she  might  cer- 
Wjf  be  called  naked,  according  to  the  pri- 
MMr's  own  account,  comparatively  speaking, 
liwbatshe  was  when  her  mother  saw  her  last. 
But  supposing  this  a  feigned  story,  how  hap- 
ptted  it,  that  any  one  description  or  circum- 
NMee,  mentioned  by  the  prisoner,  should  coin- 
Piie?    And  there  are  some  circumstances,  all 
MM  agree,  which  amazingly  corres|M)nd.  How 
cune  the  chimney  in  the  corner  of  the  room  ? 
Bow  came  this  pitcher  to  he  in  the  house  ?     h 
■ikes  no  difference,  whether  it  was  in  the  room 
IT  aot.     Ho IV  came  it  to  be  there  at  all,  and  so 
BMtly  to  answer  what  she  ilescribed  the  first 
feaneot  ahe  came  home  ?  We  shall  shew  you, 
If  persona  that  went  down,  other  circum- 
Mom,  altogether  as  surprising,  that  confirm- 
«i  bar  acooaut.    The  gentiemeD,  u  if  aware  of 
VOL-XiX. 


her  ear  was  bloody.  A  man,  who  lived  over 
the  way,  came  and  found  eitlier  a  piece  of  iron, 
or  a  bid  of  lead,  under  that  window,  all  bloody, 
and  the  handkerchief  produced  here  is  stained 
with  blood  ;  and,  if  that  circumstance  should 
be  proved,  it  is  a  very  strong  one,  and  such  aa 
requires  the  utmost  consideration.  There  ia 
but  one  observation  or  two  I  shall  meniion, 
and  that  is  with  respect  to  what  has  been  called 
the  hinge,  or  sort  of  criterion,  or  touch- stone, 
upon  which  you  are  to  try  this  narration ;  and 
that  is  the  letter.  Mr.  Morton  has  made  some 
strong  observations  on  it;  aod  extremely 
strange  it  is,  that  this  letter  should  not  appear 
dated  in  such  a  manner,  as  to  determine  the 
truth  when  it  was  wrote,  or  sent  by  the 
post.  Was  this  date  (for  you  will  see  the  letler) 
put  in  any  place  where,  either  by  the  opening 
the  letter,  or  by  the  wax  coming  near  it,  it  might 
be  possibly  injured,  there  would  be  an  end  of 
any  observations  that  could  be  made  on  the  oc- 
casion ;  because  you  must  know,  who  receive 
letters  upon  business,  that  it  is  impossible  to 
unfold  a  letter  sometimes  without  tearing  a  very 
material  part  of  it.  But  how  is  this  ?  The 
date  is  in  the  very  corner  of  the  letter,  that 
corner  which  was  sheltered  by  the  folding  of 
it,  and  umst  have  been  the  last  that  could  have 
received  any  injury ;  it  was  not  near  the  waic 
or  seal,  or  liable  to  any  injury  on  that  account ; 
and  altliongli  the  outside  wasall  dusty,  this  part 
being  folded  in  was  as  clean  as  possible  ;  how, 
therefore,  this  part  of  the  letter  in  particular 
came  to  be  torn  off,  is  a  matter  beyond  my  com- 
prehension, and,  1  am  certain,  \oii  will  give 
this  observation  the  weight  it  deserves. 

Then  thus  it  stands  u|ion  the  evidence  on 
both  sides:  and  gentlemen>  1  shall  now  only 
mention  to  you  again,  that  upon  trials  for  per- 
jury* we  are  not  to  convict  a  person  merely 
upon  conjecture,  improbability,  or  argument. 
1  told  you  before,  and  under  the  direction  of  the 
Court'l  shall  repeat,  that  every  person's  oath, 
though  perjury  is  assigned  in  it,  is  to  be  consi- 
dered as  one  witness :  if  a  man  forswears  hino- 
self  in  an  answer  in  chancery,  one  witness  only 
contradicting  it  is  of  no  signification,  as  both  are 
to  have  f  qiial  credit :  she  then  is  the  only  per- 
son that  speaks  vi'  the  fact  of  this  transaction, 
and  that  is  not  controverted  but  by  circum- 
stances and  artrumeitts  :  and  if  any  witnesa 
could  have  bti-n  produced,  or  any  evidence 
given,  thai  could  have  cleared  up,  and  expluiueil 
this  intricate  affair  (for  so  L  will  call  it,  even 
upon  their  evidence  given),  and  tlie  prosecu- 
tor hath  omitted  so  to  do,  which  to  me  seema 
plain  to  a  demonstration,  you  will  then  pre- 
sume in  favour  of  iDOOcen^ei  u  far  as  it  is  pos- 

SH 


467] 


S7  GEORGE  U. 


Trial  tfEUxahdk  Cammg^ 


[46B 


tible,  and  especially  agaioft  those  persons  by 
fvhoin  the  whole  mii^ht  hare  been  explained ; 
and  if  you  have  the  least  doubt  remainin^^, 
ivhether  the  person  is  innocent  or  not,  charity 
and  Christianity  will  induce  you  to  uke  the 
favourable  side ;  the  consenuence  of  which 
will  be,  that  the  defendant  will  be  acquitte<f. 

Mr.  Williams.  We  shall  lay  ow  evidence 
before  3^on,  and  begin  first  with  Mr.  Lyon,  the 
master  of  this  girl. 

Edward  Lyon  sworn. 

E.  Lyon,  Elisabeth  Canning  had  been  my 
iervant  alH>ut  ten  weeks :  on  the  1st  of  Ja- 
nuary, 1753,  my  wife  gave  her  liberty  to  go 
to  see  her  uncle,  who  lived  at  Saltpetre- Bank. 

Mr.  Williams,  Had  you  known  her  an^  time 
before  ?— £.  Lyon,  I  nave  known  her  sixteen 
years  before  she  was  my  servant. 

Pray,  how  has  she  behaved  herself  ?->Very 
well :  1  beliere  her  to  be  a  very  honest  |)erson. 
She  not  coming  home  that  night,  we  enquired 
about,  and  sent  to  her  mother  several  times, 
but  HpRrd  nothing  of  her. 

Whom  did  yoa  send  f -— I  do  not  recoMect  any 
particular  person. 

Had  she  ever  been  guilty  of  such  neglect 
before  in  not  coming  home? — No,  not  stall. 
The  first  time  I  saw  her  afterwards  was  on 
the  31st  dsy  of  the  said  month  before  Mr.  Alder- 
man Cbitty  ;  she  was  there,  in  order  to  take  np 
a  person  that  she  said  had  used  her  ill  at  Enfield- 
Wash.  I  being  a  little  thick  of  bearing,  can- 
not give  much  account  of  what  passed  before 
the  alderman ;  but  there  was  a  warrant  granted, 
and  several  of  our  neighbours  went  down  to 
Enfield- Wash  the  next  morning  on  horseback ; 
I  went  in  a  coach  with  Mr.  Nash,  Mr.  Hague, 
and  Mr.  Aldridge  ;  the  prisoner  and  her  mother 
went  in  a  chaise. 

Did  she  give  you  any  description  of  the 
room  she  had  been  confined  in  ? — Not  to  me, 
for  I  was  not  with  her. 

Give  an  account  of  what  passed  between 
you  and  a  person  that  met  you  on  the  road. 
— Mr.  Wintlebury  came  riding  on  horse - 
hack,  and  said  they  had  taken  a  number  of  i 
people  in  Mrs.  Wells's  house.  When  we  , 
came  there;  1  saw  about  ten  persons,  one 
man  and  the  rest  women,  sitting  round  the 
fire,  in  what  they  call  the  parlour.  Alter  I 
had  been  there  some  tirne,  Elizabeth  Can- 
ning came,  and  was  brought  in  and  set  upon 
the  dresser :  I  went  to  her,  and  said.  Bet, 
will  you  take  any  thing  to  refresh  you  ?  She 
said,  No.  1  said.  Do  not  be  daunted,  for  you 
have  friends  about  you,  and,  on  the  other  hand, 
be  careful,  and  challenge  nol>ody  in  this  house 
without  you  are  positive  of  them.  Sir,  said 
she,  1  will  not.  Then,  said  I,  you  shall  see 
them.  Accordingly  she  was  taicen  from  the 
dresser,  and  led  by  two  into  the  room.  She 
saw  Mrs.  Wells  first,  and  said,  she  had  nothing 
to  say  to  her ;  and  upon  seeing  Mrs.  Squires, 
•he  said,  That  is  the  woman  that  cut  my 
ftaysoif. 


Did  yoo  see  Squires  then?— I  did,  Toy 
plain. 

Was  she  sitting  or  standing  P— She  wa 
sitting  first,  but  she  got  up  out  oifber  chair. 

When  Elizabeth  Cannmg  fixed  open  her, 
was  she  sitting  or  standing  P — Squires  was  JMt 
got  out  as  she  chaiiged  her,  and  onme  towm 
her. 

Attend  to  the  question :  was  she  sittmg  sr 
standing  np? — ^lljeroom  was  full  of  neojjle: 
I  cannot  justly  say,  whether  it  was  the  tim 
ahe  was  getting  out,  or  got  oat :  several  pesfli 
got  nearer  than  I  did. 

Have  you  any  reason  to  think  EliadMi 
Csnuing  saw  her  face,  before  she  fixed  w§m 
her  i>erBon  ? — I  believe  she  saw  her  faee. 

Why  do  you  think  so?— I  think  sbt.iMll 
hardly  charge  her  without  the  sight  if  ks 
fiice  ;  I  have  no  other  reason. 

When  Mary  Sf|uire8  was  charged  with  Wag 
the  person,  whst  was  done  ^— l^e  cune  «f  to 
her,  and  said,  1  hope  you  will  not  anvev  ay 
life  away,  for  I  never  saw  you.  Then  Bs^f 
Canning  was  carried  into  the  kitchen. 

Did  you  hear  Mary  Squires  any  when  At 
was  at  the  time  ?-*I  did  not  bear  any  thing  rf 
that. 

Did  you  hear  Elizabeth  Canning,  or  Hf 
body  else,  say  what  day  the  robbery  wm  cbA^ 
mitied  ?— No,  I  did  not  hear  any  body  mj  wf 
thing  of  it. 

Did  you  see  George  Squires  there  P^-Yo^  I 
did ;  he  was  in  the  room  before  Canning  CHti 
in  ;  he  pulleil  ofi"  his  hat  to  roe,  u  soon  if'l 
came  into  the  room :  I  said  to  him,  How  em 
you  in  this  house  ?  He  said,  I  am  a  trafdM 
and  came  here  to  lodge.  I  said,  CooM yoniil 
find  a  house  of  better  character  P  That,  hiV* 
erer,  you  must  give  a  farther  account  of  jflff^ 
self.    Then  be  sat  down. 

When  Canning  came  in,  was  she 


my  stays  'were^cut  oflT:  then  she  saw  ViM 
Hall,  and  said  the  same  of  her ;  but  they  il 
nothing  to  her.  After  that  George  Sqnim 
was  brought  forward  to  her :  said  she,  iM  < 
man  looks  very  mnch  like  the  man  that  roM 
me  in  Moorficlds,  but  I  will  not  swear  to  kitf . 
He  had  pulled  his  great  coat  off  in  the  booMbl 
think  before  she  came :  he  had  it  on  bsM 
justice  Tashmaker  ;  then  she  said,  ahe  vtfi^ 
believed  he  was  the  man,  and  that  was  tbecw  < 
he  had  on,  which  he  put  her  gown 
when  she  was  robbed  in  MoorfieUls ;  bat  M 
would  not  swear  to  him. 

Did  you  at  any  time  recehre  a  letter  fiss 
Gawen  Nash  ?— I  did. 

Did  he  at  coming  home  express  any  kind* 
doubt  about  this  afiair  ? — No :  we  all  caiii 
home  together  in  the  coach  ;  he  seemed  fsij 
well  satisfied ;  I  could  see  but  very  little  otkP 
wise. 

Did  he  say  any  thing  at  all,  whether  be  1^ 
satisfied  or  not  f — 1  cannot  say  but  be  dU  i|| 
•omething,  but  I  cannot  recidlect  what :  I  cii 


f9] 


for  Wilfid  and  Corrupt  Perjury* 


A-  D-  175%. 


[470 


collect  i^fr.  Hfi£riie  saicli  he  dirl  not  see  any 
i.me  in  tbechimney^  itor  |iictLires  ju  the  frunl 

Ki^.     I    said,  I   never  lienrd  ttiat  mejilbneil, 
^    ihe^e  ihitiifs  are  moveEilileft,  ami   mtiy  be 
»v«d:  we  bait  a  httte  talk  ;  aher  that  ne'  bail 
^beef-cteak  at  the  Three  Crowns  at  ^jttwmgklD^ 
•nd    were  y^oud  frierida. 

I>iil  Mr.  Hngue  say  any  tUmjr  ebe  ? — ^No,  he 
suci  nothing  else;  Ihere  was  nu  malier  nf  tlouht 
Wtweeo  thttt  Ume  anil  tbe  Irial  ol  Mary  Squii-i-s. 
Vr.  Nash  wag  once  at  my  house  afterwardfl, 
>  ttd  as  he  was  going  out  oV  the  door^  lie  iiitite 
we  of  a   very  odd  expreisiiion ;    he  said,  Air. 
Lyon,  I  hope  God  A(mi|^hly  \^'\\\  destroy  thai 
OioileJ  that   he  made  thai  iace  by,  and   tierer 
make  anutlier  by  it ;    a  very  odd  t^xpresstoD,  I 
remember  it  rery  well,  nieaDiog  tbe  gypsey« 

Cross  exaoamed  by  Mr.  Davy, 

Were  yoo  at  tbe  Four- Kings  tast  U>d nee- 
ds v  ?— ?^o,  Str. 

1  would  he  glad  to  know  where  you  live  f — 
I  life  at  Alderman  bury. 

What  is  your  busiiiesa?— I  am  a  carpenter. 

How  loogf  had  Elizabeth  Canning  hved  with 
yoQ  ?-<-^be  had  lived  with  iii«  about  ten 
weeks. 

Had  you  any  kno^vled^e  of  her  before  ?—  1 
kttew  her  in  Mr,  \Vimlebtiry'»9ervtce»  ll>elieve, 
near  upon  two  years.  1  bad  before  that  em- 
ployed her  father. 

When  was  ibe  last  time  you  saw  her  before 
the  39th  of  January  ? — I  saw  ber  in  the  moni- 
ijig  before  8he  wenlout,  on  the  Itrt  of  January, 

Caa  you  tell,  wbeiher  tbe  door  from  the 
kitchen  to  the  hay  •loft  was  open  or  i^hut,  when 
Elizabeth  Canning  sal  iip(»n  the  dre»»er? — I 
cannot  say  tliat,  /or  the  room  was  lull  c4' 
people. 

Was  Ibe  motive  of  your  goioft  donn  (besidet 
the  taking  the  people  up)  to  make  as  tosiny  ob> 
ffttiooa  as  vou  could  f — No  doubt  of  that,  8ir. 

TlieD  why  did  you  not  observe  towards 
lihat  part  of  the  kitchen  ber  face  was  directeil, 
wken  she  sat  upuo  ibe  dresiierp — I  must  have 
tkoTcd  people  down  if  I  had,  for  the  rooiB  was 
full  of  people. 

Were  you  with  her  in  the  parlour  ?— I  iraa 
jofit  at,  or  hardly  in  the  parlour-door. 

How  many  people  were  there  brCween  you 

'  ^d  Mary  Squirfs  ?^-lt  is  impossible  1  should 

*«<J  J    there  might  be  five  or  six  between  me 

^d  the  people  in  a  circk  round  tbe  lire ;    the 

i*»«*lour  WAS  almost  lull  of  people. 

^  H'hen  they  were  all  m  tbe  room,  and  Can- 

^*th^  also  there,  and  you  at  a  distance,  whether 

y**U  could  see  Mary  St|uire>i  sitting  by  the  fire  ? 

""^No  otherwise  than  tbis^  in  a  clilt  between 

^'^^  peopled  shoulders, 

I)id  you  see  her  sitting  ? — )  did  ;  this  was 
^^  in  a  very  little  timt^  before  Canning  charged 
"^  with  robbing  her. 

How  fdr  is  tht*  chimney  from  tbe  door  ? — It 
*%V  be  ten  or  elereti  feet. 

Did  yr>u  see  her  after  Canning  was  iu  the 
tMm  ? — i  did. 

tUd  jcu  tecB  her  bcftnref*^!  bad ;  she  was 


sitting  smoking  a  short  pipe  by  the  fire,  hefure 
Catjuing  came  do^  n. 

Was  her  face  ot  hack  towards  you  ?-^he 
was  Kide-vvaysT  partly  tu  me. 

Did  you  fiee  her  liitting  on  a  chuir,  after  i 
Canning  was  iu  the  room  f«^No,  I  did  nut,  tiH  i 
after  ^he  got  up  ;  bui  iaw  her  sitting  hy  th^l 
fire,  between  the  peciple,  just  at  Csnoing^i' 
coming  mio  tbe  room. 

flow  long  was  Canniug  id  the  room  before 
»he  charged  her  ?— She  charged  her  iu  a  very 
little  lime. 

What  did  the  firypsey  do  ufion  that? — She 
took   her  hat  off,  and  opened  the  eU)Ut  wliicb  I 
was  upon  her  head  ;   her  tace  was  almost  hid 
with  them  b«>fore. 

Could  you   see  the  side  of  her  head   when 
you   was  it  the  door  ? — Not  then,  but  befort  \ 
and  after  1  did. 

How  far  was  Elixabelh  Caonifig  from  yon?  ' 
— She  was  with  iu  alwjut  three  or  four  teet  of  J 
me. 

Was  ibe  in  a  direct  line  between  you  and] 
S<p»ircs ?^No  J    she  was  partly  in   the  central 
in   (he  half-moon,  and  Hquires  was  upon  a 
angle. 

Was  Canning  at  your  iightor  left-haftd  ?- 
She  was  more  to  uiy  left  hand. 

Have  you  any  other  reason  for  belter*  j 
iog  Canning  saw  the  face  of  iVtary  K^^uirefla  I 
than  Iroin  your  good  opinion  of  her  ? — Ntj 
otherwise. 

What  was  the  first  thing  Sqinri?s  did  or  said,i 
after  she  t.je  frinu  ber  scat,  to  convince  Can*! 
tiing  thiit  shi'  wns  not  ihe  (ier»nn  who  robbed  I 
her? — No  otlierwise  than  by  telling  her ^  as  l[ 
have  told  you. 

Did  she  desire  Canning  to  take  notice  of  I 
her  face  P — I  did  not  hear  ;  I  am  thick  of  ht'ap*! 
iiig  at  some  times,,  atid  I  nas  theii ;  I  am  mort| 
in  winter  than  at  other  limes. 

Dill  you  hear  Canning  say  at  what  time  siia  j 
had  btien  robbed  ? — No,  [  did  oat. 

liid  M^ry  Squires  continue  Bpeaking  af^ef 
the  words  you  before  mentioned  ? — Very  liitle  |  j 
the  gtri  was  moved  away  presently  afterward!^  | 
ao  that  they  were  in   that  position  but  a  very 
litt  e  tim^,  " 

Did  Mr,  Hague*  Mr  Nash,  and  xMr.  Aldridge, 
and  you,    return  home  together  alt«' ihis?— ^1 
We  did. 

What  wos  your  discourse  coming  liome?-^] 
We  had  very  little  talk  in  the  coiii'li  abmii  it. 

Did  you  return  good  friends  ?*- We  did,  and  I 
wei^  very  jocular,  aa  we  were  wheu  we  went 
down, 

Did  you  hear  or  nnderstand  any  douirt  they 
hsd  lunching  this  jilfuir  P — No,  I  dol  not. 

Was  eitlier  of  Itif  m  dissatisfieit  at  the  aO"! 
eouni  she  had  given^  and  at  her  behavinuf  1 
when  in  the  house? — No,  none  at  ull  j  »e  werC  J 
as  airrrruble  as  we  were  when  we  went  down. 

Recollect  yourself,   aod   seriously    answer,  ] 
wheihtf  you  had  any  conversation  with  ihesc 
genttemen  about  Canning's  mother  drca mi ng  a 
drrjim? — I  never  did,  nor  never  roeutioned 
any  lucb  thing* 


471] 


Iff  geouct:  11. 


Did  you  ever  say  auy  thing  about  lier  mo- 
lher*s  tfoinj;  U*  the  conjumr? — Goinsr  to  a  coo- 
juror  h  ti  been  mentioned,  but  nui  by  me. 

Ufd  rbe  mulber  lell  you,  !i*e  day^  before  hpr 
c1aii|^bU'r*!i  comtnLf  honie,  that  a  conjuror  kmil 
told  her  she  was  iu  the  hands  of  an  old  \%oiiian. 
and  would  come  home  the  next  week? — Stie 
}md  tuld  olher  pei>ji1e,  as  1  heard,  hut  not  oae; 
I  never  heanl  it  rrtmi  ber  uiuuih ;  I  Defer 
Conver:»ed  vriih  her  abuut  it. 

When  did  yovi  hear  it? — 1  don 'I  know. 

When  did  sh*;  return?— On  the  'iOi^i  tif  Ja- 
nuary. 

Ha^veyou  eieriJilked  with  her,  since  her  re- 
tutu  home,  of  any  ihlni^  that  pnased  during  llie 
lime  of  her  absence?— I  can  say  aolbini^  in 
partK-nUr, 

If  \oii  had  any  conversation  viith  her  about 
it,  it  luuist  be  paiticniar. —  1  know  nothinjpr  hut 
How  do  you  do,  Bi*tly  ?  But  as  to  relaiiug' 
how  she  waa  uned,  or  uny  thio)^  like  it,  1  can* 
mn  telt  any  thii^t^  m  partjcutar. 

Thpu  what  do  you  remember  U|mn  the 
whole? — 1  liJiTp  cd'ten  seen  her  and  tiilked  with 
her  *uice,  luit  t'lmnnl  reint'mber  any  particular 
part,  ur  wdids,  Ibat  bave  been  relaled. 

Whether  you  expre^aeil  la  her  any  surprize 
coneernini;  iIjp  acrouutshe  gave  to  you  of  her 
ill  uiai;f^e? — She  has  never  given  me  ao  oc- 
cotint  in  a  pMrticular  manner ;  il  wus  mlvrays 
to  other  persons. 

Had  ymi  any  talk  with  her,  fiincc  her  return^ 
relating'  to  a  cunninir  man  ?< — No,  none  at  all^ 
iior  don't  know  she  has  beard  it;  one  thing,  1 
think,  I  recoiled  ;  at  Mr.  Mar^thuirs  houBe  I 
YfAs  wilh  btfr,  and  asked  her  thus:  Bet,  if  you 
know  any  tiling  of  this  alfairi  that  you  helieve 
you  are  mistnken  in,  or  such  like,  I  desire  you 
will  \vl  me  knim  il ;  don^tdeceife  us  ujjon  any 
account.  Nir,  diiid  she,  I  have  said  noibtug^ 
but  what  in  rurally  true. 

Huve  ncm  had  any  dispute  or  fallinif-out 
\iilh  >lr.  HiivTiiP,  Mr,  Aldridgc,  or  Mr.  Nash, 
on  aocounl  of  this  atfair? — No,  not  on  any  ae 
count.  .S^ime  few  words,  that  I  related,  were 
concerning  the  ^r^te  and  pictures  over  the 
chiiuney;  Mr.  Ha^^ue  was  vaying^ there  would 
be  some  marks  left  uliere  Ibtfy  bad  Itung. 

Were  you  fbimerly  very  intimate  with 
Ibeoi? — 1  wait  with  Mr.  Nash  anil  Air.  Al- 
rid|;e,  but  not  with  Air.  Hagne.  I  have  dune 
biiBitiees  as  a  carpentf  r  for  about  sixieen  years 
tor  the  Goldsmiths'  company. 

Are  you  aeipiuinted  with  thcKi  now? — ^We 
have  no  conversation  now. 

Wbiit  is  the  reason  of  Ihc*  discontinuance  of 
your  artjuainiance  wilh  Mr.  Nash? — My  rea- 
ion  in  tbis^  that  he  ditl  not  apjiear :  that  he 
ahould  seem  to  have  siomeLliin^  to  say,  and  not 
aay  it.  [  thouj^hi  it  was  an  odd  thing  not  to 
appear,  and  ibeu  to  apjiear  afterwards. 

Bid  that  break  your  acciuaiuiance  ?*— It 
has  so. 

JJid  you  ever  hear  him  say,  before  the  trial 
of  Squi»esdud  U'elts,  that  he  did  not  believe  a 
word  of  the  defendant's  tlory  ?— No ;  not  at 
all,  u[H»Q  00  account. 


Trial  of  Eihaheth  Cannings  [*" 

Did  you  ever  hear  Mr.  Aldridge  tt?  so!— 
No:  Mr.  Aldndg-e  1  have  seen  casually  pas 
It od  repass.  Your  liumble  seiiantr  sod  sootr; 
but  I  was  not  in  his  company.  When  I  aiir 
Mr.  Nash  on  the  morniog  ot  the  trial  of  iht 
l^ypsey  it  whs,  Your  servaul,  and  s'*  on  ^  liot 
no  conversation .  I  never  wa«  «vilh  Mr  Al- 
flrid^e  since  the  time  of  coming  froiu  Eulield- 
Wnah. 

Had  vou  used  to  be  frequently  with  biiob^ 
fore? — No,  but  caaually. 

Have  you  been  as  ultimately  acquainted  wid 
Mr  Nash  since,  as  before?— I  h»ive  been  it 
hix  house.  I  did  not  keep  from  bis  hou&eiia 
that  account.  There  was  no  difference,  ill 
know  of.  1  DCTer  shunned  his  houiie  oq  tktt 
aiettiuit. 

Did  you  belong  to  a  ctub  at  his  liooM?^ 
We  hnd  a  club  of  all  the  workmen  belongiif 
to  ike  Goldsmiths  company  at  hi^  bouse ;  tbH 
is  j4iim(»ers,  hricMayera,  and  others. 

How  often  did  you  utiually  meet? — Soac- 
times  once  a  fortnight,  sometiineis  three  weeki. 

Did  you  go  preliy  constantly  ?^*t  did. 

Have  you  frequented  that  chih,  and  drtodl 
there,  a«  you  used  to  do  before.'*—!  deebrti 
off  upon  that  very  account,  because  he  did  aot 
8|j[iear  on  Squires*!  trial  ;  and  after  that,  Blr« 
Nash  making  use  of  my  name  in  tuodfj 
places.  I  resented  it. 

I'hen  I  desire  to  know  ofyoUt  whether  frott 
the  time  of  your  return   from  Eoftt^ld-Wi " 
with  Mr.  Nasb  and  Mr.  Aldridj^e,  to  the  trial 
the  gyi»sey,  your  intimacy  wag  the  same  wi 
thc^m  as  it  had  been  helbre? — I  had  not  m 
Mr.  Aldridge.     J  had  no  dishke  agamst  him 
afterwards,  that  things  went  ui  auch  a  line 
were  di^greeable.     Mr.  Nash  had  been  at 
house,  as  I   obserred  before.     1  did  not  lce|f 
from  Mr.  Nash  on  that  account  till  after  ' 
trial  of  thegypsey. 

Are  you  sure  of  that?— f  arer  it.  I  IbM 
nothing  to  the  contrary.  I  bad  no  dislike 
him,  till  after  that  triaf 

During  that  perioil  of  time  between  yonr 
turn  from  En^cld-Wash,  and  ibe  trial  of  MtiJ 
Squires,  did  you  ever  bear  Na«*h  say  any  tbiof 
of  hifi  disbelief  of  Canning's  story,  or  thftt  m 
thought  it  improloihle  ? — Indeed,  I  did  not. 

Whether  Mr.  Nas^h,  Mr.  Aldridge,  and  Un 
Hague,  when  they  went  with  you  to  Enfiddi^ 
had  not  the  same  evidence  of  the  truth  of  tbt 
story,  and  nW  its  circuuisTatice«,  as  you  had  ?^ 
i  know  Ibe  coach  stopped  two  or  three  tiinfff' 
as  for  Mr.  Atdridi^e,  he  was  very  litlle  tbereii 
Air.  Nash  was  in  the  house,  and  saw  aa  nioell 
ati  I  did. 

Why  did  not  you  subpoena  those  tbi 
sons  to  give  eviilence  on  the  trial  of  S^ni 
E  Mas  not  concerned  lu  the  thing, tn< 
other  (I Larsons  concerned. 

Who  tvtfre  lixed  upon  as  prosecutors?—! 
don' t  know. 

Were  you  examined  before  the  grand  jury  t 
— No,  I  was  not 

Did  not  you,  on  the  15th  of  February,! 
your  jaama  to  a  piper  id  encourage  cgntiibi 


IIS] 


ftr  WHJvi  and  Corrupt  Perjury. 


A.D.  1754. 


[474 


lioi»  to  etrry  oo  the  prosecution  f — ^Tbere  was 
■y  Dtine  io  print  to  ao  advertisemeot,  when 
tbere  were  several  gentlemen  together. 

Did  tbey  make  use  of  your  name  without 
jtarooDsentP— No,  they  did  not:  they  men> 
tiiaed  this ;  tbey  thought,  as  I  was  the  master, 
it  voold  be  more  agreeable  to  put  it  in ;  I  said, 
Gcsdemeo,  if  that  is  the  case,  put  it  in. 

Did  not  that  contain  a  reward  for  the  appre- 
ksdiiig  two  men  concerned  in  carrying  her 
4mii  to  Enfiehi-Wash  ?  and  did  you  advance 
■f  oMNiey  towards  payingthat?— I  was  half 
tpHuOL :  tbe  rest  were  the  same.  As  to  pay- 
w%  m  palrticular,  that  was  not  mentioned. 

Mr.  Haty.  The  advertisement  concludes 
wirii  these  words :  'Whoever  will  take  or  ap- 
*  HcliCBd  one,  or  either  of  them,  &c.  Francis 
'  BobcTti,  Akiermanhury,  Edward  Lyon,  AX- 
'JBTiahnry,  the  girl's  master.' 

{Gross-examination  continued.] 

Bii  5e«  consent  to  tbe  publication  of  this 

Vfhribm  ibere  was  not  a  subscription  going 
si^  M  mitt  to  encoursj^e  her  for  her  virtue  ? 
Was  yea  eae  of  those  r—  I  did  not  go  about 
le  gel  ber  any  money  ;  there  were  persons 

Did  TOO  contribute  to  the  ezpence  of  the 
MccauoD  of  the  gypsey  and  Wells  at  the 
bU- Bailey  P-«— I  did  not  act ;  1  had  no  concern 
la  die  delivery  of  the  money ;  the  subscription 
en  not  made  then ;  I  subscribed  nothing  to 
Ibit;  what  1  did  was  since  that. 

Hew  much  did  you  contribute  towards  the 
onyiag  on  the  prosecution  of  Squires  P — No 
■Me  tlMO  that  half  guinea  then.  • 

Did  you  give  evidence  on  that  trial  of  what 
jmtA  at  Wells's  house?— I  ilid. 

Do  you  think  Mr.  Nash,  Mr.  Aldridge,  and 
Mr.  ntgue,  could  bear  what  passed  as  well  as 
|s«?— Tbey  could  bear  better  than  i. 

Did  you  see  them  in  the  room  where  she 
■yt  tbe  was  oonfin<*d  ? — I  cannot  tell  whether 
thtj  were  in  tbe  room;  I  saw  them  in  the 

Why  were  the  three  not  called  to  give  evi- 
daes  against  Squires  and  Wells,  as  well  as 
ynnelf  ?— I  as  much  believed  that  Mr.  Nash, 
*fei  I  saw  him  in  court,  came  U|M>n  that  affair, 
Hflver  I  believed  auy  thing  in  my  life. 

Old  you  at  that  time  believe  he  would  give 
videoee  for  or  against  the  gypsey? — I  be- 
intd  be  would  afrsinst  the  gypsey,  as  I  did. 

Was  there  no  dub-day  l^twizt  yourfifo!og 
diva  toEofield-Wash  and  the  trial P—fcan- 
ist  tell  whether  tbere  was  or  not ;  if  tbere 
vai,  I  might  not  be  at  it.  J  remember  going 
Me  after  the  trial  was  over:  Mr.  AM  ridge 
ml  bis  eervaot  after  me,  who  said,  his  master 

Ke  bis  service  to  me,  and  desired  to  know 
r  the  aflair  went :   I  said,  They  are  both 
CMt      I  went  directly   to  Mr.   Nash's,  and 
draak  a  glasa  of  cyder,  but  do  not  know  that  I 
*w  bin. 
Wen  yoo  Iben  angry  with  Mr.  Nash  P— No. 
WbM  jott  were  at  justiee  Taibiiiaker*f|  wu 


George  Squires  there,  and  how  was  he  dressed  f 
—He  was ;  he  then  had  his  great-coat  on. 

Was  it  put  on  in  order  for  the  defendant  tor 
see  whether  that  was  the  man  or  notp — 1  don't 
know  that. 

Did  you  not  say,  upon  the  trial  of  Sauires 
and  WeHs,  that  she  said  he  looked  more  like 
the  man  after  he  had  that  coat  onP-<^he  did 
say  to  that  purpose. 

flow  came  the  justice  not  to  commit  him  P— 
Why,  we  mentioned  that  it  was  a  pity  thej 
were  not  all  committed. 

Did  you  hear  George  desire  he  might  hm 
committed  P— No,  1  never  did :  so  different 
from  that,  that  when  the  mittimus  was  ivriting, 
he  looked  over  a  woman  (and  seemed  to  quiver 
a  little)  to  see  whether  there  was  a  mittimus 
making  for  him,  as  I  took  it ;  but  I  did  not 
hear  him  express  a  word  about  it. 

it  seems,  yon  believed  the  girl's  story  frona 
the  first  hearing  P — 1  did. 

Did  you  take  any  method,  from  that  timar 
to  this,  to  satisfy  yourself  about  it  P— I  gut  far- 
ther evidence  of  the  story  as  far  as  I  could,  in 
questioning  the  giri  at  Mr.  Marshall's,  as  f 
mentioned  before ;  1  had  no  doubt  at  all. 

You  bid  her  be  careful ;  do  you  believe  sh« 
was  careful  ? — I  believe  she  was. 

Then  why  did  you  desire  her  to  recollect  her- 
self, to  see  if  she  was  misuken  P— Because 
there  was  such  a  great  clamour  about  it,  and  i 
was  willinv:  to  ask  her  ugaiu. 

Mr.  WiUiavu,  Whether  you  did  not  give 
the  gentleman  a  true  answer  before,  when 
you  told  him  you  had  been  instrumental  in 
brius^ing  them  to  be  disiovered  in  the  adver- 
tisement of  twenty  pounds  ? 

E.  Lyon.  Yes,  1  had  been,  and  would  have 
turned  out  something. 

Mr.  Williams.  Mv  lord,  we  are  now  to  read 
the  letter  that  Mr.  Nash  owns  to  be  his  hand- 
writing.—(To  E.  Lyon.)  la  this  tbe  letter 
that  you  received  P 

E  Lyon.  This  is  it.  (He  takes  it  in  bii 
hand.)  It  appears  to  have  been  wrote  on  th« 
lOtfi  of  Feliruary. 

Mr.  Williams.  Did  not  you  think  he  was  % 
well-wisher  to  the  discovery  of  this  aflair  P 

E,  Lyon.  Indeed  I  didf,  and  all  the  tim« 
afterwards,  to  the  time  of  the  trial. 

Mr.  Williams.  How  old  is  the  girl  now  P 

E,  Lyon.  I  believe  about  nineteen  years  of 
age. 

(The  Letter  read.) 
«»  Mr.  Lyon  ;  Fth.  10,  175S. 

**  I  am  informed  by  Mr.  Aldridge,  who  has 
been  at  Enfield,  that  if  a  person  1^  ap|iointed 
there  to  receive  contribution,  some  money 
would  be  raised  in  that  place  for  the  unhappy 
poor  girl.  I  wish  you  success,  and  am  your's, 
"  Gawbn  Nash." 

Directed  on  tbe  back,  «  To  Mr.  Lyon,  Al- 
dermanbury." 

Thomas  ColUy  sworn. 
T.  CoUey.  I  am  ancle  to  the  prisoaer,  and 


476] 


27  GEORGE  II. 


life  at  Saltpetre-Bank ;  I  am  a  glass-blower ; 
on  the  Ist  of  January  was  twelve-month,  she 
came  to  my  house,  and  stayed  from,  twelve 
o'clock  to  about  nine  in  the  evening.  She 
lived  servant  then  with  Mr.  Lyon.  After  we 
had  supped,  I  and  my  wife  went  along  with 
her  homewards,  to  the  end  of  Houndsditch  ; 
we  parted  with  her  there. 

Mr.  Morton.  How  was  she  dressed? — T. 
CdUy,  She  had  a  sort  of  a  strip'd  gown  on,  1 
caoHoi  tell  the  name  of  it. 

Was  she  well  and  hearty  at  that  time  ? — She 
was. 

Where  did  she  say  she  was  going  ?-^he 
told  me  she  was  going  to  her  master's,  and  was 
in  her  way  there  when  we  left  her. 

Had  you  any  reason  in  the  world  to  doubt 
but  she  was  going  there?— No,  1  hail  not 

How  near,  and  what  a- kin  ia  she  to  you  ?— 
My  wife  is  her  father's  sisier. 

Had  you,  upon  your  oath,  any  reason  to  be- 
lieve that  she  was  a- breeding?— No,  I  had  not. 

Cross-examined  by  Mr.  Willet,* 

What  time  did  she  come? — About  twelve 
o'clock  at  noon. 

Did  any  body  come  with  her  that  day? — 
No,  nobody. 

Was  she  in  perfect  health  ?— I  never  saw 
ber  better,  as  I  know  of. 

What  bad  you  to  dinner  ?— Some  of  a  cold 
shoulder  of  mutton  'and  potatoes,  which  was 
dressed  the  Sunday  beforsw 

Did  she  eat  a  hearty  dinner  ?-*She  cat  as 
hearty  as  she  coukl ;  she  seemed  to  eat  as 
liearty  as  i  did. 

*  This  cross-examination  was  ridiculed  bv 
Foote  in  a  farce,  in  the  performance  of  which 
he  exercised  his  talent  of  mimicry,  by  a  very 
successful  exhibition  of  Mr.  Willes's  peculia- 
rities of  voice  and  manner. 

In  vindication  of  WiUes,  Mr.  M alone  has  ob- 
served (in  his  Inquiry  into  the  Authenticity  of 
the  Papers,  Sec.  which  in  1795  were  published 
as  the  writincT'i  of  Shakspeare,  queen  Eliza- 
beth and  the  earl  of  Southampton)  **  Persons  who 
are  not  convensant  with  legal  subjects  or  the 
true  object  of  lawyers  in  their  examination  of 
evidence,  are  frequently  surprised  at  minute 
questions  put  to  witnesses,  ubich  they  think 
either  vexatious  or  impertinent ;  and  on  such 
occasions  the  well-known  question  which  a  late 
admired  comic  actor  introduced  into  one  of  his 
pieces,  and  %%hich  he  rendered  still  more  ridi- 
culous by  imitating  the  thin  and  stridulous  voice 
of  an  eminent  barrister,  who  was  aften^-anls 
raised  to  the  bench — •  Pray,  now  let  me  ask 
you,  was — the— toast  buttered  on  both  sides  ?' 
IS  often  mentioned  with  much  satisfaction  and 
applause  by  those  who  have  attended  more  to 
the  hnmonr  of  the  theatre,  than  the  investiga- 
tien  of  trath.  But  the  judicious  lawyer,  when 
ha  asks,  not  precisely  such  qneattooa  as  the 
Sngliah  Aristopbanaa  haa  invtotcd  for  bim, 
kitTipHMttMarMvil  NMMW)  oTadN. 


Trial  qfEUMobeih  Camiag^ 

This  being  new-year's  day,  wbatdk 
give  ber  to  drink?— She  drank  some  tci 
fing  beer,  whkdi  I  had  in  the  home.  1 1 
work  in  tlie  afternoon. 

Does  your  wife  drink  tea  in  the  afterooc 
I  She  geneimlly  does,  whether  abe  has  con 
or  not. 

Have  yoQ  seen  your  niece  drink  Im 
have. 

Do  you  think  yonr  wife  and  she  In 
that  afternoon  ?— I  do  really  believe  the] 
'  Does  your  wife  generally  have  brea 
butter,  or  toast  with  her  tea,  or  doCP< 
generally  chuses  toast  and  butter. 

What  time  did  j^ou  return  home  from  i 
—At  about  seven  in  the  evening. 

What  had  you  for  supper? — We  bad 
of  a  sirloin  of  beef  roasted. 

Did  your  niece  eat  of  that  ? — She  eat  a 
quantity  of  that,  hot  could  not  eat  much. 

What  did  she  drink  after  that?— She 
a  small  quantity  of  ten -shilling  beer. 

How  far  did  yon  go  with  her  ? — 1  wea 
her  to  the  end  of  Houndsditch,  alasoil 
Blue  Ball. 

Who  went  with  you  ? — Nona  hat  my  s^ 
and  her. 

Did  you  stop  at  all  by  the  way?— W 
not. 

What  sort  of  a  hat  had  yourconain  oai 
time? — She  had  a  sort  of  a  chip,  a  white 

Had  you  any  other  entertainment,  than 
you  have  mentioned,  either  at  nooo  or  uigl 
zio,  we  had  no  other. 

Had  you  any  mince- pies  io  year  hooi 
No,  1  had  not. 

Do  you  know  of  her  buying  a  peaoy 
— I  cannot  lell  where  she  came  by  that. 

You  are  sure  you  gave  her  none  at 
house? — 1  had  none,  and  vave  her  none. 

You  don't  know  what  money  she  had 
her? — My  wife  told  me,  she  asked  her  i 
with  her  into  R(tsemary-lane  to  buy  a  i 
when  1  was  at  work ;  but  1  cannot  tell 
much  money  she  bad  in  her  pocket  at  that 

By  Mr.  Morton. 

Was  the  toast  buttered  on  both  sides,  d 
think?  Here  have  been  a  great  many 
tions  asked  in  order  to  force  a  stool. — Col 
cannot  lell. 

When  did  you  hear  she  was  missin| 

made  and  published  it,  was  sitting  up  i 
bed  or  in  an  arm  chair  ; — what  was  the  s 
form  of  the  room — how  many  persons 
present — who  li^htetl  the  candle,  or  fun 
ilie  wax  with  which  it  was  sealed,  &c.  pet 
understands  what  he  is  about ;  and  in  em 
fiction  and  fraud,  the  event  often  prav 
propriety  of  such  an  examination  ;  for  I 
answers  given  to  these  questions,  can 
with  the  testimony  of  others,  and  the  rea 
the  iastrument  set  up  b  quickly  overthn 
See  the  Examinations  (pp.  345, 846)  af  C 
and  Hawkins,  aa  to  whether  the  fMb  m 


ITT] 


Jbt  Wiyvl  and  Corrvpi  Perjury. 


A.  D.  1754. 


[478 


imi  that  the  mdm  evening ;  her  mother's  ap- 
fmUke  came  to  my  boutie  that  fame  night, 
wi  called  and  awaked  me  and  my  wife  ont  of 
nr  sleep,  aa  nigh  as  I  can  guess,  between 
difCD  and  twelve  o'clock. 

How  far  is  Houndsditch  from  Aldgate  P — Tt 
uj  he  about  ten  yards ;  I  told  the  apprentice 

parted  with  ber  at  the  end  of  Hounds- 
itch. 

What  did  the  apprentice  say  ?— fle  said,  the 
■fi  master  bad  been  at  his  mistress's  house, 
li  wanted  to  know  where  she  was,  and  upon 
\  lie  came  to  know. 


Alice  ColUy  sworn. 

A.  CoUey.  I  am  wife  to  the  last  evidenoe,  and 
■I  to  EluBabeth  CanniDg  j  she  came  on  New- 
m^%  day  was  twelve  month,  about  twelve 
tek,  to  our  house,  having  a  holiday,  and 
md  till  aboot  nine  at  nii;ht;  then  my  hus- 
mA  aod  I  wrnt  along  with  her  as  far  as  the 
smcr  of  Houndsiliich  towards  her  master'a 
wmm%  Ihtrtwe  pan<*d  with  her. 
Mr.  Ntm.  Was  »he  in  good  health?— il.  Col- 
y,  flbe  was,  in  all  ap|H*arance,  as  well  aa  I  am 
sw,  10  outward  ap|iearance.  i  stotid  and 
loed  ocrsia  a  |iost.  and  saw  her  go  directly  on 
T  way  down  Houndsditoh ;  then  we  went 
MO  to  bed,  and  ab(>iu  twelve  at  night  the  ap- 
flodee  eotiie,  and  asked,  if  Betty  was  here  ? 
ly  hopboad  said.  No,  1  and  my  wiVe  went  with 
V  io  far  •■  Hounsditch,  and  there  parted  with 
V.  Tben  the  apprentice  went  away,  and 
Me  about  six  in  the  morning,  and  my  sister 

a  with  him;  she  knocked  at  the  dour,  and 
Let  me  in,  which  I  did;  and  the  ap- 
Mliee  went  to  the  glasN  house  to  my  bus- 
■ri;  she  told  me,  Betty's  master  had  been 
\kk  her  onee  or  twice,  and  they  did  not  know 
ikoesbo  was ;  we  were  ail  much  surprised. 

Crom-examined  by  Mr.  Gasco^ne. 

Bid  she  kwk  to  be  very  hearty  ?— 8he  did. 

Ifhat  had  you  for  dmner  that  day  ? — We 
iilihe  romaiuB  of  a  cold  shoulder  of  mutton 
■laolatoea. 

Did  she  drink  tea?— Yes,  she  did. 
.What  bad  you  with  your  tea?—  We  had 
|M  and  butter ;  she  eat  but  a  very  little,  not 
by  heartily  ;  bat  1  cannot  say  1  minded  her 
bKb. 

JXd  you  go  to  an  ale-house? — No,  we  did 
ft.   I  took  her  once  or  twice  to  the  glass- 
I  to  see  my  husband  work  some  time  in  the 


Wsi  that  before  tea,  or  after  P — I  cannot  tell. 
Was  any  body  else  with  you  that  afternoon  f 


Rosemary  -  lane  ?— 


Was  any  body  else  with  you 
^4it,  DolMidy  but  she  and  I. 
^Did  r3a  go  with  her  to  Roi 

llbidldDOU 

'Did  you  ever  separate? — No;  only  when 
Ij^fer  was  ready,  1  desired  heir  to  go  and  ask 
ItMeleto  come  to  aupper.  She  went,  and 
mycamotofrtber. 

Did  yog  aead  hor  any  where  else  aAer  that  ? 
*4la,  1  did  not,  only  to  him  to  an  ale-house, 
«i  Btack  Bojy  BolaboTO  Mven  or  tigbt  doors 


fh>m  me;  and  he  came  with  her  directly  in  a 
few  minutes. 

Did  she  tell  you  what  money  she  had  to  bny 
her  a  ckiak  ?— No,  nor  did  I  see  what  money 
she  had. 

Did  you  hear  your  husband  examined?-- - 
No,  I  did  not. 

What  time  did  you  part  from  her?— Wo 
parted  with  her  at  Houndsditch  about  half  aa 
hour  after  nine. 

Did  you  pass  by  a  pastry-cook's  in  going  f 
—We  did. 

Did  you  bay  a  pye  to  treat  your  niece  ?— No, 
I  did  not. 

la  the  Blue  Ball  in  Hoandsditch  in  the  way 
to  ber  master's  house  ? — It  is. 

By  Mr.  Recorder, 

Wben  aid  you  see  her  first  again  ?— On  king 
Charles's  martyrdom,  and  never  till  then. 

Did  she  complain  she  had  been  confined  ?-— 
She  did,  and  was  in  bed,  and  very  ill ;  and  ihero 
waa  a  gentlewoman  talking  to  her,  named  Polly 
Lyon  ;  we  did  not  care  to  ask  her  nuny  ques-  • 
tions,  she  being  very  ill  and  in  a  low  condition; 
ahe  could  hardly  speak,  she  was  so  very  faint. 

Can  you  tell  what  it  waa  occasioned  by  ?— 
By  being  used  very  ill,  and  half-starved. 

EliMabeth  Canning  sworn. 

Canning.  I  am  mother  to  the  girl ;  she  waa 
nineteen  the  17th  of  last  September  :  In  De- 
cember 1753  she  lived  with  Mr.  Lyon  in  Ai- 
dermanbury. 

Mr.  Wiilutms.  Did  you  know  of  her  going 
to  ber  uncle's,  Mr.  Colley's?— -Can itiit^.  I 
did ;  she  called  at  my  house,  (it  was  en  a 
Monday,  New-year's- day)  and  told  me,  she 
was  g«Mng  to  her  uncle. 

Was  there,  or  was  there  not,  any  account 
brought  to  your  house  that  night,  that  she  was 
not  come  back  ?-— Mr.  Lyon,  her  master,  cama 
to  my  houKc  just  after  nine  o'clock,  and- said, 
he  wondered  she  stayed  so  long :  I  waa 
frightened  out  of  my  wita :  I  sent  my  three 
children  into  the  fields  to  see  after  her,  and  I 
sent  my  apprentice  to  Mr.  Colley's,  her  uncle  ; 
they  said,  they  had  parted  with  her  after  nine 
o'clock  at  Houndsditch.  I  sent  again  in  tha 
morning,  and  I  went  myself  before  it  was  light. 
Mrs.  Colley  was  a-bed  tben :  I  said,  Let  mo 
in,  let  me  in ;  Mrs.  Colley  got  up,  and  said,  O 
lack,  has  not  she  come  in  yet  ?  I  said,  No. 
She  said,  she  leh  her  there.  Her  husband  waa 
called  from  the  glass-house ;  and  I  was  ready 
to  run  distrscted. 

From  that  time  to  the  30th  or  81st  of  Janu* 
ary,  did  you  hear  any  thing  of  your  daughter, 
or  know  where  she  was  ?— She  came  noma 
the  day  before  king  Charles's  martyrdom,  at  a 
quarter  after  ten  o'clock.  I  had  advertised  ber 
in  the  papers  the  first  time  on  my  own  head  % 
and  then  afterwards  one  Mrs.  Maynard,  % 
turner's  wife,  came  to  me,  and  suid,  Have  jroa 
advertised  her  any  more  P  I  said,  I  did  not  think 
to  do  it;  indeed  it  was  oot  of  my  power,  it 
was  very  bard  with  mt. 


479] 


27  GEORGE  11. 


Did  you  hear  any  thing  in  conieqaenoe  of 
thU  advertisement  ^'-Oae  gave  roe  a  shilling, 
and  another  gave  me  a  shilling ;  so  I  advertised 
her  two  or  three  times,  and  had  no  account  of 
her. 

Upon  your  oath  did  you  know  any  thing  of 
her  during  the  time  she  was  gone  ?— No,  I 
did  not. 

On  this  night,  what  time  did  your  daughter 
come  home  ? — A  quarter  after  ten. 

Where  was  you  when  she  came  home  ? — I 
was  partly  getting  into  bed,  and  my  apprentice 
was  going  to  fasten  the  door.  He  called  and 
■aid.  Here  b  somebody  at  the  door.  I  said. 
Who  is  it  P  he  said,  Betty.  1  said,  What 
Betty?  he  said,  Our  Betty.  My  little  girl 
ran  screaming  up  to  the  chimney :  1  said, 
Feel  her,  feel  her :  I  thought  she  was  aa  ap- 
parition. She  came  in  in  this  posture  (describ- 
ing it,  which  was  almost  double,  and  walking 
aide- ways,  holding  her  hands  before  her.) 
When  she  came  up  so,  I  took  her  to  be  an  ap- 
parition. 

What  was  her  dress  ? — She  had  a  loose  bed- 
gown, and  a  rag  about  her  head,  and  her  ear 
was  bloody,  and  the  rag  was  bloody. 
.  Did  you,  before  she  brought  that  bed-gown 
home,  ever  see  it  before  ? — No,  never  in  my 
life.  1  never  wore  such  a  thing,  so  poor  as  it 
is  with  me. 

Did  any  of  your  neighbours  come  in,  after 
your  daughter  came  home?— After  my  daughter 
came  home,  the  first  that  came  in  was  Mrs. 
Woodward ;  my  apprentice  James  ran  and 
fetched  her,  and  Polly  Lyon  next  door  to  me ; 
and  the  third  person  was  Mrs.  Myers ;  then 
Mr.  Roberts's  maid,  and  Mr.  Wintlebury. 

Now,  when  these  people  were  come  in,  was 
your  daughter  interrogated  by  them  where  she 
had  been  ? — They  asked  her,  where  she  had 
been  f  her  master  Wintlebury  took  her  by  the 
hand,  and  said,  Where  have  you  been?  she 
■aid,  Sir,  I  don't  know,  but  uDfy  by  seeing  my 
mistress's  coach,  the  Hertlbnjsfiire  coach: 
■he  was  not  able  to  say  the  place  wiicrc  she 
had  been  at. 

Was  she  able  to  give  an  account  of  the  per- 
■onsf — No ;  she  said,  there  was  an  old  uouian, 
and  two  young  ones,  and  i»lie  sliouid  khow 
thetn  again  if  she  saw  them,  she  thought. 

Did  she  give  an  account  to  yon,  whut  &ort  of 
an  old  woman  it  was? — No,  slie  did  not. 

Did  she  give  an  account  uliat  bcfel  her, 
after  her  uncle  Colley  had  left  her  in  Moor- 
fields  ? — She  said,  she  had  been  robbed,  .ind  by 
what  sort  o\'  men,  but  she  could  n<it  tell  who 
they  were ;  but  that  it  was  the  sauie  two  men 
that  robbed  her,  that  dressed  her  away. 

Who  asked  her?— We  all  asked  her.  She 
gave  an  account,  that  they  pulled  her  uloup:, 
•nd  after  they  gave  her  a  hlow,  8he  could  tell 
no  more,  and  that  she  was  confined  where 
there  was  hay  in  the  room  ;  she  said,  she  lived 
upon  bread  and  water;  that  from  the  Friday 
to  the  Monday  alie  had  none  to  sut^sist  on ;  and 
■he  gave  an  account  of  the  mince -pye  she 
kooght  for  ber  brotlier. 


Trial  qfElinalHh  Catmhg^  [480 

Did  she  give  a  description  of  a  pitcher  ?— 
She  said  there  was  a  broken  pitcher  of  water, 
that  very  night. 

What  was  done  to  her  that  night P  Did  yoa 
put  her  to  bed  ? — I  did,  and  it  was  five  o'cJock 
in  the  morning  before  1  could  get  any  warmth 
in  her  feet.  ■ 

Look  at  this  pitcher  (Which  she  did).  It  | 
this  your  pitcher  ? — It  never  was  mine. 

Did  you  carry  that  pitcher  down  with  yoaf 
—I  did  not.  1  pulled  off  my  own  atoclcingi, 
and  put  them  upon  her ;  and  in  the  momiag 
you  might  have  wrung  the  things  about  ber, 
she  was  in  such  a  sweat.  Polly  Lyon  brougkt 
some  wine,  and  Mrs.  Woodward  and  she  ninU- 
ed  it,  and  when  she  had  some  poured  onl  ihi 
could  not  swallow  it;  she  was  in  an  exireaia 
deplorable  condition  in  regard  to  her  heaM. 

The  next  day  was  any  body  sent  fir  of 
skill  in  a  physical  way  f^Mr.  Bakler,  tba 
apothecary's  man,  came  in  that  night ;  beiif- 
ed  her  ear,  and  put  a  plaster  to  it ;  he  gave  hcc 
some  drops,  and  then  went  away.  His  master 
came  in  the  next  morning ;  he  ordered  tome- 
thing  for  her,  to  give  her,  in  bottles ;  he  asked 
her  as  to  the  state  of  her  health. 

What  is  bis  name  ? — His  name  is  Bakler. 

Did  the  apothecary  give  her  any  thing  ia  j 
order  to  cause  a  stool  ?— She  had  no  alool  till  j 
she  had  three  glysters;  she  coDtiDiied  ex-  ^ 
tremely  ill. 

Had  you  tlie  advice  of  any  other?— Wt 
had  the  advice  of  Dr.  Eaton.  I  had  BOtooa- 
veniency  for  her,  having  but  one  room,  tid 
the  room  which  the  boy  lay  in  ;  so  she  wasci^ 
ried  from  my  house  to  a  house  over  the  way. 

How  came  there  to  be  a  suspicion,  that  it 
was  at  mother  Wells*8  that  she  was  confined? 
— She  nominated  the  name  of  mother  Wilbtf 
Wells  that  night,  she  did  not  know  which ; 
that  she  heard  them  call  it  very  plain  ;  I  to* 
lieve  Mr.  Wintlebury,  Mr.  Scarrat,  Mn. 
Woodward,  and  Polly  Lyon,  all  were  there li 
that  time. 

Had  any  body  that  was  there  given  her  tbi 
least  hint  of  Wills  or  Wells,  or  any  name  liki 
it  ? — No  soul  ever  spoke  to  her,  till  her  owl 
mouth  mentioned  it.  « 

How  was  it  first  known  or  believed,  tliatthil  9 
mother  Wills  or  Wells  lived  at  Knfield-Wash'f  T 
— I  don*t  know,  Sir  ;  because  she  had  described  ^ 
it  to  be  upon  the  Herifordbhire  road:  upM 
this  there  was  applicatiou  made  to  Mr.  Alder*  . 
man  Chitty.  x 

Who  fixed  il  down  to  l>e  the  house  of  aO" 
ther  Wells  at  Eufield-Wash  ?-^l  doii'l  knoi't 
there  were  a  c:rtai  many  people,  ami  1  wass*     , 
concerned,  I  did  not  hear  all  tneir  talk.  j 

Was  there  any  proposal  to  i^o  down  to  Efl*  j 
field  Wash? — Thert*  was;  we  went  down  o^  ' 
the  Thursday  after  she  came  home;  she  cam*  i 
home  on  a  Monday  ni^ht .  there  was  Mri-^j 
iMyers,  Mrs.  Garrai,  my  «irl  and  me,  and  • 
young  child  in  my  aims*:   wt  went  in  a  chaiit' 

Do  you  recollect  any  bo4ly  that  met  you  a* 

the  roiui  before  you  got  down? Yet;   Uf* 

Adamton. 


Jor'Wilfid  and  Corrupt  Perjury.  A.  D.  1754.  [48t 

Who  hati  you  the  first  paper  of? — My  sister 
Alice  Colley  wrote  it  in  my  room. 

"Do  you  know  her  liaod  •  writing;  P-*-!  have 
seen  her  write  twice  before ;  but  don't  know 
her  band- writing.  Sbe  wrote  '  scowerer'  in- 
stead of 'sawyer.* 

I  see  upon  it  *  scowerer'  is  struck  out,  and 
*  sawyer'  wrote  ;  who  bad  you  the  second  paper 
off — I  believe  it  was  done  at  the  White  Lioo, 
at  the  end  of  Fore-street,  facing^  the  gully- 
hole,  by  either  the  master  or  somebody  there  ; 
Polly  Northan  can  tell,  for  she  stayed  the 
writing  of  it. 

Now,  had  you  at  that  time  heard  any  thing 
of  your  daughter's  being  in  Bishop^^fatc- 
streek  ?— Yes ;  1  heard  it  of  a  gentlewoman  at 
an  oil- shop,  the  sign  of  the  Two  Jars  through 
Bishopsgate,  townrds  Cornhiil.  She  informed 
me,  she  heard  a  young  voice  scream  out  iu  a 
coach ;  but  whether  it  was  a  man's  or  a  woman's 
voice  sbe  could  not  tell. 

How  long  was  it  before  the  6lh  of  January, 
the  time  of  sending  the  second  paper,  that  you 
had  this  account  from  that  gentlewoman  ?— 
I  don't  know,  but  it  was  a  night  or  two  nights 
before. 

Then  her  screaming  in  Bishopsgate-street 
was  wrote  in  the  pa|»er  by  your  order  ? — U 
was.  I  thought  1  would  leave  no  stone  un- 
turned to  find  her,  and  so  I  told  Polly  Northan 
of  that. 

Where  had  you  the  third  draught  of  an  ad- 
vertisement ?—- That  was  wrote  iu  my  kiioben 
by  one  Spencer ;  he  did  it  by  the  directions  of 
the  gentlewoman  at  the  oil -shop  for  me,  as  1 
was  advised  by  my  friends  to  do  it. 

Who  advised  you  to  put  a  reward  in  ? — It 
was  ber  uncle  bid  me  to  do  that,  and  said, 
he'd  pay  that,  if  he  stripp'd  hisskin. 

Had  you  any  knowle«lge»  at  that  firoe,  bow 
much  money  your  daughter  had  in  her  pocket 
on  the  1st  of  January  P — Yes,  I  had ;  for  I 
lent  her  a  little  box  to  put  the  half  guinea  in  ; 
for  I  was  to  have  gone  out  with  her  oo  that  af- 
ternoon to  buy  a  cloak  and  a  pair  of  mittens. 

When  was  that  agreement  made  to  bay  a 
cloak  together  P — 8he  made  that  agreement 
with  me,  before  she  went  from  me  to  gu 
to  her  uncle's  ;  she  intended  to  return  to  me 
that  afternoon,  but  they  would  not  let  ber  re- 
turn till  she  had  a  hot  supper,  because  they  had 
nothing  but  cold  victuals  for  dinner. 

How  much  nooney  had  she  in  her  pocket  at 
that  time? — Sbe  had  half  a  guinea,  three  shil- 
lings, and  a  farthing.  I  saw  the  half  g^uinea 
nut  into  the  box,  and  she  put  the  three  shillings 
loose  into  her  pocket ;  and  the  night  she  re-> 
turned,  she  gave  the  farthing  to  her  brother. 

Was  thirteen  and  six- pence  farthing  all  ths 
money  she  had  P — It  was. 

When  you  advertised  her  the  last  time,  did 
you  know  then  what  money  she  had  in  her 
pocket? — Her  brother  said,  she  had  changed  a 
six-pence,  and  gavp  every  one  of  them  a  penny  ; 
and  Mrs.  Lyon  told  me,  she  had  given  her  liaiif 
a  guinea  in  golil,and  three  shillings  in  siUgr. 
Did  your  child  tell  you  she  bad  ahangsd 

S  1 


^if  •  you  or  your  daughter  any,  or 
enption  of  the  iiuuse  of  mother  Wells  P 
ay  oalh  be  did  not. 
ask  Betty  any  questions? — His  horse 
t  staud  still:  he  said,  Drive,  coach- 
onder  you  stay  so  long.  Tiic  coach- 
,  the  road  was  so  bad,  and  such  a  load 
le  could  not  go  faster.  He  asked  her, 
t  of  a  place  she  was  in,  and  if  she 
neraher  it  ?  and  she  said,  sbe  could. 
rode  ou,  aad  we  came  af^er.  When 
jown  there,  I  was  only  iu  the  parlour 
ea. 

rour  oath,  did  you  ever  go  up  in  that 
lich  goes  up  where  your  daughter 
aedP — I  went  u))  one  or  two  ste|)s. 

Oh !  oh !  this  is  the  place  of  my 
ofinemeut ;  and  a  gentleman  shoved 
laid.  Get  you  down,  get  you  down. 
set,  when  you  came  back,  did  Mr. 
hid  her  tell  what  was  iu  the  room,  if 
if— 1  don't  remember  he  did. 

>Mi- examined  by  Mr.  Davy. 

k  vou  say,  one  Airs.  Maynard,  a 
pne^  applied  to  you  to  advertise  her? 
!  the  second  time  ;  but  the  first  time  I 
idf. 

ews  her  a  paper)  I  should  be  glad  to 
<9se  hand- writing  this  is. — I  don't 
lae  hand-writing  it  is. 
^ou  advertised  her,  did  you  carry  the 
ie  press  ?• — No  ;  a  young  woman  did 
ler  name  is  Mary  Northan. 
rrote  the  paper*  that  IMary  Northan 
the  press  ? — I  believe  Alice  t'ollcy, 
wrote  the  first  adverliscraeut ;  iiut  I 
re. 

11  see  it  before  it  was  carried  ?— I  did, 
it. 

itP — I  cannot  tell. 

Ml    acquainted    with   Mrs.   Colley 's 
ing  ? — No,  Sir,  I  am  not. 
it  was  on  the  4th  of  January,  and  the 
IS  two  days  afterwards,  was  it  not  ? — 
twas. 

rote  the  second? — Indeed  I  cannot 
I  would  give  nie  all  the  world. 
J  write  it? — No,  Sir,  I  did  not;  Mrs. 
the  turner's  wife,  ad^iseil  uie  to  it. 
t  write  for  you  I'-i-No,  she  did  not. 
arried  it  to  the  Advertiser  I' — Mary 
akrried  all  the  |)apers. 
divered  them  to  her? — I  believe  I 
ow  I  did  the  first. 

1,  or  did  you  not,  deliver  the  second 
be  carried  to  the  press  ? — I  did,  I 
im  positive  they  were  delivered  iii  my 
in  my  presence. 

ere  in  the  room  at  that  time  ? — Her 
ry  was  at  the  first  time. 
;sep — 1   don't  know  there  was  any 
the  j^oung  girl  that  carried  it,  and  my 
lat  time. 

ere^  in  the  rcom  when  the  second 
delivered  P — I  believe  none  but  the 
nao  and  my  children  then. 
CIX. 


WS] 


S7  GEORGE  II. 


«- pence  ? — Ye§ ;  and  thai  she  did  B«t  give 
him  hw  penny,  beoaofe  he  huffed  her  ;  but  I 
find  with  bit  peooy  the  bought  a  pcooy  mioce- 
pye. 

Wat  it  a  half- penny  or  a  penny  each  the 
gare  them  ? — I  don't  know  whether  it  wat 
•  half-penny  or  a  peony  a-piece. 

Did  the  turn  out  her  pocket  to  vou  ?-«-No, 
the  did  not.  She  thewed  me  tbe  money ; 
half  a  guinea,  three  shillings,  and  a  farthing,  it 
all  I  saw. 

Did  she  tell  you  it  wat  all  the  had? — ^Noy 
the  did  not. 

How  many  cliihiren  had  you  then  P — I  had 
ftve  io  the  whole  with  her,  with  the  chiki  in 
my  arms. 

Who  was  to  hare  bad  the  mince- pye  P — My 
liule  boy. 

How  oame  you  to  advertise  that  she  had 
twelve  sbillingf  aud  nine- pence  half-penny  ?— 
I  look  it  so,  that  she  had  but  twelve  thiiliogt 
and  nine- pence  half- penny. 

Here  it  by  wa^  of  pottcript,  "  Had  in  her 
pocket  twelve  shillinga,  nine«pVnoe  halfoeno^.*V 
— I  ordered  it  to  be  advertised ;  the  had  tix- 
pence  more,  for  what  I  know. 

1  observe  these  words,  ^  twelve  shilliDgs, 
nine- pence  halfpenny,"  are  scratched  out  on 
this  paper ;  how  came  that? — I  fixed  upon  that 
tarn,  thinking  she  might  have  changed  tome 
money  to  give  halfpence  to  the  children. 

Who  wrote  the  third  advcrtiaement  ?— I 
•ant  tell  who. 

How  came  part  of  the  writing  on  the  paper 
to  be  teratohed  out  ?  And  I  observe  that  part 
is  not  printed  in  the  daily  paper. — 1  can't 
give  the  reason,  if  you  would  give  me  the 
worM. 

When  it  wat  delivered  to  Polly  Northao,  was 
it  scratched  out? — I  don't  know. 

I  And  in  this  paper,  "  This  is  the  last  time  of 
advertiRing ;"  tliat  also  is  scratched  out,  and  both 
these  are  in  different  ink  and  different  hands. — 
1  don't  know  that  I  ordered  her  to  be  advertised, 
**  This  is  the  last  time  of  advertising."  I  could 
not  have  advertised  her,  had  1  not  had  as- 
sistaoce,  and  my  neighbours  put  me  upon  it.  J 
don't  know  that  I  ordered  any  thing  to  be 
scratched  out 

Did  you  order  Polly  Northan  to  carry  the 
pa|icrs  directly  to  the  printing-office,  or  else- 
where?— To  the  printing-oflke. 

After  you  missed  your  daughter  so  long  a 
lima,  you  took  all  tlie  means  in  vour  power  to 
know  what  was  become  ot*  her? — Sure  I  did, 
1  went  to  all  the  agents  and  places  where  I 
could  think  of,  fearinsjf  some  casualty. 

Did  ^ou  go  to  Wood -street  Compter  ? — ^The 
peopk)  told  u)o,  if  there  were  any  quarrels,  thf>y 
wouUI  take  nil  iiwny,  good  and  bad  together, 
WttH  the  rcasofi  I  went  ihere. 

Did  you  ^u  to  a  conjuror  ? — I  did.  They 
call  hiiii  the  aHtruloger. 

Where  does  lie  live  ?— He  lives  in  the  Old 
Biul«*y. 

W ikut  is  his  name  ? — T  don't  know  bb  oamt : 
1m  bad  a  black  wig  ovtr  hit  faoa. 


Trial  ofElkabeth  Cmmngf 
hittif- 


[Wl 
-I  do^faww 


When  did  you  go  to 
when  I  went. 

How  long  after  vour  daoghter  i 
— I  don't  know,    ft  was  before  tbe  retumedT 

What  wat  done  there?— I  told  bin  I  bad 
lost  my  child  ;  and  after  he  bad  got  my  money, 
he  bid  me  go  home  and  advertise  bcr ;  he  tsid^ 
Make  yourself  easy,  she'll  come  homa  again. 

Dkl  he  tell  you  when  she  would  retum  P-* 
No,  he  did  not.  He  only  asked  me  twe  sr 
three  questions,  and  wrote,  acribUep  acribU^ 
tcribble  along. 

Did  he  tell  vou  the  wat  in  the  Imadt  af  m 
old  woman? — ^No,  he  did  not. 

Recollect  yourself.— I  donH  know  wWlbtf 
he  did  or  no :  he  might,  for  what  I  kaow. 

Or  what  mitfortunet  had  happened  to  h«9 
-No. 

Whether  he  did  not  tell  yea  abe  wat  fci At 
handt  of  an  old  black  woman? — ^The  mH 
<  black'  I  dont  remember.  I  know  he  ftighiA 
me.  When  he  abut  tbe  door,  and  lighted  Al 
candlet  up,  he  looked  to  firightfuis  I  was  glad 
to  get  out  at  the  door  again. 

What  wat  hit  first  quettionP— I  thiek,  he 
firtt  asked  me,  what  1  came  finr?  I  mlil^  Ibr 
my  chikl. 

What  were  the  other  questions  ?—rl  cmH  re- 
collect them :  it  was  about  her  going  away.  I 
believe  he  asked  her  age. 

Did  he  ask  what  state  of  health  the  was  iaf 
—No,  Sir. 

Nor  when  was  the  last  time  you  law  yMf 
daughter  ? — No. 

l5id  he  ask  any  thing  about  Bishopmla- 
street  ?— I  believe  I  told  him  that ;  be  Md  as 
advertise  her  again,  makes  me  think  I  did. 

Did  you  tell  him  of  a  dream  you  had  P—!!^ 
I  did  not. 

Had  not  you  a  dream  or  a  vision  about  k?-^ 
I  don't  know  of  any  such  thing. 

Or  an  apparition? — No ;  but  I  had  waodir* 
ing  thoughts. 

What  did  you  mean  just  now,  by  ssyingvoo 
had  wandering  tlioughis  ? — 1  sav,  I  never  M 
rest  night  or  day,  for  my  thoughts  were  wsa-. 
dering. 

How  came  you  to  imagine  she  was  coofitsl 
by  an  old  woman? — It  never  came  intoa{ 
thoughts  that  she  was  ;  I  more  thought  sW 
was  murdered  iu  Houndsditch,  and  thrown  ill* 
some  ditch  there. 

At  this  time,  upon  your  oath,  had  you  ever 
lieard  of  the  name  of  mother  Wells,  when  yon 
went  to  this  ciioning  man  ? — I  never  hearasf 
that  name  till  8he  came  home. 

Did  vou  mention  the  name  of  mother  Welk 
to  him  ^ — No ;  I  did  not.  lie  said,  an  oki««' 
man,  1  believe. 

Did  you  mention  twelve  shiilinpi,  nine-penes 
ialfpenny  to  the  conjuror? — I  believe  I  (Kd 
not.  1  was  not  there  long,  for  1  was  all  of  a. 
fright  when  I  was  there. 

Was  there  any  other  pprson  there?— I  n^ 
no  other  besides 'bimself ;  he  let  me  in,  aad  1 
went  by  myself.  _^ 

Who  advised  you  to  go  to  him  ?— A  gnt^ 


F>« 


J^  WdfMl  and  Corrupt  Pe^un^. 


D.  \15U 


■■Ktfr  lliree-pence,  till  1  g^  i 
^^b  I  went  directly. 
mKir  names  wbo  {fftve  }'0»  tbe 
«aii*l  recolJecl  itriy  oftUeu).  1  l>e* 
bwomiin  tlmt  Uv«d  eook  or  ctiam- 
n  bdf^t  at  «  bouse  ovpr  the  waji 
|klri.  Johanna,  betug  out  of  plitce  *, 
ling'  nty  hands  and  teai  uig  about, 
ieu  m4  lo  1^  to  the  cunuing  man. 
^  eioird  of  people  about  tbe  door^ 
lout  me. 

lived  her  as  lost  or  sCruyed :  why 
\  advertise  your  suspicbna  of  her 
irtd  ? — I  oefer  did. 
reniefiiber  vour  aayiti^,  that  you 
^  God,  and  hail  an  autwer  to  your 
i  to  usure  you  tK»t  your  dau4(bter 
^F — I  never  bad^tio  answer,  I 
pijrseir,  and  gfate  up  biltg  in  the 
|ftt  AMermmbary  aod  Cripplegate^ 

Sbeiin^^s  and  Mr.  Wesley's.     1  did 
peciiug  or  a  place  where  J  could 
li^on   ire  you  ?— 1  am  of  tbe 
plaod,  and  was  baptized  at  Crip* 

lot,  about  a  quarter  of  an  hour  be- 
Miigbter  returned,  meotion  to  ibe 
jroa  bad  prayed  for  your  daufi^h* 
^  And  ibat  she  would  return  pre- 
(■aid  to  JameSf  the  la&t  thin^  you 
t  bfCr :  he  said,  he  never  went  to 
rhftl  be  did.  Thi^;  waa  just  before 
I  I  bid  bim  every  night  pi-ay  for 
Ipeated  tt, 

(■lention,  that  you  batieted  your 
mill  be  at  hoEae  that  night  ?-*-No» 

\»  ibia  appretitico  been  ever  ainte? 
»?«r  laid  a  quarter  of  an  hour  out 
I  aioce. 

t  Iteen  any  card  talct-n  to  nrevcnt 
y  bioi,  and  bis  being  aikeo  ques- 
m  wai  a  young  man  came  itnd  &aid, 
plf^a-erowB  to  aee  hUn  ;  I  fvas  told 
M  aobcme  or  skit,  and  thought  it 
WcMlfcoteni,  and  so  it  wai  con- 
Ifcotild  001  be  seen.  There  were 
In  iawy«ri  Ibcre. 
not  itnpoae  onother  person  upon 
d  of  ibe  apprennce? — Yea,  they 
r  ioolbcr  mwytir,  iu&lead  of  hitu,  to 
Ian. 

Uced  biot  out  of  half-a^crown  f>— 
I 

\  ftllir  foor  daog bter^s  coming  in 
•Im  apprentice  wm  sent  for  ibese 
bMood  ber  into  a  chair,  and  went 
H^Httplnediattfly  oacne  in  Mrs. 
^^^^pra,  and  Polly  Lyon  ;  and 
■1B1oit»e  was  full. 
bfi  al  Ibe  room  ai  Wella'a  difl 
m  MWlioa  tbat  night  f—8he  men- 
Idlinoty  iDd  tbe  ufrate  in  the 
iM,4w  took  Iba  gown  out  vi  tbe 


Bid  she  m elation  any  thing  of  tbe  jack* bar ^ 
or  pulley,  or  broken  casement? — No. 

Of  sadtlles,  or  chest  nf  drawers?— No;  she 
raeniiotied  hay,  and  u  pitcher. 

Did  t,lie  mention  bow  much  hay  ?— No, 

Did  she  say  she  lay  upon  hay  ? — She  saic7| 
she  did  now  and  then,  or  always,  1  douH  know 
which. 

Where  did  she  say  the  bay  was  f — She  saidp 
it  lay  of  a  lump  in  a  corner. 

Did  she  mention  it  was  spread  out  like  % 
bed  ?-^No. 

Had  your  daugnter  had  a  stoel,  did  site  say  P 
— It  is  a  constant  method  with  her  to  go  a  forU 
night  without  a  stool  1  have  another  httle  gtrl 
atnome  now,  that  commonly  goes  sometimes 
ten  and  sometimes  eleven  dii\s  wiihoul  a  stool* 

Did  yon  ever  tnenlion  this  to  any  doctof 
before  tbe  Jst  of  January? — When  she  was 
little,  I  menlioned  it  to  Dr,  Catridge,  who  lived 
in  Aldermaobury. 

Did  they  use  to  give  ber  glyslers  ? — No  ; 
they  used  to  give  ber  physic  ;  that  was  wben 
she  was  ill. 

Was  any  method  used  to  occasion  a  stool 
before  the  1st  of  January  ? — No. 

Had  she  her  health  pprfeclty  wellf— Sbo 
bad ;  only  she  was  troubled  wttu  pain  in  ber 
bead. 

Had  she  a  good  stomach  to  her  victuals  ?-*. 
She  had  a  very  little  stomajcb  always;  Ibat 
they  know  where  she  lived. 

Was  she  very  thirsty  ?--Sbe  drank  very  lit- 
tle, without  it  was  a  dish  of  tea  ^  but  not  plenti- 
ful of  that. 

When  your  daughter  came  home,  and  told 
you  this  story,  dM  you  think  it  was  a  wtry 
Mtrange  one,  or  did  you  lictieve  all  she  said  ?— % 
No,  I  did  not  think  it  strange  ai  all.  I  have 
known  ber,  at  home,  to  live  upon  half  a  roll  a* 
dav,  when  things  have  gone  hard  with  me. 

bid  she  tell  you  in  what  manner  she  es* 
caped  f — Yes ;  out  of  a  window,  by  pulling 
down  a  board* 

Did  she  mention  anything  of  a  pent-house  f 
— No,  she  did  not» 

How  did  she  look  wben  she  came  home?— 
Her  face  was  swelled^  bloatetl,  and  black,  and 
sodden,  as  if  it  had  lain  in  water,  and  her  arms 
black.     8he  swallowed  nothing  hardly. 

Did  she  ,eat  any  thing  that  night  ? — No, 
nothing  but  a  little  wine  and  water;  tbatsbe 
could  scarce  get  down, 

^Vere  her  teeth  loose  ? — No. 

Nor  nt)  soreness  in  ht^r  mouth  f — No, 

Do  you  know  Mr.  SSoarrat?— 1  have  known 
him  within  this  twelve^monib. 

Did  Kcsrrat  come  tbe  Oral  night  she  csme 
home? — He  did. 

How  lately,  before  your  dauj^hter  retnraed, 
bad  you  seen  him? — I  never  Iwid  any  acquaint- 
ance wilb  bim  before  that.  1  don't  know  but 
1  miirbt  see  h»m  i^o  by  a  good  many  times  $ 
but  I  never  spoke  to  bim  in  my  lilu  beturc  ;  but 
I  bear  since,  he  is  a  uet{ehlM>ur. 

Dill  be  tell  yoo  he  bnd  formerly  boea  aA 
mother  Weill's  f-*No,  MTcr, 


487J  27  GEORGE  11, 

Did  you  never  Kearliim  say  lie  had  jumped 
out  tii'iUc  wmdow  Iiijii5e!(7--No,  J  nef er  did. 

How  inativ  rooms  liave  yoa  got  in  your 
house  N- 1  rciiitrd  lUf  house  in  my  liusbandV 
tifiu^;  uud  Mnve  he  died,  Mr.  Roherls  lonk 
the  tMo  i^anHii.  ihe  chamber,  aDit  a  Utile  room 
1  httil  belvvr,  uhicli  Up  has  jmtto  his  coiDiiting-- 
liuijKe,  Inr  wh:ch  ht*  paid  'ieveii  puuiid;!  jieryear, 
i^id  iirier  th.i  1  desired  he'd  jiay  ihat  to  my 
Jiiiidloid.     So  J  have  but  fwo  rooms. 

Was  any  thinsj  ineiiiioned  of  Eufield-Wash 
fl»t*  oiy^bf  of  your  d«iij;hler*,  rtturii? — I  don't 
kmiw  v»iien  u  was  tirsl  mpiUioiied.  I  belie* e 
it  was  when  ihey  came  aU  together  the  next 
morniri]jf. 

Was  yonr  apprentice  a  witnew  upon  the 
former  inn  I  ?— -No^  he  was  not. 

Was  lie  sabpcenaM  P — 1  dotiH  kmnv  what  a 
suhpcena  is. 

How  cnme  you  not  to  mention  llie grate,  the 
jiilcJier,  tiur  the  l»ed-govvn,  on  the  trial  ?— Be- 
eau!ic  it  wa&  not  a.^iked  me. 

Was  Mr.  Adamson  present  when  your 
daughter  ineulioaed  the  liJi>  ? — He  did  not  sea 
her  the  first  tii^bt,  nor  till  we  went  down  to 
EutieliJ. 

WasScnrrat  there  wheti  hay  was  mexitioited  ? 
—1  douH  kuoWy  the  house  was  full  of  people. 

Do  you  kuow  one  Mr.  Dod,  a  surgeon  ? — 1 
do  not* 

Did  you  ever  hear  your  daughter  ray,  she 
was  afraid  to  lie  on  hay,  fearing  there  should 
be  a  dead  man  under  it  f — I  never  heard  her 
mention  that,  to  my  knowledg^e. 

Did  v*"u  never  fay  so  to  auy  body  ? — No,  uol 
to  my  l<no>vledi;e. 

Can  your  daughter  write?— She  cau  a  little ; 
it  is  a  sad  hand. 

Can  alie  w  rile  a  letter  well  enough  for  you 
to  find  out  the  meauiugof  U? — Shecau  burdly 
write  at  all. 

Can  she  write  her  name?— -1  beUe?e  she 
can ;  1  have  seen  her  write  it. 

How  luii^  was  she  at  a  wiitlogfachool  ? — 
About  a  qtmrter  of  a  year. 

When  dill  ycMi  see  any  of  her  hand-writing? 
— I  ilo  nut  know  that  1  hafc  aeeu  her  baml- 
wHliiitf  tbeie  six  years. 

'  Lank  at  this  paper  (it  was  a  notice  of  trial 
with  her  name  to  it,  the  name  wrote  by  her  t) 
Is  this  name  her  haud-wrUitig  ? — I  belier e  it  i^ 
ber  scnbbltui,'  like. 

Xyo  you  ihmk^  when  your  dau!*1iter  could 
write,  «he  would  unly  make  her  mark  f^-l  do 
Dot  kuow  lor  that. 

Mr.  Ditry.  I  a^kthia,  my  lord,  because  in  her 
inforitiaiiiHi  before  justice  Fiifidini;,  there  abe 
only  makes  ber  mark  and  by  this  psipf  r  I  aeeahe 
writes  itneiii'eedin;r|fooil  hand.-  -(^'u  E.  Can,) 
How  was  jour  dnu^f  bier's  ht»a*l  covered,  when 
the  come  home  ?**'VVilh  thiii  ra^  upon  Iter 
head,  (holdinif  the  half  bandkeicbief  in  her 
band)  anri  au  old  m^ged  handkerchief  she  bad 
in  her  jiocktt  lied  over  that  ((iroikictnjf  it.) 

Whether  diij  y*iu  not  swear  ujion  the  trial  of 
Mary  Hquirea,  ihi«t  your  dauifuter  had  n  cap 
4^0  wljeu  she  came  Wiuef-»-No,  not  to  tuy 


Trial  ofEUtahelh  Cunnings 


M 


\  recolli 


kiiowledgfe ;  ahe  bad  no  cap  od,  to  my  kooi 

ledue. 

Mr.  Dav\f  1o  ThomatGumfy.       Yoo 
the  evid»*iice  this  woman   haa  gtreri ;  look 
your  minutes,  and  jfive  an  account  i»f  whut 
faaid  iu  her  ei^idence  on  that  (rial,    as 
state  and  condition  in  which  her  daugfhi 
home,  and  particularly  bow  she  was  di 

Gurne^.     She  8»td,   she  had  oath ing- on! 
i^  racrged  bed-gfown  and  a  cup. 

Mr.  Davy,    Read  the  accaunt  she  gfata 
that. 

Gurnrf/.  8lie  $aid|  after  sihe  wai  misM 
from  New -yearns  day^  she  advertised  ber  (bn 
linies.  She  came  back  on  the  day  l>efore  ktai 
Cbarles^B  Martyrdom,  about  a  quarter  nfi 
hour  after  ten  o'clock  ;  she  had  notbmg^  but 
ragged  bf'd-gowo  and  cap  on. 

Mr,  Davy.     Were  these  her  own  word*? 

Gurney,  1  have  tiere  mentioned  ihe  per^ol 
^she,*  where  sihesuid  *  I.'  I  uiti  not  take  upoi 
me  to  say  these  are  the  very  words  she 
u«(coff  or  that  she  made  use  of  no  more 
it  is  my  method,  it  a  question  bringii  out  anii 
peHect  answer,  and  i^  obtii^ed  to  be  a*»ked  at 
ag^ain,  and  the  answer  comes  nrM>r«  stroag, 
take  that  down  as  the  proper  evtdeoee,  i 
.  neglect  the  other :  for  instance,  here  hare  » 
the  course  of  this  trial  been  many  qutsiiM 
asked,  which  hare  not  brought  out  aaj 
factory  answer  to  ihe  counsel,  which,  whu 
asked  in  other  words,  and  upon 
have  produced  more  proper  answers, 
have  put  down.  It  is  not  to  be  exp^ 
should  write  every  unintelligible  word 
said  by  the  evidence. 

Mr,  Dwmf.  Are  you  certain  the  wttncstt^ 
that  trial  said,  she  had  a  cap  on  f 

Gurnty,  She  did,  or  I  had  nut  put  it  dan 
and  had  she  said  a  haodkerchiefi   I  doi ' 
hut  I  should  have  found  it  in  my  minul 

Alice  CotU}/  agaiu. 

Mr.  Morion.  Look  at  this  paper  (wl 
the  first  adveriistemeni  sent  to  the  Dai 
vertiser)  :  is  this  yuur  hand-writing  f^^4 
I  believe  it  is. 

Here  is  the  word  *  tcowerer* 
and  another  word  pot  for  it  over  it ; 
your  hand'writingf — ^That  other  word 
ray  hand-wriimff,  nor  the  *  P.  8.*  at  th» 
is  not  my  hand- writing. 

Look  at  this  other  paper  (which  was  tha  i«| 
cood  adveriitieiiient). — 1  did  not  write  that 
never  saw  it  lufttre. 

Did  you  write  the  firatof  your  own  acoofli 
or  did  any  body  dictate  to  you  ? — Her 
ditl ;  shetidil  me  what  to  write  down. 

Were  you  two  atone  then  ? — I  beheve  tbfff 
were  several  iiranifers  by  at  the  time- 

Alart/  Northu7i  sworn. 

Mr,  Nurts.  Du  you  rememl>er  carrying  Wj 
papers  to  he  printed  in  the  Daily  Advertiser?-  ^ 
31-  Northitn.   I  Ciirrn-d  lb  ret?. 

\\  lio  %roie  I  be  second  ?— {8he  takes  it  in  h< 
hand.)     i  cauiiot  lemeuiber  indeed  who 


Jiif  Wilful  and  Corrupt  Pitjurif* 


A.  D.  I75i- 


[490 


It  1  tkiok  Mm.  Canninif  sent  me  to  the  corner 
«rif(ioM8iie^  al  th«  \\  hile-Linn,  tljere  it  was 


Wk»  wfole  the  third  ?— I  canoot  justly  re- 
'     llwt. 


F^jhMkiiciw 


Cri»i-exiiraincd  by  Mr,  WilU$, 

r>i^  yxm  qri  b\  yoiirsrlf,  or  in  connpany  willi 
fjl  by  niy^etr. 

i if>  |iul  in  these  words,  *  any 

Hi"  .'—The  mother  **«? e  directioiia  to 
dat  the  cuseh^  beciiu«e  iihe  was  a  sober 
^   %nd  we  thought  she  might  be  forced 
iviy  in  ft  co«ch. 

I^  M     Op  eircumitance  of  the  coach- 

iso  I  ?^fiecao8e  hei  mother  had 

keij  '«iM..«.t. ..  Mj  a  (fentlewoman  in  Bishoi^s- 
pir-ilrrel,  il»at  nhe  heard  u  roach  lU-ite  in 
'  i«iM  uh,l  .4  \nin!  »  n*  rson  screatniug  out 
i)y  at  home,  or  she 
,  ,  H  the  coach. 
!^  ou  lUe  backside  one  of  the 
1  yon  cariied  it  to  the  printer  ? 
if  it  WIU9  read  to  me,  1  could 
ttUirifcr.     Ml  IS  read). 

•*  Niit,  It  i»  »uppit«et1  she  was  forcibly 
Hiniiiway  liy  tuine  e?d* disposed  person^  as 
iJlema  bc^rti  lo  tcreek  out  in  a  huekiiey-coach 
hi  Bitbtipsgiile-street.  If  I  tie  coachman  re- 
\  9iiy  Ihtn^f  of  ihe  aflair^  by  giving  ati 
ot  aa  aifovc,  he  khall  be  hiiDdsomely  re- 
1  $ar  bis  trouble.'' 
hL  AVCAaav  This  %vai  wrote  at  Mrs.  Can- 
inij**  KitLiAtt,  1  behcfe^  hut  I  cannot  tetl  by 
*  [  not  mention  about  thecoachoian 

Lion. 

Durmg  the  lime  it  was  in  Mrs. 
iiiji«',  was  itiereauy  Lltmi;  wrote  in 
Lor  £*(k  lU«-  back  of  it,  by  any  body  there  ? — 
,  Ih4?fe  wiii  not* 

r  ,  p,,|  7 — \  can  hardly  read  at  all. 

I  If.)    There  was  nothiog  on  the 
^         ud  It.     (it  ia  read.) 

z  went  from  her  fnenda 
:l\u^.  >^  Ml  day  night,  betwixt 

iie^  fresh  •coloured, 
>,  High  forehead,  light 
It  bti^h,  welUsetf  had  on 
sfuff  gown,   Mack-stuff 
al«   a  white  chip  hat  bound  round  with 
vhitt    aiHou    uud   handkerchief,  blue 
'^  hocK." 

Mitfdtothe  persno  who 

D«i   you    know  who  acratched    out  Ihexe 
^mliP    (»*   Any   ciarhinan,   who  remembers 
\  Ofi  %ijch  B  pi'mutK  ^tnd  Clin  ifive  Ski%y  ac- 
I  wo  guineas 
-igt  in  Atdcr- 

^jt:r,    y^MnU  VkxW   gft'tttly 

%y  )'► 

i  ..<  other  155  all  I  gnve  directions 
^;  I  ittf(»-t  know  wlio  ftrmtchttd  this  out, 

Mr.  iViAfO.      f  dattr  vetiiuri*  to   «Miy    tkiiei   »!• 
liBat^  wjiv  iiiittT,  for  f  ubiierve 

WIm*  ■licrrii  ,^  irid  ftfirlhng  all  the 

^  iktanfk  br/  ti««  |»r»tiied  |iBp«r;  iie  savr 


r^-n. 


there  wivt  some  suspicion  of  a  coachman  put  id  \ 
in  a  stupid  manner^  and  he  began  to  alter  U  on 
the  bark-fide,  as  it  is  put  down* 

Mr.   WiUe^,     Here  is  the  third  paper;  d»j 
you  know  who  wrote  thia?  •  I 

Northan,  1  don't  know ;  Mrs.  Catiniog  sent 
me  to  curry  it  lo  the  prfuler.  *  I 

Mr.  Wilies.     Here  are  two  lines  scratched*'] 
out  iu  this;  how  came  thatP  il 

Nottfian.    The  printer  scratched  them  outf  I 
and  said,  they  were  of  no  osc- 

Mr.  M'tlics.     In  the  iJnrd  letter  here  are  1w»  \ 
tines  scratched  out:  were  they  so  when  yon* 
carried  it  ?  The  words  are,  **  Had  in  her  pocket  ] 
tivehc  shillmffK,  nine-pence  half-penny/* 

Northan.   The  printer  read  it,  and  scratched  ' 
tiiem  out ;  he  said,  it  was  nut  material  to  name 
the  money. 

James  Lord  sworn. 

J.  Lord,  I  ha?e  been  apprentice  to  Eliza- 
beth Canning's  mother  between  six  and  seven 
years.  I  remember  her  being  missing  upon 
New-year*8  day  was  twelre-month,  Mr.  Lyon  i 
came  to  our  house  tirsl  about  uineoVlock,  then 
about  ten,  to  know  whether  mistress  know'd 
whether  Betty  was  cnme  home  to  her  boufte. 
Then  I  wa.s  sent  directly  to  her  uncle  Colley^s, 
at  Saltpetre- Bank.  They  were  all  a-bed  :  Mrs, 
Ctilley  answered  und  said,  They  had  left  her  I 
ahoul  half  an  hour  af>er  nine  o'clock,  upon  the 
other  siile  Aldgate  church,  iu  Houndsditch  : 
then,  after  that,  I  came  home  and  acquainteil 
nnistress  with  it.  There  was  great  inqtiiry  , 
about  the  neighbourhood  all  night  long  almost; 
I  inquired  of  several  ueighb<mrs  thiit  night. 

i>lr.  Williams,  U'hen  was  the  next  lime  yon 
saw  her? — J.  Lord,  On  the  29th  of  January, 
the  uight  before  king  Charles's  Martyrdomi 
about  a  quarter  after  ten  o'clock,  1  was  just 
going  to  make  fast  the  door,  going  to  bed  | 
somebody  hi  led  up  the  latch  ;  it  goes  with  a  bit 
of  string;  mistress  was  dowu  upon  her  kneet 
a-prayiug  to  see  her  apparition,  before  she 
came  in. 

Did  you  see  her  down  on  her  knees  before 
Elizabeth  Canning  came  in  ?— She  was  down 
on  her  knees  some  time  before  ercr  she  lifted  up 
the  latch. 

From  the  1st  of  January  to  this  time,  did 

Jou  ever  see  the  mother  on  her  knees?— Yes, 
have  several   times,  praying  to  God  to  hear  4 
somewhat  of  her,  whether  she  was  alive  ur 
dead. 

This  prayer  that  you  mention,  aud  Ihe  posi- 
l>on  of  he  rbeiug  down  on  her  knees  on  Ihe  29ih^ 
was  that  any  thing  particular,  or  was  it  n« 
iiiore  than  what  she  had  done  before  F — It  was 
the  same  as  she  hsd  several  times  done  aiaco 
bhe  iiHssed  her  daughter  T 

YiMi  were  giving  an  account  that  Elizabelli 
Canning  lifted  up  the  latch,  and  you  was  goin^  a 
tu  muke  f«isl  the  door ;  go  on,  and  give  an  ac^ 
cutuit  in  whiu  manner  she  came.— I  hud  Iht  J 
candle  in  my  hand,  aud  was  gtiing  to  make  fast  , 
the  door,  and  she  came  iu  :  mistress  was  jiray- 
iDg:  mistrcas  asked  who  was  there  f    1  iheji 


» 


iooked  lier  up  in  the  face,  and  thought  it  was 
iocneb<Mly  else  came  to  eiic)uire  tuJiugs  aflcr 
her :  1  iM  not  know  her  at  firKt :  after  1  bad 
looked  b^r  in  the  face  a^aio,  the  fiinrhteDfrJ me, 
becau&e  hhe  lookeil  id  such  ti  itcpIoraUle  cnn  * 
ditiou.  I  said  to  niUtresSi  it  was  Uttty  t  she 
said,  What  Beity  ?  I  $tid»  Oor  Belly  :  upon 
that  itti»tres«  fell  id  a  fit  direcily,  aud  conti- 
nued sn  some  miiitites,  1  caunot  stty  how  loDgf. 

Upon  vuur  oath,  do  you  think  it  \i  as  a  real 
fit,  or  a  !»liaiii  fu  f^^I  never  t$avv  tier  in  a  til  be- 
fore; it  was  far  from  a  slidtu  fit.  When  Etiza- 
b^lLi  Uauning'  came  in»  she  wAn  e\u  almost 
spent  t  \  took  her  hy  the  arms,  and  liel  her 
down  in  a  ciiair  :  she  was  e'en  almoet  dead,  as 
lllack  M  the  chimney- stock,  black  and  bhie  i 
■be  was  dressed  up  with  an  old  bit  of  an  Jiand- 
kcrchief  rnnnd  her  head,  and  an  old  dirty 
rapfg^ed  bi?d-goivn,  what  ihey  properly  call  a 
jacket. 

0id  you  see  what  was  upon  her  head? — She 
JmuI  no  cap,  nor  hut,  nor  stays  on ;  her  ear  was 
cut,  aitd  oil  bloody. 

Did  it  bleed  as  if  it  bad  been  fresh  cut? — 1 1 
was  a-bleediog;* 

Was  there  any  blood  upon  the  handkerchief? 
—There  was  some  blood  upon  the  handkerchief 
^at  was  about  her  head:  she  b»d  an  old 
handkerchief  m  her  hand,  and  a  bit  of  oive 
upon  her  h«ad. 

What  colour  were  the  bandkercbiefs  of? — 
Ooe  was  nhite,  but  1  cannot  say  ibr  the 
other. 

What  condition  did  she  seenr  to  t»e  in  witb 
regard  to  her  lieahb  ? — She  seemed  to  beslino^t 
spent,  just  gone;  and  if  it  had  been  much  fur- 
tuer,  1  believe  $he  muKt  have  drupt  dowo^ 

Who  were  in  the  room  at  that  lime ? — >There 
were  none  but  my  mi^^tiesi^  and  chihiren  in  the 
room.  An  soon  as  my  rMislrei»6  recovered  out 
of  her  fit,  I  was  ordered  by  mistress  (o  call 
Mrs.  Woodward,  Folly  Lyon- and  Mrs,  Myers  : 
ihey  came;  she  began  to  fay  where  she  had 
been  confined  %  the  woman  was  either  named 
Wills  or  Welts,  at  Enfield- Wash. 

Was  this  that  night  f»'lt  wa^  the  same 
ni^bt.  bo  many  people  came  in,  I  waf  nbhged 
lo  keep  the  door^  to  ktvp  people  out. 

Who  asked  her  where  she  had  been? — My 
mifitresi;  and  she  said,  she  had  been  at  En* 
field-Wasb,  and  iieard  the  name  of  Wills  or 
Wells,  she  did  not  know  which  ;  for  she  heard 
Ihem  go  backwards  and  forwards  in  the  house, 
and  heard  Ihem  call  her  by  her  name. 

Did  atie  say  bow  she  came  to  iro  there  P»  I 
was  not  much  in  the  room  all  the  time;  I  was 
oUif^d  to  keep  the  door* 

Then  you  cannot  give  on  account  of  what 
she  said  any  further? — i  know  oolhiog  further 
than  that  she  is  an  honest,  industrious,  sober 
girl. 

Upon  your  oath,  do  you,  or  do  you  not, 
know  wlrere  EUzaUth  Caooinjf  was  from  the 
Isi  of  January,  to  the  day  before  kiny  Charles's 
martyrdom,  or  any  part  of  that  iim«f — No; 
nor  never  set  eyes  on  her,  or  beard  any  thing 
whf  rt  she  was,  tiii  she  came  hoiM. 


Croas-cjEunined  by  Mr.  GoMaym, 

What  time?  was  you  sent  to  Cullejr^  bow* 
lo  inquire  for  the  gtrl  ? — h  was  between  ekiea 
and  twelve  at  uight  when  I  got  there. 

(low  came  you  to  sit  up  so  late  that  nigbt  f 
— Mr.  Lyon  caine  to  our  huuse,  as  nigh  as  I 
can  g'uesa,  between  nine  and  ten,  (which  is 
^enerstly  about  the  lime  we  gfo  U^  LkmI)  mi 
asked  mistress  if  she  know'd  any  thing  of  her 
daui;hter:  ^he  sani,  Nn^  she  thought  she  b&4 
litfeik  come  bomb'  lo  his  liouse.  Thenejtt  moniK 
in^  mistress  an<l  I  both  went  to  Mr,  Cohey^i 
to  inqiiiie. 

Did  you  not  g^o  lo  BIr.  Lynn's  £rit?—l  thiait 
1  did  not 

What  time  in  the  morning  dul  yon  go  lo  If  rk 
Colley*s? — I  believe  we  went  out  about  hi 
o'clock. 

What  lime  did  you  get  home  a^pilo? — Ifc^ 
lieve  about  ten,  and  I  went  out  to  inquire  aiier 
her  sixain ;  1  went  one  way,  and  mistress  umk 
Uier,  tu  the  neiuhbours about. 

To  vdmt  pUces? — 1  cannot  tell  all  tki 
places;  1  did  noi  go  to  any  place  in  particn* 
lar. 

Whpre  did  y  nur  mistress  go  ? — 1  cannot  l«D; 
she  did  not  tell  me  ;  she  was  just  like  a  mad 
womzm. 

Did  she  order  you  to  go  to  any  |>Iace  ?— ? 
had  n<i  directions  from  her  to  go  to  any  plwt 
in  pavttcular. 

^Vht^n  did  you  go  lo  your  work?*— I  did  bM 
go  to  work  till  alter  diuticr. 

What  time  do  you  generally  dine ? — AImiI 
one  o'clock. 

Was  your  mistress  at  home,  when  you  caoi 
home  Irom  work  ? — I  donU  know. 

Was  the  door  open?-*-lt  always  is. 

Were  you  in  the  room  when  your  _. 
first  kneeled  down,  the  ni^^ht  the  girl 
home?— I  was* 

Dill  she  not  adrise  you  to  kneel  down?— Sb* 
did  not. 

What  were  you  doing ?--*l  was  prayujgto 
God,  in  my  heart,  that  sue  might  hear  of  W* 

What  parlieular  conversation  |)assed  betwsa 
you  and  your  mistress  that  night,  before  ikt 
kneeled  down?  -I  cannot  say  ;  t  did  not  tdki 
notice  of  all  the  words, 

Dit^l  she  say  she  had  more  reasons  for  pfif* 
ing  that  night,  than  at  any  other  litne? — N«i 
she  did  noL 

Upon  your  oath,  whether  site  did,  before  tilt 
time  she  kneeled  down,  say  she  should  see  bif i 
*^No,  she  did  not. 

Did  she  say  she  bad  any  reason  to  expcdt 
her  that  week?^ — No. 

Did  she  say^  she  had  some  knowledge,  «t 
somebody  had  told  her  she  would  come  hooie 
that  week? — 8he  did  not  e.'vpect  tier  cumiiif 
home  thai  nighty  or  that  week,  no  more 
any  other. 

bo  you  know  any  thing  of  your  misl 
going  to  a  cunning  man  ?-- 'I  know  notbi 
all  about  it  i  she  did  not  acquaint  me  wiik  it 

What,  noi  of  going  to  a  conjuror  f«-|l»i 
she  does  not  acquaioi  me  with  all  her 


^WU/ufi 


Did  ^oit  B#f«r  htfir  lier  mtfitioti  the  had 
|DM,orwfiuy  go,  to  a  cunning  man  P— No. 
M  jou  ii«?er  hear  jonr  miarees  relate  a 
i#r  viMDo  »li8  biiil  had  ?«Na,  nol  to  my 


4ft  yoo  imtt  ? — I  might,  or  ntigltt  oot  hear 
It  I  1  emtiot  tell  ;  the  care  of  m^  miBlress's 
tcwmaj  Um  iipou  m«,  tvod  I  h^t  e  olbcr  Ibiogii 

Gift  mt  ft  ilireet  tnfwtr,  whether  you  ever 
ly  codl  tninsa<3tio<i  concemmg-  your 
OMVtM'H  gvifig^to  t  conjuror,  or  having  been 
%em  f — Tbert  wtt  Home  talk  of  a  cunoing 
mm\  but  1  Uid  not  knonr  u^hcthcr  the  bad 
bica  wiiJi  ooe. 

If  hat  waa  taiil  of  the  cuoniDg  raati  ? — I  do 
Hi  k—tp :    I   reititniljer  th«re   was  mention 
«if  m  coonifigf  niau  that  lived  in  the  Old* 


i  Perjury.  A*  D.  175*.  [43* 

Bow  did  ahe  a{i|ieftr  aa  to  her  face  f — She 
was  black  and  htiie  on  her  face  and  anut ,  Ukt 
the  stock  i\\h  chimney. 

Did  sthe  look  an  if  aha  had  been  beat  P — She 
did,  just  in  the  same  manner;  Ykut  fiie«*  Aod 
hand»  would  fsotn^rt,  for  blockne^,  tu  a  hat 
almost* 

Had  she  hiack  ejea? — I  did  nol  acne  tint, 
any  more  than  other  persons  are. 

Did  the  hUck  and  blue  aecm  to  be  bruiseaP*^ 
The  CO  hill  r  of  her  Eeah  waa  next  a-kin  to  the 
colour  uf  beaiin}^, 

flow  long'  did  she  continoe  so  black  and  bloe  f 
— 1  was  kr^it  out  of  tiie  rooni,  and  a  doctor  o|- 
tPDdcd  her ;  it  wai  not  ao  i^ropcr  for  me  lo  go 


wLi 


WteA  ei»«tn^  man  was  that  that  lived  in 
ibt  CA^Bti&ey  ?— He  used  to  tell  foriunf  $, 

tl4kw  OAe  this  cutmtni;  man  to  he  men- 
liMvA ^-^llalieve  mistreaaor  somebody  did  go 
li  iim^  bm  I  %\q  not  know  who. 

fW  wteat  did  they  go  ?— To  tienr  ioinewhul 

Oil  jr*D  bear  thia  befort  or  a(l«r  the  had 
iMlMt  f — 1  btlitve  it  waa  afler 

WkMn  iiil  yon  hear  speak  of  it  f"- To  the 
W«  of  my  remembrance,  it  was  my  mistress 


Wte  ettyveraiaoQ  ()fi9sed  upon  that,  when 
fov  miitftai  firat  informeil  you  of  itf— I  did 
ra  urord  wIiaI  he  said  to  her;  t  beard 
\  ibaa  thiit»he  hud  been  there. 
lioy  body  by  at  thnt  »ime?— I  cannot 
\  were  in  «he  house  at  the  time,  or  who- 
I  waa»  or  was  not,  any  hotly  there  but 


Ifto  not  inquire  wbtUbe  cunntng:  man 
Iherf— Ni». 

you  ever  bear  tuy  bo<ty  else  in  eonver* 

speak  of  what  was  done  at  this  cun* 

llfto*0? — No,  ttor  hnev    I   heard  to  this 

1  always belieted  hecouhl  not  tell* 
ijw^  ev#r  hear  m  ho  your  yciung  intstresi 
Iwilb^     '       I         T  did. 
r  •  r <  n  old  woman  ? — No. 

rynu  fUM  iiriini  ytrur  mist'^ofS  say  any 
ilwst  IIP— I   have  heani  he    ^ay^  the 
aomt    rakish    young  gentleman    had 
ber  up«  and   so   carried   her  uwny ; 
I  have  heard  her  sty,  ahe  suspected  she 
liDorderiKl^ 

\  was  vour  own  opinion  f— I  could  not 

^^    at  to  think. 

^Vid  yuu  ever  hear  yoar  mlalress  say  she 

'^  taken  tway  la  a  coach  *— No,  I  tiever  did, 

Ai  to  the  night  she  eame  In,  you  tay  the 

^^  '  '!  ui«  latch,  and  yotir  aoistress  felt 

Sbi  .\v  carae  you  not  to  be  affrighted 

»kt3tli»  cmiB«»in7 — Ah  »»tjou  as  she  came  in, 

^  IIni  hloofl  iif  my  l»ody  was  in  my  face ; 

^  wbiB  I  rtOEwmd  myielf,  I  &fltid»  it  wts  our 

Nly. 

the  thoughts 
,  never  was 


'WWt  ynv  ever  affriffhted  at 
^ittpftrilBtQ  before  f-^No,  1 1 


there. 

Can  you  remember,  the  day  she  went  to  ber 
unde'ii  to  dinner,  wh^it  time  slie  was  to  have 
come  back  agfaia?— Yes;  towards  the  eveii<i' 
iogr>  and  ^o  wuli  her  mother  and  buy  a  cloak. 

What  time  did  she  call  at  your  bouse?*— 
About  eleven  o'clock. 

When  she  cjtme  home,  what  had  she  ob  aa 
to  clothes  P — She  had  a  piece  of  an  old  hand- 
kerchief about  her  head^anda  black  petticout, 
I  hdicve  an  upper  one;  I  think  it  was  t)ie 
same  she  went  away  with,  ^ihe  had  nothing 
over  herbutthntjuclo^U 

How  many  petticoats  bad  ahe  to? — I  cin'l 
say  that. 

Did  the  petticoat  look  dean  or  dirty  P — It 
looked  as  it  ^t  had  been  draggled  in  countrj 
dirt,  with  dirt  and  mod. 

How  do  you  know  the  difierenee  between 
country  dirt'aud  London  dirt? — Because  Lon- 
dott  dirt  is  black,  and  the  other  lighter. 

Did  you  see  the  ear  was  fie^h  bleeding  ?-^It 
was. 

Have  you  ever  beeti  esra mined  before  yon 
came  into  this  court? — No. 

Did  vou  ever  make  your  alBdaiit  lieforef 
— No ;  1  never  was  examined  upon  oath  before. 

Look  at  this  bed-gown. — This  is  the  t>ed* 
gown  she  came  home  in,  the  day  before  klo^ 
Charles's  martyrdom. 

Did  yi^u  ever  see  it  before  yo«  saw  it  apoft 
ber,  the  night  she  came  home,  on  the  39tb  of 
January  ?— No  ;  1  never  did. 

is  it  your  mistress's  ?-*No ;  I  am  positive  it 
(s  not* 

What  reason  have  you  to  nay  that  is  the 
hed-gown  ? — It  looks  like  it ;  1  am  almont  po* 
flitive  toM.^  1  saw  it  the  next  day  al\er  it  was. 
pulled  off. 

•  *'  Wehs  of  Hoth  and  wearing  apparel  ire- 
articles,  the  identity  of  which  it  is  ofien  dilB* 
cull  to  establish.  A  remarkable  instaticeof  thff* 
occurred  some  yeur^  ft*jfo,  in  the  trial  of  W*el>- 
ster,  on  the  north  circuit,  for  housebreaking 
and  theft.  The  girl,  whose  chest  had  been' 
broken  open^  and  who«e  clothes  had  beeti 
carried  off,  swore  to  the  only  article  futind  ht 
the  prisoner's  possession  and  produced,  vi*.  a 
white  gown,  as  beint^  her  property.  Khe  had'' 
previously  descrihtd  the  colour,  ouahty,  end' 
fiishiou  of  the  gowu,  and  they  all  seeoted  It 


tl95]  27  GEORGE  IL 

Did  yoa  m&ke  your  inquiry  my  other  day, 
after  the  second  day  she  was  missing  ?— No ; 
I  kept  on  with  my  mistress's  business. 

Upon  your  oath,  do  you  belie?e  your  mis- 
tress did  know  where  she  was?— Upon  my 
eath,  I  am  positi?e,if  my  mistress  had  known 
where  she  was,  she  would  ha?e  fetched  her 
liome,  wherever  she  was. 

Did  your  mistress  say,  she  expected  to  see 
her  on  the  Sunday  night? — No,  she  did  not. 
•    In  what  position  was  she  when  the  girl  came 
in  ? — She  was  on  her  knees  by  the  beo-side. 

J}\d  you  e?er  hear  she  expected  her  home 
that  night,  or  was  tokl  so  by  the  cunning-man  ? 
—No. 

Robert  Scarrat  sworn. 

R,  Scarrat,  I  heard  Elizabeth  Canning-was 
eome  home  on  the  29(h  of  January,  at  night ; 
and  as  I  had  ne? er  seen  her,  or  spoke  to  her  in 
my  life,  to  my  knowledge,  I  went  in  out  of 
cnriositv  to  see  her. 

Mr.  Morton,  Had  you  heard  before  she  was 
missing  ? — R.  Scarrat.  I  had,  the  very  next  day 
afler  she  was  missing. 

What  passed  after  you  went  in? — I  was  there 
some  time  before  she  spoke  a  word.  Mr. 
Winllebury  came  in  after  roe :  he  said,  Bet, 
how  do  you  do  ?  she  said,  O  Sir,  you  don't 
know  what  I  have  suffered.  He  asked  her, 
where  she  had  been?  She  said,  she  had  been 
on  the  Herlfordtfhire  road.  He  asked  her,  how 
she  came  to  know  that?  She  said,  she  saw  the 
coachman,  that  used  to  drive  her  mistress  into 
Hertfordshire,  go  by.  She  was  asked,  how  far 
she  mifj^ht  have  been  in  the  country  ?  She  said, 
it  might  be  about  nine  or  ten  miles. 

Did  she  give  any  reason  for  that  ?— I  did 
«ot  hear  her.  1  asked  her,  if  she  knew  the 
name  of  the  person,  and  said,  Til  lay  a  g'ttinea 
to  a  farthing,  she  has  been  at  mother  Wetls^'s, 
for  chat  is  as  noted  a  house  as  any  is :  she  said, 
her  name  is  mother  Wills  or  Weils. 


Trial  ofElizabeih  Cammngj 


D 


correspond  with  the  article  produced.  The 
house-breaking  being  clearly  proved,  and  the 
goods  as  it  was  thought  distinctly  traced,  the 
proof  was  about  to  be  closed  by  the  prosecutor, 
when  it  occurred  to  one  of  the  jury  tu  cause  the 
girl  put  on  the  gown.  This  appeared  rather 
a  whimsical  pro|>08al,  but  it  was  ac^recd  to  by 
the  Court,  when,  to  the  surprise  of  every  one 
present,  it  turned  out,  that  the  gown  which  the 
girl  had  sworn  was  hers, — which  corres^ionded 
with  her  description,  and  which  she  said  she 
had  used  only  a  short  time  before,  would  not 
iit  her  person.  She  thou  examined  it  more 
minutely,  and  at  length  said,  that  it  was  not 
her  gown,  though  almokt  in  every  respect  re- 
sembling it.  The  prisoner  was  of  course  ac- 
quitted ;  and  it  turned  out  atWrwards,  that  the 
gown  uroduced  belonged  to  another  woman, 
whose  house  had  been  broken  iuto  about  the 
•ame  period,  by  the  same  person,  but  of  which 
no  evidence  bad  at  that  time  been  obtained." 
Bumetl  on  the  Criminal  Law  of  Scotland, 
p.  658. 


Was  that  answer  after  you  hati  said  yojD  ym 
lay  a  guinea  to  a  farthing  she  had  been  at  moi 
Wells's  house  ?— It  was.  1  asked  her  aboot 
house :  she  said,  she  had  been  eoofioed  i 
longish,  darkish  room,  and  saw  the  ooaehi 
through  the  crack  of  the  window,  and  that  tl 
were  tome  boards  nailed  over  it.  I  aaked  I 
whether  the  window  fronted  the  road  ?  She  s 
it  did  not ;  and  when  she  got  out,  sha  toi 
down  a  little  lane,  and  thei|  turned  into 
fields  ou  her  right  band.  I  atkcd  her,  if 
took  notice  if  any  of  those  fields  were  phH)^ 
ed  up  ?  She  said,  she  believed  there  was. 
asked  her,  when  she  was  in  them  fields, 
which  hand  was  the  road  ?  She  said,  oo 
right  hand  coming  to  London.  I  aaked  I 
when  she  came  out  of  these  fields,  wlietbcr 
observed  coming  over  a  little  brook  ?  She  fl 
she  did.  1  asked  her,  if  she  thought  it  m 
tan- house  ?  she  said,  she  believed  it  wac 
said,  it  was  Mr.  Neal's,  a  tanner,  at  Enfii 
Wash. 

Did  you  know  that  road  ?•»!  did  very  wi 
and  thatthere  was  such  a  house,  and  what  aan 
a  character  it  bore,  that  it  was  a  very  bad  boa 
^{he  said,  she  met  a  man,  and  asked  ber  raad 
London.  She  said,  she  had  been  nbbed,  ai 
descril>ed  the  person  that  cut  her  stayaoff  to 
a  tall,  black,  swarthy  woman. 

Who  asked  that  questiuu  ? — It  was  aski 
but  1  can't  tell  by  wbom.  I  said,  1  had  wt 
mother  Welis,  and,  to  the  best  of  my  knoi 
ledge,  that  description  did  not  answer  to  her. 
fiid  she  tell  you  any  thing  else  ?— She  ssi 
there  were  two  young  women,  one  with  blii 
hair  and  the  other  fair,  stood  laughing  at  be 
while  her  stays  were  cutting  off. 

How  did  she  appear  to  1m  for  health  .'—SI 
appeared  to  be  very  weak  and  feeble,  sittiogo 
a  little  stool :  to  the  best  of  my  knowlfdgi 
she  had  on  a  dirty  bed-gown  and  black  petd 
coat,  and  a  foul  cap  of  her  mother's.  I  wet 
down  to  Enfieid-Wash  with  Mr.  Wintlebar 
and  Mr.  Adamson  on  the  Ist  of  February :  th 
people  were  all  taken  into  custody. 

Did  she  give  an  account  of  any  particuk 
things  where  she  had  been  confined?— Sh 
described  a  black  jug,  broken  about  the  oedi 
that  might  hold  about  four  or  five  quarts 
and  she  said,  she  believed  there  might  be  aboo 
four  quarts  of  water  in  it,  and  the  jug  wa 
lel't  in  the  room  when  she  came  away ;  tbi 
she  had  some  bread,  hut  it  was  so  hard,  ib 
was  forced  to  dip  it  in  the  water. 

Who  was  the  tirst  that  went  into  the  room 
—  I  believe  several  of  her  friends  had  been  tf 
in  the  room  before  she  came  down. 

Upon  your  oath,  when  did  you  see  tfc 
black  pitcher  first? — Upon  my  oath,  I  hi 
never  seen  it,  till  I  saw  her  fix  upon  it  in  tli 
room. 

Was  you  there  when  she  was  in  the  parhw 
— She  was  brought  into  the  parlour,  suppocli 
by  two  men.  1  was  in  the  parlour  then.  H 
made  them  all  sit  down,  that  is,  the  people  ih 
were  taken  up.  The  room  was  full  ^  n^gl 
hours  and  people  that  went  down : 


Jbf  Wxiful  and  Corrupt  Perjury* 

Wdb  «m  Ml  tbe  k\\  liaiid  of  ihe  fir€,  and        Mr.  Morton 

f%^\xm  littini;  by  the  6re,  with  tier  head 

tog«iher,      Catifiifig    looked  very 

I  •!  ber;    aind  itliether  any   bady  bid  tier 

kok  un»  I  cannot  »ay ;  but  she  fixed  upon  Iter, 

WtA  aid,  Ttiat  \%  tlie  nrainan  that  cut  off  my 

•tiri,  r^^  Mo  ber.     The  gypsey  got  up, 

iod  Aim  viddjMn,  doti*!  swear  my  pre- 

OMii  life  auay.     Canning  said,  I  know  you 

ftry  weil«  I  ktww  ynu  tcN>  wetl»  to  roy  sorrow. 

SU  ir»  Asked,  if  ^be  knew  any  Inxly  else  in 

tm  room,  aad  if  she  knew  a  young  maOf  wbicb 

mm  O«org«  t|^oire9  ?   She  said,  she  did  not 

mj  abe  £d«      She  pototed  to  the  gypsey's 

*'      '^    y  ititi  Virtue  Hall,  and  said,  the  y  ouu(|f 

^  mtttning  tbe  gypsey'^  daughter,  \\a& 

INI  ibe  dresser  when  her  stays  were 

,  uui  Virtue  HaU  was  standing  by  her, 

went  into  the  room.    She  was  then 

onM  up  the  stairs  that  front  the  door,     I 

mm  %m  in  one  room,  but  did  not  in  thelfirst  she 

WMl  Htts ;  that  was  ihe  last  she  went  into  there. 

rwiiHL  lirvti  stairs,  she  said,  there  wos  ano- 

tbtr  rocBi  j  when  she  came  into  the  kitchen, 

tkM  4mt  <ra»  shut ;    she  said.  Through  that 

torii  the  place  nhere  I  was  confined  ;  then 

ikfJoorwas  opened  and  she  i^eiit  up. 

Wmjr^a  one  of  the  first  that  went  up? — 
1fOi  J  mm  0Ot*  I  saw  ber  there  with  a  bfack 
jigiB  ber  timnd.  She  said,  that  was  in  the 
rotiB.  Shr  looked  round,  and  found  a  tobacco* 
Moli,  Mi<l  said,  that  was  there  when  she  was 
tlim,  8h«Mid»  an  old  cask  and  a  saddle  or  two 
AtbftlbiTc. 

.  Wn  ahc  potrtif e  that  wa«  the  place  ? — She 
]  to  the  window,  And  said,  she  broke  out 


go  before  justice  Tash maker  f 
St  accuuni  did  she  g^Te  there  ?— I  did  :  she 
I  the  sAme  Mcount  there,  to  the  best  of  my 
skdge,  as  she  did  here.  When  tbe  people 
tire  taken  up,  Genrgc  Sc^uires  bad  a  great- 
cut  on,  and  a  nloucbed  hat;  he  pulM  the 
Oit  and  h^t  cdf;  he  was  made  to  put  them  on 
«|iio  in  ihe  huuie,  before  be  got  into  the  cart 
h^  before  the  justice  ;  but  Canning  would 
iMswcftf  lf>  him. 

Rad  h«  the  bat  »fld  coat  on  at  the  justlce^s  P 
-Be  hail. 

Upon  your  oath,  did  you  not,  from  tbe  1st  of 
Jtanary  to  ibe  '19th«  know  where  she  wasP — 
Itetrr  sew  hrr,  to  the  best  of  my  knowledge, 
ilftbtcamc  hum«. 

Ihi  yon  know,  iit  ibis  hour,  any  body  that 
4ms  kciow  wh«*re  6he  was  P— No,  I  do  uot. 

}wryma%^  Which  window  did  she  point  lo, 
tWrt  tbe  amid  she  got  out  at  f — ikarraU  To 
"^liod  wbdowp 

CroM- examined. 

Mr.  D«py.  I>o  ynu  know  W^ells^i  bottse  ?*- 
Jbrral.   I  do,  hv  pasaiug  and  repeasing. 
Itr.  Z>aiiy.  lliid  you  efer  been  in  ber  bouse 

IrfitrpJfltioa  >  17  53? 

^'  L^ti  you  should  uti^ma* 

*-  :  mall  go  undiscovered, 

V .    ,'u .  1  iiaf  c  been  there. 


A.  »•  1754v  [4» 

How  long  ago  is  it  that  yoit 
was  in  her  hotise  ?>— Scarral,  It  is  some  yearn 
ago. 

By  Mr.  Davy, 

Were  you  erer  in  tbe  bay-lo(\  ? — 1  nercr 
was. 

Are  you  ?ery  certain  of  that  ? — I  am. 

Did  yon  oe?er  jump  out  at  a  window  in  Ibal 
room  ? — No,  1  nefer  did ;  I  doo^l  like  jumping 
so  welL 

Where  did  you  live  when  you  went  there  f 
— I  was  then  servant  to  Mr*  Soee. 

How  often  was  you  there,  and  when  ?— I 
was  there  once  or  twice,  about  four  or  fira 
years  a^o. 

With  whom  P — With  two  or  three  friends. 

Men  or  women? — Men. 

Were  there  no  women  ? — No. 

Did  you  never  take  a  girl  there  ?— No,  Defer 
in  my  hie. 

Were  you  never  there  with  s  woman  ?^ 
No. 

When  was  tbe  first  time  you  was  in  the  hay- 
loft ? — 1  never  was  in  it,  till  the  time  1  went 
down  with  the  girl  and  them. 

What  rooms  in  the  house  had  you  been  in 
before  r*-Tbe  kitchen  and  parlour,  aud  no 
other. 

Were  you  ne^er  above  stairs  ?-*-Nu,  never 
before  in  roy  life  till  I  went  down  wiih  them, 
and  they  were  taken  in  custody.  I  never 
knowed  there  was  such  a  room  as  the  place 
where  the  prisoner  was,  till  then* 

Were  there  a  good  many  people  in  tbe  room, 
when  the  girl  told  you  this  ? — Yet 

How  came  you  to  pitch  upon  the  bouse  of 
mother  W>lls  ?• — 1  judged  it  might  he  that 
house,  because  f  did  not  know  any  other  bouse 
ou  that  road  so  likely. 

Did  you  make  that  reply  before  you  aaketl 
any  questions? — T  said  that,  when  she  said  she 
bad  been  on  the  Hertfordshire  road« 

And  would  you  then  have  laid  so  much  odds  ? 
— Thoujch  I  said  it,  1  don*t  know  that  1  should 
have  laid  it. 

What  name  did  she  say  she  heard  men- 
tioned ?--- She  said,  she  b^ard  the  mistress  of 
tlie  house  called  WiUsor  Wells. 

Was  the  apprentice  by  when  she  mentioned 
this  ? — 1  don*t  know  that  he  was.  Mr.  Wintle* 
bury  was  the  first  person  that  she  spoke  to,  as  f 
heard.  J  was  in  the  mom  sometime,  aud  some 
people  spoke  lo  ber  ;  but  she  spoke  to  none, 
oefore  she  did  to  him. 

Had  you  ^ny  acquaintance  with  Mrs*  Can- 
oincr.  or  her  daujilitei  P^No,  I  hsd  not. 

What  led   you  to  go  to  Conning'a  house, 
having    no    acquaintance  ?— A    msid-sertant 
came  into  the  house  where  I  bethk-d  and  board* 
rd,  and  said,  Betty  Canning  is  come  homr^^ 
Betry  Canniir;;  is  come  home!  which  was  the' 
caui^e  of  my  ifoiiif;  there. 

Then  you  meniioned  several  tbingt  to  btr 
^ttry  familiarly  ? — 1  did. 

What  wi^re  her  answers  to  them  ?-— Her 
snAwers  were, — ye»,^she  beltcved,— or,  she 
was  vttre^  or  to  that  effect. 


499] 


27GBOHGE  IL 


TfMiifEiuahilk  Cmtmitf^ 


[500 


Old  yoa,  io  the  eBamimlioD  of  Iblt  firl,  re- 
«ollcet  as  BMoy  partteukin  of  ibo  bouto,  and 
sbout  it,  M  poiiiUy  you  could  ? — I  did. 

Were  you  able  to  deacribe  the  bouse,  tbe 
id,  tbe  fMod,  Ice. — I  did  not  ■enl 


DfioB  tbe 
pond,  nor  notbiog  in  ibe  bouse.  I  nientioBcd 
tbe  Uooer's  bouae,  and  a  little  bridge  tbat 
erossea  tbe  brook  ;  and  aahcd  ber  about  tbe 
read  and  tbe  field,  wbcther  it  was  phnig bed 
up. 

Did  yaa  mentioB  one  single  pnrtienlar,  to 
nhich  she  answered  in  tbe  nrntive?— Tbat 
quextion  is  answered ;  she  said  tbe  rand  was  so, 
and  tlie  fleMii  so. 

Did  it  never  oceur.to  yon  Io  ask  bar  about 
any  thing  tbat  you  knew  was  not  there,  in 
order  to  be  better  satisfied,  whether  she  had 
been  there  ?— 1  don't  know  I  tbeugbtof  soeb  a 
thing. 

How  aoon  after  she  was  taken  out  of  the 
ehaise  was  it,  tbat  you  saw  ber  nt  Enfield- 
IV ash  .'—It  was  in  tbe  room  where  the  prt- 
apners  were. 

When  she  eanM  into  tbe  kitchen,  did  she  im- 
inediately  fix  upon  tbat  door,  and  say,  Tbb  it 
tbe  door  of  tbe  room  wherein  1  was  eonflned  ? 
— 8be  said  tbat  herself ;  nobody  spoke  a  wonl 
to  her. 

Suppose  she  had  been  in  tbe  kiteben,  and 
tbe  door  open,  might  she  not  be  more  positife 
than  if  it  was  shut  f— More  positiTe,  to  be  sort 
•be  mast  be. 

If  you  bad  been  with  ber  in  tbe  kitoben  be* 
ibre,  and  the  door  had  been  epen,  and  she 
bad  not  fixed  upon  tbe  room,  and  aRer  tbat 
bad  been  earned  to  all  tbe  other  rooms  in  Ibe 
bouse,  sbouM  you  not  have  doubled  of  her 
f  eraffsity  ? — 1  don't  doubt,  but  she  would  ha? e 
fixed  upon  that  room  at  first. 

Attend  to  the  question.  Supposing  it  bad 
bappefned,  as  1  have  pot  it,  whether  that  would 
have  led  you  to  doubt  hersinoerity  ? — I  shooM. 

Did  you  bear  what  she  said  before  Mr.  Al- 
derman Cbilty  ?— 1  did. 

Did  she  gire  the  same  account  on  tbe  trial 
of  Squires,  she  did  there?— She  did,  Io  Ibe  best 
of  my  knowledge ;  but  I  cannot  remember  in 
particular. 

Did  she,  before  the  alderman,  mention  any 
thing  of  passing  through  Hishoitsgate-street  f 
— K(s  not  to  my  remembrance. 

Do  you  remember  she  told  him  of  four,  ^:w^^ 
wr  six  itieces  of  bread,  or  twenty-four  P— 1  don't 
remembtr  any  particular  pieces  of  bread. 

Do  30I1  remember  any  question  of  an  old 
atool  ? — Not  to  my  knowledge. 

Nor  an  old  Ubie  P— No. 

Nor  old  pictures  over  the  chimney  ?— No. 

Nor  bay  ? — No,  not  to  my  knowledge. 

Can  you  remember  sll  the  partiottlars  of  her 
asaking  her  escspe  ?— No,  1  cannot. 

Were  you  examined  as  a  witnsaaon  the  trial 
pf  Mary  Squires  ?— I  was. 

1 11  tbe  evidence  you  gave,  did  yen  not  swear, 
tbat  you  bad  heard  ber  examined  befiire  the 
aitting  aMerman,  and  tbat  befiire  him  she  had 
giren  the  iame  aoocwat  •»  •»  that  trial  P^H 


ibc  liM^ 


eorroboraledtotbabsatof  my  kttowMgv.    I 
•wore,  to  tbe  beat  of  my  knowMge,  aba  did. 

Did  you  do  tbat,  in  order  to  wnBke  ber  wbato 
story  the  better  to  be  belieredr-^Iapofc«tatha 
best  of  my  knowledge,  and  ao  1  do  nbar. 

Did  you  aoAeo  yoor  evideaee,  by  MiyHig 
you  belicired  P-^I  don't  remeairber  tbat  I  apdba 
genemHv  to  it.  1  eannot  keep  MMb  iti'mga  bl 
my  bean  now. 

Did  you  ^er  hear  ber  neBtm  %mj  bay  fa 
your  lite  f— I  never  did. 

Did  yen  not  bear  ber  say  vpaB 
there  was  hay  in  the  room  f— IdaoUr 
she  did. 

Were  you  in  eeort  tbe  whole 
trial? — I  waa. 

Have  yon  read  the  i 
No,  1  have  not. 

Did  you  bear  ber  say  before  the  1 
bow  she  made  her  eeeape  f— I  did ;  In  | 
out  through  a  window. 

As  you  were  in  conrl  all  tbe  ttaae,  ysNi  wM 
bear  what  she  said  uf  the  nraancr  m  Mildig 
her  eaeape.-- She  gave  tbe  same  ac<lMmiih#iai 
before  the  alderman,  to  the  beA  of  my  bMW>i 
ledge.  Then  I  remembered  her  tmitrnm  be- 
fore the  aklerman  a  great  deal  belteribiM  I  tmk 


now. 


Do  yoo  think  too  eouM  then  ba^  nfttkU 
every  particular  f--l  eannot  ear  f  csmM|  I 
eorroborated,  to  tbe  beat  of  ay  knowledjgp. 

Was  not  tbe  ev idenee  she  gave  e»  tbe  tfU 
eentradictory  to  what  abe  gave  before  the  aMid 
alderman  ? — I  cannot  exactly  rcmeasber  \L    * 

Did  you,  or  did  you  not,  teH  Mr.  AMnmai 
Cbilty,  the  person  she  described  eovid  Bat  M 
mother  Wells  ?— 1  did  not  mentioD  aacb  a  tbii^ 
to  him. 

Did  she  take  tbe  person  thatent  iMralayi 
off  to  be  the  mistress  of  tbe  house  ?— «lbe  did. 

Did  she  know  who  waa  tbe  mistreaa  of  At 
house? — No,  she  did  not. . 

Did  yon  know  there  waa  a  warrant  granMI 
—  I  did. 

Against  whom  was  it  granted  ?— AgBU 
Mrs.  Wells  in  particular,  for  cutting  off  Im 
stays. 

Were  you  not  sure  it  could  not  be  aaetliai 
Wells,  accordiug  to  Canninn^'s  description  f-: 
No,  I  was  not.     I  said,  it  might  not  be  ber. 

How  came  you  to  remember  evenrpartiai 
kr  of  what  was  said  at  the  house  of  Canning 
and  forget  what  passed  before  tbe  aldemaa  P*-* 
We  were  a  great  while  before  the  aldenBaa 
and  I  could  not  contain  it  in  m  v  bead. 

Did  you  know  the  ouUide  or  WeHa*fe  tMoae: 
—I  did. 

Did  you  not  know  whether  there  wa»  a  peM 
house,  before  you  went  down  ?— I  did  not. 

Did  yon,  or  did  you  not,  before  Mr.  Alder 
man  Chitty,  hear  ber  say  she  by  on  bar 
boards  ? — She  said,  she  hatf  no  bed  to  lieaM 
I  don't  remember  bearing  ber  aay  dbe  dit  li 
down. 

Do  yon  remember  yott  beard  beraajtWi 
waa  a  grate  m  Ike  room  ?—f  #»  oat 
that. 


Ml] 


Jmr.  WiffulaiUl  Corrupt  Pmjury. 


A:  D.  1754. 


ffiOf 


Did  yio  bear  bar  BMation  a  laddle  P— To 
the  bM  af  BV  luiawMife,  aha  dcaaribed  a  aad- 
4f  MdaaaM  caak  \  but  I  oannot  say. 

How  did  aba  deacribe  the  room,  wli^o  you 
MDt  doiTB  witb  bar  P— To  the  best  of  my 
btaJtdga,  aha  aaid  it  waa  a  long,  darkish 
noBi,  but  1  am  not  positive  ;  but  I  am  positive 
Iht  nid  it  Was  a  knif ,  darkish  room,  before 
iWirefeldairii. 

Whan  did  aba  say  that?— 1  believe,  before 
lUermao  Cbitty ;  if  she  did  not  there,  it  waa 
a  her  motber'a  house. 

Are  you  positive  to  all  the  Questions  yon 
Hhed  bar  al  bar  mothar*s,  and  her  answers  ? 
— las. 
Did  fO«  write  any  of  it  down  ?— No,  I  never 

DM  aba  describe  the  juff  before  the  alder- 
■Mf^I  believe  she  did. 
Aad  tbe  bread  ?->-!  believe  she  did. 
Bawaany  pieces  of  bread? — I  do  not  re« 
'  many  pieces ;   but  it  was  about  a 


iii  M  still  in  the  service  of  Mr.  Snee  ?— 
Uhl  JMsa  left  it  three  years  this  month,  Old 

ia  wbii  riplajf  BBant  are  yon  now  ? — I  work 
br  Mn.  Waller  m  the  Old-Chan|re.  1  am  a 
liiAw  laipiiy  and  live  at  Mr.  Carlton's,  a 
pmw,  aa  AMarmanbury-Festcrn. 

Haw  low  have  you  live<l  there? — 1  have 
iatbi   ■ 


bat  house  about  a  year  and  half:  1 
I  there  before  I  lodged  there. 
Hava  yoH  boarded  or  loilflred  at  any  other 
bassy  abce  this  affair  at  £afield- Wash  ?— No, 
I  saia  aaC 

Haw  far  is  Mr.  Carlton's  from  Mr.  Lyon's 
bimeF— Mr.  Lyon  lives  in  Akiermanbury,  and 
iut  stbar  ia  io  AMermaobury- Postern ;  thei|r 
in  abasi  aaven  or   eight    hundred    ysrds 


Haw  far  ia  Mr:  Carlton's  from  Mrs.  Can- 
liM's  bouse  ?— It  is  next  iXoot  but  one. 

Ivbsoa  aervant  came  aud  tol«l  you  filizaleth 
GlHiaf  wsa  coma  home  ?— It  was  the  apothe- 
orv^smaid. 

tkk  vou  lodffa  there  then  ?— f  dki ;  and  be- 
iwii  I  had  bedded  and  boarded  there  a  year 
■fcrs; 

Did  yoa  lodn  there  tha  whole  month  of 
fcwMij  r— I  dMi,  and  did  not  lie  out  of  the 
hsBsaaMBivbt. 

And  warh'd  for  Mra.  Waller  then  ?^I  did. 

Did  you  wark  every  day  ?^No,  I  did  not ; 
Wl  I  did  Ibat  flMoth  from  the  Mh  to  tbe  37th, 
li  tbs  beM  af  jny  knowladse. 

Wbora  were  you  from  the  1st  to  the  5th  of 
JiDoary  1753  ?— I  waa  backwards  sod  for- 
•aiis  at  Mr.  Carltou^s ;  I  eat  and  drank 
Ikcra. 

Are  you  certain  you  dined  at  home  from  tha 
Mia  tha  5tb  P— No,  1  am  not,  it  bein;  hoUdsy- 

Wliere  did  you  dine  tbe  1st?— At  Mr. 
fsihw'i. 

WhutM  yaa  da  aflsr  dinner  ?^l  went  to 
*it  a  play  ia  Cofcnt- Garden  bouse ;  bat  beings 

1 


too  lata,  the  bouse  ^«s  full,  wa  returned  home 
between  nine  and  ten  at  nijj^ht. 

Who  were  witb  you?— Mr.  Knowles,  a 
coal- merchant,  and  his  wife.  We  tried  to  get 
in  at  Covent- Garden,  then  at  Drury-lana. 
When  we  found  we  could  not,  we  made  the 
best  of  our  way  to  Mr.  Knowles's  house,  and 
there  1  stayed. 

Haw  long  did  you  stay  there?— -I  might 
stay  there  till  almost  nine  o'clock ;  and  then  I 
went  home  with  Mr.  Carlton's  daughter,  «  ho 
is  since  my  wife. 

How  long  have  you  been  married  to  her  ? — 
Better  than  eleven  months. 

1  hope  you  had  your  health  at  that  time  ? — 
I  had,  to  the  best  of  my  knowledge. 

Were  you  not  under  the  care  ofany  surgeon^ 
%T  oaack  ? — No,  I  was  not. 

Were  ^ou  perfectly  well  at  that  time  ?— I 
cpnnot  give  an  anawer  for  a  cold,  or  the  like. 

At  what  time  of  the  day  did  you  go  out  ou 
the  lit  of  Jsnusry  after  dinner?— I  went  out 
about  three  o'clock. 

At  what  time  were  yeu  at  Mra.  Carlton's  at 
night  f — 1  waa  there  liefore  ten  o'clock. 

How  dkl  you  disposeof  yourself  on  the  3d  of 
January /-^I  doa't  know  whether  I  was  at 
work,  or  not. 

.  I  thought  yoa  said  yon  did  not  go  to  work 
till  the  Sih.— I  carried  work  home  on  the  5Ui ; 
no  the  3d  in  tlie  evening  1  was  at  a  club  in  the 
Old- Bailey,  and  I  can  bring  the  club- book  to 
satisry  you  of  that. 

How  came  you  to  be  so  extremely  particular 
at  this  distance  of  time,  where  you  was  on  the 
1st  and  3nd  of  .lanuary?— By  looking  over 
Mrs.  Waller's  book. 

What  led  y<ui  to  he  so  particular  io  all  these 
ctrcomsUnees?— 1  don't  know  any  thing  in 
particular. 

Did  you  expect  to  have  lieen  asked  any  thiiyf 
about  It  in  this  cauke  ?— I  have  beard  that  it 
should  be  alledged  against  me,.tbat  1  took  the 
girl  away. 

When  was  it  at  first  so  suggested  ? — I  can- 
not remember  that ;  it  is  since  the  time  of  find- 
ing the  bills  against  the  Abboislmry  people ;  hut 
I  cannot  aay  the  time  I  did  first  hear  it. 

How  Vmg  have  you  been  acquainted  with 
mother  Wells?— It  is  four  or  fi^e  years  ago. 

Have  you  been  in  her  house,  smce  you  left 
Mr.  Soee'^s  service  ?— No,  not  in  her  house  nor 
near  her  house  since ;  that  is  three  years  ago. 

Had  you  never  a  quarrel  witli  mother  Wells? 
—No. 

Upon  Toor  oath,  did  you  never  threaten  that 
you  would  be  revenged  on  her?— No  j  upon 
my  oath,  1  never  expressed  any  such  words. 

Where  does  Mr.  8nee  live  ?— He  has  a  coim- 
try-bousoat  Kdnu>nton. 

How  often  have  you  b(>en  in  the  house  of 
mother  Wells?— 1  have  once  or  twice. 

Will  you  venture  to  sncar,  that  you  have 
not  been  there  oftencr  tlian  twice?—!  may 
have  been  there  two  or  three  times. 

Have  y»u  been  th^rc  no  more  than  three 
timeS)  upon  yoiir  oath?— I  cannot  say,  whe* 


57  GEORGE  11- 

iber  I  lidve  or  bare  not :  I  'nave  i^altecl,  mftj>be, 
three  or  four  times,  I  doo^t  know. 

Upoo  your  oath,  ba?e  you  not  beea  there  6re 
limes P — I  duo't  know;  I  caoDOt  aay  how 
maoy  timet* 

Wilt  you  take  upon  yon  to  tay,  you  bare  not 
been  there  six  times?— No. 

U(>on  your  oath,  will  you  take  upoo  you  to 
•ay»  you  neter  was  there  ten  limes  in  your  life? 
"-No,  I  never  waa. 

Wilt  you  twear  you  have  not  been  there 
•i^bt  limea?— I  believe  1  haie  not. 

Are  you  poaitive  of  that? — 1  helievei  I  couU 
iwea?  I  never  waa  ibere  eight  limes  in  my  life. 

Were  you  at  Edmonton  before  the  Ist  of  Ja- 
nuary waa  twelve-mODtb  ? — Yes ;  1  waa,  in  the 
Chrittmas  week* 

What  was  your  business  ihere  Iben  ?-**  1 
went  to  see  some  arqviaintance  and  friend§  for 
my  pleasure^  anil,  1  lM;heve,  1  lay  at  Mr,  Hub* 
bard's,  a  shoe- maker,  two  nigbtt. 

Hud  you  any  women  there  ?---No- 

lioi¥  did  you  divert  yourself,  while  you  was 
there  ?-- 1  did  out  divert  myself  there. 

When  did  you  dance  there  last?— -1  don*t 
know  how  long  it  is  ago :  I  was  dancing  at  the 
farther  Bell  at  Edmotttou,  last  Edmoalou  sta- 
tute. 

Who  was  your  partner  ?— She  that  now  u 
my  wife. 

>Vhen  you  came  into  Mrs.  Canning'V  house, 
what  raadeyou  be  so  particular  in  asking' rjues- 
tionsf—Tbere  were  others  asked  a  great  many 
questions  besidcrsme. 

Where  had  you  ased  to  ride  your  master's 
borse  lo  water,  when  you  lived  at  Edmonton  ? 
«-- Sometimes  to  one  place,  aad  soinetiines  to 
another. 

Did  you  never  water  your  horse  near  Mra. 
Wells's  ? — i  have  at  ihe'hrook  on  this  side  her 
house. 

Did  you  ever  put  your  horse  np  there  ?•*-! 
once  rlid  ;  I  belicTe  he  was  bung*  at  the  door ; 
J  dtm't  rrmeinber  any  of  my  mabler^s  horses 
being  put  in  the  stable. 

By  Mr,  Morton. 

Did  jou  ever  ride  your  horse  in  at  the  win- 
dow, where  the  girl  jumped  out  at?*-No,  Sir, 

^re  you  sure,  thaibelween  the  hours  of  nine 
and  ten  on  the  1st  of  Jsouary,  you  dtd  not  ^o 
10  see  Bedlam  ?— No^  Sir;  1  am  posilive  of ibat. 

Tell  me  the  frolb,  or  perhaps  half  Bedlam 
will  be  called  tocuntradict  you. — No,  1  did  not. 
Sir. 

Were  you  in  Moorfields  Ibat  nigbl?-— No,  1 
was  not. 

Did  von  take  away  Belly  Canning  that  night 
Up  to  rtoundsditch?.--No,  Sir. 

Did  ym\  see  thai  dmir  to  the  room  opeu^ 
where  Betty  Cuntiing  was  conHned,  when  you 
was  there  wiUi  her  P'-*No^  I  did  not,  Sir 

If  ihc  iUior  hrtd  Ijeen  oj>en,  and  hUe  bad 
looked  in,  aod  *be  had  not  fixed  upon  the  room, 
should  ymi  have  beheved  her  story?— I  verily 
kelipve  1  slmnld  not. 

Was 


Trial  o/Elhaheih  Canmng^ 


yowr 


was  ei- 


pecteil  of  you  lo  be  more  parlictttar  thifi  odl«rJ 
people  ?-*-No;  there  were  a  ftreat 
jfeople  Ibere.     I  did  not  regint  May  i 
any  body  else. 

Had  you  any  thing  to  do,  to  direct  Mr.  Al* 
derman  Chitty  against  whom  he  sbould  i&ak# 
out  a  warrant  f--- No,  Sir. 

Reearder,    Was  there  any  lock  opon   Uisl 
door  leading  to  the  hay-lofl?*--Sr<irr«lr  1  be- 
lieve there  was  none  at  all ;    but  1  did  ool  likt  j 
notice  of  that. 

3iary  Myen  sworn, 

Myert.  1  live  in  the  neigbbourbood,  aod  { 
know  the  mother  und  daughter. 

Mr.  Nnm.  How  long  have  you  known  Ifca  { 
daugbttr  ?•— A/'veri.  About  eleven  y«!ars. 
is  a  very  sober»  fionest  girl,  as  any  in  Eii| 
she  always  behaved  very  handsome  lo 
body. 

Do  you  remember  her  being  mitttDg  on  ibe 
Isl  of  January  ?-•-!  do. 

When  was  the  6r8t  time  you  saw  her  afkrP 
•  -On  the   39Lh  at   night,   at   her  molber^a 
house.     There  were  her  mollier,  Mrs,  Wood- 
ward, and  Mary  Lyon  fhere.     Elizabeth  Cto- 
ning  was  sitting  by  the  tire-side  in  a  very  MadEp 
dirty,  bad  condition  ;  her  face,  arms,  and  t — *" ' 
were  black  ;  I  took  it  to  be  a  cold,  omnia 
occasioned  by  cold ;  her  nails  were  as  black  i 
my  honnet,  and  lier  Angers  stood  crooked. 

Row  was  she  dressed  ? — 8be  had  a  U 
quilted  pettitM»at  OOi  all  torn  about  the  kaeci 
she   haJ    a   bed- gown   oo,   and  a  rag 
her  head«   1   believe  it    was  a  mntlin  balf^ 
handkerchief;  slie  was  very  low  in  her  snints* 
f    kneeled   down    on  my   knees,  lo  ask  kt^^ 
what  was   the   cause  of  her  being  in   UimH 
condition  ?  8he  told  me,  she  went  on  the  I«C^ 
of  January  lo  see  an  aunt  and   unctr,  aoti 
stayed  vviih  them  till  night,  and  lhe\       -   '    ^m 
I  nto  H  on  nd  sd  itch  ;  an  dhow  she  was  r  1 1| 

sirip|>ed  in  Moorfiebb  by  two  men,  ...-.  -■ -^  ■ 
gave  her  a  blow  on  her  bead,  and  deprived  ber 
of  her  senses,  and  was  carried  into  a  hotitie  by 
these  two  men;  and  when  she  came  in«  tber# 
were  an  elderly  woman  and  two  young  onaf « 
the  old  woman  took  hold  of  her  arm,  and  askfd 
her  if  she  would  go  their  way  ;  and  she  ssi^   |i 
No  ^  that  then  she  went  and  took  a  knife  otil   |l 
of  a  drawer,  and  cut  the  lacing  of  her  sian 
and  took  them  oflf,  and  gave  her  a  great  usf 
on  the  face,  and  told  her  she  should  sufitf  is 
the  flesh  ;  and  opened  a  door,  and  shoved  ber 
up  a  pair  of  stairs  into  a  room  ;  and  aOcr  sbt 
was  in,  she  damned  her,  and  said^  if  she  movaii 
or  stirred,  or  rnadi*  any  resistance^  she  woull 
come  and  cut  hpr  throai. 

Wh»t  time  did  she  say  she  was  carried  ii 
there? — About  four  in  the  morning,  as  she 
reckoned. 

Were  there  any  other  people  in  Ibe  roooii 
besides  what  you  have  mentioned f-^-HMM 
were  several  others. 

Did  you  see  Scarrat  there? — t  i!id  not  knaw 
he  uas  there,  tilt  I  got  off  my  knees  fri«in  ialk> 
ing  to  ber. 


m 


Jir  Wilful  and  Corrupt  Perjury. 


A.  D.  1754. 


[506 


WbitM  thetdl  you  wai  io  the  room?— 
flhelold  me.there  was  bay  there,  and  a  pitcher 
vilh  water  in  it»  ahe  believed  about  a  gallon  of 
it;  umI  that  there  was  a  fire-place  in  it,  and 
abMttbe  Taliie  of  a  quartern  loaf  of  bread  in 


Did  she  say  there  was  a  grate  in  the  room  ? 
•«8be  did;  and  that  she  took  the  bed-gown 
mk  iig  out  of  the  grat^  in  the  rr.om. 

Did  she  giTe  any  description  of  the  size  of 
Ihf  roomi  whether  long,  round,  or  square  ?— 
Kf ;  I  cannot  say  she  did.  She  said  she  got 
Mt  at  the  window  at  the  end,  by  pulling  down 
tea  boards^  and  pot  her  head  and  shoulders 
HI,  and  tiMk  out  some  part  of  the  window,  and 

'ki  oat  her  legs,  and  so  dropped  down ; 

I  that  she  tore  her  ear  in  coming  out.  1 
I  al  her  ear,  and  it  appeared  to  be  a  great 
li;  there  was  a  great  deal  of  blood  ap- 
Mind  to  he  fresh,  and  dropped  of  blood  (while 
I  Win  there)  upon  her  shoulder.  She  was 
Mkeishov  nr  the  house  was  off?  She  said, 
dbant  Innuies  out  of  town.  She  said,  while 
fkit  wm  k  the  room,  there  was  a  stair-case  lay 
1 10  Ihf  room,  and  she  heard  people  run  up 
dnni  in  the  nights,  and  she  beard  the 
I  of  Bother  Wills,  or  mother  Welts,  men- 
d.  I  waa  close  bv  her,  and  heard  every 
void abe said;  she  spoke  very  low. 

Had  Searrat  spoke  tu  her  before  she  said 
Mthcr  WUIa,  or  Wells?— 1  donH  know  that 
hthad. 

If  he  had  apoke  to  her,  should  vou  hare 
kaswD  it?— 1  should :  1  did  not  hear  him  speak 
tiberatall  then. 

Tdlthe  Court  what  she  said  further—She 
■id,  the  escaped  about  four  in  the  afternoon, 
Miuked  her  way  to  Loudon.  She  was  so 
iiv,tbat  I  oottid  scarce  hear  what  she  said. 

Did  you  go  before  Mr.  Alderman  Cbitty  ?— 
IKldidnot. 

Did  yoa  go  down  to  Enfield- Wash  aOer- 
Wii? — J  did  on  the  Thursilay  after  her  re- 
tn.  There  were  in  the  chaise  with  me,  the 
Mthv  and  daughter,  and  Mrs.  Garrat ;  and 
■vtnl  other  people  went  down,  some  on  horse- 
JmL  Mr.  Adamson  was  one  on  horseback. 
We  Mt  him  as  we  were  going.  He  had  been 
jbe.  Be  spoke  to  the  eoachman,  and  asked 
■[I  what  made  him  so  Ions:  in  coming ;  and 
■id  tbey  were  out  of  patience  in  waiting. 

Did  he  aay  any  thing  to  the  girl  ?— He  said 
2^»  Betv  what  aort  of  a  room  was  you  in  ? 
fhiHid,  Sir,  it  is  an  odd  sort  of  a  room,  there 
*bay,  and  a  fire-place  in  it.  lie  said  again, 
Whit  do  you  say?  Is  there  hay  in  it.  Bet? 
*Wit  all  be  said,  aojd  went  away  directly. 

Wlien  ho  spoke  to  the  girl  in  this  manner, 
■d  ba  tell  her  there  was  hay  ?— He  did  not. 
We  then  proceeded  on,  and  came  to  the  house 
tt  Enfield  Wash ;  and  Bet  was  carried  into 
^  Utehen,  and  from  thence  into  the  parlour. 
na  gcoilanen  desired  her  tbere  to  be  very 
Miaon  and  careful  what  she  said,  and  take 
J^\  and  afker  that  np  stairs.  Af\er  she  had 
Mad  ahool|  abo  pointed  to  Mary  Squires,  and 
'  *4,  Tbal  H  the  old  womao  that  cut  my 


Was  ahe  sitting  or  standing  then  ?«oI  can- 
not say ;  there  were  a  great  crowd  of  people ;  I 
could  not  get  to  the  sight  of  her. 

Did  the  description  she  had  given  of  the  old 
woman  she  told  you  of  on  the  i29th  at  night, 
tally  with  the  old  woman,  when  you  saw  her? 
—  Indeed,  it  did.  She  then  said,  4bese  two 
young  women  were  in  the  room  (that  was 
Virtue  Hall,  and  the  ^ypsey's  daughter).  The 
old  gypsey-woman  said,  she  never  saw  her  in 
her  life  before,  and  hoped  she  was  not  come 
to  take  her  life  away,  or  something  to  that  pur- 
pose. 

Was  the  day  mentioned,  when  Elizabeth 
Canning  said  s!ie  was  robbed  ? — I  don't  know 
that. 

Did  you  hear  the  old  woman  say  ahe  had 
been  any  distance  from  Enfield  Wash  ?— No, 
I  did  not ;  bat  I  heard  the  old  woman  say  she 
had  lain  there  but  three  nights,  and  George 
said  so  too.  After  that  they  carried  Elizabeth 
Canning  up  one  pair  of  stairs,  and  into  two 
rooms ;  one  of  them  was  locked,  and  the  key 
sent  for ;  she  said,  none  of  them'  were  the  room 
in  which  she  was  confined :  then  she  was  car- 
ried through  the  kitchen  and  up  into  another 
room;  then  she  said,  Gentlemen,  this  is  the 
room  that  1  was  in ;  but  here  is  more  hay  in 
it,  than  there  was  when  1  was  here. 

.  Were  you  in  the  room  then  ? — I  was.  She 
took  her  foot,  and  put  the  hay  away,  and 
shewed  the  gentlemen  two  holes;  and  said« 
they  were  in  the  floor,  when  she  was  in  it  be- 
fore. 

Had  you  heard  her  mention  them  two  holes 
before  ? — No,  I  never  did.  Mr.  Adamson  set 
his  hack  against  a  window,  and  asked  her  what 
she  had  ever  observed  out  of  that  window  ? 
She  said,  hills  at  a  distance. 

Which  window  was  this  ? — ^That  next  to  the 
fire-place.  She  had  told  us  there  was  a  pewter 
bason  there,  and  a  saddle ;  but  when  we  came 
there,  there  were  two  aaddles. 

Did  you  look  out  at  the  window  ?-— I  can- 
not say  1  did. 

When  he  put  his  back  to  the  window,  could 
she  have  seen  what  was  to  be  seen  tbere  ? — 
No,  she  was  not  so  high  up  to  it. 

Did  you  find  the  pewter  bason  tbere  ?— We 
did. 

Did  she  mention  what  colour  the  pitcher  was 
of,  at  her  first  mentioning  it  ? — 1  cannot  say 
she  did ;  but  said  it  would  hold  a  gallon  of 
water. 

Where  did  you  first  see  the  pitcher  ? — In  the 
kitchen. 

Did  you  go  lojuMiceTashmaker's? — No,  I 
did  not.  The  other  woman  and  I  were  a-cold, 
so  we  went  over  to  a  public-bouse. 

Cross-examined  by  Mr.  WilUt, 

Was  her  linen  dirty  when  you  was  with  her 
on  the  99th  of  January  ? — i  looked  all  about 
the  neck  and  shoulders ;  it  was  not  very  dirty, 
but  it  was  dirty,  it  was  soiled  from  her  body. 

Were  you  by  when  she  was  undressed  ? — 
No,  I  was  not. 


507]  27  GEORGE  It 

Do  yoxn  know  what  number  of  peUiQoats  itte 
Iiai)  on  ? — MO|  I  4o  noL 

Pray,  did  any  ut  you  kuow  Mr.  Scarrat? — 
I  knew  liim. 

Dr>  ynu  liiflieve  old  Mrs.  Canning  had  any 
ki|oivU*d|£e  uf  hitn  ? — 1  lieliere  «Ue  inighi. 

X>t«J  yuu  bear  Wr  call  bim  by  his  Dam*?— 
fiiK  B  did  not. 

iVhy  d<i  you  liitnk  tlie  miffbt  kiirm  bimF-  — 
Because  l»e  hvtfd  iu  tlie  uetj^bbourboiid,  next 
door  io  ber  but  one. 

By  Mr,  Naret. 

Who  was  there  u  hco  yiiu  was  there? — There 
Waa  Mrs.  Wt»odword,  Mr&.  Lyon,  and  Eliza- 
tetb  Ctt.nujflg*s  mother. 

Dtil  you  hear  Scarrat  exatuine  Elizabeth 
CanniD^  where  slie  hati  been  ? — No»  1  did  not. 

Did  >ou  ohaerte  the  bloo«l  to  droji  very  fast 
from  ht-r  ear? — No;  H  had  drojiped  uiion  her 
ihoulder,  and  another  dmi)  was  then  at  her  ear. 

Waa  the  handkerchief  then  on  her  head  ? — 
It  was. 

Was  tliere  nnuch  bIo<jd  on  the  h  ami  kerchief? 
^There  was  a  pr«^Uy  ileal  upon  iu 

Wcr*"  you  at  EafiiKI-Wasb»  when  Canning' 
was  carried  int'i  the  kitcheu  ?>-*I  was. 

Do  you  remember  the  duor  to  be  open  tUat 
leads  up  into  the  hay -loft,  nhea  sbe  was  there  ? 
— «I  don*i  renarmbtrr  it  was. 

Upon  her  being  carried  into  the  kitcheo»  did 
sbe  Bay«  she  bad  been  there  before  ? — No,  1 
did  not  hear  any  thing  of  that. 

Wh^  Mr.  Adatn&on  asked,  what  prospect 
there  was  out  of  the  window,  did  not  she  say, 
there  were  trees  near  it  ? — Not  as  1  heard. 

I  think  you  sa3^  she  described  the  elderly 
woiuan  ? — I  beard  her  describe  the  two  girls 
thai  were  by  ;  one  waa  a  blark  girl,  the  other 
a  fair  one,  and  ttie  M  woman^  a  ta)I|  blacky 
swarthy  woman, 

Msfy  Woodvard  fiwa«n.  ' 
M.  Woodward,  Elizabeth  Canaiag^s  mo- 
ther tetU  for  tne  the  ai^ht  sbe  catne  boioe.  1 
went  thereabout  half  an  hour  afler  teo,  atad 
alaycd  till  about  one*  There  came  Mr.  Srar^ 
tat,  Mr.  Wiuilebur>%  and  uibers,  after  I  waa 
there,  Mrs.  Canain^ asked  uie,  who  shcabottld 
tend  for  P  I  «aid,  Send  for  her  best  frietvls,  I 
tnentiotied  Mr.  Lyon  and  his  wife,  and  otberi. 
fibe  atht  the  appreotiee  ;  he  retuniedi,  amtaaid, 
he  waa  ffotie  to-t^ed.  Tliere  eame  Mr».  Myera 
and  Fi>l)y  Lyon  ;  the  latter  lives  set  rant  with 
Mr.  Roberts. 

Mr.  WUiiams,  Had  yoa  any  cnnvensation 
with  Elizabeth  Canoing'? — Woodward.  I  had; 
Ibe  ftr«t  word  she  iiaid  to  me  was,  ^Ira.  W(>t>4l> 
ward,  I  am  ainnost  started  to  deatli.  (8be  was 
fitting  in  the  cbimney-coroer,  and  lifted  up  ber 
head,  and  put  her  bauds  together,)  I  have  had 
nolbitig,  aaid  she^  but  breail  and  water  since 
New-ytar'a  day  ai  nigbti  and  I  have  bad  no 
hraad  aver  since  Friday.  I  astked  li«r,  where 
aba  had  been  ?  She  aauJ^  abe  bad  been  onofined 
ID  a  nH»ni  in  a  home  en  tbe  BertfMaiiife  road. 
Was  Ibia  beibna  any  h«df  mmm  iti  ?-*-Ufion 
my  oatb,  tbisabe  aaid  before  aaycbidy 


Trial  2f  Eliiabeih  Canning, 


in.     I  kaowtog  nothing  of  tbe  Hertlbrd  i 
askad  hm*  no  more  of  it. 

Do  you  remember  Iker  rneniioDiaff  any  My¥J 
name? — 1  did  not  obsrrve;,  tl»roia|r{|  tins  whalf] 
time  i  waa  there,  that  the  mentioned  aav  My't 
name.     I   mulled   her  a  tittle   wiue^  but  Wit 
never  out  of  the  room.     I  asked  be?  wbal  «a 
bccoBie  of  her  clotJiea  ? 

Go  on  ;  ypu  need  not  gire  a  p;if1jcttl 
count  ot  the  ftra  roblxfry  in  Moorfieidt,^ 
sajd,  about  h»1f  an  hour  aftrr  she  cs 
aifiifiiea,  she  came  to  a  liouie  wbere  abe 
confined  ;  there  were  tbrr e  woniea  limb 
of  h«r ;  the  old  woman  asked  her,  if  a^be 
go  their  way  ?  8heaiiawercd,  No,  V[ 
ahe  went  to  a  dresser  or  dresaernf rawer, 
took  a  kuilV,  and  rtpped  ibe  lacing  of  ber  afiyi^ 
and  .ifter  thai  to«»k  up  her  peiticeala«  and  bMibal 
at  tUem,  and  took  her  a  slapao  Ibe  faei^  hI 
saui  Damn  yoti,  you  bitch»  HI  gi«e  yotl  tbil| 
and  turned  her  up  a  pair  of  ataira  iiiio  Ibif 
place,  where  she  waa  confined,  wilb  tbn 
ibg  oaths  to  cut  her  tliroat  if  sJir  beard  b 
out.  I  atikeil  her,  i»hai  6<»rt  (4  aa  did 
this  waa?  8be  said,  she  waa  a  laN,  blail, 
avrarthy  %voman  ;  and  the  young  wmbcii  dii 
aolhipg  but  laugh  ui  ber.  I  wia  ibert 
her  beat  part  ot  half  aa  hour  befara  ibe 
came  in. 

Waa  there  aoy  thing  from  your  examinatido, 
tbat  could  possibly  lead  her  Io  give  her  aa* 
i^^Yer  ? — ^No ;  nor  her  mother  never  spoka  to 
ber  during  the  wb»de  time  1  was  talbinga»bsr. 

Did  ahe  tell  you  this  of  ber  owo  aeeafif*^ 
8tie  began  and  went  on^  after  I  asked  her  wbifi 
slie  bad  been  confined. 

Did  she  say,  during  ber  wbi»le  coaiiaeiDali 
that  she  saw  any  body  ? — Nol  aa  l  resnenkr* 
She  was  to  a  most  deplorable  oaiulitiaD;  Af 
bad  aa  old  rag{;ed  bed-gowa  an,  and  a  bit  c^ 
an  handkerchief. 

Look  at  this  beil'Cowt^  <  i^  *bis  tbe  samef-' 
I  do  really  believe  this  to  be  il  ^  but  1  ivjii  not 
lake  upon  me  to  swear  it* 

Had  you  ever  &eeu  it  before  thai  aigblf'* 
No,  never. 

Upon  your  oalb,  do  you  know  whether  thai 
is  her  mother *s  ? — Her  motber  never  bad  imII 
a  thing  on  her  baek  in  her  bfe. 

Look  upoo  Ibia  baK^baodkercbtef.— *Thit  1- 
know  ia  tbe  same  abe  came  bame  io. 

You  say  you  mulled  her  aefne  wine  i  did  ib^ 
driuk  much? — 1  gave  her  about  half  a  ti 
full,  and  about  the  value  of  a  outmetf  ia 
tity  of  bread  soaked  io  wiae ;  abe  rolled  it 
in' ber  mouth,  and  aaid«  Mrs,  Woodwa>d»  I 
cannot  svrallow  it,  and  apil  it  out.    Sbe 
rery  faint  and  low. 

Do  you  beheve  aba  waa  leaJij  ia  thai  lad 
state  oY  beattb  m  which  sba  apiiaaeed  to  htf 
— I  believe  abe  waa  as  bad  aa  abe  a^fiearad  M 
be  ;  I  am  seaaible  of  fbal.  8be  sii|if>«<l 
■  upoonful  of  tbe  wine ;  wbetlier  abe  aw4 
ed  it  all  or  nol^  I  don't  know.  Hlie  gaaa  i 
count  of  bavi(j>^  an  atoala  io  that  tima,  ai 
apothecary  diii  all  be  coold  ii>  asabi  bar 


m 


J^  Wilful  and  Corrupt  Perjury, 


A.  D,  I75K 


[610 


Whffb  trma  wkm  able  t<ft  go  abroad  f^Oa  iht 
Tuembf  •e*iiiugbt  alUr  h\w  cnme  home  (\vhicb 
ifiJinal^  Mofiijay)  hU&  e»mc  to  my  houiict  and 
nwilieiT -'t', ~--'■^:,  -  nocks;  siip  was  itt  aU 
tkff  lioit-  r  am)  aiiitihocary  came 

titlNfi  4v^...i^  ^f^r.  w.  « he  time  she  was  at  CD  J 
kutt^  the  wall  daniterouiily  ill.  Stie  waa 
IroUfbt  in  •  mao^a  arma,  atitl  put  id  m  clidir  to 
fi  la  Mr  FiddiAf  "a  Uie  day  atWv  ahe  came  to 

Cf9m*9Emantt^  by  Mr.  Gascoynt* 

Uii  jPKt  vhKnm  her  ear  at  all  r»l  did  not 
te  niifhl  tbe  came  horne^  Imt  the  apothe- 
orj**  nMa  did ;  ibe  hniidtiei-cliter  was  all 
MbmI^I  il  bled  so,  tlmt  it  sitocked  me,  I  could 
•at  loQK  al  it:  il  wan  rery  cotiT weather,  and 
Ifca  11004  bad  c<Mtu:(>a)ed»  and  was  thick  upon 
k»nri  and  uuitiff  by  tbe  fire,  1  iaacy^  that 
»iiLr  W  bk^etl  afi  esh 

"  r 
she 


tJa  |0«  ririuriiiber  Mr§.  MayVe  enqiiinngfo 
lb»ibfti|ial  ahe  came  home  h\? — Yes,  shi 


*  f»other  shenrd  it  her, 
I  know  it  wai  theshiflahe  came  home 


fef--l4o 

Do  jni  rvmemher  Ulrs.  Mav)e*a  observt- 
lioi?— I  do;   lliat  was,  that  she  would  take 
beraaili  t^l  no  mau  erer  lay  with  her,  for  it' 
tUrt  k»d,  ibera  would  have  beeo  nature  oti 
«Bt>*idt  iir  othifr. 
U>  V04I  reinenber  wl»elber   site   observed 
11  waa  dean  or  dirtj^  ?— Upon  my  oath, 
•  ooi  obaerfo  any  thin^  else  in  my  hear- 
%'. 
H  li  tbo  ahift  dirty  P*.f  t  was ;   but  not  bo 
Itv^  at  if  abe  had  been  ut  hard  work  in  it. 

Sbal  dui  yon  think  nf  it  ? — It  was  dirty. 
as  il  att  dirty  asi  if  it  had  been  wuro  by  a 
that  was  dragged  i\om  London  to  En- 
Waaii«  and   lay  upon  hay   so  long  at'ter- 
omlif^Yeti,  It  WAS. 

Ulul^,..,  ^,»..,  ^xpreaa  your^lf  to  the  con- 
•i*2  lo  — No,  I  iitfer  did» 

Wktiij  ,  ..>er  expres»ed  you  were  aur- 
|*it^UKat  ihc  «hil\  ws«  no  more  dirty,  upofi 
hat  worn  no  long  ? — N0|  1  iiev^r  said  such  a 

Dm  vott  obaerve  aoy  splasbes  of  dirt  oa  it  ? 
M  m  oni ;  if  thero  had  been  any,  i  must 
w  mta  them. 

^tni  there  on  spots  on  it  at  aft  ?***There 
Vft  aa  «p(»ta  oC  any  kind  lu  the  world. 

Tkkacaff,  ;itb.-Iam  so, 

1 1^  1  so  dirty  it^  it 

id  in  it  aJ  I  the 
11  as  dirty  in 
*»apk,  ..  .«v  ..-«  w, .,...,.  .i.  .i  all  the  time. 


X 


Uj  >lr.  Rfccrtkr. 

IWjiNio^Mn.  Ifaylt  tWeief- 
*^w  viii  awo 


ot  b*ft  been 
*lNi  ikotv  Ik  wt^f  r  kfvnl  her. 

Wbf*f  "*  ^♦^  Xtiij  (.-  .itili  ;'tM>,  CaaittJng  did 
■Njwt  r^  fn^t  in  my  hearing. 

Wat  *!,,  ;!.; ;,  ab«yf#oftCO  F— V  liCTtr  bciew 


JijAn  Winttthur^  tftorn. 

WintUhuri^.  1  hate  known  EUzabeth  CaQ« 
nin^Z^the  mother  about  fotirieen  or  Bfteen  yeart;  , 
she  lives  in  AldermauburyFostern,  and  beara 
as  ^ond  a  character  as  any  in  tbe  parish*  f 
have  known  the  daughter,  1  believe,  Iwelre 
years;  she  is  a  very  aohergir)  as  any  1  know  ; 
and  I  beheve  the  whole  neighbourhood  wJU 
say  so.  8he  lived  with  me  about  eigliteea 
moTilhs,  about  three  or  four  months  before  thia 
happenetJ.  Site  always  behaved  herself  io  a 
very  sober  manner.  I  keep  a  public -hoitae.. 
1  have  a  back  room,  where  she  would  com- 
monly lie.    Bhe  very  seldom  came  forward. 

Mr.  Morton.  Did  she  shew  a  d  iff  position  to 
be  forward  iir  (jay  ?—  WintUbury.  Quite  diffis 
rent.  I  don^t  beheve  she  went  out  once  in  a 
quarter  *0  a  year.  When  she  went  away 
from  me,  many  of  the  oetghbours  would  have 
had  her. 

Do  you  rememlver  her  bein^  missinq*  on  tfte 
1st  of  January  ? — 1  do  ;  and  hercomioi;  home 
on  lire  '^9ih,  1  saw  ber  thtit  night  at  her  aao* 
ther*s  house,  stitipcr  by  the  fire. 

How  came  you  to  go  tbere  ? — A  neighbour 
came  and  told  W,  she  was  ootne  home. 

Do  you  know  who  that  neighbour  was  ?*-»! 
donot. 

Was  it  Mr.  Scarrat?— No,  it  was  fto*.  I 
went ;  and  when  f  came  into  the  room,  I  met 
with  ten  or  a  dozen  nroftle  :  there  was  the  girl, 
in  a  veiy  bad  condition,  with  a  hamlkerchiojf 
wrapped  abom  her  bead,  anil,  I  th*nk,  ii  was 
blooily  on  one  side,  9he  was  very  weak.  I 
look  hold  of  her  hand,  and  said,  Bet.  Sbe 
said,  O  Lord,  Sir,  yon  d<in*l  know  what  I  Ifave 
gone  through  !  or  something  to  that  eflGect, 
Hoid  I,  You  are  at  home  now  ;  and,  tt  ia  to  be 
hoped,  yoQ  have  friends  to  atsisi  you  tf  yon 
Ii4ive  been  used  iU.  1  asked  her  where  she 
had  hven?  she  said.  On  the  Jr)t*nlordi«hire 
road.  I  said,  How- do  yon  kooir  thatf  she 
sard,  abe  rememberetl  aeotng  (through  soni« 
cracks,  when  she  was  in  the  room)  Ibe  coacl»> 
man  thai  used  lo  carry  things  ibr  roe. 

What  ooBehnMMt  koi^  jo^r  used  to  send  thing* 
by  ? — Uy  the  Royston  or  Hertford  coach,  I 
aaked  her,  how  far  slie  was  from  London  ?  t^he 
s:»i#,  aAioiit  trii  or  eleven  miles.  Thffl  I  s«i<l, 
Plraj  ean  you  leM  whose  house  you  were  atF 
Hho  laid,  I  cannot;  but  I  heard  the  HMM' 
WiMs,  or  fVelk,  by  peojde  beUw  Rt;iirs, 

Do  you  know  Hidk-ri  Hcarrat  ?— I  do. 

Was  he  in  the  mom,  when  she  nvcntioneil 
the  name  Wills  or  Welki!'»-He  raigUl  b«|  1 
ifid  not  see  hint  then. 

IH  you  reooU^t  th«t  Corral  inefi^siil 
Wi\U  nt  WHIs  ii>  herF— T»  tlio  besfoC  nqp 
ktmwiedgi*.  he  did  not. 

Dttlyou  see   Ms«ry  Myof»  thtfoF— I  cm%* 
remetnlior. 

Did  yuw  see  a  woman  knerling  by  th#  aide 
(iC  herP— I   dOiri  know,    iodet^.      I    stayed  < 
tb«?ru  Uk  alimil  thr^e  or  feur   mrnofes,    mid 
tKen*  wn<o  m  g^mt  mmj  MmtUt  in  iW  rooiMw 

Wire  von  befoft  Mr,  Mctmrn  CiHif  ^ 


^ 


511] 


^7 -GEORGE  II. 


Trial  of  Elizabeth  Cannings 


I 


vos ;    hut  that  is  quite  out  of  my  mrmniy.     I 

dtjn*t  koow  the  particuturt^ihat  passed. 

Were  you  a  I  Eiitidd-^  ash  ? — I  was^  with 
Mr.  Colley,  Mr,  8parham,  Mr.  Adamsoo,  Mr 
L}on,  Bud  j^Ir.  Hag^iie.  J  |f at  down  t»efurelhe 
chutse  came  down,  and  n  eni  to  the  8uu.  The 
Ikeadhofough  went  Hitb  a  warrant  to  \VelJs'« 
before  me  some  time:  after  that  I  went  into 
the  house,  tlie  parlour,  aud  kitcbfn,  and  up 
stairs^  ami  iitto  another  room  out  of  (he  kiicheo  ; 
it  iii  a  long  mom,  it  goes  up  ahuut  four  or  five 
steps  :  I  observed  there  ivas  a  i^reat  deal  of  hay 
there  \  it  seemed  as  if  it  had  been  tossed  up 
A-tVesh,  it  laid  very  ti^ht. 

Did  Mr.  Nash  pfo  iu  with  you  ? — f  was  in 
before  him  an  hour.  He  and  Mr.  Lyon,  Mr. 
DtLgue,  and  Mr.  Aktrittge,  cume  all  dcitfn  to- 
•^eitier:  we  were  there  au  hour  before  them. 

VV  1)0  weul down  with  you? — Mr.  Ada^iison 
and  Mr.  Scormt  drJ.  We  put  up  at  the  8ud  ; 
and  anoth'^r  or  two  weot  down  on  foot. 

Who  was  in  the  roum  with  you? — Ulr, 
Adamsou  was,  and  them. 

What  did  you  obierve  in  liie  room? — There 
was  au  ukl  che»i  of  drawers^  a  Baddlv,  and  a 
ptaee  where  somebody  had  Jaid  oii^  nud  a  ru^ 
upoo  them  :  I  did  not  rllstorb  it  mucli :  I  can't 
telt  what  was  under  the  rii^ ;  it  seemcil  to  be? 
a  parcel  of  M  ^acka.  I  observed  u  broken 
|ii  teller. 

Did  fihe  tell  you,  the  nii^ht  cif  her  coming' 
home,  of  a  iiitcher  ? — ^8beilid,  of  a  broken  one. 
She  descril^d  it  by  heiu^  a  broken  one,  nnd 
which  would  huld  abcml  a  ^aliou,  nrsoiueihiri£r 
like  that:  and  wheu  I  saw  it  iti  this  room,  1 
thought  it  was  the  same  she  di^scri^cd, 

L«ook  at  thia  pitcher;  do  you  think  this  is  it? 
—I  belief  e  it  may  be  it. 

Whether  or  no  you  know  of  hny  of  your 
friends  carryings  thut  pitcher  up  into  ihe  work- 
shop ?— I  beheve  I  was  the  first  person  of  us 
that  went  into  the  room. 

Are  you  sure  there  was  a  broken  pitcher  in 
the  room,  when  you  went  iu  first P-«*I  am  sure 
there  w  as. 

How  ton^  did  you  stay  in  the  room  then  ?— 
I  stayed  but  a  little  tira«,  and  then  came  down 
Again. 

Did  you  see  any  tlitn^  of  a  man  that  ob- 
structed any  body  from  going  into  ibis  hay- 
of\  N—No.  This  was  about  bat fuD  hour  before 
Ktizabeth  Canuin^  was  come,  Mr.  Nash^ 
Mr*  Aldridge,  Mr.  Hn^^ue,  and  Mr.  Lyon,  were 
not  come  then.  When  they  came,  they  de- 
iired  me  to  go  and  desire  them  to  make  baste  ; 
Ihea  i  took  my  horse,  aod  went  und  met  the 
couch.  AfVer  this,  Canniog  came  dowu,  and 
was  brought  into  the  kitchpn>  and  sf!i  upon  the 
dre«»er,  and  after  that  into  the  parlour  ;  there 
she  was  ilevired  U*  fit  upon  the  pers^on  that  cut 
her  stays  off:  she  iixed  upon  Mary  Squires. 

Were  you  near  Elizabeth  Canning  then? — 
1  was  ;  and  so  were  a  jyreat  many  more. 

Did  she  see  8quires*&  face  before  she  fixed 
'U|Hin  her? — 8he  saw  a  hltle of  tier  faoe»  t  sup- 
pose. There  were  alM>iK  eif^hi  or  nine  people 
round  the  tire.    The  old  gypsey  had  a  liiile 


fdpe  in  her  hand,  wtttwg  urouchtoi;,  with  I 
lead  and  her  knees  tO|^ether  ;  and  as  Ctuni 
looked  rouod,  she  said,  Thul  is  the  wooi 
that  cut  my  si<iys  offl 

Had  Elizabeth  Canninf;  i^iven  you  atiy  ^i 
scrip! ion  of  the  person,  that  cut  off  her  ttsyi 
before  ?-^l  cauH  say  she  had. 

What  was  done  ifXer  Canuin^  had  ehai_ 
Iter  ?— Squires  ifot  up,  aiu!  said,  Whit,  1 
Madam!  did  i  cut  your  stays  off. ^  Caooiaf 
said,  Yes  ;  you  cut  mv  stays  off  in  «ucb 
place  in  the  kilcheu.  1*beD  ahe  weut  and  i 
down  a^ain. 

f)id  Maiy  8(juires  say  where  she  was  at  t^ 
lime  those  stays  were  cut  off?— No  ;  she  M 
nnl  mention  any  thin^,  as  1  heard. 

Did  she  u^irtiiiiin  how  lon^  she  had  beeo  If 
Wells^M  bouse? — No,  not  at  that  time. 

What  do  you  mean  by  sayings,  at  that  uaef 
Did  she  uL  any  other  time  ? — 8fie  did  aotiitlf 
other  time  to  my  knowledge. 

Did  she  desire  Canuinr  not  to  swear  h&  lift 
away  ? — (odeed,  1  don't  know  that  «be  did* 

Wl>at  was  done  afler  this  f-^Then  Ctnniiif 
was  carried  upstairs,  and  did  not  Bx  uiioo  tsf 
4if  the  roomfi :  1  think  there  are  three  of  tbea: 
ibey  were  going"  to  carry  her  farther,  andikf 
said^  1  W8S  not  carried  so  high  ;  1  did  WAp 
up  above  four,  tire,  or  six  steps  at  the  most. 

Whom  did  she  say  so  to?-- She  said  so (0 
me.  Upon  this  she  was  hrou>];ht  into  the 
kitchen  again,  and  the  hay -toft  do<»r  was  OM 
and  sfie  went  up  there  and  looked  about  Mi| 
mid  salt],  This  ts  ihc  room  in  which  1  was  CM* 
fined. 

Wiiere  was  she,  when  she  said  this  ?— Ulii 
she  said  as  she  was  going^  u'l  stairs.  I  befiew 
E  then  had  hold  of  bar  band.  When  she  wn 
in  the  room,  Mr,  Adam  son  nut  his  back  agaisit 
a  window^  and  a^ked  her,  if  she  could 


any  tbiug  that  she  could  see  out  ot  ikct 
window. 

Could  she  at  that  time  see  any  thing  oat  if 
it? — Then,  I  know,  she  could  not.  , 

But  could  she  before  he  bad  put  his  btokis 
it  ?-*-Ue  was  up  stairs  liefore  her. 

Was  Mr.  Nash  in  the  room  ihenf-^ffff 
likely  he  was  ;  but  1  don't  know  thaL 

VVhat  was  her  answer  to  Mr.  Adamsaosf" 
She  said  there  were  some  hilUaprettv  wif 
off;  and  ooe,  two,  or  three  houses  ou  ific  Jdl- 
band  side. 

Did  she  gire  a  true  detcriptioD  of  the  prsi' 
peel  '-"She  did. 

Which  window  wa«  this?— This  wis  tk 
window  nearest  the  fire-place,  in  the  ^tit. 
Ai\er  this  Mr.  Adamson  opened  Ihe  ^ittA^iw: 
the  girl  saiil.  That  window  was  nailed  a|i  whrt 
1  was  here.  I  lookt-il  at  the  uorth  wiadoWi 
where  she  got  out  at.  Thit  wns  a  little  ctsc* 
ment,  alMiul  9  by  IB,  or  10  by  20  :  then*  were 
boards  nailed  orer  this  north  window  i  it  seenil^ 
10  be  fretiti  done,  and  in  a  f  ery  cohbhoe  wt^: 
ihe  nails  were  not  drote  home,  but  b«J* 
double  ;  it  did  not  seem  lo  be  done  by  a  nuAi 
and,  I  thitiki  Mr.  Adamson  made  tlie  tMfltob^ 
servation, 


£1S]  ^  WUfd  and  Corru]^  Perjury. 

Did  yoe  mmke  that  obsenration  lo  any  body 
thca?— No»  1  did  not  We  all  went  away  to 
jMBfTtehinaker. 

Did  SbBabelh  Caoniof;  see  George  Sqniret, 
vbcitlw  wan  firvt  brou4|;ht  in  f— No. 

WbcD  did  «be  firat  aee  him  ?— I  beUeve  the 
BniMw  bim  when  she  went  into  the  parlour, 
•hea  we' went  in  first;  then  George  was  in  a 
niygmit  harry,  and  seemed  mnch  perplexed, 
•Ml  rail  up  siairs,  and  was  iffoing  to  go  away ; 
Jw  wu  bundling  up  some  stockings:  some 
|Npla«  two  or  three,  went  in,  and  said,  Where 
in  you  going?  >ou  must  not  go  away.  And 
Asy  would  not  let  bim  go  ;  and  brought  him 
irte  the  parlour  again.  Then  he  hod  a  large 
gmA-coat  on. 

Who  were  there,  two  or  three  people  ?— 
There  WM  cue  Ball ;  he  is  since  dead.  George 
Ifaim  grew  obstreperous,  and  wanted  to  get 
MmtM  window,  and  Ball  called  out  for  more 
bil^l  Hid  then,  1  think,  another  person  went 


A.  D.  1754. 


[514 


btillMked  veryi 
Are  lbs  palled  h 
■ide  Un  put  th( 


Hat  yKk  then  in  the  room?»-I  was  not 
WhsB  rMainff  was  brought  in,  she  was  asked, 
V  ifce  fasw  that  person  P  meaning  George. 
Bhf  wid,  ihe .could  nut  say  it  was  the  man, 
much  like  bim.  He  bad  be- 
hiK  great-coat  off;  then  they 
put  the  great  coat  on.  She  said, 
Bs  Mw  very  much  lik«*  the  man,  but  1  will 
MlDsaiively  swear  to  him. 

Where  was  this  ? — In  the  parlour.  She  said 
da,  there  were  two  girU  m  the  room  when  her 
iljswcra  cut  off.  We  had  her  out  into  the 
tthca,  and  brought  th<*m  in  one  by  one,  and 
ike  pitched  up4in  Virtue  Hall  and  Lucy 
flfwes.  Then  we  went  before  justice  Tash- 
■ikcr;  there  Canning  wan  exaniiiied. 

ttd  she  give  the  same  acc«iunt  there,  as  slie 

K to  you? — I  don't  kuuw  that  she  varied  in 
ceoutttatall 
Was  it  the  same  she  gave  Itefore  Mr.  A  liter- 
Ha  Chilly  ? — 1  will  not  be  piMitivc  <o  what 
the  fftfc  More  the  aldermau ;    I  can  reineiu 
kr  but  a  little  of  that,  about  how  she  wan 


Woe  you  present  at  the  trial  of  Mary 
l|Mrcs?-»f  was. 

Did  you  hear  her  give  her  evidence  in  this 
CMtr-1  did. 

Ciuld  youobserveany  material  difference  lie- 
bN^  that  and  what  she  did  before  justice  Tash- 
Mkerf^No,  I  coukl  nf»t. 

flsdyou  any  reason  at  all  to  doubt  her  story  f 
"41s,  I  had  none  at  all. 

Did  Ur.  Nash  say,  as  l»e  was  going  home, 
k«ss  not  sal i»lieir with  Cauning's  account? 
*^  iliil  mil  apiiear  to  be  dia»satisned. 

iWMr.  Hague?— No. 

Mw  Mr.  Aldridge  neither  ?— No,  Sir. 

Did  }oo  dine  at  Newingtou? — No,  I  did 

Crosa  examined  by  Mr.  WilUi. 
Dsa'i  vuu  subscribe  towards  the  support  of 
CMBiagf.-*Nti,8ir. 
Ip  youn  a  lawn  or  ale-honsa  ?— An  ale- 

voiu  XIX. 


At  the  time  Canning  lived  with  you,  was  she 
at  all  food  of  men  ? — ^No,  she  was  not 

UowoM  was  she,  when  she  came  first?— 
She  might  be  about  seventeen  years  of  age. 

What  was  the  reason  she  left  your  service  ? 
—Because  she  got  a  better  place;  that  was 
the  only  reason. 

Was  she  employed  in  your  house  in  serving 
customers?— Sometimes;  very  seldom.  She 
very  seldom  came  into  our  outward  room 
amongst  the  customers. 

How  came  you,  on  the  trial  of  Mary  Squires, 
to  say  she  had  a  bed-gown  and  a  cap  on?— -I 
say  now,  I  did  not  kDOw  whether  it  was  a 
cap. 

Did  you  call  it  a  cap  or  handkerchief  upon 
that  trial  ?— I  don't  know  which  I  then  said. 

Do  you  know  Robert  Scarrat  ? — I  do. 

How  long  have  you  known  him  ?— May-be 
a  year  and  a  half,  or  two  years.  He  is  a  harts- 
horn-rasper. 

Has  he  used  to  use  your  house  ?— Yes,  he 
has  as  a  customer. 

Did  he  use  to  use  your  house  when  Canning- 
was  your  servant  ? — No ;  he  may  once  or  so, 
but  1  don't  believe  he  did. 

Did  you  know  him  before  this  accident  hap* 
pened  ? — I  hardly  did. 

How  came  you  on  Sqnires's  trial,  to  give  no 
account  of  what  passed  at  Enfield  ?— I  believe 
I  did  not. 

How  came  you  to  omit  so  many  material 
circumstances?— I  believe  the  geuUemen  did 
avk  me  no  more  then. 

Was  White  in,  when  you  first  came  down  P 
—No.  he  was  not 

When  she  was  carried  into  the  kitchen,  and 
set  u|)on  the  dresser,  did  she  say  she  had  been 
in  that  room  before  ? — No,  I  never  heard  her 
say  HO. 

Did  she  say  there  were  trees  grew  against 
thtti  wiuilm% ,  when  Mr.  Adaiiisun  had  his  hack 
HKuinst  it  ? — No,  I  ilonH  remenihe:  it  I  re- 
meiiihor  1^1  r.  Adaiiisnn  turntd  alK>ut  and  opened 
the  window,  and  looked  out:  she  said  then, 
that  casement  was  nailed  up  when  she  was 
there. 

Dili  you  make  any  remarks,  whether  there 
had  been  nails  lo  fasten  it? — No,  I  did  not  in* 
spect  into  it 

Can't  you  recolleet  what  she  said  Iwfore  al- 
derman t'hitty  ?— 1  remember  but  little  of  what 
passed  there. 

Mr.  WUletXo  T.Gurnetf. 

Turn  to  your  notes  of  what  this  evidence 
said  on  the  trial  of  Squires,  concerning  what 
passed  before  Mr.  Alderman  Chitty.  Can  you 
swear  to  them  ?— To  the  substance  of  the  evi- 
dence I  can  ;  though  not  always  to  the  exact 
words. 

Do  you  ever  put  down  any  thing  you  don't 
hear  ?— -No,  never. 

Give  the  Court  an  account  what  you  havo 
there  nut  down.  On  that  trial  this  evidence 
was  ayked,  if  he  had  heard  the  evidence  Can- 
ning had  then  given  ?  To  which  be  answered, 


TMrf 


rltii  mmamjf—thtmrAmS!!!,kmm 


^K    W^  1      k^B^^    ^       ■  ^     ■  fc  _.       M 

^^  '^^^  r       9  WWH  Wf  flVv  vNV  BiCft  md  B^V  flMH 


VmC      I  «M 


kMBiri  vvy  ^oB  iHiai  joQ 
ln«IF'lla,itaiiliiQL 
Tim  lnif«  beard  ibgiiiHi  laiin 


LtiiUtt 


UlwmAm 


Vr.  Hhiilw     Dili  j^ifc  aril  CmwSm^lm 


mmtf 


■fll^  lAilci^  lbs  WBia  VMI  oitt  1 

mil  «if  Mjr   Ci^  hH^  iny    i 
^ydi  mm  Wrm.  Wdkf—l  tee  1 

tWo  1r  "rtr  -ir-  mhm  M  ■toBrril 

lii^  ?^^I  dD  QQi.     Mr-  tliii,  ite  »» 1 


«MitMiMil»rtote4 

it  ■"■i  fiiit  li««t,  m  I^m^  gt  iMid  mI  1 
tber«  B  Iqs^  lime,      ^lue 


Hi  I  t 

■Id,!  til 


been  «Miie  put  iMrifi 


ttiotigfaiilwreiiisjuii^  larl 


Jir  W^ul  and  Corrupt  Pcrjuri^* 


Sw  175^ 


Lis  mk*  ob«9T»lioiL,  anil  did  oot 
lii^beeo  «oy  brought t  Ln  ;  because,  if 
iMn  9MNi  hive  beeo  tome  scattered. 
]  iuid  g«»l  the  ju^  and  basau,  ftud 
^tftiloipi  thai  ahr  knew;  bull  cauH 
i^  cune  Ici  })i(ch  upon  ibetD,  becuuic 
king  obeerrntroni  oo  the  haj.  1 
|i  direetly  between  ber  and  ilie  cait^- 
lamiil  rooDd,  lAd  set  nty  back 
I  caiecneiit,  md  nid,  If  you  bave 
ladin  lbi»fOocn  m  long,  yon  will  be 
IsftryjNMd  aeeoimt  of  it,  and  1 
I  witL  8be  sftid,  That  w%n  nailed  up 
^  here.  Wbftt,  boarded  upP  laid  1, 
le,  but  I  tmd  to  open  it,  and  could 
[*tfe#i:ribed  fields,  and  a  hill  at  a  dia- 
ae trees;  but  the  most  remark^ 
\  bouaes  to  be  aeea  oa  the 
ibDe. 
|abe  said  so? — t  aai« 

)  fbe  eould  not  see  tbetn  when 

f  Jito^  90«  that  I  am  sure  abe 

80  betwixt  tbem  and  her. 

rmrn  had  all  looked  out  to  see 

liOQ   answered t  1  asked    her, 

looked  out  to  see  I  he  Hertford* 

I  pointed  to  the  window  whirb 

I  and  sard,  That  is  tbe  window  ; 

the  window  that  I  made  my 

[look  to  fee  whether  there  was  any 

nk  any  body  bad   g^ot  out  f — J 

ber  uncle*  to  pull  the  boards 

1  all  Ibc  i^eollemen  to  see  tbal 

aame  condition  with  the  real 

tbe  room,  with  cobwebd,  aa 

rtlftd.      The  wood  was  fr^h  split 

Iff  a  g^reat  nail  through  it,  and  ap* 

^etb  aa  it  could  be  \    that  is,  the 

titoite  fresh* 
fck  before  you  puUei)  tUrm  down, 
llling  them  ibwn  ? — That  was 
mpted  to  pull  them  down. 
baa.  Waa  it  hoar<Jed  all  over  the 
^AdamKn,  It  was  boarded  Hke  a 
^.  It  waa  one  piece  of  wainscot 
llatr  arnma,  aud  covered  it  alt  pretty 
ioo.  There  waa  a  casement  im  the 
pidtf  and  tbe  other  aids  bad  nothing 

)y  Mr.  Aforlon  (cootifitied.) 

I  make  any  observations  on  tbe  out* 
^wiodow,  whifther  there  was  the  leai^t 
^Of  any  thm^,  aa  though  any  body 
^  tlivra? — Colley  aud  I  went  out ; 
pi  ibtt  aoriaee  of  the  plaister  wa^i 
wM^  and   mm  shewed  it  to  sefeml 


?— I  don't  know 
\  ^kmrn  mmm  m  ^nmi  many  people 
I  tbi  frtflh  pieces  of  the  marrnr 
^  llMi  bebw  tbe  window.     Just 
r»  bilvrts*  tJI«  plaiatenu|(  and  brick- 

Mr.  Ha^^ne  and 
ftlr»AidrMlg<aMHt 


1  both  made  obierv.^tioiui  oo  tbe  girf^s  paumu|p 
a  Utile. 

Did  Mr.  4  Id  ridge  aeem  to  shew  any  diasa* 
tisfsctioo  upon  that  thenP — No.  I  obserted  A 
large  pitcher  in  the  parlour,  when  we  fiist  went 
in.  There  were  six  or  ei;;bt  of  us  went  in, 
two-and-two ;  and  wl^n  iber»  wia  n^  raaa^ 
an(%,  I  and  Air.  Colley  went  bebind  the  hosMk 

Did  yon  see  a  pitcher  in  tbe  bay -loft  or 
workshop?— I  did. 

Look  at  this  pitcher ;  do  you  know  it  ?— I 
suppose  tiiat  is  it,  it  ia  like  it ;  I  saw  it  since  at 
Ibe  inaiiiiov*  house  before  my  lord -mayor  ;  il 
was  broken  as  this  is. 

Did  you  carry  tbe  pitcher  there  ?^^Ne,  Sir; 

Do  yen  know  any  body  thai  did  f — No,  I  il» 
not. 

Did  Canninfr  make  any  observation  on  tb# 
pitc'ber,  whether  it  was,  ckr  waa  not  tbe  pitcbeiv 
that  was  in  the  room  when  she  waa  there  .^-— t 
did  not  bear  that  \  1  was  making  obaefvalMi 
on  the  hay  then. 

Cross-examined  bv  Mr.  Dasjf. 

Was  tbe  door  that  leads  up  into  the  workn 
shop  open  or  slmt,  when  she  went  mto  the 
kitchen  the  first  lime  P — I  really  cannot  tell. 

U  beu  she  was  gone  from  the  kitchen  to  the 
stair^caseof  tbe  hooae,  what  did  ibr  say  there? 
— She  said  at  the  bottom  of  it,  &he  t>elieved 
that  wui  it. 

How  many  stairs  were  there?— T  cannot 
tell ;  there  is  a  batch  or  door  on  the  tn|>-»tair. 

U|ion  your  uath  could  she  not  see  the  whole 
flight  of  Ktairs  up  trom  the  biitlam,  where  ^he 
then  stood  ? — Upon  my  oath,  I  cannot  tell  wb^ 
ther  she  could  or  not. 

Was  that  si  air- case  any  thing  like  the  few 
little  sieps  that  lead  up  mio  I  he  hay -loft?— 
There  ia  a  very  greek  deal  nf  difference. 

Did  you  ask  her,  how  she  could  make  tbal 
mistake  ?-*!  did  ;  end  said,  Vou  see  you  wat 
once  tnife^taken  in  tbe  siair-rase. 

What  t%as  this  in  un»wer  lo  ?— She  had  said, 
That  was  the  corner  where  the  girl  stood  and 
laughed  at  me,  when  my  stay*  were  cut  off  j 
which  fthe  anid  afterwards  was  V^irtue  Hall. 

When  yuu  sianil  at  tbe  bottom  uf  the  stairs 
leading  up  into  ibe  wurbslxip,  doo*t  you  soe 
there  are  but  few  steps? — I  cannot  tell  whether 
tbe  ste|w  are  without  tbe  door,  or  ai^r  tbe  duor 
is  open? 

If  ow  long  was  she  in  the  kitchen  the  second 
lime,  before  she  fixed  upon  the  mom  she  was 
confinefi  in  ? — 1  believe  »be  was  led  op  into  tiM 
room  direcily. 

Was  the  door  open  thco,  when  she  cam# 
from  the  other  stairs?— 1  believe  it  waa,  and 
some  people  going  op. 

Uidflbcsay,  when  she  was  in  tbe  kitcbev, 
(p^Hoimg  to  the  door)  That  is  the  iloor  that 
leads  to  the  looin  1  wmk  confined  in?— I  do  noi 
remeuiberthat. 

Who  sbitfik  up  tlie  bay  f — I  do  not  know. 

i^}i(m  your  oatb,  di«t  oot  yov\^  when  you  wai 
op  theitf,  put  your  band  iulo  the  hay  f — Yea  \ 
\  did,  to  shew  it  waa  light ;  1  ••€  ny  tisot  up«a 
ittel. 


6191 


57  GEORGE  IL 


Were  Mr.  Nash,  Mr.  Aldndf^ef  and  Mr 
Hof^iie,  in  ibe  room  then  T— I  c^innui  tell  whe- 
ther Ihey  were  or  Dot ;  I  htlie? e  lliey  were  tirit* 
They  iiiiy:ht  l>«  all  ihere,  or  dodc  of  thero,  for 
au|ftit  I  kuow. 

How  much  hiky  wiis  there  in  the  room  ?^ 
think  Iherf  rni^bt  \te  n^ioiit  hair  a  load,  or  iDOre ; 
1  cftitfiol  tell  liity  by  ibv  bulk  of  it. 

LI<m  earneSi^arfHl  atid  you  to  toss  up,  wbidi 
ih^iild  (/o  back  i*»  Conmnii? — It  was  an  in 
different  |H*rKOD  »atd,  Ttt  end  dispute,  ^^ou  bad 
beiipf  l«»iiii  op.  IVe  hftd  some  words  after 
Ihat ;  anil  1  went  at  la^it,  hut  agatosi  my 
will. 

How  f lime  you  to  have  words  after  it  was 
decid«*J  by  lotr^AfierScarrat  had  won^  i  laHJ, 
he  «as  iCi  pfo. 

Had  nny  iKiily  obserted  at  th^ttime,  that  she 
had  not  mrniioupd  nny  bay  bt-ing^  in  the  room  ? 
< — I  liati  not  I  tea rd  any  li»iiy  nu  niton  tiny  thin^ 
ahoiil  tt  ;  but  when  1  went,  she  lutd  me  there 
was  some. 

VVhaf  did  yon  mean,  when  you  came  hack, 
in  saying".  We  art-  all  ritfbt,  shaking  your  hot? 
-^Ciuiiig  thfOtit*h  ihe  Waaht  my  horse  got 
away  from  me.  (I  bebeve  1  hua  my  hat  in 
my  hand.) 

Were  you  rejuiced,  when  she  taid  there  was 
hav  ?— No,  Sir. 

\V«-re  you  surprised  ? — Na»  Sir. 

Why  dill  you  tell  them  there  was  hay  in  it? 
— Becan**e  she  said  so. 

Why  bboubl  you  come  back  to  tell  ibem  Rhe 
•aid  there  was  bay  in  U,  jf  Nbe  hail  nt<ver  observ- 
ed there  was  bay  ? — I  itmi'i  retiftmber  any  body 
ohserted  dm  had  uni  inefiiioneil  hay. 

Had  ynu  beurdshe  hud  ileacriheti  *h>?  parti- 
culars of  the  runoi  P— f  had  nevtr  heard  she 
had  given  a  liejicripUon  of  the  room* 

Then  why  did  ynu  ^n  to  Enfit^ld  Wa-«*h  ?— 
I  wi^nt  wiili  Mr.  VViutlebury  for  company  ;  he 
desired  1  would  p»  with  him.  The  warrant 
w  as  gone  down  beibre,  and  we  went  with  au 
inU'Ut  to  meet  them. 

Hadyuu  been  before  the  sitting  alderman  f 
No,  I  hdd  itot. 

Bi<(  you  ^o  down  toaasistio  iakiii|i:  the  pen- 
|de  U|i? — f  did  nut  know  any  body  woubt  be 
taken  up. 

Dill  ynu  flfo  ifowii  to  see  whether  the  room 
answered  the  dt-scnplnm  ?— I  had  not  beard 
her  de«JcTibe  nny* 

Do  yuu  rr'mc'iuber  your  aavintr  these  words, 
Whttt  hay.  Bet?  — J  dciu't  remember,  that  I 
e?er  laeutioned  ihe  wiwl  hay.  (  remember 
•he  «*ard  hay,  and  mimi'tiitiiv^  else  ;  and  I  aaid^ 
Ami  ivitjtt  ?  then  she  (old  lui^  a  fire- place. 

Wht-tlier,  belV»re  yim  put  your  Iim:k  «o  I  be 
windn\«,  bad  you  nut  heard  she  bail  ifiven  an 
•CCtMiui  ot  »o*me  partfcujars  in  the  room  :'- • 
Nii,  I  had  not.  I  dill  it  to  aee  whether  she 
coiitd  |fi*e  au  areount  of  the  proapert  or  no. 

8bou'd  not  yiin  think  it  uiore  advisable  for 
the  peop  c  to  be  satiihed  with  the  account  Bhe 
could  ♦fi^e  iif  the  ibiu^a  in  the  roooj  first?— 
Sbt  waa  in  the  room. 

Upon  your  oath,  did  ahe  tell  you  there  were 


Trial  ofEUtaheih  Cannings 

trees  tn  be  seen  out  of  the  wtiidawf— Y««, 
diit,  ujKui  my  oath. 

Where  did  she  stand  thenf-^Sbe  waa^ 
by  the  casement. 

'  Did  you  fill  the  window  imi  that  %he  c< 
noi  possibly  see  treca? — I  stood  so  mmr  I 
ih.li  1  beheve  «he  couhl  not  see  <Mil  al 
utadow. 

Are  you  aure  abe  could  not  «ee  te^eesf— 4b< 
lieve  she  coutd  not. 

Were  you  close  to  the  window  f — ^Na, 
clo«e  to  that,  but  cto«e  before  her ;  wbicb  1 
think  would  answer  the  end,  to  prevent  h& 
lookm|s;  out,  better. 

How  far  was  «he  from  the  window ?^Siht 
mi£(^hi  lie  two  yards  from  it,  and  I  a  yard  aiii 
halt. 

Was  the  window  hoarded  ? — It  was  n«l  I 
afiked  bt-r  the  (juesl)ou  ;  she  Baid|  it  had  IM 
heeti  buuntfd  up. 

Did  ytiu  ever  are  a  window  in  the  ooutlij^ 
where  there  have  horn  no  hills  to  beseMii 
of  it  ?-»Wa,  1  bai^e,  ujmn  the  sea-eoasti, 

H«w  lous;  bad  bbe  U<-en  in  the  room  bifiw 
yuu  tried  ihi^  eikperiment?**' About  tive  arai 

QlUUItt'S. 

Had  she  not  time  enough  to  look  out  tbiK? 
^-"1  dou't  think  she  had. 


By  ^\t.  Morton. 


hon^^H 
ibefimP 


When  did  you  hear  she  was  come 
I  ni'ver  heard  she  was,  titl  the  night 
went  ilown. 

Did  ynu  ^0  down  ruluntarilv*  as  a  fnetd  (f 
the  ifin^  or  upon  reipiestt? — N^o;  it  wss  dp 
the  reipiestol  Mr.  Wiotlehury,  and  othem  ' 
wan  just  come  off  a  journey,  and  took  alHad^ 
liorhc  without  leave. 

Did  you  tetl  Mr.  Lyon  there  was  a  if* 
place  or  chimney,  as  well  as  hay? — Y^i ' 
metMioned  b'^tli  to  hira. 

Did  Mr.  Lyon  hear  your  ohsertationa  ooUt 
buy  ? — No;  he  then  was  engaged  in  thert^ 
band  corner  of  the  rnoni ;  there  they  hid  |* 
the  ju^,  tt  huson,  and  tobticco* mould. 

Hup|iONini>^  she  could  aee  the  trees,  cooWtfc^ 
seethe  buuses  on  ihe  lelt  hand  side  the  arfj' 
-^No  ;  theai  she  coubl  not  M-e,  till  i%pl4M)br4» 

WJiHt  is  the  character  c«t'  £lizal>elh  CanoiflC' 
—  I  ueter  he'ird  a  had  charncirr  of  Ijer  Ik^ 
this  in  my  iife.  I  always  tookeit  upon  \\a^ 
be  a  g:irl  of  a  good  character. 

By  Baron  Leggc. 

At  the  time  you  iiood  there,  and  asked  vbit 
could  b-e  seen  out  of  the  window,  and  *bew 
trees,  and  hilU  ai  a  distance,  diit  she  tdl  y^ 
what  was  beiwut  Ihetieea  *nd  the  window. •- 
[  ttonU  leiuember  any  ihiny;  she  said 

Dill  she  mention  any  foot- way  near  itidf? 
—No,  no!  as  I  remember. 

Were  the  boards  pulletl  down  from  the 
dow  before  (be  ffirl  cam**  ibere,  or  alter f-— 
They  were  not  pulled  down  till  at^er  she  otnMr' 
I  askt'd  her,  which  was  the  wmdow  fio#> 
1%  hence  she  had  seen  the  Hertfordshire  cotckf^ 
8))e  said,  That  ^  and  pointed  to  it  Tli«]i  1 


m] 


Jffr  tVil/uI  and  Corrupt  Perjury* 


A,  D.  n$^. 


U(V  i«e  whether  me  cjin  §ee  the  roarl  out  at  il 
Pf  n,.»  iViMn  I  wi*tit  to  pull  »he  board  ilfiwii^ 
a  >*lio  Nnid  li€  naa  bi?r  uncle  helped  j 

t  havpjft^rn  Jhe  Flerlfordshire  coach 

tKMiril  was  then  up? — 1  miL^Ul,  fts 

t(  tti»  Ixglii  Of er  ibe  huird,  had  1  lutiked  oter 

Were  there  nn^  criiclif  hijLf  enough  in  the 
kird  in  look  ibrou|riif — 1  caoitot  h*y  there 
V9e* 

Suiherton  Bakter^morn* 

Btkkr,  I  hve  at  Alderroanhurv  Posleni. 
I  iTM  •pfilied  i»  Oh  thf  SOlh  ot  January^ 
lie  dftj  iHer  Elizabeth  Cattrkthg;'^  conifnif 
ImMw  ia  cooie  to  her.  I  mtendeil  her,  uai 
in  «  «ery  hfw  ami  wf>iik  lotiditioo. 
ivitw  eviremeiv  lov¥«  thsit  I  could  si-urcely 
ker  9)iaik,  Hhe  was  it)  bed,  with  cohJ 
r  fweals  upon  her.  .Slie  cmuplnioed  of 
IMif  m^  faiiiC  utid  Rtck  at  titnen^  with  a  pain 
il  MT^Mifls  ;  and  comphiincit  uf  having  been 
Ctalivciifire  time  of  her  confinefvieut  I  or- 
dbrarflMra|Kirgin^  medicine;  but  hentomacb 
wm  lM«  i^eatCf  aod  could  not  l*ear  the  mpdicine 
tkm%9Qk.  Finding  that,  I  ordered  a  glvsler  to 
l^tdBMUAirred  on  the  !jOth  in  tlie  evening. 

Mr.  Natm*   Did  they  gtwe  U  her  ? — Bakfcr, 

TWyihtt  I  think.    1  also  ordered  opening  me- 

Umm  lb#  Mtftte  d;iy.    She  had  no  niore  medi- 

mm  IBI  ibir  Sd  of  February  :    then   I  orderi^d 

glysler,  that  had  some  htile  effect,  and 

I  mwmy  aoine  stcall  quantitVt  but  did  not 

*ff  the  end.     1  orilered  her  anoilaT  on  the 

Ink,  that  had  no  effect  at  ull.     She  conlmtitMl 

Mil  bad*     Dr.  Eaton  woa  gent  for  upon  the  6lh. 

JPtirrt>l#  |»roper  prescriptiotia  for  her  for  14 

m  long  wasihe  More  she  had  her  health 
'ly.?— He  pre^il>fd  diuretic  medicines 
oatbarlict;  and  after  a  fortnight  he 
WM  cocne  poiat  tliree  or  four  daya,  and  she 
takrraMy  well  in  about  a  month.    Her  face 
*  very  wao.     Her  face  used  to  be  of  a 
lie  red   complexion;    but  her  colour 
one,  and  her  arms  of  a  livid  colour^ 
hail  known  her  some  years. 
*A#l  vftrf  t'Vfr  attended  her  with  medicines 
^•'  ,  never, 

to  f^o  10  En6eld,  when  the 
f*Jit«r'^  1(1  the  effect  ? — I  thought  she 

tliferji  o  bfar  it^  and  wondered  thai 

■bdtd:  1  thought  ft  extrpmely  improper.  I 
llprteht  «h^  rooht  not  hear  the  fatigue. 

V  '■  you  iroagtnr  those  symptoms  you 

^'  r  ID  beottirtg  lo ? — I    don't  know 

^1:  very   touch    emaciated  and 

^Itelf  I  [  fthe  wns  when  I  saw  her  t>e* 

lla  you  think  the  confinement  you  hate 
kmnk  m  wotdd  not  occaaton  it  ? — To  tie  aure, 
^itiag  upon  what  ah^  nays,  «he  muwt  lie  very 
mmmmi,  Ur.  Eatori  waa  called  in,  be- 
Ibtj  i^Qght  her  tu  a  very  dangerous 

k  llif  a|>ptstmoce  of  her  it  ib«  liiii«  thai 


you  saw  her,  uas  there  any  appearance  of  her 
having  been  in  a  Ruhintion  ^--SSihe  wjis  verv 
much  emaciated  and  vvusted,  to  be  srre;  but  I 
never  did  see  a  person  as  «oou  aa  ihoy  catiie 
out  of  a  talivatiou  in  my  life,  oi'  atlen^led  on^M 
in  tl< 

Had  »he  any  aopc^arance  of  a  woman  ihaf  | 
had  l)een  hrouifhr.  lo  liedP-^Sbe  looked  like  m 
person  half  i»1arved,  tn  a  weak,  wasting,  di« 
cayiiit?  way  :    but  what  was  the  cause  ot  it,  I 
do  not  know. 

CrOHs-examtned  hy  Mr.  WUk$, 

When  she  comphiined  she  had  no  &too|,  wbal 
did  she  say  about  making  v^aKr?  —I  believe  she 
did  not  make  wafer  till  tl>e  dnrtur  had  atteoded 
lier,  which  wati  not  till  the  sixth  day,  by  giving 
her  diuretics. 

How  long  did  she  say  she  had  been  wilboui 
a  stool  ?'>'She  said, she  had  not  had  any  during^ 
the  time  of  her  confinement;  hut  did  not  say. 
iihe  had  not  made  water 

Did  5he  say  aUe  hat!  made  water  ?•»!  do  not , 
remember  bht?  said  she  h^d  made  water. 

Mr.  Morion.  Do  ^<>u  believe,  that  a  prrsoi^ 
that  is  half^slarved  is  not  so  fataa  a  person  thai 
is*  full  fed?— £<jA:/fr.  No,  to  be  iure»  l^ir,  hft 
cannot. 

Mr,  WilUi.    What  colour  were  her  na«ls  ?•- ^ 
Bdkler.    Her  arms  were  black  and  livid,  and 
her  nails  looked  of  a  sort  of  a  blueish  cast. 
Dr.  Eaton  sworo. 

Dr.  Eaton,  I  am  a  physician.  The  6rst  of 
my  attendintf  Elizabeth  Canning  was  at  her 
ttiotliei's  request,  on  Ihc  6ih  of  February: 
hearing  it  was  a  compasciiooate  case,  I  allenrled  , 
her.  I  found  her  in  a  very  weak  condition^ 
and  was  very  apprehensive  she  wouM  die:  she 
appeared  to  me  to  be  in  very  great  daii|^^er  for  m 
few  days.  She  complainatf  of  colics  and  paina 
ill  her  bowels,  and  eouUl  acarca  keep  any  ihiDg^lJ 
upon  her  stomach,  I  can  tint  say  she  entirely 
kept  her  beil.    Hhetook  a  little  chicken  broths 

Mr.  WiiUumn.  Did  you  see  any  signs  of  ati 
imposture f— Dr.  Eaton,  Mo,  1  saw  none  at 
all. 

Had  you  heard  she  had  been  away  from  her 
friends? — I  had,  I  was  very  full  id  biwioeas  : 
1  only  attendetl  to  her  %  I  did  not  ask  questions  , 
alMUt  her  coufuiement.  1  found  she  was  cot* 
live  to  a  very  great  degree.  8be  had  bad  4>iiar 
e^iool  before  V  came,  I  happened  to  see  tha 
ajKithecary,  and  he  was  relating  this  ease  i^ 
me:  he  was  saying  wbat  he  intended  to  giv* 
her.  I  said,  mild  things,  after  so  long  fasting, 
would  be  better  ;  and  he  gave  it  her,  and  it  had 
had  some  L'tfect.  It  wai  seven  or  eight  day* 
before  the  donger  began  to  be  over. 

How  long  did  you  attrnd  he i  T — I  attended  be r 
from  liie  6th  to  the  201  h  ot  February,  the  20th 
included,  every  day  ;  and  after  that  every  other 
day,  for  a  few  dnys  \  the  laid  time  was  on  iba 
41  h  of  March!  when  she  wav  well  enouf^h  to  ga 
abroad  in  the  neiifhbourhood ;  and  ]  betievtt 
sbe  had  been  abroad  a  day  or  two  before  thai. 

Have  you  not  had  objects  under  your  care  in 
saUratjoua^^i  hare^ 


523J 


f7  GEORGE  U. 


C5M 


vol 
Iik( 


Whether  that  doei  Dot  leave  Tery  remark- 
able symptoms  Id  the  mouth,  throat,  and  hreath  ? 
—Yes ;  it  does  for  some  tiiae  after. 

Was  there  the  least  symptom  of  thisP— • 
Oh  \  DOtliiDg  like  it,  nothing^  like  it,  I'll  assure 
ou,  notliinf^  like  it  in  the  world :  it  was  nothing 
':e  coiuing  out  of  a  salivatioo. 

Did  you  observe  her  arms  or  legs  ? — I  did 
not  take  so  much  notice  of  them. 

If  you  bad  not  been  told  the  real  case,  what 
thould  you  have  imagined  it  to  have  been  ?— 
I  canU  but  say,  the  case  corresponded  with  a 
person  that  had  suffered  hunger,  thirst,  and 
cold,  and  great  hardship. 

Cross-examined  by  Mr.  Dav^. 

Did  3ron  observe  her  hands  and  legs  ?-— No- 
body desired  me  to  take  notice  of  her  hands 
and  legs. 

When  had  she  her  first  evacuation  ?—She 
had  the  first,  the  day  before  I  came,  which  was 
the  6th ;  then  I  heard  that  she  bad  bad  one  the 
day  before;  and  1  believe  she  had  the  next  day 
after. 

Was  there  an^  difficulty  after  that?— There 
was ;  and  medicines  ordered  pretty  commonly, 
to  the  90th.  I  gave  her  diuretics  a  pretty 
deal. 

Had  you  any  conversation  with  her  ?— I  had 
none  at  all.  I  was  very  full  of  business  at 
that  time,  and  I  did  my  bushiesB  as  well  as  1 
could. 

Did  yod  examine  any  eatward  appear- 
ance?—No,  I  did  not.  They  complained  ahe 
bad  too  little  evacuatioo  by  urine. 

How  was  ber  pulse  ?-l8he  had  a  singular 
p«1sa :  1  was  afraid  of  her  fallmg  inta  a  ^ver, 
and  I  ordered  that  which  was  material  for  a 
fever. 

Had  you  never  a  patient  in  this  oonditioB  be- 
fore ?— Many. 

Did  all  their  disorders  proceed  from  h*inger, 
thirst,  and  cold?— No.  She  was  weak  and 
emaciated,  and  her  stomach  weak.  When  we 
preacribe  for  a  person,  we  attend  to  all  the  cir* 
cnrostaoces,  and  ask  ail  the  (questions  necea- 
aary  to  let  us  into  the  concomitant  symptoms. 
I  formed  my  opinion  from  what  1  found,  a  low, 
flashing  pulse,  and  flutterid|r.  Every  thing 
oorrespooded  to  what  they  said ;  and  therefore 
J  bad  no  reason  to  disbelieve  the  story. 

Whether  all  the  symptonM  you  obaerved  in 
Ibe  defendant,  might  not  ariaa  from  another 
cause  than  that  which  is  now  assigned  P — I'll 
give  you  the  best  account  of  that  I  can.  It 
ttiight  possibly  in  part  arise  from  other  caoseai 
and  it  might  not 

May  not  a  person  be  reduced  to  a  low  state 
by  a  fever  P— To  be  sure,  tbey  may:  if  I  am 
aent  for  to  a  patient,  and  they  tell  me  they  have 
wffered  with  hunger  or  thirat,  I  Mver  doubt 

That  ia  not  the  question:  ia  H DOt  possible  a 
ptraon  may  be  reduced  to  the  condition  sbe  ma, 
by  acme  other  ailmeotr—1  think  It  ia  possibte. 

Might  Mt  ahe  be  in  the  eoodkiaB  yM  saw 
her,  and  yet  her  whole  atory  •  gtmX  lyf— 


All  I  can  say,  it  nught  proceed  firea  aoollMr 
cause :  but  I  must  beg  leave  to  mentien  ens 
thing,  and  that  ia»  it  may  proeeed  from  anntbae 
cause,  as  when  in  a  fever  a  personli  eCeMach  m 
taken  away,  then  that  caeae  of  hunger  ceaoi 
not  by  force,  but  because  they  can't  eat ;  bnl 
the  consequence  was  such,  it  aaoet  pntmi 
from  her  having  lost  her  appetite  some  way  ee 
other.  A  persiin  may  lose  their  appetile  by  a 
fever,  or  bjr  force,  li  is  plain  she  bad  net  eal 
for  some  time. 

If  they  had  not  told  you  that  Ibia  giil  bad 
been  halt-starved,  and  kept  from  meat,  drinks 
and  exposed  to  cold,  should  you  bate  can- 
cluded,  upon  your  own  observatione,  theft  abf 
had  been  so  used?--!  should  have  cc 
she  had  either  by  distemper  loat  her  t 
i  or  by  some  other  accident. 


By  Mr.  Ncres, 

Is  it  possible  for  one  to  live  twenty-e^ 
days  wilhont  any  more  subsistenee  than  she 
BEMUtionsP- -There  is  no  doubt  of  the  |iiwiii 
lity  of  a  person's  subeisting  twenty-eight  dnys^ 
aa  in  this  caae. 

Did  you  observe  the  defendant'e  ear?— 
There  was  a  disorder  behind  her  car.  After  I 
had  attended  her  seven  ur  eight  daysytbe  enr- 
geon  was  taken  ill,  and  they  had  not  msntjansd 
that  to  ine  till  then ;  upon  which  1  looked  npeg 
it:  it  ImuI  inAaaMd  her  face,  and  ibveataned  i 
something  like  a  St  AOibeny'a  ftre»  and  1  «• 
dereil  a  liHoenutiou  ior  it 

Whatmiurbt  cauae  it  to  be  ao  bedr— Itab 
it,  her  bad  habit  of  body,  concurring  with  tbil 
acre  ujMHi  ber  ear,  oecasHMied  that  liltt  n  8t  Aip 
tbony'a  fire  upon  ber  ftwe. 

Mr.  Morton.  We  are  now  coming  to  Ei* 
field -Waah. 

Robert  Beatt  sworn. 

Beak.  I  waaill  last  Christmaa  waatwdft-, 
month.  I  attend  Stamford- Hill  turnpike  it 
Tottenham  road,  towards  £nfield,  betwixt  Tsl» 
tenham  and  London :  about  the  middle  of  Fa* 
bruary  I  heard  of  thia  story,  about  a  girl  beiif 
forced  away  from  her  friends  near  MoorfisM% 
to  a  bad  house  at  Eufield-Wash,  and  had  bsM 
kept  there  a  month  on  a  pitcher  of  water  md 
some  mouldy  crusts. 

Mr.  Morton.  How  did  you  hear  of  k?««« 
BeaU.  My  liitle  children,  about  eight  or  nias 
years  old,  brought  the  account  from  schooL  1 
said,  upop  hearing  this,  I  believed  I  waaat  tht 
gate  when  the  poor  girl  came  by. 

Give  an  accniiiit  of  what  you  saw.— Abeit 
the  fore-end  of  January,  I  waa  atanding  at  tht 
gate  between  ten  and  eleven,  or  near  c^ven  M 
night;  it  was  a  very  calm  still  night ;  I  tieaid 
something  of  a  sobbing,  crying  voice ;  it  cane 
from  towards  Newin§^n,  going  towarda  Taf 
tenham;  and  fintt  1  saw  mdmly ;  1  atoedaliMi 
it  eauM  nearer  me. 

How  far  off  do  yon  imagine  it  to  bei  wkm 
you  heard  the  sobbing  at  firat  f—It  may  hi 
two  erihne  knndrcd  yai^    Atlnitl|e^ 


Vjftr 


Jbr  fFUful  and  Corrupt  Perjury. 


A.  D,  1754. 


r996 


iwerv  more  than  one,  Af  thej 
1  SAW  ihtte  mere  two  men ,  and  m 
m^  Krmifii^ly  by  ber  voice.     I  bad 

Imioi^  (tbe  stile  is  at  ibe  end  M 
I  he  way)  A»  aoon  ai^  they 
jl^lit,  i  saw  tbem  more  n|ain. 
aier  than  tbe  other.  They 
itile ;  ooe,  the  foremost,  be- 
«  atongf  you  bitch,  you  are 
■aiil  when  the  candk  Ite^^n 
m  them.  I  pntmyat^ir  a  little  far- 
inrnt- tide  tbe  (>o$ta,  that  they  mtg^ht 
lie  woman  8eeme«1  not  tirlUiig  to  go 
tbem,  by  her  cryinfr  and  sobbings, 
IfNike  a  wottl.  'Tbe  maa  behind 
t  f^f  a  laugh,  and  said,  Damu  the 
llruok  tbe  is !  When  they  caroe  up 
,  I  tie  latl  one  got  orer  5rst,  and  (he 
Ued  her  over  by  either  one  le^  or 
llie came  down  upright  on  the  other 
she  bung  back,  anil  fell  on  her 
\  the  sU*p^  and  cried  bitleriy.  f 
\  mmM  go  no  farther.  As  ( thottifht 
lee  me,  I  expected  she  would  have 
hii  to^  me ;  but  she  did  not  spe<ik  a 
before  plucked  her  up  by  the  hands 
h,  and  said}  Damn  you,  you  bitch, 
I  you  are  driitik ;  the  other  came 
|4tjde  uf  ber,  and  they  vrent  away 
fa^ughed,  and  said,  Damn  the 
^■ik  f  he  is  !  be  that  came  o?er 
^Bllloiig.  i  could  see  them  some 
^P^t  over  the  8ti1e«  One  of  them 
Mrband  all  the  time  I  saw  tbem. 
lat  you  heard,  did  you  think  that 
|a|g  iu  distress? — 1  did  ;  she  burst 
^■b  aobbtng,  going  off.  Tbey 
liP«if bt  presently. 
m  ber  face  f— I  can't  say  I  dl«l ;  I 
me  aide  of  ber  face. 
I  tbe  ilrcaaed  f -^-Hbe  had  something 
I  ^Mbes  on. 

>*9be  did  not  aeem  to  be 

I  ilood  above  ber. 

DM  great  coats  od  ?•»!  canl 

'fiadoroot* 

ve  you  to  believe  this  waa 
Ig  of  January  f— I  (bin k  it  was,  to 
^  my  knowledi^e.  I  wuh  not  well 
Lended  tome  nig:hts  for  rny  partner, 

three  weeks  after ;  and  from 

ne  to  recollect  it^  I  tboaght  it 

ginning  nf  January. 

"^"iifces  llolloway  ? — 1  do. 

or  ill  then  f— I  don't  know 
t  waa  well  or  not.      Sometimes  I 
Inly  lor  blm,  and  he  for  me. 
*.  Are  you  sure  it  was  the  begin- 
miary  f — BtaU,     I  really  believe  it 

H^Wb 
^^Birittaiii 
^B^cr,  ai 
■M  lHe3 


Wby  did  you  not  attempt  to 

noe? — Beali,  There  were 

,  and  we  are  fearful  in  our 

they  ask  us  any  questions, 

DMddSe  wi(b  such  ;  and  I  was  then 


^9m%,    If  Imo  did  you  give  bfomia- 


tioQ  of  what  YOU  beard  and  sawf—fieois.  f 
never  did  till  about  ati  weeka  alkr*  At  first,  1 
thought  it  might  have  been  one  of  the  maali 
wives,  or  sister,  or  some  drunken  girl. 

Mr,  Morton.  Is  it  a  common  thing  to  cat  a 
drunken  woman  along  with  two  men  ?— «B«si^ 
i  never  saw  one  so  particular  as  this. 

Cross-examined  by  Mr.  WilUs, 

When  was  you  first  taken  ill?-^lt  was  la 
the  be^ooiog  of  February.  1  was  much  trou' 
bled  with  tbe  rbeumutism. 

Do  you  always  attend  your  duty  ?***Soi&o* 
time's  1  do,  and  sometimes  1  do  not. 

How  far  is  your  turnpike  from  MoorBeldaf 
**-!(  is  about  three  miles. 

How  far  is  it  from  8tamford-Ht11  turnpike  to 
Enfield- Wash? — it  is  seven  miles- 
Is  it  possible  for  a  woman  to  walk  to,  or  bo 
carried  by  two  men  from  your  turnpike  to  £o- 
tield-Wash  in  a  quarter  of  an  bourf-^No,  Sir, 
it  is  not  pos^sibte. 

Was  she  walking  on  her  feet? — ^She  waf^ 
and  went  pretty  fa^t* 

Did  you  imagine  she  was  in  a  fit  of  oonvuU 
sions  ? — No,  Sir,  1  took  ber  to  be  in  liquor. 

Was  vou  near  enough  for  ber  to  tiave  seen 
you? — 1  was. 

What  did  tbe  men  Say?— One  said,  Corat 
along,  you  bitch,  you  are  drunk ;  and  tlie  other 
said.  How  drunk  tbe  bitch  is! 

What  was  the  colour  of  ber  gown  ?-^ft  WM 
a  lij^hlish  one,  it  looked  sOt 

Had  she  a  gown  oo  ?— 1  think  she  had,  1 
durst  to  say  she  had,  itr  else  I  should  bavw 
taken  more  notice  of  it. 

Did  she  keep  crying  all  the  time  ?~^be  did* 

Was  it  crying  or  screaming? — It  was  osljf 
sobbing  and  crying. 

Was  she  near  enough  that  tbe  might  bafl 
cried  out  to  you  for  help  ?— Yes,  (hat  she  was. 

Bow  came  you  not  to  tell  this  to  any  of 
your  neighbours  before?— I  did  not,  till  I  men* 
tinned  it  to  my  children  innocently,  not  tbi&k* 
tng  to  hear  any  thing  more  of  it. 

Was  it  a  dark  t>r  light  night  ?—*It  was  a  dark 
nigbt. 

Could  you  distinguish  whether  she  had  a  ha! 
or  bonnet  on  ? — I  canH  say  what^  she  bad  some* 
thing  ou  ber  head. 

Had  aba  a  cap  on  her  bead  ? — I  ean*t  say 
whether  she  had  or  not ;  I  believe  she  bad  ; 
she  appeared  to  be  a  young  person  with  ligbi* 
crdoumi  clothes  on. 

Had  abe  an  apron  onP— I  douH  rtmemhm 
whether  she  bad  or  not ;  I  ralber  believo  th« 
had. 

Don't  you  keep  Christmas  ?— Yea,  Sir, 

DonH  you  know  New-year'a  day?— Wi 
don^t  keep  that. 

Were  you  garnished  oat  on  this  day  wtth 
rosemary,  or  an  orange  ou  a  skewer  r^^^^W* 
don't  do  no  such  thing. 

Is  it  not  a  cuiitom  in  jraur  parish,  oo  Now- 
year^s  day>  to  wish  one  another  a  happy  New* 
year  P—Yes,  8ir»  it  it. 

Do  you  retnember   Ibb  otorning  yoii 


n 


627] 


27  GEORGE  11. 


{SB 


wis1ie-.l  any  of  your  npi^^hhrtiirs  such  ? — No,  I 
do  iiui:  iuK-e<l  1  dou't  rcmeiniMir  what  day  it 
was. 

DonU  ynii  rifmemKer  any  thins:  ^o  distin^uUh 
this  lo  be  Ne%v. gear's  day  f — \o.  I  do  not ;  I 
made  no  remark  at  all,  bein«^  very  ill  at  the 
time. 

By  Mr.  Morton. 

Do  you  rempoiber  at  what  lime  yon  liefifim 
to  attend  the  turnpike? — Mine  iiprran  on  the 
Sunday  in  the  evminir,  when  ue  come  iu  our 
tuma  ;  hut  we  ot'ien  come  out  of  turn. 

Was  there  any  moon?-  -I  am  sure  iherf  was 
DO  moon,  and  a  Very  still  night,  and  it  rained  a 
little. 

Mr.  Willet,  How  far  may  your  roai!  be  o?cr  ? 
'"Beals.  It  n  about  eit^ht  or  ten  yards  o?er.' 

Mr.  Morton.  Did  you  see  her  go  any  part 
of  the  way  without  a  man  holding  her  by  the 
hand  ? — Bealt.  No,  1  did  not. 

Mr.  Morton.  My  lord,  I  only  mention  this 
as  circumstantial :  grant  me  Uie  woman  was 
at  this  tuni|iike,  I'll  not  call  another  witness. 
H'e  are  now  going  to  call  a  person  that  saw  a 
person  in  the  situation  that  Canning  retaroed 
lu  ou  the  29th. 

Tkomat  Bi^net  sworn. 

Bennet,  .  1  lite  at  Enfield,  at  the  ten -mile 
•tune  :  I  was  coming  home  from  my  shop 
Dear  Mrs.  Wells's  house,  on  the  S9th  of  Janu- 
ary 1753  ;  between  her  house  and  the  ten-mile 
itone,  lielween  four  and  five  in  the  afternoon, 
there  was  a  miserable  poor  wretch  to  look  to, 
in  the  gravel- pit  gate -way,  a  five- acre  field 
near  the  ten- mile  stone,  betwixt  two  little 
bouses,  Richard  Wright's  and  widow  Jenge's. 

Mr.  Nares.  Describe  her  dress. — Bennet, 
She  had  neither  gown,  nor  stays,  nor  cap  nor 
hat  on,  only  a  ragged  dirty  thing,  a  half-hand- 
kerchief like,  and  a  bit  of  something  that 
reached  down  below  her  waist,  and  no  apron 
on,  and  her  hands  lay  before  her :  she  was 
Gomiiit;  in  at  that  tive-acre  field  gate- way. 

How  far  is  this  beyond  tlie«(en-niile  stone? 
—It  is  but  the  breadth  of  the  five-acre  field, 
and  twenty  or  thirty  pole  on  the  other  side,  and 
ab<mt  a  quarter  of  a  mile  on  this  side  Mrs. 
Wells's.  She  asked  me  the  wa^  to  London ; 
I  told  her ;  she  said  she  was  afiriuhte<l  by  the 
tanner's  dog.  1  bid  her  turn  on  the  right  hand, 
and  then  on  the  let),  and  that  would  bring  her 
to  liOndon.  She  was  going  to  turn  out  of  the 
great  road  into  the  foot  way. 

Whereabouts  is  the  taniicr^s  house  P— That 
is  a  little  farther  nearer  London. 

Which  way  did  she  come  ?— I  can't  fell 
which  way  she  came  ;  1  saw  her  llmt  coming 
in  there ;  but  she  went  for  London  :  if  nhe  had 
not  spoke  to  me,  she  would  have  gone  the 
wrong  way  for  Loudon. 

How  far  was  she  from  the  tanner's  Itnusrr 
•-She  was  about  balf  a  quarlMr  of  a  iitilv 
inNB  it. 

Uow  fliVM  «~- •«  ■•^-— «u«  «B«  iht  fPlk  iif 
IMW  Mfi.(whlfk 


Trial  tf  Elizabeth  Cannings 

was  the  day  after  I  met  her)  a  man  came  to  bb* 
about  taking  my  son  apprentice :  I  met  bin 
arc^rilinir  to  afipnintmcnt  tm  the  next  day 
wliich  nas  oil  a  U'eJije!Mlay,at  Waltham-Citisa 
in  order  to  put  my  son  out  apprentice,  but  W4 
did  not  agree  ;  and  the  day  after,  which  wai 
on  a  Thursday,  I  came  to  London  ;  andontbi 
Fridavt  whii  h  was  the  next  day,  I  met  Mrt 
KimpNt<^n  near  the  ten-  mile  stoue,  coming  bjr 
this  veiy  gale-way;  she  told  me  what  bad 
happened  at  Mrs.  VVVlU's  ;    then  I  snid,  1  will 


1)0  hanged  if  I  did  nui  meet  the  yoang 

near   this   phtce,    and    lold  her   the  way  ti 

London. 

Cross-examined  by  Mr.  Gatcoyne, 

Which  way  was  she  going?— Oat  of  Ik 
high  road  into  the  fields. 

Where  did  you  gather  np  the  word  "hlf* 
handkerchief,'  upon  your  oatb  P— I  acw 
gathered  it  up  at  all ;  it  is  what  I  said  al  fini, 
and  always  took  it  so. 

How  do ^00  know  she  had  no  stajaoo?— i 
saw  her  shift-sleeves,  and  she  had  no  gown  on. 

Which  way  was  she  coming  from  ? — I  can't 
tell  that ;  sh^  met  me  just  coming  in  at  tbe 
gate-wav. 

Which  is  nearest  London,  that  gate- way  or 
the  tanner's  house? — ^Tlie  tanner'a  boow is. 

Which  way  did  you  direct  her?— 1 
her  in  the  foot-way  by  the  road-side. 

Where  was  you  tbe  day  the  people 
"    ""  *     "      satHi 


taken  up? — ^Tbat  very  day  I  was  i 

at  Mr.  Fierce's,  to  put  my  son  apprentice  to  a 

butcher. 

David  Dyer  sworo. 

D.  Dyer.  I  live  at  Enfiekl-Wash,  aboota 
quarter  of  a  mile  on  this  side  mother  WeDi% 
right  against  the  ten -mile  atone.  I  was  at  my 
door  three  eveningrs  before  Mrs.  Wella  and  bar 
fauiily  were  taken  up ;  I  was  chopping  sooK 
rotten  bushes ;  about  tour  in  the  evening  I  «* 
a  poor  distressed  creature  come  by  me  out  af 
the  common  field,  firom  Mrs.  Wells'a-ward,  te 
London. 

Mr.  Nares.  Describe  bow  she  was  dresK^* 
'"D.Dyer.  Upon  my  word,  I  can't  give  aoy 
account  of  her  clothing;  she  had  a  thing  tin 
over  her  head  like  a  white  handkerchief,  «ilb 
her  hands  before  her ;  she  walked  very  weakly* 
She  was  a  shortish  sort  of  a  woman,  and  htdi 
hiioniiih  sort  of  a  thing  about  her,  it  didiot 
c«)me  very  low  about  her.  I  looked  at  her  faei 
as  she  came  by  me :  I  said,  Sweetheart,  d* 
you  want  a  husband  ?  She  did  not  speak 
to  me. 

How  soon  after  this  did  yon  see  her  agiioP 
— It  wiiH  a  considerable  time  after  that;  wbea 
I  Naw  her,  I  took  her  to  be  the  same ;  wbel  i 
saw  her,  I  iK'lievcd  her  to  be  the  same. 

Suiid  up,  Klizabeth  Canning.  Look  nM 
lier,  IS  Ihattlie  same  |)erson  ? — I  have  seen W 
brt^iixtihat  time  and  this;  this  is  theyoa^ 
wiiinau.  I  think,  that  iiasaed  hy  me  at  tbe  grtt" 
way  \  I  do  beheve  this  is  alie. 

Ilavo  you  seen  the  place  she  got  ool  tf|  it 
•In.  WtUa'tr-^l  have  maqy  a  time. 


fl»] 


Jbf  Wilful  and  Corrupt  Perjury • 


A.  Hi  1754. 


[530 


Might  ibe  come  that  way  from  her  house, 
vbcre^tfu  met  with  her? — Yes,  she  might, 
from  alber  the  back  or  fore  part  of  her  house, 
tlMtway. 

Croa-examlDed  by  Mr.  Dory. 

Was  she  a  likely  girl  ia  the  face?->Tbe  girl 
Vit  a  likely  girl  enough  to  look  at,  but  her 
dolbcs  were  not ;  she  looked  as  if  she  wanted 
some  victuals. 

YoQ  did  not  mistake  her  for  a  hlackmoor  ?-— 
Ko,  I  did  not 

IVai  she  not  black  in  the  face  i — No,  she 
wu  not. 

IVai  alie  fresh-coloured? —No,  I  did  not  see 
uy  red  in  her  face ;  she  looked  thin  and 
Weakly  ;  she  had  not  much  colour. 

Did  she  look  pale  in  the  face  P— She  looked 
vUlely. 
Then  she  was  not  red  ?-  No. 
Mer  yet  black  f-No. 
.  TiMBshs  was  white?— Yes. 

Waa  k  pretty  late  at  this  time  ?— It  was  not 
dsrk  ;  I  law  her  face  ?ery  plain. 

Did  jrsg  take  particular  notice  of  her  face  ?— 
I  did;  I  took  particular  notice  of  her,  1  looked 
alJbcrvery  wishfullv. 

If  she  bad  had  black  eyes,  should  you  have 
■sen  them  ?— Y'es,  1  should. 

if  she  bad  had  a  bruised  face,  should  you 
bare  seen  it? — 1  can't  ssy  whether  she  was  or 
vw  not  bruised. 

How  long  did  that  shortish  thing  come  down? 
—I  can*t  say. 

Did  she  walk  fast  or  slow  P—She  walked 
vcrvskiwly. 

.  Of  what  colour  were  her  clothes  ?-^I  can't 
■yastotbat 

What  was  the  colour  of  that  short  thing  you 
■sMioQ  ?— I  can't  sa^. 
.  What  the  colour  ot  her  petticoat  ?— I  can't 

Was  it  a  red  one  ? — Indeed,  I  can't  tell. 

Did  you  see  a  coloured  handkerchief,  tied 
•icr  the  white  handkerchief  on  her  head  ? — I 
iiaot. 

.  Ars  yoa  sore  the  prisoner  is  she  ? — I  am 
Mty  sure  ,  I  am  partly  positive  ;  1  will  not 
••  nmctual. 

You  say,  she  had  her  hands  before  her  ? — 
kebad. 

Had  she  a  pretty  hand  ?— 1  did  not  handle 
Jksn ;  they  were  as  other  |>eople'8  are. 
,  A  white  hand  ?— Yes. 

How  aoon  after  this  did  you  see  her  again? 
^I  can't  tell ;  it  was  al\er  I  heard  there  had 
kmpeo|de  taken  up  at  mother  Wells's,  for 
waftniny  such  a  girl ;  then  I  spoke  of  this. 

Ktcordtr.  How  do  you  liver— Dyer.  I  get 
■y  living  by  my  daily  labour. 

Martf  Cobb  sworn. 

If.  CM.  I  live  in  Silver- street,  at  Eilmon- 
fm ;  i  was  going  home  from  Tanners- End ;  I 
Via  10  Dneks-fiekls,  just  at  the  settini^-in  of 
diy-liglit  (aamuch  as  I  can  remember)  on  the 
:jmk  or  Jaouary.    Ob  a  Monday  night,  I  mat 

vol.  ux. 


a  person  ;  she  had  a  handkerchief  pinned  over 
her  head,  it  almost  hid  her  face ;  she  had  a 
black  petticoat,  and  an  old  bed-gown  on ;  it 
was  either  a  (|uiUed  thing,  or  it  was  a  printed 
or  flowered  thmg ;  the  flowers  seemed  to  bo 
faded.  8be  wrapped  her  arms  in  it.  The  flrst 
sight  I  bad  of  her,  she  was  getting  over  a  stile^ 
and  looked  at  me,  and  made  a  slip,  but  did  not 
fall :  she  came  up  directly  towards  me,  and 
looked  at  me,  and  I  at  her  :  I  was  afraid,  and 
moved  slowly.  I  turned  about,  as  she  came 
up  to  me,  and  looked  at  her :  1  thought  she 
would  have  asked  me  charity  ;  I  put  my  hand 
in  my  pocket,  and  had  no  half- pence.  I  had 
a  mind  to  have  spoke  to  her ;  but  having  no- 
thing to  give  her,  I  did  not.  I  perceived  her 
to  have  a  young  face.  She  apoeared  to  be  ia 
a' very  wretched,  miserable  condition,  as  ever  I 
saw  a  person  in  all  my  life.  She  walked  creep- 
ing along.  1  could  not  tell  what  to  make  of  it, 
whether  she  was  afraid  of  me,  or  u  hat. 

Mr.  Wiiiiamt,  You  say,  you  had  a  mind  to 
have  spoke  to  her ;  what  would  you  have  said  ? 
— M.  Cobb,  I  wanted  to  ask  her,  why  she 
walked  so  ? 

How  do  you  recollect  it  was  the  39tb  of  Ja- 
nuary ? — When  I  heard  the  affair,  it  came  into 
my  head,  that  this  was  the  person  that  came 
down  tojusticeTashmaker's;  then  1  heard  it 
was  on  a  Thursday  night  she  got  away,  and 
I  thought  from  that  it  was  impossible  ;  but 
when  it  came  to  be  published  in  the  papers,  I 
found  it  to  be  on  the  same  day  of  the  month, 
by  looking  back. 

What  size  did  she  appear  to  be? — Much 
about  a  head  shorter  than  myself. 

Have  you  ever  seen  her  since  ? — No,  I  have 
not. 

Look  at  Elizabeth  Canning  now,  there  she 
stands. — ^The  size  answers:  I  firmly  believe 
this  to  be  the  same  person,  by  the  tip  of  her 
nose ;  that  bears  some  resemblance  to  the  |ier- 
son  I  saw. 

Have  you  any  reason  to  believe  this  is  not 
she  ? — No,  I  have  not. 

Cross-examined  by  Mr.  Willea. 

How  many  fields  are  there,  called  Ducks- 
fields  ? — ^There  are  three  of  them. 

How  far  is  that  part  of  the  foot-way,  where 
you  met  this  strange  creature,  from  the  great 
road  ?— There  is  nothing  but  a  ditch  parts  it. 

What  time  does  the  day  shut  in  on  the  S9tli 
of  January  ?— I  can't  say  I  have  made  remarks 
on  that. 

Where  were  you  going  to  ? — To  my  own 
house. 

What  time  was  it  when  you  came  home  P— 
Then  the  children  had  lighted  a  candle. 

Where  had  you  been  ? — I  had  been  at  Tan- 
ner's-End  to  Mrs.  Carter's  house,  to  carry 
home  a  child's  vest  that  I  had  inade. 

What  time  did  you  'set  out  from  home?— 
About  three  in  the  evening. 

How  far  is  your  house  from  Mrs.  Carter's  ? 
—About  a  mile. 

How  long  did  you  stay  at  Mrs.  Carter's  ?— 
sM 


531] 


2T  GEORGK  II. 


JVm/  tif  BUtaibeth  Canmng, 


im 


There  wm  notwuly  »t  li'ime  there,  aod  f  left 
fwy  erriDif»  anU  fiktver  styfiped  or  atRyeil,  but 
came  awfty« 

Did  you  call  any  wlierc coming" back? — No. 
I  liad  aiiother  place  to  go  to,  and  t  wai  afraid 
of  beini;  loti  late ;  s^o  did  not  go,  but  returned 
htiuie.  1  met  Btvetal  people,  aod  stop[ied  a 
little  on  theretunj* 

How  long  in  all  nrifrHl  you  he  detained, 
ifler  you  went  frooi  Mis.  Carlijr**? — li  might 
lie  a  quarter  of  an  hour. 

Htiw  mnny  liines  iwfphl  you  alop? — ^1  ajn  in 
H  jiuUh:  ^ay  o1'  bu&intSK,  and  met  several ^eo^ 
pie  ? — J  Ibmk  1  flopped  tbrre  or  fbar  tim€9. 

Ff««n  the  lime  you  left  Mrs,  Carter's  house, 
to  the  time  vou  met  thi«  g:iH,  how  lontj  micjUi 
Uiat  be?— It  might  he  about  aquaiterof  an 
hour* 

Then  you  met  this  womaQ  at  three  qoarteri 
ifier  three  oVlock.^ — ^It  was  kter  than  that. 

Mow  Wmif  miijhl  you  lie  in  gohig  Trom  your 
k>wn  house  to  Mrs.  Carl^r'ij  ?— J  ilo  think,  by 
the  length  ortheway,  1  nti^^ht  beaboula  quar* 
Icr  of  ati  hour  in  going"* 

Were  you  stopped  in  going  T— I  don't  re- 
inember  f  was. 

Were  you  above  an  hour  from  your  own 
liouse,  befure  you  met  this  girl  ?*— Yes,  Sir,  to 
be  sure,  i  was  about  two  hours. 

Ilow  fUrfrom  your  o^vn  house  did  you  meet 
her  ? — It  was  about  a  quarter  of  a  mile  from  it. 
Tell  uie  bow  you  ticcount  for  ha?iug  spent 
Iwo  hours  in  only  q^nioqi^a  mife  and  three  quar- 
ters^—1  propo&«;d  to  he  at  home  in  two  houi^, 
tnd  1  exceedttii  it  about  a  quarter  of  an  hour*  1 
really  think  it  was  about  live  o'clock. 

W  here  is  your  housef— In  Church- street, 
Edmonton ;  but  I  met  her  betweeu  tlie  five  and 
aiX'tuJIe  liioaes  from  London,  The  8Jx-mde 
ft  lone  standi  tiear  the  Ntihcr  Dell ;  but  the 
Louse  1  lived  at  theO|  was  beyond  the  seven 
mile  stone. 

Was  her  faxje  brown  or  white  ?— I  observed 
the  tip  of  her  nose  ',  it  was  a  young  face  ;  she 
lookeil  very  dismal  and  black,  in  u  dirty  way. 

Dill  y<^u  flee  her  itonds  ? — I  did  not ;  they 
were  wrap(>ed  up. 

Did  no  words  pass  f — I  did  not  speak  a  word 
to  ber,  or  she  to  nie.  I  thought  she  wasted 
charily  by  her  deplorable  condition* 
What  are  you  f — I  am  a  widow. 
Any  fumily  ?*~The  eldkst  of  my  children  is 
at  home  with  me  ^  she  it  in  the  ISlh  yctir  of 
tier  age. 

When  did  vou  first  mention  meeting  fiuch  a 
creature? — 'th^i  wery  night  1  heard  of  the 
affair  of  Ehzabflh  Canning*s  coDfiijement  ; 
which  was  the  Friday  night  follow  in g. 

Who  told  yon  of  it  ?— I  can*i  tell  who ;  hut 
ieveral  of  my  neiuhhoirrs  did. 

Who  first  spoke  lo  you  to  come  here  to 
b«  au  evidence f —Justice  Toshmaker  did} 
that  was  atler  the  trial  of  Scjuires. 

How  loug  after  that?— I  can't tr;U;  il  was 
tliG  week  after  ;  but  what  day  of  the  week,  I 
Imiow  QoL 

Jn  whftt  DQaDACr  did  btf  apply  to  yokiN^H« 


came  to  my  house,  and  a^ked  me,  {f  T  met 
such  a  persoo  f — I  told  hitn,  as  1  bare  loldyog 
beibre, 

l>id  he  describe  any  person  lo  yovf— 9Iqi, 
none  at  aU,  any  more  than  ii  waa  lalkHl  on*  t 
told  him,  J  could  not  take  ao  oath  to  rwtu  H 
her. 

When  wer«  you  subpoenaed  P — Ou  Moiukj 
was  a  fortniirijt. 

Who  served  you  with  it?-^I  doti*t  know  the 
gentleman  ;  he  is  pretty  much  pitted  wtlb  tfat 
small'pox. 

Were  you  ever  examined  on  your  oath  W 
fore?--No,  1  nevei  waa. 

How  fong  have  vou  beep  in  towu?*'Eii| 
since  Monday  looroing. 

By  Mr.  Kara. 

Can  you  recollect  what  time  1 1  was  whtn  pt 
met  this  girl  P— 1  know  it  was  pretty  aar 
dusk. 

What  il  yoar  busina»P**-I  oitt  a  cotatai* 
maker. 

How  many  children  have  yon?*— I  havtM 
two  at  home  with  me ;  I  maintain  them  wilJi 
my  own  labour. 

Mr.  ^4irU'  My  U>rit  we  Uavf  clo«fdth« 
account  of  a  person's  being  seen  g^in|f  aid 
coming.  We^huU  nfxt  begin  our  dd«^€iu 
tbe  tiUU  of  Miry  £»quirf  s. 


I 


(Here  Mary  Squfres^  George  her  son,  |il 
Lucy  and  Mary  her  two  daughters/ nm 
brought  into  Court,  to  be  seen  by  the  WiV* 
ncs«c:»  as  they  were  called,) 

WiUiam  How^d  awoi«* 

Mr.  Nare4.  Do  you  know  Mr.  E(lir«r6AI« 
dridge  ? — HotDord^  I  do. 

Do  you  remember  any  thing  aboot  bbcOfli* 
ing  down  to  you  about  Elizabeth  Caoomiff-' 
The  two  Edward  Aldridge«  came  both  tof^etbiv 
twice  -  the  first  time  of  their  coming.  I  cii^ 
say  potiitively  to  the  day,  it  was  about  tliree«f 
four  days  nfter  the  peo|)4e  were  taken  upll 
Mrs.  >\ells's,  as  near  as  I  can  remember. 

What  are  these  two  Edward  Aldridg«f— 
One  of  them  ts  a  silversmith  in  Foster-laoet 
the  other  is  my  neighbour. 

A  Jit  ryma  n .  W  h  at  is  y otir  em  ploy  rocAt  f>^ 
EjiywariU  1  li^^e  upon  a  small  fortune,  and  a 
litfie  employment  under  the  govertiment, 

Mr.  Aoret*  What  account  did  they  coiDA 
upon? 

Howard,  Tliey  brought  rae  a  printed  Caat  d 
Elizabeth  Canning,  and  recommended  a  coo* 
trihution  ou  her  behalf. 

Whether  this  was  Edward  Aldridge  of  Pot* 
ter-lanef — Yes,  it  was;  and  the  other  witk 
him.  The  second  time  of  c(»ming  was  abuiii 
ftix  or  seven  days  after  the  6rst. 

Did  he  say,  he  wasdiasatisftied  with  the  sforv, 
or  liiat  he  believed  it  ? — There  was  out  a  wj\^^ 
labia  of  his  disbelief;  but  1  uodemood  hUD|  il 


>r  mifitt  and  C^rrvft  Pefptry. 


A.  D.  t75fc 


[53t 


M  rath  time  iifcoaiin^  ;  there 
Tfrnlul  ktiwrs  at  the  tK>itom  olu,  anri 
thill  Virtue  Hull  hail  ini^cacheii. 
re  Ulkintr  aUoiit  xhe  girrn  being  con 
\t4:  1  s:iid,  What  ilo  youlhink  of  it?  Hv 
k),  Tlitrr«  w>«  one  thintr,  1  Oiitik,  the  g:irt  i» 
IdMr  iOt  aod  that  i«  the  ite8cri|Uion  of  \Ue 

^^rder.  What  fii<l  he  soy  upon  th«  whole  ? 
jPtpri^.  He  rairK  helhuu^htthe  ffirl  hml 
m  wmd  WU  '^^^^  t**^  t^t'l  bfhere  she  uam  ihrre ; 
iM  wits  0(^1  quite  clear  in  her  deacripiion  of 

ir.  Nara.  Tii  both  the  times,  lUd  he  eir- 
teaay  4ittalist.il cri<)ri,  or  i'<iiihJ  ynii  iirwler- 
iJfcioi,  that  he  ihoi)i|;ht  the  |j:irl  nas  an  im- 
I^^^HiJiirarJ.  He  iaitl  uothiug  at  aU  in 
^Pklitto  to  the  girl. 

Cnwi*ejeaiiiiQed  by  Mr.  Willa. 
WW<4o  you  life?*^I  life  right  againii 


wbat  particular  words  the  silverHmilh 

of  to  recommend  a  conlrihution  to 

doii*t  remeiiiber  any  more  than  nbai 

I  tlic  only  means  ivas^  by  brin^^mtf  a 
iCiaef— ADtl  the  Uttte  conversatioti  ^e 
Ut. 

L  lime  you  taw  him,  did  he  tneotton 
?bef  of  her  story  ? — No^  Sir 
I  you  collect,  be  either  t>elleved  or  dia- 
I  her  story  ^--Every  thin^  that  passed 
Ltime  was  io  favour  of  the  girt 

uoi  so  the  secoad  ? — There  was 
^jectioa  made. 
hi  yoitr  houK  from  nother  \Velb*s  ? 
fty  »r  &i3i£ty  yard.4. 

kjlive  at  Enneld  during  the  month  of 
t  year!* — I  did  ;  and  bare  seen  all 
lily  pais  uul  repass  about  their  pri* 
k  iSaln. 

ai  iim«*  in  iUe  month  of  January  did  you 

Mtty  about  the  house? — 

'        xe  but  very  litiie  regard  of 

in  Mn.  VVelU's  bnu»e.     I  can't  re- 

Km  time  pociti? ely  ;  if  1  uiention  a  time, 

|gu«8s  at  it. 

r  at  Uii«  black  pitcher ;  do  you  koow  it  f 
)w  nothing  of  it.     f  cao*l  swear  piirti- 
iUrty  to  a  hruken  pitcher. 
Hare  yo'  '  :  lu  carry  such  a  black  jug 

llial  to  )  ' — 1  can^t  recoil*  cl  any 

tk  ttuog  ^  I  yite  ail  my  neighboun  privilege 
eome  m  wmIct, 

Hr,    iyar«i.      What    character   does   Mrs, 
cU«*a  bouM  baar  f—Hovard,   Am  bad  as  can 

MMordtr,     Do  you    rem«>m1)er   your   first 
Itaf  scciog  the  |;ypi«yP— Huvorc/.  1  oerer 
rd  to  lake  notice  uf  the m. 
Ui*  Ju»l.  Ciitt.     U»d  yiMi  ever  know  there 

^p«ie«  ihvrv,  brti^e  the  time  yoo  saw 
Uvm&rd,    I  nercr  did,    I  know  there 

I  be  bad  people. 


Mrs.  B(t^tkfii  sworn* 

Bf  rii.  Howard,  Th»  Uul  eyideute  is  my  bus* 
band.  I  koo\«  the  t^vo  Aldridgea;  oue  live*  ia 
|j<ui(loti,  the  other  by  us* 

Mr.  Narea,  When  did  you  see  thorn  bnlli 
at  your  house  ? — Mrs.  Howurd.  Tin*  firnt  tima 
thai  I  call  to  tniiid  was,  ]  believe*!  on  tite  Satur- 
day or  Mondny  alVer  Wells  and  the  people  «pre 
ta£eD  up,  1  rcmt^mber,  1  came  d^iwn  stairs^ 
and  tfiey  were  holh  in  the  pinion r.  The  in»on- 
try  Ahtrid^e  viid,  they  vverp  come  to  n«i ;  the 
London  Alctrittge  said,  it  waip  u  lib  a  desire  tttal 
1  and  my  husband  v%nuld  ctintrihnte.  1  asked 
him,  whether  or  no  he  wa*  of  opinion,  lh<*  i;irl 
bad  been  used  as  ^he  had  said?  Hv  nsked 
the  coMiilry  Aldridife,  wbHh^r  h#*  bad  »ny  of 
theCuflts?  and  tuiid^  hf?  would  h\\*  sv  nieooe; 
then  1  tiiigbl  judt^t*  hi'iter:  be  took  it  out  of 
his  pockety  aud  the  coautry  Aldiidge  gave  it 
to  me. 

Did  be  say  anv  tbing  to  you,  from  which 
you  c*>nUl  concbjtie,  tlmt  be  belief  ed  or  di>ibe* 
lieved  her  stor^^  ? — W  hen  he  ifj«ve  it  nic  in  my 
hiiml,  I  at'kcd  i^lr.  AUtridife,  what  he  tUoui^ht 
of  it  ?  The  answer  he  mad*;  was,  as  wure  um  be 
was  alive,  he  was  assured  the  t^irl  had  heeti 
ihinI  as  she  bad  said  in  the  Ca^e  ;nnd  that  Mr. 
8}iy  printed  them  gratis  for  the  ns^  of  the  girlf 
and  he  should  have  more  to  giv**  away* 

Which  Aldiidge  was  \\\%%t — This* was  the 
London  Aldridt^e. 

Was  Ibis  all  the  converfiatioa? — Hewaswitb 
me  atmiuil  Indf  an  hour  ;  and  he  rt^commended 
il  to  (lie  and  my  hoslrand  tosobscnbe,  and  de- 
sired mc  to  ifH  \i\y  friends  to  do  (he  same ;  I 
saiiJ,  my  acquaintance  were  cbiffly  in  LiMidfiQ. 

When  did  be  come  again  ? — Within  eight  or 
ten  days  alter  he  rnme  a^aiit,  and  bmught  tue 
another  printed  Case  ;  and  i here  wa**  wrote  at 
bottom,  thut  Virtue  UaLI  h;id  made  an  iofofina* 
lion.  He  said*  it  w«s  lo  nd»e  money  fi)r  the 
girl ;  anil  if  ne  did  not  anwii^t,  the  (^entlemeu 
in  London  would  not  think  we  wanted  to  ^et 
rid  of  the  bad  company  we  had  uImiuI  us,         ^ 

Wiiut  did  he  say  about  ihe  girl's  being  iu 
the  room  f—Upon  <ny  word,  1  don't  veroember 
be  mentioned  ttny  tliin|r  to  me  about  it  then, 
1  never  sent  for  him,  or  spoke  to  bim,  till  be 
came  to  me  in  my  own  parlour* 

Look  at  the  woman  (hfie  (meaning  Mary 
SquireM) ;  do  yon  know  her  P — Thiit  is  the  wok 
man,  I  ibink/l  bate  aetn  pass  »nd  repass;  bk4t 
uever  woi  nigh  bir  to  spewk  lo  her. 

When  wuvthe  iirst  time  you  saw  her,  caD 
you  recollect?— The  first  time,  to  be  positive, 
was  the  Sunday  was  se'nmi^bt  before  she  waa 
taken  up,  I  saw  her.  the  son,  and  two 
daughters,  at  Mrs.  Wtllsa  door:  I  do  think 
they  are  the  same.  It  ia  a  great  while  irtoce; 
there  may  be  an  alteration ;  her  daughter 
Mary  vis^\\  to  ci»me  lo  our  pump  for  water: 
the  fir»t  time  I  took  n^Hice  of  ibem,  my  %rr- 
vanU  UM  me  they  were  gypsies ;  tb«u  1  bid 
tbem  not  to  unbolt  the  dour, 

B,€cord€r.  The  Sunday  waa  se'nnight  before 
they  wore  takea  up  waa  the  flat  oi  Januacy^ 


535] 


«7  GEORGE  IT, 


Trini  qfEUzaheth  Cannings 


My.  Justice  Clive,  How  Jo  you  know  it  wai 

tlie  Sunday  was  se'nniicKi  lieforef 

Mrs.  Hiiwtird.  Ill  tell  yom-  lordihip  why  [ 
know  it  was  llmt  day  ;  because  on  the  Friday 
my  servant  told  me  she  wa<*  there ;  and  sUe 
ealleil  me  out,  when  the  girl  was  takini^  aomt; 
liuen  oflT  llie  het!g:e8  at  Wd!a*s ;  she  waa  in  a 
browti  siiifT  gttwo  and  a  speckled  hat ;  aod 
when  she  came  up  to  the  frame  of  my  pump 
on  the  Saturday,  she  turned  ahuut  aud  made 
me  a  curtsey,  and  1  bowed  to  her  as  she  went 
out  at  the  gate:  this  was  the  Saturday  before 
tlie  Sunday  of  my  first  seeing  the  old  woman, 
and  son,  and  two  dauj^htera. 

Recorder.  What  time  of  the  Sunday  was  it 
you  saw  thero  ? — Mrs.  Hoaard.  It  was  in  the 
afternoon  t  I  was  tnjd  they  were  her  son  and 
two  daughters,  and  ]  looked  wishfully  at  them. 

By  Mr.  Ntiret* 

Did  yon  see  the  oM  woman  after  this  ? — I 
^id  ;  I  saw  her  put  into  the  cart  after  she  was 
taken  up. 

When  you  saw  her  put  into  the  cart,  so  soon 
after  you  saw  them  at  the  ttoor,  did  ynn  tw- 
liefe  It  to  he  the  smne  [person  you  saw  at  the 
door  ?— Ves,  I  did  belitve  it  then* 

You  say,  you  were  t'dd  there  were  jryp^ies 
there  before;  did  ynu  e^er  see  gyp«JL's  ll*ere 
before  that  lime?—  No,  not  to  my  knowled|>^e* 
That  wes  the  reason  I  ci^utioned  my  servants 
to  haie  niilhing  to  say  lo  ihem;  hut  let  them 
come  as  the  rest  of  the  neiglibi>ur8  for  water ; 
for  wc  refuse  none,  unless  ihey  gire  offetire : 
But  I  cautioned  my  servants  not  to  let  her  into 
the  house, 

Cross-cxamioed  by  Mr»  Willa. 

How  far  might  they  be  off  at  the  lime  you 
saw  them  Ihsi?^ — As  ut|fli  a*>  I  can  guess,  not 
aliove  fit^y  or  sixty  yards:  1  wait  within  twy 
own  gate,  which  faces  it  exactly, 

Areyoii  shon-siijhled  ? — Yes,  I  am. 

When  did  you  first  ?v«e  one  of  ttie  gypsey'a 
girls  come  fur  water  to  yourpuinp? — It  was 
IhatSaitirday  morning. 

Which  daughter  "was  it  ? — 1  do  think  it  was 
Mary. 

Which  pan s^i -church  did  yon  go  to  on  the 
Sunday  raornini;  ?-  We  go  to  Enfield  church. 

HawE  you  seiMce  all  days  of  the  week?— I 
hcliefe  we  have;  hut  I  am  not  able  to  walk 
•0  far. 

Do  yon  keep  king  Charles*s  martyrdom  ? — 
No;  but  I  keep  my  son's  birth  day;  as  the 
•tile  is  altered,  that  comes  to  be  the  39th  of  Ja- 
nuary. 

Was  ihat  the  Monday  immediately  afler 
the  Sunday  you  saw  her,'  or  not  ?— No,  it  was 
the  ^lunday  wasie'nnigbt. 

What  did  the  daughter  Jetch  the  water  in  ?-- - 
1  hnve  seen  her  several  times  at  the  pump  in 
that  time  ;  and  1  have  seen  tbeui  come  with  a 
pail  and  a  large  pitcher:  one  time  in  particular 
she  was  met  by  another,  and  ibey  took  it  and 
•arried  it  for  her :  one  morning  1  saw  her  with 
•  very  litila  black  pitcher. 


Can  you  speak  of  its  beiog  broke  ahooi  sJie 
neck  ? — 1  doo*t  know. 

^re  you  a  church- woman  or  «  dtSMUtarf** 
I  am  a  cburcb*wotnaD. 

By  Mr.  Naret* 

How  near  were  you  lo  the  girl  when  you  ob- 
served herf-^-As  near  nh  1  am  to  that  |;eDt)«< 
man  (pointing  to  a  [tersou  about  three  ottim 
yards  olfj. 

Then  >  ou  were  near  enough  to  disttagtiiil 
the  girl?— I  was.  She  ma<le  me  a  nirtsf^, 
and  looked  me  full  in  the  face»  atid  1  her:  I 
think  she  looked  fatter  in  the  face  than  i^ 
does  now. 

Did  you  think  it  was  a  gypsey'e  ItoeM 
thought  as  other  people  did. 

Were  you  near  enough  to  know  Mirt 
St[uires  as  she  passed  and  re|ias»ed.^ — Ves,i 
was.  She  was  m  the  foot- way,  and  I  wiiikit 
my  gate. 

From  what  you  observed  of  her  then,  doypt 
think  her  lo  be  the  same  person  .^--l  do^  l»l 
can't  be  pofiilive. 

By  Mr.  Rfcorder, 

Are  you  positive?- -No,  t  b<u  not:  I  never 
conversetl  with  her,  or  she  with  me. 

Was  your  husband  wilh  you  I  ha  I  Snndtj.* 
^-No,  he  was  not ;  tie  was  gone  to  churrli^ 

Did   you    tell    bim    when    he  came  ft 
church?-*!  thiok  I  did. 

Can  you  be  positive  to  your  sight  forty  or 
fi fly  yards  otr?<*i  was  more  positive  whefl  I 
saw  her  pass  and  repass,  thau  I  was  oti  tkit 
Sunday. 

Can  yon  he  psrticnlar  to  the  days  you  «t 
her  pass  and  repasi?*-No ;  1  cau*t,  tny  lord.  ^ 

Wiiiiftm  Headland  sworn. 

Mr,  Nurcs.  Where  did  you  live  last  Cbriil- 
mas  was  twelve- month? — W.  Headlands  \ 
can't  really  say  where  I  was  itieu  ;  I  believe  t 
was  at  Enlield,  because  my  father  lives  iherr. 

H«iw  old  are  you  ?—  I  was  twenty  years  e( 
age  the  30th  of  last  month. 

Do  you  remember  being  at  vour  fatber^ 
about  a  year  and  a  half  ago?— f  know  I  ins 
there  when  I  came  out  of  place :  I  had  aflt 
been  in  place  thene  two  yean*  lilt  U<»  rurtn- 
mas:  I  did  five  at  Henham  HliII,  ^^ 
Headland,  my  cousin ;  that  is  38  n  .: 
London. 

.During  the  time  you  was  there,  was  then 
any  talk  about  Canning  and  the  gypaejf— 
Yes  ;  that  was  in  last  January  was  twelrt' 
month  :  I  remember  Welts  being  taken  up ;  1 
was  at  home  then, 

How  far  is  your  father's  from  Mrs.  Wffls*i 
house  ?^-There  is  only  a  lane  end  two  ficldl 
part  us. 

Do  you  know  the  wiudow  where  it 
posed  the  girl  got  out  at  ?    W  hat  does  that 
dovv  iroot?^ — It  is  by  the  comer  of  the  lior; 
yon  may  see  into  the  road. 

Where  dws  the  other  side  look  to? — Tbl»t 
is  only  a  little  window  which  looka  ial 
ield. 


\  ia  fn|»4 
bat  wiw^ 


W] 


Jhf  WH/td  and  Corrupt  Perjury. 


A.  D.  1754. 


Look  about  llie  coiirt^  and  see  if  yon  fee 
her. — That  is  the  girl  (poioting'  to  Mary 
Squires)  ;  I  am  fiire  it  is  one.  If  you  were  in 
your  brown  cuniblet  trown,  t  tboiitd  know  you 
better  ;  J  then  could  swear  to  it. 

Do  you  believe  tbit  ia  &be  ? — I  do  really  be- 
lieve it  is, 

Whut  did  yoct  carry  that  water  for? — It  wfti 
two  paili  of  wash  for  a  sow  ibat  was  big  wiUa 
(Yiuii. 

VVUeredid  you  carry  it  from? — From  my 
mother's. 

How  do  you  Icdow  it  to  be  the  13tb  ? — Be* 
cause  it  is  Ci>j»insf  market  day. 

What  day  of  the  week  is  that  on  ? — It  is  on 
a  Friday. 

Did  you  aee  ber  anj  time  after  thisP — ^Yei ; 
I  was  in  madam  Johnson's  walk,  and  saw  ber 
coining  down  a  field,  I  spoke  to  her,  and  said. 
You  are  f^aoginfj:  home,  it  is  ?ery  cold.  8he 
said,  So  it  is. 

Did  you  see  her  after  that? — Yes;  I  saw 
lier  getting  into  the  cart,  when  she  was  lakea 
«p. 

Was  she  the  first  or  lait  that  got  into  the 
cart  ?-^Sbe  was  the  first,  1  believe  j  but  I  am 
not  sure. 

Were  you  in  court  when  Mrs.  Howard  waa 
examined  ? — No,  Sir. 

From  what  you  oWerved  of  ber  beforp,  and 
from' what  you  observed  since,  are  you  sur# 
this  is  the  same  person  ? — I  am  sure  it  is  the 
tmue. 

Cross-examined  by  Blr.  WlUn. 

What  business  is  your  father  ?— He  is  a  gir- 
deoer. 

Where  had  you  lived  before  you  came  home 
to  your  father,  l>ef(»re  January  was  a  twelve- 
month ?^ — 1  worked  at  several  farm  houses. 

By  Mr*  Justice  C/ire. 

Had  you  been  a  hired  servant,  or  woHced 
by  the  day  ?— I  worked  with  one  man  a  matter 
01  two  years. 

Before  you  came  home  to  your  father^  who 
did  you  work  with  then  i' — I  canH  ti^ll  indeed  ; 
I  iin^ht  be  outoJ  place,  for  whai  I  kftow. 

What  time  of  the  year  is  Cbiisiruas  in? 
What  monlh  is  it  in? — 1  do  not  know  what 
month  in  pariicular, 

Mr.  Just.  Clint*  There  are  twelve  monthi ; 
pick  out  which  Christmas  is  in, —  HcadUtnd, 
Indeed  I  cannot  ri^litly  say  what  month  it  is  iik 

By  Mr.  IViUeM, 

How  many  days  are  there  in  m.  weekf 
There  are  seieo,  if  you  put  Sunday  in. 

What,  is  not  Sunday  uue  of  your  days  ?— 
Yes ;  but  some  people  make  but  six  days  in 
the  week. 

Who  are  ihey  ? — The  Jews  da  not. 

By  51  r.  Nareu 

You  s^y  you  worked    with   one   man  two 

Seats  hehire  ytiu  came  home  to  your  father; 
ow  long  did  you  live  in  one  place  together  f»* 


Did  you  find  any  thing,  and  when,  near  that 
pkce?— One  d^iy  I  was  going  to  the  shop,  and 
xhfrt  tiere  a  parcel  of  people  come  about 
Wells'*  hoQse  :  I  went  there  and  found  a  piece 
af  lead,  ju^t  at  the  corner  of  the  window  that 
johulo  the  hotise;  it  looked  as  if  it  came  out 
Dfioine  ^Mndow. 

How  near  to  the  house  did  you  take  it  up  ? 
•-Wflliin  a  yard,  or  thereahouu,  under  tne 
wiudnif  that  fronts  the  road  :  I  doubled  it  up 
» •  '  '^tind  it,  becaujie  1  thought  I  would 

I  .-i  .o.iJc  you  take  such  notice  of  it?— 
Beesitse  it  was  blmnly  ;  and  I  heard  Bet  Can- 
linifbad  lorn  her  ear. 

K<kr  God*9  sake  tell  me  the  true  reason,  upon 
«itb,  «hv  you  took  notice  of  that  lead? — Be- 
Qdw  I  (leard  the  young  woman  had  torn  ber 
■wi^-airTtt  the-  casement,  or  sonielhing* 

f\y  when  you  picVed  it  up?— It 
"^  V  4  I  believe  it  was  blood,     1  ear- 

ned it  Iw/vntf,  and  gave  it  to  my  mother. 

D«d  y«i  lell  your  mother  why  you  brought 

By  Mr.  Becorder. 

Whm  did  you  bear  Elizabeth  Canning  had 
iwifcwf  tmr? — I  do  not  know. 

Vlfhatdsy  did  you  pick  up  this  lead?— I 
euttotltll. 

By  Mr.  Naret* 

Wbeiber  ever  you  saw  Mary  Squires  the 
fyi»^y?— Ve«,Sir. 

^    Mboiit  the  court — That  is  the  woman 
^'  to  her)  ;  I  know  her  iVom  a  thousaml, 
Uulyou  see  ihat^^ypsey  woman  at  any  time 
^mw  you  took  up  ihe  lead? — Yes,  Sir. 

V.  '   tiefore? — Indeed   J  cannot  say 

^  ^e  ;    but  I  saw  her  on  the  9th  of 

iAty ,    i  i^iiow. 

by  do  you  think  it  was  the  9lh  of  Ja- 
*  "'    »*-f*iu»e  it  was  ou  a  Tuesday,  Wal- 
(i  day. 

h-.-.      L.  tfer  seen  her  before?— That  was 
day. 
her*  did  you  see  her?— I  saw  her  under 
Lo«)mworth  Dane's  back  wall,  telling  a 
)^  man  bin  t'nrtune. 

here  dof^i  Ml.  Dane  live?— At  the  sign  of 
^BeU,  at  Eofifid  highway,    A  young  man 
frooi  acuachtuan:    fie  wasin  a  silver- 
hat  *  I  atdod  looking  at  ber ;  she  said,  Go 
i>r  master  ahould  want  you. 
.it»!*i  H  tree,  and  then  went  a 
iRruicrj  and  could  not  Ilea r  what  ibev 

How  eonk)  you  tell  she  was  telling  his  (br- 
.^?«^licoaiiae  1  saw  her  lay  hold  of  his 


I 'Si  I 


ymt  sure  it  was  so  early  in  January  as 
I  "I  mn. 

h«r  any  day  nftrr  ?— Yes,  I  «taw 
!j,  m  Mrs,  \('rl|B*«  house:   I  went 
''»f  water;    there  were 
-trrs  ;  one  of  them  had 


w]: 


S7  GEORGE  II. 


1  baT«lirad  Mf  a  year,  tod  three  qntrten  of  a 
jBKt  together. 

Tell  wbem  yon  liied  with  three  quarters  of 
a  jear.— 1  oaaaot  righily  telL 

Can  you  tell  anv  onaster  voa  Iife4  with  two 
yearaf— I  worked  for  ooe  Air.  Long  for  half  a 
year  together;  he li? es at Freezy-Water.  I 
,  worked  for  fiirmer  Alieo,  at  fiofiefd  highway, 
right  a^oattheBlaek  Hone;  I  ha?e  worked 
many  times  for  him. 

Mr.  Juit  CUm.  How  long  together f^ 
Beadiand.  It  might  be  a  quarter  of  a  year  to- 
gether, or  lew. 

By  Mr.  Nara. 

Whom  did  yov  work  with  firtt  P— Mr.  Alfen. 

Did  yott  ever  live  ae  a  hired  tervaat  w  a  fa- 
mily wKb  aay body?— Tea;  I  lived  in  Fea- 
theratone-elreet  at  'squire  Feaet's  brew-house, 
with  one  Mr.  King,  ten  or  eleven  weeks. 

Did  this  master  you  lived  with  keep  Christ* 
masP<— i  redMMi  he  does. 

Cannot  yon  tell  what  month  Christmas  is  in  ? 
—I  can  hardly  tell. 

TeU  as  well  as  you  caa.-^  cannot  lelL 

Js  it  in  winter  or  summer  ? — It  is  in  winter. 

Is  it  before  or  afier  January  ? —  I  cannot  teU. 

A  Juryman,  Can  you  read  and  write  P-— 
Headland.    I  can  read  and  write  too  a  little. 

Mr.  Just.  Clive,  Where  did  yon  find  this 
\mi^-^Ueadland.  I  found  it  at  the  end  of  the 
wall,  by  the  window  frontiag  the  read. 

Mr.  Just.  Clive.  What  sort  of  a  bit  of  lead 
was  it? — Headland.  It  was  a  pieee  of  window 
lead. 

Idfrd  Mayor.  EzplaiB  what  jron  mean  by 
window  lead. — Headland,  It  was  snch  as  they 
pat  the  glass  into. 

Mr.  Just.  C/tee.  Was  it  one  single  pieee  ?— 
Headland.  No;  there  were  two  or  three  pieces 
of  it,  all  juined  together ;  so  I  bent  it  together, 
and  put  it  into  my  pocket,  and  gave  it  my 
mother. 

Mr.  Just.  Clive.  What  did  you  &ay  to  her  at 
the  time  you  gave  it  her  ? — Headland.  I  bid 
her  take  it,  because,  they  say.  Bet  Canning 
had  tore  her  ear  at  the  window ;  but  it  is  lost 
since. 

Mr.  WiUe$.  How  long  before  Scjuires  was 
taken  up,  and  put  into  the  cart,  was  it  that  you 
first  saw  her?— Headland.  She  was  taken  up 
en  a  Thuraday,  and  if  she  bad  stayed  till  Fri- 
day, it  would  have  been  three  weeks. 

A  Juryman  Whether  you  shewed  this  piece 
of  lead  to  any  body  aOer  you  picked  it  up,  be- 
sides your  mother?— J9eac{/on(/.  No,  I  shewed 
it  to  nobody. 

Elizabeth  Headland  sworn. 

Mr.  Narii.  Did  your  son  at  any  time  bring 
any  thing  home  to  you,  which*  he  said  be 
found  ?— jE.  Headland.  Yes,  Sir,  it  was  a  piece 
of  window  lead ;  there  was  a  piece  of  solder  on 
it.  It  was  a  small  time  after  the  people  were 
taken  ap. 

What  aoconnt  did  he  give  yon  of  it?-*l 
Mbsdaftili  themwasjMMbtoodiipoBitt  '^- 


ifklqfEtnabM  Canmng, 

said,  ha  picked  it  up  a  little  way  off  froi 
Wells's  wuMiow,  where  it  was  snppoi 
girl  got  out  at ;  I  wrapped  it  up  in  a  | 
paper,  and  laid  it  on  a  shelf. 

How  came  it  not  to  he  here  ? — I  hn 
to  London  with  me  at  Michaelmas  tin 
carried  it  down  again  before  Christmaa  ] 
it  in  a  table>drawer ;  and  when  I  went 
for  it  last  Friday  was  a  week,  I  could  i 
it,  but  I  found  the  niece  of  paper  it  was 
ed  m.    This  is  really  truth. 

Cross-examined  by  Mr.  Willet. 

Was  it  two  or  three  days  after  thi 
taken  up? — Indeed  I  cannot  tell. 

Was  It  the  day  they  were  taken  up 
it  was  not;  it  was  some  time  after. 

Was  the  blood  wet  or  dry  upon  the  1 
It  was  dry. 

This  son  of  your's,  how  haa  ha  sp 
time,  where  has  he  lived?  He  saya  r 
years  of  age.— He  is.  He  has  lived  la 
some  part  of  his  time ;  and  sometimes 
lived  at  home ;  he  has  gone  to  drive  | 
and  to  day-labouring  work. 

Has  he  been  a  dutiful  sort  of  a  hoT, 
that  you  can  say  much  in  bis  favour  r— 
no  occasion  to  give  the  boy  an  ill  wonL 

By  Mr.  Just.  Clive. 

When  did  he  come  home  from  sen 
He  has  not  been  but  these  three  years,  ti 
iir  this  half  year ;  he  has  been  at  home 
and  half,  I  believe ;  but  used  to  be  out 
■Baking  and  harvest- work. 

How  k>ng  had  he  lived  at  home  wit 
before  the  people  were  taken  up  at  M 
—He  had  been  at  home  all  the  winte 
and  I  believe  from  the  A'lichaelmas  befoi 

Where  was  the  last  hired  service  he 
before  January  was  twelve- month .' — Uj 
word,  I  can't  tell ;  he  was  two  years  a| 
a  gentleman  at  Hackney  ;  but  he  did  i 
there  above  two  mouths. 

Samuel  Story  sworn. 

Mr.  Nares,  Are  you  of  any  business?— 
I  live  upon  my  fortune,  at  Waltham- 
in  Essex. 

Look  at  that  old  woman  (meaning 
Squires) :  Did  you  ever  see  her  befo 
have  divers  times :  that  is  the  gypsey. 
not  know  her  by  name. 

Tell  us,  when  you  think  you  first  sai 
— I  have  seen  her  several  times  at  a  hi 
White-Webbs-lane,  that  is  since  pulle<] 
going  to  the  Chace ;  that  used  to  be  n 
stent  road  to  ride  out,  two  or  three  ti 
week;  Then  I  lived  in  Turkey-street,  i 
Wash.  I  have  been  moved  from  theno 
a  year  and  half.  I  have  seen  her  both 
and  since  I  removed.  The  last  time  I  s 
was  on  the  2:ird  of  December,  176S, 
the  time  I  saw  her  ui  Newgate. 

Where  did  you  see  her  i* — Sha  was  st 
within  the  door  of  Mrs.  Wells's  house. 

What  reason  have  you  to  thiokili 

J 


Hi] 


fir  Wilftd  and  €<irrtipi  Perjury, 


A.  D.  I78i. 


[54f 


lll^dk^?«— It  trai  the  HMurtlay  bcfare  Christ- 

ntiftdiv,  B  rery  iiue  frosty  m(>rii in £^ ;  which 

wivfCti  me  to  uke  A  w«lk  tosev  Mr.  Hownnl, 

«!in  liii'f  iltrrctly  07«f-agftinst  Mm*  WclU^s. 

lite  horse  pud,  because  it  was  heM*;r 

mil  tivy  feel  mre  a  iitUe  tenfler.    Wheu 

jter-fi|»aiDftt  MfR,  Wells's  house,  I  saw 

^^vy  at  tlie  tJo^ir.     Curiosity  led  me  a 

Ijiik  wiit  or  the  path,  to  see  if  h  wa^^  the  same 

fftpipy  I   hod  st?eo  tn  the  house  m  White- 

Wtl^kiie, 

Did  y oa  ^  close  to  her  f — ^Not  rery  close ; 
l«Ml^,  prrliA|t9,  wtlhin  ten  yardii  of  her. 
Wrre  y«a«o  nettr  her,  lui  to  fiirm  any  ji»i\^' 
■tnt  whether  it   wa*i   the  sarae   pereon? — 1 
•lit  I  fras  certain  it  was  ihe^ame  persoiu 

iMd  yofi  •*€  h«?r  alter  thatf — Noj  I  nerer 
MB  li«r  «5erw&rdB«  lit)  I  saw  her  in  Newgate, 
iinMtlM  Hlh  Of  I'ithor  March* 

SLtttrdtr*  Upon  the  oRth  you  ha?e  taken » is 
MM9tlNa«ifte  person i* — Sforj,  Upon  roy  oath, 
It  )i»  WWn  I  came  to  see  her  in  Newgale,  it 
«i»c>n  a  IViday.  I  was  denied  admittance 
liw^  M 1  vent  to  alderman  Glynn,  and  hegged 
Ike fifMrof  an  order;  and  then  I  saw  her. 
Wf.Nwrm,  Who  denied  you f—5fory.  The 

Were  voo  then  satbfied  It  was  the  same  wo- 
Mlf— *I  WB«  then,  and  am  now,  well  satis- 
M,  lliil  tim  is  the  tame  woman* 

1Ui«  you  any  other  reason,  so  as  to  be  oer- 
Intt  vat  the  J3rd  of  December  you  saw  her? 
^Ikivr.  1  obxen^ed  it  was  a  hard  frost  in  the 
matrtmiir '^  atnl  ilip  weullu'r  alttfred  aj)0ut  noon 
!. y  which  it  was  very  wet,  and 
i  sijcr  drove  on  my  n^ht  side^ 
goin^  home }  and  I  being  fiiibject  to 
nti»m|  was  taken  with  it ;  and  the 
fire  seized  roe  about  the  Monday 
M>l1owin^  ;  then  I  sent  for  an  apo- 
:r},  iiid  he  attended  me  afterwards.  8o  I 
•fty  p«»iilii'e  aft  to  the  day,  for  1  never  went 
iflfr  that  Saturday,  when  I  cime  bo  toe, 
•Mr  two  months  after, 

Crosa-exanirDed  by  Mr.  WdUs. 

IKIy4fl  6nd  Mr.  Howard  at  home? — I  did. 
Ihw  Imijj  did  you  stay  there? — I  belief  e  1 

liAay  oest  patt  of  an  hour  there. 
•bile  ycpy  were  there,  did  you  hear  there 
•By  ^tp*its  at   that  time  there? — No: 
•dooUji'  in, lis  I  reinentber* 

ii  it  iii  :  1?  thercp  or  return,  that 

'  Jtotaw  Im?t? — it  Wkis  in  my  goin^thcre, 

Ifit  %h«  itiindiug  wit)i<iut  the  door,  or  with- 
hF*^ht  w6i  juit  within,  at  the  threshold  of 
.Htfikhiyr, 

^'  '  '^    nonlinfjor  slde-waysP — The 

'  Mr.  Iloward^s.     I  went  a 

re  lAHorr  <t«i  of  tnv  way,  to  ace  whether  it 

I  tkc  Mmc^paey  that  1  bad  teeo  io  White- 

Uvit  bfig  was  it  More  this,  that  you  bad 

» li«r  kefvre  7*^1  vaw  ber  when  I  lived  in 

igl,  and  I  mof  od  from  thence  on  the 

kefortr.    1  had  leen  ber  at  tiiDra 


Can  Tou  name  any  pailicalar  time  before 
this  P— i  remember  I  bad  aeen  her  in  the  spring 
of  the  year* 

JJid  'you  crer  cottrerse  with  her  ? — No,  I 
never  did,  Sir* 

Were  yoti  ever  in  the  tame  room  with  her  f 
—No. 

At  this  time  you  went  a  little  oat  of  yoitr 
way,  did  you  say  any  ttiiug  to  her,  or  she  to 
you? — 1  did  not. 

What  did  she  dppearto  be  doing? — Notbiog^ 
at  all. 

Had  she  a  pipe  in  her  moutb  ?•— No,  she  had 
not*  8he  had  a  dirty  dotit  or  handUercbief 
over  her  head. 

Who  used  to  be  with  her  in  White- Webbs- 
lane  I — There  used  to  be  two  younger  womeii 
with  her  at  tiinea,  which,  1  have  heard  since, 
are  her  daug;bters. 

Was  there  a  man? — Yea,  there  was. 

At  this  time,  at  Wells's,  fhd  you  see  any  of 
the^e  young  people  with  her  ?— I  did  aee  • 
young  girl  with  her, 

L(K>k  at  these  two  young  people,  and  ae« 
whether  either  of  these  are  them*— -1  cannot 
swear  to  their  faces.  The  girFs  back  was  to* 
war<1«  me  then,  talking  to  the  old  woman  ;  shs 
stood  without  the  bouse.  1  cannot  swear  IQ 
the  f(W\, 

When  was  it  you  first  recollected  these  cir<^ 
cumstances  of  having  seen  her  there  ?--- In  m^ 
iUnens  the  apothecary  told  me  what  had  hap- 
pened at  Mrs;.  Wells's  hotise. 

Can  you  tell  what  day  it  was?-— That  1  can* 
not,  to  two  or  three  days ;  it  was  aAer  they 
were  taken  up. 

Mr.  Narei.  It  comes  out  now,  which  f  diil 
not  know  before,  that  you  had  seen  this  womaa 
two  or  three  years  before  ihM?- --Story.  I  had, 
and  took  notice  of  them  as  a  parcel  of  c^ypsiei. 
They  usad  to  have  two  asses  and  a  little  horse  ; 
I  have  seen  the  horse  grazing  in  ^Vhite-Webba*  i 
lane,  as  1  have  rode  through  there ;  and  the 
two  asses,  I  have  met  with  them  oo  the  road, 
and  the  two  young  women  and  a  man ;  but  < 
Uieir  dress  is  so  altorcd  now,  that  I  could  not 
know  them.  They  used  to  have  a  perfect 
gy  psey^ft  dress,  with  blankets  over  their  shoul  *■ 
ikrs,  and  handkerchiefs  over  their  heads  (you 
might  see  their  black  locks  through  them),  fol« 
lowing  the  two  asses.  The  last  time  I  met 
them,  I  believe,  might  be  at  the  beginning  of  J 
December,  just  against  Durant*s  house. 

Mr*  Narct,  I  believe,  yon  were  rather  too  ill 
to  go  oat^  to  be  a  witness  when  the  trial  of 
8<]Uire5  came  on  1* — Story*  1  was;  1  thought  I 
should  have  dii^dt 

Recorder.  Were  you  ever  of  any  business  f 
-— 5^ory.  1  was  a  finisher  of  clock  dial- plates. 

lUcorder.  Were  you  acijuainted  with  Mr* 
Lyon  before  f — Story.  I  have  teen  him  before 
at'Newiogton*Greeti ;  1  reuted  a  houte  that  h* 
built. 

William  Smith  sworn, 

Mr*  Warei.  Where  do  you  live  f-^Smiih.  I 
liva  m  Raaton*roir,  at fionald ;  1  am  a  famtiv 


S43]  27  GEORGE  U. 

What  do  yon  rent  per  year?— An  hundred 
mnd  OTejpoundi  per  year,  and  ha? e  these  twenty 
years ;  it  belong  to  the  duke  of  Portland. 

Look,  if  you  see  Mary  Squires  in  court- 
Yes,  Sir ;  1  see  her. 
Did  you  ever  see  her  before  ?— Yes,  I  ha?e. 
Tell  us  where  you  remember  to  ha?e  seen 
her  about  a  year  and  a  half  affo. — I  saw  her  in 
my  cow-house  on  the  15th  of  December  1752. 
Hail  she  been  about  the  country  some  time  ? 
^She  had  a  pretty  while ;  1  saw  her  several 
times. 

Have  you  seen  her  before  that  time?— I  have. 

How  came  she  in  your  cow-house  ? — They 

came  to  ask  for  lodgings ;    I  was  not  at  home. 

Who  do  you  mean  by  they  ? — ^I'he  company 

that  was  with  her. 

Who  did  they  ask  ? — My  housekeeper ;  her 
name  is  Swain. 

When  did  you  first  see  them  about  your 
house  ? — The  next  day  in  the  morning,  which 
was  the  15th  of  December. 

Had  you  any  conversation  with  them  .'—I 
had  none  at  all. 

Are  you  sure  this  is  the  woman  ? — I  am, 
that  was  in  my  cow-house;  there  were  two 
men  and  two  women  with  her ;  she  called  them 
her  sons  and  daughters. 

Do  you  see  any  man  in  court  that  is  like  her 
son  ? — I  did  not  take  so  much  notice  of  them, 
as  I  did  of  her ;  because  I  have  seen  her  oflen. 
What  reason  have  vou  to  think  it  was  the 
15th  of  December  ? — \  was  out  the  day  before 
at  Dr.  Crow's,  standpiog  of  apples ;  and  when 
I  came  home,  my  people  told  me,  the  people 
that  had  laid  there  biefore,  came  to  ask  for 
lodging  again.  They  had  lodged  in  our  cow- 
house aud  bam  before  that. 

Are  you  sure  of  that? — ^They  have  asked 
me  before  this ;  and  used  commonly  to  come 
about  once  a  year,  for  a  pretty  many  years 
together. 

Has  this  woman  herself  asked  you  for  lodg- 
ing?— She  has.  I  ha?e  known  her  a  pretty 
many  years,  and  have  seen  them  abont  the 
country  ;  they  lost  their  horse  the  while  they 
were  at  my  house  ;  1  think,  they  said  it  was  a 
little  fflack  one ;  the  son  asked  my  people,  in 
my  hearing,  whether  they  saw  him  or  no. 

How  long  did  you  see  them  afterwards  ? — 
They  lay  at  my  house  till  the  Sunday  af\er. 
They  were  there  three  nights  and  tw  o  clays, 
and  lay  in  my  cow-house;  they  came  on  the 
14th,  but  then  I  was  not  at  home. 

How  long,  from  that  time,  was  it  before  you 
saw  them  4gain  ? — 1  was  at  home  once  when 
the  son  came,  as  they  called  him,  to  ask  for  the 
horse. 

Were  you  examined  on  the  trial  of  Mary 
Squires?— Yes,  Sir. 

Old  you  then  swear  she  was  the  same 
woman  r —  Yes. 

Do  you  now  believe  she  is  the  same  woman  ? 
-^Ido. 

Cross-examined  by  Mr.  WilUs. 
'  Were  you  examined  when  Mary  Squires 
•nil  Itaaaiiiifth  W«Ui  wm  trM  r-s-l  was. 


Trial  of  Elizabeth  Canning, 

How  long  after  Wells  was  taken 
was  soon  after. 

How  soon?— Within  a  fortnight  c 
weeks  after. 

Were  you  examined  in  this  place,  wl 
are  now?— I  don*t  know. 

Where  was  it  ?— I  don't  know  where 
am  sure  I  was  examined. 

Had  you  any  conversation  with  the 
on  the  15th  of  December,  in  the  mor 
No,  I  only  went  and  looked  at  them ; 
not  speak  to  me. 

Then  you  cannot  say  you  know  the 
the  two  men,  and  two  young  women  7 
do  not. 

How  long  before  that  December  mig 
when  they  were  there  before?— May -1 
a  twelvemonth  before. 

Did  you  ever  see  them  at  Mrs.  Weill 
in  vour  life?— No,  Sir. 

How  far  is  your  house  from  Mrs.  1 
—It  is  near  two  miles  distance. 

What  had  you  been  doing  the  day  tbi 
to  your  house?--!  had  been  stamping  a 
make  cyder  with,  at  Dr.  Crow's. 

Were  the  apples  your  own  apples? 
were.  I  went  there  for  the  use  of  his 
he  p^ve  me  leave. 

HoMi;  long  had  these  apples  been  gil 
-•I  believe,  about  two  mouths. 

Do  you  keep  your  apples  so  long  bef< 
grind  them  ?— Yes,  and  longer  too. 

When  did  they  go  away  ?— On  the  I 
morning,  the  third  day. 

Did  you  know  where  they  were  gc 
No,  I  did  cot. 

Did  vou  see  her,  after  that  time,  till  y 
her  in  Newgate?— No,  Su*. 

Were  you  any  time  in  January  i 
Wells's?— No,  Sir ;  I  seldom  go  by  the 
Had  they  any  thing  to  sell?--No,  c 
saw. 

Did  you  ask  Dr.  Crow  leave  to  i 
press?— He  was  then  dead,  I  believe  ;  ] 
his  gardener;  the  family  were  not  in  thi 
try  then. 

Why  do  you  fix  upon  that  day,  you  si 
your  apples  on,  to  be  the  14th  of  Decc 
Did  you  make  any  minute  of  the  d( 
know  it  was  that  day  ;  I  did  make  a  n 
1  sold  some  corn  that  week,  and  deliverer 
same  week,  and  I  set  it  down  in  my  boo 
Don't  vou  sell  corn  almost  every  wi 
I  do. 

What  day  of  that  week  did  you  sel 
corn  ?— It  was  on  the  Saturday. 

Where  is  that  book  ? — It  is  at  home. 
Why  is  it  not   here? — 1    did  not  I 
should  have  occasion  for  that  here. 

Is  your  house  farther  from  London  thf 
Wells's  ?— Much  about  a  like  for  that. 

Is  it  in  the  way  to  Mrs.  Wells's  ? — N 
out  of  the  way,  on  the  left  hand. 

Is  it  in  the  road  to  Basingstoke?—] 
nothing  of  the  place. 

By  Mr.  Nares, 
You  lay  you  wer^  not  J^ypfi^'iHI  i 


M5] 


^/&r  Wilfhl  and  Corrupt  P^rjuri/. 


A.  D.  1754^ 


pUce  yoo  are  are  now  in,  at  ihe  otlier  irial  ; 
tlo  you  koortf  whether  it  was  in  this  court  or 
nil,  vou  were  eitauiined  ?— -1  was  examined, 

>Viis  it  i*hen  Squires  and  Wells  were  trie<l,f)r 
mi  »uy  oLker  timti?'--!  think  it  was  ttieo. 

By  Mr.  Justice  Clive, 

f  Were  you  efer  ex'ammed  in  this  ootirt?-— 

ever  wa«,  but  once, 
*   Wtrt  you  ever  examined  iu  a  courl  of  jus- 
i|pe,  at  any  time,  but  when  you  was  exaiuioeii 
mbout  the  ly^yp^^^  &nd  Wells  ?-<-No. 

Where  were  you  examined  ?-• -Some  gen- 

m*?a  examuied  Die  about  it. 

Wns  it  iu  this  court,  or  at  Hicks's-Hall  ?--- 

lUkftow  (lick»*s>Hal1. 
'  If r,  Nares.    Was  the  oW  g'ypsey  in  court  at 
time  f^-'Smiik,     No,    she   was   theci    id 
^ewi^ate. 

€0Urt.  Thi«  must  be  before  the  ffmnd  jury 
mi  liteks's-HaM,  when  the  bill  \w^  found. 

hoomworih  Dane  sworn. 

I.  Bane.  I  keep  the  EeJI  at  Enfielil-  Wash  ; 

have  liveil  there  tw II  yeMrn  ahila-Ualf;  but 

bate  lived  near  there  about  twelve  yeara  ami 
t'baU. 

Mr.  Nares.  Do  you  remember  ever  aeeiog 
tfary  Si|uircfl  there  P  Look,  and  see  if  you  see 
bcr  in  court.---  L.  Dam.  That  is  the  wocnau,  1 
am  sure  (|Miintiu^  to  her.)  J  caunoi  ^ay  I  ever 
taw  I  Mir  before  winter  was  twelve-mQutn. 

Wliat  f»urt  of  (he  winter  diil  you  see  ber  P— 
i  caoDot  remEiubcr  the  Cirst  iirne ;  but  i  au] 
■use  I  saw  her  on  old  Cbri^iu)aa*Day»  and,  I 
believe,  I  saw  her  before. 

What  reason  have  you  to  remember  the 
lay  T"*yiy  man  caiue  to  me,  and  1  promi&tid 
hwa  a  hohiky  on  the  old  Chiisttuas- Day, 

Whrn  did  vou  iiromii»e  liim  that?  --I  pro- 
mised it  hiru  ou  New  Christmaa^Day. 

Uad  heoueou  the  new?*— Yea,  8ir.  On 
(tie  tiU  Cbri«itma«  Day  I  went  up  lo  my  shop 
(I  keep  a  collar- maker's  ibop ;)  while  I  wat; 
Ibere,  iarmer  Norton  came  atid  iisked  me,  if  1 
had  ever  a  coUar  thai  woujd  fit  bib  hor«e ;  1 
mea&urt^d  his  liorse,  anil  put  it  down  in  my 
look  ;  he  said«  be  would  come  and  settle  willi 
IB«  on  the  Sunday  following-.  I  fitted  it,  and 
carried  it  home«  aud  leil  it  tlial  very  day,  as  I 
«(eiit  10  dimmer. 

What  book  did  you  set  it  down  in  ? — In  my 
4ay'book ;  it  is  a  piece  of  paper  sewe^ 
^gelher, 

,  Coui4  you  liave  reuivmberetl  it  wilbout  that 

pcitm^aitce? — 1  cannot  sav  I  couhl. 

Where  is tiiat  book?—!  believe  I  can  produce 
it ;  it  is  nut  here }  but  i  am  suce  it  was  old 
Christmas- Day. 

Dy  you  take  parLicular  notice  of  her  tliat 
day  ? — YeS|  8ir,  I  did.  I  was  Hllin|f  a  barrow 
of  gi  >i««l«  from  a  he:ip  at  my  d(«or,  to  lay  down 
In  the  yard  ;  1  stood  rei»tin(r  my  self;  she  came 
ky  me^  and  I  looked  very  wisbKilly  at  ker. 
J«  alia  weut  by  me,  the  wind  blov^eil  up  her 
0i¥m^  and  there  waa  a  great  holem  the  heel  of 


her  stocking*.     I  saw  her  tiU  fcbe  got  into  the 
field. 

Did  you  see  l>er  when  she  vras  b  confine* 
ment  ? — 1  did,  aod  wheu  she  was  taken  u§ 
and  saw  her  g:'»  into  the  cart. 

From  what  you  observed  on  her  goin^  1 
difl  you  believe  it  was  the  same  person  ? — Ye 
Sir,*!  am  sure  of  it. 

Are  you  sure  qow  this  is  the  same  person  1 
Yes,  Sir,  I  am.  I  saw  ber  in  Newy^aie»  i 
was  sure  of  il  then. 

Crosg-examined  by  Mr.  WUk§, 

Did  you  ever  converse  with  her  T— N^' 
never  at  all. 

How  near  was  she  to  you  when  she  walked 
by  ? — I  believe  it  might  be  two  or  three  yardi 
oJf. 

Have  you  a  coach -road  goes  by  your  bouse  F 
—Yes,  Sir,  the  York  road. 

Do  you  know  WilUam  Headland,  that  ha 
been  examined  ? — I  do. 

Did  you  see  any  boily  with  her?— No^  1  saH 
nobody  with  her, 

Wms  that  the  only  time?—-!  belie va  1  sa^ 
her  several  times,  but  cannot  fix  upon  ttk 
days. 

li>id  you  see  any  yoang  people  witJi  berN 
I  saw  Iter  sou  several  liinea. 

How  long  after?  -!  caimot  Hay  how  lonoj. 

Did  you  ever  see  her  daug-biers  with  ber?- 
No,  only  \^  hen  Ihev  were  taken  up. 

Was, it  a  very  high  wiod  tliat  day  ? — It  w 

What  had  she  ou  her  bead  ? — I  cannot  tell., 

Was  her  face  covered  over?*~No,  it  w^l 
not. 

How  diil  she  waJk? — She  went  crouch inf 
and  cringing. 

Which  way  was  her  face  ?— It  was  then  to- 
wards the  town ;  1  looked  at  her  very  wish.- 
fully. 

Then  you  cannot  say  you  saw  her  bafoco?-*-  , 
I  belitte  I  did. 

Do  you  know  Elizabeth  HcadlaiwlP  What  \ 
her  chariicier,  a  good  or  bad  one,  in  the  n^^igh*^! 
bourbood  ? — ^l  never  heard  she  robbed  ajoyl 
body. 

Is  it  as  good  as  the  reit  of  ber  neighhourt  ^"^i 
I  cauuol  say  that ;  her'^s  is  not  so  clear  as  iKtuif  1 
people's  aie;  bu4  1  never  beard  &be  wa&  #1 
thiif. 

What  m  hav  fop^s  character  ?-i-l  know  an  ill 
of  him. 

Do  you  know  Diivid  Dyer  ?— Yes,  Siif,  1  dck 

What  is  bijicbaracler  f^^He  is  a  very  hanetl 
man. 

By  Mr.  Nurei, 

I  own  the  boy  has  given  o  stranife  aoooun#^_ 
but  did  you  ever  bear  any  harm  by  bi«ii  ?— N4%  ' 
never  in  my  hf^e. 

In  whsL  pariit'iilar  is  the  mntber^f  character 
sup|josed  to  be  bad  ? — f  do  oi^t  kii<»w,  not  1. 

II  ow  tiir  docs*  David  Dyer  live  from  you  ?— •  ; 
He  livea  oppoftite  me. 

What  is  ni*i  bus^iuCi^s  ? — He  is  a  ftheph<>rd. 
Did  yon  ever  hear  any  barm  of  him  ? — N0|| 
never  iu  my  life;  be  has  a  good  charaotar* 
51  N 


147]  S7OB0Ri3B  O. 

SoHUM  JltltOi  BfVMII* 


;S.  ifni«f .  I  Ihre  H  While- Weblif,  «i  EnftiM 
and  have  li?«d  there  theee  foortecD 


jean, . 
Mr.JVoret.  Whatareyour— ;$.  Jnioe.  I  am 


•  )abooiiiiff  mao. 

I>oyoakiiow8iieha 
^Yei;  Sir. 


iMarySqnarei? 


Look,  and  aee  if  yoa  eee  her^-Tbal  ia  the 
woman  (pointing  to  her). 

How  long  hare  joo  known  her  f— The  firat 
cf  iny  eeeing  her  waa  on  a  Friday  Moming: 
aha iAad  ma»  if  J  law  a  little  hrown  horM? 
Thia  waa.  aa  near  aa  I  can  goeei,  abont  nweor 
ten  daya  More  new  Chrietmaa-day. 

How  came  yoa  to  fix  upon  that  time?— 1 
kad  been  at  a  |rfaoe  called  Cby-hill»  and  met 
jMr  b  the  hoihoi:  ahe  aiked  me  if  I  law  thia 
borwii  and  eaid  hie  lega  were  tiedi  and  he  had  a 
degnponhim:  thenltnmad  back anin, and 
MkedfWhalaortofacl^r  She  said.  Ear  name 
waafibnirei. 

.  For  what  mnmdidahe tell  yon  that r-<»Be- 
CMiM  I  vNffht  git e  her  an  necoont  of  tbto  horie, 
if  I  Hghtofhim. 

Vpcii  year  oath,  are  yon  ame  thia  ia  the  wo- 
iBan>-*upon  my  oetby  I  aom  8». 

Did  yoacter  aee  her  any  liaM  bfrt  that  f^I 
aofer  law  her  after  tfail  tinetill  I  law  her 
In  Newgatei  hot  do  not  know  the  partionlar 
di^Ieaw  her  them. 

Bowleng  wae  it  after  yon  had  aete  her  he> 
ftref— It  waa,  I  beiiefe,  a  ^varter  er  half  a 
jearafter. 

Were  yojo  eertahi  then  it  waa  the  eame 
Mraonf— I  waa,  Sir;  and,  to  the  beet  of  my 
knowledge,  I  believe  now  it  ia  the 


CroH-exaflBined  by  Mr.  WiUet. 

What  if  yonr  employ  F— I  fbHowfatavhw 
work:  I  work  aometimea  at  Ch^nnt,  aoS 
a9metimea  at  other  plaoea. 

Hare  yon  any  fiunay?— I  ha?ea  wifiiand 


Why  are  you  poeitire  as  to  tbe  timef-^Be- 
eanee  it  waa  on  a  Friday  morning  that  I  saw 
her;  and  on  the  Sonday  following  1  met  her 
again,  and  naked  her  if  ahe  had  found  her 
horee;  andahemid,  No. 
/  Why  do  yon  apprehend  it  wu  nme  or  ten 
daya  beibre  new  Cbristmas  yoa  bad  this  oon- 
Tenation  with  the  gypeey?-*!  think  new 
Christmas  was  the  Sanday  se'nnight  following. 

ilre  yoa  sure  Cbristmas^day  waa  on  a  Sun- 
day that  year  ?— No ;  it  was  on  a  Monday.  I 
aay,  it  waa  the  Sunday  waa  ae^night  beibre 
new  Christmas  that  1  mw  her. 

Wat  there  any  body  with  her  at  that  time  f 
<— There  were  a  man,  two  woosen,  and  two 
chitdrfD  wiih  her,  tbe eeeond  time;  thne  waa 
nobody  with  her  Ibe  firat  thne. 

Had  she  either  of  the  tioMe  einne  er  asa 
wUb  herf^Ne.  neither. 

Mr.  Jnst  CjL.  iwn.  i^^p 


ZWof  &fEBmMkCmmb^ . 


ByMr.irUfai., 

^  How  old  might  they  be?— Foor,  ei 
sur,  or  seven  yeara  oM. 

What  was  the  colour  df  the  hom 
ooired  after  f— A  little  brown  one,  with 
tied  together. 

.  Do  you  know  fbrmer  Smith  P— I 
honee  stands  about  two  or  thrse  pole  fro 

Did  theee  two  chihiren  aeem  to  hi 
ebUdren? — I  did  notobeerve  their  colei 
seemed  to  belong  to  that  gffBg. 

Do  you  know  of  their  lying  mfitfOM 
cow-house?— I  do;  they  did,  to  the  hi 
knowledge. 

If  those  people  had  lab  there,  do  y 
he  would  not  have  remembered  there  t 
children  with  them  ?— Hie  i 
thing  to  me. 

Mr,  Naru.  Did  yon 
Smiih'a?— &  4rnoi.  I  never  saw  the 
cow-house :  1  Imow  no  otherwiae  d 
met  them  on  the  Chace,  and  heniBd  I 
there;  audit  bemgsonear  mylnmai 
hear  them  talk  in  the  cow-houae. ' 
Sunday  morning  I  met  her  betwitfl 
and  White-Webbs:  I  asked  her,  eW 
had  found  the  horse  or  not?  She  I 
hadnot. 

Mr.  Just.  CUve.  Was  it  then  thatj 
two  wooMn,  and  two  chihiren,  wtre  H 
— &  Jniol.  It  was. 

Mr.  Jual.  Clive.  Look  about  the  oi 
aee  if  you  see  the  two  women  that  w 
her^— &  Jlraol.  1  cannot  swear  to  aa 
beaMea  her,  really:  1  did  not  take  no^ 
two  woQien ;  1  dSd  not  converse  with  t 

Mr.  Nam.  Did  the  notioe  yon  tod 


the  first  time  you  saw  her,  give  yon 
idea  of  her  peraon,  as  to  ask  her,  of  i 
accord,  whether  she  had  found  her  1 
S.  Arwft.  I  did. 

Recorder,  What  particular  reason  1 
to  imagine  that  these  two  children  « 
them  at  fanner  Smith's?— 5.  JmoT. 
know  that :  I  heard  a  noise  of  the 
small  people ;  I  cannot  say  they  w 
dren,  young  or  old. 

Recorder,  Could  yen  distinguish  t 
of  children  ?-~<S.  Amot,  I  could,  to 
but  I  did  not  aee  tbe  old  woman. 

Mr.  Baron  Le^e,  You  say,  yon  fl 
saw  the  old  woman  on  a  Friday ;  wh 
yon  aaw  her  nextf--^.  Amoi,  On  thi 
after  the  Friday. 

Mr.  Baron  l!(^ge.  Did  yon  see  her 
Sunday  afler  that  Sunday  again?— 5.  A 

BliMohcth  Amot  sworn. 

S,  Amoi,  I  am  wife  to  Samnel  A 
have  lived  where  we  do  fourteen  yean 

Mr.  Nores.  Do  you  kttow  Mary  8i 
M.^Lmoi.  Yce,8ir. 
.   bsk  eheoft  the  eonrt,  end  aee  if 
•Aiiw4ten  aheis;  laaa  amwj 

—    •  -  Hm-fmnM 


fir  WifftJ  and  Corrttpt  Perjury* 

We  Mm  her  f-*Ii  iru  about  •  vreek  bcfare 
Nfn  CbmifDM. 

lloir  Mine  jr^u  to  fix  upon  that  turn  ?  «To 
Um  biA  of  m^  koowtedge,  it  wag  r  I  kuow  it 
wu  ibiiQt  A  week  befare  the  flrsi  New  CliriaU 


A.  D.  1764. 


[SSO 


Ifbcre  did  you  see  her  ? — I  aaw  her  lyiug 
jl  fiiaier  Siiii(ti*8  eow-hodse,  close  to  mv 
kmf :  I  »«w  her  come  out  of  the  cow*  bouse 
mQ  the  lane  on  the  Chace.  She  a«ked  me,  it' 
f  mn  a  Uttie  horse  of  ber'aP  I  aaid,  I  had  not. 
Thik  h  tiie  truth. 

fVaa  ymtt  buabaiid  with  you  at  that  time  ?— 
Brwaa  mH* 

Dili  vott  aee  any  others  id  company  with 
Ifl-f^-l  MW  aetera]  more,  but  I  did  not  lake 
wnm  oi  them  :  I  saw  her  son  ou  the  Chace^ 
viMui^  for  his  horse. 

Dii  jati   aee  her  aHer  that?-- No,  nerer, 
«ahriii  Newgate,  till  now. 
Wlirt  tkne  waa  that  you  aaw  her  in  New. 

r?— 1 4iin*t  know  the  time  j  1  oever  kept 
kccwoaaf  that. 

Wu  Ukdtte  or  after  herlrial  ?-^It  waa  lAer 
htrtiml 

Mr,  Jmt  Ctite,  Sliould  you  know  the  son 
if jfou  WW  tn  aee  him  ?— £.  Arnot.  1  took  so 
fidb  atfcmiot  of  him,  f  can't  aay  whether  i 
AoM  know  him  or  not. 

Mr.  Nar€i,  Did  you  ever  aee  a  woman  like 
Ike  old  womaa  in  your  life?-"£.  Arnol.  No, 
ivfir  kdore  1  saw  her. 

Did  you  thiuk  the  woman  you  aaw  in  New- 

r»,  waa  the  »ame  persou  you  saw  enquiring 
ber  horae  f — The  very  aarae  person. 
Do  yuu  think  this  is  the  same  person  here, 
jm  law  there,  aud  in  Newgate  f — The  very 

p  9^      CTroit*  examined  by  Mr.  WilUi, 

^  t  .ng  was  she  with  you  enquiring  for 

^ — It  nught  be  some  minutes  btff'ore 

^  Israeli  ber  back,  and  went  to  look  for  hiru. 

Mjrota  ae*  ber  in  the  cow-bousef— No,  J 

Wiwt ;  I  taw  hrr  coming  out  of  it. 

IMilie  mentiou  the  colour  of  the  horse  P — 
w  iiiff  nit, 

■  id  yoo  aay  to  her?— I  told  her  I  bail 

i&  the  only  space  of  time  you  had  to 
ice,  tUl  yoo  aaw  her  in  NeWi^ate?«-It 

H^if  long  were  you  talking  together  P-- It 
two  or  three  minutes. 
■wear  abeolutely  that  was  the  person  ? 


ni. 


"i  ^^t  ^t 


Bj  Mr.  Nare$, 


Did  yott  cbange  ft  word  with  the  annf— I 

yi*n  jpoa  near  the  cow-house  ?-^My  house 
"^^aloNKltiiit:  atie  came  out  of  the  iarroer's 

pand  aaid»  Oaod  woman»  did  you  see  a  little 

»  ui  mine  f 
Dy  alia  OMiie  towardti  you  before  she  spoke 
""1?— Ni»  ;  t  waa  going  for  a  pail  of  water, 
1 001  to  look  for  her  horae. 


Mc.  Juat.  CUve,  How  came  you  to  aay  that 
mao  was  her  ioo?*^£.  Amot,  Sbeioii},  it  wii 
her  aoo  that  was  calHog  ber  horse. 

Sarah  Stanvk  orn. 
tor.  Nar^,  Do  you  know  Mary  Squires  ?— 
5  atar.  1  do;  that  is  the  gy^t^y  (poiiiiinif  to 
her).  I  live  Ihe  next  door  to  Mrs,  Wells'o 
house  at  £nfie1d-Waab  :  my  busbond  rents  m 
farm  there. 

How  long  have  you  lived  there  f-«l  litv« 
lived  there  three  years  this  May. 

When  was  the  first  time  you  aaw  ihe  gyp- 
sey  ? — She  was  at  my  house  on  the  18th  or 
19th  of  January  was  twelve- month. 

By  what  do  you  recollect  ihe  day  ? — My 
husband  was  gone  to  Hertford  for  a  load  of 
pease  for  a  gen tk- man  in  town :  the  note  ia  in 
court,  aa  far  as  I  know,  with  the  dute  on  it: 
Mr.  Miles,  the  former  attorney,  had  it  cf  me. 
Did  you  ever  see  ber  nt  any  other  time  f—I 
never  aaw  hcrbeibre  or  after^till  she  waa  takvti 
up. 

Mr.  Just  CUve.  How  near  do  you  hve  to 
Mra.  Wells's  house?— 5.  Star.  My  "houde  is  aa 
near  to  her  bouse»  aa  it  ia  across  ibe  setaiona* 
house  yard. 

Mr.  Narcs.  What  coufersstion  passed  be- 
tween you  ? — S.  Star,  At  first  she  came  and 
asketl  at  the  door,  if  I  bad  any  delft  to  mend 
or  cliina.'  Hy  man  and  hoy  were  at  dinner:  [ 
bit!  them  give  her  an  antiwer,  because  t  waa 
busy.  Then  she  came  into  the  kitchen  lo  me, 
and  asked  to  buy  some  pork  of  me,  imd  Urown 
bread :  I  said,  I  bad  but  ihat  piece  of  bread  to 
ihe  house,  and  more  need  lo  buy  than  U)  stll. 
Then  she  asked  me  lu  sell  her  some  cltitter-  ' 
lings,  I  having  some,  and  black  puddings, 
lying  on  tht*  table :  I  gave  her  a  good  pteoo 
of  chitterling  lo  get  ri«l  of  her. 

Huw  long  mtgiil  this  con>ersation  take  up? 
— I  had  rather  set  a  lesser  lime  thiin  it  waa,  I 
do  beheve  she  was  three  quarters  of  an  hour 
with  my  men  and  me,  that  is,  m  my  sight  and 
lieariug.  8he  oflTered  to  tell  my  servantif  their 
fortunes,  and  to  lell  me  mine  She  was  nome 
time  in  the  p<»rch  with  my  servam ;  bui  I  be- 
heve  she  was  in  my  sight  three  quarters  of  aa 
hour. 

Did  «he  tell  any  of  them  their  fortunes  ?— 
Atler  she  found  she  conltl  not  tell  me  mine, 
she  said,  DoiiU  be  seared  nt  me ;  tor  t  liave 
been  before  dukes,  lords,  and  earls,  and  1  burl 
nubmty,  madam  ;  I  will  not  bun  yau.  She  did 
not  tdl  any  of  my  uervunis  their  fortuue;*  in 
my  henrini(.  1  wanted  to  get  rid  oi'  ht  r,  for  I 
was  terribly  scared,  seeing  such  a  strange  gyp* 
tey  woman ;  tht»ut;h  I  have  set  u  ltiiudred«  of 
gypsies  atone  tuiie  or  other:  the  man  took 
her  into  the  porch,  then  the  boy  bitlted  the  door^ 
so  we  got  herout.  I  taw  her  when  she  »aa 
taken  up  and  put  tnto  the  cart ;  and  I  saw  ber 
in  Newgate  afier  that, 

Areyoti  sure  this  is  the  same  person  ?->-Yei| 
Sir. 

Crosa-eramined  by  Mr.  IFilfes. 
How  trt  you  certaia  ■•  lo  timo,  so  is  to  to 


•BH  9T  GEOROE  IL 

h  to  be  tlie  18lh  or  19Hi  of  jMKmry  f^Ufion 
this  acoovat,  my  biitbaDd  was  fOM  for  ft  Umi 
of  peaM,  and  the  note  wot  dotoil  tbe  18th  or 
19tb  of  January. 

Where  is  that  note? — It  was  delivered  mto 
Wr.  MItef  the  attorney's  haads,  and  I  have  not 
teeo  It  since. 

How  loD|(  is  it  ago  since  yoo  delivered  it  to 
liim  ?—  1  believe  it  may  be  aliuve  a  twelvemonth 

•go* 

What  did  voo  look  opon  him  to  be  at  that 
time?— I  took  him  to  be  a  laivyer  eonoemed 
for  Elizabeth  Canning. 

Where  was  your  hmband  when  yoo  give 
him  that  note?— I  can't  tefl. 

Mr.  Just.  Clirc.  When  diil  jou  deliver  this 
note  to  Mr.  Miles?— iS.  5/ar.  Indeed  I  cant 
ten.  1  know  my  husband  took  the  pease  up 
one  day,  and  delivered  them  the  next ;  that  is 
the  reason  I  say  the  18th  or  19th  of  January. 

Mr.  Nares.  We  have  not  got  the  paper  to 
froduce. 

Mr.  Barou  Legge.  Didyou  deliver  that  before 
or  after  the  trial  of  Mary  Squires  P^iS.  Star. 
After,  Agre&t  while. 

Mr.  Wiiiet,  How  came  you  not  to  appear 
here  on  Squires's  trial? — S.  Star.  They  did 
not  require  it 

Daniel  Vats  sworn. 

D.  Vass,  I  am  a  day-labouring  man  ;  and 
live  in  Turkey-street  in  Enfield  parish,  and  have 
lived  tlit're  almost  fourteen  ^ears. 

Mr.  Narct.  How  near  is  that  to  mother 
Wells's?— 2).  Vax$.  About  a  quarter  of  a  mile, 
as  near  as  I  can  guess. 

Have  you  ever  seen  Mary  Squires?— I  have 
■een  that  woman  that  was  in  Newgate ;  I  don't 
know  her  name. 

Lof>k  alrout  you,  and  see  if  you  can  see 
tier. — ^Therc  she  is  (pointing  to  her) :  she  is 
remarkable  enough  :  bhe  has  now  a  red  cloak 
on. 

Where  did  yon  see  her  first  ?— The  first  time 
I  saw  her  i|;oin;^  alonflf  the  causeway  behind  my 
house ;  it  was  on  uld  Ciiristmas-day,  by  the 
new  stile  the  5th  of  January  17d3.  1  was  then 
in  my  own  yard. 

Huw  near  ivctc  you  to  her  ? — Perhaps  1 
mi^ht  be  four  or  Ava  yards  from  her. 

Bad  you  any  conversatiou  with  her? — I 
never  said  any  thing  to  her,  or  she  to  me. 

IIow  came  you  to  take  such  notice  of  her  ? 
By  reason  she  stopped  ;  and  I  thought  she 
would  have  come  into  the  yard,  but  she  did 
not ;  if  she  had,  1  should  have  told  her  there 
was  nobody  in  the  house. 

Was  there  any  body  in  the  house  then  ? — 
Ko,8ir. 

Had  you  a  full  sight  of  her  face  at  that  time  ? 
—1  had,  certainly. 

Was  she  alone  ?— She  was,  without  she  had 
got  an>  body  under  her  cloak :  1  san  nobody 
with  her. 

Did  yoa  see  her  any  time  else  ?— Only  in 
Newgate. 

Did  thoe  obMrtatioot  yoa  mide  of  her,  fur- 


TAA  ^EGubeA  Cmmtnf  , 


niah  ym»  wfA  a  aoficiettt  i 

person,    to  recollect  she  was  the  MB 

am  sare  she  is  the  aame ;  now  I  am  auf 

Sir.    It  is  the  tame  perm,  hat  not  Ibi 

ekrtbea. 

Mr.  Jufit.C/<ve.  Whatcok>ured  ckitt 
she  on  then  ?-*  Vat$.  She  had  a  brick-ci 
gowD  on,  an  oM  red  chMk,  and  a  whit' 
loured  one  over  that,  and  an  old  Idack 
hat;  it  waa  not  a  black  hat  aa  women  o« 
ly  wear. 

Mr.  Nares,  What  reason  have  you 
upon  Old  Chrislinas  day  ?<— Feus.  By  r 
went  to  work  with  a  master  1  have  wot 
almost  eleven  years,  and  lie  did  not  c 
ahouM  work  on  that  day. 

Why  did  he  not  diuw  you  shooM  v 
By  reason  he  thought  it  was  Cbrista 
and  ought  to  be  kept. 

Are  you  certain  that  was  the  name  d 
saw  this  woman? — 1  am.  Sir;  that  a 
same  day  ;  my  door  was  locked  when 
home,  and  I  did  not  know  where  my  w 
gone  with  the  key,  and  at  that  tine  tne 
came  by. 

Crott-cxamtned  by  Mr.  WUfa* 

Did  you  ever  aee  her  before  ?— No 
nor  never  saw  her  again,  till  I  saw 
Newgate. 

How  long  did  she  stop  there? — Per 
minute,  or  half  a  minute. 

When  you  went  into  Newgate,  did  i 
by  yourself,  or  with  other  persons  f— 1* 
go  by  myself;  if  I  had,  I  shouM  nc 
n)und  her ;  hot  we  went  but  one  at  a  t 
to  her. 

Was  she  brought  out  among  a  nun 
other  persons,  or  was  nhe  singled  ooti 
sat  upon  the  bed,  but  1  knew  her  long  b 
came  at  her. 

Were  there  any  other  prisoners  thei 
did  not  know  who  were  the  prisoners. 

Was  shesittingby  hersell?— She  sat  I 
self  on  onesideof  the  bed. 

Were  there  aay  other  people  shewed 
in  that  corner  of  the  room  besides  the  | 
herself  ?«-There  was  no  other  person  sit 
the  bed,  ni^h  her,  as  I  kuow  of. 

Were  tliere  any  (»ther  people  iu  the 
There  were  a  great  many  ;  bnt  I  kn 
woman  when  1  saw  her,  and  should  J 
thousand. 

By  Mr.  Justice  C^ve. 

Who  desired  you  to  go  into  the  root 
don't  know  who  it  was  ;  it  was  by  th 
tiemen. 

Did  any  bo<1y  come  np  from  the  c 
wiih  you^ — Y«»,  there  were  nine  or  tei 
came  up  in  a  coach  together. 

By  Mr.  Willet. 

Did  yon  all  go  into  Newgate  togeth 
don't  know  how  many  did  when  1  did, 
many  went  in  together. 

Was  not  the  porposa  of  yoor  [ 


US] 


Jitf  ^UJiil  and  Cot^rupt  Perjury. 


A.  a  17^*. 


[55* 


HHT jpdil  eSifcia  find  iviit  llif  |fip»ejf  T— Nft.  no ; 
Imosmetl  up  h»  nrr  if  i  t-ouM  find  out  the 
•itie  troHMKi  lotit  \  lin«1  set-n  bitorc*  A  Mmct 
1*1  itt  her;  fitit  a  mtia,  if  h«  hts  but 
I  tjiv,  might  know  ihftt  ifotntii  if  he  teei 

By  Mr,  iV<rrei. 

Upfta  your  otttb,  ilkl  nny  Imdy  poltit  On*  to 
jiru  UmC  tbu  i¥fti  I  lie );}  |>be)'  T — No,  no ;  I  did 
out  naiit  ihrttk  10  An  tTml. 

Did  aoy  (>oti  V  tell  ^'ou  how  she  vvas  dressvd  ? 
-^BJii,  criUHjIy. 

W>»  ther«  »rjy  other  woman  there? — There 
wcrr  itt  the  rooni. 

Did  yov,  ufyour  own  accord,  say  which  wai 
|ki  wowuiF^-CiTiaiiily. 

Ey  Mr.  Ju«lireCVf^. 

Beii  iM^r  do  you  live  to  mother  VV^^tls's  r->- 
1*  KV  «   1  c«o  |£ue&s,  abijUl  a  quarter  of  a 

Hare  JM  erer  heen  in  her  house  ?-^l  hare 
ar^MflnM. 

fffTe  yotj  there  (hehej^jinning  of  /anuary  ? 
*— iMi^  pr-  a  breti  in  ihr  hou«e  fthDve 

!»•  y^i^  T^ere  taken  up* 

M     "  iijid  ycHi  it!s*Ki  to  |rf»  there  at 

•a^  atu,    \  have  been  in  the  house 

it«^  I    1 1>  ^  then  site  fold  lieer ;  theo 

UN  I  ike  a  pint  of  beer  ih^'e^  aa 

h«U!<e. 

^  m  ihefjffJt  p^'t^on  that  ap- 
^  ,,..,*,,  ^>,  iv-  N  ewgate  f  —  J  flif ,  f  am  «ure 
k^  ttnow  the  fentlemeD'a  namet  otte  from 

.'  ^reorder.  Hate  yoii  heard  their  names?— 
^i»»  I  hate  hearil  a  jjoud  many  of  the  jftfiMe 
•Ba*i  names  ttiat  are  on  the  ^\rV%  behalf ;  if  I 
%ti«tohc*rtherrname9|  p^rhapfi  1  m»g;blkt)QW 
ll*ta. 

By  Wr.  Jtifttce  €im. 

Do  you  ktiow  faroier  Siuilb? — ^I  do,  very 

iyo«  know  hia  cow*housc  ?^^I  nerer  wsa 
•yvd. 

Jant  Dade^eii  sworn. 

1  fire  io  Turkey -street  at  Eo- 

Hrviv  loii"/  hare  yon  !i»ed  there  ? 
'  there  two  years. 
H  ? — ^1  Ifeep  m  shop;  T 
iiecar,  co^e  aud  tea,  and  those 


\' 


Ury  9«|iiireif^t  do  ;  this  i& 

u  liiHt  MT  her  ?— Tire  first  time 

p;   the  tTtiM?  I  cao^  fell;    hut  1 

iji  )mrtimtar,  that  was  the 

riiiaf  week, 

»  '  iiwf i«4  ? -* The   new    Christmai 

I  V#' 

■IP?-  -Sli«  came  for  ciflee,  tta,  aed  butter; 
I  cfltfH  ttH  wfm  paitknkr  wtig:tit  riic  had 


•ormint  did  nW  come  tt>  your 


Had  ahebeefi  at  y^nr  ahop  befbre  that  *«i« 

She  had  aeveral  times  before  ilmt. 

Why  do  you  Hx  upon  that  tiny  f — We  drcMw 
«d  a  piece  cif  meal  lor  our  cubtonien,  ai  I 
uiiUiilly  do  at  Chrtsimas:  ihia  wu\  dresard  oq 
Chrifiitmiis  Hay  ;  ihe  customerg  cauie  on  Tues- 
day uii£bt  and  Wednesduy  iu|(ht ;  tod  this  of 
lii^r  coining  was  after  my  customers  had  been 
there. 

What  reason  hare  you  to  think  tt  was  titer 
they  had  lieen  tikere? — I  was  in  my  b«iek  house 
w&shing  my  dishis  (that  had  been  u«ed  when 
my  cuaiomera  were  ther#»)  when  Hhe  came  in. 

Did  you  see  her  any  time  alter  that f— I 
can^t  say  partientarly  whether  she  was  or  not 
tt  my  house  after  that. 

From  her  comincf  to  often  t^  yonr  ahop,  tan 
you  he  certain  of  her  faec  ?**l  know  it  rerf 
well,  ^ 

Did  you  see  tier  in  Newg^ate  ? — 1  did, 

Wns  she  «hei«  0  you  there,  or  did  you  know 
her  of  yourself  ?*.<1  knew  her  immediately,  anil 
then  she  owned  iihe  had  been  at  my  shop. 

Recorder .  Did  she  own  she  had  been  at  your 
shop  that  Thursday  ? — DadwelL  No:  jihe  kneif 
me«  and  owned  she  had  beeo  at  my  shop,  hut  did 
not  fix  upon  aoy  time, 

Mr.  Nar£4.  I  netd  not  a^k  yon  any  more  as 
to  ymir  reriainty  <»<'tbe  pcrMn  then!  are  yau 
8ot«  now  thb  is  the  ptnmf^thdtLelt,  ^es^ 
Sir,  t  am. 

Cross-examined  by  Wr.  WUkt. 

Were  you  ever  examined  before  f>^t  wm, 

By  uhnt  person  wai  vou  exfimiaed ?— •!* 
don't  know  the  genileman. 

How  hm'i  is  it  H^^of---lt  ta  m  twelre-roonili 
ago  hisiClMiKimaa, 

Hovr  long  xn  it  since  yoo  waR  examined  be- 
fore tlie  grand  jury  ?--'  I  don*l  know, 

Wrre  you  e*er  examined  upon  oath?-**t 
was  I  but  not  upon  iuch  thin&;^  as  ihe%e. 

Was  it  upon  the  AMintisbury  men  for  per- 
jury ? — i  d'joH  know  what  rl  wksabotlt ;  it  wti 
abiifit  this  affair. 

When  did  you  reeolleH  any  of  these  rirdtm* 
stnnrev,  abnut  your  washing-  your  dishes  f^^ 
I  ifS'^e  this  account  to  the  ;f rand  jury,  and  told 
the  s«»m*  a;}  1  have  now. 

Mr.  Nntti,  Is  the  account  yoa  tdl  trow 
true  f — DadicciL  I  sin  siure  it  is. 

By  Mr.  WilUi. 

When  wna  it  you  first  rcrotlecte^  M,  to  fell 
those  circuntiitances  of  iwr  being  there  f — I 
eau't  reeidtetH  ti»e  dny  of  ttte  luonth  ;  nfVer 
the^  wt  re  taken  up,  ihe  lawyer  caute  to  Oie, 
Rwd'  I  told  it  him. 

Dt»n'tv«Mi  wash  your  dishes  every  diyf-^ 
No,  I  do  not ;  hnt  f  kfiow  in  part^cnlar  it  frai 
that  dny  :  one  of  my  nMglihoun  came  m,  and 
a^led  me»  whst  ^tmirpe  woman  that  w»  ? 

Did  slie  9tay  utiy  itme  to  your  dMpf*--4dhe 
saL  dowti  and  miiokefl  a  pipe  there. 

At  tire  tim»  ywi  trrw  her  in  Nrwpile,  what 
dny  did  Quires  say  tt  wan  that  »he  was  at  your 
shop  f-«3m  M  not  ny  wlint  day » but  tfie  snid 


ffjfi]  S7<|E0SGSIL 

ihekMirnM:  I aiked iMrwhMber  the 
me. 

Theik  thto  affkir  had  made  a  great  dad  ef 
Doiae  in  the  eoaatrj  f-^Yet,  it  had. 

And  thelawyer  deiired  yon  to  reeolleefclhe 
lime,  didhenotf— Yet,  hedid. 

Yon  my  ahe  emoked  a  |Hpe ;  where  did 
ahe  tit  r— She  mt  down  by  the  ftie. 

Who  it  that  ndghbonr  that  came  h,  and 
asked  ahont  the  uranffe  woman  F— 49he  waa  one 
of  the  Witnemett  bat  n  nnee  dead. 

Waf  the  examined  when  yon  waa  beAveP-^ 
She  waa;  her  name  waa  Anne  IPenley. 

iSrl  Wili^.  Were  yon  by  wlien  ahe  waa 
fpamiined?— Deibffe^  No,  i  waa  net}  tliere 
mainit  (^  examined  at  a  time. 

By  Mr.  Recorder. 

'=  How  eld  are  yon  r— I  am  threeieofe  yeara 
efagiB. 

Are  yon  jio  more?— I  am  not. 

HaVe  yon  aeeo  gypsiei  at  Enfield- Wash  he* 
ihre  this  r-^I  ^fe,  soch  as  are  oailed  gypsies. 

Had  any  of  them  used  to  come  Co  year  mp  r 
»-No,  none  of  them. 


nUqf'JBBmhACtmA^ 


Mr.  WiUa.    Were  they  and  this 
alike  that  yoa  had  aeon  before  P^DedM^  No. 

By  Mr.  B^etnrder. 

What  waa  her  errsnd  the  first  time*ahe  came 
to  yonr  sho|^r-~8he  came  and  asked  if  we  had 
any  eiuna  to  mend. ' 

Had  she  eny  body  with  her?-<~l  nerer  aaw 
any  body  with  her. 

bid  she  Cell  yon  where  she  livedf— She  said 
she  Irred  np  yonder;  and  said  no  mora. 

TMoi  Kellog  sworn. 

KtlUg.  I  am  a  bnsbandman,  and  lire  at 
Enfield  in  a  little  honse  of  my  own. 

Mr.  Noret,  How  long  hare  yon  lived  there  f 
r-£e^.  Twenty-six  years,  oumeMichMl- 
mas. 

Do  you  know  Mary  Squires  P— I  hare  aesn 
her. 

.  Look  about,  and  see  if  you  see  her  now.— 
I  see  her.  Sir. 

When  was  the  first  time  you  saw  her  P— The 
first  Cime  waa  in  Jannaiy,  aomething  better 
than  three  wedu  in  January  was  twelve- 
month.  ^    , 

What  dajr  in  January  ?— I  cannot  say  to  the 

Have  you  any  reason  to  say  yon  saw  her 
before  ?— I  have  not         ^    ^^ 

Where  dkl  yon  see  herP— She  waa  on  the 
other  side  of  the  way  when  I  was  at  work  in 
Mr.  Fletcher^  barn,  at  BaU^a-croas ;  ahe  was 
walking  up  Tnrii^-strssl  giesa,  hi  the  foot- 
path. 

What  have  you  to  ehaige  yeur  OMesory 
svilh,astDthedayP-4  caatsay  hut  a  amgr 
haa  day  ar  twe  bafora  Old  iSkiiimn  Uj. 


ithsforaOid  ChrisCflsaa,  er  |l 

rtther  befoce  Old  Chrialmai.. 

Are  you  eertam  of  it  P— Yesi  I  wm* 

What  da/ of  the^moath  was  Old  Gh 

day  on  P— 11  was  on  a  Friday,  and  lb 

aaw  her  on  the  Thmaday ;  but  1  caefll 

the  day  of  the  month. 

Are  you  sure  it  waa  three  weeka  in  Ji 
'—I  flMaa  so,  and  better. 

By  Mr.  Baimi  Ltgge. 

From  what  period,  or  time,  do  yes 
your  three. weeka  m  January  P— 1  aq 
month. 

Waa  It  the  beginning  of  January 
there  were  two  or  three  days  pest  the  ta 

Mr.  ^arei.  What  do  you  mean  I 
weeks  in  January  f-^KeUog,  1  aakl  thn 
venr  iiear  a  month  in  January. 

Mr.  Baron  Xcgge;  How  long  waa 
Squires  was  taken  npP— JTel^.  I  t 
about  a  month  before  the  time  she  waa  t 

By  Mr.  Narm. 

When  you  my  better  than  three  w 

near  a  month,  do  you  mean  beforeS|a 

taken  upP— I  mean  so. 

Are  you  sure  vou  mw  her  then  P— 1 1 

How  for  is  Mr.  Fletcher's  bam  frsai 

WellsPsP— His  h«ittse  is  very  Hjsar  a  ■ 

it ;  but  the  bam  is  about  a  quarter  of  a 

Did  you  see  her  fooe  then  P—1  did. 

Did  you  see  her  after  thatP— Idk 

walk  by  my  barn-door.    She  asked  i 

bit  of  tobaoeo  ;  I  mid,  I  need  none^  ai 

ahe  went:  I  saw  her  firar  times  in  i 

the  tinse  ahe  was  taken  up.    She  wi 

hem-door  the  day  before  ahe  was  ts 

about  one  o'clock,  and  asked  the  n 

was  ia  the  bam  with  me  (whose  name 

Rowley)  for  a  bit  of  tobacco :  then  s 

into  the  bam,  and  said  to  him,  You 

I'll  tell  you  your  fortune ;  and  told  hi 

is  one  young  man  has  a  very  great  ei 

him,  and  asked  him  to  cross  her  ha 

four  half-pence  to   tell  him  his  fort 

saul,  If  I  do,  I  mast  ffo  on  the  higl 

it :  then  she  turned  herleg  over  the  bo 

away  she  went 

Is  John  Rowley  hereP — ^No,  he  is  i 

Where  does  he  live  P— At  Enfield  hi| 

Are  you  sure  thb  ia  the  woman  ih\ 

yon  for  tobacco,  and  that  aiVerwarda  o 

tell  Rowley  his  fortune  f — It  is  the  sai 

Have  you  seen  her  since  that  time) 

have  not  till  now ;  but  she  is  a  veiy 


What  makes  yon  fix  it  to  be  the  di 
Old  ChristaMs  dayP^I  have  no  j 


CroM-examined  by  BIr.  WUk 

Had  yon  any  conversation  with  iMr 

nop— No,  1  had  none  at  all. 

Had  you  ever  in  your  lifo  iMftkfi 


Had  yon 
--»e^ar. 


J6r  Wilful  ond  Corrupt  Pifjun/, 


lae  wAlkin^  when  yoa  stw 
wiiking^  Along. 
ee  eov  g^uif  ol  gypsies  about  the 
•  bwf— No,  I  did  not  see  any. 
^  waft  tlie  second  time  aher  the 
M  about  a  week  aiVer. 
teen  any  gypsies  witb  her  9X  any 

»oo  bare  recollected  the  person  of 
,  if  ti  bad  uot  been  Ibrlbtt  of  com- 
m  barn,  and  asking  tor  tobacco  ? — 
liad  not  seen  her  a  second  time,  I 
I  remembered  her  face. 
.  Were  yuu  iu  Newgale  to  see  ber? 
was  not. 

ta.     How  lon|7  is  New  Christmas 
Ise  Old  f^Keilog.  Eleven  days. 

Jckn  Frame  sworn* 

',    I  lit ed  with  'squire  Parsons,  and 
^  Alid  a  half;  but  1  am  out  of  place 

El.    Where  does  he  live  ? — Frame. 

James '•«* street,  Grosvenor- square, 

i  in  Turkey -street,  Eutield,  in  the 

nd  I  lived  with  bim  there  as  a  foot- 

mimer. 

lie  Ufiip  voo  iiere  there,  did  you  see 

thtfre  P^Yes,  Sir 
liifik  yoti  should  know  her  now  f— 
ia,  I  am  sure  (pointing  to  her.) 
id  you  Brst  see  her? — On  the  11th 
was  twelfemontb. 
Id  you  see  her  ? — I  was  at  work  in 
kfdeo,  and  she  came  and  talked  wttb 
b  the  palisadoes,  pretending  to  tell 


you  to  think  it  was  the  11th  r»f 
hBrcaoae  my  master  and  mistress 
ro  on  the  Qih  of  January,  and  this 
*  i»y  went, 
the  conversation  as  well  as  you  can. 
a  (rre^t  many  thiojj^s  to  me.     She 
htilc!  thought  of  coming  into  that 
;  and  she  wanted  me  to  give  her 
;  r    1   gnve   hi-r  three- half-pence  ; 
I  not  tell  me  what  she  would  have 
I  had  ijiven  Iter  more.     When  1 
e  ihrrr-hali*}>encr,  she  bid  me  put  it 
>«  and  pot  It  through  the  pales.    She 
'*ut  away. 
_jght  vou  converse  with  her  at 
m*ght  i>e  four  or  live  minutes. 
ir  fortune  g*M>d  or  bad  ?— She  told 
ba  ffoo*!  ftirtune. 
•ore  this  u  the  woman  ?^  am 

e^rr  aee  lier  Wfore?— f  had  seen 
I  v«»ar  lipfnre :    I   liveil  then   at  one 
r<M!k^c  at   Erfieid  Clay* hill;  he  \h 
_l  had  then  but  very   httlu  talk 
waa  at  dintier,  and  I  could 

•  at  any  oiher  time  ?— 

r.  i«fher:  I  mw  her  two 

tt<:twa^n  thai  and  seeing  her  to 


Are  yoo  sore  the  woman  yon  saw  at  Mr 
Woodcock^,  \B  the  same  woman  that  lold  you 
your  fortune  at  Mr.  Parsons' s  ? — I  am  very 
sure  of  it. 

And  are  you  sure  this  is  the  same  womafip 
that  is  here  ? — I  am  very  sure  of  it :  I  saw  her 
aeveral  times  after  the  time  I  mentioned,  but 
not  to  take  notice  of  her,  any  farther  than  see- 
ing her  walking  in  the  street:  I  knew  »he  was 
in  that  part  of  the  country  from  that  time,  to 
the  time  she  was  taken  up. 

You  say  you  saw  her  in  Newgate  ?'—• 1  did. 

Were  you  certain  of  her  ihen  ?-- 1  was  very 
certain,  and  I  am  sure  this  is  the  same  now. 

Were  you  before  the  grand  jury  ? — f  was. 

How  long  h  that  ago  ? — I  can*t  tell ;  it  waa 
about  ibis  time  twelvemonth,  I  think. 

Did  you  t(ive  the  same  account  before  the 
graod  jury,  as  you  have  now  ? — I  did. 

Was  tliat  true? — It  was,  and  so  is  this. 

Cross-examined  by  Mr.  WilUu 

Were  there  any  other  gypsies  with  her? — 
No,  Sir. 

When  you  snw  her  about  a  twelvemonth 
before,  were  riiere  any  others  with  her  ? — Wo, 
none  as  J  saw  ;  she  then  only  just  opened  the 
gate. 

Wa^  she  in  company  with  any  others  in 
Newgiite,  or  shewed  by  herself? — By 'herself. 

Hr>w  long  had  your  master  and  mistress 
been  down  at  that  time  f — I  cannot  tell ;  tbej 
were  up  and  down  very  often. 

tf  they  have  been  up  and  down  very  oftetl, 
liow  can  you  fix  upon  their  going  m^  this  tim*, 
more  than  any  other  ? — ^By  reason  my  master 
and  mistress  gave  me  and  my  fellow -servant 
leave  to  go  out  on  the  1st  of  JanuBry. 

Had  not  your  master  and  mistress  been  tn 
town  between  the  Ist  of  January  and  the  ^th  f 
—Yes,  they  had. 

Have  you  reason  to  believe  it,  because  your 
master  and  mistress  were  down  at  Christmaa  f 
—Yes,  Sir. 

How  long  had  they  been  there  at  that  time  P 
— ]  believe  a  month  ;  and  I  am  sore  they  gave 
me  leave  to  go  out  on  the  Ist  of  January. 

Kicorder,  How  was  the  gypsey  dressed  f*— 
Frame,  She  had  a  reddish  sort  uf  a  gown  on, 
I  think,  to  the  best  of  nvy  rpmemhranee. 

Mr.  Just.  €liv€>  What  other  clothes  ?— 
,  Frayne.  A  lightish -coloured  dosk. 

Mr.  Just.  Ciive,  Do  you  know  Mary  Jewel f 
— Frame,  She  saw  her  someihiug  before  me 
the  same  day ;  her  fortune  was  told  her  ;  she 
gave  her  some boilefl  beef:  she  ts  gone  awaj 
from  thence. 

Joseph  Gouid  Bwom, 

Mr.  Nara.  Where  do  you  live  P^ — /.  Could. 
1  live  in  Turkey 'Street,  in  the  parish  of  E^ 
field  :  1  am  a  day- labouring'  man. 

How  long  have  you  lived  there  f — Thirty^ 
seven  years* 

Tell  me  whether  you  know  Mary  Squtraif 
— That  is  the  woman  that  ^ita  there. 

Are  you  iun»  of  it  ?— 1  am. 


559] 


27  GEORGE  II. 


When  (lid  you  first  see  her  P-«^To  ili«  Wft  of 
my  knowledge,  it  wag  the  8tb  or  9di  of  Janu- 
ary 17^3,  that  if,  a  yoir  ago  last  January. 

Where  did  you  aee  her  ? — 1  saw  her  in  a 
walk  we  call  Trotts-Walk,  leadipg  up  lo  Bolls- 
Cro98f  about  a  quarter  of  a  mile  from  Mra. 
Welb'a  house,  or  soknethiog  better. 

Had  you  any  conforaation  with  her?— -No: 
I  took  notice  of  her }  I  thought  f  ner er  mm 
•uch  a  woman  in  my  lift  beiore  for  features. 

Had  you  heard  mother  Welki  bad  gypsies 
MIged  at  her  bouse  P— I  ba4 

Did  ?ou  se«  b«r  aiWr  thai?- Yeii  I  saw  her 
twice  aKerwanla- 

Aboi^  what  time  ?— As  oi^h  as  I  can  guess, 
l^ut  eight  Of  nine  days  hetore  sbe  was  taken 
up ;  anfTanotlier  4sM,  absAt  four  or  it e  di^s 
before  f  be  waa  taken  up. 

Are  you  sure  the  prisoner  is  the  s%me  ptison 
you  saw  ^u  the  8tb  or  9tb  of  January » and  the 
other  tim^s  after  that  ?— I  am,  Sir. 

By  what  do  you  remember  the  time  ?--Mr. 
Parsons  and  his  hidy  went  to  town  on  the  9th, 
(I  live  next  door  to  him)  and  my  wife  was  at 
work  there  on  the  Monday. 

What  day  of  the  week  was  the  9tb  ?— It  was 
nn  a  Tuesday ;  1  knew  of  their  goiog. 

By  what  did  you  know  of  that  ?--lt  was  the 
time  they  went  awav  after  Cbri«imas. 

Did  you  see  the  old  woman  ii^  Newgate  after 
this  r-l  did. 

Was  she  shewed  you^  or  did  you  find  her 
out? -She  was  aboved  me :  there  wero  a  great 
ipany  people  in  the  room ;  abe  was  by  the  ire- 
aide. 

Do  vou  mean  any  body  pointed  at  her,  and 
aaid,  that  wa^  the  woman  ?—No,  Sir ;  on  the 
first  sight,  at  coming  into  the  room*  I  ktmw 
her  again,  without  being  toM. 

Are  you  sure  Uie  womao  you  saw  in  New- 
gate,  is  the  same  you  see  now  ?-Yes,  Sir. 

Cross-examined  by  Mr.  IVillcs, 

How  far  were  you  off  from  her  when  you 
saw  ber  on  thn  Slh  or  9th  of  January  ?»Close 
by  her. 

Was  it  the  i^me  day  that  Rlr.  and  Airs.  Par- 
sous  went  to  town  ?-I  cannot  tell  whether  it 
isas  the  same  day  or  no. 

Was  any  body  with  h«r  at  that  tinue?— No, 
Sk. 

Had  ycu  any  conTersation  with  her  ?— No, 
Hiiir. 

When  was  you  told  that  mother  Wells  had 

St  gypsies  lodged  at  her  house?- -That  was 
fore  I  saw  Uw  the  first  tin»e. 
Who  told  you  8oP--To  the  best  of  my  re- 
membrance, Virtue  Hall  did:  )  heard  her  tell 
other  people  so. 
Wbal  day  was  this  7—1  cannot  tell  the  ?ery 

\Vhen  did  you  ftsst  recollect  this  of  Mr. 
PsffWHis's  going  lo  town,  in  order  to  assist  your 
ipemory  ?-  -After  I  had  seen  the  o)d  gypsey  in 

When  ynu  sew  her  tliere,  were  there  no 
ether  people  in  thafcpari  oi  the  room  bul  her  .^ 


Trial  qfEKzabelh  Ctmnutgf 

•-Vlien  n^  word,  I  don't  ramemhertber 
any,  besides  the  people  that  went  with  0 
When  you  saw  her,  four  cir  five  days 
she  was  taken  up,  were  there  any  hei^ 
her  then  ?  -  Sbe  came  into  a  publio  nooss 
I  was. 

By  lllr.  Justioa  CUv§. 

Where  did  vou  see  Virtue  Hall,  wb 
was  relating  this  ?  -At  a  place  called  tbi 
Bridges ;  mere  were  sereral  people  then 

Can  you  tell  any  of  their  names  P—  I  c 
then  they  told  me'that  person  was  Virtu 
and  tbpy  called  her  by  ber  name:  I( 
know  ber  before. 

Mr.  Willes,  How  long  was  thia  bii 
people  were  taken  upN-Goti(</.  Itwt 
time  before. 

Mr.  Just.  C/ins.  Did  yutt  use  the  bi 
mother  Wells?— Gou/^.  1  never  did  usi 
have  kept  a  farm  fifteen  years  next  dosi 

Mr.  Narcs,    What  is  the  Two  BrUlg 
house  of  that  name,  or  what  ?— Gonit 
is  in  the  street. 

Recorder,  How  was  the  gyptey  Aeai 
Gouid,  Upon  my  word,  I  catmotccftDol 
she  had  a  cloak,  and  a  hat  tied  ever  bar 
and  smoaking  a  pipe. 

Mr.  Just.  CHve,  Was  she  brisk  and  ni 
or  was  she  feeble  ?- -Gould.  No,  notbru' 

Mr.  Just.  Clive.  Was  vour  wife  wil 
when  you  saw  Virtue  Hallr-GonU.  Ni 

Mary  Gould  sworn. 

MaryGoukL  I  am  wiielotkelMlfii 
and  live  in  Tui key-street. 

Mr.  Naret.  Do  you  know  niasy  Squii 


3f.  Gould.  I  know  the  gypsey-^ 
not  know  her  name  when  1  saw  her. 

Look  about,  and  see  if  you  see  ber?- 
Sir,  there  she  sits;    1  am  sure  thai 
woman. 

When  did  you  sea  her  at  Enfiekl?- 
her  on  the  11th  or  19tli  of  January  17 
mv  door  in  Turkey-street:  1  sm  not  < 
wbich  day  of  the  two  ;  it  was  either 
Thursday  or  Friday,  1  am  sure. 

lo  what  manner  did  she  comef— <M 
was  bolted :  slie  called  at  it,  atid  I  opes 
she  asked  me,  it  i  kid  anv  china  to  oi« 
said,  No.  Sho  said  directly,  you  will  n 
ioo^r.  1  said.  Mistress,  I  bhall  not  gi< 
thing,  for  1  doa*t  want  to  heat  my  fortuc 
I  shut  the  door,  and  watched  her  out 
window,  and  saw  her  go  into  Mr  Harrii: 
Yard  and  out  again.  1  was  a  liitie  surpi 
U€r,  because  I  thou{>ht  she  was  a  very  Of 
woman^  1  saw  her  aooiher  time  befa 
was  taken  up,  and  that  was  as  I  i*ai  ni  v 
my  o(vn  window  ;  tlial  was  tlie  wnek 
she  was  taken  up:  she  asked  iiie,  it 
any  china  to.  mend  then  ?  ami  I  toJd  her 

Are  you  sure  it  was  the  same  peraa 
spoke  10  you  tliosetvo  times P^-laon  vet 

What  veasoo  have  you  to  think  the  fh 
the  Uth  or  l^tb  of  Jlanuery  7.*.Ar 
'squire  Parsons  went  to  town  on  tho'Ti 


J(}f  IVilfid  and  Corrufd  Peij^ 

___,  week.  1  «»«!  to  lie  tlierc^  aliuost  every 
d&y  :  [was  there  ou  tlie  iVlonday,  tiie  day  be-' 
f^ie  they  went,  which  was  tlie  9i\\, 

L  pDO  yonr  oath,  was  it  \n  that  week  Mr. 
Pai-«ons  wenl  to  town  ? — 1  mn  sure  it  was,  nud 
I  am  sure  ihii  here  is  the  name  woman* 

Did  yiiu  ever  «ee  her  beture  that  lime  F — I 
4ao*t  particiitarly  know  that  1  have. 

CroBs-eramioed  by  Mr.  WiUa. 

How  do  you  know  Mr.  Panons  went  to  town 
flp  the  £>th  f— ^Because  1  was  inacb  there:  I 
Has  there  on  New-yrar^$  <loy ;  they  were  to 
kifft  fone  QU  that  day,  but  madam  was  tiot 
?iry  weU»  »o  it  was  put  w^  till  Tuesday. 

Rtcorder,  lliil  you  know  VirJue  Hall  ? — 
Qould,  I  bad  seen  her,  but  I  bad  biit  little 
knowledcfe  of  \wf. 

Mr.  WiHct,  Were  yot)  ever  iQ  mother  VVellfi*» 
boufe  ? — M.  Gould'  I  have* 

Mr*  Wiltci.  Did  yoM  crer  see  the  dd  gyp- 
•ey  there  ? — M,  Gould,  No»  I  never  did » 

'Mr.  Just.  Clive,    Do  you  remeiuber  wlieu 

C'  Im^band  flaw  V^irtue  Hall  near  the  Two 
ge*  ? — Jlf.  Gould.  I  told  him,  I  had  beea 
^■iflitgbted  by  a  Kyp&ey ;  aud  he  made  ajaawer 
•iidsaid,  Virtue  HalJ  told  him,  ihtre  were  gyp- 
•iea  ai  m^^lFjer  Welk's  hou^. 

Mr.  JiiaL  CUv€.  How  was  she  dressed  when 
yoy  saw  her  ? — M.  Gould.  She  was  drea^d  in 
lti«  rery  Mame  dress  as  ahe  was  when  I  saw 
lliar  in  Ne%v^atc,  with  a  chiut  ubout  her  hea<t, 
lad  a  plaiu  cap  under  it  i  a  brown  liort  of  a 
gown,  i  cannot  tell  the  cubur  of  it,  but  it  wai 
tool  a  Knu^  colour  ;  it  was  a  yelbwisb  «nrt  uf  a 
gown;  ahe  was  in  a  very  ti^ht  sort  of  adre^e^ 
Coneidenog  her  trade. 

Htimphrei^  Holding  sworn* 

Mr.  Nares.  Where  do  you  live? — Halding* 

4*Te    in  Turkey -i»l reel,  and  have  theae  IH 

9»rs :  I  am  a  gardener. 

Do  you  know  Mary  Squires,  the  gypsey  ? — 
4la. 

Look  about,  and  see  if  you  cm  see  hen-*- 
Ittere  she  is. 

When  was  the  first  time  you  saw  her?— It 
on  lli€  8tli  of  January  1753. 

IV hy  do  you  think  it  wns  ou  that  day  ? — 
Because  a  gentleman,  whom  i  work  for,  eaiue 
^iKie  on  the  IHb. 

What  geutleriiaa  k  tbul  P— That  is  Mr.  Par- 
ions  :  the  gypsey  came  and  askett  nae,  jf  the 
Cuaily  was  gt  i»oine  ?  I  siaid,  Aye. 

Had  you  any  other  conversation  with  her  ?«-- 
No,  1  had  not. 

|>id  you  see  her  any  other  time  aAer  this  ? 
— *I  saw  her  ou  the  11th  of  January,  that  was 
on  a  Thursday,  in  the  iciine  week ;  then  J  was 
uaihne  up  vines  for  Dr.  Harrington. 

What  conversation  passed  ?*— She  a^ked  iije» 
if  there  was  any  china  to  mend  ?  1  told  her  to 
ask  at  the  door.  She  asked  at  the  door,  and 
Batnebody  said,  No ;  I  cannot  say  who,  hut  1 
l^eard  tlie  words  very  plain  i  I  was  then  at  the 
ffid  of  the  house. 

Bv  what  do  yoa  rememb^  this  to  be  the 
i  OL,  XIX. 


dmy  ? — I  remember  it,  because  I  w(ifi  not  paii 
lur  that  work^Bud  it  was  set  dowu  iu  my  huok^^l 

Did  you  see  hiir  after  thisT — i  law  her  sgatQi^l 
when  she  was  carried  away  to  justice  Tusli-  { 
maker  ^s. 

Arc  yon  sure  this  is  the  same  woman  yoit 
saw  before  r-*lt  is  the  very  same  womaut 
nm  certain  of  it ;    1  could  pick  her  out  of  n  J 
thousand. 

Cross -ejfttroined  by  Mr.  WUtes, 

What  did  you  set  that  work  dowtiin?-<fq 

my  pocket' book < 

How  came  you  not  to  brin{r  your  book  hej*e^ 
— 1  had  not  presence  of  raind  to  bring  it  witl%| 
oie. 

Did  you  work  for  'squire  Parsons  then  ?- 
NOf  1  (ltd  not,  because  he  had  hired  a  person  iq 
ihe  house. 

Are  you  sure  Mr.  Parsons  went  away  on  tiM 
9tb  i' — 1  live,  as  it  were,  pu  the  spot ;    1  kuoWl 
he  went  away  ou  the  morrov;  after  1  saw  her*- 

How  bmg  might  ihegypsey  be  in  oskin0f| 
thos«  questions  ?— ^»he  wa!!»  nui  lon^  with  me. 

Mow  near  mi^^ht  you  be  to  her,  when  you 
Mikn  nailing  up  the  vines,  on  the  lllli  ? — About 
bntf  the  length  oj*  this  court. 

Was  therii  any  fence  parted  you  P— No. 
fiiine  but  the  gatt*,  and  I  believe  that  was  open. 

Before  that  time  had  you  heard  of  any  other 
Lfypiiiifs  being  ut  muilier  WcUs')»? — As  to  that, 
i'cauunt  say,  for  I  never  was  at  mother  Wells'i 
iu  my  life. 

Was  there  any  body  with  her  then? — No 
ihtre  were  not. 

How  long  bad  'sf^uire  Parsons  been  In  tbt 
country  that  Chiisimasi^— i  douH  know  ;  but 
I  know  when  he  came  out  of  the  cuuntry. 

How  come  you  to  remember  the  dtiy  of  go- 
ing out  of  the  country,  better  than  when  they 
went  down? — I4y  reason  they  are  very  good 
to  the  poor  |jeaple  when  tliey  are  in  tiie  country. 

Are  you  used  to  work  for  Ur,  Harrington  f 
What  IS  his  method  of  paying?— Be  payi 
fiometimes  iu  a  quarter  of  a  year,  and  some* 
times  iu  half  a  year» 

DonH  he  pay  you  tlie  day  you  do  his  workf 
*"He  very  seldocn  iloea  i  aud  if  I  am  not,  i 
book  it. 

How  f^me  you  to  remember  this  particular 
minute  of  the  lllb^  more  than  any  other  on- 
nute  f  Was  this  any  uncommon  thing  ? — 
No,  it  id  what  1  did  always,  when  1  was  not 
paid. 

W^ere  you  ever  examined  upon  oath  befort  ? 
— Yes  ;  but  1  could  not  fully  give  an  account, 
because  then  1  could  not  resolve  myself  of  the 
time. 

How  long  after  this  time  did  yon  work  for 
Dr.  Harrington  ?— Not  Ipr  a  cousiderabla 
time. 

Did  you  work  there  the  next  day  ^  or  the  day 
belore?^ — No,  1  did  not. 

How  many  mouths  aHerJhis  time  was  tt 
llmt  you  was  examined,  and  could  not  recol- 
lect yourself? — 1  cannot jusUy  »ay  how  iiiDgit 
was  al\er. 

2Q 


563] 


27  GEORGE  IL 


Cannot  yoa  tell  the  dajr  of  the  month  yoa 
was  examined  at  the  Mannon-houfle  f— 1  can- 
not- tell  the  month,  if  I  was  to  die. 

Were  you  efer  examined  upon  oath  any 
where  else?— I  was  at  the  Fleece  in  Edmon- 
ton, by  the  justices. 

Can  yon  remember  the  day  yon  was  exa- 
mined there  ? — I  cannot. 

Had  you  any  friend  with  yon,  when  yoa 
was  at  the  Mansion  -house  ?— i  had  a  scrub- 
lawyer  with  me,  and,  1  beliere,  there  are  a 
great  many  of  them  in  town. 

What  was  his  name  ?— The  man  is  dead. 

In  what  way  do  you  make  your  minutes  in 
your  book  ?-<-!  write  so  much  per  day. 

Tell  us  the  little  line  yon  made  on  the  11th 
of  January  ? — I  put  down  the  day  of  the 
month,  so  much  per  day  ;  that  is,  my  wife 
puts  it  down,  as  soon  as  I  ccme  home  :  1  can 
read,  but  I  cannot  write. 

Were  there  any  other  persons  with  you 
when  you  was  examined  at  the  Mansion- 
house?— There  were,  may-be,  half  a  dozen. 

^    By  Mr.  Nares,    - 

Upon  your  oath,  was  it  the  11th  of  January 
you  worked  for  Dr.  Harrington? — Upou  my 
•ath,  it  was  put  down  tliat  very  night. 

Does  your  wife  always  set  down  your  work 
in  the  book  .^— She  always  does. 

When  you  were  examined  before  my  lord- 
mayor  at  the  Mansion-house,  had  you  seen 
your  book  to  refresh  your  memory  r— I  told 
them  there,  1  could  not  recollect  it  till  I  saw 
my  book. 

Were  you  desired  to  recollect,  the  day  you 
f»as  examined  before  my  lord-  mayor  ? — No. 

Nor  before  the  commissioners  neither? — 
No,  fcJir. 

By  Ml*.  Baron  Legge. 

When  yon  could  not  recollect  that,  for  ivant 
^f  your  book,  al  that  time,  how  came  you  not 
to  bring  it  now  ?— Upon  my  oath,  J^had  no 
presence  of  mind  to  bring  it :  I  did  not  know  it 
would  be  looked  into. 

Do  you  remember  how  this  woman  was 
dressed,  when  you  saw  her? — I  cannot  say 
as  to  particulars;  she  was  dressed  ?ery 
poorly. 

Give  the  best  account  you  can. — She  had  a 
hat  on  her  head,  and  a  sort  of  a  darkish  yel- 
lowish gown ;  but  as  to  her  face,  1  know  it 
from  five  thousand. 

What  sort  of  a  hat  ?— A  straw  hat. 

Mr.  Just.  dive.  Was  it  a  straw  hat  or  a  bon- 
net ? — HMing,  I  cannot  say  which. 

By31r.  Baronlc^gtf. 

Was  it  a  blacker  white  one?— Blackish  it 
looked  to  be. 

How  near  was  you  to  her  ?— As  near  as  I 
am  to  your  honour. 

Had* she  a  clonk  on  ?— She  had  a  short  one, 
but  I  cuunot  lell  the  colour . 

What  hort  of  health  did  she  appear  to  be  in  ? 
Did  she  appear   to  be  a  strong  or   wok 


Trial  ofEHzabeth  Canmng,  [564 

woman?-- She  did  not  appear  to  be  very 
strong. 

Did  yon  see  her  in  Newgate  afterwards?— 1 
did,  and  knew  her  again :  ihe  was'  sittiag  oa 
the  feet  of  the  bed. 

Were  there  any  other  women  with  bcr?— ( 
saw  none,  but  ns  that  went  from  EnfieU,  as  1 
remember.  We  were  admitted  in  by  order  «f 
sir  Richard  Glynn. 

Sarah  Vast  sworn. 

Sarah  Vass.  I  am  wife  to  Daniel  Van:  I 
live  at  Enfield,  in  Turkey-atreet. 

Mr.  Narei.  How  kmg  hare  yoa  lived  Iheicr 
— S.  Van,  Either  thirteen  or  fomieen  jeani' 
come  Michaelmas. 

Do  you  know  Mary  Sqnireo? — 1  do ;  thrtii 
the  vi^man  ^pointing  to  her). 

When  did  you  see  her? — 1  saw  her  oait 
11th  of  January  was  twelve-nsonth. 

Where  did  you  see  her  ?— At  my  own  I 

What  was  her  business  there?— She  cs 
tell  me  my  fortune  at  tliedoor. 

Did  she  tell  you  your  fortune? — ^No,  I  waold 
not  let  her. 

Did  you  see  her  at  any  other  tiiiier— Tei^ 
several  times. 

How  came  you  to  think  this  was  the  lith  of 
January  ?— I  can  give  you  a  good  reesaD  far  it : 
1  chare  at  's(|uire  Parsons's,  in  vraahieg  aad 
ironing :  they  took  coach  and  went  to  ] 
on  Tuesday  the  9lh  of  January,  andl  n 
home  directly  when  they  took  coach,  aodI«v 
the  gyi»sey  two  days  after  that. 

Are  von  sure  or  it  ? — I  am  certainly  sure  I 
did :  after  that  I  saw  her  several  timea. 

Did  she  ever  ask  you  to  tell  you  year  fk- 
tune  after  this  ?— Yes,  she  did  the  day  bcAit 
she  was  takf^n  up :  then  she  came  mto  Dj 
house ;  1  was  drinking  a  dish  of  tea  ;  shecasM 
in  and  sat  down  by  me,  and  asked  me  for  t 
pipe  of  tobacco ;  I  went  to  my  husband's  torn 
m  which  he  keeps  his  tobacco ;  she  took  hoM 
of  my  hand,  and  asked  me  to  tell  me  my  for* 
tune,  but  1  refused  her :  then  she  asked  mt 
for  a  dish  of  tea,  and  I  gave  her  two  diibci 
of  tea. 

How  long  did  she  stay  ? — I  believe  lbs 
might  stay  about  a  quarter  of  an  hour,  she 
asked  me.  What  gentleman's  house  that  wtf 
over  the  way  ?  1  said,  madam  Gibson's.  She 
asked  me,  whether  they  would  admit  her?  1 
told  her,  I  thought  they  would  not. 

Are  you  very  certain  that  is  the  same  woman 
you  saw  before,  on  the  11th  of  January  ? — I  am 
sure  she  is  the  same. 

Did  you  see  her  when  she  was  taken  np  ?— 
J  did  not,  but  I  saw  her  in  Newgate. 

Are  you  certain  this  woman  that  sits  here,  i« 
that  woman?— I  am  certain  that  is  the  Mmt 
woman,  I  am  positive  of  it. 

Cross-examined  by  Rlr.  Davy. 

Do  you  think  it  possible  for  any  peieoii. 
that  has  good  eyeaiahia  head,  to  mtitilk«  her 


Jhfit  WU/ul  and  Corrupt  Perjury 
af— Nd,  indeed,  I   sbould 


hire  you  se^n  ber  ?— Twice  at 
1  leTeral  other  times ;  I  saw  ber 

ickff  in  «  eht&dler's  shop. 

%X  name  was  the  called  f--She  went 
of  tbegyp«ey-vrt)maii* 

did  Uiey  say  ibe  Icnlged  f — At  mother 

bear  the  lod|fed  there  on  tbe  Uth 
ly  ? — No,  not  lil)  afterwards, 
ig'  afUrwardsP^ — k^  nigh  as  I  can 

I  three  or  four  dayii  after. 

I  at   home  wh^n  they  were  token 

that  lime  did  you  kiear  she  lodged 
Wclla»at  ?— Yes,  before  that. 
(Ill  you  where  she  lodged? — ^I  went 
L  and  enquired  of  the  woman  (her 
'Mra*  Dad  well)  who  she  was,  and 
lodgetl ;  they  said  at  moi  her  Wells's. 
lid  yon  bear  this? — As  nigh  as  I  can 
I  three  or  four  days,  or  a  week, 
ttnte  I  ever  saw  ber. 
I  anutre  Parsons?— Ue  is  a  gentle- 
look  a  country- bousei  and  be  was 

summer  to  and  fro  ;  now  be  lives 
lie  bud  lodginerB  in  town,  and  used  lo 
krdf  and  forwards  pretty  often  in  lUe 
,  io  the  winter   be  was  at  London 

Rdoes    be  ususlly  stay   in  tbe 
e  Ter}"*  seldom  comes  down   in 
Nnetioies,  may-bei  he'd  stay  a  month 


your  husband  work  for?— He 
fmnner  Yarrow,  and  has  a  good 

e  work  for  him  erery  day  of  tbe 
Hfi  doeii  except  it  bappeoa  to  be  a 

I  ^ftr  tee  the  gypsey  go  in  or  out  of 
laeP— No,  1  never  did. 
etcraee  any  budy  with  ber?— No^ 


that  young  man  or  woman 
George  and  Lucy  bquires)? — I  saw 
I  since  ibis. 

know  Fortune  Natiia  F — Yes, 
know  Virtue  Hall  f — 1  do. 
ever  see  tbeio  going  into  Welti's 
^o,  never, 
[ling  out? — No,  8ir- 
lull  and  hif  wife  lodge  at   mother 
-l  beard  afterwards  they  did,  but  not 

I  see  N&tuf  and  bis  wife  in  January  t 
know  that  I  did* 

tbe  December  before  ? — No,  Sir* 
yvben  did  you  see  them  ?— Since  the 
bburly. 
not  say,  yoti  saw  them  often  ? — 

bemre  that  time. 
et tr  see  Virtue  Hall^  before  sbe  was 
1  never  did. 

work  on  old  ChrtsUnaa^ay? 
it  to  work,  and  his  master  re- 


A.  D.  1754.  [5C6 

By  Mr.  Qaron  I^ggt. 

How  long  bftve  you  known  Nnlus  and  bit 
wife? — Now  1  know  ibem,  but  I  did  not  before 
this  thing  liappened. 

How  was  Mary  Squires  dressed? — She  was 
in  a  light-coloured  cloak,  a  heaver  bat,  and  a 
brick -coloured  gown. 

Anne  Johnton  sworn. 

A,  Johmon,  1  live  at  Enfield. 

Mr.  Nares,  How  long  have  you  lived  there  f 
— j4.  Johnson.  Going  on  lo  twenty -seven  yean. 

What  do  you  do  for  your  livini;? — I  spin 
for  my  living,  since  my  husband  died. 

What  was  bis  business? — Uc  used  to  sell 

Do  you  know  Mary  Squires  ?-*•!  do ;  I  saw 
ber  at  nny  door. 

Look  about,  and  see  if  you  tee  ber. — There 
she  site  (pointing  to  her):  I  am  sure  that 
is  she. 

When  did  you  first  see  ber  ?'-lt  was  at  my 
door,  January  was  a  twelve-munth. 

How  came  you  to  tbtnk  it  that  lime^  more 
iban  any  other  time?— 1  am  sure  of  it ;  it  wis 
tbe  18lh  of  January, 

How  do  you  know  it  ?— *By  carrying  home 
my  work  ;  I  carried  it  booae  two  days  before, 
which  was  tbe  16tb. 

Who  do  you  work  for  ? — 3Ir.  Smitberam  ; 
I  have  worked  for  him  many  poundsj. 

How  do  you  know  by  carrying  home  that 
work  in  particular?- -That  was  ll^e{in>t  I  car- 
ried home  iu  Ibe  new -year,  which  ia  tbe  reason 
1  remember  when  it  was. 

W^bere  did  you  see  Mary  Stpires  on  the  ISth 
of  January  ? — She  came  lo  my  door,  and 
asked  me,  if  1  bad  any  china  to  lueml  ?--!  told 
ber,  I  had  not.  Then  she  asked  me,  if  I  bad 
any  blue  and  white  ware  to  mend?  1  said,  I 
bad  none  1>ut  what  I  could  mend  myself.  Then 
she  asked  me  for  some  victuals. 

Was  she  alone?— Ves»  1  saw  nobody  with  her« 

Did  you  give  her  any  victuals  ?-^N0|  I 
did  not. 

Did  you  see  ber  any  time  after  this  ?-*1  saw 
her  twice  after  ;  she  was  four  times  at  my  door 
inalL 

Did  you  see  bcT  all  the  four  times?--!  saw 
her  three  of  them  ;  the  next  time  she  begged 
for  some  victuals,  and  to  light  ber  pipe ;  1  gave 
ber  no  Ttctuals. 

What,  the  next  time?- -She  asked  me  Ibe 
next  liiiie  to  let  ber  lijfht  her  pipe. 

Are  you  sure  this  is  the  same  person  ?— 1 
am  sure  it  is. 

How  soon  was  it  you  saw  her  after?- -This  was 
all  in  ten  or  eleven  days  ;  I  think,  the  last  time 
I  saw  her  was  two  days  before  she  was  takeo 
up  to  be  brought  away. 

Dill  you  see  ber  when  she  was  taken  up?-* 
No,  I  did  not. 

Did  you  see  her  ie  her  confinement  in  New- 
gale ?"  1  did. 

Did  you  know  her  then  ?**l  did,  and  1  en 


^  GEORGE  IL 

Cannot  you  tt?II  the  day  of  tbc  month  you 
WAseramiDed  at  the  IVliDiioQ-house?— 1  can- 
not tell  the  tnonth,  if  1  was  to  ilie. 

Were  you  ever  ejtamtned  upon  oath  any 
where  ebe? — I  was  at  the  Fleece  in  Edmon- 
ton,  by  the  justices. 

Can  you  remember  the  day  you  was  exa- 
mined there  ? — ^I  cannot. 

Hail  you  any  friend  witli  you,  when  you 
was  at  the  Mansion  house  ? — I  had  a  scruK* 
lawyer  witii  me,  and^  I  believe,  there  are  a 
(Teat  many  of  them  hi  town. 

What  was  his  name  7 — ^The  man  it  dead. 

lo  what  way  do  you  make  your  roioutes  io 
your  book  ?— I  write  so  much  per  day, 

Tel)  us  the  little  line  you  made  on  the  11th 
of  January  ?— 1  put  down  the  day  of  the 
month,  HO  much  |>er  day  ;  (hnt  is,  my  wife 
puta  it  down,  as  soon  as  I  c^^me  home  t  I  can 
reaiK  but  I  counot  write. 

Were  there  any  oilier  persons  with  you 
when  you  was  examineil  ut  ihe  I^Jauiitoii- 
douse? — There  were,  may-be,  half  a  do^n. 

.     By  Mr,  Nares*    - 

Upon  your  oath,  was  it  the  llth  of  January  l- 
you  worked  for  Dr.  ll^^rringlonF— Upou  my,/ 
aath,  it  was  put  down  tljat  very  uf^ht. 


mayor  at  the  Mansion-house, 
your  book  to  refresh  your  mc 
thejii  there,  1  coold  uol  reco)l< 
my  book. 

Were  you  dc&ircd  l«  rcc»  : 
was  e\amiue<l  befure  my  toril  i.. 

Nnr  befoi'c  the  oommiiwioo 
?^o,  8ir. 

By  Mr.  Baron  /        ,. ^  ir 

wotild  be  lo*  t^  •*  *  fortnight  ?— 

Do  you    I  ^f  o»er  or  under : 

dressed,  whm  j>^      ,    ^    J^^  i hat  either  way. 
iv  'i  i^.  rotir  d«^'«"  for  ? — 8he 


iheih  CM^H 
be  did    not  ^ 


Trial  ofEihabm 

woman  ?-«-She 
strong'. 

Did  you  see  her  in  Nc«^ 
did,  and  knew  her  agaivf 
the  feet  of  the  bed. 

Were  there  any  other  J 
saw  none,  but  us  thai  It^ 
remember.     Wc  wcte 
sir  Richard  Glynn. 

iyurah  ^ 

Sarah  Vass,    I    ' 
1i?e  at  EnlleUl,  \i* 

Mr.Narts.  ¥'/    ;r- 

come Michap'/  ,\^^ 

Do  you  k  ^ 
the  woinaf  ^  km  ^ 

When   4JI  TA 

inbuf    nl  5p1 


^t- 

fort- 


jiA,  Sir. 


When  you  couhl  not  re* 
vf  your  iKiok,  al  that  liti* 


vi  y< 

u%  \\\\\\^  it  1 1 

presence  of .. 


as    to   particttU'^^^^J^jotir 


poorly 
Gift 
bat  on 
towish  gow 
from  (ife  I* 


^•v';>" 


I  Tt)M  her,  1  had 
li^'V  were  told, 
t   herf— I  did; 
aaw 


next 


ihen  I  wiscer- 


look 
I 


r., . 


'    l^^aame  person. 

']!^«iift  tore  this  is  the  same 

f  iiPf  *^^' 

. ,.  %  iiti  IO  think  it  was  about 

it?--lkcftu*e  I  had 
,1  UJ  mv  bouse:   I  had 

,^pariih  about  half  a  mile  fur- 
to  t^  fainue  f*^  It 


-^Ba$9et,  Iti-  ^  ^  ^ 
at  Enfield,  and  ^^^ 
years.  ^m^mi 

Do  yon  know-  T^^  ^ 
seen  her  twice*  ^M 

Look  about  tti^  V 
hen^Tliat  is  she  Tl 

W  hen  did  you  g^  ^Jj 
to  my  house,  and  ^*'" 
pipe,  and  I  fave  h^**    * 

When  was  tbiar" 
2^6  of  January  was 

What  do  you  rc^ 
cause  1  killed  a  hogr 
New  Clwisttnas,  an  J 
that  lired  with  me    t^^lij 
dav  month  I  «aw  the  gQrf 

What  do  you  comfy !« 
take  the  account  ilmy  by 
the  ho^. 

Whatdayofthewee'kif^ 
— Il  was  of  a  Monday,  to  i 
very  Oeitam  of. 

Had  ynu  any  ixmf 
Squires  .'—She  cume  anth 
cam*"  *"  ""r*  -■  ♦ 

br^an  to  tril  me, 
lifcordfT,     An 
Banel.     |  am  ; 
belongs  t«>  won> 


I 


ftiT  IViifid  and  Corrupt  Perjury. 
By  Mr.  Naret. 


A.  D,  1754. 


[570 


Then  she  ofl€!reJ  to  tell  yoii;  you  did  uot 
iffer  it  ?— 1  Ji4  not :  Bhe  saitl>  if  1  'would  croBs 

r  hand  witl*  a  jieuny,  she  would  tell  me  i»y 

"tnne. 

Upon  my  word,  that  is  cheaper  than  she  Tias 

n^  to  any  body  el«e  as  we  have  heard  of: 
Id  the  tf  11  yuu  ytnir  fortime  ?— 1  had  a  littte 
HTher  oonflense. 

Was  it  gtiod  or  bad  ?— I  don't  know ;  1  can- 

it  say  for  that. 

How  long-  was  «he  about  tdling  your  for- 

ne>  and  lightiog  her  pipe  ?— I  ear\H  tell  the 
ktict  time  r  I  gave  her  some  tes,  a»d  Itt  her 
itt  down  nod  warm  h?rai;lf. 

Did  ymi  take  so  raut^h  notice  of  her  at  to 
her  again  ? — 1  did  ;  and  this  is  the  wo- 

m\. 

Did  yon  see  her  aftpi"  thiR  ? — I  saw  her  in 
^ewtnit^^i  and  told  her  the  same  that  1  do  now  ; 

od  she  ^aid,  What  Bi^ntlies  that,  did  1  wrong 

IM  of  any  things  ? 

Did  you  sny  to  her,  what  time  you  saw*  her 

t your  house? — Yes,  1  did;  and   h\w  said  it 

^  DOi  the  ri^^ht  time:  but  1  said  it  was,  And 

stood  to  that  lime. 

Are  you  sure  it  was  thai  day  f — It  was  that 
bj  judeed« 

Cross-examined  by  Mr,  Willa. 

Is  that  the  only  reason  you  have  to  remetn 


'  it,  becaiTse  you  killed  a  hog  on  the  day  you  |  seen  him. 


hou8«,  and  ask  lea? e  there ;  she  went  up  to 

the  door. 

Did  you  hear  her  ask  lea?6  ? — No,  I  did  not 
hear  her,  but  »he  lay  there. 

How  tojig'  did  she  continue  there  ?^*^Thre« 
days  ;  she  went  away  on  the  Sunday* 

Did  you  see  her  io  the  lioie?—!  did  several 
limes. 

What  day  of  the  month  did  she  come  there  f 
-^To  the  beslofmy  rememhraocefl  cannot  be 
positive  no  longer  than  as  to  the  house  I  lived 
in ;  I  went  out  of  it  three  days  before  New 
Chrifitmas),  it  was  before  I  went  out  of  the 
house  to  go  Io  Clteshunt,  where  I  now  live: 
but  \  cannot  recollect  any  day  of  the  month. 

Are  you  sure  it  wis  befoie  you  weot  to  jour 
new  house?— I  am  seosibte  it  was. 

Had  you  ever  any  conversation  with  her? — 
I  cauH  say  but  1  had. 

Were  Ihett  any  other  personi  with  her?— > 
There  were  a  man  and  two  woman  kind^  one  a 
youoff  girl- like,  and  ibe  otiier  may  be  thirty, 
and  belier. 

Recorder.  Were  there  any  children  f— 
Fratt.  I  can't  tell. 

By  Mr.  Naret, 

Can  you  tefl  the  time  of  the  day  you  had 
this  conversaiion  F — It  was  on  a  Friday,  some 
time  of  the  day,  but  can't  tell  the  hour :  she 
compltiiiied  that  she  lost  a  horse,  a  little  ponoy, 
and  ai»k<?d  me,  whether  [  saw  it.^  but  i  had  not 


eotioti  ?^ — That  is  the  only  reason. 

In  what  manuer  was  you  introduced  into  her 
frnence  in  Newgate,  and  how  was  she  sitting? 
"-^e  was  silting  smoaking  her  pipe  by  Ibe 
Ire-side. 

JUcor^tr,     Was  it  a  mouth  before  you  saw 

f  at  your  house^  that  you  killed  a  hi>g,  or 
iot  ? —  Bntset,  I  killed  my  bog  on  tl»e  Thurs- 
iajp  before  New  Chrislmas,  and  that  day  my 
iervaut  weol  to  ber  place ;  and  E  saw  the  gyp- 
ley,  a  month  alter  1  killed  my  bog,  at  my 
liouse. 

Mr,  Willti.  Was  she  alone,  or  m  company, 
you  saw  her  in  Newgate? — Bnuet, 
e  were  a  great  many  people  with  her,  her 
t^ro  daug-hiers,  and  ^ei^eral  people  that  were 
ftrrieil  tip  to  see  if  they  kuew  her  or  Dot. 

Kccordcr,  Are  you  sure  she  tdd  you  it  was 
Dot  right,  when  you  mentioned  the  day  ? — 
hauet.  1  am. 

Jitmu  Fmtl  sworn. 

I      Pratt.     I  live  Bit  Chrshimt,  about  two  iBlles 
|lr«m  Eoa^M;  but  f  did  live  at  Etiiield. 

I     Mr.  Nares.     Wh^i  are  you? — Pratt,  1  am 
i.<rfhiy  Iflbofwing  man. 
Have  you  seen  Mary  Squires? — Yes,  6tr« 
Louk  about,  aofl  see  it  you  can  see  her.*^ 
'  Ve«,  lb*l  is  she  (iii/mting  to  her) 
\     When  was  the  fin»i  time  you  saw  her  P—The 
l#f»ftime  I  isaw  her   was'iu  Wdliam  Nmtth*s 
LipW'hon^e^  on  uThumday.     When  slie  came 
phere,  she  asked  me  leave  to  he  there  (J  work 
has  a  day- nan)  J  I  ioh2  il/cr  Io  go  to  tlie 


Did  she  any  otherwise  descrjl>e  the  horse 
but  by  a  litil*:  one?— Yes,  she  did  ;  but  I  have 
forgot:  I  remember  she  said,  he  had  a  clog 
on,  and  that  h'^r  nanie  was  on  the  clog. 

Did  she  tell  you,  upon  your  oath»  what  her 
name  wasP — Yes,  she  dia;  but  I  did  not  Udce 
much  notice  of  it. 

Should  yon  know  it  when  you  hear  ilf — I 
believe  1  5<houId ;  1  think  she  said  her  name 
was  Mary  Squires,  and  that  that  name  was  oti 
the  clog. 

Had  you  any  other  con versntion  with  her?— 
Yes ;  on  the  same  day  she  told  me  it  was  her 
belief  I  was  the  man  that  had  the  horse. 

Why  did  she  say  so?*— Because  I  worked  in 
the  yard,  and  the  horse  was  missing,  and  I 
hap|)ened  to  speak  a  word  to  the  man  that  was 
with  hen  I  asiked  fliim,  what  he  would  giva 
me  to  help  him  to  his  horse  again?  so  be  weot 
and  told  her  directly* 

Do  you  think  you  should  know  that  man?"- 
f  can't  be  positive. 

Look  about,  and  see  if  you  see  any  body 
like  him. 

(He  looks  round  ;  and  as  his  e3'e  passed  over 
George  Squires  backwards  and  forwards, 
George  held  down  his  bead.) 

A  Juryman,  I  see  George  hold  bis  face 
down,  as  the  witness  loaks  towards  him, 

M  r .  Davy .  G  eofge,  'when  witnesses  are  or* 
dered  to  took  for  yon,  Ikold  op  yowr  head  ;  I 
myself  saw  you  tliia  tiinc^  it  does  not  look 
well. 


B71J 


27  GEOBGE  11. 


Prmit.  It  11  bard  tayb^,  I  will  notfwetr 
io  that. 

Mr.  Nareg,  Bad  jou  any  other  talk  with 
her?— Pro/^  Yes,  8ir.  >Uter  she  told  me 
aboot  haTtn^  the  horse,  she  said,  she  had  got 
M  wery  ^pood  friend  not  far  off,  and  she  would 
fpo  to  him,  and  if  she  wanted  a  guinea  or  two, 
she  could  have  it;  and  she  would  go  to  the 
cunning  man,  and  would  hare  the  horse,  if 
1m  was  abore  ground. 

How  came  she  to  talk  of  going  to  a  cunning 
nan,  when  she  would  be  looked  upon  to  Iw 
a  cunning  woman  hersdf  ? — 1  doo't  know  that. 

Did  SM  ever  undertake  to  tell  you  your  for- 
tune?—No,  she  did  not 

Upon  your  oath,  is  this  the  woman  you  saw 
at  that  time?— UpOB  my  oath,  that  is  the  wo- 
man, that  is  the  woman. 

Did  you  ever  see  her  aAcr  that,  belorr  you 
law  her  in  Newgate  ?— No.  When  1  saw  her 
in  Newgate,  1  was  turned  up  stairs ;  the  door 
was  opened ;  there  ware  sereral  people  at  the 
door ;  they  bade  me  look  in ;  I  knew  her  im- 
mediatelf,  the  very  same  moment;  1  said. 
That  is  the  woman  that  I  came  after. 

Cross-examined  by  Mr.  Davy. 

Was  there  any  other  woman  in  Newgate 
but  her  f — Not  that  1  saw :  1  said,  That  is  the 
woman,,  and  so  it  was,  certainly. 

Were  there  other  people  at  EnBeld  with  her, 
when  you  saw  her  there?— There  were. 

Were  any  of  them  like  her  in  the  face  ? — 
No,  none  or  them. 

Something  like  her  ? — No. 

Were  you  ever  in  a  court  of  jui»tice  before  ? 
—No. 

Were  you  ever  upon  vour  oath  before  ? — No, 
Sir. 

Will  you  venture  to  say,  as  you  are  upon 
y  oar  oath,  that  this  is  the  woman,  and  no  other, 
and  j^'ou  are  not  mistaken? — Upon  my  oath, 
this  is  the  woman,  1  am  positive  in  my  con- 
science, and  I  am  sure  that  was  no  other  wo- 
man ;  this  is  the  woman  I  saw  at  that  blessed 
time. 

Did  vou  ever  see  a  woman  like  her  in  your 
life  ? — No,  never  in  my  days. 

llow  came  she  to  tell  you  her  name  was 
upon  the  clog? — Because  she  had  lost  the 
horse ;  and  she  desired  me,  if  I  should  see  the 
horse,  or  find  the  clog,  to  let  her  know  ;  and 
told  me,  her  name  was  Blary  Squires,  and  that 
it  was  upoR  the  clog. 

Do  you  know  how  large  the  clog  was? — No, 
1  never  saw  it. 

Do  you  remember  she  told  you  the  name 
was  Mary  Squires  ? — I  am  certam  of  it. 

Waa  it  not  Sarah  ? — I  am  sure  it  was  Mary 
Squires. 

Lydia  Farraway  sworn. 

Mr.  Naret.  Where  do  you  live  ? — L,  Farro- 
way.  I  live  at  Eniield-Wash,  with  Mr.  Howard. 

How  long  have  you  lived  there  ? — I  came 
tiiere  on  the  1st  of  Auguat  was  twelve- month, 
and  lived  with  Ihtoi  a  year  imd  a  quarter,  and 
upwards. 


Trial  of  Elizabeth  Cmmag, 

Were  you  there  on  ChiiilBias  wm  i 
month? — J  was. 

Tell  us,  as  near  as  ya«  eaa,  wImb  3 
saw  the  gypoey.— 1  saw  her  BMie  tlnai 
twice. 

TeO  us  the  first  time.—!  will,  as  mm 
can ;  but  I  must  begin  with  aaolbcr  ii 
the  first:  as  I  waa  going  with  oij 
oaaster  to  school  aboot  the  latter  part  d 
ary  was  twelveniiooth,  1  saw  her  at  a 
man's  house,  talking  to  the  maid  ;  toaa 
day  of  the  month,  I  cannot. 

Do  you  know  when  the  gynaey-WMi 
taken  up?— That  waa  on  a  Thoradaj 
best  of  my  remembrance;  and  the! 
waa  se'nn&fat  before  I  saw  her. 


nn^t 

Name  the  gentleman*a  name  that  U 
that  house.— ft  waa  Mr.  Madtboose'a'al 
just  OB  this  side  the  Bell. 

Did  you  see  her  before  that? — I  a 
once  or  twice  before ;  but  how  loni^  h 
can'i  say. 

Are  you  positive  you  saw  her  onee  i 
before? — ^Upon  my  oath,  I  am  posiliffe 
her  once  or  twice  before. 

Look  about  the  court,  and  tell  om  if  y 
her  tLoy  where  here. — That  b  the  w« 
am  positive  to  her  (pointing  to  her). 

Did  you  see  her  after  that  ?—l  did  ; 
her  get  mto  the  cart  when  she  was  carried 
and  I  saw  her  after  that  in  Newgate. 

Did  you  think  that  waa  the  aaae  u 
when  you  saw  her  get  into  the  ca 
did  ;  she  was  the  first  woman  that  got  i 
cart. 

Are  you  sure  the  time  you  mention  y* 
her  talking  to  a  msid-servaot,  was  in  Jai 
— ft  was,  I  am  sure. 

Are  you  sure  that  woman  is  the  same 
you  saw  in  the  cart  ? — I  am  sure  of  it. 

Was  that  the  same  person  which  you 
Newgate  ? — It  was ;  and  this  is  the  } 
sitting  here. 

How  came  you  to  fix  upon  the  Tueadi 
se'nnigbt  before  she  was  taken  up? — B 
I  bad  been  making  some  pyes  again 

JounjiT  master's  birth-day,  which  was  the ; 
anuary  ;   and  we  made  them  before  tin 
that  they  might  be  cold,  to  be  heated  ag] 
,  Did  they  come  to  your  master's  pump 
One  of  the  daughters  did ;    1  saw  her 
two  or  three  times. 

About  what  time.^ — About  the  time 
her  mother. 

Are  you  the  person  that  went  and  tol 
mistress,  that  the  gypsey-girl  was  in  the 
—I  am,  Sir;  and  my  mistress  went  to  tl 
lour  window  to  see  her. 

What  day  of  the  month  was  this  ?— ! 
tell  that,  nor  1  can't  tell  the  week. 

Cross-examined  by  Mr.  WilUt. 

Are  you  sure  your  young  master'a  bir 
is  00  the  39th  of^^January  ? — I  am  sure : 


What  pies  were  you  making  ? — ^BUbo 
Why  did  you  inake  them  an  lea|^ 
kand?— 1  made  them  to Im^  before4utt 


I 


SIS] 


Jbr  Wilful  and  Corrupt  Perjury^ 


A.  D.  17a4.. 


[57* 


le  might  wvm  them  bj  the  fire  on  his  birtb- 

Hr.  Nmrta,  Hadyoa  eter  teen  Mary  Sqaires 
ii  toy  hodv**  shop  at  any  time  ? — £.  Farro- 
wmf,  I  can't  say  1  bad. 

By  Mr.  WUtu. 

WhcD  was  the  first  time  yon  saw  her  f— To 
■y  the  first  time,  I  can't ;  but  the  time  1  cau 
bt  ssaUive  of,  was  the  Sdd  of  January. 

blbebirthHiay  the  29th  by  Old-Stile  or  New  r 
-It  was  00  a  Monday,  and  by  the  New-Stile. 

DU  yoo  aee  the  gy psev  first,  or  her  daughter 
MK  ftr  wttter  firstf — 1*0  the  best  of  my  me- 
■irT,  f  aaw  the  gypsey  first. 

which  of  her  danghters  was  it  that  came 
lidwpiHiipr— I  can't  say  which. 

Mr.  Xisrer.   You  say  you  saw  the  v^y^y 


MNra  yen  aaw  the  daughter,  bnt  can't  fix  upon 
thai  tec  r — L.  Farroway.  No,  1  can't  indeed. 

lisrgarel  Richardson  sworn. 

Mr.  Harti.  Where  do  you  live  T—M.  Rich- 
Qrittm,  1  fife  io  Green- street  now,  bnt  did  live 
is  Taifarf  aliceC,  Enfield. 

ffewlMg  ha?e  yon  lived  in  G reen- street  f 
-Evcrsbee  last  Michaelmas ;  1  lived  in  the 
Khw  thirteen  years. 

Da  yen  knew  Mary  Squires  F— I  know  this 
raaMD(poiBtiiig  to  Mary  ifk] aires). 

Where  did  yoo  see  her  T-^l  saw  her  at  Mrs. 
Wnwhonae'a  in  Turkey -street,  iu  the  new 
Chntanaa  wceic,  as  near  as  I  can  guess. 

What  ta  her  business  ?— She  sells  butter, 
(bos,  floor,  and  all  manner  of  things  for  poor 

What  did  she  go  to  buy  there  ? — I  can't  t;ay 
MUag  to  what  she  came  to  buy ;  she  was 
MUq^a  pipe,  when  I  went  in  there. 

lit yeo  sore  this  is  the  same  woman?— I 
"' i and  certain  sure  this  is  the  same 


I    WcKyoo  kmg  in  that  shop?— I 
[im^l  MieTey  a  quarter  of  an  liou 


sat  down 

hour;  and  I 

I  Wasiticalar  notice  of  her,  because  1  never 

■eiM  like  before,  and  I  was  surprized. 
I   Wen  yeo  in  the  same  room  with  her? — 
\m  ihop  aod  iioose  is  all  one  room ;   the 
rfc-pbce  ia  there ;    I  left  her  there  when  1 
I  MM  away. 

I  Did  yoo  erer  aee  her  at  any  other  time  ?— I 
12^  her  eooie  by  my  door  io  Turkey-street  on 
IW  ChriMaias  day  :  my  dog  had  like  to  have 
IHopeo  her ;  hat  my  husband  was  in  the  yard 
ftti  bs  prevented  him. 

I  Art  yoo  sore  that  waa  the  saoie  waman  you 
I  Mr  m  thealiop  r— I  am  positive  it  was. 

An  yoo  tore  this  was  on  Old  Christmas  day  ? 


Did  your  hosband  work  on  Old  Christmas 
I  diy  ?--No  ;  as  he  phiyed  the  New  Christmas 

S,  be  waa  reaolveo  to  make  holiday  on  that ; 
ewotatbooie. 
Did  jao  ever  see  her  after  ?-~Not  till  she 
weotef  Welk'sbooaeiand  pot  mto  the  cart ; 
1 1  Aoak  heoda  with  mother  Wells,  and 
\  §K  kacialf :  my  huabaad 
1 


.  ita  I  ihoak  haoda 
llriilHrihihnidhM 


the  gypsey 
^ells  the 


was  the  man  that  dipre  the  cart: 
was  the  first  that  got  into  it,  and  Weill 
next,  and  Virtue  Hall  the  next.    1  saw  them 
f  all  go  off.  » 

Did  yon  ever  see  her  in  custody  r^— No,  I 
did  not. 

Cross-examined  by  Blr.  Willei, 

So  you  told  mother  Wells  she  had  done  tor 
heneif ;  what  was  her  reply  ? — ^She  said,  she 
should  return  a^ain. 

Then  she  and  you  are  very  good  friends  ?~No. 

How  came  yon  to  insult  her  ?— I  neyer  had  a 
quarrel  with  her,  upon  my  oath. 

Then  how  came  you  to  say  so? — BecausC 
she  had  been  in  a  great  many  broils  and  trou- 
bles, and  nobody  thought  she  would  hsTe  goi 
out  of  ihem. 

Do  you  know  which  is  Old  Christmas-day, 
and  which  is  New  Christmas  day  ?— You  must 
tell  me,  my  memory  cannot  be  so  ffoodv 

Which  comes  first  ?— Why,  the  New  Christ- 
mas  day. 

How  many  days  difference? — Some  call  it 
nine,  but  there  may  be  more. 

How  old  are  you,  good  womao?— I  don't 
know  justly. 

What  day  of  the  week  was  Old  Christmii 
day  ? — It  was  of  a  Tuesday  or  Wednesday,  I 
can't  remember  which. 

Is  Christmas  da)r  Holy  Thursday  or  Good 
Friday  ? — I  can't  resolve  no  such  thiug ;  I  am 
no  scholar;  I  can't  pretend  to  know  such 
thinflfs. 

What  month  is  Christmas  day  in  ?— T  can't 
say  that  neither,  because  you  put  me  to  a 
stup. 

Is  it  the  95th  of  February  ? — 1  don't  know 
justly,  indeed. 

Mr.  Nares,  You  put  the  poor  old  woman- 
io  a  hurry. 

Recorder,  Don't  be  affrighteil :  ran  you  tell 
what  month  Christmas  is  in  ? — Richardson,  1 
cannot. 

Recorder.  In  what  season  of  the  year  is  it  ? 
^-Richardson,  To  be  sore  i  can  tell  that ;  it  is 
in  winter. 

Recorder,  Don't  be  terrified  ;  you  are  come 
here  to  tell  the  whole  truth,  aod  nothing  but  the 
truth,  and  not  to  tell  a  particular  story,  but  to 
answer  all  such  questions  that  the  Court  shall 
think  proper  to  ask  you. 

Mr.  Willcs,  Pray,  why  dn  you  keep  Christ- 
mas holidays?— [No  antiwer.] 

George  Clements  sworn. 

Mr.  Nares,  Where  do  you  live? — George 
Clements,  I  live  at  Enfield  highway  with  Mr. 
Hamilton;  I  entered  yesterday  aner  1  went 
home. 

Did  yoo  live  with  Mr.  Star  at  any  time  ? — 
Yea,  Sir ;  1  came  away  last  Michaelmas ;  he 
lives  down  the  Marsh-lane  by  Mrs.  Wells's. 

How  long  did  you  live  with  him  ?— About  a 
year  and  a  quarter. 

Do  you  know  Mary  Squires?--!  do;  that  is 
the  woman  that  sits  there  in  a  red  cloak. 


S753 


27  GEORGE  II. 


Trial  of  Elizabeth  Canuingf 


[SM 


Are  yoa  ? ery  tun  of  it?— I  am  sore. 

Do  you  koow  Mn.  Well*?— I  do;  my 
master  lives  but  aboat  a  hundred  yards  from 
her  house. 

Do  yovL  remember  the  time  she  was  taken 
up?- 1  do. 

How  lonnf  had  you  seen  Mary  Squires,  be- 
fore Mrs. Wells  was  taken  up?- -I  had  seen 
her  about  a  fortnight  before  that. 

Where  did  you  see  her  ?— She  came  into  my 
master's  house,  and  wanted  to  tell  my  mistrem 
her  fortune. 

Did  she  come  in  of  her  own  accord  ?-*She 
opened  the  door,  and  came  in,  as  I  was  sitting 
at  dinner.  My  mistress  would  not  let  her  tell 
her  fbrtune;  she  was  afraid  of  her,  and  craTe 
ber  a  bit  of  black  pudding  to  get  rid  of  her.  She 
asked  my  mistress  to  let  her  have  a  pound  of 
pickled  pork. 

Did  she  want  anjr  thing  else  ? — I  don't  re- 
member any  thing  ewe. 

How  kmg  did  she  stay  in  the  kitchen  ?— I 
can't  tell  how  long. 

Did  you  see  her  after  this? — |;tfd,  about 
two  or  three  days  after,  as  she  was  going  up 
into  the  walk  to  Turkey-street ;  it  was  a  very 
cold  day. 

Was  any  body  with  her  ? — No,  nobody. 

What  do  you  call  that  walk  ?— There  is  no 
name  to  it,  as  I  koow  of.  I  said  to  her.  It  is 
a  very  cold  day.  I  remembered  that  was  the 
woman  1  had  seen  at  my  mistress's. 

Did  yon  erer  see  her  afterwards? — No,  only 
when  1  saw  her  in  Newgate,  and  then  she 
knowed  me. 

How' do  you  know  that?--I  aaked  her  whe- 
ther she  knew  me  ?  She  said,  she  did. 

Did  vou  ask  her  that  of  your  own  accord  ? 
— 1  did ;  and  she  said  to  roe,  I  asked  your 
mistress  to  let  noe  have  a  pouud  of  pickled  pork, 
and  what  harm  did  I  do  you  if  1  was  there? 

Were  you  before  the  grand  jury  ? — No,  1 
was  not. 

Cross-examined  by  Mr.  WilUs, 

Why  do  you  know  it  was  a  fortnight  before 
they  were  taken  up  ? — She  came  to  our  house 
•n  a  Thursday :  my  master  was  gone  to  Hert- 
ford to  fetch  a  load  of  pease,  and  he  carried 
them  to  London  on  the  Friday. 

What  day  of  the  month  ?--I  can't  tell  the 
day  of  the  month.  This  Thursday  fortnight 
before  she  was  taken  up,  then  I  was  spreading 
dung  in  the  marsh. 

Do  you  ever  slide  on  the  ice  ? — No,  I  never 
could  slide  in  my  life. 

Have  you  seen  boys  slide  on  the  ice? — I 
have. 

Do  you  remember  a  pond  near  Mrs.  Wells's 
house  r-^Yes,  1  used  to  water  my  horses  there. 

Morning  aad  night  ? — Yes. 

Do  you  know  the  window  that  they  suppose 
Canning  made  her  escape  from  ? — 1  do. 

Could  yon,  by  looking  out  of  that  window, 
see  that  pond  ? — 1  could,  very  plainly. 

How  many  yards  might  it  be  from  the 
window  ?— It  nay  be«boat  eight  yards. 


Do  you  recolleot  whether  there  was  Imli 
weather  that  January  ?— Yes,  there  was. 

Was  that  pond  froae  over  then?  Itwv; 
we  were  hiotd  to  break  the  ice  for  the  hoiKi 
to  drink. 

Have  you  ever  seen  the  boys  slide  on  the 
ice  on  that  pond  ? — I  have. 

How  many  have  you  seen  therftslidiiigli- 
getber  ?— Two  or  three  at  a  time. 

What  day  of  the  year  is  new  Christinas-^ 
of  ?-*!  can't  say  that. 

What  month  is  it  in  ?— December. 

The  beginning  or  latter  end  ?— The  Sfitk 

What  day  is  old  Christmu-day  eCT^-^ii 
eleven  days  after. 

Mr.  Nares.  Are  yon  sure  It  was  m  ie 
Thursday  fortnight  before  Wella  wauhmt^ 
that  j^oo  saw  Mary  8(|uires  ?— CItmsiiIi.  In 
sure  it  was ;  and  that  same  day  my  artv 
went  to  Hertford. 

Mr.  Wilfes,  Do  you  know  WUIian  Hoi- 
land? — CUments.  1  do. 

Is  he  a  sober  youth,  or  BOtP— I  know  ai 
harm  of  the  boy. 

Whether,  ainong^st  the  boys  «f  the  asm 
a^,  is  his  character  a  good  or  bad  ow?  If  lis 
has  a  good  character,  upon  your  satfa  say  so; 
if  not,  upon  your  oath  say  it-^  am  sore  I 
never  heard  any  body  give  him  a  bad  cha- 
racter. 

Hannah  Fensham  sworn. 

Mr.  WUUamt,  Where  do  yoa  live?— 
H.  Fensham,  I  live  at  Enfield. 

Are  you  a  married  #oman?— I  am;  Hf 
husband's  name  is  John  Fensham ;  be  v  a 
gardener. 

How  long  have  you  lived  at  Enfield  ?--W 
teen  or  sixteen  years. 

Look  at  that  old  woman,  take  a  full  view rf 
her. — I  koow  her  -;  1  have  seen  her  before. 

When?— On  the  lOih  of  January  175S,I  ^ 
mean  after  new  Cliristinas-day,  1  saw  birii  | 
Trotts-walk,  on  the  side  of  madam  Cist^  J 
garden,  in  Enfield,  pretty  near  the  higbiraf* 

What  was  she  doing?— I  met  her  iaAl-< 
walk. 

What  time  of  the  day  ?— In  the  fore  ^^ 
the  day. 

What  day  of  the  week  ?— I  can't  i 
what  day  of  the  week. 

Have  you  ever  seen  her  aince  the  Ifilb^l 
— I  have  several  times  seen  her  past  iPi 
repass. 

What  was  her  business? — I  don't  know  thili  i 
except  it  was  going  to  the  chandler's  ahop. 

Do  you  know  the  time  she  was  taken  if  ^ 
— I  was  not  there  then.  ^ 

Did  you  see  her  of\en  between  the  16th  ^ 
January  and  1st  of  February  ? — 1  did  dwtf^ 
times. 

Did  you  see  her  after  ahe  was  taken  «p?«^ 
I  did  in  Newgate, and  I  recoUeoted  berlhoD.  » 

Look  at  li^r  again ;  are  yoa  neitaiB  Ifaii  M 
the  aame  person  ?— Yes,  Sir,  I  ana  oertan  4f 
that. 

What  may  be  yonr  tmmm  fir  i 


Jbr  Wilful  and  Cdrrupi  Perjurtf.  A.  D,  175i#  [578 


Janfimry?-*-niere  «vts  a  «tiow  on 
It  nigln,  and  the   ]6th   itwmwcl; 
abvg,  J  had  like  to  bmre  lell^  as 
fio :  «he  slopped  and  lcM>ked  at 
at  her  :  urtien  1   came  hotiie,   my 
Kttid,  Tills  snow  it  come  iit  ttie  rj^ht 
iterday  vras  the  iSlh  ;  then  L  adid, 
Ins  the  16th  ^  and  not  only  that, 
;  lo  Uie  almanack^  and  loaktfd  that 

speak  lo  you? — No,  nor  1  to  her; 
SOD  it  to  particular,  that  1  can  swear 

d  ahe  appear  to  be  ? — A  i^ypseyt 

trd  of  before  :   I  was  asked,  if  I 

rpaey,  because  she  vient  up  aud 

tunes. 

Vaked  before  or  after  this  ? — It  waa 

ctaya  after,  and  theti  1  knew  her. 

Cross-examined. 

What  is  the  reason  you  know  it 
"  1 1 —  Fen& h a  m ,    Beca use  it  w as  a 
Itbe  I  Mb  at  night. 
^Did  you  see  any  company  with 

it — i'cniham.  No,  I  did  not. 

By  Mr.  Wiltct. 

look  directly  to  the  almanack  ? — 
Uitlthe  IGihat  n(i;ht. 
very  well  skilled  in  almanacks? — 
1  can  read  and  wr;'e  a  htlle. 
i  know  what  day  of  the  week  it  is  b^ 
9ck  f — 1  cao,  I  tliink  so ;  my  head  is 
'  'l  for  that, 

iftlmanack,  and  telt  me  what  day 

T  jsf-»-(8he  takes  it  in  her  liand^ 

nmoii  »hL'et  tilmanack,  tViUkil 

:  )      I  cau^t  see  by  this,  it  ts  so 

it  abrain*  and  take  your  lime.— t 

withciut  my   spectaclea  (she  puts 

you  thuti  not  fool  me  t»o, 

i  by  this  the  dmy  of  the  week  for  the 

nber-^This  is  not  vuch  an  alma- 

r»k  in;  f  look  tn  a  sheet  almanack  i 

ill  by  Uiis. 

]fla*  liitc  it  me  ag^sin,  if  yon  cannot 

rensoo  you  have  to  (ix  it  is,  that 

i  that  d^iy  upmi  which  you  refer 

nack  i  and  now  you  hafc  sbewu 

\hk  almanacks. 

By  Mr.  Willumt, 

|«»  it  after  New  ChriKtmas  f  Was 
'  ibfi'e  WT'fck*,  or  a  month  ? — It 

above  a  fortiiig^ht  aller. 

V  H  Sunday  in  the  alma- 

"*) 
[  tbi»  moil  til  cjI  January.     (She  lelU 

\  tbe  l(it  lo  the  7ih  day,  and  i^aid  thflt 

iy,  wbicb  happened  to  be  Tuesday.) 

iJEI/ifokM  Sherrard  swoni. 

Bf.     Where  do  you  Uve  ?~**SJtcr' 
erV*<iid ;   that  h  about  m  mile 


and  half  from  £ii6etd.  I  keep  a  romo^  and 
pay  my  rent  myself 

Do  you  remember  seeing  the  g^ypsey  nhoot 
Eii6eld  ? — I  do  ;  1  snw  her  ihrcc  days  ruoning' 
before  New  Christmas,  Thursday,  Friday^  and 
Saturday. 

Look  about,  and  see  if  you  see  her  here. 
(She  could  Dot  see  her  \  she  went  down  and 
looked  about,  and  up  aij^tn  twice  ;  the  last 
lime  tbe  pointed  to  her.)-*-Why,  this  is  tht 
woman. 

W^hat  Thursday,  Friday,  and  Saturday  do 
you  mean  f<~I  meaa  immediately  before  New 
Christmas. 

Where  did  you  see  her?— In  mother  Wella*a 
house.  1  went  there,  and  went  into  her  par* 
lour,  and  when  I  came  out  a^ain,  I  »n\\  tbe 
g^ypsey  stand  at  the  kitchen  door.  1  turned 
back  again,  and  &^ked  Mrs.  WetU,  who  she 
bad  ^ot  in  her  bouse  i*  8he  said,  Lndi^ers.  On 
the  Friday  1  went  into  the  Mar!»b*lane,  and 
saw  her  standiofr  nt  the  window  i  and  on  8a* 
turday  I  went  down  to  Cbeshuut,  and  she  was 
stand  to^  then  at  tbe /toon 

How  did  you  come  to  go  to  Mrs.  Wella'a  f 
—She  asked  me  to  come  in,  that  is,  my  neigh- 
bour Wells  did ;  she  wanted  to  see  me,  be* 
cause  I  had  not  been  well. 

Had  you  any  acquaint ajnce  with  her f— No, 
nor  nerer  went  near  her  house. 

Hare  you  ever  seen  the  g'ypsey  since  thai 
time,  belbre  to-day  ?— No,  Sir,  ]  never  saw 
her  but  them  times,  and  this  time. 

Did  you  see  any  body  there  that  belonged  to 
her  ?— There  were  two  young  wenches  in  tim 
parlour,  and  a  young  man  in  the  kitchen  ;  bul 
whether  they  were  her  son  and  two  daugbteft, 
i  cannot  tell. 

Had  you  any  conversation  with  her  ? — No, 
I  never  changed  a  word  with  liir;  I  don*tUkt 
10  have  to  do  with  thorn,  1  don't  like  them  so 
well. 

Cross-examined  by  Mr.  Davy, 

Look  at  that  man  (meaning  George  Squires ;) 
Is  that  the  man  ^- 1  did  nut  see  his  face. 

Did  you  see  the  two  young  women's  faces  f 
—  l  did  ;  but  whether  1  know  them  or  not,  1 
donU  know  ;  for  they  have  changed  their 
habits,  to  be  sure  ;  that  is  one  of  them  (point- 
ing  to  Mary  the  daughter.) 

Lucy,  shew  your  face* — Yes,  this  is  th« 
other ;  I  think  I  can  swear  to  them. 

Do  you  swear  they  are  the  8aiDe?^*Tbey 
ire  f  ery  much  like  them. 

You  went  down  twice  lo  look  at  the  old 
woman  ;  did  you  see  her  face  the  fir%t  timef 
— Yes,  1  did,  but  did  not  mind  her  till  ailef « 
wanls* 

I  hope  you  mind  what  you  say  ;  you  know 
the  consequence  of  p**rjury  ;  you  are  h^foro 
God,  and  a  court  of  justice  ;  therefore  attend 
to  me:  Did  you  see  thai  old  woman  upon  your 
going  (Ibwn  tlie  firftt  tune  from  off  the  pluce 
you  now  stand  f — I  did  not  know  her^  hrcaui^ 
she  in  clean  I  ah«  is  uol  so  tiisty  aud  dirty  at 
she  waa  befart* 

3  P 


S^&]  27  GEORGE  IL 

Then  llie  s^odcI  lime  you  did  recollect  her : 
yon  say  ahc  is  ihe  same  woman  F—  Yet,  I  do» 

Did  you  see  her  face  the  lirsl  lime  goin^ 
down  ?-'-No,  f  did  Dot  see  hitr  face,  becauai;  I 
drd  iini  fake  50  much  notice. 

Did  Dot  voti  see  her  face,  or  did  not  you 
kcum-  her  faVe  ?— I  cJid  lee  her  face ;  but  being 
dean  ffhe  is  i|iiite  al(t;red. 

Tlic  mati  ihal  twore  you  «ald,  you  were  to 
iwear  to  I  be  whole  truth,  and  nothing  but  the 
truth  :  you  hove  one  foot  itk  the  grave,  and  the 
(fthcr  Oirl|  be  car^ftil  what  joti  My  :  Wa«  alie 
cleaner  the  firtit  time  than  nbe  was  the  tecond  ? 
< — She  ii  all  iUe  aamc^  but  I  did  uot  take  so 
tnoch  notice  ;  and  being  cleaner^  she  is  ?ker^d. 

Do  you  swear  to  hrr  by  her  complexion^  or 
fbAtures? — By  her  comfdexion  and  features 
both. 

Did  you  ev«r  aee  fliK*h  another  woman  io 
yotlr  life  P— Nd,  1  oeter  did. 

Wh«l  day  it!*  the  rootitU  is  New  ChHstmaa 
diy  ? — I  cannot  tell  iudeed,  beoatise  1  can  uei- 
Aef  write  not  read. 

What  month  is  it  in  N-I  cannot  telL 

Was  it  in  June,  or  July  f—l  cannot  tclL 

IV as  it  in  June  ? — !  cannot  tell. 

Was  it  in  April  ?-*No,  no,  it  was  not  in 
April. 

What  month  then  ?-'Tt  might  be  lO  June, 
for  whatever  I  know :  I  know  that  is  the  vr^^ 
man,  to  be  tare. 

Aldermtii  Scoft.  Was  ii  in  vvinter,  or  in 
itimiDerF — E.  Sherrard,     It  was  in  wiuter. 

By  Mr.  Davxf, 

la  New  Cbriftmas  before  Old  Christmaa,  or 
afVer?— Nay,  New  Christmas  b  before  Old 
Christ  mas,' I  am  sure. 

Did  yon  keep  New  Chnsimas,  where  you 
Uve?  do  you  go  to  church?-- Yes,  I  know  it 
by  i;oiiig  to  church,  aud  every  thing. 

Did  you  go  to  cburcb  on  Old  Christaaas 
day  ?--Yea. 

'Recorder,  What  day  of  the  week  was  New 
Clirisimas  day  ?— £.  Sherrard.  It  was  on  the 
Tuesitay,  was  it  not?  it  was  dlooday  or  Tuei- 
^ay  bowioafcr. 

(By  Bilr.  Dary,  continued.) 

Do  yon  go  to  church  trtry  Sundny  P-^1 
tery  seldom  miss,  when  it  is  fair  weather. 

liid  yoti  sfo  to  church  the  Sunday  before 
New  CbrisliiiaB  day?  -!  did  on  ChriatiDas 
da\%  and  the  8unday  before. 

llow  miinv  days  were  there  between  ?*- You 
eSTi  m:tke  it  but  two  days,  he  it  how  it  will. 

Arc  you  sure?-* It  was  aboot  three  days ;  il 
was  no  more^  uor  oould  be  any  naore. 

How  came  vou  to  know  it  was  Ifefbre  New 
Chrislraiis?— Why,  IMt  tell  you  hotv  I  came  to 
know  :  Mrs.  Wells  bid  me  come,  and  said  she 
would  jHTe  me  something;  for  a  CbristTtias-boy  ; 
Mipo  I  came  there,  fhe  a^^ked  me  to  come  in  ; 
I  drdf  hut  did  n&t  stay  but  a  irt:ry  little  time  i 
When  I  came  to  the  parlour  door,  I  saw  the 
M  gentlewoman  stauding  at  the  kitchen  door. 


J 


Tfitl  of  EUmhHh  Cannings 

Wbat  did  »he  ^ve  you  for 
I  boat  ? — 8he  did  not  give  ine  no  ffmt 
I      There  is  no  hdrm  in  sayinf  wnl  H 
was  a  small  matter  ;  I  bad  m%  «  f«u«»jr% 

Then  she  f^wwe  you  a  p^ny  for  yoor  ClmSfe> 
roas-box  ? — Yes,  Nr. 

Uad  you  ef  er  m  CHrisiaMa  bax  of  tier  ^ 
fate?— No. 

Did  she  give  it  yon  befbre  or  ■llcr  Chtisi* 
mas  day  ? — ^It  was  three  days  before. 

Did  any  body  else  give  you  «  ObrtfttBI* 
box?"*Ye8,8ir. 

Had  you  ever  a  fHrlbint;  given  you 
Cbnslmas^ay  ? — Yes^  8ir. 

From  whom  ?  tell  me  that.*— At  Ulr^ 
and  all  the  people  that  areaMe;    tb 
give  ine  something-  at  Christi]i«a«  a^' 
their  poor  neij^bbours. 

What  btisiness  are  yoia?-»l  work 
living,  as  other  people  do. 

Ih  it  utiual  to  give  t>efore  Cliristmas  or 
— We  always  go  before  Christmas* 

Do  all  give  before  ChriBiiKits?<->NO|  MK 
give  after  Christmas. 

Who  are  they  ?— The  geulltineo  «t  Bodflf- 
hill  do. 

Where  do  the  people  lire  that  gire  be 
Christmas  f—All  the  people  at  £n6eld  do. 

By  Mr.  WiUinmi. 

Then  you  have  Christmas-boxefl  given  yoa 
before  Christmas  ?  Then,  I  believc»  you  fciMif 
prelly  well  when  Christmas  comes. — Yes,  8ir. 

\\  hat,  you  are  a  ptK}r  woman  ?  Those  pet^ 
pie  give  it  you  before  Christmas,  In  order  Is 
spend  at  Chrisitmas? — Yes,  Sir;  only  ibt 
Quakers,  atBusihy-hil!,  glreitalWClirisiaiB. 

When  Christuias  comes,  you  know  it,  dM\ 
you  I — Y«,  I  y\i*^  SSir. 

By  Mr.  Recorder, 

Do  yon  know  New  Year's  day  ?— I  tfOw 

Wlieo  does  that  bappen  f — ^That  ia  the  week 
after  Chri$tmas-day. 

Hovt^  many  ibys  are  there  af^er  New  Cbiisl- 
mas  day  to  New.yeat*s  day  ?*— A  %%ec4, 

Were  you  ever  in  the  workshop  at  Hfi. 
Weill's  ? — No»  never  in  my  life ;  I  utftt 
heard  of  it  before. 

Mr.  Wiiliamt,  Did  you  never  bear  thett 
was  such  a  place  as  the  workshop  at  Mis. 
Wells's  ?"*£.  Shcrrard,  No,  indeed  1  did  noL 

Mr.  Narci.  On  Saturday  night,  Mr.  Mm* 
ton  received  a  letter  in  court,  giving  an  toCOM 
that  there  v^as  one  Mrs.  Edwards,  who  oonld 
cive  some  lij^ht  into  this  affair:  u|mn  that  bs 
desired  she  might  be  subpceuaed.  !She  was  not 
in  our  original  briefs,  ami,  1  declare,  I  bars 
stuck  to  that  very  strictly,  not  to  admit  any 
witnesses  that  are  not  in  the  brief.  We  art 
totally  in  the  judgment  of  the  Court,  wbelber 
she  shall  he  called  or  not.  The  letter  t&  ano- 
nymous. 

Mr,  Davy,  The  gentlemen  have  been  s« 
candid  as  to  ahew  me  this  tett«?r:  I  have  not, 
to  this  itiomenty  attempted  to  uppooe  toy  tbinf  » 


^I] 


fur  Wiljul  and  Corrupt  Perjury. 


A.  D.  l7Si. 


[5W 


the  liking'  sny  questions.  What  boi  been 
dooe  in  this  case,  I  have  not  done  it.  I  have 
hteQ  in  the  search  of  Iriilh  :  but  arter  your 
Jordjihip  bas  tietl  us  dovvn  very  Klriclly,  willjout 
miay  [KMSibiHtv  of  release,  1  bope  the  nde  ex- 
t€Dds  geueml  without  esfceplatice.     I  submit  it 

an  obJecUoQ,  witb  regard  lo  Ibe  groeriil 
fule  of  practice ;  but,  1  imaj^ine)  tb«  Court 
will  aot  tbiDk  it  proper,  eongiideno^  what  bai 
l»een  done. 

Mr.  Nares,  Mr.  Davy  menrJDrvR  he  has  not 
'Objected  to  any  eTidence ;  I  don't  know  any 
evidence  that  has  been  called  be  coutd  object 
In*  on  our  side.  We  have  not  objected,  or 
|rtpppcd  thetn,  in  any  in&tance  :  but  here  is  a 
fiOQr  ffirl  on  her  trial :  I  would  stibmit  it,  bow 
inF  the  Court  tbinke  this  a^^reenient  binds, 

Mr.  Baron  Legge,  I  will  tell  vtm  my  opi- 
luon  as  to  this  matter  :  1  tUougfit  it  a  right 
proposal,  when  made,  un  both  side?*,  that  you 
should  go  on,  according  toy onr  briefs,  stated 
at  that  time,  in  reg^ard  to  ibe  trial ;  and  as  it  lias 
pDome  10  an  unutuul  lenn^i,  there  was  an  abso- 
lute necessity  lor  such  au  ai^eemeot,  and  to 
ihipftrt  from  it  i«  an  uopiecedeiited  thin? ; 
therefore  we  must  ward  against  all  the  mis- 
chttfs  that  can  arise  from  it ;  the  worst  that 
can  arise  is  a  growinf^  evidence  upon  an  ano> 
oymous  letter  i  there  is  no  to  no  da  lion  on  either 
side  for  it,  and  we  are  not  to  admit  of  it. 

Mr.  Just.  C^tre.  I  am  entirely  of  the  same 
opinion  with  my  brother :  upon  this  eviileuce 
ft  will  be  left  with  the  jury^  upon  which  side 
the  evidence  is  most  conclusive. 

Mr.  Naret.  It  waN  my  duty  to  mention  it,  as 
Hr,  Morton  destral  she  wh^hl  be  subpoenaed ; 
iheretore  I  hope  the  Court  will  excuse  me. 
We  wilt  call  Mr.  8alt  to  prove  the  examination 
l>f  Ebzaheth  Cannings  before  juf^tice  Fielding. 

Mr.  Davy*  Mr.  Salt  cannot  explain  away  a 
frrilten  evidence  taken  before  a  magistrate  i  I 
fik^t  to  his  evidence, 

Mr.  Nares,  Then  we  wilt  call  to  the  oonfes* 
9100  of  mother  Wdlif. 

Mr.  Davf/,  My  lord,  1  ohjt'ct  to  (hat ;  she 
|i  a  very  pr«jper  eviilence  herself,  shp  has  lieeo 
praaded  in  the  band  ;  if  they  will  produce  her« 
|(he  is  within  a  ft^w  yqidft  of  the  court. 

Mr«  Nnris.  Tliis  girl  is  indicted  lor  what  she 

Bkf  e  in  evidenct?  agaiuit  Hu^annah  Wells  and 
ary  Squires ;  she  is  now  calleil  Ujion  for  a  per- 
«^  ry  to  swtaring  upim  that  particular  trial. 
OW  these  two  persons  were  convicted  ;  there- 
forei  t  take  it  lor  granted,  we  are  at  liberty  to 
pre  in  a  circumstaoce  to  prove  what  she  suid, 
la  evidence  on  the  iodictment.  All  ihni  Wilb 
bad  said  at  that  time  was  evidence  agunial  WelU, 
and  all  that  Squires  bad  said  was  evidenre 
against  herself,  We  are  now  come  to  esiablish 
rlier  evidence,  standing  at  the  time  ahe  w&n 
iJtamined  i  and,  if  wa  can  prove  from  their 
ovro  decUrations  that  Canning  and  Squires 
yere  there,  we  have  a  pruper  riglit  to  call  in 
jpch  eridenoe,  in  order  to  corrn borate  that 
^|fl*»  miiinfioy  ;  for  it  is  that  tetktimouy  that 
<  A«  tfave  upon  the  trial  that  h  to  he  adnutled. 
W^<  P^fy*  I  will  heg  leave,  in  order  to  give 


light  to  this  objection,  to  ptii  the  case  mor^ 
familiarly  ;  sujipose  a  person  had  sworn  on  a 
particular  day  thai  I  waa  at  York^  and  that  ( 
said  1  was  at  York  ;  now  my  saying  I  was  at 
Y'urk,  is  no  reason  at  all  for  their  swearing  I 
was  there.  I  can  only  give  them  authority  to 
»ay,  1  said  I  was  at  \  ork  ;  but  1  am  the  proner 
person  to  be  examined  to  the  real  fact.  Atra, 
Wells  is  here  to  swear  whether  she  was  or  wai 
not  ID  her  hou«e,  and  she  is  a  competent  wit« 
nei^f  to  that  fact* 

J>lr.  J  mi.  dive.  This  h  an  indictment  fof 
perjury,  for  a  testimooy  she  gave  at  a  trial  be- 
twixt the  crown  and  the  two  prisoners  Squirei 
and  Wells;  and  in  strictness  the  le&wraouy,  to 
wit,  Susannah  WellsV,  would  not  in  tlie  courts 
of  the  trial  have  alT^cted  Hquires,  or  Mquires's 
have  aifected  Susannah  > Veils;  hut  this  is  aa 
indictment  for  perjury,  in  the  testimony  that 
this  girl  Canning  gave  of  them  bulb  ;  therefore, 
I  tliiuk,  either  are  pioper  witnesses  of  what 
she  said. 

Mr.  Baron  Legge,  To  be  sure,  what  they 
said  is  evidence  against  the  person  that  did  say 
it:  when  you  have  made  use  of  those  which 
were  not  produced  in  eridt^nco  at  the  time,  that 
could  not  liave  bt'ea  evidence  against  the  ac* 
cessary  and  not  the  principal ;  bow  will  yoa 
produce  that  ? 

Mr.  Naret,  In  the  fir^t  place,  their  not  being 
called  as  witne^ises  can  be  no  objection  in  not 
calling  them  now,  because  it  has  heeti  done 
several  times:  I  do  not  call  every  witness  in 
my  brief;  if  I  have  i\t\y  in  my  brief,  and  fiftT 
swear  to  the  fact,  1  would  c«ill  them :  when 
that  person  which  is  a  viiinfss  \s  called  upon, 
should  not  she  have  the  benefit  of  every  cir- 
cumsi<mce  that  will  cuufirm  the  testimony  f 
Or,  will  the  Court  exclude  her,  because  Vie 
persons  concern ei1  in  the  prosecution  did  not 
think  proper  to  i^ll  the  other  wunetsee  that 
they  mi^ht  have  called  ? 

Mr.  Baron  Legge.  The  indictment  was  laid 
jointly  against  Mary  Squires  and  Susannah 
Wells ;  was  it  not,  3lr.  Ford  ? 

Mr,  Ford,  (Clerk  of  the  Arraigns.)  They 
were  both  tried  io^etlier,  and  the  indictmeut  ou 
the  same  piece  of  pcircbment. 

Mr,  Dary.  This  only  sets  forth  the  indict- 
ment of  Mary  Squireiv,  not  a  word  of  Susannah 
Wells;  she  is  not  mentioned  in  it, 

Mr,  Baron  lAiugc.  Would  you  prodilM  that 
which  origioally  had  been  evidence  agatlUtt 
Sf|uire8  ? 

Mr  Narcs,  The  same  witoetses  were  e(xa- 
mined  on  the  whole  trial  ah  through,  and  they 
wt?re  found  both  guilty  at  the  same  time,  aiul 
the  jurv  were  cbarjfed  with  both  at  tlie  same 
time ;  the  assitrnment  of  the  perjury  is,  that 
she  was  in  Susannah  WellS'S  house,  and 
robbed  in  her  house. 

Mr.  Baron  l^gge.  Then  the  evidence  of 
Susannah  Wells  is  evidence  to  that  account* 

iMr.  Just.  CiiTc,  This  ia  an  indict m^ot 
af^inst  principal  and  accesiary,  whereby  they 
are  coinpltcaied  in  the  samt  tttdictmetit :  it  is 
ai^aiosl  S^uirctf  as  priocipal^  and  WeUf  19  s^ 


083] 


^  GEORGE  n. 


Trial  qf  Elizabeth  Cantung, 


[584 


cessary  after  the  fact:  so  far  is  extremely 
clear,  that  abe  never  could  have  been  convicted 
as  accessary,  unlesa  there  bad  been  a  robbery ; 
and  she  knowings  of  that  robbery,  therefore  she 
was  interested  at  tiiis  trial,  as  it  was  one  and 
the  same  indictment,  and  their  case  submitted 
to  the  consideration  of  the  same  jury.  I  think, 
that  if  Susannah  Wells  has  (jjfiven  in  any  testi- 
mony that  there  was  a  robbery,  considering 
the  nature  of  the  trial,  as  it  comes  before  the 
jury,  it  is  the  same  as  if  Squires  bad  declared 
It  herself. 

John  WardswoTQ, 

J.  Ward.  I  have  known  Susannah  Wells,  I 
believe,  twenty  years. 

Mr.  William.  When  did  yon  see  her  lately  ? 
—J.  Ward.  I  seeing  in  a  news- paper  an  ac- 
count of  her  being  taken  up,  and  pot  into 
Clerkenwell  Bridewell,  and  living  in  Soath- 
wark,  the  first  time  I  came  cross  the  water,  I 
thought  I  would  go  and  see  her.  (I  had  had 
a  notion  that  she  was  dead,  for  I  had  not  s^n 
her  for  above  twelve  years.)  I  went  to  see  her 
in  Bridewell.  The  first  word  she  said  to  me 
was.  Who  thought  of  seeing  you  here  ?  My 
reply  was,  By  seeing  your  name  in  the  news- 
papers. 

How  long  was  this  after  she  was  taken  up  F 
—It  was  just  after  she  was  taken  up ;  I  cannot 
•a^  to  the  day  of  the  month ;  it  was  before  the 
tnal  of  Squires  and  her.  I  asked  her,  how  she 
came  to  keep  the  girl  there  a  fortnight  ? 

What  did  you  mean  by  •  there?' — I  under- 
stood by  the  paper,  the  girl  was  kept  at  her 
house. 

What  was  her  answer  ? — She  said,  she  was 
there  twenty -eight  days.  I  asked  her,  what 
room  she  kept  her  in  ?  She  said,  You  know  the 
room  very  well. 

Aid.  Dickinion,  Had  you  been  acquainted 
with  her,  and  did  you  know  the  rooms  in  her 
house? — J.  Ward.  I  had  been  acquainted  there 
twelve  or  thirteen  years  ago,  (but  not  since  I 
have  been  in  business  for  myself)  and  have 
been  all  over  the  house. 

Mr.  Williams.  Did  you  understand  what 
room  she  meant  ? — J.  Ward.  No,  Sir. 

Did  you  see  her  after  this? — 1  did,  on  the 
Sunday  following;  then  I  met  her  in  the 
Bridewell-yard.  We  never  drank  together  the 
first  or  second  time.  1  asked  her,  how  she 
thought  to  get  off  this  affair  ?  She  said,  she 
must  take  her  trial. 

Mr.  Baron  Leege.  How  came  you  to  go  a 
second  time  ? — J.  Ward.  Because  my  wife  had 
a  mind  to  see  her :  we  both  lived  at  Waltham- 
Abbey  before  I  married.  Air.  Jones  went 
with  me  the  first  time. 

Mr.  Williams.  Where  do  you  live  now? — 
J.  Ward.  IliveinMaid-lane,St.  MaryOvery's 
parish,  Surrey.     I  am  a  breeches- maicer. 

Are  you  a  house- keeper  ?— Yes,  Sir ;  I 
have  lived  there  near  the  spot  thirteen  years, 
»nd  have  carried  on  buatness  fourteen  years. 

Mr  Baron  Legfe.  So  you  asked  oer,  bow 
ihe  kqit  the  gui  a  fortnight 


knowing  in  what  room  ?— /.  Ward.   Yes,  mj 
lord. 

Did  she  form  her  answer  out  of  the  Dews- 
paper  ?— Not  as  1  know  of. 

Cross-examined  by  Mr.  Davy* 


than 

bdievesbe 
for 


there,  wUhopt 


What  business  carried  you  there?— By  i 
ing  her  name  in  the  paper,  1  went  tqsee  if  it 
was  the  same  woman,  out  of  cariosity,  not 
having  seen  her  above  twelve  years. 

How  far  did  you  live  from  Enfield- Wash? 
—1  lived  at  Waltham- Abbey. 

Had  you  bad  a  ffreat  desire  to  know  whether 
she  had  been  dead  or  alive,  you  might  have 
gone  to  £nfield- Wash,  and  have  known  that 
— 1  wish  I  hdd  never  gone  to  have  seen  her. 

Had  you  any  other  business  there  F-^Hi^ 
none  at  all ;  only  I  had  some  at  SafiTroa-Ui, 
with  a  man  that  works  with  me;  and  I  fasl 
also  some  business  in  Shoe-Une,  and  Ml 
Jones  went  with  me. 

What  business  had  he  there?— He  west 
with  me  as  a  friend  and  acquaintance  $  ha  Ind 
never  seen  her  in  his  life  before. 

Did  not  you  ask  her,  what  ahe  was  tlwre 
for?— No,  I  did  not. 

Did  not  you  ask  her  more  q( 
that  you  just  mentioned  ?— No. 

Do  not  you,  upon  your  oath, 
meant  to  let  you  know,  she  waa 
keeping  the  girl  in  her  house  twen^-eigkt 
days? — No,  I  did  not  understand  her  so. 

Did  not  she  tell  you  she  was  innocntof  the 
charge? — No,  Sir. 

Did  not  she,  before  the  trial,  aay  aha  wis  in- 
nocent of  it? — No,  Sur ;  what  I  told  yon  is  a! 
truth. 

How  long  did  you  take  the  confiasMMt 
to  be,  when  you  read  the  news-paper?—!  took 
it  to  be  a  fortnight. 

What  are  the  words  yon  made  nss  of  ?-l 
said.  How  came  you  to  keep  the  girl  there  • 
fortnight? 

Where  did  you  mean  ?— I  meant  in  berovi 
house ;  and  she  said  twenty-eight  days. 

How  came  you  not  to  give  evidence  of  lUi 
I  when  she  was  tried  ?-I  did  not  know  I  sbodi 
l>e  wanted :  the  reason  1  came  now  was,  I  im 
with  my  friend  drinking  a  tankard  of  beer,  asi 
he  threw  his  skits,  and  said,  Mother  Weill  kd 
been  an  old  procurer  of  mine ;  and  the  pstfh 
in  the  house  heard  this  affair  talked  ovcr,iBi 
they  went  and  brought  some  people  firom  Al* 
dermanbury,  who  came  to  me,  to  whom  1 1^ 
lated  it  again. 

Mr.  Davy.  I  insist  upon  Mrs.  Well&^bdlC 
produced  to  know  if  he  knows  her. 

Mr.  Nares.  That  you  never  intend. 

Mr.  Baron  Legge.  You  say  you  saw  il  ii 
the  news  paper,  and  you  askol  her,  bow  Ai 
came  to  keep  the  girl  a  fortnight?  She.isli^ 
Why,  she  was  there  twenty- ei^ht days.  8i^ 
pose  it  was  to  be  said,  I  saw  in  the  newi*fi 
pers  you  sat  five  days  in  the  Old  Bailey  t  II 
answer  would  be,  We  sat  ten,  if  dM  OMn^ 
pers  were  ten.  '  -" 

Mr.JtTaivf.  Did  yon  ask  thk  «kh  l«y^ 


; 


S8S]  ^r  Wilfd  and  Corrupt  Pe^ 

fnhttmmi  irbtcomta^  a  witness  against  herf 
*»lfV«f.  No,  not  10  ibe  least. 

By  Mr.  Davy, 

Ytd  yoii  etet  make  affidavit  of  this  before  T 
It  ws«  ju«t  when  iliey  were  going  to  tile  a 
bill  against  ibc  Ahbotsbury  men. 

Bow  ion  If  if  it  Bgo  f — Refure  Ihe  trial  of 
tlie  Abbotaknify  men^  the  genlJemen  w^keA 
wnt  lo  mtll^  il,  whicli  I  itid  before  sir  Robert 


examined  then  before  the  g^nd 


Wtra jr#ta  I 


JUchard  Jona  sworn. 

Kr,  N^rts,  Did  you  go  with  John  Ward  to 
Clerkeuwctl  Bridewell  ?.« Yea,  Sir,  he  asked 
a!i«  togt>  with  bim  to  see  mother  WelU,  and 
•aiii«  hm  knew  ber  in  the  eouniry . 

Wkiro  ihd  you  go  with  Uiin?--!  tbink  U  was 
mboai  the  b«ginniui(  of  February  was  twelve- 

IOIlOfll« 

Wbtl  ODaTerBaiion  pas$ed  between  Ward  and 
moibcr  VfelU  there?- -He  asked  her,  how  she 
cane  la  be  ao  vile  aa  to  siiut  up  the  girl  a  fort- 
nij^hi?  A  forUiiijrht,  aaid  shei  abe  was  there 
ci^t- ami  twenty  dayi. 

Htiai  dill  he  &ay  to  ber  upon  that?— 1  cao- 

DOi|«U. 

Did  he  auk  lier  any  thing  aioreP*«NO|  no 
Bor«,  a«  1  know  of. 

Cross  examined  bj  Mr.  Davy, 

Waaatiy  thing  Kaid  about  a  news- paper  f^ — 
Ko,  be  tout  me,  he  had  read  it  in  a  news-paper 
ofmnther  Wdts^s  being  in  Bridewell. 

liow  came  you  to  go  with  bim? — I  went 
Hitb  hiin  to  keep  bim  company. 
fDid  he  nay  any  thing  to  her  about  seeing 
I  Mate  in  the  news- paper  ? — Not  us  I  know 
1 
?99t  a  word  f— Noi  not  as  I  know  of. 

'  noi  «be  say  she  was  ionooeotf-^NOf 
^  %t&H  about  it. 
Did  not  ttie  aay  she  bad  neter  seen  the  girl 
'^bfT  bf«? — N0|  she  did  not  say,  she  bad>  or 

By  Mr.  Naret. 

[Where  do  yon  lire?— I  Uve  in  Shoe-lane  j 
I  a  hrasS' founder ;    1  have  a  wife  and  fa- 

S'  theriJ. 
ow  long  have  you  bred  there?— About 
*  I  yean. 

"Arir  voii  s  house-keeper? — 1  ki^ep  a  bctite 
ear. 

J  bare  in  my  brief  some  wit- 
aetfte^  ui  i:f«^dit  and  clmracter  ibut  were  near 
ib^  •fYp**^y  i»hiMt  "the  wat>  ineil|an<l  lieard  mjine 
€fr.'  ii  she  iDiidt:  at  that  time,   t^low 

h>  J'  thinks  tht>«e  witoraaea  are 

|ir  ve  ir)  your  lordibip. 

.    1  wave  that,  I  ha^e  no  ol>jectioQ 

it  Leggf*    Whether  any  thing  said 
«  <-  any  evidence,  un Iras  naid  to  the 
CMft    Tbtra  la  biir«  a  tuaoifesi  diifereuce  be- 


A-  D*  1754. 

tween  what  h  said  in  Court,  and  to  tlie  Couri; 
fur  ivtiat  is  not  saiil  to  the  Court,  is  the  same 
ay  naid  any  where  elae. 

Mr  iVar^i.  It  is  no  part  of  the  evidence 
given*  but  observations  she  mode  upon  iht 
evidence  given  against  her. 

Mr.  Just.  Clive.  That  is  giving  evidence  of 
that  which  is  no  evidence. 

ftlr.  Nares,  We  are  now  goingf,  my  lord,  to 
impeach  the  credit  of  some  of  the  witnesses  : 
we  begin  with  Judith  Natus, 

Nathaniel  Crumphornc  sworn. 

N,  Crumphamt*    1   tiveat  WalthumCrosi- 
tn  Hertfordshire;    I  have  been  a  ho  use- keeper 
there  above  seven  years. 

Mr.  Williants,  W*hat  is  your  busiueaa  ?— 
Crumphorne,  I  am  a  cordwainer. 

Do  you  know  Judith  Natus?^ — I  do,  sbe  Is  ^ 
wife  to  Fortune  Natus;  they  live  at  Waltham- 
Crosa, 

Did  Tou  know  them  when  they  lived  at  En* 
fiebl-Waab?— No,  I  did  not. 

When  did  you  see  Judith  Natus  ? — I  saw  her 
at  my  house  on  the  Slst  of  April  tast.  She 
came  to  knuw  if  one  TJiomas  Pain  wanted  ft 
person  to  pick  up  stones.  I  said  to  ber^  Mrs, 
NatuA,  how  can  you  have  the  conscience^ 
knowing  this  innocent  creatnre  Betty  Cannmg 
was  at  Mrs.  Wella^a  bouse,  that  you  should  gH 
and  be  an  evidence  against  her  ?  The  answer  1 
sbe  made  me  was,  Indeed,  Mr.  Crumphorffe* 
I  cannot  nay  but  she  re  ally  was  there,  when  we 
lodged  there. 

Did  she  come  to  your  bouse  accidentally  ?— 
8he  came  to  ask  if  Mr.  Pain  wanted  a  person  to 
pick  up  stones. 

Who  was  by  at  tbe  time.^ — My  neighbour 
and  nay  wife  were. 

Cross-  examined  by  Mr,  Dav*/. 

Then  Uiey  did  lodge  at  Wells's,  did  they  ?- 
She  said  so« 

When  did  you  understand  by  ber  that  abal 
And  her  husband  lodged  there?— Rhe  told  m«J 
BO  on  the  3Lst  of  April ;  but  I  cannot  tell  whe« 
tbey  Iodised  there. 

Did  she  tell  you  they  all  three  Iodge<l  in  ou#  \ 
room  ?--)  can  say  nothing  at  all  about  that. 

There  is  the  little  word  *  but,*  are  you  sur#  | 
that  was  mentioned  ?  I  will  read  it  without  that 
word-*^  Mr.  Crumpborne,  V  cannot   say   f$h« 
realty  was  there,  when  we  lodged  thereJ-*8b9 
said  tbe  word  '  but.* 

Are  you  sure  she  said  that  word  ?--She  aaid  j 
it  indeed.  1 

What  did  you  onderstand  by  it.^— Wbatlj 
understoo4l  by  it  was,  that  she  really  was  there^ 
when  she  lodged  there.  I 

Mr.  Baron  Lt^^e.  When  was  it  you  bad  thit  I 
conversation  ?•  -  AC  Crumpkfrttc .  It  was  on  K\m  ] 
^Ut  of  April  last. 

Mr.  Narti,  Then  what  you  charged  her] 
with  wa«,  bow  contd  she  in  her  comcienc^l 
awear  an,  knowing  the  innocency  ot  Cannioi;  f  F 
— JV.  Crumphome.  Yes,  and  the  words  she  fiaid  j 
vrercp  *  ludoedp  Mr.  Crmpphornc,  1  ciJmi>t  aaj 


:J87J  27  GEORGE  II. 

bat  flie  really  wai»  there»  when  we  lodged 
there.' 

Mr.  Baron  Legge.  How  many  days  before 
this  trial  began  was  it  that  she  said  so?— ^. 
Crumphorne.  It  was  a  fortnight  ago  yesterday. 

Elizabeth  Crumpkome  sworn. 

E.  Crumpkome.  Nathaniel  Crnmphorne  is 
iny  husband.  Judith  Natus  came  to  our  house 
on  the  S  J  St  of  April  last. 

Mr.  Nares.  Did  ^ou  send  for  her?— J5. 
Crumpkome,  No,  I  did  not,  nor  I  did  not  want 
to  see  her.  She  came  to  ask  (br  a  person  about 
picking  up  stones.  My  husband  said  to  her, 
How  could  you  be  fM>  cruel,  knowing  Elizabeib 
Canning  was  confined  when  you  was  there,  to 
go  to  swear  as  you  did  ?  Her  answer  was,  In- 
deed, Mr.  Crumphome,  really  she  was  there, 
when  we  lodged  there. 

Tell  the  words  as  near  as  you  can.— She  uid, 
Indeed,  Mr.  Crumpliorne,  she  actually  was 
there,  wheo  we  lodged  there. 

Did  she  say  she  was  confined  there  ?— No, 
Sir. 

John  Jackson  sworn. 

Jacluon*  I  have  lived  at  Edmonton  fourteen 
or  Atleen  years.  I  saw  Fortune  Natus  lay  a 
wager  at  the  Four  Swans  at  Waltham-Cross, 
that  he  was  at  Weils's  house  all  the  time  of 
January  1753,  and  it  was  proved  he  lay  at 
another  house  one  night. 

Faul  StevcM  sworn. 

Sletens.  1  live  in  New-Prison  walk,  Clerken- 
well :  1  am  a  publican,  and  have  lived  there 
between  twelve  and  thirteen  years. 

Mr.  Nares.  Do  vou  know  Susannah  Wells? 
"^^Stevens.  I  do;  1  have  seen  her  in  Bridewell, 
and  at  her  own  honse. 

Do  you  know  Mary  Squires  ? — I  do. 

See  if  you  sec  her  here. — ^That  is  the  wo- 
man (poiotmg  to  her.)  I  saw  her  in  New  Pri- 
son, about  three  or  four  days  afler  she  was* 
taken  up  and  carried  there.  There  was  a  gen- 
tleman or  two  and  1  went  down  to  see  the  peo- 
ple on  the  common  side  in  the  prison.  She 
was  sitting  by  the  fire- side  in  the  kitchen,  in 
ahe  master's  side.  We  bad  a  bottle  of  wine 
there.  She  began  t«  speak  and  resolve  some 
questions.  She  acknowledged  she  was  at  Mrs. 
Wells's  house,  but  said  For  what  ]  am  here 
for,  I  am  innocent  of,  that  is,  Cultiog  off  her 
•ta^s ;  but  to  be  sure  the  person  was  there,  I 
believe.  She  said,  she  never  was  guilty  of 
robbing  the  ^irl. 

How  long  did  she  say  she  had  l)een  there 
herself? — Slie  said  slic  had  been  there  a  fort- 
liight  and  three  dayK,  I  tiiink. 

Wliai  girl  do  you  mean? — I  mean  EUzabeth 
Canning. 

Cross-examined  hy  Mr.  Davy. 
Then  she  said,  she  did  not  cut  her  stays  off*? 
»*-She  put  her  hands  up,  and  said,  As  God  is 
<n>  Savioui ,  what  1  am  sent  here  for,  I  am  in- 
nocent of;  but  she  aaid,  she  M^ved  the  person 
waa  there. 
1 


Trial  of  Elizabeth  Cannings 


im 


Did  she  say  she  saw  the  person  there?— 
No,  she  did  not.  She  said,  ahe  beraelf  wu 
there  a  fortnight  and  three  days,  and  the  girl 
was  there  in  the  time. 

Answer  my  question.  Did  she  aay  she  ever 
saw  Elizabeth  Canning  at  Wells*a  in  bar  life  ? 
— No,  she  did  not. 

Did  she  make  use  of  the  word  *  bali^Te'  ?— 
She  said,  she  was  sure  she  was  there. 

Did  she  acknowledge  sherwas  there?— She 
did  ;  she  came  into  a  Kee  way  of  speaking  at 
last,  more  than  at  first. 

Did  she  say  she  was  there  not  above  a  fiif^ 
nigbt  and  three  days  in  the  whole*?— -She  dil 
not  say  she  was  there  more. 

Mr,  Nares.  Did  she  acknowltdgf  sham 
there  a  forUiight  and  tliree  dayaf  Sfffmf, 
She  did. 

By  Mr.  Justice  CHve. 

Di J  she  say  she  faw  her  there  ?<— She  aii 
she  was  in  the  house  sure  enough ;  pjia  k^ 
lieved  she  was,  and  positively,  almoin  inn 
of  it. 

What  did  you  go  to  tbe  gaol  for  7  Wu  it 
to  Gfet  this  confession  from  her  ?— Na. 

Who  were  those  gentlemen  thai  yoQ  wfot 
whh } — Mr.  Martin  and  Mr.  Dudley. 

Did  you  give  evidence  here  upon  t|iaM? 
—No. 

Joseph  Haines  awora. 

Mr.  Williams.  Are  you'a  house- kee^?— 
Haines,  I  live  at  Ware  in  Hertfordsbvai  I 
have  been  a  house- keeper  above  foity  yup 
there. 

Do  you  know  Fortune  Natus?— I  da  1 
have  known  him  six  or  seven  yeara,  or  iMff». 

Do  yen  know  his  wife  ?— 1  do,  ahe  wasM 
and  born  in  tbe  town. 

What  kind  of  a  character  does  he  bear?  Di 
you  look  upon  him  to  be  an  honest  man?— Mi 

po  you  believe  his  oath  is  to  be  takes  ?— I 
believe  it  is  not.  I  know  it  is  not  fit  Is  b 
taken.     He  is  a  very  dishonest  man. 

Cross-examined  by  Mr.  Davy. 

What  is  your  business? — I  am  a  bai|t- 
master.     I  am  an  owner  of  part  of  two  bameii 

Did  you  ever  hear  any  body  speak  wdl  if 
him  in  your  life  ? — No,  not  lately.  Whca  ta 
came  to  our  town,  he  turned  a  bad  noao }  vkp 
be  worked  at  Fatham's-Uall,  he  went  op  Vl* 
ter  ;  but  when  he  came  to  our  town,  ha  tt 
ceived  a  great  many  people. 

ilo  w  long  is  that  ago  ?— That  is  ten  ar  tinlM 
years  aep. 

How  long  is  it  since  yon  beard  a  goad  ahK 
racter  of  him  ? — 1  have  not  beard  a  gaod  m$ 
of  him  tor  almost  three  years.  « 

Do  you  think,  if  he  was  to  come  iola  aosa^ 
of  justice,  and  not  to  get  a  farthing  by  it,  ll|l| 
he  would  perjure,hiaiseU' ?— I  think  JM  wwm 
say  any  thing  to  get  a  shilling.  .t 

Suppose  he  oouUl  not  gel  a  abiUing  by  kf^ 
He  would  try  for  it.  .; 

.Day^u  jthiok  bewonU.ratlMr  nvaaiNP 


J 


fir  Wilfid  tttid  Com^  Petjwry. 


A.  D.  175*. 


\m 


h,  thoagh  he  did  not  get  a  shilliog 
dimk  he  would,  he  hates  truth. 

ly  voa  belief e  he  hates  truth.  I  do 
what  yeu  mean.   Is  be  a  sad  rogue  ? 

f  will  fife  him  a  good   oharaoter 

I  knew  hie  wifeP  Is  she  a  sad  wretch 
le  IS  a  sad  body. 

Imi  beast  f — You  bare  guessed  right 
s«D  in  England.    You  give  a  very 

BS. 

haTe  Tou  net  made  it  up  with  him  P — 
iNooght  me  a  forged  note. 

■  atiawP—- No,  Sir. 

Paul  Chapman  sworn. 

M.    I  Kve  at  Ware,  and  hare  done 

■ty  years. 

U6anu.    What  are  you  ? — Chapman, 

Mfclayer. 

I  know  Fortune  Natus?— I  do. 

■  his  character  ? — He  has  a  very  bad 
r.' 

I  think  he  is  to  be  credited  npon  oath  ? 
f«  he  is  not  to  be  belieTed  upon  oath. 

Ime-examined  by  Air.  Willei, 

ODg  has  he  lef\  Ware  ?— I  believe  he 
ITare  three  or  four  years, 
fouseen  him  since  he  left  Ware? — 
m  not  till  now  ;  he  behafed  very  ill 

Thomat  Green  sworn. 

I  live  at  Ware  in  HertPonlshire.  I 
ner.  I  ha?e  lived  there  thirty  vears, 
been  a  house- keeper  almost  as  long. 
mrti.  What  do  you  rent  per  year  ? — 
rent  (MX)/,  per  year. 
tiiianu*  Do  you  know  Fortune  Natus? 
.  I  do. 

is  his  general  character  ? — Really,  in 
uoce,  he  has  a  very  indifferent  one. 

0  be  believed  upon  oatli  ? — I  make  a 
lether  he  is,  I  believe  not. 

■t.  Cihe,  Did  you  ever  hear  him  for- 
naeir?— Green.  No,  I  never  did. 

Cross*  examined. 

ovy.  One  question,  Yes,  or  No :  Do 
ire»  that  in  a  case  where  he  was  not 

1  a  single  shilling,  he  would  perjure 
-^Green,  I  have  reason  to  think  he 
v  any  thing  for  hire. 

KT.  Give  a  reason  why  he  would  say 
p  for  hire.^-Grfe;i.  He  has  never  in> 
,  nor  robbed  roe ;  but  he  was  a  pa- 
of  Ware,  and  he  eloped,  and  left  a 
he  work-hoQse. 

ironXegge.  Is  his  character  so  bad, 
I  wantonly  peijure  himself?— Green, 
lonot  answer  for. 

mw,  H  J  lord,  I  will  now  call  justice 
»r  Id  shefw,  that  Virtue  HalPscon- 
as  taken,  not  is  the  hearing  of  Can- 
Ir.  Whilf  says,  they  were  taken  in 
^f  «f«DO«QOtker. 


Mr.  D&tjf,  This  is  spplyhij|  to  the  jorjr 
matter  foreign  to  the  case.  With  your  \oti> 
ship's  leave,  I  will  say,  the  jury  are  not  to 
know  that  aiieb  a  person  ever  existed  as  VirUM 
Hall. 

Mr.  Morton,  The  jary  are  not  to  take  no- 
tice there  is  such  a  persoD  as  Virtue  Hall  ia 
being ;  but  we  liave  a  right  to  call  what  evi- 
dence she  gave  in  the  court  here.  Yon  havo 
heard  Canning's  evidence,  and  called  the  nai« 
nuter  here  to  prove  it.  If  your  lordship  thinks 
i  bave  no  right  to  call  the  justice  of  the  peace 
to  prove  bhe  gave  her  testimonjr  when  the  par- 
ties accused  were  not  by,  that  is,  when  vUila 
and  Squires  were  not  by ;  I  would  call  justioo 
Tashmaker  to  prove  what  she  said,  who  was  ia 
the  room  when  she  was  examined. 

Mr.  Willet.  I  think  it  would  have  been  ex* 
tremelv  right,  if  Canning's  evidence  was  not 
taken  down  iu  writing. 

3Ir.  Baron  l^egge.  The  perjury  is  assigneil 
upon  the  evidence  she  gave  at  the  Old-Bsiley. 
Tkie  question  is  not.  Who  was  by  when  thede^ 
position  was  made  before  a  justice  of  peaoe  f 
That  is  no- way  in  issue  in  the  case.- 

Mr.  Just.  CUvt,  We  are  of  opinion  it  caa 
be  no  evidence  to  call  justice  Tasb  maker. 

Mr.  j^ore*.  My  lord,  Ezra  Whiffin  swears, 
that  on  the  18tli  of  January  he  was  in  the  room 
where  Canning  was  connned,  to  buy  some 
sign- irons.  We  will  call  the  man  who  painted 
the  sii;;n,  to  shew  that  he  was  not  there  at  the 
time. 

William  Meicalfuworn. 

Metcalf.  I  am  a  glazier,  painter,  and  plum- 
ber, and  five  at  Enfield  highway. 

Mr.  Naret,  Do  you  know  £zra  Whiffin  ?— 
Metcaff',  I  do.  I  remember  1  carried  a  sign 
home  to  his  house,  on  the  8th  of  January  1753, 
Old  Stile,  and  set  it  down  directly  in  my  book. 

Where  is  that  book?— It  is  at  home.  I 
could  easily  have  brought  it,  had  I  had  an  order 
so  to  have  done.  But  I  can  satisfy  you  ano- 
ther way.  I  have  a  pocket-book  in  my  pocket, 
and  1  took  it  from  this  pocket-book,  and  put  it 
in  my  day-book.  (He  produces  the  pocket- 
book.) 

Teiioie,  by  kwking  into  that  book,  the  day 
you  brought  the  sign  home? — It  was  on  the 
8th  of  January,.  O.  H.  I  wrote  this  myself  in 
his  own  house,  with  his  pen  and  ink. 

Upon  your  oath,  is  it  your  own  hand-writ* 
ing  ? — lf\Hm  my  oath,  it  is. 

What  day  was  it,  N .  8  ?_It  was  on  the  19thv 
N.  8.  He  told  me  he  had  spoke  to  one  Mr. 
Jolm  Carrct,  a  blacksmith,  to  make  the  irons 
to  hang  it  upon.  1  went  directly  to  the  bhudc- 
smith,  and  asked  him,  whether  be  had  dona 
them  ?  He  told  me,  he  would  not  do  them  at 
all,  till  such  time  as  Whiffin  bad  paid  what 
was  due  already. 

Did  vou  go  hack  agam  then  to  WbiAn  .^-— 
No.  About  ten  or  fourteen  days  aAer  I  saw 
Whiffin,  and  asked  bim,  if  he  had  got  the 
irons  ?  He  said,  he  had  got  none.  Then  1  saidg 
You  are  f  ery  mvoh  to  bUne  jroa  did  not  go 


591]  n  GEORGE  IL 

down  to  mother  Welb*f«  to  fre  for  ber  booln, 
because  tbey  were  the  tanie  that  the  eigo  buo^ 
upou ;  aod  I  thought  they  might  he  in  the 
Mme  piece  of  wood,  whidi  was  awed  off  wheo 
tbe  M|^n  waK  takeo  dowo. 

Did  he  Mv  lie  hail  been  lor  them  ? — No,  be 
did  not ;  hut  be  aaid  be  would  go. 

Had  be  the  hooka  when  jon  spoke  to  him  ? 
—Thai  1  do  Dot  know.  He  did  not  saj  he  had 
been  at  mother  Wetla's,  or  that  he  bad  ffot  them. 

When  was  it  bung  up  ? — 1  do  not  know,. 

Cross-examined. 

Mr.  WUUi.  The  1753,  which  is  in  black  fi- 
gures, when  was  it  wrote  io  this  book  ?  I  ob- 
■erre  it  to  be  in  adiffereotiok.— Ife/ra^'.  That 
was  wrote  on  Saturday  was  se'noigbt,  I  be- 
liere ;  that  waa  taken  from  the  other  book.  1 
took  that  date  out  of  mv  other  book ;  for  I 
aet  it  down  in  my  pocket-book  without  tbe 
dale  at  first. 

Mr.  Morion.  I  obsenre  io  this,  here  is 
October  17,  do  you  mean  Old  8liieor  New* 
HHile  f^Metcal/  I  mean  Old  Stile.  All  that 
la  set  down,  ia  set  down  by  my  clock. 

Mr.  Morelon,  When  you  made  that  entry, 
did  you  mean  it  according  to  Old  Stile  or  New  ? 
^Melcalf.  To  the  Old. 

Recorder,  Why  did  not  you  brin^r  your 
book  heroF — Meicalf,  I  did  not  know  it  would 
bo  wanted. 

To  her  Character. 
Mr.  3f arsW/ sworn. 
Mr.  MarthalL  1  have  known  Elizabeth 
Canning  the  younger  almost  ever  since  she 
could  go  alone ;  '  since  she  has  grown  up,  she 
has  come  to  my  shop  almost  every  day.  She 
bears  a  very  good  character.  I  never  knew  a 
girl  behave  more  modestly  in  my  life.  I  am 
one  of  her  bail ;  and  it'  I  had  not  believed  her 
to  have  been  entirely  honest,  1  would  not  have 
been  bail  tor  her. 

Cross-examined  by  Mr.  Dary. 

liook  at  this  paper  ;  it  has  your  name  to  it ; 
was  it  done  with  your  consent  ? — It  was  not ; 
but  when  it  was  done,  I  did  not  contradict  it. 

Here  is  an  attestation  of  all  the  facts  she 
has  sworn,  why  did  you  sufi*er  it  to  be  printed  ? 
— I  did  not  contradict  it. 

Did  you  ever  declare  that  you  was  ignorant 
of  the  things  that  you  here  attest  ?— As  to  tbe 
facts,  they  put  my  name  in  to  attest  her  being 
a  harmletia  girl ;  the  contents  1  never  saw, 
till  I  saw  them  in  print. 

You  have  said  here,  **  The  truth  of  tbe  above- 
mentioned  facts,  we,  whose  names  are  under- 
written, being  siso  ready  to  attest*'— Did  you 
ever  take  any  |>ains  to  satisfy  the  world  that 
you  were  not* able  to  attest  these  facts? — I  had 
nothing  to  do  wilh  the  printing  the  papers. 
My  attestation  was  only  to  tell  of  the  girPs  ab- 


Trial  ofEUzabdh  Cmmitigf 


[W 


,  at  tbe  time  of  tbe  trial  of  Wdb  nd  Sfinif 
— 1  have  beard  tbey  were  delivered  aboot,  bit 
I  did  not  do  it.     I  said,  it  waa  a  bad  thugli 

'  diatribate  them  about  then. 


Upon  your  oaUi,  did  you  cooieBt  to  tbe  pib- 
lication  of  it?— Upon  my  oath,  I  did  noL 

Was  your  name  |Hit  to  it  without  your  ma* 
aent  f — ft  waa. 

Recorder.  Did  you  oee  your  name  Io  tbcB, 
before  you  distributed  them  about  f — MartkelL 
Yes,  I  did. 

Mr.  Davy,  Whether  the  intent  of  pnUiik- 
ing  these  papers  was  not  to  inflame  tbo  wtrid 
against  the  gypsey  ?— AfortAatf.  No,  1  be- 
lieve not. 

Mr.  Naret.  Did  jrou  believe  the  truth  of  tkai 
iiapers  that  you  distributed  ? — MarthalL  My 
belief  was,  that  tbe  girl  had  been  ao  long  ■■- 
ing  from  her  friends. 

Mr.  Davy,  I  am  to  tell  the  jury  from  Ai 
prosecutor,  I  have  nothing  againattbe  girfft 
character,  exclusive  of  this  fact. 

Mr.  Nares,  Then  we  need  call  no  WMtn  H 
her  character. 

Mr.  Davy,  I  have  only  to  call  witnemei  to 
the  support  of  Natus's  and  Whiflu'k  cha- 
racters. 


IHd  you  give  any  of  theoe  papera  away  ?— I 
believe  1  did. 
Do  you  know  of  tbeir  being  icatterid  about 


Tuesday,  May  7. 

Mr.  Morton.  We  last  night  finiibod  this 
long  trial  in  behalf  of  the  defendant  I  am 
very  aensible,  that  perhaps,  there  ne?er  waa  a 
case  came  before  a  court  of  justice,  in  which 
it  was  more  proper,  1  hope  1  need  not  any  more 
necessary,  for  some  of  tbe  counsel  concerned 
to  have  made  observations  from  tbe  material 
part  of  the  evidence  given  on  both  aidea. 

That  ia  what  is  the  province  of  a  oouosel, 
to  observe  how  far  our  evidence  answered  tbe 
evidence  given  on  the  behalf  of  tbo  prosecufioor 

It  has  been  ainon^  the  many  misfortunes  of 
the  defendant,  that  it  has  been  impossible  for 
any  one  of  her  counsel  to  have  attended  tbrougli 
this  whole  trial.  Mr.  Williams,  whose  proper 
province  it  was  to  have  replied,  has  necessarilj 
been  absent  during  great  part  of  the  evidence; 
therefore  it  is  impossible  for  him  to  discharge 
his  duty  in  that. 

Jt  has  likewise  been  my  niisfortune  to  be  ab- 
sent, and  it  has  also  been  Mr.  Nares's  roisfbrtUDS 
be  absent,  so  that  we  could  not  attend  upon  that 
part  of  the  evidence.  I  mention  this,  that  I 
may  lay  in  my  claim  with  your  lordship,  wlM> 
has  been  so  very  acute  and  attentive,  that 
whatever  observations  are  proper  to  l>e  made, 
the  jury  may  carry  the  facts  along  with  tliem« 
as  II ell  as  tlie  prosecutor's  charge;  and  thaC 
your  lordship  will  bt*  so  kind  to  supply  what  W9 
have  been  obliged  to  omit.  1  nuke  no  doubt 
but  you  will  do  so,  because  no  greater  accuracy p 
and  no  greater  attention  can  be  shewn,  than 
has  appeared  in  your  lordship  through  tbe 
course  of  this  trial ;  therefore  my  client  wiH 
not  suffer  through  this  absence. 

Recorder.    You  may  aasure  yonrselfca  I 
ly  and  1  hope  yon  mil  be  praeaty  vhca  1 


m] 


J9f  Wilful  and  Ci 


HOB  IV  t»  Ib^  jnrf  |  imd  I  ihall  not  lake  il  in 
llbf  ItftM  atnittto  t^  oiitjnictef},  it  1  ttiake  &Dy 
ttiiiiiiff  wbiJUotfer. 

>lr.  Morel an^  When  otice  ihe  ewe  ii  in 
jDtr  hatitii,  I  mm  rery  sure  it  is  in  safe-hands. 

Ilr.  Dmtu.  I  ilesire  it  may  he  proved  to  the 
mn\  llial  um  dayti  of  the  urfivaJ  of  the  letters 
Wd  disiagiloke,  %te  MonJays,  Wt^daesdays, 
pd  Frida j«- 

Th«mia$  Ratmfi^Ul  agrain. 

Kr,  WUla.   As  you  are  an  officer  in  the 

PM-oiffioe,  yoo  can  tdl   what  days   of  the 

JMdt  lll#  IMMt  comes  into  town  from  Basing- 

^^Bi  i«   hBmpBh'iTit^—RavenhitL     U  comes 

^BlBl   Mttoilays,   VVedoe«days»   and  Friday s» 

'  Hid  am  other  liiiys* 

Crvas-cxamiaed  by  Mr,  Morton* 

Wbat  p«)sl*road  do<!s  it  He  id  f-*-It  conies  in 
^    Porlsifiouth  mail ;     it  is  in  the  wester o 

llic  Portsmouth  ba^  come  through 

alie  ? — I  cannot  tell  that. 

MrTBmfy.     Whether  the  Portsmouth  bii|f 

4am    not   «ome  through    Basiugfstokef    Or, 

_   there  is  not  some   every   dnys  post 

illirou|^h  Basin&r^toke  ?—Ravenhtil,  tJpou 

'  I  CftDDOt  tell,  Basingstoke  ha^  comes 

tiTtltree  days  a  week« 

Mr,  Morton.  That  letter  is  not  proved  ever 
10  hire  been  in  FiafiiDgstoke  post-office ;  it 
fSQItilis  ttjH  to  be  pm red f  that  there  is  an  every 
div^i  post  comes  tnrough  Buisingstoke. 

If  r.  X^dpy.  Do  the  Basinggtoke  letters  ever 
f9«c  Iti  on  any  other  days  besides  Mondays, 
Wtdoc«day8f  and  Fridays  ?—Jl<tv«!nAi7/.  No, 
Ihsy  oome  in  only  on  those  threu  days, 

Hr*  Dftvjf,  When  does  the  Salisbury  post 
ttnt  tn  t^^RttifenhitL  That  comes  in  the  same 

%•• 

(Mr.  Dary  produced  the  almanacks  bock  lo 
tti9i  which  proved  the  19th  of  lauuary  was 
Offer  00  a  Monday,  Wednesday,  or  Friday, 
ibci  Jaoua/y  17#9.  tilL  the  year  1763.] 

Mr,  Willa.  There  is  one  Anne  Johnson, 
wtio  twrars  she  saw  Mary  S<}uires  at  EnAeld- 
Witb  00  the  16th  of  Jaimary  ;  and  she  has 
tvoro,  thai  «he  works  for  Mr,  Smitherani ;  and 
thai  she  earned  home  her  drst  work  for  that 
jHr  Oil  the  16ih  of  January  ;  and  that  her 
iBiitor  conttantly  put  the  work  carried  home 
Uwn  m  a  hpok ;  and  we  have  that  hook  to 
fWff  it  was  carried  home  on  the  SSd  of  Ja- 
tuiwy, 

Thommi  Smiheram  sworn. 

Ur*  Wilt^t^  What  is  your  business  T — 
Ikiika'am*  I  keep  a  honrdiMK-schoot  at  £o* 
Aef4  hiifh-vuv.  and  I  keep  a  shop  likewise. 

'  V  otie  Auiie  JoUosan  to  ipin 

)'-'i    -      ;     ,        IcJid* 

Ii4>r  ^Mu  II  book  in  which  you  set  down  tke 
Oark  as  ii  i*  brought  home  ?^-l  hare  ;  hut  it 
JO  m^^m  ytider  my  tDaftsgismeiiii  I  leavicit 
m  mj  family. 

VOU  XIX. 


A.  D.  1754. 

Do  you,  or  some  of  your  family,  put  dowa 
tbe  time  when  you  deliver  out  work  to  be 
done  ?— Yes,  Sir. 

Do  you  always  put  down  the  lime  when  yoa  i 
have  It  brought  home?— Yes,  Sir;  one  co- I 
lumn  is  to  put  down  the  delivery,  and  the  other  ^ 
when  brought  home  spun*  J 

Look  in  it  to  the  year  1753,  and  tell  whoso  | 
hand -writing  that  first  article  is. — It  Ii  my 
daughter's  band-wriiing ;    her  name  is  Anno  I 

Hulga  : 

I  see  in  it,  here  is  January  16^  one  pound  SL  J 
fine,  delivered. — That  is  the  work  delivered  out.  ' 

Is  there  a  mark  upon  the  first  column  tha4  | 
signifies  it  was  the  time  of  the  delivery  of  it  to 
be  spun  ? — Yes,  here  is  Anne  Johnson's  uan^^  . 
on  tJie  lop. 

Here  is  January  td,  one  pound  S.  fine,  re* 
turned. — That  is  m}'  hand- writing,  the  deliver-^  1 
iiig  out,  but  the  receiving  is  not  mine. 

Was  that  the  same  yam  that  is  returned  ?«-«>  | 
I  take  it  so  to  be.     1  did  not  receive  it  myself. 

Cross -examined  by  Mr.  Morton. 

In  this  last  entry,  is  the  word  *  returned  *  ] 
your  writing  .'—It  is.  i 

When  was  that  word  wrote  ?— The  very  ' 
same  day.  The  reason  of  it  is  this,  I  had 
heard  she  had  sworn  what  she  did,  and  I  I 
looked  in  my  bofik,  and  I  said,  You  are  mis* 
taken  ;  and  the  old  woman  was  so  angry,  she 
brought  home  my  work,  and  would  spin  no 
more  for  me ;  then  I  clapped  that  mark  upon 
it,  *  returned.*     She  return td  it  unBiiished, 

Recorder,  When  you  heaid  what  she  swore 
-«Where  did  she  swear  ? — Smitheram.    Before  j 
the  grand  jury.     She  camt'  to  our  house,  and  j 
I  looked  in  the  book  after  she  had  sworn.     I  j 
said,  You  brought  your  work  home  ou  the  93d| 
aed  you  are  mistaken,  or  to  that  elfect. 

Recorder,  Was  that  yarn  you  delivered  10  I 
ber  on  the  IGth,  the  aaipe  slie  returned  on  th«  I 
USdT'-Smitheram.  I  cannot  tell  that^  it  to  j 
poBsibte  sometimes  they  may  change  it. 

Aid.  Dickinson*  Did  she  return  the  samttj 
weight  ?—iimitkeram,  She  did|  tor  aught  I  ] 
know  ;  I  did  not  take  it  in. 

Anne  Budget  sworn. 

Mr.  Willet.  What  are  you?^HudgeL  I  am  j 
daughter  to  Mr.  is^rnttheratn,  I  generatly  keep 
this  book  ;   it  is  a  day-bouk ;    1  make  marlp 
when  delivered  out  and  when  brought  lionif .      I 

Look  for  Anne  J  oh naon's  account. — The  lirst  j 
entrance  is  my  father's,  and  tJiat  of  tK>m^| 
brought  home  spun  is  mine,  on  the  23d  of  Ja-  j 
puary.  Aft£r  we  heard  she  was  concirned  io  ] 
this  adair,  and  had  sworn  to  the  18ih  day  of  | 
ihe  iDoath,  we  told  her  a  was  the  83d. 

Can  you  recollect  what  time  it  was  that  yon  j 
totd  her  tihe  wai  miiilakrn? — I  c^mnot  tell.         I 

Diti  you  ever  tell  h«r  she  was  urong  ^ — ^<*il 
Sir ;  but  I  heard  my  fattier  tell  her  sp»  ihougll] 
J  was  not  Ml  the  same  room.  ] 

Had  yot)  uo  conv^rfauofi  with  her  9|)Ot|t  ttf  I 
—No.  At. 
1     «Q 


695]. 


97  GEORGE  IL 


Trial  qf  Elizabeth  Canning, 


[596 


Croa- examined  by  Mr.  Morton, 

Did  not  this  wonoan  apply  to  you  to  see  the 
book? — When  she  brought  the  work  bonne 
undone,  she  would  see  the  book  to  see  me  cross 
it  out,  though  she  could  not  read. 

Did  she  ever  applv  to  you  to  see  the  time 
when  she  brought  the  work  borne? — I  do  not 
remember  she  ever  did. 

She  has  sworn  she  did. — ^Very  likely  she 
might,  but  I  do  not  remember  it,  nor  that  she 
did  till  aller  the  time  she  swore  before  the 
grand  jury. 

Do  you  think  she  would  forswear  herself? 
—I  do  qut  know  that  she  would, 

Mr.  Willes.  Did  not  your  father  tell  her  the 
wool  was  not  brought  home  till  the  S3d? — 
HudgeL  Yes,  Sir. 

Mr.  Davy.  My  lord,  we  now  oall  witnesses 
to  the  support  of  the  characters  of  these  two 
people  which  they  have  impeached ;  that  is, 
£zra  W  biffin  and  Fortune  Natus. 

Thomas  Smitheram  again. 

Smitheram.  1  liave  known  Ezra  Whiffin  a 
year  and  a  half. 

Mr.  Willes.  What  is  his  general  character? 
—  Smitheram.  I  never  beard  but  be  was  a  very 
honest  man. 

Cross-enpamined. 

Mr.  Morton.  Have  you  not  known  many 
honest  men  mistaken  in  point  of  time,  at  a 
year's  distance  ?-^Smitheram.  I  do  not  know 
But  I  have. 

John  Barnes  sworn. 

Barnes.  1  am  high  constable  of  Edmonton 
hundred.  }  know  Ezra  Whifiin  very  well, 
and  have  these  three  years  and  a  half;  ne  was 
two  years  a  neighbour  of  mine.  I  believe  him 
a  very  holiest  man. 

John  Smart  sworn. 

Smart.  I  am  an  attorney.  I  knew  Ezra 
lYhiffin  all  the  time  I  lived  at  the  coffee-house 
ni  Enfield. 

Mr.  Willes.  How  long  is  that .'— S/nar^  I 
have  known  him  about  three  years.  1  never 
beard  any  harm  of  his  character. 

Thomas  Bell  sworn. 

Bell.  I  live  at  Waltham-Cross  at  the  Four 
Swans. 

Mr.  Willes,  How  lone  have  vou  known 
Fortune  Natus? — Bell.  I  have  known  him 
about  fiAeen  months ;  he  has  been  a  servant  to 
me  about  thirteen  months. 

Did  you  ever  know  him  before  that?~No, 
(Sir. 

How  has  he  behaved  since  he  worked  for 
you  f — Vi*ry  honestly,  very  civilly,  and  very 
industriously. 

Do  you  look  upon  him  to  be  an  honest  man? 
f-1ndeed  I  do.  He  asnsts  to  brew,  and  goes 
Dot  with  Q  load  of  hay.  He  always  behaved 
very  hMCktly.  When  I  go  out^  if  I  bid  bim 
dosMili  fhiogs,  I  am  loreto  have  Unbi^oim. 


Mr.  Davy.  Do  you  think  be  wonU  fonwear 
himself  ?—BeM.  I  do  not  think  he  wooU. 

Mr.  Willes.  During  the  thirteen  months  he 
has  been  with  you,  has  he  been  faithful  and 
honest  ? — Bell.  During  the  whole  tioae  I  do 
not  know  he  has  told  me  a  lie.  I  have  cupbt 
servants  about  my  house,  and  I  shouki  be  glad 
to  find  the  f<^llow  of  him. 

Mr.  Morton.  The  gentlemen  have  caUed 
some  fresh  evidence  in.  I  do  not  think  to  give 
it  any  answer;  therefore  it  moat  rest  epos 
these  people's  given  testimony. 

Here  the  material  things  are,  to  support  the 
letter  supnosed  to  be  wrote  at  Basingatokfl^  mi 
to  contradict  Anne  Johnson. 

They  endeavour  to  support  the  letter  by  n^ 
duciog  the  man  again  rrom  the  poit  sasiy 
who  tells  you,  the  post  comes  in  only  oo  ■•- 
days,  Wedoesidays,  and  Fridays,  from  BaaM- 
stoke.     Then  they  have  produced  aome  A 


almanacks  to  shew  the  19th  of  Jannary  was 
never  on  a  Monday,  Wednesday,  or  Ffiday, 
since  January  1749,  to  the  date  1759.  Bit 
thej^  have  not  proved  the  letter  waa  pal  io  at 
Basingstoke  yet:  that  remains  to  toe  jory; 
and  the  post-mark,  I  own,  iny  eyes  era  not 
good  enough  to  distinguish.  This  nigbt  have 
been  made  clear»  if  tie  man  that  leeaived  it 
had  been  called ;  and  if  he  bad  ahewed  he  had 
received  that  letter  at  the  time  menlHNied,  that 
wouU  have  carried  up  thia  evideooe,  that  I 
could  have  had  nothing  to  say  against  it ;  bnl 
whether  it  was  ever  put  into  the  oiBoe  at  Ba- 
singstoke or  not,  that  must  be  left  to  the  jny ; 
it  is  a  very  easy  thing  to  have  a  letter  dated^ 
and  it  might  be  the  9th,  or  the  S9th«  still  then 
is  no  conclusion. 

Now,  as  to  contradicting  Anne  Johnaaott 
poor  old  woman.  What  does  she  swear  F  Ska 
swears  she  did  apply  to  theatf  people  to  beset 
right,  and  she  was  uiformed  by  their  book; 
therefore  she  would  have  never  referred  to  thst 
piece  of  evidence,  if  she  had  not  been  roistaksa 
m  what  she  swore ;  it  is  only  a  miatake. 

Now,  after  we  are  done,  I  do  think  it  is  a 
great  misfortune  for  my  client,  that  the  other 
geutleman,  who  should  have  made  a  proper 
reply,  was  obliged  to  attend  elsewhere;  and 
was  I  to  do  it,  I  must  do  it  very  imperfectly ; 
and  so  I  rest  it  in,  your  hands. 

Mr.  Davy.  May  it  please  your  lordahipi 
and  vou  gentlemen  of  the  jury ; 

Aner  so  unusual  a  time  taken  up  in  thia  trials 
T  wish  I  could  dispense  with  givmg  yon  any 
farther  trouble. 

But,  gentlemen,  it  is  my  duty  to  recall  your 
attention  to  the  evidence,  which  was  produced 
to  maintain  this  indictment — to  reply  to  what 
has  been  urged  by  way  of  defence— and  In 
make  such  observations  upon  the  whole,  aa 
may  convince  you,  that  the  evidence  for  the 
prosecution  stsmls  unanswered,  and  is  the  meit 
mdubitable  proof  of  the  defendant's  guilt. 

Before  I  enter  upon  this  undertaking,  wbieht 
I  am  afraid,  will  engage  more  of  your  tioM 
than  would  be  found  necessary,  if  the  < — ^^ 


GeotlemeQ,    wbe»    you    reflect    upon    t!ie 
I  nature  and  circumsfancc's  oC  lire  offence  this 


697]  y&r  mifut  and  Corrupt  Perjury.  A.  D.  1754,  [598 

«f  iNf  proteculiua  ttks  in  abler  tun<l:«   tlian 

ninir.  I  cajiEiot  avoid  isikin*!^  notk-«  of  the  great 

•0*'                 'vith  which  ihU  cause  htis  been  aU  I  womaa  stands  accused  of, — together  tWth  lh( 

rr*  I              rid.     For,  aiUioutfb  five  bn^  days  iiurposts  it  waa  intended  to  serte, — ihe  iUlneW 

|i«fc  beeit  «in|dtiyH  in  thii  inquiry,  yet  hath  ,  of  the  evidence  [in^duced  to  prove  it, — and  tb( 

ti«t  ibe  lettJ^t  hint  of  iiDfiattenve  droppedi  either  weak,  if  not  ihe  wicked,  defence  atleinpted  in. 

IfMD  liie  Caun«  or  the  jury 


Til  the  Itononr  of  this  country  be  it  remeni' 

Iciwl,   its  judges  always  aihntni&ter  imparlia 

jtecticir   ufMo  the  most  dehheiate  ami  careful 

ciL«i'  i  ;  and  never  tlnok  any  time  tots - 

•(»»  '   may  conduce  to  the  diacorery  of 

truHi.       i  iure  wai  indeed  a  particular  neces- 

for  a  tery  aolen^n  exannntiUfin  in  the  pre* 

e,  tNN»use  this  was  become  au  ariWir, 

T  great  titiportance  and  public  expec- 

iit  also  of  no  less  intricacy  and  difii- 

cully, — ari«ng,  not  fco  mucli  from  ilie  nature 

•Clh-^  QUfvtion,  as  from  the  clouds  of  darkness 

it*  '    wa«  inveioped   by   those^   who, 

Tb^  < I jo^itioD  to  the  prosecutor,  adopted 

lliacTiiMt/l  perjury,  and  formed  a  faction  to 

iUMAttil 

But  aiicb  ia  the  ft^rce  of  truth,  and  so  strongly 
ilaei  ii  thine  torib  in  this  prosecution,  that  its 
•fpiHefi  mast  now  hide  their  faces,  and  re- 
inef  mill  ihame,  that  they  have  contaminated 
llMfD^Hra  Mith  the  guilt  which  they  are  no 
lender  able  to  conceat* 

Gtnttemeo,  as  in  the  outset  of  this  cause  1 

ienrfrd  you  to  dife«t  yourselves  of  all   preju- 

fl<t?>.  \*ltit!i    \  <ni  might  have  receired  in  the 

r  ;  so  now,  out  of  humanity, 

vou  aiffiinst  fallitig  inin  the 

on  the  other  side,  on  account  of  some 

Bta   which   liafe  happenHl   during  the 

lofthiatrial. 

?  iofoleijce  of  mobs  about  this  court,  at- 
'  over- awe  and  iiitioiidate  justice, 
b«erted,and  some  of  you  have  felt. 
nnijgu  I  lie  design  of  these  outrages  was 
ily  discovered,  yet  it  would  be  very  hard 
'  *uch  cakbcbaviour,  however  occa^^ioned, 
idd  atTect  tbe  unhappy  person  at  the  bar. 
I  hM  caougli  to  depress  her,  without  the 
ilonil  load  of  others  guilt ;  and  God  forbid 
edbonld  attempt  to  call  in  the  aid  of  preju- 
i  t^init  her  !  We  desire  this  cause  may  he 
d  lingly  upon  its  owd  merits,  and  that  there 
^■^  be  no  ingredient  id  your  consideration, 
1  kl  what  fairly  results  from  the  evidence  on 
[  iilk  siilfa. 

¥ott  will  take  care,  for  yoar  own  sakes,  to 
'  fittkarge  ^our  doty  ai  jurymen,  considering 
^  ftr  ob(tgatioo  upon  your  conscience,  the  no- 
aH  thtt  oauae,  and  the  freedom  with 
iM»  wiH  hereafter  deliver  their  scnti- 
oouoemtnir  it.  You  will  consider,  the 
I  of  the  world  are  now  upon  you  ;  and  the 
Ofttances  of  ibii  cause  are  so  peculiar, 
bare  1>cco  so  much  the  subject  of  con* 
fr*v.  that  l!ie  hiitf>rv  of  thiit  transaction 
Li^ngtish  languacre 
lit  j  iti  not,  your  ftt'riouR 

1  aekinn  lirtcrmination,  upon  thia  imporianl 
00,  <nrill  answer  ttie  eudft  of  justice*  will 


Cl9  youndtc^. 


answer  to  it;  you  wilt  he  fully  saii^tied,  how 
much  it  concerus  the  public  to  bring  thi»  de- 
linquent to  justice. 

Of  all  the  crimes  the  human  heart  can  con* 
ceive,  perjury  is  the  most  impioua  and  detes- 
table. But  the  guilt  of  this  person  is  so  tran- 
scendent, that  it  seeius  even  to  defy  ag-gra* 
VBtion. 

To  call  upon  the  God  of  truth  in  the  most 
sfdemn  manner,  and   upnn  the  most  awful  no* 
casioDt  to  attest  a  (iilsbood — to  imprecate  tho  j 
venijeftnce  of  heaven  upno  her  guilrv  hf ad—  ^ 
(o  prostitute  ihe  law  Ol'  the  land  to  the  vilest 
purpose->'to  triumph  in  the  ruin  of  an  iimo« 
ccDt   fellow   creature — to   c«>mmit   a    murder  i 
With  the  swoni  of  justice  ;— and  then,  having 
stripped  her  own  heart  of  humanity,  by  all  tli« 
aris  of  hypocrisy  to  ioMnuate  her^lfinlo  tlie 
compassion  of  others,  is  the  peauliar  sin  of  this 
person,  not  yet  twenty  years  of  age  ! 

One  woufd  wonder,  indeed,  at  the  folly  of  a« 
attempt  to  impose  so  gross,  so  absurd  a  fala- 
hood  upon  the  wOrld,  if  tre  did  oot  hve  in  an  ^ 
age  wherein  nothing  is  too  incredible  and  fan- 
tnslical  to  be  well  received. — Let  it  be  but  ^  ] 
novelty,  and  a  subject  of  admiration,  and  if 
caunot  fail  to  make  its  way  with  the  bulk»  tht 
most  ignorant  part,  of  mankind. 

How   tliis  strange  story  obtained  credit  so 
for  as  to  prevail  with  a  jury  to  convict  two  in- 
Docenl  women,  you  have  seen  in  the  courst  , 
of  this  trial.    For  that  there  was  false  evidence  ] 
given  in  that  cause  by  one  witness  at  least,  ap* 
pears  now  confessed  even  by  bis  own  testimony,  ' 
:!?Scarrat  (of  ^vhom   I  shall   have  occasion  to  ^ 
speak  more  herea tier)  swore  upon  the  trial  of  | 
Si^uires,  that  Caoning^H  information  before  al- 
ii erman  Chitty  thoroughly  eon*esponded  with  i 
her  then  evidence :  but  he  now  owns,  he  doet  ' 
not  know  what  account  she  gave  before  the  \ 
alderman  ;  and,  upon  his  best  recollection,  bo  i 
admits,  in  effect,  that  her  information  to  Mr. 
Chitty  was,  in  many  respects,  ditlereut  from 
her  evidence  upon  the  trial.    And  yet  tliis  wiif 
one  of  the  most  material  questions  in  the  whult 
caupe. 

ft  ii  no  wonder,  therefore,  that  thla  fltoty^J 
with  all  its  absurdities,  so  supported  by  preju-  < 
tlice  and  perjuvy,  obtained  belief*     And|  tliat 
it  was  not  fatal  to  the  ooor  wretch  destined  for 
a  sacrifice,  was  entirely  owing  to  tbe  interpo- 
sition of  a  magistrate,  whose  only  motive  to  it  J 
was  compassion,  whose  only  reward  ihe  bit-  ' 
teresl  invectivea. 

Gentlemen,  in  this  indictment  there  are 
many  assignments  of  perjury,  as  there  are  cir- 
cumsrances  in  the  delendant*i  evidence,  frotti 
the  time  of  the  pretended  robbery  in  nloor- 
tirbls ;  ao  that,  if  anv  part  of  her  relation  if  * 
faUe,  she  is  guilty  oV  per  jury  w  ithin  this  in- 


gmily  tbe  onifarual  curirotity^  and  will  prove    diciment.     However,  vte  do  not  mean  to  cavfl^ 


and  catch  at  little  circumstancei  ^  for  the  proofs  ! 


1199} 


27  GCOROfi  II. 


Tridt  of  ElikahHh  Canmngi 


[601 


we  have  oifWed  are  sufficient  to  satisfy  all 
Aankiml,  that  the  whofe  of  this  story  is  a 
fiction  from  the  beffinuing  to  the  end. 

Gentlemen,  as  this  was  a  case  of  unirersal 
inqairy,  the  prosecutor  was  desirous  of  ffiTing 
8(11  the  satisfaction  in  his  power:  for  though 
the  indubitable  evidence  of  the  gypsey's  inno- 
cence, without  any  farther  proof,  would  have 
been  sufficient  to  justify  his  own  conduct,  and 
to  convict  the  defendant,  yet  his  regard  for  ttie 
]^ublic  called  upon  him  to  detect  the  whole  im- 
postore ;  and,  if  possible,  to  put  an  end  to  iHI 
the  disputes  and  troubles,  to  which  this  mys- 
terious transaction  hath  given  rise. 
'  To  ansWer  these  purposes  effecfnallv,  fhere 
bkth  been  a  great  variety  of  proof  laidf  before 

f'  ou,  nnder  several  heads  of  evidence ;  of  which 
will  beg  leave  to  remind  you,  in  the  order 
they  were  given. 

Our  first' head  of  proof  was  to  the  afilii  of 
Aary  Sqilires. 

With  regard  to  this,  and  the  answer  at- 
^mpted  to  be  given  to  it  by  the  defendant's 
witnesses,  you  will  be  pleased  to  recollect  the 
Certainty  or  incertainty  of  the  evidence  on  both 
sides,  as  to  the  identity  of  the  persons  sworn  to, 
ind  the  exactness  or  the  times  in  which  the 
witnesses  swear  to  have  seen  them.  For  a 
mistake  in  either  of  these  matters  will  account 
for  a  variance  in  the  testimony,  without  im- 
peaching the  credit  of  the  witnesses,  which  I 
am  always  willing,  as  far  as  I  can,  to  avoid. 

In  the  first  place,  as  to  the  identity  of  Mary 
Squires. 

She  is  not  only  so  extremely  remarkable,  that 
it  is  almost  impossible  to  mistake  her  for  ano- 
ther, but  several  of  the  witnesses  for  the  pro- 
secution have  known  her  a  considerable  tnnc, 
from  two  to  thirty  years  past,  and  have  often 
seen  her  :  it  is  impossible,  therefore,  for  these 
people  to  mistake  with  re^rard  to  this  person ; 
and  if  they  did  not  see  this  very  woman,  they 
are  certainly  guilty  of  |>erjury.  Besides,  the 
witnesses  for  the  crown  swear  not  only  to  the 
old  woman,  but  likewise  to  hi-r  son  and 
daughter,  for  they  were  seen  all  together 
through  the  whole  journey  ;  by  which  means 
they  are  less  liable  to  mistake,  than  the  wit- 
nesses for  the  defendant. 

Are  all  the  witnesses  to  this  head  of  proof, 
forty.one  in  number,  wilfully  and  corruptly 
forsworn  ? 

Through  the  whole  of  this  cause,  hath  the 
least  reflection  been  thrown  upon  the  cha- 
racter of  any  one  of  them  ? 

flas  it  been  even  suggested,  that  they  have 
any  interest  to  serve,  or  any  pas&ion  to  gratify, 
which  could  lead  them  to  so  much  wickedness 
and  danger  ? 

Are  they  not  strangers  to  the  defendant,  and 
most  of  them  to  one  another,  living  at  remote 
distances  ? 

They  have  all  been  separately  examined; 
anil  I  refer  to  your  own  observation,  whether 
efiectual  cure  has  not  been  taken  to  prevent 
any  communication  between  them,  so  as  that 
DO  one  witness  could  possibly  know  another's 
testimony. 


And  yet  what  an  amazing  congmity  is  thei 
in  the  whole  of  their  evidence ! — ^Not  a  mite 
rial  circumstance  varied  froiA ! — But  the  test: 
mony  of  each  witness  corresponds  so  exacti 
with  what  went  before  it,  that  it  demanc 
credit,  and  authenticates  thO  evidence  of  tl 
former. 

Consider  too  the  variety  and  weight  of  tl 
circumstances  sworn  to,  and  the  correspoi 
dency  of  events  happening  in  consequence  i 
them.  The  dancuig  at  Abbotsbury, — the  fidli 
there, — who  and  who  were  partners,— tho  wi 
niffht  at  Portersham, — the  heavy  rains  thi 
feu  the  next  day,  and  the  waters  being  out  ( 
Dorchester,,  two  days  after. 

How  notorious  are  these  facts,  and  how  <irf( 
disproved,  if  false ! 

-  Was  it  ever  known,  that  any  nomte  « 
"false  witnesses  pre-concerted  circanastaBOi 
which  ten  thousand  people  were  capable  c 
contradicting  ? 

Is  it  conceivable,  that  there  should  be  a  pa 
feet  harmony  in  the  evidence  of  such  a  nninbi 
of  perjured  witnesses,  concurring  in  circan 
stances  of  public  notoriety  P 

Then  the  parting  with  Clarke  at  Ridgwaj 
—the  piece  of  nankeen  pawned  with  the  hmd 
lord  for  a  reckoning,  ana  produced  in  evideoc 
with  the  man's  name  upon  it, — the  sVinniDj 
the  dead  horse,  mentioned  b^  several  witnessa 
— the  letter  from  Lucy  Squires  at  Basingstoke 
alluding  to  the  particulars,  of  the  journey  witl 
Clarke,  and  to  the  weather,  *'  hoping  be  re 
ceived  no  illness  from  it," — 

Were  these  circumstances  all  pre-concerted 
or  did  they  really  happen  At  some  otlier  time 
than  that  to  which  they  have  been  applied  b; 
the  witnesses  ? 

Examine  then  into  the  certainty  of  the  eri 
dence  with  regard  to  time. 

Besides  the  impossibility,  that  all  the  wit 
nesses,  spi^uking  with  such  absolute  certainty 
and  rcferriu^  to  collateral  matters  incapable  o 
misleading  them,  should  mistake  in  this  re 
spect ;  there  are  two  facts  before  you,  whicl 
prove  the  times  of  the  gypsies  being  at  Abbott 
burv  and  Basingstoke  to  demonstration. 

I'he  time,  referred  to  by  the  Abbotsbon 
witnesses,  is  ascertained  by  the  books  belong 
inpr  to  the  Excise-office.  Every  ooeknowi 
with  what  preciseness  these  books  are  kept,*- 
that  not  only  the  days,  but  the  very  boors  si 
each  officer's  visits,  are  regularly  entered  if 
his  accounts ; — that  all  his  acts  and  entries irt 
scrutinized  and  chequed  by  a  supervisor,— IbJ 
the  books  transmitt«M!  to  the  General  'ExaUt 
office  in  London. 

Now  the  book  of  January  1758,  belongisl 
to  the  Excise  at  Ablwtsbury,*  has  been  produced 
in  evidence  from  the  General  Excise- office; 
by  which  it  appt^rs,  that  Andrew  Wake  wa 
placed  at  Abbotshury  in  the  r(K>m  of  Ward,  ibi 
officer  stationed  there,  who  was  ill  and  iacSBt 
hie  of  duty ;  and  that  Wake  bej^fan  toofficnft 
in  the  Excise-office  at  Abbotshury  on  the  Ifti 
January,  and  continued  to  the  14(h. 

Wake  sweiirs,  and  is  confirmed  in  itbyt 
I  the  witnesses  from  Abbotshury,  that  Ift  CUk 


Wlllt  Cr 


Tbtl> 

Marr'tK^  i 


f>r  Wilfitl  dfid  Corrupt  Perjury.  A.  0.  17^4*1  f 60i 

my  ban^,  wbicb  I  d^sir^  yf>\i  wfff  t^Klmioe 
yourselveK;  and  by  tbeiti  tt  Jippearic,  ibat  n6' 
19tb  of  JaniiarVf  si»ce  Janaary  1749, 1ia«  Uwp^ 
pentd  opon  ii  Monday »  VVednesday,  (»r  fVidfty^ 
e^ccept  iu  1753,  when  it  buppened  on  ii  Friday  % 
ind  by  the  fbrcc  fig^tire^,  whicii  reoinui  in  ihti 
letter,  ihc  yearns  date  mast  be  either  tlbO^  5|. 
51,  53 »  or  i*. 

To  thin  circifrmfance  von  will  be  pleased  to 
add  another^ — ibttt  rvtl  (he  witnesses  meatioQ 
the  days  of  the  neet,  a«  well  as  the  dnys  of 
the  mouth ;  and  If  you  trace  them  in  all  theif 
teatimony,  from  Fridav  the  59ih  of  Dt^cember. 
at  South- Parrot,  to  ^Vedncsday  the  'Mth  or 
January,  ai  En*:e!d-VV4iih,  you  w\\{  find  the 
whole  evidence  rr fers  to  the  gypsies  \m\\^  at 
Basin^jfltoke  on  Thursday  the  18th  of  January, 

Thia  obiiervation  nill  entirety  remofe  ifio 
only  doubt  of  tire  po^t-officer,  whether  the 
poat-mark  is  the  l9tb  or  29tb  of  January.  For 
the  days  of  the  week,  aworn  to  by  all  the  wit- 
nesses, correspond  exactly  to  their  being  at 
Baiingstobe  on  a  Thursdny ;  and  the  At  ma* 
nackawill  infortnyoa,  that  the  29th  of  January 
baa  not  happened  on  a  Friday  for  several  years 

pBJ9t, 

From  all  which  ft  appears,  that  Che  witneatei 
are  as  hitle  tinbfe  to  miainke  in  point  of  time|  ai 
i o  rrtpcc t  of  1  h e  pt' rscrn  o f  M a ry  Si^u  i res .  And 
therefore,  upon  the  whole  of  ibis  evidence.  I 
will  venture  to  say,  no  man  livinff  can  doubl 
that  these  gypsies  were  at  Abbol3jury  on  the 
1st  of  January. 

For,  through  the  whole  chain  ofe?tdenceto 
proTe  it,  f  appeal  to  your  own  observatioUi 
whether  all  the  circumstances  have  not  been 
supported  bv  ibe  bt^i^t  testimony  and  the  eiearett 
proofs,  in  their  nature  they  are  capable  of  re- 
ceiving f  And  whether  it  wouhl  notbeaa  un- 
reasonable for  one  to  doubt  the  fact  they  coo- 
duce  to  prove,  a»  it  ivonid  be  tu  believe  the 
story  they  are  lutended  to  contradict? 

8urely  there  never  was  such  a  variety  of 
circumstances  so  clearly  and  couipletely  provetl 
in  any  case, — surely  tnere  never  was  a  caatt 
standing  so  liitle  in  need  of  it! 

But,  Bufficiei^t  as  it  ma^*^  be  thought  f(\f  the 
defendant's  convicliun,  this  is  far  from  bein^ 
the  best  part  of  the  case.  For  though  this  fully 
proves  the  defendant  was  not  robbed  by  Mary 
SMHiires,  y«t  it  groen  no  farlher,  But  the  rest 
of  the  evidence  for  the  crown  entirely  orer- 
I brows  the  depend unt^s  whole  story,  and  evinces,^ 
to  the  utmost  degree  of  certainty « that  she  is  an, 
iiiipostress. 

To  the  evidence  of  Mr*  Alilerman  ChittVt 
Mr,  Nash,  Mr  Aldridge,  «nd  Mr.  ttague,  vou^lt 
be  pfeasL'd  to  apply  an  observation ,  I  tooK  thii 
liberty  to  mention  in  the  opening,  and  which  I 
apprehend  to  be  very  reaMinalde,  That,  If  the 
dtiendiint  was  re:illy  confined  in  this  room  at 
U'dls't!  tirenty- eight  days,  there  being  hghl 
cnotiijh  to  ifeevcrjjf  part  of  it,  she  could  uo^J 
pnsiiibly  fail  of  giving  an  e%acl  description  Of  1 
it  *,  iniich  lets  could  she  mention  thin^  thafc] 
were  not  there. 

Now  the  accooot  she  gave,  before  ahc  iff^al 


It^  Gibbon t's  house,  to  officiate  as  exciseman 
in  Che  room  of  Ward^  ou  the  very  day  the 
fyoiies  came  there. 

Hete  thtn  Is  no  possibility  of  mistake;   and 
if  the  A  witneises  are  perjured,  all 

ibe  revt  '  ie^<^es  roust  be  So  loo  ;   for 

the  wht^le  tjiri  v«  to  the  ionniey  from 

Svtftb-Parrot  i  ^^\fyt  avd  from  Abbots- 

biirj  to  Enficid  \SAi,\\  *  and  all  the  facta  sworn 
trt  mre  hice  ao  many  links  of  a  chain,  depending 
6ae  upou  another* 

fl  lA  ttli^  remarkable,  that  this  very  John 

CHiCMiia,  who  ha.1  now  given  evidence  of  this 

lkef«  wwi  pr<jduced  as  a  witness  upon  the  trial 

af  M —   ^:-ires  in  February  1763 ;    and  be 

tbt  same  evidence  he  has  given  now  ; 

laU  V-  >.  ^nif.  circumstance  relating  ta  the 

.eing  asked  on  that  trial,  by 

■  he  recollected  the  day  of 

Mg  to  Abbohbury,  this  was 

i  nere  came  an  exciseman,  one 

Amfirtw  Wicka  or  Weeks,  to  officiate  there  for 

aoe  loha  Wnrd,  who  was  sick,  and  I  put  the 

fcytfr  <!oWn  when  he  came  there ^ 

Ibrtlrr  r  eis  kept  at  my  house." 

Il  es  also  observable,  that  Gibbons  was  Iw- 
ilieinl  fur  perjury  in  that  evidence.  What 
kii    '  i^iieasof  truth  couhl  now  en- 

tf^i  ^teat  the  same  evidence,  and 

run  tj.t-  lui/.uni  III  a  second  proaccufioa  f 

Another  circumstance  equally  demonstrates 

ibt  litne  f'<   ♦^'^  "gypsies  being  al  tScisinn^stoke, 

there  by  the  witness,  Mrs. 

v|uires  to"  Clarke,  bears  date 

My,  and  she  swears  that «« as 

'        !  u  was  written. 

On  the  outMite  there  appears  the  mark  of  the 

Generml  Post -Office,  tn   London;  und  if  this 

Inter  went  from  Basingstoke  on  the  18th,  it 

mm  come  to  l^ondon  on  the  I9lh,  for  there  ts 

Ms  pogt-road  frum  Btising^toke  to  Abbotiibury, 

bit  bv  way  of  London.     But  the  post-  mark 

fi-T '  \       ■  I  y  legible,  the  clerk  of  the  ^testem 

fij  ng  to  the  General  Post-office,  is 

^Jifii  !<•  i;i»vir  up  this  malttr* 

UetelU  you,  that  the  poet  comes  In  from 
Bifbgvtokc   on  no  other  days,   but  Monday, 
'*'*'    day,  and  Friday; — that  by  the  nicest 
ion  li*»  iH  uhlf-  iiv  uiake  (and  he  produces 
fUonps  '^  to  the  post^ofiicc  to 

hU  oil  ij^  this  letter  came  into 

Ion  on  the  19tb  or  39 ih  of  January,  and 
lirfivpt  y<^n  his  reasons  for  saying  so.  The 
^■'  '     '^»en  fs,  a«i  to  the  year; 

^r  .^  loto  off,  there  being 

^f  Inures   176-,  the  counsel  for  the 

<!'!  ve  thought  fit  to  rely  up<in  it  as'  a 

capital  uhjtcn  mating  as  if  tt  had  been 

ttnsoffOQpii  riiiteadvou;  but  at  the 

lame  time  iUl-v  nnnut,  that  it  the  whole  date 
had  appeared  perfectly,  the  fact  intended  to  lie 
^roftd  hy  it  would  have  concluded  irresistibly 
8pOD  thetn. 

Now  it  happens  very  furliiOHtely,  tltst  this 

defect  can  w*  supplied  bv  aiiothcr  evidence, 

Which  proves  itself;  and  that  is  the  Almanack. 

1  kan  wM  tha  Aimatiicks  tince  1749  now  to 


60S] 


97  GEORGE  IL 


Trial  qfEllzabetk  Canning, 


[fl04 


carried  down  to  Enfield  on  the  Ist  of  February, 
is  liable  to  objection  both  in  respect  to  its  de- 
fectiTcness,  and  its  falsity. 

To  try  the  troth  of  any  relation,  when  its 
authenticity  most  depend  upon  the  credit  of 
the  relator,  we  should  inquire,  whether  at  all 
times,  in  all  places,  and  upon  all  occasions,  he 
tells  the  same  story,  with  all  its  circumstances, 
in  the  same  uniform,  invariable  manner. 

The  gentlemen  of  counsel  for  the  defendant, 
aware  of  the  force  of  this  observation,  hare, 
with  ^at  judgment,  endeavoured  to  apply  it 
in  their  client's  favour,  in  respect  to  some  few 
particulars  pretended  (but  far  from  being  suffi- 
ciently proved)  to  have  been  described  by  her, 
upon  the  29th  of  January  at  her  mother's,  and 
upon  the  Ist  of  February,  with  regard  to  the 
prospect  from  the  uindow. 

In  the  first  place,  her  description  is  extremely 
defective. 

When  she  was  asked  by  Mr.  Alderman  Chitty 
to  enumerate  all  the  particulars  in  the  room, 
by  which  her  veracity  was  to  be  tried,  and 
when  it  so  much  concerned  her  to  recol- 
lect the  whole,  she  omitted  several  material 
things,  which  conM  not  possibly  escape  her 
observation  for  a  whole  month  together.  The 
jack-line  and  pulley,  and  the  broken  casement 
over  the  chimney,  entirely  forgot.  The  three 
•addles  are  not  one  of  them  mentioneil, — nor 
the  chest  of  drawers.  And,  instead  of  men- 
tioning half  a  load  of  hay,  she  in  effect  denied 
there  was  any;  for  part  of  her  complaint, 
which  melted  the  hearts  of  her  friends,  as  they 
themselves  have  sii^orn,  was  the  want  of  any 
thing,  but  the  cold,  bare  floor  to  lie  upon. 

Can  it  he  pretended,  that  any  alteration  had 
been  made,  between  the  time  of  her  pretended 
»  escape,  and  her  going  there  again  in  three  days 
after?  On  the  contrary,  is  it  not  fully  proved, 
that  all  these  filings  had  been  there,  unmolest- 
ed, for  a  very  long  time?  Had  they  not  marks 
of  antiquity,— marks  which  could  not  be  made, 
but  by  Providence  itself,  or  by  the  creatures  he 
formed  for  the  purpose  ?  When  the  chest  of 
drawers  was  removed,  in  order  to  see  if  it  had 
been  newly  put  there,  it  rended  from  the  wall  a 
thousand  cobwebs,  covered  with  dust. 

The  same  observation  occurred,  upon  re- 
moving the  broken  casement  from    off  the 
f    chimney  ledge;— that  also  appeared  to  have 
i>een  fixed  there  by  many  generations  of  spiders. 

And  it  is  remarkable,  that  ttie  defendant  her- 
self was  so  struck  with  the  force  of  these  ob- 
jections, and  found  herself  so  much  in  dancer 
of  immediate  detection,  that  she  then  pretended 
to  recollect  some  of  the  things, — particularly 
one  of  the  saddles,  which  you  are  to  suppose 
•he  iHid  forgot. 

This  proves,  at  least,  that  the  things  had  not 
been  put  there  to  deceive  her.  And  to  satisfy 
you  that  her  not  having  mentioned  them  in 
ber  information  did  not  proceed  from  hurry  or 
surprize,  Mr.  Alderman  Chitty  swears,  she  was 
under  examination  above  an  hour,  with  all  her 
friends,  and  none  else  about  her; — and  that 
•Aev  rtoomiting  all  the  parttoaUrt  sh«  thought 


fit  to  mention,  she,  apprized  of  the  danger  of 
omitting  any  thing,  was  again  asked,  **  Whe- 
ther there  was  any  thing  else  in  the  room  f^ 
To  which  she  coolly  and  deliberately  answered, 
"  Nothing  but  the  things  in  the  paper." 

But  what  excuse  soever  may  be  invented 
for  the  defectiveness  of  her  description,  who 
can  acconnt  for^its  falsity  ?  How  came  nhe 
to  swear  to  an  oRr  alool  or  two,  an  ol«l  table,  old 
pictures  over  the  chimney,  and  a  grate  in  the 
chimney  P 

Is  it  not  most  certain,  none  of  these  thing! 
were,  or  had  been,  in  the  room  P  The  proofs.  tMt 
some  of  them  had  not,  are  so  strong,  andor  auch 
a  nature,  that  one  is  tempted  to  say,  The  finger 
of  God  points  out  the  discovery  of  thin  im- 
posture. 

Had  this  woman  been  once  in  this  roi, 
even  five  minutes  together,  could  she  jpoeHlly 
have  mistaken  it  for  a  little,  square,  dark  roooK 
She  might  as  well  have  called  it  an  amphi- 
theatre, or  a  ship ;  for  no  description  could  bn 
more  unlike.  And  yet,  ^ou  must  either  think 
she  was  actually  there  with  her  eyes  open,  light 
shining  through  two  windows  and  a  thousand 
holes,  and  a  month's  leisure  for  observation,  or 
else  that  she  is  guilty  of  perjury.  For  no  cha- 
rity can  impute  all  this  to  mistake. 

Gentlemen,  the  pretended  manner  of  her 
escape  is  another  proof  of  her  guilt. 

At  first  she  swore  she  escafied,  **  by  making 
a  hole,  and  removing  a  pane  of  glasa,  and  so 
sliding  down  over  a  pent  house."  But  when 
she  afterwards  went  down  to  make  obaerva* 
tions,  seeing  the  wall  perpendicular  from  both 
windows,  and  that  there  was  no  pent-  honsn  or 
shed  near  it,  she  cut  the  knot  she  could  not 
untie,  and  boldly  swore,  **  she  jumped  out  of 
the  window." 

Was  there  no  other  evidence  in  the  cause, 
this  alone  would  be  sufficient  to  falsify  her 
whole  story. 

But  she  was  so  unlucky,  as  to  give  still  fur- 
ther proofs  of  her  own  guilt ;  and  not  only  co:i- 
tradicted  herself,  but  aided  the  detection  of  her 
mother's  evidence. 

Her  account  of  being  carried  between  two 
men,  one  at  each  arm,  through  Bishopsgate- 
street,  is  totally  irreconcilable  with  her  being 
stunned  by  a  blow  in  Moorfields,  which  '*  threw 
her  into  a  fit,  wherein  she  remained  insansibl» 
for  four  hours  after." 

The  mother  had  advertised  her  being  heard 
to  scream  in  Bishopsgate- street. 

Is  it  not  marvellous  that  Bishopsgate-streei 
should  be  mentioned  by  both  mother  and  daugh- 
ter upon  the  same  occasion,  when  they  had  not 
seen  each  other,  and  this  too  merely  by  thn 
force  of  imaj^ination !  For  the  daughter,  yoo 
see,  had  no  foundation  for  saying  it ;  and  what 
led  the  mother  to  it,  I  shall  i^peak  of,  when  I 
come  to  observe  upon  ber  evidence. 

The  multiplying  four,  fi?e,  or  six  pieces  of 
bread,  into  four-and-twenty,  will  not  be  thought 
a  trifling  mistake,  when  we  are  tracing  tl^ 
several  marks  of  faUhooil,  to  detc^  to  stranft 
a  tale. 


606] 


fir  Wiljid  and  Corntpt  Perjuri/, 


A.  D.  17S4. 


[606 


Wbi^ft  iiliQ  ippHed  for  n  H-arnint  ag^ainst  the 
WOniAii  nlia  HaiJ  tnkeii  Iter  sta^k^  did  eihe  g'ive 
WKf  ilvMription  of  Miir\  S<]ture«,  wlio,  you  hce^ 
ii  tnnrLeil  <i<j.  fm  Id  di»litii^u)i^h  hf  r  from  all  the 
f^*i  ti  ?    The  defendant  had  toliJ 

li«r  ;i  the  heAriu^  of  honest  Hilr^ 

HcMmx,  who   bad  been  nrquninted  willi  Mrs. 
WclU»  but  ilfd  tiol  discover,  by  any  descriptioti 
«f  I  be  cltfeodaufH,   thai   Wells  was  not  the 
who  had  robbed  ber.     For  Scarrat  ivaa 
It,  when  a  warrant  was  granted  against 
'elis  for  »he  telony  * 

hy  i*b«t  name  \y{\\  you  call  him,  if  he  knew 
tbtt  lo  be  a  mictake,  without  attettipting  to  rec- 
tify it  ? 

Qttft  of  her  own  witnesses  ptoreB,  that  when 

ibft  wasgoini^  up  the  f^retU  siair-case,  she  said» 

•*  'Hkfve  *re  the  stali-s  up  which  1  was  carrie<l." 

Thii  mM%  Alter  she  had  been  in  the  kitchen  \ 

far  tikcy  all  agree  she  was  first  carried  into  the 

kilcWfii  Utit  look  no  notit'e  there,  titat  it  waa 

tW |lm  wherein  she  had  been  robbed  of  her 

Mtv«|  or  that  it  wan  contiy^uous  to  the  room  in 

•liirb  i4e  had  baen  confined, — They  all  agree 

Mtnriie,  Out  «be  went  up  the  ^real  staii-case 

ioto  all  the  rooms  of  the  house  to  which  it  led, 

vrnb^Mit  the   kast   intimaliun^  that  the  room 

.!«  upon  »  tovi^er  floor,  and  but  sin 

♦rora  the  (rroond, 

icna^ioar  upon  this  ocrnsiou  atag'gercd 

faith   of  her  Incnd    Adami!)«(n.     Even  he 

*-'   *  -»  strange  mistake, 

f  !,  the  next  evidence  we  troubled 

joij     .  :i,      1^  out  of  her  own  month.     That 

irilM9a«  though   unfit   to  lie  t^'lieved    in  any 

Iktnif  flse.  may  fiiirly  eoon^h  be  ailmitled  to 

£M>  <v   aj^Ainst  liPi'&elf;    for  the  best 

tit  uce  is  confe»aion* 

Iktorv  Mr.  Atdf  rman  Chitty  ^he  swore,  she 
IM  fiAi  ilrwnk  up  all  the  water,  e^en  at  her 
^1  V ,  but  ietl  Sonne  of  it  behind  her. 

t  Pielding'  she  swore,  bbe  drank  it 

•P  V  riday. 

I  rt  hhe  swore,  that  she  drank  up 

lb«  »»j«4  iiiirji  about  half  an   hour  before  ber 


irrlb. 

f 


Vk  fartioo,  in  the  mask  of  charily,  sus^gfest 
and  inadteriency,  to  palliate  these  aelf- 
ilu^ituK^  as  much  aj*  the  defendant  can 
«i  !>at  regard  is  due  to  her  oath,  who 

f^  n\  to  swear  so  rashly  P 

it'tccted  of  io  groaa  prorarieaiioa, 
^i  (ion  her  single  ttsiitnony,  io  the 
i&att  ffk4{»4.Ufiui  tale  which  was  ever  heard  ? 

^ill  that   I  ale,  patched  np  with  irrelative 
€r<  H,  ftaod  a  moment  in  competttion 

Wit  i.ilahleproof  of  ith  tatsity  ? 

♦  '  '  liCe   was  the  potitire  tesli- 

nt"  ittiL*stes,  in  absolute  contra^ 

dkifun  uf  ffiv  vTiiuto  story  of  the  defendant's 
caofhitmcDt. 

ft  KM  ffVfod  b^  most  of  those  witnesses, 
OM^  mntas  refrmn^  to  sr;veral  rircunistinces^ 
'  «up|K»rted  by  other  I«b* 
m!  liis  wife  lay  in  this 


XMWMWJ,  \J5^^. 


t  of  the  month  of  J«- 


If  it  even  alterrtpled  io  the  defence  to  deny 
this*  r*  No  other  aos^^er  i^gtien  to  it  than  by 
diUcking  the  characters  nf  Natus  and  Whir* 
fin,  which  1  shall  obnerve  ii|ton  hfrealter« 
though  it  does  not  depend  merely  upon  Ihetr 
credit. 

White,  the  officer,  swears  he  saw  Natus 's 
wife  coming  out  of  this  room^  at  if  just  out  of 
bed,  io  the  nit»min^,  when  he  went  down  with 
Mr.  Alderman  C bitty 's  warrant  to  apprehend 
the  people  of  the  house.  The  bed  of  straw, 
with  a  sack  of  wool  for  the  bolster,  was  parti- 
cular Iv  described  by  him,  and  many  others. 

Istbtrc  any  answer  given,  or  even  attempted, 
to  any  part  of  the  evidence  which  relates  lo  the 
cutting  the  trees  ?  and  yet  that  evidence  ia 
totally  incompatible  with  the  truth  ot  the  de- 
fendant's story.  So  ia  the  evidence  with  re* 
gnrd  to  the  bignirons  bought  by  WhiSin,  and 
taken  out  of  itiis  very  room  while  Natus's  wife 
lay  in  the  hay-bed  ;  which  afso  stands  clear  of 
contradiction! 

Permit  me  now,  gentlemen,  to  make  a  ge> 
oeral  observation,  which  goes  to  all  the  wit* 
nesses  for  ibe  crown; — that  their  behatiour, 
mid  the  manner  of  their  j;iviug  testimony,  from 
first  to  last,  carries  with  it  the  air  of  sincerity 
and  candour. 

Was  there  a  slugtc  witness  pro<}uced«  who 
seemed  in  the  least  inclined  to  supjiress  the 
truth,  or  who  hesitated,  prevarLCited,  or  was 
pinch4:d  at  any  question  ?  Did  thc-y  not,  every 
one  of  them»  sfieak  out  fully,  cleaity,  and 
openly,  so  as  even  to  force  your  fissent  to  the 
evidence  ?  But  lo  haw  few  of  the  defenilont's 
witnesses  may  the  hke  observation  be  applied? 
I  appeal  to  your  senses,  whether  truth  is  not 
visibly  matked  in  thif  prusecuiion. 

This,  gentlemen,  I  think,  is  in  genera]  tba 
subiitauce  of  the  evidence  fur  (he  crown. 

I  have  recollected  it  as  welt  as  I  could,  with- 
out troubling  you  with  ey/vry  minute  circnm- 
stance,  which  might  iKKRsibly  lu^^e  its  force  by 
a  tedious  repetilion.  And  when  I  reflect  that 
all  ibis  »«ight  of  evidence  is  to  prove  that  faUe» 
which  io  itself  is  impossible  tu  be  true,  1  have 
more  need  to  apologise  for  having  already 
taken  up  so  much  of  your  time. 

But,  gentlemen,  how  well  supported  soever 
this  charge  agaiust  the  prison^r  is,  she  had  vet 
a  right  to  give  the  best  answer  to  it  in  her 
power  ;  to  which  you  have  attended  with  un- 
weftried  patience.  And  this  defence,  if  what 
has  been  attempted  deserves  to  be  so  called,  1 
must  now  beg  lea\e  to  consider  and  reply  lo. 

In  order  to  bespeak  )our  approbation  ftf  what 
was  tn  follow,  the  gentlemen,  who  are  of  coun- 
sel for  the  defendant,  were  j>lea»ied  U\  make 
their  tirut  address  to  your  pASJiioim  j  they  hope» 
thst  if  this  caifo  should  ap|>eAr  doublful,  if  you 
cun  impute  ibe  defendant's  evidence  to  a  mis- 
take with  regard  to  the  person  of  Mary  Sijuireai 
your  compasaioii  will  incline  you  to  acquit  ber. 

In  this  I  agree  with  them  mQ«t  heartily  ^ 


and  so  far  as  your  humanity,  under  the  regit* 
lation  of  reason,  can  aflbrd  her  any  asaislanctf 
enjoyment  of  ii.      If  it 


I  wbh  li«f  the  full 


607J  27  GEORGE  II. 

thottld  lead  vou  to  acquit  ber,  I  shall  for  my 
own  part,  and  I  hope  efery  one  else  will,  cheer- 
fuUy  acquieaoe  onde'r  your  verdict. 

But  you  will  remember,  that  when  men 
ailficr  (beir  compassion  to  silence  the  calls  of 
reason  and  justice,  they  prostitute  the  brightest 
ornament  oi  human  nature; — that  the  most 
deserving  object  of  our  tenderest  concern  is  the 
c^ipon wealth ;— and  that  whenever  we  ex- 
tend compassion  to  any  one,  at  the  expence  of 
the  public,  we  are  guiU}r  of  the  highest  iojus* 
tice,  and  aoawerabie  for  it  to  society. 

I  co^ld  wish  indeed,  for  her  own  sake,  that 
the  defendant's  title  to  humanity  from  others, 
had  received  no  interruption  from  the  want  of 
it  in  herself. 

When  a  poor,  friendless  wretch,  the  object  of 
no  one's  pity,  stood  at  thb  bar  upon  trial  for 
her  life ;  tte  least  remains  of  humauity  would 
have  auggested  to  this  defendant  to  relax  a  little 
of  her  severity  totvards  her— If  there  was  a 
possibility  of  mistake,  compassion  would  have 
inclined  uer  to  doubt  at  least ;  but  if  tliere  was 
no  possibility  of  it  at  that  time,  why  should  it 
be  su;r;^ested  now  P 

Surely,  the  defendant  can  have  no  pretence 
lo  this  plea,  having  disowned  it  herself,  upon 
the  mobt  solemn  occasion. — She  swore  posi- 
tively to  take  away  an  innocent  woman's  life ; 
^nd  being  now  called  upon  to  answer  for  it  in 
a  criminal  prosecution,  it  is  too  late  to  pretend 
she  was  mistaken. 

It  ia  objected,  with  an  air  of  great  serious- 
ness, that  the  evidence  for  the  prosecution  is 
insufficient,  because  there  is  no  proof  where  the 
defendant  really  was  during  the  month  of  Ja- 
nuary .-^An  plijection  which  has  been  sounded 
in  the  ears  of  the  multitude,  who  have  been 
fooled  into  a  conclusion,  that  if  the  prosecutor 
could  not  prove  this,  she  must  have  been  con- 
lined  at  Wells's. 

I  am  sorry  the  defendant's  counsel  have  no 
better  opinion  of  this  jury,  than  to  imag^ine  that 
thev  are  to  be  captivateJ  by  such  an  objection. 

it  was  incumbent  on  the  prosecution  to  prove 
she  was  not  at  Wells's;  and  if  she  %vas  not 
there,  it  is  of  no  consequence  where  she  was. 

However,  if  it  could  be  fully  proved,  though 
it  be  merely  a  question  of  curiosity.  1  should 
he  glad  oi  it,  for  the  sake  of  silencing  every 
clamour.  But  her  friends,  to  do  them  justice, 
have  been  so  faithful  to  her,  that  this  secret  is 
yet  impenetrable. 

I  am  strongly  inclined  to  include  Mr.  Scar- 
rat  in  this  compliment ;  though  I  cannot  con- 
ceive so  highly  of  him,  as  to  suppose  he  would 
retain  this  secret  at  the  expence  of  his  interest ; 
and  therefore,  when  he  finds  the  divulging  it 
consistent  with  his  own  safety,  he  may,  per- 
ha|)s,  choose  to  oblige  the  public  with  this  dis- 
covery, rather  than  satibfy  justice  in  a  way  that 
nay  be  more  inconvenient  to  him. 

This  man's  behaviour,  throughout  the  whole 
of  this  affair,  according  to  his  own  account  of 
it,  will  »ave  me  from  the  imputation  of  a  rash 
•uggestion.  He,  who  thought  fit,  at  first,  m 
hplp  her  to  adescriptioDiby  which  her  efidflnce 


Trial  of  Elizabeth  Canningf 


[606 


was  aHerwards  to  be  authenticated,  and  to  per- 
jure himself  in  order  to  corroborate  that  evi- 
dence, may  fairly  be  presumed  a  princtpai 
agent  in  the  whole  contrivance. 

Where  was  she?  is  a  (juestion  we  are  not 
concerned  to  resolve:  but  if  you  deajire  to  be 
further  satisfied  in,  it,  ask  l^rrat:  if  he  re- 
fuses to  inform  you — ask  the  mother:  if  ahe 
too  refuses  it — I  ^ooid  refer  yoa  to  her  con- 
juror :  and  if  he  would  reveal  so  much  of  bis 
art,  as  to  inform  you  what  led  him  la  ttU  lln. 
Canning,  that  her  daughter  was  in  the  hands 
of  an  old  woman,  and  woi^ld  aoon  Ketim^  you 
would  not  be  far  from  unravelling  this  niyitarf. 

But  in  all  likelihood,  the  time  is  not  frr  sn 
for  an  ample  discovery. 

The  defendant  has  been  hitbedo  very  nl 
supported  by  her  managers  (that  being  the 
name  by  which  her  friends  have  thought  h  to 
call  themselves  in  their  late  adTertiaeasit) 
But  when  she  shall  be  delivered  up  to  justice, 
and  find  that  those  people  can  no  longer  pfoisflt 
her ;  when  she  shall  seriously  reflect  upos  tba 
distress  to  which  her  guilt  has  rednc^  her; 
conscience,  perhaps,  may  prompt  her  to  ataoe 
in  some  measure  for  the  mischiefs  abe  has  ee* 
casioned,  and  she  may,  at  the  same  time^  hope 
to  obtain  some  remission  of  punishmeni,  by  the 
gratification  of  an  universal  curiosity. 

But,  say  the  gentlemen,  why  pot  call  Lucy 
Squires  to  confirm  her  brother's  evideoeef  Slie 
was  a  fellow-traveller  with  him  and  her  bmh 
ther  through  the  whole  journey  ;  and  therefore 
they  insist,  tliat  our  not  producing  her,  which 
they  call  a  concealment,  u  the  atrongesi  proof 
in  the  world  that  the  evidence  of  her  bnthor 
was  false. 

Was  she  concealed.^  You  saw  her  erery 
day  during  the  whole  trial;  she  is  yet  in  ooort  ; 
and  if  you  think  it  would  be  material,  ia  s 
case  of  80  much  consequence,  you  have  a  right 
even  now  to  her  evidence. 

But  the  true  and  only  reason  of  our  not  caU" 
ing  her,  is  her  gross  stupidity:  before  b^ 
brother  was  examined,  I  confess  it  was  our  ist" 
tention  to  have  Called  her  to  the  same  fad*  » 
but  finding  that,  in  the  course  of  hb  very  hat 
cross-examination,  he  bad  fallen  into  nia0^ 
blunders,  and  being  told  that  Lucy  wss,  >* 
possible,  still  more  stupid  than  him,  we  did  n^ 
think  it  prudent,  to  risk  the  credit  of  any  y^^ 
of  our  case  upon  the  evidence  of  such  a  silly 
creature. 

The  objection  to  the  brother's  ev^deoo^' 
from  his  being  so  much  more  exact  in  the  paf" 
ticulars  of  his  journey  from  South  -  Parrot  t^^^ 
warils  London,  than  troin  London  downwarJ^ 
will  have  no  weight,  when  you  consider  tb^ 
his  memory,  as  tu  the  former,  has  been  t0^ 
froshed  by  his  having  since  travelled  that  yon^ 
with  Mr.  Willis,  and  others,  five  times,  in  ord^ 
to  ascertain  the  places  particularly ;  and  thn^ 
his  not  having  re-travelled  any  |iart  of  the  ronf 


thiough  which  he  had  gone  before  he 
South- Parrot,  is  the  probable  and  natnraft 
reason  of  his  incapscity  to  describe  Iho  other 
partof  his  journey. 


609] 


Jfxr  WiiJvX  and  Corrupt  Perjury. 


A.  D.  1754s 


[610 


*  You  nuiy  easily  conceive,  in  what  an  irre- 
gular raanncr  gypsies  dealing  in  smuggled 
gooda  trsTeme  the  country.  They  avoid 
marlceCrtowDS  as  macli  as  po&sible ;  for,  beiug 
▼ai^bonila,  they  are  av»are  of  the  danger  of 
falling  into  the  hands  of  the  civil  magistrate. 

But  why  not  call  Virtue  Hall,  in  order  to 
■upport  her  recantation  irt>m  her  evidence 
•ipiiiist  Squires?  The  learned  gentleman,  who 
made  that  objection,  supposes  the  omission  to 
arise  from  our  apprehension  she  would  ha?e 
relapsed.  If  that  be  really  his  opinion,  I 
■hould  be  glad  to  know,  why  she  was  not 
catM  for  the  defendant  ?  Fur,  they  know,  she 
hat  atteniled  the  trial  every  day. 

There  are  two  reasons  w  hy  we  did  not  pro- 
daee  ber  as  a  witness ;  one  of  which  has  been 
■eationed  hy  the  learned  Recorder;  that  by 
Jaw  she  was  not  admissible  as  a  witness  to  re- 
traet  ber  ovfn  evidence  on  the  trial  of  Squires. 

Upao  the  trial  of  Titus  Gates,  in  the  first 
yam  af  king  James  the  second,  (1  mean  his 
ml  trial,)  the  counsel  for  the  crown  would 
batapoduced  one  William  Smith,  in  order  to 
pars;  that  what  he  had  sworn  at  a  former  trial 
wiilUae,*  and  that  he  was  persuaded  to  it  by 

*  In  Scotland  this  sort  of  examination  is  not 
pmnitled.  *<  Our  practice,"  savs  Mr.  Burnett, 
(Treatise  on  Criminal  Law,  chap.  17,  p.  463) 
"  doea  not  allow  the  credit  of  a  witness  to  be 
hy  any   evidence  of  his  having 

I  a  different  account  of  the  matter,  extra- 
jadidally  from  what  he  has  ^iven  in  his  exa^ 
Hattion  on  the  trial,  though  in  England  such 
ipaears  to  be  competent.  In  the  case  of  Mal- 
Iscn,  16  July,  1750,  something  of  this  was  al- 
bwcd ;  but  his  majesty's  Advocate  entered  a 
prMtatation,  that  it  slmuld  never  .nfterwards  be 
Bide  use  of  as  a  preceilcnt.  This  notwith- 
Mmdiog,  in  the  trial  of  Neil  for  robbery,  24th 
Fcbruarv  1777,  a  question  was  put  to  a  wit- 
Mi  of  the  name  of  Macairly ,  and,  fo  far  as  ap- 
pnrs,  not  objected  to, — whether  he  had  given 
•  Mmit  account  of  the  mnUor  in  his  decla- 

I  when  precognosced  ?  The  witness  ao- 
1  in  the  negative,  was  afterwards,  on  the 
4lbAu|{ust  1777,  brought  to  trial  for  perjury, 
W  having,  it  was  said,  given  a  diHerent  account 
•Tlhe  matter  when  precognosced  ;  but  afler  a 
iall  debate,  where  the  chief  |)oint  argued  was 
Ae  irregularity  and  incompetency  of  the  ques- 
tion to  which  the  oath  applied,  the  diet  was 
facrted.  In  the  trial  ot  f  larkness,  in  April 
1797,  this  matter  was  very  deliberately  consi- 
dcral.    The  principal  doubt  was  as  to  the  cor- 

Cdtlicti ;  and  the  surgeons  who  had  seen  the 
y  were  examined,  and  gave  very  contradic- 
Iwjp  evidence.  To  invalidate  the  testimony  of 
one  of  them,  the  prisoner's  counsel  olfered  some 
iHlnesscs  to  prove  that  he  had  given  a  very  dif- 
ftrent  account  extrajudicially,  and  also  in  his 
daelBraiifin  when  preci>i;uosced.  This  evidence 
Ibcy  contended  was  comuetent,  especially  in  a 
aase  where  the  I'aciH  had  happened  four  years 
and  the  statement  had  been  given  by 
NHi  alter.    ThaCourti  however, 


Oatea  the  defendant.  [See  vol.  10,  p.  1185.] 
Aly  lord  chief-justice  JefTeries  (who  would 
have  been  glad  to  have  hange<l  Titus  Oates, 
and  who  of  all  meu  livin<^  could  least  be  sus- 

were  unanimously  ofthatopini.-;n,  such  evidence 
was  incompetent.  Tliey  helil  that  the  only 
evidence  that  could  be  regarded  by  the  jury 
was,  what  was  given  by  the  witness  in  their 
presence;  and  that  to  allow  this  to  be  invali- 
dated by  any  thing  he  might  have  said  extra* 
judicially,  was  not  only  wilhout  precedent,  but 
of  dangerous  tendcucy.  II  euce  every  uituess, 
before  giving  his  crvidence,  is  entitled  to  call 
for,  and  have  his  decoration  cancelled.  In- 
deed, the  law  presumes,  that  every  prccngui- 
tion  has  been  cancelled  before  the  witnesses  are 
examine,  to  prevent  any  thing  they  may  have 
formerly  said  from  being  afterwards  founcled  on 
to  overawe  or  intimidate  them.  It  was  farther 
observed,  that  frequently  witnesses  themselves 
are  asked  as  to  what  they  formerly  had  said  ; 
but  such  questions  are  uniformly  rejected  by 
the  Court ;  and  for  the  ssme  reason  the  evi- 
dence of  third  parties  to  that  fact  ought  to  ha 
disallowed :  tliat  the  best  evidence  of  what  the 
witness  had  said  would  he  the  declarations 
themselves;  bnt  these  confessedly  it  was  in- 
competent to  produce :  that  the  greatest  confu- 
sion would  ensue,  if  a  proof  were  allowed  of 
what  witnesses  had  said  when  not  upon  oath  : 
that  this,  if  at  all  admitted,  would  be  equally 
competent  to  the  prosecutor  and  prisoner  ;  and 
then  there  would,  in  many  cases,  he  a  kind  of 
trial  of  every  witness,  whfch  would  render  the 
procedure  inextricable ;  and  evidence  upon 
oath,  which  alone  courts  regarded,  would  be- 
come of  little  avail.  On  these  grounds,  the 
Court  rejected  the  evidence  wliicn  was  oflered. 
(•  l£ven  in  tlie  prior  case  of  Watt,  for  hi(;h- 
treason,  in  August  1794,  where  the  £nj;lish 
law  on  the  subject  was  the  rule,  and  the  Eng- 
lish forms  necessarily  observed,  the  prosecutor 
declined  to  insist  upon  a  question  which  he  had 
put  to  one  of  the  witnesses  relative  to  what  ha 
had  said  on  a  former  occasion.— The  Court  re- 
commended to  him  not  to  urge  any  question 
which  was  not  competent  by  the  law  of  Scot- 
land.*' 

To  English  lawyers  it  may  perhaps  be  mat- 
ter of  astonishment,  that  when  by  attesting 
upon  oath  contradictory  relations  of  the  same 
transaction,  a  witness  has  shewn  himself  to  be 
a  liar,  it  should  not  lie  permitted  to  offer  that 
fact  in  evidence  of  his  unwortliiness  of  credit. 
To  Scots  lawyer  Mr.  Burnett  (cap.  18,  p.  4!>7, 
note)  informs  us  it  sr ems  strange  that  in  Eng- 
land depositions  before  a  coroner  or  a  justice  u^ 
the  peace  may  be  used  in  evidence  to  discredit 
contradictory  viva  voce  testimony  afterwarila 
given  by  the  same  deponent  on  the  trtal. 

'*  After  being  questioned  in  initiaUbut,*  ami 
before  giving  his  evidence  on  the  case  the  wit- 

*  In  Scotland,  helbre  a  witness  gives  his  evi- 
dence upon  the  case,  he  is  examined  as  to  malice, 
partial  couniel|  and  initructioos  what  to  say. 

2  11 


61!] 


27  6E0RGB  II. 


Tritd  ofElitabeth  Cantthg, 


[618 


pecteil  of  partiality  towards  him)  rejected  the 
evidence ;  and  lieini;  told  hy  sir  Robert  Sawyer, 
the  then  attorney- (renera I,  that  the  Kke  eri- 
d«-nce  had  been  admitted  in  former  trials,  the 
chief-justice  fwho,  with  all  hia  fanlta,  baa  been 
ewer  esteemed  a  great  lawyerf ,  and,  1  am  aare, 
in  this  instance  did  no  dishonour  to  his  moral 
character)  said,  **  be  hatnl  such  precedents  in 
all  times; 'that  be  could  ^not  beliefe  a  villain 
in  one  word  he  said,  when  he  owned  that  he 
forswore  hintiself;  and  that  be  oucht  never 
to  be  received  as  a  witness."    And  in  his  opi- 

ness,  if  be  please,  may  call  for  his  declaration, 
or  de|H>sition  if  he  has  been  examined  on  oath, 
and  have  it  cancelled  in  his  presetce,  that  he 
may  be  at  abscilute  freedom  in  telling  his  story 
on  the  trial.    This  was  done  in  the  trial  of  Love 
and  others.  May  4, 1687,  [See  the  Case  in  this 
Collection,  vol.  12,  p.  5?S,]  where  the  privy 
council  had  examined  several  witnesses  upuu 
oath.    But  even  if  the  declaration  should  not 
be  cancelled,  yet  certainly  it  can  never  be  em- 
ployed in  aoy  manner  of  way  to  the  jirejadice 
of  the  witness,  nor  can  it  even  be  produced  in 
the  trial  to  discredit  hia  evidence,  by  showing 
that  on  a  former  occasion  he  had  given  a  dif- 
ferent account  of  the  fact.    Still  less  in  the  or- 
dinary case,  will  verbal  testimony  to  that  effect 
be  received  to  impeach  the  credit  of  bis  oath. 
The  only  proceeding  of  this  character  which  I 
have  met  with,  is  the  trial  of  David  Malloch, 
July  16,  1750,  an  exciseman,  for  killing  a 
smuggler  in  the  course  of  the  duty  of  bis  office. 
One  Stevenson,  also  a  smuggler,  bad  given  a 
testimony  highty  ubfavourable  to  Malloch,  in 
which  be  differed  from  all  the  other  witnesses 
in  the  trial.    To  invalidate  this,  Macarthur,  an 
exculpatory  witness,  bad  been  allowed  to  relate 
a  very  different  story  w  liich  Stevenson  had  told 
in  his  hearing  on  a  former  occasicm,  imme- 
diately at^er  the  slaughter.  Now,  to  support  Ma- 
cartliur's  evidence,  and  in  farther  impeachment 
of  Stevenson^s  veracity,  the  pannel  proposed  to 
examine  one  Anderson,  who  had  been  present 
at  Stevenson's  conversation  on   this    subject, 
along  With   Macsrthur.    The  Lord  Advocate 
objected.    The  pannel  rejoined,  that  Stevenaon 
was  the  only  person  present  at  the  slaughter ; 
himself,  a  known  smuggler,  was  associated  with 
the  deceased  in  the  act  'of  smuggling  at  the 
Tcry  time  when  he  was  killed,  and  was  more 
likely  to  tell  the  truth  recently  on  that  disaster 
than  now,  at  a  distance  of  time,  when  liemiffbt 
probably  be  actuated  by  motives  of  a  different 
Jcind.    In  res|>ect  of  ^hese. circumstances  the 
Lord  Advocate  desisted  from  his  iipposition,  but 
with  the  due  precaution  to  hinder  thiaconcea- 
aitm  from  serving  as  a  precedent  in  time  to 
come.    *  His  majesty's  Advocate  and  procu- 

*  rator  for  the  pursuer  consented  to  the  receiv- 

*  ing  the  witness,  hut  under  protestation  that  it 

*  should  never  be  made  use  of  as  a  precedent  in 

*  this  court.* "    Hume'a  Comment.  Trial  for 
Crimej,  chap.  IS,  vol.  9,  p.  IM. 

t  Stt  Tol.  10,  pp.  Ii55,  5S6. 


nion  all  the  judges  of  the  KiogVbeoch  oon* 
curred. 

But  I  had  another  reason  lor  not  calling 
Virtue  Hall. — As  an  honest  man,  I  dared  not ; 
nor  could  I  reconcile  it  to  the  hopes  of  sup- 
porting m^  own  character  an  hour  longer. 
For  how  immoral  and  treacberoua  would  it 
have  been  to  prodoce  a  witnesa,  to  profe  aba 
had  been  perjured  in  a 'former  trial;  when  hy 
that  Tery  evidence  ahe  would  have  espoaed 
herself  to  punishment  1 

Besides,  whatdegreeof  credit  coold  be  giren 
to  a  witness  offering  such  testimony  P 

Gentlemen,  there  is  a  reflection  thrown  apoo 
Mr.  Nash,  Mr.  Hague,  and  Mr.  Aldridlgie,  $&i 
their  not  appearing  on  the  trial  of  Maiy 
Squires ;  aa  their  testimony  wonld  have  kmk 
extremeiv  material  upon  that  occaaion,  aod,iB 
all  probability,  would  have  prevented  ber  €aa- 
viction. 

I  must  confess,  that  their  eonducty  in  thii 
respect,  is  not  strictly  justifiable ;  nor  are  till 
reasons  assigned  for  their  absence  suflicient 
This  seems  to  be  their  own  judgment  afker- 
wards,  when,  sensible  of  their  iMglect,  tbcj 
made  the  best  atonement  in  their  power.  Mr. 
Nash  was  so  affected  when  he  found  the  wo- 
man waa  convicted,  contrary  to  his  expedatioD, 
that  he  declares  he  was  very  uoeaa?,  and 
should  never  have  forgiven  himselfy  if  rae  bad 
been  executed. 

Finding  she  was  convicted,  what  waa  the 
behaviour  of  these  gentlemen?  Tbey  readily 
assisteil  in  an  application  to  the  throne  for 
mercy ;  and,  in  all  likelihood,  the  facts  dis* 
closed  in  their  affidavits  materially  contriboted 
to  the  saving  the  convict^a  life. 

The  counsel  for  the  defendant  have  thrown 
another  reflection  on  Mr.  Naah,  on  account  of 
the  letter  which  he  wrote  on  the  lOtb  of 
February  to  Mr.  Lvon.  These  are  the  wonh 
of  that  letter:—'*  Mr.  Lyon,  1  am  informed  by 
Mr.  Aldridge,  who  has  lieen  at  Enfield,  that  a 
a  person  be  appointed  there  to  receive  contri* 
buttons,  some  money  may  ha  raised  in  that 
place  for  the  unhappy  poor  girl.  1  wish  yoa 
succe^is,  and  am  yours.'* 

The  gentlemen,  by  mistake,  (for  I  dare  say 
they  would  not  misrepresent  it  knowingly) 
have  taken  notice  of  this,  as  proposing  contri- 
butions to  carry  on  a  prosecution.  But  too. 
see  there  is  not  a  word  about  a  nrosecutioa^ 
for  it  is  only  to  raise  money  fbr  tlie  unbaapy 
poor  girl. — What  does  this  prove,  besides  Mr* 
Nash's  compassion  and  friendship  to  the  de- 
fendant, in  distressed  circumstancea,  whether 
her  atory  were  true  or  false  ?  She  was  poor, 
and  under  affliction ;  and  whether  that  afflic- 
tion was  the  consequence  of  guilt  or 
oeoce,  his. humanity  felt  for  her. 

But  there  is  a  wide  difference  between  i 
ing  the  girl,  and  aasisting  to  carry  on  a  pma^ 
cution.  Thia  letter  shews,  at  least,  that  Mr. 
Nash  did  not  then  bear  the  least  ill  will  eitlMr 
toiler,  or  her  mother:  and  seeing  there  ia  at 
evNlenoe,  that  he  baa  aince  had  any  reasan  la 
alter  bis  santiaMaUs  what,  but  bia  dotj  la  IIm 


6I3J  J^f  Wlljul  and  Corrupt  Perjury* 

ptibile«  lirtngs  btnci  liens?  What  sboultl  induce 
fiiro  to  apffear  in  a  court  wfjii^tioe*  ami  perjure 
lumself;    to   ruJ!i   n   pocir^   itnbappy,  inuoceot 


] 


foil 
any 

AlMt    t 


pa 


I  hat  he  can  propose  an 
:     -ir*  or  (he  g-nilific&tioii  of 
u'ver,  by  so  (bul  a  villainy, 
e  itsdf  toiuffgest  any  thiuif 
ce  ul'  hift  character.     Ue,  as  welt 
ie,  and  JMr*  Aldiidjje,  beiu^  ctli- 
uequaintance,  U  is  very  likely 
i;  e  not  uuknot^n  to  you — ami 
jTao,  tbeir  criidii  must  remaio  unshaken. 

GfifillriDen,  having  now  gau^  throug-h  the 


Ibetrcl 


which  were  made  by  the  d« 
I  muit  intreAt  your  patience 
ij!>t  ivc  upon  the  eiideuce  which  hath 
offeretJ  on  her  behalf, 

gb  the  whole  defence,  they  hay«  not 
|rtrtl  to  prote  a  single  fact  in  express  cou- 
iciioii   lo  any  part  of  our  evidence,  except 
tlhe  ifypsey. 

uTe  they  atteaipteiWto  impeach  the 

of  any  one  of  our  witnesses,  except 

KtfDf  and  his  wife*  and  al«o  Ejtra  Whiffio,  by 

•  refleclioD,    which   is   now  wiped 

»»*-  tiie  other  wiioesses  for  the  crown 

dear  of  imputation. 

Il  H  aki>  ob«(frTable,  upon  oonsiderinff  every 

It  fence,  that  the  defendant  may  be 

^    perjury  changed  in  this  iodict- 

i    her  own  witnesises  speak  truth  ; 

'  nnnut  be  innocent,  unless  5fty  of 

.   i-.ijured. 

For,  IN  ihf  re  one  ci re iim stance  in  the  whole 

^eoce,  which  necesHariiy  infers  a  belief  of  her 

rtOfy?  Or,   i»  ihrre  one  iit  the  chnrge,  which 

4o^ool  clearly  inlisr  the  contrary  f  80  that»  il' 

yvBooiitict  lhi«  HOinau,  ynu  lind   a  perjury 

e|imt  thr  fuHeiit  pro* if  tliat  ever  came  befui^e  a 

ice;  but  if  you  acrjuit  her,  you 

ve  factis  uncontriidicteti,  yet>iw'oro 

tM  \f\  w  nuu*fcea  of  irreproachable  characters. 

If  ihi'tcsfenrrahibservalions  are  not  justified 

nee  you  have  heard  on  both  n\\\e%^ 

ry  ready  to  retract  them  ;  for  no- 

remoie  I'rom  my  mleution,  than 

I  HI. 

•  ilrnce  for  the  defeiidunt  tends  to 

V  l»e  was  missiuif  from  the  \s\  to  the 

-' V  !  thai  she  wsHifj  ijrood  liealiti  uu 

'  El  nil  the  '2<»h  :  thiit  slie  was 

*';      ,  1  lietween  Ltiitdon  »iiil  Eiitieht- 

ftiuh,  4IU  Uie  lit  of  Juiiunry  at  ni^ht^  between 

Iwotiiru  ;  that  she  wns  nevu  in  the  same  rcuul 

^wk  her  return  t»ouie :  that  on  the  night  of  her 

'>*wn,  and   three  days  after ward^ti   wlirn  she 

'  <^vii  tu  EuHrhl  ¥t\\\\  her  friends,  «he  tuid 

y  with  *ucU  d«*Mriie*t»  and  cooMiteocy, 

'  >'.:ea  bidiel   of  il ;   that  l^lary 

at  Enli«'M  U^ihoQ  the   1st 

^      ntiuud  Wettn  have  eon* 

''  Htid  ciii»tiiieiii('»t ;  that 

^t,   aitd   Exra  Wludin*  itre  a 

I  Hi  to  bt:  believed  :  and  lost- 

1  i     I  - '  4'laui  hcrnclT  b«ari  an  exceed- 

iPfl^tHHt  character. 


A.  D.  175+-  [Gil 

What  of  all  thia  is  material,  namely,  the  de- 

fendaut's  \m\\^  met  upon  the  fiufield  road,  th« 
contta-aiihi  (if  I   may  he  alttiwed  the  ifXprea* 
I  si 00)  ut'  Mary  Sijui rest,  the  confcjisiuii  of  ^piirei 
y    and  VVelLs,  und  the  dt-fendunl^s  account  other* 
self.  1  shall  take  notice  of,  when  1  apply  myself  J 
to  the  witoesst^s  produced  to  prove  ttiese  several  i 
matters.     And  you  will  lind,  u|ioft  cunsidei^^l 
I  tion,  tliat  it  wa»  not  the  defendant,  hut  other  < 
persons,  who  were  ruet  upon  the  mad  the  1st 
and  S^th  of  January,  auppiH>iug  their  own  wit*  \ 
nesses  swear  truly  ;  that  the  evidence  to  en* 
counter  our  proof  of  the  alibi  is  extremely 
weak,  uncertain,  and  improbable;  that  tlie  pr&* 
tended  confessiun   ot'  Si|yires  and   VVelb  wai 
neither  more  nor  less  than  a  declaration  of  their 
innocence  ;  and  that  the  defendant's  behaviour 
upon  her  supposed  return,  and  ufierwaids  at 
Enfield,  is  a  furlher  confirmation  of  the  charge 
against  her. 

As  to  the  rest  of  the  evidt^nce  ; 

Whether  the  dt'fendant  was  missinfi:  from 
the  Ist  to  the  2Qlh  of  January,  concludes  no** 
thing  to  the  purj^ose,  unless  it  be  firoved  she 
was  at  WelU's.  Nor  is  it  material  to  this  cause^  ' 
that  the  dereitdant  was  in  an  ill  stale  id'  health 
on  the  29th  of  January  and  afterwards,  uiilcit 
it  were  also  shewn,  that  her  disorder  ua«  thft 
etfect  of  such  ill  usa^«^,  as  she  pretends  to  havo 
endured.  But  you  observe,  by  the  very  i\it« 
uess,  the  physician,  produced  for  that  purposei 
that  her  illness  might  proceed  from  other  ' 
causes. 

The  characters  of  Natus  and  VVhiHio  I  shall 
take  notice  of,  when  1  come  to  ibut  piirt  of  lh« 
case. 

The  only  remaining  evidence  for  the  dc- 
feniiant,  was  to  l»er  own  ifoo^l  character,  Uk ' 
whicti  jieveral  witnessis  A]i|ieared  ,  bul,  think* 
iiTg:  it  immaterial,  and  lu*  iliesa%iug  tune  aud 
trouble,  1  was  retid\  to  udmitit.  And  becausft 
such  admission  should  be  tnken  in  the  strouj^esi 
lerins  apiinst  us,  1  nm  wdliiit;  thin  yoiinj^  wo* 
man  ai  the  h;it*  should  he  consider<;d  (t^xciuvive 
of  the  present  cliMrfiie)  as  a  modest,  virliions^ 
honest,  credilable  ifirl,  fit  lo  he  h*'hev*-d  in  any 
IhiiJif,  us  far  as  any  body  should  be  believed 
upon  iht;  tike  occasion.  ' 

Hut  I  here  in  a  um*\  ifentlenien,  wherein  peo- 
ple he^lll  to  be  wicked;   witli  stiine  it  luppena 
early.  ^Mih  others  luie ;  M»me  urc  misled  by  ill  < 
exni'nple  and  had  education,  and  others  by  fa« 
riouH  aicideniM, 

VVhiii  was   tlie  cause  of  this  nnfortunato 
young  creature's  de%iatui^  from  the  piith  of  ^ 
virtue  so  far*  as  at  Utsl  to  plun^-e  hertji  If  into 
all  thisiEuiJt  and  nnsi'ry,  ihj*?s  not  cUarly  ap-  j 
t^tiar:  she  was  meanly  1*  ihoutrh   not  wickedly 
brunjrhi  up,  and  hmlbtelw  you  see,  beeu  m 


srrvunt  in  11  n  ale-hunse,  where  we  mity  sup-* 
pose,  at  k*uii,  that  «ilie  «vas  not  much  iitreoi;ib* 
eiied  in  virine.  I  do  not  pretend  to  say,  ther« 
is  any  direct  proof  of  her  want  of  chattily  ;  but 
I  think  il  may  fairly  enough  be  conjectured  a« 
tlie  mcenlive  of  tier  present  i^uth;  bul  what* 
ever  has  been  the  cause  of  it,  she  has  been 
|>ruv#d  guilty  of  perjury,  and  aaaha  o»«c  bgr« 


615] 


91  GEORGE  IL 


[6I« 


a  fair  cbaractrr,  it  is  probable  that  tbe  did  not 
fall  ioto  th»  tin  at  once.  Which,  I  thiok,  is 
ail  that  can  be  inferred  from  her  good  cha- 
racter. 

I  haTe  no  objection  to  the  eridciicc  of  Mr. 
and  Mrs.  Collcv,  the  oode  and  aont :  for  the 
d^ffendant  mi^bt  have  parted  whh  them  at 
Honndt'iitch  in  {rood  health  ob  the  1st  of  Ja- 
ntjary,  and  thej  oM  see  hfr  again  tilt  the  29th. 

Bat  Mrs.  Cannioir,  the  defendant's  mother, 
trbo  is  called  to  prove  several  circamslances, 
ha*  said  enoofrh  to  create  a  jealousj,  at  least, 
lb  It  neither  her  daughter's  oeijury,  nor  the 
motives  to  it,  are  ankootm  to  her. 

First,  ^Vith  regard  to  the  papers  that  were 
sent  to  tlie  office,  in  order  io  oe  printed  in  ad- 
venisements ;  in  one  of  n^hicb  it  was  said,  that 
the  defendant  bad  in  her  pocket  twelve  shillings 
awl  nine- pence  balf-pennv.  81ke  tells  yon, 
that  io  the  morning  her  daughter  had  half  a 
guinea,  three  shillings,  and  a  farthing  :--that 
•be  lent  hf;r  a  box  to  pnt  the  half-guinea  in,  and 
that  the  girl  took  ber  money  out,  and  shewed 
it  ber.  Why  then  did  the  mother  propose  to 
advertise,  as  if  ber  daughter  bad  just  twelve 
ibillinj^s  and  nine-pence  half- penny  f  Why  not 
insert  half  a  guinea,  three  shillings,  and  a 
farthinq:  •''  Because  the  little  brother  bad  told 
her,  she  had  changed  some  money,  and  had 
given  to  each  of  the  children  a  penny ;  and 
so  computing  what  remained  of  the  thirteen 
•hillings  and  six- pence  farthing,  she  reckoned 
that  the  girl  must  have  twelve  shillings  and 
nine-pence  half- penny  in  her  pocket  when  she 
parted  with  ber  uncleat  Hoandsditch.  }4ow,  if 
this  be  true,  the  defendant's  account  of  the  mo- 
ney is  false :  she  swore,  that  the  men  rol>bed 
her  of  half  a  guinea  and  three  shillings.  The 
farthing,  you  observe,  was  not  taken  from  ber ; 
for  she  brought  it  home,  and  gave  it,  the  same 
ni^lit,  10  one  of  her  brothers.  The  mother, 
being  ninche(|  at  this  obvious  objection,  endea- 
voured to  reAOve  it  by  lessening  the  force  of 
the  evidence  she  had  given  before;  and  by 
way  of  recollection  says,  she  is  not  positive 
whether  the  thirteen  shillings  and  six-pence 
farthing  wore  not  shewn  to  h^r  after  the  half- 
pence had  been  given  to  the  children.  And  If  it 
was  after,  then  the  mother  is  in  hopes  she  has 
entirely  removed  the  uhjection,  and  left  the 
whole  sum  of  thirteen  shillings  and  six-pence  in  : 
the  daughter's  pocket,  which  was  the  sum  she  j 
sivore  to  have  been  robl)ed  of.  But  with  all  I 
the  mother's  cunning  and  sudden  recollection,  \ 
truth  is  too  hard  for  her ;  for  by  forgetting  a 
little  circumstance,  (Mr.  Fielding's  pretty  in- 
cident of  the  penny  mince-jpye,)  she  is  in  the 
same  dilemma  as  before.  For,  supposing  the 
half-pence  had  been  given  to  the  ciiildren  be- 
fore bhe  had  shewn  the  half-guinea,  three  shil- 
lings, and  a  farthing,  yet  the  mince- pye  was 
bought  after  she  parted  with  her  uncle,  as  was 
iwurn  by  the  defendant :  now,  out  of  what  mo- 
ney was  the  pye  paid  for  ?  And  if  she  bad  no 
half- pence,  and  only  half  a  guinea,  three 
shillings,  and  a  farthing,  before  sne  bought  the 
pyci  tbeo  how  conld  the  be  robbed  tf  half  a 


Trial  ofElizaieih  Camdng^ 

guinea  and  three  ahilEngs  io  M oar6eUa  i 
wards?  Thus  that  pretty  incident,  ^  wl 
ber  learned  adroeale,  in  bis  pamplilcl,  najrt, 
•«  poaubly  saved  this  DOor  girl's  Itfe,"  lends  !• 
a  detection  of  ber  goUt  upon  tbe  evidence  of 


■IranR 
iri  had  I 


Tlie  nsotber  mentioDi  another 
cnnMtanee.   "  She  thought  the  ^rl 
flsnrdered  bv  tbe  Jews,  and  thrown  into  Honnde 
ditch."    ^h^  then  did  abe  advevtiK  ber  leal» 
strayed,  ormiashig  by  ber^ friends?   Why  an 


searching  for  the  bod^>  ?    Was  there  a  bnwin 
creature  sent  to  enquire  about  it?    Besides  toe^ 


the  very  next  witness,  the  apprentice,  i 
what  stands  in  flat  contndiction  In  the 
tress,  "  That  Mrs.  Canning  toM  bini,  she 
thought  ber  daughter  had  been  snapped  npbf 
some  rakish  young  gentleman." 

The  screaming  out  of  a  coacb,  in  Diabsji 
gate-street,  seems  to  be  one  of  the  wawbnig 
tlioughtB  she  speaks  of ;  for,  though  it  is  pro- 
tended  she  received  informatwu  of  tbal  BaHer 
by  tbe  woman  of  tbe  oil-shop,  yet  they  bnveaet 
thought  fit  to  produce  this  person ;  wbieb,  in  a 
case  wliere  every  circumstance  is  OMlcfial,  is 
an  omission  one  cannot  account  for  tn  tbe  credit 
of  the  defence. 

But  it  seems,  as  if  the  tbougbta  af  batb 
mother  and  daughter  wandered  fowaids  the 
same  objects ;  for  the  daughter  drcant  ef 
Bishopsgate- street,  while  she  was  in  a  eoiivnl- 
aive  fit. 

Then  as  to  the  conjurer ;  to  whom,  by  tbe 
bye,  there  was  not  a  word  mentioned  about 
being  murdered  by  the  Jews. 

She  was  introduced  to  this  illustriena  pci^ 
sonage  with  great  solemnity :  the  lights*  tbe 
skeleton,  the  magic  instruments,  tlie  wand,  tbe 
circle,  and  all  the  apparatus  proper  to  inspire  a 

{loor  ignorant  woman  with  awe,  and  engage 
ler  to  a  discovery  of  what  she  wanted  to  know, 
were  all  before  her. 

She  was  so  terrified,  that  you  find,  she 
hardly  remembers  one  word  sm  said  to  him ; 
and  yet  she  must  have  said  something  very 
material,  instructing  him  to  give  her  so  good  sa 
account  of  her  daughter. 

At  last  she  recollects,  that  she  did  tell  him 
something  about  Bishopgate-street,  though 
she  does  not  remember  the  particulars.  Ekia 
she  most  have  gone  much  further,  before  tbe 
doctor  could  have  found  out,  that  her  daughter 
was  in  the  hands  of  an  old  woman ;  that  she 
should  advertise  her  once  more,  and  she  wookl 
come  again.  Whether  she  really  had  this 
intelligence  from  the  coniurer,  or,  in  order  tc» 
carry  on  the  plot,  thougnt  fit  to  invent  it  fbr* 
the  amusement  of  her  credulous  friends,  whi» 
bad  lent  her  money  for  his  fee,  is  not  easy  Iw 
say :  bOt  either  way  the  inference  is,  that  she 
knew  more  of  her  daughter  than  is  consisteat 
with  the  defendant's  innocence. 

For,  if  what  the  daughter  swore  bad  beat 
true,  bow  could  the  mother,  at  one  time  be* 
lieving  her  murdered  by  the  Jews  at  Honwlii- 
ditch,  and  at  another  that  abe  was  snapped  np 
by  soma  rakisb  young  geatkiiNUi,  bt  m  mm. 


fm  Wilful  and  Corrupt  Perjurtf. 


A.  D-  1754s 


[618 


iiii4eoeif«d«  Qtiil  iliscover  stt>e  wm  in  tbe 
,  aod  would  return  ? 
j  e  w  liole  of  iti  i  <  worn  a  n  *s 
verwl  f»l  verii»pmfiit9» — 
fi  this  [iretendeil  conjurer^ — 
ML'liis, — rUc  puttings  up  bills 
■  iit"eiin^-ho««es  of  Pre*- 
iH^  to  limy  for  lier  daugli- 
V  wliicb  the  pious  congreg^- 
iiseil  Xt>  chftrity)— the  Diffhtly 
fppriit4*d  piA^cih  to  ihe  naine  piirpose  wkn  ihe 
■|i|iramtiee  *l  home,— piirticularlv  the  pmyinif 
Hill   "     I  ■      "'Lh  of  January  for  the  datTcrh- 

ler  everoifiitioDed  Till  that  tery 

©fwi»M»|fj^iitiii  pniypr  nn^^vered  in  the  same 
aanant  hy  the  d^u^hier's  suddenly  rushing' 
WMO  th«  mom, — her  mother's  pretended  sur- 
pme  at  seeitiir  her,  *♦  Vcd  her,  feel  her,  il  is 
piritiuD  V^  and  then  fuinting:  away  ;  all 
illiogi  put  target her^  together  too  with 
0OPSBt  the  daughter  gtife  before  Mr 
Metmui  Chilly  about  B!ghop<$gate- street, 
fiwotti  they  do  not  directly  proTCi  yet  sorely 
something  mure  than  a  suspicion 
le  wǤ  A  contrivance. 
»  wipjwrt  the  dtft'ndftnl's  eridenee,  a<(  to 
!fii*oner  of  her  escape  out  of  window,  Mrs, 
mother,  jumet  Lord  ihe  appren* 
6*  !Wr  Myers,  ha?e  aworo,  Ihut  lier 

tr  'le  defend  an  I  said  was  seratchei)  in 

;  of  Ihe  wiihlon)  was  hloody  when 
ii:ii  home.  The  mother  says,  the 
then  bl^'fding^."  James  Lord  sayn, 
all  ofer  lihK»fh%  and  the  handkerchief 
\iaodj,",  And  Mr*-.  Myers  aaya,  "  the  Mood 
lh«i  drout  finiii  hr-t  k-nt  *upotj  herslioulder." 

after  the  time  of  her 
4''*  ;    and,  accordinsy  to  the 

t  ce,  she  wranped  a  white 

in\  her  heaOf  which  ahe 
iHfiid  in  \\  t-iU'tf  room,  and  wore  it,  instead  of  a 
cap,  all  the  way  tu  her  mother's  ;  dow,  if  her 
fir  bled  at  ihe  rate  those  witnesses  would  have 
3f0u  bcHcfc?^  the  handkerchief  must  hare  l»eeo 
iSlremtT  '    m  one  particular  place.  That 

^ifidki;^  been  nrofluceil  to  shew   to 

tin  wiuirijHi  >(  uTiiJer  anotner  head  of  etidence, 
«Ul  is  now  before  you.  Does  it  not  give  the 
fit  \fi  tbrsr  three  uitnefite^  ?  ft  has  indeed  the 
of  Jittle  a|K)ts  of  h!ood  upon  it,  hut  in 


iiiRfam  pUt*e«,  all  fiver  the  handkerchief,  and 
Mi  at  all  rorii.npoti*ling  with  their  testimony, 
kut  rather  hke  dots  made  by  a  finger  on  puV- 

Aot  ft  being  a  good  while  since  Mrs.  Can- 
sing  bad  the  possession  of  this  handkerchief, 
1  4o  nut  womler  at  her  forgetting  in  what 
ttMQCr  ahe  had  dressed  it  up,  sceni^  her  want 
•f  ilwffiury  has  lietrayed  ht  r  into  a  fl«t  contra 
AeCion  to  the  eirideoceshe  hf rself  ;^f c  upon 
tie  trial  of  Si|ulri'»i.  For  she  now  swears  her 
^mskter  came  lumie  wUh  two  handkerchiefs 
M  bar  hml,  and  that  «*  she  had  no  cap  on ;" 
htt  opiMi  thai  triaU  «he  said  nidhiiig  of  the 
bmnMrcUitf,  but  swore,  that,  upon  her  return^ 
^'ibfihadAcapoQ.** 
tettkom,  It  ij  ao  oltjcction  to  the  credit  of 


the  apprentice^  that  be  has  been  hid,  till  he  ii 
brought  here  as  Ik  Wftnei»s,  lest  he  shoutit  maka 
ttitscoverie** ;  tor  wtien  Mr.  Bidilulph  weot  t#| 
iht»  housaio  order  to  ask  him  a  few  qiiestionSp 
another  person  was  imposed  upon  bim  tn  hit 
Kttiid, 

h  will  be  material  to  another  part  of  the  i 
evidence  afterwards,  to  recolUjct  Lo»d*s  de^scrip'-] 
tiou  of  ihe  defendant  uj>oa  the  20th  of  Janu*] 
ary,  that  **  she  was  black  and  blue  us  if  Ijeaten,^ 
and  that  *'  her  arms  and  face  were  as  htack  af 
Ills  hat."  He  also  tells  you,  what  is  contrail 
dictory  to  all  the  rest  of  the  evidence,  that  oftj 
her  first  coming  home,  before  Mr.  Scarrat  ag\ 
any  body  came  in,  she  said  she  had 
confiniN)  at  Enfield *\Va§h*  If  you  conslda 
the  whole  tenor  of  the  eriileoce  for  the 
fendant,  you  mitst  be  conrinced  that  this  ladl 
has  swore  falsely,  and  that  he  was  bid  for  m\ 
¥ery  iniquitous  purpose. 

The  name  of  Mr.  Scarrat,  the  nejrt  wiinesfpl 
I  hare  had  occasion  to  mention  once  or  twico] 
already,  iu  terms  not  much  to  his  advantage. 

He  came  to  the  defendant,  btffore  she  ^ 
asked   any  qaesliona; — one   of  the  wiin 
says,  it  was  befoi^  ahe  aD»>wered  any  quesiioni 

What  brought   him  there,  a   total  strange 
both  to  the  mother  and  daughter  ?    frtr,  if  ; 
can  beliere  htm,  be  hud  never  spoke  to  eitbe 
of  them  in  his  life. 

He  says,  be  wai  prompted  merely  by  cirrf<i« 
Bity,  upon  hearing,  in  the  neiphhourhond,  that ' 
Betty  Canning  was  returned  home  :    and  the 
moment  he  came  in  he  as^ked  bcr,  .**'  Hheie  she 
had  bepn  confined  ?"  , 

Ready  to  satisfy  this  stranger  at  on ee,  she 
told  him  she  hud  been  confined  somewhere  ou 
(he  Hertfordshire  road,  for  she  retijembered 
the  coachman's  going  by. 

The  next  question  was,    "  How   far  from 
London  ?**  She  answered,  •*  Near  nine  or  te 
miles." 

WKhotit  farther  enquiry,  Scarrat  inttantly" 
replied,  **  I'll  lay  a  guinea  to  9  farthing,  she 
has  been  at  mother  Welts*«  f*  She  immecfiately 
«aid,  **  I  think  I  did  hear  the  name  of  Wilts 
or  Wells:**  and  he  then  helped  her  to  a  prrd'Ct 
il  ascription  of  Welts^s  hou^e,  ami  ibe  placet 
about  il. 

Mr,  Scarrat  proceeds  to  ask  her  rarioi] 
questions,  in  order  (us  he  sjys)  to  be  sattsfi 
whether  she  really  had  been  ihi;rc.  He  asfked 
lier  about  the  prospect  from  the  window, — the 
plougheil  land, — the  brook, ^ — the  tunner^s — 
and  every  remarkable  thing  he  could  recollect; 
and  to  every  question  she  answered  in  the  af* 
firmative« 

If  HcKrrat  really  meant  to  be  satisfied  wbt 
titer  she  had  been  at  Welb^s,  seeing  she  an 
awered  affirmatively  to  every  question,  why' 
did  he  not  put  one  que^itiou  at  teast,  to  whicu 
her  answering  Yes  would  have  oomincifd  him, 
she  had  nr»i  been  there  f  The  reason  of  that 
omission  may  be  easily  collected  from  the  rest 
of  his  hrhaviour. 

Being  asked,  whether  he  knew  Mrs.  Wells's, 
he  would   liftfa  you  ibitik  he 


019]  27  GEORGE  II. 

lier  bouse  by  passioir  and  repastingf.  Was 
you  ncrer  there?  Why,  •*  be  beeves*' — 
be  is  not  sure — **  he  has  l>eeti  there  once 
or  twice."  No  oftener? — Upon  your  oath, 
hafe  not  you  been  there  more  than  twice?— 
**  I  believe  I  ha?e  been  there  two  or  three 
times.*'— Four  times,  Sir  ?  **  He  might  have 
been  there  three  or  four  times.'*  At  last  it 
came  up  to  ten.  "He  could  not  say  but  he 
had  been  there  ten  tiroes!"  But,  says  be,  I 
bad  never  been  in  the  hay -loft.  In  this  1  be- 
lieve bim,  because  the  defendant  appears  to 
have  been  helped  to  no  description  of  it. — If  he 
bad  been  there,  be  might  have  asked  some 
questions  about  that  too,  which  she  would  also 
have  answered  in  the  affirmative :  but  though 
he  might  have  never  been  in  this  hay-loA,  yet 
he  had  been  all  round  the  bouse,  and  must  have 
known  by  the  ouuide,  that  there  was  such  a 
room,  and  where  the  windows  were. 

He  swears  further,  that  as  soon  as  the  de- 
fendant went  into  the  kitchen  at  Wells's,  she 
pointed  to  the  door  leading  to  the  workshop, 
though  it  was  shut,  and  said,  «<  This  is  the  door 
leading  to  the  room  in  which  I  was  confined." 
But  Scarrat,  not  knowing  what  the  other  wit- 
ness«*s  bad  sworn,  aAer  having  out-run  them  all, 
was  reduced  to  the  necessity  of  giving  evidence 
against  the  defendant  by  answering  this  ques- 
tion, viz.  If  she  had  ever  been  before  in  the 
kitchen  with  the  door  of  the  workshop  open, 
and  yet  had  taken  no  notice  of  it,  and  had 
never  pretended  to  recollect  the  place  till  after 
she  was  in  the  workshop,  and  this  too  after  she 
had  been  in  every  other  room  of  the  bouse, 
supposing  all  this,  what  he  wouki  have  thought 
of  her  P  Little  dreaming  of  what  had  been 
proved,  be  answered,  it  would  have  led  him  to 
disbelieve  her  whole  story. 

This  is  the  man  who  was  present  at  Mr. 
Alderman  Chitty's  granting  a  warrant  against 
Mrs.  Wells  for  a  capital  felony  ;  who  knew  by 
the  descriutiou  she  could  not  be  the  person 
meant,  and  yet  be  never  dropt  the  least  hint  to 
prevent  it :  and  now  he  denies  bearing  any  ill- 
will  to  Mrs.  Wells,  his  old  acquaintance,  or  that 
he  ever  vowed  revenge  against  her. 

This  is  the  man,  who,  though  an  entire 
stranger  to  Canning,  first  helped  her  to  a  |>er- 
fect  description  of  the  places  about  Wells's 
house,  which  gave  credit  to  her  story ;  and 
afterwards,  in  order  to  give  her  credit  with  a 
jury  to  convict  two  innocent  women,  by  way 
of  corroboration,  as  he  terms  it,  committed  per- 
jury. 

Mary  Myers  and  Mrs.  Woodward  say,  the 
defendant's  shift  was  neither  draggledf,  nor 
dirty.  Yet  this  was  the  shift,  you  are  to  sup- 
nose  she  had  on,  when  two  men  had  dragged 
her  twelve  miles,  for  six  hours  together, 
through  dirty  roads,  in  January — which  shift 
she  wore  for  a  month  in  a  filthy  room,  and 
upon  her  return  through  the  same  dirty  road. 

Had  this  been  true,  not  only  the  shift  would 
have  been  draggled  and  dirty,  but  her  petticoat, 
shoes,  and  stockings  must  have  been  eitreoiely 
«o-*  Wby  were  they  nerer  produced  ? 


Trial  of  Elizabeth  Cannings 


[620 


Mr.  Lyon,  Mr.  Wintlebory,  and  Mr.  Adaoi- 
son  are  next  called  to  prove  what  pasaed  at 
Enfield-Wasb. 

The  first  of  these  witnesses,  being  an  ex- 
ceeding boneat  man,  aud  cautious  of  what  be 
swears,  has  done  the  defeudant  so  little  service 
by  his  evidence,  that  he  might  very  well  have 
been  sfiared.  He  tells  you,  that  be  himself 
has  no  other  reason  for  lielievin|^  what  the  de- 
fendant said,  than  because  she  said  it;  for  that 
he  never  made  the  least  inquiry  about  it,  but 
swallowed  the  whole  stor^  at  once  upon  the 
credit  of  this  servant  of  bis,  without  supposiiy 
it  possible  she  should  tell  him  a  lie.  Had  his 
bead  been  as  good  as  his  heart,  he  would  eer- 
tainly  have  required  some  reason  for  aaaentiw 
to  the  most  wonderful  story  he  ever  beard  ft 
bis  life. 

But  as  much  as  I  admire  bis  goodness,  I  cs»- 
not  help  being  sorry  for  his  credulity ;  becaost 
I  am  apprehensive,  bis  being  so  easily  to  te 
imposed  on,  might  have  encouraged  the  de- 
fendant at  first  to  invent  this  ridiculous  excais 
lor  absenting  so  long  from  his  service. 

Mr.  Wintlebury  endeavours  to  acconnl  for 
the  defendant's  saying  there  was  more  ha^  in 
the  room  than  when  she  bad  been  oonnned 
there,  by  swearing  that  it  appeared  ts  have 
been  tossed  up,  and  hollow  towanls  the  north 
window.  But  this  stands  contradicted  by  al- 
most every  witness. 

He  says  also,  that  George  Squires  endea- 
voured to  go  away  in  a  hurry,  and  that  be 
would  have  avoided  an  examination.  Though 
this  is  not  much  to  the  purpose,  yet  it  is  a  very 
suspicious  evidence ;  fur  Squires  was  so  weU 
guarded,  it  was  hardly  possible  for  him  to  es- 
cape ;  and  there  being  no  charge  against  hiSBb 
nor  the  defendant  so  much  as  pretending  to 
have  ever  seen  him  before,  what  had  he  to  ap- 
prehend, which  should  make  him  attempt  itf 
Besides,  you  find,  he  voluntarily  aud  readily 
gave  a  full  account  of  himself  and  his  mother, 
the  moment  his  mother  was  charged  with  the 
robbery,  by  declaring  that  they  were  at  Ab^ 
botsburv  on  the  1st  of  January,  and  for  several 
days  after. 

Mr.  Adamson  owns  the  defendant  made  no 
observation  in  the  kitchen  :  and  vet  you  find, 
even  by  her  own  witnesses,  that  she  eould  have 
seen  near  two- thirds  of  it  from  the  room  in 
which  she  is  supposed  to  have  been  confined. 
None  of  them  deny  this ;  and  some  admit,  that 
the  hole  between  the  hay -loft  and  the  kitchen 
was  so  large,  that  she  might  have  looked 
through  the  kitchen  into  the  road.  Now,  if 
she  had  been  in  this  hay- loft  for  a  whole  month 
together,  was  it  possible,  when  she  was  brought 
to  the  kitchen  again,  she  should  forget,  that  it 
was  contiguous  to  the  hay-loft,  and  leading  to 
it  by  only  five  or  six  steps  ?  Whereas  you  find 
by  this  witness,  that  when  she  was  first  broughjt 
into  the  house,  seeing  the  staircase  w  hich  faces 
the  street- door,  she  immediately  said,  she  bo» 
lieved,  **  That  was  the  stair- case  she  was  car- 
ried up." 

It  appears  iocontestably,  that  this  8tair-«M« 


«21] 


Jht  Wilful  and  Corrupt  Ptrjur^* 


A.  D.  1754- 


k  ■!  i  eon^tJeniblp  (iistftnce  frotn  the  liay-lofk, 
iml  liM  nr»  «orl  of  coinnMioicniion  it tth  it.  Ami 
Aillim(»n  liimteir  Rlla«vfi,  it  b  nal  at  afl  like  llie 
Httle  iliitht  f>f  flt^ps  lending  from  the  kitctien  ; 
— ^Uiil  it  struck  liim»  fi>r  lie  tlioiiifhl  it  strane^e 

•>**'  *^* '-t   "t'l-'^ticU  a  mistake.     How   con- 

,  other  nre  the  teftimonies  of 
rat!     Observe  here  the  ^ochI 
tUTc^tftot  a  «f(mraie  cxnminatitin. 

I¥lirn  m\\ff  ws^  cnrrieil  into  the  hay-lnft,  did 
*!ir  immf'diftlely  ?fty,  (whut  she  must  have 
kunwn  bi'ibre  ^he  got  up  three  of  the  stepsi  If 
the  hill  rvrr  been  there  before)  This  18  the 
\%\9cef  No. — Boi  when  she  was  in  the  rootn, 
•Dil  ifCrr  ti  [»ause,  she  recollected^  (having  «een 
rf  rry  other  room  of  the  hoime)  **  Tbit  is  the 
^  more  hay  in  \\V  AJamson 
<  ed  to  him  to  search  about 
iiiitiiier  there  had  been  any  hay 
e^nied  there;  but  that  there  was  noap* 
of  any, — not  a  aiogle  blade  could  be 

Na4  ftcotered  from  the  amazement  into 
wbici  Iber  ownin<T  the  sitair-case  bad  thrown 
kim.  lod  IrAvioff  yet  received  do  proof  of  her 
ttr;  iievisfd  a  naost  ingenious  trial,  to 

w  rlf    (hot  the  defendant  bad  been 

n:<  d  in  the  hay'Ioft.     And  this  was 

H  ler  conccrningr  the  prospect  from 

til*  Dut  this  Kag^acioos  gentleman 

b  \*\%K  of  the  exfveriment,  m\\%\\  she 

hid  iwcn  ui  the  room  for  the  Fpaceof  Breoi'iiix 
■iiiftef^  to  f  urn  lis  h  herself  with  ohservatinns. 

And,  after  all,  \s  hat  ti  ai  her  answer^*  '*  f]il1s 
mi  li««  at  a  distance,'*  The  chnnces  were 
aoy  in  her  favour,  that  bills  and  trees 
^  lie  «c«ii  from  any  country  \iindow,  that 
t  Viif  bl  have  ventured  this,  before  she  was 
ttmedih^re,  But  if  Mr.  Adamson  had  not 
Wen  overfimd  of  removiuf^  doubts,  he  would 
Mlaioly  have  refjnired  a  more  ample  descrip* 
tioa  of  a  prospect  the  pretended  to  have  bad 
hf  a  raonlh  tii|;elher.  The  trees  were  almost 
ptrpmg  tn  at  the  window,  and  mu*!t  have  been 
■tin  by  her,  as  well  as  the  hilts^  as  soon  as  she 
^attrcd  the  roimL— But  besidei  tliese,  there 
»cre  nrtatty  other  things  (as  you  find  by  the 
»nnttifw)ol»ervable  from  theVoom.  A  h'edgre, 
"  I  a  ditch  broad  eooug'h  tor  a  foot- way,  just 
the  vnriie  window,-^severat  fields,  both 
*■(  •"•■<  ill  ^jiss,  and  a  variely  of  other 
''  r  to  he  mentioned,  in  ansnrr  to 

»  i  n  rtfsiK'h  a  tendency.     And  yet, 

^^r  of  **  hills  and  trees  at 
I  lent  with  Mr.  Adanif^on 
proof  sIm  bad  just  before 
fh«  uerity. 

Veal»u  sM«»ir-i,  he  helped  to  pull  down  the 
%rA%  frofti  th**  %%tr»dow,  and  that  Mr*  Colley 
•»  ~        WIS  a  fact  so  very  mate- 

^  one  of  the  capital  ob* 

Jwiiotji  (o  daol's    credit,   that  one 

bi%*"  I   «be  fullest  evidence  to 

V       «       I   y    iiijtl  iicen   before  called  to 
s    N'*i  materinl,  but  he  has  ikH 
vvurd  of  tliii.     From  wlience  one 
kirljr  coocludii  liiat  Colley'a  account 


of  this  matter  would  have  done  the  defeodant 
or  Mr.  Adamaoii  no  servicet 

The  willin^nesi  of  Adamson  to  reconcile  all 
di^cultien,  and  rejjpiin  for  the  defendant  a  for* 
feitpil  credit,  appears  by  his  ridin|f  back  to  8sk« 
her  about  the  hay«  To  obviate  this  objection 
to  himself,  he  has  ventured  to  deny  even  hit 
sa/mgf  to  her,  *^Whatf  hay,  Bet  !'*  But  be 
dares  not  disown  his  riding  back  tu  fnfortu  him* 
self  about  it ;  and  another  of  the  defendaot^a 
^fitnesses,  who  was  then  with  her,  swears  la 
the  very  words.  Thai  other  witness  was  ma-' 
tertal  toseveral  facts,  as  well  as  Mr.  AdHmseii;^ 
and  as  one  of  them  must  be  forsworn  (unleaa 
the  doctrine  of  mistake  is  to  prevail  univerBally) 
it  will  be  of  equal  advantage  to  the  prosecu* 
tlon,  give  up  which  you  please. 

Beats,  the  turnpike  man,  was  the  next  wit^ 
n ess  to  prove  his  seeing  the  defendant  on  the 
1st  of  January  carried  by  two  men  in  the  road 
towards  Endeld.  But  what  does  he  prove  P 
Most  clearly,  that  he  never  saw  her  there  ^ 
which  appears  past  ail  doubt,  even  by  the  de* 
fendant's  own  testimony.  8be  swore,  she  was 
stripped  of  her  gown  and  apron  in  IMooHields, 
and  had  neither  of  them  on  when  she  arrived 
at  Wells's ;  but  Beals  swears,  the  woman  be 
saw  had  a  light' colon  red  gown  and  an  aproKt 
on  :  so  that,  of  all  the  women  in  the  worid|: ' 
whoever  it  was^  certainly  it  was  not  ElizabettrJ 
Canning'.      *  • 

There  is  another  reason,  why  she  could  not 
be  the  j*ers(m.     Canning  was  insensible,  in  m 
convulpive  fit,  and  therefore  unable  to  walk  i 
vard;  but  the  woman  Beals  saw,  so  far  from^ 
Iieing  borne  by  two  men,  was  walking  very 
fast,  nimbly    going   along  the  road,   sobbing^  I 
and  crying  ;  whilst  one  of  the  mea  wa«  pulling*  i 
her  on,  saying,  **  Come  along,  you  are  drunk  ;" 
the  other  following,  **  Lord,  how  druitk  shftj 
is  !"   CJould  this  be  Elizabeth  Canning?  Were  ^ 
the  cries  he  heard,  like  the  screams  of  a  woman  | 
in  a  convulsive  fit?    Could  Elizabeth  Caniiiog^  I 
in  her  then  condition,  without  either  gown  op  J 
apron,   be  the  person  this  witness  describes  FN 
How  many  imposi^ibihiies  roust  b«  iwalloweili 
to  suppose  this  womau  guiltless  ? 

But  even  these  arc  not  the  only  proofs  tt  wa 
not  the  defendant,  whom  l^ls  is  supposed  t<i1 
have  seen  on  the  road.  For,  if  you  consider  \ 
the  |d;ice  and  time  of  tlienight*  you'll  find  auo^j 
ther  impossibility  to  contend  with. 

Whut  Beals  has  t^ven  an  account  of,  wai] 
at  Stamford-hill  turnpike,  about  four  mile«i  fronij 
r^l  I  Mir  tie  Ids.     According  to  the  defendant's  evi*l 
ttcnce,  she  was  robbed  in  Moorfie|d$t  hetwevtt] 
niue  and  ten,  and  shentriied  at  Wells's  a1»ou| 
four  in  the  morning:  so  that  this  journey  i 
eleven  miles  (the  distance  betiveen  Moorficldi 
and  WellsS)  nutst  have  taken  up  uhorc  siH 
hours;  at  whicli  rate  of  travelling,  she  could 
not  have  rrnclicd  thii  turnpike  till  almost  twelve 
o'clock*     But  what  Beals  saw  was  betwixt  teq 
and  eleven,  which  was  but  an  hour  afW  tbi 
defendant  was  first  attacked  tn  Moorfields. 
it  possible  that  two  men  could  have  carried  lief|^ 
in  iuch  a  condition,  four  nailet  in  oue  boiirt 


6SS] 


27  GEORGE  II. 


TriiU  of  Elizabeth  Cantung, 


[m 


Betides,  the  witnett  is  uncertain  as  to  the 
day  of  the  month.  He  swears  only  to  the 
**  fore- end  of  January,"  bat  is  not  able,  by  any 
circumstance  whate? er,  to  fix  it  to  the  first  day 
of  the  month.  Wliereas  New-year's  day  be* 
lag  a  very  remarkable  time,  it  is  probable  he 
would  have  been  able  to  recollect  it  particu- 
larly, liad  tliat  been  the  day. 

iiiicU  was  the  evidence  of  the  defendant's 
beinnf  seen  upon  the  road,  between  London  and 
£ufield-Wash,  on  the  1st  of  January.  Let  us 
DOW  examine  the  proof  of  her  bein^  seen  in  her 
retam  home  upon  the  29th. 

Thomas  Bennet,  the  first  witness  called  to 
this  fact,  says,  that  about  a  quarter  of  a  mile 
from  Mrs.  nells's,  ancVjtwenty  poles  below  the 
ten- mile  stone,  he  met  a  woman,  **  miserably 
poor,  without  either  gown,  stays,  or  hat,  vet 
with  somethinfjT  about  her,  not  a  gfown :"  that 
■he  appeared  to  be  a  stranger  to  the  road,  for 
ahe  enquired  the  way  to  London,  and  told  him, 
*'  She  had  been  frightened  by  a  tanner's  dog." 

Had  he  omitted  this  last  circumstance,  there 
had  been  nothing  to  detect  him  of  falsehood 
by;  and  the  fact  would  then  have  depended 
merely  upon  his  credit,  which,  probably  by 
appearance,  could  not  have  weighed  much,  un- 
tupuorted  by  other  proofs.  But  the  incident 
of  the  tanner's  dog  has  quite  defeated  his  evi- 
dence,  for  it  was  impossible  she  could  tell  him 
of  this,  in  her  way  from  Enfield- Wash  to  Lon» 
don,  before  she  was  come  so  far  as  the  tanner's. 
She  might,  indeed,  have  met  a  dog,  and  been 
irighteoed  by  him ;  but  how  could  she,  a  per- 
fect stimnger,  know  he  belonged  to  a  tanner  ? 
This  witness  tells  yoa,  the  tanner's  is  an  hun- 
dred yards  on  this  side  of  the  ten-mile  stone, 
but  he  met  the  woman  twenty  poles  below  tbe 
ten- mile  stone-  and  it  was  not  the  witness,  but 
the  defendant,  who  called  it  a  tanner's  dog. 

This  will  not  be  thought  too  nice  an  objection 
to  the  credit  of  one  deirasiog  a  fact  not  very 
credible  in  itself,  and  which  you  will  find  to  be 
false,  when  coupled  with  the  evidence  of  the 
subsequent  witnesses.  And  in  a  case  of  (his 
extraordinary  nature,  where  the  defenifant*s 
attorney  (not  the  present  attorney,  to  give  him 
bis  due)  had  advertised  for  evidence,  it  became 
necessary  narrowly  to  watch  every  circum- 
stance coming  from  tlie  mouth  of  a  witness  in 
so  low  a  station  of  life. 

The  next  witness  was  David  Dyer.  He  says, 
be  saw  a  "  poor  distressed  creature"  pau  very 
alowly  hy  him  on  the  29th  of  January ;  that  he 
said  To  her,  **  Sweetheart,  do  you  want  a  hus- 
band?" Being  asked  to  give  an  account  of 
her  clothing,  he  says.  She  had  a  while  hand- 
kerchief on  her  head.  In  this  be  goes  too  far ; 
liir,  according  to  her  mother's  account,  the 
white  handkerchief  was  covered  by  a  coloured 
one,  which  she  had  taken  out  of  her  pocket, 
and  which,  from  the  amallness  of  the  white 
one,  must  have  totally  concealed  it. 

Willing  to  fix  every  drcomstanco,  bo  swears 
lo  sooictliiiig  that  may  answer  lo  iIm  bed-frown. 
••  A  sbofMh  ikiog  dbmrt  Imt,  thai  «d  Bol 
?tfjlow}»MidiMk  konwllM 


afterwards,  and  took  her  to  be  the  same  person 
with  the  prisoner  at  the  bar.  But  being  called 
upon  to  describe  her,  as  she  appeared  to  him 
upon  the  road,  this  witness,  unacquainted  with 
what  the  rest  hsd  sworn  (another  good  effect 
of  a  separate  examination)  proves  most  dearly, 
that  the  person  he  saw,  if  any  one  he  aaw,  was 
not  £liKSLbeth  Canning.  Her  face,  says  he, 
was  very  pale,  not  black,  but  whitish.  Ho 
looked  earnestly  at  her,  and  particularly  ob* 
served  her,  and  did  not  only  admire  her*  face, 
but  her  hands  too— they  were  delicately  white. 
Refer  yourselves  to  the  descriptiim  given  of 
her  at  her  return  home,  particularly  by  tbe 
apprentice :  **  she  was  black  and  blue,  as  if 
beat,  her  arms  and  face  as  black  as  his  hat.'* 
CoukI  this  be  a  pale  woman  with  a  white  Imd^ 
whom  Dyer  met  niion  the  road  ? 

Mary  Cobb,  the  only  remaining  witness  Is 
tbe  defendant's  being  on  the  Enfield  ruadsa 
the  29th  of  January,  awears  she  met  b« 
creening  along,  in  the  middle  of  the  three 
Ducks-fields,  between  the  five  and  six-mile 
stones.  This  is  said  to  be  a  mistake,  and  that 
it  is  between  the  six  and  seven-mile  stones. 
Take  it  either  way  :  if  she  met  her  betwoen  tbo 
five  and  six-mile  'stones,  it  wa^near  five  miles 
from  Wells's ;— if  between  the  six  and  seven- 
mile  stones,  it  was  near  four  miles  firom  thence; 
for  Wells's  house  is  about  the  midway  betwcea 
the  ten  and  eleven -mile  stones. 

Now,  by  comparing  this  woman's  evidcsoe 
with  what  the  defendant  has  sworn,  yon  will 
find  it  impossible  to  be  true. 

The  defendant  swore  she  set  out  firom  sm- 
ther  Wells's  at  four  o'clock,  and  that  tbe  deck 
struck  ten  as  she  was  going  over  MoorfieMi: 
so  she  was  six  hours  travelling  eleven  mihii 
(the  distance  betw  een  WelU's  and  AloorfieUi) 
K  hicb  is  less  tliau  at  the  rate  of  two  miles  u 
hotir. 

Reckoning  from  the  time  the  defendant  bc^ 
self  has  tixed  tor  her  setting  out,  it  must  haff 
been  past  six  before  she  had  crept  to  the  mkMie 
of  the  three  Ducks- fields,  supposing  it  U»  bl 
but  four  miles  from  Wells's,  and  if  five  miH 
then  it  must  have  been  half  an  hour  Uier. 
Now,  at  what  time  did  this  witness  see  bfr? 
She  says  it  was  duskish.  The  39th  of  Js- 
niiarv  was  ihc  day  after  a  new  moon,  so  tbcfs 
could  be  no  moon-light ;  snd  if  it  was  duskidh 
it  could  not  be  so  late  as  five  o'clock.  A  gnU 
deal  of  pains  was  taken,  in  the  cross- exainiot- 
tion  of  tliis  witne^ts,  to  ^x  the  time  of  her  beiaf 
at  the  place,  where  she  is  supposed  to  bare 
met  the  defendant.  .At  three  o'clock  she  kA 
hor  ow  n  houst\— she  had  a  mile  to  gu  to  ooe 
.Mrs.  Carters— slie  had  been  tliere,  but  I  think 
staye«l  not  a  minute.— she  called  no  where  oa 
the  road,— she  migl.t  indeed  be  detained  a  liuh 
by  aaiu;uutances,^wlio  mtrt  her,  but  made  Si 
cousideraMe  st««p  any  wltere, — and  met  Css- 
uiug  within  a  quarter  of  a  mile  of  hero** 
house,  on  her  return  home  ;— so  then  she  m^ 
have  walked  a  mile  and  thr«e  qoarters,  and  ii 
mofv,  from  three  o*clock,  and  make  vory  KMli 
■toy.    How  iMo  could  U  poMblj  hn  Uw!' 


Wilful  and  Corrupt  Perjury. 


A.  D.  1754. 


[628 


i 


Lei  thin  woman  erepp  iia  slow  as  Bhe  pleases, 
let  her  be  as  !>Iovr  in  t»a)kinfif  as  sUe  appears 
in  inreiition,  ahe  could  not  i^ke  out  Ibe  lime  so 
«s  to  m^et  llie  derenduiit.  Even  five  o'clock 
will  nut  d<)— iliiskiBh  will  not  auswer — it  must 
have  been  past  six  befttre  Cairning  could  pos- 
«hly  come  to  that  place^  liy  ber  own  calcula- 
tion. But  I  bin  Mrs.  Cobb  bascven  vcrnlureil  to 
swear  to  a  pf'rtVcl,  an  absolute  remenilirancc  of 
the  defendiiiit's  face,  by  ibe  lip  of  her  nose  1 
By  H  bat  light  coulil  ibe  make  so  nice  an  ob- 
servalion^  after  six  io  tbe  evening,  on  ihe  29th 
of  January? 

Upon  the  testimony  of  these  three  last  wit- 
nesiiea  I  iball  only  make  this  further  obser- 
Talion,  thai,  if  it  were  passible  to  admit  they 
SAW  any  person  in  the  manner  ibey  have 
flworn,  it  appears,  by  erery  circntnstance,  they 
ftll  saw  one  and  tbe  esme  person,  and  tjie  evr> 
dence  of  Dyer  fully  proves,  that  woman  was 
not  the  defendant. 

These,  genitemen,  are  the  objections  which 
bmf e  occuireil  to  me  on  that  part  of  tbe  case, 
relatintr  to  tbe  defenilant's  having  been  seen  un 
I  Ihe  Eiilietd  road  on  the  l^t  aud  29th  of  Ja« 
liuary :  by  tvbicb  it  appears^  that  her  friendi 
i  bare  reaped  no  g^reat  beoetit  from  their  ad- 
vertisings for  evidence. 

The  next  attempt  was  to  answer  tbe  proofs 
we  gave  of  the  gypsies  being  at  Abbotshury  on 
the  1st  of  January;  in  my  observations  upon 
which^  I  ^batl  not  hike  np  much  nf  your  time. 
Indeed  I  cannot  take  npon  mvself  to'enter  mi- 
ouiely  into  the  evidtnee,  bfTanse  1  wus  uu- 
aviiidably  abijent  yeslertlay,  when  loost  of  the 
witueiises  to  it  tvere  exaiViiiit  d.  But  from  ihe 
BOlea  of  rny  learned  frirnd,  tbe  et^nileman 
whom  I  have  the  honour  to  assist,  I  am  au- 
thorized to  say,  tbe  defend  not  haa  bad  no 
belter  success  in  tbb  part  of  her  cuse^  than  in 
the  resit. 

Arc  tbe  witnenses  to  prove  tbe  ijypsey** 
boD^:  at  Enfield  before  tbe  24th  of  January  so 
Y«ry  certain,  both  au  to  tbe  person  of  Mary 
Squires,  ami  the  exaci  limes  of  seeing'  ber 
there,  as  to  leiive  no  posHibibiy  of  mi!»t.'ike  ?  If 
ao,  this  will  re!»t  merely  upon  tbe  credit  of  the 
I  Witnessips ;  other vvifte  a  xvdl  not  admit  of  dis- 
pole.  For  it  is  most  certaioi  that  tlie  witnes- 
for  the  crown  cannot  post»ibly  be  mistaken 
io  either  of  these  respects. 

Jt  IS  oltservable,  that  none  of  tbe  defendant's 

Witnesses   pretend   to    bare   ever  seen  Mary 

iBooires    with   either    of   ber   two    children ; 

Wbercas  every  ojie  of  oiu'  witnesses  sweam 

^directly  to  nil  tbeir  persons. 

With  what  uncertainty  do  tbe  defendant's 
Iwilnetaes  speak  also  to  point  of  time  I  Some 
rajf  Iheni  do  nut  know  one  day,  and  some  not 
Iwke  month  from  another,  and  some  are  igno* 
jfmjit  «*beiher  Cliribtmas  is  io  June  or  January. 
f^-One  keeps  tbe  day  of  tbe  month  by  bis 
yck>ck,— anutiier  lefers  herself  to  the  almanack, 
fWtthout  bein|>f  able  to  disting^uish  by  it  what 
4my  of  the  week  sui^h  a  particular  day  of  the 
faiafith  was.  Tbe  ex:periiuent  was  made  upon 
her  crois-examinatioBj  uid  aa  ftlataoack  was 


put  into  her  hand,^ — she  understood  nofhinjj  ly 
it.  But,  says  she,  I  swear  from  the  as^istancQ 
of  a  sheet  almanack  ;  yet  what  bad  been  &hewa 
her,  was  tbe  same  cut  into  lea  res » and  bound  up, 

Gentlemen,  those  who  pretend  to  be  positive 
as  to  time»  either  refer  to  circun|stances  incon* 
elusive,  or  to  papers  and  books,  not  one  of 
which  has  been  produced.  It  was  material  for 
them  to  be  e.^act,  end  tliey  saw  tbe  necessity^ 
of  betog  80.  Why  then  did  tbey  produce  U9 
written  evidence  to  ascertain  facts  of  such  con- 
sequence, since  by  their  own  account  this  wai 
to  be  bad.^ — Is  it  not  apparent,  no  diligence  has 
been  wanting  in  this  defence  to  lay  before  yoir 
every  circumstance  that  could  be  conBtnied  in 
tbeir  favour?  To  what  cause  can  such  omissiua 
be  ascribed  ?  Persons  speaking  merely  upon- 
memory  are  very  liable  to  mistake ;  and  in  a 
cause  of  so  much  spirit,  the  zeal  of  witnesses 
may  ur^e  them  to  strain  tbe  truth  at  least,  eveti' 
where  tbey  would  not  veatme  at  direct  perjury/ 
Falsbood  is  glossed  with  doubtfulness,  ait4 
doubts  are  raised  to  certainty. 

An  instance  of  this  was  e.vemplitied  in  tbo 
evidence  of  Anne  Johnson,  who  swears  she 
saw  Mary  S^^uires  at  Enfield  on  the  13th  of 
January.  Was  it  fiossible  for  any  witness  to* 
be  more  positive  than  this  woman?  She  re- 
meiuberi  tbe  time  perfectly;  it  was  Just  two 
diiys  after  she  carried  ber  work  home  to  Mr, 
Smitberam  her  master,  who  entere<l  in  bis  boolc' 
tbe  time  of  its  being  both  delivered  out  and  ro* 
turned. 

Here  was  a  reference  to  a  written  memnran- 
dum,  and  tiie  producipif  it  wouhl  have  fixed 
tbe  lime  past  doubt.  Yet  this,  like  ill  tbe  rest, 
was  Ibrvujjbt  proper,  by  those  concerned  for  ibe 
defendant,  tfi  be  I  ell  merely  upon  the  credit  of 
memory.  But,  by  ntTideut,  we  got  access  to"' 
Mr.  SmilberiMii's  book  of  acrountii;  anil  be 
and  his  daughter,  in  whose  liand-wrinnpr  ihe 
entries  were,  have  been  ^o  kind  ttiis  moi*nm{^, 
as  to  prodnce  tbe  very  hook  which  Anne  .fohn- 
fion  referred  to;  by  wliicb  it  appears,  that  the 
vrork  was  carried  iiomeon  the  ^:Jd  ol  January. 
So  that  the  time  of  her  having  seen  Mary 
Squires,  two  days  al^erf  mue<i  have  been  on  the 
2^lb,  which  was  tbe  day  after  Squires's  coming 
to  Enfield,  according  to  Ihe  account  of  all  our 
witnesses. 

1  do  not  mean  by  this  fo  impute  any  thing' 
more  than  mistake  to  this  Anne  Johnson.  But, 
it  s>hews  how  uncertain  memory  is,  how  post> 
tirely  witnesses,  warmed  into  a  contention  for 
victory,  will  depose  facts,  which  they  nbould 
relate  with  some  degree  of  dotiblfulness,  and' 
shews  indeed  tbe  reason^  why  no  books  or 
papers  are  producetl,  ! 

SSarab  !!ttar  swears  Io  tbe  IBlh  or  19th  or  Jft** 
nuary,  and  refers  lo  a  note  of  hand  of  tfae^ 
same  date,  which  she  delivered  to  Mr.  Miles, 
the  defendant's  then  attorney.  But  neither 
tbe  note  itself,  nor  Mr.  Miles,  nor  the  person, 
who,  Star  says,  brought  tbe  note  to  ber,  is 
produced. 

lu  sborl,  for  it  is  time  to  make  tn  end,  no- 
thing conclusive  appears. 


827] 


27  GEORGE  II. 


[«• 


<Srace  Kirby,  •ootker  witom,  rotdy  m  the 
reel  lo  fix  an  early  kiaoe  of  teaiB);  Squirei»  upon 
lier  crf»M-exaaiiDatioD  ii  not  eefUin  of  having 
seen  ber,  till  witbio  eight  days  before  ^luirea'a 
beiDg  ap|irebeiMled»  which  wm  on  the  lal  of 
February. 

Wise  basset  is  sure  of  the  time,  beeaose  the 
killed  a  bopr  en  the  Tborsday  before  New 
Christnaas  day ;  and  she  has  oo  other  reason 
ftr  fiziog  the  time,  but  becaase  it  was  the 
Monday  was  a  mooth  after ;  which  hringa  il 
lo  tlie  38d  of  January. 

How  ?ague  and  uncertain  isallthisevideiice, 
compared  with  the  clear,  deteminite,  positive, 
absolute  testimony,  that  Mary  Squires  was  at 
Abbotsbury  on  the  1st  of  January !  1  ahwM  be 
•shamed  to  take  up  more  ef  your  thna  in  abser 
vationa  upon  this  part  of  the  defence. 

They  next  call  Wfurd  and  Jones  to  prove, 
that  Susannah  Wells  confessed  the  defendant's 
confinement. 

Ward,  having  just  read  the  newa-pnper  re- 
lating the  particulars  of  the  det^Mkint'S  story, 
went  to  see  mother  Welhi  in  Clerkenwell 
Briilewell,  and  Jones  went  with  him  as  his 
friend.  One  of  them  (Ward,  as  1  recollfct) 
asked  Wells,  *•  How  came  yon  to  keep  the  girl 
n  fortnight.^"  To  which  Wells  answered,  •<  U 
was  twenty-eight  tkys."  The  next  question 
was,  **  In  what  room  was  sheP"  The  answer 
was,  *«  You  know  the  room  very  well.''  This 
was  the  whole  conversation  tending  to  a  con- 
fession :  but  such  a  confession,  I  may  venfcnre 
to  say,  was  never  before  ^ven  in  proof. 

Wella,  at  every  other  time,  both  before  and 
after  this  pretended  confeanon,  stoutly  denied 
•very  artide  of  the  charge.  It  is  thereihre 
most  likely  she  did  not  mean,  at  this  time,  to 
admit  it.  And  if  you  consider  the  occasion  of 
Ward  and  Jones  going  there,  and  the  very 
words  of  the  conversation,  you  will  find  that 
Wells  really  coufessed  noUiing,  but  only  cor- 
rected Ward's  mistake  by  the  charge  against 
her.  The  uews-paper  had  mentioned,  that 
Wells  had  confined  the  girl  twenty-eight  days ; 
Ward  had  mivtaken  it  for  a  fortnight,  and  Wella 
•et  him  right.  The  whole  of  which,  taken  to- 
gether, amounts  to  just  as  much  as  if  Wells 
had  more  fully  answered,  vis.  You  are  mis- 
taken as  to  time,  for  I  am  charged  with  having 
confined  her  twenty -eight  days. 

Her  answer  to  the  other  questKNi  naturally 
bears  the  same  construction,  *•  You  know  the 
room  very  well."  What  room  did  he  know? 
That  which  he  had  read  an  account  of,  and  in 
which  the  girl  had  said  ahe  was  confined. 

This  is  the  natural  and  the  only  sensible  ex- 
posilion  of  the  words.  If  Wells  intended  to 
confess  the  crime  she  was  accused  of,  some- 
thing more  would  have  been  said,  explaining 
the  motives  and  design  of  such  an  extraordi- 
nary traniiaction.  The  same  curiosity,  which 
carried  these  two  witnesses  to  Bridewell,  wouU 
certainly  have  urged  them  to  further  questions, 
and  the  same  candour,  which  this  pretended 
confiBssion  supposes  at  this  time  in  Wells,  woaM 
«t  certainly  have  led  h«r  t»«ifliail 


If,  on  the  contrary,  Welki  did  nei  in 
confession,  how  infamous  was  it  in  these  i 
bv  a  pretended  mistake  of  a  fortnight  in« 
of  twenty -eisrfat  days,  to  ennnare  her 
an  answer,  which  by  an  eqnivacal  tnterprela* 
tissi  ahoukl  amount  to  a  conftssion,  and  ]mnm 
It  nnexphdued,  in  order  to  be  fbminhed  wHh 
evidence  f 

If  this  wna  the  only  icandahiiia  part  of  Iha 
defence,  it  would  require  more  obwrVatieo  thna 
I  ahall  treoble  yon  to  make. 

Tp  ••  little  porpoae  was  the  attempt  bv  Ptal 
Stevens,  a  publican,  to  prove  the  cnnwilsa 
of  Maiy  Squires  in  ClerkenweU  prison.  Thii 
vritness  went  there  with  tvroor  three  gi  ntlw— 
to  see  her,  abont  three  or  four  dayn  nfiet  km 
ouBMDilment  But  who  these  geotlcHMO  h^ 
or  why  thay  do  not  appear  to  Mmpoit  f 
man's  evtdenoe,  we  know  not.  Tm  wI 
ooofesaioB  aroounta  to  no  more 
namely,  *<  What  I  am  here  for,  I  am  inn 
of:"  and  afterwards  speaking  of  bsing  i| 
Welle's  house,  «<  I  believe,  wbibtl  wmI 
£liaabeth  Canning  was  them.**    This,  i 


alone,  they  oall  a  confesHon;  toprocorowhiehi 
they  treated  her  with  a  bottle  of  wine.  Sfvwi- 
tiea  bad  been  tried  before  to  no  osaasr  ef 
purpose :  she  bad"  been  compkioing,  that  thsf* 
bad  bufieted  her  abont,  becanae  she  was  not 
willing  to  answer  qnesttona.  Bnt  good 
and  a  bottle  of  wine  opened  the  old 


heart,  and  she  frankly  bonfesasd  to  these  eiii 
gentlemen,-^What  ?— that  ahe  was  innnosnl 
of  the  charge  against  her.  But  she  heftwisd, 
whilst  she  ww  thera,  Elizabeth  Gnamng  mm 
there.  She  never  aaid  ahe  knew,  hot  anebs- 
lieved.  It  is  plain  she  never  saw  ker ;  fk  if 
she  had  ever  aeen  her,  it  conki  not  rest  npsn 
her  belief.  And  the  witness  himself  is  m 
doubtful  of  the  words  spoken,  that  nethisg^ 
besides  the  innocence  of  Squires,  and  the  per* 
jury  of  Canning,  can  be  collected  firom  it  it 
first,  Stevens  was  positive,  that  the  vrordawsr% 
*<  I  believe,  while  I  was  there.  Canning  wis 
there."  Then  the  witness  believes  tbeas  wwe 
the  words — and  then  the  words  were,  **  To  to 
sure  Canning  was  there,  aa  I  believe."  Auk 
several  tiroes  aflerwants  the  witnesa  varied  ihf 
expression,  and  could  never  fix  it. 

What  a  confession  is  here  proved!  AstcdM 
declaration  of  her  own  innocence,  coupled  with 
a  belief,  touching  a  transaction,  which,  if  isas* 
cent,  she  must  be  ignorant  of. 

This  poor  woman  was  a  stranger  to  WsH( 
having  never  seen  her  till  the  84th  of  Jannsiy, 
when  she  came  to  lodge  in  her  house.  Eigm 
days  aller,  she  (with  all  the  people  of  the  bouse) 
was  apprehended  on  the  accoaatioo  of  Caaniaf  i 
that  she  had  been  robbed  and  confined  tbcre.p-« 
Wells  lN>re  an  infamous  character  nniversaHjt 
Canning's  complaint  waa  fiivoored  by  sevshl 
persons  of  credit  and  reputation  ;  and  tbcreAfS 
Squires  wss  incliued  lo  believe  the  girl  boi 
bc«n  robbed  by  somebody,  and  that  her  slsiy 
night  be  partly  true.  But  her  own  jnnnssnss 
ahe  pernated  in  ;— «o  th«t*a  an  eat  af  il 


Ji}r  Wilful  and  C^rrup  Pirjnry. 
impetch  the 


k.r>.  vtB%. 


[«» 


Mil   Witfl6lli#«   to 

I^Naiuteint)  bis  wi^b. 
NiilittuH  Crumijliorac  my%,  tliAt  to  Jalel/ 
Mlut  Frirfiy  fortnit(tii,  the  £l«t  or  April,  he 
tikBd  Jiiiitti  NttUB,  **  Now  c«me  you  tf>  hare  | 
ite  eaiiteie»e«i  knuwlnisr  this  poor,  innocent 
WMgtfM  Wit  at  mother  Wells'i,  to  n^  &nd  he 
MiMt  ktrf*  Audi  hat  Judith  Naiim  antwer- 
iJ,  *«  liUMedt  Mr.  Cnimphornef  1  cannot  say 
jwn  ahg  icilly  wai  there,  wheu  we  lodged 

Iheie  words  at  an  etciMe,  ifi 

Cfiimfihorne'f  reproaeli  for  giriof 

againsi  Cftoningf^  you  will  ha?e  no 

r  in  Miering  tlie  rery  rererse  of  what 

IMIWiyiiii  lotetMli  \  and  eoiislderini^  the  time 

•f  Ikit  tiPitfersiiloa,  it  ioobi  a«  ifthU  Crutup- 

lamt  was  lamiicrfiig  t* ith  the  witoeMs  to  swesr 

vtel  la  truth  ahe  eonld  not.     Criimphome  it 

metmhk  It  etery  word  tookeii,  and  indeed  It 

Wit  wy  material  h^.  ihoidd  he  io;    f^r  hy 

Hflhte  oy|  the  ain^le  word  *  but,^  the  sense , 

wMlilt  entirely  altered »  and  then  the  answer 

•mM  li  proper  to  the  question.     And  that 

Orlwptiflroe  ^oea  too  far  in  swearings  to  the 

fVf  wyniPiioii^  appeara  by  the  next  witoesa, 

1  wife,  who  gives  evidence  of  these  word<i 

lotf«ed,  Mr.  Crumpborne,  Bhe  really 

wn^  when   wo  lod^d  there/*     The 

'pari  of  the  words,  ^'  I  cannot vay  but,*' 

iiiBllraly  M  ont«    80  that  it  remiina  ilonh^ 

illi  wlittt  Were  all,  and  the  particolnr,  though 

itw,  wwhia  made  uwe  of  upon  thia  occaiton. 

YiW  Wtll  lh<TLTi>re  apply  your  attention  to  ihe 

nktUDt  onvers^uioOf  that  Judith  Nn- 

laiWa»r>  J  with  fpfing  fa  life  evidence, 

aid  that  ahe  wtta  justify inn^  heraelf 

That  Natua  and  his  wife  Uy  at  We1ls*i  dlir- 
iif  thcniontt)  of  January,  is  stipposed  eren  hy 
tlai  fery  wiine^.  Now,  I  should  be  glad  to 
kiow  in  what  part  of  the  houiCe  they  lay.  h 
•pprara,  I  hut  every  other  room  in  the  fiouBe, 
«aefil  the  hay* toft,  wan  wholly  oecnpieil  hy 
lltrwt  ot  the  fmnily.  And  if  they  lay  in  the 
Iiy4afl,  it  eould  not  he  while  the  defendant 
•li  ihM,  beeatrae  she  iwore,  "  she  did  not  sec 
creature  during  alt  the  time  of  her 
at»  but  ODce  through  a  crack  of  the 

^•rHier,  lo  diaeredit  Fortune  Natus'a  en- 
oM  Jarkaon  ia  called  to  prove  the  pro* 
al  of  a  waiter  by  Naina,  at  the  Four  J^wans, 
nlier  he  had  not  lain  out  of  Wrlh**  house  a 
«lft^  "  Mig  the  inonih  of  January. 

^li  » >  I  to  cjontradict  Natug^  tui  ha*. 

I  '  liie^i  propoaiugany  luch 

>  Nntua  waa  ao  Wt  from 
:  u,  iur^i  he  riimtelf  gare  an  account  of 
\  lain  ttut  oi  ihe  houie  one  oittht^  and 
And  his  wife,  you  may  n?m»'mhcr, 
aame  Drcount.  This  clrt  ttnHtance, 
- -J  by  the  defendant's  ^itopsis,  would 
1 10  Twna,  if  he  stood  iu  nn^rd  of  it. 
}  tmm  otWeace  it  to  the  impeachment  of 
KaiBf *•  ehararter,  hy  three  petaoni  aweartng 
9tili  »iMdi  raneour  and  malic«,  aa  ia  lufficient 
liteertirow  li  fMinet  of  credit  m  thcmielf  eai 


ar  u, 


One  of  them,  in   eifect^  tays,  he  belierea 
Fortnne  Natut  ii  «o  infamous  a  follow,  ihtlj 
without  the  temptation  of  interest,  or  any  pai»l 
aion  to  indulge,  out  merely  for  the  sake  of  gif« 
ing  fjtwe  testimony,  and  from  his  propensity  t 
lyiiig,  he  would  perjure  hiiiMelf  in  a  court « 
justice. 

But  let  not  human  nature  bear  the  rtpmicll 
of  ^nch  n  character. — There  cannot  be  a  man  on 
thit  tide  hell  «o  al>andoned  hv  his  Maker,  at 
that  rash  wit  nets  wonid  have  you  to  tiiinto. 
The  earth  has  never  bore  such  a  mottater,  af  til 
fall  in  love  nitb  naked  faUhood.  What  devil j 
incarnate  waa  evr-r  heard  of,  who  did  not  in- 
cline Io  truths  till  he  \%as  w&rped  hy  bume  paf» 
tieular  temptation  to  leave  her  ?  Fur  has  ndlj 
the  Auihi»r  of  Nature  crt;aie*l  her  lovely  in  thtt 
eyee  of  all  msinkind  f  Let  any  man*hreatti«>  ( 
tng  ask  Ills  own  heart,  whether  he  w  is  ever 
persundad  to  embrace  a  fAlahood,  till  she  was 
robed  in  the  gaH>  of  truth  to  deceive  him  f  It 
would  be  a  contradiction  in  terms  to  aay  oiher> 
wise.  The  witness,  wl»o  is  cnpahle  oii  repro- 
sentinie:  Natus  In  anch  colours^  mutt  be  i^on- 
i«ious  of  the  trntb  of  this  observation,  and  tetl 
himself  impelled  to  such  a  horrid  misreproa^n- 
taiion,  either  hy  avarice  or  reveoge,  or  aomo 
passion  which  he  dare^  not  avow. 

But  see  the  real  character  of  this  Nalos,  I 
one  who  knows  him  better. — Mt.  Bell,  hi 
tnaeter,  say  a,  he  has  known  him  very  well  I 
fifteen  months  past,  and  that  he  it  his  servant  i 
—that  he  is  a  ^evy  honest,  civil,  and  ioduf 
irious  man  } — that  he  never  once  caught  hid 
in  a  lie  in  his  life;— that  be  has  now  eiirht  setwj 
vants,  and  would  be  j^lad  to  have  his  fellow. 

The  same  man  may  indeed  have  ieveral  chi»l 
meters,  as  dillarent  people  are  dift'erently  al^J 
llNJled  to  him.  And  perha[»a  ii  would  be  a  t^o ' 
general  rule,  to  take  the  n*^iiom  betwixt 
two  eiti^mea  of  any  character  whatever.  Bd 
surely  there  never  were  two  such  extreme*  < 
these  n;jf  the  same  character  before  | 

And  f  the  nature  of  Ihe  evidence,  an 

who  art  iiir  **itnesse8,  I  may  rery  safely  re 
u[)aD  the  credit  of  Natus's  teslimuoy,   esp#-] 
dally  as  it  has  been  ao  Well  supported  by  mat 
other   witnesses,  attesting  such  a  number 
circnmstaticet  to  confirm  it. 

Another  witness,  Mr.  Meicalf,  was  called  t#l 
contradict  Mr.  Whiflin,  as  to  the  time  of  hit  | 
receiving  the  mgn -iron.  Bnt  Mptcalf'i  evi*  1 
ilence  is  so  very  uncertain  and  indeierminaM^ 
that  it  proves  nothing.  He  swears  to  a  trani^  1 
action  upon  the  8th  of  Jauuary  ;  but  when  Ii4] 
is  called  upon  to  a^igo  his  reason  for  beings  j 
particular  tu  the  day  of  the  montli,  all  he  ca%l 
aay  is,  that  he  keepa  hia  reckouini(  by  h'^ 
clock,  atid  is  itriiorant  whether  hia  accoiroi 
ncotrdtnt?  m  iKr  Old  Htile,  or  New. 

Bnt  Mr.   H|,iffin*«  evidence  is  sufficieuttf 
sup|K>rted  by  fievt-ral  circumstances,  the  ' 
Is  fixed  beyond  all  doubt,  and  there  now  re«»] 
mainn  on  stain  i>|>on  hiij  character. 

Gentlemen,  I  think  1  hive tnkennotTe€ofal| 
the  materml  circumstances  on  both  nidei^  two 
only  etetpted,  wfaieb  1  did  not  looaer  rtcolitot 


'C31] 


27  GEORGE  11. 


Dial  ofEUxahdh  Canmngf 


[63S 


One  18,' the  defpodant's  c1aimiD(r  the  bed- 
gown, before  ftworn  by  her  to  ha?e  been  found 
at  Wells's,  in  the  ((rate  in  the  chimney.  This 
then  lay,  togfether  with  the  pitcher,  on  a  table 
at  the  Mansion- house ;  and  she  would  have 
taken  them  both  away  ;  but  that  was  objected 
to,  because  they  did  not  belong  to  her,  and  that 
they  might  be'  deposited  in  some  public  place, 
for  the  sake  of  further  disfoveries :  upon  this 
(relinqnishinijr  the  pitcher)  hhe  insisted  on  tak- 
ing away  the  bed-|ro%«n,  for  **  That  was  her 
mother's." — It  has  been  proved,  that  there  was 
no  grate  in  the  chimney  at  Wells's. 

Aud  I  should  have  added  to  the  obaervations 
upon  the  evidence  of  the  mother,  who  proved 
the  defendant's  hand-writing  to  some  papers 
now  before  you,  that  the  innocence  of  the  de- 
fendant having  been  most  irogently  inferred 
from  her  supposed  simplicity,  and  she  having 
been  represented  as  a  poor,  silly,  illiterate  crea- 
ture, incapable  of  inventing  such  a  story,  to 
iurnish  her  advocates  with  so  excellent  an  ar 
ffument,  she  set  her  mark  to  her  information 
before  Mr.  Fielding,  as  if  unable  to  write  her 
Dame ;  which  information  is  also  before  you. 
1  dare  say,  it  was  not  then  imagined  that  this 
morks- woman  had  received  so  good  an  educa- 
tion. Who  nould  have  thought,  upon  reading 
the  pamphlet,  which  that  good  magistrate  was 
pleased  to  oblige  the  world  with,  containing 
the  information  at  large,  with  such  ingenious 
remarks  upon  her  stupidity ; — who  would  have 
dreamt,  that  this  "  cliild  in  years,  more  so  in 
understanding,"  was  able  to  write  a  fair,  legible 
Land  ? 

And  this  may  serve  as  a  specimen  to  shew 
wliat  mean  artihces  have  been  made  use  of  to 
deceive  mankind. 

Ocntlenien,  you  have  now  before  you  the 
whole  merits  «f  ihib  rause  ;  the  subject  of  uni- 
versal contioversy,  which  it  is  hoped  your  ver- 
dict will  pill  an  end  to. 

Permit  me,  therefore,  to  remind  you  briefly 
of  what  you  must  necesKarily  believe,  in  order 
to  acquit  ihe  defendant  of  the  charge  against 
lier. 

Jn  the  6rst  place,  you  must  believe  a  most 
astonishing  story  of  several  incidents,  every 
one  of  which  is  to  tiie  highest  degree  impro- 
baMe.  Yuu  must  also  l^elieve,  that  above  ftirty 
witnesses  to  the  alibi  of  the  gy.psey  are  all 
gui'iy  of  perjury,  although  there  is  a  greater 
coinhiiiation  of  circumstances  to  add  credit  to 
their  ciiileuco,  than  was  ever  before  n-quired 
to  NHtisly  a  human  inquiry.  To  this  end,  you 
mils*  al>o  iielieve,  that  all  iiese  wituevses  con- 
S[»iit.(l  .0  ihis  perjury,  aiid  pre-concerted  every 
ri!-iMiA(:ince  ^*  itii  ho  much  ait  and  contrivance, 
as  to  defeat  the  possibility  of  detection  upon  a 
separate  exikuiir.ation  ;  and  all  this  you  are  to 
suppose,  altlioii;r||  the  evidence  to  contradict 
them  IS  iiiHiiitely  less  clear,  less  certain,  and 
less  conclusive. 

But  if,  notwithstanding,  you  can  prevail 
upon  yourselves  to  summse  Mary  ISuuires  to 
have  been  at  Enfield,  when  we  proved  her  else- 
where, or  (which  it  as  hard  to  •uppotc)  that 


the  defendant  mistook  htr  for  anothoTy  yoa 
have  yet  more  difficulties  to  reconcile.  For 
you  must  further  supoose,  either  that  Mr, 
Alderman  Chitty,  Mr.  Nash,  Hague,  Aldridge, 
together  with  manv  of  the  derendiaof a  owa 
witnesses  to  several  oircumitaocea,  are  abao- 
lutely  perjured  ;  or  else  you  must  yield  your 
assent  to  a  new  train  of  events,  at  maoy  and  as 
wonderful  as  those  in  the  defendant's  story. 
.  You  must,  moreover,  believe  all  the  ten  wit* 
nesses,  con6rming  Natns's  evidence,  likewise 
guilty  of  perjury  ;  although  no  attemfit  has 
been  made  to  disprore  their  testimoDy,  eaeept 
only  (what  1  hope  is  sufficiently  answered)  • 
with  respect  to  Natus  himself,  and  also  as  Is 
the  time  of  Whiffin's  buving  the  sign-iroD. 

And  upon  what  founcfation  are  you  to  sup- 
pose all  this .?— Upou  the  credit  of  Eliashsli 
Canning,  proved  to  be  self- contradicted  in  ss 
less  than  three  instances,  relative  to  a  siagk 
fact ;  or,  upon  the  evidence  of  ber  witoesMS, 
who  have  given  no  answer  to  the  chaiige.  Ftr 
it  is  observable,  that  not  one  of  the  witnesses  fsr 
the  crown,  except  to  the  alibi  of  S(|uir8S,  is 
contradicted  by  those  for  the  defendant ;  and 
yet,  if  their  evidence  be  true,  she  nnit  be 
guilty. 

These,  gentlemen,  are  the  remarks  ocenmng 
to  me  upon  the  various  circumstanoea  in  tbis 
very  long  trial.  Many  of  them  may,  perhaps, 
have  been  unnecessary  or  improper,  whilst 
some,  which  I  may  have  omitted,  should  bsve 
been  enforced  ;  but  whatever  errors  are  inpo* 
table  to  me  in  the  course  of  this  prosecatiea,  I 
solemnly  lu-otest,  that  the  mis-statiuff  or  nsii- 
applying  any  facts  has  been  entirely  foreign  to 
my  intention  throughout  the  cauM ;  in  the 
merits  of  which  I  have  at  no  time  been  en- 
gaged, otherwise  than,  as  I  conceived,  the  doty 
I  of  my  profession  directed  me :  and  this  duty 
1  have  discharged  to  the  best  of  my  abilities. 

Mr.  Narcs.  T  only  beg  leave  to  nirntioo  OM 
thing.     There  has  U*en  one  reason  utteaipted 
to  be  given,  why  a  very  material  witne*«i»iMt 
produced,  the  want  of  which  witnetis  in  at-      | 
tended  with    the  utmost  ineonveuiency  to  the     | 
prisoner  at  the  bar;    that  is,  V^iriue  Hall:  by     i 
•  tier  not  beint^  called  we  can  ^ive  no  evuleece     ] 
;  relative  to   her;    that  is  as  to  what  she  be* 
'  said,  and    the    means    used    in    her  recanta- 
tion.     Mr.  Davy  has    given   this  as  a  rea- 
son, l>ecause  she  is  not  in  law  a  witness;   but 
1  b<*g  Irave  to  say,  that  accordini;  to  all  the 
cases,  and  common  praetice  every  day,  she  is* 
witness ;    it  only  goes  to  her  credit,  and  that 
goes  to  the  jury.     You  know  the  case  of  Cart- 
wright  at  llertford  ;  he  confessed  he  had  per* 
jiii-ed  himselt  in  four  or  five  diflVreut  court^' 
'■  1  should  be  i^lad  if  the  Court  would  deliver  the*' 
opinions  on  it. 

Mr.  Baron  Legge.  I  Mieve  witnesses  lis^^ 
rery  often  been  called,  that  have  declared  tbej^ 
have  lieen  perjured  in  other  instances ;  bot^  ^ 
will  never  admit  or  suffer  a  person,  that  wil^ 
say  they  have  been  perjured  in  another  affiu^* 
and  I  knew  it  before  they  were  sent  for.  Whe^ 


fi3SJ 


Jhf  Wajiil  and  Corrupt  Perfurif* 


A,  a  nsi. 


[634 


ibe  (iwMrs  inie  I  rannnt  tell ;  bat  that  she  Itas 
•irof**  !':!*«#*  flDt^,  I  niiist  know* 

V  In  tlie  cn%e  of  stibortiation  of 

|H:jj  .ure  ailniilted  every  ilMyt 

Jllr.  llaraii  Leggt.  They  are  odiiittted ;  but 
M  mum  90  much  to  lhi;ir  credit. 

mr,  R4ti^iier,  I  i-emetntier,  that  in  the  trial 
9f  Tttui  Dates,  loni  chitf  jiulice  Jiftferys 
1  hmft  Itrm  glad  to  have  li ringed  ttim,  but 
Dot  iulfer  a  perjured  person  to  he  rxa* 
minvil  a^iuAt  him.  VVhHi  ntu^t  stieh  set  af 
WEl Hesse*  swear  ?  Why,  tliey  iniist  set  out  iti 
fSfifig  Ihey  liarc  beeti  perjured  lietbre.  Tlico 
wbsl  in  the  coii!<equence,  but  that  they  must 
iltstruy  their  own  credit. 

Mr.  Baron  Le^ge.  When  a  witness  fitands 
up,  and  trlh  us  ahe  has  once  swore  false,  what 
cr»'  tjifeu  ttj  her  tcRtimotiy  ?* 

1    have  kno\^n  audi   witnesses 
J    uiure  than  oiiee ;    the  jury  Uuva  a 
call  and  cxumme  her,  but  I  hare  no 
i(|^i  Uf  c«ll  ber^  neither  has  the  defendant. 

Mr.  11        '       Gentlemen  of  the  jury,  Eli- 
sabeth i  i.tj  prisoner  at  the  bar,  stands 
h,v   ,ir,|iuy,  in  sweariotf  that  Mary 
(^Sec  iiie  iudiclmcntf  the  perjury  as- 
mtu'-^i    »'"i  the  arenneol  nicntiont'd  before  in 
lilt                    But  as  tills  is  a  tilal  of  unusual 
le:.                  r  great  expectation,  J  shall  !»t3te 
Ui*                  m  ttie  clearest  manner  1  have  l)een 
alit                   Ut;  and  if,  in  the  stating  the  se- 
Vrral  iu%^im  which  hate  l^eeu  laid  before  you, 
4unfTfi^  the   eoiir-ie  t}(  this  lonjT  proceeding',  J 
sh"  N  dificloMe  my  own  opinion, 
1  '                        ^  il  may  have  uo  weight,  or 
m                    >i  itnpresHiuu   on  you,  in  deler^ 
fenhct,  otherwise  than   as  the 
>  r  1 1<  f e  nc4.'  j  u sti  fi es  i  t.     As  t  li  i s  in* 
liuindcd  upon  the  evidence  j^iven 
1  Ciinniti^;  Mguin»t  IVlary  Sf|uires, 
rnonyshe  uas capitally  coovictefl, 
Vivy,  the  sliort  hand  wnter,is  call- 
that  upari  the  QVd  day  of  Fehro- 
quires  wuni  tried  ni  this  court ;  and 
trial,   X*Ili7.abeth    fJanniug   swore, 
**  That  tin  the  l<it  day  of  Jiinuary,  in  the  year 
1753,  she  bad  been  al  Nsiltpetre-h^nk  to  nee  her 
UDck  Mid   aunt,    and  stayed  there  till  about 
ube  at  uight ; — that  her  unilc  and  auut  came 
V^  brr  til  Aldgate,  when  they  parietl ; — that 
tV  vsM  then  aioii**,  and  ho  c^mif  dnwri  Huiinds- 
il4loli,   and    u^er  IVIoortiehls  by   B»-dlani  wall, 
^lin%  two  lunty  men,  both  in  gre^it  coats,  Uid 
^M  ot  her,  and  luok   half  a  guinea  in  u  little 
^t  out  tit  her  pocket,  and  ttiree  Mhillinifii  that 

linnik    }w  hinJ     \ 

i 


iiictttirnt  i» 

by  »''":':►'.••', 

n 

•n 

that 


that  they    afterwards  ti*'d    Uer  , 
l'<<r^  and  dragged  her  to  Welts^s  ' 
'  \Va»h,   where  they   arrived 
L  iu  the  morning;   that  she 
saul  |jryp<^Y  woman  H^juires  sit- 
,  who  tiKik  her  by  the  hand,  and 
^ilai  W»  il  abe  ebose  to  go  their  way,  say  tog, 

•  B«i  w«  the  Note  to  that  decision  of  Jef- 
mmuk  Oftttt'l  Ciuc,  f  ol  lU,  IK  1186,  u  cited 


ibat  if  she  did,  she  shotiUI  hare  fine  clothes  | 
but  she  refusing,  Mary  bcpiires  then  took  m 
knife  out  of  a  dresicr^drawL-r,  and  cut  the 
lace  of  her  stays,  and  took  them  Irom  her ; 
— that  Mary  S^juires  gave  her  a  slap  on  the 
face,  and  pushed  her  up  stairs  out  of  the  kitchen 
into  a  room  culled  the  hay  loft,  and  shut  the 
door  and  threatened  her,  if  she  stirred  or  moved| 
to  cut  her  throat; — that  when  day -light  ap« 
pcaredf  she  could  see  in  the  room  a  black 
pitcher,  not  quite  full  of  water,  alnjut  twenty • 
tour  pieces  of  bread,  a  fire-place,  aitii  a  grate  ; 
tbat  ^he  continued  there  a  month  by  the  wei*ks, 
nil  but  a  few  huurs  ; — ^that  slie  broke  down  a 
board  that  was  nailed  up  at  the  inside  of  the 
window,  and  got  out  on  Monday  the  29th  of 
January,  about  four  o'clock  in  the  afternoon  ; 
that  «he  task  out  of  the  giaic  in  the  chimney 
an  old  sort  of  a  bed-gown  and  handkerchief, 
which  she  tictl  over  her  head  instead  of  a  cap, 
and  got  to  her  mother^s  house  in  A  (derm  an  bury  p 
about  a  quarter  after  ten  ft*clock  at  night.** 

In  order,  therefore*  to  prove  that  the  etri- 
dence  she  then  gave  was  falj^e,  a  great  numb«r  • 
of  wiineAses  have  been  called  to  prove  Mary 
Squires  at  a  diftVrent  place,  at  the  lime  on 
which  Elizabeth  Cunnnig  has  sworn  to  her 
robbing  her  at  WcUn's  at  Enfield- Wash. 

Tlie  lir^t  of  these  witnesses  is  Esther  Hop* 
kins,  wlio  says,  that  she  keeps  a  public  house 
at  Soul h  Carrot,  which  is  some  miles  beyond 
Abbotsbury  in  IJorsetfihire ;  is  positive  she  saw 
Mary  S^iuiics,  her  son  aud  daughter,  at  her 
house,  on  the  29th  of  December  1752;  tbal 
tliey  lodged  at  her  house  that  night  \  the  reason 
of  her  remembering  il  is,  llMt  two  gcuttemeci 
tbst  day  had  been  there,  who  left  their  reckon- 
ing unpaid ;  lliat  Mary  Squires,  her  son  and 
daughter,  went  away  neirt  morning;  is  parti* 
cularly  positive  to  Mary  8«iuires,  having  never 
seen  such  another  remarkable  woman  ;  thai 
she  ii  more  r^Hitive  to  the  sou  than  to  the 
daughtcrt  lor  oe  had  a  bug  which  he  carried 
under  his  arm.     They  all  travelleil  on  foot. 

The  iK'Xt  witness  was  Alice  Farnham,  whe 
lives  at  Winyard's  Gap,  ten  miles  beyond  v\b* 
botsbury.  She  says,  that  she  saw  Mary 
Hquires  at  Winyard^sGap,  about  eight  or  nine 
o'clock,  on  the  *S«turil)iy  morning  neit  after 
new  Christmits,  with  her  son  and  daughter; 
the  reniion  of  her  being  so  positive  to  Mary 
Squires  it,  that  having  seen  the  picture  of  mo* 
tberShipton,  tihe  tlmti^ht  she  reiiembted  thai 
picture.  They  ail  sluyed  about  an  hour  at  her 
house,  and  had  a  qnnrt  of  beer,  and  sum*' bread 
and  chee-^e,  and  when  they  parted  with  her 
said,  that  they  woittil  come  and  see  her  again 
at  old  Christmas;  iliat  ih«y  all  went  towards 
Abboisbury,  which  is  ten  or  eleven  miles  frooi 
Winyard's  iinp  ;  that  ^h^;  had  seen  them  come 
iiuo  8iMith- Parrot  the  day  More,  and  seftn^ 
tbcy  were  gy pules,  brr  mother  asked,  if  she 
was  not  frightened.  This  she  remeinliers  was 
on  A  hiaturday,  because  she  had  a  mind  ta 
havegune  that  day  to  Crot>k home  market  te 
buy  some  things  against  old  Christmas,  but  her 
oiother  would  uol  let  bcr  go.    Sbe  saw  e  lie» 


633] 


S7  GEORGE  II. 


Tfitd  ofElizaheth  Cranny, 


[« 


under  ihetofi^i  ftrai,  mnti  the  dftu^Uter  i5roi»ed 
very  neai  id  h  white  bolliiDd  go\wn.  Hni 
B«ver  leeti  thetn  since  (  hut  is  very  poutire  to 
them.  Thai  ihey  hMil  a  mug  oi  beer,  and  paid 
for  it. 

The  iiejrt  witntSB,  who  undertikes  tt>  pro^t 
the  whote  iouroey  to  Entield-Wftshi  it  Geor^ 
i^quirM,  whu  is  soti  to  Alary  Htfiiires,  who  8ay«, 
be  WIS  hi  South- Parrot  on  Friday  nejtt  after 
liew  Christmas* day,  and  they  put  up  at  the 
Ked  Lion  tliere^  and  Mayed  one  nij^lvt  only : 
ibst  (iiiey  set  out  Ironft  Ne^'in«^ton  near  8ouih- 
"wark  ahout  seven  or  ei^hl  weeks  befure 
Michadmas  preceding)  from  Houth-Pairot 
lliey  all  went  to  U'invurd's  Gap,  and  then  to 
Litton :  that  they  lay  there  npoQ  Saturday,  and 
he  [e(t  his  mother  and  sister  there^  and  went  to 
Abbolsltury  on  Huoday,  to  aet  some  frtendB  h« 
had  tttere,  and  particularly  Ui  see  William 
Clarke :  that  he  and  Clai  ke  went  to  Liiifiti  for 
Ids  mother  and  sister  the  Monday  tblLowin^^ 
and  at  Litton  the  sister,  Clarke,  and  he,  dined 
together  ;  hi^  mother  being  gone  towards  Ah- 
botsbury  to  see  tor  Clarke  and  bim  ;  but  upon 
tier  return  dined  with  thetti.  AJ\er  dinner 
they  all  set  out  for  Abbotsbury,  and  arrivetl 
there  U|>on  the  fVIonday  nii^ht,  being  the  1st  of 
Jannary,  and  lay  there,  Htthe  sign  of  the  Ship.^ 
at  One  Oibbons^s ;  they  danced  till  twelve 
o'etnck  at  night,  and  se?eral  peo|de  were  with 
them.  His  partner  was  Oibl>oDi*s  sister,  and 
having  been  at  Ahbotsbury  lieforc,  he  knew  ae- 
teral "ihero.  Clurke  danced  with  hit  sister; 
and  that  his  moiherf  his  sister,  and  bimM^lf, 
stayed  at  Aldjoiabury  from  the  Ist  to  the  9th  of 
January.  That  the  Ist  of  January  bping  a 
wet  dtyi  one  Andrew  Wake,  who  was  then  an 
ttieifonian  at  Abbotsbury,  borrowed  his  greats 
ooat  of  him,  in  order  to  make  bis  survey. 
That  on  Tuesday  the  9ih  of  January,  his  mo- 
ther and  sister  and  himself  I ef\  Abbutshury: 
Clarke  went  with  them  to  a  place  ttalled  For- 
tcrsham,  alioul  a  mile  and  a  half  from  Abbots- 
bury.  The  neirt  day  they  went  to  Rid^^way, 
about  Ave  or  six  miles  from  Abbotabury. 
Clarke  and  he  lay  together,  and  lay  there  at 
the  sign  of  the  Nhip,  at  nne  Bewlpy^i^  where 
there  happetied  to  be  a  horse  whicli  had  just 
died;  and  his  money  being  short*  he  left  a 
|itece  of  nankeen  fur  his  i  eckonifUT,  ^^*  mother 
«mi  flister  being  theTi  with  iiiin.  From  tbetice, 
on  Thursday  the  lllh,  they  all  went  to  Dor- 
chester, and  there  they  bsd  an  account  of  hii 
aisler  Mary's  illness,  and  then  they  determineil 
to  hasten  to  her  i  anil  the  waters  being  very 
much  out,  he  carried  his  mother  upon  his  hack, 
and  a  miller  look  his  sister  on  a  horse  behind 
Utm  through  the  water.  They  travelled  on 
foot  almi>6t  the  whole  night,  and  arrired  at  a 
Yd  {age  called  Chettle,  which  is  four  miles  be- 
yond Blandlbrd,  and  on  the  Haturday  following 
tltey  all  lay  at  Af  artin  in  a  barn  belonging  to 
farmer  Thane.  On  ihe  Sunday  a^er  they  all 
went  to  Coombe,  aiHl  lay  there  at  one  Grevitle's, 
the  sign  of  the  Lamb,  who  w  since  dead.  On 
the  Monday  Ibllowiug  he  does  not  recollect 
where  th«y  liy,  itelther  cau  he  recollect  where 


they  all  lay  Ull  hia  arrival  at 
when  they  got  there,  they  puttipatth^fipfMA 
Eagle^  where  the  womao  of  the  house,  at  bit 
sister's  re4juest,  wrote  a  letter  to  Cbfke  at  Ah* 
bothhury.  They  lay  that  night  at  a  place 
called  Old  Baysing  (their  usual  way  of  tra^ 
velliug  being  about  len  miles  a  day).  From 
thence  they  went  to  Bagshot^  and  'lay  at  tbs 
aign  of  the  Greyhound  there  ;  and  fr«Mn  thatai 
to  Brentford,  where  ihey  all  anrivad  miikf 
there  upon  the  Saturday  ;  and  oo  the  ^imdtf 
he  went  lo  London  to  see  his  sister  Mary,  aai 
on  the  Miinday  he  brought  her  to  Br^nttbvd  H 
one  Mm.  Edwards's,  where  they  all  stayed  til 
Tuesday »  and  on  Tuesday  they  all  wenllotbl 
sign  of  the  ^ven  SSisters  at  a  gre^ti  near  TvC* 
^puham,  aud  on  Wedtiesday  they  all  arrivtd  H 
Mrs.  WV'lls'a  at  EnAeld,  whom  he  never  sav 
before,  hut  was  reonmmended  there^  Tlill  be< 
fore  they  went  to  Mrs*  Wells's,  they  oalled  at 
another  house,  where  thay  were  reiXKiiaifaiii 
to  a  house  at  Cheshunt ;  hut  that  iim'%u^  loo  Ibr, 
they  went  to  Welb's,  where  he  leA  buoiotlw 
auu  sisters.  That  iu  two  or  three  days  aAtrhi 
want  to  London  lo  receive  some  mdoeyi  tii 
returned  ueat  day,  aud  found  his  mother  aai 
flistersi  at  WelU  V.  His  mother  and  sisters  laf 
in  the  room  over  the  parlour,  and  ht  lay  in  I 
little  mom  fronting  the  stairs,  and  WeIJa,  bir 
daughter,  and  Virtue  Hal],  lay  in  a  nMHD  ai 
Ihe  letlhand,  and  one  Fortune  Natuaand  hm 
wile  lay  in  a  room  some  few  steps  out  of  lbs 
kitchen.  That,  during  the  time  they  were  at 
Wdls*s,  they  bought  their  chandlery  warsflf 
one  Larney,  and  it  lieing  herring  lim^,  thif 
lived  very  much  upon  herrings,  whiob  they 
bought  of  an  ohl  man  who  carried  them  ahottt 
to  sell.  That,  during  the  whole  time  he  wm 
at  Welh's,  he  never  saw  the  prisoner  Caaoiiif, 
neither  bad  he  ever  seen  ber  Wfore  his  naolh« 
was  arrested,  which  was  on  Thunday  the  t* 
of  February.  Upon  hia  croa»-exiiniin»ii«o  b« 
says,  that  be  cannot  recotleci  w  lie  re  he  W4i 
Ihe  Christmae  before  he  aet  out  to  wants  Dor* 
aeU^hire,  neither  can  he  recollect  the  acTersA 
particular  placea  through  which  he  imvtUti^ 
except  Lenes  and  Salisbury,  and  some  alhll 
principal  towns  in  the  west  of  Baglaail.  Bi 
gives  an  aocount  of  the  whole  journey  fboi 
8ouih- Parrot  to  Entleld,  exoept  tour  ibyi^ 
which  is  fntm  their  arrival  at  Coombe  liU  they 
got  to  Bdsingntoke.  « 

Then,  to  confirm  the  account  which  Oetiyi 
Sqiiirea  has  given,  they  call  a  great  many  wit* 
oesses.  The  first  is  John  Fry«  who  is  a  liler 
and  plaisterer,  and  lives  at  Litton  in  Derail- 
■hire.  He  says,  that  he  saw  a  gv  psey  Ihe  SOth 
of  December  at  one  James  Hawtcins's,  a  pnblie 
house ;  that  it  was  on  a  Saturday.  He  ii> 
members  it,  because  it  was  New  Christmas 
time,  and  the  Monday  following  %vai  Neir» 
year's  day.  Js  very  positive  both  la  Mary 
Squires,  her  sua,  and  her  daughter.  The  part 
of  the  house  he  saw  them  in  was  the  kitdien, 
and  has  known  Mary  84|uire«  for  30  years. 

Francis  Glad  man  is  called  nexL  He  ii  tore 
that  he  aaw   Mary  Squirca^   her   aoi  iii 


•37} 


JBr  JVSJut  and  Corrupt  Perjury, 


A.  D.  1754, 


tfi38 


^uiprbter,  it  Lilton,  in  tie  oiorning  of  the  tsl 
TJanunry,  for  he  sbavpd  George  Squires  (be 
lay  befure.  He  remembers  itie  day  par- 
ariy,  because  be  was  ooe  uf  tbe  rinj^trs 
ruo^-iQ  ihe  New-year.  That  Mary 
[S^irea  vtas  asked  wbelber  sbe  coulil  (e)l  fur- 
tuoes,  and  slie  mu[^  Nn«  Then  he  asked  her, 
.irhether  ihe  could  gpeak  8paai!ih  or  French  f 
who  sDRWered,  ihe  coutd  not*    The  next  wit- 

Jamea  4n^el»  who  sayg,  thnl  he  aaw  Mary 
[0(|uirf«  and  her  daughter  at  Kawkuia's  at  Lit- 
^lon  on  (be  Sift  day  of  December:  but  he  did 
^BOt  see  Geurge  8f|uire»,  because  he  was  |^iie 
c|»  AMK»tabiiry.  He  reme«il)er8  it»  becauie  tJie 
tMiuiday  falloirin^  he  viaa  called  to  ricig-in  Ihe 
liK^^'-yecir.  He  did  oot  aee  Blary  Si|iiires  in 
I  Ibe  eveQifif^f  becaui$e  she  was  gon<^  to  Abbots- 
I  bury,  which  was  three  mileu  I'rcim  UtlOD.  The 
iiltext  witness  is 

I  James  Hawkiui,  who  remembers  that  Mary 
fSiiuirec,  ber  aoo  ami  (fau|^hter,  came  to  bis 
Ihouae  at  Litton  on  Saturday  the  30th  of  De- 
^ member,  and  tUty  stayed  there  all  Sunday,  ex- 

PX  George,  wbo  went  to  Abbot&hury  on  the 
day  ;  aud  that  George  Squires  and  William 
rk«  returned  from  Abbots  bury  shout  ten  or 
«Q  o'clock  on  Monday  morning;  and  after 
f  bad  dinetl,  they  all  sec  out  for  Aljb4>t$bary 
^•ofHit  two  o'clock  the  sanve  day. 

IVilliam  Clarke  is  called  next,  who  livec  at 
'  JIbbotsbury,  and  in  very  well  acquainted  with 
I  Mnry  8qujres,  her  son  and  dautrhter.  He  says» 
I  tbal  George  Squires  came  to  him  at  Alibot!^- 
bttry  on  Sunday  the  Slst  of  December;  he 
itajed  with  hnu  ihvrc  till  Monday  inoming. 
Tbat  he  asked  Ciporj^e  after  his  sister  Lucy, 
IptKi  told  him,  that  bii>  mother  and  she  were  at 
LiltoD.  That  I  hey  both  together  went  to  Litton 
IkevI  onortung,  where  they  arrit ed  aljout  three 
oVlock.  Mary  Squires  was  not  there  upon 
Ibeir  first  arrival,  because  she  went  towards 
Abhotsbury  to  meet  her  eon  George.  That 
upon  her  coming  back  to  Litton,  th«y  alt 
duied  together  upon  a  boiled  fowl,  and  after 
dinner  he  went  with  them  to  Abbotshnry,  and 
itberog  the  1st  of  Jsnuary,  they  had  a  dance 
m  Gibbons^s,  tbe  sign  of  the  Ship  there*  That 
Lucy  Squires  was  his  partner,  and  one  Arnold 
played  on  tbe  music.  Is  very  sure,  that 
ibaib  Mary  Squires^  her  son  and  daugbter, 
at  Abhotsbury  upon  that  day,  and  is  as 
that  they  all  continued  there  till  Tuesday 
tb«  9tb  of  January^  for  he  saw  ihero  there 
mwTf  day ;  and  upon  that  Tuesday  he  set  out 
witb  ibem  on  their  journey,  and  went  with 
tbein  to  Portersham,  and  then  to  Ridgway, 
wbert  bt  leh  them  at  one  Bew ley's  bouse 
tbcre.  That  they  had  beef-steaks* for  their 
tufip^r,  and  when  he  parted  with  them,  George 
borrowed  lix  shillings  of  him*  That  be^  tbe 
mlnets,  desired  Lucy  to  write  to  hfm,  and  told 
ber  how  to  direct  to  him.  That  he  has  known 
Hsry  SquireSf  her  son    and    daughlefi  four 

Tbe  next  is  John  Gibbons,  who  keeps  thtt 
sig^n  q(  ihe  Old  bhip  at  iUbotsbury .     He  gay  p, 


be  knowi  Mary  Squires,  Iter  son  and  dauglUcr , 
Has  known  Mary  Squires  for  three  yenrs.  la 
Tcrv  pniitive  they  were  at!  at  htk  bnu«e  ibe  Itt 
of  January,  1753^  in  the  evening,  danciinf. 
That  George  danced  with  his  sister,  Lucy  witb 
Clarke.  That  they  all  stayed  at  bis  house  from 
lluit  time  till  Tuesdsy  th*  9th  of  January  ;  an4 
remembers,  that  while  they  were  there,  tb# 
excisrroan  borrower!  George'a  great  cikat  to  go 
his  rounds.  That  they  and  Clarke  ivei»l  atvmy 
together  on  Tuesday  the  9th  of  January,  Hm 
tvas  a  witness  at  the  trial  of  Mary  Squires,  but 
doth  not  remember  ha  was  asked  about  lb* 
dancing  on  the  1st  of  Januarv. 

George  Ckments  is  callM  netxt^  who  con- 
firms  what  the  other  witn«atoB  have  8worD« 
about  the  daneing  at  Gibbons's,  in  every  eir* 
cnmatance.  That  he  snw  Mitry  Squires,  her 
son  and  daughter,  at  Albutsbury,  the  tfd  and 
Sd  of  January.  The  Sunday  following  he  dined 
with  them  at  GibhonsV  That  Clarke  and  they 
set  out  together  the  Tuesday  following*  That 
he  knows  them  tlL  very  welf,  reoi^tnbeni  Mary 
Squires  maDy  years.     The  next  ii 

Melehiscdecb  Arnold,  who  ts  a  blacksmfth, 
asd  liv«a  at  A  bbotsb  u  ry •  H  e  sa w  M  a  ry  Sq  ui  res, 
her  son  and  daughter,  at  Abhotsbury  the  ist  of 
January,  at  tbe  Old  Slup  there,  Rememb4>r» 
the  dauciug  that  night,  and  played  on  the  fid- 
die.  That  Ciarke  was  Lucy's  partner,  and 
George  was  Mary  Gibbnns^s  partner.  Thai  h« 
saw  them  all  several  timet  during  tlie  week 
they  were  there,  aod  mmembeis  all  tbe  several 
circumstances  mentioned  by  the  other  Vfit* 
netsfs, 

John  Ford  is  called  next,  who  is  a  carf^enter, 
and  lives  at  Ahboisbury  ;  ia  uncle  to  Gibbons, 
who  keeps  the  Old  Ship,  which  is  the  Excise- 
ofiicc ;  saw  Mary  Squires,  her  son  and  daugh- 
ter, there  every  day  during  their  stay  there, 
which  was  from  the  1st  of  January  to  the  9th  ; 
knows  Mary  Squirea  as  well  as  his  own  noo* 
ther;  that  lie  sells  bread,  and  they  bought 
their  bread  of  him  dunng  tbe  whole  time  they 
stayed*     The  next  is 

Daniel  Wallace^  who  i«  a  meroer  at  Abb<H»> 
bury.  He  is  very  positive  that  he  saw  Mary 
Squires,  ber  son  and  daughter,  at  Abbotahury 
on  Sunday  the  7th  of  January^  and  that  George 
Squires  bought  sugar  of  him ;  that  seeing  Mary 
Squires  on  the  day  of  his  having  Umght  a  new 
jack,  she  asked  hitn  to  dine  with  ber  that  day* 
Then  they  call 

Hugh  Bond,  who  is  a  schoolmaster  at  Ab- 
hotsbury, wlio  says,  that  on  tbe  Slst  of  De- 
cevnber,  being  hofiday-tiroe,  he  went  to  tee  hie 
wife,  who  was  ill  in  Devonshire,  and  be  re- 
turned to  Abhotsbury  on  Monday  ihe  8th  of 
January,  That  he  lodged  at  the  Old  Ship,  It 
f«ry  piieltive  that  bt  saw  Mary  Squires,  her 
8otY  and  daughter,  there  that  night,  and  saw 
th«m  ihrre  next  morning,  the  9th  of  January* 
That  he  had  souae  cunver^tion  with  Georg* 
Squires,  slong:  with  one  Wake  an  exciseman | 
who  officiated  for  one  Ward  aa  exctaeroan, 
who  waii  then  sick  ;  and  Wake  lay  at  the  Ship 
i«  the  Mtoe  btd  where  Wurd  uaed  to  lie,  anil 


639] 


27  GEORGE  II. 


Trial  of  Elizabeth  Cannings 


[640 


that  George  Sauircs  lay  io  another  bed  in  the 
aame  room.    Then 

John  Bailey  is  called,  who  is  a  carpenter  at 
Abbotsbury.  He  says,  he  has  koown  Mary 
Squires  ten  or  fifteen  years,  and  has  known 
Geora:e  and  Lucy  three  years.'  Is  ?ery  posi- 
tive that  be  saw  tliein  all  at  the  Old  Ship  there 
on  Monday  the  1st  of  January  ;  that  they  con- 
tinued there  from  that  time  till  Tuesday  the 
9th  ;  and  that  he  shaved  Georf^e  twice  within 
that  time,  and  remembers  it  particularly  by  his 
brother's  setting  out  on  the  1st  of  January  for 
Bristol,  in  order  to  go  to  sea.    The  next  is 

Thomas  Anson,  who  lives  at  Abbotsbury. 
He  has  known  Mary  Squires,  her  son  and 
daughter,  about  four  years,  and  is  very  sure  he 
saw  them  at  the  Old  Ship  there  on  Friday  the 
5th  of  January,  and  is  sure  they  are  the  same 
persons  he  had  seen  four  years  before;  that 
Clarke  was  with  them,  and  it  was  reported 
that  Clarke  and  Lucy  were  sweethearts.  Then 
they  call 

John  Hawkins,  who  is  a  weaver  at  Abbots- 
bury,  who  remembers  seeing  Mary  Squires, 
her  sun  and  daughter,  at  Abbotsbury  the  1st  of 
January  at  Gibbons's  ;  is  certain  that  they  all 
continued  there  from  the  1st  to  the  9th  oi  Ja- 
nuary, having  seen  them  every  day ;  and  he 
particularly  remembers  the  dancing,  and  Ar- 
nold's playing  on  the  fiddle.    Then 

Andrew  Wake  the  exciseman  is  called  (who 
is  mentioned  by  some  of  the  former  witnesses.) 
He  says,  that  he  was  ordered  to  officiate  as  ex- 
ciseman at  Abbotsbury  during  the  illness  of  one 
Ward,  who  was  taken  sick  there.  That  he 
went  to  Abbotsbury  on  Sunday  the  31st  of 
December,  to  Gibbons's,  the  sign  of  the  Ship, 
which  is  the  excise  office ;  was  in  company 
with  George  and  Lucy  Squires,  and  Clarke,  at 
that  house,  and  on  that  day  ;  and  that  Geurge 
and  he  lay  in  the  same  room  ;  and  that  he  saw 
Mary  Squires,  was  in  company  with  her  and 
Lucy,  and  in  the  same  house,  on  the  Wednes- 
day following.  He  also  remenibers  the  danc- 
ing at  Gibbons's  on  the  1st  of  January,  and  that 
George  and  Lucy  and  Clarke  danced  there  on 
that  evening,  and  particularly  remembers  that 
Arnold  played  on  the  fiddle ;  and  he  being  a 
dealer  in  cyder,  he  surveyed  him ;  and  this 
witness  being  at  that  time  out  of  order,  he  bor- 
rowed a  great  coat  of  George ;  and  that  Mary 
Squires  ordered  something  for  him  to  take; 
and  says,  that  lie  left  the  excise-books  with 
Ward,  when  he  went  away  from  Abbotsbury, 
which  was  on  the  14th  of  January.  He  then 
refers  to  those  books,  and  swears  to  the  entries 
and  the  journal.  Says,  that  when  he  went  to 
bed  at  Abbotsbury,  he  always  went  to  his  own 
room  through  that  where  Mary  Squires  and 
Lucy  lay,  and  that  he  generally  saw  them 
every  night  during  his  stay  there.  He  aftirr- 
wards  went  to  Dorchester,  where  he  saw  in  the 
Kews  an  acccount  of  Elizabeth  Canning's 
being  robbed  by  Mary  Squires  on  the  1st  of 
January,  and  that  she  was  found  guilty ;  and 
that  he  then  immediately  said,  she  oould  not 
lie  the  wooMD,  became  be  mw  her  on  that  day 


at  Abbotsbnry.  He  then  went  to  Lewee,  end 
there  he  received  the  commissioners  of  excise 
orders  to  attend  the  then  lord  mayor  in  Loo- 
don  ;  and  upon  his  arrival  there  he  went  to 
Mary  Squires  then  in  Newgate,  who  imme- 
diately knew  him,  and  seemed  rejoieed  to  see 
him,  and  pot  him  in  mind  of  ell  the  several 
circumstances  before  mentioned  ;  end  con- 
cludes with  saying,  that  she  is  the  same  person 
that  he  saw  at  Abbotsbury  at  the  tinoe  he  hafr 
sworn  to.    The  next  is 

Francis  Aldborough,  (who  is  prodooed  te 
confirm  the  evidence  of  the  last  witoees,  with 
respect  to  the  entries  in  the  books  retanied  la 
the  excise-office  by  the  excise-ofiicersoutef  Ibe 
conntry)  and  he  produces  the  books,  by  wUeh 
it  appears  that  the  last  witness  Andrew  Wake 
officiated  for  John  Ward  (who  was  ill)  deriig 
that  time  of  which  Wake  has  given  yen  m 
account.    The  next  witnesses  are 

William  Haines,  and  John  Haines  bit  aWy 
who  both  prove,  that  Mary  Squires,  her  sse 
and  daughter,  were  all  at  Portersham  (which 
is  a  few  miles  off  Abbotsbury)  oo  the  9th  of 
January*  and  that  William  Clarke  was  with 
them,  and  that  they  lodged  at  the  sign  of  the 
Chequer  there :    tnat  he  invited  tb«n  te  hil 
house,  which  they  refusing,  he  and  one  Chie- 
man,  who  was  with  him,  went  to  them  at  the 
Chequer:  that  the  reason  of  the  father's  beingss 
certain  of  the  day  of  the  mouth  is,  becaose  be 
went  to  Abbotsbury  the  day  before,  which  wn 
the  8th.     He  is  very  positive  to  Mary  Smiiref, 
and  has  known  her  for  thirty  years.-— The  sos 
confirms  the  testimony  of  his  father,  in  remeffl- 
bering  them  at  Portersham,  end  remembeit 
also  his  seeing  Mary  Squires  at  Abbotsbury  es 
the  6th  of  January,  and  that  it  was  wet  whe- 
ther.   From  Portersham  they  went  to  Wg* 
way,  which  is  four  or  five  miles  from  Porter- 
sham.   To  prove  their  arrival  at  Ridgway, 

Francis  Bewley  is  called,  who  keeps  a  poblie 
house  there,  who  swears,  that  he  saw  this  ft* 
mily  at  Ridgway  on  \Vedne9day  the  lOlh  » 
January,  about  ten  or  eleven  o'clock  in  tbe 
morning;  that  they  had  beef-steaks  there; 
that  he  remembers  a  woman  whose  horse  died 
there  ;  that  he  supplied  her  with  another  in  iv 
place,  and  remembers  this  particular  drcnin- 
stance  of  the  horse  being  drawn  out  of  tb^ 
stab'e  to  be  skinned,  and  that  at  that  tiio*  ^ 
Mary  Squires  came  into  the  yard,  and  it  wtf  * 
remarkable  wet  day  ;  that  Clarke  bargain^ 
with  a  turnip-man  for  a  horse  to  carry  him  l>sc» 
to  Abbotsbury.  Remembers  that  Mary  SqaireJ 
and  her  family  being  short  of  money,  desired 
he  would  take  a  waistcoat  they  had  for  the 
reckoning,  which  he  did,  and  which  witnc^ 
produced  it,  and  has  kept  it  ever  since;  ao^ 
that  he  remembers  ihem  both  by  tbtise  circoi^ 
stances,  us  well  as  by  the  dead  horse,  tbe  wit* 
ness  of  the  weather,  and  by  its  being  Blandfof* 
sessions,  which  is  always  held  on  the  lOth  ^ 
January.    Thai  they  call 

Thomas  Mockeridge,  w  ho  is  the  ipsa  tb^ 
sold  turnips,  and  whose  horse  Clarke  hiied  ^ 
return  to  Abbbotsbury ;  and  he  remenben  *^ 


641) 


fttr  Wilful  and  Corrupt  Perjury. 


A.  D.  1754- 


[C« 


or  mast  of  ihe  aI>07«  meotioned  e? ideuce,  its  to 
Mary  Squlrni,  Iter  son  iind  dau^^hter,  tieing  at 
Hi«l|fw«^  on  ihe  10th  of  January ;  thai  Ibcj 
iitf«  at  Qbe  Betrtev'^^  the  d^n  of  the  Ship 
iliere  |  tli«l  he  renu'Uibers  Mary  Squtres  abo?e 
thrtm  yeon  before  ihut  time,  aod  is  very  jiosi* 
fife  »s  lu  tbe  crrcuitibtuttce  about  skioaiiig  the 
lii>r§e.     The  next  is 

J  '      K>r,  who  lives  at  Fordington  near 

J>  <  who  i^Fc^re,  thikt   h^  saw   Mary 

Si|UM  c»»  .;.  r  «on  tiid  daughter,  there  on  Thurs- 
day ibv  1  lib  of  Jauuary.  nemeinbers  that  the 
jn .  ti  ..I  i.r^,  n  -r*  (rr^.'it  00  Ihc  10lh»  that  they 
i'O  high  road,  but  were 
bl'  „     liis  yard  ;  that  a  miller'i 

(he  dauj^hter  through  the  water 
■\  and  that  Alary  Squires  walked 
it  |iBrt  of  the  water,  aod  there  were 
ti  vers  to  cross.     They  all  told  bim 
lay  ttt  Ridgway   the  nit^ht  before,  ond 
i  Uim  their  way  to  ChettJe.      Tbe  ne:ct 

Hunt,  who  was  threshing  in  a  ham 

it     >m  the  13th  of  January,  and  says, 

vs,  and  saw  Mary  li^uires^  her  »ou 

lui^  liter,  tht^re  on  that  day;  that  there 

jMihlic  }ioui>e  there,  he,  at  their  re- 

'hotn  lodj^inifs  in  an  out- house  be* 

Ir.  Walts,  where  they  lay  on  straw, 

thfre   till   between  nine  and  tea 

I  ruuriiiug^ :  it  was  very  wet  wea- 

,  was  on  or  about  Old  New-year's 

From  Cbeltle  they  iveot  to  Hartiu  ;  to 

e  which 

tiho  Elderton  is  called,  who  says,  that  he  is 

aiit  to  one  farmer  Thane,  who  lives  at  Alar- 

is  pojiilife  ihut  Mary  Sqtitre^,  ber  son 

oifhtfr,  by  i  au&ebt  ot  Ins  master,  Iny  in 

I"  brlongtn^  to  his  master*  that  he 

M  thrre  at  luur  in  the  ahernooo  on 

ty   se*nnii;ht  afi^r  Old   Christmas 

^aw  iheui  alHiut  eight  o^cloek  next 

*;t  ,  uud  thdl  his  macter  savi-  theni  at  the 

of  which  lie  woulil  have  i^ven  evt- 

w«»  pre  ten  ted  Uy  his  being  taken 


ttme  tmie« 


Siiltubury.      This  Ust  witness  is  con- 

I  tort  in  ihe  circumstances  anil  fact'^ 

iioued,  with  thiti  further,  that  Lucy 

WAS  ueit  tuorutng  lueudut^  some  china.    The 

'  ^t,  who  is  a  hlackf^mith,  works 

^  '\  and  is  positive  that   he  saw 

y<  uiT  Thane's  baru  at  the 

I  I*  K  wear  to.    Then 

\s  culled,  who  is  a  malsler  at 
f  s,  (hut  he  met  litem  :ill  upon 

i  ftu  Muriiu  and  Coonitm  oy  ihe 

'  ^iMy,  being  the  8uu<lay  next  after 

0.„  Mis;    is    positive    to    Wury    and 

Geort;  Snving^  !<eeii  ihein  Ufore;  he 

iiipl  til  *  ki?et*  o'chick  in  the  forenuon, 

Ifid  ii|fon  his  return  to  Coombe  the  same  day, 
btnw  Iheni  all  at  one  Mrs,  Greville's  the  sign 
^  the  LaJsib  there*    Tbiit  last  wituest  is  cou- 
irmedl»T 
liar  ^  ^  wha  irti  liiter  to  Thomas 


Greville^  whn  was  prosecuted  for  perjury,  for 
what  he  swore  at  the  trial  of  Ijklary  Squires,  but 
is  now  dead  ;  and  she  swears,  that  she  savf  ^ 
them  all  at  Coombe  on  llie  14th  of  January  at 
her  roo therms,  Mrs.  G rev i lie's,  the  aicn  of  thfl 
Lamb  there,  attd  that  they  lay  there  tnal  nighlj 
and  went  away  the  next  nioruin^^.  Thtf]f 
are  also  pro?ed\a  be  at  Coombe  on  li»e  14th  ( 
January  by  four  other  witnesses,  the  first 
whom  is 

George  Towil,  who  saw  them  there  on  thfl 
14th  of  January  at  Mrs.  Grevdle*s,  the  &ign 
tbe  I^mb : 

Richard  Aimer,  who  saw  them  at  I^Tis.  Gre«J 
vilte's  the  morning  they  went  away,  \«hich  woa^ 
the  15lh  of  January  :  and  by 

llobert  Merchant,  wha  saw  them  there  the 
14th  of  January  :  and  by 

Martha  Waleri^  wlio  fcuw  them  there  the  sami 
day,  and  that  she  astked  them  to  tell  her  for«| 
tune.  From  thence  they  went  to  Il*iiiin||*stoke|^ 
which  was  about  forty  miles,  and  they  were 
four  days  in  travelling  ihiihtr;  but  there  is 
DO  evidence  laid  brfoie  you  of  the  slVimmI 
places  through  which  ihcy  went  in  gfiiuig^ 
thrre :  but  this  chasm  will  not  be  very  material  I, 
if  you  give  credit  to  tbe  severnl  wiinesses  wliojie 
evidence  I  have  a  I  road  y  Uiil  bctore  you  ;  for  if 
you  believe  that  Mary  Squires  was  at  Abbots- 
huiy  on  the  Ist  of  January,  which  is  the  dny  on 
which  tbe  perjury  is  assigned,  it  is  un possible 
thiit  she  could  have  been  at  Enrield  on  the 
same  1st  of  Jaiiuary,  which  the  defendant 
swore  she  was, 

Mary  Morris  is  called  next,  who  says,  that 
she  h«es  at  B«tsing!(iokff,  ami  is  {triititiv*'  that 
uhe  saw  fjjlury  twjuires,  her  won  uml  dAngUler, 
at  her  own  house  there«  tbr  ^i^fu  of  ihi  ^^pix'ad- 
Eagle,  on  thp  18ih  of  Junnary.  aod  h^**  this 
pnrticular  reason  lor  reuieiiibermi;  i\  m^UwU  is, 
that  Lucy  8quires  desireil  sht?  v*ouf  I  writi'  a 
iHier  tor  her  ti*  one  Clarke  ai  Ahbnlshury. 
Tht  letfer  wa«  produc!ed,  and  $hei>Mei«rfi  it  was 
the  same  she  wrot(\  auil  «vliich  she  kt'ut  by  her 
little  lioy  to  the  post- office.  S<Ue  Hiiy«,  ihat 
they  stayed  at  her  \umHtf  about  lour  or  tive 
hours,  aud  from  thence  they  set  out  for  Old 
iSaysing,  Mhich  is  about  two  miles  from  Hit* 
sini^sloke.  bhe  is  ^ery  certain  a't  to  their  per- 
sons, and  says,  that  Mary  Sipiires  had  lain 
once  at  her  house.  Prom  thencif  ibey  went  to 
Brentford ;  and  to  prove  them  there, 

ElisCiibeth  iLdwaidft  is  culle^l*  uho  says,  thai 
she  lives  at  Brentlord  ;  that  Mary  HqoireM,  her 
son  and dauglitt^r,  came  to  her  house  thereon 
8ulurday  the  SOth  of  Janunry  ;  is  sure  they 
came  on  that  day  ;  rccolltci?*  ihc  lime,  because 
one  of  her  neighbour's  tluidreu  wmk  chrisitened 
on  that  day  ;  and  on  the  mxt  diiVr  Wing 
Sunday,  George  Scpiires  wrnt  to  London  td 
fet«:h  hi^  other  siiktt  r^  aud  brouglit  her  on  Mon- 
day, aod  on  Tuf^dny  they  till  went  awoy  ;  is 
positive  li>  Mary  8«iiiir€s,  hecaune  gome  time 
niter  she  saw  her  in  Newgnte.     The  next  is 

Husannab   Bunvill,  who  is  daugbtrr  to  the 
last  witness,  and  conlirms  her  itiotlii'r's  c^vi- 
dence  in  erery  particutar.    From  thence  they 
5T 


643]  27  GEORGE  11. 

went  to  a  place  called  Pagfe-Green  ;  to  prove 
which,  they  call 

William  Tredget,  who  keeps  the  Seren  Sis- 
ters, a  public  house  at  Tottenhaniy  four  miles 
from  LoiidoD ;  is  very  sore  that  be  saw  Mary 
8quires,  her  son  aod  dauj^hter,  at  Pagfe*Greea 
on  the  d3d  of  January,  who  told  hiai  they 
wanted  lodj^ingB  •  that  his  wife  anil  he  were 
together ;  she  recommended  them  to  lodge  at 
a  farm -house  in  that  neighbourhood ;  and  says, 
that  he  is  certain  as  to  the  person  of  Mary 
Hquires,  having  seen  her  three  years  before, 
and  had  tukeo  notice  of  her  as  the  most  un- 
common face  he  had  ever  seen,  and  went  to 
tee  her  when  in  Newgate.    They  then  call 

Mary  Tredget  his  wife,  who  agrees  with 
ber  husband  in  erery  circumstance  of  his 
evidence.  And  the  next  day,  as  appears  by  the 
evidence  of  George  Squires,  ihey  all  arrived  at 
EnAeld. 

The  next  piece  of  evidence  it  to  prove  the 
letter  sent  by  the  post,  which  Nary  Morris 
•ays  in  her  evidence  she  wrote  to  Clarke  at 
the  request  of  Lucy  8quu:ei ;  and  to  prove  thia 
tbevcall 

Thomas  Raveohill,  who  is  clerk  of  the  wes- 
teni  road,  and  he  proves  the  letter  to  be  sent 
from  Basingstoke  to  London  by  the  mark  of  the 
post-office  in  London  ;  it  was  sent  to  Dorchet* 
ter,  which  is  the  poat-town  to  which  Abbots- 
bury  is  nearest;  and  that  the  whole  postage 
through  Lundon  fh>m  Basingstoke  to  Abbote- 
bunr  amounted  lo  seven-4>ence. 

The  evidence  next  proper  to  be  laid  beibre 
you  is  that  of  Mr.  Alderman  Chitty,  who  waa 
the  sitting  alderman  at  Guildhall  upon  the  Slst 
of  January  1759,  which  was  the  day  on  which 
Elizabeth  Canumg  laid  ber  information  before 
him  (»f  the  treatment  she  had  met  with  at 
IVells's.  The  acoiunt  she  then  gave,  appears 
by  the  notes  lie  took,  which  he  produced,  and 
which  have  been  already  read  in  evidence;  so 
that  by  comparing  the  information  she  laid 
before  him,  and  the  evidence  she  urave  at  the 
trial  of  Mary  Squires,  you  «vill  find  thev  differ 
in  many  remarkable  circumstances,  both  as  to 
the  size  of  the  room  she  was  confined  in,  the 
furniiiire  of  it,  as  well  as  the  bread  and  the 
water  she  swears  she  found  and  left  there.  As 
to  the  size  of  the  room,  she  swore  before  him, 
that  it  was  a  square,  dark,  or  darkish  room, 
furnished  in  the  manner  vou  have  heani ;  that 
there  was  some  waier  left  in  the  pitcher  when 
■he  made  her  escape ;  and  that  she  found  in 
the  room  no  more  than  four  or  five  pieces  of 
bread,  amounting  to  the  quantity  of  about  a 
quartern  loaf:  so  that,  by  comparing  the  in- 
formation (the  then  gave,  with  the  evidence  she 
ffave  at  the  trial  of  Mary  Squires,  ]^ou  will  find 
that  there  is  a  manifest  contrarietyin  those  two 
accounts  in  many  particulars.  The  next  wit- 
ness is 

Mr.  Qaweo  Nash,  who  says,  that  upon  see- 
ing a  very  extraordinary  paragmph  in  the  newa- 
paper  relating  to  Elizabeth  Canning,  and  be- 
ing an  acquaintance  of  Mr.  Lyon,  (who  waa 
mt  master)  he  went  to  Mr.  Ljmi  «a  the  9M 


Trial  of  Elixabeih  Canmngf 


[644 


of  January  1759,  and  bearing  that  Elisabeth 
Ganninff  waa  to  be  examined  before  AMeiwan 
Chitty  that  dav,  he  went  with  Mr.  Lyon  to  liear 
the  account  site  gave;  and  remembers  that  be- 
ing asked  by  the  alderman,  what  sort  of  a  room 
she  was  confined  in,  ber  answer  was.  That  it 
was  a  little,  square,  dark,  or  darkish  room,  and 
that  there  were  some  Iwards  nailed  before  the 
windows,  through  which  she  saw  the  Hertford 
stage-coachman,  who  used  to  carry  her  mla- 
tress ;  that  there  was  in  the  room  a  brokca 
stool,  and  an  iron  grate  in  the  chimney ,  aod  a 
few  oM  pictures  over  it.  Sheaaid,  tbatabo 
lay  on  bare  boards,  and  that  there  were  aercfal 
pieces  of  bread  which  were  blue  and  moohtj^aod 
amounted  to  about  the  quantity  of  a  qoartHi 
loaf.  The  account  she  gave  of  her  eecapo  Ml 
by  pulling  down  a  board  nailed  on  the  wiodw^ , 
and  that  she  hurt  her  ear  by  a  nail  in  geHim 
out.  She  said,  she  heard  the  name  of  motlwr 
Wells  during  her  confinement,  and  therdbit 
concluded  she  had  been  at  her  house  ;  but  dtt 
never  mentioned  the  name  of  Virtue  Hall  be- 
fof  e  Alderman  Cbhty.  Upon  this,  the  aldemaa 

Sauted  his  warrant,  which  being  backed  by  a 
iddlesex  justice,  Aldridcc,  Lyon,  Hagae,and 
himself,  went  lo  Enfield  to  see  it  exeeoted. 
HThat,  when  they  went  to  Wells's,  they  saw 
several  people  in  the  parlour  there,  and  having 
taken  a  view  of  several  rooms  in  the  hooie,  the^ 
saw  a  labouring  man  there,  and  asking  him  if 
there  were  not  some  other  rooms  in  the  hoaai^ 
he  palled  a  button  off  a  door,  and  opened  il^ 
which  led  up  seven  or  ei^ht  steps  into  the  hay^ 
loft  or  workshop.     He  is  very  confident  that 
there  was  no  lock  on  the  door,  or  even  the 
marks  of  one,  when  he  went  into  the  room:  it 
appeared  a  very  long^ne;  and  not  resembling 
the  description  which  Canning  had  ^ven  oT 
it,  he  wondered  where  the  room  was  m  which, 
she  was  confined ;  and  upon  acquainting  his 
companions  with  the  variety  of  thinffs  he  bad 
ohservetl  there,  (and  of  which  she  had  not  mad» 
the  least  mention)  particularly  of  the  quantitnr 
of  hay,  the  nest  of  drawers,  the  tub  of  pollar^ 
the  three  old  saddles,  the  bed  made  of  haj^ 
where  some  poor  people  seemed  to  have  lain^ 
together  with  the  jack-line  and  pullies,  th^P 
little  chimney,  where  there  did  not  appear  tc^ 
have  been  either  hearth  or  grate,  nor  any  pic*^ 
tures  orer  the  chimney,  nor  the  appearance 
anjT ;    though  he  says  there  was  a  windo 
which  commanded  the  great  Hertford 
through  which  might  be  seen  a  great  watering-—" 
pond,  which  was  within  nine  or  ten  feet  oft'     ^ 
window ;  and  that  this  window  was  in  the  c 
part  of  the  room,  but  had  not,  as  he  could  < 
serve,  the  least  appearance  of  ever  having  Im 
boarded  up,  and  was  large  enough  for  him  1 
get  out  of,  and  was  so  near  the  ground,  that  h 
shook  hands  with  his  wife  out  of  it  w  hen  sh 
stood  on  the  ground,  the  casement  of  which^ 
ojieoed  and  shut  very  easy,  and  the  room 
li|;ht ;  and  if  he  had  h.iug  his  iKidy  out  of  I 
wmdow,  his  feet  could  have  been  at  most  i 
above  three  feet  from  the  groutul.    The 
window  looka  over  a  Imeiaad  trees  grow  i 


645] 


Jqt  Wilful  and  Corrupt  Perjurtf, 


A.  D.  17M^ 


r64« 


km  reodi  nf  ftl ;  aod  tiien  abieirmg  tliat  there 
ymM  A  good  d«al  ot  lr«iy,  which  Elizibelti  Can- 
DiiiC  DJiti  Dcit  rncitiktrK'il,  be  trtlU  t!iecitin|Miiiy 
wilE  binif  Uiai  he  was  sure  tU.acoultl  noi  be 
llw  room.  Aftcr^i&rJfl  thej  hail  on  account 
^itft^t  them,  Ihat  WeUf,  and  Mary  Squirest 
air*  ,  were  seiured  ;  upon  wbusb,  ihey 

ivi .  .iH*B,  uoel  beioj^  inmalieiit   tor  the 

llTif  al  oi  i^lixabeih  Canniri4tt  ^  ho  whs  ih«n  od 
llierottd,  Adojnsoa  went  to  nie^t  bet',  bhu  o&ked 
bar  upon  the  road,  whether  there  was  auy  hay 
&0  tlie  room  ?  who  answered,  there  wa«  a  little 
Iti^rn;  at  which  he  fteeri»ed  very  much 
Aod  i  ferj'  lililc  lime  after  tfii^,  EU- 
V  ■>  '  •  iTAs  bioii^ht  ty  Wells's;  aud 
u  the  pai  lour,  where  the  pri- 
-*»*'  was  ih'sircd  to  Hx  on  the 
,  aud  iUe  invt:intly  Hxed 
^  ii  this  time  Mary  8^tiirf§ 
MJt nation  in  the  rooai,  that  n**itlti;r 
he  couhl  see  her  tat^*).     Upon 


Ci^ 


liltteb,  Lucy  8qnirex  said  to  her  mother,  Tlte 
yMUj^wotuun  (tne&nint^  Ehzubeth  Canning), 
eiMrgiiyuii  wiih  robbing  her.  Mary  Squiretf, 
■^limt«  i^tnie  acrosn  the  ronm  to  her,  and 
md,  MBdiini,  do  you  Any  I  robbed  yon  ?  tVoy, 
htk  al  tbn  face  ;  for  if  you  ImJ  seen  it  before, 
fto  muiH  hav*  remembered  it;  for  God  Al- 
SMfbly  o«ver  made  such  another.  And  n|iott 
Cmiinff'i  dn  '    ■    be  robbed  her  on  New- 

tctr'taay,  V  r.g  saj<l,  I*or«l!  madam » 

1  wtB  on\h.i^  <'.M  '^>>  i^Liudred  anil  twenty  miles 


Of. 

i'H 
L 


upon  which  ihf  witness  ksked,  Where? 

itkxuri  u/is,  That  slie  was  at  Abbotfibury 

I:,  und  that  she  could  brin^  an 

jile  to  prove  it,  who  had   known 

J,  and  40  years.     There  wab  one 

V  then  in  the  room,  who  said,  ibat 

I  II  'i<  N.itu5,  had  been  in  the  housie  ten  or 

-  '^    '  ^S  <ind  that  Mary  Sonires  hnd  b^en 

K  but  a  very  Utile  time;  and  that 

I'  ihen  Raid,  that  )iht»had  iieter  st'eu 

Sttujm;;  !jcri>re.  When  she  wjib  taken  into  the 
^a  cahed  the  hay  •lull,  she  !iiiid,  ahe  remem* 
IfH  a  f     '  '  'irr,  and  a  lo- 

^•Oco-r  I  thechifit  of 

itl9ifrb^  iiitr  mil  mml-kl'iii  hj«"  iH^iurd  wai,  and 
■•Uml  oUier  tliintrig  in  the  room,  nhe  miule  no 
NRfrtr,  And  beixi*^  askeil,  why  slie  did  not 
^VHlatotir  to  e«iap«'  out  of  ttie  east  winitow, 
*lit  aaid,  ahe  thought  it  was  fa«t«  ned.  And 
V|)te  the  wh<d«f,  this  witne«i«  lell!^  yaij^  thai 
Ij^pn  4!aiiM»^riii^  what  he  had  ob!tt«r¥ed  at 
^^  I  the  account  Vi  hich  Cannint;  tfave 

*^-> '  nnnn  C'huty,  he  waa  uf  optui'in, 

JIui  brr   tftidfuci-  **MX  tirviijiuMlly    false.  Of  at 
JttMt  that  she  was  i^ro^sly  un^tHken.     On  hiii 
aiked^  xtliiy  li«  did  not  ^ive  this  efidence 
trial  of  ^lary  Squiren  r*  his  answvr  mab, 
btt  waik  Ihal  dav  ^bh^^ed  lo  leave  the  Old- 
y,  lo  Attrikd   ine   Golil««outhi^'  company 
Ir  IC  Bi)  rmployrofnt  uudt.t-  ifieni) ;  and  he- 
fiiUy  caLiiicd  4tf  lilt:    innoiM-nce  of  Mary 
"  -    ■    '  '  '  -'r  '  'V  t  %ht*  I'nuld  no?  be  found 
iared  th«  sobytani'e  id 
..  i,^  i,^  iiw,>  ,,,,.iii  la^evernl  people  before 
^hu  iriAli  ami  tmag  s&lrKiady  tu^uy  afiwr 


her  eon^ictioii  at  his  not  f^iving  evidence  upon 
her  trial,  be  went  to  sir  Crisp  Gascoyne,  then 
lord-mayor^  to  whom  he  disclosed  the  whole  or 
the  subsiance  of  the  evidence  he  has  now  t;if  ea, 
Thi'  neict  witfieta  ii 

John  Ha^ue,  who  weot  with  the  Uist  witness 
to  Enfield,  and  hariniC  told  him  what  passed 
before  Alderman  Cliitty,  aj^reed  lo  ^n  wuU  liim^ 
Ahlrid^p,  and  Lvon,  to  EnfiehL  Hecoidirnis 
the  account  whirli  Naah  ha«  (given  m  everj 
particular;  but  wi<h  this  addition,  that  during 
ibe  lime  that  Elizabeth  Cannini^  was  in  the 
house,  till  she  was  carrtpd  in^o  tiie  parlouri 
(^bere  Wary  S^uiies,  Wi  Ms,  and  ih<  rt^t  were) 
she  never  nifoifooed  her  lieiotf  r»i>lierl.  He 
aays,  indeed,  tlial  FJiz.ibctli  Canning'  on  beinjF 
a&ked  whether  kIic  haw  the  person  who  rubbed 
her,  poiniftd  to  Mary  Hqnires;  hut  be  was  sur- 
pri/.ed  at  her  doing  so,  becaust-,  in  the  situaiioa 
Mary  Sfpiiros  then  was.  hethou(;bl  li  impossi- 
ble ihe  shotdd  see  ber  face.  Say^i  he  heard 
Mary  Hqnires  express  herself  (^'heo  she  wa« 
charjjed  with  the  mbberj)  in  Ihe  nianner  Nasb 
has  mentioned.  He  describes  the  room  in  iha 
same  manni^r  Nash  has  done;  that  there  i«as 
onl  the  least  ap]>earance  of  a  i^raieeiver  havhi|p 
been  there,  or  pictures  over  the  eluinncy, 
Atrrcea  with  Nash  as  to  the  windows,  Ire^sai 
hay,  aud  bed  there,  and  likewise  the  cheat  of 
drawers,  ikc.  which  appeared  to  have 
above  a  year  there,  and  that  there  was  only  j 
button  on  the  door,  and  no  lock,  no  pent-hoitse^ 
under  either  of  the  windows  ;  attd  then  finding 
that  what  he  saw  did  not  corrc*spond  with  tlie 
account  which  Canolotr  had  lEiveu,  said  to  her 
with  some  warmth,  ZoumU,  chiUf  I  cannot 
eliink  you  have  been  here  at  all.  Up'^n  which 
Ka».h,' Aid  ridge,  and  he  told  Lyon,  tliat  they 
thoui(ht  her  whole  atory  was  false,  which  hi 
think«  to  be  the  reason  they  w^re  not  sub^ 
po'naed  to  i^ive  evidence  at  the  trial  of  Mnrjl 
8<piires,  though  he  owns  he  was  in  court  duriRg 
the  whole  trial.  He  sitys,  that  Elizabeth  Car 
ninjj  charged  Virtue  Hall  and  Lticy  »S4uirea»  i 
beinjf  present  when  her  slays  were  cut  uflTj 
but  they  both  very  solemnly  offirmiil  at  thai 
time,  that  they  newr  fuiw  her  in  Ibeir  fives, 
before  ulio  so  charged  th«  m.  He  Bay«,  he  was 
so  greatly  ufl'ecled  by  Ihe  eviilence  which  Eli- 
zabeth Cinnuig  bad  given,  that  he  had  noil 
!ipiriUi  to  de<iire  to  he  called  to  contradii't  her«| 
Andsaya  farther,  that  upon  Mary  8c)uir«*«  heail 
tng  convicted,  he  could  not  rest  till  he  applieM 
to  the  late  lord- may  or,  to  ttC4ii3«int  him  wiilil 
the  account  he  has  now  i^iven ;  and  that  hii 
only  motive  in  ^n  doing,  «» aa  thut  of  rcMruin^l 
the' innocent  from  opprcsNion. 

The  next  is    Edward    Aldrtdge,   who  ia 
silversmith  in  Posler-lane,  who  vMiit  with  Naftli|,^ 
Lyon,  and  Hague»the   1st  of  tVbrnary  17ifl 
and  wht>  agrees  with  the  two  fornifr  witnee»M*i 
to  every  particular  as  to  the  description  of  iIkiI 
room,  and  U  of  opinion,  thnt   when   Eiiitalieilil 
CauntniE    ^vas  (irst  carried  there  on  ihiat  daypj 
that  she  did  not  seem  to  know  whi-re  nhe  waa  ] 
and  that  when  ahe  was  lint  taken  mto 
pattoiiTi  Walb  oakid  hcr»  il'  iha  kiivtv  htfl 


647] 


27  GEORGE  IL 


Her  answer  wm,  that  she  did  not  And  that 
Geortre  Squires  asked  her  the  same  question  as 
to  her  knowinfi:  him ;  to  which  she  (^ve  the 
same  nnsvi  er :  but  says,  that  she  char^ir^  the 
old  woman  in  the  corner  of  the  chimney 
(mpanin.*  Mary  Squires)  as  the  person  who  cut 
off  her  stays ;  Imt  is  of  opinion,  that  Elizabeth 
Caniiinir  could  not  at  that  time  see  her  face ; 
and  ic  positive  in  remeiiiberinc^  what  Mary 
Squires  smi.I  as  to  her  bein^"  very  remarkable 
ill  her  per&on,  and  of  her  being  at  Abbowbury 
at  the  ti.iic  whei*  Glizubelh  Cannini;  swore  she 
wa^  robbod.  He  then  made  his  observations 
on  the  room  called  the  hay- loft,  and  recotlerts 
seeing  all  the  partirulars  there  which  Nash  and 
Ha^fue  have  mentionnt  in  their  evidence;  and 
says,  that  from  all  the  observations  he  could 
make,  he  is  convinced  that  it  was  not  a  place 
of  continement.  He  says,  that  he  went  to 
Wells's  as  a  friend  of  Caimim^'s  at  his  own  ex- 
pence  ;  and  after  layinjEf  all  the  circumstances 
attending^  (his  extraordinary  case  toi^ether,  he 
saw  one  Mr.  Hall,  of  Theobalds,  and  told  him, 
that  he  thoug^ht  Elizabeth  Caonim^  was  mis- 
taken ;  for  he  was  sure  she  never  had  been  at 
Wells's.  He  says,  be  was  at  the  Old  Bailey 
part  of  the  time  of  the  trial  of  Mary  Squires, 
but  went  away  to  dine  with  the  Goldsmiths' 
company,  conrliidinfr  that  she  must  have  been 
acqiiittecl,  as  being  quite  innocent  of  the  rob- 
bery \»  ith  which  she  was  charged.  The  next 
ivitness  is 

William  White,  one  of  the  marshal's  men, 
who  is  one  of  those  who  went  to  Wells's,  in 
order  to  execute  the  warrant,  and  took  Wells, 
Mary  Squires,  and  the  rest  into  custody. 
When  they  were  secured,  they  desired  they 
might  look  over  their  goods,  which  they  did  in 
his  presence:  but  he  saw  no  stays  amongst 
them.  He  then  went  into  the  hay-loft,  where 
he  ol)scive«l  about  twelve  or  Bfteen  trusses  of 
hay,  which  seemed  to  have  been  there  a  con- 
siderable time;  and  he  also  observed  all  the 
other  things  in  the  room,  which  the  other  wit- 
nesses have  mentionefl,  and  concluded  as  they 
did,  (for  the  reasons  you  have  heard  from 
them)  that  Elizabeth  Canning  was  mistaken. 
He  went  under  the  north  window,  out  of  which 
she  says  she  escapcii ;  but  there  were  not  the 
least  marks  or  footsteps  to  be  seen  of  any  body's 
getting  oui  of  that  window,  neither  was  there 
the  appearance  of  any  slied  or  pent- house. 
Was  presc>ntwhen  Elizabeth  Cunnint;  fixed  on 
Man  Squires,  and  heard  both  Mary  Squires, 
brr  son,  aud  her  daughter  say,  that  they  were 
at  that  time  in  l)ors('tshire ;  and  the  other 
dau^^iiier  said,  that  she  was  at  that  time  at  her 
unclf'x  in  thr  Borough.    The  next  witness  is 

Fonuui*  NatiH,  who  is  a  poor  labouring  man, 
(and  is  mentionetl  by  srime  of  the  other  wit- 
nesses), fie  sa^K,  that  he  came  to  lodge  at 
Mrs.  Wells's  aliout  a  fortnight  after  sir  Crisp 
Gascoyne  was  sworn  lord-mayor,  and  that  he 
and  his  wife  lay  in  the  room  called  the  work- 
shop or  hay-Ion  ;  that  his  bed  was  made  of  bay 
and  straw,  and  his  bolster  a  sack  of  wool ;  and 
describe!  the  littiation  of  both  windows  in  the 


Trial  of  Elizabeth  Cannings  [648 

room,  and  that  one  of  them  looked  into  the 
I  great  road.     He  says,  that  he  and  hii  wife 
continued  in  that  roem  from  the  27th  of  No- 
I  member  to  the  2d  of  February  followiog,  ex- 
I  cept  one  night,  during  which  time  he  had  a 
very  goodopportunity  of  observing  every  thing 
;  in  it ;  and  says,  ttiat  there  was  no  grate  in  tbi 
chimney,  but  remembers  the  nest  of  drawen^ 
I  the   side-saddles,   the  tub  with  pollard,  and 
i  many  other  thmgs,  which  he  specifiea  partica* 
larly  in  his  evidence.     He  mentions  tne  siga 
of  the  Crown,  which  was  at  the  feet  of  hia  bfd| 
which  he  says  was  bimgrht  by  Whiffin;  bntii 
positive  that  ithere  were  no  pictures  over  iht 
chimney ;  and  says,  that  he  is  sure  that  hi 
lodf^ed   there  the   whole  month  of  Janony, 
j  and  continued  there  till  the  warrant  was  e**' 
.  cuted  on  the  2d  of  February,  and  after;  ai 
i  that  he  never  saw  Elizabeth  Canning  there,  V 
j  any  where  else,  before  that  day.      He  saji^ 
that  during  that  month  of  January,  Wells's  m 
and  daughtei*s  used  frequently  to  go  into  ihil 
hay-hift,  where  he  and  his  wife  lay,  for  hiy 
and  |»ollard,  as  they  wanted ;  and  says,  Ihst 
during  his  stay  there,  Virtue  Hall  wasaki^cr 
in  the  house  ;  and  says,  that  Mary  Squires,  Enr 
son,  and  daughtei-s,  had  been  there  no  lesfor 
than  a  week  and  a  day  before  they  werstsbn 
up;  and  when  he  is  asked  why  he  is  so pH^ 
ticular,  his  answer  is,  that  Mary  Squirm's  per^ 
son  was  so  remarkable,  that  it  atruck  a  sort  of 
terror  in  him.     He  remembers  the  nitcber,  iid 
says,  that  his  wife,  and  all  Wells's  fkmihr; 
used  to  bring  water  in  it  from  Mrs.  Howard^ 
which  was  opposite  to  Wells's ;  but  says,  tlutt 
he  never  saw  a  bed-gown  at  Wells's.    He  mi 
subpoenaed   to  give  evidence  at  the  trisi  of 
:  Marv  Squires  and  Wells,  and  attende<l  is  lbs 
;  yard   at  the  Otd-Bai!ey;    but  was  assaulted 
I  there,  and  was  (with   some  other  witnrsies, 
i  who    attended  there  on   the  same   occasion) 
I  turned  out  of  the  yard  three  or  four  dtffereot 
I  times.    Then 

j      Judith  Nat  us  (who  is  wife  to  the  last  wiinea) 
I  is  called  in,  who  agrees  with  the  evidence  ber 
husband  has  given  in  every  particular;  tbtt 
tliey  lodged  at  Wells's  ten  weeks  all  but  tbres 
days,  and   continued  ther«»  till  they  were  tU 
taken  up,  which  was  on  the  2d  of  Februarf* 
Sbe  is  rather  more  exact  than  he  is  as  to  ibe 
;  signs ;  for  she  says  there  wrre  two  signs,  0*0 
.  the  sign  of  the  Fountain,  and  the  other  wastbc 
;  sign  of  the  Crown  ;  and  that  Whiffin  bought 
the  sign  of  the  Crown  some  time  (as  she  W* 
lieves)  before  OKI  Christmas,  and  afterward^ 
bought  the  irons  of  both  the  signs,  which  wer< 
not  taken  away  till  about  a  week  before  Nar9 
■  Squires  and  the  rest  were  taken  up.     ^h^ 
she  is  shewn  the  bed-gown  and  liandkerchi^* 
!  she  swears  that  she  never  (to  her  knowled^^i 
saw  them  before.    She  remembers  all  tlie  s^ 
veral  thinfi^  in  the  room,  of  which  her  hnsbai^ 
'  has 'already  given  a  very  exact  account;  ai^^ 
says,  that  she  gave  the  saiue  account  she  ds^! 
now  before  Mr.  Fielding ;  but  was  so  insiilt^^ 
by  the  mob  at  the  time,  when  ahe  attended  m^ 
the  Old-Bailey  upon  the  trial  of  Hary  r 


Jot  Wilfut  and  Corrupt  Perjurtf* 


A.  D.  1754. 


[650 


Aod  VVeKs,  lljal  Fhe  was  not  Me  to  give  eri- 
deoce.     The  next  is 

Mary  Lnrncy,  who  keeps  a  cbarrtller's  shop 
at  EiifteM-Wash,  who  sa^^s^  that  she  remem- 
bers Ihe  two  last  wiUiesses  loilgin^  at  WelJs's 
ttbout  the  lime  ihey  have  tohl  you.  She  say&f 
that  the  first  tjiiie  she  aaw  ftlary  Njnire*  was 
ou  VVecloesday  the  2tlh  of  January,  ami  ahe 

^ditl  not  see  her  afler  liilt  he  Thursday  se'ooight 
following  ;  anil  that  during^  the  time  itiat  Mnry 

I  Hqitjres  was  at  Wella^n,  Lucy  S(|uires  used  to 
buy  chandlery  ware  of  her 

Sarah  Howit  is  the  next,  who  is  Wells's 
•laughter,  and  swears,  that  sdie  lived  with  her 
mother  that  same  month  of  January  which 
Klizabelh  Canning  has  fixed  on  to  he  the  tiioe 
of  her  CiinfliienieLit  ;  and  saysi  that  Mary 
^qutri'S  and  her  fniuily  came  to  her  moiher^s 
on   Weilnesday  the  24tb  of  Jaouary,  and  re- 

j  maiDcd  there  till  they  were  taken  up*    She  is 

i  positive  that  Fnrtune  Natus  and  his  wife  lodged 
at  ber  mother'Si  iu  the  hay- loft,  both  beibre 
and  after  they  were  all  takea  up ;  aod  that 
they  had  been  there  considerably  abort  two 
months  io  the  whole;  mentions  the  hay  and 
pollard  ihere,  and  the  uie  they  were  put  there 
tor.  She  is  very  certain  that  she  lay  at  her 
I  mother^s  the  whole  months  of  December  and 
January,  during  which  time  Virtue  Flail  and 
fthe  went  very  frequently  into  the  liny -loft. 
Remembers  a  particular  circumstance  of  trees 
growinj^  ai^ainst  ibe  east  window  of  that  roum, 
and  that  upon  the  8th  of  January,  Edward 
Alien,  Giles  Knight,  and  John  Laroey  lopped 
Ihemi  and  at  that  tioie  Virtue  Hall  and  she 
both  lo4>ked  out  of  ^e  window,  the  casement  of 
I  which,  she,  the  witness,  opened,  and  that  tlie 
I  irees  be  loured  to  one  Richard  Allen.    She  «  as 

Sreseutwhen  Elizabeth  Canning  fixed  on  Mary 
«|uire8  as  the  person  who  robhed  her;  but 
I  says,  that  at  that  time  1^1  a ry  Squires  was  io 
I  tocb  a  situution,  that  it  wa^  i.j possible  for  her 
^  to  see  her  face*     The  next  witness  Is 

Juhu  Larriey,  (who  is  produced  to  give  an 

I  account  lit  the  liipping  the  trees  mentioned  by 

lb(f  last  witnf  ><!j)  who  says,  tliat  he  very  well 

I  rcmeo)hei-a  that  he«  Allen  and   Kuigbt,  went 

I  tog^eiher  on  the  8tb  of  January  1755,  for  that 

I  purpose  ;  and  that  Koit^ht  lopped  theoi^  and 

told  him,  that  he  should  have  ihe  lops  ;  and 

thai  at  tlie  sarue  tiine  Saiah  Howit  and  Virtue 

Mall  were  lonkin^  out  uf  the  window  of  the 

ivorkitbop,  sind  that  Allen  l^ung  dirt  at  them, 

vrhich  they  desired  he  wi»uld  not  ilo.     He  says, 

»  lie  had  the  arms  of  ihe  trees  and  VVtrllH  had  the 

Ianray.  Ho  sa^s,  that  he  plaistered  np  two  of 
tne  four  windows  in  the  workshop,  nnd  there 
remained  only  two,  viz,  one  i>n  the  east,  and 
the  oiher  on  ihe  norib ;  that  the  window  on 
I  the  ea»t  was  not  above  iseven  or  eight  feet  from 
[  ihe  ground*  and  that  the  wall  was  so  very  thin, 


He  lives  opposite  to  Wells^s,  and  gave  this  ac* 
count  before  ibe  triul  of  IHary  Squires, 

Ciiles  Kmg:ht  is  called  nixt,  who  says,  that 
he  lopped  the  trees  nieniiooed  by  the  former 
witness,  and  is  very  positive  that  he  loppe4 
them  on  the  3th  of  January  Remembers  that 
circumstance  of  Virtue  Hall  and  8arah  Bowit  , 
looking  out  of  the  wimlow  of  the  workshop  at 
the  same  time,  and  of  dirt  being-  flung-  at  I  hem, 
ami  that  Larney  bad  the  lop$,  and  Wells  ihe 
spray,  for  which  she  gave  them  some  beer. 
Remembers  au  accident  of  one  31  rs.  Picket 'a 
cart  breaking  down  that  day  ;  and  says,  that 
the  window  out  of  which  the  women  looked  at 
I  hat  time  was  large  euongh  for  him  to  get  out 
of.     The  next  witness  is 

Edward  Allen,  who  (as  the  tw^o  former  wit'* 
nesses  swear)  was  with  them  at  the  time  of  the 
japping  the  trees  which  were  near  the  work* 
shop,  and  is  very  positive  to  the  dth  of  Janu- 
ary, as  the  other  witnesses  have  sworn ;  and 
iiarticularly  remembers  that  Virtue  Hall  and 
»arab  Howit  looked  out  of  the  wmdow  of  iba 
workshop  or  hay- loft  at  the  same  time;  and  « 
confirms  what  tbey  have  said  in  every  circu in- 
stance* 

John  Canlrll  is  called  next,  who  keepa  m 
public- house  a  Little  distance  from  Wells's,  and 
says,  tliat  upon  this  Sth  of  January,  Knight 
and  Allen  came  to  his  bouse,  and  said  they 
had  been  at  play,  throwing  clods  at  8arab 
Howit  and  Virtue  Hall,  who  %vere  looking  out 
of  a  casement  that  day  at  Wells's  :  he  U  very 
particular  to  that  day,  because  it  happened  on 
a  Monday,  and  the  Tuesday  folloning  be  bad 
a  piece  of  beef,,  which  he  iut^nde^l  to  roast  for 
his  custoniers,  being  Christmas  time;  and  says, 
that  be  remembers  that  Fortune  Naius  and  hit 
wife  lodged  at  Wells's  between  two  and  three 
months.  The  end  of  producing  this  remark-* 
able  piece  of  evidence,  as  Io  that  circumstance 
of  lopping  the  trees  on  the  8ih  of  January,  is, 
that  (if  these  witnesses  swear  true)  it  is  impos^ 
sible  that  Canning  could  have  been  alone,  or 
even  at  all  in  Ihe  workshop  or  hay- loft  al 
Wells^s,  upon  ihe  8tb  of  January  1753,  which 
she  swore  she  was,  u|ion  the  trial  of  Mary 
Sf]uires  and  Welts.    The  next  witness  is 

Exra  W biffin,  who  is  referred  to  by  some  of 
the  furmer  i^itnesses,  as  being  the  person  who 
bought  VVells'K  sign- irons*  He  lives  at  Eu* 
field -Wai^h,  and  having  occasion  for  some  sign* 
irons,  and  hearing  that  Wells  bad  some  to  dis- 
piKSt?  «f,  he  w**ut  IO  ber  on  the  18lh  of  January 
1763,  »ho  ti>ld  buu  they  were  in  the  room 
ctthfd  Ibp  hay- loft;  be  weul  with  ber  there, 
and  looking  about  Utr  the  irons,  Wells  said, 
N*"w  t  rfccdiect,  the  ir^ins  are  under  the  fSeet  of 
ibis  poor  creatureV  bed  (pointing  to  the  bed 
where  Matus's  wife  then  lay,)  8he  then  took 
up  Irom  under  the  bed  a  piece  of  wocjil,  to 
I  Wing  ouly   lath   and  plaisler,  that   any    one  j  which  ihe  irous  were  then  fixed.     He  agreed 


I  might  have  pushed  it  dciwn.  He  is  very  post 
iftvetothe  8th  of  January  being  the  day  on 
j  which  the  trees  were  lopped,  because  his  child 
I  was  christened,  aud  be  set  his  chiuiney  on  fire 
With  the  lops  wbicli  he  burnl  ou  that  occasioD. 


to  buy  the  irons,  v^hich  his  son  took  out  of  the 
wooil,  an'l  brought  the  wo^hI  back  to  ber.  He 
gives  you  a  reason  for  h'ls  rememheriug  the 
day  so  particularly,  becau>;e  he  was  on  thai 
l@ib  of  iauaary  goiDg  to  a  place  calied  Worm* 


051] 


27  GEORGE  II. 


Trial  ffEHzabeth  Catmhigf 


[65S 


lei^b,  to  borrow  fife  guineas  of  a  man  who 
kept  a  iiublic-houae  ibere,  in  order  to  make  up 
a  anoi  ne  tben  owed  bii  brewer,  (for  which  he 
bad  fpiven  a  note,  in  which  one  Livingstone 
joined  with  him)  who  bad  arrested  him  for  it. 
Then  Livingstone  is  called,  who  confirms 
fVlMffin  in  that  circumstance  of  the  note. 

John  Whiffin,  the  son  of  Ezra  Whifiin,  is 
called  next,  who  swears  that  be  went  with  his 
iatlier  to  Wells's  on  the  18tb  of  January  ;  and 
is  positive  to  his  taking  the  sign -irons  out  of 
the  wood  by  his  father's  orders,  and  returned 
the  woofi  to  Wells  in  about  three  or  four  days 
after.    The  next  witneas  is 

Elizabeth  Long,  who  is  one  of  Wells's  daugh- 
ters, and  lives  only  three  doors  from  her  mo- 
tlier,  and  used  to  go  there  every  day.  She  is 
very  certain  that  her  sister,  and  Virtue  Hall, 
and  Fortune  Natus  and  his  wife,  bred  at  her 
mother's  the  whole  month  of  January  1755. 
She  saya,  she  has  known  the  room  called  the 
workshop  above  twenty -two  years,  and  believes 
•be  went  into  it  almost  every  day  during  that 
whole  month.  She  is  very  positive  to  the  hay- 
bed,  the  chimney,  (in  which  there  was  no 
grate)  the  pollard,  and  the  rest  of  the  things 
mentioned  by  the  other  witnesses.  Swears  to 
the  pitcher  beiog  her  mother's ;  but  as  to  the 
bed-gown  and  bam  I  kerchief,  abe  never  saw 
them  till  she  saw  ihem  at  the  lord- may or'a. 
She  waa  in  the  parlour  at  her  mother's  when 
Canning  was  brouirht  in,  in  order  to  fix  on  the 
peraon  who  rol>bed  her,  and  gives  the  same 
account  of  her  behaviour  there  which  you  have 
beard  from  the  other  witnesses.  She  says,  she 
was  in  the  Old  Bailey  yard,  together  with 
Laroey  and  Knight,  when  her  mother  and 
Mary  Squires  were  tried ;  but  they  were  not 
suflTered  to  continue  there,  or  give  their  evi- 
dence.    The  next  is 

John  Uuwit,  who  married  Wells's  dauflfhter, 
and  is  very  positive  that  he  was  in  the  work- 
abop  on  the  19th,  90lh,  and  3Ut  of  January  I 
1753,  haviug  some  tools  there  which  he  had  • 
^cation  to  make  use  of ;  remembers  Fortune  ■ 
Katus  and  his  wife  lodging  there  at  that  time, 
but  never  saw  Canning  till  the  trial  of  Mary  ' 
Squires.      He  «^as  at  the  Old  Baili-y  at  the  ' 
lime  of  that  trial,  but  was  very  near  being 
killed  there  by  the  mob.  : 

Robert  White  is  called,  uho  very  well  re«  ; 
members  Fortune  Natus  and  his  wife  lodging  ! 
at  WelU's  about  the  time  you  hai'e  heard.  j 

The  next  |Hece  of  evidence  laid  before  you,  ! 
is  the  uio  lel  of  tliis  hay  -loft,  or  workshop  (to  ' 
•hew  you  that  it  is  not  a  little,  square  room, 
as  Canning  described  it  before  alderman  Chit- 
ty),  which  is  produced  by  John  Donovol,  who 
is  a  surveyor ;  and  it  appears  to  be  thirty-five 
feet  three  inches  long,  and  nine  feet  eight  inches 
over. 

Elizalieth  Alayle,  a  midwife,  is  called  next, 
who  sa>s,  that  in  the  beginning  of  February 
(being  a  few  days  after  £tiaabeth  Canning 
came  home)  she  went  to  make  her  motber  a 
visit,  and  seeing  Elizabeth  Canning  lying  on 
bar  bed  tberc,  wmI  to  ail  appMraoM  fwy 


ill,  and  enquiring  into  the  caoae  of  her  illncai, 
her  mother  told  her  the  condition  her  daughter 
came  home  in.  Elizabeth  Canning  tben  told 
her  the  whole  which  had  happened  to  her ; 
and  on  the  witness's  asking  her,  whether  abo 
bad  been  debauched  ?  ahe  answered.  That  abe 
bad  lost  her  senses,  or  was  in  fits,  and  ooold  naC 
tell.  Upon  which  she  enquired  for  the  shift 
ahe  came  home  in ;  and  upon  ita  being  pro* 
duced,  she  asked,  if  that  was  the  aliiftsbe  weal 
away  in  ?  and  upon  being  toM  it  was,  abe  ion- 
mediately  said,  that  she  supposed  it  bad  bean 
washed  since  it  came  home ;  but  the 
saying  it  had  not,shesaid,  she  tliought  it 
ed  a  good  deal  too  clean  to  have  been  worn  m 
long ;  for  it  waa  uncommonly  clean  for  an  kig 
wearing :  that  upon  looking  on  the  ahiC^  tkt 
assured  the  mother,  that  her  dangbter  liadMt 
been  debaueheil,  if  she  bad  worn  no  other  shA: 
but  she  says,  that  in  her  opioioD,  the  shift 
could  not  have  been  worn  three  weeb  ;  nay, 
thinks  that  a  week's  wear  would  have  mada  it 
as  dirty  as  it  then  appeared ;  for  it  waa  not  Iha 
least  dragglal.  That  there  were  only  tbiat 
Uttie  apots  upon  it,  which  appeared  to  bt  «!• 
crement.  She  aaid,  she  made  bar  a  km  t isiM 
afler,  and  ordered  her  a  glyster;  and  on  the 
last  visit  she  made  her,  she  mentioned  tbo  tbrat 
spots  on  her  shift,  aa  having  the  appearaace  if 
excrement;  at  which  her  mother  waa  vary 
angry,  and  toM  her,  that  abe  came  to  aat  btf 
friends  against  her.  On  being  asked  the  efaa* 
racter  of  Elizabeth  Canning,  ahe  gave  her  a 
very  good  one.    The  next  witness  is 

George  Brogden,  clerk  to  Mr.  Fiddiog,  aii 
be  ia  produced  only  to  prove  the  informatisa, 
which  she  swore  to  before'  Mr.  Fiekling,  ud 
to  which  she  set  her  mark :  and  by  that  inltr* 
mation  it  appears,  that  the  water  in  the  pitcbtf 
was  consumed  on  the  Friday  ;  but  in  bereri- 
dence  she  sweara  it  was  consumed  the  ssBl 
day  she  escape<l. 

Deputy  Molineux  is  called  next,  who  8wein» 
that  lieinV  with  sir  Crisp  Gascoyue,  then  lord 
mayor,  at  the  Mansion-house,  some  time  aAtf 
Mary  Squires  was  convicted,  that  Elizabelfc 
Canning  and  Virtue  Halt  were  there  together  i 
and  after  sir  Crisp  G.isco^ne  had  examiad 
Virtue  Hall,  he  asked  Elizabeth  Canuiog,  if 
she  hail  any  thing  to  say  P  who  answered 
No.  And  the  bed-gown  and  piiclier,  beiaf 
then  upon  the  table,  Elizabeth  Canning  irsi 
rolling  up  the  bed  gowu  in  orucr  to  take  it 
away.  My  lord  mayor  then  said,  she  niuiK 
not  take  it:  upon  which  Eiizabeih  Csooiaf 
aaid.  It  is  my  mother's.  This  surprizpd  tlM 
witness  very  much,  because  he  had  heard,  tbiti 
upon  the  trial  of  Mary  Si|uire8,  she  swoiVi 
tliat||&he  had  found  it  in  the  chinmey  at  Wells^ 
The  next  and  last  witness  is 

Mr.  Read,  who  swears,  that  be  was  prosit 
at  the  Mansion-house  at  the  same  time  w\udk 
the  last  witness  mentions,  and  remembers  iba 
several  circumstancea  mentioned  by  hiss,  tf 
aforesaid. 

Here  concludes  the  ofidetico  giviB  in  Mf 
port  of  this  indictment 


Jf3/f  Wilful  and  Corrupt  Pcrjutif. 


A.  D.  1754* 


[654 


The  counsel  for  the  defetidarit  huve  made 
baoy  otiservatioiis  upon  th«  widciice  yon  have 
■feurd,  which  it  i»  untvpCFssary  far  rac  \n  repeat ; 
pi  opmi  Ibe  iivhole,  insist  iipi>D  it,  I  bat  as  tliia 
■alter  h^%  undei  ^oni*  u  ? ery  jitrict  exaininitioii 
f  a  nolrron  trial,  that  th«?rftlbre  any  fiilure 
iqutry  is  iioprfcedenieil,  and  coosrqufiMly 
|ipro|>er:  lio»»evrr,  in  order  in  oppose  or 
Ititradict  a  good  «leai  of  the  evidence  yon  have 
iready  heard,  tliey  have  called  sevei'al  wit- 
latei }  the  firi^t  of  whom  ii 
Edward  Lyon,  who  sayi,  that  Elizabeth 
taotiinjit  was  his  serrant^  and  coniioiied  \n  his 
jrfice  till  ihtf  1st  of  Janii»ry  1753  ;  that  he 
IS  known  Elizalieth  Cannin|^  above  tixteen 
ftarSf  and  thai  she  alvrnys  behaved  well  ;  that 
k«  6r8l  time  he  missed^  her  was  on  the  Isi  ot 
Inuary  1753,  aufi  that  slie  never  itart  been 
bent  before ;  upon  wl^ich  he  wetii  to  her 
KMber^^i  but  could  hear  nuttiin^  of  her.  The 
Kl  time  he  saiv  her  aher  that  uas  upon  the 
1st  of  the  same  month,  when  she  waa  omler 
lacniiiatton  before  alderman  Chilty  ;  but  be> 
^  thick  of  hearioiT,  tlid  not  kjiow  whiit  hnd 
issed.  He  lays,  ihnt  a  warrant  beinsj  g-ranted, 
t  went  lo  En6ehl'Wush,  with  Hague,  Noah, 
lid  Aldriilf^e,  When  they  arrived  there, 
^  waa  told,  that  several  persons  were  aecnretl 
\  We  lis*  I ;  ant  I  nbtn  he  came  lo  Wells's  he 
|W  several  wninen  in  llir  purtour  there.  That 
\me  time  afterward  Eh/.abeih~  Canninv  ar- 
ted  there,  and  was  bCt  upon  Ihedrr-sKer  in  the 
llcben.  lie  says,  be  ciuttoned  her  very 
hrticularly  not  to  4^hjir(re  any  hut  those  she 
u  very  sure  of.  She  premised  him  she 
ttllld  not.  Hiie  vva*t  s<ion  niterwards  carried 
1^  the  parlour,  where  they  all  were,  8he 
fm  Mrs,  \\^\\%  first,  and  said,  slic  had  notbinyf 
\  charge  herviitb:  but  upon  seeing*  Mary 
k|Uire9,  ahe  said,  hiie  was  ihe  woman  wlio  cut 
m  stays  off.  He  believes  she  saw  her  face 
efuTP  she  charged  her 'f be i*auae  otherwise  he 
links  she  bardly   wonJd  have  cbarg-ed  her). 

Kthis,  Mary  Squires  carue  up  to  her,  and 
ibe  hoped  she  would  not  swear  her  life 
,  for  Kite  never  saw  her  before:  but  says, 
Eliztiheth  Cannings  did  not  at  that  time 
nentjon  the  day  upon  which  she  was  robbed 
&lie  said  that  Lucy  Sqnires  and  Virtue  Hall 
frere  in  the  room  at  the  same  time  she  was 
totibed ;  and  that  w  hen  she  saw  Ge[irg^e  Squires, 
rfj*  laid,  he  looked  very  like  the  man  who 
hibled  her  in  Moorfielda;  hot  she  would  not 
Near  to  him.  At  this  time  he  had  no  great 
tett  ou;  but  when  he  was  with  his  g^reat  coat 
>•  at  Mr.  Tashmuker's,  she  was  more  posiiive 
^  biiu^ifayiti^»  thai  was  the  great-coat,  mider 
'"ich  he  put  hei' gown  wlieu  he  robbed  her 
^  MooiOeldy.  He  said,  for  bis  gart,  he  never 
**'  any  doubt  of  the  truth  of  what  Canning 
'*i  «worn  at  ihe  trial  of  Wary  l!!$4iuii  es  ;  and 
^y«,  that  he  several  times,  and  with  the  ut 
^<>«t  fcrioosofsi,  ilesired  Elizabeth  Cannintj 
^^Hld  tell  the  troth ^  and  not  deceive  him  ;  and 
'^nmbni  tliis  nfffiir  hns  h«  en  ibe  means  of  his 
Joking  olf  his  Be4uainfance  with  Nash, 
3«f  ue^  aud  Aldhd!i;«.    He  deniei  hit  CQCtri- 


hnting  any  thinfr  towards  the  prowctitioii  of 
ftlnry  Squires.    Ttie  next  witness  is 

Thomas  Cotley^  who  married  Elizabeth  CaiH 
uiot^'B  aunt ;  arsd  he  ^ays,  ihai  upon  the  Isi  of 
January  1733.  ElfZuheth  Can iiiu>^  dined  at  hit 
house  upon  mutton,  and  drank  ten  in  ibe  sfier* 
noon,  eat  toast  and  butter,  end  suppeil  upon 
colli  roa'^t  beef.  8be  hvt!d  at  thai  time  with  Mr. 
Lytm,  and  that  he  and  his  wife  went  with  her 
at  nine  o^clock  that  nig^ht,  and  left  her  at  thtt 
end  of  HoQudsdirrh  ;  aud  about  twelve  o'clock 
at  night  her  mntber'a  ap|»renlice  came  to  hfs 
house,  to  enquire  for  Elizabeth  Canning, 
which  made  hun  conclude  the  did  not  get 
home. 

His  wife,  Mrs.  Colley,  \%  called  next,  who 
gives  the  same  ace outi I  thai  her  husband  haa, 
with  this  addition,  that  she  did  not  see  her 
from  Ibe  Isi  of  January  till  the  MUh,  wheti 
Elijenbetb  Canning  was  at  her  umiher's^  and 
complained  she  was  very  ill.  The  next  wil- 
uesit  is 

EUrabeth  Canning,  the  mother  of  the  defen- 
daot^  wbo  savsi  that  her  daughler  had  been 
aomc  time  in  fclr.  Lyon's  aerrice,  ami  thai,  uuon 
Ibe  1st  of  January,  1763,  she  called  upon  her 
in  her  way  to  her  uncle  Colley's;  and  that 
pretty  iate  ihat  etcning  Mr.  Lyon  called  upon 
her,  to  enquire  for  her  daughter.  This  sur- 
prized her  a  good  deal ;  upon  which  she  sent 
ioColiey's,  who  sent  her  i^ord,  tlml  they  had 
parted  with  her  at  iloundsditch  at  nine  that 
liight :  and  &aya,  Uiat  i-be  never  heard  o\\  or 
saw  her  from  that  time  till  the  ntgbt  before  th« 
30 1 h  of  January,  when  she  came  lo  her  house 
nhout  a  quarter  after  ten  that  tii^bt  (tbuugh 
she  advertised  her  t^iree  several  limes).  8hc 
say  a,  that  when  she  came  into  her  bouse  sbs 
wa»  in  a  most  deplorable  condition,  ber  hnnds 
black  aud  blue,  aud  her  face  bloated,  had  on 
ibe  bed-gown  now  producetJ,  and  two  ragged 
handkerchiefs  on  her  bead»  neither  of  which 
she  had  ever  seen  Itefore  ;  her  ear  was  bloodj  ; 
that  she  sent  for  Mrs.  Woodward  and  some 
other  ueighhourSf  who  came  to  her ;  and  on  her 
daughter's  being  asked,  where  she  had  been  ? 
she  answered,  she  could  not  tell,  but  had  seen 
the  Hertford  coach  from  the  place  where  she 
was.  8hetaid,  tliat  she  remembered  an  old 
woman  and  two  young  women.  She  gave  an 
account  of  her  being  robbed,  and  earned  away^ 
anil  her  confinement ;  and  said,  she  ha<l  no* 
thing  at  all  lo  support  her  from  the  Friday  be- 
fore she  made  her  escape,  8he  gives  au  ac- 
count of  her  daughter's  illness,  and  that  ahe 
sent  for  a  physician  aud  an  apothecary.  She 
remembers  th'ut  her  daughter,  on  the  night  »h« 
came  home,  meniioued  the  name  of  Wells  ot 
Wills.  She  mentions  ihe  money  her  daughter 
had  in  her  pocket  at  the  time  of  her  going  tn 
Col  ley,  which  1  think  was  between  I  weirs 
and  thirteen  shillinga.  She  saya  farther,  that 
during  her  daughter*!  absence,  she  was  advised 
to  go  to  %  conjurer,  who  bid  her  be  easy,  for 
•he  woulil  certainly  come  home  again,  ami  be- 
lieves he  told  her  she  was  in  the  hands  of  su 
old  woroaa  ;  bnt  loyi,  that  bar  «wb  ipprebiHl* 


655] 


27  GEORGE  U. 


Tfjs/  nf  Elizabeth  Camingt 


[656 


stoDS  were,  that  she  was  murdered  by  the 
,  Jews,  and  thrown  into  Houndsditcb.  8be 
says,  that  she  told  her  she  la^  in  hay  during^ 
her  confinenient ;  that  she  has  only  a  ?ery  mo- 
derate stomach,  and  has  known  her  frequently 
to  be  fourteen  days  without  going  to  stool. 
Upon  this  witness's  being  asked  whether  she 
did  not  swear,  at  the  trial  of  Mary  Squires,  that 
her  daughter  had  a  cap  on  her  head  when 
she  came  home  ?  she  answered,  she  did  not ; 
but  upon  the  short- hand  writer's  being  asked 
that  question,  his  answer  was,  that  she  did,  at 
that  trial,  swear,  that  her  daughter  bad  a  capon 
her  bead  at  that  time.  At  this  time  some  no- 
tices were  produced,  and  proved  to  be  signed 
by  the  defendant,  signifying  her  intention  to 
take  her  trial  at  some  of  the  times  mentioned  in 
some  or  one  of  those  notices,  sod  her  name 
wrote  in  s  rery  legible  hand ;  though  in  the 
information  before  Mr.  Fielding,  nothing 
more  appears  but  her  mark.  After  this,  s 
witness  is  called,  who  speaks  only  to  the  several 
advertisements  in  the  news-papers.  The  next 
witness  is 

James  Lord,  (who  is  apprentice  to  Elizabeth 
Canning's  mother^  who  agrees  as  to  the  time 
of  her  being  missmg,  and  was  sent  to  several 
places  to  enquire  for  her ;  but  be  did  not  see 
her  from  the  Ist  to  the  29th  of  January  1753 ; 
and  on  that  very  night  his  mistress  went  upon 
her  knees,  to  pray  Siat  she  might  see  even  the 
apparition  of  her  daughter ;  and  very  soon  af- 
terwards the  latch  of  the  door  was  lifted  up, 
and  Elizabeth  Canning  came  in.  When  he 
first  saw  her,  he  did  not  know  her,  she  was  in 
such  a  miserable  condition,  much  the  same  as 
'  her  mother  has  mentioned,  and  particularly 
her  ear  bleeding  fresh,  (though  she  had  then 
walked  ten  miles)  and  was  almost  spent  He 
went  for  Mrs.  Woodward,  and  others  of  the 
neighbours  ;  and  she  then  told  them,  that  she 
had  been  at  Mrs.  Wells's  at  Enfield- Wash, 
snd  said,  that  she  had  heard  people  go*  to  and 
fro  in  the  house,  and  mention  the  name  of 
Wells  or  Wills.    Then 

Robert  Scarrat  is  called,  who  says,  that 
hearing,  on  the  29th  of  January,  1753,  that 
Elizabeth  Canning  was  come  home  late  that 
night,  he  went  to  her  mother's,  late  as  it  was, 
to  see  her.  8he  had  a  bed-gown  on  her ;  and 
having  heard  her  asked  where  she  had  been, 
snd  hearing  her  answer,  that  she  had  been  at  a 
place  from  whence  she  had  seen  the  Hertford 
cx>achman,  and  about  nine  or  ten  miles  from 
London,  he  immediately  said,  he  would  lay  a 
guinea  to  a  farthing  that  he  t^oessed  where 
she  had  been ;  and  then  said,  be  was  sure  she 
had  been  at  mother  WelU*s  ;  upon  which  she 
said,  she  was  sure  she  had  heard  that  name 
mentioned  in  the  house  where  she  was  con- 
fined. 8lie  then  described  the  room  to  be  a 
longish  and  darkish  room  (which  does  not  agree 
with  her  description  of  it  before  the  alderman). 
She  then  described  the  fields  through  \%hich 
she  passed  in  her  return  home,  a  little  hro«)k, 
and  a  tanner's  yard  ;  said  that  she  met  a  man 
vho  directed  her  in  her  road  to  London  ;  and 


described  the  woman  who  cut  her  stays  to  be  i 
tall,  swarthy,  black  woman,  and  two  yoan^ 
women  in  the  room  at  the  same  time.  He 
says,  that  he  went  to  Enfield- Wash  the  lit  of 
February,  and  was  present  when  Eliiabedi 
Canning  was  brought  into  the  parlour,  antlstv 
her  poiiit  to  Mary  Squires,  saying,  That  is  the 
woman  who  cut  my  stavs  off;  upon  wbich 
Mary  Squires  said.  Dear  Bladam.  take  care  bow 
you  swear  my  precious  life  away ;  to  which 
Elizabeth  Canning  said,  I  know  won  too  wdl, 
to  my  sorrow.  And  on  being  awed  wbdhcr 
she  knew  any  other  in  the  parlour^  she  lud^ 
that  she  did  not  know  Geprge  Squires  $  bt 
that  Lucy  Squires  snd  Virtue  Hall  were  ia  Ikt 
room  when  her  sta^s  were  cut  off.  He  M^ 
that  she  mentioned  some  of  the  things  lU 
were  in  the  room  she  was  coDfioed  ii^vl 
pointed  to  the  window  out  of  whiek  Ai 
escaped.  Upon  his  cross- ezsiiiinatioo«  bsflgii 
he  never  was  in  the  workshop  at  Welb%  A 
this  1st  of  February ;  but  owns  (with  hm 
difficulty)  that  he  might  have  beeo  io  the  bsM 
near  ten  times,  and  that  he  has  knowD  Wdh 
for  shout  three  or  four  yesrs.  He  Mys,  link 
he  heard  Canning  give  her  informatisn  Mra 
alderman  Chitty,  4nd  heard  her  give  eridesos 
at  xhe  trial  of  Mary  Squires,  and  thsdn  that 
her  evidence  on  the  trial  did  not  van  fiem  her 
information  before  the  alderman  ;  hot  will  Mt 
take  upon  him  to  give  an  account  of  the  piili- 
culars  of  her  evidence  before  the  atdsnnu.  He 
owns,  that  when  he  was  in  service,  at  EdnMsHib 
that  he  rode  his  roaster's  hones  to  Weib^; 
'but  disowns  his  haviug  any  quarrel  with  bs^ 
or  saying  that  he  would  l>e  revenged  oo  her. 
And  savs,  that  he  believes  there  was  no  loek 
on  the  iloor  of  the  room  called  the  woriBiko|t 
The  next  is 

Mary  Myers,  who  says,  that  she  hss  koows , 
Mrs.  Canning  and  her  daughter  some  tine,  tad 
that  the  daughter  is  a  very  sober  girl.  She 
gives  an  account  of  the  time  when  Elizibelh 
Canning  was  missing,  and  of  her  return  to  her 
mother's  between  ten  and  eleven  o'clock  at 
night  on  the  U9th  of  January.  She  telUjfoa 
the  company  she  saw  there,  and  the  oooditioa 
she  was  in,  which  waa  very  bad.  8be  sajs, 
that  she  gave  the  same  account  of  her  beuf 
robbed  in  Moorfields,  and  her  being  earned  to 
Wells's,  and  of  her  treatment  there,  which  yea 
have  already  heard,  and  is  much  the  same  ae* 
count  which  she  gave  at  the  trial  of  Mary 
Squires:  that  she  then  gave  a  particular  ic* 
count  of  her  escape,  which  you  have  ab0 
heard;  and  that  she  tore  her  ear,  snd  tbo 
blood  dropped  upon  her  shouMer  after  she  re* 
turned  to  her  mother's.  This  witness  sajs, 
that  she  went  with  Canning  to  Wells's  on  the 
iKt  of  February,  and  gives  you  an  account  of 
her  fixing  on  Mary  Smiires  as  the  person  wht 
robbed  her,  and  what  Mary  Squires  thensadi 
as  is  before  mentioned  by  tlie  other  witnenei 
then  present ;  that  she  hxed  on  the  workshop 
as  the  place  of  her  confinement;  Imt  m% 
there  was  at  that  time  more  hsy  ia  it ;  sad 
that  Adamsoo  put  his  back  against  OM  of  thi 


657]  fit  Wilful  and  Corrupt  Perjunj.  A.  D.  17i14#  [659 

wtiKlowf!  there,  to  try  if  she  could  g-ive  hq  ac-  \  This  is  the  room  I  was  confined  in, 


conittfirihe  {troFtpect ;  which  she  iticl,  hy  tie- 
scrihingf  hills  at  a  ilinlancc.  8he  says,  that  she 
JfH)k^d  at  CanniDg^s  iihifti  and  thai  it  wa^  diii y. 
Cannot  tell  the  reason  of  Stsarrars  Imn^  at 


He  wan 

present  when  Adanison  ac^t  hts  hack  to  one  of» 

ilie  windo.vs  of  the  room,  and  examined  her«^ 

tihout  the  pros p<;ct;    and  f^ayi^,  that  the  norlb^ 

w  indfur  seemed  to  be  t'resli  bimriled  up.     ThatH 


Mrs.  Canniiig^fi  tbe  nrg^ht  her  dau^j^hter  came  ^  wlieu  he  ob«er?c!il  Ceorge  i!M]UM es  in  the  par< 


koine;    but  says,  he  lived  in  thai  neighboiu* 
liooiL     The  next  niiue«sifi} 

Mrs,  Woodward,  iiho  says,  thai  she  wiia  at 
Mrs«  Canntng's  the  nightthat  Elisitabeth  Can* 
nifig*  cafue  home^i  and  waa  the  firal  ppr!i<on  thai 
came  there.  She  came  home  about  hair  an 
hour  past  teiif  the  99th  of  January^  on  Mun^ 
day  >*t  nii^h»»  and  saw  Scarrataml  WintleLury 
tlitfre  ;  and  at  Elizahelh  Cnnidng'fi  rrquest,  ahe 
seat  fiir  her  imister  aud  mi(lrt'>»s  Lyou,  iind 
that  Klixiiheth  Caunme  suid  to  the  wilaesa, 
Ob  t  Mri^.  H  uodw'Hril,  I  hare  bnt^n  almost 
starved ;  1  have  had  only  hread  nud  trater, 
'ADd  have  not  had  even  \vater  ftinre  bni  Friday. 
'6be  was  asked  ivhere  she  hait  heLUi  utid  said 
ahe  had  been  ennfmed  in  a  room  on  the  Ilcrl- 
Ibrd  rond.  She  then  g:ave  a  very  particular  ac- 
v#iunt  of  her  being  roWjed,  and  of  ihe  trratmenl 
the  met  with  from  h\^t^  ^mve%  tit  Wells^£«  |  C 
and  of  iter  Uein^^  conlin^^d  llic^re*  8he  ag^rces  h 
with  Ihe  01  her  witnesses  in  the  uc  count  I  hey 
gave  of  the  deplorable  condition  jihe  urai  iu, 
aod  helteveii  her  id  be  as  ill  m  she  then  appear- 
ed to  be.  That  she  went  with  Elizalieth  Can- 
Qtng  to  EtifKhl-VVnsh  on  Thursday  the  Isi  of 
February  ;  and  upon  Tuesday  aticr  ihat,  she 
waa  «o  ill,  they  were  forced  to  put  her  in  a 
chair,  to  carry  her  to  Mr*  Fiulding's.  The 
next  ititnoij^  is 

John  VVinllehury,  vfbo  was  known  to  Elista* 
bcth  Canoiog^s  motlier  alniut  fomieen  or  tif- 
leen  years.  He  siiys,  vhe  Ia  a  very  lionent 
woman  t  and  that  her  daughter  EHzaheUi  livcil 
with  him  116  a  servant  abtiut  eii^hteen  months  ; 
that  he  saw  her  the  ni^ht  she  carne  home, 
wlieti  she  wad  h\  a  very  bad  ronditicini  and 
bad  nothing  Kin  but  a  bed  gfuvn,  and  a  piece 
of  a  hiiiidkerchief  upon  her  head  ;  that  her 
ear  was  bloody ;  that  upon  taking-  Ikt  by  the 
band,  t»he  sajij,  Lord  !  Sir,  you  do  not  know 
what  I  have  undergone;  that  then  she  gave 
an  ttccouui  where  ^he  had  been,  by  seeitijv  the 
Hertford  silat^e  coachmau:  thai  he  was  with 
her  when  she  gjive  her  information  hctbre 
ahlerman  Ctiitty,  but  cannot  be  particular  as 
ill  whut  pusited  there:  that  he  went  on  tlie  1st 
of  Fehrnary  to  WcUs^s  at  Enfield- Wanh*  and 
went  into  the  room  called  the  workshop,  ami 
otuserved  a  good  deal  of  hay  there,  which  ap- 
peared to  he  fresh  lossed  up ;  and  say  a,  he 
arrived  there  at  leaiit  an  hour  before  Afdridge, 
Hague,  or  Nash:  ibiit  njion  Klizabelh  Can- 
niniir's  bein^  carried  into  tfie  parlour,  ahe  HxchI 
upon,  and  charijed  Mar)'  8quireS|  aa  the  per- 
aou  whu  cut  her  stays  off;  to  which  Mary 
Si^uires  made  no  answer  ;  bu»,  on  the  contrary, 
ilctiies  that  Mary  Squires  even  desirod  her  not 
to  fiwear  her  life  away  (which  i^a  cireumstnuce 
Ihe  other  wilDeases  have  very  porticutarly 
Bworn  tu) :  that  when  Elizabeth  Cunning  saw 
the  door  of  the   workshop  opened,  sht  iMiid, 

VOL.  XIX. 


lour,  Elizahelh  Canniof^  ihnuul't  he  was  veryt^ 
like  one  of  tire  men  wlio  rohhed  her  in  Moor- 
Hetds  ;    and  amonfj  n^hl  or  uine  women  thpii, 
in  ihe  parlour^  the  ftx^d  ujion  Virtue  liafl  and* 
Lucy  Squires^  as  being  present  when  her  staya^j 
were  cut  off.     He  says,  he  cannot  be  so  par-*^ 
tirular  as  to  the  account  she  gave  before  alder^i* 
man  Cbitty,  as  to  that  which  she  gave  before- 
Mr  Tashmaker  ;    and  thinks  Ihal  the  accouni* 
she  gave  before  Mr.  Tashniaker  corresponded-  < 
exactly  with  the  evidence  she  gave  at  the  trial* 
of  Mary  Squires,  llpcm  his  cro&{i-examinaiioti,'| 
he  owntty  he  did  noigiveso  parliculur  an  ac-*»  | 
conm  at  the  trial  uf  Mary  Stpdre^  aa  he  does^l 
now  ;    and  says,  he   took  hiile  observation  ol?^ 
the  evidence  given  by   her  before  ahlertnanH 
Chitty.     The  witness  rulled  next  is  nk 

Jo!»eph  Adaiusdti,  who  has  known  Elizahetb^] 
Vinning  for  eleven   yrar:* ;    but  had  not  seett*  | 
her  tor  three  months  idl  he  Wfiut  to  meet  hen  J 
^oing  to  Entleld'Wasih.     He  denies  liitt  giving 
lier  any  information  of  there  being  any  hay  int  I 
the  ruom  ;  hut  that  she  of  her  own  accord  -^ald;  ] 
iherewafi.     That  when  she  was  taken  into  the* 
parlour,  she  fixed  upon  Mary  Squiresfiis  the' j 
pertton  who  cut  uti*  her  H\\\ys  ;    anti  when  she 
was  curried  into  the  workshop,  she  said  the* 
eaj^r  window  W£is  fjJtened  up,  and  ^he  cuutd 
nut  iqien  il ;  arul  that  he  made  the  exjierijuenl 
by  i^elting  his  back  to  the   window^  to  know 
whether  lihe  couhl  give  any   accouni  of  the 
[»i  ospect ;     and    he   observed    that  the   woful: 
which  covered  the  north  window  ieemeJ  to  be;  J 
lrej»h  cracked.     The  next  witness  is 

Sutherioii    Dukler,  a|iothecary,  who  aaya, 
that  he  saw  Elizabeth  Canning  on  the  30th  ol^l 
Junuary  ;    that  she  was  in  bed,  and  in  a  veryil 
hvw  condition  ;  that  lie  administered  some  mo.] 
dicines  io  her,  being  glystera  ;    and  then  Dr. 
Eaton,  a  physician,  was  sent  for  ;    but  before^ 
lite  medicines  which  the  doctor  prescribed  had. 
any  eflecl,  she  went  tu  Enfield  Wash,  whtcb^l 
was  on  the   1st  of  February.      He  says,  ahe'j 
appeared  to  be  half-starved,  aufl   she  did  qoI, 
make  water  till   after  the  6th  uf    Fybruary.fi 
Aud  then  they  call  if 

lir.  Eaton»  who  says,  that  he  alteoded  Eli-t  J 
zaheth  Canning  on  the  6lh  of  February,  that  f 
lie  found  her  very  weak,  and  that  she  com^^l 
plamed  of  a  colic  in  her  stomach  and  bowels;;^  j 
li>at  he  thought  her  iu  danger  seven  or  eighti  j 
days,  hut  upon  the  4th  of  March  she  wa«( 
qinle  recovered;  and  thought  the  .<«ymptoma,j 
of  her  illness  proceeded  from  hunger,  thiret»J 
cold,  andgreat  hardships  ;  though  hesaya,  thatj 
her  disorder  migrht  have  proceeded  from  other. 
cau$es,  and  thinks  she  had  a  had  habit  or  body*- ' 
The  next  witness  is 

Robert  lleals,  who,  upon  the  1st  of  January  ^ 
1753,  kepi  the  turnpike  on  Stamford- hill,  which 
leads  fi-om  Moortields  to  £ntkld  \    whu  cayn^ 

a  U 


859]  27  GEORGE  U. 

that  he  was  Terv  ill  the  Christmas  before ; 
and  that  the  February  follow! ngf,  his  two 
cbildreD,  which  are  very  young,  (not  abofe 
eight  or  nine  yean  old)  told  him,  that  a  wo- 
man had  been  forced  away  from  MoorBelda  to 
EnAeld-Waah,  and  had  been  confined  there 
above  a  month  ;  upon  which  he  said,  Lord !  1 
was  at  the  gate  when  she  was  carried  through ; 
and  says,  that  about  ten  't>r  eleven  o'clock  at 
niffht,  the  beginning  of  January,  he  beard  a 
sobliing  sort  of  a  cry  about  three  hundred 
yards  distant  from  him;  that  there  appeared 
to  him  to  be  two  men  and  a  woman ;  that  they 
did  not  come  through  the  gatCf'but  as  they 
were  going  over  the  stile,  heard  one  of  the 
men  say,  Come,  along,  you  bitch,  you  are 
drunk ;  and  the  woman  seeming  very  unwill- 
ing to  go  over  the  stile,  one  of  the  men  attempt- 
ing to  iii\  her  over,  she  fell  down,  and  cned 
bitterly,  but  never  spoke ;  one  of  them  held 
her,  and  the  other  pushed  her  along.  She  ap- 
peared to  be  a  woman  in  great  distress,  and 
sobbed  and  cried  bitterly ;  but,  notwithstanding 
this  distress,  be  never  mentioned  it  for  above 
six  weeks ;  and  he  says,  he  durst  not  venture 
to  stop  the  two  men,  because  he  was  alone. 
He  cannot  take  upon  him  particularly  to  say, 
that  this  was  upon  New-year's  day  ;  but  sa^s, 
the  fqrown  the  woman  then  wore  was  white, 
though  he  says  there  was  no  moon  that  night. 
The  next  witness  is 

Thomas  Bennet,  who  lives  at  Enfield,  oppo- 
site to  the  ten  mite  stone ;  and  he  says,  tnat 
upon  the  S9th  of  January,  comini;  towards 
li9ndun  between  four  and  five  o'clock  iu  the 
afternoon,  he  met  a  ivoman,  who  appeared 
miserably  poor,  at  a  gate- way  between  \V right's 
and  Jeoge's,  about  a  quarter  of  a  mile  on  this 
side  Mrs.  Wells's;  that  she  had  neither  gown, 
stays,  cap,  or  hat  on  ;  that  she  enquired  the 
way  to  London,  which  he  directed  her:  he 
remembers  it  by  a  circumstnnce  of  binding  an 
apprentice  that  day ;  but  savs,  that  he  never 
nientiooed  this  till  tho  March  Vol  lowing. 

David  Over  is  called  next,  who  says,  that 
aliout  the  same  time  he  met  a  poor  distressed 
creature,  and  asked  her,  if  she  wanted  a  hus- 
band .'  and  looking  upon  the  defendant,  be- 
lieves her  to  be  the  same  person  ;  that  he  saw 
her  about  four  of  the  clock  in  the  atWrnnon. 
She  did  not  appear  black  in  the  face,  or  at  all 
bruised  ;  but,  on  the  cuutrary,  «ery  pale  and 
thin.    Then  they  call 

Mary  Cobb,  who  says,  that  about  three 
miles  tin  this  side  \Veiis*s,  in  a  field  calletl 
Duck<-fitld.  just  at  tlio  shuttiiii;  in  of  day- 
light on  the  ^oih  of  J;M:-iarY,  she  met  a  nj- 
niaii  in  a  niisorablo  i'(itiiliUi*n.  diT$sed  in  a  pour 
dirty  beil  gonn.  a  black  p^Mlic^lat,  and  a  :it  of 
a  handkerchief  on  her  iicad,  uho  was  near 
failing  ns  she  was  gcuing  u«cr  a  stile:  that 
some  time  atteruards,  hearinir  of  this  ali'air, 
and  reenllerting  tiie  |»er«on  she  had  so  met, 
she  ciMicludeil  that  she  mu»t  be  Klizaketb 
CanuiUbT ;  and  now  n|ion  looking  at  her  more 
minuiel\ .  beheres  it  was  her ;  i\vr  she  iheu  ob- 
teiTcd  •uDwibiiig  particular  about  tba  tip  of 


Trial  of  Elizabeth  Cannlngf 


[MO 


her  nose,  by  which  she  is  more  certain  of  bfr 
now ;  that  justice  Tashmaker  asked  ber  abMit 
this  affair,  to  whom  she  gave  the  mbio  ac* 
count  she  now  does.    The  next  witness  it 

William  Howard,  who  is  produced  in  oidet 
to  shew,  that  the  witness  Alilridge  had  ones  a 
different  opinion  of  Elizabeth  Canning  to  thit 
which  he  has  now  disclosed  in  his  evidcMs. 
He  says,  that  Aldridge  and  his  brother,  aKltle 
time  alter  Mary  Squires  was  taken  up,  broagbt 
him  the  Case  of  •  Elizabeth  Canniugt  and  i^ 
commended  her  as  an  object  of  oompiBM, 
and  proposed  a  subscription  to  support  htr; 
and  that  he  came  to  him  a  second  tioae  oa  lb 
same  subject ;  but  when  he  came  the  mmi 
time,  he  said,  that  the  girl  (meaning  EliaM 
Canning)  was  not  so  clear  in  her  deacriptairf 
the  room  where  she  said  she  was  conflnL 
Tlien 

Mrs.  Howard,  his  wife,  is  called,  and  en- 
firms  what  her  husband  has  said  aa  It  Al- 
dridge's  desiring  him  to  subscribe.  She  Jhm 
opposite  to  Wells's,  and  believes  that  ilw  Mr 
Mary  Squires  pass  and  repass  several  linfi  ■ 
the  month  of  January ;  and  thinks  that  ibs 
saw  Mary  Squires  and  her  family  at  WdM 
door  the  Sunday  se'nnight  before  (bcyirae 
taken  op,  and  believes  her  to  be  the  naoMi  at- 
man  now  in  court.  She  owns  that  she  m  tkmh 
sighted,  and  that  Mary  Squires  and  her  ft- 
mily  might  be  fifty  vards  distance  flaui  htf, 
when  she  first  saw  them  ;  but  she  thinks  tbi 
she  has  seen  them  pass  by  her  house  wilfcii 
the  distance  of  thirty  yards.  The  next  vil' 
ness  is 

William  Headland,  who  says,  that  Is  Hn 
best  of  his  memory,  he  was  with  his  fidkr 
(who  lives  at  £nfield-W ash)  some  timebcHm 
January   was  twelve- month,  and  was  tbcis 
uhen  Wells  and  the  rest  were  taken  up;  lad 
says,  that  he  took  a  piece  of  lead  up,  wbidi 
lay  under  the  window  front  whence  Elizabeth 
Canning  escaiied :  it  was  bloody,  and  he  bfsri 
that  it  was  the  lead  which  tore  herear  whci 
she  escaped.     He  cannot  tell  the  exact  day  be 
took  it  up,  but  he  gave  it  to  his  mother.    He 
s&ys,  that  he  saw  3iary  Squires  the  9th  of  Ja- 
nuary at  Enfield-Wash,  telling  fortunes;  sod 
also  saw  her  there  on  the  12th,  doing  of  tbe 
same;  and  her  two  daughters  were  with  ber 
at  Wells's ;  remembers  it  by  its  being  market- 
'  day.     He  saw  her  get  into  the  cart  when  the 
i  was  taken  away,  and  saw  her  in  court,  and  be- 
lieres  her  to  be'the  same  woman  he  eaw  tberr. 
He  s  ^vs,  that  he  is  twenty-one  years  oM ;  bat 
thougli  ho  is  so  particular  in  bis  account  ef 
JIary  Siiuircs,  &c.  he  gives  but  a  very  «■■ 
certain  account  of  himself:  for  he  canicaics 
^if  at  ail)  give  an  account  with  whom  be  hie 
,  lived  forsevtral  months  fiast  l»efore  he  retursc' 
j  to  hi>  f.u her  ;  nciiher  can  he  tell  us  in  whit 
I  niontit  (Uiristmas  is^  be  says  indeed,  tbstht 
lived  wiih  one  Allen,  as  an' hired  senrant,!* 
;  or  eleven  weeks. 

Kli/ahtth  Headland,  the  last  witnen's  0^ 
ther,  is  called,  who  only  proves,  that  bcri* 
gave  bar  the  piaca  of  lead  at  or  a  linii  iA* 
4 


061] 


for  Wxljkd  and  Corrupt  Perjury. 


A.  D.  MBit. 


[668 


the  time  thfit  Mury  Hquires  and  the  rest  were 
lAkcii  up,  anil  ihe  Dlimd  ud  tt  was  <lry  ;  but  she 
bas  uow  Jost  or  mtsluid  it.  The  next  wUiies*i  is 
Samuel  Slorr»  who  (upon  lcM>kirj|{  at  Mary 
Squires)  says,  iliat  lie  kno^vs  ber  ir^ry  well,  and 
has  seen  her  several  lim^s^  aoil  particularly  at 
m  bouse  in  Wliite-VVelibs-lane,  near  EntieUl- 
Chace;  and  that  he  saw  her  ou  Ihe  23d  of 
December  1752,  at  WetlB*8  door;  anil  says, 
that  his  curiosity  led  biiu  lo  see  if  she  was  the 
mme  woman  he  hatt  seen  l^efore,  uud  therefore 
he  went  within  ten  yards  of  her,  and  thinks 
lier  the  same  ;  and  afier wards  went  to  see  her 
in  Newgate,  and  is  still  of  Ihe  same  opinion  ; 
mud  fiaySf  that  he  has  occEisionally  seen  her  for 
tbree  years  tog^elher,  but  neirer  spoke  to  her. 
He  says,  that  he  has  seen  two  yoting  women 
with  her,  and  that  they  all  used  to  wear 
Maokets,  and  trarel  with  two  asses  and  a  Itttle 
harse.    Then 

William  Smith  is  called,  who  lives  at  En- 
fieid,  and  is  a  considerable  farmer  there.  He 
«iys»  thai  he  saw  Mary  S(|uires  in  bis  cow- 
liouse  on  the  15th  of  December  1752,  and  has 
seen  ber  and  her  family  about  the  coimtry  te- 
Tcrat  limes.  Tbey  came  at  that  time  tu  en- 
quire for  a  lodging.  He  saw  Mary  Squires 
.next  moroin^,  and  there  were  two  youuBT  ^^^ 
mod  two  yiamg'  women  with  her,  whom  lie 
cannot  remember  They  by  in  his  barn^  and 
vp^re  there  three  nig  bis  and  two  duySf  and  bad  a 
Itltl^  black  borse  with  them,  wliich  ibey  le^t. 
He  afterwards  saw  her  Id  New^te,  and  is  po- 
mtire  to  her,  Ule  is  positive  that  be  saw  her 
tl»e  15th  of  Decern  ber,  because  he  sold  some 
euro  on  the  IGih.     The  witness  calletl  next  is 

Loomworib  Dane,  who  keeps  the  Bell  at 
BoliehMVash,  nnd  says,  that  he  never  saw 
Mtry  l^uires  till  winter  was  twelve- month  ; 
and  that  upon  CIM  Christmas  day,  which  was 
the  5lb  ot'  January,  as  be  was  standing'  on  a 
heap  of  gravel,  he  is  sure  he  saw  her  at  Kn- 
Aeki-Wasb  ;  for  bis  servant  having  a  boliday 
thftt  day,  be  kept  shop ;  and  one  Norton  bought 
a  collar  of  him  for  his  borse,  which  he  entered 
lA  bis  hook,  (which  book  is  not  produced)  and 
that  is  the  I'eaton  which  he  gives  of  bis  remem- 
bering  the  time.  He  saw  her  when  taken  up 
And  put  into  the  carl,  and  also  in  Newgate,  and 
is  sure  she  is  the  same  woman.  He  is  asked 
mboat  Mrs.  Headland's  character,  (whose  evi- 
dence you  have  heard)  which,  he  says,  is  not  a 
¥ery  good  one.    The  next  vtiincss  is 

Haniuel  A  root,  who  is  a  labourer,  and  lives 
on  Enfield  Chace,  and  Kays,  that  upon  a  Fri* 
day,  abdul  nine  or  ten  days  before  New  Christ- 
mils,  Mary  Squires  asked  him  (telling  him  her 
Mme)  far  a  little  brown  borse  which  she  had 
last;  and  says,  th!it  he  saw  ber  the  Sunday 
ftfber,  and  that  a  man,  two  women^  and  two 
children  were  with  ber,  which  children  were 
not  above  four  or  five  yeartiold,  and  helKelieves 
tbey  all  lay  al  Willium  Hmitb'f ;  that  he  ufter 
wards  snw  Mary  Squires  in  Newgale,  and  is 
fif  opinion  that  she  is  the  same  be  ibeu  saw. 
Then  «hey  call 

£Uzabetb  Arnot,  wife  to  the  last  witness, 


who  say^^  that  she  saw  Mary  Squires  in  farmer 
Smith's  cow-house  at  Enfield,  alKiut  a  week 
htifnre  New  Christmas,  and  that  she  then  in- 
quired about  her  horse,  which  she  had  lost,  and 
that  she  saw  her  afterwanls  in  Ntwgale.  The 
next  is 

Sarah  Star,  who  lives  next  door  to  Wells^s, 
and  says^  that  she  saw  Mary  Squires  at  her 
own  bouse  on  the  ifiih  of  January  was  twelve- 
month, but  had  never  seen  her  before :  that  she 
then  offered  to  mend  china,  and  stayed  at  her 
house  three  <piarters  of  an  liour,  and  wanted  to 
tell  her  and  her  servants  their  fortunes,  and 
terrified  ber  very  much.  She  afterwards  sair 
her  in  the  cart  when  taken  up,  and  in  Newgate, 
and  believes  her  the  same  person*  She  be- 
lieves she  saw  her  on  the  18th  of  January,  be- 
cause she  thinks  her  husband  sold  a  load  of 
pease  that  day,  and  Ibattheie  was  a  note  givea 
on  that  account ;  but  that  note  has  not  been 
produced.     Then 

Daniel  Vass  is  called,  who  sa^'S,  that  be  saw 
Mary  Squires  go  by  his  house  near  Enfield 
on  Old  Christmas  day  ;  she  went  the  foot- 
way, and  he  was  then  in  bis  own  yard  ;  be 
looked  pretty  much  at  her,  and  she  seemed 
surprised  at  his  doing  so.  He  did  not  look  at 
her  above  a  minute,  and  never  saw  her  before  ; 
but  he  went  to  her  when  in  Newgate,  thnugli 
in  a  different  dress  ;  yet  is  sure  she  is  the  same 
person  be  saw  go  by  his  yard*     The  next  is 

Jane  Dad  well,  who  keeps  a  shop  at  Enfield, 
ivho  sayst  that  she  saw  Msry  Squires  at  her 
bouse  on  Thursday  tlie  tiJBlh  of  Decern  ber  | 
knew  her  very  welf,  tor  she  had  been  there 
several  limes  before  %  \^  |iai  ticular  in  that  day, 
because  she  dressed  meal  on  Christmas  duiy  lor 
ber  customers,  and  she  was  then  in  her  back- 
bouse  washing  ber  dtsbe's.  She  went  to  see 
her  in  Newgale,  when  she  owned  that  she  had 
been  at  her  shop.    The  next  called  is 

Tobias  Kellog,  who  lives  at  Enfield,  and 
says,  that  be  saw  Mary  Squires  at  Enfield  some 
time  before  Old  Christmas  (though  he  is  so 
ignorant,  that  he  cannot  tell  on  whtttday  of  the 
month  Old  Chris! mas  day  was;)  but  says,  he 
believes  be  saw  ht-r  there  a  month  before  she 
was  taken  up ;  be  thinks  that  he  saw  ber  three 
or  four  times ;  that  she  asked  him  for  tobacco^ 
and  wot) Id  have  tohl  him  his  fortune  ;  and  that 
she  told  one  John  liovvley  his  fortune.  Then 
one 

John  Ernme  is  called,  tvbo,  in  January  was 
twelvemonth,  hved  as  a  servaot  with  Mr.  Pjr- 
fions  in  James*s-strcet,  Grosvenor  square,  who 
had  &  country-house  at  Enfield  ;  and  being  at 
ipork  in  the  gardens  there  on  the  lUh  or  12tli 
of  January  was  twelvemonth,  Mary  Squires 
spoke  to  him  through  the  pahsofloes,  and 
wanted  to  tell  him  hi^i  fortune,  which  she  told  , 
hiiii :  he  is  positive  to  ctie  time,  because  hi$ 
mat^ter  and  mistress  went  to  Lnudon  on  Ihe  dtU 
uf  that  month  ;  ami  says,  that  he  saw  her 
about  a  twelvemonth  before  at  En  Held,  and 
saw  her  in  Newgale,  and  tbiuks  ber  the  same 
person.    The  next  is 

Joseph   Gould]  who  hrea  mt  £nfield,  aod 


663]  27  GEORGE  U. 

says,  that  he  saw  Marj  Squires  on  the  8th  or 
Otli  of  January  1753.  about  a  quarter  of  a  mile 
from  Wells'ii ;  and  hearing  from  Viriue  Hall 
that  there  were  i^ypsiea  at  Wells's,  he  took 
particular  nutioe  ot'hor;  and  he  saw  her  after- 
wanlH  in  Newgate.    Then 

Mary  Gould,  his  wife,  is  called,  who  says, 
that  she  saw  Mary  Squires  the  11th  or  IStli  of 
January  was  twelvemonth,  who  asked  her,  if 
she  had  an^  china  to  mend,  and  told  her  she 
would  not  life  long.  She  says,  she  saw  her 
about  a  week  before  she  was  taken  up,  and  saw 
her  Hfhen  she  (the  witness)  was  at  work  at  Mr. 
Parsons's ;  and  also  saw. her  in  Newgfate,  and 
believes  her  the  same.    The  next  witness  is 

Humphrey  Holding^,  who  says,  that  the  first 
lime  he  saw  Mary  Squires  was  on  the  8th  of 
January  1753  ;  that  lie  is  a  gardener,  and  was 
at  work  at  Mr.  Parsons's,  and  that  the  family 
went  to  I^ondon  on  the  0th  of  January  ;  and 
thai  he  saw  Mary  Squires  the  day  before,  who 
asking  him  if  the  family  were  at  home,  he  an- 
awereil,  that  they  were  ;  and  says,  that  he  saw 
her  afterwards  on  the  1 1th,  when  he  was  prun- 
ing Dr.  Harrington*s  vines,  and  he  set  down  his 
day's  work  in  a  book,  because  he  was  not  paid 
lor  it.  She  also  inquired  if  the  family  had  any 
china  to  mend.  He  is  desired  to  produce  his 
book,  which  he  had  not  about  him ;  and  says, 
that  he  was  examined  two  or  three  times,  but 
could  not  possibly  recollect  the  time  of  seeing 
her,  because  he  had  not  his  book  wherein  he 
sets  down  his  %vork.  He  says,  that  he  saw  her 
at  Mr.  Tashmaker's,  and  in  Newgate.    Then 

Sarah  Vass,  wife  of  Daniel  Tass,  a  former 
witness,  is  called,  who  was  a  charwoman  at 
Mr.  Parsons's,  and  saw  Mary  Squires  on  Thurs- 
day the  11th  of  January  1753:  she  fixes  on 
that  day,  because  Mr.  Parsons  went  to  London 
on  the  9tli,  which  was  on  Tuesday  ;  and  that 
she  would  have  told  her  her  fortune.  She  also 
saw  her  passing  by  the  day  before  she  was 
taken  up ;  she  then  asked  her  tor  a  pipe  of 
tobacco,  and  had  then  some  conversation  with 
her;  and  afterwards  saw  her  in  Newgate,  and 
is  certain  she  is  the  same  person.  The  next 
witness  (whose  evidence  is  something  parti- 
cular) is 

Anne  Johnson,  who  has  lived  at  Enfield 
some  years,  and  gets  her  living  principally  by 
spinning.  She  says,  that  she  saw  Mary  Squires 
ou  the  ICth  of  January  1753,  at  her  door. 
The  reason  of  her  fixing  upon  that  day  is,  he- 
cause  she  spins  for  one  Mr.  Smitheram,  and 
swears  that  she  carried  her  work  to  him  two 
days  before  she  saw  her  (which  was  the  16th.) 
8he  says,  that  she  saw  Mary  Squires  three 
several  times  before  that,  and  in  the  compass 
of  ten  or  eleven  days ;  and  afterwards  saw  her 
in  Newgate.  This  witness  has  also  told  you, 
that  when  her  work  was  given  her  to  do  by* Mr. 
Smitheram,  and  also  when  she  carried  it  to  him 
after  it  was  done,  that  it  was  entered  into  a 
book  kept  by  Mr.  Smitheram,  or  by  some  of  his 
/•mily,  for  that  purpose.  It  was  therefore 
thought  proper  to  call  Mr.  Smithenun,  and  to 
^mtfim  WMthcr  a  book  wif  kept  for  thai  pni^ 


Trial  of  Elizabeth  Camnngf 


[664 


pose ;  and  he  tells  you,  that  he  did  employ  the 
witness  Anne  Johnson  in  the  busioess  she  has 
mentioned  ;  and  be  produces  a  book,  in  which 
are  two  columns,  in  one  of  which  is  entered  the 
yarn  which  he  dehvera  out,  and  in  the  other, 
that  which  he  receives  after  it  is  spun;  and 
upon  producing  that  book,  it  is  observable,  thst 
it  is  entered,  that  on  January  the  16th  one 
pound  of  yarn  is  delivered  to  Anne  Johnson  to 
lie  spun ;  and  in  the  second  column  in  the 
same  book,  one  pound  of  yam  is  entered  to  be 
returned  on  January  the  23d,  by  the  samepow 
son,  Anne  Johnson,  who  spun  it ;  ao  that  it  ii 
impossible  (if  credit  is  to  be  given  to  this  hoik, 
to  which  she  herself  refers)  that  she  could  hvi 
seen  Mary  Squires  on  the  18th  of  Janwnr; 
because  she  did  not  carry  home  her  wotkoi 
appears  by  the  book)  till  the  23d  of  that  moatt; 
which  is  an  observation  ^ou  will  think  worthy 
your  notice,  and  especially  as  this  is  the  oshf 
written  evidence  referred  to  by  the  defimdaan 
witnesses  which  has  been  produced.  Tbej 
then  call 

Wise,  the  wife  of  John  Basset,  who  sayi^ 
that  she  saw  Mary  Squires  at  EnfieM-Wsdi 
on  the  21st  or  22<l  of  January  1753,  and  fs- 
members  it  by  a  circumstance  of  killing  a  bog, 
and  of  a  servant's  leaving  her  service  at  that 
time ;  that  she  saw  her  in  her  own  honse,  and 
gave  her  a  penny  to  tell  her  fortune.  She  av 
her  afterwards  in  Newgate ;  and  upon  a  ( 
yersation  with  Mary  Squires  there,  ab 
ing  her,  Mary  Squires  told  her,  she 
her.    The  next  is 

James  Pratt,  who  says,  that  he  eaw  Nsnr 
Squires,  a  man,  two  women,  and  aome  cUN 
dreu,  in  farmer  Smith's  cow-house,  abonttbnc 
days  before  New  Christmas,  as  near  as  been 
rememl)er,  where  they  continued  about  thise 
days ;  and  that  Mary  Squires  then  complaiaed 
of  the  loss  of  her  horse.    Then  they  call 

Lydia  Farruway,  who  was  a  servant  to  Mr. 
Howard  at  £nfiel(f-Wash,  and  she  says,  thtf 
she  saw  Blary  Squires  there  upon  the  Toesdiy 
se'noiglit  before  she  was  taken  up,  and  rO" 
memti^rs  it  by  this  circumstance,  that  she  wsi 
on  that  day  making  pyesfor  her  young  master^ 
birth -day  ;  and  saw  her  afterwards  in  New- 
gate, and  thinks  she  can  be  certain  to  her.  Tbe 
next  is 

Margaret  Richardson,  who  says,  that  ibe 
saw  Mary  Squires  at  Enfield  last  January  wef 
twelvemonth,  in  a  chandler's  shop  there,  ui 
sUyed  with  her  a  quarter  of  an  hoar,  and  Wt 
her  in  the  shop ;  and  she  also  saw  her  on  OM 
Christmas  day ;  remembers  it,  because  herdsf 
was  going  to  lay  hold  oh  her,  which  her  boa- 
banil  nrcvciitfrd.  She  appears  to  be  very  igao* 
rant ;  for,  beinfif  asked  in  what  month  Cbrii^ 
mas  is,  she  says,  she  does  not  know.     Thea 

(Jeorife  Clements  is  called,  who  is  servHl 
to  Mr.  Star  at  Eofiild,  and  says,  that  he  m0 
Mary  S(|uires  there  a  fortnight  before  abeiMl 
taken  up,  and  that  she  wanted  to  tell  his  jai*' 
tress  her  fortune,  which  frighted  her;  ^ 
says,  that  he  saw  her  two  or  three  days  aM 
hot  oabodj  was  with  her  ailhar  of  tbt  !■•* 


6C5] 


fuT  Wilful  and  Comtpt  Perpiry, 


A.  D.  1754.. 


[668 


He  aftervFards  saw  lier  and  knew  her  iti  New- 
^te,  anil  she  asked,  wtiat  harm  liad  she  done 
lum  ?  Tl]c  next  is 

Hun  nail  KenNliam,  wlio  sa^s,  that  she  saw 
Mary  Sqiijre!i  alone  at  a  place  near  Enfield  od 
the  Itifh  of  January  1753,  and  saw  her  several 
limes  afterwards  [tassin^  and  repassrng;  and 
>aw  lier  afterwards  b  Nenrg^ate* 

Elunheth  Sherrard  is  the  next,  and  she  says, 
I  that  she  saw  Mary  H(}nire«  at  VVtfltn^a  on  Wed- 
^«liesday,  Thur<iday,  Friday^  and  Saturday  next 
►beimv  New  Chrifiimas ;  uod  saya,  that  she  saw 
a  youni^  man  and  \wq  women  wuh  lier,  wivicK 
»be  believe^i  to  he  her  son  and  daug-hlers.  Nhe 
appears  very  ignorant,  at>d  can  scain^e  ^re  an 
account  at  what  season  ol  the  year  Chrjutmas 
ifl.     The  next  witness  is 

John  Ward,  {who  is  prodncett  in  ordei*  to 
firove  a  conlVi^sion  inado  hy  Susannah  Wellu, 
at  ihe  time  of  her  cnnfinement  in  Bridewell, 
before  F<he  and  SVlary  Sfjuire^  were  trit^)  m  ho 
says,  itiHt  he  weot  to  ^ee  her  in  Bridewell ; 
Vpoo  her  tihewini^  some  surprise  at  seeinsr  him, 
lie  told  her«  that  he  saw  her  name  in  the  news, 
and  then  asked  her,  huw  she  came  to  keep  the 
Itirl  a  fortnight  ?  8he,  upon  Chat,  said,  she  wns 
Ihei^  twenty -eight  day*.  He  then  asked  lier^ 
what  room  !>he  waa  iu  ?  Her  answer  was,  that 
lie  knew  the  room  very  well  (though  he  saySt 
that  he  hiid  not  seen  it  tor  twelve  years  Uefore.) 
You  will  consider  iu  what  light  this  evidence 
appears  ;  for,  as  it  is  laid  before  you  hy  the  ile- 
leodant  to  prove  Wells's  confession  oi'the  fact 
charged  upon  her,  the  question  is,  whether  it 
can  have  that  effect  ?  And  in  nrder  to  deter- 
mioe  that,  you  will  observe,  he  tells  her,  that 
the  reasou  of  his  visit  was,  beenu^ie  he  saw  her 
» name  in  the  news-papers^  and  ihen  a^ked  her, 
how  she  came  to  keep  the  girl  a  fortnight  ? 
Upon  which  she  said,  it  ivaa  twenty -eight  days. 
Now  it  is  very  uoturious^  that  the  account 
.which  the  defemlaat  herself  gave  of  her  can- 
finement,  as  weil  as  the  account  given  of  it  in 
the  Dews^papevs,  was  twenty- eight  days;  an 
that  you  will  take  it  into  your  consideration ^ 
whether  you  will  believe  thii>  to  be  a  confession^ 
or  whether  she  spoke  from  the  news-papers,  in 
order  to  rectify  the  witness's  mistake  iu  charg- 
tDGT  her  with  conlining  the  girl  (us  he  then 
c^led  the  dtrfendant)  a  fortnight,  when  it  ap- 
peared bv  ihe  news^papers  to  be  twenty-eight 
dftys.     Then 

Richard  Jones  is  called,  who  was  with  the 
last  witness  to  see  VVells  in  Bridewell,  and 
agrees  with  him  as  to  the  conversution  whicli 
pasaeil  rf  laling[  to  the  defendaut's  conGuement 
ifi  the  terms  you  have  heard.  The  next  wit* 
aesses  they  call,  are 

Nathuoiel  Crumphorne,  and  Elizabeth  his 
wij'e;  and  mey  are  produced  to  prove  a  con- 
versation between  those  wUnesge«  and  Judith 
_the  wife  of  Fortune  Natus,  relating  to  the  pre* 
«ent  defendant,  which  seems  very  extra ordi- 
jiary  ;  tor  iney  tell  you»  tlmt  ujKin  the  21st  of 
April  last,  Juanh  Natu^^  was  at  their  huuse, 
and  that  Nathaniel  Crumphorne  said  to  her, 
Jii«l  18  ahe  kitefr  that  Eiiciibeih  Camiiug^  was 


at  W>lls*s,  how  could  she  go  against  her?  And 
that  the  answer  she  made  was,  Indeed,  Mr. 
CrumphorQe,  I  cannot  aay  but  she  realty  was 
there  when  we  lodged  there,  1  mention  this 
B9  a  very  extraordinary  piece  of  evidence;  l)e- 
canse,ii  what  is  sworn  by  this  evidence  is  true, 
the  consequence  must  necessaiily  be,  that  not 
onTy  this  Judith  Natus  and  her  husband,  but 
many  witnesses,  whose  evidence  \  have  already 
staled  to  you  relating  to  that  fact  of  her  beings 
(here,  mint  be  absolutely  and  wilfully  perjgred. 
The  next  is 

Paul  Stevens,  w  ho  is  called  to  prove  a  con- 
fession which  he  says  ^lary  Squires  made 
in  New  Prison,  arnl  there  he  says,  that  Mary 
Squires  owned  she  had  been  at  Wells'^  *  fhul 
at  the  same  time  said,  that  she  neither  cut 
the  defentlant^a  stays  otf,  or  robbed  her ;  but 
said,  that  Betty  Canning  was  at  Wells's  about 
a  tbrtnighl  and  three  days,  and  that  she  ivas 
there  at  the  ^uie  time,  Now  this,  as  well  us 
all  other  cuiifes&ions,  must  be  taken  intlre;  and 
if  so,  it  i»  cert  II  in  that  Mary  8r[uires  disouai 
the  nibbery,  though  slie  owns  (if  i^he  made  this 
confession)  that  Betty  Canning  was  at  Wells's 
at  the  time  she  was  there.  This  confessioti 
aUo  (if  she  made  it)  must  appear  something 
wonderful,  when  you  consider  the  former  evi- 
dence. 

Then,  in  order  to  discredit  Fortune  Natuf, 
they  call  three  witnesses,  viz.  Joseph  Haines, 
Paul  Chapman,  and  Thomas  Green,  The  first 
of  them  says,  that  he  has  in  general  a  had  cha^ 
racier :  the  second  says,  that  both  he  and  his 
wife  haie  hut  lery  inrliflerent  characters,  and 
ought  not  to  he  believed  upon  oath  ;  but  it 
seems  that  there  has  been  some  difference  be- 
tween Chapman  and  him  about  a  note;  and 
the  last  %vitness  says,  that  he  believes  Fortune 
Natus  would  swear  any  tUiug  for  hire.  Then, 
to  discredit  Ezra  \Vhimn,they  have  called 

William  Metcatf,wbo  is  a  glazier  and  paititer, 
and  be  says^  that  upon  the  8th  of  Jauuaiy ,  Old 
Stile,  which  is  the  19ih  New  Stile,  Whtffin 
having  employed  him  to  paiut  his  sigu,  it  was 
brought  hume  that  day,  and  then  the  witnest 
told  Whifiiu,  that  Mrs.  Wells  had  got  her  sign- 
irons  to  sell ;  and  therefore  concludes,  that  if 
Whiiiu  had  bought  her  sign -irons  on  the  ]8thp 
which  he  swore  he  did  (which  was  the  day  be* 
fore)  he  would  naturally  have  told  him  so. 
Upon  his  cross-examination,  he  tells  you,  that 
he  remembers  this  circumstance  hy  an  entry 
in  a  book,  a  copy  of  which  he  produced  ;  but 
he  owns,  that  the  Ogures  1755  iu  that  copy 
were  wrote  so  late  as  last  Saturday*  Now  to  es- 
tablish the  characters  ol  Whifiin  and  Fortuue 
Natus,  the  couusel  for  th«  king  have  called 
some  witnesses.    The  6r8t  is 

J\lr.  Sraitheram  (who  ha^s  been  called  before), 
who  says,  that  he  has  knowu  W biffin  ft  year 
attd  a  half,  and  that  his  general  character  is  a 
very  ^ood  one,  and  that  he  does  not  believe  ho 
would  forswear  hituself.    Then 

Mr.  Barnes  and  Mr.  Smart  are  called,  wha 
both  have  known  him  between  three  and  four 
yeari|  aud  agree  in  giving  him  the  character  0f 


667J 


27  GEORGE  11. 


Trial  ofEUxaheth  Cannings 


[m 


m  Tery  honest  man.  As  to  Fortune  Natni's 
cbafacter^ 

Tliomu  Bell  is  called,  who  says,  that  he  has 
worked  for  him  about  fifVeen  months,  and  that 
he  has  always  behaved  honestly  and  viell,  and 
does  not  believe  he  would  be  ffnilty  of  per- 
jury ;  and  says  further,  that  hebas  eight  ser- 
vants, and  does  not  think  he  has  so  good  a  ser- 
Taut,  or  one  he  values  so  much  as  he  does 
Fortune  Natus. 

I  have  now  laid  before  yon  the  evidence 

S'ven  both  on  one  side  and  the  other,  with  all 
e  exactness  1  have  been  able ;  and  as  the 
Terdict  ]jrou  are  to  give  is  attended  with  great 
czpectatiOD,  you  will  weigh  and  consider  the 
evidence  you  have  heard  with  the  utmost  care 
and  impartialitjr,  and  not  suffer  Yourselves  to 
be  influenced  either  by  popular  clamour,  or  by 
any  apprehensions  of  the  consequence  of  doing 
the  public  and  yourselves  that  justice  which  is 
expected  from  you.  It  is  certain  that  this  trial 
has  been  carried  on  by  different  sets  of  people, 
who  have  interested  themselves  in  it  with  un- 
common xeal,  and  whose  passions  have  led 
them  into  the  greatest  extremities,  as  well  as 
the  highest  extravagancies,  according  to  the 
part  they  have  supported,  which  has  drawn  it 
into  an  unusual  length,  and  has  given  it  the 
appearance  of  greater  intricacy  and  difficulty 
than  otherwise  it  could  have  met  with.  As 
you  have  heard  all  the  witnesses  examined 
with  the  utmost  accuracy,  and  carefuMy  at- 
tended to  their  evidence ;  your  verdict  will,  at 
least  it  ought,  to  give  a  general  satisfaction,  in 
clearing  up  those  doubts  which  this  extraor- 
dinary affair  has  occasioned. 

I  believe  there  never  hsppened  a  greater 
contrarietj^  of  evidence  (not  to  give  it  a  worse 
name)  during  the  course  of  any  trial,  than  there 
has  in  this:  however,  it  is  generally  so  ordered 
by  Providence,  that  truth  is  attended  with  so 
strong  a  connection,  anti  such  an  invincible 
uniformity,  that  it  seldom,  if  ever,  fails  in 
having  its  due  weight. 

It  may  not  be  amiss  just  shortly  to  recapitu- 
late, and  take  a  view  of  the  evidence  as  it  has 
been  given,  and  how  it  has  been  applied. 

The  first  fact,  they,  who  are  concerned  for 
the  prosecution,  undertake  to  prove,  is,  that 
Mary  inquires,  her  son  and  daughter,  were, 
upon  the  29tb  of  December,  at  a' place  called 
South- Parrot  in  Dorsetshire;  and  that  she 
nnd  they  travelled  from  thence  through  Ab< 
botsburv  (where  they  stayed  from  Monday  the 
1st  of  Jianuary  to  the  Tuesday  se'nnigbt  fol- 
lowing), then  arrived  at  Wells's  on  Wednesday 
the  24th  of  that  month;  and  their  whole 
journey  through  the  several  connties  they 
passed,  proved  hy  ihirty-eiuht  different  wit- 
nesses, confirmed  by  many  circumstances,  who 
don't  appear  to  have  the  least  correspondence 
together,  or  to  act  in  concert  on  this  occasion  ; 
but,  00  the  contrary,  most  of  them  utter 
strangers  to  each  other. 

You  will  then  compare  Elizabeth  Canning's 
information  before  alderman  Chitty,  with  the 
ef  idence  ihe  gave  at  the  trial  of  Mary  Squirea, 


as  to  her  description  of  the  room,  aa  weU  ■ 
the  account  she  gave  of  what  was  in  it,  and 
consider  how,  and  in  what  partieolars,  riM 
differed.  Then  the  principlea  opon  which 
Nash,  Aldridge,  and  Hague  went  upon ;  Int 
in  giving  her  credit,  and  then  in  disbettemr 
her  whole  story  after  they  had  takea  •  view  si 
the  room,  and  considered  the  difierent  aoeoaili 
she  gave,  as  well  as  their  opinion  how  csaly 
she  might  have  escaped,  if  she  had  been  tbm. 
There  is  another  very  remarkable  oiicdiimihh^ 
which  you  must  remember  ia  proved  by  km 
witnesses,  I  mean  that  of  loppings  the  few 
which  grew  at  the  window  oif  the  roea  ^ 
swears  herself  confined  in,  which  WM  taiM 
Monday  the  8th  of  January,  at  which  tiM^ 
swore  herself  in  that  room.  There  ii  im 
8omethin|r  very  particular  as  to  the 
had  on,  in  which  ahe  swore  she  wv , 
season  of  the  year,  dragged  to  Weils%  wk 
worn  twenty-nine  days.  Besidea  tUi^'tar 
setting  her  mark  only  to  the  infbnaalioa^ 
gave  before  Mr.  Fielding,  and  writieg  hff 
name  in  a  fair  legible  hand  to  the  vtHoKmikt 
gave  of  taking  her  trial.  And  added  lo  al  Ihi^ 
her  attempting  to  take  away  the  bed^eve  at 
the  time  of  her  being  at  the  then  loH-MTorX 
insisting  upon  its  being  her  mother's.  Wbfi 
you  have  laid  this  evidence  togethv,  mA 
weighed  it  with  proper  attention,  yoa  wiU  Iki 
take  her  defence  into  your  consideratioe,  ari 
determine  whether  she  has  answered  tbecrias 
with  which  she  is  charged  to  your  latisfsuliw 
In  the  first  place,  yon  will  conaider,  wbcte 
the  evidence  she  gave  against  Mary  Sqsuv 
can  possibly  be  true ;  and  in  the  next  plMC, 
whether  you  think  it  probable.  Aa  to  the  M^ 
there  is  no  sort  of  evidence  even  to  assist  ]fii 
in  determining  whether  it  is  possible  for  hoMi 
nature  to  subsist  for  twenty-nine  daya  tt^gellMr 
upon  no  more  than  a  quartern- loaf,  sad  i 
pitcher  of  water  of  the  size  too  have  aesa.  V 
you  should  think  this  possible,  yon  will  tb« 
take  the  probability  of  tier  detenoe  into  eoai* 
deration.  Her  roaster  Lyon  tells  yon,  tbsthi 
differed  from  the  rest  of  his  compaiiioos  ehs 
went  with  him  to  Enfield,  and  that,  for  Wi 

Kart,  he  had  no  doubt  of  the  truth  of  whstris 
ad  sworn ;  and  many  other  witnesses  she  k* 
called  are  of  the  same  opinion,  for  the  reaHtf 
you  have  heard  them  give.  Then  her  matbtfi 
and  the  neighbours  whom  she  sent  for  upli 
her  daughter's  return,  have  described  herdroii 
and  have  given  you  an  account  of  the  miseriMt 
wretched  condition  she  was  then  in,  aa  wcHv 
the  account  she  then  gave  of  her  confineoe^ 
and  the  place  where  sliewas.  The  evidciii 
of  Deals,  who  kept  the  turnpike  at  Slamiffd' 
hill,  is  very  observable,  whoaays,  that  he  bs* 
lieves  Elizabeth  Canning  was  dragged  tbrsqgh 
the  turnpike  on  the  1st  of  January  ;  yetHT^ 
that  be  never  spoke  of  it  till  six  weeks  sAiff 
and  then  closes  this  part  of  her  defence  «ii 
the  evidence  of  three  witnesaea,  who  setV 
that  they  n»et  her  on  the  road  (aa  they  belicfi) 
on  her  return  from  Enfield-Waeh.  Aei  iM 
to  induce  you  to  believe 


1 


Jbr  Wilfid  and  Corrupt  Perjury, 


A.  D.  1754^ 


[870 


\tkm  fienoa  of  Marv  Squires,  Trom 

*  the  met  with  this  sefei-e  and 

iient«  ibe  bts  called  tvi^enly-seveti 

,  wbo  Jifl  iweaff  that  Lhey  saw  Mary 

uid   about   Eufield  in   the  months 

tiber  Qnd  January  ^   whicb^  if  irua, 

bt  iivjineeseSf  who  poiitivcly  Bwear  t« 

mher  placCT,  must  be  wilfulfy 

ynu  must  remember,  that  some 

\  twenty -seven  witncssea  buTe  ap- 

I  writif  II  eviijerice^  surh  a^  entries  in 

^«f  which  (as  i  recollect)  have  bt'cn 

"^    ept  lliat  i«f  Ninitheramt  which 

hy  Auoe  John&on,  by  which  it 

how  greatly  ahe  was  niis- 

and  it  is  very  rezoarka- 

«re  not  two  uf  thviie  tt«ifuiy' 

vvho  can  snear  they  saw  her 

^  time.    And  last  of  all,  you  wiU 

c<inieMioo9  of  Weill  atjd  Mary 

lhey  were  in  custody;  and  what 

%\in  Maid  a  few  days  a^o  telatint*^  (o 

\  which  I  made  such  obiservatioos 

ed  to  me. 

ntlemen,  the  whole  rests  for  your 

and  as  it  is  very  obaertable 

attended  to  the  evidence  with 

tp[»lication,  and  your  characters 

will  not  sorter  you  to  deviate 

lIIis  of  truth  and  justire,  1  ran  make 

L  thui  ynu  will  acqtiii  ynurBelveit  a« 

h  therefore  you  ar^of  opinion 

fi'^ndant  is  :;uiUy  of  this  peij(iry«  you 

T  «a ;  if  inniM:eDtt  yon  will  ucr|uit  her. 

withdrew  at  twenty  uWnntes  nf\er 
clock  iti  the  luorniog  to  cotisi<ter  of 
klict,  and  returned  at  fifteen  miuntes 
,  Qod  brought  in  their  verdict,  Guilty 

Ivtil  lint  wilful    ViuA  i'rirrupt,* 

lam,  "That 

'1  J,  because  it 

ttnd  they  must  either  find  her 

whole  indictment,  or  else  aci^uit 

|%rlilch  they  w^re  sent  out. again  at 
ive  rqimUe^  after  two,  and  returned  at 
ine  minutes  after  two;  and  brouj^ht  in 
GuiJty  of  Wilful  and  Corrupt 

I  fthe  was  committed  by  the  Court 
djr  *if  the  keeper  of  Newgate. 


I  Blonday  foUowtn^^  the  13th  of  May, 

f called  to  the  bur,  in  order  to  receive 

when   her  frnrnxel  delivered  into 

1  two  of  the  jurymen,  Mr. 

I       KU99iell,  setting  forth  that  the 

M  ^i^Kn  not  accordinj^  to  iheir  coo- 

vhich  were  read. 

tbich  Mr.  Manning,  the  foreman  of 
ras  sent  for  by  the  Court,  and  asked 

[in  ibe  Duchess  of  Kington *a  Casei 
I,  tiM  isifwer  of  the  duke  of  New- 
I  Cilled  upon  for  his  verdict. 


bow  this  matter  wia?  who  jjrare  the  folbwing' 
account  Imw  they  were  divided. 

The  Foreman  then  act)uuintei1  the  Court, 
•That  all  of  them,  hot  those  two,  were  of, 
opimon  she  wag  guilty  ot  the  whole  iiidictmrnl| 
but  the  said  two  did  not  ihittk  she  wns  vtdfully' 
guilty,  yet  nevertlieless  thr>ut;h>  she  wani^uil'* 
t)  ;  hut  lieljcving  ^omubuily  iiail  seductHl  ibtt 
girl,  and  forged  thestorv,  i^'r  her  to  tell  and 
stand  by  (in  short,  they  all  believed  so) :  and 
u|>on  such  belief  lhey  found,  aud  gQ\e  their 
venJict,  Guilty,  but  not  wilful:  but  were  tn« 
formeiJ  by  the  Recorder,  that  he  could  nol 
take  that  verdict,  fur  they  must  either  ac4|uii 
her,  or  else  ^d  her  guilty  of  the  whoJe  m^ 
dictment. 

*^  That   wheji    they  withdrew  to   consider 
again  of  the  charge,  the  said  two  men  declared  ^ 
they  could  not  come  in  to  liitd  her  guilty  of  \ 
the  whole  indictment;    but  u|»on  arguing  the 
cast*  with  ihem,  and  telling  them  they  tinigbt^ 
as   well  find   her  guihy  of  the  whole  indict* 
menty  they  said,  they  could  not  agree  to  it^ 
unless  the  reiit  of  the  jury  would  consent  to 
recommend  her  tu  the  Court  for  rnercy.     That 
then  they  all  agreed  to  find  her  guilty  of  the 
whole  iuilictment;  which  they  all  agreed  she 
^as  guilty  of  before,  except  the  said  two  ;  and 
accordingly  gave  in  iheir  verdict,  Guilty  of  ' 
Wilful  and  Corrupt  Perjury.** 

Upon  which  the  prisoner's  counsel  insisted 
upon  a  new  trial,  which  tlie  Court  would  not 
agree  lo.^ — The  Court  were  divided,  aud  the 
liecordcr  rend  the  act  of  parliament  concern- 
ing tlie  crimti  of  perjury,  wherein  it  empowers 
the  Court  to  sentence  the  parlies  found  guilty^ 
of  the  said  crime, —  Ber  connael  still  in bisiteit 
it  was  law,  and  that  they  had  a  right  to  a  nevr 
trial,  and  quoted  the  Case  of  Ashley  and  Simooi 
the  Jew,*  whore  the  jurymen  made  affidavits,  ^ 
that  the  verdict  reconled  was  by  mistake,  and 
was  not  what  they  meant  or  intended  to  brjn^  \ 
in,  and  thereupon  a  new  trial  was  granted;  and 
farther,  that  they  had  something  to  offer  in  ar* 
rest  of  judgment. 

Then  the  Reconler  said, — ^^  As  this  esse  is 
so  much  become  a  pftHy  affair,  (which  I  am 
sorry  to  see)  I  had  rather  put  it  oif  till  next 
E»essions,  that  it  may  be  argued  before  the  same 
judges  that  t<ied  her,  who  may  come  ilowti 
neirt  sessionB  on  pnrpote/'  7'hen  the  Court' 
agreed  to  put  it  off  till  the  6r8t  day  of  next 
sessions,  which  began  May  dO,  1754.  f 


*  8^e  it  at  the  end  of  this  article. 

f  Alter  the  C'ourt  had  deferred  giving  sen* 
(encetill  the  following  sessions,  the  irieridn  of^ 
Elizabeth  Canning  drew  up  the  following  Uue 
rie9|  and  laid  them  before  couniceL 

Queries  proposed  to  Solijom  Emlyn,  esq.coun-  j 
sellor  at  law,  (Editor  of  Hale^s  IMeas  of  J 
the  Crown,  folio,  and  of  a  former  CditioQ^ 
of  this  Work,  to  which  see  his  admiriJitt , 
Preface,  fol.  1,  p.  xzii.) 

QtiEtiv  I.    *  Is  not  Elisabeth  Canning  snr- 
*  reudering  herself  voluntanly^  when  she  bad 


•71} 


27  GEORGE  II. 


"    Trial  of  Elizabeth  Camdngf 


[67» 


.  At  the  session  of  Oyer  and  Terminer  bolden 
for  the  city  of  London  at  Justice- Hall  afore- 
uid,  on  Tiinrsday  the  30th  day  of  May,  1754, 
before  the  rig^ht  hon.  Thomas  Rawlinson,  esq. 
lord  mayor  of  the  same  city  ;  sir  John  Willes, 
knt.  chief  justice  of  his  majesty's  court  of 
Common  Pleaa ;  sir  Thomas  Dennison,  knt. 
one  of  his  majesty's  justices  of  the  court  of 
Kin^'s-bench  ;  Edward  Clive,  esq.  one  of  the 
justices  of  his  majesty's  court  of  Common 
Pleas ;  Henry  Legnfe,  esq.  one  of  the  barons 
of  his  majesty's  court  uF  Exchequer;  sir 
Sidney  Sta£R>rd'  Smy  the,  knt.  one  other  of  the 
barons  of  his  majesty's  court  of  Exchequer) 
air  John  Barnard,  knt.  William  Benn,  esq.  sir 

'  nothing  to  lose  by  going  away,  an  argument 

*  of  her  mnocence  ?'— -ilwiavr.  As  a  person's 
flying  from  justice  is  a  presumption  of  guilt, 
so  a  voluntary  surrender  is,  by  parity  of  rea- 
son, a  presumption  of  innocence ;  but  then  it 
is  but  a  presumption,  which  may  beoverthrovru 
by  direct  positive  evidence. 

II.  *  Is  it  agreeable  to  law,  that  a  jury,  once 

*  charged  with  the  evidence,  may  be  permitted 
Mo  ^  at  large,  before  they  have  delivered  in 

*  their  verdict." A,    I  am  of  opinion,  that 

though  a  jury  once  charged,  may,  by  consent 
of  parties,  be  discharged  wholly  from  trying 
the  cause;  yet  I  do  not  apprehend  that  the 
law  will  allow  them  to  go  at  large,  in  a  crimi- 
nal case,  while  the  trial  is  depending:  for 
though  in  a  long  trial  such  a  confinement  may 
be  inconvenient,  yet  I  cannot  find  that  the  law 
has  provided  any  remedy  for  it ;  it  being  in 
the  eye  of  Ihe  law  a  less  inconvenience,  than 
exposing  the  jury  to  be  tampered  with  before 
they  have  brought  in  their  verdict;  yet  I  see 
not  hut  that  they  may  take  refreshment,  and 
retire  to  rest  in  a  place  provided  for  them,  pro- 
vided that  they  be  guanle<l  by  a  sworn  officer, 
that  nobody  be  admitted  to  speak  to  them. 

III.  *  Is  it  not  necessary  upon  an  indictment 

*  for  perjury,  not  only  to  prove  that  the  fact 
'  sworn  to  is  false,  but  also  that  the  defendant 
'  knew  it  to  be  so  at  the  time  of  swearing  ?'-^— 
A.  I  think  it  to  be  very  clear,  that  a  mere 
mistaken  false  oath,  without  wilful  and  corrupt 
design,  is  not  perjury  within  the  meaning  of 
Ihe  indictment ;  fur  the  indictment  charges  it 
to  be  done  falsely,  wilfully  and  corruptly. 
Nor  did  i  ever  know,  hear  or  read  of  any  one 
convicted  of  perjury,  without  evidence  to'prove 
a  corrupt  design,  plot  or  confederacy,  or  else 
that  the  party  must  needs  know  it  be  false ;  as 
in  this  case,  if  it  were  proved  that  Elizabeth 
Canning  was  elsewhere  at  the  time  she  pre- 
tended to  be  at  Enfield ;  for  in  this  she  cuuld 
not  swear  false  through  mistake,  as  she  might 
with  respect  to  the  person  of  the  gypsey. 
Nor  is  it  sufficient  that  even  this  evidence  be 
but  of  equal  weight  with  the  defendant's  oath ; 
for  that  would  be  but  oath  a^inst  oath,  which 
determines  nothing,  unless  it  be  of  superior 
weight  and  credit ;  for  else,  by  turning  the 
tables,  the  witness  might  equally  be  convicted 
•a  Ihe  dclVudant's  oatb. 


Robert  Ladbroke,  knt.  Francis  Cokayne,  evq. 
Robert  Alsop,  esq.  aldermen  of  the  said  dty 
of  London ;  William  Moreton,  esq.  recorder  of 
the  same  city ;  Stephen  Theodore  Jaosseni 
esq.  Marshe  Dickinson,  esq.  Robert  Scott, 
esq.  sir  Richard  Glyn,  knt.  and  William  Afex-. 
ander,  esq.  other  the  aldermen  of  the  sane 
city ;  the  defendant  was  brought  to  the  bar,  lb 
receive  judgment 

Her  counsel  argued  for  a  new  trial,  and  t» 
support  their  arguments,  again  quoted  the  CSasa 
of  Ashley  and  Simons  the  Jew,  and  insisted. 
That  was  a  precedent  in  their  favour.-^Lori 
Chief  Justice  Willes  acquainted  the  Co«V 
*'  A  new  trial  «ould  not  be  granted,  for  n  tba 

IV.  <  Does  the  law  require  that  a  jny 

*  charged  u|ion  such  indictment,  must  iMi* 

*  sarily  bring  in  their  verdict  Guilty  or  Ikl 

<  Gudty  generally  ?' A,  Certainly  the  bv 

requires  no  such  thing ;  for  the  jury  aaf, 
if  they  please,  bring  in  their  verdict  special,  sr 
guilty  as  to  ))art,  and  not  guilty  at  to  ate 
part.  Indeed,  if  it  he  only  verlioaely  waidd, 
and  amounts  in  substance  to  a  general  verdict, 
it  may  be  right  in  the  Court  to  tdl  Ibem,  it 
would  be  more  proper  to  find  it  geocfal;  but 
then  care  should  be  taken  so  to  explain  it  to 
them,  that  they  -may  not  by  a  general  ferdiet 
find  the  defendant  guilty  of  more  than  tlicy 
believe  or  intended  to  find  him. 

V.  *  Does  not  a  finding  the  defendant  iit 

*  guilty  of  wilful  perjury,  amount  to  an  ac- 

*  quittal,  although  they  abould  also  find  Ifcs 
'  party  guilty  of  swearing  falsely,  not  ujlfully?' 
— ^.  I  f  the  jury  really  believed  the  parU  ii- 
nocent  of  wilful  forswearing,  this  is  in  effect  t* 
general  verdict  of  an  acquittal,  fur  this  is  Ibe 
only  criminal  uart  of  the  indictment ;  and  tbe 
swearing  falsely,  if  not  with  design  and  know*. 
ingly,  is,  as  I  conceive,  not  criminal  ia  Uv: 
and  aUer  this,  to  find  a  general  verdict  of  gailt}V 
is  quite  the  contrary  to  their  first  finding. 

VI.  *  Suppose  the  jury,  through  sorpriiCi 

*  inadvertency,  or  mistake,  find  such  a  verdid, 

*  is  there  any  remedy  to  prevent  judgment  it 

*  such  case?' A.  This  is  extremely  difi* 

cult,  unless  some  error  can  be  shewn  upon  the 
face  of  the  record,  which  may  be  cau«e  for 
arresting  judgment.  Perhaps  the  sufierio^. 
the  jury  to  go  at  large  in  the  midst  uf  tbe 
trial  may  be  such  a  cause,  as  being  a  mis- trial* 


In  the  Case  of  Simons,  the  Polish  Je^i 
upon  affidavits  of  the  jury,  that  they  did  not 
mean  to  give  such  verdict  as  was  entered  (i* 
here,  that  they  did  not  mean  to  find  the  de- 
fendant guUty  of  that  part  of  the  indictmeoti 
which  charges  her  with  wilful  and  corrupt 
perjury,  but  only  that  she  had  in  some  ^ 
sworn  falsely,  though  not  wilfully)  the  Co0*^ 
did  set  aside  the  trial. — If  this  be  really  tbi 
case,  the  jury  ought  however,  for  disburtbcf 
ing  their  own  consciences,  to  make  such  i*" 
presentations  to  the  Court,  and  leave  the  ebd 
to  them.  S.  EiikTM*^ 

May  9,  1754. 


I 
H 


I 


J&f  Wilful  and  Corrupt  Perji 


D.  1754. 


[  Cmae  of  AsMej  and  8fmoni$  the  juii^e  tbere 
[  Mook  a  wron^  verdict,  which  vvasnoi  the  meao- 
»gj'  of  the  jury  ; — Ijtii  in  lUis  Case  the  verdict 
I  g^eral,  tod  they  all  abltJe  by  it,  but  two, 
tio   are  but  weak  men,  tjrst  tu  consent  and 
re  in  their  verdict  accord i 03*  to  their  oath, 
then  to  recant.*'— On  which  the  motion 
nver-ruled, — Then    ilie  Cotirt  were  pro- 
ding*  to  sentence,  nht-n  sir  John   Barnard 
up,  and   recommended  her  for  mercy, 
i  that  her  sentence  mig:lit  only  be  six  inotilha 
jirison merit,   for  he   heheved   she   was   not 
llty  aloue;    in  which  eeveu  other  alderraeo 

Th€u  L.  C.  J.  Wilies  told  tbem,  he  hod 
ed  that  collections  bdd  been  made  for 
ei-  amouniinn;  lo  con  ftiderahle  sums  of  money; 
tl  ilher  sentence  was  only  to  remain  in  New- 
there  would  be  Rucb  sums  collected,  and 
•och  assemblieB  of  an  eFeniu^^,  as  would  ren- 
^^r  h<  r  sentence  ratlu^r  a  diversion  than  a  pa- 
•Hsibment — Nor  the  pillory  he  no  ways  Judged 
*ftfe,  tVarin^  nmch  nnischief  mig^ht  be  done. — 
At>ii,  concluding,  that  he  thouijht  her  noto- 
•"^Viisly  g-niliy.  In  which  opinion  nil  the  other 
J'»dtTf-s  JQioed,  with  my  lord  mayor,  the  re- 
corder, and  two  aldermen,  viz. 

For  Trannportaiion, — The  right  hon.  Tho- 
mas Rawlinson,  esq,  lord  mayor  of  the  city  of 
**c»ndon,  8jr  John  Willew,  knt,  chief  justice  of 
bii  majesty's  court  of  Common  Pleas*  Sir 
^!^9mas  Detinifiun,  knt.  one  of  his  majesty  V 
jimices  of  the  court  of  King's-bench.  Edward 
Cjive,  e«q.  one  of  the  juBticei  of  his  majeisty'a 
ioart  of  Common  Pleas,  Henry  Legfije,  esq> 
one  of  the  barons  of  his  majesty's  court  of 
Bxchequer,  8ir  Sidney  Stafford  Smythe,  knt. 
one  other  of  the  barons  of  his  maje^y^s  court 
of  Exchequer.  Williatn  Moreton,  esq.  re- 
corder of  London.  Stephen  Theodore  Janssen, 
esq.   Marthe  Dickinson,  esq,  aldermen. 

iVr  Six  Months  Imprisofiment  oniy^-^HW 
Joho  Barnard,  knt.  William  Benn,  esq.  8irR»- 
Ipert  Ladbrotie,  knt.  Francis  Coknyne,  esq.  Rg^ 
berf  Alsop,  e^,  ttohert  Scott,  esq.  8ir  Richard 
CilyOi  knt.  Withutu  Alexander,  esq .  aldermen. 

Then  Eltiaheth  Canning  addressed  the  court 
"  ih  the  following  speech ^  with  a  !ow  voice. — 
That  she  hoped  I  bey  would  he  favourable  to 
^er ;  that  she  had  no  intent  of  swearing  the 
sytMiey^s  life  away  ;  and  that  what  had  been 
SoDe,  was  only  def ending  herself;  and  deaired 
to  be  considered  aa  unfortunuie.''  Tbeo  the 
Recorder  Bpwke  thtis: 

Mr.  Recorder,  Elizabetli  Canning",  you  now 
■Itnd  convicted  (upon  the  clearest  proof)  of 
Wtlfu!  and  corrupt  perjury  ;  a  crime  attended 
with  the  most  fcital  and  ijangerons  consequences 
to  the  conmiiinity,  tlioojrti  (as  yet)  it  is  tiot 
punished  with  death.  Your  trial  has  taken  up 
m  fi^at  deal  of  lime,  and  the  several  witnesses 
have  uuderi^iue  the  strictest  examination  ;  and 
1  think  I  may  venture  to  affirm,  that  there  is 
not  one  unpr«'judiced  [lerson,  ol  the  ^^reat  num- 
bers who  have  aiteiidcd  it,  bot  moftt  be  Gt)D- 

TOL.  XIX, 


lalilv  of  lh#il™ 


yinced  of  the  justice  and  im parti alhy  of  the" 
jury  in  the  verdict  they  have  qiieu. 

It  is  with  horror  1  look  hack,  and  thiik  of 
the  evidence  you  gave  at  the  trial  of  Alury 
Squires,  whom  you  knew  to  be  destitute  ami 
friendless,  and  therefore  fixed  upon  her  ae$  a 
proper  object  to  make  a  sacriiicc  of,  at  the 
ilretidful  experrce  of  a  false  oath  ;  thi?i  you 
preferred  to  the  making  a  plain  discovery  lo 
those  who  had  a  right  to  know  where  yoa 
really  were  those  twenty  eight  days  r f  your 
pretended  confinement  at  WeUs*s  ;  and  in  this 
you  were  encouraged  to  persist,  as  welt  by  that 
misapplied  charity,  which  was  bmintifullv 
g-iveu  you  in  compassion  to  your  suppt^se'd 
sufferings,  as  by  the  advice  of  your  mistaken 
friends,  wliom  you  had  deluded  and  deceived 
into  a  belief  of  the  truth  of  what  you  had 
falsely  sworu, 

Thrs  audacious  attempt,  and  that  calm  and 
deliberate  assurance  with  vvbich  you  formed  a 
•clieme  to  tabe  away  the  life  ot  one  (itiough 
the  mu,«it  nbjeel)  of  the  human  species,  lo- 
Ifether  with  your  youth,  and  the  character 
you  then  had^  as  well  as  jour  seeming  iuex- 
pf  rience,  imposed  upon  many,  aud  gained  you 
a  credit  which  must  have  exceeded  your  high- 
est expectations ;  and  being  thu$  abandoned  ,an<l 
thus  encourageil,  you  not  only  »*ickedly  per* 
severed,  but  even  u-iumpbcd  over  those  who 
would  not  suffer  their  ju<!gmeols  lo  be  mislefl 
by  so  gross  an  imposition. 

But  when  at  I  a  sit  people  had  a  little  reroTf  red 
Ibdr  surprize,  and  tins  almost  miracnlons  tale 
of  yours  came  to  be  temperately  canvassed  and 
tried,  by  comparing  your  own  original  infor- 
mation with  the  evidence  you  had  given  at  the 
trial,  and  was  found  to  vary  iu  so  many  mate- 
rial and  siguiticant  circumHtances ;  then   ihit 
reseutmeni  you  had  raised  began  to  snbside,  and 
gfive  way  to  that  most  necessary  enquiry  (n  bich 
the  worthy  magiitrate  who  then  |»resuled  m 
this  court  so  charitably  uudertonk,  and)  which 
in   its  consequence   not  only  saved  tlmt  life, 
which  by  your  false  testimony  was  intended  Iti 
be  taken  away,  b*il  gave  rise  to  lliis  prosecution, 
which  must  hoih  ej^pose  the  guilty,  and  cou- 
?ince  the  doubtful.      And  as  evd  uctions  have  . 
sometimes  been  produclive  of  unforeseen,  na^^l 
even  good  effects ;    so  this  iniquity  of  yonn 
will,   1  hope,  instruct  mankind  not  to  suffk 
iheir  cretlulity  to  get  the  better  of  their  rea sorrel 
by  giving  way  to  those  very  early  tmpressicin^p] 
wliich  the  arttfice  of  fahbood  too  often  ma  kef,' 

I  flhiill  add  but  very  little  more  ;  for  I  would 
avoid  aggravating  your  guilt,  which  is  suffi- 
ciently  maniliest  by  your  trial,  or  saying  auy 
thing  which  mny  increase  the  afllicLiou  of  one 
wboin  I  must  call  unfortunate :  hut  as  1  attend- 
ed both  yoTir  trial,  as  well  as  that  of  Marjfl 
Squires,  it  may  be  expected  that  1  should  da» 
dare  my  thoughts  as  well  of  one  as  lite  other; 
1  therefore,  in  the  most  solemn  manner,  iitiirm, 
that  I  always  thought  your  ifvideoci-  fidni',  ami 
that  the  witnesses  produced  in  your  dtknce 
were  most  trrossly  mistaken. 

The  policy  of  foreigii  couoirtes  punitto  of* 
2  X  "■ 


675] 


27  GEORGE  11. 


Triat  of  Elizabeth  Canningt, 


[676 


fences  of  tliis  magnitude  with  death,  and  upon 
this  m«>8t  rational  principle,  thai  when  a  life 
is  attacked  by  false  oath,  maliciously  and  deli- 
berately taken,  the  punishment  to  which  such 
a  8up)K>8ed  criminal  is  thereby  exposed,  falls 
upon  the  person  guilty  of  so  horrid  an  attempt : 
but  it  is  your  particular  happiness  that  you  are 
in  a  country,  where  severe  and  sanguinary  laws 
are  not  so  familiar ;  and  though  many  may  ex- 
pect, and  the  Court  surely  could  in  this  case,  jus- 
tify the  most  severe  and  exemplary  punishment 
which  the  law  can  iuflict ;  yet  you  will  soon 
be  convinced,  that  your  sentence  is  in  no  de- 
cree adequate  to  the  greatness  of  your  of- 
fence. The  judgment  therefore  of  this  Court  is. 
That  you  shall  be  imprisoned  in  the  gaol  of 
Newgate  for  one  month  ;  and  afler  the  expira- 
tion of  your  imprisonment,  you  shall  be  trans- 
ported to  some  of  his  majesty's  colonies  or  plan- 
tations in  America  for  the  term  of  seven  years ; 
and  if  within  that  term  you  return,  and  are 
i'ound  at  large  in  any  of  his  majesty's  do* 
minions  of  Great  Britain  or  Ireland,  you 
shall  suffer  death  as  a  felon  without  benefit  of 
clergy. 


The  following  Affidavits  were    soon  after 
made  and  publislied  by  two  of  the  jurymen.* 

*<  Joseph  Russell  and  Richard  Frome,  two  of 
the  jury  for  trying  the  issue  l>etween  our  sove- 
reign lord  the  king,  and  Etizabeih  Canning, 
spinster,  upon  an  indictment  for  perjury,  at, 
&c.  each  speaking  for  himself,  and  not  one  for 
the  othtr,  jointly  and  severally  make  oath  and 
say,  That  ihese  de{M)nenis,  and  the  rest  of  the 
jurors  sworn  to  try  the  said  issue,  agreed  in  their 
▼erdict  first  delivered  to  the  Court,  and  which 
said  verdict  was  unanimously  agreed  to  be 
reduced  into,  and  was  accordingly  reduced  into 
writing  ;  and  was,  that  the  said  Elizabeth 
Canning  was  guilty  of  perjury,  but  not  wil- 
ful and  corrupt ;  as  these  deponents,  or  cither 
of  them,  di«l  not  apprthend  or  believe,  that 
«he  the  said  Elizabeth  Canning  knew  or  believed 
the  facts  by  her  sworn  in  her  evidence  aiirainst 
Alary  ^k|nires,  upon  the  trial  of  the  said  Mary 
Squires,  were  nut  true  when  she  so  swore  the 
same.  But  these  deponents  say,  they  were 
induced  to  join  in  and  agree  to  the  verdict  that 
is  recorded,  believing  that  the  words  '  wilful  and 
corrupi'  were  mere  matter  of  form,  and  under- 
staudins  it  to  be  the  opinion  of  the  Court  that 
the  f»aidjury  could  not  bring  in  their  verdict 
•n  the  manner  they  did  at  first,  and  not  from 
An  opinion  or  belief  that  the  said  E.  Canning 
had  any  intent  tu  charge  the  said  Mary  Squires 
falsely,  or  maliciously  and  deliberately  to  cause 
or  procure  the  t^uid  Mary  Squires  to  be  untruly 
convicted.  And  these  dcp'snents  further  say, 
that  they  are  very  uneasy  in  their  minils,  and 
dissatisfied  in  their  consciences,  by  finding  that 
the  verdict  delivered  by  them,  and  recorded  as 
aforesaid,  is  understood  and  imports  a  convic- 

*  From  the  Refutation  of  sir  CrispGasooyne's 
Address  to  the  Livery,  p.  44,  45. 


tion  of  the  said  £.  Canning  of  deliberate,  wilful, 
and  intended  perjury,  iu  swearing  facts  which 
she  knew  to  be  false.       Joseph  'Russbix. 

**  Richard  Frome." 

"  Joseph  Russell,  one  of  the  juron  sworn  Is 
try  the  issue  between  our  sovereigo  tord  ttw 
king  and  £.  Canning,  spinster,  u|ion  an  indid' 
meut  for  perjury,  at  the  sessions  of  Oyer  and 
Terminer  holden  for  the  city  of  London,  ths 
24th  da^  of  April  last,  and  the  following  dtyt, 
at  Justice  IJall  in  the  Old  Bailify,  io  the  n- 
burbs  of  the  said  city,  maketh  oath,  and  sikb, 
That  when  the  said  jurors  went  out  of  cowtts 
consider  of  their  verdict,  they  began  tocn- 
mine,  from  the  notes  taken  by  them  io  tmrt, 
the  evidence  on  behalf  of  the  prosecuti<Mi ;  isi 
that  when  they  had  proceeded  therein  so  6r« 
the  testimony  of  about  twelve  or  fourteen  «i|p 
nesscs,  (to  the  best  of  this  deponent's  remas- 
brance  as  to  the  numb.-r  of  such  witocsH^ 
making  their  observations  on  those  whose  tes- 
timony either  appeared  to  deserve  credit,  «r  t§ 
be  exceptionable,  an  ofiicer  (whose  name  ikis 
deponent  doth  not  know)  came  (as  be  sud) 
from  the  Court,  to  know  whether  tbejsry 
were   agreed  in  their   verdict  ?     Wherrupoa 
William  Parsons,  one  of  the  jury,  said.  How 
can  they  think  we  can  agree  on  a  verdict  ui  is 
short  a  time?    Others  of  the  jury  sakl,  Yoi 
find  the  Court  fs  impatient,  there  is  a  perju^ 
in  the  two  informations  that  lie  on  the  table : 
others  declared,  that  was  not  the  thing  Ibcy 
were  come  to  yet :   and  one  (the  foremao,  ts 
the  best  of  this  deponent's  remembrance  sod 
belief)  said,  If  vou  can  make  those  two  ess- 
minations  one  thing,  there  is  no  perjury ;  bit 
as  one  mentions  all  the  water  to  be  drank  up  N 
one  day,  and  the  other  mentions  its  being  made 
an  end  of  on  a  different  day,  there  is  a  |ierjurj: 
whereupon  it  was  urged  by  several  of  the  jury, 
that  that  was  not  a  wilful  and  corrupt  perjury: 
and  it  was  then  (without  further  examioatiooif 
the  evidence  in  t>ehaif  of  the  prosecution,  or 
any  examination  of  the  evidence  in  behalf  of 
the  defendant,  or  once  reading  of  the  iDdict* 
ment,  or  any  mention  being  made  of  the  cri* 
minal  import  thereof)  unanimously  agreed  to 
bring  in  the  defendant  guilty  of  perjury,  bot 
not  wilful  and  corrupt.     And  he  this  de|K)Bfil 
then  speaking  to  the  foreinau  said,  Mr.  Fort* 
man,  as  we  have  agreed  of  a  perjury,  but  set 
wilful  and  corrupt,  write  it  down,  tor  fear  j^es 
should  make  a  mistake  iu   giving  of  it  in; 
which  the  foreman  did  accordingly.     Aod  be 
this  deponent  took  the  same  out  of  his  haod  IS 
read  it,  and  finding  it  to  be  as  aforesairti  r^ 
turned  it  again.     And  this  deponent  further 
saitli,  that  such  verdict  as  aforesaid  was  defir 
vered  by  the  foreman  to  the  Court ;  who  betof 
dissatisfied  therewith,  directe<l  the  jury  to  g« 
out  a  second  time.     And  this  deponent  furtbitf 
saitli,  that  he  cannot  remember  particularly  «bal 
parsed  or  was  said  in  court  between  tl»e  jury^ 
delivering  in  their  first  verdict,  and  going  oi>^> 
second  time  to  re-consider  it:  but  saith, tbatbt 
this  deponent  did  not  see,  nor  does  be  MiiT^ 


677] 


Jirr  Wilful  and  Cormpt  Perjury. 


A.  D.  1754. 


[67aM 


tUat  there  was  any  copy  of  ihe  itittictTueat 
j^aiDst  the  det'endant  E.  Ca  tin  tog  before  the 
jury,  nor  did  he  hear  the  meajiiDg  or  purport 
of  stuch  iodictmcut  oiicc  meniionecj  Uy  a  single 
nersrm  on  the  jury  whilst  they  were  coiisuler- 
ing  of  their  verdict,  or  cither  of  ihem  :  nor  did 
lie  thi9  depODPnt  at  that  time,  nor  doth  he  now 
believe,  that  tlie  defeudaul  E»  Canriing  is 
ifojliy  of  wilful  and  corrupt  perjury,  in  Bwear- 
IDg-  falsely  against  Mary  Squires  ;  hiu  saith, 
that  on  comttarinpf  and  considering  the  evi- 
dence, OS  weli  on  the  part  of  the  prcisecutioo, 
AS  In  behalf  of  the  snid  defendnnt  E«  Canning, 
lie  tbcD  did,  and  doth  now  helitve,  that  Mary 
Bquires  was  at  the  house  of  mother  Wells's,  at 
Enfield- Wash,  and  that  she  the  said  defendant 
£.  Csnuitig  was  wrnnged  at  Enfield- WaFih^ 
And  this  deponent  further  saith,  that  whilst  the 
•aid  jury  were  out  a  second  time  consiileritig 
of  their  verdict,  several  of  them  were  forbriog- 
ing  in  the  defendant  E.  Canning  not  guilty, 
•Hedging  that  they  did  not  helieve  her  guiliy 
•f  wilfui  and  corrupt  perjury,  or  of  any  other 
•etjury  or  crime,  than  that  of  her  variationa  in 
■rr  seieral  exainuiatitins  in  regard  to  the  time 
•f  her  having  ilrank  up  her  water  as  aforesaid  : 
Iftut  the  foreoian  of  i!ie  jury  declaring  they 
could  not  hiiiig  in  the  said  E.  Canning  nut 
rMiky,  because  they  had  already  found  her 
■Miity  of  perjury  ;  it  was  upon  that  account, 
^^Hi  for  that  rfason,  and  no  other,  as  thi.^  depo- 
^Qent  believL^s,  oj^^reed  by  the  said  jury,  h}^  their 
«aid  second  verdict,  to  bring  in  the  defendanl 
£.  Canning  guilty  of  a  perjury  (no  other  rea- 
900,  argninent  or  motive  whatsoever  being 
meotionerl,  to  the  beiiturthis  disponent's  know- 
ledge^  reniemb  ranee  or  he  lief,  h}'  any  one  of  the 
aaid  jury  )  And  this  deponent  further  saith, 
that  he  shoidd  not  have  been  tndnce^l  to  join  in 
and  agree  t^i  Hueh  verdict,  had  he  kooivn  or 
considered  tiiat  it  is  the  act  of  the  uiind,  and 
not  an  undegi^^ned  mistake  ((0  which  every  one 
from  the  imperfeetiun  of  humnn  nature  is 
liable,)  that  consiitntes  the  off*  nee  whereof  the 
Vftid  E.  Canning  was  indicted  ;  or  if  he  had 
then  cousidfred  (.la  he  ought,}  tliat  whether 
the  last  or  remainder  of  llie  water  was  drank 
00  the  Friday  precedinu  the  day  I  be  said  E, 
Canning  escuned  trom  Enfield*  Wash,  or  but  a 
ffW  hou'S  before  she  mude  her  escapei  il  could 
have  Oil  teodencv  to  proi  e  the  said  M ,  Squires 
guilty  ;  or  if  «ihe  uati  gudty,  con  Id  not  aggia* 
¥ite  or  lessen  her  guilt.  And  this  deponent 
further  safth,  tliai  when  the  jury  aj^reetl  to 
mich  second  verdict,  ibey  agreed  earnesilv  *o 
rec«>nin)end  E«  Cunning  to  the  mercy  ot  the 
Court  (which  rectnnmendation  was  nnani- 
mously  agreed  tci  by  all  the  jury,  and  ntit  oh- 
ieded  to  hy  any  mie,  to  thin  de|ioneiil*»  know- 
ledge or  belief,)  And  this  deponent  further 
Sttith,  that  whilst  the  jury  were  considering  of 
tbetr  said  %erdictST  he  tioih  not  remendier  to 
have  lieardf  nnr  d"th  he  believe,  any  one  of  the 
said  jury  flectared  hb  helief,  thai  the  said  de- 
fendant E.  Canning  was  guilty  of  wilful  and 
corrupt  perjury,  the  crime  wbeienf  she  stood 
indicted  :  aud  that  he  this  deponent  would  not, 


nor  hath  he  any  rf asoo  to  appreheml  or  he*. 
It(!ve,  that  any  one  of  the  said  jury  woubl  hare 
agreed  to  their  said  first  verdict;  or  upoa 
bringing  in  of  the  second,  wuiihl  (in  purtnance 
of  what  was  previously  aud  unanimously  aj^»-i^ed 
to  as  aforesaid)  have  rectiinuitnileJ  the  saul  E. 
Canning  to  the  mercy  of  the  Court,  had  they 
believed  her  guilty  of  a  crime  so  heincvus  in  ila 
nature,  and  so  dangerous  in  its  conseqnencesi 
as  wilful  and  corrupt  pe»jury,  with  an  intent  t<j' 
take  away  the  lile  of  au  innocent  person,  which, 
ill  the  opinion  of  this  deponents  deserves  a  more 
severe  sentence  than  tliat  pastterl  on  the  said  E. 
Canning,  rather  than  a  mitigation  thereof. 
Anil  tlii^  deponent  further  salth,  that  afier  the 
said  jury  liad  delivered  in  their  said  second  or 
last  verdict,  and  bt^fore  they  came  out  of  court, 
Thomas  Ford,  clerk  of  the  arraigns,  a.sked 
him,  this  deponent,  what  he  thought  of  it  now  5 
To  whom  ihis  deponent  iuimediatelv  declared, 
that  he  this  deponent  believed  the  girl  (ihe  said 
E.  Canning)  %vus  wronged  at  Enfield- Wasli 
more  tiian  ever  he  did  betiire  :  n  hieh  circuin- 
stnnce  he  iliis  deponent  repeated  in  court  on 
the  lath  day  ()f  May  last,  when  he  made  hit 
first  a IH davit  relating  to  the  verdict  of  (he  said 
jury,  in  the  hearing  of  the  said  Thomas  Fonl, 
who  in  no  wii^e  contradicted  the  same*  And 
this  deponent  further  .sailh,  that  the  said  WiU 
liam  Parsons,  on  the  12th  day  of  May,  de- 
clared, in  the  hearincf  of  Richard  Fro  me,  one 
of  the  said  jury,  Thomas  Hunt,  and  him  thii! 
dejKsiient,  that  the  senttments  of  him  the  said 
William  Parsons,  respecting  the  said  ^.  Can- 
ning and  the  saiil  verdiciM,  were  the  same  as 
those  nf  ibis  deponent  as  above  slated;  hut  that 
the  sail!  William  Parsons  had  coiii^ulted  a  friend, 
^vbo  hati  adviised  him  not  to  make  any  afiiilavtt, 
tbr  which  reason  he  declined  it,  or  to  thai  ef- 
fect. And  tliis  deponent  further  saith,  that  he 
this  deponent  is  an  utter  stranger  to  all  the 
persons  x%ho  have  bail,  ur  now  have,  ihe  direc- 
tion antl  manageintTit  ol  the  defence  of  E, 
Canning  (the  said  Thomas  Hunt  otdy  excepted, 
1^  hoiM  this  deponent  knew  durini;  his  clerkship, 
h^m%  then  his  neif^hhour,  hot  had  not  spuken 
u*  the  said  Thotnas  Hunt  during  E.  Cnnnlni^^s 
trial,  or  for  twelve  months  before  :)  but  he  bud 
bL'en  with  the  m' it  her  of  the  ^^aid  E.  Canning, 
and  hud  declared  to  her,  and  in  public,  his  dts- 
sat intkc lion  and  concern  at  the  said  verdict  of 
the  said  jory^  and  his  utter  ignorance  of  the 
import  and  consequence  thereof  at  the  lime  he 
joined  in  the  same:  alter  which  the  said  Tho- 
mas Hunt  came  to  him  this  deponent,  in  ordef 
to  draw  up  and  seiili^  the  iitfidavii  made  by  this  ' 
deponent  and  Utchflrd  Frome,  auniher  nf  the 
jury,  on  the  said  VMh  day  ui  Mwy  last:  and*' 
9^aiih,  his  making  the  present  athdavit  pfoceeda 
from  his  own  motion  and  free-will ;  and  that  it*] 
is  made  with  a  strict  regard  to  truth,  asi  well  as. 
a  sincere  desire  tn  prevent,  as  fur  as  in  him  lies, 
the  said  £.  Canning's  sutfering  thiit  infamy, 
aud  |iunishment  which  he  is  fully  Natit^ified  she^  | 
has  in  no  wise  merileil.  Jo.  Rli^sell/* 

**  B»orn  the  10th  day  of  June«  1754, 
before  me,  at  tny  house,  Rob&ut  Scott.' 


679] 


S7  GEORGE  IL 


Trial  ofEUzahelh  Canning  ;^^ 


There  were  several  pamphlets  pnblishefl  at 
that  time  pro  and  con,  and  several  adrertise- 
ments  and  parai^raphs  published  in  the  public 
news- papers,  relatini^to  this  mysterious  affair  ; 
the  sunslancc  of  which  in  general  were,— Some 
asserting  not  only  the  improbability,  but  the 
impossibility  of  her  story. — Others,  that  she 
was  with  child,  and  concealed  herself  whilst 
she  lay  in  :  some,  that  she  was  an  enthusiast, 
and  inflamed  with  wine,  whilst  in  Newgate: 
— others,  that  she  would  have  discovered  the 
nvhole  secret,  if  she  had  not  been  tutored  and 
buoyed  up  by  the  Methodists,  &c. — And  some, 
Uiat  it  was  a  scheme  laid  and  contrived  by  some 
artful  person,  to  raise  money.— However,  no 
one  put  their  names  to  these  publications 
against  her,  yet  it  drew  the  two  following  ad- 
vertisements ;  one  from  the  clergyman  that  at- 
tended her  in  Newgate,  and  the  other  from 
herself* 

"  June  7, 1754. 
<'  The  many  falsities  daily  propagated  in 
relation  to  the  story  of  Elizabeth  Canning, 
oblige  me  to  acquamt  the  public,  that  soon 
afler  the  commitment  of  that  unhappy  girl  to 
Newgate,  1  was  requested  by  one  of  ner  friends 
to  visit  her  as  a  clergyman.  I  have  visited  her 
often,  without  giving  notice  of  my  coming; 
and  always  found  the  appearance  of  order,  de- 
cency, and  sobriety,  both  in  the  prisoner  and 
lier  few  attendants.  J  have  conversed  with 
her  alone,  and  in  the  presence  of  her  friends, 
on  the  crime  for  which  she  was  indicted:  I 
have  read  to,  and  prayed  with  her  and  them ; 
and  as  she  professed  herself  a  member  of  the 
church  of  England,  slie  always  joined  cordially 
and  earnestly  in  the  devotional  offices  of  the 
liturgy  ;  nor  have  I  been  able  to  discover  any 
thing  that  could  gfive  occasion  to  a  charge  of 
enthusiasm.  On  the  contrary,  the  appearance, 
the  conversation,  and  the  behaviour  of  Eliza- 
beth Canning  have,  to  the  best  of  my  observa- 
tion, been  always  such,  as  indicated  a  mind  not 
unsettled  in  the  principles  of  religion,  or  con- 
scious of  flagrant  guilt. — William  Reyner, 
rector  of  St.  Mary  Magdalen,  Old-Fish- street." 

««  June  27 J 1754. 
"  After  being  forced,  by  the  most  confident 
assertions,  to  summon  a  physician  and  a  mid- 
wife upon  ray  trial,  to  clear  my  character 
from  the  foulest  aspersions,  whose  examination 
was  made  unnecessary  by  the  testimony  of  a 
midwife  called  on  the  part  of  the  prosecution; 
af\er  being  prevented  examining  the  far  greater 
number  of  the  cloud  of  witnesses  ready  to  ap- 
fiear  to  my  character,  by  the  express  declara- 
tions of  counsel  retained  against  me,  that  they 
had  nothing  to  alledge  to  my  prejudice  but  the 
single  crime  for  which  1  was  indicted ;  after 
the  public  has  been  assured  that  Elizabeth 
Knott,  who  was  convicted  of  single  felony, 
was  a  principal  whne&s  to  prove  my  return 
firom  Enfield,  when  she  was  not  tubpcened  or 

*  Vide  the  Refutation  of  sir  Crisp  Gatoojiic'i 
Iddreai  to  the  livery ,  page  47, 49* 


examined,  or  intended  to  be  subpcened  or  exa- 
mined, to  that  or  any  other  fact ;  after  having 
been  represented  by  the  Inspector,*  as  a  penoa 
inflamed  with  wine,  and  made  drunk  with  en- 
thusiasm, and  as  rising  from  my  seat,  and 
coming  towards  a  justice  of  the  peace,  with  all 
the  appearance  of  beginning  an  instant  aact 
full  confession  ;f  assertions  that  have  been 
publicly  proved  to  be  false :  afler  these  things, 
there  seemed  some  room  to  hope,  tliat  the  tor- 
rent of  abuse  against  me  would  have  alopncd 
of  itself.  But  being  informed  that  a  report  haa 
been  diligently  propagated  and  prevaiMd,  that 
1  had  squeaked,  and  declared  I  would  < 


or  reveal  the  whole,  npon  condition  1  waa  par* 
rloned,  and  permitted  to  conceal  namea  ;  n4 
that  I  had  for  answer,  if  I  expected  any  mcKf, 
I  must  name  names;  1  am  compelled  tedi- 
clare,  and  do  in  the  most  serious  naaoiier,  h4 
with  the  strictest  regard  to  truth,  hereby  de- 
clare, that  I  remain  at  this  instant  of  time  fiii^f 
persuaded,  and  well  assured,  that  Mary  9mun§ 
was  the  person  who  robbed  me  ;  that  the  boiHa 
of  Susannah  Wells  waa  the  place  in  which  I 
was  confined  twenty -eight  days;  anil  that  I 
did  not  in  my  several  informations  or  exani* 
nations  before  the  different  magistrates^  er  in 
my  evidence  on  the  trial  of  the  saul  Mary 
Squires  and  Susannah  Wells,  knowingly,  ia 
any  material,  or  even  in  the  most  minute  cir- 
cumstance, deviate  from  the  truth.  As  wit- 
ness tny  hand  tliis  84th  day  of  June,  1754. 

**  EUZABETH  CaMNIMO.'* 

«'  Witness,  Benj.  Deatton." 

However,  the  jui'y's  recomrocndiog  ber  to 
mercy  had  no  effect;  for  Elizabeth  Caoaing 
was  transported  in  AugUHt  1754  (at  the  reqociC 
of  her  friends)  to  New- Euj; land. 


The  Case  of  Ashley  and  Simons}  tb& 
Jew,  quoted  in  the  foregoing  Txial. 

Henry  Simons,  a  native  of  Ostrog  in  Vol- 
hinia,  near  the  Ukraine,  in  Poland,  landed  st 
Harwich  in  Essex,  Augusts,  1751,  from  Hol- 
land, with  one  Hyam  Levi  and  another  Jew; 


*  A  newspaper  published  at  that  time. 

t  Two  justices  went  to  Newgate,  afler  tbe 
verdict,  to  examine  her,  viz.  Mr.  Thomai 
Smith  and  Mr.  Lediard  (two  Westminster  j'js- 
tices).  But  she  said,  she  did  not  cliuse  tu  an* 
swer  them  any  que&tiuns.  See  the  Refutation 
of  sir  Crisp  Uascoyne's  Address  to  the  Livery, 
page  48. 

X  The  Case  of  Ashley  and  Simons,  bein^  a 
very  extraordinary  one,  quoted  in  the  last  trial, 
and  probably  may  again,  on  some  future  oc« 
casion,  we  shall  give  the  indictment,  and  tbe 
affidavits  of  tlie  jurymen,  to  shew  how  a  new 
trial  came  to  be  granted  in  a  criminal  case ;  bul 
previous  thereto,  we  shall  insert  the  eaae  oC 
Simons  and  Godidard,  as  an  introduction  to  il» 
to  render  the  whole  affiur  complete.  Fanmt 
Edition. 


Case  quoted  of  Ashley  and  Simons* 

of  Middlesex 


6S1] 

^ut  before  tliey  were  permUtctl  to  go  od  shore, 
vnere  exAmirif^d  by  ibe  ])ro{}er  officer,  anil  ou  a 
belt  round  Siruotib'H  bt^dy,  with  n  {turse  fasleneU 
to  it,  were  found  a  br^e  f)i]anUty  of  tincati, 
iriili  which  he  was  fiermiited  to  pass  to  Loo- 
lloo  ;  Qiid  afler  slaying  some  days  to  that  city, 
in  order  to  hoy  ^ooda,  he  set  out  iu  hi»  PohsU 
dresii,  ou  the  '28th  for  Bristol,  to  ti^ffic  there. 
Tbe  first  oii^ht  he  reached  Crantbrd  bridge, 
(beyond   tlouudo^v)  \n  Middlesex,  and  pot  up 

tbe'VVhile-Hart  ion,  kejU  liy  one  (Juddard  ; 
vbere  Simons  ordered  some  bread,  hutter,  and 
beer  for  flupper,  and  Itien  told  the  people  of  the 
lOut^e  in  Ibe  best  maimer  be  could  (tor  he  spoke 
Very  bad,  if  anyi  Engli»li)  thai  he  wanted  a 
lodginff,  and  would  pay  tor  it;  and  shewed 
them  his  arms  and  bosom,  that  he  was  cleott, 
and  pullt'd  out  money,  to  shew  ihey  need  aot 
fear  iheir  reckoning  ;  whereupon  a  bed  was  or* 
dered  for  bim  ;  and,  being*  faiig-ned.,  he  went 

rly  to  bed,  and  the  maid  locked  his  chamber 
4oor;  but  very  early  in  Ibe  loorniug  he  wai 
xobbed  of  tire  hmidred  and  fifly-four  ducals, 
by  two  men,  who  held  a  knife  to  his  throat, 
aod  tbrf^atene<l  tn  kill  hitn  if  he  made  a  noise. 
On  coming  down  stairs  that  morning  he  com* 

ebuDcd  heavily  of  bis  being*  robbed  and  ruined, 
lit  was  only  luugbed  at  and  ritlicuted  by  the 
•errants  of  the  houses  on  which  he  returned 
{tennytesti  In  London;  and  acquainting*  some 
friends  of  it,  ihey  got  a  warrant  to  appr^liend 
Goddard  for  rubbinf^  hiiu  ;  but  on  goin^  down 
to  take  Goddard,  found  be  was  gone  out  of  ihc 
way  In  avoid  being  apprehended  j  but  be  sur- 
rendered against  the  sessions  ;  and  at  the 
Old-Badey  in  1751,  in  ahleiman  Cokayne^s 
mayoralty,  Goddard  was  indicted,  for  ^^  that 
l)e,  in  fiis  own  dwelling-chouse,  on  lleory 
Siinooa  did  make  an  astault,  putting  him  in 
corporal  fear,  ^c.  and  stealing  from  tiim  one 
Jeaiber  girdle,  value  one  penny,  and  tivo  bun* 
drecl  and  ti fly -lour  pieces  of  foreign  coJo, 
mailed  ducatji,  value  ^250L^^  Simons  iwore« 
tbat  Goddard  was  one  of  the  two  men  that 
came  into  bia  chain  her,  took  hold  of  him  in 
^iiedt  aud  Assisted  in  the  robbing  of  him ;  but 
OD  the  evidence  of  Gmldard's  niece,  bis  ser?auts 
la  the  house,  one  Thomas  Ashley,  a  gardener,* 
and  several  neighbouring  gentlemen  and  ion- 
keepers  appearing,  and  giving  bim  a  good 
character,  he  was  acttuitted. 

U[)ou  Goddard's  acquittal,  be  (that  Sep- 
tember sessions)  preferred  a  bill  of  iuifictment 
at  Hicks'ii  hall  aguinst  Simons  ^br  peijury^  in 
swearing  an  iutbrmalion  before  justice  Chani- 
berlayne,  fur  a  robbery  against  the  said  God- 
dard; %vbicb  bill  was  found  by  the  grand  jury 

*  This  Thomas  Ashley,  the  ganleiier,  a  wit- 
ness for  Goihlard  on  his  trial,  viu^  himself  tried 
J  a  April  175^,  in  alderman  Wmter  bottom's 
maytiratty,  for  perjurv*  tor  the  etidVnce  he 
gave  at  that  trial,  amf  was  found  guilty^  aud 
'  to^  Hand  once  in  the  pillory  at  the 
house  ;^»te  fWr  one  hour,  to  be  im* 
for  twelve  months,  after  wlt«ch  to  be 
tfitiffported  for  sevea  years*    Former  Edition. 


A.  D.  1754, 


Whereupon  a  warrant  waa  ob* 
tained  from  sir  Crisp  GascoyuCf  alderman  of 
L'>ndon,  for  apprehending  bim  in  London, 
wbicli  warrant  lay  dormant  till  October  7  fol* 
lowing-,  though  be  was  publicly  seen  about  '] 
London,  asking  alms  in  his  Poli^ih  dtess,  and 
had  charity  collected  for  bim.  Ou  October  0, 
Simons  set  out  for  flarwich,  in  order  to  get 
over  to  Holland,  witli  a  mere  triHe  in  his  pocket 
(poor  Jews  paying  nothing  for  iheir  passage) 
iu  bia  way  hotue  to  Poland  ;  how  he  was  ap« 
prebendeJ  and  brought  to  trial  by  Mr«  Jatues 
Ashley  for  a  misdemeanour,  will  appear  afler- 
uards.^ — In  the  mean  lime,  it  may  be  sufficient 
to  men  lion,  that  some  friends  of  8imons  re- 
moved the  indictment  against  him  for  peijury, 
by  Certiorari,  into  the  court  of  Ring*s- bench ^ 
at  Westminster ;  where  on  the  10th  of  Decern* 
ber,  1751,  he  was  tried  for  perjury  by  a  special 
jurv  of  gentlemeo  of  the  county  of  Middlesex, 
aad  acquitted. 

The  warrant  for  apprehending  Simons  on 
this  charge  of  perjury  lay  dormant  (ai  before- 
mentioned)  in  Goddard's  solicitor's  haods, 
till  October  7,  when  it  was  called  for  bv 
Mr,  James  Asfldey,  an  acquaintance  of  Gou-* 
dard^s,  who  saw  Simons  on  the  road  near  II lord 
in  Essex,  on  the  (Jth* — ^Tfiia  warrant,  on  the 
perusal  of  it,  being  found  for  London  ooty,  the 
words  *■  Essex  and*  were  added  to  it,  lo  nmke  it 
of  force  both  in  E^ex  and  London  ;  and  with 
this  warrant  Mr.  Ashley  set  out,  »ilb  Mr. 
Newman,  and  apprehnuled  Bimona  near 
With  am  in  Essex « and  brought  him  to  C  helms- 
fordt  where  it  was  discovered,  thai  sir  Crisp 
Gascoyne  was  no  justice  of  the  peace  for 
EssejE ;  and  therefore  the  aj^prehending  Simuna 
ou  that  warrant  in  Essex  illegal ;  however,  the 
warrant  (a tier  erasing  ^  Essex  and')  was  backed 
by  the  Rev.  Mr.  Tindall,  a  justice  of  the  peace 
for  the  county  of  Essex  (on  alderniau  Gas- 
coy  ne's  hand  being  proved),  though  Mr.  Tin- 
da'll  dechaed  commiitintf  him,  but  advised 
Ashley  to  carry  bim  to  the  original  jurisdic* 
tion :  whereupon  Simons  wascarried  to  LondODi 
mod  committed  to  New  l^rison  on  the  charge 
ai^aiust  hiai  of  perjury  ;  and  whilst  there,  Air* 
Ashley  lodged  a  detainer  against  him,  for 
putting  into  his  pocket,  at  the  Suraceu^s  btfad 
inn  in  Chehnsford,  three  pieces  of  foreign  gold| 
called  ducats,  with  an  intent  to  charge  the  said 
Ashley  with  a  rubbery.  However,  affcer 
Simons**  acquittal  of  the  perjury,  he  was  bailed 
out  on  ylshley's  detainer  ;  and  at  the  Ijent  as- 
sizes at  Chelmsford  in  Essex,  March  1^^  1759»  < 
the  trial  of  Simons  came  ou  before  Mr.  Justice 
Foster,  on  the  following  indictment. 

JGisr^.    The   Indictment  sets  fbith,  *  That 

*  Henry  Simons,  on  the  51  h  of  8e|iteovber,  ia 

*  tbe  S5lh  yeaf  of  bis  majusty's  rifign,  did,  in 

*  form  of  law,  before  liicbard  ChaTtil>erlayne, 

*  esq.  one  of  his  majesty's  justices  of  tbe  peace 

*  tor  the  county  of  Middlesex,  make  his  infbr- 

*  matinu  in  writing,  by  which  he  did,  amongirt 
(  other  things,  charge  and  accuse  ooe  Joseph 
■  Goddard,  and  one  other  person,  by  tbe  de- 

*  ficriptioD  of  another  person  tinknowo,  of  the 


C83] 


27  GEORGE  11. 


Trial  (>f  Elizabeth  Canning  .•— 


[684 


*  crime  of  felony  and  robbery,  to  wit,  That  the 

*  said  Joseph  Goddard,  and  tlie  same  person 

*  unkDOwn,*had  lately  before  felonioasly  stolen 

*  and    carried  away  from  the    said    Henry 

*  Simons,  in  the  dvrelling- house  of  the  said 

*  Joseph    Ooddard,    five   hundred    fitly-foar 
,  *  ducats. 

*  Count  I.    That  the  said  Henry  Simons, 

*  wickedly  devisin^^  to  rex  and  aggrieve  one 

<  James  Ashley,  of  London,  merchant,  on  thei 

*  8th  of  October,  in  the  same  year,  with  tbrc^ 
'  and  arms,  at  Chelmsford,  in  the  county  of 

*  Essex  aforesaid,  did,  secretly  and  subtilly, 

<  put  and  convey  into  the  right-hand  pocket  of 

*  the  coat  which  the  said  James  Ashley  had  on 

*  and  wore,  three  pieces  of  foreign  coin  of  gold 

<  called  ducats ;    and  the  said  Henry  Sionons 

*  did  afterwards,  in  the  presence  of  divers  of 

*  his  majesty's  subjects,  falsely  charge  and  ac- 

*  cuse  the  said  James  Ashley,  that  he  was  the 

*  same  person,  who,   with  the   above-named 

*  Joseph  Ooddard,  was  so,  as  aforesaid,  sup- 

*  nosed  to  have  committed  the  felony  and  rob- 

*  oery  above  specified,  and  to  have  stolen  and 

*  carried  away  the  said  five  hundred  and  fifly- 

*  four  ducats  from  the  said  Henry  Simons, 

*  with    mtentioo  unjustly  to    cause  the   said 

*  James  Ashley  to  be  apprehended,  and  to  have 

*  it  believed,  that  he  was  the  same  person,  who, 

*  with  the  said  Joseph  Ooddard,  was  so,  as 

<  aforesaid,  supposed  to  have  committed  the 

*  felony  and  robbery  aforesaid. 

<  II.  That  the  said  Henry  Simons,  on  the  said 

*  8th  of  October,  at  Chelmsforid  aforesaid,  fur- 

*  ther  wickedly  intending  to  aggrieve  the  said 

*  James  Ashley,  did  privily  and  subtilly,  put 

*  and  convey  into  the  right-hand  pocket  of  the 

*  coat  which  he  then  wore,  three  other  pieces 

*  of  foreign  gold  coin,  called  ducats ;  and  the 

<  said  Henry  Simons  did  afterwards  falsely 

*  charge  and  accuse  the  said  James  Ashley, 

*  that  he  had  feloniously  taken  from  him  the 

*  said  Henry  Simons,  the  same  three  ducats 

*  last  mentioned,  and  divers  other  ducats,  with 

*  intention  to  cause  it  to  be  believed  and  sus- 

*  pected,  that  the  said  James  Ashley  had 
«  been  guilty  of  felony  ;  and  to  cause  him  to 

*  be  apprehended  and  arrested  for  the  same. 

Mil.   That  the  said  Henry  Simons,  on  the 

*  same  day  and  year  last  aforesaid,  at  Chelms- 

<  ford  aforesaid,  with  force  and  arms,  did  make 

*  an  assault  upon  the  said  James  Ashley,  and 

*  into  the  right-hand  pocket  of  the  coat  which 

*  he  then  had  on  and  wore,  three  other  pieces 

*  of  foreign  gold  coin,  called  ducats,  he  the  said 

*  Henry  Simons  did  then  and  there  privily,  and 

*  without  the  knowledge  of  him  the  said  James 
'  Ashley,  unlawfully  put  and  convey,  and  cause 
'  to  be  put  and  conveyed,  with  a  most  mali- 

*  cious,  wicked,  and  cruel  intention,  then  and 

*  there  falsely  to  charge  and  accuse,  and  to 

<  cause  it  to  be  thought  and  believed,  that  the 
«  said  James  Ashley  had  robbed  him  the  said 

<  Henry  Simons  of  the  same. 

*  IV.   That  the  said  Henry  Simons,  od  the 

<  game  day  and  year  last  above-mentioned,  with 

<  ftro«  and  armsi  at  Chelmsford  alorenid, 

8 


*  upon  the  said  James  Ashley  did  make  an  as- 

<  sault,  and  into  the  right-hand  pocket  of  the 

<  coat  which  the  said  James  Ashley  then  and 
'  there  had  on  and  wore,  three  other  pieces  of 

<  foreign  gold  coin,  called  ducats,  did  privily, 
'  and  without  the  knowledge  of  liim  the  said 
'  James  Ashley  unlawfully  put  and  convey,  and 

<  cause  to  he  put  and  conveyed ;  and  that  be 
'  the  said  Henry  Simons  did  afterwards,  theo 

*  and    there,    most    falsely   and    maliciously 

<  charge  and  accuse  the  said  James  Ashley 
'  with    having  robbed    him  the  said  Henry 

<  Simons  of  the  said  three  ducats,  with  inteat 

<  unjustly  and  wrongfully  to  subject  the  siid 

*  James  Ashley  to  the  pains  and  penalties  ii* 

<  ilicted  by  the  laws  of  this  kingdona  fur  nek 

*  like  offences.' 

To  this  indictment  Henry  Simons  pkaUi 
Not  Guilty. 

Simons  had  before  moved  the  Court  sf 
King*s-bench  for  a  special  jury,  which  werait 
follows : 

The, Special  Jury. 

John  Morley,  of  Halstead,  esq. 
John  Godsalve,  of  Great  Baddow,  es<|. 
Robert  Clarke,  of  Little  Baddow,  esq. 
Daniel  Stratton,  of  Bromfield,  esq. 
John  Olmius,  of  Boreham,  esq. 
George  Dodsoo,  of  Shenfield,  «>8q« 
Thomas  Brograve,  of  Great  Baddow,  esq^ 
John  Hornby,  of  Ingatestone,  esq. 
Samuel  Ruggles,  of  Booking,  esq. 
Peter  Godfrey,  of  Woodford,  esq. 
Poulton  Allen,  of  Barking,  esq. 
Henry  Hall,  of  Hutton-hall,  esq. 

And  on  the  evidence  of  Mr.  Ashley,  Mr. 
Newman,  Isaac  Hubbard  the  constable,  Ricb- 
ard  Taylor,  and  others,  he  was  convicted  after 
a  trial  of  twelve  hours;  the  jtiry  going  out 
about  nine  at  night,  and  not  returning  till  tso 
in  the  morning. 

Henry  Simons  thus  found  guilty,  and  beip^ 
upon  bail,  his  friends,  instead  of  bringin}^  liin 
into  court  within  the  four  first  days  of  the  next 
Easter  term,  which  bi^an  the  l.'>th  of  April, 
according  to  the  condition  of  the  recognizaocf, 
moved  tlie  Court  of  King's-bench,  that  jiiilg- 
ment  might  be  respited  ;  and  prayed  for  a  rule, 
that  the  prosecutor  mi^ht  shew  cause,  why  > 
new  trial  should  not  he  granted:  which  tJie 
Court  did  not  then  come  into,  there  not  bfin^ 
then  sufficient  reason  shewn.  Whereupon  tbs 
following  affidavits  were  made  soon  after  : 

The  Jurymen's  ArriDAvrrs  at  large. 

1.  John  Morley,  of  Halsted,  in  the  coooty 
of  Essex,  esq.  saith,  he  served  on  the  jurjf  i^ 
the  trial  of  this  cause,  at  the  last  assizes,  beldi 
&c.  as  foreman  of  the  said  jury  ;  and  this  ^^ 
ponent  on  the  evidence  given  on  the  said  trisk 
was  of  opinion,  that  the  df  tendant  did  put  tbre* 
ducats  into  the  prosecutor's  pocket ;  butdkl  D€t 
find  the  same  was  done  with  any  mtent  wl^ 
soever. — ^The  deponent  saith,  the  jury  ^ 
agree  to  give  their  verdict,  that  the  ' 


i] 


Case  quoted  ofAsfilei/  and  Slmmt'^* 


A-  D,  lT5lv 


iras  guilty  orpulliiif^  the  said  three  ducaU  into 
tht;  prosecutor's  jmcket^  liy  reason  it  was  sworn 
io  that  t  fleet  J  aiiii  Ruch  was  the  verdict  in- 
ienited  to  be  ^iven  :  bnt  tlie  deponent  batli 
lately  i^-eii  iutbrnad,  that  the  veiilict  of  the 
fury  ^et'orded  fiiiilii  the  defendaiit  goilty  upon 
,the  thinl  count  in  the  indictment,  which,  the 
ilepntierit  is  att«o  iiilbrmed,  is  findiu^  the  deftfn- 
daiit  guilty  (»r  puttiDg  thesuid  three  ducats  into 
II le  pro^tulor^i  pocket  with  a  most  raalicious, 
irkkeilf  and  cruel  intention,  falsely  to  charge, 
ind  cause  it  to  be  bpUeveit,  thai  the  prosecutor 
%mii  n*hbwl  the*  ilefendanlof  thesaid  three  du- 
,eats :  whereas  this  ilepanenland  the  rest  of  the 
ji^ry,  riid  oot  Irnd  the  ^umt  was  done  with  any 
such  intent^  or  any  intent  whatsoever.^-The 
deponent  {»aith,  that  the  said  verdict,  as  it  now 
'  StandSf  IS  contrary  to  the  intent  dI  the  deponent ; 
and  therelure  tte  depotieut  halh  made  this 
«ffidavit. 


£.  John  Gadsahe,  gT  Gr^^ii  Baddow,  m  the 
county  ot  E^sex,  esq.  saith,  he  serreil  on  the 
jury  at  the  trial  of  this  cause,  cVc,  That  the 
deponetit,  on  the  eviilence  g:iven  to  bira  on  the 
said  iridl^  was  of  opinion^  That  the  defeoclant 
did    put  three    ducais    into  the    prosecutor's 

rcket ;  but  the  same  was  not  done  with  intent 
cliarge  the  prosecutor  with  felony,  or  rob- 
Ibcry,  or  other  oftence^  wjtli  any  evil  intent. — 
The  deporiept  sai^h,  That  the  jury  did  agree 
Io  ^iTe  a  verdictf  that  the  defendant  was  guilty 
l»f  putting  the  said  three  ducats  into  the  prose- 
euior*s  pocket,  by  reason  it  was  sworn  to  that 
f^flect ;  and  such  verdict  was  intetided  to  be 
griven  :  the  deponent  apprehended,  that  he  and 
the  rest  of  the  jury  bad  given  such  ? erdict : 
lUt  the  deponent  hath  since  been  infornsetl,  tliat 
Uie  verdict  recorded  finds  the  defendant  g'uiltjr 
|»n  the  third  count  in  the  indictment,  which, 
Ifae  deponent  is  also  inJcirmrd,  is  linding"  the 
defendant  g'uilty  of  putting  the  said  three  du> 
cats  into  the  ptosecutor^ft  pocket,  with  a  moat 
B^licious,  wicked,  and  cruel  intention,  falsifty 
la  char^e^  and  cause  it  to  he  beheved,  that  the 
brosecutur  hafi  robbed  the  said  defeudant  of  the 
Baiil  three  ducats:  v%hereas  the  deponent  and 
the  rest  of  the  jury  did  not  find,  that  the  same 
yr^LS  done  with  such  intent,  or  any  intent  vihat- 
liocter^Tiie  deponent  saith,  That  the  said 
iverdicti  m  it  now  stands,  is  contrary  to  the 
»irt!»'dict  then  tjiven  in  court, — Naitb,  he  could 
tiot  reat  siatit^fteil  with  sucij  verdict,  aiid  there- 
iare  the  deponent  made  this  uiiidavit, 

3,  Robert  Ciarke^  of  Little  Baddow,  in  the 
«ounty  Mf  £$^x,  esiq.  saub,  That  he  served  on 
tbejury  at  the  trial  of  thi^  cause  last  a:«isizcs, 
helJai'Chehmford,  in  the  county  of  Essex; 
and  lliat  he  was  of  opiuioo,  that  the  defeudatit 
pui  three  ducais  into  ihe  pocket  of  the  prose- 
cutor; but  that  thestiiue  was  not  done  with 
Intent  to  charire  ihe  prosecutor  with  robbery, 
or  ft'luiiy,  or  any  ottier  oHencc,  or  with  any 
evil  intent,  Thfe*depiii]L-otsaitli»  That  the  jury 
did  ot^ree  to  ^ive  their  ferdict,  that  the  dc- 
fci^ant  WAS  guilty  of  putting'  ihe  icud  throe 


doiMils  into  the  prosecutor's  pocket,  by  reason 
it  was  sworn  to  that  effect ;  and  such  was  the 
verdict  intended  to  be  g^iven  i  that  the  deponent 
apprehended  he  and  the  rest  of  the  jury  had 
If iveu  such  verdict ;  but  the  deponent  hatn  been 
informed,  that  the  verdict^  as  taken  down  and 
recorded,  finds  the  defendant  guilty  upon  the 
third  count  in  the  indictment,  which,  the  de- 
pnnent  is  iutbrmed,  is  iindiug-  the  ticftiidant 
guilty  of  putting  the  said  three  ducats  into  the 
prosecutor's  pocket,  with  a  most  rvvahcious^ 
wicked,  and  cruti  intention,  falsely  to  charge, 
and  accuse,  and  cause  it  to  be  thou^rht  and  be- 
lieved, that  the  prosfcutur  bad  robbed  the  said 
defendant  of  the  said  three  ducats:  whereas  the 
deponent  and  the  rest  of  the  jury  did  not  tind* 
that  the  same  was  done  with  such  intent,  or 
any  intent  whatsoever, — ^The  deponent  sailb, 
That  the  verdict,  as  it  stands,  is  contrary  to  the 
intent  of  tlie  deponent. — The  deponent  saith« 
he  could  not  in  bis  conscience  rest  satisfied 
with  such  verdict :  therefore  the  deponent  made 
this  affidavit  to  explain  what  verdict  he  did  in- 
tend to  find. 

4.  Daniel  Strottont  of  Bromfiebl,  in  the 
county  of  Essex,  esq^  saitb,  he  starved  on  the 
jury  at  the  trial  of  this  cattse,  at  the  last  as* 
sizes,  held,  &c.  That  this  dejiODent,  on  the 
evidence  given  to  him  on  the  said  trial,  was  ot' 
opinion,  that  the  defendant  put  three  ducats 
into  the  pro^ecutor^s  pocket ;  but  that  the  same 
was  not  dtuie  with  intent  to  charg-e  theprose> 
cutor  with  robbery,  or  felony,  or  any  other 
o/lence,  with  any  evil  intent. — The  deponent 
sailh,  That  the  jury  did  a^rce,  that  the  de- 
ft^ndant  was  guilty  of  putting'  the  said  three 
ducats  into  the  prosecutor's  pocket,  by  reason 
it  was  sworn  to  that  eflect ;  and  such  was  the 
verdit't  intemled  to  be  given.  The  deponent 
apprehended  he  and  the  rest  of  the  jury  had 
l^ivtfn  such  verdict :  but  the  defiOnenthath  late- 
ly been  informed,  that  the  verdict  recorded 
nnds  the  delendani  fifuillv  on  the  third  count  in 
the  indictment,  which,  the  deponent  is  aUn  in- 
formed, is  tiudingf  the  defendant  guilty  of  put- 
ting the  said  three  ducats  into  the  prosecutor's 
pocket,  with  a  most  malicious,  wi«  ked,  and 
cruel  initntiont  falsely  to  charge,  and  cause  to 
be  bebrvcdj  that  the  prosecutor  had  robbed  the 
defendant  of  the  said  three  ducats:  whereaa 
the  deponent,  and  the  re  jl  of  the  jury,  did  not 
find  the  same  was  done  with  such  iiiteut,  or 
any  intent  whatsoever.  The  dvponent  saith, 
the  verdict,  as  it  now  stands,  is  contrary  to  ihe 
intent  of  the  df-ponent,  8aith,  he  could  not 
rest  satisfied  with  such  verdict ;  and  tlierefore 
the  de^toaent  made  this  affidavit. 

5.  John  Otmhtgf  of  Boreham,  in  the  county^ 
of  Essex,  e?q,  saith,  he  served  on  the  jury  at 
the  trial  of  this  cause,  &c.  That  ihii  depo- 
nent, on  the  evidence  given  mi  the  said  trial, 
was  M'  opinion,  That  the  defendant  did  put 
three  ducats  into  the  prosecutor's  pocket;  but 
the  same  was  not  done  with  intent  to  charge 
the  prosecutor  with  robbery,  or  felony,  or  any 


€87] 


27  GEORGE  II. 


Trial  qfEUzubeth  Canning  .-•— 


[668 


•ther  offence.  Stith,  That  the  jury  did  tgree, 
that  the  defendwut  was  guilty  of  puttiop  the 
Mid  three  ducats  in  the  prosecutor's  p«)cket,  hy 
reason  if  was  sworn  to  that  effect;  and  such 
only  was  the  Terdict  intended  to  be  ^ven.  The 
deponent  apprehends  such  verdict  was  given  : 
but  the  deponent  hath  been  informed,  that 
the  verdict  as  recorded,  finds  the  defendant 
guilty  of  putting  the  said  three  ducats  into 
the  prosecutor's  pocket,  with  a  most  mali- 
cious and  cruel  intention,  falsely  to  charge, 
and  cause  it  to  be  thought  and  l>elieved,  that 
the  prosecutor  had  robbed  the  said  defendant 
of  the  said  three  ducats :  whereas  the  depo- 
nent and  the  rest  of  the  jury  did  not  find  the 
same  was  done  with  any  ill  intent  whatsoever. 
The  deponent  saith,  when  the  jury  came  into 
court,  there  was  such  a  crowd  and  noise  within 
and  without  the  court,  that  the  deponent  could  | 
not  liear  distinctly  what  the  judge,  who  tried 
the  cause,  said  or  explained  to  them.  Saith, 
Chat  he  did  not  understand  the  nature  of  the 
third  count  of  the  said  indictment.  Saith,  that 
the  verdict,  as  it  stauds,  is  contrary  to  the  in- 
tent of  this  deponent.  The  deponent  saith,  he 
could  not  in  his  conscience  rest  satisfied  with 
such  verdict ;  and  therefore  did,  together  with 
Peter  Godfrey  and  Puulton  Allen,  esqrs.  two 
others  of  the  jury,  lately  wait  on  the  judge, 
who  tried  the  cause,  and  explained  to  him  what 
verdict  they  intended  to  find :  and  also  ac- 
i|aainted  him,  that,  by  reason  of  the  noise  in 
coart,  the  deponent  could  not  understand  the 
judge's  explanation  of  the  said  third  count  of 
the  said  indictment,  or  the  nature  thereof. 

6.  Georgg  Pocboa,  of  Shenfield,  in  the 
county  of  Essex,  esq.  saith,  he  served  on  the 
jury  at  the  trial  of  this  cause,  at  the  last  as- 
sizes, held,  &c.  That  this  deponent,  on  the 
evidence  given  him  on  the  said  trial,  was  of 
opinion,  that  the  defendant  put  three  ducats 
Into  the  prosecutor's  pocket ;  but  the  same  was 
not  done  with  intent  to  chai^  the  prosecutor 
with  robbery,  or  felony,  or  any  other  offence, 
with  any  evd  intent.— The  deponent  saith,  the 
jury  dicf  agree  to  give  their  verdict.  That  the 
defendant  was  guilty  of  putting  three  ducats 
into  the  prosecutor's  pocket,  by  reason  it  was 
•worn  to  that  effect ;  and  such  was  the  ver- 
dict intended  to  be  given :  the  deponent  appre- 
hended he,  and  the  rest  of  the  jury,  had  given 
such  verdict:  but  the  deponent  had  lately  been 
informed,  that  the  verdict  recorded  finds  the  de- 
fendant guilty  on  the  third  count  in  the  indict- 
ment, which,  the  deponent  is  also  informed,  is 
finding  the  defendant  guilty  of  putting  the  said 
three  ducats  into  the  prosecutor's  pocket,  with 
a  most  malicious,  wicked,  and  cruel  intention, 
falsely  to  charge,  and  cause  it  to  be  believed, 
that  the  nrosecutor  had  roblied  the  said  de- 
fendant ot  the  said  three  ducats :  whereas  the 
deponent,  and  the  rest  of  the  jury,  did  not 
find  the  same  was  done  with  such  intent,  or 
any  intent  whatsoever.  And  the  deponent 
laith,  that  when  the  judge,  who  tried  the  cause, 
did  explain  to  the  deponent,  and  the  rest  of  the 


jury,  the  nature  of  the  indictment,  the  depo- 
nent did  reply.  We  find  guilty  of  no  intent) 
but  cannot  say  whether  the  judge  heard  hin. 
The  deponent  saith,  that  the  verdict,  as  it  bow 
stands,  is  contrary  to  the  intent  of  this  depo- 
nent. Saith,  he  could  not  rest  satisfied  with 
such  verdict ;  and  therefore  made  this  alB* 
davit. 

7.  Thomas  Brograve,  of  Great  Baddow,.  ii 
the  county  of  Essex,  esq.  saith,  That  he  aw- 
ed on  the  jury  at  the  trial  of  this  (Miiae,  at  Ike 
last  assises,  held  at  ChelmsfonS»  fortbeooiHly 
of  Essex ;  and  this  deponent,  on  the  eyidnn 
given  to  him  and  them  on  the  said  trial,  maf 
opinion,  that  the  defendant  did  pot  ibnt 
ducats  into  the  pocket  of  the  prosecutor}  kt 
that  the  same  was  not  done  with  an  intirt  H 
prosecute  the  said  James  Ashleyl  for  fthn 
or  robbery :  the  defionent  apprehended  be  ail 
the  rest  uf  the  jury  had  given  such 
but  the  deponent  hath  lately  been  ii 
that  the  verdict  of  the  jury,  as  taken  ihnm  i 
recorded,  finds  the  defendant  guilty  opoa  <\m 
third  count  in  the  indictment,  which,  tbii  dt- 
ponent  is  also  informed,  is  findings  the  i 
ant  guilty  of  putting  the  said  three  da 
the  prosecutor's  pocket,  with  a  most  n 
wicked,  and  cruel  intention,  falsely  to  charn 
and  accuse,  and  cause  it  to  be  thought  and  M 
believed,  that  the  prosecutor  had  robbed  tkt 
said  Henry  Simons  the  defendant  of  tbenid 
three  ducats:  whereas  the  deponent  aadtfci 
rest  of  the  jury  did  not  find,  that  the  sane  WM 
done  with  intent  as  aforesaid.  The  deponcal, 
saith,  that  the  said  verdict  as  it  now  stands,  ii 


contrary  to  the  true  intent  of  this  depoDSOt: 
therefore  the  deponent  maketh  this  affidavit  ta 
explain  what  verdict  they  did  intend  to  find. 

8.  Joseph  Ilomhyy  of  Ingatestone,  in  tk 
county  of  Essex,  esq.  saith,  he  served  oa  tk 
jury  at  the  trial  of  this  cause,  &e.  And  Ikt 
it  appeared  to  the  deponent,  on  the  evidcaee 
given  on  the  said  trial,  that  the  defendant  Ai 

Eut  three  ducats  into  the  prosecutor's  pocket; 
ut  on  the  evidence  given  to  the  deponent  bf 
Crisp  Gascoyne,  esq.  alderman  of  Londos,^ 
appeared  to  the  dc[M>nent,  that  the  seme  wii 
not  done  with  a  malicious,  wicked,  and  crnri 
intention,  falsely  to  charge,  and  cause  it  lo  k 
believed,  that  the  prosecutor  had  robbed  tk 
defendant  of  the  said  three  ducats,  or  «idt 
any  evil  intent.  The  deponent  saith,  ikt 
the  jury  agreed  to  give  their  verdict,  Tbattk 
defendant  was  guilty  of  putting  the  said  thrtc 
ducats  into  the  prosecutor's  pocket,  by  resita 
it  was  sworn  to  that  effect ;  and  snch  was  tk 
verdict  intended  to  be  given  :  and  the  depoocit 
apprehended,  that  such  verdict  was  givft. 
The  deponent  saith,  that  when  the  juiy  caM 
into  the  court  to  bring  in  their  verdict,  tkn 
was  such  a  crowd  and  noise  in  the  coiui>  tkt 
the  dejionent  could  not  hear  what  the  jn^^ 
who  tried  the  cause,  said  or  explained  to  thcik 
Saith,  he  did  not  understand  the  nature  of  A* 
third  count  of  the  indictment,  for  ths 
aforesaid. 


[r9] 


Case  fuoted  of  Athley  and  Simons, 


A.  a  1754. 


[C90 


9,  10.  Peter  Godfrty,  of  V\'w<!furcJ,  ttml 
el  Htiggia,  ot  Booking,  iti  ihe  county  of 
,  esquires,  severally  make  omh,  Ibai  lliey 
tUy  sened  on  Ihi*  jury  at  the  trial  cif  this 
Cf  lEie  last  asfiizefi,  &c.  and  say,  thai  tlipse 
uenls,  on  the  e?klence  triven  them  on  the 
trial,  were  oi'  opinion,  that  the  defendant 
lid  put  three  ducais  into  ihe  prosecutor** 
cket,  but  the  same  wa»  not  done  with  tateiit 
cbarg^e  the  prosecutor  with  rubber v,  or  fe- 
ny*  or  any  other  offence,  or  aoy  6¥il  intent, 
Tbe  deponents  say^  the  jory  did  agree  to  give 
"beir  verdict,  that  tlie  derendant  was  i^illy  of 
miing  the  .tiaid  lliree  dueala  loto  the  pro&e- 
titors  pockety  by  reasoo  it  was  Kwoni  to  that 
ct — The  deponeiitis  apjireliended,  that  they, 
knd  the  rest  of  Ihe  jury,  had  given  such  ver* 
'ct:  but  the  deponetrts  have  been  Informed, 
bat  the  verdict  of  the  jury,  as  is  record eil, 
the  deteodaot  guilty  on  the  third  count 
the  indictmenti  which,  the  deponenls  are 
«o  informed,  ig  finding  the  defendant  guilty 
jftf  putting  the  said  three  ducats  into  the  pro- 
p^utur^s  pocket,  vi  itU  a  most  malicious,  wicked, 
U)d  cruel  inienlion^  falsely  to  charge,  and  cause 
I  to  be  believed,  that  the  prosecutor  bad  robbed 
the  dt'fendant  of  the  said  three  ducats :  where-^ 
f ,  irbeu  these  deponents,  and  tlie  rest  of  the 
ary  came  into  court,  there  was  such  a  crowd  , 
Mia  Doi^,  that  the  deponents  could  not  hear 
listlnctty  what  the  judge,  wlio  tried  Ihe  cause, 
"  ]  or  explttin&d  to  ihem.  Say,  that  they  did 
understand  the  nature  of  the  third  count 
pt  the  said  indictment,  for  the  reasons  afore* 
Itid  ;  the  deponents  say,  that  the  verdict,  as  it 
M>w  stands,  is  contrary  to  the  intent  and  mean- 
gg  of  th^ti  depooents.  This  deponent,  Peter 
ipdfrey,  far  himself,  fsaith,  he  could  not  rest 
'"  "ed  with  such  verdict;  therefore  this  de- 
did,  lugether  with  Johu  01  mi  us  and 
on  Allen,  ee quires,  two  others  of  the 
Iproi'V,  wail  on  the  Jud^e  who  tried  the  cause, 
nd  explained  to  him  viliat  verdict  they  intend- 
I  to  fiod ;  and  also  acquaint  him,  that,  by  reft- 
^n  of  the  noise  m  the  couH,  this  deponent 
aid  not  underiitand  thejud|^e*s  explanatioD  of 
said  third  count  of  the  said  indictment,  or 
be  nature  thereuf. 

11.  FouUon  AlUn^  of  Barking,  in  the  county 

^  £sseX|  esq.  saitbi  that  the  deponent  served 

\n  Ibe  jury  at  the  trial  of  this  cause,  &c.    That 

he  depunent,  on  Ihe  evidence  given  to  him  on 

he  said  trial,  wa^  of  opinion,  that  the  defen- 

taut  did  put  three  ducats  into  the  prosecular's 

^•cket;  but  the  same  was  nui  done  with  intent 

p  .cbirge  wiih  robbery,  or  felony,  or  auy  other 

ifiboce.    The  deponent  saith,  that  the  jury  did 

pgree  to  give  a  verdict,  that  the  defendant  was 

f^ilty  of  putting  the  said  three  ducats  into  the 

rprosecu tor's  pockety  by  reason  it  was  sworn  to 

4bat    effect. — The  deponent  apprehended,  lje 

pud  Che  rest  of  the  jury  had  given  such  a  ver* 

^Cl  :  but  the  deponent  hath  lately  been  inform* 

^,  that  the  verdict,  as  is  recorded,  finds  the 

gi^fendiint  guilty  on  the  third  count  in  tlie  in- 

HiGtiiient,  rthich^  the  deponent  is  also  iofiurmed, 


is  finding  the  defendant  guUty  of  putting  Ihe 
said  three  ducats  into  the  prosecnior^s  pocket, 
with  a  most  malicious,  vicked,  and  crue)  in- 
tention, falsely  tn  charge  and  accuse,  and  cause 
In  be  believed,  that  the  prosecutor  had  r,obb<dd 
Ihe  said  defendant  of  the  t^aid  three  ducat^: 
whereas  Ihe  deponent,  and  the  real  of  the  jur}', 
did  not  find  the  same  was  done  with  such  in- 
tent, or  any  ill  intent  whatsoever. — Ti»e  depo- 
nent  saith,  when  the  jury  crime  inin  court  to 
give  their  verdit  t,  there  was  t»uch  a  crowd  and 
noise,  that  the  deponent  could  not  hear  dis« 
linclly  what  the  judge,  who  tried  the  cause, 
said  to  them. — The  deponent  saiib,  lie  did  not 
uoderstand  the  nature  of  the  third  count  of  the 
said  indictment,  which  the  deponent  could  not, 
tor  the  reason  aloresaid,  hear  i!ie  judge  explain. 
— The  deponent  saith,  that  the  said  verdict,  as 
it  stands,  is  contrary  to  the  meaning  of  this 
deponent. — The  deponent  saith,  that  he  could 
not  be  satisfied  with  such  verdict:  therefore 
the  deponent  did,  together  with  Peter  Godi'rey 
and  John  Oliaius,  esquires,  two  other  of  the 
jurors,  wait  on  the  judge,  who  tried  the  cause, 
and  explain  to  him  vi h^it  verdict  they  intended 
to  find  ;  a,ud  also  acquaint  him»  th.it,  by  reasjoii 
of  the  noise  in  the  court,  the  deponent  could 
not  understand  the  judge's  explonatiou  of  the 
said  third  coudI  of  the  said  indictment* 

n.  Henty  HqH,  of  Hutton  Hall,  in  the 
county  of  B(»sex,  esq.  saith,  he  served  on  the 
jury  at  the  trial  of  tliis  cau^,  Ihe  last  assizes, 
&c*  That  the  deponent,  on  the  evidence  to  hini 
given  on  the  said  triat,  was  of  opinion,  that  tlie 
defendant  did  put  three  ducaia  into  the  pro9«- 
cutor*s  pocket,  but  the  saiifie  vias  not  done  with 
lutent  to  oharge  tbe  prosecutor  with  robbery, 
or  felony,  or  any  other  offence,  with  auy  evil 
intent.^The  deponent  saith,  thai  the  jury  did 
agree,  that  the  defendant  was  guilty  of  putting 
tbe  said  three  ducats  intothe  proseciitor*^  packet, 
as  sworn  to  that  effect ;  which  was  the  verdict 
intended  to  be  given.  Tbe  dejionent  appre- 
hended, he  and  the  rest  of  the  jury  had  given 
such  verdict;  but  the  deponent  halh  been  in- 
formed, that  the  verdict  recorded  finds  the  de- 
fei^aut  guilty  on  the  third  oouat  in  the  indict* 
ment,  which,  the  deponent  is  also  informed,  is 
jinding  the  defendant  guihy  of  putting  the  said 
tbree  ducal*  into  the  prosecutor's  pocket,  WJlli 
a  most  malicious,  wicked,  and  cruel  intention, 
tafsely  to  charge,  accuse,  and  cause  it  to  be 
believed,  that  the  prosecutor  had  robbed  the 
defendant  of  ilie  said  three  ducats:  tthereas 
the  deponent,  and  the  rest  of  the  jiiry^  did  not 
find  the  same  was  done  with  any  such  intent, 
or  wiLli  any  intent  whatsoever. — The  dept>nent 
saith,  that  the  haid  verdict  is  contrary  to  the 
intent  of  this  deponent, — The  deponent  saith, 
he  couhl  not  re^t  satisfied  wiih  -such  verdict ; 
and  therefore  he  made  this  affidavit. 

John  Morley,  of  HaUted,  Robert  Clarke,  of 
Little  Baddow,  Thomas  Brograve^  of  Great 
Baddow,  and  John  Oodsalve,  of  Great  Bad- 
dow,  eiqrft^nSworii  U^  of  Aprils  175S,  by 


fl91] 


27  GEORGE  II.         Trial  ofElix.  Canning  .'-^Case  quoted. 


Richard  RajmeDt,  commissioner,  at  their  own 
bouses. 

John  Olmius,  of  Borehtm,  and  Daniel  Strat- 
ton,  of  BromBeld,  esqrs. — Sworn  the  same  day, 
by  the  said  commissioner,  at  the  SSaracen's 
Head  inn,  Chelmsford. 

Georg^  Dodson,  of  Shenfield,  and  Henry 
Ball,  of  Hutton  Hall,  esqrs.^-Sworn  S2d  of 
April,  by  Brown  Chambers,  commissioner,  at 
their  own  houses. 

Poulton  Allen,  of  Barkinflf,  Peter  Godfrey, 
of  Woodford,  and  Samuel  Rugjf^les,  of  Bock- 
ing,  esqrs. — Sworn  2 2d  of  April,  before  judge 
Wright. 

John  Hornby,  of  Ingatestone^  esq.— Sworn 
27th  of  April,  in  court. 

Ad  APFmAvrr  tending  to  prove  the  Jury's  due 
recording  Henry  Simons's  Conviction  in 
public  Ck^urt. 

Cornelius  ^or/on,  of  Red-Lion-street,  Clerk* 
enwell,  in  the  county  of  Middlesex,  solicitor  for 
the  prosecutor  in  this  cause,  maketb  oath,  and 
8aitb,hewaf  present  in  court  when  the  jnry,who 
tried  this  cause,publicly  delivered  their  verdict : 
|he  deponent  saith,  the  account  thereof,  and  the 
^hole  transaction  relating  thereto,  is  hereafter 
impartially  set  forth,  according  to  the  best  of 
the  deponent's  knowledge  and  belief. — First, 
the  deponent  svth,  that  abont  one  of  the  clock 
of  the  next  day,  after  this  cause  was  tried,  the 
jnry,  who  tried  the  same,  having  assembled 
together,  came  into  open  court,  and,  having 
been  called  over,  respectively  answered  to  their 
names :  they  were  askedf  bv  the  associate, 
ivhether  they  did  abide  by  the  verdict  they 
fBfave  his  lordship  in  private?  To  which  the 
foreman  of  the  jury,  or  one  of  them,  answered, 
they  did.  Upon  which  the  associate  replied, 
then  this  is  the  verdict,  you  fiod  the  defendant 

Siilty.  By  which  this  deponent  understood, 
ey  found  the  defendant  ciiilty  generally  on 
the  indictment.  For  immediately  thereon,  the 
honourable  Mr.  Justice  Foster,  who  tried  the 
cause,  got  up,  and  told  the  jury,  that  he  appre- 
hended they  could  not  find  the  defendant  guilty 
of  the  whole  indictment ;  for  that  the  prosecu- 
tor had  not  given  evidence  to  support  the  first 
and  second  count  laid  in  the  indictment :  but 
he  thought  there  was  evidence  to  support  the 
third  count:  and  then  the  said  Mr.  Justice 
Foster  took  great  care  and  pains  to  explain  the 
difference  between  the  several  counts,  and  de« 
clared  it  as  his  opinion,  that,  if  they  found  the 
defendant  guilty  of  the  said  third  count,  they 
should  acquit  him  of  tlie  rest. — Whereupon 
George  Dodson,  esq.  who  was  one  of  the  Jury, 
declared  himself  to  the  Court,  that  they  round 
the  defendant  (Tuiity  of  no  intent,  or  to  that 
eflfect. — ^To  which  the  honourable  judge  replied, 
then  you  must  acquit  him  ;  for  it  is  the  mtent 
constiiuteA  the  oflftnce,  or  to  that  purpose: 
and  recommended  it  to  the  jury  to  go  out,  and 
re-consider  of  their  verdict. — In  answer  where- 
to one  of  the  jury  replied,  My  lord,  we  have 
foaaidtnd  it  u  much  as  we  oould  conaider  it 


— ^The  deponent  saith,  he  believes  that  I 
upon  the  judge  read,  or  ordered  to  be  reM 
said  third  count;  and  asked  the  jury.  If 
believed  the  witnesses  ?  and  some  one  or 
of  them  answering,  they  did ;  the  judge 
gentlemen,  you  must  connect  the  wbd 
dence  together.  Whereupon  the  jur 
peared  to  the  deponent  to  consider  of  wb* 
judge  said  to  them ;  and  in  a  short  time, 
deponent  apprehends,  brought  the  defend 
guilty  of  the  third  count  in  the  indictmen 
acquitted  him  as  to  the  rest:  and  the  i 
recorded  in  that  manner. — The  deponent 
that,  after  tlie  verdict  so  recorded,  thq 
desired  to  hearken  to  it:  the  aaaociali 
Gentlemen  of  the  jury,  you  find  the  dcfi 
guilty  of  the  third  count  in  the  indictiiMi 
acquit  him  of  all  the  rest. — In  answer  to  i 
they  some  one  or  more  of  theoa  aov 
Yes ;  and  withdrew  from  the  bu  aeea 
well  satisfied. — Saith,  he  stood  very  near 
jury,  when  they  delivered  their  verdid 
heard  distinctly  the  whole  that  paaaed  s 
occasion  :  and  the  deponent  does  not  n 
her,  in  his  conscience,  that  there  waa  a 
crowd  or  noise  in  the  court  at  that  lii 
Saith,  that  the  whole  transaction  i 


is  impartially  set  forth,  as  the  depioai 
lieves :  and  that,  if  the  deponent  oaA 
any  mistake  therein,  positively  saith,  it 
by  design :  and  humbly  submits  the 
thereof  to  the  honourable  judge  who  trii 
said  cause.  C.  Non 

Sworn  before       Judge  Foster. 

These  afiidaviu  of  the  jnry  being  obti 
another  application  was  made  to  the  Ca 
King's -bench  ;  whereupon  the  Court 
pleased  to  make  a  rule  for  Mr.  Ashley  Id 
cause,  why  a  new  trial  should  not  lie  gra 
Whicli  being  spoke  to  by  nine  several  co 
who  took  up  the  Court  several  days  i 
hearing,  the  Court  was  pleased  to  adjiH 
new  trial.* 

Accordingly  a  second  trial  came  on  ft 
same  fact,  at  Chelmsford  assizes,  Jul; 
1752,  before  Mr.  Justice  Deunison,  by  a 
cial  Jury,  on  the  same  indictment 

*  <«  Which  (says  J.  Ashley)  is  the  fin 
cedent  of  the  kind  to  any  person  who  hai 
convicted  of  a  criminal  offence."  See  As 
Case  and  Appeal,  page  23.  In  the  sami 
be  adds,  **  In  the  mean  time,  actions  h 
been  brought  (by  Simons)  against  me  (J. 
the  prosecutor,  Isaac  Hubbard  the  com 
Richard  Taylor  and  John  Newman,  on  ac 
of  altering  the  warrant,  and  tliereby  ignoi 
detaining  the  said  Heory  Simons  in  en 
till  the  warrant  was  properly  backed  (by  i 
tice  of  peace  for  the  county  of  Essex, 
cause  was  tried  before  the  lord  chief  j 
I<ee,  at  Guildhall,  London,  July  9,  ) 
when  the  jury  gave  a  verdict  for  200/.  i^ 
me,  (J.  A.)  Richard  Taylor,  and  Joho 
man;  and  the  coon  were  taxed  at  70/."  1 
EditWH. 


r 


Triol  of  Timothy  MufjJ^ 


A.  D.  175S. 


.  The  Trial  of  Timothy  Murphy,*  for  Felony  and  Forgery,  on 
Saturday  the  13th  Day  of  January,  before  the  Right  Hon.. 
Sir  Crisp  Gascoyne,  knt.  Lord-Mayor  of  the  City  of  London, 
tlie  Right  Hon.  the  Lord  Chief-Baron  Parker,  and  others  of 
his  Majesty's  Justices,  &c.  at  Justice-Hall,  in  the  Old-Bailey^ 
for  the  City  of  London  :  S6  Geouge  H.  a.  d.  1753. 


tf  Arr.  CRYER,  make  proclamtti^n. 
|Mr.  Ojrez!  Oyez!  Oyez!  You  good 
a  tbe  city  of  Liondon,  summoned  to  ap- 
thii  day,  to  try  between  our  80?e- 


IM  tbe  kio^,  and  the  prisoner!  that  shall 
^^km  bar,  answer  to  your  names  as  you 
htcidled. 

;  Then  tbe  Jury  were  called  over. 

KffArr.  Set  Timothy  Murphy  to  the  bar. 
\jkfM  done). 

**^.  Arr.    How   sayest   tbon,   Timothy 
A^,art  tbou  guilty  uf  the  felony  whereof 
aiiilisl  indicted,  or  not  guilty  r 
iwMr.  Not  Guilty. 

^fArr.   Culprit,  liow  wilt  thou  be  tried  ? 
mmtr*  By  God  and  my  country. 
^  Art,   God  send  thee  a  good  delirer- 

«« Timotby  Murphy,  the  prisoner  at  the 

ictrken  to  what  is  said  to  you. 

•it  good  men,  who  are  now  called,  and  do 

•ppear,  are  those  that  are  to  pass  between 

wnxwsk  lord  the  king  and  you,  upon 

ifb  and  death ;  if  therefore  you  will  chal- 

I  Ibem,  or  any  of  them,  you  must  cbal- 

» tbem  as  they  come  to  the  book  to  be 

ly  before  they  are  sworn  ;  and  you  shall 

Md. 

.  €fAjrT.  Call  Thomas  Batten.    OVho  ap- 

<) 

.  ^  Art.   Crier,  gi?e  tbe  book  to  Mr. 


Ni  ihall  well  and  truly  try,  and  true  deli- 
we  make,  between  our  sovereign  lord  the 
»  And  tbe  prisoner  at  the  bar,  whom  you 
hftire  in  charge,  and  true  verdict  give,  ac- 
Mt  Vb  your  evidence:  80  help  you  God ! 
bke  manner  the  other  eleven  were  sworn. 

Jury. 

■M  Batten,  Edward  Pope, 

ft  Holaday.  William  Bithemy, 

■M  Godenougb,.  Gil|)in  Russel, 

r  Bredal,  'Richard  Pargiter, 

GoMtmitb,  Robert  Nash, 

»  Callingfly  James  Elliot. 

Att.    Count    these.    (They   were 


jrr.  Are  yon  all  twom,  gentlemen  ? 


lUeo,  with  leave  of  the  Court,  by  T. 
WTy  abort- hand  writer,  at  the  Sessions- 
cm  tb«  OM-B«iley. 


Jury,  Yes. 

C/.  V  ^^'  Make  proclamation. 

Crier,  Oyez !  Oyez !  Oycz !  If  any  of  you 
can  inform  my  lords  the  'king's  justices,  the 
king's  Serjeant,  the  king's  attorney-general,  or 
this  inquest  now  to  be  taken,  of  the  felony  and 
forgery  of  which  the  prisoner  at  the  bar  stands 
indicted,  let  them  come  forth,  and  they  shall  be 
heard,  for  now  the  prisoner  stands  at  the  bar 
upon  his  deliverance. 

CLqfArr.  Timothy  Mnrpby,  hold  up  thy 
hand.    (Which  be  did.) 

Gentlemen  of  the  jury,  look  upon  the  (m*!- 
soner,  and  hearken  to  bis  cause:  be  stands  in- 
dicted by  tbe  name  of  Timotby  Murphy,  lata 
of  London,  yeoman,  for  that  be,  after  the  29th 
of  June,  1739,  to  wit,  on  tbe  9tb  of  February, 
in  tbe  34th  year  of  his  present  majesty's  reifp^ 
with  force  and  arms,  at  London,  viz.  in  tha 
parish  of  St.  Benedict,  near  8t.  Paul's  wharf, 
in  the  ward  of  Castle-Barnard,  in  Londoi» 
aforesaid,  feloniously  did  falsely  make,  forge^ 
and  counterfeit,  and  cause  and  procure  to  be 
falsely  made,  forged,  and  counterfeited,  and 
willingly  act  and  assist  in  the  false  making, 
forging,  and  counterfeiting,  a  certain  Will  and 
TesUment,  purporting  to  be  the  last  Will  and 
Testament  of  John  Wilkinson :  the  tenor  of 
which  said  Will  and  TesUment  is  as  followi,. 
that  is  to  say, 

<  In  the  name  of  God,  Amen.    John  Wil- 

<  kinson,  late  of  the  Princess  Amelia,  being  of 

<  sound  and  disposing  mind  and  memorv,  make 
'  this  my  last  will  and  testament ;  first  and 

<  principally  commend  mv  soul  into  the  hands 
«  of  the  Almighty  God,  hoping  for  remission 
«  of  all  my  sins,  through  the  merits  of  Jesus 
'  Christ,  my  blessed  ^viour  and  Redeemer, 

<  and  my  body  to  the  earth  or  sea,  as  it  shall 

*  please  God ;  and  as  for  such  worldly  estate 

*  and  effects  which  I  shall  be  possessed  of,  or 

*  tilted  (meaning  entitled)  unto  at  the  time  of 
*■  my  decease,  I  give  and  bequeath  the  same 

<  followeth,  that   is  to  say,  unto  my  loving 

<  friend  John  Daunt,  of  Lisbon,  in  the  king- 

<  dom  of  Portugal,  victualler,  all  such  salary  or 

*  salaries,  prize-money,  bounty-money,  wages, 

*  tickets,  short-allowance-money,  smart-money, 
'  and  all  other  sum  or  sums  of  money  that 

<  shall  be  due  to  me  at  my  decease :  and  I  da 
hereby  grant  the  said  John  Daunt,  whole 
and  aole  executor  of  my  last  will  and  testa- 
ment,  and  I  do  hereby  revoke  and  di«aunul 
other  wills,  at  any  time  by  me  before  made ; 


6QS] 


26  GEOHGfi  IL 


THtl  ^  Timothy  Murfh/t 


[GW 


'  and  I  do  hereby  Dominate,  constitute,  and 

*  appoint  the  said  John  Daunt,  exctu*''  (niean- 

*  \b^  executor)  of  this  my  lost  will  and  tetta- 

*  roent ;  and  I  do  gife  and  bequeath  unto  my 

<  said  executor,  flU  the  rest  and  of  my  estate 
'  whatsoe? er,  both  real  and  personal,  hereby 

*  revoking  and  making  void  all  others   and 

*  former  wiHs  by  me  heretofore  made  as  afore- 

*  saifl,  declare  tnis  to  be  my  last  will  and  testa- 

*  meat.    In  witness  whereof,  I  ba?e  hereouto 

<  set  my  band  and  ibeal,  this  5th  day  of  May, 

*  io  the  year  of  our  Lord,  1747. 

« Jo»'  Wilkinson.' 

<  Signed,  sealed,  published^  and  declared,  by 

*  the  said  John  Wilkinson,  (meaning  by 
L.  S.  *  the  said  John  Wilkinson)  as  and  for  his 

<  last  will  and  testament,  m  the  presents 

*  (roeening  presence)  of  us  who  have 
'  hereunto  subscribed  our  names,  as  wit- 

*  ness,  in  the  presents  (meaning  presence) 

*  of  the  testator.         *  Tbomas  Cartt. 

*  DiNisH  Collins.' 

WHb  an  intent  to  defraud  Thomas  Noads, 
against  the  form  of  the  statute  in  such  case 
made  and  provided.  There  are  sereral  other 
counts  in  the  indictment  for  publishing  the  said 
fbrged  Will,  with  the  like  intention  to  defraud 
the  said  Noads,  &c. 

Upon  this  indictment  he  hath  been  ar- 
raigned, and  thereunto  hath  pleaded  Not 
Guilty,  and  lor  his  trial  hath  put  himself  upon 
God  and  his  country,  which  country  yon  are ; 
your  charge  is  to  inquire  whether  he  be  guilty 
of  the  felony  and  forgery  whereof  he  stands  in- 
dicted, in  manner  and  form  as  he  stands  in- 
dicted, or  not  guilty. 

Mr.  Bamhtr  Gutcoyne  having  opened  the  in- 
dictment, 

The  Honourable  Mr.  Hume  Campbell  (bro- 
ther  to  the  earl  of  Marchmunt)  spoke  as  fol- 
lows: 

May  it  please  your  lordship,  and  you, 
gentlemen  of  the  jury,  J  am  counsel  on  the 
side  of  this  prosecution.  You  have  heard  from 
the  indictment,  that  the  person  who  now  stands 
a  prisoner  before  yon,  is  charged  with  the  for- 
gery of  a  pretendiMl  will  of  one  John  Wilkin- 
son, in  order  to  defraud  Thomas  Noads  of  a 
considerable  sum  of  money.  And,  geutlemen, 
was  there  nothing  more  requisite  in  this  case, 
than  to  open  the  evidence  which  shtws  the 
prisoner's  guilt ;  had  no  artifice  been  used,  no 
extraordinary  attempts  been  made,  to  prevent 
or  to  prejudice  this  trial,  1  should  scarce  have 
appeared  here  to  give  you  any  trouble  at  all. 
And  now  1  am  here,  I  should  hare  been  glad,  if 
the  conduct  of  a  person  acting  for  the  priioner, 
and  u  ho  now  hears  mc,  had  permitted  me  to 
state  onl^'  such  facts,  as  prove  the  justice  of  the 
prosecution.  But  from  what  hapi^ened  this  ses- 
sion as  well  as  the  last,  in  relation  to  this  trial ; 
IVom  au  intimatifin  that  the  baffled  attempt  to 
try  the  pn>secutor  on  the  evidence  of  the  pri- 
soner, would  be  turned  into  an  endea?oar  to 
a? Old  or  discredit  the  testimoDy  of  tbU  pme- 


eutor  ;  it  becomes  necessary  for  me  to  relatt 
lacts  of  an  earlier  date  than  1  should  otherwise 
have  done,  and  circamstaocet  I  sbooM  iMve 
wished  not  to  meDtkm :  these  will  prepare  jfom 
for,  what  may  arise  in  the  course  of  the  trial, 
and  enable  you  to  onderttaad  wbat»  1  guess, 
the  learned  ^tlemen  I  see  heire  on  the  ether 
■de  will  insist  on. 

You  all,  doubtless,  have  heard,  tbat  tooi 
years  sgo,  in  the  iiose  of  war,  eerend  priva- 
teers, four  in  number,  were  6tted  out  by  the 
merchants  of  Bristol  and  London,  by  thentae 
of  the  Royal  Family :  on  board  one  of  that 
ships  (the  Princess  Amelia)  one  John  Wii^ 
son  entered  as  a  midshipman :  the  abipsipl 
to  sea,  and  having  taken  prizes  of  great  VMb 
Mr.  Henry  Casamaijor  of  Bristol  waa  mpfmtd 
agent  for  the  payment  of  the  sailora,  for  whp 
it  was  thought  most  convenient  they  thtill 
be  paid  at  Bristol ;  but  as  some  pereoos  ni^ll 
have  occasion  to  call  for  their  money  in  Lia* 
don,  Mr.  Caenroaijor  employed  a  pel 
town,  who  was  to  write  to  him,  that 


mi^rlit  be  remitted  to  pay  them ;  that  ftnm 
was  Thonms  Noads,  a  gentleman  whe  bit  ■■• 
fortunately •  b^  that  situation,  brought hifasai 
into  nuestiuii  in  this  place,  and  is  beooat(Ood 
only  Kuous  why)  tiie  object  %f  the  resokMDt 
of  a  man  whose  name  I  must  preeenliy  aee- 
tion  to  you,  though  much  to  bis  discffdit  wai 
dishonour. 

Mr.  Noads  being  thus  employed,  and  ia  Al- 
gnst  1750,  notice  having  been  given  tbit  il 
the  sailors  mi'^l^t  receive  their  prize*oiOBq[tf 
the  pniper  agent ;  in  the  February  faXMa§ 
the  prisoner  i^t  the  Imr  conceived  be  might  |tf 
money  by  setting  uji  the  forged  will  ana  pte 
of  a  person  he  probably  thought  would  i 
appear  to  call  it  in  question,  or  at  least  thst  bt 
had  so  much  art  as  to  avoid  a  discovery,  or 
evade  the  justice  and  laws  of  his  country. 

The  prisoner  happened  to  be  at  a  house  iMff 
Charing-Cross,  a  house  of  bad  fame,  with  s 
man  whose  true  uaiue  now  comes  out  ts  hi 
Thomas  Williams :  to  him  the  prisoner  appfifdi 
and  desired  he  would  co-operate  with  hiSi 
telling  him  he  would  get  him  money  enoogkf 
that  he  should  wear  a  sword,  and  live  like  ages* 
tleman :  the  man  did  not  very  well  ondentand  ii 
what  manner  this  was  to  becontrive<l ;  bntMs^ 
pliy,  who  it  seems  is  pretty  ready  atinvcatiis, 
dist^loscd  his  method  of  executing  his  scbeai 
in  this  manner:  if  you  will,  says  he  to  WU' 
liams,  appear  as  the  e.\ecutor,  I  will  ibrgc  tkl 
will  of  John  VVilkiuson :  we  shall  go  togetbtfi 
you  as  recently  arrived  from  Portugal,  and  1  tf 
your  acquaintance :  we  shall  get  the  mos^ 
without  suspicion.  Williams  was  a  novk^ 
and  terrified  at  that  which  mii^ht  reach  ha  lifc 
he  did  not  care  to  join  in  what  the  prisooct 
proposed.  You  don't  know,  says  the  prisoQffi 
how  many  there  are  in  London  that  Kve  tj 
forging  wills  and  powers :  why,  you  may  dii* 
like  a  gentleman,  appear  in  good  company,iH 
wear  a  sword.  Go  down  stairs,  contiaues  ihi 
prisoner,  and  1*11  make  a  will  and  newer  Ar 
this  John  Wilkinson,  that  shall  intitle  yM  ti 


697] 


fyr  rWiwy  anrf  Targerj/. 


\ 


bis  prize- monej:   yonr  name  shitl  be  Jolio 
Dfttitit.     Jobn  Daunt!   » bo  is  John  Daant  ? 
m»lied  VYllliiim§.      He  i«  a  man,  answers  tbe 
pAsADer,  wbom  J  knew  i? lien  at  Lisboo  with 
dte  firif  ateers  ;    be  kept  si  public- house  tbere^ 
wfiere  Wilkiusonp  nnseli*,  mid  others,  tiietl  to 
report ;    this  will  mdke  the  story  tell ;    for  we 
will  Bay,  that  you^  John  Oaunl^  of  LislK^n,  u 
|lbase> keeper,  are  come  over  wnb  this  will  nnil 
po%ver  of  Wilkinson,  in  order  to  gel  the  money, 
•nil  that  be  matle  his  will  to  you  ou  the  ac- 
csount  of  a  debt  of  about  se?enteeri  moidores  ; 
and  V\\  go  alonj^  with  you  as  a  frienii,  and 
sb^ill  gff!t   the  money.     Uy   this  artifice^  and 
some  ihrenls,  Williams  was  prevailed  ou  to  as- 
sent, and  left  Murphy  to  do  as  he  pleased, 
fftlOD  afler^  Ulurphy  called  him  up,  and  read 
OTer  to  him  tbe  will  be  bad  made.    The  will, 
IBpenUetnen,  is  here  to  be  shewn  to  you,  with 
two  witnesses  names  to  it.     Then  Murpby  said 
to  Williams,  Now,  you  are  John  Daunt,  the 
^xeculor.      After  be  bad  read  ofcr  both  tbe 
^rill  and  power,  fresb  forged,  lie  conducted  him 
to  the  toilijingsof  Mr.  NnadN,  where  tbe  money 
was  to  be  receiircd.     Tbe  letter  of  attorney  was 
first  produteit.    Mr.  Noads  asked  a  very  natural 
question,  viz.  Where  is  this  Wilkinijon  ?    flero 
AtuTphy  made  a  rnistakr,  by  producing  the 
power  first  ;    but,  I  suppose,  tliey  Ibought  in 
^cl  it  upon  the  letter  of  attorney  ;  hut  fiodinjr 
ibat  would  not  do,  I^Iurphy  answered,  Wilkin- 
son went  from  Listwn  to  tbe  coast  of  Guiney, 
and  there  be  died.    Then,  says  Noads,  I  can't 
jiay  the  money  on  a  letter  of  altorney.     But 
we  hare  his  will  as   well  as  pow<^r,   replies 
Murphy;  and  then  tbe  will  in  question  wa^i 
produced,  and  Williams  passed  at  ilii$i  time  for 
baunt  the  execulor.   Mr,  Nnadslold  them,  tbe 
^  will  was  notbingf  utttil  proted.     Da  nut  was  to 
pajss  for  a  stranger,  and  as  unacquainted  with 
wbat   was  to  be  done  in  this  ^onnlry;    and 
therefore  the  prisoner  took  upnn   himself  the 
cotkdoci  of  the  whole,  and  aBked  Noads  where 
tbey  were  to  go  tn  prove  the  wid,  who  recom- 
nieodcd  tbem  to  ftlr.  Cre5pigny,,(a  gentleman 
of  very  great  character  in  his  profession,  and 
employed  by  tbe  managers  ns  their  proctor); 
iberetore  they  desired  Mr.  Noails  to  write  tbe 
name  on  the  back  of  the  witl^andhe  wrote  Cres* 
nigny  accordingly  ;    then  Murpby,  and  Wil- 
liams, bv  tbe  name  of  Daunt,  (for  at  this  lime 
neither  Mr,  Crespigny  nor  Mr.  Noads  bud  the 
least  6U«niciou  that  he  hore  any  other  name) 
went  to  Mr,  Crespigny,  wliere  theyprodueed 
ibis  will  again  as  the  will  of  John  Wilkinson, 
who,  tbey  said,  was    dead  no  tbe  coast   of 
Guiney,    Mr.  Crespigny *s  clerk  wrote  it  down, 
jmd  went  with  them  before  a  learned  doctor, 
where  Williams  (as  Daunt)  took  tbe  oath  usual 
OQ  such  occasions,  and  tbe  probate  was  granted ; 
but  not  being  able  to  pay  for  tbe  probate,  tbey 
Idld  Mr.  Crespigny 's  clerk  that  tbey  were  poor 
sailors,  and  bad  nothing  hut  wbal  tbey  were  to 
get  by  the  will,  and  therefore  tli^y  could  not 
pay  him  then  ;  but  if  he  would  be  so  good   to 
send  I  be   prolniie   to  Mr.  Nnad^t,   the   money 
ibouid  be^mid  out  of  the  prize  money.    After 


this  they  came  again  to  Mr  Noads  to  recme 
the  money.  The  necessary  form  was  to  gif« 
Mr,  Noads  a  letter  of  attorney,  to  receite  it  in 
the  name  of  Dtiiiot,  and  then  he  was  to  pay  it 
to  tbem  :  Mr.  Noads  wrote  to  Mr.  Casamarjor 
at  Bristol,  to  let  him  know  of  the  appUeatiori 
*riade  to  him  ;  and  as  Mr.  Casamaijor  was  al- 
ways desirous  to  af  otd  clamour,  on  account  of 
detaining  any  ptize-money,  he  immedlatelr 
remitted  to  ]Vlr.  Noads  what  was  due  for  Wil- 
l;iDson*8  share  \  but  the  letter  of  attorney  made 
to  Noadu  not  being  executed  before  a  magis- 
trate, Murpby,  with  WiHiams,  by  the  name  of 
John  Daunt,  went  before  the  then  lord -mayor 
of  this  city,  and  Wilbams  (as  Daunt)  there  re- 
executed  the  letter  of  attorney,  to  which  Blur- 
nhy  was  a  witness:  they  then  returned  to 
Noadi>%  and  received  tbe  whole  money  due  to 
Wilkinson,  amouuling  to  ihiny-sefen  pounds ; 
and  having  given  Noads  a  guinea  for  histroubIe> 
and  paid  Mr.  Cresnigny^s  clerk  his  bill  for  the 
probate  of  the  will,  a  receipt  waa  given,  and 
signed  John  Daunt,  exectrtor,  in  the  presence 
of  Murphy.  Dated  the  20th  of  February, 
1750-1.     ft  is  in  these  words : 

Received  of  Thomas  Noads  37/.  1%$,  64, 
being  so  much  be  received  from  Mr.  Casamai* 
Jor,  per  probata  of  the  will  of  John  Wdkiu* 

lion,  in  tall  balanre  of  his  account. 

(Signed)      John  Daunt,  Executor. 

Voa  will  observe  tbe  date,  it  is  tbe  30th  of  Fe- 
bruary, 1750-1.  Thus  the  matter  rested  tvith- 
out  suspicion.  Mr.  Noads  bad  paid  the  money^ 
little  imagining  what  he  bad  been  thus  transa^l- 
iogas  a  servant,  was  paying  37^.  out  of  bis  own 
pocket,  in  his  own  wrong,  or  thot  be  should, 
by  liie  artifice  of  any  man,  be  called  in  ques- 
tion, not  only  for  bis  character,  but  even  for  bis 
life  ;  yet  such  a  man  there  is  in  ibis  country  : 
but  I  trust  in  God  it  will  not  be  long  before 
vebgeance  overtakes  bim. 

There  was  not  a  suspicion  of  the  transaction 
till  January  1752,  or  ibereabouts,  when  John 
Wilkinson,  wboie  will  was  proved  as  dead,  and 
bis  prize- money  paid,  arrived  in  Kpgland. 
Then  Mr,  Noads  found  he  had  been  cheated, 
and  therefore  he  determined  to  do,  what  every 
body  will  commend  him  for,  to  discover  and 
bring  to  justice  the  coulrivers  and  perpe- 
trators of  this  biquity,  little  imagining,  that  he 
should  by  that  means  incite  a  C4ipital  prosecu- 
tiftu  agalniit  himself.  Murphy,  at  the  time 
of  the  transaction,  in  order  to  impose  upon 
Noaifs,  pretended  that  he  acted  only  as  a  friend 
to  assisi  a  stranger  from  Lisbon,  and  therefore, 
in  the  prefjcpce  of  Noads,  demanded  half  a 
guinea  of  Daunt  for  his  trouble.  You  perceive, 
gentlemen,  the  artidce  of  the  prisoner:  from 
this  small  demand  it  \vas  natural  for  Mr.  Noadi 
to  think  that  Mr.  Murphy  acted  as  a  friend  and 
assistant  only  ;  but  as  soon  as  he  got  out  of 
Noads 's  house,  be  made  a  very  diderent  de- 
mand;  he  inuisted  upon  half  the  money  re- 
ceived, besides  two  guineas  for  making  tbe  will^ 
and  he  threatened  DailX|i  I  ''  q^iugfiiUm 
refused  ta  pay  it. 


4 


I 


I 


I 


I 


G99Ji 


26  GEORGE  II. 


Trial  of  Timothy  Murphy^ 


[700 


Mr.  Notds  was  now  endeaTOuring  to  find  oat 
tbe  men,  and  briuflr  them  to  justice.  He  enquired 
of  all  Uie  sailors  whom  tie  knew.  Murphy  bad 
ffone  by  his  own  name,  but  John  Dauut  bad 
imported  his  from  Lislmn ;  therefore  it  is  plain, 
Murphy  mitfbt  be  discofered,  though  Daunt 
mif^ht  lon|(  lie  bid:  accordinfj^ly,  Air.  N«»ad8 
bafiofj^  got  information  that  Murphy  was  in 
Lonilon,  (this  was  about  two  years  afWr  the 
forgery)  he  instantly  applied  to  one  of  tbe 
worthy  aldermen  ot  this  city  for  a  warrant  to 
take  liim  up ;  but  the  bird  was  flown,  not  to  be 
found  in  that  jnristiiction.  He  got  at  last  in- 
telligence that  he  was  in  Surry,  and  immedi> 
mteiy  bad  the  warrant  backed  by  a  justice  of 
tbe  peace  of  that  county,  put  it  into  the  hands 
of  a  ct^nstable,  who  with  other  assistants  se- 
cured him.  Murphy  knew  not  at  first  for 
what  he  was  taken  ;  perhaps  he  flattered  him- 
lell  that  this  iniquity,  committed  so  long  ago, 
was  not  discovered ;  but  as  soon  as  Noads  ap- 
peared, which  was  after  he  was  in  bold,  bis 
conscience  btruck  him ;  he  then  knew  what  the 
matter  was,  thai  it  was  a  capital  offence,  and 
therefore  bn»ke  from  the  officer  and  ran  away  ; 
but  he  was  soon  taken  again,  and  brouc|[bt  be- 
fore tlie  sitting  alderman  at  Guildhall ;  and 
upon  the  oath  of  Mr.  Noads,  upon  his  charge, 
and  at  his  prosecution,  he  was  committed  for 
the  forgery  now  to  he  tried.  Tbe  defence  he 
then  made,  was  not  that  he  was  persuaded  by 
his  prosecutor  to  commit  this  forgery,  but  that 
he  was  innocent,  and  went  only  as  a  friend  of 
John  Daunt^s,  vrhora  he  knew  at  Lisbon,  to 
receiTe  of  Noads  what  Dauut  pretended  to  be 
due  to  him  as  executor  of  Wilkinson  ;  that  be 
knew  nothing  at  all  of  any  forgery,  and  there- 
fore it  was  a  very  cruel  case,  and  bard  upon 
him.  However,  be  was  committed  to  the 
Compter.  He  had  not  long  been  there,  before 
a  persbn  got  access  to  him,  whose  profession  I 
know  not,  but  his  business  was  to  persuade 
Murphy,  that  it  was  in  liis  power  to  pervert  the 
laws,  to  screen  the  guilty,  and  spill  innocent 
blood.  This  person's  name  is  Goildanl.  What 
was  the  artifice  made  use  of?  It  makes  me 
tremble  to  think  of  it ;  it  was  an  attempt  to 
make  the  prisoner  a  witness  against  his  prose- 
cutor, and  punish  him  for  the  other's  gnilt.  If 
this  should  be  suffered  to  prevail,  larcwell  all 
prosecutions  for  iniquity «  11'  such  a  person  can 
nave  the  ear  of  a  magistrate,  and  {^et  a  pri- 
soner admitted  an  evidence  against  his  prose- 
cutor ;  if  a  felon  may  be  allowed  to  charge  his 
prosecutor  with  the  very  felony  he  stands 
committed  for,  the  law  is  made  in  vain,  and 
magistracy  will  only  be  a  terror  to  the  injured. 
This  attempt  Goddard  conceived  and  perpe- 
trated. He  procured  the  prisoner  to  be  carried 
from  tbe  gaol  to  turn  evidence  against  Mr. 
Noads.  One  would  scarce  believe  any  justices 
could  be  found  to  join  in  such  a  scheme  ;  yet 
be  imposed  on  two  justices  so  far,  that  they 
pot  only  admitted  the  information  of  the  felon, 
but  went  in  person  to  the  grand  jury  to  procure 
a  bill  to  be  found  to  hang  that  man  who  had 
btan  injured,  who  had  leixcd  and  prosecnted 


that  evidence.  Shocking  as  tbia  if,  yet  sacb 
was  tbe  attempt,  and  it  is  this  stranga  iniquity 
which  calls  me  to  this  place. 

Thus  far  iniquity  prospered  :  but  there  if  a 
superinieudeut  |Hiwer,  and  we  may  thank  tbe 
Almighty  for  it,  who  here  stop^ied  its  progrcM. 

Mr.  Noads  continued  bis  inquiry  after  ImuiI, 
for  Murphy  never  would  inform  bim  who  be 
was :  at  last  he  providentially  difcovered,  that 
John  Dauut's  true  name  was  Thomas  Wil- 
liams, and  that  he  was  confined  in  tbe  gaol  of 
Corke  in  Ireland:  from  thence  he  baa  bcea 
brought,  and  is  now  here  to  be  produced  u  a 
witness  before  you. 

Alter  Goddard  and  his  asaooiatea  bad  gdiH 
formation  that  Williams  was  discovered,  nf 
might  be  produced ;  that  Mr.  Noads  wa  i 
person  whose  character  could  be  establiibi 
beyond  the  power  of  any  stain  from  Goddn^ 
(though  I  am  informed  he  has  attacked  nag 
higher  characters)  the  next  contrivance  wasH 
defeat  all  the  evidence  ;  and  for  this  porpoaea, 
bill  of  indictment  was  procured  against  Mr. 
Noads,  the  original  prosecutor ;  against  Wil- 
liams, a  witness  they  knew  for  tbe  king;  and 
against  another  man,  who  knew  notbin|[  of  tha 
otfeoce ;  but  conscience  told  them  be  might  ha 
a  witness,  as  he  was  acquainted  with  Murphy^ 
hand  ;  he  was  therefore  clapped  into  tbe  indid- 
ment.  Having  effected  this  stratagem,  of  pol- 
ting  the  king's  three  witnesses  into  one  inocU 
ment,  for  the  identical  ofienee  with  which  the 
prisoner  is  charged,  they  endeavoured  to  im- 
pose upon  this  Court,  and  struggled  bard  It 
§et  these  three  men  tried  first  upon  the  cfi- 
ence  of  Murphy. 

It  came  before  the  Court  tbe  last  scwiopi, 
and  the  Court  did  that  which  was  just    Ite 

S resent  indictment  was  ordered  to  come  oo 
rst,  that  you,  gentlemen,  might  have  tbe 
whole  of  this  case  laid  before  you  by  those  who 
were  the  original  prosecutors,  and  who  brought 
this  transaction  to  light.  And  it  will  be  prored. 
to  you,  with  this  additional  circumstance,  tbit 
when  the  other  indictment  was  found  aeaiost 
Noads,  Williams,  and  Carter;  the  will  beiog 
produced  from  Doctors- Commons;  and  Mur- 
phy having  declared  before  Goddard,  and  other 
fiersons  then  present,  that  it  was  all  of  his  owa 
land- writing ;  Goddard  soon  after  bad  the  tf- 
surance  to  apply  to  Peter  Edwards,  (who 
brought  tiie  \^  ill  from  the  Prerogative-Omce^ 
and  hcanl  Murphy's  declaration)  and  impor- 
tuned him  to  concerj  that  part  of  his  evidence. 

This,  gentlemen,  is  the  nature  of  tlie  case. 
You  are  only  to  try  whether  the  prisoner  forged 
the  will  of  John  Wilkinson,  with  intent  tode* 
fraud  Mr.  Noads,  whom  he  has  defrauded  of 
37/.  W^e  shall  produce  the  will,  and  prove  tbe 
actual  doing  of  it  by  the  prisoner,  bis  coufessioo 
of  its  being  his  own  hand- writing,  and  that 
W^ilkinson  is  now  alive. 

When  that  is  done,  I  make  no  doubt  butyos 
will  be  satisfied  that  you  ought,  according  tt 
your  oaths,  to  find  the  prisoner  guilty. 

I  have  said  nothing,  I  hope,  to  bear 
upon  bim  tbao  the  facts  will  warrant. 


r 


fyOi]  f(at  Fehny  and  Forger ij^ 

^  As  to  that  man  GfKtdard,  whom  I  hafe  $o 
Ibfteo  narr)e4  to  ^oti^  I  coutd  not  i)o  1es»  iban 
place  liim  m  tlit^  lij^Ut  1  have  iloue.  \X  I  i^uess 
^ig^ht,  the  quesuuri  will  niil  be,  wlii^ihc'r  the  |}ri- 
^Oiier  is  If ullty  or  not,  but  whether  ihe  artifkes 
^hich  Gofjdiird  has  used  »hiiU  b^  siiHicierit  tn 
%t\fi%  the  eridecco,  and  prefcnt  iis  being-  olFerifil 
for  your  considtTatiim.  For  that  reason  1  have 
iitAted  ihe  cose  at  lur^e. 

Bly  lord  wdl  ijive  (is  an  opportunity*  I  doubt 
lift 1 1  to  supiiort  the  charLicier  of  ])ilr.  Noudii,  it' 
they  attack  it,  1  have  not  the  least  doubt  hut 
fbey  Will  rejtenl  it,  it^they  do,  as  1  hope  they 
trill  every  jmrt  tliey  hove  acted  in  this  all'air. 
M'e  hlidM  now  proceed  lo  call  our  witnesses. 

Peter  Edttjards  sworn. 

^dtcards.  I  am  an  o6icer  in  the  CommaDS 
in  the  Prerou^iire-OJljce.  [lie  [iroiluces  a 
;«iU  4if  John  Wilkinson,] 

Cou  met,     \ V I  le  re  had  y  o  u  thai? 

Ednards.  1  had  it  out  of  ihe  Prerogatire- 
Office^  il  was  ^If  J  there. 

CotATnel.    Who  delivered  tt  to  you  ? 

£dwurds.  h  wan  delivered  to  ine  by  the 
Record- ket'^ier'S  clerk  ;  he  has  tht^m  wills  io 

I  custody  always. 

Couutctfur  the  Pris.  Did  you  see  the  Re- 
cord keeper 's  clerk  take  ii  otf  the  file  ? 

Edwmdi.  Yes,  1  did.  [It  is  read  in  court 
to  thit  purport.] 

*  In  the  narueof  God,  Amen.  John  W'itkin- 
« son^  late  ot  the  Princesa  Amelia,  bcinif  of 

*  sound  aud  dispo$iiiir  miiul,  ^c.   [as  st-l  out  in 
«  ihe  iiidR'inieiit.]     Jo  witness  whereof  [  have 

hereunto  set  my  hand  nod  seal,  this  5th  day 
^*  ol'  May,  in  ihe  year  of  our  Lord  1747. 

<  John  Wilkinson.* 

*  Sig'oed  sealed,  puhlishc^l,  and  ded ared,  by 

*  Ibe  »(iid  John  WilkioHJju,  as  and  Tor  hi;*  lasit 

*  Will  i*nd  teslAiiieiit,  in  the  presentj*  of  us  who 

*  buve  h  Pie  unto  Mubtfi^  rilled  4inr  niioies,  as  wit> 

*  tiesseikf  in  tb**  presents  of  \\%v  said  testator* 
*  Thomas  Cartv,  JJinuh  Collins.' 

Counul.  Has  the  prisuuer  ween  this  will  T — 
^Xdi^ardi.  He  savt  il  the  lasi  sessiouH,  I  was 
^retieiit,  it  was  at  the  coffee- house  in  the  Old- 
Bailty. 

W  fio  ddirered  it  to  him  ? — ^I  ^ave  it  to  IMr, 
Godtlard,  iiud  3lr.  Goildard  handed  it  to  him. 

Did  he  read  it  over? — He  looked  it  over^  and 

'  owned  he  wrote  the  Utidy  of  the  i»ilL 

'      What  were  his  Words? — He  said  he  Wrote 

tlie   body  of  the  wdl,   but   thai  Noads  either 

ttf^oed  the  tiaii>e  John  Wilkinson,  or  one  of  the 

fvitnesses  name!). 

Did  he  say  Thomas  Noads  ?-^l:f©  said  Noatis, 
'  I    cannot  t»e  positiv*  whether  he  titetttioned 
Thomas. 

Did  Mr,  Goddard  come  to  you  afterwards, 
and  what  wa»  the  conver«atioi]  f — He  came  to 
the  office  some  time  afterwards,  I  believe  the 
next  week  atkr,  an^  lold  me  not  to  take  any 
do! ice  of  what  passed  :  that  I  only  attended 
wiib  the  will  as  an  officer  of  the  court ;  tod  be 


A,  D,  175S.  [702 

desired  me  not  to  take  in  the  cooTersution  at 
anv  time. 

Did  he  give  you  any  reafi<»Q  ? 

[Here  his  lordship  interposed^  because  what 
Goddard  said,  wa^  uol  ev ideoce  to  affect  the 
prisoner.] 

Cross-examination. 

Counsel  for  the  Pris.  Did  you  attend  as  an 
officer  of  ttie  court  last  sessions  ? — Edwurdi, 
I  did,  I  attended  wtlh  the  will  belbrc  the  g^rand 
Jury,  n  hen  the  prisoner  at  the  bar  was  there  as 
a  witness. 

What  did  you  attend  for?^->T»  produce  tbe 
will  as  ]  have  done  now. 

W^as  it  hefore  or  alter  you  went  to  tlje  grand 
Jury,  you  heard  the  prisoner  own  he  wrote  the 
body  of  the  will?— .Before  I  went  to  the  g^rand 
jury,  the  prisoner  spoke  to  Goddard,  and  then 
he  confessed  wrilin^:  the  body  of  the  wdL 

Wliich  name  did  he  confess  he  wrote  ?^I 
cannot  be  certain  ;  if  1  could,  I  would  tell  it. 

How  do  you  know  that  a  prohaie  has  been 
^rauled  ? — Here  is  a  memorandum  of  a  probate 
beiuf^'  granted  on  the  baik  of  it. 

What  is  the  other  mark  on  the  hack  for? — 
It  is  that  the  testator  was  late  belonging  to  bis 
majesty's  ship  the  Ameha. 

Have  you  seen  the  probate!'«*No»  I  bare 
not. 

W^ hose  hand- writing  is  thai  meroorandum  f 
— It  was  air.  Cre«pisfny 's  clerk.  Thai  is  filled 
up  by  the  proctor's  clerk,  iu  order  to  %il  the 
seal.  Before  it  is  sealed,  there  is  an  entry 
made  by  some  officer,  to  shew  that  this  is  a 
person  that  died  beyond  sen. 

Coun.Jor  ihe  Crown.  What  is  ibit  entry 
made  oh  the  back  of  it  for? — Edwards.  That 
is  the  fbnndalion  of  granting  out  the  admi- 
nistration. 

Thomas  Noadt  called . 

Priioner^ifCoumtl.Mr,  (aflerwanls  Serjeant) 
Nttrrs. — My  lord,  ihuugh  V  am  of  counsel  m 
this  case  with  the  prisoner  at  the  bar,  I  shall 
think  myself  no  farther  hound  lo  defend  him, 
ttiau  he  shall  acumlly  appear  to  be,  or  at  least 
may  he  presumtd  lo  nc,  innoceut  of  this  accu- 
sation, i^n  which  side  soever  the  villainy  is,  1 
sincerely  wish  it  may  he  delected  ;  and  if  | 
knew,  or  whs  at  hherty  to  presume^  that  ike 
facts  now  stated  by  Mr.  Hume  sre  as  he  repre- 
sents them,  1  would  throw  up  my  briel  di- 
re cily. 

Bui  every  man,  my  lord,  ia  by  law  presumed 
to  be  innocent,  till  h*^  is  proved  to  he  guilty  ; 
therefore  it  would  ill  become  me,  who  am  of 
counsel  with  ihe  prisoner,  to  presume  him  other* 
wise  ;  and  thert-fore  your  lordship  will  excuse 
me,  if  1  take  such  objections  in  point  of  law,  in 
the  course  of  this  trial,  as  either  are,  or  at  least 
my  weak  judgment  induces  Die  to  believe,  may 
be  uf  service  to  the  priBoner. 

In  the  lirst  place,  my  lord,  Noads^  who  ii 
now  offereil  as  an  evi deuce  on  bebalf  of  the 
piosecution,  stands  indicted  for  the  same  crime 
tor  which  the  priijouer  at  Ibe  bar  is  dow  ob  bis 


fttS] 


26  GEORGE  IL 


trial.  The  iodjctiiieQi  Ulbimd,  ftud  princl^tally, 
if  uut  solely,  upon  tbe  (jrisouer's  eviJcace^ 
therefore  1  must  lirdi  <le«ire  ih«  iadic'tmcdt 
may  be  rear!,     [ll  is  proiluced.l 

J  musisiiUmii  it  to  your  lardsnip,  tbat  Noails 
in  ihrs  case  is  not  a  witne^.  1  will  not  take 
upon  me  to  s«yi  ibat  no  accomplice  cati  be  a 
witness;  to  b^  sure  it  i«  bit)  down  in  many 
€saiat  that  be  tnij,  and  it  is  ot'teo  abGoliMely 
aeiaefitary  be  sbould  be  so ;  tlieret'ore  I  aball 
not  take  up  your  lordsbtp's  time  ia  ineistinf^  on 
a  point  i%Incb  seems  nuw  to  be  settled :  but  it 
seems  to  me  by  no  meajjs  settled,  that  an  ac- 
complice^ against  whom  an  indictment  is  fuuud^ 
is  admisiiible  as  a  witoess  ;  therefore  I  beg 
leave  to  state  what  are  my  reaaons  why  the 
lair  appears  to  be  doubtful  in  this  particular. 

1  abail  very  candidly  owd,  that  in  Hawkios^s 
Fleae  of  the  Crown^*  it  ia  said*  that  although 
an  accomplice  be  indicted^  he  may  be  a  witne&s  ^ 
biittbeQ  it  is  Ukewii»e  said,  in  the  name  para- 
^rSjpb,  that  be  may  be  a  wltnebs^  if  he  is  not 
iodtvted  ;  and  that  Mr.  Serjeant  llawkms 
aeeros  to  by  down  in  the  firtit  place  as  hw^ 
and  cites  authorities  Jbr  it;  and  from  the  ex- 
preaaioOf  if  be  be  nut  indicted,  this  coaclnsion 
aeecnt  plainly  to  be  deduced,  that  if  be  ia  in- 
dicted be  cannot  be  a  witue&s. 

i^upposrng  then  tbe  authorities  are  both  ways^ 
I  iball  think  myself  jusilified  in  saying,  there 
is  a  doubt  in  the  case  ;  and  if  it  should  remain 
a  doubt  with  3^0 ur  lordship,  I  dare  say  your 
lordship  lAill  deterinltie  on  the  merciful  side,  in 
favour  of  lile* 

J^Iy  lord  Hale,  in  hia  first  rolume  of  bis  His- 
tory of  the  Pleas  of  the  Crown,  305,  takes  no- 
lioe  of  the  same  doctrine  that  is  Laid  down  by 
hltt  Seijeant  Hawkins,  and  after  sfaling  the 
aeveral  inntances  in  which  an  accomplice  may 
be  admitted  f  he  goes  on  ami  says,  ^*  Biit  that 
person  must  never  be  indicted  ;'*  and  speaks  of 
Ilia  capacity  of  being'  a  witDess,  in  caise  he  is 
indicted,  with  so  much  diffidence,  that  he  seems 
to  have  a  great  doubt  whether  he  is  to  be  ad- 
mitted or  not ;  and  1  cannot  help  saying-,  that 
there  is,  in  point  of  reason,  great  weight  in 
such  an  objection  ;  for  it  aeems  exc-eedingf 
atrange  to  me,  if  not  absurd,  to  say,  that  in 
point  of  law,  the  most  minute  pecimiary  inte- 
rest iti  the  world,  thoutrh  ever  ao  remote,  shall 
lake  ofiTa  man's  testimony,  and  render  him  in- 
capable  of  being  a  witnesa,  as  not  beinjH'  un- 
biassed and  impartial,  and  at  the  itame  time  to 
My,  a  fiersoD  can  be  an  nn biassed  and  imjiartial 
^filocMi  who  ia  in  dieted  for  the  same  crime, 
and  is  swearing'  to  save  his  own  life  (which 
must  necessarily  be  the  eoosequence  Jn  the 
present  instance,)  for  if  the  prisoner  ia  con- 
victed, there  can  be  no  evidence  against  the 
avitufusa. 

As  to  the  minuteness  of  a  pecuniary  interest 
4o  take  away  a  person's  capacity  of  being  a 
witness,  I  i^liali  only  roeoli<»n  one  instance, 
wblch  I  have  known  in  practice;    which   ia, 

♦  Leicb'a  Hawkins'a  Plea*  of  the  Crown, 


nujoi 

•ecti] 

-fntiotj 

atM 


Trial  of  Timothtf  Murph^^ 

that  on  an  indictment  iht  stopping 
slructio);  au  highway,  which  is  I 
lor  carts  and  can  iaj^L'K,  no  one  ofl 
tants,  who  are  bound  to  repair,  cajij 
as  a  wiitiei»s  to  uruve  it  is  not  ft 
and  carriages,  but  oidy  for  horsea  i 
is  to  diminish  &ii  to  which 

And  this  rule  h  ^ii  the  nuool 

habitants  w!iu  comrHitkie.  to  the  rep 
to  ten  thousand. 

Hut  supjmsing  your  torttship 
that  the  view  of  saving  life,  or  aecti] 
sonal  saiety,  though  immediate,  i«j 
dered,  in  point  of  law,  as  having  ( 
ilueuce  on  a  witness,  as  so  bmall  < 
a  pecuniary  interest  as  1  have  mentiotf 
is  an  objection  to  Noads^s  beiag 
arising  irom  such  an  interest. 

It  has  been  optned  by  Mr.  Hume 

is  now  called  to  prove,  that  he  hath 
frauded  of  37/.  which  sum  he  paid  OU 
own  pocket,  by  an  imposition  put  upoi 
the  forgery  of  this  will,  it  bemg  pro< 
him  as  the  will  of  John  Wilku 
on  board  the  Amelia  privateer,  : 
ed  personal  representative  ;   an  i 
laid  in  the  indictment  to  be  to  >» 

And  1  must  submit  it  to  your  iviu^M 
it  is  a  rule  uf  evidence,  that  no  person  i 
sibly  be  admitted  as  a  wttness  to  ' 
fact,  the  overturmng  of  which  may  I 
beneficial  to  himself. 

In  order  to  state  Ibis  objection  aa^ 
can,  I  beg  leave  to  mention  the  wor~ 
kins^ji  Pleas  of  the  Crown,  433t  and  f 
is  there  said  to  the  present  objection 

It  is  there  laid  down  as  a  good] 
against  a  witness,  that  bis  interest  is  ( 
*'  That  he  is  either  to  be  a  g&iner  or  tl 
tbe  event  of  tbe  cause,  whether  xtieh  adi 
be  direct  and  immediate,  or 
and  this  seems  to  be  the  r< 
is  bail  for  the  defendant  cannu  ue  a  nni 
him  without  consent.  Also  upon  tin 
ground  it  is  agreed,  thai  he  vibo  li 
money  upon  an  usurious  contract,  canO( 
witness  u[Kin  an  information  for  the  nsu 
le^is  he  hath  paid  the  tnoncy,  whether  i 
foriaation  he  brought  by  hirDself.  or  unj 
fur^  if  ill  such  ca&e  a  man  i  i 

he  would  in  effect  swear  i»  .b 

ing  a  matter  which  may  avoid  iiis  own  o 
And  upon  the  like  reason  it  hath 
that  he  who  has  been  imposed  upou  hi 
to  set  his  hand  to  a  note  for  mure  i 
he  intended,  is  no  witness  on  aii 
for  the  cheat,  because  a  convictioq 
means  to  avoid  the  note,  by  being 
as  a  motive  to  influence  the  jury  : 
like  reason  it  is  generally  agreed^"' 
whose  property  may  be  prejudiced  by 
^ery,  is  no  evidence  to  prove  it :  and 
been  adjudged,  that  he,  against  wbon 
diet  is  given,  cannot  be  a  witness  to  pni 
jury  in  the  cTidence  ;  so  that,  if  there 
the  remote^it  possibility  aveo  of 
out  to  a  jury,  that  the  witneiA 
1 


05] 


Sw  Felony  and  Fprgen/. 


A.  D.  1753. 


[TOG 


If  by  his  ttttimooy,  be  can  be  no  legal  wit- 

The«eBre  the  worda  of  tb^  hook  '.  let  iis  then 
iply  the  doctrioes  bere  laid  down  to  ibe  pre* 
tot  case. 

It  is  very  yAun^  Noftds^ as  it  bas  been  opened, 
ha  paid  37/.  npon  this  will  beiu^  produced  to 
^  as  a  real  will.  Tbis  certainly  vras  an  im- 
MftioD  on  bim.  Now  the  que&tion  is,  bow 
r  any  advunta^e  can  arise  to  Noads  one  way 
•  Ihe  o4ber,  from  the  cons<Hiuence  of  thii  con* 
ction  :  the  money  was  paid  to  Williams,  who 
ersonated  one  Daunt,  the  pretended  executor 
r  Wilkinson's  will:  Noads  roigfhl  bring'  an 
!li<in  for  the  money  ag'ainst  WilbamSf  aa 
lODey  had  and  received  to  bis  use,  beio^  pro- 
ired  by  a  deceit :  in  order  to  prove  the  deceit, 

may  be  necessary  to  shew  the  willj  of  which 
l^illiams  pretended  to  be  executor,  and  by  co- 
mr  of  which  he  received  the  money,  was 
^r^ed  ;  and  though  1  will  not  contend  that 
lerdtcts  io  criminal  prosecutions  are  in  geoeral 
H  be  given  in  evidence  in  actions,  yet  I  cannot 
lee  why  the  copy  of  the  iudictraent^  in  which 
be  will  is  set  forth,  antl  of  the  coni^iction  in 
Bnseqneoce  of  it,  might  not  be  a  proper,  if  not 
Bcessary  evidence  to  prove  the  deceit  ;  if  not, 
le  mentioning  it  to  the  jury  would  have  a 
neat  infltieuce  m\  tliem  ;  and  if  that  is  law 
bicb  is  laid  down  in  Hawkins,  an  advantage, 
'<eft  of  that  sort  only,  would  be  sufficient,  in 
»int  of  law,  to  take  away  a  man*s  testimony » 
for  these  reasons,  my  lord,  1  beg  leave  to 
^st  that  Noads  it  not  a  proper  witness,  as 
kSig  ao  accomplice  indicted  ;  and  if  be  is  its 
cb,  yet  if  be  bath  that  interest  or  advantage 
iHing  to  bim  from  the  conserpjence  of  tbis 
fcl>  in  respect  of  the  money  be  has  paid,  as  1 
>^e  hinted  at,  that  will  be  sufficient  to  destroy 
b  testimony. 

IpRi  CoumeUbr  the  Pnioner^  Mr*  (aRer* 
5«  Serjeant)  Duvy,  I  do  assure  your  lord* 
ip,  the  matter  liinted  at  by  Mr,  Hume  is  en- 
*^y  new  to  us,  and  if  we  had  any  reason  to 
fHere  it  to  be  truth,  your  lordship  would  not 
^>e  been  troubled  with  the  appearance  of 
liier  of  us  here ;  and  without  doubt,  we  can* 
K  be  justified  in  deserting  Ibe  prisoner,  as  he 

to  be  tried  for  bis  life,  so  he  may  be  sure  of 
H  the  assistance  we  can  give  him  under  your 
irdsbip^s  di  recti  ODS, 

Where  a  man  is  at  all  influenced  in  the  evi* 
Bfice  Im  is  to  offer  to  your  lordship,  by  any 
Iterest  W  may  receive,  either  pecuniary,  or 
ay  advantage  be  may  have  in  escaping  pu* 
isbment,  or  what  not,  it  will  be  such  a  bias^ 
tat  will  take  oflf  that  credit  to  his  testimony, 
ad  therefore  be  the  cau%  of  his  rejection. 

The  first  ohjeciion  is,  that  he  him»eif  stands 
idicted.  I  take  this  to  he  a  rule,  that  if  be 
id  been  indicted  iu  the  same  indictment,  he 
jgbt  come  in  as  a  witness,  supposini^  be 
ould  confess  himself  guilty,  as  in  sir  Peter 
rofiby's  Case,  l  Hale's  R  C.  3Q3.  It  was 
Kid  in  the  JiSiar  Chiiml^er,  That  if  two  de- 
odauts  be  charged  for  a  criiiie]  one  shall  not 

VUU  XJX. 


be  exanimed  against  ihe  other  to  convict  bins 
of  an  offence,  unless  the  party  examined  con- 
fe^ss  himself  guilty,  and  then  he  shall  be  ad* 
mitted. 

This  will  account  for  the  distinction  made 
by  my  lord  chief-justiee  Hale,  mentioned  by 
Mr.  Nares;  for  my  lord  Rale^s  idea  of  it  is, 
that  no  man  can  turn  evidence  for  himself;  if 
thai  is  so,  your  lordship  will  see  whether  there 
is  any  distinction  in  the  case,  when  there  are 
two  indictments  in  the  sanie  case. 

This  will  come  still  stronger,  when  it  is  con- 
sidercil  that  the  prisoner  stands  as  an  accuser 
on  the  back  of  that  indictment  which  is  found 
against  Noads,  and  that  which  Noads  is  by 
and  bye  to  t»e  tried  for.  If  he  can  give  evi- 
dence against  Miirphvi  and  convict  him,  he 
will  prevent  that  r  no  interest  can  be  more  im- 
mediate, than  that  he  should  gire  evidence  to 
take  off  Ihe  testimony  of  auother  man  from 
convicting  bim  of  a  capital  crime  immediately. 

The  order  was,  Murfdiy  being  tirst  indicted^ 
should  be  first  tried :  your  lordship  will  observe 
who  squeaked  tirst.  Thi*)  indictment  agatDSt 
Murphy  was  never  found  till  iuch  time  that 
there  was  a  charge  against  Noads  for  this  very 
forgery  :  and,  my  jord,  this  ohjeciion  comes  in 
some  measure  stronger  by  the  evidence  of  Mr.^ 
Edwardsi :  he  has  been  called  in  to  prove  a  kind 
of  confession  of  the  prisoner  of  this  forgery. 
Novv  all  confessions  must  not  be  taken  in  part, 
but  together :  the  same  evidence  proves  Noada 
also  to  have  a  hand  in  it,  because  Murphy 
conlessed  he  wrote  the  body  of  it,  and  Noaaa 
either  the  attestation  or  anntber  name.  An 
objection  will  come  here  in  point  of  interest  : 
Mr.  Noads  is  the  person  charged  in  the  indict* 
ment  to  have  been  defrauded  by  ibis  Murphy  * 
for  so  it  has  been  opened  by  Ibe  gentlemen  on 
the  part  of  Ibe  prosecution ;  can't  he  avail 
himself  of  this  atUrwards?  and  as  he  is  im- 
mediately concerned  in  this  to  save  his  owm 
life,  he  will  disable  Murphy  by  his  convictioui 
who  is  prosecutor  against  hlra  in  the  other  in- 
dictmeot ;  and  under  such  a  bias  he  ought  not 
to  be  received  as  a  witness* 

The  case  in  Hawkins,  about  a  woman  vrhQ 
had  indicted  her  son  for  fr&udnlently  obtaining 
from  her  a  note  of  100/.  intendtng  to  give  her 
50/.  Lord  Hardwicke  in  the  case  of  the  king 
and  Bray  mentions  that  case ;  my  lord  Hard* 
wickers  words  are.  That  nothing  but  that  great 
authority  could  support  it;  but  be  says  this 
loo  in  that  case  of  the  king  and  Bray,  That 
nothing  is  more  unsettled  ibau  the  ride  oi'  evi- 
dence: the  determinationg  often  lurn  upon 
some  right  or  wrong  application  of  that  rule  I 
have  mentioned,  and  that  is,  the  bias  witoesse* 
are  under  when  they  come  to  give  evidence,  ^ 

Whether  Noads  is  not  under  such  a  bias»  tl 
not  the  <juestion  ;  but  whether  that  bias  is  not 
so  strong,  that  it  is  a  material  objection  to  hii 
being  received  as  a  witness,  1  leave  to  your 
lordship. 

Mr.  Hume  OimpUW^  R^ply- 

^Jy  lord,  1  should  scarce  think  ii  jostitUbk 


i 


707] 


26  GEORGE  IL 


Trial  ofTinKAhy  Murphy ^ 


[70S 


to  take  op  any  of  your  lordsbip*s  time  to  an- 
•wer  the  objections,  which  the  geDtlemoD,  by 
stating  with  so  much  candour,  have  really  an- 
awereil  themselves,  was  it  not  that  the  present 
question  is  of  the  utmost  importance  to  futurity, 
in  the  attainment  of  the  great  ends  of  pro- 
tection and  justice.  We  are  now  to  consider 
it  as  a  matter  of  doubt,  whether  every  criminal 
by  turning  tlie  charjgre  against  his  prosecutor, 
may  not  evade  justice,  and  prevent  the  Court 
from  having  any  evidence  produced  on  the 
part  d*  the  crown. 

Thero  are  always  two  ways  in  which  ob- 
jections  to  evidence  are  made :  one  is  to  the 
competenov  of  a  witness,  which  is  a  total  re- 
jection of  his  testimony ;  and  the  other  is  to 
bis  credit,  which  is  proper  only  for  the  consi- 
deration of  the  jury. 

In  the  present  case,  the  gentlemen  don't 
chuse  their  objection  should  be  directed  at  Mr. 
Noads's  credit ;   that  would  not  answer  their 

Eurpose,  because  we  can  establish  his' credit 
eyond  a  doubt.  Their  attempt  Uierefore,  is 
totally  to  reject  his  testimony;  nothing  less 
can  afford  a  possibility  of  supporting  the  scheme 
of  turning  the  prisouer's  evidence  against  his 
prosecutor,  or  of  making  the  extraordinary 
behaviour  of  the  two  justices,  to  bring  this 
matter  about,  of  any  effect 

1  have  watched  to  hear  if  they  conld  pro  • 
duce  an  instance,  wherein  it  was  ever  held, 
that  a  prosecutor's  testimony  should  be  reject- 
e<l,  to  receive  that  of  a  prisoner  chained  and 
committed  originally  upon  such  prosecutor's 
oath  ;  and  my  learned  friends  have  not  offered 
to  state  to  your  lordship  a  single  authority  for 
it :  the  authority  quoted  out  of  Hawkins  is 
strongly  against  them  :  my  lord  chief-justice 
Hale  puts  it  rightly ;  it  may  go  to  his  credit, 
and  may  he  weighed  by  the  jury,  but  it  never 
can  go  to  the  total  rejection  of  his  evidence. 
There  is  no  colour  therefore,  why  your  lord- 
ship should  not  hear  the  witness. 

The  next  objection  is  very  singular  ;  it  is, 
that  becanse,  by  a  forged  will  of  a  living  man, 
Williams  has  defrauded  Noads  of  37/.  and 
Moads  may  bring  an  action  against  him  for 
imposing  upon  him,  therefore  Noads  cannot  be 
a  witness  to  prove  i^Iurphy  guilty  of  forging 
that  will,  w  hich,  whether  counterfeit  or  genuine, 
leaves  Mr.  Noads  equally  defrauded. 

I  submit  it  to  your  lonlsbip,  that  there  is 
not  a  sufficieut  foundation  to  support  either  of 
the  objections,  which,  your  lordship  observes, 
may  be  attended  with  those  perilous  conse- 
quences which  I  pointed  out,  and  endeavoured 
to  prepare  the  Court  for,  in  the  opening  of  tlie 
Case. 

Mr.  (afterwards  L.  C.  J.)  TraiCt  Reply. 

In  a  common  cane,  I  think,  I  should  banlly 
iiaye  thought  it  worth  while  to  give  your  lord- 
ship any  trouble ;  but  the  present  objection  is 
of  the  last  consequence  to  the  justice  of  this 
kingdom  ;  for,  if  it  prevails,  it  will  teach  every 
criminal  a  metliod  how  to  skreen  himself  from 
tkt  law,  and  no  proaecator  wiU  ever  be  aUe  to 


apprehend  a  felon,  without  nmning  tlieriikaf 
putting  his  own  lifis  in  danger. 

This  therefore  is  a  pmut  which  deaerrci  • 
very  serious  consideration.  Bf urphy,  wb«  ap- 
pears now  the  prisoner  on  this  preaent  indiel-. 
ment,  was,  upon  hearing  counsel  on  both  aidei^ 
ordered  to  be  tried  first  in  favoar  of  Mr.  Noads. 
Now,  if  the  objection  prevails,  it  will  not  oalj 
to  Noads,  but  likewise  to  WilliMnaaM 


S 


lartor,  who  are  both  indicted  with  Mr. 
by  the  prisoner,  and  these  are  all  the  ' 
who  are  capable  of  proving  the  forgenf  wfm 
him ;  the  consequence  then  will  be  thai  Bit 
only  the  present  prisoner  must  he  nrtmillrt 
for  want  of  the  king's  evidence  beio^  mti^ 
but  Mr.  Noads  must  be  tried  immediately  rikfa 
and  this  very  prisoner's  evidence  mail  bi  ik 
mittod  against  him.  Your  lordship  wil  A* 
serve,  wluit  strange  perverted  prooecoiogalkM 
would  be  upon  thes»  occasions,  if,  wImr  Imi 
cross  indictments  are  depending,  ( 
by  the  prosecutor,  and  the  other  by  the  i 
nal  himself,  it  should  be  held  just  to  read 
prosecutor's  testimony  incompetent  upoa  ibi 
first  indictment  that  comes  to  be  tried.  .  If  Ilii 
be  the  case,  Mr.  Noads  would  bav«  doM  nfM 
to  have  come  to  the  court,  and  desired  li  bait 
been  first  tried ;  because  then,  the  prinav  be- 
ing set  aside  as  having  been  indicted  fer  iba 
same  oftence,  Mr.  Noads  would  haw  hen 
clearly  acquitted,  and  upon  the  second  isial. 
ment,  being  clear  of  ebjection^by  tbeaeqail4 
must  have  convicted  the  prisoner. 

But  to  consider  the  principle  of  law  iMI 
which  this  kind  of  testimony  stamlsk  Tbh 
then  I  toke  to  be  a  clear  maxim  and  gitMadrf 
law,  and  is  universal,  that  every  ouus  in  Ail 
kingdom  is  a  competent  witness  on  an  iadiel* 
ment  in  behalf  of  the  crown,  unless  ha  iscH- 
victed  or  attainted  of  some  scandalous  offnM 
There  must  be  a  conviction  before  the  witaca 
can  be  disqualified ;  which  provea  that  a  ncn 
accusation  or  indictment  cannot  render  bun  ia* 
competent,  however  it  may  affect  bis  credBt| 
for,  in  point  of  law,  every  man  is  presumed  ia« 
nocent  till  he  is  proved  guilty :  nor  is  thb  de* 
nied,  but  admitted  by  my  Icird  chief  jortiei 
Hale,  though  what  has  been  cited  upon  tto 
present  occasion,  is  confined  to  cases  of  ess* 
fessed  accomplices  and  joint  indictments ;  H 
to  which  his  words  are,  that  such  penoeiii 
though  indicted,  may  be  admitted  as  witoeMi 
if  they  confess  themselves  guilty,  but  their  Iff 
timony  is  not  conclusive  to  the  jury ;  lor  thff 
may  as  well  consider  the  credibility  or  not  cre- 
dibility of  the  witness,  as  the  matter  he  swesrb 
And  tliis  is  all  the  distinction  he  makes  evea  is 
this  case,  that  though  one  be  indicted,  it  is  b4 
an  objection  to  his  competency,  but  may  be  If 
his  credit.  Nay,  in  cases  of  treason,  be  il 
clear,  that  such  a  person  is  not  barely  a  conijB' 
tent  witness,  but  may  be  one  of  the  two  wil* 
nesses  required  by  the  statute  to  an  overt-act  if 
treason.  The  only  qualification  to  the  raleil 
this,  that  such  a  witness,  so  indicted,  sboaM 
confess  himself  guilty  of  the  crime  for  whiA 
he  stands  indicted,  which  luidoiibtcdiy  it  rigbl| 


Jhr  Ftlontf  and  Forgiry* 

\  Cdnrl  was  to  admit  him  o  wittiest  lo 
own  iniioceDce,  tliat  would  be  a  clear 
to  l»jm ;  but,  ir  be  confess*?*,  be 
It  lo  ^L,rjre  another,  and  not  to  clear 
e  are  not  like  tbe  present 
i  -  l:,' case  here? 
Milts  if  the  oricfinat  prosecutor,  and 
the  first  iodictracnt.  Tbe  prisoner 
I  iiidicis  the  same  Mr.  Noads,  by  a 
itiilHTini<^nt,  for  tbe  fame  offence, 
not  come  here  lo  firite  evidence 
lunclion  with  the  prisoner  foftfed 
loes  not  come  uuder  the  ii^^ht  of 
bui  insists  upon  his  innucencr^ 
time  be  deemed  in  law  as  in- 
ifd  to  Ibid  fact,  as  any  mnu 
111  then  is  a  mati^rial  difFereoce 
luint  and  separate  indiottnents ;  to 
uiy  lord  Hale  in  that  very  book 
that  if  A«  B,  and  C,  are  sepA- 
A,  one  of  the  persons  indicted, 
:e  for  B  and  C,  and  they  may 
itted  on  bis  testimony.  Mr. 
icted  in  one  separate  imlictmenti 
iaoner  in  another.  Can  there  be  any 
aay,  that  Mr*  Noads^  th^.  person 
I  and  tbe  first  indictor,  shall  be  no 
^iQist  the  prisoner,  for  this  reason 
luse  be  has  been  afterwards  indicted 
Was  ever  a  case  like  this(  before^ 
weeks  af)er  the  prisoner  had  bei.*n 
t  he  »hould  be  permitted  to  torn  evi* 
lost  Mr.  Noads,  who  was  the  only 
rrauiled,  in  the  6 rat  instance,  by  the 
who  Cook  bim  up,  and  con  Trot  i  led 
the  alderman  ;  who  churjjed  him 
mcMth  with  this  ofitioce  uiicontra* 
>  enuied  bim  to  he  committed,  who 
im?  Hhall  this  prisoner  now,  losare 
re,  (fif  r  evidence  against  hit  prosecii- 
uidictment  ia  the  evidence  of 
i  a'side  that  indictment  upon 
birascif  is  to  be  tried  f  If  this  be  the 
Lord  have  mercy  upon  every  ninn 
ipti  tojyrosecute  a  felon  for  ibe  sake 
for,  if  this  should  be  allowed,  no 
it  the  prosecutor,  will  efer  be  con- 

on  was  goin^  to  enforce  what 
f«*M,  when  bis  lofdiibip  declared  it 
and   that   the    Court    wna 
,  Mr.  Noads  onc^bt  lo  be  ad- 
and  iherefiire  over-ruled  the 
litis  competency.] 

Thomat  Noadt  sworn. 

kTbtt  prisoner  at  the  bar  was  one  of 
t  un  U»urd  one  of  ihe  Koyal-  Family 
lie  came  to  me  in  the  hei^nuin^  of 
|1750-1,  about  the  :id  or  4tb,  with  a 
hr  name  of  John  Daunt* 

ruu  live  then  f — I  lived  then  in 
PluiCH,  Cit)*ffnan -street, 
our  busineia? — 1   act  as  a  book* 
M^prk  to  tbe  tnaitagers  of  tbe  Royal 
ivaleeri. 

•eeu  th«  priiODer  beiure  February 


A.  D.  1753. 


[710 


1T50*  1  ? — He  has  been  frcijurntly  at  our  office ; 
f  was  by  when  he  received  hU  own  part:  lb« 
Hrit  of  his  coming*  was  to  solicit  for  20/.  be* 
fore  the  aecountu  were  nettled. 

Had  you  ever  seen  that  person  before,  that 
came  in  the  name  of  JohD  Daunt  f-* No,  I 
never  had. 

What  liid  they  come  about  ? — Tl»e  prisoner 
brought  Daunt,  and  a  will  and  power,  and  told 
me  it  was  the  witi  and  power  of  John  Wilkin^ 
son.  I  knew  by  onr  bofik  there  w as  such  a 
person  on  board.  Tbe  prip^oner  told  tne  that 
Daunt  kept  a  public- house  in  Lisbon,  and  that 
he  bad  frequently  drank  at  his  house  at  Libboa 
with  Wilkinson  ;  and  said  it  was  a  house  that 
be  and  several  other  sailors  Ufsed  while  tho 
ships  lay  there ;  and  that  he  knew  Daunt  to 
be  a  very  honest  and  worthy  man  :  be  desired 
I  would  write  lo  Mr.  Casamaijor  of  Bristol/ 
(who  was  the  af^inU  ajppoiiUed  to  pay  the  (leople 
for  their  services  on  board)  for  the  money  due  to 
John  Wilkinson  for  bis  service  on  hoard  the 
Royal- Fitmily  privateers.  J  asked  him  some 
few  <]aesiion>i  wiib  regard  to  the  ships:  both 
of  them  told  me,  that  John  Wilkinson  lod^rftl 
with  John  Daunt  at  Lisbon,  at  the  time  tbe 
ships  were  lilting  out  for  a  second  cruize.  1 
asked  them,  wh;it  was  become  of  Wilkinson, 
that  J  had  heard  nothing'  of  bim  for  upwards 
of  two  years;  Murphy  replietl,  be  died  on  tbts 
coast  of  Guiney  :  1  should  otherwise  have  paid 
ibem  the  money  on  the  power  of  attorney » 
which  they  had  Arst  produced  ;  but  as  I  un- 
derstoofl  the  man  was  dead,  I  coutd  not  then 
pay  tbe  money  vpoii  Ihe  power.  Murphy 
llien  immediately  proposed  to  fjo  to  the  Com- 
mons to  prove  tbe  will,  snyiniBf,  at  the  same 
time,  be  knew  very  well  how  to  ^  about  it  \ 
for  that  he  bad  proved  (be  will  of  one  Miles 
Masterson,  I  think  the  name  was;  be  then 
mentioned  some  proctor's  name,  I  think  it  was 
Hu;rheii ;  1  then  told  him  he  toi^ht  as  well  go 
to  Mr,  Crespiifuy. 

\yo  you  know  the  day  of  tbe  month  you  had 
tiii«  conversation  ? — 1  tielieve  tbif«  was  the  9th 
of  February.  They  were  several  limes  with 
me  from  tbti  bcg'iunmg'  of  February  to  the  9th. 
In  the  afternoon  the  same  day  they  retitnied  to 
me,  and  told  fiie  that  the  will  wus  provt-d,  and 
de&ired  me  to  make  out  a  power  of  attorney 
for  me  to  receive  the  money  of  Mr.  Casamutior, 
he  livintc  at  Bristol.  1  made  one  out  accord- 
intjly,  Murphy  was  a  wilne<*s  to  it.  <He  pro- 
durcn  it,)  l^bey  went  away  from  me,  and 
cnrne  in  two  days  aft^r.  I  believe  this  was 
on  Haturdny,  and  they  returneil  on  the  fVlou* 
day,  and  brought  it  rc-executeil  before  the  thett 
lord  mayor.  I  then  wrote  to  Mr.  Casamaijor, 
and  be  Vemittcd  me  the  money  on  tbe  lUth  or 
19th  of  February  ;  they  botli  called  a^in  on 
the  9tithj  and  on  that  day  1  paid  the  money  tf» 
Thomas  Williams,  tlie  uiun  who  ciills  himself 
Jfthn  Daunt:  1  t<iok  a  receiiit  for  it;  [H« 
shewed  a  receipt ],tbis  i«>it.  Th<>m»s  Williatiw 
signed  it  by  the  name  of  John  Dutint,  and 
Murphy  was  present  at  the  time.  I  paid  down 
tbe  wiiole  money  on  tbe  table^  37 /«  13i.  cii. 


711] 


26  GEORGE  II. 


Trial  of  Timoikjf  Murphif, 


[712 


Tbey  paid  back  Ibe  dcdoctioiii  which  win 
about  40t.  for  proving  the  nill ;  tbej  had  BOt 
mooey  to  pay  for  the  proviD^r  the  will,  oo  Mr. 
Crcspigny's  clerk  fent  the  will  to  me,  to  take 
the  money  for  bim. 

What  did  they  girt  yoo  for  yoar  trouble?— 
I  bcliere  they  gave  me  about  a  guinea ;  it  wai 
sot  more  than  95  thillingB,  for  the  trouble  I  had 
in  writing  letteri,  |N^y>uff  poftage,  and  drawing 
tha  letter  of  atUNney. 

Who  received  the  money  of  you  ?— It  wai 
Kceif  ed  bj  the  perMw  wbo  went  by  the  name 
of  Daunty  m  the  preeeneeof  Mnrphr.  Murphy 
nt  that  time  desired  that  Daunt  would  give  him 
■omethiog  for  hii  trouble  in  shewing  nim  the 
way  to  Docton  Commons,  so  Daunt  gave  him 
half  a  guinea ;  Murphy  muttered  and  grum- 
bled, and  Slid  it  was  loo  little ;  then  they  went 
out  of  the  bouse. 

Had  you  ever  seen  the  will  of  Wilkinson,  or 
power  of  attorney,  before  that  time  they  brought 
It  in  February? — No,  1  had  not. 

Who  wrote  Creipiipiy  at  the  back  of  the 
will  ? — I  might  write  it  very  likely,  but  it  is  so 
much  erased  that  I  can't  aay.  I  should  have 
in  courM  sent  them  to  Mr.  Crespigny ;  I  sent 
every  body  that  came  to  have  any  thing  done 
in  liis  way  to  bim ;  he  is  the  person  employed 
by  the  gentlemen  as  their  proctor. 

Have  you  seen  Wilkinson  since  that  time? — 
I  have :  1  believe  liim  to  be  the  same  that  was 
on  the  books. 

Has  there  been  any  demand  by  him  for  this 
money  since?— No,  there  has  not,  neither  by 
him,  or  any  body  else. 

When  did  you  first  hear  that  Wilkinson  was 
living?— I  heard  it  when  the  cause  came 
on  in  chancery  about  a  year  ago,  then  he  ap- 
peared. 

Have  you  seen  him?— I  saw  him  in  this 
court  in  the  parlour  with  Mr.  Goddard,  the  ses- 
sions before  last. 

Did  you  ever  see  him  before? — I  have  seen 
him  at  Li8b«)n  among  the  Kliips  crews,  and  I 
talked  with  liim  since  about  his  being  there, 
and  about  iwo  or  three  of  the  shi|)s,  and  believe 
him  to  be  the  man. 

Uow  long  was  it  after  you  paid  the  money, 
when  you  saw  him  first?— It  was  a  year 
and  a  half  after,  and  that  was  at  this  court,  as  1 
mentioned  before. 

To  which  ship  did  he  belong? — He  was  one 
of  the  crew  of  the  Princess  Amelia. 

Upon  jTOur  hearing  he  was  alive,  and  you 
having  paid  the  money,  what  was  the  first 
thing  you  did? — I  made  inquiry  aAer  this 
Daunt,  but  could  not  find  bim.  I  then  began  to 
inquire  for  Murphy ;  and  one  Carter,  who  had 
been  intimate  with  Murphy,  and  was  on  board 
the  privateers  commanded  by  commodore  Tal- 
bot, was  the  first  person  that  gave  me  any  in- 
formation of  him :  he  at  first  thought  I  wanted 
to  arrest  him,  till  I  told  him  the  whole  affair. 
Carter  went  to  several  places  to  make  enquiry 
after  him.  When  we  got  an  account  of  bim, 
which  was  in  about  a  fortnight,  I  got  a  warniDt 
from  Mr.  Alderman  Ironwlo,  and  then  I  hcaid 


he  was  at  Tooting;  I  got  lb 
by  justice  Clarke,  and  went  tk 
bad  been  there,  but  was  gone 


I 


Ibei 

:bere,andlbnndho 
e:  Ihenlheaidha 
was  at  Dulwich ;  Ibero  I  gol  ikc  wantnl 
backed  by  another  iustico,  and  finrnd  ho  had 
been  at  the  Green  Man  there,  bnl  woo  gone  a 
few  days:  I  applied  to  the  master  of  the eal- 
Icge,  and,  by  the  assistanee  of  a  asrvnni  to  Ibn 
gentleman,  be  was  uken  at  Newinfrtsa  onthaft 
side  the  water.  After  he  was  taken,  I  ap- 
peared. As  they  were  bringing  him  nmnd  no 
eomer,  the  prisoner  made  his  ewnpe  fram  thi 
eonstable,  and  ran,  but  was  taken  again  in  a 
few  minutes  after.  We  took  him  into  a  p^ya 
house  there :  he  asked  what  he  was  lakeo  np  fen 
I  told  him  he  might  well  issagiiie  for  whI;  I 
said  it  was  for  fwging  such  a  will,  and  UmI 
was  very  confident  it  was  his  hand-wriliq^I 
had  compared  it  with  some  of  his.  Ho  tatkm 
to  one  comer  of  the  room,  and  said.  Door  ft^ 
(lifting  up  his  hands)  do  you  think  I  had  aif 
thing  to  do  with  it  f  But  upon  my  leUing  Ub 
I  was  confident  it  was  his  hand-writi^,  sad 
that  several  people  knew  it,  lie  said  he  tbitv 
himself  at  my  feet,  and  hoped  I  woiiM  ■iftsh 
away  his  life,  or  to  that  purpose. 

What  were  his  words  as  near  ■■  van  esnio- 
collect  ?— He  said,  I  hef  my  life.     I  loM  lial 
did  not  want  to  lake  bis  life  away,  I  only  t 
to  have  common  justice  done. 

Did  you  understand  him  to  mean  ha 
the  will  and  letter  of  attorney?—!  did 
stand  him  so ;  he  allowed  he  wrote  it,  bnl  M 
not  immediately  say  he  did. 

During  all  this  conversatkw  which  yea  W 
whh  him,  did  you  enquire  after  John  Dawtf 
— I  asked  him,  if  it  wss  not  one  Thomai  Wi- 
liams  that  personated  John  Daunt,  beawie  I 
underatood  from  Carter  that  it  most  be  Mm; 
and  he  said  but  very  little  afterwards,  and  csUci 
for  some  water,  and  was  ready  to  faint ;  he  never 
made  me  anv  answer  to  that,  whether  it  wM 
he  or  not.  We  then  took,  him  before  jailioi 
Clarke,  and  he  sent  him  to  Guildhall;  there  hi 
was  committed  to  the  Poultry  Compter  by  Ut» 
Alderman  Chitty,  the  sitting  alderman. 

Was  you  by  at  his  eiamination  before  thi 
alderman? — 1  was. 

Who  made  the  charge  against  him  ?— I  dii 

Did  you  make  it  upon  oath  ? — 1  did. 

What  was  the  charge?— It  was  widi  tbt 
forgery  for  which  he  uow  stands  indicted.  I 
had  several  opportunities  of  oomparinr  bss^ 
writings  of  his  that  1  had  got  during  the  iam 
of  my  knowing  it  was  a  forgerv,  and  the  tine  1 
took  him  up ;  and  by  several  comparisoM,  I 
believe  the  whole  to  be  his  band-writiaf* 
When  we  had  him  before  the  alderman,  be  vtf 
asked  after  Daunt ;  he  said  he  ooukl  prove  hi 
lived  at  Lisbon,  but  said  he  could  imt  tell  whiR 
he  then  was  ;  afterwards  he  insisted  upea  hii 
innocency,  and  said  he  knew  nothing  ef  thi 
matter ;  he  did  own  he  met  Daunt  in  the  ilrsBfi 
and  said  ho  had  seen  him  at  Lisbon,  anddnt 
Daunt  told  him  he  had  a  right  of  looeiviaglhi^ 
money  from  that  will. 

When  did  yoaprtftr  a  biU  of 


Jor  Felont/  and  Farg€nf< 

t'^l  did  llic  ¥ery  oezt  sestions, 

I  KftrKmtier. 

,  VVUkmi^ii  And  Mr,  Jurtm  God- 
ftl  Ibat  iifne  ?— Tliey  were :  1  be- 

trere  iher«?— There  were  Peter 
d   Antlioay   Dev'>yer.    Thai  bill 

ire  you  been  Informed  Umt  the 
called  uis  uame  John  Daunt  was 

Uiams  ? — Carter  would  hure  it  to  be 
was  nol  confident  iill   I  went  or er 

llWr  tbat  tull  was  thrown  out,  to  aee 
viADt  ^ho  I  wa«  informed  was  in 
was  the  man  thai  I  puid  the  mo- 

iiuod  hiiti  to  be  the  sarae  ptttsoHi  f 

I  bim  immediately,  und  am  sure  be 
nnan  that  1  paid  tJie  money  to  by 
prf  John  Dauuti  who  was  recom* 

ttie  by  the  prii^oner  as  aa  boneat 

[CroMMCXamin  alion .  ] 

'ikeFrir     Who  was   vou  ag^ent 

1  wat  aiafent  under  Mr.   Henry 

i  transacted  husine^^s  for  bini. 

Iciiow  Mitrphy  before? — l  had  seen 

I      ve  be  came  ^ith  thai  per- 

line  Llaunt ;  he  waa  one 

II  oil  i>nard  the  Ro^«l  Family  pri- 
ttt  last  gut  to  as^i^t  the  capiain'a 

kind  of  cabbi  n  -  boy . 
€ifD€  to  reoeire  bia  own  moneys 

? — The  balance  of  the  account 

1 7  or  8/.  a  share  was  36^,  8;.  Id. 

believe  be  bad  a  share  and  a  half, 
Produce  the  will  aod  power  of  at- 
f  together  ? — Be  did  ;  I  beliere  he 
|[<kut  of  the  other  man's  hand,  and 

\  direct  them  to  make  use  of  your 
f,  Crespigny  ?— No»  I  did  nol» 
iolled  youraflf,  did  you  write  that 
b  back  ut  the  will  or  notf — I  mi^ht, 
l^knowt  that  which  is  not  et^iaed 
py  writing, 
^know  how  it  came  to  be  scratched 

II  1  do  noli  nor  when  it  wss  scratched 

I  read  over  the  probate  ?— No.  I  did 

n  looked  to  see  whether  the  name 

^ison  was  thrrc« 

Wiaual  to  rewi  the  probate  over  ?>-I 

}  liiat  ever  I  read  over  one  in  nay  life, 

^w  that  it  is  customary. 

hm  probate  produced  here?— This  it 

»Ute. 

I  crrr  seen  Willianis  before  that  time 

Uh  the  priiioner,  as  you  aay,  in  tlic 

Uiiiit  N-1  never  did ^  as  I  know  of  : 

1  AW  him  was  in  the  beginning  of 

"  1* 

bim  ainoe?-*-I  bavesereral 
with  bim  tigbl  or  ten  ymea  in 

I  y4liir  buflincsa  when  you  went  to 
"'""  n  pyrpoM  to  fiod  btra  out* 


A,  0,  1753* 


[7I« 


How  came  you  to  mistrust  hina  boinf  th« 
person  ? — 1  shewed  the  receipt  to  Carter,  and 
ho  &aid  he  was  very  confident  the  name  John 
Daunt  was  his  hand- writing. 

Have  you  no  other  wittiess  to  prove  thai 
than  Carter  P — No,  I  have  not* 

Did  you  make  use  of  any  tbreaU  P— No^  I 
did  not. 

Did  you  mean  the  will  and  power  was  th« 
hand-writing  of  JMurpby? — The  will  and 
power,  signing  and  all ;  I  mean  all  in  general. 

Did  yon  think  the  name  Dinish  Colhns  is  <»C 
a  different  writing  lo  the  other  names  f —  I  think 
it  is  ail  the  writing  of  one  hand. 

What  is  Carter?— He  was  on  lioard  tbo 
privateers,  not  the  same  cmi^,  but  the  cruizo 
before. 

Did  yon  shew  bim  the  will  ? — ^I  did,  and  ho 
said  the  name  John  Wilkinson  in  porliculsir 
was  Murphy ^s  band*  writing. 

Thomat  WilUami  sworn. 

Mr.  Hume  CamphtU  to  Noadt^  Do  yon  know 
tins  tiitn^K  f 

NoaJs,  This  Thomas  Williams  is  tbe  same 
man  thai  came  lo  me,  and  received  the  money 
in  the  name  of  John  Datmt 

Mr.  Hume  Cumphell  to  Wiiliatm*  Do  you 
know  Tiraotbv  Murpby  ? 

Wiliiams.  t  do,  it  is  the  pritoner  at  tbe  bar. 

Huw  long  have  you  been  acquainted  wiib 
him? — IVtliiamt,  1  was  acquainted  with  him 
aliout  a  month  or  five  weeks  before  the  begin* 
ning  of  February,  1760-1.  f  met  him  near 
Charlng*Cross  in  ilm  street  ;  we  went  to  a 
house  of  ill  fame  there  ;  I  believe  the  man  of 
the  house  his  nnme  is  Mullings,  he  is  a  Scotch* 
man  :  this  was  the  month  of  January  ;  he  took 
me  a' walking  round  the  park,  and  to  several 
places,  and  told  me  he  bad  something  to  relate 
to  me^  aod  if  I  would  be  niled  by  him,  he  wo«l4 
do  for  me,  aod  in  the  park  he  swore  me  to  no* 
crecy  (not  by  book  but  by  word).  He  first 
swore,  then  I  swore;  1  lotd  him,  if  it  beany 
thing  except  robbery  or  murder^  IM  stami  true 
to  him ;  the  next  dsy  in  tbe  morning  we  came 
to  this  Mullings's  house  ngiin. 

Can  you  recollect  what  lime  in  January 
17^0-1  this  was? — ^It  w«s  about  the  latter  end 
of  January^  Then  ha  said,  Come,  Williama, 
God,  ril  do  for  you  now.  He  took  me  up 
stairs,  into  a  large  niom,  and  called  tor  a  bowl 
of  pnnch,  sayintj.  This  m  cold  weather,  wc 
mu$t  drink  something  that  witl  make  us  warm  ; 
he  mitde  me  drink  pretty  heartily.  At  lost  he 
putied  out  a  whole  parcel  of  papers,  some  of 
them  were  prints,  some  i»ith  statnps,  and  some 
without ;  he  hrgan  to  bugh  and  smile ;  be 
said,  1  told  you«  1  bad  M^tnuthin^c  to  do  for  yoii^ 
now  ril  do  for  you,  said  he  ;  there^s  one  Wil- 
kiuvon  that  belongs  to  tbe  Princess  Amelia 
private  ship  of  war,  tbat  is  dead  on  the  coaH 
of  Guiney,  and  bis  money  can  be  takeu  by  aor 
body  *,  and  said,  1  will  go  for  it ;  a^id  1.  I 
don^t  understand  thai  way  of  getting  of  mo. 
ney  ^  aaid  km^  Damn  it,  what  a  foot  you  art, 
not  10  BOMl  to  get  laouey  at  to  tai«  a^taSAl 


T15]  26  GEORGE  II. 

there  are  several  of  my  acquaintance  (if  you 
were  to  know  as  well  as  I)  that  get  money 
enough  in  forging  seamen's  wills  and  powers, 
and  receiving  wages  and  prize-money  doc  to 
them ;  and  if  you'll  be  ruled  by  roe,  you  shall 
not  want  money,  for  you  shall  dress  like  a 
geutleman,  and  wear  a  sword  ;  tlien  he  rubl)ed 
his  hands,  and  said,  Drink  t'other  glass,  and* 
go  down  and  warm  yourself  by  the  fire :  I 
went  down,  and  left  him  with  pen,  ink,  and 
paper  ;  and  iu  a  short  time  after  he  called  me 
up  stairs  again,  and  told  me  he  had  writings 
drawn  up,  purporting  to  be  the  will  and  power 
of  John  ^Vilkinson ;  he  made  them  to  me  in 
the  name  of  John  Daunt,  and  he  called  for 
a  candle,  which  was  brought  lighted  ;  he 
took  a  piece  of  sealing-wax,  and  clapped  the 
seal  on  it,  before  the  name  John  Daunt 
was  wrote ;  then  he  wrote  John  Wilkinson, 
Thomas  Carty,  and  Dinish  Collins ;  then  he 
put  a  seal  on  them. 

How  many  seals  were  there? — I  believe 
there  were  more  than  one ;  there  was  one  to 
each  paper,  that  is,  the  will  and  the  power. 
After  he  had  sealed  them,  be  asked  for  a  pen- 
knife; I  lent  him  one ;  he  made  two  or  three 
different  pens,  and  said,  that  this  will  not 
do  well,  to  have  these  witnesses  all  of  one 
band- writing.  The  names  Thomas  Carty 
and  Dinish  Collins  were  for  two  subscribing 
witnesses. 

What  were  these  pens  made  for  ?— To  write 
the  names  with  different  pens,  that  they  should 
not  look  alike. 

Did  he  write  all,  both  on  the  will  and  power? 
«— He  wrote  it  all  over,  every  word,  both  the 
will  and  power,  and  then  took  and  aetSed  them 
vp,  and  pot  them  into  his  pocket. 

Did  he  say  any  thing  about  Wilkinson  owing 
Daunt  any  money  ?— lie  said  John  Wilkinson 
owed  John  Daunt  seventeen  moidores ;  these 
were  the  reasons  which  he  gave  to  ne  for  my 
going  by  the  name  of  John  Daunt,  saying,  if  a 
reason  should  be  required  ivhy  it  was  left  to  me, 
it  should  be  representetl,  that  this  Wilkinson 
was  indebted  to  me  these  moidores.  After  this 
we  went  to  some  other  house  of  his  acquaint- 
ance, where  we  drank  that  afternoon,  and  I 
went  to  bed  pretty  merry ;  the  next  rooming 
early  he  came  and  called  me  out  of  bed,  and 
desired  me  to  come  alone  with  him  to  the  house 
of  Thomas  Noads  in  CoTeman-street.  I  said,  1 
had  not  got  my  breakfast.  He  said.  Come 
along ;  what  a  blockhead  you  are !  we  will 
get  a  pint  of  purl,  and  go  about  our  business : 
then  he  burned  me  out.  After  we  had  had  a 
draught  of  purl  at  the  Castle  and  Horse-Shoe, 
Charing-Cross,  we  took  boat  at  Whitehall- 
steirs,  we  landed  at  the  Old  Swan,  and  went  to 
the  house  of  Mr.  Noads;  there  the  prisoner 
introduced  me  by  the  name  of  John  Daunt, 
and  said  I  was  a  very  honest  man,  and  that  he 
had  known  me  a  gfreat  while  to  keep  a  house  at 
Lisbon,  and  that  he  had  drank  at  my  house 
Mveral  times  in  com|mny  with  John  Wilkin- 
son ;  then  he  produced  this  forged  will  and 
poweTi  and  desired  he'd  pay  the  money  due 


IVidl  of  Timothy  Murpfiy,  [7 16 

to  John  Wilkinson,  for  his  services  on  bond 
the  Princess  Amelia,  a  private  ship  of  war,  te 
me,  in  the  name  of  John  Daunt.  Mr.  Noads 
and  he  talked  a  little  while  together ;  he  loM 
the  prisoner,  I  believe  I  can't  pay  ^ijop^  ^Us 
power ;  then  the  prisoner  said,  This  Wiftinfoa 
IS  dead.  How  long  has  he  been  dead?  said 
the  other:  said  Murphy,  I  believe  be  his 
been  dead  two  years,  he  died  upon  the  ooait  of 
Guiney :  then  Murphy  proposed  to  go  to  the 
Commons  (I  think  he  said  to  a  prodw)  IS 
prove  the  will ;  but  Mr.  Noads  told  him  It  p 
to  Mr.  Crespigny  to  do  it ;  we  went,  and  m 
our  way  thither  I  stopped,  and  said,  Monlfi 
I  don't  understand  what  you  are  aboni,  lls« 
lieve  you  are  going  to  play  the  rogue  will  me, 
I'll  notgo  a  step  farther ;  I'll  return  backtad^ 
and  tell  Mr.  Noads  my  name  is  not  DHt; 
I'll  divulgo  the  whole  affair  to  him.  m 
that  he  swore  vehemently,  and  took  iQia  gnil 
slick,  and  said,  he'd  dash  my  braina  ea^w 
have  me  hanged,  if  I  did  not  go  that  miMli^ 
and  prove  the  will  in  the  Commons. 

Where  were  yon  when  you  had  thia  €mim» 
sation  ?— It  .was  in  a  little  alley  not  hrfinm 
Coleman-street. 

Did  you  go  ? — By  the  fright  I  < 
with  bim,  and  by  his  desire  and 
and  there  in  his  presence  1  proved  the  will. 

To  what  proctor  did  you  goF— T»  Jlr. 
Crespigny  ;  there  the  will  was  prodoeed  wai 
proved. 

Look  at  this  paper,  do  yon  know  itf— llil 
is  the  very  will;  the  hand-writing  is  Mim* 
phy's ;  if  I  was  to  die  this  minute,  I  aa  s«s 
no  man  wrote  it  but  he ;  here  are  the  niBts,  I 
saw  them  wrote ;  he  wrote  this  didm  Mm 
Wilkinson,  with  a  fine  pen,  which  he  msds 
with  my  knife ;  he  wrote  also  the  other  naiMib 
Thomas  Carty  and  Dinish  Collins,  and  1  sa 
sure  I  saw  him  have  such  a  seal  in  his  poebl 
as  is  here  put  on  the  wax. 

What  did  you  do  after  the  will  was  pitt- 
ed?—Then  he  came  back  to  Mr.  Noadi^ 
house,  and  told  him,  the  will  was  proved  at  lbs 
Commons. 

Who  told  him  so  ?— Murphy  did ;  then  tbot 
was  a  letter  of  attorney  made  by  Murpfav't 
desire,  for  Mr.  Noads  to  have  power  to  recnft 
the  money  of  Mr.  Casamaijor,  who  he  told  as 
was  in  Bristol  at  that  time. 

Who  signed  that  power? — I  did,  and  Mor- 
phy  was  the  only  subscribing  witness  to  it; 
then  we  took  it  along  with  us,  (this  was  I  bs- 
lie? e  on  Saturday  afternoon)  and  on  the  Mss* 
day  he  called  me  very  eariy,  and  by  bisdeare, 
I  went  along  with  him  to  my  lord-mayor*!  of- 
fice, and  there  I  think  this  letter  of  attorney  wif 
re-executed ;  then  we  went  again  to  Mr.  Noads^ 
house,  and  gave  him  the  power  of  atlonwfi 
to  receive  the  money  of  Mr.  Casamaijor ;  tbfls 
we  went  away,  and  went  again  two  or  ihisi 
times  between  that  and  the  19th  or  SOtb  ■ 
February  :  on  one  of  them  days  we  reoeifi' 
the  money,  he  said,  he  had  from  Mr.Csii" 
maijor,  and  then  he  paid  me  S7t  ISi.  or  tki** 
abouts,  in  the  name  of  John  Dawit,  ii  ^ 


: 


for  Felony  and  Forgert/, 

-e6^iic€  of  Murfiby,  and  took  a  receipt  fur  Ibe 

ey ,  signed  by  me  ;    1  wrote  John  Daunt ; 

you'll   p lease  to  look,  youll  iee  a  lort  of  a 

l^le^    there  i^  a  letter  not  matte  ri(^bt ;  m- 

a%J    ot  the  letter  a,  1  was  goio^  to  write  o, 

^^as  forced  to  make  k  an  a  after^vards  ;    1 

not  knrtw  bow  to   write  Daunt  clererlj^* 

Bii»  lordiilTtpj  jury >  and  counsel,  looked  at  it* 

it  appeared  at  he  «aid.]     Murphy  said  to 

r.    >Joads,   I    have  taken  a  damnM   deal  of 

utile,  be  ought  to  sjiire  me sjonjtfihiog  for  my 

l)le  (we  bad  made  that  barg^am  before  we 

«  there,  that  1  was  to  nvic  him  half  a  gui- 

iti  the  preisence  of  Mr.  Noads,  to  induce 

t",  ^oada  10  believe  he  was  only  to  hare  that 

His  trouble),     I  ^ave  him  half  a  giiiDea  m 

«*.     Noads^s   ho  isCj  then  we  went  away,  and 

■a  little  distance  he  said  to  me,  Dou't  you  re- 

*>»ot>ibtT  you  ate  to  give  me  two  guineas  for 

"^y    trouble  in  making  the  writings,  over  aud 

ve  the  ball"  of  the   money  ?    I   was  very 

&tch  disheartened,   and  said,  Murphy,  111  j^o 

:^lc,  and  give  him  the  money  back,  aayio^^ 

i&  a  very  ynjus^t  ihini;^  I  will  not  carry  it 

y  ,  farther ;    be  swore  ilaninaliotLto  bis  soul, 

I  should  go  a^tep  farther,  beM  give  a  judge 

jwry  no  trouble,  but  he'd  dusb  my  brains 

^*<»t  if  i  did  not  go  forward,  and  bad  a  great 

*^ck  in  hi?  hand  at  the  time,  he  pushed  me 

^^oiii;'  before  him ;    I  was  afraid  of  my  life, 

■'^r  Vie  threatened  me  both  one  way  and  t*otb€r, 

^lOitr  lo  kiH  me  or  get  me  hanged:    then  I 

?ikid,  Take  all  the  money,  and  gave  it  him  all 

^1  hiit  hand,   I'll  have  uolbio^  to  do  with  it: 

*^  Bitswered  lo  that,  No»  no,  I  have  revealed 

^11  my  i^creti  to  you,  and  now  you  are  going 

^0  liii've  me  banged;    he  said,  V\l  take  two 

fii«neas«  and  half  the  whole  money  ;  which 
e  «lul,  and  gave  me  the  remainder  of  it. 

VV  ben  was  the  first  time  you  saw  Mr. 
Jloftda? — 1  neter  saw  him  till  I  went  with  the 
jirisofier  to  his  house,  tiov  never  saw  Wilkin- 
son* or  knew  that  there  wus  aucb  a  man  bving. 

When  did  yon  hc»r  Wilkinson  was  ultve? — 
I  never  heard  it  *iill  Mr,  Noads  came  to  me 
to  Cork  in  Ireland,  where  t  waa  a  prisoner  for 
debt, 

Had  you  seen  Mr.  Noads  between  the  time 
you  took  the  money  and  the  time  you  saw  bim 
ill  Cork  f — >io,  i  never  did. 

Cross  -  exa  mi  n  ation  • 

Caun.for  the  PrU.  How  much  punch  might 
driuU  at  the  house  nejkr  Chaiiiifv^  CrosS| 
rhen  yon  say  this  will  was  made  I*^ — WiiUams, 
I  bt^Ueve  we  drank  about  three  sliilbngs-worth. 

Did  you  call  lor  a  second  bowl  ? — No,  we 
^did  not. 

What  had  you  been  drinking  before? — We 
bftti  been  driuking  a  dram  eacb»  and  a  pint  of 
purk 

Then  you  was  a  little  in  li<]Uor,  vras  you  not  ? 
^l  WHS  tolerably  warm. 

Was  there  a  6re  above  stairs  P^No,  there 
was  not. 

Wbiit  time  of  the  day  was  it  that  you  wfts 
dtere  ? — It  was  in  the  moroiog. 


1755.  [718 

Bid  either  of  you  smoke  tobacco? — No,  we 
neither  of  us  did. 

What  did  you  do  with  your  candle  then? — 
That  was  brought  up  by  the  prisoner'^  desire, 
alter  he  bad  drawn  the  writtngs  up. 

How  long  had  you  been  in  the  bouse  befora 
the  candle  was  brought  you  ? — We  might  have 
been  in  the  house  two  hours  before  the  maid 
brought  it  up. 

How  long  had  you  been  in  the  house  in  all  ? 
— I  believe  we  mii,^ht  have  been  in  the  bouse 
two  hours  and  a  half  In  all. 

How  long  was  you  in  tlie  house  before  you 
went  above  stairs  f — It  mi£rht  be  above  ha!^  an 
hour  before  I  went  up^  which  was  when  be 
called  me. 

When  did  you  bear  the  name  of  John  Dauul 
first? — 1  never  heard  it  before  that  day. 

Where  did  be  get  the  waxf — He  bad  wax 
in  his  pocket,  and  I  believe  a  seal  too. 

Did  you  see  him  put  the  seal  to  the  wax  ?— 
I  did,  he  put  it  to  one  of  them  belore  be  wrote 
the  name. 

Did  be  to  the  other,  do  you  remember  ?— 
1  can't  say,  whether  be  wrole  tbe  other  first  or 
not« 

Which  dill  he  seat  before  he  wrote  the  name  ? 
— It  was  the  \vill. 

What  sort  of  a  table  were  Lbey  wrote  upon  f 
— It  was  a  table  big  enough  for  half  a  dozea 
men  lo  dine  at. 

Did  you  see  bint  write  all  tbe  will  ?— I  saw 
him  write  part  of  it»  that  is  I  hi?  latter  end,  that 
is  part  of  one  si'le,  where  tbti  witnesses  are; 
he  had  not  finished  it  w  ben  he  called  me  up. 

Had  he  ink  of  hts  own,  or  was  there  Any 
olher  that  be  made  use  ot? — There  was  a 
pewter  ink-stand  in  tbe  room. 

Are  you  sure  you  saw  him  write  the  name 
to  the  will? — 1  saw  him  write  them  three  same 
ntimcs  on  it. 

Was  there  but  one  ink-statid?— No;  there 
was  but  one  dish  with  ink. 

Were  these  three  names  wrote  wilb  the  same 
ink?^ — They  were,  but  with  dSflerenl  pens. 

How  lung  do  you  think  you  might  be  above 
stairs  ? — We  might  be  there  about  an  hour. 

Where  did  you  bestow  your  lime  the  other 
part  of  tbe  day  ? — VVe  went  and  walked,  and 
smoked,  and  Jraok  mostly,  for  it  was  very  cold 
weather. 

Then  you  must  go  near  being  fuddled,  waa 
you  not? — I  went  to  bed  brave  and  heavy,  I 
know. 

Where  did  you  live  then? — I  lodged  near 
Mr.  Manning's  at  Cbaring*cross,  atthcThistk 
and  Crowo:  Bob  Carter  lodged  over-againsi 
me. 

You  say  you  never  saw  Mr.  Noads  till  that 
time  the  prisoner  and  }'0U  went  to  bis  bouse 
the  beginning  of  February  1750-1 ;  recollect 
yourself  whether  you  had  not  seen  him  before  f 
—  1  had  not. 

Did  not  he  once  lead  you  half^a- crown  od 
your  Chatham- chest  ticket? — No,   he  never 
lent  me  any  thing. 
Do  you  kii(»w  ^Be&iargarot  WiUiamsf-"! 


I 


719] 


26  GEORGE  IL 


Tfud  qf  Tinuahy  Murphy, 


[790 


lodged  at  ber  house  sereral  niffhU ;  but  my 
proper jplaoe  of  kidging  ww  at  Mr.  Fok,  on  the 
back  orthe  Haymarket. 

Did  yoa  erer  patro  j^our  Chatham  ticket  ? — 
No,  I  never  did ;  f  might,  hot  I  don't  remem- 
ber I  did ;  I  am  almoit  sore  I  nerer  did  ;  it  is 
a  4l.  ticket,  that  is,  4/.  a  year  for  mv  life. 

Upon  yoor  oath,  did  you,  or  did  yon  not 
borrow  money  on  yonr  ticket  of  Mr.  Noads  ? — 
Upon  my  oath,  I  nerer  did,  nor  nerer  let  it  go 
out  of  my  possession  to  any  body. 

In  your  way  going  along,  you  say  your  con- 
science seized  you,  and  you  told  the  prisoner 
you  would  not  go  a  s^ep  farther;  was  that  the 
first  remorse  you  felt? — No,  I  had  a  remorse 
of  conscience  that  morning,  when  he  desired 
me  to  go. 

Did  you  belie? e  he  would  be  as  good  as  his 
word,  when  be  said  he'd  knock  yonr  brains 
out,  and  threatened  youP^I  did  by  his  coun- 
tenance. 

Was  he  with  yon  all  the  time  you  was  pror - 
ingthe  will? — He  was. 

Did  not  you  go  into  a  particular  office  to 
prove  it  by  yonrMlf  ? — No. 

Were  there  any  threats  made  use  of  in 
Doctors'  Commons  ?— No,  there  were  nou 

Was  you  under  any  surprize  when  you  was 
there? — I  was  under  mucn  fear. 

How  many  people  were  there  hi  the  room  ? 
— ^There  was  but  one  gentleman  there. 

Why  did  you  not  tell  the  gentleman  the 
affair,  that  lie  might  assist  you? — 1  was 
shocked  so,  that  1  did  not  know  what  I  had 
best  to  do. 

Did  you  swear  there  that  yonr  name  was 
John  Daunt  ?-~l  did,  by  the  prisoner's  direc- 
tions and  desire.* 

Was  any  body  with  you  nnd  Murphy,  when 
you  were  with  Mr.  Noads  ?— There  was  net  a 
soul  with  us. 

Why  did  not  you  tell  Mr.  Noads  that  it  was 
a  forgery  ? — 1  did  not  indeed ;  I  did  not  know 
what  to  do,  1  was  so  confounded. 

Who  wrote  tlie  word  *  Extor,'  afler  the  name 
John  Daunt,  on  the  receipt  ^— I  wrote  the  name 
John  Daunt,  but  I  don't  know  who  wrote  the 
word  *  Eztor,*  either  Murphy  or  Noads. 

Coun.for  the  Crown.  Which  do  you  believe 
wrote  it  f—TVt//iamf.    I  believe  Mnrphy  did. 

Coun.for  the  Prig.  Whether  your  remorse 
and  threatening  to  go  back  again  was  not  be- 
cause he  demanded  two  guineas  of  you  ? 

Williams.    No,  it  was  not. 
Did  he  demand  two  guineas  of  you  before, 
or  after  you  said  you'd  go  back? — 1  told  him 
I'd  go  back,  and  reium  the  money,  before  he 
demanded  the  two  guineas,  and  alter  too. 

How  loner  did  you  stay  in  England  af^  this 
transaction  ?— But  a  very  little  time,  about  a 
fortnight ;  I  was  obliged  to  go  down  to  Chat- 
ham to  receive  my  pension- money  that  was 
due  to  me  there. 

*  See  the  od mission  of  this  evidence  cited 
m^guendo  by  Nares  in  the  Case  of  Elizabeth 
Canning,  p.  454,  of  the  present  Volume. 


In  thb  great  remorse  of  eMweSence  tliat  yea 
had  before  and  after  you  bad  received  the  mo- 
ney, how  came  yoa  to  remaiB  a  IbitugliC  eat 
of  the  power  of  Murphy,  and  did  not  make  a 
disoavery  of  k  ?— I  was  afraid  to  go  aboot  it 
myself,  and  I  had  no  opportunity  to  do  it  till 
Mr.  Noads  came  to  m^  in  gaol  in  IreUod ;  I 
thought  the  very  stones  would  fly  in  ay  fiioe 
about  it,  and  he  hunted  me  out  of  tte  way  ai 
last  as  he  could. 

Q.  from  his  Lordship.  Why  did  IM  ysa 
0]fen  the  affair  before  my  lord-naayor  ? 

Williams.  I  had  not  the  sense  to  do  it ;  I 
was  directed  and  led  like  a  child  by  bim,  tifat 
pleased. 

[The  Receipt  read  to  this  pmporL] 

**  Received  the  20th  of  Febniary4750»1,if 
Thomas  Noads,  37/.  ]9<.  6d.  being  so  iMehht 
received  of  Mr.  Casamaijor,  per  probate  sf  Ac 
will  of  John  Wilkinson,  in  foil  balaDoe  ofkii 
account. 

JoHH  DArosT,  Emr/ 

£.37    IS    6 


Coun.  for  the  Pris.  to  Noads.  Who  added 
the  word  « Eztor'  to  the  reodpt,  after  thsMSM 
John  Daunt? 

Noads.   I  did. 

Pris.  I  desire  Mr.  Noads  may  be  pot  Si^ 
while  I  ask  Williams  a  questkm  or  two.  [b 
was  granted,  and  he  went  out] 

Pris.  How  came  Williama  to  bo  so  fttkd 
ah  to  the  day  of  the  month  that  he  meotwei  rf 
the  money  being  paid?  Whether  the  pssni 
were  not  shewn  to  him  by  Noads  since  f—wi* 
/mors.  No,  they  never  were  since  I  esasH 
England  ;  I  have  not  seen  one  of  them  13  I 
saw  them  now,  nor  BIr.  Noads  never  toM  m 
what  day  of  the  month  the  money  was  psitf. 

Whether  that  witness  ever  went  to  Mr.  Noli 
with  Mrs.  Williams  ?— No,  I  never  did. 

Whether  he  ever  heard  Margaret  Wiliiiai 
say  her  dependence  was  upon  Mr.  Noads M 
heard  her  say  there  was  some  prize-nooiy 
due  to  her. 

Did  }'0u  ever  bear  her  mention  one  Jooeif— 
1  don't  know  that  ever  I  heard  her  mentiootke 
name  of  Jones. 

Did  not  he  borrow  money  on  yonr  tkkct? 
Where  did  you  get  the  money  you  paid  berf-* 
I  pawned  my  watch  in  St.  Martin 's-laoe. 

Where  did  he  and  I  agree  upon  this?— A^ 
Mac  Miillins's,  a  bawdy-house. 

Did  I  pay  for  the  punch  there  ?— No,  lb< 
prisoner  took  care  of  that,  he  made  me  pay* 

Where  did  he  get  the  money  ?—Tli* 
prisoner  found  ro;;uei:ih  money  for  me. 

Noads  called  in. 

Coun.for  the  Pris.  to  Noadt.  Whether  ari* 
you  shewed  either  the  power  of  attorney i' 
will  of  Wilkinson  to  Williams  since  he  cutit^ 
England  ? — Noads.  No,  I  have  not. 

Whether  or  no  you  told  him  the  mooAj* 
which  yon  paid  the  money  to  him  ?— 1  ib>'^ 
it  him  m  Ireland. 


tl]  fm'  Felony  and  Forgery^ 

er  yon    have  niit  sioce  lie  came  to 

? — No^  f  have  nut. 


A.  D*  1753. 


[752 


Whether 

Dili  ever  Thomas  Williams  corae  to  your 
aloDg"  with  one  Mr:;*    VVilJiams  ? — ^No^ 


\er.  Do  you  know  Mrs,  WiUiamsp— 
dsn  Bhecame  tome  t»o  or  three  iJineSi 
Ad  told  ma  the  [iri^ouer  had  rohbed  her  of  her 
irr/.e-  iMoney. 

Whirn  did  you  see  her  bit  ? — I  belief  e  I  saw 
ler  iij  the  court- yard  this  mornings. 

Coun.for  the  i^rji.  Do  you  know  where  she 

now  f'^Noada,     No,  l  doo'i  know  thut. 

PriJ.  Was  not  Ihis  Mrs.  WiUiams  at  your 
bouse  in  Bell  Alley? — Noudt.  8lie  never  was, 

my  kuoff  ledge* 

Mr.  A  hi  er  man  Cockayne  sworn. 

[He  is  shewed  a  letter  of  attorney  made  to 

r.  Moads.] 

Mr.  Alderman  Cocka^tte.  This  was  re-eice' 
ruled  before  me;    herein  the  name  Timoiby 

urphy,  a  witness;  I  helieve  tlie  prisoner  is 
lie  ntan  that  wrote  it.  [It  is  read  to  this  pur- 
port:] 

^^  Know  all  tueo,  by  these  presentfif  that  I 
'ohii  Daunt,  executor  of  John  WtlkiDSon,  de- 
ceased, late  of  the  Princeis  Amelia  privateer, 
Ibr  certain  good  causes  and  considerations  me 
bereuntn  moring,  have,  and  do  h^rehy  nanje. 
Hake,  and  in  my  stead  and  |}iace,  put  and  ron- 

itule  Thomas  Noad^;  of  LondoUf  jg^enileman, 
ly  true  and  lawful  attorney,  revocable,  for  me, 
I  my  name,  and  to  my  use,  to  ask,  cliiim,  de- 
laud,  recover,  take,  and  receive  of  and  from 
he  agent  for  the  Royal  Family  [»rivateers>  or 

bom  else  tl  may  concern,  all  and  sinj^ular 
|uch   salary,    wa^es,  tickets,    bounty -money, 

ze- money,  short*adowance>uiouey,  smurt- 
pioney,  pensions,  and  all  other  sum  and  sums 
if  mooey  whatsoever,  as  now  Is,  or  at  any  lime 

times  bereatVer  shall  be  due,  payable,  and 
wkmging  unto  me,  for  my  own,  or  any  other 
'fi  service,  or  otherwise,  in  any  of  nis  ma- 
y's ships,  friiffflles,  or  vessels,  or  any  mer- 
^bant-ship,  or  ships ;  and  also  of  all  other 
^rsotior  persuns  whatsoever,  all  and  siitg^ular 
ticb  other  sum  and  f;uma  ot  money,  siilary, 
pages,  g^oods,  wares  and  merchandize,  iVef«rht, 
irofii^,  rents,  and  arrearii  of  rent^  debts,  dues, 
luiiei,  claims,  and  demands  whatsoever,  which 
\OW  is,  or  at  any  time  or  limes  hereafter  shall 
ed»e,  owing,  payable,  and  belonging  uolo  me 
»y  any  ways  or  means,  right  or  title  wbatso< 
^wer  or  howsoever ;  givmg,  and  hereby  grant* 
fig  unto  my  said  attortiey,  bis  substitutes  and 
isiigos,  alfmy  authority  and  lawful  power  in 
he  premises^  tor  receiving,  recoverinar,  obtain - 
Nig,  compoundintf  and  dischargintr  the  sume, 
|s  fully  and  eiTectually  u^  I  myself  might  or 
rfsuld  do,  being  personally  present,  and  ac- 
|uittanc«*s,  releases,  or  any  other  discharges  in 
ley  name,  to  make,  seal  and  deliver;  and  one 
Ittomey,  or  more,  to  make,  substitute,  and  at 
pleasure  to  revoke;  ratifying,  and  hereby 
Bonfirmin^  all  and  whatsoever  my  s&id  at- 
lomey,  bis  substilutet  and  assigns,  or  any  of 

VOL.  XIX. 


them,  sball  lawfully  do,  or  cause  to  be  dnne  in 
and  about  the  premisses  by  virtue  of  these 
presents.  In  witoess  whereof  I  huve  hereunto 
set  my  hand  and  seal,  the  9ih  day  of  February, 
in  the  2dd  year  of  the  reign  of  our  soveieii^^n 
lord  Georpe  the  second,  by  the  grace  uf  God, 
of  Great  Britain,  France,  and  Ireland,  king, 
defender  of  the  faith,  and  in  the  year  of  our 
Lord  1751.** 

John  Daitnt,  + 
*•  Sealed  and  delivered  (being 
ftv^i  duly  fltampeil)  in  the 
presence  of        Timotiiy  MuRpny." 
**  London,  re-executed  the  llih  day  of  Fc» 
bruary,  1750,  before  me, 

'*  F.  CociUYNB,  Mayor." 

Anihony  Devoyer  sworn* 

Anthony  Dcvoycr,  I  am  clerk  to  Mr.  Cres* 
pigny  the  proctor;  in  February  175Q'1,  f 
douH  remember  the  persons,  but  there  were 
two  men  applied  to  me  iu  the  absence  of  JUr, 
Cresmgny,  to  prove  a  will  of  J.  Wilkinson. 

What  was  the  executor's  name? — Ji  wui 
John  Daunt ;  the  person  pretending  to  be  to 
wafl  one  cti  the  two  that  desired  me  to  get  a 
probate  of  the  wilt  We  always  do  eniiuire 
where  the  testator  died,  and  when,  and  ive 
write  that  under  the  jurat,  that  it  should  be 
passed  to  the  seal.  The  deseriplion  of  the  tes- 
tator was,  that  be  was  a  batchelor,  and  hi* 
longed  to  aome  ship,  1  don't  remember  the 
name  ;  that  he  died  on  the  coa!»t  of  Guiney, 
within  the  time  there  limited.  [Be  is  shewa 
the  wilL]  This  is  my  hand -writing  on  it,  and 
this  is  the  very  will  brought  to  me  at  that 
time  ;  I  attended  'the  person  wEio  called  hi« 
name  John  Daunt  before  the  surrogate,  whd 
soiiscribed  his  nauke. 

Was  be  sworn  ?^He  was,  I  think,  in  my 
presence,  as  executor  to  the  wilt,  as  is  usual  on 
such  occasions,  and  upon  that  the  probate  was 
|itst  under  seal  afterwards,  wbicli  is  dow 
upon  it. 

Cross-examination. 

Court*  for  the  Pri$,  You  say,  you  can't 
swear  to  the  persons  ofthe  two  men  that  came? 
—  Deroycr,  No,  8ir,  I  cannot, 

€oun»  for  the  Crown,  Can  you  recollect 
what  passed  at  the  Compter,  when  you  saw 
the  prisoner  there? — J}evoycr\  I  was  at  the 
Compter ;  the  prisoner  there  told  me  be  remcm* 
liered  me ;  he  there  told  me,  while  I  was  gone 
to  e;€  t  the  executor  sworiii  he  was  in  conversation 
with  Mr.  Crespigny. 

Did  he  mention  any  thing  of  his  being  the 
person  that  came  afong  with  the  pretended  exe- 
cutor?— Yes,  Sir,  he  did, 

Coun.Jhr  the  Pris.  When  was  this  conrcr- 
sation  ? — Dezoyer.  This  was  the  day  that  the 
first  hill  w*a8  thrown  out. 

When  you  carried  Daunt  in  to  be  sworn,  did 
that  other  person  go  with  you  into  the  room?— 
i  believe  we  left  him  in  the  office. 

I'hotftas  Dyer  iworn. 

Dyn-.   I  was  constable.    Mr.  Noads  applied 
JA 


4 


723]  26  GEORGE  11. 

10  me  to  take  the  prisoner  tt  Newintltoii  on  the 
other  ude  the  water ;  I  wai  at  my  houae  orer- 
riji^ht  the  Black  Prince,  and  Mr.  Noads  was  at 
the  Blpck  Prince,  and  one  Frith  brought  me  the 
warrant.  On  the  Saturday  morning  Murphy 
bail  been  with  me  to  justice  Hammond  to  as- 
sist roe  with  a  prisoner;  I  promised  to  paj 
him ;  became  on  the  Monday  morning  for  hu 
money ;  I  said,  IMI  pajr  you  presently,  but  I 
hsTe  fifot  a  warrant  against  you :  he  said,  For 
what  ?  and  wanted  to  see  the  warrant :  I  told 
him,  I  would  not  shew  it  biro.  The  otlier  man 
rPrith)  said,  it  was  for  forgery,  and  asked  him 
if  he  knew  Mr.  Noads;  he  said.  Yes.  This 
was  as  we  were  going  along:  he  desired  to 
walk  by  my  side.  Frith,  at'  the  same  time, 
went  out  to  fetch  Mr.  Noads  from  the  Black 
Prince ;  the  prisoner  turned  on  his  heel  and 
ran  away,  and  kept  calling  out,  A  poor  debtor ! 
A  poor  debtor !  I  ran  after  him,  akid  called, 
Stop  thief!  knock  him  down. 
.  Was  Mr.  Noads  in  sight  when  he  tamed  to 
rnn  away  ? — I  cannot  say  whether  he  was  or 
not ;  but  if  he  was  at  the  Black  Prince  door, 
the  prisoner  might  see  him  very  well. 

How  far  did  he  run  ? — He  ran  into  a  brick- 
field ;  there  we  took  him  again,  and  we  car- 
ried him  to  the  Black  Prince ;  then  I  went  to 
get  my  breakfast  till  they  were  ready  to  go ; 
then  we  took  him  before  'squire  Clarke,  and 
from  thence  to  alderman  Chitty.  I  delirered 
liim  up  to  Mr.  Ward  on  London-bridge  as  we 
ivere  going,  and  went  with  him  before  the  al- 
derman as  an  assistant;  then  the  prisoner 
was  charged  by  Mr.  Noads  for  forging  a  sea- 
mao's  win ;  the  prisoner  said,  be  knew  no- 
thing of  it. 

J>o  you  recollect  he  said  any  thing  about 
half  a  guinea? — Yes  ;  he  said  be  had  half  a 
guinea  for  kigning  a  letter  of  attorney. 

Cross  -examination. 

Counsel  for  the  Prisoner,  Had  he  been  told 
what  he  was  taken  for,  before  he  ran  away  P— 
Dj/er,    He  had. 

He  soon  stopped,  1  suppose,  did  he  not? — 
He  stopped  when  he  could  run  no  farther ; 
there  was  on"  Fielder  went  to  stop  him,  and  he 
ran  against  him  to  knock  him  down,  and  turned 
him  round. 

Counsel  for  the  Crown,  When  he  stopped, 
did  he  surrender ;  or  what  did  he  do  ? — I^l^er. 
No,  he  then  took  up  a  brickbat,  and  swore  he'd 
kill  the  first  man  that  o*)posed  him. 

John  Frith  sworn. 

Frith.  I  am  senrant  to  the  master  of  Dul- 
u  ich  college ;  I  was  applied  to  by  Mr.  Noads 
to  endearour  to  discover  and  take  up  Timothy 
Murphy,  the  prisoner  at  the  bar;  and  was  by 
uhen  the  constable,  Mr.  Dyetf  took  him  at 
Newington. 

Was  Mr.  Noads  by  at  the  time? — No,  he 
%vas  not;  the  prisoner  asked,  what  he  was 
taken  up  for?  Mr.  Dyer  would  not  tell  biro: 
he  said.  Pray  gentlemen,  what  am  1  taken  up 
fbr.^    I  desire  to  kaoir:  then  laid  I,  Jf  you 


Trial  of  Timothy  Murphy , 


[72t 


most  know,  it  is  for  forgery  ;  laid  he.  Upon 
what  account?  I  said,  1  can't  tell,  hut  111  go 
to  a  gentleman  hard  by,  and  he'll  Idl  you. 
Then  I  went  for  Mr.  Noads ;  and  when  1  waa 
at  a  little  disUnce,  I  heard  the  oonstable  call 
out,  Stop  thief!  then  I  turned  agaio,  baO  was 
too  far  behind ;  he  waa  taken  and  aeeorad  be- 
fore I  came  up. 

How  far  was  you  from  the  plaoe  where  Mr. 
Noads  was,  when  he  ran  away  P — I  waa  aboot 
200  yards  from  him. 

Whei^  was  Mr.  Noads  when  yon  heaid  tkt 
cry,  Stop  thief  ?— He  was  at  the  Black  Maes. 

Was  be  within  or  out  of  the  houaeP — ^I  cmI 
tell  which. 

Did  he  attempt  to  break  away  tiU  jaa  W 
informetl  him  it  was  for  a  forgery  P— Nl^  hs 
did  not. 

Mr.  Woodman  sworn. 

Woodman,  I  am  keeper  of  the  Pariirr 
Compter.  [He  is  shewed  a  commitment]  1 
remember  this  bebg  brought  to  me  with  ik 
prisoner  on  the  S7tb  of  July  ksl,  the  day  il 
bears  date,  to  the  Poultry  Compter. 

What  is  he  charged  with  m  that  mmmit 
ment  P — He  is  charged  before  aldennao  ClJttf, 
by  the  oath  of  Thomas  Noads,  opoo  a  nakat 
suspicion  of  being  concerned  with  one  Jsbs 
Daunt,  not  yet  taken,  in  publishing  and  otter- 
ing a  false,  forged,  and  counterfeit  will.  It  ii 
signed,  Thomas  Chitty. 

Mr.  Hume  Campbell.  My  lord,  ia  As 
general  course  of^  business,  witneases  us 
not  produced  to  support  the  charaet«  if 
a  prosecutor,  unless  his  character  is  impeMb- 
ed  either  by  eridence  or  the  nature  of  lbs 
transaction  itself;  in  the  present  instaso^ 
the  gentlemen  have  taken  an  objection  to  Mr. 
Noad's  com[)etency  as  a  witness ;  it  hss  bees, 
with  great  justice,  oyer -ruled  in  that  respect, 
but  left  to  operate  on  his  character  with  (be 
jury  :  the  indictment  against  him  has  bees 
read  in  evidence :  it  is  an  indictaient  agaiist 
him,  together  with  the  other  witness  to  tbc 
fact,  and  upon  the  back  of  it  stand  Mr.  God- 
dard  and  two  or  three  more.  This  being  sd* 
mitted  evidence  against  his  cliaracter,  we  ait 
proper  to  produce  evidence  in  support  of  Mr. 
Noads's  character,  and  I  hope  your  lordsbip 
will  be  of  opinion  we  are  regular  m  so  doing. 

Lord  Chief  Baron.  You  have  a  right  toil 
under  the  circumstances  of  this  case. 

To  the  Character  of  Thomas  Noads. 
Nicholas  Magens,  esq.  sworn. 

Mr.  Magens,  I  have  known  Thomu  Notdi 
ever  since  he  came  to  London,  which  is  aboot 
seven  or  eight  years  :  it  was  about  the  begis* 
ning  of  the  breaking-out  of  the  Spanish  wsr. 

What  is  hb  general  character  P—  I  have  si* 
ways  known  him  for  a  very  diligent,  saber, 
promising  young  msn  ;  1  have  all  the  resiia 
10  the  world  to  believe  him  so,  and  doa'l  d0# 
his  integrity  in  the  least. 


r25J  Jot  Fehny  and  forger^i 

Cross-eA'amiiieil.  I 

Coumtl  for  the  Prisoner.  Do  you  llimk  he 
^ould  imt  Kay  what  in  false  to  save  his  own 
life  ? — Magent.  I  can't  answer  lo  lb  at. 

James  Laroche,  esq.  sworn. 
Mr.  Larocfu.  Ttiis  is  the  seconil  time  I  have 
come  fioai  Bristol  to  Limdon  to  speak  to  Mr. 
Ncads*a  character  :  1  have  known  hLm  ei^ht  ' 
jrears.  I  knew  him  at  Bristol^  where  he  wai 
under  the  direction  of  a  gentleman  th^re  (that 
tleman  is  so  tn6rm  he  canU  come  up.)  Mr. 
behaved  so  well  therci  thai  lite  g'entle- 
recominended  him  to  my  brother  in-law, 
r.  Heory  Casamuijor,  to  transact  his  great 
^afiairSf  bein^  a^eni  for  very  rich  prizes ;  he 
behaved  diligently  through  the  whole  transac- 
iioiD,  I  have  heard  many  speak  welt  of  him  in 
Bristol,  and  never  heard  any  thing:  reelecting 
0D  his  character  in  my  life.  1  don't  think  he'3 
!  guilty  of  a  forgery. 

Johfi  EltiSf  es().  sworn. 

Mr.  EHis.  I  have  known  Mr.  Notds  these 
.mx  years  ;  I  believe  him  to  be  as  honest  a  man 
any  man  whatsoever ;  1  don^t  think  beM 
4o  a  scandalous  thing;  1  don't  think  he  is 
capable,  for  any  lucrative  fiews  whatsoever,  to 
lie  guilty  of  a  torgery. 

Mr*  Alderman  Iromide  sworn. 

Mr.  Alderman  Iromide.  I  have  known  Mr* 
Noads  about  seven  or  eight  years ;  he  has  iKeen 
coDcerned  in  an  affair  where  I  am  interested, 
la  which  he  hut  always  acted  with  great  dih< 
■pence  and  prudence  ;  I  have  trusted  him  with 
&rge  sums  of  money  ;  it  has  been  in  liis  power 
ic»  have  injured  na,  but  I  never  had  any  occa- 
mon  or  room  to  doubt  his  honesty  ;  i  doo^t 
believe  he*d  he  guilty  of  a  forgery  on  any  con- 
•ideration. 

Henri/  Ctisammjor^  esq.  sworn. 

Mr.  Cataniaijor,  1  have  known  Mr.  Noads,  1 
believe,  ten  years. 

What  is  hiis  general  character  ?— As  good  as 
•ny  man^s  in  betng,  both  tor  hnnesiy  a tid  in- 
dustry ;  I  have  had  great  experience  of  him  } 
b«  was  with  me  from  u  child :  1»  from  my  good 
opinion  of  him,  recommended  him  to  my  bro« 
Ibcr;  he  might  hare  wronged  me  nf  large 
siinis  of  money  ;  I  never  found  a  di^ponitioti  iu 
btm  either  to  wr^ng  me  m  any  body  else. 

Mr.  Nitres.  I  desire  the  first  part  of  the  will 
may  he  read.     [It  is  read,] 

1^      '*  In  the  name  of  God,,  Amen.     1  John  Wit- 
lldiiflOD,  late  of  the  Princess  Amelia  privateer." 

I      Counsel/or  the  Prisoner,    Now  read  in  the 
probate.     [It  is  read*] 

'<  The  last  will  and  testament  nf  John  Wil- 
kinson,  of    his  inajcJity'H  ship  the    Priticess 
'  jlmelia.*' 

Counsel  for  the  Pristnter.  There  is  a  differ - 
ence  hetweeo  his  majesty's  ship  atid  a  pri- 
vateer. 


A.  1),  1755.  [726 

Jjfrd  Ckiff  Baron,  The  probate  being  a 
wrong-  descripnon  does  not  altrr  the  case  ;  sup- 
pose there  had  been  no  probau^  ai  all,  the  pri- 
soner is  indicted  for  fort;iiifcf  the  win. 

The  Prisoner  beiug  called  u|}on  to  make  Ms 
Defence,  sniil  only,  thut  they  had  swore  at 
thev  thought  proper. 

Whereupon  the  Lord  Chief  Barc^ii  summed 
up  the  evidence  to  the  jury,  who,  in  less  than 
a  minute,  gave  in  their  verdict,  Guilty,  Death, 


Immediately  after  this  Trial,  Mr.  Thomas 
Noads  und  Mr.  Robert  Carter  were  tried  for 
this  forgery  ;  hut  were  honourably  acquitted, 
and  copies  of  tbetr  indictments  granted  them 
by  the  Court. 

The  CoNrEssioH  of  Timothy  Murphy. 

**^  X  was  taken  up  in  the  month  of  July  by  the 
orders  of  Thomas  Noads,  clrrk  to  the  mana- 
gers of  the  Royal  Family  privateers,  for 
forging  the  will  of  John  Wilkinson,  late  be- 
longing to  the  Princess  Amelia  privateer,  being 
one  of  the  ships  that  composed  the  said  Royal 
family,  and  was  commiited  to  the  Poultry- 
Ctimpter  for  the  said  f»fl>nce ;  and  on  that  daji 
and  the  day  after^  one  Patrick  FtauiLran  came 
to  me,  and  asked  what  motive  induced  me  to 
sign  a  general  release  for  my  sliure  of  my 
pnze-money,  to  the  said  munagers  ?  J  matfe 
answer,  that  Mr.  Belchier,  antl  (he  rest  of  the 
gentlemen,  had  lung  belbre  that  time  advanced 
me  twunty  pounds,  when  I  was  in  want  of 
money ^  and  that  they  behaved  to  me  with  the 
greatest  honour.  The  said  Flauigan  further 
asked  me,  how  came  I  to  give  a  receipt  I  or 
.^4/.  and  upwards,  and  insinuated  so  much  was 
not  due  to  me,  and  desired  me  n(»t  to  conceal  it 
from  him*  for  that  he  was  acqnainled  with  the 
whole  afffiir:  and  said,  if  I  had  a  million  of 
lives,  unless  I  would  do  one  tiling,  L  was  a  lost 
man.  I  then  went  on  my  knees,  and  begge^i 
for  Heaven^a  sake  he  would  let  me  know  what 
that  was.  41e  made  answer.  Not  yet;  andsaid, 
1  know  you  have  been  a  tool  to  Mr.  Noiiib  a 
long  time,  and  asked  n»e,  who  came  lo  me  from 
him  or  any  of  the  saiil  inHUcigers?  I  told  him, 
[  had  not  seen  or  heard  froui  any  of  them.  He 
then  said,  Keep  your  own  miiiil  from  (hem  :  1 
commiserate  )/our  present  situation,  1  will  call 
at  cuother  time.  And  gave  ine  ISii.  Iu  a  tew 
days  after,  he  came  again,  aod  asked  me, 
whether  the  said  Noad^,  or  anv  of  the  said  c^en- 
tiemeu,  had  been  with  tu€.  I  answered,  They 
had  not.  He  then  gave  me  lialf-a-crown,  and 
aai<l  some  of  them  vtould  sendto  me  with  direc- 
liuns  to  write  to  Mr.  Belchier,  and  advised  me 
not  to  autiwer  that  I  would,  and  said,  Do  not 
write  at  your  peril ;  and  promised  to  come  next 
night,  which  heaceordiiit^ly  did,  and  advised  ' 
me  to  jfetsome  per8<m  in  prison  t*  writea  Iflter  ' 
to  Mr,  Bi'lchier,  but  not  to  have  any  thing  * 
mentioned  m  relation  to  the  said  will  (I  SO 
unfortunately  forged  of  the  said  Jolm  Wil-'^ 
kinsou).  Be  went  away  and  promisetl  to  'I 
eume  again.  He  came  attain  ilie  sume  night,  *  j 
when  I  shewed  him  the  letter  1  caused  t» 


727]  26  GEORGE  n. 

be  wrote,  which  he  desired  I  woald  send  to 
Mr.  Belch ier ;  and  after-  inaoy  assurances  of 
friendship,  he  went  away,  and  said  he  would 
come  the  next  ni^ht.  The  day  atUr,  Mr.  Uo- 
binsoo,  clerk  to  Mr.  Delchier,  came  and  shewed 
me  the  letter  1  sent,  and  asked  me,  if  it  was 
not  my  hand-uritinGf;  I  told  him,  it  was  not. 
lie  desired  me  to  write  my  mind  freely  to  Mr. 
Belchier,  in  my  owp  hand -writing,  which, 
after  he  went  away,  I  accordingly  wrote,  with 
a  full  resolution  to  send  to  Mr.  Belchier,  in 
order  to  open  the  whole  affair,  and  rely  on  his 
mercy.  He  the  said  Flanigan  called  soon 
after,  and  told  me  Mr.  Robinson  bad  been  with 
me,  and  asked  what  he  said  :  I  told  him,  that 
be  brought  back  the  letter  be  directed  me  to 
send,  and  asked  me,  if  it  was  my  band- 
writing:  I  told  biro  it  was  not ;  ancf  that  be 
had  directed  me  to  write  in  my  own  band  ;  and 
that  I  had  wrote  such,  but  bad  not  sent  it.  He 
then  replied.  Did  not  I  tell  you  that  was  a  dead 
sett  for  you  r  That  a  letter  under  your  own 
band  is  what  will  cast  you  in  court  ?  and  told 
me,  that  he  bad  been  with  Mr.  Belchier,  and 
the  rest  of  the  gentlemen,  the  said  managers, 
and  that  he  was  in  great  friendship  with  them, 
and  knew  all  their  secrets  ;  and  said,  I  was  a 
dead  man,  if  I  sent  such  letter,  or  acted  con- 
trary to  his  advice.  Then  I  said,  The  Lord 
have  mercy  upon  my  soul,  I  fear  my  life  is 
gone  at  any  rate.  Replied  Flanigan,  If  they 
can,  you  fool,  do  you  know  how  far  it  lies  on 
them  to  do  so  ?  I  said,  I  did  not ;  neither  did  I 
kuMw  what  service  my  life  could  be  to  them : 
and  said,  it  was  the  general  character  of  Mr. 
Belchier,  that  he  was  merciful,  and  that  the 
gentlemen  prisoners  in  the  Compter  had  so  as- 
sured me.  Flanigan  then  replied,  Wliat  a 
great  fool  you  are!  toke  special  care  of  them  ; 
as  sure  as  death,  they  are  set  upou  to  get 
words  out  of  your  own  mouth  ;  and  advised 
me  to  keep  liiy  room,  and  keep  my  secrets, 
otherwise  il  \\oiild  nut  be  in  his  power  to  have 
me  saved.  I  then  went  down  on  my  knees, 
and  prayed  to  the  Almiifhty  to  have  mercy  on 
my  soul,  and  that  he  (Flanigan)  would  assist 
me  :  he  desired  mc  to  get  up,  and  assured  me 
that  1  should  be  saved,  if  1  took  his  advice, 
and  that  he  had  been  that  day  about  mc;  and 
told  me,  I  need  not  fear,  for  there  was  one  of  . 
the  persons  was  a  duke  of  very  great  interest ;  i 
and  told  me,  he  had  causetl  a  letter  to  be  pre- 
aented  to  the  duke,  which  be  received,  and 
declared  he  would  stick  to  that  cause,  and  that 
be  would  acquaint  his  majesty  thereof,  and  that 
I  shoulil  have  his  interest :  I  desired  him  to 
explain  himself,  what  he  meant  by  that  cause. 
He  said  he  would  not  then  tell  me,  but  again 
advised  mc  lo  keep  niy  room,  and  avoid  speak- 
ing to  any  pei-^ons,  and  gave  me  one  shil.ing, 
and  went  awa>  :  came  again,  and  told  me  he 
had  been  at  OiKJtors  Commons,  and  saw  the 
forjred  will  and  that  he  knew  the  name  Dinish 
Colhos  subscribed  as  a  witness  to  the  said  will, 
to  be  the  handwriting  of  «aid  Noads,  and  said 
It  was  m  vam  for  me  to  deny  it ;  and  insisted 
H  Vii  fo,  and  thalbe  would  twctr  U  to  be  10 


Trial  of  Timothy  Murphy^  [728 

and  that  it  must  be  so,  and  said.  Yon  are  now 
under  no  restraint,  and  might  and  ihoubl  bo 
admitted  a  king's  evidence,  provided  I  would 
impeach  the  said  Noads ;   and  said,  il  wm  ia 
vain  for  me  to  deny  the  forgery,  sajring,  1  can 
and  will  prove  the  body  of  the  said  will  lo  be  all 
of  your  hand-writing,  when  subpoenaed  oolbo 
trial ;  but  said.  If  you  impeach  Noada»aiid  aio 
admitted  an  evidence,  you'll  make  him  aqMik ; 
and  assured  me  that  nothing  else  could  eave  mf 
life :   and  assured  me  afterwards,  thai  aU  the 
managers  would  be  prosecuted  by  the  kiof  aai 
government,  but  did  not  explain  tor  what;  aai 
said,  if  I  did  not  bang  they  must ;  and  if  H 
cost  them  10,000/.  thejr  would  cast  oae;M< 
desired  me  to  give  bim  one  of  the  hittm 
out  of  my  sleeve,  and  said,  The  man  to  «bn 
this  is  to  be  given,  is  a  person  whoae  iilm* 
will  save  your  life ;   repeating  at  the  jhi 
time,  that  Uie  dependance  of  78,000/.  was  m 
the  said  will.     I  then  said.  The  Lord  hm 
mercy  on  me,  I  am  a  lost  man.    He  tlwn  14 
the  managers  want  you  to  submit  lo  be  CMt| 
and  they  will  promise  to  save  you,  (Ihey  «V 
tell  you  so^  I  know  it  to  be  what  Ih^  «e 
upon,  but  for  your  life  dooH  send  them  a  aoal 
from   under  your   band ;   if  you  do,'  it  wil 
be  impossible  to  save  vou ;    and  aaid,  bekaev- 
all  their  secreU,  and  that  they  could  do  ualAu^ 
without  his  knowledge,  and  gave  me  hatf-a- 
crown,    and   went   away.      He    came  atit 
moniing,  and  told  me  that  one  Robert  Cartw^ 
band- writing  was  procured,  and  compared  vidi 
the  names  to  the  said  will,  and  that  it  apfMHtd 
he  the  said  Carter  was  also  concerned  w  shJ 
forgery  ;   and  said  there  was  a  decree  gmHi 
against  the  managers  for  all  tbe  money  ;  ui 
unless  I  was  hanged,  they  never  could  ff<t**cr 
the  decree :  now,  says  Flanigan,  ifyoufliaeb,  I 
shall  be  subpcenaed  to  prove  the  will  to  be  jm 
own  hand- writing,  and  said  he  would  notpeiiHrl 
himself  for  any  man ;    and  then  insinuated  ny 
I  i  fe  was  in  his  hands.     H  e  then  went  away,  SM 
came  the  next  day,  and  produced  me  a  Idlv 
from  commodore  Walker,  giving  me  a  Mrid 
charge  to  stand  on  my  defence,  assuring  m 
his  interest   nith  the  duke  of  Argyll  wooU 
save  in V  life;  and  Flanigan  then  gave  nea 
strict  charge  to  stick  to  whatever  should  be  prs- 
scribetl  to  me,  and  that  he  would  let  me  kaov 
from  time  to  time  all  tbe  said  managers'  fceorcM. 
He  then  swore  me  on  a  book  not  to  make  ofS 
of  his  name,  or  to  discover  what  eonversatisa 
had  or  should  pass  between  him  and  the  penoi 
who  should  produce  to  him  the  said  sleeve 
button,  and  that  1  should  not  call  bini  by  tsy 
oilier  name  than  Mr.  Friend,  and  told  me  ns 
had  also  sworn  that  person,  meaning  Goddsr^i 
not  to  mrniion  his  name  before  me.    Thai  sa 
the  same  day,  after  Flanigan  weut  away,  Mr» 
James  Goddard  came  to  me,  and  introdocii 
himself,  and  called  for  a  pint  of  ^>d*»  •■■ 
asked  mc  how  1  did  ;  and  bid  me  have  a  gom 
heart,    and  then    presented  the  said   slfHJ 
button,  and  told  me  he  was  a  man  of  as  fjd 
a  fortune  and  as  great  interest  aa  wy  oN** 
m«nageri  were  i  and  said,  he  thought  il  M* 


fit  Fchntf  and  Forgery. 

.fF  for  mo  that  he  huil  purchasetj  tbe 
tlur  ftai(J  FUr»iij;iiQ»  whom  he  immeit 
me  ot  31  r,  Friend;  and  »(ii«i  such 
him  tiftjr  pounds,  in  order  lo  get 
IM  of  the  niiid  inaau^ers ;  mid  told 
iFricnd  WMS  ter^  great  with  I  he 
aad  nil  of  tlietn,  Aod  without  hit 
kj^  hie  couid  not  be  sa?«d.  He  said ^ 
^W  ^'  hII  that  passed  hettveen  me 
tml  wiid  that  Friend  could  and 
'»e  the  lorgcry  ajsfainst  Carter  and 
I  well  ai  1,  Slid  thftt  1  mij^ht  freely 
\%tn  %  and  said,  that  Friend  was  to  be 
A  M  nn  indiAt'rent  i^^enuni  aj^ninst 
kd  IbftI  he  would  swe^r  that  Noarls 
Mid  nfttne  Dmish  Collins^  and  that 
d  lern  the  watd  will  in  the  Commonsi 
|frove  the  bi>dy  t«  he  my  hand-writ- 
«SfireBHcd  himtieh  much  in  the  same 
Friend  li»d  repf  aied,  before  he  told 
'riend  acted  as  aiturney  for  coinmo- 
1^ :  he  ifttve  me  a  crown,  and  said 
salt  fk^ain.  He  came  the  next  ilay, 
l»ed  himself  to  the  purport  afoneaaid, 
lie  WiiuJd  cull  the  day  afier ;  ami 
he  at  my  peril,  tmt  lo  write  to  the 
Iclchier:  then  went  airuy,  and  tie|^- 
niDi^  accordiuji^  to  ptomtse^  which 
^*:ty  uneasy  in  mind,  and  induced 
tc  a  U  tter  tu  the  t>aid  Friend,  pur- 
thoii^lu  It  was  a  fichenie  Imd  be- 
I  acid  ttod<iard  to  lake  awav  ^t\y  lite  \ 
would  rtTite  to  .^Ir.  Belch ler.  8«Hin 
came  to  me,  and  terld  me  of  the  i 
Aaid  tt  frig  1 1  ted  him  and  Friend, 
rmdd  not  write  in  lUat  manner 
«imiriii{r  me  I  need  not  t»e  afraid, 
'  I  would  nut  communicate  la  any 
paaaed  ;  telling  me  1  was  safe.  He 
pa|>er  oui  of  his  pocket,  which  he 
puriMiriin^  what  I  Has  to  swear 
Id  me  I  had  no  business  to  deny  it, 
knew  it  lo  be  true^  and  that  he  would 
it;  and  ^uid^  the  tvame  seal  which 
illy  Ftiend  ai»^ured  him  was  th^ 
'm.  He  then  took  anoihtr  paper  out 
ir"  f  if  -fot  file  to  sign  it,  purport- 
in  evidence,  and  addresNed 
u  i-iMU^  ;  he  wrote  nomethlny'  more 
pajM^r  he  hnmvfht,  and  m:ik1  my 
Ln.M  If.it  otf,  and  assured  me  it 
I'  direciiona  that  1  wan 

ily  judg-e  by  that  what 
upon  ;  asaurmi;  me  fd'  his  triettd- 
went  away.  The  next  morning'  he 
told  me  Y  should  be  sent  for  to  sir 
iikey^ii,  ami  that  my  irons  shouhl  he 
which  Dccordtti^ly  were*  He  tlien 
hr  wiid  pnf»er  he  had  so  first  pro* 
'  '  d  me  to  recollect 

I ;  and  to  stick  to 
»y  11  r>  lost.     1  WHS  car- 

pb    I  ami  in  the  pre- 

lan  i  iiMiv,  inuldtird  aptieareil, 
k ;    Goddird  tmik  out   tne  said 
a*k44  lua  •«?  tral  quevtmns,  us  did 
id  sent  tti«  back  ;  GodiUrd 


A,  D»  nss. 


[730 


came  to  me,  and  had  me  in  private,  and  told  \ 
me  I  should  be  sent  for  ajjuin  to  be  esramined 
the  next  day,  and  then  proiiuced  the  sEiid  pa*  i 
per5,  and  made  some  ameudmeiits,  and  de-<i 
liired  me  to  stick  to  it.  Tfie  next  ilay  1  was  I 
carried  to  sir  Joseph's,  alderman  Chitty  wa«  j 
there  ;p  Guddard*  Lock,  and  the  tiaid  John, 
VV I iLutflou^  attended;  and  Wilkinson  shewed 
me  a  Buhpceoa  he  was  served  with  by  Noadsi| 
to  prosecute  me  at  the  Old-Biiiley  ;  atid  God* 
dard  there  asked  me  se?eral  questions,  as  did 
also  the  justice ;  and  the  annwers  I  ^ave,  wer«  . 
calculated  by  the  false  counsel,  instructions, 
and  advice  tlie  said  Goddard  and  Friend  ifave 
me,  without  doin|f  which,  they  assured  me,  mr 
life  could  not  be  saved.  I  was  sent  back,  God* 
dard  freijuenlly  came  to  me,  and  advanced  me 
money  from  time  to  time  ^  and  one  morn  in  ff 
he  tofd  me  he  had  thought  of  a  thing  whic& 
would  prevent  the  hill  being  found  agamst  me, 
which  he  afterwards  told  me  was,  that  the 
forf^ed  will  was  proved  at  the  Commons,  as  the 
will  of  John  Wilkinson,  who  belonged  to  bii 
majesty's  ship  the  Princess  Amelia,  The  day 
the  hill  was  throu  n  out  by  the  grand  jury,  that 
was  preferretl  against  me,  f^oon  after  Goddard 
came  to  me,  ami  Void  me,  that  alderman  Chitty 
made  it  appear  to  the  grond  jury,  I  was  ad* 
mitteil  an  evidence,  and  that  the  bill  was  thrown 
out  \  and  told  me.  1  should  be  vent  tor  the  next 
day  to  Guildhiilt,  to  swear  to  a  paper  that  wai 
drawn  up,  ami  prepared  according  to  form  in 
law,  and  said,  he  would  shew  it  me  at  Guild- 
hall. The  next  morniny  1  was  sent  for  te 
Guildhall,  where  GodiUrd  attended  before  the 
sitting  ahlernmn  eume,  and  called  me  mto  a 
closet  there,  and  took  out  a  pa|ier,  and  gave 
me  to  read,  and  said,  he  had  got  it  drawn  up^ 
and  that  it  ^^%  what  I  must  swiar  to,  in  order 
to  save  n\y  life ;  and  »aid,  1  must  stick  to  that 
paf^er,  or  my  lite  would  be  lost.  He  went  out 
of  the  room,  and  Mr.  Lfockcame  in,  and  said, 
Mr.  Murphy,  was  you  not  afraid  before  the 
bdl  was  thrown  out  f  I  replied^  I  was.  He 
then  s»«id,  You  are  a  free  man,  and  desired 
me  to  consider  what  I  was  about.  I  had  not 
lime  to  conieiae  with  Mr.  Lock,  to  know  how  I 
was  free,  before  Mr.  Goddunl  ctime  id,  and  in- 
terrupted us;  find  Lock  and  Goddard  tvent  oof, 
and  Gri-ddard  soon  returned,  4nd  de^iired  me  not 
to  s|ieiii(  lo  Mr,  Luck,  or  to  the  alderman,  but 
to  swear  to  that  paper ;  and  said,  he  would 
give  Mr.  Lock  half  a  tfuiuea  for  his  trouble.  I 
Massocm  afWr  brought  ii»ii»  Ihe  rmim  where 
alderman  Chitty  wu»,  and  some  other  person, 
and  was  awoin  to  the  aatd  writing,  which  1 
never  saw,  till  produced  in  the  said  closet,  and 
declared  »uch  writing  was  calculated  by  the 
said  Gmldurd.  1  was  ^ent  back.  Goildafd 
came  tu  me,  and  protluced  a  paper  ready 
drawn,  which  he  denired  me  to  c<ipy  in  my 
own  hand^  which  wa^  of  his  handwriting,  and 
directed  me  to  give  it  to  the  jud^e  or  recorder 
at  the  Old  Hadey>  the  next  day,  ^  Inch  he  said 
wouhl  rdear  up  alt  to  satisfaction.  I  copied  the 
same,  nud  the  day  afler  delivere<)  it  at  the  Old- 
Bailey  to  tbe  recorder,  and  was  sctil  b^cW  Xack 


731J 


26  GEOUGE  II. 


[732 


he  Compter.  Goddard  came  there  to  me,  aod 
atked  me  what  passed :  I  told  him  I  had  de- 
iirered  the  paper  as  he  directed.  That  God- 
dard  and  Mr.  Woodmao  had  a  pint  of  wine  to- 
gether, and  had  some  conr ersation  in  respect 
of  having  me  detained  in  the  Compter,  and  it 
was  agr^  a  friendly  action  to  be  laid,  which 
Goddard  assured  me  w|is  in  order  to  preserve 
my  life,  assuring  me,  if  I  went  abroad,  i  should 
certainly  be  knocked  on  the  head,  poisoned,  or 
a  robbery  sworn  against  me,  by  the  contrivance 
of  the  said  managers,  to  prevent  my  evidence. 
Goddard  put  me  on  the  master-side,  for  which 
he  paid  Woodman.  I  grew  very  uneasy  at 
not  being  at  my  liberty.  As  the  bill  was 
thrown  out,  and  I  admitted,  as  Goddard  told 
me,  a  king's  evidence,  being  in  a  bad  state  of 
health,  of  the  gaol -sickness,  of  which  many 
died,  I  requested  Goddard,  when  he  came 
agrain,  to  have  me  bailed  out,  and  sent  into  the 
country,  to  the  same  place  where  he  kept  the 
said  Mr.  Wilkinson  ;  at  which  Goddard  seemed 
uneasy,  and  declared  he  knew  of  no  place  in 
England  so  safe  to  preserve  my  life  as  the 
place  where  I  was,  and  repeated  as  aforesaid, 
that  if  1  went  abroad  before  I  was  examined  as 
a  witness,  I  should  certainly  lose  my  life  ;  and 
promised  to  get  me  on  the  debtor's  side,  with 
the  assistance  of  Mr.  Woodman,  provided  I 
could  get  a  friend  that  could  be  confided  in  to 
|ceep  things  secret,  who  would  bring  a  friendl  v 
action  against  me,  and  promised  he  would  al- 
low me  a  shilling  a  day,  and  pay  for  my  lodg- 
ing,  till  discharged  ;  at  whicn  1  was  more  re- 
conciled to  stay  than  I  was  before,  apprehend- 
ing what  Goddard  had  so  represented  was  in- 
tended ID  order  to  preserve  my  life.  1  then 
told  him,  that  I  believed  Timothy  Mahony, 
who  was  my  relation,  and  whom  Goddard 
knew,  and  was  in  the  secret,  would  be  the 
only  pro|>er  person  to  bring  such  action.  Then 
Goddard  took  a  direction  where  the  said  Ma- 
hony lived,  and  told  roe,  he  would  eo  to  him. 
The  said  Mahony  came  to  me  in  a  day  or  two 
af^eir,  and  told  roe,  Mr.  Goddard  had  been 
with  hiro,  and  addressed  himself  to  him,  by 
telling  hiro,  he  had  soroething  to  say  to  him  to 
save  my  life,  and  wanted  him  to  go  and  swear 
a  debt  against  me,  in  order  to  keep  me  on  an 
action  in  the  Compter:  and  that  he  assured 
him,  that  though  the  bill  was  thrown  out 
against  me,  yet  if  1  went  abroad,  I  should  be 
knocked  on  the  head,  poisoned,  or  a  robbery 
sworn  against  me,  and  that  roy  life  would  cer- 
tainly be  taken  away,  by  the  party  who  were 
against  me.  The  said  Mahony  told  me  he 
said  to  the  said  Goddard,  he  would  not  take 
such  an  oath  on  any  account :  and  that  God- 
dard asked  him,  Would  he  not  do  such  a  thing 
as  to  take  an  oath  to  save  my  life,  being  mv 
relation  ?  and  said,  he  told  the  said  Goddard, 
be  would  not  take  a  false  oath  for  the  world. 
And  that  Goddard,  at  length,  by  many  fair 
speeches,  importuned  him  to  go  to  takeout  such 
action,  and  had  directed  him  to  his  brother's 
bouse  in  8t.  Christopher's  church-yard,  for 
Uis.  OD  that  iCGOiiui,  aod  promised  to  leave 


Trial  ttf  Timt^hy  Murphy. 

directions  with  his  brother  to  give  the  i 
and  desired  Mahony,  wheii  he  got  the  money, 
to  come  to  me,  in  order  to  uke  out  such  adHm. 
The  said  Mahony  also  told  me,  he  bad  leoeivcd 
the  15f.  which  he  offered  to  give  me.  and  said 
he  would  not  take  out  any  sncb  actkiD,  as  I 
was  not  indebted  to  him  in  moy  aam  that 
amounted  to  an  arrest :  then  I  preMed  and  is* 
treated  the  said  Mahony  to  bring  aiich  actioB, 
as  it  was  intended  to  save  m^  life,  and  tiU 
him  I  would  give  hiro  a  promissory  note  ftr 
as  much  as  he  was  to  take  the  action  fof«  iii 
he  would  be  safe  in  so  doing,  which  helkca 
complied  with  ;  and  I  drew  a  note  for  5  sr  66 
which  I  antedated,  payable  to  him  or  eider; 
and  it  being  then  too  late  to  Uke  oat  aqr  ac- 
tion, in  a  night  or  two  after  Mahony  cun 
again  to  me,  and  1  directed  him  to  go  lilhs 
office  and  lodge  such  action,  which  be  diA; 
and  he  afterwards  gave  hiro  15s.-^Tbat  ths 
4fud  Mr.  Friend,  at  different  times,  came  tOBC, 
aod  assured  me  he  would  attend  at  the  tiiil, 
and  swear  that  Noads  wrote  the  said  naias 
Dinish  Collins ;  and  he  also  assured  me,  thst 
if  I  went  abroad  before  the  trial  was  ever,  1 
should  be  murdered  or  poisoned,  or  have  a  rsb- 
bery  sworn  against  me,  by  the  contnvanee  of 
the  said  managers.  That  Goddard  fire^oeatly 
came  to  me,  and  kept  me  full  of  spirits,  asnr- 
ing  me  I  should  be  an  evidence  against  Noeif 
and  Carter;  and  if  Thomas  Williams,  wbs 
was  the  supposed  executor  of  the  said  WilkiB- 
son,  and  went  by  the  name  of  John  DsHit 
should  not  be  produced  on  my  trial,  the  wi 
Mr.  Friend  was  to  swear  ialsiBly  against  tbt 
said  Noads.  I  do  declare,  that  the  said  Mr, 
Noads  and  Robert  Carter  were  ionoeent  sf 
what  I  swore  against  them,  relating  to  say 
knowledge  they  had  in  any  forgery  ;  and  that 
I,  and  the  said  John  Williams,  olheririiB 
Daunt,  were  the  only  persons  concerned  b 
forging  and  publishing  the  said  will  of  the 
said  John  Wilkinson.  And  1  do  also  dedait, 
that  I  never  had  any  intention  whatsoever  ts 
charge  the  said  Mr.  Noads,  or  the  said  Caitari 
with  the  said  forgery,  until  1  was  spirited  sai 
prompted  up  in  the  manner  aforssaid,  by  the 
art,  management,  and  contrivance  of  tlie  wA 
Goddard  and  Flanigan.  And  I  do  abo  ss- 
lemnly  declare,  that  the  said  James  Goddsrl 
has  often,  since  my  conviction,  sent  several 
messages  to  me,  to  desire  I  would  not  revsil 
any  of  the  secret  transactions  that  passed  be- 
tween us  as  aforesaid,  and  sent,  in  his  ovi 
hand-writing,  a  false  paper  to  be  published, 
which  he  requested  I  would  sign,  but  refuisi 
so  to  do.  1  had  several  letters  and  papers  ^ 
consequence,  which,  being  advised  and  rS" 
quested,  1  burnt,  lest  I  should  be  searched 
which  would  have  given  a  y&ey  full  aod  sstii- 
factory  discovery  in  this  affair.  That  weid 
was  sent  to  roe  last  night  by  Gtkldard,  that  if 
I  kept  it  secret,  in  case  my  life  could  not  to' 
saveo,  I  should  I  * 
would  send  backt 

fessioo,  which 

writing,  as  .also  another  writing  that  wetU  to 


t,  in  case  my  life  could  not  M' 

d  be  decently  buried,  provided  1 

ick  to  him  signed  the  fabecse* 

he  sent  me  in  his  own  toV' 


1733} 


Pfooeedings  against  Dn  Cameron* 


A.  a  1755^. 


[731 


tent  tott.  Mr.  Vtconi,  chnftlaiti  to  the  SpantBh 
uAbtMaiSur,  bdoj^  my  father,  i]m  day  told 
ni^,  thjit  he  (liiveit  vviih  the  same  James  GoiU 
dmrA  ytt%tJerthy,  aoil  thai  he  hail  desired  him  to 
IvriOf^baelc  lo  him  fhjtn  roe  the  said  confession, 
nnfl  n,>,t«w,.r.|f  lo  send  by  him  another  writing- 
Ift  t'  v  nre,  %?hich  the  said  Mr»  Vicors 

loliJ  u.:  U-  lutormed  th*^  said  Mr.  Goddard  he 
wimM  not  be  any  wise  concerned  therein ;  bat 
be  Mid  b«  would  charg^e  me  to  mnke  an  open 
iSWifeiiioii  of  llie  truth  before  Hte  parted. 
Aad  I  4«clar9  the  Knid  Mr.  Vicors  advisee!  me 


•o  to  do  ;  and,  as  a  dytnf^  Tn&n,  bein^  detiroiia 
ta  discharge  my  conscience,  have  made  this 
declaration,  ithicU  is  nothing  but  the  truth. 
Given  under  mv  hand,  froui  my  cell  in  New- 
gttte»  the  87lh  oi  January,  1753. 

"  Tim.  MtnipiiT.** 
Present, 
*•  William  Hawkins, 

"  ItAAC  D0LST«IN, 

He  was  executed  at  Tyburn,  Monday,  Peb. 
IS,  1763. 


J34,  Proceedings  against  Dr,  Archibald  Cameron,  at  the  King's 
Bench,  May  17th,  on  the  Bill  of  Attainder  passed  against 
him  19  Geo.  IL  for  being  in  the  Rebellion  1745 :  26  George 
[L  A.  D.  1753, 


i Dr.  Cameron*  was  younjfer  brother  to 
UmM  Cameron  of  Loch i el,  and  son  of  Evan 
Cittffim,  who  was  in  the  rebetlion  in  1715, 
and  WM  one  of  the  seven  that  came  from 
Fruuce  with  the  youngs  Pretender,  and  wlio, 
Uinr  landinit  m  July  1745,  went  to  the 
*  M  Donald  Macdonald  of  Renloch  5Toi- 
,  and  fmui  thence  orders  were  iasued  for 
*  '>  join  the  younij  Pretender :  on 
I  Cameron,  after  much  intreaty, 
.  :.im,  and  LXprosscd  his  surpri7.e  to 
^  weekly  alien* fed,  and  refused  to 
.  clan,  till  ilie  yoniirj  Preleniler  could 
ilucv  in  wntini^  the  French  king^'s  reAo1u> 
lo  a«si*t  hini  with  a  proper  number  of 
,  and  bein|^  assured  that  he  would, 
loned  his  cbn,  and  set  U|}  his  standird 
thU  motto.  Tandem  Triumphans,  At 
ftbTriiimptrant;  though,  at  tJie  same  time, 
f  Pretender,  that  his  scheme 
it,  that  he  feared  no  sucoetis 
iiii|»{irn  irom  it,  and  that  the  isiiiie  of  it 

I  he  the  ruin  of  his  friends  ;  as  in  the  end 

„.-.,] 

If  ron  was  in  himself  of  a  qniet  and 

f"-*"  •  and,  had  he  not  been  brother 

^ry  pmbjible  he  would  never 

t  rebellion. 

jrr  ^nfe  birn  the  best  education 

Ui  Mfftird,  designings  him  for  the 

i^rnfe^sion  he  did  not  like,  and  ap- 

<i  to  the  study  of  physic  and  ana- 

»y,  iitid  ptit  him9elf  under  the  direction  of 

Alexander   ftlonro,  of  the  university    of 

kbur^ph,  a  gt'iitleman  nf  estjiblisihed  reputa^ 

i  and  when  he  had  acquired  a  competent 

m  aoatrpmy,  he  applied  himself  to  physic, 

WAi  itiatructeil  ther^^in  by  Dr.  Sinclair,  a 

' jfi  very  eminent  fo  the  faculty;  after 

I  ^^Mah  he  travelled  abroad,  and  studied  io  those 


*  From  the  UislDnc^il  Account  of  bis  Life^ 
INhislieil  at  tbo  time  of  his  death.     Former 

I       i 


branches  nt  Parts ;  and  after  staying  some 
time  there,  returned  to  Lochabcr^  and  married 
a  young  lady  of  the  name  of  Campbell,  bj 
whom  he  left  seven  children. 

'*  This  Dr,  Cameron  might  have  made  ft 
consiilcriilile  figure  in  his  profession ,  had  he 
settled  at  London  or  Edinburgh  ;  but  chose  hia 
residence  near  his  l>ruiher*s,  among  the  tiigh> 
lands,  where  he  took  ^eat  painn  to  cultivate 
Ihe  minds  and  manners  of  the  Highlanders, 
who  by  his  means  were  greiilly  imj»roved« 
He  was  a  man  of  no  ambilionf  hut  of  an  easy« 
quiet  temper.  His  chief  husiuess  in  the  relwl 
army  was  to  attend  his  brother,  and  to  assist 
him  with  his  skiU,  if  any  accident  should  befal 
him  in  battle;  and  he  did  attend  not  only  se- 
veral of  the  wounded  rebels,  but  likevfise  se* 
veral  of  the  kincr's  troops  that  fdl  wounded  into 
the  hands  of  tnc  rebels.  But  the  battle  of 
Culloden  put  a  final  end  to  the  rebellion,  and 
aH  the  Pretender^s  hopes,  and  mined  vast  imtn- 
hers  of  families,  that  put  their  trust  in  French 
Hiilh  :  Lochiel  was  wounded  in  the  ancle  in  the 
battle,  and  carried  off  by  his  clan»  and  attended 
daily  by  the  doctor  his  brother,  wandering 
about  for  some  time  after  the  battle  ;  till  at  last 
the  young  Pretender,  Lochiel,  his  brother  the 
doctor,  and  some  other  of  his  followers,  em- 
barked on  board  a  vessel  in  the  harbour  of  Flotft 
in  the  isle  of  8<iuth-Uist,  and  landed  at  Bou- 
loinie  in  France  about  the  middle  of  September 
1746,  to  their  great  joy,  having  sulfered  iunii* 
nierahle  hard  ships. 

"  liochiel  Imd  immediately  a  regiment  gireo 
him  by  the  king  in  the  French  army,  and  tho 
doctor  was  made  iihysician  to  it ;  but  on  the 
death  of  his  brother,  in  Seplembtr  1T48,  he^ 
was  appointed  physician  to  lord  Ot^ilfie's  regi- 
ment, then  quartered  at  Lisle  in  Flanders* 

"About   the   year    1749,  a  collection    wa»; 
made  amon^  the  Jacobites  for  their  friendly 
abroad  ;  and,  it  was  said,  Dr.  Cameron  cama  , 
orer,  and  received  a  pari  of  it :  after  thii  ano. 
ther  collection  was  rotde  foe  sIokh^  xusNx^^v^ 


735] 


26  GEORGE  II. 


Proceedings  againd  Dr.  Caimerwh 


people ;  and  the  doctor  represented,  that  his 
pay  would  not  keeji  him  and  his  family  :  but, 
after  many  soHcitation8,receiving'  no  satisfactory 
answer,  he  came  over,  himself  to  Scotland,  and 
iras  there  disco? cred,  and  was  seized  by  a  party 
of  lord  Georg^e  Beauclerk's  regiment,  who 
were  sent  from  the  fort  of  Inversnaid  in  search 
of  him,  and  brouifht  prisoner  to  Edinburgh, 
March  the  86th,  1753;  and  being  brooght  be- 
fore the  lord  justice  clerk,  he  told  him,  You 
are  the  only  man  in  your  circumstances,  that 
ever  I  had  occasion  to  speak  to  since  I  hare 
been  engaged  in  business,  whose  answers  to 
Die  could  be  of  no  iirejodice  to  him  ;  because 
you  are  to  be  carried  to  London,  and  there  are 
witnesses  ready  to  appear  ag^ainst  you  at  the 
Court  of  King^s-bencb,  to  prove  that  you  are 
the  identical  Dr.  Cameron,  mentioned  in  the 
bill  of  attainder:  this  will  condemn  you,  and 
Tou  are  to  hare  no  other  trial.— This  struck 
Lim  ;  and,  after  some  pause,  he  replied,  That 
he  did  not  come  over  with  any  political  de- 
sign, but  only  to  transact  some  affairs  relating 
to  LfOchiel's  estate. 

*'  Upon  bis  arrival  at  London,  he  was  exa^ 
mined  by  the  council  at  the  Cockpit,  and  com- 
mitted prisoner  to  the  Tower." 

Doctor  Cameron's  Case. 

[FmUt'b  Crown  Law^  109.] 

^  Pleas  before  our  lord  the  king  at  Westmin- 
ster of  Easter  Term,  in  the  26th  year  of  the 
reign,  dec. 

"  Amongst  the  Pleas  of  the  King.     RoH. 

'<  England.  Our  present  sovereign  lord  the 
king  hath  transmitted  to  his  beloved  and  faith- 
ful sir  William  Lee,  and  others  his  fellows  jus- 
tices, &c.'*  [as  in  the  case  of  Mr.  Murray,  of 
Broughton,  mutatis  mutandis.  See  ii  in  the 
Trial  of  lord  Lovat,  vol.  18,  p.GST.] 

Dr.  Archibald  Cameron,  who  was  one  of  the 
persons  attainted  by  the  act  of  the  lOtU  of  the 
king,  was,  on  the  17th  of  May  1753,  brou«;ht 
to  the  bar  by  Habeas  Corpus  directed  to  the 
lieutenant  of  the  Tower  ;  and  being  arraigned 
by  the  secondary  on  the  crown  side,  the  writ  of 
Mittimus,  i^itli  the  Certiorari,  and  return,  were 
read  to  him  by  the  secondary.  The  attorney- 
general  then  prayed  that  execution  might  be 
awarded  ;  and  the  secondary  demanded  of  the 
prisoner,  what  he  had  to  say  why  execution 
should  not  be  done  upon  him  ? 

The  prisoner,  who,  during  the  whole  time 
he  stood  at  the  bar,  behaved  with  &:rcat  pro- 
priety, not  insensible  of  his  condition,  nor 
greatly  disconcerted,  said.  That  he  was  led  to 
take  a  part  in  the  rciieilion  against  his  own 
judgment  and  inclination,  by  some  upon  whom 
his  all  depended  :  that  he  still  flattered  himself 
be  should  appear  not  unworthy  of  his  majesty's 
mercy ;  and  mentioned  some  facts  which  he 
hoped  might  intitle  him  to  it.  He  said,  he  did 
Bot  offer  these  things  aa  a  defence  he  relied  on 
ID  poiot  of  Uw,  but  as  facta  which  he  hoped 


[736 

ftr 

itircly 


might  have  some  weight  in  ftooliicr  phet, 
he  was  determined  to  throw  himaaf  emi 
on  his  majesty's  mercy. 

Whereupon  proclamatioD  being  made  ftr 
silence,  the  chief  justice  after  a  aliort  cxbarti- 
tion  to  the  prisoner,  pronoonced  the  uaiial  jad|w 
ment  in  case  of  high  treason,  as  an  award  tf 
execution  grounded  on  the  act  of  attainder. 
And  a  rule  was  made  for  bis  ezeciMKNi  on  iht 
7(h  of  June,  and  writs  for  that  purpoao  to  Iks 
lieutenant  of  the  Tower  and  the  sheriff  of  Mid- 
dlesex were  ordered,  as  in  the  case  of  Mr.  8il> 
cliffp,  vol.  18,  p.  4d0. 

The  Court,  in  pronouncing  judgnaent  in  iii 
case,  followed  the  precedents  in  the  cmm  if 
Humphrey  Stafford,  (1  H.  7,  SS.  95)  vdif 
Barkstead,  Okey ,  and  Corbet,  (1  ISd.  79.  lUr. 
61,)  vol.  5,  p.  1301.  The  cases  of  HsIm 
and  sir  Thomas  Armstrong,  in  Charles  thstn 
time,  Tol.  10,  p.  105  ;  and  of  lord  GriffiB,*ii 
the  late  queen's  time,  were  mentioned  at  ac»- 
ference  among  the  judges  of  ^he  King's  kadk 
on  this  occasion  ;  but  Httle  regard  was  paid  H 
them. 

For  in  Holloway's,  which  was  tbs  kuS^ 
case,  the  opinion  of  the  Court  seemetk  toksve 
been  given  hastily,  and  against  the  sense  sf  ibe 
bar.  And  in  lord  Griffin's  case,  chief  joMioe 
Holt,  who  was  at  that  time  absent^  wu  of  a 
contrary  opinion,  and,  as  I  have  heard,  eis* 
stantly  |iersisted  in  it ;  and  I  do  not  see  bow  u 
attainder  by  outlawry  at  common  law,  ii,io 
this  respect,  distinguishable  from  the  case  if  as 
attainder  by  act  of  parliament,  which,  is  tbt 
present  case,  is  but  in  nature  of  a  parlianMBtvy 
outlawry. 

*  The  Case  of  Lord  Griffin,  from  a  WL 
Report  of  the  late  Lord  Chief  Baron  Dti 
Pasch.  7  Annse  1703. 
Lord  Griffin,  who  had  been  outlawed  ftr 
high-treason,  was  this  term  brought  to  tbe 
King's-bench ;  and  the  whole  record  of  the 
indictment  and  outlawry  was  read  to  him,  nd 
he  was  demanded,  if  be  had  aught  to  say  irliy 
execution  should  not  be  done ;  and  he  ast 
making  any  material  objection,  the  Court  or- 
dered execution  to  be  done.  But  note,  lir 
James  Montagu,  solicitor  general,  (there  bcini; 
then  no  attorney- general)  prayed  that  jiid^' 
ment  ns  in  cise  of  high-treason  might  be  prv 
nonnccd  ;  or  that  at  least  it  might  be  mtat^ 
on  the  roll  in  the  award  of  execution :  andnii 
this  uus  the  opinion  of  Holt,  chief  justice,  tbfO 
at  Bath  propter  J^gritudincm.  But  Poiretf 
and  the  Court  held,  that  the  awani  of  executioa 
should  be  general ;  for  the  judgment  in  ik* 
outlawry  implicth  all  the  particulars,  sad  so 
second  judgment  ought  to  be  given.  Aods^ 
they  said  it  was  helil  in  the  cases  of  Hollow»/ 
and  sir  Thomas  Armstrong.  Met  per  ut^ 
dubitatur,  quia  le  Livre  del  1  U.  7,fc.  •*» 
est  contra ;  and  it  w  as  said  that  in  the  «•• 
of  Barkstoad,  Okey,  and  Corbet,  the  Coort 
followed  the  precedent  of  that  book.  Ai  *• 
lord  Griflin.  sec  a  Note  to  lonl  Lsnt^cH^  ^ 
▼ol.  18,  p.  854. 


frsr\ 


en  a  Bill  of  Attainder^ 


A,  D,  1755* 


[738 


OfbPt, 


is  euei  within  the  set  of  iH«  liHll 
Df  thm  king,  c.  34*  wtiere  tlte  [vri»ceeding  is 
D  t  ii^nK*^<'n  ^^  (^^  i^t^  ^hiit  the  prif^imer 
ool  turreniitr  to  juttice  pursuant  to  thtii 
tlic  t^aastatil  course  haih  been  to  award 
IB*  withuai  pronouncing  scnteuoe  of 
!  in  CAMS  01  felony  z  but  that  prac- 
ta  grouodcd  nci  ihe  words  of  the  act ; 
^  Aad  U  aliall  be  lawful  for  the  Court  to 
tsiecirtioQ  a^'aJDM  auch  off^iulerf  in  fuch 
if  be  hftrl  beeneonficted  and  aitaint- 
ltd  court." 

in  the  cane  of  Barkslead^  &o. 
,  and  the  Jgdijrefi  bad  copie:>»  of  it, 
Mter  term,  in  the  14th  of  kin^  Charlet 
•KOOImI  ;  il  Aifrefth,  mutatis  mutandit^  uith 
»nl  til  Mr,   Murray '»   caae»   [?oJ.    18, 
]  and  after  6ettin|j(f brill  the  act  ufparttt- 
which  the  prisooers  atood  attainted],  it 
il,   '  El   tuodo  icilioel  die  Mercurii 
it  i^uiiidfit*  Pusch'  ijto  eodem  Ter- 
lO  Hv}(e  apud  West*  f  eniunt 
Barkntead,  Johannes Okey, 
,  per  Johannein  Hobinfion  Mil. 
luni  teoeni*  Turns  London^  vfr- 
vis  Dotitint  llegfis  de  Habeas  Corpus 
et  tode  dtrc-ct^  ad  Barrarti  hie  duct^  in  (^ropriis 
Kioi^  kiii4  (in  ciijus  Cui*ind'  pnpantifa  ex 
prsihct'  comnii^st  fucruol)  qtii  com- 
ur  eidem    Locum  tenriil"  suj>er  quo 
est  per  Cur*  de  eisden.  Johanoe  Bark- 
Jobanne  Okey,  et  Milone  Corbet  si 
|iro  ae  haheaot,  vel  dicere  sciaot,  quare 
btc  ad    Bxecuiionem  de  eis  et  eorum 
proctdt  nou  delieat^  Separatjmdicunt 
nun  sunt  eiidetn  TerifoiitE,  nee  eoruro 
emdecn  Persona,  quie  de  aha  Prodi- 
lici*  in  Aclii    Parhumeriti   prtedict^ 
Convict'  et  Auioci*  exisiuni;    et 
H'  ffuiil  rcriftfiu-e   prout  Cur*,   6cc. 

H.tmt  judicium  fkc.  et  GaH'ridiis  PuU 
iL  H  Brtf,  Atturnat*  Domini  Rpj^is 
^ScDffalw  QUI  pra  eodein  Dumino  tle^e  m  hac 
^  Piili Mqniiur  prc^ens  hie  in  Cor^  |iro  eodRin 
^D«Miiir»o  i<*'>"  •'«- M»  quo'l  pp«dict*  Johaniiesi 
*Birkiti-  Hen  tlkvy,  eX  Mito  Corhtft. 

,  sunt  ewd**!!!    Personae,   et 

irutn  est  eadeoa  Persona  in  pi  ledict* 
ianieiiti  noriiinai*  qoi  de  aitu  Prodi- 
liel'   Convict*  cl   Attinei*   rxtfilujit, 
Uomino  Hv^ce  petit  quod  inquiratur 
iCDi  el  predict'  Johanneis  B^irkktead^ 
Okey.   tt   Mtio  Corbet,  similiier, 
hate    ventat    inde     Jnrata 
im  I »  '^e  ibidem,  6cc.     Et  Jura 

y  nif  Middle- 

ict\enlunt, 
,»,..,.*  .<+  j.i.t.w,i,^i,  .Jtcend*  rieci* 
#1   jural*    diciMit  super    aacraiiientiinj 
f^iifMl    iirj'dict*  Johannes   Baikiilead, 
,tir  ^lilo  Cori»et,  sunt  ecdem 

»*:!  eoruni  eat  eadern   Per- 
ibct'  Acta   f^atliumenti  nnminat* 
i4  Proditioue  privdict*  in  Aclu  Par- 
k'V    Cimvicl*   el    Auinrl*   ex- 
it prsdict'  Galfridui  P«liner  Mil. 
Aitoroat'  Dottitii  liegia  nunc  Ue- 
UXIJL 


*  nevftr  pro  diet*  Domino  Ueee  superius  aU 

*  le^f  it,  Sec.  et  ulterins  qitiestl*  e*l  de  pr«- 

*  fat^    Johanne     Barkslead,    Johanue    Okey, 

*  et   Mihine  Corbet,   separatim,  ai  quid  ulte- 

*  riiia  pro  se  habeant  vel  dicere  veliat  necne^ 
!  qui  Nihil  dicunt  Acc.  Ideo  coosideraf  est 
^  <uukI  predict*  Johannes  Barkslead,  Jolianuet 

*  Okey,  et  Milo  Corbet,  ducanlur,  et  quiUbet 

*  eorum  dueatiur  usque    Turriin   London,    et 

*  deitide  per  tDCtlinm  Cititat'  London  directs 
'  usque  ad   Furcaa  de  Tyburn   trahanlurf  et 

*  quilibet  eoruui  trahalur,  et  super  Ftircas  illtis 

*  ibidem  suspendautur  et  quibbct  eorum   bus* 

*  pendatur,  et  Vlventes  f«d  Tcnam  prosternan- 

*  lur,  et  quihbet  eorum  prosternalur,  et  In- 
<  teriora  sua  extra  Venires  suos  et  eorum  cujua- 

*  libet  rapiaDtur,ipsisque  Vireutibus  comburan- 

*  tur,  et  CapiU  eorum  el  eorum  cujushbctaiu- 

*  puteoter,  et  Corpora  eorum  et  eorum  cuiusU- 
'  bet  in  quatuor  Partes  dindaotur,  et  quod  Ca- 
'  pita  et  Quarteria  ilia  ponanttir  ubi  Dommiic 

*  Ilex  ea  assignare  Tolaerit,  Stc* 

**  On  Dr.  Cameron's  receiting"  stntence,  ha 
made  a  sj^entael  bow,  and  ooly  desired  he  mi^^ht 
have  leave  to  settd  for  bis  wi4,  who,  with  seren 
children,  entirely  dfpf^ndent  on  him  for  support, 
were  at  Lisle  in  Flanders ;  i^  bich  wts^  {^ranled* 
Hn  said,  tliat  in  1746  he  came  frum  Pmnce  to 
surrender  himself,  agreeable  lo  Ihe  proclamn- 
tion,  but  was  prevented  by  an  accident  happen- 
mg  in  his  family.  He  behaved  wiib  yreat  re^ 
solution  and  decency  before  the  Court.* 

*"*  During  the  interval  between  the  sentenc# 
sad  bis  execution,  hi8  wile  tised  all  (ioii»ib1a 
fiteans  lo  obtain  a  pardon^  by  delivering  a  pett* 
tion  to  bis  majesty,  another  to  her  royal  hig^h~> 
ness  the  princess  of  Wales,  and  to  sevt^ral  of 
tho  noliilily,  but  without  eflTect :  for,  on  Tburt- 
diy,  June  Tih,  about  ten  o'clock  in  Ihe  fore- 
noon, be  was  bitMi^ht  out  of  ibe  Tower,  trnsrd* 
ed  by  a  party  of  the  bome-ffuurd^,  anil  deJt* 
vered  lo  the  slienffi  ol  L'tndon  and  Middlrsejf. 
As  MKin  as  he  w-m  out  at  the  To«er-|tfa(e,  ho 
was  put  into  the  hurdle,  to  wlii«;b  he  v^as  fas- 
tened by  the  ex**cui  inner.  In  Ibis  manner  ha 
wan  drawn  llirousrb  the  city,  altendt-d  by  sir 
lliehard  iily  no,  one  of  ibe  sheriffs^  and  inider 
ihe  care  of  the  sherilTs  officers  and  constable*, 

10  Ihe  pliice  of  execution.  Sir  Charles  A*(|^dlt 
ih€  other  sheriff,  left  ihe  prisoner  at  ihe  Tower, 

•*  The  doctor  bfinjj  arrived  at  the  place  of 
execution,  and  helped  into  the  carl,  de*ireil  to 
speak  to  the  ^hrriff,  who  came  to  him:  iba 
doctor  intiealed  the  favour  of  him,  thai  he 
would  tfive  orden  to  let  his  Iwidy  han^  till  he 
was  quite  dnid,   before  the  executioner  b#->;an 

1 1  is  lurther  tjp*^nition,  and  ihe  shiTiflT  pMrni^eil 
to  obltjre  biin  in  his  request ;  and  sceorrlio^ly 
the  body  hnn^  three  quarters  of  an  hour  liebirc 
cut  down,  when  oo  remiin»*of  life  were  in  him. 

•*  While  in  the  cJirt,  a  ^eollcman  in  a  lay 
habit  came  and  prayed  with  him,  and  then  left 
him  lo  his  own  private  devotions  ;  by  which  it 
WB3  iinagiued  tb«  doctor  ifas  a  Roinao  Cftlbo- 

^  From  Uitt,  Aocou&t  af  hiiLife,  p.  37* 
9& 


739] 


S6  GEORGE  IL 


Proeeedingi  agairut  Dr.  CameroHf 


[740 


lie,  and  the  genileroaa  who  prayed  with  him  a 

firiest  He  died  with  great  decency  and  reao- 
ution,  without  any  Tisible  alteration  in  his 
countenance  or  beha? ioor,  but  perfectly  resiffn- 
cd  to  the  will  of  Heaven.  He  left  no  (Miper  be- 
hind him.  After  his  body  was  taken  nom  the 
gallowSy  the  executioner  cat  off  his  head,  and 
took  out  his  bowels,  but  dkl  not  quarter  the 
body.  His  body  and  bead  were  put  into  a 
comn,  with  this  inscriptiou  on  the  lid  of  it, 

*  Dr.  Archibald  Cameron  suffered  the  7th  of 

•  June,  1763,  aged  46.' " 


The  following  Article  was  published  at  the 
lime: 

Copt  of  what  Dr.  Cameron  intended  to  have 
delivered  to  the  Sheriff  of  Middlesex  at 
the  place  of  £xecution,  but  which  he  left 
in  the  Hands  of  his  Wife  for  that  End. 
With  a  Letter  from  Dr.  Cameron,  when 
under  Sentence  of  Death,  to  his  Son  in' 
France.  To  which  is  added,  an  authentic 
Account  of  his  Behaviour  at  the  place  of 
Exertion.  London :  Printed  in  the  year 
1753. 

On  the  Jint  Slip  of  Paper,  dated  Tower,  6th 
June,  1753. 

**  Being  denied  the  use  of  pen,  ink,  and  pa- 
lmer (except  in  the  presence  of  one  or  more  offi- 
cers, who  always  took  away  the  paper  from 
me,  whenever  I  began  to  write  niy  complaints) 
and  not  even  allowed  the  use  or  a  knife  with 
which  I  might  cut  a  poor  blunted  pencil  that 
bad  escaped  the  diligence  of  my  searchers,  1 
liave,  notwithstanding,  as  I  could  find  oppor- 
tunity, attempted  to  set  down  on  some  slips  of 
paper,  in  as  legible  characters  as  I  was  able, 
what  1  would  have  my  country  satisfied  of  in 
regard  to  myself,  and  the  cause  in  which  I  am 
now  going  to  lay  down  my  life. 

*<  As  to  my  religion,  I  thank  God  I  die  a 
member  (though  unworthy)  of  that  church,  in 
^hose  communion  I  have  always  lived,  the 
Episcopal  Church  of  Scotland  as  by  law  esta- 
blished before  the  most  unnatural  Rebellion 
begun  in  1688,  which,  for  the  sins  of  these 
nations,  hath  continued  to  this  day:  and  1 
firmly  trust  to  find,  at  the  most  awful  and  im- 
partial tribunal  of  the  Almighty  King  of  Kings, 
llirough  the  merits  of  my  blessed  Lord  and  Ssa- 
▼iour  Jesus  Christ,  that  mercy  (though  unde- 
served) to  my  immortal  part,  which  is  here  de- 
nied to  my  earthly,  by  an  Usurper  and  bis 
Faction,  though  it  be  well  known  I  have  been 
the  instrument  of  preventing  the  ruin  and  de- 
struction of  many  of  my  poor  deluded  country- 
men who  were  io  their  service,  as  I  shall  make 
appear  before  I  have  done,  if  opportunities  of 
wnting  fail  me  not." 

On  tht  iccond  Slip  of  Paper. 

(«  In  order  to  convince  the  worM  of  the  up- 
rightness of  my  intentions  while  in  the  pnaoe 
«nVrica's  army,  as  weU  ai  to  ihew  the  cruelty. 


injostiee  and  in^titude  of  my  mw^lerers,  I 
think  it  proper,  in  the  first  place,  to  take  no« 
tice,  how  much  better  usage  I  mi^ht  have  ex- 
pected of  my  country,  ifhumamty  and  good 
nature  were  now  looked  upon  with  the  sans 
eyes  as  in  the  times  of  our  brave  and  generosi 
ancestors :  but  I  am  sorry  to  obsenre,  that  oar 
present  men  in  power  are  so  far  sunk-beloir 
the  noble  spirit  of  the  ancient  Britoiis«  as  hardly 
at  this  day  to  be  distinguished  from  the  very 
basest  of  mankind,  mr  ooold  the  prcseat 
possessor  of  the  throne  of  our  injured  sorerciga^ 
if  he  looked  on  himself  as  father  and  natwil 

Krince  of  this  country,  suffer  the  life  of  one  ti 
e  taken  away,  who  had  saved  the  lives  ui 
effects  of  more  than  300  persons  io  SootlisA 
who  were  firmly  attached  to  him  and  his  psrlf : 
but,  it  seems,  it  is  now  made  a  crime  to  an 
the  lives  of  Scotsmen. 

*'  As  neither  the  time,  nor  tlie  poor  011^ 
rials  I  have  for  writing,  will  allow  me  ts  de- 
scend to  a  particular  enumeration  of  aH  the 
services  I  have  done  to  the  friends  of  the 
Usurper,  I  shall  therefore  only  mention  a  ftw 
of  the  most  knowui  and  such  as  can  be  well  at- 
tested. 

*'  In  July  174.5,  soon  after  the  settiurspsf 
the  royal  standard,  and  belbre  our  smaflansy 
had  reached  Corryariog,it  was  moved  by  SOM 
of  the  chiefs  to  apply  to  the  Prince  for  a  stmg 
detachment  of  clans  to  distress  Campbell  of  la* 
vera's  bouse  and  tenants  in  that  neignhooriioo^' 
which  my  brother  Lochiel  and  I  sosuocearfsHy 
opposed,  by  representing  to  our  generoaf 
leraer  {who  was  always  an  enemy  to  oppra* 
sion)  tnat  such  proceedings  could  be  mHny 
usetul  to  his  undertaking,  that  the  motion  vtf 
entu-ely  laid  aside,  to  the  no  small  mortificaliia 
of  the  proposers. 

<*  My  brother  and  1  likeways  prevented  sodi 
another  design  against  Breadalbine,  to  tlit 
great  satisfaction  of  our  dear  prince ;  and,  on 
our  return  from  England  to  Glasgow — 

**  Arciiidald  Cameron."* 

On  a  third  Slip  of  Paper. 

<<  My  brother  and  I  did  service  to  the  towi 
of  Glasgow,  of  which  the  principal  gentry  ia 
the  neighbourhood  were  then,  and  are  to  tbif 
day,  very  sensible,  if  tbey  durst  own  the 
truth:  but  that  might  be  construetl  as  ilin^ 
fectlon  to  a  government  founded  on,  and  sop' 
ported  by,  lies  end  falshood. 

<«  On  our  march  to  Stirling,  I  myself  (though 
I  am  like  to  meet  with  a  Hanoverian  reward 
for  it)  hindered  the  whole  town  of  Kirkintullocb 
from  being  destroyed,  and  its  inhabitants  p«t 
to  the  sword,  by  my  brother's  men,  who  were 
justly  incensed  against  it  for  the  iahuoiU 
murder  of  two  of  Jady  Lochiel's  servants,  hot 
two  months  before.     H ere  was  a  sufficient  pi«« 

"  *  Mr.  Cameron  (as  was  his  custom  whtf 
interrupted)  subscribed  his  name  (as  be  told  Ui 
wife)  to  make  what  he  had  written  the  mf 
authentic,  in  case  he  should  not  have  an  S|lfi^ 
tunity  of  writing  any  more.'*  ■ 


f>n  a  BUi  of  Attainder, 


A.  D.  175S- 


[748 


^teoce  for  f^ngeance,  had  I  been  inclined  to 
I  cruelty  :  but,  1  tUank  God,  notlun^  was  ever 
farther  from  my  nature,  ihnti^fh  1  may  ha?e 
I  been  otherways  represeDte<l.  Mr*  Cam^ipebell 
J  of  ShawfUeld  likeways  owes  me  some  sraall 
i  fafours  done  to  himself  and  family,  which  at 
I  leaal  deserred  some  return  ici  my  behalf. 

And  lady  Duncan  Camplferi  of  Lochnell, 
>  now  in  London,  caoi  if  she  pleaiet,  fouch  for 
L  tiie  truth  of  some  of  the  above  lacts. 

•*  AiicaiBALB  Camkron.'* 

In  a  fourth  Slip  of  Paper, — June  6,  1753. 

**  1  tlmnk  kind  Proricleoce  I  had  Ihe  hap  pi - 

to-be  early  educated  in  the  principles  of 

Christian  loyalty,  which,  as   I   grew  m  years, 

iuipired  me  wiili  an  utter  abhorrence  of  rebel- 

t  lion  and  usurpation,  though  ever  so  succesafut, 

I  and  when  1  arrived  at  man'a  estate^  1  had  the 

I  testimony  both  of  religion  and  reaion  to  con* 
firm  me  in  the  truth  of  my  first  principles. 
^Tbus  my  attachment  to  the  royal  family  is 
I  more  the  rasult  of  examination  and  conviction, 
I  than  of  prepossessiun  and  prejudice ;  and  ai  1 
;ain  now,  so  was  I  then,  ready  to  seal  my  by* 
imtlj  with  my  blood.  As  soou  therefore  as  the 
royal  youth  had  set  up  the  king  bis  father's 
•tandard}  I  immediately,  as  in  duty  bouud,  re- 
paired to  it ;  and  as  I  had  the  honour,  from  timt 
'time,  to  he  almost  constantly  about  his  person 
till  November  1741),  (excepting  the  short  time 
after  the  affair  of  Cullodeo,  that  his  royal 
liigbnesg  was  in  the  Westtrn  Isles)  I  became 
more  and  more  captivated  with  his  amiable  and 
iphocely  viitues^  which  are  indeed  in  every 
liuilaoce  so  eminently  great,  as  I  want  vtotob 
lio  describe. 

,  "I  can  farther  affirnci,  (and  my  present  si- 
rtnation,  and  that  of  my  dear  prince  too,  can 
tkave  no  room  to  suspect  me  of  flattery)  Ihat, 
•a  I  have  been  his  companion  in  the  lowest  de- 
^^rec  of  adversity  that  eTer  prince  was  rcdncetl 
rio,  «o  I  bare  beheld  him  too,  as  it  were,  on  the 
tliighest  pinnacle  of  glory,  amidst  the  continual 
applauses,  and  I  had  almost  said,  adorations  of 
the  moat  brilliant  court  in  Europe ;  yet  he  was 
iftlwaja  the  same^  erer  affWbte  and  courteous, 
rgtviog  constant  proofs  of  his  great  hunrjanily, 
^nd  of  his  lore  for  his  friends  and  his  country. 
HVhat  great  g<Kod  to  these  nations  might  not  be 
fcx^ected  from  such  a  prince,  were  he  in  pos* 
isession  of  the  throne  of  liis  ancestors  1  And  as 
^to  ilia  courage^  none  that  have  ever  heard  of 
,liis  glsrious  attempt  in  1745,  can,  1  should 
^iok,  call  it  in  question. 
»  **  I  cannot  pass  by  in  silence  that  most  ut^ 
Quat  and  horrid  calumny,  (viz.  of  giving  do 
quarter  to  our  enemy)  raised  by  the  rebels 
Mioder  the  command  "of  the  inhuman  son  of 
iMhe  elector  of  Hanover,  which  served  as  an 
^excuse  for  the  unparalleled  butchery  com- 
'VDitled  by  his  orders  in  cold  blood,  after'the  un- 
■happy  aJIdir  of  Cylloden  ;  which ^  if  true,  must 
Jiave  come  to  my  knowledge,  who  had  the 
honour  to  serve  my  ever  dear  master  in  Quality 
4Kf  one  of  hm  aidei  d«  camp :  and  I  hctety  d&r 


dare  I  never  heard  of  such  orderi.     Thii 
above  is  truth.  Archibald  Cameron.'* 

"  I  iikeways  declare,  on  the  word  of  a  dyin^ 
man,  that  the  last  time  I  had  the  honour  to  seo 
his  royal  hlghaefs  Charles  princif  of  Wales,  he 
told  me  from  his  own  mouth,  and  hid  me  as- 
sure bis  friends  I  rum  him,  that  he  was  a  meia* 
ber  of  the  church  of  England. 

"  AncHLBALD  Cameron. *• 

On  a  fifth  Slip  qf  Paper. 

**  To  corer  the  cruelty  of  murdering  me  al 
this  distance  of  lime  from  passing  the  unjust 
attainder,  1  am  accused  of  lieing  deeply  con* 
cerned  in  a  new  plot  against  this  goveiumenb 
(which,  if  I  was,  neither  the  fear  of  the  worst 
aeatb  their  mahee  could  invent,  nor  the  blus- 
tering and  uoiey  threatning  of  the  tumultuous 
council,  nor  much  less  their  flattering  pro- 
mises, co»ld  have  extorted  any  discovery  of  it 
from  me)  but  not  so  much  as  one  eridence 
waa  ever  produced  to  make  good  the  charge  r 
hut  it  is  my  business  to  submit,  since  Goil, 
in  his  all-wise  Providence,  thinks  fit  to  mufler  it 
lo  be  so ;  and  I  the  more  cheerfully  resign  my 
tilff,  as  it  is  taken  away  for  doing  my  dutv  to 
God,  ray  king  and  my  country  ;  nor  is  tbera 
any  thing  in  this  world  1  could  so  much  wish 
to  have  it  prolonged  lor,  as  to  have  another  op- 
portunity of  employing  the  remainder  of  it 
in  the  aame  glorious  cause. 

"  Arcbieald  Camsron." 

'^  I  thank  God  I  was  not  in  the  least  daunted 
at  hearing  the  bloody  sentence,  which  my  un* 
righteous  judge  pronounced  with  a  seeming  in- 
sensibility, till  he  came  to  these  words  *  But 
t  Dot  till  you  are  dead  f  before  which  he  mad» 
a  pause,  and,  utteriog  them  with  a  particular 
emphasis,  stared  me  full  in  the  face,  to  see,  I 
suppose,  if  1  waa  as  much  frighteneil  at  them* 
as  he,  jierhaps,  wottld  have  been,  had  he  beeii 
in  my  place.  As  to  the  guilt  he  said  f  had  to 
answer  for,  as  having  been  instrumental  in  tba 
loss  of  so  many  lives,  l«t  him  and  liis  consti* 
loents  see  to  that :  at  their  hands,  not  at  mine, 
will  all  the  blood  that  has  been  shed  oo  that 
account  be  rei|uired. 

**•  Ood,  of  his  infinite  mercy,  grant  they 
may  prevent  the  punishment  which  hanga 
over  their  heads,  by  a  sincere  and  timely  re- 
peolance,  aivd  siiewly  return  to  their  dutj^. 

*^  I  pray  God  to  hasten  the  restoration  of 
the  royal  family  (without  which  this  miserably 
divided  nation  can  never  enjoy  peace  and  hap- 
piness,) and  that  it  may  ]dease  him  to  preserve 
and  delend  the  king,  the  prince  of  Wales,  and 
the  duke  of  York,  from  the  power  and  malice 
of  their  enemies ;  to  prosper  and  reward  all 
my  friends  and  benefactors,  and  lo  forgive  all 
my  enemies,  murderers  and  false  accusers^ 
from  the  elector  of  Hanover  and  his  bloody 
son,  down  to  Samuel  Cameron,  the  basest  of 
their  spies,  ag  I  freely  do  from  the  bottom  eC 
my  heart,  3ic  Subscribttur^ 

«*  AncumAJLU  C^iiiitoit*** 


f6  GEORGE  U. 


"  I  am  now  ready  to  be  offered ;   I  have 
fought  a  good  fighU    All  glory  to  God." 

<'  The  above  is  a  faithful  traufcript  of  my 
late  dpar  husband'a  dying  sentimeDta. 

Sic  SubicrUfUttr^        *'  Jban  Cameron.'' 


Pfoeeedm^  agamd  Dr.  <!ameron.  [T44 

•*  My  love  aod  djiug  beDedietioa  la  my  eUl- 

dreu,  affection  to  my  brotber'a  cbildiCD,  beat 

wisbea  to  all  my  fnendu,  and  hearty  i 

my  good  acqaaiotaiioe. 


CoP7  of  a  Letter  iVom  Dr.  Archibald  Ca- 
meron, under  Sentence  of  Death,  to  his 
Son  in  France. 

"  Toofer  cfLimdon^  June  6, 1753. 
••  My  dear  child ; 

**  It  is  with  the  highest  aatisfaotion,  that  I 
bave,  for  some  time  past,  observed  io  yon  a 
aense  of  honour  and  loyalty,  much  beyond 
what  could  have  been  expected  from  a  boy  of 
your  years ;  and  though  death  will  soon  de- 
prive me  of  the  power  of  being  of  farther  aer- 
▼ice  to  my  king,  prince,  and  country,  yet, 
nvbat  greatly  adds  to  my  satisfaction,  is  the 
prin€i|ile  vou  shew  in  your  letter  to  your  mo- 
ther, on  the  news  of  my  being  in  custody,  and 
the  confidence  vou  have  of  my  inviolable  fide- 
lity to  the  royal  cause :  I  give  yon  the  joy  to 
assure  you,  that  your  confidence  ia  well 
grounded ;  for  I  have  been  unalterable,  even  in 
the  smallest  matters;  and  my  approaching 
death,  and  the  most  severe  usage,  will  rather 
^•erve  to  confirm,  than  shake,  my  fixed  reaoln- 
^on  of  remaining  ao  for  ever. 

*'  I  am  fiir  less  concerned  about  myself,  than 
about  my  friends  and  ruined  country :  thev, 
not  I,  claim  pity,  though  liall  a  victim  to  trutn, 
bonour,  and  uprightness,  by  the  rage  of  Ha- 
'noverian  councils,  the  declared  enemies  of  everv 
virtue.  I  thank  God,  I  am  hearty,  and  in  much 
■better  health  than  I  have  been  tor  aome  years 
past ;  more  especially  since  I  saw  that  letter, 
ivhich  gives  me  such  hopes  of  your  future 
conduct,  from  the  desire  you  express  in  it,  that 
I  should  rather  sacrifice  my  life  thnn  save  it  on 
dishonourable  terms.  1  thank  my  God,  I  was 
always  easier  ashamed  than  frightened. 

"  I  have  no  money  to  leave  you  as  a  legacy, 
but  take  «» hat  is  of  infinite  more  value,  via. 
above  all  things,  first  serve  Go<l,  next  your 
king,  nrince,  and  country  ;  then  be  always  in 
your  tiuty  to  your  mother,  brothers,  and  sister ; 
act  honourably  and  honestly  by  your  neighbour; 
meddle  in  no  party  quarrels ;  but,  when  you 
are  personally  wronged,  demand  justice  with 
'coolness,  reirularity  and  resolution,  without 
personal  reflections ;  beware  of  ever  speaking 
to  the  disadvantage  of  the  absent,  even  thoogn 
they  should  deserve  it. 

*'  I  recommend  to  you,  in  a  particular  man- 
ner, the  care  of  your  health ;  observe  great  mo- 
deration in  eating,  at  any  rate  abstain  from 
beavy  and  late  suppers,  and,  above  all,  avoid 
drinking  and  whoring.  Be  a  good  ceconomist 
of  your  little  money  and  clothes.  Let  the 
company  you  frequent  be  rather  of  your  betters 
than  your  inferiors. 

"  My  time  and  writing  implements  allow  me 
only  to  recommend  my  must  liearty  thanks  to 
my  noble  and  worthy  colonel  [lord  Ogilvy] ; 
doo't  neglect  year  duty  to  him* 


roenla  to  all 

•         a 


Aad 

a 


[Here  this  great  good  man  waa  ebligad  to 
leave  off*,  probably  tor  want  of  a  knife  to  cnt 
his  bit  of  a  pencil ;  and  he  never  bad  an- 
other opportunity  to  add  what  be  bad  to  say 
farther  to  bia  son,  except  wbat  be  bad 
told  a  friend  1^  word  of  mouth,  tbe  mora- 
ing  of  his  execution,  in  delivering  the 
laat  preaent  he  sent  his  aon,  which  wu  a 
pair  of  steel  shoe-buckles,  with  thia  eham 
(which,  that  it  might  not  be  foiyntlw^la 
repeated  aeveral  times),  viz.  '  Tlieaa  1  mai 
<  by  you  to  my  wife  as  my  laat  preaent  ti  My 
'  son,  and  bid  her  tell  him  from  me,  Tbnt  I  wd 
'  him  these,  and  not  my  silver  onea ;  and  M, 

*  if  I  had  gold  onea,  I  would  not  aend  bunths 
'gold,  but  these  steel  ones,  wbieb   I  nwa 

*  wheu  skulkiiig[ ;  for,  as  steel  ia  hard  and  rf 

*  small  value,  it  is  therefore  an  emblem  of  caa- 

*  sUncy  and  diainterestodnesa :  ao  I  would  1mm 

*  him  conatant  and  diaintereated  in  tbe  asrvisa 

*  and  detence  of  his  king,  prince,  and  uo—bt; 

*  and  neither  be  bribed  nor  frigfalened  fiaai  M 
« duty.'] 


An  Authentic  Account  of  the   Behtfiocr  if 
Dr.  Archibald  Cameron. 

«<  When  this  gentleman  came  to  the  plass  if 
execution,  he  Icmked  on  the  officers  and  sptfi- 
tators  with  an  undaunted  and  composed  coaaM- 
nance ;  and,  as  soon  as  he  was  onlooaed  fisB 
the  sledge,  be  started  up,  and  with  an  hmio 
deportment,  slept  up  into  the  cart,  by  die  helptf 
one  of  bis  executioners ;  whence  looking  roOMf 
with  unconcern,  on  all  the  awful  apparatai  if 
death,  he  smiled :  and  seeing  tbeclergymaadiat 
attended  him  coming  up  the  steps,  he  came  im^ 
ward  to  meet  him,  and  endeavoured,  with  Us 
fettered  hands,  to  help  him  up,  saying.  So— Ma 
you  come  ?  This  is  a  glorious  day  to  me  1  Til 
my  new  birth- day ;  tliere  are  more  witocMM 
at  this  birth,  than  there  were  at  my  first.  Tba 
clergyman  asked  him  how  he  did:  he  M^ 
Tliank  God,  I  am  very  well,  but  a  little  fa- 
tigued with  my  journey  ;  but,  blessed  be  Godt 
1  am  now  coma  to  the  end  of  it. 

**  On  hearing  one  of  the  gentlemen,  wba 
presided  at  the  execution,  ask  the  clergyDna 
whether  he  would  be  long  about  hia  offioe,  lift* 
Cameron  immediately  took  the  word,  andsud. 
He  required  but  very  little  time,  for  it  wai  but 
disagreeable  being  there,  and  he  waa  as  impa- 
tient to  be  gone  as  they  were.  Tbe  cleigyiBio 
tlfen  asked  the  gentleman  who  had  spslf^ 
whether  he  was  tbe  sheriff?  and,  on  bis  Mf 
answernl  in  the  affirmative,  he  told  him  Jk» 
Caroeron*s  business  there  would  be  fiMf 
with  him ;  that  he  had  something  to  oomoMMT- 
cate  to  him,  if  he  would  take  the  troofcli  i* 
come  near  ;  which  he  very  readily  cooflii' 
iriih,  aad  endeavoinred  to  bring  hia  borK  eb0 
to  the  cart:  bnt  finding  tbe EocmmlitlkMi^ 


IT«J 


Triat  of  M' Daniel  and  Mkers. 


A.  0.  no. 


[746 


llrfijiSpd  tkftihe  roitid  not  heir  n  Jiat  ihe  rioctnr 
fcy  rr«ioa  of  ilie  noi«*e  of  the  muUiruiM, 
';Dnei|  m'\i)\  \%\n  hnml  for  Bileric»*»  l»ut  to 
mninite,    wbrreupon    he  fi-ry   oMiginfirly 
ilril,  feiiJ   ctirne  ii|i  thp  si^\%^  and,  hiiIi 
kt  dtitfiy  ftiiil  »ltetition,  liNtrneiJ  to  the  Doc- 
I0r,  w  lio  spoke  to  tliia  |uiV|><Mf^  ; 

*•  *  Htt,  ^no  mi*  a  ff'llo*  subject  juil  ^iiig  to 
*pa^  'Tit   to  his  kitig  ttorl  rciutitry. 

•I  '  (tiHy  re^ij^ti  my  hl'e^  ai  it  i« 

•  lakrD  ii^nn  iiic  ^or  doint«f  my  iliily  aooordinu 
'  19  AjT  conscience.  1  freely  frtri^iYe  all  my 
^tDcmftet^  amJ  tb^te  who  are  itistrumental  in 
'  UlaiilC  »^  niy  hfe.     I  Itiank  God  I  die  in 

•*  *  At  to  my  feli^^ioiT,  I  die  a  itedfast 
*(lbo«^lt  tii»w<irthy)  niember  of  that  churcU, 
*iiiiiliicii  1  have  alwfiyi  liv«d»  the  chtirch  «)t 
*-Sng^Qil,  in  wbtiae  coinmunbii^  I  hope 
*  lllM^qyh  the  merits  of  my  b1r«:se4l  Huvinur)  fur 
*bf{W«fien  of  my  sins,  (or  which  1  am  hear- 
^tilytorry. 

'  Hie  eu«torn  of  deUvprin^  aomethin^  in 
f.  OQ  sQch  fx:casions  as  this,  1  thoiild 
ly  liave  cMtiplied  i^iilht  had  not  my  ua- 
lo  bard  utiftee,  e?en  utter  sentence,  put 
*l|«gt  of  my  power,  beinir  denied  the  use  of 
*pHi«  inkf  and  paper,  except  in  the  presence  of 
*iMMI  of  my  keepers.  Uu4  nliat  I  intend  roy 
*euaiitry  ahouM  be  informed  of,  with  re^faid  to 
*  mj  dying  sentiments,  I  tiave,  by  the  meaoH 
*«(4  btiiiit  iieucjtf  endeafoured  to  set  down  on 


*  somes1ip«  of  ptippr,  b?«  I  could  come  by  them, 

*  in    as  lej^ilde  cbaiHCterH   ^%   I  wft»i  able;  and 

*  iliese   I  have   left  n\  the  hands  of  my   wife, 

*  chorifirig  her,  on  her  duty  to  lier  d\in|r  bun- 

*  hand,  to  imnHmii,  wiibxlt  crtnvenieul  »«pe<Hj»a 

*  taiihfiil  tran«cripl  uf  tbmi  to  yi»u^  a«iil   1   Mm 
«  confident  sl»e  will  honourably  dixchaige  the 

*  iniat,** 

**  lie  then  told  the  sheriif  be  would  presume 
no  Imtirpr  ii|»ftn  \\\h  paiieoce  ;  tuit  tb^*  Mheriff, 
w  itb  hKikfi  I  hill  bmpoke  a  i^rfat  ileiil  f^\  concern^ 
Mnd  v^itb  mncb  pKnl  nsilure,  !j«*^r^pd  he  i^otild 
inke  H6  much  time  a^  he  ptcased,  i'nr  they 
wouUI  wait  till  be  %«a8  nr-ady.  The  diH'iJr 
thanked  hira, — Then  turning  to  the  cteni^  mao, 
he  said,  I  have  now  done  with  this  world ^  and 
I  urn  ready  to  lenveiL* 

**  He  joioed  heartily  in  the  cominertdiiory 
prayen,  &c.  then  repeated  some  ejacolations 
out  of  the  Pttiilms :  after  which  be  embraced 
the  clergyman,  and  took  leare  of  biro. 

"  P.  S,  As  the  clerirymaD  was  jfoin^  down 
from  the  cart^  be  bad  hke  to  hate  mixKed  the 
stt^|j«>  which  the  doctor  olH»ervinf^,  eallea  out  to 
him,  with  a  cheerful  tone  <d' voire, fay lot;.  1  ako  - 
care  bow  you  j^o  I  ihink  you  don'i  knoif 
iliit  way  M)  well  as  I  du**^ 

♦  **  Which  Mrs.  Cameron  most  faiibfullj^ 
performed,  aendb^  along  with  tt  i*  letter  froni 
lierseit;" 


5*  TheTrial  of  Stephen  M*Daniel,  John  Berry,  Jamks  Ega^^ 
(otherwise  Gahacan)  and  James  Salmon,  at  Justice-Hall  in 
the  01d-Bailey>  oq  Saturday  the  1st  of  March,  17^5,  before 
the  Right  Hon.  Stephen  Theodore  Janssen,  esq.  Lord  Mayor 
of  the  City  of  London;  the  Hon,  Sir  Richard  Adams,  knt# 
the  Hon.  Mr.  Justice  Wilmot,  William  Moreton,  esq.  Re- 
corder, and  others  of  his  Majesty's  Justices  of  Oyer  and  Ter- 
miner, for  the  said  City  and  County,  for  being  Accessaries 
before  a  Felony  committed  by  Peter  Kelly  and  John  Ellis,  in 
the  County  of  Kent ;  for  which  they  were  tried  and  con- 
victed at  the  Assizes  held  at  Maidstone,  August  13,  1754;* 
27  George  IL  a.  0.  1755* 


JtJRV. 


fHniTyirides, 


r  GarAiter« 


Randolph  Baileys, 
John  Keen. 
Henry  Km^bt, 
William  UaJisoD^ 
John  Brewin, 
John  Prick  tow. 


,  Kl.Stii,  3<;5. 


Stephen  M*Datiiel,  John   Berry,  Jam» 

Kgan  (otherwuie  Ctthui^tip)  and  James  Sulmon, 
wore  indicted,  for  that,  at  the  gaol-delivery  for 
our  sotereijurn  lord  the  kmg  ai  the  coauiy 
^aol  at  >laidatone  lor  the  couniy  ol  Kent,  on 
Tuesday  Ibe  I3lb  "I'  Auguiit,  in  the  twenty <• 
et^hUi  vearid  iHir^aid  jMi^erctgu  lord  the  king't 
Ptter  Eelly  and  John  Ellia  were,  in  due  tfsria 
ioUicted  fur  a  robbery  on  the 


747] 


37  GEORGE  II. 


Trial  qfM'Danid  and  ethen. 


n 


.hif(h-way  on  James  Salmoo,  bypotting^  him 
IB  corporal  fear  and  dao^r  of  his  life,  in  the 
pariah  of  Si.  Paul,  Depttord,  in  the  connty  of 
Kent,  and  taking  from  him  one  linen  hand- 
kerchief, Talue  4d,  two  pair  of  leather  breeches, 
one  clasp-knife,  one  iron  tobacco*  box,  one 
ailfer  pocket-piece,  one  guinea,  and  one  half- 
crown;  and  that. the  said  Peter  Kelly  and 
John  Ellis  were  tried  and  convicted  for  that 
robbery ;  and  that  the  said  M*Daoiel,  Berry, 
£gan,  and  Salmon,  on  the  23d  of  July,  1755, 
in  the  city  of  London,  were  accessaries  before 
ibis  felony  was  committed;  and  feloniously 
and  maliciously  did  aid,  abet,  assist,  counsel, 
hire  and  command  the  said  Ellis  and  Kelly  to 
commit  this  robbery,  against  the  peace  ot  ^ius 
migesty,  his  crown  and  dignity. 

There  was  a  second  count  in  the  industment, 
as  an  offence  at  common  law. 

At  the  desire  of  Berry,  the  witnesses  were 
cscamined  apart. 

Joteph  Cox  sworn. 

(He  produced  the  copy  of  the  record  of  the 
conr iction  of  Peter  Kelly  and  John  Ellis.) 

Q.  Where  had  you  this  ?— .Cox.  1  had  it  of 
Mr.  Knap's  clerk. 

Is  it  a  true  copy  ? — It  is;  the  clerk  and  I 
examined  it  with  the  record;  I  looked  over 
the  record  on  the  file,  while  the  clerk  read 
this;  after  that  the  clerk  read  the  record, 
while  I  looked  over  this.  (It  is  read  in  courts 
the  purport  of  which  is  «« That  Peter  Kelly 
and  John  Ellis  were  tried  on  the  13th  of  August, 
1754,  at  Maidstone  assizes,  before  sir  Dudley 
Ryder,  knt.  and  sir  Michael  Foster,  knt.  for 
the  said  robbery  on  the  defendant  Salmon,  and 
found  guilty.") 

Thomas  BUe  sworn. 

T.  BUe.  I  have  known  the  prisoner  Berry 
eight  or  nine  years,  and  Bl*Daniel  twelve 
months  last  November.  I  never  had  any  great 
acquaintance  with  Salmon,  till  through  Berry, 
in  the  month  of  June  last.  I  have  known 
Egan  four  or  five  years,  by  his  coming  back* 
wards  and  forwards  to  Berry's. 

Q.  Did  you  know  Peter  Kelly  and  John 
Ellis? — BUe.  I  did;  I  believe  they  are  now 
in  Maidstone  gaol ;  they  were  when  I  came 
away  last  Monday. 

Court.  Tell  the  Court  the  first  time  yon  had 
any  conversation  with  them. — Blee.  I  lodged 
at  Berry's  house,  and  worked  for  him ;  Berry 
said  to  me,  in  the  beginning  of  July,  Go  to 
Mr.  M*Daniel,  (he  lived  then  in  Scrub's-court, 
Holborn)  and  tell  him  I  want  to  speak  with 
him.  I  went,  and  he  and  I  came  back  toge- 
ther to  Berry's  house.  They  both  said,  Tom, 
money  grows  scarce,  you  must  give  a  sharp 
look-out  for  a  couple  to  go  upon  the  scamp 
now,  and  if  you  cannot  get  two,  you  must  get 
one. 

Q.  What  did  they  mean  by  going  upon  the 
scamp  P—B/f«.  That  is,  to  go  upon  the 
highway.    ItoMthem^uKiddcii'tWMiobMl 


an  affiur,  I  did  not  chose  to  be  eonoemed  on 
He  was  convicted  last  January  was  twel 
month,  and  executed  at  Tyburn.  M'Dai 
said,  Damn  your  eyes,  if  you  don't  it  abaU 
the  worse  for  you.  Then  Berry  said,  1  bhi 
go  about  my  business ;  so  1  went  awmy.  1 
next  morning  Berry  called  me  into  hia  mm 

Where  did  heUve?— At  a  phu:ecdM 
George-yard,  at  the  upper  end  of  HatI 
Garden.  He  then  said.  Go  up  to  Mr.  M^Daai 
house,  and  desire  him  to  meet  me  in  Ibe  iii 
about  11  o'clock.  1  did,  and  we  went  into  t 
Spa-Helds,  and  Berry  came  tu  us.  Thev  h 
said  to  me,  Go  and  look  about  the  fieuk  4 
we  will  lie  down  on  the  grass,  and  ae«  If  j 
can  pk;k  up  a  couple  of  idle  fellowa,  thai  ■ 
do  for  the  purpose,  and  introduce  younrifa 
their  company. 

What  did  they  mean  by  that  parpoieM 
go  upon  the  scamp  were  the  wcmis  thev  ■ 
accordingly  we  three  went  into  the  6mii 
verel  days,  but  could  not  meet  with  any  ha 
fit  for  the  purpose.  I  remember  one  4n 
particular,  it  was  Monday  the  15th  of  Jal 
that  day  they  ordered  me  to  go  into  the  §tk 
and  said  they  would  come,  and  1  sat  then  li 
honra  before  they  came  niffh  me:  tb 
M*Daniel  came  to  the  top  of  u\e  hill,  aai  I 
me  come  to  the  sign  of  sir  John  Oldatfde^ 
pnblic  house,  and  said,  my  maater  .was  thai 
be  and  I  went  there,  and  ((own  to  the  bottoa 
the  yard ;  and,  in  the  farthest  arbour  bat  ai 
on  the  left-hand  side,  there  Ui  Berry  and  8i 
mon  the  breeches-maker.  Berry  fid  m  i 
down,  which  J  did ;  there  we  all  disconnedl 
gether  about  doing  this  robbery:  M'Dsii 
said,  We'll  do  the  thins'  somewhere  toww 
Blackheatb ;  then  he  and  Berry  had  a  sort  < 
a  wrangle  whether  they  ahould  not  have 
done  between  New-cross  turnpike  and  Dcf 
ford,  just  facing  the  four  mile- stone. 

Was  there  any  particular  reaaon  to  have 
done  in  that  place  f— Yes,  they  said,  there  ii 
reward  of  twenty-pounds,  that  is  given  by  ll 
inhabitants  of  East-Greeuwich  for  apprebeai 
ing  highwaymen  and  foot-pads:  Berry  ni 
Suppose  we  have  Egan  concerned  witn  ai 
then  they  Ulked  about  his  being  the  fenoe, ; 
they  calf  it. 

What  did  they  mean  by  that  word  ?—Tli 
is,  to  buy  the  goods  after  Salmon  had  bei 
robbed  of  them :  M^Daniel  made  an  obiecti 
to  Egan's  being  in,  because  he  thought  fi 
would  be  too  many  to  be  concerned  in  the  i 
ward :  Berry  said,  We  cannot  cleverly  do  wit 
out  him,  and  if  there  are  five  of  ua  conoernc 
it  will  be  pretty  nigh  twenty  pounds  each,  if 
constable  should  come  in  :  and  they  all  tbn 
that  is.  Berry,  M*Daniel,  and  SaimoUf  ee 
eluded  that  Egan  should  be  concerned  as 
fence  in  the  rob^ry :  and  Berry  said,  he  waa 
go  and  let  Egan  know  of  it  that  night ;  ai 
said  to  me.  Now,  Tom,  you  may  go  has 
about  your  business,  we  will  not  be  bmb 
walk  along  the  streets  together ;  so  1  wf 
away  and  left  them.  The  next  momiiiff  I  w« 
out  again,  to  see  if  I  could  find  •By  Dod{y  i 


|7|9}  «  Accessaries  to  a  Felmiy  btfbre  the  Fact,  A*  D,  175^. 


[753 


l^rfOtf,  lul  I  could  not  that  day  ;    the 
•n«r,  which  was  ou  a  Wetlneflday,  1^1  r. 
^^  calird  me  into  hii  room,  arnJ  orcJereti  me 
rtiiil  Utl  91' Daniel  to  come  to  him  to  tlie 
4aa  In  Holboni;    I  went,  and  M'Daniifl  | 
wrnt  to  tht  Bell  tojrethcr ;   there  were 
[  Jaifi  9  Haloiot),  and  Oerry  ;    we  < 

iier  ;    ttiev  hid  me  come  and  ' 
I  ill  down,  i»ht€h   I  dill,  and  ilrank  part  of  a  pot  | 
I  «f  berr «    lh«ii  we  all  concluded  thai  the  tUiai^ 
■M  be  done.  f 

Wli«re  is  (he  Belt-Inn  ?— It  if  in  the  city  of 


l»cjroud  Bartlet^a-buildiDgii  on  the 


was  to  he  d<>fie?— That  if  T  could 

go  on  ihe  ht|;h way,  that  Salmnn 

H'-Tin  to  he  robbed  ;   and  Berry 

.ihoiit  mnkin^  two  pair  of 

-..  uon  was  to  he  rohhcd  of,  and 

under  the  pocket  or  waistband 

rticular    mark  ;   to  the  best  of 

f?  li  was  to  be  J.  8.    Then  Berry 

jiAid,  «hey  rou«t  have  a  particular 

\.rm  :  then  91 'Daniel  put  his  hand 

->ct,  nnd  pulU'd  oat  this  hundker- 

diiii  Lkit  i    have  now  in  my  hand  :    Jamea 

Milaioii   laid,  he  Itad   j^ot  a   handkerchief  at 

Iwine,  iHal  he  would  mark  so  as  to  swear  to  it ; 

«kikh  he  W4S  to  mark  with  tour  oilet-holea, 

mm  it  taeh  corner.     Berry  saiil,  they  should 

atot  a  lt»baoco-box;  A]*t>aniel  said,  he  had 

fH  a  fery   remarkable  one,  that  any  body 

ti^  fwear  to ;  whicli  I  hare  fetched  forty 

liifni«nnv  ttttrthi  of  tobacco  in  for  M^Daniel, 

to  be  the  same  now  ;    (takiog^  it 

>l 'Daniel  said,  he  would  ^iTe  it  to 

to  be  robbed  of:  then  they  aaid,  they 

a  halfpenny «  and  would  hafe  it  mark- 

I  '      •  I  said,  he  bad  tf«it  a  pocket-piece ; 

i  »aw  his  wife  buy  for  three-pence 

vorth  of  gin  some  time  be- 

)  would  do  ;  and  it  should  b« 

kt'ii  \viiii  n  Mu>cmaker*i  tool,  and  he  fi^afe 

^gan  to  mark  it  i    £gan  said,  he  had  got 

that  he  u«ed  to  itimp  the  shoes  withi 

be  would  mark  the  piere  with:  then  (bey 

Ihe fu  briftie  about  my  bu^ttnesa,  which  I  did. 

next  morning  Berry  called  me  up  into 

•gaiti,  he  (^f  »f  me  three-pei^Ctf,  and 

me  to  go  down  to  the  Fleet-market,  to 

eottid  pick  up  two  men  or  lad&  there. 

U  be  say  any  thing  more  at  that  timeP — 

Mill,  to  do  the  thing.      I  knew  i*  hat  he 

I  accordingly  t  went  down  to  the  mar- 

»(l  met  wiUi  heter  Kelly  and  John  Ellia. 

JQQ  boow  them  betbre'?— I  diti ;  I  knew 

» be  very  bid  lads,  that  is,  pick-|H>ckets. 

llicm  aome  gin,  but  had  no  diacour»e 

t  tbat dny  »bout  the  thing:  tbe  neiLt 

0erT^  I  rtlif..i  rne  into  bin  room  again , 

fiva  me  I  e  more,  and  bid  me  go 

ll»i  I  '  kct  to  them,  and  be  nure 

iv#  ft  little  Ulk  with  them,  and  told  me 

(o  aay ;   and  that  woi,  to  tdl  them,  I 

to  get  a  bra?e  parcel  of  hillies. 

is  tbe  meaninff  of  that?— He  meant, 

fH  mparcei  i^  baeD,  if  ibey  wggid  go  witb 


IfiOID] 


rii 


me  to  Heptford.  I  went  and  met  them  there, 
Aiift  told  ihem  i$  Berry  ordered  me;  that  ts» 
1  told  them  1  knew  where  to  get  a  brarc 
parcel  of  luUiei,  if  they  would  go  to  Deptford 
witb  me. 

Did  you  tell  them  Berry  told  you  so  f — No» 
I  did  not;  if  I  had,  tht-y  would  not  hafe  agreed 
to  go ;  they  both  agfee<l  to  go  with  me  aoj 
tinoe  t  thought  proper ;  then  i  tef\  them  for 
that  day,  and  bid  them  a  gooil  night. 

You  say  you  kuew  Kelly  aod  Ellis  before  ; 
What  are  they  ?— Ellis  is  a  chimney-sweeper, 
about  twenty  years  of  a^e;  and  the  other 
ibnut  twenty -one,  by  their  looks.  The  next 
morning  Berry  colled  me  into  bis  room  again ; 
F  came  home  pretly  lute  over  night,  so  1  bad 
not  seen  him  then :  he  ordered  me  to  go  and 
teM  M  'Dsniei  to  come  to  him  to  tbe  sign  of  the 
Plumb^Tree,  in  Plumb-Tree  court,  Shoe-lanei 
at  the  botloro  of  Uolborn-bill  ;  accordingly 
M  'Dnniel  and  I  went  there ;  there  were  Berry 
arid  Salmnn,  Berry  told  Salmon,  1  had  got 
two  men,  Ellis  and  Kelly,  and  they  had  agreed 
to  go  along  with  me  any  where,  vihere  I' 
thought  proper,  as  I  had  told  him  before, 
that  morning ;  Berry  bid  me  drink  ouce,  and 
go  about  my  business. 

Did  Sidmon  say  any  thing  to  it  tlien  ? — No, 
he  did  not ;  the  reason  they  chose  I  should  go 
by  myself  was,  because  |Kropte  should  not  tak« 
notice  (»f  me.  I  went  away,  and  letl  thein 
three  all  together. 

Did  they  say  so?— They  did. 

When  did  they  say  that  P— When  Berry  and 
he  gave  me  this  great-coat  I  hare  now  oOp  la 
disguise  myself.  ' 

When  Wis  this? — It  waa  on  a  Friday;  I 
remember  it  was  market-day  at  Hmlthfield,  and 
T  had  been  thi^e  to  Kelly*  and  Ellts.  I  savr 
them  in  tlie  Fleet-market  on  a  pea-cart,  be- 
twixt fl?e  and  b\k  o'clock  :  I  asked  them,  if 
they  would  have  a  glass  of  gin  ;  and  gave 
them  each  a  glass,  and  bid  them  good-bye: 
about  two  hoora  atler  \  met  them  again  in  the 
market,  and  asked  them,  if  thev  wuuld  go  to 
Deptford  or  not  ?  They  said,  'Yes.  Kelly 
asked  me«  if  1  had  got  ever  a  bag  to  put  the  linen 
in  ?  t  said,  we  did  not  want  a  hag,  I  would  tell 
them  more  of  that  another  tiuie ;  and  left  them 
then.  At  night,  it  lieing  Saturday,  Berry  call  - 
ed  me  into  his  room,  and  asked  me,  if  1  had 
seen  them  and  talked  with  them  ?  1  said,  I 
had:  be  said,  that  was  very  well.  He  said, 
when  you  get  up  in  the  morning,  come  into 
my  room  before  you  go  out,  which  was  the 
Sunday  morning  :  1  got  up,  and  wettt  in  \  he  , 
then  gave  me  sixpence  to  treat  them  with,  I 
went  out  into  the  brick- fields,  and  found  them, 
and  treated  them  with  S4«me  gin  and  lieer ;  and 
we  agreed  to  go  to  Deptford  to  steal  sonio 
linen,  and  I  bid  ihem  a  good-bye  for  that  time; 
and  said  to  them,  I  would  meet  them  on  the 
rmirrow  morain)? ,  I  left  them  in  the  Kpuw*  i 
tiehh,  and  went  to  RI^DanierH  Iiouhc  and  dined 
there.  I  told  1V1<  Daniel  I  had  got  two  lads 
that  I  believed  would  suit  for  the  thing*  and 
told  htm  who  they  wer«  -,  sod  samI^  V  v^qmX^ 


751] 


27  GEORGE  11. 


Trial  qfAPDanid  and  oihers. 


[752 


let  liim  know  more  of  it  od  the  morrow,  fur  I 
should  see  Uiem  ai^n  (o-nisht  or  to-morrovr  ; 
be  !Mii(l,  that  was  very  well.  At  oiij^ht  I  saw 
Berrv,  aod  told  hhu  wnat  had  pa8se<l  between 
the  lads  and  I ;  be  said,  it  was  very  well,  he 
should  see  Egan  to-morrow  moroiniii^ ;  then  I 
went  to  lied.  The  next  mornin^r,  which  was 
Monday  the  29d  of  July,  about  five  o'clock. 
Berry  called  me  into  his  room  again,  and  bid 
me  go  and  tell  M'Daniel  not  to  be  out  of  the 
^ay,  and  he  also  gave  me  three-pence  to  go 
down  to  the  Fleet- market  to  treat  Ellis  and 
Kelly  with  some  gin.  1  went  down,  and  there 
1  met  with  them,  and  gave  them  each  a  half- 
peony-worlb  ;  and  told  them  I  would  fix  a  day 
.  when  we  should  go  down  to  Oeptford  :  then  I 
left  them,  and  went  to  M'DaniePs  boose. 
Abont  nine  that  rooming  there  came  Berry 
and  Eg^n  up  into  his  room  ;  Berry  said,  God 
damn  you.  Mack,  you  and  my  lord  mind  no- 
thiug  but  that  God  damnM  tea-kettle;  you 
don't  mind  to  look  aOer  business. 

What  did  he  mean  by  my  lordP — He  meant 
tne;  it  was  a  nick-name  they  gave  me. 
Bl^Daniel  answered,  He  is  just  come  from  the 
tHO  lads,  as  he  tells  me.  1  said.  If  Egan  luis 
a  mind  to  go,  he  shall  go  and  see  them  ;  he 
and  1  went  down  into  the  Fleet -market,  there 
were  the  two  lads  sitting  on  a  pea-cart ;  1  put 
my  hand  into  my  pocket,  and  gave  them  a 
halfpenny  each  to  go  and  get  some  gin.  Egan 
stoo<l  not  above  three  or  ^ur  yards  from  them 
at  the  same  time,  leaning  against  a  post ;  then 
lie  went  one  way,  and  1  another ;  I  went 
through  Plumb-Tree  court,  ami  met  Egan  in 
Shoe -lane ;  then  he  went  to  M'Daniel's  house 
again.  Egan  said  there  to  M^Daniel  and  Berry, 
By  God  they'll  do  very  well,  they  are  two 
pretty  lads. 

Berry.  Where  was  this  ? — Blee.  You  know 
well  enough,  it  was  at  M'Daniel's  house  :  then 
Berry,  Egan,  and  1  came  down  stairs;  we 
parted  with  Egan  at  the  end  of  the  court. 
Berry  and  1  went  over  to  the  Plumb-Tree ; 
and,  as  we  went  by  Salmon's  door  in 
Shoe-lane,  Berry  beckoned  him  out,  and  he 
went  with  us.  I  staved  and  drank  part  of 
one  pint  of  beer,  and  then  went  away  by 
Berry's  order,  and  left  ihem  together.  On 
the  Tuesday  morning  Berry  and  I  went  to 
the  Plumb-Tree  ale-house  again ;  he  bid  me 
go  over,  and  tell  M*Daniel  he  wanted  to  speak 
with  him  ;  I  went  and  told  him,  and  he  came  : 
then  1  went  out  of  the  hoose,  to  see  if  I  could 
find  ihe  two  lads  again ;  I  found  them  in  the 
Fleet -market,  and  discoursed  \%iih  them  ;  they 
said,  they  were  goin<;  to  work  (as  they  called 
ii)  in  the  Artillery-i^round. 

What  woik  ?-— It  was  picking  of  pockets.  I 
came  back  and  acquainted  Berry  and  M 'Daniel 
with  it.  Berry  gave  me  three- pence  in  half- 
pence,  and  they  bid  me  go  out  directly  to  them, 
and  keep  tiieiii  company  :  Berry  always  found 
the  mnney.  They  botii  said,  they  woukl  come 
into  the  Artillery  if  mtiiid  about  two  o'clock  to 
•ec  the  lads:  the  White  regiment  marched  that 
4ay  s  I  weot  and  walked  up  aiid  dowu  mth 


them.  Ab<iat  half  an  hotir  after  two  I  saw 
Berry  in  the  Artillery- ground ;  (1  was  to  take 
no  notice  to  Berry  and  M*DaDiel,  or  tliey  to 
me)  and  presently  after,  walking  round  by  the 
Artillery -House,  1  saw  M«Damel ;  after  that 
1  left  the  lads,  and  went  to  Berry,  as  he  stood 
at  the  Artillery -gate,  and  said  to  hiniy  Mr, 
Berry,  do  you  Uiink  they  will  doF 

Bin-jf.    What  time  of  the  day  was  tkisf 

Blee.    It  was  about  three  o'clook. 

What  was  Berry's  answer  to  that? — He  snd^ 
Do !  damn  me,  1  have  done  less  than  ibsy-over, 
for  March  and  Newman  were  less :  he  paCbii 
hand  in  his  pocket,  and  gave  me  sUpoMe;  mi 
bid  me  be  sure  not  to  leave  tliera. 

Berry.  Here  is  a  man  in  court  wfll  soi- 
tradict  that  (pointing  to  one  that  stosdiHr 
him). 

Court.  Don't  yon  know,  at  jour  n^ 
all  the  evidences  for  the  prosecution  was  fA 
out  of  court,  to  be  called  in  one  at  a  iMi;  il 
which  time  your's  were  put  out  alsof  Bi* 
came  this  witness  in  again  ?  He  most  goal, 
and  come  in  when  he  is  called.  (He  wsatal, 
but  did  not  come  in  again  to  give  eridsMi  m 
Berry's  defence.) 

Blee.  I  went  with  the  sixpence  looal  Ifci 
Artillery  ground,  and  met  with  M'Daaiel;  k 
said  he  was  going  to  Berry.  1  asked  himtfki 
thought  the  two  lads  would  do  ?  He  said,IlMi 
your  eyes,  I  have  done  less  than  they  smil 
Kingston. 

Had  he  a  sight  of  them  ?~He  had,  aet 
passed  him  before ;  he  and  Berry  wcat  taH 
the  ground,  on  purpose  to  see  them..  Thn  I 
left  M^Daniel,  and  went  and  gave  the  boys  pit 
of  a  full  pot  of  beer ;  then  I  bid  tbesi  fjM- 
bye,  and  told  them  I  would  see  them  agtnlhi 
next  morning,  which  was  the  24th.  1  veil  ^e 
home,  and  got  up  in  the  morning,  aad  mM  k  i 
Berry  1  wao  going  to  them ;  be  gave  DMtbiis-  is 
pence.  Then  I  went  down  into  the  FM-  |^  j 
market,  and  tolil  them,  I  believed  the  thhf 
would  be  done  on  the  Friday ;  this  was  imA  ^u 
Wednesday  :  if  not,  I  would  lei  them  kM«  iv 
farther.  Then  1  left  them,  and  at  night  1  wn^  U 
home,  and  told  Berry  I  had  been  agaia  alss^  p  a 
with  Ellis  and  Kelly.  He  said.  Damn  yiU», 
don't  go  to  deceive  us ;  do  you  oouie  op  ts  tb^ 
Bell  in  Holbom  by-aod-bve,  and  tdl  M'Dniei 
I  want  him.  I  went  to  M'Daniel's  boo«,  mA 
left  word  what  Berry  ordered  me ;  furM'Oi* 
niel  was  not  at  home.  Then  1  went  ts  tb^ 
Bell,  and  Beixy  met  me  just  at  the  door:  JM* 
as  1  was  going  into  the  house  he  said,  Hcrti^ 
three- pence ;  go  away  to  the  Artillery -gnNnrffl 
be  sure  to  be  there  about  two  o'ckick:  ihi* 
was  on  Thursday  the  96th,  in  the  moraisf* 
He  said.  Don't  come  in,  for  Mr.  Bagley  V 
there ;  1  don't  desire  he  should  see  you.- 

Who  was  that  Mr.  Bagley  ?— He  wait 
neighliour  of  Berry's.  1  went 
Artillery- ground  at  the  time ;  and  \ 
an  hour  and  a  half  before  1  saw  either  Bon] 
or  At' Daniel ;  but  walking  by  the  Artillsi^ 
groimd,  1  saw  M 'Daniel;  he  told  me  he  hM 
been  at  dinner  akuig  with  aoBiobody  ia  Ifei 

R 


away  to  tki 
I  walked  aksri 


S6S]  as  Accessaries  to  a  Felonry  hefort  the  FacL  A.  D.  1755. 

Artinery* house,  and  sard,  Where  the  (levil  is 
Herry  P  I  said »  I  oe? er  saw  any  thing  of  hitn. 
About  balf  ao  hour  after  thai,  there  was  hue- 
and-cry  afWr  a  pick- pocket,  M* Daniel  came 
to  me,  and  said,  God  damn  me,  the  chief  per- 
ptm  is  a-ducking  in  the  Pyed- Horse  yard  ; 
follaw  hill],  and  Lnve  him  suuia  gpn,  tor  I  hey 
liave  ttln)«9st  kilfea  him.  I  followed  him  (it  wa^ 
£IIii»  the  chixDney-sweeper,  the  higi^est  of  the 
two  lads)  cross  M Of >rtlelds  ;  I  saw  the  people  go 
Irom  hiiD,  and  there  were  \mi  Xw^  or  three  peo- 

ele  behind  hiro  ;  T  (^a?e  him  a  penny  (ir  three- 
alfpence,  1  donH  know  which.  Then  I  weat 
back  to  iM'Daniel,  and  told  him  he  was  very 
,fe  J  then  he  and  1  came  out  of  the  Artillery- 
jE^roaad  together :  as  we  were  coming-  oul  of 
pie  ground,  we  met  ooe  ihey  call  Piump  (his 
mme  Bichrook)  and  another  fellnw  they  call 
^loctor,  aiat  was  turnkey  at  Clerkeunell  Brii!e* 
well.  Plump  seeing  JIPDauiel  and  I  lO|jrether, 
id  to  me,  God  damn  you,  you  rascal,  you 
^erve  to  be  hanged  for  lliat  alfair  of  Kidden. 
l^Daniel  said  to  roe«  Come  along-,  donH  be 
lifraid  of  any  body.  We  went  over  Moorfields 
laj^elher.  He  ordered  me  to  go  to  his  wife, 
wlMch  I  did ;  and  atler  that  1  went  down  the 
irleet- market,  to  see  if  ElHs  was  safe;  I  found 
hoth,  and  told  them  1  would  meet  them 
next  morning :  they  s^iid,  ihey  had  no  mo- 
lo  pay  for  their  lodging  ;  I  haid.  Here  is 
vhalt|ience  for  you,  go  and  lie  in  the  hrick- 
to-nigiil.  Then  1  went  home  to  Mr. 
ry^s;  he  told  me  he  had  been  at  the  other 
end  «>f  the  lawn  about  some  bu&iness,  and  he 
couUI  not  come  into  the  Artillery- ground.  If 
lliis  affair  of  Etlis^s  being  ducked  had  not  hap- 
^ned,  the  robbery  of  Salmon  waa  to  hare  been 
cammitted  on  the  Friday* 

When  was  it  fixed  i^  be  on  the  Friday  ? — 
iTbat  was  determined  to  he  nn  tlie  Wednesdaj\ 
By  who? — Herry  and  I  pitched  upon  tite 
iug  in  the  morning,  and  he  wa^  to  go  and  let 
the  rest  know. 

Where  did  you  consult  this F— We  did  it  In 
lii^  room,  betbre  we  went  out  to  ^o  to  ihe  Bell. 
What  did  he  say  tu  you  about  it  then  ? — He 
^Ae  fjie  tell  the  lads  we  should  go  tu  Deptibrd 
lo  9teal  the  linen  ou  the  Friday, 
I  ^Vho  did  he  mean  by  the  rest,  which  he  said 
lie  would  let  know  it? — He  meant  Eg"an,  Sal- 
iDop,  and  M'DdnieU  On  the  Thursday  night 
lobi  Berry  of  Ellis's  being  ducked  ;  he  said, 
M*Dauld,  Egau,  Salmon,  and  he  bad  agreed, 
it  should  not  he  done  on  the  Friday,  lest 
lads  should  be  apprehended  on  the  Satur- 
day, and  kept  all  ilay  on  Sunday  in  the  watch- 
house  \  and  somebody  mij^ht  come  to  them,  to 
whom  they  might  tell  something  about  my  bc- 
iog'  concerned  with  them,  and  so  by  impeaching 
I  might  be  apprehended  ;  so  he  said  Ihey 
fixed  it  lo  be  on  the  Monday.  On  which 
iDg  1  got  up  by  Mr,  Berry's  orders;  he 
me  two-pence  or  three- pence  (I  c:mnot 
itife  which)  to  go  to  the  Fleet-market  tu 
them,  and  bid  them  stay  till  nins  o^ctuck. 
Bay  1  would  come  to  them  again ;  which  1 
d,  atid  reiurued)  as  Berry  ordei^  ine>  to  1m m 
VOU  XIX, 


[754 

at  the  Plumb- Tree  alehouse :  there  was  Sal- 
mon and  he;  he  sent  me  out  lor  IVPDaniel ;  I 
went  to  him,  and  he  bid  me  tell  Berry  he  was 
shaving  himself,  and  be  would  come  when  he 
had  done.  1  went»  and  told  Berry  ;  he  changed 
a  guinea,  and  gare  me  live  sbilUugs,  and  bid 
me  not  to  be  extra vagunt;  he  gave  me  that,  a« 
he  said,  to  ^ash  to  the  boys;  to  shew  it  to 
them,  and  say,  f  made  that  last  night :  I  was  ' 
to  pull  it  out  all  at  once.  He  gave  Salmon 
half- a -crown  to  he  robbed  of. 

W'as  it  in  one  piece? — No;  it  was  two  still* 
liai;s  and  sixpence. 

Who  were  present  at  thts  time  f — There 
were  Berry,  M^Daniel,  and  Salmon.  Then 
Berry  said  to  me,  Now  go  away  as  faiit  as  you 
can  ;  and  I  said.  At  whai  place  shall  I  stop' for 
you,  to  see  you  are  going,  that  v\  e  may  be 
hothiure?  t  said,  I  will  stop  at  the  Bell  m 
the  Borough  y  and  cull  for  a  glass  of  gin;  then 
you  may  know  and  be  sure  that  we  are  going 
to  Deptford,  I  left  themi  and  went  to  tbe  two 
boys. 

About  what  time  was  this? — It  was  about 
half  an  hour  after  nine  in  the  morning.  I 
went  with  the  boys  to  a  house  in  Little-  Britain ; 
there  I  waited  for  some  beer,  ood  bread  and 
cheese;  and  pulled  off  my  coat,  aud.6;iid,  I 
must  go  to  tile  Fence  to  get  some  njoney,  for 
tlie  woman  has  not  paid  me  all.  Then  I  left 
my  great-coat,  and  went  to  Berry  ;  and  told 
him  to  hasten  away,  for  the  bi>y3  wanted  la 
go.  Berry  hid  mc  return  to  them  directly, 
and  said,  he  ivould  be  over  the  water  time 
enongh  for  us.  1  went  to  the  hoys  again,  and 
called  for  anoiher  pot  of  beer,  to  delay  the 
time.  After  we  had  drank  that,  we  went  ont^ 
to  go  to  Deptford.  When  we  came  to  the  Bell 
in  the  Borough,  we  went  in  ;  and  in  the  right- 
hand  box  there  sat  Berry  and  Salmon  ;  there 
I  gave  the  boys  each  of  them  a  halfpenny- 
worth of  gin ;  1  was  not  to  take  notice  of 
Berry  or  Sahuou.  After  we  came  out,  Kelly 
said.  Damn  your  eyes,  there  is  that  old  thief* 
catching  son  of  a  bitch,  your  old  master*  Said 
J,  Never  mind  it,  I  don't  belong  to  him  now. 
Then  we  went  d<iwn  the  Borough  market; 
they  bought  a  breast  of  lamh  for  their  dinners, 
and  we  went  to  the  Black  Spread  Eagle  in 
Kent-street  (which  was  the  house  Ihe  prisoners 
and  1  had  appointed  for  them  to  come  to  the 
next  day).  We  had  the  lamb  fried  for  our 
dinners  ;  from  tlience  we  went  to  Deptlbrd. 

What  time  did  you  set  out  from  Kfnl-street? 

We  set  out  from  thence  about  h»lf  au  hour 
al^er  twelve  o'clock:  I  tiad  made  them  almost 
dronk.  After  we  went  from  tlience,  it  was  too 
soon  in  the  day  ;  we  could  do  nothing  till  it 
was  dark,  I  told  them,  so  we  would  go  over 
into  the  Belds,  and  i^o  lo  sleep  r  so  to  prolong 
the  time,  we  went  into  the  fields,  and  nil  lhi<?e 
of  us  went  to  sleep :  they  slept  pretty  heartily. 
When  I  thought  it  proper  timoto  awake  them, 
1  did  ;  and  away  we  went  for  Depll'ord. 

What  time  did  you  set  out  al\er  this  sleep  f 
—  \  cannot  te4l  Ihe  time. 

Was  it  dark  ?^No,  k  wss  ikK,     We  wer«  in 
3C 


755] 


27  GEORGE  IL 


Trial  ofM*Daniel  and  otkert. 


[756 


Drptfbrd  an  boar  before  dark.  I  weot  witb 
them  to  the  m^n  of  the  Ship,  the  bouse  that 
Berrv  and  Salmon  had  appointed  to  come  to. 
I  called  for  a^iot  of  beer  at  the  door,  and  bid 
them  stay  there ;  and  said,  I  had  a  relatioD  in 
the  town,  near  the  Water-  Gate,  which  I  wanted 
to  see:  I  left  them,  and  went  to  see  for  Berry 
and  Salmon.  I  found  Berry ;  he  and  I  went 
into  a  public  house,  I  think  it  is  the  Duke 
William's  Head ;  he  called  for  a  pint  of  beer, 
and  bid  me  relnrn  to  the  two  boys,  and  Salmon 
thould  come  to  the  house.  1  went  to  them 
(they  were  still  at  the  door) ;  I  said,  Come,  let 
us  go  into  the  house;  I  expect  my  cousin  to 
come  to  me. 

Had  you  let  the  boys  into  any  knowledge  of 
this  affair,  before  you  came  to  this  place  ? — No, 
I  did  not:  only  1  had  told  them  it  was  to  steal 
•ome  linen;  they  went  for  no  other  intent. 
Then  I  went  in,  and  called  for  a  pot  of  beer, 
and  bread  and  cheese ;  we  eat  the  bread  and 
cheese,  and  drank  the  beer ;  and  called  for  an- 
other pot  of  beer:  in  the  mean  time  iu  came 
Salmon.  He  first  went  and  leaned  against  a 
dresser  for  about  half  a  minute,  and  then  came 
and  sat  down  in  the  box  near  us,  and  began  to 
discourse  about  going  to  London  (it  was  then 
dusk).  1  saw  Berry  go  by  the  window ;  he 
beckoned  his  finger,  and  1  went  out  to  him. 
He  said.  Be  sure  follow  Salmon  when  becomes 
•ut.  I  went  in  again,  and  Salmon  presently 
went  out.  I  changed  half-a-crown,  and  asked 
the  lads  if  they  would  have  any  gin.  When 
Salmon  first  came  iu,  Kelly  said,  There  is  that 
old  btond  of  a  bitch,  the  breeches- maker  in 
Shoe-lane ;  his  son  and  I  have  been  picking  of 
pockets  together  many  a  time.  1  said.  Never 
mind  that ;  what  is  that  to  us  ?  1  knew  the 
place  where  he  was  to  stop  at ;  it  was  just  by 
the  four  mile- stone :  this  was  agreed  upon  be- 
fore. Tlie  two  boys  and  1  went  on  ;  and  by 
the  four  mile  stone,  by  a  gate,  Salmon  stood 
uiuking  believe  he  was  making  water.  Damn 
me,  said  Kelly,  there  is  the  old  breeches- 
maker  ;  he  is  suckey,  let's  scamp  him. 

What  reason  did  you  give  Kelly  and  Ellis  for 
your  going  after  Salmon? — 1  said,  we  will  take 
a  walk,  till  it  is  time  to  steal  the  linen. 

Was  it  light  or  dark? — The  moon  shone. 
Kelly  said,  when  he  came  up  to  Salmon,  God 
damn  >'ou,  what  have  you  gt>t  there?  Salmon 
aaid.  Gentlemen,  take  what  1  have  got,  don't 
use  nie  ill.  He  had  the  breeches  under  his 
arm,  and  he  gave  them  to  me ;  they  were  in  a 
blue  and  uliite  handkerchief,  and  I  gave  them 
lu  Ke!ly.  1  said  to  Kelly,  What  money  have 
}  ou  got  ?  Salmon  said,  Here,  gentlemen,  what 
uionty  1  have  got  is  in  my  left-hand  waistcoat 
|K>cket,  in  a  tobacco- box.  (He  had  told  me  be- 
fore what  money  he  had  cot  would  be  there.) 
Kelly  put  his  hand  into  his  pocket,  and  took 
Ike  tobacco-box  out,  and  a  cJasp- knife  and 
fork ;  then  away  we  walked  on  for  London, 
and  came  into  Kent-street  as  fast  as  we  could, 
and  lodged  tliere  ail  night,  at  a  house  where  1 
paid  the  lodging- money  at  going  down,  by 
Berry's  order,  to  induce  the  \»m  to  come  tliere 
agaia. 


What  time  did  voa  get  to  Kent-ifreet  after 
the  robbery?— I  beheve  we  got  there  about 
eleven  o'clock ;  the  people  bed  no  dock  in  the 
houae. 

What  money  did  you  lake  fitnn  SehiMB?— 
We  looked  at  tnat  coming  along ;  1  knew  whit 
waa  in  it  before :  there  were  two  ebilliiifii  and 
sixpence,  and  a  pockel-piece  with  SIdImni  •■ 
it,  or  some  such  name,  and  a  panobed  onrk 
in  the  middle  of  it.  [Mr.  Cos  prodoced  the 
things  mentioned].  ^ 

Court.  Look  at  this  tobacoo-boz.— fifaiL 
This  is  the  very  same,  it  is  riveted  within-ade; 
I  have  had  this  box  a  hundred  timea  m  Wf 
hand  before. 

N.  B.  The  box  waa  an  oval  iron  box,«il 
a  rose,  and  garter  round  that ;  and  a  Ikaoi 
unicorn  (as  on  the  king's-arms)  io  biHH^ 
lievo  on  the  lid. 

Court,  Look  at  this  pocket-pieoe. 

Blee.  This  is  the  same  piece  whicli  I  ■» 
tioned  before. 

Cotir^  Look  at  tl^e  two  pair  of  I 
handkerchief. 

BUe,   These  are  the  saou 
handkerchief. 

Court.  Look  at  this  knife. 

Blee.    It  is  the  same  knife. 

N.  B.  The  clasp-knife  and  fork 
to  fasten  together  in  the  handlei. 

What  was  done  the  next  moraing, 
you  lay  in  Kent- street.^ — We  got  op  tbe  isii 
morning  about  seven  o'clock,  anid  went  over  ikl 
way  to  the  sign  of  the  Black  Spread  Eagle  (Ihi . 
house  that  Berry  ordered  me  to  ga  to.)  1 
called  for  some  beer,  and  aaid  to  Kellj  ui 
Ellis,  Sit  down,  and  1  will  go  get  yon  soo^ 
thing  for  breakfast.  1  went  out  with  that  pit* 
tence,  and  went  to  the  White  Bear  in  tbessm 
street,  where  Berry  ordered  me  to  come  to  bt 
him  know.  There  sat  Berry,  Egan,  asl 
Salmon  at  the  door  on  the  bench.  Berry  sti^ 
That  son-of-a-wbore  M*Daniel  is  not  cone  jil; 
now  we  must  wait  for  him  :  go  you  back,  md 
Egan  shall  come  after  you  directly.  Egan  aii 
I  walked  up  the  street  a  little  way  together.  I 
said.  Stop  there  a  bit,  while  I  go  over  to  tbatslm 
to  buy  a  lamb's  liver  tor  breakfast;  beiaii 
he  would  go  on.  He  went  on  before,  sal 
called  for  a  pint  of  beer ;  1  came  after  witb  tbi 
liver.  I  said  to  Ellis  and  Kelly,  aa  1  was  gaiif 
to  cut  the  liver,  That  man  &ala  in  Rag'FW 
^meaning  Egan) ;  at  the  same  time  I  knew  bt 
aid  not :  but  1  was  to  say  so  when  be  came  ii> 
I  said,  May-be  he  will  buy  the  breecbsi; 
shall  I  ask  him  ?  Yes,  said  they,  with  all  ttf 
hearts.  I  saii!  to  him,  Master,  will  you  baf 
some  leather  breeches  ?  He  said,  Let  me  hMkil 
them  ;  if  you  and  1  can  agree,  1  will  boy  tbe* 
After  he  had  looked  at  them,  he  said,  WM 
will  you  have  for  them  ?  I  said  six  abillii|^ 
He  said,  1  will  give  you  five.  He  pot  bis  hii 
into  his  pocket,  and  gave  Kelly  a 
earnest ;  and  said,  he  had  not  ao  much 
about  him,  but  be  would  coma  inao  hav^ 


1t57] 


as  Aceeuaries  to  a  Felony  hejhre  the  Fact,  A.  D.  1755. 


[73S 


two,  and  ply  the  rest  of  ihe  money  ;   nod  he 
'  would  leare  the  breeches  m  our  care  tiU  he 
canie  back.      1  said.  My  friend,  will  ytm  eal  a 
,  bit  of  liver  sod  b&ciiu  be  tore  you  ^o  ?  He  said, 
I  doD*tcare  if  1  do*     Hesttt  down  bj  the  fire- 
side, aod  said,  Laud  lord,  let  us  have  a  baU'pen- 
tiy-worth  of  tobacco;  aud  said,  God  hless  me, 
,  ]  don't  know  what  1  ibalt  do  ;  I  have  lust  my 
^tobacco- box.     (This  he  wastoiay  to  |^et  tlie 
iDbftCco4M>x  of  tbem.)     1  saki  to  Kelly,   Lt?t 
us  sell  him  the  box,  may ^ be   he  will  buy  it. 
ICelly  saidf  No,  let  ui  diug^  it ;  it  is  such  a  re* 
tnftrkable  oae,  may-be  it  m^y  be  knowu. 
»     What  did  he  mean  by   diiigiDijr    itF — He 
^eant  to  fling  it  away ;    i  said.  No,  let  us  sell 
It:  then  Kelly  aaid,  Al aster,  1  will  «eJt  you  a 
tobacco- box»  if  you  will  buy  it:    sai<l  he^   l^t 
me  look  at  it  ^  he  looked  at  it,  and  a^kf^d,  what 
be  would  bare  for  it?    ^*^11y  ELsked  six-pence 
Ibf  it ;  he  said,  No»  be  would  util  ^ve  it.     I 
;d,  We  will  not  have  dry  money,  we  will 
bare  some  beer :    then  Egan  mid,  He  would 
pTe  a  full  pot  of  twopenny  for  it  ;  then  Kelly 
Mid,  be  should  have  it ;    aEt«^r  he  had  eat  hia 
ttreakfast^  he  went  out,  and  goe&  to  Berry  and 
lUmoD.     I  went  backwards  with  the  two  boys 
to  play  at  skittles  to  detain  them,  but  the  ground 
'as  so  wet  we  could  not  play  :    so  we  found 
mottier  pastime,  called  The  Devil  and  Taylors. 
t  kept  them   there  an  hour  and  hdlf ;  then  i 
'd,  If  the  man  does  not  come^  let  us  sell  the 
breeches,     i  said,  1  will  go  aud  be  shaved  ; 
^od  [  left  my  great-coat,  and  went  to  the  \\  bite 
Bear;  but  when  they  came  there,  they  did  not 
;e  the  people  or  the   house,  because   when 
•Daniel  came  they  did  not  like  him-     1  went 
of  the  house,  and  saw  Berry  come  out  of 
ftbe  Elephant  and  Castle;    they  beckoned  me 
over ;    1  went  and  called  for  a  pint  of  beer  ; 
perry  said  to  me.  You  may  drink  with  us ;  and 
said,  Oamu  y<m,  where  is  your  g-reat-coatf 
yhich  is  the  same  I  have  now.)  He  bid  me  turn 
aud  fetch  it,  and  said,  M'Daniel  and  Egan 
all  go. 

Who  were  there  ? — There  were  all  the  four 
prisoners  there,  sitting  in  the  box  going  in  on 
lie  leli-haud  si  tie,  drinking  :  I  went  back 
Igaio  to  Ellis  and  Kelly,  and  said.  The  barl>er 
busy,  and  caniiut  shave  me,  \  must  come 
aio  m  tive  or  six  minutes.  1  aaid.  The  wea« 
ler  is  colli,  I  must  put  my  great- coat  on;  \ 
"I  it  on,  and  went  to  the  Elephant  and  Castle 
them  again.  Berry  bid  me  go  to  the  BeU 
tbe  Borough,  and  stay  there  till  he  came, 
to  get  shaved.  I  went  away  ;  and,  as  1 
Iras  gomg,  £gan  aud  M^Oaoiefwent  out:  1 
,01  shaved,  and  went  to  the  Bell  in  the  Bo- 
,  and  called  for  a  pint  of  beer,  and  drank 
About  an  hour  after  Berry  came  in,  and 
had  another  pint  %  then  ne  and  I  went 
iome wards  together  i  we  went  as  fai'  as  Lud- 
.te-Hdl,  there  we  sa%v  one  Wr.  Rogers 
>ming  along  ;  so  he  said.  Leave  me,  donH  be 
rD  with  me  ;  and  1  left  him.  At  night, 
b^o  Berry  came  home,  I  said  to  him.  Master, 
|ka  fo  ^ood  as  to  lend  roe  some  money  to  ^o  to 
Hie  fiur  to-morrowr,    Ue  saidi  That  ia  nghti 


Uxbridge  fair  is  to-morrow,  the  31st ;  he  lent 
me  eighteen- pence,  sayinii;,  it  wast  to  go  to 
Billinifsgate  to  buy  shrimps  with  :  J  went  to 
the  fair,  and  came  liack  ng  un  on  the  1st  of 
August.  Berry  hid  me  not  be  afraid  ;  saying^ 
he  would  always  keep  a  gooil  ]ii'4  out  ;  and 
they  always  said,  U  I  was  taken  up,  Saliuoa 
shnuld  never  appear  against  me. 

You  say  you  went  to  the  White  Bear  in 
expectation  of  seeing-  the  prisoners,  and  after 
that  to  the  Elephant  and  Castle;  when  voa 
came  in  there,  what  did  yon  see? — ^1  saw  Mr. 
Berry,  Salmon,  and  Egan;  M* Daniel  was 
down  in  the  yard  at  my  tirst  going  in,  but  ha 
came  in  before  )  went  away. 

Recollect  voursell',  whether  you  saw  them 
eat  or  drink? — 1  drank  part  with  them,  but  I 
had  breaktitsted  beibre  1  got  there;  1  knoir 
Berry  told  me  they  had  a  rasber  of  bacoti  ; 
and  he  said  I  had  had  a  better  breakfast  than 
they. 

Where  did  he  tell  you  this  ?— He  told  me  so 
at  the  Bell  in  the  Borough, 

Was  you  at  the  trial  of  Kelly  and  Ellis  id 
Kent.^ — No,  I  was  not* 

Where  was  you  at  the  lime  of  the  trial  ? — I 
was  taken  up  on  the  Friday  before,  being  the 
8th  day  of  the  mouth. 

What  day  was  the  robbery  committed? — It 
w^<i  on  the  ^9ih  of  July. 

Cross-  examination. 

Y/lu  have  given  an  account  of  several  meet- 
ings and  conversations  you  Iwd  with  Kelly  and 
Ellis  before  the  robbery  was  committed  ;  wai 
not  the  couTertation  about  stealing  linen  ? — It 
was. 

W^as  there  any  mention  made  about  a  rob- 
bery on  the  highway  ? — No,  none;  I  said  what 
Berry  ordered  me  to  tell  them. 

Berrif.  You  say  Kelly  and  Ellis  went  with 
you  under  a  notion  of  stealing  of  liuen, 
and  Kelly  accidentally  pitched  on  Salmon, 
and  proposed  to  you  to  commit  a  robbery  on 
\m\if"-Bke,  No,  he  did  not  till  we  Just  got 
up  to  him;  then  he  said,  There  is  the  old 
breechi^s- maker,  let  us  scamp  him. 

Before  that  had  you  proposed  to  him  to  com- 
mit a  robl>ery  upon  Salmon  ? — ^No,  Sir. 

Whether  Mr.  Berry  hud  auy  convers^ition 
with  Kelly  or  Ellis  ? — No,  none  at  all ;  he  did 
not  chuse  to  be  seen  in  it. 

Nor  none  of  the  other  prisoners?-^ No,  tbey 
bad  not, 

M' Daniel,  Ue  menlione<l  that  he  had  been 
four  or  iive  times  up  in  Holborn  ;  I  never  waa 
there  with  him  in  my  life. 

Bite.  He  was  several  timet. 

3t Daniel.  He  mentions  he  was  at  the 
Plumb- tree  in  Shoe  lane ;  I  never  was  tbera 
with  him  in  my  life. 

BUe.  Yes,  he  was  several  times. 

Btrrjf,  What  lodging  did  you  lie  io  at  my 
house  ? — BUe.  Sometimes  in  Berry*s  hay- 
lott,  and  sometimes  in  the  room  adjoining  to 
bis  :  I  lav  in  that  room  till  ah  the  money  was 
gone  of  Riddeo's  reward,  then  I  was  forced  til 
Ue  iu  the  hay -to  A, 


769] 


27  GEORGE  II. 


Tria  ofM'Dmmd  awT^Mtrf, 


(TM 


Berry,  He  says  I  lent  him  one  sbilling  and 
•izpence  to  {[f6  to  Uxbridg^e  lair ;  what  time, 
was  that  P — Blee,  It  was  on  the  Tuesday-night 
the  day  after  the  rokl»ery  ;  Uzlnidge  fair  is  on 
the  Sl<9t 

Berry,  Uxbridge  fair  is  always  the  30th 
day  of  the  month. 

Blee.  That  is  Old  Stile. 

M^ Daniel,  Ask  him,  if  he  has  not  had  a 
quarrel  with  roe,  and  swore  he  would  be  re- 
venged on  me. — Blee.  No,  nerer ;  M'Daniel 
once  got  a  long  knife,  and  threatened  to  cut  my 
throat. 

Berry,  Becaase  I  took  his  brother,  that  was 
transported,  he  always  swore  he  would  be  re- 
lenged  of  me.— JB2ee.  I  never  swore  to;  he 
did  not  take  him. 

Salmon.  I  hare  never  been  at  the  Bell  in 
Holbom  these  five  years. 

Blee.  He  was  there,  as  I  have  mentioned. 

Egan.  I  want  to  know,  if  it  can  appear  by 
any  man  or  woman  that  I  have  been  in  a  house 
with  Blee  P— JB/ee.  There  are  several  will  prove 
that. 

George  EoUwright  sworn. 

G.  Holewright.  I  live  in  Scroop's- cmirt, 
facing  St.  Andrew's  church,  Holbom. 

Do  you  know  either  of  the  four  prisoners  at 
the  bar  ? — I  know  three  of  them. 

Which  are  ihey  ?— M^Daniel,  Salmon,  and 
Berry.    I  do  not  take  upon  me  to  know  Egan. 

Do  yon  know  Blee  the  evidence  P — I  do. 

How  came  you  to  know  M'Daniel  ? — I  have 
known  him  and  Berry  some  years ;  M<Daniel 
kept  the  sign  of  the  Angel  in  Scroop's-court. 

Where  did  he  lodge  about  Jul^  last  P — He 
and  his  wife  as  he  calTa  her,  came  into  my  house 
on  Ash- Wednesday  was  twelve- month.  He 
gave  me  a  crown  earnest,  and  they  continued 
there  about  four  months ;  he  lodged  there  till 
he  was  taken  up  at  Maidstone. 

Did  you  ever  see  the  evidence  Blee  coming 
to  him  amongst  the  rest  ? — ^Yes,  many  times ; 
he  was  a  very  handy  man  amongst  them,  and 
a  very  willing  fellow. 

Have  you  seen  him  often  with  M'Daniel  P — 
I  have  seen  them  together  many  times.  Blee 
used  to  come  there  to  wash  ttie  house,  and 
clean  the  dishes ;  and  he  used  to  come  often  to 
ask  for  his  master  Berry.  They  used  to  be 
generally  together. 

He  has  said^in  July  last  he  was  at  M*Daniel's 
lodgings  in  Scroop's-court;  do  you  recollect 
Tourself  thai  he  was  there  in  that  time  P — The 
last  time  1  saw  M*Daniel  was  on  the  Friday 
nit^ht;  and  on  the  Saturday,  the  day  after, 
he  was  gone  down  to  Maidstone ;  but  then  f 
thought  he  was  q^one  down  to  Coventry :  and  I 
saw  Blee  at  my  house  much  about  that  time. 
They  were  very  busy  together ;  but  I  never 
did  expect  to  be  called  upon  in  court  about 
these  tbiuffs,  and  have  made  no  account  of 
this  ;  1  cannot  be  exact  as  f  the  last  time  Blee 
wan  there. 

Was  you  ever  in  the  Artillery  gitwind  P— I 
WiS|  and  ftw  Blee  there^  nmniog  btekwvds 


and  forwards;  that  was,  I  remenbtr,  on  • 
Tuesday :  i  don't  know  in  what  NMWtb  ;  bat 
it  was  when  the  White  regiment  nMMdhed. 

In  what  manner  did  B&e  appear  there  P— 
I  think  he  had  a  great  coat  en  } 
wards  and  forwanis  ;    I.  eaki,  Tem,  y 
you  atP    He  said.  Hold  yoor  tonmej 
your  tongue ;  1  saw  him  erose  eeversa  4ki 

Did  you  see  either  of  the  prisonen  tlmef 
— I  did  net  see  any  of  them,  as  1  imanmikm* 

You  say  M*Daniel  went  down  to  jinidatone 
assizes ;  did  he  tdl  yon  he  was  geUig  tWieP 
— No,  he  never  mentioned  a  wwd  to  ow  ef 
that ;  he  said  be  had  taken  unma  ia  SmkkUi 
for  a  murder,  and  be  expeeted  t*  hKwm  f$m§^ 
ward ;  and  said,  he  afaoald  go  to  OeffwMry  Mt 
day  er  another. 

Did  you  knew  the  priaenera  at  the  birwi 
acquainted  together? — I  have  neen  M^kM 
and  Berry  together  especially,  Cktoon  Ai 
least:  I  have  seen  them  aR  toyelher,  eMifl 
Egan ;  him  I  never  saw,  te  my  k»OfvM|fa 

Have  you  seen  Blee  with  dbenP-*!  Um 
seen  him  with  all  three  of  them ;  he  wa»aMt 
of  a  runner  to  them,  as  1  thought. 

Did  they  appear  as  of  one  ooniMDj  tHNi 
you  have  seen  them  together? — ^verr  efka; 
and  if  any  thing  was  to  he  doDe,  wee  mi 
to  run  backwards  and  forwards;  end  Hm* 
was  whispering  together,  but  it  was  noduif  » 
me. 

Had  you  ever  an  opportunity  ef  hesffngdnr 
discourse  P— No,  1  never  had. 

Berry,  Where  have  you  seen  as  dradrim 
together?— lf:>torigA^.  At  M*Daniel*s, wta 
he  kept  the  Angel  in  Scroop's  conrt. 

How  long  is  that  ago  P— It  is  aboot  Ifs 
years  ago. 

Have  you  aeen  me  lately  P — I  have  seen  jti 
lately  at  the  Union  Arms  in  Union  oooit  I 
have  seen  them  all  three  there. 

How  long  is  that  ago  P— That  may  be  tbool 
seven  or  eight  months  ago. 

Berry.  We  have  been  in  gaol  seven  moethf> 
— Did  you  ever  see  me  up  at  your  house  when 
M*Daniel  Viwed?-^ Holewright.  No,  I  nefcr 
saw  you  within  my  door ;  I  have  seen  j«* 
about  the  door  in  the  court,  once,  twice,  ff 
three  times. 

Anne  Pattey  swonu 

A,  Pattey.  I  know  Egan  and  Sahnm.  I 
live  servant  at  the  Plumb-'free  in  Plumb-t^ 
court. 

Court.  Look  about  the  court;  doyoone 
them  f^A.  Pattey.   I  don't  see  them. 

Go  down,  and  look  about  till  vou  find  tbctf 
out.— Egan  is  lame  on  his  right  leg.  (Sbt 
goes  down  and  looks  at  Egan,  but  said  she  dii 
not  know  that  to  be  him.  N.  B.  He  is  a  Usi 
person.) 

Do  you  know  Blee  ?— I  think  I  do ;  be  wii 
once  at  our  house ;  he  came  and  had  two  Mf 
pints  of  beer,  my  master  drew  him  one,  aid  • 
another ;  he  stood  with  his  back  towaids  mi> 

DitI  vou  ever  see  Blee  and  Salmon  ^'^^tk^f 
—No,  I  cannot  aay  I  have. 


f6I  J  4ii  Acceatries  to  a  Felony  brfore  the  Fact*  A.  D.  1755. 


[7C8 


Jamei  Kirly  sworn. 
/.  Kirfy.     1  live  b  €r088-iireet,  flatlon 

Do  vt)ti  kn<iw  any  of  Ihe  priftonfM  at  the 
hfrf — t  iruow  lliree  uf  them,  Berry,  JM^Daoiel^ 
anil  Sfttmofl. 

Wbitre  bvve  yon  teeo  Ihem  ? — 1  ha?e  seeii 
Berry  moi)  ^Mlaniel  wt  the  Two  Brewers  on 
SttfTrtm^hill ;  on  the  8th  of  July  they  were 
drtakLni;  •!  ttie  door. 

Il>d  yoti  we  Buy  of  the  others  in  eompanj 
lafetfi«rf'-I  have  seen  M^Dnniel  nw\  Balmoo 
«l  Ili9  t/ttion-Arms  in  Union -court  drinking' 
iifalberi  I  beJieve  it  was  in  the  sacne  week^ 
■ij^te  n  day  or  two  after  the  other ;  they 
^PO»  iMiay  together  in  discourfte. 

Did  ytm  ever  see  Bice  in  company  with 
Hkinf' — Blee  came  in  that  evening  at  the 
0Mmi-^niis  just  as  Ha  I  mo  n  went  out,  and 
naytd  iliere  some  small  time ;  M^Daniel's  wife 
QdwiOf  and  they  settled  something  that  Bite 
kid  Mid  for  her. 

Did  yon  ever  see  them  together  atkr  that 
tflttaf— I  uw  M^Daoiel,  Berry,  anil  BJecsmok- 
lag  at  %hm  Union- Arms  iti  a  trifle  of  time  afler  ; 
OMT'-te  ibe  ne^rt  week  after  the  8lb  day  of 

rim  ftiiy  thin^  that  you  saw  pass,  do  you 
IImiiIc  Uiey  were  acquainted  together  ? — ^Tbey 
were  wery  well  acquainted  ;  Blee  appeared  to 
M  le  be  M^Danters  mitn. 

Hy  wkal  do  yim  think  he  was  M'Datiiers 
imaf — I  have  aeeo  him  come  aevcral  times  to 
iW  UoioD-At  iii(»  to  fetch  l>eer  for  hia  master. 

Did  be  use  to  appear  as  if  be  shared  oflen  ? 

\ff,  hia  heard  wat  very  long  moat  of  the 
'  I  knew  bim. 

rii^w  was  his  heard  at  that  time  you  saw 
Inn  last  at  the  Uniou-Arma  f — ft  was  very 
■^       I  that  time. 

yoo  ever  see  them  three  together  any 

\m  time  ? — No,  never  hut  once ;  but  I  have 

eo  two  of  them  together^  by  taru^i  several 

Did  yod  hear  of  SBlmon*^  bcmg  robtied  ? — 
■Va,  oat  a  word  of  it,  till  I  was  told  ot  it  by  the 
table. 
Stimon.  How  maity  times  have  you  seen  me 
the  Uriiou-ArtDtr— iCiVl;^.    1  saw  Balmon 
lOeinihe  kitclien  with  M'O^nieK  and  ano- 
tbtriimr  siuiog  at  the  door^  and  Blee  came 
feMIe  be   was   viith    MMIaniel  drink iofj^^  and 
tenh  away  in  a  great  hurry :    before 
,  they  had  got  three  doga,  and  were 
lag  abciftt  tt>eni ;  this  was  a  httle  aAer  the 
afjiily. 
Berry,     What  month  was  this  in  f — Kir  by 
hmw  tn  the  mmith  of  July. 
Wan  iiin  the  miitdtc  or  the  bcgiuuiog  of  the 
soth?^ — I  cannot  say  wnhin  a  foitnight. 
IV bit  atiinirTd  wai  Hlec  in  when  you  saw 
^IfcMsr^Ici  bis  uifual  apparel. 

.      Jarnn  I* ike  swuru* 

J.  Prif€*   1  know  John  Berry  ;   he  lived  In 
kiife^ymrd,  whci^  1  now  live*    1  have  seeo 


Bl*Daniel  frequently  with  him  there.     I  have 
also  seen  Ei^aD  with  him  there. 

Do  you  know  any  tbin<L^  of  Nalmon  ? — fS^l 
mou  came  into  the  yard  in  Augn^t  last,  ai» 
a&ked  me  if  I  had  seen  Berry  ;  I  directed  hii 
10  the  Hat  and  Tun,  where  I  had  seen  btm 

Do   you    know    Blee  ? — I    had   a  warrai 
airaittst  him  and  young  Berry*     Berry  kt 
Blee  from  me  in  his  house* 

At  what  time  was  thatf — ^1  believe  it 
about  a  year  a^o  ;  I  believe  J  had  tlie  warrant 

the  latter  port  of  February,  I  reri>einher 
alK)ut  the  beginning  of  Augu^st  1  saw  Berry^ 
M^Daniel,  and  Eifami  at  the  Two  Brewen,  at 
the  bottom  of  8alfron-htll. 

Have  you  often  seen  them  together  ? — f 
have  often  seen  M^ Daniel  and  Beny  tojrether. 

Did  they  seem  to  be  acquainted  ? — Thej 
ap]ieared  to  me  to  be  very  well  acquainted,  for 
they  were  almost  always  together. 

Btrrif,  How  many  times  may  you  have  seen 
IVl 'Daniel  and  I  together? — Frice,  I  believe  a 
hundred  times  and  more,  1  dare  swear ;  tbej 
were  seldom  evar  apart;  you  would  seldom 
see  one  without  the  other. 

How  long  had  you  a  warrant  in  your  banifi 
to  search  after  BleeF — I  believe  I' had  it  six 
months ;  I  could  not  get  at  him :  this  was 
about  the  time  that  Ridden  wa.^  taken  up,  and 
they  m&t.  alraid  of  bringing  the  affair  out. 

John  Sumtnt  sworn. 

X  Sammi,     I  know  Berry,  M'Danid, 
and  Salmon. 

Do  you  know  any  body  at  your  ltd 
— Yea,  that  is  Tom  Blee. 

Do    you  know  whether  any  of  them 
acquainted  together,  and  who? — I   have 
Berry,  M* Daniel,  and  Egao  together,  at  the 
George  on  Saffron*  hill. 

At  what  time  ?— For  these  two  years  past- 

When  was  the  fast  time? — I  cannot  say  ia 
particular ',  I  saw  them,  1  believe^  in  February 
or  April. 

Did  they  appear  to  be  tolerably  intimate  ? — 
Egan  bos  come  and  asked  me  many  a  time, 
whether  Berry  was  at  home. 

Did  you  ever  drink  with  them  ?— 1  have  two 
or  three  times ;  M'Daniel  hai;  come  and  asked 
roe  many  a  time,  whether  1  had  seen  Berry, 
(my  slabte  was  opposite  to  Berry's)  I  have  di- 
rected M*Danie1  where  to  Bod  him. 

Have  you  any  reason  to  think  they  were  ae- 
Quainted  with  Blee?— I  have;  Blee  lodgt-d  in 
Berry  *s  huui»e  ;  they  all  seemed  to  knoiv  Bfee. 
I  have  seen  Blee  with  ihem  all  together,  ex- 
cent  Halmon, 

\\here  have  you  seen  them? — lo  Georg«- 
yanl. 

When  have  you  seen  them  there  ?— I  t^noa/t 
say  the  times  ivhcn  ;  I  have  seen  them  divert 
times  together. 

What  were  they  doitig?— They  were  tall 
iiig  together. 

Berry,  Was  you  ever  up  ataira  to  my  bouse 
to  see  tvhat  beds  J  had  ? 

Smnm,  I  know  wy  locd  <J.Vii».\»^  VC^^  ^^ 


TO5] 


27  GEORGE  11. 


Trial  ofM^Damel  and  oiheri. 


[7M 


ways  went  op  stairs;  and  when  Berry  tamed 
hii  wife  out,  Blee  used  to  lie  there. 

Berry,  When  be  bad  neither  shoe  or  stock- 
ing to  his  foot,  was  be  fit  to.  lie  with  me? 

Samms.  I  know,  when  Berry  has  turned  his 
wife  out,  he  has  took  Blee  in,  and  locked  the 
door. 

Q.  to  Kirhy,  Look  at  this  tobacco-box;  did 

Jou  efer  see  this  before? — Kirlty.  Yes,  I  hare, 
am  pretty  sure  of  it. 

Whose  property  is  it? — I  think  it  belongs 
to  M 'Daniel;  1  remember  the  time  when  Su- 
non  and  he  were  drinking  at  the  Union-Arms 
together;  when  Salmon  was  gone,  there  was 
some  tobacco  left  upon  the  table ;  this  box  was 
taken  out  by  M'Dainiei  to  put  the  tobacco  in ; 
it  is  a  Terv  remarkable  one.  I  am  pretty  po- 
sttife  it  18  the  same. 

When  did  yon  see  it  ?— I  beliere  it  was  the 
Mune  week  the  8th  of  July  was  in. 

John  Brayder  sworn. 

Q.  Look  at  this  pocket-piece;  doTOu  know 
it? — Brayder.  (He  takes  it  in  his  hand.)  1 
sold  a  piece  once  pretty  much  like  this ;  there 
was  on  one  side  of  it  wrote  Shilling ;  but  there 
was  not  this  mark  on  it  when  f  sold  it  (mean- 
ing the  mark  which  Blee  said  Salmon  made 
in  the  middle). 

Do  yon  isfce  it  to  be  of  the  same  specie  of 
that  you  sold  ?— Yes,  it  was ;  there  was  the 
same  writing  on  one  side  of  it. 

Who  did  30U  sell  it  to  ?— I  sold  it  to  a  wo- 
man. 

Was  any  body  with  that  woman  when  she 
bought  it  ? — Yes,  one  Blee  was. 

Should  you  know  him  if  you  was  to  see  him 
again  ?^r  should. 

Court,  Turn  about,  and  see  if  you  can  find 
hifa,^ Bray der.  This  is  the  man  (pointing  to 
him). 

Q,  to  BUe,  Was  you  by  when  this  man 
sokl  such  a  pocket-piece  as  this?— B/^e.  I 
was  ;  he  sold  it  to  M'Daniel's  wife,  or  com- 
pany-keeper; she  gave  him  three-pence,  and 
a  halfpenny -worth  of  gin  for  it. 

Where  was  she  when  she  bought  it?— >It 
was  by  the  Two  Blue- Posts  in  Holbom,  in  the 
beginning  of  July. 

Q.  to  Brayder.  What  time  was  it  you  sold 
that  piece  you  mention? — Bratfder,  I  don't 
know  the  time,  but  1  believe  it  was  in  the 
cherrv  season. 

What  did  you  sell  it  for?— The  woman 
ffafe  me  three-pence  and  a  half-penny  dram 
for  it. 

Joteph  Cox  again. 

Com.  I  have  known  M'Daniel  two  or  three 
years ;  1  never  saw  the  other  till  I  saw  them 
all  together  at  Maidstone  assizes ;  I  went  down 
on  the  14th  of  August 

What  was  your  business  there  ? — I  am  chief 
•onsubleof  tlie  lower  half-hundred  of  Black- 
beath ;  and  I  had  an  information  about  the 
Srdy  or  the  beginning  of  Aagns^  that  a 
kKCchM-makor  had  been  robbed  m  the  iiviih 


of  Deptford,  where  I  live,  by  three  feotpaisi 
and  that  two  of  them  were  talcen  by  M'Daeiel 
and  others,  and  sent  to  MaidstODe  gaol ;  and 
the  third  person,  whose  name  was  Tboous 
Blee,  I  was  informed  kept  coopeny  with 
M'Daniel ;  and  after  two  or  three  da^s  seaidi* 
iog,  I  very  fortunately  took  that  third  penoe, 
with  the  help  of  a  constable  of  Greeawicfa,  oe 
Friday  the  9th  of  August,  in  Newgate-atnel» 
very  early  in  the  morning.  I  tOML  him  di« 
rectly  to  the  water-side,  in  order  to  cany  Mm 
to  Greenwich.  When  we  got  bioi  into  the 
boat,  he  said  he  would  discover  all  he  smU 
concerning  the  robbery  on  the  hreecha 
maker.  1  bid  bun  not  do  it  then,  baoHH 
of  the  watermen  in  the  boat,  till  we  drnwlia 
magistrate.  We  took  him  before  a  jiNlioiif 
peaoe ;  there  he  made  an  infornaatioa :  Hkk 
It.    (Produced  one.) 

Do  you  know  whose  writing  it  i8?-4li 
name  is  Thomas  Blee's  writing,  I  saw  !■ 
write  it;  the  other  is  justice  Bell's  wrilug. 

Was  it  read  over  to  him  before  he  sigaei  it? 
— He  read  it  over,  and  I  myself  reed  itofwii 
him  before  he  signed  it. 

When  was  it  Uken?— It  was  taken  m  Ihi 
9th  of  Angust,  but  not  sworn  to  till  the  15di; 
it  was  read  over  to  him  before  the  justiee;  aei 
the  justice  and  Blee  signed  it  in  my  presoiee. 

[It  is  read  to  this  purport:] 

The  Information  of  Thomas  Blee,  of  tk 
Parish  of  St.  Andrew,  Holbom,  Breeeh» 
maker,  taken  upon  oath,  &c. 

"  JTenf,  to  wit.  This  informant  sailb,  Tfat 
about  four  weeks  or  upwards  ago,  Stcpbca 
M'Daniel  and  John  Berry  desired  him  to  Isik 
out,  and  they  gave  him  money  to  that  uMiii 
to  get  into  company  with  two  lads,  or  ncs, 
which  he  should  allerwards  betray,  by  gsttiBf 
them  into  a  robbery,  and  they  share  the  re- 
ward given  upon  their  conviction ;  and  in  ords 
thereto,  they  did  go  frequently  with  the  in* 
formant  into  the  adjacent  fields,  but  could  ast 
meet  with  any.  And  this  de|ionent  saith,  tbst 
he  has  met  Stephen  M 'Daniel,  John  Benyi 
James  Salmon,  breeches-maker,  and  JaoMf 
Egan,  of  Drury  lane,  cordwainer,  in  order  to 
concert  and  put  this  their  said  scheme  isis 
execution  ;  and  that  he  the  said  deponent  iMt 
with  John  Ellis  and  Peter  Kelly  (now  priaooos 
in  the  county  gaol  at  Maidstone)  iu  the  Flccl- 
market,  and  as  he  knew  them  to  be  persooBof 
bad  life  and  conversation,  iiitroduG«i  hinsdf 
into  their  com|)any ;  aAer  treating  then,  b# 
asked  them  to  go  with  him  to  Deptlbnl  li 
steal  some  linen,  which  they  agreed  to  do  sa 
the  Thursday  following ;  but  after  that  pSi 
them  off  till  the  Nonda\'  following,  by  tbedh 
rection  of  the  said  M'Daniel,  Berry,  SalflNa, 
and  Effan,  who  had  all  at  different  times  sen 
the  said  Ellis  and  Kelly,  and  approved  of  thM 
for  that  purpose ;  and  judged  it  amt  fit  to  bsM 
the  robbery  committed  on  the  Mooday  msn- 
ing,  lest  they  should  be  detained  near  iioaiM 
on  the  Sondayi  and  some  drcaniBtaBocs  hV 


55}  at  Acceisanei  to  a  Felony  before  the  Fact,  A.  D.  1755. 


[7M 


Ivfid^r  their  schemes  abortive ;  and  that  they 
el  at  I  tic  Bell  in  Hmry  as  ihfty  went. 
'  Ami  tUi^  deponent  saiih,  That  it  had  been 
ccrteU  bi*tween  tliem,  ihat  the  intendal  rob- 
ry  should  lie  between  New- cross  turopikc 
nd  Deptford,  to  intide  tbem  to  the  reward  of- 
red  by  the  latd  parish  :  that  be  took  tbe  aaid 
His  and  Kelly  to  a  public- ho Ase^  known  by 
le  nlgn  of  the  8b  ip,  wliere  I  bey  had  promised 
oome  to  binn :  aud  after  filaying  there  some 
~  he  left  Ellis  and  KeLty  at  the  8bip,  aud 
out  to  look  for  Berry  and  Salmon  ;  he 
ill  Berry,  who  counselled  this  deponent  to 
turn  to  Ellis  and  Kellyi  and  said,  that  Salmon 
iOuld  ibllow  him  immediately ;  that  be  re- 
imned,  and  Salmon  did  come  into  the  house  at 
lie  fign  of  the  Ship,  and  stayed  there  near  an 
lOar.  During-  which  lime,  he,  ibis  deponenl, 
led  them  wiib  bread,  cheese,  beer  and  gin  ; 
id  Saloaon  g'oing  away  in  the  evening^,  tliey 
Hawed,  and  agreed  to  rob  him  in  the  first 
tolace  that  SSalmon  stopt  at,  which  whs  the  tour* 
ijle-stone»  under  a  pretence  to  urine,  but  ii 
ms  in  order  that  they  might  overtake  him, 
tat  being  tbouj^ht  tbe  most  convenient  place  ; 
Ibat  they  came  up  with  th«  aaid  Safmim  there : 
ftnd  this  informant,  without  bis,  or  either  of  the 
id  Ellis  and  Kelly  producing  any  weajvon, 
ICMk  from  under  the  said  Halmon^ii  arm  two 
T  of  leather  breeches,  which  had  been  pur* 
lety  marked,  particularly  on  ihe  waistband 
pocket ;  and  that  be  took  out  of  his  pocket  a 
Blaap  knife,  and  a  tobacco-box,  whith  tobacco - 
|k»x  was,  Ite  mys^  ArDaniers ;  hut  as  it  was  a 
barticular  and  very  remarkable  one,  he  k^nt  it 
f  the  said  Salmon  cm  Ibis  oec0»ton,  which  liad 
I  it  two  shillings  and  sixpence  in  t»iiver,  and  a 
Ifer  pocket-piece,  which  he  had  submitted 
himself  tamely  to  he  robbed  of;  and  after  I  hey 
ilftd  left  this  said  Salmon,  tbey  wi'Ptand  loilge^l 
in  Kent- street,  and  in  the  morning  be  took 
tbetn  to  tbe  Spread-Eag^le,  where  he  had  agreed 
with  the  taid  M*I>aniel,  Berry,  Salmon,  and 
Sgao,  to  take  them  ;  that  about  sevfn  in  the 
morning,  the  said  Egaii  es^me  in  accord tn<fly  ; 
mud  that  this  deponeat  told  the  said  Edis  and 
Kelly,  Egan  denlt  at  Rjg-Fair,  and  he  asked 
tbe  said  Egan  if  he  would  buy  the  said  leather 
.breeches,  and  he  agreed  to  ptiy  five  shillings 
^r  Lhem  ;  that  he  gave  them  a  shilling  in  part ; 
•fter  that  he  called  for  a  pipe  of  tobacco,  and 
paid  Ibat  he  had  lost  his  box,  with  intent  to  buy 
tbat  which  they  bad  taken  froju  Salmon ;  that 
lie  bought  it  of  Ihem  for  a  pot  of  twopenny ; 
u  he  went  out  to  get  the  remainder  of  the 
ney  for  the  said  breeches,  and  tveut  to  ano- 
Iber  ale* house  in  Kent-street  to  M^OanieK  who 
Immediately  went  with  Egan,  and  secured  the 
paid  Ellis  and  Kelly  with  all  the  things,  ex- 
'|>t  the  said  tobacco- box,  which  Egau  bad 
nrcbased  of  them,  as  he  believes.  And  this 
nent  farther  sailh,  that  lie  has  several 
me»  been  in  company  with  the  said  M'Dnniel, 
ry,  Salmon,  and  Egan,  and  ibe^'  ha?e  all 
verally  encouraged  liim,  and  said.  If  he 
ould  be  impeached,  they  uoubl  say  nothing 
[•gmifut  biEu;  aad  lliey  promised  to  share  the 
1 


reward  and  subscription- money  raised^  bciweea 

tbe  said  Berry,  Salmon,  M'^Daniel,  Egnu,  and 
this  deponent ;  and  that  this  wa^  contrived  (o 
convict  tbe  said  Ellis  and  Kelly  on  purpose 
to  get  the  reward. 

"  Sworn  before  nje,  — ^  Beix." 

Com.    Ab  soon  as  this  was  taken,  tbe  tanQe 

night  i  obtained  a  warrant  against  M^Daoieli 
another  against  Berry,  another  againsi  Salmon, 
and  another  against* Egan,  I  was  advised  to 
attend  the  trial  of  Elhs  and  Kelly,  and  not  to 
discover  that  I  had  Blee  in  custody  till  after 
the  trial ;  and  in  urder  that  he  did  uot  make  hia 
escape,  Thomas  Warren  went  dowu  to  aasiit 
me*  When  1  came  to  Maidstone,  I  informed 
myself  as  soon  us  I  could,  who  was  on  the 
back  of  the  bill  of  indiclmeni  of  Ellis  and 
Kelly*  Their  trial  came  on  the  15lh  of  August 
at  Dight :  1  came  into  court  very  soon  after  the 
trial  began  ;  Blee  was  then  in  my  custody,  but 
nobudy  knew  it  then  al  I^laidstoue  ;  he  was 
brought  down  in  the  night,  and  stopped  short 
of  the  town.  When  I  came  in,  I  heard  Sal- 
naon  ^ivtug  evidence  against  Ellis  and  Kelly  ; 
he  said,  that  he  went  in  at  the  Ship  at  Dept- 
ford,  and  liad  a  pint  of  beer  i  that  he  saw  three 
men  drinking  in  a  bnx,  and  Ellis  and  Kelty, 
the  then  two  iirisoncrs  at  the  bar,  were  two  of 
tbe  three  persun!i,  and  tbe  other  was  a  carroly- 
bearded  fellow  ;  that  aAer  he  had  drank  his 
pint  of  beer,  iu  the  dusk  of  the  evening  be  went 
out,  in  order  to  go  home  t+j  London  ;  aud  hav* 
ing  got  as  far  as  the  four  mde  stone,  opposite 
to  which,  at  a  gale,  he  stopped  to  make  water, 
ill  ihe  mean  time  the  three  men  came  up,  and 
one  of  them  damned  htm,  and  asked,  where  he 
^vas  going  ?  He  said,  he  desired  him  not  to 
Bwear,  and  said  he  waa  going  to  London ;  upoh 
that  one  ot  the  no,  the  cjirroty- bearded  fellow, 
snatched  the  buodle  from  under  his  arm,  and 
punched  him  on  the  breast.  The  judge  was 
pleased  to  ask  him,  if  it  was  light  enough  to 
see  their  laces,  and  wbeiher  he  was  sure  the 
prisoners  were  two  of  tlie  men  ?  Yes,  he  said, 
it  was  light  euou;;h  to  see  tlielr  faces,  and  he 
ivas  sure  they  were  two  of  the  people  that 
robbed  him.  Then  he  went  on,  and  «iid,  that 
Kelly,  one  of  the  pvisoners  at  the  bar,  drew  a 
knife,  and  said.  Damn  him,  let  us  search  hioi ; 
and  took  out  of  Ins  pocket  an  iron  tobacco-boiTp 
in  which  was  a  guinea  m  gold,  two  shillings 
and  sixpence  in  silver,  and  a  tiitver  pocket- 
piece,  and  likewise  a  clssp  knife  and  fork  out 
of  bi^  pocket:  he  said,  the  bundle  contained 
two  pair  of  leather  breeches  marked  with  J.  8. 
and  a  figure  of  4  under  the  right  |K>cktt ;  aud 
that  the  handkerchief  had  an  udet-hnle  at  each 
corner;  and  all  lh4ise  goods  were  produced  io 
court,  and  be  looked  at  ibem,  and  said,  they 
were  the  goods  he  was  robbud  of,  and  that  they 
were  his  properly. 

Are  these  p  roil  need  here  the  samcF — These 
are  the  scime  good*» ;  they  were  delivered  into 
ray  care,  and  nave  been  ever  since.  The  judge 
was  pleased  to  ask  turn,  how  he  koew  the 
pocket-piece  f  He  md,  by  a  particular  mark 


767] 


27  GEORGE  11, 


Trial  ofM'Daniel  and  othtrtp 


[768 


it  had  ID  the  middle.  His  lordit1ii|»  was  plea^<i 
to  ask  iQ  «ee  it,  and  it  wns  ilt^Urtfred  to  bim  Liy 
ib«  constable  of  Greeo^vich. 

Court^  Look  at  that  (lOcket-piece  and  to* 
ba ceo  box. 

Co^,  1  am  surf!  they  are  the  very  tame 
Ihini^ci  lip"«^i»ire  lit*  wa«  rolib<»d  of.  I  asked 
tliejudj^e  Mrliat  lie  wjis  iilenMed  to  have  done 
with  lli4^  tliiiit^g  p  His  lortlsLiip  bid  me  t^ke  care 
of  iheiD  till  the  |)ennn9  were  irieU.  He  was 
pleased  to  aJtk  tbe  |irtsimfit»,  if  tbey  ^ootd  ask 
balrii«in  uny  qiiesititineiP  Kelly  desired  SuUimu 
mt;(l<t  Kc  ajiked,  wlietlit-r  he  saw  liim  draw  a 
knitef  8aliiiim  aiid,  Ye^,  you  did  draw  a 
knife;  but  !  mipijose  vou  will  ileny  all  tbe  rest 
preseulty.  Kidly  said«  That  cannot  be,  be* 
cause  he  lud  never  a  knife.  There  waa  one 
circiinist^ni'e  ^lucU  I  had  furrr'ot;  when  llie 
jud^i'  bail  asked  liiui,  if  it  was  li{;lit  enough  to 
see  their  faces,  he  jiU*i  asked  bitn,  if  he  could 
know  tb«?  carrnty  l)earded  mat),  and  if  he  had 
ever  seen  him  hetbre  ?  He  aaid,  No,  be  bad 
aot»  lo  btM  kiiovv  ted|>e. 

Did  yon  see  eirher  of  the  other  prisODera 
there? — 1  saw  HF Daniel,  Salmon,  and  Egan. 

Did  they  all  give  evidence ? — They  did. 

Betrjf.  Did  you  see  iiic  in  court  f—Cox.  I 
did  not ;  I  saw  liim  at  Maidstone  in  ibe  time 
of  the  issizes.  After  Kajtiion  had  done,  E^an 
was  tbe  next  evidence:  he  said,  he  dealt  in 
old  clothes;  that  mi  the  30th  of  July  be  went 
into  Kent-itreet  to  the  Lock- bospital,  to  see  if 
they  bad  any  old  cloibes  lo  sell  ;  but  they  not 
bein^  u{if  he  went  into  tbe  Bbck  Spread- Eagle 
tn  get  him  a  pint  of  beer;  thai  he  observed 
three  men  ^ittin)^  in  a  box  drinking,  and  as  he 
was  tellingf  tbe  landlady  bis  busiucs^^j  one  of 
them,  a  carrotv- bearded  felloir,  not  taken,  (for 
they  did  noi  know  he  was  taken  then)  asked 
him,  if  he  would  buy  two  pair  of  breeches  f 
he  said.  Yea,  if  ihey  could  asjree  for  Ibe  price  ; 
aod  that  they  tlid  agree  for  live  sbilbnga  ;  and 
that  he  gave  lielly  one  shilling'  earnest  to  bind 
the  bar^atO;  till  bis  uil'e  should  ctime  with  more 
money,  or  somethioj^  of  ibat  sort  *,  and  be  was 
asking  tbe  landlady  for  a  half- penny  worth  of 
tobacco;  and  as  be  was  saying'  be  had  Inst  his 
iobacco-boXf  one  of  the  men  oHered  to  sell  biin 
one  (i  have  forgot  which  of  the  prisoners  lie 
said  that  was).  He  said,  be  bought  it  ofbim 
for  a  poi  of  two  penny  (indeed  ibey  sell  no 
other  liquor  at  thai  botij^e)  :  he  said,  as  be  was 
looking  ill  Ibe  breeches,  he  knew  them  to  be 
Simon's  properly,  hating  beard  lbat8almoii 
waa  robbed  over-uigbt;  and  after  some  ^me  lie 
went  ou I,  under  pret€»nce  to  get  the  rest  of  the 
money,  but  meeting  with  3Ir.  M*Danitl,  an 
acquaintance  of  bis,  and  knowing  bini  to  bo  an 
ofiicer,  be  told  him  tbe  story,  and  M* Daniel 
said,  he  need  not  give  himself  the  trouble  to 
look  for  an  officer,  i'or  be  could  do  as  well  us 
a  coQ&itable ;  and  so  he  returned  back  with 
hitn,  and  took  Ellis  and  Kelly  at  the  Black 
%read- Eagle  ;  and  upon  searching  Ihera,  took 
out  of  Kelly  *i  pocket  a  silver  pocket- piece, 
the  sanae  tikat  was  then  produced,  and  a  sbiJ- 
ling,   and   a   claspkoiie.      The  judge  was 


El  eased  to  ask  bim^  how  he  koew  the  hrrrrhii  J 
e*f<»nged  to  Salmon  ?  He  laid,  by  a  partU 
mark  ibry  had.  He  was  aake'^ 
the  mark  ?  He  said,  be  had  i> 
of  him  for  himself,  and,  1  think.  Ins  »on,  IM 
years»  and  knew  his  mark  paMirtilarly  w«Q*l 
The  judge  a^ikeil  the  prisoners,  if  they  waul^j 
a^k  ibtit  witne!is  any  questions  f  And  Ke!l|J 
desired  he  might  be  a^ked,  if  the 
bearded  man  and  he  did  not  wiok  aA  ei 
hef  >re  he  offered  lo  «*ll  hira  the  hreecb««f 
Cgau  ttlso  said,  what  gave  him  the 
suspicion  that  the  breeches  were  slolro  iii%J 
liecause  he  had  seen  one  of  the  two  [ 
ducked  for  pickiug  of  pockets  lu  the  Arttfltry*! 
ground*  M 'Daniel  wa^  the-  next  witac^r 
he  said,  he  met  E^an,  ao  acquaintance  of  ] 
and  Egan  knowing  him  to  he  an  offio 
hiru  tbe  story  ;  and  he  went  with  bim  \ 
Ellis  and  Jkelly;  and  upon  aearcbing 
he  found  upon  him  a  silvi^r  pocl^t-pMikl 
tbe  same  that  is  now  [iroduced  ia  court,  a  Ai*  ( 
ling,  and  a  clasp-knife  (t  suppose  the  fork  nilJ 
then  lost).  He  said,  that  was  ail  Ite  hid  1 
only  there  was  a  drummer  in  tbe  i 
be  was  taken,  whom  he  ordered  lo 
which  he  did« 

Did  he  say  aov  thing  about  the  toliacco«| 
I  don't  remember  that  he  did.  Tbe  i 
the  people  were  called  ioto  court  to  gif« 
dence,  1  had  fixeil  my  eye  preUy  steadily « 
iVlr.  Berry,  whom  I  asked  to  go* with  nt  ' 
drink  a  glass  uf  wine,  (he  was  in  the  4 
court)  which  he  did,  and  1  secured  bicn  itll 
Bell ;  then  1  went  to  secure  the  others  t 
iug  to  ray  warrants.  As  soon  as  they  bad  | 
their  evidence  the  cryer  ordered  them  lo| 
We  secured  them*  Upon  searchiog  N*i 
1  found  this  knife  upon  him  [Produced  ii 
a  singular  toug-shealhed  knife  of  tbe  T 
sort];  I  wae»  told  of  it  before.  As  8<MHi  1 
were  secured,  1  was  forced  to  get  leate  t»j 
them  in  the  mayor's  gaol.  I  asked  8aliiioa  i 
particular,  if  he  knew  one  Thoma*  Bice?  I 
did,  as  he  had  done  before  in  court,  My  1 
knew  no  such  man.  1  said  to  bim,  1  am  t 
you  must  know  him ;  he  as  positiv^y  de 
again  :  the  next  day  when  he  wus  carri 
fore  the  justices,  (I  believe  there  were  30 
of  tbein)  Blee  was  brought  face  to  fWcc  to  1 
he  looked  at  him,  and  ibeu  decloj^ed  he 
saw  thai  man  in  bis  life  before.  I 
M'Daniel  thai  night,  if  he  knew  Tom 
He  denied  be  knew  any  such  person.  1  i 
Egan  the  same,  and  he  as  positively  deni«d  J 
aii  the  rest,  at  the  time  Berry  was  m  coitad^ 
at  ihi]  BclL  I  rcraemher,  as  we  were  ^ 
along  to  the  Bell  to  drink  a  glass  of  wia«»  1 
ask^  me  what  f  thought  would  be  tbe  &1il 
Ellis  and  Kelly,  aod  who  was  to  pay  tbe  i 
pence  of  the  prosec^utioo,  for  tiwasva 
siderable  ;  upon  that  1  could  oot  be)j^  ( 
ing,  that  if  ibey  were  convicted,  tbcM 
be  sufhcieut  to  p:iy  tlie  expence  very  I 
somely  ;  and  if  they  ivtre  acquiued,  tbe  f 
oulors,  I  said,  I  believed  must  bear  tbe  ei* 
pence  themselves ;  be  said  he  kawr  lliil,  mi 


BlesM 


ttOM0f*l 


769  j  as  Accessariet  to  a  Felony  before  the  FacK  A.  D.  17 5S* 


far  tbul  rea:4on  if  ihis  affair  was  well  orer  he 
tiever  wouhl  \ie  conierned  ag^ain  i  by  ibat  time 
►%re  bdii  (fot  lo  I  be  Bell  ibe  ilistMyurse  dro|»jjpd, 
jinil  I  took  bitn  in  cui^lody.  Wbeti  I  had  «e- 
Curetl  the  oilitrs  in  the  mayor's  gaol,  I  went 
pind  tetchefi  Berry  ham  tiie  Bell ;  afier  i  had 
fCoi  iiiin  into  that  gfaol^  I  askc'd  him,  it  be  knew 
^om  Bteef  He  said,  he  did  not  know  any 
ffucb  penion.  I  {lut  lb  em  in  separate  rooms 
Uiat  night,  and  sx^t  a  man  iu  each  room  with 
feijem.  The  next  day,  M^ben  Berry  hud  been 
carried  liefure  the  justice  and  was  commltled, 
lie  and  I  walked  together  from  the  Bell  to  the 
^ol ;  in  g:(Mn>:'  along  be  said,  he  hoped  the 

KolleiDen  wtiutd  not  admit  IVrDaDiel  an  evj- 
oce,  (lor  at  that  time  it  was  t bought  he 
Would  ^et  to  be  an  evidence)  because  he  bad 
jMv^  himself  once  before  by  the  same  means  ; 
but  said  be,  If  the  j^enilemeri  will  admit  me  an 
Ktidence,  I  can  da  for  M'Dbmiel  and  another 
nnaD,  (whom  he  iisimed)  that  is  not  in  L^ustady  ; 
^vbom  I  know  not  whether  1  should  name. 
Court.  Name  thai  p«r^n« 
Coir.  It  is  Haljih  AlilcbeL  I  asked  him,  if 
be  wuuld  tell  me  any  particular  that  be  wtmld 
|lett|re  anrainst  bun  }  He  naid,  he  cinild  write 
D  me  in  a  fe^  tlny^  ;  hut  be  nert>r  did.  As  to 
^l-'DdnieK  ibe  next  morning  after  be  wa<t  oppre- 
beaded^  be  desired  to  speak  with  me  in  the  nmm 
^bere  be  was  confined  ;  I  l<Kik  Mr.  W.inen, 
of  the  constables  of  Greenwich,  wiili  me, 
^d  went  10  him.  He  said,  be  Imd  rather 
i|>eak  tome  by  myself;  with  that  Mr  Warren 
Itilhdrew  :  be  there  cried  a  ^uod  deal,  and 
b^KTtf^^'  of  me  In  lie  his  friend,  and  ^pI  bun 
onimitted  forlailherexaniinalion  ;  fur  he  said 
,C  ct»idd  make  a  very  giea!  disrovHiy  relalin-f 
>  the  pub  iL',  and  Cunid  put  500 f!  iittr*  my 
ket.  I  told  him  1  wonid  aecj. taint  the  t^en- 
en  with  wbdl  be  said.  Aceoidinyly  I  did, 
use  I  my  endeavour  lo  prevent  bis  being 
committed  tor  flintier  exHmitiuiiun  j  he  wan 
|Aer'««r«iai'iiriiiiiitted  iipou  the  warrant. 

Btrry.   Did  you  6ee  me  any  way  busy  about 
leafTiir? 

Cor.    Berry   kept   M  Daniel,  Siilmon«  and 
Kigali  company  ;  and  becauau  it  wo^  to  be  my 
lac**  to  lake  tliem.  I  kept  company  with  tbeni 
M  fiutr  fur  l\%o  biMir^. 
Bet  rtf.  Wa^  ]  busy  in  preferring  the  bill? 
Co^.  *l  d<m-l  know  that  be  «a». 
Merry     Was    I   n«it  Mtiing    in   Nisi   Priua 
art  tu^ffe  the  trials  there  ? 
Cor.    Yes,  he  was.     When   E  talked  with 
y   a  tier  wards,  he  denied  ktiowing   Blee, 
id  pretended  to  be  a  stranger  itiiheni  all ;  and 
Id,  be  came  down  into  that  couulry  aliout 
Aa  for  EgaD«  be  tleoied  be  knew  Blet-, 
ever  saw  Berry.    Some  lime  after,  I  bad 
me  talk  with  him  aijain  ;    iben  be  declared 
never  9aw  Berry  in  hii^  life  till  he  saw  him 
the  GravfMTTMl  iHml. 

Q.  Can  ytiu  recollect  whether  there  were 
ly  eoqiiity  made  by  the  j'^dge,  whether  they 
lew  one  unitther  upon  theii  oaths? 
Cos,   Th*-re  waa  aoibiug  said  of  that  sort, 
\t0km%  I  remember. 
VOL,  XDt, 


Hickf 
leme 


M'DmnieL  Whether  or  no  I  did  not  go  to 
'squire  Bell,  to  charge  Blee  with  a  robbery 
after  be  was  takeu  } 

Cc>x.  I  know  but  little  of  that ;  but  here  wUt 
be  an  evidence  that  can  gi?e  ft  very  goo4  tp* 
count  of  that. 

Elixaheih  Pragncll  sworn. 

Eiizahtih  Pragndl.  I  hve  at  the  Ship  in 
the  Broad -Way,  Westminster,  I  remember 
leeing  Blee  at  onrbou^e  on  the  29ib  of  July  in 
the  evcniDgf  in  company  with  two  laiU,  each  of 
them  dressed  in  hEue^ao<l- white  stri[ied  waist- 
coats very  dirty  ;  and  I  saw  those  two  lads  t»l 
onr  bouse  the  next  day,  being  the  30lh  ;  I  have 
heard  sim  e  one  was  named  Kelly,  tbe  other 
Elli^.  Ou  the  20tb,  in  tbe  erening-,  they  came 
and  sat  down  at  the  door,  and  called  lor  a  pint 
of  beer;  J  believe  I  bey  were  there  the  test 
part  of  ati  hour.  The  efldeoce  Blee  enquired 
for  somebody,  1  don't  know  ivho  it  was.  He 
went  out,  and  caioe  in  uguin  in  a  little  mure 
than  half  an  noun  Then  the  tv>o  lad^  said  lo 
him,  Will  you  pay  for  this  pint  of  beer  f  He 
said,  Vcs,  come  in,  ami  we  will  have  a  pot  of 
beer  ;  then  thi'V  coiuie  in,  ami  called  for  a  (lotof 
heer ;  on«  of  ibem  went  over  ilie  way  to  a 
}»hDp  for  ftome  bread  and  cheese  ;  be  bronobt 
some  in,  and  they  eat  it;  they  stayed,  1  be- 
lieve, abiHit  an  hour  and  haltf  and  went  away 
when  it  was  dark.  Halmon  also  came  in,  wiln 
a  bundle  ondcr  liiti  arm  in  a  bandkercbiefi 
wht  n  they  were  there  ;  be  called  for  a  pint  of 
be«^r,  arut  pifched  himself  uj^^ainst  the  dresser^ 
facing  (hem,  and  Inisked  at  them,  then  went 
11  till  sat  down  in  a  box  with  bis  hack  toward 
Miem:  he  went  out  a  little  helbre  tbem  ;  1  re* 
nieDib«*r  Blee  went  out  two  or  ihree  timefl» 

WiiJit  liquor  had  Biee  and  the  lad«i? — E, 
Pragncti,  They  had  two  pots  and  a  dram ;  1 
caoiioi  *ay  nhpiher  it  was  a  qoartern  or  not  : 
Blee  cbaiige^J  balf-a'Crown,  and  paid  for  the 
liquor.  Ou  the  forenoon  tbe  next  day,  the  two 
tails  that  wire  with  Blee  were  brought  in  again 
tiy  a  cunstahle,  and  a  drun\mer,  named  Cor- 
nackf  to  a^sisjt  him.  The  man  that  I  took  to 
be  the  constable,  which  was  M 'Daniel,  called 
for  a  pint  of  beer ;  he  asked  me.  whether  I 
knew  them  two  bfiys  to  have  been  there  over^ 
night  ?  1  said,  Yes.  Then  be  asked  uie  if  L 
knew  that  man  at  tbe  door  P  i  said,  Yes  ;  he 
had  a  pint  of  beer  at  my  houw  the  last  nigbl, 
(lltat  was  Salmon). 

Did  be  mention  S.ilmoii-s  aamCf  or  say  Ut 
knew  him  ? — No,  be  did  not* 

Jamts  Cornackvwora, 

ComacL  I  am  a  drummer  ;  I  wa«  q«W- 
tered  at  the  Black  Spreail  EagJe  in  Keol- 
street.  On  tbe  dOtb  of  Julylostf  I  came  down 
stairs  bet weeo  eight  and  uine  in  the  murnitig; 
f  observed  three  men  sitting  togetlier  In  a  box, 
one  of  them  had  a  carroty  beard,  which  wai 
Blee ;  they  bad  had  6ome  victuals^  and  there 
was  some  drink  before  them. 

Court,  l«o<^k  about,  and  see  if  you  letf  Bles 
here. 

3D 


771] 


S7  GEORGE  IL 


Trial  qfHi'Damel  and  aOen, 


[TO 


Comack.  There  he  stands  (pointing to  him) ; 
his  beard  is  now  much  about  the  len^h  it  was 
then,  (it  might  be  six  weelcs  gfrowth)  the  other 
two  were  the  two  prisoners  that  were  cast  at 
Maidstone.  Blee  said,  I  think  1  will  go  oat 
and  t^t  shaved  ;  he  went  out.  In  about  ei^t 
or  ten  minutes  ifter  that,  in  came  M*Daniel, 
with  a  darkish  coloured  coat  on  ;  he  laid  hold 
of  Rellv,  and  said,  Come  out,  you  blackguard 
dog.  I  said.  What  makes  you  abuse  the  lad 
in  this  manner  ?  He  said,  Damn  him,  1  hafe 
got  a  warrant  against  him,  I  am  an  officer ; 
they  have  robbed  a  roan  just  against  the  four 
inile  stone  near  Deptford  ;  I  desire  you  would 
aid  and  assist  me.  I  said,  If  that  is  the  case,  I 
will.  He  took  a  piece  of  rope  out  of  his  pocket, 
and  tied  them  together.  Now  said  he,  I  will 
take  care  of  them  ;  do  you  step  down  to  the 
Elephant  and  Castle,  you  will  see  two  men,  one 
in  a  light  surtout  coat,  and  his  own  curled  hair ; 
1  will  pay  yon  for  your  trouble.  I  went  there ; 
there  sat  Berry  the  prisoner,  and  Salmon  was 
coming  in  from  making  water.  I  said  to 
Salmon,  I  beliere  yon  are  the  gentleman  that  1 
trant;  there  is  a  gentleman  at  my  qnarters 
that  wants  to  speak  with  you :  Berry  said,  Go 
mlon^  with  him.  fSalmon  went  with  me; 
commg  alooflf  the  street,  I  said,  What  is  the 
matter  ?  What  has  happened  f  Said  he,  I  hap- 
pened to  be  at  Deptfoitl-yard  last  night,  and 
had  taken  some  money,  and  had  some  breeches 
with  me;  there  were  three  chaps  stoiit  me, 
mnd  robbed  me  of  a  guinea  in  gold,  lialf-a- 
crown  in  si1?er,  a  tobacco-box,  and  two  pair  of 
leather  breeches  tied  up  in  a  handkerchief; 
and  if  the  breeches  are  mine,  they  are  marked 
with  J.  S.  and  a  figureof  4  on  the  right  pocket ; 
ajid  the  handkerchief  has  an  oilet-hole  at  each 
corner.  We  went  in  ;  there  stood  the  bun- 
dle un  the  table,  and  Egan  sitting  in  a  box 
opposite  the  lads.  M* Daniel  asked  Egan, 
what  he  had  in  that  handkerchief?  He  answer- 
ed, it  was  no  business  of  his,  for  the  handker- 
chief and  the  things  in  it  were  his ;  for  he  had 
bought  them  of  the  lads.  I  made  him  open 
the  handkerchief,  we  found  it  marked  at  each 
corner  as  Salmon  had  suid,  and  the  breeches 
J.  S.  4.  M^Daniel  searched  Kelly,  and  1  saw 
him  take  a  chisp- knife  out  of  his  pocket,  a 
thilliog  and  a  silver  pocket-piece  ;  he  gave  him 
the  shilling  back  again,  and  said  the  pocket- 
piece  was  marked  in  the  middle,  and  shcweil  it 
me,  and  desired  nie  not  to  be  mealy-mouthed 
when  I  came  before  the  justice ;  this  he  said 
once  or  twice.  They  tied  the  things  all  up  in 
a  handkerchief,  and  we  »et  out  with  them  to  a 
justice  of  the  peace  at  Green\%ich. 

Did  you  see  e?er  a  tobacco- box  P^-No,  I 
did  not. 

Court,  Look  at  this  pocket-piece. 

Comack.  i  think  this  is  the  same  ;  it  has 
much  the  same  mark ;  it  is  hard  for  me  to 
Bwear  it,  but  I  believe  it  is  the  same.  Going 
along,  M 'Daniel  said  to  the  lads,  You  ha?e 
made  a  good  hand  of  it,  if  yon  hare  spent  the 
guinea  already ;  the  lads  said,  they  Defer  took 
a  guijie»  from  iun.    H'Daoiel  taid  to  ow, 


I  has  got  money  in  hkitaokiiif, 

keep  It,  poor  thmga,  they'll  wait 

Kd  tbem  sadly  to  oonfina  the  rob- 


One  of  them 
but  let  them 

it;    he  wanted  tbem  sadly  -  

bery,  and  told  them,  if  they  would  not,  thof 
would  certainly  be  banged. 

What  were  his  words,  aa  near  aa  yoa  em 
recollect  ? — He  said,  Yoa  dogs,  i  wouM  bait 
you  confess  when  yoa  coma  befbre  the  jn 
It  will  be  the  better  for  you ;  and  tall  oe  i 
the  other  fellow  is  gone  to:  tbay  aaidy 


«a2 


could  not  tell  any  thing  aboat  it,  aad 
give  him  no  answer :  they  said  to  him  ikm 
wanted  to  go  to  aeme  Bridewell,  which  I  m 
not  know.  He  said  to  them,  if  fk^  wwM 
confess,  he  would  do  all  in  hii  power  nr  Ifcoi^ 
and  he  would  untie  them  when  they  cameiito 
Deptford,  and  they  shoald  go  by  water.  W§ 
came  to  the  Five  Bells  at  the  end  of  IMM 
road,  there  M«Daniel  called  fsr  a  pint  ofWl 
the  peo(4e  bioaght  the  hecr  oat  M*]m 
asked  the  lads,  if  that  wat  the  home  thaj  M 
been  drinking  at  the  night  before  f  Theyaii 
No,  but  they  had  been  drinking  at  the  ■!■« 
the  Ship;  we  drank  the  hecr,  and  then  MtNl 
agahi :  £gan  and  Salmon  followed  at  a  dbi 
tance.  Wiien  we  came  to  Dmtford,  M'T 
took  the  lads  in,  and  desired  Egan  and  f 


to  stay  at  the  door ;  he  ealled  for  a  pint  eThMr. 

How  came  Egan  to  follow  youf— 1  dnft 
know ;  he  came  from  my  quartein* 

Did  M'Daniel  charge  him  to  aasist  f— Nsia 
word  as  I  heard.  When  he  and  Salmon  nm 
at  the  door,  M«Daoiel  asked  the  landlady  if  ihl 
•aw  ihem  kids  there  the  niglit  hefoief  fti 
said.  Yes,  they  were  there  the  night  beta 
and  had  some  bread  and  cheeae ;  then  ha  rnd 
to  her.  Did  you  aee  that  man  that  la  now  at  tin 
doorf  (meaning  Salmon)  She  aaid,  Yo^  kl 
was  bene  at  the  same  time,  and  they  went  td 
about  ten  or  twelve  minutes  diatanoe  ens  if 
another.  Said  M'Daniel  to  me, Take  ootictif 
what  this  lamllady  says,  and  don't  be  mcalj^ 
mouthed  when  yon  oome  befbre  the  jostioa 
Then  we  set  out  and  went  to  Greenwich ;  as! 
ill  the  clerk's  office  they  wanted  M*Danicla 
be  bound  orer  to  prosecute ;  M^Daniel  said  kt 
conid  not,  for  he  had  a  bit  of  an  esUte  left  bin 
in  the  country,  and  he  could  not  be  there  at  thi 
time  of  the  assizes ;  then  the  justice's  dek 
was  pleased  to  bind  me  over.  We  stayed  it 
Greenwich  and  had  some  beer,  and  were  prettf 
merry  till  almost  nine  at  night ;  coming  bsaa 
all  together,  they  let  me  ami  Egan  go  bcfbffi 
Egan  swore  by  the  great  God  and  the  swfd 
Jesus,  he  would  not  appear  against  them  at  iki 
assizes.  Said  I,  You  are  bound  orer  as  well  tf 
I,  and  I  cannot  see  you  can  be  off  from  ffoiif 
down.  He  said,  O!  by  Jasus,  it  Is  only  chuf 
inir  my  parish ;  it  has  cost  me  three  sbilliif 
to-day,  and  the  breeches  may  go  to  the  de4 
for  I  will  never  appear  against  then.  Wf 
parted  abdut  ten  that  night ;  I  went  It  9J 
quarters ;  M 'Daniel  told  me  lo  come  tohf 
house  in  Union-oourt.  I  went  in  about  a  wv 
afler,  but  could  not  hear  of  aoeh  a  pcrsst{< 
went  10  the  UnioD-Arma,  and  fbnnd  the  hw* 
k)rd  knew  somelhiog  of  hiiDi  and  i  kmi  to 


TT3] 


as  Acceaaries  to  a  felmy  before  the  Fad,  A*  D,  1755. 


lived  in  Scroop'a-court ;  1  went  aod  asked 
there  for  btm,  but  iierer  conid  End  faitn  ■! 
Iiome,  allhou^b  1  went  there  Ihree  ur  four 
iinMi  ;  his  woman  alwa^'i  told  me  be  was 
gone  into  the  country,  1  saw  bim  once>  but 
that  wais  by  mere  oliance ;  lie  was  then  dodg- 
ing lAe,  or  somebody  else»  at  ibe  end  of  Par* 
liameat-strer^t 

Was  voti  at  the  assizer  at  Maidstone  ? — I 
vat ;  wben  1  cHine  there,  1  could  not  lind  any 
of  (hem ;  they  kept  out  of  my  sight,  I  ima- 
gftned,  for  fear  I  should  come  in  far  part  of  the 
reward.  At  Istt  I  happened  to  meet  Eg^an  in 
ibe  street:  I  said,  What,  have  jou  done  the 
thiog^?  ([  meantf  found  the  bill :)  he  Baid^  No, 
we  aball  not  do  it  Ibis  day  or  two  •  thinks  1, 
,1*11  watch  v^U'  I  did,  and  by  and  bye  came 
feialraou  and  M 'Daniel,  and,  1  Uiiiik.  Eg^an,  and 
one  8e  recant,  a  conEtabte  ;  tbry  a  nil  i  weut  iiiio 
the  clerk's  oiBce  Ui  get  the  bill  of  indictment 
dfrawn,  Berry  did  not  go  in^  I  followed  I  hem. 
When  they  came  in,  me  cferk  said,  Ave  you 
all  here  ?  Yes,  aaid  M^Danie],  we  are  all  here. 
Said  the  clerk.  There  are  n\x  of  you.  There 
are  but  lire  of  ns,  said  M^DanteK  Said  the 
-clerk,  Is  tbere  not  a  drummer?  Ob!  ^id 
,ll*Daniel,  I  hud  forsjot  bim.  After  «e  bad 
prepared  tbe  bill  of  indictment,  I  went  to  the 
Cock  at  31aidi>toiie,  there  sat  Berry  ;  I  ditl  not 
tvcollect  him  at  that  time  ^  stiid  be,  How  do 
yea  do,  drummer?  I  said,  Yuu  have  the  ad* 
vanta^  of  me,  I  cannot  say  I  know  you.  No, 
f^  said  be,  doiiH  you  know  tbiu  muruin^  when 
you  went  to  the  Ekphnnt  and  Castle  in  Kent, 
ptreet  for  Salmon  ?  Thf  u  1  mnl,  I  btlievp  you 
are  the  gemleman  that  sat  ibere  in  ibe  Ihk. 
Ye««  said  be,  I  am :  tlien  be  asked  me,  what  I 
thouQ'bt  of  thoiit^  ludfi,  wdl  tlivy  be  convicted? 
1  »aid,  El  ajipfdrs  very  plain  ai^ainst  tbem. 
^hea.  be  siaid.  If  they  are  noi,  I  must  ciilier 
ban^  my  bre»d,  or  gu  upon  the  highway  myself. 

Berry.  Were  tliert*  atiy  company  by  at  this 
liliieP — Cornack.  Nn,  there  were  not ;  Berry 
Waa  sitting  i»y  bitnseil,  he  i^enerally  was  by 
lliriiaelf,  exce|il  be  was  with  his  companions. 

Are  you  c-^riuin  he  said  the«e  wordi  lo  you 
at  that 'lime  ? — t  am  positive  of  it  be  did. 

AInry  Hustey  swora, 

Husiey,  1  live  at  the  Elephant  and  Castle  in 
Kem  ^in-el,  I  nm  servant  there;  my  miatrcss's 
IMUDe  is  JcineHmitb.  There  came  three  men 
into  our  hoii»e,  and  after  that  came  in  M*Da- 
tkiel  I  tbey  bail  a  rasher  of  li>acon  for  breakfast. 
I  don*t  kno»  (he  others*  facrs. 

Wbeu  was  tbui  ? — It  was  in  tbe  last  summer 
lime. 

Thomas  Strgani  sworn. 
»  T*  Sergant.  (He  is  Rliewn  tbe  tobacco-box.) 
I  lieve  seen  such  a  one ;  I  mtide  a  rentarli 
iliit  tbe  unicornis  ho«  n  was  broke  off*  tbe  In«, 
^hen  M'Duntel  Kbe^Ltl  it  mc  akive  a  year 
,a^o  ;  iliia  I  gee  it  broke  as  ih»t  was.  Hia  box 
fcas  been  bent  to  iny  bouse  many  a  time,  to  be 
filled  with  tobacco  ;  it  i&  near  a  year  ago  «iii>ce 
1  f»w  it }  Ibis  is  bke  it,  but  i  (;aDi»«»t  liil  tbM 
ii  it. 


Mow  came  M*  Daniel  to  shew  it  you? — He 
iliewed  it  me  as  a  piece  of  curiosity  ;  aayinr 
Here  is  au  old  thing-,  a  curious  thin^',  I  said| 
It  la  not  perfect  naw,  here  wants  the  bora  te 

tbe  Qoicoro. 

Henry  Sergant  sworn, 

IJ,  Scrgant,  I  know  all  the  pris<>oerf  teiy 
well ;  I  \va8  at  tbe  taking^  tbem  all  at  jy  aidstODie 
aosizes  las»t. 

Court.  Give  an  account  what  you  know  of 
them. — Serg^nt,  M'i>0Diel  said  I  was  a  youujf 
constable,  and  I  should  have  my  abnte  of  the 
reward  ;  he  should  take  tbe  money,  and  be 
would  see  me  paid. 

"^Vhat  reward  did  be  mean  I — ^The  suliscrip- 
lion -money  uf  our  itarisb,  for  (he  two  lads  that 
were  tried,  John  Ellis  and  Peter  Kelly  ;  I  car- 
ried them  down. 

Did  you  produce  these  ffoods  there  ? — I  did. 

Where  bad  you  them?— I  bad  tbera  of  jua- 
lice  Bf  llj  who  sent  for  me,  I  being  a  constable. 

What  passeil  when  he  itaid,  Yon  area  yonog 
constable  ? — The  prisoner  Berry  said,  Wt  ^bBJl 
have  a  good  supper  if  tbe  priioners  are  con- 
victed ;  and  if  tbey  were  not,  be  thought  be 
must  beg  bis  way  borne.  An  J  was  goin^^ 
along  ttie  road  with  Elll«  and  Kelly  to  Maid- 
^oue,  Ihey  totd  me  there  was  one  Tum  Blee 
concerned  with  ibem  in  tbe  robbery ;  and  also 
where  be  liied,  and  what  sort  of  clothes  he 
wore.  1  took  it  down  in  writmir;  tbejoilit^ 
de^rei}  me  to  go  and  take  hini ;  I  said,  I  would 
^ive  directions  to  a  thief  catcher,  which  I  did 
to  Ralph  Mtirhel  ^  bui  be  refused  to  act  in  ii. 

Wasynu  npon  tbe  trial  ?^\  was. 

Was  Silinoo  a  witness? — He  was;  tie 
swore  he  lo«t  these  tiling.  Also  Egau  end 
flkI'Daniel  were  bothe\«mlned  u|Kkn  iL 

Merry.  Did  you  see  mo  concern  myself  il 
alt  in  the  affiiir,  or  was  1  upon  Ibe  back  of'  the 
bilil" — H.  Sergatit,  No,  be  was  not  oiiibe  back 
of  ibe  bill ;  be  had  no  bu&iness  there,  if  be 
could  have  trusted  bis  friends  with  tlie  money. 
I  beard  Brl*  Daniel  and  bim  both  savi  tt^^JT 
wouhl  sbarr  ibe  reward. 

Berry.  Did  not  you  aee  me  sitting  at  the 
Cuck  all  the  while  ?^H.Sergant,  No,  be  waik* 
ed  abaiit  with  us. 

Q.  to  BUe.  You  say  Berry  gave  you  a 
crown,  wbitt  money  wits  it? — Biee.  He  gave 
roe  a  half  crown  and  two  shilliniTi  and  six* 
pence  thai  day  I  went  with  Ibe  ieda  lo  DepI* 
ford. 

Berry's  Defehci. 

Berry.  On  the  25tb  of  July  I  was  net  ef 

town  all  day»  and  returned  tbe  Suoday  follow- 
ing; and  !»t»\ed  )it  home  alt  day  ibe  Sunday 
BU^e  lelh  you  be  whs  with  me,  and  i  gave  him 
a  cruwn.  if  your  lordabip  will  indulge  me  to 
put  it  ntf  till  next  sessions,  then  1  can  linng 
wiiufsseit  lo  prove  be  falsely  eeevaea  me,  1 
Wfut  out  cm  tbe  5th  of  August  to  Bromley 
fair  ;  I  f^aw  Blee  with  a  leddk:  un  his  Ip^ck  ;  be 
is  a  piltieiiu;^  aotrt  of  a  telluw,  1  went  and 
took  tim  ky  the  ooikr,  aad  nid,  I  wouU 


776] 


27  GEORGE  U. 


Trial  qfM^Danid  and  dken. 


im 


chastise  bim ;  he  said,  Mr.  Bemr,  1  can  tell 
you  a  ereat  dcAl,  if  you  will  not  hurt  me.  I 
■aid.  If  you  can  tell  me  a  f^rel  deal,  tell  me 
where  my  goods  are.  I  beard  oo  the  ISih  of 
August  that  he  was  taken  op  at  Greenwich ; 
I  went  there,  and  took  M'Daoiel  ofer  there,  to 
see  if  be  was  taken,  on  purpi»se  to  have  charg- 
ed bim  with  my  snoods.  My  son  is  gone,  be 
has  pushed  him  away,  and  1  hare  nerer  seen 
him  since,  and  they  would  nefer  tfif e  me  any 
answer  that  they  had  irot  him.  I  asked  Mr. 
Sergant,  if  he  had  got  him  ?  he  would  not  tell 
me.  They  never  took  bim  to  gife  any  evi- 
dence before  the  justice.  People  may  1(0  a- 
tbieving  for  erer,  if  they  may  get  off  m  this 
fashion. 

M'Daniel's  Defence. 

M^DanieL  I  was  called  out  about  the  SOth 
of  July  to  go  over  to  tbe  King's-bench  ;  I  met 
this  man  £}(an  :  he  desired  me  to  go  and  take 
a  coujile  of  tbieves  in  Kent>street ;  I  said. 
What  have  they  done?  he  said,  I  believe  tbey 
have  broke  open  some  house,  and  stole  these 
things,  i  went  with  him  to  tbe  Elephant  and 
Castie  in  Kent-street,  and  stayed  there  some 
time,  till  we  sent  for  Mr.  Salmon ;  and  when 
he  came,  Egan  came  witb  bim  to  me.  1  said. 
Is  the  man  come?  He  said.  Yes  ;  then  I  went 
with  Egan  to  the  Black  Spread  Eagle ;  there 
were  these  two  men  sitting  ;  one  of  them  said, 
1  believe  1  have  done  now.  I  turned  bim  about, 
And  searched  him,  and  took  these  breeches 
from  under  their  arses,  and  also  from  one  1 
took  tliis  nocket-piece.  After  this  I  said  to 
Salmon,  The  only  way  to  save  expence  is  to 
examine  them  before  colonel  Bell.  In  carrying 
of  them  down,  tbe  least  of  tbe  two  said,  1  wish 
I  could  be  admitted  an  evidence,  I  would  be 
glad ;  I  said.  You  dog,  where  is  the  rest  of 
you?  where  is  the  other  fellow,  what  is  his 
name?  This  lord  Blee  lived  along  witb  me 
six  or  seven  months,  I  never  knew  his  name  ; 
when  be  told  me  my  lord,  I  guessed  directly  ; 
one  of  them  wanted  to  be  adiiiilted  an  evidence 
before  justice  Bell,  and  be  would  notadmiteither 
of  them.  After  that  1  heard  my  loni  iv»s  taken, 
1  goes  down  to  Greenwich, aucTw-nt  to  Mitchel 
at  Deptford  ;  aiul  said,  Here,  Cox  has  taken 
the  other  fellow,  Ralph,  will  you  come  up,  and 
see  if  be  has  got  him  ?  He  was  afrai<i  of  be- 
ing taken  upon  some  warrants,  and  would  not 
go;  so  I  went  to  the  colonel  myself,  the  clerk 
was  thf^re,  and  he  was  very  ill ;  he  said  to  roe, 
Mr.  M'Duuiel,  be  is  not  taken,  if  he  was,  he 
would  be  brought  to  me.  After  that  1  stopped 
a  man  that  lud  murdered  another  at  Coventry ; 
I  brought  him  to  iiicks's-ball,  the  justices  com- 
mitted him  to  New  Prison.  The  gentlemen 
told  me,  I  must  go  down  to  Coventry  along 
with  him,  1  went  down  to  Maidstone ;  there  1 
said  I  could  say  nothing  to  the  robbery :  the 
drummer  could  say  as  much  as  I  could  as  to 
tbe  pocket- piece  and  tabacco-l>ox.  As  Go<l 
Almighty  is  in  heaven,  1  know  no  more  of 
Ihem  than  your  lordship  there ;  I  have  taken 
•  great  manj  thieveti  and  hiTe  vsotiued  mj 


life,  and  been  shot  at  by  tfaem.  I  ne? cr  hai 
my  name  brought  in  question ;  I  have  beta 
Ottered  money  to  let  pnsooers  so,  but  I  acvcr 
would  do  it:  I  coukl  have  had  thmaean 
pounds  to  have  done  it. 

Salmon's  DBrxNCB. 

Salmon,  That  fellow  that  swore  I  had  hcoi 
at  tbe  Bell  in  company  with  him  has  swsci 
false ;  I  neyer  was  in  company  with  bin  la 
the  whole  course  of  my  lile,  nor  I  have  sil 
been  in  that  alehouse  these  fiveyeanu 
Eoan's  Defence* 

Egan.  Please  to  ask  where  tha  Bell  k?  I 
do  not  know  where  it  is;  1  have  no  kn 
of  that  man  in  the  worhl  (looking 
Blee).  ^ 

Q,  to  Berry.  Have  you  any  evideneestial 
to  yonr  character  ?—JBfrry.  Call  Henry  W» 
rincrton.     THe  was  called,  but  did  not  appsK| 

berry.  1  lived  seventeen  ^ears  in  the  jat 
where  this  man  lives,  that  is,  JaoMS  Rnet; 
will  you  please  to  call  him  P 

Frice.  1  have  known  Berry,  I  beliefs^  fin 
years. 

Couwt.  He  calls  upon  you  for  a  cbarads ; 
what  character  can  you  give  him  P— Pricfe  A 
very  bad  one,  my  lord. 

Berry.  Please  to  ask  him,  what  ha  caa  «[ 
as  a  Slain  upon  my  character  ? — Priof.  It  «3 
hurt  you  if  you  insist  upon  it. 

Q.  to  M  Daniel.  Wdl  you  call  any  vit- 
nessesP— M*D<im>/.  There  is  a  man  tbatlMf 
known  me  these  nine  or  tiu  years,  and  tbill 
have  the  best  i>f  characters ;  that  is  Mr.  Hil^ 
Wright. 

Court,  Do  you  chuse  he  should  be  i 
ed  to  your  character  ? — M' Daniel.  Yes. 

G.  Holeicright.  I  belie\e  I  have  k 
M'Daniel  eiglit  or  nine  years,  or  longer;  kt 
never  did  me  any  injury  in  bis  lite- time:  M 
as  for  the  rest  of  it,  I  believe  be  is  bud  eoosgk 

Q  to  Salimm.  Have  you  any  witnesses  H 
call  :-^Salmon.  No,  my  lord  ;  i  have  airt  \d 
time  to  send  for  any. 

Q.  to  Egan.  Have  you  any  witnesses  to ctU? 
— Egan.  No  my  lord ;  none  of  my  acqoaiit- 
ance  know  that  1  am  in  trouble. 

The  Jury  found  them  all  fonr  Guilty  ^ 
all  the  facts  charged  against  them  is  tbi 
indict nif'ut;  but  whether  tbe  facts  chaifc' 
were  uiiliin  tbe  statutes  of  tbe  4th  and  5tliif 
Philip  and  Mary,  and  the  3il  and  4ih  of  Wl* 
liam  and  Mary,  they  knew  not* :  and  there* 

*  4  and  5  Phil,  and  Mar.  c.  4,  which  isyib 
Every  person  that  shall  malisiously  oomnasi 
hire,  or  counsel,  any  person  or  persons  toooff* 
nut  or  do  any  robbery  in  or  near  any  higfavsy 
in  this  realm  of  England,  and  be  thereoiffli** 
victed,  shall  not  have  the  benefit  of  derff> 

3  and  4  Wil.  and  Mar.  c.  9.  That  aU  m 
every  person  and  persons  tiMt  shall  os»M 
aid,  abet,  assist,  connsel,  lure,  or  <    ^ 
any  person  to  rob  another^  sbiJl  bt 
froan  the  benefit  of  thoclaigy. 


uries  ia  n  Felony  hefatt  the  Fact. 

the   twisUtnoe    of   Uie    Court. 
Itie  fottowiiiif  Special  Verdict  was 


A.D.  1755, 


[778 


the  recorif  of  tlie   cnDTJctioii  of 
'mn«l  Jriliii  EWmprvut, 
111.  \\iAi  Ih^fore  tbc  commiuinis^  the 
^  It'DilaiiU,  MM }aiiteU Berry « 

li      '  >    1  lyjan)  ami  Saliiion,  and  Tho- 
fc,  did  mttlioi»ii«lyt  &u<l  feloniously, 
[ioientioii  to  procure  themselves  lUe 
yiowed  by  ttie  stutute  for  lite  Appre- 
■fTobbervon  tbe  Ui^tiWHy,  and  toma 
WardA  ofTei'^d  by  the  iQiuhiiunts  of 
i  of  Gfeenwicbf  and  olher  arljoining 
\mli  met  ai  the  Bell  Inn  iu  Bolboro, 
Do;  and  thai  they  all  aifrecd  Blee 
pcure  two  perious  to  coniniit  a  rob- 
I  the  highway   upon  the  defenrtant 
klmon,   in  the  pariah  of  8t.   Frtu), 
I   in   Kept,   whtch  i9  an  adjoining 
[the  said  parish  of  Greeowich  ;  and 
l|iurpose  did  maliciously  and  feloui- 
btrire  and  a^ree,  thai  the  said  Blee 
pfurDi  such  persons,  that   the  said 
bid  assist  them  to  steal  aome  Uneo 
i  parish  of  8t.  Paul,  Deptford. 
be  said  Blee,  in  pursuance  of  the 
Dent,  and  with  the  privity  of  the 
da.nts,  did  engroge  and  procurer  the 
Kelly  and  J  olio  Ktlts,  in  the  said 
ht  uamed,  to  ^o  with  him  tii  Dept- 
al  hnen,  but  did  not  at  that  tinae 
aid    Kelly  and  Ellis,  or  either  of 
the  said  intended  robhrry  on  SaU 
at  any  oilier  time  lielore  the  said 
vaa  committed ;  and  in  consctiuence 
vreernent,  and  tvith  the  privity  of  all 
^fendanis,  the  said  £llis  and  K^tiy 
%  the  said  Blee  to  Depllbrd. 
bal  the  »4tid  Blee,  Bibs,  ami  Kelly, 
iDeptturd  aforesaid,  and  the  said  Sal- 
then  and  there  waiting  iu  the 
t«y,  in  pursuance  of  the  a^^ree- 
they,  the  said  Blee,  Ellii, 
did  all  feloniously  asiault  the  said 
'and  did  take  frooi  his  person   the 
ationed  in  the  indictment^  oo 
Ellis  and  Kelly  were  to  coo- 
id. 
6nd,  that  none  of  the  said'defendanta 
m)  muy  conversation    with    the  said 
4  fillis,  or  either  of  theirii  before  the 
bery  was  committed :   but  we  6nd, 
ire  the  said  robl»ery  Has  committed, 
1  M'Duiiel,   £|e:an»  and   Berry,  saw 
Krity  and  Ellis,  and  told  the  said 
It  they  would  do  very  well  for  the 
of  robbing  the  said  Salraon  as  atbre- 
|t  whether  tlii;  d«!fettdatitf,  or  any  of 
r«  ffudty  of  feloniuusiy  and  malici- 
Nufoftiug^,  atddit^,  abt'tliiiff,  aisisting, 
liog,  hirin^r,  itr  -■  f-Tv^fing  the  said 
l»d  Etlii^,  or  cji  I  ri,  t4i  commit 

DV  and  rubbiif^  ..L  .^  uientioQed,  or 
UM  aiul  detendanii,  or  any  of  ihem, 
^4f  fclMiOQaly  and  nialictously  roov- 
kCiriDg,  AbcltiDg,  or  couuseUiog  the 


*  suid  Kelly  and  Ellis,  or  either  of  them  to 

*  commit    the   said    felviny    and    roliherv.   ia 

*  m«inn«fr  ami  finwi  ati  ai  me  *rcnnd  count  of 
^  the  Mid  indjciuu'iii  t»  ci^r^^'d  H^Minst  them, 
(  we  know  not,  and  pray  tb«>'  advii!*^  of  ibe 
*'  Court.  And  if  the  Cniirt  is  id  opintuit  ibej 
^  are  (guilty,  we  are  of  opiuii^n  tbei  uif  un  Ity  ; 

*  but  if  tlie  Court  are  of  opiniun  ihitt  i*>ty  art 
*Dot  guilty,  tbeo  we  ar«  of  opinion  ihey  am^ 

*  not  guilty. 


*  RicuARD  HcAvirsipes, 

*  Gam.  Cjaroner, 

*  Nathaniel  Norton, 

*  Samuel  Ne^bit, 

*  EllENEZBR  GaRONCR; 

*  John  PapERxoN, 


Hand.  Bayleyi. 
John  Keen, 
ilc^RY  Kmght, 
Wiluam  Basson, 
John  BuEwtif, 

JOUN  I^ICIOOW/ 


Trinity  Vacutionf  23  Geo.  11. 

June  19,  1755. 

At  Serjeant's- Inn-hall,  in  Chancery  hne,  be- 
fore all  iht'  Judi^es.  Tba  Special  Verdict 
ari^ued.^  The  Kingf  against  M'Daoiet, 
Berry,  £gao,  and  Kalmou. 

Case. 

Peter  Kelly  and  John  Ellis  were  indtcted 
for  a  robbery  oo  the  highway,  committed  near 
Df^pifurd,  in  Kent,  on  James  Salmon  ;  on  which 
iiidjciment  they  were  tried,  and  were  capitally 
convicted. 

The  defendants  were  indicteil  as  accessariea 
before  the  tact,  to  ibe  robbery  committed  bj 
Kelly  and  Ellis. 

The  jud|^e9  at  the  Old- Bailey  directed  a  spe- 
cial verdict  to  be  found  on  the  laat-mentioned 
iudictmeut* 

W  hinh  verdict  first  (indi  the  record  of  the 
conviction  of  Kelly  and  ElUs  front. 

italso  Ands,  ' That thu defendants,  IVrDanref, 

*  Berry,  Kgan,  and  Salmon,  together  with  on© 

*  Blee,  with  an  intention  to  procure  to  them* 
^  si4ves  the  common  reward  given  by  act  of 

*  parliament,  and  an  adilitional  reward  offered 
«  by  the  parishes  of  Greenwich  and  Depttbnf, 

*  for  apprehending  highway  *tnen,  met  together 

*  at  the  Bell  in  HoJboio  ;  and  there  ihcy 
^  agreed,  that  Blee  should  procure  two  persona 

<  to  rob,  and  that  he  should  inform  them  that 

*  he  would  assist  them  in  stealing  some  tmeii 

*  in  the  parish  of  Deplford,* 

It  fiads  also,  *  That  Blee  did  procure  afod 

*  engaife,  with  the  privity  of  the  defendants, 
« the  said  Kelly  anil  Ellis  to  steal  the  said 
'  linen;  bui  ihat  he  did  not  BCf|uaiut  them  of 
^  any  intentions  to  rob  Halmon.' 

It  finds  also,    *■  That  the  defendants  never 

*  had  any  conversation  with  Ellis  and  Kelly  be- 

*  fore  the  commitment  of  the  robliery  ;  but  that 

*  the  delendaattt  e^aw  them,  nnd  SAid  they  would 

<  do:  ami  if,  u|>ou  this  case,  the  judges  shall 

*  be  of  fipinioo  ihey  are  so,  then  the  jury  find 

*  them  so,  &c.' 

*  Theie  notes  were  commotucated  by  a  gto^ 
Uemati  of  ibe  Temple, 


7T9] 


27  GEORGE  11. 


Triai  c/M'Damd  and  dheri^ 


[TU 


Mr.  Hume  CammheU,  I  Imve  the  honour  to 
atteud  your  lordships  on  this  very  solema  oe** 
oasioo,  as  counsel  on  the  part  of  the  crowo) 
agaiost  the  defendantf ,  M'Daniel,  fierry,  £pui> 
aod  SalmoD ;  and  as  Ibis  is  a  case  which  eon- 
ceros  the  lives  of  four  unhappy  snbjecta,  and 
the  public  safetv  in  general,  1  hope  I  shall  be 
excused,  if  I  observe  a  minuteness  somewhat 
aingular  before  this  assembly. 

That  I  may  observe  some  degree  of  method, 
I  shall  consider  the  charge  against  the  defen- 
dants under  two  heads : 

I.  Whether  all  or  any  of  them  are  acces- 
saries before  the  fact  in  the  felony  fur  which 
Ellis  and  Kelly  have  been  convicted  ? 

II.  If  they  are,  whether  they  are  deprived 
of  their  clergy  ? 

The  first  of  these  includes  three  propositions : 

1.  That  a  robbery  was  committed,  in  which 
Kelly  aud  Ellis  were  principals. 

2.  That  the  principals,  which  is  sufficient  to 
draw  the  accessaries  to  trial,  have  been  cob< 
victed. 

3.  That  such  things  hsTe  been  done  by  the 
defendants,  as  will  make  them  aiders,  oom- 
loanders,  and  abettors  in  the  robbery. 

The  first  of  these  is  sufficiently  esUblished 
by  the  finding  the  record  of  the  conviction 
for  wherever  a  deed  0|>erate8  by  way  of  e<lM»< 
jie/,  and  the  jury  find  it  prouf,  your  lordshipo 
must  consider  it  as  an  ntappel    In  the  pre- 
sent case  the  jury  have  found  the  record  pnmt ; 
and  by  thai  it  appears,  Chat  a  robbery  was 
committed  by  them  on  Salmon,  one  of  the  nri 
aoners.     The  Terdict  fiuds  likewise,  that  Sal 
mon  agreed  at  the  Bell  that  Blee  should  pro 
cure  persons  to  rob  him.     It  finds  too,  that 
£llis,  Kelly,  and  Blee  did  feloniously  asaault, 
and  in  the  highway  take  from  the  person  of 
Salmon,  the  goods  mentioned  in  the  indict- 
ment.   Upon  this  point,  nothing  in  the  verdict 
appears  contrary  to  the  record  of  conviction  ; 
and  you  cannot  construe  the  latter  words  of  the 
▼erdict,  so  as  to  destroy  the  first.*    This  ap- 

Kurs  from  the  case  of  Monson  v.  West, 
oore's  Reports  4iil.  (^.  jB.  8.  C.  in  Pop- 
ham  110).  The  case  was  this:  In  assize, 
tlie  tenant  pleaded  no  tenant  to  the  free- 
hold, and  so  no  disseisin,  nisi  let  parols 
tntiel  volunt,  gives  the  tenant  title  ;  upon 
which  verdict  there  was  judgment  for  the 
demandant,  and  error  brought  and  assigned, 
that  the  jory  did  not  find  the  demandant  seised, 
and  that  the  tenant  disseized  him,  as  the  custom 
is,  as  appears  i'rum  the  book  of  entries,  which 
says,  that  the  assi2Be  shall  find  seizin  and  dis- 
seizin ;  also  tliut  the  venlict  whs  imperfect,  by 
reason  of  the  ^'iti,  6cc.    After  divers  argu- 


*  When  an  act  inflicts  a  penalty  for  a  second 
offence,  the  indictment  for  the  second  offence 
must  recite  the  record  of  the  first  convic- 
tion ;  and  upon  the  evidence,  the  record  of  the 
first  conviction  iniist  be  proved  :  but  the  matter 
of  the  first  conviction  bhall  never  be  re-eza* 
mined,  but  muNt  siaud  for  ;rrHtited.  1.  H.  H. 
686.    Burii'a  J  uslice,  in  latrockiciiody  p.  Jf. 


ments,  the  jadgment  was  nffimtd ;  Ar  ftidiig 
thediaseismimplietseiiiaabo}  and  the  JKil 
the  Court  looked  upon  aa  nogatory«  bccMMi 
the  verdict  iscompleu  before  upon  tht  poinlsa 
which  the  jury  ware  charged,  vis.  the  ania 
and  disseisin.  Vaugfaan  77.  Rowcv.  Ha* 
tingdoh. 

If  a  jury,  by  their  verdict,  shall  Inhc  opu 
them  to  collect  the  contents  of  a  deed,  aad  ytl 
by  the  same  verdict  find  that  deed  in  kmowtrk, 
the  Court  is  not  to  regard  the  coUedM  Ihtf 
have  made  of  the  substance  of  the  deed.  bUths 
deed  itself.* 

9  Bulstrode  56.  James  o.  Harris.  AiSm 
for  words.  The  jury  fonnd,  that  the  dsAsdaf 
spoke  these  words  of  the  phtintiff,  tIb.  Itai 
art  a  thief,  and  I  will  prove  thee  so  ;  biA  itf 
they  were  spoke  in  the  absence  of  the  pWptf 
Sed  per  tot  Cur.  the  ktter  part  of  thcfiif 


shalfnot  stand,  for  the  issue' is  the  wwd^  Hi 
that  they  have  found.  Brooke  Tit. 
pi.  96.  abridffcd  firom  11  H.  6.  4t.  M. 
orought  a  Writ  of  Error  against  A,  sndsj 
signed  for  error,  that  the  wife  of  the  aiii  i; 
who  had  obtained  a  judgment  agaiMt-Uitf 
upon  a  writ  of  mamtenance,  died  audi  a  diyil 
C,  pending  the  writ  and  bdfore  the  jyjgmmt» 
The  defendant  pleaded,  that  his  wile  wasril 
alive  at  W,  &c.  The  inquest  waa  takea  at  hV| 
and  the  wife  appeared  m  evidence,  Jtilifi^^ 
hers^  to  be  the  same  woman  who  wassHi  W 
be  dead,  and  was  known  by  others  in  thswiH. 
The  jury  fonnd,  that  the  wifo  was  dead,  as  Hi 
phtintiff  had  aasi^ed  for  error:  and  alt  Hi 
Court  were  astonished  at  thia  vsrdiot,  wfcidi 
found  the  woman  dead,  when  aho  anpearaitf 
the  bar  alire;  and  the  record  of  the  writ  if 
maintenance  was  viewed;  and  by  that  k  ^ 
peered,  that  at  the  day  of  Nisi  Priua  inihe  m 
writ  of  maintensnce,  the  wife  appeared  m  her 
proper  person,  which  day  was  four  daysaM 
the  day  the*verdict  finds  she  died.     Chciri.  ' 

It  is  proved  by  this  record,  that  the  wiftsif 
alive  four  days  af\er  the  lerdiet  aaya  she  val 
dead  :  it  seemed  to  him,  that  this  verdict  if  sf 
thing  to  the  purpose,  but  is  a  jeofail,  to  n^  i 
thing  which  is  contrary  to  the  record. 

Afterwards  Cheiae  assembled  all  the  jedgn; 
and  their  opinion  was,  that  the  verdict  *il 
nothing  to  the  purpose,  aud  is  a  jeofail:  fori 
matter  of  record  before  the  justices  shall  notbt 
put  in  averment,  but  shall  be  tried  by  tkenemi 
Itself;  and  though  the  verdict  has  found  est* 
trary  to  that  which  b  proved  by  the  reooid,  it 
is  nothing  to  the  purpose ;  for  the  verdict  esi« 
not  defeat  the  record,  nor  is  it  of  so  great  iiscf 
as  the  record :  and  if  the  Conrt  had  been  tf* 
prised  oftlie  record  before  inquest  taken,  taf 
inquest  ought  not  to  liave  been  taken,  beeaart 
of  the  record  ;  and  she  was  proved  to  be  alivi 
four  days  afUsr  she  waa  alledged  to  be  dead :  W 


*  For  that  collection  derivea  its  •ulbed^ 
from  the  deed ;  and  therefore  mnst  of  ilsdf  w 
and  come  to  nothing,  when  it  isopponieielhi 
deedoffrhichitisaeolltctiflli,  Omnfit^, 
of£Tidsaot,p.W» 


fBI]  as  Aeeessariet  to  a  Felony  before  the  Foci.  A*  D*  17^5. 


C7W 


if  Uie  reconl  bad  not  proved  liereUve,  then  llie 
'  lintitf  would  bave  been  intitled  to  jurlgmenl. 
But  in  the  present  c&jse,  nti  cniMr^tltction  m 
Jbcre  round,  not  cveo  by  ia][»U(;iiLM>a :  fur, 
thoufifb  it  may  be  sAid,  that  here  ^a«  oo  rob- 
ry,  becauie  Satmon  wo8  cuoHentini^,  yet  in 
robberies  there  tM  some  degree  ufasseut,  and 
tbal  is  lo  avoiil  ibe  injury  whicb  i^  tbreatened 
"^'m  person  mbbed.  ll'a  man  Is  (tftoniously  as- 
lUlted,  and  made  to  swear  lo  bring  mou^y  to 
^meh  a  p!ace«  and  he  docs  it ;  tbi»  iii  determined 
in  be  a  robbery f  though  done  witb  the  ajsiFot 
Ihe  person  Vobbed.  And  your  lordshipa 
innotf  witiitMitsbaUiDg  the  principles  of  laiVf 
,y  tbere  is  no  rol>bery  eomrniUei^  wbeu  it  is 
fband  by  the  jury  tliat  tbere  ig« 

i  a[iprehand,  'my  hmh,  it  is  a  rule  ip  law, 
that  acceasariei  ^haU  not  be  trii'd  Ull  the  guilt 
pi" the  priticipalt  is  e»tah|ikiiieii,  and  the  reason 
to  avoid  conirndietory  verdicu  tipon  ihe 
le  fact.*  [V*de  BitK^ke  C^oron.  117.  iO 
p,  8.  Fitz.  Coron,  3S.]  Tbere  nfOuJd  be 
ffubvertfion  of  all  law,  if  accessaries,  who  cati- 
it  be  tried  fill  the  guitt  of  the  principaU  ti 
_       '  Itched,  abould  upon  their  trial  be  ^lio^ed 

IDontrorert  whether  there  has  been  a  rob- 
Vorno.     1  hope,  thereforei  it  ia  pjaiu  that 
P  was  a  robtrery  conimiUed  upon  ^hnon  ; 
is  to  the  jkutting  in  fear,  ihe  conimoti  hiw 
^  not  require  it,   only  required  a  taking  ky 
^ce.     It  is  fouml,  thut  8alniou  waa  aa- 
\ie<i,  and  he  might  be  put  iu  fear. 
I  cofiie  now,  my  lofd«,  to  the  aecond  part  of 
fhe  first  gcueral  quei»iioo,  viz.  That  ttie  princi- 
have  been  convicted.     This  i^  found  by 
verdict ;  it  is  also  fouiid,  that  Blee  was  one 
(#f  the  robbers,     it  in  ay  be  saiJ,  perhaps,  that 
the  defendaitts  were  only  accfssarifS  to  Blee, 
'  b^  tQ  lielly  and  Eliis  ;  whereaa  they  are 
iciad  for  b«ing  accei»iiarit:B   to    Kelly  and 
Uif.      But  1  apprehend  that  by  ilie  fair,  a 
may  he  accessary  to  oue  or  more.     It  is 
',  that  the  agrticment  was,  that  Kelly  aud 
should  commit  the  fact»and  Blee  procure 
:  therefore  it  doe»  not  follow,  thai  the  de- 
nts  were  acc<r&saries  to  Blee.     1  adtDit, 
if  ihe  tlefeudant»  had  tieen  inrljcted  aa  ac- 
ies  to  Blee,  not  to  Kelly  and  Ellis,  there 
^  I  hiive  beeu  sK»me  do^bt,  but  now  th&re 
4Siiu  be  none  :    for  when  the  pnDci[»alfi  are  oon- 
Ij  the  defendaiitti  canDot  say,  we  were  ac- 
,riea  to  three  ;    but  the  queatiob  is^  Were 

tiQt  accesaaries  to  two? 

'  It  i«  found,  that  the  original  fact  was  com- 
iniued  by  Kelly  and  Ellis;  and,  as  to  the  pre- 
net  of  stealing  linen,  that  was  the  artiftre 
ifey  ^hicb  Ibese  poor  lads  were  to  be  eiitrap- 
^led ;  it  waa  not  Ihe  fuct  intended  to  be  conmut- 
jgd,  nor  was  it  the  fact  whic>h  was  committed  : 
4of  the  agreement  at  the  Hell  was,  tbat  fiiee 
should  procure  two  persons  to  rob  SalmoD,  nnd 
iibat  be  should  inform  thetn,  he  would  mtmi 
alliein  in  «^teaiing  ftome  lioen  in  the  parkli  of 
lUeptford* 


*  Hre   Leaches    HawkiQs'n    Plena    of  tl^ 
CrowD,  b,  s,  c.  ^9,  a.  47, 


There  are  mawy  c?^se•  iu  Keyliog  where 
thtfe  preteuces  have  been  rejected,  purlicularly 
p.  il,  whertf  ffOme  ruguos  inllueuced  a  consta- 
ble to  briujk  open  the  dour  of  a  house,  and  iht^- 
iipon  tht^y  entered  aud  ritled  it;  this  wzs  ad- 
judrred  burglary,  aud  it  vas  re  dclermiued  iti 
1730,  in  the  case  uf  Uie  Kiog  atul  Corowell.f 
-■ . . -^        -1 

f  Thin  Jo«btia  Corn VI  oil  was  footioao  to 
Nicholas  Feu  wick,  esq.  aud  in  October  s^- 
fii^n^,  in  sir  Richurd  Bn teases  mayoralty^ 
1730,  **  He,  and  Thomas  Kivers,  of  St.  Uo- 
tolpii  Afdgate,  were  ir^dictcd  at  the  Old  Bailey, 
for  hurglarionsly  breaking  the  house  of  the  sa^l 
Nicholas  Fen«v'ick,  aud  stealiug  divers  pieces 
of  plate,  to  the  value  of  Ba/.  and  Holland  shirtei 
to  the  value  of  '2Qi  aqd  other  ^ooils,  on  the  ath 
of  Snpicmber.  The  lo&s  of  the  goods  was 
proved  by  Mr.  Fen  wick  and  i>ther«,  though  no 
breakiug  open  the  houne  appeared  i  but  he 
touiid  part  of  his  plate  by  thij  direction  pf 
John  Girst,  an  accomphce,  who  swore,  Tbjit 
after  divers  consultations  with  Corn  well,  one 
Sunday  evening,  aliout  robbing  Mr.  Fenwick^s 
house,  it  waa  agreed,  th^tt  he  and  Rivers  shoulil 
do  it  on  the  Tuesday  fidlowing.  Acconlingly, 
Qjrst  a n4  Rivers  came  to  Mr.  Fenwick^s  house 
about  two  o^olock  in  the  rnorning,  ajid  found 
Corn  well  standing  iu  his  shirt,  mth  the  door 
opai,  peeping  oat  for  tljem  ;  thJit  they  went  in, 
and  Cornwall  opened  tlie  door  of  the  beaufet^ 
ond  tliere  was  a  candle  burning  it)  a  silver  can- 
dlestick, and  Corn  well  look  out  the  plate^  and 
Ui  it  on  the  carpet  on  a  tiible,  nuil  ilien  went 
and  fetched  the  napkins  and  linen  out  of  a  bu- 
reau, aud  the  lady's  laced  head,  the  tea-equi> 
page,  and  two  silver  castors ;  Rivers  bundled 
them  up .  He  and  Rivers  carried  all  to  Rivers's 
lodgings,  and  Rivera  afterwards  pawned  them 
to  one  Grub,  who  a^vore  he  took  iu  fifty* six 
ounces  of  the  plate  of  Rivers."  The  fact  being 
plainly  proved,  the  jury  found  Rivers  Guilty, 
l>efttli  :  but  as  to  Ou-nvrell.  it  being  a  netr 
point,  the  Court  directed  the  jury  to  find  a  S{ft8- 
ciat  verdict. 

In  December  sessions  following,  the  Court 
ordered  Joshua  Cora  well  to  the  bar,  and  told 
him,  That  the  openinp^  the  door  of  his  master^s 
h<iuse  in  the  nigbt-tiine,  and  letliug  in  two 
persons  to  rob  him  (on  which  the  jury  biougbt 
in  a  special  verdict  Inst  sessions,)  was  referred 
to  the  twelve  juilges,  who  adjudged  his  case 
to  he  burglary,  and  he  received  sentence  of 
death.* 

lUvers  was  ejcecuted  at  Tyhum,  Monday, 
November  10,  1730;  and  Joshua  CornivAl 
was  hanged  at  TyUura,  Wednesday,  December 
33,  following.  He  owned,  **  That  by  the  pcy- 
suasioft  of  Rivers  and  Girtit,  while  in  Mr,  Fcfi- 
«<  ick^s  service,  he  confipirad  with  them  to  nh 
bis  qaoster  ;  which  accordingly  he  did,  by 
opeuing  the  hock-door,  and  lirtting  tliem  m^ 
aud  tlien  syllering  them  to  lake  away  tbegooija 

*  See  last's  Picas  of  Uie  Crown,  c  15,  f- 
5?,  and  Leach's  Uawlfins'»  Pleas  of  the  Crowjli 
b<M»ki,i;.^a.U. 


'78S] 


STOMftfiB  IL 


TM  qfM^Damd  mUtoAer^ 


'"  looowDOWtotiietliiH  MdliitjMirftof'tbe 
fint  generml  quarticMi:  Whether  all  the  defen- 
duiti,  or  any  of  them,  ha?e  oommltted  such 
thtngt  ••  win  make  them  aiden^  oommandeny 
and  abeHora  of  the  robbery  F 

Under  thit  head  1  mtended  to  infoire, 

1.  Into  the  nature  of  aceeanrica  before  the 
Act:  and, 

S.  Whether  there  ia  any  material  diflerence 
in^  eaae  of  SalmoniWim  any  of  the  reHf 
-  JBSiit  as  1  hare  ahwiy  taken  op  ao  moeh  of 
if6m  kirdshipa*  time»  I  afaall  leafe  that  which 
'ffrfatea  to  Salmon,  to  the  learned  gentleailui 
who  ia  to  apeak  next 

Aa  to  the  firrt,  the  nafare  of  aeeeaniiea : 

By  the  oommon  law,  the  perMm  akme  who 
committed  the  faet  waa  deemed  the  prineipal, 
and  thoee  whoMoenred  it  to  be  done  *  qmdi- 
cu^oe  mode/ who  eontrired  il^  plotted  it, 
oovnatlleda  and  aaaiated,  werb  aceeamriei  be- 
Ibre  the  net;  and  the  trial  waa  poaterior  in 
reapeet  of  the  commiaiion,  beeanae  the  eziat- 
'  ence  of  the  crime  waa  to  be  llrat  examined  into ; 
ftr  befbre  then  it  eoaM  not  be  known,  whether 
tbey  had  been  gniHy  of  a  crime  or  no.  But 
when  the  fhct  waa  esuUnhed,  they  proceeded 
*  inrerM  ordioe,'  and  he  that  firit  eoonaelled 
waa  hut  tried,  aa  appcara  from  Bracton,  b.  3, 
cap.  '19,  p.  138,  aect  4, 5,  and  p.  139,  aect  10, 
11,  wherehemakca  nee  of  the  words, « fortia, 
pneceptom,  aosiliom,'  which  three  aorta  in« 
chide  all  aorta  of  peraons  who  eootrlbale  to,  or 
in  any  wiaeasristto  theedmmiaMon  of  the  Ihct. 

In  aect  5,  he  haa  the  partmohur  form  of  an 
'appeal.  Stanntbrd,  in  hia  Pleaa  of  the  Crown, 
'b.  1,  c  45,  p.  40, 41,  which  ia  an  abridpnent 
of  Bracton,  aaya.  Thai  in  an  appeil  of  mony 
nil  the  prindpab  aAd  aceesaariea  mnst  be  ioin-- 
cd ;  and  there  he  describee  acoeasaries  thus : 
**  Qm  Tenit,  rel  tenait,  vel  TiDxit  earn,  f e!  fait 
in  anxilio  irel  consilio^qualicanqae  modo,  vei 
prncepto  rel  mandato,  ^uo  nagis  ipse  C.  in- 
terfectos  fuit."  [This  m  Tcrbatim  from  Brac- 
tonj 

These  words  are  general,  but  prove  what  the 
law  at  that  time  waa ;  he  waa  accessary,  of 
whom  it  might  be  said,  *  qai  fait  in  coqsiIio  ;' 
and  he  alone  was  not  an  accessary,  whom  the 
jary  Ibnnd  to  be  *  nulto  modo  in  consilio,'  which 
n  only  the  oegatiTC.  So  Fleta,  b.  1,  c.  93,  p. 
S3,  34.  These  days  had  not  arri?ed  ai  that 
critical  skill ;  tbey  thoagfat  it  waa  the  partici- 
pation of  guilt  which  constituted  the  crime. 

The  story  of  Tarqain  *  in  Li? y  is  a  similar 


and  no  one  can  doabt,hil 
accessanr  bdRMre  the  fbot,  thocfb  hi 
Ihongh  fie  saw  not  his  son  Sestaa. 
likeatory  of  Thraaibolna  and  Psri^i 
rintb,  rrtated  in  Heiodetna  and  Am 
The  Mirror,  cap.  1,  aeet.  IS,  ] 
lohur,  and  recilea  mae  k 


mentioned  in  theindictment,  with  many  others : 

but  said,  he  did  not  hand  out  the  pMids,  as 
'  Oiral  awore,  bat  onljr  shewed  them  where  they 
\were ;  and  then  Rivers  bundled  them  up,  and 

tiiey  carried  them  off  to  his  lodgings." 

*  The  Gabii,  who  had  met  with  some  suc- 
'  cem  against  the  Romana,  unanimously  cho«e 

Sextos  Tarquiniua  lor  their  governor:  **lta- 

.jqne  postqoam  satis  firiam  collcctom  ad  omoea  j  aua  ipeoa  invidia  opportunus  mtefv 
vcemtila  tMebat,  (ac.  Sextna  Timniiiiua)  tam  b  '     " 

mds  nnom  aciscitatam  Romam  ad  patrem  oAi- 

ll^fiiidnamaaftoerafeyeir  fCttdoqaideBnt 


1.  Thosewhoi 

9.  Those  who  conceal. 

S.  Thoae  who  aUow  or  cnnaent 

4.  Thoae  who  — - 

5.  Thoae  who  aid. 

0.  Thoae  who  are  partnera  in  Hm 
7.  Thoee  who  knew  it,  and  < 
by  defence  or  excnaa. 


^it,anddMla 


8.  Those  who  receiTed  them  tan 

9.  Thoee  who  are  in  the  ibi«n« 
Thus  Coke's  Instit  18S,  m  thcC 

the  Statute  of  Weilnnnaler,  c.  14. 
befbre  the  fhct  are  difidedmlo  tlira 
Commandment,  Foree,  and  Aid* 

Phan^iim.  Under  thia  are  «b 
thoae  that  incite,  procore,  act  co, 
any  other  to  do  the  fact,  and  arc  \ 
when  the  fhct  ia  done. 

Ihrtim  H  a  word  of  art,  and  pro| 
flea  the  fhmiahiuf  a  weapon  of  Ibn 
fact,  by  force  of^wbich  the  faet  ia 
and  he  that  fhmisheth  is  not  preaa 
Act  to  done;  and dtea  Bracton,  b.  9 
**  Ubi  factum  nullum,  ibi  fortia  nnD 
ceptnm  nooiere  debet;"  and  again, 
fortia,  et  prseeptum  generant  onica 
non  eaaet  Tulnns  forte,  ai  non  adfU 
neo  mlnoa,  nee  fortia,  niai  pracepti 
aiaaet."  And  eometiroes,  m  a  hug 
any  that  is  accessary  befbre  the  fad 

Auxiiium,  Un^er  this  word  are 
prebeadcd  all  persons  coanselling 
plotting,  assentiug,  oonsentiog,  and 
mg  to  do  the  fact,  and  are  not  preseii 
act  is  (lone ;  for,  if  present,  they  are 
Before  the  time  of  Henry  the  4th, 
no  distinction  between  present  at 
only  be  who  struck  the  stroke  was 
the  others,  who  were  present,  wei 
ries,  Plowden  98  and  100.  Fitz. 
Brooke  Coron.  118.    The  word  « 


omnia  anus  Gabiis  posset  ei  Dii  de  dii 
nuncio,  quia  credo  dubis  fidei  fide 
foce  responsuro  est.  Rex,  relut  d 
dns,  in  bortum  sdium  transit,  seqo 
filii,  ubi  inambulans  tacitus,  summa 
capita  dicitor  baculo  decossisse.  Ia 
expectaodoque  responsum  nuncina 
re  imperfecta,  redit  GabioK :  qum  d 
quiaqne  t  iderit,  refert ;  sen  ira,  aaa 
superbia  insim  ingeoio,  ouUam  m 
eniisisse.  Sexto  uM,  quid  vellet  par 
preciperet  taritix  ambagihuii,  patait; 
civitatis,  criaiinnndo  alifM  apud  pep 


palam ;  quidam,  in  quibus  mioiia  an 
minatio  erat  'fuluii|  dam  hMAw 
l,cap.54.". 


as  Accesiariei  to  a  Feiony  before  the  Fact. 
19»  iOi,  188 


A.  D.  1755. 


[7«6 


lOfteti  used  by  Brooke  Coroo. 
^itz.  Coron,  S3. 

The  view  of  the  cunimon  law  was  to  }»rerent, 
if  not  prewetit  to  punish,  nil  Ihase  who  shoutd 
Ptir  up  aoy  on«*  to  coratiiii  a  felony  i  and  lb e 
law  respecls  the  intenlioii. 

The  law  of  Enirland  h  not  a  cobweb,  whicb 
fllTisoders  may  »1ip  (hrou^li  by  being  (j'reater 
tvillaios  than  are  allowed  of  by  the  laws  of  other 
jiations  ;  and  J  ha|je  thia  kioil  of  caloO  and  de- 
liberate fihaioy  shall  nut  escape  by  a  cri- 

But  il  may  be  said,  that  the  Tenlicl  baa  not 
found  any  coiiimunicatioa  by  express  words* 
-^ut  Ihb  will  make  no  difTereace,  whether  ihey 
did  it  by  Blee,  or  by  letter,  or  by  any  sig^ ; 
Ibr,  by  whate?er  method  it  is  doue,  they  did  it; 
Mndf  though  there  wereoowurds,  they  shall  he 
^necessaries. 

8up|>o<^e  a  person  should  plot  bigli  treason « 
and  employ  another  to  kill  the  kln^i  here  he 
is  Dot  nrtncipal ;  but  is  he  out  accessary  ? 
irCortsiitly  he  U,  It  would  be  ?ery  singfular, 
^ttAcr  all  the  eocomiumstbat  have  beeu  ^i^en  to 
~'ie  commori  law  of  England ,  if  tbis^should  uot 
lie  the  law  of  the  land,  when  it  is  the  law  of  ail 
tUie  untioo'?  in  the  world.  Julius  Clarus,  in  his 
PractiirA  Crimiiiaiis,  h.  5,  q.  89^  puts  this  case; 
If  a  roe^Een^er  i:^  employed  by  A,  to  convey  a 
Belter  to  B,  which  letter  advises  E  to  commit  a 
Jelony,  and  the  felony  is  committed,  they  are 
fUl  three  to  be  punished  with  the  same  punish- 
ment.  IJut  there  is,  my  lords^  a  case  of  the 
Jlif best  authority,  that  is,  that  of  Abah  and 
jNabolh,  1  Kings,  c.  24.  (aud  very  artfully 
ted  it  before  be  meutioneft  the  authority.) 
any  one  say,  that  Abah  was  not  nn  acces- 
',  tbouLfb  he  spoke  not  at  all  P  I  uettd  uot 
HMfe  cu^e<i  from  biitories  of  other  natioasv  when 
air  Thomas  Overbury^a  case,  [VoL  2,  p*  911, 
^  this  Collection]  is  so  applicable  to  tbe*present 
caae.  Thore  was  only  one  principal  couvicted, 
Ihoug-h  there  were  six  accessaries  ;  and  five 
}4aouf  icied,  though  the  poison  passed  through 
ktbree  f»r  four  hands ;  and  Fiankhn  was  exe^ 
ciil«d. 

Where  then  is  the  reason  of  the  law,  that 
pays,  thiss  consc'nt  mu9t  be  in  express  words  ? 
The  consent  is  ihi*  crime,  and  lliat  the  jury 
» bave  tbund  ;  and  that  that  is  sutficient,  ap- 
i|iears  from  Flowden  473-4.  Sauodera  and 
Archer's  case.  Where  Archer  counselled 
•Saunders,  ivhu  wanted  to  ^et  rid  of  bis  wife,  to 
g[ire  ber  pnison  in  a  roasted  apple,  which  be 
(Aeoordiagly  did  ;  and  tbe  wife  was  going  to 
give  some  of  it  to  their  child,  whom  Saunders 
wai  very  limtl  of:  whereupon  he  endeavoured 
to  dissuade  her  from  criving  it,  saying,  It  ta  not 
^ood  for  children  ;  but  the  wife  answered,  It  is 
r  Setter  fur  it  than  for  roe,  and  gave  tlie  child 
aome:  hut  the  wife  lired,  and  tbe  child  died. 
I  Here  Saunders  was  guilty  of  murder,  thinigh 
lie  intended  none  to  the  child  \  because  hla  in- 
leution  was  to  murder.  But  a&  to  Archer,  the 
question  was,  Whether  be  was  accesaaryf 
Aod  though  the  judges  in  this  case  were  of 
opinion  that  he  was  oot^  yet  tbey  lliought  It 

VOL.  XIX. 


more  proper  that  he  should  be  delivered  by  a 
pardon  than  otherv%ise,  and  acconlingly  they 
Icept  him  in  prison  I'rom  one  sessions  to  an- 
other, till  he  procured  a  pardon:  and  Plowden, 
the  reporter,  says,  it  was  his  opinion,  tliat  who- 
ever counsels  or  commands  an  evil  thing, 
should  be  judged  accessary  to  all  wbiob  fol- 
lows from  that  et il  action,  but  not  from  any 
distinct  thing.  If  I  command  one  to  strike  or 
rob  another,  and  he  kills  him,  I  am  accessary 
to  tbe  murder,  because  it  is  done  in  coase- 
quence  of  my  command*  Tbe  same,  if  J  com- 
mand one  to  burn  a  piirticular  bouse,  and  he 
does  it  pursuant  to  my  command  ;  but  if  ha 
burns  another  house,  this  is  not  iu  consequence 
of  my  command. 

I  come  now,  ray  lords,  to  the  second  general 
question,  which  is,  Whether  the  defendants 
are  deprived  of  their  clergy  ?  And  if  the  first 
proposition  is  established,  I  ipprehcnd  they  are. 
This  (juestion  depends  ou  llie  con^trnctioo  of 
the  acts  of  tbe  4tli  and  5th  of  Philip  and 
Mary,  cap.  4,  and  the  3d  and  4th  of  William 
and  Mary,  cap.  9. 

Tbe  4Ui  aud  5tb  of  Philip  and  Mary,  is  for 
the  due  punishment  of  such  ascommnud,  coun« 
sel,  or  hire  smy  person  to  commit  auy  felony, 
and  deprives  them  of  Iheir  clergy. 

The  3d  aud  4th  of  William  and  Mary  de- 
prives those  of  elergfy,  who  shall  comfoit,  aid, 
abet,  assist,  counsel,  hire,  or  command  any 
person  to  commit  tV4ony. 

These  Acts  constitute  no  new  oflTeoce ;  they 
follow  tbe  coiiuimu  law,  and  are  supptetory, 
aud  speak  of  au  offence  known  at  common 
law  ;  and  I  submit  it,  that  if  your  lordships 
determine  these  men  to  be  accessariea  before 
the  fact,  unless  tbe  king  interposes  his  mercy, 
they  must  he  executed.  If  a  statute  speaks  or  - 
nmtteni  known  at  common  law,  it  mufit,  at  to^J 
that  matter,  be  construed  and  exteu'led  accord- 
ing to  tbe  common  law.  Mohan  9Q.  Coko 
Lit.  SUl.  6  Modern  143. 

This  is  no  new  case ;  for  in  a  similar  case  il 
ifi  determined,  that  if  a  statute  is  niiide  supple- 
tory  to  tbe  common  law,  and  takmg  away  the 
clergy,  it  must  be  construed  literally,  Jen* 
kins,  2  Cent,  97-  The  statutes  ^3  H.  8,  anil 
27  Edw.  3,  which  take  away  clergy,  are 
pro  inmo  publico ;  tberetbre  to  be  tdteu  by 
equity. 

But  it  may  be  said,  that  the  words  *  excite,* 
'  procure,'  ^c.  are  not  in  the  acts  of  FbiUp  and 
Mary,  and  William  and  >]ary  :  but  this  will 
make  no  difference  ;  for,  1  Anderson  194,  tha 
words  of  the  indictment  were,  cxcitavit^  rnovitf 
€t  priKurarit  :  resolved,  that  the  indictment 
was  good,  though  the  word  *  counser  was  out ; 
for  it  is  not  possible  to  excite,  mote,  and  pro- 
cure, without  counselling. 

Mr.  Madan^  on  the  same  side,  states  I  ha  | 
question  as  Mr.  Hume  did.  f  shall  take  notica  { 
of  the  word  *  aid  ;'  and  I  apprehend,  my  lords,  1 
that  the  defeudants  will  certainly  fall  within  tha  . 
sense  of  aiding.  In  Hale^s  Pleas  of  the  Crown, 
page  616,  there  ii  adefioition  of  acccsa^ies^ 


787] 


27  GEORGE  11. 


Trial  of  M* Daniel  and^tk^rtt 


I7a 


▼IE.  That  which  makes  mn  accessary  before 
the  fact,  h  comtnamlt  counsel,  abetment,  or 

f>rocurement|  by  one  to  another,  to  cotmnit  a  fe- 
ony,  when  the  commander  or  couosdtor  ii  aii- 
len't  at  the  time  of  the  felony  committed  ;  for  if 
he  he  present,  he  is  princtpaL  But  id  the  case 
of  poisoning^,  a  man  may  he  principal,  tboug^h 
absent,  as  in  Vanx's  case,  4  Coke  44,  6  Hale's 
P.  C\  If  a  man  is  itniicted  as  principul,  and 
acquittect,  he  shall  not  he  io dieted  as  accessary 
before  the  fact,  Stamford  105.  and  S  £dw.  3| 
150.  283.  Fitz.  Coroo,''^  So  that  SaJmoOp  it 
may  be  said,  is  no  accessary  before  the  fact 
fand  if  he  is  to  he  tooked  tinon  as  a  principal, 
he  will  not  come  under  this  mdictmenl)  because 
he  was  present  when  the  f:tct  was  done.  This 
is  absurd;  for  the  fact  could  not  hare  been 
done,  if  he  had  not  been  present  Because  he 
vras  at  Deptford  when  the  fact  was  com  mil  led, 
therefore  not  at  the  Belt  wheo  contriTed  y  this 
11  a  plain  non  iequitur, 
J  shall  now  consider, 

1.  Whether  jour  brdsHips  cati  eonsider  it  to 
be  a  robbery  on  Salmon,  os  the  indict- 
meiit  is  for  putting  in  fear,  which  could 
not  have  happened,  if  be  purposely  put 
himself  in  the  way  ? 
I.    Whether  the  pVisoners,  as  they  never 
spoke  to  Kelly  and  Ellis,  are  guilty  of 
bani^  accessaries  ? 
3.    Whether,  as  the  prisoners  ngreed  that 
filee  should   tell  Kelly  and  KIIih  Ihat  be 
could  asbist  Ihem  to  steal  linen,  thi!>  will 
alter  the  case,  as  Blee  etiticcd  Ihetn  to 
commit  one  felony,  and  ihey  cotntiiittetl 
anoiher? 
1.   The  jury  have  foiiid  the  record  of  llie 
#ortTiction  of  Kelly  anil  Ellis  prout^  and  yotir 
lordships  and  the  whole  world  are  estopped  to 
aay  the  contrary,  viz.  That  a  robbery  has  not 
been  committed:    for  (o    say    tliar  Salmon 
Iras  oot  robbed,  is  to  say  agamst  thai  record, 
which  the  jury  fiavc  found  to  be  true.    The  re- 
cord lies  before  your  lordahips^  a$  part  of  the 
•iwuial  verdict,  and  jecordi  cannot  be  conlra- 
dicted.  Coke  Lit;  117.  b.    Id,  £60. 

lu  lord  LovatV  case,  the  crowu  called  Mr. 
Hurray  as  evidence  agfainst  him  :  lord  kovai 
objected  to  him,  as  he  sioad  attainted  of  hi^li 
treason  :  it  was  there  said,  be  bad  been  pro- 
ceeded apfainsl  in  the  King's-bt-nch  lor  not 
sunendenug  witliin  the  time  hmited.  Mr, 
Murray  pleaded,  he  did  surrender  himself 
within  the  time  limited  by  the  act  of  attainder  ; 
and  the  attorney -gen  era  Icon  fe^ed  his  plea  to 
I  *  be  true ;  how  did  he  prove  this  ?  By  the  record 
Qf  the  admissioQ  of  his  plea  to  be  iVue.t  And 
tff  your  lordships  determine  thi^  to  be  no  rob- 
bery, it  is  not  only  overturning  the  orig;inal 
l^onviciion  of  Kelly  and  Ellis,  but  alio  the  £nd* 
inir  of  the  present  jury. 

The  matter  now  to  be  considered  is  not,  whe* 
Ihcr  a  robbery  was  committed  by  Kelly  and 
Ellis,  but  whether  the  prisoners  are  guilty  of 

•  So  too  Kelyng,  98  ;.  John  RoberU'fi  case* 


counselling  them  to  do  ii*     The  parti  jif  lb  | 
findings  of  the  jury,  subsequent  to  the  f  "  , 
of  the  record,  are  now  to  b«  looked  apoa,  a  j 
upon  private  knowledge,  Plowden,  83.  b,    Tk 
jury  cannot  tind  the  record  in  ooe  pvViai 
contradict  it  in  another. 

Whoever  counsels  a  felony  or  robbery  la  bt  I 
done,  is  accessary  before  the  fact :  the  dcfeop  f 
dants  counselled,  *kc.  ergo  aceean 
the  fact.  That  they  did  couiia«*1,  ia  fymd  si 
the  special  verdict;  and  Uae  ibifd  propoMi I 
follows  from  the  premisses. 

But  it  is  said,  that  the  defendanls  < 
Blee  Ui  counsel  Kelly  and  Eltit, 

1.  What  is  counselling,  within  the  i 
of  the  statutes?  Procuring',  moving,  are  atfil 
species  of  counselling,  and  Bhall  be  good  m  m\ 
iudJctmeot,  though  the  word  '  (Myuasdliaf*  it  | 
left  out,  1  Anderson,  194.  And  1  insialyJ^ 
by  the  word  '  counsel ,'  is  not  meant  couii 
by  word  of  mouth  only,  thoiig-b  the 
count  of  the  indictment  does  not  <H>Qcliide«ttl 
a  ^  contra  for  mam  statuti  ;*  but  havings  tbe  i 
^  couDser  in  it,  it  will  be  sutiictent,  1  H.  P.  C  | 
5'i5.  A  man  may  be  acquitted  upon  an  i 
ment  which  concludes  'contra  formanislaMlH*| 
and  found  guiUy  of  simple  felony  at  i 
law. 

Kelly  and  Ellis  were  seen  and  apprtived  tfl 
by  all  tbi^  prisont^rs.     As  for  as  1  can  fiad,  1^ ' 
indictment  is  the  same  as  all  xndicuneali  I 
accessaries.    The  gist  ot  tlie  indictment  ii  I 
counselling* 

A  general  malice  is  transferable  to  uiy  i 
a  man  meets  with  ;  at 

Particular  malice  to  one  person  may  i 
transferable  to  another :  as  in  8aunden*s€isp|J 
Plowden,  473»  Tbe  indictment  is,  <  ea  intei-l 
'  tione  felonic^  prcebuit/  and  reached  to  oae  ail] 
intended ;  so  *  ea  intentione  felootc^  [tercosa^'l 
will  reach  oue  who  did  not  strike  ai  all ;  lir 
the  stroke  of  one  extends  to  all  thai  were  pf#- 
i«nt  and  abetting,  Plowden,  98. 

3.  If  the  defendants  had  never  seen  Ellis  lad 
Kelly»  the  general  command  to  Blee,  to  f^ 
cure  two  persons  to  rob,  would,  by  operatiMiif 
law,  operate  against  the  defendants,  aa  soon  V 
Ellis  and  Kelly  were  procured* 

Counsel  even  against  one  not  *  in  rerun  m* 
'  tma,'  if  when  the  person  is  in  bein^,  ibl 
counsel  is  folloived,  it  will  make  tbe  couoarilir 
accessory.  Dyer,  186,  a.  Blee  did 
said  nothiji^,  without  the  advice  and  i 
of  all  the  prisoners. 

^.  Blee  was  direcled  to  tell  Kelly  Mxid  fifiii» 
tltat  he  could  help  them  to  steal  some  iLneti  at 
ileptford,  which  he  did  j  hut  told  them  ooUirif 
of  the  robbing  Salmon. 

I  admit,  if  i  counsel  one  to  eoromtt  ooe  spa* 
cies  of  felony,  and  he  commits  another,  I  tai 
not  accessary,  H.  P.  C.  016.  So  in  H.  R  C. 
a  18,  ]f  a  roan,  afler  having  connselled  aDOther 
to  commit  murder,  and,  before  the  fact  is  doae« 
repents,  and  forbids  and  couDtermandt  U,  H 
is  not  accessary  if  the  murder  is  committed.  80 
in  tho  present  case,  if  tlie  defendants  lateDM 
that  Kelly  aad  1^  sUi^uId  only  steal  I 


789}  as  Aceestaries  to  a  Felony  btjbrt  the  Fact.  A,  D.  1755^ 


[7m 


d  they  met  with  Satman  by  chance  and  rob- 
bed luin,  ihederendanls  would  noi  Ue  accessary 
to  that  robbery :  but  it  appeari  by  the  record 
to  tUe  coDtrary  ;  their  intetition  was  to  get  the 
rewards  offered  Ky  act  of  parliament  and  the 
inhabitants  of  Pepllbrd  ;  and»  from  the  nature 
Qf  the  action,  Blee  could  not  tell  them  tW  de- 
nigDy  for  it  would  have  been  absurd  to  have  told 
them ;  for  bow  could  Blee  know  Sal  moo  would 
be  there?  Tliia  must  have  struck  them  upau 
bis  first  ineDtioning^  it, 

A  robl>ery  was  counselled^  a  robbery  was 
committed,  and  a  robbery  was  comiuitted  aa 
Gou  use  lied. 

But  if  all  these  arguments  should  fail^  the 
argument  *  ab  incoDTenienti*  is  often  allowed  to 
be  of  great  weighty  and  it  would  dc^erfe  iu  no 
case  more  than  the  present.  Had  I  been  asked 
my  opinion  upon  such  a  case  as  this»  I  should 
B«i|  have  hesitated  in  my  opinion  :  but  ii\  al'ter 
TOor  tordsfai[)S^  determination  to  Ibe  contrary, 
T  should  hare  I  be  same  ca£e  put  to  toe;  L 
should  tell  my  cUent,  Ttiat  provided  he  saw 
^ot,  nor  spoke  Dut  to  bim  that  committed  the 
IBUrderp  he  ntight  ride  in  his  coach ,  and  laugh 
ml  bis  frieuds,  wbiJe  they  went  to  be  hanged. 
The  defendants  cannot  be  said  to  be  accessary 
to  an  accesijary  ;  for  that  is,  by  construction  of 
lawt  one  who  receives  anoitier  before  the  tact, 
knowing  him  to  be  an  accessary* 

Bui  it  may  be  said,  after  all,  that  J  have 
produced  no  case  in  pint ;  1  must  confess » 
after  a  long  and  diligent  search,  1  cannot  find 
fiDe :  but  there  will  be  one  ;  titere  will  be  a  re- 
|»ort  of  this  case,  aiHi  the  King  and  Al^Daniel 
and  cithers  will  be  a  case  in  point  hereafter. 


Trinity  Vacation,  28  Geo.  II. 

The  Kjng  ogainst  M^Daniel  and  otherg. 

The  Judges  met  again  at  Ber]eant*s>Inu  Hall, 
to  hear  the  Arguments  in  faTour  of  the 

Defendants. 

Mr.  Hume  begged  leave  to  mention  a  ease 
which  be  had  met  with  since  bis  argument, 
which  seemed  to  be  applicable  to  the  present : 
thai  was  the  case  of  William  Belchierj  who  was^ 
tried  at  the  Old*  Bailey,  in  the  mayoralty  of 
Robert  Alsop,  estj,  in  June  sessions  1752,  N° 
345,  p.  309,  and  recited  the  f^ase  at  large  from 
the  Sessions- Paper,  viz. 

<*  William  Beichier  was  indicted,  for  that  he, 
on  the  king's  highway,  on  William  Norton  did 
make  an  assault,  putting  him  in  corporal  fear 
aod  danger  of  his  lite,  and  taking  from  bis  per- 
son fife  shillings,  June  3. 

"  William  Norton.  The  chaise  to  the  De- 
vizes having  been  robbf  d  tivo  or  three  times,  as 
1  was  informed,  J  was  tlesired  to  go  in  it,  to  see 
if  {  could  take  the  thief,  which  1  did  on  the  3d 
of  June,  about  lialf  an  hour  alter  one  in  Ibe 
morning.  I  got  into  the  post -chaise :  the  post* 
hoy  t«ld  me,  the  plac«  whers  he  had  beeo 


atoppeil  was  near  the  Half- Way  House,  be* 
tween  Knigbtsbridge  and  Kensington.  As  vte 
came  near  tbe  house,  the  prisoner  came  to  us 
0(1  foot,  and  said,  Driver,  slop!  H^  held  a 
pistol  tinder-box  to  the  chaise,  and  said^  Your 
money  directly,  you  must  not  stay,  this  minute 
your  money,  (fie  produced  the  timler-lMJx), 
J  said,  DouH  frighten  us;  I  have  but  a  triHe, 
yon  shall  have  it.  Then  I  said  to  the  genii e- 
men,  (there  were  three  in  tbe  chaiae)  ^ive  your 
money,  &c.  I  took  out  a  pistol  from  my  coal 
pocket,  and  from  my  breecbes  pocki^t  a  five- 
shilling  piece,  and  a  dollar,  and  held  the  pistol 
concealed  in  one  band,  and  tbe  money  in  the 
other.  I  held  theT«*oney  preuy  hard  :  he  said, 
Put  it  in  my  hat.  1  let  him  take  itte  five- 
tihilling  piece  out  of  my  hand :  as  soon  as  he 
hod  taken  it,  I  snapped  my  pistol  at  \nm\  il 
did  not  go  ofi':  he  staggered  back,  and  held  up 
bis  hands,  and  said,  0  Lord  *  O  Lord !  IjumpeiJ 
out  of  the  chaise  i  ht  ran  away,  and  I  after 
him,  about  six  or  seven  hundrefl  yards  ^  and 
tbero  took  him.  1  hit  bim  a  blow  on  his  hack  ; 
he  begged  for  mercy  on  his  knees.  I  took  hii 
neckcloth  off,  mid  tied  his  hands  with  it,  and 
brought  him  back  to  the  chaise :  then  I  told 
the  gentlemen  in  the  chaise.  That  was  tbe  er« 
rami  f  came  upon,  and  wished  them  a  good 
journey  j  and  brought  the  prisoner  to  London. 

^^  Q.  Did  you  lo«e  sight  of  him  in  tbi 
pursuit  ? 

**■  Norton,  No,  I  did  not,  my  lord ;  it  was  a 
very  clear  morning. 

**  Q,  from  the  Pris.  Ask  him  how  he  lives? 

*•  Norton  to  the  Q.  1  keep  a  shop  in  Wych* 
street,  and  sometimes  1  take  a  ihtef, 

**  William  Messt'nger.  1  drove  the  post- 
chaise.  I  took  Mr,  Norton  in  ttie  chaise  at 
Hyde- Park  corner i  and  lold  him,  if  we  did 
not  meet  the  highwayman  i»etween  Kuights- 
bridge  and  Kensington,  we  should  not  meet 
him  at  all.  1  saw  nim  coming,  and  said,  He 
is  coming,  p^et  the  pistol  ready.  He  came  u^ 
to  tbe  chaise,  and  said,  Your  money,  make 
haste,  your  money.  I  heard  tbe  pistol  snap. 
The  prisoner  said^  O  Lord  !  and  ran  away,  and 
r«4orton  alter  him,  and  took  him. 

^*  Q.  Did  you  ever  lose  sight^of  him  in  the 
pursuit?— MfW€«^fr.  1  did,  fur  a  li tile  time  : 
tbe  pursuit  was  uut  above  three  minutes.  I 
heard  the  prisoner  cry,  (1  Lord  I  the  momenl 
be  was  taken. 

"  Fritoner*s  Dffcfice.  I  leave  it  to  year 
lordship  and  the  honourable  Court. 

"Guilty,  Death/* 

Mr.  Serjeant  Davy,  I  have  tlie  honour  of  < 
attending  your  lordships  as  counsel  lor  tbft 
prisoners ;  and  t  must  own,,  that  1  couhl  not 
have  been  prevailed  upon  to  have  been  counsel 
far  such  a  set  of  rogues,  had  1  nut  been  ap* 
poiuted  by  your  lordships. 

I  shall  consiiler  tUe  fjuestion  under  two  ge«  < 
ueral  propositions : 

L  Whether,  upon  the  state  of  the  verdict, 
it  does  appear,  that  any  robbery  wai 
comuiitted  by  £lLig  aad  &elly  f 


T911 


27  GEORGE  II. 


II.  If  tliere  was  a  robbery  committed  bj 
them,  Whether  they  are  accessaries  in 
such  a  manner  as  to  be  liable  to  any 
judgment  against  them  ? 


I  shall  first  take  notice  of  the  otgections 
whicli  have  been  raised  against  the  defendants. 
And  I  6nd  it  is  chiefly  insisted  on,  That  the 
jury  having  fonnd  the  record  ;7n>uf,  is  sufficient 
proof  that  there  was  m  robbery ;  and  that  the 
defendants  are  thereby  estopped  to  say  the 
contrary. 

I  admit,  that  the  rules  laid  down  relating  to 
estoppels  shall  prevail  at  law.  But  it  is  as  to 
the  extent  of  those  rules  wMdf  I  contend  for ; 
and  I  insist  that  they  do  not  extend  to  parties 
that  are  not  privies  to  the  record.  The  reason 
of  the  rules  of  law  in  this  case,  is,  thai  there 
may  be  an  end  of  strife ;  for  the  witness  to  the 
record  might  be  dead ;  and  therefore  records 
■hall  bind  parties  and  privies,  but  shall  not 
bind  strangers.  There  is  another  reason :  par* 
ties  to  the  record  may  have  ah  attaint  for  a 
false  verdict,  on  the  modem  method  of  moving 
for  a  new  trial,  but  strangers  cannot. 

And  this  appears  from  Locke  and  Norbonne, 
5  Modem  141.  Trial  at  Bar  in  Ejectment  for 
lands  in  Wiluhire.    The  case  was  this : 

««  Mary  Philpot,  in  1678,  made  a  settlement, 
by  lease  and  release,  to  herself  for  fife,  then  to 
trustees  to  support  the  contingent  remainders; 
then  to  her  first,  second,  and  third  sons  in  tail 
male,  &c.  then  to  Thomas  Amndel  in  tail 
male,  &c.  It  was  objected  at  the  trial,  that 
■he  bad  no  power  to  make  such  a  settlement ; 
because,  in  the  year  1676,  her  husband  had 
■ettled  the  lands  in  question  upon  her  ibr  life, 
and  upon  the  issne  of  his  body,  &c.  and  for 
want  of  such  issue,  then  upon  George  Philpot 
In  tail  male,  with  several  remainders  over,  re- 
mainder to  Mary  Philpot  in  fee ;  proviso  that, 
upon  a  tender  of  a  guinea  to  George  Philpot  by 
the  said  Mary,  the  limitations  as  to  him  should 
be  void.  George  Philpot  having  afterwards 
made  a  lease  of  this  land  to  try  the  title,  the 
trastees  brought  an  ejectment ;  but  because  the 
tender  of  a  guinea  could  not  be  proved,  there 
was  a  verdict  for  the  defendant.'' 

And  now  Mr.  Philpot  would  have  given  this 
rerdict  in  evidence  at  this  trial,  but  was  not 
suffered  by  the  Court ;  for  if  one  man  hath  a 
title  to  several  lauds,  and  if  he  should  bring 
ejectments  against  several  defendants,  and  re- 
cover against  one,  he  shall  not  give  that  verdict 
in  evidence  against  the  rest :  liecause  the  party, 
against  whom  the  verdict  was  had,  may  be  re- 
lieved against  it  if  it  is  not  good,  but  the  rest 
cannot,  though  they  claim  under  the  same 
title,  and  all  make  the  same  defence. 

So  if  two  tenants  will  defend  a  title  in  eject- 
ment, and  a  verdict  be  had  against  one,  it  shall 
not  be  read  against  the  other,  unless  by  rule  of 
Court.  ^ 

But  if  an  ancestor  hath  a  verdict,  the  heir 
may  give  it  in  evidence,  because  he  is  privy  to 
it ;  for  he  who  produceih  a  verdict  must  be  either 
party  or  privy  to  it;   and  it  shall  never  be  re- 


Trid  ofWDavid  ani  Merif  [191 

ceived  against  different  persons^  if  it  dolh  Ml 
appear  that  they  are  united  lo  interest 

Therefore  a  verdict  against  A  Jhsll  Mvorte 
read  against  B ;  for  it  may  hapiMO  thet  eit 
did  not  make  a  good  defence,  wbicli  tbeetfRr 
may  do. 

If  upon  the  writ  of  Contra  Formam  Gala* 
tionis  a  recovery  is  had  against  tlie  abbel,  al 
a  Scire  Facias  issue  against  the  terre-tenuit^  IM 
is  not  concloded  by  any  trial  had  against  tM 
abbot,  2  Inst.  488.  [N.  B.  I  liave  losM 
into  the  authorities  quoted,  but  cannot  find  iiy 
thing  in  point] 

It  this  doctrine  which  the  gentlemen  lew 
laid  down  relating  to  estoppels,  and  that  aesM- 
saries  upon  their  trial  cannot  oontrovcrt  M 
robbery,  should  be  admitted, 

It  would, 

1.  Encounter  the  known  prindpioi  af  ifti 
tural  justice. 

2.  Be  contrary  to  the  prindplea  of  lafr,Ml 
tlie  practice  in  trials. 

S.  Contrary  to  authorities. 

Suppose  A  is  indicted  and  convictAd  of  Al 
murder  of  B,  and  C  is  afterwards  tried  SI » 
cessary  to  A,  and  upon  the  trial  the  piuhuMT 
brings  the  record  of  the  conviction  of  i, » 
prove  the  murder :  C  admite  that  he  dU  gM 
such  counsel,  but  that  it  was  never  exeeM 
for  B  is  still  alive,  and  oflers  to  bring  pntf  m 
it :  No,  say  the  gentlemen,  here  is  a  lesn^ 
which  says  he  was  murdered,  and  resMdica* 
notbe  contradicted ;  therefore  C  most  be  hH^ 
ed.  If  this  is  the  law  of  England,  it  is  di* 
trary  to  the  law  of  God.  But  it  mav  be  mH, 
that  in  such  a  case  the  crown  would  puim' 
but  that  is  a  favour.  Mercy  is  the  kings  fi* 
vilege,  and  the  brightest  diadem  he  wsin; 
justice  is  the  peculiar  attribute  of  the  law. 

The  same  doctrine  with  that  I  have  liil 
down  holds  with  those  who  are  to  briof  • 
writ  of  error  j  for  none  can  bring  a  writ  ■ 
errnr,!)^,  i.  Parties ;  2.  Privies ;  S.  TIicib 
who  may  receive  any  advantap^e  from  the  it- 
versal  of  the  judgment :  hut  it  is  contrarj  M 
the  rules  of  law,  to  assign  error  contrary  ti 
what  appears  upon  the  face  of  the  record,  1 
Rolle's  Abridgement,  747,  1,  2, 3,  4.  DyerW. 
5  Coke  39.  b.    GodlK)lt  377.     1  Leon.  S6t. 

The  great  object  of  the  law  is  to  protect  ih 
innocent ;  the  punishment  of  the  guilty  is  wlf 
so  far  observed,  as  it  tends  to  protect  ine  ioiM- 
cent ;  every  thing,  iherefone,  which  If ndi  • 
destroy  the  innocent,  is  against  law.  8o  f^ 
cords  are  often  the  eflRecU  of  perjury;  •>* 
those  who  are  guilty  of  perjury  may  betrH 
notwithstanding  the  reconi  is  not  reversed,  h 
for  instance,  A  is  indicted  for  assaulting  B. 
To  prove  the  assault,  J.  S.  is  called  as  a  wit- 
ness, and  he  swears  he  saw  it:  atlerwanls  B 
indicts  J.  S.  for  perjury,  which  inditimentictt 
forth,  that  there  was  such  an  indictment  famd 
against  A,  &c.  and  that  he  was  found  gnkj 


upon  it,  &c.  Upon  this  trial,  the  6rsl  thM 
produced  is  the  record  of  A*s  indictnpeot,  »w 
sets  forth,  that  A  was  indicted  and  Aaai 
guilty.    It  wonld  be  impoaaiMe  tliaraftr^  t^ 


at  A§emarki  to  a  Ttton^  de/bn  the  Fuel*         A.  D,  1755* 


[791 


I  III  Ihe  de>clrii)«  ihe  qpMitlemfii  hafe 

tfjtit  J  8.  could  be  tried  ;  lor  here  is 

2ys,  that  A  wiia  convicted. — 

^     ciiae,  (p.  283.)  a  case  which 

piieneil,  and  has  made  a  g^reat  deal 

\  concerned  in  \i  %  and  ujion  her 

r>rd  of  the  ccmviciion  of    Mary 

duced,  and  it  remaitis  stid,  and 

L  to  all  the  disadTantages  at- 

at  records  cannot  he  contradicted; 
i  ure,  as  m  the  case  put.  A  re- 
evidence  in  some  ch%en  ;  as  sup- 
\  case,  and  afterwards  fi  brings  an 
I  satne  tssauU  against  A,  who  has 
^  itidicted  and  convicted,  the  record 
ce.  f  <ipeak  this  with  trreat  de* 
I  your  lofdiihipi :  i  thiak  il  is  not  eri- 
Uf  1  am  sure  it  is  not  conc)nsiT«. 

\  why  accessaries  cannot  be  tried 

siptl  is  convictedf  is  this :    the  prin- 

knows^  whether  he  is  er^ilty  or  oo  \ 

rture  i.t  best  able  to  make  his  ifefence. 

|l  #^0,  Ihe  case  cited  from  Brooke, 

pt.  96,  by  Mr.  Eume,  hfti  an 

but  npfm  looking*  into  the  year 

tooe  it  is  abridi^d,  1  find  it  wilt 

urpose  it  ail  ;  and  as  it  is  a  case 

1  h^g  leave  to  mention  it 

^ted  the  Case,  quod  vidf), 

d»  That  it  was  sufhcient  to  say 
al  was  coof  icied,  not  that  the 
I  was  convicted :    the  reason  is, 
I  lb£  fure  of  Ihe  record,  the  coo- 
nnnaive  proof  of  it,  and  the 
eodeafour  to  acquit    himself 
'  denying  the  counsel  or  the  i^rincipal 

nd  it  ill  a  maVrm,  That  tn  all  spe- 
icu,  the  jodpes  will  only  jodf^  of 
jiir3r'  Hnd  in  their  verdict,  and  so  it 
ffUm  2  Adenine  Street tr,  RoberU. 
indirig  the  record,  is  no  proof  that 
■"leir  finding  in  of  the  fact  of  the 
the  record  :  and  your  lordBhiiMi 
froin  theocp  jml|fp  that  the  principals 
"  'd«  •nthcient  to  brin^  the  acce^ 
trial  The  mtestion  then  i*i,  Whe- 
■^*  f  efdict  tmtU,  that  any  felony 
"  Kdly  and  Ellis  f 
WiiviU  in  the  verdict  which 
i\  and  chuse  to  fay 
cd.'  The  office  of 
ihe  tact,  and  leave  the  law 
«f  the  Court.  In  9  Co.  69, 
,  exception  was  taken,  because 
d  by  the  verdict  that  the  said 
r/ifi^i  but;^frff/i/jl  only ; 
«/  .  r  th^  reawMi  sb*j»e.     If 

'nnici  will   not 
ny,  the  put- 
Tiui  niriKe  u  ^  ifMony*      Havinif 
let  of  these  iinnecei4Hiry  words, 
had  DO  right  to  ptft  io»  1  shall 
ofttorc  of  »  robbeiy ;  and  h«re,  ia 
"*'       •  robbery,  two  ituog:^  ire 


1.  Violence,  and  p^itting  in  fear. 

9.  A  taking  ai^aintit  the  will. 

If  either  of  these  are  wanting-,  there  is  ni 
robbery.  5  Inst.  6&.  Fear  constitutes  thi 
difference  between  a  robber  and  a  cut-purae«     i 

3,  The  taking  agiiost  the  will ;  for  volenti > 
nonfit  injuria.  So  Bractoo,  b.  3,  foK  150.  b. 
**  Furtutii  est  cotitrectatio  rei  alienee  fraudii> 
lent4«  cum  animo  fiiraodi,  invito  illo  dotnino^ 
cujiis  res  ilia  fuerit."^ 

Let  a  man,  when  he  parts  with  his  money  i 
a  robber,  be  asked,  U  he  ^ves  it  williugl^ 
No;  be  chiises  the  lesser  evil  to  avoid   the' 
g^reater,  and  had  rather  suffer  the  loss  of  hi#^ 
money  than  death. 

As  to  the  case  of  swearinif  to  put  money, 
iScc*  the  answer  to  that  it  ^veo  in  the  book. 
It  is  the  fear  and  the  oath  continuing,  which 
make  it  a  robbery :  suppose  a  man  did  not 
think  the  oath  obli^fatory,  and  had  uo  fear  upon 
htm,  then  I  apprehend,  my  lordtj  it  would  be 
DO  robbery* 

But  suppose  that  Salmon  was  put  io  fear, 
the  defendants  must  be  acquitted.  As  to  Sal- 
mon, the  jury  tire  ailcai  as  to  his  bein^  afraid  : 
they  have  in  fact  found  that  he  was  not  atraid,  be* 
cause  they  have  tbuod  the  fiACt  was  done  accord^ 
iitg  to  his  agreement.  Hut  the  putting  in  f«ar 
ought  to  be  Ibnnd  posHif ely,  or  to  appear  frois 
the  words  of  the  verdict. 

It  is  insisted  by  the  gentlemen  on  the  other 
side,  that  this  was  a  felony  to  which  l^mon 
was  accessary  before  the  fad  ;  they  might 
have  gone  a  little  further,  and  made  him  pnn- 
cipal,  as  aiding  that  counsel  which  he  had 
given.  If  principal,  he  might  have  been  in- 
dicted as  principal :  where  there  are  many 
principals,  each  is  a  separate  offence,  and  each 
may  ne  Mparately  indicted  :  if  so,  Halmon 
might  be  indicted  atone  (and  then  recited  part 
of  Ihe  indictment  as  it  would  stand  against  him| 
to  shew  the  absurdity  i>f  it). 

Whether  Salmon  consented  or  not  to  Blee, 
he  certainly  did  not  ti»  Kelly  and  EHis;  their 
intent  was  to  rob  a  man  ag:iinst  his  will,  and  tf 
8almon  did  consent  to  be  robbed,  it  could  be  no 
robbery. 

Mr,  Hume  insisted,  that  nothing  apjiearedtfi 
the  verdict  contrary  to  the  record  of  conviction. 
But  there  cerihtinly  is,  for  it  6rst  finds  a  rob- 
bery, and  afterwards  linds  ^ucli  circam9tan<«i 
as  make  it  imposHible  there  should  be  a  roliKery. 
And  Hobart  63.  Foster  and  Jackson «  Hhercf^r 
a  jury  begin  with  a  dirtict  and  end  with  a  S()«- 
cial  matter,  whK-h  is  either  contrary  to  their 
verdict  or  to  Uw,  the  spe^'ial  natter  shall  orcr- 
rule  thei^eiiernl. 

1  Inst.  2^7,  a.  and  4  Co,  53»  HawWs  oase. 
The  Court  held,  that  the  jury  being  sworn 
*  ad  v<Tilntem  diceodam/  mutt  k^ave  the  matter 
oi*  law  to  thi;  Court ;  and  if  the  jury  find  an 

*  Bractoo  adds,  "  Cum  ant  mo  dico,  quia  aine 
animo  furandi  noo  committitnr,  sc.  furtuna/* 
Q,,  Whether  the  animui  furandi,  which  is 
agreed  on  all  sidtm  to  have  been  in  Kelly  and 
ElUi,  wiil  not  coustttuie  ihkfuriumf 


I 


795] 


£7  GEORGE  IL 


estoppel,  the  Coort  will  not  regard  it,  bat  will 
judge  upon  the  special  matter. 

Every  (kd  foand  by  the  jury  ought  to  be 
Attended  to,  your  lordships  see,  even  in  dis- 
putes relating  to  property ;  Ood  forbid,  that  in 
favour  of  life  an;^  should  be  neglected. 

If  the  conviction  of  Ellis  and  Kelly  be  any 
proof  of  a  robbery,  then  the  jury  have  found 
the  record  one  way,  and  the  fact  another. 

]  come  now  to  the  second  question ;  which 
is.  Whether,  supposing  a  robbery  to  have  been 
committed,  the  defendants  are  accessaries  in 
such  a  manner  as  to  be  liable  to  any  judgment 
against  them  ? 

If  Blee  was  no  accessary,  the  defendants 
^nnot.  In  reality  this  was  a  felony  com- 
mitted by  Ellis  and  Kelly  spontaneously,  and 
without  any  occessary  at  ail.  In  order  to  make 
this  a  rolibery  by  procurement,  these  three 
things  are  necessary  to  be  proved : 

1.  That  this  was  the  very  robberv  which 
Bfee  undertook  to  procure  Kelly  and  Ellis  to 
commit* 

a. 

3.  Whether  the  defendants  are  within  the 
statutes  of  Philip  and  Mary. 

The  question  is,  whether  Blee  procured 
Kelly  and  Ellis  to  commit  this  robbery  ?  And 
here  I  must  observe,  that  the  word  *  procure'  is 
the  most  general  of  all  those  applied  to  acces- 
saries :  but  it  is  plain,  he  did  not  procure  them 
to  commit  this  robbery,  but  to  stod  linen  ;  and 
whatever  was  inten((ed  by  Blee,  cannot  fall 
under  consideration. 

There  is  a  distinction  between  procuring  an 
act  to  be  done,  and  procurin£[  the  persons  to 
commit  it  As  for  instance,  if  I  am  walking 
in  the  street,  and  designedly  let  my  handker- 
chief hang  out  of  my  pocket,  in  order  that  it 
may  induce  somebody  to  pick  it ;  here  I  could 
not  be  said  to  procure  the  persons  to  commit 
this  felony,  but  the  felony  to  be  committed. 
The  act  intended  to  be  committed  must  be  com^ 
municated  to  the  parties  who  are  to  commit  it. 
And  whether  the  defendants  intended  that 
Kelly  and  Ellis  should  steal  linen  or  no,  they 
were  originally  actuated  by  such  a  disposition, 
and  this  robbery  was  committed  without  any 
previous  intention  of  Kelly  and  Ellis,  and 
therefore  there  can  be  no  accessaries;  as  in 
manslaughter  there  are  no  accessaries  before, 
because  the  nature  of  it  implies  that  it  was  done 
without  premeditation  or  design :  therefore  if, 
upon  an  indictment  for  murder,  the  principal  is 
convicted  of  manslaughter,  the  accessary  is 
ipso  facto  discharged,  Moore  461,  Goose*scase. 
4  Co.  44.    1  Hale's  P.  C.  437. 

But  let  us  consider,  whether  the  defendants 
are  within  the  statutes  of  Philip  and  Mary. 

The  word  '  procure'  is  put  into  the  second 
count ;  and  if  the  defendants  are  at  all  guilty, 
they  areguilty  of  ail. 

The  word  '  procure,'  which  is  not  in  the 
statutes,  is  added  U»  some  words  which  are 
in  the  statutes,  and  if  the  defendants  merely 
procured,  no  judgment  can  be  given  against 
them  upoD  ttua  indictment:  for,  if  they  pro- 


Trial^M*DanidandoaerS9  [796 

cured  without  eounielliiig,  tbey  will  MtcsM 
within  the  statute. 


Judge  Fotter  observed,  that  the  word  *  pi^ 
cure'  was  in  all  the  precedents  of  indidnaik 

Seij.  Davjf.  I  admit  the  case  which  wmU 
down  relating  to  the  ooBStmction  of  ilatBlH^ 
which  being  made  for  the  pablic  food,  ihiNli 
be  constru^  for  the  puUio  good. 

But  statutes  now  shall  have  a  Tciy  path 
cnlar  construction. 

It  is  going  a  great  way  to  eitend  penal  H^ 
tutes  to  operate  capitally. 

Greville's  case,  1  AnderMO  104,  ia  difltnA 
from  this ;  the  words  there  were  *  eaald! 
« movetl,'  and  *  procured ;'  and  the  jodgM^ 
was,  that  it  included  *  eounael'.  Sqppoie  * » 
cited'  and  <  moved'  had  been  out,  the  CmI 
would  not  have  given  the  saHieopinioooiii 
word  *  procure.' Counselling  ia  but  oaosmh 
of  procuring,  which  is  the  genua  ;  and  tti^i 
fore,  by  this  way  of  reasoning,  he  tbalitgri| 
of  the  species  is  guilty  of  the  genua. 

There  are  many  ways  of  comuelKiig  wii- 
out  procuring ;  Blee's  procuring  caDDol  he  » 
tended  to  mean  the  defendant's  procuring. 

It  will  be  proper  to  review  the  fhcts  ailhf 
stand  to  each  count. 

The  general  question  is,  who  moved  fiki 
defendants  did  not  i  for  they  had  no  oohmhSf 
cation  with  either  Kelly  or  Ellis,  by  any  iNf 
whatsoever.  If  Kell;^  and  Ellis  had  taa 
asked.  By  whose  advice  are  you  dougllil 
felony  ?  the  answer  would  have  been.  By  BH 
not  by  the  defendants.    Blee  advises  thsBti 


steal  linen,  and  the  defendants  advised  Blst  H 
be  an  accessair. 

I  admit  all  5lr.  Hume's  doctrine  relativ  H 
signs,  messages,  &c.  The  meaning  oTlhs 
counsellor  must  be  conveyed  to  the  perpetnlv 
of  the  fact,  and  the  consent  must  be  in  eomt 
queuce  of  the  advice,  in  order  to  make  him  i 
commander,  adviser,  and  counsellor :  so  tM 
Tarquiu's  case  does  not  come  up  to  this  cue. 
The  slave  was  the  passive  instrument  tocoawy 
Tar([|uin's  mind ;  out  here  Blee  gave  Bkn 
advice.  Who  did  procure  P  The  answer  i^ 
Blee.  If  a  stranger  had  advised  Tarquin,  wooU 
he  have  beea  accessary  to  Sextus?  There  ii  a 
difference  between  *  advising'  a  thing  to  be  dose, 
and  *  procuring*  it  to  be  done.  The  words  of 
the  statute  are  applied  to  advising  any  peisM 
to  commit  a  felony,  not  any  felony  to  beoon- 
mitted.  The  defendants  counselled,  befoif 
any  persons  were  fixed  upon. 

The  act  of  forgery  is,  whoever  shall  forfe^ 
or  procure  to  be  forged,  or  assist  [in  procariig] 
to  be  forged  ;  if  procured  the  forgery,  he  iii 
principal;  if  procured  a  person  to  commit  tbi 
forgery,  an  accessary. 

Jenkins  only  meaus  the  receiver. 

If  all  the  intermediate  persons  are  to  be  OOH 
sidered  as  accessaries,  then  it  will  be  propsr  » 
consider,  whether  the  defendaota  did  advise  s^ 
felony  to  be  committed.  The  agreement  weii 
that  they  should  rob  Salmon,  who  aginei^iiM> 
it  should  be  done,    Sabnon  could  not  baisW 


W]  «  Ateeaaries  to  a  Tehny  lefon  tie  Fact 

\f  bci  own  consent.    This  docs  not  refer  to  the 


D.  1755. 


but  ir  lUen^  was  a  robber3%  the  felony 
liie  Dtrrtrinenl,  far  no  felony  was 
Mmd  to  be  done ;  only  the  appearance  of  a 
fdooVi  wbtct]  tlio-ie  who  did  it  sliould  appre- 
bofl  was  a  felony  \  and  that  they  mif^ht  arail 
lelYei  of  that  appearance,  «tiher  the  gocHls 
likeo  from  SaJmoii  were  taken  agaiust  hb  will, 
trntt. 

If  i|^iiist  hit  will,  it  was  different  from  the 
i|veementt  which  was,  that  he  should  pan 
vib  tbeoi  willingly :  if  not  ap^aiiist  his  will, 
lba«  could  be  no  felony.  I  admit  that  8al- 
aon  nitght  be  in  fear,  if  they  had  taken  more 
tbn  he  agreed  to  part  with  ;  but  co  instante 
tbit  liin  Will  departed  from  him,  there  was  a 
departure  frum  the  agreement;  this  extends 
l»  ill  the  defendants. 

Ai  lo  ihe  case  of  Abab  and  Jezebel,  which 
t9f  iMrned  friend  ciie<l,  however  guilty  they 

ly  have  been  deemed,  they  are  certainly  not 

MHiies  according  to  the  law  of  England  ; 

D9rdiiii|^  to  'which  kw  the  defendants  are  to 

Mr.  Ailon^  on  the  same  side.  I  also  have 
tWbonour  of  being-  appointed  by  your  lordships 

oiiinvcl  for  the  derendant<f ;  and  here  I  can- 
BM  but  observe,  how  tender  the  law  is  in  fafour 

lbs  worst  of  men,  that  it  allows  them  to 

hi  use  of  suhtiltiei  before  such  an  august 

Man  I  conitder  the  ar^roeut  made  use  of 
ibt  ^ittemen  on  the  other  side,  I  shall  just 
■tM  tn  objection  upon  the  face  of  the  in- 
Imcol,     Hy  the  common  law,  an  accessary 
OQc  county  could  not  be  tried  in  another : 
ifOt  by   2  Edw.  6,  c.   34,  accessaries  may  be 
'  iQ  that  county  where  tlie  offence  of  ac- 
wai  committed,  9  Co*  118,  a.     It  is 
forth  in  the  indictment,  that  the  fact 
oooitnitted  in  Kent,  only  that  the  party 
inilict4^d  there ;  and  the  defendants  are  to 
if  tried  Uy  Ibis  jury,  not  by  the  jury  of  £llis 
^  id  Kelly, 

1  ih&ll  consider  three  things : 

Firttf  tt  is  said,  That  the  defendants  must 

ioownries  to  the  offence  which  was  com- 

lu  answer  to  which, 

L  This  ferdict  does  not  find  any  felony  or 

rah6ery,  which  can  make  the  defendants 

iceamries   to   any   felony   or   robbery 

Rhftrtfrd  in  the  indictment. 

9,    '  tdants  were  not  estopped  from 

«  ii«g  the  fact  of  the  robbery, 

Z.  byp(>o«ing^  the  felony  and  robbery  snfH- 
ciently  found,  it  is  not  sufficiently  found 
10  DiiJce  Ibe  defendftott  accessaries. 
thm  Mm^  mod  abetttog  it  a  matter  of  fact, 
^^'^  tbb  jury  ought  to  find,  which  they  do 
i  sera  find. 

I  atoU  that  the  jury  have  properly  found 
^l^nBord  prout.    The  jury  must  proceed  to 
thm  f&ets,  wbtch  make  the  defendants  ac- 
rtei,  and  iU*'  iiiiiiiiig  must  he  of  the  actual 
«Wif  laid  m  the  iniliclmeni*    There  is  uo  tmie 
vmi  wiuso  Kftlly  and  Elltt  committed  the 


robbery  on  Salmon  ;  it  may  be  afler  the  rob- 
bery on  which  they  were  convicted.  Pulton, 
de  Pace  138,  defines  a  robbery  to  be  the  felo- 
nious taking  away  any  thing  from  the  persoo 
of  another  against  bis  will.     Fitz.  Coron.  tl5. 

The  case  of  the  King  and  Belch i^r,  which 
Mr.  Uume  mentioned,  was  put  out  of  doubt  by 
the  jury  findiog  him  guilty  ;  therefore  he  was 
put  in  fear,  which  is  essentiut  to  constitute  it  a 
robbery,  as  appears  1  Hawkins,  96,  9T.  Halt 
KC.  554,  Dyer,  324.  Keyling,  70.  3  Inst. 
68.  Puhon,  1S8.  By  the  omission,  the  na- 
ture of  the  offence  is  varied  \  it  must  be  ex- 
pressfy  found  thnt  he  was  put  in  fcar»  other* 
wise  it  will  be  no  robbery. 

As  to  the  case  of  swearing  to  put  money. 
Pulton,  J 211|  sect  !28,  givea  the  reason  why  it 
is  deemed  a  robbery  ;  because  (says  he)  it  is 
against  his  wilL 

The  verdict  cannot  be  helped  by  anv  intend- 
ment, s  Hawkins,  47,  9.  King  and  Plummer. 
Keyling,  111.  But  it  is  said,  that  the  jury 
having  found  the  record,  it  operates  by  way  of 
estoppel*  But  the  record  fbund^  and  the  tact 
fount],  may  stand  consistent  with  the  subtle 
doctrine  ol  estoppels.  Therefore  I  will  lay  all 
that  out  of  the  question  ;  for  oiithing  can  be 
implied  in  this  case.  The  jury  have  found 
facts  which  must  speak  for  themselves:  tha 
jury  have  only  found  the  record.  The  reconi 
of  conviction  is  not  falsiticd ;  but  the  cbargo 
upon  the  fact  is  not  sufficiently  proved,  and  the 
accessary  has  a  right  to  controvert  the  rub- 
bery ;  and  there  are  instances  where  accessa* 
rfes  have  been  ejcecuted  before  the  conviction 
of  the  principal,  and  upon  the  principal's  com- 
ing home,  found  innocent,  9  Go.  119,  b.  Pul- 
tou,  140  <1,  gives  the  reason^  because  the  parly 
has  waived  that  tiririlege  the  law  gives  him. 
Accessaries  may  be  indicted  with  the  principaJ, 
and  in  the  same  indictment^  and  then  the  jury 
is  first  asked,  Whether  the  principal  is  guilty 
or  no?  But  they  may  be  mdictefl  separate'; 
and  Plowden,  100,  says,  might  have  separate 
Venires. 

The  conviction  of  the  prtncipal  is  only  lo 
substantiate  and  warrant  the  Court  to  proceed 
to  the  trial  of  the  accessary :  in  the  present 
case,  this  indictment  statiug  this  conviction  ia 
no  more  than  a  mode  Docessary  to  found  this 
trial :  it  proves  no  guilt,  only  is  intetided  to 
try  guilt.  There  must  bo  proof  of  the  procure- 
ment of  the  act,  and  of  the  doing  the  act  in 
consequence  of  that  procurement. 

The  defendants,  in  general,  may  pre  every 
thing  in  evidence  which  will  shew  tneni  to  (4 
not  guilty  of  the  charge:  what  theo  is  so  proper 
as  to  shew  tlif  re  was  no  felooy  committed,  and 
therefore  not  guilty  of  being  acccaaarieaf 

Wherevi*rapla(iitiif  brings  an  action  to  de* 
feat  a  record,  he  is  not  estopped  by  the  record. 
Whenever  a  record  is  ma^le  use  of  to  found  a 
ciiarge,  the  defendant  may  make  aae  of,  and 
giro  evidence  against  it.  6  Mod*  fl6,  Cro. 
Car.  531. 

Verdtcta  mav  be  defeated  in  their  operatioo. 

fe^upposiog  this  felooy  it  iofficiaotly  foood^ 


799J 


27  GEORGE  II. 


Trial  ofM'Danid  and  other 


: 


yet  it  ii  not  fonnd  so  as  to  make  the  defen- 
ilaots  ttccfssaries.  Tb>s  wiil  depend  oa  the 
ttiture  of  aueessartes,  and  what  privity  ih^re 
muat  be  between  the  priocipal  atid  accessary, 
aod  linw  fav  ti  19  neceaaary  the  act  agreed  lo  be 
dooe  s!muld  be  done.  In  order  to  make  an  ac- 
eesBMry  before  the  fact«  tbe  aaaeat  must  be  ex- 
pmsand  Bhewti^  Cro.  Etiz,  540.  pi.  4. 

All  tbe  cases  ofTarqiiin  carry  tbe  cooimu- 
incfttion  borne  to  tbe  priocipal.  And  so  in 
Sfttmdersand  Archer's  ca^e,  Plowden,  476 ,  the 
judges  nudy  that  Arclier  was  not  g^titliy  of  be* 
ing  accessary  to  tbe  death  oftbe  child)  aa  there 
was  no  communication  by  words  between  biw 
and  Saunders  conceroiag  tbe  child,  only  con^ 
oerning  the  wife. 

And  that  the  felony  intended  must  be  com* 
nmnicatedf  appears  titrther  from  Popham^  143. 

Suppose  a  man  sends  a  letter  to  A,  coun* 
celliug  him  to  kill  B;  bat  A  does  it  before  he 
receifes  the  lefler  ;  here  tbere  is  nocommuni* 
t;atioD,  and  60  be  it  not  gutily  of  being  aeoe»- 
iary* 

S.  The  act  committed  mutt  be  tbe  same  as 
irms  agreed  to  be  done,  or  in  consequence  of 
that  agreement,  as  in  Saunders's  cafie,  i'iowden , 
475,  There  was  no  persuasion  to  induce  Ellis 
and  Kelly  to  commit  ihe  robbery  on  Halmon  ; 
for  the  verdict  says,  tbey  were  never  told  of 
that  being  the  robbery  intended. 

The  procurement  then  was  only  to  commit 
larceny  ;  and  it  was  contingent,  whether  grand 
or  petil  larceny  ;  for  it  depended  on  the  taluc 
of  the  goods  they  took.  As  to  what  Mr.  Ilutne 
■aid,  that  stealmg  bnen  was  the  arti5ce  by 
which  Ellis  aod  Kelly  were  to  be  entrapped"; 
it  m  tint  tound^  that  it  was  the  artitice. 

Dut  lastly  I  Tbere  is  a  case  founded  on  very 
great  autfaority,  ^  Lord  Raymond^  1574,  158(3, 
tbe  KJng  against  Muggins,*  where  it  is  said, 
that  the  aiding  and  abetting  is  a  matter  of  faci, 
and  must  be  Ibund  by  the  jury,  and  not  lefi  to 
the  Court:  satue  case,  2  Slrange,  885,  6.  Tbe 
Court  there  said,  We  are  to  determine  upon 
facts,  not  upon  the  cTideuce  of  facts.  It  must 
be  expressly  found  that  tbey  have  aided  and 
•betted. 

When  a  person  is  ousted  of  clergy  by  act 
l>r  parliament,  two  things  are  necessary  : 

1.  Thai  the  indict meot  precisely  brinjrs  the 
party  within  the  statute ;  otherwise^  though 
possibly  the  fact  itself  may  be  within  the  sta- 
tute, and  it  may  so  appear  upon  the  evidence  ; 
yet,  if  it  he  not  alledged  in  the  indictment^  the 
parly^  the  convict,  shull  have  his  clergy, 

S.  If  the  fact  laid  in  tbe  indictment  does 
come  within  Ihe  statute,  yet,  if  upon  the  evi- 
dence, though  it  is  a  felony,  it  appears  not  to 
be  so  qualitied  as  laid  in  the  indictment,  ihe 
jury  ought  to  find  him  guilty  of  the  felony 
only,  but  not  in  the  mnnner  lutd  iu  the  indict - 
men  I ;  as  tor  instance,  guilty  of  the  felony  i 
but  not  of  the  robl»ery ;  and  thereupon  the 
prisoner  bbaJI  iiAve  his' clergy,  9  Hale  F,  C, 
236, 


tH^  it  ill  this  CoUcctioQf  rot  17,  p«  S98. 


Mr,  HumeU  R^plj* 

It  IB  now,  my  brds,  iDQUinbcat  opaci  Mt^iti 
this  ease,  ulf  so  grcut  iiopartance  \Qjkm  i 
fend  ants,  ibe  law,  and  the  public^  1 
thing  to  your  lordsbipa  by  way  of  1 
shall  beg  leave,  therefore,  brat  of  all,  lol 
objections,  wbkb  were  atartcd  by  Mr*^ 
out  of  tbe  case  *. 

1.  To  the  form  of  tbe  indict ment, 
ihe  queslioQ  now  is  Dot  in  arvesli 
ment. 

3.  The  last  objections  from  theeamtioii 
King  and  Flummery  aod   llie 
Huggins. 

I  admit  ihat  the  jury  are  to  find  ( 
jury  tind  that  tbey  aided  ;    ibis  is 
they  were  accessaries,  and  so  there  t 
nec^d  of  a  special  verdict.      Ttie 

diet  is  only,  that  the  judges  may  ,, 

whether  what  tbey  have  found  wilt  inakell 
accessaries  or  no.' 

I  shall  Hrst  consider  what  is  to  be  ibei 
of  ihe  record  of  conviction.     It  chay  havet 

1.  It  may  be  decl$iive  and  conclustve,  tat 
spect  to  all  the  defendants,  of  ih^  \*TitiOp 
leJony  existing,  and  said  to  tie  cdtDd 

S.  It  may  be  evidence,  on  the  pari  all 
crowo^  of  tbe  fact,  sui^cieiit  to  prove  ike  i 
&c.  thereby  rendering  it  necessary  tor  tbe  i 
feodants  lo  prove  tbe  contrary* 

I  lay  out  of  ibe  case  alt  ikat  was  said  sf  li 
cases  where  records  are  no  evidence  at  all ;  f 
here  tbe  record  is  evidence  le^^al  aod  ds 

Mr.  Aston  seemed  to  coDleod,  tbat  tbe  i 
cord  might  be  evidence,  hut  siK*h  as  lot 
the  onus  probandi  on  tbe  defeudauts. 

1.  As  lothe  principars  being  coavieiedl 
all  the  indictments  ure  in  tbe  present  form. 

The  defendants  must  give  ttist  in  erii 
accordiug  to  the  nature  of  evideooe,  aod  i 
as  Ihe  Uw  will  admit,     if  ihe  r^eoH  «(l 
eouvictton  is  suliiciebi  to  support  Ibe  \ 
Ihe  defeadaats   eaauol  giwe    parol 
against  it. 

9.  Whether  it  does  not  operate  on  I 
of  Ihe  crown,  unless  any  evii 
again&t  it. 

If  the  defendants  bad  giveo  any  etM 
and  the  jury  had  been  of  optninn,   that  it  i 
peared  that  there  was  no  robUery,  ihe  jti 
would  hiive  directed  a  general  venitci. 
detendantK  ought  to  shew,  ibat  lliere  mi 
robbery  commuted  in  this  venlict.     L^ j 
then,  whether  or  no  there  is  a  robberyl 
It  is  found,  that  the  good»  were  taken  / 
sault,  and  telouiously :    it  is  ooi  fouod,' 
be  consented  to  deliver  the  goods.      H«»w  < 
Nalmon*8  agreement  at  Ihe  Bell  be  taki«tt 
go  to  an  aucr  time  in  tbe  high  road,  llnl  1 
did  assent  lo  be  robbed  f  This  wottkl  ba  1 
Iradictory  to  tbe  verdict. 

Your  lordships  are  to  take  tbe  robbery  U  t 
time  of  tbe  commitment  of  it  ia  tba  ' 
way,  oud  to  consider  whether  ii  is  fans 
Salmon  was  robbed  voluuiai  d  v ,  kupp 
was  a  robbery  committed    by  ibein* 
defeadiots  saw  lielly  aud  ElUs,  bol  I 


nV}         4U  Acceaaries  to  a  Felony  before  ike  Fact.  A.  D.  1755. 


[80* 


II  iMit    If  SaJmoTi  wat  put  in  fear,  lay  a  the 
•eijeftot,  it  wvs  tiat  what  he  agreed  to ; 
Ir  tiMtKVteaieot  was,  thai  he  should  be  robbed 
'  tBltrtly.     Now  the  fact  ivas*  that  not  know- 
the  persons  who  were  to  rob  him,  upon  be- 

RB»?iJ  a  little  miighly  by  thenif  he  trembled, 
aaid,  Take  what  I  hate  got,  gentlemen, 

oaU  use  noe  ill. 

Tlie  caaet  cited  by  the  Serjeant  and  Mr. 
dOD  pro? e,  that  Salmon  could  not  be  a  priu- 

|mJ  tA  a  robbery  upon  himseU';   yet  he  may 

t  an  aooeaaary  to  that  robbery  which  wai 

lolled  at  the  Bell. 

tf  Kelly  aod  Ellis  had  itoleD  the  linen,  the 
fcndaiila  wauld  not  hare  been  aocesaanas, 
eause  that  wat  not  the  fefony  plotted. 
There  may  be  accessaries  without  comma - 


JttHoii  hy  prvrky,  astent,  and  concent :   are 
MM  dcfoiidftDta  accessaries,  <  auxilio,  vel  pre- 
rtl  maadato  ?'    and  though, '  delegatus 
delegare,*  yet,  *■  qui  fucit  per  aTiuoii 
;  :*    and  so  all  the  links  of  this  chain 
4:    file  whole  chain   hangs  together, 
iMltohips  cannot  separate  it.      If 
ikei  a  man  accessary,  did  they  not 
*  ig  IB  neoeasary,  did  they  not 


>ecembeT  1755,  at  the  Old* Bailey  act* 
'  rr>ster  pronounced  the  Judgment 

::  the  Case  between  the  Kitig  and 
mti  and  others,  to  the  eflect  following : 

iiodiotmeAtcharireth,  that  at  the  general 

elbery  held  at  Maidstone  in  the  county 

_  tit,  00  the  13th  of  August,  in  the  28th 

raf  the  king,  Peter  Kelly  and  John  Ellis 

iirtre  by  due  course  of  law  convicted  of  a  fe* 

'  loy  atid  rubbf  ry  committed  by  them  in  the 

I's  bi^liway  in  the  parish  of   St,  Paul, 

'  ,    of  Kent,  upon  the 

.  one  of  the  prisoncn 

,  oar  J    anti  liiul  I  be   prisoners  Stephen 

uel,  John  Berry,   James    £gao,    and 

Itklmon,  be  lore  the  said  robbery,  did,  in 

ifh  of  St.  Andrew,  llolborn,  in  this  city^ 

Piwiy  and  maliciously  comfort,  uid,  asiist, 

oiinftct,  hire,  and  (!«>mmand  the  naid  Peter 

f  and  .h>]m  Ellis  fo  commit  the  said  fie' 

'-y» 
M  ameot  the  prisoneri  hate  been 

i  ibejury  have  found  a  special  verdict 


Kelly  and  Ellis  were  by  due  eoDrte  oC 

tcted  of  the  said  felony  and  robl>ery« 

before  tlie  robbery,  all  llie  priaouers 

Thomas  Blee,  in  order  to  procure  to 

ea  the  rewards  given  by  act  of  psr- 

fbr  afMireheotHog  robbers  on  the  high- 

^  tnalieioiitiv  and  lekmiou%ly  meet  at 

III  flalborfi  in  this  city  ;  and  did 

tipree,  that  the  said  Thomas 

rKwra  two  persons  to  commit  a 
highway  m  the  parish  of  St. 
At  ti[Km  the  person  of  the  pri- 


bt  hir  thai  pitrpoae  they  did  «il  mill* 
>Lu  MX. 


*  cioii&ly  and  feloniously  contrive  and  agree, 
>  that  the  said  Blee  should  inform  the  persons 

*  so  to  be  procured,  that  he  would  assist  them 
^  in  stealing  linen  in  the  parish  of  St.  Paul, 

*  Deptford. 

*■  That  in  porsnance  of  this  agreement,  and 
'  with  the  privity  of  all  the  prisoners,  4he  said 

*  Blee  did  engage  and  procure  the  said  Ellis 

*  and  Kelly  to  go  with  him  to  Deptford  in 
'  order  to  steal  hnen  ;  but  did  not  at  nny  time 
'  before  the  robbery  inform  them,  or  either  of 

*  them,  of  the  intended  robbery. 

^  That  in  ci>n6ef{uence  of  the  said  agreement 
'at  the  Bdl,and  with  the  privity  of  all  the 

*  prisoners,  the  said  Ellis  and  Kelly  went  with 
^  the  said  Blee  to  Deptford. 

'  That  the  said  Blee,  Ellis,  and  Kelly  being 
'  there,  and  the  prisoner  Salmon  being  Uke- 
'  wise  there  waiting  in  the  highway  in  pursu- 

*  anoe  of  the  said  agreement,  the  said   Blee, 

*  Ellis,  and  Kelly  feloniously  assaulted  him, 
'  and   took  from  his  person  the  money  and 

*  guods  mentioned  in  the  indictment. 

^  They  further  find,  that  none  of  the  pri- 
'  Sonera  had  any  conversation  with  the  said 
'  KIlis  and  Kelly,  or  either  of  them,  previous  to 

*  the  robbery.  But  they  tind  that,  before  the 
*■  robbery,  the  prisoners  ^PDaniel,  Egan,  and 

*  Berry  saw  the  said  Ellis  and  Kellvi  and  ap- 

*  proved  of  them  as  persons  proper  ior  the  pur* 

*  pose  of  robbing  the  suid  Salmon.' 

But  whether  the  prisoners  are  guilty  in  man- 
ner as  charged  in  the  indictment,  they  pray  the 
advice  of  the  Court. 

This  special  verdict  huth  been  aligned  before 
all  the  judges  of  England,  and  two  questions 
have  been  made. 

First,  Whether  it  appeareth  from  the  facts 
stated  in  the  special  verdict,  that  any  robbery 
was  committed  by  Ellis  and  Kelly  on  the  per- 
son of  James  Salmon. 

Second,  Supposing  that EHis  and  Kelly  were 


Court  in  psssing 
jud;rnient  upon  the  prisoners,  or  any  of  themi 


l^ilty  as  principals  in  the  robbery,  whslfier  the 
tacts  found  will  warrant  the  Cour 
jud;rnient  upon  the  pri 
upon  this  indictment  ? 

The  second  puint  secmeth  to  have  been  the 
doubt  on  which  the  jury  pray  the  advice  of  the 
Court ;  and  1  have  reason  to  believe,  that  when 
it  first  came  to  be  considered,  it  was  matter  of 
great  doubt  with  sume  gentlemen  of  the  pro- 
fosaion,  whose  abilities  were  never  yel  ealled  ift 
questk>n. 

For  which  reason,  and  because  the  law 
touching  ooceasaries  before  the  fuct  is  •  mat- 
t^  of  great  and  very  exten^iife  coii^ti^uettce  to 
the  justice  of  the  kiugdoin,  and  ou^ht  In  be 
well  umlersiood,  1  will  driiter  my  iboughU 
up<>n  theseoood4|uest»tko,  before  I  come  to  that 
which  wiUfinaMy  govern  the  prrsent  iMiie. 

Ai  to  thr  primiiuT  SafmrMi,  tli**  jud^fes,  upon 
oonHiderstiiMi  of  tbtti  Hficciat  ferdiri,  ure  imam- 
mouifly  iif  iipini<in,  ih'<t  Uf  cannot  br  guiUy 
witiiin  thi«  iodicrmeni :  for  unleas  he  was  party 
to  the  agreeitient  at  the  liell,  three  can  M 
no  c«d(Kir  to  involve  him  in  the  guilt  of  EUii 
and  Kelly. 

3F 


4 


803] 


«7  GEOnGE  11. 


Trial  of  M^ Daniel  and  aiheri. 


[B04 


And  on  ilie  otber  lidud,  if  be  did  ^art  wilh 
bis  money  auil  goods  in  ciiusequpnce  of  ibat 
ji^r^tiienr,  ii  cannot  lie  iSaIcI  ilial.  in  liberal  enn^ 
struclioii  be  \%iis  robl>eil  at  d t ;  since  it  h  uf 
the  es(»euce  of  lulHiery  aud  larceny,  that  llie 
goods  be  taken  against  the  i^ill  of  ine  owner, 

Tbepe  Mras  a  late  case  (Belebier  and  Nor* 
lob*»)  died  io  I  lie  argumenr  on  the  part  of  the 
crovvn,  \f  hich  1  shall  consider  by  and  bye,  and 
distinguish  irom  tlte  present. 

Jt  bulb  been  btild,  (CronjjK  Just.  41.  k  ph 
4,  5.)  tind  I  think  riglitly,  that  a  man  may 
Ennke  himself  an  accessary  after  the  fact  to  a 
larceny,  of  bis  ow  n  goods,  or  to  a  robbery  on 
birmeU,  by  barbouriog  or  coocealing  tbe  luief, 
orasii»tmg  in  bia  ectcape. 

And  under  some  circufnataaces  a  man  may 
be  {Tuilty  of  larceny  in  ateahng  bis  own  good^v 
or  of  robbery,  in  taking  Ins  own  property  from 
tbe  prson  of  another.  A  delivereth  goods  to 
B,  to  keep  for  him  (l  Hale  513.)  and  then 
stealelh  therrif  uiib  intent  to  charge  B  vrith 
the  ralue  of  tliem,  (Sianf.  26.  A.  3  Inst  110.) 
Ibis  would  be  fdouy  io  A.  Or,  A,  having  de- 
ijrered  money  to  his  sertant  to  carry  to  sonne 
distant  place,  di^guifletb  bioiself  and  robbeth 
the  servant  on  the  road^  ivitb  intent  to  charge 
tbe  hundred,  ibis^  1  doubt  not,  would  be  rob- 
htry  io  A, 

For  in  these  c&se9  tbe  money  and  goods 
ftere  takeu  from  iboae  who  bad  a  special 
temporary  property  in  them,  with  a  wicked^ 
IVaudnlent  intention ;  which  is  tbe  ancient 
known  dehnition  of  larceny,  *■  Frauddenta  oh- 
*  trectatto  rel  alienae  invito  domino.'     But   I 


Belt,  that  the  true  de«igti  should  be  coju^iM 
frotn  ibetn  ;  and  that  they  were  to  be  drmiriit 
tlie  place  of  action  under  another  preteaee. 
This  circumstance  therefore  Wiug  p*rt  of  Ikt 
original  agreement,  the  priAOoets  eaaiMil  tfitl 
theuiselres  of  it,  if  the  agTcemeRi  upott  fk% 
whole,  and  what  was  done  in  eoosr^twUce  of  it, 
be  (»uiiicit'nt  to  make  them  aocftfaanifif. 

As  to  tbe  other  circumstaoce^  ibat  tke 
soDers  had    no  converfiauou    Mritli    WMm 
Kflly   hefoce  tbe  assault   upon  SAimoii^ 
counsel   relied   chiefly  on    the   words  of 
eitatute«  on  which  this  indtctmeot  is  foifoifel. 

Tbe  Kiaiutes  are  tbe  4th  and  51  b  of 
and  Mary,  c.  4,  and  the  5d  and  4tb  nf  W 
M.  c.  9.  The  words  of  the  former^  wbieb  m\ 
defcriptire  «f  the  oflence,  are,  •'  If  isyj 
person  shall  maliciously  couosel,  bire^  Ct 
luand,"  The  latter  retaineth  the  words 
Nel,  hire,  or  coromand,  and  addetli 
**  shall  comfort,  aid,  abet,  or  assist."  Fi 
these  worfit,  which  it  must  be  admitted  are 
sriptive  of  the  offence,  the  prisooera* 
conckidod,  that  without  a  personal^  ii 
comraunicalion  of  couuseiSf  iiit«»tiOi 
triews,  from  tbe  suppo^ied  aocsttsaane 
principals,  there  can  be  ao  acceaaarj  before tk 
fact. 

But  tbe  judges  are  all  of  opinion,  tbat 
ever  procureth  a  felony  to  be  committed,  tf 
it  be  by  the  iot^rYeation  of  a  third  peraon,  bM 
accessary  before  the  fact,  and  with  id  iIm« 
iilatutcs.  For  what  is  there  in  tbe  nouoo  i/ 
cnmrnandintr*  hiring,  counselling,  aidiag  m 
abetting,  which  may  not  be  efl'eeted  by  theia* 


never  did  bear,  before  this  time,  of  any  attempt  |  lerfeotiou  of  a  third  person,  witliuut  any  direct 
to  charge  a  man  as  accessary  before  the  hcl  to  immediate  conoectioo  betweeti  ibe  firainii« 
a  robbi^r^'  committed  on  his  own  perton.  aod  the  actor  ? 

As  to  the  prisoners  I^MIaniel,  Berry,  aud  j  A  biddeth  his  serrant  hire  aomebodT,  •• 
Kgan>  the  judges  are  unoniraously  of  opiniou,  i  mutter  whom, to  murder  B,  and  furiiisbcu  bfli 
tbat  suppO!»in;r  a  rubL»ciy  was  committed  on  {  with  money  for  tbat  purpose ;  tbe  aervaot  pfv* 
fiilmon,  the  facts  f')und  by  the  special  verdict  ' 
are  sutBcient  to  charge  thctn  as  accessaries  in 
the  mauner  they  are  charged  in  this  indict- 
inent. 

For  tbe  reriltct  fiodetb,  thai  every  circum- 
f taoce  attending  the  fact,  tbe  place  where,  and 
tbe  person  on  whom  it  was  to  be  commiited, 
tbe  means  by  wbiuh  it  was  to  be  efiecled,  and 
the  persona  by  wlioui  it  was  to  be  done;  aJl 
tbtbe  circumstancps  were  settled  and  agreed 
upon  by  Ibe  putjoners prer ions  to  tbe  fact :  and 
in  ci^user|ueDce  of  this  consult  and  agreement 
the  fact  was  committed. 

It  is  inileed  found,  tbat  none  of  the  prisoners 
had  any  conversation  v\  itb  Ellis  and  Kelly  pre- 
vious to  tlie  robbery  ;  and  that  Blee  did  not  ac^ 
quami  FItts  and  Kelly  with  his  intentioa  Io 
cmiitiiit  any  roblifryt  but  drew  them  to  DepU 
ford  under  pretenct;  of  stealing  linen, 

Th *-'¥*?  ci re uni stances  seeem  to  have  been  the 
fouikduiii^n  of  tbe  Jury*&  doubt;  an<l  the  pri^ 
■ontT!*'  ffHHist'l  linvi'  laid  great  stress  on  them. 

Am  ^i*  ihateircmusiance,  that  Blfe's  true  de- 
ftigu  v^u%  tiot  made  known  {o  £lhs  and  Ktlly, 
itapjifiirt^tb  iiiauift;slly  by  tbt*  fdcln  b»uud,  tlmt 
i^  ir^  part  of  tbt  onginal  agreeutcul  at  tlie 


curetb  C;  a  person  whom  A  never  aaw  or 
tiff  to  do  it.  Is  not  A,  who  is  maoifetllj  lit 
tirst  mover  or  contriver  of  the  murder,  aa  •& 
cessary  before  the  fact  P     It  would  be  a  if* 

E roach  to  tbe  justice  of  the  kingdom  to 
e  is  not. 

It  is  a  priDCtple  in  law  which  can  Mftfit 
conirorerteil,  that  be  who  procurelb  a  fcki^ 
to  be  done  is  a  felon.  If  preae&t,  he  is  a  jaia* 
cipal ;  if  absent,  an  accessary  before  tha  oA 

In  the  case  nf  the  earl  of  Somerset,  £voli, 
p,  966]  who  waa  indicted  upon  tbe  atatiitc  if 
Phil,  and  Mkr,  as  an  accessary  before  tbe  hdi 
to  the  murder  of  air  Thomas  Overbury,  thi 
ford  chancellor  Etie&mere,  high*8tewardL 
the  otttset  of  tbe  cause,  and  Itefore  any  i 
dence  given,  directed  the  peers  triers,  and  al 
the  judges  present  concurred  *vitb  bialofdafam, 
tbat  the  only  polut  in  issue  was.  Whether  Ifts 
earl  can  bed  or  procored  tbe  murder,  or  Ml. 
And  accnrdLngfy  ibe  earl  was  found  ffuiltj 
upon  evidence  which  satiated  hia  peenit  ihril 
be  had  cnnirthuled  to  Ibe  murder  by  tbe  lotet * 
veution  of  Ins  lady,  and  of  sir  Jan  is  Elwaya, 
and  Franklin,  wlio  were  themseltet  no  mora 
than  iiccesjiariesj  without  ao^  won  oC  |>nMl' 


105}  m  Accessaries  to  a  Felony  before  the  FacU  A.  0.  1755. 


[SOS 


lluit  lie  hid  ever  eoof  erteil  with  Weston,  the 
ObIj  pKnctiiiil  in  tite  mtirder,  or  had  corres- 
funded  ^itli  Kit»  direclly  by  letter  or  mes^a^e. 
TTie  bcii  writers  oti  ihc  crown  law  a^free, 
that  persons  [irocuriogt  or  even  consenling  be- 
fure^handf  nre  accessaries  hefore  tUe  fact. 

I#r>rd  Coke^  in  bis  Coromcot  on  West  1, 
C  14,  iu  ex|)laiMiti|^  the  words  *•  coinmaodtDeot* 
aod  *  aid*  as  applied  to  accessaries  before  the 
fiijL't«  saitb,  **  tinder  this  word  *ooniniaDd*  are 
tf<Mnjir»*he fitted  all  those  who  incitet  procure, 
Mt'On,  or  stir- up  any  to  da  the  fact.  And 
imdmr  die  word  *  aid^  are  comprehended  all 
ttmoiu  coansellinif,  abetting,  plotting,  a«scnt> 
tug',  con<«enttn;r^  iLnd  eticou raging'  to  do  the 
Ikct,  ami  tK)t  present  when  it  is  committed." 

Lriid  Hale«aiih,  (1  I]a|e574.)  '*  MiRpHsiim 
af  felony  is  coocenlin};  a  felony  whtcli  a  man 
knvwetht  but  never  consented  to  ;  for  if  be 
coiiatf^nied,  he  is  either  prmcipat  or  acce^aarv. 
1^.  0 1^,  6 16)  Ai^'uin^  accessary  before^  is  be 
,  being  absent  at  the  lime  of  the  felony 
iitted,  doth  yet  prf»cure«  cottoaci,  or  abet 
\tt  lo  cornrtiil  the  felony.** 
fany  authoriticu  to  this  purpose  may  be 
d,  which  for  brevity  take  1  will  barely 
nfcrlo.* 

'  i'^cted  by  the  prisoners'  counsel^ 
tii^  Mtutes  are  to  be  cijnntrued   with 

firui  >iiiiiiit^s;  and  that  the  words  *•  prooutV 
or  *  consieiit*  are  not  to  be  fuund  in  either  of  the 
lf.if«*.  .t.i.ui  which  ihi"*  indictuicnt  is  fnrmed. 
f  T  j lie  IK  true,  that  in  proserotioiis  on 

u  c:4  ihe  wiirdjA  o^  the  statute  are  to 
t  pursued.  But  it  h  ei^uatly  true,  that  we 
«rs  nut  to  be  governed  by  the  siound,  but  by 
tk  weU^koQWO/ true,  le|;al  iuiporl  of  the 
*'»rdf, 

Ht»me  of  the  words  made  use  of  in  the  pre- 
■rsiiudictmenl,  sud  in  uue  or  other  of  the  ala- 
Istri  ii)H»n  which  it  is  founded,  are  *  c^jnimand,* 
*iiil,*  sud  <  abet.'  Thepassa^^e  1  liuve  ju^t  cited 
fbui  lord  Coke  sbeweth,  thai  persons  pro- 
caritMf,  rontriviug,  or  consenliogi  come  within 
tbe  wtirda  ^  aid'  and  *  conarnand.*     And  ihut 

CRMis  procuring -are,  in  the  lani^uage  of  the 
,  ib«ttora,  may  he  proved  by  many  autJin- 
titim,   whtcb  it  is  not  Decenary  to  cile   at 

Ting  hf'ing  90»lhe  priNOiier«M*Daniel,  Egan, 
Berry »  who  were  the  cooirivers  of  this 
i  of  ini<]uiiy,  agrc<ed  upon  the  place  and 
'  of  *jiecution,  amJ  conducted  the  whole 
Mhc  intervention  of  their  instrument  Blee, 
tHaccfiHiricM  before  to  ibis  robbery,  siippo&iut^ 
ttabbrry  i^Bi  committed.  For  in  construction, 
tt4  indeed  in  ihe  languuge  of  the  law,  they  did 


'Seaden' 


*8eeSUnr.4a.  Lambard  157.  Dali.c.  161, 
i-i.    Aiid  aee  Co,  Ent,  Appesl  pi*  6,  6.  Dyer 
}.^186,     1  Aud.  195.    \U^iJ^^  Appeal  pL'l5. 
,.M...i«   r^ail  i lid tctmeiits^ against 
1  tct,  all  charging  Ibem 
iiy. 

^  le  r*ey.    V*  Abettors, 
Vestm.  a,  c.   IS.     Itaa- 
iV  Etit.  tu.  ^)ii  b,  41,  a«     Dyer  ISO. 


^  command  Ellis  and  Kelly  to  commit  the  iict| 
and  did  aid  and  abet  them  in  it. 

I  come  now  to  the  other  question,  Wheihe 
upon  the  state  of  the  case  in  the  special  ver*J 
(tictf  any  robbery,  in  the  legal  notion  of  ilu 
otirencCf  WHS  cnmmiUed  on  Hulmon  or  no  ? 

And  the  judges  are  of  opinion,  that  it  dotk 
not  appeoTf  from  the  facts  stated  in  the  verdid 
that  the  taking  the  money  and  goods  froa 
Salmon ,  by  Ellts  and  Kelly,  doth  amount  to  i 
robbery,  in  the  legal  notion  of  that  ofleoce, 

Something  was  said  in  arguing  of  this  caagJ 
upon  the  que^ition,  how  far  a  person  charged  asl 
an  accessary,  and  brought  to  his  trial  after  th#] 
conviction  of  the  principal,  can  controvert  tli«J 
truth  of  the  fact  found  by  the  verdict  agaiusl| 
the  principal  ;  or  bow  far  the  supposed  accea-  | 
sary  can  ne  let  in  to  shew,  either  that  no  fe*  I 
lony  was  committed,  or  that  the  person  con*  J 
▼ictcd  as  principal  was  not  guilty  of  it,  ] 

This  general  question  is  of  great  extent  in4  I 
o(  mighty  importance  in  prosecuiionii  of  thift  ] 
kind ;  and  some  diversity  of  opinion  there  if 
among  the  judges  upon  tt. 

But  it  will  not  be  necessary  at  present  to 
enter  at  all  into  it ;  because  the  Court  in  tb*  , 
present  case  mti&t  found  its  judgment  upon  the 
facts  found  by  the  verdict,  and   upon   them 
alone*     Now  it  is  expressly  found,  that  Salmon 
was  party  to  the  original  agreement  at  th^j 
Bell ;  that  be  consent^  to  part  with  bis  monejf 
and  goods  under  colour  and  pretence  of  a  rob*  ' 
bery ;  and  that  lor  tbat  purpose,  and  in  pur* 
suiince  of  this  consent  and  agreement,  he  wen| 
tn  Depiford,  and  waited  there  till  this  colour*  1 
able  robbery  was  cHected* 

I'his  being  the  state  of  the  case  with  regard 
tn  Sahnon,  the  judges  are  of  opinion,  that,  ia 
cousideratifliiof  Taw,  no  robbery  was  committed  i 
on  him.     His  property   was  not  takeD  fron^ 
hiin  against  his  wiUr 

It  was  said  by  the  prisoners*  counsel,  tbat 
the  verdict  doih  not  find  th^t  Salmon  was  put 
in  fear  ;  and,  say  they,  there  can  be  no  robbery 
without  the  circumstance  of  putting  in  fear. 

r  think  the  want  of  that  circumstance  alone 
ought  not  to  be  regarded.  I  am  not  clear  that  , 
that  circumstance  is  of  necessity  lo  be  laid  iti 
lite  indictment,  so  as  the  fact  be  charged  to  b« 
d'jue  *violent^r  et  contra  voluntatem.*  I  knoir 
there  are  opinions  in  the  books  which  seem  to 
make  the  circumstance  of  fear  necessary  ;  bul 
1  liave  seen  a  good  MS.  note  of  an  opinion  of  i 
lard  Holt  to  the  contrary.  And  I  am  very 
clear  that  the  circumstance  of  actual  fear  at  the 
time  of  the  robNry  need  not  be  strictly  |»n>?ed. 
Suppose  the  true  inan  is  knocked  down  without 
tmy  previous  warninsf  to  awaken  biv  fears,  and 
lieth  totally  insensible  while  the  tliief  ritletli 
his  pockets«  is  not  this  a  rubbery  ?  And  yet 
where  is  the  circumstance  of  actual  fear  ?  Or 
suppose  the  |rue  man  maketb  a  manful  re- 
sistance, but  is  overpowered,  and  his  property 
taken  from  him  by  the  tnere  dint  of  superior 
fitreogtb,  this  donintess  it*  a  robbery.  And  iu 
caiMta  where  the  true  man  dcliveretU  his  pur«« 
without  rcaisiai»ce|  if  tbe  lact  be  attended  wiik. 


807] 


n  GEORGE  IL 


Trial  of  M'Damel  imd  aOan^ 


[80B 


tbow  circumitaDceB  of  Yiolenee  or  terror  which 
io  common  experience  are  likely  to  indace  a 
man  to  part  with  his  property  for  the  laiety  of 
hiaperton,  that  will  amoant  to  a  robbery.  And 
if  fear  he  a  necessary  ingredient,  the  kw,  in 
odium  tpoUatorii^  will  presuoM  fear,  where  there 
appeareth  to  be  so  just  a  groand  for  it 
■  I  come  now  to  the  case  I  promised  at  the 
beginning  to  consider,  and  to  distingoiah  from 
the  present  case.  One  Norton  having  been  in- 
fornied  that  one  of  the  early  stage-coaches  had 
been  frequently  robbed  near  the  town  by  a 
single  highwavman,  resolved  to  use  his  endea- 
vours to  apprehend  the  robber.  For  this  pur- 
pose he  put  a  little  money  and  a  pistol  into  his 
pocket,  and  attended  the  coach  in  a  post- 
chaise,  till  tlie  highwayman  camo  up  to  the 
company  in  the  coach  and  to  fatra,  and  pre- 
senting a  weapon  demanded  their  money. 
Norton  gave  him  the  little  money  he  had  about 
him,  and  then  jumped  out  of  his  chaise  with  a 
pistol  m  his  hand ;  and,  with  the  assistance  of 
some  others,  took  the  highwayman. 

The  robber  ^elchier)  was  indicted  about  a 
year  ago  in  this  court  ror  a  robbery  on  Norton, 
and  convicted.  And  very  properly,  in  my  opi- 
nion, was  he  convicted. 

But  that  case  differeth  widely  from  the  pre- 
sent. In  that  case,  Norton  set  out  with  a 
laudable  intention  to  use  his  endeavours  for  ap- 
prehending the  highwayman,  in  case  he  should 
that  morning  come  to  rob  the  coach,  which  at 
that  lime  was  totally  uncertain ;  and  it  was 
equally  uncertain  whether  he  would  come 
alone  or  no.  In  the  case  now  under  considera- 
tion, there  was  a  most  detestable  conspiracy 
between  Salmon  and  the  rest  of  the  prisoners, 
that  his  property  should  be  taken  trom  him 
under  the  pretence  and  show  of  a  robbery  ; 
and  time,  place,  and  every  other  circumstance, 
were  known  to  Salmon  before-hand,  and  agreed 
to  by  him. 

In  Norton's  case,  there  was  no  concert,  no 
sort  of  connection  between  him  and  the  high- 
wayman ;  ncthiiisr  to  remove  or  lessen  the  dif- 
ficulty or  dan^r  l^^o^ton  might  be  eiqMsed  to 
in  the  adventure.  In  the  present  case,  thera 
was  a  combination  between  Salmon  and  one  at 
least  of  the  supposed  robbers,  I  mean  Blee. 
And  thouifh  Salmon  might  not  know  the  per- 
sons of  Ellis  and  Kelly,  yet  he  well  knew 
that  they  were  brought  to  the  place  by  his 
friend  Blee,  and  were  wholly  under  his  di- 
rection. 

So  widely  do  these  cases  differ. 

To  conclude,  all  the  prisoners  have  been 
guilty  of  a  most  wicked  and  detestable  con- 
spiracy, to  render  a  very  salutary  law  subser- 
vient to  their  ?ile,  corrupt  views.  But  great 
as  their  oflTeuce  is,  it  doili  not  amount  to  fe- 
lony*.     And  therefore  the  judgment  of  the 


Court  is,  thai  they  be  all  di«dttrged  of  thii  's^ 
dictment. 


•  (Foster's    Reports,    p.    121-130.) 
leanied  judge  says  further,  p.  364, 


The 
At 


conference  amon<^  the  judges  upon  the  case  of 
M 'Daniel  and  others  ab<ive- reported,  a  general 
fuettioA  wa«  moved,  how  far,  and  in  what  caiei 


Afterwards,  at  the  Fcbmaiy  eenfeoa,  1750. 
in  alderman  Bethell's  mayoralty,  they  were 
prosecuted  at  the  ezpence  of  the  crown.  Dm 
the  representation  or  the  judges,  fbr  a  Cod- 
spuacy,  on  the  followmg  indictmeiit : 

« Stephen  M'Daniel,   John  Berry,  JaBM 

<  Egan,  (otherwise  Gahagao),  and  JaoMi  flri- 

<  mon,  were  mdicled,  for  that  they,  being  pv- 

<  sous  of  wicked  and  corrupt  miDda  aad  esa- 

<  versatioBS,  and  not  having  the  fear  of  <M 

<  before  their  ejes,  but  being  moved  and  se- 

<  duced  by  the  instigation  of  the  devil,  netn- 

<  garding  the  laws  of  this  realm,  or  the  peisi 
*  and  pnialtics  that  should  befal  tbereoa,  tf 

<  wickedly,  unlawfully,  and  malidously  esM* 

<  bine,  conspire,  and  agree  together,  that  ess 

<  Thomas  Blee  should  procure  two  persons,  Is 

<  wit,  Peter  Kelly  and  John  Ellis,  to  go  Is 
'  Denttbrd,  in  Kent,  and  to  toke  divers  mmk 

<  and  money  from  the  person  of  the  said  £U- 
'  mon  on  the  king's  highway,  who  shoaU  k 

the  accessary  may  avail  himself  of  the  ismff- 
dency  of  the  evidence  in  point  of  fact,  or  tf  dw 
incompetency  of  witnesses  in  point  of  kw,  pro- 
duced against  the  principal;  and  in  what  mm 
he  may  be  let  in  to  shew,  that  the  facts  dMfsi 
and  proved  against  the  principal,  do  Ml,  ii 
judgment  of  law,  amount  to  felony  P  Itoe 
was  in  that  case  no  occasioD  to  enter  ftririi 
these  questions ;  since  the  facts, 
the  point  of  law  then  under  oonnd 
necessarily  turn,  were  all  fonnd  by  the  i 
verdict.  The  general  question  was  theicftis 
waived."— And  then  goes  (p.  365,)  to  trsst  os 
accessaries;  and  adds,  ** Therefore, if  it sbaS 
come  out  in  evidence  upon  the  trial  of  the  s^ 
cessary,  as  it  sometimes  hath,  and  freqneotlf 
may,  that  the  offence  of  which  the  prinoi^ 
was  convicted  did  not  amount  to  felony  io  hsi^ 
or  not  to  that  species  of  felony  witli  which  bs 
was  charged,  the  accessary  may  avail  hisMdf 
of  this,  and  ought  to  be  acquitted.  This  sii 
the  case  of  M'Daniel,  and  others  above-cilii 
The  youths  who  were  convicted  of  the  isIh 
bery,  being  totally  ignorant  of  the  conspincf 
mentioned  in  the  report  of  that  case,  took  b» 
advantage  of  it,  and  were  convicted  upon  ftl 
and  legiad  evidence.  But  when  the  wholi 
scene  of  villainy  came  to  be  disclosed  upon  tbt 
trial  of  those  miscreants,  they  were  dischar^ 
from  that  indictment  u|M>n  this  single  objedMS, 
that  the  offence  of  the  principal  did  nnt,  in  lb! 
eye  of  the  law,  amount  to  a  robbery. 

**  If  this  opinion  was  well  founded  in  point  of 
law,  and  shall  stand  the  test  of  future  timsif 
as  I  think  it  will,  every  other  person  in  ibeli 
circumstances  may,  upon  his  trial,  avail  himi 
of  it,  aiid  will  be  entitled  to  a  verdict  ef  ao^ 
quittal."— If  any  one  wants  to  see  mors  ss 
this  head  relating  to  accessaries,  he  may  eon- 
suit  judife  Foster's  Reports,  p.  ISO,  131,  aM 
and  loUowmg  pages.    Fan       ~" 


800]  Of  iifiMtf n«i  fo  a  Fihni^  hefave  the  Faei,  A«  D.  175.5. 


*  vrsiling^  there  Ibr  lb  At  purpote  |  with  inlcot 

*  ibml  tbtfj  Aboulil  oaute  tbe  said  tiro  persous 
4  |9  te  apprehoiKittiJ  and  convicted  for  rolibm^ 

*  Jkim  llie  lald  SjUmoo  ad  ibe  king;*s  highway' , 
'Mtf  M  w^tutly  moil  wickuiily    procure   bo 

*  llMiD«.lfifli  lb€  reiTftrdi  meuiiuD^  iu  lUe  »ct 

*  af  piurluiivitQt,  proclamation^  aod  other  pa* 
^  meDHU  reiTttnlii  for  ihts  appreUendin^of  bigb- 

*  ttAymen;    to  the  great  displeasure   of  AU 
'laj^btjr  Cttid,  and  the  ^at  disbmiour  and 

1  0f  lb«  lawa  of  this  kingdom,  and  the 

Jc  of  ati  otlters,  against  his  ma* 

«)nty'^  pnce,  lils  crotru  and  dignity,  July 

Vnoa  the  evidence  of  Bletf  and  others  tliat 
•onnrmed  bim  in  every  tiling,  the  Court  de- 
dined  cadi II (^  ruore  witti esses,  though  several 
were  in  court ;  and  the  priaoners  making'  but  a 
Irifltitg  ilefence,  they  were  all  found  guilty* 

Sentence. 

Stepben  M^DaoieU  John  Berry,  James 
BglQ  (otberwiae  Gahagau),  and  James  8al- 
Btfi,  to  be  imprisoned  in  Newgate  for  the 
lirmof  seveo  years ;  and  in  that  time  to  be 
«Mbof  tliem  6et  in  the  pillorv^  twice,  in  the 
MHmr  following:  M'Daaief  and  Berry  in 
HflfttTD,  uetiT  Hatton-Garden  ;  Kgan  aou  8aU 
Inon  in  the  middle  of  SmtthfiehL  Afterwards 
M'llanid  and  Berry  at  the  end  of  King-street, 
and  Eg^an  and  Salmon  agnin  in 
,  uear  FeUer-lane  end  :  and  at  tbe 
I  of  titat  lime^  to  find  sureties  fur  their 
I  btbiviour  for  ibree  years,  and  to  pay  a 
P«f  one  mark  eoeb. 


I  If 'Daoiel,  John  Berry,  James  £gai> 

Gahagao),    and    James    Salmon, 

iood  IMI  tbe  pillory,  vik.  BI'Dtntel 

nmr  Hattoa-Oarden,  on  Friday  tbe 

'  March,   17S<i  j   and  were  so  severely 

d  by  the  populace,  that  it  was  with  the 

I  dimeutty,  that  oneof  the  sbeiifl'ei,  and 

•per  of  Newgate,  who  stood  in  a  balcouy 

y,  prevented  their  being  utterly  destroy- 

id  su  great  was  tbe  mob,  that  the  peace- 

t  found  it  impossible  to  protect  the  pri- 

I  from  their  fury  ;  and  Egan  and  S^almon 

b  Soiitbfield  on  Monday  the  dtb.     They 

llaMmly  assauttefl  n  ith  showers  of  oyster^ 

%  flMMs,  ^c.  and  had  not  stood  above 

IB  iNWr,  before  Egan  waa  itryck  dead  ; 

iilaioii  so  dangerously  wounded  in  the 

,  Itial  tC  was  thought  im^Kixsible  be  could 

Whatever  punUhment    they  might 

law,  it  is  certain  they  nugbt 

» bt  Mougb  the  rage  of  the  popu- 


'H«». 


^  Htm  lhf»  Case  of  Etioabetli  Cellier,  anir, 
^ift  II  »nd  Rear  v.  Bowers,  and  Rex 

ted  in  a  Note  to  that  Cose, — 

»»l  '  Wtrrington*s  Observations  re- 

link' r y,  (|uuted  and  referred  to  in 

w  iii.u  4.di»e,  sud  to  the  Case  of  lord 
fj  tola,  p.  401,  oftUiaCoUeolioB. 


(aoe.     Aad  we  and.  tiial  April  11,  USf,  Bd*-^ 
ward  Dalton  and  Ricbsrd  GrtfBtbs  were  irieJ 
St  the  Old-Baik^y,  for  tbe  murder  of  Job^J 
Wiiller  in   the  pillory,  by   iieliih|>  bim   with  ' 
caulidower-stalks^  tkc.  and  louud  guiUy,  and 
both  executed  at  Tyburn.* 

In  June    sessions,    in  alderman   Belbell's 
nmyorahy,  1756,  two  of  the  before- menti on i^d 
luiscreanH,  M^Daiiiel  snd  Berry,  togetljcr  wiifi  ' 
one  Jlary  Jones,  were  tried  for  murder,  upon  i 
conspiracy  of  the  tike  nature  against  one  Rid^ 
(len  (who  was  convicted  and  executed  tar  a  rob* 
bery  on  the  highway,  and  at  the  gallows,  ig 
the  most  solemn  manner,  declared  bis  inno' 
cencc),  on  the  following  indictment :  Htephe 
M 'Daniel,  Ji»hu  Berry,  and  Mary  Jones,  wei^ 
indicted  ^*  for  the  wilful   murder  of  Josbu| 
Kidden,  in  maliciously  causing  bim  to  be  un^^ 
justly  apprehended,  falsely  acciBcd,  tried,  con  ' 
victed,  and  executed,  well  knowing  him  to  b 
innocent  of  tbe  fact  laid  to  bis  charge,  witkl 
AQ  intent  to  share  to  themselves  tbe  rewar(Ll 
&c.  Feb.  4,  17^4,t  ^ 


*  See  what  was  said  by  the  Cliief-Justii 
after  passing  sentence  on  Mr.  Heading,  antef 
vol.7,  p.  310;  and  tbe  charge  given  to  thi 
sheriff  W  Jefferics  after  passing  sentence 
Elizabeth  Cellier,  anU^  vol.  7,  p.  1Q09. 

f  **  In  p.  56,  note  (d)  having  meotione4| 
Egsti  and  Salmon,  who  un  the  8th  of  Marc' 
1736,  stood  in  the  pillnry»  Mr.  Earrington  ob 
serves,  *  That  tbe  oHfeuce  of  ihcHe  criminali 
WAS  undoubtedly  of  the  most  atrocious  nature  [ 
nor  do  1  poe,  saith  he^  why  they  might  not 
have  huen  indicted  for  murder,  notwithstanding 
Mr.  Justice  Foster  bath  in  bis  Reports,  p.  1S9#  ' 
intimated  bis  opinion,  that  such  an  iniliclment 
would  not  lie,  and  cbieOy  bec:mse  there  is  no 
such  precedent'  As  to  this  observation,  I 
have  only  1o  remark,  that  Mr*  Justice  Foster^tf 
opinion  m  relation  to  M'Dnniel,  Berry,  anij 
Jones,  (for  Mr.  Burrington  miiitakes  in  sup- 
poftittg,  that  there  was  ^iny  tbundatton  for  in- 
dicting Egan  and  Salmon  of  murder  J  is  strong- 
ly  suppoited  by  sir  Edwanl  C'oke,  who  informs 
tifl  J3  Inst.  4B,)  That  to  prncure  the  death  of 
an  tnnocent  pennn,  bv  giving  false  evidenoo 
against  him^  was  not  faotden  for  murder  in  bif 
time/'  D<Ntso(/i  Preface  la  FosterV  Crowii  ^ 
Law,  ftd  edttiou. 

**  It  has  Iwen  much  doubted  whether  a  | 
son  wilfnllv  giving  fjjlse  testimony  u^ainit  ana 
ther,  tn  orJer  to  accomplish  his  death,  can 
indicted  of  mtirder,  if  the  innocent  party 
convicted  thereon,  and  suffer  death  by  tb 
judgment  of  the  law.  Tbe  only  instance  of 
prosecution  of  thi^  Fort  in  modern  limes  wav  in 
the  case  of  M'Daniel,  Berry,  and  Jones,  wlio 
were  indicted  for  muidt;r,  upon  a  conspiracy  of 
this  nature,  ago i nut  ojie  Kidden,  who  was  con- 
victed and  executed  for  a  robbery  upon  thfl 
highway,  upon  the  evidence  of  Berry  an4 
Jones.  They  were  all  con? iGt^  upon  tbi*  in* 
Uictment,  iu  which  thft  speaial  lAftlUr  ««&  ^ciS 


811]  27  GEORGE  IL  Trial  &/ AT* Daniel  and  others, 

*«  Tlte  r»el  was  plaiDly  praved  a^inst  tbpm    su0erei)  them  to  he  convicted  ( Death) ^  but  iiD«  j 
vpoti  thii  inJictmeiit,  a*n^  Ihe  special  matter  |  mediately  reapited  judif^ineot ;  in  onler  ttittif 
hemg  set  forth  in  tbe  indictmeut,  the  Court    point  ot  law  inifht  be  more  fully  coii^'~ 


forlb  ;  but  judg'ment  was  respited  in  order  that 
Ihe  point  of  law  roi^jhl  be  more  lully  consider- 
€dg  upoD  a  motion  in  arrest  of  judgment.  But 
tbe  attorney  general  decliDintj'  to  ari^^iie  the 
tK»Jnt«  the  prisoners  were  discharged  of  that 
indictment.  Mr.  Justice  Foster  intimates  a 
•tron^  opinion  against  the  validity  of  such  an 
indiclineiiti  chiefly  as  it  seems  on  the  ii^round 
of  its  disuse  for  many  ages  past ;  ibont^b  he 
admits  that  there  are  stronj;  passages  in  our 
aarJeiit  writers,  which  greaily  countenance 
iucb  a  proiaecution,  Aod  we  bare  the  aiitbo- 
rity  of  IVIr.  Justice  Blackstooe  [4  Bbok.  Cotii. 
196,]  for  sayio^^t  that  ibe  aitoniey  KeneraJj  in 
tbe  case  of  M'Daniel  and  others,  did  not  de- 
cline arguing  the  pmnt  of  bw  from  any  appre- 
bcosJOD  that  it  was  nut  mainiainable,  but  frnui 
other  prudentiml  reasons ;  and  therefore  that 
nothing  sboniil  be  concluded  from  the  waring 
of  that  pruseoolioD.  What  the  chtc^  of  tho^e 
prudential  reasons  was  he  alludes  to  iu  tbe  same 
passage,  namely,  to  avoid  tbe  danger  of  deter< 
ring  wiine-ssea  from  giving  cTidence  upon  ca- 
pital prosecutions  if  it  must  be  at  the  peril  of 
Ibeir  own  lives.  With  reaped  to  tbe  uffence 
*  io  foro  conscicntiai,*  it  is  without  doubt  as 
iggravated  a  species  of  munler  as  any  tbtt  can 
be  eoooeif  ed/*  East's  Pleas  of  the  Crowo^  c. 
B,  8.  M. 

To  the  aboTe  passage,  Mr.  East  subjoins  the 
following  Note : 

**  Tbe  author  has  heard  lord  Mausfield  C.  J. 
ma  Ice  the  same  observation  ;**  [as  M  r.  Justice 
Blaclistone]  **  and  say,  that  the  opinions  of 
Mfirenil  of  the  judges  at  that  time»  and  his  owd, 
were  strongly  in  sup  port  of  tbe  indictment/* 

**  To  treat  one  unkindly,  to  work  on  his 
fmcv,  and  to  impair  bis  health  by  fear  and 
grieff  and  in  thut  way  to  conduct  him  to  tbe 
grave,  is  not  that  mode  of  killing  (bowerer 
wicked  and  depraved  it  may  be)  that  tbe  law 
takes  cognixiince  of  But,  on  the  other  hand, 
if  injury  to  tbe  person  is  the  immediate,  direct, 
and  almttst  ineri table  conse(]uence  of  the  act 
done,  it  wHI  coostitule  murder,  though  there  be 
no  blow  or  bodily  barm,  strictly  to  called, 
flowing  directly  from  tbe  hand  of  the  pri- 
soner. Wilfully  to  expose  a  sick  person,  or 
new  born  infant,  to  tbe  inclemency  of  the  wea- 
ther, or  to  do  any  act  which  places  another  in 
imminent  hazard,  and  death  tbtlows,  amoiinls 
to  murder;  in  which  cUss  may  be  reckoned 
tbe  case  of  one  swearing  falsely  in  a  capital 
trial,  lo  facts  that  produce  a  verdict  of  guilty  ; 
provided  it  is  made  out,  that  it  was  such  false 
swearing  that  produced  tbe  Terdict  of  guilty.** 
Burnetts  TreaiiseoD  tbe  Criminal  Law  of  Scot- 
land, chap.  1,  p.  7,  Note. 

•*  In  England,  there  was  also,  by  the  ancient 
eocnmon  law,  one  species  of  kilhng  held  to  be 
murder,  wbieli  may  be  dubious  at  this  day  ;  bj 


there  bath  not  been  an  tnstaoce  wherein  it  bu 
been  held  to  be  murder  for  many  ages  past:  1 
mean  by  bearing  false  witness  agaJnat  aootber, 
with  un  express  premeditated  desinto  tftkeawmy 
bi«  life,  so  as  the  innocent  pervon  oe  €Oiwhmmi 
and  execute^)  (Mirror^  c,  1,  •,  9,  Bfft*  e.  4t. 
Bracton,  K  3,  c.  4.)  The  Gothic  laws  pitoiaM 
in  this  case  tbe  judge,  tbe  witiiesaes^  and  lit 
prosecutor ;  *  peruliari  pank  jadiccm  puninat; 
Ijeculiari  testes,  quorum  fides  judicem  vediuii; 
peculiar!  denique  et  maxima  auctorem,  ut  bo* 
micidam.'  (Stiernh.  de  jure  Gotii,  L  3,  c  3J 
And,  among  tbe  Romans,  tbe  *  lex  Cornelia,  it 
si  car  i  is,?  gtuuished  the  false  witness  with  death, 
as  being  guilty  oi'  a  species  of  a64«s«inatiBo. 
(Ff  4B,  8.  1.)  And  there  is  no  doubt  bat  Qm 
is  equally  murder  *  in  foro  cooscieiitjiK*  u  k^ 
ing  with  a  sword  ;  though  tbe  modero  law  (i» 
avoid  tbe  danger  of  deterring  witoetaet  ffcm 
giving  evidence  upon  capitul  pro^eeutiooa,  if  il 
must  be  at  the  peril  of  their  own  life*)  b«s  aH 
yet  punished  it  as  such/*  Blackst.  CxMniiMil. 
book  4.  ch.  t4,  vof  4,  p.  196.     And  iq  Aiiodur 

fdace  (book  4,  chap.  10,  a,  16,)  lie  says^  *^  It 
las  so  me  limes  been  wished,  tbat  perjury,  at 
least  upon  capital  accusatians,  whereby  ano- 
ther's life  has  been  or  might  have  be«ii  df^ 
stroyed,  was  also  rendered  capital,  upoo  a  prii* 
ciple  of  retaliation  \  as  it  is  uaivensally  by  (bt 
laws  of  Franee*     [Montesq.  Sp.  L.  b.  U9,  cbiji. 
1 1,]    And  certainty  the  odioui^neas  of  the  criwe 
speaks  strongly  in  favour  of  tbe  French  law. 
But  it  is  to  be  considered,  that  there  the^r  id* 
mit  witnesses  to  be  heard  only  ou  the  side  «f 
tbe  prosecution,  and  use  the  rack  to  extort  a 
confession  from  the  accused.     In  such  a  eon-, 
atitutioo  therefore  it  is  necessmry  to  throw  I 
dread  of  capital  punishment  into   tbe 
scale,  in  order  to  keep  in  awe  the  witnesi 
the  crown ;  oa  whom  alone  the  prisoner'^  I 
depends  :  so  naturally  does  one  cruet  law  btffll 
another.     But  corporal  and  pecuniary  puai4-J 
ments,  exile  and  perpetual  iofatnv«  are  : 
suited  to  tbe  genius  of  the  English  law  ; 
the  fact  is  openly  discussed  between  wiin 
ou  both  sides,  and  the  evidence  for  ihe  crowa  | 
may  he  contradicted  and  disproved  by  th 
ibe  prisoner.     Where  indeed  the  death  of  I 
nncent  person   has  actually  been  the 
quence  of  such   wilful  perjury,  it  fid  la  i 
tbe  guilt  of  deliberate  murder,  and  deservi 
equal  punishment :    which  our  antiem  biw 
fact  indicted.  [Britton,  c.  5.]      But  the  mere  ! 
attempt  to  destroy  lii«  by  other  means  not  bvm^ 
capital,  there  is  no  rea^iou  that  an  attempt  by 
perjury    should  i   much  less  that   thi«    crisie 
!»hould  in  all  judicial  cases  be  pmiisbed  witb 
death.      For  to  multiply  capital  punisbmeali 
lessens  their  elfect,  when  applied  tucriinetof  I 
the  deepest  dye;  and,  detectable  as  perjury  i*, 
il  is  not  by  any   means  to  be  compared  villi 
some  other  offences,  for  which  only  death  caa 
be  ixijlicted:   atid  therefore  it  feema  already 


MS  Aceeitaries  to  «  Felontf  be/are  the  Foci.         A.  D.  1755#  [814 


HMrtioo  b  arrest  of  judgment.*  But 
toroey-ffeneral  decliDiDg  to  argue  the 
i  law,  tne  prisoners  were  at  a  subsequent 
I  discharged  of  that  iDdictmeot. 
lis  prosecution,  1  am  satisfied,  arose  from 
table  zeal  for  keeping  the  fountains  of 
pare  and  unpolluted,  and  a  just  indig- 
against  an  offence  of  this  signal  enor- 

nmst  be  confessed,  that  there  are  strong 
es  in  our  ancient  writers,  which  greatly 

i  perhaps  in  the  instance  of  deliberate 
r  by  p«j'**'y)  ^^^y  properly  punished  by 
Mentlaw;  wliicb  has  adopted  the  opi- 
'  Cicero  [de  leg.  2,  9,]  deri?ed  from  the 
the  twelf  e  tables,  *  penuria  pcena  dirina, 
a;  hniDana,dedecu8.''' 

the  Commons'  Journal  it  appears,  that 
rember  17, 16Q2,  the  House  gave  leave 

Sf  in  a  bill  that  perjury,  and  subornation 
■nation  in  the  printed  journal]  of  ner- 
I  capital  cases,  shall  be  felony  without 
i  of  clergy. 

]>eoember  5,  the  bill  was  presented  and 
Aral  time,  and  on  the  19tb,  30th,  and 
r  the  same  month,  and  the  Sd  and  19tb 
iMury,  different  orders  were  made  for 
|r  it  a  second  time^  but  I  find  not  any  fuN 
leotioo  of  it. 

;  esMion  was  terminated  by  prorogation, 
rob  14tli  following. 

orter's  Reports,  p.  131, 13S.— <<  There 
I  doubt,  whether  the  facts  proved  against 
noooted  in  law  to  murder,  which  was 
a  ^een  argued  before  the  judji^,  if  the 
ly-f^eneraTbad  not  declined  ii.  It  is  a 
wiucb  could  not  have  arisen  in  any  other 
y,  where  the.  Roman  law  is  allowed  to 
ftv  weight ;  for  by  that  law  it  is  expressly 
M»  That  witnesses,  who  by  a  false  aikl 
toe  testimony  procure  an  innocent  man 
ctpitallv  condemned,  shall  be  deemed 
ef  murder.  *  Quive  falsum  teatimonium 
fludo  dizerit,  quo  quia  publico  judicio  rei 
ilia  damnaretor,'  Digest,  lib.  48,  tit  8, 
*  Edition* 


countenance  a  prosecution  of  this  kind.  But 
those  writers  must  always  be  read  with  great 
caution  upon  the  subject  of  homicide. 

'*  Bracton,  whom  the  writers  of  that  age  for 
the  moat  part  follow,  was  a  doctor  of  both  lawa 
before  he  came  to  the  bench.  It  is  no  wonder 
therefore,  that  bating  before  him  no  tolerable 
system  of  the  English  law,  then  in  its  infant 
state,  he  shoold  adopt  what  he  found  in  the 
books  of  the  civil  and  canon  law,  which  he  had 
read,  and  seemetb  to  have  well  understood.* 

'*  Succeeding  writers  of  that  age  refined 
upon  him,  and  in  their  loose  way  wrote  upon 
the  sulgect  rather  as  divines  and  casuists  than 
as  lawyers;  and  seem  to  have  considered  the 
offence  merely  in  the  fight  in  which  it  mighl 
be  supposed  to  be  considered  inforo  caU. 

^  But  the  practice  of  many  agn  backwards 
doth  by  no  means  countenance  their  opinion. 

<*  And  during  all  the  violence  and  rage  of  the 
prosecution  against  Dr.  Oates,  it  seemetb  not 
to  have  entered  into  the  imagination  of  those 
concerned  in  it,  or  of  the  Court,  who  would  not 
have  spared  him  if  they  could  have  taken  their 
full  blow  n't  him,  that  the  offences  of  which  he 
was  convicted  could  have  been  so  charged  as 
to  have  reached  his  life.  Though  the  judg- 
ment they  passed  on  him,  the  most  cruel,  I  be^ 
lieve,  that  ever  was  given  in  Westminster-hall 
in  case  of  a  misdemeanor,  might  probably  have 
ended  in  hia  death.^f 

Egan  was  killed  in  the  pillory,  but  M*Daniel 
and  Berry  continued  in  Newgate  under  their 
former  sentence  till  Feb.  86, 1763,  when  John 
Berrv  died  in  Newgate ;  and  the  year  follow. 
ingM'Daniel  procured  himself  to  be  sent  abroad 
for  life  to  the  Indies,  as  a  soldier.— Salmon,  1 
take  it,  died  in  Newgate  before. 


*  See  Dig.  1. 48,  tit.  8,  ad  Legem  Come, 
liam  de  Sicariis :  I.  9,  tit.  S.  ad  Legem  Aqui- 
liam.  And  the  writers  en  the  canon  law,  col* 
lected  by  Linwood,  1. 1,  tit.  11.  V.  Ne  Oc- 
cides.    TortMr  Edition, 

f  See  the  proceedings  a^nst  him,  and  what 
fell  from  the  Court  at  the  time  of  gifhig  Judg« 
meat,  in  toL  10,  p.  1315* 


815j 


31  GEORGE  II. 


Trid  of  fmimn  Barnard^ 


P 


556.  The  Trial  of  William  Barnard,  at  the  Sessions-House  in  I 
Old-Bailey,  before  the  Right  Hon.  Sir  Charles  Asgill,  ki 
Lord-Mayor  of  the  City  of  London,  Sir  Michael  Foster,  ki 
one  of  the  Justices  of  the  KingVBench,  Sir  Sidney  Staffi] 
Smythe,  knt.  one  of  the  Barons  of  the  Exchequer,  Sir  Willij 
Moreton,  knt.  Recorder,  and  others  his  Majesty's  Justices 
Oyer  and  Terminer,  for  the  said  City,  and  County  of  Midd 
sex,  on  Wednesday  the  10th,  and  Thursday  the  11th  of  Mi 
on  the  Black  Act;  for  sending  a  Letter  in  a  fictitious  Nan 
to  Charles  Duke  of  Marlborough,  demanding  a  genteel  Sa 
port  for  Life :  31  George  H.  a.  d.  1758. 


William  Spinnage, 
Edvirard  Barlow, 
John  ChiltoD, 
Edward  Turner, 
John  Mills, 
BeiyarDio  fiailej, 


Middlesex  Jury. 


Benjamin  Lester, 
Francis  Phillips, 
Simon  Pawson, 
Richard  Airey, 
John  hngg, 
John  Turner. 


William  barn ARD,  Ute  of  the  parish 
of  St.  James's,  within  the  city  and  liberty 
of  Weiftminster,  in  the  coun^  of  Middle- 
sex, yeoman,  was  indicted,  for  that  he  being 
an  ill-disposed  person,  and  seeking  wicked 
gain,  and  little  regarding  the  laws  and  sta- 
tutes of  this  kingdom,  or  the  pains  and  penal- 
ties therein  contained,  after  the  Ist  day  of 
June  in  the  year  of  our  Lord  1723,  to  wit,  on 
the  3d  day  of  December,  in  the  3  Ist  year  of 
the  reign  of  our  sovereign  lord  George  the 
second,  king  of  Great  Britain,  &c.  1758,  with 
force  and  arms,  at  the  parish  aforesaid,  in  the 
county  aforesaid,  knowingly,  unlawfully, 
wickedly,  and  feloniously,  did  send  a  certain 
letter  in  writing,  with  a  fictitious  name,  to 
wit,  with  the  fictitious  name  of  Felton  thereto 
siffned  and  subscribed,  to  the  most  noble 
Charles  duke  of  Marlborough,  and  directetl 
to  the  said  duke,  by  the  title  and  description 
of  his  grace  the  duke  of  Mariborough,  de- 
manding therein  a  certain  valuable  thing,  to 
wit,  a  genteel  support  for  the  life  of  him  the 
said  William  Barnard,  against  the  form  of  the 
statute  in  such  case  made  and  provided,  to 
the  evil  example  of  all  others  in  the  like  case 
offending,  and  against  the  peace  of  our  said 
lurd  the  king,  his  crown  and  dignity.' 

AAer  Mr.  Moore  had  opened  the  indictment, 

Mr.  Serjeant  Davy  spoke  as  follows : 
May  it  please  your  lordships,  and  you  gen- 
tlemen of  the  jury ; 

1  am  counsel  in  this  caase  for  the  prosecation 
against  the  prisoner  at  the  bir,  who  sUnda  m- 
dictedopMartefMilhiMii'  '■<■ 
jeuflThiibtea 


name  of  the  Black  Act  ThatactofpariiMH 
reciting  the  several  mischieft,  and  oomtilali 
severalfelonies,  amongst  other  things,  can 
That  if  any  person  shall  knowingly  send  i 
letter,  without  any  name  snbscribM  theiaM, 
signed  with  a  fictitious  name,  demanding  a 
ney,  venison,  or  other  valuable  thing ;  fN 
person  so  offending,  being  thereof  lavlil 
convicted,  shall  beajyudgcd  guilty  eTfiBbi 
and  shall  suffer  death  at  in  cases  sf  AIh 
without  benefit  of  clergy. 

It  is  on  that  act  that  this  indictment  a 
comes  before  you,  that  yon  have  heard  i« 
You  see  it  is  for  sending  a  letter ;  fi>r  it  ii 
the  first  of  these  letters  that  the  present  indi 
ment  is  founded  ;  the  others  are  sent  in  essi 
quence  of  the  first,  and  explanatory  of  his  i 
tentions. 

1  will  open  to  you,  as  concisely  as  1  eaa,  t 
several  circumstances  we  have  m  evidence, 
order  to  affect  the  prisoner  at  the  bar :  they  i 
circumstances  of  that  nature,  correspondiuff 
exactly  with  the  prisoner's  case,  affecting  si 
so  very  minutely,  that  the  several  cireui 
stances  do  infer,  1  had  almost  said  an  impoi 
bility  of  his  innocence:  you  will  find  thef  < 
tally  so  exactly,  they  are  so  particulariy  rd 
tive  to  him,  that' it  will  be  offering  violeii 
to  every  rule  of  reason,  not  to  find  bi 
guilty. 

Gentlemen,  on  the  29th  of  November, 
letter  wasi  found  under  the  door  of  the  (k 
nance-office,  directed  to  his  grace  the  duka 
Marlborough  :  upon  opening  this  letter,  wbs 
was  wrote  in  imitation  of  print- hand,  bcarii 
date  that  day  the  29th  of  November,  it  will  I 
necessary,  for  the  sake  of  the  following  ciresi 
stances,  to  desire  your  attention  to  the  sew 
parts.    These  are  the  words : 

<«  To  his  Grace  the  Duke  of  Marlbomogk 

**  xjeviiU  Nnmk 

'•  My  lord ;  as  cerennony  is  an  idls  ihii 

npna  most  ooeasions,  more  especially  ia|<' 

asaakaij  stale  sf  miad,!  shall  yycw^  * 


Oft  the  Black  Act, 

ly  to  aeqQftiot  you  with  the  inotiire  ami 
of  ftfltlressin^  ihi*  episile  lo  you,  which  h 
H^tiaHy  iDttfr««tifig^  ttr  us  both.  You  are  to 
CQOW  ih«fi«  thul  my  present  situntion  in  life  is 
nob,  tlut  i  should  prefer  annihilation  lo  a  con- 
ouaActf  in  it :  desperate  diseat^es  retjulrv  tieS' 
nrmte  re tnedies  ;  and  you  are  the  man  I  ha?c 
iteh^fi  ujuaj,  either  to  make  me«  or  to  unmake 
ftKirself.  Aa  I  never  had  the  honour  «o  live 
rmon^  the  greaf,  the  tenor  of  my  proposala 
rill  not  t)e  very  couhJy  ;  but  let  that  be  an 
tfgumeat  to  enforce  the  belief  of  what  I  ara 
row  iping  to  write.  It  has  employed  my 
oreotiori,  far  some  time^  to  find  out  a' method 
rf>y  another,  without  exposing  mv  own 
hat  I  have  aocamplishetlj  and  defy  the 
Now  for  the  application  of  it.  "f  am 
ale,  and  must  be  provided  for:  you  have 
r  power,  it  ia  my  LusinesH  to  maice  it 
lination^  to  serve  me  ;  which  you  must 
to  comply  with,  by  procuring  me  a 
support  for  my  life ;  or  your  own  ivill 
period  l»efore  this  sessions  of  parliament 
I  have  more  motives  than  one  fur  nln^- 
yoti  out  first,  upon  this  occasion  ;  and  I 
T  tir  warning,  because  the  means 

ise  of  are  loo  fatal  lo  be  eluded 
paucr  of  physic.     If  you  ihink  this  of 
upnce,  you  will  not  fail  to  meet  the 
liiuudav  next,  at  ten  in  the  ntnrnin^f 
day,  ((f  the  we»lher  should  be  rainy 
*  near  the  firyi  tree  beyond  the  stile 
rk|  in  the  fooUwatk  to  Kens'ru;^'' 
y  and    compliance    may  preserve 
double   danger  of  this  «ort  i    &fi 
rlain  part  of  the  worht,  where  your 
luiB  more  than   been   wished  for,   upnn 
niotivfa,     I  know  the  worPd  too  well|  to 
lU  secret  in  any  breast  htil  my  own.     A 
\y%  determine  me  your  iriend  or  eucuiy* 

will  apprehend  that  I    mean  you 

alone;    antl  dep^iiiud  upon  it^  thut  u 

ry  of  any  aritfice  in  thin  iiftaJr  will  lie 

I  you :  my  safety  is  insured  by  my  si- 

{or  cunfe:««iuu  only  cjm  condemn  me." 

letti^r   contnininjyr  every  thins^  that  is 

a  liiiUie  unfnl 

— il»t  ii.iiM  :    rhat 

I  liat  stabbed  the 

miulh. 

\\ar\i  dnkv,  nut  inuundiited  by  the  letter, 

i  jfr<*atiy  ^urprizf^l  nt  it,  antt  willing  to 


ilhr  aulhur. 

lid  to  endeavour 

'Ueud  hirir  ; 

1                  ne  to  the  spot, 

i' 

,  however,  there  wai 

I' 

race  at  a  distance,  in 

■crtv 

'     n  the  occasion. 

Puk« 

some  time  on 

l^inJ 

1  iir^sed  aa  a  man  of 

iiy  i«. 

tulii  before  him  ;  he 

«  !»(..■• 

..i.iij,  atiit  «'^*  r"vK,vty  at 

k' 

lace.    At  1                   ome 

Ife^;.-. 

ijc  waa  retr        _,      J  ob* 

mm^ 

m  to  tht  particular  spot  just 

bv  the  tree  beyond  the  alile  in  Hyde  Park,  by 

the  foot-walk  to  Kensington  :  that  jierson  held 
a  handkerchief  to  his  mouth  in  a  seeming  dis- 
consolate manner,  looking;  into  the  water,  and 
stood  still  a  very  considerable  while.  Upon  hia 
grace  seeing^  thts, that  the  man  was  not  pursuing 
any  way,  the  duke  had  no  doubt  in  hh  own 
mind,  but  that  this  man  (be  he  who  he  \vould) 
must  be  the  person  who  had  sent  him  this  letter. 
The  man  sauntering  just  at  the  place,  the  duka 
rode  up  to  the  spot,  expecting  the  person  would 
Apeak  to  him:  liis  grace  asked  the  man,  Whe- 
ther he  wanted  to  speak  to  him  ?  He  saidi  No. 
— ^Bir,  Roid  the  duke,  do  you  know  me  ?  1  am 
the  duke  of  Marlborough  ;  telling  you  that,  per- 
haps you  h«ve  something  to  say  to  me. — No, 
my  lord. — No  notice  bemg  taken,  the  dukt 
came  away. 

Oentlcmen,  you  see,  this  was  an  appointment 
on  a  Hunday  to  meet  at  a  place  where  several 
people  might  be  sup]>osed  to  be  walking.  What 
was  the  view  of  that  person  may  be  seen  by 
H  n<l  bye.  The  author  of  this  letter  speaks  of  hta 
being  t  xceedingly  guarded  against  the  possibi- 
lity of  a  detection;  he  hoasu  of  the  care  and 
caution  he  had  used  for  that  purposc,^ — he  fletiea 
the  law, — nothing  but  confession  could  cou- 
denin  him, — his  safety  was  insured  by  Wm  si* 
Ifnee, — he  knew  the  world  too  well,  to  trust 
this  secrc't  in  any  breast  but  his  own. 

A  few  daysafVer,  in  the  same  week,  the  duke 
received  a  second  letter.  This  aUo  was  put 
uniler  the  door  of  ihe  Office  of  Ordnance,  and 
was  also  wrote  m  imitation  ol  a  print-hand:  but 
the  dtrections  of  Itoih  the  letters  are  not ;  there 
will  he  occasion  to  lake  notice  of  that  circuro* 
stance  by  and  bye.  The  aecotid  letter  is  ie 
these  words : 

'*  Tq  hit  Grace  iht  Duhe  of  MarlboTQUgk, 

•*  My  lord  ;  You  receive  this  as  an  acknow- 
ledgment of  your  pnnctualtty  ait  U\  the  time  and 
place  of  meeting  on  Sundny  last»  though  it  wat 
owing  to  you  (hat  it  answered  no  purpose. 
The  pageantry  of  being  armetl,  luid  the  ensign' 
of  your  order,  were  uselekM,  and  too  cotihpicu- 
ous  :  you  needed  no  attendant;  the  place  waa 
not  calculated  for  mischief,  uor  was  any  in- 
tended. If  you  walk  in  the  west  isle  of  iVeal^ 
minster  Abbey,  towards  eleven  o^clock  on  Suti* 
day  next,  your  sagacity  will  point  out  the  per* 
son,  whom  you  will  address  by  asking  h 
company  to  take  a  turn  or  two  wiih  you.  You 
will  not  fail,  on  inquiry,  to  he  ac4]uainted  with 
the  name  and  place  <yi  abode ;  according  t<i 
which  directions  yon  will  please  to  send  two  or 
three  hundred  pound  bank  notes  the  next  day 
by  the  penny  post.  Exert  not  your  cun'o&ily 
too  early  :  it  ia  in  your  power  to  make  m« 
gratefulon  certain  terms,  I  have  friends  who 
are  faithful ;  but  they  do  not  bark  before  they 
bile.     I  am,<&c.  ^c.  F." 

Gentlemen,  you  see,  the  writer  of  the  srconcl 
btter  speaks  of  being  hi msell  in  the  Park,  or 
at  least  of  knowing  that  tho  duke  waa  there,  al 
the  tune  and  place  appointed  :  and  Iherefora 
ibid  waa  a  farther  Qircumiiance  to  ooairv^cAVV:^ 

30 


: 


SI  GEOHGE  U. 


81Q] 

duke,  that  Uip  penoD,  wliom  be  had  aeen  the 
Sunday  before  in  llyde  Park,  aod  apoke  to, 
vaa  tbe  writer  of  ibe  leoond  letter.  You  see 
it  apeaka  of  the  duke'a  punctuality  aa  to  tbe 
lime  and  place  of  meeting,  tbe  particular  dreaa 
bis  g^ace  was  io,  and  aasigns  that  aa  tbe  reason 
of  not  speaking  to  him  tbe  Sunday  before :  ao 
you  see,  gentlemen,  that  circumstance,  which 
^as  a  little  unaccountable  of  itself,  of  tlie  duke*s 
not  being  owned  by  tbe  person  whom  he  bad 
seen  the  Sunday  before,  is  by  this  second  letter 
accounted  for;—"  The  pageantry  of  being 
arfnedt  and  the  ensign  of  bis  order."  He  had 
then  only  a  atar  on,  and  that  perbsps  an  old 
one,  so  as  not  to  be  conspicuous :  so  that  thia 
accounts  for  the  person's  not  speaking  to  the 
duke  in  Hyde  Park. .  There  can  be  no  doubt 
at  all,  but  that  tbe  writer  of  the  second  was  the 
writer  of  tbe  first  letter. 

Tbe  consequence  then  of  this  second  ap- 
pointment to  meet  tbe  writer  of  the  letters  in  tne 
west  isle  of  Westfninster-abbey,  you  will  ob- 
serve public  plaoes  were  appointed,  and  at  pub« 
lie  tiroes ;  the  first  in  Hyde- park,  the  second 
in  prayer-time  at  Westminster-abbey,  where 
the  duke  was  **  b^  his  sagacity  to  point  out  the 
person"— rthe  writer  of  this  letter.    The  duke 
accordingly  went  to  Westminster-abbey,  to  tbe 
west- isle  (though  indeed,  properly  speaking, 
we  don't  know  which  to  call  tbe  west  isle, 
the  church  standing  east  and  west).    His  grace 
went  to  tbe  western- most  part  of  the  Abbey, 
tnd  observed  nobody  lurking  or  standing  in  cir- 
cvmstanoes  suspicious:  a&r  a  little  time,  bia 
grace  was  surprized  to  see  that  the  same  per- 
aon,  whom  he  bad  seen  the  Sunday  before  ex- 
lictlv  at  the  spot  in  Hyde-park,  appeared  just 
in  this  place  at  the  west  end  of  Westminster- 
abbey  ;  but  he  was  surprized  tbe  more,  that 
this  person  did  not  speak  to  him.     Perhaps  his 
grace  had  not  then  considered  the  tenor  of  this 
Teiier ;    fur  it  was  not  to  be  expected,  that  the 
writer  would  address  tbe  duke,  but  rather  refera 
to  the  duke's  sagacity : — ««  Your  sagacity  will 
point  out  the  [)ertK)n,"  it  then  directs,  **  whom 
you  will  address  bv  asking  his  company  to  take 
a  turn  or  two  with  you."    His  grace  perhaps 
did  not  consider  thisexactiv  ;  but  waitinesome 
tia>e  for  tlie  person  to  speak  tQ  him,  and  finding 
he  did  not,  his  grace  asked  him,  **  Sir,  have 
vou  any  thing  to  say  to  tne  ?"  No,  my  lord.— 
''  Have  you  nothing  at  all  to  say  to  me  ?"  No. 
— -"  Have  you  nothing  at  all  to  say  to  me?" 
No,  he  had  nothing  to  say  to  him.     Now  I 
should  have  mentioned  to  you,  when  this  per- 
son came  into  the  Abbey,  another  person  came 
in  with  him,  who  seemed  by  his  appearance  to 
be  a  substantial  tradesman,  a  good  sort  of  man. 
These  two  persons,  after  stopping  and  looking 
about  at  the  monuments  near  the  west  cfate  of 
the  Abbey,  tbe  duke  being  sore  one  of  them 
was  tlic  same  man  he  bad  seen  before  in  Hyde- 
Fark,  bis  gaace  thought  proper  to  go  and  atand 
kf  tUem,  10  aen  if  that  peraon  woukl  speak  to 
iMm.    Seeing  the  duke  took  no  nolioe  of  binh 
lhi^bolhw«it.tonMrdmkeokoir3   ' 


Trial  qfWiBiam  Bamofd^  [IM 

had  seen  in  the  PM-k,  eanw  badk  mgm  (lff^«g 
his  friend  there)  to  the  spot  tvkwa  the  dnkn 
was.  The  duke  then  asked  him,  Whetbtr  kn 
had  any  thing  to  say  to  him?  No,  be  ka4  m< 
thing  at  all  to  say  to  him.  No,  he  bad  nothing 
at  all  to  say.  Then  the  duke  walked  m  litltB 
on  the  other  side  of  the  isle,  to  nee  wkeditr 
the  man  would  fellow  him,  or  had  n  mind  la 
speak  to  him  at  another  spot.  He  observed  the 
man  looked  eagerly  at  nim;  mny-bn  it  may 
be  understood,  be  expected  the  duke'a  **  a^[a* 
city  would  point  out  the  man."  Bowevcr,  Iht 
duke  did  not  do  what  the  letter  required,  tkH 
is,  Ask  him  to  take  a  turn  with  him. 


At  this  second  time  there  waa  somebody  thil 
was  with  the  duke  (when  I  say  with  oin,  I 


apprehend  bin? 
id  not  think  bia* 


don't  mean  ck)8e  to  him,  but)  i 
aa  to  Uke  notice  what  pamed,  in  order  la  wfm 
prebend  the  peraon,  so  na  to  pot  it  beyond  si 
doubt  that  he  waa  the  author  of  those  letkn 
The  duke,  and  this  attendant  of  his,  went  Sil 
at  the  west  door  of  the  Abbey,  in  order  to  ge  ti 
his  coach.  Now  you  will  mid  by-and-m,  is 
thg  next  letter,  that  the  writer  or  these  MM 
took  notice  of  thia  attendant,  hot  waa  nndsris 
apprehension  of  being  watched  by  anjrbsdf 
else ;  and  that  will  account  for  those  aiam< 
stances  I  am  goinj;  to  mention  :  aa  soon  astbi 
duke  went  out  of  the  Alibey,  that  man,  wbM 
the  duke  had  seen  at  both  these  plaosa,  wslA- 
ed  the  duke  out  of  the  Abbey,  and  aa  sosi  it 
his  grace  had  passed  the  door  of  tbe  Ahln^ 
he  went  up,  hid  himself  in  a  comer,  oonenM 
from  a  possibility  of  being  seen  by  his  gfSH 
in  caae  he  had  looked  back,  and  so  wiieM 
him  into  his  coach.  It  may  be  asked,  Why 
his  grace,  upon  having  such  dear  conviotisaa 
his  mind,  that  that  (ierson  must  be  the  wrilff 
of  both  the  letters,  did  not 
his  ^ce  will  tell  you,  he  did 
self  justified  in  so  doing;  he  could  not 
cile  it  to  his  own  mind  to  take  up  a  man, 
there  was  a  possibility  of  his  iunocence. 

Gentlemen,  a  few  days  atW  this,  cane  | 
third  letter  to  the  duke,  wrapped  up  in  a  vof 
small  compass,  and  directed  to  his  grace  IM 
duke  of  Marlborough  at  his  house.    Yoa  w3 
see,  by  comparing  the  direction,  that  this  tM 
letter  was  wrote  by  the  writer  of  the  first  kwi: 
It  begins,  '*  My  lord,  I  am  fully  convinced  yn 
had  a  companion  on  Sunday."  So  far  it  is  pnm 
that  tbe  writer  of  these  letters  was  in  tbe  Park  M 
the  first  Sunday,  and  saw  the  duke  there ;  td 
waa  in  tbe  Aboey  on  theaecond  Sunday,  td 
saw  the  duke  there ;  and  that  it  waa  the  ssm 
man  that  the  duke  saw  at  both  these  tinsa-* 
**  1  interpret  it  as  owing  to  the  weakneH  ^ 
human  nature:    but  such  proceeding  iii> 
from  being  ingenuous,  and  may  prodnee  M 
efiecis,  whilst  it  is  impossible  to  answer  it 
end  proposed."— Guarded  through  alL  '*  YiA 
will  aee  me  a^jriio  goon,  aa  it  were  by  atuidtti 
and  may  eaaily  find  where  I  go  to;   in  ili* 
sec^nence  of  which,  by  being  sent  to,  1  skdl 
wait  on  your  grace,  but  expect  to  be  ^niltain% 
and  converse  in  whispers.    Yon  will  IImhV 
(IviytHrlMMaiv  npm  nittlbn,  thU  ■•  |^ 


|1»  V 

tbe< 


tH  ih€  Black  Ad* 


of  tbe  eonrersation  ilm)l  Imnspire." — So  ilhal 
you  see,  as  he  was  g-uarded  before,  he  was  dtf- 
teriuiDed  to  tn&ke  il  impisible  to  1>e  discofr^red  : 
if  i\\ey  Wf  re  to  converse  in  whkpen,  and  tn  be 
fjuite  alone,  il  was  impossible  for  fiih«r  evidence 
to  rue  upa^ain^t  him — ^'  TUese  and  the  furmer 
lanm  oomplied  withg  in^iure  yoiir  ftaiely  ;  my 
yeveo^,  in  cate  of  non-compliance,  (or  any 
scheme  to  expose  me)  wiU  be  flower,  but  not 
l€ss  sure,  and  atrungf  suspicion  the  ultnoat  tbat, 
Cftn  poisibly  ensue  upon  it»'* — You  see,  ho^f 
arl/ul  he  bad  contrived  it  r  he  was  determined 
that  notbing  more  Itian  atroilg  sitsptcian  should 
•rer  be  in  evidence  ai^insl  bim-^''  White  the 
ebftnces  u-ill  be  tenfbtJ  ajfaiuBt  you.  You  uill 
possibly  be  in  doubt  atter  the  metftin|^i  but  it  it 
suite  neces'iary  the  outride  should  be  a  mask  of 
the  in.  The  family  of  the  Bloods  ianot  ez- 
lioci,  though  they  are  not  in  my  scbeme/* — 
'"The  word  Blood*  ia  in  capital  fellers.  That 
If  a  dreadiul  name )  At  tVhon  \\aa  tbe  vilbin 
who  assassinated  the  duke  of  Buckingham,  ao 
~  li  it  the  name  of  the  fellow  who  seized  the 
duke  of  Oruiond,  and  was  going  to  carry  bim 

Tyburn  to  execute  him,  nod  also  who  stole 
crown  out  of  tbe  Tower  of  London* 

Vou  see,  gentlemen,  by  tbii  third  letter,  that 
the  duke  was  to  expect  to  liear  soLnething  far- 
ther from  the  writer  of  these  letters,  ft  con- 
IS  no  appointment,  hut  leada  the  duke  to  ex- 
|Mct  he  tt ball  see  the  writer  again  as  by  acci- 
dent, «nd  was  to  observe  where  he  should  ^o  to, 
that  the  duke  might  know  where  to  send  for 
kim  ;  And  that  be  ^outd  come  jn  c^nfrequence 
^  being  sent  for  ;  but  vrheu  he  came  to  tlie 
dtuke  the  terms  were,  to  be  a  secret  conversa- 
Hon,  not  in  the  presence  of  a  third  person, 
■till  (hut  too  by  vvbispers,  and  the  duke  pro- 
ID  bin  g^,  upon  bis  honour,  that  no  pari  of  it 
^ould  transpire,  without  whicb  he  was  not  led 

think  tbe  writer  should  disdo.<%e  any  thing  at 

.  The  first  letter  was  date  d  ood  received  Hie 
'S9th  of  November,  the  second  received  the 
:ttcxt  weekf  tlie  third  iu  tbe  second  week  of  De- 
cember, and  the  last  was  some  time  in  Aprd, 

The  duke  waited,  ('X|>ecting  to  hear  farther  ; 
Iwt  heard  nothing  more  until  the  middle  of 
ikficil-  About  the  I4lh  there  came  a  letter  to 
I  bis  grace,  wrote  in  a  cnean  hand,  but  not  in 
inttatton  of  a  print  band,  as  tbe  others  were, 
^hese  are  the  words  of  the  fourth  letter : 

•*  To  hii  Grace  the  Duke  of  Marlborough* 

**  May  it  plea»e  your  grace ;  1  have  reason 
#0  believe,  (hat  the  son  of  one  Barnard,  a  sur- 
veyor in  Abint^don-huiliJings,  Westminster,  is 
ftC4)uainied  v^itli  some  secrets  that  nearly  con- 
eeh'n  y^ur  safety  t  his  father  is  now  out  of 
town,'  which  will  give  you  an  opportunity  of 
ri|aestiuning  bim  more  privately.  It  ivould  be 
Hpflcss  to  your  grace,  as  well'as  daiig*»itMis  to 
Hie,  to  appear  more  publicly  in  this  afl^ir.-^ 
Your  sincere  friend,  AwoMYMOts." 

*•  He  frequently  goes  to  Storey's- gate  coffee- 
bouse/' 

GefttkiueDy  tbe  diik«  ae&t  for  Mr.  Barnard, 


A.  IX  iisn. 


[S« 


the  son  of  Mr.  Barnard^  acc/?rdin|f  to  lire  di- 
rections io  that  letter.  This  letter,  you  wilt 
see,  bears  no  date  at  all ;  tin  memorandum,  or 
any  thing  which  could  possibly  indicate  whcii 
the  letter  was  sent,  or  when  tbe  duke  received 
it.  The  duke,  when  Mr.  Barnard  came,  waa 
silting  in  his  room  ;  and  though  upon  opening 
the  door  of  the  outer  rOoni  (which  was  at 
threescore  yards  distance  from  where  the  duko 
wi&s),  yet  the  nnoment  Mr.  Btirnard  entered  the 
rtiom,  be  was  sure  that  was  the  man  he  had 
seen  both  in  the  Park  and  in  the  Abbey.  Though 
ibe  duke  had  noiloubt  in  his  own  mind  on  the 
former  circuuistanees,  that  the  person  whom 
he  had  seen  before  was  the  writer  of  tbe  first 
Ittier,  now  be  was  fully  convmced  that  be  wa^ 
the  writsr  of  ill  the  letters.  The  duke  was  de^ 
tertnined  tbe  scheme  sliolild  not  so  far  take  ef-^ 
feet,  as  to  ens; age  himself  upon  his  honouri 
that  no  part  of  the  conversation  should  trans- 
pire ;  if  so,  nothinqf  could  have  prevailed  upon 
him  to  prosecute:  therefote  you  are  not  to  ex- 
pect he  complied  with  a  conversstion  tn  whia* 
pers,  and  a  promise  on  the  duke's  part,  that  itfi 
part  of  the  conversation  should  transpire.  Th# 
tbinl  letter  will  tell  you,  that  the  peison  that 
entered  tbe  room  was  tbe  writer  of  all  tbesi 
letters.  As  soon  as  be  came  into  the  rooni^ 
the  duke  took  hira  to  the  window,  and  asked 
htm^  whether  be  wanted  to  spesk  with  him  f 
**  No,  my  lord.'* — No,  8irS  1  have  received  a  ■ 
letter,  which  tells  me^  that  you  are  acquainted 
with  some  circumstances  lb  it  nearly  concern 
my  snfely. — ^'  Not  I,  mv  lord,"  This  »s  very 
surprizing,  Sir  !  this  is  tlje  letter  ;  and  shewed 
him  the  last  lelter*  Still  the  duke  bad  not 
given  him  any  promise  at  all  of  ngt  vXposiojf 
tbe  conversation.  *'  Sir,  it  is  very  odd  that 
you  should  be  pointed  out  to  me,  to  acquaint 
me  with  some  circumstances  rcfniing  to  my 
safety,  because  it  mentions  some  circumstances  , 
aa  to  the  time,  the  place  where  you  are  to  be 
found,  your  father's  being  out  of  town,  and  the 
like.*'  Tbe  prisoner  incautiously  said  irntne- 
d lately,  *^  Wy  lord,  ray  father  was  out  of  rown 
at  that  lime.".—**  At  w  hat  time,  H«r  f  Tht*  letter 
bears  no  date,  nor  htive  1  mentioned  to  you  a 
syllable  when  1  received  it :  how  came  yoa 
to  know  when  I  received  this  letter,  thai  yoa 
should  tell  roe,  your  hither  was  not  in  town  at 
that  time?  You  speak  clearly,  as  knowinU^ 
when  1  received  this  letter  ;  therefore  giv^  me 
leave  ou  this  occasion  to  tell  vou,  that  1  do  not 
only  suspect  you  kuow  of  tliis  letter,  but  that 
you  have  sent  to  me  some  other  letters  that  I 
have  received  belbre:**  then  acquainting  hint 
with  the  other  three  letters,  his  grace  oh«errioy 
n|>on  them,  that  it  was  very  odd  and  Strang!*, 
th Lit  the  I eHers  corresponded  so  certainly  and 
decisively  on  bini,  he  being  always  at  the 
places  at  the  tinoes  a|>poiniedt  and  that  he  l^cintif 
the  person  named  in  the  fuui  th  letter  too,  and  ^ 
tliat  he  knew  tl»e  time  of  the  duke-s  receiving 
that  letter,  the  duke  put  it  upon  him,  '*  Hir,  I 
am  surprised  at  the  writer  <»f  this  letter;  one 
ahould  fiiipfiooe  from  tbe  style,  and  it^  beings 
grimtaaUcadly  wrote^  tkas  ibe   pecaou  wUo 


823] 


31  GEORGE  II. 


wrote  it,  had  had  some  share  of  education  ;  at 
least  1  am  surprized  that  a  roan  that  has  had 
any  education  at  all,  can  descend  to  such  a 
means  of  getting  money.*'  "  My  lord,  your 
grace  need  not  6e  surprized  at  that ;  a  man 
may  be  learned,  and  very  poor."  Very  fond 
was  he  of  softening  things.  **  My  lord,  you 
need  not  be  affrighted :  I  dare  say  the  writer  of 
these  letters  is  a  very  madman.*'  Why  !  you 
are  very  much  concerned  to  apologize  for  the 
writer  hereof,  said  the  duke.  Picking  out  this 
circumstance,  The  man  does  not  know  me,  he 
expresses  his  very  great  surprize  at  my  appear  • 
ing  in  the  Park  with  the  ensign  of  my  order, 
and  my  being  armed — as  incautious  as  he  had 
been  before,  he  is  incautious  upon  that  too,  and 
said,  **  *Indeed  I  was  surprized  to  see  your 
grace  armed."  **  Was  you  so,**  said  the 
duke?  "  Was  yon  surprized  to  see  me  armed  ? 
Can  any  man  doubt  a  moment  who  wrote  these 
letters  P  But,  however,  Mr.  Barnard,  as  you 
insist  upon  it,  and  declare  so  solemnly  your  in- 
nocence, I  will  not  so  far  invade  the  laws  of 
bospitalitv,  whatever  crime  you  have  done.** 
(He  would  not  for  the  world  apprehend  a  man 
in  his  own  house  whom  he  had  sent  for ;  he 
let  him  go  safe  home  again ;  it  was  for  that 
reason  be  would  not  give  his  promise  not  to 
reveal  the  conversation  ;  but  in  regard  to  the 
public  he  was  determined  to  prosecute.)  The 
duke  said  to  him,  *'  Sir,  If  you  are  not  the 
writer  of  these  papers,  it  much  becomes  yon  to 
find  out  who  is;  for  your  name  is  particularly 
mentioned  in  this  last  letter;  either  you  are 
the  writer,  or  allow  me  to  say,  somebody  else 
owes  you  very  ill-will  that  was  the  writer  of 
them.*'  I  am  relyingf  merely  on  the  terms  of 
the  last  letter,  wherem  he  was  to  inform  his 
grace  of  some  secrets  that  neariy  concern  his 
safety  :  what  was  the  answer  that  the  prisoner 
made?  First,  what  would  have  been  ihe 
answer  ?  Must  not  a  roan  be  struck  with  asto- 
nishment, to  hear  he  was  one  that  was  to  in- 
form his  grace  of  things  that  neariy  concerned 
liis  safety,  so  much  to  the  hazard  of  his  own 
life  ?  What  became  him,  as  having  a  regard  to 
liis  own  reputation  and  safety  ?  To  determine, 
as  far  as  in  his  power,  to  find  out  the  writer ; 
nay  to  have  f^iven  the  duke  assurance  that  he 
would  do  it :  mstead  of  that,  what  was  his  be- 
haviour? A  smile  of  contempt — an  unman- 
neriy  lau^^^h  in  the  duke's  face,  as  if  it  did  nut 
concern  him  at  all. 

Gentlemen,  1  should  think  that  to  this  there 
can  hardly  be  a  circumstance  added  more 
clearly  to  convince  any  man  alive  of  tl>e  cir- 
cumstances of  this  man's  being  the  antiior  of 
these  kl tors ;  but  you  will  find  aften*  ards  the 
prisoner  (for  what  reason  let  him  tell  itlie  can) 
told  his  {i^race,  he  had  desired  iiis  companion 
that  was  willi  him  in  Westiiiiiiiter-Abbey  to 
leave  him  :  Why  ?  *«  Because  he  thought  the 
duke  wanted  to  tell  him  of  some  place  he  had 
for  him.'*  Good  God !  how  could  he  imagine 
he  wanted  to  tell  him  of  a  place  ?  A  person 
whom  he  had  never  seen  before  be  saw  him 
ia  the  Park,  bow  could  he  eipea  that  f  Tbk 


Trial  of  JVUUam  Barnardf 

was  his  aokward  reason  for  denfing  hb  cmd- 

panion  to  leave  him. 

1  begpanlon,  if  I  have  omitted  any  thiag; 
these  are  the  circnmatances  that  have  oeeoiKd 
to  me  on  this  occasion;  tber  ere  so  atroogaad 
necessary  in  the  proof  of  tbe  prisooer's  g«yt, 
that  I  will  venture  to  say,  it  ia  much  oaorentii- 
factory  to  an  indiflerent  person,  than  positive 
testimony— the  positive  testimony  of  any  nns, 
as  men  are  liable  to  mistakes,  as  a  mistake  is 
time,  a  misteke  in  persons,  will  ezoeediiiglj 
vary  the  case ;  but  variety  of  circomstanes, 
which  ully  in  their  owu  nature,  cannot  lie  « 
deceive. 

This  prosecution  is  commenced  merely  fcr 
the  sake  of  justice  ;  1  am  instructed  to  Hy 
from  his  grace,  it  is  perfecily  indifferent  It 
him  what  will  be  the  issue  of  this  trial:  U 
thought  it  his  duty  to  come  here,  and  Idw 
it  to  his  country  to  determine  as  they  ihiB 
thuik  proper.  • 

Tbe  Duke  of  Marlborough  awom. 

D.  of  Marlborough,  I  received  this  kte 
from  an  unknown  hand,  dated  the  99lh  of  Hs- 
vember,  and  directed  to  me,  appointing  ne  H 
meet  the  writer  on  a  certain  spot  in  Hy  oe-Mu 

The  first  Letter  read : 


To  hu  Grace  the  Duke  of  Marlborough. 

[With  care  and  speed.] 
<<  My  lord ;  xxviiii  Novemkr* 

*'  As  ceremony  is  an  idle  thing  upon  M«l 
occasions,  more  especially  to  persons  m  ■/ 
state  of  mind,  I  shall  proceed  imraediatelj  It 
acquaint  you  with  the  motive  and  end  of  ai- 
dressing  this  epistle  to  you,  which  is  eqinUy 
interesting  to  us  both.  You  are  to  know,  tbca, 
that  my  present  situation  in  life  is  such,  tbst  1 
should  prefer  annihilation  to  a  continuance  ia 
it :  desperate  diseases  require  desperate  reme- 
dies; and  you  are  the  man  1  have  pitched 
upon,  either  to  make  me,  or  to  unmake  your- 
self. As  1  never  had  the  honour  to  live  amos^ 
the  great,  the  tenor  uf  my  proposals  will  not  k 
very  courtly;  but  let  that  be  an  argument  w 
enforce  the  belief  of  what  1  am  now  goia^  ^ 
write.  It  has  employed  my  inventinn  for  smM 
tiiiie  t(i  find  out  a  metho<l  to  destroy  another, 
without  exposing  my  owu  life ;  that  I  have  le* 
complished,  and  defy  the  law.  Now  for  the 
application  of  it.  I  am  desperate,  and  mti^ 
be  provided  for :  you  havt*  it  in  your  po«rer, 
it  is  my  business  to  make  it  your  ioclioatioAt 
to  serve  mc;  which  you  must  determine  I* 
comply  with,  by  procuring  me  a  genteel  sof" 
port  fur  my  life ;  or  your  own  will  be  at  apt* 
riod  before  this  sessions  of  pariiaroent  is  ovef* 
1  have  more  motives  than  one  for  Mogliog  y** 
out  first  upon  this  occasion ;  and  I  gi*<  f*! 
this  fair  warning,  liecause  the  means  1  sb^ 
make  use  of  are  too  fatal  to  be  eluded  by  tH 
power  of  physic.  If  you  think  this  of  aPj 
consequence,  you  will  not  fail  to  meet  tbea^ 
thor  on  Sunday  next,  at  ten  in  the  Biorniegt^ 
on  Monday  0<^«  weather  ihouUl  beniey^ 


r 

8S5] 


OH  the  Black  Act* 

Biindav)  near  the  first  tree  beyofiil  the  alile  in 
H^ile-Park,  iti  the  root-walk  to  Kensiiig^toii : 
•  «ecrecy  ami  comptiance  may  preserve  you 
from  a  ilouble  ilune^ei-  of  this  hmi ;  as  tUere  is 
I  A  certain  part  of  iLe  wurlil,  where  your  death 
I  bus  morp  tlian  been  wished  for»  iimm  other 
,  tnoiives.  I  know  tlie  world  too  well,  to  trust 
I  Ibis  seeret  in  any  hreast  hut  my  own*  A  few 
liays  determine  mc  your  friend  or  enemy. 

'^  F ELTON," 

**  You  wil!  apprehend  that  T  mean  you  should 
he  alone  ;  and  depend  upon  it»  that  a  discovery 
^'aoy  artifice  in  iliis  affair  will  be  fatal  to  you  : 
my  wifely  is  insured  by  my  sileoce ;  for  ©ou- 
iioQ  only  cau  condemn  me.** 

Q.  What  did  your  grace  do  apnn  the  receipt 
of  this  letter? 

Duke  of  MarlborougL  I  went  to  the  place 
I  Ihe  time  appointed.  J I  was  at  the  first  tree 
liear  the  atile  in  Hyde-Park,  in  the  way  to 
K.en!iin^ton^  at  the  eod  of  the  terpentine  water, 
|l»elwixt  that  water  and  a  little  pond.  1  was 
tbere  some  time,  and  saw  nobody  stop  thai  I 
could  tuapect  lo  be  the  |>eraon  ;  upon  which  I 
'iRFms  going  away  :  bul  as  1  came  to  Hyde>Fark 
^rner,  1  turned  my  horse,  and  saw  a  person 
Stand  Iaiterin£(,  and  looking  at  the  water  over 
%lie  bridtjfe.  This  was,  I  lielieTCt  within  twenty 
vftrds  of  the  tree,  and  this  induced  me  to  go 
Iftck  again.  1  rorte  up  to  the  pergnn  very 
g«otly,  and  passed  by  him  once  or  twice,  ex- 
pecting' him  to  speak  to  me ;  he  did  not.  I 
made  liim  a  bow,  and  asked  him,  if  he  bad 
•omethin;^  to  say  to  mef  lie  said,  No,  I  don't 
know  you.  I  said,  I  am  th«  duke  of  Mail- 
,  iKirough  I  now  you  knotv  me,  I  imagine  you 
have  sQit-iethiniJ:  to  say  to  me.  He  said,  No, 
J  bare  not.     Then  (  rode  away. 

Was  your  grace  armed  F — I  had  pistols  l>e- 
dbre  me. 

Had  your  ^race  any  great  coat  on? — No»  I 
bsd  not.     My  star  mi^hl  easily  be  seen. 

Does  your  grace  see  any  bndy  here  that  you 
saw  there? — It  was  the  prisoner  at  the  bar. 

Had  your  grace  any  servant  or  attendant 
ivith  you  ? — ^1  hail  no  sen'aut  with  me  ;  there 
Was  a  person,  a  friend  of  mine,  at  a  goorl  dis- 
'Imnce  in  the  Park.  A  day  or  two  aller,  I  can- 
iiot  be  sure  whether  it  was  the  next  day,  or  the 
day  after  that,  I  received  a  second  letter. 

I  Counsel  far  the  Prisoner.  I  am  under  a  great 
1  difficulty,  whether  1  shall  object  against  this 
'  letter  being  read  or  not.  Your  lordship  sees 
I  ihe  ^mt  js  a  letter  sent  to  the  duke  of  Marl- 
bortiugb,  demandiug  a  very   valuable  thing, 

tvis.  a  genteel  employment  tor  life.  This  is  to 
ilie  same  noble  duke,  not  demanding  that  va- 
,  liiable  thing;  but  demanding  twu  or  three 
three  hundred  pounds  in  bank-notes.  These 
demands  are  very  differeui  antl  dintinct  from 
one  another :  sodiiferent  and  distinct,  that  (hey 
seem  to  me  to  be  different  felonies.  Rly  torJ, 
1  apprehend  one  felony,  whoever  it  may  affect, 
cannat  be  evidence  of  another  felony  ;  nor  can 
I  ftbU  leO^r,  auppoaiog  tbene  it  any  ibing  m  it 


A.  D.  1758. 


[820 


amouoting  Xq  a  felony^  be  evidence  to  another 

felony 

hut  there  were  some  acknowledgment  in  that 
directly  affecting  the  prisoner  at  the  bar  ;  but  I 
am  inclined  that  the  whole  of  this  matter  shall 
come  before  the  Court,  from  my  opinion  of  the 
riefendant^s  innocence,  and  thesubiiiantial  merits 
of  his  defence  \  and  I  think  myself  very  happy 
that  I  have  Ihe  assistance  of  such  a  Court,  wno 
are  always  counsel  for  Hie  prisoner,  where  the 
life,  pro}>erty«  and  character  of  a  man  is  at 
stake;  and  who,  under  these  circumstances, 
will  do  that  which  is  right,  admit  or  nnt  admit 
what  is  not  proper  evidence,  I  don^t  flrmljr 
object  to  it ;  I  don't  think  it  for  the  interest  of 
my  client  lo  suppress  it,  who  is  caHed  upon  to 
answer  in  this  mnUer ;  therefore  1  leave  the 
Court  to  do  as  they  think  profier* 

Coumelfor  Cr.  1  desire,  if  you  have  anj 
objections,  to  make  them  now. 

Court,  The  use  made  of  thii  letter  la  to 
support  the  evidence  of  the  first  letter,  let  tbe 
cootenis  he  what  they  will-  The  use  ihej 
make  of  it  is  to  shew,  lliat  the  |irifloiier  al  tbe 
bar  was  tlie  writer  or  sender  of  the  first  leile?^ 

The  second  Letter  read : 

To  his  Grace  the  Duke  of  Marlborough, 

**  My  lord  ;  you  receive  this  as  an  ackoow- 

ledgment  of  your  punctuality  as  4o  the  time 
and  place  of  meeting  on  Sunday  last,  though 
it  was  owing  lo  you  that  it  answered  no  pur- 
pose. The  pageantry  of  being  armed,  and  Ihe 
ensign  of  your  order,  were  useless,  and  loo 
conspicuous :  you  needed  no  attendant ;  the 
place  was  not  calculated  for  mischief,  nor  waa 
any  intended.  Jf  you  walk  in  the  west-isle  of 
Weslmitisler-Abbey,  towards  eleven  o'clock  on 
Sunday  next,  your  sagacity  will  point  out  tbe 
person,  whom  you  will  address  by  asking  h 
com|iany  lo  take  a  turn  or  two  with  you.  You 
will  not  fail,  on  inquiry,  to  be  acquaiuted  with 
the  name  and  place  of  abode,  according  to 
which  directions  you  will  please  to  seoil  two 
or  three  hundred  pound  Bank  nou^s  the  oext 
day  by  the  penny-post.  Exert  not  your  cu- 
riosity too  early  :  it  is  in  your  power  to  make 
me  grateful  on  certain  terms.  1  have  friends 
who  are  faithful ;  but  they  do  not  bark  iiefore 
thry  bite.     I  am,  Sec*  &c.  F*'' 

What  did  your  grace  do  upon  the  receipt  of 
tbifi  second  letter? 

D.  q\^  Alarlborottgh.  1  went  to  Westminster- 
Abbey  at  the  time  tbe  teller  appointed.  I  bad 
been  walking  there  about  tive  or  siac  minutes 
before  1  saw  any  body  that  I  suspected ;  theti 
I  saw  the  person  l  had  seen  t»eibre  in  Hyde- 
Park,  and  another  person  who  seemed  lo  be  a 
good-looking  man,  a  i^uhsianiial  tradesman : 
they  came  in  and  looked  on  Ihe  monuments.  * 
I  knowing  ihe  person  again,  went  and  stood 
by  them  ;  hut  the  orison er  said  nothing  to  me  : 
soon  alter  they  both  of  Ihem  went  towards  the 
choir  :  tbe  stranger,  1  may  call  him,  went  into 
the  choir  J  and  ihe  priaoner  turned  back  aiitl 


827] 


31  GEORGE  IL 


Trial  of  William  Barnard^ 


[m 


came  towirdf  me^  but  did  not  speak  to  me. 
Then  I  asked  him,  if  be  bad  any  thing  to  say 
to  me,  or  any  commands  for  me  ?  He  said,  No, 
my  lord,  I  have  not.  I  said,  Sure  you  haTe  P 
He  said,  No,  my  lord.  Be  walked  up  and 
down  one  side  tbe  isle,  aud  1  the  other  to  gi?e 
him  a  little  more  time ;  but  be  did  not  sp^ : 
then  1  went  away  out  at  tbe  great  door,  and 
left  him  in  the  Abbey.  I  looked  back  to  see 
if  he  watched  me  going  out,  but  I  did  not  see 
him. 

Had  your  grace  any  body  with  you  in  the 
Abbey  P— There  were  two  or  three  people 
placed  in  disguise,  ready,  if  I  had  given  Uiem 
the  signal,  to  ha?e  him  lAken  up.  Though  1 
was  certain  it  was  the  same  person  whom  I 
had  seen  and  spoke  to  in  the  Park,  I  thought 
not  proper  to  ffive  the  signal,  but  to  run  a  little 
longer  risk  rauier  tlian  to  take  up  an  innocent 
man.  Very  soon  after  this  1  receired  another 
letter ;  this  is  it 

The  third  Letter  read : 

To  his  Grace  the  Duke  qf  Marlborough. 

*'  My  lord;  I  am  fully  conrinced  you  had  a 
companion  on  Sunday.  I  interpret  it  as  owing 
to  the  weakness  of  human  nature ;  but  socb 
proceeding  is  far  from  being  ingenuous,  and 
may  produce  bad  effects ;  whilst  it  is  impossible 
to  answer  tbe  end  proposed.  You  will  see 
roe  again  soon,  as  it  were  by  accident,  and 
may  easily  find  where  I  go  to ;  in  consequence 
of  wluch,  by  being  sent  to,  1  shall  wait  on  your 
grace,  but  expect  to  be  quite  alone,  and  to  con- 
verse iu  whispers.  You  will  likewise  gi?e 
your  honour,  upon  meeting,  that  no  part  of 
the  conversation  shall  transpire.  These  and 
the  former  terms  complied  with,  insure  your 
safety :  my  revenge,  in  case  of  non-compliance, 
(or  any  scheme  to  expose  me)  will  be  slower, 
but  not  less  sure ;  and  strong  suspicion  the  ut- 
most that  can  possibly  ensue  upon  it ;  while 
the  chsnccs  would  he  ten- told  against  you. 
You  will  possibly  be  in  doubt  after  the  meeting, 
but  it  is  quite  uecessary  the  outside  should  be 
a  mask  to  the  in.  Tbe  family  of  the  bloods  is 
not  extinct,  though  they  are  not  in  my  scheme." 

Duke  of  Marlborough.  At  about  two  months 
afler  the  receipt  of  this,  I  received  another 
letter ;  this  is  it 

The  fourth  Letter  read : 

To  his  Grace  the  Duke  of  Marlborough, 

'<  May  it  please  your  grace ;  I  have  reason 
to  believe,  that  the  son  of  one  Barnard,  a  sur- 
veyor in  Abiogdon-buildings,  Westminster,  is 
acquainted  with  some  secrets  that  nearly  con- 
cern your  safety;  his  father  is  now  out  of 
town,  which  will  give  yon  an  opportunity  of 
questioning  him  more  privately.  It  would  be 
useless  to  your  grace,  as  well  as  dangerous  to 
me,  to  appear  more  publicly  in  this  affair. 
Your  sincere  friend,  Anontmous.'* 

"He  freaueaUy  goes  lo  Storey's  Gatt 


IMmi^  Marlbonmgh.  There  it  iiodsls4i 
this  letter.  About  a  week  or  ten  days  after  I 
received  this  letter,  1  sent  m  meaage  Is  Ihs 
coffee-house,  by  Mr.  Merrick,  who  rvtand 
and  told  me  he  found  Mr.  Barnard  there,  sU 
that  he  said.  What  could  the  duke  of  llni- 
borougb  want  with  him  P  He  had  spoke  wtt 
him  once  in  Hyde-Park,  and  aiiothertiBsii 
Westminster- Abbey .  Tbe  messenger  toU  ai^ 
he  said  he  would  wait  on  me,  which  be  did  H 
Marlborougb-House,  about  half  an  hoact()s 
ten  o'clock,  I  think,  on  the  Friday  following. 

Prisoner,  It  was  Thursday,  my  lord. 

Duke  of  Marlborough.  I  cannot  be  lontf 
to  the  day.  When  he  came  in,  I  knew,  at  fat 
sight,  it  was  the  same  person  that  I  bad  Mi 
in  tbe  Park  and  in  tbe  Abbey.  I  desired  bin 
to  walk  wi^h  me  into  a  room,  and  immediiklj 
shut  the  door  when  we  were  in.  I  asked  hia 
as  before ;  he  said,  he  bad  nothing  to  sty  H 
me;  then  1  told  him  of  the  last  letter  1  re^ 
ceived,  that  it  mentioned  his  name,  and  that  hs 
knew  something  concerning  my  safety;  k 
said,  be  knew  nothing  of  it.  Then  I  recujti- 
Uted  all  the  letters,  beginning  with  tbelii^ 
and  remarked  to  him,  that  it  was  strange  II 
me,  that  a  man  that  wrote  sq  very  com^ 
without  false  English  in  any  shape,  sbonUhi 
guilty  of  so  low  an  action ;  he  said,  A  sa 
may  be  very  learned,  and  very  poor.  1  tha 
took  notice  of  the  second  letter,  and  said,  tkri 
must  be  something  very  odd  in  tbe  man ;  bi 
said,  1  imagine  the  man  must  be  mad.  I  Midi 
be  seems  surprised  that  1  should  have  pirtsbs 
said  he,  I  was  surprised  to  see  your  grace  widi 
pistols,'  and  your  star  on.  I  saiJ,  Why  «ii 
you  surprised  at  thatf  His  answer  was,  after 
stopping  a  moment,  It  was  so  cold  a  day ;  I 
wondered  you  had  not  a  great  coat  on :  tnei  I 
afterwards  shewed  him  the  letter  again  wbcrt 
his  name  was  mentioned,  and  walk^  with  bin 
to  the  window ;  and  as  1  read  it,  ii  hen  1  caat 
to  that  part  where  it  said  his  father  was  oiit«( 
town,  he  said,  It  is  very  odd,  my  father  «ai 
then  out  of  town.  I  said  nothing  to  bio  of 
that,  though  it  struck  me  a  good  deal,  as  tbaif 
was  no  date  to  tbe  letter.  1  said,  if  vou  an 
innocent,  it  behoves  yon  much  more  tiiao  nw 
to  find  out  the  author  of  those  letters,  parties- 
larly  the  last ;  for  it  was  an  attempt  to  blast  bii 
character  behind  his  back ;  he  seemed  to  gift 
me  a  smile,  and  away  he  went.  I  did  not  ap- 
prehend him  then. 

Counsel  for  the  Prisoner.  In  whatmansv 
did  your  grace  receive  this  first  letter  f 

Duke  of  Marlborough.  I  am  Master  of  ibi 
Ordnance.  Somebody  or  other  had  pot  it  is 
under  the  door  of  the  office  in  the  nigbt-tio^ 
and  tbe  keeper  of  the  door  sent  it  to  mctbeostf 
day. 

As  to  the  second  letter,  which  way  dkl  p^ 
grace  receive  that  ? — ^Tliat  was  sent  tbe  asSi 
way,  by  being  put  under  tbe  door  as  tbe  otbll» 

Counsel,  In  consequence  of  tbe  first  IsMfi 
your  grace  went  into  the  Park  on  boras  biA 
and  was  there  some  time  witkoul  sBskif  af 
Wen  then  n0»  pi4* 


I  body  yes 


on  the  Black  Aci' 

^ .  tf  Marth.  I  law  ic?  f^ral  pcopt«  on 
ici  ftoil  •QDie  fow  tvalkittg  b  a  Uany 

By  lord  duke,  «fli!f  you  bad  seen  this 
'itjrJD^t  was  there  any  ihlng^  (^<iiri£f 
uch  »8  hunljoi;  a  ditck,  or  the  like  f 
hiQg  in  tho  world  aa  I  saw ;  it  was  a 

laid  tbf  re  wav  another  person 
'an   altt'MUnt  oo  your  ifractj ; 
lifght  that  jrerson  be  otF  when  you 
ing  to  the  prisoner  ?— I  cannot  tcit 
I  bad  tipaJct  to  Uim  to  ketp  a  f^reat 

ill  riew  of  y*ur  grvce?— I  dare  say 

ok  any  person  cfjuiHy  see  itiat  per- 
dl  as  your  grace? — 1    luppose   be 

Qur  ifrace  there  at  the  time  f — I  was 

before  the  time,  I  beliefe. 
iu  the  least  ofl'er  to  Ibltow  your  grace? 
-f eemed  to  go  the  ntber  way. 
topect  to  the  second  letter,  your  pmce 
Irdiogf  to  appointment  to  Wcsimin^iter 
Id  ^w  the  prisoner  and  another  per- 
'  into  the  Abbey ;  hd'ore  tlint  «i||ier 
1  left  hittii  liad  your  grace  been  near 
had  ;  1  stood  by  him  in  bopea  he 
ak  to  me^  if  he  was  the  i>er8on  that 
letters. 

r  the  circumstance  was  not  such, 
lusr  p«r«ou  rniglit  rery  well  believe 
wanted  to  speak  to  the  prisoner  f — 
not  tell.  1  sttwd  fery  near  the  pri- 
lling hfm  to  s|»eak  to  me.  It  is  pos- 
light  think  so, 

there  were  not  at  that  time  sereral 
tt^ndiug  on  yoar  grace  ? — ^Tbcrc  were 

ir  grace  speak  to  either  of  them  in 
?— No,  I  did  dot. 

r,  if  there  was  any  other  person  in 
:ef  Abbey  at  that  lime,  whether  that 
in  mii,'ht  not  have  taken  Mr.  Bar- 
our  grace^s  cnmpaolon,  as  your  grace 
Im  P-^i^poa  my  word,  1  eannol  tell 

lere  be  a  person  to  whom  that  ex* 
in  llie  third  letter,  might  be  applied, 
19  votir  grace^s  companion «  besides 
kard? — Yet,  it  might  lie  applied  to  a 

that  went  away  with  me  in  the  coach 

v  your  gntB  did  not  bow  several 
i  prisoner  before  joti  spoke  ?— Ni>t 
k  I  did. 

With  respect  to  the  third  letter, 
^iMMrd  no  more  of  that  till  the  fourth 
Mftrlb.     J  did  not;  and  when 
I  aetil  to  Mr.  Barnard. 

know  Mr.  Barnard  before 
r  letters  f— No,  I  did  Qot 

llfnice  now  know  whether  be  was 

eh  situation  in  Kf^,  sm  answered  to 

kioo  in  tbo  letters  P*^l  doa*t  know 


A-  D.  175d. 


[830 


the  least  thing  of  Kim,  either  eharaeier  or  clc^ 
cum«tauces. 

Thru,  nbAtracted  frr>m  these  circumstanoes, 
sliiMtId  vuur  gmr«  haire  entertained  any  suspi-. 
cioh  of  Inm  iiuu^  thuu  of  any  other  person  i*— 
I  did  not  know  there  was  such  a  man  in  the 
world. 

When  he  came  to  your  erraceN  house,  did 
he  come  in  Wfy  readily  ? — ^He  did. 

Whether  his  answer  Vns, '  1  was  ^^urpHsed  to 
see  you  armed  too/  or  '  I  was  sorprihptl  to  see 
you  armed?' — I  cannot  take  upon  mc  to  say 
whether  he  laid  fiach  an  empha^ii  on  it  or  not. 

Then  he  made  no  secret  of  seeing  jour  graci 
in  the  Park?— No. 

Nor  in  the  Abbey  P — No, 

Your  grace  mentioned,  be  satd«  It  is  very 
odd,  my  father  was  out  of  town  then!  couM 
your  grace  apply  that,  in  the  manner  it  was 
spoke,  that  his  father  was  out  of  town  when 
the  message  came  to  him?— I  really  under-* 
stood  him,  that  he  knew  his  father  was  out 
of  town  at  the  lime  ot  hi^i  writing  the  letter. 

Hid  your  grace  mentiou  the  time  you  re- 
ceived itP^No,  1  did  not  mention  any  time. 

Did  lie  come  ipuneiually  to  his  times'^ — He 
did  ;  I  think  the  mt-ssen^^er  said  he  would  wait 
on  me  about  half  an  hour  after  ten. 

In  what  manner  was  ho  apprehended f^ — 1 
do  not  know  ;  1  umlerslood  he  was  snmmoned. 

It  has  been  said,  he  went  away  with  a  smite; 
Pray^  my  lord  duk<>,  might  not  that  smite  ex< 
press  the  cousciousness  of  his  innocence  ai 
well  as  any  thing  else? — I  shall  leave  ttiat  to 
the  Great  Judge. 

lie  said,  A  man  might  be  verv  learoetl,  anil 
very  poor  ;  Does  your  grace  know  whether 
this  person  at  the  bar  is  either  learned  or  poor  f 
•— J  do  not  know  indeed. 

May  not  that  expression  fall  from  any  mtn 
wliaterver  P—  I  cannot  say  as  to  that. 

Jama  Merrick  sworn. 

Mtrrick,  I  was  directed  frotD  bis  grace  to 
carry  a  message  to  Storey  V Gate  coffee- house  j 
f  went,  and  there  was  the  prisoner  at  the  bar; 
1  told  bimi  the  duke  of  Marlborough  wanted 
to  speak  with  him  ;  he  expressed  some  sur- 
prize at  what  the  duke  should  want  with  himt 
but  no  fear. 

When  was  this  ? — This  was  on  Tuesday  the 
S5th  of  April,  to  the  evening  ;  and  he  said,  he 
would  wait  on  the  duke  on  the  Thursday  foU 
lowing,  between  ten  and  eleven  o'clock. 

C  ross-exam  iuatioo. 

Wbit  reaiou  did  he  give  for  not  waiting  oi^ 
his  grace  sooner? — Hja  excuse  was,  he  wai 
going  out  of  town. 

Did  he  say  any  thing  to  yon  of  bii  having;^ 
seen  the  duke  before? — He  did,  he  said,  ha 
had  seen  hii  grace  three  times  iu  his  life,  ouoe 
in  H'yde-i>ai  k,  and  once  in  West  minster- abbey, 
and  once  at  the  camp  atBytleet;  be  s;iid,  ne 
did  not  know  the  duke  vvhcu  he  saw  him  ia 
Hyde  park,  till  the  duke  himself  told  him  w  ha 
he  was. 


831]  31  GEORGE  11. 

Did  he  tell  you  what  had  passed  either  in 
the  Park  or  in  tiie  Abbey  ? — He  told  me,  that 
ia  the  Parle  the  duke  rode  up  to  him,  and  asked 
him,  Sir,  do  you  want  any  thine  with  me?  his 
answer  was,  No.  Then  the  duKe  asked  him, 
It*  he  knew  who  he  was?  he  answered,  No, 
again.  Then  the  duke  told  him,  he  was  the 
duke  of  Marlborough  ;  then  he  made  his  bow : 
and  in  Westminster-abbey  he  told  me  he 
thought  the  duke  had  spoke  to  him ;  but  on 
turning  about  he  said,  he  did  not;  aud  he 
turned  and  went  away. 

Where  had  you  this  conversation  ?— This 
was  in  the  room  in  the  coffee-house  by  our- 
selves. 

Did  he  tell  you  this  voluntarily  ? — He  did. 
At  first  he  seemed  surprised,  and  then  said,  he 
recollected  these  circumstances. 

Did  he  express  any  signs  of  fear  ? — No ;  but 
he  seemed  much  surprised. 

William  Martden  sworn. 

Martden,  I  was  ap|)ointed  by  his  gfraee  the 
duke  and  justice  Fielding  to  watch  the  duke 
in  Westroioster'abbey,  and  had  two  constables 
there  in  order  to  apprehend  the  person,  if  his 
grace  had  thought  proper  to  give  the  signal. 

Were  you  all  together  ?-^No,  but  so  dis- 
persed that  our  intention  might  not  be  known  ; 
1  was  within  the  choir  hearing  the  prayers  for 
some  time ;  there  was  a  gentleman  near  the 
duke  with  a  sword,  whom  I  thought  the  person 
at  first,  but  I  learned  afterwards,  he  was  an 
acquaintance  of  his  grace's ;  I  was  not  ap- 
prised that  any  such  |»er8on  would  attend  him  : 
I  saw  Mr.  Barnard  and  another  person  come 
in,  and  his  eye  was  fixed  on  his  grace  as  he 
walked  in  the  isle ;  they  walked  down  the 
middle  isle,  not  directly  to  his  grace ;  in  a  little 
time  I  observed  his  ^race  to  meet  them,  and 
as  I  thought  by  the  behaviour  of  Mr.  Barnard, 
that  he  spoke  first  to  the  duke,  presently  after 
that  Mr.  Barnard's  partner  went  off  from  him  ; 
then  Mr.  Barnard  went  and  stood  looking  at  the 
duke ;  then  I  thought  Mr.  Barnard  was  the 
person  ;  so  I  did  not  mind  the  other :  i  saw 
nis  grace  speak  to  him  again,  but  was  not  near 
enough  to  hear  what  they  said :  after  that,  his 
grace  walketl  backwards  and  forwards  once  or 
twice,  and  went  out  at  the  door  he  came  in 
at;  the  other  gentleman  immediately  fol- 
lowed the  duke;  I  followed  to  see  what 
passed  ;  the  gentleman,  the  duke's  acquaint- 
auce,  walked  opposite  to  the  duke ;  Mr.  Bar- 
nard was  got  looking  behind  a  post ;  any  body 
that  was  on  that  side  he  was  on  could  see  him, 
but  a  person  on  that  side  his  grace  was  on 
could  not ;  I  believe  it  was  impossible  for  his 
grace  to  see  him  at  that  time ;  be  looked  after 
his  grace  a  considerable  time,  then  walked 
back :  I  followed  his  grace,  and  told  him  what 
observations  1  had  made ;  his  grace  imme- 
diately told  me,  the  man  in  black  was  the  man 
that  he  had  seen  in  Hyde- park :  then  1  said, 
I  wonder  your  grace  did  not  give  the  signal  to 
have  htm  apprehended ;  his  grace  aaid  the  same 
4 


Trid  of  William  Barnard^ 


[8» 


as  repeated  here,  He  would  rather  kft  k  be  t 
little  longer,  than  to  take  up  an  innooant  aia; 
he  should  hear  of  him  a^n,  he  apprebaded, 
for  he  seemed  to  be  afraid  to  speak  to  kirn  it 
that  time. 

Was  he  apprehended  after  this?— Hewn. 
1  procured  him  to  come  before  justice  Fidd- 
tt>^»hy  a  sham  summons,  in  which  he  was  ac- 
cused with  assault  and  batterjr :  he  was  not 
taken  up  till  he  came  there,  then  be 
surprised. 


to  take  his  examination ;  I  went  as  it  wen  Ml 
of  complaisance  to  him  not  to  leave  himMne; 
he  talked  a  great  deal,  but  1  did  not  make  sack 
observations  of  it  as  I  should  hava  doasifl 
had  thought  of  his  coming  here :  I  remsahr 
he  said  he  ordered  his  friend  to  walk  eC  Ail 
he  mi^ht  see  what  the  duke  wanted  witbUa; 
and  said,  he  thought  the  duke  must  cometlMi 
bv  appointment:  he  mentioned  sondhai 
about  the  duke's  giving  him  a  place  or  post}  I 
think  he  said  he  ordered  his  friend  to  walk  4 
to  see  if  the  duke  would  give  him  some  pha; 
or,  Perhaps  the  duke  wants  to  gite  Ml 
place. 

Are  you  sure  he  said  the  duke  wanted  tsgin' 
him  a  place  ?   or  that  his  friend  said,  Ga  to- 
wards him,  perhaps  the  duke  wants  to  p» 
vou  some  place  ? — 1  cannot  be  sure  whldi;  I 
know  the  word  '  place'  was  meutiooed. 

Cross  -examination. 

Where  is  the  summons  ?— This  is  ibeiw- 
mons  (producing  one) ;  1  did  not  serve  it « 
the  day  it  bears  date ;  it  was  made  oat  n 
Saturday  the  29th  of  April.  1  was  to  havegim 
him  it  that  afternoon,  but  I  was  told  be  ml 
gone  to  Brentford ;  so  I  went  early  on  Ito* 
day  morning  following,  and  gave  it  him:  ilui 
was  only  made  out  as  a  decoy ;  the  nineii 
it  is  one  of  the  constables  that  was  fixed  ■ 
Westminster-abbey,  named  Roger  Boucher. 

Did  he  shew  any  unwillingness  to  come?— 
No,  none  at  all ;  he  looked  at  it,  and  sai4,  h 
is  a  summons  from  Mr.  Fielding ;  he  read  it 
over,  and  said,  Roger  Boucher!  I  know  si* 
thing  of  him  :  give  my  compliments,  tell  hiB 
I  wUI  wait  on  him. 

As  to  this  place  that  he  looked  throflght 
which  door  is  it  at  ?— It  is  the  west  gate  oeir 
the  gate- house ;  just  at  the  C(»rner  there  ii 
another  ^te,  and  next  to  the  wall  is  a  sort  of  * 
post,  which  is  what  he  looked  through,  ork][« 

Is  not  that  gate,  as  vou  call  it,  a  close  win- 
scotted  door  ?— It  is  a  door,  but  the  place  where 
I  mean  is  a  post ;  he  peeped  between  the  po^. 
and  the  wall.  I  have  never  been  since  to  look 
at  it;  if  there  is  not  a  hole  between  tbatii* 
the  wall,  he  must  look  by  the  other  side  of  il* 

Which  way  was  his  head?— That  wif In- 
wards the  gentleman  who  was  close  to  tk> 
wall,  opposite  him ;  he  must  have  tomsd  kf 
head  farther  from  the  wall  to  have  sect  kP 
grace,  as  bis  grace  was  going  to  take  MCk 


833]  on  the  Black  Ad. 

Prisoner,  I  ara  eaiirely  innocent  of  this  af- 
fair with  wkicfa  1  ttm  cliarVed,     J  leavjs  it  to  tlie 
,t    Court  mnd  the  jury,  with  the  evideace  that  vi^ill 
u    be  produced. 

For  (he  Prisoner, 

John  Barnard  sworn. 

J.  Barnard,  I  am  lather  to  the  prlioner  at 
the  bar. 

What  is  hii  empbv  ? — tie  In  evupkjed  in 
ID}'  business  as  a  biiiiJiT  and  surreyor  jirio^ 
cipall  V  ;  in  aot  odIj'  that,  and  ttrawing-  plaii!*, 
bat  also  in  receirinpr  i^i-eat  sums  iif  luofiey. 

Have  liis  accounts  always  stood  rig^ht  and 
clear  ? — They  always  bate, 

l>o  you  look  upoD  hirn  to  be  a  sober  man  ? 
—I  bare  b:id  nrreat  reason  to  believe  htm  suchf 
more  partlctilarly  lately. 

Has  be  he  en'  jiosaessed  of  large  sums  of 
tnotiey  ? — He  has,  of  coniiderabie  suma;  I 
vbave  uftener  asked  him  for  mouey  titan  be  me. 
Had  you  any  occasion  to  send  hiiu  to  Ken- 
jJD^ton  on  Sunday  the  4tb  of  December  f-^I 
had  notbiogr*  but  circumstances  brought  the 
day  to  m  V  inimt  since :  I  CT^r p  him  nn  order  on 
ibatStioiIay  morning,  whe^i  we  were  a  I  break- 
fast, to  -^0  to  Keosiiigtoij,  to  know  whether  there 
iraa  some  money  paid  by  the  treasurer  of  the 
^l4irnpikes  for  (gravel:  1  bare  a  brother  there, 
oajned  ioaeph  ;  he  went  there  mu\  did  hit  biist- 
iiea<i,  and  dined  witli  my  brother. 

Hiiw  do  you  know  that? — Because  he  toUl 
ine«o;  and  the  solicitor  of  the  turnpike  told 
^me  be  had  been  with  him,  and  in  cotisequeoce 
^of  which  1  bad  my  money  after wardf^. 

Haf  *-"  |oii  ever  beard  your  son  take  any  no- 
iticeof  his  meeting  wnih  the  duke  of  Marlbo- 
rough thutdayp — W'lieu  he  came  hume,  he 
told  me,  he  had  met  the  duke  nrMarllinroiigrh, 
and  tbe.se  circumstances  of  his  ^race'^  takings 
notice  ot  him  ;  he  mentioned  it  as  an  exiraor- 
djnary  tbin^.  I  ai>ket1  him,  if  he  had  not 
looked  a  little  impudently  (us  he  has  a  oi^ar 
,  sight)  at  Ittm,  or  pulled  his  glass  out  P  He 
^said,  be  saw  another  i^fentleman  at  a  distance, 
(Kod  the  duke  wan  armed ;  and  he  ima^i^^ioefi 
,tbere  might  he  a  duel  goiug  forwaidf ;  be  baa 
^ftom  that  time  to  this  mentioned  it  as  a  very 
f  strange  event  several  times  in  my  houac,  with- 
out any  reserve  at  all. 

C  ross-exam  ioation* 

At  the  time  you  sent  your  son  to  Kensington 
^OD  the  4th  of  December,  suppose  you  had  not 
t^ifen  him  an  order  to  go  there,  whether  \n* 
was  not  at  liberty  to  go  where  be  pleased  ? — 
Vea ;  I  never  restrain  him. 

Did  he  say  be  was  surprised  to  see  the  duke 
without  a  great  coat  f—l  cannot  remember  that 
particular 

Did  you  hear  hirn  mention  hia  seeing  the 

<liake  ot  Marlborough  in  Westminster- Abbey  ? 

t*-^t    have  very  often,  aad  very  jMibticIv,  and 

.with  some  surpri^ee;  a.i  he  has  thai  in  Uyde- 

Fark.     I  said  to  him,  I  wotdd  not  bare  you  be 

VOL,  XIX. 


A-D*  17S8,  [834 

public  in  speaking  of  things  of  this  kind,  lest  a 
use  be  made  of  it  to  your  disadvantage. 

J'homas  Barnard  sworn. 

T*  Barnard.  I  am  first  cousin  to  the  (trisoner 
at  the  bar*  On  Satiirday  the  3rd  of  De- 
cember 1  was  at  Kensioi^ton,  and  lay  at  my 
uncle's  house  there  and  ilintd  then*.  On  the 
Sunday  the  prisoner  came  there  before  ihuner, 
be  said  be  bad  Ijeeu  to  do  some  bii^inests  that 
way.  He  dined  with  us ;  there  were  my 
uncte,  aunt^  be  and  1 ;  he  related  that  circum- 
stance to  us  of  meeting  with  the  duke  of  Marl- 
borough in  Hydt?-  Park  ;  he  said  he  rode  up  to 
him,  and  asked  if  he  knew  who  be  was ;  he 
answered,  No  ^  he  replied,  I  am  the  duke  of 
Marlborough.  He  related  it  with  some  cheer- 
fulness, though  as  matter  of  surprize. 

How  long  have  you  known  the  prisoner?— 
From  his  birth  :  he  is  in  business  with  bis  fa- 
ther ;  I  always  understooil  he  would  succeed 
his  father ;  I  never  knew  him  to  behave  any 
otherwise  than  well  in  my  life.  I  never 
thought  him  eirtravaganl,  nor  never  beard  so  ; 
I  had  always  looked  upon  him  to  be  an  honest 
man  ;  bis  father  is  in  fery  great  business. 

Sliould  you  look  upon  it,  that  a  small  place 
would  he  equal  to  the  chance  of  succeeding  his 
father  in  his  busineKS? — 1  should  never  nave 
thought  of  such  a  thing  ;  I  look  upon  his  situa- 
tion in  life  to  he  a  v£>ry  extraordinary  thing  :  I 
thought  be  would  give  the  prefereticc  to  that 
above  any  thing  else. 

Cross-exa  m  i  n  ati  on . 

Do  yon  thiuk  he  would  refuse  a  gooil  place f 
— No  man  would  refuse  a  place  that  is  to  bii 
advantage. 

Jiisep h  Barnard  sworn , 

J.  Barnard.  I  am  uncle  to  the  prisoiier  at 
the  bar  ;  I  live  at  Keubiugtou  ;  my  nephefr* 
Tliomas  Barnard,  lay  at  my  house  on  the  Sa- 
turday niiiht,  and  dined  with  the  prisoner  at 
the  bar  oo  the  Sunday.  I  remember  he  then 
njenlfoneil  having  met  with  the  duke  ol  Miirl- 
iKiruugh  iu  Hyde  Park,  while  we  were  sitting 
at  dinner,  t  said  J  wus  surprised  he  should 
meet  with  him  that  day  ;  he  said  be  saw  hut 
one  gentleman  at  a  distance,  and  the  duke  was 
armed;  and  his  grace  looked  biro  full  in  the 
face,  very  earnestly  (which  he  seemed  to  sjK'ak 
with  a  great  deal  of  pleasure  to  me) ;  he  ii 
very  near-sighted,  he  can  see  itolhing  at  a  dis- 
tance without  the  use  of  a  glass.  1  have  beard 
him  since  speak  four  or  five  times  of  seeing  the 
duke  in  VVesminster- Abbey. 

How  long  ago? — About  a  month  ago.  Ha 
is  brought  up  under  his  father  in  very  consider- 
able business,  and  a  man  of  some  pro])erty  be- 
sides, and  was  employed  as  his  clerk  or  book* 
keeper. 

Is  he  a  sober  man  ? — Very  sober ;  I  never 
beard  to  tlie  contrary  ;  neither  flid  I  evej;  bear 
hia  father  speak  of  him  as  idle  or  dilatory. 

Thamat  Calcui  sworn. 
T.Calcut.    I  lireatKensingtou:  I  remetti- 


«S5] 


SI  OEOROE  11. 


Trial  of  William  Barnard, 


[896 


berthe  prisoner  coming  there  on  a  Sunday 
morniogf ;  a  ?ery  cold,  foegy  morning; :  with 
some  mestai^e  from  bis  fatlier  to  me,  to  know 
whether  the  solicitor  had  paid  some  money  or 
not.  He  was  nnder  his  father,  as  I  am  under 
mine ;  he  desired  me  to  go  with  him ;  I  said. 
Stay  and  dine  with  me :  he  said,  he  could  not 
promise,  because  he  bad  promised  to  dhie  with 
his  uncle  Joseph :  he  went  into  the  parlour,  and 
said,  It  is  rastly  cold :  there  has  been  the  oddest 
accident  happened  as  1  came  over  the  Park !  the 
duke  of  Marlborough  came  up  to  me,  and  asked 
me,  if  I  knew  him  ?  I  said,  No.  He  asked 
me,  if  1  wanted  any  thing  with  him  P  I  told 
him,  No.  He  said,  I  am  the  duke  of  Marl- 
borough, if  you  want  any  thing  with  me ;  then 
the  duke  weut  away,  and  lie  came  there.  He 
exprcKsed  a  great  surprize  at  it,  aud  I  thought 
it  a  ?ery  odd  affair. 

Henry  Clive,  esq.  sworn. 

H,  Clive,  1  hare  known  the  prisoner  two 
years ;  1  remember  dining  with  him  on  the  8th 
of  December,  at  his  father's  house^  with  a 
great  deal  of  company  ;  1  heard  him  then  say 
at  dinner,  that  some  few  days  before,  he  had 
met  the  duke  of  Marlborough  in  Hyde-park ; 
that  the  duke  asked  him,  if  he  had  any  business 
with  him?  He  said.  No;  he  then  told  him 
who  he  wns,  and  asked  him  the  same  again  ; 
he  said.  No.  That  the  duke  seemed  in  some 
confusion,  aud  was  armed;  and  bethought  he 
was  about  a  duel ;  and  indeed  I  thought  it  was 
a  ?ery  ^rcat  lie.  1  ha?e  gone  very  frequently 
to  his  fathcr*s  in  relation  to  Brentford  Bridge. 
I  have  no  other  acquaintance  with  him,  only 
going  to  his  father's,  so  cannot  say  any  thing  to 
his  character,  either  frugal  or  extravagant. 

C.-an  you  name  any  body  that  dined  there 
that  d»y  !* — Yes,  there  >%a8  Mr.  Wilson  and  his 
lady,  Mr.  Tiiustall  and  his  lady,  another  gen- 
tleman and  his  wife,  and  the  prisoner's  younger 
biulUcr  that  is  at  >Vestmiiibter  school. 

Mrs.  Mnrj/  Wiison  sw or u. 

Mrs.  Wilstm.  I  dined  at  Mr.  Barnard's  on 
Thursday  the  ath  of  December  ;  the  prisoner 
I  remember  said  lie  had  been  in  Hyde-Park 
Home  days  before,  aud  there  he  saw  a  gentle- 
man on  horseback  come  up  to  him,  and  asked 
liim,  if  he  had  any  thing  to  say  to  him?  He 
•aid.  No ;  then  he  said,  1  am  the  duke  of 
tllariborou^h,  now  you  know  me,  have  you 
any  iirmi;  to  say  to  me  i*  He  said.  No.  He 
talked  of  this  very  freely  to  us  all. 

Jutncs  (trecnwood  sworn. 

(SrecnwMtd,  1  live  at  Deplford,  with  a  re- 
Ulion  in  the  brewin^-wuy;  I  came  fmm 
Deptford  on  Saturday  to  the  prisoner's  father's ; 
aud  on  the  Sunday  following  I  was  there  at 
breakfast;  I  solicited  the  prisoner  to  get  him- 
self ilresded  to  go  with  me  mto  the  Park,  beintr 
to  meet  n  person  at  twelve  o'clock  ;  I  with  a 
good  deal  of  difficulty  got  him  to  dress  him- 
self; 1  put  my  shirt  on  in  the  parlour,  and 
tiler  that  he  put  oq  hia;  I  fane/  we  braak- 


fasted  about  nine  o'clock ;  when  we  got  to  the 
end  of  Henry  the  7th'a  chapel,the  prisoner  wmU 
have  gone  the  other  way  mto  the  Park  withott 
going  through  the  Abbey ;  I  took  held  of  kii 
sleeve,  and  said,  Barnard,  you  shall  go  thnwrt 
the  Abbey;  this  was  a  little  after  eleven ;  this 
was  no  unusual  thing;  we  have  lernaltimi 
walked  in  the  Park,  and  aometimes  parted. 

Which  is  the  neareat  way  to  the  Parkf-I 
do  not  know  which  is  the  nearest  way,  throitk 
the  Abliey,  or  by  the  side  of  it ;  this  was  toi 
first  time  I  belioTe  that  1  ever  aaw  the  dmim- 
ment  of  general  Hargrave.  After  that  wt 
walked  down  to  the  monument  erected  at  Ike 
public  expence  for  captain  Cornwall;  tk 
preacher  was  in  the  pulpit ;  when  we  was 
standing  at  captain  Cornwall's  mononBeot,  Ihi 
prisoner  made  some  observation  en  thecnoh 
tion  of  it  in  his  own  way.  After  we  had  sltjci 
there  some  time,  I  saw  his  grace  the  daks  sf 
Marlborough,  who  was  got  pretty  near  uii 
upou  seeing  the  duke,  1  j<»gged  himbjthi 
elliow,  and  said,  Step  this  way ;  hesecmBdli 
look  at  him. 

Had  you  heard  what  happened  in  Hjih 
Park,  previous  to  this?— 1  had;  I  bcUevcil 
was  told  me  by  the  prisoner  at  the  bar ;  sa  Bf 
jogging  him  we  walked  up  the  middle  iibli- 
wards  the  choir.  I  said.  Did  you  see  that^ 
tlemau  in  the  blue  coat,  or  do  you  know  hw? 
No,  said  he,  not  1.  No,  said  1,  it  is  tbedib 
of  Alarlborough ;  we  will  wall:  to  the  dmbi- 
ment  again.  The  duke  came,  and  plaeid 
himself  pretty  near  me  a  second  time;  after 
this  we  walked  away.  1  believe  we  walkid 
some  considerable  time  in  that  isle  in  whiebii 
the  monument  of  sir  Godfrey  Kneller,  tbcffl 
believe  we  passed  and  repassed  a(?ain. 

Why  did  you  jog  him  ? — Because  he  bvarf 
near-sighted.  At  last  I  think  it  so  happnN, 
we  passed  the  duke  between  two  of  tbepillin; 
and  as  1  had  hold  of  his  arm  walking  together, 
there  was  barely  room  for  three  people  to  psa 
u-breast ;  the  duke  rutlier  gave  way,  and  mair, 
as  I  tbou^hr,  a  kind  of  a  l>ow.  Uimn  thill 
said,  The  duke  of  Marlborough's  bebavioiiril 
extremely  particular;  he  certainly  has  son^ 
thing  to  say  to  you  ;  1  suppose  he  does  ail 
chuse  to  say  it  while  I  am  with  you,  I  wlHgl 
.into  the  choir,  and  do  you  walk  up  and  do«a 
here,  and  he  will  possibly  sneak  to  you.  Whfll 
I  was  there,  1  looked ;  the  first  thing  I  laV 
was  the  duke  of  Marlborough  and  the  prisoner 
at  the  bar,  with  their  heads  bowing  together,  u 
if  it  was  the  first  salutation. 

Had  the  prisoner  the  least  inclination  togs 
into  the  Abbey  before  you  proposed  it  to  biaif 
— No :  he  did  not  discover  any. 

Did  he  discover  any  inclination  to  be  M 
alone,  when  you  proposed  to  go  into  the  cbsirr 
— No,  he  did  not  in  the  least ;  in  some  fcV 
minutes  after,  the  prisoner  and  I  met  togethf^ 
he  told  me  the  duke  of  Marlborough  waagaai 
out  of  the  Abbey,  he  had  seen  him  go  ooL  I 
said,  What  passed  ?  To  which  he  replied,  Tt* 
duke  said,  did  you  apeak  to  me  ?  or  whtifik* 
first  1  cannot  telL 


}7}       ^^|V^       0^  '^^  B^or jr  Act. 

In  tbb  Innuai^n  diil  liie  pnsoner  Appear 
ily.  Of  M  if  be  had  some  secret  irana- 
-tioo  to  do  Willi  the  fluke  ? — No,  it  wis  open 
id  otear, 

f  IhI  you  see  the  duke  come  in  t — No,  I  did 
I  }  WA  were  cmpfoyed  in  looking  M  the  mo* 
aift:  »oked  Atteverai. 

Wh  I  do  when  you  first  came  in?— 

fe  W4ike<i  abng'y  and  looked  nu  the  tnoou- 


A.  D.  1758. 


r83S 


IKd  voi)  iiee  the  prt90ner*i  eye  fixed  od  any 
fnon  r— No,  1  diJ  not 
If  Mr.  Barnard  very  near-tif^hted  ? — He  is; 
ijufftion  v^helher  he  eao  be  able  lo  tee  «  per> 
m  across  ihtJi  room. 

Where  did  you  go,  \%hen  you  went  out  of 
If  Abbey  ?— IVe  went  immedialely  into  the 
irk ;  and  after  walking  there,  we  piet  with 
Il4ladi»  whom  1  knevr,  and  to  whom  Mr. 
waanot  unknown,  lo  whom  we  related 
if;  he  alwnys  repesited  these  thiiij^'^s, 
and  that  in  Hyde- Park,  as  matter 
oaity. 

1^  have  you  been  acquaiuied  with 
(  have  been  acquainted  with  liim  seven 

^  Wbil  U  his  characler  ? — I  know  nothing  to 
nirary  but  that  be  is  un  industrious,  sober 

[jfou  e? er  hear  that  he  wm  «  profligate, 
life  man  ? — No,  never. 

father  is  in  great  business,  ia  be  not  ? 

fitber*i  buiinesa  is  a  very  considerable 

Witlmm  Ball  sworn, 

1  am  the   master  of  Storey's- gate 

^bouse;    i  remember  Mr.  Merrick  com- 

I  my  house,  to  inquire  for  Mr.  Uaroard  ; 

kl    '  if  IVIr.  Barnard    was    at   my 

leave  any  mc'Sf^sge,  I  will  de- 

I  ,  he  naid,  he  wonted  la  &ee  him 

»enin^  ;  be  left  Itts  mesaagp,  1  delivered 

I  hirri    ?in-l    hc  Came   rather  Wfore  eiijhl 

K^  He  has  used  uiy  hou!»e  sinne 

3   welUbelinved   man  ;  1  never 

fed  any  exlravajrancy  in  him,  always  u 

J  regular  man.     I  h&ve  heard  hiu^  Mpeak 

ifinif    met  tlie  duke  of  Murlboroui^h«  but 

till  after  this ;  he  tiaid  he  hud  been  to  his 

at  hi>i  ;{ racers  house  ;    this  was  as  he 

dltd  at  my  house,  after  he  had  been  there. 

^h'id  he  mcuiioo  what  had  paii«ied? — No,  he 

"looti  ^^h  ^bat  he  had  seen  his  grace. 

CroM*e)taminafion. 
_  be  t}Ot  tell  >ou  any  thing  that  pAOcdf 
I  did  not  Lcll  me  a  lyllBble  of  it. 
Mt  dkl  you   s>ty   to  Iimu? — i  told  him, 
J»W  b#  was  coiiig  lo  huve  a  comnus»ion  ', 
J^HMt  be  wouTd  nut  thank  his  grace,  except 
'  good  one. 

he  appear  as  to  ehrer fulness,  or 

'the  like"     *'    meil  to  be  very 

,  in  Ibe  I  r  ueil ;  the  same 

OCDOOsed,  ,^i„^i  M.uie  cheerful 

We  will  uow  shew  bis  behaviour 

beDded. 


Mr.  Tord,  Whife  be  was  in  cnstody,  Mr. 
Fielding  did  me  the  honour  of  sendmg  for 
me ;  he  told  me  it  was  upon  some  husinesis 
which  concerned  the  duke  of  Mnrllioroiieirs 
life;  he  nslcd  me  to  go  along  with  him 
and  Mr.  Box  to  New  Prison,  which  1  con* 
sented  to;  we  went  together  in  a  cuach ; 
this  was  ahoiit  twelve  ai  ni^ht,  and  Mr.  Bar* 
nard  was  then  in  hed  ;  1  liave  really  forgot 
what  day  it  was:  Mr.  Fielding;  told  him,  hc  had 
omitted  examining  his  pock*  ts  at  the  time  \m 
was  before  him ;  he  I  hen  searched  his  pnckeli, 
in  order  to  see  whether  he  had  any  letfers  or 
any  writings  that  mii^hi  give  Hght  inlti  the  af* 
fairs;  he  very  readily  let  me  look  into  his  pocket' 
book  and  papers.  Mr.  Fietdintr  with  threat 
candour  told  himi  he  was  in  the  hnnils  of  a 
¥ery  honourable  prosecutor,  and  one  that  wtmh) 
be  as  tllad  to  discover  hi^  innocence  as  his  guill. 
Mr.  Fielding  asked  him  for  his  keys,  and  be 
gave  him  the  keys  of  \m  scruloire  aud  compt* 
ing- bouse  with  great  readiness  ;  and  f  remem- 
ber that  I  then  told  him,  that,  if  he  was  guilly, 
some  copies  mipht  be  lound  to  cnfrespond  witb 
the  orii^tnal  leiter^  ;  ond  if  nothing  of  that  tort 
did  a[>]te«r,  it  would  lie  a  circumstaace  iu  hif 
favour. 

Did  you  or  Mr.  Fielding  tell  him  he  was  not 
obliged  to  part  with  his  keys,  nod  did  he  do  it 
as  matter  of  choice?-*!  do  not  recollect  that; 
I  know  he  parted  with  them  very  readily. 

The  Rev.  Dr.  Markftam  sworn. 

Dr,  Markham.  I  have  known  the  prisoner 
some  years  ;  I  huve  always  consUUred  him  as 
a  young  man  of  remarkable  sobriety  and  aireii- 
tion  to  business  :  1  have  had  ^mne  e.vperienee 
of  him  ;  I  eutrufirrd  him  with  the  execution  of 
some  matters  of  imnortance  relating  lo  my*elf, 
in  regard  to  surveving  ami  valuing  estates,  in 
which  heacquiitet)  himielf  ably  «nd  boncRlly  ; 
that  is  ibe  character  he  stways  had ;  he  Hvet 
in  my  neighbiHirhood,  his  ftiiher  is  a  man  of 
considerable  property,  and  carries  on  a  Isrga 
business. 

Then  you  don't  suppose  I  he  prisoner  to  be 
ID  distressed  circumstancea  ? — 1  never  supposed 
it,  I  have  no  reason  to  imagine  it ;  if  he  had 
come  lo  me,  wanting  mone^,  he  miaht  eojfiljf 
have  imposed  on  me,  he  might  have  had  any 
thing  of  me  ;  he  is  one  of  the  chief  |»erMorts  I 
trusted,  and  E  ilon't  know  a  man  on  whom  I 
would  have  had  a  greater  rehancc  ;  1  tboughl 
him  remarkably  able  in  his  business,  atui  verjf 
likely  lo  be  a  ctint^iderahle  man ;  and  I  never 
was  more  astonished  in  my  hfe  than  when  I 
heard  this  strange  story. 

Samuel  Cor,  esq.  sworn* 

S,Cot.  I  have  known  Mr  Barnard  about 
the  space  of  three  years  last  past.  The  b4fgin> 
tiifitf  of  ray  acquainiaoce  was  on  the  account 
nf  Gia  surveying  of  houses  in  the  New-Sqoare* 
IJeanVYord  ;  the  surveys  were  generally 
matle  by  him  ;  he  did  hit  busine^  with  sueu 
accuracy,  that  1  tiave  always  thought  him  # 
mzu  f&y  ittcutive  to  his  buiioeafa  and  very 


839]  SI  GEORGE  IL 

nolikely  of  beiiigr  ehar^  with  this  fact ;  and 
UfMin  his  bein^  employ^  upon  public  achenties,  i 
1  employ e<l  him  in  my  own  aiTairs ;  1  em- 
ployed his  father  to  Giiish  some  houses  for  me 
at  Hammersmith,  the  sod  was  constantly  em- 
ployed till  the  6th  of  April  last ;  I  have  at  dif- 
ferent times  paid  to  Mr.  Barnard  about  700/. 
all  paid  into  ihe  hands  of  the  prisoner,  except 
50  or  70/.  of  if.  He  has  appeared  as  the  per- 
son that  manaijred  bis  fnlher's  buniness :  if  he 
bad  come  to  me,  and  mentioned  any  want  of 
money,  upon  his  father's  being  out  of  town,  or 
the  like,  he  might  hare  had  2  or  SOO/.  at  any 
time.  When  1  first  was  acquainted  with  him, 
1  obsenred  he  had  a  remarkable  short  sight ; 
when  he  has  looked  full  at  me,  I  have  thought 
be  sneered  at  me ;  he  has  F.uch  a  fall  with  liis 
eye-lids  on  the  account  of  his  shortsighted- 
ness ;  1  have  found  his  eyes  so  fixed  upon  me, 
that  I  have  been  going  to  speak  to  bidi,  whieh 
by  my  long  acquaintance  with  him  1  since 
found  was  only  an  accident 

Robert  Vansittarty  esq.  sworn. 

H.  Vansiitart,  I  have  known  ilr.  Barnard 
about  five  or  six  years ;  my  acquaintance  with 
him  was  by  being  acquainted  with  his  father, 
who  was  employed  in  carrying  on  a  large 
builtlinir  for  Mr.  Lee,  an  acquaintance  of  mine 
in  Oxfordshire;  and  these  five  years  I  have 
been  acquainted  with  the  son,  and  frequently 
in  company  with  him.  In  the  beginning  of 
April  he  was  in  my  chamber,  putting  up  some 
book-cases ;  I  remember  one  morning  at  break- 
fast he  told  me  the  circumstance  of  meeting 
the  duke  of  Marlborough  in  Hyde  Park  and  in 
^Vestminster  Abbey,  in  the  same  way  as  the 
Court  has  been  told  from  his  grace  and  the  rest 
of  the  witnesses ;  it  appeareu  to  me  to  be  a 
very  strange  story,  and  be  seemed  to  tell  it  as 
such,  as  I  or  any  body  else  would  have  told  it. 
1  suspended  my  judgment  upon  it,  and  never 
related  it  to  any  body,  only  to  my  father  and 
another  gentleman,  and  they  looked  upon  it  as 
a  great  lie  that  Baruard  had  invented ;  I, 
knowing  his  character,  did  not  take  it  as  such, 
but  thought  be  must  have  known  it  to  be  as  he 
•aid. 

What  is  your  opinion  of  him  as  to  his  busi- 
ness?—From  my  own  personal  acquaintance 
with  him,  and  from  the  many  surveys  1  have 
seen  of  his.  he  certainly  is  very  capable  and 
master  of  his  business.  I  never  heard  any 
thing  ill  as  to  his  private  character. 

Did  you  ever  see  him  write  ? — No ;  he  draws 
Ter)'  well ;  J  have  seen  him  draw. 

John  Smithf  esq.  sworn. 

J.  Smith,  I  have  known  him  eight  or  ten 
years,  and  his  father's  family  twenty -fire.  He 
Always  appeared  an  iodiistnous,  sober,  diligent 
man,*  particularly  within  these  four  or  five 
years,  since  he  has  come  into  business  with  his 
father.  1  con^Uered  him  at  a  very  uiouiising 
ffenius  in  his  way,  and  one  capable  or  conduct- 
bg  his  busiaiiss  with  reputation  and  diaracler. 

JM  jmilook  i^pta  Ua  Nkd J  M  bt  dfif  ta  to 


Trial  of  WiUiam  Barnard^  [840 

distress,  or  in  want  of  a  place  P— -No,  1  did  not 
I  can  with  great  truth  say,  moal  of  the  pay- 
ments in  my  compting-bouse,  on  bis  father's 
account,  have  most  of  them  been  paid  by  the 
hands  of  this  young  roan  ;  except  the  hM 
500/. :  then  Mr.  Barnard  and  his  wife  ana 
over  and  dined  with  me,  and  paid  it ;  and  tbca 
1  blamed  him  for  not  bringing  his  son. 
What  are  you  ? — 1  am  a  timber-iiiatbiiit. 

Joihua  Smithy  esq.  sworn. 

Josh.  Smith.    I  am  in  partnership  with  Mj 
father,  the  last  evidence.    I  have  known  Iks 


lately,  except  that  500/.,  has  been  by 
they  never  paid  less  tbao  100/.  at  a  time,  ei- 
ce|>tonce. 

Have  you  any  reason  to  imagine  bim  ii 
desperate  circumstances  ?— There  is  no  ifMi 
as  I  know  of  to  imagine  so. 

Robert  Tunttaliy  etq.fwom. 

R,  Tumtall  I  have  known  him  two  ym 
"What  is  his  general  character  ?---He  ii  ii- 
dostrious,  and  very  capable  of  bis  boaB» 
His  behaviour  has  been  prudent ;  he  ii  the 
principal  man  in  his  father's  busineM  in  dn*- 
iiig  and  scheming.* 

Mr.  Peter  Bruthell  sworn. 

P.  Brushell.  1  have  known  him  from  acM 

What  is  bis  character?— I  always  tosk hi* 
to  be  a  very  sober,  honest  man.  His  ftlhv 
has  done  a  great  deal  of  business  for  me,  sai  ii 
now  at  work  for  me. 

Who  did  you  generally  pay  the  moocf  tof 
—I  generally  paid  the  father;  ifthepnlDtfr 
had  applied  to  me,  1  would  have  let  bun  bift 
100/.  at  any  time. 

Is  he  capable  of  business  ?— He  is  very 
capable :  he  drew  a  plau  for  me  last  Satvdiy 
was  se'nnight. 

Do  you  Took  upon  him  to  be  in  despcnteor 
distressed  circumstances? — No,  I  do  not 

Haa  he  been  always  a  visible  man?*-Al' 
ways. 

Mr.  Jelfe  sworn. 

Jel/e.  I  am  the  king's  mason.  T  bivt 
known  the  prisoner  seven  years  or  more. 

Do  you  look  upon  hini  to  be  capable  of  ■! 
business  ? — I  believe  he  is  a  very  capable  W0 
in  his  business. 

What  is  his  general  character?— ^ilwayi* 
very  worlhy,  honest  man. 

Did  vou  ever  see  him  guilty  of  any  extn*>^ 
gancyr— No  never. 

Do  you  live  near  him? — I  am  a  veryiH' 
ueighlwur  to  him,  and  keep  him  company  M 
evenings,  withiu  this  year  or  two  OMce  fU* 
cuiar. 

*  Mr.  John  Barnard,  the  father  of  At 
,  buUt  Kew  bridgv  for  this  Mr.  Ti 


Ml]  on  the  Black  Ad. 

William  RobiHSom^  esq.  sworn. 

Robiiuon,    I  hare  known  bim  about  six  or 
leveo  ^earf . 

la  lie  a  person  capable  of  his  profession  ? — 
\  belief  e  he  is. 

^Vhat  has  been  bis  behaviour? — I  always 
looked  upon  him  to  be  a  very  sober,  diligent, ' 
Tnf^\  man. 

Did  yon  look  upon  him  to  be  in  desperate 
nrcumstaoces  ?— No,  nut  at  all. 

Thomai  Kynaston,  esq.  sworn. 

KynoMian.     I  have  known  him  six  or  seven 
jears. 

What  are  you  ? — I  belong  to  the  board  of 


A.D.  1758. 


[848 


Wbalia  your  opinion  of  the  prisoner's  situ- 
#lioo  P— 1  think  he  is  in  a  good  one. 

Wliat  has  lieen  his  behaviour?— That  has 
Wsp  at  ways  good. 

Mr.  Keynton  Cawse  sworn. 

Comte.  I  have  known  him  seven  years, 
aa4  been  in  his  company  many  times. 

What  is  his  character? — He  is  a  very 
vtrthy  young  man,  sober  and  industrious, 
always  attendmg  his  father's  business. 

Mr.  Uffort  sworn. 

Ujfbrt,  I  have  known  him  about  six  or  seven 
mrs ;  he  is  a  sober,  sedate  younjr  man  as  ever 
I  net  with.  I  have  done  business  for  him 
Mwal  times. 

Mr.  Brent  sworn. 

Breut,  I  have  known  him  upwards  of  three 
yurs. 

What  is  his  character? — fie  has  a  good 
dbiraeter ;  he  is  a  very  industrious  man.  I 
kve  frequently  paid  him  money. 

Mr.  Janes  sworn. 

Jotui.      I  have  known  him  several  years. 

»What  is  his  general  character  ? — He  is  very 

knsst ;  uo  ways  extravagant,  that  could  lead 

bin  into  a  desperate  state ;  he  is  as  moral  a 

■so  as  any  I  know,  and  has  as  good  a  cha- 


Mr.  Wilton  sworn. 
Wilton,    I  have  known  him  about  seven 

What  has  been  his  behaviour  during  that 
tine? — It  has  been  always  very  well.  1 
■Iwiyi  looked  nptm  bim  as  an  honcjit  man. 

Dtd  you  ever  look  upon  him  to  be  in  a  dcs- 
ftnte  way  io  his  fortune  ?— No,  never. 

Q.  to  Mr.  Barnard  the  elder.  Where  was 
JH  when  your  sou  was  sent  for  to  the  duke  of 
Mariborougli's  ? — Mr.  Barnard,  1  was  then 
Ml  of  town.  I  have  not  been  in  town  above 
iM  week  these  6ve  or  six  weeks. 

Mr.  Serieaot  Davy : 

My  lord,  and  gentlemen  of  the  jury  ;  I  am 
Mrrj  Io  tekr  up  any  more  of  your  time  ;  but 
IhtMnooeoMtstiug  of  farious  parts,  I  tfouM 


beg  leave  to  trespass  a  little  longer  on  Jrour  pa« 
tience,  and  maLe  a  very  few  observations  oq 
the  case,  as  it  now  stands  before  you.  I  do  not 
claim  any  merit  at  all  for  their  not  opposing 
any  evidence,  as  was  atteiopteil  on  the  other 
side ;  I  am  sure  I  shall  be  justi6ed  in  your 
opinion.  Nothing  has  passed  in  the  course  of 
this  prosecution,  but  what  clearly  manifests 
that  the  duke  is  totally  indifferent  about  the 
issue  of  it :  in  this  matter  he  is  only  a  friend  to 
justice,  and  would  wish  for  the  prisoner  not  to 
be  disturbed  in  any  method  he  should  take  in 
the  course  of  his  examination  :  be  that  as  it 
mav,  I  have  done  what  I  have  thought  ri^ht^ 
and  am  very  glad  they  have  done  every  thing 
they  could  for  the  prisoner. 

I  shall  now  consider  two  general  questions  : 
the  6rst  is.  Whether  the  several  circumstances 
that  have  been  given  in  evidence,  on  the  part  of 
the  prosecution,  independently,  are  in  them- 
selves  sufficient  to  convince  a  reasonable  under- 
standing of  the  prisoner's  guilt;  I  mean  your 
unilerstandings  as  jurymen.  The  second 
question  is.  Whether  the  defence  that  has  been 
set  up,  those  circumstances  are  sufficient  to 
fienel  the  weight  of  the  evidence;  1  meaoy 
whether  the  defence  is  reconciUble  to  the  sus- 
picions of  the  prisoner's  guilt;  for  if  they  are 
irreconcilable  with  the  prisoner's  guilt,  (as  I 
do  not  intend  to  impeach  the  credit  of  any  one 
witness)  I  am  content  upon  that  supposition, 
he  may  be  ac«iuitted :  I  don't  mean  that  any 
witness  has  laid  a  single  circumstance  before 
von  that  is  not  strictly  true,-  but  that  they  may 
Ee  reconcilable  with  the  suspicion  of  his  ffuilt. 

I  do  not  mean  to  draw  your  attention  Mck 
to  the  several  circumstances  of  the  prosecution  ; 
they  are  all  before  you,  and  they  are  too  strong 
and  striking  to  be  easily  forgot ;  they  would 
be  diminished  considerably  by  attempting  to 
recapitulate  them,  and  therefore  1  shall  not 
attempt  it :  and,  as  I  said  at  the  opening,  they 
are  irreconcilable  with  any  supposition  of  the 
prisoner's  innocence,  independently  of  the  de> 
fence  set  up  for  bim,  if  they  are  so  strong  in 
themselves,  as  it  would  be  offering  violence  to 
one's  understanding,  not  to  consider  them  as 
circumstances  necessarily  inducing  his  guilt. 

It  will  remain  for  your  consideration,  it  is 
now  the  capital  quesiion,  Whether  these  cir* 
Gumstances  lakl  before  you,  consisting  of  five 
or  six  paru  on  the  part  of  the  prisoner,  may  be 
reconciled  with  the  suspicion  of  his  guilt  ?  Be- 
cause, if  they  may,  it  is  uo  defence  at  all. 

Gentlemen,  the  first  is,  the  prisoner  being 
sent  by  his  father  to  Kensington  on  this  Sun- 
day on  which  he  met  the  duke  in  Hyde-Park. 
I  did  not  chuse  by  any  means  to  ask  the  father 
any  question;   1  should  have  disobliged  my 
noble  client  if  I  had  done  it.    As,  why  he  WM 
sent  to  Kensington?  What  conversation  mu|h% 
have  led  to  that  matter?  What  happened  mi 
breakfast  with  his  father  was  the  sole  oocaaioii 
of  his  going  there.    The  son,  you  see,  is  nrin- 
cipally  concerned  in  coaducting  his  father** 
business ;  he  might,  or  he  might  not  ^nopooe 
the  expcdtency  of  tuch  •  jovroey .     li  la  a  lit- 


&13J 


31  GEORGE  IL 


Trial  of  Wiliiam  Barnard. 


[S14 


tie  extraordioary,  this  business  (uot  being  ur- 
gent in  its  own  nature)  should  be  appoint^  by 
Uie  father  to  be  transacted  on  the  Sunday,  when 
the  father  miffht  as  well  haFe  employed  his 
time  in  going  elsewhere :  goinir  to  ask  whether 
a  sum  of  money  bad  been  paid  on  the  account 
of  grave],  to  make  it  necessary  to  be  sent  just 
at  church-time.  His  father  talked  of  liis  go- 
ing; he  did  go— what  does  that  prove?  D^es 
it  prove  he  was  not  to  go  to  Hyde- Park  any 
other  way  ?  Whoever  was  the  writer  of  these 
letters,  certainly  intended  to  have  a  meeting  on 
both  the  Sundays,  in  the  Park  and  in  the  Abbey, 
in  a  very  public  manner ;  and  that  agreeable 
to  the  tenour  of  the  letter,  he  did  provide  him- 
self with  a  defence  in  case  of  need.  Now,  be 
the  author  of  these  letters  who  it  may,  the  au- 
thor did  contrive  a  subterfuge  for  himself  after- 
wards, in  order  to  reply  to  a  charge  of  that 
nature. 

Gentlemen,  the  next  part  of  the  defence  is, 
that  he  at  several  times  and  to  several  people 
related  the  meetings  be  luid  had  with  the  duke, 
and  the  extraordinary  occurrences.  This  in- 
deed corresponds  with  the  observations  I  made: 
the  writer  of  these  letters  proposed  to  meet  the 
duke  at  a'time  that  people  were  walking  out  on 
m  Sunday,  and  in  the  Abbey,  the  most  public 
places,  and  at  the  most  public  times :  is  that  irre- 
concilable with  thesuspicion  that  the  prisoner  (if 
he  was  the  author  of  these  letters)  might  have 
been  contriving  with  other  persons,  telling  peo- 
ple of  the  several  meetings  he  had  had  with  the 
duke,  and  the  substance  of  those  meetings  ? 
But  one  observation  will  arise,  perhaps  not 
much  to  his  service ;  and  that  is,  when  be  told 
those  people  of  his  seeing  the  duke,  he  spoke 
to  bis  seeing  an  attendant,  which  corresponds 
with  the  second  letter :  what  does  he  say  about 
it  to  the  persons  to  whom  he  relates  the  meet- 
ing ?  He  saw  he  was  armed — he  saw  one  like- 
wise at  a  distance,  and  he  thought  there  was  a 
duel  going  forwards.  Now,  when  he  spoke  to 
the  duke  of  the  surprize  he  had  entertaiued  on 
seeing  the  duke  armed,  does  he  assign  that  as 
a  reason  of  apprehending  a  duel?  No;  it  was 
because  it  was  cold  weather,  and  he  wondered 
to  see  him  without  a  great-coat :  so  that  the 
same  man  that  speaks  of  it  to  his  friends  as  a 
circumstance  that  might  induce  a  surprize, 
speaks  of  it  at  another  time  as  being  surprized, 
without  giving  that  as  a  reason  for  it. 

The  next  circumstance  is,  5Ir.  Greenwood's 
evidence  of  going  with  him  to  Westmiuster- 
Abbey.    There  are  two  or  three  things  a  little 

E articular :  aAer  breakfast,  about  nine  o'clock, 
e  solicits  the  prisoner  to  dress  himself  in  order 
to  go  to  the  Park.  The  prisoner  seemed  un- 
willing to  go  there.  He  said,  it  was  uot  an 
unusual  thing,  when  they  were  to  go  together, 
for  them  to  difier,  and  upon  that  occasion  to 
part.  Supposing  the  prisoner  wanted  to  get 
rid  of  this  companion  of  his,  who  had  laid 
ibere,  and  was  uot  easily  to  be  got  rid  of,  why 
miffht  not  that  account  for  his  &ing  unwilling 
to  dress  himself  at  nine  in  the  morning,  in  or- 
.der  to  get  rid  of  bim  ?  For  be  hid  time  enough 


to  dress  himself  an  hour  after  that,  and  to  meet 
the  duke  in  the  Abbey  at  eleven.  It  is  a  little 
odd,  that  the  prisoner  wanted  to  go  another 
Yvay,  and  expressed  a  reluctancy  in  (ping 
through  the  Abbey.  It  is  clear,  he  did  aot 
mean  to  be  seen  by  Mr.  Greenwood  in  the  Ab- 
bey :  but  when  he  could  not  get  rid  of  tlut, 
and  he  plucked  him  by  the  coat  for  that  |nirw 
pose,  did  they  prosecute  their  design  in  fuof 
to  the  Park,  and  yet  saunter  a  good  while  is 
the  Abbey  ?  (No  reason  why  they  did  so.)  Fuit 
they  went  to  general  Hargrave's  mooumest, 
then  to  captain  Cornwall's  monument ;  there 
they  stayed  some  time,  the  dnke*s  behaviov 
being  in  Mr.  Greenwood's  evidence  particiilir; 
from  the  duke's  bowing,  be  thought  that  the 
duke  wanted  to  sneak  to  him  in  private.  Hiir 
is  this  reconcilable?  There  is  not  a  ditoa- 
stance  in  all  that  part  of  the  story  of  Mr.  Graoh 
wood's  evidence,  which  suits  so  well  aa  thii 
of  his  guilt :  first  be  wanted  to  set  rid  of  Mr. 
Greenwood,  and  when  he  cenid  not  do  thl^ 
then  making  no  secret  of  having  seen  the  dake, 
and  make  that  tally  with 
his  telling  bim  be  had  met  him. 

The  next  circumstance  is  Mr.  Ball's;  aodif 
that  circumstance  of  his  evidence  strikes  jm 
as  it  did  me,  I  wonder  he  was  produced  u  a 
witness ;  for,  you  see,  he  was  very  forwirl: 
he  was  blamed  for  it  by  one  of  his  witoeMis 
be  thought  he  talked  too  much  of  having  net 
the  duke,  that  was  so  singular,  that  it  demasdel 
animadversions :  yet  notwithstanding,  wbco  be 
had  had  a  third  interview  with  the  duke,  ui 
there  appeared  so  very  material  a  circnmstSDes 
oftheduke*s  having  charged  him  with  a  verva- 
traordinary  and  wicked  proceeding  against  na; 
when  he  had  told  bim  of  all  these  letters,  sod 
one  of  them  set  forth  his  name,  as  a  penoa 
that  could  inform  his  grace  of  something  which 
nearly  related  to  his  safety,  and  hinted  to  hiffl 
the  strangeness  of  these  letters,  and  chtrged 
thein  upon  him  ;  and  after  having  pretended  s 
total  ignorance  of  this  matter,  he  afterwsrdf 
conceals  all  this  from  Mr.  Ball :  and  whit  ii 
another  circumstance,  Mr.  Ball  says,  hewH 
rather  more  cheerful  in  relating  what  he  did 
than  usual.  God  knows,  he  had  noreaiwnts 
be  cheerful !  for  the  duke  had  charged  bin 
home  with  a  capital  offence  ;  the  duke  had  ad- 
monished him,  and  told  him,  either  he  wuthe 
author  of  the  letters,  or  he  was  used  exceed- 
ingly ill  by  the  |>ersou  that  did  write  tbeiB. 
Yet,  you  see,  in  mentioning  these  thinga<to  hii 
friend  Mr.  Ball,  Ball  considers  it  as  a  fruil  ef 
the  duke's  benevolence  to  him,  and  says,  bs 
will  give  you  a  post  in  the  army.  The  pri- 
soner replied.  It  must  be  a  very  good  one,  if  I 
accept  it. 

These  are  all  the  circumstances  that  diqf 
have  insisted  upon  as  proofs  of  his  innoceae^ 
except  one,  that  is  his  character.  They  bsft 
called  to  that  many  witnesses ;  they  say  he  ii 
very  expert  iu  his  business,  a  very  diligei^ 
sober  man;  nothing  about  him  as  roarki  if 
distress ;  no  vices  to  which  they  find  bim  ii" 
clined,  which  give  him  an  occuionfora^ 


945] 


Trial  qf  John  Ste^nsmtm 


A.  D.  1759. 


[846 


inand  of  this  kind  ;  ami  that,  upon  the  whale, 
he  has  passed  as  a  ?ery  honest  Tnan. 

Oemiemeii,  when  you  conac  tt»  coDstder  that, 
character  goeg  but  a  Very  tittle,  and  indeed  no 
way  bI  all,  towards  proving  hb  kunimence. 

In  the  fitst  place,  charsiier  can  only  b4  of 
■ervice  to  a  tnao,  wht^re  his  case  hang^*i  as  it 
were  in  et|Ufi1  scales^  anil  it  Is  donbtfdl  ivhelhet' 
innoceBt  m  g'uilty  ;  there  it  is  that  a  (Tuiirl  cha- 
mcter  standi  in  mme  fitead,  and  will  baluncc 
the  scale  in  hia  favour.  But  this  is  that  sort  of 
m  case^  thnt  Ihia  particular  character  I  hey  hare 
l^veu  ot  hitn  will  have  ao  weight  to  ri>pei  those 
■ev^eral  iuspicinus  circunifitaTices  that  tally  so 
exactly  3t  to  his  gmlL  Migfht  ii  not  httppen, 
ibal  ft  man  betwixt  twenty  and  thirty  years  oj 
age,  dependant  in  soQie  meaaure  on  his  lather, 
might  have  a  st^cret  call  for  money,  which  he 
would  v^ish  his  father,  and  ttini&e  frienda  that 
are  fond  of  lending'  him  money,  not  to  be  ac- 
quainted with  ?  We  know  very  well,  there  are 
certain  circumstances,  some  in  this  capital  city 
of  London,  where  a  man  might  be  very  bar'd 
driven  for  the  want  of  mone)',  which  he  would 
^nve  to  hide  from  \m  friends. 

1  know  nolbing  of  the  prison cr't  parlicnlar 
character ;  but  it  is  enough  for  this  purpose, 
that  ft  possibly  may  be  his  case  t  if  so.  What 
Ibeo  Laa  the  present  character  to  do  with  it  f  If 


theciraumstancesi  of  the  outliuea  are  such,  can 
any  doubt  ahont  believing  he  is  f^utlty  or  nut  ? 
Then  all  those  other  circumstances^  will  have 
no  weight  at  all  to  counterpoise  the  weight  ot 
the  former. 

As  I  said  at  |!rst,  if  upon  any  circumstancid^ 
offered  on  the  part  of  the  prisoner,  if  the  weight 
of  evidence  ou  the  part  of  the  prosecution  is 
sufficient  to  charge  him,  there  is  nothing  ia 
the  defence  that  wdl  lessen  it  at  all 

Gentlemen,  he  is  safe  in  your  hands*  I 
doubt  not  but  Ibat  you  will  do  your  duty  :  if 
you  think  him  guilty,  you  will  tind  him  bo  ;  if 
not,  you  \vill  acfjnit  him.  With  regard  to  tl>t 
duke,  hia  grace  ha^  discharged  his  duly  which 
he  owed  to  the  public,  which  be  will  at  all  times 
do,  and  ia  perfectly  iodiflerent  about  ^^^  >s*<3* 
of  it. 

The  Jury  acquitted  the  prisoner. 

He  wai  a  aecond  time  indicted  hy  the  natne 
of  William  Barnard,  for  feloniously  sending 
another  letter  io  the  most  noble  Cliarlea  duke 
of  Marlborough,  signed  F,  demanding  two  or 
three  hundred  pounds;  but  no  evidence  ap- 
pearing against  him,  he  was  acquitted. 

For  other  proceedings  respecting  this  matter 
se#  the  King  v.  Fielding,  esq.  2  Burr,  7 19. 


537. 


I 


TheTrial  of  John  Stevenson,  lateof  Bickerton,  in  the  County 
of  Chester,  Cheesefactor,  at  Chester  Assizes,  upon  Friday  the 
STth  Day  of  April,  before  Mr.  Justice  Swinnerton,  and  Mr. 
Justice  White,  for  the  Murder  of  Mr,  Francis  Elcock,  late  of 
Nantwichj  in  the  said  County,  Attorney  at  Law  :  32  George 
IL  A.  D.   1759, 


BOUT  nine  o'clock  in  the  morning,  the 
<^Ourt  being  sat,  the  prisoner  was  brought  to 
Uiebar. 

Countelfor  the  Crtm^n.  Mr.  Hall,  Attor- 
ney-General for  Ch^hire,  Mr.  Falconer,  Mr. 
llayward. 

Countcl  for  the  Pritontr,  Mr.  Townsend, 
Becorder  of  Cheater,  Mr.  Perry  n,  Mr.  Maddox. 

Pr^lhonotaty.  Prisoner,  hold  up  your  hand. 
You  stand  indicted  by  I  he  name  of  John  Ste* 
venaun,  late  of  Bickerton,  in  the  county  of 
Cheater,  yeoman,  for  that  you,  not  having  the 
fear  of  God  before  youreyea,  but  being  moved 
•ml  aeduced  by  the  instigation  of  the  devil,  on 
the  21st  day  of  March,  in  the  32nd  year 
•f  the  reign  of  our  sovereign  lord  George 
the  second »  now  king  of  Great  Britain,  ^c. 
with  force  and  arnis,  at  Bickerton  aforesaid, 
ID  the  county  aforesaid,  in  and  upon  one 
FriDcis  EIcock,  in  the  {leace  of  God,  and 
«tir  aatd  lord  tkc  king  ibea  and  there  being, 


then  and  there  ft:loniou.«ly,  wilfully,  and  nf 
your  malice  aforethought,  did  niake  an  assault ; 
aud  that  you  the  snid  John  Stevenson  a  certain 
gun  of  the  value  of  ten  shillings,  then  and 
there  charged  with  gunpowder  aud  one  leaden 
bullet;  ivhich  gun  you  the  s^aid  John  Steven- 
son in  both  your  hands  then  anil  there  had  and 
held,  to,  against,  and  upon  the  aaid  Fraucis 
Elcock,  then  and  there  f'eloniouiily,  wilfully, 
and  of  your  mahce  afonnhought,  did  shoot  and 
discbarge ;  and  that  you  the  i^aid  John  Steven- 
son, with  the  leaden  bullet  aforesaid,  nut  of  the 
gun  aforesaid,  then  and  there,  by  torce  of  the 
gun- powder  ahot,  dischargeit,  and  sent  forth 
as  aforesaid,  the  aforesaid  Francis  £k>ock,  in 
and  upon  the  left  side  of  the  belly  of  him  the 
said  Francb  Elcock,  then  and  there,  with  the 
leaden  bullet  afore!»aid,  out  of  the  gun  afore- 
said, by  you  the  said  John  Slevensttn,  so  it 
aforesaid  shot,  discharged,  and  sent  forth,  fe- 
loniously, wilfully,  and  of  your  mahce  afore* 
thought,  did  strike,  penetrate,  and  wound ; 
giving  10  tilt  said  FraocU  EIka^^^  >^iw^^  ^»^ 


S2  GEORGE  IL 

there,  with  the  leoH^n  bullet  ftforcBaid,  so  as 
afpr*?said  ihot,  dUchurgeii,  and  sent  forth  out 
of  ihe  gun  afuresaidf  by  \oit  the  said  John 
Stefenson,  in  and  upun  ihe  leftside  of  the  belly 
of  him  the  said  Francis  Elcock»  one  oiorttl 
woundf  of  the  depth  of  tive  itiches.  and  of  the 
breadth  of  one  inch  ;  of  which  said  mortal 
fvound  the  said  Francis  £  I  cock,  on  the  aforeeaid 
%U%  day  of  l^Ufch,  in  the  year  aforeswiid,  for 
the  «|iftce  of  ten  hours,  ^^  Bickertoo  aforeeaid, 
iti  the  county  aforesaid,  did  tancfuiiih,  and 
languisbmg  did  live;  on  ^ihich  said  Slst  day 
of  March,  in  the  year  aforesaid,  Ihe  said 
Franc»6  Elcock,  at  Biekertoo  aforesaid,  in  ihe 
county  aforesaid,  of  the  mortal  vvouad  afore- 
said died:  and  so  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  say,  that  you  the  satd 
John  Stevenson,  the  said  Francis  Elcock,  in 
manner  and  form  aforesaid,  feloniously,  wil- 
iulljs  and  of  your  malice  aforethought,  did 
kill  und  HQurder^  against  the  peact*  of  our  said 
lord  the  kin^,  his  crown  and  dignity. 

Frothonotarj/.  How  say  you,  John  Stefen- 
aon,  are  you  Uuitty  of  the  munler  and  felony 
whereof  you  stand  indicted,  or  Not  Guilty  ? — 
PrtMoner,  Not  Guilty. 

Frothonotarj.  Cotftdt^  how  will  you  be  tried  P 
— Pfiioner,  By  God  and  my  country. 

Frothonotary,  God  send  yi»u  a  good  deliver- 
ance. 

Priioner.  A  mem  God  send  tne  a  good  de- 
li?erttDce. 

Then  the  Jurors  were  called  and  sworn. 

Jlry, 

\1fllltaai  Drown,  of  Stockport -Etchels,  fbre- 
jsnao. 

John  Bennet  of  Msrfde. 

John  Hod  son,  of  Hahy, 

Henry  Price,  of  ditto, 

John  Lte  of  Tranmore. 

Samuel  Jones,  of  Oier-BebbingLou. 

Joseph  VVriy^ht,  of  ditto. 

Bichard  Jackson,  of  ditto* 

Thomas  Robinsun,  of  Newhall. 

George  Wood  house,  of  Buerton. 

John  Clitfe,  of  Audtera. 

S«iuuel  Lea,  of  Baddiley. 

N*  B.  The  Prisoner  challenged  Abraham 
Darlington,  of  Brindley,  as  he  came  tn  be 
•worn;  but  no  cause  uas  assigned  for  such 
challenge* 

Mr.  Attorney -General  challenged  Edward 
Hamueti,  of  Netvhall.  ns  he  came  to  best^orn  ; 
as  Ulr.  Hamnett  owned  he  was  related  to  the 
Prisoner. 

Prolhonotary  then  read  ihe  iudictmeat* 

Mr.  Attorney  General,  counsel  for  the  crown, 
opened  the  ca»e  to  the  follo^tiog  effect : 

Gentlemen  of  the  Jury  ;  The  prisoner,  JoJ^n 
Stevenson,  stands  indict'ed  before  you,  for  the 
murder  of  Mr.  Francis  Elcock,  lale  of  Nnnt- 
wich  to  this  county,  an  attorney  at  law ;  which 
p-ime  be  (the  prisoner)  perpetratt^d  and  cono- 
mitted  upoa  tJie  Slat  day  gf  March  laal  i    aud 


Trial  of  John  SirvensoK, 


il  is  now  my  duty,  u  oooumI  on  bi>half  nf  \ 
crown,  tn  use  my  eodeavtiurs  f        '      '  *  Jiiini 
thai  justice  and  restitiitioQ,  ^  ;  aw  i 

qtiires  for  crimes  of  thU  bciri.ii  t*»j.. 
wliich  end,  it  msy  be  tiecetsary,  th^t  1  piMat 
out  some  facts  and  t'itcuin»Uttct«s  antrcedeBl 
to  the  commission  of  the  nturdfr,  wbicii  1 
doubt  nm  we  shall  be  able  to  prove,  and  ho^ 
you  will  be  aaiisAed  in  your  cou%eieiicrt,  ihi} 
the  prisoner  did  kill  and  munler  Mr.  Ebodt, 
as  laid  in  the  ittdiciiiieut ;  aad  if  so,  that  yn 
w\\l  find  hun  guitiy. 

Gentlerueo,  at   the  time   this   murder 
committed,  Mr.  Elcock  was  doiiii;  a  )e|f«l  •fMi 
cr>Qi  mend  able   act :    he  was  eodcavounoAf 
subline  the  prisoner,  and  to  Urto^  hiin  to  i  jh 
sense  uf,  and  an  obedience  to  the  laws,  wb 
he  had  but  a  httle  while  before  violti«!d,  by  i 
outrageous  contempt  oi\  and  rehelliofi  to  ikt 
laws^  which  have  been  wisely  (and  bappdy  ^1 
u^)  made,  tor  the  preservaliofi  ol  the  lttet^Ail| 
security  of  the  pro|ierties  oi'  the  subject.    TWj 
prisoner,  (renilemen*  has  been  for  loaoT  ynn  I 
a  cheese-factor  in  tliis  county  ;  but  fadiQfit| 
his  credit  some  years  ago,  Ita^*  ^mce  then  tual 
sanctuary  in  his  house  at  Bickerion,  aod  i ' 
kept  himself  confined,  to  prt:vent  the  eflc(tiif| 
a  civil  proceas,  and  to  evade  the  p^yuiflot<f| 
his  just  debts*     Common  attompt^i  lor  joftM  | 
to  the  creditors  were  vain:  the  sheriff's  Ǥ' 
cen»  too  well  known,  anil  indeeiJ  persons  m(^  I 
neral  ((rxccjit  a  few  conhdeut^)  ton  hnrtlly  •»■ 
pected,  tu  gain  admiltani'e  :  art  and  potir)  lie*  I 
came  necessary.    The  unlortunate  young  gBJ- 
ilenian,  whose  death  you  are  now  to  oifff*! 
into,  wiis  eaiployed  as  an  attorney,  for  owtTj 
the  prisoner's  creditors,  to  sue  out  a  writ  agiititf  ] 
him,  which  he  accordingly  did,  and 
the  sheriff's  warrant  thereon,  und  deb*er^<^ 
to  one  of  the  olficers  named  Uiereiii,  wiib  *• 
rectious  to  arrest  the  prisoner.     But  iheofo  I 
apprehending  he  should  he  denied  admttliMe  I 
io  the  prisoner,  had  recourse  to  A  stratagecn.i^  | 
unlikely  to  prevail.     He  wruie  a  letirr  lo  1^ 
pns^iner,  signifying,  that  the  gentleman  wU 
sent  it  wanted  to  buy  some  young  tree*  irvs  I 
the  prisoner,  and  desiriui; that  the  hearer  i'  ' 
leiit^r  might  be  permitteil  to  view  the  I 
to  that  purpose.      The  officer  went  i*> 
s^^iuer's  hmisG  \^ith  this  teller;  arid  ki 
the  door,  a  person  came  to  the  %viiulotv  ^  : 
it  was  delivered  ;  and  as  soon  as  the  nh 
bad  read  the  letter,  the  officer  was  aiimr" 
him.     Af\er  some  discourse    relation 
trt-es,  the  baililf  ac«iiiainte<l  the  prisooer! 
eon  with  the  real  errnnd  he  cjime  upoo. 
ly,  to  arrest  him  ^  and  accordingly  ihirlMdifl 
til  d  til  en  and  there  actually  arrest  tht 
by  laying  his  hand  upon  hito,  and  t^ 
that  he  had  the  therilf  *h  warrftot  «|faiu»i  tum, 
which  he  produced.     What  waa  the  priKMir 
now  to  do  in  litis  situation?  Must  be  ttmfijF  | 
submit  to  the  legal  authority  of  the  btttirA  i 
quit  his  a»\lum,  till  he  lud  given  Kii-nniy^ 
rendered  to   the  plainiifl*  aatiiil 
debt  f  No. — After  a  short  pause, 
turn  Of  two  in  bis  house>  be  wMidesiJy  prv] 


849J 


fir  Murder, 


A.  O.  1759. 


[850 


I 


senleJ  ft  pistol  at  ibe  br^tst  of  tbe  officer^  nnd 
«wore,  if  lie  itid  not  itjiniLHliutely  leave  the 
hmiS€,  be  wouUl  Uow  bis  bnlm  out ;  atid  wiili- 
out  wairinif  fur  an  answer,  actually  snajiped 
tb«  pi^lol  at  bim,  ^bicb  missed  fire.  But  lie 
ootild  not  rest  bare ;  bis  temjicr  was  too  bot 
to  |)ur  up  ^ith  tbe  aflroui  of  bem^  lawfully  ar- 
rested for  a  just  debt :  he  Bnapjied  the  pistol 
Ibree  times  at  the  officer^a  breaat,  wliicb  provi- 
dentiali^  did  UDt  go  off, — It  wna  bi|^li  time  for 
the  baJhiTuovv  to  retire  ;  Ibc  preservation  of  his 
life  required  it :  be  bid  no  chance,  unarmed 
•od  aloae,  to  maiulaiti  iiis  arrest  ogainat  a 
loaded  piiitol^  aud  there  waa  uo  time  tor  Mvordn 
to  soothe  a  in  an  of  so  4ka|>«rale  and  outrageous 
a  disposition  into  a  peaceable  compliance  j  oud 
therefore  the  officer  ibou^rht  fit  (auti  I  think 
Tery  prudently  ton)  to  leave  bis  prisoner.  But 
fiOer  his  miraculous  escape,  be  weat  to  Air. 
£lcock,  who  vraa  in  tbe  aeigbbourbood,  and 
♦old  him  that  he  had  arrested  the  prisoner,  who 
rescued  bimself  by  snappincf  a  pistol  at  bnn 
throe  diff'ertnt  times,  and  desirud  Hr,  Elcock 
to  get  bim  assistance^  for  ihe  retakiog;  the 
|iriaof»cr;  whereupon  Mr,  KIcook,  and  the 
plainrirT  in  the  action,  with  one  or  two  other 
|i«rions,  returned  with  tbe  officer  to  tlie  pri- 
•oner'i^  house,  which  tboy  fonn*i  locked  j  and 
Mr.  Eicocik  going  lo  oneof  Ibedoor*  demanded 
entrance,  and  desired  the  prisoner  to  yield  to 
ibe  nrre«t.  But  the  prisoner's  resentment 
could  nut  relish  a  capitolaliori  of  this  sort;  be 
**a«  deteiniitked  ^titt  lo  oppose  ibi?  oulbority 
af  tbe  law,  and  to  refuse  any  obwliencc  to  it, 
Hesotved  upon  the  death  of  sotnebody  or  othefi 
Ao  duller  whom,  be  tonk  up  a  gun  loaded  wiib 
l^uupowUer  and  hiill^  and  di<»cbarg:ed  it  tbron^j^h 
the  duor  atfaiust  which  Mr.  Elcock  stood »  and 
unfuitunal^ly  killed  him.  It  seems  unoeces* 
•ary  h»r  mc,  gentlemen »  to  make  any  observa- 
tions with  rtspect  to  the  inlf^niion  of  the  pri- 
soner to  commit  murder;  bis  keeping  of  fire- 
arms loaded  in  his  house;  bis  snapping  a 
loaded  pistol  thfee  difTLient  times  at  tbe  baibff, 
in  tbe  execution  of  bis  duty,  after  he  had  iir- 
rested  ilie  prisoner ;  and  his  discharging  tbe 
^uOf  whereby  the  deceased  was  killed,  too  fa- 
tally  evince,  beyond  the  least  shadow  of  tloubt, 
that  the  priioocr  did  nitend  and  design  an  un- 
lawful killing:  and  although  the  prisoner 
might  not  hare  seen  Mr.  Elcock,  when  be  di<«- 
cbar^ed  the  gun  which  killed  bim,  yet  his 
^•hooting  at  random  was  an  milawlul  ibooting^ 
lor  Ibc  imrpose,  nnd  with  an  intent  to  kill  some- 
body iben  at  the  door;  and  therefore  that 
•booting  at  randoia  can  be  no  justification  or 
excuse  to  the  prii^ouer, — We,  who  are  counsel 
ibr  the  crown,  shall  now  proceed  lo  examine 
the  witnesses  in  support  ol"  t!»c  indictment  ; 
and  doubt  not  but  we  sbnll  b«>  able  to  make  out 
tbe  cuse,  as  I  have  stated  it ;  and  if  so,  you 
will  then  fiiid  the  prisoner  guilty,  that  be  may 
receive  the  punishment  justly  luflicled  by  law 
upon  those  who  shall  be  guilty  of  tbe  horrid 
crime  of  murder* 

Mr.  Falconer^  coutisel  for  tbe  croinu    Geo- 

vuu  jux. 


tlemen,  Mr.  Attorney  baa  represented  Ihe  case 
so  lully,  that  it  is  quite  unnecessary  for  me  to 
enlarge  U[ion  it  \  and  therebire  sb-jtl  not  take 
up  the  time  of  tbf  Court,  but  proceed  lo  Ibt 
exarniuatiuu  nf  tbe  witnesses. 

Cryer  calls  John  James,  the  bailiff,  who  ar- 
rested the  prisoner. 

John  J^mes  sworn, 

Countetfor  the  Crown.  Do  you  knoir  tbe 
prisoner  at  the  bar  ? — James,  Yes. 

Did  you  know  tbe  deceased  31r.  Francis  Et- 
cock  f — Yes, 

Were  you,  at  any  time,  employed  to  arrest 
the  prisoner  for  debt;  and  what  lisppened  in 
consequence  of  it  f  8peak  up^  that  the  gentle- 
men of  the  jury  may  bear  ytiu. — Yes,  I  wae 
employed  to  arrtst  tbe  prisoner  ibr  a  debt  due 
to  John  Atkin. 

By  whom  were  you  so  employed ?*•* By  Mr. 
Elcock,  an  attorney. 

Yon  mean,  1  suppose,  the  deceased  Mr.  El- 
cock^ bim  that  whm  shot? — Yea. 

Go  on. — Being  so  empl'iy«id  to  arrest  Mr. 
Steveuion,  1  went  to  bis  bou«e,  and  knocked  ai 
the  door.  Somebody  came  to  the  window ,  and 
asked  me,  what  I  waoteJ  ?  I  told  the  person 
who  came  to  tbe  window,  that  1  had  a  letter 
for  the  master  of  the  bouse,  which  she  tool: 
tbroMgh  ibc  window  ;  and  I  supfHiie  il  wtf 
debvered  to  Mr.  Stevensou. 

Why  do  you  suppose  so  i"— necau**e,  in  a 
little  time  after,  Mr.  Stevcusini  opened  the  dnnr. 

Tbe  prisoner  (ipiued  tbo  door,  you  say  ? — 
Yes,  and  he  asked  uie,  wlieiher  t  lived  with 
Ihe  gentleman  who  sent  the  letter,  or  from 
whom  tbe  Idler  came  ?  I  told  him  1  did  ;  and 
Mr,  Stcvcns^on  inuled  me  in. 

Well ;  What  happened  afierwards  f — l.went 
into  tbe  buuKO  with  Bh\  8tevenHOo,  and  we 
then  wenl  together  towards  tbe  hack  door  ;  nnd 
al  the  back  door  Mr*  S^teicnaon  stood  sul),  to 
call  his  servant. 

Wberealjouts  at  the  back  door  did  tbe  pri- 
soner stand  filill,  to  call  his  servant  ?  Was  it 
tfithin-fiide  of  the  door,  or  at  the  out  »ideof  the 
doorf — lie  stood  btill  upon  a  step,  at  the  back 
door,  tbe  out-side  of  the  door;  and  I  was 
within-side  of  tbe  door, — 1  then  took  the  war- 
runt  I  had  against  Mr.  Stevenson  out  of  my 
pocket,  nnd  I  laid  my  hand  U|ion  lii^  shoulder, 
aiid  said,  tHr^  I  hope  you  will  excuse  me 

Was  the  prisoner  then  out  of  the  door?-*- 
Yes.  I  ^sid,  ^tr,  i  hope  you  will  excuse  me  ; 
for  tbe  letter  I  gave  you  was  to  decoy  you,  1 
am  a  bailiff;  this  is  a  warrant  agamst  you; 
and  you  are  my  prisoner  iu  tbe  kiog^s  name*. 

\\  bat  did  the  prisoner  say  then  ? — He 
shrieked  out,  and  said,  I  bad  used  him  ill. 

What  did  you  do  afterwards? — Mr.  8tefeo- 
son  and  I  returned  into  tbe  bouse ;  and  wlvep 
we  got  into  tbe  kitchen,  he  catted  to  Iklty, 
who  1  believe  was  his  bouse- keeper »  and  said 
lo  her,  We  hofe  done  ill  in  letting  tbia  man 
into  tbe  bouse ;  Ibr  bts  iias  arresfled  me. 

He  told  her,  yoti  liad  arrested  biaup  you  aty  ? 
— Yes. 

31 


I 


851] 


8«  GEORGE  11. 


Trial  of  John  SiefoemoHf 


[8S9 


Well ;  Wh&t  happened  then  ?---The  prisoner 
went  then  towards  the  fire,  and  turned  to  the 
screen  on  the  right  hand,  and  stood  at  the  fur- 
ther end  of  the  screen. 

What  did  he  do  then  ?— He  turned  all  of  a 
sudden  upon  me,  with  a  pistol  in  his  hand,  and' 
said,  he  would  blow  my  brains  out,  if  I  did  not 
get  immediately  out  of  the  house. 

Did  he  present  the  pistol  at  you?— (Te  did. 

What  did  you  say  then  ?— 1  told  him,  that 
was  not  the  way  to  do  business.  Mr.  SieTen- 
■on  then  snapped  the  pistol  at  me,  but  it  missed 
fire.  ' 

Are  you  sure  he  snapped  the  pistol  at  you  ? — 
Yes,  very  sure. 

Well ;  what  did  you  then  P— I  went  back- 
wards througK^the  kitchen,  and  Mr.  Stevenson 
followed  me ;  and  in  a  narrow  passage  leading 
from  the  kitchen  towards  the  door,  be  snapped 
the  pistol  at  me  again ;  and  be  snapped  the 
pistol  at  me  a  third  time|  but  I  was  then  out  of 
the  house. 

When  yon  got  out  of  the  house,  where  did 
you  go  then  ?— I  went  to  the  next  honse,  I 
think  Mr.  Nevill's,  where  Mr.  Eksook  promised 
to  be.  Mr.  Elcock  saw  me,  and  met  me,  and 
asked  me,  if  I  had  arrested  Stevenson?  I  told 
31r.  Elcock,  that  I  bad  arrested  bim,  and  that 
lie  had  snapped  a  pistol  at  me  three  different 
times,  which  obliged  me  to  eome  awny. 

What  did  Mr.  Elcock  say  to  that?— Mr. 
Elcock  said,  I  had  done  eneugh. 

How  did  yoa  proceed  afMrwards?— I  told 
Mr.  Elcock,  iff  had  a  pistol,  I  could  bring  bim 
away ;  and  be  said,  1  should  not  want  that.— 
Then  Mr.  Elcock  sent  a  man  to  the  plaintiff 
John  Atkin's,  and  to  bring  arms  from  his 
father's. 

Where  did  Atkin  live  ?— At  Cbolmondley, 
not  very  far  from  Bickerton. 

Did  the  messenger  return  with  arms? — Yes. 

What  did  you  then?— After  the  arms  and 
assistance  were  brought,  we  went  again  to  Mr. 
Stevenson's  house. 

Who  went  to  the  prisoner's  house  ?^I  went, 
and  the  plaintiff  John  Atkin,  and  a  servant  of 
bis,  I  thuik.  Four  or  five  persons,  I  believe, 
came  with  me. 

Was  there  another  sheriff's  officer  with  you  ? 
—Yes,  a  man  tolerated  by  the  sheriff,  one  Jobii 
Jones. 

Did  Mr.  Elcock  go  to  the  prisoner's  house 
with  you  ?— Yes. 

What  happened  when  you  all  returned  to  the 
prisoner's  house  ? — As  we  were  all  running 
-towards  the  prisoner's  house,  I  saw  the  prisoner 
and  another  man  out  of  doors ;  I  called  to  Mr. 
Stevenson,  and  said.  You  may  as  well  stay, 
for  we  are  coming  for  you. 

Did  the  prisoner  hear  you  say  this  ?— -I  be- 
lieve he  did. 

Did  the  prisoner  stay  for  you  ?— No ;  he  and 
the  other  man  with  him,  ran  into  the  bouse. 

Well ;  when  you  came  up  to  the  boose,  pray 
what  followed  ?— When  we  came  up  ^  the 
hoose,  1  said  te  Mr.  Eleock,  1  kaow  the  way 
li  that  door  %  go  you  to  the  other. 


hich  way  did  the  noise  oome?  Wbot 
rou  apprehend  the  gun  went  off?  In  wImI 


How  many  doors  were  there  to  the  hoiiae?-^ 
Three. 

Did  you  know  all  the  three  doors?— Yes,  I 
knew  them  all. 

You  bid  Mr.  Ek»ck  go  to  one  of  the  doon,  I 
think,  you  say  ?— I  bid  Mr.  Ekock  and  the 
others  to  take  care  of  two  of  the  doors,  ami  I 
would  go  to  the  other. 

How  far  was  the  door  that  yon  said  jw 
would  go  to,  from  the  door  yoo  desired  Mr. 
Elcock  to  take  care  of? — It  was  a  good  wsj 
distant,  in  going  round  about. 

You  said,  you  would  go  to  the  third  dosr; 
did  you  know  the  way  to  it? — Yes,  Tery  wsIL 

Did  Mr.  Elcock  say  any  thing  to  the  pespk 
in  the  house,  when  he  came  up  to  the  door?— 
I  cannot  tell  whether  he  did  or  not,  becaow  I 
was  not  present,  for  I  ran  to  the  other  sidsif 
the  house. 

Prsf,  was  the  door  you  went  lolodEcd,ff 
made  fast  ? — It  was  fast. 

When  yon  all  came  op  to  the  doors,  asyot 
have  been  mentioning,  pray,  what  folknrol? 
—In  a  very  little  time,  almost  immediately  sfler 
I  came  up  to  the  door,  I  heard  a  noise ;  I  Miri 
a  ffun  f^  off. 

Which  wa^ 
did  you  appreliend  tbe  gun 
situation  were  yon  from  the  noise,  or  repirt 
of  it  ?— The  noise  came  as  betwixt  me  ssl 
them  ;  betwixt  me  and  the  people  who  am 
with  roe. 

How  fkr  distant  might  yon  be  from  tbedoir 
where  the  gun  was  fired  ? — Nine  or  ten  jtuk^ 
it  miffht  be,  from  Mr.  Elcock. 

When  you  heard  the  noise,  and  tbe  gn|t 
off,  what  did  you  do  then?  It  most  hsfs 
alarmed  you  ?— When  I  heard  them  oyiif 
out  on  the  other  side,  I  went  backwards  to  n 
hedge,  and  looking  over  it,  I  saw  Mr.  Elcock 
held  by  two  men  sitting  on  a  block. 

You  saw  Mr.  Elcock  sitting  on  a  block,  isp- 
ported  by  two  men ;  how  did  he  look  ?— Veiy 
piteously  indeed. 

Did  you  hear  him  say  auy  thing  ?— Yco,  I 
heard  him  say,  Oh !  1  am  shot,  1  am  shot 

Was  Mr.  Elcock  at  a  great  distance  from 
the  ffun  at  the  time  he  received  the  wound,  or 
wasne  near  it?— I  cannot  tell  whether  bewii 
at  a  great  or  a  small  distance  from  it 

What  did  you  do,  after  you  had  seen  lb- 
Elcock  sitting  on  the  block?— I  returned  sgiitt 
to  my  own  door,  to  prevent  the  prisooer^ 
getting  out 

Did  you  see  Mr.  Elcock  afWrwards?— I* 
about  ten  minutes  afterwards,  1  saw  two  bm» 
carrying  him  down  the  lane. 

Were  yoo  with  Mr.  Elcock  at  the  booos  bo 
was  earned  to  ?— No. 

Did  vou  see  him  afterwards  ? — No,  I  ^ 
not  see  him  after  the  two  men  carried  him  dowo 
the  lane. 

Have  yon  the  warrant  whereby  yon  arrelli" 
the  prisoner? — I  have. 

Pray  produce  it.  Is  this  the  very  waifH^ 
under  the  aaihority  whereof  yoo  mtild  iki 
priaoDer?— Itis, 


853] 


for  Murder. 


A.  D.  1759. 


[854 


Pray,  who  dellrereil  to  you  this  warrant  to 
execute  ? — Mr.  Elcock  himself. 

Were  there  any  hotes  in  the  door  that  the  ball 
came  through  %f  hicb  killed  Mr.  Elcock,  besiiteB 
iLe  (thfit-liole  ? — Yea,  there  were  two  holes  in  \ 
the  iloor,  beiidea  the  shot- hole. 

Was  there  ever  a  slit  in  the  door  ? — ^That  1 
do  not  knov7« 

Were  the  two  holem  in  the  door  higher  than 
tlie^  shot- hole,  or  lower,  or  bow  f— The  two 
holes  were  higher  than  the  hole  which  the  hall 
bad  made. 

Could  you  see  through  the  two  holes  ?  Were 
Ibey  large  enough  to  see,  and  know  a  per^ou 
through  ?— Yes,  I  could  aee  through  them ;  I 
dill  luok  through,  and  saw  into  the  kitchen 
|»lainly.     I  and  several  others  did  so. 

Pray,  wliDt  husiuess  did  Mn  Elcock  go  about, 
when  Le  weul  with  you  to  the  prisoner's  houee  ? 
—To  assist  me  in  re-taking  l^tr.  Hteveosoo. 

Do  joukuuw  the  sberitiT's  hand- writing  f-** 
Yes,  \ery  welt 

Is  the  warrant  whereby  you  arrested  the 
prisoner,  all  of  the  sheriff's  band -writing? — 
All  is  of  his  hand  •writing,  except  two  names. 

Are  you  pofiitiTe  to  the  bheriif'g  band* 
writing? — Yes,  to  Mr.  Baxter** hand-writing, 
who  acied  as  sheriff,  and  made  out  the  warrant, 
and  delivered  it. 

Praj%  what  are  the  two  names  that  were  not 
written  by  Mr.  Baxter  ? — My  own  name,  and 
the  uatne  of  John  Jones,  another  bailiff. 

Who  wrote  vour  name,  and  the  name  of 
John  Jones  in  the  warrant  ? — Mr.  Etcock. 

Are  you  sure  oF  that  f — Yes ;  for  (  saw  him 
write  them, 

Aie  you  usually  em|>byed  as  a  bailiff  for  the 
executing  ofthesheriff^s  warrants  f— Yes,  I  gel 
my  brtaiT  by  it;  and  am  oflfn  sent  Ibr^  fifteen 
er  twenty  miles  round  the  country. 

Was  your  name  inserted  in  the  warrant,  as 
the  sheriff's  own  bailiff,  or  as  a  special  bailiff  [^ 
— I  was  a  special  lioiliff,  for  that  time,  ap- 
pointed by  the  sheriff. 

How  do  you  know  thatf^l  have  been  in- 
ibroed  so :  1  think  it  is  so  expressed  in  the 
warrant. 

Had  yoa  executed  any  warrants  from  the 
sheriff  of  the  county  of  Chester  the  year  be- 
fore ? — Ycs»  many  ;*  twenty,  or  more. 

Had  you  executed  any  trarrants  frotn  the 
present  sheriff,  under  his  authority  ? — Yes,  1 
executed  attachments  utider  that  authority, 
under  Mr,  Baxter.  I  had  four  or  five  war- 
raotSi  u^»on  process  out  of  the  Exchefjneri  at 
the  time  I  arrested  Mr.  Steirenson,  and  have 
executed  sef  eral  warrants  since  Mr.  Harrison 
became  sheriff. 

How  long  had  Mr.  Harrison  been  sheriff, 
before  you  anested  ibe  prUoner? — A  week  or 
a  fortmght  it  might  be. 

Court,  Head  the  warrant,  whereon  the  pri- 
ioner  was  arresied  by  llie  witness. 

(The  warrant  was  then  read,  and  it  appeared, 
that  the  words,  *^  bailiffs  for  this  lime  only," 
afier  the  names  of  John  James  and  John  Jones, 
ibotpeckl  btiliff8|Were  written  by  Mr,  Baxter. 


The  warrant  wis  dited  the  1st  of  March,  and  { 
there  was  an  indorsement  thereon,  "  Take  good  I 
ail  for  eighteen  pounds  eight  shillings  and  tea  j 
pence  halfpennVi  by  sffidaTtl  tiled  '^  And  un- 
derwritten, "  Elcock  by  Lowe,  by  the  aid  ] 
ftherifll")  I 

Bid  John  Evans,  the  sheriff  *s  bailiff  named] 
in  the  warrant,  go  with  you,  when  you  at-' 
tempted  to  re- take  the  prisoner? — No  ;  he  did 
not. 

When  did  the  plaintiff  John  Atkin  come  to 
you  ?   Wm  he  with  you  before,  or  at  the  time 
you  attempted  to  re -take  the  prisoner  ? — Joba  , 
Atkin  came  when  assistance  was  sent  lor,  but 
not  before.     He  came  with  us,  when  we  weul  j 
to  re 'take  Mr  Stevenson. 

[Crosa-examined.] 

Counsel /qr  the  Pritoner.    I  think  you  say, 
you  took  the  warrant  out  of  your  pocket,  and  | 
put  yonr  hand  upon  the  prisoner's  shoulderi 
and  arrested  him  Y^^Janiti.  I  did. 

Fray,  where  did  yon  iirst  see  that  warrantt  , 
w hereon  you  arrested  the  prisoner  ? — I  saw  it  j 
first  at  Nantwich. 

Who  shewed  it  you  ?— The  deceased  Mr,  j 
Elcock. 

When  you  6rst  saw  the  warrant,  was  your  j 
name  in  it  ? — No. 

Was  the  warrant,  w  hen  yon  first  saw  it,  under  ] 
the  seal  of  the  sheriff? — ^l  lielieve  it  was. 

Was  the  name  of  John  Jones  (the  other  spe* 
cial  bftiljffj  in  ihe  warrant  whun  you  first  saw 
it."* — ^1  believe  it  was  not.  j 

Was  the  name  of  John  Evans,  the  sherlff^t  { 
officer,  in  the  warrant  then  ?' — Yes,  it  was« 

Who  wrote  Evans's  name  in  the  warrant  f —  i 
The  sheriff  put  it  in. 

Of  whose  hand-writing  is  the  warrant  ? — Ife 
is  all  of  BIr.  Baxter *s  writing,  except  mj 
name,  and  the  name  of  John  Jones. 

Are  yon  sure  of  that  ?— Yes. 

Who  IS  Mr.  Baxter? — ^Mr.  Baxter  acts  for 
the  under  sheriff. 

Of  whose  hand -writing  are  the  names,  Jobu 
James  and  John  Jones,  notv  appearing  in  the 
warrant  ?^]\Ey  name  and  John  Joneses  wer« 
written  in  the  warrant  by  Mr.  Elcock. 

Are  yon  sure  that  the  names  John  James 
and  John  Jones  were  written  In  llie  warrant  by 
Mr.  Elcock  •*— 1  am  very  sure  of  it ;  for  I  saw 
him  write  them. 

Were  they  written  by  Mr.  ElcocJc,  aAer 
you  first  saw  the  warrant  at  Naotwich  ? — 
Yes. 

Is  the  warrant  in  the  same  situation,  in  every 
part  of  it,  as  it  was  when  you  first  saw  it  at 
Nantwieh? — It  is,  except  the  addition  of  the 
oames  made  since. 

^Vhere  doe:i  Mr.  Baxter  Uve  ? — In  this  city 
(Cliesler). 

Do  you  know  Mr.  Hollins  ?— Yes. 

Who  is  be? — The  Mnder- sheriff. 

Do  the  sheriffs  always  keep  their  oflSce  ie 
the  city  1* — Tbey  keep  their  office  in  the  city,^l 
where  they  please  to  appniot ;  I  belie? e  to.  i 

Aad  is  that  ihe  pli^  wb«t%  ^!&%  ^»wc>SSl% 


£55] 


58  GEORGE  IL 


warrants  are  always  madeoatf^-Tbatisthe 
place  where  they  apply  for  warrants. 

How  far  does  the  onder-sheriff  Ihre  from  this 
city  P— Twenty  miles,  I  believe. 

Was  Mr.  Elcock  appointed  by  the  sheriff  tp 
make  out  warrants  ?— I  do  not  know  that  be 
was. 

Had  Mr.  Baxter  aathority  to  make  oat  war- 
rants ?— I  don't  know. 

You  say,  the  under-sheriff  always  keeps  an 
oflke  in  the  city  of  Chester  P— Yes ;  where  the 
■heriflfs,  when  they  come  in,  are  pleMed  to  6x  it 

You  say,  you  went  to  Mr.  Elcock  after  you 
liad  arrested  the  prisoner  P— Mr.  Ekock  met 
me,  as  I  was  filing*  to  him. 

And  you  then  told  Mr.  Elcock  yon  were 
forced  to  retreat  ?— I  tokl  bim  so,  and  so  it  was. 

Is  it  the  practice,  for  the  names  of  the 
cberiff's  own  bailiffs,  or  those  bound  to  the 
sheriff,  to  be  put  into  warrants  in  the  office ; 
find  blanks  to  lie  lefl  in  the  same  warrants  for 
the  names  of  other  bailiffs,  to  be  put  in  by  at- 
tomies,  after  the  warrants  come  from  the 
office  P — It  is  the  practice. 

Did  yon  gi?e  security  to  the  sheriff,  for 
beine  his  bailiff  P — No,  not  at  that  time. 

Where  did  you  staj',  after  you  had  arrested 
the  prisoner,  till  assistance  came  to  yon  ? — I 
and  Mr.  Elcock  stayed  at  a  gen^leman^s  house, 
the  next  house  to  Mr.  Stevenson's,  Mr.  Robert 
Nevill's  house,  till  assistance  came. 

Who  went  for  the  assistance  P-— John  Jones, 
the  other  bailiff  named  with  me,  I  lielieve. 

W  hat  number  of  people  came  to  your  assist- 
ance ? — I  don't  well  recollect  the  number ;  but 
I  remember  the  plaintiff  John  Atkin,  and  his 
servant,  (f»hose  name  I  know  not)  Richard 
Bowker,  John  Jones,  and  myself  made  five. 

Did  yon  desire  Mr.  Elcock  to  stay  where  he 
was,  at  Mr.  Nevilles  house,  and  not  go  to  the 
prisoner's  house? — I  did  not. 

Pray,  had  not  you  an  iron  crow  with  you, 
when  you  all  went  to  the  prisoner's  house?— 
Yes. 

Where  had  you  that  crow  ?— I  told  Mr. 
Elcock  I  wanted  a  crow,  and  be  borrowed  one 
from  ihe  woman  of  the  house,  Mrs.  Nevill. 

You  say,  you  went  to  different  doors,  when 
you  came  to  the  house ;  pray,  were  these 
doors  on  one  side  of  the  house,  at  the  corners 
of  the  lionse ;  or  how  were  tlicy  situated  ? — 
I  said,  I  went  to  a  door  on  one  side  of  the 
house,  and  desired  Mr.  Elcock  would  stay  at 
a  door  on  the  other  side  of  the  house. 

Did  you  yourself  speak  to  the  prisoner  when 
^ou  came  to  the  house,  and  demand  entrance 
from  him  ? — 1  did  not. 

Did  John  Jones  demand  entrance  ? — I  donH 
know :  John  Jones  was  not  on  the  same  side 
of  the  boose  with  me. 

Did  you  desire  Mr.  Elcock  to  demand  en- 
trance, as  you  were  going  to  the  bouse,  or  be- 
fore you  came  to  the  house? — No,  I  did  not. — 
But  when  we  were  going  to  Mr.  Stevenson's, 
1  saw  Mr.  Stevenson  out  of  doors,  and  called 
to  him  to  stay,  and  told  bim,  we  wtra  oomiDg 
for  bim. 


TriaiofJ^AnSievensoH,  [858 

How  Air  might  you  be  from  the  yriiiww  at 
that  time  ?— It  might  bo  tbraeacore  yards. 

Were  Mr.  Elcock  and  John  Joms  «k  Me 
doorof  thehoaseP— I  donHknow. 

Did  you,  froao  the  other  side  of  the  hmMf^ 
desire  Mr.  Eloock  to  demand  cntranoeP-— 1 
could  not  see  Mr.  EkxMk  ftvea  the  ether  ade 
of  the  house. 

Prisoner.  If  the  wairant  yon  have  shewn 
to  the  C^rt,  the  aame  warrant  y4Mi  prodoced  le 
me  f-^ama.  Yes,  the  very  sane.  [PriMMr 
desires  to  see  the  warrant.  He  looks  at  k,  and 
lays,— It  is  not  the  warrant]. 

Omrt  to  the  Primur.  Lestve  the  i|miitiwi 
to  be  asked  by  yonr  eennael ;  they  kaoiw  km 
how  to  act  for  Yonr  defence.  Consider,  ysa 
stand  upon  trial  for  your  hie.  Year  coommi 
is  a  moat  melauchoiy  one,  and  very  perUoai; 
there#Bre  refer  yourself  to  the  jndgOMBt  tf 
your  counsel  in  Bsattera  of  so  great  iopoitHm 
to  you. 

Jamet,  It  is  the  very  warrant  opoa  which  I 
arrestetl  the  prisoner.  [Then  the  witneavilh- 
drew.] 

Cryer,  call  John  Alkia. 

John  Atkin  sworn* 

Counsel  for  the  Crown,  DoyoaknewAi 
prisoner  at'  the  bar  P — Atkin.    Yes,  very  mfL 

Did  you  know  Mr.  Franeis  Eloock,  de- 
ceased ?-^Yes. 

When  were  yeu.  last  in  company  with  tke 
deceased  P — I  was  in  company  with  bim  wfm 
the  2l8t  day  of  March  last,  at  the  hosse  tf 
John  Stevenson  in  Bickertoa. 

Did  you  go  with  the  deeeased  ts  the  pri- 
soner's iMinse  on  that  day  P— Yes. 

What  was  the  occasion  of  yourigoingtkicbcr 
with  Mr.  Elcock  ?— John  James  sent  far  OKt 
to  come  10  assist  the  bailifis. 

To  do  what?— To  re-Uke  John  Stevensoi. 

And  did  you  go  accordingly  for  that  pur- 
pose ? — Yes. 

Who  went  vnth  you? — Mr.  Elcock,  v4 
John  James  and  John  Jones.  We  all  wcetH 
take  the  prisoner  by  force,  John  James  barisT 
sent  for  me  to  assist  him,  af^er  the  prisoner bsl 
snapped  a  pistol  at  him.  We  all  went,  becaOM 
John  Stevenson  had  drove  the  bailiff  from  the 
house,  by  snapping  a  pistol  at  him. 

Who  told  yon,  tnat  the  prisoner  had  nmfjd 
a  pistol  at  the  bailiff  ?— John  James,  the  baimTi 
told  me  so. 

Did  you  see  the  prisoner,  in  the  bosi^ 
when  yon  came  there?— I  did  not. 

Did  you  go  with  Mr.  Elcock  ? — Yes. 

How  far  were  you  from  Mr.  Elcock,  wlic* 
you  came  to  the  house  ? — Within  three  orlstf 
yards  of  him. 

Then  you  did  not  see  the  prisoner  P— No. 

Did  yon  see  any  people  in  the  house,  wbtt 
you  came  there?— No;  but  I  imagine  pespl* 
were  in  the  house,  when  Mr.  Elcock  aai  I 
came  to  it. 

Did  you  hear  any  people  in  the  hoaHP*^ 
Yei|  we  heasd  people,  hot  iBcw  nobody. 


657] 


Jt!T  Murder. 


A.  D.  1759. 


[S5S 


Were  the  dofiri  locked,  of  made  fast  ?— Yes ; 
tbe  dufirv  were  midelkst. 

When  you  came  up  to  the  bouse,  did  Jnlm 
,  James  ^ire  f^Ir.  KIcock  and  you  anv  dif tactions 
'•bout  the  hu&inets  you  were  lo  do  there? — 
I  Y^ps;  when  we  came  up  to  llie  door,  John 
I  James  ordert^d  Mr.  Elcock  and  loe  lo  alleiid 
that  door. 

Which  door  was  U?^ll  was  the  back 
icrtcl>en  door. 

Whei*  you  came  tothe  door,  did  Mr.  Elcock 
■ay  any  Ihin^  lo  the  people  in  the  bouse  ? — As 
BOOH  af»  we  came  to  I  lie  door,  Mr.  £k'ock  said, 
Open  the  door,  open  the  door,  or  we  will  break 
jt  down.  1  ihou(,'ht  tbey  were  roakiog^  the 
door  fait. 

Was  the  door  opened  ? — No. 

Wbut  uas  done  a(ier wards,  when  the  people 
vitbin  wuidd  not  open  the  doorP^As  soou  as 
§ir*  ElecM^k  said  lio,  be  bid  me  strike  an  iron 
^crow  under  the  door^  in  order  to  lift  it  off  the 
llitfif  es;  and  1  accordmgly  put  the  crow  under 
the  door. 

Was  il  Mr.  Ekock,  who  ordered  you  to  pat 
.  the  crow  under  the  doorP— *Yes« 
I  W  hen  you  put  the  cjrow  under  the  door»  pray, 
wltat  happeneil  ?— Assoon  as  I  had  put  the  crow 
•r  ringer  utider  the  door,  Mr.  Elcock  said  to 
tne,  «luhu,  run  to  the  other  door,  for  fear 
Stevenson  uels  out  of  ii;  whereupon  I  left  the 
iCtsw  sfic'kint;  under  the  door  upon  ibe  silt,  and 
went  away  Miwanis  the  other  door,  and  bad 
|K»t  sfttoe  above  lliree  or  four  yardi  from  ibe 
iuor,  before  I  besnl  a  £fun  go  oC 

Did  vou  see  Mr.  Eleock  when  Ihecfuti  went 
llir?*-Yes. 

j  Did  he  f»ay  any  thing  Ihen  ? — Yes ;  I  heard 
fcim  ^Ay,  I  QUI  »hot,  I  Mn  shot :  and  be  felt  on  one 
Aide  ot  biiii  bsiek  down  two  ste|i«.  Richurrl 
"^wker  and  I  t«ink  him  up :  then  Mr.  Etcock 
took  tip  bis  flbiri,  and  tihewed  us  the  ii^ound. 

Whi»  wa^i  tht«i  Boi«ker? — ^He  was  an  assist- 
•flit,  who  came  with  me  to  re- take  John  Sleveo- 


What  did  you  do  with  Mr.  Elco-ck,  after  you 
iand  Bowker  took  him  up?-'*He  hung  about 
I  iiur  shoulders,  and  we  carried  him  to  a  wooden 
block,  where  lie  dcsirefl  to  rfSt. 

You  &«y,  he  pulled  up  bis  shirt,  and  shewed 
you  his  vpound  ;  pray,  on  what  part  of  his  iMidy 
mtm  h**  wouoded?— He  was  wounded  on  the 
■ide  of  the  belly,  almve  his  fffnln, 
f  Were  there  any  holes  in  the  door  where  the 
;%all  came  throut^h,  be^idef;  that  which  the  hall 
(Jnadc?  Did  ynii  gpe  the  bole  which  the  bullet 
^madc? — 1  saw  the  hole  wbidi  the  bullet  came 
irou|;;b  i  and  there  was  atso  a  slit  in  the  door, 
hicb  seemed  hifr  enough  fur  a  person  to  see 
rroi»f h  ;  and  there  were  two  holes  besides  io 

daor« 
How  large  were  the  two  boles  tliat  were  in 
door,  besides  that  which  the  bullet  maile  ? 
j*— One  of  the  holes  was  an  incb-and-half  hole  ; 
{the  other  bii^g^er.  But  the  slit  waa  afterwards 
lathed  on  the  inner  side  of  the  door. 
I  Could  you  ba?e  seen  the  prisoner  through 
iliose  holes? — No   datiht   of   it.  if  he   Itad 


betn  opposite  to  me  when  I  looked  tlirougb  ; 
hut  be  was  uol,  and  liierelote  I  could  not  see 
bim. 

Were  you  present  when  the  prisoner  fluri> 
rendered  himself  f — I  was. 

Had  be  any  tire-arniii  in  the  house,  when  be 
surrendered  i*-.-H«  had  fire-arms  at  ibat  lime. 
I  tired  od'  one  of  the  pisiols  the  day  a^ier  the 
prisoner  killed  Mr.  Elcock. 

What  diiy  of  the  month  was  that?--. The 
!22d  of  March,  Mr,  Elcock  received  hif  mor- 
laJ  wound  u|ion  the  21st,  about  three  o'clock. 

What  other  firc-srms  had  the  prisoner  when 
be  surrendered  In^siJes  the  pistol  you  tired  ?--* 
There  were  two  pistols ;  one  besides  that  which 
I  tired  ;  and  a  gun. 

Were  they  loatled  ?-"Yes. 

How  do  }ou  know  tbey  were  loaded  ?— - 
Tljat  pistol  which  I  fired  off,  was  very  bea?y 
toaded  ;  the  other  pistol  wab  discbarfU^ed  ac^inst 
ati  ash -tree,  and  I  taw  the  bole  which  the 
bulWt  liad  made  in  the  tree ;  and  the  gun  was 
tired  into  the  air. 

Wtjen  the  prisoner  surrendered  himself^  did 
be  acknowledge  that  he  had  Ore- arms  io  the 
bouse?' --He  said,  he  bad  hut  «me  pistol.  But 
the  woman  in  the  house  being  asked,  whether 
there  were  any  more  fire  arms  ;  she  told  them, 
ib^Ttf  was  another  pisloi  and  a  gun. 

You  Kay,  yon  discharfreil  one  of  the  pistols 
yaurself  f  Did  you  ?"-l  did,  and  fired  it  into 
the  air. 

Did  you  see  the  pistol  dtscbari^^ed  against 
tbf^  ash-tree?-'-!  did  ;  aod  looked  at  the  hole 
which  the  hall  bad  made.  The  gun  was  fired 
into  the  air. 

Cross- examined* 

Coumelfor  the  Prisoner,  When  yon  came 
to  re- take  the  prisoner  with  Mr.  Elcock,  what 
orders  did  John  James  pte  >cm  ? — Aikin.  He 
ordered  Mr.  Eteock  and  me  to  stay  at  the  door, 
and  he  ran  to  the  other. 

What  Orders  had  John  Jones  recetredF 
Was  lie  lo  have  no  band  in  re-takin^r  the  pri- 
soner ? — John  Jones  was  onlered  by  John 
Jiinies  to  aitend  a  woman,  Kti^fenson's  house- 
kef^per,  I  believe,  and  not  let  her  conje  near  him. 

Was  neither  John  James,  nor  John  Junes, 
with  you  and  Mn  Elcock,  at  the  df>or  where 
you  Here  stationed,  in  onler  to  re- take  the  pri- 
soner ? — Neither  of  ibeni. 

W^as  John  Jones  within  si^ht  of  you? — I 
think  be  ua«. 

Did  you  all  act  as  assistants  to  ibe  bailiff  ?*-> 
Yes. 

And  by  his  orden?— Yes.  • 

Then  the  Witness  withdrew. 
Cryer,  Call  William  GrifBth. 

WilUttm  Criffuh  sworn. 

Counsei  for  the  Cramn.  Do  you  know  th« 
prisoner  at  the  bar  ?—Griffitk.  Yes,  ferv  well. 

Do  you  remember  any  thing  about  the  pri- 
soner's discharging  or  tiring^  a  gun  at  any 
lime?  Pi'«y>  speak  up,  that  the  jury  may  to*- 


S59]  SS  GEORGE 

yon,  and  flcquatnt  them  willi  what  you  know 
of  ibe  matter. — Yes,  Sir,  i  was  in  Mr,  Stefen- 
son^s  house  «t  Bickerton^  wheo  BIr*  Ekock 
woA  shot. 

Wliat  part  of  the  house  were  you  in  al  that 
timt!? — 1  was  ia  the  bouse- place,  autl  Mr« 
9t€fenson  was  in  the  hack* kitchen. 

Wai  any  body  in  the  house,  besides  the  pri- 
tiancr  and  yourseif? — Yes  ;  a  wotnau  was  in 
the  tioyse, — a  serf  aQl-woman. 

Did  }r'ou  see  the  prisoner  tire  the  i?un? — 
The  prisoner  did  tire  lUe  gvm  at  the  hacK-door^ 
and  brought  it  in  atterwardei»  and  look  tt  into 
Uie  parlour* 

Alter  the  ffun  was  fired,  did  you  hear  no 
noise  out  of  doors  ?  Was  there  uo  alarm  roade 
aliout  it  f — ^Yes ;  the  people  without  sbouled, 
Murder! 

From  what  place  did  the  prisoner  lake  the 
gun  which  he  fired  ? — He  took  it  trom  tbt 
mantle- piece  in  the  kitchen. 

Was  the  prisoner  accustonncd  to  kceji  fire* 
arms  in  the  house  with  him  ? — 1  cannot  lell. 

How  loDif  was  it  after  the  g^iiu  was  fired, 
that  you  heard  the  people  shouts  Murder  f — In 
about  a  minute  or  two  after  ibe  gun  was  fired. 

I  suppose  you  were  curious  enough,  aAer 
t1*e  (jun  was  tired,  and  you  heard  ihe  cry  of 
n>urder,  to  know,  whether  any  body  was  hurt, 
or  not ;  were  not  you  ?— I  went  to  a  window, 
and  looked  cut ;  anil  saw  a  man  in  blue  clothes 
aup|K»rted  or  held  up  between  two  men. 

Did  you  say  nothing  to  Ihe  prisouer  upan 
Ibis  occasion? — Yeji ;  I  told  Mr.  8te¥eDson, 
tliat  f  believed  there  was  never  a  man  killed, 
but  there  was  one  hurt,  and  they  called  him 
Mr.  Elcock. 

And  pray,  when  you  told  the  priaoner  there 
was  never  a'  man  kitleil.  but  a  man  hurt,  atid 
Ilia  name  was  Mr,  Eleock  ;  what  did  he  say  to 
you  ?^He  said,  I  don't  know  what  buwoess  a 
man  of  his  coiit  had  among^  such  meo  as  iboae. 
I  am  glad  of  it. 

What  do  you  apprehend  be  meant  by  the 
words,  '*  A  man  of  ius  coatf'^     I  diio't  kamv, 

Counul  for  the  Prisoner.  You  will  pteaM;  to 
observe,  the  witness  tolil  the  prisoner  there 
was  a  man  hurl,  but  nobody  killed  ;  and  that 
was  immediately  before  tbe  prisoner  said,  he 
9ras  glad  of  it— Glad  that  nobody  was  killed. 

Then  lite  Witness  withdrew. 

Cryer,  Call  Mr.  Cooper* 

Mr.  Cooper  swom* 

Counul  for  the  Crown*  I  think  yoo  are  a 
aur^on  ? — Cooper,  Yes,  Sir. 

Where  do  you  lire  ? — At  Nantwicb. 

Did  you  know  the  deceased  Mr,  Francis 
Elciick.^ — Yes,  very  well. 

Were  you  sent  tor  at  anytime,  and  when, 
to  attend  Mr.  Elcoek,  upoo  account  of  bis 
having  received  a  wouud,  by  tbe  Jirint;  of  a 
gun,  or  otherwise  ?  Pray,  ai:(|uaint  the  Court 
and  jury  with  what  you  know  of  this  matter, 
—Upon  Wefluesday  the  '2ist  day  of  March 
laat,  a  messenger  came  to  me  about  three 


Trial  of  John  Stevenson, 

o^dock  in  the  afternoon,  deairiog  metagikto 
Bickerton,  to  Mr.  Francia   £(cock*  wbo,  tba 
messeng^er  told  me,  was  shot.     I  went  accord* 
toj^ly  with  the  maU|  and    got  ta  Bickedaa 
about  five  o^ciock  in  the  evening.     When  I 
came  there,  i  foui*d  that  Mr.  How  e,  a  i 
from  Malpas,  had  been  aent  for  Ukewtse,"! 
had   been  there  for  some  tinoe  before.    I 
Rowe  and   I  went  up  stairs  together,   19 
mono  where  Mr.   Elcock  was,   and  we  I 
him  ill  in  bed.      Almost  so  sooo  as  he  saw  nf^l 
be  pulled  up  his  shirty  and  shewed  me  wboil 
the  ball  was  lodged,  and  seeme4  ioopatitiit  ti] 
have  it  taken  out :  u|k>u  seeing  the  wound,  1 1 
took  the  hall  between  my  finger  aodtfauml^i 
and  |ieroeived  I  could  easilv    dislodge  it.   1  I 
then  examined  the  wound,  where  the  ball  bi4 
entered,  and  found  it  cut  about   t^o  iocbfi 
from  the  hip  ou  the  left  side  of  his  belly  *,  il 
passed  through  his  belly,  by  hii»   bowels,  m 
doubt,  and  lodged  five  or  six  inches  below  tk 
right  hip,  almost  through  tlie  skill,     AsiMiJ 
as  I  saw  Ibis,  I  took  Air.  Ilowe  ioto 
room,  to  consult  what  was  fittest  to  bedoot;] 
and  1  told  him,  it  was  uiy  opinion,  that  Jt, 
Elcock  was  a  dyin^  man,  and  that  I  didoilj 
know  whether  it  would  he  of  any  uae  talikl  j 
Ihe  ball  away,  although  it  could  l>e  so<iiiljl 
ejected.     But  considering  thai  it  wouldgivtl 
him  some  satisfaction,  and  perhaps  ease  tso, 
by  taking  the  ball  from  the  place  where  it  M  ] 
lie,  Mr*  Rowe  and  I  went  into  the  room  npa^ 
and  E  took  out  tbe  ball.     After  1  had  lakeu  tbe 
ball  out,  and  dresseil  the  woynd,  and  put  i 
bandage  about  it,  1  asked  Mr.  Elcock,  bon  k  I 
did  ?  He  said,  he  was  easier.     Doctor  ll«)rii  | 
came  in  ader wards ;  and  when  I  had  told  hin  I 
the  nature  of  the  wound,  he  looked  upon  rhs  I 
case  to  be  extremely  dangerous.     The  dodor 
stayed  with  him  two  or  three  hours,  and  dia  I 
went  awav  ;  but  Mr.  Elcock  desired  me  llrf  I 
Mrs.  Nevifl  to  sit  with  him  ;  which  wedidiilij 
his  father  did  so  too,  till  ten  minutea  past  llmi  ] 
Ihe  next  tnorning»  and  he  then  expired.    (Tbi  I 
witness  produces  the  ball.) 

Do  you  believe  that  the  wound   ^ 
Elcoo^  received  was  the  occasion  of  I 
-— 1  firmly  behave,  that  the  wound  whicb  iaj 
received  was  the  occasion  of  his  death.  I 

Did  Mr.  Elcock  say  any  thing  to  yoa  li| 
his  agonies,  upon  tlie  melancholy 
and  what  ?— 31r.  Elcock  told  m«,  that  be  wtsl 
shol,  as  he  was  stooping  down,  v»ith  a  ciwi 
in  his  hand,  striving  to  open  the  prisoQef^l 
door. 

Did  he  tell  you  from  what  part  of  tbe  I 
he  was  shotf — He  said,  he  received  the  wdul  ] 
at  the  door  of  the  pri^oner^s  house. 

Pray,  how  came  the  halt  to  be  trade  m  fiilij 
in  that  uncommon  form  f — I  beliere  its  i 
through  the  door  was  Ihe  oocasion  of  iial 
in  that  form.    [Then  the  Witneaa  witi 

Cryer,  Call  Mr.  Baxter. 

Mr,  Robert  Baxter  sworn. 

Cotijuel  for  the  Crown,     Pray,  Mr.  Bizt«r, 
&re  you  caucerned  ia  any,  and  wbal 


Jqt  Murder. 

Mr.  Ilornsoo,  tbe  present  sheriff  of  the 
oi' Chester  f — Baxter.    Yes,  Sir,  I  %m 
rn«fcl  for  the  sheriff,  &nii  keep  his  office, 
I  you  make  out  v^uiranN  for  ihe  &beri6r? 

I  yon  rcccire  at  any  time,  ami  wheo,  a 
Ift^inftt  the  i)rt5orjer,  at  Oie  tiuit  of  Johti 
iP — I   T«'<j**ived  a  writ  aifiiinsl  him  tjp*in 
1st  of  March  last.     (VVf»it;h  he  produces) 
ok    m 'HI  that  warrant.     Did  you  mnke 
hi'  Mt  upon  Ihe  writ,  in  order  to  ar- 

_||  rrP— I  di.L. 

And  Are  you  sure  that  h  the  same  warrant 
|ttit  did  make  out  ? — Yes  i  1  am  sura  it  ti* 

be  Writ  was  read,  and  upon  the  back  of  it 

'  Ttike  bail  f'nr  eighteen  pounds 

1^  '  T  and  leii-pence  baU-penuy,  by 

L<t  1/^ — And    auother   indorsement, 

i  promise  to  indemiufy  the  sheriff  in  the 

buliou  of  the  writy  as  to  tbe  special  bailiJFs, 

*  John  Atkin.' 

,  usual  for  theshenffto  appoint  agentle- 
I  this  lowij  to  execute  the  otlice,  aod  to 
'  hmi  !*— It  \n  U!«u.ih     I  have  been  several 

lappointe<i  my&clf. 
rutj  rrceire  all  the  writs  that  are  sued 

firected  to  the  sherifl*  of  tlirs  county  ? — 

do  you  make  out  the  warrants  upon 
rritaf^l  do, 

I  return  the  writs  ? — Yes. 
)f  y<iu  execule  all  other  acts  that  the  aherifl' 
1  do,  if  he  resided  here  himself? — Yes ; 
t  attending  the  assizes  and  sessions. 

ihi«  been  the  c^mstant  practice  in 
/P— Yei,  during  all  my  lime, 
been  u^ual,  when    plaiulifFs  would 
vtspeciiil  batHfl^!i  appointed,  to  lea?e  blanks 
I  warrants  for  their  namr s  to  be  inserted  ? 
W,  npon  the  sheriflT  being  indemnified. 
V«  you  done  this  yourself? — Yes, 
^e  you  known  otners  to  do  il?-*-Ye«,  i«- 
s,  to  my  knowle<l^e, 
\  erer  know  it  to  be  rrfused  T — No, 
\  tbe  sbetifl'  being  indemnifred,  and 
'  la  known  to  be  a  fiiir  pmctiser.     I 
I  it  refused,  where  the  practiser  was 
J  or  where  the  sheriff  run  any  risk  or 
it  and  the  indemntt}'  was  not  approved  ; 
the  attorney,  or  practiser,  and  the 
ity  are  liked,  it  it  usoalk  done* 
^ptiat  IB  the  nature  or  the  indemnity 
I  ftheriff  npon  this  occasion? — It  is, 
old  not  suffer  by  escapes  or  rescaes. 
I  ikia  been  the  constant  practice  used 
mnB who  ha?e  acted  in  the  sheriff's 
fin  ihr  cap  CI  city  you  now  act  P— It  has 
» itl  the  time  1  have  known  tbe  office. 
ETt  ?^y*  i*  ^^*^'  ?»Sef en  or  eight- 
r  ye«n. 
r^lMve  blanks  in  tbe  warrants  for  tbe  names 
flhetpgctai  baititl's  lo  be  inserte^l  ? — Yes* 

'  er  in  such  practice  convenient 
I  aod  Huiiori  in  the  court,  or  iu- 
10  Ibetu  ? — h  ii  looked  upon  to  be 
I  for  the  plaintiffs. 


A- a  17^9- 


[86f 


Do  yon  think  so  yourself?—!  look  upon  i| 
in  thai  light. 

Had  Mr.  I^we  or  Mr.  Eksock,  or  both  of 
them,  a  rit^lit  toin.t€rt  the  names  of  the  hpecial 
bailiffi;  in  the  blank  left  In  the  warrant,  whereon 
Ihe  prisoner  was  arresti^d  ? — I  appreheml  eilJier 
Mr.  Lowe  or  Mr*  ICIcnck  hod  a  right  to  do  so. 

Is  it  u>ua|  fur  atiortties  in  the  country  to  send 
their  directions  to  their  agents  in  Chester  to 
take  out  writaf — Yes. 

And  i^i  the  agent^^  name  generally  put  to  the 
writ»  or  Ih*  name  of  the  ati<nney  in  the  country 
only  ? — The  agent's  name  is  generally  added 
to  I  lie  name  of  the  country  attorne)-,  in  the 
writ,  since  the  late  act  of  parliament  for  that 
purpose;  but  before  that,  the  name  of  the  at- 
torney wag  only  put  to  the  writ. 

Aod  you  say  that  either  Mr.  Lowe  or  Mr. 
Elcock  bad  a  right  to  insert  tbe  names  of  the 
special  bailiffs  ?^ — Yes,  I  apprehend  so. 

Cross 'examined. 

Cvuntelfor  ihe  Prisoner,  Do  not  the  allor* 
nies,  and  other  persons,  usually  send  the  names 
of  tbe  special  bntiiffii  to  be  inserted  in  tbe  war- 
rants by  the  sheriff,  or  by  those  wlio  act  for 
hitn  ? — Baxter,  8omctimeR  people  do  send  Ihe 
names  of  the  ppocial  baiiiffii  to  be  iniiierted. 

lias  it  not  been  the  most  usual  way  in  your 
lime  to  i\o  so? — It  was  when  I  (Irst  knew  the 
otEce  tbe  most  usual  way,  in  17S3,  and  17^3. 
But  warrants  went  out  vviih  blanks  then. 

Did  Julin  Evans,  tbe  baihff  named  in  Ihe 
warrant,  indemnify  the  sheriff? — Up  hhn  given 
security  to  the  sheriff,  I  believe,  lint  tbe  in- 
demniiy  was  for  the  special  bailiffs. 

In  the  year  175^,  or  1733,  were  blank  war- 
rants sent  out,  and  not  the  names  of  the  special 
bailiffs  inserted?— When  I  was  concerned  for 
Mr.  Face,  who  was  sheriff  in  1732,  or  173;!*, 
several  blank  warrants  were  sent  out^  and  not 
the  special  bailiffs  inserted. 

How  many  warrants  were  sent  out,  with 
blanks  for  the  names  of  the  special  bailiffs,  in 
Mr.  Page's  time? — 1  cannot  tell. 

Were  not  warrants  oftener  delivered,  with 
the  names  of  the  special  bailiffs  inserted  in  the 
office^  before  they  %reresent  out,  than  warrants 
^vith  blanks,  for  the  names  of  the  special  bai< 
tiffs  to  be  afterwards  inserted  by  Ihe  attorniesf 
— I  believe,  warrant^i  wereollener  sent  out  with 
the  names  of  the  special  bailiffs  inserted,  than 
with  blanks. 

Is  that  the  warrant  you  made  out  on  the 
writ  the  1st  of  March  a^^atnst  the  prisoner  ?— 
(Looks  at  thewiurant.)  It  is  the  same  warrant. 

Is  it  in  the  same  situation  it  wa9,  when  you 
deliverefl  it  out  of  your  bands: — No. 

How  has  it  been'altered  ?  bow  does  it  differ  ? 
—The  names  John  James  end  John  Jones 
have  been  sinoc  inserted. 

Pray  wan  tlie  seal  to  the  warrant  before  yoy 
delivered  it  out  of  your  hands  ? — Yes. 

Arc  you  sure  of  that  ?— Yet,  for  I  put  tbe 
•eal  to  It  my  vol  f. 

Cmri,  i>o  you  remcinber,  that  any  arrest 
was  ever  set  aside,  ordii^>i.u4^  m^'^uVvtV  . 


863] 


Sl(  GEORGE  IL 


Trial  of  John  Sievetuottf 


[S64 


a  blank  warrant  ba?iiig  been  sent  out  f—BtutUr, 
No,  never. 

Coun,for  the  Prig,  Through  all  the  conrse 
of  vour  practice,  has  it  not  been  mott  usual  to 
make  out  irarrants  af\er  you  received  the 
names  of  the  special  bailifis,  than  without 
them;— than  makioff  out  blank  warrants? — 
Baxter.  Yes,  it  has  been  roost  usual,  I  think. 

When  the  names  of  the  special  bailiffs  are 
sent,  do  you  always  insert  them  in  the  war- 
rants?—Yes,  Ido. 

Pray,  how  is  the  under-sheriff  of  Cheshire 
appointed  ? — He  is  appointed  by  the  sheriff,  by 
deed. 

Have  yoo  any  written  authority  from  the 
sheriff  ?— No  further  than  by  letters  sent  me 
sometimes  about  the  business  of  the  office. 

How  were  you  appoiiiteil  ? — ^The  ni((ht  be- 
fore the  sheriff  was  sworn,  I  sopped  with  him, 
and  it  was  agreed,  I  should  act  for  him. 

Who  were  present,  when  you  were  appoint- 
ed to  act  for  the  sheriff? — The  sheriff  and 
under-sheriff  were  both  present,  and  appointed 
me. 

Were  you  appointed  by  any  instrument  in 
writing,  or  not?— 1  was  not. 

Js  it  usual  for  the  sheriff  and  under-sheriff 
both  to  appoint  an  agent  to  act  for  the  sheriff? 
—I  believe,  the  usual  way  is  by  the  uoder- 
sheriffonly. 

Is  there  no  other  method  of  appointing  a 
person  to  act  for  the  sheriff,  but  by  parol  ?— 
I  don't  know  of  any  other  way. 

Js  the  seal  to  the  writ  the  seal  of  office  ?— It  is. 

Have  the  persons  concerned  for  the  shpriff  of 
this  county  usually  that  sort  of  seal  f^-Yes. 

Where  had  you  this  seal  ?— I  had  this  from 
Mr.  Griffith,  having  lost  my  own. 

Then  the  Witness  withdrew. 

Mr.  Gastrell,  clerk  to  Mr.  I^we,  an  at- 
torney in  Chester,  was  then  called,  to  prove 
that  John  At  kin  signed  the  indemnity  given  to 
the  sheriff,  when  the  blank  warrant  against  the 
prisoner  was  sent  out.  But  the  Court  thought 
It  unnecessary  to  examine  him. 

Mr.  Cross,  an  attorney  in  Chester,  sworn. 

Counsel  for  the  Crown,  Are  you  acquainted 
with  the  method  of  suing  out  process  in  the 
court  of  session  for  this  county  ?—  Cross,  Yes. 

Is  it  usual  to  send  out  warrants  from  the 
sheriff's  office,  with  blanks  for  the  names  of  the 
8pe<Mal  bailiffs  to  be  inserted? — When  special 
bailiffs  are  desired,  warrants  frequently  issue 
with  blanks,  for  their  names  to  be  inserted. 

Do  you  know  this  to  be  frequently  done  ? — 
Yes. 

Coun,for  the  Pris,  But  is  it  not  more  usual 
lor  the  names  of  the  special  bailiffs  to  be  put 
into  the  warrants  in  the  office,  before  they  are 
sent  out,  than  for  warrants  to  issue  with  blanks, 
for  bailiffs  to  be  inserte<l  afterwards  ?—Cfv»i. 
ttometimes  the  names  of  the  special  bailiffs 
are  inserted  in  the  office. 

I  sav,  is  it  not  oftener  done  ?  more  frequent- 
ly ?—i  don't  know  but  it  may. 


Coun,/or  the  Cr.  Don't  you  think  it  pmdsat, 
sometimes,  not  to  send  the  names  of  the  special 
bailiffs  to  the  office ;— to  conceal  the  names  till 
they  are  inserted  by  the  attorney  f — Cron.  Ido. 

Mr.  Fluit^  an  attorney  in  Chester,  f  won. 

Coun.for  the  Cr,  Did  your  fatbor  ever  set 
as  agent  lor  tbe  sheriff  of  this  coanty  7— JPAnT. 
He  did. 

Was  it  customary  for  your  father  to  send  ost 
warrants  with  blanks,  for  the  names  of  tht 
special  bailiffs  to  be  inserted  afterwards?— 
He  did  leave  blanks  often  in  the  warrants. 

I  suppose  you  understood  that  your  fiukr 
had  authority  so  to  do? — I  always  onda^ 
stood  that  he  had  authority  to  do  it. 

Coun.for  the  PrU.  But  did  your  father  oetar 
refuse  to  send  out  blank  warrant!,  to  ysv 
knowledge? — Fluit,  Yes ;  he  8ometiiBei(H 
when  he  suspected  the  attomev ;  but  wnff 
when  he  knew  the  attorney  to  be  a  fair  prK- 
tiser. 

Here  ends  the  Evidence  on  behalf  of  the  Crm. 

Court  to  the  Prisoner.  Hare  jfoo  aoy  vil- 
nesses  to  examine?  This  is  the  tune  for  aik* 
ing  your  defence. 

Tlie  Prisoner  called  do  witnesses,  Dtrflii 
any  thing  in  his  defence. 

Mr.  Recorder  Tawnsend^  of  eoaDselferdi 
prisoner.  The  prisoner,  1  believe,  baa  as  vil' 
neeses  to  call  to  bis  defence,  except  one  numi 
and  1  do  not  know  yet,  that  it  will  beneoiiflij 
to  examine  her. 

Tbe  occasion,  my  lord,  of  my  appsinf 
this  day,  as  counsel  for  the  prisoner  at  tks  Itft 
is,  on  all  sides,  a  very  lamentable  occaast  ii- 
dced,  which  must  unavoidably  affect  sfdj 
body,  who  has  the  least  degree  of  teadsnM^ 
and  humanity  ;  and  glad  I  nhould  have  !«>• 
if  tbe  prisoner  had  submitted  to  tbe  arrest,  IW 
illegal  soever,  rather  than  to  have  takca  th^ 
desperate  methods  lie  did  for  delivering  biiMiHf 
from  it ;  and  I  could  wish,  that  it  was  now  ^ 
his  power  to  satisfy  the  gentlemen  of  tbejsry* 
upou  the  present  trial  for  his  life,  that  be  ^ 
not  discharge  the  gun,  nor  kill  tbe  uafortasa^ 

J^oung  gentleman  Mr.  £lcock,  rather  thaa  *^ 
lave  recourse  to  the  sanction  of  the  law  ftr 
justification  of  his  rashness :    yet,  as  the  el 
happy  condition  of  the  prisoner  at  the  barde^ 
require  ail  the  aid  and  assistance  which  tbe  1^^ 
can  allow  him,  for  the  saving  of  his  life,  I  hsf^ 
I  shall  incur  to  myself  no  imputation  iu  tbefi^ 
charge  of  my  duty,  by  endeavouring  to  mimf 
your  lordship,  under  the  authority  ot'  tbe  Is^ 
that,  although   the  prisoner  did  dischan^  ^ 
gun  whereby  Mr.  Elcock  was  killed,  yet,lk^ 
he  is,  hy  law.  acquitted  from  the  crime  ^^ml 
der;  and  that,  under  the  circumstaDCCSsf  bi^f 
case,  such  killing  will  not  amount  to  m^A^f 
manslaughter. — My  lord,  I  humbly  ceaeW^ 
that  no  warrant  or  process  from  tbe  sheriff  I 
be  exivuted  by  any  persons,  but  by  tbsss'wMl 
tbe  sheriff  appoints   to  execute  Ihces.    tM 
high-sheriff  undoubtedly  may  appoint  Hi  ^1 


Jbff  Murder, 


puty  to  tct  for  him;  ami  the  ai>piDiinent  of 
the  iini1««f-sliPf iff  of  i\m  cuuuty  wns  bv  tlecJ, 
ma^  not  ft  p^rnt  apjiftiatment,  UiKJer  tliat  a|>> 
polrameut^  tlte  utMlc'r-Khentf  is  ariii«*it  wttli  a 
power  id  doin^  the  hiivhil  duty  anti  hmme'^a 
efthe  tUerlflF  himself.— But»  my  l^ird,  ii»  the 
present  c«se,  Mr.  Bixter^  m  hu  inailp  out  the 
vrarranl  Oj^arnst  the  priKoner,  was  a  pt^rson  act- 
inif  under  the  uiitjer'sheritr:  he  \va.^bot  ap« 
poink'tj  by  any  deed,  or  viistnimetit  in  >vritin|f  ; 
but  lie  WM«  tiJpointed  by  purol,  by  vroril  of 
inotJih  only  :  and  Mr.  Baxter^  as  aiiststant  to 
the  uudf r'Stheriff,  under  this  deffcuve  a|)po|iit- 
Dient^  made  out  a  warrant  a^aiust  the  priROuer, 
and  f^eiit  it  out,  at\er  it  wat  sealed,  with  a  bJaitk 
left  therein  for  ihe  name«  t»f  the  tp^cial  bailifis 
%o  he  inserted  in  it.  The  names  Joho  Jiinie.<i 
And  John  Jooes  were  not  in  the  w«rr*iul,  when 
JUr.  Bkixler  delivered  it  oat,  under  the  seaU  It 
^m  lukeij  twenty  miJes,  to  Nanlwich,  1o  have 
Ihe  n mites  atterM^ards  itiiierLed  in  ]t»  This  i» 
proved  hy  Ji»lin  James  himself,  who  &>veArs, 
tbut  he  saw  Mi\  Elcock  write  liiti  name,  and 
the  name  of  John  Junes,  in  the  warrant  ai 
^antuioh. — My  lord,  I  hiimhiy  ap|irehpnd, 
itbat  no  warrant  what^io^rer  from  the  sheiiti*, 
can  or  ou^ht  io  r«eeive  the  leaM  add  it  tun,  dirnt* 
putlon,  or  alteration,  after  it  ]»atisea  the  seat  of 
otHce ;  iind  that  if  any  person  in  theexeculioo 
of  a  warrant,  which  shall  receive  any  addition 
0r  dinitnutinn>  or  any  alteration  wimtMoever, 
filter  n  has  jta^j^'eil  tfie  ^eal,  shall  he  kiUeil, 
9ticli  killuiir  cuniiot  bi^  murder-^ And  If  a  per- 
con  not  lawfully  nnthorised  shall  attempt  to 
fU'firiTe  a  tiiMi  of  tiiji  liberty,  alKtonijh  hy  a 
Wtfai  ^lunaiii,  and  iit  I:i1led  in  HJtdi  attempt, 
tlif  ItiHini^  in  ihiit  cas^e  uho,  is  not  murder.  My 
lurdi  I  hare  (he  authority  utai  tp^at  a  man, 
mB  rinmeot  a  lauyer,  an  ever  lived,  which,  I 
liumhly  itpprehcnd,  is  directly  in  point,  Hiilii*s 
yieaa  ui'  the  Crown,  p,  457,  where  mj'  I  end 
Urtle  Uya  down  the  law  in  these  wfirds  :  **  IT  a 
#tieriff^a  linililT  cornea  to  execute  a  proctsi^, 
liut  hin  not  a  lethal  authority  ;  as  if  Ihe  name 
of  the  haihff,  p la iniiff,  or  defendant,  he  inter- 
lined, or  u»  HIT  led,  ufier  the  Realinif  thereof^  hy 
the  hut litr  himself^  or  any  other  ;  ifcudi  batlifT 
|>^  killed.  It  i^  but  mansluni^hter,  and  not  mur* 
der."  iod,  my  lord,  notHjihstandincj  the  evi- 
tksiice  opven  by  Mr,  Baxter,  and  tllr.  Flnit^ 
that  warrants  liave  been  ^eoemtly  sent  out  with 
bUokK,  f<jr  ttie  names  of  the  special  officers  to 
Im  afttr wards  iniierted,  I  Itumbly  contend,  that 
the  warrant,  whereon  the  prisoner  was  ar- 
festeit  hy  James,  the  S|iecia1  ofiicer,  at  the  »uit 
#f  John  Atkin,  was  an  illegal  warrant,  ina»- 
inuch  a«  the  names  ol  the  haili^ii  were  added 
to,  or  inverted  in  the  warrant,  afterithud  piMaed 
the  seal ;  and  it  was  at  the  peril  of  the  party 
executing  that  warrant,  whether  death,  or  any 
other  mischief,  endued  upon  it:  and  notwith* 
•irtodin^  warrants  have  sometimes  been  sent  out 
by  the  person  actmg  for  the  sherilf  with  blanki 
left  in  them  for  inserting  the  names  of  the  bai> 
li0s,  afier  the  warrants  have  heen  sealed,  yet 
that  usage  or  practice  cannot  be  considered  to 
•ittend  to  Of  er- rule  or  set  asid«  the  kyown  law, 
VOL.  XIX, 


A.  D.  I75!>- 


[869 


set  down  f»y  toy  lord  Hale. — My  tord^  this  is 
a  potnt  of  iaw,  which   l   hope  your    InrdMhip^ 
wdl  luok  upon  to  l>e  wnrUiy  of  ion>ii"leraiioii^i 
anil  not  he  tell  to  rlir  deteiniin»tion  olf  the  jury  jhi 
It  ha^  hkewisie  a|ipeaiediu  eviileiite,  that  whea 
John  Atkin  and  John  Jone*t  ci^me  u*  Ihe  a^tiisH] 
anre  oi"^  John  James  the  haiLilf,  all  ihiii  Jame 
rtrdered  Mr,   Ktcoik  to  do,  wu»*  to  «iuy   at  I  hi 
dour;    he  ifave  iiim  no  auihuriiy,  nor  orderi  I 
break  open  the  prinuuerN  hoivne;  all  he  v%ui»  I 
do,  was  to  tfuard  the  door. —  But,  it  appears 
evidence,  that  Mr.  Elcock,  in  a  very  extraor-i  j 
dinary  dej^i-ee,  exceeded  the  hmiu  i>f  the  orde 
\Thich  the  bailiff  had  i^^iven  him  :  for,  a  crow  t 
rinf^er  was  ihrust  utnler  the  dmn*,  (thiit  verj 
door  which    he  was  orderL'd  to  i^tity  nt  onl] 
poi^iii^  it  open  ;    and  Mr.   Eleock  himself, 
bis  agonies,  declaied  tn  Mr,  C<Mt|Jer  the  sui 
geon,  who  uttended  him,  that  he  tvas  striving 
inbreak  open  the  door  «ith  the  erow,  uheo 
thetrun  %va3  tired  :  and  therefore  I  submit  it  1 
your  lordship,  whe^ier  Mr.  Elcoek  dnl  not  cJC-^l 


I  bpl 


James,  suppo«ioi^  thai  James  had,  in  hiiiise 
skny  power  at  all,  (t^liiuh  I  humbly  cuueeivvl 
lie  had  not)  and  could  have  translerred  aoj 
power  or  authority  to  Mr,  Eleock »  These  ar 
two  questions,  my  lord,  which  appear  to  me  ttl 
be  in  favour  of  the  prisoner,  aiid  to  dei^rvi 
consideration  ;  and  if  the  Court  shall  be  of  th« 
aame  opinion,  I  humlily  hope,  you  will  no 
Huffer  a  {general  verdirt  to  ^f\  against  the 
soner,  but  reserve  tho^e  poiols  ibi*  the  consiM 
deration  of  the  Court. 

Mr.  Prrrj/n,*  also  of  counsel  for  the 
soner.  The  onJy  question,  my  lord,  is,  Whe*j 
ther  the  killintr  'Mr.  Eleock,  in  manner  irive 
in  evidence,  auj^tit  to  be  considered  ay  murder^ 
or  man&lau^Lter.  It  appears  clearly,  that  tha 
namta  of  the  two  bailitfs  ^^ere  not  inserieil  in 
iho  warrant,  when  it  issued  under  the  Heal  of 
the  sheriff;  and  therefore  it  was  an  iliejfal 
warraoi,  tinder  wtiich  James  couhl  mil  derive 
any  laivliil  authority  to  arrest  the  (oihoner: 
fur,  according  to  lord  Hale,  the  warrant  tihoultl 
bave  been  a  foil  and  ciurtplete  warrant,  when  it 
passed  the  seal,  and  01114 hi  not  to  have  been  a 
blank  warrant,  H.ile'«  Pleas  of  the  Crown,  457, 
(quoted  hy  Mr  llecorder.)  Ami  *he  present 
Idttt  proved  by  Jatnes  and  Mr,  Baxter,  that  the 
two  special  bailitfs  were  inserted  alter  the  war- 
rant was  sealed,  comes  under  ilue  words  of  ibil 
great  atrtborily.  3Iy  lord,  yon  will  observe, 
that  the  sheriff's  own  bailif}',  named  in  the  viar^ 
rant,  was  not  called  upon,  nor  employed  lo  exe- 
cute il,  nor  ilid  be  attend  the  execution  uf  it  j 
but  the  arresiing  of  the  prisoner  was  entirely 
left  to  the  special  baihlf»,  wlio^  J  humbly  ap- 
prehend, had  not  the  least  (tower  or  aulluo  ity 
lo  execute  it. —  My  lord,  I  shall  quote  other 
auihorities,  which',  I  humbly  apprehend,  will 
make  in  favour  of  the  prisoner,  and  those  are, 
Hsiwkins's  K  C.  80.    Cro.Car.  3f^.     1  Joiul 


•  Appointed  in  17 7§ 
chequer* 


E  bttofi  of  the  £it'' 


867]  S2  GEORGE  IL 

Sia,  379.  1  Lm.  91.  19  Coke  49.  And  I 
neotioa  Ibose  aatlioritief ,  to  sbefr,  that  if  a 
varraot  be  in  tbe  least  defective,  tbe  arrest 
cannot  be  juatified.— With  rei^ard  to  the  power 
derived  to  Mr.  Elcock  from  Jamea  the  bailiff,  I 
hope  it  will  appear  to  yoar  lordsbip'a  satiafao- 
tioo,  that  Jamefl  bad  not  the  least  power  or  au- 
thority whatsoever  in  himself,  and  therefore 
cookl  not  transfer  any  to  Mr.  Elcocfc.  Bat 
■opposing^  the  bailiff  had  any  power  to  call  as- 
sistance, and  to  have  given  his  orders  to  31  r. 
Elcock,  yet  Mr.  Elcock  should  have  strictly 
observed  the  orders  which  had  been  given  to 
him — he  should  hare  pursued  the  directions, 
namely,  to  stay  at  the  door ;  and  not  have  ex- 
ceeded the  limits  of  his  authority,  in  the  man- 
ner he  did,  in  attempting  to  break  down  that 
door,  which  he  was  only  directed  to  guard,  or 
stay  at,  and  had  not  any  orders  or  authority  to 
break  down.  There  are  other  authorities, 
which  1  humbly  conceive  will  be  of  use  to  the 
prisoner,  when  they  come  to  be  considered, 
9  Lev.  i-U.  3  Inst.  105, 143,  and  3  Lev.  146. 
They  treat  of  arrests,  and  the  authority  of  the 
bailiflb,  and  their  assisUnts.  No  request  was 
made  from  the  bailiff  to  Mr.  Elcock,  to  break 
down  the  door,  which  should  have  been  pre- 
viously done,  before  Mr.  Elcock  could  have 
had  the  least  colour  or  pretence  for  attempting 
to  break  open  the  door  of  the  prisoner's  house. 
Bretton  and  Cole.  Salk.  409.  1  lUv.  306.— 
Upon  the  whole,  I  hope  your  lordshiji  will 
thmk  that  those  points  deserve  tbe  considera- 
tion of  the  Court,  and  that  they  ought  not  to  be 
left  to  tbe  determination  of  tbe  jury. 

Mr.  Maddocks,  I  am  also  of  counsel  with 
Mr.  llecorder  Townsend,  and  Mr.  Perryn,  for 
the  unhappv  priioner  at  the  bar,  and  hope  your 
lordship  will  be  of  opioiou,  that  a  good  deal  of 
nicety  attends  this  case,  not  proper  for  a  jury 
to  determine  upon ;  and  that  several  |»oints  of 
law  have  arisen,  well  worth  the  consideration 
of  the  Court.  The  law,  my  lord,  arises  out  of 
the  fact.  This  appears  to*  l>e  an  indictment 
•gainst  the  prisoner  for  the  murder  of  Mr. 
Francis  Elcock,  who,  when  he  was  murdered,  I 
was  assisting  to  re- take  a  person  making  his 
escape  Irom  an  arrest:  and  1  shall  consider 
the  case  according  to  its  nature.  First,  If  Mr. 
Elcock  was  a  trespasser,  then  the  prisoner's 
killing  him  could  be  only  manslaughter,  hot 
murder.— Secondly,  Whether  upon  the  writ, 
the  special  bailiff  and  Mr.  Elcock  derived  an 
authority  for  what  they  did.  And  here  1  shall 
mention  one  authority,  Hawkins's  P.  C.  86, 
which  shews,  (although  the  ccse  is  not  exactly 
the  same  with  this)  that  the  general  rule  is,  if 
a  party,  under  colour  of  authority,  not  having 
legal  authority,  shall  attempt  to  take  away  a 
man's  liberty,  and  is  killed  in  the  attempt,  tbe 
killing  of  that  party  is  not  murder,  but  man- 
alaughter:  and  whether  Mr.  Elcock  was  a 
trespasser  or  not,  will  de|iend  upon  the  autho- 
rity he  derived  under  the  writ.— The  writ 
kaelf  does  not  appear  to  be  void,  and  therefore 
1  «roQ*t  speak  upon  it;  but ihail  oonfiiM  my- 


Trial  qfJokn  Stevemomf 


\JBBR 

■Hf  to  tbe  warrant  mde  oat  for  uraMinf  the 
pAsoner,  io  obedieoee  to  the  writ.    As  to  the 
facts  given  in  evidence,  it  appears,  that  the 
warrant  was  iasned  by  Mr.  Baxter :  tint  Mr. 
Baxter  then  acted  for  tbe  sheriff,  as  sn  asiistint, 
by  parol  agreement,  and  dehveccd  the  warrant 
under  the  seal  of  the  aheriff'a  office:  -that  the 
name  of  John  Evans,  a  bailiff,  was  then  in  it, 
and  non^  ethers,  and  that  it  was  carried  so  to 
Nantwich :  that  Mr.  Elcock  was  at  Nantwich, 
and  there  inserted  the  names  of  John  James 
and  John  Jones.    Now  the  general  qneation  ii, 
Whether  this  warrant  was  good  in  point  of 
law?   In  the  first  pboe,  Tbe  person  grantmg 
the  warrant  most  have  lawful  authority  forss 
doing.    Mr.  Baxter,  on  his  examination,  has 
said,    that  the  night  before  the  sheriff  wai 
sworn,  he  supped  with  him,  and  it  was  thca 
agreed,  he  should  act  for  tbe  sheriff:  thattbs 
sheriff  and  under-sheriff  were  both  presest, 
and  appointed  him,  but  that  it  waa  by  word  «f 
mouth  Mulv.    And  it  fully  appears,  that  Mr. 
Baxter  had  no  authority  from  the  hiffh  sheriff 
in  writing. — An  under-sheriff*  my  lord,  may  k 
admitted  into  his  office  by  parol ;  he  ia  to  ae> 
cute  the  whole  office:  hot  Mr.  Baxter  isoalf 


to  execute  a  particular  part  of  it.  The  i 
sheriff  was  appointeil  by  deed  :  biu  Mr.  Baztff, 
who  did  some  things  for  the  sheriff,  but  did 
not  execute  others,  such  as  attending  the  tt- 
sizes  and  sessions,  waa  appointed  by  parsL  I 
apprehend,  if  a  person  is  to  act  for  the  sheriff 
nnder  a  limited  authority,  that  authority  osflK 
to  be  in  writing ;  end  where  the  sheriff  doe- 
gates  a  part  only  of  his  authority  to  another,  H 
should  be  by  writing  ;  and  therefore,  I  hsBi- 
bly  conceive,  that  the  appointment  of  Mr, 
Baxter  to  act  for  the  sheriff,  was  not  a  goodip* 
pointment,  and  that  his  authority  to  make  oil 
the  warrant  upon  the  writ  for  arresting  the 
prisoner,  was  a  very  defective  authority.— Now, 
whether  the  warrant  was  a  legal  warrant,  or 
not,  is  in  the  next  place  to  be  considered.  M 
that  viiW  depend  upon  a  variety  of  cireua- 
stances ;— upon  the  nature  of  the  instrunMSi 
itself,  and  matters  attending  it.  A  warraatir 
always  under  seal,  and  therefore  is  a  deed>-* 
1  say,  this  warrant  was  a  deed  under  seal< 
and  nothing  binds  the  parties,  but  what  is  coo> 
tained  in  a  deed,  when  executed :  no  interlioes* 
tion,  or  addition  afterwards  made,  can  affect  tbt 
parties  who  had  executed  it,  unless  the  deed  be  is* 
executed ;  and  there  has  been  no  evidence  givcflb 
that  this  deed,  this  warrant,  was  re-execuld. 
Then,  if  this  be  the  case  in  general,  at  the  tiflio 
the  sheriff  sealed  this  warrant,  the  names  of  tbt 
two  bailiffs,  James  and  Jonea,  were  not  in  it 
No  authority  ^as  given  to  any  person,  botio 
Evans  the  bailiff  who  was  then  named  io  lb* 
warrant.— Cites  Hale's  P.  C.  457,  (quoted  be- 
fore by  the  other  counsel.)  Every  iota  of  tbii 
case  IS  parallel,  and  is  agreeable  to  law  ss4 
common  sense.  How  can  this  case  be  distil- 
guished  from  the  general  law  ?  Can  it  by  es^ 
tomf  by. lex  loci  f  It  may.  What  ia  dM 
incumbent  to  be  done,  to  establiah  this  <"  ' 
tkmr    Why,— the  custom myitbni 


869] 

rial,  ivuit  be  uniform,  must  be  certain  ;  and 
there  is  no  evideuce  here  of  such  a  custom. 
Mr.  Baxter  saji,  he  ficimetim^  leaffs  blatkks 
io  lh«  warrants^  and  someliraes  lie  inserts  the 
names  of  the  sp^ecial  bailt^c,  and  that  he  lias 
known  tt  so  dono  for  seven  or  ei^bl-and-tweDty 
^ears.  This  custom  is  iiol  a  custom  immenio* 
rial,  il  is  nol  jiroved  to  have  been  au  immemo- 
riat  cuiitom  ;  neither  is  it  unitbrm,  nor  proved 
io  he  ceitaiu. — Ou  the  contrar}',  it   has  been 

£ruved,  that  the  inierting^  the  names  of  bipedal 
BthtFet^  in  the  warr:intt>  at  the  office,  is  oioie 
usual  than  sending  out  blank  warrnnls.  And 
ilierefore,  supiiosiiig  the  instances  of  custom  (o 
be  of  any  cooaef|ueuc:e,  upon  tlie  tJe  terminal  ion 
of  litis  point,  the  custom  must  make  for  the 
prisoner  at  the  bar,  because  the  puttln|)[  in  the 
names  of  the  haihfTs  at  the  office  has  been 
more  usual  The  general  Jaw  therefore  is  sup- 
pi^rted  ;  the  custom,  or  lex  lori^  not  hv'mg  im- 
memorialj  nor  unitbrm,  but  uncertain.  We 
are  now  to  stand  on  the  general  law  of  the 
land  ;  and  if  the  warrant  fails,  neither  the 
bailitf,  nor  Mr.  El  cock,  nor  any  of  their  assis- 
tants, acted  un'ler  any  lei^al  authority  ;  and 
theretbre  tJ»e  kiHiog  of  Mr,  Elcock  cannot 
amount  t^  more  than  mansbu^hter.  The  au- 
ihority,  my  lord,  which  31  r*  Elcock  Imd,  was 
ffiven  him  by  James  ;  John  Evuns,  the  proper 
&iiiiff,  was  not  there,  hut  James  was  the  actinia 
bailiff,  [f  Jurnes  hid  a  mind  that  Mr«  KIcock 
ahould  have  attempted  the  break inier  opt^n  the 
door,  surely  he  woufd  have  desired  him  to  have 
done  S'S  and  not  bid  him  slay  at  the  door  only. 
The  bailiff  acts  under  a  hmited  authority,  can 
he  then  do  what  be  is  nut  autlioiizcd? — James 
ACted  under  a  limiied  aiithurity  ;  und  whether 
be  had  power  to  call  assistance,  without  au  ap- 
plication to  the  sheriff,  srems  to  me  a  great 
doubt ;  but  1  humbly  ap[irt'henil,that  a  person, 
Io  whom  a  limited  power  is  dclei^otC(f,  cannot 
depute  another  to  execute  any  partof  ihat  liiuiled 
power. — hi  cases  of  lieacous,  a  writ  of  Rescous 
may  he  hud. — Upon  complaint  mude^  that  the 
party  is  rescued,  a  writ  of  Hescout  issues. — In 
eriinina)  case«,  I  allow,  an  oliicercan  call  ano- 
Iber  to  hh  assi!»tance  :  but  this  was  a  civil  case  ; 
tbc  prisoner  was  out  of  si;;^ht ;  it  was  not  a 
cniiiinul  mutter,  nor  an  escape  liom  an  execu- 
tion.  It  Jamts  the  haditf  had  an  authority  to 
breaik  open  ihe  prisuner'^i  huus^,  it  hai>i  not  lieeu 
uroveil  ilut  he  ifave  Mr.  Elcock  thistiuihurity, 
tiut  the  revfcvse.  James  bjd  him  only  stay  ut 
ibe  dr»«>r:  Wr.  Elcuck  hiujseif  sent  Jor,  or  bor* 
rowfd  ihecrow^the  plnintiff' Atkiu  put  it  under 
thi:  ihiiir,  and  Mr.  Ekoik  poised  it  with  an  in- 
tent to  take  tt  oH'  the  bniiTfr'S-  No  particular 
authority  W4is  i^iveu  by  James;  but  Mr.  El - 
cock  ttHfk  the  manȣ(eineiil  upon  himBeU.  It 
vvaa  hiH  busiuess  uuly  to  watch  tite  ifoor.  At- 
kin  put  the  crow  under  the  dour,  and  Mr.  El- 
(X>ck  poiseil  it ;  netiher  of  them  bad  any  or- 
der or  dirt^ctiituK  to  break  open  ihe  house ;  and 
Mr,  Elcock,  hatini;  exceeded  the  timitis  of  the 
authority  (^ivtii  him.  becauve  a  trespasser; 
and  the  unfortunate  kilhiig  of  him,  in  the  com- 
misMou  ol  that   trespHJis,  can  otily  be  mau* 


slati^ter,  and  not  murder. — My  lord,  I  appre- 
hend, that  tipon  an  escape^  nr  Hei^CDUS  from  ail 
arrest  upon  mesne  process,  an  out  tv  a  id  d<ior 
cannot  be  broke  open.  This  was  an  outward 
door :  the  Reacous  was  at  an  end  for  two  hourSp 
anil  there  ou^ht  to  have  been  a  request  to  as- 
sist on  the  Rescous  ;  and  a  request  to  assist  0(t 
a  Rpscous  is  traversable. 

Court,  It  must  be  left  to  the  jury,  whether 
there  was  a  rcqi»est,  or  tiot. 

Mr,  AfaJdocks,  lu  nhort,  if  Mr.  Elcock  was 
a  trespasser^  the  killing  of  him  can  be  only 
mHnslnii^hter*  T  humbly  apprehend,  that 
John  James  had  no  authority  under  the  war- 
rant ibr  the  arresting  the  prisoner:  his  name 
was  not  inserted  in  the  warranty  till  after  it  had 
passed  the  seal  of  ofHce.  He  deleg^ated  only 
a  particular  authority  to  Mr  Elcock. — Mr. 
Elcock  exceeded  that  authority.  Mr.  Etcock 
was  a  trespasser*  The  prisoner  fired  a  ^un» 
which  killed  Mr.  Elcwck  in  the  commission  of 
the  trespaj^s,  when  he  was  breaking  open  the 
prisoner's  door :  and  theretbre  I  hope  your 
lordship  will  he  of  opimon,  that  these  are  points 
so  essentially  in  favour  of  the  prisoner,  that  yon 
will  not  prevent  him  from  havinjf  the  hencfit  of 
the  law  which  may  result  from  a  judicial  de- 
terminalion  of  them^  nor  suffer  the  prisoner'a 
life  to  hv  left  at  the  hazard  of  a  general  verdict. 

Mr.  Juslire  Swinnerton.  Can  you  shew  any 
case  to  the  Court,  where  an  arrest  under  a  blank 
warrant  has  been  superseded  F 

lVJr.it/aJifocA-*,  No,  my  lord,  I  know  of  nt* 
case  at  present. — But  the  Ihin^  spcuks  lor  it- 
self: it  19  not  likely  there  should  be  many 
Ciisies  of  this  kind. 

Mr.  Justice  Suinncrion,  Is  the  doctrtoe  of 
my  lord  Hale  bid  down  in  any  part  of  Haw- 
kms*  Pleas  of  the  Crown  ? 

Mr.  Maddttcks.  1  have  not  looked  over  Mr. 
Hankiu^i  fur  it;  but  if  it  is  omitted  to  be  in- 
serted in  his  Pleas  of  the  Crown,  I  hope*  that 
omiission  cannot  be  considered  to  repeal  or  in- 
validate my  lord  Hale^s  authority. 

Mr,  Justice  While,  This  case  does  not  seem 
to  me  to  come  under  the  doctrine  of  toid  Hale. 
For  here  a  haili^  was  named,  and  inserted  in 
the  warrant,  before  it  was  sealed  ;  and  I  think  tt 
was  a  good  warrant. 

(Court  disiiiifji^uishes  the  warrant  from  a 
deed ;  li>r  a  deeii  muKt  he  delivered,  and  the 
sealing  and  delivenng  nvake  a  decd«) 

Mr.  ^Jatldocki,  The  warrant  was  directed  Io 
the  builirt's,  jointly  and  severally.  The  nauia 
of  John  Evans  was  Lheq,  only  in  the  warrant; 
Johu  Ev»ns  never  acted  in  the  execution  of  it; 
and  therefore  the  warrant  must  be  illegal, 
^u(>a of  James. 

Mr.  Hfl//,  of  Counsel  for  the  Crown.  I 
should  bavcahnost  thouirht  it  unnecff^sury  for 
uie  IO  have  troubled  the  Court  further  on  so 
pl.uu  a  cSMe,  but  that  the  objections  made  to 
\iw  Autlioiity  of  Mr,  Baxter  seem  i(»  require, 
tlitit  j^onu'thioi;  should  be  said,  to  prevent  a  no- 
tion from  prevailing*,  that  he  had  not  a  rij^hi  to 
mik«  out  th«  warniit* — By  tbe  comiDon  Iaw» 


871J 


S2  GEORGE  II. 


Trial  f^Jakn  Steventon, 


\m 


an  niuler-slieriflr  may  be  appointed  by  parbl,  of 
deed  ;  and  teferal  under-ftherifli  for  different 
pur|>oseR. 

Ctmrt.  Shew  your  cases. 

Mr.  Hali  proceeds.  One  sheriff  in  London 
luis  two  under-sheriffs,  two  compters,  two  pri- 
sons: the  bnsinesR  is  carrietl  on  by  different 
persons.— And  there  is  a  sheriff's  office  in  Fur- 
Bivars-lnn,  the  business  of  which  is  executed 
by  a  clerk ;  and  those  persons  are  appointed  by 
parol.  Mr.  Baxter  has  been  appointed  in  the 
•ame  maimer,  and  it  has  been  usual  to  make 
out  blank  warrants  for  a  ffreat  number  of  years. 
Presirription  fur  thirty  yftn  is  (^ood,  unless  the 
contrary  appears ;  and  here  nothing  does  ap- 
pear to  the  contrary.  Mr.  Baxter  swears,  it 
has  been  the  custom  all  his  lime,  which  he. 
limits  to  seven  or  eight-and- twenty  years,  to 
make  out  blank  warrants,  for  the  names  of  the 
special  bailiffs  to  be  inserted.  Mr.  Baxter  did 
make  out  this  warrant  against  the  prisoner,  and 
directed  it  to  John  Evans,  a  bailiff,  and  leA  a 
blank  for  the  attorney  to  insert  two  other 
names;  Mr.  Elcock  did  put  in  those  two 
names,  and  must  be  considered  asclei  k  or  agent 
to  the  sheriff;  and  if  so,  John  James  was  law- 
fully auiltorised  to  arrest  the  prisoner  upon  that 
warrant,  and  did  actually  arrest  the  prisoner, 
who  afterwards  by  violence  rescued  himself 
iironi  the  custody  of  the  bailiff.  The  law,  upon 
8  rescouB,  gives  authority,  for  the  purpose  of 
taking  a  iletiendant,  to  break  open  doors,  and 
justifies  all  persons  aiding  and  assistinf^  the 
officer,  whether  they  be  rniuested  or  not.-—  If 
a  bailiff  lakes  a  man  by  the  hand  out  of  a  win- 
dow, it  is  an  arrest,  and  he  may  justify  the 
breaking  open  of  doors  after  the  defendant,  if 
he  idiould  attempt  to  escape;  and  I  humbly  ap- 
prehend, the  reason  for  breaking  open  the  do<»r 
was  stronger  in  this  case. — Chiles  Peer  Wil- 
liams, tlie  corporation  of  Bewdley,  relating  to 
Venires. — Though  upon  complaint  of  a  res- 
cous,  a  writ  of  rescous  may  be  sued  out ;  yet 
1  appiehend,  that  dDesnot  prevent  taking  other 
remniies,  such  as  breaking  open  doors.  The 
sheriff  may  return  a  rescous  upon  a  mesne  pro- 
cess, hut  cannot  upon  an  execution :  he  must 
rase  a  Posse  Comitntus  ;  hut  that  does  not  hin- 
der him  from  raising  the  Posse  Com itatiis  for  a 
rescous  from  an  arrest  U|mn  a  mesne  process, 
if  bethinks  tit. — It  was  the  duty  of  every  man 
to  aid  anil  assist  John  James  the  bailiff,  to  re- 
take the  pristmer,  after  he  had  rescued  himself 
from  the  hands  of  justice,  hy  the  force  and  vio- 
lence given  in  evidence  by  James ;  and  Mr. 
Elcock  did  what  was  right,  in  endeavouring  to 
supprtNS  the  arrogance  and  outrage  of  the  pri- 
soner, and  to  bring  him  under  a  subjection  to 
those  la\%s,  which  are  too  authoritative  to  be 
trampled  upon,  and  treoted  with  contempt  and 
disoliedieiice.  The  authority  in  lord  Hale, 
cited  hy  the  prisoner'^  counsel,  is  a  very  old 
authority.  My  lord  Hale,  I  admitwaaa  great 
man,  and  I  ptiy  the  highest  regard  to  his  re- 
ports ;  but  I  duu*i  find  this  authority  named  in 
Serjeant  Hawkinses  Pleas  of  the  Crown,  and 
Ihmfore  i  apprehend  iba  serjeaDt  doHbted  it. 


Mr.  Falamer,  also  of  Oooniel  for  the  Crows. 
The  practice  of  the  officer,  a^tingfor  the  nadcr- 
sheriff,  in  granting  blank  warrants,  has  never 
been  complained  of  as  an  irregular  or  unlaw M 
practice,  nor  has  any  arrest  made  upon  ibost 
sort  of  warrants  been  ever  superaened  or  sil 
aside :  such  blank  warrantii  have  alwaya  bees 
held  good,  and  the  acting  under  them  legal; 
and  it  would  be  of  most  dangerous  conaequeass 
to  attempt  to  vitiate  proceedings,  under  vfaick 
justice  baa,  for  time  immemorial,  been  adni* 
nislered  to  the  suitors  of  the  Court.  Cilci 
Uale*s  P.  C.  459. 

Prisoner^  Counsel  That  is  npon  an  cxeca- 
tion. 

Mr.  Havward,  likewise  of  Counsel  lor  Iks 
Crown.    My  loni,  I  humbly  conceive,  tbatlka 
arguments  made  use  of  by  the  prisoneir's  ooas- 
sel,  for  invalidating  the  practice  of  issmf 
blank  warrants,  will   have  liule  weight  widi 
3^our  lordship,  it  having  been  the  usage  iir 
time  immemorial,  for  persons  acting  under tU 
sheriff  of  this  county,  as  Mr.   Baxter  aav 
does,   to    send  out  such  warrants,    and  Ibsl 
practice  was  never  known  to  be  controvertfd! 
and  if  your  lordship  is  satisfied,  that  such  hai 
been  the  allowed  practice,  then  1  humbly  esa* 
tend,  that  the  special  bailiff,  John  James,  hsi 
a  legal  authority  to  arrest  the  prisoner,  by  vur^ 
tue  of  the  warrant  which  he  received  from  Mr. 
Elcock ;  and  that  upon  his  rescuing  himself,  m 
has  been  given  in  evidence,  the  o^cer  bati  • 
right  to  call  assistance,  and  to  break  opeo  dosn 
for    the    purpose    of   re-uking    him.— Gitt 
M'Cullogh's  Case,  9  Coke.— If  a  Capisiia. 
stood  of  a  Distringas  be  executed  bv  an  officer, 
and  the  officer  is  killed,  it  is  murder  ;  surrly 
then,  it  can  be  no  less  a  crime  than  murder,  Is 
kill  an  officer  after  he  has  executed  a  Capias: 
if  then  the  authority  under  which  Jameaactc^ 
was  a  good  authority,  Mr.  Elcock  did  whit 
was  legal,  though  I  heartily  wiah  he  had  icH^ 
with  better  caution.    Cites  Palmer  58.  Uhilrt 
Case.     And  the  killing  Mr.  Elcock,  or  any  « 
the  persons  who  assisted  in  re  taking  the  pri- 
soner, after  he  had  resi-ued  himi^elf,  was  lDa^ 
der.     If  a  sheriff  can  apfiomt  a  deputy  geat- 
rally  by  parol,  I  humbly  a|iprehend  hemaysp* 
poiut  a  person  to  act  in  any  particular  part  if 
the  office  by  parol :    I  see  no  reason  why  bl 
may  not  do  it  in  one  case  as  well  as  in  the  other. 
— As  to  a  warrant  beiog  the  same  thinir  la  tf* 
feet  as  a  dee<i,  with  regard  to  the  execuiioo  d 
it,  as  the  counsel  for  the   prisoner  cttoten^ 
surely  there  is  not  the  least  foundHtioo  for  tkt 
comparison :    a  warraut   is  finly  Keale-.! ;  hsI 
signing,  sclinir,  and  delivering^  are  mces^ 
to  make  a  deeil.     It  has  l>een  ari^ued  by  lb* 
counsel  for  the  pri^oiier  in    his  defence,  tkii 
James,  the  bailiff,  had  no  right  to  call  sffiit* 
ance  for  the  re-taking  the  prisoner,  because,  H 
they  say,  it  was  a  ci%il  case  ;  it  was  not »  onai* 
nal  matter,  nor  an  escape  from  an  execniiM* 
but,  my  lord,   I  humbly  insist,  that  frsnith' 
moment  the  prisoner  had  refused  to  subail  M 
tbenrrssty  mid  had  resound  tuamiftm^ 


S7S] 


fat  Murder. 


officer,  by  tnappini^  m  pistol  at  him,  il  ceaied 
to  lie  a  civil  case  ;  il  liecniQC!  a  criniinul  matter : 
the  pi  ismier  was  a  trans  if  rt*s!i(ir  ami  vkiUier  of 
the  latift  {»t  lii^  rcitiinlr^  ;  h«f  broke  lit^i  tiiujesty  *» 
petre,  and  becariie  a  criiiJiDBl  offVri'ler  ;  and 
tlieif'I'are  ihe  hnili^  had  m  ri|;ht  lo  c«il|  anil 
etery  penioii  ou^ht  tit  ^ive  him,  Hfssi^iHiice 
fbr  a|jj)rehenUi!isf  him  :  hi»  house  r^mameil  no 
looifer  an  asylum f  or  saacmary  for  him :  he 
forfeiteil  llie  sutHy  which  the  Uvr  hftd  ifiven 
liim  ill  I  he  close  retiremeuta  of  hiis  house  before 
he  was  arre&led  :  ills  iluors  could  h«  afiervirardii 
Oa  security  to  liim  from  the  htnda  tvf  jusiice  ; 
and  therefore  his  killing  Mr.  Ekock  in  thepnr- 
suit  of  him  for  the  puifjo&e  of  hringioi^  him  to 
A  due  submi«!iion  and  obedience,  ^as  (1  humbly 
conceive)  murder,  and  uot  man^ldiijB^hter.  The 
life  of  a  man  (says  my  lord  Coke)  is  to  be  fa- 
voured, but  the  life  ot  ihe  law  mure  so.  The 
bw  was  evtablished  for  I  he  security,  defence, 
and  ]uotection  of  every  individoal,  and  is  the  life, 
Mretitrih,  and  support  of  the  commuoilj.  U|ioo 
the  whole,  1  humbly  apprehend^  your  lordship 
will  be  of  opinion,  that  the  points  insisted  upon 
l»y  the  ctnmsel  for  the  prisoner  camioi  entide 
biiu  to  any  indulgence  from  the  Coui  t ;  but, 
oo  the  contrary,  that  you  will  think  them  tuo 
freak  and  tn^ulGeient  to  induce  you  lo  direct  a 
•pecial  viirdict  to  be  found  ;  and  ihat  therefore 
your  lordship  will  now  sum  up  the  eridence  lo 
the  jury,  I  hut  they  may  consider  it,  and  find  a 
^neral  verdict. 

JVI r.  AttQrneif  pn»duces  a  case^  Harris  against 
Ashley,  determined  by  lord  Alans  lie  Id,  the 
sitlinsfs  afii*r  Michaelmas  Term  175tl,  in  the 
&ini>^^a  Bt^nrli,  v«here  a  Hberifl*^ii  clerk  filled  up 
U>e  a.!»!ii^nm€ot  of  a  bud  bond,  and  it  wait  held 
good. 

Mr.Tonnifnd,  for  the  Prisoner  I  humbly 
ctmtcfld.  tliul  the  warrimt,  by  reason  of  Ibe  in- 
•eriini;  ihe  hailiffa  afier  the  sealitig  of  it.  ia  nof 
im  iei^al  warrani \*  and  if  mo,   my  lord  H.de*i 


♦  *nn  the  casf  of  arrests  ujioo  process,  wbe* 
liter  by  writ  or  warrant,  if  ibe  otfieer  uaoifd  in 
the  procesit  |rj\e  notice  of  bi^  aothori^y,  and 
resist  Si  nee  is  inade,  and  Ihe  oBi(!t«r  killfd,  it  will 
be  nmnler  ;  if  in  fitit  tiich  notiliralinn  was  Iroe^ 
and  tt»e  prorpss  le^al :  fiir,  afier  stich  noiice, 
llie  parlies  upposiug  the  arrest  acted  at  their 
own  |ierjt. 

•*  I  siiid  aWfe,  by  way  of  caution,  if  the  pro- 
0CS4  b*>  le;fal :  but  I  would  not  be  tinderstood 
lo  mean  any  tliiui*'  more  than,  Pioviiled  the 
priiCf'^s,  lie  II  by  wrtt  or  warrant,  be  not  defec* 
live  in  tb<>  frame  of  it,  ami  it^sne  in  the  ordinary 
course  of  justice  frnni  a  court  or  ma{*;ratrate 
haiini;  jnriitdiciion  in  the  rai^i'  Thrre  may 
ha?e  been  error  or  irretfularity  in  the  proceed* 
inu,  pr^tiiiu'^  to  tbeisauiOLT  of  tbf  priice««  ;  and 
if  the  ♦iheiiir,  or  other  mmisier  of  justice,  be 
killed  io  the  executiiMj  of  il,  thi«  wilt  lie  murder : 
for  tlie  offieer  to  wlioin  it  is  directed^  must  at 
his  peril  pay  obedience  to  it ;  and  therefore,  if 
aCapi'is  ad  8atii»taciemlum,  Fieri  Facias,  Writ 
«il'  Aiststance,  or  any  other  writ  of  ibe  hk^  kind. 


A.  D.  1759.  [874 

doctrine  is  to  ihe  point,  and  clearly  for  the  pri* 

soner.  The  kind's  countiel  themselvrs  ailmil 
lord  Hale^s  RHpoiiH  to  lie  an  aitilidriiVf  and 
therefore,  I  hoj>e,  the  prtisonef  la  v*Hl  entitled 
lo  tli>'  beoelit  of  ttiis  anlh<irity.  Tboui^h  the 
shenif  may  sippoint  ailcpuiy  by  parol,  uud  that 
deputy  de|»ute  lii«  authorify  (o  a  Ihiid  peraoOf 
yet,  H'tbat  third  |»ersoo  had  not  a  rite^ht  of  ilc* 
putiiij,?,  Mr,  Elcoek  could  not  act  as  m\rent  Of 
clerk  to  (he  ^beritf ;  and  I  homhly  inuisi^  Mr. 
ElciU'k  had  not  a  riehl  In  do  so,  uole^^i  tho 
Klieriff  bicnself  gave  an  aulhuriiy  ^[»piooling 
him.  Mr.  Herjeant  Hawkins^  omiiiin^  to  In* 
sen  my  lord  Hale's  Case  in  his  Pleas  of  the 
Crown,  is  no  reason  lor  it%  not  beiii&^  a  resolu* 
lion  of  as  great  authority  as  any  extant ;  and  il 
wouhl  bo  a  pity*  as  weU  as  cruel,  ihiit  the  pri^ 
soner^s  life  should  be  forfeiteil  tor  thdt  omissmo. 
It  was  an  omission  not  probubly  intended  ;  bo 
miji^bt  have  over-liwked  it,  or  il  mi|rht  havo 
been  letl  out  by  some  other  accident :  no  antho- 
rity  contradicts  it;  and  therefore  1  contend, 
i!»at  it  is  still  an  authority,  in  full  f«»rce  ami 
efl^'Ct,  and  available  to  the  prisoner,  and  noi 
abolished  or  a  fleeted  by  the  custom »  which  tho 
counsel  for  the  crown  have  set  up  in  nppostiimi 
to  it.  Custom,  my  lord,  mu^st  be  supported  bjf 
u^a^e  for  time  immemorial;  cui^tom  must  l»o 
uniform  and  certain,  before  it  becomes  a  law  ; 
this  custom  carries  with  it  none  of  those  qoali^ 
fications*  What  Mr.  Baxter  has  said^  there-* 
forci  cannot  overset  the  rules  of  the  common 
taw.  1  never  knew,  during  all  the  lime  of 
my  own  clerkship,  a  blank  warrant  sent  outf 
without  an  indefunity  by  deed;  and  the  at* 
inrmes  always  sent,  with  the  names  of  tho 
special  baditfi^f  indenmitie*»,  either  by  deed  or 
aiisnmpsit,  on  Ihe  back  of  the  writ :  and  f  * 
humby  insist,  lhat  the  inserting  of  the  naioet 
itf  the  two  bailitf^  in  the  warrant,  whicl% 
James  liad  to  arrest  Ihe  prisoner,  is  d i recti  j 
wuhiii  the  words  and  sense  of  my  lord  Bate'o 
Caset  as  lo  those  ti»o  haihfis. 

Court.     Persons  coming  to  the  assistance  of  * 
the  constable  the  tau  gives  ihe  same  sanctioa 


is^sne,  directed  to  the  sheriflT,  and  he  or  any  of 
his  officeis  be  killed  in  the  expcutioti  of  it*  it  if 
suliicient,  uptvn  :in  indiclurenl  for  this  murdaTp 
to  pnidoce  the  writ  and  n arrant. 

'*  Ont,  tftbe  process  be  dt^tiw-live  in  theframo 
of  it;  an  if  there  be  «  ininuke  in  the  name  or 
addition  of  Ibe  jiprRon  on  »  hum  it  is  to  be  ejce* 
cuted  ;  or  if  the  name  ol  vtich  person,  or  of  tho 
ofBrer,  be  in  iter  ted  withmit  auimtrily,  and  after 
the  ismiintf  of  Ihe  |iroee!JS,  or  the  officer  ex^ 
ceedeth  the  linilis  of  hi^  authority,  and  is  killedp 
tiiia  will  aniount  to  ni»  m^^re  than  manifluuifhter  i 
in  the  per>on  whose  lit>eriy  is  so  invade<t."-^  J 
Foater's  Repines,  p.  311,  312.     Farm,  Ed%L 

Bee,  too.  East's  n.  of  iheCr  c.  5,  §  87,  and 
Leacli^R  Hawkins's  Pleas  of  the  Crown,  bonk  1, 
c.  ^1,  I  6a;  ami  in  ihifl  Collection  the  Caso 
of  lleiition  and  Tranter,  vol.  16,  p.  1,  sod  tho 
Note  to  p.  %  of  Fortcoua,  vol.  17,  p,  ^%^^  a«  " 
of  BroadiW)  voL  18,  p,  1383. 


875] 


89  GEORGE  11. 


to,  ai  to  those  called  by  name.  One  point  oc- 
•iin,  not  yet  spoken  to,  Whether  the  warrant 
may  not  Ims  considered  as  an  escrow.  Suppose 
a  person  gif  es  a  bond  to  another,  sealed  and 
delivered,  with  a  blank  in  it  for  the  sum,  and 
desires  him  to  insert  two  hundred  pounds,  or 
any  sum  in  it,  and  he  to  whom  the  bond  is 
given,  (ills  up  the  bk.nk  accordingly,  it  is 
f^ood.  1  should  be  glad  you  could  produce  one 
instance,  where  a  person  who  has  been  arrested 
■pon  a  blank  warrant,  has  been  discharged. 

Mr.  Justice  White,  No  other  person  was 
concerned  in  the  transaction,  but  the  party 
giving  the  warrant,  and  the  party  executing  it. 
No  instrument  or  writing  is  a  deed,  until  it  is 
delivered ;  but  a  warrant  is  a  warrant  as  soon 
as  it  is  sealed. 

I  fa  Court  see  a  blank  indorsement  on  a  note, 
they  will  afterwards  sufler  it  to  be  filled  up. 
What  a  dangerous  confusion  would  be  created 
in  the  country,  were  the  proceedin&rs  upon  ar- 
rests made  by  blank  warrants  to  be  now  set 
aside?  To  what  a  precarious  situation  would 
the  property  of  the  subject  be  exposed  ?  And 
bow  unsettled  the  distribution  of  justice,  here- 
tofore administered  upon  the  foundation  of  such 
arrests  ?  As  to  the  question,  Whether  the  bai- 
lilTs  authority  to  Mr.  Elcock  was  for  a  parti- 
cular purpose,  or  general — by  the  bailiff's  call- 
ing out  after  Stevenson  to  stay;  they  were 
coming  for  him — I  should  think,  that  Mr.  El- 
cock was  with  the  bailiff  to  give  him  genera] 
assistance.    This  is  matter  of  fact,  not  law. 

Mr.  Towngend  again,  for  the  Prisoner.  I 
hope,  the  points  of  law  that  have  arisen  in  the 
course  of  this  trial,  will  induce  your  lordship  to 
direct  the  jury  to  find  a  special  verdict,  that  the 
prisoner  mhy  have  the  benefit  of  the  law,  and 
that  you  will  not  suffer  a  matter,  which  so 
nearly  endangers  the  prisoner'n  life,  to  be  de- 
termined by  a  jury  :  the  authority  of  lord  Hale 
furnishes  me  with  an  ex(^i*tation,  that  you  will 
grant  this  indulgence  to  the  prisoner. 

Mr.  Justice  Swinnerlon,  I  must,  in  justice 
to  you,  Mr.  Recorder,  and  the  other  counsel 
for  the  prisoner,  say,  that  you  have  dischart^ed 
yourselves,  through  the  course  of  this  trial, 
with  great  decency  and  judgment,  and  have 
done  every  thing  for  the  unhappy  man,  that 
could  possibly  1^  expected  from  gentlemen  at 
tlie  bar.  As  for  my  own  part,  1  have  the  great- 
est inclination  to  mercy,  and  no  person  would 
more  readily  extend  compassion  to  a  proper 
object,  than  I  would :  but,  J  could  wish  that  it 
had  not  been  my  province  to  hear,  and  be  a 
judge  of  so  shocking  and  melancholy  an  event; 
lor  this  being  an  inquisition  for  blood,  to  delay 
the  execution  of  justice,  may  tend  to  overset 
and  destroy  justice.  Ilonever,  if  3?ou,  gentle- 
men at  the  bar,  of  counsel  for  the  prisoner,  will 
ffive  this  Court  your  honour,  that  you  verily 
believe  the  points  of  law,  which  seem  to  have 
arisen  upon  this  trial,  iiill  in  the  end  avail  the 
prisoner,  and  that  you  think  judgment  of 
murder  may  be  arerted  from  him  upon  the  de- 


Trial  of  John  Stevenwnf  [)S7Q 

cision  of  those  points ;  and  that  you  do  Mtnk 
indulgence  for  the  sake  of  delay,  but  fraa  rct- 
sonable  hopes  that  the  priaoner  may  bs  le- 
quitted  of  murder,  when  the  facia  comets  be 
argued ;  1  will  most  readily  consent  to  dinct 
the  jury  to  find  a  special  verdict:  but  if,  on  iW 
other  hand,  you  think  that  the  priaoner  asy 
not  be  availed  by  the  determinatioo  af  U» 
Court  upon  those  points,  1  rely  upon  yourb^ 
nour,  and  hope  you  will  not  request  it. 

Mr.  Toamend.  With  great  submissioo  li 
the  Court,  wc  humbly  apprehend,  that  the  pri- 
soner will  receive  the  utmost  advantage  apn 
the  determination  of  the  facta  to  be  stated:  wi 
have  the  anthoritj^  of  lord  Hale  on  onr  lidE^ 
and  shall  have  time  to  consult  other  suthori* 
ties,  which  may  probably  give  us  further  » 
surances,  that  the  prisoner's  life  in  the  end  w9 
be  saved  by  the  decision  of  those  points.  Brt 
if  we  should  fail,  I  have  no  doubt  upon  me,  hi 
the  conduct  of  myself,  and  of  the  other  oomid 
for  the  prisoner,  will  be  clear  from  erfn  ia- 
putation,  inasmuch  as  we  request  this  ladil- 
gence  under  the  patronage  of  my  lord  Hsh^ 
and  not  to  delay  or  protract  iustice,  bnt  Ibl 
the  prisoner  may  receive  that  benefit  from  the 
law,  which  we  humbly  conceive  he  is  idqiM 
unto;  and  for  these  reasons  only  we  dean^ 
that  the  Court  will  give  the  prisoner  an  oppv> 
tunity  of  having  those  points  argued. 

The  Court  consented. 

Then  the  Facts  were  staled,  and  foondly 
the  Jury  as  follows : 

The  Jurors  find  the  Capias  with  the  isdoi» 
roent  of  indemnity. 

That  the  said  John  Atkin,  plaintiff  in  the«ii 
Capias,  signed  the  indorsement  of  indemnity. 

That  the  sheriffs  of  the  county  of  CbctUr 
have  always  appointed  a  person,  residing  is  thi 
city  of  Chester,  to  receive  writs,  make  wsnui 
thereon,  and  to  return  them. 

That  Mr.  Robert  lUxter,  the  niirht  befM 
Samuel  Harrison,  esq.  sheriff  of  the  said  coos* 
ty  of  Chester,  was  sworn  into  office,  but  iter 
he  had  receiveil  his  ap|K)intiiient  as  sheriff,  «« 
in  company  with  the  said  Samuel  HarriisBi 
then  and  naw  sheriff  of  the  said  couutVi  sb4 
John  Hollins,  gentleman,  under-sheriff  of  Ikl 
said  county  ;  and  the  said  Robert  Baxter  wtf 
then  appointed  for  the  purposes  aforesiid; 
under  which  appointment  the  said  llohert  Bai- 
ter has  acted  ever  since.  That  the  said  sheiif 
was  sworn  into  office  the  day  following  ssch 
ap|iointment :  that  the  said  Robert  Baxter  afttt 
that  time,  and  in  pursuance  of  such 
ment,  did  make  out  a  wan  ant  upon  ti 
Capias,  under  seal  of  the  said  sheriff,  in  the 
following,  that  is  to  say,  [Here  the  warraatii 
to  be  set  forth  in  the  record  of  ibe  Special  Ytf* 
diet.    But, 

Note, — In  setting  forth  the  warrant  is  iki 
Special  Verdict,  the  words  **  John  JanMStVi 
John  Jones,"  are  to  be  omitted.] 

That  the  said  I^dwrt  Baxter 
said  wirranty  so  under  seal  as 


Jot  Murdkf* 

'  then  iiiyenl  lo  Fmncis  Elcork  tinec  i\t* 
Elcnck  w!is  attorney 

i  "U  seated^  wat  si?Dt  lo 
I  Fr,'  L%  lo  NiintT^irli  in  tln-sniil 

(ii  111  4  Itrit  in  llic  sni*)  Harmnt). 

Tbit  ii  has  lieen  I  he  prut  lice,  in  tli€  RheriflTs 
See  of  thr  !ini(i  coiiiiiy  of  Cinfsler,  to  irmnt 
imnis  wiHi  «he  mmc^  of  the  sheitfT's  bailiffs 
^rted^  arxi  t)i«it  blunk^  have  iicen  leH  iherein, 
r  llie  fiuffiose  lit  inserlin{^  the  tmmeae  of 
tdtX  tMiliffs,  to  he  atfiled  to  «ucli  sheriff' n 
rn  batliffW,  to  net  jointly  or  s.eveml]y  ;  unci 
U  it  has  uIno  been  (he  prnclicc  for  ttie  she- 
J  '  to  insert  the  nnmes  of  all  »he  spe- 
t herein,  hvUn^  the  same  halh  been 
■MTirrn  aut  to  the  builitf^,  %*  lien  sudf  name« 
ire  bern  sent  to  the  slRTltf^s  oftice;*  and 
It  ,»  o  .,  .1  vVand«  KIcock  afterwards,  at 
a  ill,  hy  ihe  permission  of  the 
..^  il..„i.i  .:_:aer,  insfrted  jji  ihe  naid  war- 
m,  ID  the  hfank  kft  for  that  p«rjM>se,  fhu 
0Hl«  and  names  (olhuvinir,  to  t^it,  ^*  John 
iiDr»atiil  John  Jones,"  That  the  Wid  war- 
m  waa  liehvefet)  to  Jolm  Jame«,  by  virtue 
hereof  he  theaaid  John  James  a  I  on  ear  rested 
^9ai4  John  SlevenKon.  Tiiat  the  said  John 
i  tier  he  %« HI  so  arretted,  rrarued  him - 
eito  hi«  hoOHp,  and  A\\\i  the  doorH. 
IM  the  «inid  John  James  applied  lo  the  taid 
nncia  Eleock  for  nrin<«  und  ansistance  to 
tike  the  said  John  Hlpvenson  (the  said 
f«9cta  Etcoek  then  \umiy^  ut  an  honse  in  the 
iftiboiifhood).  That  the  said  John  Jarncs, 
tiaid  Francis  Eleock,  and  ieveral  other  per- 
If,  fti  L.^vivrr»r»tfi  to  the  aaid  John  James, 
ide  I  '\\x^  and  vvent  to  the  house  of 

KiV'euaou,  as  soon  as  they  could, 
to  retike  him  the  xaid  John  Steven - 
t  that  John  Evans^  named  in  the  said 
^  tiifver  waa  there,  and  that  all  the 
the  aaid  hotise  were  nhul.  That  the 
n  James,  upon  his  g^oing  to  retake  Ihe 
djohn  hievt^nsion,  and  before  he  the  said 
^  Jamea  |*ot  io  the  said  Julin  HleTcnson's 
saw  the  taid  John  Htevcnson  out  of 
linff  towards  the  &aid  honse  ;  and 
» latd  John  Stefensoii  jjot  into  the 
'  the  Kaid  John  James  called  out 
i  taid  John  Stereiiiion  in  these  ivordSf 
i*c  iv**!!  ^t^y^  for  we  are  coming  for 
•  ti  the  said  John  Jamei,  the 
>':k,  and  olh«frH«  aaasf^i^tantsto 
I  Jauies,  came  up  to  the  said  house, 
I  Jamea  told  the  said  Francis  El- 
take  care  of  two  of  the  doors  of  the 
uiitei  snd  the  aaid  John  Jamea  went 
*  on  il»e  oilier  aide  of  the  same  house, 
«i|{bt  of  the  said  Francis  Eleock « 

wmrrant  he  6 1  led  up  by  the  magit- 

li^iaatie  it    '^        '•   after  behave 

,  iImi  WMmat  I  ind  kilhng  the 

t'***  "'"*-"'  ^iHiii  warrant  u 

r.  hiat.in  Rex¥.  Win- 

T.  i. .^^    ... .,  ...    in  a  note  to  EaatU 


A,  a  175^ 


[878 


\  Thit  the  laid  Francia  Eleock  detnaoded 
entrance,  while  the  f^aid  John  James  wa* 
at  anoUier  door^  oot  of  fight  of  him  the  said 
Francis  Eleock.  Thai  the  aaid  John  Atkins^ 
the  aaid  plaintiff,  was  at  the  same  door  wirh 
the  aaid  Francis  Eleock,  with  an  iron  crow  in 
his  l>and.  That  the  said  crow  was  brought 
there,  topelher  witli  other  anus,  by  tirt:  direc- 
tion of  tlie  said  John  Jurnes.  That  the  said 
Francif!  Ktcock  bid  the  staid  John  Atkin  to  put 
the  said  iron  cr«>tv  under  the  same  door,  to 
break  it  ojien  ;  whereupon  tbe  said  John  Atkin 
put  (he  said  crow  under  the  ^ame  door  for  that 
puipove,  and  endeavoured  to  lift  the  same  door 
off  the  hin|res  \  hut  fiiiliny-,  he  the  said  John 
AtkitJ  then  h  It  the  fsaid  crow  slickiD^  under  the 
name  door,  and  v^cni  towards  another  door  of 
the  same  house,  to  prevent  the  said  John 
Stevenson  escaping,  and  lel\  the  said  Francis 
EIrork  at  the  same  door,  where  ilie  said  iron 
croH-wns.  I'hat  there  were  two  holes  in  the  same 
door,  thronq^h  which  the  said  John8levensoii 
mi^tvl  <;eo  who  was  on  the  out-side  of  the  fame 
door*  That  the  said  John  Stftcnwm  took  % 
\l\\n  from  tlte  mantttf*pit.*e(-'  in  his  aasd  house, 
loatled  with  gun- powder  and  a  bullet,  and  shot 
and  discharered  it,  and  shut  tiie  snid  Francia 
Eleock,  through  the  same  door,  in  the  part 
mentioned  in  ibe  imlictment,  of  which  be  the 
•inid  Francis  Eleock  died,  as  in  the  iaid  in- 
dictment is  mentioned. 

And  if»  upon  the  whole  matter,  the  Court 
shall  tieoropinioi»,  that  the  said  John  8tevensoe 
is  \*n'\\\y  of  uiurder,  the  jury  say,  that  tbe  aaid 
John  fStevcn*«on  is  g^uitly  of  tnurdcr. 

And  if  the  Court  shall  be  of  opinion,  that 
the  said  John  Stevenson  is  guilty  of  mau- 
hlaiitjhler,  the  jury  f»ay>  that  the  said  John 
Htevens^vn  is  guilty  of  manslaughter,  and  not 
guilty  of  murder. 


*^  Thtirsdfty,  August  6,  folbwing,  the  Spe* 
cial  Verilict  was  argued  at  the  asstzps  at  Ches- 
ter, before  the  hon.  Mr,  Justice  Noel,  chief 
justice  of  Chester,*  and  Taylor  White,  esq, 
the  Other  justice,  when  the  Court  took  time  tilt 
the  next  morning  for  delivering  their  opinions  ; 
and  accordingly  on  Friday  morning,  Mr.  Jus- 
tice Noel,  in  an  ingenious  and  pathetic  speech, 
supported  by  adjudi;ed  cases,  and  the  doctrine 
of  the  wisest  sages  of  the  law,  and  also  by  ar* 
guments  of  reason  and  conscieuce,  declareili 
That  the  prisoner's  crime,  found  by  the  special 
venlict,  could  amount  at  most  to  manslaughter 
only.  Whereupon  the  prisoner  was  burnt  in 
the'liaud,  and  discharged  from  the  indictment 
of  murtler.'^  Londou  Magazine,  for  Auguil 
1759. 


At  to  the  law  respecting  homicide  upon  ar- 
rests,  or  attempts  to  arrest,  or  in  detaining  or 
attempts  lo  detain  persona  in  custody ,  see 
Eosi'ii  PI.  Cr.  cIk  5*  aect.  63— 9t* 

*  He  was  also  it  tJie  laaw  time  one  of  tht 
Jut tieet  of  C.  Bf 


82  GEORGE  IL 


III  ttt«  law  or  S '«>tUniK  instifficicnoy  iti  a 
warrant  seems  not  U*  turniBlt  U>  a  pf'rson  who 
resi>it«  the  oHSc<fr  eveculio^,  or  attain i^titiic  ut 
exet^ute  auch  ivarrnnt,  ihat  degree  oC  justtf&v'a^ 
tion  or  rxc'ii*e  which  uoc^fr  »he  liiw  of  England 
b  uffurded  to  liim,  by  iu  jeulmis  atixi«'ty  lor  tlie 
BecurMy  oK  persoDal  fr*?etli>ni,*  And  the  hke 
may  be  itaid  ot  rr8i!itAn(^e  to  au  oflieer  irref^u- 
larly  extfculmi^.  or  attemptini^  to  execute  a 
warront  ia  il«fli"  sutficirnt.  (As  to  thi*,  s€e 
itie  Cape  ol  Rcasoo  and  Tmnter,  toI,  16,  p.  f ,) 

Mr,  Hume,  in  his  Cotnnnenlaries  (I)esrri[i- 
tion  and  Punibhment  of  CrinneR,  cbap.  6,)  aKer 
coDsiderio^j^  generally  what  kinds  and  dej^reea 
of  proviK^ntion  \vi\i  justify ,  excuse,  or  extenunte 
homicide,  proceeds  thus : 

**  Frond  what  has  heeii  said  wilb  regard  to 
the  degree  of  iriijury  which  will  «xiem»nie  the 
g'uiU  of  Klatrghter,  there  rvsutts  au  important, 
but  it  should  seem  an  uojivoitlnble  cousf'ciijenf^e, 
touching  the  construction  of  that  shi lighter, 
which  ia  comniilted  in  reaistance  of  detective 
iwd  irregiUnr  warrants,  or  warrants  esiecuted  in 
an  irregular  way,  A  toessengcr  by  mistake 
arrests  Juhii  tuateod  of  Jatiie^,  or  ou  a  warriint 
agaiuat  John,  he  arrests  that  person  wiio  kimws 
bim  not,  without  saying  who  or  what  be  is ;  or 
he  arrests  John  on  a  warrant  vibieh  Wars  an 
•rrooeous  description  of  him,  or  is  otherwise 
fiot  to  due  form  iil  law.  In  some  of  these  cases 
the  prisoner  goffers  a  degree  uf  prorocation  at 
the  time,  and  it  may  be  said^  that  in  all  al 
them  there  lu  a  wrong  or  treapuss  ou  tbe  purt 
of  the  utBcer,  who  uu|;ht  to  see  tliat  his  warti^nt 
k  good,  and  should  proceed  luw fully  in  tlie 
execution  o(  it.  But  to  hold,  which  siremN  to 
be  the  ruie  in  tiie  neighbouring  kingdom,  thitt 
itia  wicb  u  wrong  as  wit)  excuse  the  parly  thnii 
moleated^  if  on  mention  of  the  mistake,  anil  m 
aome  instances  ctcu  wiiboot  thai  warning,  he 
•traiglitway  kill  the  officer  wUb  a.  luortal  wea- 
pon, and  though  no  persoiml  barm  have  yet 
eoaued  ;-"lUi!t  is  fir  from  being  in  the  dispo^ii- 
tiou  or  analogy  of  the  Ifkvr  ol'  ScotUnd.  V'ery 
■uitttUle  it  may  he  lo  the  rest  of  the  English 
practice,  which  holds  that  a  pull  by  the  none  ur 
A  fillip  ou  the  foreheafi  (mjuries  not  more  ma- 
terial than  a  rude  inrasion  of  a  person's  bberty) 
is  B  provocation  to  extenuate  lire  guilt.  But 
■B  suitahle  an  such  a  rule  ia  to  their  practice,  as 
uusuiiahle  It  would  be  to  ours,  vvbiub  is  quite  a 
stranger  to  aoy  plea  of  exteimuiioD  grouoded 
on  such  trivial  otfeoces,  aod  requires  a  proof  ot 
bodily  distress  and  agitation  ot  spirits  in  tlie 
case  of  assault  by  any  ortlmary  man,  and 
much  more  will  require  it  in  die  case  of  so 
officer  of  the  law,  who  may  indeeil  be  iit  the 
inrrong,  or  fall  into  an  error,  but  has  comoiorily 
some  colour  of  excuse,  und  tipiuion  ot  thity, 
more  or  Jess,  fur  what  be  dotb      Tbnugh  be 

*  For  the  expressiooK  of  Scots  lawyers  con- 
cerning tlie  1/alui'  ot  personal  trt^dom  aud  the 
high  im^Hirtance  of  pruviding  tor  ii,  see  a  Note 
Id  the  lJa«e  of  ^ummcrsett  the  negro,  a.  d. 

mi. 


Trial  of  John  Sievensofif 

do  err,  sill)  he  is  not  (liteHtecl  <>f  hit  eiati 
of  servant  of  the  ta«r,  w  hirli  is  itself  t^att 
regard  ;    as  well  an  in  al^  rai«<-s   whr 
krio^n  to  he  actio/  iu   th»it  vay 
tile,  sciipe^  and  extent  of  hi'«  j'  4ltl 

same  lime  i?videnl  to  the  |i«rly ,  y  t 

phaoce,  which  is  here  »  tmfc  uitfji^ure,  itt  I 
(if  farther  viuleoce  shall  Im:  4t  mior  atas^t 
Not  to  mention  the  more  cf^rtaifi  meacw  uf  i^  *\ 
drevfl  of  tbe    wrong,  an  ft   puuitthmrtrt  trf  tk  J 
offender,  which  the  per^iio  ugg^riev* 
all  cases  of  this  de^cripiiuit.      It    t- 
itead  uf  loihniiitiog  f4»r  the  tifn^,  Uia  au^ 
of  a  well  reguluteti  miod  wouhi  l*e  di^fMi*nl  I 
do,  he  shall  lake  the  adttiuiaij^ci  uf  t 
straightway  to  stall  or  shoot  tli#  otj 
any  great  struggle  has  eti^urd,  or  u> 
harm  of  limly  been  aiuiitkiiiKnl  by  ti4 
in  consistency  with  the  rest  of  c*ur  i-^  .,^ 
not  he  found  tfuilty  of  any  li»i»er  ciime  I 
murder. 

^*  But  the  case  tliat  a  sheri^'g  ofTirer  b^ti 
warrant  against  a  criminal,*  be*  ttfuor 
fallowed  him  beyond  the  hoiirids  of  the  *h^ 
donii  and  havii»g  oierbiken  hiiu,  bax  laid  I 
of  him  by  I  he  collar  of  ih^  c^t^it  to  kerfy  I 
but  tvitliout  striking,  or  oiferiny^  uthrr  tn 
to  his  pertMin.  If  in  this  sittiaitoii  ihe  [ 
draw  a  knife  and  stub  the  ofBcer,  he  caa  i 
ther  be  justified  nor  excused.  Because  i 
bftween  man  and  man,  and  supimsine^oiiefi 
not  to  be  an  oflicer  of  the  taw,  nor  theuitMf^ 
if  Jon,  this  purpose  of  deteiiiioo,  und  t%ri:uif4'i 
so  moderate  a  way,  is  not  a  w  routr  ol  tlial  d 
gree,  which  would  at  all  exteouuif  the  guiill 
sloutrhter.  Aud  surely  if  it  is  uut  more,  1 
case  is  at  least  not  less  fat ourable  to  tbe  o(£ 
on  account  of  these  circumstaaces  tti  tti 
live  Bituatioii  of  the  parlies.  If  a  »»tru,^ 
beating  ensue  on  the  attertipt,  it  will  de 
the  degret;  of  violet  ice,  as  to  other  i 
iher  this  will  bring  dowu  the  charge  to  ( 
homicide.  Or  if  the  officer,  being 
sirtke  tbe  felon  so  as  to  jiut  hint  iti  da 
his  lite ;  still,  to  he  coifipl<*iely  jtlstjfi 
felon  must  oh.^rve  the  *  modermtieti  m 
tuteloc^  III  bis  defence,  for  so  he  must  havsl 
on  ficcasiou  even  of  a  causeless  miuI  tuslicM*| 
quarrel,  fustened  on  him  by  uny  one  of 
people  without  pretence  of  wan  Mot,  or  ii^i*i^ 
of  duty  to  support  him.  On  the  whok 
seems  tu  be  the  highest  equity  «od  ir 
Gonshlering  the  burd  situuuou  ut  au  ofi 
the  law,  to  whom  the  deUct  of  hts 
may  often  be  utterly  im[itiik.^iyf  to  lie  I 
Slid  who  as  often  caooot  judge  cif  the  drik 
and  IS  obh«;eiJ  by  his  duty  tu  procreit  id 
execution  of  it,  aud  \et,  accoMhug  toihesui 
posed  doctrine  ot  tbe  law  of  England,  ma)  f 
killed  v^iih  impunity  by  e  lutfhm  e«|u»U%  i^e 

*  I  conjecture  that  the  ha  rued  com  mi. 

employs  this  vt urd  '  crimmiil*  to  iticluile  a  pet* 
son  Bguinst  whom  a  criminal  i  V  '  .  i  tiers 

brought  *,  under  I  he  law  of  En^  'tr^of 

is  accuuDied  ii  crimtual  uulil  he  ou^t:  i*v<^  ca^ 
victed. 
\  4. 


"] 


JiiT  Murder, 


A.  D.  1750- 


fSSE 


Hi  of  thai  defect  at  the  officer,  ami  who  is 
aciualed  at  Ihe  ttme  hy  malignily^  and 

II  Mt,  Durn^tt  (Ti'«ati!ie  o«  the  Crimmal 
w  ot'ScoUami,  chap,  1,  p»  19.) 

If  the  U\v  of  8cothind  ri,  trt  Ihe  gvtieral 
',  I  low  10  I  isle  u  to  the  ile  fence  of  (ircivoca- 
and  if,  at  lh<*  some  lime,  jealous  of  aby 
iRce  lo  its  ministers  and  nervants,  it  will, 
Mt  cases.  It  SI  en  wilh  extreme  c^aution  in 
of  h«iinictde,  or  resistance  of  the  officers 
tHe  law,  if)  any  defence  founded  on  a  defect 
Ibrir  wurrnnt,  ur  altered  excesa  in  the  e}Ve- 
ol  itt  The  liiw,  while  it  extends  its  pro* 
to  the  Herv mils  nf  jiisiice,  g^ives  ample 
to  tli0)ii>  Hho  may  be  injured  hy  the 
of  thfir  iiiitbunty  \  tut  its  d(S{Mts»tioti  is, 
in,  as  far  m  can  be,  the  assuraption  of 
mmi  ttill  more,  tht»  exercise  of  ?en- 
by  the  tndiirtduali  and  lo  leare  him  to 
ii«  remedy  by  the  operation  of  the  taw ; 
(fitif  it  of  lesi  moment  the  tetnj»orary 
sciiuTetiicnce,  or  even  suH'erintf  of  the  indivi- 
uil,  in  ^\H'\\  casen,  than  the  wbew  of  contempt 
iad  r«^HKtniici!  lo  the  niinixterd  of  justice. 
■LiH^j^'tuii  M'Kcnzte  has  well  expressed  it) 
'ire  only  the  idea,  or  picture  of  jii»iicet  hut 
'rt;rtution  U  its  hfe,  and,  though  those  who 
*bjife  tlie  esccnlion  of  law,  and  ientonces 
*n>ninittied  Mi  iIumo,  \>e  rnnked  hut  amont^st 
*ilif  iui^i^j^i  s*'rT;iiits  of  jusitice,  yei  they  have 
*  tbc  hnppine  s  lo  be  thone  tvho  complete  that 
'^reat  work,  tiud  amon<fit  whose  banda  it  be* 
^  cumes  pertrct ;  uitd,  therethre,  the  law  havinr 
comitiitied  \\n  moHi  ex<clh'Ot  part  to  them,  it 
iboiild  he,  Qijil  in^  in  a  moi»t  eminent  way, 
Careful  of  ihem  ;  and  in  (>rovidin(f  f^r  their 
•ifetyt  arcurrii  its  own  honour.*  In  short,  it 
iBiy,  in  the  general  caRe,  he  laid  down^  as 
*  *  rule  of  the  law  of  SeoiUnd,  ihkt  any  defect 
the  warrant  npnn  which  the  offir^er  acta,  or 
^iljirity  committed  by  him  in  th«  ex«- 
H,  iM  not  that  i)M*cies  of  provocatiao 
T^hirli  \'<ti\\  juMtify  le^iijrunce,  lo  the  effect  of 
ifms;  the  othcerofhiiilife.** 


Ami  aflerwarda  (chap.  1,  p.  66,)  the  saute 
tuihur  Bay  a, 

*'  Another  important  particular,  aa  to  which 
n  praciice  mn}'  l>e  aaid  to  iiffrinl  ito  prere* 
!Oia,  It  the  prrrise  deiiree  of  irrej^ulority  on 
tbf  pitri  f»f  ih»»  oHicer  in  tlie  execti""'*  ^^  J'»s 
"^rrini^  or  10  ihf  wArraxit  it>iflf,  wii  » 

'"    wrttkiMi  hin  |iriv'iteire  or  plea  in  )M  i, 

itk  ih(4  rtrnt  of  hifi  killing'  the  pet <>un  to  whom 
^•^  *v»rr»nl  applies.  We  hu^t  ocraiion,  in  an* 
■f^l^er  |>lj»ce,  to  nay  Hom^'tlnni;  on  lliis  "snhjpct, 
^wirriiiiix  *»^  *^**  p'*''  III  pHtificiilitin»  fooode^l 
*•*  tlie  !ifttT)(*  *  irrnfii'.iunep,  but  uri;ed  by  the 
party  j|.f:,u,,t|  vilntrn  \\\^  ^rarrant  ia  issued,  and 
♦*  or  bis  a«Ti<tlnntti  in  the 
f  .ini ;  nnd  it  tnny  b^'  h*»re 
^  rule  of  hiw  with  ns, 
^^-^e  in  this  parvirul.ir, 
1'*  u>u.  II  Ki^u' I  uirtu  that  of  the  party; 
lai  ttiti»i,u"^h  itna  former  wiU  be  mstitivd  in 


certain  ctie«t  in  Lilhnff  the  pntly  who  re«fsU 
ihr  't-t.*;fiTi  efrn  of  an  irre|i»'uliir  wanunt, 
lh«  I  iM>t  in   the  same  circimistancei 

be  J I  n%  kiliinp  the  otfieer.     As  to  the 

former,  the  rule  laid  down  Ity  Mr,  Hume'dli 
thiit  important  aubject  seem«  t«rbe  the  jual  ooej 
and  the  most  consonant  to  the  principles  of  oiii 
law  :  ^  that  the  officer  aball  Joae  hiti  privileffi 

*  in  the  case  only  of  such  vicei^  which  are  id 

*  the  immediate  frame  and  texinre  of  the  war* 

*  rant,  and  that  he  is  not  atfected  by  those  mow 
^  remote  and  extnuKto,  and  to  him  uiiknowr 
»  and  unsearchable  irregularilic?,  which  havi 
*■  hapjTene<l  in  the  way  of  applyintf  for  I  lit 
»  warrant,  or  in   the  proceedintfs  which  ba?l 

*  been  the  grounds  of  obtaining;  it.'  **^ 

Of  homicide  in  resistance  of  officers  Mr 
Burnett  reports  the  following  Case  : 

•*  In  April  17Q5,  an  act  was  paased  entitled 
'  An  Act  for  enahtin^  the  ma^«tra1e«  in  lh< 

*  aeveral  counties  in  fjreal  Bt  itain  lo  rai^e  ant 
•levy,    under  ceilain    reiJiilations,  ?ucb  abb 

*  bodied   and   idle   persons  as  shntl   h^,  foum 

*  within  the  said  oountiea,  to  servo  in  bt«  ma- 

*  je»ty's  navy  \*  which,  while  it  slricliy  rnjoinet 
and  required  the  justices  of  tire  (leace  and  ma 
trates  in  each  cnunty  to  use  their  utmiM  can 
and  ddigence  that  his  mnjesty^s  etervice  t)c  no 
neg-lectcd,  empoweret)  them  to  issue  out  tbei 
wurrants  from  time  to  time,  imdcr  their  hund^ 
and  seals,  requiring  the  cnnslahles  wilhin  ihei 
several  limits,  and  thuse  who  might  nssi^t  thefn 
lo  make,  *■  or  cause  to  be  made,  a  g-cnert 
*'  aearcli  throu^^bout  their  several  and  respective 

*  limits,  for  all  such  men  aa  they  can  find 
*■  who  are,  or  bhoU  appear  to  them  to  be,  witbit 

*  any  of  the  descriptions  of  this  act ;  and  \i 
'  convey  all  such  pcr^^ons  before  the  juaiicea 
'  or  other  mainstrales  aclintr  to,  or  lor  siuch  di 

*  vision  tir  place,  at  such  time  and  place  ti 

*  aball  hnve  been  prefixed  for  their  next  am 

*  aubscipieut  meetingf ;   and  which   time  am 

*  place  shall  be  expressed  m  the  said  warraoii 
«  reapectivrjy,  ficc.  to  be  examined  ;*  and  t 
found  to  be  wittfrn  the  description  of  the  aot 
to  be  delivered  over  to  the  re|fiilating'-«*ftitt'l 
&c*  The  persona  describetl  n*  Hie  obji-*  u  o 
this  statute  were,    *  all  able  bodied,  idle  am 

*  disorderly  persons,  who  cannot,  ujioo  rxami 
»  nation  ,  prove  ihemiielve*  ir»  cxercl^e  ami  mdi 

*  vidua II y  follow,  some  lawful  trade  or  employ 

*  meni,  or  to  have  aome  aulwisiencc  sufficirn 
'  for  their  support  and  maimainance/  nod  of 

j  JVndentof  a  certain  dearription  ;  and  a  r**medi 

*  Note,  In  Eojjrland  if  the  process  be  auffl 
cient  in  its  frame,  and  Usue  in  the  ordinar 
course  of  juntici'  trnm  a  court  or  person  haviO| 
juriadiction  in  the  rii»e,  no  error  <m  '  nt 

in  the  previous  jirocee^huir,  no  r  v  n 

the  modenf  "     '    i'    "  ^^'  ^*si 

excuse  the  r  •'  '«  the  exe 

tionof  it.     ^  j,  lilted  in  a  not 

lo  the  case  r  ",toI.   15,  p.  T5l 

Aod  East's  I ;  ,  i,.  *.,-  UaWM,  c.  5,  ».  7^,, 
there  referred  to* 


8S3] 


S2  GEORGE  IL 


is  pruuJeil  for  iiny  wtHul  and  malicious  abuse 
of  lliG  powers  given  by  tbe  &tatule.  Id  lerma 
tiflbis  ttct  lUe  magistral***  of  DunalVies  rssueiJ 
a  gtruera)  w&i'raut  to  ibetr  conslables  viid 
b«i"ro«¥  offic<frs,  to  si^aicU  fur,  aud  iipim'heiitl, 
tkU  ptTsuus  ot  the  df'^crtpUoii  aliave  mentioned 
wlui  should  tu:  fouiitl  viiihin  their  jiirisdiclion, 
mid  to  biittg  iht'iii  httbrtr  ihini  for  f^xamiimtioik. 
The  1^  Ml  I  ant,  houever,  tliou&(li  sigfned  by  three 
«if  the  magistrates,  uos  r»ol  healed^  nor  was  ihe 
day  or  tune  fnr  Ihetr  ntxt  meettn&f,  and  for 
the  exaitiinaiioii  ot  the  parlies,  exjii^ssed  in  the 
iviiiraut^  The  executiuo  of  it  wa§  entrusted 
to  three  constabJeg,  ulio  fjad  orders  to  set  off 
in  the  ni'^ht  lime,  taking  with  th*  m»  as  their 
assistanis,  some  buruh-otficers,  and  a  segcant 
and  tv^fiie  men,  Tiion^h  the  i^arrant  ivaji 
l^eoeral  in  ils  ternoSj  it  was  issued  for  the  ex- 
press purpose  oF  appri^hending  the  O'Neilsi 
vrho  were  well  known  to  be  resolute,  and  to 
have  a  purpose  of  resisiiou  the  vtarrant.  f^pe- 
cial  direetions  \^  t  re  therefore  giien  to  the  eon 
Btahles  to  apprehend  their  persoiii,  and  bring 
tbetn  before  the  inairiKtralt  s  for  examination  ; 
their  pMce  of  residence  was  not  within  the 
limits  of  the  town,  strictly  so  ctitled,  Ihou^li 
within  ihejuiisdiclion  of  the  tfiagistr:tie*t.  The 
parly,  on  their  arrival  at  the  liou«e,  knocked  at 
the  do'tr^  and  desired  admittdDCe  iu  the  kiug^s 
name,  uoiif^ing-,  at  ihesatiie  time,  the  object  ot 
their  coming,  and  the  warrant  which  they 
were  possest  of.  'flw  O'NeiU  refused  to  open 
the  door,  and,  widiout  aiikiii^  a  sig'bt  of  the 
warrant,  slit)  k^i  intimating  atiy  particular 
objection  lo  it,  declared  it  as  their  deter- 
^  mined  purpnge,  to  shoot  the  first  person  whn 
should  attempt  to  enter.  This  however,  did 
not  deter  the  constables  from  doing  their 
duty*  They  proceeded  to  force  open  the 
door,  w ben  three  »hois  were  fired  from  wilbiii, 
ithich  fitverety  woundid  two  ot  tlie  soldiers  ; 
one  of  whom  died  of  hts  wounds  a  schorl  time 
Ihereiifler,  John  and  Arthur  O'Neil  (father 
and  M»n]  were  brought  to  trial  fi>r  murder,  and 
fcloulouAly  woundinff  officers  of  the  law  in  the 
execution  of  llieir  duty.  No  objections  were 
stilted  to  the  relevancy  of  the  libel  Besides 
the  circitmstances  already  mentioned,  it  was 
cfearly  proved,  that  days  before,  the  0*Neil8 
bad  noiiee  that  a  warrant  was  to  be  issued 
•gciinst  them  under  Ihe  Comprehending  Act, 
as  idle  and  disorderly  penions ;  that  they  had 
tnade  preparation  of  resistance,  by  purchasing^ 
powder  und  lead  ;  and  expressed  their  deter- 
fulnation  to  oppose,  by  every  mean  a  in  their 
povver,  the  execution  of  any  such  warrant. 
One  witness  swore,  that  the  father  said^  '  he 
*  would  blow  out  the  brains  of  any  officer  who 
'should  atiem|it  to  apprehend  him. ^  It  ap- 
peared also,  that  the  prisoners  had  no  projier 
catlmjT,  or  visible  means  of  Gulnsisteisoe,  and 
Were  otherwise  of  indite  rent  charaeler,  Va- 
lion*  defences  in  law  were  slateil  to  the  jury. 
It  WAS  in  Ihe  first  place  maintuined,  that  Ihe 
prisoners  fell  not  under  the  «lescripliou  of  the 
act,  being  not  idieand  disorderly  persons,  ha?- 
fug  09  sutmSMtsoce  su^cieal  fur  lUeii  iuft^orl  \ 


Trial  of  John  Stevensom.  (Bl 

but  persons,  il  was  said,  emntoyed  ncrtiiiwllj 
to  work  for  their  hvehbu(>d.  Tberefunv  mi 
bein^  within  the  descriptioii  of  ibe  ad,  Ibt 
warrant  was  ille|jrali  or  at  least  its  exemtim, 
when  directed  against  them.  Sdly,  TltattW 
warrant  ha? iiig  been  iwiued  under  a  pAruciilir 
statute,  the  ref[uisites  of  the  act,  as  to  the  lbr« 
of  the  warrant,  must  be  strictly  complied  wnk^ 
but  that  in  this  case,  tlie  warrant  was  am  it 
terms  of  the  statute,  being  neither  Mroihrd  ^ 
the  mng'istrates,  nor  the  dity  for  the  examioaiigi 
of  the  party  expressed  in  it ;  which  kst 
meant  (it  was  saiil)  as  a  humaDe«  and  ol  coim^ 
as  an  iinportant  ri-tp}i>«ite,  in  ttti  dbape  to 
dia[«enseil  with  ;  aud  that  iu  audi  ca$»e  it  iiuiterw 
ed  not  whether  the  ofTtrer  was  ncit  iu  hotUJ^ 
or  the  prisoners  in  the  kaowtrdi^e  at  the 
of  ibe  defects  of  the  warrant ;  w  tvtle  in  lav, 
every  illei;al  act  is  au  act  of  violence,  whicliC 
is  justitiable  tu  resist,  3dly,  1 1  waa  said, 
the  warrant  was  irref^fularly  executed,  tkt 
parly  coming'  iu  the  nii^ht  time ;  that  they  hd 
no  ri||^ht  or  authority  to  break  open  dooni,tal 
that  the  magistrates  could  not  liave  given  Ibe* 
any  such,  under  the  statute.  From  at)  whik 
it  was  maintained,  thai  the  resistance  was  itpi 
and  justiiiablet  and  I  bat  the  prisooera  «i 
not  therefore  guilty  of  murder*. 

**  In  addre^in^  the  jurv,  lord-jiialji 
(M*Qtteen)  after  stating  the  snbaiance 
proofs  observed,  That  the  questiun  was  ul 
imnortance  in  a  public  point  of  view,  inv< 
in  It  the  security  and  protection  of  the  oihctn 
of  the  law  on  the  one  band,  and  of 
dividual  on  the  other;    but  that,  in 
such  cases,  the  law  of  Scotland  leai;^ 
the  same  indulgence  a^  the  law  of  our 
bourin^  country  to  the  plea  nf  justilii 
founded  on  the  irregularity  of  the  warn 
looks  to  Ihe  real  circumstancea  and  sill 
of  the  case  ;   the  sup])osed  ng^greaaioo 
one  baud,  and  the  temper,  purpose,  and 
on  Ihe  other.     That  in  this  case,  the  dcfi 
the  warrant,  supposing  I  hem  ^;reater  lb 
were,  could  not  justify  the  resit«itance  il 
made  :    that  it  was  the  duty  of  the  ofhoefiH 
execute  the  warrant,  any  fault  or  omission  in  Jt 
not  beini;  imputable  to  tbcm,  hut  to  the  to*- 
g^istrate  who  issued  il ;    and  it  was  ih.-  f^i>t»  d 
the  prisoners  lo  \ifld  obedience  in 
time,  and  to  seek  their  redress  aut)   . 
maj^ea,  as  the  statute  had  directed,  if  the  pr^ 
ceediugs  were  iliegral ; — at  all  events  not  to  it-^ 
tist  in  the  manner  they  did  ;    whUe  it  would  ^ 
of  highly  dangerous  example,    if  every  oot 
against  whom  an  irregular  warrant  was  ikuedi 
wan  to  be  the judi(e  and  aven(>er  of  bis  wriMtgi 
and  the  officer,  ij^'-norant  perhajia  of  ihe  deffc^ 
and  attbc^amc  time  incompetent,  in  moctoaaaii 
to  judge  of  it,  to  le  made  the  victim  oa  lbs 
occasion.     That  such  a  plea  is  in  a  parttculif 
manner  excluded  from  ihia  case,  ^- '    ■  id- 

milted  that  lK)th  the  officers  aiiil  '^ert 

completely  ignorant  at  the  time  ■-.,  ...v  .,.:«:« 
of  the  warrant,  and  when  at  the  isame  ttmtti 
the  defects  were  not  t»uch,  as  if  known,  sod 
the  ofitcers  evcu  apprii^  of  tbemi  ou^'bl » 


S] 


Trial  nfEarl  Ferreru 


A.  D*  1760. 


[SS6 


have  deterre4l  tbem  frotn  puttiog*  it  In  erecu- 
.  tion,  they  were  at  best  tJoubU'ul,  and  Aticlt  as 
llaeither  llie  prisoners  nor  officei's  were  Mie  com* 
i  ttteteot  judges  of.     Tliat  Ihe  sealtng-  is  a  mere 

Eiifrlish  fonn,  and  applicable  to  Eui^ltsh  war- 

ITaotJi ,  but  wiien  the  act  comes  to  bare  exe- 
cution here,  it  must  be  j^iven  effect  to,  *  secun- 
dum  leges  et  con  suet  mlinefi  8eotfie/  and  these 
require  uoihiog  more  than  ibe  suhscription  of 
tbe  ma^^Htrale.  That  leoviu^  tbe  day  of  exft* 
m  in  at  ion  lilaukf  was  perhaps  not  Ntrir.tly  re- 
ffurar,  but  in  ibe  circuiostances  of  the  case,  it 
IS  plaiu  thai  Ibe  prisoners  were  meant  to  be 
iM'Oii^tit  immeiiiBlely,  or  next  mornmgi  before 
the  tiia^islrate  ;  and  so  they  must  have  imder- 
atotid,  bad  they  knowu  of  the  defei^L  A.-i  lo  tlie 
^warrant  allowing'  no  pertion  to  break  open  doorSi 
llie  troth  is»  that  all  warrants  under  this  act, 
lilDply  a  power  to  break  open,  bejng  granted 
*«gainfil  1 1  IS  orderly  and  irregular  per.>voaK  ;  and 
so,  ns  will  be  found,  it  has  heeu  understood  in 
.practice.  Lastly,  as  In  the  ctetence  of  the  pri- 
nsouers  not  (atlinL^  unilfr  the  dt^gcription  of  those 
'being'  bable  to  be  comprehended,  the  officers 
certainly  were  not  to  he  accountable  for  thiii 
error,  or  resi^^ied  to  the  death  on  that  account ; 
ifliat  they  hiid  no  power  or  right  tojucfire  of  the 
com^H'tency  of  the  warrant.  Besides,  tt  was 
tio  irregnlnrity  of  ttkeirs,  hut  of  the  mapstrateii 
Mr  ho  issueit  it,  and  antple  redress  lay  against 
em  if  the  warrant  was  illegal.  In  the  case 
^  a  Bted.   Fugue   warrant,  obtained   without 


the  oath  of  the  purly  who  applies  for  it ;  or  of 
a  waarant  granted  to  apprehend  a  criminal,  hut 
without  a  signed  information  us  ihe  Act  17Q1* 
requires,  would  Ihe  person,  against  whom  the 
warrant  is  issued,  be  entitled,  on  the  t; round 
of  tbeae  defects,  to  kill  the  officer  sent  to  ap- 
prehend him  ;  or  even  Ihe  officer  he  jtistitiuhle 
10  not  executing  the  wnrratit,  on  the  statement 
of  its  defects  by  the  parly  himnelf?  He  cer- 
tainty would  not:  the  la^v  of  Scotland  knows 
of  no  ri^lit  in  a  private  periion,  *  jus  sibi  dicete  ;* 
least  of  all  to  take  veoi^eance  lu  this  form, 
against  an  innocent  servant  of  itie  law.  flig 
lord&hip  concluded^  by  his  stating,  ex|dicitly  to 
the  jury,  that  in  Iiih  opinion  there  occurred  ia 
this  case,  almost  every  thing,  thai^  hy  the  law 
of  Scotland,  is  held  to  constitute  nmrder ;  de- 
iiberation,  malice,  and  a  purpose  to  kdl,  with- 
out any  thiug  which  could  amtiunt  to  provoita* 
lion  or  sell  defem^e.  He  uddeil,  hoiAever,  that 
under  all  the  circuntvstances  of  the  case,  he 
ihonght  the  father  more  culpable  of  the  two. 
The  jury  found  the  father  guilty,  and  ac- 
quitted the  son*  The  former  received  sentence 
uf  deaths  hut  ohtaineit  tirsta  reprieve  and  titler- 
wards  a  free  pardon,'*  Treatise  on  Crim.  Lav 
of  Scotland,  pp.  Ut|  tt  kcq, 

*  Concerning  this  *•*  Act  against  Wrongous 
Imprisonment^'*  i!Scc.  see  a  Note  to  the  Case  of 
Siimmerseit  the  negro,  a.  n,  1722. 


Jf38.  The  Trial  of  Lawrenck  Earl  Ferrers,    for  die  Murder  of 
John  Johnson  :  Before  the  Right  Honourable  the  House  of 
Peers,  in  Westminster-Hall,  in  full  Parliament,  on  Wednes- 
day the   Ifithj  Thursday  the  17th,  and  Friday  the  18th  of 
April:  33  George  H.  a.  d.   1760. 

The  yeoman  usher  of  the  house. 

Then  Ihe  peers,  two  and  two,  beginning  wttb 
the  voun4r^t  haroo. 

Tl)en  lour  Serjeants  at  arras  with  their 
ID  aces,  tvvo  and  two. 

The  Serjeant  at  arms  attending^  the  great 
seal»  and  purse-bearer. 

Then  CJarter  kin^at  arms,  and  iheg-enlleman 
osher  of  the  hbck  rod,  carrying  Ihe  white  slaif 
beibre  the  lord  liigh  atewnrd* 

Hubert  lord  Henley,  lord  keeper  of  the  gr*at 
seal  of  Great  liritoin,  Lord  High  Steward, 
alonf  ;    his  train  borne, 

W  ben  the  Lords  were  placed  in  iheir  proper 
seRts,  and  the  Lord  iligh  8te^vard  upon  th<t 
wool  pack  ; 

The  ehikof  tbccroww  in  Cbonccrv,  haiingf 
bis  majt-t^iy^s  Commisiiinn  to  the  lord  hi^.'^U 
steward  in  his  hand,  and  the  clerk  of  the  crov^ti 
in  the  King^s-bench,  Btandinu^  Uetbre  the  clerk'a 
table  with  their  faces  towards  the  state,  nyade 
three  reverences  \  the  firHt  at  Ihe  table,  the 
\  second  in  the  mUlwa^  ^  wjA  vW  >\\vc^  \i»w  ^ 


Wtdnetday^  April  16^  1760* 

In  tlie  Court  erected  in  Westminster- Hall,  for 
the  Trial  of  La  v%  re  nee  Earl  Ferrers,  for 
the  Murder  of  John  Johnson, 

IABQUT  eleven  of  the  €lock  the  Lords  came 
^frcim  their  own  house  into  ihe  court  erected 
*in  Westminster  Ball,  for  the  Trial  of  Lawrence 
.|«arl  Ferrt- rs,  in  the  manner  following: 
III  The  lord  hii(h  steward'a  gentlemea  attend- 
^mnls,  two  and  iwo. 

The  clerks  assietant  to  the  House  of  Lords, 
sod  the  clerk  of  the  purliamenl. 

Clerk  of  the  crown  in  Cbuncery,  bearing 
fthe  king^s  commi«ttion  to  the  lord  high  «iteward  ; 
tK&d  the  clerk  cif  the  crown  in  the  Kiog's-bench. 

The  toaiiters  in  chancery,  iwo  and  two. 
,      Thejudges^  two  and  Iwo, 
I     The  peers  eldest  sons^  two  and  two* 
I     Peers  minOf>4,  Iwo  and  two, 
I      York  and  Windsor  heralds, 
I     Four  Serjeants  at  arma  with  their  maceSj 
^two  and  two. 


8&7]  33<5EORGE  IL 

vool|iack;  tbeii  kneeled  down;  and  the  clerk 
of  the  crovfa  in  Chaocery,  on  his  kne^,  jire- 
Dtiut*  d  ilieComaii^^^iontotbeLord  Hi^hStewjirdf 
fditi  delivered  ihc  iume  lo  liie  clerk  i>f  the 
crown  in  the  King'*s-bcnch  to  read:  theo 
Tisiiig^,  they  mm  It?  three  rerereoces,  aod  return- 
ed lo  llie^  table.*  And  then  pruclamutioD  was 
tuade  fur  sileDce,  in  ihisi  uiaimer  : 

Serjeant  at  Armit.  Oyez,  oyez,  ojez  !  Our 
iOtereijL^n  loni  the  kiuj;^  strictly  changes  and 
eommands  ull  nnanner  of  persons  to  keep  si- 
lence, upon  pain  of  imprisuninent* 

Tht^u  the  Lord  High  Steivurd  stood  up,  and 
•poke  io  the  peer$. 

Lard  HigK  Stctcard.     11  is  majesty's  Cora- 

intssion  is  about  to  be  read  :  your  lonlships  are 
desire*1  to  attenit  to  h  in  the  uRiial  manner; 
Abd  all  others  are  likewise  to  stund  ujf,  un- 
*  coveredt  nhde  the  Commissiun  is  rendiug'* 
Ail  the  peers  uncot'ered  tliettiselres ;  and 
tliey,  and  all  others,  fstood  up  uncoferedi  while 
the  CotnmtaisioQ  was  read* 

•*  CtOllGE  R. 

*<  Gei^rjife  the  second,  by  the  grace  of  God,  of 
Great  Britsiin,  Fiance,  and  Ireland,  king-,  de- 
femler  «if  the  faiih,  doil  so  tbrth-  To  our  rit;ht 
Iruity  and  uell-bttoved  couuseUor  Itubert  lord 
Henley,  barun  of  Graiii^jfe,  in  our  county  ol 
Souttiiimpu^n,  kt'eppr  of  our  great  seal  of  Great 
Briluiti,  ijreetiiig',  Kuow  ye,  That  whereas 
Lawrence  eaYl  Ferrers,  viscount  Taniworth,. 
h^ie  of  the  parish  ut  Bri*edon,  m  our  eounty  of 
Leiresler  (Wfore  our  Justices^  a»ti^ncd  by  our 
letters  patent  under  our  g^reat  seal  of  Great 
lliitatn,  to  enquire  more  fully  llie  irulh,  by 
the  oath  of  g^iKtd  anil  lawful  men  of  our  said 
county  of  Ijeice«»ter,  and  hy  other  wa^s, 
ineiios,  and  methods,  by  which  tlitry  should 
and  might  betier  know  (as  well  within  liberties 
*s  wiihoul^,  by  whom  the  truth  of  the  matter 
may  b&  the  heiter  known  and  eu(|uirfd  into,  of 
all  treasons,  rattiprisioos  of  treasons,  instirrec- 
ttoD9»  rebellious,  counterfeitini^'s,  cltppinjirH^ 
Hf  aNhings,  fabe  coiuinir  j,  auti  otiier  falsities  of 
Ibe  inouey  ofGieai  Britain,  and  of  other  king- 
doms or  dominions  wbaisoever,  and  of  all  mur- 
ders, felonies,  mtinslautrhtera,  killings,  burgla- 
ries, rajie*  of  women,  unlawful  meelinars  and 
conventicles,  unb^vful  utterin^f  of  words,  as- 
semblies, misprisions,  conf«;deracies,  talse  atle- 
g£it4uns,  trespasses,  riots,  routs,  retent^ions,  es- 
capes, C(»nleinpt8,  falsities,  ne^^  I  {(fences,  con- 
cenln[]ents,  niuinlenauces,  oppressions,  charn- 
parlics,  deceits,  and  all  other  etil  doings,  of- 
Icnces,  and  iiijories  whatsoever,  and  also  of  the 
necessaries  uf  Ihem,  within  the  county  of 
Leicester  aforesaid  (as  well  within  liberties  as 
without),  by  whomsoever  and  in  what  manner 
soever  done,  committe^l,  or  perpetrated,  and  hy 
^honi,orto  whom,  when,  how,  and  after  v*hal 
manner  ;  and  id"  all  other  articles  and  circum- 
ftances  concerning  the  premises,  and  every  or 

•  See  Gregory  Kiug^s  Ceremonial,  ¥ol.  15, 
p.  (i06f  0f  Uii«   Collection. 


fTrial  of  Earl  Ftrrert^ 


t« 


any  of  them,  in  any  manner  irbatMever^  ud 
the  said  treasons,  and  oiber  the  preuiMi,  k» 
cording  to  the  laws  sod  cu4iton»ii  tif  £4i4(liiad,  14 
(hear  and  deiermine,)  stands  indicted,  b|  Um  | 
oath  of  good  and  lawful  meo  of  our  siatd  laMialy 
of  Leicester,  of  felony  and  iniirder,  by  bim  Hi  I 
said  Lawrence  earl  l*Wreni  %  ii^cuuni  Tamvoitb  I 
done  and  cooiniitted :  We,  coiii»ideria^  that^n^-J 
lice  is  an  excellent  virtue,     ■   '      '    v^mgi 
Most  Elijah;    and  beini^    ^  ut  lb 

La  It  r  en  ce  ear!  Ferrers  %1!»c<'>j.'l   •  »fo« 
and  for  the  felony  and  murder  whereof  hci] 
indicted  as  aforesaid,  bi^fore  us*  in  our  ; 
parliament,  accordiu|r  to  the  law  1 
our  kintfdom  of  Great  Britain,    mav   lie  I 
examined,  sentenced,  and  ;  attdt 

all  other  tilings  which  arc  1  i»n  1 

casion  may  he  duly  \  !  execuud;! 

and  far  that  the  office  i        ^  ^  rvi  uf  Gn 

Britain  (whose  presence,  u^^mu  tiu» 
reiptired)  is  now  vacant  (a^  we  are  \nk 
we,  very  much  ccKifiding  in  your  6d 
prudence,  provident  circuttis(ieciioo,  and  ia^| 
dustry,  have,  for  this  caii^e,  onUined  and  < 
stitiited  you  Steward  of  Great  Hniaiif,  10  I 
expcute,  aod  exercise  (for  tbi*  iioie)  ibei 
office,  with  all  things  due  and  l)elon|(iiag^fotl 
same  office  in  this  behalf:  atid  therefore  1 
cou^naod  you,  thatyou  dili^^ently  set  about  tkl 
premises,  and  (for  this  time)  <to  rxerci*e,  nil 
execute  with  effect,  alt  lhu«e  lliinga  wbiebWl 
liiii^  to  the  office  of  Steward  of  C«reai  Britii^l 
aud  i»hich  are  required  in  this  behalf.  In  1 
witness  vtbcieaf,  we  have  caused  tUi«a  asl 
letters  to  be  mude  potent.  >\  itii^&s  oiir»<ilftf1 
Westminster,  the  sixieentb  day  of  Aprd,  iaili| 
thirty-thiid  year  of  our  reign.  •J 

^*  By  the  kiog  himseJf,  sijened  wiUi  hisfnl 
hand,  Yorke  and  Voiui^* 

Serjeant  at  Arms,    God  save  the  king ! 

Then  Garter,  and  the  |renlletimn  nsheraftlt| 
Black  Hod,  after  three  reverences,  kneehif  I 
jointly  presented  the  white  staff  lo  hit 
the  Lnrd  Hit: h  Steward  :  and  then  bis  j 
attended  by  Garter,  Black  Rod,  and  the  I 
Bearer  (making  his  propi-r  reverences  toil 
ibe  throne),  reiuoved  from  llie  wuolpack,  in  1 
armed  chair,  which  was  placed  uu  th*^  u^tj^er-l 
most  step  but  one  of  tlie  tbrooe^  as  ii  wat  fiit-I 
pa  re  1 1  lor  ihtii  purpose,  and  then  spates  1  hioi^l 
in  the  chair,  and  dt^ttvered  the  statf  tt»  thegte*! 
tleman  usher  of  thi*  Black  Rod  on  \im  ngiMI 
band,  the  Purse  Bearer  bcitdiDir  ibe  purae  «al 
the  left.  ■ 


CL  of  the  Cr. 
clamatiou. 


Serjeant  al  artna,  make  p^  I 


Strj,  at  Armtn     Oye»,  oyex,    oye«  t   9m\ 

soveieisfo  lord    the  kiog^  strictly  ctiarfreaJ 
commands  all   m.inner  of  pt;rsons  to  ke 
lence,  upon  pain  of  imprisonmeaL 

Then  (he  Clerk  of  the  Crown,  h^  dii 
the  Lord  Hii;h  fcileward,  read  the  Cenionfj 
the  Return  tuereot;  t4)gether  wiib  the  t  at** 
the  IntlictineDt,  and  the  Indictciitirt  cciiii^ 


"Jor  Murder* 

upon,  agunit  Ijivrreuce  earl  Ferrers  %  in  I 

rba  t 

The  CtHTiORAni  inil  Heturn. 
tenrjje  the  secoml,  l»y  lhei(race  of  Gml,  f»f 
Ilriiain,  Fniiice,  attil  Ireland,  kin^,  de- 
of  tbe  f4}lli|  and  so  forth,  lo  ourjitshces, 
ird  by  our  leiiers  pnU'iii  under  iiiir  ^reil 
r  Great  Britain,  to  enquire  mo«?  fully  ilic 
by  the  oaLh  of  i^ood  liiid  lawful  men  of 
)uoly  of  Iieicestvr,  and  by  other  wHys, 
I,  and  nietUoils,  by  which  they  sb'uild  and 
I  better  knctw  (as  well  wtUiin  lihenies  ii?i 
MU),  by  whom  Ibetrulh  of  ihe  mallerjURV 
t  belter  known  and  enquired  into,  (It  all 
miKi»ri!>utiis  of  irewMia*,  insurrecli<uiSj 
coantt!rfeitmgs,  clippui^s,  wjinhiiiifs, 
rtlfs,  and  olhtr  fjiisiiies  of  ihe  money 
trilain,  and  of  oilier  kingdoms  or  do- 
njfDmni  wlialMoevi-r,  and  of  all  murders,  felo- 
utei«  miin»buybters»  killinijs,  biirgluries,  rapes 
c»f  wuuien,  unlawful  ni^etinji^H  and  conteolicles, 

priiicMis,  confederacies,  ftiUe  allegaiioDS,  tres- 
riola»   routs,  relentioni»  escape^*,  con- 
»t»,  falsitie?,    tie(j[ligences,   conceal mentSf 
lleuances,  o|»|)re8itons,    champarties,  de- 
ll all  other  evil  doingR,  ot^'euceii  and 
rUaL»oe«er«  and  also  of  ibe  acceiitarie<i 
|vritbin  ibc  county  aforesaid  (as  well 
lertiea   as  without),  by   whomsoever 
ittt  maimer  soever  done,  commitleil, 
rated,  and  by  whom,  or  to  whom, 
iw,  oud  after  \\  bat  manner  ;  and  of  all 
articU*^  oud  circumstances  concerning  the 
liiei,  aud  etery  or  any  of  them,  in  any 
trr  vi  hut^ever,  and  the  said  treasons,  and 
the  joeutises,  according  to  ibe  laws  and 
ma  of  EngUnd,  to  hear  and  determine, 
lo  eicry  of  thein,   tjreeting  i    VVe,  beiu|f 
in^f,  fur  certain  te»u<ons,tbat  all  aadsinj^ular 
cUitents  and  iiiqtii&iiioDS  of  what50e?er  fe- 
i  mm\    murders  wliereuf  Lawrence    earl 
*rs  viscount  Tiimworlh,  late  of  the  pariali 
Ireedoti,  in  the  county  of  Leice<*ler,  is  in- 
befure  you  (hh  ts  said),  be  determined 
re  u!i»  and  u^a  elsewhere,   do  command 
yau,  %%%%{  rtery  of  you,   that  you,  or  one  cif 
,1..  vMii.j.   under  yiur  seals,  or  the   seal  of 
i>efore  tH,  in  our  preheot  ocirlia- 
1  itely  after  the  reeeipt  nf  tiiis  our 
all  tod  sinfi^ular  the  indicnmeots  and  in* 
'ins  jiftir^saul.   with  all  thini(s  tourUinif 
by  wliainocvcr  name  ilie  said  Law- 
«art     l^'errfrs    visrotiot    Tatnwortti    ia 
'd  in  the  m\m^,  toy^nher  with  tbi!>  wni,  that 
nav  tort  her  c^iuse  tn  be  d«>ne  thereon  what 
idiotf  to  Ihe  law  and  cuatom 
ImII  si'e  fit  til  be  done.     Wit 
1 1  Ml  I  :n  t^>f;imMJ9ier,  the    IHih  day  of 
:b,  m  the  33rd  yeur  id  our  rciifu. 

•*  YotiKti  and  YouKB.'* 
To  tbe  jnsticM  aasiifneil  t<»  enquire  <tf  all 
~  m»,    mw   '    -      \c.    commini'd     within 
county  *» I  r,  a  writ  of  Crrtinrari, 

fertify  utttt  iiir   ti(>i»er  house  of  |mrhMneiit 
hiihctia«nt  founJ    before    thcui   aguiiut 


A.  D.  1760-  [B90 

Lawrence  earl  Ferrers  for  murder,  returnable 
immediately,  btfore  tbe  king  tn  iiarlitiment. 
*'  Yoaicx  and  Vorice.'* 

Retcbn, 
"  By  order  of  the  Lord^  dmritual  atid  temporal, 
in    pari  lament    assembled,    by   virtue  of  the 
witblti  writ  lo  me,  and  others,' diretteil,  1  send 
to  our  sovereign  lord  the  king,  in  this  present 
parliament,  under  my  seal,  the  iudicimeut  and 
inquisition  within  mentioned,   with  all   ihinga 
touchtog  tbe  sam^i  to  certain  st^ht^didra  here* 
uuto  annexed,  as  l^aoa  within  commanded. 
•*  H.  Bathumst." 
"  Leketterthire*  Be  it  remembered,  That  at 
tbe  general  session  of  our  lord  the  kin^f,  of 
Oyer  and  Terminer,  holdeu  for  the  county  of 
I>eicester,  at  the  castle  of  Leiceiiter,  in  and  for 
the  same  county,  on  Friday  tbe  fourteenth  day 
of  March,  in  the  thirty-third  year  of  the  rei^n 
of  our  sovereign  lord  George  ihe  bccond,   now 
kin^j^  of  Great  Britain,  and   so   forth,  More 
Henry  Bathurst,  esq.  one  of  the  justices  of  our 
said   lord   the  king,   of  his  court  of  Comnian 
Bench ;    James  ilewitt,  esq.  one  of  the  Ser- 
jeants at  law  of  our  anid  lord  the  king,   an4 
others  tbeir  fellows,  instiecH  uf  our  said  lord  thtt 
king,  assigned  by  letters   patent  of  our  saul 
lord  the  king,  under  lus  great  seal  of  Gre^ 
Britain,   to   them  aud  oiher»,  ami  an v  two  of 
more  of  ihera  made,  of  wbum  our  saiJ  lord  tba 
king   would    ba%e    ibe  said  Henry  Bathurst| 
esq  and  James  Hewitt,  esq,  to  be  one,  to  en- 
quuc  moiefuily  the  truth,  hy  the  oath  »»f  good 
and  lawful  men  of  the  county  albresaid,  an4 
by  all  other  ways,  meao«»,  aud  methods,  by 
w'^bich  they  should  or  might  better  know  (at 
well   within  liberties  as  without)  hy  whom  tbt 
tniih  of  the  matter  may  be  ihe  iM^iter  known 
anil  enquired  into,  of  all  treaw»ns,  loispnsions  of 
irfssous,    insurrections,     rehelliona,    counter- 
feiting*, clippmgs,    WHsbiniis,    false  eomiiig«» 
ami  other  tiihiues  of  the  monies  of  Greui  bri. 
tain,  and  of  othir    kingdoms    or   doiuiuiuoi 
wbaUnever;     and   of  all    iinirders,    telonies, 
ruansUugbiers,  killinga,   burgluries,   rape%  of  ] 
women,   unlawful  mei^tings  aud  couveniiclc9« 
unlaivlul  uttering  of  uords,  asA^mblies,   mis-* 
prisions,  eonfede nicies.,  fiilse  allegafioujs,  trea*  | 
passes,   riots,  routs,  rfientums,  e-capes,  con* 
tempts,    talsities,   n«-gljgences    coMcei>tmciil«| 
niainti  nances,    oppressions,    cliamparties,   de»  , 
celts,  und  all  oilier  evihhongs,  oftVuces^imd  ai* 
juries  wbaliio«'*er,  and  also  ot  tlie  accesaariei  I 
of  them,   wiihiii  ibe  eoiioiy  atoressid  (as  wd|| 
nitbin   bbi'fiies  as  wiihout)  hy   wbom»oever#l 
ntid  in  what  manner  *M;efer,  done,  comuoitedf  I 
or  perpetiiiieil.  ^iid  by    whom,   <»r   l*>  whoin^l 
when*  bow,  und  aft^r  uhai  maiioer ;  and  of  alii 
other  articles  and  tia'umsUmt.'es  coiiceining  tli#| 
premise*,   *i»id  rvtry  or  any  o!   ilunu,  in  any  J 
manner   ohnKuevtr';    and   the   *«Atd   tr4<a*<«>iii«| 
and  oihirihe  ptemi*<-«»  accord  in  j;  to  the  lawfl 
anil  t"U*toui»<  *>t  Kugliud,  forihi*  uu»e,  lo  hca8| 
iii.fl  drteruiinc.  by  the  oath  ot  Joho  Grey,  Johq 
ratmer,  Tbnmas  Boolhby  the  ilder,   Uitlinol 
l^ocbiu,  Naiban  VVrigUte,  Chailetk  «5kt^TOaV\«t 

I 


S»I] 


SS  GEORGE  n. 


Trial  of  Earl  Ferrertf 


\m 


Boothby,  Thomas  Boothby  the  yoanger,  Jo- 
seph  Craddock,  Edward  Farnbam,  Kofjfera 
Rudding,  Charles  Morris,  esqrs.  ;  John 
Smaliey,  Richard  Walker,  John  Willows, 
James  Silmey,  Thomas  Ajrre,  Gabriel  Newton, 
mnd  Robert  Hames,  gentlemen  ;  good  and 
lawful  men  of  the  countv  aforesaid,  then  and 
there  sworn,  and  charged  to  enquire  for  our  said 
lord  the  king  for  the  wtdy  of  the  same  county. 
**  It  is  presented,  that  the  bill  of  indictment 
hereunto  annexed  ii  a  true  Bill." 

•«  Blbncowe.'* 

**  Leicatershire.    The  jurors  for  our  present 
sorereign  lord  the  king,  upon  their  oath,  pre- 
sent, that  the  right  honourable  Lawrence  earl 
Ferrers,  ? iscount  Tamworth,  late  of  the  parish 
of  Breedon,  in  the  county  of  Leicester,  not 
having  the  fear  of  God  liefore  his  eyes,  but 
being  moved  and  seduced  by  the  instigation  of 
the  devil,  on  the  18th  day  of  January,  in  the 
dSd  year  of  the  reign  of  our  present  sovereign 
lord  George  the  So,  by  the  grace  of  God,  of 
Great  Britain,  France,  and  Ireland,  king,  de- 
lender  of  the  faith,  and  so  forth,  with  force  and 
arms,  at  the  parish  of  Breedou,  in  the  county 
of    Leicester    aforesaid,    in    and   upon    one 
John  Johnson,  in  the  peace  of  God,  and  of  our 
•aid  lord  the  king,  then  and  there  being,  felo- 
niously, wilfully,  and   of  his   malice  afore- 
thought, did  make  an  assault,  and  that  he  the 
aaid  Lawrence  earl  Ferrers,    viscount  Tam- 
worth, with  a  certain  pistol  of  the  value  of  two 
shillings,  then  and  there  being  charged  with 
gunpowder,  and  a  leaden  bullet,  which  pistol 
he  the  said  Lawrence  earl  Ferrers,  viscount 
Tamworth,  in  his  hand  then  and  there  had 
and  held  at,  against,  and  upon  liim  the  said 
John  Johnson,  then  and  there  feloniously,  wil- 
fully, and  of  his  malice  aforethought,  did  dis- 
charge and  shoot  off:    and  that  he  the  said 
Lawrence  earl   Ferrers,  viscount  Taraworih, 
with  the  leaden  bullet  aforesaid,  by  force  of  the 
ffuopowder  aforesaiil  out  of  the  said  pistol,  by 
nim  the  said  Lawrence  earl  Ferrers,  viMMiunt 
Tamworth,  so  as  aforesaid  discharged  and  shot 
off,  him  the  said  John  Johnson,  in  and  upon 
the  left  side  of  the  said  John  Johnson,  a  little 
under  the  lowest  rib  of  the  said  John  Johnson, 
theu  and  there  feloniously,  wilfully,  and  of  bis 
malice  afurethought,  did  strike  and  wound, 
giving  to  the  said  John   Johnson  then  and 
there,  with  the  leaden  bullet  aforesaid,  out  of 
the  said  pistol  so  as  aforesaid  discharged  and 
shot  off,  m  and  upon  the  said  left  side,  a  little 
under  the  lowest  rib  of  the  said  John  Johnson, 
one  mortal  wound,  of  the  breadth  of  one  inch 


19th  dav  of  the  same  month  of  JaDaary,ia 
the  39d  year  aforesaid ;  on  wbidi  said  19th 
day  of  January,  about  the  hour  of  nine  of  the 
clock  in  the  morning,  he  the  said  John  Jobs* 
son,  at  the  parish  of  Breedon  aforesaid,  m  Ibe 
county  of  Leicester  aforesaid,  of  the  mortal 
wound  aforesaid  died :  and  so  the  jurors  aftre- 
said,  upon  their  oaths  aforesaid,  do  ny,  thit 
the  said  Lawrence  earl  Ferrers,  viscount  Tui- 
worth,  the  said  John  Johnson,  in  mmoner  sad 
form  aforesaid,  feloniously,  wilfullyyaod  of  hti 
malice  aforethought,  did  kill  and  murdfr, 
against  the  peace  of  our  said  lord  the  king,  Ui 
crown  and  diirnity." 

«•  A  true  Bill.^Witnesses,  Elizabeth  Barge- 
land,  Elizabeth  Saxon,  Elizabeth  Dolmas, 
Sarah  Johnson,  Thomas  Kirkland,  WiDiui 
Tomiinson. — Sworn  in  Court." 

Lord  High  Steward,  Is  it  your  lonkhipi^ 
pleasure,  that  the  Judges  have  leave  to  beet* 
vered  ?^ Lords.   Ay,  ay. 

Cierk  of  (he  Crown,  Serjeant  at  Arms,  mke 
proclamation  for  the  lieutenant  of  the  Toircr  H 
bring  his  prisoner  to  the  bar. 

Serjeant  at    Arms,    Oyez,    Ojres,   Oyci!     i 
Lieutenant  of  the  Tower  of  London,  brisf 
forth  Lawrence  earl  Ferrers,  your  prisoQer,li 
the  bar,  pursuant  to  the  order  of  the  Houieif    \ 
Lords. 

Then  Lawrence  earl  Ferrers  was  broncfatH 
the  bar  by  the  deputy  governor  of  the  Tovir, 
having  the  axe  carried  before  him  by  thegeatlf- 
man- gaoler,  who  stood  with  it  on  the  lelt  biai 
of  the  prisoner,  with  the  edge  turned  from  bai. 
The  prisoner,  when  he  appruachetl  the  tar, 
made  three  reverences,  and  then  fell  npoa  hii 
knees  at  the  bar. 

Lord  High  Steward,  Your  lordship  maj 
rise. 

Then  the  prisoner  rose  up,  and  bowed  to  bil 
I  grace  the  Lord  Hi^U  Steward,  and  to  the  Houfi 
of  Peers  ;  which  compliment  was  returned  hia 
by  his  grace,  and  the  lords. 
*  Tlitrn  proclamation  having  been  made  apil 
for  silence,  the  Lord  High  Steward  spake  It 
the  prisoner  as  fullons  : 

Lord  Hi^h  Steward.  Lawrence  earl  Ferreff  $ 
You  ^are  brought  to  this  bar  to  receive  )osr 
trial  u|Kin  acharireof  the  murder  of  John  Jobs- 
son  ;  an  accusation,  with  respect  to  the  crioie, 
and  the  persons  viho  make  it  (tbe  grand  jurvflf 
the  county  of  Leicester,  the  place  of  your  lord- 
ship's residence),  of  the  most  solemn  aod  ff* 
rious  nature. 

Yet,  my  lord,  you  may  consider  it  but  M  ti 


and  depth  of  four  inches:  of  which  said  mortal  !  accusation  ;  for  the  (create»t  or  meanest  subject 
wound  the  said  John  Johnson,  at  the  said  parish  !  of  this  kingdom  (such  is  the  tenderness  of  osr 
of  Breedon,  in  the  said  county  of  Leicester,  did     '  "~*  *^'  '  *   ' 

languish,  and  languishing  did  lite,  until*  the 

*  The  meaning  of  the  word  until  was  much 
litigated  in  the  case  of  the  King  against  Ste- 
▼ens  and  Agnew,  Trin.  44  O.  3.  6  East  Q44, 
ia  which  case  it  was  decided  that  the  word  OMy 
kt  coutnied  cither  uc1iimv«  or  incluttvc  of 


law)  cannot  be  convicted  capitally,  but  bys 

I — _— _-_ — - 

the  day  to  which  it  is  applied,  according  ta  tbs 
context  and  subject  matter.  So  iu  Pugh  v.  Daks 
of  Leeds,  Cowp.  714,  it  was  lield,  that  istfcj 
phrase  •<  from  the  day  of  the  date"  the  wsf« 
'  from'  might  be  conttrucd  to  iudode  or  cnfti'* 
the  day  of  the  date. 


f6»3} 


Jot  Murder, 


«harf  e  mikdt  by  twelve  gfood  and  liwrful  men, 
bnil  a  ¥«rtliet  found  liy  llie  same  number  of  Liia 
'equals  at  I  he  leaM. 

3Iy  lordf  in  ibis  period  of  the  proceedings, 
flvhlle  ytmr  U)rd>lii|>  stauilt^  only  as  acciiKcdi  I 
ftoucli  but  gently  on  t lie  olfeuce  charged  upon 
;y«ur  lordship  ;  y*ft,  fur  yfliir  o%in  sake*  il  be- 
hoves me  strongly  to  mark  the  aature  of  the 
judicaiuie  before  which  you  now  appear. 

It  is  &  happinefis  result ihg'  from  your  lord- 
-mliip^sbiith  and  tlie  constitution  of  this  country, 
%bat  your  loribbip  is  now  to  be  tried  by  your 
peers  m  foil  parli:itnent.  What  greater  conso* 
Ittlion  can  be  nuj^ifesied  to  a  person  in  your  on- 
^liappy  circum^iances,  than  to  be  reminded,  that 
you  are  to  bt;  trieil  by  a  set  of  jud^ee,  whose 
Ettf^city  tmd  penetiation  no  material  circnm* 
itaoces  in  evidence  ran  escape,  and  whose  jus- 
lice  nothing  cnn  influence  or  pervert? 

This  consideration,  if  your  lordship  is  con- 
scious of  innocence^  iDUst  free  your  mind  from 
4iny  perturbaiioris  that  the  solemnity  of  such  a 
ilrial  fni|,'ht  excite;  it  will  render  the  charg;e, 
heavy  as  it  is,  unembarras&ing',  and  leave yoar 
lordship  firm  and  composed,  to  avail  yourself 
0f  every  mode  of  defence,  that  the  most  e<jual 
mnil  humane  laws  admit  uf^ 

Your  lordship,  pursuant  to  the  course  of  this 

fedicature,  hath  been  fuiniiihed  with  a  copy  of 
e  indictment,  and  hath  had  youro>«'n  counsel 
issii^Ded ;  you  are  therefore  enabled  to  make 
inch  defence  as  is  most  for  your  benefit  and 
idvantag^e  ;  if  your  lordship  shall  put  yourself 
la  trial,  you  must  be  assured  to  meet  with  uo- 
iiiing  hut  justice,  candour,  and  impartiality. 
)  Before  I  conclude^  1  am,  by  command  of  the 
Boiise^  to  acquaint  your  lorilsbip,  and  all  other 
ns  who  have  occasion  to  speak  to  the 
>>urt,  during  tbo  trial,  that  they  are  lo  address 
~  leroselves  to  the  Lords  iu  general,  and  not  to 
My  lord  in  particular. 

Jjord  Hif^h  Steward.     Lawrence  carl  Fcr- 
I,  Your  lordeilup  will  do  well  to  g^ire  atten- 
jon,  whde  you  are  arraigned  on  your  indict- 

Here  EnrI  Ferrers  was  arraitfoed,  in  the 
■orm  of  the  said  Indictment,  against  him,  by 
■he  Clerk  of  the  Crown  in  the  King^s  bench. 

Clerk  of  the  CroR^n.  How  say  you,  Law. 
^tice  earl  Ferrers,  Are  you  i^^uifty  of  the  fe- 
lony and  murder  whertioi"  you  stand  indicted, 
tor  oot  ifiiilty? 

*      Earl  Ferrers*  Not  Guilty,  my  lords, 
i      CL  of  the  €r.    Culprit,  11  ow  will  your  lord- 
l#liip  be  trifdF 

(      iiafl  Ferrer t.     By  ^*>d  and  my  peers, 
j-     CL  of  the  Cn     CJod  send  your  lordship  a 
I  good  deliveriince. 

^  CL  of  the  Cr,  Serjeant  at  Arms,  make  pro- 
iclamatiivo. 

\  Serj.  at  Arm**  0ye2,  Oyez,  Oyez!  All 
(manner  of  perhons  thnt  vtill  i^ive  evidence,  on 
i  behalf  of  our  sovereign  lord  the  k)n|f  against 
L#atvreiice  earl  Ferrers,  the  prisoner  at  the  bar, 
AtA  ihiiu  Come  for  Lb  ^  and  they  sbaU  be  beard ; 


A.  D.  1760»  [804 

fnr  now  be  stands  at  the  bar  upon  his  ddt* 
vera  nee. 

Lard  High  Steward.  My  lords,  the  distance 
of  this  place  from  the  bar  is  so  gfreat,  that  I 
must  desire  your  lonlslMps*  leave  to  po  down  to 
the  talde  tor  the  convenieuce  of  hearing. 

Lords.    Ay,  ay. 

Then  his  grace  removed  to  the  wooIpacV, 
and  delivered  the  white  staff  to  be  hetd  by  the 
gentleman  usher  of  the  black  rod  ;  who,  dur- 
iujjf  the  whole  Inal,  alwayii  received  and  de« 
lii  ered  back  the  white  staff'  upon  his  knee. 

Mr, Perrott,  (Afterwards  a  baron  of  this  Ex- 
chequer.) i\J ay  it  please  your  lordships;  thia 
noble  lord  Lawrence  earl  FerrerSi  the  prisoner 
at  the  bar,  stands  indicted  for  the  felonious  kilU 
mg  and  murderof  one  John  Johnson  ;  and  the 
iudiciment  sets  forth,  That  the  right  honour- 
able Lawrence  earl  Ferrers,  viscount  Ttim- 
worlh,  on  the  18th  day  of  January,  in  the  S3d 
year  of  his  present  majesty's  reign,  with  force 
and  arms,  at  the  parish  of  Breedon,  in  the 
county  of  Leicei>ter,  in  and  upon  one  John 
Johnson,  feloniously,  wilfully,  and  of  bis  ma- 
lice aforethought,  did  make  an  asaauU ;  and 
that  B  certain  pistol  then  and  there  being" 
charged  with  gunpowder  and  a  leaden  bullet, 
which  pistol  he  the  said  Lawrence  earl  Ferrers 
then  and  there  held  in  his  hand,  at,  against, 
and  upon  him  the  said  John  Johnson,  then  and 
there  felonii>usly,  wilfully,  and  of  his  malice 
aforelhougfht,  did  discharge  and  shoot  olf ;  and 
with  the  leaden  bullet  aforeaaid,  by  force  of  the 
gunpowder  aforesaid,  out  of  the  said  pistol  bj 
him  so  discharged  and  shot  off,  the  said  John 
Johnjion  in  and  upon  the  left  side  of  the  said 
John  Johnson,  a  hitle  under  his  lowest  rib,  then 
anil  there  feloniou!ily,  wilfully,  and  of  hia  ma- 
hce  aforethought,  did  strike  and  wound,  giving 
to  the  said  John  Johnson  tlien  and  there  with 
the  leaden  bullet  aforesaiil,  out  of  the  said  pistol 
so  as  aforesaid  discharged  and  shot  oflT,  in  and 
upon  the  said  left  side  a  little  under  the  low- 
est rib  of  the  sold  John  Johnson,  one  mortal 
wound,  of  the  breadth  of  one  inch,  and  depth 
of  tour  inches  ;  of  which  said  mortal  wound  the 
said  John  Johnson  did  languish,  and  languish- 
ing  did  live,  until  the  19lb  day  of  the  same 
month  of  January,  in  the  33d  year  aforesaid  ; 
on  which  day,  about  the  hour  of  nine  of  the 
clock  in  the  morning,  he,  the  said  John  John- 
son, of  the  mortal  wound  aforesaid,  died ;  and 
so  the  jurors,  upon  their  oath,  do  lind,  that  the 
said  Lawrence  earl  Ferrers,  the  said  John 
Johnson,  in  manner  aforesaid,  feloniously,  wil- 
fully, and  of  his  malice  aforethought,  did  kill 
and  murder,  against  the  |>eace  of  our  lord  tbe 
king,  his  crown  and  dignity « 

To  this  indictment  the  noble  lord,  the  pri- 
soner at  the  bur,  hath  pleaded  Not  Guilty,  and 
fur  his  trial  hath  put  htmself  upon  your  lord* 
ahips,  his  peers  here  present. 

We,  who  have  the  honour  to  serve  theerowii 
in  this  prosecution,  shall  call  our  cfideuce; 
and,  if  we  prove  the  fact  charged  by  ihji  io- 
diclnjeut,  we  doubt  uq^  bvvv  '^Q\sxVii^^\\j^  ' 


895]  S&  GEORGE  11. 

find  him  guilly,  and  give  such  judgment  fur 
Ibe  same  as  shall  b«  just. 


^^m        Mr.  Attorney  General*  May  it  please  joar 
W  lordshi|»s,  I  am    likewise  of  counsel   for  the 

I  crov>Q  ;  and  it  is  become  my  duly  in  cofise- 

■  queace  of  that,  to  u|ieD  to  your  lordships  ibt? 

L  nets  and   circumsiances  of  this  ca^e,  out  of 

^^^     l^'hlcli  your  lord&in|)i  are  to  i^ollect  and  find  ibe 
^^B     crime  tUAt  is  charged  in  iUih  Indictnteut. 
^^^  Tl»e    oohle   prisoner   stands  Itere  arraigned 

I  before  your  lordships  for  that  odiuus  utfenee, 

I  malicious  and  delilH^riUe  mitrder.     There  ctin- 

I  not  he  a  crime  in  huiuao  society  that  desert es 

^^H  more  to  be  jumislied,  or  more  strictly  to  lie  eo* 
^^B  quired  iifler  ;  and  therefore  it  is,  that  his  ma- 
^"  jeity,  the  ureal  executive  hand  i>r  justice  in 
Ibis  kingdom  t  has  promoted  this  inquiry « 
whereby  all  iiifti  may  see,  that  in  the  case  of 
murder  liis  msjesty  makes  no  difference  be- 
Iween  ibe  frrealest  and  noesnest  of  his  subjects* 
The  pri<iiiner  has  a  right,  from  bis  quality, 
to  the  privilege  of  beiu|f  tried  before  this  noble 
tribunal ;  if  l»e  is  innocent,  be  bas  the  greatest 
reason  to  be  eomlbrted,  that  your  loi-dships  are 
liis  jtiilges ;  for  that  nobleness  and  humanity, 
VFbich  prompt  yon  naturally  to  incline  lovvards 
mercy,  will  strongly  exert  themselves  in  llie 
prolffction  of  innocence.  But^  on  the  other 
iiand,  if  the  prisoner  is  really  guilty  of  the 
cbir^e^  his  case  is  truly  deplorable ;  because 
your  miiids  cannot  be  deceived  by  the  false 
colouring  of  rhetoric,  nur  your  zeal  far  justice 
perverted  by  any  unmanly  compassion. 

This  impWiinl  disposition  in  your  lordships 
call  upon  the  prosecutors  to  observed  conduct 
worthy  of  ibis  noble  assembly  ;  not  to  itdnrcre 
or  agiprravate  any  part,  or  advance  a  step  Ije- 
yond  their  instructittns;  but  barely  lo  state  the 
naked  facts,  in  order  thai,  by  (bat  means,  your 
lordships  may  be  enabled  the  better  to  attend  to 
Uie  wiines^s  wlien  rbey  are  called,  to  examine 
and  cross-examine,  and  sift  out  the  truth  nilh 
more  accuracy « 

My  lords,  as  I  never  thought  it  my  duty  in 
any  case  to  attempt  at  eloquence,  where  a'  pri- 
aoner  slood  upon  trial  fur  his  life ;  much  less 
■hail  I  think  myself  juslifi*?d  in  doing  it  before 
your  lordships  ;  ^ive  me  leave  therefore  to 
proceeii  in  a  narration  of  the  facts. 

My  lonls,  the  deceased  person,  Mr.  Jobnson, 
I  find  li>  hfl»e  been  employed  by  the  Ferrers 
lamily  almosit  during*  the  whole  course  of  his 
life;  be  was  taken  into  their  service  in  his 
^rouiii,  and  continued  in  it  unfortunately  to  the 
lime  of  his  death. 

At  the  time  a  bill  was  passed  by  yaur  tnrd- 
sfaips  about  two  years  a|r<i,  lo  separate  lord 
Ferrers  from  hi si  lady,  Mr,  Johnson  was  ap- 
{>otnied  receiver  of  his  lc*i  dsbip's  estates.  At 
that  lime  his  Itirdship  seem^  in  have  etiterlained 
A  gc^od  opinion  of  hira,  because  I  am  udd  he 
was  apiMiinted  receiver  at  his  lordnbip's  own 

♦  Charles  Pratt,  esq.  (afkrwards  lord  €am< 
den,  chief  justioa  of  C\  B.  and  lord   chan- 


Trial  of  Earl  Terrert^ 

nomtnalioo  ;    but,  very  seoo  afler  h»  I 
invested  with  this  trust,  wben  ih*'  mvU 
found  there  was  no  pOj»sible  i 
I  temptation  whatever,  lo  prevtm 
I  son  to  break   that  irxisi,   bis   lord!%ln|/«   md\ 
^  IQfrew    to    be   alienated  lownrds   him,  sod  kit  J 
I  former  friemUhip  was  cooverted  into  bal/d. 
I      The  firsi  instance  of  bi^  hirdvbip  s  miiiir,| 
j  that  will  bej>roduced,  will   be  liix  ^i*m^  hia 
I  notice  10  i|uit  a  beueficiftl  ffirm  that  Mr.  Jof 
sou  bad  obitiineil  a  promise  of  from  thei 
his  relations,  before  be  was  appotnt«.*d  i 
but  when  it  appeared  that    the    Ir 
made  |;rood  the  promise,  and  bad 
a  lease,  my  lord  was  obliged  to  deaist  i 
attempt. 

\V  hen  be  fotiod  it  was  imitossible  to  ( 
biin  from  Ibe  farm,  bis  resentment  a^uftNr, 
JohoKon  increased,  and  he  took  at  Isuit  > 
mined  resOlniion  within  himself  to 
horrid  fact  tor  wiiicb  be  now  slanda 

My  lords,  I  find  several  causes 
the    prisoner    for    this   iinli^nalion    ejt^ 
against  the  deceased;     be  ctianfrd  bia 
liuvini;  C(dluded  secretly  witii   bis  ad«« 
with  being   in  tiie  iulei'est  of   tUo^e 
pleHseit  to  eali  his  enemies,  aod  indtiun 
procuring  tl^e  act  of  parliomeot :   wbcifa 
charges  were  justly  tt>uuded  or  nnl, 
immaterial  i    such  as  tbey  were,  be  I 
ceived  them,     liis  lordship,  who  be^t  kfl 
malice  of  bis  own  hearty  baa  confessed  I 
harboured  thc^e^spicioos. 

Another  llnn^  be  susptcled  wa«,  that,  in  f 
federacy  with  Mr.  Burstem  ami  Mr.  Ga 
he  agreed  to  di!>Bp)M)int  his  lordship,  io  i 
to  a  certain  contract  (or  cusl  mioea% 
notions,  Ihoucrb  void  of  irutli,  hud  so  [ 
his  lord»»bip*s  mind,  that  he  vviifi  det^ftitd 
last  to  g^raiify  his  revenue  by  inurder. 

This  delermination  lieini^  urice  settled  i 
tixed  in  bis  mind,  your  lordships  %xj}\  xre«4 
what  art  and  tlelibfratioo  it  wa>  1 1~ 

withstanilioGT  these  seeming  cu 
bedi<isembled  all  appearance  ut  lU^^ili  «r1 
senimrnt ;    his  countenance  Inwards  the  t' 
ceased  fur  some  months  seemcil  gre«tly  H  \ 
cbuni;etl,  and   his  buhavjoui*   wa»  ailabJa  < 
good -humoured. 

The  pi#or  man,  deluded  with  thes^  app 
ances,  was  brought  to  believe  be  wa«  u 
danger,  smd  that  he  might  salely  trust  bia 
alone  with  his  lordship. 

Matters  beinur  thutt  preparfd,  on  Sunday,  i 
13tb  of  January,  the  pribooer  ntddean  iipp 
ment  for  Mr.  Jabusou  to  ci»uie  to  him  « 
Friday  fotluwiiig. 

His  lordsbiji,  though  the  ij- 
five  or  siK  days  before,  reaieuil: 
ly  ;  nay,  be  remembered  the  very  5  ' 

ra  ronip^  and  t<H»k  his  m^*&»urvs  a* 
for  yiiur  loidsbipA  will  6nd,  llial  i 
clear  Ihp  bnuse,  Mrs.  Cbtfifrd,  a  \* 
lives  wi'h  li>s  lonlshi^v  "■  '  ' 
directed  liy  bim,  at  0 

absent  tbimseUes;  li*^ ,   ...  ,r  ,m  .,.  i»t,  lu  .- .»• 
.  Qvxt.  to  Mrs,  Clidurd^s  latUer,  about  fivoiuiks 


tfff]  ^n^*       Jir  Murder, 

from  mv  forJV  tioud^,  inil  not  to  retom  till 
fire,  or  nftll'iin  hour  after  6ve. 

*tlic  tTro  men  AtTTuiils  Itkettise,  the  only  ter* 
▼ftnf9  or  that  «e%  theu  resiilin^  if  ilh  hiin^  were 
contrived  to  be  sent  out  of  the  wiiy ;  so  ihnt 
m  Mr  Johnson  repaircij  to  Stnntun,  my 
R  housp,  at  three  o'clock,  there  was  no  |ier- 
tn  ihe  hoiiffe,  except  bis  lordship,  und  ihiee 
*-serfafi49, 

r.  Johnson,  when  he  came  to  the  boiinef 
ttpt  at  the  door,  and  was  received  by  ins  lord- 
and  directed  to  wait  »ome  time  in  the  f till 
;  then  hts  lonUhip  ordered  him  into  the 
ur,  where  they  botti  entered  together,  and 
door  wa»  immrdialely  locked  on  the  in- 
hit  passed  in  that  iiitervaK  between  the 
of  Mr,  John»on*i»  first  goin^  in»  and  the 
of  Xiin  betni?  shot,  can  only  be  now  known 
la  vuur  lordnlrips  by  the  noble  earfs  confession, 
which  halt  been  very  umple  indeed  upon  the 
yrmut  ooeasionf 

After  Mr  Johnson  had  been  there  the  best 
pirt  of  an  honr^  one  of  the  inaid«  in  the  kitchen, 
nesriog  »c»me  hiy;h  words  in  the  parlour,  went 
to  ibe  drior  to  see  if  she  con!d  discofer  what 
WW  doing ;  she  listened,  and  heard  my  lord, 
•«  the  was  at  the  kitchen  door,  say,  Down 
trpon  your  ktrees  ;  yotir  tifne  is  come ;  you 
mutt  \Uv  ;  and  presently  after  heard  a  nisto(  go 
<»(f ;  upon  that,  she  removed  from  Ihe  icitchen, 
tod  mired  to  another  part  of  the  home ;  fur 
ibs  did  not  care  to  venture  into  his  lordship's 
frwence, 

Tbw|fh  it  appeared,  afterwards,  that  Mr. 
ioliijson  ^lad  then  received  that  wound  of  which 
lie  died,  he  did  not  theu  immediately  drop;  be 
Arose,  and  whs  able  to  walk. 

Just  then,  my  lord  Ferrers,  ai  he  confessed 
ifterward^,  felt  a  few  momentary  touches  of 
Cf>mpi9^iou  :  he  permitted  Mr.  Johnson  to  be 
M  u|i  fitatrs  to  bed,  till  better  as^i^taoce 
coold  be  called;  he  suffered  a  surgeon  to 
W  itnl  for-^  nay,  the  fery  surgeon  that  Mr. 
'  nlf  hitd  desired  ;  and  Mr.  John- 
,  by  his  lordship's  order,  wereac- 
quKiDicd  \^  iiu  the  accident,  and  sent  for  to  see 

Mr.  Johoson*6  dmigphter  was  tite  6rst  person 
thit  came  ;  she  met  Uic  noble  lord,  and  the 
Jw  greeting  she  bad  from  him  wais,  that  he 
»i(l  febot  her  father  ;  and  that  he  had  done  it 
parposei  and  deliberately.  Mrs,  Clifford, 
'  had  been  apptize d  of  this  accident  by  the 

tats,  came  nf»t  lonij  after ;  and^  in  an  hour 

W*dsn  half,  or  two  houm,  Mr,  Kirklnud,  the 
ttuyenn^  i%ho  was  from  home  when  the  i^ervaot 
dispatched,  and  nt  a  neighbourmg  village, 
neil  with  the  1>est  expeditton  he  cnukl 
,  to  Stsnton,  When  he  came  to  Stantoti 
tniv  lord  in  the  pa«sai;e. 

'     '  '         i^iU  observe,  that  the 

'1  i  behaviour,  from  thU 

liiti  ill .  Johnson  was  removed 

,  i^eerited  nil  along  cn1cu1ate<l 

%  and  that  the  only  anxiety  he 

the  drtail  of  beitig  acbedi  and 


A.  D.  ITGO, 


rS9S 


broufrht  to  pnnishment  to  case  Mr*  Johnsott 

should  die. 

Upon  Mr.  Kirkbnd^s  first  appearance,  mj 
lord  bad  told  him,  that  he  had  shot  Mr,  John- 
sou,  and  that  he  had  done  it  coolly  ;  he  desired 
he  might  n*^»t  J^'  -ifl/^^cl  tdl  it  wfts  known  wiili 
cerlainly*   •  ^r,  Johnson  ivortld  die  or 

/>ot;    and  i  1,  that  if  any  person  al» 

tempted  to  seize  hira,  he  would  shoot  them. 
Mr,  Kirklaod  told  him,  be  would  take  carethit 
nobody  should  metldle  with  him. 

Mr.  Kirkland  was  then  brought  tip  to  Mr, 
Johuson,  who  ivas  upon  the  bed  ;  the  surg^.'Oii 
examined  the  wound,  and  found  that  the  ball 
h«d  penetrated  a  little  l>elow  the  ribt^on  the  let! 
side;  be  took  an  instrument  in  bi^  biind,  culled 
a  director,  in  onler  to  piobe  the  wound :  brr« 
my  lord  interrupted  him,  and  said,  You  nocd 
not  be  at  that  trouble;  pass  your  tu^trumrnl 
downwards;  ],  wbtn  1  shot  oft' the  pislol,  di- 
rected it  Itmt  way  ;  and  Mr.  Kirktmul  fouritl 
this,  upon  examination,  to  be  true;  the  ball 
had  not  passed  ibrnugh  the  body,  but  remuined 
lodjjed  in  the  cavities  of  the  abdomen. 

VVheu  my  lord  found  that  the  halt  was  in  the 
body,  he  grew  uneasy  j  for  be  was  ap|)re- 
hensive  that  the  ball,  if  it  remained  there, 
might  prove  fatal ;  he  asked  Mr.  Kirktnnd,  if 
it  could  be  extracted ;  Mr*  Kirkland  told  him, 
from  what  he  observed,  it  would  be  impracti- 
cable to  extract  the  hall  i  htit  to  give  him  belter 
hopes  he  told  him,  that  many  persons  had  lived 
a  long  while  afler  they  had  been  shot,  thouj^^h 
the  ball  had  remained  within  them. 

Presently  after  this,  the  surgeon  went  down 
stairs  to  prepare  a  fomentstion,  anil  soon  aller 
returned  :  when  he  came  Imck  into  the  room, 
Mr.  Johnson  comubined  of  the  strangury,  nnd 
found  a  considerable  difiiculty  in  making  water. 
This  alarmed  his  lordship  again ;  he  theti 
asked  Mr.  Kirkland,  What  would  be  the  coo- 
sequence,  if  the  bladder  or  kidneys  were  hurtf 
Mr.  Kirkland  having  laid  down  his  rule  of  con- 
duct, wherein  his  prudence  deserves  to  be  com- 
mend ed»  answered,  That  though  the  bladder 
should  be  wounded,  or  the  kidneys  hurt,  them 
had  been  iDany  cures  performed  tipon  such  like 
wonnds* 

This  made  his  lordship  tolerably  easy  :  he 
then  began  to  be  in  better  spirits,  which,  f  am 
sorry  to  say,  at  that  time  were  somewhat 
heightened  with  liquor  t  for,  nltbough  he  was 
cool  and  fresh  when  he  did  the  f^ct,  yet  tba 
moment  it  was  done^  he  began  t(»  driuk,  and 
continued  drinking,  at  liases,  till  twelve  o*clock 
at  Dight:  this  liquor,  however,  only  contributed 
to  raise  his  spirits,  without  disordering  ln>  un- 
derstanding ;  for  he  appeared  to  be  complete 
master  of  himself  the  wtiole  day. 

After  Mr.  Ktrkknd  had  given  him  so  much 
encouragement,  they  togerher  went  down  to 
the  stdl  room  ;  and  now  bi»i  lordship  verily  be- 
Keving  that  Mr.  Johitson  would  lecovcr,  he 
grew  less  c^mtious  in  avowing  the  deliberatioii 
with  which  he  did  the  fact,  and  declaruig  alt 
the  circumstances  that  attended  it, 

And  hert%  beoause  1  i^ill  aot  wroo^  the  t&A- 

^M 


899J  SS  GEORGE  11. 

ble  lord,  ^y  addinif  a  tingle  letter  to  mj  briefs 
your  lordships  sball  hear  his  coufeasiOD,  from 
ihence.  in  his  own  words. 

"  Kirklaiid,  says  be,  I  believe  Johnson  is  more 
frifj^htened  than  hurt;  my  intention  was  to 
ba?e  shot  him  dead ;  but,  6ndioff  that  be  did 
not  tall  at  the  first  shot,  I  intended  to  have  shot 
him  again,  but  the  pain  he  complained  of  oiade 
me  forbear ;  there  nature  did  take  place,  in 
op|Mjfiition  to  the  resolution  1  bad  formed.  I 
desire  you  will  uke  care  of  bim  ;  for  it  would 
^  cruet  not  to  give  him  ease,  now  I  have  spared 
bis  life. 

'*  When  yon  speab  of  this  afterwards,  do  not 
fay  (though  I  desire  be  may  be  eased  of  bis 
pain)  that  I  repented  of  what  I  have  done :  I 
am  not  sorry  for  it ;  it  was  not  done  witbout 
consideFation  ;  I  own  it  was  premeditated ;  I 
bad,  some  time  before,  charged  a  pistol  tor  the 
purpose,  being  determined  lo  kill  him,  for  he  is 
a  villain,  and  deserves  death ;  but,  as  be  is  not 
dead,  I  desire  vou  will  not  suffer  my  b?ing 
seized  ;  for,  if  he  dies,  1  will  go  and  surrender 
myself  to  the  House  of  Lords ;  I  have  enougb 
to  justify  the  action;  they  will  not  excuse  me, 
but  it  will  satisfy  my  own  conscience :  but  be 
sure  you  don't  go  in  the  morning  without 
letting  me  see  you,  that  I  may  know  if  be  ia 
likely  to  recover  or  not ;  1  will  get  up  at  any 
time  ;  at  four  o'cb)ck  in  the  morning. 

*'  To  this  very  strange  and  borrid  declara- 
tioo  Mr.  Kirkland  answered,  by  promising  bis 
lordship,  that  be  would  certainly  give  bim  the 
first  intelligence  touching  Mr.  Jobnaou'v  con- 
dition ;  and,  as  it  waa  proper,  for  vary  prudent 
reasons,  as  well  with  respeot  to  bLmaelf  aa  Mr. 
Johnson,  to  dissembte  with  bia  lordship,  be 
proceeded  further,  and  told  him,  that  be  would 
give  a  favourable  account  of  ibis  matter.  The 
noble  lord  then  asked  him,  what  be  would  say 
if  he  was  called  upon ;  he  told  him  he  would 
say,  that  though  Johnson  was  shot,  that  be  was 
in  a  fuir  way  of  recovery.  His  lordship  asked 
Mr.  Kirkland,  if  be  would  make  oath  of  that? 
He  said.  Yes. 

**  31  r.  Kirkland  then  weni  to  see  Mr.  John- 
son again,  and  found  him  better;  they  then 
went  to  supper,  and,  during  the  time  they 
were  at  supper,  his  lordship  mentioned  several 
other  particulars :  he  said,  he  was  astonished, 
tha^  the  bullet  should  remain  in  his  body  ;  for, 
says  be,  I  have  made  a  trial  witb  this  pistol, 
and  it  pierced  through  a  board  an  inch  and  a 
half  thick ;  I  am  astonished  it  did  not  pasa 
through  his  body ;  I  took  good  aim,  and  1 
held  the  pistol  in  this  manner ;  and  then  be 
shewetl  Mr.  Kirkland  tbe  manner  of  bis  hold- 
ing his  pistol.*' 

fic  also  declared  the  grounds,  and  motives 
fur  his  killing  Johnson ;  that  he  had  been  a  vil- 
lain ;  that  he  waa  in  the  interest  of  bis  ene- 
mies ;  that  he  had  joined  with  those  who  had 
injured  him,  and  taken  away  bia  estate,  by  an 
act  of  parliament ;  that  be  had  colluded  witb 
Mr.  Curzon  and  Mr.  Buralem,  with  respeot  lo 
the  coal  cootract. 


Trud  of  Earl  Ferrers^ 


[900 


Another  tbing  be  mentkMied  with  respect  ta 
the  farm ;  says  be,  I  have  long  wanted  te 
drive  Johnson  out  of  the  farm ;  it  he  reoovtn. 
be  will  go  back  to  Cheshire,  where  he  cams 
from.  Mr.  Ku-kland  said.  No  doubt  but  tbii 
accident  would  drive  him  home  again. 

After  they  bad  supped,  Mrs.  Cllffbrd  eao^ 
iQto  the  room,  and  she  proposed,  that  Nr» 
Johnson  should  be  removed  to  the  Laob^ 
which  is  the  name  of  Mr.  JohiisoD'a  house,  sod 
lies  about  a  mile  fiom  Sianton;  his  lordsUif 
refused  to  conseo^  to  that,  not  because  hf 
thought  Mr.  Johnson  might  be  hurt  by  the  re- 
moval, liut,  to  use  his  own  v^ords,  hwamt  lie 
would  have  him  under  bis  own  roof,  to  plagof 
the  villain. 

When  supper  was  over,  they  retunicd  ksek 
to  Mr-  Johnson,  who  was  thvn  under  tin 
greeiest  uneasiness ;  be  was  restless,  and  the 
oompiaint  of  the  strengury  increased:  tbia 
my  (urd  waa  alarmed  again ;  he  enquired  tf 
the  surgeon  what  would  be  the  conaequsaoi^ 
in  case  the  guts  were  shot  through  F  llr. 
^klapd  gave  him  a  favourable  answer,  thit 
revived  hi*  spirits ;  he  went  out  of  the  nmk 
ond  inviM  Mr.  Kirkland  to  take  a  bottle  if 
port;  they  then  drank  together,  and  daring 
that  time,  the  same,  or  the  like  exprasnosd 
were  repeated,  I  will  not  trouble  your  M* 
ships  with  them  again ;  but  be  all  along  de* 
dared,  he  did  not  do  it  hastily,  but  coolly  ssi 
delibers^y :  that  his  iotentum  waa  la  baia 
killed  him  :  end  that  the  reason  why  be  did  it 
at  that  time  was,  because  he  would  not  sipi  a 
paper  of  recantation,  acknowledging  all  the  ih 
juriee  he  bad  done  his  lordsbip. 

They  then  again  returned  to  Mr.  Jehn^o^ 
af^er  they  had  drank  out  the  bottle:  whsthll 
the  liquor  was  prevalent  or  not,  I  don't  know; 
vour  lordships  will  observe  what  followed :  lus 
behaviour  to  the  poor  man,  though  be  lay 
there  under  tbe  surgeon^s  hands,  waa  totally 
changed,  and  his  resentment  grew  outrageous  » 
my  lord  again  attacked  bim  upon  the  sane 
charge  as  before,  compelled  him  to.acknowledge 
betbre  all  the  company  (of  which  bia  daugbtec 
was  one)  that  be  waa  a  villain ;  nay,  he  waft 
about  to  drag  him  out  of  bed  upon  the  floor, 
which  would  hardly  have  been  prevented,  if 
Mr.  Johnson,  who  was  tutored  by  a  winkfnNa 
Mr.  Kirkland,  haJ  not  said,  1  da  oonfets  I  •• 
a  villain  :  my  lord  at  last  went  to.  bed  ;  but,  be* 
fore  be  departed,  he  said  with  great  earnest* 
neas  to  Mr.  Kirkland,  May  i  rely  upon  yoa? 
Are  you  sure  there  is  no  danger  ?  Mav  L  go  la 
bed  in  safety  ?  Mr.  Kirkland  aaid.  Yes,  yoac 
kMvlsbip  may.  When  bis  lordship  waa  goa% 
poor  Johnson  begged  to  be  removed  to  bis  own 
house.  Mr.  KirkUind  wished  it  as  mocbs 
for,  beaides  that  he  could  not  have  that  tires 
access  to  bis  patient  that  was  neoessarv,  if  bt 
was  to  remain  there,  be  thought  liinAself  ia  tbe 
utmost  peril.  My  lord  bad  oonfeeecd  IM 
much,  and  Kirkland  too  little ;  so  tbM  if  Mb 
Johnson  bad  died  there,  no  niao  iti.  Mr*  KMi* 
land's  situation  would  have  wiahcd  ta  bM 
beeo  alone  with  his  knkbip»  mwidiiwi'^ 


Jhr  Murder. 
i  cunrerflAlifm  that.lmd  passed  be- 

[.irkltnd,  tiicreforet  immedintely  went 
int,  procured  nix  or  set  en  armed  nwn, 
buck  by  Xvtn  n*c1r»ck  in  the  murtiitiif. 
mored  Mr.  Johnion,  put  him  into  a 
if,  nnd  ti- rapped  liiin  up  in  bUnkets, 
On? eyed  htrn  home.  Toirtrds  niom- 
mor  niHii^s  jtymptora*  greir  Wafse,  iknd 
iUui\  then  weni  away. 
'tihns^n  Uy  Lmtruishmir  tilt  tefen  or 
Ihe  mortiini^,  nrid  then  died, 

iiie^ii  (ifne  Mr.  Kirkhtid  had  |)ro- 
iTimher  of  armed  men  to  jgfo  r[(i«n  lo 
ittid  to  seize  his  lordship,  WheDthej* 
^re,  my  ford  wag  just  out  of  bed;  he 
friers  in  his  hatid^  and  was  seen  ptuifs- 
.rd«  the  stuMe.  The  liorses  were  all 
«nd  every  thing  got  ir>  readiness  for 

jpiin^lhorpe  adtanced  toward  §  him ; 
[\iff>  Idnlship  found  he  was  really  in 
d,  h«:  ^fX  hack  to  his  house^  and 
»od  a  siefife  of  four  or  6ve  hours. 
was  thus  hp»:tH,  he  appeared  at  the 
Mows,  and  thinkinfr  himaeir secure  in 
e,  he  heg^an  to  parley »  and  asked, 
Vf  wanted  with  him  ?  they  f«dd  h}m^ 
Mon  mvm  dead,  and  that  they  were 

t«iirc»  him.  He  said,  he  knew  that 
s ;  for  Mr.  Jofaoaon  was  not  deail : 
lahed  it  might  be  true :  that  he  wotild 
H  it»  unless  Mr,  Kirkland  iioahl  ile- 
that  he  would  pay  no  rejrard  to  any 
'.  He  did  not  think  Bl  to  surreneler; 
liied  in  the  han^e^  irfl  he  (hnught  he 
»niMirtuiiily  of  eacapinff  thromjK  the 

lie   waa    there    discovered   liy  one 

collier,  who  was  a  bold  man,  and  de- 
to  take  him  :  he  marched  up  to  him  ; 
Igh  hia  lortUhip  waa  armed  with  a 
laa,  two  or  three  pistols^  and  a  da^i|;crf 
iled  to  the  collier's  taking  him,  whh- 

1^  the  least  re^^islance:  au<l  the  mo- 
9raa  in  cuMtody,  he  dec?ar*»d  he  gloried 
Bl ;  and  at^aio  dfdared,  that  lie  tn- 
kill  .Johnson.  He  was  then  carfiM 
Inney's  houae,  and  remnined  there  till 

mei;  s,  that  iFpon 

,  n  c     ^  ^  :atrodue<*d  to 

dd  him,  he  knew  his  duty  as  well  aa 
^  otiier  clergyman  :  that  Ihe  fact  ht 
Dttted  was  co«»lly  ami  ddtherately 
that  your  lordships  s^ee  \m  dechra- 
t  ouoaistent  and  uniform,  fittiii  the 
to  the  end. 

'tended 
Bfuer.      I  i»av»' r>[»f-iiLimicin  faifh- 
f^fiistniotiofuf.    The  case  h  rather 
fe  ---'''■  i'. 

Mt  yottr  lord>iliip8» 

!..;  ;.._  cA^  truly.     If  the 

cnmtt  out  as  t  have  rejirefleiited  it  to 

ihi  ti   vour  tordifii)ka'  sentenee 

^v.    The  iioMeeftrtal 

«idty. 


A.  1).  1760, 


[902 


If  lie  has  any  defenc<>»  God  forbid  thai  he 
ahnuM  nat  hare  a  fjiir  opportunity  of  makiufif  it. 
l^t  liim  he  heard  with  pn  tie  nee.  The  proce- 
cutora  will  be  aa  glad  as  your  lordships  to  fiod 
him  inuuceot. 

The  evidence  it  to  detetmioe  ;  and  upon  that 
eviilence  we  i^hall  leave  it, 

Mr.  Sotkitar  Genet  at,  (the  hon.  Charle*  , 
Yotke,  et*q  ) 

My  lorda,  we  will  now  proceed  to  call  ott^ 
wiines^ea.  Call  Elizabeth  Burj^elaud.  [Who 
eame  to  the  bar,  and  one  of  the  clerks  held  the 
book  to  her,  upon  which  she  laid  her  hand.] 

a.    of  the  Cr,     Hearken    to    your    oath* 

*  The  evidence  that  you  shall  give  on  behalf  of 
'  our  sovereij^n  lord  The  kmij *3i  majenty*  aifainst 

*  Lawrence  earl  Ferrerif  the  (iriaunerHiIhe  bar. 

*  shall  he  the  truth,  the  whole  Iniih,  and  n'^thiuf 

*  but  the  iMith.    8o  help  you  God.'    [Theii| 
she  kissed  the  book,] 

Sol.  Gen*  My  lords^  Thfs  witncas  was  to  thsl 
house  at  the  time  when  the  fact  is  charged  tol 
have  been  committed.  I 

L.  M.  S.  If  your  lordships  please,  the  clerk] 
may  i^o  down  to  the  bar,  and  repeat  to  youri 
lordships  what  h  hM  by  lord  Ferrers  er  th#l 
witnesaes. 

Lordi.    Ay,  ay. 

Earl  Ferrers.     IMy  lords,  there  was  «ome 
thio^  said  by  the  g'enlleman^  counsel  for  the] 
crown,  that  is  i  liille  fal*ie,  retatinuf  to  a  lea^o  I 
said  to  be  ^\\'e\\  by  sir  Witlifira  Meredith  to  Mr»  I 
.'■dinson  ;  I  did  not  know  of  that  lea<ie  previous 
to  ihis  fact;    there  were  other  matters  men- 
tioned that  are  mil  ri^ht;  I  will  nut  take   up 
your  lordships'  time  to  answer  them  now,  biit  j 
leave  that  matter  till  I  come  to  my  defenre. 

Sof.  Gen*  Mv  lords,  whatever  hia  lordship  ] 
ihmks  material  in  his  defence,  be  will  have  I 
many  op|)ortimities  to  offer. 

E.  Burgeliittd  examined  by  Mr.  SoL  Gen* 

You  was  a  raaid-aerF&nt  io  lord  Ferrers't 
home  the  11th  of  January  last?—  Yea. 

Did  you  know  one  Mr.  Johnson  ?^ — Yea. 

Do  you  know  any  thinj^f  of  Mr.  Johnson ^s 
being  employed  by  lord  Ferrers  ?    Difl  he  tia^  ' 
to  aitend  hi'm  P--'He  sometimes  attended   my 
Im-d  Ferrefs. 

Did  yoti  know  any  th'mg;  of  hit  Bemi;  ex* 
pected  to  watt  on  lord  Ferrets  at  iny  time  in  i 
January  last  ? — Yes. 

What  do  you  know  of  it  T^ I  know  he  cstnA 
to  Ihe  hoHse, 

Do  you  know  what  day  in  Jantmry? — £ 
don't  know  what  day. 

Aboitt  what  time  of  the  day  was  it?-«-Aboiif 
tliree  o'cbH;k  hi  the  afternoon. 

Dn  what  doy  of  the  week  was  itP*— On 
Friday. 

When  Mr.  Johtison  came,  who  let  Uiin  in?-^ 
I  let  him  in. 

What  dill  ho  aayf-^-He  askeil  whether  hit 
lordship  waa  wtihui;  1  told  him  be  was  in  bis 
room. 

Whut  hi^;  r  that?  Did  my  lotftl ex- 

pect lamf—i       I     '  Uedid^ 


803]  35  GEORGE  11. 

WheD  he  was  let  in,  did  vou  fro  with  him  ? — 
No ;  be  walked  up  to  the  room  door,  and 
knocked  at  it  himself. 

At  the  door  of  the  room  where  lord  Ferrers 
was  sitting? — Yes. 

Did  he  go  in  then? — ^No;  be  did  not  go 
in  then. 

Did  lord  Ferrers  speak  to  him  ? — Yes  ;  and 
told  him  to  walk  into  the  other  room. 

Do  yon  know  any  thing  of  what  passed  be- 
tween them? — I  cannot  say  any  thing  about  it. 

You  said  lord  Ferrers  expected  Mr.  Johnson, 
how  do  you  know  he  expected  him  ? — Mrs. 
Clifford  told  me  in  the  morning,  that  Mc.  John- 
son was  to  come  to  his  lordship  that  day. 

Did  you  hear,  or  do  you  know,  any  tbinfif  of 
what  passed  between*  lord  Ferrers  and  Mr. 
Johnson,  when  Mr.  Johnson  weut  into  my 
lord's  room  ? — No, 

Was  the  door  locked  or  open,  after  be  went 
into  the  room?— Locked. 

How  came  you  to  obsenre  that? — I  heard  it 
locked. 

Where  did  you  go  after  Mr.  Johnson  was  in 
the  room  with  lord  Ferrers  ? — Into  the  kitchen. 

Who  was  with  you  there  ? — ^The  other  maid- 
servant. 

What  was  her  name? — Elizabeth  Saxon; 
There  was  another  maid- servant  in  the  kitchen 
when  he  went  in. 

Who  was  she?— Elizabeth  Dolman. 

After  that,  did  you  hear  any  thing?— I  did 
not  hear  any  thing  myself. 

Did  yon  afterwards  hear  any  thing  of  what 
happened  ?  Do  you  know  whether  Mr.  John- 
son came  out  of  the  room? — 1  cannot  tell  any 
tbin^  of  it. 

Did  you  go  into  the  room  ?— I  did  not  go 
into  the  room  ;  I  was  not  out  of  the  kitchen. 

Did  you  hear  any  noise?— Ne;  I  heard  no 
noise  at  all. 

Did  you  hear  any  pistol  go  off,  or  any  noise  ? 
—I  heard  a  pistol  ifo  off. 

What  did  you  do  then?— When  I  heard  the 
pistol  go,  I  run  into  the  yard,  and  the  other 
maid-servant  with  me. 

What  happened  afterwards?— We  stayed  in 
the  yard  a  while,  a  few  minutes,  and  came 
back  to  the  wash- bouse. 

Was  the  room  door  open  after  you  heard  that 
noise?— I  did  not  stay  till  it  was  open. 

Did  you  stay  till  lord  Ferrers  came?— My 
lord  came  when  we  were  in  the  wash-house, 
and  called. 

What  did  be  say  ?— He  hooped  and  hallooed. 
Where  are  you  all? 

What  did  he  say  then?— I  went  out,  and 
sniil,  We  are  here,  my  lord ;  he  asked  me, 
Where  we  had  been  ?  1  'said,  in  the  bleacbing- 
yard. 

Did  be  give  you  any  order  ?— He  ordered  that 
we  should  walk  down  to  the  house. 

Did  he  give  any  other  order  f— He  sent  up  a 
maid-servant  into  the  yard  to  fetch  the  man  in. 

Did  he  say  any  thing  of  Mr.  Johnsou  ?— Not 
till  I  got  into  the  room. 

What  did  he  say  then  ?— He  weot  op  to  Mr. 
Jobosoo,  and  asked  how  ho  did. 


Trial  of  Earl  Ferrer9, 


[9M 


What  did  Mr.  Johnson  any  f— That  he  waa 
a  dying  man,  and  desired  he  would  send  Ibr  hk 
children. 

Did  any  thing  else  pass  ?— That  ii  all  I 
know. 

Who  eUe  was  in  the  house  besides  the  sv« 
vantsyou  have  named  and  yourself  ?—Tfaera 
was  nobody  in  the  house  but  us  three  when  Mr. 
Johnson  came;  and  but  two  in  the  kilcbca 
when  it  was  done. 

What  other  servants  did  my  lord  use  to  keep? 
—One  man-servant,  an  old  man  ;  I  dooHloiMr 
whether  he  was  a  servant. 

Did  any  other  person  live  with  him  ?— Mfi. 
Clifford,  and  the  four  young  ladies. 

Were  they  all  out  at  the  time  when  this  bif* 

ned?— Yes;  they  were  all  out  bat  the  twt 
maids. 

Were  they  out  b^  accident,  or  by  order?— I 
do  not  know  any  thing  of  any  order. 

Did  you  give  Mr.  Johnson  any  assistance  Is 
carry  him  up  to  his  room  ? — Yes  ;  I  took  Un 
up  to  bed  by  the  arm,  by  his  lordship's  older. 

By  Earl  Ferren. 

Was  not  the  door  locked  before  Mr.  Jehi- 
son  came  ?— Yes. 

Has  it  been  locked  before?— It  1 
times,  when  my  lord  has  been  upon 

Was  not  Mr.  Johnson  at  my  house  oa  the 
Monday  ?— Yes,  he  was  there  on  the  Monkj. 

Did  you  hear  any  dbpute  or  words  betweai 
Mr.  Johnson  and  me  on  the  Monday?— 1^ 
I  did  not  hear  any  at  all. 

Had  not  I  packed  up  my  trunks,  loteaiiBl 
to  go  to  London  the  week  following  ? — ^Ycs. 

On  the  Monday  while  he  was  there,  and  Mt 
to  the  carriages?— Yes. 

Mr.  Gould.  Our  next  witnesa  is  Eliabelb 
Saxon. 

Elizabeth  Saxon  sworn. 

Mr.  Gould,  Did  you  live  with  lord  Fenaf 
in  January  last? — Saxon,  Yes. 

Did  you  know  John  Johnson  ? — Yes. 

Do  you  remember  Mr.  Johnson's  comiagla 
lord  Ferrers  in  January  ? — Yes. 

Upon  what  day  ? — ^The  eighteenth. 

What  day  of  the  week  was  it  ?— On  Fridi/* 

Who  was  in  the  bouse  when  he  came?*^ 
Nobody,  only  three  maids  and  my  lord. 

What  time  of  the  day  did  he  come  ?— Abeil 
three  o'clock. 

What  was  become  of  the  rest  of  my  lord'f 
family  ?— 1  don't  know :  Mrs.  Clifford  and  tbe 
misses  were  gone  out. 

How  long  were  they  gone  out  before  BIr< 
Johnson  came  ? — About  half  an  hour. 

Do  you  know  the  reason  of  their  foisg 
away  ?—No ;  my  lord  came  into  the  sl3l* 
house,  and  said  -they  might  go  and  fetch  a 
walk. 

How  long  was  it  before  they  did  go  npoa  ika 
walk  ?— They  went  directly.  ...   ^ 

What  time  of  day  did  my  lord  gift  Ail 
leave  ? — It  was  about  three  o^clock. 

Was  any  thing  mentioiied  whara  tkev  ti<0* 
to  go  ?«-Mn.  Cliffoid  uikM  lum,  wWkir 


bing  mentioned  bow  lon^  thev 
-He  said,  tUey  tnigbt  slay   till 

If  ftti  hour  after. 

wp>aervanls  btilonj^ed  to  tbe  liouse  ? 

Mt  ODe  boy  and  an  old  man. 

Bn  ihey  ? — I  cannot  tetU 

ty  in  ibe  bouse?— No, 

fir.  JohnsoHf  came  in,  in  whftt  room 

rd  Ferrers? — In  bia  own  room. 

dill  Ulr.  JobnuoQ  go  wben  he  came 
f**Ue  vrent  up  to  my  lord's 

sppear  ?-*-My  lord  came  to  the 


Bill 

Blear 


ar  any  thing  said  by  my  lord  to 
on  ?— No. 

did  Mr,  Johnson  go  fvhrn  my  lord 
f — i\ly   hrd  cnroe  out,  and  ordered 
bto  the  ftiM-bouBe. 
ecame  of  my  lord  then  ?-*He  went 
>m. 

ig"  did  be  stay  tliere  before  he  came 
?«— I   don't  know  :    may 'he  a  few 

r;  loog  i   leo  minntes,  or  such  a 
came  out  did  he  speak  to  Mr. 
—1  dtiuU  know  that  be  did :  I  did  not 

u  see  Mr.  JohniM)D  when  my  lord 

i  second  time  ?— No. 

Bcame  of  Mr,  Johnson?   Did  be  go 

jom  with  my  lord  Ferrers  ? — 1  know 

no  my  lord's  room. 

i  diior  locked  or  not  ? — He  locked  to 

fter  Mr.  Johnson  was  in* 

[^ear  ilic  door  locked  ?— Yes,  I  heard 

Ifou  hear  pass  in  ibat  room  P— No- 
1 1  did  not  hear  ao^  thin^. 
bear  any  exprejisioii,  any  words 
Wd  to  Mr,  Johnson  ?— No. 
bear  noy  noise?— Yes  ;    I  beard 
t>ud  ;   I  heard  my  lord  Hiiy,   Down 

her  knee,  nod  decUre  what  you  have 

n^t  lord  Ferrers  ;  and  then  the  pistol 
and  I    and  the  other  maid  were 

,  and  run  away. 

I  hear  my  lord,  or  Mr.  Johnson,  say 
pore  in  ibe  room,  than  what  you 
^   if-*No. 

By  Earl  Ferrer t* 

cuitomary  for  Mrs.  Clifford  to 
!  Iiefore  #he  went  out  ?— 8he  said, 
ere  must  we  ^o  to  ? 

cnsiiomary  to  speak  lo  me  ? — Yes. 

uae  you  to  be  at  my  door  at  ib^ 

mk»  not  at  my  lonl's  door. 

U^/ietd.  Who  was  the  other  maid 
Hb  you  whrn  j?oo  oyer -heard  what 
My  lord'n  room  :'■ — S(Lron.  Tbe  other 
111  waft  livre, 

fi<tii.   Had  thai  other  servant  tbe 
Ujf  to  tictr  as  you  UmI  ?    Was 


I 

? 

i 


she  as  near  the  door,  littt'ning  in  tbe  same  way 
you  was? — Sujcon.  No,  she  was  not. 

Farl  Ferren,  Do  you  know  what  time  Mrs. 
Clirtord  wiisto  return  P — Saxon.  About  fife 
o^ctock,  or  half  an  hiiur  after  tire. 

Earl  Ferrers,  Did  not  Mrs,  Cliiftird  very 
ol>en  {TO  out  about  that  time  after  dinner,  about 
three  or  four  o*clotk  ? — Saxon,  Yes. 

By  Earl  Morton* 

Earl  Morton*  You  said  ni  tbe  first  part  ol 
your  evidence,  that  you  bi-ard  my  lord  say  to 
Mr  Johnson,  Diivvn  on  your  tiiber  kuee.  My 
lord  Ferrers  asked  you,  bow  ^ou  came  to  be 
ni'ar  tbe  door.  Yuu  isaid,  that  you  was  not^ 
Where  did  you  hear  it? — Sn:ron.  1  was  at  the 
kitchen  door :  I  was  no  nearer  than  the  kitchen. 

You  tay,  thai  lord  Ferreri  locked  his  doorl^ 
-Yes. 

Was  it  cusfomnry  for  him  to  lock  it  when 
people  were  with  bim,  or  when  he  was  alone  ? 
—I  don't  know. 

Did  you  ever  know  lord  Ferrere  lock  hi 
door  when  Mr.  Jobnsijn  was  with  him  ?**-No. 

Earl  Ferrers.  Did  you  ncrer  know  tb«| 
1  locked  tite  door  when  f  bail  company  with 
me? — Sujon.  No;  t  don't  know  that  his 
lunlship  did  it  ever  since  1  came. 

Earl  Hardwickg*  Yuu  have  said,  that  lord 
Ferrers  totd  Mr.  Johusiou  to  kneel  on  the  other 
kuee;  and  that  you  heard  it,  thouqfh  you  wj 
no  nearer  than  the  kitchen  dfior :  VVhat  dts* 
tance  n  as  there  between  the  kitchen  door  am 
the  door  of  the  roou\  where  lord  Ferrers  wasF 
— Sason,  Not  a  great  way. 

Earl  Uardwicke.    What  distance  watitl*' 
Saxon,  it  might  he  ten  or  a  dozen  yards,  may<^ 
he. 

Earl  Ferren,    W^as  there  not  a  thick  wall 
between  that  room  and  the  kite  ben,  and 
cbiraoey  ? — Saxon*  Yes. 

EUtabtth  Dolman  sworn. 

Ejcamioed  by  Mr.  Norton, 

Was  you  servant  to  lord  Ferrers  in  Januirl 
lilt  P^Ves. 

Did  you  know  Mr.  Johnson  tbe  deceased  ?>^ 
Yes. 

Do  you  remember  hia  coming  there  in  Ja- 
nnary  last? — ^Y'ea. 

What  day  of  the  month  was  it?»-Tbt 
eijilhtpenlh. 

What  time  of  the  day  f—About  three 
o'clock. 

W  ho  W3IS  in  the  hous«  of  lord  Ferrers  at  that 
lime  ? — Thrt^  maids,  ^H 

NalMnly  else  ? — No,  ^| 

Was  nt»t  bis  lordahip  there  f— Yes, 

Dn  you  know  where  tbe  rest  ot' t tie  family 
was  at  that  time?— 1  know  nothing  of  that:  I 
believe  Mrs.  CtilTord  and  the  chiidreu  were 
gone  out^ 

Do  you  know  whether  Mr.  Johnson  was  ex- 
pected' ai  lord  Fenerm^a  that  day  ?— 1  don'l 
know. 

Was  you  in  the  houjie  when  Mr.  Jo 
came  iaf**-!  was  ta  the  kitckcti. 


907]  S8  GEORGE  IL 

Who  let  him  in  P— Elizabeth  Binigfehuid. 

Who  did  he  aik  for  P-^Lord  Ferrers. 

Did  you  or  Elizabeth  Baivehmd  f  hew  him 
to  lord  Ferrera  P— Elizabeth  BaivelaDd« 

You  waa  there  P—1  was  in  the  kitchen. 

Did  you  hear  anything  that  passed  between 
lord  Ferrers  and  Mr.  Johnson  ?~-No. 

Did  you  hear  a  pistol  go  off  P— Yes. 

At  that  time  where  were  lord  Ferrera  and 
Mr.  Johnson  P—- In  my  lord's  room. 

How  long  had  Mr.  Johnson  been  in  my 
lord's  room  before  yon  heard  the  report  of  the 
pistol  P— May  be  about  half  an  hour. 

Was  you  there  when  Mr.  Johnson  went  into 
the  room  P— I  was  in  the  kitchen. 

Did  you  hear  the  door  locked  P— Yes. 

How  did  you  hear  it  P  Was  there  a  sprmg, 
•r  was  the  key  turned  P-»It  was  turned  with 
the  key. 

Did  you  hear  the  key  turned,  and  the  door 
lbekedP-Ye». 

How  soon  did  you  see  Mr.  Johnson  afler  the 
pistol  went  off  P— I  did  not  see  Mr.  Johnson 
t»M  after  he  was  laid  upon  the  bed. 

Did  you  see  lord  Ferrers  after  Mr.  Johnson 
was  laid  upon  the  bed  P— Yes. 

Did  you  hear  any  conversation  between  my 
lord  and  Mr.  Johnson  at  the  time  Mr.  Johnson 
was  upon  the  bed  ?— L^>rd  Ferrers  ordered  roe 
to  go  op  and  see  what  Mr.  Johnson  would 
bare  done. 

Then  hie  lordship  was  not  in  the  room  at 
that  thne  P— Not  then ;  be  came  m  after. 

Wlwt  passed  then  P  What  did  you  hear  be* 
tween  them  P — I  went  un  stairs,  and  asked  Mr. 
Johnson  how  he  did.  He  said,  he  was  ?ery 
poorly. 

Was  lord  Ferrers  there  then  P — No. 

How  soon  did  he  come  inP — He  dfd  not 
come  in  till  after  I  had  fetched  a  bed  out  of 
the  garret,  and  laid  it  on  the  bedstead. 

Did  you  bear  his  lordship  say  any  thing  to 
Mr.  Johnson  P — Yes ;  his  lordship  told  him, 
that  he  would  shoot  bim  through  the  head. 

Did  Mr.  Johnson  make  any  repfytothatP 
—-He  said,  No  matter  how  soon,  my  lord. 

What  time  of  the  night  was  this  P — It  might 
be  between  four  and  five  o^clock. 

Earl  FerrerM,  Did  not  I  send  yov  for  the 
bed,  and  order  it  to  be  well  aired  P — Dolman, 
Yes. 

By  Lord  Raveruwortk, 

How  long  did  you  lire  with  my  lord  Ferrers 
before  this  supposed  aocidentP — It  might  be 
two  months. 

Did  Mr.  Johnson  ever,  during  the  time  you 
lived  with  my -lord  Ferrers  before  the  18th 
of  January,  to  your  knowledge,  come  to  lord 
FerrersP — Yes  ;  1  have  seeo  him  there. 

I  should  be  glad  to  know,  whether  from 
^rour  own  knowledge,  or  from  any  conversa- 
li«B  with  others,  you  bad  any  reason  to  suspect 
or  believe  that  lord  Fenrerv  bore  Mr.  Johnson 
any  ill-will ;  or  did  his  lordship  ever  make  any 
uiiiipiaint,  to  your  knowledge,  i»  regard*  to 
Mr.  Johnson  P—J^  I  Mrevlad. 


Trml  of  Earl  Ferrers, 


[9tt 


I  At  what  time  dkl  Mr.  Johuioii  c<ime  to  M 
Ferrers  P — About  three  o'clock. 

When  lord  Ferrers  and  Mr.  Johnson  went 
into  the  room,  did  lord  Ferrers  afipear  to  bs  is 
liquor P— No,  not  at  all. 

When  you  was  in  the  room,  and  Mr.  Jobs- 
son  said  he  was  but  poorly,  did  you  imagiiM  be 
was  shot  P-— No. 

Did  lord  Ferrers  take  Mr.  Johnson  by  the 
wig,  before  he  said  he  would  shoot  him  thronrh 
the  head  P-.-Yes. 

Did  you  hear  the  pistol  go  off;  and  where? 
—I  was  in  iheysrd  ;  and  f  heard  the  pistol  ff 
off. 

By  Lord  Mansfield. 

Did  you  hear  any  part  of  the  eonvermliis 
between  lord  Ferrers  and  the  deoeased  Mil 
tlie  pistol  went  off  P — I  did  not. 

Was  you  near  enough  to  have  heard  i^  if 
any  such  conversation  had  passed  P— I  wil 
not. 

Had  Elizabeth  Saxon,  from  the  place  wliatf 
ahe  was,  a  better  opportonity  of  hearmg  «fal 
passed  P— .1  cannot  say. 

Where  waa  you  at  that  time?— I  wnii 
theyard. 

Where  was  Elisabeth  Saxon  P— I9ie  W«  u 
the  kitchen,  i  believe. 

What  was  the  distance  between  the  kifeM 
door  and  the  room  where  lord  Ferrers  aad  Ihi 
deceased  were  P— I  cannot  justly  tell. 

Might  a  person  that  was  at  the  kitcbei  Imt 
hear  any  conversatiov  or  words  which  psMei 
between  two  people  in  that  room  P-— Yes. 
Was  it  as  far  off  aa  to  that  benoh  P-'-Yei 
Earl  Ferrers.  Did  yon  ever  hear  any  esifir* 
satioa  that  passed  m  my  room,  at  aa^  te 
when  I  had  company,  and  you  was  n  tkl 
kiteheii  P— Do^sisit.  1  have  heard  talkioiif. 

Could  you  distinguish  what  was  saiu?--l 
never  took  notiee. 

A  Lord,  Was  you  at  the  kitchen  door  wbfS 
my  lord  Ferrers  and  Mr.  Johnson  were  in  hii 
T9Mm?—DolfMn.  I  was  in  the  kitchen. 

Did  you  hear  lord  Ferrers  tell  Mr.  Johoiis 
to  kneel  on  the  other  knee  P— No ;  I  heard  w$ 
such  thing. 

Was  you  with  the  other  witness  at  the  tia# 
she  sajpa  she  lieani  these  words  ?-— I  was  sot 
Lord  AlamJUld,  I  desire  to  know  of  (kif 
witness,  whether  at  the  lime  that  the  ipM 
went  off,  she  was  not  in  the  yard ;  and  the 
maid,  that  heard  the  conversation,  at  the  kitcbca 
door  ?'"  Dolman.    1  was  in  tlie  yard  then. 

Where  was  you  when  you  heard  the  key 
lock  the  door?— -I  was  in  tne  kitchen. 

Lord  Ravensworth,  You  say  you  was  in  the 
room  when  lonl  Ferrers  went  up  to  Mr.  Jobs- 
son,  and  he  pulled  Mr.  Johnson  by  the  wig,  soi 
said  he  would  shoot  him  ;  how  k>og  was  tb^ 
ft^m  the  time  that  you  heard  the  pistol  gs  off? 
'^Dolman,  1  cannot  justly  say. 

What  space  of  time  was  there,  from  tbetsfl* 
that  you  saw  Mr.  Johnson  io  the  roo«,litfctf 
twie  that  kird  Ferrerveame  and  pvIM  h^>f 
the  wig,  and  said,  be  wtmld^show  hn*  Ai«4* 


Jhr  Murder, 
N-1  cunnnt  s>}%  he  bad  laia  upon  the 

IxtiDined  by  Mr,  Pcn-ott, 

the  daughter  of  John  JohnsoD,  to 

occtfient  happened  ? —  Yes. 
Br  father  concerned  in  lord  Ferrers's 
lot  lh4t  I  ktio«r  of. 
m'ls  steivard  ? — He  did  live  with  Uinii 

Ua  these  two  years. 

reeive  any  reutsF^-For  nobody  but 

rent  any  farm  that  was  part  of  the 
►rd  Ferrers  F—Nol  that  1  know  of. 
t'emember  bis  going  to  lord  Ferrers, 
^  in  January  lost  7-<Oq  the  18tU  of 

know  wbettier  lord  Ferrers  bad 
four  father  any  abort  time  before  the 
»nuary  ?-.-Lord  Ferrers  was  at  our 
\e  Sunday  before. 

I  hear  any  runversation  that  passed 
rd  Ferrerti  and  ^our  father,  on  ibat 
d  did  not ;  L  came  home  before  he 

i  bear  lord  Ferrers  aay  any  thing  to 
Hn  ? — No  J  1  was  not  in  the  room. 
you  knoiv  bt:farp  the  IBth  of  Ja> 
^  your  fatlier  wa&  to  go  on  that  duy 
rera'aP — I  beard  my  lather  say»  that 

0  to  lord  Ferrers's  oo  the  Fritlay* 
know  upon  what  occasion  be  was  to 

lose  appointment  ?— No. 

1  airnt  fur  to  lord  FerrersV  On  the 
Suary  ?— Yes. 

tUoe?--!  tbbk  it  was  between  four 

dock. 

ki  for  you  ?«»I  belle? e  it  was  lord 

■  It  tha^t  came  for  you  ? — A  mail 

\  work  there, 

ts$Qge  wai  brought  to  you?^ — That 

ic  down  to  the  bull  to  lord  Ferrers. 

If  any  thing  said  about  your  father? 

,  what  he  wnutcd  me  fur  ?  and  he 

lUiiT  was  ulten  very  ilL 

m  ifot  Ujeie^  did  you  see  my  lord 

YVa, 

id  be  any  to  yoo  ?— I  cannot  say :  I 

bow  my  ffttl*er  was ;  he  ordered  one 

Idit  to  i;a  up  stsirSi  and  shew  me 

room  when  you  wns 
..   foUo^ved  me  up  di^ 

fStlon  did  you  ftnd  your  fstker  ? 
led^  btti  ho  did  not   ssy  any 

say  any  thing  ? — When 
itp,  he  S4id,  htt  ibougUt  he 

mt  npoa  lliat } — Some  time 

id  i  4-iTcrm  came  up  again  ;  and  1, 

ibis  clotbci  dowo  i  and  be  i^abJ^ 


A,D^  1760. 


t9ia 


ht  saw  lie  bad  shot  bim ;  and  throwed  some- 
thing out  of  a  bottle  ;  1  don 4  know  what  it 
was ;  lie  poured  tometblng  upon  it  out  of  a 
bottle. 

\V  bo  poured  that  out  of  the  bottle  ? — Lord 
FciTers. 

Did  he  tell  you  bow  the  accident  happened  f 
—He  did  not  then  say  any  thing  about  that. 

Did  heat  any  time? — He  said,  he  did  not 
know  wliat  he  had  done  ;  be  bad  shot  him ;  he 
sttitl,  it  was  what  he  desi^^ned. 

^Vas  that  the  same  day  or  afterwards  ? — Tbs 
same  day. 

Did  Lord  Ferrers  say  snv  tiling  about  your 
father's  family  ?— He  said  he  would  take  car* 
of  bis  famijy^  if  my  father  died. 

Was  that  all :  was  there  no  if  ?^IIe  said  be 
was  in  hopes  I  would  not  let  any  body  come  tt> 
take  Ikim  ;  that  be  would  take  oai^  of  the  (^ 
mily ;  that  he  uotild  not  go  out  of  tbe  bause 
till  ray  father  was  buried,  if  he  shouki  die. 

Do  yuu  know  of  any  thing  more  that  |iasse4 
between  lord  Ferrers  and  you  about  your  fa- 
ther?—My  lord,  when  Mr.  Kirklaod  was 
searching  the  wouud^  shewed  bim  which  way 
he  hekl  the  pistol  when  he  let  it  off. 

Did  lord  Ferrers  say  at  that  time  it  was  an 
accident  ? — No  ;  be  said  he  designed  it. 

Did  he  i^ive  any  reason  for  it? — I  did  not 
hear  bim  gire  any  reason  for  it. 

Do  you  know  whether  your  father  waf 
ever  serTod  wiib  any  notice  to  quit  a  farm  ?«* 
Yea. 

What  farm  was  that  P^-The  farm  he  lt?ed  u^ 

Whose  estate  was  ilf — Lord  Ferrcrs*s. 

W^ho  gave  him  that  notice?— Cilher  loi'd 
Ferrers  or  Mr.  Clifford  ;  3Ir.  Clifford  gave  it 
me  ;  they  were  both  together. 

Is  that  tlie  paper ?  (^ Paper  produced.]    Yes. 

Paper  read. 
*•  I  do  hereby  give  you  notice  to  quit  your 
farm  at  Lady -day  next  rnsuiug,  or  six  months 
after  the  date  hereof,  November  (he  7tb,  ir^Sp 
agreeable  to  your  lease  granted  to  me, 

**  RJCI1ARI>  CuFfORD,'* 

Was  lord  Ferrers  by  when  tbat  was  given  to 
you  ?«Yes, 

Did  ynu  bear  any  thing  laid  about  thai 
farm  ? — No. 

Whose  hand- writingr  in  that  P — (Shewing  her 
the  body  of  tbe  paper)  This  is  lord  Ferrers^s,  I 
believe. 

Did  you  ever  see  lord  Ferrers  write  ? — No. 

Wheo  you  was  up  in  the  room  with  Mr. 
J  oh  n  son  y  do  you  rememtxir  any  bod?  aUernpt- 
iticf  to  pull  the  clothes  off? — Lord  Ferrers  at* 
tempted  to  pull  tbeuj  off. 

What  time  was  ihat?^  cannot  say;  about 
ten  or  eleven  o*clock. 

Do  you  know  of  any  occasion  tbat  was  gtven 
hr  my  orid^s  atteniptuig  io  pull  the  clotlieaoff 
your  father?— I  cannot  say  what  was  tbe  rea- 
son of  it. 

\Vhiii  had  passed  liefore  tbatf— 1  cannot 
lelh  lord  Ferrers  seemed  ti>  be  very  angry  be- 
fore ;  but  I  cannot  tdl  wUai  &bQ\iV. 


911] 


55  GEORGE  II, 


Did  my  loril  Ferrers  pull  off  lUe  clothes  ?-* 
H^  d[«l  iJ<)(  P^ill  thetii  uff. 

How  (lid  Ibat  Imppeo  f — ^1  catcbed  bold  ol 
them. 

Do  you  reinetDber  any  tb'in^  tbat  lord  Fer- 
rers siaid  at  the  time  I  hat  he  alleiupU^c]  to  imfl 
off  the  clothes?*— He  said  he  knew  liim  to  be  a 
viUfliii)  and  that  he  Ii.id  acted  tbioirs  agaiobl 
him,  tiiat  were  oot  ri;;ht. 

Did  your  father  say  any  thinGf  to  you  about 
lord  Ferrers*s  baviog  shot  him  ? — I  dou't  re- 
member he  did. 

Did  not  vour  father  tell  you,  tbat  lord  Ferrer« 
tiad  shot  hun  ;  and  tbat  be  believed  be  should 
die?— I  heard  him  say,  be  bebeved  be  should 
die;  but  I  did  not  hear  him  say,  that  lord 
Ferrers  bad  shot  bim,  I  do  not  remember  it, 
BIy  lord  said,  he  knew  the  pistol  to  be  a  good 
ooe^  be  bud  $^iot  throug-b  a  board  with  It. 

Was  any  liody  by  wbcn  lord  Fen-era  said 
that  be  bad  shot  him,  aod  that  it  was  what  be 
desigDed  ?— Mr.  Kirklaod  \vas  by. 

Earl  Ferrers.  Do  you  think  that  I  was  sober 
when  I  came  mto  the  room  where  your  faUier 
was  ? — Johnson.  At  the  time  i  came  inj  1 1  hi  ok 
his  lordship  %^as. 

Mr,  Pcrrott,  At  the  lime  of  this  confessioD  ? 
^Juhnson.  I  caniiot  tell :  I  think  he  was  not 
quite  sober  wlien  be  said  tbat» 

Lord  Talbot.  1  belie?e  the  coo  fusion  of  this 
unbappy  witness  has  occasioned  an  Jipimreiit, 
ihougb  oot  an  iuLentional,  variation  in  ber  eri> 
deuce;  therefore  1  desire  she  may  he  asked 
again  about  the  farm. 

Mr.  PerrotL  Did  you  know  of  your  father's 
renting  a  farm  of  lord  Ferrers  ? — Johnson.  He 
rented  no  farm  but  what  be  bad  of  lord  Fer- 
rers. 

Mr.  Pcrrott.  And  did  be  rent  one  of  him  ? — 
Johnson,  Yes, 

Mr,  Ferrott.  You  was  asked  at  first  about 
tbe  lease ;  he  might  have  tbe  tiirm  and  not 
the  lease, — Jtthnson.  He  bad  a  lease  j  but  i 
beliere  he  had  it  but  the  last  year. 

Lord  Havemuorth,  I  agree  with  the  noble 
lord,  tbat  there  is  a  particular  tenderness  ia  the 
fiiluation  ttf  this  witness  ;  but  imagine  your 
lordbbios  are  desirous  of  knoviing^  as  many 
particulars  as  may  be  relating  to  this  unhappy 
affair  ;  therefore  I  desire  this  witness  may  be 
usketl,  whether  sbe,  at  any  time,  near  tbe  ttme 
of  llic  decease  of  ber  father,  did  hear  her 
father  express  any  degree  of  uneasiness^  or  op- 
nrebeosionf  from  his  beinor  to  wait  upon  lord 
Ferrers? — Johmon,  No,  i  never  heard  hioi 
tay,  that  be  was  afraid  of  going  to  lord  Fer- 
rers's. 

AtL  Ccn^  My  lords,  we  will  now  call  Mr. 
Curzon  to  prove  the  body  of  the  notice  that 
has  been  read,  to  be  all  ot  lord  Ferrer&^a  baoil- 
writine". 

Earl  Ferrers,  I  do  not  tleny  it,  I  hope  the 
witnesses  may  be  detained  by  your  lord'^hips, 
in  case  I  should  think  proper  to  call  ihttn 
ftgain* 

Aii*  Gen*  My  lortl^  we  will  take  care  tbat 
th^y  ihali  be  forthcoiiiiti^* 

a 


Trial  (/Earl  Ferrer^  [BK 

Thotiidt  Kirkland  swont, 
Esamiual  by  Mr.  Attartify  Gmurai, 

What  is  your  profession,  or  ooetipalioii ?- 

surtfeou. 

Where  do  you  chiefly  practise  f — At 
dc  la  Zoucb, 

Hiiw  far  is  that  frona  lord  Perrers't  botnti 
Stanton  .'-*Two  computed  miles. 

Uo  yon  know  the  uoble  earl  at  tbe  birr-< 
Yes, 

How  long  have  yon  kuuwn  him?^«I  I 
known  him  many  years.  1  have  been  \ 
ployf'd  for  his  lordship  about  nine  yeai'S. 

Did  you  know  Mr.  Johnson  the  deceased?*-! 
Yes. 

How  long  did  you  koow    him  ?  — 1 
known  him  a  great  many  years,     I  liarel 
intimately  acquainted  wiuj  him  ten  or  eUfti.^ 

Had  be  any  employ  under  my  lord  Fe 
or  any  part  of  Ids  family  ? — I  believe  99l 

UTml  was  hisennploy  ?"- Stevranl. 

Did  you,  in  the  month  of  Januarv 
Mr.  Johnson  or  my  lord  Ferrem  ? — I  i 
together. 

At  what  time  in  that  month  in  partlculirfJ 
The  latb  of  January. 

What  day  of  the  week  ? — Oo  Friday, 

Upon  what  occasion  did  you  see  Uie  ooti 
the  other?— 1  saw  Mr  Johnsoci  to  t:ike  can 
a  wound  be  had  received  m  bts  leA  side. 

Who  sent  for  you  ?— They  told  me  tha  I 
Ferrers  had seotfor  me. 

Who  was  sent  for  you  ?      What  was 
name  ? — I  have  since  found  lliat  bis  otiac  f 
Henry  Wales. 

At  whrit  time  did  you  receive  that  me 
—About  five  o'clock  tu  the  afternoon. 

Where  was  you  at  that  time  ? — ,\i  Ca)e 

Uow  tUr  is  that  from  Stanton  f — A  milt  i 
a  half,  or  a  mile. 

Did  you  go  directly  to  Stantoo  ? — 1 
6rst  to  tlie  Lount, 

What  place  was  that? — The  place 
Mr.  Johnson  lived. 

How  far  is  that  from  StantOD  ? — I  think  I 
a  mile,  or  it  may  be  a  little  more. 

Did  you  hear  any  thin^  thei^f^-I 
heard  at  tbe  Lrount,  that  Mr.  Johnson 
shot ;  tbe  boy  that  came  for  me,  lohJ  tne 
be  was  sent  to  me  from  my  lard. 

Did  you,  when  you  came  to  tbe  Lounl,! 
bad  had  this  intelligence,  proceed  to  St 
— Yes. 

When  you  came  there,  who  did  yoa  §««-'•« 
1  met  one  of  the  servant  girls  iti  tbe  close  i 
to  tbe  yard. 

What  was  the  girPs  namef«*^I  eatiuot  t^i 
it  was  dark. 

Did  an^  tbinfi;'  pass  there? — She  satd  my  I 


had  been  charging  guns  and  r»istuts. 

N- 1   heard  my  wn 
calling  out  in  theyard^  Who  is  there?    I  iiB^ 


W^bat   happened    next  r 


mediately  spuke  to  his  lordship;  he  anferf^l 
mo  to  come  along.  I  went  to  him  ;  he  M I 
n>e,  be  tiad  shot  Johnson,  and  desirrtl  I  wowN  1 
go  and  take  care  of  him.     As  vrc  weal  alo:>^%  j 


Jar  Murder. 

rilshiii  detlreJ  I  would  not  sutTer  hiffi  to 
Eeilf  liecaose  JoIid&ou  was  not  d^nd  ;  atjd 
*  noy  body  offered  lo  teize  him,  be  would 
boot  ib«ni. 

What  nniwcr  did  vou  make  to  Ihat? — 1  told 
b  lord«hip»  tlmfc  Dor»ody  shotilJ  meildle  with 
jiD.  I  th^Q  went  up  stairs ;  aod  upon  ^eetnj; 
In  Johtisett,  and  that  he  had  tost  no  blood,  1 
leil  liim. 

Did  fllr.  Johnson  make  any  complaint? — 
le  compTatned  of  a  violent  pain  in  hi^^  Imvvels. 

Did  he  at  that  time  say  that  he  had  received 
ny  wound f  and  where  %vas  it  ?— 1  looked,  and 
i>uud  lire  wound  beluw  the  loTrest  rih^  on  his 
eA  Mde. 

How  larjfe  was  that  wound  ?— I  put  my  little 
iugcr  intrt  it.  I  thc-n  took  %  director  to  ^arch 
be  wound.  My  lord  told  rae»  Mr.  Rirklaud, 
'ort  aiu«t  pass  your  iriatrument  shtntlng*  dowu« 
iAfd%,  I  htftd  tiiepistul  iti  this  manner  when  I 
bothiin.  After  that  my  lord  asked  fiie,  whe- 
ber  1  could  find  the  hull?  1  said  No,  it  wa4 
od|fed  in  the  ubdomen  ;  nod  afier  this  he  ai^ain 
iskMl  roe,  if  f  could  not  extract  it  P  I  told  hii 
ordnbip,  1  helieved  it  would  he  belter  to  remain 
there  it  was  (indeed  I  looked  opon  it  iinprac- 
ioable  to  extract  it,)  My  lord  aakc'd  me  theUf 
irbat  wouhl  he  the  consequence  of  the  biiiru 
iyifi^  in  the  ahdomen  f  I  (olil  him,  that  balls 
>fUn  lay  there  many  years,  w  ilhout  giving  any 
iislurbance :  with  this  my  lord  seemeil  «atis- 
fiwl,  and  said,  he  knew  they  would. 

Was  there  fiwy  surprize  espresscil  by  any 
Mv  at  the  ball's  being  lodged,  or  any  tbin|^ 
nidi' — f  connot  say  (here  was. 

Waa  any  thincf  said  concerning^  the  goodness 
(•ftbe  pistol?— -Sly  lord  asked  me,  if  the  bull 
M  not  gone  through?  I  told  him  No.  He 
Mid,  he  wondered  it  had  not;  tor  thin  pistol 
b*d  carried  a  hall  thr»ti£rh  a  board,  and  broke 
Ibehricki,  or  wiill,  I  don^t  know  which. 

Wjis  Mr.  Johnson  by,  and  did  he  hear  what 
piweilf— Ye?i,  he  did. 

Did  tluH  provoke  him  to  utter  any  thing  ?— 
H*  did.  My  lord  went  out  of  the  room  at  that 
^«  md  Mr.  JohntHiD  said,  What  a  villaiu 
fttista! 

Did  you  orflcr  any  thinif  to  be  prepared  far 
Hie  drcMing  of  the  woumt? — [  dressed  the 
^Qnd  ;  it  had  alieiidy  been  dre«sed.  There 
^ia  dresHiiitr  upon  it.  f  ordered  a  fom«!nta- 
l»B,  and  what  othir  ihinj^H  I  th-niijht  pro|>er, 
I  thro  went  down  ittiirs.  My  lord  told  me,  he 
iJiou^^bt  JuiiiiiAon  was(  more  tri^htcd  ihan  hurt. 

flnf  you  both  go  down  stairs  ? — No,  we  did 

Vou  said  it  had  been  ilressed  before,  what 
^U  thai  dreMingP^I  helicn«.  though  1  am 
^certaiu,  it  was  arquehustule, 
l|J|£tti  there  any  pluister  fuund  upon  it  ? — To 
^^pit  of  my  remeinhmnce  there  was  not. 
Pms  there  a  rnp  upon  it?— I  believe  there 
1^1 ;  a  rat;  thui  had  Ijeen  dipt  in  ar^iuebusade, 
Afirf  tt(v  limi't  ttlliiiif  nie,  that  Johnson  was 
!^i*in  hurt,  he  said,  he  intended 
114  dead,  and  that,  seeing  he  did 
kit  at  tiMt,  he  intended  to  ihoot  him  again ; 
IL.  XIK. 


A,  D,  1760.  [914 

but  the  pain  he  complained  of  made  him  for- 
bear. Says  he.  There  nature  did  take  place, 
in  opposition  to  the  resolution  I  had  formed. 
And  says  he,  It  is  oruel  not  to  give  him  ease, 
now  1  have  spared  his  life ;  therefore  I  desire 
vou  would  do  all  you  can  for  him.  One  thing 
1  omitted  to  mention,  nhile  t  was  up  stairs. 
My  lord  desired  I  would  take  all  the  care  ima* 
ginable  of  Mr.  Johnson^  that  he  would  seud 
one  of  his  servants  for  any  thing^  I  wan  ted  .^ — I 
forgot  to  relate  to  your  lordships,  that  my  lord 
was  in  liquor  when  I  saw  him.  He  de^ircrd^ 
when  I  spoke  of  this  affair,  that  T  would  not 
say,  though  he  desired  me  to  ease  him  of  hta 

faiD,  that  he  repented  of  what  he  had  done. 
Je  was  not  sorry  for  it ;  for  he  owned  it  waa 
premeditatetl;  that  he  intended  to  shoot  htmi 
for  he  said  he  was  a  villain,  and  deserved  death. 
But,  says  he,  as  he  ts  not  dead*  1  desire  yoa 
will  not  suffer  my  being  seized  ;  for^  if  he  dies, 
I  will  cfo  and  surrender  myself  to  the  Douse 
of  Lords:  1  have  enough  to  justify  the  action: 
perhaps  they  may  not  excuse  me,  but  it  will 
satisfy  my  own  conscience. 

Did  he  say  any  thinp:  about  his  going  awtiTt 
or  not  going  away,  the  next  morning? — \\n 
told  me  thus  :  Kirklaud,  be  sure  you  don't  go 
away  in  the  morning  before  I  have  seen  you, 
1  will  get  up  at  four  o'clockf  or  at  any  time 
that  vou  call.  I  totd  his  tordship  1  would  let 
him  know  before  I  went. 

What  particular  compUiot  did  Mr.  Johnson 
labour  under  when  you  went? — A  pain  in  hi« 
i>owels. 

What  other  complaints  had  he  ? — A  atron* 
gory.     A  difficulty  of  making  water. 

\Vhat  dill  my  lord  Ferrers  nay  upon  that  ? — . 
He  a^ked  me :  *<  Kirklaud,  don't  you  think  thai 
the  bladder  or  kidneys  are  wounded?^'  And 
what  would  be  the  conse(|uence?  I  set  it  in 
fiucli  a  light  lui  to  make  him  believe  that  thej 
might,  and  no  bad  conhetiuence  ensue. 

Was  that,  or  was  it  not,  your  ride,  upon 
which  yon  represetiied  things  in  this  light  ?^> 
I,  immediately  from  the  time  of  my  seeiog  Mr. 
Johnson,  thought  he  woutd  be  dead  ;  but  I 
thought  tt  prudent  to  deceive  my  lord  tor  our 
safety. 

Was  my  lord  sattsRed  with  this  flattering  »€• 
cou  nt  that  you  gave  ? — ^ Yes,  he  seemed  satii^liefl. 

Were  any  orders  given  to  get  thingn  in  rea- 
diness? any  orders  for  the  horses? — I  don'l 
know  any  thing  hut  what  the  servants  told  me. 

Did  any  dii^course  pass  between  you  reltiting 
to  their  seizure  of  niy  lord^s  penou  ? — My  lord 
did  desire  that  I  would  take  care  he  woa  not 
seized,  and  1  promi^eit  him  I  would. 

Did  you  tell  him  how  you  meant  In  repre- 
sent it  f — My  lord  asked  me,  what  f  should 
say  upon  the  occasion^  if  1  was  called  upon  ?  I 
told  his  tordship  that  1  should  say,  tliat,  though 
Mr.  Johnson  was  shot,  yet  there  wai  a  great 
probability  of  his  recovering;  and  that  I 
thought  there  vi^n  no  necessity  of  seizing  his 
lord«<bip.  His  lonkhip  then  o&ketl  me,  if  I 
would  make  oiith  of  that  before  a  justins  nf  lU« 
peace,  if  I  was  called  upon  ?  I  w^^  Ye«. 

SN 


915] 


SS  OEOROlB  11. 


^herewutbit?  And  about  wliitt  |mrt  of  the 
Digbt  did  the  last  conTenation  paasP — ^It  was  in 
tbeparlour. 

lYbat  time  was  it?  Was  it  an  lionr  b^fbre 
irapper? — ^1  think  this  was  before  supper ;  but 
it  was  repeated  before  and  after  supper. 

Did  my  lord,  in  this  discourse,  say  anything 

Slatinff  to  Mr.  Johnson  ? — fie  torn  me,  that 
:r.  Johnson  had  long  been  a  villain  to  him. 
He  said,  he  began  his  villainy  in  1753 ;  that  he 
ftssisted  in  procuring  the  act  of  parliament; 
that  he  was  m  the  interest  of  his  enemfes; 
that,  on  Mr.  Johnson's  first  coming  there  in 
the  afternoon,  he  ordered  him  to  settle  an  ac- 
count. He  then  told  him,  Johnson,  you  have 
been  a  villain  to  me ;  If  von  don't  sign  a  pap^r, 
confessing  all  your  vifiainy.  III  shoot  you. 
My  lord  told  me  Johnson  would  not  sign  one. 
Therefore,  says  he,  I  bid  him  kneel  down  on 
bis  knees  to  ask  my  pardon.  1  said,  Johns|bn, 
ifyou  have  any  thins  to  say,  apeak  quickly. 
Then,  says  he,  I  fired  at  him.  1  know  he  did 
not  think  I  would  have  shot  him ;  but  I  was 
determined  to  do  it.  I  was  quite  cool.  I  took 
aim ;  for  I  always  aim  with  a  pistol  in  this 
manner. 

Did  any  thing  pass  in  reference  to  the  farm  ? 
—My  lord  told  me  he  had  long  wanted  to  drive 
Johnson  out  of  his  farm ;  and  that  be  imagin- 
ed, after  he  recovei*ed,  he  would  go  into  'Che- 
shire, from  whence  he  came,  and  give  him  no 
more  idistuf banco.  He  said  he  bad  long  in- 
tended to  shoot  him  :  that  the  chief  reason  he 
did  it  at  this  time  was,  an  affair  between  Mr. 
Ourzon,  Mr.  Bnrslem,  and  his  lordship.  But 
the  greatest  part  of  this  discourse  was  at  the 
time  that  my  lord  was  full  of  liquor. 

Was  he  so  full  of  Uquor  as  to  be  deprived  of 
his  understanding? — ^i  think  not;  beseemed 
to  understand  very  well  what  he  did. 

Was  he  in  liquor  when  you  first  &aw  him  ?— 
Yes ;  not  much. 

Did  he  continue  drinkiof^  during  the  time 
you  saw  him  ? — He  was  drinking  porler ;  they 
said  it  was  porter. 

Did  you  go  to  Mr.  Johnson  again  ?— Yes ; 
after  supper  I  went  up  stairs  to  Mr.  Johnson  ; 
nothing  material  passed ;  but  my  lord  enquired 
what  I  thought  of  Air.  Johnson ;  and  upon  my 
setting  things  in  the  light  1  thought  I  should, 
my  lord  seemed  very  well  satisfied. 

Was  an  V  thing  said  about  the  bowels  or  guts? 
—My  lord  asked,  if  the  bowels  were  wounded, 
what  would  be  the  consequence?  I  said,  some 
had  had  wounds  in  their  bowels  and  recovereil. 

Thei-e  was  an  expression  used,  that  the  bullet 
was  lodged  in  the  abdomen ;  was  that  your's 
or  iny  lord's  expression  ? — It  was  my  expres- 
■ion. 

Did  you  and  my  lord  sit  together  in  the 
evening? — Yes. 

Was  any  wine  brought  ?— Yes ;  Mrs.  Clif- 
ford brought  a  bottle  of  wine,  and  then  his 
lordship  again  repeated,  that  he  had  shot  John- 
son, and  that  he  intended  it. 

Was  there 
relative  to  my 


any  thing  passed  between  you 
lord's  circumstances  ?^A  little 


Trial  ofEuH  Ferrerg,  [916 

befbre  he  went  to  bed,  beforls  1  trent  to  Mr. 
Johnson  the  last  time,  my  lord  s»d,  Ktikland, 
I  know  yon  can  set  this  affkir  In  soch  a  ^gbt, 
that  I  shall  not  be  seized  if  yoa  will ;  I  owe 
you  a  bill,  you  may  have  some  of  yonr  iftotey 
now,  and  the  rest  when  yoa  want  it ;  I  told  hn 
lordship  1  did  not  want  money,  I  should  be 
glad  to  receive  it  when  it  was  most  oonvenSart 
to  him. 

Did  you  afterwards  tee  my  Ibrd  and  Mr. 
Johnson  together  P— Yea. 

What  passed  ?— My  lord  went  np  to  the  bed- 
side, and  spoke  it  temperately ;  Johnson,  yoa 
know  you  have  been  a  villain  to  me ;  Mr.  jAo- 
son  made  no  answer,  but  desired  my  lord  to  let 
him  alone  at  that  time :  my  lord  sept  caffiaf 
of  him  villain  ;  his  passion  rose,  and  lie  bcgu 
to  pull  the  bed- clothes,  and  akid.  Have  yon  not 
been  a  villain  ?  Mr.  Johnson  said.  My  Idd,  I 
may  have  been  wron^  as  well  as  others :  lipln 
this,  my  lord  run  up  m  a  vkilent  passton  totk 
bed-side,  I  thought  he  would  have  struck  hfai; 
but  upon  Mr.  Johnson's  declaring  be  migbt 
have  been  a  villain  to  bis  lordship,  my  M 
weiit  to  the  fireside. 

How  came  Mr.  Johnson  to  make  that  *• 
swer? — I  winked  at  him,  and  he  made  then- 
swer. 

Was  Miss  Johnson  in  the  room  N-T^  B|f 
ford  went  to  her,  after  he  had  abused  her  t 
ther,  and  aaid.  Though  he  has  been  a  viQik 
to  me,  I  promise  you  before  Kirkland,  who  I 
desire  to  oe  a  witness,  that  I  will  take  cai^  rf 
your  family,  if  you  do  not  prosecute. 

Did  my  lord  ^  out  of  the  rooni  P— YH; 
he  went  down  stairs ;  he  sent  for  kne,  and  (flM 
me,  he  was  afraid  he  had  made  MisiJ  JohsMi 
uneasy ;  he  desired  I  would  tell  her,  be  wssil 
be  her  friend :  we  came  up  stairs  together;  kii 
lordship  asked  at  the  top  of  the  stairs,  wbcAcr 
1  thought  Mr.  Johnson  would  recover :  I  re- 
plied, Yes ;  he  said,  then  I  may  go  to  bed  ii 
safety  ;  he  went  to  bed  directly. 

What  passed  after?— The  first  thing!  did  I 
went  to  Mr.  Jolinson,  who  desired,  for  God^ 
sake,  that  1  would  remove  him;  whiles 
were  talking,  I  heard  my  lord  open  the  dsff) 
and  call  up  his  pointer:  Mr.  Johnson  wsit 
good  deal  alarmed  at  it,  fearing  my  lord  dhosM 
come  again  ;  but  my  lord  shut  the  door;  fhci 
he  again  intreated  me  to  remove  him. 

Was  any  proposal  made  to  remove  him  k- 
fore  that  ?— Yes  ;  Mrs.  Clifford  came  down  be 
fore  that  into  the  still-room,  and  said,  OansA 
Johnson  be  removed  ?  My  lord  replied,  No,  be 
shall  not  be  removed,  till  he  be  either  better  V 
dead  :  and  some  time  after  that  he  said,  be  M 
glad  be  had  him  in  the  house,  that  be  ceol 
plague  the  rascal ;  or  some  such  words. 

Why  did  you  pro|>ose  to  remove  himP-'I 
thought  it  prudent  for  many  reasons  to  resMVi 
him ;  I  imagined,  Mr.  Johnson  wouM  dit; 
and  if  my  lord  came  and  found  him  dying,  bik 
resentment  would  rise  against  me;  ■—=■*- 
Mr.  Johnson  was  in  a  good  deal  of  a| 
sion  of  being  again  shot;  I  reallv  appi 
he  might  die  through  fetr,  for  lie  wai  i  ■■■ 


Jqt  Murder* 

very  weak  constitution  ^  upoo  tliii  I  went 
^l.iMini  iinil  got  a  parcel  of  fdlows,  anil 
^^»D  id  ail  easy  cbuir,  and  car- 
jtoles  to  the  Louitt,  ivbere  ke 
botit  beinor  tuucb  tlitig^uetl. 
rjno  apprfb^Qit  fhnt  the  moTiDg  would 
Hdicial  hi  him,  <  4'  ibe  ctmditirm 

iq? — It  is  itik|  u  say  it  rni^ht 

at  there  was  mucli  more  diingcr  in 
him  at  Staatoa  ;  and  be  expressed  sa- 
011  luy  removing  liim:  when  he 
e,  he  desired  he  might  be  remove*] 
ae  room  where  he  vias,  inlu  another ; 
le  said,  tny  lord  miicht  come  and  shoot  him 
lalhe  witidow  was  faciu^  the  bed  ;  1  told 
Wb  raigUi  make  himself  easy,  I  \vou1d 
Reentry  at  each  door. 
what  lime  waa  Mr.  Johnson  removed  f — 
ifjve  about  l%*'»  (rctot  k  in  the  morning  ;  I 
lOt  ouiie  cerl  '  siunr. 

r  lowg  did  lir   ,.     ,  u  r  that? — He  lived, 
ioformedi  tiU  about  oiue ;  1  did  not 
I  till  seven  o^clock. 
bat  condilion    was  he  when  you   left 
Weak  and  lo>r,  and  cold  iu  the  ejctre- 

wia   voar  judgment  about  him  ? — 
\  would  be  dead  ;  hethougUtao  himself, 

happened  after  he   wiis  dead? — No< 
ore  than  my  examining  the  body, 
t  did  you  do  upon  that?—!  examined  it 

day  wheu  the  ooroner'a  inquest  was 

^ou  give  an  account  of  the  wound  f — 
1  bad  p;i<<sed  jnst  tmder  the  lowest  rib, 
iff  iiide^  throuifb  one  of  the  guU,  and 

a  bone  we  call  the  *  oa  inominatum,^ 
1  in  the  bone  called  the  *  os  sacrum.^ 

I  apprehend  that  Mr.  Johnsoo  died  of 
BudP — I  do-,  I  am  clear  in  it. 
|fuu  there  when  the  earl  was  seized  f — 
pt  I  I  went  to  ask  advice  what  wai  to 

By  Earl  Ferren, 

aid  that  when  I  asked  you  to  extract 

IF,  that  it  was  lodged  in  the  abdomen , 

hat  1  wondered  at  it* — That  question  wai 

ItNffore  I  told  your  lord»hip  it  was  lodged  ^ 

leoibcr  the  question  was  asked. 

1  tohl  you  }  had  shot  it  thfout;h  a 
it  not  mentioned  with  surpriae  P — 
rixe  seemed  to  be^  that  it  bad  not  also 
bugh  the  matt, 

\  time  that  we  were  talking  this  over  a 

wine,  did  you  tatk   with  me  as  a 

rdid  you  intend  to  betray  me? — I  do 

f  Ion],  that  t  intended  to  deceire  yoo ; 

>iigbt  it  absolutely  neeewary. 

bu  iutend  to  give  this  in  evidence  P-^ 

^lioutd  be  called  upon  on  this  oc- 

j  you  not  take  advantage  of  my  being  in 
■"  -No,  I  could  not,  my  lord  ;  what  yoa 
lii|titt«  voluntary. 

I  had  come  to  a  resolutioo  to  do 
3y  f — I  do  tiot  reioeiuber. 


A.  0.  1760. 


[918 


Did  you  never  hear  me  ny^  that  [  did  not 
ioteod  to  kill  him  P— Vour  kirusbip  did« 

A  Lord.  Did  you,  at  any  time,  bear  Mr* 
Johnson  say,  that  lord  Ferrers  had  shot  liim  ? 
— Kirkhnd,  As  soon  as  Mr,  Johnson  had  got 
home,  I  said  to  him,  Was  my  ford  in  liquor 
whi^n  lie  shot  you?  He  was,  when  I  first  saw 
him.  Mr.  Johnson  said,  No,  he  was  not:  [ 
imagined  he  got  what  trquor  he  had  afterwards. 
I  did  not  thiuk  he  would  have  shot  me.  1 
tliought  be  only  wanted  me  to  sign  m  paper* 
I  asked  him,  Was  you  down  on  your  knee 
when  my  lord  shot  you?  He  said,  I  think 
when  my  ford  shot  me  1  was  rising ;  though  i 
cannot  be  sure  whether  I  was  or  not,  being 
hurried. 

By  Mr.  Att,  Om. 

At  tlie  time  of  this  relation  of  Mr,  Johnaou^f, 
was  any  other  person  present?— No,  there  wai 
oone  ;  we  were  by  ourselves  iu  the  room. 

Did  you  hear  my  lord  say  to  Miss  Johnsoiij 
that  he  would  take  care  of  them? — Yes,  I 
heard  my  lord  say  so  to  Miss  Johnson. 

He  said  to  you,  t  owe  you  a  bill  ? — My  lord 
said.  You  can  »ei  this  matter  right :  if  you  d(|, 
J  owe  you  a  bill ;  you  may  have  some  money 
now,  and  the  rest  when  you  want  it. 

Did  you  ever  hear  Mr.  Johnson  express  anj 
apprehension  of  my  lord  Ferrers? — Mr.  Joho^- 
sou,  in  conversation  at  di^ereut  times,  has  said 
to  me,  he  did  not  think  my  lord  Ferrers  woald 
do  hi  many  harm. 

Lord  Ttilbot.  My  lords,  this  wituets  baa  toltl 
you,  that  in  one  of  his  conversations  with  lord 
Ferrers  his  lordship  declared,  that  he  did  not 
intent]  to  kill  Mr.  John«»ou ;  and  also  that  lord 
Ferrers  shewed  him  the  po  si  lion  in  which  he 
held  the  pistol,  when  his  Jordiihip  thought  the 
instrument  went  wrong,  as  Mr.  Kirkland  was 
probing  the  wound  ;  1  would  ask,  whether  the 
conversation  was  previous  or  subsequent  to  the 
probing  the  wound? — Kirkland,  He  told  me^ 
before  I  entered  the  director  into  the  wounds 
You  must  pass  it  in  that  mauner.  The  other 
conversation  was  subsequent  to  this. 

Lord  Taltoi,  Do  you  believe  that  hia  lord- 
ship's shewing  the  position  of  the  pistol,  ia 
order  to  acquaint  you  with  the  direction  of  tbtt 
ball,  was  with  an  intention  to  facilitate  your 
operation?— K*r/(/an<rf,  1  believe  it  was. 

By  Mr.  Attorney  General, 

Did  he  appear  in  liquor?— He  was  io  liqyofj 
at  first ;  but  it  got  more  upon  him. 

As  that  unhappy  fury  ro«e,   the  more  Irquo 
he  had,  the  more  he  seemed  to  persist  in  iht 
action  P**-Y€s. 

But  when  he  was  calmer,  itt  his  betters 
be  said,  he  did  not  wi>h  to  kill  him  ?— No; 
said  at  (irst,  that  he  intended  to  kill  him. 

A  Lord.  When  he  told  you  the?  direction  of 
ihe  i^alL  did  he  itotm^an  that  temlerjy,  to  assist 
Ih^  uuforti|u»tc  mou  ?-^Kir A'/arj^  1  look  it, 
that  be  w,>^i  dir(;qting  me  tu  euquirr  auo  the 
nature  of  tJjcvyQumh 


919]  33  GEORGE  IL 

Could  he  direct  you  with  iny  other  view 
than  to  assist? — I  remember  when  I  told  my 
lord  the  ball  could  not  be  extracted,  he  said,  I 
do  not  intend  to  direct  you  ;  pursne  yonr  own 
method,  and  do  the  best  you  can  for  him. 

You  mentioned  that  he  sent  to  you  f — ^Yes. 

By  Lor  J  Mantfield. 

You  have  said,  that,  from  the  first  to  the  last, 
lord  Ferrers  told  j^ou,  that  he  designed  to  kill  the 
deceased  ;  now,  in  answer  to  a  question  Utely 
asked,  you  say,  he  said,  he  did  not  intend  to  kill 
him ;  upon  what  occasion  did  he  say  that  ?— 
I  think  we  sat  by  the  fire  in  the  still-room,  but 
I  am  not  quite  certain,  and  his  lordship  said,  that 
he  did  not  intend  to  shoot  him  dead ;  I  intended 
only  to  make  him  smart,  and  shoot  him  into 
the  hip,  or  side. 

Could  such  a  wound  as  this  be  given  to  a 
man  without  a  certain  hazard  of  his  life  ?— It 
was  certain  death  to  such  a  constitution  aa  Mr. 
Johnson's. 

How  long  after  this  time  was  it,  that  he  told 
Tou  that  you  could  set  that  matter  right?— 
He  mentioned  it  at  the  very  bMrinning,  and  se- 
veral times  after,  till  the  end  ofthe  evening. 

Did  your  fear  of  lord  Ferrers  arise  from  his 
being  in  liquor?—!  should  not  have  been  afraid 
of  lord  Ferrers  if  he  had  not  been  in  liquor ;  I 
thought,  if  he  had  found  Mr.  Johnson  had  died, 
that,  as  I  had  deceived  him,  I  should  have  had 
bis  resentment. 

Did  you  see  lord  Ferrers  in  the  morning?— 
No.    I  did  not. 

Mr.  Springthorpe  sworn. 

Mr.  Gould.  My  lords,  we  call  this  witness  to 
give  an  account  of  the  manner  of  seizing 
lord  Ferrers,  and  what  passed  upon  that  occa- 
aion.  «> 

Examined  by  Mr.  Gould. 

Was  you  present  at  ihe  time  of  toking  lord 
Ferrers?— I  was. 

What  day  was  itf—On  Saturday  morning. 

What  time  in  the  morning  ? — I  believe  it  was 
between  ten  and  eleven  o'clock. 

Had  you  a  multitude  of  people  with  you? — 
The  first  part  of  the  time  1  bad  not;  but  before 
he  was  taken  there  were  a  great  many. 

Was  you  armtjd  ?— 1  had  a  pistol  I  took  from 
Mr.  Burslem's. 

Where  did  you  go  first?— I  went  to  see  Mr. 
Johnson  ;  he  was  my  friend,  and  I  found  be 
was  dead.  Mr.  Burslem  desired  I  would  go 
and  help  to  take  lord  Ferrers:  J  condescended 
to  do  it.  When  I  came  to  the  hall  yard,  my 
lord  in  a  few  minutes  came ;  he  seemed  to  be 
going  to  the  stable,  with  his  stockings  down, 
and  Ins  garters  in  his  hands  ;  his  lordship  see- 
ing roe  demanded  to  know  what  I  wanted.  I 
presented  my  pivlol  to  bis  lordship,  and  I  said 
It  was  he  1  war.teil,  and  I  would  have  him  ;  he 
put  his  hand,  whether  he  was  going  to  put  his 
garters  mto  his  pocket,  or  to  pull  out  a  pistol,  I 
cannot  say ;  but  he  suddenly  run  into  the 
hetise.  I  nevtr  saw  more  of  him  for  two  hours ; 
m  mul  two  hoiirf  he  cimo  |o  tho  gimt  win- 


Trial  of  Earl  Ferrertt 


[920 


dow ;  I  went  under  the  wmdow  ;  be  called;  I 
asked  him  what  he  wanted ;  be  said.  How  is 
Johnson?    1  said  he  was  dead;  beaaid,  Yoa 
are  a  lying  scoundrel,  God  damn  you.    I  told 
him  he  was  dead ;  he  said,  I  will  not  believe  it 
till  Kirkland  tells  me  so.    I  said  be  was  dead ; 
be  said.  Then  disperse  the  people,  and  I  wil 
go  and    surrender :    let  the  people  b,  and 
let  tliem  have  some  victuals  and  drink.    1 1»M 
him  I  did  not  come  for  victuala,  but  for  bio^ 
and  I  would  have  him.    He  went  away  inm 
the  window  swearinsT  he  would  not  be  takm. 
Two  hours  after  that  there  was  a  report  tbtt 
he  was  upon  the  bowling-green ;  1  was  at  tiM 
part  of  the  house :    I  run  there,  and,  by  ik 
time  I  got  tliere,  1  saw  two  colliert  bni  kM 
of  his  lordship.     I  said,  1  would  take  care  m- 
body  should  hurt  him.    I  took  from  a  maa  ibit 
had  bold  of  him,  a  pistol  and  a  powder-bon; 
1  shot  the  pistol  off,  and  it  made  a  great  im- 
pression against  the  stones.    I  beartrDThd 
say,  he  had  shot  a  villain  and  a  soouDdrel,  mdt 
clapping  his  hand  upon  his  bosom,  bo  ssii,  I 
glory  in  his  death.    That  is  all  1  know  sf  Ik 
matter. 

Francis  Kinsey  awom. 

Examined  by  Mr.  Norton, 

You  keep  a  public-house  at  Ashby  de  b 
Zouch  ?— Yes. 

Was  lord  Ferrers  brought  to  your  hMH 
when  he  was  apprehended  ? — Yes. 

Did  you  hear  him  say  any  thing  about  til- 
ing of  Johnson  ?— I  heard  very  little  of  it. 

Do  you  remember  one  Mr.  Hall,  a  cltiiy' 
man,  coming  to  your  house  at  that  tim^?— 1» 

Did  he  desire  to  be  admitted  to  lord  Fcncn? 
—Yes. 

Did  you  hear  what  passed  between  Mr.  Bd 
and  my  lord  Ferrers? — A  great  many  WW* 
nassed. 

What  passed?—!  heard  Mr.  Hall  intioult 
to  his  lordship,  as  a  clergyman,  that  hislod- 
ship  seemed  to  be  pretty  much  in  liquor  sttliit 
time,  and  desired  he  would  not  make  ose  ■ 
those  expressions.  He  told  Mr.  Hall  be  aH 
exlremely  obliged  to  him  for  his  good  adrice; 
he  apprehended  what  it  was ;  however,  be  M 
Blr.  Hall  that  he  knew  his  duty,  perhaps, tf 
well  as  a  justice  of  peace. 

Was  Mr.  Hall  a  justice  of  peace?— Yet.  l^ 
not  bear  much  more  said  between  Mr.  Hall  ai^ 
my  lord  Ferrers.  Mr.  Hall  stayed  with  bis  Isrf* 
ship  some  time  in  the  same  room;  then  be  esse  M^ 
down  stairs,  and  1  never  saw  him  afterwards. 

Did  he  say  any  thing  about  killing  of  Mr. 
Johnson  ?— He  asked,  a  great  many  times,  if  I 
bad  heard  that  Johnson  was  dead  ;  I  told  bip 
a  good  many  times,  that  I  heard  he  was  dead: 
he  said,  1  will  not  be  convinced'  till  I  bear  il 
from  the  coroner. 

Did  he  say  any  thing  else  ?-«His  lordridf 
behaved  very  well  with  me,  and  decently,  fiM 
the  Saturday  to  the  Monday  at  ten  o'dodk 

Att,  Gen.  My  lords,  we  root  it  boo  Arlh 
crown* 


I 

n 
^i 
m 
ate 

■Pi 

*i 

tilt 

II 


fS2I] 


Jut  Murder. 


L*  H.  8.  My  lord  Ferrersi  the  counsel  for 
f  the  crown  have  done;  oaw  is  llie  time  for  your 
'  ltiriiiihi{i  lo  make  your  defence  -  aud  if  you 
I  liare  any  witnesses  to  examine,  now  ia  your 
\  time  locaM  theiri, 

Burl  ft-rrer*.     fliy  lords,  there  hare  Iieeu  a 

great  variely  of  circiimatances  tliat  have  a|>* 
j>eBred  through  the  course  of  ihiij  eviilence,  V 
Teally  do  not  recollect  any  thing;  that  fiappeoed 
^tince  the  time   relative  to  the  affair ;    and    I 

■houM  hope  yoor  lonlships  would  give  me  a 

farther  day  to  make  my  defence. 

L.  H.  S,     Your  iordsLip  bath  hnri  a  ^reat 

deal  of  time,  and  you  have  had  counsel  m- 
^tigfned  you,  and  orders  fnr  aumuioning  your 

witnesses,  it  ia  now  the  time  to  proceed  to 
^^ur  defence. 

Ead  Ferrers,     1  hope  your  lordships  wdl  he 

to  good  as  to  give  me  till  to*morrow,  as  there 
^re  some  circitmslauces  that  1  could  wiBh  to 
^Ofisult  my  cuunsiil  about. 

Liord  Mansfield,  My  lords,  as  your  lord' 
iibit>s  caiiiiut  dehale  here  upon  the  appltcation 
^kiai  has  heen  made  by  the  noble  lord  at  the 
%ar,  to  ailjourn  the  trial  till  lo-morrow,  I  could 
^iah  li«  would  open  to  your  lordehips  the  ua- 
ture  of  hi^  deteuce,  or  some  reason  why  he  h 
not  preparer!  to  go  on  now  ;  niberwise^  when 
^'our  lordships  adjourn,  you  will  have  nothing 
'to  debate  uuon,  hut  barely  whether  there  shall 
%e  this  delay  because  it  is  asked  ;  and  it  may 
%e  a  clan^erouH  precedent  to  establish,  that  a 
trial  shall  ue  adjourned,  as  of  course,  if  desired^ 
Just  when  the  evidence  in  support  of  the  pro- 
fCecutiou   is  closed.     If  he  shouhl   give  your 

lordships  a  reason  for  it,  then  it  ivill  be  in  your 
Jordships*  fti^retioo,  whether  that  reason 
^is  sufficient  to  induce  your  lordships  to  ailjouru 

till  to-morrow.      I  think   he  shouhl  open   the 

niiture  of  his  defence,  and  state  some  ground 

fcr  the  delay  be  asks. 

ElUabclh  Burgelund  called  in  ag&iu  :   Exa- 
mined by  one  of  the  Peers. 

*  Do  you  know  of  any  particular  qtiantity  of 
ctroDg  liquor f  of  any  kind,  that  lord  Ferrers 
bad  drank  that  day  f— No.  I  cannot  tell  any 
ihin^  of  it :  he  drank  some  brandy  io  his  tea, 
in  the  morning. 

Who  is  the  person  that  kept  the  key  of  the 
■tro  n  g  I  iq  no  r  f  ^  M  rs   C 1  ifford . 

Do  you  know  ol  any  that  he  had  tbal  day  .^-*- 
1  eauuot  tell  any  thing  about  it. 

Was  it  usual  for  my  lord  to  drink  brandy  in 
bis  tea  ? — He  did  uoi  driuk  lea  every  morning ; 
'but,  ^I'hen  he  drank  tea,  1  believe  he  did  put 
brandy  in  ii« 

Was  Mrs.  Clifford  returned  to  the  hall  be- 
fur«  the  surgeon,  Mr.  Kirkland  ? — ^Yea. 

Row  loni;  ? — f  cannot  juaily  say  ;  it  may  1>e 
near,  or  near  upon  iifro  hours, 

Had  you^  or  any  person,  carried  any  strong 
Itijuor  to  my  lord 'before  Mr.  Kirkland  came  P 
*<'*|  cannot  tell  any  thing  about  it. 

At  what  time  did  lord  Ferrers  dine  that  day  ? 
^At  two  o*clock. 

When  you  aavr  lord  Ferrers^  after  tht  fact, 


A.  D.  1760.  [pax 

was  be  drunk,  or  sober  f— I  did  not  observe  he 
was  much  in  licjuor  then  ;  but|  soon  alleri  be 
WBs  quite  fuddled. 

The  5rst  time  you  saw  him  after  the  pistol 
went  tiff,  how  was  he  then  ? — I  did  not  observe 
th^t  he  was  much  in  liquor  ut  the  time  vrhea  it 
was  done. 

Did  you  see  him  any  part  of  that  day,  before 
you  heard  the  pistol  go  off,  or  bctorc  Mr, 
kirkUnd  came  lo  the  bouse,  appear  intoxi- 
cated viiih  liquor  f—l  saw  him  at  diaaer^  I 
never  saw  him  after  till  it  was  done. 

Huw  was  he  at  dinner  t — My  lord  wai 
sober  at  dinner. 

Earl  Ferrers.  My  lords,  by  the  kind  of  de- 
fence recommended  to  me,  it  will  he  impos- 
St  bio  lo  go  on  at  present ;  there  are  several 
witnesses  to  be  eicamined,  and  really,  my  lords» 
I  am  quite  unprepared. 

Earl  of  Hardtiicke.  I  believe  it  is  expected 
by  your  lordiihips,  that  the  nohle  lord  at  the 
bar  should  now  open  to  you  the  nature  of  his 
defence. 

L.  H,  S  My  lord  Ferrers,  it  ii  reqoiretl  that 
you  should  open  the  nature  of  your  defence  ; 
my  lords  will  be  able  to  judge,  from  that^ 
whether  it  will  he  proper  to  give  your  lordship 
lime  to  make  your  defence,  agreeable  to  your 
request. 

Earl  JFVrreri,  My  lords»  I  can  hardly  ex- 
press myself,  the  vefy  circumstance  shocks 
me  so  much  ;  but  1  am  informed,  from  several 
circumstanceS|  of  an  iudispnsitiou  of  mind. 

Then  the  Lord  High  Steward  returned  back 
to  the  chair. 

Lord  Rfivensworih,  My  lords,  I  move  your 
lordships  to  adjourn  to  the  chamber  of  parlta- 
lueot. 

X.  H,  S>  Is  it  your  lordships'  pleasure  to 
adjourn  to  the  chamber  of  parliameiit  ?*^Lordi, 
Ay,  ay. 

L.  H.  S*  This  house  is  adjourned  to  the 
ctiamber  of  parliament. 

The  Lords,  and  others,  returned  to  the 
chamber  ol  parliament,  in  the  same  order  ibey 
came  down  i  and,  after  some  time,  the  House 
was  adjourned  again  into  Westminster  Hall, 
and  the  Peers  being  there  seated,  and  the  Lord 
High  Steward  in  his  chair,  and  the  House  re- 
sumed, the  Serjeant  at  Arms  madeproclatDatioa 
for  silence,  as  usual. 

Z.  H.  S.     My  lord  Ferrers,  you  are  to  pro* 

ceetl  to  your  defence. 

Earl  iVrrerj.  My  lords^  the  kind  of  de- 
fence 1  mentioned  to  your  lordships  before,  I 
really  don't  know  bow  myself  te  enter  upon  ; 
it  is  what  my  family  have  considered  for  me, 
and  they  have  engaged  all  the  evidence  thai 
are  to  be  examined  upon  this  unhappy  occa- 
sion, who  I  really  have  not  seen  ;  I  do  not 
well  know  what  they  hare  lo  say:  I  should, 
therefore,  hope  your  lordships  will  give  me  all 
the  assistance  that  is  posatbie  in  their  examU 
nation. 

My  lords,  I  Ulks^  ^ia»!^^N»!w  W^^^  ^* 


023J  SS  GEORGE  IL 

foady  ndentioned  i^  ^our  brdsliips,  as  lli£ 
^ound  oHhis  delence,  bas  b<;en  a  family  com- 
plaint ;  anil  I  hare  heard  ihal  my  owo  fauiity 
hive,  of  late,  eudeavQured  (o  prove  me  «ucli. 
Tbe  defence  E  mt^au  is  occasional  insonilv  of 
tniod ;  aod  I  am  coovincedi  from  rrcollectiog 
witliiii  myselt',  llialf  at  the  time  of  (his  actiiia, 
1  ooujd  not  know  what  I  wns  ahouL  I  9ay, 
my  hmU^  upon  redectioj^  witbin  myself^  1  am 
coavinced,  ibat,  at  tbat  time,  i  could  not  kootv 
f^hut  i  wai  about. 

It  bas  been  too  plainly  proved,  tkat,  at  the 
time  tliia  accidt^nt  ha|H>eiie(],  I  was  very  sober, 
that  2  WQi  not  di soldered  with  liquor :  your 
Jordsbips  will  observe,  iVom  the  evideuce  bc^ih 
of  Mr.  Kirkland  and  AJiss  Jolmsoa,  that  it 
plairdy  ajipt^ured  that  ibis  man  never  susj^ecled 
there  was  aoy  malice^  or  that  I  bad  auy, 

Mr,  John  Benntfold  sworn. 
EjEamiued  by  Earl  Firrertm 

How  long  bale  you  knoirji  meP'-Abofc 
tlie&e  twenty  years. 

Waiyoa  ever  employed  by  me  in  aoy  ihape? 
—Yes, 

la  wbal  shape  ? — In  receivinff  his  lonUhip's 
i0Dts,  ^bcQ  they  w^re  sent  bim  out  of  the 
country. 

Did  you  know  any  of  tbe  family  besides  roe  ? 

Do  you  remember  my  uncle,  nr  any  other 
^f  the  family  f- -Yes,  the  late  lord  Ferrers, 
Henry. 

What  disorder  had  he?--LTJnacy. 

How  many  years  before  he  died  P«-Seyera] 
years  before  he  died,  at  Kensington  Gore. 

I)id  you  know  lady  Barbara  Shirley  ?--No. 

Did  you  never  hear  ibat  she  waa  diiiordereii  ? 
--Yes/l  liaFe, 

Please  to  oUserre  whjii  you  kooir  of  my 
cqitduct,  as  to  the  state  of  my  mind,  without 
hariujj^  nny  particular  questions  asked  you  ?'• 
His  lordship  bas  always  behaved  in  a  n^ry 
strange  manner,  very  flighty,  tery  much  like 
a  man  out  of  bis  mind,  more  particularly  so 
wilhiti  these  two  years  past,  such  as  hein^  in 
liquor,  and  swearinpr  and  cursing',  ai^d  Ibe  like, 
and  talking  to  liimself,  very  much  like  a  man 
disordered  iu  bis  senses;  and  then  he  has  be- 
haved himself  as  well  as  auy  other  geutlemitu 
at  times, 

Do  you  know  of  any  particular  time,  or  of 
any  pairticular  action  ?-'Nothing  in  particular, 
more  than  the  particular  circumstances  of  my 
Jady,  and  expressing-  great  bardshijis,  and  disr 
satjsfactioD  with  the  ael  of  parliaaient 

Have  you  ubserired  irrational  behaviour  when 
I  have  not  been  in  hquurP^-Ves,  I  have. 

Was  it  fVei|uent  nr  scldQn[|  ?--  It  was  of^. 

Can  you  recollect  any  particular  irrational 
behavmur  in  me  when  I  have  not  been  iu 
liquor  P*>1  cauuot  say  tliat  i  can  recollect  any 
particular  passage. 

Did  you  ever  see  me  walkinif  about  the 
rcKmif  talking  to  myself;  making-  motions 
with  my  head,  and  talking  to  myself  ?--\'esj  a 
gre^t  m&Df  lioies. 


Trial  (if  EaH  Ferrers^ 


Did  you  ibink  thai  J  wia  dklOfM  ia  my 
mind  ?.-Ye«. 

By  Mr.  Attorney  OenfrmL 

My  lords,  I  should  be  glad  to  koov  wkilii 
tills  witness's  trade  and  occupatluo  ?••  J  am  at* 
derk  of  Bt.  James's  pAmk  ;  I  «imsipcn4& 

m^ker  by  trade. 

Was  you  acquainteil  with  my  lurd  Ferrenii 
Ibe  country  or  in  town  ?--ln  tawo. 

Was  you  admitted  to  my  lord^s  friesdship  v 
familiarity  ?--To  bolhu 

Ira  conversation  at  any  lime,  haT«  yot%« 
served  my  lord  to  give  you  irratioual  or  idHi 
sible  answers f--I  canuat  aa^  he  has  ^  * 
any  insensible  answers. 

I  should  be  glad  lo  kno^v  ^*  }i«»I>pi- 
au}'  reason  to  believe,  irt  i  r, 

be  did  not  understand  ch     „  anjj 

ri^ht  from  wrong  ?--That  is  a  c|uestJoo  Ii 
some  doubt  of  answejinir- 

I  have  asked  .  if  yon  i 

recollect    what  cd  belj 

you,  you  will  be  able  io  ^i\  k-  ^^^  juisweri 
from  your  discourse  ami  couvct^;i(innt 
think  or  beheve  he  was  in  tliat  state  of  | 
not  to  know  right  from  wrong  at 
—That  is  a  queMion  I  cauuQt  answer  to. 

You  will  be  pleased  to  trecoUeci^  that 
told  me,  when  I  asked  you,  that  my  lord  i 
gave  you  an  irrational  answer  ;  why  c* 
you  give  your  opinion  as  to  bis  sauity  ?* 
lord's  behaviour  appeared  in  general  in  i 
manner  as  L  have  mentiooecL 

Alt.  Gen,     My  )ordS|  this  witness  didl 
meDtion  aoy  particular  act,  only  talking  to  i 
self,  and  motions  witli  his  bead  ;  I  am  qn 
tinning  bim  upon  those  kind  of  acts  thatf 
ceed  from  words  or  speeches ;    did  you  • 
fruti^  hi^  words  or  speeches^  cnncrivc  thills 
was  not  himself  ?--Be/7iif/u/c/.  > 
by  being  displeased,  often  tall 
like  a  man  that  was  out  of  his  n 

Did  my  lord  manage  his  aD'ui 
--He  managed  them  himsdf;    u^  gave  i 
directions^ 

Were  those  directic:  •  '  "-^  -  :^ ' ^  -  - 

b le  ?*  - S(»m etimes  t h < 

unreasonable  and  inscit^t»t<.  "j    *.ki%.  ^j^zksvuj 

wrote  to. 

Can  you  recollect  any  instances,   and  i 
persons  that  thought  them  so  ?— I  cannutr 
leet  any  circumstance  reJating  In  fAmilj( 
ters ;   hts  molher,   when  I  have  i:arr 
messages,  has  thought  bim  to  be  inai^ 
mind',  in  writing  to  ber  in  the  manner  he  did. 
Did  Mrs.  Shirley  ever  irejil  him  us  an  i 

Ceraofii,  or  tatk  of  sending  fo|r  a  physioAiiQ 
im  ?->Notthat  I  know  of. 

Did  any  other  person  tbiul  'Isoin 

as  to  want  that  ?•-!  cannoi  t 

son  in  particular. 

Was  it  easy  to  impose  upou  hi%  krdsbip  i 
bis  aflkirs,  or  difficult  i'-'lt  was  not  easy  U»  UD-s 
pose  up^n  his  lordsbip  tb^t  I  know  qL 

As  you  have  known  bim  so  lontf,  and  bartj 
b«£U  oiiaiibed  to  his  iaqiiJiaiityi  1  wtsb  yoo  ' 


auy 


\: 


tes] 


J^r  fltvx^. 


A.  i;>.  1760. 


\m 


would  recollcrt  onte  siogh  Irraliorjal  es^i^res^ion 
that  jou  have  ever  Iifeard  him  make  use  of — I 
tAHnol  recoffect  any  in  partirular, 

Yoa  say  that  hi;  seeiDed  displeasei!  tvith  hd 
,dy,  and  witli  the  act  of  parliament;  please  to 
■Mollect,  wliethei",  iipoti  that  occasion,  bis  be- 
Imirioiir  was  sticli  us  betrayed  tiis  msaniiy,  or 
litiy  thing  fhal  wai  irrfttional?--My  bid  e.t- 
hressed  a  gfoo J  detid  of  dUsatisfactioo  at  lUe  act 
ifpat'liametit^ 

What  was  th&  disaatlsfaclion?    and  ti^as  it 
^cral  a?  well  as  pttrlicuIarF--Io  relatiua  to 
dc  estate's  heing  taken  away,  atid  receivers 
iQg'  put  upon  It. 

Do  you  apprehend  that  that  Bort  of  fevpres- 

»o  denoted  insanity  or  sanity  ?--That  I  cannot 

ftke  upon  ine  to  detcrmtne* 

Please  to  recollect  yourself,  and  gife  roe  an 

wer  to  the  <}nestiou  i  you  said  that  he  eX- 

essed  a  dissatitifaction,  because  hi^i  estate  was 

Iteo  from  him,  and  a  receiver  put  upon  it ;  I 

^^fefe  to  know  whether  those  expressions  hm- 

^PBk  a  rnati  in  his  seuses  or  oul  of  his  senses  ? 

-T  cannot  say  wli ether  that  denoted  hitn  to  he 

Ijis  senses  or  out  of  his  senses. 

Are  those  expressions  the  expressions  of  a 

>Ol,  or  of  a  ntian  of  iinderstandinff  upon  the 

Object  ? — 1  should  think,  of  a  man  ot  under- 

indinft'. 

Yoa  hare  Piot  been  able  to  answer  as  to  any 

Tticular  speeches  that  denoted  him  to  be  in- 

:c  ;  uow  do  ytin  remeiiiber  any  act  of  his,  of 

\j  kiudf  lint  denoted  a  disordered  mind? — I 

not  say  I  can  j  1  was  not  so  often  with  him, 

ough  I  hare  known  him  long. 

Then  [desire  to  know,  whether  Ford  Ferrers, 

9in  the  conversation  you  had  with  hliri,  ap- 

,red  to  be  rather  of  better  parts  than  an  or* 

•y  kind  of  man  ? — Yes,  to  he  sure, 

Mr.  Thomas  Gooitrey  sworn. 

Examined  by  Karl  Ferrert. 

Hotr  loug^  have  you  known  lord  Ferreri?.— 
Iliout  ten  years. 

Hovv  I  on  Of  have  you  been  cioikcrned  for  him  ? 
^-About  that  time. 

t Have  you  seen  any  Instances  of  any  Ibbgr 
c  insanity  in  itie  ? — I  Ihink  I  have. 
Please  to  mention  the  initances.->*l  bare 
eu  called  upon  very  unexpectedly  ;  I  sboiifd 
^f e  recollected  myself,  If  E  bad  had  any  ap- 
irehension  of  being:  catlcd  upon. 

Then  mention  the  iuslances,-— 1  know  no- 
ting within  this  twelve  months  past :  lord 
errera  always  appeared  to  me  to  be  of  a  very 
rmnarkable  disport tiun ;  and  though  tord  Fer- 
was  extreme]  V  sensible,  and  thoroughly 
quainted  with  bis  affairs,  yet  I  have  fre- 
aently  had  directions  from  him  to  do  things 
bal  in  my  opinion  were  either  fruitless,  or  op- 
Kiilte  to  his  interest,  and  upon  those  occasions 
have  always  found  it  in  vuin  to  endeavour  to 
issuade  his  (ordship  frmn  it ;  and  as  1  always 
Ibund  that  lord  Ferrers  was  extremely  sensitde, 
knd  thorough  rnuster  of  his  ofTmrs,  I  have  never 
lifea  capable  of  accouuiiug  lor  his  behaviour, 


otbertrni^  than  by  apprehending  thtit  tie  hi* 
been  at  tftxfes  out  of  his  mind. 

Do  you  remember  any  in«5tance  inhere  1 
appeared  to  he  dot  of  my  mind,  &nd  wbatf*--l 
remember  that  all  of  a  stidden  he  took  it  into 
bis  head  ttiM  be  should  be  capnhle  of  mipeach- 
ino-  a  family  aeltlemont  that  be  btfd  l6ti^  iwr- 
^inesced  uUder,  and  hy  which  lie  tiras  only 
f^nant  for  life  Of  his  estate;  and  though  he 
ha<J  advised  wtih  many  lawyers  upon  itie  oc- 
casion, find  they  were  all  of  6{1inion  ihat  it  ^aa 
impossible  he  could  succeed,  yet  he  persisted 
in  his  re<iotutIon  of  bringing;  a  suit  to  destroy 
that  seltEement ;  and  upon  tbuse  occaHions  i 
have  always  tVnmd  lord  Ferrers  exifemety 
strange;  and  when  he  hns  touched  u|ion  th'al 
subject,  his  conversation  has  been  very  ii^ifd, 
and  Inconsistent  with  what  I  hnve  looked  upon 
a  man  of  sense  and  understanding  to  be  ;  and 
t  remember  one  instance,  which  was,  when 
hrd  Ferrers  returaed  from  my  lord  West  more- 
laud's,  my  lord  Ferrers  followed  me  iijwin  that 
occasion  into  the  city,  and  he  came  into  the 
room  where  I  \tas  with  a  threat  deal  of  com- 
patiy,  1  perceived,  by  his  appearance»  that 
something  disturbed  him,  and  therefore  hastily 
came  up  to  him,  and  pot  biin  out  of  the  roon». 
When  I  came  up  to  him,  I  asked  him  wbat 
was  the  matter  ;  and  did  at  firs*  apprehend  he 
hsd  been  in  liquor^  but  I  soon  percened  that  he 
wa^  [lerffctly  sober.  He  then  told  me  a  strang^e 
inconsistent  story  of  his  having  been  down  at 
my  lord  VVeMmorcltind's^  and  of  his  having" 
bern  ill  treated  by  sir  Thomas  Staple  Ion,  and 
the  uitent  of  his  cominjr  to  me  was,  to  draw  an 
advertisement  to  he  inserted  in  all  the  plipers. 
Ieiidin*j  to  challenge  sir  Thomas  StapltlOn,  and 
to  post  him  fur  a  coward  if  he  did  not  give  him 
satisfaction.  I  was  extremely  uneasy;  and 
with  difficulty  did  dissuade  him  f^om  it,  upon 
a  promise  to  wait  upon  huvi  the  next  day ;  but 
then  looliini,^  upon  him  to  be  out  of  bis  senses  ; 
I  did  not  call  upon  him  the  next  day.  From 
thence  I  declined  being:  concerned  f&r  htm,  as 
looking'  upon  him  to  be  a  person  ont  of  his 
senses  r  that  is  all ;  1  have  never  seen  Ins  lord- 
ship from  thai  time  to  this,  except  when  1  ha^ 
the  honour  to  wait  upon  bis  lordship  in  the 
Tower* 

Did  you  know  Mr.  Johnson? — Verj  well. 

Was  I  in  frlendsbtp  with  Mr.  Johnson? — I 
have  often  seen  lord  Fcrrej-s  and  Mr.  Johnson 
to^^elber^  and  have  likewise  bad  occasion  to 
talk  of  Mr.  Johnson  witki  my  lord  :  1  always 
observed  that  his  lordship  had  the  {greatest  re- 
gard and  esteem  for  Mr.  Johnson;  and  I  have, 
in  the  course  of  mv  business  that  f  have  done 
for  lord  Ferrers,  afways  found  that  Mr.  John- 
son was  Tery  exact  and  reg'ular  in  his  accounts. 

Did  you  ever  hear  me  at  any  time  find  fault 
with  Mr.  Johnson,  or  express  any  dissitisfac- 
ti on  at  him  f^-Neier,  but  always  the  reverse. 

Do  you  know  if  Mr.  Johnson  would  har^ 
consented  to  have  been  receiver  under  the  act 
of  parliament,  without  consulting  ine  ?— I 
heard  >lr.  Johnson  declare*  thttt  when  it  was 
proposed  to  him  lo  htt^ms^x,\\N^\>&^t^'«i*^^ 


gS7]  83  GEORGE  11. 

to  be  M,  wtthoot  first  coosalting  his  lordship ; 
and  afterwards  I  saw  Mr.  Johnson,  and  be  told 
me  that  it  was  at  his  lordship's  particular  re- 
quest that  he  consented  to  be  a  receiver. 

Soi,Gen.  Nj  lords,  I  must  begp  leave  to  ask  this 
Dritness  a  question  or  two.— Mr.  Goostrey  g%,we 
your  lordsnips  as  a  reason  for  his  opinion  that 
lord  Ferrers  was  insane,  that  his  lordship  would 
Tery  frequently  send  directions  in  the  course  of 
his  affiurs,  which  Mr.  Goostrey  thought  fruit- 
iest, or  opposite  to  his  interest ;  in  particular, 
lie  mentioned  an  instance  relative  to  his  im- 
peaching or  setting  aside  a  family  settlement ; 
now,  I  should  be  glad  to  ask  Mr.  Goostrey, 
Whether  he  thinks  that  the  manner  of  lord 
Ferrers's  receiving  his  advice  to  dissuade  him 
from  endeavouring  to  set  aside  that  settlement, 
proceeded  from  a  tenaciousness  of  his  opinion, 
or  from  the  insanity  of  his  mind. 

Gontrey,  To  say  that  it  mijg;ht  be  owing  to 
insanity  of  mind,  might  be  going  too  far ;  out 
it  was  from  his  remsncable. disposition,  his  ob- 
atioate  and  improper  behaviour,  his  remarkable 
tenaciousness  of  his  opinion,  which  was  not 
consistent  with  the  good  sense  I  have  known 
him  master  of.  If  I  m^y  explain  what  I  said 
liefore,  I  should  rather  think  it  tended  to  insa- 
nity than  any  thing  else,  as  it  was  so  incon- 
sistent with  the  good  sense  and  understanding 
that  I  have  always  met  with  from  his  lordship. 

By  Mr.  Solicitor  General. 

Was  it  from  any  particular  circumstance 
which  passed  between  you  and  lord  Ferrers, 
that  you  thought  the  manner  of  recei?iDg  your 
advice  was  owing  to  a  tendency  in  lord  Ferrers 
to  insanity  ?— My  reason  is,  that  his  lordship 
had  been  advised  by  many  lawyers,  that,  by 
hi&  long  acquiescence  under  that  settlement, 
and  the  many  acts  he  had  done  confirming 
it,  that  there  was  no  possibility  of  succeeding 
in  it. 

Mr.  Goostrey,  you  have  had  a  great  deal  of 
business,  and  l>een  employed  by  many  clients, 
as  well  as  lord  Ferrers ;  have  not  you,  in  the 
course  of  your  experience  and  transactions, 
met  with  several  clients  of  a  temper  to  proceed 
against  the  advice  of  counsel  and  friends  ? — I 
never  did  iu  my  small  experience  meet  with 
any  person  that  did  so,  that  was  possessed  of 
the  good  sense  and  understanding  that  I  have 
at  other  times  found  in  my  lord  Ferrers. 

Have  vou  never  met  with  |»ersons  unsus- 
pected of  lunacy,  who  acted  in  the  manner  lord 
Ferrers  did  upon  that  occasion  ? — I  da  not 
know  I  ever  had  any  other  client  that  was  under 
such  circumstances ;  I  do  not  know  that  1  ever 
met  with  any  client  that  would  commence  a 
suit  afler  counsel  advised  the  contrary. 

How  did  the  suit  end  ?— It  never  proceeded 
80  far  as  to  have  an  answer ;  for,  in  the  mean 
time,  the  unhappy  dispute  between  lord  and 
lady  Ferrers  broke  out,  aud  that  diverted  his 
thoughts  from  it. 

You  mentioned  ao  instance  of  attending  lord 
Ferrers,  with  regard  to  the  ill  treatment  be  had 
fceeifcd  fcom  lir  Tboaias  Slapleloo ;  upon  that 


Trid  of  Earl  Ferrirt^ 


[928 


occasion  do  you  think  that  my  lord's  insisting 
to  have  a  challenge  inserted  in  the  papers,  by 
way  of  advertisement,  proceeded  from  insanity, 
or  Crom  mere  violence  of  temper  ?— I  did  thai 
think  it  insanity ;  he  being  perfectly  sober,  I 
could  impute  it  to  nothing  else,  and  from  thence- 
forth I  declined  being  concerned  for  him. 

Might  it  not  be  from  violence  of  temper  ?^ 
It  was  many  hours  afker  the  acddeot  happened 
that  he  came  to  me. 

Did  vou  ever  observe  any  thing  frantic  ia 
my  lonf's  behaviour  ? — Many  times. 

Upon  what  occasion  ? — Upon  occasion  of  hit 
gomg  from  the  business  we  have  been  talkiof 
upon,  I  have  often  found  him  in  oonversalioB 
Mse  himself  entirely. 

Did  he  lose  himself  from  passion,  or  ftr 
want  of  understanding  ?— He  had  nothing  ts 
ruffle  his  temper  but  that  particular  tbmg ;  it 
was  from  his  tslking  to  himself;  I  made  it  a 
rule  never  to  contradict  him  ;  and,  during  the 
ten  years  I  was  concerned  for  him,  I  never  bstf 
a  word  with  him. 

You  endeavoured  to  dissuade  him  from  Ihii 
suit  whkh  he  was  going  to  prosecute  as  to  the 
settlement ;  how  did  he  reason  upon  the  eeea- 
sion  ? — Quite  wild  and  inconsistent,  and,  apos 
this  occasion,  in  my  opinion,  shewed  want  «f 
reason. 

Do  vou  recollect  what  he  said,  and  bow  b 
arguedf?  Mention  the  particulars.— He  trcstd 
it  as  if  he  had  been  imposed  upon,  and  dnira 
in  improperly  to  do  it. 

Do  vou  think  that  such  a  way  of  nrgoiir 
shewed  his  insanity  and  want  of  sense  f-4 
thought  it  did,  because  it  appeared  to  me  to  k 
inconsistent  with  the  facts. 

Might  it  notarise  from  a  difference  in  osisiM 
between  you  and  him  ?— 1  should  thins  sit, 
because  I  always  looked  upon  his  loidsiiiptv 
be  a  much  more  sensible  man. 

How  long  have  you  known  him  ? — Isaidtei 
years ;  but  I  believe  it  may  be  eleven. 

Do  you  know  of  any  instance  in  whicb  Ihi  | 
friends  or  family  ever  entertained  the  sameepi-  I 
nion  of  him  as  you  do  ?— Never,  as  to  ttkif 
out  a  commission  of  lunacy. 

As  from  the  conversation  you  had  with  bin 
you  think  he  was  insane,  did  not  you  repre- 
sent it  to  the  family  ? — Never ;  his  family  ks^ 
it  as  well  as  !• 

As  j^ou  was  of  that  opinion,  did  you  advise  t 
commission  of  lunacy  ? — Never. 

In  the  time  of  your  being  concerned  for  bin 
in  liis  affairs,  did  vou  prepare  any  deed,  c«0' 
veyance,  or  lease  for  him  ? — In  some  thing*  ^ 
bate. 

Did  you  ever  prepare  any  mortgage  upoobii 
estate  i*— Never  that  1  remember. 

Did  you  ever  attend  the  execution  of  VSJ 
such  deeds?— I  was  concerned  in  suffering* 
recovery,  and  cutting  off  the  entails  in  the  Ml' 
tlemeot. 

In  case  of  a  client's  being  insane,  woaldy** 
have  snfiered  such  acts  to  be  donef— Tbcft 
was  no  such  thing  hsppened  in  my  time;  I  ■ 
tmer  knew  yf  any  act  that  my  kmTdidlDM*      , 


2)39] 


Jor  Murder. 


A.  D.  1760. 


[930 


\ 

) 

i 


prejadiee  in  the  execution  of  any  deed  in  my 
time. 

I  ask  you,  if  you  had  been  desired  to  be  a 
party,  or  present  at  the  execution  of  any  such 
deed,  whether  you  woiiM  have  suffered  it  under 
snch  circumstances  ? — Most  certainly  I  should 
Dot. 

Was  you  ever  a  witness  to  the  execution  of 
•ny  deed  by  lord  Ferrers  f — I  iiave. 

bid  you  ever  transact  any  mortgage  for 
bim  ? — I  do  not  recollect. 

Did  you  never  get  any  loan  of  money  for 
bini  ? — ^fever.  If  the  gentlemen  \i  ill  tlnd  it 
out  I  will  not  disown  it. 

Has  my  lord  lately  raised  a  considerable  sum 
of  money  upon  his  estate  ? — No,  I  never  ncgo- 
cjated  any  such,  nor  was  1  privy  to  it. 

Was  yon  employed  to  procure  any  money  ? 
—Never  to  my  memory. 

Did  you  never  converse  with  his  lordship 
npnn  the  subject  ?— Never. 

Did  you,  or  did  you  not,  in  your  conscience 
Mid  opinion,  upon  ttie  whole  matter,  think  my 
brd  Ferrers  insane,  or  a  proper  object  to  be 
imder  the  care  of  a  physician,  or  of  the  court  of 
Chancery  ? — I  am  in  ^reut  doubt  whether  my 
kird  was  so  inisane  as  that  a  commission  of  lu- 
nacy could  Ik>  taken  out ;  I  should  think  a 
commission  of  lunacy  could  not  be  taken  out 
■gainst  hiui. 

Why  ?  because  he  was  not  insane? — I  look 
upon  it  that  he  was  insane  only  at  particular 
times,  and  in  particular  instances. 

If  be  was  insane  only  at  times,  would  he 
BOt  have  been  a  pi  oper  object  of  a  commission 
of  lunacy  ? — I  cannot  say  at  the  times  1  have 
Hen.  if  a  jury  ha<l  been  to  enquire  touciiinyf 
his  sanity,  I  am  sure  they  would  have  found 
Um  a  lunatic. 

Mentitm  the  times  cf  which  you  speak. — I 
meant  that  particular  time  when  his  lordshin 
ane  to  me  in  the  city,  as  I  have  mentioneo. 
My  lord  Ferrers  did  pro|K)se  to  dispose  of  his 
Northampton  tiki  re  estate.  I  do  recollect  there 
Wu  onctt  a  negotiation  of  a  loan  of  10,000/. 
from  sir  Thomas  Clarges.  1  was  no  other- 
vise  concerned  iu  it,  than  only  to  see  that  the 
deed  which  lord  Ferrers  executed  was  a  pro|>er 
Me.  Mr.  Howell  of  Lincoln*s-inn  was  the 
person  concerned. 

You  lecollect  the  neprociation  of  a  loan,  and 
your  iK'iiig  advised  wiili  ? — J  <lo  recollect  1  was 
•dviiied  with,  anil  I  believe  my  lord  was  then 
in  Leicestershire. 

What  advice  diil  you  cfive?— The  money  to 
k  borrowed  by  my  lord  was  not  to  be  put  nito 
bb pocket,  but  to  pay  ntf  another  mortgage. 

Wliat  advice  did  you  cfivc  ? — I  do  n»t  re- 
collect any  particular  advice;  1  remember 
tbcre  waa  a  draught  of  a  deed  ;  I  believe  it 
Vis  laid  before  me. 

Did  you,  or  did  yon  not,  ad\  ise  the  execution 
•f  it? — 1  neither  advised  one  way  nor  the 
tther ;  I  was  no  otherwise  concerned  than  to 
Me  tbiu  the  draught  was  proper. 

Yon  Mv  my  lord  asked  your  advice ;    did 
ycu  giva  him  your  opinion  with  respeot  to  the 
VOL,  XiX. 


propriety  of  the  deed?—!  dare  say  if  my  lord 
asked  it,  I  did  ;  1  don't  remember  he  did  ;  it 
is  most  likely  he  did. 

Lord  HitUboroit«;fi.  Why  did  you  make  it  a 
rnle  never  to  contradict  my  lord  Feners?— 
Coostrey,  Because  if  I  had  contradicted  him, 
I  should  have  led  his  lordship  into  a  stranga 
wild  way  of  reasoning,  that  ]  had  oflrn  expe« 
rienced  by  his  reasonii.g  with  hinibelt  only. 

Earl  Ferrers.  Was  you  ever  concerniil  U*t 
any  of  the  family  but  nit?—Goustny.  For 
lady  Anna  Elconura  8hirley  I  was  conceriie<l. 

Karl  Ferrers.  Do  you  know  of  any  thing 
else  ?"»Gouslrei/.  Not  that  I  recollect. 

By  Lord  liavenswortk* 

Do  3'ou  kno%v  lord  Ferrers's  mother,  or  any 
of  his  relations? — I  know  them  all. 

Do  you  mr^an  that  you  know  them  as  one 
that  has  transacted  business  uith  them,  and 
that  you  can  speak  your  opinion  touching 
them ?>- Yes;  1  have  had  business  with  theni 
rre<]nently. 

Did  you  at  any  time,  or  at  different  times,' 
speak  to  lord  Ferrers's  mother,  or  any  of  hie 
relations,  to  give  them  your  opinion  of  the 
management  of  lord  Ferrers? — 1  never  did  ;  I 
should  have  thought  it  very  unnecessary,  be« 
cause  I  was  thorou:rhly  satisiied  that  the  fa^ 
mily  knew  it  as  well  as  myself 

My  lords,  I  have  attended  to  Mr.  Goostrey'tf 
evidence,  and  am  desirous  of  getting  every 
thing  from  him  that  1  can  ;  and  therelbre  de- 
sire he  will  tell  your  lonlsliips,  whether,  during 
the  time  he  did  business  tor  lord  Ferrers,  be 
ever  signified  to  any  of  his  lordship's  family 
his  o%vn  sentiments  touching  his  lordship  ? — (f 
1  had  been  concerned  for  the  family,  I  should 
not  have  hesitated  a  moment  to  have  done  it. 
1  believe  Mr.  Shirley  iu  particular  knew  that 
the  reason  I  declined  l>eing  longer  concerned 
in  lord  Ferrers*s  affairs,  \^us  from  an  appre<- 
hension  that  he  was  not  in  his  senses. 

You  declined  being  concerned  tor  him  upon 
his  behaviour  about  the  settlement  ? — No,  u|M)ii 
his  returning  from  lord  Westmoreland's. 

Should  you  have  thought  that  alone  sufli- 
cient,  if,  previous  to  that,  you  had  not  seen 
marks  that  induced  you  to  have  a  suspicion  of 
his  sanity,  and  to  take  the  resolution  von  du!  ? 
— 1  don't  know  whether,  i!"  that  had  b-nn  tlso 
only  insUince  in  which  1  had  found  ni\  lord 
behave  in  that  odil  manner,  I  bhoold  tlitn  liavo 
given  up  his  affairs  ;  hut  he  had  seierni  tlMie* 
before  acted  so  inconsisicnt,  as  to  in-'uce  uie  io 
think  it  was  out  of  my  pt)wer  to  be  of  an}  hev« 
vice  to  him. 

How  long  is  it  since  he  was  at  lord  Wctt« 
raorcland's?— About  a  \eitr  .ind  a  half. 

You  say  that  you  have  known  liiiii  between 
ten  and  elirven  5 ears  ;    durimr  the  ^ihole  \uu^ 
was  you  concerned  in  his  affairs  ? — ^^Fhere  \va» 
sonie'lhing  or  other  moviuir  in  his  alVHiis  uU  ili^ 
while ;    it  was  with  the  ;:rent«'s(  ditticuliy  tUdt 
1  kept  him  within  the  bounds  1  did. 

Do  you  mean  that  from  the  first    tinrio  of 
your  being  coDCerned  lo  Uii  eilto^  ^5&>x  V^^ii^j^ 

30 


931]  88  GEORGE  II. 

upon  him  in  that  lifi^ht,  or  only  in  that  instance  f 
•^— Siion  at>pr  J  wah  concerned  in  his  affairs,  I 
wishfd  I  iiad  not  en^ai^ed  ;  but  as  I.  had  got 
into  ihfrn,  it  was  difficult  to  recede,  and  fur  that 
purpose  I  went  on. 

Jn  your  opinion,  and  from  your  best  recol- 
lee  ion,  diil  you  oltserfe  these  symptoms  in  hird 
Ferrers  the  whole  time  you  attended  him,  the 
major  part  of  the  time,  or  more  particularly 
at  the  latter  part?— Most  certainly  bis  lord- 
ship was  {rreBtly^affected  with  the  separation  of 
lady  Ferrers  ;  and  at  that  time  J  oliser? ed  it. 

Do  you  think  it  proceeded  from  liquor  ? — I 
▼ery  sehlom  saw  him  in  liquor. 

At  the  times  you  recollect,  was  he  sober?— 
Perrecily  sober,  at  the  times  I  speak  of. 

Eurl  of  Morton.  Did  vou  e?er  see  him  in 
such  a  condition,  that  he  was  incapable  of 
jiulffini;  l»etween  a  moral  and  an  immoral  act? 
^'Coottrejf,  I  cannot  say  I  ever  did. 

Then  the  Lord  High  Steward  returoed  back 
to  his  chair. 

.  Lord  Privy  Seal,  My  lords,  I  move  your 
lordshi|i8  to  adjourn  to  the  Chamber  of  Par- 
liament. 

Lord  High  Steward.  Is  it  your  lordships' 
pleasure  to  adjourn  to  the  Chamber  of  Parlia- 
ment?— Ltfrds.  Ay,  ay. 

Lord  High  Steward,  This  House  is  adjourn- 
ed to  ihe  Clmmber  of  Parliament. 

The  Lonis,  and  others,  returned  to  the 
Chamber  of  ParUament,  in  the  sameorder  they 
cmne  down ;  and,  after  some  time,  the  House 
being  there  resumed,  resolved  to  pi*oceefl  fur- 
ther in  the  Trial  of  Lawrence  earl  Ferrers,  in 
1Vestmiii8ter-hall,  to-morrow,  at  ten  of  the 
clock  in  the  morning;  and  ordered  that  the 
said  Laurence  earl  Ferrers  should  be  remand- 
ed prisoner  to  his  mitjesty's  Tower  of  London, 
there  lo  be  kept  in  safe  custody  ;  and  that  he 
be  hiduglit  strain  lo  the  bar  of  this  House  in 
Wesimin8ier-h;»ll,  to-morrow  at  ten  of  the 
cJock  ia  the  morning. 


Trial  of  Earl  Ferren^ 


t9« 


The  Second  Day. 

Thurtday,  April  17,  1760. 

The  Lords,  and  others,  came  from  the 
Chamber  of  Parliament  into  Weslminster-hall, 
in  the  same  order  as  on  Wednesday  last;  and 
ihe  peers  were  there  seated,  and  the  Lord 
Ui|4:h  Steward  in  his  chair. 

L(trd  High  Steward.  My  lords,  the  House 
is  rtsnmed.  Is ii  your  lordships'  pleasure,. that 
the  Judges  may  be  covered  ? — Lords.  Ay,  ay. 

Then  the  Serjeant  at  Arms  made  proclama- 
tion for  silence,  as  usual,  and  afterwards  the 
follot%in^  proclamation. 

Serj.  at  Arms.  Oyez,  Oyez,  Oyez !  Lieute- 
Baui  ot  the  Tower,  bring  forth  v our  prisoner, 
Lawrence  earl  Ferrers,  to  the  bar,  pumaaot 
io  the  order  of  the  ^wm^f  Lordt. 


The  deputy-governor  of  the  Tower  hroueht 
the  prisoner  to  the  bar  in  the  like  form  u 
before ;  and  then  be  kneeled  down. 

L.  H.  S,  Your  lordship  may  rise. 
L.  H.  S.    £arl  Ferrers,  your  lordship  wiD 
proceed  in  your  defence. 

Thonuu  Huxley  sworo. 

Examined  by  Earl  Ferrers, 

Did  you  know  the  late  earl  Ferrers  ?-— I  (Kd. 

How  long  did  you  know  him? — About  four* 
teen  years. 

What  was  the  matter  with  him  P — He  wts  % 
lunatic. 

Was  he  under  confinement  ?•;— He  was  tmdcr 
confinement. 

Was  he  a  lunatic  all  that  time  P— Be  bid  in* 
tervals. 

Was  he  not  recovered  of  bis  onderstafldipg 
sometimes,  so  as  to  return  to  his  seat  in  parlii- 
mentP— Not  in  that  time  that  I  was  with  bif 
lordship. 

Was  he  a  lunatic  home  to  the  time  of  bif 
death  ?— He  was. 

Did  you  know  lady  Barbara  Shirley  ?^I  di4 
not. 

Or  lady  Betty  Shirley  P— I  did  know  lad/ 
Betty  Shirley. 

Is  she  living?— She  is  dead. 

How  long  has  she  been  dead  P— To  the  bcil 
of  my  knowledge  about  seventeen  or  etgbteet 
years. 

Had  she  any  disorders  that  you  know  of?— 
As  I  have  been  told  by  her  servants,  sbe  fre* 
quently  appeared  to  be  very  much  disorderci 

Alt.  Gen.  My  lords,  I  should  be  sorry  IS 
stop  the  course  ofjhe  noble  earl's  etidene^ 
but  this  is  hearsay. 

By  Earl  Ferrers  (continued.) 
Did  you  know  any  other  of  the  family  ibil 

were    cfisordered    in    their  senses?— Nothing 

more  than  by  hearsay. 

How  long  h;:ve  you  known  the  present  eaH 

Ferrers? — But  a  very  lew  years. 

What  relation  was  the  late  earl  Ferrers  to 

the  present  lord  ? — His  uncle. 

Alt.  Gen.  My  lords,  we  will  not  troaUc 
your  lordships  to  cross-examine  this  witness. 

Mrs.  Wilhelmina  Deborah  Cotes  sworn. 

Examined  by  Earl  Ferrers. 

Did  you  know  lady  Barbara  Shirley  .^— Per- 
fectly  well. 

What  relation  was  she  to  the  present  eari 
Ferrers  ? — His  aunt. 

How  long  did  you  know  lady  Barbara  befort 
her  death  i* — She  is  now  living. 

Was  she  afflicted  with  any,  and  what  dif* 
temper  ? — Lunacy. 

Is  she  confined  as  a  lunatic  at  this  time?-** 
She  was  always  looked  upon  as  a  lunatic,  siA 
proper  care  has  been  taken  of  her. 

Do  you  know  any  other  of  the  family  ifti^ 
has  been  afflicted  witb  lunacy  ?— Cbl/  If 
bewtigr. 


fir  Murdefm 

be  if  on.  in  d  tier,  Mr.  Waiter  Shirkj/  tworD. 

Exiimiiiet)  Jiy  Eairl  Ferrert. 

Whal  rrlHiiiin  are  you  lome? — Brotlifr 
Do  yn^  know  ati^',  und  which,  of  the  fa- 
;ily,  Uut  Utive  beea  itffliet^d  Mub  (unAcy  ;  i^ 
mi  do,  pirate  to  nipiitioo  ihfir  nwrneH? — I  be- 
t've.  the  |»risiiner  ul  the  bar  hus  thut  iniilor- 

Wbftt  is  your  retioD  for  such  belier? — 1 
iTe  many  reatims  for  it.  The  first  h^  itmt  t 
ite  seen  bun  several  times  tafkintp  to  bimscU', 
lencliiuijf  his  fists,  g^rioiiing',  and  haviii|f  se- 
tn\  ijevtures  of  «  madniein,  without  any 
»tmin^  c^iise  lesdinu;  i hereto.  I  have  like* 
iie  very  rre<|«r'iiily  kiiowo  him  extremely 
ispjciotis  oi  plots  and  contrivances  Ag:ainst 
ini  from  hts  own  family;  and,  uhen  tie  was 
MJred  to  tfive  some  account  iihat  the  plots 
icre  that  he  meant,  he  could  not  make  atiy 
ir^ti  xnvwer*^ — ^Anolher  reason  I  hare  for 
ti no  so  is,  his  fallinig^  intoviuleni  pas* 
^  »n,       :.  >ut  any  adeijuate  cause. 

ffryoti  believe  that,  at  some  times,  1  have 
flafridfl  into  violent  fits^  so  as  not  to  know 
dfitincttnn  between  a  moral  and  immoml 
tii — 1  believe,  at  those  times  nhen  my  lord 
^^ten  transported  by  this  disease  of  lunacy, 
^^^Hle  has  not  been  able  to  dislinguijU  pro* 
^Bbetween  moral  j^ood  and  evil. 
I^M  any  other  ot  the  TamUy,  besides  mvieir, 
UPbf&icted  tvitb  lunacy  ? — i  have  bearJ 

rtetie  to  inform  their  lordships,  whether,  at 
U  toe  I  have  been  transported  with  such 
Mltfit  fits,  they  hsive  been  the  effects  <d'druik, 
ittd  whether  they  have  happened  wheti  I  wns 
nbtr  f^Frecjuently  when  my  lord  has  been 
aber,  niHch  more  so  vrheo  he  has  been  i  tittle 
IfliArd  with  liipior. 

Ryou  know  of  any  intention  in  the  funiily 
t  nut   Q  commiission  of  lunacy   agamst 
•I   beard  it  talked  of. 
How  h>o(,^  ii^o?— t  think  1  can  recollect  it 
H§  It  tlie  Ume  of  his  lonliihi|/s  comnjitting^ 
ke  outrxiife  at  lord  Westmorelaud^s  house  that 
I  wj-  .  —4  to   he  done;    but  afWrwards 

^y  d  to  go  ihroutfh   with  it;  and 

It  r**-*i.ii  ;;.it^n  was,  lest,  if  the  court  of  ju- 
ntitore  should  not  be  thoroughly  satisfied  of 
"^y  lord^tf  lunacy  upon  inspectf^n,  that  the 
Ums^e  would  be  very  great  to  those  that 
Ai<»tdd  sttruipl  it. 

Why  was  the  family  afraid  that  f  slmiild  sp* 
^  >o  the  courts  oi  Juillcature  to  he  in  my 
■|i  ? — becaute  my  lord  hud  frequently  such 
^^pntrr^als  ul  le&sion,  that,  we  imaifioed,  if 
■•»  •o  the  inspi'Ctioii,  appeared  rfMsiuiHhte,  the 
^ri  would  not  i^rant  the  cumuiissiou  sguinst 

^Kat  damsfte  clo  you  fnean  that  the  family 
HRp(»r4^hrriMve  of,  in  eatie  the  ciuiri  should 
^*uw  a  cuninuK!>inn?^  We  apprehended  my 
Viudd  »ut*  un  hir  scandattiui  musinaium. 
M  famiiy  :ipprr'heii)«ivf*  ol  any  other 
f4mmtiif9( — I  know  of  none* 
,  Ct»4  My  IwdBy  I  did  oqI  ititend  to  bavt 


A.  D.  1760-  {93$ 

troubled  tbi5  ^ntleman  ;    hut  fmm  what  b# 

lu«  said,  yiiur  lutdships  will  permit  me  to  n«k 
him  luo  or  three  que^iions  ;  I  «hitil  do  U  very 
lenderl) »  and  with  a«  mu'  h  proprieiy  as  I  cmn, 
^Iq  |k;i^i>*|irhi!»  HcC)>unt  id  iheuohle  lonlN  i^iiiie 
of  mind,  as  f^r  as  1  could  coHect  it,  besaidjhut 
he  bail  more  reasons  tbin  one  why  |ie  deemad 
biiu  to  be  insane. 

By  Mr,  Attorney  CemraL 

Mr*  Shirley,  you  said  that  the  first  ground 
was,  that  his  lordahip  woutil,  at  liuieH,  tulk  to 
hiuinelf,  eriu,  and  u^e  certain  ^^MiiiieH,  pr^iper 
<inly  it»  inaduien-^Now,  as  to  thi^  (iisi  maik  of 
insanity,  wa*i  this  fiHpiently  the  case  with  his 
lordship  ?— Vtry  frequently. 

Dtd  he,  at  iho^e  tunes,  speak  loud,  or  n^e 
any  inlelligible  language  to  himself? — He  did 
not. 

Did  he,  at  such  times,  offer  to  commit  any 
mischief,  or  betray  any  murks  of  diii^nlers 
while  In  that  siluatton?— 1  do  nt>i  recidleci  any. 

Then,  as  far  as  1  can  utiderbtand'  ynu,  at 
those  limes,  his  behaviour  in  thone  lutervala 
was  perfectly  innocent. — Yes. 

At  such  times  hove  you  ever  entered  into 
discourse  with  him? — No,  I  do  not  remember* 

Did  you  never  ask  him  a  single  c}uc*stiaa 
when  you  have  seen  him  walkiuf^  backtvarrfs 
and  forwards  in  the  way  you  Dienjion?*—! 
don't  remember  I  have. 

Did  you  never  hear  him  speak  at  such  times 
to  other  jiersnns? — Not  whiUt  be  contmued  iti 
those  attitudes. 

I  don*t  ask  you  whether  he  conversed  ibi 
time  that  he  was  mule,  btit  within  a  quarter  or 
half  an  hour? — I  am  not  certain. 

Your  next  {ground  lor  supiHJbiug'  him  to  be 
insane  was,  That  he  was  accustomed  to  be 
transported  into  passions  without  any  adequate 
cause,  were  those  the  words? — IVilhout  any 
seeming^  cause. 

Was  not  *  adequate*  the  expressloD  you 
iiie<l  ? — Yes. 

1  shouhl  be  f^lail  to  kni^w  whether  ynu  deem 
every  man  that  is  traiisporieti  with  aufftr,  with- 
out an  adequate  caune,  to  he  a  nijidman  f-^ 
I  deemed  it  »<«  a  sitfu  ot  madness  in  hiui  ;  but 
there  were  other  cauftes, 

1  ask  yrm  a  ^ener^il  quest  ion,  and  I  do  nol 
expect  a  particular  anjiwer.  VVhether  yoti 
deem  a  person  that  iw  transporti-d  mih  fury 
without  renHiMi,  to  be  a  m^Ailmun  ?— 4  think  A 
person  may  be  trancjiorted  in  fury  nitbout  aa 
adrquate  cause,  that  \%  no  mailntan. 

TImti  pli'a««  to  recollect  some  purticular  in* 
stance  of  this  frantic  patisuin.  and  titate  it.— I 
really  cannot  Cfimmand  my  mem^try  so  tar.  1 
have  not  •teen  tuy  lord  these  two  iiears,  till  the 
lime  ol  tbi(»  unhuppy  contioeiiieut. 

Then  I  am  to  understand  >iiu,  ihntyoti  can- 
not reeoll^fit  one  p  irricular  instance  ;  Am  I,  or 
not  ? — I  canii'it  rtci»lUcl  any  at  this  tune. 

Then  an  to  the  i^u^picion  of  plots  uitltout 
any  foundaiiou  ;  will  ^oii  ph-ftnv  to  enuiMiute 
any  of  iboxe?-.-He  never  himself  would  ijive 
auy  parttculif  tccotint  i>f  wUtkl  U«  %^Jh«^«<Vldkv 


n 


9S5J  85  GEORGE  II. 

only  that  he  did  suspect  that  the  family  was  in 
Bome  combination  against  him  ;  and  when  I 
have  asked  him,  What  it  was  that  he  meant? 
he  would  never  give  me  a  direct  answer  to  that 
question. 

Does  that  kind  of  behaviour,  as  you  describe 
it,  denote  a  man  out  of  his  senses  r— 1  thought 
80.  I  was  so  fully  possessed  of  that  opinion, 
that  I  declared  to  other  people  long  ago,  that  I 
thought  him  a  madman. 

Please  to  inform  their  lordships,  whether  the 
unfortunate  earl  lived  well  or  ill  with  his  fami- 
ly  f — Indeed,  he  did  not  live  in  friendship  with 
his  family. 

Were  there  not  disputes  on  both  sides? — 
Yes,  there  were ;  his  younger  brothers  and 
listers  were  under  the  uuhappy  constraint  of 
suing  for  their  fortunes. 

Then  please  to  inform  their  lordships,  whe- 
ther, in  truth,  there  was  not  a  combination  in 
th(*  family  against  him  ?  1  do  not  mean  a 
<jriminal  one. — I  am  very  certain  that  was  not 
what  my  lord  alluded  to. 

If  you  are  certain  of  that,  you  can  inform 
their  lordships  what  it  was  that  he  alluded  to  ? 
—I  %vill  give  a  reason  why  1  am  certain  it  was 
not  that ;  because  it  appeared  to  be  some  se- 
cret combination :   that  was  a  thing  publicly 

kUOMU. 

How  did  you  collect  that  the  combination 
was  secret? — By  my  lord's  manner  of  ex- 
pressing himself. 

Can  you  recollect  the  phrase  or  the  words  he 
used  ?— -I  cannot. 

Ill  another  part  of  your  examination  you 
was  a»<ked,  whether  the  earl  could  distinguish 
between  good  and  ^vil  ?  You  said  he  could 
not  diiitiiiguiiih  them  properly.  Was  he  at 
that  time  less  able  to  distinguish  properly  be- 
tween good  and  e\il  than  any  other  man  that  is 
transported  into  a  violent  passion  ? — I  never 
saw  any  man  so  transported. 

Did  he  express  hiinstif  in  insensible  words, 
80  us  tliat  you  could  discover  the  state  of  his 
mind  ;  and  that  it  was  that  of  a  madman,  and 
not  a  man  in  passion  ? — I  considered  it  as  mad- 
ness. 

Can  you  recollect  any  expression,  in  any  6t 
of  passion  that  my  lord  was  in,  that  might  not 
as  well  have  come  from  the  mouth  of  any  other 
passi(»uate  man?-— Indeed  I  cannot. 

You  recollect  an  old  adage,  *  Ira  furor  bre- 
*  vis  est:*  do  you  believe  that  his  was  such 
madness  as  is  there  poetically  described  P — I 
believe  tiiat  it  really  proceeded  from  madness. 

Have  you  ever  seen  him  so  transported  upon 
any  other  occasion  than  that  of  anger  ?  Have 
yuu  seen  any  appearance  of  that  kind  when  he 
was  cool  and  calm  ? — I  have  seeu  him  break 
into  passions  without  any  seeming  cause. 

You  said  you  could  not  remember  any  in- 
stance, when  the  question  was  asked  you  ;  can 
you  now  ? — I  remember  once  being  at  a  hunt- 
ing scat  at  Uuaremlon  in  Leicestershire,  as  I 
chose  to  avoid  the  bottle,  I '  went  up  suirs  to 
the  ladies;  lady  Ferrers,  at  that  time,  lived 
with  hims  and,  without  any  previous  quarrel, 


Trial  of  Earl,  Ferrers,  [fl35 

my  lord  came  up  ataim  into  the  room ;  sod,  after 
standing  for  some  time  with  his  back  to  the 
fire,  he  broke  out  into  the  grossest  abuse  of  me, 
insulting  me,  and  swearing  at  me ;  and  1  can- 
not to  this  day  or  hour  conceive  any  reason  ibr 
it. 

Had  you  never  any  dispute  or  quarrel  with 
your  brother  ? — Not  at  that  time. 

Might  not  you  have  bad  some  quarrel  a  fev 
days  l>efore  ? — No. 

Are  you  confident  of  that  ? — I  am  confideot 

Had  he  no  suspicion  at  that  time  of  your  io- 
teresting  yourself  with  respect  to  mj  lady 
Ferrers  ?— There  was  then  no  quarrel  exislio^. 

Had  there  never  been  a  quarrel  between  my 
lord  and  my  lady  ? — I  thiuK  not ;  it  wai  looa 
after  his  marriage. 

Richard  Phillips  sworn. 

Examined  by  Earl  Ferrers, 

How  long  have  you  l^nown  me?— AM 
eighteen  years. 

Are  you  a  tenant,  or  wl^t  relation  do  yn 
stand  in  to  me? — I  am  a  tenant  to  your  Iwd- 
ship. 

Did  you  ever  see  me  mad  ? — ^Your  kridi^ 
asked  me  one  day,  whether  I  ever  lawjoa 
mad  ?    I  said,  I  hoped  not. 

How  long  ago  is  that? — It  may  beniseff 
ten  years. 

Upon  what  occasion  was  it  that  I  asked  jft 
that  question ;  and  what  did  I  say  further?— 
Your  lordship  said  that  you  was  a  madapt 
but  could  not  help  it ;  and  when  it  wasoffjfUb 
you  was  sorry  for  it. 

Did  I  at  auy  time  lament  the  roisfortoieif 
my  family,  in  respect  of  madness?— Ymt 
lonlship  told  me  that  it  was  in  your  family. 

At  the  time  that  you  speak  of,  ten  or  eleffi 
years  ago,  was  I  upon  a  visit  at  any  place  Ikit 
might  make  it  necessary  ibr  me  to  caslioi 
people  against  my  own  madness,  that  iUj 
might  not  be  ailrouted  at  my  behaviour?— 
Your  lordship  came  then  to  live  in  the  boaii 
where  I  live.  1  thought  you  spoke  tbon 
wortls  in  a  way  to  caution  me,  that  I  aboil^ 
not  be  surprized,  in  case  you  had  such  fil& 

Did  you  hear  Johnson  the  deceased  sayth^ 
he  thought  me  mad  ? — I  have. 

When  was  it  ?— Some  time  ago. 

Alt,  Gen.  My  lords,  that  is  not  evidence, ii 
speak  of  what  he  heard  Mr.  Johnson  say. 

Earl  Ferrers,  1  thought  as  the  evidence  tf 
declarations  of  the  deceased  was  admittei 
against  me,  it  would  have  been  admitted  ^ 
me. 

jIU.  Gen.  My  lords,  though  the  declaration 
of  the  deceased,  whilst  a  dying  man,  and  afttf 
the  stroke  is  given,  are  to  be  admitted  as  legil 
evidence,*  yet  a  deposition  of  what  he  or  suj 
other  person  said  before  Uie  accident,  is  deadjf 

«  See  Leach's  Hawkins's  Pleas  of  ^^ 
Crown,  b.  8,  c.  46,  s.  36.  As  to  dying  dffli^ 
rations,  see  in  this  Collection  the  case  af  t^ 
son  and  Tranter,  voL  1§,  p.  1. 


far  Murder. 

efUlenoe,  upon  the  same  fonndalioD 

other  hearsay  efideoce ;   and,  with 

on  to  your  lordships,  ought  not  to  be 

len.  The  auestioo  is  objected  to  by 
my  noble  lord  or  his  counsel  insist 

the  next  step  is  to  bear  his  counsel 

\  objection  ;  then  we  are  to  answer  it, 
are  to  reply  ;    and  then  it  is  for  your 

»*  judgment. 

Ferrers,  1  wave  the  question. 

Gold  ClargeSf  esq.  sworn. 

Examined  by  Earl  Ferrers, 

long  have  you  known  mef — From  the 
^our  birth. 

ou  look  upon  me  to  be  afflicted  with 
I  what  distemper? — Indeed  I  have 
poo  your  lordship  as  a  lunatic  for  many 

hat  distemper  increased  of  late  years, 
long  ? — I  think  it  has. 
long  ?— For  these  two  years  or  more, 
;e  the  unhappy  difference  between  my 
I  my  lord. 

you  seen  me  in  violent  fits  of  lunacy  ? 
not  say  I  have ;  and  the  reason  that  1 
m  few  extravagant  actions  of  his  lord- 
I  this,  as  I  looked  upon  him  to  be  dis- 
in  his  mind,  1  avoided  being  in  com- 

*  having  any  conversation  with  him  as 

•  possible. 

you  particularly  remarked  that  1  am  of 

ealous  or  suspicious  nature  ? — ^That  I 

eo. 

t  been  remarkably  so  in  me  more  than 

er  people? — Mucn  more  so. 

'ou  know  any  of  my  relations  being  so 

?—I  remember  Henry  earl  Ferrers 

le  a  commission  taken  out  against  him  ? 

he  arter  that  restor^  to  his  senses  for 
e,  so  as  to  return  to  parliament? — He 
s  returned  to  parliament  about  a  year 
llf,  I  believe,  or  thereabouts. 
t  reJatioo  was  he  to  me?— Uncle. 

bit  return  to  parliament  after  be  bad 

nfined  for  lunacy  ? — Yes. 

be,  afW  that  year  and  a  halPs  being  in 

ent,  any  relapse  ? — Yes. 

I  became  of  him  then  ? — Another  com- 

was  taken  out,  and  he  was  confined  to 
?  of  his  death. 

tieing  in  parliament  a  year  and  a  half 
er  the  first  commission  issued  against 
'Yes. 

rou  know  of  any  other  of  the  family 
ifflicted  with  that  distemper?— I  have 
mt  do  not  know  it. 

By  Lord  Ravensworth. 

i  joo  avoided  being  in  company  with 
ntra,  or  having  any  thing  to  do  with 
I  lime  pait  f*-l  did,  as  mu«h  ai  I 


A.  D.  1760.  [938 

Pleaae  to  inform  their  lordships,  whether* 
you,  at  an^  time  previous  to  that,  lived  in  any 
degree  ot   constant  corre8|>ondence  and    in* 
timacjrwitb  lofd  Ferrers? — Not  much  sinco 
he  arrived  to  manhood. 

Whether  previous  to  his  arrival  at  manhood, 
did  you  see  a  great  deal  of  lord  Ferrers  ?.~A 
great  deal,  almost  from  his  cradle ;  for  I  being 
a  relation  of  bis  familjr,  was  constantly  with  his 
father  and  with  him  in  tlie  country,  and  moat 
part  of  my  time  I  spent  with  them. 

Whether  in  that  time,  previous  to  his  man- 
hood, did  you  observe  any  thing  iu  lord  Fer- 
rers from  bis  behaviour,  or  any  of  his  deport- 
ment, that  was  particularly  ri^markable?— I 
have. 

You  have  known  him  daring  his  infancy  and 
before  his  manhood:  did  you  observe  any 
thingirenarkable  constitutionally  (if  I  may  call 
it  so),  and  singular  in  bis  behaviour,  dnring  the 
time  you  knew  him?— |  have  seen  great  oddi- 
ties in  him  beyond  what  I  have  seen  in  anj 
other  man. 

What  age  was  this  present  unfortunate  earl 
at  the  time  of  the  death  of  his  father  ?— I  be* 
lieve  about  twenty- two  or  twenty -three. 

You  say  you  was  intimate  with  his  father: 
bad  yon  at  any  time  any  conversatkm  with  the 
father  of  the  present  earl,  reUtive  to  that  whiob 
appeared  to  you  to  be  singular  in  his  son  ?— I 
cannot  say  I  ever  had. 

Please  to  reoollect  as  far  as  possible,  any 
symptoms,  be  they  of  what  kind  soever,  ihit 
made  you  think  lord  Ferrers  so  very  singular  ia 
his  nature  ? — I  caunot  specify  any  particular 
thing. 

You  say  that  you  have  several  times  sees 
that  iu  my  lord,  which  made  you  think  my 
lord  to  be  very  singular  ? — Yes. 

Do  you  recollect  any  thing  ? — It  is  a  great 
while  ago;  I  cannot  particularly  specify  any 
thing. 

By  the  Earl  of  Morton. 

This  witness  has  told  your  lordships,  thi^ 
he  hSH  known  llie  noble  lord  at  the  bar 
from  his  cradle ;  I  desire  he  may  be  asked, 
if  he  ever  observed  aoy  defect  of  under- 
standing in  the  noble  lord  at  the  bar  ? — Not  to 
my  knowledge ;  not  whilst  be  was  whh  me. 

Upon  no  occasion  when  you  saw  him  ?— No, 
I  cannot  say  I  have. 

Did  you  ever  perceive  the  noble  lord  at  the 
bar  so  far  deprived  of  his  senses,  as  not  i^ 
know  that  robbery  or  murder  was  an  of- 
fence against  the  law  of  God  and  man  ?— No, 
to  be  sure,  my  lords ;  I  eannot  say  that  I  ever 
did. 

Petet  William  uy^om. 

Examined  by  Earl  Ferrers, 

How  long  have  yon  known  me  ?— I  hafe 
known  your  kinlahip  these  16  or  17  years. 

Do  you  know  of  any  distemper  that  I  am 
afiicled  with  ?-- Of  late  1  have. 

What  distemper  is  that  ?— I  have  ofU;n  ob« 
served  your  lordship,  when  1  have  been  im 


039J 


S3  GEORGE  IL 


Tour  cornpany,  to  be  spiitinfj^  io  the  ^lasf,  tn^ 
bitinf;  yoor  lips,  and  stamping  about  the  room, 
Tvhich 'iniloced  me  to  believe  your  lordship  was 
not  in  your  rit^ht  seoses ;  and  further  to  con- 
?ioce  me  it  was  so,  there  was  a  msre  that  your 
lordship  sent  to  me  on  the  17th  January  1749, 
and  remained  with  me  to  the  first  of  April  fol- 
lowintf :  one  day,  bein^  Sunday,  your  lordship 
came  to  my  house,  about  four  or  five  in  the 
•ftemooD,  with  two  servants;  your  lordship 
armed  with  a  tuck  stock  upon  a  stick,  the  two 
servants  with  gutw  and  other  offeosive  wea- 
pons: upon  enierin{(  into  the  yard,  your  lord- 
ship jumpeil  off  the  horse,  and  bid  one  of  your 
servants,  you  called  Tom,  knock  the  padlock 
off  the  stable  door.  He  did  so.  My  wife 
hearinfir  a  noise  in  the  yard,  she  came  to  know 
the  reason ;  and  without  any  ceremony  your 
lordship  felled  her  to  the  ground  with  your 
fist:  upon  my  seeing  this,  1  wHit  into  the 
vard,  and  asked  your  lordship  what  you  meant 
by  this  behaviour  ? — 

Earl  Ferren.  My  lords,  I  desire  to  atop  this 
witness;  1  only  meant  to  ask  him  a  general 
question. 

Earl  Ferrers,  Have  you  observed,  that  that 
ivbich  you  call  a  distem[>er  in  nie  has  increased 
lately  P — Wiiliami.  Yes,  in  my  opinion  I  think 
it  did :  n  ben  your  lordship  came  to  me,  you, 
frithout  any  further  ceremony  ■  [stop- 

ped by  loril  Ferrers.] 

Lord  Havensworth.  My  lords,  injustice  to 
nyself  and  to  your  lordships,  I  hope  that  the 
witness  may  ao  on,  though  the  prisoner  desires 
he  may  be  8topp«'d. 

Lord  Munsjield,  If  any  of  your  lordships 
have  aoT  questions  to  ask  the  witness,  you  will 
do  it :  the  prisoner  will  ask  such  as  he  thiuks 
proper. 

By  Earl  Ferrers,  (coDtiaued). 

Do  you  know  of  any  design  in  the  family  to 
take  out  a  commission  of  lunacy  against  me  ?— 
I  cannot  say  I  do. 

Did  you  ever  tell  me  that  the  family  wanted 
to  prove  me  mad  ? — I  don't  remember  I  did. 

Did  you  yourself  consider  roe  as  a  madman? 
-^I  considered  your  lordship  so  at  this  juncture, 
and  many  times  beibre. 

What  time  did  you  mean  by  this  juncture? 
—1  mean  the  juncture  of  his  lordship's  coming 
on  liorselmck  with  guns  and  other  offensive 
weapons  to  take  away  the  mare. 

What  time  was  Ihat.^ — 8unday  the  1st  of 
April  1759 ;  1  mistook  when  I  said  1749. 

Was  it  the  general  reputation  of  the  country 
that  J  was  mad  ?-— It  was ;  1  have  heard  se- 
veral people  say.  Where  is  the  road  lord  that 
Ubed  to  be  at  your  house  ? 

How  lung  before  this  accident,  in  regard  to 
Mr.  Johnson,  was  it,  that  my  lord  came  to 
your  house  armed  in  this  manner  ?•— I  believe 
It  was  about  a  twelvemonth. 

You  said  it  was  1749  befora?— ]  ncaot 


Trial  qfEaH  Terreri.  [MO 

Elisabeth  William  swoni. 
Examined  by  Earl  Ferrers. 

How  long  have  you  known  lord  Fmcn  f— 
A  great  many  years. 

Do  you  know  of  any  distemper  that  M 
Ferrers  is  afflicted  with,  and  what  is  it?— Bf 
never  appeared  like  any  other  gentfemao. 

Wherein  did  he  differ  from  other  people  ii 
general  ?— He  always  was  a- musing  and  tallh 
ing  to  himself.  He  spit  in  the  looking- gisii^' 
tore  the  pictures,  swearing  he  would  break  ny 
bureau  opeU,  and  would  t^eak  all  the  ghisesii 
my  house,  and  would  throttle  nae  if  I  wosU 
not  let  him  do  it. 

Had  he  any  particular  reason  for  thb  eoi- 
duct  ?— None  that  1  ever  saw,  but  like  a  6^ 
lirious  man. 

Did  you  keep  a  public-boase  ? — ^Tes. 

How  near  clid  you  live  to  my  lord  ?— Vj 
lord  was  at  my  house,  and  boarded  with  me. 

Are  you  the  wife  of  the  last  witness?— Yes. 

Where  did  lord  Ferrers  live,  at  the  time  be 
behaved  in  that  odd  manner  you  speak  of  ?-« 
He  had  lodgings  at  Muswell-Hill. 

How  far  did  you  live  from  biro?— Tvt 
miles,  to  the  best  of  my  knowledge ;  be  ffs- 
quently  used  to  come ;  I  have  made  him  coflcs 
and  sent  up  a  dish,  he  always  drank  it  ontdf 
the  spout,  which  surprised  me,  that  I  tbooght 
him  delirious. 

How  long  ago  is  that  ?— I  believe  it  is  aboil 
twelve  mouths  ago,  to  the  best  of  my  kiioir- 
ledge. 

Have  yon  often  seen  lord  Ferrers  behave  ii 
that  manner  ? — I  never  saw  him  behave  like 
any  other  gentleman  in  my  life. 

Was  the  coffee  hot  when  he  drank  it  eat  tf 
the  spout  ? — Hot.  He  always  weut  about  tki 
town  Uke  a  roadman,  throttled  me,  and  threw 
me  down  in  the  yard,  one  day  when  he  took 
the  horse  away. 

Did  you  think  lord  Ferrers  a  madman?— I 
know  he  was  by  all  appearance. 

Was  he  generally  thour^ht  so  by  other  peo* 
pie  ?— By  all  the  whole  tuwu. 

A  Lord,  When  he  threatened  to  break  ope* 
vour  bureau,  and  to  use  you  ill  if  you  did  not 
let  him  do  it,  was  he  in  liquor  ? — El.  William. 
Sober  as  1  am  now. 

A  Lord,  Did  you  ever,  upon  any  occasiM 
when  he  committed  these  outrages,  observe  thai 
he  had  been. drinking? — El,  Williams.  Never; 
he  never  drank  in  a  morning  but  a  little  tea  or 
coffee,  or  some  broth. 

By  Earl  Ferrers, 

Have  you  ever  seen  me  commit  any  otbet 
acts  of  outrage  besides  those  you  have  roen»  . 
tioned  ? — A  great  many  more  that  are  worse. 

Name  them. — Swearing,  curing  and  damn* 
ing  us ;  and  wishing  us  all  at  hell,  and  himself 
at  hell ;  and  threatened  to  break  the  glasarsf 
and  talked  to  himself  for  hours  together  in  bed. 

Was  he  drunk  or  sober  at  those  ltn(iesf~» 
Very  rarely  ;  but  he  seemed  more  to  h%  tft* 
,  turned  in  bis  mind. 


Jor  Murder, 

Mrnttoti  die  circumilance  abrml  inv  comings 
L|kft  mare,  -My  loicl  cftrne  for  tlie  mtti-e^ 
^■li  cbtircii-t'.mf't  anil  brought  his  scr- 
MF^ti^  A  livimmrr  in  hi»  liurtd,  and  f^utiv, 
ib  tt  tuck  10  his  lisiiicif  jiiiil  broke  ihc  Rioljli; 
Mjifo  bv  vi'»Jeuce  of  armu,  nnil  knocke<l  me 
HMriili  lii^  crnii  and  run  tlie  tuck  into  my 
^Kl,  letirhcfi  tlie  blood t  1  was  olitit^ed  Id 
^H  Kuri^con  to  ntifud  bim  ;  and  luok  the 
^^i»av  by  Turee  ornrnis  ;  and  if  Any  body 
S!lo  Itimit^r  lwm«  he  said  be  would  blo«¥ 
hr  hrmas  utit.  He  alvrav^  had  pistots  no- 
ily  knew  of.  I  nefer  Ka\v  miy  gentlen^an 
It  mine  to  my  house  before,  ihni  bad  ibose 
[t)ir<i  ahtMii  ibfiu.  f  used  to  tike  to  tuke 
vm  out  of  the  bed  cbaniberf  but  was  iifraid  to 
l9ch  tbiMn,  for  ft:ar  of  what  be  should  do  to 
9  hiniM'lf,  hy  >.eeii)g^  bts  itiitid  so  disturbed. 
liVrre  those  outrarrcH  comrtiitte*!  wUt:n  he 
It  drunk  or  sober  ?—S<tber  for  the  general; 
4  VI ben  he  look  the  mare  away,  as  lober  as 
!  is  now, 

Eirl  of  H'tfdmicke,  Inform  tlieir  lordwhips, 
lietlier,  heftrre  my  bod  ivirne  in  ibts  mHoitiT  to 
jM^  mare  out  of  the  slabJe,  lie  had  before 
I^Bjr  servant  to  t)i>inaud  the  mil  re*  and  bad 
^frfosetl  ?—  Wiliiami.  V>s,  be  ha«l,  the 
^wtj  isone  to  cburrh>  We  ulways  krpt  it 
Ijkr  lockf  bei*anse  there  was  more  of  his 
HH^^i  horses;  anrl  nohndy  wai  to  go  tnlo 
^^kle  but  hill  lord>»bip*i»  ostler. 

'    The  lion.  Mr.  Ruhcrt  Shirity  SWOrn, 

Examined  by  Earl  Ferrm. 
What  relation  are  yoo  to  m<^  ? — Drolher. 

<^v!i^  the  last  lime  that  you  and  I  had 

tlion  (oi^etber  ?  -^A ( most  four  yea r^i 

.til  three  Jind  four  ypars. 

•t  lime  in  what  lif^ht  did  you  look  u[>ou 

lather  turnet!  in  your  bt-ad. 

Hbere  any  disorder  in  the  family  ?  and 

Vaa  that  ?-»Lurd    Mtrnry    Ferrers   bad 

ioii  kDovr  Itdy  Barbara  Shirley  7—1  do 

I  know,  of  your  own  knowledgfe,  any 
\  carl  Meury  thiit  was  a  lunatic  ? — 

)  yoa  tny  reason  (o  lielieve  thai  I  have 
Bicted  with  tbr  hkt!  disorder?—!  have. 

'  to  name  your  realms.  — My  rra^ons 

it  wb^u  I  fived  at  Biirlou  upon-Trent, 

hkhip  came  (o  my  bonne  with  concealed 

[hi   your   pocketn;    pockeiH  ibfit  were 

porfro!^  hir  that  use  1  apprehend  \ 

it   you   tikeviibe   hud  a   aniek-or'Sneo 

|a  ft  is  ealliMl;  and  I  :<  p  pre  bended  uiy- 

att  the  Umily  in  ^rcau  danger  at  that 

|ftnd   I  HAS   oblit;ed  to   shut  the  doors 

Wou  ;  upon  ibjAt  1  wrote  to  m}'  brother^ 

J    Washm^^ion    Shirley,    lbj«l  I   appre- 

lyuii  lo  be  a  lunatic,  and  wnuld  join  with 

aling  uut  A  commission  ns^uiiii^t  you. 

I  any  otbi  <  to  heticTe  me  a 

liny  ^arr^  —Yes. 

I  your  ^ea>l^M.>^.- -  i  ...u-  toidnfiip  has 

Illy  tiUd  [Dy  oftinioQ  to  rtlAtioii  lo  yuur 


A.  D.  n<50. 


[0i2 


Ul.. 


affairs,  wbieh  I  hai'e  toM  you  to  the  beit  of  mj 
rapacity  ;  but  you  was  ii  lit  ays  so  unsteady  and 
jenloits  of  me  and  ytuir  friends,  when  »e  were 
endeatouriuif  to  serve  y<»u»  that  you  would 
never  venture  to  U^i^i  us  tu  any  thfni:-  in  which 
we  could  be  of  service  to  you.  I  have  likewise 
aero  you  in  several  Rtrang^e  postures,  walking* 
al»out  with  (feat  confuMion  of  mind,  auil  wat 
often  very  aoseut  for  a  considerable  time ;  when 
I  have  been  aikinf^  vou  a  qtiesiioo^  I  could 
hardly  tretan  ansner  from  you. 

Was  it  usual  for  me  to  y^i%  armefl  ?-•*!  beliere 
for  four  years  past,  or  very  near*  you  have 
hardly  ever  gone  without  concealed  pistols 
about  you. 

Did  i  use  to  go  armed  formerly  when  yoil 
knew  me? — I  never  knew  tbat  *hia  lorilsbip 
went  armed,  till  be  came  to  M»y  house  ai  Bur- 
Ion- upon^Trent,  which  was  the  last  time  I  savv 
htm. 

Do  yoa  know  any  thio(r  more?— I  Ikiva 
further  to  say,  that  my  lather  modi*  a  cetile^ 
mint  in  1741 »  which  you  subjected  yourhLdf  (o, 
and  artpfiesced  under 'lor  near  twenty  yetirs  ; 
anil  then  (ireftrred  a  bill,  id  order  |i»  set  ihiic 
ietllemeut  aKide ;  and,  contrary  to  itic  opininn 
of  yuur  aolicilor  and  counsel,  you  still  would 
insiKt  upon  doin^it,  and  obiifLt^'d  me  to  put  in  an 
answer  for  myself  and  my  Aon. 

_  Do  you  know  of  my  beingf  subject  to  AU  of 
flolent  rage? — 1  cannot  say  but  J  baie. 

Did  you  ever  see  lue  i^a  ouirageoua  as  not  fo 

know  the  difference  betneeu  go<>d  imd  eiilp 

1  really  cannrrt  pariiculari^e  any  tbini^,  His  so 
loutf  ajfo;  but  upon  occn?ions  1  have  fcetfu  you 
extremely  pasiionate  anti  warm  ;  and  so  much 
so,  ihut  I  believe  you  did  not  kuow  what  >ou 
did  B€)melimes» 

Do  you  think  Ibnt  these  violent  passions  you 
speak  off  arose  from  conbtitutioual  defects  :'— | 
really  believe  so. 

If  you  have  any  thing  more  to  offer,  men- 
tion it  yourself  \  I  have  tio  more  fjoestroua  to 
ask  you. — I  have  nothing  more  to  otfer. 

Lord  Cndagan,  How  lonj^  was  it  before 
this  accident,  ihatyou  wrote  lo  captain  VVa^b- 
ingtou  Hhirley  aliuut  takint;  out  a  commi^Kion 
of  luuacy  oijamsl  my  lord  I*- — SkirUy.  It  is  up- 
wards of  iHo  years  a^go  since  I  w  rote  to  him. 

Doctor /v'Ari  MonTor  sworn. 
En^amined  by  Earl  Ferrcn, 

Did  you  know  the  late  earl  |*i;rreT«f^^f  did. 

Did  ycu  know  bim  in  any  and  what  dis- 
tetnperP'^l  uttendcd  bim  a*i  a  physician  «\beti 
be  wiin  under  the  unhappy  miluence  oMuuHcy, 

Have  you  heard  all  tl^e  evidence  ihat  hatf 
been  given  in  this  caoae,  on  the  charge  agaiiisl 
earl  EerrerK,  on  both  aides  f-^i  harr. 

You  are  d«»iri;d  to  mention  what  are  the 
usual  symptoms  of  lunacy. — Uuconirnon  fury, 
not  caused  by  liquor,  nut  very  fref|iieMily 
raised  by  it  ;  many  others  there  are  which  tend 
to  violence  against  other  penoui  or  airniott 
tberuseU'cs:  I  do  not  know  a  smuigi^r,  u  more 
conatant,  or  a  more  uuerring  fti'mpt<iui  uC 
luDacy  thttn  jcdou«y»  oc  av^i»^v^v;i%  ^v>\\^>A 


SIJl 


•t  GE02C-E  IL 


TriJ  Iff  Etai  Terrene 


[941 


H.fli«  Lv^  ^3k^r-ija%  li  Hnvt  bees  fcscrxTj  & 
«ir'.:v»«<«v>*  bc  .  uvui .' — I  kftve  kJH«B  ic  to 
ut  «A.  Mc  wc  jr^9<nt^- 

Hit  «Me:k   itf  fk0t  caf  itifKfi  vk^di  hare 
k0w«  ^v  ^44  *j  tae  wiiACHCs  are  AjtoptMM  of 

^;f  6r».  M f  Vir>K  if  ibe  BttUe  lord  wflBS 
to  rj«ut  «>va  vu:  ^kce^t^,  I  ofajed  to  ii. 

L.  H,  J.  Lat'I  Ferren,  do  ^oa  desre  toot 
^^^j^A  I*  •!*  jMard  apoo  ibM? — £ari  lerrtrt. 

K^y.  '.f  H<,r'iMv.kt,  M  T  Wr  if,  this  qoodoo 
M  vy*  %^Mir^^  mdit^  tA  a.^  the  doctcr't  opi- 
ft  /M  o;^r>  the  re«oU  of  the  et idesce,  and  is 
f  «rj  rv^bilj  <>^»;eete«i  lo  by  the  coamei  fur  the 
cr^««3  :  II  the  D<>h!e  torti  at  lAe  bar  wtSi  bU ide 
t>^  <!|i>v..oo.  artrl  ask  whether  this  or  that  par- 
tM.-.Ur  faet  is  a  symptom  otiunacj,  1  dare  say 
U*^y  Will  oot  abject  t.)  it. 

Att.  GtH,    My  hrds,  I  vball  not. 

f^arl  Ftrrerg,  5Ij  lords,  1  sobmit  lo  have 
ft  t(ff  on  io  the  way  recommended  by  lord 
liard^icke. 

E*t\  Ftrrert.  I'lea^e  to  iDform  their  lord- 
abijrt,  whether  quarrel hojl^  with  friends  withoot 
«4'4Mr  U  a  symptom  of  lunacy  ? — Monroe, 
Verv  f:rt\t*:nt\y  one. 

Uhethtrr  l»«in'/  naturally  snvpicioui  is  a 
symptom  of  lunacy  f— Yes,  it  is  without  cause 
a  r^inUant  one. 

Whether  Cfoin^  armed  where  there  is  no 
danj(^r  in  a  symptom  of  lunacy? — That  must 
be  ac<tordiri((  to  the  circumstances. 

Whether  Koin;;  f^erally  armed  where  there 
i«  TM9  ftpparfht  diirifrrrr  is  a  hyraptom  of  lunacy  ? 
^  I  Hiioiilfl  tbirik  it  was. 

Whether  ftpittin((  in  the  lo^ikinir.^tass, 
c!"iirhiii((  the  tist,  ami  making;  mouths,  is  a 
K^-rriptorn  of  Uni^cy  ? — 1  hare  Jreqiient'y  Sfstn 
tutt.U  ill  lunatic  pf-Tson^. 

Wlxtli^r  \va!kiii((  in  the  room,  talking  to 
liiin4«:lt,  iind  rnnkiM|<  orJd  (gestures,  are  eyiup- 
tomi  of  iiinni-y  '.* — Very  common  ones. 

iKfpiRrrf-liiiii;  without  cau«e  a  Kymptom  of 
lunary  i*— It  is  a  very  frequent  attendant  up^iu 
such  untiappy  complaints,  aud  they  are  t^eiie- 
rally  rn»licious. 

Whi'ther  diinkinf]^  coiTee  hot  out  of  the  sptnit 
of  thr:  pot  is  u  nymptom  of  lunacy  ? — 1  sLuuiil 
think  it  one  in  the  present  case ;  il  is  not  a  ge- 
DfTul  one. 

WhelluT  lunatics,  when  they  are  an^^ered 
vith  or  without  cause,  kuow  what  they  are 
doin^P — S<im(>iinic8,  as  well  as  I  do  now. 

Is  itcommontu  hpvcsuch  a  disorder  in  fami- 
lies in  tlic  blood  i* — L'ufortunately  too  common. 

Whether  lun.itics  in  their  intervals  arc  con- 
scious of  iheir  being  lunatics? — They  are  con- 
scious of  it ;  many,  Inith  in  and  out  of  their  in- 
tervals ;  very  few  that  are  not. 

Wiicther  lunatics  are  ant  to  be  seized  with 
fits  uf  rn^c  on  a  Hudden  ? — Ycvy  ofieu. 

Without  auy  apparent  cause  P— Withoataoy 
apparent  cause. 


Is  tihefe  aaj  odwr  way  of  discofwing  wbe- 
tsaer  a  maa  blwoaiic  i«r  boC,  bat  by  tlw  irregi- 
lants  oi  him  bcUavinv  or  bis  pone? — By  tba 
STwi^jartj  af  his  bebanoor  ;  I  know  of  M 
ficbcr  larfliad ;  the  paJK  ^iacovcis  notbing  ia 
ScaeraL 

A  Lsr£  FIcaM  to  ialbna  their  lordsbipi^ 
wbctacr  a  peiasa  under  an  immediate  viailatioi 
fnm  Goif  of  madiiesB,  has  not  eommonly  a 
lever? — HoarDc.  Seldom  or  nerer,  anlessil 
may  be  ai  the  first  attack  of  the  disteapcr,  m 
in  SUBS  vcij  Yioicai  fit. 

Rcser  Crijiik  sworn. 

Esaraincd  by  Earl  Femru 

How  lon^  have  yoa  known  me?-»ilboat 
twelve  months. 

Did  « on  know  rae  wben  I  lived  at  Moml 
Hill  ?-lYes,  very  wel. 

When  was  that?— It  was  about  twcht 
months  a^. 

At  that  time  was  I  generallv  reputed  a  larf* 
man,  or  a  man  in  bis  senses^ — Generallf  re* 
puteil  alanatic;  some  said,  cracked  m  bisbcirf. 

£ar1  Ferrers.  My  loids,  I  desire  leave  Is  cd 
3Ir.  Goosu^y,  to  ask  hi m  a  question  1  fbigil 
yesterday. 

Air.  Gooitrey  sworn  again. 
Earl  Ferrers,     Have  you  obarrred  me  li- 
ma rkab'y  jealous  and  suspicious,  and  for  ahslf 
Cocstrey,    Very  remarkably  so  all  the  while 
I  had  the  honour  to  be  concemetl  for  biro,  mA 
much  more  than  any  other  person,     la  tte 
course  of  time  that  f  was  concerned  Ibr  lit 
lordship,  he  has  been  at  differeitt  times 
L,  H.  S.     You  are  not  to  igo  into  a  dctoL 
Earl  Ferrers.     3Iy  lords,  1  bare  done  ailh 
my  eTidence ;  but  it  is  impoMible  f<ir  mt  10 
sum  up,  and  what  I  havi*  to  offer  io  yourlori- 
ships  1  liave  reduced  into  writing,  and  deiiie 
the  Clerk  may  read  it. 

L.  IL  S.  Is' it  of  your  lordship's  own  wriiiBf  ^ 
Eurl  Ferrers.     5ly  lords,  the  attorney  g«t 
it  copied. 

Clerk  reads: 

Aly  lords ;  It  is  my  misfortune  to  be  accofrf 
of  u  CI  ime  of  the  most  horrid  nature.  5ly  ^ 
fence  is,  in  g^eneral,  that  1  am  Not  Guilty:  tk 
fact  of  Homicide  is  proved  ai^ainst  me  by  w>t« 
nesses,  who,  for  aught  I  can  say  to  the  cot* 
trury,  speak  truly. 

But  if  I  know  myself  at  this  time,  I  cu 
truly  affirm,  1  was  ever  incapable  of  it,  kfltHr- 
iuj^ly  :  if  I  have  done  and  said  what  has  bed 
alleged,  1  must  have  been  deprived  of  mj 
senses. 

i  have  been  driven  to  the  miserable  necessilf 
of  proving  my  own  want  of  understandiif » 
and  am  told,  the  law  will  not  allow  me  theii- 
sistance  of  counsel  in  this  case,  in  which,  efll 
others,  I  should  think  il  most  wanted. 

The  more  I  stand  in  neeil  of  assistaneei  ibf 
greuter  reason  i  hove  to  hope  for  it  from  yW 
lordships. 

Witnesses  bara  bcca  called  lo  praff  mf  iK 


Jot  Murder* 

Ity— tr>  nroTf  tn  unhappy  ilisorder  of  miiiJ, 
hvtijrli  I  am  <v?ievitl  tu  bc  ttiider  the  ne- 

If        J  t  directly  proved  me  to  in* 

•ton  •■  not  10  knour  the  liift'erence  between  a 
lil«rni  and  on  immorfil  miction,  ihey  have  at  leatl 
prtnrciJ  ihat  I  wits  liable  to  be  tiriven  and  hur- 
ficif  into  thai  unhappy  condition  upon   ?ery 

\  liijMi  will  consider  whether  my 

i-jn^  rogc,  modnesa  (or  wbate? er  it  may  be 
calfed)  was  the  cffiMHof  a  weak  «r  distempered 
\  or  wbethor  it  «ro«©  from  my  <»w  n  wicked- 
,  irr  indttenliofi  to  my  duty. 
If*  I  con  Id  bat e  contruuled  my  raf^e^  1   am 
erahk  for  ttie  eonsequences  of  it.     But  if 
l^tiimhl  not,  and  if  it  was  the  mere  c^ect  of  a 
^  '  '  brain,  I  am  not  answerable  for  the 

\em, 
lordi,  I  mention  these  things  as  hints — 
il  not,  indeed  1  cannot,  enlarge  upon  this 
jecrt ;  your  Jordships  will  consider  all  cir- 
uitttanceSi  and  [  arn  sure  you  will  ilo  tne 

btt  hut  a  matter  of  doubt,  your  lordships 
rtin  the  hnxnrd  of  doing  lue  injualice,  if 

find  me  (niilty« 

y  Uifdfj,  If  tny  in<nnily  had  lieen  of  my 
«»  #Uin|f,  na  the  sudden  eHeiTt  of  drunken - 
i  ftlianld  !>«'  witliout  eitcii&e.  But  it  is 
d,  by  the  wltneii»ef  for  the  crown,  that  I 
not  kn  fi(|UOf*. 
IVJr.  KtrkUtuK  who  drank  and  conversed 
with  me,  in  order  In  betray  me,  (Mr.  Attorney 
iflnjr  cootcnend  bis  caution,  hut  not  bis  honesty) 
^ipl<aeuU  owt  as  ihe  most  irrationnl  of  all  mAd- 
bien.  St  the  (ime  of  my  doingf  a  deed  which  1 
Itilrrt  upon  with  the  titmosi  »hhoirence. 

The  Counsel  for  the  Crown  will  put  your 
kirdthipi  in  mind  of  evffy  circumstanee  ag^iinst 
cne  ;  I  must  require  of  your  lordships*  justice^ 
tf>  recollect  every  circumstance  on  the  oiber 
#d#. 

My  life  is  in  your  hands,  and  I  haye  erery 
llnu^  to  hope,  as  my  conaeieiice  does  not  con- 
demn me  of  the  crime  i  slantf  locttsetl  of;  for 
I    *'"'  rtf»  preconceived  malice;  and  was  hur- 
thc  perpetintiun  of  tbi<a  fatal  deed  by 
of  a  disordered  imagination. 
nk  of  thit,  my  turin,  is  an  allliGlion, 
ri  he  m^f  ravated  only  by  the  neceaaity 
iij  it  my  defence. 

i  tod  Almigbty  direct  your  judgments, 
4Uid  correcl  my  own  ! 

Earl  Ferrm.  My  lord*,  I  wIU  mention  nne 
Circumttance,  which  t  «lid  s|»eak  of  yesterday  ; 
ti  wa<  sntd,  that  I  knew  of  a  lease  Jobnson  had, 
-krui  It  has  never  been  proved  ;  therefore,  1  ima^ 
it  what  1  asserti^d,  that  I  did  not  know 
<t  he  admitted  an  Irmh. 
S.  Earl  Ferrers,  llatJi  your  lordship 
•tiy^  Ihinif  further  to  offer  f 
t1  Ftrrcrit^     No. 

Gen.    My  lonls,  It  is  now  tny  duty,  to 
Sly   before  your  lordships  somt  oliscrfntious 


A,  D.  1760. 


[!Mff 


Qpon  the  evidence  offered  both  for  the  king  and 
the  prisoner,  in  ruply  to  the  defence  made 
agninsl  the  charire. 

The  fact  of  killing  Mr.  Johnson  (the  pertron 
Darned  in  the  indictment,)  is  admitted  as  well 
as  proved.  The  noble  lord  ut  (he  bar  only 
denies  the  cnnseauence ;  that  the  fact  is  mur- 
der. For,  he  tells  your  lordehips,  that,  upon 
considenng  all  the  circumstances,  he  is  satis* 
tied,  that  he  was  incapable,  knowingly,  of 
doing  what  he  did  ;  and  therefore  insists  upon 
an  iocapacity  and  insanity  of  mind  in  his  de^ 
fence. 

My  lords,  it  is  certainty  true,  that  the  fact  it 
not  murder  without  malice ;  so  natural  juttico 
•ays  ;  so  the  law  says,  on  which  the  indict- 
ment is  framed :  and  malice  must  depend,  in 
every  case,  upon  the  will  and  undcrstimding  of 
the  party.  If  the  defence  is  founded  in  truths 
as  the  noble  prisoner  at  the  bar  has  seen  the 
anxiety  of  your  lordships  to  give  it  all  due 
weight,  throuj^h  the  whole  course  of  bis  trial ; 
so  now,  in  the  conclusion,  he  will  receire  from 
you,  as  his  jtjdgstf,  the  full  benefit  of  that  de* 
tieuce  in  his  acrpitiiaL  If  it  is  not  founded  in 
truth,  I  am  perauaded,  that  no  other  cousidera- 
tion,  respecting  the  rank  and  quality  of  the 
noble  prisoner^  and  his  relation  to  your  lord- 
ships,  will  turn  your  attention  from  the  eyi- 
dence,  nor  make  the  least  impression  upon  the 
Urmnets  of  your  justice. 

Before  I 'observe  upon  the  evidence,  I  will 
presume,  with  your  lordships'  indulgence,  ta 
state  to  you  the  legal  notion  of  that  defence^ 
which  has  been  urged  and  attempted  in  proof. 

My  lords,  the  law  of  England,  which  if 
wisely  adapted  to  punish  crimes  with  severity^ 
for  the  protection  of  mankind,  and  for  the 
honour  of  government,  provides,  at  the  same 
time,  with  the  gi'eatest  equity,  for  the  im- 
becdity  and  imperfections  of  human  nature. 
Til  ere  fore,  my  lord  chief  justice  Hale  (ihe 
weight  and  authority  of  whose  writings  are 
known  to  your  lordships  and  to  the  whole  king- 
dom) explains  the  law  npon  this  subject,  at 
large,  with  his  usual  clearnesa  and  accuracy, 
k  is  in  his  5rst  ▼olume  of  the  History  of  the 
Pleas  of  the  Crown,  (fol.  30,)  where  he  tracet 
all  the  dintinrtioDS,  which  the  nnlure  of  Ibia 
queation  admits,  as  itconcema  the  trial  of  cri- 
minals for  capital  offences.  1  will  collect  the 
substance  of  what  be  says,  and  submit  it  tr» 
your  lordships,  as  founded  not  only  in  law  and 
practice,  but  in  the  most  unerring  rules  of  re«^ 
SOD  and  justice. 

My  lords,  he  bcf^lns  with  f^j«erying,  that 
**  There  ia,  1st,  a  partial  insanity  of  mind,  and 
there  is,  Sdly,  a  total  insanity,  isi,  partial  in^ 
sanity  is,  either  in  rea]»ect  to  things,  when  they, 
who  are  competent  an  to  some  matters,  are  not 
an  as  to  others ;  or  else  it  is  partial  in  re«pect 
to  the  degree.  This  is  the  condition  <d*  many  ^ 
es^Mfcially  of  metancholy  peraons.  At  to  sucIh 
a  partial  maaoity  will  not  excuse  them ;  for  (he 
tavii)  that  paraotM  who  are  felons  of  Ikem* 
selves,  and  other  felons,  are  under  a  dei^ree  of 
it,  when  they  oflend/*    It  k  ditfii^oll  to  draw 

»  P 


947]  33  GEORGE  11. 

the  line,  which  divides  (Mnfect  from  partial  in- 
sanity ;  and  be  refers  it  to  the  discretion  of  the 
jud^e  and  jury,  who  must  duty  weigh  and 
consider  the  wliole ;  **  lest  on  one  side,  there 
be  a  kind  of  inhumanity  towards  the  defects  of 
human  nature ;  or,  on  ilie  other  side,  too  much 
indulgfence  given  to  mat  crimes.''  Then,  my 
lords,  he  s(>eaks  of  the  general  rule,  which  he 
would  choose  to  lay  down,  as  the  best  measure 
of  his  own  judgment ;  and  it  is,  **  that  a  |>er- 
son,  who  has  ordinarily  as  great  a  share  of  un- 
deratandinff,  as  a  child  of  fourteen  years  of 
age,  is  sncn  a  person,  as  may  be  guilty  of  trea- 
son or  felony.  2dly,  as  to  total  insanity  or 
alienation  of *^mind,  which  is  perfect  madness, 
this  (lord  Hale  agrees)  will  plainly  excuse  from 
the  guilt  of  felony  and  treason." 

Bui  he  distinguishes  under  the  head  of  total 
insanity,  between  *'  that  sjiecies,  which  is  fixed 
and  permanent ;  and  lunacy,  which  comes  by 
j^riods  or  fits." 

Of  this  latter  kind  be  expresses  himself  thus : 
<<  drimes  committed  by  lunatics,  in  such  their 
distempers,  are  under  the  same  judgment,  as 
those  committeil  by  men  partially  insane.  The 
person,  who  is  aluKilotely  mad  for  a  dav.  kill- 
ing a  man  in  that  distemper,  is  equally  not 
guilty,  as  if  he  were  mad  without  intermission. 
But  such  persons,  as  have  their  lucid  intervals, 
have  usually,  in  tjiote  intervals  at  least,  a  com- 

Ktent  use  of  reason ;  and  crimes  committed 
them  are  of  the  same  nature,  and  punish- 
able in  the  same  manner,  as  if  they  had  no 
Bucb  defect." 

My  lords,  afterwards,  he  treats  of  that  in- 
sanity which  arises  from  drunkenness,  and  lays 
it  down,  that  ''  by  the  law  of  £un;land,  such  a 
|i«rsun  shall  have  no  privilege  from  this  volun- 
tary contracted  madness,  but  shall  have  the 
same  judgment,  as  if  he  were  in  his  right 
icnsi's"  (unless  it  be  occasioned  by  medicine 
\in>kiU'iilly  administered,  or  poison  accidentally 
ukvti.)  Indeed,  it  iiy  such  practices  an  habi- 
tua!,  fixed  frenzy  be  caused,  it  puts  the  man 
ill  the  like  condition,  with  respect  to  crimes, 
an  if  that  frenzy  \uTe  at  first  involuntarily 
•oulractcd. 

Mv  lords,  tho  risullof  the  whole  reason- 
ins:  oi'  this  n  ise  jiiiti;:e  and  great  lawyer  (so  far 
aa  it  is  immediuiely  relative  to  the  prese4it  pur- 
pose) Ntnnds  thus,  if  there  be  a  total  perma- 
iJHitt  want  of  reiison,it  will  acquit  the  prisoner. 
If  there  be  a  total  temporary  %vant  of  it,  when 
the  offence  uas  committed,  it  uill  acquit  the 
prisoner:  but  if  thrre  be  only  a  partial  degree 
•«)f  insanity,  mixed  with  a  partial  degree  of 
reason ;  not  a  full  and  complete  use  of  reason, 
but  (as  lord  Hale  carefully  and  emphaticallv 
r.xpresses  himself)  a  competent  use  of  it,  suf- 
ficient to  have  restrained  those  passions,  which 
produced  the  crime  ;*  if  there  be  thought  and 

*  8ee  also  upon  this  subject  the  case  of 
£dward  Arnold,  vol.  16,  p.  693,  and  particu- 
larly lord  £rBkine's  most  sa^radous  and  pro- 
found disquisition  into  the  subject  in  the  case  of 
Hadfield,  a.  d.  18(Ki,  iu  this  CoUectioOp  there- 
in referred  to. 


Trial  of  Earl  Ferrers, 


[948 


design ;  a  faculty  to  distinguish  the  ntture  of  ac- 
tions ;  to  discern  the  difference  between  morsl 
good  and  evil ;  then,  upon  the  fact  of  the  offeooe 
proved,  the  judgment  of  the  law  most  take  place. 

Aly  lords,  the  question  therefore  must  be 
asked  ;  is  the  noble  prisoner  at  the  bar  to  be 
acquitted  from  the  guilt  of  murder,  on  aoconst 
of  insanity  ?  It  is  liot  pretended  to  be  a  osa- 
stant  general  insaniry.  Was  be  under  tbe 
power  of  it,  at  the  time  of  the  ofifence  eom- 
mitted?  Could  he,  did  he,  at  that  time^di^ 
tinguish  between  good  and  evil  P 

The  same  evidence,  which  estaUiabes  tk 
fact,  proves,  at  the  same  time,'  the  capacitjr 
and  intention  of  the  noble  prisoner.  Did  M 
weigh  the  motives?  Did  he  proceed  withd^ 
liberation  ?  Did  he  know  tlie  conse^uenoesf 

My  lords,  he  weighed  tbe  motives.  Tbi 
two  witnesses,  who  speak  most  strongly  sad 
materially  to  this  part  of  the  cause,  as  well  h 
to  every  other,  are,  Sarah  Johnson  the  daughter 
of  the  deceased,  and  Mr.  Kirkland  the  nv- 
geon. 

The  circumstances  prored  by  their  evIdctBoc 
shew,  that  the  malice  conceived,  on  this  u* 
fortunate  occasion,  was  steady,  eoof,  and  pR- 
medilated.  Mr.  Johnson  had  acted,  for  m? 
years,  as  steward  to  collect  the  rents  of  nei 
lands  as  lord  Ferrers  had  in  possession ;  ani  bi 
was  himself  tenant  of  one  of  the  farms.  It 
the  time  of  pas«iing  the  act  of  parliament,  m 
years  a^>,  relative  to  the  noble  lord's  eilMi 
and  affairs,  Mr.  Johnson  stood  ao  well  in  ha 
opinion  and  favour  as  to  be  recommended  hy 
his  lonlship  to  be  receiver,  for  tbe  various  trail 
and  purposes  in  the  act.  ISomething  passed  m 
that  occasion,  which  disgtisted  the  noble  M, 
and  made  him  jealous,  that  Johnson  had  tahi 
part  against  him.  From  that  moment,  be  ca- 
tertained  resentment  and  hatred  in  his  hcMi 
ATore  lately  still,  he  took  offence  against  Johi- 
son,  as  to  a  contract  for  the  sale  of  coals  apn 
part  of  the  estate,  in  which  his  lordship  tlioiiglil 
(as  he  seems  to  be  knowing  and  attentive  ii 
his  private  business)  that  there  had  been  sow 
collusion,  to  impose  upon  him. 

My  lonls,  the  first  instance  of  his  reimt- 
ment  appeared  to  you  from  the  evidence  of 
Sarah  Johnson,  the  daughter:  that,  iu  tlie No- 
vember preceding  the  killing  of  Ikt  father, 
lord  Ferrers,  accompanied  by  Mr.  Cliflbnl,  de- 
livered a  paper  to  Johnson,  tlie  boily  of  wbich 
was  voluntarily  admitted  hv  my  lord  to  be  of 
his  own  hand- writing.  It  was  a  notice  to 
Johnson  to  quit  the  farm  which  he  rentt:il,aBd 
Clifford  was  the  intended  successor.  Thi«  sifp 
proceede<l  from  resentment,  and  it  was  so  ex- 
plained aflerwards  by  himself  to  Kirkland,  wbca 
he  said,  that  he  had  long  wanted  to  drive  Jobs*  , 
son  out  of  the  farm,  and  make  him  return  H. 
Cheshire,  from  whence  he  came.  My  hadib 
it  is  very  plain,  that  the  noble  lord  took  bis  rt- 
solutton 

Earl  Ferrers.  Mr.  Solicitor,  you  mistake;  tbi 
notice  was  given  a  twelvemonth  ago  last  Nt- 
vember ;  it  was  not  given  in  tbe  last  Novcate* 

Soi.  Gen.  My  lords,  I  am  extrraiely  oUfc' 


m] 


Jor  Murder* 


D  ibe  oohLe  lord  at  i[ie  btr,  for  fceitiug  me  ri^bt 
n  Ibo  ItfMt  circumitiioce ;  and  hope  tliat  he 
riU  always  do  it,  wlieDe?er  I  wbtake.   I  tuean 

be  na  cjcaet  ai  1  aio  able.  ^\y  lords,  tlie 
iew  with  which  1  meptioD  tlie  notice  lo  turn 
fohiisnn  out  of  the  farm,  is  this  i  lord  Ferrert, 

order  to  shew  the  iu>proUabilily  of  his  con- 
iriving'  malice  against  Johnson f  has  relied  upon 
[.  that  be  was  alws^B  knovf n  lo  entertain  the 
imirsi  regard  and  frieudiihi|>  for  that  un- 
ortUQate  man*  dly  lords,  1  admit  the  friend- 
hip  and  ki aptness  down  to  the  time  of  pissiiij^ 
|»«  act  of  partiameDl :  aod  ]  iaid,  that  his 
Oillahip  had  recommended  Jcdiosoo  to  be  re- 

'[▼€r,  l£ut  soon  after  the  passing  of  that  act^ 
Otrtlitkty  chaoged  his  opinion.     It  i^  sutH- 

ntf  tbet-efoie,  that  the  uuiice  to  quit  the 
him  (wliich  wail  the  6rst  strong  mark  of  his 
iCKQlme ut  proved  in  evidence)  was  given  sub- 
•caucnt  to  the  proceedings  of  the  legiiilature. 
Whether  ihe  notice  was  given  last  November, 
or  in  the  year  preceding,  the  observation,  as 
ipolird  to  this  purpose,  remains  in  its  full  force. 

Mv  U>rd5^  t  was  saying,  that,  it  was  plain,  his 
lordship  graduA I iy  wroughtbimtkrlf  up  toareso- 
littiiN]  of  destroying  Mr.  Johnson.  The  daughter, 
8tfah  Johnson,  provcis,  that  his  lordship  de- 


dsretj 
iQt!i 

lipr  I ' 


iirved 
Bieoo 


taring,  when  she  went  to  Stanton, 
uf  the  18lh  of  January,  lo  see 
i.:^iLr,  that  he  dctigned  it.  He  de- 
Kukbnd,  that  since  the  year  1763, 
\m\  been  a  vtlUin  \  that  he  had  done 
1  light ;  that  his  lordship I'uUy  intend- 
^'1  Johnson  dead,  as  a  villain  who  de- 
death  ^  and  that  it  was  premeditated. 
I  plained  farther  to  Kirkland,  that  John- 
ton  had  colluded  with  iiis  enemies  lu  obtain  the 
iCI  af  parliament  ;  hut  added»  that  the  chief 
vmon^  which  had  jiwt  then  provoked  him, 
wti,  the  contract  wah  Mr.  Curzon,  in  relation 
to  the  ,  f'liiscoaU.    lit:  upbraided  John- 

it  g,  upuij  liis  deiitli-bed,  In  like 
(luMch.  And  though  the  witnesa 
,  Uiat  hu«  lortUhip  might  then  lie  raised  with 
or  in  some  degree,  yet  he  did  not  luj^  his 
feadaitanding ;  and  the  manner  in  which  he 
iOokc.  WM  temperate. 

I«)  can  there  he  a  clearer  firoof^  that 

iirisoner  weighed  the  motives  of  this 

Neither  these,  nor  any  other  motives, 

ify  it;  hut  the  evidence  nliew^,  that  his 

!t  was  not  absurd,  hut  rational  and  con- 

The  tame  crime  has  been  cummitttd 

Mton   grounds  as  slight,  by  men 

i^ht  of  setting  op  the  defence  of 

>  id  uvea  like  thoae  suggested,  might 

d  naturally  ««ork  upon  one,  the  course 

'9e  hfe  (as  explained  by  the  witnesses) 

ys  wo  many  mark<i    uf  ungovenied  (las- 

d.Mn.rit   tiie   same  motivei*  would   not 

tii[M:rs,  leis  suaceptible  of  vio- 

>wn. 

pmreeded  with  fqual  delib«m- 

Lhefact.  The  attention,  thoaifhtt 

V  with  which  he  acted,  are  remarkable. 

petfif  tbal  he  bad  apiioiiited  a  parti cu- 

ly  (bf  Mr.  JobiiMft  to  watt  opou  kiju. 


A,  D.  176a.  [950 

Friday  Ihe  IBth  of  January  was  fixed  by  the 
order  of  loid  Perrera ;  and  the  appointment 
was  made  tome  days  beforehand.  Elizabeth 
Burgeland  has  told  your  hirdship^,  ttiut  Mr. 
Johnson  was  expected  at  Htanlon  in  the  fore* 
noon  of  that  very  day.  Sarah  Johnstm  lellt 
your  lordsiiips,  that  she  heard  hei  father  de- 
clare, on  the  Sunday  preceding,  that  he  was  to 
attend  lord  Ferrers  00  Friday.  Kirk  land  proves, 
that  the  noble  prisoner  himiieU  said  to  ihe  wit* 
ness  at  Stanton,  that  upon  Johnson^s  coming 
into  the  mom,  they  liad  a  conversation  to- 
gether, after  the  door  was  Inched,  by  way  of 
warm  and  viident  expostulatitm  un  the  part  of 
tny  lord  ;  anti  that  he  tendert-tl  a  paper  lu  Ike 
signed  bv  Jolinsun,  acknowledging  his  vil- 
lainy. Elizabeth  Saxon  overheanl  part  of 
what  was  said.  That  paper  must  have  been 
the  lesult  cit  thought  and  consideration,  proba* 
biy  prepared  l^fure  Johnson  came.  Your 
lordships  observed  with  some  emotion,  the  ac* 
count  given  ot  ihe  impatience  with  which  con* 
feaatona  of  villainy  were  ex)>ected,  and  almost 
extorted  aherHards,  from  the  dying  man. 

My  lords,  when  the  wound  was  given,  the 
noble  loril  at  the  bar  told  Mr.  Kirklaod,  that  bt 
was  cool  at  the  time  he  did  it :  that  he  took 
aim;  but  not  ha%iog  killed  Johnson,  he  in- 
tended to  shoot  again :  that,  however,  nature 
got  the  better  of  resolution,  when  he  i>bserTed 
the  pain  under  which  Johnson  languished.  Jt 
is  proved,  that  in  the  evening,  whilst  Kirklaod 
and  lord  Ferrers  sat  together  in  the  still-roona, 
his  lordship  declared,  tnat  he  did  not  intend  ta 
shoot  Juhusnn  dead,  hut  only  to  make  hiai 
smart  ia  the  hip  mid  side.  Ttiis  was  taken  na*- 
tice  ol  l>y  the  noble  prisoner,  as  a  variation  in 
Kirkhnd'H  account  of  the  intention  with  which 
Johnson  was  shot,  inconsistent  with  what  tha 
witness  had  !.aid  before,  tiul  the  rariation 
probably  arose  from  my  lonPs  own  manner  of 
discoursing  during  that  evening.  The  obaenra- 
tiOD,  therelorc,  cannot  affect  the  credit  of  the 
witnesa  ;  and  tlie  intetUioD  declared,  of  kiUing 
or  wounding,  will  not  vary  the  construction  of 
l«iw  upon  the  fact  committecL  Y  our  lordshipt 
heard  too,  what  lord  Ferrers  said  in  the  hearing 
of  Sarah  Johnson  ;  that  he  had  tried  the  pistol 
through  a  deal  board,  and  knew  it  to  be  good. 
He  &aid  the  same  tiling  to  Kukland,  expressing 
same  surprise  (as  the  witness  understood  it)^ 
that  the  ball  diii  not  go  through  Juhusun. 

All  these  tircumstances  shew  the  delibert- 
tiou  tAith  which  the  noble  prisoner  proceeded. 

I^Iy  lorJs,  let  tue  now  ask,  when  the  motives 
had  been  weighed,  and  the  fact  deliberately 
committed,  Old  he  know  the  coti»ei]uence«  ? 

fits  first  thutight  was,  imitantly  to  j^nd  for 
the  assistance  of  a  surgeon,  and  to  enquire,  whe-> 
ther  Johnson  would  live  or  die.  'lite  daughter 
came  early  in  the  atWrnoou.  Tie  said  to  her» 
that  be  was  alraitl  of  being  prosecuted  ;  add- 
ing, that  if  she  would  not  pro«ecule  him,  he 
would  maintain  her,  and  her  tumdy.  Does  ni>t 
this  circaniftlance  prove,  that  Ite  readily  ai>- 
deratood  tlie  oonscquencea  ?  that  he  knew  bim* 
self  bgtiBd  to  anawef  to  Uie  law  for  bis  effence  ? 


I 


951]  SS  GEORGE  IL 

Vihen  Ku-kUu45  cumei  his  lord<bip  tempieJ 
bim  with  fair  promises,  to  prevent  the  neigh- 
bours from  teixiog  htm.  He  told  Kirk  hod, 
iUst  a  tsrf^  bill  wai  owing  to  bim  ;  and  my 
lord  said,  that  he  would  pay  part  of  it  ihetit 
and  the  rest  in  a  reasonable  liice.  J(i  talkiDer 
otar  the  circumstances  (which  he  recollectf*d 
dearly  and  calmly),  he  added,  that  he  could 
justify  himself,  thou^rh,  upon  his  surrender  to 
your  lordships,  he  was  douMfut  whelher  his 
jtistificatiou  would  be  approved.  From  what 
consciousness  in  liis  own  mind  ifid  that  doubt 
ariie  f  Ue  expressed  his  fears  during'  the  wlnile 
Cfeoin^,  that  Ue  should  t»e  seized.  He  was 
quieted  in  this  respect,  onfy  by  the  conrei^a* 
tioii  of  Kirktand,  and  the  manner  of  bis  beha- 
▼iouf.  Upon  Kirklnnd^fl  cominjf  to  StuntoUi 
my  hu'd  enffuired  much  into  the  probability  at' 
Jobuson's  dying".  In  the  first  visit  which  my 
lord  and  the  surgeon  made  to  Johnson  that 
evening,  bis  lordship  gave  material  instruc- 
tions; asked  sensible  and  pertinent  questions, 
particularly  as  to  the  place  of  the  wound,  and 
the  effect  of  the  ball  lying  in  the  abdomen. 
The  witness  thought  ilmt  Mr.  Johnson  would 
die,  from  the  very  moment  of  his  6rst  visit; 
but  be  told  your  lordships,  that  be  judged  it 
right  to  deceive  lord  Ferrers.  The  noble  pri- 
■oner  was  pleased  to  say,  that  the  caution  of 
the  witness  might  bccommendpd,  but  not  Ins 
honesty.  My  lords,  the  caution  proceeded 
from  honesty  :  be  was  unwilling  thai  hts  lord- 
cbip  should  escape.  This  was  due  to  civil  go- 
vernment, to  justice,  and  humanity.  To  pre- 
Tent  lord  Ferrers  from  taking  alarm,  and  at- 
tempting to  escape,  Kirkland  flattered  hira 
with  hopes  of  Johnson's  recovery,  during  the 
whole  evening ;  and  bis  lordship  was  told^  that 
if  the  people  should  endeavour  to  seize  him, 
the  witness  would  persuade  them,  that  there 
was  no  occasion  for  it.  About  eleven  o'clock 
At  night,  Mr.  Kirkland  went  up  airain  to  John- 
•on :  he  still  continued  to  amuse  lord  Ferrers 
with  hopes  of  Johnson's  recovery  ;  and,  at 
taking  leave,  when  Kirkland  gai?e  him  assur- 
ances on  that  subject,  my  lord  said,  then  be 
might  go  to  bed  in  safety  ;  and  retired  to  bis 
0wn  chamber^  What  do  all  these  circum* 
ilances  speak,  but  a  correct  knowledge  oF  the 
(kct,  and  apprehensmxi  of  all  its  consequences, 
either  as  the}'  concerned  Johnson,  or  himself  P 
When  he  was  seized,  did  he  shew  marks  of  m* 
sanity  ?  He  resisted,  for  some  time ;  but  ap- 
|»ear^,  in  every  respect,  iti  the  judgment  of  the 
witnesses,  to  be  of  sound  mind.  Afterwards, 
wheu  he  wa<;  led  into  Kinsey's  bouse ,  his  be- 
haviour was  decent ;  and  he  mad^  answer 
to  a  worthy  clergyman  in  the  commission  of 
the  peace»  who  visited  and  Admonished  him, 
that  be  knew  bis  duty  as  well  as  any  justice  of 
Ihepeace. 

Tills  is  the  substance  of  the  evidence,  which 
bat  been  offered  for  the  king ;  and  it  not  only 
proves  the  fact,  but  proves  it  to  be  murder. 

My  lords,  what  is  the  evidence  produced  by 
|he  noble  lord  to  weaken  the  force  of  it  ?  In 
Ihft  £fst  place,  t^^re  is  aoae  wbicb  appliea  to 


Trial  nfEnrl  Ferrerw, 


m 


any  I 


bi«| 


the  time  of  committing'  I  He  fkct.  His 
is  admitted,  and  drunkeimtt*  wmtli  aot  t$» 
euse  ;  a  nd  even  suppoeiif ^  ft  Im 
your  lordsbiiis,  that  ibe  uoble 
somelimes,  by  fits  and  staitiv,  under  a  drfrw^ 
lunacy  or  temjmrary  iosfafiity  ;  yrt  1/  be  «i| 
of  sound  n\ind  at  that  boiir»  be  is  a 
within  all  the  rules  and  tlisiin«!ti4io«  whti^ 
Hale  explains.     But,  my  lonis,   in  the 

El  ace,  1  must  obserre,  that  00  gpeiM^el 
as  been  offered,  whicti  (irovt?*  his  lom^i 
insanity  at  any  time  ;    for  hts  owa 
fiul  iu'thtir  cndeiivour*  lo  eh-  ''''^if 

pears  from  thetr  manner  of  i 
selves  in  their  original  exanun^iit^i,  -,  i>«a  oi 
more  iu  the  answers,  which  they  gave  10 ill 
questions  asked  u|»on  the  cro9«-e3C«iiiiniiifliL 
The  t«o  lirst  witnesses  culled  were*  Mr*  fti 
nefbid,  and   Mr.    Goostrey*       TKi^v 
the  insanity  of  the  noble  lord  r. 
sistol' flights.    They  say,  that  h 
would   talk  to  himself ;    tbnt    be  w 
strange  gestuies ;  that  tie  h jmI  friends. 
pecteil  them  ;  that  be  was  4»f  a  pu&ttive 
and  difficult  to  be  dissuaded   from  any 
or  restdution  which  he  had  once  foni 
I^Ir.  B^nnefold,  upon   the  erc«s»e] 
admitted,  that   he  never  knew  of 
wildness  done  by   bis    lordship,  nor 
physician  sent  for,  to  take  cfnie  ttf  '  ' 
respect.      He  said,   upon  the    whole, 
tliuuirbt  turd  Ferrers  bad  bcftter  parts 
standing  tiian  ordinary  men.      Mr. 
told  your  lordships,  upon  the  ei 
tlou,  that  he  had  done  busioe&s  sere 
for  lord  Ferrers ;  that  he  had  advised 
pared  deeds  for  his  lordship  to 
lie  had  assisted  in  sufferings  a  recover 
the  entail  of  the  estate  ;  and  admitted  ' 
and  capacity  in  general,  but  inferred 
from    positiveness   of    temper    and 
However,  in  answer  to  a  question  pro[ 
one  of  your  lordships,  he  naid,  that  he 
lord  Ferrers  capable  of  distinguish  ins  betii«l 
moral  end  immoral  actions. 

Several  other  witnesses  have  beeo  citteil> 
day.     1  will  tirst  meution   Mr.  Cj 
describes  similar  circumsfunces  with 
nefbld  and  Mr,  Goostrey,  fVoui  which 
lecta  the  insanity  of  the  noble  prisotii 
said,  that  he  had  observed  gre^ 
lord,  during  his  minority,  but  . 
dersiandiog.     He  coulB  not  rj.  , 

instances;  and  addeil,   that  his   lortlsl 
jealous  and  suspicious:    but  the  witnei 
saw  him   in   such  a  situiition,  as   dq 
capable  of  distinguishing  brtweeo  gtiod 
evd,  and  not  to  know,  thai  murder  was  a 
crime. 

BIy  lords,  this  account  of  the  state  *J 
noble  prisoner's  mind  is  consistent,  not 
with  a  considerable  degree  of  viod 
but  with  the  highest  degree  of  it.     It  tbe 
were  to  receive  such  excuses,  it  wimM 
sword  into  the  band  of  every  aava^ 
tioua  tuaui  tQ  disturb  private  lilc^  a 
order. 


I  eieciital 


?tafgm 
ith  !l|iJ 


fiSSj 


Jur  hturder* 


A.D.  1760. 


[954 


Mv  lord*,  tiscre  was  mother  wliness  of  i 
Oiffcfenl  Lti^l  a  maeb  tower  fort  ihau  those 
wlioin  I  liate  naineri ;  I  mean  EliKoheth  Wil- 
limos,  8lie  wms  the  oofy  pemon  who  siid,  that 
the  nwhle  c«rJ  was  slna^'S  mad.  When  she 
came  to  exptain  the  jnstunce^i  from  which  she 
ilrew  that  coiichisitm,  the  pntif  fpst  one  insisted 
Opiti  was  tidlctilous ;  the  aticfer  which  he 
iliewed  a^jiinst  a  servant,  who  hati  n^ected 
to  Lake  cmre  of  i  fovourite  raare«  intrusted  to 
hi'  I  I  f  rnent.  Thii  was  a  rivscity  so  na- 
I'l  f  It  he  deemed  a  symptom  of  road- 

mrn^i  »t'w  are  fiTC  from  it;  and  I  doubt  the  in- 
l«rre«ic«  w  ill  go  far  in  caries  of  ciimmon  life. 

The  two  next  witnesses,  whom  I  will  meo- 
littD,  are  the  brothers  of  the  nohle  earf.  My 
lonis«  1  own  I  fctt  for  them.  J I  gave  mepai'ti 
10  M*e  ih^'iru  in  a  cause  which  touches  a  bro- 
ther *s  life,  broujjrtii  to  the  bar  as  wiinesies,  to 
mittipite  the  consequences  of  one  misfortune, 
by  endeat^ottring  to  prove  aneiher  of  the  most 
lender  »»d  aHVcling  nature ;  and  if  they  had 
•^kc  stro tiller  to  matteis  of  conjecture^  opi- 
mon,  and  belief,  for  my  part,  I  could  ep.siJy 
hare  excused  them. 

ily  lords,  they  L>oth  spoke  with  caution,  and 
as  men  of  honour  ;  biit  one  of  them  was  the 
put  s  of  weltjlit,  who  earpresned  a  belief, 

iiL€ular  times,  ihe  noble  lord  might 
e  to  distinguiih  between  moral  good 
and  evil,  t  did  not  obyerve,  ihnt  he  s^ioke  ot  any 
Instance  within  Im  own  recollection.  Thecir- 
tiiiittaiices,  from  whicli  these  gentlemen  lo- 
hff^  (nwiuity ,  were  for  the  most  part  of  the 
tame  kind  with  those  which  came  from  the 
ouihs  of  the  other  witnesses.  They  did  not 
ry  the  markii  of  it  in  the  least  degree  be- 
od  ihiit  evidence.  And  Mr.  Walter  Shirley 
mtedf  tliat  the  nuble  lord  at  the  bar  had  long 
vals  of  reanon.  1  endeavour  to  rrpt-at  the 
on,  and  1  think  it  was  so.  Mr.  Robert 
told  your  lordships  I  that  he  bad  not 
the  noble  prisoner  for  four  years  pftal; 
tbe  last  Lime  of  seeing  lord  Ir'errers  was, 
BortOD  ii|>Qn  Trent.  He  mentioned  the 
ryiqg  of  plstots,  and  a  large  case  knife,  at 
ttime*  I  understood  him  to  say,  that  the 
\t  lord  generally  did  so;  the  witness  bad 
i  it  only  onc«  ;  but  from  that  circumstance 
Ear|Tueil  msAiiity.  Your  lordships  will  judge, 
^ bother  this  practice  min^lit  not  be  owing  to 
outy  and  violence  of  temper,  as  welt  as  to 
acy  and  madness.  Tbe  witness  added, 
lathe  had  written  formerly  to  his  brother  cap- 
^  I  Waalungtoa  Shirley,  about  takin^j^  out  a 
nniaaloti  ol'  lunacy  agaiufcl  lord  Ferrers; 
1 1  eotild  not  find,  that  any  measures  were 
k  la  oonaequence  of  tliai  opioioo  fit  en  by 
i  witoeis,  nor  did  he  himself  ever  lake  any 
I  towards  it,  nor  any  branch  of  bis  family, 
tost  witness  called,  ou  t>ehalf  of  Ihe 
priaooer,  was  Dc^ctor  Monro,  Me  was 
|bt  here  to  deecribei  what  symptoms  he 
•s  marks  of  lunacy  or  insanity.  If e 
^itf«  thai  there  were  nriaoy ;  and  on  being 
^*)^  |iarticularlyy  as  to  the  sevcrut  symptoms 
^^ggc«leil  iu  this  cause,  Doctor  Meuro  irti  led 


ifl  sptak  prindpally  <yf  three  marks  of  ftinte] 
The  first  was  common  fury,  not  caused 
liquor,  but  raised  by  it.  Knrelv  this  circum'- 
stnnce  will  not  infer  insanity.  The  nert  was, 
jealousy  and  suspicion,  uitb  causeless  quar- 
rel I  in^;'  Do  not  many*  who  are  not  lunatics, 
suspect  or  quarrel  witlinut  cause,  and  become 
dangerous  lo  their  neitfhbours?  The  third  was, 
carry  inq^  arms;  which  (he  said)  though  less  asual, 
mii^ht  be  a  mark  of  lunacy*  And  it  is  equally 
troe»  that  such  behaf  iour  may  prove»  in  many 
cases,  a  bad  heart  and  a  vicious  mind,  as  well 
as  lunacy.  51  y  lortls,  the  general  observation, 
whirhfiecurs  upon  Doctor  Monro*a  evidence,  is 
this ;  that  he  did  not  defcrihe  any  of  these 
things,  08  absolute  marks  of  lunacy,  so  as  t9 
denote  every  man  a  lunatic,  who  was  subject  to 
them.  Indeed  he  could  not  have  said  tt,  con- 
sistently with  common  sense  and  experience. 

Thifc  was  the  import  of  the  evidence  for  th« 
noble  prifioner.  No  wltuesaes  were  offered,  on 
the  part  of  tl»e  king,  in  rej»Iy  to  that  evideuce. 
And,  my  lords,  the  reason  why  ihey  were  not 
offered  was«  because  the  counsel  who  attend 
your  lordships  for  the  king,  chose  to  submit  it 
to  your  opinions,  vrbether  the  evidence  pro- 
duced for  the  prisoner  does  not  tend  tt> 
strengthen,  rather  than  weaken,  that  proof  of 
capacity,  which  arises  oot  of  all  the  circnm- 
stances  urged,  in  support  of  the  charge  f  From 
those  circumstances,  I  have  already  sliewn, 
tliat  the  noble  prisoner  was  conscious  of  whal 
he  did,  at  the  time  of  the  offence  committed  ; 
that  he  weighed  the  motives ;  that  he  acted 
with  deli  be  ration  ;  that  he  knew  the  cooae- 
quences. 

I  wilt  only  take  notice  of  one  thing  mor«« 
Your  lordships  Imve  attended  with  great  pa- 
tience, and  the  most  impartial  regard  to  justice, 
to  all  the  evidence,  and  every  observation^ 
which  has  been  laid  before  you.  Vou  have 
seen  the  noble  prisoner,  for  two  days  at  your 
liar  ^though  labouring  under  the  weight  of 
this  cnarge),  cro»is-examining  the  witnesses  for 
the  king,  and  examining  his  own  in  n  manner 
so  pertinent,  as  cannot  be  imputed  merely  t(> 
the  hints  and  udvice  of  (hose  agents  and  cuuti* 
sel,  with  which  you  have  indulged  him.  1  am 
persuaded,  from  the  appearance  and  comlad 
of  the  noble  prisoner,  I  hat  jrf  the  fact  itself 
would  have  admitied  iloubts,  and  probable  ar- 
guments, to  repel  th«  force  ol  any  one  material 
circumstance,  your  lordships  would  have  Iveard 
him  prcsa  tliose  arguments,  with  sense  aud  la* 
gacily. 

But»  my  iorda,  the  truth  is,  that  the  fact  tried 
this  day  Ktands  without  alleviation.  There  la 
not  a  colour  for  the  defence,  unless  it  arisei 
iVom  the  enormity  of  the  crime,  aggravated 
by  the  manner  of  commiUing  ii ;  au  old,  faith- 
ful servant  of  himnelf  and  his  family,  mur- 
dered in  cold  blood,  wliitst  he  was  pertortning, 
by  expresa  orders,  an  act  of  dutitui  atteudanca 
upon  UtH  mister;  murdered  iu  the  most  deli-* 
beinte  and  wilful  manner,  dcsttuctive  of  alt 
coniyence  in  human  society.  My  torda«  in 
aome  sense,  every  crime  grooteAa  1^^*«^  *^^ 


I 
I 
I 


I 


I 


I 


955]  33  G£ORG£  II.  " 

n^nlif.  All  craelly,  all  brutality,  all  rerengfe, 
ail  injustice,  is  insauity.  There  were  philoso- 
phers, in  ancient  times,  who  held  this  opinion, 
as  a  strict  nnaxiro  of  their  sect;  and,  my  lords, 
the  opinion  is  right  in  philosophy,  but  dan- 
gerous in  judicature.  It  may  have  a  useful 
and  a  noble  influence,  to  regulate  the  conduct 
ot'  men;  to  controul  their  impotent  passions; 
to  teach  them,  that  ?irtue  is  the  perfection  of 
reason,  as  reason  itself  is  the  perfection  of 
human  nature;  but  not  to  extenuate  crimes, 
nor  to  excuse  those  punishments,  which  the 
law  adjudges  to  be  their  due. 

My  lords,  the  necessity  of  his  majesty's  jus- 
tice; the  necessity  of  public  example,  called 
for  this  prosecution ;  and  the  effect  of  the 
whole  eridence  is  submitted  to  the  weight  and 
wisdom  of  your  judgment. 

Then  the  Lord  Uigh  Steward  returned  back 
lo  his  chair. 

Lord  High  Steward.  Lieutenant  of  the 
Tower,  take  my  lord  Ferrers  from  the  bar. 
(Which  was  done  accordingly.) 

Lord  Privy  SeaL  My  lords,  I  move  your 
lordships  to  adjourn  to  the  Chamber  of  Parlia- 
ment.— Lords.  Ay,  ay. 

JL.  J7.  S.  This  House  it  adjourned  to  the 
Chamber  of  Parliament. 

-  The  Lonis,  and  others,  returned  to  the 
Chamber  of  Parliament,  in  the  same  order  they 
came  down :  and,  afler  some  time,  the  House 
was  adjourned  again  into  Westminster- hall ; 
and  the  Peers  liein^  there  seated,  and  the  Lord 
High  Steward  in  his  chair,  and  the  House  re- 
sumed, the  Serjeant  at  Arms  made'^roclamation 
for  silence  as  usual. 

L.  H,  S.  Your  lordships  have  beard  the  evi- 
dence, and  every  thing  that  has  been  alleged 
on  both  sides ;  and  the  solemnity  of  your  prs- 
ceedings  requires,  that  your  lordships'  opinions 
on  the  question,  of  guilty  or  not  guilty,  should 
be  delivered  severally,  in  the  absence  of  the  pri- 
soner, beginning  with  the  junior  baron ;  and 
that  the  prisoner  should  afterwards  be  ac- 
quainted with  the  result  of  those  opinions  by 
me.  Is  it  your  lordships*  pleasure  to  proceed 
now  to  give  your  opinions  on  the  question  of 
Guilty,  or  Not  Guilty  ? — Lord*.  Ay,  ay. 

Then  the  Lord  High  Steward  stood  up  un- 
covered ;  and,  beginning  with  the  youngest 
peer,  said, 

George  lord  Lyttelton;  What  says  your 
lordship?  Is  Lawrence  earl  FeiTers  Guilty  of 
the  felony  and  murder  whereof  he  stands  in- 
dicted, or  Not  Guilty  ? 

Whereupon  George  lord  Lyttelton  standing 
up  in  his  place,  uncovered,  and  laying  his  right 
hand  upon  his  breast,  answered, 

Guilty,  upon  my  honour. 

In  the  like  manner,  the  several  lords  after- 
mentioned,  being  all  that  were  present,  ao-   , 
■wercd  as  followeth : 

Lories.— Harwich,  Mansfield,  Walpole, 
llydfy  Vere,  PoBsonby,  Arcberi  FevenbaiDy 


Trial  of  Earl  Ferren,  [936 

Ravensworth,  Anton,  Fortetcoe,  fimee* 
Sandys,  Edgcumbe,  Chedwortb,  Mantford* 
Talbot,  Monson,  King,  Ducie,  Cadogin,  On* 
slow,  Balhurst,  Masham,  Middlefon,  Boyle, 
Delamere,  Berkeley  of  Strattoo,  Ward.Byroo, 
Clifton,  St.  John  of  Bielsoe,  Willougbby  of 
Parbam,  Wentwortb,  Willoughby  of  Broke, 
Dela warr,  Audiey,  Abergaveuoy  ; — Guilty  upon 
my  honour. 

Viscounts. — Folkestone,  Falmouth,  Bolin^Ki 
broke  and  St.  John,  Weymouth,  Say  and  Sdt; 
—Guilty  upon  my  honour. 

Earis. — llchester,  Fauoonberff,  Hardwiclu^ 
Cornwallis,  Guilford,  Uertfoi3,  Haraon^ 
Egremont,  Norlhumberland,  Fowls,  fiaok- 
inghamshire,  Gower,  Brooke,  Pcrtsmoal^ 
Harrington,  Effingham,  Ashbamham,  WaUe* 
grave,  Pomfret,  Macclesfield,  Stanhope,  Cov- 

ST,  Sussex,  Halifax,  iiylestbrd,  TaokervUhk 
artmouth,  Strafford,  Oxford  and  Mortimer, 
Hyndford,  Marchmont,  Aberdeen,  Breadil- 
bane,  Loudoun,  Moray,  Morton,  CbolmoD- 
deley,  Coventry,  Albemaile,  Rocbford,  Seu- 
borough,  Plymouth,  Holdeniesse,  Litch6el4, 
Shaftesbunr,  Cardigan,  Essex,  Sandwidi, 
Thanet,  Winchelsea  and  Nottingham,  Peter- 
borough and  Monmouth,  Westmorland,  Nor^ 
ampton,  Lincoln,  Pembroke  and  Montgome^; 
— Guilty,  upon  my  honour. 

Marquis  of  Rockingham.  Guilty,  opoo  bj 
honour. 

Duka, — Bridgewater,  Chandos,  Maockii 
ter,  Newcastle,  Kingston,  Ancaster  andKo- 
teven,  (ffreat  chamberlain),  Argyll,  Uarfts- 
rough,  Leeds,  Bolton,  Graftnu,  Richmei^ 
Cleveland  and  Southampton,  Devonshire  (M 
chamberlain),  Rutland,  (lord  steward)  Gnkf, 
upon  my  honour. 

Earl  Temple,  (lonl  privy  seal,)  Guilty,  opei 
my  honoiur. 

Then  the  Lord  High  Steward,  standing  a- 
covered  at  the  chair,  laying  his  hand  upon  hif 
breasti  said ; 

X.  J7.  5.  Mv  lords,  T  am  of  opinion,  thit 
Lawrence  earl  Ferrers  is  guilty  of  the  felooy 
and  murder  whereof  he  stands  indicted,  opos 
my  honour. 

X.  If.  S.  Your  lordships  have  unanimovlj 
found,  that  Lawrence  earl  Ferrers  is  Guiky  « 
the  felony  and  murder  whereof  he  standi  ii- 
dieted :  is  it  your  lordships'  pleasure  that  bi 
should  be  called  in  and  acquainted  tberefvitk^ 

lards.  Ay,  ay. 

Proclamation  was  then  made  for  ibe  lieuls* 
nant  of  the  Tower  to  bring  the  priaoner  to  lb* 
bar,  which  was  done  in  the  same  order  aik^ 
fore ;  and  af^wards  proclamation  was  IM 
for  silence,  as  usual. 

L.  H.  S.  Lawrence  earl  Ferrers,  the  Loidi 
have  considered  of  the  charge  of  fcJooy  aai 
murder  which  has  been  brought  affainsCyoaj 
they  have  likewise  considered  the  endcDee,0i. 
every  thing  which  your  lordship  has  allsM 


every  thing  which  your  lordship 

in  ^our  demce ;  and,  upon  the  wbole  _ 

thcu  lordshipi  hife  onaiiiiiioiiiljr  Aw^  I 


>  of  tbe  felony    and  murder 
Dil  tddicted* 
ulennut  of  Uie  Tower,  Uke 
Irom  lh«  bur* 

6  My  lordi,  1  move  yonr  lord* 
\n  ilie  C bomber  of  P'ttrliiiqAent. 
t  your  lordiliip^  ^^leasuro  to 
Cuambtr   of   Parliumetit  ?^^ 
f  ay. 

This  House  it  adjourned  to  the 
Tarliameut, 

Lords  returopd,  in  the  order  hefbre 
b  the  Chamber  of  Parliament ;  »nd, 
being  there  resuiiiciJ,  retiolvcd  lo 
Iher^  iti  order  lo  the  ^ivinc:  Jud|(- 
ft  the  said  earl  FerrcTs^  lo- morrow ; 
I  said  earl  be  broufrht  lo  the  bar  of 
[d  Wettminster-Hall,  for  that  pur- 
grow,  at  clerea  of  tbe  clock  lu  the 


k 


'iiK  TiiiaD  Da», 

^fidtiy,  April  181&. 

^Baud  others*  came  from  ttte 
Hniament  iulo  VVestmiiiiler-HttJt, 
le  order  as  on  Wednesday  last ; 
Irs  were  there  seated,  and  the  Lurd 
ird  in  his  chair. 

My  lordfl,  the  If  ouae  is  resumed, 
kordshifia*  pleasure  tbat  tbe  Judges! 
bred  ^-^^Lordt,    Ay,  ay, 

^  Seijeant  at  Arm «  made  procla- 
silence,  as  uaaal ;  and  alter viardi^ 
b  proclAmaliQO- 

trwf*  Oyez,  Oyez,  Oyea !  Lien- 
be  Tower,  hrinij  forth  your  pri- 
(►enee  eart  Ferrers,  to  thenar,  pur* 
I  order  of  the  Hous^  of  Lords. 

(ly  ipofcrnor  of  the  Tower  brought 
}  to  the  bar  in  the  Uke  form  as  be- 
|ica  be  kneeled  dowu. 

Your  lordiihip  may  rise, 
ant  at  Arms  made  proctatnttjoti  for 

tDce  carl  Ferrers,  when  yoo 

[bar,  I  acqiminted  your  lurd- 

your  I  rial,  my  lonb  your 

nously    found  you  Guilty   ul 

nd  murder  wliereor  you  stand  in- 

your  lonlsbip  tossy,  why 

should  not  pass  tipuD  you 


f  desire  that  the  Clerk  may 

"Vhichhedid]. 

niMt  ickoowledife  mvself  in- 
"•*"!  fair  snd  candid  1  rial  your 
1  me  with, 
'  thst  I  have  Irtitibled 
*thst  I  ws^slwsyH 
p^tn  me  the  grenlest 
i  prrrsded  on  by  my  I«iiit1y 
ia  was  vibai  they  theoiaelfes 


A-D.  1760.  [95S 

were  persuaded  of  the  tnith  of;  and  bad  pro* 
posed  to  prove  me  under  the  unhnppy  oireum- 
stauces  that  have  been  meifectually  represented 
to  your  brdslups. 

This  defence  has  put  one  off  from  what  f 
pm[»osed,  and  what  iierhspa  might  have  taken 
o(f  the  malignity  of  the  accusation  ;  hut,  as 
there  has  been  no  proof  made  to  your  lordshi|>S| 
can  only  he  di'emed  at  this  time  my  own  ■■. 
»ertion :  but  that  I  must  leave  to  your  lord- 
ships. 

My  lords  I  have  been  informed  of  this  itf* 
tenlioD  of  the  family  before  ;  and  your  lord* 
ships,  I  hope,  wtll  be  so  good  to  consider,  the 
agony  of  mind  a  man  must  he  under,  when  bis 
liberty  and  property  are  both  attacked :  my 
lords,  under  these  unhappy  circumitsnces, 
though  the  plea  I  have  attempted  was  uot  luf- 
fieient  to  acc|uit  me  to  your  lordships,  accord- 
mjg  to  the  laws  of  this  cnimtry ;  yet  I  hopt 
your  lordships  will  think,  that  malice,  repre* 
sented  by  tbe  counsel  for  the  crown,  could  not 
subsist;  as  J  was  so  unhappy  as  in  have  no 
person  present  at  the  time  ot  Ine  fatal  accident. 
It  was  impcssible  for  me  to  shew  your  lord* 
i^hips^  thai  I  WHS  not  at  that  instant  possessed 
of  my  reason. 

As  ihe  cirriimMances  of  my  ease  are  fresh  ia 
your  lordships'  memories,  f  hope  your  lunl- 
■hips  will,  in  compa.<«ion  lo  my  infirmities,  li« 
kind  enough  to  recommend  me  to  his  majesty's 
clemency. 

My  lords,  as  I  am  uncertain  whether  mj 
unha'ppy  case  is  within  the  late  act  of  pari  is* 
inent,  if  your  lordships  should  be  of  opinion 
that  it  is,  I  humbly  hope  the  power  of  respiting 
the  execuhon  will  be  estended  in  my  favour, 
that  1  m»y  have  an  opportunity  of  preparinfjr 
myself  for  the  great  event,  and  that  my  triendi 
mny  be  permiltetl  to  have  access  tome. 

If  any  thing  1  have  off«9^d  should  bethought 
improper^  k  hope  your  lordships  will  impute  it 
lo  Ihe  great  distress  I  am  under  at  this  juncturt. 

L.  JL  S.  f1  as  your  lordship  any  thing  else 
tooffer?— Earl  Ftfrrcri.  No. 

L.  U.  S.  Alske  proclamation  fat  sitenca 
whilst  judgment  is  giiiiig. 

Sojcanl  at  Jrmt,  Oyeas,  Oye/.,  Ovca!  Our 
sovereign  lord  the  king  doth  strict fy  charge 
and  command  all  maontr  of  persons  lo  keep 
silence,  whilst  judgment  is  giving,  upon  pain  of 
imprisoniueni. 

Lord  High  Si€ward»  Lawrence  earl  Ferrers; 
Rb  majestv,  from  his  royal  and  e<)iial  rejrard  to 
justice,  and  hi«  steady  attention  to  our  lyinstitii* 
tion,  (which  hath  endeareil  him  in  a  wonderful 
manner  to  the  universal  dntv  and  affection  of 
bis  subjects)  bath  commanded  this  mf|uiry  to 
lie  made,  upon  the  blood  of  a  very  ordinary 
subject,  agsmit  your  lordsliip,  a  pet- r  of  thu 
realm:  your  lordship  hath  been  arraigned |' 
hath  uleaded,  and  (lut  yourself  on  voor  |»eeni' 
and  liiey  (whose Judicature  is  founded  nnd  sub* 
sistsin  wis«lom,  honour,  and  jtii»^fce)  have  uosoi- 
inouftlyfouodyoar  lordhV  »!  the  felony 

antt  murder  charged  ia  i'  ..v^uu 


»59] 


SS  GEORGE  II. 


.  It  h  oiliftl,  my  lord,  for  eonrtt  of  jutlios^  be- 
fore they  prononnoo  the  dreadful  eenttooe  or- 
deined  by  tbe  law,  to  opea  to  the  pri^iier  tbe 
nature  of  the  crime  of  which,  he  ie  comrioled; 
ool  in  order  to  aggra?ote«or  afflict,  but  to 
awakeo  tbe  mind  to  a  doe  atlcntioo  to,  tod  ooo- 
wderalioD  of;  tlm  unhappy  situation  into  which 
Im  hath  brMf  ht  himfelfT 

My  lord,  the  crime  of  which  your  lordahip  is 
fiinnd  guilty,  murder,  is  incapable  of  agmva- 
tion ;  and  it  is  impossible,  but  that,  during 
your  lordship's  long  confinement,  you  must 
nave  reflectttl  upon  it,  represented  to  vour 
miad  in  its  deepest  sluides,  and  with  all  its 
train  of  dismal  and  detestable  consequences. 

As  yoor  lordship  hath  recei?ed  no  bane6t,  so 
yott  can  deri?e  no  consolatioo  from  that  refuge 
yon  seemed  almost  ashamed  to  take,  under  a 
pretended  insanity ;  since  it  hath  appeared  to 
us  all,  from  your  cross  examinatiop  of  the 
king'*  witnesses,  that  von  reeollected  the  nri- 
Butesl  ciffcumstancca  of  Ihcts  and  courersations, 
to  which  you  and  the  witnesses  only  could  be 
privy,  with  the  exactness  of  a  memory  mere 
than  ordinarily  sound ;  it  is  therefore  ss  unne- 
cessary as  it  would  be  painful  to  me,  lo  dwell 
longer  on  a  subject  so  black  and  dreedftil. 

It  is  with  much  more  satisfaction,  that  I  can 
remind  your  lordshijp,  that  though,  from  tbe 
present  tribunal,  before  which  you  now  stand, 
you  can  receive  nothing  but  strict  and  equal 
justice ;  yet  you  are  soon  to  appear  before  an 
Almighty  Judge,  whose  unfotmNnable  wisdom 
is  abJk,  by  means  incomprehensible  to  one 
narrow  capacities,  to  reconcile  justice  with 
■lercy;  but  your  k>rdship*s  education  must 
have  informed  yon,  and  you  are  now  to  re- 
member, such  beneficence  is  only  to  be  obtained 
by  deep  contrition,  sonnd,  unfeigned,  and  sub- 
stantial repentance. 

Confined  strictly,  as  your  lordship  must  be, 
§ar  the  very  short  remainder  of  your  life,  ac- 
cording to  the  provision  of  the  late  act ;  yet, 
from  the  wisdom  of  the  legislature,  which,  to 
nrevent  as  much  as  possible  this  beinoas  and 
•  horrid  offence  of  murder,  hath  added  infamy 
to  death  ;  you  will  be  still,  if  yoii  please,  inti- 
tled  to  converse  and  communicate  with  the 
ablest  divines  of  the  Protestant  church,  to  whose 
pious  care  and  consolation,  in  fervent  prayer 
and  devotion,  I  most  cordially  recommend 
your  lordship. 

Nothing  remains  for  me,  but  to  pronounce 
tlie  dreadful  sentence  of  tlie  law;  and  the 
judgment  of  the  law  iS)  and  this  high  court 
doth  award,  [ 

'  That  you,  Lawrence  earl  Ferrers,  return  : 
'  U)  the  pnson  of  the  Tower,  from  whence  you  I 

*  came ;    from  tlieoce  you  must  be  led  to  tlio 

*  place  of  execution,  on  Monday  next,  being 

*  the  Slat  day  of  this  instant  April ;  and  when 

«  you  come  there,  you  must  be  banged  by  the  i 

*  neck  till  you  are  dead,  and  your  body  must  < 

*  be  dissected  and  anatomized.  | 

•  And  God  Almighty  be  merciful  to  your 

*  iouil» 

1  I 


Trial  ofEari  Ferrers, 

L.  H.S.  Lieutenant  of  the  Tew 
the  prisoner  from  the  bar. 

Which  being  done,  proclamalkm  v 
for  silence,  as  usual. 

L.  H,  S.  My  lords,  this  Trial  M 
end,  nothing  remains  to  be  dene  bei 
determine  the  C^mmmim,-^l4ftds. 

L.  H.  S,  Let  proclamation  be  i 
dissolving  the  Commitsion  of  High  8 

Serjeant  at  Arms,  Oyez,  Oyex,  Oi 
sovereign  lordilie  king  does  strictly  d 
command  all  manner  of  pAiona  here 
and  that  have  here  attenoed,  to  depart 
the  peace  of  God,  and  of  our  said  sovei 
the  King ;  for  his  grice  my  Lord  Higb 
of  Great  Britain  intends  now  to  dii 
Commission. 

Then  the  white  staff  being  deliver 
Lord  High  Steward,  by  tbe  gentleuM 
of  the  Black  Rod,  upon  his  knee,  1 
stood  up  uncovered  t  and  holding  thi 
both  his  hands,  broke  it  in  two,  and 
tbe  Commission  to  be  dissolved;  s 
leaving  the  chair,  came  down  to  the  e 
and  said,  Is  it  your  lordships'  pleasui 
joum  to  the  CLiamher  of  PariiamentP 
Ay,  ay. 

X.  H.  S.  This  House  is  adjonme 
Chamber  of  Pariiament. 

Then  the  Lords,  and  others,  retonn 
same  order  they  came  down. 

And  the  prisoner  was  carried  bad 
Tower  of  London. 


Tlie  following  is  Foster's  Rsr 
Lord  Ferrers's  Casb^ 
having  been  inserted  in  t 
ceding  Edition  is  here  reta 

The  House  of  Peers  ooanimonsi; 
earl  Ferrers  guilty  of  tlie  felony  ai)d 
whereof  he  stood  indicted ;  and  the  E 
brought  to  the  bar,  the  High  Stev 
quainted  him  therewith ;  and  the  H< 
mediately  adjourned  to  the  Chamber 
liament.  And  having  put  the  followfai 
tions  to  the  Judges,  adjourned  to 
day  : 

First,    *  Whether  a  peer  indicted  € 

*  and  murder,  and  tried  and  convicted 
<  before  the  lords  iu  parliament,  oq| 

*  ceive  judgment  for  the  same,  aeon 

*  the  provisions  of  the  act  of  parliaaMi 

*  25lh  year  of  his  majesty's  reign,  i 

*  An  Act  for  better  preventing  the  boni 

*  of  murder  ?'  • 

Second,  <  Supposing  a  peer  so  infii 
c  convicted  ought  by  law  to  reeciveflK 
c  ment  as  aforesaid,  and  tbe  day  appii 


•See    lioaeb's    Hawkins's   ___ 
Crown»  book  9,  c.  44,  §^18,  «iM|e»5%J 


fir  Murder^ 

^ment  for  ex^cuiioa  stioutd  lapse 
Bnch  execution  (kuie,  wtiftUer  a  tieir 
fty  t»G  AppoitiM  for  the  ej^eculiao*  and 

18tti,  I  lie  Uoiiae  th^o  fiiltint^  in  the 

t]t  iiurti^iTilMiil.  lilt*  f  .rirtW  'Kii^t  t4m>^[)    j[], 
iHlimOll 

'  ,        1  nf  the 
wbioh   they  baii  a|;creeil  od,  aod  re* 

form  ihut  niorniiiuf* 
ftlahifi  Biided  iiinny  wei^lity  reasans  in 
^  th€  opinion,  mnoh  be  iirg«d  with 
lagth  and  propriety,    tod  detivered 
oriiiti^fdigntty. 

To  tht  Fir  it  QiUAtion. 

'e  all  '•''  riniinrjfi^  that  a  {»""'  ►..*«;.  let! 
y  ai»  iiidliiedar  <'d 

pefor^  M   lu  pariiai!  _     ,       -iu 

re  jud^tnrnt  lor  the  saint!  according 
provisions  of  the  act  of  p^irliaiuent 
k^lii  yetkr  of   Li»  mnjesty't  reig'n,  iu- 

An  Act  lor  l)«lter  prr«eDiiii^  the  bor- 

lof  niurdff/ 

To  the  Second  Question. 

llog;  the  day  aopoioted  by  flic  judfi:- 
execution  ghuutd  l&pseliefore  such 
I  done  (whiclk  buwevtr  the  lai^^  imII 
\me)  i  we  are  al)  of  opinioti  that  a 
may  be  oppftinled  for  ttie  execution, 
the  Htgb  Court  of  Piirhaaient  be- 
h  such   peer  shoulil   be  attainted,  or 

jrourl  of  Ki  11^^*8 -beach,  the  p«riiiimt;iit 
sittinif ;    the  record  o(  the  attainder 

pperty  reinu?ed  tutu  that  court. ^ 

1^8  the  Jud|fes  went  upon,  in  their 
I  tlie  6rst  Queslioni  are,  1  presume, 
tn  be  mentioned  at  Iurj;t'.     And  the 
aud  ordered,  that  jtnlij^cDent 
QOed  in  \Ve«trninster*h4ilT  pur- 
act. 
upon  whicli  the  Jud^e*  founded 
the  tiecond,  relating  to  the  ftir« 
of  the  House  after  tlu:   11  i;fh 
LssiondissoUetl,  v^hicb  is  usual- 
inouncLU^'' judgment,  triuy  poS' 
me  further  discusi»ioo.     I  will 
>re  1   coucludct  tpeution    those 
beil  with  u^e,  and  i  bdie?c  with 
of  ihe  judges. 
UUt  before   ihey  adjourned  lo  the 
V  <er-hall  for  pronounc- 

r  "ii\  ordered,   that  exe- 

r-tj  I'j  uiv  5th  day  of  May  fol^ 
which  day  execuliiui  wrs  dotic 
uant  to  Ibe  jud^muTii,  ami  the 
'ed  at  Surgi^ons-hall  to  be  dissected 

lloiti«  Sheriffs  for  Execution,  lee 
nt  ofhia  Execution. 

REASONSi,  lice. 

liot;  io  tbe  llouiie  of  Peers, 
judiciil  cnpadty,  vrlictber  upon 


A.  D.  176a 


[9G8 


writ  of  i 


'  error,  imjwMt:liuicnl,  or  indiclmem  re-  i 
uiored  tbither  l>y  rertioraii,  m  in  jodL'Tiittii  f»f  1 
law  A  priKrpcdiujj  bi-frjre  the  king:  iu  ^  ' 

And  therefore  the  Houte»  in  all  ilir*  ^ 

may  oot  improperly  be  &uled,  The  Court  o|*j 
<nir  Lord  the  Kin^^in  Pnrliauveni.  ■ 

This  Court  is  founded  upon  immeDwrUl 
u^age^  upon  the  law  and  costoui  of  parlia- 
iDeat,  and  is  part  of  th£  orig^itial  ayatem  of  o^f 
ooufiiitutton.* 

•  Rlr.  llarrinj^ioni   in   his  oliserv»itions  oa 
Magna  Charts,  liaviug  noticetl  the  ugrceioeut  * 
of  the   !29ih  cbapter  with   a    Norman  cbajter 
nearly  couteu\poriineou&,  proceeds^  "  I  should 
thercWe  conceive  that  the  trial  per  pares,  iti 
the  29th  chapter  of  Magna  Chat  ta^  wa«  meant 
chieily  lo  relate  to  tjie  trial  of  tbe  borons  by  i 
their  peers,  tboug^h  it  bath  fortunately  fur  the 
liberties  of  this  country  been  expounded  to  ex* 
tend  to  the  trial  of  all  persons  by  a  jury.     U 
seems  very  extraordinary,  that  we   have  not, 
after  this  lit^th  article  of*^ Magna  Cbarla,  more 
frequent  accounts  in  the  early   part  of   tbe 
English  history  of  peers  being  tried,  either  by 
their  peers  or  a  jury.     The  earl  of  Gloucester 
^a^  excicutcd  iu  the  time  of  Edward  tbe  2nd 
without  any  such  regular  trial ;    [Brady,  vol. 
3^  p.  ICO.]  as  were  also  the  lords  llastiujfs  and 
Ry  vers  iu  the  rdgn  of  RichartI  the  iid,    [Col- 
Mer*s  Ecole.  [fist.  vol.  1,  p.  687]."    Aud  in  a 
note  be  adds,  ^^  Notwittibtunding  tliis  29ih  ar- 
ticle of  Magna  Charta  was  ehiefly  intended  to 
prevent  tbe  undue  i at) iience  uf  tbe  crown  iu  the 
trial  of  a  |ieer,  it  turned  out  afiern'ards  to  be  I  lie 
great  cuuse  of  iheir  oppression,  as  before  the 
statute  of  Wiltiam  the  Sd,  which  directs  aU 
the  lords  to  be  summoneil,  a  peer  of  England 
was  the  only  subject  of  this  country  wh<»  had 
not  a  fair  and  iniiitfcient  trial  ;    it  seems  to  be 
a  mty  extraordinary  r  r     ■     -^inn  i»f  this  sta- 
tute, which  is  rather  I  than  contend - 
ed  ^^r  by  Mr.  Justice  1   ■-.^  >>  ;u  bi&  Treatise 
on  TreAjjou,  that  tbe  spiritual  lordk  need  not 
be  summoned  under  tbe  words  ail^  who  hsve  at 
right  tosii^  and  vote  in  parliatneut,  which  I  ap- 
prehend to  have  meant  only  the  making  it 
uuueoefl8«ry  to  sutiifnqn  peers  wbo  were  mi- 
nors, or  professed  Papists.*'    In  observing  upon 
the  ♦*  Siatulum  de  tinibus  levalis,**  37  Ed.  J, 
Mr.  Barrington  accounts  for  tbe  canon  prohi* 
biting  ecclesiastics  to  determine  io  cases  of 
blond  by  a  conjecture,   '*  That  the  office  of  a 
crimiuai  judge   was  anciently   considered   aa 
partiiking  of  the  nature  of  an  executioner,  and 
therefore  deemed  an    oBice  of  blood,   which 
was  supposed  rather  to  detract  from  that  re- 
verence  and  good  will  which  the  canons  of  the 
church  endeavoured  to  procure  and  estAbtiali 
to  the  body  of  clergy." 

The  I5tb  Edw.  3,  stat.  1,  chap.  S,  reciting 
that  before  that  lime  the  peers  of  the  laud 
have  been  arrested  and  impribonetl,  &c.  aiad 
some  put  t^  death  vuthout  judgment  of  their 
peers,  enticts,  that  no  peer  of  tbe  land  shall 
Le  broiL^ht  tn  judguaiuU  to  lose  his  tempo- 
ralties,  dec.  nor  to  be  arrMled^  &c*  but  bj 


D03]  35  GEORGE  II, 

It  ii  open  for  all  the  purposes  of  ju Jic^ture 
ilurrng'  the  cnnliiiiiance  of  the  parlionient :  it 
openetb  at  the  heginninjr^  nnd  shutletli  at  the 
end  of  erory  session  ;  just  as  llie  court  of 
Kinf^^S'benclif  which  is  likeivtsc  in  judginent 
of  Uw  heU[  hefiire  the  king  himsell,  opcoetb 
and  Bhutteili  with  ibe  tcrrn. 

The  authfihtj^  of  this  Court,  or,  if  1  may  use 
the  expressinn,  its  constant  actir itv  for  the  ends 
of  public  justice^  independent  (»f  any  special 
powers  derited  from  the  croivn,  is  not  doubled 
m  the  case  of  writs  of  error  fnim  tluise  courts 
of  lavr  whence  error  lieth  in  parliaiucnt,  auil  of 
impeacli mentis  for  misdeineniiors. 

It  wa«  fiH-incrly  donbtetl,  whether  in  the  case 
of  an  impeachment  for  treason,  and  in  the  case 
of  an  indictment  nguiniit  a  peer  tor  any  capilal 
crimr  re  moved  into  parliument  by  Certiorari, 
whether  in  these  cast-s  the  Court  can  proceed 
to  trial  and  judgment  without  an  High  Steward 
appointed  by  special  comuuseiOD  from  tbe 
frown. 

This  doubt  seetfietb  to  hare  arisen  frora  tbc 
mot  disliui^iiisbing  between  a  proceeding^  in  the 
court  of  the  High  Steward,  and  that  bdorc  tbc 

itrard  of  the  said  peera  in  Ibe  parliaroeni,  and 
if  Of  r  ctise  any  peer  will  of  his  agreement  else- 
where, answer  or  be  judged  but^  in  tbe  pailia- 
menl,  tbe  same  shall  not  turn  iu  prejudice  of 
the  oUier  peers,  nor  of  himself,  in  any  other 
C«se,  except  he  he  sberiff  or  feriner,  &c. 

Tbc  titJitutc  L»Oih  lien.  6,  chap.  9,  recites  a 
donbt*  wbetlier  a  peeress  was  to  be  entitled  to 
tbe  piivileijeof  tlie  pceragfe^  under  the  xvonls 
in  tbe  C9th  chapter  of  Majjna  Cbarta,  **  le- 
pale  judicimii  paiinm  suorum,"  declares, 
Tbiti  such  ladies  9it  indicted,  or  bcreafter  to 
be  indicted  of  any  treason  or  felony  by  tbem 
done,  or  bercafterto  be  done,  whether  tbev  be 
inarrted  or  sole,  that  they  thereof  shall  b« 
brought  to  answer,  and  put  to  answer,  and 
judcfvil  before  sucli  judges  and  neers  of  Ihe 
realm  as  peers  of  the  realm  should  be* 

Aud  Mr.  Barringtou  reinarkfa,  as  somethinEr 
extrtordinarv,  that  no  peeress  had  been  trie^ 
for  a  capital  ofTeiicCt  which  mii5t  have  settled 
(be  doubt  ;  be  adds,  ''It  seems  rather  extra- 
ordinary, that  Ihe  peerage  (who,  like  other 
bodies  of  meo,  are  fjenerally  very  tenacious  of 
their  prif  ileges)  ibould  noi  bate  at  this  time 
iu.visted  upon  betnjf  tried  for  a  wisderaeanor  by 
tbeir  peers,  and  not  bv  a  common  jury,  as  ibe 
pi^judicet  of  such  a  jury  are  more  likely  to 
operate  io  a  misdemeanor  than  in  a  capital  of- 
fcooe.  Surely  the  words,  *  Null  us  liber  homo 
"^  capiVs/ur,  ant  imprisonetur,  aut  aliquo  alio 
*  modo  ilestrualur,  nisi  per  legale  judicium  pa- 
**  rium  suorum,*  seem  to  have  been  anxiously 
inserted  to  include  every  kind  of  criminal  pro- 
•eotition^  U  is  indeed 'not  only  a  provision  in 
fWrour  of  the  subject,  by  one  of  the  chapters  of 
Magnn  Cbarta,  but  seems  to  bare  been  like- 
wise the  law  of  cfcry  part  of  Europe,  wber« 
the  feudal  policy  had  been  intn»duced."  In 
support  of  which  last  assertion  be  refers  to 
T/iitmiiisrere«  and  BeauroaaoW. 


Ttial  of  Earl  Ferttft^ 

king  in  partiament  The  name,  §t4le,  an 
afiice,  is  the  same  in  both  cA%es  ;  bat  tb 
the  powers  and  pre-emiuences  auoes 
tlilfor  very  widely  ;  and  so  dolli  tbe  coo 
of  tbe  courts  where  the  offices  are  ex 
The  identity  of  tbe  naiue  may  tiAveoonfi 
our  ideas,  as  equivocal  words  often  do  if  t 
nature  of  tbio^  is  not  attended  to  ;  but  ibea 
lure  of  the  offices  proj»erJy  stmieil,  will,  1 1 
remove  every  doubt  on  thene  poiuls. 

Jn  the  court  of  the  High  Steward,  be  akwi 
judge  in  all  points  of  law  and  praci»c«i*  T 
peers  triers  are  merely  jo(t|^e»  of  laci,  and  i 
summoned  by  virtue  uf  a  |>recept  ffoo  i 
llig-b  Sleivard  to  api>car  tiefoce  him  on  tbei| 
appointed  by  him  for  tbe  trial,  •  Ut  r^  — ^ 

*  melius  sciri  poterit.' 

Tbe  High  Sieward*s  Comioiscion,  alvr  m\ 
citing  that  an    indictment   Hath   been 
against  the  peer  by  the  grand  jiiry  oftbt?  j 
county,  imjiowerelh  hino  to  send  tor  tbe  i 
ment,  to  convene  the  prisoner  belbf«| 
such  day  and  place  as  he  shall  appoia 
and  there  to  bear  and  deterraine  tbe  m 
such  indictment ;  to  cause  the  fieers  triers,  *l 

*  et  tales  per  quos  rei  Veritas  toeliua  teiii  | 
«  terit,^  at  tbe  same  day  and  plaee  Io  \ 
before  htui :   *  veritate  queintle  comp 
proceed  to  judgment  according  to  the  law  I 
custom  of  England,  aud  tbereupoo  to  {~ 
txrcution.l 

Ity  this  it  is  plain,  that  the  sole  ri^bt «Cj|i 
caUire  is,  in  cases  of  this  kiod,  verted  iii 
Higli  Steward  ;  that  it  residetli  solelj  m  i 
person ;  ami  conserjueotly  witbom  tlui  \  ^ 
missioUf  which  is  but  in  natoreof  B4 
of  Dyer  and  Terminer,  no  one  sl^  can  Ittfi 
in  order  to  a  trial.     And  that  wncn  Itaa  I 
mission  is  dissolved,  whieb  be 
breaking  his  staff,  tbe  Court  no  loi 

But  io  a  trial  of  a  peer  in  fiJift  | 
to  speak  with  legal  [»recisioti» 
in  parliament,  for  a  capital  olfeoeet  ' 
upon  im^ieacbmeut  or  indictmesil,  ili^  \ 
quite  otherwise.     Every  |>eer  pres 
trial,  and  every  temporal  peer  oath  a  i 
I  be  present  in  every  part  of  Ibe 
votetb  upon  every  question  of  Iaw 
and  tbe  question  is  carried  by  ib«  mt 
the  Hiyh  Steward  himself  vfffiiiciBc 
[leerj  and  member  of  Uiat  court,  m 

»  See  the  Case  of  lord  Detaaaerr, 
p,509. 

f  See  lord  Clareudon^s  CoinniiMiai 
Steward,  and  tJie  writs  and  |tf«cefls 
torv  to  tbe  trial  in  lord  MoHey'a  Caa 
Collectifin. 

;  »Ir.  Barrington  (Ofas,  w  S#  E4.  #  i 
opinion  that  lord  Coke  waa  nntstabf  «l 
asserted  that  the  Hi^  8teira^  ai  Ok  \ 
a  peer  roust  necessarily  be  a  lord  oC  | 
and  be  says,  **  1  have  looked 
rities  from  tlie  Year  B«>ok9«  d 
Ibis  position,  wbtcb  by  oo  ioemn 
be  assert*,  at  least  in  tbe  czieii  Ite 
tancedit    As  for  ibe  case  m  tllc«.  4  i 


Murder. 

BKB  DO  other  rig^bt. 

«i.ii<J  very  expe- 

d     re^Urity,  aod 

fr^Mliogy  to  appoint 

fcbe  time  of  the 
Co  sri?e  him  t^e 
«iclaD<l.    Butthii 
^e  coDstitatioo 
*  fouoded  ID 
'*ustoin  of 
<»made 


<s„'V 


■^'^<.?i-    -^ 


i>. 


K 


% 


.ijtuled  to 
..iofan  High 
wii  dissoWed. 
^  of  Impeach  menta, 
itiroea,  at  confereDcea 
emptCKd  to  interpose  io 
be  trial,  the  general 
ia  iaa  point  of  Judi- 
Lords  will  not  confer, 
Ihemsehea/'or  to  that 
cite  iosUnces ;  eyery 
the  Journals  of  either 
ny  of  them. 
aaes  applicable,  io  mv 
lestion.  And  I  ahall 
I  have  happened  since 
16  in  questions  of  this 

[i  pro?e8  the  niecessity 
ing  a  lord  of  parlia- 
econd  aotbority,  Tiz. 
led  in  the  Year  Book 
un  seigneur  de  parle- 
reason,  on  felony,  le 
atea  fera  an  grand  et 
grand  seneschal  d'An- 
inly  imports  nothing 
1  be  a  man  of  conae- 
*a  the  distinction  be- 
signeur  de  parlement.' 
le  trial  of  peers,  see 
.  49  tt  uq. ;  3d  Inst. 
Bacon's  Works,  yol. 
6. 

DOS  to  the  trial  in  the 
ek,  lord  Loyat,  and 
U 


A.  D.  176a  [966 

kind,  modem  oases,  settled  with  deliberation, 
and  upon  yieir  of  former  precedents*  gi?e  more 
light  and  aatiafaction,  than  the  deepest  search 
into  antiquity  can  afford.  And  also  because  the 
prerogatiyes  of  the  crown,  the  privileges  of  par- 
liament, and  the  rights  of  the  subjecU  in  ge- 
neral^  appear  to  me  to  have  been  more  studied 
and  better  understood  at,  and  for  some  years 
before  that  period,  than  in  former  ages. 

In  the  case  of  the  earl  of  Danby  and  the 
Popish  lords  then  under  impeachments,  (Lords' 
Journal)  the  Lords  on  the  6th  of  May,  1679, 
appointed 'time  and  place  for  hearing  the  earl 
of  Daiiby  by  his  oouniiel  upon  the  validity  of 
his  plea  of  pardon,  and  for  the  trials  of  the 
*«er  lords;  and  voted  an  address  to  his  ma- 
praying  that  he  would  be  pleaaed  to  ap- 
^  High  Steward  for  thoae  purposes, 
'otes  were  on  the  next  day  oonma- 
he  Commons  by  message  in  the 

^    ^  t  a  conference  between   tli« 

.^^«  Hubject  matter  of  that  mes- 

^*  ^ons  expreu  themselves  to  the 

^ect :  '*  They  cannot  apprehend 
^uld  induce  your  lordshioa  to  address 
«ajesty  for  an  High  Steward  tor  determin* 
.ig  the  validity  of  the  pardon  which  hath  been 
pleaded  by  the  earl  of  Danby,  as  also  for  the 
trial  of  the  other  live  lorda,  because  thev  con- 
ceive the  constituting  an  High  Steward  is  not 
necessary,  but  that  judgment  may  be  given  in 
parliament  upon  impeacbnient  without  an  High 
Steward."  And  concluded  with  a  proposition, 
that  for  avoiding  any  interruption  or  delay,  a 
committee  of  both  Hfouses  might  be  nomunated 
to  consider  of  the  most  proper  ways  and  me- 
thods of  proceeding. 

This  proposition  the  House  of  Peers,  after  a 
long  debate,  rejected,— Dissentientibus,  Finch* 
chancellor,  and  many  other  lords. 

However,  on  the  11th,  the  Commons'  propo- 
sition of  the  8th  waa  upon  a  second  debate 
agreed  to,  and  tha  lord  chancellor,  lord  presi- 
dent, and  ten  other  lorda  were  named  of  the 
committee,  to  meet  and  confer  with  a  commit- 
tee of  the  Commona. 

The  next  day  the  Lord  President  reported, 
that  the  committees  of  both  Houses  met  that 
morning,  and  made  an  entrance  into  the  busi- 
ness referred  to  them.  That  the  ComoKNia 
desired  to  see  the  commissions  that  are  pre- 
pared for  an  High  Steward  at  these  triala,  aod 
alao  the  commissions  in  the  hird  Pembroke's,f 
and  the  lord  Morley's  t  Cases. 

That  to  this  the  lords'  oommitteea  aaid, 
"  The  High  Steward  is  but  speaker  pro  tempore^ 
end  givetb  his  vote  as  well  as  the  other  lorda* 
This  changeth  not  the  nature  of  the  Court* 
Aod  the  lords  declared  they  have  power  enough 
to  proceed  to  trial,  though  the  king  shoold  not 
name  an  High  Steward.  § 

^  Afterwards  earl  of  Nottingham. 

f  See  his  Case,  vol.  6,  p.  1S09. 

1  See  his  Caae,  vol.  6,  p.  769. 

\  Jo  the  Commona'  Joanud  of  the  15tb  of 


i-Ji 


967] 


83  GEORGE  11. 


Trial  of  Earl  Ferrers^ 


[gn 


<>  That  this  seemed  to  be  a  satisfaction  to  the 
C^mmoos,  provided  it  was  entered  in  the  Lords* 
Journal,  which  are  records." 

Acf:onlini^Iy  on  the  same  day,  '<  It  is  de- 
clared and  ordered  by  the  Lords  spiritual  and 
temporal  in  parliament  assembled,  that  the 
office  of  an  Iligh  Steward  upon  trials  of  peers 
upon  impeachments,  is  not  necessary  to  the 
Ijouse  of  Peers ;  but  that  the  Lords  may  pro- 
cee<l  in  such  trials  if  an  High  Steward  be  not 
api>tiinted  according  to  their  humble  desire.*'* 

Ou  the  13th  the  Lord  President  reported, 
that  the  committees  of  both  Houses  had  met 
that  morning,  and  discoursed  in  the  first  place 
on  the  matter  of  a  Lord  Hij^h  Steward,  and  had 
perused  former  commissions  for  the  office  of 
JHigh  Steward.  And  then  putting  the  House  in 
mind  of  the  order  and  resolution  of  the  preced- 
ing day,  proposed  from  the  committees,  that  a 
new  couitnission  might  issue,  so  as  the  words  in 
the  commission  may  be  thus  changed,  viz.  in- 
stead of, "  Ac  pro  eo  qubd  officium  Seneschalli 
Angliffi  fcujus  prssentia  in  hac  parte  requiritur) 
ut  accepimus  jam  vacat,"  may  be  inserted,  '*  Ac 
pro  eo  qu5d  proceres  et  magnates  in  parliamento 
nostro  assemblati  nobis  hnmiliter  supplicave- 
rtmt  ut  Sene^challum  Angliie  pro  hac  vice  con- 
•tituere  dignaremur;''  to  which  the  House 
agreed  .f 

It  must  be  admitted,  that  precedents  drawn 
from  times  of  ferment  and  jealousy,  as  these 
were,  lose  much  of  their  weight ;  since  passion 
and  party-prejudice  generally  mingle  in  the 
contest.  Yet  let  it  be  remembered,  that  these 
are  resolutions  in  which  both  Houses  concur- 
red, and  in  which  the  ri{rht8  of  both  were 
thought  to  be  very  nearly  concerned  ;  the 
Commons'  right  of  impeachmg  with  effect,  and 
the  whole  judicature  of  the  liOids  in  capital 
cases.  For  if  the  appointment  of  an  High 
steward  was  admitted  to  be  of  absolute  neces- 
sity, (however  necessary  it  may  be  for  the  re- 

Mav  it  standeth  thus  :  Their  lordships  further 
declared  to  the  conxnittce,  that  a  Lord  High 
Steward  was  made  Kac  vice  only.  That  not- 
withstanding the  makiunr  uf  a  Lord  Hii;h  Stew- 
ard the  Court  remaiiiLMl  the  same,  and  was  not 
thereby  altered,  but  still  remained  the  court  of 
peers  in  parliament.  That  the  Lord  High  Stew- 
ard was  but  as  a  speaker  or  chairman,  for  the 
more  orderly  proceeding  at  the  trials. 

*  This  Rpsoluti:'n  my  Lord  Chief  Baron  re- 
ferred to  and  cited  in  his  ari^ument  upon  the 
second  Question  proposed  to  the  Judges,  which 
is  before  stated. 

t  This  amendment  arose  from  an  exception 
taken  to  the  commission  by  the  committee  for 
the  Commons,  which  as  it  then  stood  did  in 
their  opinion  imply  that  ilie  constituting  a  Liord 
High  Steward  was  necessary.  Whereupon  it 
was  agreed  by  the  whole  committee  of  Lords 
and  ComnHMis,  that  the  commission  should  be 
Kcalledf  and  a  new  commission  according  to 
the  aaid  amendment  is«ue,  to  bear  date  atter 
tf9  rnidtr  and  ramlutiou  of  the  I2tb.  Coin- 
mv^  imi^  QjTtbe  15th  of  May.    f  ^^r. 


gularity  and  solemnity  of  the  proceeding  dtr- 
lug  the  trial  and  until  jadflrment,  #hieh  1  dt 
not  dispute)  every  imptecbment  may,  Ar  a 
reaaoD  too  obvious  to  be  mentionedt  be  renderei 
ineffectual ;  and  the  judicature  of  the  Lorfci  ia 
all  capital  cases,  nugatory. 

It  was  from  a  iedousy  of  thia  kibfl,  not  aC 
that  juncture  altogether  groandle«,  and  to 
guard  against  every  thing  from  wbeiiee  tht 
necessity  of  an  High  Steward  in  the  caaeoTai 
impeachment  might  be  inferred,  that  the  Cmk- 
mons  proposed,  and  the  Loida  readily  ijpiel 
to  the  amendment  in  the  SlewanPs  ooininisM^ 
which  I  have  already  stated.  And  it  hath.  1 
confiess,  great  weight  with  me,  that  fM 
amendment,  which  waa  at  the  tame  liftM  i- 
rected  in  the  cases  of  the  five  Popish  Mi 
when  commissions  should  pans  for  their  Imh^ 
hath  taken  place  in  every  oommiasion  OfM 
impeachments  for  treaaon  finee  that  lont.* 

And  1  cannot  help  remarking,  that  in  ikt 
case  of  lord  Lovat,  when  neither  the  hmt  rf 
the  times,  nor  the  jealousy  of  partiea  had  my 
share  in  the  proceeding,  the  Hoaae  ordtfeL 
"That  the  commission  for  appointing  a  Lon 
High  Steward  shall  be  in  the  like  form  as  ikl 
for  the  trial  of  the  lord  viscount  Steflhid,si 
entered  in  the  Journal  of  this  Hoose  on  Hh 
30th  of  November,  1680,  except  that  the  mm 
shall  be  in  the  English  language.*'f 

1  will  make  a  short  observation  on  dil 
matter. 

The  order  in  the  ISth  of  May,  i619,  ftr 
varying  the  form  of  the  coromisaion,  wm,h 
appeareth  by  the  Journal,  plainly  made  in  em- 
sequence  of  the  resolution  of  the  12th,  and  w« 
founded  on  it ;  and  consequently  the  constoi^ 
unvarying  practice  with  regard  to  the  Kv 
form,  gocth  in  my  opinion  a  great  way  towirii 
shewing  that  in  the  sense  of  all  socceedisf 
times  that  resolution  was  not  the  result  of  6c- 
tion  or  a  hiameable  jealousy,  but  %vas  fonndsi 
in  sound  reason  and  true  |iolicy. 

Jt  may  be  objected,  that  the  reaolutino  rf 
the  12th  of  3Iav,  1679,  goeth  no  further  fhm 
to  a  proceeding'upon  impeachment. 

Tiie  letter  of  the  resolution,  it  is  admiHst, 
gocth  no  further,  but  this  is  easily  accoasK^ 
for.  A  proceeding  by  impeachment  wu  tkt 
subject  matter  of  the  conference,  and  the  Cob* 


mons  hud  no  pretence  to  mterpose  in  any  slMi^ 
But  what  say  the  Lords?  '*  The  High  Stevsri 
is  but  as  a  speaker  or  chairman  pro  tcmport^f^ 
the  more  orderly  procee<ling  at  the  trials;  iki 
ap|>oiniment  of  him  doth  not  alter  the  natwi 
of  the  Court,  which  still  remaineth  the  Com 
of  the  Peers  in  Parliament.**  From  these  jfttr 
miiies  they  draw  the  conclusion  1  have  mca- 
tioned.     Are  not  these  premises  equally  ti0 


*  See  the  commis8if)n8  in  the  cases  sf  iM 
earl  of  Oxford,  vol.  1ft,  p.  1046,  earl  of  00- 
wentwater  and  others,  vol.  15,  p.  761,  M 
Winton.  vol.  15,  p.  805,  and  kird  Lovali  M 
18,  p.  530.  X 

t  See  the  Proceediim  printed  by  mU  ^ 
the  House  of  Lorda.    (Feb.  4, 17)6.) 


I 


for  Murder^ 
Ibtf  *••#  ^f  %  pr<»ceedLn^  upon  iiHUctmeol  t 

fi  iHf  admitted,  lH«t  in  tbe  pro- 

'ftediii^^  u\Mn  itHhctoaent,  the  Higb  Steward's 
iit])i.i(^ion  liath  tiewv  vkried  from  I  he  antient 
inn  in  *«uch  cases;  the  v%ord**  obj^pctcd  to  by 
e  C  Viuinoun,  **  Ac  pro  to  quod  ofBcium  Se- 
eftchftili   Ani^lti^  (cujuft  prflcsefitia  id  bac  parte 
'^uintur)   ut  uetepimus  jam  vacat^^'  are  sttti 
led.      iiut  i1ji»  proreih  no  more  than  that 
great  teal  bafio^  oo  authority  to  vary  io 
lint  of  form,  hatti  frona  time  to  time  very 
ffOdenily  follaweil  anueot  precedents. 
t   hnve  dready  stated  the  subi^t&nce  of  tbe 
c  'jn  in  a  proceeding  id  the  Court  of  the 

I  vvfiidt     I  wiU^uow  state  the  suhstaooe 

Ipt  Ui4L  III  a  proceeding  in  the  Court  of  the  Peers 
Parliametit.     And  Khali  make  use  of  that  in 
c  f ,,        ■   !  H  earl  of  KiUnarnuck  and  others, 
I''  lU-^l,  and  in  iiuint  of  form  agree- 

lig  v»»tu  hit  iiKini^r  precerfents^ 
TThe  cornmisi^ion,  after  ret  iiiug  that  Witltntn 
I  of  Kilmarnockt  *kc.  Ktands  indicted  before 
ivsiofirrs  of  gJioUieliFery  in  tl»e  county  i 
>f  Kurry,  fiir   high   treaMMi,    in   Jevyinjj    war 
fdnsi  tite  V\n\i ;  and  thiit  IIk?  kint;^  intendeth, 
at  thf  said  VViUiam  earl  of  Kilmamocki  &Cm 
mil  he  hiard,  examined,  etfntenced^  and  ad- 
A^rA  hefure  himself  io  thi$  pi  p^ent  parliament 
lite  itaid  (reason  ;  and  far  that  the  of< 
lifward  of  Gre^t- Britain  (whose  pre^ 
ce  i^  riH^uired  upnn  tlir«t  occasion)  is  now 
i  as  we  are  intunned,  :tppointctli  tliellien 
chanopllor  Steward  of  liruut-nritain,  to 
r,  execute,  and  exercise  (for  this  time)  the 
'  'y\\  all  (lnii^«  due  and  belonging 
Vw.v.  ill  ih^t  helmlf 
.^.vime  ate  thu  ihingi  due  and  be* 
the  office  in  a  case  of  this  kind? 
J  II  the  Court  of  the  High  Steward,  a 

t  !iidicHtiire«     For  the  comtniB»ion  itself 

^  it  that  right  to  resjide  in  a  court  then 

kubnitttini^  before  the  king  and  paiHamenL  Tbe 
jpsrtic':  ^rc  to  be  there  heard,  sentenced,  and 
^  ^     What  &hare  in  the  proceeding  doth 

^1  1  Stewanl  then  take?  By  the  practice 

l^uil  usat;t;  of  the  court  of  the  pecrrs  in  parha* 
l^f-nt,  \\v  givcth  his  TOte  aa  a  member  thereof 
1^-  '  ii'Kt  ii^  the  peers  \  but  ibr  the  sake  of 
t  y  and  order  he  preaideth  during  tiie 

ikii,    uriii   until   judgment,  as   chairman    or 
rr  pro  trmpore.     In  that  respect  therefore 
may  be  properly  enough  »aid,  that  \\\^  pre- 
oeo  i^   reipurcd  during'   the  trial  and  until 
i),Mi\i<ru^  Afitl  ill   m>  other.     Herein  f  see  no 
hetwer  n  the  case  of  an  impeachment 
Jp    i  li  inrlictment. 

t  I  »«>,  during  thr  time  of  the  trial  and  until 
midijiTiiMit,  brrrtusr  tlie  court  hathf  as  I  oh* 
"f  time  to  time,  done  variofis 

ijk  !  \w  fare  t  h  e  a pjioi  n  tmen  t  of 

^  licre  no  Hfjjh  Steward 
j,  and  even  alter  the 

t  purpo«e  cite  a  fctv  canes. 

I  U^uj  w  lUi  tbe  laleit,  because  they  are  the 
,^  and  were  ruled  with  great  ddiberaiioa, 


I 


^^      A.  D.  1760-  [UTO 

and  for  the  moit  part  upon  a  view  of  fwnhitf 

preceiJeuts. 

fit  tl>e  caae  of  the  earl  of  Ri(man>ack  and 
others,  the  Lords,  on  the  24tb  of  June,  174d, 
ordared  thai  a  writ  or  writs  of  Certiorari  be  is* 
sueil  tor  removing  the  indictments  before  th« 
Hous*>,  And  on  the  !26ih  the  wril^  which  la 
made  returnable  before  the  kioj^  io  parliament, 
with  the  return  and  iudictmenis,  was  received 
and  read.  On  tbe  next  day  upon  the  report  of 
the  lords  committees,  iha(  tbej^  bad  been  at- 
tended by  the  two  chief  justices  and  chief 
baron,  and  had  heard  them  touching  the  con- 
Mruction  of  the  act  of  the  7th  and  8ih  of  king 
William  "  fiir  regulating  trials  in  casea  of  high 
treason  and  misprision  of  treason/'  the  Hooset 
upon  reading  the  report,  came  to  several  reao> 
lulions  fuutided  for  tbe  most  part  on  the  con* 
struction  of  that  act.  What  that  construction 
was,  appearelh  from  tbe  Lord  Hiy^b-Steward^ 
address  to  the  prisoners  just  before  their  ar- 
raignment. Having  mentioned  that  act  as  one 
happy  coiise<)uence  of  the  Ilevolution,  he  add* 
elh,  '*  Howerer  injuriously  that  Revolution 
hath  been  traduced,  whatever  atiemnls  have 
been  made  tn  subvert  thts  happy  establishment 
fouitdeil  on  it,  your  lordfihips  will  now  have  the 
bemfil  of !  ha  J  law  in  its  full  extent.' * 

I  need  not  after  this  mention  any  other  ju* 
dicial  acts  done  by  the  House  in  this  case  be- 
fore  thenppoiniment  of  the  High  Stew  :ird,  many 
there  are.  For  the  putting  a  construction 
upon  an  act  relative  to  tlipconduct  of  the  court, 
and  the  nglil  of  the  subject  at  the  trial  and  la 
tbe  proceedings  preparatory  to  it ;  and  this  in  a 
case  entirely  new^  and  upon  a  point,  to  say  no 
more  in  this  place,  not  extreiuely  clear;  waa 
undoubtedly  an  exercise  of  authority  proper 
only  for  a  court  having  full  cognizance  of  the 
cause. 

I  will  not  minutely  enumerate  the  several 
orders  raade  preparatory  to  tbe  trial  of  lord 
Lovat,  and  in  the  several  ca^es  I  shall  have 
occasion  to  mention,  touching  the  time  and 
place  of  the  trial,  the  allowance  or  non- allow- 
ance of  counsel,  and  other  matters  of  the  like 
kind,  all  plainly  iudjcial,  because  the  like  or- 
ders occur  in  all  the  envies  where  a  journal  of 
the  pn^i  ^teps  hath  been  publi^ihifd  bv 

order « •  i  W  ith  regard  to  lord  Luvat*a 

cnt      *  k  tue  order  dirt^c ting  the  form  of 

til  I (^w a rd*s  commission  which  1  have 

aliT.ii'jr  i>i»vu  notice  of,  is  not  very  consiAtent 
with  the  idea  of  a  court  whose  powers  can  bo 
supposed  to  depend  at  aoy  point  of  time  upon 
tbe  extiteooe  or  diatolation  of  that  commlaaion. 

Iti  tbe  case  of  the  carl  of  Ilcrwentwater  and 
the  other  tonU  impeached  at  the  same  time, 
the  llouMe  received  and  recorded  the  coiifeasion 
of  those  of  them  who  pleaded  guilty  long  be- 
fore the  teste  of  »he  High  Steward's  commit^ 
sioo ;  which  iitsued  merely  for  the  solemnity 
of  giving  jiidg(]>eiDt  against  tbem  apoa  Uieir 
conviction. 

This  appeareth  by  the  commlssioo  itsdf 
(Seethe  prooeediogt  in  vol,  15,  p.  761).  It  re- 
citetb,  that  the  «ai-l   of   Derwditwater  aud 


971J 


95  GEORGE  II. 


[978 


•then  '  eonin  nobis  in  pnneDti  pailUmcnto' 
bail  be«n  impeacfaed  bj  the  Commoos  for  high 
tmsoo,  aod  had  *  coram  nobis  in  prftsenti  par- 

*  liamento'  pleaded  guSty  to  that  impeachment ; 
snd  thai  the  king,  inteDding  that  the  Mid  earl 
of  Derwentwater  and  others,  ■  de  et  pro  pro-  ' 

*  ditione  node  ipsi  at  prafertar  impetit*  accusat' 

*  et  convict'  exlstuot  coram  nobis  in  pnesenti 
^  pariiamento  fecondam  legem  et  coosoetodi- 

*  nem  hojns  regni  noetri  Majgfns  Britannic, 

*  aadientor.aententientar,  et  adjodicentnry'  con- 
stitotKh  the  then  lord  chancellor  High  Steward 
(Aoc  vice)  to  do  and  ezeente  all  things  which  to 
the  office  of  High  Steward  in  thai  behalf  do  be- 


TlMI 


I  receif  ing  and  recording  the  confewion 
9f  the  prisoners,  which  amoonted  to  a  oonric- 
tion,  an  that  nothing  remained  but  proceeding 
to  ja4gmettt,  was  certainly  an  ezerdse  of  jo- 
diaal  ulbority,  which  no  asKmbiy,  how  great 
soever,  not  having  fall  cognizance  of  the  cause, 
conid  ^Kfdse. 

In  the  case  of  lord  Salisbnry,  [fee  toL  12, 
p.  18S3]  who  had  been  impeached  by  the 
Commons  for  high-treason,  the  L4Nds  npon  his 
Petkioa  allowed  him  the  benefit  of  the  act  of 
general  pvdon  pamed  in  the  second  year  of 
rTilliam  and  Mary,  so  ftr  as  to  discharge  him 
from  hb  imprisonment,  upon  a  coostraction 
tbe^  pat  upon  that  act,  no  High  Steward  ever 
haniig  been  appointed  in  that  case. 

On  the  2d  of  Octoksr,  1690,  apon  reading 
the  earPs  PetTtion,  setting  forth  that  he  had 
been  a  prisoner  for  a  year  and  nine  months  in 
the  Tower,  notwithsiaibding  the  late  act  of  free 
and  general  pardon,  and  praying  to  be  dis- 
charged ;  the  fiOrds  ordered  the  Judges  to  at- 
tend on  the  Monday  following  to  gire  their 
opinions,  whether  iliesaid  carl  be  pardonvd  by 
the  act.  On  the  6th.  the  Judtres  ddiTerevI 
their  opinioDf,  That  if  h\%  etftnce  was  com- 
mitted before  the  Iftb  of  February,  168o.  and 
not  in  Ireland,  or  beyond  the  seas,  he  is  par- 
doned. Whereupon' it  was  ordered,  thai  he  be 
admitted  to  bail ;  and  the  next  day  he  and  his 
safeties  entered  into  a  recognizance  nf  bail, 
himself  in  10,00C!.  aod  two  sureties  in  o.OCK?/. 
each;  and  on  the  30th  he  and  his  sureties 
were,  after  a  long  debate,  discharged  from  their 
recognizance. 

It  will  not  be  material  to  enquire,  whether 
the  House  did  right  in  dischargiog  the  earl 
without  giving  the  Commons  an  opportunity 
of  being  heard.  Since  in  fact,  they  claimed 
and  exercised  a  right  of  judicature  witbont  au 
High  Ste«»~ard,  which  is  the  only  use  I  make  of 
this  case. 

They  did  the  same  in  the  case  of  the  earl  of 
Camwath,  the  lords  Widdrington  and  Nairn, 
long  after  the  High  8tewani*s  oommisnon 
diasolrcd. 

These  lords  had  judgment  passed  on  them 
at  the  same  time  that  judgment  was  given 
against  the  lords  Derwentwater,  Nithsdale,  and 
Kenmore,  [rol.  16,  p.  762  of  this  Collection,] 
and  judgment  being  given,  the  High  Steward 
wuMdiaielj  broke  his  staff,  and  declared  the 


Triml  of  Earl  Ferrers, 

commission  disnircd.  Tbej  coubaocd  pri- 
■oners  in  the  Tower  under  reprieves  til  the 
passing  the  act  of  general  pnrdoa  in  the  3d  if 
Ling  George  the  F'lnL, 

On  the  91st  of  November,  1717,  the  Hooae 
being  informed  that  these  lords  bad  severally 
entmd  into  recognizances  before  one  of  the 
judges  of  the  court  of  Kin|;'s- bench  for  ibcir 
appearance  in  the  Hoose  this  senion  of  parlii- 
ment,  and  that  the  brds  Carawath  and  Wid- 
drington  were  attending  aeoocdinglj,  and  ihrt 
the  lord  Nairn  was  01  at  Bath,  and  oonid  wH 
then  attend,  the  lords  Camwath  and  Vlli- 
drington  were  called  in  ;  and  sevcraBj  al  the 
bar  prayed  that  their  appearance  night  beis- 
cordcd,  and  likewiae  pnyed  the  benefit  of  ikf 
act  (3  Geo.  1,  e.  19,)  for  his  majesty's  gCMnI 
and  free  pardion. 

Whereupon  the  Hoose  ordered  thU  Ihdr 
appearance  be  recorded ;  and  that  they  tUed 
again  to-momw  in  order  to  plead  th«  jpsidn. 
And  the  recognizance  of  thi:  lord  Navn  «■ 
respited  till  that  day  fortnighL 

On  the  morrow  the  lorils  Camwath  mi 
Widdringtoo  then  attending,  were  called  ii; 
and  the  lord  chancellor  acquainted  them  »* 
verally  that  it  appeared  bv  the  records  of  ik 
House,  that  they  sereralTv  stood  attaiold  if 
high- treason,  amJ  asked  them  severally  vha 
they  had  to  say  why  they  shoold,  not  be  R- 
manded  to  the  Tower  of  Ijondon. 

Thereupon  they  severally  upon  their  knca 
prayed  the  benefit  of  the  act,  and  that  thej 
might  have  their  lives  and  liberty  pnnsnt 
therennio. 

And  the  Attorney -General,  who  then  «- 
tended  for  that  purpose,  declaring  that  beM 
no  objection  on  his  majesty's  behalf  to  vha 
was  prayed,  conceiving  that  those  Iw^.*' 
having  madie  any  escape  since  their  ooovidiMli 
were  iotitled  to  the  brnefit  of  the  act,  (seeiKt 
45,  of  the  3d  Geo.  1.)  the  House  aAer  ivadnr 
the  clause  in  the  act  relating  to  that  mSMTi 
airreed  that  they  should  be  aflowed  the  htaiA 
of  the  |iardon  as  to  their  lives  and  liberties,  b' 
dischar;;ed  their  recosroizaiices ;  aod  fi» 
them  leave  to  depart  without  further  day  gi*** 
for  iheir  appearance. 

On  the  6th  of  December  fullowiog,  the  ike 
proceeiliogs  were  had,  and  the  like  orders oi'^ 
10  tbe  case  of  lord  Nairn. 

I  observe  that  the  lord  chancellor  did  Hi 
ask  these  lords,  what  they  had  to  say,  wby  cs^ 
cutinn  should  not  be  awarded.  There  wss,  il 
is  probable,  some  little  delicacy  as  to  ikil 
point.  But  since  the  alhiwaooe  of  the  bes^ 
of  the  act  as  to  life  and  liberty,  which  wuv 
that  was  prayed,  was  an  eflectual  bar  to  i0f 
futore  imprisonment  on  that  account,  and  aii> 
to  execution,  and  might  hare  been  pltadrd  i> 
such  in  any  court  wlwtsoever ;  the  whole  pi** 
ceeding  m'ost  be  admitted  to  hare  been  is  > 
court  having  complete  jurisdiction  in  tbeoA 
notwithstanduig  the  High  Steward's  commit 
sion  had  been  long  disM>lved.  WhicfaisaBAi 
Die  I  intended  to  make  of  this  case. 

I  will  Mt  ircapttnlatp;  the  cases  I  b*** 


Jot  Murder* 

le  coi>c(ua)otis  drawn  from  them, 
[  intcf  A  very  uarro^t  eoDi|ia!i^.  I 
i]«  that  il  v¥otilil  nouuii  extremely 
\  thm  Ik  court  of  crimintil  juriarfic- 
A  in  i  in  memorial  uairigo,  and  lidd  m 
r  i»w  before  thekinjf  liituwit,  rjin 
I  whatever  be  uuil^r  an  utter  inca> 
iroceK^tiing'  to  trial  and  judj^ment 
mdemnation  or  acquittal,  the  ulti* 
bt  of  erery  criniuiul  |irnocedinsf» 
rtaiu  ttippleoQetiUl  poirers  derired 
ir*rn, 

Bei,  u'ith  llie  obaerratiooi  1  have 
>m,  I  hope.  Ktifficjeoily  warrant  the 
theJi  '_  n  that  piirt  of  the  se- 

en I  nf  the  iaie  carl  Fer- 

i  I  hiivc  UMiaJy  mentioned.  And 
was  advanced  hy  the  lor*l  chief 
urg'nuienton  ihiitniit"*t(an,  '^That 
iffice  of  High  S  iould  hap- 

tminc  belori'  *  >  n  *Um^  ac- 
le  judgm«^iii,  yet  the  court  of  the 
Hiaaient,  where  that  judgment  wks 
Hd  subsist  for  all  ihe  purposes  of 
bg  the  sitttni^  of  the  parliament/' 
beiiUy  that  in  the  case  supposed  by 
b,  that  Court  might  appoint  a  ne^ 
Execution.* 

or  TItK  BXKCOTIOH  OF  THE  LATE 

ICE  Earl  FcRJiEna,  Viscot^KT  Tam 
ikKD  or  uiH  LofLosHiF's  BsaartouA, 
US  TtM£  or  uia  BErwa  DELrvEHEn 

HE    COSTOBY   OF  THE    HuERirFS    OF 

» jiM>  S^troDLESEX,  ujrriL  the  Time 
Execution,  (Bt  the  Autuorjtv 
SitEfUfim.) 

[y  the  second  day  of  May  1760,  the 
UondoTi  and  Mi(hlle«cx  received  the 
frit  under  the  Great  Seal  of  Great 
ttte  £x«fCution  of  Laurence  Earl 
couQt  I'amwortb,  on  lb«  Moaday 

the  lecond,  by  the  ^rnce  of  God, 
Irilain,  France  and   Ireland,  king, 
the  faithf  and  so  fnrtb,  to  the  8be 
udon    and    8heritf  of   Mi<hllcse-Vt 

Whereas  Laurence  earl  Ferrers, 
^IQ worthy    hulh  been    indicted    of 

tunrder  by  him  done  and  com 
Mcb  said  inchctmcnt  hath  been  cer* 

tis  ioour  nrcwent  parliament,  and 
Urcnre  earl  FrrrtTPi,  viseotint  Tain- 


kid  the  day  anjKiinled  by  the  jodg- 
H:  iJieeutiou  lapse  before  such  exe- 
^^  a  new  time  may  l*e  ajipointed  (in 
|>rer)  either  by  the  High  Court  uf 
I  befurtf  »lHch  such  peer  shall  have 
M,  or  by  B.  R*,  the  piirtijini^m 
ling  ;  the  rtcord  ot  nitaM 
bovedintoB.  R."  Kasl  r  .  . 
V.  5»a.  136. 


worth,  hath  been  thereupon  arraigned,  and 
npon  such  arraignment  balh  [deaded  Not 
Guilty  :  And  the  said  Laurence  earl  Ferrvm, 
vi»couot  Tamworthf  hath  before  us  in  our  said 
partiamcat  been  tried,  and  in  due  form  of  Imp 
contricted  thereof:  and  whereasjudgmeni  hath 
been  «ivt>n  in  onr  said  parliament,  That  Iha 
said  Laurence  earl  Ferrers,  visconnt  Tain- 
ivortb,  Hliall  l>e  hanged  by  the  oeck  till  he  it 
dead,  and  that  his  l»<>dy  he  dissected  and  anato* 
mised,  the  execution  of  ^vhich  judgment  yet 
remains  to  be  done :  we  rectuirCf  and  by  th«!ao 
prei^nts  atricdy  command  you,  that  upon 
Monday  the  flUh  day  of  May  instant,  between 
the  hours  uf  tuii«  in  tlie  moroiug  and  one  in 
the  afteruomi  of  the  aame  day,  him  the  said 
Laurence  carl  Ferrers,  viscount  Tamworth, 
without  the  gate  of  oar  Towit  of  London,  (to 
you  then  and  there  to  be  delivered,  as  by  ano* 
iher  %vrit  to  the  lieutenant  of  our  Tower  of 
London,  or  to  his  deputy  directed,  we  have 
commanderl)  into  your  custody  yon  then  anil 
there  receive;  and  him  in  your  custody  m 
l)eing,  you  forth^vith  conrey  to  Ihe  accnstome4 
place  of  execuiioii  at  Tyburn,  and  that  yoii 
ilo  CAUJ^c  execution  be  dnne  upon  the  said 
Laurence  earl  Ferrers,  vtscouni  Tamworth,  id 
your  custody  ^o  being,  in  all  things  according 
to  the  s&jd  jiid*/menl.  Anil  this  vou  are  by 
no  mean«  to  omit  at  yuur  peiil.  lVitn>ei^f  our* 
self  at  We^tmiobter  the  second  day  of  May,  itt 
the  thirty-third  year  of  our  reigu. 

••  YoEKE  and  Yoeke.*' 

Upon  the  receipt  of  this  Writ,  the  Sberiffa 
immediaf  ety  issueii  their  orders  for  making  all 
the  n«^cesKaiy  preparations  far  the  etecuiion, 
and  for  the  performance  of  it  in  a  manner  suit* 
able  to  bis  lord<«hip  s  rank. 

When  the  foregoing  precept  was  delivered 
in  the  Sheriffs,  they  had  notice  of  the  following 
Writ  beiug  sent  to  the  lieutenant  of  the  Tower 
of  London  or  his  deputy,  for  the  delivery  of  bit 
lordship  into  their  custody  : 

**  George  the  second,  by  the  grace  of  God 
of  Great- Britain,  France  and  Ireland,  king, 
itefeuder  of  the  faiili,  auH  so  forth,  To  the 
Lieutenant  of  our  Tower  of  London  or  his  de- 
puty, greeting.  Whereas  Laurence  earl  Fer- 
rers, viscount  Tamworth,  baih  been  indicted  of 
felony  and  muixler  by  him  done  and  com* 
mitted,  which  said  indictment  bath  been  cerr 
tified  liefore  un  iu  our  pre^nt  parliament ;  ana 
the  said  Laurence  earl  Ferren,  viscminl  Tam- 
worth, hath  bren  thereupon  arraigned,  and 
upon  such  arraignment  bath  pleaded  Not 
Guilty  ;  and  theren(M>u  the  said  Laurence  eai! 
Ferrem,  viscount  Tamworth,  haih  befoi^ 
our  said  parliament  been  tried,  and  in  dii 
of  law  convicted  thereof,  and  for  the  \i*ui.  i^ 
adjndged  to  ^suffer  di-aili,  the  execution  of 
which  judgment  yet  remains  to  be  done  ^  we 
rctjoire,  and  by  ihcsf  presents  strictly  coiu* 
nim;cl  vou,  That  upon  lVlonit.iv  thellfVh  day  of 
>iani,  between  tl»  1  nine  in  the 

;;  and  one  in  Iht'     in  of  theamma 
day,  liifa  the  said  Laurro^t  c*ari  Ferren,  vis* 


38  GEORGE  U. 

cauot  Tmnwnritii,  unio  the  usual  f^sce  ^Uliout 
lliegvie  of  the  said  Tower  you  brinj^f  awi  him 
to  the  Sheriffs  of  London  ant]  IVlidcllesex  then 
ttid  there  delir^r  ;  which  saitJ  ^hcrifffl,  Uy  an- 
4kber  writ  to  tliem  directed,  we  have  com- 
VitodeU  then  onil  there  to  receive  U»e  said 
I^urence  earl  Ferrera,  viscount  Tamwnrth, 
that  execution  of  the  afbrebdid  judguieot  luay 
be  done  io  manner  and  form  as  to  tlie  said 
Sheriff  of  London  and  Middlesex  we  by  our 
«»id  other  Writ  hare  commanded ;  and  this 
you  are  by  no  meatiii  to  omit  at  your  (leril. 
Witness  ciur^lf  at  Westmioster  ihe  second  day 
«f  May,  in  the  thtrty-lhird  year  u*  our  vet^ix, 
*'  YuBKC  and  Yowfct.*' 

Id  obedience  to  these  commands,  the  She- 
vifls,  on  Monday  the  5th  day  of  May,  beings 
attended  by  their  uuder'Sheiift's,  and  other 
proper  officers,  went  to  the  outward  ^ale  of 
the  Tower  of  Looiloo,  and  at  nine  o'tlock  in 
Ibe  murninir  sent  no  lice  to  the  Lieiitt;aaut  I  hat 
tliev  were  there,  ready  to  receive  the  body 
of  Laurence  earl  Ferrers^  viseount  Taniworili, 
pursuant  to  the  king's  writ  in  that  behalf. 

His  lordship  beinr;  inCormed  of  it,  stnt  a 
Message  to  the  fiheriffs,  requeatinjBT  their  per- 
ll&iǤion  that  he  might  f^o  in  his  own  landau, 
ivhich  was  ivaitin^^  for  him  willjin  the  Titwer, 
ioate^d  of  the  mouraing--coach  which  had  beeo 
provided  hj  his  friends';  which  request  btnig 
srranted^  htslurdsbip,  attended  by  Ihe  refrrend 
Mr,  Humjjhriefi,  tlie  chaplain  of  the  Tower, 
entered  inio  his  landau,  drawn  by  aix  liorses, 
i^nd  was  comlucted  io  it,  by  the  ofiicei-s  of 
the  Tower,  to  the  outward  ^ate,  &m\  there 
delivered  into  the  custody  ot  the  sherids,  upon 
their  g^iving  the  following:  receipt : 

**  J^mtr-Ritl,  5tk  Ma\f,  1T60. 
**  Received  then  of  Charles  ttninsfurd,  esij. 

deputy  4  ieu  ten  uut  of  the  Ttiwer  of  Loudon,  the 
body  of  the  within -named  Lnureoce  earl  Fer- 
rers»  viscount  Tam worth,  delivered  to  us  in 
obedience  of  the  kmg^i  writ,  of  which  the 
within  ii  a  true  copy. — ti£0.  EiiRrN**Tc>N, 
Paul  Vazll4XT,  Sheriffs  of  Loculoo  and  She- 
riff of  ikliddlesex/' 

Mr.  Sheriff  Vaillant  accompanied  his  lord- 
lUip  in  the  landau  from  the  Tower  gate  to  tJje 
place  of  execution ;  and,  upon  li^a  entrance 
into  it,  addreaaing^  him&eif  to  his  lordship,  he 
luld  him.  That  it  ^ave  him  thf  hi^hi2<t  can- 
ceru  to  wait  upon  him  upon  m  mt'luni.dioly  an 
occasioa,  but  that  he  would  do  every  thing  in 
bis  |iO»er  to  render  lii^  siiuaiion  as  easy  as 
possible;  and  hojied  thai,  whatever  he  did,  bit 
lordship  would  unpute  to  the  necessary  di^i- 
^harge  of  his  duty.^-To  which  bis  tordsbip 
answered,  Sir,  I  am  very  much  obliged  to 
you,  I  take  it  ^try  kindly  thnt  you  arc  pleased 
to  a^companv  me. — Uis  lordship  being  dressed 
in  a  auii  of  light  clothes,  eaibroalered  wiih  ail 
vcr,  said,  Yuu  may,  per  baps.  Sir,  think  it 
ttraijige  to  tee  me  in  this  dresa,  but  i  have  my 
j^aritcjjJar  repsoo^  ior  it. 


Trud  of  Earl  Ferrerif 

The  civil  aud  military  poweci 
ilieritfs  from  tbence  to  the  place  vf 
and  the  proces^ioo  waa  a«  follows : 
First,  a  very  larjfe  body  nf  the 
for  the  county  of  Midd!:  ^\ 

bably  that  had  ever  be*,  m    ._    u;^ 
upon  any  occaxiou),  pn£ced€4   hj 
high- constables. 

Then  a  parly  of  lAorie-grtJUttJier% 
party  of  fool ; 

Then  Mr.  Sheriff  ErrijigtoQ  to  bis  .  . 
accompanied  themo  by  bQ  uatler*abcriC 
Jaclison ; 

Then  followed  the  lajiUatJ,  escoftcdl^ 
other  parties  of  horse-gnenatjtera  and  foot; 
Thi^n  Mr,  Sherlif  Vaillant's  chariot^  in  m\ 
was  his  undcr-shonjf  Mr.  NicoU  ; 
Then  a  mourning- coacU  and  aix  ; 
And,  lastly,  a  hearse  and  sik,  whicb 
lidfd    for    the   conveyance    of    im   \o\ 
coritse  from  the  place  of  e^ccuiioD  to  ^ui 
halL 

The  procession  was  condiicUil  sritb  H^ 
most  solemnity  ;   but  moved  so  vf>ry  %ksm^ 
it  did  nnt  reHcb  the  place  of   exeeatiot 
quarter  b*(bre  twelve,  so  thai  bis  lor«i 
two  hours  and  three   quarters  in  iba 
during  the  whole  of  which  litrie  be  a{ 
be  peritH:tly  easy  and  compo&cd,  i 
cent  depoiimt-nt  seemed  gr^^atly  to  ajTcd 
mmds  id  all  that  brheld   hitti;  ii 
altliuu^h    his  lordship    thus    11.^1.^.1  t| 
many  hundred  thousand  sfveci 
soectful  was  the  behaviour  ot    , 
that  not   the    least   affVoui    ar    ti 
offered  to  him  by  any  one  ;  but,  00 
trary,   manv  persons  saluted    btcn 
praiers  for  his  salvation,  , 

His  lordship  asked  the  shmfl\  If  bf 
ever  seen  so  ^reat  a  coBoourse  o#'  |MB|plib'| 
fore?    and   upon  his  aos..  ii:it   be  U 

not  ^  I  suppose,  said  his  I  i  t»,  h^€m 

they  never  saw  a  lord  hai7g<:u  (.n*toi«.  Heal 
that  he  had  wrote  to  the  kin^,  lo  h^  ihilll 
might  suffer  where  his  aoceist^nr  Ibe  saiflj 
Essex  hud  suffered  ;  ajid  tb.<t  Im*  vras  ii  #1 
greater  ho p*?-?  of  obtaining  that  fav«af,ilk 
had  tiKf  honour  of  ^uurtenug  part  of  tbcM^ 
arms«  and  of  being  nllted  to  hi^  malna)  lU 
(hat  he  thouj^ht  it  \\^  hard  tba 

the  pUre  ap|Kiintcd  for  the  ex c  

mon    ietons.      But  wbat«ver    bis    I 
ihuiighlj  were  upon  that  acCQtuil,  ib( 
si  derations  will  for  ever  tbraw  an   ad< 
lustre  00  his  majesty 'b  impartinbiy  and 

Mr.  Uumphries  iheihaplaiij      ~! 
had  not  alU'iided  his  Ujulshi^.  ti 
took  occasiuu  to  oli^crve,  il.   f 
naturally  be  very  inquisiii 
religion    hit»    bn'  '   ;•     - 
him,  It  he  chi>  Uat| 

subject?     To    la..  *t^^T«l,| 

ThAt  he  did  not  thiiiL  taMi  ] 

to  the  world  for  hisstu  ^.,j;l 

that  be  had  atwbys  beiievt  > 
Qod,  the  maker  of  all  ihif  ^  ^ 
bia  Botiooa  were,  be-  ba<i   ttctcr  pto 


fuY  Muruer* 

icm,  or  vndearoureil  to  f^ain  tny  person i  ofer 
\  hto  penmaNOD  \  tliat  all  couutncv  and  uations 
id  •>  fbftn  of  reliq^ioii  by  nhirli  the  peo|)le 
'cre  f^verneil,  and  that  whoever  disiurheil 
lem  in  it,  Ik;  looked  upon  him  av  an  eripmy  to 
pcitfly  ;  but  th»t,  if  he  hini^elf  wait  wroi}i^  in 
Iw  way  of  ihinkinir.  he  wai  tery  sorry  tor  it. 
^ttl  b«  very  much  blamed  my  lord  Baliog^* 
l^ft^  for  prrmuiini^  \\\^  «^ntim4*nts  on  relt^imi 
^0|»ub)i«lied  to  the  irorUL  That  the  iiiniiy 
^0f«  and  disputes  ^vhich  happen  about  rehg^too, 
jlife  almost  turned  morality  out  of  dcKir«. 
rhat  he  could  neter  believe* nhat  some  sec* 
WFum  leacbt  that  faitb  alone  will  save  mail' 
jiod  ;  «<>  that  if  a  imm,  jtitiC  before  he  dte«. 
koidd  Eay  ofdy^I  believe,  thnt  that  alone  \n(l 
'  im  ;  •*  8he\v  ma  thy  faith." — Hei^  hi* 
p  stopped  ;  btit  by  which  quoiation  lie 
meant,  accordini;  to  the  holy  wrtit?r, 
mes,  chap,  ii,  v.  18.)  who«e  woVdi  they 
bat  failh  wiihoul  wnrks  is  a  dead  faith. 
II in i;  the  uiifuriuuate  and  mnch-io-be 
Mr.  Johnson,  whose  death  4>cch 
the  trouble  of  this  day,  his  lordsliip  de- 
I,  Th^l  he  was  und«r  parlieular  circum- 
that  he  ttad  nnet  with  so  many  crosses 
xatioos  he  scarce  knew  what  he  did  ; 
vnleiimly  protesteil,  that  he  had  not 
malice  tuwards  him, 

oeta  of  ihe  procession  made  this 

T  so  very  tedious  to  his  lordship, 

e%prefl9«il  bis  desire  itf  bein^  got 

I  ci'  it,  ffsiying,  that  the  appttraiiis  of 

and  the  passing  through  surh  ciowds  of 

ere  ren  limn*  worne  than  deiih  itself; 

ilie  sherifT's  takinij^  notice  to  \\\%  lord- 

lie  was  |rlad  to fice  that  be  supjKirtid 

^ )  well,  hifi  lordship  rqdii'd,  I   ihaiik 

\  I  hope  I  !>ih(itl  conijone  m)  U}  the  \^%. 

h\%  lordship  had  i^ot  to  that  part  ot 

"     li   IS  near  Jirwry-lane,  be  said, 

and  thi»nld  be  gUd  of  a  ^lans 

uiKi  ^viitor;    but  upon  the  aberitTs  re- 

ituif  In  him,  ili^it  a  stop  for  that  pur- 

utd   neeejisaritv  drAW  a  greater  crowd 

biiDf   which    miuht  possibly  disturb  and 

iniod^  him,  yei  if  hi*i  lordftbip  still  desiucd 

Kboulil  be   done ;    be   most  readily  an- 

'  — That's  true,  I  iay  no  more,  |«fi  us  by 

HI  stop. 

they  approached  near  the  place  of 

:too,    \i\%   lordnhip  told  the  sheriff,  Thai 

a   person  waiting;  in  a  coach  near 

for  whom   he  bad  a  very  sincere  regard, 

uboui  be  sbould  l»e  glad  to  tnke  his 

r       f  ■  died;  to  which  the  <iherif}*an* 

!    hift  lordship  inslsteil  U|ion  it,  it 

but  thai  he  wished  ht»  lordship, 

n  Miike,   woidil  decline  it,    le^t  the 

prrson,  for  whom  he  bad  such  a  re- 

ild  unman  hrtn,  and  disarm  him  of 

In   he   po^te^hetj. — To    which     Imn 

Hbout  the  least  hesitation,  rrpbrd^ 

tbink  I  arn  wrrtntr,    f   <«ubmit ;    and 

lif  ;  .  Ihttlif  he 

^  I-  .  ^on,  or  any 

wifuUl  taUblutJy  do  it;  bii  lonl* 


A,D,  1760. 


[978 


ship  thereupon  delivered  tothe  sheriff  a  pocket- 
book,  in  which  tvan  a  bank-note,  and  a  rinff, 
ond  a  purse  with  some  (fojneas,  in  onler  to  f»e 
delivered  to  that  pci-son,  w  bich  was  done  lo* 
cordint^ly, 

The  landau  lieing  now  advanced  to  the  place 
of  executtOD^  hta  lonlshtp  alighted  from  it,  and 
»««ceodeil  upon  the  vcaffold,  which  was  ctirered 
with  black  bnize,  with  the  same  compoinre 
and  fortitude  of  nund  be  had  enjoyed  from  the 
time  he  lefi  the  Tower ;  %vbere,  after  a  short 
8iay»  Mr.  Humphries  asked  his  |onlabi|i,  if  he 
rho«e  to  say  pravers  ?  which  he  deolined  ;  but 
tifion  his  asking  niiii,  If  he  did  not  choose  to  join 
with  him  in  the  Lonrs  Prayer  ^  be  readily  an» 
swprtd,  He  would,  for  he  always  thought  ti  ft 
very  fine  prayer ;  upon  which  they  knelt  down 
together  upon  two  cushions,  covered  with 
black  baize,  and  his  lordship  with  au  audible 
voice  very  devoutly  repeated  the  Lord*«  Prayet, 
and  afterwanls,  with  icTtat  energy,  the  follow- 
ing ejeculatiou,  O  God^  forgive  roe  all  mf 
erron*^ — pardon  all  my  sins. 

Uis  lordship  then  rising,  took  his  leave  of 
the  bheriffs  and  the  obaplain  ;  and  after  thank* 
ing  them  for  their  many  civilities,  be  presented 
bis  watch  to  Mr.  SbentfVaillantf  which  liede* 
sired  his  acceptance  of;  and  aignitied  his 
desire,  That  bis  liody  might  be  buried  at  Bra- 
den  or  Stanton,  in  Lieiceslentbire. 

His  lordship  then  called  for  the  execnitoner, 
who  iuuncdiately  came  to  him,  and  a>»ked  him 
forj^riveness  ;  upon  which  his  lordship  said> 
\  freely  fori^if  e  you,  as  I  do  all  mankind,  and 
hope  myselt  to  li  torgiveo. — He  then  intended 
to  tf ive  the  exctrutioner  five  guineas,  but,  by 
mt<itnke,  giving  it  into  the  hands  of  the  execu- 
ttoiier's  aiiiiisiaut,  an  unseasonable  dispute  en- 
sued belwetii  those  unthinking  wretches,  which 
>lr.  Sheriff  Xaillant  instantly  silenced. 

The  executioner  thro  proceeded  to  do  his 
duty,  to  which  bis  lordship,  with  great  resigTi»- 
lion^  submitted, — Hrs  neckcloth  being  taken 
»tf,  a  white  cap,  which  liislordMliip  bad  brought 
iti  bis  pocket,  j^'ing  put  upon  his  head,  his 
arms  secured  by  a  black  sasb  from  incooimod- 
ing  hiniself,  and  the  cord  put  round  his  neck, 
he  lukanced  by  three  step^upon  an  elevation  in 
the  Uiiddle  ol  i be  scaffold,  where  part  of  the 
floor  bail  bi^en  ruised  about  eighteen  inches 
higher  than  the  rest ;  and  standing  inider  Ihe 
cro^s-beam  which  went  over  it,  covered  with 
blark  baixe,  be  asked  the  rxecutioner,  Am  I 
right  T— Then  the  cap  wasilrawn  over  his  face  : 
and  then,  upon  a  signal  given  by  the  Nberifl* 
(for  his  lordship,  upon  being  before  asked,  dc* 
clined  to  give  one  hiruaetf)  that  part  upon 
which  he  stood,  instsutly  sunk  down  from  l»e^ 
ricttlh  his  feet,  and  left  him  entirely  suspended; 
but  not  having  sunk  down  so  low  as  was  de- 
signed, it  wa»i  imm<.'difltrlv  pressed  down,  ind 
levelled  with  the  i^st  of  the  6oor. 

For  a  ft  w  aeeooda  his  lordship  mtds  lonii 
i9irii(fgle8  agaioii  the  etiickaef  deaih,  bot  wtf 
soon  eased  nf  tli  pain  by  tlie  premireol'  ib« 
execuiiooer. 

From  tlitt  ttfueof  hie  lordtllip'a  tfoendifv^ 
3R 


»79J 


S3  GBORGE  II. 


Trial  of  Earl  Ferrert. 


[960 


upoo  the  icaffold,  until  bis  execation,  was  about 
ewbt  minutefl ;  during  which  his  couotenance 
did  aot  cbaD(^,  uor  his  toogae  faulter : — ^The 
prospect  of  death  did  not  at  all  shake  the  com- 
posure of  his  mind. 

Whatever  were  his  lordship's  failing;!,  his  be- 
haviour in  these  his  last  moments,  which 
created  a  most  awful  and  respectful  silence 
amidst  the  numberless  spectators,  cannot  but 
make  a  aenaiUe  impression  upon  every  bo- 
mane  breast 

The  accustomed  time  of  one  hour  being  past, 
the  coffin  was  raised  up,  with  the  greater  de- 
cency to  nceive  the  body,  and  being  deposited 
in  the  hearse,  was  conveyed  by  the  sheriff, 
with  the  same  procession,  to  Surgeons-Hall,* 
lo  undergo  the  remainder  of  the  sentence  (viz. 
diiiectwn). — Which  being  done,  the  body  was 
on  Thoraday  evening,  the  8th  of  Biay,  deli- 
Tertd  to  hia  tirienda  for  interment. 

He  was  privately  interred  at  St.  Panoras 
near  London,  in  a  gra?e  dug  13  or  14  feel  deep, 
under  the  belfry. 


It  appears  by  the  Lords'  Journal,  that  on 
May  19,  1760,  Washington  earl  Ferrers  first 
sat  in  the  House  aAer  the  death  of  his  brother 
Lawrence.  Concerning  the  operation  of  at< 
tainders  upon  peerages,  a  profusion  of  learning 
has  been  collected  and  applied  by  Mr.  Har- 
grave  in  his  very  able  *  Opinion  and  Argument,' 
in  the  Staflfbrd  Barony  Case.  (See  vol.  7,  p. 
1571.) 

Mr.  Cruise,  in  his  "  Treatise  on  the  Origin 
and  Nature  of  Digniiies,  or  Titles  of  Honour, 
to."  eh.  4,  §  66,  et  teq,  (see  also  his  Digest  of 
the  Laws  of  England,  respecting  real  property, 
title  26,)  has  succinctly  staled  several  runda- 
mental  points  of  law  upon  the  same  branch  of 
the  effects  of  attainder  as  follows : 

"  111  dignities  or  titles  of  honour,  whether 
held  in  fee  simple,  fee  tail,  or  for  life,  are  for- 


*  The  statute  made  in  the  25th  year  of  his 
late  majesty's  reign  for  preventing  the  crime 
of  murder,  enacts,  **  That  the  bo<Ur  of  every 
person  convicted  of  murder  shttll,  if  such 
conviction  and  execution  shall  be  in  the 
county  of  Middlesex,  or  within  the  city  of 
liondon,  or  the  liberties  thereof,  be  immedi- 
ately conveyed  by  the  sheriff  or  sheriffs,  his  or 
their  deputy  or  deputies,  and  his  or  their  of- 
ficers, to  the  hall  of  the  Surgeons'  Company,  or 
such  other  place  as  the  said  company  shall  ap- 
point for  this  purpose,  and  be  delivered  to  such 
person  as  the  said  company  shall  depute  or 
appoint,  who  shall  give  to  the  sheriff  or  sheriffs, 
his  or  their  deputy  or  deputies,  a  receipt  for  the 
same ;  and  the  body  so  delivered  to  the  said 
company  of  surgeons,  shall  be  dissected  and 
anatomised  by  the  said  surgeons,  or  such 
persons  as  they  shall  appoint  for  that  purpose  ; 
and  that  in  no  case  the  body  shall  be  suffered 
to  be  buried,  unless  after  such  body  shall  have 
Wca  difsected  *od  aoatomiied."    f ottar. 


feited  and  fost  by  the  attainder  for  treaaoa, 
of  the  peraons  possessed  of  them,  and.  can  never 
again  be  revived  but  by  a  reveraal  of  the  ta- 
tainder."  §  68. 

'*  A  dignity  descendible  to  heirs  ganeral,  is 
also  forfeited  by  attainder  of  lelooy,  of  tba 
person  possessed  of  it."  §  78. 

**  But  an  entailed  dignity  ia  not  forfeited 
by  atuinder  of  felony,  for  the  sut.  96  H.  • 
does  not  extend  to  attainders  for  felony."  §  79. 
And  he  then  refers  to  this  case  as  fbltowa : 

**  Lawrence  earl  Ferrers,  to  whoae  aa* 
castors  the  dignity  had  been  j^ranted  br  lettan 
patent  in  1711,  to  bold  to  him  and  the  hmn 
male  of  hia  body,  was  convicted  and  exeeoled 
for  murder  in  the  year  1760.  The  d^ni^ 
however  was  not  forfeited,  hut  descended  to  Im 
brother  Waa hington  Ferrers,  (Lawrence  hav- 
ing left  no  issue)  who  took  hia  seat  aoon  afller 
the  execution  of  his  brother."  §  74. 

**  In  the  case  of  a  dignity  descendible  to  hcim 
general,  the  attainder  for  treason  or  Moay  af 
any  ancestor  of  a  person  claiming  soch  dignilT, 
through  whom  the  claimant  roust  derive  to 
title,  though  the  peraon  attainted  was  sefw 
possessed  of  the  dignity,  will  bar  aucb  claia; 
for  the  blood  of  the  peraon  attainted  being  osr- 
rupted,  no  title  can  be  dariyed  throiDgh  nia.* 
§75. 

"  Corruptaoa  of  blood,  was  abolisbed  m  the 
reign  of  queen  Ann,  but  haa  been  revived  fef 
the  statute  39  George  9,  c.  93."  §  78. 

*<  In  the  case  of  entailed  digniiies,  nocomip- 
tion  of  blood  takes  place,  and  therefore  a  difriq^ 
in  tail  may  be  claimed  by  a  son,  surviving  ■ 
attainted  jatber,  who  never  was  posaeand  if 
the  dignity  :  for  the  son  may  claim  from  ihl 
first  acquirer  of  the  dignity,  performam  dbai; 
as  heir  male  of  his  body,  within  the  descrifliia 
of  the  grant ;  and  the  attainder  of  a  father,  or 
other  lineal  or  collateral  ancestor,  who  tm 
never  possessed  of  an  entailed  dignity,  wfll  art 
prevent  the  descent  to  his  issue."  §  79. 

**  In  all  cases  where  a  jierson  has  beeait* 
tainted  of  high  treason  by  act  of  parKanwolt 
or  by  judgment  on  an  indictment  for  bifk 
treason,  petty  treason  or  felony,  the  comiptios 
of  l)lood  can  only  be  removed  by  actof  parfii- 
ment."  §  81. 

**  Where  a  person  is  outlawed  on  an  Indid- 
ment  for  high  treason,  petty  treason  or  frlony, 
his  blood  is  also  corruptod ;  but  it  may  be  iv- 
stored  by  act  of  pArliameot,  or  by  a  revensl  if 
the  outlawry,  by  writ  of  error,  which  msy  tl 
done  during  the  life  of  the  peraon  outltwt'i 
or  at  any  time  after.  A  writ  of  error  to  re* 
verse  an  outlawry  is  not  however  ex  debileju- 
t'Uiitt  and  therefore  can  only  be  obtained  bj tbi 
favour  of  the  crown."  §  B4. 

'*  The  House  of  Lorfis  resolved  [Joum.  Til* 
17,  p.  119,]  in  1702,  that  they  would  not  ia  fa- 
ture  receive  any  bill  for  reversing  oullawricti 
or  restitution  in  blood,  that  should  not  beM 
signed  by  her  majesty  or  her  successors,  fciagi 
and  queens  of  the  realm,  and  aent  by  bff^ 
tlietu  to  their  House  first,  to  be 
then."  §  85. 

a 


The  Coie  ^John  IVUkei,  esp 


A.  O.  1763. 


[9S2 


55.  The  Case  of  John  Wilkes,  esq,  on  a  Habeas  Corpus,  Cum- 
men  Pleas,  Easter  Term  :  3  Geouge  III-  a.  d.   1763. 


TUe  following  Ca%e  is  from  Ihe  late  Mr.  Her- 
joint  WifsonV  ReiwrtB^  2  UMs,  Il^p.  150. 
Bat  ire  btve  adiicd  another  tt\\orl  of  ibe 
Jitilgtneut  from  &  book,  inUtled,  *'  A  Digest  of 
Ibe  Law  of  Libels  ;'*  as  on  coin|ittrisoo  it 
vpprareU  lo  supply  some  defects  \n  the  8er» 
JMiil's  accouDt.  It  was  attempted  to  obtain 
a  fuilrr  report  of  tbe  Judgment  tliao  either 
ef  ib«  two  notes  we  lay  before  tbe  reader- 
He  were  onsacce^sful. 

point  of  the  case,  nainely,  Whether 

of  parliameol  extendeil   lo  a 

teeation  for  a  seditious  libef^  was  Ihe 

Inducement  to  our  inserting  it.     Har^ 

1 

n         Mr*  Serjeant  Wilson's  Report. 

3n  SmunJtiy  April  30.  1763,  in  the  morning^, 
be  defLiitlufii  Wilkea  was  arrested  by  two  of 
be  kini^V  i»e>)^tngerii,  by  ? irtue  of  a  warrant 
^m  the  sccretixry  of  slate  ;  the  tenor  of  which 
ramnt  ift  in  Ihe  \\tmh  foil  owing  : 

m^v*6i        *  Georffe  Montague  Dunk,  earJ 

*  of  Halifax,  viscount  Sun  bury  and 
'  baron  Halifax,  one  of  the  lords  of 

*  bis   majesty's  most    honourable 

*  privy   council,   lieuteoaDt    ^ene* 

*  ral  of  hifi  majefitv^s  forces,  and 
ipol  lecretary  of  slate:  these  are  in  his 
ly^M  tiauie  to  aulbcirisce  ami  require  you 
ig  a  constable    to  your  as<»t&tance)  to 

strict  au'l  diligent  search  for  the  au- 
^^p^.,  printerft  and  publishers  of  a  seditious 
Iftnd  treasoimble  paper,  inttlled,   'Hie  North 
Rriltui.    N*   46,    Saturday   Atiril   23.    1763, 
lor  G.  Kear»«ley  in  Ludgate-itreet, 
atid     ihem,    or    any    of    them, 
J  i.  to   apprehend  and  seize,   to- 

Jifir  papers,  and   to  briug^  in 

custody  before    me,  to    be    eiamined 
ling  tlie  premisses,  atid  further  dealt 
rding   to   law :    and    in    the  due 
^  thereof,  all  mayors,  sherjH's,  jus- 
,  „  the  peaci*,  constables,  smi  all  other 
fO^eaty's  officers  citil  and  miliury,  and 
~  C  subjects  whom  it  mAy  concern,  are  to  i 
ling  and  assisting  lo  you,  as  there  tihall 
casion ;  and  for  so  doing  this  shall  be 
wmrrant.      Given  at    St.  James's  the 
of  April,  in  the  third  jear  of  hiw 
reigti^  Dunk  HAUfAX.' 

lliao  CarnngtoD,  John  Mo- 
'tiey,  Jftm«  Watsou,  aud  Robert 
Blackmore.  four  of  his  miycsty^a 
ill  ordinary.* 


^^iioiaiDCirtitDg,  a  copy  of  tbu  abo?e  wat^ 
I  hating  been  obtiuned  from  the  nw — ^ 


who  then  had  Mi.  Uitkeu  in  ihelrown  rurto<lj% 
and  an  afBdAvii  being  msde  of  the  ti  uth  of  suefi 
copy,  and  th»t  Mr,  Wilkes  wasihcn  in  custoily 
of  two  of  tbe  alMive  messeugera  al  his  house  in 
Great  George- street,  in  Westminsier,  the  mme 
were  produced  m  I  lie  ourt  of  Common  Pleas 
the  sameSOUi  day  of  Ajiril  at  t«ii4 re  o'clock  at 
no(>n,  or  4  few  rainuleii  before  or  aAer  that 
hour ;  whereunon,  at  the  same  time,  it  was 
moted  by  my  learned  brother  Glynu,  that  a 
writ  of  Habeas  Corpus  might  l»e  atloweil  U» 
issue  iostantly,  returnable  forthwith.  The 
lord  chief  justice  Pratt  was  pleased  to  say,  that 
this  was  a  most  extraonlioary  warrant;  and 
tbe  Court  ordered  an  Habeas  Corpus  lo  be 
issued  instantly,  returnable  forthwith.  It  being 
DOW  about  one  o'clock,  the  rule  of  court  for  the 
issuing  the  Habeas  Corpus  could  not  poii^ihly 
bedra^n  up  and  entered,  nor  could  tbe  writ  be 
made  out,  Kigned  and  passed  under  the  seal  of 
the  Court  b«ibre  four  or  five  o^clock  in  the 
atKi  ud  allhoogh  it  was  certainly  kiiowA 

by  J  under  toe  crown,  porticularly  by 

Mr.  i^  t-bij,  ihen  itolicitor  to  the  treasury,  that 
this  writ  had  l»een  onlered  lo  issue  by  tiie  Court 
between  twelve  and  one  o*clock,  while  Mr, 
Wilkes  was  io  the  custody  of  the  messengers 
at  his  house  in  Great  George-atreet^  yet,  beTof# 
the  comitig  of  the  writ  to  the  messengers,  (the 
same  afteroo<jn  about  five  o^clo^jk)  Mr  Wilket 
was  liaslily  (I  hud  almost  said  id  contemot  of 
ihe  king's  high  court)  committed  to  the  Tower 
of  Lotiuuu. 

Mr.  Wilkes's  solicitor,  and  one  of  his  coua- 
sf  I,  £oon  af\er  I  hey  heard  of  such  commitment, 
went  to  the  Tower  iu  order  to  consult  and  ad- 
vice with  him,  but  were  denied  admittance  ta 
him  ;  m^jor  llainsford  intorrning  ilieui,  that 
he  had  received  orders  from  the  secretary  of 
stale  (lord  HsUfsx)  not  to  admit  any  ptrson 
whatsoever  to  speak  with,  or  see  Mr.  Wilkes  i 
and  further  informed  them,  that  he  had  just 
before  refused  the  right  honourable  earl  Tem* 
pie  such  admitlAOCtf,  nt  audivi. 

On  Huoday  May  the  first,  the  same  gentle- 
men  went  again  to  the  Tower,  between  iha 
hours  of  twelve  and  oii€,  on  ili€  same  occaaion, 
but  were  again  denied  admittance  lo  iee  or 
speak  nith  Mr.  Wilkes  {  and  soon  afWrwards, 
several  noMeoieo  and  geniHsiiMm  of  Ibe  CIrsI 
distinction  werfi  refused  admiltaii€«  to  see  Mr 
speak  to  Mr  Wilkes,  and  fiArtkularly  his  owo 
brother  was  refowed,  nt  audiri, 

AHer  sochdenisl,  Mr.  Wilkes's  solicitor  de- 
mandeft  of  nitjor  itainaford  a  coiiy  of  ilie  war- 
rant <if  ctuniiiitmeni  of  Mr.  Wilkes  lo  the 
Tower,  wbioh  was  readily  gran  tell  by  the  ma* 
jor,  the  ieoor  whereof  is  in  tlie  wiwds  fidkiwlng: 
*  Charles  earl  of  llgretuoiit  and  George  Dunk 
«  earl  of  Halifax,  lords  of  bis  majeaty'ji  mcait 
'  honourable  privy  coituetl|  end  prieoipal  »e* 


983] 


S  GEORGE  III. 


The  Case  of  John  Wdhes^  esq. 


[m 


*  oreUrieB  of  state:  these  are  in  bis  raiyest^'s  ; 

*  oaine  to  authorize  anil  require  yon  to  receive 

*  into  your  custody  the  bmly  of  John  Wilkes,  ! 
<  e^q.  herewith  sent  you,  for  beini;  the  author 

*  and  publisher  of  a  most  infamous  and  sedi-  ' 
'  tious  libel,  intitleil,  The  North  Britou,  N""  4.S,  I 

*  tmdini;  to  inflame  the  minds  and  alienate  the  \ 

*  afleciions  of  the  people  fiom  his  majesty,  and 

*  to  excite   them  to   traitorous    insurrections. 
*"  against  the   government,   and  to  keep  him 

*  sate  and  close,  until  he  shall  be  delivered  bv 
'  due  course  of  law ;  and  for  so  doing  tbb  thall 

*  be  your  warrant.  Given  at  St.  James's  the 
«  dOth  day  of  April  1763,  ui  the  third  year  of 

*  bis  majesty's  reign. 

*  Egremomt,  Dunk  Halifax.' 

'  To  the  right  honourable  John  lord 

*  Berkley  of  Stratton,  cousUble  of 

*  bis  miyesty's  Tower  of  London, 
^  or  to  the  lieutenant  of  the  said 

*  Tower,  or  his  deputy/ 

Mr.  Webb,  solicitor  to  the  treasury,  being 
present  in  major  Rainsford's  room  when  the 
copy  of  the  said  warrant  of  commitment  was 
granted,  Mr.  Wilkes's  counsel  and  solicitor  ap- 
plied to  BIr.  Webb  for  admittance  to  Mr. 
Wilkes;  whereupon  (it  is  true)  Mr.  Webb 
desired  the  major  to  allow  such  admittance,  and 
•aid  he  would  be  answerable,  and  indemnify 
the  major  :  biit  the  major,  with  the  true  spirit 
of  an  excellent  officer,  answered,  *  He  would 
not,  or  he  could  not  disobey  orders.'  Mr. 
Webb  replied  and  said,  be  imagined,  or  he 
belieyed,  there  must  have  been  some  mistake 
jn  the  orders,  and  that  if  either  of  the  secreta- 
ries of  state  were  in  town,  he  would  apply  and 
eodeayour  to  obtain  the  desired  admittance; 
and  that  if  he  could  succeed  therein,  he  would 
send  or  brinj?  an  order  for  that  purpose  in  the 
afternoon  of  the  same  Sunday,  May  the  1st ; 
whereupon  Mr.  Wilkes's  counsel  and  solicitor 
departed  from  the  Tower,  for  some  hours,  and 
between  the  hours  of  eight  and  nine  in  the 
evening  of  the  same  day,  returned  again  to  the 
Tower,  and  applied  for  admittance  to  Mr. 
Wilkes;  but  the  ma^or  not  havioir  received  any 
onlers  or  message  /rora  either  ot  the  secreta- 
ries of  state,  or  from  Mr.  Webb,  refused  admit- 
tance, as  he  had  done  before,  ut  audivi. 

On  Blonday  the  2nd  day  of  May,  at  the 
^ittin^  of  the  Court  of  Common  Pleas  in  the 
morning,  the  messengers  returned  the  writ  of 
Habeas  Corpus  which  had  issued  and  had  been 
delivered  to  them  on  the  SOth  of  April  in  the 
afternoon,  after  Mr.  Wilkes  was  out  of  their 
'  custody,  and  committed  to  the  Tower  as  above ; 
the  tenor  of  which  return  indorsed  on  the  same  \  without  delay, 
writ  returns  thus,  viz.  *  In  obedience  to  the 

*  within    command,   we    humbly    certify   to 

*  his  inaiesty's  justices  of  the  court  of  Com- 

*  luoii  Pleas  at  Wesminster,  that  at  the  time 

*  of  the  coming  of  this  writ  to  us,  the  within 

*  named  John  Wilkes  was  not,  nor  at  any 
<  time  since  hath  been  iu  our  custody,  or 
/  ij»  ti^  CUf  tody  of  either  of  us  ^'   aigned  by 


llUwCMrf 

Sir    wilM 
Menfa,    •« 
had  I  ta.  or. 
fbrUivt<^ 
IbeKUn 
vuiililk 


Tfaabkeii 


firUiattk 
•.ILataic 
MkhMlM 
t»mffi& 


two  of  the  messengers  to  whom  the  writ  was 

directed. 

Upon  reading  the  writ  and  the  return  therasf, 
it  was  moved  by  the  king's  Serjeant,  that  the 
same  mig^htbe  affiled  of  record. 

To  which  Serjeant  Glynn  for  Mr  .-Wilkes  ob- 
jected, and  insisted  that  tlie  return  was  tos 
general  in  this  particular  caae,  (altbou}^  ii 
might  be  a  good  return  in  another  ease  not  tk^ 
cumstanced  like  the  present)  for  that  it  dcariy 
appeared  to  the  Court  by  sufficient  evideaor, 
viz.  the  affidavit  and  warrant  of  arrest  asl 
seizure  of  Mr.  Wilkes,  npoo  which  the  writ 
was  founded  and  granted  hist  Saturday  at  oosi^ 
that  Mr.  Wilkes  was  then  in  the  costody  sf 
the  messengers,  and  therefora  they  oogfat  m 
have  returned  and  certified  to  the  Court  in  wImI 
manner,  when  and  by  what  authority  ha  mm 
taken  out  of  their  custody,  and  what  was  be- 
come of  his  body. 

Some  of  the  king's  Serjeants  replied,  tbsl  lU 
the  precedents  of  retnriiM  of  wriu  of  UibeN 
Corpus  jn  the  Crown-office,  where  the  piit]r 
therein  named  was  not  in  tlie  custody  of  tk 
messengers  (to  whom  the  writ  was  directed) « 
the  time  of  the  coming  of  tlie  writ,  were  lib 
the  return  in  the  present  case ;  which  aasntiM, 
at   first   seemed    to    have    weight   with  tW 
lord  chief  justice  and  two  others  of 
the  judges,  who  whereupon  tlioughi 
the  return  well  enough  ;  but  Mr. 
Justice  Gould  was  pleased  to  say 
he  much  doubted,  whether  the  pre- 
cedents in  the  Crown-office  of  re- 
turns to  writs  of  Habeas  Corpus 
were  like  the  present  return,  as  bad 
been  asserted  by  the  king's  Ser- 
jeants ;   and  said  if  the  precedents  were  sit 
so,   he  sliould   be  of  opinion,  that  this  «« 
an  insufficient   return,  because    he  tbsogH 
from  what  appears  in  evidence  in  the  cbR| 
the  Court  has  a  right  to  know  wliat  ii  k- 
come  of  the  king's  subject  Mr.  Wilkes,  nset 
he  was  in  the  me^iseui^fer's  custody  UstSstsr- 
day  at  noon ;    t\  hereupon  (futsUanlt  cmth)    ^ 
the  ivrit  and   return   were  not  permitted  is 
be  affiled  of  record  upon  this  motion;  lai 
precedents  were  urderetl  to  be  looked  ioio,  asil 
the  matter  of  the  return  was  ordere<t  to  bril^ 
bated  at  another  day  ;    but  1  never  heani  thst 
it  was. 

Afterwards  the  same  Monday,  May  %  ^ 
motion  was  made  to  the  Court  grounded  iipoe  ^ 
copy  of  the  aforesaid  warrant  of  coiumiiaiCB^ 
of  Mr.  Wilkes  to  the  Tower,  and  an  affidsii^ 
of  the  truth  thereof,  for  another  Habeas  Corpi^ 
to  be  directed  to  the  constable,  &c.  of  the  Tusi*^ 
of  London,    which    was  granted    relumafei^ 


Tuesday,  May  3.  At  the  sitting  of  the( 
(which  was  crowded  to  such  a  degree  si  -^ 
never  saw  it  before)  in  the  morning  Mr.  IVilh^^ 
was  brought  to  the  bar,  and  sat  among  i^^? 
Serjeants  (next  to  the  reporter  on  his  left  baaC? 
when  the  lieutenant  of  the  Tower  retsfM^ 


I 


upon  this  second  writ  of  Habeaa  CorpM*^ 
warrant  of  comiuitment  of  Mr.  Wilkes  |9lW 


f 


»85] 


tm  a  Habeas  Corpus* 


A.  D.  1763, 


1980 


ftower  li  V  tbc  two  secretaries  of  state  (before  , 
yiet  ibrlh) ;  which  beinif  rfad,  serjeaTil  Glynn 
fiiQi/eU  the  Court  thnt  Mr.  UMkt^  mi|;ht  [m 
iliscliarfjed  out  of  custody  wit  hoot  tiail,  mt«l 
^rouiideiJ  his  molioD  du  three  poiuts,  two 
^^frlltsrt^«Jf  were  olijecttonM  to  ihe  lejfalily  of  I  lie 
^rarraot  of  couinniiiieDt  (ihe  reader  wih  tih- 
fer^e  thai  the  general  warrairt  of  arrest  aad 
seizure  was  out  now  before  ttie  Courts  and 
tiieretbre  the  legahty  of  that  could  not  nuw  be 
tiebaled) ;  tbe  tliird  ^loint  was^  that  Mr«  Wilkea 
lv«6  a  ynentb^er  of  parliaroent,  and  ibercfore  woi 
privileged  from  being'  arrested  for  any  crime 
^cept  tfeaiioo,  felony,  and  breach  of  the  peace ; 
mod  Uial  fiuppu^iiig  aim  tbe  author  of  tlie  pre^ 
sent  suppo!»ed  libel  (which  he  absolutely  de- 
nies) it  h  only  a  miidemeaoor,  and  Done  tif  the 
three  ahove-mentioned  crimes  and  iiysde* 
iDeafiors. 

The  first  ohjectiou  taken  to  the  warrant  of 
commitment  was,  that  it  doth  not  appear  to 
Ibe  Court  that  Mr,  Wiikes  was  charged  by 
aity  evidence  or  informafion  upon  oath  before 
tbe  secretaries  of  state,  that  lie  was  the  author 
/Dr  puhbsher  of  the  North  Erilon^  N'^  45, 
jtbat,  for  any  tbiag  that  appeared  to  the  Court 
^  the  coutrai-y;  the  lecretarlea  of  ^tale  com- 
imiited  Mr.  Wilkes  to  il»e  Tower,  upon  their 
pvin  mere  iiiiaginatioa  or  susjpicion  that  he 
WAS  the  Bullior  and  publisher  ot  this  supposed 
puieh 

Tbe  secood  objection  taken  to  the  warrant  of 
^commitment  was^  that  it  was  too  general,  and 
^mh  not  set  forth  stufficient,  subsUtutial  tnatler 
whereupon  the  Court  can  judge  whether  the 
i>forlh  liriton,  N''  45t  (supposing  Mr*  Wilkes 
itlie  author  and  pubhsher  thereof)  is  a  most 
Jai famous  and  seditious  libel,  tending  to  in* 
JIame  the  minds  and  alienate  the  aifections  of 
the  people  from  his  majesty,  and  to  excite  them 
to  triutorofis  insurrections  against  the  gOTern- 
^neiit ;  that  the  warrant  not  baviDg  set  fortlt 
ibe  North  Briton,  N"^  45,  or  such  parts  lhere> 
«f  as  the  secretaries  of  state  deemed  irifa- 
fiioiiSi  seditious,  6cc.  the  Court  cannot  judge 
IV  bet  her  any  &uch  paper  ever  existed,  ii  not 
liciug  before  iheiu  ;  or  if  it  dnesexistj  whetlier 
it  he  an  infamous  libel  or  not. 

In  tbe  third  place,  supposiag  ibe  warrant  of 
comniilment  to  be  good,  yet  that  Mr.  Wilken 
being  a  member  of  prtiameol  (which  was  ad- 
4901  It  ed  by  ibe  kin  it's  counsel)  is  privileged  from 
arrests  in  all  cases  except  treason,  felony,  and 
jictuai  breach  of  the  peace«  therefore  ought  to 
l>e  discharged  without  bail.  That  libels  may, 
,Mn4  often  do  tend  to  the  breach  of  the  peace 
r'was  admitted,  and  therefore  tbe  Court  of 
ILing's-bench  frequently  grants  inrormations 
against  the  authors^  printers  and  pubiisbers 
'jUiereof ;  but  this  is  nerer  done  but  upon  affi- 
ilaYiti  laid  before  the  Court  ascertaining  the 
said  authors,  printers  or  publishers  :  for  surely 
that  matter  w  hich  only  tends  to  a  breach  of  the 
cCf  catiuot  with  any  propriety  be  said  to  he 

•  Bee  BuiheraCase,  voL  G,  p.  9^9.  3  inat. 
\  >0  t.  BucoD.    Ahr.  title  CommuoEieut  £, 


an  actual  breach  of  the  peace;  and  it  was  saiil 
that  it  m  univefantlY  agreed,  a  libel  is  not  aa 
actual  breach  of  ilie  peace ;  therclore  it  was 
itiiitsted  for  Mr.  Wilken,  iliat  upon  this  |»oiiit 
nlone  (although  the  others  should  be  over- 
ruled) he  ought  to  be  discharged  from  his  im- 
prisoDmeut  in  the  Tower,  without  UaiL 

Mr.  Sei'jeaui  Hewitt  ihr  the  crown,  in  answer 
to  ibe  firbt  olijectiou  isaid,  that  it  was  not  ne^ 
ceaaary  to  set  forth  the  evidence  or  information 
upon  which  the  warrant  of  coramUment  wa« 
made,  in  tJie  warrant ;  but  as  to  the  second  oh* 
Jectiou,  he  admitted  that  it  must  appear  upon 
the  face  of  such  warrant  for  what  particular 
species  of  a  crime  or  uiibdemeanor  the  party- 
was  cnmmilted,  accordmg  to  the  case  of  the 
King  V,  Roe  Aud  Keudall,  [1  SaJk.  345,  5  Mod. 
78,  and  in  thii*  Col  lection,  vol.  12,  p.  1*299,,]  and 
that  in  the  present  case,  if  the  commitment  had 
been  for  wriiiug  and  publiaibiug  a  libel  gene- 
rally, without  specifying  the  nature  and  ten^ 
drocy  thereof,  it  would  have  been  ill ;  but  here 
it  is  said  to  be  ^^  for  being  the  author  and  pub- 
hsher  of  a  mo«t  infamous  and  seditious  libel, 
lending  to  in  flattie  the  minds  and  alienate  the 
aflfectiona  of  tbe  people  from  his  majesty,  and 
to  excite  them  to  triiitorous  insurrections  against 
the  government.^'  This  he  thought  was  a  snf- 
6cient  specilicalion  of  the  nature  of  the  libel, 
and  of  the  misdemeauor  supposed  tu  be  com- 
mitted by  Mr*  Wilkes  against  the  government; 
but  he  said  he  would  not  be  understood  to  af- 
tirin  that  tbe  puper  called  the  North  Briton 
N**  4^,  (which  was  not  before  the  Court) 
was  a  hbel ;  that  he  had  found  no  ca^ie  upon  u 
lihel  hke  this,  and  therefore  could  not  say  what 
was  a  sufficient  and  precise  certainty  iu  a  war- 
rant of  commitment  for  a  libel ;  but  he  thought 
it  not  necessary  to  set  fortli  the  whole,  or  any 
part  thereof,  in  the  warrant. 

As  to  the  third  objection  of  privilege, Serjeant 
Hewitt  admitted  that  Mr  Witkea  was  a  mem* 
her  of  parUainent,  and  could  not  legally  be  ar- 
rested but  for  treason,  lelony,  or  breach  of  the 
peace.  Be  cited  11  ob.  2]5»  Hick^s  case,  to 
shew  that  a  libel  tends  to  the  breach  of  the 
peace  ;  but  whether  the  presumed  libel  in  the 
present  case  was  a  breach  of  the  peace  or  not, 
he  would  not  take  upon  himself  to  sa  v  ;  nor 
would  he  say  that  the  arresting  Mr,  Wilkes  in 
the  present  case  was  not  a  breach  of  privilege 
of  the  House  of  Commons. 

Serjeants  W  hi  taker,  Nares  and  Davy,  for  the 
king,  S£oke  to  tbe  like  efl'ect;  but  none  of 
them  affirmed,  that  the  writing  or  publishing  a 
libel  was  an  actual  breach  of  the  peace  (as  t 
understood,)  or  that  the  arre«t  of  Mr,  Wilkes 
in  the  present  case,  was  not  a  breach  of  privi- 
lege of  parliament ;  and  (1  think)  they  ail  de* 
dined  saying  any  thing  more  about  the  privi- 
lege Mi'  parliamenti  tbao  what  Serjeant  IJewitt 
had  said  before.  When  the  king^s  serjeatita 
had  concluded,  Mr.  Wilkei  made  the  folluwing 
Speech  to  tbe  Court, 

*  My  lord ;  I  amn  bappy  to  appear  before 
*  jour  lordship  and  tbii  Coart^  where  Uberty  J9 


^ 


GEOUG 


: 


«  90  ture  of  finilint;  proteciioD  and  suptiort,  un*\ 
^  \?here  ibe  Uw  (the  («nncipte  nod  end  of  which 

*  is  the  pr^ervafion  of  liherty)  i;*  bo  perfectly 

*  understood.     Liljeriy,  my  lord,  hath  been  the 

*  poveriiio(j  prinri|de  of  ev«ry  action  of  my 
'life;  tind  actuated  by  it,  i  aliriys  haire  en- 
'  deavoured  to  flerifc  my  gracious  sovererg-n  and 

*  his  family,  knowing^  his  giiv^mmtDt  to  be 
•founded  upon  it;  but  as  it  has  been  liis  mis- 

*  fofUine  to  have  employed  mintiterR  who  hiTe 

*  eodeaFOured  to  cast  the  odium  and  contempt 
'  arising  from  their  ovrn  terrible  and  corropt 
'  measures  on  the  sacred  person  of  their  sore- 

*  rei/jn  and  benefactor,  so  mine  has  been  the 

*  dahntr  *as^  ^^  rescue  the  royal  person  from 

*  ill. placed  impiitalions,  and  fix  them  on  the 

*  ministers,  \*ho  alone  ought  to  bear  the  blame 

*  and  the  punishment  due  to  their  iincoostitu- 

*  tional  proceeding.     For  the  proof  of  my  zeal 

*  and  affection  to  my  sotercign  I  hare  been 

*  imprisoned,  sent  to  the  Toner,  and  treated 

*  v^  ith  a  riijour  yet  unpractised  even  on  Scot- 
«  lish  rebels.     But  hoffefer  these  may  strive 

*  lo  destroy  me,  whatever  persecution  they  are 

*  how  meditating  against  me,  yet  to  the  world 

*  1  shall  proclaim,  that  offers  of  the  most  ad- 

*  vantagenus    and    lucrative   kind    hare  been 

*  made  to  seduce  me  to  their  parly,  and  no 

*  means  left  untried  to  win  me  to  tbetr  connec< 
*'tion8»      Now,  as  their  attempts  lo  corrupt  ine 

*  have  fulled,  they  aim  at  intimidating  m©  by 

*  persecution.  But  as  it  has  pleased  Gf»d  lo 
«  give  me  virtue  to  resist  th^r  bribes,  9o  1  doubt 

*  not  bwt  he  will  give  me  spirit  to  surmottnt 

*  their  threats  in  a  manner  becoming  an  En- 

*  gliBhman  who  xvould  suffer  the  severest  trials 

*  rather  than  associate  with  men  who  are  ene- 

*  mies  to  the  liberty  *>f  this  oountrv.    Their 

*  bribes  I  rejected,  their  menaces  1  defy ;  and 
«  I  think  this  is  the  most  fortunatecfent  of  my 
'  life,  when  1  appear  before  your  lordship  and 

*  this  Court,  where  innocence  is  sure  of  protec- 

*  tion,  and  liberty  can  oever  want  friends  and 

*  ^ardians/ 

Then  the  Court  took  time  to  consider,  and 
appointed  Friday  following  to  give  their  opi- 
nion, and  ordered  Mr.  Wiikes  to  be  remanded 
to  the  Tower,  and  to  be  brought  up  again  to 
the  bar  on  Friday  the  61h  of  May ;  and  upon 
that  day,  Mr.  W  ilkes  being  again  at  the  bar» 
ttie  Lon1  Chief  Justice  delivered  the  opinion  of 
the  whole  Court 

L.  C.J.  Prfl(r,  af^er  stating  the  warrant  of 
commitment,  said,  There  are  two  ot»jeclions 
taken  to  the  legahty  of  this  warrant,  and  a 
third  matter  insisted  on  for  the  defendant,  i« 
privilege  of  parliament. 

The  ^rst  objeclion  is,  that  it  does  not  apfiear 
lo  the  Court  that  Mr.  Wilkes  was  chargeil  by 
•ny  evidence  liefore  the  secretaries  of  state, 
that  he  was  the  author  or  publisher  of  the 
Worth  Briion  N**  43.  In  answer  to  this,  we 
are  all  ot  ijpiniOQ,  that  it  is  not  neccjisary  lo 
•tate  in  the  warrant  that  Mr.  Wilkes  was 
charged  by  any  evidence  beftire  the  secretaries 
•f  iiatep  md  that  thii  objection  has  no  weight. 


^?^**^, 


The  Case  of  John  WUkes^  eif* 

Whether  a  justice  of 
out  any  <  x    ' 

rant  for  n  ^r  »  criillf«  is  i 

question,     i,   t±  *  imif-  be  ifofte  in  hiiitgH 
may  eommtt  the  criminal   upon  thefysH; 
where  he  is  f»A  present*  lie  cini^t  aam 
mit   upan   discretion.      ^ 
bath  notice,  or  a  (^articttlar  iiDfiwtM](f#  tl 
person  has  been  ^tuUy  fif  au  offt 
not  think   it  Is  a  sufficieBt  ftfroun 
commit  tJie  criminal  i  hut  in   that  can 
rather  a  witness  than  n  mntjiMrmle,  md 
to  make  oath  of  thr  r  t  r*  aii>me  olke 

gistrate,  who  shcuf^;  on   act  liie 

part,  by  granting  a  i%  ai'raut  to  apprelnt^ 
offender ;   it  bein^  more  dt  thai  the 
should  appear  as  a  witness,  titao  act  a*  a 
fristrate.     But  ttjat  is    not  th«  qoesti«i 
this  warrant.    The  question   her«  is, 
it  la  an  essential  part  of  the  wrarrani,  tinl 
information,  evidence  or  irroiiDrfs  of  tbt  " 
before  the  secretaries  of  Rtmie  shotil 
forth  in  the  warrsnt?  And  «r«*  think  tl' 
Thomas  Rndyard's  ease,  2   V«fnt.   Mi 
be  ajvplied  to  this  case;  for   in  the  caattfi 
conviction  it  is  otherwise.      It  was  said 
charge  by  witneis  wna  the  grround  of  a 
rant ;  but  we  think  it  not    requisite  ta  *ct 
more  than  the  offtftice,  antS  the  pai  ticoUr 
cies  of  it.     It  may  be  objected,  if  this  be 
every  man's  liberty  will  be  in  the  power 
justice  of  peace.     But'  Hale,  Coke  tnd  " 
kin^,  take  no  notice  that  a  char^  ii 
to  be  set  out  in  the  warrant,     in  the 
the  Seven  Bishops,  their  commel  ificf  not 
this  objection,  which  no  doubt  bnt  tkey 
have  tlone,  if  they  had  thought  there  "^ 
any  weit^ht  in  it.     I  do  not  relv  ttpQH 
termination  of  the  judges  who  tneu 
the  King's- bench.     I  have  been 
many  precedents  of  warnnts  returned  iflU^ 
King*8- bench  ;    they  are    almost  tia(V< 
like  this ;    and   in    sir  William    W^ .. 
case,  1  Stra.  2,  3*  this  very  point  before  «il 
determined.     And  Hawkins,  in  his  2  PI.  CartI 
no,  sect.  IT,  says,  "  It  is  safe  lo  tel  1^ 
that  the  party  is  charged  upon  oath  ;  iMitM 
is  not  necessary  ;  for  it  hath   been   rtiBiM 
that  a  commitment  for  treason,  or  for  sti«(^0S 
of  it,  without  seltinur  forth  nny  particolsr  aeo 
sation,  or  ground  of  suspicion,  is  good  ;''  id 
cites  sir  William   Wvndham*8  case,  Tnt.  I 
Geo.  Dalt,cap.  12!,  Cromp.  233,  b. 

The  second  objection  is,  that  the  libel 
to  be  set  forth  in  the  warrant  in  /urc  ferfto,*^ 
least  so  much  thereof  as  the  secretaries  of  ilift 
deemed  infamous;,  setfitious*  Sec.  that  the  CmA 
may  judge  whether  any  such  paper  ever  e^ 
istefl ;  or  if  it  does  exkt,  whether  it  be  aol^ 
famous  and  spilitious  liM,  or  not.  Bnt  »pPi 
all  of  a  contrary  opinion.  A  warrant  of 
mitment  for  felony  must  contain  the  k| 
felony  briefly,  **  as  for  fefonv  for  the  d* 
J,  S,  or  for  burg'ttry  in  breatinjj  the  h< 
J.  8.  &c.  and  ihe  n^ason  i^,  ti«x*ause  it  mt] 
pear  to  the  judges  upon  the  return  ofafl 
beas  Corpus,  whether  it  be   fdony  or  not-* 


Wi  9  Haheas  Curpui* 

migtstrile  formn  Kb  jadi^ment  upon  the 

»**    M-1>*^th**f  ji  t)e  ^fi   iuf^tinniiK  antl  scdi* 

>  at  his  peril :  and  perhaps  the 

nnt  codtaiu  die  whole  of  the 

'»«>  oeccifiir^  to  tnnke  the 

no  other  ivord  in  the  law 

hbri  wliereUy  to  express  the  trtti5  rdeft  of 

hifttiiioiH  *¥nhO|jj.     *Vi»  unite  ml  ond  the  oa- 

E  of  a  hhei  ««  ircll  4S  a  spcrties  of  felooy. 

I»  wik'vi  (h«*  IiIh*!  r^iiLfht  to  b«>  <}tAt4>f1,  hpf<auBe 

-,  ^   .  vl    ,■       ,    ..  ,  ''va  or 

lii  liif  iiinu     if  irte  pB- 
I  not  he  afraid  torei&u  it* 
;•-)  i^ :  able  io  determine  ttiat  it 
I  «  I  1  (»  could  tiot  jud^e  that  it  was 

a  U^^v .,  .Ji  i  «use  \>(  inuendi)^,  &C.  It  may 
aaxd,  thdi  without  »eetn£r  llie  hhel  we  are 
i  mhh  to  tix  tlie  rjuatituni  of  (he  hail ;  but  to 
iwrr  to  this,  I  he  nature  of  the  ofeice  is 
»frfi  by  u<!.  It  is  said  to  be  an  tnf^imoos  aod 
iiioiii  lihel,  it  is  audi  a  misdemeanor  as  we 
fequlru  ifood  bail  for,  (moderation  to  he 
ed)  and  such  as  the  party  may  be  able 
iirocuri!. 

Tbc    third   matter   insisted    upon    for  Mr« 
i«,  that  he  is  a  meinber  of  paHiameot^ 
has  been  admitted  by  the  Vine's  »er- 
tnU)  and  tntitled  to    privilege   to  be    free 
arrests    in    all    cases    except    t reason » 
\\  and  actual  breach  of  the  peace,  and 
t>fJ^,^T^  oujfht  to    be  distbar^ed  from   iro- 
without    b^iil  ;    and    we    are    all 
ihal  he  U  iiiiitled  to  that  privilege^ 
rifed   without    btt»>.      In 
-       a  Bi&hops,  the  Court  took 
t»f  the   pnyj|e|^e    of   parltaruent,  and 
the  bishops  would  have  been  intitt«dtu 
had  not  juilged  them  to  hat e  Iteeti 
•  breach  of  ihc  peace  ;  for  three  of 
nichlf  HoUoway,  and  .VHyhone,  deemed 
u«  hbet  to  be  an  actual  breach  of  the 
iod  therefore  they  were  ousted  of  their 
unjustly.     If  Mr  Wilkea  had 
i--"rT^T  •  ?  as  a  member  of  parliament  in 
uist  have  taken  notice  of  the 
.^,,:^k:oC  parliament,  otherwise  the 
n  would    be  w|tbonl   remedy,  vihere 
T  art-  ^^ronirfutiy  arresteil  a^ost  the  law  of 
Wo  are  bduitd  to  take  notice  of 
\rtn  as  beini^  part  of  the  law  of  the 
i,  «5,  say  a,  ifee  privilege  of  parlia-  t 
mdens  it  be  in  three  oases,  viz.  ; 
3ind  the  peace :  these  are  the  . 
In  the  trial  of  the  8eveti 
in  this  case  of  pri-  t 
where  surety  of  the  I 
|mr'»i,       rnvdi'^f'    of  j>.U'lr3Uuent  ' 
irmaiioDN  for  the  kin^f,   uhft.^H  in  , 
r,..,.  ,y,...^,.  A      ^11.^  ^,j|^^  of  an  in-  \ 

le  fbr  bribery,  | 
,,i„,.  i,,     i:.\,ilt'i!e  ol  parha> 


A.D,  1765. 


I9m 


Ttinkei 
Di»m.   [ 


be  ^  ini'ttuke  of  the  reporter  ; 


was  In  1758.    Hee 
^iiit  to  thai  yeir, — 


ment*  See  the  llesolution  of  Lords  and  Com- 
mons, auoo  1076.  We  are  all  of  opinion  that 
a  libel  is  not  ti  breach  of  the  peace  It  (ends 
to  the  breach  of  tt»«  peace^  and  that  is  the  ut- 
tuoat,  1  Lev.  iSiK  But  that  ithich  only  lendf 
to  the  breach  of  the  peace  cannm  tn;  a  breach  of 
it.  HuppoKC  a  lihel  be  a  breach  of  the  peacr, 
yet  I  think  it  cannot  exclude  privilege;  be- 
cause 1  cannot  lind  that  a  litielkr  is  bound  to 
find  surety  of  the  peace,  iu  any  hook  whatever, 
nor  ever  w»p,  in  any  case,  except  one,  viz,  the 
case  of  theHtven  Bishops,  wbtre  three judjjef 
said,  that  surety  of  the  peace  was  re^tiired  in 
the  case  of  a  lihel.  Jud^t>  Potvell,  the  only 
honeat  man  of  the  lour  judges,  dissented  ;  noti 
I  am,  bold  to  be  of  his  opinion,  and  to  n^y^  that 
case  is  not  law.  But  it  shews  the  nii^erabl« 
condition  of  the  state  at  that  time.  Upon  the 
whole,  it  is  absurd  to  retjoire  surety  of  tha 
[fcace  or  bail  in  the  case  of  a  libeller,  and  there- 
tore  Mr.  Wilkes  must  be  discharged  frotu  hii 
imprisoDiKient. 

Whereopoa  there  was  a  loud  husczain  West- 
minster-faalL*  He  was  discharged  accordingly, 

LoftD  Chief  Justice  Pratt*s  Arcvhent 

ON  DELIVERING  TUB  JUDGMENT  OF 
THE  COURT^  FROM  THE  BoOK  EN- 
TITLED, *A  Digest  or  the  Law  or 
Lis els/ 

When  this  return  was  read,  my  brother 
Glyno,  counsel  for  Mr.  Wilkes,  made  two  ob- 
jections to  it  I  and  though  those  should  fail 
him,  he  insisted  that  Mr.  Wilkes,  from  the  na- 
ture of  his  particniar  station  and  character,  as 
beJDgf  a  member  of  the  House  of  Coajmons, 
was  entitled  to  privilege  of  parliament,  and 
ought  for  that  reason  alone  to  be  discharged 
from  his  preseut  imprisonmenl.  To  begin  with 
the  objections.  The  firtit  was,  that  it  did  not 
appear  by  the  warrant  that  Mr.  Wilkes  st^od 
charged  upon  any  evidence  with  being-  the 
author  of  the  hbel  descril»ed  in  the  warrant. 
Ttie  true  question  ariitir)f^  upon  this  objection,  is 
whether  stAtini;  the  evidtncc  be  essential  to  itic 
validity  of  the  warrant.  And  upon  thi*  (mint 
we  are  all  cli^rly  of  opinion  that  the  warrant 
is  (jood.f  We  oonsiiler  the  secietarirs  in  ihe 
light  of  common  justices  of  the  peace :  they 
no  more  than  any  common  justices  can  issue 
warrants  merely  vroff'triot  or  tor  oifence*  with- 
in their  nrivatt-  knowledjij;e,  beiu;;'  iu  those  enne* 
rather  witnessci  than  magistrates.  But  thuu^jh 
this  be  admitted,  it  will  not  affect  the  present 
question.  The  preRenl  que^iion  is,  whether 
the  stating  the  evidence  he  essential  to  the  va 
lidity  of  Uie  warrant  r   No  authority  has  been 

•  Hee  the  Cns^-  of  lord  Shafleshnrv    vJ  Ti, 
p»  15£rtl,  of  thi  flops,  vol.  1 

431.     See  too  »i  I  ibe  Ruig  :    '  r, 

I  Irish  Term  Urpoiis  'iH5», 

t    Bcc    loach's   llawkitia^s   FScii    of  titt 
Crt>wiij  book  t»  c.  l(i|  §  If. 


991] 


3  GEORGE  HI. 


The  Case  of  John  Wilkes^  esq. 


cited  by  the  defendant's  eoonsel  to  shew  it. 
Rudyard's  Case  in  S  Ventr.  S3,  was  indeed  re- 
ierred  to ;  but  u(M)n  examining  that  case,  it 
does  not  apply.  The  cooBinitment  there  was 
a  commitment  in  execution,  and  therefore  it 
was  necessary  in  that  case  to  state  the  er i** 
dence.  It  was  urged  farther,  that  the  ground 
of  the  justices' jurisiliction  rested  in  the  charge 
by  witnesses ;  and  if  it  was  otherwise  every 
man's  liberty  would  be  in  the  power  of  the  jus- 
tices. The  objection  deser? es  an  answer ;  and 
if  it  had  not  been  determined  before,  1  should 
haye  thought  it  ? ery  weighty  and  alarming : 
but  it  has  been  settleil.  Betbre  1  mention  the 
case  where  it  was  solemnly  adjudgeil,  1  would 
take  notice,  that  neither  my  lord  Coke,  lord 
Hale,  or  Mr.  Hawkins,  all  of  them  very  able 


[992 

judge  whether  it  be  a  libel  or  not.  The  is- 
swter  is,  that  the  Court  ought  one  in  this  pro- 
ceeding to  give  anjr  judgment  of  that  sort,  m 
it  would  tend  to  prejudication,  to  take  away  the 
office  of  a  jury,  and  to  create  an  improper  ia- 
6uence.  The  other  reason  was,  tnat  ubIm 
the  libel  be  sUted,  the  Court  cannot  be  able  It 
determine  on  the  quantity  of  bail.  I  answir, 
that  regard  to  the  nature  of  the  offence  is  the 
only  necessary  rule  in  bailing.  At  to  the  of* 
fence  of  a  libel,  it  is  an  high  misdemeanor,  ud 
good  bail  (having  regard  to  the  quality  of  iIm 
offender)  should  be  required.  But  if  ibe  liM 
itself  was  stated,  we  could  have  no  other  nea- 
sure  of  baiting  than  this.  Besides,  there  bif 
been  no  case  shewn  to  warrant  this  reason,  aad 
it  was  not  urged  in  the  case  of  the  Seven  Bi- 


writers  upon  the  crown  law,  have  considered  ;  shops.  But  then  it  remains  to  be  considered, 
such  a  charge  as  is  contended  for  to  be  essen-  \  whether  Mr.  Wilkes  ought  oottobedisehaigid. 
tial.  In  the  trial  of  the  Seven  Bishops,  though  j  The  king's  counsel  have  thought  fit  to  adait, 
tliey  were  commttted  upon  a  similar  warrant,  '  that  he  was  a  memlier  of  the  House  of  Oa- 
their  counsel  did  not  take  the  same  objection.  !  roons,  and  we  are  bound  to  take  notice  sf  it 
In  referring  to  that  j^reat  case,  I  am  not  to  be  '  In  the  case  of  the  Seven  Bishops,  the  Court  look 
understood  as  intendmg  to  give  any  weight  to  ;  notice  of  their  privilege  from  their  descriptios 


the  determination  of  the  judges  who  sat  upon 
the  bench,  in  thst  cause.  I  rely  onlv  on  the 
silence  of  the  defendants'  counsel,  who  were 
all  of  them  lovers  of  liberty,  and  the  greatest 
lawyers  of  that  age.  We  have  seen  prece- 
dents of  commitments  returned  upon  Habeas 
Corpus's  into  the  Kind's -bench,  where  the 
warrants  have  been  all  m  the  same  form,  and 
no  such  objection  taken ;  bnt  the  verv  point 
was  determined  in  tlie  case  of  sir  W.  Wynd- 
ham,  3  Vin.  530.  535.    Stra.  2,  who  was  com- 


in  the  warrant.  In  the  present  case,  thtfe  if 
no  suit  depending.  Here  no  writ  of  privilefe 
can  therefore  issue,  no  plea  of  privilege  eubi 
received.  It  rests,  ami  must  rest  oo  the  ad- 
mission of  the  counsel  for  the  crown :  it  is  lai^ 
ly  before  us  upon  that  admission,  and  ve  an 
liound  to  determine  it.  In  tord  Coke  4  liMi 
!i4,  25,  after  shewing  that  privilege  of  poriii- 
ment  is  conusable  at  common  law,  he  uy^ 
that  privilege  generally  holds,  unlets  it  be  ii 
three  cases,  viz.  treason,  fek>ny,  and  the  peice. 


.  Wyndham, 
says  it  is  safer  to  set  forth  that  the  party  is 
charged  upon  oath,  but  that  is  not  necessary. 
Thus  stands  this  point  on  authorities.  The 
other  obiection  was,  that  the  libel  itself  ought 
to  have  been  set  forth  in  hac  verba ;  but  upon 
that  point  too,  we  are  all  of  opinion  lliat  the 
warrant  is  good.  It  was  ur(;ed,  that  the  spe- 
cific cause  of  detention  ought  to  be  stated  with 
certainty ;  and  therefore  if  a  man  be  corn- 


Lake,  9th  of  Hen.  6,  who  being  a  memkr'f 
servant,  and  taken  in  execution  for  debt,  «v 
delivered  by  the  privilege  of  the   Hoose  d 

,  Commons ;  the  book   adds,  (and  for  that  pur- 

•  pose  I  refer  to  it)  wherein  is  to  be  BOicd, 
that  there  is    no  cause   to  arrest  any  sack 

■  man,  but  for  treason,  fek>n]^,  and  the  peace. 

I  In  the  trial  of  the  Seven  Bishops,  thewoidi 
the  peace'  are  explained  to  mean  ^ibrIJ 


mitted  for  felony,  the  warrant  must  briefly  |  *  of  the  peace.'  In  the  case  of  the  Kiof;,v. 
mention  the  species  of  the  felony.  Now  the  ;  sir  Thomas  Culpepper,  reported  in  13  Mod. 
species  of  every  offence  must  be  collected  by  i  108,  lord  Holt  says,  that  whereas  it  is  slid 
the  magistrate  out  of  the  evidence ;    but  he  is    in  otir  books,  that  privilege  of  parliament  wai 


not  bound  to  set  forth  the  evidence :  he  is  an 
awerable  only  for  the  inference  he  deduces  from 
it.  As  to  a  libel,  the  evidence  is  partly  inter- 
nal and  partly  external.  The  paper  itself  may 
not  be  complete  and  conclusive  evidence ;  for 
it  may  be  dark  and  unintelligible  without  the 
innuendos,  which  are  the  external  evidence. 
There  is  no  other  name  but  that  of  libel  appli- 
cable to  the  offence  of  libelling ;  and  we  know 
the  offence  siiecifically  by  that  name,  as  we 
know  the  offeocts  of  horse-stealing,  forgery, 
&c.  by  the  names  which  the  law  has  annexed 
to  them.  But  two  reasons  were  nrged  why 
the  lav  [qu.  libel]  ought  to  be  stated.  First, 
it  was  said,  that  without  it  the  Court  cannot 


not  allowable  in  treason,  felony,  or  breach  of 
the  peace,  it  most  be  intended  where  sorelT 
of  the  peace  is  desired,  that  it  ahall  not  protect 
a  man  sgaiust  a  tupplicavU^  but  it  hokis  as  well 
in  case  of  indictment,  information  for  breach 
of  the  peace,  as  in  case  of  actions.  In  the 
case  of  lord  Tankerville  a  few  yean  afoy 
which,  though  not  reported  in  any  law  book,  ii 
upon  record  in  parliament,  it  was  held,  ibit 
bribery,  being  only  a  constructive,  and  notii 
actual  breach  of  the  peace,  sboold  not  oust  hi« 
of  his  privilege.  There  is  no  difference  be- 
tween the  two  bouses  of  parliament  in  isagt 
of  privilege.  The  statatet  of  18  and  13  Wi* 
3y  c.  3,  and  9  and  3  Ad.  c«  18,  tpeak  af  ibt 


90S] 


im  a  Hahea$  Corpus. 


JL  D.  iie$. 


[994 


SifilegHB  of  pMriiameDt  io  reference  not  to  one 
0090  in  particular,  but  to  both  Hoasea.  What 
kboo  ia  the  preaent  case  f  Mr.  Wilkes,  a  mem- 
bar  of  the  Houae  of  Commons,  is  committed 
fbr  beiDgf  the  author  and  publisher  of  ati 
nfiunoua  and  seditious  libel.  Is  a  libel  ipso 
f^eto  in  itself  an  actual  breach  of  the  peace  f 
Mr.  Dalton  m  bis  Justice  of  the  Peace,  fol; 
189,  delloea  a  libel  as  a  thing  tending  to  the 
>reech  of  the  peace.  In  air  Baptist  Uicka's 
saae.  Hob.  394,  it  is  called  a  pro^ocatiou  to  a 
ireach  of  the  peace.  In  Lev.  139,  the  King 
r.  Summers,  it  was  held  to  be  an  offence  coou* 
HiMe  before  justices,  because  it  tended  to  a 
ireach  of  the  peace.  In  Hawk.  PI.  Cor.  193, 
ibap.  73,  sect.  3,  it  is  called  a  thing  directly 
snding  to  a  breach  of  the  public  peace.  Now, 
hal  which  tends  only  to  the  breach  of  the 
Mace,  is  not  an  actual  breach  of  it,  is  too  plain  a 
ir»position  to  admit  of  argument.  But  if  it 
raa  admitted  that  a  libel  was  a  breach  of  the 
leaoe,  still  privilege  cannot  be  excluded,  unless 
t  requires  surety  of  the  peace ;  and  there  has 
«eo  no  precedent  butthatof  theSeren  Bishops 
ited  to  shew  that  sureties  of  the  peace  are 
cqoirable  from  a  libeller ;  and  as  to  the  opi- 
liuo  of  the  three  judges  in  that  case,  it  only 
ervea  to  ahew  the  miserable  state  of  justice  in 
hoae  days.  Allybone,  ooe  of  the  three,  was  a 
ifpd  and  protesse<l  Papist  ;*  Wright  and  Hol- 
sway,'  1  am  much  afraid,  were  placed  there 
In' doing  jobs;  and  Powell,  the  only  honest 
BSD  upon  the  bench,  gave  no  opinion  at  all. 
^erhauM  it  implies  an  absurdity  to  demand  sure- 
ieo  of  the  peace  from  a  libeMer.  However, 
rbat  was  done  in  the  case  of  the  Seven  Bishops, 
mm  Iwld  to  drny  was  law. 
Upon  the  whole,  though  it  should  be  ad- 
BiUeil,thatsuretieH  of  the  peace  are  requirable 
vol  BIr.  Wilkin,  Htill  his  priviletre  of  parlia- 
;  will  not  be  taken  away  till  sureties  have 
I  demanded  and  refused.    Let  him  be  dis- 


nUa  Judgment  for  Privilege  of  Parlia- 
ment in  the  case  of  Libel,  was  taken  into 
conaideration  by  both  Houses  at  their 
fint  mt^tiiiir  afterwards.  Tbe  discussion 
eudeil  in  a  joint  Vote,  by  which  it  was  re- 
•olted,  ««  That  the  Privilege  of  Parlia- 
ment doth  not  extond  to  the  cshc  of 
writing  and  publishing  Seditious  Libels, 
DOT  ought  tu  be  allowed  to  obstruct  the 
ordinary  course  of  the  laws  in  the  speedy 
■ud  effectual  prosecution  of  so  heinous  and 
dangerous  an  offence."  [See  New  Pari. 
Hist.  vol.  15,  p.  1362  ]  This  lUsolution 
waa  not  carried  without  a  very  strong  con- 
teat  Of  the  debates  on  this  occasion,  do 
regular  account  has  been  yet  published. 
But  the  Annual  Register  for  17  63,  gives  a 
general  view  of  the  chief  topics  on  each 
side;  and  the  Protest  made  against  the 
Iteaolution  in  the  House  of  Lords,  con- 
tains a  masterly  and  spirited  Argument 


•  Bam.  Hiat.  O. ' 
VOL.  XIX. 


'^45.    d  Mod.  239. 


•gainst  thoa  narrowing  the  Privilege  of 
Arliament.  Thia  Protest  will  appear  by 
the  following  Extract  from  the  Journal  of 
the  Lords.] 

EXTRICT  FROM  THE  JOURNAL  OF  THE  LoBOi. 

DU  Martisy  39  Novembris,  1763. 

The  order  of  the  day  for  resuming  the  ad- 
journed considenition  of  the  refiort  of  the  confer- 
ence with  the  Commons  of  Friday  last  being 
read; 

The  third  Resolution  of  the  Commons  waa 
read,  as  follows :  * 

**  Resolved,  by  the  Commona  in  parliament 
assembled, 

'*  That  privilege  of  parliament  doea  not 
extend  to  the  case  of  writing  and  publishing 
seditious  libels,  nor  ought  to  be  allowed  to  ob- 
atruct  the  ordinary  course  of  the  laws,  in  the 
speedy  and  effectual  proaecution  of  ao  heinoua 
and  dangerous  an  offence.*' 

And  it  beio^  moved  to  agree  with  the  Cook^ 
mons  in  the  said  resolution ; 

The  same  waa  olyected  to.  After  bng  de^r 
bate  thereupon. 

The  question  waa  put.  Whether  to  agre< 
with  the  Commons  in  the  said  Resolution  f 

It  was  resolved  in  the  affirmative. 
«( Dissentient' 

"  Because  we  cannot  hear  without  the  nt- 
most  concern  and  astonishment,  a  doctrine  ad« 
vanced  now,  for  the  first  time,  in  this  House, 
which  we  apprehend  to  be  new,  dangerous; 
and  unwarrautable,  viz.  that  the  personal  pri- 
vilege of  both  Houses  of  Parliament  has 
never  held,  and  ought  not  to  hold,  in  the  casa 
of  any  criminal  prosecution  whatsoever  ;  by 
which,  all  the  records  of  parliameut,  all  history, 
all  tbe  authorities  of  the  gravest  and  soberest 
judges,  are  entirely  rescindetl;  and  the  funda- 
mental principles  of  the  constitution,  with  re- 
gard to  the  independence  of  parliament,  tora 
uii  and  buried  under  the  ruina  of  our  most  esta- 
blished rights.  * 

*'  We  are  at  a  loss  to  conceive,  with  what 
view  such  a  sacrifice  should  be  proposed,  un- 
less to  amplify,  io  effect,  thejurisiliction  of  the 
inferior,  by  annihilating  the  ancient  immuni- 
ties of  this  superior  court. 

••  The  very  question  itself,  proposed  to  ua 
from  the  Commons,  and  now  agreed  to  by  the 
Lords,  from  the  letter  and  siiirit  of  it,  contra- 
dicts this  assertion ;  for,  wiiilht  it  only  nar- 
rows privilege  in  criminal  matters,  it  rsta- 
blishes  the  principle.  The  law  of  privilege, 
touching  imprisonment  of  the  persons  of  lords  of 
parliament,  as  stated  hy  the  two  standing  orders, 
declarev  generally,  that  no  lord  of  parliament, 
iiittiog  the  paHiauient,  or  within  the  usual 
times  of  privile<:|^e  of  parl.ament,  is  to  be  im- 
prisoned or  restrained,  without  sentence  or 
order  of  the  House,  unless  it  be  for  trcaxon  or 
itiony,  or  tor  refii]»irig  to  give  security  for  the 
l>eace,  and  refusal  to  pay  abedieuce  to  a  writ 
of  Habeas  Corpus. 
**  The  first  of  these  orders  was  made  afler 

38 


99S] 


5  GEORGE  UL 


Tkg  Case  ofJoim  WUkett  esq. 


[996 


long  consideratioo,  upon  «  dispute  with  the 
kiof^,  when  the  precedenU  of  both  Homes  htd 
been  fully  inspected,  commeoted  upon,  re- 
ported, and  entered  in  the  Journals,  and  after 
the  king's  counsel  had  been  heard.  It  was 
made  in  sober  times,  and  by  a  House  of  Peers, 
not  only  loyal,  but  devoted  to  the  crown  ;  and 
it  was  made  by  the  unanimous  consent  of  all, 
not  one  dissenting.  These  circumstances  of 
■olerooity,  deliberation,  and  unanimity,  are  so 
singular  and  extraordinary,  that  the  like  are 
scarce  to  be  found  in  any  instance  among  the 
records  of  parliament. 

**  When  the  two  cases  of  surety  for  the 
peace,  and  Habeas  Corpus,  come  to  be  well 
considered,  it  will  be  found  that  they  both 
breathe  the  same  spirit,  and  grow  oot  of  the 
iameprinciple. 

"  The  offences,  that  call  for  surety  and 
Habeas  Corpus,  are  both  cases  of  present  con- 
tinuing violence;  the  proceedings  in  both 
hare  the  same  end,  fiz.  to  reprtts  the  force, 
and  to  disarm  the  offender.  The  proceeding 
stops  in  both  when  that  end  is  attained  ;  the 
offence  is  not  prosecuted  or  punished  in  either ; 
the  necessity  is  equal  in  both,  and,  if  priri- 
lege  was  allowed  in  either,  so  long  as  the  ne- 
cessity lasts,  a  lord  of  parliament  would  enjoy 
a  mightier  prerogative  than  the  crown  itself  is 
btitled  to.  Lastly,  they  both  leave  the  prose- 
cution of  all  misdemeanors  still  onder  privi- 
lege, and  do  not  derogate  firom  that  great 
fundamental,  that  none  shall  be  arrested  in  the 
course  of  prosecution  for  any  crime  luder 
treason  and  felony. 

**  These  two  orders  comprise  the  whole  law  of 

Srivilege,  and  are  both  of  them  standing  or- 
ers,  and  consequently  the  fixed  laws  of  the 
House,  by  which  we  are  all  bound  until  they 
are  duly  repealed. 

*'  The  Resolution  of  the  other  House  now 
agreed  to,  is  a  direct  contradiction  to  the  rule 
of  parliamentary  privilege,  laid  down  in  the 
aforesaid  standing  orders,  both  in  letter  and 
spirit.  Before  the  reasons  are  stated,  it  will 
Im  proper  to  premise  two  observations. 

**  First,  that  in  all  cases  where  security  of 
the  peace  may  be  required,  the  lord  canuot  be 
committed  till  that  security  is  refused,  and  con- 
sequently the  magistrate  will  be  guilty  of  a 
breach  of  privilege,  if  be  commits  the  of- 
fender without  demanding  that  security. 

**  Secondly,  although  Uie  security  should  be 
refused,  yet,  if  the  party  is  committed  gene- 
rally, the  magistrate  is  guilty  of  a  breach  of 
privilege,  because  the  party  refusing  ought 
only  (o  be  committed  till  he  has  found  sureties ; 
whereas,  by  general  commitment,  he  is  held 
fast,  even  though  he  should  ^ve  sureties,  and 
can  only  be  discharged  by  giving  bail  for  his 
appearance. 

'M'bis  being  premised,  the  first  objectiqn  is 
to  the  generality  of  this  Resolution,  which,  as 
it  is  penned,  denies  the  privilege  to  the  sup- 
posed libeller,  uot  only  where  he  refuses  to 
give  sureties,  but  likewise  throughout  the 
whole  prosecution,  ifirom  the  begiiuuiig  to  the 


end ;  so  that,  althoogb  beaboiild  Sttbmit  to  bs 
bound,  be  may,  notwithstanding,  be  afterwards 
arrested,  tried,  convicted,  and  punished,  littiBg 
the  parliament,  and  without  leave  of.  tbe 
House,  wherein  tbe  law  of  privilege  is  fonda- 
mentally  misunderstood,  by  which  oo  coamnt- 
ment  wliataoever  is  tolented,  but  that  only 
which  is  made  upou^the  refusal  of  tbe  sureties, 
or  in  the  other  excepted  cases  of  treason  tr 
felony,  and  the  Habeas  Corpus. 

'*  if  privilege  will  not  bokl  tbrougliout  is 
the  case  of  a  seditiuus  libel,  it  must  be  be- 
cause that  offence  is  such  a  breach  of  tts 
peace,  for  which  sureties  nay  be  < 
and  if  it  be  so,  it  will  resdily  be  i 
the  case  comes  within  the  exception,  *  pcofidcd 
always,  that  sureties  have  been  icfussd,  asi 
that  the  party  is  committed  only  till  be  iball 
give  sureties.' 

«<  But  first,  this  offimceis  not  abreucb  oftbt 
peace ;  it  does  not  fall  within  any  defiailioB  sf 
a  breach  of  the  peace,  given  by  any  of  tbe  mi 
writers  upon  that  solgect ;  all  which  bicana^ 
from  menace  to  actual  wounding,  either  aloas 
or  with  a  multitude,  are  described  to  be  aels  sf 
violence  against  the  persons,  goods,  or  posses- 
sions, putting  the  suhiect  in  fear  by  Uovi, 
threats  or  gestures.  Nor  is  this  case  of  tbs 
libeller  ever  enumerated  iu  any  of  these  writos 
among  the  breaches  of  peace;  oo  the  contrsiy, 
it  is  always  described  ss  an  act  tending  to  ci* 
die,  provoke,  or  produce,  breaches  of  tbs 
peace ;  and  although  a  secretary  of  stale  Bay 
be  pleased  to  add  the  enflaming  epithets  sf 
treasonable,  traitorous,  or  seditious,  to  a  psrti- 
cular  paper,  yet  no  words  are  strong  enough  it 
alter  the  nature  of  things.  To  say  then,  ttal  s 
libel,  possibly  productive  of  such  a  oonseqocaer, 
is  the  very  consequence  so  produced,  is,  ia 
other  words,  to  declare,  that  the  cause  and  tbt 
effect  are  the  same  thing. 

*'  But,  secondly,  if  a  libel  could  possibly,  bj 
any  abuse  of  language,  or  has  any  where  beta 
caUed,  inadvertently,  a  breach  of  tbepesoe, 
there  is  not  the  least  colour  to  say,  that  tbs 
libeller  can  be  bound  to  give  sureties  for  tbt 
peace,  for  the  following  reasons : 

"  Because  none  can  be  so  bound,  unless  be  bt 
taken  in  the  actual  commitment  of  a  breach  of 
tbe  peace ;  striking,  or  putting  some  one  or 
more  of  his  majesty's  subjects  in  fear : 

"^ecause  there  is  uo  authority,  or  even  tm- 
bigoous  hint,  in  any  law-book,  that  he  may  bt 
so  bound: 

<*  Because  no  libeller,  in  fact,  was  ever  « 
bound  : 

"  Because  no  crown  lawyer,  in  the  most  dc^ 
potic  times,  ever  insisted  he  should  be  so  boosd, 
even  in  days  when  the  press  swarmed  with  tbs 
most  invenomed  and  virulent  libels,  and  wbcs 
the  prosecutions  raged  with  such  uncomraoa 
fury  against  this  species  of  offenders  \  wbes 
the  law  of  libels  was  ransacked  every  tens ; 
when  loss  of  ears,  perpetual  imprisonmcBl, 
banishment,  and  fines  of  ten  and  twcaty 
thousand  pounds,  were  the  commou  ytif 
moots  io  the  8ta^cbalDber  ^  aod  wba-tw 


D97]  m  a  Habeas  Cor 

mmwn  bail  assumet)  an  uncontroUble  autho* 
^fity  over  the  press. 

*^  TKirrtlyf  this  Reioltiiioa  does  not  only  in- 
fringe the  privilege  of  parliament^  hut  points  to 
■itie  f^ilratnt  of  the  pcrianai  hberty  of  e?ery 
imOQ  sobject  in  ihej^e  realms,  seeing  thai  it 
,  in  efTect,  atfirm,  that  all  men,  niihont 
prion,  may  be  bound  to  the  peace  for  thit 


By  this  iloctrine  every  man^s  lilierty,  pHvi- 
Irj^^etl  OS  well  as  uoprivireisfed,  is  aurrenderctl 
into  the  hands  of  a  secret»ry  of  state.  He  is 
hy  this  means  impowered,  in  the  tirst  instance, 
to  protmnnce  the  paper  to  be  a  neditious  libel ; 
n  matter  of  such  difficulty,  that  some  have 
pretended,  it  is  too  high  to  be  intrusted  to  a 
•pecial  jury  of  the  Brst  rank  and  condition  :  he 
m  to  undcrtitand,  and  decide  by  himself,  the 
tn^anintf  of  every  inueudo  :  he  is  to  deter- 
mine the  tendency  thereof,  and  brand  it  with 
tiig  fitvn  t^ttiitiets:  he  is  to  adjudge  the  party 

|«uil  ike  him  author  or  publisher,  as 

Ke  ^  ,,  i:  and  lastly,  he  is  to  give  sen- 
tence hy  committing'  the  party.  All  these  au- 
thorities are  ^tven  to  one  ^inj^le  nmi^islrate, 
yuassi>ired  by  counsel,  evidence^  or  jury,  in  a 
caf»e  where  the  law  says,  no  action  will  lie 
«garnst  him,  because  he  acts  in  the  capacity  of 
^judirr, 

**  from  what  has  been  oWrved,  it  appears  lo 

US,  that  the  exception  of  a  sedtlions  libel  from 

■■llplrge  i>  neither  founded  on  usage  or  written 

^^ftrdvots,  and  therefore  \\m  resolution  is  of 

Hl^rst  iitipresisiun  ;  nay,  it  is  not  only  a  new 

■law,  narrnwini^f  the  known  and  ancient  rule, 

>|»iit  it  is  likewise  a  law  ci  post  JactOf  pendente 

dile,  ct  fj  partCt  now   first  declui^d  to  meet 

fwilli  the  circunsstanci'S  of  a  particular  case  ; 

and   it  must  be  further  considered,  that  this 

House  i^  thus  called  upon  to  ^ive  a  sanction 

to  thr  ilrtrntitiiuiions  ot  llie  oilier,  wlio  have 

not  condi  Mc«»nded  to  confer  with  us  upon  this 

point  till  iliey  h;i(i  prejudged  it  themselves. 

*•  This  mHlM»il  of  relnxing  th»  rule  of  privi- 
I^igi',  '     r.iHr,  iM  prt'ttiDiiii  with  thisfurther 

linco,  that   It   ronder*!  the  rule  pre- 

can«PM>  unu  uiicertnin.  U  hit  can  fort^tel  where 
illie  HoiiMe  will  Mi»p»  whi^n  ihf  v  have,  by  one  in- 
fTing«'nient  of  their  owti  standing  orders,  made 
m  prec4Hknt,  whereon  future  iiifringeinpots 
ifnsy.  with  cquiil  reason,  he  fountled  i^  lluw 
ihaDl  ihestdijt^rt  Uc^ttble  lo  proceed  with  |^ff  ty 
Ibis  perilous  husiinc^s  ?  flow  can  the  judges 
on  these  or  the  like  questions,  if  privi" 
is  110  hiu;{er  Ur  lie  found  m  recortls  Ami 
nal«,  and  Rtamliiig  oidirii?  Upon  any  oc- 
lino  pnrilt'^ft  may  !>''  enlorvred,  nnd  no  cfjurt 
future,  wtlhoui  Ireoibhng, 
T  lo  drnv  it. 

"ice  tliia  rlTi'etnf  exchuling, 

iiioni  unc   buibjiile  oHirice 

'      i!i;it  it  wiil  iw  a  precc- 

ii'r,  upon  snuii;  to  in  re 

1    priTiitge  lufliling  in 

not  excepleil,  it  will,  at  la»t^  come 
Qooe  but  such  aa  are   ciprea&ly 
veil. 


A.  a  1765.  [998 

**  When  the  case  of  the  Habeai  Corpui  ia 
relied  upon,  as  a  precedent  to  enlbrce  the  de- 
claration»  the  ar^;un»ent  only  s)»evf-*i,  that  tha 
mischief  aforementioned  has  taken  place  al- 
ready, since  one  alteration,  thon^^h  a  very  just 
one,  not  at  all  applicable  to  the  present  ques- 
tion, is  produced  to  justify  another  thai  is  un- 
warrantable« 

"  But  it  is  strongly  objected,  tlmt  if  privi" 
lege  be  allowed  in  this  case,  a  lonl  of  parlia- 
ment might  endanger  the  cotistiiulion  6y  a 
continual  attack  of  luccessive  lil>elK ;  and  if 
such  a  person  should  be  sufTereil  to  e^ape, 
under  the  shelter  of  privilege,  wiih  nerpelual 
impunity f  all  government  would  be  over- 
turned ;  and  therefore  it  is  inexpedient  to  allow 
thfc  privilege  now,  when  the  time  of  prryilege, 
by  prorogations,  is  continued  for  ever,  without 
an  interval. 

**  This  objection  nhall  be  answered  in  two 
ways.  First,  if  inexpediency  is  to  destroy  per* 
aonal  privilege  in  this  cuseo'fa  seditious  libel, 
it  is  at  least  as  ineifpedieot^  that  other  great 
misdemeanors  sht^uld  stand  under  the  like  pro-- 
tectioo  of  privilege ;  neither  is  it  expedient^ 
that  the  smaller  otTpnces  slionld  be  exempt 
from  a  prosecution  in  the  person  of  a  lord  of 
parliament ;  so  that  if  thU  argument  of  inex- 
pediency is  to  prevail,  it  must  prevail  ihruugb* 
out,  and  subvert  the  whole  taw  ol  privilege  ia 
criminal  matters;  in  which  tneihod  of  reason- 
ing there  is  this  fault|  that  the  argument  proves 
too  much. 

**  If  this  inconvenience  be  imleed  grievous, 
the  fault  is  not  in  the  law  of  privilege,  but  tti 
the  change  of  times,  and  in  the  management 
of  prorogatiims  by  the  servants  of  the  crown, 
which  are  so  contrived,  as  not  to  leave  an  hour 
0|ien  for  justice.  Lpt  the  objection  neverthe- 
less be  allowed  in  its  utmost  extent,  and  thea 
compare  the  inexpediency  of  not  immediately 
prosecuting  on  one  side,  with  the  inexpediency 
oi'  stripping  the  poiliamenl  of  all  proteclioia 
from  privilege  on  the  other.  Unliappy  as  the 
option  is,  the  public  would  rather  wish  to  se« 
the  prosecution  for  cinmes  suspendetl,  than  the 
parhaincnt  totally  unprivileged  ;  all  hough, 
notwithstanding  this  pretended  inoouveiiience 
is  so  warmly  magnified  on  the  present  occnsion, 
we  are  not  apprised  that  any  such  incon- 
veoicnce  has  been  felt,  though  the  privilege 
has  been  enjoyed  time  immeiiioriaU 

**  Bat  the  second  and  l>est  attswer,  because 
it  removes  alt  pretence  of  grievance,  is  this,- 
that  this  House,  upon  com]ilaiiit  made,  has  the 
power  (which  il  will  exert  in  favour  of  justice) 
10  deliver  up  the  offt-uiler  lo  prosecution. 

■*  It  is  a  dishonourable  and  un  undeserved  icn- 
pntation  npon  the  Lnrds,  to  suppose,  even  in 
srt^Miineor,  tliat  tht*y  would  nourish  an  ira- 
pi  HIS  criminal  in  their  Iwisoms,  auain«it  the  call 
of  cilTendcd  justice,  and  the  demand  of  ^leir 
country. 

**  it"  is  true,  however,  and  rt  is  ho[)ed  that 
this  Hotine  will  always  «ee  (as  every  itiagis- 
trate  ought  that  do«s  not  betray  his  trutl)  that 
their  (u« tuber  ii  properly  aharged;  but  whea 


9S9] 


S<}£QRGE  III. 


The  Case  of  John  Wilkes^  esq. 


[1000 


Ihftt  groond  it  once  l«id,  tbey  wdakl  be 
ashamed  to  protect  the  offender  one  moment. 
Barely  this  trust  (which  has  never  yet  been 
•bused)  is  not  too  2  eat  to  be  reposed  in  the 
fiigb  Court  of  ParTianient !  while  it  is  lodged 
tbm,  the  pnblic  justice  is  in  safe  bands,  and 
the  privilege  untouched :  wheress,  on  the  con« 
trary ,  if  for  the  sake  of  coming  at  the  criminal 
at  once,  without  this  application  to  the  House, 
personal  privilege  is  taken  away,  not  only  the 
offender,  but  the  whole  parliament,  at  the  same 
time,  is  delivered  up  to  the  crown. 

**  It  is  not  to  be  conceived,  that  our  ancestors, 
when  they  framed  the  law  of  privilege,  would 
have  left  the  case  of  a  seditious  ViM  (as  it  w 
«alle«l)  the  only  unprivileged  misdemeanor. 
Whatever  else  they  had  given  up  to  the  crown, 
^hey  would  have  guarded  the  case  of  supposed 
libels  above  all  others  with  privilege,  as  being 
most  likely  to  be  abused  by  outrageous  and 
vindictive  prosecutions. 

*^  But  this  great  privilege  had  a  much  deeper 
reach.  It  was  wisely  planned,  and  hath  hi- 
therto, through  all  times,  been  resolutely 
maintained. 

**  It  was  not  made  to  screen  criminals,  but  to 
preserve  the  very  being  and  life  of  parliament ; 
for  when  our  ancestors  considered,  tliat  the  law 
had  lodged  the  great  powers  of  arrest,  indict* 
ment,  and  information,  in  the  crown,  tbey  saw 
the  parliament  would  be  undone,  if,  during  the 
time  of  privilege,  the  royal  process  should  be 
admitted  in  any  misdemeanor  whatsoever. 
Therefore  they  excepted  none.  Where  the 
abuse  of  power  would  be  fatal,  the  power 
ought  never  to  be  given ;  becaase  redress 
oomes  too  late. 

**  A  parliament  under  perpetual  terror  of  im- 
nrisonment  can  neither  be  free,  nor  bold,  nor 
noneMt ;  and  if  this  privilege  was  once  removed, 
the  roofit  important  question  might  he  irreco- 
Terahiy  lost,  or  carried  hy  a  sudden  irruption 
of  messengers,  let  loose  against  the  members 
half  an  hour  before  the  debate. 

**  Lastly,  as  it  has  already  been  observed,  the 
case  of  ^  uppuseil  libels  is,  of  all  others,  the  most 
dangerous  aud  alarming  to  be  left  open  to  pro- 
secution during  the  time  of  privilege. 

**  If  the  severity  of  the  law  touching  libels, 
as  it  hath  sometimes  been  laid  down,  he  duly 
weigli<'«l,  it  must  strike  both  Houses  of  Parlia- 
ment with  terror  and  dismay. 

"  The  repetition  of  a  libel,  the  delivery  of  it 
unrexd  to  another,  is  buid  to  be  a  publication  ; 
nay,  the  bare  possession  of  it  has  been  deemed 
criminal,  unless  it  is  immediately  destroyed,  or 
carrie<I  to  a  magistrate. 

**  Every  lord  of  parliament  then,  who  hath 
done  this,  who  is  talsel^  accused,  nay,  who  is, 
though  without  any  inlormation,  named  in  the 
secretary  of  slate's  warrant,  has  lost  his  prtvi- 
lege^y  this  resolution,  and  lies  at  the  mercy  of 
that  great  enemy  to  learning  and  liberty,  the 
messenger  of  the  press. 

**  For  these  aud  many  other  forcible  reasons, 
"we  hold  it  highly  unbecoming  the  dignity, 
gravity,  aad  wisdom  ol'tbe  Uouw  of  Feacay.an 


well  as  their  justice,  thus  ^icially  to  csphia 
away  and  diminish  the  privilege  of  their  per- 
sons, founded  in  the  wisdom  pf  agca,  dcdarid 
with  precision  in  our  staoding  order,  io  re> 
peatedly  confirmed,  and  hitherto  preaerrcd  ia- 
vioUble  by  the  spirit  of  onr  aaoestofs,  cslkd 
to  it  only  by  the  other  Hoose,  oo  a  parlioalir 
occasion,  and  to  serve  a  particiilar  parpsit, 
txpottfacto^  ex  parte^  et  pendente  /f<e  ia  Iht 


courts  below. 

>«  Temple, 

Bolton, 

Grafton, 

Comwallie, 

Portland, 

Bristol, 

I>evonshire, 

8carboroogb, 

0acre, 


Ahergavenay, 

Fred.  Litcfa.  Cor. 

jlshbamhaasp 

Foftescoa, 

Grantham, 

Walpole, 

Ponaonby, 

FolkesloM." 


As  to  Scotland,  Mr.  Hume,  1  Comment  75, 
(Trial  for  Crimes)  after  noticing  the  Resohi- 
tioos  of  the  two  Houses  of  Paruameot,  (May 
6,  Nov.  34,  S9, 1763,)  in  the  case  of  Wilkc% 
and  also  what  BUckstone  says,  (Coimn.  vsL  Iv 
p.  166)  proceeds: 

«(  I  doubt,  therefore,  whetbtr  this  pririkft 
have  not  received  too  broad  a  conatructiOB  with 
us,  on  three  several  occasions,  where  sack  s 
plea  has  been  moved.  In  the  process  Deeeaix 
ber  24  (31,)  1711,  at  instance  of  Alexasdff 
Doull  against  sir  James  Dunbar,  for  the  crimf 
of  oppromon,  molestation,  assaolt,  and  vieh- 
tion  of  tlie  privileges  of  a  royal  hurgh,  Iks 
Lords  gave  tnis  deliverance  *  In  respect  of  lbs 
above  mentioned  sir  James  Dunbar,  one  of  lbs 
pannels,  bis  privilege  as  a  member  of  the  HsasB 
of  Commons,  and  that  the  within  libel  w 
raised  and  executed  against  him  and  his  stf^ 
vants  within  named,  during  the  currency  of  hii 
said  privilege,  desert  the  diet  of  the  said  liM 
against  him,  the  said  sir  James,  and  agaiart 
Alexander  and  William  Sutherlamis,  his  SM"- 
vauts  ;  hut*  prejudice  to  the  pursuer  to  iowit 
in  a  new  libel,  and  prosecute  tlie  foresaiils  psr> 
sons,  for  the  crimes  within  roent  oned,  at  ssy 
other  lawful  time  as  accords.'  In  the  proesM 
also  against  sir  William  Gordon  of  Dalpboily» 
Feb  9,  1713,  tor  an  assault  aud  outrage,  to- 
cnmpanieil  with  the  violtnt  taking  ot'  certsia 
papers  (and  this  w»^  charged  as  amonnlisjrts 
a  robbery),  the  Court  declined  to  proceed  aotil 
the  pannel  should  judicially  wave  his  privdfjjt 
as  a  member  of  the  House  of  Commons; 
which  being  done,  the  trial  went  on. 

**  The  third  instance  was,  on  the  7th  of  Dt« 
cerober,  1767,  on  occasion  of  the  trial  of  Mr. 
Dempster,  a  member  of  the  House  of  Coai* 
moos,  for  bribinir  his  eiectorH;  and  here  the 
Court  sustained  his  privilejjre,  to  hinder  arrdl 
of  his  person,  or  any  pnicee<ling  in  the  trisL 
Bat  upon  appeal  to  the  House  of  Lords,  m 

*  See  the  *  Diversions  of  Puriey'  adl 
Jamie^'s  Etymologicai  Dictioiiary,  as  nfHh 
red  U>,  f  oL  10,  pp.  1007. 


1001] 


Action  of  False  Inqtrisonmeni. 


A.  D.  1765. 


[lOOJ 


•pioion  was  niirnified,  tbtt  this  ioterlocutor  of 
Ube  Court  of  Justiciary  was  wrong: ;  and  ao 
order  was  made  (for  tlie  appeal  was  not  dis* 
oosaed,  nor  any  jiultinnent  j^veii)  which  left  it 
open  to  tliem  to  re? iew  their  decision.  Accord- 
ingly t.  on  I  he  18th  of  March  1768,  in  respect  of 
this  oirder,  the  Court  of  Jtuiiciary  declared, 
*  That  the  said  interlocutor  shall  be  no  prece- 
Aeolto  any  future  case  of  the  like  nature,  and 
that  the  matter  shall  lie  open  to  the  considera- 
tioo  of  the  Court  upon  any  such  future  case,  in 
the  same  roanuer  as  if  the  said  interlocutor  had 
Aot  passed.'  Since  that  time,  there  has  not, 
however,  been  any  opportunity  of  re-considering 
this  question. 

«*  By  the  last  clause  of  the  <  Act  for  pre- 
Ycnting  wrongous  imprisonment,  and  against 
Bodiie  delays  in  trials,'  (6th  act  of  the  8ih 
•nd  9th  sessions  of  the  Ist  parliament  of  king 
William)  it  had  bfen  statute  and  ordained, 
that  BO  member  of  parliament  attending,  tball 


be  imprisoned  or  confined,  upon  any  account 
whatsomever,  durintr  a  sfsftion  of  parliament, 
without  a  warmi't  of  parliament,  reserving  to 
tlie  hiifh  c-onstahle  au«l  mtii  isclial  their  privileges 
ami  juriMlictions  in  the  iime  of  parliament  at 
formerly  ;  and  also  pniTidini;,  that  if  any 
member  shall  hap|»efi  t<i  couimit  a  capital 
crime,  or  if  tliere  lie  a  uiamtest  hazard  of  the 
I»eace,  any  magistrate  mny  aituck  for  securing 
of  the  person  or  the  peace,  and  deliver  the 
peiseii  to  the  custody  of  the  hi^h  constable, 
10  order  to  the  parliament's  cognition  the  next 
sederunt. 

**  But  at  the  Union,  this  ample  pro- 
tection came  to  be  restricted  to  the  narrower 
and  more  salutary  measure  of  the  English  pri- 
vilege." 

For  more  concerning  Privilege  of  Parliament, 
see  Brass  Crosby's  Case,  a.  d.  1770 ;  Richard 
Thompson's  Case,  toI.  S,  p.  1,  and  the  matter 
subjoined  to  that  Case. 


540.  Proceedings  on  Error  in  an  Action  of  False  Imprisonment  by 
Dryden  Leach,*  against  John  Money,  James  Watson, 
and  Robert  Blackmore,  three  of  the  King*s  Messengers, 
KingVBench,  Easter  Term,  5  George  III.  and  Michaelmas 
Term,  6  George  III.  a.  D.  1765. 


[Thcie  Proceedings,  though  in  the  case  of  a 
ctfil  action,  fully  come  within  the  idea  of 
a  State  Trial.  They  grew  out  of  the  prose- 
cations  for  the  printing  and  publishing  N^ 
45  of  the  political  paper  called  The  North 
BriloD,  and  involve  the  discussion  of  several 
^Dts  reUtive  to  matters  of  the  nsost  public 
natore,  namely,  the  magisterial  powers 
claimed  as  incident  to  the  office  of  Secretary 
•f  State,  the  Seizure  of  Papers,  and  the  Le- 
gality of  General  Warrants.  The  Case  is 
entirely  taken  from  Sir  James  Burrow's  Re- 
port.    See  3  Burr.  1692  and  1743.     Easter 

'  /TeuD,  Friday,  17  May,  1765.      HMrgrave.'} 

Easter  Term,  5  Geo,  3. 

Soon  after  the  Court  sat,  the  lord  chief  jofi- 
tfee  Pralt  eame  personally  into  court,  to  con- 
IhM  (ore  tenut)  bis  seal  put  to  a  Bill  of  Excep- 
liaoa  in  this  Case ;  pursuant  to  the  requisition 
Cftbe  Ibllowtng  Writ,  viz. 

*  George  the  third,  &cr— To  our  trusty  and 
«  well-bekived  Charles  Pratt,  knight,  our  chief 
« justice  of  the  bench,  greeting.— Whereas  we 

*  See  in  the  Caae  of  Brookshaw  v,  Hopkins 
frvported  LoffI,  235.  340)  the  distinction  be- 
tween acts  done  m  actual  execution  of  an  of- 
lee,  Md  nets  done  under  meHB  colour  and  pre- 


*  have  lately  been  informed  that  in  the  record 

<  and  process,  and  also  in  giving  of  judgment 

<  in  a  plaint  which  was  in  our  court  before  you 

*  and  vour  associates,  our  justices  of  the  said 

*  bench,  by  our  writ,  between  Dryden  Leach, 

*  and  John  Money,  James  Watson,  and  Robert 

*  Blackmore,  in  a  plea  of  trespass,  assault,  and 
'  iniprisonment,  manifest  error  hath  intervened, 

*  to  the  great  damage  of  the  said  John,  James, 
*'and  Robert ;    which  aaid  record  and  process, 

*  for  the  error  aforesaid,  we  have  caused  to  be 

*  brought  into  our  court  before  us ;  and  now,  on 

<  thebelialtofthesaid  John,  James,  and  Robert, 

*  we  are  informed,  in  our  said  court  before  us, 

*  that  at  the  trial  of  the  iMue  first  joined  be- 

*  tween  the  said  pnrtiea  in  the  plea  aforesaid, 

*  the  counsel,  learned  in  the  law,  of  the  aaid 

*  John,  James,  and  Robert,  alledged  on  their 

*  behalf  certain  Exceptions  to  the  opinion  then 
declared  snd  gi\en  by  you ;    snd  that   the 

*  said  £xce|>tions  v^ere  then  and  there  written 

*  in  a  certain  Bill,  to  which  you  put  your  seal, 

<  at  the  request  of  the  said  John,  James,  and 

*  Robert,  according  to  the  form  of  the  statute  in 

*  such  esse  msde  and  pmvided  ;  and  the  said 
'  John,  James,  and  Robert  have  brought  into 

*  our  court  before  us  the  said  Bill,  with  your 

*  seal  put  to  the  same,  as  it  is  said  ;  whereupOQ 

*  the  said  John,  James,  and  Robert  have  be- 
'  sought  us  to  do  what  further  should  seem 
'  meet  to  be  done  in  this  behalf,  according  to 

*  the  form  of  the  said  statute ;  and  forasmuch 

<  as  by  the  said  sutute  it  is  ordain^,  that  in 

<  inch  cue  the  jotlioc  whote  aeal  shoold  h« 


1003] 


5  GEORGE  III. 


Action  (tf  False  Impriionmetd'^ 


[1001 


*  put  to  such  exception  be  commanded  to  appear 

*  before  us  at  a  certain  day,  to  confess  or  den j 

*  his  seal ;   therefore  we  command  you  that 

*  you  personally  appear  before  us,  on  the  mor- 
« row  of  the  Ascension  of  our  Lord,  whereso- 

*  er er  we  shall  then,  be  in  England,  to  confess 

*  or  deny  the  seal  so  nut  tolhesaid  Bill  of  £z- 

*  ceptions  as  aforesaid  to  be  your  seal,  accdrd- 

*  inif  to  the  form  and  effect  of  the  said  statute ; 

*  and  that  you  bring  with  you,  at  the  same  time, 

*  this  writ.      Witness  William  lord  Mansfield, 

*  at  Westminster,  the  34th  day  of  April,  in  the 

*  fifth  year  of  our  reign.' 

N.  B.  The  Bill  of  Exceptions,  sealied  by 
lord  chief  justice  Pratt,  had  been  previously 
brought  into  this  court,  and  was  now  in  the 
bands  of  Mr.  Owen,  as  secondary  of  the  office 
of  pleas;  and  all  the  proceedings,  down  to  and 
including  the  abovementioned  writ,  were  en- 
tered upon  the  rolls  of  this  court. 

The  lord  chief  justice  Pratt  being  now  come 
into  this  court,  pursuant  to  the  command  con- 
tained in  (he  said  writ,  delivered  it  to  the  Lord 
Chief  Justice  of  this  court ;  Mr.  Owen,  at  the 
same  time,  delivering  the  original  Bill  of  Ex- 
ceptions into  lord  Mansfield's  hand.  Where- 
upon lord  MansfielJ,  shewing  to  lord  chief 
justice  Pratt  the  seal  thereto  affixed,  asked 
him,  Whether  that  was  his  lordship's  seal,  or 
not.  To  which  question  his  lordship  answering 
in  the  affirmative,  lord  Mansfield  re-  delivered 
the  Bill  of  Exceptions  to  Mr.  Owen;  at  the 
same  time  deliveriog  to  him  the  abovementioned 
Writ,  with  orders  '  that  it  should  be  filed.' 

Note — ^There  was  no  written  return  to  this 
Writ ;  but  Mr.  Owen  proposes  to  indorse  upon 
it_«  Sir  Charles  Pratt,  kniirht,  the  chief  jus- 

*  tice  within  named,  personally  appeared  in  the 

*  court  of  the  lord  the  king,  before  the  kintr 
*'  himself,  &c.  on  the  day  within  written  ;  and 
<  confesAeth  that  the  seal  put  to  the  Bill  of 

*  Exceptions  within  mentioned  is  his  seal.' 

Mich.  Term,  6  Geo.  3,  Roll  60. 

Errors  having  been  assigned  upon  the  Bill 
of  Exceptions  mentioned  above,  they  now  came 
on  to  be  argued. 

This  was  an  action  of  trespass  *  brought  in 
the  court  of  Common  Pleas  by  Dryden  Leach, 
against  three  king's  messengers,  John  Money, 
James  Watson,  and  Robert  Blackmore,  for 
breaking  and  entering  the  plaintiff's  house,  and 
imprisoning  him,  without  any  lawful  or  pro- 
bable cause ;  to  the  plaintiff's  damage  of 
2,000/. 

The  defendants  below  pleaded  two  pleas. 
The  first  was  the  general  issue,  *  Not  Guilty  *' 
on  which  issue  was  joined. 

The  other  plea  pleaded  (by  leave  of  the 
Court)  was  a  special  justification,  as  to  the 
breaking  and  entering  of  the  plaintiff's  dwell- 
ing-house, and  staying  and  continuing  therein 

«  See  the  549th  and  559th  rolls  of  C.  B.  of 
Mich,  term,  4  Geo.  3,  and  below  at  hirge. 


for  six  hours,  and  making  the  aasaok  n^ 
him,  and  seizing,  taking,  aiul  imprisoDing  hlfl^ 
and  keeping  and  detaining  him  io  priwD  for 
four  days:  as  to  all  which,  they  say,  that  be- 
fore the  commitment  of  the  supposed  trespaa, 
viz.  on  19th  April  1763,  the  kin^  made  a 
speech  from  the  throne,  &e.  in  which  apeaeb 
was  contained  the  following  dedaratioo,  te. 
&c.  That  on  the  23d  April  1763,  a  oertM 
seditioas  and  scandalous  libel  or  oompositiii^ 
intitled, «« The  North  Briton,  N*  45,'*  was  w- 
lawfully  and  seditiously  composed,  printed  asd 
published,  concerning  the  king  and  bis  ssii 
speech  ;  in  which  libel  were  contained,  te. 
&c.  &c.  That  the  earl  of  Halifax  was  then  set 
of  the  privy  council,  and  one  of  bis  nn^lesto's 
principal  becretaries  of  state;  and  that  ianr- 
mation  was  given  to  him  of  the  said  publieslisa 
of  the  aforesaid  libel ;  and  the  said  libel  wsi 
then  shewn  and  produced  to  the  said  earl ;  sad 
he  thereupon  in  due  manner  issued  his  Wamat 
in  writing  under  his  hand  and  seal,  directed  ts 
Nathan  Carrington  and  these  three  defendaalSi 
who  were  then  four  of  his  majesty's  messen- 
gers in  ordinary  ;  by  which  warrant,  the  nil 
earl  did  in  hie  majesty's  name  authorize  an! 
require  them,  taking  a  constable  to  their  as- 
sistance, to  make  strict  and  diligent  search  ftr 
the  said  authors,  printers  and  publishers  of  tbs 
aforesaid  seditious  libel,  intitled,  **  The  Nsitk 
Briton,  N*i5,  April  the  33d,  1763  ;"  andthesi 
or  any  of  them  having  found,  to  apprehend  aad 
seize,  together  with  their  papers,  and  to  brisg 
in  safe  custody  before  the  said  earl,  to  be  ea- 
mined  concerning  the  premisses,  and  to  be  far* 
tber  dealt  with  according  to  law :  in  the  dss 
execution  whereof,  all  mayors,  sheriffs,  iostises 
of  the  peace,  constables,  and  all  others  his  sud 
majesty's  messengers,  officers  civil  and  mili- 
tary, and  loving  subjects  whom  it  might  oos- 
cern,  were  to  be  aiding  and  assisting  to  tbta 
the  said  Nathan  Carriny^on,  John  Mooejr, 
James  Watson,  and  Robert  Blackmore,  ai 
there  should  be  occasion.  Thpy  further  sty, 
that  for  forty -four  weeks  and  upwards  before 
the  issuing  of  the  said  warrant,  certain  weekly 
compositions,  intitled,  "The North  Britoo,"aad 
respectively  numbered  iu  a  progressive  order, 
had  been  printed  and  published  on  Saturday  ia 
every  week  ;  and  that  the  said  seditious  libel, 
intitled, «'  The  North  Briton,  N""  45,  Saturday 
April  the  23(1,  1763,"  was  one  of  the  saM 
weekly  compositions.  They  say  that  the 
plaintiff  followed  and  exercised  the  art  and  bu- 
siness of  a  printer;  and  Hid  in  fact  print  and 
cause  to  be  printed  one  of  the  said  weekly  cooi- 
positions,  intitle<l,  **  Tlie  North  Briton;"  IS 
wit,  the  North  Briton,  N*"  S6,  and  that  ate 
the  issuing  of  the  al'oresaid  warrant,  and  I 
the  committing  of  the  said  supposed  tre 
to  wit,  on  the  37th  of  April,  1763,  informaiien 
was  ^iven  to  them  the  defendants,  "  That  tbs 
said  Dryden  Leach  and  his  servants  were  tbs 
printers  of  the  aforesaid  seditious  libel,  intitlcdi 
The  North  Bnton  N"  45,  Saturday  April  lbs 
23d,  1763."  Wherefore  the  defendants,  bsi^f 
his  majesty's  messenger!  in  ordipvy  aaafiKi" 


1005]  LmcH  v.  Three  of  the  Ktng't  Meuengers.        A.  D.  1765. 


[1000 


•aid,  look  (o  their  assistance  a  certain  constable, 
to  nit,  one  Thomas  FreeiTian,  who  was  iheii  a 
constable  oflhe  parigli  of  Si.  Martraret,  West- 
Iiiiiist^r,  m  the  caujily  of  !^]i(]dles€X,  to  aid 
them  in  the  ex  ecu  lion  oC  the  warrant ;  and,  to- 
getber  iffith  tlie&aid  constable,  entered  into  the 
aforesaid  dwellhj^-huusE  of  the  saiU  Drytlen 
Leftcb,  in  whicli  the  suid  Dr^'den  Leach  car- 
ried on  his  aforesaid  business  of  a  printer,  the 
door  thereof  heing^  then  open,  to  search  for  the 
^rioters  of  the  s»iil  seditious  litiel,  in  order  to 
carry  them  before  the  said  earl  of  Halifjix,  to 
be  examined  coucernieg  the  same  :  and  there- 
upon, tlie  said  delend^nls,  together  with  the 
constable  aforesaid,  did  then  and  there  tiod, 
within  the  same  honse,  a  newly -printed  copy 
of  one  of  the  said  weekly  compositions,  intitted, 
•»  The  North  Briton,'^  and  also  an  unlinished 
Copy  of  part  of  another  of  the  said  comfiosilion^ 
then  also  nev%ly  printed,  antl  which  said  newly 
jirintetl  copies  were  port  of  a  new  edition,  which 
tlie  said  Dryden  Leach  and  his  serf  aota  were 
^Ihcn  and  there  re-printlno^,  of  the  aforesaid 
weekly  compositions.  Whereupon  the  defen- 
dants^ together  with  the  constable  abovenamed, 
did  gently  lay  their  hatnls  on  the  said  Dry  den 
Leach,  and  seized  and  took  him  into  their  cus- 
tody, in  order  to  brin^^  hijn  helore  the  said  earl  of 
Halifax,  to  be  examined  concerning  the  said  netti- 
tious  libel ;  and  in  so  searching  for  the  printers 
#ft'  the  seditious  libel,  and  seizing  and  taking  the 
•aid  Dry  den  as  aforesaid,  did  then  and  there  ne- 
cesinrily  slay  and  continue  in  the  said  house  of 
the  said  Dry  den  lor  the  space  of  six  hours, 
part  of  the  time  in  the  declaration  tnentioned. 
And  because  the  said  earl  of  Ho  hi  ax  was,  dur- 
ing all  the  said  space  of  four  days,  part  of  the 
•foresaid  five  days  in  tlie  said  declaration  men- 
tioaed,  etnphiyed  in  other  buniness  belnoging"  to 
llis  saiil  office  of  secretary  of  stale,  so  that  the 
{•aid  Dryden  Lead)  conhl  not  then  or  during 
file  said  four  days  be  brought  before  the  said 
•arl  for  the  purpose  aforesaid,  they  the  said 
ttefendanL^,  tO|fcther  with  the  constable  afore- 
said, did  keep  and  detain  the  said  Dryden 
Leach  in  their  custody  for  the  said  space  of 
fiitir  days,  part  of  the  said  time  in  the  declara* 
&IOD  ineuiiooed,  in  oriler  to  carry  him  before 
tbe  said  earl  of  Halifax  for  the  purpose  afore 
■aid,  Tbey  further  say,  that  at  the  end  of  the 
•foresaid  tour  rlays,  and  not  belbre,  upon  the 
examination  of  the  said  Dryden  Leach  and 
certain  other  persons  who  were  then  and  there 
exaanoed  conctrnini^  the  premisses,  it  appear 
ed  to  the  said  earl  of  Halifax,  **  that  the  said 
0ry.den  Leach  did  not  print  the  said  seditious 
libel  in  titled,  The  North  Briton,  N"  46,  JJsatur 
flay,  April  tlie  23d,  1763:"  and  thereupon,  the 
•aid  deleoilanls,  by  the  command  of  the  said 
earl  of  Halilax,  did  then  and  there  release  tlie 
id  Orydtn  Leach  out  of  their  custody.,  ahd 
(Uschur^red  and  set  him  free  from  that  impri- 
•ooiiient.  Which  are  the  same  breakings  and 
iteriug  of  the  aforesaid  dwetliDt^-bouseof  the 
id  Dryden  Leach,  in  the  declaration  men- 
tiaoed,  m  which,  (!kc.  and  stayini^  and  eoittiuu- 
iii^  iberein  for  the  space  of^iX  bouri,  |iart  of 


the  time  in  the  tame  declarattoo  mentioned ; 
and  also  an  to  the  making  of  the  aforesaid  as- 
satilt  upon  I  he  said  Dryden  Leach,  and  seizing, 
taking  and  impnsoniu>4:  of  the  said  Drydea 
Lenci),  and  dutainin^  him  in  prison  for  the 
apace  of  four  days,  |iart  of  the  said  time  in  the 
said  dir-claration  mentioned,  above  su[ipo$€d  to 
have  been  dime  by  the  delendantSf  whereof  the 
said  Dryden  hath  above  complaintd  against 
them.  And  this  they  are  ready  to  verily. 
Wherefore  they  pray  judgment,  if  the  said 
Dryden  ou|rht  to  have  or  maintain  his  afore- 
sai<l  action  thereof  against  them^  Sec. 

The  plaintiff  replied^  as  to  the  said  plea  in 
bar  as  to  the  breakinrr  and  enterincr  the  dwell- 
iog-'house^  and  slaying  and  continuing'  thera 
six  hours  (part  of  the  time  in  the  declaration 
Dieatinoed),  and  also  as  to  the  making  of  iha 
assault  upon  him,  and  seizingi  takin<r  and  im* 
prisoning  of  him,  and  keeping  ortd  detaining 
him  in  prison  for  four  days  (part  of  the  lime  in 
the  declaration  mentioned);  thai  the  delen- 
dantS}  of  their  own  wrong  and  without  the 
cause  by  them  in  their  plea  alleged,  broke  and 
entered  his  dwelling-house,  and  slaid  and  con- 
tinued therein  for  six  hours,  and  made  an  as- 
sault upon  him,  and  seized,  look  and  imprison- 
ed him,  and  kept  and  detained  him  in  prison 
for  the  four  days  in  the  plea  mentioned  (pari  of 
the  time  in  the  declaration  mentioned),  in 
manner  and  form  as  he  has  above  complained 
against  them.    And  upon  this  issue  was  joined. 

The  cause  came  on  to  be  tried  before  lord 
chief  justice  Pratt,  on  the  10th  of  December 
1765,  at  Guildhall :  and  the  jury  found  a  ver- 
dict for  the  plain  tilt*  upon  both  issuer  ;  and  gave 
him  damages  4001.  besides  his  costs  and 
charges,  &c.  On  the  16th  of  June  1764, 
judgment  was  signed  for  the  plaintilf,  for  400(» 
damages^  and  51/'  Itis,  ^d.  costs. 

At  the  trial,  a  bill  of  exceptions  was  tendered 
and  received ;  which  stated  tlie  issues,  the 
coming  on  to  trial,  &c.  and  tlie  evidence,  tind 
describeil  a  printed  paper,  intitleil,  ^  The  North 
Briton,  >!**  45,'  and  the  information  given 
thereof  to  the  secretary  of  state,  and  his  war- 
rant to  the  defendants  below,  together  with 
another  king's  messenger,  Nathan  Carrington  ; 
and  what  Mr.  Carrington  had  been  told  of  Mr. 
Leaches  being  the  printer  of  it ;  and  their  there- 
opon  entering  his  liouie,  and  finding  some  of 
the  other  numbers  of  the  same  paper  newly 
printed  by  him  ;  and  their  ibereitpon  lakiag 
lum  into  cuitody,  in  order  to  carry  him  before 
the  earl  of  Halifax,  one  of  Iris  majesty's  prin- 
cipal secretaries  of  state  ;  and  that  be,  appear- 
in  (g  not  to  be  either  author,  printer  or  pidilisher 
of  the  said  paper,  called,  *  The  North  Brilon, 
N*  45,*  was  dii5 charged  by  them,  by  the  earl's 
order,  without  being  ever  carried  before  him. 
Tbey  say,  that  their  evidence  inliiled  thetn  ta 
the  benefit  of  tlie  statute  of  24  George  %  c*  44. 
Though  it  was  denied  by  the  counnel  for  the 
pi  at  nil  ff  Leach,  that  either  they  orthesecreUry 
of  state  himself  were  within  that  stutnte,  or 
tboae  of  7  Jac.  I,  o.  5,  or  St  Jac.  1,  c,  l!2, 
(the  former  of  wbich,  being  only  tem|iorarjr» 


1007] 


S  GEORGE  III. 


Action  ^  False  Imprisonment-^ 


[1008 


wu  made  perpetual  by  the  latter,  and  by  which 
liberty  ia  gireo  to  justices  of  peace  aod  all 
Others  actiiiif  under  their  command  *  to  plead 

*  the  general  issue,  and  give  the  special  matter 

*  in  evidence.') 

That  the  Chief  Justice  of  the  Common  Pleas 
was  of  opinion,  *that  their  evidence  was  not 

*  sufficient  to  bar  the  plaintiflf  of  his  action ;' 
whereas,  the  bill  ef  exceptiens  insut  *  that  it 
was. 

This  bill  of  exceptions  hang  sealed,  and  the 
seal  acknowledged,  as  is  before-mentioned,  the 
defendants  beiow  assign  errors :  and  a  joinder 
in  error  was  put  in  by  the  plaintiff  Leach. 

The  assignment  of  errors  was  to  the  follow- 
ing effect:  (It  may  be  seen  at  large,  in  the 
60th  roll  of  Easter  term,  5  Geo.  S,  B.  R.) 

The  defendants  come,  on  Wednesday  next 
after  fifteen  days  of  Easter,  4  Geo.  3,  before 
our  lord  the  king  at  Westminster,  and  say, 
That  at  the  trial,  their  counsel  proposed  excep- 
tions to  the  opinion  of  the  lord  chief  justice 
Pratt ;  which  exceptions  were  written  in  a  bill, 
and  sealed  bv  the  Chief  Justice:  which  bill  of 
exceptions  the  detendants  now  bring  into  this 
court,  and  pray  a  writ  to  the  Chief  Justice,  to 
confess  or  deny  liia  seal ;  which  writ  is  granted 
to  them,  returnable  on  the  morrow  of  the  As- 
cension. At  which  day,  before  our  lord  the 
king  at  Westminster,  come  the  defendants  in 
their  proper  person,  and  the  said  Chief  Justice 
of  the  Common  Pleas  likewise  in  his  proper 
person,  and  acknowledges  his  seal  put  lo  the 
said  bill  of  exceptions.  [The  form  and  cere- 
mony of  his  doing  this  may  be  seen  in  page 
1003.]  Then  they  set  out  the  bill  of  excep- 
tions, verbatim^  *  Be  it  remembered,'  &c.'  It 
recites  all  the  proceedings  particularly  and  mi- 
nutely, from  the  wety  beginning  to  the  end, 
concluding  wiih  the  verdict  of  the  jury :  which 
it  would  be  tedious  to  repeat,  as  they  have  been 
already  sufHciently  specified.  (They  are  en- 
tered upon  tlie  rolls  549  and  550  of  the  Court 
of  Common  Pleas,  in  Michaelmas  terra,  4  Geo. 
;i).  The  defendants  (now  become  plaintiffst  in 
error)  then  allege,  (in  their  said  bill  of  excep- 
tioDii)  that  upou  the  trial,  the  counsel  for  the 
plaintiff  Leach,  in  order  to  prove  the  defen- 
dants guilty  of  the  trespass,  gave  in  evidence, 
"  that  on  the  2dth  of  April  1763,  the  defeo- 


>I*  45,'  &c.  was  printed  and  pobKsbcd ;  and 
that  the  same  contained  the  teteral  matters 
set  forth  in  their  said  aecood  plea:'*  audit 
was  proved  on  their  behalf,  **  tfiat  the  earl  af 
Halitiuc  was,  all  that  time,  oneof  hia  majesty's 
principal  secretaries  of  state,  and  one  of  the 
privy  council ;  and  that  information  was  gives 
to  him  of  the  said  publicntion  of  the  abova* 
mentioned    paper;    and  the  same  was  th«i 
shewn  to  him;  and  that  thereupon  the  ssii 
earl  issued  his  warrant  in  writing,  under  hit 
hand  and  seal,  directed  to  Nathan  Carringtsa 
and  the  defendants,  who  were  then  four  of  kii 
majesty's    messengers    in    ordinary.*'^   And 
their  cnunael  then  produced  and  gave  in  eti- 
dence  the  warrant  aforesaid,  which  was  to  the 
words  and  figures  following,  that  is  to  say, 
"  Oeorge  Montague  Dunk,  earl  of  BaliWx, 
viscount  Sunbury,  and  baron  Halifax,  oneef 
the  lords  of  his  miyesty's  nM»t  bonouraUs 
privy  council,  lieuteqant-general  of  his  bs« 
jesty's  forces,  and  principal  secretary  of  stalc^ 
&c. — ^These  are  in  his  miyesty 'a  name  to  aa« 
thorize  and  require  you,  taking  a  countable  to 
your  assistance,  to  make  atrict  and  dilimat 
search  for  the  authors,  printeni  and  puUium 
of  a  seditious  and  treasonable  paper,  intitisi, 
« The  North  Briton,  N*"  45.    Saturday  Apiil 
93,  1763,  printed  for  G.  Kearaly  in  Lndgrif 
Street,  London ;'  and  them  or  any  of  thm 
having  found,  to  apprehend  and  seise,  lagetbcr 
with  their  papers,  and  to  bring  in  aafe  custsdy 
before  me,  to  be  examined  concerning  tM 
premuea,  and  further  dealt  with  aocwpfagto 
law.      In   the   due    execution  whcnof,  si 
mayors,  sheriffs,  justice*  of  the  peace,  eoa- 
stablea,  and  all  others  his  majesty's  offieof 
civil  and  military,  and  loving  subjects  wbosiit 
may  concern,  are  lo  be  aiding  and  assutiog  to 
you,  as  there  shall  be  occasion.     And  for  jrosr 
so  doinjjf,  this  aliall  l>e  your  Warrant.    Giwa 
at  8t.  James's,  the  26ih  day  of  April  1763/0 
the  third  year  of  his  uiaj«sty'H  reign.    Duok 
Halifax.     To  Nathan  Carriiiu'tou,  John  Moocji 
James  Watson,  and  Robert  Black  more,  four  of 
his  majesty's  me&seotfers  in  ordinary."    Asrf 
it  was  fanLer  proved  on  behalf  of  the  said  de- 
fendants, «*  that  several  of  the  like  wtrruilf 
had  been  granted,  at  different  times,  from  ibo 
time  of  the  Revolution  to  the  present  time,  ky 


dauts  entered  the  plaintiti^'s  duelling- house,  {  the  principal  secretaries  of  state,  and  had ticca 

aearched  it,  and  continued  in  it  four  hours ;  |  executed  by  the  messengers  in  ordinary  for  ibo 

aeized   and   look   Leach    into   their  custody  i  lime  being ;  and  that  the  paper  iu  the  ssi^ 

against  his  will  and   consent;   and  kept  and  \  warrant  described  was  the  said  paper  so  iiriaud 

detained  him  in  their  custody  against  his  w  ill  ;  and  published  as  aforesaid  ;  and  ihat  the  war* 

and  consent  for  four  days:*'   which  was  all  •  rant  aforesaid,  before  the  committing  oftbo 

the  trespass,  assault  and'  imprisonment  com-  ^  suppo8e<l  trespass,  to  wit,  on  the  26Ui  dav  of 

mitted   by  the  defendants,  or  any   of  them.  April  aforesaid,  in  the  year  of  our  Lord  1763, 

Whereupon  their  counsel,  in  orde'r  to  bar  the  !  was  delivered  to  the  defendants,   to  be  eie- 


aaid  action,  and  to  acquit  them  thereof  under  the 
general  issue  above  pleaded,  gave  in  evidence 
and  proved,  **  That  t>efore  the  comniiiting  of 
the  trespass,  the  kint;  made  a  s|>eech  fmin  the 
throne,  6ic.  containing  the  several  expressions 
stated  in  the  second  plea  of  the  defenduuiN ; 


cutetl  ;"  and,  *'  that  they  were  then  three  rf 
his  majesty's  messengers  in  ordinary,  aoii  slii 
are  so/'  it  was  also  proved,  on  their  behalC 
that  for  forty  weeks  and  upwards  next  h»An 
the  issuing  of  the  aforesaid  warrant,  ccrtaii 
weekly  compositions,   intitletl,    *  The   North 


and  that  afWrwards  and  before  the  suitposed  '  Briton,'  had  been  printed  and  published  m 
llMspaas,  a  paper,  iatiUed,  <  The  North  Briton,  I  Satarday  on  eTcry  week ;  and  that  the  afcf^ 


1009]  Leach  V.  Three  o/the  King^s  Messengert.  A.  D.  1T55» 


[low 


said    paper,    iotitled,     *  The     Norlh    Briton » 

T»J°  45,  Saturday  A[m\  23,  1763,'  descrlbeiJ 
ia  the  saiil  ivarruat,  beiti|/  one  of  tUe  said 
Yve^kly  compa^ititJDS,  wnn  printet)  anil  pub* 
JiBhed  bt'rore  ibe  tfSiiiiinLf  olllie  Kfiitj  wuiratM,  to 
wit,  nil  Uie  23d  day  of  April  1703 ;  ^)^il  (1ml 
^aHer  the  issiiinjjf  of  tlie  alHive  iDiMilioiteil  Avar- 
I'uuT,  ai)il  btfore  ihe  coinmitling'  of  tlie  said 
supposed  trespiiMij,  (o  ivif,  on  Ihe  2Btli  day  of 
April,  iti  tlie  year  &ff>resuid,  the  defeudants 
were  inf-orriii-d  liy  Niiiliau  CarringlOD,  one 
Other  ol  the  [ne&sei)|r«:ia  in  the  said  vrarraot 
nariird,  and  tmt*  of  the  persons  to  whom  the 
saiil  narruni  \va<k  directed,  that  from  the  infor' 
inalion  he  liad  receiv^di  be  vsun  of  opiuioD^  that 
llie^aid  Dry  duo  L<"dch,  who  iheu  and  long  be- 
foi'e  viii^,  und  still  is  a  printer  in  the  city  uf 
I^ndtiu  aforesaid,  was  the  printer  of  Ibe  said 
%veekly  touiposkions,  ioiiiled,  '  The  North 
Dritoo  I*  Irir  that  he  the  suid  Carringtoti  had 
beeti  iiifurnted  that  one  I\Lr.  Wilkesi  a  person 
Slippered  to  be  the  auth'tr  of  the  smil  wet'kly 
compo^iiiuns,  iiiid  b^eti  see^  frequently  to  go  into 
the  said  Mr.  Leaches  house ;  atid  that  an  old 
priuter^  uhoite  iiume  he  the  Huid  Carrin^on  did 
not  mention  to  the  drfinidutit;!,  had  told  bioif 
that  the  sianl  Mr.  Learh  \vas  the  priuter  of  the 
Mid  composEtjiMJs ;  and  that  thereupou  the  de- 
leudaiits  iuok  to  their  assistance  a  constable, 
and  uiili  the  cooiitabie  entered  Leaches  dwell- 
itifi^-luHise  (the  door  beiu^  open)  to  searcli  for 
Ibe  &aid  Leneh  and  his  hook;}  and  paperH  ;  and 
to  brttv^  ill  in,  toM>eiher  i^itb  his  boukei  auil 
pajH'rs,  in  sale  custoily,  before  the  Bait!  earl  ol 
Halitiix,  to  lie  exauiined  coiiceruiiii;  the  pre- 
tnisses,  and  lo  ht^  foriher  dealt  with  accuidiiig- 
to  law  ;  and  upon  that  occasion  did  search  the 
Sttid  hou^e,  aod  necesiiurily  continued  therein 
for  the  saiil  space  lour  Imurfi.*'  And  it  was 
further  given  in  evidence  and  proved,  on  the 
pari  of  iliLt  said  detendiinls,  •*  That  upon  that 
search,  the  deferidHnt^i  did  tind  Lea^li  in  Uie 
ftslit  boose,  and  did  also  then  titid  a  newly- 
prMJted  sheet,  contajoing^  a  copy  of  one  ff  the 
saifl  wet'kly  compositions,  tntiiled^  *  TIte  Norlh 
Buton,  N"  i,*  and  pari  ut  a  copy  of  ano- 
ther of  the  sitid  weekly  conipob'tlioni,  iniitknl, 
•  TtiH  North  BritoOj  N"*  9,'  which  sheet  was 
printed  by  ibe  said  Dryilen  Leuch.'*  And  it 
was  rujtiier  proved,  **  that  the  said  Dryden 
I>euch  did  aliio  print  one  of  the  said  weekly 
ctiin|H»siaiuis,  inlitled,  ^  The  North  Briton, 
N"  26.*^  Ami  the  ilel'endauis,  t*iih  the  assisl- 
mnce  of  the  ci>nS)table,  did  seize  and  take  into 
their  custody  the  siiid  Dryden  Leach,  in  order 
to  brioif  him  in  safe  custody  before  the  said  earl 
of  i^ljihlttX,  to  be  e^eamiued  concernin|^  the 
preuiisNea  ;  and  on  thai  oectiMon  ilhl  k^p  and 
detain  htm  in  their  custody  for  the  spare  of 
four  dius  ;  ai  the  end  of  which  time,  it  ap- 
peariiii^  tty  the  exuiuinaiioos  of  divers  persons 
tbeo  taken,  louchio^  (he  author,  printer  and 
publisher  of  the  »aid  paper,  that  Ihe  !<aid 
brydeo  l*each  was  not  ihe  author,  printer  nr 
pubb^ber  tbcreitf,  the  defendant s,  by  the  coui> 
m»nd  of  the  satd  ear]  of  iialitajCt  released  and 
tdischur^ed  liicn  from  that  impritODtnent :  bttt 
VOL,  MX. 


the  said  Dryden  Leach  was  never  carried  be^ 

fore  or  examined  by  the  naid  earl  of  Halifax,. 
And  that  the  euterio|^  the  house  of  the  Baid|l 
Dry  den  Leiich,  and  searcbiuj^  the  aame,  ond  { 
lakincr  into  and  detaining  in  tlieir  ciiiitody  him 
ibe  hM  Dryden  Leach  in  ibe  manner  and  on 
the  occasion  herein  before  stated,   were    th« 
whole  of  the  irespasji,  assault  and  imprison^ 
menl,     committed    by    the    said    delendants,  J 
or  any  of  them***     But  it  was  proved  on  th« 
part  of  the  sui4  Dryden  Leach,  "  that  lie  was 
not  Ihe  author,  printer,  or  publiiiber  of  itie  said, 
piiper,  intitled^  *  The  North  Briton,  N"  45.'  itt 
the  said  ivarrant  mentioned,  nor  of  any  other 
numbers  of  the  said  weekly  composiiiooSp  ex* 
rept  as  before  stated.^'    VV  hereupon  Ihe  cotiruieL  i 
(w  Ihe  defendants  insisted  before  ihe  said  ohief  j 
justice,  that  the  said  several  matters  so  pro* 
duced  and  given  in  evidence  on  their  part  as 
aforesaid,  were  sufEcient,  and  oni^hl  to  tje  ad* 
uiitted  and  allowed  as  decisive  evidence  to  eti- 
LLiJe  them  to  ibe  benetit  of  the  atatnte  of  24  J 
Geo.  5,  intkled,  **  An  Act  for  rendering  justices] 
of  the  peace  more  safe  in  the  execution  of  their 
offic ',  and   for   indermnfyioi;   constables   and  ( 
others  aetiojiT  in  obetUence  lo  their  warrants;" 
and    that    therefore    the   said   Drv den  Leach  < 
ou^ht  tu  be  barred  of  biii  iiforesuid  action,  and  ! 
the  said  delendants  acquitted    thereof.       And  I 
thereupon  ibe  «aid  deteMdauls,  by  their  coun-  I 
sel  aforei^uid,  did  ilteo*  and  there  pray  of  the  | 
feaid  chiel  ju!»tice  to  admit  and  alloiv  the  said.  I 
Jiiutters  and  proof  so  produced  and  given   iaJ 
evidence  fur  ihe  said  distend  ants  as  aforesaid,  to  I 
be  cunclu«ive  evidence  to  intitle  the  haid  dt^  I 
fend  ants  to  the  benefit  of  tlie  stulute  atbre&iajdy  | 
and  to  bar  the  siiid  Dryden  Leach  of  his  aclioiit  I 
aforesaid.      But  to  ihis^  the  counsel   for   tb%*| 
plaintitf  then  and  ths»^  ins^i^ted  before  t  be  chief  J 
justice,  that  the  matters  and  eudence  aforesaid  f 
so  produccnl  and  proved  on  the  part  of  the  de*  i 
tt^ndanls  as  aforesaid,  were  not  sufficient,  nor  ] 
ou;{hi  to  be  adoutted  or  allowed  to  intiile  the  said  { 
delendanU  to  ihe  henelit  of  ibe  statute  alore- 
suid,  or  to  bur  the  said  Dryden  Leaclt  of  hilj 
fttoresaid  action  ;  and  that  ueithcH  ^he  said  de- 
tendanlSf  or  any  of  them,  nor  the  said  earl  of  ] 
U  ah  lax,    were    or    Has  uiibin    the  words  or  f 
meaaiii^  of  ibe  stutuie  made  i^  ibe  seveutU.  | 
year  of  his  late  uiajesly  kin;^  James  the  flritpJ 
intjtled,  **  An  Act  for  ease  in  pleading  ajraius|l 
troublesome  and  contentious  suits    prosecuted  1 
a^ruinst  justices   of  the  peace,  iDayorit,  con^f 
stables,  and  cerlaiu  other  bis  ioajc6ly's  officerty J 
for  the  lauful  execution  of  their  office;'^  ^^^A 
of  the  Ktatute  made  in  the  twenty -first  year  i  ~ 
the  rerg^n  of  the  same  bite  kin^,  tntitled,  **  Aol 
Act  to  enlarge  and  make  perpetual  ibe  act  madt] 
for  ease  iu  pleiiilio^  against  trouhlesonie  and 
contentious  suit^,  prosecuted  against  justices  < ' 
the  peace,  mayors,  constables,  and  certain  otherJ 
Lis  majesty's  officers,  for  the  lawful  executiotll 
of  tlteir  once,  made  tu  the  seventh  year  of  bill 
majesty'^  most  happy  reig'n  ;"  nor  of  the  siiidi 
Btalute  made  in  the  twenty  fourth  year  of  ih^ 
reign  of  his  late  iot\iesty  king  George  tlte  se* 
cond  ;  nor  in  anv  wise  btitled  to  the  bctj*  fu  of 
;*T 


1011] 


5  GEORGE  III. 


Action  of  False  Imprisonment^^ 


[1019 


anv  of  those  utatutes.  And  the  counsel  for  the 
mid  Dryden  Leach  further  insisted,  that  the 
seizure  and  imprisonment  of  the  said  Dryden 
Leach  were  not  made  and  done  in  obedience  to 
the  said  warrant ;  nor  had  the  said  defendants, 
or  anv  of  them,  in  that  behalf,  an^  authority 
thereby.  And  the  said  chief  justice  did  then 
and  there  declare  and  deli? er  his  opinion  to  the 
jury  aforesaid,  '*  that  the  said  sereral  matters 
«o  produced  and  proTcd  on  the  part  of  the  de- 
fendants were  not,  upon  the  whole  case,  suffi- 
cient to  bar  the  said  Dryden  Leach  of  his 
aforesaid  action  against  them  ;*'  and,  with  that 
opinion,  left  the  same  to  the  said  jury.  Where- 
upon the  said  counsel  for  the  said  defendants 
did  then  and  there,  on  behalf  of  the  said  de- 
fendants, except  to  the  aforesaid  opinion  of  the 
aaid  chief  justice;  and  insisted  on  the  said 
aer eral  matters  and  proofs  as  an  absolute  bar 
to  the  afbresatd  action,  by  virtue  of  the  last 
mentioned  statute.  And  inasmuch  as  the  said 
■e? eral  matters  so  produced  and  given  in  evi- 
dence on  the  part  of  the  said  defendants,  and 
by  their  counsel  aforesaid  objected  and  insisted 
on  as  a  bar  to  the  action  aforesaid,  do  not  appear 
by  tbe  record  of  the  verdict  aforesaid,  the  said 
counsel  for  the  aforesaid  defendants  did  then 
and  there  propose  their  aforesaid  exception  to 
Ae  opinion  of  the  said  chief  justice,  and  re- 

auested  the  said  chief  justice  to  put  bis  seal  to 
lis  bill  of  exception,  containing  tne  said  several 
matters  so  produced  and  gi? en  in  evidence  on 
the  part  of  the  said  defepdants  as  aforesaid,  ac- 
cording to  the  form  of  the  statute  in  such  case 
made  and  provided ;  and  thereupon  the  afbre- 
•aid  chief  justice,  at  the  request  of  the  said 
counsel  for  the  above-named  defendants,  did 
put  his  seal  to  this  bill  of  exception,  pur- 
suant to  the  aforesaid  stattKe  in  sucli  case  made 
and  provided,  on  the  tenth  day  of  December 
aforesaid,  in  the  said  fourth  year  of  tbe  reign 
<{f  his  said  present  majesty.       C.  Pratt,  L.  S. 

And  hereupon  the  said  John  Money,  James 
Watson  and  Robert  Blackmore  say,  that  in  the 
record  and  pi€ceedings  aforesaid,  and  also  in 
the  matters  recited  and  contained  in  tbe  said 
bill  of  exceptions,  and  also  in  giving  the  ver- 
dict upon  tne  said  issue  t>etween  the  parlies 
aforesaid  first  above  joined,  and  also  in  giving 
tbe  judgment  aforesaid,  there  is  manifest  error, 
in  this,  that  the  said  chief  justice,  before  whom, 
&c.  at  and  upon  the  trial  of  the  said  issue  be- 
tween the  parties  aforesaid  first  above  joined, 
did  declare  and  deliver  his  opinion  to  tbe  jury 
aforesaid,  <<  That  the  said  several  matters  men- 
tioned in  the  said  bill  of  exceptions,  and  so  as 
aforesaid  produced  and  proved  on  the  part  of 
'  the  said  John  Money,  James  Watson,  and  Ro- 
bert Blackmore,  were  not,  upon  the  whole  of 
the  case,  sufficient  to  bar  the  said  Dryden 
Leach  of  his  action  aforesaid  against  them ;" 
and,  with  that  opinion,  left  the  same  to  the  jury. 
There  is  also  error  in  this,  that  by  the  record 
aforesaid  it  appears,  that  tbe  verdict  aforesaid 
was  given  upon  the  said  issue  first  above  joined, 
for  the  said  Dryden  Leach,  against  them  the 


said  John  Money,  James  WataOd,  and  Robert 
Blackmore :  whereas,  by  the  law  of  the  land, 
the  verdict  on  that  issue  ought  to  have  bec& 
given  for  the  said  John  Money,  James  Watson, 
and  Robert  Blackmore,  against  the  said  Dryden 
Leach.  There  ik  also  error  in  this,  that  it  ap« 
pears  by  the  record  iiforesaid,  that  judgmoit 
in  form  aforesaid  was  given  for  the  said  Dry* 
den  Leach,  against  them  the  said  John  Moneyi 
James  Watson,  and  Robert  Blackmore :  whers* 
asj  by  the  Uw  of  the  land,  the  judgment  afbie- 
said  ought  to  have  been  ffjjen  lot  them  tbe  said 
John  Money,  James  Watson,  and  Robert 
Blackmore,  against  the  said  Dryden  Leach. 
And  the  said  John  Money,  James  Wat80D| 
and  Robert  Bhickmore,  pray  that  tbe  iudgmcat 
aforesaid,  for  the  errors  aforesaid,  and  others  in 
the  record  and  proceedings  aforesaid,  may  ba 
reversed,  annulled,  and  altogether  had  Ibr 
nothing ;  and  t)iat  thev  may  be  restored  to  all 
which  thc^  have  Idst  by  occasion  of  the  jii%i» 
ment  aforesaid,  &c. 

And  bereupdn,  the  said  Dryden  Leadi^  h 
his  proper  person,  voluntarily  comes  here  mif 
court,  and  prays  leave  to  rejoin  to  tbeemNBI 
aforesaid,  before  our  lord  the  king,  until  on  tht 
morrow  of  the  Holy  Trinit/,  wheresoever,  Ik. 
and  he  hath  it,  &c.  Tbe  same  day  is  given  t^ 
the  said  J.  M.  J.  W.  and  R.  B.  At  which 
day  come  the  parties  aforesaid  in  their  proper 
pei-soos:  and  the  said  Dryden  Leach  says, 
^*  that  there  is  not,  either  in  tbe  record  and  pro» 
ceedings  aforesaid,  or  in  tbe  matters  recited  sad 
contained  in  the  said  bill  of  exceptions,  or  in 
giving  the  verdict  aforesaid,  or  in  the  jndgmeiit 
aibresaid,  any  error  i*'  and  prays  that  the  Comf 
here  may  proceed  ^to  examination  as  well  ef 
the  record  and  proceedings,  as  of  the  matleif 
aforesaid  above  assigned  for  error;  and  tbst 
the  judgment  aforesaid  may  be  affirmed  m  aD 
things. 

This  case  was  first  argued  on  Tuesday  tbe 
-18th  of  June  last,  by  Mr.  Solicitor  Geoen) 
De  Grey  for  the  plamtifi's  in  error ;  and  by 
Mr.  Dunning  for  tbe  defendant  iu  error. 

Mr.  Dt  Grey  divided  his  arguments  ioti 
three  points. 

1st,  The  defendants  had  a  right  to  plead  the 
general  issue,  and  to  give  the  special  matter  ia 
evidence,  under  7  Jac.  1,  c.  5.  Or,  in  other 
words,  lord  Halifax,  the  secretary  of  state,  was 
a  justice  of  peace  within  the  intention  of  thst 
act. 

Sdly,  The  evidence  was  sufficient  to  eotille 
the  defendants  to  a  verdict.  Which  will  take 
in  both  the  validity  of  the  warrant  itself,  and 
the  manner  of  executing  it. 

3dly,  They  were  also  entiUed  to  a  verdiet 
within  tbe  meaning  of  34  Ge6.  S,  c.  44,  tb# 

Elaintifi*  not  having  observed  the  terms  reqniici 
yit. 

First  pobt^Before  the  statute  of  7  Jao.  t, 
5,  a  matter  of  special  justification  oonid  notba 

S'ven  in  evidence  by  a  justice  of  peace,  gpti 
e  general  issne  ploidea  by  bin. 


1015]         Leach  t?.  Three  of  the  King's  Mmengers.        A.  0.  1765. 


The  queitioQ  is — Who  wtre  metnl  in  tlmt 
act  of  pai^liamcnl^  by  justices  of  the  p^ce. 

SocDe  perdODf  were,  from  ancient  tim^,  »o» 
by  office;  tome  irc  so  by  speciat  commission  * 
tome,  by  corrioration -charters  j  iome,  by 
lenure ;  »ome,  dv  nrescrintioo, 

In  ih^  lime  of  Edward  the  thirds  other  per* 
•OQt  were  aHlhonzeil  to  act  within  patticular 
iljfltriets. 

But  the  great  ofHccrfi  of  stale  bad  Ute  juris- 
diction, as  incident  to  their  offices.  ISo  had,  tn 
#omc  degree,  coroners  and  other  inft^rior  offi- 
cers* 

The  secretaries  of  slate  must  ba?e  had  it  as 
Incident  to  an  office^  so  aucieoUy  as  to  be  coe> 
^9^  with  the  crovrn  itself, 

A  statute  iu  Edward  the  Ist's  reigrn  says,* 
**  Dosouth  fe  Petit  Seale,  ne  issera  desormes 
liol  briefe  ^tie  touches  le  common  ley/^  And 
lord  Coke,  in  his  comment  upon  it,  in  his  S 
lust  5^6,  calls  it  the  8ignettum,  the  king's 
signet,  H'hlch  at  the  makinfirof  that  statuie 
iho  king  bad ;  aod  says — *<  This  seale  is  erer 
in  the  cusloily  of  the  principsl  secretary  :  and 
liiere  be  four  clerks  of  the  slg^net  attending  on 

This  seal  is  as  ancient  as  the  ciown  ;  and 
the  officer  titat  keeps  it,  as  ancient  as  the  seal 
itself:  and  he  is  an  otBcer  well  known,  and 
recognijfitd  by  many  acts  of  parliament ;  and 
Ibe  king's  wanants  are  countersigned  by  him. 

lo  esses  of  treason,  and  of  felony,  the  courts 
of  law  recognize  his  aulhority  :  and  tljcre  is 
^ual  ren«on  for  it,  in  cases  of  misdemeanour ; 
which  *  4 feet  gorernment,  and  disturb 

tlie  pui 

^  s  libel  is  an  offence  agsinst  go- 

yer  lit  the  public  peace ;  and  effectually 

IMi<lerrin[it>«  government. 

A  secrciiiry  of  state  is  a  centinel  for  the  pab- 
Ho  peace  i  il  is  his  duty  to  prevent  the  violation 
<>f  it,  and  to  hrin^^  the  offenderi  to  justice  ;  and 
II  ;«  f.,-— nr-y  thai  he  should  be  invested  with 
111!  in  order  to  enable  him  to  execute 

The  case  of  Rex  v.  Kendal  and  Hoe,  1  Salk. 
S47f  has  settled  this  point,  as  to  treason  :  for 
it  was  there  holden/*  that  secretaries  of  btate 
might  commit  for  suspicion  of  treason,  as  con- 
ferVators  of  the  peace  dtd  at  common  law  ;  and 
that  it  was  incident  to  the  office,  as  it  is  to  the 
office  of  justices  of  peace,  who  do  it  rutionc 
^vcii,^  h\u\  the  commitment  to  a  messeoger 
,WM   \\u      '  .  ■  ^.  -i  .    ,Md. 

Id   1  Queen  v.  Derby,  B.  H, 

^70^t  tu/iim,;  tor  piiblishioga  scandalous  and 

♦  V.  Artie,  super  Chartas,  38  E.  l,c,  0. 

f  V.  5  iMijd.  78»  S.  C.  Vol.  13,  p.  1299.  of 
|b;«  r.ilii.*  iu.n  •ind  Comberb*  543.  Holt  144. 
S:-  U  Mod.  m. 

^  ^t  J  ^,  II  i^il  I  know  not  that  any  full 
Account  was  ev*  1  Bat  the  case  as 

lictrc  ciU'd  tK  repar  ^  ^  tt-r  140.  This  rase 
.wms  mainly  relied  on  by  lord  EtIrnWough 
Cll.  Jusl.  of  B.  II,  in  his  wpcech  (July  17, 
ISD)  iu  Una  liouae  uf  LordS|  y^u  a  molioa 


seflitious  libel  called  The  Observator^lbe  two 
points  abovementioned  were  admitted  by  Mr, 
Lecbmere,  who  was  counsel  for  the  defendant* 

for  the  second  reading  of  lord  Holland's  T,m 
OJHrio  Information  Bills,  (See  U$  \\xi\.  Debw 
1069,)  and  I  will  theretoris  here  insert  For- 
tescue's  rc^port  ofit; 

*<  Da  Term.  Sanct.  Mich.  10  Ann«  Kegioaw 
In  the  King's- bench. 

**  The  Ui^ecn  Tenui  Derbt. 

*^  The  defendant  was  a  pnitler,  and  wa« 
committed  in  the  vacation  by  a  secretary  of 
sTate^  and  on  a  Habeas  Corpus  returnable  be- 
fore chief  justice  Parker  at  his  chamber,  ho 
was  brought  before  the  chief  justice,  and  en- 
tered into  a  recognisiince  to  appear  the  first 
day  of  the  term. 

"  On  that  day  he  appeared  in  the  King's* 
bench,  and  moved  by  his  counsel  Mr.  Lech- 
njere  to  be  discharged;  fsking  several  excep« 
tions  to  the  commitment. 

**  The  warruoi  appeared  to  be,  to  autlioriae  a 
messenger  forthwith  to  make  strict  search  for 
Derby  the  printer,  and  tn  seiKC  and  secure  hiiQ 
for  publishing  and  vending  a  scandalous  and 
seditious  libel  called  *  The  Observator,  N*  74,* 
and  to  bring  htm  in  safe  custody  before  me  to 
examine  the  premises,  and  to  be  farther  dealt 
with  according  to  law. 

**  Fimt  Exception  was,  that  for  a  libel  a  se- 
cretary of  state  could  not  commit;  but  h% 
agreed  the  power  of  a  secretary  of  state  to 
commit  for  treason  or  felony,  and  ihnt  a  rnes* 
senger  was  a  proper  officer ;  lH>il)  piVmts  being 
adjudged  in  the  case  of  the  Queen  and  Kendal 
and  Roe,  [Sulk.  317,  5  Mod.  T8,  sod  vrd.  IU, 
p.  1'299,  of  this  Collection.]  because  it  was  no 
oflence  on  which  a  commitment  mighi  by  law 
be,  till  indictment  or  presentment  \  ihst  this 
was  an  inhibition  ag aio!<t  all  bail,  and  that  com* 
mitments  were  punishments  only  after  convic- 
tion,  and  not  beiore  ;  and  without  hearing  at)<| 
without  oath  to  be  seized  and  secured,  i«  hard. 
That  36  Ed.  5,  cap.  4,  says^  no  man  ought  to 
be  imprisoned  but  by  presentment,  indiilmeol^ 
or  by  process  of  law  ;  and  ihat  Isstly,  the  de- 
fetidant  offered  the  messenger  lO.QCK)/.  bail,  but 
it  was  refuted  I  saying  he  had  orders  Ui  briog 
him  in  custody. 

**  Second  I'^xception :  Here  is  no  particular 
offence  set  out,  it  is  only  ssid  in  general  terms, 
for  a  libel  called  «  The  Observnlor,  N"*  T4,* 
III  high  treason,  it  is  no  escape  if  the  cause  of 
comniitment  do  not  appear  in  the  i«anant< 
3  Car.  1  is  llie  foundaticm  of  the  Bill  of  Rights  ; 
mtnisters  of  state  sheltered  themselves  by  urg* 
iti(£  it  was  *  per  muiidaium  domini  re^i?<  ;*  I  his 
ftiilt  short  ot  that,  for  here  rs  nn  colour  at  at] ; 
the  pnpvr  ia  commendable,  it  ti  a  translutioa 
of  Tacitus,  where  be  talks  of  an  angry  addU^- 
headed  projector :  mcnti  lurbM  Is  the  rx«  _ 
pivs«lon. 

"  Third  Eiception  :  That  the  conclasioD  I 
Dftitght,  b«C4UM  httrs  jfl  Ao  Cimt  fixed,  wbctt 


I 


1015J 


5  GEORGE  III. 


Action  of  False  Impruonmini"^ 


[1016 


He  Af^eed,  the  power  of  a  secretary  of  state  to 
commit  for  treason  or  felony ;  and  that  a  mes- 
senger was  a  proper  officer.  And  in  that  dase, 
the  Court  held  the  warrant  good  and  legal. 

he  is  to  be  brought  before  the  secretai^ ;  so 
the  time  being  indefinite,  it  is  a  commitment 
during  pleasure. 

"  Fourth  Exception :  That  he  is  to  be  brought 
before  him  to  be  examine<l ;  so  that  a  secre- 
tary's office  is  to  be  turned  into  a  court  of  in- 
quisition, where  he  is  to  be  compelled  to  make 
confession. 

**  Then  the  counsel  for  the  prisoner  offered 
affidavits,  but  the  Court  r^ected  them.  In 
answer  to  the  objections  it  was  said  by  the  at- 
torney aqd  solicitor  general,  that  if  these  ob- 
jectionisi  prerailed,  it  would  make  an  end  of 
warrants  of  justices  of  the  peac^*;  and  that 
this  warrant  was  uot  a  commitment,  but  only 
what  was  necessary  in  order  to  bis  being  exa- 
mined ;  and  that  a  justice  might  order  to  have 
bim  kept  a  reasonable  time  to  be  examined ; 
that  by  the  act  of  spreaders  of  false  news,  he 
may  be  detainetl  till  be  discover  the  author ; 
that  a  warrant  was  only  to  Q^fy  the  crime  in 
general ;  nor  was  there  ever  any  such  thing 
•s  a  time  fixed  in  any  warrant  whatever  to 
come  before  a  magistrate.  It  was  said  also, 
that  he  could  not  now  take  exception  to  the 
commitment,  because  he  had  entered  into  a  re- 
cotj^nisaiice  to  appear;  so  that  he  had  ac- 
quiesced, and  had  got  bis  liberty  by  it ;  and  it 
was  also  insisted,  that  were  he  never  so  inno- 
cent he  could  not  be  discharged  the  first  day  of 
the  term,  for  that  the  constant  practice  of  the 
Court  was  otherwise ;  the  true  question  here, 
is  only,  whether  a  secretary  of  state  cannot 
send  for  an  offender  to  examine  him,  which 
■urely  he  may ;  suppose  this  were  a  libel,  is 
there  any  other  method  in  the  world  to  fetch 
the  party  before  him  but  this  ?  and  as  to  bail 
being  offered  and  refused,  that  can  be  no  ob  • 
jection,  because  a  messenger  cannot  take  bail, 
Jiavingno  authority  so  to  do  if  it  were  offered. 
It  is  agreed  a  secretary  of  state  may  send  for  a 
person  to  examine  him  for  hit^h  treason,  why 
not  for  a  misdemeanor?  The  reason  is  the 
same.  The  meaning  why  the  species  of  crime 
is  set  fortli^in  the  warrant,  is,  that  it  may  ap- 
pear the  justice  and  magistrate  has  jurisdiction. 

•*  Chief  Justice  Parker.  The  <lefendant  can- 
not be  discharcfed,  and  the  warrant  is  good  and 


In  the  case  of  Rex  v,  Earbury,  M.  7  G.  ^ 
17S3,*  who  was  arrested  and  committed  by 
warrant  of  a  secretary  of  state  ;  aad  hit  papen 
seized,  which  he  applied  to  have  restored ;  lonl 

this  world,  in  any  warrant  whatever,  nor  ii  it 
possible  to  do  it  without  a  maaifeat  injury  to 
the  party  ;  for  supprae,  for  the  purpose,  a 
fortnight  should  be  limited,  the  party  theo 
must  be  in  custody  all  that  time,  and  perhaps 
he  might  be  discharged  the  very  first  day,  aM 
certainly  would  if  he -did  ap|>ear  and  was  found 
innocent.  The  law  has  already  fixed  a  lime; 
for  by  law  the  officer  is  bound  to  carrv  hiji 
immediately  before  the  magistrate :  if  be  delay, 
any  time,  it  is  against  the  duty  of  hia  office, 

**  As  to  setting  forth  the  crime  in  the  wur 
rant,  that  is  wellenough ;  for  the  warrant  it  fa 
set  forth  the  particular  species  of  crime,  bat 
not  the  particular  facts  of  that  crime ;  as  in  a 
warrant  for  felony,  you  need  not  set  out  io  the 
warrant  the  particular  goods  stolen.  In  ibe 
case  of  the  Queen  and  Kendal  and  Roe,  tha 
prisoner  was  not  dificharged,  though  they  beid 
the  warrant  not  sufficient  to  charge  bim  with " 
high  treason:  but  they  bailed  him  to  appear  t* 
a  charge  for  assisting  one  to  escape  for  biah 
treason.  If  it  were  for  high  treason,  then  ba 
is  not  bailable :  but  when  the  species  of  crime 
does  not  appear,  it  does  not  app«ir  to  as  he  ii 
not  bailable,  and  therefore  we  bail  him.  Hen 
the  crime  does  appear,  and  he  gives  bail  to  be 
forthcoming  in  order  to  examine  tbia  matter; 
it  is  only  in  order  to  a  prosecution. 

*<  Justice  PowU.  It  is  a  privilege  to  be  exa- 
mined, which  is  not  allowed  in  other 'countries; 
where  a  warrant  is  to  bring  one  before  a  parti- 
cular justice,  the  officer  may  carry  bim  ocfora 
another,  if  he  be  a  nearer  especially. 

"  Justice  £t/re.  He  cannot  be  discharged : 
a  secretary  of  state  has  a  power  to  issue  a  war- 
rant ;  it  was  held  so  in  the  case  of  the  Qiieea 
and  Kendal,  and  settled  in  queen  Elizsbeth's 
time«  The  speiues  of  crime  is  set  forth,  which 
is  enough^  it  need  not  set  forth  the  facts,  as  so 
whom  the  robbery  was  committed,  or  whose 
hou<(e  broke  open  ;  pnhlisbing  a  libel  is  a 
crime  viell  known  in  our  law  :  soppose  it  wcrs 
only  for  suspicion  of  high  treason,  ne  shall  not 
be  discharged,  hut  shall  answer  it.  In  that 
case  of  Kendal  and  Kne,  he  might  be  innocent 
of  the  crime  charged,  yet  they  continued  him 
on  his  recognisance,  but  did  uot  discharge  him. 


legal.  Suppose  there  l>e  an  information  to  a  j  I  do  not  know  that  ever  there  was  any  time 
justice  of  peace  t'lat  one  is  a  felon,  may  not  he  mentioned  in  any  warrant,  so  that  exception 
send  a  warrant  to  have  him  come  before  him  ?  goes  to  all  warrants.  Suppose  the  warrant  bad 
If  the  officer  ^lUst  obey  the  warrant,  (as  he  |  been  to  commit  him  without  bail  or  mainpriie, 
niusl.)  he  must  seize  hiiii,  and  must  secure  him     if  a  crime  certain  were  charged,  he  should  not 


only  for  that  |>urpose,  and  this  is  nothing  more. 
To  htve  him  examined  is  a  privilege,  and  for 
the  henefit  of  an  innocent  man  ;  for  perhaps  on 
the  examination  he  may  Hear  hiruself,  and  then 
he  will  be  dischargeil :  nay,  in  the  case  of  fe- 
Jony,  the  justice  of  peace  is  bound  to  take  his 
examination. 

*<  But  it  is  said,  there  ought  to  be  a  time  fixed 
for  his  examinatibn.    Tbia  was  never  done  jo 


be  discharged.'' 

•  See  this  Case  reporteil  in  Fortesc.  37.  ft 
Mod.  177.  In  a  note  to  Wilkes's  Case«  (4 
Burrow,  <2;330,  see  this  Case  also  in  the  Col« 
lection)  the  reporter  says,  that  he  had  a  Dda 
tak^n  by  himself  of  Earbury's  case;  and  ba 
notices  that  the  report  of  that  case,  in  the  lint 
edition  of  8  Mod.  was  very  bad,  but  that  it  wta 
much  mended  in  the  late  ediUon  of  that  beefc" 


Leach  v.  Thrre  of  the  King's  Mesiengers.         A*  D.  176S. 


1017] 

Hanlwicke  UM,  ll)«t  Uiey  coiiUi  not  be  re- 
stort^d,  in  a  suiimiQry  ^^^y,  oti  mottaii.  Tbe 
^AfTAdt  there  wn.€  **  to  sc!irclt  for  the  p«j»ers, 
•n<t  lo  bring  the  author  before  tbe  secretary  of 

The  sUltite  of  1  E.3  enacti,  *  for  tbe  belter 
'  kff^pitt^f  »nd  maintenauce  of  the  peace,  jo^ood 
'  mcti  aad  lawful  shall  in  etcry  county  be  us- 

*  aiirti^l  to  keep  ibe  peace,*       80  I  E.  3^  c.  3- 
The  18  C.  3,  Btat.  f,  c.  2,  is  the  first  stalute 

Ihal  ^ivea  llie  ju^licature  of  liearin^  and  de- 
tetmiuiug  t  34  E.  3,  c.  5,  cnUrgei*  their 
pothers.  The  2  H.  5,  c.  4|*  culls  them  by  the 
express  name  of  *  justices  of  the  peace/ 
3jb#ir  cotitmission  ini powers  them  to  keep  the 
Bfee  ;  arid  a  1 1*0  contains  a  distinct  clause  *  to 
iKr  and  determine/ 

Tbcrrfore,  the  old  conservators  of  the  peace 
fttiU  rem  a  in «  They  have  a  bo  pov^er  to  bear 
»ad  determine  as  justices.  They  are  wardens 
of  tbe  pence  too»  by  their  commission,  as  well 
&i  (y  '^  ^^^  '    and  they  may  Hkewiae 

by  ti.  .    21  law,  without  any  special  com- 

inU^ioQ  or  u arrant,  use  force  to  sup pvesi  re> 
bria.  For  which  last  aaaertLoo,  be  cited 
Mielyn^  76. 

I'he  statute  of  7  Jae.  1,  c.  5^  (about  plead* 
I  bsue)|  meaos  to  protect  all  that 
lors,  or  wardens,  or  justices  of 
well  as  those  that  act  under  spe- 
cial eoffimissiuns. 

Tb«ac:t4>f  *i  Fh.  and  M.  c.  13,  (relatincr  io 
rorpnratfon  justices)  calls  them  *  commis* 
tioneni  fc*r  the  conservation  of  the  peace.' 
Jualice  of  peace  ta  not  a  strict  technical  namer 
Ibey  itiay  be  called  cuatodes  pacU,  In  2  UoL 
'Abft   9  J,  III  If,  JuHliceiiM  de  Peace,  it  is  said, 

*  T!i«t  an  indictment  taken  before  them,  oam- 
I'  ing  ibrm  cu9to(fcs  pQcit,  and  not  justices  of 

*  tlie   pcAce  (as  ih^  Mtatute  names  them)  is  a 
indictment;  lor  it  is  all  one.*      It  in  not 

ial  how  the  apiKiintment  is  made.  The 
tea  mean  to  include  all  conser^ulors  of  the 

^ice :    they  may  all   now  plead  the  (general 
ur,  and  ifif e  the  Kpecial  matter  in  evidence. 
Tbe  act  of  7  Jac*  ],  c.  5,  dots  not  indeed  ex- 
titid  10  any  juNlices  ^itlint;  in  Nts^ions:  it  only 
BXlends  lo  Ihriii  in  ilieir  singlp  jurisdiction. 
The  fftatme   uf  11  (I.  0~  c.  0,    Mhat  suits 

*  and   processes  before  jusiires   of  the  peace 

*  shall   nut  be  discontinued    by  new  commis' 

*  aioner*,*  is  no  evceptton  to  tins  rule:  nriiber 
ia  i  11.  5»  Stat  1,  c.  4,  §  %  '  that  justices  ni^ 
'  ibr  pcctce  of  the  quorum  nhall  bt;  reliant  in 

*  tHeir  *bire  ;  (except  lords  named  in  the  com- 

*  mission,  6cc.  Sec/) 

Acts  uf  fmrhatni^t  shall  be  taken  with  lati- 
Ifide,   an  F  li  to  casen  wiUiin  the  same 

pieaaon.aii  '»r  the  same  remedy.  Plowd. 

900,  liuni  /^MM-TiS  Ki\%e,  Vti.  Lift.  24,  b, 
10  €0.  101,  b.  lJeau»Jift-»  case,     Plowd.   U7, 

E[  V.  Studd.  Pluwd.  36,  PIhH  xy.  The 
iifs  of  Londfin.  Bn».  Parliament  20 
twortb's  Office  of  Executors  67.  Sir  T. 
I  as.     Plummer  v.  Whitchcot. 


•  V.  ttit,  1, 6.  4^  I  f » and  itat.  9,  c.  t. 


[lOlS 

The  rule  about  *  several  particulars  of  an  in- 

*  ferior  nature  beingf  enumerated,  excluding; 
^  those  that  are  of  a  >ii|;rher  nature  nod  not 
*enuro<*rttied,'' will  not  hold  here.  This  act 
is  not  done  as  a  higher  ofTictT;  but  only  aa  a 
justice  of  ptwce.  The  bishop  of  Nurwicli 
bf^ini;  uamcrd,  extended  to  all  bisbops,f  10  the 
warden  oftbeFieet  belni;  nomedf  extends  ta 
all  guulers.  In  Moore  845,  Tlidps  p.  Winch* 
comhe,  ti  was  reswived,  *,  that  a  deputy  eon- 

*  stable  may,  by  the  equity  of  the  statute  of  1 

*  7  J.  1,  c.  5,  pieail  the  general  issue.* 

Persons  acting  for  preservation  of  ilie  pub* 
He  peace  ought  lo  he  protected :  antl  iliese  old 
coni»erralors  of  it  are  more  reasonably  intitleil 
to  pi-otectioD,  than  other  persons  are. 

Second  point — If  the  special  matter  may  be 
given  in  evidence,  iheu  the  question  wid  be* 

*  Whether  this  mntter  given  in  evidence  would» 
if  it  hail  been  pleaded,  amount  to  a  justification/ 

ft  is  objected,  *  that  the  warrant  is  out  legal ; 

*  and  that  it  was  ill  executed/ 

lst»  As  to  the  warrant  itself— No  gucb  ac- 
tion has  ever  been  broutcbt  upon  these  war> 
rants,  by  persons  apprebendeil  by  virtue  of 
them  :  or,  at  least,  there  is  none  upon  record. 

It  is  said,  *  that  this  warrant  is  too  extensive 

*  in  the  description  of  the  person  :  and  that  it 

*  has  been  abused/ 

Answer — The  nower  is  not  ilfeg^al:  and  the 
abuse  of  it  is  no  objecuon  to  the  warrant  itself. 
Huch  warrants  are  an^reeable  to  Jong  practisd 
and  usag[e. 

Whatever  the  present  determination  may 
be,  in  point  of  law,  it  will  be  in  the  breast  of  Ibe 
legislature  to  ^4  it  right. 

In  the  Uewdley  case,  reported  1  Peera 
Willtama  S07.  (Regiua  v,  Batlivos,  ^c.  of 
Bewdtey)  a  construction  of  an  act  of  parlia* 
iiient  contrary  to  the  words  of  it  was  al- 
lowed, t'iMinde«l  u[)on  onlv  seven  years  prac- 
tice. fnC'mibeib.  342,  The  India  Company 
V.  Skinner — where  the  warrant  was  granted 
before  any  default;  Holt  said,  '  that  the  prac- 
'  lice  havin;^  been,  in  case  of  taxes,  to  grant  a 

*  conditional    warrant    to    distrain,    rommwnit 

*  error  fiicUjui* 

Tlie  jmwer  of  justices  of  peace  *  to  commit 
befr»re  indictment,'  stand.^  supported  only  by 
practice  and  usage.  In  6  Mud.  178,  fi«^ntt 
V,  TrucVi  Holt  I'll.  J.  says,  *  Formerly,  none 

*  could  he  taken  up  lor  a  misdemeanor,  till  in- 

*  cfictment  found :    but  now   the   practice  al( 

*  over  England  is  otherwise.'     And  ptr  Halei 

*  That  practice  is  Income  a  law.'  80  hkewiae 
has  usatire  and  pra elite  cslabiiikh^  Ac  ctiamMf 
Quomtnus,  new  triuU,  ^c. 

The  greatest  juil^e«  bavu  liailed  persons 
taken  up  upDU  these  warranls  ;  and  they  havt 
not  he»^n  ohjpci»'dto,  by  either  courts,  or  coon- 


'^  S!ier  0lackstone*8  C«>mmentarieS|  Intro* 
dticlion    *^— «     I    vot.  1,  p.  88, 

f  S  iitn's  Oiitiervsfiunii  OD  tlie  Sta- 

tute of   '  L    pectj^  Agatis,    Id  Ed.  1;   tud 

Lord  Coke  and  Pry  one,  as  therein  dtni* 


S  GEORGE  III. 


1019] 

■eloftbegreitestemiiieace:  wbereis,iftbey 
verenocfe^,  the  penoiu  apprebemM  udoq 
tbem  oogbt  to  bate  been  dischargeH.  For 
wbicb  be  dtei,  1  Hale'i  Hut.  P.  C.  ^78. 
The  Coart  will  not  make  orders  npim  ill^^ 
varranU  :  cooie^iieiitly,  they  saw  no  ohjecdoo 
to  them.  Even  the  greatest  friends  to  the 
Berolation  have  not  ol^ected  to  these  warranu. 
From  whence  it  most  be  inferred,  ttiat  no  ob- 
jection lies  against  Ibem. 

On  6  July,  16&1,  in  the  case  of  air  John 
Elliott,*  Sec,  the  House  of  Commons  resolved, 
that  it  was  a  breach  of  pririlege :  but  they  did 
BOt  vote  it  illegal. 

Lord  Hardwicfce,  in  Earbary's  case,  only 
iaid,  '  he  would  not  then  determine  it.* 

In  treason,  it  will  scarce  be  objected  to ;  nor 
in  felony. 

In  51iss  Blandy*s  case,f  her  bureaa  was 
broken  open :  and  her  papers  seized ;  and 
given  in  evidence. 

Id  decent  prints  or  books  may  be  seized  by 
a  ma^strate:  and  they  often  have  been  so. 

£vidence  taken  from  felons  or  other  crimi- 
nals mav  be  produced  against  tbem ;  though  a 
criminal  shall  not  be  compelled  tu  produce 
tiich  evidence  against  himself. 

It  is  said,  *  that  this  warrant  is  illegal,  be- 
pauae  it  is  general,  to  take  up  the  authur, 
printer,  or  publisher.'  But  it  is  legal  to  issue 
find  execute  a  warrant  against  a  person  un- 
known, but  only  described.  Indeed  the  ma- 
gristrate  issues  it,  and  the  officer  must  execute 
It,  at  their  peril.  And  though  the  warrant  in- 
cludes seizing  the  papers,  yet  that  part  of  it 
has  not  been  executed :  and  the  bare  insertion 
of  it  shall  not  affect  the  officer  who  executed 
tbe  other  part  ef  the  warrant. 

The  facts  are  these — A  warrant  was  directed 
to  four  messengers  :  Carrington,  ooe  of  them, 
is  informed, '  that  l^each  was  the  printer:  aod 
that  the  reputed  author  was  frequently  at 
Leach's  houite.'  The  other  three  act  on  this 
information.  And  this  information  was  not 
groundless :  for  they  found  a  sheet  of  another 
number,  wet  and  just  printed.  They  take  liim 
pp,  and  carry  him  to  lurd  Halifax's  office ;  who 
was  not  then  at  leisure  to  examine  him  :  but 
when  be  did  examine  him  (four  da)  s  after),  he 
discharged  him.  Here  was  probable  cause  for 
takioj^  him  up. 

A  justice  of  |)eace  having  jurisdiction,  may 
grant  a  proper  warrant  on  probable  cause  :  and 
ministerial  officers  (constables,  6cc.)  are  not  to 
be  affected  by  the  ilht^ality  of  tbe  warrant,  in 
other  naris  of  it.  This  warrant  was  executed 
honestly,  and  upon  a  probable  cause. 

Third  point— the  plaintiff's  action  is  suffi- 
cientljr  barred  by  24  G.  2,  c.  44,  for  want  of 
observing  the  terms  required  by  it.  They 
neither  proved  notice,  as  the  third  section  re- 
c|uires  ;  nor  made  the  demand  required  by  tbe 
sixth  section. 

*  See  this  Case,  vol.  3,  p.  393. 

i  See  her  Case,  vol.  18,  p.  1118.  • 


Attion  nf  False  /wjarikuwgirf—  [1(K0 

The  defendants  have  acted  ia  ofccdieBceis 
the  warrant  of  a  magistrate  who  u  a  justice  of 
peace  within  the  meaning  of  this  act;  and  1^ 
his  order,  and  in  bis  aid. 

Tbe  only  doubt  is,  •  Whether  die  actioa  ■ 
brought  for  any  thing  done  in  obedience  to  the 
warrant ;  or  noL* 

The  defendanu  have  obeyed  it,  to  the  beat  sf 
their  power. 

However,  as  they  have  acted  under  oohMr  of 
the  warrant,  meanme  to  obey  it,  they  are  Mt 
answerable,  although  they  may  have  erred  ia 
tbe  execution  of  iL  They  are  protected  1^ 
this  act,  if  they  have  acted  bona  fidt ;  even 
though  the  warrant  aod  the  execution  be  B- 
le^.  They  are  not  to  judge  of  aidoo« 
piNntsoflaw:  tbe  statute  means  to  protect  tbca 
from  it. 

Sdly.  The  previous  step  to  hringin||^  this  ac- 
tion was  not  taken ;  viz.  tbe  demanding  a  pe- 
rusal and  copy  of  the  warrant,  and  abewing  a 
refusal  of  it. 

If  there  was  a*  fiiolt,  or  negligence,  or  nis- 
take  in  this  proceeding,  tbe  fault  was  in  tbe 
magistrate :  there  was  none  in  the  cfiecr  vba 
executed  it.  And  the  rcquuite  steps  bare  Mt 
been  taken,  in  order  lo  maintain  tbe  snit 

Therefore  the  plaintiff  is  barred  of  ihii 
action. 


Mr.  Daaaiir^,  coairo— for  BIr.  Tcich,  lbs 
plaintiff  below. 

The  first  question  is,  <  Whether  this  be  a 
case  within  94  G.  2,  c.  44.'  Which  ^ocHioa 
will  involve  tbe  question,  *  Whether  it  be  widb- 
in  the  acto  of  7  J.  1,  c.  5,  or  31  J.  1,  c.  It. 

All  these  statutes,  b^ing  in  pari  wml€n§% 
must  receive  the  same  construction  :  and  tbiy 
are  all  unapplicable  to  the  present  case. 

He  then  made  three  sub- divisions  of  bis  fint 
question :  viz. 

1st,  Whether  lord  Halifax,  being  secrctaiy 
of  state,  is  a  conseiTstor  or  justice  of  peace, 
within  the  true  intent  and  meaning  of  the  act  of 
24  G.  2,  c.  44. 

2dly ,  W  hether  the  defendants  are  constaUcf, 
headU>rougbs,  or  officers,  5cc.  within  the  iotcal 
and  meaning  of  that  act. 

3dly,  Whether  this  action  is  brought  sod 
properly  pursued,  within  the  true  intent  an4 
meaning  of  it ;  and  for  a  matter  done  in  oba* 
dience  to  the  warrant. 

First  point — Lord  Halifax  is  not  a  justice  «f 
peace  within  24  G.  2.  He  is  not  so  bv  oomoiii- 
sion :  he  is  not  so,  as  incident  to  his  offioei, 
eitber  of  secretary  of  state,  or  of  privy  oona* 
sellor. 

But  it  has  been  said,  *  he  is  a  conservator  if 
the  peace ;  and  therefore  within  the  meanilf 
of  the  act* 

1  deny  the  principle  and  also  the  concluM* 
I  adroit  the  case  of  Rex  v.  Kendal  and  Rm; 
though  the  reasons  of  it  do  not  appear :  bokl 
submit  to  the  authority  of  it,  *  That  a  seot- 
tary  of  slate  has  a  power  to  COBUnitCwl^ 
treas9n«' 


Leach  ».  Thru  of  the  Kbt^t  Me^ngm,        A.  i>.  I?$5. 


nm 


leant  Hinkins*i  rfSBont  (to  not  sopp^rt 
{  givitnifin :  and  I  detiy  iliftC  i  secretary  of 
le  »«  R  confl*»rTftfor  of  the   peace.     He  hu 

1  f  reason,  as 
!•  >3a»es:  anrl 

t  ij   Hi^r'j^  VASP  rirnts  it   n  6  farther. 

r  :  uefer  uicant  to  rettol^eany  thing 

inner. 

All  tlie  crown- writers  at^e  aUent  on  this  sub- 
id  of  a  ttpcretarj  of  atate'^i  hairiug^  tlii<t  juris- 
Icltoti.  None  of  them  even  hint  tlmt  a  &ecre- 
\ry  of  slate  m  a  conM«rTatof  of  the  peace. 
taun^ford,  Fitz*  Herbert,  Lambard,  &c.  say 
.ing. 
*  giTcs  the  list  of  those  offirers 
servator>j  of  the  peace:  but  there 
loti  r  t  gecrctdcies  of  stale. 

ai%k.  n  the  same  list,  wiih- 

^  secretaries  ol  state. 
S  no  proof  OP  pretence  that  the  con- 
lorshlp  of  the  |)eace  is  incident  to  their 
lee  ;  tior  in  there  any  usage  to  support  such 
Dotioo*    Ttieir  ctiiuii  of  a  po>«'er  to  grant  fluch 
•rrants  as  the  present  one,  is  not  prcteodeil  to 
'^^^^     ^'    n  the  Herotution. 

Kfere  justices  of  the  peace,  or  con- 

•    -'  V  *'-v  "     "I"  •>-  f'—tld   to 

r  re- 

■ .      ,      - ^^    ......:,  ,:^  »uTi. 

'conin>til  ot  ttiii  court. 

XL-  diirereiit  in  creation,  ^nsti- 


^  Off  the  wirrsnt  shews  that 

'  did  not  consUler  himself 
lor,  or  constahfe, 
I  salute  iS  nut  to  be  extendctl  beyond  tbe 
of  it ;    it  is  not  within  the  maxims  or 
I  of  extension  of  acti  of  parrjameot. 
necessary  to  consider  ilte  former  sta- 
'  7  J.  1,  c.  5,  and  21  J.  l,c.  13.     (Both 
kicb  he  rehearsed  and  observed  upon). 
f  Ihete^  there  is  no  niention  of  secretaries 
ilc;    nor    is  there  an?  reason  to   add 
ih-*»'.^  f"V"ra^cd;    the  rather,  as 
[f-  wiili    persons    infe* 

LLi*iL-     1    -  L4te.     Neither  is  there 
imatfine  that  ihe    legisfattire 
*  itfii  it'creturics  itf  fttale  wilh- 
The    preamble    shews 
Ih'  .*        The  line  drawn   he- 

thoge  euuLuerated  and  those  omitted^ 
^tL€  same  fhiii^.  The  persons  intended 
cted,  are  persons  bound  to  act,  and 
ihe  pubhc  good^  without  rewnrd  ; 
Ticers  with  great  salaries,  who  are 
k  and  are  not  bound  to  act« 

'     td  by  the  second  act 
rneu,  o?erseers,  &c,) 
ifthiii  ii:c  uuichief  of  the  former; 
tea  they  were  not  virtually   included  in 
I  and  ar«  therefore  particularly  nam- 
llttr 

•  explanatory  act  omits^  ncverthe- 
oamr  secretaries  of  state.  Bui  con- 
_  — '- 

•  V.  Lib.  l,c.  3. 
I  I^ih.  9,  €.  6|  ^  3. 


staMea  are  within  the  tetter:  and  it  exf^mls  16 
DO  others.  And  he  n^ferr^d  to  4  Inst.  175,  atid 
the  two  marptnal  notes  there  ;  one  on  7  J.  6, 
5,  aorj  lti<?  other,  on  21  J.  C.  12. 

From  all  wlhch  premisses  he  Srgtietl,  th4l 
th<^e  acts  of  Jac,  1,  ire  not  to  be  extHided  he- 
yond  the  letter:  and  if  they  were,  yet  ther^ 
IS  no  r^soD  to  extend  them  to  secretaries  of 
^ale,  as  not  being  ^^^ithin  the  same  incoiit ent* 
ence. 

No  more  reason  is  there  to  extend  that  ot 
$4  a  •  .'  At  tf  t).i.  u^rUutiire  hadio  in- 
lei  ned  it  to  jus^ 

tic^  ij^istratet  wcU 

known  and  ur  'ti  our  law. 

So  tiiuch  i   I  le  lord. 

^tWy,  Aw  to  the  nftessengers — They  do  n#l 
fall  within  tlie  wonis  or  meaniof^  of  the  act  of 
7  J.  1,  c.  5,  whidi  is  coiilitufd  to  oflnecri,  who 
nrti  persona  known  in  our  law,  and  bound  to 
execnle  the  warrant  of  a  justice  of  peace  ;  ao 
tiilice  of  burthen,  not  cf  profit ;  and  incapa- 
lile  to  di^liiiguiab  (hi;  prciJise  limits  of  m  juffit« 
diction. 

There  is  no  renpect  in  the  case  of  the  king^ 
rnessen^em  in  ordinary  ;  who  are  persoim  im* 
known  in  our  law,  and  mere  volunteifn  m 
execntfO^  Wm  rauta  of  juxlices. 

The  words,  ^  other  oflicers,  &c.*  tnean  bor> 
•holders,  &c.  officers  of  the  same  sort  as  con* 
stables  and  tithingmeti ;  not  king's  messett^ri. 
These  persons  cannot  be  considered  as  aidin|f 
tod  assisting  the  constables.  The  warrant  and 
the  fact  are  quite  Ihe  rererse  :  the  constables 
are  directed  to  asaiU  them.  They  do  not  acf 
under  the  comraand  of  a  justice  of  peace,  or 
ID  his  assistance. 

This  warrant  is  not  under  the  hand  and  seal 
of  a  justice  of  peace.  Therefore  the  act  do«« 
not  protect  the  defendants. 

3df y,  Nor  it  the  act  done  in  obedience  to  thii 
warrant.  The  warrant  was  *  to  appreJiend  the 
author,  printer,  or  publisher  :*  hut  ibey  hare 
executed  it  upon  a  person  who  was  not  the  au- 
ilior,  printer,  or  publisher.  Consequently,  ai 
they  hare  not  acted  under  it,  tbey  canU  be  pro- 
tected by  it. 

It  is  said,  *  that  a  description  is  ef]uirs1ent  to 
naming  the  persons ',  and  thai  here  is  a  sufii* 
cient  desiTiption/ 

But  the  description  of  an  offence  is  no  de- 
scription of  the  person  o0ending  i  and  thia  it 
only  a  description  of  the  offence. 

The  obedience  to  the  warranl  is  the  condi* 
tion  of  the  protection  which  the  act  gives  to 
the  olTicer.  Therefort*,  the  condition  lailing, 
the  protection  does  not  take  place. 

Here  is  no  probable  oaase,  nor  any  reason 
for  justifying  the  officer  under  a  prol»uble  cause. 
It  is  not  like  the  cases  ol' apprehending  trailora 
ur  feloni.  Here  is  only  information  from  one 
of  their  own  body,  ^  that  the  author  of  the  paper 
had  been  aeen  going  into  Leaches  bouse  ;  and 
I  hat  Leach  was  the  printer  of  the  compositioQ 
in  (jfenemi  ;*    not  of  this  particular  paper. 

But  though  fl«iih«i:  ihUU«aA%K^-\ii^^tiA.>3i^f«^ 


1023]  5  GEORGE  lit.  Actum  of  False  Imprisonment—  [1024 

was  io  itself  true  ;  Dor  would  the  conieqnence    the  robber  or  murderer  of  such  a  one.*     Tbb 
iblkmr,  if  it  b^d  been  true ;  yet  tbey  thereupon  :  is  no  description  of  the  person ;  but  oqIj  of  tb« 

arrest  tnd  imprison  an  innocent  man.    There-  '  "^ '^  ' ■  ?  ^  -^      « —  --  •- — -• — * 

fore  these  men  themselves  are  to  answer  for 


doings  this :  not  the  person  who  issued  the  war- 
rant. The  warrant  did  not  command  nor  au- 
thorize them  to  do  what  they  have  done.  Jt  is 
Decessary  for  them  to  shew  an  acting  in  obedi- 
ence to  the  warrant ;  otherwise  they  are  not 
within  the  protection  of  the  act  In  proof  of 
which  he  cited  two  cases ;  one  by  the  name  of 
L4wson  [qu.  or  Dawson]  v.  Clark ;  and  the 
other  a  Norwich  case,  where  a  bailiff  had  exe- 
cuted the  warrant  out  of  the  proper  jurisdic- 
tion. 

Upon  these  authorities,  upon  the  reason  of 
the  thing',  and  opon  the  words  of  the  act,  the 
officer  is  not  entitled  to  the  protection  of  the 
act ;  nor  needs  the  justice  be  made  a  party,  but 
where  the  officer  acts  in  obedience  to  the  war- 
rant: acting  under  colour  of  it  only,  is  not  suf- 
ficient. 

Besides,  the  party  apprehended  was  not  car- 
ried before  lord  Halifax,  or  dealt  witli  accord - 
inff  to  law.  Surely,  this  was  the  act  of  the 
officer ;  not  of  the  person  who  signed  the  war- 
rant. And  no  reason  is  i;i?eo,  stated,  pretended, 
or  even  existeil,  why  this  matter  was  so  trans- 
acted. Therefore  there  was  no  probable  cause 
or  reason  whereupon  to  ground  a  justification 
of  this  their  conduct. 

8o  that,  even  allowing  the  secretary  of  state 
to  be  a  justice  of  iieace,  and  the  officers  to  be 
constables;  yet  the  action  lies  against  the 
plaintiffs  in  error,  who  have  acted  in  this  un- 
justifiable manner. 

It  appears  therefore,  that  even  if  they  had  a 
defence  upon  the  merits,  they  have  not  pro- 
perly pleaded  it.  However,  m  fact  they  had 
DO  defence  upon  the  merits :  the  plaintiff 
Leach  was  neither  author,  printer,  nor  pub- 
lisher of  the  paper ;  nor  at  all  nitbin  the  de- 
icription  of  the  warrant. 

But  the  warrant  itself  is  illegal.  It  is  against 
the  author,  printer,  and  publisher  of  the  paper, 
generally,  without  naming  or  describing  them  ; 
lind  not  fbundedion  any  charge  upon  oath  :  it  is 
also,  <  to  seize  his  papers ;'  that  is,  all  his 
paiiers. 

No  justice  of  peace  has  power  to  issue  such 
a  warrant.  Therefore  lord  Halifax  could  nut 
do  it  as  a  justice  of  peace.  -Nor  is  there  any 
pretence  of  usage  to  support  such  a  claim  of 
doinir  it  as  secretary  of  state,  further  back  than 
the  lievolution. 

It  lies  upon  them,  to  prove  their  claim,  and 
to  shew  their  authority. 

The  practice  of  a  particular  magi&trate  can- 
not controul  the  law.  Communit  error  is  not, 
ill  this  case,  sufficient  to  make  law.  It  is  the 
duty,  and  it  is  therefore,  doubtless,  the  inclina- 
tion of  the  Court,  to  stop  the  mischief,  as  soon 
as  it  is  complained  of  to  them. 

If  *  author,  printer,  and  publisher,'  without 
naming  any  particular  person,  be  sufficient  in 
■nch  a  warrant  as  this  is ;  it  would  be  equally 
^1  to  issue  a  warrant  generally,  '  to  take  up 


offence :  it  is  making  the  officer  to  be  judge  of 
the  matter,  in  the  place  of  the  pcraoo  «bo 
issues  the  warrant.  Such  a  power  woold  bt 
extremely  mischievous,  and  might  be  produc- 
tive of  great  oppressioo. 

To  ransack  private  studies  id  order  In  icarch 
for  evidence,  and  even  without  a  prevkios 
charge  on  oath,  if  contrary  to  natural  justice^ 
as  well  as  to  the  liberty  of  the  subienl :  and  it 
is  as  useless  as  it  is  cruel,  in  the  case  of  libels; 
becauae  it  is  the  publication  only  that  makes 
the  crime  of  a  libel. 

To  search  a  man's  prif  tte  papers  ad  libUwa, 
and  even  without  accusation,  is  an  infringe- 
ment of  the  natural  rights  of  mankind.  Aad 
this  is  a  warrant,  to  *  seize  all  a  mao'a  papcni' 
nithont  any  particular  relatioo  eveD  to  tbe 
crime  they  would  suppose  bim  chargeaUs 
with.* 

No  case  of  this  sort  has  ever  nmlergMie  ja- 
dicial  discussioQ  and  determination.  And  as 
the  Court  does  not  interpose  In  caaea  not  ob- 
jected to,  00  arguments  can  be  drawn  froai 
such  as  passed  tub  silentio,  or  were  never  ob- 
jected to. 

All  the  writers  opon  the  crown  law  say, 
*  that  there  must  be  an  accusation ;  tliat  the 
person  to  be  apprehended  must  be  named ;  and 
that  the  officer  is  not  to  be  left  to  arrest  wbosi 
he  thinks  fit.'  For  which,  he  voncbed  Hale*i 
Hist.  P.  C.  1st  part,  p.  680  and  586,  and  Haw- 
kins's P.  C.  book  8,  c.  13,  §  10,  p.  81,and  6S. 

Here,  it  is  left  to  the  officer,  to  taki  up  aoy 
person  whom  he  hinuielf  suspects. 

Lord  chief  justice  Scrogga  was  impeacbod 
for  issuing  such  warrants  as  this  is. 

Therefore  he  prayed  judgment  for  the  de- 
fendant in  error. 

Mr.  Solicitor  General  De  Grey^  in  reply, « 
behalf  of  the  plaintiffs  in  error. 

A  secretary  of  state  is  an  officer  by  prescn|»- 
tion  ;  and  his  office  must  be  as  ancient  at  tbe 
office  of  the  person  to  whom  he  is  secretar^f : 
for  he  is  and  always  has  been  an  officer  neces- 
sary to  the  crotin  ;  and  the  constitution  alwavf 
require<l  the  support  of  this  office.  And  as  tbii 
power  to  commit  for  treason  depends  upoo 
]irescri|>tive  right  and  the  nature  of  his  office; 
so  likewise  it  does,  in  all  cases  of  presenrisg 
the  pnhlic  peace.    ' 

In  the  case  of  Kendal  and  Roe,  the  power, 
in  treason,  was  acknowlcd;{ed.  In  Darby'i 
case,  it  was  rc'Cot>iiize(l,  in  tVlony.  In  £tr« 
bury's  case,  (where  the  warrant  was  gene- 
ral, as  this  is,)  he  was  continued  on  his  recof- 
nizaace.  A  secretary  of  state  has  these  |ioweni 
Upon  the  rouudatiuii  of  prescription  ;  nf>t  oa 
our  law-hookki :  and  he  has,  equally,  the  po^ 
in  him  ;  whether  he  does  or  does  nt»t  exert  it  ia 
low  and  common  instances.  I  suppuse  beil 
as  compellable  to  act,  as  a  conservator  of  thi 

*  See  the  Case  of  Entick  v.  Carringtoit  !■" 
mediately  followiog  the  preaent. 


1085]         Lfoch  V.  Three  of  the  Antg**  Metsengers.         A.  D,  1705. 


[102C 


foritierty  wat«  before  the  acts  itf  parlia* 
lil<»rit  wiiif  ii  n^v^  xmyi^t  to  justiee»  of  peace. 

*  ciMi  »c»rcc  be  cilteil  LUm^ 

ini^s     1  ^      :  J  till  yet  these  atatulesejctcud 

tdtliem. 

A  ^jufiice  of  the  pcAce'  means  a  conser- 
rator,  a  wanlen  of  the  peace.  Therefore  there 
was  no  need  tn  uame  s^ctelaries  of  »tato,  in  the 
iict«  of  pftrhamcnt;  they  were  included,  with* 
out  nAining  tbeni  parlicuUrly. 

TUe  toarginal  note  in  lord  Coke  is  uo  ant  ho- 
,rily.  However,  these  officers  are  n tuned  jo 
gte  ItJCt,  *  and  oeruia  others  hii  maje^ty^a 

■*^Thii  action  \%  brought  for  what  was  done  in 
obedience  to  the  trarnint  j  i^hicli  the  o0icer 
wait  obliged  to  execute,  in  the  best  manner  he 
could. 

Jf  there  in  any  fault,  it  h  in  the  ma^trate: 
|f»  ahontd  hiive  deicribed  the  offender  wiili 
ipvatcr  certainty,  IT  the  executing  officer  acts 
to  the  best  of  his  ability  ;  he  is  justified,  and 
Aclst  in  obedience  to  his  warrant. 

Here  the  officers  did  so  :  ihey  were  reason- 
abty  aaiiified,  ^  that  Leach  was  the  printer.' 
And  on  search,  this  nrobabte  cause  was  en^ 
created  to  a  higher  de«frcc :  for,  they  found 
another  fresh  sheet  of  (he  same  work,  just 
printed  otf*  und  wcU  They  detained  him  on 
occasion  of  \%\h  being  to  be  carried  before  lord 
llalifaxi  to  be  examined.  The  officers  have 
uothini^iodo  with  his  examination;  that  was 
ih^afliiir  of  lord  Halifax;  and  if  he  discharged 
Uie  penioiut  upprehcndcd  and  brought  before 
liim,  without  examinaiion,  it  was  the  better  for 

Vanghan  111,  Stiles  v.  Sir  Bichard  Coxe 
olhersi — 41  wsis  determined,  that  Ihe  de^ 
ftudanis  should  have  the  beneHt  of  the  act ; 
bec«tJ«e  they  acted  by  colour  of  the  warrant. 
As  to  tba  WBirant  itself— it  is  objected,  *  that 
re  in  DO  charge  upon  oath/  But  there  was 
,  he  aaid,  for  it :  and  to  that  pyrpoaiey 
Ibe  dueeu  v.  Darby  [v.  Fortetctia 
Ur]  Rex  fj,  Earhnry,  Mich.  7  O.  3,  and 
I  Hale  P*  C.  5B3,  where  it  is  laid  down, 
^*  it  is  conrenient,  though  not  always  ne- 
*f,  to  lake  an  iururtnalion  upon  oath  of 
Iba  fiersou  that  desires  ihe  warraut.^^ 

ll  is  objected,  *  that  this  warrant  is  no4  an* 
'  *  ;ed  ny  any  length  of  usage.* 

It  the  usage,  as  here  staled,  is  sufficient : 

it  must  he  token  to  be  coeval  with  the 

The  bill  of  exceptions  indeptl  only 

,«•  it  up  from  the  Hevolution  ;  asscrling  that 

has  been  m  ever  •linco  that  time:  but  the 

up  to  the  Itedtoratiun  ;  and  none  of  a 

turm  wiTC  produced,  prior  to  the  fCe- 

A*  Uj  seiicing  papers^ — it  is  dilficult  Indeed  to 
imr  the  exact  line.     But  it  lu  ceriamly  neces- 

in  soiDt  decree  :  and  no  instHOce  in  pro* 
',  of  such   wArranti  having  ever    oceu 

I  as  instruments  of  oppresKioo* 

I'led,  upon   ihe  whole,    Uiai  the 
»  right  to  bring  his  action. 


LonI  M^mfidd — 1  suppose,  this  iti  intpnJeill 
to  be  argued  again.  However,  I  will  say  F 
fcoiuething,  at  present,  upon  it. 

A  bill  of  exceptions  supposes  the  evidence  | 
true  ;  and  questions  the  competeocy  or  pro*] 
priety  of  it.  j 

*  Whether  there  was  a  probable  cause  o?  ' 
ground  of  suspicion/  tvas  a  mstter  for  the  jury  j 
to  deternaine  :  that  is  not  now  before  the  C(Mirt» 
So—-*  whether    the   defendium    detained    ttvi  j 
plaintid^on  unreasonable  time,' 

But  if  it  had  been  found  to  have  been  n  \ 
reasonable  lirne  ;  yet  it  would  be  no  justitici* 
tion  to  the  defendants  \  because  it  is  stated, 
*•  that  this  raan  was  neither  author,  printer,  or 
ptiblisher;'  and  if  he  wiis  not,  then  they  hnvt  i 
taketi  up  a  man  who  was  not  the  subject  of  tha 
warrant. 

The    three    material    Questions    are — Istt  < 
"  Whether  a  secretary  of  sJateaciing  us  a  con-* 
servator  of  the  peace  by  the  common  law,  is  tf» 
be  construed  within  the  statutes  of  James  thtt 
first,  and  of  ttie  last  king/* 

The  protection  of  the  officers,  if  they  hai-o 
acted  in  obedience  to  the  warrant,  is  cons«- 
quential,  in  case  a  secretary  of  state  is  withiii 
tnese  statutes*  As  to  the  arrest  being  mode  in 
obedience  to  the  warrant,  or  only  under  colour 
of  it  and  witliout  authority  from  it— this  ques- 
tion depends  upon  the  construction  ot  the  war- 
rant ;  whether  it  must  not  be  construed  to 
mean  <  such  persons  as  are  under  a  violent  sus- 
picion of  being  guilty  of  the  charge  ;*  (for 
they  cannot  be  conclusively  considered  as 
guilty,  titi  after  trial  and  conviction.)  The 
warrant  itself  imports  only  suspicion ;  for,  it 
says,^ — '<  to  be  brought  before  me,  and  exa- 
mmed,  and  dealt  witn  according  to  law:*'  and 
this  s.u'tpicion  must  eventually  depend  upon 
future  triaU  Therefore  the  warrant  does  not 
seem  to  me,  to  mean  conclusive  guilt  j  but  only 
violent  suspicion*  If  the  person  apprehended 
should  be  tried  and  acquitted^  it  would  shew 
'  that  he  was  not  guilty  ;*  yet  there  might  he 
sufficient  cause  of  sutpidon, 

Mr.  Ounning  says,  very  rightly,  that,  '  to 
brin^^  a  person  within  34  G.  9,  the  ad  must  bo 
done  in  obedience  to  the  warrant.' 

The  last  point  is»  *  whether  this  general  war- 
rant be  good,' 

One  pait  of  it  may  be  laid  out  of  the  cfls«  t 
for,  as  to  what  selatcs  to  the  seizing  his  pa|i«ni, 
that  part  of  it  was  never  executed  \  and  Lhef«* 
fore  tt  is  out  of  ihe  case. 

It  is  not  fiiatertal  to  detennine,  « wh«lh<f 
tbe  warrant  be  good  or  bad;*  except  in  tli« 
event  of  the  case  being  within  7  J.  1,  but  not 
within  ^i  Ct.  fi. 

At  present— -as  to  the  validity  of  the  war- 
rant, upon  the  single  objection  of  the  incsr- 
tainty  of  the  person,  being  neither  named  nor 
described — the  coititnon  law,  iu  many  ca»es» 
give^  authority  to  arre*>t  without  warrant; 
niore  especially,  where  taken  in  ttic  rery  set: 
atid  thertaie  many  cades  where  partieuhiracts 
of  parliament  have  given  authority  to  appre* 
Iteud,  ttoder  general  warrants  \  as  iu  lUe  ov<i% 


1027] 


5  GEORGE  III.  Action  tf  False  ImprUonment,  SfC. 


[loss 


of  writs  of  assistance,  or  warrants  to  take  up 
loose,  idle,  and  disorderly  people.  But  bere,  it 
is  not  contended,  that  the  common  law  gave 
the  officer  authority  to  apprehend;  nor  that 
there  is  any  act  of  parliament  which  warrants 
this  case. 

Therefore  it  must  stand  upon  principles  of 
climmon  law. 

It  is  not  fit,  that  the  receifin(|f  or  judg^infif  of 
the  information  should  he  lefl  to  the  discreiion 
of  the  officer.  The  magfistrate  ou^ht  to  judge ; 
and  should  f^ive  certain  directions  to  the  officer. 
This  is  so,  upon  reason  and  convenience. 

Then  as  to  authorities — Hale  and  all  others 
hold  such  an  uncertain  warrant  void :  and  there 
is  no  case  or  book  to  the  contrary. 

It  is  said,  *  that  the  usage  has  been  so ; 
and  that  many  such  have  been  issued,  since 
the  Revolution,  down  to  this  time.' 

But  a  usage,  to  grow  into  law,  ought  to  be  a 
general  usage,  communite.rmitaia  et  approhaia  ; 
and  which,  aHer  a  long  continuance,  it  would  be 
mischievous  to  overturn. 

This  is  only  the  usage  of  a  particular  office, 
and  contrary  to  the  usage  of  all  other  justices 
and  conservators  of  the  peace. 

There  is  the  less  reason  for  regarding  this 
usage ;  because  the  form  of  the  warrant  pro- 
bably took  its  rise  from  a  positive  statute  ;  and 
the  former  precedents  were  inadvertently  fol- 
lowed, after  that  law  was  expired. 

Mr.  Justice  Wilmot  declared,  that  he  had  no, 
doubt,  nor  ever  had,  upon  these  warrants  :  he 
thouii^ht  them  illegal  and  void. 

Neither  had  the  two  other  judges,  Mr.  Jus- 
tice Yates,  and  Mr.  Justice  Aston,  any  doubt 
(upon  this  first  arcfument)  of  the  illegality  of 
them :  for  no  degree  of  antiquity  can  gfive 
sanction  to  a  usage  bad  in  itself.  And  they  es- 
teemed this  usage  to  be  so.  They  were  clear 
and  unanimous  in  opinion,  that  this  warrant 
was  illt!>rul  and  bad. 


LonI  Mamjldd- 
argument. 


-Let  it  stand  over  for  further 


The  Case  standing  in  the  paper,  on  Friday 
the  8lh  of  November,  1705,  for  farther  argu- 
ment— 

Mr.  Yorkc^  attorney-general,  was  now  to 
have  argued  on  behalt'of  the  pluintifis  in  error ; 
and  begun  to  enter  into  hit  argument:  but 
when  he  came  to  mention  the  two  cases  cited 
hy  Mr.  Dunning,  both  of  which  were  deter- 
mined before  lord  Mansfield,  upon  24  G.  2, 
c.  44,  one  of  them  at  Norwich,  summer  as- 
■izes,  1761 ;  (where  damages  were  given) ; 
the  other  of  them,*  ou  a  warrant  under  the 
Vagrant  Act  of  17  G.  2,  (where  his  lordship 
Jield,  *  ihat  the  defendant  ought  to  shew  that 

*  the  officer  had  acted  in  obedience  to  the  war- 

•  rant  ;*  and  he  did  so  ;)  he  seemed  to  intimate 
that  this  objection  *  of  their  not  having  done 

♦  DawsoDor  LawsoD,  v,  Clarke,  y.ante. 
p.  1023. 


*  so,  in  the  present  case,'  was  too  gTeat  a  diffi- 
culty for  him  to  encounter ;  and  tberefore 
rested  the  matter  where  it  was,  witiiont  pro- 
ceeding any  further  in  his  argument. 

Lord  Mantjield  remembered  both  tbese 
Cases ;  and  said,  He  still  continued  of  the  same 
opinion. 

Where  the  justice  cannot  be  liable,  the  of- 
ficer is  not  within  the  protection  of  the  act 
The  case  in  Middlesex  concludes  exactly  to  liie 
present  case<  For,  here  the  warrant  is  to 
take  up  the  author,  printer,  or  publisher ;  but 
they  took  up  a  person  who  was  neither  aq|hor, 
printer,  nor  publisher:  so,  that  case  was  a 
warrant  *  to  take  up  a  disorderly  womaa;' 
a1id  the  defendant  took  up  a  woman  who  was 
not  so.* 

And  he  held  the  same  opinion  now,  he  laid, 
as  he  did  before,  in  the  case  at  Norwich. 

This  makes  an  end  of  the  case :  for,  this  is 
a  previous  question ;  and  the  foundation  of  tbt 
defence  fails. 

The  consequence  is,  that  the  judgment  mol 
be  affirmed. 

The  other  judges  assenting,  the  rule  of  dit 
Court  was,  « that  the  judgment  b«  affirmed.*— 
Judgment  Affibmed. 

SThus  this  Case  went  off,  without  any  jodi* 
decision  on  any  of  the  chief  points  wbidi 
were  raised  in  it.  The  only  point  professed  Is 
be  regularly  adjudged  was.  That  the  warrant  in 
question  had  not  been  pursued.  Whetbert 
secretary  of  state  is  a  conservator  of  the  pesre 
ex-  officio,  and  as  such  within  the  equity  of  the 
statutes  in  favour  of  justices  of  the  peace; 
whether  he  has  power  to  commit  for  anj  of- 
fence under  high  treason ;  whether  a  siagte 
privy  counsellor  has  a  right  to  commit  ioisy 
case  ;  whether  a  warrant  for  the  seizure  of 
papers  could  not  be  justified  in  the  case  of  a 
seditious  libel ;  and  whether  a  general  war- 
i-ant,  neither  naming  the  offender,  nor  other- 
uise  describing  him,  except  by  relation  to  tbe 
offence  committed,  could  be  maintained  it 
common  law  ;  all  these  important  questioDi 
were  left  unndjudged.  However,  enough  was 
said  by  the  Court  on  the  last  of  them  toevioef, 
that  all  the  four  judges  thought  general  war- 
rants to  seize  the  person  universally  illegal,  ex- 
cept where  the  granting  of  them  was  specitlij 
authorized  by  act  of  parliament ;  and  from  the 
attorney-general's  readiness  in  yielding  another 
point  to  avoid  a  decision  of  that  concerning  tbe 
legality  of  general  warrants,  it  may  be  coo- 
jectured,  that  he  despaired  of  being  able  to  sap- 
port  them.  Uow  such  warrants  and  tbe 
seizure  of  papers  in  the  case  of  seditious  libeh 
were  both  finally  condenuied  by  a  declaiatoiy 
Uesolutinn  of  the  House  of  Commons,  will  M 
explained  in  a  note  at  the  end  of  the  Case  os 
the  Seizure  of  Papers,  which  is  the  next  in  tbif 
CnJIection.     Hargrave.] 

*  See  Leach's  Hawkins'a  Pleas  of  tiM 
Crown,  b.  H,  c.  IS,  s.  31. 


r 


1099] 


The  Case  of  Seizure  of  Papers. 


A.  D,  1765. 


[1030 


£41,  The  Case  of  Seizure  of  Papers,  being  an  Action  of  Trespass 
by  John  Entick,  Clerk,  against  Nathan  Caiiuington  and 
three  other  Messengers  in  ordinary  to  the  King,  Court  of 
Common^Pleas,  Mich.  Term  :  6  George  IIL  a,  d.   1765. 


^Th  15  Case  ts  ijlven  with  the  above- meutiotjed 
title;  becaust;  Ibe  chief  point  adjud«^eil  na!»| 
That  a  warrar»t  to  search  for  and  seize  the 
pajicrs  of  Ihe  ace  used  ^  in  I  he  case  of  a  se- 
ditious hbelf  IB  coDtriry  to  law.  But  this 
was  not  Ibe  oul  j  fjuesliun  m  the  Cuse.  All 
the  other  in  teres  tiug  subjecls^  which  were 
discussed  ia  the  immediately  precediu;iT  Case, 
except  the  question  of  Geocral  Wariauts,  were 
also  argued  in  the  f^dlowing  one ;  and  mosl 

i     of  ihem  seem  to  have  received  a  judicial  opi* 

I       oiou  from  llie  Court. 

iTbc  state  of  the  case,  with  the  arguments  of 
the  counsel,  is  takeo  from  Mr.  Serjeant  Wil- 
son's RejKirts,  2  VVils.  *i75.  But  instead  of 
liis  short  note  of  the  J  udgmetit  of  the  Cotul, 
die  Editor  has  the  pleasing  saiisfaclion  to 
present  to  the  reader  the  Judgmeul  itself  at 
tfngth,  as  dehvered  by  the  Lord  Chief  Jus- 
tice of  the  Coramou- Pleas  froon  written  notes, 
ilt  was  not  wilhoui  some  ditficidty,  that  the 
copy  of  this  Judgment  was  obtained  hy  the 
Bditor.  He  has  reason  to  believe^  that  the 
original y  most  excel leut  and  most  valuable  as 
its  couteuts  are,  was  not  deemed  v^orthy  of 

!  preservation  by  its  author,  but  was  actually 
committed  to  the  flames.  Fortunately,  the 
Editor  remembered  to  have  formerly  seen  a 
copy  of  the  J  udijmentin  the  hands  of  a  frienil ; 
and  upon  applicutioti  to  him,  it  was  imme- 
diately obtained,  with  liberty  to  the  Editor  to 
make  use  of  it  at  bis  discretion.  Before, 
liowever,  he  presumed  to  consult  his  own 
wishes  in  the  use,  the  Editor  took  care  to 
convince  himself,  both  that  (he  copy  was  au- 
thentic, and  that  ihe  iniroductiou  of  it  iuto 
this  Collection  would  uot  ^ive  otience.  In* 
deed,  as  to  the  authenticily  of  the  Judgement, 
except  in  some  trifling  inaccuracies,  the  pro- 
bable eflect  of  careless  transcribing,  a  first 
reading  left  the  Editor's  m'md  without  a 
doubt  on  the  subject  But  it  wag  a  respect- 
ful delicacy  due  to  the  noble  lord  by  whom 
the  Judtjment  was  duhvered,  tiot  to  publish 
it,  without  first  endeavouring  to  know,  whe- 
iUer  such  a  step  was  likely  to  he  displeaiiog 


brr4klft|T  ind 


to  his  lordahij) ;  and  though  fiom  the  want 
of  any  authority  from  him,  tho  Editor  ex-. 
poses  himself  to  some  risk  of  disapprobation, 
yet  his  precautions  to  guard  against  ii,  with 
the  disinterestedness  of  his  motives,  will,  he 
is  confident,  if  ever  it  should  become  neces- 
sary to  explain  tiie  circumstanct*!»  to  his  lord-^ 
ship,  be  received  as  a  very  adec|uale  apology 
for  the  liberty  thus  hazarded,     ilargrave.] 

J  N  trespass;  the  plaintiff  declares 
that  the  defendants  on  the  11th  day 
of  November  in  the  year  of  our 
Lord  1702,  at  Wesinunsier  in  Mid*  *'=' 
diesex,  with  force  and  arm»<  binike  and  entered 
the  dwelling-house  of  the  plainiifl'ii*  the  parisli 
of  St.  Dunstaii^  8li'pncy,  nml  eotuirtueil  there 
four  hours  %vithout  his  con)»cnt  and  a;j4insi  Ijis 
will,  and  all  that  time  dtsturbed  liuii  in  the 
peaceable  possession  thereof,  and  broke  open 
the  doors  to  ihe  rouiuii,  the  locks,  iron  b^iis,  fkc* 
thereto  affixed,  and  broke  open  the  boxes, 
chests,  drawers,  &c.  of  the  jdoiuiifl  in  his  house, 
and  broke  the  locks  thereto  nliixed,  and  tiearched 
and  examined  all  the  rooms,  ice,  in  his  dwell- 
ing-house, and  all  the  hoxe.^,  ^c,  bo  broke 
open,  and  read  over,  pried  iuto  and  examined 
all  the  private  papers,  hm>ks.  Sec.  of  the  plaintiff 
there  found,  whereby  the  secret  aftairs,  S;c.  of 
the  plaintifl' became  wrun^^fully  discovered  and 
ma<}e  public ;  and  took  and  carried  away  100 
printed  charts,  100  printed  pamphlets,  &c,  i!tc. 
of  the  plahiliif  iheru  found,  and  other  XQO 
churLs,  ^c.  Sec.  took  and  carried  away,  to  the 
damage  of  the  plaintiff  2,000/. 

The  defendaots  nlead  Ist,  not 
guilty  to  the  i^hole  declaration, 
whereupon  issue  is  joined.  2dly, 
Rsto  the  breukingancl  entering  the 
di«<flltng  house,  and  continuing  four  hours, 
and  all  that  time  disturbing  him  in  the  pus- 
session  thereof,  and  breaking  open  the  doori 
to  the  rooms,  and  breaking  open  the  boxes/ 
chests,  drawers,  cVc.  of  the  ploiraifl'  in  hi« 
hou^e,  cud  Ihe  searching  and  examining  all 
tlie rooms,  i^c.  in  his  ilweiling-house,  and  nit 
the  boxes,  6cc.  m  broke  optni,  and  rending 
over,  prying  into,  and  examioinc  the  private 
papers,  boukK,  Sec.  of  the  plaintifl' there  foimd^ 
and  taking  and  carrying  away  the  goods  antt 
chattt-ts  in  the  declaration  tirst  mi^ntionrd  there 
found,  ajH)  also  as  to  taking  and  carrying  away 
the  goods  and  chattets  in  the  declaration  ta»t 
mentioned,  the  defendants  say,  the  plaintiff 
ought  not  to  have  his  action  against  them,  he-^ 
cause  they  say,  that  before  Ihe  suppoied  tres^ 


a.    wtrrnui  uCr<d 
thf    tectttttf  ] 

OS It4(«.  J  f 


1031] 


6  GEOUGE  IIL  The  Que  of  Seizure  of  Papers^ 


[loss 


pass,  on  the  6th  of  November  1762,  and  before, 
until,  and  all  the  time  of  the  supposed  trespass, 
the  earl  of  Halifax  was,  and  yet  is  one  of  the 
lords  of  the  king^'s  privy  council,  and  one  of  his 
principal  secretaries  of  state,  and  that  the  earl 
before  the  trespass  on  the  6th  of  November 
1762,  made  his  warrant  under  his  hand  and 
seal  directed  to  the  defendants,  by  which  the 
earl  did  in  the  king's  name  authorize  and  re- 
quire the  defendants,  taking  a  constable  to  their 
assistance,  to  make  strict  and  diligent  search 
for  the  plaintiff,  mentioned  in  the  said  warrant 
to  be  the  author,  or  one  concerned  in  Uie  writ- 
ing of  several  weekly  very  seditious  papers, 
intitlefl,  *  The  Monitor  or  British  Freenolder, 
N°  357,  358.  360.  373.  376.  378.  and  380, 
London,  printed  for  J.  Wilson  and  J.  Fell  in 
Paternoster- row,'  containing  gross  and  scan- 
dalous reflections  and  invectives  upon  his  ma- 
jesty's government,  and  upon  both  [louses  of 
Parliament,  and  him  the  plaintiff  having  found, 
to  seize  and  apprehend  and  bring  together  with 
his  books  and  papers  in  safe  custody  before  the 
earl  of  Halifax  to  be  examined  concerning  the 

Eremisses,  and  further  dealt  with  according  to 
tw  ;  in  the  due  execution  whereof  all  mayors, 
sheriffs,  justices  of  the  peace,  constables,  and 
all  other  his  majesty's  officers  civil  and  mili- 
tary, and  loving  subjects,  whom  it  might  con- 
cern, were  to  l)e  aiding  and  assisting  to  them 
the  defendants,  as  there  should  be  occasion. 
And  the  defendants  furtiier  say,  that  afterwards 
and  before  the  trespass  on  the  same  day  and 
year,  the  warrant  was  delivered  to  them  to  be 
executed,  and  thereupon  they  on  the  same  day 
and  year  in  the  declaration,  in  the  day  time 
about  eleven  o'clock,  being  the  said  time  viben, 
&c.  by  virtue  and  for  the  exerutiou  of  the  said 
warrant  entered  the  plaintiff's  dwelling-house, 
the  outer  door  ihereoflK-ing  then  open,  to  search 
for  and  seize  the  plaintiff  and  his  Uouks  and  pa- 
pers in  order  to  bring  him  and  them  before  the 
earl  of  Halifax,  according  to  the  warrant;  and 
the  dtfendants  did  then  and  there  find  the 
plaintiff,  and  seized  and  apprehended  bini,  and 
did  search  fur  his  books  and  papers  in  his  house, 
and  did  necessarily  search  and  examine  the 
rooms  therein,  and  also  his  boxes,  chests,  6cc. 
there,  in  order  to  find  and  seize  his  boolu  and 
papers,  and  to  bring  them  along  with  the  plain- 
tiff before  the  said  earl,  according  to  the  war- 
rant ;  and  upon  the  said  search  did  then  in  the 
said  house  find  and  seize  the  goods  and  chat- 
tels of  the  plaintitl'in  the  declaration,  and  on 
the  same  day  did  carry  the  said  books  and  pa- 
pers to  a  house  at  Westminster,  where  the  said 
earl  then  and  long  before  trausacted  the  busi- 
ness of  his  oflice,  and  delivered  the  same  to 
Lovel  Stanhope,  esq.  who  then  was  and  yet  is 
an  assisunt  to  the  earl  in  his  office  of  tfccretary 
•f  state,  to  be  examined,  and  who  was  then  au- 
thorized 10  receive  the  same  frou)  them  for  that 
purpose,  as  it  was  lawful  tor  them  to  do ;  and 
the  plaiutill afterwords  (to  wit)  on  the  17th  of 
N'ovcmlier  iu  the  said  yrar  was  discharged  out 
of  their  custody ;  and  iu  searching  for  the 
books  and  papers  of  the  plaintiff  the  dctemla&ts 


did  necessarily  read  over,  pry  into,  and  examiae 
the  said  private  papers,  books,  &c.  of  tlie  plaio- 
tiff  in  the  declaration  mentioned  then  found  is 
his  bouse ;  and  because  at  the  said  time  when, 
&c.  the  said  doors  in  the  said  house  leading  to 
the  rooms  therein,  and  the  said  boxes,  chats, 
&c.  were  shut  and  fastened  so  that  the  defen- 
dants could  not  search  and  examine  the  said 
rooms,  boxes,  chests,  &c.  they,  for  the  neces- 
sary aearchinpf  and  examining  the  same,  did 
then  necessanly  break  and  force  open  the  said 
doors,  boxes,  chests,  &c.  as  it  was  lawful  kt 
them  to  do ;  and  on  the  said  occasioa  the  de- 
fendants necessarily  stayed  in  the  house  of  the 
plaintiff  for  the  said  four  hours,  and  unavoid- 
ably during  that  time  disturbed  him  in  the  poi- 
session  thereof,  they  the  defendant!  doing  if 
little  damage  to  the  plaintiff  as  they  possibly 
could,  which  are  the  same  breaking  and  co* 
tering  the  house  of  the  plaintiff.  See.  (and  m 
repeat  the  trespass  covered  by  this  plea)  when- 
of  the  plaintiff  above  complains ;  and  tliis,  &c 
wherefore  they  pray  judgment,  &c. 

The  plaintiff  replies  to  the  plea  of  jostifia- 
tinn  above,  that  (as  to  the  tres|>a88  Kepfiotta 
thereby  covered)  he  by  any  thing  ^  »■)«*•  "■ 
alledged  by  the  defendaoto  therein  ^'^'^ 
ought  not  to  be  barred  from  having  his  aotioa 
against  them,  because  he  says,  that  the  de- 
fendants at  the  parish  of  Stepney,  of  their  ovn 
wrong,  and  without  the  cause  bv  them  in  that 
plea  alledged,  broke  and  entered  the  hooseof 
the  plaintiff,  Ace.  &c.  in  manner  and  form  as  lbs 
plaintiff  hath  complained  above ;  and  this  W 
prays  may  be  inquired  of  by  the  c^antrj; 
and  the  defendants  do  so  likewise. — ^Tbete  is 
another  plea  of  justification  like  the  first,  widi 
this  difference  only ;  that  in  the  last  plea  it  iisl- 
lodged,  the  plaintiff  and  his  papers,  &c.  were 
carried  belbre  lord  Halifax,  but  in  the  flrit,  it 
is  before  Lovel  Stanhope,  his  assistant  or  law 
clerk ;  and  the  like  replication  of  *  de  injsris 
*  sua  propria  absq;  tali  causa,'  whereupon  a 
third  issue  is  joined. 

This  cause  was  tried  at  Westmiuster-htll  be- 
fore the  lord  chief  justice,  when  the  jury  fbaad 
a  Special  Verdict  to  the  following  purpoit. 

**  The  jurors  UDon  their  oath  say, 
ns  to  the  issue  nrst  joined  (u|M»n  SESl"*^"^ 
the  plea  not  guilty  to  the  whole 
trespass  in  the  declaration)  that  as  to  the 
coming  with  force  and  arms,  and  also  the  ties- 
pass  in  declaration,  except  the  breaking  and 
entering^  the  dwelling-house  of  the  plaiutiff,aiid 
continuing  therein  for  the  space  of  four  houis, 
and  all  that  time  disturbing  him  in  the  posses- 
sion thereof,  and  searching  several  rooms  there- 
iu,  and  in  one  bureau,  one  writing  desk,  and 
several  drawers  of  the  plaintiff  iu  his  house, 
and  reading  over  and  examininsr  several  of  bii 
papers  there,  and  seizin^f,  takinsT  and  rarrviag 
away  some  of  his  kioks  and  paprni  t)icn 
found,  in  the  declaratiou  coiuplaiued  of,  ibe 
baid  defendants  are  not  i^uilty.  As  Iu  brcakinf 
and  entering  the  dweilim^-liouse,  ^c.  f above 
excepted)  (he  jurors  on  their  oath  car,  tnat  at 
the  tune  of  makinff  the  foltowing  '  ''— 


033J 


EiUkk  V.  Carrington. 


A.D.  1765. 


[1034 


before  nnd  until  and  at  the  time  of  rraot* 
Vt|^  the  frarriinl  hereafter  mentionefj,  and  from 
lirnce  hitliertDf  the  eml  of  Halifax  vraj,  and 
IK  on©  of  liie  IfirJs  of  the  kind's  privy 
iCili  anil  one  of  hi«  tiniict]tal  scvTctaries  iff 
',  and  that  before  tlie  iiir»e  in  th«  declara- 
loD,  viae.  or|  the  1 1th  of  October  176'2»  at  8t. 
iamei'a  Westniiiisler,  one  Jonathao  8cr»tt  of 
^odoHt  book^llerand  puMi^her,  came  before 
£d^ard  WettORi  eaq,  an  a^isinlnut  to  the  said 
Arl,  anil  n  justice  (^f  |ieaee  IW  (he  city  and 
iberty  of  Westminster,  and  there  maile  and 
pare  infurtnatitHi  in  writings  to  and  before  the 
aid  Edward  Weston  nj^ambt  the  said  John  Kn- 
]  '  '  ihera,  the  tenter  of  virhich  intonnaiion 
I'  Hceii  and    giren  in  evidence  to  the 

hiiio^v^eth  lu  these  words  nnd  ti^^iirea,  to 
iBftir-      wit,    *  The  foluntary  infortDation 

»■«  •  proposed  setting  up  a  paper,  and 

metittfiQed  it  to  Dr«  Hhebbeare,  and  in  a  few 

udtys  0D«  Arthur  Beardmore  an  attorney  at 

Jaw  aeot  for  mc,  heurinK^  of  my  intention^  and 
desirM  1  would  mention  it  to  Dr.  8hebbeare, 
that  he  Beard  more  and  some  others  of  his 

ifrtc^nds  had  an  intention  of  setting  up  a  paper 
in  the  city.  Hhcbheare  met  Beard  more,  und 
inyaelf  and  Entiek  (the  plainiitf)  at  the  Horn 
tavern,  and  sgreed  upon  the  setting  up  the 
paper  by  the  name  of  the  Monitor^  nnd  that 
Dr.  Hbebbeiire  and  Mr.  Entiek  shouUi  hare 
tfOU/.  a>y€ir  each,  llr.  Hhebheare  put  into 
IleanliiKir»'a  and  Entick's  hand*  some  papers, 
bat  before  the  papers  appeared  Beardmore 
a««t  Ihern  bock  to  mm  (8oott).  Shebheare 
insisred  «iu  having  tlte  propcrrtton  of  hts  salary 
paid  him  ;  he  had  50t.  wliich  t  (8coit)  fetched 
from  Verc  and  AsgiH*s  by  their  note,  which 
Beardmore  gare  him ;  Dr*  Shehbeare  npon 

^this  wan  t|^uite  kfl  out,  and  the  monies  have 
bt«ci  conttnued  to  Beardmore  and  Entiek 
c?er  aince,   by  subscription,  as  I  suppoied, 

'raiied  f  know  oot  by  whom  :  it  has  been  ct^n- 

'tinu«d  in  these  hands  ever  »kioi:e.  Shebbeare, 
Beardmore  and  Entiek  all  told  me  that  the 
late  alderman  Beckford  countenanced  the 
pafter ;  they  agreed  with  me  that  the  profitg 

.of  the  paitefi  paying  all  char^e«  belonging 
to  it,  Nhould  be  allowed  rue*  In  the  [vaperof 
the  2 2d  iMay,  called  Sejanus,  1  apprehend 
thr  :'  -  '^^  of  Spjanus  meant  lord  Bute: 
thi-  TUunuHcript  wan    in    ihe    band- 

iW**u»|^o.   U,i¥id  1>^   '^"'i''"    '^'r  li-'-'itnore's 

idcrk.     I  before  ro  jit  for 

I  years  till  \\.  ,    ..,.,j    ., lUe  aatd 

-iMUidit  and  do  bclicre  that  they  continue  stiil 
lo  writu  it.  Jonu.  Scott,  St.  Jamcs*s  11th 
Cklober  I76t/ 


the  king^s  messctigerSi  and  dntv  sworn  to  that 
office,  for  apprehending  the  plaintiflT^  Sec,  the 
tenor  of  tvhich  warrant  produce*!  in  evidence 
to  the  jitrors,  follows  in  these  7Unttttt\Mrf 
words  and  figures:  *  George  JIIoo-    <it  m^imut* 


'  The  abore  information  wss"  given  voTantari- 
Iv  beforr  me,  and  signed   id  mypresenreby 
f  Scott.  J,  W&ston/ 

Ind  thi«  jurnrt  further  aay,  that  on  the  Glh 

Mibcr  1762,  Ibe  said  information  wss 

■»  the  earl  of  H.  and   thereupon  the 

itiidthen  makesod  issiue  hiM  warrant  di* 

lo  tli«  difoidMlts,  then  and  stdl  being 


*  lagu  Jin II k»  earl  of  Halifax,  vis-     XnuirVftS 

*  count Sunbury, and  baron  Halifasf,     Ji'i'JJJ^'** 
I  ^  one  of  the  lords  of  his  inajc*;ly*a 

'  honourable  privy  CO  unci  If  lieutenant  general  of 

*  hia  majesty 'a  forces,  lord  lieutenant  tr^nfral 

*  and  general  governi»r  of  the  kingdom  of  Ire- 
<  land,  and  princij»al  secretary  of  slate,  Sce^ 
'  these  are  in  his  majesty's  name  to  authorize 

*  and  ret|uire  you,  taking  a  constable  to  your 

*  assistance,  to  make  strict  and  diligent  Sfrarcb 

*  for  John  Entiek,  the  author,  or  one  concerneil 

*  in  writing  of  s:ever«l  weekly  *ery  seilifiuus 

*  papers,  infilled  the  Monitor,  or  IintiKli  Free- 

*  holder,  N" 557,  358,  3G0,  373,  376,  37tJ,  379, 

*  and  380,  London,  printed  for  J*  Wihon  and 
'  J.  Fell  in  Pater  Noster  Row,  which  contaio 

*  gross  and  scandalous   reflections  »iid  invec- 

*  tives  upoo  his  majesty *s  ^^overnment,  and 
*'  upon  both  houses  of  parliament  ;   sncl  him, 

*  having  found  you  are  to  seiitcand  apprehend, 

*  and  to  bring,  together  with  his  books  and 
'  paperv,  in  safe  cuslody  before  me  lo  be  ejta* 

*  mined  concerning  the  premisses,  and  further 

*  dealt  with  acconfing  to  law  ;  in  the  due  exc- 

*  cution  whereof  all  mayors,  sherifra,  justicet 

*  of  the  peace,  constables,  and  other  his  majes- 

*  ty's  officers  civil  and  military,  and  loting  sub- 

*  jecta  whom  it  m«y  concern,  are  to  he  aiding 

*  and  asBiKting  lo  jon  as  there  shall  be  occa* 

*  sion  ;  and  for  so  doing  this  shall  be  your  war- 

*  rani.     Given  at  8t.  James's  the  t»th  day  of 

*  N«»vember  17(J2,  in  the  third  year  of  his  ma- 
«jesty*s  reign,  l>unk    Halifai:,     To  Natlian 

*  Carrington,  James  Watson,  TliomaB  Anlrtn 

*  and  Robert  Blackmore,  four  of  his  oij^esty** 

*  messengers  in  ordinary.'  And  the  jurOfB 
further  say,  the  earl  caused  this 
warrant  to  be  delivered  to  the  de^ 
fendants  to  lie  executed.  And 
thot  the  defendants  afterwards  on 
the  IJlh  of  November  176'i,  at 
11  o'clock  in  the  day  time,  by 
virtue  and  for  ext'cutmri  of  the  ^i 
warrant,    but   without    any   con« 

stable  taken  by  ihfm  to  their  assistance,  eti< 
lered  the  house  of  the  plaintiff,  the  outer  door 
tlieri'of  Iwing  oj>en»  and  the  plaintill  being 
therein,  to  search  for  and  sme  the  plaintiff 
and  his  Imoks  nnd  papers,  in  order  to  bring 
him  ami  Lliein  before  the  carl,  accurdinjr  to  tl*e 
%vnrrant;  and  the  defendants  did  then  find  the 
platniifi  there,  and  did  sriae  and  apprehend 
bim,  and  did  Iheie  si^arch  for  hi^  books  and 
papers  ui  several  n^omft  and  in  the  house,  eud 
in  one  fjurfftu,  one  wrijing  desk,  and  aerrral 
drawers  of  the  plaintiff  there  in  order  to  find 
and  seize  the  84iuii*,  nnd  bring  them  along  witd 
the  plaintiffMorc  the  carl  according  tothe  war* 
rani,  and  did  then  find  j^    '  **  resomcofthe 

books  «nd  papers  td'  iIh  nd  peru^rd  antl 

rend  over  several  oiIk*  v-*  in*  papers  whicU 
they  fciund  in  tlie  b4jU3e,  and  cuo 


rttlifervd  W 

diKiB  va  be 
rxerulediVli* 

u(i  U I  h  of 


iioae  to  read^ 


10333 


6  GEORGE  lU. 


The  Case  qfSamre  ofPapert 


[1036 


and  that  they  necessarily  continued  there  in  i 
the  execution  of  the  warrant  four  hours,  and  i 
disturbed  the  plaintiff  in  bis  house,  and  then  ; 
took  him  and  nis  said  books  and  papers  from 
thence,  and  forthwith  gave  notice  at  the  ofBce 
of  the  said  secretary  of  state  in  Westminster  I 
unto  Lovel  Stanhope,  esq.  then  before,  and  ' 
still  being  an  assistant  to  the  earl  in  the  exa- 
and  carried  oatious  of  pcrsous,  books  and  pa- 
*c.  tTiSUi  pers  seized  by  virtue  of  warrants 
Si"cSS'  ^^  issued  by  secretaries  of  state,  and 
who  is^aiA  also  then  and  still  beincf  a  justice  of 
Sifoificebr  peace  ft>r  the  city  and  liberty  of 
the  ^•"'j^J^j  VVestminster  and  county  of  Middle- 
JamV)^'*  sex,  of  their  having  seized  the 
cceofptace.  plaintiff,  his  books  and  papers,  and 
of  their  having  them  ready  to  be  examined, 
and  they  then  and  there  at  the  instance  of  the 
said  Lovel  Stanhope  delivered  the  said  books 
and  papers  to  him.  And  the  jurors  furtlier 
say,  Uiat,  on  the  ISth  of  April  in  the  first  year 
of  the  king,  his  maiesty,  by  his  lettei*s  patent 
under  the  great  seal,  gave  and  granted  to  the 
said  Lovel  Stanhope  the  office  of  law-clerk  to 
the  secretaries  of  state.  And  the  king  did  there- 
by ordain,  constitute  and  appoint  the  law-clerk 
.  to  attend  the  offices  of  his  secretaries  of  state, 
in  order  to  take  the  depositions  of  all  such  per- 
sons whom  it  may  be  necessary  to  examine 
upon  affairs  which  might  concern  the  public, 
£(c.  (and  then  the  verdict  sets  out  the  letters 
patent  to  the  law- clerk  in  hac  verba)  as  by  the 
fetters  patent  produced  in  evidence  to  the  jurors 
appears.  And  the  jurors  further  say,  that 
Lovel  Stanhope,  by  virtus  of  the  said  letters 
patent  long  before  the  time  when,  &c.  on  the 
13th  of  April  in  the  first  year  of  the  king  was, 
and  ever  since  hath  been  and  still  is  law -clerk 
to  the  king's  secretaries  of  state,  and  hath  exe- 
Tiiat  the  like  cuted  that  office  all  the  time.  And 
warrmnii  lure  the  j^urors  further  say,  that  at  dif- 
the^er'Sa-  fereut  timcs  from  the  time  of  the 
tioiu  Revolution  to  this   present  time, 

the  like  warrants  with  that  issued  against  the 
plaintiff,  have  been  frequently  granted  by  the 
secretaries  of  state,  and  executed  by  the  mes*> 
sengers  in  ordinary  for  the  time  being,  and 
that  each  of  the  defendants  did  respectively 
take  at  the  time  of  being  appointed  messengers, 
the  usual  oath,  that  he  would  be  a  true  servant 
to  the  king,  &c.  in  the  place  of  a  messenger  in 
Thai  no  de-  ordinary,  &c.  And  the  jurors  fur- 
made  bf  tner  say,  that  no  demand  was  ever 

Jipy  of  thi  '  «n*<Je  «»•  left  at  the  usual  place  of 
Ja"T\'  Iff  *^o*le  of  the  defendants,  or  any  of 
briDih'iac-  them,  by  the  plaintiff,  or  hisat- 
•ixm*onthi  torney  or  agent  in  writing  of  the 
after  the  facts  perusial  and  copy  of  the  said  war- 
fe°Ddinuu  **",  rant,  SO  issued  against  the  plaintiff 
as  aforesaid,  neither  did  the  plaintiff  commence 
or  bring  his  said  action  against  the  defendants, 
or  any  of  them,  within  six  calendar  months 
nexi  at\er  tlie  several  acts  aforesaid,  and  each 
of  them  were  and  was  done  and  committed  by 
them  as  aforesaid;  but  whether,  upon  the 
whole  matter  as  aforesaid  by  the  jurors  found, 
iht  sakl  defeodanti  are  guilty  of  the  trespass 


herein  before  particularly  specified  io  breaking 
and  entering  the  house  of  the  plaintiff  in  the 
declaration  mentioned,  and  continuing  there 
for  four  hours,  and  all  that  time  disturbing  the 
plaintiff  in  the  possession  thereof,  and  searching 
several  rooms  therein,  and  one  bureau,  one 
writing  desk,  and  several  drawers  of  the  plain- 
tiff in  his  house,  and  reading  over  and  examin- 
ing several  of  bis  papers  there,  and  seixioir, 
taking  and  carrying  away  some  of  his  books 
and  papers  there  foiwd ;  or  the  g^^;.,,^ 
said  plaintiff  ought  to  maintain  his  dKtcaKr.:te 
said  action  against  them  ;  the  *i^\i^' 
jurors  are  altogether  ignorant,  and 
pray  the  advice  of  the  Court  thereupon.  And 
if  upon  the  whole  matter  aforesaid  by  the 
jurors  found,  it  shall  seem  to  tlie  Court  thatlhs 
defendants  are  guilty  of  the  said  trespass,  ami 
that  the  plaintiff  ought  to  maintain  his  adioB 
against  ^hem,  the  jurors  say  upon  tlieir  sud 
oath,  that  the  defendants  are  guilty  of  the  slid 
trespass  in  manner  and  fi)rm  as  the  plaintiff 
liuth  thereof  complained  agaiust  them;  and 
they  assess*  the  damages  of  the  imeimim 
plaintiff  by  occasion  tliereof,  be-  *^ 
sides  bis  costs  and  charges  by  him  about  bif 
suit  in  this  behalf  laid  but  to  300/.  and  inr 
those  costs  and  charges,  to  40f .  But  if  npas 
the  whole  matter  by  the  jurors  found,  it  shall 
seem  to  the  Court  that  the  said  defendanU  tie 
not  guilty  of  the  said  trespass ;  or  that  the 
plaintiff  ought  not  to  maintain  his  action  agaistf 
them ;  then  the  jurors  do  say  upon  their  Oitk 
that  the  defendants  are  not  guilty  of  the  lud 
trespass  in  manner  and  form  as  the  plaiodff 
hath  thereof  complained  against  them. 

**  And  as  to  the  last  issue  on  the    ii,e  i.«  ia« 
second  special  justification,  the  jury    ^^,ff 
found  for  the  plaintiff,  that  the  de-     ***'*' 
fendants  in  their  own  wrong  broke  and  entered, 
and  did  the  trespass,  as  the  plaintiff  in  his  re- 
plication lias  alleged.'' 

This  Special  Verdict  was  t\«ice  solemnly  ir^ 
gued  at  the  bar  ;  in  Easter  Term  last  by  se^ 
jeant  Leigh  for  the  plaintiff,  and  Burlantl,  one 
of  the  king's  Serjeants,  for  the  defendants ;  and 
in  this  present  term  by  Serjeant  Glynn  for  the 
plaintiff,  and  Nares,  one  of  the  king's  serjeanti* 
for  the  defendants. 

Easter  Terrriy  5  Geo.  3. 

Counsel  for  the  Plaintiff,  At  the  trial  of  tbif 
cause  the  defendants  relied  upon  two  defences; 
1st,  That  a  secretary  of  state  as  a  justice  ar 
conservator  of  the  peace,  and  these  messen;^ 
acting  under  his  warrant,  are  within  the  sta- 
tute of  the  2 1th  of  Geo.  2,  c.  44,  which  enacts, 
(among  other  things)  that  *  no  action  shall  bs 

*  brought  against  any  constable  or  other  offiosfi 

*  or  any  person  acting  by  his  order  and  in  hit 

*  aid,  for  any  thing  done  in  obedience  to  the  wsr- 

*  rant  of  ajustice,  until  demand  hath  been  maie 

*  or  leA  at  the  usual  place  of  his  abode  by  ths 

*  party,  or  by  his  attorney  in  writing  signed  faf 

*  the  party,  demanding  the  same,  ctr  the  ptnHsl 
(  and  copy  of  such  warrant,  and  the  same  htnk 
<  been  refused  or  neglected  for  six  days  i  ' 


1037J 


Enfick  V.  Carringioil* 


A.  D.  1765. 


[1038 


such  demand,*  and  that  no  demand  was  ever 
nade  by  the  plaintiff  of  a  perusal  or  copy  of 
he  warrant  in  this  case,  according  to  that 
itatnte,  and  therefore  he  shall  not  have  this 
iction  apfainst  the  defendants,  who  are  merely 
ninisterial  officers  acting  under  the  secretary 
if  state,  who  is  a  jiitstice  and  conserfator  of  the 
leace.  2dly,  That  the  warrant  under  which 
he  defendants  acted,  is  a  Ic^l  warrant,  and 
hat  they  well  can  justify  what  they  have  done 
IV  virtue  thereof,  for  that  at  many  different 
lines  from  the  time  of  the  Revolution  till  this 
ime,  the  like  warrants  with  that  issued 
tgainst  the  plaintiff  in  this  case  have  been 
pranted  by  secretaries  of  state,  and  executed 
ij  the  messengers  in  ordinary  for  the  time 
pciog. 

As  10  the  first.  It  is  most  clear  and  mani- 
est  apon  this  verdict,  that  the  earl  of  Ilahfax 
icted  as  secretary  of  state  when  he  granted  the 
ranrant,  and  not  merely  as  a  justice  of  the 
leaoe,  and  therefore  cannot  be  within  the  sta- 
nte  94  Geo.  2,  c.  44,  neither  would  be  be 
rithiD  the  statute  if  he  was  a  conservator  of 
he  peace,  such  person  not  being  once  named 
herein ;  and  there  is  no  book  in  the  law  what- 
¥er,  -  that  ranks  a  secretary  of  state  quasi 
e<rretmry ,  among  the  conservators  of  the  peace. 
iambert.  Coke,  Hawkins,  lord  Hale,  &c.  &c. 
«>De  of  them  take  any  notice  of  a  secretary 
tf  state  being  a  conservator  of  the  peace,  and 
loCil  of  late  days  he  was  no  more  indeed  than 
mere  clerk.'     A  conservator  of  the  peace  had 

0  more  power  than  a  constable  has  now,  who 

1  a  conservator  of  the  peace  at  commou  law. 
kt  the  time  of  making  this  statute,  a  justice  of' 
eaoei  conitable,  headborou^h  and  other  officers 
f  the  peace,  borbholders  and  tithingmen,  as 
rell  as  secretary  of  state,  conservator  of  the 
leace,  and  messenger  in  ordinary,  were  all 
rery  well  known ;  and  if  it  had  been  the  intent 
if  toe  statute,  that  a  secretary  of  state,  cooser* 
ratsr  of  the  peace,  and  messenger  in  ordinary, 
diovid  have  iieen  within  the  statute,  it  would 
bave  mentioned  all  or  some  of  them ;  and  it 
lol  having  done  so,  they  cannot  be  within  it. 
i  messenger  certainly  cannot  be  within  it,  who 
iB'iiotbiDg  nuire  than  a  mere  porter,  and  lord 
Halifax's  footmen  might  as  well  be  said  to  be 
»flioers  within  the  statute  as  these  defendants. 
Besides,  the  verdict  finds  that  these  defendants 
eiscated  the  warrant  without  taking  a  constable 
to  their  assistance.  This  disobedience  will  not 
mly  take  them^out  of  the  protection  of  the 
tttUite,  (if  they  had  been  within  it),  but  will 
ibo  disable  them  to  justify  what  they  have 
done,  by  any  plea  whatever.  The  office  of 
these  defendants  is  a  place  of  considerable 
profit,  end  as  unUke  that  of  a  constable  and 
tilbiogmaa  as  can  be,  which  is  an  office  of 
bmlhen  and  ezpence,  and  which  he  is  bound  to 

e  in  person,  and  cannot  substitute  another 

a,  though  he  may  call  persons  to  as- 

.     1  Hale's  P.  C.  581.    This  warrant 

like  e  warrant  to  search  for  stolen 

|Mds  end  to  seise  them,  than  any  other  kind  of 

varnuiti  which  ought  to  be  directed  to  con- 

8 


stables  and  other  public  officers  which  the  law 
takes  notice  of.  (4  lust.  176.)  3  Hale's  P. 
C.  149,  1^.  How  much  more  necessary  in 
the  present  case  was  it  to  take  a  constable  to  the 
defendants'  assistance.  The  defendants  have 
also  disobeyed  the  warrant  in  another  matter : 
being  commanded  to  bring  the  plaintiff,  and 
his  books  and  papers  before  lord  Halifax,  they 
carried  him  and  them  before  Lovel  Stanhope, 
the  law-clerk  ;  and  though  he  is  a  justice  of 
the  peace,  that  avails  nothing;  for  no  single 
justice  of  peace  ever  claimed  a  right  to  issue 
such  a  warrant  as  this,  nor  did  he  act  therein 
as  a  justice  of  peace,  but  a^  the  law-clerk  to 
lord  Hslifax.  The  information  was  made 
before  justice  Weston.  The  secretary  of  state 
in  this  case  never  saw  the  accuser  or  accused. 
It  seems  to  have  been  below  his  dignity.  The 
names  of  the  officers  introduced  here  are  not  to 
be  found  in  the  law-books,  from  the  first  year- 
book to  the  present  time. 

As  to  the  second.  A  power  to  issne  such 
a  warrant  as  this  is  contrary  to  the  genius  of 
the  law  of  England ;  and  even  if  they  had  found 
what  they  searched  for,  they  could  not  have 
justified  under  it.  But  they  did  not  find  what 
they  searched  for,  nor  does  it  appear  that  the 
plaintiff  was  the  author  of  any  of  the  supposed 
seditions  papers  mentioned  in  the  warrant ;  so 
that  it  now  appears  that  this  enormous  trespass 
and  violent  proceeding  has  been  done  upon  mere 
surmise.  But  the  verdict  says,  such  warrants 
have  been  granted  by  secretaries  of  state  ever 
since  the  Revolution.  If  tliey  have,  it  is  high 
time  to  put  an  end  to  them  ;  for  if  they  are 
held  to  be  le^al,  the  liberty  of  this  country  is  at 
an  end.  It  is  the  publishing  of  a  libel  which  is 
the  crime,  and  not  the  having  it  locked  up  in  a 
private  drawer  in  a  man's  study.  But  if  having 
it  in  one's  custody  was  the  crime,  no  power 
can  lawfully  break  inU#  a  man's  bouse  and 
Study  to  search  for  evidence  against  him.  This 
would  be  worse  than  the  Spanish  inquisition ; 
for  ransacking  a  man's  secret  drawers  and 
boxes,  to  come^  at  evidence  against  him,  is 
like  racking  his  body  to  come  at  his  secret 
thoughts.  The  warrant  is  to  seize  all  the 
plaintiff's  books  and  papers  without  exception^ 
and  carry  them  bef<»re  lord  Halifax.  What  ? 
Has  a  secretary  of  state  a  right  to  see  all  a  roan's 
private  letters  of  correspondence,  family  con- 
cerns, trade  and  business  f*  This  would  be 
monstrous  indeed  I  and  if  it  were  lawful,  no 
man  could  endure  to  live  in  this  country.    In 

*  Mr.  Burke  in  his  Short  Account  of  a  late 
short  Administration,  (this  administration  came 
into  employment  under  the  mediation  of  the 
duke  of  Cumberland,  son  to  George  the  second^ 
in  July  1765,  and  was  removed  in  July  1766 : 
during  its  continuance  in  office  the  marquis  of 
llockingham  was  First  Lord  of  the  Treasury, 
and  Mr.  Dowdeswell  Chancellor  of  the  Exche* 
quer)  says,  «  The  lawful  secrets  of  business 
and  friendship  were  rendered  inviolable  by 
the  Resolution  for  condemning  the  scisure  of 
papers.'     See  New  Pari.  Hist.  vol.  16,  p.  207» 


1039] 


6  GEORGE  m. 


The  Case  of  Seizure  nfPapen-^ 


IIQIO 


the  case  of  a  search-warrant  for  stolen  gfoods,  it 
is  never  piinted,  but  upon  the  strongest  evi- 
dence that  a  felony  has  been  committed,  and 
that  the  goods  are  secreted  in  such  a  house ; 
and  it  is  to  seize  such  goods  as  were  stolen,  not 
all  the  goods  in  the  house ;  but  if  stolen  goods 
are  not  found  there,  all  who  entered  with  the 
warrant  are  trespassers.  However  frequently 
these  warrants  have  been  granted  since  the  Re- 
▼olutioB,  that  will  not  make  them  lawful ;  for 
if  they  were  unreasonable  or  unlawful  when 
firsr  grranted,  no  usage  or  continuance  can 
make  them  good.  Even  customs,  which  have 
been  used  time  out  of  mind,  have  been  often 
adjudged  .voiJy  » l^tng  unreasonable,  contrary 
to  common  right,  or  purdy  against  law,  if 
Qpon  considering  their  natare  and  quality  they 
•ball  be  found  iqjnrious  to  a  multitude,  and 
prejudicial  to  the  commonwealth,  and  to  have 
their  commencement  (for  the  most  part)  through 
the  oppression  and  extortion  of  lords  and  great 
men.  Davis  82  b.  These  warrants  are  not 
by  custom ;  they  go  no  farther  back  than 
eighty  years;  and  most  amazing  it  is  they 
have  never  before  this  time  been  opposed  or 
controverted,  considering  the  great  men  that 
have  presided  in  the  Kinir's-bench  since  that 
time.  But  it  was  reserved  for  the  honour  of 
this  Court,  which  has  ever  been  the  protector 
of  the  liberty  and  property  of  the  subject,  to 
demolisb^  this  monster  of  oppression,  and  to 
fear  into  rags  this  remnant  of  Star-chamber 
tyranny. 

Counsel  for  the  Defendants.  I  am  not  at  all 
alarmed,  if  this  power  is  established  to  be  in 
the  secretaries  of  state.  It  has  been  used  in 
the  best  of  times,  often  since  the  Revolution.  I 
shall  argue,  first,  that  the  secretary  of  state 
has  power  to  grant  these  warrants ;  and  if  I  can- 
not maintain  this,  I  must,  secondly,  shew  that 
by  the  statute  24  Geo.  2,  c.  24,  this  action  does 
not  lie  against  the  defendants  the  messengers. 
1.  A  secretary  of  state  has  the  same  power  to 
commit  for  treason  as  a  justice  of  peace.  Ken- 
dall and  Roe,*  Skin.  596.  1  Salk.  346,  S.  €.  1 
lord  Rayro.  65.  5  Mod.  78,  S.  C.  Sir  William 
Wyndham  was  committed  by  James  Stanhope, 
secretary  of  state,  to  the  Tower,  for  high  trea- 
son the  7th  of  October,  1715.  8ee  the  case  1 
Stra.  2.  And  Serjeant  Hawkins  says,  it  is  cer- 
tain, that  the  privy  council,  or  any  one  or  two 
of  them,  or  a  secretary  of  state,  may  lawfully 
cominitf  persons  for  treason,  and  for  other 

*  See  this  Case,  in  vol.  12,  p.  1299. 
f  With  respect  to  the  power  of  a  secretary 
of  state  to  commit,  see  the  Cases  of  Wilkes, 

fc982,  of  this  volume,  and  of  Leach  against 
oney  and  others,  p.  1002  of  this  volume. 
*<  If  we  are  to  learn  from  the  records  in  courts 
of  justice,  and  from  the  received  practice  at  all 
times  what  is  the  law  of  the  land,  I  have  no 
difficulty  in  saying  that  the  secretaries  of  state 
have  the  right  to  commit  This  right  was  not 
even  doubtM  by  lord  Camden,  who  expressed 
j#^Tiai  ioxiety  for  the  liberty  of  the  subject  ae 


offences  against  the  state,  as  in  all  agei  they 
have  done.  2  Hawk.  P.  C.  117,  aecl.  4.  1  Leon: 
70,  71.  Carth.  291.  2  Leon.  175.  If  it  iadear 
that  a  secretary  of  state  may  cosimit  for  trea- 
son and  other  offences  against  the  state,  be  cer^ 
tainly  may  oommit  for  a  seditioiis  libel  against 
the  government;  for  there  can  hardly  be  a 
greater  offence  against  the  state,  ezo^t  actual 
treason.  A  secretary  of  state  is  within  the 
Habeas  Corpus  Act.  But  a  power  to  commit 
without  a  power  to  issue  his  warrant  to  aeisa 
the  offender  and  the  libel  would  be  nothing ;  ss 
it  must  be  condoded  that  he  has  the  same 
power  upon  information  to  issue  e  warrant  ts 
search  for  and  aeize  a  seditious  libet,  and  ill 
author  and  publisher,  as  a  justice  of  peaoebss 
for  granting  a  warrant  to  search  for  stolen  goods, 
upon  an  information  that  a  theft  has  been  eom- 
mitted,  and  that  the  goods  are  concealed  in  soch 
a  place ;  in  which  case  the  constables  aad 
officers  assisting  him  in  the  search,  mav  kesk 
open  doors,  boxes,  &c.  to  come  at  such  sbrfsa 
goods.  Supposing  the  practice  of  graatiBg 
warrants  to  search  for  libdb  againat  the  slate  bs 
admitted  to  be  an  evil  in  particular  cases,  yet  ts 
let  such  libellers  escspe,  who  endeavoar  tOMs 
rebellion,  is  a  greater  evil,  and  may  be  codh 
pared  to  the  reason  of  Mr.  Justice  Foster  inths 
Case  of  Pressing,  [Yol.  18,  p.  1323,]  wheie  W 
sAys,  <  That  war  is  a  great  evil«  bat  it  is  ebon 
to  avoid  a  greater.  The  practice  of  pressing  ii 
one  of  the  miscbiefii  war  nrings  with  it ;  b^it 
is  a  maxim  in  law  and  good  policy  too,  that  si 
private  mischiefs  most  be  borne  with  palimct^ 
for  preventing  a  national  calamity,  &c' 
2.  Supposing  there  is  a  defect  of  iarisdioliia 
'eMdan 


in  the  secretary  of  state,  yet  the  del 
within  the  stat.  24  Geo.  2,  c.  44,  and  thsagb 
not  within  the  words,  yet  they  are  within  ibe 
reason  of  it.  That  it  is  not  unusual  in  acts  cf 
parliament  to  comprehend  by  oonstnictisa  t 
generality,  where  express  mention  is  osadeoiilf 
of  a  particular.  The  statute  of  CircwmspecU 
a  gat  is  concerning  the  bishop  of  Norwich  si* 
teuds  to  all  bishops.  Fitz.  rrohibitioa  3,  sad 
2  inst.  on  this  statute,  25  Edw.  3,  e.  cmUs 
the  incumbent  to  plead  in  quart  itMpedit,i»tht 
kino^'s  suit.  Tiiis  also  extends  to  the  seits  si 
ail  iiersons,  38  £.  3,  31.  The  act  1  Ric.  2,  or- 
dains that  the  waiden  of  the  Fleet  aball  aft 
permit  prisoners  in  execution  to  g^  out  of  pri- 
son by  bail  or  baston,  yet  it  is  adjudged  tbsi 
this  act  extends  to  all  gaolera.  Plowd.  CO0. 
case  of  Piatt,  35  b.  The  stat.  de  donis^am^ 
ti0nalibus  extends  to  all  other  limitations  in  tsl 
not  there  particularly  mentioned,  and  the  lib 
construction  has  been  put  upon  several  otbff 


any  man  ;  indeed  it  has  been  thoogfat  by  asas 
persons  eminent  in  our  possession,  who  bsfs 
considered  the  point  since,  that  he  rather  ov*^ 
stepped  the  line  of  the  law  in  the  Case  ef  Bi 
V.  Wilkes,  and  certainly  if  that  judgmem  oi 
be  supported,  many  other  oases  ttiat  have  ktm 


solemnly  determined,  cannot  be  reeoaciM  wiib 
it."  Per  lord  Kenyoo,  C.  J.iothe  CmsT *§ 
King  against  De^ard,  7  T,  iUp.  feU 


101 1] 


£nikk  p.  Carrlngim* 


A,  D.  1765. 


[1W8 


Mf  iiltx.  Tbo.  JouM  62.  Tlie  sUt.  7  Jnc.  1, 
c.  5«  ih<^  wforil  *  coiisltkble*  therein  extendi  to  % 
liejiiKv  const iilil«f<  Moor  845.    The^ie  rneMCii* 

Serf  in  »»r<liiiary  Via^fe  ul>*'«j»  bt^en  conti* 
Cffil  BH  ofliccTB  of  the  secretnry  of  utate, 
afKl  A  enmmitmetit  may  be  to  their  ciistoily,  as 
iti  sir  \V.  Wyndham's  case,  A  justice  of  pt'«ce 
may  make  a  constable  vro  hoc  vtce  lo  execute 
A  Httrrjiitti  who  wotilii  be  within  the  itkt.  24 
Citio.  i.  So  if  ihese  ilefendnnts  nre  not  conMa- 
tiles,  3et  as  officers  they  have  power  lo  execute 
a  w&rrant  of  a  justice  of  peace.  A  constable  may, 
but  cannot  tie  com|>eHefl  to  execute  a  warriini 
out  of  his  jurisdicliot).  Officers  acting'  under 
colour  of  office^  iboui^h  doing*  an  ille|^al  act,  are 
irithin  this  statute.  VtiUi^b.  113.  Ho  that  node- 
iin  *  *  /  ever  l>eeu  maiie  of  the  wakrani» 
ti  commenced  within  six  monihs, 
pijiijuii  haa  no  right  of  action.  U  vvas 
f,  Umt  a  conferva  tor  of  the  peace  bad  m* 
povrcr  than  a  constable  haa  nonr.  I 
answer,  Ihey  had  poner  to  bind  over  at 
cnuimou  tiiw^  hut  a  Lonatablc  luxa  not.  Dal- 
ti»i|  cap    L 

poiffiff/  /or  the  Fiainitff'f  In  reply.     It  is 

d,  thiji  iiAs  been  done  ia  the  best  of  ttcnes 

efttr  fiuce  the  RcTolutioiit  The  cooclusion 
from  thence  is,  that  it  is  tbl^  more  jnexcusa()1e, 
tie«!ause  done  in  the  best  of  lameSf  to  an  tera 
wbcu  llt«  common  law  (which  had  been 
kiiipifd  under  the  foot  nf  arbitrary  power)  was 
Vtvied.  VVc  do  not  deny  but  the  secretary  of 
jitc  hath  power  to  commit  for  treason  and 
other  offence  against  the  i»tate  ^  bnt  tlt.it  \s 
;  the  present  cu^e,  which  is  breaking  rnto  the 
(  of  a  aubjf^ct,  breaking  into  his  drawers 
boxei,  rausHcking^  all  the  moms  in  hi.«i 
tiouse,  and  prying  into  all  hin  private  af}*airs. 
But  it  i«  naidp  if  the  secretary  of  state  has 
powcjr  to  commit,  he  has  power  to  aearchf  !kc, 
n%  to  thcr  ca»e  of  stolen  g^ofjds.  This  is  a  false 
c(itt5iHpjence«  and  it  inig'ht  as  well  Ik;  &aid  he 
htf  a  jiower  to  torture,  As  to  Hlolen  goods,  if 
ih<*  orficers  find  nonr,  have  they  a  ri^lit  to  tak" 
ftway  a  man^ft  (foods  whicli  were  not  stolen  ? 
f'rrs^iog^  is  suid  to  be  a  dangerous  power,  and 
jel  t(  biiy  Ii4*en  allowed  for  the  bt^nefit  of  the 
atat4^.     Out  111  '  'v   the  itrgumeTit  and  opi- 

oinn  of  a  ni:  ,  from  iincient  history 

■n*'  — -I-  n,  ii„.,,  ^Uien  the  lower  part  of 
lh'  were  little  better  than  slaves  to 

Ihi .;  -  ;jtl  ^rpui  m^'n*  and  has  not  been  al- 

liiwcil  In  ht  luvfhil  ivitliMiii  un  act  of  pinliument 
•incr  the  lime  of  the  Kivolutioii.  The  utat. 
%i  Uro*  3t  has  been  compared  to  ancient 
I  #|gtnti^,  niimint;;  particular  persons  and  dts- 
havc  hepu  construed  lo  extend  to 
not  named  therein ;  and  so  the 
vlt  no  such  officers  are  men - 
l^»  ''On,  are  within  the  sUlnte  of 

U4  t  knows  no  audi  ofiiccrs 

mm  iry  to  the  kintf.     It  it 

m  *".■:';-.  'Mu- 

Bti'  iL-y 

Alt'     ttwfc     iiiviitiiiiM.il     iijiicni,  ijilt',     Uill     that 

fftainte    was  inad«    to    prot^t    lb«   louoccnl 


tj^ainst  illegal  and  arbitrary  power.  It  is  aaidf  i 
111 e  secretary  of  state  is  a  justice  of  peace,  anil  1 
llie  mesaen|rrers  are  his  officers.  Why  then  did  1 
the  warrant  direct  them  to  take  a  consteble  t»1 
their  aissistaore,  if  they  were  themselves  the] 
proper  officei's?  It  seems  lo  admit  ihey  werftl 
not  the  proper  officers.  If  a  man  he  made  aii  [ 
officer  for  a  special  purpose  to  arrest  anotbcrgj 
be  must  shew  his  authorily  ;  and  if  he  refuse%  t 
it  is  not  murder  to  kill  him.  But  a  constable  or  J 
other  known  officer  in  tbt  law  need  Dot  sbeif  ] 
Ills  warrant. 

Lorif  Chief  Justice,  I  sliall  not  ^ve  any  | 
opinion  at  present,  because  this  case,  which  m\ 
of  the  utmost  consequence  to  the  public,  is  td  t 
be  argued  again.  1  shall  only  just  menlioQ  m  ] 
matter  which  has  slipt  the  sagacity  of  th#| 
counsel  on  both  sides,  that  it  may  be  taken  | 
notice  of  upon  the  next  argument.  Suppose  m  ] 
warrant  which  is  against  law  be  ginnled,  such 
as  no  justice  of  peace,  or  other  magiatrute  hi|;1l  | 
or  low  whomsoever,  has  power  to  issue,  whe- 
ther that  magistrate  or  justice  who  grants  sucU  ' 
warrant,  or  the  ofScer  who  executes  it,  is  wiihiii  I 
tlie  slat.  24  Geo.  2,  c*  44.  To  put  one  cas9| 
(among  an  hundred  that  might  happen) :  sup<« 
pose  a  justice  of  peace  issues  a  warrant  to] 
search  a  hotise  for  stolen  goods,  anil  directs  it ! 
to  four  of  bis  servants,  who  search  and  And  natj 
stolen  goods,  but  seize  all  the  books  and  papers  1 
of  the  owners  of  the  house,  whether  in  such  %.] 
case  would  the  justice  of  peace,  his  officers  or 
servants,  lie  wttliin  the  slat.  ^^  Geo.  S.  ?  i  de«^ 
sire  that  every  point  of  this  case  may 
argued  to  tlii^'  botlom,  for  I  shall  think  my<i«] 
self  bound,  ivhen  I  come  to  give  jinlgrnenl, 
give  uiy  opinion  upon  every  point  in  the  case. 

Mich,  6  Geo,  3. 

Cmmtlf^r  the  Plaint  iff  oo  the  second  argn-* 
ment.  If  ihe  secretary  of  state,  or  a  priv^l 
counsellor,  justice  of  peace,  or  other  inagisw| 
li^te  whatever,  have  no  legal  fiower  to  granl 
the  warrant  in  the  present  case,  it  will  foTlow^,| 
ihat  the  ma^istriite  usurping  surJh  an  ihegafl 
power,  c^n  never  be  cousilrueil  to  be  witlun  thoj 
inisaning  or  reason  of  the  statute  of  24  Geo.  3^ 
c.  41,  which  was  made  to  protect  juNticea 
the  peace,  !kc,  where  they  made  blundera, 
erred  in  judgment  in  ca?^es  ivithin  Ihetr  jurin^ 
diction,  and  not  to  give  them  arbitrary  poweff I 
to  issue  warrants  totally  illegal  from  beginning] 
to  end,  and  in  cat^es  wherein  they  had  no  jurist] 
diction  at  aU«  If  any  such  power  in  a  secret 
tar^'  of  state,  or  a  privy  counsellor,  bad  evej 
existed,  it  would  appear  from  our  law^iooki^l 
All  the  ancient  books  are  silent  on  this  ba 
Lambert  never  once  mentions  a  secreUry 
state.  Neither  he  nor  a  privy  counsel l(»r,  wen 
ever  considerad  as  mngiatmifa.  In  all  the  ar« 
gumenis  touching  the  Btar- Chamber,  and  Pett« 
tioD  of  Right,  nothing  of  this  power  was  eve 
dreamt  of.  8tate-rommitmeiits  ftneientlj 
vrete  eiihtr  per  mandatum  regit  in  person, 
by  warrant  of  several  of  ttie  pri^y  couiv&«W^'c% ' 
in   the    (ilurftl  AvviaW,    1Vi%  V\u%  V>»a  ^^^ 


IMS] 


6  GEORGE  UL 


The  Case  qfSeiMure  qfPaperp 


[10(1 


poirer  in  a  ptrtieidar  mode,  viz.  by  the  advice 
of  his  privy  coandl,  who  are  to  be  answerable 
to  tbe  pccfile  if  wrong  is  done.  He  has  no 
ether  way  bot  in  council  to  signify  bis  man- 
date. Id  tbe  Caae  of  the  Seven  Bishops,  this 
matter  was  insisted  open  at  the  bar,  when  the 
Court  presumed  tbe  commitment  of  them  was 
by  tbe  advice  of  tbe  privy  oooocil ;  but  that  a 
imgle  privy  counsellor  had  this  power,  was 
not  contended  for  by  the  crown-lawyers  then. 
This  Court  will  require  it  to  be  shewn  that  there 
have  been  ancient  commitments  of  this  sort 
Neither  the  secretary  of  state,  or  a  privy  ooun- 
■elior,  ever  daioied  a  right  to  administer  an 
oath,  but  they  employ  a  person  as  a  law-clerk, 
who  is  a  justice  of  peace,  to  administer  oaths, 
and  take  reoogniBaDees.  Sir  Barth.  Shower, 
in  Kendall  and  Roe's  ease,  insisted  they  never 
had  such  power.  It  would  be  a  solecism  in 
our  law  to  say,  there  is  a  person  who  has 
power  to  commit,  and  baa  not  power  to  exa- 
oiine  on  oath,  and  bail  the  ffuiY.  Therefore 
whoever  has  power  to  commit,  has  power  to 
bail.  It  was  a  question  formerly,  wliether  a 
constable  as  an  ancient  conservator  of  the 
peace  should  take  a  recognizance  or  bond.  In 
the  time  of  queen  Elizabeth  there  was  a  case 
wherein  some  of  the  judges  were  of  one  opi- 
nion and  some  of  another.  A  secretary  of 
state  was  so  inconsiderable  formerly,  that  be  is 
not  mentioned  in  tbe  statute  oftcandalum  mag- 
naium.  His  office  was  thought  of  no  great  im- 
portance. He  takes  no  oath  of  office  as  secre- 
tary of  state,  gives  no  kind  of  security  for  the 
exercise  of  such  judicial  power  as  he  now 
vsorps.  If  this  was  an  ancient  power,  it  must 
have  been  annexed  to  his  office  anciently ;  it 
cannot  be  now  given  to  him  by  the  king.  The 
king  cannot  make  two  chief  justices  of  the 
Common-Pleas ;  nor  could  the  king  put  the 
irreat  seal  in  commission  before  an  act  of  par- 
liament was  made  for  that  purpose.  There 
was  only  one  secretary  of  state  formerly :  there 
are  now  two  appointed  by  the  kinsf.  If  they 
have  this  power  of  magistracy,  it  sbould  seem 
to  require  some  law  to  be  made  to  give  that 
power  to  two  secretaries  of  stote  which  was 
formeriy  in  one  only.  As  to  commitments 
per  mandatum  regis,  see  Staunf.  PI.  Coron.  72. 
4  Inst.  c.  5,  court  of  Star-Chamber.  Admit- 
ting they  have  rmwer  to  commit  in  high  trea- 
son, it  will  not  follow  they  have  power  to  com- 
mit for  a  misdemeanor.  It  is  of  necessity  that 
they  can  commit  in  high  treason,  which  re- 

a  aires  immediate  interposition  for  the  benefit  of 
le  public.  In  the  case  of  commitment  by 
Walsingbam  secretary  of  state,  1  Leon.  71,  it 
was  returned  on  the  Habeas  Corpns  at  last, 
that  the  party  was  committed  «  ex  sententia  et 
•  mandate  totius  coDcilii  privatidominaereginee.' 
Because  he  found  lie  had  not  that  power  of 
himself,  he  had  recourse  to  the  whole  privy 
council's  power,  so  that  this  case  is  rather  for 
the  plaimiif.  Commitment  by  tbe  High  Com- 
mission Court  of  York  was  declared  by  pariia- 
nent  illegal  from  the  beginning ;  so  in  the  Case 
efShip-Mooej  theparliament  Adarodit  ill^. 


Caunul  far  the  DefendanUM  «i  the  seoond 
argument.  Tbe  most  aUejudges  and  advocates, 
ever  since  tbe  Revolution,  seem  to  have  agreed, 
that  the  secretaries  of  state  have  this  power  to 
commit  for  a  misdemeanor.  Secretaries  of 
state  have  been  kxiked  upon  in  a  varr  high 
light  for  two  hundred  years  past.  S7  H.8,  c 
tl.  Thdr  rank  and  phMse  is  settled  by  31  H. 
8,  c.  10.  4  lust.  369,  c  77,  of  Preccden^.  4 
Inst.  56.  Selden's  Titles  of  Honour,  c.  Offiecrt 
of  State.  So  that  a  secretarv  of  state  is  sosae- 
thing  more  than  a  mere  efcrfc,  as  was  said. 
Minshew  verb.  Secretary.  He  is  *  ^  secretio- 
ribus  consiliis  domini  re^.*  Serieant  Pes- 
gelly  moved,  that  sir  Wilham  Wymfiiam  nuflil 
be  bailed.  If  be  could  not  be  committed  fty 
the  secretary  of  state  for  something  less  tbaa 
treason,  why  did  be  move  to  bave  him  baiM? 
This  seems  a  concession  that  he  might  be  esB* 
mitted  in  that  case  for  something  less  tins 
treason.  Lord  Holt  seems  to  agree  that  i 
commitment  by  a  secretary  of  state  is  gsoi 
Skin.  598.  1  lord  Ray  m.  65.  There  is  si 
case  in  the  books  that  says  in  what  cases  a  »- 
cretary  of  state  can  or  cannot  commit;  1^ 
what  power  is  it  that  he  can  commit  in  the  csN 
of  treason,  and  in  no  other  case  ?  Tlie  rawh* 
tion  of  the  House  ^  Commons  toochi^  tbi 
Petition  of  Right,  [Selden  last  volume,  Arlii- 
mentary  History,  vol.  S,  p.  374.1  Seenluy 
Coke  told  the  Lords,  it  was  his  dntT  to  eon- 
mit  by  tbe  king's  command.  Yozley's  car, 
Carth.  291,  he  was  committed  by  the  secreluy 
of  state  on  the  statute  of  Elizabeth  for  refiMD; 
to  answer  whether  he  was  a  Romish  print 
The  Queen  and  Derby,  Fortescue's  Repsiti, 
140,  the  commitment  was  by  a  secretarv  •( 
state,  Mich.  10  Anne,  for  a  libel,  and  betd 
good.  (Note.  Batburst  J.  said  he  had  sees 
the  Habeas  Corpus  and  the  Return,  and  that 
this  was  a  commitment  by  a  secretary  of  state.) 
The  King  and  Earbury,  Mich.  7  Geo.  9,  S  Bit- 
nard  346,  was  a  motion  to  discharge  a  rcco^:- 
nizance  entered  into  for  writing  a  paper  calM 
Tbe  Royal  Oak.  Lord  Hardwicke  said  itwu 
settled  ill  Kendall  and  Roe's  case,  that  a  secre- 
tary of  state  might  apprehend  persons  sos- 
pected  of  treasonable  practices;  and  there  ait 
a  great  number  of  precedents  in  the  CrowD-«f- 
fice  of  commitments  by  secretaries  of  state  lor 
libels  against  the  government. 


Af\er  time  taken  to  consider.  Lord  Camdes, 
Lord  Chief  Justice,  delivered  tbe  JudgmeSi 
of  tbe  Court  for  the  Plaintiff,  in  the  foUoaiqg 
words: 

X.  C  /.  This  record  hath  set  up  two  de- 
fences to  the  action,  on  both  of  which  the  de* 
feudants  have  relied. 

The  first  arises  from  the  facts  disclosed  m 
the  special  verdict;  whereby  the  defendasH 
put  their  case  upon  the  statute  of  94  Geo.  % 
insisting,  that  they  have  nothing  to  do  withte 
Itgality  of  the  warranU,  but  that  they  onfst 
to  have  been  acquitted  as  offioen  Wtthbi  uf 
meaning  of  that  act. 


I04S]  Emicl  %\  Carnngli 

The  second  defiptice  stands  apon  the  lcf|fafily 

^  the  wBrronU;    for  thitf  heiug^  a  juiititi cation 

al  oomnnon  lair,  the  oHicer  is  aiisvierable  if  the 

,|lligistnite  has  no  juribcllcuoQ, 

^^  These    two    defenceii    have  drawn  several 

^■^iilii  into  i]upJitioD,  upon  which  the  public,  as 

^^ell  u  the  parties,  hare  a  ny^ht  to  our  optoion. 

Under  the  first,  it  is  incunib(»nt  upon  the  of- 

^^sers  to  Bhew,  that  thej  are  ofHcers  utlhin  the 

^Hennini;  of  the  act  of  parliament,  and  iikeviise 

^^pi  they  hftve  acted  in  obedienoe  to  the  war- 

I^C^he  c)uesUon«  whether  of&cere  €r  not,  in- 
^ohrct  another ;  whether  the  secretary  of  state, 
Wbotte  ministers  iliey  are,  can  he  deetned  a 
JQitice  of  tlitf  peace,  or  taken  within  the  equi- 
ty of  the  descripiion  ;  for  officers  and  justices 
ftfe  here  co-relative  terms:  therefore  either 
both  muBt  be  comprised,  or  tK>th  excluded. 

This  question  leads  me  to  an  Inquiry  into  the 
aulhority  of  that  mioisier,  as  he  stands  describ* 
ed  U(H>n  the  record  in  two  capacities,  ris,  secre- 
tary of  state  and  priry  counsellor.  And  sioce 
no  statute  has  conferrnl  any  such  juriidtction 
WM  ihts  before  iis,  it  must  he  g^iiren,  If  it  does 
really  exi»t«  by  the  common  Taw  ;  and  apoa 
tbit  (ground  lie  bos  been  treated  as  a  eonser- 
'  the  peace. 

Batter  thus  opened,  the  questions  that 
ly  arise  upon  the  special  verdict,  are ; 
First,  whether  in  either  of  these  characters, 
or  upon  any  other  foundation,  he  is  a  couser- 
^Hifa  of  the^  peace. 

Secondly,  admitting  hini  to  be  so,  whether 
be  is  wttbni  the  equity  of  the  24lh  Geo.  2. 

These  fioiots  \>tn\^  disposed  of,  the  next  in 

order  is,  wliether  the  defendants  have  acted  in 

Ok^ience  to  the  warrant. 

L^Bgbe  last  place,  the  ^reat  question  upon  the 

^^^^P^on   ^itl  be,   whether  the  warrant  to 

KHRoid  carry  away  the  plaintiti*'8  papers  ii 

kwful. 

FmsT  QtiEsnoN, 

power  of   Uiis  minister,  in   the  way 
trein  it  has  been  usually  exercised,  is  pretty 
dar. 

he  it  considered  iu  the  light  of  a  priry 
oeiior,  sJtbouifh  efery  member  of  that 
'  bonrd  is  equally  entitled  to  it  with  himself,  yet 
Im  ii  tlie  only  iMie  of  that  boJ^  wbo  exerts  it, 
Hit  power  is  so  extensive  m  place,  that  it 
throughout  the  whole  realm  ;  yel  in 
^object  it  ia  so  confined,  thut  exc-ept  in  li- 
and  some  few  state  crimes,  a«  they  are 
d,  the  Mcreiary  of  state  does  not  preteiid 
\  Mllb«rjty  of  a  constable, 
consider  him  as  a  coosertator.  He 
never  binds  to  the  peace,  or  good  beliat tour, 
wbicb  seems  to  have  been  the  principal  duty 
•f  A  «9oinwrr?alur ;  at  least  be  never  docs  it  in 

El  caaea,  where  th^  law  requires  those  sure  - 
But  he  cotiuuiifi  iu  certain  other  ca«es, 
I"  ii  u  very  donhtfut,  whethtfi*  the  conser* 
.  juriidtction  whatever. 
iii«  are  chiefly  exerted  against  It- 
a,  who  ill  be  binds  to  the  lirst  instance  to 

1 


A- a  1765,         [loic 

tlietr  good  behaviour,  which  no  oilier  com 
valor  ever  attempted,  from  the  best  tutdligen 
that  we  can  Jearu  from  our  books* 

And  thouf  h  he  doth  all  these  tln'qgs,  yel^ 
seems  agreed,  that  he  hath  no  power  whatso* 
ever  to  administer  an  oath  or  take  liaiL 

This  Jurisdioiioii,  as  extraordinary  as  I  have 
described  it,  is  so  dark  and  obijcure  in  its  orig'io, 
that  the  counsel  have  not  been  able  to  form  any 
certain  opinion  from  iv  hence  it  sprang*. 

Sometimes  they  uimex  it  to  the  office  of  se- 
cretary of  state,  sometimes  to  the  quality  of 
privy  counsellor;  aud  in  the  last  argument  tt 
nas  been  derived  from  lUe  king's  royal  prero- 
gative to  commit  by  his  own  personal  command. 
Whatever  may  have  been  the  true  source  of 
thb  autliority,  it  must  be  admitted,  that  at  this 
day  he  bin  the  full  legal  exercise  of  it ;  b#* 
cause  there  has  been  not  only  a  clear  practic 
of  it,  at  least  since  the  Revolution,  confirma 
by  a  variety  of  precedents  ;  but  the  authoritj 
has  been  recognized  and  confirmed  by  Xm, 
cases  in  the  very  point  since  that  period  :  an 
theretbre  we  have  not  a  power  to  unsettle 
contradict  it  now,  even  though  we  are  per^ 
suaded  that  the  commencement  of  it  was  ef^ 
roneous. 

And  yet,  though  the  enquiry  I  am  nowupo 
cannot  i»e  alteniled  with  any  consequence 
the  pitblie,  it  is  nevertheless  iDdispensfihle  ;  fa( 
I  shall  trace  the  power  to  its  origin,  in  order  f^ 
determine  whether  the   person  b  within 
equity  of  the  241h  Geo.  %. 

Before  I  argue  upon  that  point,  or  ereu  itj 
the  ouestion,  whether  the  secretary  of  state  fa^ 
wiihui  that  act,  we  must  know  what  be  ii^| 
This  is  no  very  agreeah^  lai^k,  since  it 
possibly  tend  to  create,  in  some  tnindji,  a  doufi 
upon  a  practice  that  has  been  quietly  subtDittf 
to,  and  which  i<$  of  no  moment  to  the  liberty  \ 
the  subject;  for  so  long  ^^  ^^^  proceedlngsl 
under  these  warrants  are  properly  regulateil 
by  law,  the  public  is  very  little  con cf  rued  ii|:| 
the  choice  of  that  person  by  whom  they  air 
issued.  i 

To  proceed  then  upon  tbo  First  Qu<^tioiu| 
antl  to  consider  this  person  in  the  cjpacity  af| 
a  secretary  of  slato. 

This  otficer  is  iu  truth  ifae  kind's  private  tm^i 
cretary.  He  is  keeper  of  the  signet  and  seil] 
tjsed  tor  the  iunif's  private  letters,  and  badif  ^ 
the  sign  manual  in  transmittiug  grants  to  ilit  j 
privy  seal.  This  seal  is  Uken  notice  of  in  th#l 
ArticuU  super  Chartas,  cap.  6,  wid  my  lor4l 
Coke  iu  his  comment  (2  Jn«t.  bhO:)  upon  thi^l 
chapter,  p.  5o6,  describes  the  secretary  ai  |i 
hate  mentioned.  lie  kuv*  he  has  four  clerk%l 
that  sit  at  his  board  ;  and  that  the  Uw  in  aooi^l 
cases  takes  notice  of  the  si|roet ;  lor  a  nt  ejcatJ 
rti^no  may  be  by  coamiaudment  under  llttl 
privy  seal,  or  wCaXft  the  signet ;  and  in  U^ifl 
caiie  thii  stibjcct  ou^ht  to  take  notice  of  it ;  fofl 
it  is  but  »f  sjguiiicatiou  of  the  king's  command^  1 
nient*  U  ut  the  time  my  h>rd  C«»k*'  wrote  liifl 
3d   liiiititute  he  iMid  h<^rn  d  nitli  llif»| 

auihcirity  that  15  now  ascri  secretary^^ 

he  would  certainly  have  mciiuoucii  li  in  lUi& 


1051] 


S  GEORGE  HI. 


The  Case  of  Seizure  qfPaperi^ 


in  this  public  manner,  that  lie  mide  n  daily 
fiFactice  of  t'om milting  fritbout  « hewing  ttie 
cause ;  yet  the  House  takes  no  notice  of  any  se- 
cretary's warmnt  as  eucli,  nor  is  tbe  secretary's 
name  mentioned  in  tbe  course  of  all  tbose  pro- 
ceedings. What  then  vrere  those  cnnimimients 
tnentioned  by  the  secretary  ?  They  were  cer- 
tainly such  oaly^  as  were  *  per  speciale  man- 
*  datum  doinini  regis.*  They  could  be  no  other. 
Tbey  were  tbe  commiliiienis  then  under  de- 
bate* They,  and  tbey  only,  were  referred  fo 
by  tbe  king  s  meEsi^fe,  and  were  consequently 
Ine  subject  matter  of  the  secretary's  apolofry  ; 
lor  no  other  warrant  claimed  that  extraordinary 
prifilegpe  of  concealing  the  cause. 

Tbia  obaervatton  explains  him,  when  he  calls 
it  a  power  comnjitted  to  biin  ;  which  I  con- 
strue, not  as  auneve*l  to  bis  office,  but  specially 
delegated.  This  accounts  too  for  his  notioDi 
that  tbe  taw  could  not  touch  him  ;  but  that  if 
h€  abused  his  trust,  he  should  lose  his  ciedit 
witb  the  king  and  bis  place,  which  be  describes 
at  a  heavier  punishment  than  tbe  law  could 
iaflict  npou  bim.  Upon  this  ground  it  will  be 
easy  to  explain  tbe  notable  singularities  nf  tbis 
minister^!!  proceeding,  which  ai-e  not  to  be  re- 
conciled to  any  idea  of  a  common^law  magis- 
trate. Sucb  are  bis  meddling  only  with  a  few 
state- offences,  bis  reach  over  the  whole  king- 
dom, bis  committing  without  tbe  power  of  ad- 
ministering an  oath,  his  employ ment  of  none 
but  the  messenger  of  tbe  king^s  chamber,  and 
his  command  to  mayors,  justices,  sberifils,  6cc. 
to  assist  him  ;  all  which  particularities  are  con- 
gruous enough  to  tbe  idea  of  the  king's  per- 
fioual  warrant,  but  utterly  inconsistent  with  all 
tbe  nrindples  of  magistracy  in  a  subjecti. 

Ii  on  the  other  band  it  can  be  understoodi 
that  be  coukl  and  did  commit  without  shewing 
the  cause  in  bis  own  right  and  by  virtue  of  his 
ofHce,  then  was  his  warrant  admitted  to  be  legal 
by  the  whole  House,  and  without  censure  or 
animadversion.  It  was  neither  coudemtied  by 
llie  Petition  of  Right,  nor  uubject  to  the  Ha- 
beas CorpuB  Act  of  lOtb  of  Charles  tbe  First, 
(c.  10.) 

The  truth  of  tbe  case  was  no  more  than  this. 
Tbe  council-board  were  too  uumerou<»  to  be 
acquainted  with  every  secret  transaclion  that 
retjuired  im  mediate  confinement ;  and  tbe  de- 
lay by  summoning  was  inconvenient  in  cases 
that  required  dispatch.  Tbe  secretary  of  state, 
as  most  entrusted,  wag  tbe  littcst  band  to  issue 
sudden  warrants  ;  and  therefore  we  And  birn 
80  employed  by  queen  Elizabeth  under  the 
quabiy  of  a  privy  counsellor.  But  when  the 
attempt  fuiled,  the  judges  declaring,  that  he 
must  shew  tbe  cause,  and  that  they  would  re- 
mand none  of  his  prisoners  in  any  case  but  that 
of  high  treason,  those  warrants  ceased,  and 
Iben  a  new  methotl  was  taken  by  making  him 
tbe  iustru  ment  of  the  king's  speciak  mandatum  ; 
for  that  is  tbe  form  in  which  all  warranU  and 
returns  were  drawn,  that  were  produced  ujion 
tbat  faiiiou)3  argument. 

Having  thus  shewn,  not  only  negatively  that 
power  of  conimittiog  was  not  annexed  to 


the  secretary 'sofBce^  but  affinnativ^y  Wstmm 
that  be  was  notifier  or  ciManfeenifiicr  oTik 
king's  personal  warrattt  actiii^  m  ukt  jm 
down  to  tbe  times  of  the  t6th  of  Cbarici  Ik 
first,  and  consequently  to  tbe  H«atoi«tiQft,  Ir 
there  was  no  secretary  io  that  interval,  I ' 
but  little  to  add  upon  this  head,  but 
what  passed  between  tbftt  iiine  and  the 
Kendall  and  Rowe. 

Tbe  Licensing  Act,  tbat  look  place  m  tk 
IStb  and  14tb  of  Charles  tbe  Sttcood,  (c.3^ 
gave  him  bis  first  right  to  issue  a  vnnil  t 
bis  own  name ;  not  indeed  to  conimit 
but  a  warrant  to  search  for  papers.  WMt 
upon  this  new  power  he  grafted  any 
to  commit  persons  io  hUowu  ri^ht,  as  if 
seem  be  uid  by  the  precedent  prodiieii 
other  day,  is  not  very  material.  But  it  a 
markable,  that  during  that  tnterrai  be 
in  some  cases  to  tbe  old  form,  hi^  *[ 
the  express  cotomand  of  the  ktog  in  thii 
rant. 

With  respect  to  tbe  ctfiea  that  hmm 
since  tbe  Revolution,  such  as  the  King 
Kendall  and  llowe,  the  Queen  agakiit  i 
and  tbe   King  and  Barbery,    1  sbalt  like 
other  notice  of  them  in  tbis  ptace,  than  losj 
tbey  afford  no  light  in  tbe  present  inqmrt 
shewing  tbe  ground  of  tbe  officer^s  aui 
though  tbey  arc  strong  cas^  to  coii6r«i| 

But  before  I  can  fairly  ^onelnde^ 
secretary  of  staters  power  was  dcrti 
the  king's  peraonal  prerojgative  and  troa 
other  origin,  I  must  examine,  what  has 
relative  to  the  power  of  a  separate  |>rfry 
scllor  in  this  respect.    This  is  the  csorc. 
sary  to  be  done,  because  my  li^rd  chiif  j 
Holt  has  built    all    bis  authority 
ground ;  and  tlie  subsequent  eases,  ii 
striking  out  any  new  light  upoca  the 
all  lean  upon  and  support  themselves  l»y 
lord  chief  Justice  Uoll'&  opinloa  io  the 
Kendall  and  llowe. 

i  will  therefore  fairly  stale  all  that  I  km 
been  able  to  di scorer  ti inching  the  matter ;  td 
then,  after  I  have  dcclarMl  my  own  opiua 
shall  leave  others  to  judge  for  themsdves. 

In  the  first  place  it  is  proper  to  ohseift,  tli 
a  privy  counsellor  cannot  derive  bis  antbailf 
from  the  statute  of  VYestnainster  the  frtH 
which  recites  an  arrest  by  the  oommaod 
king  to  be  one  of  tliose  cases  that 

pleviseable  by  the  common  law.     The  ^ 

pal  commentator  upon  these  words  is  Sti^  1 
ford,  (PI.  fo.  72,  b.)  who  says,  as  to  tiic  m^ 
matidment  of  the  king,  this*  is  to  be  am 
of  the  commandment  of  bis  own  aioiitb, 
his  council,  which  is  incor|>oraie  to  hin», 
speaks  witb  the  mouth  of  the  kia^  hiia^« 
for  otherwise,  if  you  will  take  the^e  wo^^ 
commanflmeot  generally,  yau  may  may  ibtf 
every  Capias  in  a  personal  action  iis  Ibr  coa* 
mand  of  the  kmg.^'  Lamhard  in  h»  cbif<tf 
of  Bailment,  where  be  cites  this  acs  of  psHm-  | 
ment,  gives  it  the  same  ooattrueiiaa,  Vy  i^ 


lowing   a  ci»mmitni«^nt 
within  the  equity  of 


by  tjbe  eoaoeil 


nff/'    (XahiIk  Eirtfnnrcb,  8c  b.  3, 
Tliim  far,  fbtid  no  further,  did 


Dg^     T^^^      gffff^^  ^^  Cnrrington* 

ttenl  ofthe  kiii| 
t,  p.  335.) 

I  crown  Itwyem  in  the  iliinl  of  kiDg  Charles 
I  Ar»l  i*ndcavocir  to  extriid  the  text  uf  the 
^  ;  and  il  h  pi^iii  from  the  cjis^s  before 
litipd,  Ihit  the  judges  in  queen  Eiizaheth^s  time 
irerr  of  the  Bam«  opiriiuiip  that  the  nri^titiieiit 
loiihl  ivit  be  I'Xlended  id  faTOur  of  ihefiingle 
Kiiin^cdbr ;  hecaiisc?  they  hchl,  that  he  ts 
kmmJ  I'l  Khcstt  ihr  tnusie  upon  hit  tiarriittt,  as 
ii  ted  from  the  other  warrants,  where 

It  a  the  cau«©  need  not  he  shewn. 

il  htr  19  not  then  entitled  by  this  statnie,  is 
b«  empowered  hy  the  cominoii  law  P  They, 
l^liu  crontrnd  he  \s,  wouh}  do  well  to  itliew  some 
Mtthurity  in  proof  of  Iheir  opinion.  It  is  ckar, 
be  b  not  ouniiiered  an>(u<  ihe  cooservatoiB. 
It  ifl  >9  clear^  that  he  !£  not  otentioned  by  any 


A,  D,  17(55 


[105* 


^ 


e  v>f  the  ordinary'  miif^ist  rates  of  jus 

t\y  such  ijeneral  arnliority. 

i  11^'  nrst  place,  in  which  ajiy  tfiiug  of  this 

ind  %%  to  he  fonnd,  ig  iu   the  ytar-book  of 

enry  the  sixth,  where  the  sberiO*  returns  a 

ainer  under  the  warrmnt  of  *>  duos  de   con* 

lO  pro  rebui  regem  iang^eutibus.*     This  proof 

an  uidui  k y  defect  in  it ;  because  the  reading 

<loabtfu),  the  word  dtio^  as  it  is  written  stand* 

LS  well  for  dominos^  as  for  duot ;  so  that  till 

^  e   reading  is  settled,  which  is  bevond  my 

|c ill,  the  authority  must  be  suspendeu* 

\    The  next  time  yo"  meet  with  a  prtvy  coun- 

k  lie  hjht  of  a  inag'tgtnkle  is  in  the  first 

)i  i  the  sixth,  chap,  19,  s,  19»  where 

me  Qf  llie  priry  council  is  empowered  to  take 

}m  recusation  in  some  new  treasons  thtri^in 

pcmioned  ;  »nd   he  is  for  this  j>nrpose  joined 

|ilb  the  justice  of  assize  and  justice  of  the 

nee.     The  like  power  is  given  to  him  by  the 

ti  «nd  6th  of  the  same  kin^,  c.  11,  s.  10,  Ja  ft 

[e    c&se ;  and   1  find  in  Kelyng,  p.  19,  that 

ben  the  judges  met  to  resolve  certain  points 

lore  111 e  trial  of  the  Regicides,  they  resolredi 

Ri  ft  confession  upon  examination  before  a 

\wy  counsellor,  though  he  be  not  u  justice  of 

»  peftcc,  is  a  confession  within  the  meaning 

tbe  atfttutc  of  the  5th  and  6th  of  Eilwai^  the 

b.     That  act  of  parliament  in  the  t\ve]f\h 

Dticni  had  provided,  that  no  person  should  be 

tslfltH  of  treason,  but  upon  th^  testimony 

^  two  lawful  accusers,  unless  the  said  parly 

rmlgned  should   willingly  without   violence 

nHm  the  same. 

'Il  •#etnt  to  me,  that  the  ground  upon  whirh 

jttdgcft  proceeded  in  this  re:?ol«tiou,  was  the 

|>owergtren  to  the  nrivy  council  iu  the 

next  but  one  before  that  just  mentioned, 

ihi«  ULi'V  enables  thrm  to  take  the  accu- 

loti  sir  trensons  there  mentioned. 

W  ti  I     V  reasoned  In  that  way,  or  whe- 

Uu?j  conceived  that  the  power  there  given 

ft  »  proof  nfsornc  like  power  which  they  en- 

'  r  the  Cftse  of  treasons 

uklms  not  explained  ; 

uUority  ta  the  case  of  high 

]  a  very  |>uor  foundation, 

_  m  iriJtii  {ju  more  than  a  conjecture  of 

Without  autiiority  t^i  sup[M}rt  it. 


*I1ie  next  authorities  are  iho  cases  already 
ririled  in  {.^eonard,  whicb  tu  the  pre^-eut  |»oiitt 
proie  nothing  more  than  this;  thut  thi*  judges 
do  admit  a  fmwer  in  a  privy  couoKcltor  lo  com- 
mit without  *<ipecifyiiig  in  what  cu^es.  They 
demand  the  ruiH«%  and  a  belter  rcltirn  ;  whete- 
upou  sir  FrJincis  Wulsini»hnin,  iosiead  of  rely- 
ing U|ion  hi»  power  us  )irivy  counsellor,  returoft 
a  wftvf  wnriout  sij»nr(!  by  the  whole  board* 

Two  years  ufier  this  cume  forth  thai  famoiis 
resohilioQ  of  all  ihe  judges,  whirh  is  reported 
iu  1  Andi'rson  29T,  34 ih  of  Ehzabeih,  There 
is  no  occssion  to  obi>erve,  how  arbitrary  the 
prerogative  grew^  and  how  fast  it  increased  to- 
wards the  end  of  tht!<  queen's  reign.  It  seems 
to  toe,  as  if  the  pri%ilege  ctaimeJhy  the  king's 
personal  warrant ,  and  from  him  deVived  to  ihe 
council* board,  by  construction,  had  some-how 
or  other  been  adopted  hy  every  individual  of 
that  board  ;  for  in  fact  these  WBrrnnts  became 
so  frequent  and  oppressive,  that  the  courts  of 
justice  were  obliged  at  last  to  interpose. 

However  they  might  be  overborne  by  the 
terror  of  the  king's  spucial  command  either  m 
or  out  of  council,  they  had  courage  enough  to 
resist  the  novel  encroach  meniN  ot'the  i*eparale 
members;  and  therefore  they  did  in  the  courts 
of  King's-hencb  and  Common  Pleas  set  at 
larg«  many  persons  so  committed  ;  npon  which 
occasion  a  questioo  being  put  to  the  judges,  to 
specify  in  what  cases  the  prisoner  was  to  be  re> 
manded,  they  answer  the  question  with  a  re- 
monstrance of  their  own  against  the  illegal  war- 
rants grautetl  by  ttic  privy  connsellorst  The 
preamble  relates  entirety  to  these  corn  in  it  men  ts^ 
wherein  they  desire,  that  some  gooil  order  may 
be  taken,  that  her  highnesses  subjects  may  not 
be  committed  or  detained  in  pnson  by  com- 
ma n<lment  of  any  nobleman^  against  the  lawt 
of  the  realm. 

The  question  is  this :  In  what  cases  prisoners 
sent  to  custody  by  her  majesty,  her  council,  or 
any  one  or  more  of  her  council,  are  to  he  de- 
tained in  prison,  and  not  to  be  delivered  by  her 
majesty's  courts  or  judges. 

The  answer  is,  **  We  think,  that  if  any  per- 
son be  committed  by  her  miyest>'s  command 
from  her  ncr»on,  or  by  order  from  the  council' 
board,  or  if  any  one  or  two  of  her  council  com* 
mil  one  for  high  treason,  such  persons  so  in 
the  case  before  committed  may  not  be  def  ivered 
by  any  of  her  courts  without  due  trial  hy  tbd 
law  and  judgment  of  acquittal  had.  Ncvi'rtbe^ 
less  the  judgi's  may  award  the  quett/s  wiits  t« 
bring  the  bodies  ot  such  persons  l>efuru  thein; 
and  if  upon  return  thereof  the  cnuitcs  of  their 
commilnient  be  certiticd  to  the  judges,  as  k 
ought  to  be,  then  thu  judi;ea  in  the  cams  be- 
fore ought  not  to  deliver  him,  hut  to  rennand 
the  prisoner  to  the  place  from  whence  he 
came  \  xvhich  cannot  con vcnienity  be  done,  nti- 
tess  notice  *d'  the  causes  in  geoerality,  or  else 
spectully,  be  given  to  the  keeiier  or  gaoler  that 
shall  have  the  custody  of  such  prisoner.'* 

There  is  a  stutiied  obifcurily  iu  tins  opinion^ 
which  «hewH,  how  cautious  'the  jud^ea  ¥i«% 
obliged  to  be  iu  lho*c  4%iU^^^<^ni«  Xwotimv^^j 


1055J 


6  GEORGE  III. 


The  Case  of  Seizure  of  Papers' 


[lOM 


vhether  they  meant  to  acknowledge  a  general 
power  in  the  king  or  bis  council  to  commit,  as 
distinguished  from  a  special  power  in  one  or 
more  of  his  council  to  commit,  only  in  the 
case  of  high  treason;  or  whether  this  case  of 
high  treason  is  to  be  referred  to  all  the  commit- 
ments as  the  only  unbailable  case ;  or  again, 
whether  in  the  superior  commitment  by  the 
royal  person  or  his  council,  they  woubl  deliver 
the  priM>ner  though  no  cause  was  speciBed  ;  or 
if  one  of  the  council  committed  for  offences 
bek)w  high  treason  where  they  declare  they 
would  not  remand,  yet  whether  they  would  ab 
solutely  discharge  or  only  upon  bail ;  is  alto- 
gether either  ambiguous  or  uncertain. 

It  is  evident  to  me,  that  the  judges  did  not 
intend  to  be  understood  touching  these  matters; 
and  the  only  propositions,  that  are  clearly  laid 
down  in  this  resolution,  are  these. 

First,  that  they  would  never  remand  upon 
the  counsellor's  commitment  but  in  high- trea- 
son. 

Secondly,  that  the  cause  ought  to  be  shewed 
in  all  cases. 

This  resolution  grew  to  be  much  agitated 
afterwards  in  the  third  of  Charles  the  first, 
and  had  the  honour,  like  other  dark  oracles,  to 
be  cited  on  both  sides. 

Thus  much  it  was  necessary  to  observe  upon 
this  famous  opinion  ;  because  it  was  upon  this 
opinion,  that  lord  chief  justice  Holt  principally 
relied.  At  this  time  it  is  apparent,  that  all  the 
privy  counsellors  exercised  this  right  in  com- 
mon. Whatever  it  was,  the  complaint  shews, 
it  was  a  general  practice,  and  a  privilege  en- 
joyed by  all  the  members  of  that  board ;  from 
whence  it  is  natural  to  suppose,  that  if  the 
power  was  well  founde<l,  the  same  jpractice 
would  have  continued  to  this  time  iu  tue  same 
way,  seeing  how  tenacious  all  men  are  of  those 
things  that  are  called  rights  and  privileges. 
Instead  of  this  it  doth  not  appear,  that  the 
council  from  that  fcra  have  ever  asserted  their 
rights ;  and  now  at  last,  when  the  secretary  of 
state  has  revived  the  claim,  for  the  common 
benefit,  as  it  should  seem,  of  the  whole  body, 
no  other  person  has  follo\%ed  this  example,  or 
knows  to  this  moment  that  he  is  entitled  to  such 
right.  Any  body  who  considers  what  the  con- 
sequence must  have  been  from  these  determina- 
tions of  the  judges,  might  venture  to  afiirm, 
that  the  privy  counsellor's  warrant  from  this 
perioil  ceased  atfd  grew  out  of  use ;  for  as  the 
cause  in  this  case  was  necessary  to  be  specified, 
and  the  prisoner  was  never  to  be  remanded  but 
in  the  case  of  high  treason,  that  warrant  be- 
came at  once  unserviceable,  and  the  crown  was 
forced  to  resort  to  the  royal  mandate  or  the 
board-warrant,  which,  notvt  ithstanding  the  case 
in  Anderson,  was  still  insisted  to  be  unbailable 
and  good  without  a  cause. 

Hence  happened,  that  in  the  great  debate  in 
the  third  of  king  (Miarles  the  first,  no  privy 
counsellor's  warrants  do  once  occur ;  but  iu- 
stead  thereof  you  find  the  secretary  of  state 
dealing  forth  the  king's  royal  mandate,  and  the 
privy  counsellor's  authority  at  rest. 


The  only  reason,  why  I  touch  upon  theie 
proceeding's,  is  for  the  sake  of  observiog,  that 
no  notice  is  taken  in  those  argumeiits  of  the 
privy  cuimsellor's  right  to  commit ;  and  yd 
the  power  of  the  king  himself,  and  of  hiscooo- 
cil,  by  the  statute  ot  Westminster  the  first,  it 
largely  discussed,  and  so  fully  bandied,  that  if 
the  warrant  of  one  urivy  counsellor  had  thea 
been  in  use,  it  must  have  been  brought  forth  ia 
the  argument;  for  if  it  could  bare  served  as 
other  purpose,  it  would  have  been  material,  ia 
order  to  mark  the  distinctum  between  tbatasA 
the  warrant  of  the  whole  lioard. 

From  these  observations  1  conclude,  tkt 
these  warrants  were  then  deceased  and  gosci 
and  would  probably  have  never  made  their  as* 
pearance  again  even  in  description,  if  the  bill  n 
the  IGth  of  Charles  the  first,  c.  10,  bad  sol 
recalled  them  to  memory,  not  as  things  cilkff 
then  in  use  or  admitted  lo  be  legal,  but  as  ose 
of  the  modes  of  commitment  which  might  k 
again  revived,  because  it  had  been  formsriy 
practised.*  Therefore  when  this  form  of  «ii^ 
rant  appears,  as  it  does  in  the  catakigosif 
oiber  forms,  both  legal  and  illegal,  no  args- 
ment  can  be  raised  from  a  pretendeii  reoffu- 
tion  of  this  particular  warrant ;  sinee  il  wv 
necessary  to  name  every  mode,  that  e? er  hid 
been  used  by  the  kiug,  the  council,  or  tbeSiar 
Chamber,  m  order  to  make  the  reoMily  bf 
Habeas  Corpus  universal.  . , 

But  if  there  can  be  a  doubt,  whether  thii 
act  of  parliament  is  to  be  deemed  a  reco^aitiflB 
of  this  authority,  there  is  a  passage  u  tbi 
Journal  of  the  House  ofComoaons,  tnatpfsrci 
the  contrary  in  direct  terms. 

Whilst  this  bill  was  passing,  the  Hosm 
makes  an  amendment,  which  appears  bvtht 
question  put  to  be  this,  whether  the  Hoom 
should  assent  to  the  putting  the  word  '  fiherties* 
out  of  the  bill. 

But  as  the  passage  in  the  bill  is  not  roeotiooej 
in  the  Journals,  it  must  be  collected  by  iofcr- 
ences.  By  the  phrase  *  left  out  of  the  btU,r 
presume  it  was  permitted  to  stand  in  the  pit- 
amble.  Now  w  hen  you  look  into  the  preamble, 
the  word  *  liberties'  is  there  to  be  found  in  tbit 
part  of  the  preamble  which  recites  this  uturpi- 
tion  of  the  privy  council  upon  the  libetMi 
as  well  as  the  properties  of  the  subject;  where- 
as the  enacting  clause  condemns  only  thejont- 
diction  of  that  board,  so  far  as  it  assumed  ajari»* 
diction  over  the  property  of  the  subject ;  fis* 
whence  I  collect  that  the  word  *  liberties'  floiA 
in  that  clause ;  and  the  passage  that  followiii 
the  Journal  does  strongly  confirm  it. 

The  words  are  these :  '*  Resolved  npoo  the 
question,  that  this  House  does  assent  to  tk 
putting  the  word  *  liberties'  out  of  the  bill  OM- 
cerning  the  Star-Chamber  and  Council  picif 
ings ;  because  the  House  has  a  bill  tobearavs 
to  provide  for  the  liberty  of  the  subject  is  • 
large  manner.  Mr.  Serjeant  W*iki  sod  Mr* 
Whitelock  are  appointed  to  draw  a  bill  tsthil 

*  See  Leach's  HawkiniPs  PkM  ^  ^ 
Crown,  book  2,  c.  15|  i.  71. 


1057] 


Entkk  V.  Carriagton. 


A.  D.  1765. 


[lOM 


pur |»09&  upon  lUe  sererfil  puiots  ibal  have  been 
Jjcre  thift  (by  debnlecl^ 

"  Resalverf  lipcio  ihe  qiieition,  tliat  the  liOily 
of  the  lords  of  liie  council,  nor  any  one  ofilieui 
IP  f>artiCMlar  aa  a  priTy-oounsellor,  has  any 
power  lo  impri*on  any  free-born  aubject,  ex- 
ce[»t  ill  Ruch  cases  as  they  are  warraole^l  by 
tbe  suttttes  nf  the  realm." 

ll  is  pretty  plain  frotn  this  patsn^Cf  that  tbe 
d^ate  t limed  upon  thr*  meaning  of  Uiestaiule 
of  Weiitminstpr  the  ftrM,  atvil  ibe  resnkiiion  of 
the  jud^r&s  in  Ant]ei*90n,  about  which  it  ia  not 
til  to  give  any  opioion  ;  nay  de«^igii  by  citing 
this  passatje  being  ouly  to  abew,  that  this  act 
of  parliarivrnl  doca  not  even  prove  the  actual 
iii*actice  of  such  warrants  at  that  time,  mucli 
UsM  dtjes  recognize  their  legality, 

Wtiat  rollowsi  iiifttill  more  remarkable  touch • 
init  thii  buFinesi,  upon  a  doubt  started  in  the 
trial  of  the  8eveo  Bisbopii.*  They  were  com- 
mitted by  a  warrant  signed  by  no  leas  Ihao 
tiiirleen  privy  cf»un.sellon$ ;  but  the  warrant  did 
tiol  flppt'sr  to  be  signed  by  them  in  council. 
The  ohjectiiiu  taken  was,  that  the  warrant  was 
void,  being  feigned  only  hy  the  \invy  ctmnscl- 
lors  st^parutely,  and  not  in  a  htHty.  Jf  any  man 
in  VVestinmsier-hall  at  that  lime  had  under- 
stood, that  one  or  more  privy  counsellors  had 
ft  right  to  commit  for  a  misdemeanour,  that 
would  have  bt^en  a  flat  aoaw  er  to  the  objection  j 
but  thry  ar^  so  far  from  insisting  upnu  this, 
that  all  the  kind's  couusc^llors,  m  uell  as  the 
Cour(,  do  ailmil  the  warrant  woidd  have  been 
Toid^  if  it  cimhl  he  laken  to  be  executed  by 
iliem  out  of  council. 

The  aolirilor- genera!  upon  that  occasion 
cites  the  Itjth  of  Charlesi  the  first,  which  !tiii- 
lute  is  prnduceil  and  read  ^  and  yet  no  argument 
is  takeii  ffom  thrnce  to  prove  the  unthority  of 
ihe  lii'panite  lords,  though  ihe  act  ia  before 
them.  Mr.  Follexfcn  in  the  course  of  the  de* 
bate  says*  *  We  do  all  pretty  well  agree,  for 

*  aught  I  can  perceivej  in  two  things.     We  do 

*  mil  tieny,  hut  that  the  council-board  has  power 

*  to  commit.     They  on  the  other  side  do  not 

*  affirm,  that  the  lortls  of  the  couucil  can  com* 
«  mit  ouud  the  council. 

'  Attorney  GeneruL  Yes,  they  may  as  jua- 

*  Ijces  ot  the  peace. 

*  Foilesftn.  Tliig  ia  not  pretended  to  be  to 
Ji«re. 

*'  L.  C.  X  No,  no,  that  is  not  the  case.' 

The  Court  Jit  bstgot  rid  of  the  objection,  by 
presuminer  the  warraiul  to  have  been  executed 
to  council. 

There  cannot  be  a  stronger  authority  than 
this  I  have  now  died  for  the  present  purpose. 
The  whole  Iwdy  of  the  law,  if  I  may  use  the 
pbrase,  were  ai  ignorant  at  thai  time  id  a  privy 
€>ouasel)or^s  right  to  commit  in  the  caie  of  a 
libel,  as  the  whole  hody  of  priv^  counsellors  are 
at  this  day. 

Ttie  counsel  on  both  sides  in  that  cause  wens 
the  ablest  of  their  time,  and  few  timet  have 
produced  abler.  They  bad  been  concerned  in 
<  ■  ■ ■ — -^^ — -'        ' 

♦  See  tliig  Case,  tol  12»  p.  183, 
VOL.  XIX. 


aH  Ihe  ttate-cases  during  the  whole  reign  of 
king  Charles  the  second,  on  one  tide  or  iht 
otht^r ;  and  to  suppose  that  all  these  perftona 
could  he  utterly  igntrrunl  of  this  extraordi- 
nary  power,  if  it  had  been  either  legal  or 
even  practised,  is  u  tuppositiou  uoi  to  be  main- 
tained. 

Thit  is  the  whole  that  I  have  been  able  to 
lioilp  touching  the  power  of  one  or  axom 
privy  couniiellorB  to  comuiil ;  and  to  sum 
up  Ihe  whole  of  this  busioeKs  in  oiword  iisloudf 
thus ; 

The  twocaaesin  Leonard  do  [»re-supposesoroe 
power  ina  privy  counsellor  to  commit,  without 
Raying  what ;  "and  the  case  in  Anderson  duet 
plainly  recogoixe  such  a  power  iti  high  trea* 
son  :  but  with  respect  to  his  jurisdiction  in  other 
oflences,  1  do  not  find  it  was  either  claiined  or 
exercised. 

In  consequence  of  all  this  reasonings  1  am 
fOfceJ  to  deny  the  opinion  of  my  lord  chief  jus- 
tice liott  10  be  law,  if  it  a  hall  be  taken  to  ex- 
tend heyoud  the  case  of  high  treason.  But 
there  it  no  necessity  to  under  stood  the  book  in 
a  more  general  sen&e  9  nor  is  it  fair  indeed  to 
give  the  words  a  more  large  coosiructjon  :  for 
as  the  conclusion  ought  always  to  be  grounded 
on  the  presnsses,  and  the  premisses  are  cou^ned 
to  the  case  of  high  treason  only,  Ihe  opinion 
aUould  naturally  coufoim  to  the  cases  cile«l, 
more  CHpecialty  at  tlie  caee  there  before  tiie 
Court  was  a  case  of  high  treason,  and  they 
were  under  no  necessity  to  lay  down  the  doo- 
irine  larger  than  Ihe  case  re«juired. — Now 
whereas  it  has  been  argued,  that  if  you  atlmit 
a  povver  of  committing  in  high  treason  1  the 
pov%  er  of  committingiu  ItiS^er  otfVnces  follows  i. 
forfiori ;  I  hegteave  to  deny  that  conse^jnenee, 
Inr  I  lake  the  role  with  respect  to  all  special 
authorities  to  be  directly  the  reverse.  They 
are  always  strietty  coik5ned  to  the  letter;  and 
when  I  sec  therefr»re,  that  a  special  power  in 
atiy  single  case  only  has  been  permitted  to  n 
person,  who  in  no  other  iniiiance  is  known  or 
recordeilby  the  common  law  as  a  magistrate,  I 
have  no  right  to  enlarge  his  authority  one  *tep 
heyond  that  case.  Consider  bow  strange  it 
would  sound,  if  1  should  declare  at  ouee,  that 
every  privy  counsellor  without  exception  is  in- 
vested witfi  a  power  to  commit  in  all  offenoea 
without  exception  from  high  treason  down  to 
trespass,  wbeti  it  is  clear  thut  he  is  uot  a  con* 
servaior.  It  might  be  iaid  of  me,  *  he  should 
h:ive  explained  himself  a  little  more  clearly, 
tod  told  us  where  he  had  found  the  descriptioEi 
of  so  singular  a  magistrate,  who  being  no  con 
servator  was  yet  in  the  nntureol  a  conservator.* 

1  have  now  Hnished  all  I  have  to  say  upon 
Ibia  head  ;  and  am  aaliatied,  that  the  secretary 
of  state  hath  assumed  this  power  as  a  transler^ 
I  know  not  how,  of  the  royal  <^uthority  to  bim- 
oelf ;  and  that  the  common  taw  of  Enif land 
k  nowB  no  such  mai^iRtraie.  At  the  same  time  1 
declare,  wherein  my  brothen  do  all  agree  wtth 
nie,  that  we  are  bound  to'  adhere  to  tne  deter« 
niinatioD  of  the  Qjieen  against  Derby,  and  the 
King  agiiiist  Earbury  ;  and  1  have  tio  right  to 

3  V 


6  GEORGE  IIL  The  Case  of  Seizure  of  Papers^  [lOGO 

that  coDser? ators  are  within  the  equity  of  tfaii 
act.  They  are  clearly  not  witbiii  the  letter; 
for  justice  and  coaservator  are  not  oooTeitilile 
terms ;  and  thoas^  it  should  be  admitted,  that 
a  justice  of  the  peace  is  still  a  eouaerfator,  yet 
a  conserTator  is  notr  a  justice. 

The  defendants  have  argued  upon  two  ruki 
of  construction,  which  in  truth  are  but  one. 

First,  where  in  a  (rental  act  a  particnlar  is 
put  as  an  example,  all  other  persons  of  like  de- 
scription shall  be  comprized. 

Secondly,  where  the  words  of  a  statute  soaet 
a  thing,  it  enacts  all  other  things  in  liln 
degree. 

In  Plowden  37,  and  ^67,  and  467,  teftnl 
cases  are  cited  as  authorities  under  these  nki 
of  construction ;  as,  that  the  bishop  of  Msr^ 
wich  in  one  act  shall  mean  all  bishopa ;  ihil 
the  warden  of  the  Fleet  shall  mean  all  gMkn; 
that  justices  of  a  diriaion  mean  all  justices  ef 
the  county  at  large,  diat  guardian  inaoeB|S 
after  the  heir's  attaining  fourteen,  shall  be  a 
bailiff  in  account ;  that  executors  ahali  indadi 
administrators,  and  tenant  for  yearaatetait 
for  one  year  or  any  less  time ;  with  aernil 
other  instances  to  the  like  purpose. 

In  the  first  place,  though  the  general  role 


1059] 

overtam  those  decisions,  even  though  it  should 
be  admitted,  that  the  practice,  which  has  sub- 
sisted since  the  Revolution,  had  been  erroneous 
in  its  commencement. 

The  secretary  of  state  haying  now  been  con- 
sidered in  the  two  lights  of  secretary  and  privy 
counsellor,  and  likewise  as  the  substitute  of  tfale 
royal  mandate ;  in  the  two  first  he  is  clearly 
no  conservator ;  in  the  last,  if  he  can  be  sup- 
posed to  hare  borrowed  the  right  of  conserva- 
torship from  the  sovereign  himself,  yet  no  one 
will  are^ue  or  pretend,  that  so  great  a  person, 
one  ffoTiigh  in  nuthority,  can  be  deemed  a  jus- 
tice of  the  peace  within  the  equity  of  the  24th  of 
Geo.  3. 

However,  I  will  for  a  time  admit  the  secre- 
tary of  state  to  be  a  conservotor,  in  order  to  exa- 
mine, whether  in  that  character  he  can  be 
within  the  'equity  of  this  act. 

Second  Question. 

Upon  this  question,  I  shall  take  into  con- 
sideration the  7th  of  James  1,  c.  5,  because, 
though  it  is  not  material  npon  this  record  to 
determine,  whether  the  special  evidence  can  be 
admitted  under  the  general  issue  of  not  guilty, 
the  defendant  bavins  in  this  instance  justified ; 
yet  as  that  act  is  made  in  eAiUm  maicriA,  and  for 
the  benefit  of  the  same  persons,  the  role  of 
'Construction  observed  in  that  will  in  great  mea- 
sure be  an  authority  for  this. 

The  24th  of  Geo.  2  is  entitled,  <  An  Act  for 

*  the  rendering  justices  of  the  peace  more  safe 

*  in  the  execution  of  their  offices,  and  for  indem- 

*  nifying  constables  and  others  acting  in  obe- 
<dience  to  their  warrants.*  The  preamble 
runs  thus :  *  Whereas  justices  of  the  peace  are 

*  discouraged  in  the  execution  of  their  offices, 

*  by  vexations  actions  brought  a^tnst  them, 

*  for  or  by  reason  of  small  and  involuntary 

*  errors  in  their  proceedings ;    and  whereas  it 

*  is  necessary  that  they  should  be,  as  far  as  is 

*  consistent  with  justice  and  the  safety  and  li- 

*  berty  of  the  subjects  over  whom  their  autho- 
'  rity  extends,  rendered  safe  in  the  execution 
'  of  the  said  office  and  trust ;  and  whereas  it  is 
*•  also  necessary,  that  the  subject  should  be 
'  protected  from  all  wilful  and  oppressive  abuse 

*  of  the  several  laws  committed  to  the  care  and 

*  execution  of  the  said  justices  of  peace.'  Then 
Gomes  the  enacting  part. 

The  only  granter  of  the  warrant  in  tlie  en- 
. acting  part,  as  well  as  the  preamble,  is  thejus- 
.tice  of  the  peace.  The  officers,  as  they  are 
described,  are  constables,  headboroughs,  and 
other  officers  or  persons  acting  by  their  or- 
der, or  in  their  aid.  If  any  person  acting  in 
obedience  to  such  warrant,  and  prodncing  the 
said  warrant  upon  demand,  is  afterwards  pro- 
secuted for  such  act,  the  statute  says,  he 
shall  be  acquitted,  upon  the  production  of 
such  warrant.  The  counsel  for  the  defen- 
dants say,  the  secretary  and  the  messengers 
are  lioih  within  the  equity  of  this  act.  The 
first  is  a  justice  of  the  peace,  because  he  is  a 
conservator.  If  so  the  latter  is  his  officer, 
which  I  will  admit.    The  proposition  then  is, 


be  true  enough,  that  where  it  is  clear  the  peisoa 
or  thiuff  expressed  is  put  by  wav  of  exanpk^ 
the  judges  must  fill  up  the  catalogue ;  yet  «s 
ought  to  be  sure,  from  the  words  and  nieBMB| 
of  the  act  itself,  that  the  thing  or  person  n 
really  inserted  as  an  example. 

This  is  a  very  inaccurate  way  of  penniofift 
law ;  and  the  instances  of  this  sort  are  ] 


ever  to  be  found,  except  in  some  of  tbeoU 
acts  of  parliament.  And  wherever  this  rab 
is  to  take  place,  the  act  must  be  general,  ss^ 
the  thing  expressed  must  be  particular ;  sacb 
as  those  cases  uf  the  warden  of  the  Fleet  ao^ 
the  bishop  of  Norwich :  whereas  the  act  beftri 
us  is  equally  j^eneral  in  all  its  parts,  and  re* 
qnires  no  addition  or  supply  to  give  it  the  foil 
efiect.  Therefore  if  this  wav  of  arguing  can 
be  maintained  by  either  of  the  rules,  it  oiiist 
fall  under  the  second,  which  is,  that  where  tbe 
words  of  a  statute  enact  a  thing,  it  enadi  tH 
other  things  in  like  degree. 

In  all  cases  that  fall  within  this  rule,  there 
must  be  a  perfect  resemblance  between  the  per- 
sons or  things  expressed  and  those  impM 
Thus  for  instance,  administrators  are  the  samt 
thing  with  executors ;  tenant  for  half  a  vetr 
and  tenant  for  years  have  both  terms  for  a 
chattel  interest,  differing  only  in  the  dnratiea 
of  the  term  ;  and  so  of^the  rest,  which  I  nee4 
not  repeat  one  by  one :  and  in  all  these  catc^ 
the  persons  or  things  to  be  implied  are  in  all 
respects  the  objects  of  the  law  as  much  as  thest 
expressed.  Does  not  every  body  see  fnm 
hence,  that  you  must  first  examine  the  law  be* 
fore  you  can  apply  the  rule  of  constructMsf 
For  the  law  must  not  be  bent  bv  the  constroctioa, 
but  that  must  be  adapted  to  the  spirit  and  sesis 
of  the  law.  The  fundauTental  rule  then,  bf 
which  all  others  are  to  be  tried,  is  laid  down  le 
Wimbiah  and  Tailbois,  Plowden  57.  SB,  ac* 


1061] 


Enliek  v.  Cartittgton. 


A.  D.  1765. 


[10C2 


Cording'  to  wliicli  die  best  guidt:  is  to  follotiF  the 
intent  of  the  Ktaiutes.  Again,  accoritini^  to 
I'towden.  |i.  205  and  331,  the  cun 54 ruction  is 
to  lie  collecled  out  of  the  wordt  acccirdiii^  1o 
tbe  true  intent  and  menmnj^  of  the  act,  and  the 
intent  of  the  inttker«  may  l»e  collected  trom  the 
pC4.tiie  or  necessity  of  runkiniif  tbe  let,  or  by 
ibrcign  circumstances. 

Lei  U8  try  the  present  case  by  these  rulea; 
iod  let  (hw  jtiiiUcenf  the  |»eace  «tand  fur  a  nio- 
Dient  in  this  act  aa  4  magistrate  tit  Urge  \  and 
Ihco  compare  hitn  as  be  ts  liere  deacrilied  ivith 
ihe  croas^rrator. 

Tbe  juAttce  here  is  a  magistrate  intrusted 
Hilb  the  executiou  of  many  Iaws,  V\Mv.  to 
ictioni  for  involuntary  error/,  and  nctuttUy  dis* 
eoitraged  hy  rexatious  suiu;  in  respect  of 
which  ptailuus  situation  he  is  intended  to  be 
Icndcr^'d  more  safe  in  tbe  execution  of  bis 
lliice. —  fie  is  besides  a  magistrate,  who  ads 
iy  wfjirrsnt  directed  to  constables  and  other 
pffii'  Ivi  known  officers  who  are  bound 

ioex  narrants. 

^ow  iJiKe  liie  conservator. —  Be  is  intrusted 
ivilti  tbe^^xecution  of  no  laws,  if  the  word  ^  law* 
is  uoderstood  to  mean  statuti^^,  as  I  afipreheod 
k  is.o^He  is  liable  to  no  acition;},  bec^ause  lie 
tierer  aci«  ;  the  keeping  of  the  pt'ace  being  so 
tpleltly  trauiifttred  to  and  su  engro$<^ed  by 
justice,  thai  the  name  of  conservator  is  al- 
it  fcwgot.  He  is  far  irom  btjing  discouraged 
bj  ACtioOK.  No  man  ever  heard  of  an  action 
lirotigbt  against  q  consertaior  as  such  ;  unless 
you  will  cah  A  cunstjble  a  conserralor,  which 
mill  not  serve  th'?  presient  purpose,  because 
Hiese  pcn.ous  can  hardly  lie  deemed  justices 
prithio  the  act, — Attain,  Itow  does  it  appear, 
iut  llie  cuuservator  could  either  grant  a  tvar- 
iike  the  present,  or  romtn«ud  a  constable 
cute  it  ?  These  poviers  are  at  least  very 
•f"! :  but  1  think  1  uuy  lake  it  for  granted, 
ctinsemior  could  not  cumiuaud  a 
'X  of  the  king's  cUainlier, 
liid  then  thiu  act  of  parlLiment  refer  lo  ma* 
ales  of  known  authority  and  daily  eui- 
lenif  or  to  antiqusteil  |K>wera  and  persons 
_  n  to  have  ex(st»'d  by  historical  l^uditiim 
ity  f  Did  It  mean  in  redress  real  grievances, 
»r  tbosr  that  were  never  telt  ?  *  Ad  ea,  i\ixm 
fri*<|uenter  accidunt,  jura  adaptautur/ 
Fmm  this  comt'aiison  it  ntay  appear,  Uovr 
there  is  to  drag  the  conservator  into  the 
who  hardly  corrfiijiiinds  with  the  juktice 
m  pracc  in  uny  cine  point  of  the  ilescriptiun. 
ut  further,  it  is  unturtunaie  for  the  conser- 
txira  ujjon  this  qutstiim.  that  one  half  of 
are  tlic  oUje*Ui»  ot  the  niatute  by  name, 
cotmiflhit ..  "vt .  iiinl  \  f't  not  one  iif  their  aula 
C'  I  the  provision, 

Aki  've  to  uwk  one  question. 

dl  tUt  »r«jrciiiry  iif  state  be  claAsed  with  the 
licr  or  the  Invier  conservator  '  If  with  the 
,  such  as  the  king,  the  ehancellor,  ^c. 
UHi  mucli  above  tbe  justice  to  be  within 
(equity.     If  »«ith  the  lower,  he  is  too  much 
low  bim.    And  as   to  the  sheriff  and  the 
itiefi  lUvy  c&anot  be  wilbia  tbe  law ;  be* 


cause  they  oeTer  grant  such  warrants  as  these. 
8o  thai  at  last,  upun  considering  all  the  coii!»er- 
vators,  there  is  not  one  that  does  not  ^tuod 
most  evidently  excluiled,  unless  tbe  secretary 
of  stale  himself  shall  be  excepted. 

But  if  there  wanted  argumeuts  U»  confute 
Ibis  pretensiont  the  constructHin  that  has  nrt- 
vailetl  upon  the  «evenih  of  jNines  tlie  ttrst, 
would  deciite  the  point.  That  is  an  oct  ol  hke 
kind  lo  relieve  jUNtues  of  the  peace,  mayors, 
contfinbles,  ond  certain  oihtrr  otTitteis,  in  trouble- 
some actions  hicmght  atfaiost  them  for  ihe 
legal  execution  of  i  heir  otH^es ;  who  d  re  ennbk'd 
by  thai  act  l"  pleud  the  genciat  t^stie.  Now 
that  law  lias  been  taken  so  strictly,  that  neiilier 
ciiurch'Wnrdeus,  nor  overseers,  were  held  to 
be  within  the  eipiily  of  tlie  %»ord  *  constables,' 
although  they  ivere  clearly  uRieers,  and  acted 
under  ihejuslicc's  waniuits.  Why  \  Ijeeuuse 
that  act,  being  made  in  change  the  cciuite  of 
tbe  common  law,  ciiuld  not  be  extended  be^ 
yood  tbe  letter.  If  then  that  privilege  of 
giving  the  6[>ecial  mfitier  in  evidence  upon  the 
general  issue  is  cotitrury  to  the  common  law, 
hnw  much  more  substantially  is  lliis  uct  an  in- 
novation of  the  comnuin  lnvi ,  which  irideumifiea 
the  officer  upon  the  jiroiluction  uf  thi'  warrant, 
and  deprives  the  buhject  of  hia  right  oK  iicuon  ? 

ft  is  im(»assible,  titat  two  acts  of  pjrtiarui'iit 
can  be  more  nearly  allied  or  connei-ted  witb 
one  anolheri  than  that  of  34  George  2,  and  ihe 
7ili  of  James  1,  The  cdtjetis  in  twlh  are  the 
same,  and  the  ri^medtes  are;»iri}ilAr  in  hoih,  cadi 
of  tliem  changing  ttie  couinion  \^\\  tor  the  be- 
nefit of  the  parties  concerned.  Tlie  one,  in 
trtilh,  is  the  sequel  or  Hecond  purt  td' the  other. 
The  first  not  bemg  an  nflequate  remedy  in  case 
of  ihe  sever »l  persons  Iheitrin  mertiiooed,  the 
secontl  is  added  to  roni|ilete  the  i%ork.  anil  to 
make  them  a*  secure  as  they  oui^hl  lo  be  m^de 
from  the  nature  of  the  case.  If  by  a  contrary 
coD«triiciion  any  |icr(ioii  shouUI  hi*  uditiittcd 
tntn  the  la»»t  that  are  not  included  in  ttiat  first, 
the  person^  tihoevfr  he  \\  will  be  \^ithout  the 
privilege  of  plciidiii]^  the  general  issue,  and 
^ivinif  the  sprrial  matter  in  evidence,  which 
tbe  latter  would  Inive  certatuly  t^in-n  by  ex- 
press words,  if  tbe  parliament  could  have  ima- 
gme^l  he  was  not  comprized  in  the  (irst. 

U|iou  the  whole,  Me  are  aU  of  opiiiion,  that 
neither  secretary  of  stale,  nor  the  messenger, 
arc  witbio  tbe  uieaumg  of  this  act  ot  parlia- 
ment. 

Third  QuKhTioNt 

Bui  if  they  were  within  the  general  e<|uityt 
yet  it  behovi'd  ihe  mc^H«'n^er  to  »)hi'W,  tlmt 
they  have  acted  in  ol»edicuce  to  ihe  wiirrnnt ; 
for  it  is  upon  that  conditton,  that  ibey  ate  iuiu 
lled  to  the  exentplom  of  \\iv  net.  IV hen  the 
legislature  excused  the  otBcer  Irom  the  perilous 
task  of  judgiug,  they  compelled  hitn  lo  an  im- 
plicit id»edience  ;  which  was  hot  resNonalde:  so 
ihnt  now  he  munt  tidlnw  ili»^  ihctatea  of  his 
waii'unt,  being  no  longer  obliged  to  inquire, 
whether  bis  superior  had  ur  had  uut  any  juris- 
dictiOD.     Tbe  lale  deciaiaa  uf  the  Couci  oC 


1063] 


6  GEORGE  III. 


The 


KingVbench  intheCaseof  GeoenI  Warrants* 
Yvas  ruled  upoo  this  groand,  and  rightly  de» 
termined. 

Tilts  part  of  the  case  is  dear,  and  shall  be 
dispatched  in  very  few  words. 

First,  the  defendants  did  not  take  with  them 
a  constable,  which  is  a  flat  objection.  They 
had  no  business  to  dispute  either  the  propriety 
or  the  lei^Iity  of  this  direction  in  the  execution 
of  the  warrant ;  nor  have  their  counsel  any 
ripfht  to  dispute  it  here  in  tl^ ir  behalf.  They 
can  have  no  other  plea  under  this  act  of  par- 
liament, than  ignorance  and  obedience. 

Secondly,  they  did  not  hrin^f  the  papers  to 
the  earl  of  Halifax,  to  be  examined  according 
to  the  tenor  of  the  warrant,  but  to  Mr.  Lovell 
Stanhope.    I'his  command  ought  to  hare  been 
Hterally  pnrsued  ;   nor  is  it  any  excuse  to  say 
now,  as  they  do  in  their  plea,  that  Mr.  Lovdl 
Stanhope  was  an  assistant  to  the  earl  of  Hali- 
fax.    If  he  is  a  magistrate,  he  can  have  no  as-  j 
sistant,  nor  deputy,  to  execute  any  part  of  that  j 
em|)loyment.    The  right  is  personal  to  himself,  < 
and  a  trust  that  he  can  no  more  delegate  to 
another,  than  a  justice  of  the  peace  can  trans- 
ftr  his  commission  to  his  clerk. 

I  shall  say  no  more  upon  this  head.  But  I 
cannot  help  observing,  that  the  secretary  of 
state,  who  lias  not  been  many  years  intrusted 
with  this  authority,  has  already  eased  himself 
of  every  part  of  it,  except  the  signing  and  seal- 
ing the  warrant.  The  law  clerk,  as  he  is  called, 
examines  both  persons  and  papers.  He  backs 
or  discharges.  This  is  not  right.  1  could  wish 
for  the  future,  that  the  secretary  would  dis- 
charge this  part  of  his  office  in  his  own  person. 

Fourth  and  last  QuESTiON, 

The  question  that  arises  upon  the  special 
rerdict  being  now  dispatched,  1  come  in  my 
last  place  to  the  point,  which  is  made  by  the 
justification  ;  for  the  defendants,  having  failed 
in  the  attempt  made  to  protect  themselves  by 
the  statute  of  the  2  tth  of  Geo.  2,  are  under  a 
necessity  to  maintain  the  legality  of  the  war- 
rants, under  which  they  have  acted,  and  to  shew 
that  the  secretary  of  state  in  the  instance  now 
before  us,  had  a  jurisdiction  to  seize  the  defen- 
dants* papers.  If  he  had  no  such  jurisdiction, 
the  law  IS  clear,  that  the  officers  are  as  much 
responsible  for  the  trespass  as  their  superior. 

This,  though  it  is  not  the  mof^t  difficult,  is 
the  most  interesting  question  in  the  cause ;  be- 
cause if  this  point  bhould  be  determined  in  fa- 
vour of  the  jurisdioiion,  the  secret  cabinets  and 
bureaus  of  every  subject  in  this  kingdom  will 
be  thrown  open  to  the  search  and  inspection  of 
a  messenger,  whenever  the  secretary  of  state 
sliail  think  fit  to  charge,  or  even  to  suspect,  a 
]>erson  to  l>e  the  author,  printer,  or  publisher  of 
a  seditious  libel. 

The  messenger,  under  this  warrant,  is  com- 
manded to  seize  the  person  described,  and  to 
bring  him  with  bis  puiiers  to  be  examined  be- 

*  Money  and  others  againit  Leacb,  Mich. 
6  Geo.  3,  anU^  p.  1002. 


Case  of  Seizure  of  Papers^'  [  I0G4 

fore  the  Mcretary  of  state.    In  eoofenaice  of 
this,  the  boose  mutt  be  searched ;  iIm  Wk  aad 


doors  of  erery  room,  box,  or  trunk  most  be 
broken  open ;  til  the  papers  and  books  witfaoot 
exception,  if  the  warrant  be  executed  aeoordiag 
to  its  tenor,  must  be  seized  and  carried  away ; 
for  it  is  observable,  that  nothiog  m  left  cHber  la 
the  discretion  or  to  the  humanitv  of  the  olieer. 

This  fiower  so  assumed  by  the  neerHuy  of 
state  is  an  execution  upon  all  ibe  party's  pipci% 
in  the  first  instance.  His  house  is  rifled ;  bii 
most  valuable  secrets  are  taken  out  of  his  pss- 
session,  before  the  pajier  for  which  he  b  charge 
ed  is  found  to  be  criminal  by  any  competent 
jurisdiction,  and  before  he  is  eouTieted  either 
of  writing,  publishing^  or  betog  couoeracd  ia 
the  paper. 

This  power,  so  claimed  by  the  aeerelary  «f 
state,  is  not  suppi/.ted  by  one  single  citahia 
from  any  law  book  extant.  It  ia  daiosed  kj 
no  other  magistrate  in  this  kingdom  bat  hia- 
self :  the  great  executive  band  of  criminal  jus* 
tice,  the  lord  chief  justice  of  the  oanrt  of 
King's-bench,  chief  ju^ice  Scro^gs  eioepieri, 
never  having  assumed  this  authority. 

The  arguments,  which  the  defemlanis'  esan- 
sel  have  thought  fit  to  urge  in  aupport  of  thii 
practice,  are  of  this  kind. 

Tliat  such  warrants  have  issued  fref|neBlly 
since  the  Rerolution,  which  practice  has  bsca 
founil  by  the  special  verdict;  though  1  mart 
observe,  that  the  defendants  hare  no  right  li 
avail  themselves  of  that  findin|r,  becanse  ao 
such  practice  is  averred  in  their  justificathNi. 

That  the  case  of  the  warrunts  beara  arrscB- 
Usnce  to  the  case  of  search  for  stolen  goads. 

They  say  too,  that  they  have  been  execoltd 
without  resistance  upon  many  printers,  bosk- 
sellers,  and  authors,  who  nave  quietly  sub- 
mitted to  the  authority  ;  that  no  action  hsdi 
hitherto  been  brought  to  try  the  right;  sod 
that  ahhoutrh  they  have  been  often  read  apse 
the  re^.urns  of  Habeas  Corpus,  yet  no  ouurt  ot 
justice  has  ever  declared  them  illegal. 

And  it  is  further  insisted,  that  this  power  it 
essential  to  governmc^nt,  and  the  only  roeuu  of 
quieting  clamours  snd  se<lition. 

These  arguments,  if  they  can  be  called  ar- 
guments, shall  be  all  taken  notice  of;  became 
upon  this  question  1  am  desirous  of  remoria^ 
every  colour  or  plausibility. 

Before  1  state  the  question,  it  will  be  neccs* 
sary  to  describe  the  power  claimed  by  this  wt^ 
rant  in  its  full  extent. 

If  honestly  exerted,  it  is  a  power  to  seifi 
that  man's  papers,  who  is  charged  upon  oath 
to  be  the  author  or  publisher  of  a  seditioai 
libel ;  if  oppressively,  it  acts  against  eveiy 
man,  who  is  so  de4scribed  in  tite  wanraoV, 
though  he  be  innocent. 

It  is  execused  againt  the  party,  before  lie  il 
lieanl  or  even  summoned ;  ami  the  informatilBi 
as  well  as  the  informers,  is  unknown. 

It  is  executed  by  messengers  vritb  or  wiib- 
out  a  constable  (tor  it  can  never  be  pretendfdt 
that  such  b  necessary  in  noint  of  law)  hi  At 
prewnnetMTibe  absence  of  tha  party,  at  4k 


003} 


Eniick  \u  Cnrringion^ 


A.  D.  1705* 


[lOOtt 


if^rn  ehall  think  6uarp%l  witUoiit  h  wrt* 
to  tfiMlity  what  [m9w%  at  the  time  of  ili« 
iaciiaij  ;  so  tlitt  vvbtni  Ih^  iMiptrn  tur  ^oiie, 

,rt  ^  Mr  witiiotii  proiil.* 

I»  I  falls  upon  an  innocent  persAci, 
Rt«}  ts  rernetl^*  ns  ihc  lyriiiltj^  t  Kncl 
Ihc  V,  0  in  sofciiariWd  dtfikinstdis- 
iavery,  tlui  li  the  otBcei- shoiiUl  !»«!  di$»ii»e<!  In 
pKrry  off  a  btink-liill,  li«  mnv  ilo  it  with  tmpu- 
ptt^"!  [iible  of  proving 

rh<  ken. 

It  uui>t    HOI  Kt^iirtc    ir)ii;nL,    timt  DO  CubjeCt 

whuUaefCf  is  priulege*!  irotn  t bis  search  ;  bc- 
0mumi  btfib  tloiKr^  of  Purliumeiit  bate  re- 
iolred,  thHt  ihere  is  uopni^ilege  in  (became  of  a 

N  preicnee  to  say ^  that  the  wont 

>  |Mp<  tiitnlionvd  otig\it  in  (loliit  of  law 

lie  rewiraiiieil  l«t  the  libel Uiu««  jiii|iers  <mly. 
i«  i<f«r*l  11*  ^nerah^  antl  ibure  it»  mitbinif  lO 
^  to  confine  it ;  nay,  I  am  ab£  to 
it  it  haw  been  upon  a  late  ocoamn 
fn  its  iitmoiii  Ititituik:  far  m  the  oite 
|#f  WtrtceaajfairiHl  \Vi»oJt  nbLO  tU«  nie»sviig»eri 
l)|Miit«il9«l  fttuKit  iakin*v  ail  tht>  QiaDU9cript9,  .incl 
I'^ittt  to  tb«  secret nry  of  state  for  more  eirpreM 
Bwlerafdrthttl  1  V  the  answer  wa««  **  thai 

Ul  mutt  be  lak  cripis  am)  aM,'*     Ac- 

efRtltfi^y,  all  v....  ;..»<]),  an4  Mr  Wilkes'a 
^riTate  pock«l-bm»k  fiUetl  up  the  itioulh  of  lti€ 
^ck, 

1  ifaJi  hkr«^t«e  lobl  in  the  mfflt  eaute  by  one 

bV  rliL'  niir,i  ox^iefieficeil  fnemenfeerif  that  be 

1  ^rtinil  by  bill  oatb  to  f ay  an  im< 

10  the  Duiniiiands  uf  the  secre- 

ot  ^iitt:  I  that  in  eiiiDiiion  cue*  be  fi  aa 

dliteil  tA  aeixr  the  printed  ifiifife««|ooa  of 

e   papen   menlioueil   in    tlie   warrant ;    bnt 

hen  lie  rrceited  ilirrtTimuH  U>  Sfurrb  lurtbf^r, 

iM^  a  mtire  tfctieral  seixiire,  bis  ruttf 

all.    The  |irtti:lice  baji  been  cor- 

in  ibe  warrant. 

8tieh  la  the  powt*r,  ami  therefore  one  should 


^   *  **  If  a  private  person  iiifptct  Bnotbtr  «€ 
Mcny,  Bill)  lay  «ucli  g^roirnil  of  omapicion  before 
ootiatahle,  «i}d  require  bis  B^^sistiitice  to  taka 
p,  tbo  euiiMMhte  ntayjJTiatifY  k)tlin|;»  the  p^rty 
Iter  fly,  tbonsfb   in  uutli  Ke  were  iuiicrcent. 
fttji  fti  «(tirh    rn^r,  n  bcrr    un  hue  and    ery  is 
1^  IS  iiiuHt  be  obaerved  : 

•1  1 1 ;( I*  M  o  1 11^  preafnC ;  for 

I  -  con^rtolfle  did  iitd  bjin 
rtr4    ^.  The  rotuitable 
i  Suttpirioti, 
'•nesj*  of  it. 

nm    s<  » HI  null  there  Olio  bt 

ouHd  •^bfwn  for  it :    olher- 

Mi 'irM.-il  n  hf^ibrr  auch   iu- 

•       It-   III    rod^uhlc  or  nol, 

■  I'i  "'  '■  ■  •■■  ■i"»i»      Aud  it  waa 

that  there 

'  <Un  faot^of 

've  been    ascer- 

,  '  M  at  of  the  €roHD, 


naUtmlly  expect  that  the  law  to  warrant  il 
6bould  be  clear  in  proportion  aa  the  power  m 
cxorbjtaut. 

If  it  ti  law,  it  will  be  found  in  our  bookf . 
If  it  ia  not  to  \n;  found  thtfief  it  is  nut  bw. 

The  ij^n^ti'iid,  for  itbicb  men  i'Ot**reiJ  into 
Kociety^  waa  lo  aerure  iberr  property.  Thai 
ri|^hi  isi  preserved  i;acred  aod  lucoinmoiiicable 
in  all  inatante^,  where  it  has  not  bt^en  taken 
away  or  abrid|(id  by  souie  pubhc  hiw  for  the 
Sfood  of  Ibe  whole.  The  casin  where  Ibi9 
Ti\iUi  of  properly  is  apt  utide  by  posit ife  bw, 
are  Vitriou^.  Iii»tre9se.s,  execotKnii,  forfei- 
tures, lajsts,  &c,  are  all  ol  iImk  di-sttTi prion  j 
wher(*in  every  man  by  cmnnuMi  coi>Sfitt  >fiv«n 
»p  that  ri|flit,  for  tbe  aak«  of  jui^tice  and  tli# 
t;enf>ral  yfoud.  By  ibe  laws  of  Eoi^laud^  everv 
:nvaaiofv  of  private  property,  be  it  e^er  (»o  mi* 
nulF,  is  a  tre^pasji.  ^lo  man  ean  61 1  his  f^nl 
upnu  my  ifroond  without  my  licence,  but  be  is 
lijidie  to  an  action,  though  the  damage  be  no* 
tbiufir ;  which  in  pmveil  by  every  declaration  in 
trespa^K,  where  the  ikfendaut  ia  called  U|hhi  \9 
ancv^xT  lor  brui&ing^  the  grass  aiul  even  trend- 
ing*  upon  the  soil.  If  be  admita  the  fact»  he  it 
bound  to  libew  by  way  of  justiiication,  that 
BOftie  po^.tire  law  has  tmjiowered  ©r  eitcuned 
hiiti.  The  ju^tilicatiun  is  lubmitied  to  the 
jiid<«eK»  who  are  io  look  mto  the  books;  and  if 
i*ncb  11  piKtifieaiiiMi  cun  be  uiditiuiuetl  by  ibn 
text  of  the  statute  Uw,  or  by  the  prindjdes  of 
coninuvn  hm  1 1  f\n  Mtrji  excuse  can  be  found 
01  ;  >  uf  liitf  books  is  ao  no- 

tbo  (eodant,  and  the  plainlitf 

must  iiave  (udtrinent. 

AeoordHi^r  lo  thiv  reasonin|^,  it  is  now  m* 
cnmbent  upon  the  defend  an  U  to  shew  the  law, 
by  which  this  spiKure  is  warranted.  Iftknt 
cannot  be  done^  it  is  a  tresfiass. 

P^ipers  are  the  owner's  gcKkda  and  cJinlldi  ; 
thf-y  are  hi«  dearevt  property  \  and  are  so  fnr 
from  endurinii^'  a  seizure,  that  they  will  hardl  j 
benr  an  inspection  ;  and  thi»U(;h  the  eye  cannot 
hy  the  laws  of  £n^1nijd  be  guilty  of  a  trcspasa^ 
yet  where  pfivile  papere  are  removed  and  oar* 
rieil  aw  ay,  ibe  secret  nalore  of  those  g^ooda  will 
be  an  agt^ravation  of  the  trespass,  and  demaml 
more  com^ulcrabir  daroa|2;ea  in  that  respect. 
VVtiere  is  the  written  law  thai  ^ves  any  mnfis- 
trale  i*uch  a  power  ?  I  cno  talely  answer,  Ibem 
is  none ;  and  therefore  it  in  too  mneh  £sr  iw 
wiib«iiit  such  authority  to  pronounces  pmctJcs 
le^al,^  wJtich  would  be  aubvi^rsive  of  all  tlw 
coiufurts  of  sociHy. 

But  though  It  cannot  be  iPtilsfciti  by  any 
dtri'it  bw,  yet  it  besra  n  fssetrililinos,  ns  wsn 
ur^i-d,  to  tli«  known  cast  uf  aeirdi«n4  seknrt 
tor  stoirn  ifood^, 

I  anawrr^  that  the  difference  ia  sppareot* 
In  tb€  one,  I  am  p4  riintird  to  a^^ixe  my  own 
Koods,  ithu'h  arc  placed  in  the  httotiij  of  a  pob- 
He  oiiicer,  till  the  trbur^  *  ou\  nUaii  ^h;ili  intitle 
me  to  re«lilHtiiHi      In  party^s 

own  property  la  srwird  k  >  i>m  con- 

viction, aod  be  baa  no  power  to  rechiim  his 
i^tMMla,  ef  en  after  bis  innoeence  it  dttrnd  by 
sctfuittd. 


1067J 


6  GEORGE  III. 


The  Case  of  Seixure  of  Papers^ 


Tbe  case  of  searching  for  stolen  goods  crept 
into  the  law  bv  imnerceptible  practice.  It  is 
the  only  case  ot  the  kind  that  is  to  be  met  with. 
No  less  a  person  than  my  lord  Coke  (4  Inst. 
176,)  denied  its  legality ;  and  therefore  if  the 
two  cases  resembled  each  other  more  than  they 
do,  we  have  no  right,  without  an  act  of  parlia- 
ment, to  adopt  a  new  practice  in  the  criminal 
law,  which  was  ne?er  yet  allowed  from  all  an- 
tiquity. 

Observe  toe  the  caution  with  which  the  law 
proceeds  in  ihis  singular  case. — There  must  be 
a  full  charge  upon  oath  of  a  theft  committed. 
— ^The  owner  must  swear  that  the  goods  are 
lodged  in  such  a  place. — He  must  attend  at 
the  execution  of  tne  warrant  to  shew  them  to 
the  officer,  who  most  see  that  they  answer 
the  description. — And,  lastly,  the  owner  most 
abide  tbe  event  at  his  peril :  for  if  the  goods 
are  not  found,  he  is  a  trespasser ;  and  the  of** 
ficer  being  an  innocent  person,  will  be  always 
a  ready  and  convenient  witness  against  him.* 

On  the  contrary,  in  the  case  before  us  no- 
thing is  described,  nor  distinguisheil :  no 
charge  is  requisite  to  prove,  that  the  party  has 
any  criminal  papers  in  his  custody :  no  person 
present  to  separate  or  select:  no  person  to 
prove  in  the  owner's  behalf  the  officer's  misbe- 
haviour.— To  say  the  truth,  he  cannot  easily 
misbehave,  unless  he  pilfers;  for  he  cannot 
take  more  than  all. 

If  it  should  be  said  that  the  same  law  which 
has  with  so  much  circumspection  guarded  the 
case  of  stolen  goods  from  mischiet;  would  like- 
wise in  this  case  protect  the  subject,  Iw  adding 
Cper  checks;  would  require  proofs  before- 
id ;  would  call  op  the  servant  to  stand  by 
and  overlook ;  would  require  him  to  take  an 
ejuct  inventory,  and  deliver  a  copy :  my  an- 
swer is,  that  ail  these  precautions  wuuld  have 
been  k>ng  since  e&tablisned  by  law,  if  the  poner 
itself  had  been  legal ;  and  that  tbe  want  of 
them  is  an  undeniable  argument  against  tbe  le- 
gality of  the  thing. 

What  would  the  parliament  say,  if  tbe 
judges  should  take  upon  themselves  to  mould 
an  unlawful  power  into  a  convenient  authority, 
by  new  restrictions?  That  would  be,  not  judg- 
ment, but  legislation. 

I  come  now  to  the  practice  since  the  Revo- 
lution, which  has  been  strongly  urged,  with 
this  empbatical  addition,  that  an  usage  tolerated 
from  the  eera  of  liberty,  and  continued  down- 
wards to  this  time  through  the  best  ages  of 
the  constitution,  must  necessarily  have  a  legal 
commencement.  Now,  though  that  pretence 
can  have  no  place  in  the  question  made  by  this 
plea,  because  no  such  practice  is  there  alleged ; 
yet  1  will  permit  the  defendant  for  tbe  present 
to  borrow  a  fact  from  the  special  verdict,  for 
the  sake  of  giving  it  an  answer. 

If  tbe  practice  be^n  then,  it  began  too  late 
to  be  law  now.  If  it  was  more  ancient,  the 
Revolution  is  not  to  answer  for  it ;  and  I  coald 

*  See  Leach's  Hawkins's  Pleas  of  the  Crown, 
book  S,  c.  IS,  s.  17.  ^ 


[1068 

have  wished,  that  apoB  this  oocMion  the  Revs* 
lution  had  not  been  considered  as  tbe  oaly 
basis  of  our  liberty. 

The  Revolution  restored  this  eonslitotioo  to 
its  first  principles.  It  did  no  more.  It  did 
not  enlarge  the  liberty  of  the  subject ;  but  gsfe 
it  a  better  security.  It  neither  widened  asr 
contracted  the  foundation,  bot  repaired,  sad 
perhaps  added  a  buttress  or  two  to  the  ftbrie; 
and  if  any  minister  of  state  has  liiice  devisted 
from  the  principles  at  that  tinoe  rtoogniaei, 
all  that  I  can  say  is,-  that,  mo  far  firom  bsiof 
sanctified,  they  are  coDdemned  by  tbe  Revoh- 
tion. 

With  respect  to  the  practke  itself,  if  it  fjom 
no  higher,  every  lawyer  will  tell  yoa,  it  is 
much  too  modern  to  h!e  evidence  of  the  css- 
mon  law  ;  and  if  it  should  be  added,  that  tbsK 
warrants  ought  to  acquire  some  strength  by  lbs 
silence  of  those  courts,  which  have  heard  tboi 
read  so  often  upon  returns  without  censure  sr 
animadversion,  1  am  able  to  borrow  my  aanw 
to  that  pretence  from  theCourt  of  King's- bsncb, 
which  lately  declared  with  great  noaniaiy 
in  the  Case  of  General  Warrants,  that  as  bo  ii* 
jection  was  taken  to  them  upon  tbe  ratiin% 
and  the  matter  passed  tub  uUntio^  tbe  pieM- 
dents  were  of  no  weight.  I  most  beaitily  sm- 
cur  in  that  opinion ;  and  the  reason  is  am 
pertinent  here,  because  tbe  Court  bad  Boaalhs- 
rity  in  the  present  case  to  determine  agaiirt 
the  seizure  of  papers,  which  was  not  Eefas 
them ;  whereas  in  the  other  they  might,  if 
tbey  had  thought  fit,  have  declared  the  w»- 
rant  void,  and  discharged  the  prisoner  tjcfftm. 

This  is  tbe  first  instance  I  have  met  wilk. 
where  the  ancient  immemorable  law  of  lbs 
laud,  in  a  public  matt^,  was  attempted  is  Is 
proved  by  the  practice  of  a  private  office. 

The  names  and  rights  of  public  magistrato, 
their  power  and  forms  of  proceeding  as  tbey  ' 
are  settled  by  law,  have  been  loug  since  writ- 
ten, and  are  to  be  found  in  books  and  records 
Private  customs  indeed  are  still  to  be  soufbl 
from  private  tradition.  But  whoever  coDoeifH 
a  notion,  that  any  part  of  the  public  law  ooaM 
be  buried  in  the  obscure  practice  of  a  parties* 
lar  person  ? 

To  search,  seize,  and  carry  away  all  tbe  pa- 
pers of  the  subject U|Kin  the  first  warrant:  that 
such  a  right  should  have  existed  from  the  tiist 
whereof  the  memory  of  man  runneth  not  ts 
the  contrary,  and  never  yet  have  found  a  pbM 
in  any  book  of  law ;  is  incredible.  Bot  if  H 
strange  a  thing  could  be  supposed,  I  do  not  tf^ 
how  we  could  declare  the  law  upon  such  cri- 
dence. 

But  still  it  is  insisted,  that  there  has  beeo  t 
general  submission,  and  no  action  brought  t$ 
try  the  rigUt. 

1  answer,  there  has  been  a  submiHioo  !■ 
guilt  and  poverty  to  power  and  the  terror  • 
punishment.  But  it  would  be  strange  dodriii 
to  assert  that  all  the  people  of  this  land  tft 
bound  to  acknowledge  that  to  be  oniversal  liv, 
which  a  few  crimioal  bookaeUen  bave  biiB 
afraid  to  dispute. 
4 


1069] 


Entkk  V,  Carringion* 


A.  D,  1765. 


[1070 


Tbe  defend  ants  upon  ihb  occasion  h&re 
•t«ipped  short  at  tbe  UeToUitinn.  But  I  think 
it  would  be  male  rial  to  go  further  back,  in 
order  to  see,  bow  far  tbe  search  and  seizure  o( 
papers  have  been  count enauceil  in  the  anlece- 
dent  reigns. 

Firsts  I  find  no  trace  of  sucb  a  warrant  as  the 
present  tietbre  that  peri  ml »  except  a  very  few 
that  were  produced  the  otber  doj  in  the  reign 
of  king-  Charles  2. 

But  there  did  exist  a  search-warrant,  which 
took  its  rise  from  a  decri^e  of  the  Star*  Cham- 
ber. The  decree  is  found  at  the  end  of  tbe 
3d  Tolunie  of  Rush  worth's  Collections.  \\  was 
made  in  the  year  163d,  and  recites  an  older  de- 
cree ujjon  tlie  RubjifCt  in  the  28th  of  Ehzahetb, 
hf  which  probably  tbe  same  pwer  of  search 
'Was  given. 

By  this  decree  tlie  messeniyer  of  the  press 
i^as  empowered  to  ije arch  in  alt  places,  where 
%ooks  were  printing,  in  order  to  see  if  the 
printer  had  a  licence  ;  and  if  upon  such  search 
fie  found  any  books  whicli  he  suspected  to  be 
libellous  against  the  church  or  slate,  he  was  to 
%eize  lb  em,  and  carry  them  before  the  proper 
inagistrate. 

It  was  very  evident,  tl»9t  the  Star- Chamber, 
lOw  soon  after  the  invention  of  nrinting  1  know 
at,  took  to  itself  the  jurijjdictnin  over  public 
llbeJs,  which  sooij  grew  to  be  tbe  peculiar  husi- 
eas  of  that  court.  Not  that  the  courts  of 
kVestminster-ball  wanted  the  power  of  holding 
leas  in  iliotie  ca&es;  hut  the  attorney  genenil 
'or  good  reasons  chose  rather  to  proceed  there; 
Rvtiicb  is  the  reason,  why  we  hate  no  cases  of 
libels  in  the  King's- bench  before  the  Restora. 

The  8iar^hamher  from  this  jurisdiction  pre- 
genlly  u<iiirped  a  general  su  peri  nt  en  dance  over 
ititf  press^  and  exercist'd  a  legislative  power  in 
XI  matters  relating  to  tbe  subject.  They  ap- 
losnted  licensers;  they  prohibited  biK>ks;  they 
nllicted  peuahies;  and  they  dignified  one  of 
ih«ir  officers  with  the  name  of  tbe  messenger 
if  the  press,  and  among  other  things  enacted 
MS  warrant  of  search. 

After  that  court  was  abolished,  the  press  be- 
mme  free,  but  enjoyed  its  liberty  not  at>nve  two 
r  three  years  ;  fur  the  Long  Parliament  thought 
4  to  restrain  it  aijain  hy  ordinance.  Whilst  the 
resa  is  free,  1  am  afraid  it  will  always  fje  h- 
eotious,  and  ail  gov ernmenLs  have  an  iiversinn 
»  Jtbels.  This  parliament,  thvrelore,  did  by 
ordinance  restore  the  Star-Chamher  practice*; 
Ibey  recalled  the  liceuceaj  and  sent  forth  again 
tbe  messenger.  It  waii  against  the  ordinance, 
jliat  Milton  wrote  that  famous  pamphlet 
lied  Areopagitica.  U|mn  the  Restoration, 
Lbe  press  was  free  once  more,  till  (be  3!]th  and 
|4th  of  Charles  2,  n ben  the  Licensing  Act 
^med,  which  for  the  first  time  gave  the  secre* 
iry  of  state  a  power  to  issue  search  warrants  t 
ot  these  warrants  were  neither  so  oppreisive, 
,or  so  inconvenient  as  the  present.  I  he  right 
ki  enquire  into  ttie  licence  was  the  pretence  of 
'  inglhe  searches;  and  if  during  the  search 
suspected  libela  were  found^  Uiey  and  they 
lofy  could  be  seized. 


This  act  expired  the  32d  year  of  that  relgov 
or  thereabouts,  It  was  re vi veil  again  in  the  Ist 
year  of  king  James  %  and  renistned  in  furce  till 
ibe  5tb  of  king  William,  after  one  of  his  par- 
liaments bad  ciiDliuucd  it  for  a  year  beyond  its 
expiration. 

J  do  very  much  suspect,  that  the  present 
warrant  took  iia  rise  frcjm  these  search -war- 
raotSi  that  I  hare  been  describing ;  nothing 
being  easier  to  account  for  than  this  engraft- 
ment ;  the  difttrence  lietwecn  them  being  no 
more  than  thts,  that  tlie  apprehension  of  the 
person  in  the  tir^t  was  to  follow  the  seizure  of 
pajicrSf  but  the  seizure  of  papers  in  the  latter 
was  to  fcillow  the  appreheusion  of  the  person. 
Tbe  same  evidence  would  serve  equally  fur 
both  purposes.  If  ii  waij  charged  for  printing 
or  publishing,  that  was  sufficient  Ibr  either  of 
the  ivarranls.  Only  this  material  difference 
must  always  he  observed  between  ibemi  that 
the  search  warrant  only  carried  off  the  criminal 
papers,  whereas  this  seizes  all. 

W  hen  the  Licensing  Act  expired  at  tbe  close 
of  king  Charles  2*s  reign,  the  twtlve  juiJgea 
vrere  assemhJed  at  the  king's  command,  to  dis- 
cover wlietber  the  press  might  not  he  as  ef- 
fectual ty  restrained  by  the  common  law,  as  it 
had  bet-'U  hy  tliat  statute. 

I  cannot  help  ubserving  in  this  place,  that  if 
the  secretary  of  stale  was  still  invested  with  a 
power  of  issuing  this  warrant,  there  was  no 
occasion  for  the  ap[i1ication  to  tlie  judges  r  Ibr 
though  he  could  not  issue  the  general  search- 
warrant,  yet  upon  the  least  rumour  of  a  libel 
he  might  have  done  more,  and  seized  everj 
thing.  But  thai  was  not  thought  of,  and  there- 
fore the  judges  met  and  resolved  : 

First,  that  it  was  criminal  at  common  law, 
not  only  to  write  public  seditious  papers  and 
false  news  ;  but  likewise  to  publish  any  news 
without  a  licence  from  the  king',  though  it  wa| 
true  and  innocent. 

Secondly,  that  libels  were  seizable.  This  t'a 
to  be  fount]  in  the  State  Trials ;  and  because  it  if 
a  curiosity,  I  will  recite  tbe  passages  at  large. 

**  The  Trial  of  Harris  for  a  libel.  Scroggf 
Chief  Justice. 

^'  Because  my  breihren  shall  be  satisfied 
with  the  opinion  of  all  the  jnilgfS  of  England 
wliat  this  ofTeuce  is,  which  they  would  in- 
sinuate, as  if  the  mere  selling  of  hooks  was  no 
itfl'ence  ;  it  is  not  long  since  that  all  tlie  judges 
met  by  the  king^s  commandment,  as  they  did 
souie  time  before:  and  they  both  times  de- 
clared unanimously,  that  all  persons,  that  do 
write,  or  print,  or  sell  any  pamphlet  that  ia 
either  scandcilous  to  public  or  private  persons, 
such  books  tnay  be  seized,  and  the  persoas 
punished  hy  biw  ;  that  all  hooks  which  ara 
scanddous  to  the  government  may  he  seized^ 
and  all  persons  so  expounding  may  be  punish- 
ed :  and  further,  that  all  writers  of  news« 
though  not  scandalous,  seditions,  nor  re6ectivtf 
upon  the  government  or  state ;  yet  if  they 
are  writers,  as  they  are  few  oihrrs,  of  false  news, 
they  are  iudictable  and  punishable  upon  that 
account."     [See  vol,  7,  p.  9Sa] 


1071] 


6  GEORGE  III. 


The  Case  qfSeixure  of  Papers' 


[low 


It  seems  the  chief  justice  was  a  little  incor- 
rect in  hifs  report ;  for  it  slioulil  s«ein  ai  if  be 
meant  to  punish  only  the  writer  of  false  news. 
But  he  is  more  accurate  aflerwards  in  the  trial 
of  Carre  for  a  libel. 

"  Sir  G.  Jefferia,  Recorder.  All  the  juilges 
of  Englaod  having  met  together  to  know, 
whether  any  person  whatsoefer  may  expose  to 
the  public  knowledge  any  matter  of  intelli- 
gence, or  any  matter  whatsoever  that  concerns 
the  public,  they  gife  it  in  as  their  resolution, 
that  no  person  whatsoever  could  expose  to  the 
public  knowledge  any  thing  that  concerned  the 
affairs  of  the  public,  without  licence  from  the 
king,  or  from  such  persons  as  he  thought  fit  to 
intrust  with  that  power.** 

**  Then  Scroggs  takes  up  the  sulject,  and 
aays.  The  wcmls  1  remember  are  tliese. 
When  by  tlie  king's  command  we  were  io  give 
in  our  opinion,  what  was  to  be  done  in  point  of 
regulation  of  the  press,  we  did  all  subscribe, 
that  to  print  or  publish  anv  news- books  or 
pamphlets,  or  any  news  whatsoever,  is  ille- 
gal ;  that  it  is  a  manifest  intent  to  the  breach  of 
the  peace,  aud  they  may  be  proceeded  against 
by  law  for  an  illegal  thing.  Suppose  now  that 
this  thins;  is  not  scandalous,  what  then?  If 
there  had  been  no  reflection  in  this  book  at  all, 
vet  it  is  illicUe  done,  and  the  author  ought  to 
be  convicted  for  it."    [See  vol.  7,  p.  1127.] 

These  are  the  opinions  of  all  the  twelve 
judges  of  England  ;  a  great  and  reverend  au- 
thority. 

Can  the  twelve  judges  extrajudicially  make 
a  thing  law  to  bind  the  kingdom  by  a  declara- 
tion, that  such  is  their  opinion  ? — I  say  No. — It 
is  a  matter  of  iropeacbnnent  for  any  judge  to 
affirm  it.  There  must  l>e  an  antecedent  iirin- 
cipic  or  authority,  from  whence  this  opinion 
may  l)e  fairly  collected ;  otherwise  the  opinion 
is  null,  and  nothing  but  ignorance  can  excuse 
the  judge  that  subscribed  it.  Out  of  this 
doctrine  sprang  the  famous  general  search- 
warrant,  that  was  condemned  hy  the  House  of 
Commons ;  and  it  was  not  unreasonable  to 
suppose,  that  the  form  of  it  was  settled  by  the 
twelve  judges  that  subscribed  the  opinion. 

The  deduction  from  the  opinion  to  the  war- 
rant is  obvious.  If  you  can  scixe  a  libfl,  you 
may  search  for  it :  if  search  is  legal,  a  warrant 
to  authorize  that  search  is  likewise  legal :  if 
any  magistrate  can  issue  surli  a  warrant,  the 
chief  justice  of  the  King's  bench  may  clearly 
doit. 

It  falls  here  naturally  in  my  way  to  ask, 
whether  there  be  any  authority  besides  this 
opinion  of  these  twelve  judges  to  say,  that 
libels  may  he  seized  ?  If  they  may,'  I  am 
afraid,  that  all  the  inconveniences  of  a  general 
seizure  will  follow  upon  a  right  allowed  to 
seize  a  part.  The  search  in  such  cases  will  be 
general,  and  every  house  will  fall  under  the 
power  of  a  secretary  of  state  to  be  rummaged 
oefore  proper  conviction. — Consider  for  a  while 
how  tlie  law  of  libehi  uow  stands. 


Lord  Cliief  Justice  Holt  and  the  Court  of 
King's-beuch  have  resolved  id  the  KiDg  and 
Bear*,  that  he  who  writes  a  lihel,  thoogk  he 
neither  composes  it  oor  poblisbes,  is  crisuaaL 

In  the  5th  Report,  135,  lord  Coke  cites  itia 
the  Star  Chamber,  that  if  a  libel  cooeeria  a 
public  person,  he  that  hath  it  in  his  cvitsdy 
ought  immediately  to  deliver  it  to  a  magiatnai^ 
that  the  author  may  be  found  out. 

In  the  case  of  Lake  and  HaUon,  Hohrt 
25e,  it  is  observed,  that  a  libel,  though  tk 
contents  are  true,  is  not  to  be  justified  ;  butlW 
right  way  is  to  discover  it  to  some  nagistrak 
or  other,  that  they  may  have  cognizinceof  ik 
cause. 

In  1st  Veotris  31,  it  b  said,  thalfthe  haviif  i 
libel,  and  not  discovering  it  to  a  magistnir, 
was  only  punishable  in  the  Star  Chamber,  h- 
less  the  party  malickmsly  puUiah  it.  Bat  the 
Court  corrected  this  doctrine  in  the  King  aa^ 
Bear,  where  it  said,  though  he  never  pohliihH 
it,  yet  his  having  it  in  readiness  for  that  p^ 
pose,  if  any  occasion  should  bappeo,  is  hifUj 
criminal :  and  though  he  might  deaignio  kiif 
it  private,  yet  after  his  death  it  might  h\\  im 
such  bauds  as  might  be  injurious  to  the  gonra- 
ment ;  and  therefore  men  ought  not  to  be  al- 
lowed to  have  such  evil  instrunnents  Io  tWir 
keeping.  Carthew  409.  In  Salkekl's  rrpirt 
of  the  same  case.  Holt  cliicf  justice  s^ya,  if  a 
libel  be  publicly  known,  a  written  copy  sf  ilii 
evidence  of  a  publication.    Salk.  418. 

If  all  this  be  law,  and  I  have  no  right  it 
present  to  deny  it,  whenever  a  favouriic  liU 
is  published  (and  these  compositions  are  ifi 
to  be  favourites)  the  whole  kingdom  in  a  nssik 
or  two  becomes  criminal,  and  it  would  be  dii* 
cult  to  tind  one  innocent  jury  amongst  ao  m»J 
millions  of  offenders. 

I  can  find  no  other  authority  to  justifvtbe 
seizure  of  a  libel,  than  that  of  Scr6giss  aall  bis 
brethren. 

If  the  power  of  search  is  to  follow  tbe  n{b 
of  seizure,  every  body  sees  the  c<}nscq«ifoc(. 
He  that  has  it  or  has  had  it  in  his  custody ;  ke 
that  has  published,  copied,  or  maliciously  R* 
ported  it,  may  fairly  be  under  a  reasooikle 
suspicion  of  having  the  thing  iu  his  cuitoiiT, 
and  consequently  become  the  object  ol  tkc 
search-warrant.  If  libels  may  be  seiieil,  it 
ought  to  be  laid  down  wiih  precision,  nlM 
where,  upon  what  charge,  against  %» bom,  bjf 
what  magistrate,  and  iu  what  stage  of  iliepr** 
seculion.  All  these  particulars  must  be  fi* 
plained  and  proved  to  he  law,  bt^fore  this  gtsc* 
ral  proposition  can  be  esiablished. 

As  therefore  no  authority  iu  our  bookfCii 
be  produced  to  support  such  a  doctrine,  awlfi 
many  Star- Chamber  dicrees,  ordinaoceSt  h' 
acts  have  l>et'u  thought  necessary  to  estaM 
a  power  of  search,  I  cannot  l»e  persoadii 
thai  such  a  power  can  be  justified  by  theoHS- 
mou  law. 

I  have  now  done  with  the  argamcDt, 


*  Reported  Carth.  407.    1  L.  Rayi 
13  Mod.  399.    3  Sulk.  417.  646. 


.4li 


1073] 


JRntick  a  Carringtom* 


A.  D,  nes. 


[1074 


bas  endeavoured  to  suppi>rt  this  worrant  by  th« 
practice  sioce  tbe  Revoluttoo. 

It  is  tiieu  i^idf  that  it  is  necessary  for  I  lie 
ends  of  governiDeut  lo  ludg^e  iueh  a  puwer 
ivitli  a  stale  officer ;  and  lliat  it  i»  belter  to  pre* 
veol  the  publication  bef'nre  tliun  to  punish  the 
offender  afterwardi^  1  answer,  if  the  legiiila- 
tioa  be  *yf  that  opinion,  they  will  revive  the  Li- 
censiDg  Acr.  But  if  they  have  not  done  that^ 
I  conceive  they  are  not  ot  that  opinion.  And 
witlv  respecl  to  the  ur^uruent  of  state  Deces- 
wity,  or  a  distinction  that  Itaa  been  ninied  at 
between  itate  oflence^  and  others,  the  common 
law  does  not  iinflcrslanil  that  kind  of  reason - 
ingft  nor  do  our  bookii  take  notice  of  any  siuch 
diiiinctiun^. 

Serjeant  Ashley  was  commiried  to  the  Tower 
io  the  3iJ  o4' Charles  let,  hy  the  Bonie  of  Lorcb 
only  for  asserting^  in  artrutneD^  that  there  was 
m.  'law  of  state*  itifferent  from  the  common 
law;  and  the  Ship- Money  judsjes  were  im- 
peached tor  lioldii)|r^  tirst,  that  state-necessity 
vould  justify  the  raising;  money  without  con- 
sent of  puriiament ;  anil  secondly,  that  the  kin^ 
ivaa  jud^e  of  that  necessity. 

If  the  king^  himself  has  no  power  to  declare 
^hen  the  law  ou^ht  to  be  vjolatetl  for  reason 
Of  i^tBte^  1  arn  sure  we  his  judges  have  no  such 
prerogative* 

Lastly,  it  is  ur^ed  as  an  argument  of  tittlity, 
that  such  a  search  it  a  ioeans  of  deteclin^f  oV- 
fenders  by  discovering  evidence,  1  vvisli  some 
cases  had  been  shewn,  w  liere  the  law  forceth 
evidence  out  of  the  owiwrV  custody  by  process, 
There  is  uo  process  atraiust  |>apsrs  in  civil 
causes.  It  has  been  often  toed,  hut  never  prf  * 
vailed.  May,  where  the  adversar)/  hn3  by  loice 
or  fraud  got  posaessioD  of  your  own  proper 
evidence,  there  is  no  way  to  get  it  hack  out  by 
action. 

In  the  criminal  law  such  a  proceedinpf  was 
never  heard  of;  and  yet  there  are  some  criuK'S, 
fluch  for  instance  as  murder,  rape,  robhi-ry^ 
nnd  house^bretikmg",  to  say  nothing  of  lorfjery 
and  perjury,  that  are  mure  atrocious  than  li- 
belling. But  our  law  hai$  prr^i^ided  no  paper- 
search  in  these  cases  to  help  forward  the  con- 
viction. 

'Whether  this  proceedelh  from  the  gentle- 
ness of  the  law  towards  criminals,  or  from  a 
consideratioa  that  such  a  power  would  he  more 
pernicious  to  the  innocent  than  useful  to  the 
public,  1  will  not  say. 

It  is  very  certain,  that  the  Taw  ohli^elh  no 
man  to  accuH*^  himself;  because  the  necessary 
means  of  compelhogf  se  I  f^  accusation,  fall  in  ;^ 
upon  the  innocent  as  well  as  the  g'uilty,  would 
lie  both  cruel  and  unjust;  and  it  should  seem, 
that  search  for  evidence  is  disiallowed  itpon  the 
same  pfinciple.  There  too  the  lunncenl  would 
be  confounded  with  the  g^uilty, 

Obierve  the  wi^doui  as  well  as  mercy  of  the 
law.  The  strongest  evidence  before  a  Iriat, 
keinj;  only  rx  parte^  is  but  suspicion ;  it  is  not 
prool'.  \Vpiik  evidence  ia  a  ground  of  suKpi* 
€ton,  thuuirH  in  a  lower  degree ;  and  if  suspi- 
IBIOQ  at  large  should  he  a  j^rouod  of  search, 

VOL,  XIX. 


especially  in  the  cue  of  libelA,  whoie  houts  ] 
would  he  safe  f 

If,  however,  a  right  of  search  for  the  saks 
nf  di^icovering  evidence  ou^ht  in  any  case  toba] 
ullowed,  this  crime  ahove  all  others  uutrbt  to  J 
be  excepted,  as  wanting  such  a  discovery  le 
than  any  other.  It  is  com  nutted  in  o[^n  day*  i 
li^ht,  and  iu  the  face  of  the  world  y  etery  actoCi 
)»ubhcation  makes  ntw  proof;  and  the  solicitor  [ 
of  tbe  treasury,  if  he  pleases,  may  be  the  wit- 
ness himseif, 

Ttje  messeniyer  of  the  prpss,  hy  the  ^eryj 
coniititutioiL  of  his  oflire,  is  directed  to  purchasai 
every  libel  that  conit!*  Ibrtli,  in  order  Io  be  a  ^ 
witJiess. 

Nay,  if  the  vengeance  of  gofernment  re-  1 
quires  a  proiluction  of  the  author,  it  is  hardly  J 
possible  lor  him  to  escupe  the  impeachment  (if  1 
the  printer,  who  is  sure  to  seal  his  own  pardon  ( 
by  his  discovery.  But  suppose  he  should  hap*  I 
pen  to  be  obstintite,  yet  liie  publication  is  stop-*] 
ped,  and  the  offence  punished.  By  this  ineaua] 
the  law  is  satislii^d^  and  the  public  secured* 

I  have  now  lakcn  notice  of  every  thing  thafc  I 
has  been  ui^^ed  upon  the  present  poijit;  anil  I 
upon  the  whole  we  are  all  of  opinion,  that  tho  [ 
warrant  lo  aeize  and  carry  away  the  party *a 
pupers  in  the  case  of  a  seditious  hUel,  is  illegal  I 
and  Ti^id. 

Before  I  conclude,  I  desire  not  to  he  under-  j 
stood  ss  an  advocatt  for  liht4s,  Itl  civdi/ed  ( 
goiernmcntii  ha>e  punished  calumny  wiih  se- 
viriiy  ;  and  with  renson  ;  for  these  composi- 
I  umti  deliauch  the  manners  i4  fhe  people  j  thejF  I 
ext'ite  a  spirit  of  itisohedieuee,  and  enervate  the  ] 
authority  of  govt^rnmenl ;  they  provoke  anil  j 
excite  tbe  passions  of  the  people  against  their  I 
rulers,  aud  the  rulers  oltenttmts  against  tha  j 
people. 

Aftec  this  description,  I  shall  hardly  be  con«»  J 
elite  red  as  a  favourer  of  these  pernicious  pro* 
dticlinns.     1  will  always  set  my  face  against  | 
Ibem,  when  tlit^y  come  before  me ;  and  shall 
recommend  it  most  warmly  to  the  jury  always  \ 
lo  cunirict  when  tbe  proof  is  clear.     They  uil|J 
do  v^ell  to  consider,  that  unjust  acijuittaU  brin^l 
an  odium  upon  the  press  itself,  the  consequenca 
whereof  may  he  fatal  to  liheriy  ;  for  if  kingf  I 
and  i^reat  men  cannot  obtain  justice  at  their  | 
hands  by  I  he  ortlinary  course  of  law,  ihey  may  j 
at  last  he  provoked  to  restrain  that  press,  whicn  j 
the  juries  of  their  country   refuse  to  rej^^uUte*! 
When  hcentiousuFss  is  tolerated,  liberty  is  iqi| 
the  utmost  danger  ;  because  tyranny,  had  aS  I 
it  is,  is  better  than  anarchy ;  and  the  worst  oCj 
efovemments  is  more  tulerahle  than  no  govera* 
ment  at  all. 


[A  great  change  of  the  king's  mlnistera  hap* 
peiied  in  the  July  before  the  judgment  in  the  pre*  1 
ceding  case  ;  pEirticularly  the  marquis  of  ICock*  j 
in^ham  was  placed  at  the  head  of  the  treasury. 
The  judtrn^ tilt  was  soon  followed  with  a  reso- 
liKifm  ot  the  House  of  Commons,  d*;clafing  tha 
nfAzuTQ  of  papers  in  ihe  case  of  a  libel  to  be  \\~ 
legal.  Jfuirn.  Com.  22  April,  176(j.  At  the 
same  tiuie  the  ComQions  passed  a  resolalion 


1075] 


4—10  GEORGE  III. 


'  Case  of  John  WUkes,  eiq* 


tiw« 


condemning  ffeneral  warrants  in  the  case  of 
libels.  The  latter  resolution  was  afterwards 
extended  by  a  further  Tote,  which  included  a 
declaration,  that  general  warrants  wereoni- 
'Versalty  illegal,  except  in  cases  profided  for  by 
act  of  parliament.  Journ.  Com.  S5th  April, 
1766. — All  these  resolutions  were  in  conse- 
quence of  Mr.  Wilkes^s  complaint  of  a  breach 
bf  prifilcge  above  two  years  before.  Journ. 
Com.  15th  November,  1763.  Two  prior  at- 
tempts were  made  to  obtain  a  vote  in  condem- 
nation of  general  warrants  and  the  seizure  of 
toapers,  one  in  1764,  the  other  in  1765.  Journ. 
Com.  14th  and  17th  February,  1764 ;  ^Oth 
January,  1765.  [See,  too,  New  Pari.  Hist.] 
B<it  they  both  had  miscarried,  and  one  of  the 
reasons  assigned  for  so  long  resisting  such  in- 
terposition of  the  House  was  the  pendency  of 
suits  in  the  courts  of  law.  This  objection  was 
in  pai-t  removed  by  the  solemn  judgment  of 
the  Common  Pleas  against  the  seizure  of  pa- 


pers, and  the  ftcqniesoeooifc  in  it.  WlMthcr  tht 
question  of  genera  wamnts  c?er  reeeivcd  the 
same  full  and  pointed-dteinon  in  any  ef  the 
courts,  it  is  not  in  onr  power  at  preasot  to  ia* 
form  the  reader.  The  point  arose  on  the  trial 
of  an  action  by  Mr.  Wilkes  against  Mr. 
Wood  ;  and  lord  Camden  in  his  charge  to  the 
jury  apiiears  to  have  explicithr  arc  wed  hii 
own  opinion  of  the  illegality  or  general  war« 
rants;  but  what  was  dene  afterwards  is  ml 
stated.  How  a  regular  judgment  i»f  the  poial 
was  aroidedy  in  the  case  of  error  in  the  King^ 
bench  between  Money  and  Leach*  -  by  con* 
ceding  that  the  warrant  was  not  pnrsued,  wt 
hare  obsenred  in  a  former  Note,  see  p.  lOML 
As  to  the  action,  in  which  Mr.  Wilkea  finally 
recovered  large  damages  from  the  eari  «f 
Halifax,  it  was  not  tried  till  after  the  decbi 
ratory  rote  of  the  Commons,  which  most  fm 
bably  pre?ented  all  argument  on  the  snljiect 
JSargrove.] 


542.  Proceedings  in  the  Case  of  John  Wilkes,  esq.  on  two  Lh 
formations  for  Libels,  King's-Bench  and  House  of  Lords; 
4  George  IIL — 10  George  IIL  a.  d.   I76S— 1770. 


[This  Case  is  wholly  extracted  from  sir  James 

Burrow'4  Reports.  4Bnrr.253r.] 

Wcdnaday,  February  7, 1770. 

As  this  cause,  in  the  several  branches  of  it, 
came  several  times  before  the  Court,  it  seemed 
better  to  reserve  a  general  account  of  it  till  a 
final  conclusion  of  the  whole,  than  to  report 
the  ||>articu]ar  parts  of  it  disjointedly,  in  order 
of  time  as  they  were  respectively  argued  and 
determined. 

In  Michaelmas  Term  1763,  the  4th  year  of 
his  present  majesty  king  George  the  dd,  sir 
Fletcher  Norton,  then  his  majesty's  solicitor- 
general,  (the  office  of  attorney -general  being 
then  vacant,)  exhibited  an  information  against 
Mr.  Wilkes,  for  having  published,  and  caused 
to  be  printed  and  published  a  seditious  and 
scandalous  libel  (the  North  Briton,  N""  45.) 

And  soon  after,  he  exhibited  another  infor- 
mation against  him,  (the  office  of  attorney- 
general  still  remaining  vacant,)  for  having 
printed  and  published,  and  caused  to  be  nrinted 
and  published,  an  obsceue  and  impious  libel  (an 
Essay  on  Woman,  &c.) 

Mr.  Wilkes  having  pleaded  Not'  Guilty  to 
both  these  informations,  and  the  records  being 
made  up  and  sealed,  and  the  causes*  ready 
for  trial,  the  counsel  for  the  crown  thought  it 
ex|>edient  to  amend  them,  by  striking  out  the 
word  *  purport,*  and  in  its  place  inserting  the 
word  *  tenor.*  The  proposed  amendments  were 
in  all  those  parts  of  the  information  where  the 
^  ■  ■ 

*  Tbej  were  tried  on  the  21st  of  February, 

tru. 


charge  was,  that  the  libel  printed  and  pnblfaM 
by  BIr.  Wilkes  contained  matters  *  to  the  pai^ 
port  and  effect  following,  to  wit :'  which  ths 
counsel  for  the  crown  thought  it  advisaUs  Is 
alter  into  words  importing  that  such  libel  eoa^ 
tained  matters  '  to  the  tenor  and  effect  f  " 
ing,  to  wit.* 

Sir  Fletcher  Norton  (then  become 
attorney- general)  directed  Mr.  Barlow,  dcriE 
in  court  for  the  crown,  to  apply  to  a  judge  ftr 
such  an  order ;  apprehending  it  (as  ne  aftn> 
wards  publicly  declared)  to  be  a  matter  «f 
course. 

Mr.  Barlow,  in  pursuance  of  these  directioBi, 
applied  to  lord  Mansfield,  for  a  summon  li 
shew  canse  '  why  such  amendment  should  sst 
be  made.'  And  his  lordship  issued  a  sommsai 
in  each  cause,  dated  18th  of  February,  1764, 
for  the  defendant's  clerk  in  court,  agent,  at- 
torney or  solicitor,  to  attend  him  at  his  boon 
in  Bloomsbury -square  on  Monday  the  SOth  of 
February  at  eight  o'clock  in  the  morning;  ts 
shew  cause  why  the  information  should  not  Is 
amended,  by  striking  out  the  word  *  purport,* 
in  the  several  places  where  it  is  mentioned  ii 
the  said  information,  and  inserting  iastesl 
thereof  the  word  ■  tenor.'  N.  B.  The  sua- 
moos  in  the  cause  relating  to  the  seditions  Hid 
excepted  the  first  place — <  except  in  the  M 
place.' 

On  notice  of  this  summons,  Mr.  PhiRM 
agent  and  solicitor  for  Mr.  W^ilkes,  and  llr. 
Hughes  bis  clerk  in  court,  and  attorney  ft* 
him  upon  the  record,  both  attended  his  Mid> 
ship,  at  his  own  house,  upon  the  said  90lh  rf 
February  1764,  accordingly,  (bong  now  va» 
tion  time,  and  no  court  sitting;)  and  dU  ^/^ 


107T] 


on  two  Informationsfir  LHeb. 


A.  D.  1763— 177a 


[1078 


^ect  to  the  Droposet)  ameudment:  on  the 
eofitr&ry,  Mr.  11  tithes,  upon  being  Asked  as  a 
fair  prActiier,  c&aiiiUly  acknowledged  *  that  it 
vim  ametidAbtc ;'  and  Mr.  Philips  acquiesced 
I  in  it,  tboug^h  he  aatd  he  could  not  consent  to  it, 
Lord  ftlansfjeid  havinfi^^  iti  the  preseoce  of  these 
^cutleiueo,  consulted  and  proonced  many  pre- 
eedetiM,  and  being  fully  satisfied  ^  that  the 
nmendment  might  be  made,  and  that  it  might 
ha  tnadi:  by  a  ^ini^le  judge  at  his  house  or 
cbambers,'  told  Mi\  Philips,  *  that  there  was  no 
heed  of  hid  consent  ;*  and  immediately  made 
the  following  order — *'  Upon  bearinjf  the  clerks 
in  couiton  ooth  sides,  1  do  order  that  the  in* 
Jbrmation  in  this  caute  be  amended ;  by  strik- 
ing out  the  word  *  purport*  in  the  sereral  ptace« 
IwCere  it  is  mentioDed,  in  the  said  information, 
p&i]  by  iDsertiny  insteail  thereof  the  word 
•  tenor.*     Dated  Ibis  30lh  day  of  February 

The  orders  in  both  cauves  were  exactly  alike ; 
ffinly  that  the  words  *  except  in  the  first  place* 
added  in  that  of  the  infonnaiiuti  for  the 
ous  libel. 
Bfr.  VV tikes  was  at  this  time  in  France; 
Wbitber  be  had  voluntarily  retired  some  time 
^tiefore,  and  from  whence  he  did  not  return  till 
towarda  the  election  of  mem  ben  for  the  new 
parliametil  (into  which  be  was  afterwards 
chosen,) 

I      The  trial  came  on  at  the  appointed  time,  and 
timri-#'/UI  ir*  the  usual  manner;  Mr.  Wilkes's 
-puts  making  no  objection  there- 
I  ^  ig  to  enter  into  his  defence,    Ver- 

0iat9  were  tound  against  him,  upon  both  infor- 
IBlliOfis:    after    which,   judgment  was  duly 

Eed  agiinst  bim,  in  each  cause;  and  writs 
Da  pi  as  were  awarded  and  issued  against 
,  at  in  ordinary  coses  of  con^icttous  upon 
informations  for  miNdeciieanours.^ — Upon  his 
tion»Bppearnnce,  the  proceedii>gs  were  carried 
Oa  to  pn>claraatioii  and  exigents:  and  upon  his 
®ol  ap|»eariug  on  the  tilth  time  of  being  ex- 
mcttd,  be  wa«,  U^  the  judgment  of  the  coroners 
»f  the  county  of  Middlesex,  according  to  the 
liw  and  custom  of  the  realm,  outlawed. 

Co    Wednesdrty   the   20th   of    April    1768, 
fbeiog  the  Isi  day  of  Eahter  Term  1708,)  soon 
iller  Ibe  sitting  of  the  Court,  and  l»efore  any 
bad    istued    on    this   otitis  wry,    Mr* 
ilkea  Toluotarily  made  his  personal  appear- 
nee  in  it ;    accomjianieit    hy    three  or  four 
ids,   who   prohably  meant  to  bi^come   his 
I,  in  case  of  hie  being  now  odmitted  to  bail, 
lie  opened  with  a  speech,  which  is  already 
print,*  and  therefore  needs  not  b**  here  re- 

^  II  was  printed  io  the  public  papers  of  the 
pext  dtky\  21»t  of  April  176B.    Burro wv 

\     It  IS  aUo  inserted  in  the  Annual   Register 
br  the  year  17(j8,   Chronicle  p.  93,  ai»d  is 

••  Mv    lords ;    aceorditig  to  the  voluntary 
iron  de  to  the  public,   I  now  appeur 

itlWri  eraiga  court  of  justice,  to  sub- 

IB  jraalT  itt  ercry  ibiii^  ta  ibe  laws  of  my 


peated.  He  took  notice,  in  it,  that  the  re- 
cord was  altered,  before  the  trinl.  by  lord  IVfans* 
field *s  order :  so  that  he  was  tned  upon  altered 
facts.    This  he  particularly  complauted  of»  as^ 

country.  Two  verdicts  have  been  found 
against  me,  one  is  for  the  repuhlicatiou  of  tha 
North  Briton,  N*  45,  the  other  for  the  publica* 
tion  of  a  1  ndicrous  poem.  As  to  I  he  republica- 
tion of  the  number  of  the  Morth  Briioot  I  ean- 
DOt  yet  see  that  tl>ere  is  the  smallest  degree  of 
guilt.  1  have  ot\en  read  and  examinetl  that 
famous  paper.     1   know  that  it   is   in   e?ery 

Sart  founded  on  the  strongest  evidence  of  facta* 
find  it  full  of  duty  and  respect  to  the  pcrsoti 
of  the  king,  alttiough  itarraigus,  in  the  severest 
manner,  the  ronduct  of  his  majesty's  then 
ministers,  and  brings  very  heavy  charges  home 
to  them.  1  am  persuaded  that  they  were  well 
grounded,  because  every  one  of  those  ministers 
has  since  been  removed.  No  one  instam:e  of 
falsehood  baa  yet  been  pointed  out  in  that  pre- 
tended libel,  nor  was  the  word  *  false*  in  thi 
information  beta  re  this  Court.  I  am  therefore 
perfectly  easy  under  every  impulatiun  re* 
spec  ting  a  paper,  in  which  truth  has  guided 
the  pen  of  the  writer,  whoever  he  was,  in  every 
single  line ;  and  it  is  this  circumstance  whica 
has  drawn  on  me  as  the  supposed  author,  all 
the  cruellies  of  ministerial  vengeance.  As  to 
the  other  charge  against  me,  lor  the  publica- 
tion of  a  poem  which  has  given  just  otf'eoce,  I 
will  assert  that  such  an  idea  never  eutt^red  my 
mind.  I  btu^b  ttgain  at  the  recidlectuin  that  il 
has  been  at  any  time,  and  in  any  way,  tiroughl 
to  the  public  eye,  and  drawu  from  the  obf^unty 
in  which  it  remained  under  my  roof.  Twelve 
copies  of  a  small  part  of  it  had  been  printed  to 
my  house,  at  my  own  private  press :  1  had 
carefully  locked  them  upfSod  1  never  gave  one 
to  the  roost  inlimaie  frteml.  Gofernment, 
after  the  affair  of  the  North  Oritou,  bnbed  one 
of  my  ser^'ants  to  rob  me  of  llie  copy»  whicb 
was  produced  in  the  House  of  Peers,  and  after- 
wards before  this  honourable  Court.  The 
nation  wasjnstly  offentled,  hut  not  with  me,  for 
it  is  evident  that  1  have  not  been  guilty  of  the 
least  offence  to  the  public.  1  pray  God  to 
forgive,  as  I  do,  the  jury  who  have  found  me 
guilty  of  publishing  a  poem  1  cofieealod  witb 
care,  and  which  is  not  even  yet  published,  if 
any  precise  meaning  can  be  amxed  to  any  word 
in  our  language.  But,  rny  lonls*  neither  of 
the  two  verdicts  could  have  been  louuil  against 
me,  if  the  records  had  not  hi^eu  maierially 
altered  without  my  consent,  and,  as  I  am  in- 
formed, contrary  to  law.  On  the  evening  only 
before  the  two  iriali»  the  ly>rd  Chief  Justicd 
caused  tbfi  records  to  be  altered  at  his  own 
bouse,  Bgninsl  tlie  consent  of  my  solicitor,  and 
without  my  koowleilge;  lor  a  dantterous  ill* 
ness,  arising  from  uti  nffutr  of  hoiioiir,  detained 
me  at  timt  time  abroail.  The  iilteration^  were 
of  the  utmost  importance ;  and  I  wu«  rn  coose- 
ijuence  tried  the  very  next  day  on  I  wo  new 
charges,  of  which  1  c<»nld  know  noihing ;  1 
will  Teoture  to  declare  lUia  ^t^siOfc^va^  >MEvsiSirac 


1079] 


4-.10  GEORGE  UI. 


Cate  ffJohn  WUlei,  e$q. 


[1060 


being  unconstitutioDal  and  illeiral ;  and  wu 
advised,  he  said,  that  it  rendered  both  the  Ter- 
dicta  absolutely  void. 

Mr.  Attorney  General  (Mr*  De  Orey^  prayed 
that  Mr.  Wilkes  might  stand  committed ;  as 
he  had  been  convicted  of  printing  and  publish- 
ing one  of  these  libels,  and  of  publishing  the 
other ;  and  had  now  avowed  himself  to  1^  the 
person  so  convicted. 

Mr.  Serjeant  Glynnt  of  counsel  for  Mr. 
Wilkes,  opposed  this.  He  said,  he  had  several 
objections  to  the  outlawry;  and  that,  till  last 
night,  they  had  expected  a  Fiat  for  a  writ  of 
error :  but  that,  last  night,  Mr.  Attorney  Ge- 
neral declined  mnting  one,  because  he  doubted 

*  whether  it  belonged  to  his  office  to  grant  it,' 
or  '  whether  it  ought  not  to  be  granted  by  the 
lord  chief  justice.'*  He  said,  Mr.  Attorney 
General  did  not  refuse  his  Fiat,  from  any  doubt 
about  the  propriety  of  the  application  for  it,  or 
the  sufficiency  of  the  objections  to  the  out- 
lawry ;  but  merely  from  a  doubt '  to  whom  it 
belonged  to  allow  the  writ  of  error.'  He  said, 
he  would  propose  some  errors,  which  he  hoped 
would  satisfy  the  Court  that  a  writ  of  error 
ought  to  be  granted.  They  were  of  two  sorts : 
ilrst,  errors  in  fact ;  2dly,  errors  in  law. 

1st.  An  error  in  fact  was,  •  that  Mr.  Wilkes 
was  absent  and  out  of  the  kingdom,  at  the  time 
of  the  award  of  the  writ  of  Exigent.' 

Sdly.  Three  errors  in  law.  First,  *  that  the 
•beriff  has  returned  no  proclamations.'  It  is 
only  said,  *  that  he  has  obeyed  the   writ ;' 

stitutional.  I  am  advised  that  it  is  illegal,  and 
that  it  renders  botb  the  verdicts  absolutely  void. 
I  have  stood  forth,  my  lords,  in  support  of  the 
laws  against  the  arbitrary  act  of  ministers. 
This  court  of  justice,  in  a  solemn  appeal 
respecting  general  warrants,  shewed  tneir 
sense  of  uiy  conduct.  I  shall  continue  to  re- 
verence the  wise  and  mild  system  of  English 
laws,  and  this  excellent  constitution.  I  nave 
been  much  inisrepresented,  but  under  every 
species  of  persecution,  I  will  remain  lirm  and 
friendly  to  the  monarchy,  dutiful  and  affec- 
tionate to  the  illustrious  prince  who  wears  the 
crown,  and  to  the  whole  Brunswick  line.  As  to 
all  nice  intricate  points  of  law,  I  am  sensible 
how  narn)w  and  circumscribed  my  ideas  are  ; 
but  I  have  experienced  the  deep  knowledge 
and  great  abilities  of  my  counsel.  With  them 
1  rest  the  legal  part  of  my  defence,  submitting 
every  point  to  the  judgment  of  this  honourable 
Court,  and  to  the  laws  of  England." 

It  appears,  that  the  omission  of  the  word 

*  false,'  noticed  by  the  defendant,  had  been 
adopted  by  sir  Fletcher  Norton,  for  the  pur- 
pose of  contracting  the  scope  for  dispute  be- 
tween judges  and  juries  ;  concerning  which,  see 
vol.  8,  p.  .  8ee  also  the  Dean  of  St.  Asaph's 
Case,  A.  D.  178  .  Concerning  the  words  *  fal86 

*  et  malitios^'  in  indictmenta  and  informations 
for  libels,  see  Emiyn's  Preface  inserted  b 
▼d.  ],  p.  XXX,  xxxi. 

•  See  Salk.  S6i,  pi.  7,  504,  pK  9. 


whereas  he  ought  to  have  retamed  particolait; 
that  the  Court  might  judge  of  tbem.  Secoodiyi 
it  is  not  stated  in  the  retom  of  the  ExigaM» 

*  that  Mr.  Wilkes  was  exacted  in  the  ooaoty  of 
Middlesex :'  nor  is  it  said  to  be  *  at  a  coaoty 
court.'  It  is  only  said  to  be  *  at  bta  oooBty- 
court  at  the  Three  Tons  in  Brook-atreet  ne» 
Holboro,  in  the  county  of  Middlesex :'  which 
is  DO  allegation  '.that  Brook-atreet  is  in  tbt 
county  of  Middlesex.'     And  though  it  ia  said 

*  at  my  coonty-oonrt,'  yet  be  might  be  sheriff 
of  two  counues.  He  cited  S  Roll's  Abr.  SOti 
title  *  utULgairCf  error  utlagarie*  Thirdly,  m 
judgment  of  the  coroner  is  here  stated ;  bit 
only  a  mere  fact,  •  that  he  was  outlawed  by  Ibt 
coroner.'  In  support  of  which  objeclMMi,  bt 
cited  1  Brown's  Entries  361,  as  ih  point,  fla 
therefore  prayed  that  his  londship  would  | 
Mr.  Wilkes  an  allowance  of  his  writ  of  ( 
in  order  to  his  getting  this  erroneous 
reversed.  He  said  it  was  improper  at  this  tiae 
to  enter  into  any  litigation  about  the  validiiy  of 
the  convictions  upon  which  these  judginmli 
are  founded.  Mr.  Wilkes's  present  cireaM* 
stances  under  the  outlawry  are  more  penal  thaa 
the  convictions  themselves.  Therefore  it  ii 
incumbent  upon  him,  first  to  get  rid  of  the  oat- 
la  wry.  Ana  he  prayed  that  Mr.  Wilkea  migbt 
be,  in  the  mean  time,  admitted  to  bail. 

Mr.  Recorder  of  London,  [Eyre,  aflerwaidi 
successively  baron  aud  lord  cnief  baron  of  tka 
Exchequer,  and  lord  chief  justice  of  C.  B.}«i 
the  same  side,  enftbrced  what  the  Serjeant  hrf 
urged ;  and  observed,  that  by  4,  5  W.  aadK  | 
c.  18,  §  4,  Mr.  Wilkea  was  not  compeUaUets  ' 
appear  in  person ;  but  might  have  appeared  Iry 
attorney,  and  reversed  the  outlawry  witbsal 
bail  Sunless  otherwise  entered  by  the  Cowl) 
He  therefore  proposed,  that  be  should  either 
appear  by  attorney,  to  reverse  it ;  or  give  bsi 
to  prosecute  a  writ  of  error.  Aud  he  cited  £s^ 
bury's  case  iu  this  court,  in  Easter  and  Trinity 
Terms  1723,  9  Geo.  1.* 

Mr.  Manxfieldj  on  the  same  side,  argued  tbal 
Mr.  Wilkes  was  clearly  intiUed  to  be  admittii 
to  bajl,  under  this  statute.  The  convictiosi 
cannot  at  this  time  be  procee«led  upon ;  as  tks 
sentence  of  outlawry  is  standiocf  out  agiisil 
him.  He  has  done  all  that  is  in  his  power  is 
do.  He  appears  in  court,  and  submits  to  the 
laws  of  his  country.  He  has  shewn  ernes  of 
weight,  in  the  ouilawry  ;  and  has  used  all  ise- 
thods  to  obtain  a  writ  of  error  to  be  allowed; 
and  prays  to  be  admitted  to  bail  by  the  Coait, 
as  he  must  have  beeu  by  the  sberiif,  if  he  bsi 
been  taken  upon  a  Capias  Utlagatum. 

Mr.  Davenport,  on  the  same  side,  spoke  IS 
the  same  effect. 

Mr.  Attorney  General  explained  the  ftel, 


*  That  case  was  an  outlawry  for  noo-aa* 
pearance ;  f  have  a  note  of  it,  of  my  own  tak- 
ing. And  there  is  a  report  of  it  in  Porteseii 
Aland  37,  and  another  in  8  Mod.  177,  veiy  M 
in  the  1st  edition,  bat  much  mended  inlheM 
edition  of  that  book.    Borrow. 


on  two  hi/brmattonsjir  Libels. 


e  reason  of  bis  il^clifim^'  tn  griitit  ihe  lial 

rrit  iiferror.     He  Maul,  that  upon  the  ap* 

ftD  m«de  to  hirii  on  the  part  uf  ihe  tie- 

I,  he  directeil  an   aiiendnfice  t    which 

I  Dcorttingly  ha<L     That  he  ihou^ht  llie 

ipecifieil  10  him,  to  be  ii  sufficient  foun- 

I  lor  a  tiai,  10  c«<>p  the  party  had  been  tti 

I  fi  bill  he  coiitil  II ui  (iiid  any  preceJent 

I  attorney -(general's  ^rttuUn^a  fiat  when 

I  My  i»aa  not  la  coitlody,*     The  writ  of 

|ra»  not  t««iitlereil  to  him^  be  ssaid.  Itll  last 

and  lUe  Court  waa  to  sit  ihb  mornini^. 

IS  ready  to  HMteu  to  any  rueihud    that 

kave  he«u  sh^v^n  to  be  proper  :  but  none 

,  )ro)>oKcd.      He  added^  ihut  be  thouji^lit 

^ilkea*  could  not  he  intitled  lo  his  whL  t}f 

till  he  should  be  in  custody.     He  ob^ 

I  ^  that  this  was  not  an  outlawry  for  oon- 

Ince ;  but  an  outlawry  upon  and  after 

:  Ion. 

I  Mamfeld.     I  fere  are    two    onottons 

I  upon   ihc  defeudanl*s   appearing  per- 
I !  in  court :    one«  for  comiuitliu^  hixu  ; 

iTTp  for  hading  binn. 

II  of  opinion   against  both   th»e  mo- 

m^bt  to  be  brotigbt  in  repularly,  upon  a 

of  the  Capias  by  the  sheriff.     1  bare  no 

but  iliat  we  mitrbt  lake  nuttce  of  him, 

K$  fohinlory  appearance  as  the  person 

I  id  ;    and  c(»mmit  or  bail  him  ;    hut  we 

I  laUolutply  bfiiind  to  do  it,  withoui  some 

I  to  eJtcuse  Ibe  ^oing^  tiut  of  the  reguJar 

i  ^  dffendant  could  shew  that  the  attor- 
I  inral  ret  used  to  take  him  up  and  hrin|( 
K»  cocirf,  to  onler  to  prevent  \m  bavinp^ 
Paniaue  ;  or  if  the  atii»rney  general  bad 
Q<ed  all  methods  to  take  him  up,  and  be 
Dcealed  himseff  and  absconded,  and  af- 
N  bad  come  in  thus  vidiintarily .  in  order 
hze  ;  upon  either  of  ihesie,  oi  nny  other 
lliiiary  ground,  we  sliould  he  bound  to 
le*  and  overlook  the  impropriety  of  the 
tnt^B  coming,  instead  of  beiog  brought 

the  real  catiw  of  this  irrei^utarlty  is  the 
it  argument^  wjiy  we  Hhuutd  not  (^ive 
I  a  new  mode,  liable  to  misconstructitMi, 
yying  a  bad  uppenrance.  ft  is  noto- 
^at  the  defVndnnt  has  nppeared  fery 
f :  why  was  be  not  apprehended? 
outlawry  must  cerium ty  be  disposi^d  of, 
Vou  can  come  at  any  thing  else :  the 
nl  upon  (he  conrictions  cannot,  at  pre- 
*  proceeded  uf»on. 

lid  wiih  this  gentleman  bad  been  better 
ihun  to  b'live  come  thus  prematurely, 
lirritleii  speech  to  justify  the  Crimea  of 
fc.    ■ ■ — —^ 

u  the  Stat,  4  and  5  W.  and  M.  c.  18. 

If  wi>  ^'e  one  xj^uinsi  Hlmm  there  is  a 
lit  of  till*  Court  walk  in  Westminster- 
f*  lid  imt  Bu  ofKier  to  lake   bitn 

li  desires  it,  without  a  writ  of 


A.D.  1763—1770-  [1084 

which  He  tiands  con? icted;  and  to  arraigti  an 
order  made  by  me, 

I  am  very  happy  in  having  ihia  opportunity 
of  eiLpluming  my  conduct  in  making  the  amend- 
ment that  lias  been  mentioned.  If  I  wai 
wrong,  1  should  tiimk  it  more  honourable  to 
acknowledge  and  rectify  any  error  that  I  should 
have  committed,  than  to  justify  and  defend  it, 
Tbe  application  to  me  waa*  to  amend  the  word 
•purport*  into  *  tenor.*  Mr.  ilughes,  the 
clerk  in  court  for  the  defendant,  agreed  it  id 
be  amendable,  t  recollected  a  case  of  the  Kk# 
kind,  of  an  amendment  of  an  information  just 
before  trial :  and,  looking  for  it,  I  found  a  col* 
lection  of  such  cases.  After  reading  one  or 
two,  Mr.  PbilipS)  attorney  and  agmt  for  tbe 
defejidanl,  was  perfectly  saiisfted,  and  desired 
me  not  to  give  myself  any  further  trouble ;  but 
said  '  be  could  not  consent  to  it.'  1  said,  *  I 
did  not  want  a  consent  :*  I  thought  myself 
hound  tu  order  the  amendment;  and  did  so,*    I 

*  Great  clamour  was  raised  by  Witkes^s 
partisans  against  lord  Mam  field  for  causing 
this  amendment  to  be  made.  The  fratisactioD 
was  mentioned  with  much  acrimony  in  tbe 
**  Letter  concerning  Libels,  Warrants,  Seizure 
of  Papers, *N^c,  whrch  caused  the  attorney  ge* 
neral  (sir  Fletcher  Norton),  to  move  the  Court 
of  iCin^Vlieiich  for  an  attachment  against  Mr. 
Almon,  tbe  pubhNber  of  that  letter.  It  appeaiY, 
that  the  matter  was  argued  upon  a  rule  tobhew 
cause  Hhy  a  Mrit  of  attachment  should  not  be 
issued  ;  the  p^ocee<^inJ^'5,  however,  were  discon- 
tinued. Mr.  Ju;»tice  Wilmot  had  prepared  a 
learned  opinion  on  ihe  punishment  of  contempt 
by  attachinem,  which  is  puldisbed  in  the 
"  Notes  of  his  Opinions  and  Judgments^"  Ice* 
p.  243. 

Ill  *  Another  Letter  to  Mr.  AIidoii*  ii  the  fol* 
lowing  passage : 

»*  Let  us  recollect  what  a  noise  Ibc  altera- 
tion of  a  recoid,  after  issue  joined,  produced  ; 
it  being  unusual.  Atter  discussion  and  sfarcn 
of  precedents,  it  was  lound  lo  be  sufficii^ntly 
warranted  both  by  law  and  practice.  It  mav 
be  dune  by  any  j'ldije  at  his  bouse,  the  lery  nil* 
nute  before  triiit  without  the  dt'fendanl*acousenl. 
llowetrcr,  nothing  but  a  solemn  decision  on  tbe 
[K»int  would  bate  appeased  all  discontent  about 
it.  Tbe  notion  that  a  defendant  mij^ht  hafe  so 
far  truiited  to  some  flaw  in  the  pteadingSi  which 
he  was  well  advised  would  be  fatal,  as  to 
forego  ihe  bringing  of  Itstimony  in  his  behalf, 
notwithstanding  he  really  could  have  doueso^ 
was  ihe  ground  of  people's  alarm.  The  making 
of  a  defence  on  the  merits  necessary ,  just  ae 
the  cauae  i»  called  on»  which  was  unnecessary 
before  I  made  the  world  conceive  an  honest  de- 
fendant miy:hi  lie  conticted  sometimes  by  siir- 
prixe^  and  that  such  an  alteration  of  the  lecord 
could  not  therefore  be  just,  and  consequently 
not  legal.  They  had  heard  that  it  h«ii 
grounded  a  complaint  to  parliament  in  •<^"*J 
William's  time,  airainsi  a  iudire  (one  Hollowly 


1083] 


4^10  GEORGE  III. 


Case  tfJohn  WUkesy  esq. 


[lOM 


hid  made  somesach  orders  before ;  aud  I  ba?e 
made  sereral  such  orders  since ;  even  in  dao 
IVarranto'JnformatioDS.  In  this  case,  it  made 
no  alteration  in  the  defendant's  defence.  His 
counsel  never  objected  to  it,  nor  took  any  no- 
tice of  it.  1  think  it  rifj^ht  and  usual,  and  as 
of  course ;  not  but  that  I  am  open  to  conviction, 
and  ready  to  hear  what  can  be  said  to  shew 
that  it  was  wrong. 

Mr.  Justice  Yates.  If  this  amendment  was 
wrong,  it  will  still  be  open  to  the  consideration 
of  the  Court ;  although  the  proper  opportunity 
of  objecting  to  it  was  at  the  trial.  In  the  case 
of  the  King  against  Charlesworth,  an  informa- 
tion for  forging  a  warrant  of  attorney  '  to  ac- 
knowled^  satisfaction  upon  a  judgment,*  was 
amended,  without  costs  (the  prosecutor  having 
been  admitted  a  psuper),  and  without  giving 
the  defendant  leave  to  plead  de  novo,  2  Stra. 
•71. 

As  to  the  two  present  opposite  motions,  one 
for  committing,  the  other  for  bailing  the  defen- 
dant ;  the  same  answer  serves  for  both  :  '  the 
Court  can  take  no  notice  of  any  thing  but  what 
comes  judicially  before  them.'  Vre  cannot 
take  cognizance  of  this  matter,  in  the  method 
in  which  it  now  comes  before  us :  we  cannot 
take  judicial  notice  *  that  this  is  the  person  con- 
Ticted  or  outlawed.*  Mr.  Browne's  case  in 
Dyer  199,  is  clear  and  strong,  as  to  the  out- 
lawry. And  as  to  committing  him  upon  the 
convictions,  that  can't  be  done  whust  the 
outlawry  is  subsisting:  the  outlawry  must 
first  be  disposed  of,  before  we  proceed  upon 
the  convictions.  The  judgment  of  outlawry 
•ospends  all  proceedings  upon  them.  The 
judgments  on  the  convictions  would  pro- 
DabTv  be  fine  and  imprisonment.  But  it 
would  be  rosnifest  oppression  to  set  a  fine 
upon  him,  when  all  his  efiects  stand  forfeited 
to  the  king  already :  and  he  is  already  liable  to 
imprisonment  upon  the  outlawry  ;  from  which 
he  can  never  be  freed  whilst  that  stands  in 
force.  There  cannot  be  two  difierent  judg- 
ments for  the  same  offence:  there  cannot  be 
judgmaent  of  outlawry,  and  judgment  for  the 
miMemeanour  likewise.  In  the  case  of  the 
King  and  Queen  against  Tippin,  1  W.  and  M. 
Salk.  494,  the  defendant  was  outlawed  upon 
an  information  for  a  misdemeanour,  and  fined 
5,000/.  It  was  moved,  on  his  behalf,  that  he 
could  not  be  fined  upon  Uie  outlawry  ;  because, 
in  misdemeanour,  the  outlawry  does  not  enure 
as  a  conviction  for  the  offence,  (as  it  does  in  cases 
of  treason  and  felony,)  but  as  a  conviction  of  the 
contempt  for  not  answering ;  which  contempt 
is  puuisned  by  the  forfeiture  of  his  goods  and 
chattels :  and  if  be  might  be  fined  now,  be 

torious,  and  nobody  in  particular  can  be  in- 
jured by  such  practice  hereafter ;  Mr.  Wilkes 
DO  more  than  Dr.  Shebbeare.  The  occasion, 
too,  frequently  adds  to  the  suspicion,  and 
none  is  so  likely  to  minister  ground  of  of- 
fence as  the  cate  of  a  writer  against  admi- 
niitratioiu*' 


must  be  fined  again,  upon  the  principal  jadf- 
ment.  And  the  first*  was  bekl  to  be  uregabr  i 
for  the  outUwry  in  these  casea  is  not  a  o» 
fiction ;  as  appears  by  FleCa  48.  *  Ommvi 
<  quis  pro  oontumscia  et  foga  ntlagctori  mi 

*  propter  hoc  convictus  est  de  facto  princuiiJI 
And  there  is  a  case  in  Bro.  Abr.  title  *  llHih 

*  gary,'  pi.  26,  where  a  maa  was  ootlawii  tf 
felony,  and  taken  by  a  Capias  UtlagataOH  sii 
detained  iu  the  King's-beoch ;  and  di? cia  Ub 
were  brought  as^nst  him  io  custody  of  iki 
marshal :  and  tbe  Court  wookl  not  softrfc 
For,  his  body,  lands,  and  goods  are  tbe  kprtt 
and  therefore  the  plaintiff  cannot  have  the  •• 
feet  of  his  suit  against  him  before  tbe  entlawn: 
but  if  he  obtains  a  pardon,  the  plaintiff  shalii 
answered.  If  the  defendant  in  tbe  pnHl 
case  had  come  in  by  process,  his  identity  vmU 
have  appeared.  If  he  had  come  in  by  nesdt 
he  might  have  applied  to  be  bailed,  either  SM 
the  statute  of  4,  S  W.  and  M.  c.  18,  (d  M 
statute  can  be  shewn  to  be  applicable  loans* 
lawry  on  a  misdemeanour),  or  nnder  Ai 
plenary  power  of  the  Court  upon  tbe  ciiCMi 
sunces  of  his  case.  But  that  atatnic  sbhi 
only  applicable  to  civil  cases.  I  mentioa  iM^ 
only  for  the  consideration  of  the  oounad,  vki 
it  shall  come  before  the  Court.  By  the  S* 
section,  the  sheriff  may  *  take  secunty  of  Al 
'  defendant  taken  upon  a  Capias  UtlagatoBiii 
'  cases  where  lutil  is  required,  in  donUe  *i 
'  sum  for  which  bail  is  required.'  Bnt  bsf 
can  the  sheriff,  under  the  directions  of  tUstf^ 
tute,  take  bail  in  double  tbe  sum,  in  n  criasal 
case  ?  How  can  the  sheriff  know  what  Ihl 
fine  will  be  ?  Or  why  should  tbe  aam  af  Ik 
fine  be  doubled  f  The  statute  seems  Is » 
late  only  to  civil  cases,  and  to  mean  *  dsiHi 
the  debt.' 

The  defendant  ought,  in  my  opinion,  ta  hm 
come  hither  in  a  regular  way :  bat  as  Ai 
matter  now  stands,  upon  this  voluntary  if* 
pearance,  without  return  of  procesa  or  ssj 
matter  of  record  whatsoever,  tbe  Court  oi 
neither  commit  him  nor  bail  him. 

Mr.  Justice  Aston.  I  think  there  is  but  isi 
question :  and  I  shall  keep  to  that.  It  ii^ 
^*  whether  he  shall  be  committed.'*  Tbs  H* 
tomey-general  prays  us  to  commit  a  UMsn 
an  outlaw,  against  whom  he  himself  wooMHt 
issue  process  of  outlawry  ;  though  thers  A 
not  appear  to  he  any  particular  circunnslsaai 
to  prevent  his  issuing  such  process.  Thssfi* 
cers  of  the  crown  might  have  exercised  tiMir 
power  by  proper  process;  and  then  he  wssli 
have  been  in  custody.  But  they  have  all 
chosen  to  do  so:  and  he  remains  as  much  A 
his  Hbertjr,  as  he  was  before  he  came  into  es«i 
The  motion  to  commit  him  seems  udbsssi- 
sary :  and  I  shall  not,  at  present,  take  oodei 
of  any  other  question ;  be  not  being  at  sU  b 
custody. 


*  <<  1  suspect  this  woid  •  first'  to  be  l^ 
error  of  the  press ;  and  that  it  ibssM  If 
•fine.'"    Burrow. 


OM  two  Lf/brmathnsjbr  LibcU^ 


A.  D.  1768— ma 


zvm 


Wilies,  There  liis  been,  for 
a  judgment  of  otiOdirry  agraiiisi  the 
who  if  not  mn  abscomlicif;  peraon. 
ley-getiermt  hns  net  thought  proper 
toema  sgainst  him  upon  it*  Aod 
>me«  into  court  gratis,  ToluDtarify, 
return  of  process,  or  any  matter  of 
e  cannot  take  any  notice  at  all  of 
can  we  know,  judicially,  that  he  ii 
A,  1  doo^t  tee  ivlty  the  attorney- ge- 
hm\^  demand  of  the  Court  to  commit 
ieDdiOf  upon  this  outlawry*  when  be 

Ioiig  suffered  him  to  go  at  large, 
jUtempt  to  take  him  up,  or  e? en 
p  against  him. 
Iji  taken  by  either  of  the  two  mo* 
y,  the  attorney  gencrars,  ^  that 
Rmtlani  might  be  committed  ,*  or  hia 
Qjiflel^  *  that  he  might  be  bailed.' 

Wednesday  the  anh  of  April  1768,  (a 

fterthe  former  transaction,)  Mr.  Wilke* 

tbis  morning  surrendered  himself  to  (he 

lescx  upnn  a  Capias  Udagatum 

since  the  last  roolion  issutrd 

and  being  now  io  the  sheriff  *s  cus- 

brought  into  court  by  the  said  sheriff, 

return  of  a  tlal>eas  Corpus  directed 

r  that  purpose.     In  the  mean  titne, 

Dey-Cienerai  had  granted  his  fiat  for  a 

^S'or:  which  lie  did  immediatdy  upon 

in  assurance  that  Mr.  \Vilkei»  was  in 

itody   opoii   the  Capias  Ullagatum, 

11  to  the  Ffabeas  Corpus  beintf  read  in 

appeared  that  the    defendant  waa 

ith  two  oiitlan  ries  ;  \iz,  one  on  each 

for  the  respeclive  misdemeanors  be- 

ioned.    A  writ  of  error  in  each  cause 

ired  into  court. 

llawriea,  the  writi  of  error,  and  the 
of  errors,  were  exactly  alike  in 
m:  it  wilt  ihercfote  be  sufficient  to 
ty  one  of  each  sort, 
tcrial  part  of  the  outlawry,  on  which 
m  turned,  was  this.    The  sheriff  re- 
e  writ  of  Exigent  executed  and  in- 
fo) Jowa — *  By  virtue  of  this  writ  to 
Etcd,  at  my  county  court  held  at   the 
Bown  by  the  sign  of  the  Three  Tuns 
;-«tr«et  Dear  Holborn  in  the  county  of 
tX|  tbe  Iflthday  of  July  in  the  fourth 
ragn  of  our  present  snvereigu  lord 
third  now  king  of  Cfteat  Britain, 
within  named  Jolio  Wilkes  was  the 
le  exacted,  and  did  not  appear/     It 
10   the  same  manner,   till  the  quint o 
¥11,  •  at  my  couuty  court  held  at  the 
lc«  the  9ih  day  of  August  in  the  year 
' ,  the  said  John  Wilkea  was  a  second 
ted,  and  did  not  appear :'  and  so,  iu 
words,  only  changing  the  days,  to  the 
Thcrdbre  by  the  judgment  of 
ille,  esq,  and  Thomaa  Philips, 
y*s  coroners  of  the  county  of 
the  Buid  John  Wilkes,  according  to 
and  cuitoms  of  Ibis  reaJtUi  is  out- 


WrK  at 

Sn-or. 


The  writ  of  error  was  verbatim 
aa  foHows— Of  Easter  term  1768, 
8  G*  d«  Ouf  lord  the  king  bath 
sent  to  his  justices  appointed  to  hold  pTeai 
before  him  his  writ  closed  in  these  wordt 
(that  is  to  say)  George  the  third  by  the  graco 
of  God  of  Great  Britain,  Franc^^  and  Ireland 
king,  defender  of  the  faith,  &c.  To  our  jus- 
tices appointed  to  hold  pleas  before  us  greeting. 
Forasmuch  as  in  the  record  and  process,  af 
also  in  the  ptiblication  of  an  outlawry  agatnal 
John  Wilkes  late  of  Westminster,  in  the  county 
of  Middlesex,  esq.  on  a  certain  inforroatiun 
against  the  said  John  ^Vilkes,  for  printing  and 
|)ubli8hing  a  certain  libet  or  composition,  in* 
titled  An  E^say  on  Woman ;  whereof  the  said 
John  W'itkes  is  impeached,  and  thereupon  by  a 
jury  of  the  county  is  convicted,  as  it  is  Eiatd  ; 
manifest  error  hath  interrened,  to  the  great 
damage  of  the  said  John  Wilkes,  as  by  hit 
eomplaiot  we  are  informed :  we,  willing  thai 
the  said  error  (if  any  be)  be  duly  amended,  and 
full  and  speedy  justice  done  to  the  said  John 
Wilkes  in  this  behalf,  do  command  you,  that  if 
the  said  outlawry  be  returned  before  us  as  hath 
been  said  ;  then  inspecting  the  said  record  and 
process,  you  cause  further  to  be  done  therein 
for  annulling  the  said  outlawry  as  of  rii^ht,  and  , 
according  to  the  law  and  custom  of  England, 
shnll  be  meet  to  be  done.  Witness  ourself  at 
Weslrainster,  the  S7th  day  of  April,  iti  the 
eighth  year  of  oar  reign* 

And  hereupon  the  said  John 
Wilkes  comes  in  his  proper  person, 
and  says,  that  in  the  record  and 
process,  and  also  in  the  publication  of  the  afot«- 
said  outlawry,  there  U  manifest  error  in  Ibis, 
that  there  is  no  sufficient  iufbrmntioo  filed  or 
exhibited  against  the  said  John  Wilkes,  where- 
on to  ground  the  process  of  the  outlawry  afore- 
said :  by  reason  whereof,  the  said  outlawry  is 
void  and  of  no  affect  or  force  whatsoefer. 
There  is  a!so  error  in  this,  that  no  public  pro- 
clamation whatsoerer  is  mtniioned  to  havo 
been  made  at  any  open  county  court,  or  at  anjf 
general  quartcr-sesaiona  of  the  peace  whalso- 
eter,  or  at  the  door  of  any  parish  church  where 
the  Eaid  John  Wilkea  was  an  inhabitant,  ac- 
cording to  the  exigency  of  the  said  writ  of  • 
Capias  cum  proclamatione :  therefore  in  that, 
there  is  manifest  error.  Thvre  is  also  err^r  iii 
this,  that  it  is  not  shewn,  nor  does  it  appear  by 
the  return  of  the  sberiff  of  Middlesex,  tliat  the 
sheriff  of  I^liddlesex  did  cause  to  be  exacted 
the  said  John  Wilkes  in  the  said  county  of 
31idille6ex,  from  county  court  to  county  court, 
until  he  was  outlawed  according  to  the  law  and 
custom  of  England,  as  the  said  sheriff  by  the 
said  writ  of  Exigent  is  oommandcd ;  and  that  it' 
is  not  shewD  nor  does  it  appear  by  the  return  of ' 
the  sheriff  of  Middlesex,  that  the  said  John 
Wilkes  was  a  first,  second,  third,  fourth  aod 
fifth  time  exacted  at  the  couotv  court  of  the 
county  of  Middlesex,  as  by  the  law  of  the  land 
he  ought  to  ha?e  been  before  he  was  ootlawcd: 
therefore  in  that,  there  is  manifest  «srroi'« 
There  is  also  error  b  tbis^  Utai  isa  ^^^n^^ 


Of  error. 


1087] 


4—10  GEORGE  m. 


And  process  afuresaiJ,  and  in  the  publication  of 
the  outlawry  aforenaid,  it  is  do  where  ex- 
pressly she  WD  that  the  place  called  Brook- 
•treet  (if  any  such  there  be)  where  the  several 
countjf  courts  are  supposed  to  have  been  held, 
at  which  tlie  said  John  Wilkes  is  said  to  ha?e 
been  exacted,  is  in  the  couuty  of  Middlesex,  or 
in  auy  or  what  other  c«>unty.  Therefore  in 
that,  there  is  manifest  error.  There  is  also 
error  in  this,  that  it  does  not  appear  that  any 
judgment  of  outlawry  was  given  or  pronounced 
4H];ainst  the  said  John  Wilkes;  or,  if  any  such 
judgfmept  was  given  or  pronounced,  in  what 
form  the  same  was  so  given  or  pronounced ; 
as  it  ought  to  have  done,  in  order  that  the  le* 
gality  and  propriety  of  the  said  judgment 
might  have  been  seen  and  examined :  but  in 
the  record  and  process  aforesaid,  and  in  the 
publication  uf  the  outlawry  aforesaid,  reference 
and  relation  only  are  had  to  some  judgment 
not  shewn  or  expressed,  but  supposed  to  have 
been  before  given  against  the  said  John  Wilkes. 
Therefore  in  that,  there  is  manifest  error. 
IVherefore  the  said  John  Wilkes  prays  that  the 
outlawry  aforesaid,  for  the  errors  aforesaid, 
and  other  errors  appearing  in  the  record  and 
process  aforesaid,  may  be  reversed  and  held  for 
nothing ;  and  that  he  may  be  restored  to  the 
common  law,  and  to  all  which  be 
joioder  la  |,^||,  |^„|  |,y  occasion  of  the  out- 
lawry aforesaid,  &c. — And  William 
De  Grey,  esq.  now  attorney-general  of  our 
present  sovereign  lord  the  king,  present  here 
m  court  in  bis  proper  person,  having  beard 
the  matters  aforesaid  above  assigned  for  error, 
for  our  said  lord  the  king  saith,  that  neither  in 
the  record  and  process  aforesaid,  nor  in  the 
publication  of  the  aforesaid  outlawry  is  there 
any  error ;  and  he  pra  vs  that  the  Court  of  our 
said  lord  the  king  now  jiere  may  proceed  to  the 
examination  as  well  of  the  record  and  process 
aforesaid,  as  of  the  roatterH  aforesaid  above  as- 
sii^ned  for  error ;  and  that  the  outlawry  afore- 
said may  in  all  things  be  affirmed. 

Lord  Mansfield,  Ijei  the  writs  of  error  be 
allowed. 

His  lordship  then  asked  the  Attorney-Gene- 
ral, Mo  what  prison  he  prayed  that  the  de- 
'  fendant  might  be  committed.' 

Mr.  Attorney-General  answered — *  To  the 
Marshal.' 

Lord  Mansfield,  Let  him  be  committed  to 
the  Marshal. 

Mr.  Serjeant  Glifnn  moved,  that  he  might 
be  admitted  to  hail,  on  4  and  5  W.  and  M.  c. 
18,  (vide§  4,)  which,  he  said,  extended  to  cases 
of  misdemeanour.  He  was  Mupportcd  by  Mr. 
Recorder  of  London,  Mr.  Maubtield,  and  Mr. 
Davenport. 

They  urged  the  spirit,  scope  and  design  of 
this  statute,  as  well  as  the  words  of  it,  as  argu- 
ments to  prove  that  it  extended  to  misde- 
meanours; and  that  the  preamble  and  euact- 
ivg  part  of  it  do,  both  of  them,  apply  to  Mr. 


course^  nam 
a  defeniiflt 


Cau  Iff  John  Wilkes^  etj.  [10S8 

Wilkes's  case:  and  they  said,  that  even  if  the 
words  were  doubtful,  the  construction  of  tbca 
oui^ht  to  be  such  as  would  be  moat  favouiaUs 
to  liberty.  But  these  words  are  express ;  tbef 
include  all  causes,  except  treason  and  fek»y. 

*  For  the  more  easy  and  speetljr  reveraiogof  ool^ 
<  lawries  in  the  court  of  &iDg'*-hencn,  be  it 
'  enacted,  that  no  person  or  persons  whalso- 

*  ever,  who  are  or  snail  be  outlawed  io  thesiU 

*  court,  for  any  cause,  matter  or  thing  wkst- 

*  soever,  (treason  and  (eUmy  only  excepted)^ 
'  shall  be  compelled  to  come  in  peraoa  iiito,sr 

*  appear  in  person  in  the  said  court,  to  revciii 
'  such  outlawry ;  but  shall  or  may  appear  by 

*  attorney  and  reverse  the  same,  except  wbcrs 

*  special  bail  shall  be  ordered  by  tne  nid 
'  oouK.'  Cases  of  misdemeanor  are  widn 
the  sauie  mischief  as  civil  cases  :  and  it  ex- 
tends to  outlawries  aAer  conviction  of  miii^ 
meanours,  as  well  as  to  outlawries  upon  meas 
process.  If  the  question  should  taae  a  )mg 
time  in  discussingy  the  defendant  nay  In 
actually  punished  by  an  impriaonment  ufim 
the  outlawry,  though  it  should  be  at  last  re* 
versed ;  or  still  more  unjustly,  in  case  it  sbsiy 
afterwards  appear  that  no  pnnishnient  oo|bl 
to  be  inflicted  upon  the  convictiona  themselni. 
In  civil  cases,  a  pardon  is  of  course^ 
paying  the  debts  and  costs:  bat  a 
outlawed  upon  mesne  process  for 
meanour  has  no  such  opportunity  of  gcttisg 
rid  of  the  outlawry.  He  ought  to  bare  as 
opportunity  of  putting  bimselrin  a  conditiH 
of  beiuff  amenable  to  the  justice  of  his  ooobuj. 
Though  some  of  the  expresaiona  in  this  staliie 
may  seem  more  applicable  to  civil  casss,  j^ 
there  are  general  words  sufficient  to  take  ii 
criminal  misdemeanours.  They  mentioad  ar 
John  Read's  case,  and  that  of  Matthias  Ev- 
bury  in  1723. 

Mr.  Attorney- General  (Mr.  De  Grey),  ar 
Fletcher  Norton,  and  Mr.  Morton,  on  the  other 
side,  argued  that  this  statute  relates  oolja 
civil  cases;  and  not  to  criminal  misdenet* 
nours.  The  expressions  of  it  relate  to  ciffi 
property.  It  cau  relate  only  to  such  cm0 
where  a  defendant  can  appear  by  attoiier. 
The  preamble  (vide  §  8)  says,  *  Whereas difci< 
'  persons  are  prosecuted  in  the  said  coart  of 

*  King's* bench,  to  outlawries  for  debli,  tres> 

*  passes,  or  other  misdemeanours ;  and  iImic     ( 

*  IS  no  reversing  such  outlawries  but  by  ui 

*  personal  appearance  of  the  persons  outlawed: 

*  so  that  the  persons  arrested  upon  such  sat* 

*  lawries,  if  poor,  lie  in  prison  till  their  deslhi; 
'  but  if  able,  it  costs  them  very  dear,  to  refem 
'  the  sanne  outlawries.*  The  former  of  tbcff 
words  relate  to  property :  the  latter  to  adisai 
for  malicious  pniserutions  and  such  like.  Ths 
whole  relates  only  to  civil  suits.  And  ss  W 
Earbury's  case,  they  said  it  was  neither  a  dn 
rect  determination,  nor  any  authority  in  the 
present  case. 

Serjeant  Glynn  replied,  that  *  trcfpam^ 
include  all  other  actions  not  arising  ex  <«iH 
tractu :   and   *  misdemeanours'    mast  SH 


1089 j  OJiiwo  Informnitons/oT  Lihth 

MTtitieti*  '  AH  ciniiei,  matterAf  nml  tbin^/ 
l^serUiiily  Ivctaflt?  oriminal  oll'^ncesi  iind  mif^^e- 
ftfte«i^»uf«t  And  the  slahite  i»|>e]iks  oC  ouUbw- 
!*•  \\i  i^enci-aL     ft  K   \\n\  rra^nnad'e.  that  the 

pt  for  with  !  ,  Hhen  the 

i%«r|  viltdky  ot  Hmj  ouUuv^r^  rUtlt  is  in  que«- 
liMi*     A»d  Earhury*s  case^  Ib'tugh  it  was  not 
vtal4wry  ttfler  r  i    (uk   this  it),  yet 

ly  prt>ff»t  *  llii\i  loi^ti  tt;!^!^  Iw  fnia- 

uurs:'  for,  inc:  juu^ci  were  all  ofth^t 


A.  D.  1763—1770- 


[1090 


Lor4  MAnsJiM,     Gtkl  forbid  that  the  de- 
fiaoiJuol  ahoutd  not  be  allowed  the  LeneHt  of 
y  ndrantii^^p  he  is  iotlUpd  to  \»y  Uw  [ 

Jt  ia  (ohe  i:onaider«d,  hof%  be  ia  in  custody, 

Mi^  con  fiction,  W  be  had  been  preaeni  in 
•OUft,  h«  inijcht  have  been  cointDitted  i  if  not 
be  might  have  beL^n  tokea  by  a  Ca- 
^laa. 

It  Ss,  indeed,  in  the  discretion  of  the  Court,  to 
Ihtttl  a  person  ku  ei  reams  tan  cut  J. 

1^1  i  100,  u hen  ujiplked  to  a  court  of 

Itisit'  2iuuiid  di^icretioii  ^uidid  by  ltiw« 

Tt  inusi  lit  ^^ovefiied  by  rule,  not  by  hninonr: 
It  moat  nut  he  iirbitrary,  vague,  and  fanctin)  ; 
litll  legal  and  re^uhir. 

Tht»  deteii'lant  whii  not  present,  when  con- 
%tcteit«  He  iifterwarda  wiilidrew  fmm  justice, 
mud  wax  outlawed :  nnd  a  Capias  Utint^^uitim 
has  now  bsiif^tl ;  Dod  hf  is  in  custody  upon  it. 

It  a  person  cnnvicttd  Ur  taken  upon  u  Capias 
^r9  fitie,  be  %h  liHb!e  to  be  cnminilied.  unless 
f|i«  pniaeoiktar  consentu  to  bi»«  Wm^i  bailed. 
Ttii^  ui  the  coinmoo  courtie  of  pniceedtot^t 
Iboatfh  it  is  nsunl  to  admil  to  hail,  upon  the 
proviecutor's  ciHiHrnlinif  to  it.  In  the  ctie  of 
lie  i0yroeycnen  TaylarM,  and  again  in  that  of 
Hie  Weaferti,  the  defendanLs  were  by  consent 

*|ed,  and  by  consent  wrt*e  not  to  uppear  till 

Aed  tipon.  Hut  f  do  not  remeruber  any  case 
irbere  aifcli  a  permm  has  be^^ii  bulled  wilboui 
^ontiot.  When  a  person  ao  con^'ictpil  is  coni- 
lUtted,  auf*h  commitment  shall  he  tuken  intu 
yon  by  tbc  Court  when  they  come  to 
their  »enteuce  u|»oo  bJio,  tiid  «haU 

»«•  part  of  his  punnihineut. 

Hare,  the  defendant  U  in  cnstody  under  the 

miction;  fur,  he  is  in  cufitodv  upon  the 
llafiias  Uilagatum,  which  iMtued  upon  hiacon* 
iicliofi. 

Now,  whatefcr  doubtt  there  may  be  about 

bal  is  within  the  ant  of  pnrliaineiit  of  the  4 
|Oil  :f  W.  and  M.  c.  18,  it  is  most  certuin  that 

|>eriton  convicted  id'  a  inistleiiitfanour  is  out 

liliin  It ;  because  his  case  is  not  a  bailable 
?Motbin(f  thi'relbre  can  be  clearer,  than 

t  KUch  a  person  U  nnt  within  an  net  of  ptr- 
nt  that    retaies  only   ti»   h»ilahlb  cases. 

hti  act  relates  to  cases  where  no  aipecinl  hail 

rr<atjlrrdy  Sdd   to  cAses   where  Bjiecial  bail 

d:  (vide  (  $)  and  the  aherilf  is  dt- 

t  iQ  do  III  either  case.     VVhcra  the 

U%  the  defendant  is  to   be   dis^ 

r-  ibe  smMirit^'-bond,     But  even  in 

1  »uiuu«,  ha  ooiUd  uot  be  bat  led,  where  be 

VOL.  XIX. 


was  oot  bailuhle .'  he  ii»  only  lo  be  put  into  the 
same  comiition  a)«  it  he  ha<i  txil  been  outlawed 
at  all.  If  the  outlawry  was  alter  Judgment  in 
debt,  or  any  other  civil  action,  and  the  defend* 
ant  was  not  bailable  before  the  ottllawry,  the 
act  did  not  make  such  detendant  bailable,  who 
was  not  so  before  the  outlawry.  1  am  clears 
that  this  case  is  not  withiti  the  act. 

Mr.  Justice  Yattt  was  also  clear  in  the  «inM 
opinion.  It  i^said,  ^  that  tt>i«^temefinours  of  all 
kimls  are  within  the  words  of  this  act,  as  welt 
as  within  the  scope  nnd  mennini^  of  it,'  Bnl 
misdemeanours  arc  here  (vide  |  $,) 
witii  di' tits  and  trespasses  *|  which  are  t 
lions  of  civil  actions :  and  so  may  the  word 
*  mitideuieanour*  be*  This  act  itnVlilt  iu  the 
general  word f^  of  the  preamble,  Haveatiew  to 
actions  of  conspiracy,  decieit^  or  popular  actiona 
ufion  penal  statutes  ;  (on  which  an  outlawry 
was  «iven  by  21  Ja.  1,  c.  4.)  And  taking  the 
whole  of  the  a<*t  together,  there  caD  be  ne 
daubt  about  it :  for,  it  must  be  conitrued  of 
those  cases  where  tlie  clauses  of  the  act  are 
pnkcticable;  which,  iti  the  present  case,  thej 
arenot^  A  con^icliou  in  a  criminal  ca^e  oan^ 
not  be  within  this  act.  The  sherirt'  is  directed 
by  il»  *  to  take  secnrity  of  the  person  ouilawed, 
in  the  penalty  of  dnuhle  the  sum  for  which 
special  hall  is  required.*  But  liie  shenfT  can- 
not  take  bail  of  a  peison  after  his  bc»n£j  con- 
victed of  a  crime.  The  sheriff  <  annot  funn  hta 
own  idea  of  the  offence,  ov  scllle  n  sum  whereia 
he  sttonld  take  the  hail  of  such  ii  opi^mi  :  nor 
run  he  i^uire  bail  in  double  the  flue,  or  ony 
ihin^  more  than  what  the  fine  shall  he  fixed  at ; 
ttliieh  is  uncertain  and  fulnre.  The  ronclud- 
ini;  words  of  the  security* bond,  •  and  to  do 
and  perform  such  things  as  shall  be  required 
by  the  said  court,*  mean  putting  in  bail  to  a 
new  action,  pfeadlnK-  within  a  limited  linj^, 
putting  the  pbiniiff  In  the  same  condition,  and 
sudi  like  fustttTS*  And  it  sliould  be  coo- 
si  dered,  how  the  law  stood  in  civil  cases,  before 
this  act  of  parliament  ;  nnd  that  no  bait  cnuld 
then  be  taken  on  a  Capias  Ullagutuiti.  Vide 
IJCar.  9,  sUl.  y,c.  12, 1  4. 

What  1  have  Iteen  saying,  may  throw  same 
light  upon  ibis  act  of  pnrliainent.  But  I  con- 
fine my  opinion  to  its  lieinjf  an  outlawry  afYar 
coiivictioti  in  a  criminal  ca^^e  :  which  cannot 
be  a  case  tiithin  lliis  act  of  parliament. 

If  adefViidautistakenupon  a  Capias profioe 
(or  sro  redemptwfu^)  it  is  an  execution ;  and 
no  sheriff  can  tnke  bad  of  him :  it  la  a  favour,  if 
the  Court  does  it.  fly  5  £.  3,  c.  It,  no  purdoo 
for  an  outlawry  bhull  be  granted,  till  the  chan- 
cellor is  cerlifietl  that  the  plaititill  ia  sati^fitd  of 
his  damages.  In  a  criminal  ca&e,  if  the  party 
be  convicted,  and  a  Capias  ad  satialacienduoi 
ittsues,  and  he  is  taken  upon  it,  he  \s  in  rxei-u- 
lion,  to  make  saltHfaeMon  ;  nnd  the  sht^ntrrMn 
never  foretel,  before  the  Court  hate  given  the 
final  judgment,  what  tli  at  aati»  fact  ion  is  to  be, 
OLi  whicli  he  should  adtnit  the  defendant  to 
bail,  on  the  Caidss  UtJaKatum  :  be  hat  iiolhing 
to  direct  hiiutclf  by.    ^ o  dause  ol  vVki*^  %ftX  ^o^b 

4A 


1091] 


4>-10  GEORGE  IH. 


date  of  John  Wilket,  etq. 


\ym 


be  put  in  executioD,  on  an  outlawry  upon  t  con- 
Tiction  in  a  criminal  case.  Therefore  I  am  of 
opinion,  tbat  the  present  case  is  not  within  it. 

Mr.  Justice  Aston,  1  am  of  the  same  opi- 
nion. I  think  this  act  of  parliament  relates 
only  to  civil  actions :  this  is  evidently  the  true 
spirit  of  it.  It  cannot  be  imagined,  that  the  act 
can  mean  to  allow  of  a  defendant's  appearing 
by  attorney,  in  cases  where  the  defendant  is 
obliged  to  appear  personally,  and  cannot  ap- 
pear by  attorney  at  all :  neither  can  it  extend 
to  taking  bail  in  cases  not  bailable.  But  surely 
it  cannot  extend  to  cases  of  criminal  misde- 
meanours, afler  conviction ;  because  in  such 
cases,  a  defendant  is  not  entitled  to  be  bailed 
at  all.  Outlawries  after  conviction  are  very 
different  from  the  case  of  outlawries  for  non- 
appearance upon  mesne  process.  After  con- 
viction, there  is  no  case  where  it  has  been 
bolden  that  the  defendant  has  a  right  to  be  ad- 
mitted to  bail.  In  an  outlawry  after  convic- 
tion for  misdemeanour,  no  sheriff  could  take 
ImiI  :  and  consequently  this  act  could  not  have 
any  such  case  in  view,  or  be  meant  to  extend 
loit 

Mr.  Justice  WilUt.  It  is  clear  that  the  de- 
fendant has  no  right  to  demand  being  admitted 
to  ^il.  This  is  an  outlawry  after  conviction. 
If  it  should  be  granted  tbat  be  is  intitled  to  be 
bailed  upn  the  outlawry,  yet  as  he  stands 
convicted  of  the  crime,  he  must  be  committed 
upon  the  conviction.  This  statute  is  indeed  as 
obscure  a  one  as  any  in  the  statute-book:  it  is 
difficult  to  ascertain  its  true  meaning.  There- 
fore I  do  not  chuse  to  give  any  direct  opinion 
about  its  extent ;  unless  it  should  become  ab- 
solutely necessary  for  me  to  do  so.  As  the 
present  case  arises  upon  an  outlawry  aAer  con- 
Tiction,  it  is  clearly  not  a  case  within  this  act 
of  parliament.  In  treason  and  felony,  out- 
lawries were  convictions  of  the  fact :  and  there- 
fore they  are  particularly  excepted  out  of  this 
act  But  outlawries  in  cases  of  misdemeanour 
are  not  convictions  of  the  fact:  yet  after  actual 
conviction  of  a  misdemeanour,  the  defendant 
is  not  entitled  to  bail ;  whether  he  be  or  be  not 
outlawed.  Even  in  a  civil  action,  a  person 
outlawed  after  judgment  could  not  have  a 
pardon,  till  payment  of  the  debt.  In  the  pre- 
sent case,  it  would  be  merely  nugatory,  to  dis- 
cbarge the  defendant  upon  giving  bail  to  pro- 
secute his  writ  of  error  upon  the  outlawry, 
when  we  must  immediately  commit  him  upon 
the  conviction.  How  can  the  sheriff  know,  at 
the  time  of  the  defendant's  being  taken  upon 
the  Capias  Utlagatum,  whether  the  Court  will 
at  all  admit  of  sfiecial  bail,  or  not?  Or  if  they 
should,  bow  shall  the  sheriff  know  in  what  sum 
it  shall  be?  Or,  if  he  should  be  fined,  what 
will  be  the  amount  of  his  fine?  Clearly,  an 
outlawry  after  conviction  of  a  misdemeanour  is 
not  within  this  act;  whatever  else  may  be 
within  it. 

The  Court  havinjEi^  thus  declared  their  unani- 
Mout  opinion,  <^that  Mr.  Wilkes,  under  his 


present  curcumstances  of  standing  eooTided  sf 
a  criminal  misdemeanour,  bad  no  right  to  da> 
mand  being  admitted  to  bail/ under  Uiia  aet  tf 
parliament ;' 

His  counsel  moved  that  be  might  be  bailedi 
upon  the  foot  of  the  general  discretion  whidi 
the  Court  would  exercise,  of  bailing  or  cooh 
mitting  a  person  convicted  of  a  miademcanowy 
according  to  the  particular  drcanMtaneea  of 
his  case :  which  they  dledged  to  be  suffida^ 
in  this  gentleman's  case,  to  induce  the  Court  ti 
permit liim  to  remain  at  large,  under  prapur 
bail.  Public  justice  was  not  intended,  tney 
said,  nor  at  all  likely  to  be  evaded.  He  M 
always  been  amenable  to  justice :  he  now  wm^ 
rendered  voluntarily.  Indeed,  little  care  Iwi 
ever  been  taken  to  apprehend  him.  He  al> 
ways  appeared  pnbliciv  nnon  the  huatin|i^ 
both  in  liondon  and  Middieaez ;  and  be  ii 
member  of  parliament  for  the  latter  county. 


Lord  Mantjield.^\  have  said,  « tbat  1 1 
no  case  where  a  person  convicted  of  a  i 
meanour  has  been  admitted  to  bail  without  ooa- 
sent  of  the  prosecutor.'  If  anv  gentlcasi 
knows  any  such  case,  I  should  bej[iad  It  k 


informed  of  it :  I  know  of  none.  We  cs 
therefore  do  it,  if  the  attomey-f^eral  docs  Ml 
consent.  For,  we  must  act  ahke  in  aJI  cssn 
of  like  nature :  and  what  we  do  now,  ought  li 
be  agreeable  to  former  precedents,  and  wSl  le> 
come  a  precedent  in  future  casea  of  a  liki 
kind. 

The  Court  declining  to  bail  him  without  thi 
consent  of  the  Attorney  General  as  proeeuitiBg 
for  the  crown,  he  was  committed  to  the  lia^ 
shal. 

Hw  counsel  then  moved  for  a  rule  to  brisi 
him  up  to-morrow,  to  assign  errors.  Whick 
was  granted. 

There  were  two  rules.  The  former  wti 
this.  *<  The  defendant  being  brought  ben 
into  court,  in  custody  of  the  sheriff  of  dit 
county  of  Middlesex,  by  virtue  of  a  writ  of 
Capias  Utlagatum  ;  it  is  ordered,  upon  the  sn* 
tion  of  Mr.  Attorney  General,  that  the  said  de 
fondant  be  now  committed  to  the  custody  tf 
the  Bf arshal  of  the  Marslialfsea  of  this  oosrt, 
to  be  by  him  kept  in  safe  custody  until  he  fbiH 
be  from  thence  discharged  by  due  course  of 
law.  And  the  said  defendant  now  here  ii 
court  producing  a  Writ  of  Error,  and  prajisf 
oyer  of  the  Record,  it  is  ordered  by  this  Cosrt, 
that  the  said  Writ  of  Error  be  allowed.  Ob 
the  motion  of  Mr.  Attorney-General." 

The  other  rule,  "  that  the  Marslial  or  kil 
deputy  bring  the  defendant  up  to-morroir,li 
assign  errors,'*  was  a  distinct  rule ;  and  wii 
taken  up  on  the  motion  of  one  of  the  defeoi* 
ant's  sounsel. 

On  Wednesilay  the  4th  of  May.  1768,  (i 
week  after  the  last  mentioned  rule),  *th«»  defvsd» 
ant  having  assigned  errors  upon  the  recoid  if 
the  outlawry,  and  the  crown  having  joined  ki 
;    (all  which  was,  by  oormbI  en  M 


1093] 


on  hoo  Infonnaiiomjor  Libels, 


A.  D.  1763^1770. 


[1091 


,  privatpfy  Ininsacted  between  llie  ngcnUf 
witlio«it  moiaalty  briuging  Mr.  Wilkes  loto 
cirort;) 

Mr.  Oavttiport  mored  to  make  the  joinder 
to  •rror  t  Concifium  :  and  Saturday  next  was 
Agreed  upon  as  tbe  day  on  it  hich  it  was  to  be 
ar^oed. 

Accordingly,  on  Saturday  the  7th  of  Mayi 
1168,  it  WHS  argued  by  Serjeant  Glynn  on  the 
part  i)f  tbe  deleodantf  and  fVlr.  Thurlow  on 
the  part  of  the  crown.  It  was  very  well 
ttr^cd  on  both  siiles:  but  it  would  draw  tbis 
report  nut  into  an  insufreral>le  leiig^tli,  if  tbe 
particulars  of  tt  should  be  here  insei  ted. 

Tbe  ereal  and  capital  error  tbat  tbe  Herjeaot 
anaittted  upoUf  was  the  insufficiency  of  tbe  re- 
turn in  not  shewing'  that  the  defendant  bad 
been  fire  tinies  exacted  froin  county-court  to 
county-court y  till  he  was  outlawed,  as  ibe 
law  mrrcts,  and  I  lie  writ  requires.  He  ar- 
gaed  that  this  oujcrht  to  appear  certainly 
&Dd  precisely  upon  tbe  sberiff^s  return ;  that 
outlawries  «ire  odious  ;  and  that  tbe  Court  will 
iDteiid  nothing  in  support  of  so  cruet  a  pro- 
cerdinfiff  but,  on  the  contrary,  listeu  to  the  lea^t 
objection  of  error  in  it.  Ami  here  tbe  fijHt  ex- 
action dors  not  appear  to  have  been  made  in  tbe 
county  of  IVIiddleiiex  ;  nor  any  of  the  sub- 
9ei|uent  ones,  which  are  said  to  h»Te  been  at 
tbe  same  place  xvith  tbe  fir^it.  Tbe  words, 
*  uetr  Uolburn,  in  tbe  county  of  Middlesex;' 
do  not  tiDportits  beiui^  in  the  county.  Besides, 
the  lini<*  Ofnt  plitce  of  the  second,  third,  fourth 
and  Bii'  ns  ought  to  have  been   parti* 

cularly  -  uid  described  ;  and  not  by  re- 

ference only  to  the  tirst.  Moreover,  the  she- 
riff MU|;h<  lo  b»f  e  stated  tbe  proclamations  ex- 
plicitly and  pariiculiirly,  and  tbe  particular 
manner  and  circtuikiirunces  of  them.  Ue  al»o 
made  :i  '      .  *  Wbethcr  an  outlawry  lies 

OpOQ  »'i  ion?'    And  lie  concturjed  witb 

an  ob|*  i  HUH  Mi  lilt:  informatiotif  aa  not  beintc 
proi»erly  exbibi>ed  j  beiii^r  exhibited  by  bis 
niajealy'ft  koIIcU'H  -|reneral,  without  taking  any 
noilfia  of  the  vucjncy  ol  the  olhce  id  uttorney- 
Mnaral  T  wbereus  the  fiH^mrv  i^'f^nerul  is  tiie 
Known  and  pt-k>pif  trtii  rtMwn  for  this 

pur^KijM; ;  and  ibe  suIh  u  ^  ^i  has  no  such 
rig^bt. 

Hedieil  a  great  number  of  caaeaatid  pre- 
4sniBt  iti  tup  port  of  his  objections, 

Mr.  Thuthw  defended  tbe  re-jjularliy  of  the 
whole  proceeding,  by  reason,  arj^ument^  and 
praclice;  and  he  als't  cited  a  threat  number  ot 
€««etatid  preitt'dentH,  to  tiuppurt  bis  arguments 
•od  allegations. 

_To  which  Mn  Serjeant  Gtynn  having  re- 
~  Hi ;    and  the  counsel  fnr  the  defendant  hav- 
^  declared,  *  that  they  did  not  desire  a  second 
itcneot  ',* 

The  CVmrt  B.iiJ,  tlmt  the  very  great  number 
ftoJ  VM1  (les  and  prcceilents  thar 

liAil  W»  <    ,  I  very  ably  urjjed  mi  Initb 

,  dcattrv^  and  would  require  their  mature 


consideration ;  and  directed  copies  of  ibt;  re- 
curds  cited  on  l>otb  siiles  to  be  hid  bclui  t  tli^m| 
or  at  least  one  copy  of  each  n^cord,  which  tlie| 
woubl  deliver  o?er  trntn  one  to  another. 

On  8alunlay  the   l4th  of  Mny,  1768,  (4, 
week   ai^er   the  before  mentioned  arifumentj)  • 
afW  lorvt  Mansticld  and  Mr.  Justice  Yates  were 
gone, 

Mr.  Davenport  moved  for  a  rule  tn  hrin^  the 
defendant  up  on  Monday,  in  order  to  be  bail- 
ed :  hut  be  had  om  atlidavit  of  any  particular 
ciri:umstaoce2i  to  induce  the  Court  to  grunt  ^uch 
a  rule. 

Mr.  .Justice  Aston  ilid  not  aee,  he  saiil,  hoif^ 
the  Court  could  bnil  him,  wiibout  any  partica 
lar  circumstances  beinjj  laid  before  them,  whe 
they  had  already  and  %o  lately   determined^ 
after  a  full  hearing  of  counsel  on  bt»ih  sidef;  ' 
*  tbat  be  was  in  execDiion   upon  the  outlawry 
nfler  conviction  oK  [oisilerneanorii,  and  was  not 
admissable  to  bail/      He  would  not  thereCore^ 
after  two  of  tbe  four  judges  were  gone  awaJ^^ . 
make  such  a  rule  as  was  prayerl :    but  M£| 
Davenport  mii^ht  move  it  again,  if  he  pleaseJiJl 
on  Monday  moriiinit^  at  tbe  sitting  of  the  Court  ; 
and  tbat  would  a  How  time  enouq:h  for  the  de* 
fendani's  being  bruujfht  up  the  same  day,  to  be 
baited,  if  the  Court  should  tbiuk  it  a  reason* 
able  motion* 

Mr.  Justice  n7//fi  was  of  the  same  senti^ 
ments  witli  Mr.  Justice  Aston  i  and  agreed  to 
Mr,  Davenport's  having  leave  to  move  it  at 
tbe  Kilttng*  of  the  Court  on  Monday. 

Upon  I^Ionday  the  ICtb  of  May  1768,  Uie 
Court  being  then  full, 

Mr,  Davenport  accordingly  renewed  hif 
motion,  lie  couM  only  urge,'tlHU  ther«>  were 
but  two  (grounds  of  imprisonment:  one,  for  se- 
curity ;  ihe  other,  for  puoishment.  The 
former  failed  in  (lie  present  case  ;  hec;iu<ie  Mrv 
Wilkes  hud  alwa^'s  [t]ii.  nireiidy]  volttniaritjf 
surrendered  :  the  latier  taded,  becau^  ii  wat 
premature  ;  for,  tbe  case  wi\%  not  Vf  t  ripe  for 
jndgmeot  upon  th^'  conviction  ;  and  the  v alidily 
af  tbe  oiilluwry  was  al  pre-senl  doiilMful. 

Mr,  Davenport,  upitti  bring  MHked  by  lord 
Man^6eld,  *  WlaHlier  be  h>Ml  given  nouci?  to 
the  Attornev  tieneral  of  thtJ  ntoliuu,'  owned 
that  he  had  not. 

Lord  AfttHitfield.  However,  it  cannot  prevail ; 
liecausB  the  Jerendant  is  in  custody  after  con- 
viction: which  is  a  custody  in  execution.  It 
is  not  a  custody  for  aecnrity  only  ;  hut  goes  in 
purt  of  the  punit>htiiiut.  aud  will  lie  taken  into 
consideration,  upon  thefuiiit  juilgmeui :  and  so 
we  told  you  Lclorr.  It  was  so  in  LfM>knp'« 
case,  ana  in  the  case  of  a  Welch  clergyman, 

A  itettfiidant  in  execution  u|uin  nii  ouilnwry 
iifter  conviction  of  a  mmclemcanor,  in  cro\%ii 
protteciuions,  cannot  be  admittrd  to  bail  with* 
out  lUe  conneot  of  the  attomvy  ^^cneral. 

If  the  Cuurt  bad  been  of  opinion,  U|K»n  the 
last  argumcuty  lo  rev«r»e  the  ottVU?^T>i  ^>i<\>^^ 


± 


1095]         4—10  GEORGE  HI. 

defendant  must  ba?eeoDUniied  in  cnrtody  apoB 
the  conviction. 

Errora  upon  outlawries  have  seldom  been 
soleniDly  argued.  Thi^  writ  of  error  has  been 
pol^mnly  and  exceedingly  well  argued :  and 
the  matter  deserves  to  be  seriously  considered. 
tVhat  is  determined  upon  solemn  argument 
establishes  the  law,  and  mnkes  a  precedent  for 
future  cases :  which  is  not  the  case  of  (questions 
■creed  bv  consent  of  parties,  or  ne?er  litigated. 
This  will  be  a  precedent. 

The  Court,  in  all  cases  (without  regarding 
who  is  the  particular  defendant),  leans  to  the 
reversal  of  outlawries ;  becaiwe  the  punish  - 
ment  of  the  outlawry  is  often  greater  than  the 
punishment  of  the  offence  itself.  Here,  the 
defendant  had  tlie  merit  of  coming  in  volun- 
tarily ;  not  being  brought  in  by  process  and  in 
in  custody.  But  the  Court  cannot  make  er- 
rors ;  nor  reverse  for  errors  which  do  not  exist, 
or  which  they  cannot  see :  they  must  be  satia* 
Bed,  that  there  are  errors.  If  the  Court  had 
been  satisfied  ou  any  one  error  asstgnetl,  they 
vould  have  reversed  the  outlawry  for  that  error. 
'Vfe  did,  several  of  us,  when  we  came  into 
jBoort,  seem  to  think  that  the  want  of  procla- 
inations  was  a  flaw :  but  my  brother  Yates 
doubted  <  Whether  piticlamations  were  at  aU 

*  necessary  in  such  a  proceeding  as  this.'  I 
wish  that  the  precedents  and  acts  of  parliament 
nay  be  lookeif  into,  to  see  *  whether  process  of 

*  outlawry  will  lie  upon  informations  for  mis- 
<  demeanors ;'  as  weU  as  to  see,  *  Whetiier  pro- 

*  clamatioos  are  necessary  or  not,  upoD  pro- 

*  cess  of  outlawry  alter  convictions  for  misde- 

*  meanors.'  I  desire  that  the  counsel  will  ap- 
ply themselves  to  search  into  this  point,  *  Whe- 
'  toer  process  of  outlawry  will  at  all  lie  upon 

*  informations  for  misdemeanors.'  And,  as 
many  precedents  have  been  already  cited  and 
produceil,  I  desire  also  that  the  precedents 
may  be  left  with  us,  for  our  perusal  and  consi- 
deration. 

Mr.  Just.  Yatet.  I  should  have  thought 
that  what  was  said  by  the  Court  upon  the  former 
argument,  would  have  been  sufficient  to  have 
spared  the  present  motion.  The  matter  was 
then  largely  and  very  well  argued ;  and  the 
Court  explaiued  their  hentimeiits  very  fully  at 
that  time:  their  opinion  was,  '  that  the  defen- 

*  daut  lieing  in  vxecuiion,  he  could  not  be  bail- 

*  ed,  without  consent  of  the  Attorney-General 
'*  on  the  part  of  the  crown.'  To  bail  him  upon 
the  mere  assignment  of  errors,  would  be  pre- 
judging upon  the  errors:  it  would  pre-sup- 
pose  *  that  they  were  fatal.'  He  is  at  pre- 
sent in  execution ;  and  cannot  be  taken  out  of 
execution,  without  consent  of  the  Attorney- 
General  on  behalf  of  the  crown. 

But  since  this  matter  is  again  brought  upon 
the  tapis,  it  gives  me  an  opportunity  of  sug- 
gesting uiy  own  doubts.  It  proclamations  are 
necehsary,  I  should  think  this  return  to  be 
clearly  bad :  hut  if  proclamations  are  not  ne<^ 
ccisary,  it  is  then  immaterial  when,  or  where, 
or  how  they  were  made.    As  to  what  baa  beoi 


Case  tfJohm  Wilbi,  m[» 


noB6 


•aid  about  tba  exprsMiOM,  *  9X  mj 
« oeupt,'  not  being  dctevnin^la, 
might  be  sheriff  of  two  conntics— there  nratwa 
authorities  which  either  were  not  manlioiNd  at 
the  bar,  or  at  least  were  not  fully  statad.  Oaa 
of  them  is  1  Teotris,  108,  where  aD  oulhwij 
was  reversed,  lor  that  the  procYamatiooa  wert 
returned  to  be  <  ad  cnmitatnm  meum  teot  apad* 
aooh  a  place  « in  eomp.  prediet.  i'  aod  not 
•aid,  *  pro  comitata  :*  for,  aacicHtly  one  siNrif 
had  twa  or  three  cauntiea,  aad  vh^  hoM  iht 
eonrt  in  one  county  for  aaothor.  The  oibcr  if 
these  oaoea  is  in  S  Roll's  iloporta,  59. 
AMer's  ease ;  who  waa  outlaiW«4  foo 
and  it  waa  moved  for  error,  that  t 
turned,  •  ad  oowitatom  wiosian  loptaaB  apud  P. 
'  in  le  oouoty  do  Northomberiaad  ;*  aad  #i 
not  say,  «  Comitat.  neon  NofthuMbfvB  IM- 

•  tnm,  &».'  Aud  this  was  haMon  to  bo  oiNl^ 
by  the  Coaii ;  aecordtng  to  the  oaao  ia  •  H.  1^ 
where  it  is  returaed,  *  ad  com.  mouaa  8uuuM> 
<  teotum.'  And  therefore  it  waa  holden  cn» 
neouB :  for,  one  may  be  sheriflT  of  Sorroy  sal 
Sussex,  and  also  of  Httntiagdonshire  and  On* 
bridgeshire.  But  this  is  not  poasihia  ia  lbs 
ease  of  the  sheriff  of  Middleses.  The  i 
o\'  London  have  been  immemoriaQy  tho  i 
of  Middlesex :  therefore  he  could  not  hafoloe 
counties.  But  I  should  always  inclioe  la  fi* 
vuur  errors  assigned  in  outiawnr ;  beaawt  k 
is  more  just  and  right,  that  jiiJgfiiioat  i 
be  given  upon  the  oonvictton  for  tho 
llierefore,  my  doubt  being  against  the  i 
assigned,  I  shooid  be  miwilmig  that  BMve  i^ 
gard  shouki  be  paid  to  it,  tbtti  it  ahallappsv 
strioHy  to  deserve :  and  I  wovM  not  hove  pM* 
posed  it,  if  1  had  not  thought  it  iacoasheatoMB 
Boe  to  eommunicate  it,  since  it  haa  ooounelti 
me,  and  seems  to  me  lo  have  more  weight  Ikii 
|>erhaps  it  might  appear  to  others  to  liavo. 

But  my  h>rd's  doobt  is  a  very  material  sae- 

*  Wliether  the  offence  chai^jred  in  tho  iofonsi- 

*  mation  is  such  a  crime  as  will  warrant  an  oi^ 

•  lawry.** 

The  18  Ed.  3,  stat.  1,  c.  1,    has 


•  "  Whetlier  the  common  law  gives  i 
of  outlawry  against  crimes,  being  merel^  eso- 
structive  breaches  of  the  peace,  was  (piestiooii 
in  a  late  case  before  the  RingVbench  en  a  NM. 
But  the  Chief  Justice,  in  deliveriug  theCoart'i 
judgment,  spoke  at  large  to  prove,  that  nek 
process  lies  against  cniues  universally.  Mr. 
Wilkes's  case,  4  Burrow,  page  95S7.  How- 
ever, the  reasoning,  on  which  tliis  opinkw  ii 
grounded,  stunds  opposed  by  a  former  jod|^ 
ment  of  the  Common  Pleas  on  a  prior  case  r^ 
lative  to  the  same  gentleman.  2  WihL  19L 
But  it  was  adopted  by  both  Housea^  of  Psriia- 
ment,  when,  in  his  rase,  they  resolved,  dMt 
privilege  of  parliament  doth  not  extend  to  libcb. 
See  Annual  Reg.  for  1764.  Tho  argunoii 
for  the  contrary  opinion  are  ffircibly  exprcMii 
in  a  protest  by  some  of  tho  l>ords,  who  waif 
against  making  such  a  resolution.  Joora.  Ditf* 
Proc.  39th  Nov.  ira9."  Hoff .  Oo.|iilitA 
b.  Nolo  (1). 


miiuio  InffmnaiumnftfT  Libels* 


tb»  pffiiii#(i  frditioo  ii|  tli«  Hta- 
it  i«  unil  oal  i»  tie  io  m  tliv  Pir- 
(ViiK    atso  Btal.  «»  o.  5.)     At 
,  tiyiliwr^r  Ut>%  nnU  ibr   irenioo 
ofl   1    Afurehend.     'riicrrfure  tbe 
Kii  be  lekil  of  heftrio^  the  iir|fum(itiktt 
kr,  l»  iisvLit  their  ioqmr)^  in  Ikiin  doubt. 

list.  Axton.  The  opmion  nf  the  world 
H  lo  ^reiirH  At  kU  wtih  the  Court  id 
>4b#iPC»picNon  U[>oo  liie  Talktity  of  the 
liiiriiefll  «ipwii  Uiii  nutUwry.  1 1  oo«  flat 
>  ebjtCliiiB  ImuI  cWtrly  »pti*'ar^l,  thi! 
imiBMlittlely  giv^o  their  opi- 
the  Srst  Bi^tiinetit.  1  was  not  a»- 
iy»elf,  ihfti  the  minor  otijrctioon  bad 
ilbroeiji  th«ui ;  and  a«  to  the  greater 
•  MmMfilfor  the  defendant  «e«ci>ed  to 
li»o  MMgiiiDe  and  Ln^  much  attached 
ffOwtt  opitiiooBf  wheD  they  declined  the 
»£  «  further  argument,  wften  the  Court 
"  be  further  infornieil  hy  hearing  il 
But  thii  doubt  which  my  hird 
,  *  Wh4Hhe(  proecat  of  oiUlaviry 
criin«>N  charged  in  theae  iufor- 
a  very  material  <]ne,  and  ought  to 
iiidcrvd.  It  may  be  necessary  Co 
aud  other  booki ;  aod' the 
U.  d,  St.  1,  c.  1,  and  »%  2,  c.  B, 
e.  120,  and  a  case  in  the  Year-  bt)ok 
,  f*  C),  pi,  9,  *  that  pn»cess  of  out- 
nut  lie;  bec;iUfie  the  action  w^h  not 
rt  Bu|*poa»ed  to  be  done  r*  ^rt  artnUJ* 
a  d«mbi,  ♦  W  hether  prooeiJi  of  out- 
^  tie*  on  inlbrtuationR  of  thi«  haad,  Ibr 
iMa  which  though  expresBed  to  be  dotie 
IIpmm,  are  nut  realty  dune  with  actual 
■  Tlie  18  Ed,  S,  filit.  3,  c.  5,  aays, 
Wk  exigent  ihall  g«^  where  a  mau  is  io- 
|^i>f  ifMpa^a,  if  it  be  not  a^in<ftt  the 
«,c^  of  things  con tainad  in  ISE.  3,  at.  1/ 
bough  tUe  wiMTda,  ■  nemy  d«ii  anrren/  are 
Ibiind  in  the  Parliarnent-Roll,  yet  they 
eral  nianuscrijjt  copies.  These  things 
ttMturely  considered. 
iUu  to  inquire  into  the  practioe 
aud  to  see  whether  th«y  have 
nn  and  roncomitatit*  Tre«paiaea  in 
ly  be  elFeclually  doue,  without  actual 

Four!  will  not  keep  back  their  opinkin, 

^baring  anfficieiit  ground  far  doubting^ 

(tty  of  taking  time  to  aatiafy  ih«'jr 

•n  fhe  other  {\\ku*\^  lliey  will  not  give 

over-hHRtily  and  preiuHturi4yt 

uf^  the  hmnoura  or  paitioua  of 


\  WUk$  coftcurrati  tliat  ttia  cl«feo- 


A.  D*  1765*-n7a.  [1096 

thetn,  which  fotnetimea  exceeded  what  wouh 
be  the  puuisfimenl  upon  tha  convietiija  itMlf. 

V*\r  the   reaiotiH  above  particularised ,  Mr#] 
Dufeiipnrt  tooknothiog  by  tbic  motion. 

On  Wedneftdav  the  8ih  of  June  \1Q%  (beio| 
the  aixth  Hay  of  Trinity  term,  8  G.  3.J 
Attorripy-f  jeoeral   and  other   coiiiifsel  tor  Ihi 
crown  w*?re  further  hejird.     Xiui  the  couun 
for  the  deft^ndaut  reeled  their  cu^e  upon  ii\%\ 
former  argument. 

LortI  Muns^eid  expresstd  hims«lf  to  ib«  i 
lowing  etfecl : 

Great  pains  have  been  taken,  and 
aearches  hare  been  iniuie»  ^luce  ihii  lant  argu^  1 
nient ;  not  only  (ait  I  «ee  now)  by  .>1r.  Aitomey^J 
General  and  tho^  he  has  employtd,  Init  bji j 
Bome  of  UB  I  I  say,  *  »nme  of  ua  \*  bccatMeTl 
cannot,  with  truth,  assume  the  merit  to  mfmi 
self:  the  toail  of  other  busincsa  which  lay  upott] 
im,  made  it  ittipo«sible.  But  from  tl»e  ablaj 
atfialanc'e  of  those  who  have  takeu  the  troubie] 
to  make  searches  and  tu  collect  ukBterialt,  |  [ 
thihk  I  am  now  thoroughly  tna.ncr  of  a  sutyeotl 
whicli  I  am  not  at  all  a^hanied  to  ^ay  1  knefff 
very  liiile  of  lie  fore  :  and  1  never  give  a  juduj 
cial  Oijinton  upon  any  point,  until  I  think  1  aai| 
tn:iiiler  of  every  material  argument  and  aiit  I 
thority  relative  lo  it.  h  is  not  only  a  juilio|] 
due  to  the  crown  and  the  party,  in  wery  er]*l 
min;il  c:ause  where  doubts  arise,  to  weigh  wcHl 
the  grounds  »nd  reasons  of  the  judgment ;  biitl 
it  is  of  great  oonsaquence,  to  explain  them  willi  I 
accuracy  aud  precision,  in  oj»eD  court;  espevJ 
cinlly  if  the  questions  be  of  a  general  tendeuay^i 
and  upon  topics  never  before  fully  conatdarM 
and  settled  ;  that  the  criminal  law  of  the  lasd 
may  he  certain  and  kuowu. 

Outlawry  is  a  very  important  part  of  Ih^ 
law.     Vet  It  it  no  wonder,  that  the  forms  ta^ 
metbcid  of  proceeding  are  so  little  attended  tO|1 
and  so  httle  uoderstood  :  lor»  Ibis  is  perh 
the  Artt  aoM»an  where  any  c|ue«^tiou  of  iavr^  j 
upon  a  writ  of  error  to  reverse  an  outlawry  i 
a  criminal  case,  ever  underwent  a  aerious  lil 
gatiofi. 

Outlawry  in  civU  actions  is  considered  as  i 
the  nature  of  civil  process,  to  compel  an  Bpml 
ppartnoe  to  the  suit  i  or,  if  after  judgUieDl,  iM 
procure  satisfaction.  Ttie  forfeiture,  though 
nominally  to  the  king,  yet  in  truth  gotea  U>  tof 
platntitf,  to w a rd«  payment  of  his  demand.  M 
the  outlaw  an|»etrs,  pays  all  the  costs,  puto  ia 
auScient  bail,  and  duKit  every  thing  he  eao  U> 
put  ilip  plniiitid*  in  as  good  a  coochtion  Ml 
woutd  havo  been  in  originully  ;  or  il*, 
judgment  th^  oullaw  pays  the  debt  and  costs. | 
the  Court  r«veraea  th*  uutlawry  upon  inotjo 


limt  botlatvlv;  h«tng  iu  ^irrution  upon  '  wiih»tit  uny  ^vl%  of  error.     The  form  of  tJie  j 


awry  iHer  ei»nvictjoii.      kW  i h ought « 

JuNtice   /l«ton    that  the  dirtend^ntV 

[wrre  in  the  wrong  when  tliey  declined 

argutm*ni,  which  tuighl  )»ove  given 

i  fuVlh<T  light.      He  ejfpreni^d  hts  io- 

lUlwavdM  the  reversal  of  outlawrias,  on 

k of  tbo  severity  of  the  jtidgtneoi  i^ioo 


««riud  always  Im^  **  ftW  Uur  erxuM  i 

Cither  triors  apjtrnnng  upon  the  rvcord : 

thcM»^h  iht^re  ii,  in  truth,  no  error  at  alL 

I-  h^fhti  m  criminal  Cju^es,  ia  itarlf  a  crimt.] 
If  an  innocitnt  man  fliet  ibr  ireuoQ  or  fotooy'^ 
he  foH^iij  till  Ins  gooita  attd  cliattels.  Oui-^ 
lairry,  in  a  etpital  case,  is  at  tLcouHVQi^QmVMt 


1099} 


4—10  GEORGE  lU. 


[ilOO 


the  crime:  and  many  men  who  nefcr  were 
tried  ha?e  been  executed  apon  the  outlawry. 

In  misdemeanours,  outlawry  is  firencrally  a 
more  severe  punishment  than  would  he  inflicted 
for  the  crime  of  which  the  outlaw  stands  ac- 
cused or  convicted.  It  is  a  forfeiture  of  his 
goods  and  chattels,  and  all  the  profits  of  his 
real  estate ;  and  perpetual  imprisonment,  with 
many  incapacities.  If  it  is  erroneous,  it  can- 
not he  reversed  without  a  writ  of  error. 

Till  the  third  of  queen  Anne,  a  writ  of  error 
in  any  criminal  case  was  held  to  be  merely 
tx  gratia.  Lord-keeper  lays  it  down*,  *<  that 
a  writ  of  error  in  a  criminal  matter  was  ex 
gratia regis^  in  all  cases ;"  and  said,f  "fie 
bad  a  collection  of  several  cases  out  of  the  old 
books  of  the  law,  that  were  ffiven  him  by  lord 
chief  justice  Hales,  which  shew  that  writs  of 
error  in  criminal  cases  are  not  jprantable  <  ex 
debito  justitice,'  but  *  ex  gratia  regis:'  and  in 
such  a  case,  a  man  ought  to  make  application 
to  the  king ;  and  he  will  then  refer  it  to  his 
counsel ;  and  if  they  certify  that  there  is  error, 
the  king  will  not  deny  a  writ  of  error."  It 
never  was  granted,  except  when  the  king, 
iTOinjostice,  where  therls  really  was  error,  or 
from  favour,  though  there  was  no  error,  was 
willing  the  outlawry  should  be  reversed.  After 
a  writ  of  error  granted,  the  attorney-general 
never  made  any  opposition ;  because,  either  he 
had  certified  *  there  was  error,*  and  thenhecould 
not  argue  against  his  own  certificate ;  or  the 
crown  meant  to  shew  favour,  and  then  he  had 
orders  *  not  to  oppose.'  The  king,  who  alone 
was  concerned  as  the  prosecutor,  and  who  had 
the  absolute  power  of  pardon,  being  willing 
that  the  outlawry  should  be  reversed,  Uiis  court 
reverstjd  upon  very  slight  and  trivial  objections, 
which  could  not  have  prevailed,  if  any  opposi- 
tion had  been  made,  or  if  the  precedent  had 
been  of  consequence.  The  form  of  reversal, 
'  for  the  errors  aligned  and  other  errors  ap- 

Jiearing  upon  record,'  delivered  the  Court 
rom  the  necessity  of  specifying  any ;  and 
they  might  think  themselves  well  warranted  to 
reverse,  upon  the  tacit  or  express  consent  of  the 
king,  where  he  alone  was  concerned  to  oppose ; 
though  there  really  was  no  error  at  all :  and, 
as  the  king  had  the  power  to  refuse  a  writ  of 
error,  the  precedent  was  of  no  consequence. 

But  in  the  3d  of  queen  Anne,]:  ten  of  the 
judges  were  of  opinion,  *  that  in  all  cases  under 
treason  and  felony,  a  writ  of  error  was  not 
merely  of  grace;  but  ought  to  be  granted.' 
Price  and  Smith  were  of  a  contrary  opinion, 
«*  that  a  writ  of  error  was  of  grace  only,  in  all 
criminal  cases.'  The  ten  did  not  mean  *  that 
it  was  a  writ  of  course ;'  but  that,  *  where 
there  was  probable  error,  it  ought  not  to  be 
denied.' 
It  cannot  issue  now,  without  a  fiat  from  the 

•  1  Vernon  170.    Crawle  v,  Crawle. 

t  Vid.  1  Vem.  176,  in  the  Rioters'  case- 
Burrow.  Qn.  also,  and  vide  Salk.  504. 

t  V.  the  Ailsbury  Case,  vol.  14,  p.  861. 
Salk.  364. 


Case  of  John  WUket^  eiq^ 

attorney-general ;  who  always 

ther  it  be  sought  merely  for  delay,  or  upoa  a 

probable  error. 

In  the  case  of  the  King  agaiott  Earbmy,'* 
the  opinion  of  the  Court  was  taken,  befiiie  the 
attorney -general  granted  bia  fiat  for  a  wikif 
error.  Jo  the  present  case  the  attomcy-gae- 
ral  refused  his  fiat,  while  the  defimdant  was  Ml 
of  custody. 

This  opinion  in  the  dd  of  qiieeo  Aooe  \m 
made  a  great  alteration  as  to  outlawries  is 
criminal  cases  under  treason  and  f^any.  Is  s 
misdemeanour,  iF  there  be  probable  causs^  k 
ought  not  to  be  denied.  This  Court  weali 
order  the  attorney-general  to  grant  bis  fill 
But  be  the  error  ever  so  manifest  in  tresssa  m 
felony,  the  king's  pleasure  to  deny  the  wiitii 
conclusive.  Lord  Muskerry,  the  son  and  hm 
of  the  earl  of  Clancarty,  petitioDed  for  a  writ 
of  error,  to  reverse  bis  other's  outlawiy;  bs- 
canse  his  father  was  a  prisoner  in  the  Temr 
of  London  during  the  whole  time  of  tbe  pit- 
ceedings  against  him.  The  fact  was  vcnM 
beyond  douot,  by  ei^ries  from  tbe  books  of  Iki 
Tower,  and  by  the  affidavit  of  the  duchess  d 
Marlborough.  The  late  lord  chief  joilice 
Willes,  then  attorney- general,  reported  ik 
writ  to  be  merelv  of  grace:  and,  upon  poliiieri 
reasons,  it  was  absolutely  refused  ;  and  tbe  SM* 
lawry  stands. 

A  writ  of  error  being  as  a  matter  ef  lijgH 
where  there  is  error  in  the  outlawry;  mm 
the  dd  of  queen  Anne,  in  all  crioMS  nis 
treason  and  felony,  •  What  is  an  error?*  W» 
came  an  im]K>rtant  question :  which  was  of  M 
consequence,  before.  Since  that  tioae,  thii 
Court  has  not  given  way  to  trivial  objcctisB% 
though  admitted  by  the  attowey-general.  k 
1708,  lord  Griffinf  was  brought  into  this  osvrt 
upon  an  outlawry  for  high  treason  :  and  upsi 
the  prayer  of  the  solicitor  general,  (there  bcnf 
then  no  attorney -general.)  a  rule  was  made  ftr 
his  execution.  He  was  reprieved,  from  lion 
to  time,  till  his  death.  His  grandson  and  heir, 
from  tbe  grace  and  favour  of  king  George  tke 
Ist,  obtained  a  writ  of  error.  8ir  Phihp  Yorke, 
then  attorney-general,  came  into  court,  wai 
said  he  had  a  sign  manual,  *  to  confess  tbe 
errors  and  consent  to  the  reversal.'  The  Coart 
told  him,  *  His  confessing  an  error  in  lav 
would  not  do:  thev  must  judge  it  to  be  ss 
error;  and  their judginent  would  be  a  prece- 
dent. But  the  plaintifi"  in  error  might  assin 
an  error  in  fact ;  which,  by  proper  autliori(y,is 
might  confess.*  Accordingly,  the  plaintiff  as- 
signed an  error  in  fact,  viz.  *  that  the  placed 
his  grandfather's  residence  was  in  the  county  if 
Northampton ;  whereas  he  had  been  outlawed  is 
London.'  The  attorney -general  confessed  ths 
fact :  whereupon,  the  outlawry  was  revened.{ 
Since  the  3d  of  queen  Anne,  no  question  of  Isw 
has  been  litigated,  upon  a  writ  of  error  to  vs- 

♦  9  Geo.  1.  Fortes.  38,  39. 
f  See  concerning  him,  the  Case  of  lord  Deis* 
mere,  vol.  1 1,  p.  511,  and  voL  18.  pp.  854l  8ft& 

JHill.  13G.1. 

4 


on  itoo  Infomtatiomjor  Libels. 

tnutUwry  ;  no  criminil  outlawry  haa 
cd  upon  a  triviul  objectioii :  no  ca^fe, 
ttiat  time,  lim  been  ftiun(l»  <»f  either  kind, 
klliiwry  U  ftn  c-»^eiittat  |Mirt  of  the  ciiminfil 
■|»e  rult^s  and  method  of  proceetUng  are 
^^ilciilated  to  prevent  if^norance  an<)  sur^ 
I  The  couBPijueoces  nre  n»ade  severe, 
ise  the  offence  i»  heinous  ;  and  it  imports 
tute,  that  no  man  shuutd  fly  from  the  laws 
notice  of  his  country.  This  Court  is  hound 
;  I  0  the  law  as  they  think-itis;  sl- 
,  (o  the  favourable  side,  where  they 
i .  w» .  Ml  sfiys  the  law.  It  is  as  much  a 
h  of  duty  toreverse  a  ifood  as  it  would  l>e 
trot  a  baid  outlawry.  The  mischief  goes 
er  tb*ti  KD  tmri^hteous  aeoteoce  in  the 
Dukr  ease.  For,  to  revei^e  without  an 
I  ia  to  abolish  that  pait  of  the  latv.  And 
fore  terjeanl  Gfynn  admitted  thnt  crimiaal 
irriea  were  not  to  be  reversed  of  course  : 
ror  must  be?  found. 

a  luatler  where  ihe  consequence  may  1n! 
nal  to  tbe  defendant  in  this  particular  case  \ 
9  the  grounds  of  the  judgement  must  be 
t  to  a  %'cry  essential  part  of  (he  cri- 
nf?er  before  hroug^ht  adversely  in 

and  therefore  lyioq'  under  great  ob* 
i  confusion  ;  I  feel  myself  extremely 

,nd  1  think  tlic  pubtic  obtijreil)  lo  those 

e  short  time  taken  for  consideration! 

d  the  subject  to  tbe  bottom.    From 

iais  with  M  htch  1  have  beeu  furnished, 

yself  sufficiently  iu&trueted,  to  form 
:  and  I  will  declare  the  grounds  and 
that  opinion  which  I  haveformed,  to 

it  and  numerous  audience,  with  as 
^  arcurncv  •rid  precisioo  as  I  can,  to  pre- 
luiaappreFieniion. 

^btre  tiro  sorts  of  error  which  ha? e  been 
^Pftod  argued. 

F,  Tlie  tirsi  sort  are  errors  which  gWe  rise 
et^lion^  of  Law,  and  to  real  arguments. 
,  The  second  are  criticisms  upon  words 
^llables  in  I  he  return. 
H|  first  sort,  two  are  assigned. — 
■there  is  no  sufficient  information  fllat 
^pteil  n^^aiuttt  the  defendant,  wliereou  to 
Hjihe  proi^i^ss  of  uutiai^ry. 
va  no  public  prochmalion  whatsoever  is 
ioned  to  ha?e    bt^eo    made  at  any  opeu 

...  .^j,y  j^eneral  quarter  «^essions  of  the 
ever;  or  at  the  doons  of  any  pa- 
^^ici«  where  the  s;iid  ddbndant  was  nn 
^kl ;  according  lo  the  exic^ency  of  the 
^Kof  CspiJis  cum  rroclanmtione. 
Hr  the  tir«t  error  assigned,  three  ot^jec- 
^^e  been  made. — 

L,  That  the  iiifurmntion  In  by  the  sol  ichor- 
rat*  u^d  uol  the  attorney  ^general, 
,  That  tn  outlawry  does  nut  lie  upon  ao 
rtmtioD, 

,  That  thuuii^h  it  miiy  he  upon  an  in  for - 
»n,  yet  it  di»ea  not  lie  for  such  an  offence 
pros«cutird  in  either  of  these  cases* 

~     i«r€irtQation  it  by  tbe  ioHcitor- 


A.  D.  1763—1770. 


[1102 


If  this  objection  is  founded,  it  writ  equatlj 
hold    upon  a  motion    in    arrest  of  judj^menl. 
But,  I  Mteve,  none  of  us,  from  the  bepnnin^|,l 
ever  entertained  the  least  doubt  concerning  iwj 
jln    information   for   a  misdemeanour   is   thi 
king's  suit.    Tbe  title  of  the  cause  is, 
kiuff  against  the  defendant:'    the  oath,  at  tb 
trial,  to  the  jurors  and  the  witna^ses,  is 
twcen  the  king  and  the  defendant.*      As  a  sub 
ject  Kues  by  attorney,  so  does  the  king ;  with  I 
little  variation  of  form,  from  deceocy:  instead 
of  saying,  *  The  king  sues  by — ,'  it  is  aaid 
*■  sues  for  the  king  ;*    and  yet,  **  Coram 
mino  rege  venit*  dominus  rex  p^  attornai 
nuum^et  inde  productt  sectam,'*  was  held  to  I 
good.     (Etale  chief  justice  said,  it  was  but  an  J 
unmannerly  way  of  declaring  for  Ihe  kingij 
Tbe  attorney  is'nnswerable,  it  be  acts  witboiift 
authority  ;    and  upon  complaint  by  the  partj 
whose  name  he  has  falsely  used,  tbe  Couf 
would  punish  him,  and  set  aside  the  proceed^] 
ings  :  but  while  the  principal  avows  him,  nei» 
ther  the  adfeme  [>arl>'  nor  the  Court  cau  dit3 
pute  his  authority.     The  coroner  of  this  court 
prosecutes  informations  for  the  king,  as  his  attor- 
ney.    The  form  of  the  proclamatiun  at  crmiitml 
trials  is  a  strong;  proof  thnt  anciently  the  king's 
serjeaut  mii»:ht  prosecute  for  the  king.     When 
there  did  not  esiiit  such  an  officer  b!*  sulicttor^l 
general,  the  king^s  serjennt  or  his  attorney  of 
other  that  would  sue  fur  the  king,  should  l># 
received  to  aver  against  the  lesiimooy  of  the 
porties  imprisonment,  where  the  outlawry  was 
pronounced  at  the  king^s  suit.f      There  ars 
many  entries  in  Hastai,t  which  shew  thai  it| 
the  common  law  others  than  the  attorney -geue«J 
ral  hafe  sued  for  the  king  ;  or,  in  other  word 
the  kiug  has  sued  by  others  as  his  attomie 
Serjeant  Glynn  cited    a   manuscript   treatis 
concerning  the  Star-chamber  -,  of  which  ! 
Filmer  has  a  copy  :  the  original  is  in  the  Mu<« 
seum.§     Tbe  autboPs  name  is  ureserved  ini 
note  written  in  this  present  book,   at  the  F 
ginning,  by  the  lord  keeper  Finch,  as  follows^ 
*'  This  treatise  was  compiled  by  William 
SOD  of  GrayVtoni  ^^q.  one  very  much  prac 
Used  and  of  great  experience  in  the  Star-cbam*' 
ber,  and  my   rery   affectiouale    friend.     His 
son    and     heir,     Mr.     Christopher     Hudsoo, 
(whose  band- writing  this  book  is),  after  his 
father's  death  gave  it  to  me,    19  Decemlier, 
1635,  J.  Finch/*  The  whole  passage  should  lie 
taken  together;  and  is  in  these  ivords  (fol.  84, 
and  85.     **  It  remaineth  that  1  shall,  in  the 
next  place,  treat  of  tbe  kiug^s  ordinary  suits : 
wbicnare  of  two  sorts  ;  either  by  hi<i  mtorney, 
intbnniDZofhiniselffOr  by  other  uien'sridations, 
and  by  lue  king's  almoner ;    the  one  Mn^  in 
criminal  causes,  th«  other  iti  civil.     For  the 


Entr, 
53, 


^  S  Lev.  82.    3  Keble   127.    IlasUl' 
655,  b.     Nee,  also,  sUL  Sa  H.  8,  c,  *^9t 

t  Vid.  5  Ed.3»c.  13. 

X  Tide  Uebt.  192,0.  ph  4.  Tille£«eb««t  11 
b.  pi.  3.  TUle  Quare  ruipedit,  627,  b.  pU  1. 

^  Uarleian  Catalogue,  No^  1290,  vol.  1 


li 


has  been  iiuce  pubtiiucd. 


ItOSJ 


4^10  GEORGE  IH. 


king's  atttNvey,  I  h«?e  known  it  much  qota- 
tkNMd,  Whether  «nj  other  of  the  kinf 's  ooubiel 
imy  not  inform  for  the  king,  m  well  as  the  nt- 
lomey  general.  And  it  is  true,  that  in  Easter 
tehn,  8  H.  8,  it  is  ordered  Uiat  the  king's  soli- 
eitor  shall  not  proaecnte  anjr  further  the  mer* 
ciiants  of  the  Stilisrd,  till  it  were  otfaerwisa 
«rdared  b^  the  ooundl :  and  the  same  term, 
^he  aoHcitor  was  commanded  to   sue  ont 

KDCSs  against  some  which  acquitted  one 
mnf  a  rape.  (M.  85.)  So  that  it  seemeth, 
thnc  others  of  the  king:'8  counsel  did  pro- 
•ebuia  causes  for  the  king,  as  well  as  the 
king's  atiomcy.  But  in  1  and  9  James  the 
Aral,  it  was  reselTed  by  the  Court,  that  it 
kelangetfa  to  the  place  of  the  attornejr.  And 
ierinant  Heale,  the  king's  Serjeant,  putting  in  a 
bill  against  sir  John  Luson,  was  denied  that 
prifil^.  For,  if  a  hill  be  put  in  by  the  king's 
eirattsel  as  for  the  king,  there  are  no  costs  to 
ht  paid  for  the  defendant,  nor  fees  for  the  pro* 
aecutiM :  but  in  this  cose,  serjeant  Heale's  bill 
was  dnmissad  with  SO/,  costs;  it  continuing 
hi  prosecution  not  above  two  terms."  It  is 
astonishing  how  any  other  law-officer  of  the 
king  could  claim,  as  an  official  right,  to  be  the 
kinff's  attorney  in  all  suits  which  he  should 
Umk  fit  to  bring  in  the  king's  na me.  The  rery 
eonstitntion  of  an  attorney-general  is  decisive 
against  it.  He  might  stop  every  suit  brought 
by  anaiker.  And  tterefore  the  counsel  did  very 
right,  as  between  the  king's  hiw-ollicers,  to 
over-role  iMjeant  Heale :  but  they  did  not  mean, 
that  the  king  himself,  for  special  reaaons, 
toight  not  appoint  another  to  act  aa  his 
aitoniey.  In  that  reiffn  afterwards,  Yelverton 
was  auipended,  and  the  solicitor  appointed  to 
act.  Suppose  the  attorney-  general  personally 
the  defendant :  there  must  be  another  to  sue 
for  the  king.  Suppose  the  attorney-general 
out  of  the  realm  ;  or  under  a  disability  from 
sickness:  suppose  the  office  of  attorney- ge- 
neral vacant.  When  ii  is,  the  basiness  (wbicli 
cannot  stand  still)  must  devolve  upon  another 
of  the  king's  counsel :  and  there  is  nothing  so 
certain,  as  that  the  whole  business  and  autho- 
rity of  the  attorney  devolves  upon  the  solicitor- 
general.  I  am  satisfied,  that  if  the  matter  was 
traced,  the  two  precedents  in  Easter  term, 
8  Hen.  8,  mentioned  by  Mr.  Hudson,  were 
during  the  vacancy  of  the  attorney's  office.  It 
is  impossible  the  counsel  could,  in  the  same 
term,  order  the  solicitor- j;eneral  to  stop  one 
]mblic  prosecution  and  oummence  another,  if 
there  had  been  an  attorney-general.  As  far 
as  the  memory  of  the  vacancies  of  the  attor- 
ney's office  has  led  to  a  Hearch,  precedents  have 
been  found  of  informations  filed  by  the  solici- 
tor-ffeneral,  in  Chancery,  and  on  the  law  side 
of  the  Exchequer.  In  this  court,  the  infor- 
mation against  the  earl  of  Devonshire*  was 
prosecutnt  by  the  aolicitor-general :  and 
though  the  enormity  of  the  fine  set,  and  the 
revolution  of  government  which  immediately 
followed,  made  this  case  the  8ul>|ect  of  much 


*  3  Jac.  S.  See  vol.  11,  p.  1353. 


One  ^J^im  mikm^  «if;  [IMH 

animadverShm  tad  just  ceasMv  t    *  Iha  asli- 
cilor-getperal   ha^g  prosecuted,'  wna  new 
objected.    There  are  pracfedcnto  •f  fc^tag^ 
denamTiog,  takmg  Issue,    praying  jwdgMM 
or  award  of  eKecMiaa,  by  the  s«ieilur-genenl| 
during  the  vaoancy  of  the  other  aCna,    Wa 
all  know,  from  nor  own  cspanmco.  that  upia 
every  vacancy  which  we  remember  of  the  al^ 
tomey'a  plane,  iiis  office  haa  been  oacciHed  If 
the  sdiaitor-general.    But  it  is  oltii,  *  The  ^ 
formatkm  ought  to  bare  saggealed  that  the  sl» 
fioe  of  attorney  was  vacant.*     Many  of  Ite 
precedents  do  not  supgeet  it ;  mud  tbrm  can  Al 
no  oceasipn.     The  attotney  gonciml  ia  a  Ml 
officer  of  the  law  and  of  thia  oourt.    The  GssM 
take  notice  when  the  oifioe  is  ▼ncant ;  and  If 
whom  it  is  filled,  when  full.    Thoy  gava  cml 
to  the  solicitor-geeerali  when  be  anna  as  attab 
ney  for  the  king,  <  that  he  has  aalhority .'    fli 
does  it  at  his  peril.    In  this  oaae,  befora  lhadi> 
fendant  pleaded,  the  solicitor-  general 
attorney,  and  in  that  capacity    bn 
court  the  information  ho  had  fllcd  aa 
If  an  objeetMNi  could  lie  to  bia  amliority  aasii 
lidtor,  the  only  queatkm  wosilil  be,  •  fkMi 
what  time  the  information  ahould  beeaoaiAMl 
as  commenced :  from  the  filing  by  the  aBia> 
tor  ;    or  the  bringing  into  eoart  by 
ney.'    And  that  could  be  of  no  eoi 
but  in  respect  of  the  time  when  Ibe  del 
ought  to  plead.    But  he  baa  pleaded  ia  Ibsir 
formation  brought  in  by  the  attorney -gtafffil} 
and  been  tried.     In  every  liirbt  and  in  aaay 
view,  this  objeotinn  »  groundleaa  :  netbaigtei 
been  ofiered  to  support  it,  but  aericant  llash% 
esse.    Upon  so  plain  a  point,  I  certainly  skdi 
not  hare  said  so  much,  but  that  the  obfselis 
also  goes  in  srrest  of  judgment,  and  thartkN 
may  lie  argued  again.    The  counsel  are  » 
prized  of  my  reasons ;    and  if  they  shssM 
think  their  objection  tenable,  I  am  opsa  n 
conviction. 


Second  objection  under  the  first 
signed — '  That  an  outlawry  does  not  lie  afii 
an  information.* 

The  counsel  for  the  defendant  supported  tWi 
objection,  two  ways.  First,  they  say,  ihi 
books  were  silent  on  this  heail :  the  statute  if 
Additions  mentions  only  that  *  in  original  erin 
<  of  personal  actions,  apneals,  and  indictnicstm 
'  in  which  the  exigent  shall  be  auardetl,Vc.** 
But  an  information  is  not  therein  memtoae'. 
Secondly,  they  said,  that  from  the  nature  if 
the  process  in  an  information,  the  exi«;eot  wa 
not  awardable.  For,  the  proceeding  hy  iiifif- 
mation  in  thi^  court  is  simdar  to  the  8n^ 
Chamber  precedents :  and  in  such  proc««divfi^ 
they  did  not  award  a  Capias,  but  a  Subpeeaa 
That  here,  the  antecedent  process  is  by  sun* 
mons  of  attachment,  not  by  Capias:  andow* 
sequently,  if  there  is  no  Capias  to  introduce  ihi 

groceas  of  exigent,  it  caunot  lie  in  this  dee. 
erjeant  Glynn  admitted,  as  a  point  beyond  al 
doubt,  <  that  informatior»  of  this  kind  wiM 

♦  Vid.  1  H,  5,  c  5,  §  1. 


1105] 


en  two  Tn/ormationsjor  Libels* 


A.  D.  176S-.1 


«  <^ocnpet«ni|  id  this  canrt,  it  the€oromoo*tiiw.^ 
N«  law)  er  ever  iloubrcd  of  it  i  no  lawyer  trould 
•eru»usl)  nrtfup  fttrairHl  iL  80  (hat  tir  lUirllio- 
lom^-w  Short  If  liMil  no  opporttitiity  to  deliver 
the  ar^^vtrnrnt  he  has  priQtfd.^  Informiitions 
lier^-  m'lther  derive  their  heing-,  nor  I  he  forni  of 
oroceedini;  upon  tht^m,  frfini  ihe  8tar*Chftm* 
her  ;  hui  from  the  cniimmri-UMr  of  the  land, 
mod  Uie  iivn^Te  and  practice  ol  thii  court  where 
ihey  Art*  rAhibited.  AlthoiiKh  infornriAtions  are 
li<)i  m^nlioued  in  the  atxiute  of  Addilion^t  yet 
the  same  rrqtitf  >te^  of  ccrtAinty  and  preci^doo 
must  be  in  an  inturmation,  as  in  nu  indictrtientf 
Presentment  it  not  mentioned  in  this  slultite. 
And  y*t,  on  a  pn^outmeat  before  the  coroner, 
•'^Thftt  Frt-nrh  was  fdo  ite*e,*  (♦rhich  wai  cer- 
*'*"  ^  mto  the  Kmtr^S'henrh,) '  and  that  cert.im 
4mcl»*s  ^i^oib  were  in  the  pn^session  of 
J.  . .  '  proft'*?*  isaiied  aj^inst  J.  S.  niitil  he  wna 
vi\.  •  And  upon  error  brnii^ht  for  that 
Hert  w^H  not  any  addihon  j^iven  to  the  suid 
1.*^*  in  *he  ptt'SfTJtnienl  npon  whith  he  wai 
ilia  wed/  it  s\rm  m  first  d  inUled  *  w!»ether 
bpou  thtit  pr^^enimpnt  prf^ctsi  of  otifUw^ry 
Hti  Ire:*  and  Ke,  clerk  of  thf  Crown-office, 
1  III  the  CvHirt*  *  iUni  such  proerss  in  tuch 
•»<'  difl  \iv ;  and  thut  he  v*mU\  nUew  6ve  liun- 
:  prect-deotsot  it,*  An.l,  secondly,  it  was 
noo«ed,  *  if  this  ontUvf  ry  ouffhi  to  Ue  rever?«ed 

*  for  default  of  uildition.*  Bui  it  whh  as^reed 
by  the  whole  Court,  tluit  an  to  thiti  purpose,  ftie 
nrefienimi-nt  should  he  areounted  ui  \nw  aa  an 
flKfictmrnt.^  I'o  an  lufoimntiou  in  nature  of  a 
OuoH'arrjiolo,to«hf  why  whaiflutboriiyihede- 
ftfidara  chiinieif  loheiihurLresn  ♦d  Giaiupound, 
tSie  drfendaitt  pleaded  in  ubaiemeat,  for  tvMiit  td' 
nrviper  addition  ;  the  iofiirinnlinu  styho[r  him 

g^  iabourer/  whereusi  he  wasi  ctothier;  and  ihis 
,  was  iitO¥ei|  to  h^  Hft  asule^  on  the  (fround, 

an  addition  waf  n»ii   ntcen^ry.*    Th** 

Conn  refused  to  get  it  aside  on  thai  ijround  : 
but  they  found  another,  the  want  of  a  proper 
Afiidattt  to  »eriJy  the  p!eii.|i  There  seems  as 
good  ground  to  uy^  upon  the  ftmt  id  prer<e- 
4eot9  and  construction  ot  the  atalute  of  Addi- 
iloriSf  *  that  proce^  of  out tu wry  lieg^  and  addt' 

*  lioa  \h  reipfi%tte  in  an  intormuuon/  us  m  the 
prttentnu'Ut  10  Frenelrs  case*  As  to  the  other 
•riffirtieatfrooi  the  nature  of  tlieprocesii — there 
W^%  00  autho  ity  or  |»recedent  citrd  or  pro- 
duced, to  prove  the  assertion.  On  ihecon- 
Iriry,  there  are  lujiny  preredeotii  where  the 
proceiM  itN«  hv  Cnpiat;  and  the  Exigent  fbj- 
lOfird:  aome*  as  in  the  present  case;  thoujfh 
■ifivt  tre  before  con%irtion.     But  *  that  a  Ca- 

I  doeM  lie,  in  |>rocesk  opou  theae  in  (or ma- 

I   lake  to  l>e  a*  ohi  as  their  existence. 

'  not,  how  could  there  Imre  been  such  a  nuiO'- 

'  i»f  outlawrief  upou  infonuations;  and  some, 


•  1  fKhower  loa. 


ni 


V,  Eercbel,  et  aL 


QOt. 


•200. 

\{    t  h«  King  agiuiu: 
I74K 


Elix,  3  Leo- 
n.  t*  G,  a, 


of  ancient  date?  AU  the«e  records  are  ao 
many  authoriiiet  to  support  ih»  process  \  whicU 
are  not,  after  ao  ^eat  a  length  of  nnqnestioned 
usage,  to  be  now  impeached.*  And  it  is  ob« 
^crvttble  on  the  18  Edw.  3,  st^t  1,  that  it  not 
only  clearly  relates  to  a  proceeding  before 
juflgmcnt;  but  it  gives  the  Extgenf^  if  tbo 
party  i^  not  brought  in  on  an  altaeiiineol  or  dis^ 
tress.  However,  there  is  no  need  to  resort  to 
that  kind  of  reasoning,  when  usage  supports 
the  Ctipias,  in  the  present  case,  as  the  cuaiitioii 
process  upuQ  these  occasions. 

Third  objectioti  under  the  first  error  an* 
signed — *  That  outlawry  does  not  lie,  from  the 

*  nature  of  the  offence/ 

This  objection  was  slightly  touched  by  Mr, 
Serjeant  Glynn  ;  hut  struck  us,  at  fir«t,  d4  a 
point  6t  to  be  considered :  and  I  tnentioned  to 
llie  bar,  *  that  it  iDi};ht  be  [»r>per  to  look  inra 

*  it.*  The  doubt  wn*»,  *  whether  the  offence 
'  charged  in   eitfier  of  these  informations  was 

*  such  as  rt^ndered  the  porstm  acrused  of  stjclt 
*■  crime  liable  to  the  process  otnuUttwrv^,  either 

*  at  common- to w\  or  by  any  statute.^  In  Coke 
Littleton,  12<i  b.  it  is  «iaid,  *  that  in  the  leign  of 

*  king  Alfred,  nod  till  a  good  while  after  the 
*■  Conquest^  no  man  couldf  be  oiuhiwed  but  for 

*  fohmy  ;  the  punishment  whereof  was  d«^aih ; 
^  but  after,  in  Bracton^a  time  and  some v%hat  be- 

*  fore,  process  of  oulhiwry  was  ordained  to  lie 

*  in  ttll  flCtlon»i  thut  wf  re   *  rjuare  vi  et  artnis,^ 

*  which  Hnition  calls  *  Delic  a,*  fur  there  the 
'  king  chilli  hnve  a  fiiu'.'  The  Id  Edw.  5,  it.  1, 
drrUres  the  cases  auil  offt^nrefi  for  whirh  the 
E\ii2eot  slhiU  be  awardi  d,  if  the  party  cannot 
be  found  or  brought  in  by  attnchuient  or  dts* 
irefTif;  and  not  agatust  any  01  her.  Also,  the 
18  Eilw.  3,  atat,  V,  v.  5,  says, — *  No  Eitigent 
^  slmll  from  henceforth  go  out,  where  a  mun  is 

*  iodit'ted  of  tiespass;  iinlt'ss  it  be  ngAiuHt  the 
^  peace,  or  of  ihingN  whieh  be  contained  in  the 

*  di'clanition  made  iti  tluit  c^r^e  at  the  Uai  pur- 

*  liament.*  liui  upon  full  LMnxjUraiiori,  I  am 
very  wetl  satt^tted  that  tlie  ciumsel  for  the  de- 
fipudant  judged  right  in  Uying  no  stress  upon 
this  otiji'Ctiou.  The  offences  laid  in  Ihe^e  lu- 
forumtions,  and  the  proceedings  upon  ihrm^ 
are  at  the  common- law.  The  statutes  i^iving 
process  of  outlawry  in  certain  case?.,  and  re- 
stricting ita  ias^uiug  in  otherii  hut  uniter  certain 
circumstances,  do  not  affect  the  present  quei- 
tion:  the  procesii  is  warranted,  in  the  preaent 
case*  by  the  common-Jaw,  or  not  at  alt*  Actual 
force  or  Tiolence  ihu'^  not  appear  to  be  the  rri- 
terion  tipoD  which  the  proc*-**  of  outlawry  was 
foundedi  The  greatness  of  the  crime,  and 
the  si'verity  of  the  puuiN^  ui  to  t»o  iho 
material  circumstanceM  >  Attended  to, 
in  fotmding  this  prnctss,  rimMding  to  the 
passage  I  hate  just  cited  Irouj  Coke,  as  to  the 
earliest  times ;  for,  Idony  does  not  imply  or 
convey  the  idc?a  of  actual  outrage;  grand 
larceny  being  m  iiadefuipti'^^'  *'^  ^vr.|l  jm  prac- 
tice, differeni.     And  kU\^                ruis  this  no. 


5  Mod.  4(>d,  404. 


4-.I0OlOBGBnL 


1107] 

«kylbr  all  emctora  ^ 
<  liBipMi  «•  •!  «nMt.'  Tkt  VLWamom  of  nm 
pi— en  ii  MpBQMd  1^  lord  Coko,  in  the  pM- 
mft  I  qaolod,(aBdwiiftl  ho  tayoy  it  fcpcoted, 
wiUmwI  onuniMlioii,  by  a  variety  of  aiitlH>n)| 
la  havo  beca  aomewbat  boftro  Biaeton'a  tinio. 
The  oataMisbiaf  that  porMMly  for  a  oappoitd 
Offiioaoee  ooacormg  ontlawrieai  otrongly 
anthoBlioatta    tbo    teotinoay  of    that    oa* 


wbieb,  and  ondar  what  drtuaiitaacei  thia 
Moceai  hy.  Lord  Coke  taw,  thai  it  was 
iMpoiiibia  tbaay,  < that  oatlawry  dM  aollie 
ftr  aay  criaae  mdar  ftloay :'  uaivoml  prae- 
tice  abowed  tbo  contrary.  80  be  aappoaca  a 
pMittvo  ■tatola  iiada'aboal  Diaulau'a  tnne. 
Than  dooa  Bot  appear  aay  partioriarovdiBaaeo 
ihr  oitaadlny  this  paoeaw :  aad  tbaro  ia  bo  a»* 
thoritylartheaappQBitMNu  But  BcmIod  (who 
vrataMthe  vrigm  of  Homy  the  3d)  tmyif 
<  thai  k  lay  is  ooui  tnoMmaMM  Mw  fit  0001- 


•tra  paeaat;'    and  afterwariatv  *pro    ooui 
ItaMgraiwiui,  hofltMwioiiy  «bi  fiwadpa* 
*  «cai  dMBidt  Mfia  Toeataa, 
«olhoo  propter  ooBi 


fiMcoia  titt 


ThtttthitM- 
ie«»,*did  001 
Bittiaf  oTihe 
givw  why  it 
lay  lor  fieiaBy,  t  80.  Ahr,  805.  *  Onlhiwry 
k^fbrielaBy;  beeane  it  waa  eMiIro  pocen.' 
For,  tint  coald  Mt  bmob  (at  1  havo  ahoady 
aid)  -        .   .       ' 


two  MaJMl  the  lawa  of  toeictyt 
•MO  of  the!  good  order  and  Mvi 


oaity  aad  pcaec.  The 
of  fcuroeBy,  is  Ht  very  aafeare^  it  eaerat  a«d 
fiandaieal^oaleat  it  he  doao  frith  open  vJeltBec; 
and  then  it  b  ditliiuniisbed  by  the  aggravated 
Baaeoffobberj.  §etidet«in  ihecateofwrita 
yaerv  vi  ei  enait,  (m  wbidi  caeet  tUt  proeeai 
It  given,)  it  it  acknowledged  to  been  aeooont 
of  tbo  anppoaed,  not  the  actual  ftrce.  And  eo 
b  the  tame  place  in  3  Ro.  Abr.  805,  aad  the 
95  H.  0,  (a)  and  (b)  aad  many  other  bookt. 
la  fiMt,  theietfbre,  it  appeart  mMB  Bractoa, 
*  that  every  oienoe  comoBitted  ogaintt  the 
paaoe  lubfoeted  the  ddioqaeot  to  the  proceai  of 
ontbwry.'  Aad  the  catee  tbew,  that  the  peace 
of  the  king  b  broke  by  ditordert  witbont  force. 
And  indeed  tooM  of  thegrettest  crinet  are 
withont  farce.  If  force  wee  tbo  ciiteiion  on 
which  thb  procev  of  exigent  wat  fbonded  at 
ooBBiBon-bw,  why  was  that  proccM  given  by 
the  first  statute  of  Edward  the  third,t  in  the 
oateef  riett,^.?  Or  what  occatioo  had  there 
heeo  for  the  tabteqoent  statute  of  Edward 
the  third-ll  to  say^*  From  henceforth,  it  shall 
'  ue  in  trespass,  unless  it  b  against  the 
if  the  practice  bad  not  been,  upon  in- 
its,  thoagh  not  so  allcfcd,  for  proocoi 
of  erigentto  issue?  And  that  seems  to  be  the 

•  8HawkiasP.C.I.t,ct7,p.S09. 

t  iaEdw.S,st.l. 
I  18fidv.9|aLt,€.S. 


tfthataat 
not  find  it  over  waa 


of  ontlawry  lay:  aad  aok  b 
be  agreed,  in  brook%  title  < 
cbee  8  H.  «.•    Bat  a 
have 

poeew,  without  m  §i 
not  be  ootaaatttd  wini  fot^t 
whbh,  alooa,  it 


iihitt 


think,  Mr.Attoiacya 
for  back  at  the  fifth  tf 

Thoteooiifcinraa«fBel  baa  tatba  | 
'^amalioni* 
Tbentuni  «y»— ^  I  iMvocaaaad  adJtpt-^ 
imatka  to  hemada»  ia  nMaer  aaifom  «l 
•   Tlwb( 


M 


withiai 
tha^ 
tet  oati.for  tha Goait  to  jadga 
properly  mtdo  or  not.    I 
fatal.    Mt  Mr.  Thoriav 
*that  itwaaiianrrietaiy  to avka an  aatdiK 
at  alL'    The  atatolM  wUci  nmkk 
KM  do  not  cstaai  to  Hub  0Ha :  flA 
thmr  am  not  lUfHied  hw  tha 
Inoeed,  thb  enor  wat  la^a  n 
and  nveaapbyi 
ply:  bo  did  note 
omtaiy.'    Tha 
CffOWft-ofBeeaw 
thowt  under  what  < 

fiet:  the  rtmll  <      _ 

ailiauiefQlc 
of  tha  o£&ce>  tyj 
have  BOldiatiBgutthcdhetwaca  cifil  ud  oi- 
nuaalootkwrbt:  thqr  have  not  iii  :  i^iitthii 
hetwoen  the  it  nnrr  of  prootedip^  '  •  uOsv  b 
criminal  rttei,  before  aad  after  cuarii 
All  b  jumbled  together:  whator^f  k  1 
in  any  cate,  they  havo  applied  toalL'  Cb» 
comsuncet  are  unneeestaiiiy  require^  at 
fectively  returned;  becanio  farmer  bm 
are  eoned  at  preoedenta,  withoat 
tioo.  Bat,  at  the  pmrhmitiona,  ia 
were  nusatory  and  tuperflaoat,  tha 
I  tioo  of  the  return  b  of  no 
I  no  error. 

I      Of  the  tecopd  etrt  of  ervorty 


}      •  Vkle  Bro.  Abr.  titb 

^  pi.  S9,  aad  tiUe  Prooen^  pi.  16. 

t  «<Tho  ttaLSI  EKs.  c  S,aettiBa  theftimb 
cnri/ prooredings ;  aad  the  4  &  5  W.  8rK 
c.  29,  §  4,  eitends  theorovbioBtof  tbefbnav 
act  to  crimimml  caeet  before  judgatinl.  fir 
there  b  a  dUerenee  in  that  reapect  whether  Ai 
outbwry  be  afler  or  before  jadgoacatB  for  ■ 


And  unlos  that 

Wilkes's  Case,  that 

row  may  auslcod,  for  thio 

stated.    In  foot  that  waa  aa  oal 

coavidMB,  aad  therefoia  b  «d  Mt 

thettaluteef  W.&M.**  P^ 

Gate  of  George  BtmiflaByS 

4 


i.iB*» 


on  imo  Informations/or  Lihch 
ItW,  tw#  tre  wigned:    iwbicb   were  mr> 

l«t,  For  that  it  is  not  ihcwn,  nor  doe§  it  ap- 
k^  hy  ihe  reliim  of  ibe  sheriff  of  Middlese.t. 
Ltiat  Ibe  tlefeodaot  w4s  a  firtt,  second,  ihird, 
Kirlli,  and  fitih  time  ex&cled  at  tbe  oouDty- 
>un  of  the  cotiuly  of  Mrddlefiex  ;*  as,  bv  Uie 
m  of  the  taud,  he  ou^fht  lo  baTe  been,  betwre 
t  waa  outlawed^ 

Undar  ibia  error  ibns  assigned,  two  objec- 
bus  were  made :  as  to  Ibe  first  exaction  ;  and 
ilo  the  subsequent. 

IT  First,  A»  to  Ibe  first,— The  f«tarw  is  by  two 

ti-    -'  rr\^  of  Middlesex:    '  At  my  couniy- 

c  i,  &c.'     So  that  two  men,  making 

.^  .,.M^ti,  that  is,  sheriff  of  the  county  of 

ilddletex,  say,    ^  At  mv  court  held  in  the 

of  Mirftliesex.'     To  raise  a  doubt,  it  is 

iry  to  go  out  of  the  record,  into  history 

^^    We  know  from  ibeoce,  thai  the  same 

Gft  might  Jie  sheriff  of  two  counties,     TiiJ 

e  13ih  of  Elizabeth  one  person  was  slieriff  of 

tmerset  and  norsetsbire ;  and  aoof  Siissex  and 

iirey  ;  of  Oxford  and  Berks  ;  of  Nottingham 

id  ljeic«*i<ershire  :  and  to  this  day,  the  same 

Tsoii  is  fiheritf  of  Cambridge   and  Huntin^- 

|B»oshire.      Such  o  sh^ritT  mityht  by  law  bo!d 

i  eitbrrf  the  county-  couii  of  the  other,     6  H, 

p,  \bh,     in  the  caVe  of  ilie  sheriff  of  Soracr- 

St,  nho  was  then  also  sheriff  of  Dorsetshire, 

my  court  in    the  county  of  Somerset'  was 

[jud^r^J  uuc*>riain.     tl  il.  7,  10  a,  in  a  like 

we,    Rede  Fairfax   and   Hussey  iocluied   to 

link  it  certain  enough  ;    and  adjourned  the 

pnsideration.      But  here  it  is   impOfJiiMe  to 

iae  a  doubt.      Unless  the  sheriff  of  Middle- 

rx   moy  bold  the  court  of  another  county  in 

iddlLsr^,  •  At  my  cftuni V -court,' cati  only  l>e 

c    «oni»ty*court  of  Middtesex.      T*vo  men, 


r 


[1110 

ii  iathe  county  of  Middleaex.'  Tlie  i  _ 
say 8^ — *  At  the  bonse  kiwrnn  t»y  the  aiifo  of 
the  riiree  Tuna  in  Brtjok-stteett  near  l4olb<Nii, 
in  the  county  of  Middlesex.'  The  counsr4  f<>r 
the  defenddiit  i!ontend,  Uiai  the  true  eoifstnio- 
tiou  oti^bt  to  be,  to  apply  *  in  the  county  «f 
MiddieveXt*  lo  Holboru,  and  not  to  Qrwit* 
sirect ;  tviiJ  so  make  a  slop,  at  Brook -sliviA.* 
h  is  impossible  for  me  to  doubt  wbtlbec  *  \wmt 
Holboro/  is  not  part  of  the  deacriptian  of 
Bronk-atrecl.f     It  could  be  added  for  no  olber 


t  Middlesex,  never  were  uor  could  be 
^r  any  other  counly.    The  error  is  not 
^  for  want  of  aoy  technical  form   of 
but  *  that  it  is  not  sbe^irii^  nor  ilws  it 
ilie  return  ;*  whereas  i  am  of  opinion 
I,  and  dots  uppear  1»>'  the  return,  that 
,j-cimrt  was  ot  Middle-gex,  and  could 
.itily  Iwe  the  court  of  nny  other  county, 
idW,— *As  to  tiie  suliw<iuent  exactions 
lie  objecli«to  i>i,  *  thul  it  is  not  shewn,  nor 
tl  •p|>^*r,  where  ibr  court  wais  held,  at 
^^  be  was  exacted.*      The  return,  having 
cifled  the  place  wtiere  the  court  was  held  ai 
was  fin»t  exacted,  slates  severally  the 
ut  exactions,  •  at  n»y  court  held  ai  the 
(ilace/       8o  that  the   whotc  doubt  i«, 
_iH«f  the  »»me  phire  includes  I  lie  df*crip- 
^  ilie  pi  I.  I  to:'    vvhich  cannol 

doulit.  Ill  -je  of  the  woild.  For, 

Mini  r.ju  i*f  no  oilier  tlian  *  whe- 
pt»ce  marjis  the  same  place, 
,,,  i.ir  jMice  before  described,* 

mil  critical  error.    The  oaly  other  error 
...  and  arifued,  is— » 

li  no  where  expreaidy  abewn,  tbct  the 

called  Brook -street,  where  the  terrrtl 

poiiria  are  iUf  posed  tu  bare  been  bekt, 


♦  See  16  Via.  «0«.     Dyer  376»  a.  2  HaUr*e 
Hist.  PI.  Cr,  SOS,    Id  Vin,  310,  pi.  17, 

t  In  the  case  of  TbeUuaaoD  v.  Wocidfonl  (I 
Veaey  juoior,  8«7)  in  arguiueul  concernmgr  the 
construction  of  a  will  it  was  contended  (p.  %¥>) 
thai  the  mle  **  ad  proximnm  nolecedeiitem  fiat 
relatio  nisi  impaiiaiur  Henteniia,**  <Aa  tn  whicti 
see  Roseweirs  Case  toL  10,  p.  147),  is  a  rule 
of  grammarj  of  lair ^  and  of  common  senae,  aoil 
that  the  law  forbids  reference  to  a  former  en- 
tecedent  unless  upon  necessity.  But  sir 
Richard  Pepper  Ardeo  (afterwards  lord  hU 
vaoley,  Ch,  Just,  of  C.  B.)  Master  of  the  Itolb, 
(p.  330)  denied  the  rule  that  words  of  restrio« 
tton  are  to  be  applied  only  to  the  last  antece- 
dent. And  by  him  »*  It  is  not  so  even  in  cri- 
minal proceedings;  to  which  it  is  said  we  must 
compare  this:  hut  I  deny  that  there  is  such  « 
rule  e*en  in  criminal  cases.  In  those,  as  in  all 
other  cases,  the  queslion  as  lo  the  intention  of 
wonifl  of  reference  must  depend  upon  the  coo- 
lext*  There  are  two  remarkable  ca«ea  in  the 
memory  of  every  one  who  bears  roe ;  the  one 
a  capital  caae;  the  other  a  case  upon  an  out- 
lawry, a  cam*  in  which  the  Court  is  more  de» 
siroua  of  tindini;  objections  tliun  in  any  '*tber  j 
anil  in  Uiat  rery  case  tli«o*>iection,  u^ion  which 
the  outlawry  was  ultimately  reversed,  wa<  coo. 
sidereil  by  many  persons  tw»  refined,*'  The  case 
of  outlawry  lo  »  hich  his  hononr  alluded  wi»»  tb«e 
of  Wilkes:  the  capital  caae  was  iliat  ol  Hex 
V.  Itoyce,  4  Burrow,  «073.  In  that  caae  the 
jury  found  in  a  sjiecial  irrilict  thai  certain  per- 
■oris  nnlawfully,  Ace,  hvi^nw  to  drniohali  and 
pull  down  a  duelling  himi»,  awl  that  at  ihetAme 
they  l>euan  lo  demolish  the  dweWef  IliMk 
the  defendiint  did  eocoturB^e  and  alict  Hie  iey 
prraons  in  brgtnmn^  to  deHPtMl  ttid  pnll  dow« 
the  dwcllmg  boune,  by  siMUlinfT  and  usintf  ««- 
pre^«ions  lo  tocite  the  satd  pefHoua  solo  do } 
and  it  wae  argued  U»at  the  abetlmif  ^«s  ot>ii- 
Aned  to  **  ilMiiiniig  and  miini^  rxpretauons  U>  in- 
cite Ihe  %M  fiersons  wa  to  «hi,*'  that  is  '*  to 
ftbcftnt/*  for  sboetm  4i  the  leH  aaleeedeoi.  But 
by  l.»rd  Maosfield,Ial»*«fief  tbeo^ionof  ike 
Court,  **  Wc  are  all  of  opinton  iliet  tb*re  is 
rally  no  cdonr  for  that  c4w«»irn€tion ;  it  will  m\ 
hoy  etllier  in  regard  to  the  oUinousaiHl  mani- 
frai  eente  ena  iiiee*'inK  of  the  t»rnlenee  nod  iie 
context,  or  in  point  «f  irramtnat  ;  ••o  lo  do»* 
i«  '  to  do  Ihe  act,*  which  »rt  i*  two  nt  ibret 
timea  over  in  this  same  teoienee  »pe«rifi«Nl  and 
deecribed  lo  be,  **  brifioniof  to  demoli»b  and 
pull  down  a  dwelling  botiav.''  In  the  cue  nf 
Carbottel  ».  DmtUti,Triii.  lTtoAl**«^*^'^V 


nil]         4--I0  GEORGE  m. 

leaion :  it  could  amwer  do  end,  to  say,  <  near 
Hoiboro,'  bot  as  |>art  of  the  name  or  descrtp- 
tioD  of  tliis  Brook -street,  in  GOutradbtinctioD  to 
some  ether  Brook-street.  It  is  immaterial 
irbat  count V  Holborn  is  in :  but  the  sheriff  was 
bound  to  shew  that  Brook-street  was  in  Mid- 
dlesex. There  is  no  law  in  this:  it  is  a  ques- 
tion of  construction.  All  men  can  judge  of  it ; 
and  would  treat  with  contempt  the  judgment  of 
this  sovereign  court,  if  it  could  be  founded 
upon  so  pitiful  a  prerarication.  It  is  not  per- 
mitted to  me  to  say  *  I  donbt  of  the  construc- 
tion,' unless  I  do  doubt ;  how  much  soever  I 
may  wish  that  this  outlawry  should  not  stand. 
I  am  of  opinion,  that,  according  to  the  letter, 
sense,  and  grammatical  construction  of  the 
sentence,  the  CouK  was  held  in  *  Brook- 
street  near  Holborn  ;'  and  that  *  Brook-atreet 
near  Holborn'  lies  in  the  county  of  Bliddlesex : 
and  1  am  p«'r8tiaded,  there  is  no  man  who  can 
think  otherwise. 

These  are  the  errors  ^nhich  have  been  ob- 
jected ;  and  this  the  manner  and  form  in  which 
they  are  assigned.  For  the  reasons  I  have 
given,  I  cannot  allow  any  of  them.  It  was 
our  duty,  as  well  as  our  inclination,  sedulously 
to  consider  whether  upon  any  other  ground, 
or  in  any  other  light,  we  could  find  an  infor- 
mality which  we  might  allow  with  satisfaction 
to  our  own  minds,  and  avow  to  the  world. 

But  here,  let  me  pause 

It  is  fit  to  take  some  notice  of  the  varions 
terrors  hung  out ;  the  numerous  crowds  which 
have  attended  and  now  attend  in  and  about  the 
hall,  out  of  all  reach  of  hearing  what  passes 
in  court;  and  the  tumults  which,  in  other 
places,  have  shamefully  insulted  all  order  and 

Sovernment.  Au<iacious  addresses  in  print 
ictate  to  us,  from  those  they  call  the  people, 
the  judgment  lo  be  given  now,  and  afterwards 
upon  the  conviction.  Reasons  of  policy  are 
urged,  from  danger  to  the  kingdom,  by  com- 
motions and  general  confusion. 

Give  me  leave  to  take  the  opportunity  of 
this  great  and  respectable  audience,  to  let  the 
^'hole  world  know,  all  such  attempts  are  vain. 
Unless  we  have  been  able  to  find  an  error  t%hich 
vr\\\  bear  us  out,  to  reverse  tht^  outlawry,  it 

upon  a  promissory  note  set  out  to  tie  made  Ud 
of  November  1719,  to  pay  on  the  3l8t  of  De- 
cember next,  it  was  argued  that  the  v«ord 
*  next,'  did  not  refer  to  the  date  of  the  note, 
but  to  the  time  of  declaring;  so  that  the  plain- 
tifi' complains  in  Trinity  term,  that  at  that  time 
the  defendant  ha'i  not  paid  a  sum  of  money 
which  he  was  obliged  by  note  to  pay  in  De- 
cember next.  B'.'X  per  curiam^  *'  We  must  take 
it  *  secundum  subjeclam  mHteriam,'  and  as  a 
translation  of  the  note,  and  then  it  can  be  no 
otlien^ise  than  a  note  the  2d  of  November 
1719,  to  pay  in  December  next,  which  is  next 
alter  the  date  of  the  note."  8ee  also  in  vol.  13, 
p.  224,  lord  chief  justice  Treby's  qualifi- 
cation of  the  rule  for  applyuig  the  relative  to 
the  last  anteoedent. 


Ciue  qfJdhm  W3Shf  Hf.  [IIU 

most  be  affinbed.  The  ooostitQtioD  doss  ast 
allow  reasons  of  state  lo  influence  cor  jodgi* 
inenU :  God  forbid  it  should !  We  most  ast 
regard  political  oonsequenceS)  how  formklaUs 
soever  they  might  be:  if  rebellioa  was  the 
certain  consequence,  we  are  bound  to  say, 
*  Fiat  justitia,  mat  coelum.'  The  oonstitatisa 
trusts  the  king  with  reasons  of  state  and  po- 
licy ;  he  may  stop  prosecutions ;  he  may  par* 
don  offences ;  it  is  his,  to  judge  whellicr  tiM 
law  or  the  criminal  should  yidd.  We  faafi 
no  election.  None  of  us  encouraged  or  ap- 
proved the  commission  of  either  of  the  crisMi 
of  which  the  defendant  is  convicted :  nooe  sf 
us  had  any  hand  in  his  being  prosecuted.  Am  H 
myself,  I  took  no  part  (in  another  place,)  in  tbe 
addresses  for  that  prosecution.  We  did  art 
advise  or  assist  the  defendant  to  fly  from  iustiee: 
it  was  his  own  act ;  and  he  most  take  the  ess- 
sequences.  None  of  us  have  been  coosuM^ 
or  had  any  thing  to  do  with  the  present  pie- 
secution.  It  is  not  in  our  power  to  stop  it:  il 
was  not  in  ourpower  to  bring  it  on.  We  as- 
not  pardon.  We  are  to  say,  what  we  take  lit 
law  to  be :  if  we  do  not  speak  our  real  Sfl* 
nions,  we  prevaricate  with  God  and  our  eai 
consciences. 

I  pass  over  many  aoonymoos  letters  I  havi 
received.  Those  m  print  are  public:  aid 
some  of  them  have  been  broaght  judicially  b* 
fore  the  Court.  W  hoever  the  wriiers  are,  ihnj 
take  the  wrong  way.  I  will  do  my  duly,  m- 
awed.  What  am  I  to  fear  ?  That  mendas  uj^ 
mia  from  the  press,  which  daily  coios  w 
facts  and  false  motives?  The  lies  ofcaUnuj 
carry  no  terror  to  me.  I  trust,  that  my  teaipcr 
of  mind,  and  the  colour  and  coo«iocl  of  aj 
life,  have  given  me  a  suit  of  armour  agsisiC 
these- arrows.  If,  durinor  this  kind's  reiga,  I 
have  ever  supported  his  governmtritt,  and  ai- 
siKted  his  measures,  1  have  done  it  without 
any  other  reward,  than  ttie  conHciouiDfss  if 
doing  what  I  thought  ritrht.  If  1  ha««'  ettf 
opposed,  I  have  done  it  upno  the  pointK  them* 
selves,  without  mixing  in  party  or  lactiou,  aad 
without  any  c«tlUteral  views.  I  honour  <K 
king;  and  respect  the  peoplf:  hut,  iiiaoj 
things  acquinnJ  by  the  favour  of  either,  are,  ii 
my  account,  objects  not  worth  amhition  I 
wish    |io:.uUritv*,  <>ut.    it   is    thnt    |Mi,»u:ant]r 

*  »*  A  popiiUr  judge  i>i  a  deturme  \  ning:  aod 
blaudites  are  fitter  tor  pia>  ers  than  tor  roast*' 
trattrs.  Do  good  to  the  people  ;  love  ihfro  tfd 
give  them  justice  ;  but  let  it  be  hs  the  pMie 
says,  *  nihil  inde  expectaittes,'  lotikint*  tV  no- 
thing, neither  praise  nor  profit."  Lord  iiaroe'i 
S|»eech  in  the  Star  Chamber  before  the  aumiaef 
circuits  in  the  year  1617. 

Lord  Mansfield's  expressions  in  the  text  cot* 
ceriiing  popularity  were  some  years  afta^ 
wards  criticised  by  Mr.  Home  in  the  oetft 
of  King's- bench.  See  his  Case  for  a  M 
A,  D.  1776.  The  general  structure  of  ifcii 
s|>eech  of  the  Chief- Justice  was  not  spsni  ^ 
his  enemies  at  the  time.  lo  *  Anotber  UW 
to  Mr.  AlmoQ'  ia  the  following  ] 


on  two  InJ^jrmationsJbr  tAUh 

iws ;  not  lliBt  vrhich  is  run  after.  It 
iiiliirity  which,  sooner  or  liit^r,  never 

justice  to  Hie  |)ur«tut  of  noUle  enfls. 
earn.     1  will  not  do  that  which  rny 

ieU»  me  h  wroo^,  upon  this  orca- 

Eitn  th«  huz/aa  of  thoujiandSf  or  the 
e  of  nU  the  p^ijiers  which  conic  (rom 
r:  I  will  not  i& void  doint;  whtii  I  ihink 
Ihouijh  it  shoutd  draw  oli  me  the  whole 
of  hhelfl  ;  all  that  ttUnehood  and  Dmlice 
itt  or  the  creduUty  of  a  deluded  popu- 
I  wallow.  I  can  say,  with  a  great  ina- 
lipoti  ati  nccasion  'and  under  circuin- 


A.  D.  1763—1770. 


[lilt 


I  acute  prarti'^ern  every  studied  pre- 
|lp«rtiii!ity,  ol  proilimous  firmness,  of  a 
I  of  danger  even  to  the  loiis  of  lite,  and 
;rerue  anxioosnejis  in  any  crown  pro- 
|o  find  out  (tte  s  ma  I  test  iota  of  ju^ti(i> 

the  defendautt  witl  only  raiie  nn  ex* 

y  attention  to  every  colour  of  g^ood 
i  every  shade  or  h^ht,  made  use  ot  l>y 
gfCi  and  to  the  whole  of  his  jjeslure ; 
jerdousy  will  he  ^et  on  the  watch  hy 
enefs  and  uniisualuess  of  an  elaborate 
\  from  the  chaste  bench  of  (iol>er)udi- 
)  What  fitiould  make  so  artifieini  a  t>e- 
tece&Nai-y  ?  Judij^s  who  mean  nothing' 
ted  never  recur  to  these  meretrrcioui 

»y  then  should  you  use  them  ?  Do 
mne  the  worhl  suspects  you  of  some 
f  not  doinv'  your  duty  ?  if  doI,  it  must 
•  cfinNciousni  5!i  of  iutendinj^  some  du- 
bat  mukec  you  iluis  catt  in  liefore- 
li  i^oardv  to  your  repulation«  Genuine 
y  mid  pure  virtue  are  ever  devoid  of 
nrnani(^iu».  Every  extraordinary  de- 
It  «iide  spt^ech,  hint,  tone  of  voice,  look 

tiUiou  wdl  furnish  matter  of  animad- 
mnd  the  u»er  finally  dupet^  himself  and 
I  the  Nttcnfice  of  bis  own  artifice  ;  what* 
>ming  convu*tjou  and  rhetorical  ap- 
ia  ar({umcnl  or  oration  may  carry  with 
the  lime.  IVuih  i«iahil«  the  ed^e  of 
tial  Atid  popular  disc(itL>jion,  but  so- 
tif  iieUher ;  lor  it  <*uonot  alter  the  na- 
ltiint;»,  nlthi>iii;h  it  will  disi^uitfe  their 
Bee  tor  a  white.  Time  wdl  always 
later  *letecl  the  adultery,      *  Opt- 

cominenta  delet  dieSi  OftturK  judicia 

18  to  lie  ohvrrved  tbnl  to  the  f]UO(ation 
Peru  **  E4J0  hoc  uniino,"  rScr.   Mr,  Set- 
1  in   hi^  copy  of  jiurrow  had  written 
ihefollowuiV  jMSiajfe  i>f  Switl.     (Hee 
'56«'3,  8vo  rditioo  of  181'^,) 

Id  wdl  never  allow  any  man  fhal 

which  be  gives  to  himieff  by  openly 

ir  it  to  thoae  uith  wtioni   he  conver- 

it»  learnin^^,  vahhir,  nnpiitiniiioce^  the 

if  good  uien»  will  be  known  ahhou^Hi 

M  endeavour  to  conceal  ih»m,  however 

y  paaa  unrewarded  ;  but   I  doubt  our 

assertiona  upon  any  of  these  pointa, 

very  httie  «Viid,  except  iu  tempt m|f 

ri  to  judge  directly  contrary  to  what 


itancet  not  untike,  **  £}^  hoc  inimo  semp«r 
fui,  ut  invidiam  rirtute  (lartara,  gloria m,  baud 
infamiiim,  putarem." 

The  thrratii  go  IVirtber  than  abuse:  per- 
gonal violence  U  denounced.  1  do  not  behere 
it :  it  is  not  the  genius  of  the  wor-il  men  of 
this  coonlryt  in  the  wor«t  of  times.  But  I 
have  set  my  mind  at  rest.  The  U»t  end  that 
can  hiippen  to  any  man,  uever  coiitea  too  aoon^ 
if  he  tiill*  in  support  of  the  law  and  liberty  of 
liis  country  (for,  liberty  it  nynonymous  to  law 
and  government.)  8uch  a  tihock,  loo,  oiigbt 
be  productive  of  public  good  ;  it  miji^ht  awake 
the  better  part  of  the  kingdom  out  of  that 
te^barg-y  which  seems  to  hnve  benumbed  thetii  ; 
and  bring  the  mad  part  hark  to  their  senses,  a« 
mvn  intoxicated  are  aometiuies  stunned  iolo 
»ohriely. 

Once  fur  all,  let  it  be  understood,  *  that  do 
endeavoors  of  i\\h  kind  will  influence  any  man 
whoaipiewcut  »it«  here^^  If  they  had  any 
efft'ct^  it  would  be  contrary  to  their  intent : 
leaning  against  their  impreswiout  might  give  a 
bian  the  other  way.  But  1  hope,  and  1  know, 
that  I  hnve  tortitntle  enough  to  resisit  even  ttiuC 
weakness.  No  libels,  do  threats,  nothing  that 
bos  happened,  nothing  that  can  happen,  will 
\veigh  a  feather  auuinst  allowing  the  defendantp 
upon  this  and  eiery  other  question,  not  o<ily 
the  whole  adviiiitage  he  is  entitled  to  from  aul>* 
stantial  law  and  justice;  but  every  beitefit 
from  the  most  crilical  nicety  of  formi  which 
any  other  defendant  could  claim  under  the  tike 
oH|ection.  The  only  eii'ecl  1  feel,  is  an  anxiety 
to  foe  able  to  explain  the  grounds  upon  which 
we  proceed  ;  so  aa  to  satisfy  all  mankind, 
f  that  a  flaw  of  form  given  way  to  in  this  ca&e, 
could  not  have  been  got  over  in  any  other." 

From  the  precedents  we  have  seen,  it  ap« 
pears,  that  a  series  of  judgments  have  requiretf 
a  technical  form  of  words,  in  the  descnplioii 
of  the  county-court  at  which  an  outlaw  is  ex- 
acted ;  that  alU'r  the  words  *  at  my  county* 
court,'  should  l>e  added  the  name  of  thft 
county  I  and  al\er  tbe  word  *  heldy^  Khoutd  b« 

«diled — *  for  the  county  of  ^ (naming 

it).     Whereas  here»  the  sherifl'  say"*  *  at  my  I 
cnuuly  court,'  without  adding — *  of  Middle- 
sex :''and  he  says — »  held  at  tbe  bouse^*  &c*  J 
without  adding  the  woni^  »  fur  the  county  of] 
Middlesex/  after  the  word  *  b*^ld/ 

As  to  the  tirst  expression,  the  cases  begio  u  j 
far  bark  as  the  seventh  of  James  the  fijtt.     Am 
10  the  second  expreniou,  tbey  begili  about  Ibi 
I8tb  of  Charlei  the  *ecotid. 

If  we  are   cmniKllcd  by  authority  to  kokl 
upon  either  cxpre^Mioo   a»  technically  tiecea- 
snrv,  it  i!i  KufBcient  upon Uiis occnifioo ;  because, 
here,  br»th  are  wanting, 

if  an  outlawry  be  returned  in  this  manner-«J 
^  Ad  com.  menui  tent,  apud  CJicestriain  In  co->l 
*  mitaiu  Sussex,  fki:.*  it  is  erroneous;  becaus«| 
it  is  not  KAid  *  ad  eoto,  mcum  Sussex  teutuu 
'  Sec.''     Aldur  was  out1awe«l  for  murder  ; 

*    P.   T  Jac.  2.     lio.  Abr,  eoa,  Whilinf'^" 
Case. 


1116]         i^lO  GEORGE  HI. 

it  WM  mwtA  foi  error,  thai  the  ■heriff  re- 
turned <  id  oom.  meam  tentiini  ipod  D.  in  the 

*  county  of  Northumberland,'  and  did  not  my^ 

*  ad  com.  meum  Northambrtee  tentum,  Ike :' 
•ad  this  waa  holden  to  be  error.*  Among  the 
errors  for  which,  the  reporter  says,  the  out- 
lawiT  was  refersed,  the  second  is — not  said 

*  SuffolcitB,'  after  '  com.  meum:'  and  this,  he 
•ays,  had  been  a  common  exception. f  Three 
copies  have  been  left  with  us,  from  the  re- 
cords: and  they  are^*ad  com.  meum^  Middle- 

*  sex  tent.  &c. ;'  agfreeably  to  the  judgments  1 
have  mentioned.  Winnington  assigned  error 
of  outlawry  :  and  one,  said  to  be  allowed,  was, 

*  that  the  court  is  said  to  be  held  at  the  county 
of  Hereford ;'  and  doth  not  say  *  for  the  county. *|', 
An  outlawry  was  reversed,  because  said  *  ad 

*  com.  meum,  &c.'  and  not  said  *  pro  comitatn.'§ 
This  tecmi  several  outlawries  were  reversed, 
for  want  of  *  pro  com.'  or  *  nee  eorom  aliquis,' 
or  *  per  judicium  caronatorum.'**  One  who 
was  outlawed  for  the  murder  of  sir  Edmondbury 
Godfrey,  now  brought  a  writ  of  error  in  his 
hand  to  the  bar ;  praying  <  that  it  might  be 
read  and  allowed.'  The  oudawry  was  re- 
irersed.  Among  the  errors  assififned,  one 
«ras,  *  that  it  did  not  ap|iear  the  Court  was 
held  pro  comitato.'  The  other  was  clearly  a 
latal  objeotion.ft  After  stating  the  case,  sir 
Bartholomew  Shower  says-—*  she  brings  a  writ 
of  error,  to  reverse  the  outlawry :  and  3ie  error 
which  I  assigned  ore  tenus^  was  the  usual  fault, 
in  not  saying  the  county-court  was  held  <pro 

*  oomitatu.'  The  outlawry  was  reversed.^):  This 
is  •  very  strong  authority,  to  shew  that  in  the 
Uurd  ofW.  andM.  it  was  settled  *  that  the 

*  words  *  pro  comitatu'  were  technically  neees- 
cefsary.'  A  record  of  an  outlawry  has  been 
found,  agreeable  to  this  form,  established  as 
necessary ;  and  says  '  ad  com.  meum.  tent. 

*  pro  com.     Middlesex,   apud    le   Cheshire - 

*  cheese  in  Gray's-inn  lane  in  com.  prsedict.'H  || 

No  case,  report,  or  record  has  been  found, 
since  the  third  of  queen  Aiine,  which  can  be  of 
•ny  use,  either  way,  upon  this  point,  or  any  of 
the  errors  assigned. 

The  authorities  I  have  stated  stand  to  this  day 
uncontradicted.  They  are  many;  and  have 
prevailed  above  a  century.  I  think,  they  begun 
•gamst  law  and  reason.    The  former  authori- 

«  Mich.  16  Jac.  Alder's  Case,  3  Roll's  Re- 
ports  53. 

t  Tr.  13  Gar.  3.  1  Keble  50,  51,  Rex  v.  8i- 
clemore. 

t  Rex  V.  Hallet,  H.  S9, 33  Car.  S,  rotulo  16. 
Rex  9.  Preston,  H.  83, 33  Car.  3,  rotulo  17.  Rex 
o.  Vernatt.  H.  1,  3  J.  3,  rotoloQ. 

I|  M.  ISCar.  3.  RexD.Tufton,  3Keblel38. 

^  H.  32,  S3  Car.  3.  1  Vent.  108,  anonymous. 

••  E.  3 1  Car.  2.     3  Shower  60. 

ft  H.  IJ.  3.  3  Mod.  89,  anonymous:  (S. 
C.  as  Rex  o.  Vernatt,  left  with  m  from  the  re- 
cord.) 

tt  M.  3  W.  and  M.  1  Show.  309.  Rez  v. 
Lady  Ooeby  alias  Truder. 

U II  Tr.  9  W.  3, 1697.  rotulo  1  Rez  v.  BeU. 


Cus€  ^Jukn  WUhff  mq.  [1110 

ties  were  otherwise:  the  preoedentio  Dstea 
is  otherwise.  There  is  no  reason  for  reqnripg 
these  words:  there  is  sufficient  certaiotyy  wilh- 
oot  them.  It  is  impossible  to  doubt,  ami  this 
record,  but  that  the  coonty-ooari  at  wbioh  the 
defendant  was  exacted,  was  the  court  of  and 
held  for  the  county  of  Middlesex.  But,  this  is 
•  criminal  case,  highly  penal.  Outlaws  have 
had  the  benefit  of  this  exception,  for  a  gresl 
length  of  time.  Can  we  refuse  it  to  the  dmh 
dantP  We  cannot:  though  I  am  clearly sf 
opinion,  <  there  was  not  a  colour  orknaaUvi 
to  hold  these  words  to  be  necessary.'  The  so- 
jection  to  the  blunder  between  the  peace  *  sf 
the  now,'  and  <  the*  Ute  kin^,'  after  convie- 
tion,  has  not  much  more  solidity  in  it :  yet  the 
House  of  Lords  thought  themselves  botrad  ly 
precedents.  And  so  must  we,  hmA  the  flaw 
been  discovered  before  jndg^sneoL  I  caaMt 
say,  <  that  it  does  not  appear  upon  thie  riceid^ 
that  the  Court  was  of  and  held  for  the  coaal^ 
of  Middlesex :'  because  I  am  dearly  of  epi> 
nion,  « tliat,  most  manifestly,  it  doee.'  But  1 
can  say,  that  a  series  of  authorities,  uuisepeach- 
ed  and  uncontradicted,  from  the  Ttfa  of  Jsimb 
1,  as  to  one  expression,  and  from  the  18lb  sf 
Charles  8,  as  to  the  other,  have  said  *  aocb 
words  are  formally  necessary :'  I  can  say  ihrt 
such  authority,  though  begun  without  law, 
reason  or  common  sense,  ought  to  ttvail  the 
defendant.  It  would  be  dangerous,  to  say  Ihst 
any  exception  allowed  so  long,  should  uow  It 
over-ruled.  The  exception  certainly  wouMitf 
have  prevailed,  had  it  been  opyosM  at  firrt: 
but,  before  the  third  of  queen  Anne,  there  bsaff 
DO  opposition  after  a  writ  of  error  was  giMitsj 
the  Court  conshlered  the  crown  as 
to  the  reversal  upon  any  pretenoe, 
soever.  Though  that  is  not  the  case  now,  the 
necessity  of  the  form  of  words  must  mm,  be 
canvassed  ;  since  it  has  been  so  often  adjodgid 
necessary.  The  officers  of  the  crown  are  ia 
fault,  for  not  attending  to  the  form  prescribed, 
and  copying  the  precedent  of  the  King  «, 
Bell. 

There  can  be  no  mischief  or  incertainty  ariR 
from  this  determination:  because,  it  beinf 
once  known  ^  what  form  of  words  is  necessary,' 
it  is  easy  to  follow  it.  But  great  suspicion  sm 
incertainty  must  follow,  from  this  court's  al- 
lowing a  formal  exception  one  day,  and  dM* 
lowing  it  in  another. 

I  beg  to  be  understood,  that  I  ground  ay 
opinion  singly  upon  the  authority  %A'  the  cas« 
adjudged ;  which,  as  they  are  on  the  favocm- 
ble  side,  in  a  criminal  case  highly  peoal,  I 
think  ought  not  to  be  departed  from :  and 
therefore  I  am  Iwund  to  say  that,  for  want  sf 
these  technical  words,  the  outlawry  ought  » 
be  reversed. 

The  other  three  judges  spoke  serisAsi.  Boi; 
as  their  arguments  tended  to  support  and  iih» 
trate  the  same  doctrine  which  bis  lordship  hsi 
laid  down;  and  as  they  did  not  diier,  in  Mf 


*  Vide  Lookup's  Com. 


1 17]  on  ftoo  Informatimifir  Libeli* 

trotn  the  opiniofi  given  by  hit  lordthtp ;  I 
iutt,  forihes&ke  ot  br«vUy,  reportiog^  parlicu- 
iHv  wliai  Ibey  stid. 
A  rule  W09  mccrtrdingly  made  (in  etch  cause) 
Thai  tli€  outlawry  be  reveraed*'* 

On  Ui^same  8tl)  of  Junt;  17^8, 

Rules  i¥«re  made,  for  the  prosecutor  to  shew 
ioae  (upon  Tuesday  then  next)  why  the  judgp- 
pant  should  not  be  arrested  ;  and  why  the  rer- 
tet  sUould  not  be  set  aside. 
And  alio  a  rule  for  oow  remanding  the  de* 
t  tt>  the  custody  of  the  narahal,  and  for 
him  toio  court  again  opon  Tuesday 


A.  D.  1763—1770. 


[uia 


^fa 


ji€!i!MMrdiogly,  on  Tuesday  the  t4(h  of  Juna 
768t  the  two  following  points  were  argued, 
ery  alrcnuously  aad  very  copiously  oq  both 
idea:  namely,  ^  whether  toe  iuformatiooa 
ciuid  be  e X hi bi ted  by  the  solicitor- (general ;' 
^d  '  wtiether  the  ameudmeiit  cotild  be  made 
by  a  single  jud|;e  out  of  court,  in  the  mauncr 
before  spccitipJ.^  The  former  was  objected 
>«  as  a  ground  for  arresting  tbe  jadgmetit : 
|ia  latter,  as  a  ground  for  a  nc^w  trud. 

L^fd  MansfiM,  as  to  the  motion  in  arrest  of 
|f  adhered  lo  the  opinion  be  had  he- 

I  i»  *  that  Oie  infonnalions  were  well 

I*  cxiiitjiicil  by  the  soliciior- general.* 
I    As  lo  the  motion  for  a  new  trial  on  account 
bf  the  aroeurlrneot,  he  declared  his  satisfaction 
m  the  moltoii*i»  liaring  tieen  made,  and  the 
paHcr  so  fully  discusKt^d  aud  underslood. 

Matters  of  practice,  he  obBer?eit,  are  not  to 
to  ItQOwn  tiam  b(»oks.  What  passes  at  a 
idg^a  abambtrs  is  matter  of  trad  t  lion :  it  rests 
I  manory.  In  cases  of  this  kindi  judges 
biist  inquire  of  their  officers.  Tliia  is  doue  in 
tourt,  evrry  day,  %vhen  the  practice  is  di*- 
-jubied.  It  is  in  its  nature  oHScial. 
ti  ure  better  acquainted  with  it,  than 
ges«  For  his  own  part,  neither  his 
ion,  nor  his  walk  in  VUq  before  be  canoe 
Hiis  court,  ever  led  !iim  into  any  knowledge 
tli€  practice  of  orders  umde  by  jucfges  in  the 
'^  ,The  making  this  order  for  the  amend- 
red  to  him  to  be  right,  and  to  be  a 
course^.  It  came  to  him  as  a  matter 
r  Cttorse,  and  recommended  a^s  surh  frum  a 
kntlemari  of  great  experience,  who  (he  knew] 
rould  as  soon  ha^e  cut  off  his  right  band,  as 
ita  deceived  him  by  representing  this  as  a 
iiti|f  of  course,  when  it  was  not  so.  Accord- 
k^y,  be  issued  a  summons,  *  to  shew  cuuse 
why  the  amendment  should  not  be  made.*  A 
lomioDs  always  issues,  before  a  judge  makes 

•  For  the  effect  of  rereraal  of  outlawry  and 
"t  th*  diBiinciion  between  an  outlawry  at  the 
lit  of  a  subject,  and  one  in  the  ease  of  the 
iMVgi«  aee  the  Case  nf  8t,  John^«  Ci/ltege  r. 
IcircvU,  T  Term  Rep.  959.  That  the  greatest 
trittsieas  is  required  in  ;  -  '  jts  of  out- 
wry,  a»e  lu  lleae  i?.  Ah  u.  aa  fJ.  3, 

ITaroi  Rep.  toa,  and  Uur,  .^ ..t,  of  C«  13. 
in  deed. 


an  <>rder.  A  summons  thereforci  went  out,  of 
course.  Upon  the  attendance,  his  lordship 
asked  Mr.  Hn^jhes  ^an  old  and  experienced 
ofBcer),  the  delendant^s  clerk  in  court,  *  whe« 

*  ther  there  was  any  doubt  but  that  tlus  was 

*  amendable.'  He,  very  rightly,  and  as  was 
bis  duty,  admitted  *  that  it  was  amendable^ 
'  and  that  he  could  not  say  otherwise/  Hta 
lordship  then  took  down  a  book  in  which  wera 
entered  some  cases  where  informations  were 
amended  by  a  judge^s  order,  just  before  trial ; 
and  afVer  reading  one  or  two,  Mr.  Philips,  the 
defendant's  attoruey,  desired  biru  not  to  give 
himself  any  further  trouble.     Mr.  Philips  said 


indeed,  *  that  he  could  not  consent  to  it.'  But 
he  did  not  object  lo  it,  nor  contradict  it;  nor 
was  it  objected  to,  at  the  trial.  The  counsel 
saw  that  there  could  be  no  objection  made  ta 
the  order. 

Mr.  Justice  Blackslone,  in  his  third  volume,* 
girea  the  rise  and  history  of  amenduieota^ 
vary  shortlv  and  in  few  words.  He  shews  how 
it  siood,  before  the  reign  of  Edward  1 ,  in  whose 
time,  (probably  about  his  15th  year)  Britton'a 
treatise  was  published,  in  the  king's  name  and 
by  the  king's  authority  :  which  seems  intended 
to  give  a  check  to  the  unwarrantable  practices 
of  some  judges  who  had  made  false  entries  on 
the  rolls,  to  cover  their  own  misbehaviuitr.  And 
abaut  the  IBth  year  of  his  reign,  Blmo«t  alt 
the  judges,  even  the  most  nbh  and  upright, 
were  prosecuted  by  him  ;  and  smue  of  them 
very  heavily  fined  ;  and  one  of  the  causes  as* 
signed  for  it,  was  erasing  and  alLenog  records: 
particularly,  sir  Ua^ph  Hengham  was  fined 
BOO  marks  at  least,  (some  say  7,000)  for  alter- 
ing, out  of  mere  compassion,  a  tine  set  upon  a 
very  poor  man,  from  13f.  4*?.  to  6i.  Bd,  Upon 
this,  the  judges  grew  so  strict,  that  at\er 
inrollment  they  would  not  amend  their  judg- 
ments, even  to  set  them  light.  They  were  so 
alarmed  by  this  severity,  that  through  a  fear 
of  being  said  to  do  wrong,  they  hesitated  at 
doing  that  which  was  right ;  and  because  cri- 
mioM  and  clandestine  alterations,  to  makaa 
record  speak  a  falsity,  were  forbidden,  they 
conceived  that  they  might  not  judicial ly  and 
publicly  amend  it,  to  make  it  agreeable  to 
truth.  But  declarations  and  pleas  might  al* 
ways  be  amended  at  any  time :  it  was  only  itt- 
rollmi^nts  that  were  prohibited  by  Britton. 
There  never  was  any  distinction  (as  to  amend* 
ments  at  the  common  law)  letwee-n  criminal 
and  civil  caases  ;  that  is,  before  the  8  H.  6,  c. 
Vi^  of  Jeofails,  The  judges  adhered  to  sucti 
strictness,  that  justice  ivas  entangled  in  thenel 
of  form.  11»e  legisloturc  was  therctbre  forcati 
lointerpoi^;  and  no  le^s  than  twelve  slatutea 
of  amendment  were  made,  to  remedy  these  op* 
probriouv  niceties. 

The  fundamental  queation  here  is,  *•  whether 

*  an  information  may  be  amended,  at  commoa 
'law,  at  the  desire  of  the  crown,  after  plea 

•  plfaded.' 

Numberless  preeedenta  are  produeetl,  froa» 

*  Book  d»  c.  S5,  p.  40?. 


1119]         4-^10  GEORGE  ID. 

the  time  of  ^aneen  Elizabeth,  and  all  through 
the  rei((D>  or  James  1,  and  Cbarles  1,  and 
many  side- bar  rules,  wbich  shew  that  it  was  of 
course :  for,  if  it  were  not  of  course,  it  would 
ha?e  been  moTed  in  court,  as  every  thing  not 
of  course  is. 

8o  long  ago  as  6  W.  S,  lord  chief  justice  Holt 
treats  it  as  a  known  thing,  a  thing  of  course. 
1  Saik.  47,  the  King  against  Harris.  A  mo- 
tion was  made,  to  amend  an  information  for 
perjury;  and  opposed,  liecause  tbe  defendant 
Jiad  pleaded.  £t  per  Holt  chief  justice  *as 
to  amendment  after  plea  pleaded,  there  is  no 
great  matter  in  that  After  a  record  has  been 
sealed  up,  1  ha?e  known  it  amended,  e?en  just 
as  it  was  going  to  be  tried.'  In  12  W.  3,*  sir 
Bartholomew  Shower  mo?ed  to  amend  an  in- 
formation of  forgery,  in  ten  places :  and, 
though  opposed,  the  motion  was  granted,  be- 
oauseitmade  no  alteration  of  the  fact;  and 
that,  without  costs  or  imparlance.  Tn  the  case 
of  the  King  against  Charlesworth,  2  Stra.  871, 
the  information  was  for  forging  a  warrant  of 
attorney  to  acknowledge  satisfaction  upon  a 
judgment  of  Easter  term  :  and,  after  issue 
joined,  the  record  appearing  to  be  of  Hilary 
term,  the  information  was  amended,  without 
costs  (the  prosecutor  having  been  admitted  a 
puper,)  and  without  givinpr  the  defendant 
leave  to  plead  de  novo.  And  Hil.  10  Anne,  the 
Queen  against  Simmonds  was  there  cited : 
where  the  title  of  an  act  set  forth  in  an  infor- 
mation was  amended.  And  there  is  no  autho- 
rity to  the  contrary.  There  can  be  no  doubt 
therefore  of  its  being  amendable;  upon  the 
authority  of  a  series  of  precedents,  without 
any  obisctioo,  and  all  these  printed  cases  un- 
contradicted. 

And  why  should  it  not  be  amended  ?  If  it 
had  not  been  amended,  the  attorney -general 
would  have  dropped  this  information,  if  he 
thought  there  was  a  slip  in  it  ;  and  have 
brought  another.  And  this  would  have  been 
more  inconvenient  to  the  defendant,  and  have 
harrassed  him  more  :  he  would  have  no  benefit, 
and  more  vexatiou.  This  amendment  avoids 
delays,  and  saves  expences  :  it  saves  the  de- 
fendant the  expence  of  bringing  his  witnesses 
un  again.  Tbe  attornpy-i|:eneral  pays  no  costs. 
The  defendant  never  asked  leave  to  plead  again, 
or  to  have  the  trial  put  off:  nor  was  there  any 
cause  for  it.  The  defence  was  not  at  all  varied. 
The  substance  of  the  charge  was  not  at  all  al- 
tered :  it  remained  the  very  same.  The  true 
merits  of  the  cause  stood  the  very  same.  There 
is  no  difference  at  all,  but  that  the  prosecutor 
roust  prove  more.  The  nature  of  the  pa()er 
was  the  same:  every  objection  was  equally 
open  to  the  defendant,  and  he  had  the  further 
advantage  of  any  verbal  slip  in  setting  out  the 
libel  upon  the  record. 

But  it  is  objected,  *  that  it  could  not  be  done 
out  of  court.' 

Answer.  It  might  be  done  by  the  Court :  it 
might  be  done  at  the  side- bar.    And  a  great 

•  iSalk.  50,anon. 


Case  of  John  WUteetf  esq. 


[1120 


deal  that  may  be  done  in  court,  b  done  by 
judges  at  chambers,  in  term-time :  in  Tacatioo, 
a  great  deal  more  is  done  by  them  it  cham- 
bers; because  it  can  be  done  no  where  ebe. 
Most  of  the  precedents  of  amendmenta  before 
trial  are  in  the  vacation.  Liord  chief  justies 
Lee  amended  a  record  of  an  informatioa,  sent 
up  from  York;  the  mistake  being  there  disea- 
rered  during  the  assizes:  and  the  reconi  it 
amended  was  returned,  and  immediately  triad. 
1  am  obliged  to  i  gentleman  at  the  bar,  wbi 
sent  me  a  case  of  tbe  King  against  King,  i9lh 
of  March  1746,  where  Mr.  Justice  Foster  or- 
dered the  word  '  division'  to  be  struck  out,  aa4 

*  parish'  to  be  inserted  ;  though  it  was  strem- 
ously  opposed,  and  the  defendant  must  ban 
been  acquitted,  if  it  bad  stood  unamended.  Mr. 
Justice  Foster  had  applied  himself  particobriy 
to  the  crown  law;  was  a  strict  adherer  to  Icpl 
forms ;  and  had  more  eaqierience  in  trasT 
proper  to  be  done  out  of  court,  tbio  any  \ 
judge. 

<  Whether  it  was  a  necessary  amc 
or  not,'  I  give  no  opinion,  nor  form  loj. 

There  is  a  great  difference  between 
ing  indictments,  and  amending  inforroalioBii 
Indictments  are  found  upon  tbe  oaths  of  a  jwj; 
and  ought  only  to  be  amended  by  themselva: 
but  informations  are  as  declarations  in  the 
king's  suit.  An  officer  of  tbe  crown  has  the 
ri^bt  of  framing  them  originally ;  and  may, 
with  leave,  amend,  in  like  manner  as  any  plais- 
tiff  may  do.  If  the  amendment  can  give  oeci- 
sion  to  a  new  defence,  the  defendant  has  kaffi 
to  change  hia  plea :  if  it  can  make  no  allenlin 
as  to  the  defence,  he  don't  want  it.  lothii 
case,  the  defendant  could  not  possibly  plead 
any  other  plea. 

1  am  fully  satisfied,  that  none  of  tbe  defa- 
dant's  counsel  or  agents  ever  thought  tbcra 
was  the  least  colour  of  objection  to  the  oriff 
for  amendment :  but,  long  after  the  trial,  it 
occurred  to  others,  that  by  calling  it  *  an  alte- 
ration of  the  record,'  instead  of  *  an  order ta 
amend  the  information,'  they  who  derive  all 
their  knowledge  and  law  from  libels  in  tbe 
news-pa(>ers,  might  be  bewildered  and  mialad. 

Mr.  Justice  Yate$  took  notice  of  a  difference 
wbich  there  seemed  to  him  to  be,  between  tbe 
attorney-i^eneral  and  tbe  master  of  the  Crotra* 
ofBce  :  the  attorney -general  is  the  officer  af 
the  king  ;  the  master  of  the  Crown -office,  tbe 
officer  of  the  public.  Informations  exhibited 
by  the  king^s  attorney -general  are  considered 
as  the  king's  own  proKecutions,  and  are  called 

*  declarations  for  the  kin^  :*  therefore  no  coril 
are  paid  upon  them.  In  the  other  infonaa- 
tions,  costs  are  often  payable. 

He  said,  he  was  greatly  confirmed  in  bil 
opinion,  upon  the  ca>e  now  before  the  Court, 
and  had  the  greater  reason  lo  think  il  a  rifht 
one,  as  Ihn  brother  Giyun  had  not,  by  all  bil 
arguments,  been  able  to  shake  it. 

He  agreed  that  the  statute  power  of  anicid> 
ing  does  not  extend  to  criminal  proceedia^: 
but  in  common  law  auendjoeots,  there  ji  M 


1121] 


OH  tXBO  Information* Jiir  Lihelt. 


A.D.  176S— 1770. 


[1129 


diflfereDce  betweeo  criminal  anil  civil  proceed- 
ings. And  he  cited,  and  repeated  (in  part)  the 
cane  of  die  Queen  against  Tutchin,  in  6  M04I. 
S68  to  287.*  He  citnl  also,  to  the  same  pur- 
port, the  case  of  Bondfield  qui  foni,  6cc.  v,  Mil- 
ner,  in  this  court,  M.  1  G.  3.  ' 

The  question  therefore  turns  upon  what  is 
•  common- law  amendment. 

Many  cases  have  been  cited,  of  common-law 


in  Tacation.  The  defendant  m:{?lit  have  d«« 
ctined  goinj^  to  trial,  and  miu^lit  h:ivc  moved^ 
in  the  next  term,  '  to  set  aside  liie  vertlict.* 
But  he  ac4|uiesced,  and  went  to  trial. 

The  materiality  of  this  aiiiLMidment  is  not  in 
any  degree  equal  to  many  nf  those  that  were 
made  in  the  cases  that  have  been  cited.  The 
defence  was,  indeed,  made  easier  thereby  :  ft»r, 
the  word  *  tenor'  imports  a  literal  copy.*     It 


mmendments.  But  there  is  one,  which  has  ■  could  not  vary  the  nature  of  the  del'euee :  the 
not  been  mentione<l :  it  is  the  Kiner  aflfainst ;  proof  lay  upon  the  crown.  If  the  defendant 
Goflfe,  in  1  Lev.  189.     It  was  moved  to  amend  |  had  hail  any  objection  to  the  alteration,  he 


an  information  of  |)eijury.  And  it  was  ruled, 
that  they  should  fj;ive  notice  of  the  thinf^s  to 
be  amende<l,  to  the  defendant ;  and  he  to  shew 
cause  why  it  should  not  be  amended :  for,  the 
Court  said,  *  it  mififht  be  amended.*  The 
case  of  the  King  a^inst  Charles  worth  was  a 
▼ery  strong  one :  for,  the  defendant  must  have 
been  acouitted ;  and  yet  that  am^dment  was 
made  without  payment  of  costs,  and  without 
liberty  to  plead  de  novo. 

Indictments,  being  upon  oath,  cannot  be 
anended.f  l)ut  informations  may  be  amended  ; 
because  they    are  declarations  for  the  king, 

5  Viner  394',  title  Amendment  and  Jeofails, 
pi.  13. 18  Mod.  229.  The  King  against  Lewis, 

6  Mod.  281.  1  Stra.  185,  Hex  v.  Nixon. 

It  it  dear,  therefore,  that  informations  may 
be  amended,  at  common -law. 

As  to  their  lieing;  amended  by  a  judge  at 
chambets — it  is,  most  certainly,  the  practice. 
JVbn  constat  *  ^lien  it  begun  :'  but  it  seems  to 
have  been  exercised  time  out  of  mind;  and 
thatlhe  business  of  the  Court  could  not  he  done 
without  it.  The  business  done  at  chambers  is 
the  most  irksome  part  of  the  oiTice  of  a  judge : 
but  it  is  greatly  fur  the  henelit  of  the  subject, 
and  lends  to  the  advancement  and  expedition  of 
justice.  It  arises  from  the  overflowing  of  the 
business  of  the  Court:  which  cannot  be  all 
tjansacted  in  court.  The  order  of  a  judge  is 
■ubject  to  an  appe:il  to  the  Court :  but  if  ac- 

2'uiesced  under,  it  is  as  valid  as  auy  act  of  the 
*ourt.  It  is  common,  to  apply  to  the  Conrt, 
*  to  discharge  a  judi^f 'g  order  :'  but  the  very 
course  of  a|»plying  to  the  Court,  *  to  discharge 
tlie  order  of  a  jmT^rtf^  made  at  chambers,'  sup- 
ports the  proceeding;  and  shews  that  the  order 
M  valiil  as  to  its  efi'cct,  if  it  be  not  discharged. 
Indeed,  if  it  becomes  necessary  to  inforce  it  by 
attachment,  there  must  be  a  motion  *  to  make 
it  a  rule  of  Court.'  The  validity  of  a  judge's 
order  can  be  impeached  only  two  ways :  either 
by  appealing  to  tlu:  Court,  to  set  it  aside  ;  or,  if 
■uule  in  vacation,  by  applying  in  the  next 
term,  to  set  aside  the  proceedings  that  have 
been  bad  under  it.     Now,  this  order  was  made 

*  Vide  6  Mod.  274,  282,  283.  8ee  it  in  this 
Collection,  vol  14,  p.  1095. 

f  Cootr.  Vin.  Amendment,  (T.  a.)  1.  3, 
wbich  is  not  law,  though  small  mistakes  in  the 
tBtriea  of  proceedings  on  indictments  are 
OBendable,  Com.  Dig.  title  Amendment,  2 
Car.  I. 

VOL.  XIX. 


should  have  made  no  defence  at  the  trial :  that 
would  have  been  a  consistent  conduct.  Hut 
as  he  did  make  a  defence,  he  has  acquiesced  in 
it.  And  yet,  if  he  had  made  no  defence  at  the 
trial,  the  verdict  nevertheless  would  have  stood : 
for,  it  could  not  have  been  set  aside,  unless  the 
order  was  a  bad  one ;  which  it  now  clearly  ap- 
pears, *  that  it  was  uot.'  Therefore  it  ought  to 
be  supported  by  the  Court. 

This  is  a  motion  tor  a  new  trial,  af\er  a  seriea 
of  proceedings  upon  it.  The  Court  have  indeed 
spontaneously  relaxeil  their  own  rule,  in  order 
to  give  an  opportunity  of  having  this  matter 
fully  and  fairly  argued  and  considered  :  which 
I  am  glail  of;  but  I  ho£ie,  it  will  not  be  made 
a  pre<^ent. 

Mr.  Justice  Aston.'^l  entirely  concur  with 
my  lord  and  my  brother  Yates,  in  discharging 
these  rules.  I  think,  the  importance  of  this 
case  does  not  consist  in  the  nature  of  it ;  but  in 
the  noise  and  clamour  that  it  has  occasioned, 
and  the  misrepresentations  that  have  been 
thrown  out  to  the  public,  of  the  conduct  of  the 
judges  in  the  course  of  the  proceedings  in  it ; 
who  have  been  Tery  unjustly  charged  with 
being  induced  to  it  by  partial  motives. 

In  the  case  of  the  U,ueen  and  Norton,  reported 
in  lord  rurlescuc's  Kc|)orts  232,  the  Court 
agreed  that  it  is  a  general  rule,  *  to  amend  in- 
formations at  any  time,  even  just  before  trial :' 
but  then  it  must  not  make  the  information  dif- 
ferent. And,  to  be  sure,  it  ought  not :  for,  it 
would  make  a  different  defence,  lu  the  caso 
of  Hush  and  Seymour,  10  Mod.  H8,  it  is  said, 
*  that  statutes  of  amendment  extend  only  ro 
pleadings  of  record  ;  and  that  ph>adings,  i«hilo 
m  paner,  are  amendable  by  common-law  ;  and 
that  it  is  a  motion  that  the  Court  cannot  re- 
fuse: but  they  tuay  refuse  it,  if  the  party  de- 
siring it  refuse  to  pay  costs,  or  the  Hmeiidinent 
desired  should  amount  to  a  new  plea.'  And  as 
to  the  practice,  it  was  almost  of  course,  where 
the  amendment  made  no  alteration  in  the  de- 
fence. Where  it  altered  the  defence,  then  it 
was  upon  terms.  There  is  nothing  that  I  ever 
looketl  upon  as  so  plain. 

Then  as  to  doing  it  at  chamliers — the  prac- 
tice of  the  Court  has  been  always  so.  The 
business  done  at  chambers  is  become  an  im- 
mense load  upon  the  judges,  and  is  exceedingly 
troublesome  to  them  :  but  it  is  the  practice,  the 
custom  of  the  Court;  and  therefore,  the  law  of 


4C 


•  See  Salk.  C61. 


1123  J 


4^—10  GEORGE  lU. 


Case  of  John  WUka^  e$j. 


[IISI 


the  land.  And  what  his  been  done  by  the 
judffe  at  chamliers,  in  the  preaent  case,  has 
been  rightly  done :  if  it  had  not,  I  should  have 
had  no  scrapie  in  overtarning^  it.  But  here  is 
not  the  least  colour  for  that :  the  order  is  justi- 
fied by  a  Tast  number  of  precedents.  I  am 
glad,  that  it  has  been  thus  fuUy  discussed  ;  to 
convince  the  ipreat  number  of  persons  that  I 
see  attending^  here,  that  judges  ha?e  acted  in 
this  case,  as  they  do  in  all  others ;  and  that 
there  is  no  sort  of  ground  for  the  scandalous  in- 
timations that  have  been  industriously  propa- 
gated, of  their  having  been  in&uenced  by 
partial  or  improper  motives. 

Mr.  Justice  Willet  concurred  in  both  points. 

He  declared  himself  to  be  clearly  of  opinion, 
that  during  the  vacancy  of  the  office  of  the 
king's  attorney -general  (which  was  the  present 
case),  the  power  of  the  attorney- general  de- 
volves upon  the  Rolicitor- general  for  the  time 
being.  Consequently,  this  information  was 
regularly  and  pro|)erly  exhibited. 

As  to  the  order  for  the  amendment  of  the  in- 
formation— he  held  it  to  be  justified  by  an  un- 
interrupted series  of  precedents,  from  the  time 
of  W.  3,  at  least.  And  as  the  order  was  right, 
he  saw  no  ground  for  the  obloquy  that  had  ^n 
thrown  upon  the  nohle  person  who  made  it. 
It  makes  no  alteration  in  the  charge :  it  makes 
no  alteration  in  the  defence.  No  objection 
was  made  to  it:  no  advantage  was  taken 
of  it.  It  was  acquiesced  in:  and  the  cause 
went  on  to  trial.  Jt  is  authorized  by  several 
cases,  and  by  a  great  number  of  precedents  for 
many  years  backward.  He  grouniled  his  opi- 
nion, he  said,  upon  the  chain  and  series  of  pre- 
cedents for  near  a  century  past.* 

He  concurred  therefore  with  his  lordship  and 
bis  brothers,  that  both  rules  be  discharged. 

The  Court  unanimously  ordered  both  these 
Rules  to  he  discharged. 

Serjeant  Glynn  thereupon  moved.  That  the 
present  proceedings  might  he  entered  upon  re- 
cord, that  the  defendant  roi^ht  have  opportu- 
nity of  applying  to  another  jurisdiction. 

The  Court  told  him,  they  could  not  go  out 
of  the  usual  and  ordinary  method  and  course  of 

*  See  ip  this  Collection,  vol.  7,  pp.  1365  et 
$eg.  a  curious  instance  of  an  alteration  in  an 
information  after  plea  pleaded,  and  apparently 
without  any  judicial  order. 

In  Steel  v.  Sovierby,  6  Term  Rep.  171,  lord 
Kenyon  said,  **  That  the  Court  has  the  power 
to  amend  as  long  as  the  proceedings  are  in 

{IB  per,  in  criminal  as  well  as  civil  proceedings, 
ias  not  been  doubted  since  the  case  of  R.  v. 
Wilkes.  That  was  nut  the  first  time  in  which 
such  an  amendment  was  made ;  and  though 
that  proceeding  was  considered  by  some  per- 
aoiis  as  influenced  by  improper  motives,  I  have 
great  reason  to  Ixflieve  that  those,  who  objected 
to  the  amendment,  thought  in  their  private 
rooms,  t4iat  there  was  no  pretence  for  tue  ob- 
jection," 


proceeding :  every  thing  mnit  be  done  in  tkii 
case,  in  the  same  manner  ea  in  all  other  pro- 
ceedings of  the  like  kind. 

Mr.  Attorney- General  then  moved  for  lord 
Mansfield's  Rc!port  of  the  evidence  ^ihe  canscs 
having  been  tried  before  his  lordship,  at  Nin 
Prius). 

Whereupon,  after  the  records  of  the  con* 
victions  had  been  read,  lord  Blansfiekl  reported 
the  evidence  in  each  cause. 

The  Attorney- General  and  the  Seijennt  made 
their  respectiTe  observations  upon  the  evidenei 
reported. 

Mr.  Wilkes  then  applied  for  the  aentence  af 
the  Court. 

The  Court  told  him,  it.wM  neoeaeary  totaha 
some  time  to  consider  of  it :  the  conatani  oeom 
is  so.  They  promised  to  do  it  without  ddaj ; 
and  to  give  Mr.  Wilkes  notice,  when  they  wen 
ready  :  but,  at  present,  they  had  not  had  tbs 
least  conference  together  about  the  pooisb- 
ment ;  nor  could  they,  without  great  impro- 
priety, have  had  any,  before  they  had  beard  all 
the  arguments. 

Serjeant  Glynn  then  hinted  at  bis  clieat'f 
being  bailed  in  the  nnean  time. 

But  the  Court  told  him,  he  knew  that  coild 
not  be. 

The  defendant  was  remanded  to  the  custody 
of  the  Marshal. 

Friday,  June  17,  1768. 

The  Court  declared  their  intention  of  gtvi^f 
final  judgment  to-morrow ;  and  ordered  tbattas 
defendant  should  be  brought  up  accordingly. 

Saturday,  June  18. 

Mr.  Justice  Yates  (as  second  judge)  prs* 
nounced  the  sentence  of  the  Court  in  cadk 
cause;  viz. 

<  On  the  Information  for  the  North  Britoa, 

*  N*  45,  a  fine  of  600/.  and  imprisonment  for 

*  ten  calendar  months,  and  till  the  fine  be  psal: 
<  on  the  other  Information,  500/.  fine ;  and  in- 

*  prisonment  for  twelve  calendar  months  after 

*  the  expiration  of  the  former  ten ;  and  to  fiod 

*  security   for  his  good  behaviour  for  sefes 

*  years,  himself  in  1,000/.  and  two  sureties  is 
'  500/.  each ;  and  to  be  remanded,  till  the  fiie 

*  should  be  paid  and  such  security  given.* 

Mr.  Wilkes  desired,  that  his  former  imp- 
sonment  might  be  considered  in  the  puanh* 
ment  now  inflicted  upon  him. 

The  Court  assured  him  <  that  it  had  1 
and  that  they  had  fully  considered  all  < 
stances,  both  for  him  and  against  him.' 
.    Serjeant  Glynn  then  desired,  that  Mr.  Wilkfl 
might  have  the  benefit  of  a  Writ  of  Eirer  H 
the  House  of  Lords. 

Lord  Mansfield  answered,  that  this  Cs«l 
could  not  give  any  particular  directions  abarf 
that  matter:  he  must  apply  to  tlie  Attorn^ 
General.  And  he  added,  that  if  Mr.  Attfft^i 
General  would  take  his  advice,  be  a ' 
it  the  moment  it  was  applied  ^, 


on  ima  Informations  Jar  Lth^ls. 
he    cerUttily 


A.  D.  neS— 1770, 


[1126 


Ittirney-'GeinTal    siiidy 
mdt  it  irntutfJialf'iy. 

tke^   Ui^ri   ilesiired,   Oiitt  it   mii^bt  be 

Audi  n  methot),  sis  that  he  mitrhl  hiT« 

^nla^p  of  olijeclifig^  iu  the  Htjyiie  of 

_     th*-  vllvniiittns  iiimle  in  ihe  rfcwnl  by 

fftli«ifietit  III  hiH  hird!khi|i*s  omii  hciuie. 

il  Mmi^5r)il   tultl   him,  ibat  the  Court 

niter  the  luir. 

fikes  re|iUed,  thit  he  did  not  wish  the 
e  AllereO. 

iaiisliey. — It  ii  impOBsible  to  ilter  it 
>rticiitar  ciise :  the  same  oourve  must 
ill  Ibis  ctt'^e  ai  is  usttal  in  others  of 
kind>  The  deteadant*&  counsel  ivould 
m,  bift  lordship  said,  wbal  were  the 
*\tH  for  htm  to  take,  in  order  to  have 
itin  of  the  House  f>f  Lords, 
ifeodanl  was  remauded. 


itei  were  drawn  np  in  these  words: 

irdsy  next  after  fifteen  days  from  the 
te  Holy  Trinity^  in  the  eighth  year  of 
the  third.'*'  [18th  Jutie,  17'68.] 


r 


**  The  defendant  being;  brought 

here  into  court  in  custody  of  the 

Blarshal  of  the  Marsh alsea  of  this 

virtue   of  a   rule  of  this   Courts 

convicted    of    certain    trespasses 

El  and  icrrand  misdemeanors,  in  priut- 
pnhhshing  a  seditious   and  scanda- 
»  intitled    *  The  North    Briton,    N^ 
reof  lie   is  impeached^  it  is  ordered 
la  the  said  defendant,  for  his  offencea 
1^  do  pay  a  fine  to  our  sovereign  lord 
of  fire  hundred   pounds  of  lawful 
Great  Britain  :    and  it  is  further  or- 
it  he  the  said  defendant  be  imiiri$oned 
tody  of  the  said  marshal  (^at  tlie  sfiace 
kendar  months  now  next  ensuing'.    And 
ly  ordered,  that  the  said  defendant  be 
idetl  to  the  cin»tody  of  the  said  mar- 
}  by  him  kept  in  sale  custo<iy,  in  esce- 
'  the  judgment  aforesaid,  and  until  be 
e  paid   the  snid  tine.^i— On  the  mo* 
Fr.  Attorney*General. — By  the  Court* 

♦*  The  defendant  hcincf  hrougbt 

here  into  court,  in  custody  of  the 

Marvlial  of  the  I^tarsbalsea  of  this 

J  virtue  of  a  rule  of  thin  Court ;  and 

ivicted  of  certain  irespasar;!!  ccintempts 

d  misijfnifttnouni.in  printing  and  nub- 

oh^ceiie  nnd  itnpious  IdH-l,  intitled 

Swy  on   Woman/   and  otlier  inipiohs 

io  the  infoi tuition   in  that  hohiiU'  stpeci- 

uf  he  ia  iinpeiiebcd;    and  havings 

convicted  of  certain  uther  ttvapH^ses 

and    misdemeanours,   lor   piintiiisir 

iahio|iC  a  ceriuin  other   libel,   intitk-d 

h    Britou,    N**    45,*    for  which    lie 

lay  ho«'n  seiiti'nced,  «fid  ordered  by 

ly  a  fiui*  of  fivil  hundred  fMaindfr, 

~~iOiied  in  the  cuatrnly  ot  the  said 

space  of  tvn  calendar  ntontlit  ^ 

ordered  by  thia  Caurt,  that  ibe  said 


d^feodaoii  for  bis  tresp«8fe«    cootempts  and 
misdemeanoura  first  ulMivementioned,  in  print* 
intc&nd  publishing  the!>aid  ohsceue  and  inipioui^ 
libels,    do  pay  a  further  fine  to  our  »(»vert'iL''A 
lord  the  king,  of  five  hundred  pounds  of  law* 
ful  money  of   Great    Brititin ;    and  thni    tha 
aaid    defendant   lie   further  imprisoned  in  the 
custorly  of  the  said  marshAl,  lor  tht-  i^pnce  of 
tweire  calendar  months,  to  be  couiputpd  from 
andufter  the  determination  of  his  aloresaid  im- 
prisrmnient  for  priuttni^  and  pnblmliinij  the  said 
otbf  r  Jihel  tniitred  *  The  North  Briton,  N**  45/  » 
And  il  ia  Inrtber  ordere<l,  that  he  thesaolde* 
fv'iidant  shall  (^ive  security  lor  his   ^ood    be« 
haviour^  (or  the  space   of  seven  year s*  to   ba  I 
computetl  fruiu  and  afi.er  the  end  ami  ejipira* 
lion  of  the  said  twelve  calendar  months  to  bt  I 
computed   as  aforesaid;    to  wit,   himself,  th#] 
said   defendant,  in  the  sum  of  one  ihou^iind 
pounds,  with   two  sufficient  sureties,   in   fiv« } 
linndred  pounds  each.     And  it  i^  lastly  ordered, 
that  he  the  said  defendant  be  now  remanded  to 
the  custody  of  the  said  marshal,  to  be  hy  hink 
kept  ia  safe  custody,  in  execution  of  this  jud|^* 
tuent,  and  until  be  ihall  have  paid  the  s^id  fine 
and  s^iven  such  security  as  aforesaid, — On  tliB 
motion    of    Mn    Attorney-General. — By   tb« 
Court." 

Afterwards  a  writ  of  error*  was  brought,  re« 


*  As  to  the  right  to  a  writ  of  error  in  crlrnt- 
nal  cases,  see  in  this  Collecliun  the  Case  of  . 
Nairne  and  Ou^ilvie,  a.  d.  1765:   and  those  oC] 
sir  Thomas  Armstrong,  and  Ashhy  and  VVhitep 
as  there  referretl  to :    see  also  more  particular- 
ly Mr*  Hargrave^a  Collectiun  on  the  subject^ 
(Juridical  Arguments  and  CoUeclions,  vol.  1,  p. 
403,)  wherein  that  most  learned  lawyer  tie* 
duces  from  a  review  of  the  cases  and  autliori* 
ties  on  the  question,  whether  a  writ  of  error  in  | 
criminal  cases  is  a  writ  of  right  or  of  favor, 
these  conclusions,  viz. 

1.  *'  That  long  previotisly  to  the  rHgn  of 
queen  Anne,  there  were  opinions  in  favor  of  con* 
aide  ring  writs  of  error,  even  in  treason  and 
felony,  as  writs  of  ri^bl;  particularly  th« 
optuion  of  lord  chief  ju&tice  Wniy,  in  tli« 
King*B. bench  in  the  reign  of  queen  fclixal»eth, 
an  approbation  of  ihiit  opinion  by  lord  Coke, 
with  a  resoltition  of  the  llou>#e  of  Commons  in 
1689,  declaratory  of  their  stnie  of  the  law  lO- 
cordiogjy. 

tf.  **  That,  consequently  the  idea  of  its  pre^ 
viously  being  a  perfect   uovrlty,  to  cnnaidef 
writs  of  error  in  aiiy  criminal  cuite  n^  writs  oC  1 
right,  seems  to  be  a   raisiake  founded  on  not 
having  suiitcirntly  attended  to  the  hist^jry  of  { 
the  stibjec  I. 

3.  '*  Thai,  in  the  ri  >         "*     r^n  Anne,  ther«  j 
is  a  reaoluiion  of  ten  i  of  tvielT4'  dv* 
livered  iu  p»rliament>  o*  i.i.t<<u  mV  i»f  the  abao* 
lute   right  to  a   writ  of  error  in  all   criminal 
rAHCi,  except  Ireaaim  and  felony. 

4,  *"  That  in  the  name  rcii^n,  there  is  a  reffO* 
lutiun  of  the  Lonis  after  hearing  the  judges, 
declaring  tha  ab»olut«  rigbl  of  iUi£  au^^c^pV  >n 


1127]  4—10  GEORGE  III. 

turnable  in  parliament,  upon  each  juilfrment: 
and  both  judgpments  were  affirmed,  as  follows— 

Die  Lurnt,  16°  Januarii^  1769. 
Counsel  having  been  fully  heard  to  ar^rne  the' 
errnra  assigned  lu  these  causes,  the  following 
Uuestious  were  put  to  the  Judges — 

*  Whether  an  information  filed  by  the  king's 

*  solicitor-general,  during  the  Tacancy  of  the 

*  office  of  the  king's  attorney-general,  is  good 

*  in  law  ?* 

'  VVhether,  in  such  a  case,  it  is  necessary  in 

*  point  of  law,  to  aver  upon  the  record,  thai  the 

*  atioroey.generars  office  was  vacant  V 

Upon  the  second  record— 

*  Whether    a    judgment  of  imprisonment 

*  a^^ainst  a  defendant,  to  commence  from  and 

*  alter  the  determination  of  an  imprisonment 
'  to  which  he  was  before  sentenced  for  another 
'  ofience,  is  good  in  law  ?' 

Whereupon  the  lord  chief  justice  of  the  court 
•f  Common  Pleas,  (sir  John  Eardley  Wilmot) 
having  conferred  with  the  rest  of  the  judges 
present,  delivered  their  unanimous  Opinion 
ti|»on  the  said  Questions,  with  their  Reasons  as 
follows : 

yis  to  the  first  Qoestiou: 
^Ve  think  this  intbrmatioD,  so  filed,  is  »>od 
in  law.  • 


a  writ  of  error  in  all  criminal  cases,  without  so 
much  as  one  exception. 

5.  *♦  That,  since  the  reign  of  queen  Anne, 
the  right  of  the  subject  to  a  writ  of  error,  in 
Criminal  cases  under  treason  and  felony,  has 
Wn  recognized  in  Westminster- hall  by  some 
jud-jes,  without  contradiction  from  the  rest. 

6.  **  That  lord  Mansfield  qualities  the  right  to 
a  w  lit  of  a  error  in  misdemeanors,  by  explaining 
the  writ  to  be  not  absolutely  of  course,  but  only 
claimable  as  a  right  on  probable  error  shewn. 

7.  *'  That  whether  lord  Mansfield's  qualifi- 
cation of  the  ri(f  ht  to  a  writ  of  error  in  misde- 
meanors is  adopted  by  other  judges,  or  is  his 
lordship's  particular  opinion,  is  not  discoverable 
at  prescut." 

It  is  to  be  hoped  that  ere  long  the  world  will 
Lc  favored  with  a  more  copious  investigation  of 
the  subject  in  Mr.  Hargrave's  *<  Jurisconsult 
lixercilation,"  as  I  shall  have  occasion  to  men- 
tion in  a  note  to  the  case  of  Nairne  and  Ogilvie. 

Note.  In  a  letter  from  sir  Constantino 
Phipps,  (see  concerning  him,  vol.  15,  p.  222  ) 
to  Dean  Swift,  dated  January  14,  1720-21,  the 
writer  says,  **  The  last  term  I  sfK)ke  to  Mr. 
Attorney 'General,  [sir  Uoberl  Raymond,  after- 
wards lord  ehirf  justice]  about  it,"  [the  case 
4)f  Waters,  the  dean's  printer,  who  it  appears 
had  been  convicted  upon  a  prosecution, for pub« 
lishing  the  *  Proposal  for  the  universal  Use 
of  Irish  Manufactures']  "  but  he  told  me  he 
could  not  t;rant  a  writ  of  error  in  a  criminal 
case  witliout  direction  from  the  king."  See 
8wift»s  Works,  vol.  16,  p.  S33,  ISmoediUoo  of 


Case  of  John  Wiikes,  esfi  [11% 

By  onr  constitution,  the  king  b  cotmsted 
with  the  prosecution  of  all  criiiies  which  dis- 
turb the  pea<$e  and  order  of  society.  He  sos* 
tains  the  person  of  the  whole  comniiiDitT,  for 
the  resentmg  and  punishing  of  all  odeooes 
ifhich  affect  the  community  ;  and  for  that  rea^ 
son,-  all  proceedings   '  ad  vindictam  et  pee* 

*  nam'  are  called  iir  the  law,  the  pleas  or  saiai 
of  the  crown ;  and  in  capital  crimes,  tliete  soiti 
of  the  crown  must  be  founded  upon  tbeaoeatt- 
tion  of  a  grand  jury ;  but  in  all  mferior  cnmeii 
an  information  by  the  kinjg,  or  the  crown,  di- 
rected by  the  King's-hench,  is  eqoiralcat  ts 
the  accusation  of  a  grand  jury,  and  the  pa- 
ceedings  upon  it  are  as  legally  founded ;  tUi 
is  solemnly  settled  and  admitted.  Aaiwlicl- 
ments  and  informations,  fnnled  by  the  KiogV 
bench,  are  the  king's  suits,  and  under  his  csi- 
troul ;  informations,  filed  by  bis  attorney  gm 
ral  are  most  emphatically  his  suits,  becsoK 
thiey  are  the  immediate  emanations  of  bis  wifl 
and  pleasure.  They  are  do  more  the  soitasf 
the  attorney  general  than  indictmenta  aretk 
suits  of  the  grand  jury. 

Indictments  and  informatioiis  are  both  tk 
voices  of  those  entrusted  by  the  coDstatotioati 
awaken  criminal  jurisdiciion,  and  to  put  it  iiCi 
motion.  Who  are  those  persons  eutmslfdf 
A  grand  jury  for  all  crimes;  the  KJny*a-bMCi, 
as  well  as  a  grand  jury,  for  miademcaiionof 
magnitude. 

An  information,  brought  by  the  attaraay 
general  for  a  misdemeanor,  is  as  mucb  tbessit 
of  the  king,  as  actions,  brought  by  attwMii^ 
are  the  actions  of  their  clients^  aad  Ml 
of  the  attornies  who  bring  them. 

*  The  kiug  sues  by  bis  attorney,'  or  '  thi 

*  attorney  sues  for  the  king,'  are  only  difcol 
forms  of  expressing  the  same  thing.  It  if 
equally  good  either  way,  as  appears  by  tkf 
cases  in  2  Lev.  82,  and  3  Keb.  127;  aodsS 
legal  reason,  but  good  manners  and  decency, 
as  lord  Hale  calls  it,  have  given  the  prefereocs 
of  one  form  to  another.  It  is  the  king,  wht^ 
by  his  attorney,  gives  the  Court  to  underrtssd 
and  be  informed  of  the  fact  complained  of. 

Belbre  the  statute,  4 and  5  W.  and  Al.ciS, 
every  [irivate  man  might  lay  his  compbist 
before  the  court  as  the  kiog's  complainant ;  ikif 
was  abused,  ami  was  checked  by  the  statate; 
but  it  left  all  other  informations  as  they  were. 
What  were  then  the  king's  informations?  Uii 
right,  of  *  informing'  the  Court,  was  not  ss^ 
jected  to  the  check  which  the  act  set  upoatkl 
right  of  individuals. 

The  legislature  trusted  the  king  as  the  grcil 
constitutional  guardian  of  the  peace  of  the  is- 
ciety.  The  mere  suggestion  of  an  individsil 
was  too  sli|(ht ;  he  was  under  no  oath.  Thi 
king  is  under  the  most  solemn  sanctioo  ii 
every  part  of  his  great  office ;  and  it  is  wiM 
not  to  controul  it :  he  is  not  to  be  pot  oo  a  \tfd 
with  the  meanest  of  his  sulijects : 

The  argninir  that  the  attorney  general  sdffi 
and  no  other  otticer,  was  eutrusted  by  the  00" 
stitution  to  sue  for  the  king,  either  caHf^ 
crimiDally,  is  a  fiindamentid  mistakit.    w 


im)] 


on  twQ  Irtfutmai  ions  for  Ubelu 


A.  0.  1763—1770. 


[HSO 


miUtrn^y  Off n#rtl  in  enlrutited  by  the  kin^g^  and 
not  hy  lUo  c3on«titutinn;  it  is  the  king  wliu  is 
rtitriiMeti  Uy  theronfstitutioti. 

T^*-  .M*'ti  mI,; I, » L,3^  Mf  ilie  persons  appoiutPit 
if*  :  'it  tit^ure  hi^li  in  tlif- 

iiB  _  ,  vetl  idettS  to  it  ^v|itcl»tJu 

tiu4  belouj^  lo  11 ;  tur  he  is  but  an  uitoniey^ 
ihAiiL^b  III  ilie  knif*,  unil  in  no  oilier  nr  iliflVn'nl 
relation  to  him  ibiin  every  other  attorney  is  ia 
lib  emplover ;  and  il  is  by  deirrees  tliat  be  hatb 
•ttAiDcd  1(1  lliai  rank  wbicb  he  now  holils  in  ibe 
Jaw. 

I  find  no  truces  of  sach  an  oCBcer  for  cen* 
turifs  lifter  the  conc^uest;  ami  that  crreal  antU 
^i»rn  "'     tenant  uniler  the  word  *  Serricns 

*  ii'  considers  hitn,  tipnn  the  authori« 
fy  4JI  iMi^iiij^es  ritcd  out  of  Braclon,  as  the 
great  ntiiccr  fur  pleas  of  the  crown^  and  thinka 
Ibe  king  had  a  Serjeant  in  every  connty  fur  that 
|iiirpi»»e ;  and  in  the  proclamations  made  e?en 
•I  tbi«  day,  before  any  criminal  trial  heg^ins, 
the  king'^  scrjeant  is  mentioneil,  even  before 
the  attAjroey;  and  the  5th  Edward  5,  c.  13, 
which  i^ives  an  averment  a^inst  the  sheriff^'g 
reiuru  of  imprisonment  in  cases  of  ontlawry 
ml  Lbe  kinc^^s  suit,  mentions  the  king^^s  serjeanl 
beffire  the  attorney,  and  subjoins  '  or  any  that 

*  will  sne  for  the  king  ;*  which  is  a  strong  tn- 
dieation  that  the  king's  suits  were  not  con* 
Kid«rred  as  then  appropriated  to  bis  attorney ; 
and  he  hud  not  then  so  much  as  the  name  of 

*  att  r; '  rjeraJ/  which  means  no  more  than 

thr  nerally  employed  lo  sue  and  de- 

feii'^ A  Ling,  exactly  in  the  same  manner 

B«  iUtt  person  cfenerally  employed  by  your 
lonl«»hipt,  in  your  suits,  is  called  your  Wd- 
•hipa^  attorney,  without  putting  the  aildition  of 

*  l^eiierar  lo  it ',  and  the  suiu  instituted  by  the 
isiiig's  attorney,  or  by  your  lordships*  at* 
lOTiipy,  are  both  instituted,  either  by  special 
•t)«l  r  directions,  or  under  a  general 
BUI.  iich  is  equivalent  to  a  particular 
dirci:tiuu  lur  every  particular  suit :  and  a  suit 
■ntftihitfd  by  the  attorney-general,  is  entitled 

ihw   King  and ,  and  the  jury  are  sworn 

Mwren    the   King  and    ,    in   the   same 

manner  as  in  suits  between  private  individuals. 
^Vheiherthe  Itmg,  when  there  is  an  attorney  or 
li^li,.,*,,,-.'.  ..Ptal,  might »  by  one  of  his  serji'anti^ 
or  i  citor,  when  there  is  an  attorney, 

llov^  ti  a  civil  or  criminal  iutorinatiun, 

il  ia  nnf  necessary  to  determine;  but  the  pas- 

fe,  eitrd   out  of  the  Harleiao   mann^script, 
not  decide  in  the  nejfiiiive;  for  the  first 
m  Hf*iiry  the  eighth's  time,  orders  the 
in-  <Mr  to  slop  one  prosecution  and 

€<>ti  lotlief.      The   ofiice   of  attorney 

tfrmial  \<A^  either  vacant  or  full  at  that  time. 
It  varant,  it  nroves  the  solicitor  stands  in  bis 
place;  il  lull.  It  proves  that  by  particular 
oril^r,  the  kini;*^  huit  is  not  inseparably  at* 
iLaclu^l  in  the  oHicc  of  the  kin^f's  attorney. 

The  latter  pari  of  the  paKsa^e,  i^ontaintng 
ihf!  resoiuiion  of  th«*  l»l  tind  *2t\  Jnmes  1,  is 
only  the  adju^tmeiU  of  a  di^jiuie  between  the 
ftltornf^y  genrml  and  the  kinjii's  xorjeai»t»  whe- 
Hmt  the  king's  aerjemut  could  taititute  a  luit  to 


aa  to  privilege  it  with  resjiect  to  fees,  6^,  fn 

Itie  ordinary  course  of  proceeding;  aiul  it  waf 
delerminH  lo  behmg  lo  tiic  attorney  gfoer.il, 
ill  opf>ri«itiou  lo  the  serj«*uMt'«  rhmu  :  but  i| 
does  not  fullow  from  itieuce,  thnt  thi-*  king,  if  I 
be  hud  pleased,  migltt  nut  have  empowered 
one  o1  his  oviti  serjeuut!)  to  have  coiuiueiice4 
It:  and  u  special  antecedent  direction  could  not 
lie  necesssary ;  for  if  the  king  alter ^arda 
avoHs  the  suit,  and  pursues  it,  it  is  a  pi  inciplft  i 
and  maxim  that  *  omnis  rati  babiiio  inondiiti> 
ie(|U»paratur ;'  but  there  is  no  nccHsinn  in  thif 
case  la  b»ive  any  recourse  lo  such  it  ratifica- 
tion ;  for  the  solicitor  general  is  the  *^se€on« 
darjus  nitorriatus  ;^'  and  a**  the  couriis  take  no- 
tice judiciult}^  of  the  attorney  gt'iieral,  when 
there  is  one,  they  take  notice  at'  the  solicitor 
general}  as  standing  in  his  place,  when  iht^re  is 
ntme.  He  is  a  known  and  sworn  officer  of 
the  crown,  as  much  as  the  attorney  ;  and,  in 
the  vacancy  of  that  office,  does  every  act,  and 
ejcecutcs  every  branch  of  il.  But,  whether  il 
be  the  one  or  the  other,  they  only  echo  the  < 
king^s  complaint,  and  his  applicaiion  to  the 
court  to  act  upon  il.  When  the  attorney  diei 
or  is  removed,  mufil  the  great  criminal  jiirii^ 
diction  of  this  kingdom,  in  his  deoartmeiit,  be 
suspended,  till  another  is  appoviUtd  ?  It  it  said 
the  king  may  appoint  one.  Out  it  is  a  matter 
of  great  deliberation  and  infinite  consetjuence  to 
have  a  person  possessed  of  all  the  rju  a  lilies  ne- 
cessary for  that  office.  W  here  is  it  lo  he  found, 
thai,  in  that  interval,  the  noblest  branch  of  the 
king'i^  regal  office  becomes  inactive,  and  the 
i^ubject^s  right  to  proteciion  is  in  abeyance  T 
There  is  no  such  absurdity  to  be  foimd  in  the 
law ;  and  an  hiuius  in  government  is  so  de- 
tested and  abhorred,  that  the  law  says,  *  ih« 
king  never  dies,*  thai  there  may  never  be  ii 

*  cesser^  of  regal  functions  for  a  juomcnt; 
but  if  ibis  whimsical  conceit  were  to  lake 
place,  the  death,  or  removal  of  the  attorney 
general,  would  suspend  one  of  those  functional 
though  there  was  no  demise  at  all.  Thnt  thtf 
office  of  attorney  general  devolves  upfio  the 
solicitor,  is  proved  by  such  a  chain  of  authori- 
ties, as  can  le^ve  no  doubt  in  any  man's  mind 
upon  this  question* 

A  course  of  precedenti&  and  judicial  pro- 
ceedings in  courts  of  justice,  muke  the  law  : 
it  would  be  endless  to  cite  ca^es  upon  it, 
A  fsourse  of  practice  for  a  few  yenrs  Imt 
been  held  to  conlrout  an  act  of  parliament. 
The  case  of  Bewdley  corporation,  in  thfi 
i2ih  ipieen  Anne,  IF.  Williums,  207,  Be- 
fore the  4th  and  Mh  of  <jiieen  Anne,  jnriei 
were  to  come  out  of  the  hundred  ot  that 
place  where  ihe  action  aron**,  Thu*  was  at- 
tended uiih  many  inconvenienceSp  Thai  law 
directed  that  the  jury  should  come  out  of  the 
body  of  the  county  ;  but  a  practice  had  pre- 
vailed   in    the    Crown- oflicr,    lo   award   the 

*  Viiiire  de  Vicincto,*  as  before  tlie  act.  It  was 
referred  t(»  all  the  judges.  Their  nnanimoua 
opinion  was  delivered  by  Parker,  cliirf  jus- 
tice. The  coiistHtit  practice  ami  prccri(rnt»  b'Hli 
til  tbe  Crotta  o£^e  and  Kxrhcr^uer^  b«vi3^  | 


IISI]         4—10  GEORGE  III. 

*  de  Vicineto ;'  they  established  the  practice, 
and  said,  <  to  make  a  contrary  resolution  in 

*  this  Case,  would  be,  in  some  measure,  to  over- 

*  turn  the  justice  of  the  nation  for  several  years 
'  past.'  There  was  an  interval  of  five  or  six 
years  in  that  case — but  here  there  is  near  a 
century. 

The  Kin^  and  the  earl  of  Devon,  Easter, 
S  Ja.  S.*  Though  the  information  was  filed 
by  the  attorney  general,  it  was  taken  up  by  the 
solicitor  general,  and  shews  the  same  powers. 
Proceedings  were  brought  up  into  this  court, 
to  found  a  complaint  upon  ;  but  there  was  no 
writ  of  error.  The  judgment  was  never  re- 
versed. There  was  not 'the  least  complaint. 
This  Bouse  acted  upon  it.  Tliis  is  a  recogni- 
tion of  his  authority. 

[Here  the  Chief  Justice  stated  many  cases  in 
the  Exchequer,  Chancery,  and  King's-bench  ; 
and  particularly,  the  Queen  and  Lawson, 
Easter,  7th  of  queen  Anne,  which  was  an  in- 
formation exhibited  in  the  Exchequer  by  sir 
James  Montague,  *  solicitor  general,'  and 
where  the  jifdgment  was  affirmed  by  lord 
Cowper,  Holt  and  Treby.] 

The  attorney  general  is  no  more  a  sworn 
officer  of  the  King's-bench  than  the  solicitor 
general. 

As  to  the  3d  Question : 

The  inserting  the  vacancy  of  the  office  of 
attorney  general  in  the  record  sometimes,  and 
at  other  times  omitting  it,  shews  it  was  thought 
a  matter  of  indifference.  There  are  more  cri- 
minal informations  in  the  Exchequer,  without 
those  words  than  with  them.  At  most  it  could 
be  only  an  irregularity,  which  would  not  make 
•the  information  void  ;  because  it  is  the  king's 
suit,  and  the  Court  is  well  founded  in  opening 
their  jurisdiction  upon  it  ;  all  irregularities 
must  be  challenged  in  time,  and  if  not  chal- 
lenged, are  waived  ;  and  the  pleading  and 
going  to  trial  are  clearly  a  waiver,  if  there  had 
been  any  weight  at  all  in  this  objection  ;  but 
we  think  there  is  none.     In  this  case,  the  in* 


Case  of  John  WUkeSf  ei^* 


[1132 


*  Middlesex. — Information  filed  by  sir  Ro- 
bert Sawyer,  *  attorney  general,'  against  Wil- 
liam earl  of  Devon,  stales,  that  he  on  the  24th 
April,  3  J.  2,viet  armisy  at  the  city  of  West- 
minster, in  Middlesex,  within  the  palace  of  our 
lord  the  king  there,  to  wit,  in  Whitehall,  (the 
king  being  then  abiding  in  the  said  palace)  one 
Thomas  Colepepper,  esq.,  then  and  there  in  the 
peace  of  God,  and  our  said  lord  the  king,  did 
provoke  and  challenge  to  fight  with  him  the 
said  William  earl  of  Devon,  with  intention  to 
kill  and  murder  him  the  said  Thomas,  <&c. 

Plea. — And  now  (that  is  to  say)  on  Friday, 
next  after  the  morrow  of  the  Ascension  of  our 
Lard,  in  this  same  term,  before  our  lord  the 
king  at  Westminster,  comes  as  well  sir  Thomas 
Puwis,  khight,  *  solicitor  general'  of  the  said 
king,  who,  for  our  said  lord  the  king,  now  pro- 
tecutes  in  his  proper  person,  as  the  said  Wil- 
liam earl  of  Devon,  in  his  proper  persoo  i  and 
the  said  earl  tays,  ^c. 


formation,  though  filed  by  the  aolicitor,  b 
brought  into  court  by  the  attorney,  who  wm 
the  same  person  who  filed  it.  By  so  doing,  bt 
has  adopted  it;  and  it  \m  become  his  infor- 
mation to  every  intent  and  pnrpoie  wbatft* 
ever. 

When  filed — process-^wbeD  brought  ials 
Court— read  over  and  chargefl  with  it.  It  ii 
now  done  bv  the  officer— but  it  is  for  the  M- 
tornev.  If  there  waa  any  foundatioa— A 
should  have  been  objected  to  then.  lfBOt,il 
must  be  considered  as  waived. 

On  the  Sd  Question : 

We  are  of  opinion  that  the  defoDdant,  bc^f 
convicted  of  two  offences,  it  was  oeonsHj 
that  two  judgments  should  be  pronouBcedy  mt 
upon  each  intbrmation. 

Fine  and  imprisonment,  or  other  corporal  ph 
nishment,  may  be  awarded  for  audi  otteoeeiM 
are  contained  m  these  informatioos. 

The  kind,  and  the  quantity,  are  left  by  tte 
law  to  the  discretion  of  the  Court,  whkh 
passes  the  sentence ;  and  that  discretion  is  n- 
gulated  by  the  nature  of  the  offence,  mi 
the  circumstances  which  aggravate  and  cun 
nuaie  it ;  by  the  state  and  cmidition  of  the  dsi 
linqoent,  and  the  imprisonment  be  haa  aliwlf 
suffered:  and  that  discretion  is  alurays 
cised  with  that  lenity  and  compaasioQ 
do  so  eminently  distinguish  the  adminii 
of  criminal  justice  in  this  kingdom. 

That  sound  discretion  led  tho  Coort  to  isi 
and  imprisonment,  as  the  proper  and  adeMHi 
punishment  for  these  offences.  A  Tcry  Im 
fine  might  have  amonnted  to  perpetual  iaipi- 
sonment :  a  very  small  fine  must  iiiim— ijy 
have  produced  a  prolongation  of  the  impiisn* 
ment.  By  mixing  them  together,  the  kim 
edge  of  each  is  taken  off,  and  the  conseqncsct 
of  a  large  fine,  or  a  very  long  imprisonoMB^ 
carefully  avoided. 

A  fine  of  500/.  and  ten  nnonths 
ment,  is  the  punishment  for  the 
libel ;  a  fine  of  500/.  and  twelve  months  ia- 
prisfonment,  to  commence  from  the  deieroMS* 
tiou  of  the  former  imprisonment,  in  the  pusii^ 
ment  for  the  blasphemous  libel.  Tlie  objecMi 
is,  that  the  sentence  for  the  blasphemous  M 
is  erroneous,  because  the  punishment  is  sH  H  l^= 
take  place  till  another  punishment  is  taH  Is-r 
eitiier  by  effluxion  of  time  or  other  sooner  k- 
termination  of  it ;  which  may  be  by  a  revfliil 
of  that  judgment,  or  the  king's  pardoo;  li' 
that  all  judgments  are  to  take  immediate cM 
and  not  to  commence  '  in  futnro.*    In  irfsaii 


the  language  of  all  judgments  for  ofljeneeifi*' 
spects  the  time  of  giving  the  judgment ;  tbflsgk 
the  punishment,  directed  to  be  inflicted,  ii  ■ 
no  case  inflicted  immediately  ;  and  io  WUf 
cases,  the  judgment  directs  the  punisbmcsi* 
be  « in  future,'  and  must  be  so  accordiaf  ii 
the  nature  of  the  punishment. 

Jo  petit  larceny — to  be  whipttbrae  mM 
days  successively— to  set  a  nuin  in  the  fO^ 
three  times,  at  a  week's  or  a  monlb'sdiflMC^ 
to  find  security  for  good  b^fioor  fn*  ■' 


ite 


&! 


en  tvoo  Inf^rmationsjor  LibcU* 

oerUin  imprisoDmeDt,  or  ao  uncertain 
lOse  imprisonmenU  are,  where  a  fine 
id. 

sons  and  felonies — a  certain  known 
,  which  cannot  be  departed  from, 
:  present  tense  of  the  suhjunctire  pas- 
in  misdemeanors,  where  punishment 
tionary,  the  limitation,  as  to  lime, 
ly  to  he,  that  the  punishment  shall 
e  before  a  total  dismission  of  the 
punishment  shall  not  han^  over  a 
id  when  he  has  been  once  discharpfed ; 
Toperly  a  punishment  *  in  futuro/ 
It  he  remains  under  a  state  of  punish- 
ilst  he  is  suffering  one  part  of  his  pu- 
,  he  is  very  properly  the  object  of  a 
kind  of  punishment  to  take  place 
le  continuance  of  the  former,  or  im- 
*  after  the  end  of  it.  And  CTery  case 
ind  must  depend  upon  the  peculiar 
nces  which  attend  it. 
I  case,  it  must  be  assumed,  that 
imprisonment  were  the  proper  kind 
iment  to  be  inflicted  for  these  of- 
because  the  Court  intrusted  by  the 
on  with  decidini^  unoo  the  pu- 
,  has  said  so.  The  facts  and  cir» 
es  which  guided  their  judgment, 
respect,  are  not  before  your  lord- 
riiey  hear  a  report  of  the  trial,  and  af- 
r  every  fact  which  aggravates  or  alle- 
e  offence ;  and  therefore  your  lord- 
it  now  proceed  upon  a  supposition, 
ind. imprisonment  were  the  adc'quate 
Nits  to  be  iuflicled  for  each  ofleoce. 
be  disfiosed  to  say  and  to  think  so,  be- 
y  are  the  mildest  and  gentlest  punish- 

iinisbment  might  have  been  inflicted 
ways. 

^  imprisonment  for  twelve  months ; 

was  already  sentenced  to  ten  months, 

ba?e   been   only  an  imprisonment 

'  imprisonment  for  twenty-two  months; 
Buld,  in  eflect,  have  been  for  twelve, 
lis  would  have  been  most  grossly  un- 
luse  if  the  first  judjirment  should  be  re- 
)r  he  had  been  pardoned,  he  would 
en  imprisoned  twenty- two  mouths, 
)  Court  only  intended  an  imprisonment 
e. 

ie  Court  might  have  laid  a  fine  of 
^itli  a  short  imprisonment  for  one  of- 
nd  a  small  fine,  with  an  imprisonment 
ly-two  months  for  the  other. 
AToukJ  have  been  equally  unjust — for 
ces  are  different,  and  have  no  relation 
lotber.  Tlie  prosecutions  are  distinct, 
records  as  separate  from  one  another 
re  had  been  two  separate  delinquents ; 
>ffeDces  on  each  record,  roust  lie  as  se- 
and  distinctly  estimated  ;  and  though 
It  happened  to  be  passed  at  the  same 
both  offences,  yet  the  rule  of  admea- 
lost  be  the  same  as  it'  the  judgment 
I  prooouQced  at  different,  tluies 


A.D.  176S— 1770. 


[1134 


The  punishment  roust  be  proportioned  to  th€ 
specific  offence  contained  in  the  record,  upon 
which  the  judgment  is  then  to  be  pronounced ; 
and  must  be  neither  longer  nor  shorter,  wider 
nor  narrower,  than  that  specific  offence  de- 
serves. The  balance  is  to  l>e  held  with  a 
steady  even  hand ;  and  the  crime  and  the  pu- 
nishment are  to  counterpoise  each  other ;  and 
a  judgment  given,  or  to  he  given  against  the 
same  person  for  a  distinct  offence,  is  not  to  be 
thrown  into  either  scale,  to  add  an  atom  to 
either. 

To  lay  a  fine  of  1,000/.  for  one  offence,  and 
twenty-two  months  imprisonment  for  theotheri 
when  the  Court  thought  a  fine  of  500/.  and  an 
imprisonment  of  ten  months,  was  the  proper 
and  adequate  punishment  for  one  offence,  and 
a  fine  of  500/.  and  an  imprisonment  of  twelve 
months  for  the  other,  would  liave  been  twisting 
the  two  offences  and  their  punishments  toge- 
ther, and  a  departure  from  the  first  principle  of 
distributivejustice,  which  commands  all  judges 
to  inflict  that  punishment,  and  that  punish- 
ment only,  which  they  think  commensurate 
to  the  specific  crime  bctbre  them  ;  and  it  might 
have  been  productit e  of  the  same  injustice  I 
have  already  mentioned,  viz.  the  judgment  ia 
one  might  be  reversed  or  pardoned  ;  and  the 
delinquent  would  then  he  subject  to  a  larger 
fine  or  a  longer  imprisonment,  than  the  Court 
intended  to  subject  him  to  for  one  of  the  of- 
fences only. 

We  cannot  explore  any  mode  of  sentencing  ~ 
a  man  to  imprisonment,  who  is  imprisoned  al- 
ready, but  bV  tacking  one  imprisonment  to  the 
other,  as  is  done  in  the  present  case. 

It  is  not  letting  the  judgment  for  the  first  of- 
fence ?ary  the  punishment,  or  influence  the 
quantum  of  it  in  the  other ;  but  only  pruTid- 
ing,  from  the  situation  of  the  delinquent,  to  ef- 
fectuate the  punishment  the  Court  thought  his 
crime  deserved.  It  is  shaping  tlie  jui^^fment 
to  the  peculiar  circumstances  of  the  case ;  and 
the  necessity  of  postponing  the  commence- 
ment of  the  imprisonment,  under  the  second 
judgment,  irises  from  the  party  *s  own  guilt, 
which  bad  subjected  him  to  a  present  imprison- 
ment; and  therefore  the  question  really  is. 
Whether  a  man  under  a  sentence  of  impri- 
sonment for  one  offence,  can  be  sentence  J  to 
be  imprisoned  again  for  another  offence  ?  If 
he  can,  this  is  the  only  form  by  which  it  can  be 
done  consistent  with  justice.  If  it  cannot  be 
done,  then  in  all  ofiences  whch  are  ounish- 
able  only  by  fine  and  imprisonment,  it  a  maa 
has  committed  twenty,  and  has  been  sentenced 
to  imprisonment  for  one  of  them,  he  must  be 
fined  for  all  the  rest,  which  will  amount  to  per- 
|)etual  impiisonment  with  nine  parts  in  ten  of 
the  people  most  likely  to  commit  such  offences : 
or  sn  imprisonment  must  be  directed  for  every 
offence  after  the  first,  inadeqtuite  and  dispro- 
]X)rtionate  to  it. 

For  suppose  twenty  offences  of  the  same 
malignity,  and  meriting  exactly  the  same 
punishments — if  six  months  imprisonment  were 
tlie  piuushmeot  durected  for  the  faix^^«ck^^\ 


1IS5J 


i— 10  GEORGE  III. 


the  secood  must  be  twelve  months :  tud,  pro- 
ceeding progressively,  the  twentieth  must  be 
ten  3'esrs :  and  thus  »ix  months  and  ten  years 
will  be  the  punishment  for  offences  which  ought 
to  have  been  punished  exactly  alike.^  Or,  if  it 
be  an  offence  where  whipping  or  pillory  might 
be  inflicted,  the  alternative  of  a  moderate  im- 
prisonnient  will  not  be  in  the  power  of  the 
Court  to  inflict ;  but  they  will  be  under  the 
necessity  of  laying  a  large  fine,  or  directing 
one  of  the  other  severe  corporal  punishments. 

In  Dr.  Bonbaro's  case,  8  Co.  107.  The 
charter  granted  by  king  Henry  8,  confirmed 
by  an  act  of  14  Hen.  8,  c.  5,  gives  the  censors 
of  the  College  of  Physicians  a  power  to  punish 
physicians  u>r  a  mal  and  insufficient  adminis- 
tration of  physic,  by  amercement,  imprison- 
ment, &c. 

Dr.  Bonham  was  convened,  examined,  and 
found  insufficient  by  the  censors.  He  was 
amerced  5/.  to  be  paid  at  their  next  meeting : 
and  *  deinceps  abstineret,  etc.  quouscjue  in- 

*  ventos  fuerit  sufficiens  sub  pcena  conjiciendi 

*  in  carcerem,  si  in  pre  missis  delinqueret.' 

He  persevered  to  practise,  and  they  gnm- 
moned  him  again.  He  mac^  defau)t.  The 
censors  ordered  him  to  be  aifested,  and  after- 
wards he  came  before  them,  and  being  asked 
to  submit  to  their  authority,  he  refused  :  and 
they  committed  him,  and  awarded  that  he 
should  continue  in  gaol  till  they  released  him. 

It  appears  from  this  case,  1st,  That  he  was 
tinder  no  prior  sentence  of  imprisonment,  as 
here. 

Sdly,  That  aAer  the  judgment  of  his  insuf- 
ficiency,, he  was  dismissed,  with  li  threat  of 
imprisonment  only ;  and  was  afterwards  com- 
mitted to  prison  tor  not  submitting  to  their  au- 
thority. 

Whereas  the  delinquent  here  was  never 
dismissed,  nor  out  of  custody,  for  a  moment. 

3dly,  It  was  a  special  power  and  autliority 
of  a  very  singular  and  despotic  nature,  com  • 
roitted  to  private  persons,  and  therefore  to  be 
executed  strictly:  and  when  they  are  em- 
powered to  imprison,  if  they  find  a  person  in- 
aufficient,  the  punishment  must  immediately 
follow  the  judgment;  because,  if  suspended  a 
day,  it  might  be  suspended  a  year.  ]f  totally 
dismissed,  and  the  party  is  at  liberty,  the  power 
over  him  is  determmed. 

So  in  the  case  of  the  27th  of  Henry  7,  Y. 
B.  on  the  statute  of  Westminster  2d,  13  Ed- 
ward  1,  c.  11. ;  if  bailiffs,  &c.  are  found  in 
arrear,    *  arrestentur  cor|)ora    eorum,  et  per 

*  tesiimoniuin  auditorum  ejusdem  compoti,  mit- 

*  tantur  et  libereutur  proxiuiie  Goalie  Domini 

*  Ke;;is  in  partibus  illis.* 

No  time  was  limited  ;  they  must  commit 
immediately. — In  that  case,  it  was  contended 
on  the  plea,  that  he  had  been  at  large ;  and 
then  their  power  over  him  was  determined,  and 
so  that  what  they  did  after,  was  tortius,  Jt 
was  a  special  power  and  authority,  to  l»e  exer- 
cised strictly ;  and  therefore  held  that  the 
commitment  must  Int  to  the  next  gaol,  whether 
in  the  county  or  not :   and  if  &Ue  imprison- 


Case  of  John  JVilkeSy  esq. 

ment  was  brought  against  auditors,  tl 
shew  that  they  pursued  their  power. 
same  answer  applies  to  the  other  ca 
the  statutes  of  forcible  entries. 

[He  then  cited  various  other  pi 
particularly  the  case  of  the  Kin^  en 
3  Geo.  ],  1716,  in  which  the  first  , 
was  given  in  July  preceding,  upon  t 
ment  tbr  seditious  words  agamst  the  k 
the  punishment  was  a  fine  of  twenty-H 
.and  commitment  for  one  year,  am 
sureties  for  three  years.  There  wai 
conviction,  in  July,  of  a  like  ofTence,  > 
ment  of  a  fine  ot  twenty-five  marks 
tnitment  *  pro  spax:io  unius  anni  inl 
'  expirationem  prior.  Jodie,  imprii 
<  versus  eum  nuperadjudicatum.''] 

In  Answer  to  the  Questions  there 
posed  by  your  lordships,  our  UDaoimoi: 
is: 

1st,  That  an  information  filed  by  t 
solicitor  general,  during  the  vacanc 
office  of  attorney  general,  is  good  io 
.  2dly,  That  in  such  a  case,  it  is  n 
sary,  m  point  of  law,  to  aver  upon  t 
that  the  attorney  general's  oflice  was 

3dly,    That  a  judgment  of  imp 
against  a  defendant,  to  commence 
after  the  determination  of  an  imprisc 
which  he  was  liefore  sentenced  for  ai 
fence,  is  good  in  law.* 

Whereupon  it  was  ordered  and  i 
That  the  Judgments  of  the  Court  ol 
bench  be  affirmed.f 

On  Wednesday  the  7th  of  Februar 

Mr.  Davenport  moved  that  the  1 
might  be  brought  up,  either  into  con 
this  term,  or  before  a  judge  at  cham 
the  end  of  it,  to  enter  into  the  recogui 
quired  of  him  by  the  abovementionei 
court:  for,  his  imprisonment  will  en 
day  which  does  not  fall  within  ai 
namely,  upon  £aster  Tuesday  next. 

The  Court  told  him,  they  had  thougl 
already  ;  and  they  conceived  the  l>est 
would  be,  to  make  a  rule  for  his  ente; 
the  recognizance  before  the  marshal, 
other  justice  of  the  peace  for  the  c 
Surrey. 

And  accordingly,  they  ordereil  sa< 
to  be  drawn  up:  which  was  done,  i 
words : 

Ordered,  That  at  the  expiration  of 
prisonment  of  the  defendant,  by  vims 
judgment  of  this  Court  pronounced  sgai 
in  this  cause  on  Saturday  next  atWr  fiftc 
from  the  day  of  tlie  Holy  Trinity  io  dN 

*  Concerning  a  judgment  of  imprii 
to  commence  upon  the  determinatioB  af 
prisonment  awarded  for  another  aft* 
the  Case  uf  lord  George  Gordon,  Terw 

t  VideJoumals  of  the  House  «fl4M 
32,  p.  3<3. 


CcHofBratf  Crotly,  etq. 


1137] 

yMr  of  III*  reiifn  of  hia  prrsent  mijfflty,  the 
VPCiinty  r**qiMnMJ  Uy  the  Mid  juilifiDenr  to  be 
^tvrt)  liy  hi  til  ibp  »aul  lieturnlAiii  for  hia  ^oud 
Itcbutiour  for  i\\e  space  of  seTea  ^ears,  to  wit, 


A.  D.  1771. 


[IISS 


hifni«]f  the  iaiit  (lerntilant  to  i\\e  sum  of  1,0004  ] 
with  two  saflici«'i»l  sureii«  in  500/.  eaoh»  inm/1 
be  taken  by  ami  biffore  any  ju%tic€Of  ibe  {teac^  ] 
of  aud  fur  the  county  of  Surrey, 


543.  The  Case  of  Brass  Crosby,  esq.  Lord-I^fayor  of  London,  on  a 
r  Commitment  by  the  House  of  Commons.   Court  of  Common-  \ 

^^       Pleas,  Easter  Term  :  1 1  Geokc^  IIL  a,  d.  177L* 


(TIms  Ca*e  is  from  Mr.  Serjeant  Wikon*«  Re- 
fniti,  3  Wilff.  138.  The  history  of  the 
treonctionjt  of  ivbtch  this  Cnse  ^vas  i 
bf^Qch,  with  the  proceedinifB  of  the  House 
<if  Comnioiif«  Uie  readier  may  po»»«f(s  hini* 
vHf  of,  by  resortini^  to  the  Annual  Register 
for  1771,  an^l  the  New  Parliamentary  Hts- 
iory  fur  the  R»nie  }  car.  Upon  refusal  of 
the  Court  ol  Cotniuoii  Pleas  to  discharge 
IImi  Lord   Mayor,  the  Court  of  Exchequer 

Ck»8  movfd  for  a  Habeaa  Corpus  \  and  tike 
Caie  ^as  argued  by  counsel  on  a  like  return 
lo  thai  Couji :  hut  ib^  appUcatton  there  alao 
ftiiird  of  nucce^s,  and  the  Lord  IVIayor  was 
_      ^nianiied.]t 

L  ff  E  Kfutcnanl  of  the  Tower  of  London  was 
cfonituandrd  to  hu^e  belure  the  ju^lic^a  of  the 
tieuch  heri»,  thf  body  of  nffi^*^  Cro>by,  e^j. 
lord  mayor  nt  London*  by  hiin  deiMined  in  the 
ktiifz'a  piiaion,  ui  the  Tower  ol  Loudcu,  by 
wlml^uver  name  he  wtt«  Cdlb^d,  uij^iititr  with 
the  day  r  ^^^^l  cau>»e  nf  htji  capiiou  and  deteo> 
linn,  on  Mondnv  next,  ufier  three  wxn-ka  from 
Easter  day  ;  thai  the  KHid  justii'ei  seeing  the 
cause,  rniKht  d<i  that  which  of  ri^ht^  anri  ao- 
Ci»Tdioif  l(t  the  law  and  cutttiMn  uf  l^nirt^Dd, 
oii'^ta  inbedoni*^  and  furlbfr  to  do  ji rid  re- 
I    'I  iii  juvticr^  here  nhuutd  ttien 

iiidf.     And  now  here,  at  *ht(i 
yM\    vkH)    .*inmltty  next,  April   t*it    1771* 
fhrre  werksfroin  LCitiet-day,  in  this  term 
tb  the  a  14 id  llroHH  Croiihy*  in  \m  proper 
under  the  cn^^ody  id'  Charles    Hauis- 
•'Mx    lU^mty 'lieutenant  of  the  Tnwer  of 
ht  to  the  bar  here  ;  and  the  aard 
I    I      wint  then  here  returnHh,  that  be* 
>  lheri»Tiiii3(;  of  ihesaid  writ,  (<o  wil)  •»«  (he 

•  Ht«L  'i  Mia*  k-H.  754. 

j^   Hrm   the    proc«^*'«hn^    agfauist  Richard 

Ml,  clerk*  for    a   hi^h    miadeineaoor 

parharneut,  vo'.  8,  p. 

'    •  ihat  Case  ;  aec 

iit(iniConcemin|^ 

urauN  of  the  hrinour* 

Mr.  Ohf  cr  Bond  by  the 

»n    1793»   and  of    Mr. 

'•*»•  ot  Lords  in  lTy8» 

.  il  Argumeuti  aud  Col- 

IjV^L  S,  p.  183. 


$7th  day  of  ftfareh  hat,  the  said  Br«ff  Croabf 
was  comniiited  to  the  Tower  of  London,  by 
firtue  of  a  certain  warrant  uivler  the  hand  of  ^ 
sir   Fletcher  Norton,  knj|jfhl,  !*$peaker  of   the 
IJou^e  of  <^^'ummon*i,  which  fullowi  in  these 
w  ords  :    **  W  heread  ibe  House  of   Cnmmont 
hare  this  day  adjudifed,  that  Brass  Crosfby, 
eiq.  lord-mayor  ol  London,  a  member  of  this 
Ilitu»e,  having  sig^ned  a  warrant  for  the  com<* 
mitmeut  of  the  ntei»«en^er  of  the   Houj^e,  for 
liAf  innf  execmeil  the  warrant  of  the  Speaker, 
i««ued  under  the  order  of  ihe  Houae,  and  held 
the   said    nnt^saeni^cr  to  bail,  is   guihy   of  % 
breach  of  privilege  ol  the  Hou^ie ;  and  (inhere- 
89  the  aaid  House  hath  iliis  day  ordered,  that 
the  laid  Brass  Cro*iby,  e^(\.  kirtrmayor  of  Lon- 
don, and  a  member  of  thia  House,  be  for  \m 
said  ortence  commiUed  to  the  Tower  of  Lon- 
don :    ihrse  are  therefore  lo  require  you  lo  re- 
ceife  iulo  your  cusiody  the  body  of  the  said 
Brass  Cto>hy,  est^.  and' him  safely  keep  during 
tlie  pleasure  of  liie  j^aid  House,  for  which  this 
shall  be  yuur  sufficient  warrant.     Given  undi^r 
my    hnnd,  the  25th  day  of   March,    li7L" 
And  that  this  was  Ihe   cause  of  the  capljoti 
luid  del  en  I  ion   of   the  said   Brssa  Crosby,  in 
the  priton  afur«»«aid  ;    the  body  of  which   aaid 
XUikhs  Crosby  ho  hath  here  ready,  as  bv  the 
Kuid  writ  he  wna  commanded,  6lc.      Where- 
upon, the  premises  bein^^^  seen,  and  fully  ex- 
aiiiiiietl  and  understood  by  the  jupticcs  here,  it 
sefmeth   10  the  said   justices  here,  that   this 
aturesaid  cause  of  commitment  of   the  said 
Hrata  Crosby,  e*f|.  to  the  kind's  prison  o^'  the   , 
Ttiwer  of  London  aforeanid,  in  the  return  aboviz 
speeitied,  %H  gi>fKl  and  sutiicient  in  law   to  de- 
lain  the  said  Bra»s  Cnivby,  eiq.  in  the  prison 
affireiaid  :    therefore  the  suid   lirassi  Crosby. 
I'tq.  ia  by  the  Court  here  rctnauded  to   the 
Tower  of  London,  ficc« 

The  Argument  for  the  dkchttrgc  of  the  Pruoner* 

t^rjeanls  Glynn  andJephson  argued,  ilmtil 
appeared  by  the  return  of  thi%  Habeas  Corpus^ 
that  the  cause  of  commitment  of  the  lord, 
mayor  totheTowerof  Luudoo  was  tuNufbcient 
in  law  for  ihe  dtienlion  of  him  there ;  and 
therefore  ibis  Court  ou^ht  to  discharge  him  out 
of  tlie  cu«tody  of  the  (teutenant  of  the  Towur 
of  London* 

Here  follows  the  substance  of  serjeanl 
Glynn^a  Argument,  after  ih^  wiir;4fid  tPiam 
wert-  filed. 


1139] 


11  GEORGE  III. 


Case  ofBroMi  Crosfyt  tiq. 


[1140 


Serj.  Glynn.  The  auestinn  now  before  the 
Court,  is,  whether  it  does  not  appear  by  the 
return  of  this  writ,  that  the  lord-mayor  ought 
to  be  discliarged ;  and  it  is  a  ?ery  inoportant 
and  conslitutional  question  indeed. 

The  return  states,  that  the  ioiprisonment  of 
his  lordship  is  by  virtue  of  a  certain  warrant 
under  the  hand  of  sir  Fletcher  Norton,  knight. 


This  Court  moit  enquire,  wbefher  the  Hmk 
of  Commona  has  not  exceeded  ita  liwfiil  jnria* 
dietion.  The  lord  mayor  it  ohaigcd  witb  a 
contempt  The  qoettiOB  is,  whether  he  ia 
guilty  of  a  contempt ;  that  if  to  aay,  whetbtt 
(be  tact  charged  opon  him  unomitB  by  bw  la 
a  contempt.  The  Hoose  of  Commona  makci 
an  order  for  committing  m  printer,  and   ' 


Speakrr  of  the  House  of  Commons,  reciting,  !  order  expresaes  wboabalTtalce  him  into  costodyi 


that  whereas  the  House  had  adjudged,  that  his 
lordship  having  signed  a  warrant  for  the  com- 
mitment of  a  messenger  pf  the  House,  for  hav- 
ing executed  the  warrant  of  the  Speaker,  is- 
sued under  the  order  of  the  House;  and  held 
that  messenger  to  bail,  is  guilty  of  a  breach  of 
privilege  of  the  House ;  and  tKO  reciting,  that 
the  House  had  ordered,  that  his  lordship,  a 
member  of  the  House,  should  for  his  mid 
offence  be  committed.  So  that  it  appeara 
what  thai  breach  of  privilege  it. 

When  any  person  b  brought  to  thb  bar  by 
the  king's  writ  of  Habeaa  Oorpua,  the  judges 
must  look  into,  see  and  consider  the  cause  of 
hb  detention,  and  are  bound  to  do  that  which 
of  right,  and  according  to  the  bw  and  cwtom 
of  England,  ought  to  &  done. 

Acts  done  by  the  highest  authority  are  auh- 
ject  to  the  inquiry  of  the  courts  in  Westmin- 
ater-hall ;  whose  jurisdiction  extendi  not  only 
to  inquire  into,  oontroul  and  correct  the  acts  of 
inferior,  bntaJso  of  co-ordinate  and  superior 
powers. 

A  breach  of  privibgeof  the  Houaeof  Com- 
mona is  stated,  and  abo  in  what  manner,  and 
by  what  fact  their  privilege  was  brokai ;  there- 
lore  Ibis  Court  must  determine,  whether  the 
fitct  chai^ged  is  by  law  a  contempt  or  breach  of 
privilege.  When  it  is  returned,  that  a  jieraon 
was  committed  by  any  other  court  in  this  hall, 
for  a  contempt  generally,  without  specifying 
the  fact  or  nature  of  the  contempt,  this  Court 
cannot  inquire  in  the  matter,  but  must  remand 
the  prisoner.  £very  court  of  justice  of  re- 
cord in  the  Hall,  must  necessarily  have  abso- 
lute power  to  enforce  obedience  to  their  own 
orders,  or  justice  could  not  possibly  be  ad  mi  •. 
nistered  to  the  king's  subjects.  The  House  of 
Commons  is  not  a  court  of  justice  of  record, 
lor  it  cannot  administer  an  oath :  it  has  a  cer- 
tain limited  jurisdiction ;  and  this  Court  must 
judge,  whether  it  hns  not  transgressed,  and 
gone  beyond  the  bounds  of  its  jurisdiction, 
and  must  pronounce  upon  it.  If  the  king  doth 
exercise  any  power  which  b  not  conformable 
to  law,  this  Court  will  remedy  it.  The  oUl  writ 
De  Homioe  lleplegiando  did  not  comprehend 
the  mandates  of  the  king  ;  but  the  Habeas 
Corpus  extends  to  them,  and  to  all  a<'ts  of ' 
power  not  conformable  to  law.  If  the  Court  j 
of  Chancery,  which  is  a  superior  court  in  civil 
causes,  should  exceed  its  jurisdiction,  and  in-  ' 
terlere  by  injoncliun  in  criminal  cases,  the  in- 
ferior court  vkoxM  determine  airiinst  the  Court 
of  Chancery,  and  would  di^cliar^e  any  one  ' 
from  imprisonment  whom  that  Court  should 
'  t  for  disobedience  to  such  injunction.        j 


namely,  the  aerjeant,  or  deputy  Mrieant  it 
arms  of  the  House.  The  printer  b  tsikeniBli 
custody  bv  a  messenger,  within  the  dty  if 
London;  be  compbinsto  the  lord  mayor;  wbi 
examines  into  hb  compkmt,  praoeeds  jodicU- 
ly,  and  according  to  bw ;  and  after  aooh  eli- 
mination, iooording  to  the  beat  of  hb  jodpncil, 
b  of  opinion,  that  the  warrant  of  air  FMebB 
Norton  does  not  justify  the  taking  the  pibis 
mto  custody  by  a  meaaeoger  of  the  Howi^b 
the  city  of  Londoa.  How  doci  thia  ialafiMa 
with  the  bwful  iuriadiction  of  the  Uooac  rf 
Commons ;  and  how  does  it  exceed  the  b«M 
jurisdiction  of  the  k>rd-mayor,  within  the  d^ 
of  London  f  The  juriadiction  of  the  Haai 
must  be  limited  to  aome  partbniar  ol^ieelis  ths 
cbim  of  iQ  unlimiled  power  in  thb  ooualry  ii 
absurd,  and  destroys  itself.  In  the  great  eoo- 
tbo,  in  Aahby  and  White,*  about  the  Ay  IcriMvy 
men.  we  find,  that  in  a  conference  hetweea  Ai 
Loidi  and  Commons,  it  wii  agreed,  thit  Ai 
imons  cannot,  by  any  TOte  or  reaolntba  of 
letr  own,  aaaume  or  acquire  any  new  jn* 
dbtion  or  pn^il^*  Here  b  a  warrant  mim 
the  band  of  air  Fletcher  Norton,  apenkcr.  8r 
Fbtcber  Norton  has  noperaonal  antherityli 
commit  whom  he  pbaaea.  llie  Speaker,  ■ 
such,  baa  no  oflkial  authority.  Whatever  au- 
thority he  can  have,  must  be  merely  as  Ai 
instrument  of  the  House  of  Commons :  Uf 
act  can  be  Talid  only  hy  the  order  of  the  Hoase. 
fiot  that  the  warrant  is  made  contrary  talks 
order  of  the  House,  appears  to  this  Coon  by  tkl 
return  of  the  Habeaa  Corpus;  conaeoueadf, 
the  Speaker  having  no  authority  of  his  avs, 
snd  the  warrant  being  contrary  to  the  order, 
the  same  is  invalid.  Tlie  messenger  execatsl 
the  warrant  in  the  city  :  the  Speaker  bad  as 
authority  to  empower  him  to  execute  it  b  iht 
city  of* London.  The  House  of  ComnMi 
have  not  an  unlimited  jurisdiction;  the  M 
mayor  was  theretbre  obliged  to  ermine,  whs- 
ther  the  act  of  power  exertfd  by  them  wilbb 
the  city,  was  within  their  jnriMliclion.  Ill 
printer  had  been  charged  uitli  printing  Ihi 
speeches  of  some  members  of  the  House,  ftr 
which  he  was  ordere<i  to  be  taken  into  cei* 
tody.  The  lord-mayor  thought  tlie  Hoosesf 
Commons  hail  no  ri^ht  to  order  the  prinitrH 
be  taken  into  custody  by  their  measenirerio  lb 
city  of  London,  and  that  the  printer  oogbi  I 
to  be  committe<l  for  the  Hct  with  which  be  Mf 
charged.  There  is  nothing  to  be  prelendsdii 
favour  of  this  proceeding  of  the  Hoosa  if 
Commons,  but  their  assumed  transcraM 
power.     Now  it  would  totally  destroy  aH  lb 

«  See  the  Case,  vol.  H  p.  MS. 


1141]       on  a  CommUment  by  the  Home 

iMDsfit,  ftikd  the  very  endot'tht  fUbeas  Cor- 
pus, if  the  trftnBcetideucy  of  any  power  what- 
ever coutcl  bliod  the  eyes  oi*  a  court  of  justice^ 
lAd  prefctit  Ibeir  enquiry  into  iti  acts.  Such  a 
ieciikiii  by  judf^es  sworu  to  administer  faith- 
fnlly  the  UwBf  would  be  fatal  to  every  thiog- 
Ibat  is  worth  preserving  io  our  boasteJl  consti- 
tfiljoni  and  would  leave  the  unhappy  suhjecls 
^f'thia  uountry  in  a  slate  niurh  worse  than  a 
•tate  of  8ava4^  nature.  The  great  chief  justice 
Holt  WiAs  clearly  of  opinion,  and  held  tt  for  good 
IftW,  that  if  it  appeared  upon  the  face  of  ihe  re* 
tmn  of  a  Habeas  Corpus^  that  what  ihe  House 
of  Comoiaiis  calleil  a  contempt,  was  not  hy  law 
ACOBtempt,  ihe  person  committed  for  it  nnuiit  be 
^hehmrged  t  that  the  privileges  of  the  House 
of  Commoos  are  part  of  the  law  of  the  land, 
and  therefore  the  courts  here  mast  lake  notice 
of  them  incidentally  .-and  thouj^h  this  was  the 
Opinion  of  a  single  judge  against  three  others, 
y^  it  was  agreed  to  and  supportml  by  the 
oiliOorLords,  wbo,iu  thosedoysi  reiuerubereil 
Hial  they  were  the  hereditary  guardians  of  the 
people.*  A^ain— Holt  htlii,  tUm  theonler  of 
ibo  iJouse  of  Commons  forbidding  any  one  to 
aoek  or  puiisue  a  legal  remedy  against  their 
onlerf ,  was  itlet^nl  and  naught ;  and  boldly  said 
io :  and  accord m^tv  he  was  of  opinion,  tliat 
the  persons  ctmitiitlted  for  contempt  of  that 
oriler  oa^it  to  have  lx;en  discharged  *,  though 
Ibo  throe  other  judges  were  of  a  contrary  opt- 
bion ;  snd  the  pt- ri»on^  were  remanded  to 
Newffate.f  Upon  petition  to  the  queen,  a 
writ  of  error  was  aliowed*  and  brou|^lit ;  and 
lietbre  it  waj  nrgueil,  the  parliantent  tor  $^ood 
roai»oas  wis  dissolved  i  but  I  will  venture  t«i 
•ay,  if  (I  had  been  artjucd,  there  would  luive 
lioeo  judi^nient  •;iveu  by  the  Hnnsi:  of  Lords 
■coordinjET  to  Holt's  npuiiun.  W  the  lejf  et 
€tnuuctudo  pariiuntgnti,  of  which  we  he«r  R« 
touch  atiil  Itntiw  so  little,  be  indeed  a  part  of  the 
law  of  the  land,  the  judges  are  hound  to  take 
ootioe  of  it,  and  to  decide  upon  it,  as  they  do 
HfMMi  «fv«ry  other  part  of  the  law.  It  has  been 
»al  '  i  ltd  chief  justice  Holt  was  single 
iri  It ;  nevertheless,  I  may  voDtureto 

inai  iiiif  ojiinioti,  in  the  judgmml  of  every 
I  aod  unprfjudicc'd  mind,  will  not  lie 
iigtil  in  the  scaJe,  againwt  that  i^f  the 
■iCar  judges.     He  was  single :    but  he 

truth  and  integrity  with  him,  as  well 
liiio  strongest  arguments  on  his  side,  which 

00of«reoc^  with  the  Lords  demonstrated  ; 
EOta  which  havts  never  yet  Neo,  an4 
eofiiMit  00 w  be  answered.  The  other 
lhfr«  jndgi  K  dffTiTing  in  opituou  tVorn  him« there 
«aa  a  writ  of  error  (as  I  jwid  b^tWi*)  grnutetl, 
roturuabW  in  parliaincrnt ;  and  if  the  tcm|K^rof 
Iba  tifftfS  wouUl  ha%e  }»ennitted  it  to  bave  been 
in,  and  itu^  parliament  ImuI  not  l>e«n 

I  iliasolved,  it  may  easily  be  collected,  from 

atfotoeois  aliovr  referred  to,  I  hut  it  would 
Mrsaliaii  froa^i  iho  Lords  a  uiostsotemu  ao4  just 

U  C>  J.  De  Gtty.     Brothef  Olyno,  that 
•  1 14.  Aa|iM.  9^iL         i  Ibid.  1 1  la. 


of  Commons.       A.  D,  1771. 


[IMt 


I 


writ  of  error,  you  niBntion,  was  ne?  er  brougbt 
before  the  Lords, 

Serjeant  Glynn*  It  ti  true,  my  lord,  it  wai 
netcr  brought  directly  in  ijueftlron  beftire  thera  ; 
because  doubts  wi  re  iQiartHf,  whether  it  waK  a 
writ  of  ri«;ht  or  of  favour,  which  miifht  be  re-  ^ 
fused  by  the  particular  stBcer.  This  occsmoq*  H 
ed  a  petition  to  the  que«>u.  ulio  in  answer  to 
the  petition  Kaid,  she  was  come  to  u  re?<idutioQ 
to  grant  a  writ  of  error,  because  ahe  Has  de- 
sirous to  have  the  matter  of  law  settled,  for 
the  good  of  her  subjects  :  but  unhappily  for  us, 
the  particular  circumstances  of  ihose  limes 
prevented  it;  aud  the  |>arliament  was  dis- 
solved. 

L.  C.  i.  Di  Grty,  In  all  cases,  axoept  Irca* 
son  and  felony,  !  think  u  writ  of  error  it  granta- 
ble  of  right.  The  two  Hrmses  addressed  the 
tpieen  for  ditf(?rent  purposes.  The  Lords  said, 
it  was  time  enouint  to  decide  upou  the  writ 
of  error,  wheo  it  came  before  thcfu. 

Serjeant  Gl^n.  My  lord>  it  is  for  that  reason 
J  said,  1  collect  it  from  other  arguments  which 
make  it  very  reasonable  to  snpjMiije,  that  tho 
subject  would  have  had  satisfaction  and  tedreas 
from  the  decision  of  tbe  House  of  l^rds. 

The  question  at  present  is,  whether  this  Court 
hfls  not  power  to  examine  into  the  juried iei ion 
of  the  House  of  Commons?  1  submit  it,  with 
deference  to  the  Court,  that  you  have  lawful 
power  to  enquire,  wlit'therthe  HouMe  of  Com- 
mons had  uny  jurisdiction  in  tins  cane,  and 
that  their  privilegt/s  are  not  to  be  HUppo&ed  so 
transcendent  and  mystical,  as  to  exclude  all 
enquiry.     My  lord,  1  deny  Ihut  the  mayor's 
act  is  a  breach  of  privile^je  of  tbe  House  of 
Gommoos.    The  lord-mayor  wan  in  tull  poa* 
session  of  juriMlictioo   in  the  case  \    he  waa 
ebtigei)  10  decide  upon  the  quesiion  liefore  him  % 
he  was  obliged  to  form  an  opinion  upon  a  ca«o 
wuhiu  his  jurisdiction,     Shall  his  opinion  bo 
adjudged  a  contempt  t  Is  thi^  the  law  of  the 
land  ;  thai  when  ditfe  rent  courts,  having  juris- 
diction of  the  same  nature,  differ  in  their  de- 
cisions, ihey  are  guilty  of  contempts  one  sgajiisi 
tbe  other,  and  may  be  punished  for  »uch  con* 
tempts?  it  is  no  cmiempt  in  me,  a  privato 
man,   to   hafe  an  opuiiou   ditferent  from  tha 
ll^i-eattst  authoiiiies  iu  tbts  kingdom.     It  was 
the  lord -may  or' IB  opinion  upim  the  case  t*eftir« 
him ;  he  was  bound  by  his  oath  to  act  pur* 
iuant  to  that  opinion  \  it  was  his  b^umdiMi  dotft 
to  aol  accordingly :  be  would  hate  lietn  j*er* 
jured,  if,  out  of  re*|H>ct  tor  a^iy  pf  rson&,  he  ha  ' 
not  obeyed  the  a*fl  of  hii  cuoscieure.     It  mm 
no  orime  for    him  to  entt»rii*in   the  opiniod 
Euterlaining  it,  he  was-  Imnnd  U*  declare  ii,an 
it  was  his  duly  to  act  in  ctmsuque nee  of  W.  TiM 
conscientious*  act  of  a  ms«iHirat4%  wiilnn  iIk 
|jMur»  of  Ins  joik«dii-lini»,  k^u  urirr  Iw*  a  €!on 
tempt,  or  punw»balde.     tJnles*  a riisgfslralf  art 
wrong  from  con  opt  moii*e»,  hf  iraiHuit  be  pt% 
tiiMhed.     Hilt  luppoM*  luv  »  moment,  the  lord^ 
mayor  did  not  act  from  hia  opinion,  hut  fr^nal 
some  corrupt  luotiro,  U  ts  oov  Mm  Vi«4>»ia  A 


II4SJ 


II  GEORGE  m. 


Cote  ofBrau  Crotby,  etq. 


[1144 


ConimoDs,  bot  a  jory,  tbat  most  jtid^fe  of  it. 
The  duty  of  a  magistrate  differs  widely  from 
that  of  an  officer.  From  the  latter,  a  fall  and 
ready  obedience  is  required  to  be  paid  to  the 
orders  of  the  Court  whose  officer  aad  minister 
lie  is;  and  such  orders,  righily  pnrsoed  and 
executed  by  him,  are  his  sufficient  justiOca- 
tion :  but  the  magistrate  is  bound  by  his  oath, 
and  has  an  opinion  and  judgment  of  his  own 
vhich  he  must  follow ;  and  he  is  answernble 
to  the  law,  and  cannot  be  justified  for  the 
breach  of  his  oath  and  the  luw,  by  any  order 
or  resolution  of  the  greatest  authority. 

Your  lordships  are  now  called  ojton  to  say, 
whether  the  lord- mayor  of  London,  in  a  case 
where  he  bad  indisputable  jurisdiction,  acting 
by  his  opinion,  and  according  to  his  oath,  is 
guilty  ot  a  contempt  of  the  Hotise  of  Com- 
mons, and  can  by  law  be  imprisoned. 

Serjeant  JepAson.  My  lords,  as  I  shall  not 
ha?e  an  opportunity  of  answering  any  argu  • 
ment  from  the  bench,  nor  can  possibly  know 
the  objections  your  lordships  may  have  to  dis- 
charging the  lord-mayor  out  of  custody,  I 
shall  endeavour  to  anticipate  and  answer  such 
objections  against  discharging  him,  as  occur  to 
iDe,  and  may  possibly  be  made  by  tbe  Court. 

The  question  is,  whether  sufficient  cause  ap- 
pears to  the  Court  upon  the  return  of  this  wnt, 
to  imprison  the  lord -mayor?  If  no  legal  cause 
appears  for  detaining  him  in  custody,  he  must 
be  discharged. 

1  shall  consider  the  nature,  the  return,  and 
the  consequence  of  the  writ  of  Habeas  Corpus. 
It  is  a  prerogative  writ  of  right,  to  inquire  into 
the  cause  of  the  imprisonment  of  any  of  the 
king's  subjects.  If  a  legal  cause  of  detention 
<Ioth  not  appear  upon  the  return  of  the  writ, 
the  subject  must  be  discharge<l,  and  set  at  li- 
berty :  therefore,  if  a  legal  cause  does  not  ap- 
pear upon  the  return  of  tiiifi  writ,  the  lord- 
mayor  must  be  discharged  out  of  custody. 
This  position  cannot  be  denied. 

It  appears  from  the  cases  of  sir  William 
Thicknesse,  4  lost.  434.  Sir  William  Chauii- 
•  cey,  12  Kep.  83,  and  from  Bushel's  case, 
Vaoglu  135,  iScc.  that  the  cause  of  imprison- 
ment ought  to  be  as  specifically  returned  to 
those  who  judee  upon  the  writ  of  Haljeas 
Corpus,  as  it  did  to  those  who  first  committed 
tbe  party.  Again,  Bethell's  case,  1  Salk.  348, 
nvhere  the  commitment  is  not  to  the  legal  and 
immediate  officer,  it  is  naught. 

Again,  Search's  case,  1  liCon.  70,  %vhere 
the  queen  had  taken  a  person  into  her  protec- 
tion, who,  notwithstanding,  was  arrested,  and 
the  persnn  arresting  committed,  and  on  a 
Habeas  Corpus  was  discharged.  See  attain 
Doctor  Alphonso's  case,  3  Bulst.  259,  where 
tiie  return  was  bad,  no  cause  being  therein 
shewed ;  also  Thomas  Barkham's  case,  Cro. 
Car.  507.  the  like  case,  ibid.  579.  1  Roll.  Rep. 
193,218,  Apsley's  case,  and  RuswelPs  case, 
ibid,  245,  Codde's  case.  The  determination  in 
•N  the  cases  the  same :  if  the  legal  chargv  is 
not  returoed,  the  peraoo  must  be  diadiarged. 


Tbe  Court  roast  judge  of  the  oaiiae  of  commit- 
ment  returned :  if  not,  why  should  the  writ 
command  tbe  retom  of  thecaoieP  The  caow 
if  returned,  that  the  Court  may  judge,  vrbetber 
the  person  is  intitled  to  bia  liberty,  or  not.  It 
is  no  objection  in  this  case,  to  any,  tliattbe 
House  of  Commont  having  a  power  to  can- 
mit,  therefore  this  Court  ronst  not  jud(|^  of  tbe 
caote  of  commitment  returned;  for  tbia  waeM 
pnive  too  much ;  because  it  would  go  to  every 
oUier  court  having  jorisdictioo  to  eooHMt 
Suppose  the  Court  of  King*s-beoch,  which  ii 
equal,  and  perhaps  superior  in  some  respect  Ii 
this  court,  should  commit  a  person ;  and  Ibi 
person  committed  should  be  brought  hers 
Habeas  Corpus ;  this  Court  would 
take  notice,  and  inquire  into  the  cause 
turned  ;  and  if  this  Court  thought  it  not  a 
ficient  cause,  would  discharge  the 
otherwise,  how  would  the  end  of  bringing  the 
writ  of  llatieas  Corpus  be  answered  ? 

It  is  no  objection  in  thb  case,  to  smy,  tbel 
the  Court  cannot  examine  the  cause  aa  staid 
in  the  return,  because  the  Court  would  tin 
determine  upon  the  privileges  of  the  House  if 
Commons:  the  Court  must,  and  doth  fre- 
quently determine  upon  the  privileges  of  per- 
liement,  when  they  come  incidentally  bcfeie 
them.  See  the  earl  of  BanburyN  c^sie,  9  M. 
Raym.  1347.  Salk.  513.  3Stra.  987-8.  TIm 
Court  made  no  sort  of  hesitation  to  defemiae 
in  Wilkes's  case,  upon  the  privilet^e  uf  parlis- 
ment.  3  Wilson  151.  Why  tlien  ahouhl  ilicy 
not  now  enter  into  this  question,  toorliiug  Uw 
privilege  of  parliament  ?  In  lord  8hafie»burv^ 
and  Mr.  Murray's  cases,  the  returns  were  ge- 
neral, for  contempta  of  the  House,  wiibsal 
stating  the  particular  facts;  but  the  ladsnf dM 
supposed  contempt  in  this  r;ise  :i|»(M  ar,  wbidi 
we  contend  cannot  by  anv  h'gal  c<iiiMriirtii« 
amount  to  a  contempt,  and  tjirrrtinf  thai  ibe 
lord  mayor  must  be  diNcli:iit>fc*'K  The  Home 
of  Commons  having  deteniiinfil  n  tt>  bf  a  ess- 
tempt,  does  not  alter  the  caM-  :  a  fHi  t  d«*e»  sfC 
become  a  contempt  bv  beiiitf  refMi^-ii  \o  l^r  sork. 
The  Court  must  consifler,  wiifiiiHi  itie  uamsi 
for  my  lord  mayor's  cominuineni  lAitiewsr- 
rant  of  the  Speaker  as  s|)eaker  ol  ihr  Hosw 
of  Commons,  as  sir  Fletcbfr  Norton  may  set 
in  a  double  capacity.  (Here  it  seems  there 
was  laughter.) 

L.  C.  J.    Be  Gr<y.— Sir  Fletcher  Nertoe 

signs  himself  S|>eakei . 

Serj.  Jcphson, — His  sitrning  himself  Speebr 
will  not  help  the  warrant,  it  tbe  cause  is  Bit 
sufficient ;  and  the  Court  may  rather  suMNtf 
the  mistoke  committed  by  sir  Fletcher  Noitei 
in  his  private  capacity,  than  by  tbe  House  if 
Commons.  Suppose  some  future  speaker,  if 
some  future  House  of  Coinmona,  should  reeiM 
in  his  warrant,  that  the  Houae  of  Coosaetf 
had  adjudged  it  a  breach  of  privilege,  and  ea- 
tempt,  to  sue  out  a  statute  of  bankrupt  ^Mb 
one  of  their  members,  which  by  act  of  psiV^ 
ment  any  one  is  permitted  to  do ;  niid  shsuU  ii ' 
consequence  eofltmit  m  penoa  for  sack  l^i 


1 145]       on  a  Contmiiment  by  the  Home  nf  Commons.       A,  D.  1771. 


[1H6 


act:  if  tlie  person  was  broii^ltl  hy  writ  of  Hti- 
be«s  Corpus  M^te  tiiis  Courl,  would  nut  the 
Court  t«ko  cog'niztoce  of  the  eotriRiilmeni  f 
WouUI  they  not  delermine  it  no  breach  ol*  pri- 
iritegr?  Are  acts  of  parliam^ot  of  lest  force 
lh«fi  ftuch  t  rccitnl  in  a  speaker^s  warrant  ? 
8oppQS«  <i  person  ts  cornmiiteil  by  a  timiUr 
vnrraiit,  for  proceethog'  according  to  act  of  par- 
Itttuient  Btniiost  a  member  of  the  House  m  an 
aclioti  of  debt ;  ahall  he  bare  no  remedy  from 
Ibtlaw,  wbicb  led  bitn  into  the  s u[ip(»sej  trans- 
gr«n*oci?  Suppose  a  justice  of  |i«are  should 
Qaannit  n  meniber  of  the  House  of  Cotumons 
^  lorlreason,  felony,  or  breach  of  the  peace^  and 
■f^tfieiiker's  warrant  should  recite  it  to  be  a 
^^Blenipt  \  will  this  Court  say,  they  can  take 
^B  oogQi/.aoce  of  such  a  comroitmeni  bv  the 
Hoitte  of  Comnioni }  8up|)0Ke  nit  the  orficers 
of  ibia  Cnnrt  should  l;e  recitod  in  the  speaker's 
warrant  to  be  in  contempt,  for  eHeruiing  the 
prooeas  of  this  Court,  will  this  Court  give  do 
r^cnetly  ;  and  must  this  and  every  other  eourt 
of  justtce  be  annihilated,  whenever  the  speaker's 
warrant  declares  ull  iu  offictra  in  contempt  ? 
How  is  it  possible  to  distini^uish  tbe  present 
case  from  thoie  I  have  mentioned,  if  yon  must 
not  examine  the  cnuie  returned,  hut  say  it  lh 
■uifideiit  if  a  eontem|»t  \^  tharged  r*  8erjeant 
Uawktos,  in  bis  'id  vol  tlO,  givfs  us  clear 
enough  hia  thoughts  ujHjn  this  snhject.  He 
•ays  there,  (amoii^  other  things)  that  if  a  sub- 
ject should  be  cumuiitted  by  either  of  the 
flou«ra  of  parhantcnt,  it  cannot  be  imagined 
that  tJ»e  law,  which  favours  nothing  more  than 
the  liberty  of  the  subject,  should  yi*'e  us  a  re- 
medy against  commitmenis  by  the  king  him* 
■air,  appearing  to  be  illegal,  and  give  us  no 
Diatiner  of  redress  against  a  comniitmeDt  by 
our  fellow -subjects,  ecjually  appearing  to  be 
unwarranted. 

I  ttiink  I  have  now  sufficiently  cleared  this 

MM  from  all  the  ot>jections  that  cao  l»e  hnju^ht 

Its  lieing  in(|uired  into.     The  tpiesiion 

V  is,  whether  on  the  return  there  ap- 

sufficrent   cause  of  detention  ?     Three 

are  mentioned,  and  all  urged  as  breaches 

privileife.     1.   For  discharging  a  printer ;  2, 

for  having  signed  a  warrant  {or  the  commit* 

•iient  of  the  messenger;  and,  3,  lor  holding 

him  to  bail. 

To  make  the  lord  mayor  guilty  of  the  first 

0|l|»pciaed  cootenijit,  it  ought  surely  to  appear 

to  tli€  Court)  that  Miller  the  printer  was  in  the 

legal  custody  of  the  mefisenger.     Now,  Miller 

iieftr  was  iu  the  legal  custody  of  the  mesfiien- 

|rer  \  for  the  warrant  to  take  up  Mitler  was 

^ifigcted  to  the  Serjeant  at  Arms  of  the  House 

,or  his  deputy,  and  not  to  the  niea* 

•o  that  Miher  was  in  the  illegal  cos- 

of  the  meiw^nger,  therefore  the  lord  mayor 

right — ^Miller  was  ordered  into  the  custody 

tieijeatit  at  Arms,  or  his  deputy  ;  but  the 

appears  upon  the  return,  in  the  recital 

oritf',  for  that  intimates,  that  he  was 

beii  into  ciMlody  bv  the  mciDsengLr,  hy  virtue 

Ifba  wavTiot  of  tie  Speaker  ot  tl»e  House, 

ilii4«r  Ukt  or^er  of  ib«  IJouse,    IMUIer 


was  taken  into  custody  by  the  mct&enger  to  th« 
citv  of  lx>ndon.  neither  the  Serjeant  at  Armi 
orlbi^  deputy  being  prvnenl.     The  mei»senger,  I 
I  say,  was  guilty  of  false  imprUonment,  bavjn^  i 
no  warrant  directed  to  himself,  nor  acting  in 
aid  and  assistance  of  the  8erjeant  at  Arms,  or  I 
his  dcfiuty^  to  whom  the  warrant  to  take  up 
Miller  was  directed,  for  neither  of  them  were  i 
present ;  so  that  if  an  action  of  falKe  imprisou* 
ment  was  to  be  brought  against  ihe  messenger,  i 
he  could  not  justify  what  he  has  done :    and  if  J 
he  cannot  justify  in  an  aclioo  of  false  impriseon* 
ment,  how  could  he  justify  before  the   lord  I 
mayor?     As  for  the  other  supposed  contempt,  | 
of  si^rning  a  warrant  againtit  the  messeoger, 
and  holding  him  to  bail ;  the  messenger  liail 
been  guilty  of  an  asaaolt  and  false  imprison- 
meut,  in  taking  Miller  the  printer  into  custody, 
in  the  city  of  London,  without  any  legal  war- 
rant or  authority  :   what  contempt  is  it  to  sign  ( 
a  warrant  against  the  messenger  ? 

Mr.  Just.  Gould. — The  messenger  was  com* 
mitte^i  lor  having  executed  a  warrant  of  the  , 

Speaker. 

8erjeaDt  J^^Aton,— That  does  not 
appear ;  your  lordships  cannot 
know  that ;  for  the  return  only 
says,  for  signing  a  warrant  against 
t he  messenger.  For  theso  reasoot, 
I  pray  the  lord  mayor  may  be  dticbargetl  oul  j 
af  I  he  custody  of  the  lieuteoaut  of  tbe  Tower  | 
of  London* 


turn,  n  lift 
♦•ff am  for 
Ihe  cunnlt" 
ittrjai  M  fltt 


Opinion  ttt 
Ihe  cuurL 


L.  C.  J,    J>e  Gffy~\t  either 
myself  or  any  of  my  brothers  on 
the  bench,  had  any  doubt  in  this 
oase,   we  should  certainly  have  taken    some  \ 
time  to  conaider,  before  we  had  given  our  opi- 
nions ;  but  the  case  seems  so  very  clear  to  ui  I 
all,  that  we  have  no  reason  for  delay. 

The  writ  by  which  the  lord  mayor  it  now 
lirought  Irefore  us,  i^  a  Habeas  Corpus  at  com«  ! 
inon  law,  for  it  is  not  signed  ptr  it  at  u  turn,     f|  j 
is  called  a  prerogative  writ  for  ihe  king  ;  oral 
remedial  writ:   and  this  writ  was  properly  ad*1 
vised  by  the  counsel  lor  his  lordship,  bt*caus#.| 
all  the  judges  (including  Holt)  agreed,   that! 
aoch  a  writ  as  ihe  present  case  required,  is  i 
within  the  btnlute.     This  is  a  writ  by   which  j 
the  Muhject  has  a  right  of  remedy  to  be  dia*  | 
charged  out  of  custody,  if  he  hath  been 
mittrd,  and  is  detained  contrary  to  law  ;  there- J 
fore  the  Court  must  consider,  Mrhctlier  theau«] 
thority  commitimg,  is  a  l^gal  authority.      If  I 
tbe  commitment  is  made  by  lho»e  who  havej 
authority  to  commit,  this  Court  cannot  dia«{ 
charge  or  bail  the  party  cmnmiited  ;  nor  i 
this  Court  admit  to  bad,  one  charged  or 
Rittted  in  execution.     Whether  the  authoritjrl 
committing  the  lord  mayor,  is  a  legal  authorityl 
or  not,  mti)»t  b**  adjudged  by  the  return  of  Hie 
writ  now  before  ihe  ConrL     The  return  tiam 
the  commitment  to  be  hy  the  Houae  of  Com* 
mons,  for  a  breach  al'  pnvii«>ge,  which   in  al»o 
•tated  ill  the  return  ;  and  thia  breach  of  privi* 
t«ga  or  oootoiupt  ti»  ii  tht  cottoadL  %^  ^c^^ 


1147] 


11  GEORGE  III. 


Case  of  Brass  Crosby,  esq* 


[1148 


deeciibed  ii»  threelbld ;  diicbarguig  a  printer  lo 
custody  of  a  meiwii^r  by  order  of  tne  House 
of  CkNomone ;  signiog  a  warraot  for  the  com- 
mitment  of  the  messeagcr,  and  holding  him  to 
bail ;  that  if,  treating  a  iiiessen(|^r  of  the 
House  of  Commons  as  acting  criminally  in  the 
execution  of  the  orders  of  that  House.  In 
order  to  see  whether  that  House  has  authority 
to  commit,  see  Co.  4  Inst.  23.  Such  an  as- 
sembly must  certainly  have  such  authority ; 
and  it  is  legal,  because  necessary.  Lord  Coke 
says  they  have  a  judicial  power ;  each  member 
has  a  judicial  seat  in  the  House :  he  speaks  of 
matters  of  judicature  of  the  House  of  Com- 
mons, 4  Inst.  S3.  The  House  of  Commons, 
without  doubt,  have  power  to  commit  persons 
axamined  at  their  bar  touching  elections,  when 
they  prevaricate  or  speak  falsely ;  so  they  have 
for  fcveaehes  of  privilege;  so  they  have  in 
many  other  cases.  Thomas  Long  gave  the 
mayor  of  Westbury  4/.  to  be  elected  a  burgess : 
he  was  elected,  and  the  mayor  was  fined  aod 
imprisoned,  and  Long  removed.*  Arthur  Hall, 
a  member,  was  sent  to  tlie  Tower,  for  publish- 
ing the  conferences  ot*  the  House.  4  Inst.  23. 
Thispower  of  committing  must  be  inherent  in 
the  House  of  Commons,  from  the  very  nature 
of  its  institution,  aud  therefore  is  part  of  the 
law  of  the  land.  They  certainly  always  could 
commit  in  many  cases.  In  matters  of  elec- 
tbns,  they  can  commit  sheriffs,  mayors,  offi- 
cers, witnesses,  &c.  and  it  is  now  agreed  that 
they  can  commit  generally  for  all  contempts. 
All  contempts  are  either  puuishable  in  the  Court 
contemned,  or  in  some  higher  court  Now  the 
parliament  has  no  superior  court ;  therefore  the 
contempts  against  either  house  can  only  be 
punished  by  themselves.  The  slat.  1  Jac  1, 
cap.  13.  sect.  3,  sufficiently  proves  that  they 
have  power  to  punish:  it  is  in  these  words: 
▼iz.  <  Provided  alwayt;,  that  this  act,  or  any 

*  thing  therein  contained,  shall  not  extend  to  the 

*  diminishing  of  any  punishment  to  be  hereafter 

*  by  censure  in  parliament  inflicted  upon  any 

*  person  which  hcreBf\er  shall  make,  or  procure 

*  to  be  made,  any  such  arrest  as  is  aforesaid.' 
8o  that  it  is  most  clear,  the  legislature  have  re- 
cognised this  power  of  the  House  of  Com- 
mons. 

In  the  case  of  the  Aylesbury  men,  the 
counsel  admitted,  lord  chiet'justice  Holt  owned, 
and  the  House  of  Lords  acknowledged,  that 
the  House  of  Commons  bad  power  to  commit 
for  conteoipt  aud  breach  of  privilege.  Indeed, 
it  seems,  they  must  have  power  to  commit  for 
any  crime,  because  they  have  power  to  impeach 
for  any  crime.  When  the  House  of  Com- 
mons adjudge  any  things  to  be  a  contempt,  or  a 
breach  of  privilege,  their  adjudication  is  a  con- 
viction, and  their  commitment  in  consequence, 
is  execution ;  and  no  court  can  discharge  or 
bail  a  pet  sou  that  is  in  executiou  by  the  judg- 
ment of  any  other  court.  The  House  of  Com- 
mons therefore  having  an  authority  to  commit, 
and  that  commitment  being  an  execution,  the 

«  See  rol.  6,  p.  liSl. 


qnettion  is,  what  can  this  court  do  ?  It  can  di 
nothing  when  a  person  is  in  exccntioD  by  iht 
jud^ent  of  a  court  having  a  oompotent  jarii* 
diction :  in  aueh  case,  this  court  b  aoi  a  cevt 
of  appeal. 

It  IS  objected,  1.  That  the  Borne  of  Coa- 
mens  are  mistaken,  for  that  they  bftTc  BOtlUi 
power,  thia  authority  ;  S.  That  aoppoaisif  Ik^ 
nave,  yet  in  this  case  they  have  notanii 
rightly  and  properly ;  and,  3.  Tliat  the  osoi- 
tion  of  their  orders  was  irregular.     Id  onkv  ll 
judge,  I  will  consider  the  practice  of  the  cavil 
in  common  and  ordinary  casea.    1  do  not  !■! 
any  case  wliere  the  couru  have  taken  cspi- 
zance  of  such  execution,  or  of  commlUwiii 
of  this  kind :  there  is  no  precedent  of  Wci^ 
minster- hall  interfering  in  auch  a  case,    la  m 
J.  Paston's  case,  13  Rep.  there  is  a  case  ciMi 
from  the  year-book,  where  it  is  bdd  tliat  cvof 
court  shall  determine  of  the  privile^  of  thil 
court :  besides,  the  rule  is,  that  the  cowt  if 
remedy  must  judge  by  the  same  as  the  csart 
which  commits.    Now  this  court  cannot  tdb 
cognizance  of  a  commitment  by  the  Hoeieif 
Commons,  because  it  cannot  judge  by  thesaM 
law ;  for  the  law  by  which  the  Commons jnte 
of  their  privileges  is  unknown  to  ua.    If  Im 
couit  of  Common- Pleas  should  comoiita^- 
son  for  a  contempt,  the  court  of  K.ing'a-MM 
would  not  inquire  into  the  legality  or  pirtirahr 
cause  of  commitment,  if  a  amtempt  wasn- 
turned  ;  yet  in  some  cases  the  court  of  King's- 
bench  is  a  court  of  inquiry,  but  in  tbia  case  ii 
only  co-ordinate  with  this  oourt.     Id  the  cmi 
of  Chambers,  [Cro.  Car.  168,  and  toL  S,a 
373,  of  this  Collection,]  Chambers  was  broag|M 
up  by  Habeas  Corpus  out  of  the  Fleet;  sadil 
was  returned,  that  he  was  committed  by  vartsi 
of  a  decree  in  the  Suir-Chamber,  by  reaaoa  rf 
certain  words  he  used  at  the  council- table,  ka, 
for  wliich  he  was  censured  to  k>e  commiiled  is 
the  Fleet,  till  he  made  his  submission  at  iW 
council-table,  and  paid  a  fiue  of  S,000/.  and  ai 
the  bar  he  prayed  to  be  deUvered,  because  tlu 
sentence  was   not   warrsnied  hy  any  law  m 
statute  :  for  the  statute  3  Hen.  7,  which  is  Ik 
foundation  of  the  court  of  Stsr-Chamber,  dolh 
not  give  tbem  any  authority   to  punisb  (m 
wordd  only.     But  all  the  court  informed  hiai, 
that  the  court  of  Star-Chamber  was  not  crecid 
by  the  stat.  3  Hen.  7,  but  was  a  court  onsj 
years  before,  and  one  of  the  moat  high  aod  bs- 
nourable  courts  of  justice ;  and  to  dehver  oss 
who  was  committed  by  the  decree  of  one  if 
the  courts  of  justice,  was  not  the  usage  of  thil 
court ;  and  therefore  he  was  remanded.    The 
courts  of  B.  R.  or  C.  B.  never  discharged  say 
person  committed  for  contempt,  in  not  answer* 
uig  in  the  court  of  Chancery,  if  the  return  wsi 
for  a  contempt.     If  tlie  Admiralty  court  com- 
mits for  a  contempt,  or  one  be  taken  up  uA 
committed  on  an  Excommunicato  CapieadSi 
tliis  court  never  discharges  the  peraoea  ca»* 
mitted.    Formerly,  when  many  abuses  wcra 
committed,  and  the  people  could  uat  ebCain  a 
remedy,  the  subject  waa  not  oontenled  wilh  iha 
anctcnt  Habeas  ikirpusi  but  did  Mt  cufiMi 


1149)       OK  a  Cummiimeni  hij  the  Haute  nf  Comm&tu.       A.  D.  1771. 


[1150 


of  the  eotiHs  tbr  refusiof;  them  vrhat  they 
ooiilil  not  Ky  law  gt»nt  Ihtm  ;  mitead  of  tlmt, 
tl»»y  •ritigbt  r«dr«si  by  petiticio  totheihrone. 
In  rbirl  justice  Wilmot's  time,  a  person  ww 
braui;lit  by  Habeai  Corpus  before  Ibis  court, 
who  b«d  been  conimiUe*!  by  tbt  ooort  ot  Cbio- 
icry  of  Durham.  That  court  being* oompeteolt 
■»ilbtt%iiM4  jiH-isdiciion^  the  man  if  as  doI  dis* 
el»  1  recommiUed.     How  then  can  we 

4o  III  in  the  present  case,  when  die  law 

by  wliicb  ihe  lorJ-mayor  m  committee},  is  diffe- 
reol  troni  ihe  law  by  h  hich  be  seeks  to  be  re* 
1l«t«d?  fie  iscumniitted  by  ibe  law  of  parba- 
BMlf  tnd  yet  be  would  bare  redress  from  the 
OMMiioa  law.  Tbe  law  of  parbament  ia  only 
Jevswd  10  parltament>men»  by  experience  in  (be 
HouiM?.  Lord  Coke  says,  every  man  looks  for 
h,  but  f«»w  can  find  it.  Tbe  House  of  Corn- 
only  know  bow  to  act  within  their  own 
,  We  are  not  a  court  of  appeal.  We  do 
know  c<erl»in)y  tbe  juriadictioa  of  the 
Uou^e  o^  Con  I  Ti  ions.  We  cannot  judge  of  Ihe 
]aw9  and  iiHwIoires  of  the  House,  because  we 
tiAve  DO  knowledp:  of  those  laws  and  privi- 
leirea.  We  cannot  judge  of  the  contempt* 
ibereof :  we  caunot  judj^e  of  the  pumalttnunt 

1  wiab  we  had  some  code  of  the  law  of  par- 
fiafiiait ;  but  till  we  baveaucli  a  code,  it  is  iui- 
p09«ih)e  we  Hhouhl  be  able  to  jude^e  of  it.  Per* 
Uapa  a  con|i2ni|it  iij  the  House  of  Commons,  in 
tli'  '".  ly,  in  this  court,  and  in  tbe  court  of 
I'  i  ly  be  very  different ;  therefore  we 

^e  of  it»  but  every  court  mu«l  be 
»f  it«  own  contempts.  Besides,  ai 
,,*.  V-*".*  t-innot  {JO  out  of  the  return  of  ibis 
writ,  how  can  we  io€|uire  into  the  trutli  of  the 
foet,  ai  to  the  nature  of  th*:  contempt  ?  We 
iiave  no  m»'un»  of  tryinif  whettier  the  lord* 
iriAvor  did  ri||^hi  or  wrong.  Thi«  court  cannot 
-n  a  jury  to  try  the  matter.  We  cannot 
I  :  9  1,  lie  into  the  tact.  Here  are  no  parties  in 
illation  liefore  tbe  court.  We  cannot  call  in 
body.  We  cannni  bear  any  witnestea,  or 
■  *oni  of  wjtnessrj,  W^e  cannot  issue  any 
We  are  even  now  heariocf  eT  partc^ 
witliout  any  counsel  on  the  contrary  aide. 
iln»  if  we  could  determine  upon  tbe  con- 
apis  of  any  other  court,  so  might  the  other 
urti  of  Westminster' ball ;  and  what  con fu- 
would  then  ensue!  none  of  u§  knowing 
'  by  which  persons  ar^  committed  by  tbe 
t*t  Commons.  If  three  persons  were 
for  the  same  breach  of  privilege, 
I  severally  to  different  courts,  one 
ri '  fWrbaps  would  bail,  another  court  dis* 
iri^,  a  third  te-commtt 
Two  objections  have  been  made,  which  I 
nwn  hnyf  trreat  weight ;  becau«:e  they  bold 
(  10  all  possible  cases,  conse- 
i  important  miscbief.  1st,  ft 
^saiiJ,  \iVA\  \\  the  righta  and  privileges  of  pur- 
ICD^nt  are  Irgal  right^i  tor  th»t  very  reason 
Mr  Court  tiMoit  lake  notice  of  tbem^  because 
lliiry  are  UgAl  And  2dly,  If  the  law  of  tiar* 
|niii«Ai  is  part  of  the  law  of  the  lund,  tbe  juugea 
\  take  cognisance  of  one  part  ol  tbe  law  of 


tbe  land,  as  wet)  as  of  ibe  other.  But  tJiesc 
objections  will  not  prevail.  There  are  two  torl^ 
ofprivileges  which  ought  never  to  be  confouoi 
ed  \  personal  privilege*  and  the  privilege  b< 
Inttging  lo  the  whole  collective  body  of  that  aii 
aembly.  For  instance,  it  is  the  privilege  of  everf] 
individual  member,  not  to  be  arrested.  If  he  wad 
arrested,  before  the  sUt.  12  &  13  W.  3,  th? 
method  in  Westminster-hall  was,  to  discharge 
btm  by  writ  of  privdege  under  the  great  seal, 
which  was  in  tbe  nature  of  a  Supersedeas  to 
the  proceedings  I  and  as  soon  as  it  came  into 
the  court  of  R.  R.  and  was  pleaded  there,  then 
it  became  a  record,  and  the  pleading  Concluded, 

*  ai  curia  domini  regis  placi turn  prsdictum  cog^ 

*  noscere  vclit  ant  debeat.*  The  staL  U  &  12 
W.  :i,  has  ahcred  this,  and  there  is  now  no  occa« 
«ion  10  pleatl  the  privilege  of  a  member  of  par- 
liament. aStrnn.  985.  Holiday  et  al*  rcriuf 
colonel  Pitt.  There  is  a  great  clilfcrence  be- 
tween matters  of  privilege  c-oming  incidentally 
before  the  Court,  and  lieing  the  point  itself  di- 
rectly belbrethe  Court.  In  tbe  iirst  case,  the 
Court  will  take  notice  Mi'  them,  becattse  tt  is 
necessary,  in  order  to  prevent  a  failure  of  jus- 
tice. As  in  lonl  Banbury's  case,  where  the 
court  of  King*s-t>encb  iletermined  against  the 
determination  of  the  House  of  Lords :  but 
iu  that  case  Ibey  considered  the  legality  and 
validity  of  the  letters  patent,  without  re^rding 
the  other  right  of  %,  seat  in  the  House  ot  Lords, 
with  which  theCourtdifl  not  concern  therotetvej. 
The  counsel  at  the  bar  have  not  cited  one  case 
where  any  court  of  this  hall  ever  determined  a 
matter  of  privilege  which  did  not  come  inci- 
dentally before  them,  if  a  question  is  to  be 
determined  in  Ibis  court  touching  a  descent, 
whereby  property  js  to  be  determined,  and 
which  depends  upon  legitimacy ;  that  ia,  whe- 
ther the  father  and  mother  were  married  law- 
fully ;  this  court  must  determine  by  the  bishop' 
certificate.  But  in  some  cases,  where  le^iti* 
macy  of  marriage  does  not  come  in  question, 
but  cohabitation  only  for  a  great  leogtb  of  time, 
which  is  evidence  of  a  marriage,  comes  in  ques- 
tion, this  Court  will  determine  according  to  the 
verdict  of  a  jury,  although  the  courts  of  West* 
minster- hall  go  bv  a  JifTereot  rule  from  tbe 
spiritual  courts,  but  the  present  case  diffen 
much  from  those  which  the  Court  will  deter- 
mine; because  it  does  not  come  incidentally 
before  us,  but  is  brought  before  us  directly,  and 
is  tbe  whole  point  in  question ;  and  to  determine 
it,  we  must  supersede  the  judgment  and  deter- 
mination of  the  House  of  Commons,  and  m 
commitment  iu  execution  of  that  judgment 

Another  objection  has  been  made,  wbich 
likewise  holds  out  to  us,  if  pursued  in  all  its 
possible  cases,  some  dreadful  consequences  % 
and  that  is,  t lie  abases  which  may  be  made  by 
juriiidictions  from  which  there  is  no  appeal,  and 
for  which  abases  there  is  no  remedy :  but  thi« 
h  unavoidable ;  and  it  is  belter  to  lemve  lOiDe 
courts  to  the  obligation  of  their  oaths.  In  tbt 
caae  of  a  cnmmitment  by  this  Court  or  the 
RingVbeueb,  there  is  no  appeal.  Stippoae 
tbe  Court  of  U.  (t  tetf  an  enccmi^  ^%  ^^^ 


I 


1151]  11  GEORGE  IIL 

a  nMiD  for  a  uitdeineaiior,  there  is  no  remedy, 
DO  appeal  to  any  other  coort  We  most  db- 
pend  opon  the  diicretion  of  aotnecourte.  A 
man  not  lon^  a^o  wai  fenteneed  to  stand  in 
the  pillory,  by  this  court  of  Common  Pleas,  for 
a  contempt.  Some  may  think  this  very  bard, 
to  be  done  without  a  trial  by  jury ;  but  it  is 
necefsary.  Sitppote  the  courts  should  abuse 
their  jurisdiction,  there  cau  be  no  remedy  for 
this :  it  would  be  a  public  ipieraoce ;  and  re- 
drem  must  he  sought  from  the  legixlatnre.  The 
laws  can  nerer  be  a  prohibition  to  the  houses 
of  parliament ;  because,  by  law,  there  is  nothing 
superior  to  them.  Suppose  they  also,  as  well 
as  the  courts  of  law,  should  amise  the  powers 
which  the  constitution  has  giren  them,  tliere 
is  no  redress ;  it  would  be  a  public  grievance. 
The  constitution  has  provided  checks  to  pre- 
vent its  happening ;  it  must  be  left  at  krge ; 
it  was  wise  to  leave  it  at  large:  some  per- 
sons, some  courts,  must  be  trusted  with  dis- 
cretionary powers  ;  and  though  it  is  possible,  it 
is  in  the  highest  degree  improbable,  that  such 
abuses  should  ever  happen ;  and  the  very  sup- 
posal  is  answered  by  aeneant  Hawkins,  in  ine 
place  citeil  at  the  bar.  .\s  for  ih6  case  of  the 
Chancery  committing  for  crimes,  that  is  a  dif- 
ferent thing,  because  the  Chancery  has  no  cri- 
minal jurufliction ;  but  if  that  court  commits 
for  contemptt,  the  persons  committed  will  not 
be  discharged  bv  aiiv  other  court.  Many  au- 
thorities may  be  drawn  from  the  reign  of 
Charles,  hut  those  were  in  times  of  contest. 
At  present,  when  the  House  of  Commons  com- 
mits for  contempt,  it  is  very  necessary  to  state 
what  is  the  particular  breach  of  privilege ;  but 
it  woohl  be  a  sufficient  return,  to  state  the 
breach  of  privilfge  generally.  This  doctrine 
is  fortified  by  the  opinion  of  all  the  judges,  in 
the  case  of  lord  Sliaflesburv,  and  1  never  heard 
this  decision  complained  of  till  1704.  TU«ugh 
they  were  times  of  heat,  the  judges  could  have 
no  motive  in  their  decision,  hut  a  r^'Sfard  to  the 
laws.  The  houses  disputed  about  jurisdiction, 
but  the  judges  were  not  concerned  in  the  dis- 
pute. As  lor  the  present  case,  I  am  perfectly 
satisfied,  that  if  lord  Holt  himself  were  to  have 


Case  ofBrau  Cfodfy^  etfm 


[1158 


detomined  it,  tbe  .lord-nnynr  voold  be  re- 
manded.  In  the  case  of  Mr.  Manny,  the 
judges  could  not  bevlate  cooecroing  the  cia- 
lemplby  a  man  whordnaed  to  receive  bnsea- 
tence  in  a  proper  posture.  All  the  jndgei 
agreed,  that  be  must  be  mnaaded,  becaniebe 
was  committed  by  a  court  haviog  competcit 
jurisdiction.  Courts  of  justice  have  no  cscm- 
zance  of  the  acta  of  the  bounoa  of  porijianit, 
because  they  belong  *  ad  aliod  eaamcn.*  Ihsfe 
the  most  perfect  aatiifeetion  in  mv  own  miai 
in  that  determination.  Sir  Martin  Wright,  whi 
felt  a  generous  and  distinguisbed  warmth  Ar 
the  liberty  of  the  subject;  Mr.  Juntiee  Dcai- 
Kon,  who  was  so  free  from  connesioua  and  •■- 


bition  of  every  kind ;  and  Mr.  Justice  Fmur, 
who  may  be  truly  called  the  Magna  Chailiif 
liberty  ol"  persons,  as  well  as  fortnacn  ;  nl  thai 
revered  judges  concurred  in  this  point:  !•■ 
therefore  clearly  and  with  full  oatisfi^ctien  d 
opinion,  that  the  lord-mayor  must  ba  ic- 
manded. 

Just.  Nare».*  I  shall  ever  entertain  •  bmI 
anxious  concern  for  wliatever  regards  the  f- 
bert  V  of  the  subject.  I  hare  not  the  vaai^  u 
think  I  can  add  any  thing  to  the  wdghtsribt 
arguments  used  by  my  I^rd  Chief  Justice  mi 
my  brothers.  1  faiave  attended  with  tlie  otoMit 
industry  to  every  case  and  aignroent  that  \m 
been  produced,*  and  most  heartily  and  rmAf 
concur  with  my  Lord  Chief  Jnstioe  tod  mf 
brothers. 

The  Lord-Mayor  was  reamuded  to  tk 
Tower. 

*  The  Judgments  of  Mr.  Justice  GonU  sal 
IVIr.  Justice  Blackstooe  being  ioaertcd  at  Isife 
in  vol.  8,  pp.  S3  et  seq.  are  not  here  repeate4. 
Note,  in  p.  38,  I.  64,  by  an  accident  of  the 
press,  was  omitted  the  following  clause,  vii. 
**  that  lord  chief  justioe  Scroggs  thought  be 
m\ir\\i  be  safely  entrosted  with  the  power  of 
prohibiting  and  suppressing  such  puMicaliosi 
as  mi;;ht  give  him  offence."  See  the  Case  ol' 
Henry  Carr,  vol.  7,  p.  1111;  and  also  vol.  8» 
p.  ia7. 


I 

|ai 

N 


1153J 


Case  of  General  ffammts* 


A.  D.  1763. 


[1 151 


544.  Tlie  Case  of  John  Wilkes,  esq.  against  Robert  Wood,  esq. 
in  an  Action  of  Trespass.  Before  Lord  Chief  Justice  Pratt, 
in  the  Court  of  Common  Pleas,  Michaelmas  Term  :  SGeouge 
III.  A.D.  1763.    [LofFt's  Reports.] 

any  friTotous  or  do  pretence  at  all,  by  a  secre-* 
tary  of  state.  Mr.  Wilkes,  unconvicted  of  any 
offence,  has  undergone  the  punishment.  That 
of  all  offences  that  of  a  seizure  of  papers  was 


A.  D. 

John  Wilkes,  esq.  against  Wood. 

Toe  Case  of  General  Warrants. 

Middlaex  to  wit,  Dec.  6, 1763. 

At  the  court  of  Cominoo- Pleas,  at  West- 
Minsler.  Sittings  af^er  Michaelmas  term,  be- 
ibre  lord  chief  justice  Pratt :  Joha  Wilkes,  esq. 
ptoiotiff;  Robert  Wood,  esq.  defendant. 

Inm  action  of  trespass,  for  entering  the  plain- 
tiff's  bouse,  breaking  bis  locks,  and  seizing  bis 
pM»en,&c. 

The  plaintiff's  counsel  were,  serjeant  Gly  no, 
Mr.  Recorder  Evre,  Mr.  Stow,  Mr.  Wallace, 
Kr.  Dunning,  Mr.  Gardiner. 

The  defendant's  counsel  were,  solicitor-gene- 
nl  Norton,  serjeant  Nares,  serjeant  Da? y,  ser- 
JMOt  Yeatfls. 

Attorney  for  the  plaintiff,  Mr.  Phillips  of 
CooU-slf«et 

For  tbt  defendant,  Philip  Carteret  Webb, 
osq.  iolMitor  to  the  treasury,  and  Mr.  Secon- 
dary Baroet. 

The  Special  Jurt. 

Plukenet  Woodroffe,  esq.  of  Chiswick ; 
William  Baker,  esq.  of  Isleworth ; 
William  Clarke,  esq.  of  Edmonton  ; 
Jamca  Gould,  esq.  of  Edmonton ; 
Stephen  Pitt,  esq.  of  Kensington ; 
Nathaniel  IHirner,  esq.  of  Ilampstead  ; 
Jonathan  Richardson,  esq.  of  Queen*  Square ; 
John  Weston,  esq.  of  Hatton- Garden  ; 
•  Harry  Blunt,  esq.  of  Hation-Ganlen  ; 
Henry  Bostock,  esq.  of  Hatton-Garden  ; 
Jobo'Boldero,  esq.  of  Hatton-Garden  ; 
John  Egerton,  esq.  of  St.  John's-street. 

Nr.  Gardener  opened  the  case,  with  de- 
claring the  foundation,  that  on  the  30ih  of 
April  last,  Mr.  Woo<l,  with  several  of  the  kin^^'s 
messengers,  and  a  constable,  entered  Mr. 
Wilkes's  house ;  that  Mr.  Wood  was  aiding 
and  assisting  to  the  messengers,  and  ga?e  direc- 
tKMis  concerning  breaking  open  Mr.  Wilkes's 
kicks,  and  seizing  his  papers,  &c.  for  which 
Mr.  Wilkes  laid  his  damages  at  fire  thousand 
pounds. 

Serjeant  Glynn  then  enlarged  fully,  on  the 
particniar  circumstances  of  the  case,  but  re- 
marked that  the  case  extended  far  beyond  Mr. 
Wilkes  personally,  that  it  touched  the  liberty  of 
tfvry  subjectof  this  country,  and,  if  found  to 
be  legal,  wouki  shake  that  most  precious  inhe- 
tce  of  Bofflishmen.  In  vain  has  our  house 
I  dochired,  by  the  law,  our  asylum  and  de- 
if  It  if  capable  of  b«ioflr  ontercd,  upon 
VOL.  XIX. 


the  least  capable  of  reparation ;  that,  for  other 
offences,  au  acknowledgment  might  make 
amends ;  but  that  for  the  promulgation  of  our 
roost  prif  ate  coocems,  affairs  of  the  most  secret 
personal  natnre,  no  reparation  whatsoever  could 
oe  made.  That  the  law  never  admits  of  a  ge- 
neral search-warrant.  That  in  France,  or 
Spain,  even  in  the  Inquisition  itself,  they  never 
delegate  an  infinite  [/^.  indefinite]  power  to 
search,  and  that  no  magistrate  is  capable  of  dele- 
gating any  such  power.  That  some  papers,  quite 
ianooent  in  themselves,  might,  bv  the  slightest 
alteration,  be  converted  tocriminal  action.  Mr. 
Wilkes,  as  a  member  of  parliament,  demanded 
the  noore  caution  to  be  used,  with  regard  to  the 
seizure  of  his  papers,  as  it  might  have  been  na- 
turally supposed,  that  one  of  tbe  legislative 
Iwidy  might  have  papers  of  a  national  concern, 
not  proper  to  be  exposed  to  every  eye.  Wlien 
we  consider  tbe  persons  concerned  in  this  affair, 
it  ceases  to  be  an  outrage  to  Mr.  Wilkes  per* 
sonally,  it  is  an  outrage  to  tbe  constitution  it- 
self. That  Mr.  Wood  had  talked  highly  of  the 
power  of  a  secretary  of  state;  but  be  hoped  by 
the  verdict  he  would  be  brought  to  think  more 
meanly  of  it.  That  if  the  warrants  were  once 
found  to  be  legal,  it  would  fling  our  lit>erties 
into  a  very  unequal  balance.  That  thec«Hi- 
stitution  of  our  country  had  been  so  fatally 
wounded,  that  it  called  aloud  for  the  redtess  of 
a  jdry  of  Englishmen.  That  their  resentment 
against  such  proceedings  wa^  to  be  expresiied 
by  large  and  exemplary  damages ;  that 
trifling  damages  would  put  no  stop  at  all  to  such 
proceedings :  which  would  plainly  appear,  when 
they  would  consider  tbe  persons  concerned  in 
tlie  present  proaecutkm,  persons,  who  by  their 
duty  and  oflioe  should  bate  been  the  protectors 
of  the  constitution,  instead  of  the  violaters  of  it. 

Mr.  £yre,  the  Recorder  of  London,  then 
stood  up :  be  apologized  to  the  bench  for  ap- 
pearinff  in  the  present  cause,  considering  the 
office  ne  bore,  but  that  he  thought  it  was  a 
cause  which  affected  the  liberty  of  every  indi- 
vidual. [Lord  Chief  Justice  desired  he  would 
make  no  apology.]  He  then  observed,  that 
the  present  cause  chiefly  turned  upon  the  ge- 
neral question,  whether  a  secretary  of  state  has 
a  power  to  force  persons  houses,  break  open 
their  locks,  seize  their  |iaperi,  &c.  upon  a  liare 
suspicion  of  a  libel  by  a  general  warrant,  with- 
out name  of  tbe  person  charged.  A  strange 
question,  to  be  agitated  in  tl^  da)ft^  ni\x«^ 

4£ 


1155] 


S  GEORGE  ill. 


Cmu  o/Geturat  Wtamittt'^ 


[1196 


the  coDStiiutioD  is  so  well  fixed,  when  we 
ha?e  a  prince  upon  the  throne,  whose  virtues 
are  so  great  and  amiable,  and  whose  regard 
lor  the  subject  is  such,  that  lie  must  frown  at 
every  incroacho^ent  upon  their  liberty.  No- 
thing can  be  more  unjust  in  itself,  than  that  the 
proof  of  a  man's  guilt  shall  be  extracted  from 
ois  own  bosom.  No  legal  authoritv,  in  the 
present  case,  to  justify  the  action.  No  prece- 
dents, no  legal  ileterminations,  not  an  act  of 
parliament  itself,  is  sufficient  to  warrant  ao^ 
proceeding  contrary  to  the  spirit  of  the  consti- 
tution. 

Secretary  Williamson,  in  Charles  the  2d's 
time,  for  racking  an  illegal  warrant,  was  sen! 
to  the  Tower  by  the  House  of  Commons.  The 
jury,  he  observed,  had  no  such  power  to  com  • 
mit ;  he  knew  it  well ;  but,  for  his  part,  he 
wished  they  had,  as  he  was  persuaded  they 
would  exercise  it,  in  the  present  case,  as  it 
•ught  to  be. 

On  the  famous  certificate  in  queen  Eliza- 
beth's time,  how  far  a  man  might  be  detained 
by  a  warrant  of  a  privy  counsellor.  Hie  answer 
of  the  judges,  even  in  those  days,  confined  it  to 
high  treason  only,  and  the  power  to  arrest  to 
be  derived  from  the  personal  command  of  the 
king,  or  a  privy  counsellor.  He  then  congra- 
tulated the  jury,  that  they  had  now  in  their 
power  the  present  cause,  wnich  had  been  by  so 
much  art  and  chicanery  so  long  postponed. 
Seventy  years  had  now  elapsed,  since  the  Re- 
volution, without  any  occasion  to  enquire  into 
this  power  of  the  secretary  of  state,  and  he 
made  no  doubtbut  the  jury  would  effectually 
prevent  the  question  from  being  ever  revived 
again.  He  therefore  recommends  it  to  them 
to  embrace  this  opportunity  (least  another 
should  not  offer,  in  haste)  of  instructing  those 
great  officers  in  their  duty,  and  that  they  (the 
jury)  would  now  erect  a  great  sea  mark,  by 
which  our  state  pilots  miffht  avoid,  for  the 
future,  those  rocks  upon  which  they  now  lay 
shipwrecked.^ 

The  first  witness  on  the  prosecution  tias 
Matthew  Brown. — Says,  that  he  is  butler  to 
Mr.  Wilkes.  That  on  the  SOlb  of  April  last, 
about  nine  o'clock  in  the  morning,  Watson, 
Blackmore,  Money,  and  Mann,  king's  messen- 
gers, and  Chisholm,  a  constable,  came  to  Mr. 
Wilkes's  house.  That  WaUon  tbilowed  Mr. 
Wilkes  into  the  house,  and  Money  came  next; 
Blackmore  and  Mann  followed  after.  That  this 
witness  never  heani  them,  or  either  of  them, 
declare  their  business,  or  the  purpose  of  their 
Gfimiug.  That  as  soon  as  Mr.  Wilkes  was 
oarried  awav,  which  was  about  noon,  Mr. 
Wood  and  Mr.  Stanhope  came:  that  Mr. 
Wood  asked  Mr.  Watson,  **  Have  you  locked 
up  all  the  rooms  where  Mr.  Wilkes's  papers 
are?"  He  answered,**  Yes;  I  have  got  the  key 
ui  the  study."  That  Mr.  Wood  and  Mr.  Stan- 
livpe  then  went  into  the  parlour ;  the  messen- 
gers continued  waiting  in  the  passage.    That 

^  *  **  N.  B.  The  Recorder  shone  extremely." 


soon  after  Mr.  Webb  knocked  at  the  doer ; 
upon  its  being  opened  this  witnese  attempted  to 
stop  him,  but  he  rushed  io.  That  Mr.  WooA 
staid  that  time  about  half  an  hour ;  that  wha 
he  went  away  he  gave  orders  to  the  meesea- 
gers,  that  no  one  should  come  in  or  go  oat  til 
he  returned,  but  bade  them  lock  up  all  the  doon. 
That  he  came  back  again  in  about  an  hew. 
That  in  the  mean  time  several  of  Mr.  Wtlkcs'b 
friends  came,  viz.  Humphry  Cotes,  Gardiacr, 
Phillips,  Hopkins,  &c.  and  were  denied  adnal- 
Unce  by  the  constable :  that  Watson,  the  bsi- 
senger,  upon  being  called  apon  by  theee  gca- 
tiemen  to  produce  his  orders  for  rnoaing  uea 
admittance,  said  he  had  only  a  verbal  eider 
from  Mr.  Wood.  That  the  mcaaengeray  hew- 
ever,  did  at  last  permit  the  gentlemen  to  es«a 
in.  That  scan  after  lord  Temple  came ;  Ikst 
in  a  short  time  after  Mr.  Wood  retumcd,  sad 
appeared  to  be  very  angry  that  the  geotlvsa 
had  been  admitted,  **  Who  let  these  men  iaf" 
That  the  messengers  answered,  **•  They  wosU 
come  in."  Mr.  Wood  then  asked,  <'  Whs 
would  eume  in  ?"  Mr.  Gardiner  answered,  <*]t 
was  1,  Sir."  That  soon  after  that  Mr.  Wilkes^ 
friends  went  away ;  that  Mr.  Wood  then  calM 
for  a  candle,  which  was  brought  btm,  aad  be 
and  Mr.  Stanhope  then  went 'up  staira,  with 
Money  and  Blacknore,  the  messengers,  whs 
appeared  to  take  their  orders  from  Mr.  Wosd 
and  Mr.  Stanhope.  Tfiat  they  rMnwtsgtd  al 
the  papers  together  they  could  find,  in  sad 
about  the  room ;  that  they  (the  messengcit) 
fetched  a  8ack,.and  filled  it  with  papers.  Tbt 
Blackmore  then  went  down  stairs,  and  fdcbtd 
a  smith  to  open  the  locks.  That  Blaan,  a 
nief^enger,  then  came,  and  would  whisper  Mr. 
Wood,  who  bade  him  speak  out ;  be  then  stii 
he  broun^ht  orders  from  lord  Halifax  to  iciis 
all  manuscripts.  That  tlie  smith  then  came, 
nod,  by  the  <liroctiou  of  Blackmore,  the  mes- 
senger, opened  four  locks  of  the  lo%v«r  dravets 
of  a  bureau  ;  tlint  they  took  out  all  the  papcn 
in  those  drawers,  and  a  pocket-book  of  Mr. 
Wilkes^H,  and  put  them  all  into  the  sack  tofc- 
thcr,  and  then  sealed  up  the  sack.  That  tbii 
witness  was  present  during  all  this  time  ;  that 
the  messengers  were  ubedient,  and  paid  an  en- 
tire regard  to  the  directions  of  Mr.  Wood  ssd 
Mr.  Stanhope.  That  %vhen  Mr.  Wood  weal 
away  it  was  near  two  o'clock  in  the  nfterooos; 
that  Mr.  Wood,  upon  the  ivhole,  might  be  oeir 
two  hours  and  a  half  in  Mr.  Wilkt-s's  housr. 
That  no  kind  of  inventory  was  made  of  the 

Kapers  which  were  |>ut  into  the  sack.  Tbat 
Ir.  Stanhope  appeared  all  along  to  t»e  favour- 
able, and  frequently  bade  the  messengers  bi 
cautious  and  careful. 

Upon  his  being  cross  examined,  he  said. 
That  Mr.  Wilkes  was  carried  away  about  i 
That  Mr.  Wilkes  went  out  in  the  moi 
about  six,  and  returned  home  about 
o'clock.  That  Mr.  Hopkins  haii  been 
that  morning  before.  That  Mr.  Wood  dki  a^ 
solutely  and  positively  (this  witness  avcia  if 
order,  upon  his  going  out,  that  all  the  dONi 
f houkl  be  h>ck«r  up,  paclicHlvly  ^  ^^'^ 


1167]  WMfs  r.  JFfiod, 

4oor :  thti  Mr.  Wood  (oM  the  messengers  they 
knew  ttioir  onlem,  and  b»ile  theQi  execute 
them.  That  Ue  reraembers  Mr.  Stanhope  biil 
tbein  be  care  Cut  in  rum  in  tiding,  but  ikm^t  recol- 
lect Mr.  Wood  said  bo.  Thiii  Clii»Uolm,  the 
coQ&taMe,  held  the  »&ck,  whilst  the  ineasengers 
ftljed  it  with  |»apf?r».  That  Mr.  Wocid  was  not 
there  when  tlie  lucka  were  opened  :  he  now 
tayn,  Unit  Mr,  Wood  tiad  before  declared  thai 
the  locks  must  be  opened.  That  Mr,  8tdnhope 
Mtd,  to  be  lure,  the  locks  must  be  opened. 
That  Mr.  Wood  he  now  savs,  was  at  one 
lime  above  an  hour  in  Mr  Vvdken**  study. 
That  Mr.  Stanhope  wat  there  with  I^fr.  Wooit 
at  the  time  the  papers  were  carried  away. 
That  Mr.  Webb  was  {;one  away  some  time 

Richard  Schqfield  says,  that  he  is  a  h?ery 
serf  ant  to  Mr.  Wilkes  :  that  he  let  Mr,  Wood 
in  at  the  door  on  the  30th  of  April,  about  eleren 
o'clock  in  the  morning,  as  he  thinks,  to  the 
best  of  his  remembrance-,  that  Mr.  Wood  staid 
the  first  lime  about  a  quarter  of  an  hour.  He 
coofirms  in  general  the  last  witness.  That 
Wood  went  away,  and  returned  iu  about  an 
hour.  ThAt  tl»e  n»essenger,  upon  bein^  asked 
by  Mr.  Ganlioer  for  his  orders,  said  he  bad 
only  ferbal  oncn,  from  Mr.  Wood.  That  he 
can  give  no  account  of  what  pasised  up  stairs^ 
as  he  r>   I  ill  that  time  in  the  passage  be- 

low,    h  is  the  last  witne*tf  on  that  cir- 

cmiMitaiiir  111  \uv  messt'Oger,  MannV,  coming 
fromhrd  Halifax,  \^itli  fresh  orders.     That  a 

r -letter  caniP.  iu  the  mean  lime,  directed  to 
Wilke«,  which  the  messenger,  Watson,  re- 
ceifed^  and  would  not  deliver  till  Mr,  Wood 
rdturoed,  who  immediatfly  delivered  it,  un^ 
Opened  I  into  this  witness's  hands.  That  Mr. 
Wood,  when  he  went  awsy,  ordered  llie  doors 
to  Ue  kept  fast  locked,  particularly  the  street- 
4oor.  That  Hiackfnore  came  down  stairs,  and 
•aked  thi^  wituevs  where  1^1  r.  Wilkes ^a  smith 
Kveil,  and  be  answered  him  he  beheved  in 
Cb«Bpsidf*. 

t'pnn  liiii  btlng  cross-examined,  he  said, 
riiHi   Mf,  Woott  came  aboni  a  ijuaiter  of  an 

iir  olicr  Mr-  Wilkes  wss  carried  away  to  lord 

difttx.  That  Mr.  Wood,  Mr.  Stanhope,  the 
,o-cr.,,r..,-c  .. -Oi  the  const«bt«s  together 
wi  i^m,   whom   he   did   not 

Iij^  ,  '-.■-  i.i^  ,...M>u8  who  came  into  the 
houftc. 

iluffiuhTy  Cotet  «aya»  that  he  was  at  Mr. 
\^  '  SOlh  of  Apnt  la<^l,  iu  the  morning, 

•U:  'II  o'clock,  iiemg  itent  for  by    Mr. 

Wilkes.  That  Mr.  Woo«l  came  iu  bet  wee o 
twelve  and  one;  that  he  (this  witness)  had 
been  down  to  the  court  of  Common  Pleas,  to 
ap|dy  for  a  HiilH-a«  C'orpun,  and,  upon  his  re- 
turn to  Mr.  Wilkes^s  house^  wrn  told  that  Mt'< 
WTjIkes  was  not  at  home,  and  that  he,  Cote«, 
uin  '  '  nme  in  ;  this  wait  between  twelve 
an  iofk.     Me  demanded   the  reaaou 

Vi,^  i.v  v.iii^t  not  eome  iu,  and  by  wbosu  an- 
thority  the  dofir  was  locker).  The  man  at  the 
dour  an^wertd,  by  tbe  secretary  of  slaters, 
ffh9  Solicrtor  Gciicr»i  tiitimled  this  etidiuce, 


H.D.  1765 


[1151 


as  Mr.  Coles  did  not  declare  the  man's  nsme.1 
But  Cotes  then  said,  that  the  door-keeper  calleQ 
Watson,  the  messenger,  to  him  ;    who  said  he 
bad  liie  secretary's  verbal  order  Only,  hut  not 
a  written  one.     That  this  witness  did  then  in* 
sist  ujion  being  admitted,  and  did  accordingly 
enter  ihe   house.     That  Mr.  Worn!   presen»l| 
nfter  came  in,  and  said  with  anger,  **  What  dQ 
tlif^e  men  do  here?''    That  this  witness  iheil 
said,  **  What  business  have  you  here,  8ir  ?*'! 
Mr.  Wood  answered,  rhat  he  was  the  secretnryj 
tjf  state's  secretary.     That   this  witness  then 
said,  he  bad  nothing  to  do  with  the  serreur^ 
of  state,  nor  his  secretary  neither ;    that  hi^ 
name  was   Humphry  Cotes,  and  was  to  hi 
spoken  with  at  any  time.    Th^t  he  (this  wttf  _ 
tiess)  staid  at  Mr.  Wilkes's  house  till  past  two  ' 
o'cUick.    That  he  was  desired  by  Mr.  Wood 
to  be  present  when  Mr.  Wilkes^ s  papers  were 
sealed  up,  which  he  refused  to  do. 

The  Solicitor- General  did  not  cruss-examint , 
bim. 

Hichnrd  Uifphtnt^  esq.  says,  that  he  went  Uf^ 
Mr.  Wilkes  on  the  3CHh  of  April  last,  at  half 
an  hour  past  nine  o^cloek  in  the  morning,  and 
stniil  two  hours ;  found  then  no  kind  of  ol>* 
^traction.  That  Mr.  Wood  was  not  there  at 
this  time,  as  this  witness  verily  belicTes  ;  but 
thaf,  when  he  returned,  Mr.  Wood  had  beeo 
there.  Confirms  the  last  witness's  account,  of 
the  obstruci ions  to  his  entering  the  house,  at 
this  his  last  comings  Thnt  he  was  desired  to 
be  present  at  the  sealing  up  Mr,  Wilkes's  pa- 
pers, which  he  declined  doing. 

Arthur  Beardmore  says,  that  he  was  «o 
Westminsler-hsll  on  the  30th  of  April  last, 
and,  hearing  of  Mr.  Wilkes*s  arrest,  he  went  di- 
rectly to  his  house,  ind,  with  some  drfBculty^ 
gained  admittance.  Th:rt  when  he  gainetl  mQ* 
mittance,  and  came  into  the  parlour,  Mr.  Wood 
was  there,  altercating  with  the  last  witness,  Mr* 
Hopkins.  That  Mr.  Gardiner  and  Mr.  Cotei 
were  then  there.  That  lord  Temple  was  like- 
wise there.  That  he  (ihts  witness)  obserrini; 
much  confuiiou,  demanded  of  Mr.  Wood  lo 
shew  his  authority,  and  that  much  wrantfling 
then  ensued.  Thut  Mr.  Woetl  and  Mr.  Webb 
were  both  tlicre  at  this  lime.  That  Mr.  Wood 
intreated  the  company  to  believe,  that  the  se» 
cretaricic  had  acted  entirely  pursuant  to  the  ad- 
vice atid  direction  of  the  attorney  and  solicitor 
generals  ;  to  which  this  witness  answered,  thai 
he  very  much  doubted  it.  That  this  witneas, 
coming  into  the  parlour  ngain  through  the 
paasai^e,  saw  Sir.  Webb  standing  at  the  foot  of 
the  stuirv,  with  some  keys  in  his  hand,  which 
this  witness  did  presume,  ood  verily  did  l^tieve^ 
lo  be  some  of  Mr.  Wilkes's  keys  to  his  private 
e^cruloires  and  drawers,  That  Mr.  Wood  did 
dcDUe  him  (thiii  wilnets)  to  be  present  at  the 
sealing  up  Mr.  WilkeaV  papers,  which  he 
utu'i!  'it  to  ilo.  The  counsel  for  the 
prrl^  ihncd  examining  Mr.  Gardiner 

ami  ^... ',is,  (who  had  both  l^ea  present) 

on   account  of  their  k'lntf  employed  in   the 
cause  ;  and  therefore  re*t  here. 
The  SifiuUof  Gcfiir&t  ib^^a  stoo4\\^UktM2ft» 


1159] 


S  GEORGE  III. 


the  defence,  which  he  divided  into  two  pirts  ; 
liiid  first,  be  niaiiitained  the  plea  of  not  guilty ; 
but  if  the  jury  siionld  be  of  opinion  that  would 
not  stand  i^ood,  and  that  the  evidence  he  should 
brine;  would  not  be  capable  of  settin^f  aside  the 
evidence  al really  produced  in  court  on  the  other 
side ;  he  then,  secondly,  relied  on  the  special 
ju$tillicati<in.  He  was*  at  a  loss,  he  said,  to 
understand  what  Mr.  Wilkes  meant  by  bringing 
an  action  against  Mr.  Wood,  as  he  was  neither 
the  issuer  of  the  warrant,  nor  the  executioner 
of  it.  If  the  constitution  bad  been  in  such  an 
•gregious  manner  attacked,  why  nut  brinff  the 
Kcrelaries  of  state,  themselves,  into  court? 
Why  should  Mr.  Wilkes  commence  separate 
actions  agfiinst  each  person?  Is  Mr.  Wilkes, 
■t  any  event,  entitled  to  tenlbld  damages?  This 
was  the  first  time  he  ever  knew  a  private  action 
represented  as  the  cause  of  all  the  good  people 
of  England.  If  the  constitution  has,  in  any 
instance,  been  violated,  tlie  crown  must  be  the 
prosecutor,  as  it  is  in  all  criminal  cases.  The 
constitution  does  not  consiiit  in  any  one  particu- 
lar part  of  the  law ;  the  whole  law  is  the  con- 
stitution of  the  country,  and  a  breach  in  one 
part  of  the  law  is  as  much  a  violation  of  the 
constitution  as  of  another.  Though  so  much 
lias  been  said  on  the  other  side,  with  regard  to 
llie  iryurv  that  might  result  from  theproiTiuI- 
gatron  ot  secrets,  no  proof  had  been  brought  of 
•ny  thing  beinj;  promulgated  (hat  was  not  proper 
lo  be  so.  The  arguments  which  had  been 
used  against  seizing  of  papers,  to  iirocure 
proof,  were  fclo  Uc  «c,  unless  the  major  was 
denied  to  include  the  minor.  He  then  went 
upon  the  argument  touching  the  warrant,  and 
observed  that  these  warrants  had  been  issued  as 
far  back  as  the  courts  of  justice  could  lead 
tbem.  That  the  lite  act  of  parliament  of 
George  the  second  for  taking  up  vagrants  was 
a  general  Hcarcb-warrant,  and  he  nticr  kne%v 
it  was  ever  esteemed  an  infrini^eincnt  of  our 
constitution.  That  these  warrants  had  existed 
before,  at,  and  since  the  lUnoIulion,  and  had 
been  till  tiiis  case  unimpcaciK d  ;  that  if  so  con- 
tradictory to  the  constitution  of  this  country, 
they  could  never  have  remaine<l  to  this  time. 

fie  then  made  a  general  oljservalion  to  the 
jury,  that  it  was  their  duty  to  hear  the  cause 
(M>olly  and  dispassionately,  without  any  bias  to 
one  side  or  the  otiier.     He  then  went  on  to 


Case  of  General  Warrants—  [IIGO 

most  considerate  pertona  liow  Hiey  thonld  iMse 
passed  so  long  unnotical ;  that  h  had  auaekH 
private  persons,  pcfwms  in  public  stations,  wiiii 
their  names  written  in  full  length  ;  which  bad 
already  produced  blnodtfaed,  in  an  inslaan 
which  th«-y  all  well  knew :  and  what  faitbv 
fatal  consequences  might  result  from  tbae 
publications,  who  would  be  answerable !  it'  Mr. 
Wilkes  should  be  proved  to  be  tbe  author  sf 


these  papers,  and  of  that  libel  of  libela,  N*4i, 
(an  equal  to  which  he  defied  this  or  any  nihv 
age  to  produce)  if  he  should  be  proved  iste 
the  author  of  that  paper,  \Tbicb  he  was  coaft- 
dent  he  should  be  able  to  |irove,  to  tbe  <ull  »* 
tisfaction  of  the  court  and  jury  ;  in  tkat  caw, 
so  far  from  thinking  him  worthy  oC  excmplHy 
damages,  he  was  certain  they  wouhl  view  bia 
in  his  true  and  native  colours,  aa  a  most  vile 
and  wicked  incendiary,  and  a  sow^r  of  iiisui 
tion  amongst  bis  majesty's  subjecu.  He  tbn 
observed,  that  tlie  freedom  of  this  country  csa- 
sists,  that  there  is  no  man  so  high,  tliat  be  ii 
out  of  the  reach  of  the  law,  nor  aoy  raaa  « 
low,  that  he  is  beneath  the  protection  of  it. 

That  the  warrant  was  legal  in  itself  s  ibal 
the  authority  of  a  secretary  of  stale  was  siff- 
ciently  established.  That  damages  ahouMiA- 
ways'be  reckoned  according  to  the  injury  la- 
ceived :  a  jury  that  evt- r  acted  on  any  other 
principles  certainly  forswore  themaelves. 

Lonl  Hahfar^Uen  came  into  court,  aaJ 
being  sworn,  said,  that  he  did  receive  inforws- 
tion  concerning  N""  45.  That  he  did  .issat 
warrants  in  consequence  of  such  infornsstisa. 
That  he  did  desire  Mr.  Weston,  hi<  aecretsiy, 
to  go  to  Mr.  Wilkes's,  anil  see  that  tlic  bm- 
sengers  did  their  duty:  that  Mr.  Westoade- 
cline<l  it,  beseeching  his  lordship  to  excaw 
him,  on  account  of  his  weaknenes,  and  ill  stsie 
of  health  ;  that  he  then  did  desire  Mr.  Wos< 
to  go,  who  acconlingly  went.  That  he  \ni 
reason  ^to  believe  that  >Ir.  W'ilkes  was  tW 
author  of  N"  4b.  That  he  had  infbrinili« 
previous  to  the  apprehending  Mr.  Wilkes,  ao4 
his  lordship  believes*  to  the  btat  of  his  remem- 
brance, it  was  on  the  very  day  the  warml 
was  put  in  execution.  That  this  informatisB 
tended  to  prove  Mr.  Wilkes  the  author  cC 
N°  45 ;  but  he  cannot  pretend  to  diarge  bit 
memory  with  the  entire  contents  of  the  iBfo^ 
mation.    That  orders  were  gi^en  by  his  lord- 


make  remarks  on  tlie  evidence  which  had  been  !  ship  to  the  messengers,  but  he  declares  that  be 
given  by  the  plaintiff ;  remarked  that  theques-  cannot,  at  this  time,  pretend  lo  recollect  eilbfr 
tion  of  liberty  had  nothing  to  do  with  the  pre-  their  names  or  their  persons.  That  lbe« 
sent  cause,  which  only  respected  theseizureof  ,  orders  were  given  by  his  lordship  previous* 
papers.  That  the  messengers  went  bungling-  .  the  apprehension  of  Mr.  Wilkes. 
ly  about  their  business;  Mr.  Wood  was  only  |  Upon  the  Lord  Chief  Justice  ex  pressing  a  de- 
aent  to  M>e  they  did  their  duty.  I  sire  to  be  informe<1  by  his  lordship  conceriiH 

He  then  werit  on  to  make  remarks  on  the  \  the  nature  of  the  information  said  to  be  re* 
North  Briton,  N"  45.  That  it  was  a  libel  on  the  ceived  at  his  office,  and  about  which  bis  had* 
three  branches  of  the  legislative  l>ody.  King,  !  ship  appeared  rather  shy,  and  cautious  of  «i- 
I./)nb(  and  Commons ;  that  it  was  a  libel  of  such  tering  ui>on,  the  solicitor- ireneral  then  pia- 
a  nature,  that  when  it  was  before  the  two  '  duced  an  affidavit  of  Walter  Balff,  a  printer  il 
Houses  of  Parliament  not  one  single  person,  the  Old  Bailey,  which  was  read,  in  onkrH 
in  either  house,  ever  uttered  one  single  word  in  '  prove  Mr.  Wdkes  the  author  of  N*  45.  (fl 
defence  of  it  That  the  whole  of  the  North  cannot  recollect  the  whole  of  this  affidafid 
BritouswereofaucbaMtoreitbatltastotiiffhed    but  it  bad  in  general  a  tendeaoy  It  |M« 


1161]  n^ilkes  V.  IVpod.' 

Wilkes  the  aotlior  and  this  Balffthe  printer  of 

Upon  lord  Halifax's  beinnf  crost-examiDed, 
be  said,  that  Mr.  Weston  is  his  own  secretary, 
and  that  Mr.  Wood  was  lord  Ef^remoni's  se- 
oretarv.  His  lonUUip  was  asked,  ivhetber  he 
should  think  hiinselt'  then  authorized  to  com- 
mand the  secretary  of  lord  Eg:remont  to  do  any 
tbioir.  After  sonie  hesitation,  his  lordship  an- 
swered, not  without  cotisu  I ting^  lord  Egpremont. 
Said,  that  the  oAices  are  c  wi^  on  in  separate 
depart nents,  but  form  only  one  complete  se- 
cretaries office.  He  owns,  however,  that  each 
■seKlary  has  the  entire  choosing  and  appoint- 
■If  his  own  officers.  That  the  warrant  for  the 
■ppreliension  of  Mr.  Wilk^  was  issued  (as  he 
m^M  it,  which,  hemfr  explained,  si^niBes  made 
oot)  on  the  S26fh  of  April  last,  and  the  informa- 
Ifoo  be  DOW  Hxes  to  have  been  received  en  the 
S9th  of  April,  and  the  arreKting  Wilkes's  per- 
aoB  on  the  SOth  <hiy  of  April.  [N.  B.  His 
lorUiip  here  fairly  ackaowlefl^es  that  he  is- 
■std  die  warrant  three  whole  days  before  he 
>eceit>ed  any  information  at  all;  and  that 
durioip  llteve  three  days  tlie  warrant  lay  dor- 
■laiit,  whilst  tliey  were  upon  the  hunt  for  in- 
lellifirence.] 

The  kinf^'s  speech  at  the  close  of  the  last 
■easioa  of  parliament  was  then  read. 

Tlie  North  Briton,  N"*  45,  was  afterwards 


A.  D.  176S. 


[1162 


talrictjures  of  the  solicitor- ffeneral  then 
sued,  upon  the  heinousness  of  the  author'a 


TkoKMU  Cadell  says.  That  he  is  apprentice  to 
Andrew  MiHar,  a  liookseller  in  the  Strand  ;  that 
be  is  nearly  out  of  his  apprenticeship.  That 
Hr.  H  ilkes  called  there  in  the  summer  of  1769, 
and  left  word  with  him,  (this  witness)  that  his 
Master  should  advertise  a  new  imper,  shortly 
to  eome  out,  entitled  the  North  Ikiton,  and  to 
be  piihlishe<l  by  hiHi  (Millar) :  that  hfs  master 
did,  in  consequence,  advertise  it,  and  was  paid 
by  Mr.  Wilkes  the  sum  of  one  |>ound  eight 
■hillioipi,  for  udvertibeinents.  [N.  B.  The  re- 
mipl  was  protluced  in  court.]  That  his  master 
did  alierwards,  upon  considering;  the  affair,  de- 
cKne  publishinif  the  North  Briton  ;  saying;  he 
woold  publif^h  no  political  matters. 

Serjeant  Glynn  then  objocled  to  their  cfoing 
iBto  the  evidence,  to  prove  Mr.  Wilkes  the  au- 
thor of  other  papers,  which  had  no  respect  to 
tbe  paper  in  question ;  but 

The  Lord  Chief  Justice  allowed  it  to  be  a 
gofid  oorroboratin^f  chain :  but  observed,  if  they 
faile<l  in  the  last  link,  the  whole  would  fall  to 
the  inbound. 

William  Johntion  says,  that  he  is  a  book- 
■eHer  in  Lud^te- street.  That  Mr.  Wilkes 
applied  to  him  to  publish  the  North  Briton, 
jirevious  to  it's  appearinf^ :  that  Mr.  Wilkes 
did  explain  to  him  the  irc^neral  desitrn  ;  that  he 
■aid  he  most  have  a  publisher  who  wouki  not 
•land  in  fear  of  the  censures  of  jnstice.  That 
ba  oever  met  Mr.  Wilkes  any  where  on  this 
aecooot;  but  that  Mr.  Wilkes  alwaya  came  to 
hia.    That  he,  (this  witness)  upon  contidcra- 


tion  of  the  matter,  declined  publishing  the 
North  Briton.  That  Mr.  Wilkes  then  desired 
him  to  recommend  a  pnblisher:  that  he  re- 
commended Mr.  Keamley  to  him.  That  ha 
(this  witness)  had  a  corres|H>ndence  \yith  Mr. 
Wilkes,  concerning  the  Noith  Britons,  and  re- 
vising them  for  the  press ;  but  that,  after  tbrea 
or  four  numbers  of  the  paper  were  published, 
he  (this  witne^)  did,  upon  considering  tbe  af- 
fair, decline  tliat  also. 

Jonathan  Scott  says,  that  he  knows  Mr. 
Wilkes's  hand-writing,  and  proves  a  number 
of  letters  shewn  him  to  be  Mr.  Wilkes's  hand- 
writing, vix. 

N**  1,  datetl  Westminster,  26  July  1762  ; 
2,  ditto,  29  July  ;  3,  ditto,  8  August ;  4, 
Aylesbury,  15  August;  5,  ditto,  25  August; 
6,  Great  Geurge-street,  7  October ;  7,  Win- 
chester, 14  October;  8,  ditto,  31  October; 
9,  Great  George- street,  Friday  morning ;  10, 
ditto,  27  November ;  11,  ditto,  12  December; 
12,  ditto,  17  December.  All  these  were  read  ; 
they  are  to  Kearsly,  and  relate  to  North  Bri- 
tons, then  sent  to  be  published.  [N.  B.  Be- 
tween twenty  and  thirty  letters  were  produced, 
but  these  only  were  read.] 

Walter  £«//f  says,  in  the  first  place,  that  ha 
is  under  a  recognizance,  and  therefore  prays 
he  may  be  excused  from  answering  any 
question  which  may  tend  to  affect  or  injure 
himself. 

A  debate  ensued  for  near  an  hour,  whether 
he  may  or  may  not  be  allowed  the  privilege. 

The  Solicitor- General  very  strenuously  aa- 
serts,  that  in  the  present  case  he  may  not  be 
allowed  it. 

Serjeant  Glyon,  and  the  Recorder,  reply  to 
him. 

The  Lord  Chief  Justice  gives  it  as  his  opi- 
nion, that  the  man  is  not  bound  to  answer^ 
any  matter  whicU  may  tend  to  accuse  himself.* 

Balff  then  says,  that  he  is  a  printer  in  tha 
Old  Bailey,  aud  that  he  knows  Mr.  Wilkes. 

Q.  Did  ^ou  receive  this  letter?  [One  btmg 
shewn  to  him.] — A,  Ves. 

A  letter  of  the  2 '2d  of  April  was  then  read  of 
Mr.  Wilkes  to  Walter  Balff,  which,  from  the  ^ 
purport  of  it,  has  a  stromg  tendency  to  prove 
U'ilkes  the  author  of  NMS.  This  letter  of 
Wilkes  refers  to  an  enclosed  paper  (which  paper 
does  not  appear)  which  he  directs  Balff  to  bring 
in,  in  the  form  of  a  letter,  betwixt  the  conclu- 
sion of  the  next  North  Briton,  and  his  propo- 
sals. This  letter  likewise  directs  Balff  to  print 
the  North  Briton  apoken  of,  in  the  com|ias8  of 
two  sheets. 

Charles  Shaw  says,  that  he  is  an  apprentioB 
to  Walter  Balff  the  last  witness,  lliat  tha 
North  Briton,  N"  45,  was  printetl  at  his  mastei^s 
house.  That  he  knows  Mr.  Wilkes,  and  hat 
seen  him  often  at  his  master's  house,  but  ibat 
he  does  not  know  the  business  tipon  which  be 
came  there. 

George  Keamley  4 worn,  but  not  taffered  to 

-*  *  Nemo  teaalur  aei^ua  tccuiaieJ  XjsfSS^ 


1163] 


3  GEORGE  IIL 


Case  of  General  fVarranis'^ 


be  examined,  being  ander  a  proaecution  at  Ibia 
time. 

Michael  Curry  says,  that  he  is  a  joarnevimui 
printer,  that  he  was  employed  by  Mr.  Wilkes 
to  work  at  the  press  in  Great  George-street ; 
that  Mr.  Wilkes  ga?e  them  the  whole  set  of 
the  North  Britons  to  be  printed,  and  called 
them  at  that  time  his  North  Britons. 

The  Counsel  for  the  Prosecution  oljected  to 
this  last  being  a  proper  evidence  at  all  to  the 
questions ;  as  Mr.  Wilkes  or  any  other  person's 
republishing  a  work,  against  which  there  was 
no  judicial  determination,  could  never  affect 
them,  as  the  original  author  and  publisher  of 
it.  They  then  went  into  the  legality  of  the 
warrant,  and  many  precedeoU  of  the  same 
kinds  of  warrants  were  produced  in  court,  to 
prove  such  warrants  the  constant  uninterrupted 
course  of  the  secretaries  office  from  the  Revo- 
lution. The  warrants  from  lord  Halifax,  for 
mpnrehending  the  authors,  printers  and  pub- 
lishers of  the  North  Briton,  N**  45,  were  like- 
wise read. 

Lbxell  Stanhope^  esq.  says,  that  he  came  to 
Mr.  Wilkes's  house  irameifiately  after  he  was 
carried  away  to  lord  Halifax's ;  that  he  went 
with  Mr.  Woud,  and  stayed  there  half  an  hour; 
that  he  was  there  but  once,  and  stayed  till  the 
papers  were  sealed  up ;  that  lie  never  went  out 
of  the  study  ;  that  Mr.  Wood  was  in  the  study 
but  part  of  the  time,  and  did  nothing  at  all  but 
obser%'e  what  past ;  that  he  (Mr.  Wood),  gave 
no  orders  to  break  locks  by  any  kind  of  means, 
nor  gave  the  messengers  any  orders  or  direc- 
tions at  all,  but  only  bade  them  do  their  duty, 
and  use  civility !  That  Mr.  Wood  was  not  in 
the  room  when  the  smith  was  sent  for,  nor 
gare  any  orders  for  that  puqtose,  as  Mr.  Stan- 
hope ol!served  \  that  Mr.  Wood  was  not  pre- 
sent when  the  locks  were  opened.  But  that  it 
was  Blackmare,  the  messenger,  who  broke 
open  the  locks,  (in  this  circumstance  Mr.  Stan- 
hope exactly  confirms  Matthew  Brown's  evi**- 
dence.)  That  Mr.  Wood  went  to  Mr.  Wilkes, 
merely  at  the  instance  of  lord  Halifax,  in  order 
to  enforce  a  due  and  proper  obedience  to  and 
execution  of  the  warrant,  and  to  prevent  the 
roesKUgers  from  committing  any  blunders. 
That  a  debate  arisingf,  whether  a  table  with  a 
locked  drawer  should  be  removed  entire  or  be 
opened,  Mr.  Mann  was  sent  to  lord  Halifax  for 
direction!*,  and  brought  word  that  the  drawers 
most  be  opened. 

Upon  his  beiD":  cross-examined,  said  that 
the  messengers  were  to  take  manuscript  papers 
only,  and  not  meddle  with  improper  matters, 
sucli  as  printed  book<,  papers,  kc.  That  he 
did  think  it'incumbeot  upon  him  (this  witness) 
to  see  that  all  the  propu*  papers  should  be  re- 
moved. 

Hot'tri  Chisholm  says  that  he  was  the  consta- 
ble called  upon  to  attend  the  mes^ngers  to  3Ir. 
Wilkes ;  that  it  was  on  the  SOth  of  April  last, 
at  six  o'clock  in  the  morning,  that  he  was 
called  npon;  thai  Mr.  Wood  came  immediate- 
Ij  after  Mr.  Wilkea  waacarried  away ;  that  lie 
(this  wrtM»)  lkH4  Mn  Wotd  gm  M  kU  of 


ia,Mr. 


orders  at  all ;  in  Blioft«  that  hit  ( _ 
Wood  only  came  to  take  care  that  the  i 
gers  did  nothing  that  was  wronf  or  inpropcv. 

Mr.  Dunning  asked  this  witnesi,  whclWr 
be  then  imagined,  that  Mr.  Wood  apporai 
there  merely  on  behalf  of  Mr.  Wilkea,  as  his 
friend — he  anawcred' not  so  neither.*  Tbisvii- 
nesashoffled  and  prevaricated  very  iiiiich,'aii 
contradicted  his  own  evidence  more  than  once. 

Philip  Carteret  Wehb^  esq.  says,  that  Mr. 
Wood  was  sent  by  the  secnstarieay  merely  It 
see  that  the  messcngcra  executed  their  ww 
rants  in  due  form  and  order;  that  he  (ihii 
witneas)  was  only  once  at  Mr.  Wilkea't,  aai 
then  not  more  than  half  an  boar ;  that  ht 
went  because  the  secretary  of  auie  waa  ■- 
easy,  and  anxious  to  know  what  wna  doiif  rt 
Mr.  Wilkes's ;  that  he  (this  witnean)  wobmiw 
up  sUirs  at  Mr.  Wilkes's ;  that  be  bad  a  m^ 
versatioo  with  kNrd  Temple  in  the  pailmr. 
That  he  denies  he  had  ever  any  kcya  of  Mi: 
Wilkes  in  his  hands ;  .that  he  rerily  bdiftsi 
he  had  no  keya  at  all  in  his  bands ;  bat  tkitf 
he  hsd  any,  they  were  his  own  and  nol  Mr. 
Wilkes's.  Upon  being  crooa-ezamined  by  Mr. 
Dunning,  Philip  Carteret  Webb  tbeo  aBid,thrt 
npon  recollection  he  was  absolnldy  eerldi, 
that  he  had  no  keys  at  that  tiaie  in  bia  haaia 
That  Mr.  Weston  was  desired  by  kwd  Hafibi 
to  go,  but  that  he  excused  bimaclf  on  ae- 
count  of  his  weak  nerves,  and  ill  atate  of  bcsfefe^ 
and  that  npon  bis  (Mr.  Weston)  decliniagil, 
Mr.  Wood  was  desired  by  my  lord  to  go»  mkcb 
he  acoordinffly  did. 

Richard  Watton  says,  that  be  is  a  kiu'f 
messenger,  that  he  was  at  Mr.  Wilkes'aaa  tti 
30th  of  April  last,  that  Mr.  Wood  waa  tbor. 
and  did  nothing  at  all  as  th»  witness  obsttvtt 
but  only  gave  them  directions  how  to  act 

The  Solicitor  General  observed,  when  BiH 
and  Kearsley*s  evidence  were  set  aside,  thatke 
placed  little  de[>endance  on  their  e%iden€e,ii 
to  the  proof  of  Mr.  Wilkes  being  theautborif 
N''.  45,  and  indeed  he  said  it  was  not  very  oi^ 
terial,  for  that  the  letter  from  Mr.  Wilkes  n 
Baiff  the  printer  which  had  been  read,  see  ptfi 
26,  and  w  hich  he  then  held  iu  his  band,  «ai 
conclusive  evidence  against  him.  Norton  a- 
paiiated  long  upon  the  circumstance  of  ite 
letter :  he  ol«erved  that  it  was  a  lucky  circaa- 
stance  for  them  that  N\  45  was  the  only  oasi* 
bcr  uf  the  North  Briiou  which  was  printed  is 
two  sheets  of  paper,  that  it  was  the  only  oun* 
ber  that  had  a  letter  at  the  end  of  it,  with  l^ 
proposals  following.  He  enlarged  very  folljF 
on  all  these  corresponding  circumstances. 

L.  C.  J.  Prat  I  asked  tor  the  letter  whicb  wM 
enclosed,  that  he  might  compare  it  wiib  Ikl 
letter  at  the  end  of  the  North  Briton,  N".  4i» 

But  the  Solicitor  General  answered,  be  hd 
it  not. 

Serjeant  Cljfnn  in  his  reply  observed,  tW 
the  manner  of  defence  that  bad  been  srtf 
would  nrcesmrilv  make  bia  reply  k»agcrlktf 
it  otherwise  would  have  been.  Whstkiji 
to  remark  be  abooid  divide  nndcr  two  kM 
M,  as  10  tho  ddnn  wbick  bad  be»  irt  ^  i 


^ 


f   ^1 


I16S]        ^^P       mtkei  V.  ffoc,^. 

Ml  gtiiUy ;  tnd  9d1y,  make  observations  on 
llie«|»ee(flk  iastiAcdiioti  (hat  Imrl  l»een  pleaded. 
The  efiJence  nrofecl,  uncootro verted,  that 
Mr.  WckhI  was  the  prime  actor  in  the  whi>l« 
tiblf.  He  then  oWrved  that  the  three  wit< 
Bitaaet  on  th«  shte  of  the  dereuitant  gave  dif- 
ferent eviilences  of  the  husinesi  Mr.  Wood 
came  about :  Mr,  Fhihp  Carteret  Webb's  ac- 
count WM  quite  ineonsistent :  whs  it  possible 
to  luppote  that  a  tnan  of  >lr.  Wood's  clidracter 
and  known  abilities  ihould  be  sent  Qoty  n  itii  a 
itMaaa^  that  any  menial  servant  could  have 
iMifere<l  as  well ;  and  that  he  should  have 
aolbing  else  to  do  with  llie  afl^tir.  He  then 
obierved  that  atl  the  witnesses  called  to  oppose 
the  evidence  on  their  &idc  u  ere  all  pariic^^  nod 
mi^inst  whom  prosecutions  of  a  hke  nature 
Wf-re  at  present  dtpendin^j.  He  then  weut 
upon  the  [loint  of  justiti cation,  and  observed, 
that  as  to  Mr.  Wilkes  l>eing  the  author  of 
h*  45,  they  had  totally  failed  in  any  kind  of 
pftKit'  whatsoever ;  or  if  they  had  produced 
the  appearance  of  a  proof,  it  was  quite  aside  to 
lb«  pretfent  queUion,  and  to  which  he  should 
ItOI  aC  any  event  have  made  any  reply,  as  there 
ai  present  depending  a  prosecution,  as  to 
|iartictjlar  point,  in  his  defence  of  which 
le  no  donbt  he  ahoald  be  able  t'ulty  to 
V  that  Mr.  Wilkes  was  not  the  author. — 
it  Mr.  Wilkes  could  not  tie  supposed  or 
ttitpected  of  any  desigti  against  the  pre- 
t  cstabJiikhmenl ;  that  he  was  educated  in 
had  afwayg adopted Whi^^  principles;  that 
«fM  known  to  he  attached  to  and  to  have 
the  highmt  opinion  of  the  pre^nt  prince  on 
llie  Ibiticte,  which  he  had  often  nod  upon  many 
occrmaioni  declareil  ;  and  his  conduct  had  al- 
^nmym  been  answerable  to  these  declarations* 
Wneii  critnes  have  been  exaggerated,  and  so 
^oeb  declAmation  made  use  of  as  there  has 
b««Q  on  the  present  occaRion,  one  would  natu- 
rally  have  expected  that  some  proof  would 
'  Kil  ;  but  that  in  reality  could  never 

if  case,  as  the  sole  design  was  to 
cktjj   i^ii-  Wilke»-8  character,  without  any 
daiion  in  fact.     He  then  observed  that  va- 
-  •-!-,  *^  nere  communly  employed  in  most 
|p^!  orkM ;    that   Mr.   \Vilkes  was  not 

mmti^^  4.  ..:  ^v;  the  author  of  some  of  the  North 
Untons  ;  but  that  it  was  not  hkely  he  was  the 
utiinr  of  N^  45,  and  that  indeed  the  republica- 
lioci  of*  the  work  in  volumes,  in  which  was  N** 
^3,  ao  far  from  hein^  a  presumption  against 
fatrti.  Certainly  affonls  the  Mron|/eat  reason  to 
tl>i«*k  h#  was  not  the  author  ;  for  if  he  had 
it  is  not  likely  he  would   have  been 
d  in  a  publicalion,  whilst  a  crimiual 
was  depenilio]^.     He  then  oliserved  as 
ta  tiir  warrant,  that  it  was  destitute  of  thotje 
to  make  it  legal  i  that  a  pre- 
was  always  uecejtsary.    That 
''7  Ut  entitle  them  to  a 
they    had  wet  up 
-. ,    iknd  unfair:  possi- 
rar*(  otBce,   tniglit  de- 
i  i:c  hud  said  ;  but  that  he 

wtU  satisiifd,  ir9m  that  girutlstaaii'i  kn^ti  h 


A.  D,  1765- 


£1166 


good  character  and  great  abilities,  that  ha 
would  have  refused  to  plead  in  a  cau«*e  of  m 
similar  nature,  which  he  was  not  forced  tn  do 
tT  o(Ticm,  He  was  satiefied  ihe  jury  woiiM 
not  View  Mr.  Wilkes  as  not  entitled  to  u  veitlici, 
because  loailed  with  catumny  :  that  the  casa 
was  a  wound  given  to  the  constitution,  and 
demantted  domiiges  accordingly  \  that  Mr. 
Wilkes's  papers  had  undergone  the  in^pectionJ 
of  Tery  improper  persons  to  examine  liis  pri*^ 
fate  concerns,  and  called  for  an  increase  of 
damages  on  that  score.  The  evidence  brought 
of  precedents  of  these  kind  of  warrants  only 
shew  how  tasy  things  may  creep  into  onr 
constitution,  subversive  of  its  very  founds* 
tiuif.  He  then  closed  with  tellini^  the  jurf 
lie  made  no  doubt  but  they  wouhl  ^\\\\  a  rer«j 
diet  for  the  plaintiflT,  witii  large  and  exemplarj 
damages. 

The  I^rd  CAie/ Justice  then  summed  up  tbt 
evidence  of  the  whole,  and  observed  it  was  an 
action  of  tresnaas,  to  wliieli  the  defendant  had 
pleaded  first  Not  C«uilty,  and  then  a  special 
jusliticaiion.  He  then  went  through  the  par- 
ticulars relating  to  the  justificatiunt  the  king'f 
speech,  the  libel  N"  45. 

Information  given,  that  such  a  libel  was  pub 
lisbed, 

Lord   natifax  gmnting  a    warrant;    me 
aengers    entering    Mr.    Wilkes  house;    Mr«^ 
AVood  directed  to  go  thither  only  with  a  mes- 
sage, and  remaining  altogether  inactive  in  i\u 
aEair. 

If  the  jury  Mmuld  he  of  opinion,  that  evcrjJ 
step  was  pro|>erty  taken  as  represented  in  lli#T 
justification,  and  should  esteem  it  fully  provedJ 
ihey  miiKt  find   a  verdict   for  the  defendanlJ 
But  if  on  the  other  hand  they  should  view  MrJ 
Woo<l  an  a  parly  in  the  affair,  they  must  ft nd  m\ 
verdict  for  the  plaintilfi  with  damages.    Thii 
was  a  general  direction  his  lordship  gave  the 
jury,  and  he  then  went  into  the  particulars  of 
the  evidence.    The  chief  part  of  the  justifica- 
tion, he  observed,  consisted   in   proving  Mr. 
H'ilkes  the  author,  and  the  evidence   give»» 
together  with  the  letters  to  Keaniley,  plainly 
shew, that  Mr,  Wilkes  was  generally  so.     Then 
as  to  N''  45,  the  evidence  was  of  two  sorts,  first 
a  letter  to  f\x  it  upon  him,  and  the  other  gene- 
ral:  as  to  the  proof  of  the  republication  of  the 
North  Britons  given  by  Cui  rie,  suppoaing  it  of 
itself  aufficient,  of  which  there  was  a  doubt,  it 
did  not  extend  to  the  present  cane,  to  justify  a 
warrant  issued  several  weeks  previous  U>  tliai 
lieriwl.     As  to  the  letter,  the  gentlemen  must 
lake  that  out   with  them,   logeiher  with   I  We 
^orlh  Briton.  N*  45.   and  allow  all  the  viciKhi 
to  the  circuni?.tance  they  think  it  will  admit  of. 

11  upon  the  whole  tliey  hhould  esteem  Mr. 
Wilkes  to  be  the  anthov  nud  pnblti.her,  the  jut- 
lifi cation  would  be  fully  proved.     But  thai,  to 
do  this,   ii   was  essentially  neces«vy   lo  ^ave 
the  enclosed  |japer  in  the  Icllir  u»  B*\ff,  ws^ 
without  that,   all   the  re*t  «ra»  hut  VnfeT^ncc, 
nnd  not  the  pn»of  positive  which  lUc  law  ve- 
quifed.     At  ta  Mr.  Wood,  ha  w%%  4«i.^x'^&«m^, 


S  GEORGE  in. 


r 


1167] 

one  sid«  as  wtrf  trtiye  in  the  odmtr^  and  on  tlie 
other  sitle  as  *i|uite  iikolTcnfiive.  Aiders  and 
abeiiors  arc  ulwwys  wtef  nie«l  pirttes  ;  but  if  & 
persitn  |ire<eiil  r^riiaiii»  oiit^  a  fi]>ectalor»  ho 
Ciiunol  be  affVclwJ.  The  evidence  on  ihe  one 
Mde  liuil  tieftt  ixmitivPf  and  oii  il>e  other  side 
Qtil  V  nt'ii^lire,  Mr.  WikhI  mii;ht  ha*i?  tiaiil  and 
done  aa  reprps^nUfd  f»it  the  one  aide,  when  tlie 
evidences  '»n  ihe  olhe»-  side  were  not  present  i 
if  upon  the  iwlitde  ttiey  sliould  be  of  opinion, 
that  Mr.  \Voml  wasaclite  in  ihe  affair,  ihey 
waust  tind  a  verdict  lor  I  lie  ptaifitinf  with  dm- 
tnages.  Hislordnlup  Ihea  went  uptm  the  war- 
rant, which  he  decbred  wbs  u  ^tnm  of  the 
greate&t  const-qnt^oce  he  hud  tVi  r  met  wilh 
in  his  whole  practice.  The  dtfendttnts clftimeil 
a  right,  under  precedent*,  to  force  persons* 
houses,  break  open  e^eratores,  seine  their 
papers,  \c.  upini  a  generai  warranU  where  do 
jnvtniory  is  made  of  the  thing?  thus  taken 
awiy,  and  where  nootTenders'  naaieaare  speci- 
fied in  ihe  warrant,  uiiil  iliereforc  a  discretionary 
power  given  ti»  uitssetii^ers  to  search  wherever 
their  suspicions  may  chance  tti  €dl.  Jf  f^uch  a 
power  h  truly  luvusted  in  a  fiecrelary  of  stale, 
and  he  ean  dele;^ate  ihli  power,  it  certainly 
may  affecl  ihe  person  and  property  of  efery 
raan  in  ihis  kingdom,  and  is  taiaily  sahverslve 
of  the  liherly  oi  the  subject. 

And  as  for  the  precedents,  wiU  lb  at  be 
efiteetncd  law  in  a  secretary  of  state  which  is 
not  law  in  any  olher  mntristmte  of  this  kiag- 
daiD?  if  they  should  be  found  toUele^al,  Ihey 
are  certainly  td'  the  most  dantferoos  conse« 
miences;  if  not  legal,  mn«t  aggravate  dai nacres, 
Notwith»taudtng  what  Mr,  Sulicttor  General 
haa  said,  I  ha?e  fornterly  delivereil  it  as  my 
Qpioion  on  another  occasion,  and  1  still  continue 
of  the  !»ame  mind,  ihnt  a  jury  have  it  in  their 
power  to  gi^'e  damages  fur  more  than  the  in- 
jury received.  Damages  aro  designed  not 
only  as  a  aatisfaction  to  the  injureil  (Hfrsmi,  hot 
hkewiseas  a  puMtkhnient  to  Ihe  guilty,  to  deter 
from  any  such  proceeding  for  tlie  future,  and 
as  a  proof  of  the  detestation  of  the  jury  to  the 
action  itself.'^ 

Aa  to  the  proof  of  what  papers  were  taken 
aAvay,  the  pUinti^  could  have  no  uccourit  of 
thcfQ  ;  and  iho^e  wkio  were  aide  lo  have  given 
an  aoeuunt  (wliicli  mi^lu  have  f»een  an  ejcteutsa- 
tion  of  their  gidll)  have  proihiced  none,  ll 
lays  upon  the  jnry  to  allow  what  wei^^ht  they 
think  proper  to  tbiil  part  of  ihe  evidence.  It 
is  my  opiniou  the  othee  precedents,  which  bad 
been  produced  stnce  ihe  Eievolution)  are  no  jus- 
liticatiou  of  a  pracUce  in  iisell  illegal,  and  con- 
trary to  tlie  tund  a  mental  principles  of  the  con- 
ittlution  ;  though  its  haling  hern  the  consiAot 
practice  t^f  the  otfiue,  tnight  fairly  he  pleaded 
in  mitigation  ui'  damafres.f 

*  Vila  reipuhlicie  pax,  el  animus  libertia,  et 
libertoti^,  tiriuis^inium  prupugnu^^olum  sua 
cuiqne  domus  legihns  muiiita.     Luih. 

f  lit  piLHm  ad  paucua,  met  us  ad  oiiines  per*- 
lingat* 

I 


CaB€  tfGemrBl  Warrants 


fU 


il«  then  told  the  jury  %^f  Inl  a  nfj  mm\ 

rial  alFair  to  detrriBioe  tipoo,  i 

it  to  ttiem  IM  he  partietitaily  i 

in  their  verdict.     Oh»ert«^^    IImI  iff 

fountl  Mr.   VVitkes   the  Aoiliof 

N'  45,  it  would  he  fiU^t    "'"t  st« 

in  the  court  of  Con  •  as, 

liH  tuddiireil  as  pro<k  he 

; ,  in    liar  i  utiii 

<  i  of  that   II  ^>    b« 

on  the  other  side  they  »huoi«i  be  equally  I 
to  do  justice,  urctHcliog  to  the 
therefore  left  it  to  their  cutiYideraliuQ. 


'Cn 


^'  bill 


The  Jury,  after  ifithdr  i^* 
hour,  returned,   and    fon 
upon  both  iisues  for  the  | 
sand  pounds  iJamai^es. 

After  the  Verdict  wiia  rFx*f»rura,  ti«i? 
General  offered  tn  prefer  m  Bitl  of 
which  the  Lortl  Cbtef  Jusitoa  ttfiBwtiaia^ 
saying  it  was  out  of  ttiite. 

The  Court  sat  at  nine   o*<  I 
ing,  and  the  Verdict  wai*  brcjn,  /W 

minutes  post  eleven  o'clock  at  uighL 


It  appearst  Uitt  il  was  iiiial  intlsi 
missions  of  governors  of  the    Amcticii  pi 
viiices  lo  iiifMu-t  a  i?laiiii9  rcfcnmg  (Bfl«li| 
ther  [Towen*,   instTurtions   sitni   autboiaii^^ 
shoutJ  ai  any  time  thoroalii^r  Ira  gniiif4«f 
pointed  to   such   governor*   uiiler  thel"^ 
sigoist  and  sr^rn  inatiua!,  msd  < 
grant   lo*  snth  gov«rnorB  pon 
not  Ijeeu  specified  in  tht^r  con 


HP 


Tlte  learned  and  const: 
'  Canadian  Freeholder/  , 
aiWr  animadverting  on  thi^  pi^fci^uce, 

**The  dangers^  atifntluiLr  fi,«>   i] 
great  seal t  make  it  < 
illegal  acts  under  ih 
loni  chaueellur,  front    his  ^ 
and  history,  tiis  habits  of  ex?.* 
state  wilh'care  and  v  ■  ■ 
their  relations  and  co 
he  brought  to  use  the  ^ntai  ^^ol  tmhm 
|iofps*     But  ttie  cts«!  is  f)ihf*riv«tt#  mnth 
to  the  kio:;*s  sitfnet.,     T 
cuted  under  the  kingV  Bvj 
by  tlie  kind's  secrrtiirles  « 
undergoing  ihu  lord  cbat 
or  that  of'llie  privy  cou**mi.   i>i    *..... 
attorney- c^eneral,  or  any   other  |inmsi 
from  Ills  education  and  i^itatioii  m  U(t^ 
supposed  to  be  acquainted  s%t\h  the  la<r, 
lo   the  secretaries  of  stale,  Ihey  art 
men  of  high  rank,  horn  lu  title*  andfi 
I  ales,   aud  brerl  in  liabits  of  emm  wad 
and  hut  little  ac<]uainte«K  or  indssedM 
acq uninted,  with  so  dry  meulficrt  aall 
Persons  of   this  deacniilkNi,  wfm  ^[ 

fdaocd  in  slisttous  of  omhortly,  uw  mi^^ 
ikely  to  mlviiie  their  suver««gii  mdi 
w  tii^^^V^v « uc  do  u  b  I  f ul  mitu t«y 


\' 


I 


1169]  ^■HP' ''-  ^^* 

liow  far  the  hw  ftllowg  of  Hmjid,  lh«n  a  leorneil 
and  gyrate  lord  cbaocellor,  if  it  were  btilihroti^li 
ineris  igfooranoe,  and  ihuugb  their  inientionsi 
yrttewny  imfe:  hut  it  often  happens  that  to 
thia  i^tioraiice  of  the  Iftw  they  add  a  cootempc 
IbrUpi&nd  a  disposition  todisreyard  iti  restraints^ 
and  oveHedp  the  hoi  its  it  prescribes  to  their  au- 
Ibority,  ivbich  they  are  apt  to  consider  as 
fiarroir  pedantic  rtde«  which  it  is  below  tbeir 
dignity  to  submit  to,  and,  Uke  AcliiUes  in  the 
^b^TWcXet  g\ten  of  him  by  Horace,  *  Jura  ne- 

*  gaut  sibi  oata,  oiliil  hod  arrogant  ariuis*' 
Tbey   are  tbcrefore  fond  of  the  doctrioes  of 

*  naaoD  of  state,  and  sttite  necessity,  and  the 
ioiiiosMbihty  of  providing  for  great  emergfcociea 
•od  extraordioary  cases,  without  a  discretiun- 
ftry  power  in  the  crown  to  proceed  sometimes 
by  uncommoQ  methods  not  agreeable  to  the 
known  fonns  of  law/  and  the  like  dangerous 
and  detettable  positioos,  which  hare  ever  been 
the  pretence  and  foundation  for  arbitrary  power. 
I  do  Dol  mi'an  that  all  secretaries  of  state  are 
of  this  way  of  thiokioi;  ;  fur  undoubtedly  some 
af  thiMe  itiinbters  have  been  men  of  a  different 
character  :  but  there  bare  bei^i),  as  I  helic?e, 
enough  of  that  disposition  to  tvarrant  me  in 
saying  thai  il  la  tbe  general  npirit  and  com- 
plexiun  of  tbe  office.  Nor  would  it  he  difficult 
to  i)nd  proofs  of  this  extra  legal,  or  rather 
sufira^lecf. Indisposition  in  the  powers  they  have 
a>  thettj^d?es  nithout  any  clear  war- 
r^i  v  for  fco  doing,  and  in  the  manner 
tbey  hare  exercised  those  powers  thus  unwar- 
faniably  ai^sumefl :  of  which  I  will  mention  to 
yoa  one  remarkable  instance,  which,  io  the 
case  of  lh«;  celebrated  Mr,  Wilkes,  some  years 
afco  rnti^nxed  the  attention  of  alt  E^Kland, 
Tbat  g^etiikiuan  had  uritlen,  (or  1  should  ra- 
ther nay  I  %^HH  %u|ipojed  to  have  written  ;  for  it 
mu'aever  prov«d  upon  htm  ;)  a  potitiral  pnper 
calkd  the  North  Briton,  N"  46,  in  the  moiitli 
»f  April,  1703,  soon  after  the  conclusion  of  the 
Iat4e  dt-ftnitite  treaty  of  peace,  by  whttti  this 
|iroviiice  of  iJntiadu  xvhs  ceded  to  ihe  crown  of 
^rr  It  tlritaio,  iu  whtch  papi  r  there  wan  a  pas« 

%.^  .:  ite  offt'oce  10  the  Court,  and  was 

is  m  a  htifh  degiee  ^etlitions.  Upon 
llii^  H  rwdtilion  wmji  taken  Ity  the  king's  mi* 
Aiiiicrs  of  «t.ite  to  m rest  >lr.  Wilkes^  and  pro- 
aeciite  him  in  the  court  of  KiuifV- bench  fur 
laritiD;;  mt4  puhlishintf  thes^id  setliLious  paper, 
^r  Jibei ;  and  lie  was  nccitnlingly  arretted,  and 
aU  Itia  papem  of  every  kind  svere  tieizcd,  by 
virtue  of  a  warrant  issued  to  one  of  the  king  s 
BieBaengfri  by  the  liite  earl  of  Halifax,  who 
ir^a  at  thai  ttuve  otie  of  \m  in4je»ly*s  secre* 
tmriw**  iff  fttate.  \n<i  this  wurrattt  was  a  tf^ne' 
ral  iirarnint,  which  did  nitmeution  Mr.  \Vilkes*s 
ctaruf,  but  cm  (towered  the  me^^icui^er  to  arrest 
t|i««  I.*  TMin,  (whfiever  ihey  miicbt  be)  who  had 
4iL  I  iit'd   ill  wniiog  aod  iMddishio;^  the 

Sai  Ml*  paper,  called  the  North  Driton, 

K"  4  I.     IHiis  omisvion  of  Mr.  U'ilkea*s  name 

ii»ftt'  \\\t  narritfU  tMh  r!y  illrgal,  hicause  it  r«- 
t  fwho  was  a  mere 

I  who  acted  as  such) 

^f  UiiM  VI a»  tit^  buiiDe«iaf  a  judicial 


A.  D.  1769. 


[ino 


ofEcer,  or  magistrate,  that  ig,  to  exercise  a  a 
act  of  judgment  of  an  high  nature  by  deter^ 
mining  who  were,  and  who  were  not  concerned 
in  the  commission  of  the  olfence  in  ()ue5tiou« 
This  was  an  act  of  judgment  of  ao  itnportant  % 
kind  thai  even  a  magistrate  ought  not,  accord- 
ing to  tbe  maxims  of  the  £n^li»b  law,  to 
have  ventured  to  do  it  without  having  received 
an  information  upon  oath  from  some  crctlibla 
witness,  that  such  or  stich  a  person  bad  com- 
mitted the  offence  iu  <|uestion,  to  be  a  ground 
for  his  ordering  him  to  be  arrestetl  ;  because^ 
if  magistrates  had  a  |)OW'er  <ff  arre^iting  tneti 
without  such  previous  information,  and  merely 
upon  their  own  suspicions,  or  pretended  i^o*- 
picions,  tJiey  might  cause  any  jmrsou  how  in* 
Docent  soever,  lo  be  thrown  into  tiriw>n  when* 
ever  they  thought  fit.  And  much  less  can 
magistrate  delegate  such  a  power  of  detertai 
log  who  is  tbe  person  that  has  committed 
particular  oflence,  to  a  mere  miuisterial  uffici 
of  justice,  such  as  the  king's  mesaengcr,  whicli 
is  done  whenever  a  general  warrant  is  issuing 
This  general  warrant  therefore  issued  by  lord 
Halifax  was  clearly  illegal,  and  constipi roily 
the  arrest  and  imprisonment  of  Mr,  W  tikes  it> 
pursuance  of  it  were  illegal  likewise,  and  be- 
came a  Just  (ground  for  an  action  at  Liw  at  th« 
suit  of  Mr,  Wilkes  ag4iinst  lord  llahfnx,  tho 
secretary  of  slate,  for  a  false,  or  wrongful  im- 
prisoumeot of  him:  and  Mr.  VVilkett  did  iifter- 
waids  accordingly  bring  such  an  action  against 
him  iu  tbe  court  of  Common  Pleas  in  England, 
aitd  did  recover,  by  the  verdict  of  a  jury,  a  largo 
sum  of  money  as  a  compensation  for  the  damage 
he  bad  wrongfully  sustained  by  such  im|irtson- 
ment*  It  must  nevi^rlheless  be  acknowledged^ 
injustice  to  the  late  lord  IJalifiix,  that,  Ihougti 
be  issued  the  said  general  warraot,  he  was 
not  incited  to  do  so  by  the  baugbty  s|>irit  whicli 
I  have  been  jusi  now  describing  &:»  too  apt  to 
influence  the  grecit  men  who  till  those  ofhcei, 
but  was  himself  rather  incliueit,  (from  hi^  own 
natural  good  sense,  anil,  as  we  may  siippo(^t>, 
the  moderation  of  his  temper,)  to  insert  ^Ir. 
Wilkes's  name  in  the  warrant,  hut  was  over- 
persuadeil  lo  the  contrary  by  TMr.  Philip  Car- 
teret Webb,  %%ho  was  at  that  iinie  solicitor  to 
the  treasury,  and  who  urged  him  to  make  tlie 
warrant  general,  bccaus^e,  he  said,  it  had  bceu 
the  cuuBlanl  usage  of  former  secretaries  of  siata 
to  fr^me  their  warrants  in  tbat  manner,  a^  io* 
deed  be  afterwards  proved  to  the  world  that  it 
bad  beeu,  by  puhlisuiag  a  collection  of  war* 
rants  is*ued  by  diflcrent  secretaries  of  sUla 
on  various  occnsioo^  in  almoiit  every  reigis 
for  the  preceding  hunilred  yean<,  or  Irom  tba 
year  1662,  if  my  memory  dtws  not  deceive  mr 
of  which  the  greater  pmt  wcra  drawa  ttp  m 
ibnl  %ague  and  general  miinricr  Tbi»  mav^ 
perhaps,  be  Gutticient  lo  '  1 

lluhliix  J   but  tl  iicrvf*  m  »• 

violent  spit  it  which  bus  usually  |*nftaii«d  m  ibn 
persons  who  hove  held  the  oulOi  ^  •9€T*tmrj 
of  state,  Hinc«  it  thews  thai  lor  a  iMli4fad  y<«ra 
together  tbey  ba¥tf  tskirti  iifMi  tbcns  lo  aet.  m. 
ibe  bu4tii«as  of  arrtftjaf  iliia  atfea^efi-  '~ 
4  P 


1171] 


5  GEORGE  111. 


manner  that  bids  open  deOance  to  the  first 
vriociples  of  law  and  justice.  And  this  they 
nave  done  too,  without  e?er  having  been  clearly 
inrested  by  any  statute  of  the  kingdona,  with 
any  power  of  arresting  men  at  all,  even  by 
warrants  that  name,  or  describe  exactly,  the 
persons  who  are  to  be  arrested  by  them,  and 
that  are  ^rrounded  upon  previous  informations 
of  credible  witnesses  upon  oath  ;  and  certainty 
without  having  any  such  authority  by  virtue  of 
the  old  common  law,  or  general  usage  of  Eng- 
land from  time  irpuiemorial,  because  the  ofiice 
of  secretary  of  state  itself  has  not  existed  long 
enough  for  that  puqiose,  being  no  older  than 
the  reign  of  Henry  theSlh,  which  began  in  the 
year  1509,  whereas,  in  order  to  be  possessed 
of  such  an  authority  by  ancient  custom  from 
time  immemorial,  it  ought  to  have  been  pos- 
tesaed  of  it  before  the  time  of  king  Richard 
the  1st,  or  about  the  year  1189.  But  the  troth 
is,  that  the  king's  secretaries  of  state  are  his 
clerks,  or  letter-writers,  whose  business  it  is  to 
make  known  his  majesty's  pleasure,  to  his 
ambassadors  in  foreign  courts,  or  to  ambassa- 
dors of  foreign  courts  at  liis  majesty's  court,  or 
to  his  majesty's  subjects  in  his  own  dominions 
on  various  occasions,  but  are  not,  or,  at  least, 
were  not  originally,  his  majesty's  magistrates, 
or  the  delegates  of  bis  judicial  power  for  the 
purpose  of  adminsteriog  justice  in  his  name 
and  behalf  in  any  rejtpect,  and  therefore  ought 
not  to  arrest  statq  offenders,  any  more  than  any 
other  offenders,  or  any  more  than  they  ought 
to  try  them  for  their  offences  and  condemn 
them  to  punishment  as  is  done  by  real  magis* 
trates.  For  the  arresting,  trying,  and  con- 
demning men  for  offences  against  the  laws  are, 
■11  of  them,  branches  of  the  judicial  power  of 
the  crown,  and  ought  therefore  to  be  exercisetl 
only  by  the  known  magistrates  of  the  kingdom, 
to  wit,  the  judges  and  justices  of  Oyer  and 
Terminer,  and  justices  of  the  peace,  who  are 
regularly  invested  with  competent  authority 
lor  that  purpose  by  commissions  under  the 
great  seal.  And,  as  to  the  king's  messengers, 
tliey  are  not  the  proper  ministerial  officers  of 
justice,  like  sheriffs  and  constables,  but  are  only 
(as  their  name  imports)  servants  kept  in  the 
king's  pay  for  the  purpose  of  carrying  mes- 
sages for  him  with  fidelity  and  expedition, 
either  within  the  kingdom  or  without,  as,  for 
instance,  to  carry  dispatches  to  his  majesty's 
ambassadors  in  foreign  countries:  so  that  it 
■eems  doubtful  whether  even  a  legal  warrant 
to  arrest  a  man,  issued  by  a  known  magistrate, 
as  a  justice  of  the  peace  or  a  judge  of  the 
Court  of  KLing's-bencli,  can  be  legally  executed 
by  one  of  these  messengers,  unless  it  be  in 
those  cases,  (if  there  aire  such,)  in  which  it 
«iay  l>e  executed  by  any  person  whatsoever  as 
well  as  by  a  sheriff  or  constable,  or  other 
known  ministerial  officer  of  justice.  You  see 
therefore  that  there  is  a  threefold  irregularity 
grown  up  in  the  secretary  of  state's  office  with 
respect  lo  ibis  practice  of  arresting  men  for 
•tate-dffences.  In  the  first  place  they  have 
«peete4  tbeiuselvea  into  judicial  offioen«  or 


CasB  ofGenmi  Warrants^^  [1 171 

iDagistrates,  for  this  purpose;  in  the 
place  they  have  made  use  of  kiug'soM 
instead  of  sheriflfs,  or  conatMles,  or 
known  ministerial  officers  of  jostioe,  to  a 
their  wan-ants ;  ond  ia  the  third  pbcSe  they 
have  framed  their  warrants  in  a  geMral  nu* 
ner,  without  Darning  the  particular  pcitOM 
they  meant  to  have  arrested,  and  donfiniag  thi 
warrants  to  them  only,  but  leaving  a  liberty  ti 
the  messengers,  who  are  to  execute  the  wv- 
rants,  to  arrest  any  persons  wh(Hn  tbcj,  Ikt 
messengers,  shall  think,  or  say  tbat  tbey  tkU^ 
to  have  been  guilty  of  the  otfenoea  in  qucste. 
These  are  strange  licenses  that  have  crept  im 
the  practice  of  the  secretary  of  state's  oflH^ 
and  they  sofficicntly  shew  the  violent  sfidt 
that  has  prevailed  in  it.'* 


For  the  evidence  wtiich  Mr.  Philip  CartM 
Webb  gave  in  this  Case,  an  indictmoit  for  p»> 
jury  was  instituted  against  him ;  of  the  p» 
ceedings  upon  which  roy  excellent  friend,  Mr. 
Baron  Maseres,  has  furnished  me  with  thaM- 
lowing  Mote  taken  by  himself : 

Easter  Term,  May  10,  1764.   . 

A  Motion  was  made  in  the  Kiog'a-bcMk 
to  quash  an  indictment  fi>r  perjury,  agaisil 
Mr.  Webb,  the  solicitor  of  the  Treasury,  npat 
account  of  its  insufficiency.  The  case  was  « 
follows.  In  the  action  of  trespass  broMfht  bf 
Mr.  Wilkes  against  Mr.  Wood,  the  umfer  se- 
cretary of  state,  for  forcibly  entering  bis  bson 
and  seizing  his  papers,  Mr.  Beardnore  hU 
been  a  principal  witness  on  behalf  of  Sir. 
Wilkes  to  iMTOve  the  trespass ;  and  in  giriag  Ui 
evidence,  he  had  said  that  Mr.  Webb  was  pre- 
sent there  aiding  and  assisting  in  seising  Mr. 
Wilkes's  papers,  and  that  he  (BearduHMe)  hat 
seen  him  (Webb)  with  a  key  in  his  hisdl 
Afterwards  Mr.  Webb  was  examined  as  a  wit* 
ness  on  behalf  of  the  defendant  Mr.  Wotd  \ 
and  amongst  other  things  he  then  declared, 
with  a  particular  reference  to  Mr.  Beardmore't 
evidence  above- meutioned,  that  he  never  had 
had  a  key  at  all  of  auy  kind,  or  belonging  to 
any  person,  in  his  hand  on  that  occasion,  not* 
withstanding  what  that  man,  meaning  Beard* 
more,  had  sworn.  This  assertion  of  Mr. 
Webb's  that  he-had  no  key  in  his  hand  on  tbsl 
occasion  was  intended  to  be  the  subject  of  as 
indictment  of  perjury.  And  accordingly  al 
the  Epiphany  general  sessions  of  the  peace  at 
Hicks'8-hall,  about  Jan.  7,  1764;  a^liill  of 
indictment  was  preferred  against  him,  for  wtlM 
and  corrupt  perjury,  in  sweariu^r  that  be  had  as 
key  in  his  hand,  and  this  iudictmcnt  vai 
supported  by  four  witnesses  w  hose  narae»  wcit 
indorsed  upon  the  back  of  it,  and  was  fnond  by 
thn  ^rand  jury.  But  soon  after  the  findiif 
of  this  indictment,  the  counsel  for  the  prosi* 
cutor  of  it  took  notice  that  it  was  not  accurals* 
ly  drawn,  the  person  who  drew  it  (who  wai 
ilf,  Wallis)  having  barely  stated  the  mrdi 


•1173]  mikes  V.  Wood, 

•worn  by  llr.  W«bb,  without  tufHciently  sett- 
ing furlii  that  tbey  hail  »  matenal  relniton  to 
ll»fliisiif  in  tbt  ctuie  in  which  I  bey  were  ipoktfti^ 
^bicb  might  and  ott^ht  to  ha?e  been  done  by 
ctitttng  that  ^Jr.  Ikarilmore  was  a  matenal 
witneifi  in  the  cause,  that  he  bailawom  that  he 
bid  veea  Webb  with  a  key  otMr.  Wilkea's 
_^f»iy^rs  in  his  hand,  and  that  Webb  was  exa- 
MM^  al^er  Beardmore»  and  swore,  with  a  par- 
^^^^Hliir  reference  to  Beirdmore's  evidence,  and 
^mh  a  view  to  discredit  the  whole  of  his  testi- 
toofiy  and  render  it  of  no  weight  with  the  jurv, 
that  be  hud  no  key  at  nil  in  his  hand,  nolwith- 
Btaodin^  whatthat'man,  Beardmort',  harl  sworn. 
Th<*  couni<4  for  the  prosecalion  liai'ing  oh. 
served  this  defect  fn  the  indictroentf  neglected 
to  take  out  process  upon  it,  iutending*  to  pre- 
fer a  more  correct  indictment  at  the  next  ses- 
aions  of  tiie  peace,  which  they  accordingly  did 
mfcri  and  tne  grand  jury  fuund  it*  And  Mr. 
W«l»b  had,  prol&bJy  for  the  same  reason,  htir- 
ried  an  the  proceaa  npun  the  (irat  indictment  as 
last  at  possible,  and  endeavoured  to  brings  tt  to 
•  trials  in  hopes  to  forestall  and  prevent  any 
proceedings  against  lam  upon  the  second  and 
more  accurate  indictment.  And  as  the  time 
for  trial  upon  the  tirst  indictment  wan  now 
•ppointed,  the  counsel  for  the  pro^culion  this 
wiy  moved  the  Court  to  quash  the  tirst  in- 
tMtfxT) — *  ■■"'■'I  the  jfrouod  ol  the  fore-mentioned 
^^^Hil  t(»  prevent  the  trial   being   had 

Wp*f«  .:, uflered  to  proceed  with  all  expe- 
dition to  trial  upon  the  aecood  imhctment.  And 
Ihe  Court,  after  a  good  many  difficulties,  did 
grant  the  motion,  and  ordered  the  first  indict- 
dait  to  be  qilaahed,  upon  condition  that  the 
second  indictment  shoutd  Ataml  in  the  place 
of  the  first  to  all  inient^  and  purposes,  no 
lliat  it  should  be  tried  at  the  stimtf  time,  anil 
by  Ihe  §nme  special  jury  that  were  already 
•truck  to  try  the  tii^^t  nidictment.  [In  relation 
to  this, fee  lVrry*a  Case,  i,  0.  1793.]  They  said 
Msly,  th.it  a  motion  to  tpiasli  an  in> 
made  by  the  prusecutor  of  the  indict- 
iLn m  wiis  by  no  mean^i  n.  motion  of  course  j 
§0T  that,  if  it  wew,  it  would  Ihj  in  the  power  of 
m  proterotor  purpovely  to  make  his  indictments 
idiifective  in  •ifjme  small  particular,  tind  then  to 
Knnve  to  ipitiHh  them,  and  prefer  new  ones 
"iwfnty  limes  Ofer,  and  thtneby  to  keep  the 
[MTKoo  prosecuted  in  continual  suspense  and 
ioder  the  terror  of  a  prosecution  without  ever 
ingiug  hiin  to  a  trial,  which  would  be  a  very 
••at  opprnwion;  that  therefore  the  Court 
'Otild  always  exercise  their  discretion  in  re^ 
ttion  to  it,  and  either  quash,  or  refuse  to  quasU 
|b«  indictment  at  Ihe  motion  of  the  prosecutor 
«  tlj'  '  i  think  proner  upon  consideration 

t  \l  lances.     A  case  much  relied  on 

B  tiii'v  tiiutioii  by  the  counsel  for  the  pro^ecu* 
was  that  of  the  Kini^-and  Snow,  in  Fujiter's 
of  lire  Crown  Low  ;  nnd   Jud^e  Wil- 
'pientioaed  on  the  other  vide,  to  ^liew  that 
•VIM  not  a  motion  of  course,  the  Case  of  the 
Jog  and  Moore  in  Siran^e^s  Ite[jortP. 

May  31.  Mr.  Webb  wu  Utad  QU  the  lecood 


A.  D.  17<5»- 


[1171 


Indictment  at  1heslttuig«  at  VVcM minster  b«» 
fore  lord  Mansfield,  At^d  it  was  proved  on  ib« 
part  of  the  crown  that  Mr.  Wtfbb  had  bad  a 
key  in  his  band  in  IVIr.  Wilkes^s  house  on  tli« 
foresaid  occasion.  This  was  clearly  proved  by 
three  or  four  credible  witnesses,  who  all  swort 
(positively  to  it ;  and  some  of  them  said  that 
one  of  Ihe  persons  then  present  in  Mr.  Wilkes's 
house  had  observed  it  to  the  reft  at  the  tery 
time,  and  de«ired  them  to  take  notice  of  it  that 
they  might  remember  and  testify  it  clearly  iff 
occasion  should  rcf|uire  it ;  and  that  he  had 
uaed  some  such  wnrdsas  these:  **  I  suppose  if 
any  action  should  be  brotigbt  against  IVfr« 
Wood  or  Mr.  Webb  for  thi**  trespass,  they  wiU 
pretend  that  they  had  no  hand  in  it,  but  were  mera 
lookera  on,  nnd  that  Ihe  messengers  were  tba 
only  actors  in  it.  Tlierefore,  pray,  i^enllemen, 
observe  and  remember  that  Sir  Webb  had  a 
key  in  his  hand  ('^  meaning  that  Mr.  Webb 
had  either  been  opening  or  was  going  to  opeu, 
Mr.  Wilkes's  study  with  it,  it  being,  as  they 
all  declared,  a  large  key  of  the  size  of  a  cbanM 
bcr-key.  This  Set  therefore  of  Mr.  WcW>'a 
having  had  a  key  in  his  hand  on  that  occasion 
seems  to  have  been  sufficiently  proved,  ihouglt 
the  defendant  aftcrwnrds  br^iught  three  or  four 
persnuN*  kingU  messeogerM  and  otlter^,  who 
were  present  at  Mr.  VVjikes*s  house  on  that  oc* 
casion,  who  swore  that  they  did  not  see  any 
key  iu  Mr.  Webb's  httud,  I  hough  they  were 
there  the  whole  time,  untl  pinhably  mut*t  have 
seen  in  it.  But  in  the  hurry  of  that  transac- 
tion it  is  poH<iible  they  might  not  <»h%erve  it ; 
and  therefore  their  evidei»ce  can  never  be  sup* 
|iosed  to  countervail  and  destroy  the  clear  ami 
positive  and  circumstantial  testimony  of  the  wit- 
nesses on  the  afiirmalive  side  of  Ihe  queation. 

The  evidence  concerning  Mr.  Wel*b*8  s^vear* 
ing  at  the  former  trial  was  as  follows:  it  wai 
proved  that  Mr.  Beard  more  had  been  the  last 
witnes<t  exumincd  on  the  side  of  Wilkes  in  that 
trial ;  anil  (hat,  after  reluting  many  impnrtant 
particulars  relating  to  ihe  tn^spass  com  milted 
m  Mr.  Wilkes's  house,  he  had  siiid  that  he  saw 
Mr.  Webb  there  with  a  key  in  his  hand*  That 
sAerwarls  Mr.  Webb,  voluntarily  offering  him- 
self to  be  a  witness  on  the  side  of  Mr.  Wood^ 
had  stvcirn  as  follows; 

'<  One  of  the  witneues  has  sworn  that  ha 
saw  me  with  a  key  in  lay  band.  Now  this  ia 
absolutely  false;  for  I  am  positive  I  had  ii9 
key  in  my  hand  any  part  of  the  time.  lliat 
ujH>n  this  Mr,  Dunuingt  one  of  Mr.  Wilkes^a 
counsel,  had  bid  Mr.  Webb  reflect  seriously  oti 
what  h<>  was  swearinir ;  for  that  they  were 
well  asKureif  that  he  had  bc<m  seen  with  a  key 
in  his  hand.  That  thereu|M>n  IVIr.  Wetthfioin*^ 
what  softened  hi^  dental,  and  said,  **  If  I  had 
a  key  in  my  hand,  I  am  Hure  it  wti»  not  Mr. 
Willces'a  key  :  but  I  am  alm'»i(t  sure  I  hod  nu 
key."  Thot  upon  lhi»  ^Ir.  Uotmui^  hnd  *i«id 
that  that  answer  wsk  nttt  sutfi*  leiiily  direct, 
an»l  that  he  required  a  direct  nnd  ^laitive  an- 
swer from  him  whether  he  hail  a  key  in  hit 
band  on  thai  t>ccaMoii  or  ooL     That  u^oiv  tiiva 


1175] 


S  GEORGE  III. 


Cau  ofGaural  Warrantt, 


tll76 


requisition  of  Mr.  Dunning^,  Mr.  Webb  liad 
finally  said,  '<  Upoo  recollection  T  ara  positite 
that  I  had  no  key  in  my  hand."  And  then 
after  a  little  pause  added,  **  And  it  is  impossi- 
ble that  I  could  have  had  one,  because  I  did  not 
go  up  stairs." 

This  was  the  evidence  which  Mr.  Webb  was 
clearly  proved  to  have  delivered  at  the  former 
trial.  But  Mr.  Webb's  counsel  and  lord  Mans- 
field observing  to  the  jury  that  Mr.  Webb's  de- 
nial of  his  having  had  a  Key  was  not  an  abso- 
lute and  peremptory  denial,  which  they  con- 
tended appeared  from  bis  intermixing  it  with 
the  last-mentioned  reasoning  upon  it,  namely 
that  he  could  not  have  had  it  because  he  did 
not  go  np  stairs ;  lord  Mansfield  representing 
to  th^m  likewise  that  Mr.  Webb  must  all  along 
have  meant  to  denj  only  hit  having  a  key  of 
Mr.  Wilkes's  in  his  hand,  which  he  inferred 
also  from  the  same  words  of  Mr.  Webb  about 
his  not  going  up  stairs ;  lord  Mansfield  also  ia- 
forming  the  iur)r  that  unless  the  point  in  which 
a  material  witness  in  a  cause  is  contradicted  by 
another  witness,  who  swears  falsely  in  so  con- 
tradicting him,  be  a  point  so  material  to  the 
issue  in  question,  (though  it  need  not  be  the 
issue  itself)  that  if  it  be  false,  the  issue  must 
remain  totally  destitute  of  evidence,  the  per- 
jury so  committed  1^  the  second  witness,  even 
though  Ir  were  wilful,  is  not  a  crime  punishable 
by  the  law,*  but  only  a  heinous  moral  sin ;  and 
then  observing  to  them  that  the  point  in  which 
Mr.  Webb  contradicted  Mr.  Beardmore  was 
not  a  point  so  materially, connected  with  the 
issue  in  that  trial :  and  lastly  informing  them 
that  unless  a  man  swore  to  a  falsehood  know- 
ing it  to  be  false,  lie  was  not  guilty  of  wilful 
and  corrupt  |)erjury  ;  and  observing  likewise 
that  there  was  some  room  to  doubt  whether 
vhat  Mr.  Webb  had  sworn  was  in  itself  false 
or  no,  since  there  were  three  or  four  witnesses 

»  **  Perjury,"  says  lord  Coke,  3  Inst.  164, 
**  is  a  crime  committed  where  a  lawful  oath  is 
ministered  by  any  that  bath  authority  to  any 
person  in  any  judicial  proceeding  whosweareth 
absolutely  and  falsely  in  a  matter  material  to 
the  issue  or  rause  in'question  by  their  own  act 
or  by  the  subornation  of  others."  Ho  then 
proceeds  to  **  peruse  the  branches  of  this  de- 
scription." See  also  4  Blackst.  Comm.  book 
4,  p.  137. 


Chat  had  sworn  that  they  had  been  pHeMat  tt 
Mr.  Wilkes's  all  the  time,  and  bad  seen-  Mr. 
Webb  there,  but  bad  not  aeeo  him  with  a  key 
in  his  hand :  the^  jury,  after  a  octealtatkm  oi 
an  hour  and  ten  minutes,  (daring  wbidi  tifl» 
kH-d  Mansfield,  growing  impatient^  aenta  mmb- 
sage  to  them  by  one  of  the  offieera  of  tbt 
coort  to  desire  them  to  hasten  their  Ter&O 
brought  in  their  verdict  that  he  wae  NH 
Guilty. 


I  apprehend  that  the  followinff  niWMi  it 
the  celebrated  *  Letter  concerning  LiMa,  Wsf 
rants,  Seizure  of  Papers,'  tec.  relatea  to  aan»> 
thing  which  had  been  said  by  lord  Manaftddii 
the  House  of  Lords  in  relation  to  the  OMiif 
Mr.  Webb. 


"  I  will  ask  the  Attorney  what  opinion  bl 
would  have  of  the  veracity  of  a  judge,  ivH 
having  tried  an  old  gentleman  for  perioiTi 
where  there  were  four  positive  witneHSS  nr 
the  prosecutor  to  the  wimls  being  sfMte^ 
which  were  charged  and  which  were  proMb 
in  the  nature  of  the  case,  and  four  witnesscihr 
the  defendant,  in  short  his  followers,  whotirsit 
that  they  were  very  near  their  master,  aid 
must  have  beard  the  words  had  they  bss 
spoken,  and  they  heard  theui  not  ;  and  tfai 
the  judge  thereupon  found  it  neceMary  is 
labour  to  the  jury  the  chaiacter  and  tbrluatrf 
the  defendant,  and  tht*  utter  improbability  tf 
his  having  denied  upon  oath  hin  having  otlcfsi 
the  words,  had  he  really  utiere<l  them;  aid 
that  after  a  good  deal  of^^hraiiatiitn  and  i 


the  jury  at  last  acqiiitteil  tht*  defendunt ;  I  sw, 
after  such  an  acquittal,  what  woultl  onetbisc 
of  a  jtidi^e  who  should  in  a  fiuiilic  assemUj 
wantonly  and  unnecessarily  men -ion  thiscasei 
and  declare  there  was  not  the  least  oolsor 
or  pretence  for  the  pn»ecuti(»n  P  What  ilic  At- 
torney may  say,  1  know  not ;  hut  I  am  suif^ 
for  my  own  part,  1  would  never  aft«r|raf# 
give  such  judge  credit  for  a  fact  he  ahoul^d- 
vance  upon  his  own  testimony  only, 
glad  J  might  be  to  hear  his  reasoning^  upoo 
subject  whatever.  For,  ingenuity  is  one  tf 
and  simple  testimony  another,  and  ^  plain  t 
(1  take  it)  *  needs  no  fiowers  of  speech.'"  [I 
Pope's  Imitation  of  Horace,  book  1,  £p.  ^  f 
«*  Plain  truth,  dear  Mtirray,  needs  no  flovcn 
of  speech.^'] 


Trial  of  Lord  Byron* 


A*  D.  1765. 


[117S 


The  Trial  of  William  Lord  BrRON,  Baron  Bvron  of  Roch- 
dale, for  the  Murder  of  William  Chaworth,  esq, :  Before  the 
Right  Hon.  House  of  Peers,  in  Westminster-hal^  in  full 
Parliament,  on  Tuesday  the  l6th,  and  Wednesday  the  17th 
of  April:  5  George  ni.  a.  d*  \76S. 


i 


tTuudoy,  April  16,  1765. 
?ourt  er^ted  in  Westminster- Hall,  for 
Trial  of  William  lord  Byron,  tor  the 
rder  of  William  Chaworib,  esquire. 
T  eleven  of  the  clock  tbe  Lords  came 
CI  titeir  own  house  into  the  court  erected  in 
itminater-bftll,  for  the  Trial  of  WilUmtn  lord 
"^fii  in  the  manner  fottowioi^ : 
be  Lord  High  Htew^ard's  g;enllemen attend* 
I,  two  and  iwo. 

be  clerks  assistant  to  the  House  of  Lords, 
the  clerk  of  the  parliament. 
Jerlt  of  the  crown  in  Chancery,  bearing  the 
fm  CommissioD  to  the  Lord  High  Sten^ard, 
tbe  clerk  of  the  crowo  in  tbe  Ring's- 
!b. 

he  masters  m  chancery,  two  and  two. 
'he  judges,  two  and  two. 
*be  peers  eldest  sons,  two  and  two. 
^eers  minors^  two  and  two, 
"heitcr  and  Somerset  heralds. 

seijeanti  at  arms  with  their  tnacesy 
two. 
f  eotnan  usher  of  the  House. 
arons,  two  and  two^  beginning  wiib  tbe 
it  baron. 

shops,  t\io  and  two, 
iriacounts  and  other  peers,  two  and  two, 
ord  privy  seal  and  lord  president. 
|mrchbisb»p  of  York  and  the  archbishop 

bury. 
^Serjeants  at  arms  with  their  maoet,  two 

^Serjeant  at  arms  attending  the  great 

1  purse- hearer. 

Carter  king  at  arms,  and  the  gentle- 
her  of  ibe  Black  Itotl  currying  the  while 
'before  the  Li>r4  IJiuh  Siev^ird. 
jAbert  earl  of  NoriliiDirtno,  chancellor  of 
■Hrilaio,  Lord  High  Steward,  alone,  bis 
Hanie, 

ls»  roval  highness  the  duke  of  Gloucester, 
niu  borne. 

lis  royal  bigbDesa  the  duke  of  York«  his 
I  borne. 

lie  Lords  lieiiig  placed  in  their  proper  seaU, 
ihe  Lord  High  Steward  upoo  the  wool* 
e,  tbe  Hou«e  was  resumed. 
he  clerk  of  the  crown  in  Chancery,  haTing 

»ly*«  CVimnji«^ion  to  the  Lurd  High 
[in  bis  limid,  and  the  clerk  of  the  crown 

ngVtNsnch,  stand ing  Ix^furc  the  clerk's 

I  iMf  f«c«B  towards  the  state,  made 
tbe  fimt  at  the  table,  the 
iftd  in  tae  midwa^p  md  tb<  liurd  near  the 


woolpack ;  then  kneeled  down  ;  and  the  clei^ 
of  the  crown  in  Chancery,  on  his  knee,  pre- 
sented the  Commission  to  the  l^ord  High 
Steward,  who  delivered  the  same  to  the  clerk 
of  the  crown  in  the  Klng^s -bench  to  read  ; 
then  rising,  they  made  three  reverences,  and 
returned  to  tbe  table.  And  llieu  proclamatioa 
was  made  for  silence*  tn  this  manner ; 

Serjeant  at  Arms.  Oyez,Oyez,  Oyez !  Our 
sovereign  lord  tbe  king  strictly  charges  and 
commands  all  manner  of  persons  to  keep 
silence,  upon  patn  of  imprisonment. 

Then  the  Lord  High  Steward  stood  np^  and 
spoke  to  the  Peers. 

Lord  High  Steward.  His  majesty *8  Com- 
mission b  about  to  be  read  :  your  lordships 
are  desired  to  attend  to  it  in  the  usual  manner; 
and  all  others  are  likewise  to  stand  up  unco* 
vered,  while  the  Commission  is  reading. 

All   Ihe  Peers  uncovered  themselves;  and 
they,  and  all  others,  stood  up  uucovercd|  wbd# 
tbe  Commission  was  read. 
"  GEORde  R. 

**  George  the  third,  by  the  grace  of  God,  of 
Great  Britain,  Prance,  and  Ireland,  kihg,  de- 
fender of  ihe  faith,  and  no  forth,  to  our  ri^lit 
trusty  and  right  welUhetoved  cousin  and  crmn- 
sellnr  Robert  earl  of  Northiiigton,  our  chao* 
cellor  of  Great  Britain,  grcftiog  ;  Kntiw  ye» 
That  whereas  William  Byron,  buron  Byron  of 
Rochdale,  lale  of  the  parish  of  Si.  James, 
with  1  n  Ihe  liberty  of  Westmiiiiiter,  in  our  counl^ 
of  Middlesex,  in  r»ur  cruirt  at  WcMni Ulster,  m[ 
Ihe  said  county  of  Mtddlei^ex*  liefore  our  jus- 
tices a«(9»gned  to  hold  pleas  hrfote  us,  Uaiuls 
indicted  upon  ilit  01*1  h  nf  twelve  jurors,  good 
and  lawful  men  ttf  tlie  smd  cuunty  o(  !^liddle^ 
sex,  then  and  there  swurn  and  tti urged  to  en- 
quire lor  us  h»r  Ibe  Utnly  of  tht*  mud  ct»ii»lv»  of 
felony  and  inarrlt^r,  by  him  llie  suid  Wilhsui 
By  ran,  buron  Byron  %it  lt«»«  hdnle,  dune  and 
couimitteil ;  We.'considtfriug  ihnt  ju»itici»  is  an 
excellent  virtue,  and  pU'a*uitf  to  tbe  iMosI 
High  \  and  btii»g  willing  iliui  the  said  William 
Byron,  baron  Bynm  nt  Rot  lidali',  of  and  for 
(he  felony  and  murder  wher*"**!  he  is  indicU^d 
as  aforesaid  before  us»  in  "ur  prmenl  puilia- 
inent,  jiccnrdin^i  10  ilie  law  and  cii»<ii»m  *d  our 
kingdom  of  Gieoi  Bntuin*  inny  Iw  Iteard,  exa* 
miin-d,  sentenct-d,  ami  adjiHlj^ttl  ;  ami  ihut  «U 
ottier  things  whicli  ore  nec*aw»ry  on  ihi«  ucra« 
sion  may  be  duly  e:£«'rct*cHl  ami  r\«cut«il  ;  nod 
for  that  the  office  of  Hi^h  Steward  «t  Gri^^i 
Britain  (wUoae  prcaence  u|k»ii  ibii  occiiiMni^  Si^ 


I 


1179] 


5  GEORGB  lU. 


Trial  ^Lord  Byront 


[UN 


required)  is  now  vacant  (as  we  are  informed ;) 
we,  very  mnch  confiding  in  your  fidelity,  pru- 
dencev  prof  ident  circntnspectioD,  and  industry, 
have,  for  this  cause,  ordained  and  constituted 
you  Steward  of  Great  Britain,  to  bear,  exe- 
cute»  and  exercise,  for  this  time,  the  said  office, 
with  all  things  due  and  belonging  to  the  same 
office  in  Ihia  fadialf:  and  therefore  wecom> 
mand  you,  that  you  diligently  set  about  tha 
premises,  and,  for  this  time,  do  exercise  and 
execute,  with  effect,  all  those  things  which  be^ 
loiMr  to  the  office  of  Steward  of  Great  Britain, 
ana  which  are  required  in  this  behalf.  In  wit- 
ness whereof,  we  have  caused  these  our  lettem 
to  be  made  patent  Witness  onrself  at  West-^ 
minster,  the  fifteenth  day  of  April,  in  the  fifth 
year  of  our  reign. 

*<  By  the  king  hinnelf,  signed  with  his  own 
hand.  Yorkb  and  Yorke." 

Serjeant  at  Amu,  God  save  the  king. 

Then  Garter,  and  the  gentleman  usher  of 
the  Black  Rod,  after  three  reverences,  kneel- 
ing, jointly  presented  the  white  staff  to  his 
grace  the  Lord  Hitfli  Steward  :  and  then  hia 
grace,  attended  by  Garter,  Black  liod,  and  the 
Purse-Bearer  (making  his  proper  reverences 
towards  the  throne)  removed  trum  the  woolpack 
to  an  armed  chair,  which  was  placed  on  the 
uppermost  step  but  one  of  the  throne,  as  it  was 
prepared  for  that  purpose;  and  then  seated 
nimself  in  the  chair,  and  delivered  the  staflT  to 
the  gentleman  usher  of  the  Black  Rod  on  his 
right  hand,  the  Purse-Bearer  holding  the 
purse- on  his  left. 

Clerk  of  the  Crown,  Segeant  at  Arms,  make 
proclamation. 

Serjeant  at  Arms.  Oyea,  Oyez,  Oyez !  Our 
sovereign  lord  the  king  strictly  charges  and 
commands  all  manner  of  persons  to  keep 
silence,  upon  pain  of  imprisonment. 

Then  the  Clerk  of  the  Crown,  by  direction 
of  the  Lord  High  Steward,  read  the  Certiorari, 
end  the  Return  thereof,  together  with  the 
Caption  of  the  Indictment,  and  the  fnilictment 
certified  thereupon,  against  Wilh'am  lord 
Byron  ;  in  hac  verba  : 

*<  George  the  third,  by  the  grace  of  God,  of 
Great- Britain,  France,  and  Ireland,  king,  de- 
fender of  the  faith,  and  so  forth,  to  onr  right 
trusty  and  well-beloved  William  lord  Mansfield, 
our  chief  justice  appointed  to  hold  pleas  before 
us,  greeting;  we  being  willing,  for  certain 
reasons,  that  all  and  singular  indictments  of 
whatsoever  felonies  and  murders  whereof  Wil- 
liam Byron,  baron  Byron  of  Rochdale,  late  of 
the  parish  of  St.  James,  within  the  liberty  of 
>¥e6tmin8ter,  in  our  county  of  Middlesex,  is 
indicted  before  you  (as  is  said)  be  determined 
before  us,  and  not  elsewhere ;  do  command  you, 
that  you  do  send  under  your  seal  before  us,  in 
onr  parliament,  immediately  afWr  the  receipt 
of  this  our  writ,  all  and  singular  the  indict- 
ments aforesaid,  with  all  things  touching  the 
«!  by  whatsoever  Dame  the  said  WUliam 


\ 


Byron,  baron  Byron  of  Rochdale,  is  called  ia 
the  same ;  together  with  this  writ,  that  «e 
mar  cause  further  to  be  done  theivon,  whaitf 
right,  and  according  to  the  Iftw  smd  custom  4, 
England  we  shall  see  fit  to  b*  done.  Witsa 
ourself  at  Westminster,  the  twenty-eighth  d^ 
of  February,  in  the  fifth  year  of  onr  reigo. 
"  YoRU  and  Yoau." 

LaheL-^*^  To  the  right  honourable  WiHsa 
lord  Mansfield,  chief  justice  appoint»t  to  InU 
pleas  before  the  king  himself,  a  writ  of  Certi* 
orari,  to  certify  into  the  upper  Hoilse  of  Fte^ 
liamentthe  indictment  found  against  WilHai 
Byron,  baron  Byron  of  RoehdMe,  for  midi^ 
returnable  immediately^  before  the  king  in  s«* 
liament.  Yorke  and  Yoasx."* 

Indorsed.  "  By  order  of  the  Lords  spirilHl 
and  temporal,  in  parliament  asoeinblad,by  virtii 
of  the  within  wnt  to  nedireeted,  I  wnadUm 
sovereign  lord  the  king,  in  this  pilBsettt  psrii- 
ment  under  my  seal,  the  indictment  wiiii 
mentioned,  with  all  things  touchiog  the  wmtk 
in  certain  schedules  hereunto  anneawdy  as  I  m 
within  commanded.  Mmsmw.* 

"  Middlesex.  Be  it  remembered,tbat  on  n» 
day  next  after  the  octave  of  the  PurificatisBrf 
the  blessed  Virgin  Mary,  in  the  5th  year  sf  tt 
reign  of  our  sovereign  lord  George  ibc  9(I«W 
the  grace  of  God,  of  Great  Britain,  Franes^M 
Ireland,  king,  defender  of  the  faith,  in  the  omI 
of  our  lord  the  king,  before  the  king  himsdfil 
Westminster,  in  the  county  of  Middleseit  *P* 
the  oath  of  Philip  Dyott  of  Dyott-strcct.  d^ 
John  Chace  of  Great  Russel- street,  esq.  H«a{ 
Raper  of  John-street,  esq.  Robert  Hucfa  « 
Great  Russel  street,  esq.  Oliver   CMrhiB  if 
the  same,  esq.  Anthony  Chapman  of  GM 
Ormond-street,  esq.  Charles  Sheppard  of  H» 
well -hill,  esq.  Thomas  Singleton  of  FiocUcfi 
esq.  Georfire  Mertios  of  ifatton  Garden,  «a 
Gideon  Arbouin  of  the  same,  esq.  John  Ficaa 
of  the  same,  esq.  William  Clarke  of  Claploi^ 
esq.  Abraham  Ogier  of  Clapton,  esq.  Edeiri 
Nourse  of  Hammersmith,  esq.  John  Anderntf 
of  Henrietta -street,  esq.  George    Mercer  tf 
Bolsover- street,  esq.  Isaac  Lefevre  of  Siepscf- 
green,  esq.  Henry  Mason  of   Great  Rund- 
street,  esq.  George  Wright  of  Baldwin*s-ga^ 
dens,  esq.  Liscombe  Price  uf  Islington,  csfi 
Charies  Digby  of  Mile-end,  eso.  Richard  1^ 
well  of  Edmonton,  esq.  and  John  Duvalf  ■ 
Portugal -street,  gentleman,  good  and  lawfid 
men  of  the  county  of  Middlesex,  then  mi 
there  sworn  and  charged  to  enquire  for  our  vH 
lord  the  king,  for  the  oody  of  the  said  cooiSf 
of  Middlesex. 

«  It  is  presented  that  the  Bill  of  IndidDC^ 
hereto  annexed  is  a  true  bill.  Bcuov. 

'*  Middlesex.  The  j urors  for  our  lord  the  kiif i 
upon  their  oath,  present,  that  the  right  hooov 
able  William  Byron,  baron  Byron  of  Hoehdd^ 
late  of  the  parish  of  8aint  James,  within  Ika 
liberty  of  Westminster,  in  the  county  of  W^  | 
diesex,  not  having  the  fear  of  God  beftre  &>> 
eyssy  bat  bsing  mof ed  and  aedoosd  bj  tfctii' 


f  the  ifetiU  on  the  actb  ilay  of  Janu* 
le  5ih  yenr  of  the  reigu  of  our  love* 
'  G<-ori(e  th«  5(]f  by  the  grnce  of  Gi>fl, 
BrilHitit  Francpf  and  IrelautK  kin|^, 
er  ot  the  tai(h|  anil  s(f  forth,  ^ith  force 
Mf,  At  the  parish  aforeaaidf  in  the  county 
&  in  DtiU  upon  one  William  Chaworth, 
Be  ]»race  of  God,  and  our  said  lord  xiw 
Bn  And  there  beingf  feloniouBlyi  v% ti- 
ll of  his  tiialice  aforethought,  did  make 
feoll,  and  that  the  said  WilHam  lord  By- 
III  a  certain  dword  drawn,  made  of  iron 
^of  the  value  of  bi.  which  he  the  said 
Hord  Byron,  in  his  right  hand  theu  and 
■  and  held,  him  the  said  VViUiain  Cha- 
B  atid  U[)on  the  left  side  of  the  belly  of 
F William  Chaworth^  near  the  navel  of 
I  Wilhiim  Chaworlh,  then  and  there  fe- 
,  wilfully,  and  of  bis  malice  alore- 
i4Jid  strike,  Ihrusl,  Htab,  and  pent  irate, 
the  said  William  Chaworth,  tvith  the 
iwa  wm  aforesaid,  in  and  iinon  the  ^id 
Ibe  belly  of  the  said  Witlium  Cha- 
ir the  navel  of  the  aaid  William  Cha- 
mortal  wound,  of  the  depth  of  iix 
id  of  the  breadth  of  half  an  inch  ;  of 
id  mort;i)  u'ound  the  said  William 
I  at  tliM  «»id  parish  of  Saint  Jaines^ 
liberty  of  ^Ves(tiur»sler,  in  the  said 
Middli*vp]c,  and  al^o  at  the  parish  of 
Hanover-sifuare,  within  the  li- 
niiii&ter  aforei»aid,  in  the  same 
he  aaid  26tli  day  of  January »  iti 
jaid,  until  the  27th  day  of  the 
ilh,  in  the*  «ame  year,  did  tauffuish, 
ii*lMit*y  iIhI  Jive;  on  which  said  27th 
I  the  year  aforeaaid,  the  said 
Ml,  at  the  said  parish  of  8aint 
Hanover- square,  in  the  liberty  of 
Iter  aibrcsaid^  in  the  said  county  of 
^  of  the  Buid  mortal  wound  did  die : 
le  jiirorii  afurpfatd,  upon  their  oath 
do  say,  thit  the  i$aid  William  lord 
Im  the  ftaid  William  Chaworth,  in 
ind  form  aforesaid,  felouiousdy,  wil- 
11  f  his  malice  aforelhoughl,  did  kill 
'r,  aG[uiti»t  the  ne ace  of  our  tatd  lord 
his  cronn  and  tli|rni(y, 

ri.^John  Ilewett,  esq.  Frederick 
esq.  John   Hhcrv^in,  esq*  George 

efrii.  Francis  Mo1ineux«  esq.  the  hou. 

Wllouchby,  esq.  Citsar    Hawkins, 

pny  Addinirton,  esq.  John  Edwards, 
^■inroore,  Thomas   Wally  Partington, 

iin  Ix'vinZ)  esq.  llobert  Adair,  exq. 

I  in  courts  A  true  Bill.'- 

Vtgh  Sttrward.     Is  it  your  lordship^^ 
tlist  the  Judifcs  liave'lemTe  to  be  ca- 


Ay,  tiy. 


nt  flt  Armi,  make 
I    ni  of  the  Tower  to 
^rimyiicr  to  iht;  bDr. 

Armi,  Oyejt !  Oyex!  Oyt-ifi  1  I>ieii- 
till*  Triwer  of  Loudon,  Wiog  forth 


William  lord  Byron,  your  prisoner,  io  the  btri 
purHOstit  lo  the  order  of  the  House  of  Lords. 

Then  Williatii  lord  Byron  wai  brought  lo 
the  bar  by  the  deputy*cfQvenior  ol  the  Towcfi  • 
having  the  axe  carried  before  him  by  the  gco* 
t)eman*gaoter,  who  stood  with  it  on  the  left 
haiid  of  tlje  prisoner,  with  the  edge  turne<i  ftooi 
him.  The  pri(«oner  wit  en  he  approached  tht 
bar  made  three  reverences,  and  then  ietl  upoa 
his  knees  at  the  bur. 

L.  H.  iS.  Your  lordship  may  rixe. 

Theu  the  nrisoner  rose  up,  and  bowed  to  hifl 
errace  the  Ljrd  Hi|^h  Steward,  and  to  tbf 
Jlou^eof  iVkir9;  which  compliment  was  re*' 
lurued  him  by  his  ^race,  and  the  Lords. 

Then  proclamation  having' been  agnin  mad« 
for  silence,  the  Lord  Hi|fb  Steward  spake  l^ 
the  prisoner,  is  liillons  : 

Lord  fli/^h  Stemord.  William  lord  Byron  j 
Your  lordjsliip  is  unhappily  brought  to  this  liar 
to  answer  a  heavy  and  dreaitful  accusation, 
for  you  are  charged  >%ith  the  murder  of  a  feU 
low- subject. 

The  solemnity  and  awful  appearance  of  this 
judicature  must  naturally  embarrass  and  iS^' 
compose  your  lordship's  spirits,  whatever  in* 
ternal  resource  you  may  have  in  conscience  to 
support  you  in  your  defence. 

Jt  may  be  therefoi-e  not  improper  forme  to 
remind  your  lordship,  that  yon  are  to  be  tried 
by  the  fixed  and  nettled  laws  of  a  free  country, 
framed  only  to  protect  the  innocent,  to  distin^ 
gnish  the  degrees  of  offence,  and  vindictivo 
only  against  malioeand  preineditateiJ  mischief. 

Homicide,  or  the  killing^  of  a  fellow  crea- ' 
lure,  i^  by  the  wisdom  of  the  law  distin- 
guished into  classes  ;  if  it  by  accident  arisetb 
from  necessity,  or  is  without  malice,  it  is  not 
murder ;  and  of  these  distinctions,  warranted 
by  evidence,  eifevy  f>erson»  though  accused  by 
a  graiid  jury,  standing  indifferent,  is  at  full 
liberty  to  avail  himself. 

\^  an  additional  consolation,  your  lordship 
will  reflect  that  you  have  the  happiness  to  ba 
tried  by  the  supreme  judicature  of  this  nation  ; 
that  you  can  receive  nothing  from  your  peers 
but  justice,  distributed  with  candor;  delivered 
too  under  the  strong-est  obligation  upon  noble 
minds,  honour.  Theiie  considerations  wtll»  I 
hope,  compose  your  lordship's  mind,  fortify 
your  spiritij,  and  leave  you  free  for  your  de- 
fence. 

Before  I  conclude,  1  am,  by  command  of 
the  Houst',  to  inform  your  lordnhip,  end  all 
others  that  shall  have  occasion  to  speak  to  the 
Court  ilurini^  the  trial,  that  they  are  to  address 
themsetvrs  to  the  liOrds  in  genera)|  and  not  to 
any  lord  in  particular, 

L.  H,  S.  William  lord  Byron,  yoyr  lordthip 
will  do  well  to  give  attentjoo,  while  you  ar^ 
arraigned  on  your  indtctruent. 

Theti  prochtmaiion  was  made  for  silence. 

After  which,  William  lord  Byron  wwt  «r* 
mti^ned,  in  the  form  of  the  4atd  inibctmciit 
nt^^ninnt  him,  by  the  clerk  uf  tl^  crown  iu  tht 
Kiug*i-bcn(:b. 


1183] 


5  GEORGE  m. 


Trial  of  Lord  ByroHf 


[IIM 


CL  of  the  Cr.  How  say  you,  'William  lord 
Byron,  are  you  gaiJty  of  the  felony  mod 
murder  whereof  you  stand  indicted,  or  not 
guilty  ?— Lord  Byron.  Not  Guilty,  niy  lords. 

Cl.qftheCr.  Culprit,  how  will  your  lord- 
thip  be  tried  f — Lord  Byron,  By  God  and  my 
peers. 

CL  of  the  Cr.  God  send  your  lordship  a 
good  deliverance. 

CL  of  tlie  Cr.  Seijeant  at  Arms,  make  pro- 
•lawaliun. 

Serj.  at  Arm$.  Oyez !  Oyez !  Oyez  !  .All 
manner  of  persons  that  will  ip?e  evidence,  on 
behalf  of  our  sovereign  lord  the  kinip,  against 
William  lord  Byron,  the  prisoner  at  the  bar, 
let  them  come  forth  and  they  shall  be  heard  ; 
for  now  he  stands  at  the  bar  upon  bis  deliver- 
ance. 

L,  H.  S,  My  lords,  the  distance  of  this 
place  from  the  bar  is  so  great,  that  1  must 
desire  your  lordships'  leave  to  go  down  to  the 
table  for  the  convenience  of  hearing.— Zor</«. 

-Ay,  ay. 

Then  his  grace  removed  to  the  table. 

Mr,  CornvaU.  May  it  please  your  lordships; 
William  lord  Byron  stands  indicted  by  the 
grand  jury  of  the  county  of  Middlesex,  for 
munler;  and  the  indictment  sets  forth,  that 
William  lord  Byron,  on  the  26tb  day  of  Janu- 
ary, in  the  6th  year  of  his  present  majesty's 
reign,  with  force  and  arms,  at  the  parish  of  St. 
James,  in  the  county  of  Middlesex,  feloniously, 
wOfully,  and  of  his  malice  aforethought,  did 
make  an  assault  in  and  upon  one  William  Cha- 
worlh,  esq.  and  with  a  sword  drawn,  then  in 
his  ri^ht  hand,  in  and  upon  the  left  side  of  the 
belly  of  the  said  Willinm  Chaworth,  did  strike 
and  stab,  givint;  to  the  said  William  Chaworth 
a  mortal  wound,  of  the  depth  of  six  inches, 
and  of  the  breadth  of  half  an  inch;  of  which 
wound  the  said  William  Chaworth,  at  the 
parish  of  St  James  aforesaid,  and  also  at  the 
parish  of  St.  George,  Hanover-square,  lan^'uish- 
ed  from  the  26th  day  of  January  aforesaid,  till 
the  27th  day  of  the  same  month,  in  the  year 
aforesaid,  and  then  and  tliereof  the  said  mortal 
wound  died  ;  and  the  jurors  aforesaid  upon 
their  oath,  say,  that  the  said  William  lord 
Bvron,  the  said  William  Chaworth,  in  manner 
aforesaid,  feloniously,  wilfully,  and  ol' his  ma- 
lice aforethought,  did  kill  and  murder. 

To  this  indictment  the  noble  prisoner  at 
the  bar  has  pleaded  Not  Guilty,  and  hath  put 
himself  upon  your  lordships  his  peers  for  trial. 

It  is  our  duty  to  produce  to  your  lordships 
the  evidence  we  have  to  offer  in  support  of  this 
charge ;  your  lordships  will  determine  u|K)n 
that  evidence,  and  give  such  judgment  as  your 
lordships  shall  think  the  justice  of  the  case 
sequires. 

Mr.  Attorney  General,  (Sir  FUtchei:  Nor- 


ton,*  knig^)  May  it  pleue  yoor  k»Mipi« 
1  am  likewise  of  couoael  for  thia  proseootioB; 
and  by  the  indictment  wrhieh  has  been  opensd, 
your  lordships  have  beard  that  the  noble  pri- 
soner at  the  bar  is  charged  with  one  of  tbt 
highest  offences  that  human  nature  is  cipiWi 
of  committing,  nothing  less  than  shedding  tbt 
blood  of  a  fellow-creatnro. 

My  lords,  1  need  not  enlairge  npon  this  nb* 
ject,  the  crime  itself  is  incapable  of  aggrafi- 
tion ;  it  is  my  province  to  lay  before  your  M- 
ships  the  sUte  of  tlie  evidence  winch  will  W 
produced  in  support  of  the  charge  ;  and  u  il 
IS  not  my  duty,  so  neither  is  it  my  indiaalioa 
to  exaggerate  any  thing  upon  this  oocam; 
but  public  justice  requires,  that  the  wMs 
proof  should  be  brought  folly  and  fiurly  bdnt 
your  lordships. 

I  hope  it  will  neither  be  thought  impertiifld 
or  improper  for  me  to  make  some  general  i^ 
servations  upon  tbt  Uw,  whidi  nuj  itiptcl 
the  offence  now  under  consideration  ;  the  Hi- 
lity  and  application  of  which  yoor  lordibi|a 
will  see  in  the  course  of  the  evidence. 

My  lords,  as  it  will  be  proved  beyond  adosK 
in  the  course  of  these  proceedings,  thai  tbt  ds> 
ceased  fell  by  the  bands  of  the  noUa  prima 
at  the  bar,  J  shall  tberelbra^ake  that  fhetftr 
granted ;  and  if  so,  every  presumption  ito  kv 
arises  against  him  ;  and  it  will  be  inco»Wat 
upon  the  prisoner  to  exculpate  hionself  ia  ihs 
best  manner  be  is  able ;  for  thong^  evciy  bs> 
micide  is  not  murder,  yet  every  homiddeipri* 
ma  faciei  is  so,  and  it  is  required  of  the  pi- 
soner  to  make  out,  that  the  fact  of  kilfiaf  ii 
this  case  was  not  committed  under  ciicasi- 
stances  which  will  make  it  murder :  and  1  atf- 
mit  the  law  will  allow  the  prisoner  to  ahewde 
homicide  justifiable,  excusable,  or  done  eodcr 
such  circumstances  of  extenuation,  as  to  is- 
duce  your  lordships  to  think  it  was  not  dose 
with  malice  aforethought,  and  then  it  will  ba 
manslaughter,  and  not  murder. 

It  is  clear  in  point  of  law,  if  there  beaqov- 
rel,  and  the  parties  afterwards  have  time  It 
cool,  and  alter  that  they  fight,  and  one  falls,  be 
who  survives  has  been  guilty  of  murder ;  orif 
the  manner  in  which  the  fact  was  done  be- 
speaks a  depravity  of  mind,  and  a  wickedoe* 
of  intention,  that  will  make  it  murder. 

My  lords,  as  this  case  must  depend  upoD  a 
very  nice  and  strict  enquiry  into  all  thecircoia- 
stttuces  that  accompanied  the  fact,  ioonlertf 
mark  the  offence  with  one  or  other  of  tbe«ed^ 
nominations  (for  an  offence  manslaughter  is  is 
the  eye  of  the  law),  so  I  am  persuaded  y<iar 
lordships  will  attend  carefully  to  the  evidcocs 
which  may  be  produced  ;  aD«l  I  am  coeviacc^ 
we  shall  hear  such  a  judgment  from  your  M- 

*  In  1770  he  was  elected  Speaker \f  dl 
House  of  Commons,  which  office  he  filled  s» 
til  the  dissolution  in  July,  1780,  of  the  pariii* 
nient  which  had  been  called  in  the  year  1771 
At  the  meeting  of  the  pariiameot  whicb  sii 
called  in  1780,  be  was  propoKd  to  be  Spcihtfi 
but  r^ecteiL 


4165] 


Jot  MurdtY% 


•li}|iv  as,  uotlcT  all  the  circuinsfiinces  of  ilie  ^ 
ci^e.  juKtice  sbatt  require :  ant)  ihist  must  ftfioni 
nifttter  of  lki«  g^atest  consol&lion  to  the  noMtf 
prisoner  al  tbe  bar  (if  he  is  inniicTiit)!  liecau&e 
yciur  lordships'  uiiflersianiHiijr  canuot  be  de- 
ceifvil,  nor  )<uur  itid^mcnt  biassed  :  but,  ou  Ihe 
other  hiitiilf  if  hi9  lordship  in  g-iiitiy  of  the 
offence  laid  to  his  charge,  he  nniht  know  ihiit 
no  art,  no  suhterfiicre,  no  mauai^einenl  will 
avail  him  \  innocence,  and  inuoceuce  alone  can 
lis  support  and  defence, 

Hnvinii^  Hii\i\  thifi,  ^ive  me  leave  to  observe  to 
r  lordships  the  liappiucsa  of  this  constitu- 
tion under  bo  ;;rnciuiis  a  prince  aii  bi<i  prt^nent 
itiaje«ty»  >*hii  uinis  ul  uo  otiier  rule  id  jjoreru* 
ment  than  that  i«  hieb  tht^  law  prefer il^»,  and 
has  no  other  wiiih  thun  that  in  all  ciu»c<«,  and 
t)veratl  persons  inchiicriniinately^  the  law  shuiild 
Ims  impartially  attrfuni^tered  *  and  when  the 
lawt  are  thus  aflmiMiMt^redt  <ind  allowi-d  their 
due  force,  nuch  is  the  excellency  oftht?  En)^li«h 
constitution,  that  the  meanest  subject  Im  not 
beneath  thrir  protection,  nor  the  highent  be- 
\cind  their  reach.  Thut  to  be  governed  is  the 
*foM  pierf^^ction  c*f  civil  liberty. 

On  the  ^ioth  of  January  last,  the  noble  pri^ 
■oner  at  tbe  bar,  the  deccasied^  and  many  n)ore 
^f  rank  and  fortune  of  the  cotuity 
iim  inet,  ai«  they  nsnally  did  once 

vicck,  to  litue  togfeiber  at  the  Star- and -Garter 
lavein,  in  PulUmiiJ) :  in  the  course  of  the  dinner 
there  tta«  nothini^  but  good- humour.  About 
aeven  at  %\\\^\\X  the  conversation  turned  upon 
theiubjeci  ufg^me:  upon  this  occasion,  Mr, 
Chaworth  had  something  of  a  dispute  with  the 
gentleman  who  sat  next  him,  about  tbe  be^t 
tnethoil  of  preserving  the  giime.  Tbe  prisoner 
at  the  bar  interfered  upon  that  subject,  and 
said,  in  hi<i  opinion,  the  way  lo  have  ^ame  was 
In  take  no  care  of  it.  Mr.  Chaworth  liappcru'd 
to  be  of  a  diHerent  opinion,  and  thought  the 
best  way  waa  to  be  si  riot  with  poachers,  nnd 
fUercby  preserve  the  jfame  ;  thii  drrw  on  some 
altercation.  JUr.  Chaworth  added,  that  he  be- 
lieved ibere  wan  not  a  hare  in  ttiat  pari  of  the 
country,  but  what  was  prcBCrvctl  by  himsirlfor 
sir  Charlex  Sedley  j  upon  which  lord  Byron 
ofreffd  a  wager  of  lOOA  thai  he  had  more  |>;^ame 
lo  a  manor  or  manors  of  hi«,  tlian  i>lr.  Cha* 
worth  had  upon  any  that  belonged  lo  him, 
Your  birdshififl  will  find  a  little  difference  in 
tbe  account  {{ivi^n  by  the  witnvMscs,  touching 
the  terms  of  the  wager ;  but  you  will  have 
them  troni  the  wilneaaes  themseltes,  who  are 
•n  trentlemeo  of  character,  ftnil  as  they  have 
inost  of  them  Iteen  already  examined  before  the 
coroner,  anil  again  before  the  grand  jury,  they 
did  not  choiisv  \o  he  examined  by  those  eon* 
cernml  in  the  prosecution  ;  but  said,  when  they 
were  called  and  examined  before  your  lord- 
fthtp!!,  ibey  should  speak  the  truth,  aa  doubt- 
teas  they  will ;  and  I  only  nieniion  this  cir- 
eumstanoe  as  an  excuse  for  my^^tlf,  if  I  t<hoidd 
lint  hnnnpri  to  opcu  the  evidcnce  cxactly  as  il 
lit  from  the  wit neaaes. 
»  Mr.  Chaworth  having  said  ht  was 

iing  to  accept  tht  wagcfi  aaij  it  would  be 


A.D,  1765.  [1180 

|>roper  lo  mnke  a  memorandum  of  it,  ar.dcnlli 
for  pen,  ink,  and  paper  AlWr  that,  it  hap^ 
pened  that  sir  Charles  tSedley's  manors  were 
mentioned  ;  upon  which  the  noble  prisoner  at 
Ihe  bar  said,  with  soroe  degree  ot  heat,  Sir 
Charles  Betlley's  manors!  where  are  his  roa 
nor*?  To  whii'h  Mr.  Chaworth  replied,  VVIr 
Hncknel  oud  Nuttalt:  his  lordship  (heusati 
1  know  no  manors  of  sir  Charl  'n  ;  '• 

which  Mr.  Chaworth  rrphed,  «  -  Sei 

ley  has  a  manor,  the  manor  of  NulUll  ik  hi^ 
ami  one  of  bis  anccstora  bought  it  out  of  m] 
family  ;  and  if  your  lordship  wants  any  <urth< 
injbrmation  about  bis  manors,  sir  CharleK  Sed^l 
ley  lives  in   Dean- street,   and  \our   lordshiW 
knows  where  to  lind  me  in  Berkfey-row. 

My  lords,  whether  this  was  a  real  dispul 
between  lord  Byron  and  Mr.  Chaworth,  abf>i 
air  Charles  8ed ley's  manors*  or  whclhtrr  it  wi 
uscil  only  as  a  means  of  alTrotiting  and  quai 
veiling  with  each  other,  it  ia  impossible  for  m0' 
to  say ;  however,  aller  this  quarrel,  the  parties 
ataycil  in  company  together  for  a  con{<tclcrable 
time,  I  t»elieve  near  an  hour,  during  which 
time,  both  the  noble  prisoner  at  the  bar  and 
Mr.  Chaworth  entered  into  conveisotiou  with 
ili(?  company  that  sat  next  to  them  upon  in- 
different stdijecls,  aF»  :  i!t*rty  lord  DyroQ 
was  observed  lo  l>e  m  .  nour. 

The  company  tlviu;^ia  inert'  was  an  etid  of 
the  quarrel,  au^  Ihnt  no  more  would  be  hennl 
cif  it,  ALkvuI  eiorlii,  im  hour  after  the  first 
qnnirel,  Mr.  Chaworth  went  lir§t  out  of  th« 
room,  and  it  happeued  a  gentleman  went  after 
him  to  the  dour,  and  he  asked  ihe  gentleman^ 
whether  he  had  observed  the  dispute  l»etweea 
him  snd  lord  Ryron  ?  He  said,  he  hud  in  part  ; 
upon  ^%hich  Mr.  Chawortli  asked  him,  tf  he 
tJiou^ht  he  had  gone  far  enouulif  To  wliich^ 
Mr.  l>ot>st(>n  (tor  thut  was  the  (j'entleman's 
name)  said,  be  thouglit  he  had  gone  too  far  ; 
it  \vas  a  silly  buKiness,  and  neither  of  them 
abould  think  of  it  again. 

Mr.  Chaworth  going  down  atalrs,  Mr.  Don- 
ftton  returned  into  tiie  room»  and,  as  lie  opcneil 
the  door,  he  met  lord  Hymn  coming  out.  I 
must  now  stale^lo  your  lordships  the  evidence 
as  It  arose  from  the  declamiions  of  tbe  de* 
ceased,  as  well  as  the  facta,  which  will  ba 
proved  ;  for,  both  being  legal  etidcnce,  th< 
juxt  stand  imder  tbe  same  predicament,  and  tl 
evidence  being  thus  put,  will  come  in  prou 
«rder  in  point  of  time.  The  prisoner  at  the  ii 
ftaw  the  kleceaaed  ufion  the  stairs,  and  said 
him,  Sir,  I  want  to  speak  with  you,  Tb<  ^ 
then  went  down  one  pair  of  stairs,  and  one  or 
iither  of  them  called  out,  W^itsr;  which  of 
them  it  was  1  am  r»oi  iniiiructed  to  say.  Upon 
the  waiter's  coming,  ths  noble  prisoner  at  the 
bar  asked  him,  whether  either  of  theae  two 
rooms  (|iointing  to  them)  were  empty  f  The 
waiter  opc^ned  one  of  the  doors,  anu  wtnt  in, 
with  a  poor  little  tallow  catidle,  which  was  all 
the  light,  except  a  tkill  fire,  tliat  was  in  the 
room  :  the  waiter  set  the  candle  upon  the 
table,  and  lord  Byron  and  Mr,  Chaworth  went 
into  tbe  room.    When  they  were  there^  ib« 

4U 


IIS7]  .5  GEORGE  III. 

prianiuir  ttkeA  Mr.  Chawnrth,  whether  be  wag 
to  have  recAnran  to  sir  Oiartes  Sedley  to  ac- 
cnnnt  for  tb«  himinpM  of  the  ifame,  ar  to  bim  ? 
The  rieceaaeH  Mid,  To  me,  my  Inrii;  and  if 
jon  hate  any  Uimg'  to  say,  it  would  be  beat  tn 
shnt  the  door,  teat  we  ^hou  d  be  overheard. 
Bfr.  Chawonh  wrat  lo  nbnt  the  i!oor,  and  tam- 
imff  from  the  door  he  ^aw  ihe  nohie  priaoner 
jnat  behind  bim,  with  his  sword  haiMrawn,  or 
■i^  drawn,  and  at  that  initfant  lord  Byron 
called  not — Draw!  The  buNineas  wai  aooo 
done.  If  r.  Cbawortb  findin||f  Win  lor^iihip  in 
Meh  a  nituatioD,  hadnotbinsr  left  for  it  hut  to 
draw  aa  r|iiick!y  aa  he  coiiid:  by  bia  own  ae- 
connt  he  haa  lold,  be  f^ve  the  noble  prisoner 
the  fint  tbmac,  and  enungled  bia  aword  in  bia 
waialcoat,  and  tbonq^bt  be  bad  woanded  bim  ; 
after  that,  lord  Byroo  shortened  bia  sword,  and 
ilabbed  Mr,  Cbawortb. 

There  waa  another  eirenmatanee,  the  bell 
ynng;  bat  by  whom  it  was  mn^  I  know  not. 
The  waiter  came  up,  and  seeing  the  sitoatioo 
•if  I  ho  two  gentlemen,  waa  not  a  little  firighte»- 
ed.  He  ran  out  agaia»  and  sent  op  the  master 
of  the  Uvern,  who  will  tell  yonr  lordships  how 
he  fimnd  them.  I  think  they  were  grasped  in 
each  other's  arma,  and  Mr.  Chawoith  had  bin 
aword  in  hia  left-band,  and  the  noble  pnsoncr 
at  the  bar  had  hia  in  hia  right-band.    The  de- 


Trial  9fLord  Bgranf 


[1188 


deliTered  hia  readily,  hot  lord  Bvron 

Jjnitied  his  with  relnctanee.  One  of  them,  I  be- 
leve  lord  BTron,  ordered  him  to  send  for  relief: 
upon  this  Bir.  Hawkins  the  sargeon  was  soon 
lent  for,  and  as  soon  came ;  but  before  this,  ao 
alarm  waa  given  in  the  room  above  stairs.  The 
company  came  down;  tb^y  saw  the  terrible 
aitoation  of  the  nnfortonate  gentleman.  He 
told  them,  and  yonr  lorrhbips  will  liear,  the 
manner  in  which  it  happened,  pretty  nearly  as 
J  have  staled  it,  at  least  I  hope  subnantiaily 
so.  When  Mr.  Hawkins  came,  it  did  not  re- 
on  ire  a  p^^rnon  of  his  skill  and  penetration  to 
nnd  out  that  the.  woiind  was  mortal,  for  the 
aword  had  gone  in  at  one  Aide  and  out  at  the 
oth^T.  Mr.  Hawkins  ord*rred,  no  doubt,  what 
waft  proper,  and  had  hiui  amreyetl  home.  Mr. 
Chnworth  ha<l  sent  metiscncfcrs  for  the  worthy 
gentleman,  who  is  the  prosecutor  upon  this  oc- 
caMiou.  When  be  came,  seeing  so  near  a  friend 
and  relation  in  the  condition  in  which  the  de- 
CfWfi]  tlipn  ajfp'-arpd,  he  immediately  inquired 
Vfhm  h;«il  hrou'^ht  liiiii  into  t|iat  ternlde  situa* 
tion.  II i4  cvi'U'urc  will  lic  material ;  for  Mr.  Cha- 
worth  told  .^Ir.  t,v.\itiy.  the  uh«dt;  transartioji : 
and  \s\wu  the  ileccaifd  rclatrf!  to  liim  the  cir- 
cumstnrifT,  that  lord  iS^ron  had  drauii)  Ornish 
draMii,  \i\%  Nv«oril,  uhm  th^  dfrcascd  u.is 
ahutiirii;  the  door,  Mr.  Lrvinx  nsknl  hirn,  Was 
tlidt  fair.  Itiil)  '.'  Till*  deceased,  wh(»  was  oi:c 
of  the  most  l)i'np%o|ent,  as  well  as  one  of  the 
Lrnvesi  of  in"ii,  gave  no  aiiKwer  to  tiuit  ques- 
tiou.  Mr.  I<e^in/.  followed  him  with  some 
other  (jiieNtionK,  and  the  answer^  (which  he  will 
give  you  iin  anroimt  of)  will  amount  in  suh- 
atauri'  to  tlii«,  That  Mr.  (;ii8\w)rth  did  not 
think,  when  lord  liyron  carrietl  him  into  the 
room,  thai  be  had  any  desigu  of  figbtiog  biai ; 


bnt  afterwarda  be  thought  he  bad  got  bim  to 
an  advantage,  and  that  waa  the  reasaa  of  hia 
fightiiiff  bim. 

My  lorda,  besidea  this,  the  deceaacd  having 
made  bia  will,  the  person  who  atteaded  him 
opon  that  occaaion  thought  it  proper  that  soom 
quesuona  shoolii  be  aafcad  bina,  even  though 
the  deceased  was  then  in  great  agnoiea  (for  be 
died  sooa  afterwarda);  aoid  the  name  pema 
wisbeil,  that  the  anawera  might  be  redacei 
into  writing,  which  waa  accordingly  done ;  aad 
the  paper  will  be  prodoced  ta  yoor  kmiahipa, 
and  will  speak  fiir  iiaelf ;  and  it  will  need  oa 
comment. 

It  statea,  that  Mr.  Chaworth  said,  the  aobla 
priaooer'a  aword  waa  half-drawn  when  bs 
tamed  from  the  door ;  that,  knowing  hia  bmo, 
he  immediately  whipped  oot  hia  own,  and  hsd 
the  first  lonfe  at  hia  lordahip,  when  lord  Byroe 
ahortened  his  sword,  and  run  him  throogh; 
and  then  said,  with  an  oath,  I  have  as  mack 
coorage  as  any  nan  in  England,  Tbia  is  ihs 
aatore  of  the  caae  in  geneni ;  and  I  believe  I 
have  stated  the  evidence  subatantially,  if  ast 
correctly  true. 

I  cannot  sit  down  without  mentioning  aa- 
other  circamsiaiice,  which  further  evincea  hii 
majesty 'a  love  of  justice,  and  his  inflexible  re- 
adntMn  to  do  right,  according  to  law,  withoot 
favoor  or  aflection,  however  hieh  aad  reapccta- 
ble  the  noble  personage  may  be,  who  is  con- 
cerned in  this  important  cause.  Your  ferd- 
shipa  an  remember,  upon  another  very  solena 
and  melancholy  occaaion,  as  the  event  proved, 
the  then  noble  prisoner*  bad  killed  a  person  of 
very  inferior  rank,  who  left  neither  a  fortnoe 
Dor  relations  equal  to  the  expence  of  a  proM- 
cution  of  this  sort.  His  majesty -f-  from  bit 
k>¥e  of  justice,  sustained  the  whole  charge, 
and  committed  the  care  of  that  prosecution  is 
his  own  scTTants.  But  in  the  present  instance, 
the  deceased  having  a  large  fortune,  and  the 
inheritor  of  it  being  both  able  and  willing  to 
carry  on  this {iromcution,  his  majesty,  from  tbf 
same  love  ol  justice,  and  that  there*  might  sol 
be  the  appearance  of  partiality  to  the  noble  pri- 
soner at  the  bar,  has  left  the  prosecution,  and 
the  intire  manay^uient  of  it,  in  the  hands  of 
the  private  prosecutor,  who,,  actuated  by  do 
motive  of  revens^,  only  hopes,  that  there*  i»ill 
be  a  fair,  hut  a  strict  and  full  enquiry  for  the 
hlood  of  his  deceased  relation;  being  tbo- 
rou^hly  satisfied  that  yuiir  lordships  will  bear 
with  paii*fnc«.',  dvliherate  with  camion,  and  de- 
termine with  wisdom,  justice,  and  truth. 

Snlic'Uor  General,  (Willii^  de  Grey,  eiq) 

My  lorils,  we  will  now  proceed  to  call  our  wit- 

iie*isc!i.^('*ill  .l(d>u   Hewett,   csi^iire.     [Who 

I  Ciime  tf)  the  har,  ami  one  uf  the  clerks  held  tbs 

hook  to  him,  upon  which  he  laid  his  hand.] 

*  Karl  Ferrers.  .See  his  Case,  p.  886  «f 
this  volume. 

f  1  »-up|H)se  that  George  the  second  is  tbt 
king  here  intended.  The  trial  of  lord  FcOfff 
took  place  in  the  lai t  year  of  hii  r«igB« 


^3         ^HHV        ^'^  Mttrder* 

'i,  of  the  Cr.  Hcarlien  to  your  oalh,  *  The 

jilerice  that  yoo  ftiftll  give  on  Whnlf  of  our 

rvreign   bra  tli«!  king's  iuiiji:sty,  a^iast 

lord  Byron  I  the  |iriioiK*r  nl  the  bar, 

the  Iriuh,  the  whole  truth,  and  no- 

ut  ibe  truth*     80  help   you  God.' 

I  kisaed  tbe  book*] 

6^it.  My  lordSf  I  would  ask  BIr.  Ilewett 
rir  Le  «ia»  present  ot  the  8t«r  and  Garter  in 
{patl-mall  on  the  96tb  of  Juutiary  last  P— 
I  HetfetL  I  waa:  1  dined  there,  my  lords,  the 
i  of January. 

H,S.    Icntinolati'  ce  hear  one 

I  of  what  isaaid  by  t  >. 

Then  one  of  the  elerki  wa«  netit  down  to  the 
[bmr  til  repeat  the  quettiona  put  to  the  wllnesses, 
I  a&i]  their  aniwert . 

^xjaroJned  by  Mr.  Saliciior  GencraL 

Id^wre  that  Mr,  Hewptt  will  teU  your  lord- 
was  present  at  the  ^}tar  and  Garter 
_^   the  VOth  of  January  last  7 — 1  wag :  I 
»l  ihe  8tar  and  Garter  on  the  S6th  of  Jft< 
nuory  last, 

Waa it  any  ^jiirticiilar  meeting? — It  was :  It 
wai  m  county  club. 

Of  whut  county? — ThegeDtlemeu  of  Not* 
' — ^h»iiii»hjre. 

^ou  will  name  the  gentlemen  then 
»>LDnJ  Byron,  Francta  Moliueux,  esq. 

rutn,    fin      l1ii<    hLnvnnraliU''    '^1  luint^;} 

fh!  m 

.)'.      ■-.''■■      ^      : ,  I  ,■ '  >  . ,      ,^    i_    '^, 'cii 

L  junior,  escj.  sir  Robert  iiardeit,   and 

it  what  time  dtd  th^  r^unpany  di«p?— The 
iutper  wasuiton  the  tabic  [trecisely  at  a  quarter 
^*"  •  four  o'cWk. 

lyoii  recollect  any  conrer Ration  relative  to 

I   do;   11   waa  %onw  time  allcr 

:iny  Rueh  eont  eroatioo  a  row. 

tvM  will  ptcaie  to  recollect  the  time. — At  or 

;  the  time  the  drawer  brought  in  the  firiit 

&lll0{f. 

bout  what  o'clock  mictht  that  be? — ft  was 
,  Of  after  aeven  o'clock.  The  rnl^  of  tho 
was  to  have  the  bill  and  tk  bottle  brougbt 

I  O'ctnclt. 

whether  it  wm  about  iieren, 

o'clock  ?— I  beUev«  it  could 

nii»  r  ill'* en  o'clock. 

'  company  at  that  time  drank  much  ? 

Imk  the  compuny   y^tre  all  very  lobi^r 

we  parted. 

ynn   inf-an  that  all  tJn  -v  wer« 

^aobrr  when  thev  paited  clock  ? 

iidd  reco)l*^ct  the  coil  ^ 

,^,,i  .lUout  tlv  --■-•   -^Hhai 

b|^  to  it  WTi«i,  a  whi^Ai* 

^Wliat  manor,  lii'-:^  v. « .  ;l.e  tnoni 

^  ou  1 1  <  fiTh  ct  by  whom  tb«  eoofefvailmi 
^  onvrnnnion  about  ibe  game 

111  whai  inatiijvr  F-^By  trUtitiig  a  propoiiticm 


A.  D.  1765.  lim 

for  preserTiog  the  game,  besides  the  present 
system  of  the  game  lawa,  which  baa  very 
ouea,  where  1  have  beeti«  prodticed  agreeable 
coovemtioQ. 

Who  were  the  persons  in  particular  who  en- 
tered into  that  convention  ? — 1  believe  all  th« 
company*  more  or  less. 

l>i>  you  recollict  what  Mr>  ChaworiU  iiiJ 
on  that  occasion  ? — I  reooUact  bearing  a  betl 
proposed  of  lOO/. 

Wus  thai  the  first  time  Mr.  Cbaworib  bad 
said  any  thing  upon  the  suhj<.^t? — I  cannot 
lakt.*  ti(»on  me  to  nay  thai:  1  can  describe  the 
order  in  wliirh  we  tat,  and  the  pertions  1  wag 
in  converRatioa  with  at  the  time  the  bet  was  pro- 
posed. Mr:  Montaga  sat  neict  me  on  my  right* 
hand^  1  sat  at  the  head  of  the  table,  Mr.  VViU 
li»u-hby  sat  next  Mr.  MonU^gu,  Mr.  Sbtrwia 
next  bin),  Mr.  Molineux  next  to  blm,  lord 
Byroo  was  ihe  last  person  on  the  same  side  ihe 
table,  «nd  farthest  from  me  on  my  rigbt-handp 
and  on  my  lef^-haiid  Mr.  Cbaworib  sat  next 
nte,  Mr.  Dottston  next,  Mr.  MeLiisb  next,  sir  < 
llobert  Burdett  next  on  that  side. — I  was  e 
gaged  in  some  subject  with  Mr.  Sberwio^  and 
ttie  gentlemen  on  my  right-hand,  at  ibe  limtt 
when  the  conversation  passed  betweeu  lord 
B>ron  and  Mr.  Chaworth.  , 

Lord    Wgh   Steti^ard,      Recollect   yourself] 
ai^ain. — Hewett.    1  was  conversiog  with  Mr. 
Sherwin,  itnd  the  genUensen  on  my  right  hand, 
when    I   heard  ihe  conversation  about  the  bet  , 
between  lord  Byron  and  Mr.  Chaworth. 

SoL  Gen,  Pleftse  to  refieat  exactly  the  con* 
versation  between  brd  Byron  and  Mr.  Ch»* 
worth,  in  the  order  in  which  it  passed.— 
Hejvett,  I  cannot  recollect  any  Uiing  far  titer  of  J 
the  oonveraatioo  tl^au  I  liave  done. 

Be  io  good  as  to  repeat  again  what  that  coo* 
vemttoii  was.-^lt  wai  a  dispute  in  who^te  ma* 
nor  or  manors  there  was  the  niost  game. 

IVho»e  manora  were  und«'r:iio«Nl?— |  heard 
none  meotinned  at  all^    I  imagiucil,  as  kud  ; 
B^ron  and   Mr.  Cbaworib  were  neighbours  m 
the  country',  it  waa  their  manors  they  wer^ 
Bjieaktng  oi'.  < 

Ijottl  ^fun*fici4t.  Mr.  Hewett  won't  speak  asj 
ia  imagination ;  Uiey  can  atily  aak  hioi  as  la  | 
facte. 

Sol,  Orn,  AAer  this  bet  was  proposed,  wbtl 
pa»H#td?— ifcrtcrli.  1  did  not  pen^eive  any  olbee 
conven.i:itioo  biAweeti  Mr.  Chaworth  and  lord 
Bt  roo,  but  what  I  have  mentioned  during  ih« 
wiiole  day. 

At  what  time  did  the  oonv ersalioo  close  npoA 
that  subject? — \ety  sooo,  loy  lords, 

W I lat  con vefvif ion  followed  upon  tlial?— A 
great  variety,  I  think, 

liid  Mr.  Ch» worth  join  ia  that  coovena* 
tioii  ?'^H<*  dirt,  my  bmls. 

»»d  )itf(l    Byron  jotii  m  any    rooier%atioii 

Intm  mr'of  anv  oftiir  ,  I  diit  iiin  hi-Sr 

wiiv  «  >  <  r*..«tiim  ol  hi  :x^:  urds;  but  I  v^* 
V  ttui  ooljvprifeijg  wiili  Mr*  MoJitietiX 

If   '  ■         . 
i>iilyou  obMfvi  wbethtr  lord  B/roa  ttemtd 


1 191]  5  GEORGE  lU. 

to  be  in  or  Mit  of  humour  after  the  eonverm- 
tion  about  the  g^me? — He  seemed  to  be  coo- 
Tcning  wifti  51  r.  Molioeux  iu  i^ood  bumoor. 

How  long  did  this  ooorersatidB  last  before 
Mr,  Chawonh  weut  out  of  the  room? — It 
mu4t  be  after  eight  o'clock  before  Mr.  €ba- 
worlh  went  oat  m  the  room. 

Did  Mr.  Chawor'h,  when  he  left  the  room, 
fake  anyb<iriv  with  him? — >Ir.  Dontton  was 
€Mit  of  the  roocn  at  tlie  aame  t*n:e ;  but  whether 
he  went  with  him,  or  loliOwed  him,  I  do  not 
know. 

How  kmq;  did  Mr.  Donstou  stay  out  of  the 
room? — A  very  abort  time,  1  think. 

Did  kird  Byron  leave  the  room? — Lord 
Byron  left  the  room  at  the  werj  instant  Mr. 
DoDslob  came  in. 

Mr;  Hewett  says,  that  Mr.  Dooslon  sUyed 
out  of  the  room  but  a  very  short  liaM ;  J 
shoiiM  be  glad  to  know  what  he  reckons  a 
abort  time? — I  am  not  aUa  to  jndg«of;tbe 
time,  bat  from  the  hour  of  |»aying  the  reckoo- 
tnf ,  and  the  time  I  went  into  the  room  when 
Mr.  Cha worth  was  wounded. 

What  was  the  first  account  you  had  of 
•ny  ihng  that  paaaed  after  they  miitted  the 
room?— Almott  at  the  instant  of  Mr.  Don- 
alon's  Mttingr  down,  a  drawer  came  into  tlie 
-room,  and  told  ns,  that  lord  Byron  and  Mr. 
Cha«rorth  were  tighting. 

What  was  the  drawer's  name?~I  don't 
know. 

Did  the  company  go  down?— They  went 
down  as  fast  as  they  could. 

Did  yoo  go  into  the  room  where  Air.  Cha- 
worth  and  lord  Byron  were?—!  did. 

Where  was  the  room  ?-— It  was  a  back  room, 
op  one  pair  of  stairs. 

Whnt  did  you -observe  in  that  room?— I  was 
lame  at  that  time;  when  I  got  into  the  room, 
Mr.  Chaworth  was  sitting  in  an  armed  chair, 
^Ith  his  left  leg  on  another  chair,  and  leaning 
his  hrad  against  Mr.  Donston. 

Did  you  observe  the  condition  in  which  Mr, 
Cliai^orth  was? — I  ditl.  He  was  wounded  in 
the  belly,  and  had  bis  hand  upon  it,  and  there 
was  a  good  deal  of  blood  under  the  chair. 

Did  Mr.  Chaworth  say  any  thing  to  you  ? — 
fie  did. 

What  was  that?— He  'said  he  was  a  dying 
man,  and  gave  me  an  acooiuft  of  the  transac- 
tion, and  of  what  had  pasN^d  between  my  lord 
Byron  and  him:  he  said,  lord  Byron  told  him 
he  wanted  to  speak  to  him  ;  npon  which  tliey 
went  into  that  room. together  ;  -that  he  told  lord 
Byron  it  waK  better  to  abut  the  door  that  (hey 
miiiht  not  be  heard  ;  that>widlehe  was  doing 
it,  Um\  Uyron  bid  him  draw  ;,  that  hi*  law  his 
lordship's  sword  halfdrtiwa,  upon  which  he 


Trial  of  Lord  Byrofif 


[1192 


len  yM 
tokr. 


room  when  Mr.  HawkuM  was  tent  for ;  Mr. 
Hawkins  was  m  the  room  when  I  was  thm. 

Was  lord  Byroa  ia  the  room  at  that  tinw! 
—Lord  Byron  came  into  the  room,  aod  went 
up  to  Mr.  Chawortb,  and  aaked  him  how  bt 
was. 

What  answer  was  given  by  Mr.  Chaworthf 
— I  don't  recollect  any.. 

Were  you  afterwards  at  Mr.  Cbawoith^ 
house  that  night? — I  was. 

At  what  time  was  it  yon  weot,  and  whst 

rinsed  there? — I  do  not  rensember  ezaettj. 
was  one  of  the  subscribing  witaeasea  to  mu 
Chaworth's  will.  Ii  mi^ht  be  aboat  or  ate 
three  o'clock  in  the  morning. 

How  was  your  time  employed, 
left  the  Star  and  Garter,  till  you  went 
Chaworth's  houfce? — Mr.  Chawortb  at  diftr- 
ent  times  expressed  himself  as  a  dying  man: 
he  asked  me  twice  after  lord  Byron  aod  kii 
wouimI.  Wlien  I  went  from  the  Star  aai 
Garter,  I  went  with  Mr.  WilkMighhy,  in  ny 
own  coach,  to  fetch  Mr.  Leviaz,  for  wbsse 
coming  Mr,  Chawortb  was  extremely  imps* 
tieot 

What  relation  was  Mr.  Levinz  to  Mr.  Cbs* 
worth  ?— His  oocie. 

Where  did  Mr.  Levinz  live? — At  Kcnsisg- 
tooGore. 

Duke  of  Ncwcattle.  Did  not  Mr.  Chawortb 
tell  yoii  he  had  mortally  wounded  lord  By laa ; 
for  I  think  voo  aaid,  when  you  came  iato  the 
room  Mr.  Chawortb  asked  how  lord  Byron  did, 
for  he  thought  he  was  wounded  about  kii 
breast  ? 

Heicett,  Mr.  Chawortb  asked  me  how  M 
Byron  was,  whether  mortally  wounded  or  DSl, 
for  he  thought  he  was  about  his  breast,  wbca 
lord  Byron  stabbed  him  into  the  belly. 

Earl  of  Morton.  Did  Mr.  Chawortb  meo- 
tioii  that  he  had  given  lord  Byron  a  wound? 
Or  did  you  imagine  it  was  his  own  wound  be 
was  tipeaking  off 

liezcett.  He  enquired  after  a  wound  he  sup* 
posed  he  had  given  lord  Byron. 

Lord  Mansfield,  My  lords,  I  believe  it  would 
be  much  better  if  your  lordships  would  forb«r 
asking  any  questions  of  the  witness  till  tks 
counsel  for  the  crown  shall  have  done  with  the 
witness ;  then  lord  Byron  will  ask  such  ques* 
tions  ati  he  may  ibiok  proper,  and  afterwsrdi 
your  lordships  will  have  an  opportunity  of 
aaking  any  questions  you  please ;  otherwise  I 
am  afraid  it  will  very  much  interrupt  thercga* 
larity  of  your  jiroceedings. 

SoL  Gen,  J  was  endeavouring  to  fix  tbt 
time  when  Mr.  Hewett  came  to  Mr.  Chawortb*! 
bouse,  by  asking  bim.  How  he  was  employed 
after  be  left  the  Star  aod  Garter  ?  Mr.  Ilewftt 

whi)ii)«l  out  his  own  as  quick  qh  fios^ably  he  j  said,  in  seeking  Mr.  Levin^e,  who  lived  at  Kco- 

eould  to  give  him  the  point,  and  he  asked  how  |  siugton  Hox^^ntrHtuett,   1  sent  my  coach  ftr 

loni    Byron  was,  whether  he   was  mortally  '  --     *     * 

woon«|pd,  aa   he  tboiwht  he  was  about   his 

breast ;  when  his  loidsbip  ahortened  his  sword, 

and  stablied  him  in  the  belly. 

*  Were  you  in  Uw  voom  iMitn  Mr.  Hawjcina 

/to  $urg9oa  waa  aaut  for?— I  was  not  in  the 


\ 


Mr.  Levinz  some  time  before,  and  it  i 
witho.it  finding  him ;  upon  that  i  sent  ta  lit 
dnke  of  Leeds's  house,  to  know  if  they  kaar 
any  thing  of  him  there ;  thev  returned  ftri^ 
Bwer,  that  he  dined  there,  and  waa  goat  hoM 
1  would  ask  you,  if  there  was  ao^  oaaf< 


Jbr  Murder. 

Ivrrcn  Mr.  Chaworlh  anil  you  after  tlie 
10^  lib  mil,  in  llie  presence  of  Mr.  Wil- 
I  louifbby  ? — TSiere  was, 

^^>td   Mr.  Cliaworth  enake  any  tlecIaratioDS 
^^fcUal  had  pa^^cd  at  llml  time  P— -Re  dfd. 
^^Vtfre  those  declarations  reduced  into  writ- 
ing ? — They  were* 

Hi>w  loil|r  was  it  after  they  were  made  be- 
fore  Ihey  were  reduced   into  writing  ? — We 
I  down  from   the    bed-chamUer  into  the 
If. 
_ler0  Mr.  Partin^fton  detiTered  the  will  into 
rLevins^'s  hands  ? — No,  1  gave  the  will  iaio 
.  Le^in^^ii  hands  in  thepartour;  then  mi- 
^itutes  were  made,  and  ^o  me  ah  e  rat  ions  made  in 
^  tit)  we  were  all  agreed  it  was  exactly 
Mr.  Chaworth  had  said. 
ere  the  minutes   transcribed  again  afker 
alterationft  were  made  ? — I  beliere  they 

lutd  yon  inow  the  paper  writing  again, 

iMkw  it? — I  should  iiot;  hut  I  remember 

[the  rnntciit^  appeared  to  me  exactly  the 

VI  ir  uint  \  have  given  your  lord- 

t  :       umi««ion   of  the  particular 

I  ImHorih's  whipping  out  hia  owo 

I         id  Byron's  shortening  hid. 

)  wroiy  the  |»a|}er  ?— Mr,  Partington^  an 

|i»ecame  of  it  aAer  it  w»i  written  P— I 
w, 

see  Mr.  Chaworth  after  that  paper 
n  P— I  did  not, 

r   Chawortli  continue  in  his  perfect 

tfutlerAtanding  titl  the  IbM  time  yon  saw  him  ?  ; 

^ — If  e  did.     I  understood  many  of  the  questions  J 

put  lo  him  to  be  with  a  view  of  knowing  that.      | 

'■''•/   Urn    RTv  lords.  1  shall  ask  this  witness  , 


rani    Lord  Byron,  would 
laikk  ttii«  witnesa  any  questioQii  ? 
|^%/'(m.    Might 'not  a  great  dealjKUi  in 
that  you  did    not   hear  f^ — newtU, 
_  J  there  migbw 
fere'iioi  you  toHJit-master  ?— I  wa«, 
'%\\i  not  y  ottr  attention  to  that  ofBce  be  the 
bn  that  you  did  nut  lietir  s«;veral  things  that 
I? — It  might;  but  my  ears  are  not  the 
fat  any  lime. 
Lord  Btfnm,    My  lordi,  I  hare  done  with 

jitid,     I    would  ask    one  flingle 
.   I  Inn  witneitSf  if  he  can  aniwer  it 
riy,     Mr.   Chaworth,  as  I  took  it»  told 
that  lord  Byron  asked  to  ^penk  to  him; 
then  they   went  into  the  room,  Mr  Cha- 
I   fiaid,  they  had  better  »hut   the  door. 
I  would  aflik,   whether  it  fia«(,  8hut  the 
r,  or  Boll  the  door  ? — Hcurtt^  1  helievo  ibe 
^]  wan.  Shut  the  door. 
iri  i>f  Denfnirh.    1  deaire  to  know  whether 
v4fl  •iK'Vf  n  tt>  Mr.  Chaworth 

'     y^rib   was  in  his  bed- 

10  pu per  was  dr»wn  up 

l.ciM«r  ,ii*iri;  Mjtd  1  went  away 

f«owi  after. 


A.D,  1765.  [1194 

Earl  Poukt,  Were  the  alleraliotif  in  tht 
paper  you  mpiitioned  material  ooesj  or  not? 

Httieti,  1  thouLrht  it  my  duty  to  the  public 
to  make  an  exact  minute  of  the  cTrcumst^incep 
of  the  daVf  which  minute  1  have  now  in  mf 
hand,  and  it  correapoods  exactly  with  that 
paper,  except  in  the  circumstance  I  mentioned 
lo  vour  lordabips. 

Earl  of  BuckiTtghajruhirc.  I  desire  Mr. 
Ilewett  may  be  asked,  if  he  expecti'd  Mr, 
Chn  worth  would  have  come  back  3g«in  ? 

Hewett.  I  did  imagine  he  would  have  come 
back. 

Earl  of  Butkinghitmshire.  I  desire  to  know, 
whether,  when  Mr.  Chaworth  went  out  of  the 
room,  betook  his  hat  with  him  or  not  ? 

Hewelt.  I  douH  know  ;  I  did  imagine  ht 
would  come  back  immediately. 

Lord  High  Steward.  }  do  not  remember  any 
precise  an&wer  to  the  question,  who  it  was  thai 
oflered  the  bet  ? 

Hewett,  Lord  Byron  proposed  the  bet. 

L   H.  S.  Are  you  sure  it  was  lord  Byron? 

Hewett,  I  think  I  am  sure  it  was ;  and  Mr, 
Chaworth  took  it  up,  as  1  thought,  in  a  joke^ 
and  called  for  a  pen  and  ink. 

X.  H,  S,  Do  you  recollect  how  the  cnaftr^  ] 
sation  about  the  game  fioished  f 

HcMeeit.  1  caunot. 

By  Ibe  Earl  of  Dartmouth, 

Do  you  remember  the  particular  discounv 
OD  the  game  between  lord  Byron  and  Mr.  Cha- 
worth ?— There  were  various  discourses  upon 
the  subject  by  diflerent  people  in  company  ;  I 
was  talking  about  the  best  method  for  pre* 
serving  ^ame,  and  the  discourse  turned  opoti 
the  proposition,  that  it  might  be  a  aeovible  way 
of  preserving  game  to  make  it  the  properly  of 
ibe  owner  of  the  soil. 

Was  there  any  general  debate  on  the  subject 
of  the  ^aioe? — It  might  be  aa  to  ihe  probable 
waysot  preservinif  fhegnmc. 

I  thit»k  you  sHiff  lord  Byron  lefl  the  roem  at 
the  inntant  Mr.  Duoston  returoeil  ? — I  did, 

I  dei^ire  to  know  whether  lord  Ryron  lat  #<! 
IS  lo  bear  what  passed  between  Mr.  Chawortli 
and  Mr.  Don^ton  on  the  stairs  ? — Jt  woa  % 
miglity  odd -shaped  room  that  we  were  in; 
ihe  door  opened  very  inconveniently;  Mr. 
Donston  wns  scarcely  sat  down,  when  the 
waiter  came  into  the  room  and  told  us  lord 
Byron  and  Mr.  Chaworth  were  Bgbting, 

By  the  Duke  of  Richmond, 

Where  did  Mr,  Chaworth  sit  f— Mr.  Cbt- 
woith  sMt  next  to  me  on  my  lel\-haod. 

Could  any  thing  remarkable  pass  at  ibe  table 
wkhottt  your  hearing  it  F-^My  v%Yn  are  but  in- 
dtflerent  at  l>eflt ;  and  at  thai  instant  of  time  i 
waji  in  Iking  to  a  gentleman  that  sat  on  my 
right' hand* 

When  my  Ir^nl  Byron  aaked  Mr.  Cbawortbg 
Where  is  sir  CharU*^  Medley \  manor  f  did  you 
understand  it  was  in  a  Iriendly  manner,  or 
what  other  kind  of  stile?—!  have  given  tliaC 
part  of  my  evidenct  precisely  in  Mt.  CW> 


1195]  5  GEORGE  IIL 

worth's  wonk,  and  your  lordshiiui  will  inter- 
pret them  as  you  thiuk  proper. 

If  I  understood  you  riy;ht,  when  vou  went 
into  the  roonn,  Mr.  Cliaworth  was  then  with 
one  leg  upon  a  chair,  and  be  enquired  bow  lord 
Byron  did? — He  did,  my  lords,  twice,  and 
once  at  another  time. 

Lord  Le  Dapencer,  1  should  be  glad  to 
know,  whether  there  was  auy  considerable  dis- 
tance of  time  between  lord"  Byron  and  Mr. 
Cha worth's  going  out  of  the  room  ? 

Mr.  Hemett,  I  cannot  resol? e  that  question 
precisely. 

Lord  RaventKorth.  You  said  the  bill  was 
called  for  about  seTcn  o'clock  P 

Hewett,  It  is  the  order  of  the  club  to  the 
master  of  the  house  to  bring  a  bill  at  seven 
o'clock. 

Lord  Raveruworih,  Yon  said  you  had  no 
6xed  (luide  to  judge  as  to  point  of  time,  but  by 
the  hi  11*8  being  l»rougbt  at  seven  o'clock  ;  I  de- 
sire to  Wpow  by  what  circumstances  you  guided 
yourself  as  to  the  time  in  general  ? 

Mr.  Hevelt.  In  things  of  this  kind  one  can- 
not be  precise  in  every  thing  ;  but  1  made  a 
minute,  and  I  will  tell  you  the  time  as  near  as  1 
i»n.  My  watch  was  rather  too  fast.  When  I 
came  into  the  room  to  Mr.  Chaworth,  the  mi- 
nute- hand  of  my  watch  was  between  eight  and 
nine,  and  the  hour-hand  approaching  nine :  this 
was  at  the  first  time  I  saw  Mr.  Chaworth  in  that 
condition  ;  the  time  of  my  being  a  witness  to 
Mr.  Chawortb's  will  was  a  httle  after  three  in 
ifae  morning. 

X.  H  S,  So  you  said  before. 

X.  H.  S.  Whom  do  yon  call  next,  Mr.  Soli- 
citor Geqeral  7 

Sol,  Gen.  We  desire  to  call  Frederick  Mouo- 
tagu,  esquire. 

Frederick  Mountagu^  esq.  sworn. 
Examined  by  Serjeant  Glynn, 

I  desire  to  ask  Mr.  Mouutagu,  if  he  was  not 
present  at  the  Sur  and  Garter  on  the  26tli  of 
January  last  ? — I  was. 

I  desire  to  know  what  com|)any  was  there  ? 
.^-There  were  lurd  Uyrou,  Mr.  Chaworth,  Mr. 
Willuuuhbv,  Mr.  Hewett,  Mr.  Molineux,  Mr. 
Don.stuii,  Mr.  ^herwio,  Mr.  Mellish,  and  sir 
Aobert  Uurdelt. 

Upon  what  occasion  were  they  met? — At  a 
county  club. 

At  \^tiat  time  might  the  company  dine  ? — A 
little  after  four. 

Do  you  remember  any  dispute  in  the  com- 
pany ? — There  an)se  a  dispute  some  time  after 
dinner. 

At  what  hour  ? — As  near  as  I  can  recollect, 
at  seven  u^clock. 

Dii  you  r«roeraber  the  sut^cct  of  the  dis- 
putJ-  ? — The  dispute  was  upon  t^ame. 
'  Who  were  the  persions  that  disputed  ?— -The 
.persons  tiMt  principally  disputed  were  lord  By- 
ron and  Mr.  Chaworih. 

Can  you  ^recollect  the  conversation  upon  that 
AulyBct.?— The4li«piite  w**,  wbf^hv  U  was  bet- 


Trial  of  Lord  Bi/ron, 


[IIM 


ter  for  the  preservation  of  game  to  be  remisi,  or 
to  be  setere. 

Do  yuu  recollect  particularlv  what  Mr. 
Chaworih  and  lord  Byron  said  r — Mr.  Cbt- 
worth  was  of  opinion  that  severity  was  bat, 
and  lord  Byron  that  it  was  better  to  be  i«- 


1  should  be  uflad  if  Mr.  Monntagu  would  i«« 
peat  the  whole  conversation  that  followed  upoi 
t4lis. — The  dispute  was  upon  the  reapcctiTS 
manors  of  lord  Byron  and  Mr.  Chaworth,  isA 
upon  sir  Charles  Sedley's  manor  ;  the  conr«- 
sation  ended  upon  that  point,  with  Mr.  CW 
worth's  saj^ing,  and  to  the  bert  of  my  reooUcc^ 


tion  repeating.  If  yoo  have  anv  thing  more  li 
wy,  you  wilt  find  sir  Charles  Sedley  in  Deu- 
street,  and  me  in  Berkelev-rowr. 

Repeat  what  conversation  passed  before  Mr. 
Chaworth  said  those  words  f — In  genetal,  tW 
conversation  was  upon  game. 

Do  you  recollect  any  particulars  of  theeos- 
versation  ? — No  more  than  what  I  have  ra- 
pes ted. 

Was  this  the  whole  f  ReeoDect.— I  cm, 
upon  my  own  reoollectioni  speak  to  notUsf 
more. 

Mr.  Moantagn  willreooHect,  if  be  can,  whe- 
ther there  was  any  dispute  at  all  aboot  tbc 
ownership  of  any  manor  or  manors  7— HicR 
was  aom^^nention  made  of  a  particular  maatr, 
of  Ilucknell  manor. 

By  whom  ?— Bv  Mr.  Chawortb,  1  think. 

uo  you  remember  what  was  sud  abont  thit 
manor  r^I  think  tord  Byron  mentkmed  Ibit 
manor  being  his. 

Do  ypu  remember  any  answer  Mr.  Chawiitk 
made  to  that  ? — No. 

My  question  to  Mr.  Moantagn  was,  whether 
he  recollects  any  contersatiun  between  M 
B)'ron  and  Mr.  Chaworth  about  manonf— 
Yes,  there  was  a  great  deal  of  conversation  opH 
thatnoint. 

Whether  sir  Charles  Sedley  was  mentiosiJ 
or  not  ? — His  name  was  mentioned. 

How  was  sir  Charles  Sedley's  name  iatif- 
duced  ? — I  forget  how  it  was  first  introduced. 

Ilccollect  what  was  said  about  sir  Cbsriei 
Seilley,  when  his  name  was  mentioned.— h 
was  mentioned  that  he  was  severe  upon  ha 
manors. 

By  whom  was  that  said? — Either  by  M 
Byron  or  Mr.  Chaworth,  I  for^t  which. 

How  long  did  the  conversation  about  gane 
continue? — About  twenty  minutes,  1  £  " 
guess  ;  but  I  canuot  spealc  positively. 

Did  the  company  then  break  up  ? — No. 

How  long  mii;nt  they  continue  afterwndl 
together? — An  liow| 

Were  the  compRy,  alUr  this  convenslioBi 
in  good  humour  or  not  f — ^They  appeared  to  ki 
in  good  humour. 

Did  Mr.  Chaworth  join  in  the  convemtioBf 
—He  did. 

Did  lord  Byron  join  in  conversation  ?— Be 
did,  each  with  those  that  sat  n«ar. 
,    Did  lord  Byron  appear  to  be  in  good  W 
mour  ?~1  saw  nothing  to  the  oonifary 


Jbr  Murder* 

ime  did  Mr.  Chtworth  leave  tbe 
-About  eight. 

be  left  the  oompaDY  alone,  or  did 
go  out  with  himf— I  think  Mr. 
owed  him. 

Oontton  return  to  the  company  or 
id. 

I  after  hit  going  out  with  Mr.  Cha- 
few  minutes ;  I  cannot  speak  ex- 
number. 

Bvron  go  out  of  the  room  at  that 
did  afterwards. 

Byron  go  out  of  the  room  before  or 
nrn  of  Mr.  Donston  ?— About  that 


ime  of  the  night  might  that  be  f — 
i  after  eight. 

company  drank  moderately,  or 
-Moderately. 

1  you  first  hear  of  Mr.  Chaworth 
-1  went  down  stairs  about  that  time 
,  as  I  was  going  out  of  the  door  of 
the  master  of  me  tavern  called  me 
>ld  me  that  mischief  had  happened ; 
r.  Hawkins  was  sent  for ;  1  ran  up 
one  of  the  drawers. 
I  that  drawer?— I  do  not  recollect 
icular;  I  ordered  him  to  fetch  the 
om  above  sUirs,  and  wentfaito  the 
•diately  myself,  where  I  fthind  Mr. 
n  a  chair  bleeding,  and  k>rd  Byron 

him. 

re  any  person  in  the  room  when  you 
It  lord  Byron  and  Mr.  Chaworth  ? 
ink  not ;  the  company  above  stairs 
)n  after. 

account  of  what  passed  between  Mr. 
and  the  coropanv,  when  they  came 
:)haworth  first  told  me  that  he  could 
re  minutes;  that  he  forgave  tord 
I  hoped  the  world  would  forgive  him 
le  had  rather  be  in  his  own  situation 
(yron's;  he  said  the  affair  passed  in 
upon  my  defiring  an  explanation,  he 
a  very  small  tallow  candle,  which 
tbe  table  in  the  room  we  were  then  in. 
orth  told  me,  that  when  lord  Byron 
me  into  the  room  where  they  then 
Byron  asked  Mr.  Chaworth,  if  he 
conversation  upon  game  to  sir  Charles 
to  him  ?  Mr.  Chaworth  said,  If  you 
thing  to  say,  we  had  better  shut  the 
jer  he  had  shut  the  door,  he  turned, 
ird  Byron  drawing  bis  sword.  He 
md  made  the  first  pass,  and  in  his 
ntangled  his  sword  in  tbe  left  side  of 
n's  waistcoat;  i^MU  which  lord  By- 
>ned  his  sword,  anB  run  him  Ihrongb 

is  the  whole  of  what  Mr.  Chaworth 
recollect  nothing  material  besides. 
•.  Chaworth,  from  the  manner  of  re- 
;  affair,  app^r  to  be  sensible  or  not  f 
\y  so. 

S.  Lord  Byran,  would  your  lord- 
Ihii  witness  any  questions  f^Lord 
BWM  aikiog  htm  any  queitioDf  •] 


A.D.  1765.  [1198 

By  the  Lord  High  Steward. 

How  soon  might  yon  leave  the  room  after 
Mr.  Donstun  returned  ?— About  a  minute. 

You  passed  tbe  room  upon  the  first  floor  as 
you  went  down?— I  did,  tnv  lords. 
You  heard  no  fighting?— None  in  the  world. 
When  you  went  down,  did  you  stop?— A 
few  minutes  in  calling  a  chair. 

Were  you  got  into  the  chair  ?— I  was  not 
got  into  the  chair ;  I  was  not  out  of  the  door. 

Lord  BerkeUjf.  Was  any  provocation  giren 
by  lord  Byron,  that  might  induce  Mr.  Cha- 
uorth  to  say  to  my  lord,  If  vou  have  any  thing 
more  to  say  to  me  or  sir  Charles  8edley,  you 
will  find  sir  Charles  Sedley  in  Dean-atreet,  and 
1  live  in  Berkeley  Row  ?— ilioirn.  I  do  not  re- 
collect any  particular  provocation. 

Lord  Berkeley.  Do  you  recollect  any  thin^ 
more  than  tbe  general  account  you  have  given  ? 
^Moun.  Nothing  farther,  my  lords. 

Duke  of  Bichnumd,  Did  you  sit  next  lord 
Byron?— Mbun.  No,  my  lords,  I  did  not  sit 
next  lord  Byron. 

Duke  of  lEiichmond,  From  the  discourse  that 
you  heard,  and  what  passed,  did  you  expect  a 
doel  ?— iHbttn.  No,  my  lords,  I  did  not. 

£arl  Temple.  Did  Mr.  Chaworth  say  any 
thing  expresaing  his  imagination  of  hist  having 
woundM  lord  Byron  about  the  breast? — Moun, 
I  do  not  recollect  any  thing  that  Mr.  Chaworth 
said  as  to  that 

Earl  Ten^le,  From  Mr.  Chaworth's  expres- 
iions,  did  any  thing  induce  you  to  think  he  bad 
wounded  lord  Byron  ? — Moun.  No. 

Earl  Talbot.  After  lord  Byron  and  Mr.  Cha- 
worth went  out  of  the  room,  and  were  in  the 
room  where  they  fought,  Mr.  Chaworth  said» 
lie  saw  lord  Byron's  sword  half-drawn  when 
he  turned  from  fastening  the  door ;  and  the 
{fentleman  who  spoke  before,  said  lord  Byron 
called  to  Mr.  Chaworth,  and  bid  him  draw; 
do  you  recollect  whether  Mr.  Chaworth  said 
lord  Byran  bid  him  draw? — Moun,  In  the 
conversation  that  passed,  I  do  not  recollect 
that  circumstance  of  lord  Byron'a  bidding  him 
draw. 

By  Earl  Poulet. 


Were  yoo  nearer  seated  to  the  door  than  lord 
Byron  was?- No,  1  was  not;  I  was  at  the 
upper  end  of  the  table. 

Was  the  door  at  the  npper  or  lower  end  of 
the  room?— it  was  a  very  odd-shaped  room. 

Did  lord  Byron  sit  near  the  door  ?— No,  he 
did  not.  , ,        ,  ,   ^ 

Do  yoo  think  it  was  possible  to  hear  what 
words  passed  between  Mr.  Donston  and  Mr. 
Chaworth  upon  the  stairs  ?  I  should  think  it 
impossible ;  there  waa  a  great  skreen  befora 

FmI  of  Morton.  Did  not  Mr.  Chaworth  say, 
tbe  best  method  of  preserving  game  was  by 
severity,  and  lord  Byron  by  remissness?— 
Mmm.  Yea,  my  lords,  it  was  so. 

Mr.  Stomt.  My  lords,  I  would  call  Georigt 
DODPtOOi  fiq. 


1199]  5  GEORGE  HI. 

George  Domton^  esq.  sworn. 
Examioed  by  Mr.  Stoae. 

Were  vou,od  the  26tb  of  JaDUtrjr,  tt  dioner 
with  lord  Byron  aod  other  g^Dtlemea  at  the 
Star  and  Garter  ?-^I  was. 

Name  the  gentlemen  thai  composed  the 
company. — Lord  Byron,  Mr.  Hewelt,  Mr. 
Willoughby,  Mr.  Chaworth,  Mr.  Sherwin,  Mr. 
Mountagu,  sir  Robert  Burdett,  Mr.  Charles 
Mellish,  and  myself. 

Was  there  any  discourse  between  lord  Byron 
and  Mr.  Cbaworth  ? — ^There  was. 

What  was  the  subject  of  that  discourse? — 
It  was  about  their  respectite  manors  in  the 
country,  and  the  quantity  of  game  upon  them. 

Do  you  recollect  the  manner  of  the  coover- 
aatiori  that  passed  between  lord  Byron  and  Mr. 
Chaworth  ?— In  general  it  was  upon  the  best 
method  of  preser?iog  game. 

What  did  lord  Bvron  giTe  as  his  opinion 
upon  that  discourse  r— Lord  Byron  thought  it 
was  best  not  to  be  too  strict. 

What  was  Mr.  Chaworth's  opinion?— Mr. 
Chaworth  was  for  being  strict,  and  for  patting 
the  ^ame-laws  in  execution. 

Did  any  thing  pass  relating  to  any  other 
gentlemen,  or  the  estates  of  any  other  gentle- 
men ? — Yes,  sir  Charles  Sedley's  manor  was 
mentioned. 

By  whom  was  it  mentioned  ?— By  Mr.  Cha- 
worth. 

Wiiat  did  Mr.  Chaworth  say  npon  the  men- 
tioning sir  Charles  Sedley's  manor? — He  was 
speaking  of  the  quantity  of  game  upon  sir 
Charles  Sedley's  manor. 

Was  there  any  bet  mentioned  relative  to  this 
discourse  concerning  the  game? — Yes,  there 
was  a  bet  proposed. 

By  whom  proposed  ? — I  am  not  very  sure 
by  whom  it  was  proposed. 

Was  it  proposed  either  by  lord  Byron  or  Mr. 
Chaworth  ? — Yes,  by  one  of  them. 
'  Was  any  bet  made  or  not  ? — ^There  was  no 
bet  made. 

At  what  time  did  this  conversation . pass? — I 
believe  about  seven  o'clock. 

Did  lord  Byron  or  Mr.  Chaworth  continue 
in  that  company  any  time  after  this  discourse 
was  over  ? — Yes,  for  some  time  after. 

Whether  after  the  bet  proposed,  there  was 
any  other  conversation  that  passed  between 
lord  Byron  and  Mr.  Cbaworth? — Yes ;  1  re- 
member, upon  sir  Charles  Sedley's  manor  being 
mentioned,  lord  Byron  asked  which  was  sir 
Charles  8edlev's  manor. 

Of  whom  did  lord  Byron  ask  that?— Of  Mr. 
Chaworth. 

Did  Mr.  Chaworth  make  any  answer  ? — He 
answered,  Nuttall. 

Did  Mr.  Chaworth  mention  any  thing  more 
upon  that  subject  to  lord  Byron  ;  andiWhat  ? — 
He  did,  after  lord  Byron  had  repeated  the  same 
question. 

What  was  farther  mentioned  by  Mr.  Cba- 
worth?—Mr.  Cliaworth  said,  upon  his  lord- 
9hlg!*s  asking  him  over  again  whicfa  waa  air 
X 


Trial  of  Lord  Byron^ 


[1200 


Charles  Sedley's  noanor ;  Surelv,  iny  lord.ysi 
will  allow  Nuttall  to  be  air  CharW  (Mley% 

Was  any  thing  more  aaid  reapeding  m 
Charles  Sedley,  or  bis  manors,  or  wbm  hi 
lived  ?— Yes,  Mr.  Chaworth  went  on  to  srf,  ai 
Charles  Sedley  lives  in  siich  a  plaoe,  and  oi 
best  inform  you  relating  to  bia  manors ;  ysv 
lordship  knows  where  to  find  me  in  Bern} 
Row. 

Did  this  conclude  the  conversation  on  thii 
subject,  or  was  any  thing  more  said  at  tim 
time?— The  conversation  ended  with  the  worii 
1  have  last  said. 

Did  you  »tay  in  the  room  till  the  time  M 
Byron  and  Mr.  Chaworth  went  out  ? — 1  staysl 
tiU  Mr.  Chaworth  went  out. 

What  distance  of  time  might  there  be  frM 
the  end  of  the  conversation  to  Mr.  Chaworth^ 
going  out  of  the  room  ? — 1  think  it  might  k 
about  an  hour. 

Did  lord  Byron  and  Mr.  Chaworth,  doriif 
that  hour,  enter  into  conversation  with  one  apt* 
ther,  or  with  the  rest  of  the  company  f— I  an 
not  sure  whether  they  did  converse  with  csd 
other ;  they  did  with  the  reat  of  the  eis* 
pany. 

.  At  what  distance  from  one  another  did  Ih^ 
sit? — At  a  prettv  considerable  distance. 

Do  you  recollect  any  suboeqoent  coDnm- 
tion  that  lord  Byron  entered  into,  except  wlii 
you  have  mentioned ? — 1  do  not;  I  was  it* 
distance  from  lord  Byron. 

At  what  time  was  it  that  Mr.  Chaworth  vtf 
out  of  the  room? — About  eight  o'clock;  la 
not  quite  sure  as  to  the  time. 

Do  you  know  the  purpose  of  his  gofagstf 
of  the  room  ? — He  waa  going  down  ataki;  1 
believe  into  the  yard. 

Did  he  take  his  hat  with  him  when  be  wctf 
out  of  the  room?— I  think  be  did  not. 

Did  any  body  go  along  with  Mr.  Chaworti, 
or  immediately  follow  him  ? — 1  went  out  silk 
him. 

How  far  did  Mr.  Chaworth  and  you  go?-A 
littl«  way  without  the  room. 

Was  there  any  conversation  between  Mr- 
Chaworth  and  you,  when  you  were  out  of  iW 
room  ? — There  was. 

Was  there  any  other  pereon  besides  Nr* 
Chaworth  and  you? — There  was  none. 

Repeat  what  that  conversation  wu  tkrf 
passed  between  Mr.  Chaworth  and  yon.— Blr> 
Chaworth  asked  me,  if  I  attended  to  the  fr  f 
course  between  him  and  lord  Byron?  Il^ 
him  I  did  in  part ;  he  then  asked  me.  If  ki 
had  been  short  in  what  he  last  said  upea  dsl 
subject?  I  told  him.  No;  1  thought  befli' 
rather  more  than  what  was  necessary  upsa  * 
trifling  an  occasion,  and  that  1  did  not  Mlii* 
that  either  lord  Byron  or  the  rest  of  the  cs^ 
pany  would  think  any  more  about  it 

Was  there  any  other  conversatkm  bctsi^ 
Mr.  Chaworth  and  you  at  that  time?— Y«| 
he  asked  me  how  long  1  stayed  in  town,  v 
hoped  we  should  meet  often. 

Was  there  any  other  eonversatic 
Mr.  Chaworth  and  you  reUtift  lo  tht 


J901] 


J^Y  Murder* 


of  %hm  diflccarsv  that  tiad  po^ed  lietweeu  my 
loffd  Byron  antl  Mr.  Cbftworih  ? — No» 

What  became  of  Mr,  Cliawortb  ntlert  bis  P 
»— Be  Inrnetl  to  go  down  siairS. 

Win  ie  did  you  jfoio? — Into  the  room  a^in. 
>V  in^ii  ^011  went  into  the  roofn«  did  you  sec 
ml   ByrOD,  aud  where? — 1  stood  with   my 
»Ack  to  the  door,  and  upon  turniug  round  to  go 
to  the  room  t  saw  torn  ti>  ron. 
Wbal  was  be  doing  at  that  time? — He  was 
tniDg  out  «H  I  was  fining  in. 
What  length  of  tiine  mi^bfc  h  be  from  your 
out  to  Mr.  Chawoftbt  to  the  lime  of 
comiDg  ill  again  ?— ]  cannot  exactly  tell, 
believe  a  very  *bort  lirae. 
Can  you  form  any  judgment  bow  long  it 
tiMgbl  be?~l  tbiok  it  could  not  be  five  mi - 

When  you  met  lord  Byron  going  out  of  the 

Oft  was  any  thing  said  ?-^No. 

Do   you  remember  any  thing  more   that 

saecl  m  the  bouse  that  guve  you  any  alarm  in 
^ffmtd  to  lord  Byron  and  Mr.  Chaworth  ? — 
jfes^  when  I  was  via  the  room ^  and  !^aw  that 
prd  Byron  was  nnt  there,  I  begau  to  reflect 
hat  they  i>ossibly  might  meet  and  resume  their 
iscdurse ;  by  that  time  the  liell  was  rung  by 
of  the  com|)any,  and  the  waiter  came 
ilo  the  room*  I  met  the  waiter,  and  asked 
_jim  if  he  saw  Mr.  Chawortb  ?  and  be  said  he 
>elicred  be  was  b«low  stairs;  I  desired  be 
irould  go  and  see  for  him  immediately,  and  lelJ 
MID  I  must  s|^ak  to  him.  I  was  ttien  pre- 
Mfiltg  10  go  down  myself,  and  the  waiter  iin- 
medifttely  came  up  with  an  account  of  Mr. 
7h«worlb*is  being  run  through  the  bo<ly. 

What  did  you  and  the  rest  4if  the  com|iiiny 
p4ia  that? — We  uti  hastened  down  to  the 
ooin  where  Mr.  Chawortb  was. 

Dill  you  see  Mr.  Chaworlh  in  the  room,  and 

ho  WM  there*  and  m  what  sittia'ion  ?     De- 

leribtt  the  particuhrs, — I  saw  him  in  a  great 

(hair  in  the  corner  of  the  rwm.     Mr.  Fyn- 

,  the  master  of  the  tavern,  was  in  the 


^^Bvr  did  Mr.  Chawortb  ap]»ear? — lie  tat 
nke  chair,  leaning  bis  head  back.  I  went  to 
itii,  and  askfd  him  how  he  dul  ?  EJe  said  he 
as  run  tbrnu^li  the  liudyt  and  Iciii  not  five 
liotites  to  live.  Upon  my  asking  hnw  it 
ip[icne<l?  he  said,  he  and  bird  Byron  went 
to  the  room  and  fought.  1  then  told  bim, 
hoped  bis  wound  was  ni»i  so  bad  as  be  appre- 
eiided ;  he  said  he  wa^i  sure  he  Has  run 
ifougii  tfie  body,  for  that  my  lord  waa  very 
ksr  bun,  aod  had  sboitened  iiis sword. 
Did  you  entpiire  any  thing  of  Mr.  Cha* 
Ofth^  bow  they  came  lo  gvi  into  that  room  and 
^bc  ? — No,  I  d*d  ii<»t  particular ly. 
Did  Mr.  Cliaworth  relate  any  thing  to  you 
Kiiit  bis  going  into  ihi*  room  ?»!Ie  did;  and 
,H^  when  bo  lurried  round  from  sbuttincr  Ihe 
,  be  HAW  lord  Byron  with  bit  sword  half- 


uji'i'i)  rum  ; 

Mely  tiitfugcd. 
"U  XIX 


"Hv  uie<^v^  uiiiU  luey  iiii- 


A,  D.  1765.  [JSOt 

Who  gftid  so?^Mr.  Qbawortb  liLinself  said 

Was  toy  thing  more  said  by  Mr.  Chawortb 
to  you  at  that  lime  concerning  this  matter  ?-« 
bio  I  1  do  not  recuUect  any  tbtug  else  male* 
rial. 

X.  H.  S^  Recollect  yourself,  whether  any 
thing  tlse  mattrtal  happened;  or  did  Mr. 
Chawortb  say  upon  what  occasion  they  fought  f 
— Dofuton,  No,  be  did  not  to  me  i  b>r  I  then 
got  up,  aod  be  talked  to  other  people  who 
Hacked  about  him. 

Mr.  Stowe.  Did  you  bear  Mr.  Chawortb 
make  any  enquiry  concerning  lord  Byrnn?— 
Domtotu  I  beard  him  say  be  thought  be  bad 
wounded  lord  Byron* 

Did  Mr.  Chawortb  siy  to  yen  any  thing  of 
the  manner  in  w  bicb  be  apprehended  be  hail 
wounded  lord  Byron  ? — No,  he  did  not  to  me. 

At  the  time  you  lel^  the  room  at  the  Star  and  , 
Garter,  w  ere  all  the  company  sober  or  not  i* — 
f  tbink^  perfectly  so. 

Mr.  Stowc,  My  lords,  this  Is  all  t  shall  exa* 
mine  Mr.  Donstun  to. 

L*  tl.  S,  Lord  Byron,  would  your  lordship 
ask  this  witness  any  questions  ? 

Lord  Bi/ron,  What  reasim  had  yoa  lo  ima« 
gine,  that  if  1  and  Mr.  Chawortb  should  meet 
we  should  resume  the  discourse? — Dim»Um, 
It  was  very  likely  that  they  should  come  to- 
gether, as  I  met  my  lord  so  soon  alter  1  had 
parted  with  Mr.  Chawortb » 

l>jrd  Bj/ran,  ^Vas  it  not  on  account  of  tbo 
words  wbii:h  you  beard  repealed  in  the  room, 
and  what  passed  after  Mr.  Chawortb  and  you 
went  out  of  the  nnmi  together  ? — Danston.  H 
was  partly  from  the  words  I  beard  in  the  room, 
and  partly  from  Mr.  Cbawortb's  hating  ques- 
tioned me  about  tbeifk. 

L*jrd  Monffort,  Why  did  yoa  follow  Mr, 
Chawortb  out  of  the  room  ? — Domton,  Mr. 
Chawortb  took  hold  of  my  armj  and  asked  m* 
to  speak  with  him. 

Loid  Mout/urt.  How  came  you  not  fo  fol- 
low lord  Byron  down  stairs  T — Domton.  I  was 
returning  iuto  the  room,  and  was  not  sure  it 
was  lord  Byron  till  t  came  into  the  room  aoil 
saw  that  he  was  not  tbpre. 

l^at  I  of  Btickioghamxhirt*  Do  you  imagine 
lord  Byron  could  met  heur  any  part  of  the  con- 
versation you  bad  with  Mr.  Chawortb  upon  tb« 
stairs  ? — Domton*  I  do  not  imagine  lord  By- 
ron couid  overbear  tl  at  that  distaoc^. 

By  Lord  Berkeley, 

Do  yon  know  of  any  wonls  spoken  hy  ford 
Byron  that  could  induce  Mr.  Chawortb  tosay. 
that  if  be  wanted  any  thing  with  sir  Charlen 
Setlley,  be  lived  iu  such  a  place,  and  that  be, 
Mr.  Chawortb,  lived  iu  Berk  ley- How  ?-.!( 
arose  from  lonl  Byron^s  askuig  the  question  n 
second  lime  about  sir  Charles  Sedley's  manor. 

When  Mr  Chawortb  suiil  to  vou,  Do  yoa 
think  1  bavtf  been    '  •'  hati  said  to  foril 

Byrou?    do  uot\'  Jid,  Ibui  thai  re^ 

firrrcd  to  the  wor(l»  tu  u  m\.  l^hawoftb  bad  i»i4 
in  the  room  ? — '1  bcKcve  it  did, 

4U 


ISOS]  5  GEORGE  III. 

Did  Mr.  Cliawortb  leave  his  sword  in  the 
room  as  well  as  bis  bat  ? — I  do  not  believe  he 
4id ;  ]  think  he  never  took  bis  sword  off. 

Lord  Mansfield.  Whether  lord  Byron  took 
his  bat  with  bira  when  he  wentont  ?— Don^/on. 
1  do  not  know  at  all. 

Earl  Talbot,  When  yon  reproved  Mr.  Cha- 
worth  for  having  gone  too  far  in  what  he  had 
said  to  lord  Byron,  by  saying^,  I  think  he  said 
rather  more  than  was  necessary  on  so  triflinfj^ 
an  occasion,  did  not  yon  think  the  words  be  ha!d 
said  were  of  force  enough  to  a  man  of  strict 
honour,  and  nice  sensibdity,  to  requh^  an  ex- 
planation?— Dontton,  I  did  at  first;  bat  as 
ihey  were  spoke  without  much  heat  or  pas- 
sion, and  no  apparent  notice  taken  either  by 
lord  Byron,  or  the  rest  of  the  company,  I 
thougfht  they  might  admit  of  a  different  con- 
struction. 

Lord  Cat  heart.  Did  any  thing  pass  between 
yon  further  than  what  yon  have  acquainted 
the  lords  with? — Donston,  Nothing  more. 

Lord  Viscount  Wei^mouth.  Did  Mr.  Cha- 
worth  say  any  thing  that  led  you  to  imagine 
that  lord  Byron  would  take  notice  of  it  ? — 
Donston,  Nothing  more  than  his  asking  me 
that  question. 

£arl  Poulet.  Do  you  apprehend  that  at  the 
time  those  words  were  spoke  about  sir  Charles 
Medley's  manors,  they  were  said  in  a  manner 
reffectiog  upon  sir  Charles  Sedley,  or  Mr. 
Chaworth  ? — Donston.  No,  I  do  not :  it  seem- 
ed to  me  to  be  rather  questioning  the  bounds  uf 
Ibeir  manors,  as  1  understood  it. 

Mr.  Cornwall.  My  lords,  we  desire  3Ir.  Mo- 
lyneux  may  be  sworn. 

Francis  Molyneux,  esq.  sworn. 

Mr.  ComvraU.  Mr.  Molyneux  will  inform 
your  lordships  if  be  dined  at  the  Star  and 
Garter  on  the  26th  of  January  last. 

Lord  Mansfield.  I  should  think  it  unneces- 
sary to  ask  tills  question  of  every  witness. 

^  Examined  by  Mr.  Cornuall. 

Were  you  in  company  with  lord  Byron  and 
fir.  Chaworth  on  the  26th  of  January  last? — 
1  was. 

Do  yon  recollect  any  discourse  upon  the 
subject  of  game  ? — I  do. 

Were  lord  Byron  and  Mr.  Chaworth  engaged 
in  that  discourse? — They  were. 

At  what  time  of  the  day  might  that  dis- 
course begin? — About  seven  of  the  clock,  I 
think. 

Was  there  any  difference  of  opinion  between 
lord  Byron  and  Mr.  Chaworth  upon  that  sub- 
ject ? — There  was. 

Please  to  tell  their  lordships  how  that  was 
expressed.— Mf.  Chaworth  said,  he  had  al- 
ways b^en  strict  in  preserving  his  game,  and 
that  that  was  the  best  method  of  preserving 
them  r  loni  Byron  said,  he  had  never  been 
strict,  ami  that  he  had  more  game  about  New- 
stead  than  any  bfidy  else. 

Was  any  l>et  proposed  by  any  of  the 
^oy?— There  was. 


Trial  ofLwd  Byron^ 


[im 


By  whom  ? — ^By  lord  Byroa, 
What  were  the  terms  of  the  betP-— He  4^ 
fered  to  lay  100/.  that  he  had  more  gsme  tlioal 
Newstead  than  sir  Charles  Sedley  or  Mr.  Cha- 
worth. 

Did  Mr.  Chaworth  take  the  bet  P^Mr.  Cha- 
worth said,  if  he  would  call  for  pen,  ioki  aal 
paper,  he  wonid  lay  him  the  wager. 

Was  nothing  more  said  apon  tbstenlMctf 
•—Lord  Byron  said,  he  sboold  be  glad  lo  ntt 
where  sir  Charles  Sedley's  manor  was. 

What  answer  was  made  to  that  qoestioB  ?-« 
Mr.  Chaworth  said,  Nuttall ;  but  if  yoor  isri* 
ship  should  have  any  thinff  to  say  to  sir  Chaiki 
Sedley.  he  lives  at  one  Blr.  Cooper's  io  ]>Mh 
street. 

Was  any  thing  further  said  by  any  posH^ 
or  was  that  the  whole  ?-*Lord  Byron  siM 
again  where  sir  Charles  Sedley's  manor  hid. 

And  what  answer  was  given  to  lord  ByrH? 
—•Mr.  Chaworth'  said,  he  nad  already  infonsd 
lord  Byron  where  sir  Charles  Sedley  fireii 
and  his  lordship  knew  where  helivedi  if  behii 
any  thing  to  say  to  him. 

Was  there  any  more  conversation  P—Ht 
more  upon  that  subject. 

How  long  did  lord  Bj|rron  continue  in  esB* 
pany  after  this  conversatwn  ceased  ? — 1  bcfien 
he  continued  in  company  about  an  hoar. 

Did  he  join  in  any  part  of  that  time  ia  aij 

future  conversation  ?— He  conversed  widmi 

Were  you  near  him  ? — I  sat  next  to  hioi. 

On  wnat  subject  did  lord  Byron 

with  you  ?— About  the  doke  of  York's 

Upon  any  other  subject  F — Upon  no  other. 

Did  he  appear  to  be  In  good  homoorP— f 

thought  he  did  ;  I  did  not  see  any  thing  tsdn 

contrary. 

Do  you  recollect  at  what  time  Mr.  Chawsilh 
quitted  the  room  ? — 1  think  it  was  about  e^ 
of  the  clock. 

Did  cny  body  go  out  with  Mr.  Chawsrtb, 
and  who  r—Mr.  Donston,  I  think,  went  est 
with  him.  I  do  not  know  whether  he  wenteit 
with  him,  or  followed  him. 

Do  you  recollect  lord  Byron's  quitting  thi 
room  ? — I  do. 

At  what  time  ? — Abont  seven  or  eight  mi- 
nutes after  Mr.  Chaworth. 

Where  did  you  next  see  Mr.  Chaworth?-* 
In  a  mom  up  one  pair  of  stairs. 

How  soon  after  lord  Byron  quitted  theroon? 
— I  cannot  justly  say  ;  but  I  think  it  might  bl 
about  live  or  six  minutes. 

In  what  condition  did  you  6nd  Mr.  Chs* 
worth  ? — He  was  sitting  in  a  great  chair,  nl 
lord  Byron  standing  by  him. 

Did  you  hear  Mr.  Chaworth  dedare  asf 
thing,  and  what? — Mr.  Chaworth  said, he  has 
?ery  few  hours  to  live ;  that  lord  Byron  bai 
shortened  his  sword  and  stabbed  him  into  ibl 
belly ;  that  he  should  he  glad  to  say  soas^ 
thing  to  a  particuhir  friend  before  be  died ;  I 
left  the  room  soon  afterwards. 

Did  yon  hear  Mr.  Chaworth  dcdsr* ' 
thing,  and  what,  after  tbatP— 1  War^  ' 
agaipi  that  hs  M  bal  a  febyfM 


n  bear  Mr,  Chaworth  declare  uny 
tt  thttt  time  f— t  did  nivt. 

^mealL  My  lords,  ire  have  done  with 
ti. 

E.    Lord  Ryroii,  will  jout  1ordihi|) 

aeftioDi  of  this  witness? 

}fron,    W^tt  tiot  the  cutiTenalion  be- 

atid  me  very  short  ? — Aloit^neux,  ft 
long  duratioo. 

^roi».  M^  lordt,  I  shall  ask  this  wil- 
9re  questions. 

Morion.  I  understood  tliat  lord 
I,  be  had  more  ^me  upon  \m  manor 
bO(j|v,  tod  tbat  be  would  lay  one 
Dttods  of  that ;  was  that  what  you 
«(yjiMLr,  It  was. 

*fi*   I  understand  Mr.  Hairkitis  aod 

f  the  two  surg^eons  that  arc  utieDflinc 
ttl  '|)r«>hiibility  may  be  wanted,  and 
tf  your  lordsiiips  please,  we  will  call 

I  Yes,  certainly  ihe  sorgfeons  may 

II  tbey  may  be  wanted  elsewhere. 

|Mr  Ham  kins  f  esq,  sworn. 

^B  by  Mr.  Attorney  General 

Rntios,  were  yon  i^ol  for  to  Mr, 
^  cm  the  a6th  oi'  January  last? — I 

A  ^  to  bitD?^[  did  immediately 

Rl  the  mesaaij^e. 
of  the  niijfhimi^bt  that  be  ?— A 
ogUt,  as  near  as  I  can  recidlect. 
t  condition  did  you  find   Mr.  Cha- 
t  found  him  sitting  hy  the  fire-f^ide^ 
k-room,  up  one  fiair  of  atairsi  with 

ru-tof  his  woiKtcoat  o^ien,  bis  bhirl 
bb  band  holdiiij^  hit*  helly. 
Q  any  con veit^a lion  with  him  there, 
mi&forluiie  had  befallen  bim  ? — He 
f,  tliAl  be  believed  be  bad  received  a 
und ;  that  he  felt  within  himself  a 
und  of  faintoesA  and  tiinkin^  ;  and 
Ad  a  sensiition  of  stretchings  and 
f  bis  belly,  that  made  biiii  believe  be 
^aJly, 

aav  any  thins;  more  bow  tbis  unfor- 
ir  happened  ? — After  I  bad  made  my 
|ttihes  and  examination,  he  pressed 
tty  to  tell  him  what  his  real  siiuntion 
ii  be  expressetl  U,  not  lo  flnticr  him^ 
ircD  bim  truly,  if  I  thought  him  in 
sdiate  danfrer,  for  if  be  was,  thai  he 
e  aflioirs  which  be  wished  exirerorly 
I  told  him,  1  was  afraid  his  wound 
ffroiis.  He  thiri  d faired  that  Mr. 
igbt  be  immediately  sent  for  to  bioi, 
tier  penllemcn»  who  were  in 
put  for  a  few  minutev^  he 
Aions  relative  to  hit»  privaii' 
^bedc»*irrd  1  would  menttou  to 
Cflfc  liH  ified  in  ftiie  Mr,  Li'vinse 
||:  (I,     This  coQver«vsitn»n  j 

^te  tbc  otbifr  genii i*iucu  i 


A,  D,  17«* 


r(«Wj 


returned  into  tbe  room,  i  a^ked  him  in  wh« 

pofiiiofi   his  boity  was  when  he  re<'eived  thmi 
wound  f  To  which  qiiestiuUr  ag   I  nprirehendt 
to   make  his  answer  more  explicil^  lie  ^avf^i 
■le    tbe    lollowin^    difLiil :    that   lord    Byioftl 
and  he  cami^  into  that  room  lo^rpther,    lorif 
Flyron    leading    the   way*    nnd    walking*    o||] 
towards   the  further  end    of  llie  room,   sail  I 
something  very   rough  to  htm;  upon  whickl 
he  said*  Then,  my  lord,  it   ts  right  1  shoulil 
fasten  tlie  door   (I   am  not  sure  whether  be] 
said  fasten  the  door,  or  bolt  the  door) ;   that  J 
he  turned  to  the  door,  and  did  fasten  it ;  lliit  t 
as  be  turned  round  again  towards  lord  Byroti^  1 
hesaw  bis  lordship  with  bis  sword  either  draw ii^  J 
or  nearly  drawn,  up^n  which  be  immediatWf  J 
drew  his  own,  and  at  the  ^ante  time  that  ti#j 
presented  the  point  of  his  sword  to  bis  briishi^i^  [ 
that   he    made  a  thrust    at    him,   which   li«  1 
ihonjrht  had  hithim^  and  danf^enjusly  woundeA  1 
or  killed  him  ;  tliat  iuunedtutely  xfTei  wards  bt  I 
perceived  his  li»rdKhip  shorteniuji;   his  arm  ta  [ 
make  a  thrust  at  bim,  which  he  thouj^ht  19 1 
have  parried  with  his  lefthand^  with  which  b#1 
endeavoured  to  catch  the  point  of  tbe  sword  ;  | 
and   he  looked  at  his   band    once*  or  twice,  ] 
tbiokio^  that  he  had  either  scratcbeil  or  wound*  I 
eil  bis  hand  in  tbc  attempt;  thut  be  perceived  [ 
tbe  sword  enter  bis  body,  and  imatfined  it  bad  I 
gone  in  deep,  for  that  he  bad  felt  a  pain  quite  | 
lhrou|fh  to  his  back  ;    that  immediately  after  | 
be  laid  hold  of  the  i^ripe  of  lord  tiyron\  sword^  i 
andfitrug£r|ii,g  wiUi  him  for  it,  and  being  th«'| 
stron|(er  man,  he  disarmed  his  lordship,  saying  | 
to    him,  be   bopt-d  be    wss  noi  datujeiouily  | 
wounded  ;    that    lord    Byron    replied   some<- 
thin^    to  the   sume    purpose  to   him  ;    and,  I 
f   think,  added,  that  lord   By  run  saidt  Thai 
he   hoped  now   he   would  allow  or  acknow- 
ledge (it  w»u  either  allow  or  ackoowleiljfe,  I 
am  not  surt  which   of  the   two   words)  that  | 
he  (his  lordship)  wag  as  brave  a  man   as  anjf 
other    in    tbe    kingdom ;    and   some    conai* 
dertible  lime  passed  afierwards  at  the  tarern, 
before  Mr,  Chawortb  was  carried  to  bis  own 
bouse,  partly  on  account  of  Mr.  Chaworth*s 
l>ein|^  of  opinion,  that  be  still  felt  himself  bleed*- 
ing  inwardly;  and   as  be  wished  estrtmely 
see  Mr*  Levinz,  be  desire*!   tu  avoid  moraig',  i 
for  fear  the  bleeding  *ho(dd  be  increaswt  l>y  it^ 
and  so  accelerate  his  death.     A   part  of  the 
time  was  likewise  taken  up  in  our  endeavour* 
iu^  to  g:et  proper  con  V.  (br  bis  removal,  I 

Ihinuif   this  time  ht  'd  some  othcy  1 

htile  circumstances  ichhh'-  <«»  lii«*  pruste  afi- 
fairs,  on  which  accouut  bo  desirrd  I  he  gentle- 
men, who  were  thro  in  the  rtmm,  lo  nn»r#l 
atpaiu,     When  he  bail  menliooed  what  be  bad] 
to  say  upon  that  subjert,  b«  rep«?atetl  to  m«J 
ajfain  with  ^eai  eurnrHiiifc-^ss,  what  I  had  U«ar4| 
bim  declare  before,  two  or  throe  limt-s  in  diul 
ferenl  I'jtpressmus,  equally  Hirontf,  iliai  painedl 
and  dtMit^i^d  as  he  lh*'n  wuji,  and  in  imtui*rlista] 
dantrer  of  death,  he  bad  milier  hii  m  Uin  pro^l 
sent  *iitoaiioo,ih8n  live  under  the  niifttWtuni|^ 
t»t  hvi villi;  kdled  another  (^rsoo^     This stfon| 
exprtwjou  i>f  buiMaaii^  led  ga*  V*  it>J*.>awak^ 


1207]  5  GEORGE  m. 

there  had  been  any  serious  cause  of  offence  be- 
tween them,  meanini^  hetween  lord  Byron  and 
himself,  that  should  hafe  occasioned  the 
quarrel  ?  He  paused  for  a  moment  or  two,  as 
one  recoUectinii^  himself,  and  then  answered, 
No,  nothings  that  might  not  have  been  ex- 
plained and  made  up ;  I  think  bis  expression 
"was,  easily  made  up.  Aller  a  little  time  more 
he  grew  stronger,  and  he  ^las  removed  to  ftis 
own  house,  withont  any  great  uneasiness  or 
difficulty.  I  had  desired  the  assistance  of  ano- 
ther surgeon  ;  and  then  Mr.  Adair,  and  soon 
after  Dr.  Addington,  his  physician,  met  me. 
We  all  joined  in  our  hcMi  endeavours  to  g^ve 
him  some  relief,  but  without  any  hopes  of 
doing  him  good,  and  the  next  morning  about 
nine  o'clock  he  expired.  On  the  Monday 
evening,  by  the  coroner's  directions,  we  exa- 
mined, the  dead  body :  the  swerd  had  entered 
alH>ut  an  inch  on  the  left  side  of  the  navel,  and 
passing  obliquel;^  upwards,  had  made  its  exit 
about  five  or  six  inches  higher,  on  the  left  side 
of  the  back :  in  its  passage,  the  sword  went 
through  one  of  the  small  intestines,  and  had 
made  a  very  large  opening  at  the  back  part  of 
the  bottom  of  the  stomach  ;  so  that  all  the  con- 
tents of  the  stomach,  a  part  from  the  intestine, 
and  a  quantity  of  blood,  were  mixed  together  in 
the  cavity  of  the  belly.  The  sword  bad  like- 
wise passed  through  the  lower  part  of  the 
diaphragm,  and  there  was  a  small  quantity  of 
blood  in  the  cavity  of  the  left  breast,  l/pon 
the  whole,  there  was  not  the  least  doubt  but 
that  the  wound  we  examined  was  the  imme- 
diate cause  of  Mr.  Chaworth's  death. 

Att.  Gen.  My  lords,  we  have  done  with 
this  witness. 

L.  H.  5.  My  lord  Byron,  would  your  lord- 
ship chuse  to  ask  this  witness  any  questions? 

Lord  Byron,  No,  my  lords. 

Sol.  Gen,  The  next  witness,  if  your  lord- 
ships please,  is  Mr.  Adair,  the  other  surgeon. 

Robert  Adair,  esq.  sworn. 
Examined  by  Mr.  Solicitor  General, 

Do  you  remember  being  sent  for  to  Mr. 
Chaworth  on  the  26th  of  January  last? — 
1  was. 

At  what  time  were  you  sent  for  ? — About 
nine  o'clock. 

In  what  condition  did  you  find  Mr.  €ha- 
\rorth? — I  found  him  with  a  wound  upon  the 
left  side  uf  his  belly,  near  the  navel,  which 
passed  upwards,  and  went  throu&;h  between 
five  and  six  inches  higher  than  at  its  entrance. 

Did  Mr.  Chaworth  sav  any  thing  upon  the 
subject  of  tiie  wound  ? — Nothing  to  me. 

Nor  in  your  hearing? — Nor  in  my  hearing. 

Were  y  uu  present  when  the  body  was  openedf 
— -1  was  present. 

Do  you  think  this  wound  occasioned  his 
death  ?— Most  certainly. 

L.  IL  S.  My  lord  Byron,  does  your  lord- 
ship chuse  to  ask  this  witness  any  questions? 

Lord  Byron.  No,  ray  lords. 

Serjeant  Glynn.  If  your  lordships  please,  we 
miH  now  call  John  Sherwio,  esq. 


Trial  of  Lord  Byrorif 


[ISOB 


John  Sherwinf  esq.  sworn. 


Examined  by  Mr.  Serjeant  Glynn* 

Were  yon  at  the  Star  and  Garter,  at  Ht 
Nottinghamshire  club,  on  the  S6Ui  of  Jsdbht 
Ja»t?--Iwa8. 

Do  you  remember  whether  lord  6jrrDD  Ii4 
Mr.  Chaworth  were  there? — ^Tbey  were. 

Do  you  remember  any  conversatioo  abiil 
game? — ^Tbere  bad  been  some  oonversatioalf 
the  company  in  general  about  game.  * 

Do  you  remember  what  part  lord  Byii^ 
and  what  part  Mr.  Chaworth,  took  io  thateas* 
versation  ? — Lord  Byron  spoke  upon  that  sa^ 
ject. 

What  did  lord  Byron  say  P— He  thowH 
that  being  too  severe  hurt  the  |^me,  and  IM 
they  were  preserved  more  by  the  other  mctbti 

Did  Mr.  Chaworth  express  himself  of  a  dif^ 
ferent  opinion  ? — Mr.  Chaworth  did. 

What  did  Mr.  Chaworth  say  f— He  i 


thing  could  be  so  clear  as  tnat  the  poadMM 
were  idle  fellows,  and  did  a  great  dotlof  ms- 
chief  in  the  country. 

Did  Mr.  Chaworth  say  any  thing:  about  giM 
in  his  own  manors  ? — After  this  coDTerstths, 
lord  Byron  offered  a  bet  of  100/.  that  be  W 
more  game  upon  an  acre  on  his  manor  ihn 
Mr.  Chaworth  had. 

Did  Mr.  Chaworth  accept  the  bet?— Hh 
Chaworth  said  he  would. 

What  did  he  say  u|>on  that? — He  ofleisiii 
take  the  bet,  and  I  believe  desired  thai  po^ 
ink,  and  paper  might  be  sent  fur. 

Was  there  any  bet  laid?— I  said,  it  wall 
bet  that  could  never  be  determined. 

Was  any  thing  said  about  sir  Charles  M 
ley's  manor? — After  this  there  arose  a 
about  their  manors. 

Repeat  what  passed  upon  that 
Nuttall  manor  was  mentiuned,  and  anotberv 
two  tliat  1  do  not  remember. 

By  whom  was  Nuttall  mentioned  ? — I  re- 
member its  being  mentioned  by  Mr.  Chaworth; 
he  said,  your  lordsiiip  has  nothing  to  do  there, 
it  is  »4r  Charles  Sedley's  manor,  it  was  bought 
out  of  my  family. 

Was  there  any  thing  more  said  upoo  tbii 
subject  ?-«There  was  more  conversation,  which 
1  do  not  remember. 

How  long  did  the  conversation  cominue  spoi 
thissubject  ?— it  might  continue  a  quartcrif 
an  hour,  or  twenty  minutes. 

Did  the  company  then  enter  upon  any  oikl 
subject  of  conversation  ? — During  the  disMH 
between  lord  Byron  and  Mr.  Chaworth,  1  re- 
member Mr.  Cbaworth's  saying.  As  to  ■ 
Charles  Sedley,  my  lord,  he  will  give  yooiB 
answer ;  as  to  myself,  your  lordship  ksoei 
where  I  live. 

Did  lord  Byron  take  any  part  in  the  fbtare 
conversation  of  the  company  ? — Not  that  I  re- 
member ;  in  general,  J  believe,  be  talked  vtt 
Mr.  Molyneus:,  who  sat  next  him. 

Did  he  appear  to  be  in  good  himoarsr  Ml? 
— Idid  BOtobsenrethatat  aU^cilbcraMWiJ 


for  Murder* 

*l  there  wan  no  rurtlier  cotirersaitoD 
it  Byron  Btid  Mr.  Cha worth. 
till  ^Ir,  Cliftworlh  leaTc  ihe  room  f — 
l^e  twenty  in'mules  tiUer  BIr.  Chi- 
&aid|  Yoti  know  where  1  Vive^  my 

Chftworth  ga  out  alone,  or  did  aoy 
with  hitn  f— He  aslced  jVlr.  Dons  ton, 
lext  hitn,  to  go  out  with  bnUi  be 
l(>eak  to  him. 

DooatOB  return  a^ain  to  the  corn' 
bow  soon  ? — He  caroc  into  the  rootu 
•ooa,  almo!it  in  two  minutes. 
I  oliserve  when  lord  Byron  left  the 
reEDemtier  bis  glutting  up  out  of  bis 

r  ^Aertbe  returo  of  Mr.  Donstoo  ? — 
wa»  before. 

did  you  see  Mr.  C  ha  worth  n^in  that 
^-8oon  after  Mr.  Donston  came  into 
again t  a  drawer,  or  somebody  came 
lid,  there  bad  been  a  quarrel ;  the 
ibove  stairs  went  down  litairs  Into  that 
e  Mr.  Cbaworlb  was ;  I  went  with 

conditioo  did  you  find  Mr.  Cba* 
He  was  Bitiing  in  u  chairi  holding  bis 
bis  ri^ia  band,  his  waistcoat  was 
his  shirt  bloody. 

u  any  conversation  with  Mr.  Cba- 

do  not  remember  I  tiad, 

hear  any  conversation  between  Mr. 

and  any  other  of  the  comfiaoy  ? — 

aiiked  him  bow  be  did. ^  He  said,  be 

»c  minutes,  or  five  hours,  to  live,  I 

Ml,     Mr.  Hawkins  came  in,  who 

sent  for;  and   in  a  little  time,  the 

bft  Mr.  Hawkins  and  Mr.  Chaworth 

B&d  went  up  stairs,  where  they  bad 

u  hear  any   declarations  from   Mr. 
respecting  the  accident  that  bad 

to  him  f— I  did  not. 

Would  lord  Byron  ask  the  witness 

basF 

fron*  How  was  Mr.  C  ha  worth  em- 
mg  the  twenty  minutes  that  he  was 
1,  alter  the  conversation  tliat  passeil  ? 
,  1  do  not  remember  iu  particular, 
ine  he  was  talking  to  the  gentlemen 
t  hand,  or  on  htsieh. 
not  einploj/ed  lu  settling  the  reckon - 
Jieve  he  was. 

observe  any  thing  particular  in  bis 
the  time  P— I  cannot  say  I  did. 

L  The  witness  may  withdraw. 

If  your   lordNbipa    please,   the 
we    will  call  ia    Thomas    Wil* 

^  Thomas  Wilhughb^  t worn. 

,  EiBiniued  by  Mr*  Stcme. 

nu  at  the  8tar  and  Garter  on  the 
kth  of  January  ladt?— I  was. 
^ou  there  birtwecn  four  oVIock  and 
iXicriiooa  f-^l  dined  there  a  liilte 


A.  D.  1765-  [1210 

after  fonrt  and  was  there  at  seven  in  the  after* 
noon. 

Do  you  remember  any  dispute  between  lord 
Byron  and  Mr.  Cbaworih  concerning  the  pre<- 
servaiiuu  of  game  .''-•They  were  of  different 
opinions  about  their  preserving  of  game. 

What  passed  between  lord  Byron  and  Mr: 
Cbaworlli  upon  thai  subject  ? — Mr.  Chaworth^s 
argument  was,  that  there  was  no  such  ihtn^ac 
having  game,  unless  gentlemen  were  severe 
with  the  poachers. 

Did  lord  Byron  differ  with  Mr.  Chaworth 
upon  that  head  ? — He  did. 

Did  any  words  of  anger  pass  between  tbemf 
— I  did  not  perceive  any. 

Do  you  remember  any  inquiry  made  con* 
cerning  the  manors  of  sir  Charles  Sedley  ? — ^ 
NuttalT,  a  manor  of  sir  Charles  8edley's,  waa 
mentioned. 

By  w  bom  ? — I  do  not  know  whether  it  waa 
mentioue^l  by  lord  Byron  6rst,  or  Mr.  Cha- 
%vortb  ;  but  Mr.  Chaworth  said,  Nuttall  bc« 
longed  to  sir  Charles  Sedley  ;  he  knew  it,  tor  it 
was  bought  of  his  family. 

Did  any  thing  more  pass,  and  what^  about 
that? — No,  not  that  I  recollect. 

Do  yoo  remember  any  bet  on  either  side? — . 
Lord  Byron  offered  to  bet  Mr.  Cba worth  lOOL 
that  lie  had  uiore  gsme  upon  bis  manori  or 
manortt*,  than   Mr,   Chaworth  bad. 

What  followed  upon  thai  offer  ? — Mr.  Slfer<« 
win  said,  il  would  be  very  difficult  to  decide 
that  bet. 

Do  you  know  if  any  bet  waa  made  ? — I  do  not. 

Were  there  any  words  passed  afterwards 
between  lonl  Byron  and  Mr.  Chaworth,  re^ 
spectiog  sir  Charles  SSedley,  his  manor,  or  hia 
estate  f — ^Noi  that  1  heard. 

Do  you  remember  Mr.  Chawortli  allerwarda 
going  out  of  the  room  ? — I  do. 

At  t^liat  distance  of  ume  might  that  be  from 
the  finishing  the  conversation  ? — Perhaps  three 
t|uarters  of  an  hour,  or  thereabouts,!  cannot  saj 
exuctfy. 

Did  lord  Byron,  dunng  that  three  quartera 
of  an  hour,  discoHri'e  with  Mr.  Chaworth,  or 
any  other  gentleman  of  the  company  ?— 1  did 
not  hear  him. 

Do  you  recollect^  when  Mr.  Chaworth  went 
out  of'ihe  room,  if  any  body  went  with  him  or 
followed  him  f — Mr.  Donston  went  out  at  the 
same  time. 

Did  Mr.  Chaworth,  when  he  went  out  of  the 
room,  take  his  hal  wjlli  htm  or  not? — I  ilid  nut 
take  notice  of  ibat. 

How  long  was  Mr.  Chaworth  out  of  the 
room,  and  diil  he  return  again  f-*-He  never  re- 
turned iigiiin. 

Did  Mr.  Donsion  return  again? — He  did. 

In  what  space  of  iJme^— In  a  very  ahorl 
time. 

Can  you  form  any  judgment  nf  the  timef^— 
I  cannot  speak  exactly^  perhaps  five  mitmtea. 

Where  wns  turd  Byron  when  Mr.  Donston 
came  into  the  room  f — He  was  got  up,  and 
gone  towards  the  doofi  or  out  of  the  door,  I  do 
nut  know  which. 


1211] 


5  GEORGE  III. 


Trial  of  Lord  Byron^ 


[Ull 


Did  lord  Byrou  take  his  bat? — 1  do  DOt 
knovr. 

Uow  long:  m\g\ii  lord  Byron  be  gfone  out  of 
the  room  before  you  heara  any  thiug*  more  re- 
lati?e  to  lord  Byron  or  Mr.  CbaworthP— A 
Tery  few  minutes. 

Who  mentioned  any  thing  to  you  concerning 
lord  Byron  and  Mr.  Chaworth  r — ^The  waiter 
came  up  and  told  us  what  had  happened. 

Did  yon  go  to  the  place,  and  see  lord  Byron 
and  Mr.  Chaworth,  or  either  of  them  there  ? — 
Idid. 

Did  you  see  Mr.  Chaworth  ?— 1  did. 

In  what  condition  and  situation  was  Mr. 
Chaworth? — He  was  sitting  in  a  chair,  with 
his  hand  on  his  belly,  and  his  shirt  was  bloody. 

Did  Mr.  Chaworth  say  any  thing  how  he 
came  by  that  woond? — He  did  not;  only  he 
■aid  he  was  a  dying  man,  and  that  lord  Byron 
had  run  him  through. 

Did  he  say  any  thing  more  that  vou  recol- 
lect ? — ^He  raid  several  times  over  that  he  was 
a  dying  man,  and  had  but  a  few  minutes  to 
live. 

Mr.  Stome*  My  lords,  we  have  done  with 
this  witness. 

L.  H.  S.  Lord  Byron,  would  yon  ask  this 
witness  any  questions? 

Lord  Bynm.  Were  not  you  conversing  with 
Mr.  Hewelt,  during  the  latter  part  of  the  con- 
Tersation  between  Mr.  Chaworth  and  me,  so 
as  you  might  not  hear  it  f^Willouf^hby.  The 
last  word  I  heard,  was,  that  Nuttall  lielonged 
to  sir  Charles  Sedley,  that  it  was  bought  of 
his  family,  and  he  knew  it. 

Were  not  you  conversing  with  Mr.  Hewett 
so  as  to  prevent  yon  firom  lieariog  any  more  ? 
—That  was  the  last  I  heard. 

X.  U.  S.  Has  lord  Byron  any  thinnr  more 
to  ask  this  witness  ? — Lord  Byron,  No,  my 
lord. 

X.  U.  S,  The  witness  may  withdraw. 

Mr.  Cornwall,  If  your  lurdsbips  please,  the 
next  witness  we  shall  call  is  John  Edwards. 

John  Edwardi  sworn. 
Examined  by  Mr.  Cornwall. 

Were  not  you  a  waiter  at  the  Star  and  Garter, 
en  the  26th  of  January  last? — 1  was. 

Did  you  attend  the  gentlemen  of  the  Not- 
tinghamsliire  club,  who  met  there  that  day, 
between  eight  and  nine  in  the  evening? — I  did. 

What  was  the  purpose  of  your  attendance 
between  eight  and  nine  ?— To  answer  the  bell, 
and  to  carry  any  thing  into  the  room. 

What  commands  had  the  company  laid 
upon  you  at  that  time  ? — To  bring  up  a  bottle 
of  claret. 

Did  you  go  down  ?— I  did,  to  the  bar,  but 
not  into  the  cellar. 

What  did  you  do  then?— I  called  to  my 
master  to  ffet  some  wine,  who,  when  1  called 
him  first,  I  thought  he  was  in  the  kitchen,  and 
I  called  h'un  twice  or  thrice,  and  then  1  found 
him  in  the  larder.  I  told  him  the  gentlemen 
irauted  a  sinsle  bottle  of  claret  at  the  Notting- 
hamshire ciuD. 


Whilst  you  were  standing  at  the  bar  waiyf 
for  the  bottle  of  daret,  did  you  hear  the  U 
ring  ? — I  did  not 

Did  YOU  hear  any  body^  call?— 1  hori 
somebody  call  Waiter,  up  stairs. 

Did  yon  know  the  voice  ?— I  did  not. 

Did  you  obey  ?— I  did  not  the  firM  tiai,l 
thought  to  have  taken  thh  wine  up  ataiis  ilfc 
me. 

Was  it  repeated  ? — It  was  once  or  twiot. 

Did  you  ffo  up  ?— I  did. 

Whom  did  yon  meet?— When  I  came  bpfti 
first  pair  of  stairs,  1  saw  lord  Byron  and  ^ 
Chaworth  cominff  down,  or  rather  waiif 
upon  the  stairs  for  somebody  to  come  ^ 
Lord  Byron  asked  me,  if  either  of  ihewt  rowf 
were  empty  (there  being  two  rooms  in  hs 
view?)  1  answered  in  the  affinnativi^. ■( 
said.  This;  being  the  door  which  wai oaii 
right' hand. 

What  then  did  vou  do?— I  had  a  caodk  il 
my  right-hand ;  I  opened  a  green  baise  dnq 
with  a  brass  lock,  with  nay  left-hand,  ai 
shewed  lord  Byron  and  Mr.  Chaworth  inlsihi 
room ;  I  set  the  candle  upon  the  table  in  Ai 
room ;  I  quitted  the  room,  and  pulled  ths  isM 
door  afler  me;  the  outer  door  shuts  wiifci 
pully.  1  went  down  stairs  immediitdT  ftr 
the  bottle  of  wine,  which  f  had  desired  ■; 
master  to  get;  I  met  him  by  the  barorda 
cellar  door  (which  are  together)  with  the  ni 
in  his  baud.  I  took  it  from  him,  and  went  ^ 
stairs  to  the  Nottinghamshire  cluk,  up  twovr 
of  stairs.  I  drew  the  cork,  and  heard  ibeM 
ring  into  the  room  into  which  I  had  shtwi 
lord  Byron  and  Mr.  Chaworth,  twice,  wbilrti 
was  decantinff  the  wine.  When  I  bad  duDitf* 
ed  the  wine,  I  came  down  stairs,  and  fbosJ  I 
was  too  late  to  answer  the  bell,  as  is  coausu 
for  a  waiter  that  shews  the  room.  I  kwl 
somebody  had  been  in.    When  1  came  talk 

ground  floor,  the  first  person  1  spoke  to  (istki 
est  of  my  knowledge)  was  my  master.  Hi 
clapped  his  hands  together,  anusaid,  Mr.  Cki* 
worth  is  wounded,  or  lord  B^roo  has  wonsM 
Mr.  Chaworth  ;  the  expression  I  cannot  a- 
actly  tell. 

Did  you  go  into  the  room  ? — Not  till  after  I 
had  been  iu  the  Nottinghamshire  dub-roaii^ 
and  had  informed  the  gentlemen  that  Mfi 
Chaworth  was  wounded. 

Did  you  stay  long  ?— I  did  not  stay  long. 

Did  you  hear  Mr.  Chaworth  say  any  tlun|? 
-~He  seemed  extremely  desirous  of  seeing  !•• 
or  three  friends,  particularly  Mr.  Levinz. 

What  was  the  size  of  the  room  you  sbcvti 
lord  Byron  and  Mr.  Chaworth  into  ? — In  isai 
parts  of  the  room,  I  have  measured  it,  it  isax- 
teen  feet  long  and  sixteen  feet  broad  in  sMi 
parts ;  the  chimney  is  taken  out  of  the  corstf 
of  the  room. 

What  kind  of  a  candle  did  you  leave  in  tki 
room  ?— A  common  tallow  candle,  about  eigM 
in  the  pound. 

Was  there  any  other  candle  in  the  rooMJ 
^There  was  no  other  candle  in  the  xoofl^  m 
no  other  light,  to  my  knowlc4gc^  ,» 


«1S] 


for  Mtirder^ 

Wti  thfre  ft  fire  In  the  room  f— There  i»as  t 

•9  in  the  room,  hot  tt  was  rtlher  rlowrt. 

Mr,  €4imwatL  We  hare  done  with  ihts  wit- 

L,  /I.  5.   I^rd  Byron,  woiild  your  lor*bhip 
tc  thisi  »f  itn<»88  any  questioot  P 
Lnrtl  Byrorir    Was  there  any  Ubie  in  the 
f — J,  Edwardi.     There  waa  a  table  iu 
lie  room* 
nifl  yon  set  the  candle  upon  H  ?— I  did* 
How  larjy^e  a  space  ini^tit  the  chairs  anil  tur- 
kiture  of  the  n»o»i  uke  up  fyom  ibe  leng^th  of 
t?— I  cannot  tell,  indectl. 
In  what  (lari  of  the  room  did  you  tearc  Mr. 
■^orlh   and   me  standing? — Both  walked 
the  tire-  place, 
ird  Mankficld.     I  would  ask  this  witneas, 
:her  he  \i  sure  that  he  shut  the  inner  door, 
Mr.  Chawurlli  And  lord  Byroii'a  g^oioR^  into 
le  rOfirn  ? — J.  Eiinard$,    I  pulled  it  after  me, 
c       n'  t  n  certttiidv  whether  it  shut  or  nut. 
icid.     Was  (here  any  lw)Il  to  the 
uo,*.  ,  —J,  Edwardi.  There  is,  tt  is  a  brass 
ftnd  there  is  a  Irlile  boll  at  the  bottom. 
^1;  Gen*    If  your  lordships  please,  we  w\\\ 
IT  Mr.  Pyomore. 

Mr.  Jamti  Fi/nmore  sworn. 

Ait.  G«7i.  My  lords,  this  is  the  master  of  the 
itmYtm.  Uu  yoti  remend>er  (foin^  op  stairs  on 
Lbe  f  6ili  of  January  last  into  tUe  room  where 
loi^  Bjtttti  and  Mr.  Chavrorlh  were  f—Fyn- 
mort,  I  do. 

What  iniluced  you  to  go  thither? — A  waiter 
and  told  me  that  two  gentlemen  were 
out  of  the  Nottinghamshire  club,  into 
Jie  room  N^  7|  and  desired  lo  speak  to  me. 
Wlkat  is  the  wniter*B name? — John Goihorp. 
Id  what  situation  did  vou  tind  lord   Dyron 
Mr.  Chaworth  ?— I  found  them  standinff 
together;  Mr,  Chaworth   had  hts  sivnrd 
left- hand,  and  lord  Byron  had  his  in  his 
hand.    Mr. Chawortli  said,  Here,  JumcSf 
ftword^  for  I  am  disarmed,  or  I  have 
him,  I  do  not  know  which.    I  turned 
Byron,  and  said.  Pray,  mv  lord,  jfire 
vour  sword  ;  on  wliich  lord  Byron  g^ave 
Lis  fiwofd,  and    I  took  it  and  went  down 
ira  with  it.    As  1  was  goin^  out  of  the  room, 
one  or  both  called  after  me,  and  desired 
to  g«t  help  immediately  ;   I  went  down  the 
rs  uitli  thetwn  <«words,  and  laid  ihem  upon 
\  in  a  room  at  the  bottom  of  the  alftirBi 
n  called  iVlr.  Hawkins. 
Did  you  hear  Mr.  Cli«worthsay  any  thing 
m  ttiiA  accident  had  hcfallen  him  f — No, 
Alt.  Gm.    My  lordj,  we  ba?e  done  with 
wilnrss. 

^  U,  S,    Lord  Byron,  will  you  nk  ihit 
toy  i^ueBtioaa  r 

Esamincd  by  Lord  Byron, 

TOd  not  you  carry  op  the  club  book  into  the 
001  whrrc  we  dined  P — 1   went  up  at  s«ven 
»'c1ock,  ■•  b  the  cuatum,  wUh  iht  book  and  a 


A.  D.  17^5. 


[1SI4 


I>td  you  wail  the  settling'  of  the  bill  ?— f  did. 
Did  not  Mr.  Cba worth  settle  it?— Mr.  Cbji- 
wonh  settled  the  book  that  dny. 

What  time  might  it  takt;  up  in  settling  Hf— * 
It  was  done  in  Bf e  or  six  minutea. 

Did  you  make  any  observation  upon  Mr. 
Chaworth's  manner  of  settling  it,  or  oImktvo 
any  thing  particular? — No,  1  think  not  any 
thing  partteular. 

Did  you  observe  him  to  he  ruffled  or  coti« 
fused?— In  one  particular  only;  the  book  J9 
marked  with  lioea  ruled  in  cheeks,  each  ifen- 
tleman^a  oaitie  ii  upon  a  line,  and  against  each 
name,  if  the  gentleman  be  present,  there  is  m 
0 ;  if  absent  5*,  The  only  remark  I  made  of 
any  flurry  in  Mr.  Chaworth,  was,  he  pot  bu 
against  lord  By ron^s  name  instead  of  aO;  upon 
which  I  said,  Sir,  my  lord  is  present ;  opoii 
which  he  altered  it,  and  made  a  0. 

What  was  the  size  of  the  room  where  we 
were  ? — It  was  sixteen  feet  in  the  clear  botif 
ways,  exce|>t  thai  the  chimney  was  inkeu  out 
of  one  of  the  comers. 

What  space  might  the  chairs  take  up  from 
the  dimensions?— The  chairs  are  pretty  large, 
they  might  take  two  feet  each  chair  mto  tho 
^Tonm. 

Is  there  any  inner  fastening,  and  what,  to 
the  door  ? — The  door  has  a  brass  lock,  and  ther«i 
is  a  little  catch  underneath,  as  there  usually 
are  to  these  doors. 

Is  it  not  a  bolt? — It  is  a  tittle  sliding  bolt. 

When  you  went  into  the  room,  in  what  part 
did  you  find  me  and  Mr.  Chaworth  standing? 
— I  aaw  lord  Byron  and  Mr.  Chaworth  stand* 
ing  shoulder  to  shoulder,  close  by  the  fire. 

A  Lord.  Was  the  door  boiled  when  you  first 
came  to  the  room  ? — F^nmorc.  No,  it  was  not, 

Viscount  Folkstone,  Did  lord  Yiyrnn  deliver 
up  his  sword  readily  ? — Fj/nmore.^  When  Mr, 
Cliaworth  gave  me  his  sword»  1  turned  to  loni 
Byron  for  bi«». 

'Viscount  Folkstone,  Did  he  give  you  hit 
sword  directly  ?— Fynmorp.  1  took  hold  ofit, 
and  his  lordtthip  mad^*  no  oljection. 

Viscount  Folhtone.  The  reaaon  f  mention 
tltis  is,  because  the  counsel,  in  opening,  sald,^ 
that  lord  Byron  delivered  up  his  sword  wltli' 
reluctance.  Was  not  lurd  Byron  at  this  tim« 
employed  in  supporting  Mr.  Chaworth  ?— 
Ft/nmore,  Lord  Byron's  left- hand  was  round 
f\r»  Chaworth,  as  ilr.  Chaworth'a  right-hand 
was  round  lord  Byron's  neck,  and  over  hiti 
shoulder. 

\  iscount  FMstme.    Did  not  lord  Byron  de- 
sire you  to  call  assistance? — Fjfnmorc,    f  had  ' 
the  swords  in  my  hand,  and  my  back  waa  to- 
wards them,  when  one  of  them  said*  (I  do  d< 
know  which)  Get  some  heln  immedialeljr. 

Sol.  Gcti,  If  your  lordships  ^Imm^  #•  wM 
call  Johu  Gothorp,  oooiher  of  llio  vmIhs. 


Jtihn  Gothrp  i 

Eiamined  by  Mr.  SdkUm'  OtmtrmL 

You  are  a  waticril  iJit  9iar  aad  Gmrtec  t-^ 
Yes',  m}  lord*. 


1215]  5  GEORGE  m. 

Were  yoa  on  (be  86lh  of  Janoary  last  F-*-! 
waa. 

Do  yoo  remember  the  bell  riogiog  id  M"  7  P 
—I  do. 

About  what  time  P — Aboat  a  quarter  past 
eitfht. 

Did  yoa  f|fo  up  into  the  room  ?— I  did. 

Was  the  door  fastened  P— It  was  not. 

Where  did  you  see  lord  B^ron  and  Mr. 
Chawortb  P — Standing  with  their  backs  to  the 
fire. 

How  near  the  door  P-~ About  ten  feet,  as 
near  as  1  can  recollect. 

In  what  situation  did  yoo  see  lord  Byron 
and  Mr.  Chaworth  f — They  were  both  stand- 
ing  together ;  lord  Byron  had  his  left-arm  round 
Mr.  Chaworth's  waist,  with  his  sword  in  his 
right-hand,  with  the  point  to  the  ^ound ;  Mr. 
Cnaworth  was  standing,  with  his  right- arm 
testing  upon  lord  Byron's  shoulder,  with  his 
aword  in  his  leA-hand  extended  up. 

Did  thev  say  any  thing  ? — Lord  Byron  bid 
me  take  tnis  sword  (meaning  which  I  cannot 
say),  and  call  up  Fynmore  immediately. 

What  did  you  do  P — I  immediately  left  the 
room,  without  taking  any  sWord,  to  call  my 
master  up. 

L.  H,  S.  Lord  Byron,  will  your  lordship 
ask  this  witness  any  questions  P — Lord  Byron. 
No,  mT  lords. 

Lord  Mansfield,  Was  the  door  open  when 
you  came  to  it,  or  was  it  fastened  with  a  bolt  P 
— Gothorp,  It  was  fastened,  but  not  with  the 
bolt. 

Serj.  Glynn,  If  your  lordships  please,  the 
lext  witness  we  will  call  is  Mr.  Wm.  Man. 

Mr.  William  Man  sworn. 
Examined  by  Mr.  Serj.  Glynn. 

Did  you  attend  Mr.  Chawortb,  as  an  apo- 
thecary, OD  the  26th  of  .January  last? — 1  did. 

Whom  did  vou  find  in  the  room  with  Mr. 
Chawortb  ? — His  servant. 

Was  there  any  other  person  l)esides  his  ser- 
vant P — Not  in  the  room  where  he  was. 

Did  any  other  person  come  in  during  the 
time  you  were  there  P — Mr.  Hawkins  and  Mr. 
X^vinz  did. 

Was  there  any  conTersaiion  between  Mr. 
Chawortb  and  Mr.  Le?inz  concerniog  the  ac- 
cident that  had  happened  ? — There  was. 

Relate  that  conversation. — Mr.  Chawortb 
said  some  few  words  arose  at  dinner  concerning 
who  had  the  roost  game  unon  ttieir  estates : 
about  two  hours  at\er  Mr.  Cnaworth  had  occa- 
sion to  go  down  stairs:  upon  his  returning 
back  he  was  met  by  lord  Byron,  who  said, 
Chawortb,  I  want  to  speak  to  you ;  a  waiter 
passing  by  at  the  same  time,  lord  Byron  said, 
Waiter,  shew  us  a  room.  They  went  into  the 
room,  and  first  Mr.  Chawortb  said,  My  lord, 
we  will  shut  the  door,  or  else  some  person  will 
hear  what  we  say.  Mr.  Chawortb,  when  he 
turned  round  from  shutting  the  door,  saw  loni 
Bvronwith  his  sword  half-drawn,  who  said, 
Chawortb,  draw !  Mr.  Chawortb  drew  imme- 


Triat  of  Lord  ByroHf 

diately,  and  made  the  first  pass,  aad 
his  sword  in  my  lord's  waistooat;  fa 
dearoured  to  disarm  lord  Byroo,  ai 
gave  him  a  push  or  bloWy  and  Um 
through. 

Was  this  the  whole  of  what  Blr. 
declared  at  that  time  ? — No. 

Relate  the  whole.— Mr.  Cba  worth 
he  was  first  desired  to  walk  into  thi 
lord  Byron,  he  did  not  in  the  leai 
that  he  was  going  to  be  offered  a  ehi 

Was  that  the  whole  ?— No. 

Go  on.— Some    time  afler  Mr. 
said.  This  will  not  in  the  leaat  be  t 
Byron's  credit. 

Is  that  the  whole  of  what  was  aai 
my  lords. 

Serj.  Glynn.  My  lords,  we  wiUari 
of  this  witness. 

L.  H,  S,  My  lord  Byron,  would ; 
ship  ask  this  witness  any  questions  ? 

Lord  Byron.  Was  any  body  presc 
Mr.  Levinz  P — Man.  Mr.  Chawortb^ 

Lord  Byron.  What  is  his  name 
Michael  Cullum. 

Lord  Byron.'  At  what  Ume  was  tl 
ration  made  P— Man.  I  cannot  pooiti 
but  I  think  it  was  between  the  hours  e 
four. 

Lord  Byron.  Was  it  before  he  s 
will  P— JIfan.  I  think  it  was,  bat  I  an 
tain. 

Mr.  Cornwall.  If  yonr  lordships  p 
will  call  Michael  Cullum. 

Michael  Cti//f/m  was  called,  but  did  nc 

Att.  Gen.  My  lords,  I  find  that  tfai 
is  not  here.  If  your  lordships  please^ 
call  Mr.  Levinz. 

JL.  H.  S.  How  many  more  witnessc 
intend  to  call  ?-"Alt.  Uen.  We  will  « 
Mr.  Le?inz,  and  one  more. 

Lord  Mansfield,  From  the  openiuj 
prosecutor's  case,  it  seems  to  mc,  they 
near  the  end  of  their  evidence,  and  the 
thing  else  left  but  the  paper  ;  it  is  i 
five  o'clock,  and,  I  should  think,  i 
be  more  for  the  ease  of  the  prisoner  a 
lordships,  to  adjourn  to  the  Chamber 
liament. 

Then  the  Lord  High  Steward  return 
to  the  chair. 

Lord  President  of  the  Council.  My 
move  your  lordships  to  adjourn  to  theC 
of  Parliament.— Lor(/s.  Ay,  ay. 

L  H.  S,  This  House  is  adjonmed 
Chamber  of  Parliament. 

The  Lords  and  others  retame«1  to  tbe 
ber  of  Parliament  in  the  same  order  the 
down,  except  the  Lord  High  Stewari 
walkeil  afler  his  royal  highness  tbe  d 
of  York ;  and,  the  House  l^ingr  tbcrem 
Resolved  to  proceed  farther  ui  the  T 
William  lord  Byron,  in  Westnunslaf^li 
morrow,  at  ten  of  the  deck  in  the  Mi 


1217]  J6t  Murder.  ■ 

,  mid  ordered,  Tliat  the  said  William  lord  Byroo 
should  be  remanded  priiouer  to  bis  majesty's 

\  Tower  of  Londtin,  there  to  be  kept  in  sate 
eulodv ;   and  that  he  be  brought  again  to  the 

I  bar  or  this  House  iu  Westminster- hall,  to- 
niorrow,  at  ten  of  the  clock  in  the  morning. 


A.  D.  1765. 


[ISIS 


/  The  Second  Day. 

^  Wednaday,  April  17,  1765. 

The  Lords  and  others  came  from  the  Cham- 

'"    bcr  of  Parliament  in  the  same  order  as  on 

'^    Toesday  last,  except  the  Liord  High  Steward, 

who  walked  after  his  royal  highness  the  duke 

■  -«f  York ;  and  the  Peers  were  there  seated, 

and  the  Lord  High  Steward  in  his  cliair. 

■  Lord  High  Steward.    My  lords,  the  House 
ii  resumed.     Is  it  your  lordships'  pleasure  that 

*}   tbe  Judges  may  be  co? ered  f—^Lordi,  Ay,  ay. 

^       Then  the  Serjeant  at  Arms  made  proclama- 
^   tioD  for  silence  as  usual ;    and  afterwards  the 
Mlowiog  proclamation. 

Serjeant  at  Arms.  Oyez,  Oyez,  Oyez ! 
I  lieuleoant  of  the  Tower,  bring  forth  your 
s  prisoner,  William  lord  Byron  to  the  bar,  pur- 
4    Boant  to  tbe  order  of  the  House  of  Lords. 

Tbe  deputy  governor  of  the  Tower  brought 
'  the  prisoner  to  the  bar,  in  the  like  form  as  be- 
'     fore ;  and  then  he  kneeled  down. 

g        L.  H.  S.  Your  lordship  may  rise. 

Tbe  Ijonl  High  Steward,  by  leave  of  the 
liOrds,  went  down  to  the  tablf  for  the  conve- 
Aieoce  of  hearing. 

L.  H,  S.  Mr.  Attorney  General,  yon  will 
proceed  in  your  evidence. 

Attorney  General,   My  lords,  the  first  wit- 
\  we  call  is  Mr.  Leviuz. 


William  Jjtcinz^  esq.  sworn. 

Alt,  Gen,   Mr.  Levins  is  uncle  to  the  de- 
ceased Mr.  Chawonh.      Did  you    see  Mr. 
,Cbaworth  on    the  2Gtli    of  January  Ust? — 
.  Levins.     J  did,  about  ten  at  night  or  there- 
.ftbouts. 

Where  did  you  first  see  him  ? — I  first  saw 
bim  at  his  own  house. 

That  was  after  the  miafurtune  ? — It  was  after 
the  misfortune. 

Did  he  give  you  any  account  how  that  mis- 
fortune had  happenefil'-He  did. 

What  was  that  account  P — As  soon  as  I  got 

into  the  house  1  went  into  his  bed-chamber,  he 

.  took  me  by  the  hand,  and  told  me  lord  Byron 

.had  given   him   a  mortal  wound ;    desired  I 

would  send  for  a  lawyer  as  soon  as  possible  to 

■  Make  a  new  will,  saying  he  believed  he  should 

be  dead  before  morning  ;    upon  which  I  came 

oat  into  the  outward  room.    There  were  Mr. 

.Seneant  Hawkins,  Mr.  Adair,  Mr.  Willoughby, 

and  Mr.  Hewett.     1  told  them  that  Mr.  Cha- 

vorth  bad  desired  me  to  send  for  a  lawyer,  but 

I  wassotoUlly  deprived  of  recollection,  I  could 

Bat  remember  where  any  one  lived ;    upon 

VOL.  XIX. 


which  Mr.  Hawkins  told  me,  there  was  one 
Mr.  Partington,  who  lived  in  that  neighbour- 
hood, that  was  a  man  of  character,  and  that, 
if  I  pleased,  be  would  send  for  him.  Mr. 
Partington  came,  1  believe,  in  a  quarter  of  an 
hour.,  As  soon  as  he  came,  I  introduced  him 
to  Mr.  Chaworth,  and  1  left  hiin  in  the  room 
to  take  his  instructions.  When  the  gentlemen 
were  gone  dowu  stairs,  and  Mr.  Partington 
had  begun  making  the  will  in  the  next  room, 
I  went  to  Mr.  Chaworth,  and  asked  him  how 
this  unfortunate  affair  had  happened  ?  He  told 
me,  that  lord  Byron  took  him  into  a  room; 
upon  which  Mr.  Chaworth  said.  If  we  are  to 
talk  I  had  better  shut  the  door,  or  else  they 
may  overhear  what  we  say.  Upon  his  shutting 
the  door,  the  first  thing  be  saw  when  he  turn- 
ed his  head  about,  was  lord  Byron's  sword  half 
drawn ;  upon  which  he  drew  his  as  quick  as 
ffossible,  and  got  the  first  pass  at  him ;  and 
finding  his  sword  engaged  in  something,  he 
thought  it  was  mv  lord's  body,  and  therefore 
wished  to  disarm  him,  and  in  endeavouring  to 
close  in  for  that  purpose,  my  lord  shortened 
his  sword,  or  arm,  1  am  not  positive  which,  and 
gave  him  that  mortal  wound.  From  that  time 
till  the  time  the  will  was  executed,  which  was 
about  three  in  the  morning,  Mr.  Chaworth's 
bead  was  so  full  of  his  private  affairs,  that  I 
cannot  sav  I  heard  him  mention  the  unfor- 
tunate afl^ir,  till  after  the  will  was  executed, 
when  I  asked  him,  Has  this  been  fair  ?  But  ho 
made  no  answer  that  1  could  hear,  but  said  he 
saw  my  lord's  sword  half  out,  and,  knowing 
his  man,  he  drew  his  sword  as  quick  as  be 
could ;  that  he  had  the  first  pass  at  him,  and 
then  my  lord  wounded  him,  and  after  that  ho 
disarmed  his  lordship,  when  my  lord  swore  he 
wiis  as  brave  a  man  as  any  in  England.  He 
said  twice  to  me.  Good  God !  that  1 '  should 
be  such  a  fool  as  to  fi^ht  in  the  dark  ;  for  in- 
deed there  was  very  little  li^ht.  He  said  ho 
did  not  believe  lord  Byron  intended  fighting 
when  they  went  into  the  room  ;  but  seeing  him 
u|)  by  the  door,  he  believed  he  thought  he  had 
him  at  an  advantage ;  and  the  first  thing  he 
saw,  upon  turning  his  head,  was  his  lordship's 
sword  half-drawn.  He  said  he  died  as  a  man  oif 
honour,  but  he  thought  lord  Byron  had  done 
himself  no  good  by  it.  I  asked  him  several 
times  in  the  night,  how  this  aflfair  begun  above 
stairs?  he  always  answered.  It  is  a  long  storjr, 
and  it  is  troublesome  to  me  to  ulk.  They  will 
tell  you ;  Mr.  Donston  will  tell  you.  That  is 
all  I  know  of  this  unfortunate  afiair. 

AU.  Gen.  1  shall  ask  Mr.  Levinz  no  more 
questions. 

L.  II.  S.  Lord  Byron,  will  your  lordship 
ask  this  witness  any  uoestions  ? 

Lord  Byron.  My  lords,  1  shall  ask  no  quet« 
tions  of  this  witness. 

A  Lord.  Did  you  understand  that  Mr.  Cha- 
worth went  to  shut  the  door,  that  they  might 
not  be  overheard,  or  to  bolt  the  door? — Lerim, 
He  expressly  said,  that  he  went  to  shut  the 
door,  that  they  might  not  over-hear  what  they 
said. 

41 


1219J 


5  GEORGE  III. 


Trial  of  Lord  ByroiHf 


[ISO 


A  Lord,  Was  it  before  or  after  the  makiogf 
the  will  that  Mr.  Cha worth  ga?e  that  accoant 
to  you  ?— Levifur.  The  first  account  was  about 
eleven  at  night,  I  believe,  when  the  will  was 
first  be|(un :  the  last  time  be  si>oke  to  me  about 
this  unfortunate  affair  was,  I  believe,  within 
the  hour  after  the  will  was  executed. 

Earl  of  Morton.  Before  the  will  was  made, 
when  he  gave  the  account  to  the  gentlemen  in 
the  room,  did  he  seem  to  have  most  attention 
to  the  making  of  his  will? — Levinz,  To  the 
making  of  the  will ;  he  seemed  to  have  it  pro- 
di^ously  at  heart. 

Earl  of  Morton,  Did  he  seem  to  you  in 
bodily  pain  ? — Levinz.  He  was  more  or  less 
io  the  whole  night;  for  about  an  hour  after 
the  will  was  executed,  he  was  amazingly 
composed ;  about  four  he  fell  into  vast  tor- 
tares.  I  sent  for  Mr.  Adair,  who  came 
to  him,  and  by  applying  warm  fomentations 
telieved  him  very  much  ;  but  ftrom  that  time  I 
cannot  say  he  talked  about  the  unfortunate  af- 
fair ;  he  sent  for  me  up  to  desire  that  some- 
thinfi;  might  be  done  as  soon  as  ever  be  was 
dead. 

Earl  of  Morton.  The  last  time  he  spoke  to 
voQ,  was  be  seemingly  in  pain  ? — Levinz,  My 
lords,  he  never  was  free  from  pain. 

Earl  or  Denbigh.  Did  Mr.  Chaworth  tell  ]^ou 
what  past  upon  the  stairs,  previous  to  his  going 
into  the  room?— X^inz.  He  never  said  any 
thing  to  me  about  what  passed  upon  the  stairs; 
I  wished  to  know  it,  but  never  could  learu  it. 

L.  H.  S.  The  witness  may  withdraw. 

Sol.  Gen,  The  next  witness,  my  lords,  is  Mr. 
Partington. 

Thomas  Walley  Fartin^ton,  esq.  sworn. 
Examined  by  Mr.  Solicitor  General. 

Did  you  attend  Mr.  Chaworth  on  the  26th 
of  January  last?— I  did. 

At  what  time  did  you  attend  him  ? — A  little 
after  ten  o'clock. 

^Vhom  did  you  find  with  IMr.  Chaworth  ? — 
When  I  first  came  into  the  house,  I  ^^as  taken 
into  a  parlour,  where  there  were  Mr.  Levinz, 
BIr.  Hawkins,  Mr.  Adair,  Mr.  Hewctt,and  Mr. 
Willoughliy.  1  stayed  there  a  very  few  mi- 
nutes. 1  first  asked  what  f  was  sent  for  ?  1 
was  told,  to  make  Mr.  Chaworth's  will ;  and 
by  the  conversation  that  passed  between  the 
gentlemen  there,  I  understood  that  lord  Byron 
and  Mr.  Chaworth  had  fought  in  a  room  hy 
themselves,  and,  according  to  an  expression  of 
one  of  the  gentlemen,  by  a  farlhing  caudle. 
After  the  will  was  executed,  Mr.  Chawui-th  be- 
gun to  talk  of  his  situation  as  of  a  dying  man. 
He  expressed  a  satisfaction  that  he  was  in 
that  situation,  rather  than  to  have  lived  and  to 
have  had  the  lite  of  any  man  to  answer  for. 
After  such  conversation,* Mr.  Levinz,  in  Heem- 
ing  great  distress,  said  to  him,  Dear  Billy,  for 
God's  sake,  huw  was  this?  was  it  fair?  Mr. 
Chawortli's  head  was  turned  towards  the  gen- 
tlemen on  his  left  hand,  Mr.  LevinaB  atood  oo 
hi»  right,    Upoo  that  question  beui\{  tAxA^  Im 


turned  his  head  to  Mr.  Levins,  sinkNig  npoi 
the  pillow.  He  said  sometbiogf  which  1  corii 
not  distinguish,  for  I  stood  at  the  bottom  of  Ae 
bed,  and  immediately  went  round  to  where  Mr. 
Levinz  stood,  and  as  I  opened  the  curiaia,  1 
heard  him  say  something  of  lord  Byni^ 
sword  being  drawn ;  upon  which,  and  fm 
what  1  understood  had  passed,  I  was  led  tsak 
him  this  question,  Mr.  Chaworth,  was  ■; 
lord  Byron's  sword  drawn  when  you  cameiM 
the  room  ?  He  then  answered  what  I  aA» 
wards  wrote  down. 

How  soon  after  did  yon  write  it  dowa^ 
Upon  coming  down  into  the  parloor,  aflfr  I 
had  sealed  up  and  delivered  the  will  to  Hr. 
Levinz,  as  1  had  advised  some  qaestion  ni^ 
be  asked  when  the  will  was  executed,  ts  I 
thought  it  prudent,  whilst  we  were  togtete, 
that  we  should  set  down  the  answer  that  Vr. 
Chaworth  gave:  the  gentlemen  asseriled.  I 
took  a  pen  and  ink  and  wrote,  **  When  hi 
came  into  the  room,  Mr.  Chaworth  said,''  wk 
went  on  a  little  further,  when  I  read  wtsll 
'  had  wrote ;  and  I  think  Mr.  Hewtftt  io  portici- 
lar  excepted  to  those  words  "  When  be  cbm 
into  the  room,"  1  tore  the  psfier,  and  ihicv  it 
into  the  fire,  and  wrote  the  words  which  1  m 
have  in  my  hands. 

How  long  after  the  finishini[r  the  will  wm 
the  declarations  contained  in  this  paper  WMk: 
— It  must  be  hut  a  very  few  minutes. 

Sol,  Gen.   We  desire  the  paper  may  be  wi 

The  witness  read  it  as  follows : 

*  Sunday   morning,  the  S7th   of  JaoBV^, 

<  about  three  of  the  clock,  Mr.  Cbawurth  sni. 
'  that  my  lord's  sword  was  half-drawn,  wi 

<  that  he,  knowing  the    raan,   immediatdj, 

*  or  as  quick  as  he  could,  whipt  out  his  s»«tL 

*  and  had  the  first  thrust ;  that  then  m}  Va 

*  wounded  him,  and  he  disarmed  my  }oni,wb^ 
*■  then  said.  By  God,  I  have  as  much  tourer 

<  as  any  man  m  England.'* 

X.  H.  S.  Lord  Byron,  will  your  Iord»liip 
ask  this  witness  any  questions  f 

Lord  Bi/ron.  Did  not  you  understand  tbii 
declaration  of  the  facts  to  be  an  ans««  er  to  ik 
question  whether  it  was  fair  c»r  not? — Firt* 
ingion.  V  understood  the  declaration  to  be  M 
answer  to  Mr.  Levinz  and  myself,  and  to  tb< 
inquiry  in  general,  which  was  making  by  ibi 
gt^ntlemen. 

Lord  Byron.  Did  not  you  understand  froa 
those  declarations  that  what  had  pa&sed  vtf 
fair  ? 

Lord  Mansfield.  They  will  not  ask  the.  wit- 
nens  as  to  his  understanding,  but  to  tlie  fiO 
only.  Your  lordships  will  draw  the  c 
elusion. 

L.  H.  S.  You  had  this  pa|>er  to  refresh  tW 
own  memory  ? — Partington.  I  had,  my  Icw^fc 

Lord  RavenszL'orth.  1  desire  to  know  «k^ 
ther  this  paper  in  Mr.  Partington's  band  Ml 
not  read,  and  alk>wed  to  be  what  Mr.  Cba««A 

*  As  to  dying  Declarations,  see  ibtOMitf 
and  Tkuter,  ? ol.  16,  p^  1. 


Jqt  Murder* 

\  every  otie  in*  the  roftrn.  I  do  not 
it  M  u  naprr  to  refrebli  lits  memory, 
liper  tftMrn  fnini  Uie  mouth  of  Mr. 
at  a  declaration  iVotn  linn  ;  itrid 
irfiine  (u  know,  if  it  wm  r^ad  to  the 
in  lUe  room,  und  wbo  tboM  getiil«- 

r   Your  lordships  will  obfterve,  that 

I  hiu8  been  examined  npoo  OAth  witli 

IT  the  liecliration  be  bfts  in  his  band, 

ki  reduced  into   writing ;    you  mav 

tonk   Ibis  witnesiy  vrbeiber  be   look 

I  in  order  to  relresh  bis  momnry,  or 

Ither  purpow? — Partington.  1  took 

[eoeral  rt*coUeclion  of  the  words  ibat 

Drib  ft»id* 

,  Were  tbo*e  declarations  made  to 
fr  ting  ton.  To  aJl  of  us,  Tbey  are 
rordfl  I  heard. 

L  Then  you  may  refresh  your  me- 
I  the  pap«fr. 

Mt^ennworth.  Was  this  paper  read  to 
em  en  who  were  below  stAirs ;  and 
I  ill  lire  room  when  Mr.  Cba worth 
def^Urntion  ? — Partington*  Mr*  Le- 
',  Hewett,  Mr,  Hawkmi,  Mr.  Wil- 
lod  Mr,  Adair^  I  think  no  other  geo* 
MS  preieut,  except  mya«'lf|  in  the 
$r  i  bad  wrote  tbts,  I  read  it  over, 
igreed  it  was  ibe  substance  of  what 
fiirtb  iuid. 

fi^ntworth.  Were  they  the  peraotis 
the  bed-chamber  when  the  decUra- 
^inade  ?-"Pcrtitt^tott.  Tliey  were  the 
jresent  in  Ibe  bed  •chamber  when  ibe 
pe  iipoke  ;  they  were  the  pcrstnis  pre- 
^  parlour  when  I  read  it  over  ;  and  it 
fid  by  a))»  thai  tbey  were  the  words 
^nrlb  said. 

Jlead  the  piper  orer  agaio,  (Wbicb 
by  the  witness.^ 

'  Dcnbifih.  Did  you  efer  bear  Mr. 
r  aay  aiiy  thio||;  of  any  cooTertation 
piMd  previous  to  lord  UyronN  draw- 
(Iford  in  the  room  I' — Partington,  I 
^  Mr.  C  ha  worth,  backwards  and  far- 
ftm  bntr  an  hour  past  ten  till  three, 
lid  tkothin^  inorc  to  me  than  what  I 
fated  to  your  hirdships,  concerning 
Ikftaaetl  beiwf^en  him  and  lord  Byron. 
Df  Manchtittr.  Did  you  e?er  shew 
r,  of  wblcb  you  now  speak,  to  Mr. 
\  bf».fore  his  death  ? — Partington*  No, 
I  1  oevrr  ^w  Mr.  C-hav^orlli  attei  I 
pu  from  bim,  aiWr  bo  lud  executed  bii 

beount  Towmhind.  Was  it  efer  read 
*  the  f^eoUemen  to  Mr.  Chaworih  ?— 
m*  Not  lo  mv  knowkdge;  it  bas 
n  in  my  costiwly  since. 
Wouut  ToKnthenii.  Where  was  it? 
gton.  1  deliferfd  it  to  Mr,  Leftnx 
and  I  oevtTMiW  it  since,  but  once 
'"•-^'^    ^r.  Levins  bolicitur's  bandv. 

rtter.    The  paper  that  yon 
tj     -jjie,  1   think  >ou  aaid  was 


A,D.  1765. 


[1229 


I 


Duke  of  Manchcslff.  Waf  it  not  eompleteil 
when  thrown  into  the  fire? — Parttngton*  ] 
h»d  wrote  as  far  of  the  paper  as  where  the  ex* 
precision  half  drawn  in  mentioned. 

Lord  Cathcttrt.  Dtd  the  paper  you  burtit, 
and  (he  other  paper  you  now  bav e»  diflVr  ?— 
Partington    No, 

Earl  Gosrr.  I  desire  to  know  whether  you 
thrf'W  the  paper  into  the  6re,  because  it  dtffereU 
from  the  account  Mr,  Chn worth  nave,  or  be- 
cause it  differed  from  your  own  account  ?— 
Partington,  The  reason  it  wis  tbro%vn  into  the 
fire  wai5,  I  thought  it  vvaK  better  lo  write  it  over 
attain,  than  to  have  it  appear  with  an  alteration 
in  it.  1  had  Btruck  out  some  wortls  Mr* 
Hewett  objected  to^  aud  for  that  reason  I  wrote 
It  orer  n^atn  fair. 

L.  H.  Si  The  witness  may  withdraw. 

Earl  of  Denbigh,  I  desire  Mr,  Levinz  may 
be  called  in  ag^aia. 

Att,  Gen.  I  think  it  my  duty  to  inform  your 
lordships,  that  from  a  misappreheiifiion  oo  our 
part,  that  the  witnesses  might  differ  in  some 
iiltle  matters,  we  were  extremely  tender  of  exa* 
mining  any  of  them  to  what  was  contained  id 
the  writing,  conceiving  the  leiral  evidence  to  be 
llie  paper* writings  itself;  and  if  your  lordships 
tbink  that  the  paper  cannot  be  admilteilf  I  am 
in  your  lordships'  breasts,  if  it  is  tint  proper  for 
us  to  call  the  witnesses  to  speak  to  these  de- 
clarations. We  were  extremely  tender  in  exa- 
mining^ to  any  thing  thai  should  lead  to  tht 
conversation  contained  in  this  paper. 

Lord  Mansfield,  By  my  notes  it  appears, 
that  Mr.  Hewett  spoke  precisely  to  the  decla- 
rations of  Mr,  Cha worth  ;  for  after  he  bad  btjeti 
examined  to  the  writing,  he  said,  there  was  an 
exception  taken  to  some  words  in  it,  and  it  was 
destrovecl,  and  a  new  one  was  wrote. 

Duke  of  Richmtmd,  My  lords,  a  question 
was  some  time  since  asked  by  the  prisoner  of 
Mr.  Partrnffton,  the  answer  t4>  which  1  did  not 
at  this  distance  bear. 

L.  H,  S,  That  question  was  objected  to  by  m 
noble  lord  as  improper,  aod  therefore  it  fra«  oot 
answered. 

Ear!  of  Denbigh,  1  desire  that  Mr.  Lef  rnz 
may  be  called  to  the  bar  again,  to  be  further 
examined. 

Lord  Harwich.  Your  lordships  cannot  enter 
into  any  debate  jiere  :  if  there  be  any  drfler- 
ence  ot  opinion,  it  will  be  necessary  to  go  back 
to  the  Cbnmber  of  Parliament. 

The  Lords  were  then  moved  to  adjouro  to 
the  Cbamber  of  Parliament.— lord*.  Ay,  ly. 

Z.  U.  S.  This  ilousi!  is  adjourned  lo  the 
Chamber  of  Parliament. 

The  I^jrils  and  others  returned  to  the  Cbam* 
her  ot  Parliament  in  the  same  ordrr  a^  tbey 
went  Irora  thi^nce  tbii  luornini?,  sod  the  House 
was  there  re»»ufnfd  ;  awK  »*^**  »**"»«  *^™^t 
otrnin  adjourn«'d  to  Wr»iniin»ter-ball;  and  ibe 
Peer*  and  oiber»  wenf  down  in  the  same  order  ' 
as  »M.fore ;  and  the  Peers  bring  there  se  ' 
tnd  lb«  Lofd  Uigb  l^lew&rd  iu  fm  c\m$v 


1223]  5  GEORGE  III. 

L.  H,  S.  My  lorils,  tlie  House  is  resooied  t 
Is  rt  }^our  lorilsliipii^  pipasure  that  Ibe  Judge!i 
may  ue  cof ered  ? — Lords.  Ay,  ay. 

Thea  lUe  8i  I'j^ant  at  Arms  made  proclama^ 
lion  fur  itileuee  us  U!iuaj»  anil  utter  wards  ibe 
foUuwiij^  prudatiialioD. 

Stij,  at  Armt,   Oyex  *  Oyez?  Oyez  !  Lieu- 

tPQsiiit  of  lilt"  Tuwer,  brio^-  *oriti  yuur  prmuKer, 
Witliuru  turd  Hyiun,  ii»  ilte  bur,  pui^uaui  to 
the  order  of  the  House  of  Lords. 

The  deputy  governor  of  the  Tower  broii^lil 
the  jivi&ouer  to  the  tiHi  in  Ihe  hke  foroi  Wi  be- 
foi'tf,  and  then  he  kueeleil  dov^n. 

L,  H,  S.  Your  lordship  aiay  rise. 

Then  lhi»  Lord  Bigli  ^Jie^vard,  hy  leave  of 
the  Lord^,  went  dowu  to  the  table. 

L.  H  S.  Mr.  Allorney  General,  yott  will 
prcJL'eed  in  yuur  et idenfe. 

Ait^  Gen,  My  lord«,  if  I  could  have  con- 
ceived that  tbert;  remained  a  doubt  tn  the  miivds 
of  any  one  of  yuur  lordj^hips,  that  the  contetils 
of  OuB  paper  uere  not  Irtiei  I  should  hafe 
thought  il  my  duty  to  have  called  all  the  ivit- 
nesaes  to  have  isuhaiantiatcd  the  contents  ;  but 
as  1  euuDOtQow  trespass  upon  yonr  lordships^ 
paiience,  the  evjdeui:u  on  behulf  uf  llie  crown 
is  i^losed  ;  and  we  leave  it  bfie. 

Earl  of  Denbitih.  I  desire  that  Mr*  Levinz 
may  h^  called  to  ihe  bar. 

Mr.  Levins  vraa  called  again. 

Earl  of  Denld^L  There  ivas  a  conversation 
passed  bet^veeu  Mr.  Chaworth  and  the  noble 
prisoner  at  the  bur,  previous  to  Mr.  Chaworlh^s 
shutting  the  door ;  now  I  shout  it  be  gbd  to 
know  whether  Mr.  Chaworth  &aid  iiny  thing 
to  yoii,  relitiive  to  Ibe  cctnveisation  which  pass- 
ed beiweeu  liim  and  lord  Byroo  upon  the  stairs, 
prevtoua  to  their  goings  ioto  the  room  nhere 
they  fiiuyht  ? 

LevuiX.  No,  my  lords  ;  what  he  (iihl  | 
me  was,  that  lord  Byron  asked  him  into  the 
room  ;  that  when  he  came  iuto  the  ronm,  he  | 
said,  My  lord^  if  we  are  10  talk  we  had  lieiter 
shut  the  door,  or  else  they  umy  overbear  what 
we  say  :  and  I  never  beard  Mr.  L'buworlh  say 
aoy  tbjiig  else  about  it. 

Duke  of  Ntwcaiik.  When  you  asked  Mr. 
Chaworth  whether  it  was  tair,  you  wore  on  one 
side  of  ibe  bed,  and  Mr.  Chaworth  turned  his 
head,  and  »aid  somfthinij  which  Mr.  Parlinjj- 
tou  did  not  hear  ;  I  tiesire  to  know  whether, 
u]»ou  that  occasioo,  you  heard  any  atiswer  to 
that  f|iiestioo  ? 

Levmz.  At  that  time  1  did  not  i  I  asked 
him  Uie  eame  question  once  afterwards,  and  he 
gave  me  no  ati>iwer  ;  but  seemed  to  me  to 
ihriuk  \m  head  into  the  pillow. 

L«ird  Viscount  Folke^xtonc.  When  Mr.  Cha- 
worth told  you  what  palsied  in  the  room  where 
ihftfy  fought,  did  he  «uy  that  lord  Byron  bid 
Jiiui  defend  himself,  or  any  thiog  to  that 
purpose  ? 

f^TiinM*    Mr.  Chawojib  told  me^  tkit,  co 


Trinl  of  Lord  B^ron^ 

his  turoiog  his  bead  frani  lfi«  Jt«clii 
lord  Byron*s  sword  balf-4rawD,  Hjli  ^ 
Draw,  draw !  1  am  sure  Mr.  Omrafi  i 
the  word,  DrM¥,  twtce. 

Lord  Viscount   Woikaicmt,     EM  Mr.  I 
worth  etpluiii  to  you  tu  wluift  nausfli  hi 
ceived  the  wouad  f 

l^evinx.    He  to!d    me  lie  fdl  tht  | 
hi»  sword  eii£nigetl  in  ftometliin^,  i 
look  it  to  be  my  lord's  bodj  ;    ibit,  i 
he  wished  to  disarm  hifn  ;    sifd  io 
ing  to  clo^e  in  for  ifijit  puqiA^  my  I 
ened   bin  sviord^  or   his  arm  (I  ftfn  i 
which  word  he  made   tt»e  ot\)  and  i 
I  hat   wound.     This  was  tUl  Ibat  btsrill 
on  that  subject. 

L.  H.  S.  The  witness  tiwy  williilrtv 

Att.  Gen,     My  lords,  as  th<^  wilno 
fully  proved  the  eiridertce  and  fid*  \ 
stated  to  your  lordships  in  llie 
not   I  rouble  your  lords»hi|vs  to  calf  i 
wj|nc<s&e8^  but  will    rest   our  efiiMiCM 
port  of  the  prosectittou,  here. 

SoLGcn,  My  lords ;  Tbeetidenceoafl 
of  the  prosecution  bein^  clased,  it  i 
me,  accordfng  to  the  usual  course  t/i  \ 
iny;-,  to  collect,  as  far  as  it  may  be  ( 
into  one  riew,  the  proofs  that  have  b 
and  to  apply  them  to  the  present  < 
very  painful  task  \  but  yet  justice  to  itktf 
peactf«  to  the  memory  of  the  deoeaatd,  i 
the  solicitude  of  his  surviving' frn 
fixes  and  rettuire^  it.     I    alionlit   wUEii 
charge  this  p^rt  of  my  dtiiy 
lence  and  humanity  which   |m 
of  ibe  deceased  in  the  last  hours  ut  huti 

The  noble  pristm^rat  ttie  bar  iscbar| 
having  killed  Mr.   Cha worth  deht 
inalii!iously ;   or,  in  the   tt-rm**   of  ♦l*«J 
ment,    with    malice    at<-, 
killeil    him»   is   a  truth  I 
he  who  lakes  away  the  lit*'  o(   ariouieTil 
sumrd  to  have  taken  it  away  dehb 
muhi  iously,  till  it  shall  appear  to  have  I 
effect  of  necessity »  of  accident,  or  of  I 
passion  ;  for  as  necessity    %vilj  justily,  I 
tidtfut  excuse  the  fact,  an  uiicoveriiakll 
port  of  passion  will  so  t^^r  alf4»ti*t.>  di#j 
as  to  make  thaii  which  woulii  '^"^l 

bppii    murkier    and    a    capii^d  '*l 

!<!  log  bier   only,    whieK  saves  tbe  btvi^M 
oftHfjder.  I 

This  is  a  conde«*cension  the  law  shewi*»^| 
fraiiues  of  ihe  humau  nuiitt,  which  u|>«0|iil 
and  suildcrn  provocaiiont«  cannot  coma 
self,  nor  uinintain  its  rea^iun  \  btil 
law  shews  this  cooiIl-  i^rthll 

of  the  subject,  with  ti4>niiJ*| 

serve,   agniosi  the  txci-s^s  ano  urK»y*-iiJ  tbt* 
nignity.     It  shekers  no  man  wbo*^? 

not  free,  perffctfy  tree,  froiri  ^*^  '* '*^^ 

lire,  i'xpressed  io  words,  or  j 
To  Ik'  tree  from  malice,  l»e  n. 
from  the  impulse  of  a  pn-  p  it  ;? 
deliberation  or  meditated  miicbitt.     i  i  '  • 
m  have  happened  thst  ilie  profOctuoo^^l 


Jut  Murder > 

.liate^  or  irritsitiiiof  ili J  iint  overcome  the  rea- 
l^ii)  tir  ofercomiiig  the  reuiaon,  ihe  ininil  co<4e(l 
Mid  ddiherfitetl^  or  liad  lime  to  cool  aitd  deli' 
P  araie,  and  ifieii  be  fought  and  killed,  lie  has 
kicurretl  the  euill  of  umlicious  murder  ;  he  did 
l^t  act  from  the  impulse  of  a  (iresetit  pasiiion  ; 
I  Oil  Mhaterer  molive  uctuatird  htm,  t%ht:lher 
llMDe  secret  grudge^  or  an  ima<^iuary  necessity 
llf  vtndicaling  his  houour,  or  of  satisfy  intj^  the 
I'OrM  of  Liacourofife,  or  any  otlier  latent  cause, 
^i«  is  no  iibjeci  of  llris  benignity  of  the  law. 
p  Tlie  law  books  do  not  make  It  murder,  only 
pbere  Ihe  passion  has  actuolly  cooled  ;  but 
Vliere,  in  Ihe  time  tlmi  has  pati^ed,  it  mt^ht  m 
■Misoti  to  have  cooled.  And  in  major  Oneby's 
^aee,*  no  more  than  an  hour  had  passed,  and 

ee   judges  thoughl   that   sufficient   for    the 
ir|)ose. 

There  is  no  specific  e? iilence  retiuired  to  shew 
nat  ttie  mind  li;iii  cooled,  it  tim^^t  depend  upon 
^e  particular  circumstances  of  ibe  case ;  but 
Mi  Ihe  books,  from  Uie  ttme  of  lord  Morley^a 
^ftse.f  in  tbe  reijrn  of  Charles  'i,  dow  n  In  tbe 
realise  of  a  late  learned  judj^e,  [qti.  Foster] 
[^ee,  Ibat  ibe  parly  eui^agio^  in  differtnt  con* 
^er&aiion,  or  iu  ainut»ements,  aD'ords  a  convmcing 
krcHif  that  he  laliauni  tiiuter  no  traobport  ofpas- 
ImiI  baticoidtfd  and  recovered  bis  reason, 
will  not  abuse  your  lordsbiph*  patience  witb 
111^  through  the  detail  of  the  evidence, 
our  tt'riisbips  f^erioua  and  unwearied  alien - 
o,  during  tbe  coune  of  (his  trial,  have  made 
i  unnecessary,  I  sliull  only  point  out  some 
ibservations  arising  from  wbat  passed  at  tbe 
hree  most  material  periods  of  time,  that  is, 
luring  the  conver^tiuu  in  the  room  ^bere  the 
lorupany  dined  ;  upon  tbe  stairs  j  and  in  Ihe 
'^om  be  tow. 

'  ^oibiojf  coutd  be  more  innocent  than  the 
poofersation  of  tbe  company  aliout  the  heat 
nnelbod  of  preserving  of  tbe  game  ;  there  could 
pe  no  offbuce  m  Mr.  €'ha worth's  saying,  that 
lie  had  more  game  upon  his  estate,  tbau  lord 
Ely  run  had  upon  his;  nor  was  there  any  in 
ord  By r 00 'a  aaying,  that  he  had  the  luos^t. 
The  first  o lie  11  ce,  ibat  seems  to  have  been  taken, 
Iras  my  iord  Byroads  repeating  tbe  question  re- 
lative to  sir  Charles  Sedley^s  manors;  Mr. 
Dooston  uuderiitoud  it  to  be  so.  Ijot  it  does 
naS  precisely  appear,  vihether  tbe  oflence  was 
jfiveo  by  the  bare  repetiliou  of  tbe  i|uestion,  or 
dial  it  im|Kjrled  a  reflection  upon  an  absent 
friend;  or  ibat  it  coniaioed  li»o  Bat  a  contra- 
diction of  what  he  had  asserted  ;  or  that  there 
iras  any  thing  particularly  atiVonling  in  the 
hone  ol  voice,  or  in  the  countenance^  or  in  tbe 
peslurc;  but  it  is  very  plain,  iMr.  Cba worth 
kbougbt  himself  otiVoded,  Bod  Mr.  Cha worth's 
ixiiressioiis  upon  the  siuii-^,  iu  uiiking  Mr*  Don- 
|tun  if  he  had  been  waniiug  i«i  '  bis  reply,*  im- 
>orts  ft  it  is  clear  too,  from  tbe  questions 
ord  HyroD  askeit  Mr.  Cbaworth,  tliat  lord 
Byron  saw  Mr.  Chaw  or  Ih  tmd  taken  oflence. 
But  whatever  effect   lord  Byron^s    bebaviuur 


A.  D.  17G5. 


[I22G 


*  8ee  it  io  Ihia  Colleclion,  ?oJ.  17,  p.  30. 
f  ibid.  Tol.  #1  |i,  770. 


bad  upon  Mr.  Cliaworth,  Mr.  Cbaworth's  baii 
ni>  visible  effect  upon  lord  Byron  :  no  action  or 
expression  of  anger  escaprd  him  ;  tbere  was  nr» 
change  of  countenance ;  tbe  matter  ended 
ibere.  Other  conYersation  engaged  the  com- 
pany ;  lord  Byron  appeared  to  Mr.  Hewett  to 
be  conversing  in  good  bumour  wtth  kVlr.  Moly* 
neux  ;  and  Mr.  Molyneux  confirms  the  reahty 
of  it.  A  full  hour  passed  in  general  conversa- 
tion. Mr.  Cbawortb  does  not  seem  to  have 
been  much  discompospd,  though  Fynmore 
says  be  wat  a  little  rufBe<l  ;  whicli  he  collect! 
frurn  a  mistake  be  made  in  settling  the  book  ; 
a  trifling  circumstance  1  from  wliicb  no  just 
iofereoce  can  be  drawn.  Bui  tbe  qneKtion  is 
not,  wb('tber  Mr,  Cbawortb  was  ruffled,  but 
whether  lord  Byron  was  agilalei)  with  any  vio- 
lence of  passion  ?  It  i^  for  your  lordsbips  to  de- 
termine whether  this  period  aflbrds  any  proof 
of  a  sudden  quarrel,  or  of  a  healed  temper; 
without  time  to  cool,  or  leisure  to  deliberate  ; 
and  wbelber  any  thing  ran  be  collected  from 
hence,  that  viill  intitle  the  noble  prisoner  to  this 
bemguiiy  of  the  law,  which  is  extended  onlj 
to  the  iruiietuosity  of  a  stidden  passion. 

In  this  situation  lord  Byron  left  the  room,  in 
appearance  cool  and  deliberate  ;  if  he  had  then 
a  purpose  to  tight,  I  am  afraid  it  must  bave 
been  deliberate;  if  he  bad  not,  it  imports  lord 
Bvron  to  prove  some  new  occasion  of  quarrel. 
Wbal  passed  u[)on  the  stairs  aflfords  only  one 
observation,  lord  Byron  told  Mr,  Cbawortb  be 
wanted  to  speak  to  bim*  If  tbe  purpose  for 
wliicb  be  wanted  to  speak  to  bim  is  to  be  ejc- 
plained  hy  what  nassed  below,  that  purpose 
was  deliberate  and  without  provocation  ;  jf  be 
had  not  sucb  purpose  in  hia  mind  at  that  time, 
will  it  not  warrant  Mr.  Cba worth's  liuspicioos? 
Your  lordsbips  v%iU  recollect  what  Mr,  Cba^ 
worth  said,  and  what  he  thought  was  the  rea- 
son for  calling  bim  to  an  account  in  that  place 
and  in  that  manner.  Your  lordsbips  will  re- 
collect likewise  what  disadvantages  tbe  place 
gave  to  Mr.  Cbawortb.  Jf  Mr.  Cbawortb  un- 
derstood the  sword,  he  understood  it  as  tbe  nc- 
eornpliKhment  of  a  gentleman.  It  never  hurt 
his  innocence,  be  abhorred  to  shed  the  blood  of 
any  man.  Tbe  darkness  of  the  room,  and  cod« 
finement  of  the  place,  probably  prevented  bim 
from  giving  a  signal  proof  of  it  in  disarming 
his  adversary*  There  is  reisou  to  believe  it. 
How  conspicuous  in  his  last  hours  was  his  be- 
nevolence to  all  mankind,  his  humanity  to  the 
author  of  bis  death,  his  serious  and  earnest  at- 
tention to  tbe  discbarge  of  tlie  remaining' 
duties  of  bis  life,  and  the  magnanimity  with 
which  he  bebeld  the  approaching  minute  of  hja 
death  1 

I  shall  lay  do  weight  upon  the  manner  iti 
w  hiub  the  wound  was  giveo*  Till  Mr  Par- 
tington was  examined,  an  inference  arose  to 
Ibe  disadvantage  of  lord  Byron  from  tbe  sup- 
posed silence  of  Mr.  Cbawortb,  when  be  wae 
asked,  Whether  tbe  wound  was  fairly  given  ? 
Mr.  Partington's  evidence  may  have  left  it 
now  in  some  doubt,  wbal  opinion  Mr.  Cba- 
vrorlh  bad  of  thai  circutnsianse*    I  wjU  not 


1227]  5  GEORGE  III. 

allow  mygelf  to  observe  upon  it ;  nor  will  T  re- 
peat that  un<ruarile<l  expression  your  lordships 
La?e  heard,  that  my  lord  Byron  used  after  the 
wound  was  friven,  aud  afler  Mr.  Chaworth  had 
closed  in,  and  was  endeavouring  to  prevent  fur- 
ther mischief.  It  must  give  pain  to  the  noble 
.  prisoner  to  hear  it  repeated ;  it  must  have  made 
Its  impression  on  your  lordships*  miuds;  it  is 
'fitter  to  remain  there  than  to  be  the  subject  of 
public  discussion.  It  is  for  your  lordships  to 
determine  whether  this  mischief  has  happened 
from  the  impulse  of  a  sadden  passion,  or  re- 
■alted  from  t  deliberate  and  premeditated 
purpose. 

Lard  High  Steward,  My  lord  Byron,  the 
counsel  for  the  crown  have  done :  now  is  the 
time  for  your  lordship  to  make  your  defence  ; 
and  if  you  have  any  witnesses  to  examine,  now 
18  your  time  to  call  them. 

Lord  Byron.  My  lords,  I  shall  not  call  any 
witnesses.  I  have  reduced  into  writing  what 
I  have  to  offer  to  your  lordships  ;  which,  as 
my  voice  is  very  low,  I  am  appreliensiva  of 
my  not  bein^f  beard  by  your  lordships,  and 
therefore  desire  it  may  be  read  by  the  Ulerk. 

Lords,  Read,  read. 

CUrk  reads : 

My  lords;  your  lordships  are  now  in  full 
possession  of  the  evidence  against  me,  and,  I 
am  convinced,  will  weij^h  it  with  the  wisdom 
and  impartiality  which  have  ever  distinguished 
the  court  of  the  Peers  of  Great  Britain. 

This  consideration,  my  lords,  afibrds  me  com- 
fort and  support,  though  oppressed  under  the 
heavy  load  of  an  accusation  of  murder,  against 
which  I  am  now  required  to  speak  in  my  own 
defence. 

My  inexperience  in  the  nice  distinctions  of 
law,  and  in  proceedings  of  this  nature,  but  ill 
qualify  me  for  this  task  ;  and  will  furnish  very 
ample  occasion  for  the  goodness  and  indul- 
gence of  your  lordships. 

The  witnesses  (as  far  as  their  knowledge 
and  observation  could  lead  them)  have  already 
sufficiently  proved  the  accidental  manner  in 
which  the  greatest  part  of  the  transaction  hap- 
pened ;  and  the  innocence  of  my  own  inten- 
tions, through  the  whole  of  it,  makes  it  difficult 
for  me  to  select  any  particular  passages  which 
may  more  immediately  demand  your  lordships' 
attention. 

Let  me  presnmc,  however,  to  lay  before  you 
my  own  narrative  of  the  fact,  according  to  the 
best  of  my  recollection.  It  agrees  in  substance 
with  great  part  of  what  has  fallen  from  the 
witnesses,  hut  it  supplies  some  [larticulars 
which  may  possibly  deserve  wei;;ht  and  credit. 
In  doing  this,  the  respect  which  1  owe  to  your 
lordships,  as  well  as  a  tender  concern  for  my 
own  honour,  will  not  suffer  me  to  preva- 
ricate, neither  will  1  conceal  or  deny  what  is 
true. 

Afier  we  had  dined  at  the  club,  about  seven 
o'clock,  a  discourse  began  concerning  game, 
and  Mr.  Chaworth  insisted,  that  strictoess  and 


Trial  of  Lord  Bt/roft, 


[\9a 


severity  were  the  only  eflectoal  methods  with 
the  country  |>eople. 

I  must  confess  that  I  was  of  a  difierent  opt 
uion,  being  for  gentler  measurea ;  and  tbci» 
fore  observed,  tnat  such  seTerity  might  sol} 
prompt  them  to  do  more  mischief:  aod  adM 
such  circumstances  as  I  thought  auppoital 
what  I  said. 

This  discourse  lasted  some  time ;  and,  dnf 
the  whole  of  it,  I  was  conoerned  to  observe  tlM 
the  deceased  gentleman,  without  any  csa^ 
treated  me  in  a  slighting  and  cobtempCoM 
manner. 

Towards  the  condnsion  of  it,  he,  with  mm 
heat,  said.  There  would  be  no  game  in  Ai 
country  ;  and  that  I  should  not  have  a  Mfk 
bare  on  my  esUte,  if  it  waa  not  for  the  mi 
taken  by  himself  and  sir  Charles  Sedlsy,  H 
preserve  the  game  on  their  manors ;  and  tiid, 
that  he  had  more  game  on  five  acres  tfau  I 
had  in  all  my  manors.  The  proposal  of  aM 
followed,  but  some  of  the  gentlemen  intniini 
and  no  bet  was  made. 

Mr.  Chaworth  again  mentioned  sir  CMa 
Sedley's  manors,  and  bis  care  of  the  giw; 
upon  which  I  happened  to  ask  what  maaonrf 
sir  Charles  Sedley  he  meant ;  when  he  ans«» 
ed,  NutUll  and  Bulwell ;  to  which  I  reaU,! 
did  not  understand  how  that  oonRi  bs^  ftr 
though  1  knew  Nuttall  was  sir  Charles  M- 
ley's,  yet  Bulwell-park  was  mioe. 

Mr.  Chaworth  answered,  that  besides  Bsl* 
well-park,  there  was  the  brdship  of  Baled 
town  (a  point,  which  i  believe  may  fomwk 
have  been  in  dispute  between  Mr.  Weotwsnn 
family  and  mine,  hot  has  long  lain  dormasl), 
and  that  sir.  Charles  Sedley  had  a  depolalia 
for  that  lordship. 

Upon  which  I  made  some  insignificant  ib- 
servationon  the  uncertainty  of  deputatioas,* 
they  are  liable  to  be  recalled  at  any  time,  ff 
something  to  that  purpose. 

Whereupon,  to  the  best  of  ray  recollcetia, 
Mr.  Chaworth  replied  in  the  following  wordi: 
"  Sir  Charles  Sedley,  my  lord,  lives  at  Mr. 
Cooper's,  in  such  a  place,  aud  I  doubt  sfli 
will  be  ready  to  give  your  lordkhip  satistadin 
about  his  manors,  if  you  bare  any  thisg  W 
say  concerning  them;  and  aa  to  myielC 
you  know  where  I  live,  aud  I  shall  be  fcsdr 
to  answer  your  lordship  whenever  yoo  aiu 
call  upon  me,  if  you  have  any  thing  to  say  W 
me." 

These  words,  ao  unexpected,  of  such  as  im- 
port, uttered,  and  repeated  in  the  manner  thtj 
were,  would  not  admit  of  any  rejily,  but  out  si 
end  to  the  discourse ;  so  that  uutbing  Airtkff 
passed  between  the  deceased  gentleman  sid 
myself,  at  that  lime;  but  during  the  sbsrt 
stay  I  made  afterwards,  I  might  pusiiHf 
have  s<m)e  very  short  conversation,  on  iodit 
ferent  matters,  with  Mr.  Molyneux,  who  ml 
next  me. 

And  here,  1  must  observe,  that  as  I  sat  at  ill 
lower  corner  on  the  one  side,  and  Mr.  Cha" 
worth  at  the  upfier  comer  on  the  other  side  oft 
long  table,  at  which  ten  people  had  dinsd^  ■* 


n 


Jhr  Murdeir* 


A.  D.  1765. 


[1230 


rtfaie  intimalions  for  a  future  meeting,  or 
ttiei"  sijfos,  couid  be  given  by  either  of  iis, 
ithout  being"  perceived  by  all  llie  rest  oF  ibe 
Ho  pail  Vt  tt>  vvlinse  evidetkce  I  tnust  reftT,  ob> 
Inrmg  inly  tbat  no  such  tbiug  is  pretended^  or 
Ifch  suspected  by  iioy  of  the  genlleraeii  wbi 
ive  been  c»Ued  uijoq. 

iSooo  ufter  this  discourse  was  finished  in  the 
Irrupt  manner  I  bave  menl]oned«  the  dub 
Nkk  waa  brought  to  Mr,  Chaworfit,  who 
m&lly  settled  il,  and  did  so  on  this  occasion, 
lougii  with  some  hurry  and  confusioD,  as 
llyQinore,  the  master  of  the  tavern,  has  toUt 
pur  lordships, 

I  The  book  being"  settled,  and  llie  reckon  tog 
lid  by  Mr.  C  ha  worth,  and  scverol  of  the 
knpany,  I  saw  him  go  behind  a  screen  in 
te  room  which  enlirely  conceals  the  door, 
1 4  I  I  tad  every  reason  to  conclude  that  he 
MB  gone. 

1  stayed  some  time  to  iettle  and  discharge  my 
ckontng,  which  mij^ht  detain  me  nsar  ten 
I  autes,  and  then  1  took  my  bat,  and  led  the 
ftnpaoy. 

Uls  I  was  going'  out  of  the  room,  I  remember 
Bt  somebody  passed  me  beliind  the  screen 
^r  the  door,  and  believe  it  might  he  Mr. 
boston,  who  (I  think)  says,  be  met  me,  but 
feng  in  the  nhade,  I  cuuld  not  well  distinguiah 
En,  so  as  to  take  particular  notice,  or  say  any 
ii  sig  to  him, 

^Vhen  1  opened  the  door,  I  saw  Mr.  Cha- 
torth  on  the  1  Gliding- place,  near  the  tipper 
^  of  the  stairs,  with  his  face  towards  the 
iMDf,  and  his  hack  to  the  stairs,  not  moving  (aa 
I  appeared  to  n»e),  hut  rather  aa  if  he  waited 
r—  somebody  coming  out, 
^Tbe  landing*' place  is  so  narrow,  that  to  po 
Ihlbout  the  door  of  the  room  was  nnavuidably 
'  pi^  near  Mr.  Chawortb,  who  immediately 
lid,  **  Has  your  lordship  any  commands  for 
UsV  which  he  spake  in  a  very  particular 
imi  Eignihcaot  manner,  and  nol  ^to  ray  ap- 
pension)  as  a  question  either  ot  civility  or 
■pect. 
fS,  only  answerefl,  **  I  should  be  glad  of  an 

Kortunity  of  speakiui;'  a  few  words  to  bim,*' 
.  Cha^vorth  replied,  **  That  tlie  stairs  were 
J*  a  proper  place,  and,  If  J  pleased^  we  would 

hinio  a  room.'* 
^e  then  went  down  together  to  the  landing- 
ce  of  the  one  pair  of  stairs  (far  we  dined  up 
r  pair  of  stairs),  and  there  the  %vaiter  was 
i,  and  as  it  was  repeated  three  or  four 
f,  it  is  most  probable  we  both  called  him. 
The  waiter  soon  came  utth  a  candle,  and 
[asked  ([  am  sorry  1  cannot  recollect  ^ho 
'.  question)  which  of  those  rooms  (meaO' 
fthetwo  rooms  on  that  floor)  was  empty,  be 
BW  open  the  door  of  one  tjf  them,  and  going 
first,  set  his  candle  up<on  the  table,  which 
lM»d  towartls  the  middle  of  the  room,  whilst 
l^wenttotheilra. 

ule  retired  immediately,  and  ihtit  the  door 
Iter  him. 

"  J   then  said  to  Mr.  Cha worth,  as  we  still 
Etu«4  itinding  by  the  tire,  *^  flow  am  1  to 


take  those  wonls  you  used  almve  as  an  inieniU 
ed  affront  from  sir  Churles  Htdley,  or  y<jur- 
self?*'  Mr  Chawortb  replied,  *'  Your  lord- 
ship may  take  them  as  you  [ilease,  either  at 
an  aflVuut  (»r  not,  and  I  iiiiugine  this  r<iorn  ia 
as  fit  a  place  as  atiy  other  to  decide  the  aifair 
in,'* 

Then  turning  round,  he  said,  he  would  boll 
the  door  to  prevent  any  inlerrupiiorT,  or  any 
body  interferiogj  or  words  to  thai  ftfeci*  Ac- 
cordingly, be  went  to  the  door  and  fitsteued 
it.  In  the  mean  time^  his  intention  briu^  but 
too  manifest,  by  ibis  actinn  and  his  b^t  exprei- 
iiofi,  I  went  round  on  the  further  side  of  the 
table,  towards  the  most  open  part  of  the  roiim, 
whk-h  your  lordships  have  been  Informed  by 
Fy  nmure  i^  about  sixteen  feet  square,  and  the 
furniture  did  not  leave  a  vacant  space  of  more 
than  twelve  feet  in  length,  and  as  I  lit* lieve, 
five  feet  in  breadth,  where  it  was  my  unhappy 
lot  lo  be  obliged  to  engage. 

Mr.  Chawortb  was  now  turned  round  from 
bolting  the  door,  and  as  I  dould  not  any  longer 
continue  in  doubt  of  bi^  intention,  it  was  im- 
possibfe  for  me  in  such  a  sttuatioir  lo  avoid 
putting  tny  band  Co  my  sword,  and  I  believe 
I  might  at  the  same  time  biil  liini  draw, 
or  use  some  other  words  of  the  tike  import, 
though  I  cannot  now  he  certain  of  the  ex- 
pression. 

Mr.  Chawortb  immediately  drew  his  sword, 
antf  made  a  thrust  ut  me,  which  I  parried  ; 
lie  made  a  second,  which  also  missed  of  its  ef- 
fect :  and  then  fiodtug  myself  with  my  back 
against  the  table,  with  great  disadvantage  of 
the  light,  I  endeavoured  to  shift  a  little  more 
to  the  right  hand,  which  uuavoidBbly  brought 
us  nearer  to  encb  other,  and  gave  me  an  oppor- 
tunity to  perceive  that  the  deceased  gentle- 
man was  making  a  third  pass  at  me.  We  lK>th 
thrust  at  the  same  time,  when  I  found  Mr, 
ChawoTih's  sword  against  my  ribs,  having  cut 
my  waiRtcoat  and  sTiirt  tor  upwards  of  eight 
inches;  and  I  suppose  i^  was  then,  that  he  re- 
ceived the  unlucky  wound,  which  I  shall  ever 
reflect  upon  with  the  utmost  regret. 

Mr.  Chawortb  paused,  and  said,  **  I  am 
afraid  I  have  killed  you;**  at  the  same  time 
putting  hk  left- band  to  his  belly,  which,  on 
withdrawing  it  again,  I  could  pecceive  wafl 
blo€>dy* 

I  /expressed  the  hke  apprehension  on  hif 
account ;  and,  Mr.  Chawortb  tellinir  me  that 
be  was  wounded,  I  said  that  1  was  sorry  for  it, 
and  went  tn  the  bell  near  the  fire,  to  ring  it,  in 
order  to  call  for  assistance,  whiUt  the  unfortu* 
nate  gentleman,  being  still  near  the  door>  uo- 
bolted  it. 

I  then  returned  to  him ;  and  as  f  was  sup- 
porting him  to  an  elbow -chair  which  stooil 
near  the  fire,  I  could  not  help  observing,  that, 
he  might  thank  himself  for  whjit  hih  hap*' 
pened,  as  he  bad  been  the  aggressor;  that  I 
iiipposed  he  took  me  fur  a  coward,  but  I  hoped 
I  had  as  much  courage  as  anodier  man.  Mr. 
Chawortb  replied,  Blv  lord*  all  I  hik^«e.\»^cK^ 
if  I  you  have  behaved  lik 


J23l|  .5  GEORGE  III. 

Diiririff  tlii«  A'lHtuturui  Fynmor^  came  into 
lli#!  r'Niiii,  tiMik  fiiir  nirorilN,  Mrhibl  I  was  em- 
u\nytj\,  \o  iUii  iifHt  fff  my  power,  in  HUpportinff 
Kir.  nimiriHili,  Ami  at  my  rM|uehi  went  for  the 
auriffffMi.  'I'lii'  riiiit  iA'tkw  ^rutU^neu  alHo,  who 
wiTr  uliovi!  hiuini,  lieiriK  now  alarmnl,  came 
ilowri  iritii  ihn  nHim  ;  wli«r«  1  cotitinurd  fur 
■oriiM  timr,  lifinff  diniiroiiii  to  |{ive  every  kind 
III'  ■MiMtaiici*  to  till*  AtHwaHuA  \  and  al'tcrwardii  I 
wailrd  in  a  n»om  below,  till  he  waa  removed  to 
Uin  own  iMiiiie. 

My  lonU,  ihii  ia  my  nirlaiirholy  utory.  I 
rannot  prelend  lo  call  4iiy  Hiliii'MieH  in  mipiMrt 
ul'  th(Mi«  imrlii  of  it,  which  relatK  to  what  pasn- 
eil  diirinir  the  few  niitmii^  wliiUt  we  were  in 
private ;  but  m  the  declaration*!  of  the  deceusol 
are  ndiiiiltiMl  nii  eviileiice,  your  hinlHhips  will 
conipiire  the  lirokeii  arcouutic  collected  by  those 
Ifciitleinen  who  diNCoiirMeil  with  him,  with  auch 
rircumNtaiiceN  nn  my  memory  and  kiiou  leilge 
fell  mo  arc  exactly  true. 

There  are  Ncverul  |K*rNnnii  now  attendiniif, 
and  reufly  to  HttcNi  variouNiiiNtaucciof  friendly 
intiinMHime  and  civ  ill  ly  from  me  to  the  de- 
rriiNed  ;  hut  an  nolhint^  haa  lN*en  offered  to  iu- 
iln(*e  your  lunUhiiw  to  Mieve  the  contrary,  I 
will  not  enter  into  that  evideiiee,  nor  offer  any 
iithrr  on  my  pari,  relying  upon  your  lonlships' 
juNtiee,  and  my  own  iiin<iceiice' :  not  only  as 
that  inniN'eiice  may  U*  pnMume«l  from  the  in- 
Nudioieiiey  of  prmif  on  the  irnrt  of  the  pro- 
■eeiitorN,  lo  rIiuw  either  malice  or  {iremedita- 
tion  111  ine,  but  aa  most  of  llic  witucMses  nna- 
niutoiinly  agree  in  declaring  the  provocation, 
€liallen|*e,  and  insult  oNcred  mc ;  and  your 
kinlNhipii  will  not  iniAijiiir  that  1  felt  them  with 
IfNM  emotion,  bi'cauKe  my  manner  and  my 
w  urdN  were  dei*eiit. 

1^1  V  luvd!i«  an  the  pit)vm*:Uion  w»s  tj^reat,  io 
the  tune  wa*  wvy  »ln»rl,  helween  liie  iMuiver- 
■mioo  und  my  meeting  ^ilh  Mr.  I'hauoith 
ii|Hiii  the  staii>,  which  was  tiutte  une\(>cel«Hl  to 
ine. 

Alter  tliAi  arridental  nteetini;,  the  lin^c  of 
iMiv  eiMUiiiiiiiit;  to«;ellier  (nliich  u:is  se.iree 
fiMiv  iiuiuilt'«>.  the  li^hu  ihe  uutitiiess  of  the 
pKiee.  and  i'«  t*r\  other  eirediiistiiiiee  pio^o.  in 
the  Mr\tnt^'st  manner.  ih«il  nothini;:  eouUI  be 
more  KuJileo  and  iiuprenu'dittited  lliao  the  inni. 
Ihet  that  endinl  m*  unfortunately,  and  in  ^hich 
I  re«*eived  the  lir»t  thru>l,  at  \\\v  peril  ot  luv 
o\«ii  life 

Ihir  tiifliiiiic  i\>uUl  not  1h^  «ery  repil.ir, 
eiiviMn«iAoe(tl  js  It  ^«as  ;  luit  iiin\«uh>ian<i.n^ 
»«Miie  iii>inuaitou«,  ui\  omii  lu.iul  iU*e$  not 
vliaii^e  me  ««iili  the  UM>t  ut)f^iriie!»«.  Tiie  faoit 
i!e\*1ai^\l  b\  .^Ir.  iMiAMOith.  iiii)KMt  the  «.vn- 
ti.i!\  ;  .Hut  >lr  Tjiriiii^ion  t).i<  ;u\(:tuiud 
\i>u*  lout>li4««,  that  ilie  U^i  dtv!ar^r.w»s.  it- 
JiUV^f  m'.o  »%■  Uin:^.  weiv  O  •  !fnkU»»»-l  l'_\  li;;ii. 
aiul  b\  tiie  oi:ur  i^er,  eau-i  p'r^euf.  a*  six 
annuel  u»  e«ri\  *j.:i>  ■..««  .»c:»  Ijj*I  Utn  4**sV. 

M\  lor^-v  ii  4>  •e:\  y  ji  i\  i-vMn  ili^  «%:  fti^Y. 
lV.il  ^tl  I  hAMWth  lu.J  i!vU  vxv'«\!  ;  jL.:a  iflhc 
iiih(n;:!\  ot  h<«  le(ii|>er  ma*  fuci-i.  x*  is.'t  ^^ 
ba*e  i««\»«C't>l  il»r4l  lu  iw»li«vt  j.«  :,:Ui-«j\ 
ib%Ht^ti  bt  bad  d^Nie  ih<  wjut\  -.    \^\&l  'ic:d- 


Trial  of  Lord  Bt/ronf 


[123! 


shinv,  I  hope,  will  at  least  make  that  aHowaaoi 
(which  the  law  permits)  to  the  Pike  infirmitj 
of  nature  in  bim  who  bad  been  injured. 

Grieved  and  affected  as  I  am  oo  tliis  oeci- 
sion,  and  willing  to  spare  any  reflection  on  tht 
dead,  the  necessity  of  my  defeoce  ootiffct  mt 
to  take  notice,  that  acconliu^  to  the  evidence 
of  Mr.  Dooston,  whom  be  desired  to  speak  wi^ 
on  the  stairs,  be  but  too  clearly  explained  the 
senae  in  which  his  words  were  inteudcd,  bjr 
askinii:  that  gentleman.  Whether  he  hsd  A- 
scrved  what  passed  between  himself  and  ne, 
and  whether  he  had  left  the  matter  short .' 

Such  a  behaviour,  my  lorda,  needs  no  cob- 
me nt,  es|iecially  if  considered  with  the  icqsrl 
of  it ;  after  we  came  into  the  room  belsv, 
where  he  declined  giving  me  any  reasomkk 
explanation,  though  such  an  one  might  ead/ 
have  been  given  as  would  have  been  c 
ent  with  my  honour  and  character. 

In  such  a  case  your  lordships  will,  no 
have  some  consideration  for  no  man  weakoea 
and  passion,  always  influenced  and  inflamed  is 
some  degree  by  the  customs  of  the  world. 

And  though  I  am  persuaded  that  compamoi 
can  never  obstruct  ;^'our  impartial  justice,  vet 
I  trust  that  you  will  incline  to  mitigate  ibe 
rigour  of  it,  and  administer  it,  according  to  kw, 
in  mercy. 

1  am  told,  my  lords,  that  it  haa  been  bcU  hr 
the  greatest  authorities  in  the  law,  that  if  cs»- 
tumelious  words  (and  still  more,  I  presune,it 
contemptuous  words  of  challenge)  have  faen 
given  by  one  man  to  another,  and,  before  thef 
are  cooleti,  either  bids  the  other  draw  his  sword* 
and  death  ensues,  aller  mutual  pasaes,  tbe  bet 
in  that  cuw  will  not  amount  to  murder. 

Therefore  I  am  willing  to  hope,  that  }fnt 
lordsihips,  in  wci>;:irmg  these  circuo^stiocHi 
may  find  sutiicieiit  cause  to  acquit  mevf  lI 
maiiee,  ami  to  ooustider  me  as  an  unhappy  nis. 
innocent  in  intention,  conscious  only  of  iiii>- 
turliiiie. 

My  lords,  (  viill  detain  you  no  lonser.  I 
am  in  \our  lurd^hip^*  judgmeui,  and  shall  fs* 
peot  your  sentence,  whether  for  life  or  J»t^> 
«« ith  all  the  suhmissiun  that  is  due  to  the  wli^* 
and   luokt  equitable  court  uf  ju  Jicature  lu  tt:: 

\%OllJ. 

Then  Ihe  l.r^rd  Ui^h  ^^(cward  retunMdki:^ 

to  his  chair. 

/.  H  <,  Lieutenant  of  the  Tower,  tiU 
W  liliiin  lord  B\  iou  from  the  bar. 

H  hich  »  as  done  accordingly. 

I.'S  r-t<Jcn:,  y\y  lords,  I  move  \^ 
lorv.sh:p>  10  aiijourn  to  ihe  Cnani'^r  of  hf' 
I.Aau'ri — L..  Ji.  Ay.  a\. 

I  /:  >  Ti:.<  House  is  aJjou-ned  tt  ttf 
rhjiwSfr  if  l^iriianiect. 

I'te  1  ^^rvls  and  others  retomed  to  th«  Cktf' 
U'r  i>r  l^&.-I.Ameat  m  me  same  order  ihty  cX* 

*  S<«  litfjch's  ili«kii»*a  PWHif  iktCfv**^ 
bc<k.  1.  c   51.  §  2«. 


Jbr  Murder* 

down :  and,  afrer  BOnie  lime,  ibe  House  wai 
A^jotirned  A^aiii  into  Westnnnster-hath  auil 
the  Teers  heinir  there  seated^  and  i\\e  Lord 
Higli  Slewani  tu  his  chair,  and  the  House  re- 
turned, the  Serjeant  at  Arms  made  proctama- 
tton  for  silence  ;ts  usunL 

ti.  H,  S,  Your  lordshijM  ha?e  heard  the  ert- 
dcftce.  ami  every  tWiny^  that  haa  been  alledged 
Ofl  hot  1 1  videB ;  and  the  solemotty  of  your  pro- 
eeeihags  recjuirea  that  your  lordships*  opinions 
oa  the  question »  of  Guilty,  or  Not  Godly, 
sbootd  be  delifered  sererally  lo  the  absence  of 
^hm  pri»on«fr,  bei^inning  with  the  junior  baron  ; 
mo4  that  the  prituner  shnuld  afterwards  be  ae* 
•oaiuted  with  the  renuk  of  ttiose  opinions  hy  me. 
la  it  your  lordships'  pleasure  lo  proceed  now  lo 
^v«  your  opinions  on  the  questioo,  of  Guilty, 
#r  Not  Guilty  ^^  Lords,  Ay>  ay. 

Then  Ibe  Lord  Hiijh  Steward  stood  up  un* 
covered  ;  and,  liegiuning  with  the  youngest 
peer,  aaid, 

Georjje  Ion!  Vernon,  What  taya  your  lord- 
ship f  Is  William  lord  Byron  Guilty  of  the 
felony  and  murder  whtreol  be  atanda  indicted, 
or  Not  Guilty  ? 

WhereujMin  George  lord  Vernon^  alandinuf 
up  in  hia  place,  uncovered,  aud  laying  his 
i^ht  band  uptm  bis  breasi,  aoHwered,  Not 
Guilty  of  Munler,  but  Guilty  of  Mau&taugbter, 
upon  my  bonuur 

In    like    manner  the     aevernl    lords  afker- 

mioucdp   beioi^  all  that  were  preaeot,  au- 
rtd  as  folio  wet  b  ; 

iwiinl  ioid  Oeaulieu.     Not  Guilty,  upoo 
my  honour. 

Joseph  lord  Milton,  John  lord  Muntacrue, 
Jnbti  lord  Lnvel  and  HulUod,  WiUtHrn  lord 
Snsion,  Nathaniel  lord  ScarKdiile,  ItjchanI  lord 
Grofvenor/rhiunna  lord  Grantham,  Lewis  lord 
8onde»,  Will  mm  U>n\  Wycoml^;,  Georei^e  lord 
I^ittfhoo,  WAU  lord  Hiirwicli,  William  lord 
Mansfield,  Horatio  lord  Walpole,  Thorn iis  lonl 
Hyde,  Vert'  lurd  Tere,  Witliacii  lord  Ponsonby, 
Henry  lurd  Bu*  ens  worth,  Matthew  lord  Fo'r- 
teacue,  Thomas  lord  Bruce,  K^imnel  lord  Ndo- 
dyji,  Gcori^c  lord  Kdt(ecuml»e,  TrtMiprick  IJt:iiry 
lord  Clietl worth,  Tiiumnv  lord  Montfurt,  John 
lohl  Munsou,  Williaui  lord  Kiot^,  Mnlthfw 
Ducie  lord  Ducie,  Charles  lord  Cadog-an, 
Hanuiel  lurd  Mftsham,  Kobert  lord  Trevor, 
£dniand  lord  Boyle,  Cbarlea  Sch.iw  lord 
Calhcart,  Witttam  lord  Craven,  Niiihaoiel 
lord  Ddamer,  John  lord  Berkeley  of  iStrat- 
ton,  Edward  lord  L«i(rh^  John  lord  Clifton, 
John  lord  St.  Johu  of  Btet->oe,  John  Pey* 
U>  lord  Willoiij^liby  of  Oruke,  Norbornt*  lord 
Botetourt,  Geurj^e  lord  Aber|;aveiiny  ;  Not 
Goilty  of  Murder,  but  Guilty  of  llrlanaJaaghler, 
upon  my  honour. 

Franct«  lord  Le  Deapmioer.  Not  Guilty, 
lf|Hin  my  honour, 

John  viscount  Dodley  and  Ward,  William 
flicu^unt  Courtenay,  Edward  visrount  Went* 
^o.ii.  Ir>i.,|  viiicx*aut  Spencer,  Wiiltam  vii.- 
c '  ^oiWf  G  eorge  r  iaoouui  Tor  ritigto« ; 


A.  D.  1765- 


[1234 


Not  Guilty  of  Murder,  but  Guilly  of  Man*- 
alaughler,  upon  my  honour. 

Hugh  fisci>oni  Falmouib.  Not  Gmtiy« 
upon  my  honour. 

Fredenck  discount  Botio^broka  and  Bainl 
John,  Thutiias  viscount  Weymouth,  Georgt 
viscoonl  I'ownshend,  Richard  viscount  Sa/ 
and  Scle,  Edward  ilscount  Hereford  ;  Not 
Guilty  of  Murder,  but  Guilty  of  Hanalaughteri 
upon  my  honour* 

Stephen  earl  of  Ilcbeater,  Thomas  earl  Foa- 
conberg,  Philip  earl  of  Hardtvir.ke,  Charles 
earl  CornwalUa,  Simon  earl  Harcourl,  Richard 
earl  Temple,  Hugh  earl  of  Northuuvberlaod, 
Henry  Arthur  earl  Fowls,  John  earl  of  Buck- 
inghamshire, William  earl  of  Harrington  ;  Not 
Guilty  of  Murder,  but  Guilty  of  Manslaughter, 
U|K>n  my  honour. 

George  carl  of  Orford.  Not  Guitly,  opon  my 
honour. 

John  earl  of  AsLburnham,  John  earl  W  aide- 
grave,  John  earl  Ker,  Gcorire  earl  of  Mac- 
clesfield, Henry  earl  of  Sussex,  Gef»rge 
earl  of  Halifax,  Heueage  earl  of  Ayl«»ford, 
Charles  earl  of  Tunkeiv illc,  William  eurl  of 
Dartmouth,  Wilhuin  luil  of  Stratford,  Edward 
earl  of  Oxford  and  Mortimf?r,  John  eail  of 
Bute,  Hugh  earl  of  Marchmont,  W  illiam  pari 
of  March  and  Rugleo,  William  enri  ot  Don- 
more,  John  earl  of  Breadalhane,  John  earl  of 
Loudoun^  Jumesearl  of  Abercorn,  Alf^Jioili-r 
earl  of  EgliniJftoun,  Jamfi  earl  of  Morioo,  Vere 
earl  Poulct,  George  William  c»rl  of  Coventry,^ 
Georjje  earl  of  Albemarle,  Richard  earl  of 
ScarWirough,  Oilier  Lewis  earl  of  Plymouth, 
Henry  earl  of  Cjainsborou^h,  Grori;**  Henry 
earl  of  Lilchfu-ld,  Anlhooy  Ashley  earl  of 
Sliafleshury,  Georgi't^arl  of  C'arihgan,  Williata 
Anne  Holies  earl  ot  EifSeir,  John  carl  of  Sand- 
wich, Daniel  earl  of  Wint^heliea  and  Noitiog- 
ham^  Charles  earl  of  Peterborough  and  Mon- 
mouth, Thtunaa  earl  of  Weatmorelaikil,  Basil 
earl  of  Dfiihigh,  Henry  carl  of  Soflulk  antl 
Berkshire,  Henry  earl  oV  Lincoln,  Hniry  earl 
«d  Pembroke  and  Montgomi'ry,  Francis  earl  of 
Huntingdon,  Granville  Levi^on  earl  Gower, 
(lord  riiauiherlain  of  the  houaehold,)  Wil- 
ham  earl  Talbot,  (lord  steward  of  the  honae* 
hold.)  Not  Guilty  of  Murder,  but  Guilty  of 
ManRtaughter,  U|>on  my  honour* 

Charlea  maniuiv  of  liockintfharo*  Not 
Guilty  of  Murder,  but  Guilty  of  lniioalauglit«r, 

upon  inv  honour. 

Fi  "    of  Bridgwater,  Henry  fhike  of 

ChsM.  gedukc  of  Manchester,  Wflhanfc 

Henry  Cavendi«b  duke  of  Portland,  Thomai 
Holies  duke  of  Newcastle,  Peregiine  duk«  <if 
Aucaatet-  and  Keiteten,  (lord  great  chamber* 
lain  of  England,)  John  duke  of  Argytr,  John 
duke  of  Uutland,  Thoman  duke  of  Leedi«,  Au- 
gustus Henry  duke  of  OralUm,  Charlea  duke 
of  Uictimotid,  John  duke  of  Betlford,  (Ion! 
preiiik'nt  of  Ibe  council,)  Not  Guilly  of 
Murdar,  but  Guilty  of  Manslaughter,  ujKin  toy 
bononr. 

Hia  royal  btghneai  Wilhom  Henry  duke  oC 
Gbuceitcr  auU    l^dv^Wr^.     ^'a^  ^W^v\  ^ 

4  K 


I9S5] 


5  GEORGE  III.  Trial  o/K.  Nairn  ond  P.  OgUvie^ 


[1SS6 


Murder,  but  Guilty  of  Manslaughter,  opon  roy 
liooour. 

His  royal  highness  Edward  dnkeof  York 
and  Albany.  Not  Guilty  of  Murder,  but 
Guilty  of  Manslaugfhler,  upon  my  honour. 

Then  the  Lard  High  Steward,  standing  un- 
tovered  at  the  chair,  laying  his  hand  upon  his 
breast,  said  ; 

My  lords,  T  am  of  opinion  that  William 
lord  Byron  is  Not  Guilty  of  Munler,  but  Guilty 
•f  Manslaughter,  upon  my  honour. 

X.  IL  S.  Your  lordships  have  found  that 
William  lord  Byron  is  Not  Guilty  of  the  felony 
and  Murder  whereof  he  stands  indicted ;  but 
have  found  him  Guilty  of  Manslaughter ;  one 
hundred  and  nineteen  of  your  lordships  having 
voted  him  GuUty  of  Manslaughter,  and  the  re- 
maining four  baring  declared  him  to  be  Not 
Guilty  generally  :  is  it  your  lordships'  pleasure 
tliat  he  should  be  called  in,  and  acquainted 
Iherewith  ? — Lords.  Ay,  ay. 

Proclamation  was  then  made  for  the  lieute- 
nant of  the  Tower  to  bring  the  prisoner  to  the 
bar,  which  was  done  in  the  same  order  as  be- 
fore; and  afterwards  (Proclamation  was  made 
for  silence,  as  usual. 

L.  H.  S.  William  lord  Byron,  the  Lords 
have  considered  of  the  charge  and  evidence 
brought  against  you,  and  have  likewise  con  • 
sidercd  of  every  thing  which  you  have  alledged 
in  your  defence,  and  upon  the  whole  matter, 
their  lordships  have  found  you  Nut  Guilty  of 
the  Murder  whereof  you  stand  indicted,  but 
Guilty  of  Manslaughter.  W hat  has  your  lord- 
ship to  alledgc  against  judgment  buing  pro  - 
uounccd  upon  you  ? 

ITpon  which  his  lordship  claimed  the  bcneiit 
af  the  statute  of  Kdward  the  sixth. 
Whereupon  the    l^rd    High   Steward  ac- 


quainted him,  that  he  was  atkiired  the  beoefit 
of  that  statute,*  and  waa  discharged,  paying  la 
fees. 

Proclamation  waa  then  made  for  iilenceii 
the  usual  manner. 

L.  H.  S.  My  lords,  this  trial  beiug  at  hi  aid| 
nothing  remains  to  be  done  here,  but  to  ddeiw 
mine  the  Commisfioa. 

Lords.    Ay,  ay. 

L,  H.  S.  Let  proclamation  lie  made  for  di^ 
solving  the  Commission  of  High  Steward. 

Serjeant  at  Amu.  Oyez,  Oyez,  Oyei !  Oar 
sovereign  lord  the  king  does  alrictly  eiiai|gt 
and  command  all  maouer  of  persons  here  pre- 
sent, and  that  have  here  attended,  to  deput 
hence  in  the  peace  of  God,  and  of  our  said  aovt* 
reign  lord  the  king,  for  his  grace  my  Lsid 
High  Steward  of  Great- Britain  intends  now  it 
dissolve  his  Commission. 

Tlien  the  white  staff  being  delivered  to  tk 
Lord  High  Steward  by  the  gentleman  usher  sf 
the  Black  Rod  upon  his  knee,  his  grace  siosd 
up  uncovered,  and  holding  the  staff  in  hoik 
his  hands,  broke  it  in  two,  and  declared  the 
Commission  to  be  dissolved  ;  and  then  leavisg 
the  chair,  came  down  to  the  woolpack,  sm 
said.  Is  it  your  lordships*  pleasure  to  adjoom 
to  the  Chamber  of  ParHament  ? 

Lords.  Ay,  ay. 

L.  H.  S.  This  House  is  adjonmed  to  fbc 
Chamber  of  l^rliament. 

Then  the  Peers  and  others  returned  back  ts 
the  Chamber  of  Parliament,  in  the  same  ortlcr 
they  came  down,  except  tliat  their  royal  high- 
nesses the  duke  of  Gloucester  and' duke  of 
York,  walked  after  the  Lord  Chancellor. 


*  As  to  ih(«,  see  in  this  Collection,  a.  d. 
1776,  the  Ciise  of  the  person  calling  bcrkU 
duchess  dowuf^er  of  Kingston. 


54C.  The  Trial  of  Katharine  Naiun  and  Patuick  Ogilvie,  for 
tlie  Crimes  of  Incest  and  Murder,  before  the  High  Court  of 
Justiciary  in  Scothmd,  upon  the  oth,  lith,  13th,  14th,  15lb, 
and  l()th  days  of  August:  5  Glokge  III.  a.  d.    1/65. 


Ct'RiA  JisTiciARiA  S.  D.  N.  Ueiris,  tenia 
in  Nova  Sc>ssioiiis  Domo  de  iMiinburgli, 
^liiiito  (lit;  meusis  Au>^tisii,  niillchimo  se|>- 
titi;rent€>iino  K('xai;rebinio  ijuiiUo,  per  llo- 
i)(irKl)ili>s\  irosDoininum  (jilhcrtum  Elliot 
do  i\liiito,  BaroiieUiiPy  Dumitium  Justi- 
ci?.i'iuin  C.icrirum,  Alexandrum  ISoswell 
de  Aurliiij!ftk,  Anilicaui  IVingle  de  Aie- 
nioor,  Ili'iiriruin  Home  de  Karnes,  Ja- 
cob inn  l'\'r<;iison  de  Pitfour,  ct  Grorgiuiii 
Drouii  lie  (.'oiilsion,  ConiioissioDanus  Jus- 
ticiariie  S.  JD.  N.  Kcgis. 

Curia  legitime  affirmata. 


LUran' 

Ka'horine  Nuirn^  \^i\\ow  of  the  dectuti 
TUowuxs  Ogilvie  of  Eastmilii,  iu  the  couuty  of 
Forfar  ;  and 

Valilck  Ogifvic,  lieutenant  of  llie  fiotli  re- 
i^iincnt  of  foot,  brother  grrmnn  of  the  said  de- 
ceasLMl  Tiiomus  O^iUic;  both  now  prisooeil 
in  the  Toibooth  of  Edinbur<;*i,  panneli. 

Indicted  and  accused  at  the  iDsfancf  ti 
Thomas  Miller  of  Barskimmiu^,  esq.  hi«mi- 
lesty's  advocate,  for  his  majesty 'a  intert«l,lif 
the  crimes  of  iuceat  and  murdcTi  in  BiMT 


1237J 


Jor  Incest  and  Murder, 


A.  D.  1765. 


[123S 


Mtationed  in  the  criminal  indictment  raised 
tbcretDent,  bearing^,  That  whereat,  by  the  law 
of  God,  and  the  laws  of  ihia  and  all  other  well- 
Mverned  realms,  the  crime  of  incest,  committed 
Eetwixt  a  man  and  the  wife  of  his  brother- 
fvrman,  especially  when  such  crime  ia  cofl«- 
■Htled  within  the  dwelling^.house  of  the  inhered 
llasband,  where  the  offenders  were  cherished 
mnd  entertained  by  him  with  conBdence  and 
tmt,  is  a  heinous  crime,  and  most  severely  pu- 
niibabie;  and  particularly  by  an  act  passed 
in  the  parliament  of  Hcotland,  in  the  year  1567, 
htmg  the  first  parliament  of'  king  James  the 
#1^9  chap.  14,  intituled,  **  Anent  them  that 
CDflimit  mcest,"  it  is  statuted  and  ordained, 
^  TiMt  quhatsumever  person  or  persones  that 
committes  the  said  abhominable  cryme  of  in- 
cest, that  is  to  say,  quhatsuraerer  person  or 
jimones  the^r  be  that  abuses  their  bodie  with 
•ik  persones  in  degrie,  as  God  in  his  word  has 
•xpresslie  forbidden,  in  onv  time  cumming,  as 
in  contained  in  the  xriii  chapter  of  Leriticus, 
anil  be  punished  to  the  death:"  And  also 
whereas,  by  the  same  holy  law  of  God,  and 
ftj  the  laws  of  this  and  every  other  well -go- 
verned realm,  all  wilful  homicide  or  murder, 
•ipcetally  when  perpetrated  by  poison,  and 
above  all,  when  such  murder  is  committed 
uader  trust,  or  upon  u  person  to  whom  fidelity 
and  affection  are  due  by  the  most  sacred  ties. 
Is  also  a  crime  of  most  heinous  and  atroeions 
natare,  and  severely  punishable :  yet  true  it  is, 
and  of  verity,  that  the  said  Katharine  Nairn 
and  Patrick  Qgilvie,  shaking  off  all  fear  of 
God  and  regard  to  the  laws,  have  presumed  to 
commit,  and  are  guilty,  actors,  art  anil  part,  of 
both,  or  one  or  other  of  the  said  heinous  crimes 
ef  incest  and  murder,  aggravated  as  aforesaid : 
ia  to  far  as,  the  said  Katharine  Nairn  having 
been  married  to  the  said  deceased  Thomas 
Ogilvie  in  the  month  of  January  last,  iu  this 
pretent  year  1765  ;  and  the  said  Patrick  Qgil- 
vie having  about  that  time  •  returned  from 
abroad,  and  taken  up  his  residence  at  the  house 
of  Eastmiln  belonging  to  the  said  deceased  Tbo- 
mat  Ogilvie  his  brother,  in  the  parish  of 
Olenylla  and  county  of  Forfar,  the  said  Ka- 
tbnrine  Nairn  did,  soon  after  her  said  marriage, 
alienate  her  affections  from  her  said  husband,  { 
aod  tall  into  a  course  uf  indecent  foniiiiarities 
with  the  said  Patrick  Ogilvie,  which  soon  lie- 
came  the  subject  of  obMrvation  and  regret  to 
faer  unhappy  husband,  and  to  her  friends  and 
family  ;  and  notwithstanding  repeated  admo- 
bHmhis  given  to  the  said  Katharine  Nairn,  and 
to  the  said  Patrick  Ogilvie,  by  the  said  Tho- 
BMt  Ogilvie  and  their  other  relations,  to  ab- 
aCain  from  such  indecent  familiarities,  they  ob- 
atiaaldy  persisted  therein,  frequently  ntiieil 
together,  and  continued  in  private  for  a  consi- 
derable time,  as  well  in  the  fields  at  within  the 
lioate  of  Eastmiln,  and  in  other  houses  and 

Ccee  of  that  neighbourhood ;  and  the  said 
ibarino  Nairn  and  Patrick  Ogilvie,  yieMing 
to  their  inordinate  desires,  did,  after  the  taid 
■Mrriage,  Fit.  in  the  montha  of  January, 
Vdbiavy,  Hircb,  April|  May,  aad  ium^  all 


last  past,*  and  before  the  l«th  day  of  tliat  loat 
month,  at  different  timet,  and  in  one  or  other 
of  the  roomt  of  the  houte  pf  Eastmiln,  and  in 
the  ont-bouset  adjacent  thereto,  lie  together, 
and  aboto  their  bodies  with  one  another ;  and 
thereby  they,  and  each  of  them,  committed 
the  abominable  crime  of  incett ;  and  their  inr 
decent  conduct  having  at  latt  become  the  sub- 
ject of  observation  and  jutt  censure,  not  only 
to  the  said  deceased  Thomas  Ogilvie  and  his 
family,  but  to  the  neighbourhood,  the  said 
Patrick  Ogilvie  was,  on  that  account,  dismissed 
by  the  said  Thomas  Ogilvie  from  his  house,  on 
or  about  the  23d  day  of  May  lost ;   and  the 
said  Katharine  Nairn,  did  upon  that  occasion, 
and  thereafter,  express  her  resentment  against 
her  husband,  and  by  the  most  outrageous  be- 
haviour ;  and  before  the  said  Patrick  Ogilvie 
left  the  said  house,  or  toon  after,  he  and  the 
taid  Katharine  Nairn  did  treaclierouHly  and 
wickei^ly  conspire  to  murder  the  said  Thomat 
Ogitvie hy  poison;  and,  up<in  diflerent  occa- 
sions, the  said  Katharine  Nairn  aignified  this 
her  wkked  purpose  to  Anne  Clark,  daughter  of 
the  decease<l  Allan  Clark,  officer  of  excise^ 
who  tlien  hved  in  family  with  her,  and  in- 
formed her,  tliat  the  aaid  Patrick  Ogilvie  had 
undertaken  to  provide  the  poison,  which  she 
did  not  then  believe  either  of  them  capable 
of,  und*  endeavoured  to. divert  the  said  Katha- 
rine Nairn  from  such  wicked  thoughts ;  hut, 
instigated  by  tlie  temfitatioiis  of  the  devil  and 
of  their  own  wicked  hearts,  the   said   Ka- 
tharine Nairn  and  Patrick  Ogilvie  persisted  in 
their  wicked  conspiracy  ;  anil  from  the  time 
the  said  Patrick  Ogilvie  was  dismisiied  from  his 
brother's  house,  he  and  the  said   Katharine 
Nairn  carried  ou  a  secret  correspondence  by 
letters,  and  had  private  meetings  together  for 
the  purpose  of  concerting  the  perpetration  of 
their  wicked  design  ;  one  of  which   letters^ 
without  a  date,  and  unsigned,  but  of  the  hand- 
writing of  the  said  Katharine  Nairn,  will  be  ' 
produced  in  evidence  against  them,  and  will  be 
lodged  in  the  hands  of  the  clerk  of  the  High 
Cotitt  of  Justiciary,  before  which  they  are  to  he 
tried,  that  they  may  see  the  same :  and,  for 
accomplishing  the  murder  so  concerted  betwixt 
them  as  aftiresaid,  the  said  Patrick  Ogilvie  did, 
about  the  latter  end  of  May  last,  repair  to  the 
burgh  of  Brechin,  iu  the  county  aforesaid,  and 
tliere  bought  aud  received  from  James  Caiw 
negie,  surgeon  in  that  burgh,  a  small  phial 
glass  of  laudsnom*  which  he  pretrudcd  waa 
for  his  own  health,  aud  about  half  an  ounce  or 
more  of  arsenic  pulverized,  and  pnt  up  in 
three  or  four  different  doses,  in  separate  paper- 
covert,  pretending  that  he  had  occasion  lor 
that  poison,  in  order  to  kill  some  dogs,  which 
destroyed  the  i;ame  in  that  part  of  the  country 
where  he  resided.     And  the  said  Patrick  Ogil- 
vie brought  the  said  poison  to  Alyth,  within  a 
few  milet  of  Eastmiln,  where  he  arrived  upon 


*  As  to  the  tract  of  time,  within  which  the 
offences  are  alleged,  tee  1  Hume't  Coaiiii« 
Trial  fov  CripMfC,  t^  ^^1^^  a\ ««%% 


I2S9] 


5  GEORGE  III. 


Trial  ofK.  Nairn  and  P.  Ogiivief 


{mi 


or  about  Monday  the  third  day  of  Jane  last,  at 
the  house  of  Aiidretr  Stewart,  roerchant  there, 
liis  brv>ther-in-law ;  and,  upon  the  day  follow- 
inff,  he  did  there  receive  a  letter  from  the  said 
Katharine  Nairn,  which,  by  her  orderi,  was 
4lelivered  to  him  in  private,  by  Elizabeth  8tur- 
i-ock  her  senrant;  to  which  he  returned  an  an- 
«wer  that  aame  day,  with  the  Mid  Elizabeth 
Nturrodc,  by  a  letter,  with  injunctions  to  de- 
liver it  privately  to  the  said  Katharine  Nairn  ; 
^hich  was  dime  acrordini^ly  :  and,  upon  the 
da^  followinir,  beinj;  the  5th  day  of  June,  the 
laid  Aoilrew  Stewart  havinn^  had  occasion  to  go 
to  the  house  of  Kastmilo,  he,  the  said  Patrick 
Oi(itvie,  did  send  with  him  two  small  phial 
glasses,  one  of  which  he  said  c<mtained  lauda  • 
num,  and  a  ^aper  with  directions  about  the 
manner  of  usmqr  it ;  and  also  a  packet,  which 
lie  said  conuined  salts,  and  a  letter  closed  with 
m.  wafer,  and  likewise  sealed  with  wax,  address- 
cfl  to  the  said  Katharine  Nairn  at  Eastmilu ; 
and  he  Informed  the  said  Andrew  Stewart  that 
these  were  medicines  for  the  lue  of  the  said 
Katharine  Nairn  herself,  and  desired  him  to 
deliver  them  an<l  the  letter  privately  into  her 
own  hands:  and  the  said  Katharine  Nairn, 
liavinpr  lieen  previously  advised  by  the  said 
I'atrick  ()|;ilvie,  that  he  was  to  f«iid  the  poison 
by  the  ^aid  Andrew  Stewart,  watched  his  ar- 
rival at  the  house  of  Eastmiln,  and,  Upon  his 
fioniiiif^  there,  conducted  him  into  a  private 
room,  anil  received  from  him  the  above  parti- 
culars, which  she  presently  locked  up  in  a 
drawer  aloiigst  with  the  letter,  without  readio(j^ 
tlie  same  ;  and,  in  this  manner,  or  by  some 
other  convevance  to  the  prosecutor  unknown, 
the  arsenic  lioucht  b^  the  said  Patrick  Oi;ilvie 
•s  aforesaid,  was  conveyed  by  him  to,  and  re- 
ceived by  the  said  Katharine  Nairn  at  the 
house  of  >^istmiln  :  and  the  said  Andrew 
ftitewart  linvincr,  some  time  aOer  his  arrival 
there,  discovered  to  the  said  Anne  Clark,  that 
lie  had  brouti^ht  some  ineilicines  from  the  said 
Palrirk  <lj;ilvie,  which  he  had  delivered  to  the 
said  Kuihiiricie  Nairn,  Anne  Clark  did  there- 
ii|K)n  diKi'UiKr  Id  the  said  Andrew  Stewart,  and 
to  IsuIm'I  !M*Kc;n/ie,  the  mother  of  the  said 
Tliouias  Oirilvi*',  her  3p[»rehensions  of  danger 
lo  tlui  said  Tliomas  Ojrilvie*K  life;  and  all  these 
persons,  or  some  of  them,  did  that  niijht  advise 
and  cuuti(»u  the  said  Thomas  Ot^ilvie,  to  take 
no  meat  or  drink  from  his  wife,  except  what  he 
Aaw  others  takin;;;  and  some  time  that  same 
iiiu^ht,  the  said  Katharine  Nairn  said  to  the  said 
Andrew  Stev%art,  she  wished  her  husbnnd  was 
<lead ;  and  the  said  Thomas  Oplvie  diil  that 
came  night  sup  with  the  said  Katharine  Nairn, 
liis  wife,  and  the  other  persons  above  nameil,  in 
liis  ordinary  state  of  health,  and  went  to  bed  at 
the  usual  time  of  nii^ht,  having  been  abroad 
the  pn'ceding  day:  that  next  nwirning,  the  6th 
♦lay  of  June,  or  one  or  other  of  the  days  in  the 
iN'ginning  of  that  month,  breakfast  was  set  in 
the  parlour  <«arlier  than  usual,  and  the  said 
Thomas  Ojrilvie  not  havine  tlien  got  out  of  bed, 
the  said  Katharine  Nairn  Hlled  out  the  first  of 
iUie  tea  in  »  bowl,  wiuch  ahe  Mid  the  wai  going 


to  carry  up  to  the  laini,  neaaia^  her  hoaband ; 
and  accordingly  lef^  the  jparlour  vhli  the  nid 
bow]  io  her  hand ;  but  inatead  of  earryiog  ii 
straight  to  her  bosband,  abc  went  into  a  cknrt 
adjoining  to  his  bed-room,  where  ahe  rcmaiosi 
for  some  time,  and  there  wickedly  and  felsH- 
ously  nixed  the  arsenic  which  she  had  noami 
as  ubresaid,  or  some  other  deadly  poiioa,  nm 
the  said  bowl  of  tea,  which  she  al'ierwards  ca^ 
ried  to  her  husband,  and  preascd  him  to  driik 
the  same,  which  he  accordingly  did :  and  ssm 
after  he  rose  from  bed,  went  abroad,  convcmi 
with  some  of  his  tenants  and  aerranta,  and  tki 
appeared  to  be  in  his  ordinary  state  of  hcahb; 
but  before  he  got  back  to  the  home,  and  wilhii 
the  space  of  an  hour  or  thereby  after  he  barf 
drunk  the  said  bowl  of  lea,  he  waa  eeised  widi 
a  violent  reaching  and  vomiting;,  and  haviig 
got  into  the  kitchen,  he  continued  there  fir 
some  lime  in  great  distress,  upon  which  he  m 
helped  up  to  his  own  room,  and  laid  in  kti, 
where  he  remained  reach ioflf,  voniting,  ui 
purging  with  such  violence,  thai  be  someiiaM 
appeared  convulsed  ;  and,  in  the  intervals  if 
his  distress,  he  did  say  to  his  frienda,  and  othoi 
about  him,  that  he  had  been  poisoned  by  tks 
said  bowl  of  tea  which  he  had  got  from  Ui 
wife ;  and  he  having  called  for  water  to  driik, 
which  was  brought  up  to  the  room  by  Asm 
Sampson  his  servant-maid,  in  the  same  boal, 
or  one  like  to  that  out  of  which  he  had  draak 
the  tea,  he  said,  "  Damn  that  bowl,  for  I  hsN 
got  my  death  out  of  it  alreaily,"  and  onleid 
her  to  bring  up  the  water  in  the  tea-kettle,  Ar 
he  would  drink  out  of  nothing  else  ;  and  bar- 
ing continued  in  the  ifituatiuu  aliove  descnM 
for  several  hours,  his  tongue  swelled,  and  bii 
mouth  became  so  parched  ami  dry,  that  be 
could  scarcely  speak ;  and,  duriiii;  his  illMiti 
though  from  the  l>eginning  very  alaniiiiitr,  the 
said  Katharine  Nairn  not  only  eiidea^tiurMl  to 
hinder  his  friends  and  nei<rhiK>ur»  to  haicM* 
cess  to  him,  hut  when  she  was  pressed.  Uy  ibe 
sail!  Andrew  Stewart,  to  send  for  a  sutL't^ 
she  obstinately  resisted  that  prupusal  till  Di'tf 
aun-st't,  Mhen  the  said  Thomas  O^ilwe  ber 
husband  appearini;  to  be  then  very  low  iU 
near  his  end,  she  sent  a  servuut  on'  horseback 
to  bring  Peter  Meik,  surgeon  at  Alyth,  wbo 
accordingly  came  with  all  dispatch  ;  but,  be* 
lore  his  arrival,  her  husband  was  dead,  bavio^ 
died  in  the  night  betwixt  the  6th  and  7t}i  ^i^)! 
of  June  last,  or  upon  one  or  other  (»f  the  tlaii 
or  nights  in  the  beginning  of  that  month  :  SM 
from  the  symptoms  of  hia  disorder,  and  wlisle 
circumstances  of  the  case  above-  recited,  it  cfi* 
dently  appears  that  he  died  of  the  poison  which 
was  mixeil  and  given  to  him,  by  the  said  Katha- 
rine Nairn,  iu  the  bowl  of  teaasabovementinofd. 
And  some  days  thereafter,  when  it  was  propoic^ 
to  inspect  the  dead  boiiy,  she,  Katharine  Nain^ 
apiieare<l  like  one  distracted,  and  cried  out, 
What  will  1  do !  and  the  said  Patrick  Ogiint 
being  advised  of  the  death  of  the  said  Tbootfi 
Ogilvie  his  brother,  to  whom  he  is  heir,  in  ca0 
the  said  Katharine  Nairn  be  not  with  cbiU,  hi 
immediately  came  to  Eastouhii  took  np  Ml 


12-VlJ 


Jut  Incesi  and  Mur 


A,  D,  176^5* 


[124* 


ihere^  aod  gate  the  necessary  orders 

the  itilennenf.      And  the  sunt   K^ihariiie 

Hmm  »ti«l  Piktrick  OgiUie,  having;  be«fii  npfire- 

lendt^  there,  and  eomiuiitnl  to  the  prison  of 

WfAr^  by  GeorgQ  CatnpbeU,  esq.  sbei  iir-stib- 

itiiute  of  thai  cuunlVt  us  guilty  ul'  the  murder 

if  tb«  said  Thomas  (>t(i)vie)  and  examined  by 

ftoid  iherilf*§ubatiuiie  upon  the '14th  and 

t3lh  days  of  June  last*  did  each  emit  tvio  ve- 

doctarationa,  winch  ivere  suNcnheit  h^ 

iCb  of  them»  nnd  by  the  aaid  ahGriff-iiiibsti- 

Aft ;  ivhich  declaraUuns  are  to  be  used  in  eri- 

icn€c  Ofirainst  them  npon  their  trial,  and  ahall 

«f  (udged  in  the  handia  of  the  clerk  of  tlie  said 

Dourtfif  JuiitM-tary,  that  tliey  may  haveacee&s 

>G  the  sskme :    mh\  another  examination  of 

iftid  Patrick  (>||^i)vie,  taken  before  Jatnes 

Ittlfour,  esq*  sherKr-fiiihstitute  of  the  county  of 

Edinburgh,  upon  the  vi^d  day  of  the  said  month 

^  June  l«st»  and  fiuh^crihed  by  him  and  the 

mid  James  Balfour  ;  nud  aUo  an  examination 

the  Mid   Katharine  Nairn,  taken  before  the 

id  James  Ualfour,  upon  the  24 ih  day  of  the 

id  month  of  Jane  last,  and  sitbsciibed  by 

lim,   will    likewise  be  produced  in  evidence 

i)^ain!«t  them  in  the  eourie  of  their  trial,  and 

nil  in  hke  manner  be  lodged  in  the  bands  of 

h«  ckTk  of  the  said  Court  of  Juaiciary»  that 

hey  may  have  acceas  In  see  ibe  same.     At 

BMt,  at  the  time  and  ploce  aforesaid,  the  said 

BBtaas  O^ilvie  was  murdered  or  died  by  poi« 

nW,   tvdftilly  ud ministered  to    him  ;    and    of 

^^bicb  murder  or  poi^oning^  the  said  Katharine 

iKairn  and  Patrick  Ogilvie,  and  each  of  them, 

mr  one  or  other  of  them,  are  §ruilty,  actors,  or 

mri  and  part.     All   ^fhich,  or  part  thereof,  or 

iliat  they  were  guilty  of  the  crime  of  incent 

idbove    charged    agaiuftt    them,    beingr    found 

ttn  by  the  f  erdict  of  an  atftize  before  tlie 

it  justice -genera  I,  juMtice'Clerk,  anil  com* 

itssionerii  o(  juHticiary,  they,  and  each  of  themi 

|ti|(ht  to  be  puiiisihed  with  the  paincf  of  tavr,  to 

*  e  terror  ot  others  from  committinc^  the  bke 

time  coming-.  Tuomas  Milxea. 

List  of  Assize. 
Sir  James  Clark  of  Peimycuik. 
Hir  Alexander  Gib»nn  of  Pentland* 
Sir  Robert  Morton  ot'  (j'oi(«r. 
Thomas  Trotter  of  I^IortouhatK 
t  GcijrLTi'  VVarreodfT  of  liurntstield. 
J^'  «fc)n  of  Braebead. 

J         I      iiiwick  of  Cruikaton. 
JiuH'!!  I'orreiit  of  ConimiMton. 
AlcxiriiJpr  Muirhea^l  of  Linhon«e. 
10  1 '  '  '      yttipleof  TordrL 

J  Mnariof  IVIaulalic. 

J  lie  of  Bit»erton, 

A  itffbam  of  Bonnytoui]. 

1  botnos  Brown  •  f  "' 
Alexander  Hhen i\  I ciih . 

Jarneft  Ftnlay  of  Uairyi'Td. 
Alrx^ruJt  r  Gib«oii  of  CliflonhalL 
J. I'M-  I  i.(M  of  Grort^iet 
h  llaUiell  of  Binnfi. 

*t  ii      :.,    I*  younger,  of  liouston* 
S^b^rt  iianifay  af  Blackcrvij^. 


John  Paterson  nf  Kirk  Ion. 

David  Dundus  youuf^er,  of  Newhaltf* 

James  Dalliui  younj^er,  of  Parklle. 
25   Henry  Cochran  of  Barbacklaw* 

Sir  George  Suuie  ot  Balgonie. 

Sir  John  Hall  of  Dun  glass. 

8ir  John  Hinclair  ol  Btevenaon. 

John  Henderson  of  Li^tpn. 
30  William  Hay  of  I.aw6eld. 

Charles  Hay  of  Hopes. 

Uichaid  Newton  of  Newton. 

James  Hume  of  Gemmelahiells. 

Alexander  Wedderbnrn  of  *H.  Gerinains, 
35  William  Ramiay  of  Pieaton. 

Oiirer  Colt  of  Auldham. 

John  Forrest  sen.,  merchant  in  Edinbargh* 

Wm.  Calleniieri  merchant  there. 

Ralph  Diiiida«,  merchant  there. 
40  John  Fordyce,  merchant  there. 

Daniel  SiHon,  merchant  there. 

Cieorgo  Chalmers,  nieichant  there. 

Wm.  Ramsay,  merchant  there*. 

Gavin  Hamilton,  bookseller  ther«« 
45  Archibald  Wallace,  merchant  there. 

GiLB.  Eliot,    Alcx.  Boiwcix^ 
Ano«  Pungls^  Geo.  Boown. 

LiffT  or  WrrN£ssea. 

The  WUncstes  to  (X)  marked  were  esamined 
for  the  ProKcutor, 

1  X  George  Spalding  of  Gtenkilrie. 

2  Beihia  Nairn  his  spouse.* 

3  X  Andfpw  Htpwari,  merchant  in  Alylh. 

4  Martha  0|(ilvie  his  spouse. 

5  %  James  Carneg:ie,  surgeon  in  Brechin. 

6  X  Gilbert  Ramaay^  sui^oa  in  Coupor  of 

Angus. 

7  X  Pct^""  Meik,  Burg^eon  in  Alyth. 

a  \  Dr.  John  Otriltie,  physician  in  Forfar* 
9  X  l^i^ut^naot  Geors^e  CampMI,  late  <if  die 
89tb  regiment  of  foot. 

10  X  Patrick  Dickson,  merchant  in  Brechin. 

11  The  Rer.  Mr,  Thomas  Alasson,  minister  ef 

Gleoyita. 

IS  Katbariue  Gruer,  relict  of M'Kenzie, 

late  iiervant  in  Kasitmihi. 

13  \  Jame&M*Kenzie,>jes8iotickrkofGleny|l«, 

14  James  Rattray  of  Kir khi Hocks. 

15  Anne  Robertion  his  vpoiisM!. 

16  William  CInrke  of  Holemerry,  one  of  llie 

eblern  of  the  parish  of  Gltmylla* 

17  I  Bltzabeth  8tnrrock,   late  servant  to  llie 

deceased  Thomas  0;filvie  of  Easlmiln. 
10  \  Anne  Haiiu^gon,  late  servant  to  the  naiil 

di'ceased  Thomai  O^ilvie  of  EnKtmitn. 
19  X  A teXMiider  Lindsay, lute  fiervant  to  tilt*  aaid 

deceased  Thomaa  Qgilt ic  of  Ea^lmiln. 
%0  \  Katharine  Campl)«ll,  lat«  aervanl  to  the 

aaid  deceased  TIm     *' ►         *  of  Eastmito. 
81  John  Guthrie  in  1>  1.,  Inle  irrraiil 

to  the  aaJd  decea»eo  i  numaa  O^ilfie  of 

Eoitmiln, 

*  A»  to  the  admiaiioD  of  female  wilneaaei  in 
Scotland^  ace  some  particulars  id  a  Nat«  m  ibc 
Catc  of  ttemiiterfctl  the  N«^x^^  ^«^.  VITU 


1S43]  6  GEORGE  III.  Trial  o/K.  Nairn  and  P.  Offlvie, 


[I24i 


9S  Aone  Robertson,  late  Kerrant  to  the  said  de- 

ceofed  Thomas  O^ilvie,  of  EastmtlD. 
93  Jolin  Rattray,  servant  to  John  Robertson  of 

Cray. 
24  Marf^aret  Downie,  servant  to  William  Ker, 

writer  in  Forfar. 
95  Jean  Low,  servant  to  William  Gorty,  taylor 

in  Forfar. 

26  X  Anne  Clark,  daogfhter  to  the  deceased 

Allan  Clark,  officer  of  Excise. 

27  X  Georfi^e  Campbell  of  Carsegoirnie,  esq. 

28  I  Mr.  John  Ure,  slieiiif- clerk  of  Forfar. 

29  Patrick  Orr,  writer  in  Forfar. 

SO  Ferfifus  Fen^usson,  residenter  in  Kirkton 

of  Glenylla. 
91  Mar^ret  Rait  his  spouse. 

32  William  Shaw,  residenter  at  Little  Fortber 

in  the  parish  of  Glenylla. 

33  X  i^^^^  Gilloch,  wrifiifht  in  DalnakelM)ck. 

34  X  Mr.  James  Bulfoiir  of  Pilricf,  advocate, 

sheriflT  substitute  of  Edinburgh. 

35  X  William  Dunlnr,  writer  in  Edinburgh. 

36  William  Campbell,  writer  in  Edinburgh. 

37  James  M^Niccol  in  Newton  of  Glenylla. 

38  John  Hall,  portionerof  Achlish. 

39  X  Jt^ines  Millam,  tacksman  of  the  Eastmilu 

ofGlenylla. 

40  Jnmes  Douf^l,  surfj^eon  in  Kerriemuir. 

41  Mr.  Lawrence  Browne,  minister  at  Lin- 

trethan. 

42  Andrew  Murison,  one  of  the  macers  of 

Justiciary. 

43  Charles  Copland,  messengfer  in  Ediuburgh. 
41  X  David  Rattray  yount^er,  in  Cainmock  in 

the  parish  ofGlenylla. 

45  X  John  Lamar  in  Craigendeach  in  the  said 
»    parish. 

46  Alexander  Bamet  in  Cammock  in  the  said 

parish. 

47  Helen  Murray,  spouse  to  the  sai'l  Alexander 

Baruet. 

48  X  J ^"3^^  Barnet,  son  to  the  said  Alexander 

Barnet. 

49  Alexander  Reid,  writer  in  Edinburgh. 
.50  David  Spalding  of  Whitelionse. 

hi  Alexander    Jleid,    tenant    in    Ennoch    in 

Glenkilrie. 
h2  John  Tudhope,  residenter  at  Guardviell  in 

the  parish  of  Libbcrton. 
r)3  Isobel  Fur(|uhar80n  his  spouse. 

54  —  Tudhope,  relict  of Knight,  and 

daughter  to  the  said  John  Tudhope,  resi- 
denter near  Dean. 

55  Mrs.  ^—  Dallas,  spouse  to  Gibb, 

cnachmaster  in  Cannungate. 

56  Dr.  William  Cullen,  physician  in  Edinburgh. 

57  James  Uussel,  surgeon  in  E«linlHirgii. 

58  X  l^(^bert  Smith,  surgeon  in  Edinburgh. 

59  James  Use, surgeon  in  Edinburgh. 

60  Williiun    Forrester,  or  Froster,  tenant  in 

Eastmiln. 

61  JohnTurnbull,  writer  in  Edinburgh. 
a  John  Stewart,  writer  in  Ediuburgh. 

63  Isobel  iVbKenzie,  relict  of  the  deceased 
Thomas  Ogilvie  of  Eastmiln,  and  mother 
to  the  deceased  Thomas  Ogilvie  last  of 
Eastmiln. 


64  Dr.  John  Rutherford,  physician  m  Edifr 
burgh. 

List  of  the  Writingi  and  other  Particulan  t 
be  adduced  in  Evidence. 

The  bottle  of  laudumm  mentioned  in  the  i» 
dictment. 

The  dedarationt  therein  meiitioned. 

The  letter  therein  mentionet^. 

A  letter  from  Katharine  Nairn  the  paaoelli 
the  deceased  Thomas  Ogilvie,  dated  Glcnkili}^ 
Weensday. 

A  letter  from  Katharine  Nairn  the  paad 
to  t^e  said  Thomas  Ogilf  ie^  dated  Glenkikj^ 
January  4ih,  1765. 

The  said  Indictment  being  read  over  to  tb 
pannels  in  open  court ;  and  they  bemg  » 
verally  asked,  What  they  had  to  say  agiiMl 
the  same  ?  They  answered »  They  were  Nit 

Guilty. 

Procure  tort  for  the  Protecutor.^Thaim 
Miller  of  Uarskimming,  esq.  hia  roajeMjr^ssl- 
vocate,  for  his  majesty's  interest;  Mr.  Jaae 
Munliromery,  advocate,  his  majesty's  aolliciHr; 
Sir  David  Dairy mple,  Mr.  Patrick  Murray, ad 
Mr.  Darid  Kennedy,  advocates. 

Procurators  in  Defence, — Mr.  Alexaate 
Lockhart,  Mr.  David  Grenie,  Mr.  David  Rm, 
Mr.  Andrew  Crosbie,  and  Mr.  Henry  Daodm 
advocates. 


Dundas,  for  Katharine  Nairn  the  . 
repealed  the  signed  defences ;  and  reprocalA 
That,  in  1764,  the  now  deceased  Thomas 0|^ 
vie  of  Eastmiln,  a  gentleman  rather  advaooi 
in  years,  of  a  tender  constitution,  and  pssioMrl 
of  a  very  small  fortune,  made  his  addresses  M 
this  unfortunate  pannel,  (then  scarce  I9ytm 
of  age)  in  proposals  of  marriage:  which,' ces- 
trary  to  the  opinion  of  her  friends,  by  rensnd 
the  smallness  of  bis  fortune,  she  accepteil  d 
from  principles  of  pure  love  and  afieciion:  isd 
the  marriage  being  accordingly  celebrsled  ii 
the  beginnincT  of  January  last,  1765,  wasdi»- 
solveil,  by  Mr.  Ogilvie^s  death,  upon  the  6ib 
of  June  last;  when  the  affections  she  hail  cno- 
ceivcd  for  her  htiKband  can  scaree  be  suppuaJ 
to  have  bad  lime  to  cool  or  ^uhside. 

Nolwitbstundi!)<;  of  which,  it  is  her  now  vrrr 
singular  inisi'ortune  to  be  indicted  and  aecoiei. 
at  the  instance  of  his  majesty's  advocate,  upoi 
the  inlormation  of  Alexander  Ogilvie,  her  hot* 
band's  youngest  brother,  as  guilty  of  tvroflf 
the  most  enormous  crimes  knowo'in  iheUw: 
1st,  The  crime  of  incest,  which  she  is  chaf^ 
to  have  committed  with  lieutenant  Vund 
Ogilvie,  her  htishand's  immediate  youogfr 
brother  ;  2dly,  The  crime  of  murder,  cuBh 
milted  upon  the  person  of  her  said  hufbsaA 
by  poison  administered  to  him. 
'Her  parentage,  education,  age,  sex,  cbs- 
racter,  and  behaviour,  in  that  stage  of  life  pr^ 
vious  to  her  marriage,  when  female  paseiotf 
are  most  powerful  and  predeminant,  wbick 
she  Hatters  herself  will  be  attested  kypir- 
sous  of  the  greatest  honour  and  pfolity,  rmtf 


1215]  ■ 


for  Incest  and  Murder, 


A.  D.  1765. 


[1S46 


il  hitfhly  iocmlible,  that  any  pcnou  not  bar- 
deoetl  and  iiinred  to  every  siiecies  of  wicked- 
nefs,  lo«t  and  abandoned  to  every  principle  of 
rirtue,  should  at  once  plunge  into  crimes  of  to 
leep  a  d^e. 

Conscions  of  her  innocence,  she  wishes  for 
■othinir  more  ardently  than  a  fair  and  impartial 
hrial,  as  the  only  means  of  reparation  that  can 
be  made  to  her  injured  character,  so  much  tra- 
Aseed ;  and  which,  in  the  event,  she  is  hope- 
ful, will  appear  to  be  the  result  of  the  most  in- 
veterate rancour,  hatred,  and  deailly  malice, 
€oiioeire«l  against  her  by  one  of  her  ovin  sex,  a 
pcrsoo  of  most  flagitious  life,  and  abandoned 
character,  and  who,  she  is  now  told,  is  the  prin- 
dpal  evidence  meant  to  be  used  against  her. 

Since  her  imprisonment,  no  endeavours  liaTe 
been  spareil  to  impress  the  public  with  senti- 
ments of  her  guilt,  by  publication  of  many 
Rilae,  malicious,  and  wicked  reports,  industri- 
•osly  propat^ated  to  the  prejudice  of  her  ge- 
■eral  character. 

But  she  rejoices  in  the  appeal  she  will  soon 
be  able  to  make  to  the  world,  to  her  judges  and' 

C*  iry ,  to  vindicate  her  from  the  charge  of  those 
•rrid  crimes  with  M-hich  she  stands  now  ar- 
raigned. At  the  same  time  she  cannot  know 
what  false  evitlence  may  be  produced  against 
Imt,  self-preservation  requires,  that  she  ^ould 
net  pass  over  any  material  ol»jeciion  to  the  form 
«f  this  indictment. 

And  in  that  view,  she  objects  to  that  article 
•f  the  indictment  u  hich  ciiarges  the  crime  of 
jncest,  said  to  have  bpcti  committed  in  one  or 
of  the  ro«ims  of  the  house  of  £astmiln, 
MC-houses  adjacent  thereto,  at  different 
s,  in  January,  February,  March,  April, 
May,  and  June,  all  last  past,  and  before  the 
Ifllli  day  of  that  last  month ;  that  is,  in  other 
mrds,  from  tlie  day  of  her  mirriage,  till  the 
M  day  after  her  husband's  death. 

She  takes  no  I'Xtreption  to  tiie  generality  of 
Ae  places  char^eil,  where  this  crime  should 
beve  been  ci»minitte<l,  viz.  **  In  one  or  other  of 
Ibc  rooms  of  the  house  of  Eastmiln.  and  out- 
adjacent  thereto;*'  though  she  is  ad- 
d,  that  after  so  full  a  piecotfoiiion  as  siie 
b  told  has  been  tak^'ii,  by  rxnuiinatiou  upon 
Wth  of  every  person  that  could  be  suppiMted  to 
bare  the  least  know  ledi^e  in  these  mattci-s,  at 
vMeh  none  wi^re  allf»wed  to  be  present  upon 
bvr  part,  the  places  \t  here  this  supposed  criuie 
li  eaid  to  h'lve  been  mi  frequently  refieated, 
lIlMild  have  hi'eu  specially  cuiidescentled  upon, 
HmI  deNcribed.  But  she  \s  advised,  and  hum- 
bly snhiitiis  it  to  the  roni«ideration  of  her  ho- 
■avrahle  jiHlges.  and  the  impartial  world,  that 
%  BioNi  iirilM'tHimiuu*  and  improper  latitude  has 
been  t  >'  i  n,  in  rh;ir<;ins;  the  time  of  the  com- 
■sihhi  .  '-t  this  snp|H>8od  ofl'ence,  comprehend- 
fcs^r  i.ii  vlioie , space,  every  hour,  day,  week, 
feii«l  r*.'<i,\||,  I'lom  the  period  of  her  marriage, 
fea  h>-.  iiuNtmnd's  death,  and  even  while  he  was 
l^ih^  >.  roriise,  before  his  interment  on  the  12tU 
l>f  Jnnr. 

Tn<*  diRadvantages  to  which  she  most  ne- 
srily  be  ex|iosed|  in  making  her  defenoes 


against  so  general  a  chaige,  are  too  obvious  to 
need  illustration  ;  and  therefore  she  does  hum- 
Idy  insist,  tbat  this  branch  of  the  indictmeut 
cannot  be  anstaioed,  or  admitted  to  proof. 

Bat  if,  mntrary  to  expectation,  the  same 
shall  be  sustained,  she  proposes,  by  undeniable 
evidence,  to  traverse  and  redargue  every  ma- 
terial circumstance  charged  in  the  indictment, 
as  well  with  regard  to  this  as  the  other  crime 
with  which  site  is  accused ;  and  without  de- 
parting from  any  other  defences  which  may 
occur  to  her  pounsel,  the  great  lines  of  those 
facts  which  she  proposes  to  prove^  wdl  be  these 
following : 

1st,  That  she  accepted  of  Mr.  Ogilvie  for 
her  husband,  contrary  to  the  opinion  of  her 
friends,  out  of  pure  love  and  afl'ection :  that 
Mr.  Ogilvie  before  his  marriage,  was,  and  cqih- 
tinued  thereafWr,  so  long  as  he  lived,  to  be  of  a 
tender  constitution  :  that  he  had  repeated  and 
violent  attacks  of  internal  disonlers,  cholic  pains, 
convulsions  in  his  Imwels,  &c.  iasomvcb  that  be 
was  not  only  looked  upon  to  be  in  a  dangenme 
way,  but  having  had  some  violent  attaclcs  re- 
cently before  bis  actual  death,  gave  himself 
up  for  lost ;  and  lieth  the  day  and  the  night 
before  he  actually  died,  liad  such  violent  re- 
turns of  these  disorders,  that  he  thought  him- 
self dying,  and  resolved  to  have  sent  fur  u  phy- 
sician at  many  miles  distance, 

Sd,  That  the  pannel  herself,  soon  after  her 
marriage,  did  likewise  fall  into  a  bad  state  of 
health,  costive  in  her  body,  and  restless  iu  the 
night,  which  oldiged  her  frequently  to  take 
small  doses  of  salts  and  laudanum. 

3d,  That  lieutenant  Patrick  0{;i!vie,  her 
husband's  younger  brother,  the  supposed  as- 
sociate in  the  crimes  charged,,  having  retunied 
from  the  East  Indies,  broken  and  8liallere<l  in 
his  constitution,  much  about  the  time  of  the 

INinners  marriage,  came  to  pay  his  first  visit  to 
lis  brother,  and  for  some  time  had  his  princi- 
pal residence  in  his  brother's  house;  whereby^ 
anil  by  means  of  his  near  relation,  he  distin- 
guished a  liecoming  friendship  and  intimacy 
with  the  pannel,  his  sister-in-law. 

4ih,  That  the  pannel  having  inadvertently 
allowed  herself  to  run  short  of  the  salts  and 
laudanum  she  used  to  take,  and  ha\ing  occa- 
sionally mentioned  this  in  the  hearing  of  lieute- 
nant Ogilvie,  he  told  her,  that  as  these  were 
mcdi(*ines  which  he  himself  had  been  advised 
to  u.se,  he  had  brought  borne  in  his  chest  a 
small  quantity  of  laudanum,  and  a  parcel  of 
salts,  of  the  ^ery  best  quality ;    and  that  if  she 

tdeased,  he  would  send  her  a  small  phial  of  the 
auflanum,  and  a  few  doses  of  the  salts,  how 
soon  his  chest,  in  which  they  were,  should  ar-i 
rive  from  Dundee.  8he  accepted  of  the  ofler ; 
and  did  accordingly  some  time  after  receive* 
Irom  him,  by  the  hands  of  Andrew  Stewart, 
brother-in-law  to  Eastmiln,  who  came  to  Easl- 
miln  on  an  occasional  visit,  a  small  phial  of 
laudanum,  aud  two  doses  of  salts  ;  and  whirb 
are  sup|>osed  to  be  the  particulars  alluded  to  i» 
this  indictment,  as  the  doees  of  poison  saiil  te 
be  secretly  conreyed  to  the  ^^autteL 


1847]  5  GEORGE  IIL  Trud  o/K.  Nairn  and  P.  OgikU, 


[1218 


5th,  That  Alexander  Oiplvie,  the  younger 
brother  of  her  huKban«l,  had,  about  the  be- 
ginning of  this  year  1763,  intermarried  with  a 
woman  of  the  fowest  rank,  the  daufsrhter  of  a 
common  porter  in  Edinburgh,  which  gave 
great  offence  to  his  twi>  brothers,  and  the  pan- 
net  does  not  doubt  but  she  might,  upon  occa- 
siun  thereof,  have  expressed  her  sense  and 
feeling  of  the  reproach  thereby  brought  upon 
their  family.  Of  which  the  said  Alexander 
Ogitvie  having  got  intelligence,  this,  joined 
with  the  disappointment  in  the  expectation  he 
had  conceived  of  the  succession  to  his  brother's 
estate,  he  from  thenceforward  entertained  a 
most  groundless  resentment  against  the  pannel, 
the  innocent  cause  of  that  disappointment; 
and  look  erery  occasion  to  publish  the  most 
scandalous  falselioods,  calculated  to  create  a 
Hiisunderstanding  between  her  and  her  hus- 
band. 

6th,  That  for  some  time  before  the  said  Alex- 
ander Ogilvie*s  marrriage,  he  had  cobabiteil,  in  a 
most  unbecoming  manner,  with  Anne  Clark,  a 
cousin-f^erman  of  the  family ;  a  woman  of  the 
most  infamous  character,  and  who,  for  a  course 
of  years,  had  lived  as  a  common  servant-maid, 
in  one  of  the  most  notorious  stews  or  lewd 
bouses  in  Edinburgh,  and  other  houses  of  bad 
lame,  till  at  lenirih  she  took  up  her  residence 
wiih  the  said  Alexander  Ogilvie. 

7th,  Anne  Clark's  relation  to  Mr.  Ogilvie^s 
family  furnifthed  Alexander  Ogilvie  with  a 
pretence  of  sending  her  over  to  Easlniiln,  (o 
pass  some  weeks  there,  and  to  endeavour  by 
every  possible  means,  to  brini;  almut  a  recon- 
cilement bet\%een  Mr.  Ogilvie  and  his  brother 
Alexander.  In  this  view,  she  attached  herself 
at  first  to  the  pannel,  thinking  by  her  means  to 
have  some  iiidiience  with  Mr.  Ogilvie,  himself; 
till  at  length,  finding  they  were  both  equally 
averse  to  have  any  further  correspondence, 
either  with  Alexander  or  his  wife,  she  fell  to 
work  in  another  way;  quarrelled  \«ith  the 
pannel ;  made  her  court  to  Mr.  Oirilvie  ;  and 
first,  by  dark  insinuations,  thereafter  more  ex- 
plicitly, endeavoured  to  instil  into  Mr.  Ogilvie's 
mind,  suspicions  of  the  pannel's  virtue,  and  of 
a  criminal  intimacy  between  his  brother  the 
Jietitenant  and  her;  and  that  they  had  even 
gone  the  leng:th  to  form  a  scheme  to  deprive 
iiim  of  his  life,  by  poison  or  otherwise ;  and 
these  her  pretended  suspicions  she  communi- 
cated to  the  good  old  lady  Mr.  O^ilviu's  mo- 
ther :  the  tendency  of  all  which  was,  to  ope- 
rate a  misunderstanding  and  separation  betwixt 
Mr.  O^riUie  and  the  pannel. 

8th,  This  diabolical  contrivance  happened 
unluckily,  in  point  of  time,  to  coincide  with 
Konie  diHVrences  that  had  arisen  between  Mr. 
t)<,(ilvie  and  his  brother  the  lieutenant,  in  settling 
accouiit.s  about  money- matters  ;  which  having 
at  length  produced  high  words,  and  put  both 
brothers  in  a  passion,  lieutenant  Ogilvie  de- 
clared he  wou!«l  stay  no  longer  in  a  house 
where  he  had  been  so  used ;  and  was  preparing 
to  leave  it  directly,  when  Mr.  Ogilvie  giving 
ifjy  to  bis  jiassioD,  gave  th«  parting  blow,  by 


acquainting  the  lieotenint  of  the  informatioQ 
he  had  received  of  his  familiaritT  wiih  the  pao- 
Del,  his  sister-in-law;  by  which  lieuteniK 
Ogilvie,  justly  enraged,  having  pereroptorili 
insisted  to  know  his  author,  Anne  Clark  csbk 
at  last  to  be  suspected  as  the  aathor  and  pro- 
pagator of  this  wickeil  and  malicioas  story; 
and  what  afterwards  happened,  too  fully  jw- 
tified  the  suspicion. 

dih,  Lieutenant  Ogilvie  immediately  left  tkc 
house.  Mr.  Ogilvie  soon  cooled,  and  bectiac 
sensible  of  the  folly  of  his  proceedings,  andtf 
the  injury  he  had  done,  both  to  his  wife  anl 
brother ;  as  so  abrupt  a  separation  coald  Mt 
tail  to  put  them  in  the  mouth  of  the  worU. 
He  therefore  wrote  to  bis  brother  the  licvie- 
naut,  pressing  him  most  anxiously  to  retun 
to  the  family :  the  pannel,  as  far  as  deeeacy 
would  permit,  joined  in  the  same  request. 

10th,  At  this  unlucky  period  was  Mr.  Ogil- 
vie seized  with  a  return  of  one  of  those  vioint 
disorders  in  his  bowels  and  atomacb.  He  M 
been  almost  dead  the  day  before  ;  lie  reltpM' 
at  night,  complained  much,  thought  himMlf 
a-dying,  continued  ill  all  night ;  finding  bioi- 
sell  easier  arose  in  the  moruiug  as  nsml; 
again  turning  bad,  returned  to  bed,  where  he 
took  a  bowl  of  warm  tea  and  biscuit ;  after 
which  he  made  another  effort,  got  up,  pot  cs 
his  clothes,  went  abroad  to  take  the  air,  re- 
lapsed, fell  a  vomiting,  threw  up  a  deal  of  Uf, 
anti  expired  about  19  that  night. 

11th,  The  paunei'a  behaviour  nnon  Ibik 
melancholy  occasion  was  decent  and  becsa- 
ing,  expressive  of  the  real  sorrow  and  grief  ihe 
felt.  The  tale  that  is  told  of  her  having  ad- 
ministered the  poison  in  a  bowl  of  tea  Ihil 
morning,  will  be  disproved  in  the  stfoofot 
manner.  She  had  none  to  admiuister;  ••! 
every  circumstance,  as  it  is  expected  to  ooiM 
out  on  proof,  will  shew,  that  she  had  it  Dot  io 
her  power  so  to  have  done,  had  she  iotei^ 
it ;  and  that  de  facto  none  was  administered. 

12th,  Mr.  Ogilvie's  corpse  remained  OBia- 
terred  until  the  ilth.  It  was  viewed  bjpM- 
sicians  and  surgeons  of  character  and  ski!i: 
the  appearances  were  nothing  hut  what  istiinii 
in  natural  distem|>ers  proceeding  from  varioui 
internal  causes.  A  dissection  of  the  bodr 
would  easily  have  shewn  whether  there  ImI 
been  poison  in  the  case  or  not ;  and  it  was  ^ 
dnty  of  Alexander  OgiUie,  the  infonner,  vlw 
had  come  to  the  house,  and  stoppeil  intemcDl 
for  one  day  upon  this  very  suspicion,  to  bave 
caused  the  Inxly  to  be  laid  open.  This  was  mi 
done ;  whereby  the  infallible  means  were  ks 
of  detecting  the  crime,  if  any  was  committti 
and  this  unhappy  pannel  was  deprived  of  tbi 
onU'  infallible  means  of  proving  her  innocesct 

These  are  the  great  lines  of  principal  liMS 
which  the  (mnnel  proposes  to  prove:  DS^ 
others  to  the  same  teudency,  will,  il  U  expcdr 
ed,  come  out  in  leading  the  proof;  airaihi 
flatters  herself,  that  these,  with  an  iotellttetf 
jury,  will  be  effectual  to  detect  the  falshooi  ^ 
this  accusation,  and  to  vindicate  the  cfaaradrf 
and  innocence  of  an  unfortunate  young 


1249] 


Jor  Incest  and  Murder. 


A.  D.  1765. 


[1250 


whose  preient  tUte,  leveral  moDtbs  gone  with 
child,  rtnders  h«r  a  Tery  improper  object 
to  undergo  a  tri»l  of  this  nature;  which,  from 
the  accumulation  of  two  capital  crimes  in  one 
iadictiiient,  and  tlie  great  number  of  witnesses 
given  out  in  list,  besides  those  to  be  adduced 
n>r  her  exculpation,  must  draw  out  to  an  im- 
nio<lerate  leni^th. 

Crosbie,  tor  lieutenant  Patrick  Ogilvie, 
paiiuel,  repeal!  d  liis  signed  defences  ;  and  re- 
Areseiited,  T-aC  the  saiil  lieutenant  Patrick 
0)(iKie,  ha^iDij;  obtained  a  commission  in  the 
regiment,  he  U'liavid  in  the  execution  tlioreof 
ia  a  pniper  and  moOenfiive  maimer ;  and  iieing 
ordereil  along  with  Imh  regiment  to  the  £ast 
Indies,  he  rtmainetl  there  till  U'\»  health  oliliged 
him  to  return  home  ;  when  he  came  to  the 
bouse  of  Eastniilri,  where  his  brother  resided, 
who  was  then  ab^nit  to  be  married  to  Katliarine 
Nairn,  the  other  [uinnel,  and  where  he  conti- 
Daed  for  some  time  uith  an  iuiiffiiisive  cha- 
rmcter,  suitable  to  that  wliichhe  hail  maintained 
in  the  ret;inient  ni  which  he  had  serTe«l,  of 
vbich  there  ai-^  many  officers  ready  to  attest 
the  character  he  held. 

About  the  time  that  the  pannel  Patrirk  Og'd- 
▼ie  returneil  home,  and  adout  the  same  time 
that  the  defunct  Trtoma^  OgiUie  of  Eastmiln 
was  married  to  Katharine^  Nairn,  Alexander 
Ogilfte,  the  third  and  youngest  brother  ot  the 
fiimily,  married  the  dauuhti^r  of  one  Uattray  a 


bmaeif;  and  his  relations,  and  immediate 
connections,  highly  disapproved  of  the  match, 
and  alienated  themselves  from  him  on  tlint  ac- 
count. This  marriage  h.i|]ipened  near  about  the 
time  that  the  deceased  Thomas  Ogilvie  was 
marrieil  to  the  pannel  Katharine  Nairn. 

There  was  one  Anne  Clark,  who  was  related 
to  the  family  of  Eastmiln  by  the  mother's 
aide.  This  woman  had  for  several  years  re- 
aided  as  a  servant  in  a  house  of  dissolute  repu- 
tation in  Edinburgh,  and  which,  as  a  house  of 
baiJ  tame,  had  regularly  been  visited  by  the 
eoiMtables.  Some  months,  at  lea*it  weeks, 
however,  before  the  marriage  of  Alexander 
Ogitvie,she  had  cohabited  with  him  in  the  bame 
roooi,  anil  the  same  liouse  \  and  after  his  mar- 
riage she  had  liveil  in  his  father-in-law's  house. 
Id  consequence  of  all  which  it  may  he  pre- 
aameda  very  particular  intiinacv  had  arisen 
between  her  and  ilie  said  Alexander  Ogilvie. 

The  friends  of  the  family  of  Easiiiii  n  had 
taken  umbrage  at  the  marriage  of  Alexander 
OgiUie  with  the  daughter  ol  a  coniiuon  poner  ; 
he  thought  it  necessary,  therefore,  to  send 
•ome  person  ta  inter  pose  as  a  mediator  with 
that  family  ;  and  the  person  he  made  choice  of 
Waa  Anne  C'lark. 


howerer,  seems  to  have  been  intended.  Thede^ 
ceased  ThomasOgilvie  of  Eastmiln  had  for  manjf 
years  been  subject  to  consumptive  symptoms  ; 
he  had  been  afflicted  with  ulcers  in  his  l)owels, 
which  had  been  discovered  at  the  distance  of 
five  years  before  his  death  ;  ever  after  he  had 
been  in  a  valetudinary  stale ;  and  there  waa 
reason  to  apprehend  he  would  not  be  long^ 
hve<I.  The  relations  of  Mrs.  Ogilvie  in  parti- 
cular had  shewn  some  apprehensions,  that  by 
his  premature  death  the  provisions  in  her  fa- 
vour might  be  rendered  ineffectual.  The  pan- 
nel PatrKJk  Ogihie  was  also  in  a  bad  state  of 
health :  he  had  been  obliged  to  return  frouv 
the  East  Indies,  where  he  had  been  in  service 
with  his  regiment,  on  account  of  his  valetudi- 
nary habit :  and  from  the  situation  which  the  two 
elder  brothers  were  then  in,  there  is  the  greatest 
reason  to  believe,  that  Alexander  Ogilvie  hud  en- 
tertained the  most  sanguine  hopes  of  successioti 
to  the  estate ;  which,  bv  the  marriage  of 
Thomas,  and  the  return  of  Patrick  for  the  re- 
covery of  his  health,  seemed  likely  to  be  dia- 
appointed. 

That  issue  should  not  be  procreated  between 
Thomas  Ogilvie  and  Katharine  Nairn  hia 
wife,  and  that  Patrick  Ogilvie  should  lio 
obliged  to  betake  himself  to  those  inhospitable 
climates  which  he  had  left,  and  whose  incle* 
mencies  had  well  nigh  already  put  an  end  to 
his  life,  seemed  desirably  objects  in  the  eyes  of 


porter,  a  |)erson   greatly  inferior  in   rank  to  ^Alexander  Ogilvie.     To    promote  dissentioui 


therefore,  between  Thomas  Ogilvie  and  hia 
wife,  and  to  alienate  the  mind  of  Patrick  Ogil- 
vie the  pannel,  from  this  country,  seemed  to 
have  been  the  purpose  for  uhich  Anne  Clark 
was  dispatched  from  Edinburgh.  As  a  rela* 
tinn  of  the  family,  shr;  was  receiveil  with  im- 
plicit confidence  at  Eastmiln,  particularly  by 
the  pannels,  who  were  little  aware  what  a 
snare  was  prepared  tor  their  unguarded  con- 
fidence. 

Miss  Clark  had  but  a  short  time  resided  at 
the  houbc  of  Eastmiln,  when  she  made  it  her 
buHJness  to  sow  dinsention  and  animosity  amon«r 
all  the  members  of  the  family.  Hhe  endea- 
voured to  inspire  Mr.  Ogilvie  with  jealousy 
towards  his  wife,  and  distrust  towards  his  bro- 
ther :  and  she  was  but  too  successful  in  her  en- 
deavours ;  Mr.  Ogilvie,  a  sickly  man,  and  too 
susceptible  of  such  impressions,  was  soon  mis« 
led  by  the  artful  Mi^  Clark  into  a  belief  of 
what,  if  he  had  trusted  his  own  judgment,  he 
could  never  have  supposed. 

The  perioil  which  was  chosen  to  insinnata 
these  jealoti*iie8  uas  remarkable.  The  pannel, 
lieutenant  Patrick  Oj^ilvie,  had  somedifi'erencea 
witli  his  elder  brother,  concerning  his  patri- 
mony ;  for  a  dispute  had  (»ccurred  about  the 


Anne  Cliirk  wns  accordingly  dispatched  to  ,  balance  ot  a  bond  of  provision  resting  owing  to 
the  house  of  Eastmiln.  ISlic  wa«  reci  ived,  '  Patrick  Ov:ilvie.  Miss  Claik  laid  hohl  of  that 
without  Muspicion,  as  a  relation  ot  :  lie  family  ;  ■  opportuuity  to  projiagate  her  malicious  al- 
and, in  that  character,  without  eiKjuiry  into  |  kil^^ nances ;  and  lo  the  heal  of  a  iMinvcrsatiun 
her   former   life   and    conversation,  blic    uas     wliuh  niose  concerning  the   balance  of  this 


treated  as  an  equal,  and  a  geniiewoniaii. 

Such  was  the  pretext  of  sending  Aiinr  Clark 
lo  Ibe  bouse  of  Eostuiiln  :  something  deeper, 

VOL.  XTX. 


l»ond  of  pr(»vision,  and  what  Thomas  had  done 
with  it  alter  he  to<ik  it  up  from  the  custodier, 
the  deceased   lint  iniiuoatiedL  V^  %Y^\f^\«^- 


K51] 


5  GEORGE  III.  Trial  ofK.  Nairn  and  P.  OgiMe, 


noo  of  an  improper  interooune  between  tbe 
two  panoels. 

To  miods  already  heated  by  a  dispute  coo- 
ceming  money- mattera,  this  incident  serfed  to 
add  p«ater  warmth.  The  two  brothers  parted 
with  some  animosity,  the  pannel  Patrick  de- 
claring his  intention  ne? er  to  return  to  the  house 
of  Eastmiln. 

The  intention  of  the  pannel  was,  after  ? iiit- 
hug  his  friends  in  the  country,  as  he  had  now 
towrably  reoorered  his  health,  to  return  to  his 
military  service  in  the  East  Indies;  hoping, 
by  means  of  this,  to  avoid  both  the  jealousy  of 
his  brother,  and  the  envy  of  his  other  relations. 
Though  often  solicited,  therefore,  to  return  to 
his  brother's  house,  he  kept  always  at  a  dis- 
tance, from  that  day  when  he  discovered  the 
ftrst  symptom  of  jealousy. 

Mrs.  Ogilvie,  the  other  pannel,  had  for  some 
time  before  this  complained  of  bad  health ;  and 
particularly  she  complained  of  want  of  sleep : 
on  account  of  her  complaints,  she  had  been  in 
■se  to  take  salts  and  laudanum  as  medicines. 
In  the  hearing  of  the  pannel  she  had  expressed 
her  desire  to  have  some  of  these  medicines ; 
and  as  be,  while  at  sea,  had  been  in  use  to  take 
both  on  account  of  his  bad  state  of  health,  and 
in  a  short  time  eipected  one  of  his  sea-chests 
would  arrive,  in  which  he  hsd  a  quantity  of 
both,  he  proffered  to  her  to  send  her  some  lau- 
danum and  salts,  as  soon  as  Uie  trunk  or  chest 
Ihey  were  io  should  be  brought  to  the  country : 
and  she  told  him  she  would  be  obliged  to  him 
for  them,  as  they  were  so  ill  to  be  bad  of  a 
proper  kind  in  that  remote  part  of  the  country. 

After  the  paunel  had  left  tbe  house  of  East- 
miln in  the  manner  above  mentioned,  his  trunk 
or  chest  came  to  hand ;  it  was  brought  from 
Dundee  by  Audrew  Stewart,  merchant  in 
Aly th,  to  hi^  house ;  and  was,  io  his  presence,  in 
the  public  shop,  opened  by  the  pannel ;  who  has 
reason  to  believe,  that  the  said  Andrew  Stewart 
observed  both  the  salts  and  laudanum  that  were 
therein.  But  the  (|uautity  of  laudanum  prov- 
ing very  small,  as  a  great  part  of  it  had  been 
used  during  the  voyage,  the  pannel  found  him- 
self under  the  necessity  of  purchasing  a  small 
quantity  of  laucUnum,  m  order  to  send  as  much 
as  was  requisite  to  Mrs.  Ogilvie.  He  did  ac- 
cordingly buy  a  small  quantity  of  laudanum 
for  this  purpose  ;  which,  together  with  what 
he  already  had,  he  put  into  a  pliial,  and  with 
two  doses  of  salts,  which  in  the  presence  of 
Andrew  Stewart,  he  took  out  of  the  chest  or 
trunk  aforesaid,  put  up,  and  sent  by  the  said 
Andrew  Stewart,  who  was  goinir  on  an  occa- 
sional visit  to  see  Eastmiln  and  Mrs.  Ogilvie. 

What  symptoms  attended  the  deceased  Mr. 
Ogilvie's  last  illness,  the  pannel,  not  having 
been  ut  the  house  of  Eastmiln,  cannot,  from 
his  personal  knowledge,  pretend  to  say.  As 
lar  as  he  has  been  able  to  inform  himself,  how- 
ever, he  cannot  discover,  that  there  is  the  least 
evidence  that  he  die<l  by  poison.  Nor  did  the 
^nuel,  on  any  occasion,  pretend  to  hinder  a 
dissection  of  the  bo<ly,  or  any  other  means  of 
Jitaoferyf  irhether  the  defoncl  bad  died  of 


or  not.  On  the  contrary,  be  urged  and 
insisted,  that  such  trial  should  be  made.  And 
be  having  sent  for  a  surgeon  to  inspect  aad 
open  the  body,  tbe  person  whoa  be  had  dis» 
patched  express  for  that  purpose,  waa  privately 
stopped  by  Alexander  OgilTie,  the  yonngv 
brotner,  who  is  the  person  on  wboee  aim) 
information  be  was  originally  oommittel  14 
prison. 

Such  are  the  material  ftela  which  the  pn* 
nel  apprehends  he  is  calJed  oa  to  explaiD,  la 
vindication  of  his  good  fame:  andtotbeMfteli 
be  subjoms  tbe  followmg  defence,  in  tenoa  rf 
the  statute: 

Ist,  That  the  libel  contains  a  *CainiiWp 
actionum  in  criminalibns ;'  whirh  is  rryrobaad 
in  law. 

Sdly,  That  so  far  as  reUtes  to  the  incest,  thi 
libel  IS  utterly  vague  and  incondusiTe,  bmf 
destitute  of  afi  circumstances  of  time  or  pbee^ 
or  other  requisites  that  can  enable  the  paaad 
to  make  a  pointed  defence;  and  thcrcftn 
ought  not  to  pass  to  the  knowledge  of  an  aisw. 

Sdly,  The  Ubel,  as  far  as  respecU  the  crins 
of  poisoning,  is  utteriy  irrelevant  ^aioail  tU| 
pannel. 

Lockhart^  for  Katharine  Naim^and  Itee,  ftr 
Patrick  Ogilvie. 

Adhering  to  the  defences  severally  propooel 
for  them,  represented.  That  the  ludiLiiaiitf 
charges  the  pannels  with  incest  committed  be- 
twixt them,  in  the  months  of  January  and  JoBi^ 
and  intervening  months,  and  before  the  ]3tl 
day  of  the  said  month  of  June :  that  the  siM 
Katharine  Nairn  and  the  deceased  TbosHS 
Ogilvie  were  not  married  till  the  30th  day  rf 
tbe  said  month  of  January ;  and  to  instrait 
that,  produces  and  oppones  their  contract  sf 
marriage,  dated  the  29tli  of  January,  and  they 
were  married  the  subsequent  day.  And  there- 
fore contended,  that  as  to  the  month  of  Jana- 
ary,  the  indictment  could  not  go  to  proof,  fai» 
Iher  than  as  to  the  last  day  of  that  month. 

2dly,  As  the  deceased  Thomas  Ogilvie  died 
on  the  6th  of  June,  the  time  intervening  W* 
twixt  that  and  the  12th,  were  equally  irrele- 
vant, as  incest  could  not  be  committed  with  lbs 
widow  after  the  death  of  the  husband,  at  Ies4 
to  infer  the  pains  of  law,  by  which,  in  our  nrao* 
tice,  are  generally  meant  the  paina  uf  death. 

Sir  David  Dalrymple,  for  the  prosecutor, 
answered.  That  ^  cumulatio  actionum  crini- 
nalium,'  is  established  in  the  practice  of  tbs 
Justiciary  Court ;  and  in  this  ca<ie  is  partica- 
larly  necessary  and  proper.*    That  it  is  csla- 

*  In  the  Scots  law,  a  very  great  latitude  if 
accumulatins^  one  charge  u|>on  another  ii  s^ 
lowed  to  the  iirosecutor.  Mr.  Hume,  indie- 
xussing  this  subject  (Commentsriea  on  the  Li* 
of  Scotland  res(|)ecting  Trial  for  Crimes,  vaL  l| 
c.  7,  p.  277,)  distributes  this  power  of  cumali- 
tion  into  three  divisions,  under  each  ef  whiffc 
he  cites  many  aiijudged  casca.    «•  In  Iba  lif 


1253] 


Jut  Incest  and  Murder* 


4*  p.  1765. 


[1254 


bliibed  in  the  practice  of  tlie  Justiciary  Court, 
ia  evident  Ky  the  following  examf>le9,  selected 
,  ^m  mauy  iyf  the  same  nature  whicli  occur  iQ 
the  books  of  adJournaL 

e,*'  says  he,  *♦  the  competency  has  Dcver 
disputed,  of  charpngt  in  one  tibel,  any 
■  er  of  criminal  acts,  if  they  are  all  of  one 
rrjmr"  and  Species ,  or  even  of  oue  class  and  g'e- 
ntul  dt^scrintion,  so  as  to  cohere,  in  this  point 
of  tiew^  and  slarop  a  characrier  on  the  pannel, 
as  one  who  is  an  habitual  ofieoder  in  this  sort, 
and  of  whom  noameodraeotis  to  be  expected." 
And  as  to  this,  he  instances  the  union,  in  one 
IJlid,  of  three  acts  of  horse-steallni^,  and  one 
of  polling  and  stealing;  wool ;  the  union  of  the 
charges  of  incest,  many  adulteries,  and  bestia- 
lity. And  nhere  the  o^ences  imputed  to  the 
pan  net  are  all  of  the  same  name  and  species, 
ms  sundry  hifjhway  roliberies,  sundry  acts  of 
(ouse  breaking,  horse- Blealin^  or  pocket-pick- 
Jn^,  he  says,  '*  I  believe  I  may  afhrm,  that 
liiere  is  no  instance  of  the  di$»triDution  of  the 
aeveral  charges  into  separate  libels." 

*•  In  the  second  place,''  continues  he,  "  the 
tike  practice  Is  nalumlty  a  ad  Justly  obserfed 
on  all  th(j!Fe  occasions,  unhappily  too  frequent, 
«i^hpre,  though  the  criminat  acts  be  of  different 
kinds  aud  appeltai ion's,  ^et  Ihey  have  a  natural 
jelation,  and  a  rtependence  on  each  other,  as 
t  of  one  foul  and  nefarious  story,  and  as 
Eivc  steps  in  the  pro|^ess  of  the  pannci 
jh  a  course  of  increasing' ^uilt  into  uliich 
^  indulgence  of  one  criminat  pustsion  has  be- 
Irayed  him,*'  And  under  this  head,  he  cites 
the  p^^sent  case  of  Nairn  and  Og^tkie ;  and 
li«  g-ires  many  other  instances,  iiv  support  of 
Ilia  position  :  thus,  of  the  union  of  charges  of 
jocealand  murder;  of  aduhery  and  murder; 
^9f  robbery  and  murder;  of  adultery,  forgery, 
attempt  to  poison,  and  false  Conspiracy ;  of 
fluodry  acts  of  robbery,  an  attempt  to  rob,  and 
wounding  and  deforcingf  the  officers  of  justice, 
.df  several  acts  of  horse- stealing',  and  having 
Voken  u^o] ;  of  acts  of  breaking  prison  and 
Jkouse- breaking;  of  murder  and  Are- raising 
committed  at  one  time,  assaulting  a  person 
*llf  whose  evidence  the  priNouer  was  afraid, 
tnd  auboruiog  thai  witness  to  bear  false  tes- 
limony. 

He  proceeds,  **  The  latitude  which  is  al- 
lowed the  prosecutor,  is  not,  however^  limited 
lo  ea&rs  of  this  descripticm.  On  the  contrary, 
'Jm  is  sufifered  to  combine  in  ime  libel  seTeral 
^tMirges  which  are  bolli  heterogeneous  in 
themselves,  and  have  little  or  no  counecrion 
with  each  other  in  ihe  particular  case  ;  so  that 
S^MrrsoQ  may  be  tried,  perhaps,  in  one  sitting, 
for  a  murder, u  tluft^  and  a  forgerVt  committed 
^ in  difie reu I  I  to  the  injr  rent 

perttona.    'l  "f  this  pen  .not 

only  the  doiwi;  ul  ju^^tice  as  ex^xidaiou^ly,  and 
with  as  litilc  c\p*ncc  and  trouble  as  may  l>e  lo 
.lb<3  p"f  ■  '  IsK*,  provided  it  be  kept  within 
certain  lur  the  adi^anlage  ofthcpannel 

Itliviveli  j  iLiHi  ue  mijy  {>t  relieved  of  the  long 
«>ii  t  acmeui  and  of  tlio  taxieiy  aud  ajj;itatiou, 


February  16^  1580.  Andrew  Gleneorse  in- 
dicted for  *)ioisoding  his  wife,  and  for  iocesi 
with  his  wife's  mother. 

^ptember  6,  1610.     William  Douglas  of 

■        ■  ■  im 

which  would  attend  the  distribution  of  the  se- 
reral  charges  into  as  many  libels,  and  tbe  sue- 
cesstve  trial  of  tbeae  with  separate  juries  and  al 
different  diets.*'  And  he  nmicea  many  cases, 
selected  from  among  a  much  greater  number^ 
of  such  accumulation  of  heterogeneous  charges. 

As  lo  this  consolidation  of  charges,  Mao- 
kenzie  (Criminals,  part  2,  [tit,  19,  8.7,)  expres- 
ses himself  thus,  *^  A  person  accused  was  not 
obliged  to  answer  of  old,  but  for  one  crime  in 
one  day,  except  there  were  several  purstiers, 
Quoniam  Attachiamtnta^  cap.  65,  by  which,  ac- 
cumulation of  crimes  was  expressly  unlawful, 
*  sed  hoflife  aliler  obtinet ;'  for  now  there  is  ti6- 
thiog  more  ordinary,  than  to  see  five  or  six 
crimes  in  one  summons  or  indictment,  and  to 
see  one  accuser  pursue  several  summonses  ;  and 
yet  seeing  crimes  are  of  so  great  consequence 
to  the  defender,  and  are  of  so  great  intricacy, 
it  appeari  most  unreasonable,  that  a  defender 
should  be  burdened  with  more  than  one  defence 
at  once  ;  and  it  appears,  that  accumulation  of 
crimes  is  iutended,  either  to  leze  the  fame  of 
the  defender,  or  to  distract  him  from  his  de- 
fence/* 

*♦  But,"  says  Mr.  Hume,  "  althougli  il  tbua 
appears,  that  the  accumulation  of  many  crimes 
in  one  libel  is  not  received  as  a  reason  in  our 
practice,  for  throwing  the  process  out  of  court ; 
it  is  not,  however,  to  be  understood,  that  the 
judge  is  therefore  deprived  of  all  discretion  in 
this  matter,  and  mu»t  needs  proceed  to  the 
trial,  in  one  diet,  of  any  number  of  charges 
which  it  shall  please  the  prosecutor  to  lay  be- 
fore him  ;  nor  even  that  tbe  prosecutor  him- 
self, who  has  united  so  maqy  articles  in  his 
dittay,  is  therefore  obliged  to  persist  in  liis  first 
purpose,  of  hazarding  the  whole  of  them  with 
one  asfiixe.  On  the  contrary,  he  may  desist 
for  the  time,  from  as  many  of  them*  as  be 
thinks  ftdvifiable,  and  crave  an  adjournal  of  the 
diet  as  to  the?ie,  while  he  proceeds  with  the 
itomettiate  trial  of  the  others. 

'^  The  Court,  in  like  manner  , whensoever 
they  tioil  that  the  immediate  trial  of  such 
manifold  charges  is  likely  to' prove  oppressivei 
either  to  the  witnesf^es,  the  jury,  or  themselvei  ; 
and  still  more,  if  they  see  cause  to  believe  that 
it  may  be  atteudf!  with  any  disadvnbiage  to 
the  pannel,  by  emliarrassing  liimin  hisdetence« 
or  begetting  prejudices  aifsinst  him  iii  the 
minds  of  his  jury,  or  the  like ;  and  more  es* 
peciilly  still,  if  it  appear,  that  lo  lay  him  nnder 
Chi4  hardship  was  the  pronecutor^s  object  m 
thu<(  acciimulsiing  his  chart^^es: — In  any  of 
these  caseft,  they  have  ii  certainly  in  ihtir 
power  to  divide  or  parcel  out  the  libel,  ami  to 
proceed  in  the  tlrst  mstance  to  the  trial  of  ao 
many  uf  the  artichii  only,  us  may  Ittly  bi^  dta- 
patched  in  a  suigle  dii-t  ;  restrviug  the  others 
til  l>e  tried  afterwards ^  on  the  same  libel  indeed* 
and  with  the  iatuc  list  of  juryrota^  but  vaaa.- 


1S55J  5  GEORGE  lU. 

Lincluden,  slaughter  and-  treasonable 
being  a  landed  man. 

March  30,  1638.  Isobel  Kailtie,  notour 
adultery,  aud  ^urdering  two  children  born  of 
the  adulterous  intercourse. 

March  30,  1638.  Andrew  Harfie,  art  and 
part  of  the  murder  of  Iiiobel  Dalgleish,  and  of 
adultery  with  Helen  Stevenson. 

July  27,  1G4S.  Margaret  Cnnningbara, 
adultery,  and  murder  of  the  child  bom  in  the 
adultery. 

March  12,  1645.  John  Gordon,  bigamy, 
adultery,  and  theU. 

March  28, 1646.  Marg^aret  Thomson,  adul- 
tery, and  forgery. 

December  20,  1649.  James  Wilson,  incest 
Vf'iih  his  wife's  daughter,  and  adultery  with 
another  woman. 

April  21,  1664.  John  Swinton  and  Janet 
Brown,  notour  adultery,  and  murder  of  Swin- 
ton*8  wife. 

other  diet,  or  in  more  than  one,  and  before  a 
special  jury  of  different  persons,  if  they  see 
cause." 

And  under  this  head,  he  mentions  the  case 
6f  David  Young,  1738,  in  which  this  discre- 
tionary power  of  the  Court  had  been  exer- 
cised ;  and  also  the  earlier  case  (December, 
1727,  January,  1728)  *'  of  Walter  Buchannan 
of  Balaiihan,  who  was  accused  in  one  libel,  of 
ten  different  species  of  crime :  namely,  fire- 
raising  ;  attempts  and  threats  to  raise  fire ; 
attempts  to  poison ;  theft  and  depre<lation ; 
reset  of  theft ;  the  harbouring,  outhoundiug, 
and  maintaining  of  thieves  and  robbers ;  soru- 
ing,  and  levyiug  of  black-mail ;  and  the  kill- 
ing, and  eating  of  other  people's  sheep  :  under 
which  different  heads,"  [There  seem  to  lie  more 
than  ten  crimes  charged,  and  I  am  not  suffi- 
ciently acquainted  with  Scoltisti  law,  to  know 
■with  certainty  into  what  *  ten  diff.Tent  species 
of  crime'  they  are  lo  be  distributed,]  **  he  was 
charged  with  a  variety  of  separate  acts,  to  the 
number  of  twenty,  committed  against  sundry 
persons,  from  1720  to  1726,  and  many  of 
tliosc  acts  rii(ht  loosely  laid  in  the  libel.  The 
lords  judged  it  proper  to  restrict  the  trial  to 
those  charges  which  were  most  special,  and  of 
the  highest  order  withal,  Tiz.  the  fire-raising, 
the  attempts  and  threats  to  raise  fire,  and  the 
attempt  to  poison.  The  other  articles  they  re- 
mitted for  trial  with  the  judges  on  the  western 
circuit." 

He  afterwards  considers  whether  several  pri- 
vate parties  having  interest  may  properly  unite 
their  instances  in  tiie  same  libel  against  a  single 
panuel ;  first  i^i  casps  where  the  prosecution  is 
at  the  instance  of  the  lord  advocate,  and  se- 
condly in  cases  where  a  number  of  individuals 
insist  i'or  their  c^yeral  interests,  with  the  con- 
course only  of  the  lord  advocate  for  the  sake 
of  form.  And  he  seems  to  be  of  opinion,  that 
more  prosecutors  than  one,  would  not  l>e  al* 


Trial  ofK.  Nairn  and  P.  OgiMe,  [1S56 

theft.        May  27,  1665.    Mariraret  Hamilton,  adul- 
tery and  murder  of  her  husband. 

April  9.  1670.  Major  Tliomai  Weir,  forai. 
cation,  adultery,  incest,  and  bestiality. 

September  1 2, 1678.  Isobel  Hay,  adoltery, 
and  murder  of  her  adulterous  child. 

January  15,  1694.  Doctor  John  Elfia^ 
Daniel  Nicolson,  and  Marion  Maxwell,  mardcr, 
falsehood,  forgery,  and  notour  adultery. 

November  9.  1702  Margaret  and  Daiii 
My  lea,  incest  and  child-murder. 

November  9, 1703.  Mary  Grahaao,  ineol 
with  her  father,  and  chibl-murder. 

February  21, 1706.  Elisabeth  Hunler,  ia- 
cest  and  adultery. 

As  this  <  comulatio  aetionum  crioiinaliaa' 
is  fully  established  by  practice,  so  in  this  cut 
it  is  particularly  proper  and  Decenary:  the 
two  crimes  charufed,  incest  ami  marder,  we, 
from  the  circumstances  of  the  charge,  inti- 
mately connected ;  and  it  is  propoied  in  n- 
neral  t<i  prove  both  by  the  same  ivitneasea.  Ti 
make  separate  trials  for  each  crime  would  be 
oppressive  to  the  witnesses,  the  jury,  and  the 
parties.  It  is  true,  that  accusations  for  diP 
ferent  crimes  may  be  thrown  into  one  libel,  in 
such  manner  as  to  prove  oppressive.  Wbea- 
ever  this  is  attempted,  the  Court  will  inlcT' 
pose;  but  not  in  order  to  prevent  the  trial  tf 
different  crimes  in  one  libel,  where  notbii^o^ 
pressive  is  meant,  and  where  the  expedincj 
of  the  *  cumulatio  aetionum*  is  obvious.  Asti 
what  is  said,  that  the  charge  for  incest  is  oi- 
intelligible  or  vague,  it  is  answered.  That  it  ii 
laid  in  terms  the  most  unexceptiooabley  in  the 
express  words  of  an  act  of  parliament ;  asi 
surely  the  legislature  must  be  presumed  Ci- 
pable  of  conveying,  by  words,  a  juat  idea  of  the 
crime  which  it  meant  to  punish.  As  to  whu 
is  said,  that  the  lil»el  for  incest  is  vague,  chang- 
ing the  crime  as  committed  in  January  an 
June  1765,  and  the  intervening  luunlha,  it  ii 
answered,  That  in  all  criminal  imlictineou  a 
latitude  of  this  kind  is  adowed  in  practice;  fcr 
witnesses  may  be  distinct  as  to  the  circum- 
stances of  the  crime  charged,  and  yet  may  not 
be  certain  as  to  a  day,  or  even  as  to  a  month. 
Indictments  do  generally  comprehend  the  term 
of  three  months.  In  the  case,  the  kinir's  ad- 
vocate against  Oliphant,  4th  February  1736,  i 
libel  for  a  single  act  of  sodnmy,  bearing  two 
months  in  one  year,  and  two  in  auother,  wii 
held  Kufficiently  articulated  ;  and  in  that  form 
was  remitted  to  the  knowledge  of  an  a«siie. 
When  an  indictment  contains  the  charge  of  a 
crime,  which  m  its  own  nature  is  capable  flf 
fr«>quent  repetition,  as  incest  is,  a  still  gyc*ttr 
latitude  is  allowed.  Thus  in  the  case  of  Forbei 
1758,  tried  for  corrupting  young  giris,  an  in* 
dictment  was  remitted  to  the  knowledge  of  M 
assize,  although  it  bore  that  the  crime  mm 
committed  in  some  one  or  other  of  the  moathi 
from  May  1757,  to  April  1758,  inclusive.  If 
the  pannel  Mrs.  Ogilvie  was  not  married  till  the 
SOth  of  January  1766,  the  charge  of  meffL 


lowed'  to  join  in  one  libel  offences  committed    preceding  that  date,  will  cease  of  courw.    Kit 
tfgmoBi  ibim  separately.  .  J  sball  be  proved  thai  she  and  lieataiut  OgiMi 


Jut  Incest  and  Murder* 

led  ibeir  boflifs  afl^r  the  rteaih  of  Esslmiln, 
V  not  prrhapN  be  Cipital  incest  by  the  aict 
7,  U'bicb  refers  to  the  xvtiith  chuptcr  of 
jticut;  but  ii  will  iipvirthei*?^  \*%  incest 
lubablp  in  law  :  attt)  if  rin  incest  hit^  what 
commuted  after  the  ili^atb  of  Mimimihi 
'♦}  iK»  |)roved,  then  the  jury  will  iiiid  tc- 
Ijtit^ly,  a>nl  die  Court  will  adapt  the  j»iini»ih 
If  to  iheofTenre.  An  to  xvhat  is  said,  tiiat 
Inurder  by  poisoning'  t^  nor  properly  Uid 
\%i  lietitenant  O^lvj*-,  it  is  answered,  Thai 
Contrary  apppur^  from  the  tenor  of  the  in- 
\\,  But  although  this  were  not  the  case, 
be  ii  cbarf^ed  aj%  (^^iUy  art  aud  part  of  that 
)r,  which  is  in  law  a  relevant  iDdictmenl, 
AS  such  must  be  remitted  to  the  knowledge 
•asize.^ 


An  to  the  debate  on  the  relevancy  of  tfte 
[ibe  proper  cjuentions  concernini^  the  re- 
cy  of  a  libel  are  these ;  does  it  in  proper 
,  and  with  all  necessary  circumstances, 
l^e  the  paonel   with  an  offence  which  is 
Hfi  iti  the  law  of  Scotland,  and  does  the  of- 
e  fto  charged   amount   to  the  species  of 
i«  wbicb  is  «tati3d  in  the  major  propositi^'n 
le  libel f]    Mr,  Hume  {1  Comment,  ch,  10, 
I,)  tclU  ui,  that  **■  as  far  as  can  1>e  g^athered 
I  the  face  of  the  records,  the  ancient  cus^ 
%  which  continued  to  be  observed  till   after 
li«|Eitinin|^  of  the  seventeenth  century,  was 
a  spoken  debate,  whereof  the  cleric  took 
H  a  minute,  stating  in  his  own  words»  and 
yra  very  briefly^  the  heads  of  the  several 
^oes^  without  any  dettiil  of  the  arguments 
Uthorittcs  on  either  side«     Jn  the  course  of 
century,  this  course  was  exchanged  for 
more  cumbersotne  and  tedious  one  of  a 
ttxx  pleading,  wherein  the  counsel  on  either 
^  in  presence  of  the  judge,  dictated  at  large 
)e  clerk  of  court,  in  the  form  of  defences, 
Wers,  replies,  and  so  fut  ib,  all  that  occurred 
llicni  as  proper  to  be  said  ou  the  case*     This 
I  and  teihous  style  of  dispuUltonf  which 
k  dri*w  out  to  a  great  Wngth,  was  abolished 
Ibe  statute  of  1G95,  c.  4/*     By  this  act,  it  is, 
fcr    the    Ixftter    reirulating   of   the  justice 
and  facilitating  and  more  sure  orilering 
|}r  form  and  method  of  proce^mes  therein 
statutf  and  ordained,  that  **  in  all  time 
ling,   the  use  and  custom  hitherto  observetl 
ii  court,  ii(  advocutn  or  procurators  their 
*ng,  ond  the  clerks   writing  of   the  de- 
duplies,  thplies,   quadrupties,  and   so 
for  the  defender  and   pursuer,  be  dis* 
:e4l  ami  laid  aside,  and  that  in  place  thereof, 
lie's  advocat  or  other  advocats  or  pro- 
for  the  pursuer,   with  the  idvocats  or 
t%  for  the  defender  or  pannri  debate 
viv&  voce^  and  that  atter  the  said 
voce  is  ended,  then  lime  be  al- 
to  the   lords   and  jndges  of  that  said 
to  ttie  effect  alter  mentioned,  and  that 
)^  *vocat,   or  ad  V  oca  til,  or  procurators 

uer,  do  within  the  apace  of  forty 
hour-.,  ^ivc  into  the  clerk  his  iufornmtion 
iiug  kubscnbed  wilU  to  kmd,  u»d  that 


A.  D.  1765- 

**  The  Lord  Justice  Clerk  and   Cotniiiif 

smners  of  Juslioiary,  hating  considered  thfl 
criminal  indictment  raised  and  pursued  at  thi 
instance  of  Thomas  Miller  of  BarskimmiogJ 

advocats  or  procnnitora  for  the  pannel  ma' 
take  it  up  and  ^\vt  in  their  answeni  in  Hritingfi 
atso  under  their  hands,  within  other  fourty  eight 
hours,  which  information  and  answers  shallbe 
by  the  clerk  recordett  in  the  books  of  AdjuurDsl, 
in  place  of  the  foresaid  written  dispute  lormerlj 
in  use  ;  and  then  at  tbe  advising  the  said  intbr* 
mation  and  answers  shall  be  firfit  read  in  open 
court,  and  if  any  thing  be  found  ne%v  on  either 
Bide,  and  not  noticed  by  the  other  party,  ihm 
parties  or  judges  .shall  point  the  same  to  lh«t 
other  party  concerned,  and  bear  both  parties 
thereon  vivd  voce^  the  clerk  minutitig  in  pre« 
sence  of,  and  at  sight  of  tbe  said  judges  what 
is  so  further  debated,  and  then  the  sard  judges 
shall  proceed  to  the  advising.'^ 

Upon  this  Mr.  Hume  obserres,  ^'  under  thii^ 
ordinance,  a  debate  on  the  relevancy  vivd  voc§^^ 
and  next  a  debate  in  writing,  became  an  ordi* 
nary,  or  rather  a  necessary  part  of  every  cri«, 
tninal  process,  whether  there  were  or  were  not, 
any  room  for  dilTtfrence  of  opinion  respectin^^ 
the  propriety  or  sufficiency  of  tbe  charge. 
And  hence  the  great  load  of  frivolous  objection, 
and  sophistical  argument,  with  which,  a^er 
that  perimt,  the  records  are  filled,  in  the  shapC 
of  informations,  on  cases  where  there  could  ba 
little  doubt  of  the  proper  judgment  to  be  pro< 
oonnced.  At  length,  tbe  statute  20th  Geo.  % 
c.  45,  §  41,  42,  relieved  our  judges  tVom  thit 
tedious  and  unjirofitable  bondage ;  having^ 
ordered  that  (he  det>ate  on  tbe  relevancy  of  thW 
liliel,  if  thera  be  any  thing  to  offer  on  that  head* 
shall  be  coudncied  viv6  voce^  and  be  t  olio  wed 
with  an  immediate  judgment,  if  the  Court  in 
dine  ;  and  that  otherwise,  they  may  order  in- 
formations on  the  case,  for  tlie  better  aud  luori^ 
deliberate  trial  of  tlie  cjuestion/'  \ 

Again  Mr.  Hume  (voL  %  c,  13,  p.  193)^ 
says,  **  A^  far  as  appears  from  the  oldest  book! 
of^^Adjournul,  our  hrst  practice  bad  been  to  re- 
ceive  tbe depoHitiiUis  vivd  i7oci",  without  tnterin^ 
io  Ibe  record  «o  much  as  tbe  names  even  of  th« 
persons  examined.  In  the  trinl  of  John  Max 
well  for  murder,  Feb.  14,  1615,  the  depot^Utonfl 
are  for  the  first  time  set  down  at  larifu,  though 
without  being  signed  by  either  judge  or  wiii 
neijs.  AfYer  that  time,  the  depositions  are  6o 
c^iionalty  taken  notice  of,  but  often  in  a  verj 
irii perfect  form,  and  such  as  move  resembloi 
a  brirl  note  of  the  result  or  general  subsluMH 
of  the  tcNlimony^  than  a  narrative  taken  frou 
Ibe  mouth  of  the  witness*  As.  for  iniitancc,  ii 
the  trial  of  James  Clark,  March  19,  1<331,  fo 
coxrnage  and  other  of!Viice«,  the  record  bear 
this  snd  no  more  with  respect  to  the  two  prin 
cipal  witnesses,  that  they  awore  to  the  verity  i 
thediitay  [Uoberl  I^foobray  and  Robert  Don 
iiworne  itneni  the  sword,  de|K>nes  canformii 
that  the  article  of  the  dittay  red  to  theme  tbei 
anent,  is  trew  in  I  he  aeriT.^  But  even 
sort  of  iuffiioajry  of  iVm  «\\4i^ia>  ^^^ 


1259] 


5  GEORGE  III.  Trial  ofK.  Nairn  and  P.  OgUxne^ 


[ISGO 


ciq.  bii  majesty's  advocate,  for  bif  majesty's 
ioterest,  against  Katharine  Nairn,  widow  of 
the  deoeased  Thomas  0((il?ie  of  Eastmiln,  in 
the  county  of  Forfar,  and  Patrick  Ogilvie,  lien- 
tenant  of  the  89th  ru^ment  of  foot,  brotber- 
german  of  the  said  deceased  Thomas  OgiI?ie, 

Gnels,  with  the  foregoing  debate,  repdl  the 
I  ol{|ections  made  to  the  form  of  the  indict- 
ment ;  and  find  the  said  indictment  relerant  to 
infer  the  pains  of  law :  but  allow  the  pannels 
and  each  of  them  to  prove  all  facts  and  circum- 
fltances  that  Biay  tend  to  their  eicnlpa|ion,  or 
alleviation  of  tneir  guilt;  and  remit  the  pan- 
pels,  with  the  indictment  as  found  relevant,  to 
tlM  knowledge  of  an  assize." 

(S^;ned)       Gilb.  Eixiot,  1.  P.  D.* 

*^  The  Lord  Justice-Clerk  and  Commis- 
eioners  of  Justiciary  eontinue  the  diet  against 
the  said  Katharine  Nairn  and  lieutenant  Pa- 
trick Ogilvie,  pannels,  till  Monday  next,  the 
ISth  instant,  at  seven  o'clock  in  tbe  morning; 
and  ordain  parties,  assizers,  witnesses,  and  all 
ooncerned,  then  lo  attend,  each  under  the  pains 
Af  law ;  and  the  pannels  in  the  mean  time  to 
lie  carried  back  to  prison." 


CouA  JusTiciARijE,  S.  D.  N.  Regis,  (enta  in 
Nova  Sessioois  Domo  de  Edinburgh,  sexto 
die  Augusti,  millesimo  septingentesimo 
sezaffesimo  auinto,  per  honora^les  viros, 
Dommum  Gtlbertum  Elliot  de  Minto,  Ba- 
Tonetum,  Dominum  Justiciarium  Cleri- 
cnm,  Alezandrum  Boswell  de  Auchinleck, 
Andream  Pringle  de  Alerooor,  Henricura 
Home  de  Kames,  Jacobum  Ferguson  de 
Pitfour,  et  €reorgium  Brown  de  Coalston, 
Commissionarioa  Justiciaris,  S.  D.  N. 
Regis. 

Curia  legitime  affirmata. 

The  which  day,  there  was  a  petition  pre- 
sented to  the  saia  lords  in  the  names  of  Katha- 
rine Nairn,  relict  of  the  deceased  Thomas  Ogil- 

frequently  omitted  than  given ;  nor  does  the 
practice  of  iuserting  the  depositions. at  large 
seem  to  have  been  established  till  1661,  or 
thereby.  From  that  time,  though  attended 
with  much  trouble  and  loss  of  time,  it  continued 
to  he  uniformly  observed  till  the  21st  of  Geo. 
3;  when,  by  special  statute,  c.  19,  of  that 
year,  a  dispensation  was  given  in  this  respect, 
as  far  as  related  to  the  trial  of  Crimes,  not  in- 
ferring death  or  demembration,  under  provision 
that  one  of  the  judges  should  sum  up  the  evi- 
dence to  the  jury,  before  inclosing.  The  like 
allowance,  and  qualifieil  with  the  like  provision, 
is,  by  statute  23,  Geo. .'),  c.  45,  extended  to  the 
trial  of  all  crimes ;  under  reservation,  as  in  the 
former  statute,  of  power  to  the  Court  still  to 
proceed  in  the  old  form,  in  any  case  where 
they  shall  judge  it  advisable. 

*  Concerning  the  Interlocutor  of  Relevancy, 
■ee  something  in  the  Case  of  James  Stewart, 
.^  P.  1768y  p.  1|  of  the  pratent  ? olqine. 


vie  of  Eastmiln,  and  lieutenant  Patrick  Ogilvi^ 
brother  to  the  said  Thooaat  Ogilvie;  hnnh^ 
shewing, 

That  the  petitioners  stood  indicted  bHsa 
their  lordships,  at  the  instance  of  his  niyo^ 
advocate,  for  the  alleged  crimes  of  incest,  ari 
accession  to  the  supposed  morder  of  the  aii 
Thomas  Ogilvie. 

That  the  petitioners  had  pleaded  NotGsikf 
to  this  grievous  accusation ;  and  were  oodh 
deni,  that  in  the  course  of  the  trial  their  issi- 
cence  would  be  fully  vindicated  to  the  sifr 
faction  of  the  Court  and  Jury. 

That  as  the  petitioners  did  assert,  and  U 
good  reason  to  believe,  that  that  prosecaliai 
took  its  rise  from  malice,  and  most  &lse  ssi 
injurious  calumnies  raised  and  propagated  ty 
persons,  who,  from  most  unjust  views,  ban 
been  desirous  of  mining  the  petitioiMn ;  itm 
therefore  highly  necessary  aad  just,  that  ii 
petitioners,  who  were  then  to  undergo  that » 
leron  trial  for  their  lives,  should  be  seouel  ■ 
far  aa  possible  against  every  kind  of  inflsit 
and  undue  practice,  that  might,  or  could  k 
used,  upon  witnesses  to  be  addnoed  in  tfat 
cause. 

That,  among  other  miafortunes  ondsr  wUcfc 
the  petitionerslaboured,they  had  been  accmd^ 
by  report,  of  endeavours  to  secrete  naloid 
witnesses  in  that  matter ;  and  though  oossaM 
of  their  innocence  in  that,  as  wellas  in  sAs 
respects,  yet  several  of  the  witnesses  havs, « 
that  or  some  other  account,  been  seestai  ■ 
prisoners  in  the  caatle  of  Edinburgh. 

That,  among  these  witnesses,  was  iisi 
Clark,  designed  daughter  of  the  deceased  Alhs 
Clark,  officer  of  excise,  who  is  now  coafimdii 
the  same  room  with  two  or  more  maid  iti  isWi 
who  were  in  the  house  of  Eastmiln  at  the  lioe 
of  Thomas  Omlvie's  death,  and  who  wooM  k 
most  material  witnesses  for  the  petitioner!  o 
that  cause. 

That  the  petitioners  would  make  it  appor, 
by  uncontestable  evidence,  that  the  said  km 
Clark  was  not  only  a  person  of  the  worst  chi- 
racter  and  disposition,  such  as  rendered  herifl- 
proper  and  inhabile  to  be  received  as  a  witaos; 
but  also,  that  she  had  entertained  and  exprcpeA 
deadly  malice  and  hatred  against  both  the  peti- 
tioners; and  that,  in  pursuance  thereof,  ibe 
had  been  the  author  and  propagator  of  ibefaht 
and  malicious  stories  which  had  given  rite  t* 
the  present  prosecution.  And,  in  fine,  thatiiv 
was  iu  a  combination  to  ruin  the  pannels,  tad, 
as  far  as  she  could,  to  deprive  them  of  tlicir 
lives,  as  well  as  their  reputation. 

That  it  would  occur  to  their  lordships,  tlut 
the  petitioners  were  exposed  to  imminent  da- 
ger  by  the  said  Anne  Clark's  being  constas^ 
confined  in  the  same  room  with  other  mateiii 
witnesses,  whose  sex,  station,  and  inexpericsfll 
though  otherwise  honest  and  well-inclisdL 
miirht  expose  them  to  be  influenced  and  ^ 
judiced  by  the  malicious  endeavours  of  A^ 
artful  woman.  For  theae  reaaona,  the  p^ 
tinners  were  confident,  that  their  kwdiW 
wotUd  forthwith  give  oiden  for  ■spaiitiiig  W 


for  Inced  and  Murder* 

ark  from  tbe  mid  other  wilaei^et,  | 

imyine*  Thai  it  might  jilrase  ibetr 
iljwriih  to  graot  wurrani  t*>  the  de-  | 
lOf  of  ihe  caslle  of  Eiliiiburgh,  or  | 
roper  officer,  to  remoTe  llie  person 

Ann  Clark  from  the  room  in  wliich 
esently  coufined  ;   or  otherwise  to 

T  from  tlie  siid  maid-servants*  and 
te}»arate  from  thera,  or  any  other 
be  adduced  against  tbe  pelilif)neni 

bseot  prosecution.      According;   lo 

HENftT  Dundas.    Bav,  Rae. 

Edinburgh,  6th  AuguMtt  1765, 
^__  iHiller,  esq.  his  majesty's  advo- 
rnt,  That  the  prajer  of  the  within 
granted  ;  but  upon  this  express  con- 
no  pf rson  whatever  hr  admitted  or 
to  any  of  the  said  three  nitnegse^, 
'cueni'e  of  one  or  other  of  ibe  oHi- 
Conrt  of  Justiciary,  which  their 
all  think  proper  lo  appoint. 

(Signed)        Tho.  Mu-lefi. 

4>rd  Justice  Clerk  and  Commis- 
Justifiary  ha?ing  seen  and  cooei- 
Vegoinic  petition^  with  the  consent 
nty*9  advocate  subjoined  thereto, 
to  the  tie pute- governor  of  tbe 
idinbur^h,  or  other  proper  oflRccra, 
iinove  the  said  Anne  Clark  from  the 
!  Aie  and  tbe  other  two  women  he- 
are  presently  staying*  into  some 
in  tne  aaid  caslle,  until  Monday 
y  of  AuifUfit  current ;  and  al»o 
■bofe,  that  care  be  taken  that 
tecess  lo  any  of  tbe  said  three 
wi&t  and  that  time,  except  in  pre- 
bcrt  Auid,  writer,  or  Andrew  Mu- 
r  of  this  court,  or  either  of  ibem. 
ed)        ♦•  CiLB,  Elliot^  I,  I'.  D/* 


HI*,  S,  D,  N.  Regis,  tenta  in 
iioiiis  Domo  de  Edinburgh,  duo- 
die  Auguiiti,  millesimo  scptingen- 
ae7[As^e»imo  quinto,  per  houora- 
,ti}oa  Dtiminum  Hilbertum  Elliot  de 
llaronetum,  Dominum  Justicia- 
Clericum,  Alexandrum  Boswell  de 
lulecki  Andrf^ara  Prin^fe  de  Ale* 
flmncum  Home  de  Kame^f  Jft« 
Tngusao  de  Pitfour,  et  Georgium 
H  deCoaUtou,  Commissttonanoa  Jus- 
ttS.  l>.N.Regb* 

Curia  legittoi^  afSrm&ta. 


me  Nttirn^  widow  of  the  d«ceised 
^'"  -t  Kastmiln,  and 

ijfulenant  of  the  B9th  regf- 

I'tff^rmanof  (he  «rtid  de- 

Koth  prc^^irnt  pii*oner« 

\i        I        !»tirgh ;  pantieU. 

tnd  accused  as  in  tbt  fvni»er  Side- 


A.  a  1765.  [1262 

The  iiitetloctitd?  on  the  tele? ancy  being  read 
over  to  the  pflunels  in  open  court* 

The  lords  proceeded  to  make  choice  of  flkt 
folloxving  persona  to  pass  upon  the  assize  of 
the  bftid  patiQeJs : 

Aiitze. 

Sir  James  Clark  of  Pennyciiik. 

Jolm  llowieson  of  Braebead. 

John  Chribiie  of  Ba  her  ton* 

Adam  Cuniogham  of  Bonnytoun* 

Alexander  Sheriff  of  Craijffeilh. 

l>A?id  Duudas  )'ouoger,  of  Newhalli» 

8ir  Georc^c  SuLtie  of  Balgonie, 

Charles  Hay  of  Hopes* 

William  Ramsay  of  Fre«ton. 

John  Forrest, senior,  mefchant  io  Edinburgh. 

George  Chalmers,  merchant  in  Edinburgh, 

Gavin   Hamilton,  bookseller  in  Edinburgh. 

Archibald  VVoMace,  merchant  in  Edioburgba 

Jolm  Borthwtck  ot'  Cruikstoo, 

Thomas  Brown  of  Braid* 

The  above  Assize  being  all  lawfully  iwom^ 
and  no  objection  to  the  contrary. 

His  AiajesiieU  Advocate  proeeedeil  U>  calltha 
folio wiug  Witjiesses; 

David  Raitray  younger,  in  Camroock,  lo 
the  parish  of  Gienylta,  aged  43,  married, 
purged  of  malice  and  partial  counsel,  sworn, 
Aikd  intermgalc,  depones,  That  he  lives  in  tbe 
neiifbbourhnod  of  Eastmilo,  and  did  hear  it 
talked  in  the  country,  that  Mrs.  Ogilvie  the 
pannel,  and  IJeutenant  Ogilrie  the  other  pan- 
nel,  lived  in  too  familiar  a -way,  and  walked 
out  together  without  otht^rs  in  their  company : 
that  the  deponent  himself  once  saw  them  at 
their  walk,  when  there  was  nobody  with  them, 
when  they  were  leading  other  arm  and  arm, 
and  at  that  time  he  saw  the  paonel,  lieuleuanl 
Ogilvie,  kiss  Mrs.  Ogdvie,  the  other  pannel, 
once :  that  this  hapi)ened  af^er  the  late  Tho« 
maei  Ogilf  ie  of  Easimiln^s  marriage  with  tbe 

flannel,  and  before  his  death  ;  cannot  remem- 
*tr  the  precise  time,  but  there  was  a  storm  oa 
the  ground  iheti :  that  at  the  above-mentioned 
time  the  pinnels  were  walking  near  ibe  house 
of  Eastmtin,  croesmg  the  king's  highway, 
when  the  witness  saw  as  above,  when  he  was 
no  farther  from  them  than  the  fourth  part  of  m 
quarter  of  a  mile ;  and  that  the  pannels  were 
in  a  hollow  way  when  he  saw  lieuteuant  Ogil- 
vie give  the  other  pannel  one  kiss  as  above. 
Causa  icientiic  patct.  And  this  is  truth,  as  he 
shall  answer  to  Gwh 

(Signed)    Oils.  Elliot.     David  Rattsav. 

John  Ijimar^  In  CraJgendeiefa,  m  tbe  uarisli 
of  Glenyllfl,  agid  47,  married,  pureed  ot  ma- 
lice  and  |)aniu)  counsel,  sworn  and  mterrogate, 
depones,  That  be  lives  very  near  Easimito, 
and  hui*  iM'Jird  th^  rt:i«tiiMfr  irf'n|»|£  of  the  croun* 
ir}'   coniinoidv    f  pannf^t    Mr* 

Ogilvie  bkedMiK  ^ hfr  pannel  tod 

well ;  und  that  a  dispute  in  tite  family  of  East- 
milv  sboui  that  lime  aroie^  «h\i^^A^V\v%Tti^  j 


fir  Imest  and  Murder* 


A.  D.  1765. 


[ISOO 


t  ill- will  aad  raalice  against  itie 
Otfilvie^  having  been  dismissed 
llieil ;  on  wbitb  occasiod  blie 
;en(m4>nt  m  itirong  terms,  uqcI 
I  v«'liicli  is  oifereil  to  be  proved 

^alrympte  imf?wcr^,  cm  the  part 

y^s  lidvucale,  Tlial  the  1st  oHjec- 
>e  rt^iirHeit  Tlie  tiicl  is,  that  ihrs 
;iveii  otit  in  list  wiili  others ;  but 
ie  into  a  distant  |»art  of  Scotland, 
iittl  by  the  iiieisensfer  so  soon  as 
e^se^i  Here.  She  wa«  cited  on 
be  hi  re  lli»f  first  iJiet  of  compear- 
«'xecuttoo  did  uol  come  tip  to 
after  thiii  diet.  .  Upnti  its  bdng 
VQS  un  VVednesdny  last  10  the 
n  out  to  the  a|;eat>i  for  ihe  j>an< 
lci72  i»rdni08,  thsit  rbe  li$i  uf 
iteii  out  %ri(h  tbc  iodictineut,  aud 
lere ;  hut  nrj  Idw  requires  that 
ftkuiihl  lie  returofd  iiii(»  C4*urt  U-i 
lie  til  St  diet  of  cuuipenrauce  :  10 
ime,  it  t%'ti4  im|MiNfid»le  tliDt  the 
hi  be  scKifier  jiriKluied,  and  ttie 
ufler  imthuiij  hy  tliisi ;  for  they 
llie  vittues.**  m  hst,  and  they 
•  time  for  this  jKirpose  thao  they 
lait,  if  ihe  exeeulmn  had  hern 
uurjt  hHure  ihe  firHidiet  of  emirtT 
rHevaory  bud  beeu  deterniuied 
tjikeii  at  tiie  same  dit  t, 
eoood  iihjeotifirii  it  uu^^ht  also  to 
Nt»  partjcolar  coiidesceiideiice 
le  of  iiialict:  of  cause  ol  luahce 
md  Ibe  wit Hftss  will  be  |iuro[ed  of 
iiiiiiiils  uf  her  oalh  in  ciMiiMiou 
erehire  the  oljeciiimB  ought  to 
(reeahle  to  the  utHVi^r»:il  pructice 

Ju<!i}ce^C1erk  nod  Commissionerv 
bHvin^  cou>«idered  ibe  furfgoing 
Qti!<iveis  thereto,  rt'|i(  l[  tbe  &b- 
*llow  tbe  witiies«  to  ht  received; 
the  consideration  cd"  the  Couit, 
lol  any  speeial  ex[>re9Si(ms  of 
!  cause  tUereid\  that  may  be  con- 
by  the  pannelt  iti  their*  exculpa- 
lihnilted  or  not. 

i)        CiJLB.    liLUOT,  I.  P.  D.»' 

iclncr  of  ivhich  interlocutor,  Mr* 
rkhtu't,  advocate,  procurator  for 
rolealed  tor  rem  rid  of  law  ;  antl 
rotatories  he  ahull  put  aden^nrda 
ber  witDesses,  doring ,  the  trial, 
eemed  a  paj»ting  frotn  this  pro- 

irtsented  to  the  Court,  That  Ka- 
tbe    wilnesji  befnre^inied, 
^t^hKi'  '   vc\y  ill* 

vvii\dd  be 
id  ill  \\w 
iftb  ;    and 


they  were  appointed  to  be  iDterpreterB,  aoil 
gave  their  oath^  as  buch  dc  fidelL 

And  the  Baid  Kathariue  Camphetlt  a^e<l  ?f 
years,  uncnarried^  solemnly  sworn,  |»urged  of 
malice  aad  partinl  counsel,  and  examined, 
depones,  Tbat  twenty  days  after  the  decea^ted 
Mr.  0(^11  vie  of  Eastmiln's  marriage  with  Ra- 
ihartne  Natrti  one  of  tbe  paonels,  she  was  seiil 
by  the  lady  Glenkllrie^  her  siater,  to  serve  ai 
waaher-woman  al  EaJitmiln :  tluU  the  depo- 
nent staid  in  that  service  for  ten  weeks  :  that 
about  fourteen  days,  to  the  best  uf  her  re« 
membra  nee,  after  she  went  tbere»  the  uaid  de- 
ceased Mr.  Ogihie  went  from  borne,  and,  aa 
she  heard,  tu  Donsinnan :  that  before  Mr* 
G^iUie  went  to  Duoiiinnau,  she  observed  lieu- 
t^nttnt  Oordvic  Ihe  paonel  fretjtiently  kisiiinj^ 
Mrs.  0|(ijv)e  the  paniiel,  and  sbev^iiig'  a  |^' real 
ftiudnesis  lor  ber:  tliat  ihe  depoueut  having 
said  10  beuteiiaut  Oj^ibie  the  panned,  that  hhe 
th'inf^hl  lie  shewed  too  great  l<>ndne«s  ibr  bif 
fiistcr-m^law,  and  that  it  would  not  be  worse  if 
he  shew  ed  less,  Ihe  lieutenant  unswered,  tliiit 
Ilia  brother  de>iJred  him  to  be  imd  of  ber,  to 
keeji  ber  clieerful  in  tha  begtnuiu&r-  Depones^ 
that  ihe  saw  tbe  lieutenant  fretpjently  holding 
the  pannei  Mrs.  Oj/ilvie  in  his  arnvs  when  h© 
was  ktsfiiii^  ber.  Depones,  ibut  when  the  de< 
ceased  Mr.  OiiMe  went  to  Uiiusionan,  ibc  l^*o 
pannels  o4*ntinued  at  Eiiilmihi:  that  the  depo- 
nent iDAd«  up  lietls  for  them  in  tivo  sepiirato 
rooms;  that  Ihe  room  she  made  up  for  j>Jrs. 
Oifdvie  was  immeiliately  above  the  kilcheu, 
where  ibe  depoiieul  i^lept :  ihat  before  the  de- 
ponent went  to  bed,  her  mtslress  calfrd  do^n  to 
her,  if  she  was  not  yet  to  bed  ;  and  thai  she 
Ihoug-lit,  »be  saw  the  demineut  iiave  a  li^^itt  ; 
the  ilepoueni  answered,  she  was  not  yet  y^ono 
to  bed,  but  was  goiu«f  soon  :  that  after  the  de- 
ptpneul  had  gone  to  bed,  sbe  heard  Ihe  |iiinne] 
Mrs.  Ogilvie  utter  these  words,  M  ty  I  Iv  !  and 
Utat  she  heard  the  bed  moving  as  if  sumidiody 
liafi  been  stirrini^  in  it;  ibat  liie  depooeui  upon 
this  became  under  great  terrfir,  but  therrat'ier 
^11  asleep.  That  next  tnorniug  when  sho 
weul  up  stuirs,  she  foiuid  tbe  lieiUenanl^s  bed 
ill  the  vaine  state  that  she  bad  made  it  up  tiie 
night  before,  and  the  bed  no  way  diHCoruposid 
AS  if  one  tiad  lain  into  it.  Depones,  tbnt  soma 
time  before  sbe  went  to  bi'd,  nhe  went  up  to 
Mrs.  Oirilvie's  room,  where  &hc  saw  the  lieu- 
tenant silting  with  her:  that  tlir  "  at 
proposed  lo  meud  the  tire  iu  tiie  I 

uad  »"  r.M.t:,^  .,  i.hMi..  -t,,,vn  there,  loi  , ,  .»* 

neui  lit  by  ber  i  that  Mr^. 

Oifiii  :  ,    ui'iil  to  gii  to  h»*r  ouii 

bed,  tor  lUal  she  ht^il  no  ditlioultv  to  Nlrfp  iu  t% 
hoiiH*  by  herself*  Uv*pone«,  that  llio  vhhw  ri(  b«'r 
being  uitdt  r  tbe  terror  as  thovi*,  wa>i,  thai  ibo 
thought  thif  two  pannrU  wiicftlipn  in  bid  to- 
gether.      Depoues,   that  sbii  jiiadtt   Up    ^ 

OgdvicV  bed  o<'Xt  mornintf,  Hbi«ih  whs s 

loNvd  and  lombSed  I  but  ' 

totvu  dorif   thiM  betAPlI,    1 


i 


1263] 


5  GEORGE  III.  Triai  o/K.  Nairn  and  P.  6gUxie^  [U 


I 


mi  wai  s»iil,  from  «  strspici'oii,  Ihat  the  two 

gantipts  likeil  other  li>o  wflh  that  upon  tins 
Ir.  Oifilvie  ilip  pAiuu'l  leTi  tlie  houst^  of  Esi^t* 
mill},  as  ^iis  r^jiortecl,  ti|KHi  the  above  sii^pi 
cton  ;  aud  it  was  even  saifl  m  the  country,  thai 
the  two  paunels  lovetl  one  aonther  too  well: 
that  the  dpponeiit  liitn^ielt  Icriovts,  tliai  Mr. 
Ogilvie  the  pannel  went  a«nv  Troni  the  house 
of  Ea«>trDiln  about  a  foriniifht,  an  he  thinks,  lip- 
fore  Eastmiln'ii  dpath,  antl  ihe  depfint^ot  9itw 
bun  return  to  the  house  of  Eastniifo  ihe  morn- 
iH|Sf  after  Eai*tiiiilo*s  death :  that  befiire  Mr. 
OglU'te  the  pannel  left  Eastmihi's  house^  Ihe 
deponent  has  often  seen  the  two  panneU  walk- 
ing' arm  in  arm,  aod  their  ariiH  about  each 
other's  neck  :  that  he  hat  seen  them  in  that 
posture  at  their  walk,  e?en  when  Miss  Cfark 
And  the  laird  of  Eastmiln  htni^eif  were  in  com- 
pany, as  well  as  when  there  was  noFiod)*  else 
with  them.  Depones,  that  the  report  of  the 
love  between  the  two  pannels  he  did  not  hear 
in  the  country  till  after  lieutenant  O^nh  ie  had 
lefl  the  house  of  Enstmilo  as  above;  und  titat 
be  never  taw  the  pnunel  Mrs.  Ojjfilvie  till  after 
ber  tnarriai^e  ;  that  since  the  murriiig^e  he  lias 
geen  Dr.  Alexander  Og-ibie,  a  brother  of  East- 
ffinttn^s,  ut  the  house  of  Eastmilo ;  and  that 
Aime  Clark^  a  witness  cited  in  this  trial,  was 
there  before  him^  and  at  the  same  time :  that 
itie  deponent V  house  lies  at  altoot  a  quarter  of 
a  mileV  distance  from  Eastm tin's  house^  on 
the  other  side  of  ihe  river,  from  whence  it  is 
easy  to  see  any  person  who  comes  out  or  goes 
into  the  house  of  Eastnidn,  Causfi  icieniia 
patet.  Aud  this  is  truth,  as  he  shall  answer  to 
God,     And  depones  he  cannot  write« 

(Signed)  Gum.  Eixiot. 

Jama  Barnct^  son  to  Alexander  Bamct  in 
Cammock,  in  ihe  pariih  of  Glenjtls,  a|(ed  15 
yeart«t  unmarried,  purged  of  malice  and  partial 
fouusel,  sworn  and  interrogate.     Dismissed. 

John  Gilloch^  wrif^ht  in  Dahi»keb<jck,  aged 
to  years,  married,  ptirged  of  malice  and  par- 
tial coiitfsel^  swori»,  and  int^rrotj-ate^  depones. 
That,  about  a  fbrlnijrht  after  Knsimiln'^  mar- 
riage^ the  deponent  was  sent  for  to  the  house 
of  Eastmitn  to  put  on  sonne  locLs  sod  brass- 
work  upon  a  drawer  :  timt  accordingly  the  de- 
ponent went  to  the  room  where  the  drawers 
MOihI,  in  which  room  he  saw  the  pnnnel  Mr. 
Ogilfte  lying  in  bed  :  that  when  he  was  so  em- 
ployed, Mr6«  Ogilvte  the  pannel  came  to  the 
room  do<>r  where  the  deponent  was  at  work, 
•he  hn?iug  heard  him  as  he  supposed,  at  work. 
Upon  Mr.  Ogttvie  the  pnnncl  observing  her,  he 
desired  her  to  cotne  in  :  that  after  hat in£r  said 
to  the  deponent,  John,  are  you  begun  ?  she 
went  in  and  asked  Mr.  Ogilvie  the  pannel, 
What!  are  not  you  up  yet?  and  then  she  went 
towards  the  bed -side,  where  stood  a  little  chest, 
upon  which  she  sat  down,  and  then  they  eat 
•omeaweet-brenil  together,  which  had  been  g'ot 
at  a  market.  Depones,  thai  be  observed  ber 
baud  alniut  the  bed-clothes,  just  upon  lieute- 
aint  Oy thicks  breast;  at  which  time  she  said 
to  him,  Vou  are  not  ^loor,  but  pretty  fat ;   but 


did  not  observe  wbellier  h#r  Kao4 
the  bed-clothes,  or  it»ove.     D**|>or»' 
Mrs,  Otfdvie  ihe  p^finel  wms  i^or 
room,  lieutenant   Oiiitvip    lciel(«H]   .., 
clothes  with  bi«  ie*-!,  iiii«t  ilif**w  tltroa  »»i^i 
bis  body;  upon  which  iVI^«i.  O^Otir  ^i^lj 
you  dali*  df>g  !  and  the  tJeiioin  iit  *il  ii»»u 
WW  so  much  of  tij^  amid  I i^u tenant  tJ^iJn 
body,  that  he  the  deponent  ctfitlfl  judge  w||.1 
ther  be  was  a  man  ur  a   woman :    tUM  i 
breakfast,  Mrs,  Ogilvie  came  ic>  wbert  tt^*> 
ponent    was  at  work,   and  qate  broiadfst 
and  lientenanl  Ogilvie  bi*in^  present,  fbt^  I 
hiui  al30  a  dram,   for    be   waji    by   "*^  '  ^ 
dressed.     Depones,  thai  the  week  f 
miln's  death,  the  denoneot  «refil  lo  . 
do  some   work:    tiial  when  he  was  I 
Etiz^beUi  Sturrork,  then  a  serranl  in  tfnii 
niity,  came  to  the  deponeut,  and  ^ked  i 
be  knew  which  way  the  lainj   had  gone? 
said,  He  could  nut  telK     Upon  asking  barv 
she  put  such  a  que&tiou,  she  au^wrre«l, '~ 
lieutenant  OoiUie  was  expected  at 
timt  day, she  could  wish  the  Jaiid  andhei 
not  me«*t*     And  deponea^  that  he  the  dcpi 
saw  Edstmiln  walk  away  from  the  hdOfles 
time  before.     Depones,  that  on  Ihe  eveau 
the  day  lust  mentioned,  as  the  depoo 
returning  from  bis  work,  he  saw  Mn. 
the  paouel    returning  to  Eastmila,  upai  ilfl 
road  thrtt  leads  from  the  Kirk  ton  to  that  { 
and    observed   Mrs.   Ogilvte  atid  Anne  d 
meet  upon  that  road  ;    and  thai  same  ui^^l  I 
saw  Mr.  Ogilvie  the  pannel  atiindiriE:  u  i 
Kirkton,  which  is  not  a  quarter  of  a  nutr  h4 
Eastmiln  :    that,  at  the  time   obore- 
when  tieutenant  Ogilvie  kicked  up  \ 
aud  the  lady  suid  to  him,  Ah  *    yoQ 
the  dej»oneot  does  not  think  she  aaw  i 
tion  the  lieutenanl'^  body  waa  in. 
then  going  nut  of  the  room.     Dep 
while  Mt8«  Ogilvie  was  sittitig^  uj»ou  I 
by  lieutenant  Ogilvie's  bed,  ns.  al>of  c  da 
to^  the  deponent  could  see  Mr.  O^iIfieVi 
from  tlif.  posture  be  was  then   iii.     Bi'iQf  ^ 
lerrogate  for  the  pannel,  depones,  (bit  *^ 
he  saw  Mrift.  Ogihie  the  [mo net  iif^ 
from  the  Krrkton   returntn^   to    L 
above  deponed  on,  and  Anne  Clark 
same  road,  that  they  were  both   wall 
wardt   EaMnuhi,  and    Anne    Clark 
Cuusa  Bcienfiit  pnfet.     And  this  is  tri 
shall  answer  to  God.     (Signed) 

GiLh*  EtxtoT.       Jqum  Gil 

Katharine  CamobeU,  late  servant  to  Ibc^ 
ceased  Thomas  Ogilvie    of    Kisin.iliK  l« ^ 
called;    against  adducing  of 
jected,  that  she  ought  not  to  i> 
witness,  no  execution  being   rtfiurued 
her  QA  hours  before  tlte  diet  of  Cf»fiip 
conform  to  tbe^ forms  of  eouri  cstabfmb 


•  *•  Dttft,    Dclirions,  iiiaaiie«  jrtupid,  I 
ish,  foolish^  giddy,  thoughtlets,  pbyful, 
tiie,  froliesiime,  wanioD***     Jamiciffa'f 
mological  Dictionary* 


^  Incest  and  Mnrden 


A.  D.  1765. 


[1260 


TIiaI  she  betrt  ill-willimd  nmlice  aguinU  the 
Moo^l  Mr^.  Otfikie,  huviiitr  i>een  clifimtsHetl 
a«ir  eemce  fur  ilit'U;  uti  wUirli  occasion  aUe 
ejtpivwwl  re<i^nlmrnl  in  strong  lerins,  and 
fivrtire  r«veci|^e,  which  is.  ofiered  to  be  proved 
imtatttcr. 

Sir  Dnvifl  Daltymph  answered,  on  tbe  part 
of  bis  111  i|e>lv'»  uilvticme,  Tlittt  the  1st  oIijpc- 
Ifiin  oii^lit  to  ht  rt*|ient!d.  TUe  fUct  is,  tlmt  this 
ifiitrit*^^  wuH  ^iveri  oiil  in  list  willi  oltiers ;  btit 
fk%  «tM'  biid  •{iitie  tuton  diMAnt  |iHrl  of  Scoilan<l, 
eoi»y  iu»t  l^e  ciie4l  by  the  \ne*Mvi)if;eT  no  soon  as 
the  ott)»*r  niiiie^seM  were.  She  wtf  cilfd  on 
tbe  SiiturJtiy  before  the  5rst  diet  of  coitiiH.'sr- 
Alice;  hilt  the  eTctrcution  did  uot  come  up  lo 
KdinfMir|;li  Ull  iifter  thnt  iliet.  Vpt^n  iu  l>eing- 
r»'C#'ivi'ttf  it  It  IIS  ou  VVednesday  lost  in  the 
rorf-noou  fifivtn  oiit  to  ihc  agent*  for  Uie  pan* 
nelfi.  The  net  1672  ord:iius«  Ihiit  the  list  of 
witnesses  \h*  ^ni^n  oul  vrtth  tlie  inUictifieol|8nd 
ihii  *ij»8  dmip  h^-re;  hot  no  l»w  rerpiirey  thiit 
the  rxeciiM(M}%  filiouM  Uc  returiifd  iiiio  court  *24 
liouni  helnre  the  tu^l  diet  of  compramoce:  in 
the  pr<[^i'nt  eu^f,  it  witei  impossible  ihut  the 
ei£ecution  cuiihl  be  80(>oe*r  produredf  ami  the 
paniM'h  can  i»uffer  nothntt;  bv  fhiii;  for  they 
ihp  niiTue  of   th<;   witoi'&»  in  hst,  and  they 

fe  hiid  more  time  for  thi«  piirpnse  thin  they 

' 'froiibl  bu«t>   had,  if  the  exrf^ution   hail  been 

g-iwen  out  'iV  hours  before  llie  finn  dift  ofctitirty 

and  I  lien  the  rf^lr^aory   hud  been  determtned 

ftnd  Ihe  priMif  t««keii  at  lUe  same  diet. 

A«  lo  the  aecNMid  objectitm,  it  uw^hi  nUo  to 
ht  rt'peUed.  No  particular  condescendence 
hat  ItftMi  made  of  muliee  or  ciiii^e  of  malice 
at  thiv  time,  niui  the  M^Mnev^i  w\\[  be  [Hir^ed  of 
malice  m  ibe  iioImIs  of  kier  oath  in  common 
fwio  i  and  rh^relore  the  objecuons  onj^lu  to 
he  repel Ifd,  a^retsibk  to  the  uaiverB;i]  practice 
of  Ihe  court. 

•*  The  Lord  Jn«tice-Ct«^rk  nnd  Commlsiionera 

df  JiKticiiiry,   ha vintj^  considered  the  forejjj^oiniii' 

objections  und  answer*  thereto,  r»*p*dl  the  ob- 

[  jeciioiiH,  and  ullow  the  witniHS  lo  bf  r«>ceived  j 

reMervioi^   to  the  considerAtion  of  the  Conrf, 

rhethf-r   or   not    any    special    expreisioas  of 

[  vnalice  and  the  cauiie'there<d',  that  nmy  be  oon- 

rdevceiidi'd  on  by  the  imnneta  id  their  exctilpt- 

itiotii  <ih)tll  i^e  admitted  or  not. 

••  (Signed)      Gild.  Elliot,  1.  P.  D.** 

On   pronoun^'miTr  of  which  interlocutor,  Mr. 
Ah%»»neler  Lih  kbnrl,  odrocatef  procurator  for  I 
f-4ii*^  i»,iiuieU,  pMi tested  for  remrid  of  law  j  ond  , 
\  interroif atones  he  nhall  put  afterwards 
or  other   wilneites,  during  the  trial, 
fciiull  not  be  deemed  a  paiatng  froiQ  iLia  pro^ 
lic^taliou* 

1 1  bein^  represented  to  tbe  Court,  That  Ka- 

tiarinc  Ciimpbi  U,   tbe   witness  befofe>nnnitd, 

111  speak  the  Engh^h  lan|rua|fr  but  very  ill ; 

Ibai  un  interpreter  or  iolerpreltTt  would  be 

•ry   to  itiierpret   mIisiI  xhe  Kaid  in  tbi; 

"  "Erae  UuKunife  into  the  English  ;    and  I 

''■  :v,  writer  iti  Eil)ut»ori(hf  aod  J«>m<^ 

r  to  tbe  sigficii  having  appeared, 


they  were  appointed  to  be  interpretet^,  aiui 
gETe  tbeir  oaths  as  buch  dc  fidili 

And  the  said  Katharine  Camphctl^  aged  3f 
years,  untnarhed,  solemnly  sworn »  purged  of 
malice  aad  )tartiut  counifel,  and  exammed. 
depones,  That  twenty  da^s  after  the  deceaseil 
Mr>  0^ilvie  of  Eastmiln's  marria^re  with  Ki- 
thariue  Nairn  one  of  the  pannels,  she  wus  sent 
by  the  iady  Glenkilrie,  her  sister,  to  serve  at 
washer- %vo man  at  Eustmihi :  ibut  the  deiH*- 
neot  staiil  in  that  service  for  ten  weeku :  that 
about  fourteen  days,  to  the  best  of  her  re* 
inembronce,  after  »be  went  there,  the  said  de- 
ceased Mr.  Ogihie  went  from  home,  and,  ai 
she  heard,  to  flinisitman  ;  that  before  Mr* 
Ogi]%ie  went  to  Dtio^innan,  she  obftert  ed  lien- 
tenant  0;^ilvie  tbe  paunel  frei|Oently  kjssiu*^ 
Mrs.  Ogilvin  the  pannd,  and  iihewin'g  a  great 
toudnesa  for  her :  that  the  deponent  buving 
Muid  to  heutenant  O^iUie  the  pannel,  that  she 
thoni^'bt  he  shewed  too  great  (ond ntiws  tor  bif 
Rster-in-law,  and  that  it  would  not  be  worse  if 
he  ftbewed  less,  the  lieutenant  answeied,  that 
Itis  brother  de^tired  him  to  be  fond  of  hereto 
keep  her  cheerful  in  t ha  beginning.  Depnnej^ 
that  »be  saw  the  lieutenant  fre<juenlly  holding 
the  paunel  Mrs.  Ogilvie  in  bis  artn-i  when  he 
was  ki«««ing  her.  Jlepones,  ihut  when  the  «!e» 
cea^ied  Mr,  U^rit^i^  went  to  Uuusinnan,  ihe  i\} 
pnnuels  ownlinucd  at  Eastmilii:  that  the  de(K 
iient  made  up  iieils  for  them  in  two  aeparn 
rooms:  that  (be  room  she  made  up  for  Mr 
O^itvie  was  iinme^liatety  above  the  kitchef],' 
where  the  depnnent  slept :  that  before  the  de- 
ponent went  to  bed^  her  misiress  called  down  to 
i»er,  if  she  was  not  yet  (o  bed  ;  and  that  she 
thought,  ahe  saw  the  deponent  haveahghti 
the  deponent  answered,  she  was  not  yet  gone 
to  bed,  but  was  going  soon  :  that  sfter  the  de* 

Kcrnent  had  gone  to  bed,  she  heard  the  paunet 
Irs.  Ogilvie  utter  these  wonls,  <)  I)  ?  I\  t  and 
that  she  loard  the  bed  inoritig  as  if  sonnliody 
iiud  bLTo  stirrinu'  iu  it;  that  the  deponent  iipoa 
ibis  became  under  great  terror,  but  thereafter 
ftil  nsleep.  That  uvxi  inorniug  when  »ho 
U'ent  up  stairs,  she  found  the  lieutenant's  betl 
in  the  same  slate  that  she  bad  mude  it  up  the 
ni^bt  bclort^  atul  tbe  bed  no  way  disconi|ni^i'dj 
AS  if  one  itati  lain  into  it.  flepon^-^,  thnl  &ojm 
time  beiore  she  went  to  bed,  she  went  tip 
Blra.  Ogil lie's  room,  where  she  snw  the  lieu 

|iu>n(i!     ^iKn.r     liitli     Lrr-      |hit     tllC     depOUCH 

'  in  the  lady's  loou 
1  there,  for  tbe  depn 
it  by  her:  that  Mr 
«  iieni  to  go  tn  f;rr  f 

bed,  tortbiU  tih«^  h»d  no  dithculty  1 1 
li(tu*e  by  her^elt.  Ucpones,  tliat  the  t 
bijog  undt  r  the  terror  as  shore,  was  tU^t  f>iM 
thought  tbe  two  punnels  were  then  in  bwl  tn 
gctlMT,      llcponeic,   that   she  msde   up  Mr^^ 
Oifitvie*s  bed  u«'\t  moruiiitf*  whtcli  was  mucli 


I 


inmi  tin- a^^|l^■lM^^.'  <- «'i  iiiiii.  u'N,    i'>M<i  ni.'i   i 

jeciure.     U«poiiea|  that  Ibo  k^lvheti  where 


thil 


1267] 


5  GEORGE  m.    »        Trial  qfK.  Nairn  and  P.  OgUviff  [12* 


deponent  slept  had  no  plastered  ceiling,  lo  that 
the  suiallest  noise  in  the  room  abore  could  be 
beard  there.  Depones,  that  there  were  two 
mher  serraot-raaids  at  Eafttmiln  at  that  time, 
to  wit,  Anne  Sampson  and  Elizabeth  Sturrock. 
DepqnefK,  that  she  nerer  heard,  while  she  con- 
tinued in  Eastmiln,  any  circumstances  happen- 
ing between  the  two  pannels,  such  as  have  been 
above  described,  except  one  night  as  before 
mentioned ;  and  remembers  particulariy,  that 
the  other  nights  that  Eastmilo  was  at  Duniin- 
nan,  the  lieutenant's  bed  in  the  morning  had 
tlie  appearance  as  if  it  bad  been  slept  in ;  and 
•o  had  Mrs.  Ogilvie's.  Depones,  that  she 
never  spoke  of  what  she  heard  the  night  above* 
mentioned,  to  the  best  of  her  remembrance, 
till  after  she  had  left  the  house  of  Eastmirn, 
when  she  communicateil  the  same  to  lady 
Glenkilrie,  the  pannel  Mrs.  Ogilvie's  sister. 
De|)ones,  that  the  deponent  constantly  slept  in 
the  kitchien  alone,  while  Eastmiluwas  at  Dun- 
siiinan,  and  all  the  time  she  was  in  the  service. 
Depones,  that,  while  the  deponent  was  in  the 
service  at  Eastmiln,  there  was  a  sister  of  the 
laird's  married  in  his  house;  alWr  which  the 
whole  family  went  to  Dunsinnan,  and  when 
they  returned,  all  of  them,  except  Eastmiln 
and  his  mother,  expressed  dissatisfaction  with 
the  deponent,  but  upon  what  occasion  they 
never  explained  to  her.  And  being  further 
interrogate,  depones,  that  the  motion  she 
beard  in  the  room  above  her,  deponed  to  above, 
•he  theu  tliou<rht  was  the  motion  of  a  man  and 
woman  in  bed  together,  and  such  as  a  husband 
and  wife  hnve  together  ;  and  that  she  would 
have  been  oi'  this  opinion,  thoncrh  she  had  not 
seen  the  lieutenant's  bed  unrufHed  next  morn- 
insr.  And  beinj^  interrogate  by  one  of  the  jury, 
ilej)nne«,  that  slie  always  considered  that  it  was 
An-.'.e  Clark  who  stirred  up  her  mistress  a<:;'ainst 
htfi' the  deponent.  And  lieing  specially  inlor- 
ro<;ate,  depones,  that  the  nii^ht  aforesaid, 
M  hen  she  heard  the  noise  in  the  bed  above  de- 
soril»ed,  she  slept  none  till  towards  the  morning  ; 
tl»eii  fell  asleep,  awakened  again  in  a  fright, 
and  told  the  old  lady  Eastmiln  that  she  was 
under  terror,  but  did  not  explain  the  cause. 
Depones,  that  Anne  Clark  was  not  come  to  the 
fuiiiily  at  the  time  thel  laird  went  to  Dunsinnan, 
and  she  heard  ihe  noise  as  above  in  the  bed. 
And  l)eing  iirterrogate  for  the  pannels,  depones, 
that  Anne  Clark  came  to  Eastmiln  about  a 
toitnight,  to  the  best  of  the  deponent's  remem- 
iM'snce,  after  the  deponent  came  there.  And 
tVirtlier  depones,  upon  the  panuel's  interroga- 
tory, tliatshe  did  not  hear  the  motion  above- 
meiiUoned,  but  at  the  time  above  deponed  to, 
aitiJ  did  not  hear  these  motions  repeated  at  any 
other  period  that  night .  Further  depones,  that 
while*  she  staid  in  the  house,  she  made  all  the 
hcNis  without  the  assisauce  of  any  of  the  other 
servants.  And,  upon  recollection,  depones, 
that  bhe  slept  in  the  kitchen  by  herself  ever 
till  Anne  Clark  came  to  the  boose ;  but  after 
she  came,  Elizabeth  Sturrock  slept  in  the 
kitrlien  with  her  the  deponent.  Depones,  tbet 
.inue  Clark  met  tbe  Uird  m  be  was  going  to 


Dunsinnan,  and  came  to  Eastmiln  two  nighli 
befbre  be  retnmed.  Further  depones,  tbH 
when  site  fonnd  lieotenant  Ogilvie's  bed  in  the 
state  above  described  inr  tbe  nioming,  as  if  ne 
person  had  laid  in  it,  it  was  about  suo-rtsii^ : 
that  she  saw  the  lieutenant  come  down  staiis^ 
and  Mrs.  Ogilvie  tbe  pannel  was  still  in  bed: 
that  she  roaJe  op  Mrs.  Ojgilvie  tbe  pannel'i 
bed  that  same  day,  but  after  dinner :  that  wbca 
Eastmiln  .went  to  Dunsinnan,  to  the  best  of  faer 
remembrance,  be  staid  away  three  oigbts,  aod 
came  home  the  fourth.  And  upon  the  oail 
being  read  oter  to  her,  desired  that  it  might  bs 
marked,  that  what  is  said  of  b«r  baring  mads 
up  Mrs.  O^ilvie's  bed  in  the  morning,  is  a  mil- 
tdce,  and  improperly  taken  down,  for  that  'A 
was  after  diuner  she  made  it  up.  Depones, 
that  she  never  got  any  wages  but  n  pair  of 
shoes  from  Eastmiln :  and  that  when  she  asked 
her  wages,  she  was  told  by  Mrs.  Ogilvie  tbe 
pannel,  in  presence  of  Anne  Clark,  iieutenast 
Ogilvie,  and  the  deceased  Eastmiln,  that  ibe 
was  welt  off  that  she  got  leave  to  go  witbost 
wages ;  and  that  the  deceased  Eastmiln  firf- 
lowed  her,  and  desired  her  to  return,  which  sbs 
did,  and  staid  for  a  day ;  but  that  Mrs.  O^lvie 
next  morning  turned  her  oflf.  Causa  identic 
patet.  And  this  b  truth,  as  she  shall  answer 
to  God.    Aod  depones  she  can  not  write. 

(Signed)        Rob.  Gray, 

Alex.  BosweUi 
James  Frasou 

Anne  Clarke  daughter  to  the  deceaied  AUii 
Clark,  officer  of  excise,  being  called, 


Mr.  Henry  DundaSf  for  the  pannels, 
the  following  objections  to  her  l)eing  receivtd: 

1st,  Tiiut  she  is  a  |>erson  of  an  infamooi 
character,  being  held  and  reputed  to  l>e  a  noto- 
rious liar  and  dissembler,  a  disturber  of  tbs 
peace  of  families  aod  sower  of  dissentioo,  aud 
also  a  common  whore  and  prostitute.* 

Slid,  That  she  has  not  only  been  held  wi 
reputed  such  as  al>ove  described,  hut  it  niU 
be  clearly  proved,  that  she  lived  and  resided  fx 
no  less  than  three  years  and  a  half  in  a  noteJ 
bawdy-house  within  the  city  of  Edinburgh,  u 
a  common  prostitute,  notwithstanding  that  at 
the  same  time  the  said  house  was  frequrotly 
visited  by  the  constables  as  a  house  of  bad  lams, 
and  thatfrequent  disturbances  happeneil  therein, 
to  the  great  ofieuce  and  scandal  of  the  neigh- 
bourhood. 

Srd,  The  said  Anne  Clark  did,  in  eanfe- 
dcracy  with  Alexander  Ogilvie,  brother  toUic 
deceased  Tlioinas  Ogilvie  last  of  Eastmiln,  pub- 
lish and  propagate  false,  scandalous,  and  msli- 


*  See  2  Hume's  Coroi».  Trial  for  Crimea 
pp.  154,  155,  and  Lowe's  Case,  a.  d.  IGSTi 
vol.  12,  p.  551,  of  this  Collection.  See  alM 
vol.  10,  p.  6 13,  vol.  14,  pp.  6S2,  1964,  Ptfake% 
Law  of  Evidence,  part  1,  c.  3,  §  9.     As  to  Iks 


Crimes,  fol.  S,  cap.  IS,  p.  Idl,  ff  Mf . 


Jhr  Incest  and  Murder ^ 

Ciotis  aspersiOM  upon  the  clianirlera  otthe  pnn- 
t)«Js,  reJiitive  to  the  intillers  lifM^U^d.  nnd  diii  eu- 
<IcAinijr  la  make  tlis^ejitioti  and  dirt'erenc«*s  be- 
Iwfen  thepnooel  Mrs,  Oijilvie  and  her  deceased 
liu&biind,     Aadf 

'Uh,  The  Kale]  Anne  Clark  does,  aod  has  en- 
terUifjed  iind  ex|>rea«ed,  no  sundry  occasions 
lieftire  and  since  ihe  decease  of  (he  s«id  Thomas 
jpitvie,  deadly  malice  aod  jtiveteraie  ilUiviJl 
^  fcinst  both  ilie  paniteln,  and  hast  ihreateoed 
NpratedJy  to  di»  att  she  coiiJd  to  hcreayeihem 
oflbeir  lives. 


A*  D*  17t>5* 


[197 


fiir   David  DfthrymiftU^  on  llie  part  of  Im 
ity^s  advocate,   u»«Mered,    That   aH  and 
ry  one  of  the  objections  ou^ht  to  be  repelled  ; 
thai  for  the  reH%ons  tollowin^  : 

With  retppct  to  the  (ji&t,  it  ie.obvioualy  irre- 
levant. No  Biich  ihiiitj  ii»  ever  allowed  in  the 
prsciiee  of  the  jusliriiiry  court,  at  a  general 
f»NH)f  of  character  ;  and  indeed,  %vere  it  aUu^vrdr 
criminal  trials  in  Scotland  wuuld  becunie  iuex- 
iricoble ;  were  the  character  of  each  witness 
to  be  thus  inquired  into,  there  would  be  as 
Diany  separate  trials  as  there  are  %iiiQefsespn»- 
dnceii.  UeKides,  were  ibis  tiew  form  to  be  io- 
trotluccdf  witneKseij  would  be  deterred  froiu  a]^- 
pcarin^  U|ion  citation  given.  Instead  of  beiui; 
cslttd  to  gite  evidence,  they  would  in  effect  be 
called  to  vliitid  an  inqtnry,npon  the  whule  con« 
duct  of  their  lives.  ]f  they  were  to  a)i)it:'ar  and 
undergo  such  a  scrutiny^  they  would  come 
tuucb  worse  prepared  tor  tJieiroefence  than  (he 
parties  lheias<:lves  when  tri«d  for  the  greatest 
crimes.  For  the  parlies  kiif»w  what  i»  charged 
ag'ainiit  lltem^  and  by  what  evidtrnce  it  is  pro- 
posed to  prove  such  charge  ;  they  are  therefore 
enabled  to  prepare  for  ibdr  defence.  Hut  wiU 
Hetses  tieilber  know  what  may  he  charged 
i^aiost  lhein»  nor  by  what  evidence  it  h  pro- 
posed to  prove  such  charge ;  they  are  therefore 
incapable  of  preparing*  for  their  defence.  In- 
deed, by  the  forms  established  in  Scotland,  the 
public  prosecutor  himself  has  no  means  of  con- 
fuliog:  such  a  charge  brought  against  a  witness 


to  be  rejected,  it  follows,  that  (lie  enmes 
charged  couUt  not  be  )irove-d  at  all.  Against 
the  lii^l  wuness,  Katharine  CampbelK  i(  ^as 
objetied,  7'hai  iihe  had  been  turufd  out  of  the 
family  for  sontf  smull  thdt*,  hadvo^ed  re- 
venge, and  entertained  malice  against  Mrs. 
Ogilvi^f  the  pannet.  Against  ihis  witness  it  %ii 
objected.  That  she  is  of  an  abandoned  ehHructer 
and  a  cooiinon  prostitute.  Like  olijeciiont 
might  be  moved  >igaiu8t  every  other  person  of 
the  family  called  as  wiines»es ;  and  thus  it 
would  follaw,  lliat  in  the  hunse  of  Eastnittn, 
the  greatest  crimes  might  he  committed  Htlh 
certain  im|)umty,  because  there  \Mii«  in  tlie 
family  no  witnesses  of  irreproachable  charac- 
ters, VI  ho  might  give  evidence  of  such  crimes. 

Wi  h  re§p€ct  to  the  third  objection^  tt  is  no 
less  irrelevant.  If  Ihe  wuness  did  «preud  such 
r«'|)orts  as  are  mentioned  in  ihc  objection),  IVntQ 
her  proper  knowled:;e  or  just  suspicion  of  Ihe 
troth  uf  Ihe  matters  lilielled^  she  did  nothing 
unlawful;  and  mitil  the  closing  of  the  evi- 
flence,  it  cannot  he  known  wlieiliei  the  reports, 
if  spread  by  her^  were  true  or  taUt*.  It  is 
iherefiire  preinalure  in  the  psunels  in  offer  lo 
prove  Uie  faisehcM»d  (»!' reports  wtiileihein(|iiiry 
subsists,  whether  the  facts  reported  were  true. 

With  respect  to  Uie  fourth  objt-eti(»n  of  deadljf 
malice,  it  in  w  charge  in  its<dl  most  improbable, 
Tiiat  a  witness  would  dehheralelv  resohe  to 
perjure  ht  rself  out  of  malice.  The  panoela 
ought  to  condescend,  not  only  on  the  p-inicutar 
expressions  used,  but  also  on  the  cause  of  (.uch 
deadly  malice.  Were  a  geoenil  proof  of 
malice  expressed  in  word^  to  be  permiiled,  thea 
it  would  be  iu  the  power  of  every  vi  iuie^s  fa- 
voui  iog  the  p»niiet»  to  uica[»acit'rle  hini>eir  irom 
licnnng  evidence  to  facts  which  tnighl  bt*  hurt- 
ful to  the  pannel ;  and  hence  it  is,  that  tUf  ' 
practice  of  the  Court  requires,  that  not  onli 
the  ejtpressions  im|Hjrling  malice  be  prove 
but  that  the  probable  cause  of  such  deudlj 
malice  be  abo  proved. 

*♦  The  Lord  Jowtice-Clerk  and  Commisiione 

of  Justici^trVi  having  considered  the  Ibreiroing 


pr<»«<.t  c«..  of  curtrh^le.  from  cre.l.ble  per-        i,^^^^     ^^  ^„^„  „,^  ^^^  ^„;^   ^.^^^  ^  , 
SODS  to  prove  (he  character  of  ihe  wilnest  ICi  be    -^ ',        • .,      _^    .  i^_  .;  „  ,  *•  *i 


I 


tloblemiNbed  ;  but  be  is  not  at  liberty  to  pro- 
^ice  thern,  heCAUse  he  must  confine  himself  to 
fse  rxAininatiun  of  the  witnesses  whose  names 
mre  ^pven  out  with  the  libel^  aad  to  ibe  evidence 
therein  mentioned. 

With  respect  to  the  second  objection,  Thai 
tt>«  witnesi  is  a  rommon  prostitute,  (&c.  it  citi>« 
not  be  recciveil  in  thi«  c^ase;  fur  the  crimes 
charged  are  occult  crimes,  said  to  have  been 
efim nil  lied  infra  famUiam,  ODd  they  call  Only 
he^  nrovc«l  by  wtioesses  who  resideil  in  the 
Ikniily,  l>e  llifir  clwirader  w  lial  it  will.  The 
vtiness  against  whom  the  oh/ action  is  moved, 
<ficf  r^"  I'  '  ■  !be  ffljiii/y  at  lUi*  prriinl  when  the 
eriri  ^  are  sard  lolmre  itevti  rnmmit* 

itsd,  mn'iir  rtktion   of  ibf  family  of 

iimtn,  was  rcccivaUmi  eni^^riuintti  as  such, 
nd  had  occasion  to  hit  re  (/^j/y  i/itrrcaurse  with 
'-pajittclf,   Uttuciiuect^ggry  sriiurf set  vvere 


examined,  reserving  the  coii)iideruiion  of  thi 
alledgeance,  as  to  the  saiil  Anne  Clark's  bein_ 
lilt;  author  ot  tli«  report  of  the  ftannels'  giiilfy^ 
till  their  eaLruljiaiion  ;  and  also  reserving  lo  iha 
consideration  of  the  Court,  whether  or  not  any 
R  f  '  :  :Tessioo«  of  uiahce,  Uiat  n^ay  be  ctm- 
i!  on  by  the  punneU  hi  their  exculpa- 

Liv>i.,  >«hi..<.  itc  admitted  or  nnt. 

(Signed)       **  a lui  EujoT,  L  P,  D." 

On  pronouncing  of  which  interloculor,  Mr-i 
AJe3tttniler  Lockhart  advncate,  procm-alor  i<ie»^ 
the  panncli,  protested  for  remcid  of  law* 

The  said  Anne  Clark^  daughter  to  ihe  de- 
ceased Allan  Clark,  otiicer  of  excise,  u'^ed  30^ 
and  upwards,  unmarried,  purged  of  mNlice  atir 
partial   CAtunsel,  sworn,   and  inlcrroL*at'^,    de< 
pones,  That  she  was  cousin-german  to  thu  d«-1 
ceased  3Ir,  Dgilvie  of  Bislmiltt,  md  Hcut  It  j 


1271] 


S  GEORGE  III. 


Trial  o/K.  Nairn  and  P.  Ogiivie, 


[1878 


Eastmiln  npon  the  first  day  of  March  last :  that 
her  reasons  for  going  there  were,  not  only  to 
•ee  EHStiiiilu  and  Mrs.  OgiWie  who  were  tlien 
reccnily  married,  and  lieutenant  Ogilrie  who 
vras  then  c»me  from  abroad,  but  also  to  endea- 
vour to  make  up  the  peace  betwixt  that  family 
•nd  their  brother  Alexander,  who  had  entered 
into  a  very  mean  marriage  beluw  the  rank  of 
his  family :  that  after  the  deponent  had  been 
•nme  little  time  at  Eastmiln,  she  came  to  be 
informed,  that  Mrs.  Oirilvie  the  pannel  was 
censured  for  beinur  to<»  familiar  with  the  other 
pannel,  lieutenant  0;;il vie:  that  the  deponent 
informed  Mrs.  Ogiivie  the  pannel  of  what  she 
hafi  thus  heard  ;  and  desired  Mrs.  Ogiivie  to 
Le  upon  her  guard  as  to  her  conduct,  and  to 
abstain  from  the  lieutenant's  company :  that 
notwithstanding  this,  Mrs.  Ogiivie  was  fre- 
43uently  in  a  room  by  herself  with  the  lieute- 
nant. Depones,  That  upon  Sunday  the  19th 
day  of  May  last,  all  the  family  went  to  church, 
excepting  the  two  paniiels  ami  the  deponent ; 
and  that  they  three  staid  together  conversing  in 
the  lower  part  of  the  house;  but  tliereafW  the 
two  pannels  left  the  deponent  in  the  lower  room, 
aud  went  up  stairs  to^eiher  to  the  east  room 
above  stairs,  which  was  the  lieutenant's  room, 
and  immediately  over  head  of  the  room  where 
the  deponent  was  left :  that  she  heard,  by  the 
motion  of  the  feet,  that  both  of  them  had  en- 
tered the  room  above,  and,  as  she  judged,  they 
went  toivards  the  bed  ;  and  there<ifter  the  noi*>e 
of  tlie  feet  ceased  :  tiiat  upon  this  the  deponent, 
in  order  to  discover  what  was  passing,  went  up 
the  stair ;  and  as  the  bed  in  the  lieutenant's 
room  was  an  alcove  bed,  the  back  of  which 
came  to  the  side  of  the  stair,  and  there  was  no- 
thing betwixt  the  bed  and  the  stair,  but  a  piece 
of  plaster  and  the  timber  of  the  bed,  so  that  a 
person  standing  in  the  stair  couhi  hear  distinctly 
M'hat  [iMsseil  in  the  bed  ;  she  stood  and  '.istcned, 
and  from  the  motions  that  she  heard,  is  positive 
that  tlii-y  were  i;i  bed  toi»ether,  and  aluising 
their  botlies  together ;  by  whicli  she  means, 
tliey  «ere  lying  carnally  together.  Depones, 
Tiial  immediatfly  after  this  she  came  up  to  the 
room  v«  here  the  pannels  were,  and  walked  to 
the  end  of  the  room,  without  looking  into  the 
bed :  that  she  then  turned  and  saw  the  lieute- 
nant, one  of  the  pannels,  standing  close  by  the 
side  of  the  bed  buttoning  his  breeches;  and  she 
observed  his  shirt  at  first  out :  that  at  this  time 
the  observed  Mrs.  Ogiivie  was  in  the  same  bed; 
and  that  she  saw  her  clothe^  which  she  had 
then  on,  which  were  a  red  and  white  callico 
bed  gown  and  skirt.  Depones,  That  the  same 
evening  she  told  Mrs.  Ogiivie  the  pannel  what 
slie  hud  seen  and  heard :  that  Mrs.  Ogiivie 
made  no  answer.  Depones,  That  upon  the 
Mondav  the  pnnnels  repeated  the  same  thing, 
V'hich  the  deponent  is  positive  of,  because  she 
saw  them  go  out  of  the  low  room,  and  heard 
them  enter  the  lieutenant's  room,  move  to- 
ifvards  the  bed  ;  and  then  the  deponent  listened 
at  tl)e  suiir,  and  heard  the  same  motions  re- 
peated :  that,  upon  the  Tuesday  and  the  Wed- 
aesda^,  ^be  heard  them  again  reture  together 


to  that  room,  and  mofe  fovrante  the  hed ;  but 
ahe  did  not  any  of  these  two  days  go  to  the 
stair.    Depones,  That  she  told  the  deoeatcd 
Mr.  Ogiivie  of  Eastmiln's  mother,  the  depo- 
nent's aunt,  what  she  had  heard  and  seen ;  thii 
she  told  her  Sunday  night,  Monday  and  Taet- 
day.     Depones,   That  she  heard   aftervaidi 
from  the  deceased  Eastmiln,  that  his  oioihcr 
had  said  to  him,  that  the  pannel,  Mrs.  Ogifvii^ 
was  troublesome  to  the  other  oannel  the  bca* 
tenant :  that,  on  occasion  of  tnis  iDfonDaiioa, 
there  was  ill  blood  and  high  words  between  tin 
two  brothers,  and  at  lengin  Eastmiln,  deceased, 
onlered  the  lieutenant  out  of  his  house ;  aod 
that  this  ha|>pened  npon  the  Thursday  imne* 
diately  sulisequent  to  the  Sunday  afere«ail. 
And  further  depones,  Tliat  upon  the  8onday, 
EaAtinihi,  as  slie  believes,  was  at  Glenkihrie: 
that  the  other  da>s  he  was  at  liome ;  but  as  bs 
went  to  visit  his  workmen  every  morning,  wbci 
the  pannels  went  together  to  the  lienteoaat'l 
room  as  aforesaid,  it  was  at  the  tiroes  that  EsiU 
miln  was  out  with  his  workmen.     DepooMi 
That  lieutenant  Ogiivie  left  the  bouse  of  Eail- 
miln  alM»ut  three  o'clock  after  noon  of  theTkar^ 
day  afitresaid :  that,  upon  his  leaving  it,  lbs 
other  pannel,  Mrs.  Ogiivie,  went  up  to  the  rooai 
which  had  been  his,  and  threw  herself  dovi 
upon  a  bed  in  that  roinn,  different  from  tke 
alcove  beil  above-mentioned  ;  and  there  felt  %> 
tearing  and  crying ;  and  that,  wlien  her  hot* 
banil  came  to  the  room,  she  ordereii  him  to  p 
out  of  it:  that  Easmiitn,  u|»on  that oocasioa, 
told  his  wife,  that  her  conduct  was  improptr, 
and  that  she  would  ruin  her  reputation,  by  is- 
term«*ddling  in  the  differences  betwixt  hioi  asJ 
his  brother.     And  being  further   interrogsie, 
depones,  That  hef^ire  the  Sunday  above-mes- 
tioned,  the  deponent  has  fre<)uently  seen  im* 
proper  familiarities  l>etween  the  two  pannfis; 
particularly  she  has  seen  (hen)  kissing  one  aD9> 
ther,  and  him  having  his  hand  down  her  breiftL 
Depones,  That  when  the  lieutenant  went  utf, 
as  above-mentioned,  and  Mrs.  Ogiivie  wis  u 
the  above  disposition,  Eastmiln,  as  he  had  fre- 
(|nently  upon  former  ocitavions,  when  lie  and 
his  wife  differed  about  the  lieutenant,  expressi^ 
his  desire  to  go  and  leave  his  own  liouw;  and 
the  deponent,  who  at  that  time  saw  little  pms- 
pect  of  hnrmonv  between  them,  pro|>oseil  to 
Mrs.   Ogiivie,  tliat  slie  should  agree  to  thii 
scheme,  which  she  seemed  verv   well  pleskfd 
wiih  ;  but  that  next  day  both  seemed  to  bavt 
changed  their  mind.     And  being  further  inter- 
rogate, depones,    That  about   a  fortnight  ar 
three  weeks  after  the  deponent  went  to  Eai!" 
miln,  the  two  pannels  and  the  deceased  Mr. 
0{:ilvie  of  Eastmiln  having  gone  to  pay  avint 
at  Glenkilrie,  they  allof  them  returned',  aitht 
deponent  thought,  in  very  bad  humfmr ;  andi 
in  particular,  Mrs.  Ogiivie  the  pannel  was  is, 
and  expressed  her  dissatisfactitm  with  her  hai' 
band,  and  said,  If  she  had  a  dose,  she  woril 
give  it  him  ;  but  the  deponent  at  that  time  M 
not  think  Mrs.  Ogiivie  serious  in  what  she  sa^ 
that  thereafter,  but  she  cannot  precisely  if** 
cify  the  times,  Mrs.  Ogilfie  did  fiwjfiiedly 


Jut  JnceH  and  Murder* 

•igiiity  to  the  ilcponetrti  that  she  wa*  resolved 
to  (miiim  litfrhu>h«irKl ;  anil  lolJ  the  rleprinent, 
tili«  iiitetitM  to  ^<^t  {K)(sr>ti  either  Iniui  Mr. 
Roberiioiii  a  merrhniit  ill  Perth,  or  Mra.  Bui^le 
Whci  kequs  a  i»eerl-)»h<i|i  iu  Bcliiibar(|[h,  upon 
fireience  of  poUfiaini;  ruts :  llmt  the  di'tiooeHt, 
•infiin)^  Mm,  Oi*\\fm  intent  aL  I  hut  titne  upon 
tlMt  pnyrcl,  rndeiiTtHirfd  (o  tliverl  her  from  it 
hy  ifHirimtf  lime,  atid  Mi^nitifil^  thul  iC  she  ap- 
nWd  tci  these  |ih>|iI<>  tur  Ui<^  fKtison,  she  ivoiiM 
be  Kfoijf^hi  to  on  untimely  entt ;  hut  that  she 
the  <tr|Mrn«-ut  woitht  go  ht  E<linhur|fh,  and  gel 
m  brother  u(  the  di^puneni^^  vi^ho  liveii  lliere  to 
bo  J  the  jtoiHon  ;  thai  Mr».  O^ilvie  ap|»rr»fed  of 
IH^  depone  nt^s  |»rono*^ul ;  but  cofn|ilained,  that 
thm  depont'Ot  wns  lonaf  in  ptiitin^  it  in  ext»ca- 
tlofi,  anif  ttierefore  propo«ied  to  the  dejionent  to 
#f>eak  of  it  to  lieiiteiiiint  Oi^ilvie  the  pannel,  as 
lie  c"iild  uet  il  mure  e\|>oditiouKJv ;  and  Ihis 
the  dppoiir»nt  dechned  to  do.  De^wnes,  that 
ijpt>n  the  day  that  the  litntinant  was  ptU  from 
the  hotine,  hhe,  Mrs.  Os;ilvie,  toJd  ihedepoDent, 
chat  with  much  diBicuU),,  she  had  prevailed 
tIpoD  lieutenant  tigihie  the  (Kinnel  ti»  under- 
take to  f Ornish  her  with  p<»i«win.  Depo^ies, 
that  iJpi»n  a  Wednesday,  ^htoh  waa  the  day 
immrdmtrty  before  Eiistmdn'a  death,  Mn, 
"pkiethe  pannel  tohl  the  denonent,  thai  she 

_, jA  rrceiTed  a  letter  tlie  ilay  before  from  the 

Vwtenant,  which  was  )»roii|^4it  to  her  hand 
by  Ettsaheth  Sttiirock;  and  in  this  teiter  be 
had  iicf|uainted  hcr^  that  he  had  got  the  poi»oo 
the  leti<rih  of  Alyth,  hut  did  not  chuse  to  (nist 
EliseatM^ih  Nturrock  with  it  i  and  that  he.  would 
#end  It  by  Andrew  Stewarl  hif*  brother- in- la w^ 
uhoni  he  waiis  to  send  with  it  rie^t  day  ;  so  that 
•he  ex  pet- ted  it  there  that  ni^ht.  Depones, 
that,  upon  this  occasion,  bhe  lold  Mrs.  OgUvie, 
•he  nffcr  beheved  it  would  come  to  that  pitoht 
and  exhorted  her  moft  enmestly  agatost  the 
pfOpoAMlf  9ay  tn^fit  >t  would  not  only  brio&f  her  to 
rnisrry,  both  tn  this  world  and  the  next,  but 
would  he  brinjTing  a  di>»grace  upon  the  family 
she  wa<i  corne  of,  and  upon  that  into  which  she 
wan  tuurried  :  thai  upon  this  occasion,  Mrs« 
Oifjlvie  said  to  the  deponent^  to  let  her  alone, 
the  convcrjintion  was  ilitnifreeahte  to  her, 
^the  deponent  knew,  and  Bhe  wa«  determined 
put  her  rcs'ilution  in  exeomion,  whaterer 
might  be  the  event.  Depones,  that  the  reasons 
given  by  Mr4.  Ok^iUie  for  coiuins;  to  this 
•tmnsfe  resolution,  and  for  rcjectiniJ  all  the 
pmpiisals  the  deponent  made  for  her  livings  in 
frirnd^i^hip  with  her  hu^'baiid,  were,  that  she  did 
not  love  hfr  hunhnod,  and  never  coohl  lo?e 
htm  ;  and  that  he  had  used  lieutenant  Osrilvie 
ill  upon  her  account ;  and  aaol,  How  happy 
Odold  they  Itveat  Eastmitn.  if  there  were  none 
thiTe  but  the  henteoMnf «  she,  and  the  deponent !  ; 
That,  Mp«n  t  I  Jim  the  ileponent,  in  re-   I 

moniitrAUfii:  lieae   wiekrd  prnpuHnts,  | 

lold  Mrii,  O^/uMi ,  tiini,  althonfrt)  her  hufibaod  ; 
were  di.*ad,  ftiu'  and  the  heutrnant  could  nnt  en*  i 

"TM'i    r,      Mrs,    Oifdrie    amiwered, 
L^o  and  hve  in  some  of  the 

..:..,.   U*:  had  been.     And  bein|(  fur- 
Ifctr  iBtcrrogate,  depones^  that  vriicti  she  was 

'4 


A,  0.  1765, 

remonstnitingto  Mrs,  O^ilvie  a{?ainst  pot«nn(n|{- 
her  hu«haiid,  she  stM*cittt|y  m^'iiltoned  to  her, 
that  as  she  had  been  i^uihy  of  adultery  and  in- 
ce$>t,  il  W3S  a  dread iul  thinj;  to  crown  all  irilh 
murder.  Depones »  that  upon  the  Wt»ilneft< 
day's  ni<^ht  aibresjiid,  immediately  preceding 
Easrinih^s  death,  Alri:<,  O^tlvte  ihepannelf  tnu 
the  deponent  went  out  to^etheri  Mrs.  0).aUie 
having- expressed  her  impatience  for  Andrew 
Stewart's  arrital :  thul  they  did  not  mpet  vtrih 
Andrew  Htewart ;  but  when  they  reriirried  to 
the  house,  touorl  him  sittings  with  the  old  Itify 
Ka^lmiln,  he  haviof^  ciMne  in  anolher  ways 
that  Mrs.  Oi{ilfie  the  pi«onel  imuiediHtely  car- 
ried Andrew  Hlewart  up  *tN»ra  wMh  her,  who 
staid  with  her  Lbont  hntf  an  hour,  and  theo 
came  down  »tair!«  by  himself:  thut  the  depo- 
nent ub'ked  him,  if  he  had  brou^^ht  any  thm^ 
with  him?  He  answered.  Nothing,  at  ^y^t» 
hirl^  upon  her  pressing,  and  snjioif^  She  was 
sure  he  had  brnug'ht  soniethinif  with  him,  he 
then  said  he  had  brought  some  drujjs  for  Mrs, 
Oi^ilvte,  which,  at  that  tinte,  be  described  as 
bein^  in  two  pbial  glasses  ;  that  the  deponent, 
oti  this  occaniou  said,  they  were  black  drugfs  j 
that  Mrs.  Oj^ilrie  the  ftonoel  having  come 
down  Starrs  tery  soon  after,  the  deponent  did 
not  get  an  opportunity  at  that  tin^e  to  explain 
10  Andrew  Stewart  wliat  she  meant  by  calbncf 
them  block  druj;** ;  but  Mrs,  Og^dfie  and 
Andrew  Htewart  havin}^  (fone  out  towards  the 
Kirktou,  and  left  the  deponent  and  her  aunt 
lady  Eastmiln  by  them»ieUes,  the  deponent 
told  her  aunr,  that  she  believed  what  Andrew 
Stewart  had  brought  was  poi<ion  ;  for  that  Mrs. 
Ofifilvie  the  pannel  had  told  her,  the  depofient^ 
that  Andrew  Htewart  was  to  brini^  tbe  poison. 
Depones^   that    Ihe    oht    Imly    Eaf^tnnfn    was 

£  resent  wheo  the  depomnt  said  to  Andrew 
tewart,  they  were  black  drug's,  as  ahore* 
tnentiotied  i  that  the  deponent,  after  act^imint* 
in£r  the  old  lady  as  abotre,  asked  her,  if  she 
shonhl  hi  form  the  deceased  Mr.  Og'iUie  of 
Eastmiln  of  the  particulars?  That  the  old  lady 
auid  it  would  be  improper  j  for  ihut  Mrs, 
Oii^ilvic  would  persuade  her  husband,  that  it 
was  but  laudanum  for  her  own  use,  and  would 
resent  it  against  the  deponent :  and  thai  the 
only  methoil  Ihut  occurred  to  her  proper  was, 
that  both  she  and  the  deponeui  jiliouM  cauiton 
Eastmiln  against  tnkiug  any  thing^  (i'^t)  hit 
wife  in  pririite.  Depones^  that  after  this  she 
went  to  the  Ktrkton  with  a  view  of  beui^  ad- 
^iied  by  the  inun»iier,  what  wan  lit  lobe  done  in 
such  a  case;  hut  had  the  mmlonune  to  n^isa 
liim,  he  not  bein^  at  home,  the  di^or  locked, 
but  the  key  in  it:  that  Ejistmiln^  and  hi»  wife 
the  pannrl,  and  Andrew  Hie^ari,  were  all  in 
ihe  Kirkton  at  that  lime,  in  the  house  of 
FtTifMn  Fertfuson,  i*- tenant  of  Enfcimiln*",  whe 
kee|is  H  public  houwe  i  that  thi'>  liaviri|;  come 
aviay  from  the  Kiikton,  Mrs.  Ot^dvle  and 
A  mire  w  ^»te«lart  w  allied  on  like  a  pifftol-*ihot 
l>efore  Eaxtmiln  ;  and  thtt  deponent  joineil 
Eastmiln,  and  M^'nified  to  him,  that  it  would 
he  fery  proper  and  neresaary  for  him  to  h'are 
kia  own  hmisey  for  that  she  belie  red  hia  Ut« 


I 
I 


1275] 


S  GEORGE  III. 


TtM  tfK.  ytdrn  and  P.  Ogilvie, 


[1876 


was  in  ilanfzer;  but  did  not  tell  him,  that 
ahe  hunptcit-d  the  daD((er  was  from  bia  owo 
wife :  that  Eastrniln  said,  lie  could  nnt  lem¥e 
home  at  that  time,  because  of  hia  labourers. 
Khe  barinjc  fii^^nitied,  that  there  was  dani^er  in 
a  delay,  Kantmiln  ansvvereil,  He  understood 
what  hhe  meant ;  but  that  he  was  determined 
he  would  take  ootbini^  slie  |^re  him,  and  so 
would  put  it  out  of  her  |>ower.  Depones,  that 
her  aunt,  that  same  night,  both  before  and  after 
«up|fer,  loid  her,  that  she  likewise  had  cau- 
tioned Kastmiln  to  take  nothing  from  his  wife, 
liepones,  that  the  aame  evening  she  informed 
Andrew  Stewart,  that  she  lielierAl  it  was  poison 
he  had  brought,  and  told  him  her  reasons  for 
iK'lieving  so ;  that  Aedrew  Stewart  appeared  td 
Itive  rretlit  to  whut  the  deponent  said.  After 
Kasiiiiihi  and  hiK  wita  bad  g«iiie  vp  stairs  tol»ed, 
Au'lrcM  St«'Uiirr,  the  old  lady  the  deponent's 
auiit,  and  ih'  !-.|»onent,  had  a  long  conversa- 
tinn  litiw  th  <iisappoint  Mrs. Ogilvie's  design; 
and  particularly,  fihc  miiembers,t hilt  Andrew 
}jiiwait  proposed,  thnt  as  he  knew  the  drawer 
wlif  <in  she  had  pui  the  things  that  he  bad 
hi<Mii;lit  her,  mean?  sliouldlie  used  in  the  nitrht 
ti'i  ••  to  gnt  Mrs.  0:4d?ie's  keys  to  open  the 
ilruwfr,  and  take  mu  the  things  ;  or,  if  that 
would  not  answir,  that  they  might  get  a 
tradesman  next  flay,  or  as  soon  as  they  cuiild 
get  an  opimrtiiniiy,  to  open  the  back  of  the 
rheht  of  drawers,  and  so  get  into  the  par- 
ticular drawer  to  get  out  the  things.  Oe- 
|>oiics,  that  Mrs.  Ogilvie,  as  Andrew  Stewart 
tolfl  that  night,  received  a  letter  fnini  lieu- 
tenant Ogilvie,  which  he  Andrew  Stewart 
brought  along  with  him  ;  and  that  the  lieute- 
nant had  desired  him  to  deliver  that  letter 
with  the  drngs  privately  to  Mrs.  Ogilvie  the 
|):innel.  DcponeN,  that  nIic  iievrrinsiniiated  to 
KaHtmiln  any  suspicionN  she  had  of  his  life 
being  in  danger,  till  that  night  ahovo-inen- 
tionrd,  whirh  was  the  one  iinmcdiiitely  |»re* 
ceding  hiK  death  ;  hut  thai  h\\v  frequently  tuld 
tlio  old  lady  his  titotlier  of  the  danger  she  ap- 
prehended KaKtiniln  was  in,  from  the  disposi- 
tion liiM  wife  appeared  to  he  in  ;  and  the  old 
lady  said,  that  bhe  likewise  was  NU*>picious,  he- 
rauKC  she  ihon^ht  her  daughter-in-law  would 
Htick  at  nothing  :  hut  that  the  deponent  did  not 
explain  to  the  old  lady  the  aflair  of  the  poison, 
till  after  the  lieutenant  was  turned  away  from 
Kastmiln,  when  she  ad? ised  her  to  warn  her 
son  of  his  danger.  And  being  further  interro- 
gate, depones,  that  from  the  time  that  the  de- 
ponent went  to  his  house  in  March  last,  East- 
iiiiln  appeared  to  be  under  great  distress  of 
mind  on  account  of  the  difference  between  him 
and  his  wife ;  but  she  did  not  hear  him  com- 
plain of  anv  bodily  indisposition,  excepting 
sometimes  of  a  pain  in  his  breast,  which  she 
thinks  happened  twice;  but  he  never  kept  bis 
bed  one  day,  nor  even  an  hour  extraordinary. 
That  the  day  immediately  before  his  death, 
there  had  been  a  quarrel  between  him  and  his 
wife  ;  and  the  quarrel  was,  that  Mrs.  Ogilvie 
had  given  the  deponent  some  cambric  to  make 
iiUo  rui&et  for  the  Jicutenanty  whO|  fbe  said, 


bad  sent  the  cambric  to  her,  Mn.  Oeilvie; 
whereas  £astmiln  said,  a  cbapman  bad  come 
that  day  to  the  house,  and  craved  him  for  tbt 
price  of^it,  and  that  he  bad  refused  to  pij 
It:    that  upon  tbi»  quarrel  Eastmiin  bad  goat 
out  10  bad  homoor,  and,  as  the  depooeot  tluab 
wiihoot  his  breakfast,  and  the  depooeot  bcari, 
that  be  spent  the  day  amoog  his  teoaou  em 
the  hill;    that  be  returned  io  the  €renin|f ,  aid 
said  he  was  not  well,  and  went  to  bed  withool 
supper.      Depones,  that  Eastmilo  never  had 
at  this  time,  or  at  an^  time,  so  far  at  sbs 
knows,  aoj  violeot  vomitings,  purging,  or  god- 
Tulsions ;    and,  so  fiir  ss  she  knows,  nobodj 
else  ever  heard  of  any  such  thing.     Depooei^ 
that  next  morning  Mnc.  O^vie  the  paoMl 
made  the  tea  for  breakfast  somewhat  earlier 
than  usual:    that  the  deponent  having  ooow 
into  the  breakfasting  room,  heard  Mrs.  Ogil- 
vie the  pannd  say,  that  the  laird  and  Elizabeth 
Sturmck  were  well  off  that  morning,  for  tbcy 
had  got  the  first  of  the  tea :  that  the  deponest 
before  this  bad  been  sitting  w  itii  her  face  t* 
the  window,  and  ber  back  to  the  table,  but  did 
not  take  any  notice  what  Mrs.  Ogilvie  had  ben 
doing;     hot  upon  Mrs.  Ogilvie's  ezpressifl^ 
herself  as  above,  turned   about  and    asked. 
What!  has  the  laird  got  tea?  And  Mrs.  Ogil- 
vie answereil,  He  had ;   upon  which  the  de- 
ponent said  nothing.    Depones,  that  she  dga 
not  know  the  reason  why  Mr.  Ogilvie  had  ait 
come  down  to  breakfast  that  morning.     De- 
pones, that  she  said   to  the  old  lady,  as  sbi 
thinks,  that  she  was  frightened  about  the  tea 
the  laird  had  got;  but  said  nothing  to  Andrew 
Stewart  of  it,  and  this  she  means  of  the  tine 
before  the  laird  was  taken  ill.      Depones,  that 
Mrs.  Ogilvie  the  pannel,  during  the  time  of 
breakfast,  went  out  of  the  room  twice  or  tbrioe, 
and  at  length  came  in,  and  told  the  laird  wu 
taken  very  ill :    that  the  deponont  overheard 
a  report  among  the  servants,  that  he  was  trou- 
bled with  a  purging  and  a  vomiting :    that  the 
old  lady  desired  the  deponent  to  go  up  and  sM 
Eastmiin,  which  she  did  in  about  half  an  hour 
after  breakfast :   that  she  continue<l  very  short 
while  in  the  room,  she  looked  to  him,  and  be 
appeared  to  her  to  he  in  a  dying  conditiun: 
that  she  came  off  very  soon,  crying ;    Mrs. 
Ogilvie  the  pannel  met  her,  and  askeil  berif 
she  was  daftl^   That  the  de{)onent  answered,  is 
way  of  surprise  or  derision,   O !   av  !-  and  Mr. 
Ogilvie  is  dying.     Depones,  that  after  she  had 
come  down  stairs,  and  staid  half  an  hour  or  lo, 
the  old  hdy  desired  her  lo  go  up  stairs  to  ber 
sou  Eastmilu,  to  keep  him  from  these  two 
women;    by  which  the  deponent  uuderstood 
she  meant  Mrs.  Ogilvie  and  Elizabeth  Star- 
rock,  who  were  then  sitting  with  him  :  that  tbi 
deponent  accordingly  went  up  stairs  before 
mid-day,  as  she  thinks,  and  continued  with 
bim  till  his  death,  which  happened  betwiit 
11  and  12  o'clock  that  night:     that  East- 
miln,  as  the  deponent  has  above  expressed 
was  seized,  ss  she    heard,  with   a  purgiif 
and  vomiting:  that  sfUr  she  went  up  naira  li 
him,  ho  had  for  some  tini«  soiiie  pa^pnb  M 


1277] 


fxiT  Tneest  and  Murder, 


1t<H  netr  so  ? ioleat  as  she  had  been  infarined 
U  m^%  before*  thnl  lie  had  a  most  severe  yo- 
nrting,  ami  catletl  al%i^ajs  lo  ^ve  him  a  colil 
ilriiik ;  that  he  ilrank  great  (]uaiitiiie»  of  cold 
tvaterr  thut  the  ileponeol  hariog  mixed  it  wiih 
milk,  he  cotiipljiined  ftf  that,  and  insisted  to 
liave  euM  wnter  by  itself,  and  then  drank  some 
■mall  ale  ;  but  upon  his  bf other -iii- la *¥  i»len- 
kilrie'fl  cominfr  (heret  which  mm  id  the  evening* 
when  it  Mra»  ahno!»t  dark,  he  dissuaded  him 
fnini  (iikrn^  more  ale; » that  the  de|ionent  tried 
htm  once  with  a  kIusi  of  wiue  and  a  iiiece  of 
•Ui^ar  in  it,  which  he  drunk »  and  fur  aoout  an 
hour  oAer  iakin|^  it  vomited  none:  that  the 
iteponeftt  g'ot  the  gla!iS  of  wine  frum  Mrs. 
OpUie  the  pnnnel :  that  Eafitmila  immedrale- 
*  [tiXi^t  taking  the  water  or  the  ale  threw  it  up 
i'mi  but  after  he  had  drunk  the  glass  of 
ne,  ns  aforesaid,  there  was  an  intcrmisstion 
of  the  votiiitrnL^  fur  about  an  hour;  and 
thnngh  lif  drank  both  ivatcr  and  ale  after  that, 
he  kept  it  loiif^er  liiaii  before.  Depones,  that 
Kastmitn  complained  of  a  burning  at  his  heart, 
as  he  called  it ;  and  complained  bitter! y  of 
pairift  in  the  brawns  of  his  le|^,  and  said  they 
wouK)  rent,  m\\\  desired  the  deponent  lo  bind 
them  up  far  him^  which  the. deponent  accord- 
if>f{1y  did  t  ilmt  there  was  a  severe  heaving 
at  hb  breast  mid  a  strong  caw^  and  he  cried 
to  keep  open  the  windows  to  give  htm 
lirealh :  that  be  \\ti%  con«tADt1y  in  motion, 
lit'  .  '^  ficndf  his  Ici^jirf  and  his  arms  :  that 
all  I  in  the  afternoon  he  did  not  speak 

yUv}.  i^dHii  %\\e  snppoMMl  wa9  itwinj;  ti)  hi^ 
toni;ue  havin;;  swelled  ;  but  she  did  not  see  his 
toujfiie  :  that  ahnut  au  houvi  or  au  hour  and  a 
halt  before  his  death ^  he  had  an  intermission  of 
the  vomiting  ;  but  tliat  at  lentrth  he  was  aflfsiu 
•ttncked  wirii  a  most  severe  press  of  vomilintf, 
ftfter  whit'h  he  fell  back  upon  the  depatienti 
wtm  was  sitUui2f  behind  him  in  the  bed  sup- 
pwtinir  him,  and  expired.  Depones,  that  she 
beiird  Eafimiln  durui;j^  his  di<;trf!sR  say  tn  James 
Millfim  (uj»  tfitanl  in  the  mill,  who  was  niteud* 
mjf  himf  tbni  it  was  ctlher  i^trong  poison,  or 
rank  poison,  (bat  was  killing  him.  Depones, 
Ittat  before  one  o^clock  she  heard  the  old  lady 
£a(iiiniln  say  tn  Eubtiiuln,  that  he  had  broke 
hia  |tiorTii«e  it>  her  in  takintf  any  tbin|c^  ln)m  his 
wife  t  that  he  answercilj  It  is  too  Irfte  now,  [ 
inn*^'  r  "  '-Mt  she  forced  it  on  me  :  that  at  this  i 
c  I  there  were  none  present  but  the  i 

«Ul  ..i  :,    ,1  lit*'  ti.-.w.ttfiit,     Depones,  that  she  \ 
Icoowv  notli^i  tiding  for  any  sui-^eon 

to  attend  up*  ui,  further  than  thit  i^he 

li«r»elf  Kent  Annie  iinbortHon,  one  of  the  B«r- 
tifiKi  of  I  he  h»ni^,  lo  tell  Andrew  Htewurt, 
mho  she  undei^toml  hsd  then  ;;one  off  for 
Jllyih,  ifi  desire  Mr.  Meik  lhi'«ur^eon  at  that 
pi"  ')»e  toHatmilu;  and  that  this  hap- 

pf  tjenorui  *>f  (h«*  diiy  nn  which  llsst 

niilh  <livii;    ihAt    '  '      before  she  aent  i»flf 

Annie  llnlHTt^ini  »i-  heard  «ome  cou* 

Vt  f     ■  '    i  on ;    and 

t^  )  the  old 

\tkh]y     Mir^     114  1.      i»i^M>'4    wt      i^,  j/i|m*M«£1,     thftt 

•Her  Eiisttnilu^s  death,  ahe  was  tohi  by  James 


m 


A.D.  i7«5,  [127» 

Millafn,  thit  he  had  ffot  orders  rmm  Mr«, 
Og^itf  ie  the  pannel,  to  take  a  horse  and  go  an4j 
acquaint  lieutenant  Og^itvie  of  his  brother'l 
death ;  hut  that  thet^eafter  it  was  concerted^ 
that  as  Gleokilrie,  ia  whose  house  ihe  licii« 
tenant  then  slak!,  was  going  home  from  East 
miln,  that  he  should  acquaint  the  lieutcnautd 
that  next  morning  tlie  lieutenant  arrived  abou' 
six  o'clock,  as  she  thinki<  Depones,  that  ttti 
day  on  which  Esstmiln  died,  Mrs.  0|^ilvte  th 
pannel  came  lu  for  a  very  little  to  him  in  th 
foreoooD  :  that  thereafter  she  freqaently  prO^ 
posed  to  come  back  to  him,  if  the  deponent 
were  dismiased  ;  but  East  miln  would  not  a^i  e« 
lo  this,  and  she  came  no  more  near  him.  And 
bein^^  further  interrotratc,  depones,  that  tha 
moiQing  after  Es^timhrf*  ileatii,  she  told  tha 
lieutenant  the  panuel,  that  she  knew  the  whole 
affair  of  the  poison,  and  asked  him  >k>w  ha 
L'outd  send  it  to  >lrs.  Ogilvie  i'  That  the  lieute* 
nant  a^ipeared  lo  be  under  great  concern  and 
confusion,  and  toId»  that  suppose  he  had  sent 
it  to  her,  he  did  not  think  she  had  so  barbarous 
a  heart  as  to  give  it.  And  three  missive  lettera 
Djnrked  by  the  deponent  and  the  lord  examt* 
iiator's  subscription,  being  shewn  to  her,  dfl 
pones,  that  the  letter  whicn  begius  D^  Captaio^^ 
and  is  not  subscribed,  ami  has  no  date,  and  an* 
other  letter  which  begins  D*"  B%  and  is  dated 
Citenkilry,  Weensday,  and  signed  Ketty 
Nairn,  are  both  very  like  Mrs.  Ogilvie  tha 
pannePa  writintf,  but  the  first  she  is  sure  is  her 
writing;  find  the  third  letter,  nhich  bears  date 
;it  Gluukilry*  and  uddresned  to  Thomas  Ogilvie, 
eNcj.  of  Easimilo,  depones,  tliat  ixhe  does  ooc 
know  whose  hand- writing  it  is.  Deponen, 
that  she  did  not,  either  the  duy  of  Eastmiln'a 
death,  or  the  day  after,  acquaint  any  body,  by 
leiteni  or  otherwise,  of  her  sii»5|iiiioii8  and  !»«• 
lit^f  that  EaAtmiln  died  by  poison.  Anil  beiiij^ 
intenognte  for  the  panne  Is,  depotiea,  that  up 
the  Monday,  Tuesday,  and  Wednesday  abova 
ineniioned,  when  she  has  deponed,  that  tli^ 
two  pannels  were  together,  in  manner  aboi 
described,  the  old  lady  and  the  deponea^ 
were  in  the  houi^e,  ami  some  servants,  wh^ 
were  at  the  other  end  of  the  house.  And  Ijeing 
interrogate,  from  what  place  the  pannels  wen 
when  they  went  to  the  room  above  Htuirstbf ' 
the  Kaid  three  days  ?  depones,  they  went  troni 
the  low  room  in  nhich  the  deponent  was  alt 
tlieve  days  :  that  she  is  positive  the  old  Indy 
EaxiTiitlii  was  in  the  low  room  with  tbem  u(Kut 
iheMonilay  ;  but  has  been  inliiruied  from  her, 
that  ifhe  observed  nothing  :  ihut  she  de^vircd  the 
old  lady,  on  the  ^VedurMiJay,  to  oliscrve  the 
fiHiiion  of  their  feet  in  ihe  room  above ;  hut  th«^ 
<ild  ladv  said  she  diil  not  hear  it,  which  the  de 
pouent  imputed  to  her  being  dull  of  hearing  j  _ 
that  when  the  df>]jouent  heard  ai^  above,  these 
Just  three  day»,  it  wmk  after  breakta.sl,  and,  as 
fihe  ihtriks,  aln^ut  eleven  o'e.luck  before  u«fuii. 
Depones,  th4t  when  ftbe  went  into  ihi*  room 
wliere  the  two  paaueU  were  upon  the  Nuuday, 
the  door  of  vim  rourii  uas  open,  Depunen^ 
that  h\w  did  not  meet  Eauimihi  upon  the  road 
that  day  khe  tami:  to  his  houae  \  Wv  ^\,\i%  swsi 


t279] 


5  GEORGE  III.  Trial  ofK.  Nairn  and  P.  Ogilw, 


[1«80 


bim  the  day  before  at  the  boat  of  Bermeny, 
but  did  not  speak  to  him,  be  ba? ing  passed  be- 
fore she  knew  it  was  him :  thai  when  she  came 
to  Eaatmiln,  she  fouud  none  in  the  mom  that 
•he  came  into  but  Eastmiln  and  his  mother : 
that  after  she  came  to  Eastmiln,  she  slept  with 
her  aunt  the  old  lady.  Depones,  that  she  does 
not  know  where  the  servants  lay  ;  but  has  a 
notion,  that  Katharine  Campbell  and  Elisabeth 
fiturrock  lay  in  the  kitchen.  Depones,  that  she 
has  seen  Elizabeth  Sturrock  several  times  in 
her  bed  in  the  kitchen  ;  and  tliat  she  does  not 
remember  to  have  seen  Katharine  Campbell 
in  her  bed,  though  she  slept  in  the  kitchen : 
Ibat  the  servant-maids  had  no  place  to  sleep  in, 
in  the  bouse,  but  the  kitchen  ;  but  the  third 
maid  slept  out  of  the  house.  Depones,  that 
lieutenant  Ogilvie  slept  in  the  room  she  has 
formerly  mentioned  ;  but  she  never  knew  him 
aleep  in  any  of  the  beds,  but  the  alcove  bed, 
except  when  his  brother  was  lying  a  corpse. 
DefKMies,  tliat  she  had  once  a  convertiation 
with  one  Mr.  Dougal  a  surgeon,  upon  the  na- 
ture of  laudanum,  which  Mr.  Dougal  had  been 
apeaking  of  the  day  that  lieutenant  Ogilvie 
was  put  from  Easimiln  :  that  Mr.  Dougal  had 
been  telling  that  he  took  it  for  the  gout ;  and 
ahe  aiikeil,  If  it  was  not  dangerous?  He  told 
her,  that  there  had  been  instances  of  futal  ef 
fects  that  it  had  ;  but  said,  if  it  was  cautiously 
taken,  there  was  no  danger :  that  sue  asked, 
how  much  one  might  take  with  safety  ?  which 
he  told  her ;  but  that  she  did  not  ask,  how 
much  of  it  would  do  a  man's  business.  De- 
pones, that  from  her  own  knowledge  she  cannot 
aay  whether  Eastmiln  was  abroad  on  the  morn- 
ing of  that  day  on  which  he  died  ;  but  that  she 
heard  it  reported  by  others,  particularly  by  Anne 
8ain|>sou,  that  he  had  been  out  that  morninf^  ; 
and  heard  it  reported,  that  it  was  after  he  had 
got  the  howl  of  tea  ;  and  that  he  was  seized  with 
a  vomiting  ■(efore  he  got  in  again.  Depones, 
that  she  knows  there  was  once  a  dose  of 
salts  sent  from  Edinburgh  to  Eastmiln  for  Mrs. 
0«^tlvie'd  use ;  but  never  heard  of  any  more 
sails  coming  into  the  family.  Depones,  there 
was  nobody  present  when  the  old  lady  desired 
her  to  go  up  stairs  and  attend  Eastmiln,  and 
keep  these  two  women  from  him.  Depones, 
that  Alexander  0;(ilvic,  one  of  Eastmiln's  bro- 
thers, came  to  Eastmiln  upon  the  Tuesday 
forenoon  aUer  his  death.  i>epones,  that  when 
the  deponent  once  asked  Eastmiln  when  he  was 
dying,  If  he  did  not  cliuse  that  his  wife  should 
be  with  him.^  his  answer  was.  Miss  Clark,  1 
chuse  a  drink ;  and  that  either  Glenkilrie,  or 
James  Millam,  or  both,  was  present  at  this 
time:  that  what  Eastmiln  vomited  was  much 
of  the  colour  of  squeezed  eggs,  or  greenish - 
yellow  :  that  Alexander  Ogilvie  atbresaid  came 
lo  Eastmiln  upon  the  Monday  eight  days  after 
she  came  there ;  and  that  she  came  on  a  Fri- 
day ;  and  that  he  stayed  there  till  his  sister 
was  married  :  that  she  never  heard  of  any  re- 
port of  the  indecent  familiarities  between  the 
pannels  betbre  she  came  to  Eastmiln  :  that  she 
Jl^rer  kueir  Sin*  Ogilvie  the  pauneli  till  the 


deponent  went  to  Eastmiln  as  aforesaid.    De- 
pones, that  she  never  had  any  difference  wiik 
any  of  the  family  of  Eastmiln  while  she  staid 
there  :  that  she  never  heard  that  Eastmiln  bnl 
employed  James  Millam  to  turn  her  away 
from  Eastmiln,  or  borrow  money  from  him  » 
give  ber  to  go  away  from  the  honse :  that  alW 
Eastmiln's  death,  she  got  a  message  from  Bin. 
Ogilvie  the  pannel,  by  Martha  Ogilvie,  Eail- 
miln's  aister,  to  dismiss  from  the  house.    Dis- 
pones, that  the  conversation  she  bad  with  Ufa- 
tenant  Ogilvie  the  pannel,  about  his  sendisp 
the  poison  to  the  other  pannel,  was  at  the  bun* 
side,  upon  the  east  side  of  Eastmiln.    Aa4, 
upon  the  prosecutor's  interrogatory,  depoan, 
that  she  does  not  know  that  Mrs.  (>gilvi«  tbe 
pannel    took    any    salts  aAer   her  husbsotTi 
death.     Depones,  that  when  she  saw  EsA- 
miln,  in  coming  to  his  house,  at  the  boat  mra- 
tioned  above,  she  was  informed  he  was  tbes 
returning  from  Dunsinnan.     And  being  fur- 
ther interrogate,  upon  the  part  of  the  panodi, 
depones,  that  she  was  informed  the  drawcn 
into  which  the  things  were  put  that  Audrev 
Stewart  brou;:ht,  stotid  in  the  lieutenant's  rooa. 
Depones,  that  after  the  pannels  were  cooiinil* 
ted  to  prison  at  Forfar,  she  the  deponent  west 
back  to  Eastmiln,  and  staid  for  a  few  nigbti: 
that  at  this  time,  Alexander  Ogilvie,  £a«<taiili'f 
brother,  had  a  roup  of  the  cattle  at  Eastmih. 
Causa  scientia  pateL    And  this  is  tnitli,  as  ibe 
shall  answer  to  God.     And  being  further  iattf- 
rogate,  upon  the  part  of  the  prosecutor,  de- 
pones, that  when  Mrs.  Ogilvie  the  pannel  vat 
carried    prisoner  from  Eastmiln,    Alezindcr 
Ogilvie  took  up  some  small  keys  of  hers,  asJ 
asked  her,  If  he  should  take  care  of  tbcis.' 
And  that  she  answered.  She  did  not  earc  vke 
took  care  of  them.     Depones,  upon  recollfc- 
tion,  that  Alexander  Ogilvie  bad  the  keys  ia 
bis  liands  when  he  asked  the  above  questios  * 
that  Alexander  0<;ilvie  locked  all  the  rooms  n 
the  house,  except  the  laigh  room  ;  and  put  tke 
keys  in  a  drawer  of  that  laigh  room,  which  be 
locked,  and  took  the  key  with  him.     And  this 
is  also  truth,  as  she  shall  answer  to  God. 
(Signed)      Alex.  Bosweix.     Anne  Cues. 

FJizahelh  Sturrock,  late  servant  to  the  df- 
ceased  Thomas  Ogilvie  of  Eastmiln,  aged  25 
years,  unmarried,  purged  of  malice  and  partii! 
counsel, and  interrogate,  depones,  being soiemo- 
ly  sworn,  that  about  the  end  of  last  harvot, 
she  entered  as  a  servant  to  the  deceased  Tho- 
mas OgiUie  of  Eastmiln,  and  continued  io  tbit 
service  till  the  said  Thomas  Ogilvie*s  deatb: 
tliat  about  Candlemas  last,  the  said  Tbooni 
Ogilvie  was  married  to  Mrs.  Ogilvie,  at  whirh 
time  the  said  Mrs.  Ogilvie  came  home  to  Ei^ 
miln  :  that  much  al>out  the  i^anie  time  lieolr 
nant  Ogilvie  the  pannel  came  likewii^to  nsaM 
at  Eastmiln,  where  he  continued  till  about  i 
fortnight  before  the  said  Thomas  Ojplni^ 
death  :  that  during  lieutenant  Ogilvie's  rih 
deuce  at  Eastmiln,  she  had  occasion  to  ofaiBii 
too  great  a  fondness  betwixt  the  aaid  lieuteswt 
and  Mrs.  Ogilvia  the  panndip  which 


I 


IS8I3  Jbr  Incest  and  Murdtr. 

•reo  to  iodpceocfet,  the  ha? trfr  frequenllj  seeu 

tint:   '  :  .  , .  -        , ^^,^^  oib«?r  in  s^uti 

nix  in:    tlmt  ihe   Ute 

Til  ....    .,t,jiicn:ly  lo  he  Jrotn 

b«^»ai  ^    about  iitu  >4oikiiien:  lliat 

diid^  ,  nhe  Ijfls  fVrniitriilv  iiliHcneiJ 

t)ic  twp  |i.iuiii>h   relire  hy   t  to  the 

upper  riionis»  of  the  house^  l>  ter  aiitl 

|ire9lt*r  ro<itu«  ulieii  iibe  belii^veii  tiivri'  was  no* 
IhnI>'  ui  ibt'M**  riJoiiiM  hut  ihviiiselvt's.  Df'jM>nes» 
tiiitt  one  ui(<lit  a(Hiut  :tUD-M:ft  fiuruiuf  ihtr  time 
atWex.iUK  the  drfXHient  lmvtit>:  occasion  to 
kk  lo  Mrs.  O^iKie  the  patiuel,  ubont  whitt 
the  it4>{iiiti€ru  ^boulJ  briiiic  Ironi  RirkloDf 
.ilrpoiiem  («i  t>t  up  slAirs  (o  the  ca^t  ruotn^ 
'c  the  lipiitt'iiant  ii<«eil  to  Kc,  lt»  see  for  her 
[f«s»  :  I  but  !»hL*  ioinul  th«^  tloor  wf  the  room 
ami  upr>ii  hxtkiiv;;  iutu  tbc  rcvum,  she 

iiMl  0;jilvi 

-    .       ...lU    tf>    h«?    (I  ^     L.,v.,. 

brtfalUmtfi     that   umin  ^'^  tbeni,  she 

jffiiintfiji»ie}y  tonn d  ii^.  .  ^  vpeakiiij^  to 

tbem,  aiitl  imx  ihiwii  to  the  tiist  tl^^t  of  tlut;  utau', 
trill*  re  «be  Hif^r^  and  oil  I  c^  I  u^  lo  her  iiustresg 
to  KiM*  if  kbi^  Mati  in  the  ToresaiU  rooui ;  upoo 
•phich  brr  lot^ireos  auswrtod  her  frotn  Ibal 
room,  ai  she  opprehoniKd  it^  that  ahc  is  as 
tliere:  th«t  lifoti^nunt  Oi^vltrie  the  jmonel  like* 
wite  !>]><»'  frrtin  the  same  place  at  tliat 

time.     1  it  4t  at  auoiber  time,  and  be- 

fbr-  ♦'  I '«•>«- til  en  tin  tied,  And  soon  *t>er 

ibt*  pnntier^  murri.Ti;o  %fiLii  tlie 
"<  ■'  ivbde  th«'  lute  Eji^tmda  wai 
w»j»  toh)  |jri»Uy  p«rl)'  in  a 

wi*-  ^  ■  ■  ss^s 

tOn«n  :  that  iipon  this  the  liepoiient  went  u(i  to 
ber  it)i«trrf«'«  rooui  to  s**e  into  ihe  tnUh  of  it  j 
and  wirjti  h\w  w»ot  iitto  Ihe  100 111.  t; he  observed 
lUuUmuut  C>;*itv)e  ihe  pannel  ^oinj^  from  the 
*  side  loiviirdii  the  wiudovv^  in  bin  nigfht- 
11;  thai  Khe  is  sure  b^.T  mUtrcss  w:\3  then 
bed  tn  that  room,  as  ihe  uus  not  j^ot  up  by 
that  time  in  the  moraingfi  uor  had  abe  come 
4own  itAitiif  Hor  waa  ahe  in  ilie  only  other 
rootn  above  itairs,  which  the  drpoofut  iuune- 
diaiely  trent  and  luokt'd  into.  Utpones,  t!iat 
At  aevrruJ  other  tirticu,  whfo  the  duponcnt 
Had  oceactiaii  to  he  »ittjtiijif  at  hkie  v^beel  in 
Ibe  kitchen,  which  is  in^mcdialoly  under  Mra. 
0«;>lfte  Ihe  putinePs  roonif  and  where  one 
can  taaily  bear  aj)y  noite,  even  tr»  a  lai^h 
word,  that  i*  iieude  in  Mvu,  O^iltje*^  room,  the 
tlepouiMit  brard  ihr  feel  of  the  two  uantK'U  in 
tbe  ri>vin.  and  sbnttiinii^  at  itie  nide  of  the  bed: 
Ihat  th«'  r^-Hwrtn  »vhy  »hc  hclievtd  it  lo  bf  the 
liiiet  ot  the  paiineU  which  she  UvMil  lh*>rei  waa, 
iliat  ^h»'  Jiuw  I  hem  (fo  op  toi^cthcr  to  that  room 
jnat  bet'ort'  ah«  heard  tbe  noise  aw  aforc*4uid. 
llt'iMMi*  >*,  that  nlie  hclicve»  Iteiaetiant  Uijd vjtf 
tbe  ppinnci  ivn»  put  away  by  tlie  late  Caktioitn 
frotii  tiic  hooir^  u[M)n  Eastniiln'a  aiispiciuo, 
iliAl  liif  (froleoLfni  waa  too  threat  wjIIi  Mra. 
O^ilvif  ih»  puund  :  that  her  reason  for  f»e- 
Ikviiii;  »o  IN,  that  Abuut  tbti  lime  iicutcaaitt 
VOL.  XIX* 


A.  D.  1765. 


iim^ 


OfttUie  W4»nt  away,  the  deponent,  as  she  was 
4joinjx  to  tier  bed  \n  thn  kuchco,  overheard  ibe 
talc  i^ai>ittnih)f  Hitcti  he  wiits  ^oin^  to  hcd  Mitli  [ 
h\^  uife  in  the  room  above,  say  to  hisi  w  f*^  , 
Thai  f)he  was  loo  cereal  wtih  licutcniint  O^^i  vie 
the  pannel  ;  and  timt  i\tey  were  »s  rrcr^ncni  lo- 
gelher  aa  the  bdl  \\,vh  to  rio'v  on  Suoday.  De- 
]K)ucs,  that  ^Inni'  Hauipsou  wai  iu  the  kifrben 
at  the  Same  tiuiC' ;  and  the  deponent  bi'lifvi't  ^ 
^biUieasd  what  pa«ised  lieluivt  Bastmdti  au4 
bi)»  wile,  as  aliocsaul,  ntid  tlie  deponent  chal- 
lenged htr  Ibr  Yihik'inn]^.  Oepoiieti,  thai  after 
lieiiieoatit  Oi^ilviethr  pann>'i  had  Utl  the  house 
of  £a5lmib»,  I  be  dt  pooeiit  nbscrveit  the  olhtr 
panifcl  Mr«,  0;;ilvic  m  learn  and  cvyiot; ;  opou 
which  ncca&iou  AIt».  O^ilvie  liftid  iu  the  dcpc»* 
uent,  That  ahe  wns  9orry,  or  grieved,  hcute- 
nant   l^i^dvie   had  left  ihe    houe>e.     Drpooev, 

a.,.  .......  H...  ...,J.,  of  the  day   0- ■»  ! ^ 

.isaf  resa 

...J :^-_...     jL-ponent  a  1   -    ..         -..= 

ried   to  lietitenant  Ogdvie  at  Little   l^orlb^r, 
al>oot  three  nuie$  Iroiii  E«istu)tln:  that    5Jrtf, 
O^iUie  de»ireil  the  depootot  to   let    nolK>d/  ! 
know  «be  bad  g^ot  i^ncb  letter  :  that  the  de|M)- 
neni  did  not  know  what  were  the  couienta  uf  | 
the  letter  :  that  Mrti.  O^itvie  desired  ihe  depo* 
nent  to  tell  iieuteiuuU  O^ilvie,  thai  vhe  but  | 
been  bad  since  ha  weot  away  ;  aail  that  her*' 
busbond  was  not  ownittg  ber:    tbj 
livert'd   the   letter    ac^grdinerly    to 
i)§ri]vieAt  tbe  water-aide  near  Little  j   'iim 
tbiii  the  lieutenant,  in  answer,  bid  the  deponent  i 
Ic-ll  Mrs.  Ogilvie,  thui  be  wa9  very  wc)f,  and 
that  she  slionld  keep  up  a  goml  heart  i  and  I 
that  hi'  IV  IS  to  ?ro  to  Imron  (leid'a.     i)cpones»  | 
ibat  ;  Mra,  Ogdvie  tbe  pannel  ^ave 

her  ail  I    r  to  c:>i fry  to  lieutenant  Oifd vie 

at  Glt'nkjbie,  and  to  deliver  it  piivalely,  w  hicU  ^ 
tbe  deponent  carried  accordingly  ;  and  she  re* 
ccivclan  answer  in  vtriting  from  ihc  !  ■  ■  ■  i 
to  ftlr-j.  Ogilvie,  which  the  UeuienM. 
dettircd  her  to  deliver  privately  ^  and  nhe  iiul  ^n^ 
Ue|mue!i,  that  upon  auottiv^r  time^  biiu^  tbe 
Tu«s*(day  immediately  befgjc  tbe  hile  Kant- 
mllti'a  death,  Mr».  Oji^dvie  tbe  pauncl  ^^^lU  the 
deponent  \s''  '~  '*'  t  leller  to  UeutcnantOgif* 
vie  at  Alyi  with  orders  to  deliver  it  ^ 

jirivatety,     i^v  ^*"''    ''*'"  ''  ''^ercd    ihoi 

i«:lttr   to  liculci  '  trly-i   aod 

ihciY  wrnt  i*'"'  : ;^^         hsk  iu  the  ^ 

town  of  A I  letiirned  and  recti  veil  art  \ 

answer  fro i!  nitlgiivieiotbe  ta«it'iucn- 

lioncd  letteri  whtch  he  desired  her  to  take  care  I 
id',  and  deliver  privatdy  ;  when  belikewiKo  tobt  ' 
her,  that  be  bad  «  packet  of  bnen*(  lymg  at  m  I 
bouse  near  by,  and  a  tetter  with  them,  wbicti  ^ 
iIm  iieuteuanl  deaircil  the  dep<»iR'nl  to  call  for,  j 
And  take  to  Kastinilii  with  bcr  :  that  thr  depo- 
nent rclurnrd  iiirai:;bt  to   Eastmtln   with  lb«  ' 
lieotenant^s    answer;    and     Mr!<.  U^tUie  nci|  | 
beiof;  then  at   hotne,    the  dtjioncnl   wtnt   and  ' 
fetched  a  bundle  nf  Iin4»ni4,  iiuil  tbe  other  letter, 
all  which  «lic  delivered  lo  ]>|r§.  Of  ilvie  at  tha 
same  limc.     Uepones^  Ihat  the  anvvicr  *ihe  r»- 
c«ifed  laat  from  the  beuteuaol^  asatore^l, 
wai  %  laigt  thick' letter^  bi|f^cr  Ibno  «  sbirti  of 


12833 


5  GEORGE  III. 


Trial  qfK.  Saim  and  P,  OgUvUt 


[1884 


paper ;  bat  she  did  oot  think  there  was  any 
thing  in  it  but  paper.  Depones,  that  East- 
milu  appeared  to  be  in  his  ordinary  health  upon 
the  Tuesday  before  he  died,  and  that  he  usually 
bad  very  t^A  health,  the  deponent  having 
never  known  him  to  be  in  bad  heakh  while  she 
was  in  his  service :  that  upon  the  Wednesday 
before  his  death,  be  was  likewise  in  good 
health  :  that  upon  the  Thursday  morning  upon 
which  he  died,  the  deponent  knew  little  arout 
Eastiiiiln,  as  she  herself  was  confined  to  bed  by 
sickness,  except  that  she  heard  that  EasUniln 
bad  been  taken  ill :  that  Mrs.  Ogilvie  the  pan- 
nel  came  into  the  kitchen  where  the  deponent 
was  lying,  and  told  the  deponent  in  a  low 
▼oice,  or  a  whisper,  that  she,  Mrs.  Ogilvie, 
had  given  the  laird  his  breakfast  that  morning, 
and  she  desired  the  deponent  to  say,  that  she 
bad  likewise  got  her  breakfast,  although  the 
deponent  had  then  (;ot  none :  that  some  time 
thereafter  Mrs.  Ogilvie  sent  Anne  Sampson 
with  some  tea  to  the  deponent  in  a  bowl,  which 
the  deponent  drunk:  that  the  deponent  com- 
monly got  tea  in  the  morning  when  she  was  in- 
disposed. Depones,  that  after  the  deponent 
bad  got  out  of  bed  on  the  said  Thursday  morn- 
ing, and  before  she  got  the  tea  as  aforesaid,  she 
OMerved  the  late  Eastmiln  come  in  at  the  ou^er 
door,  and  come  forward  to  the  kitchen  where 
the  deponent  was :  that  he  was  then  very  ill, 
and  vomited  much :  that  at  this  time  she  be- 
lieves the  rest  of  the  family  were  at  their  break- 
fast, Mrs.  Ogilvie  the  panne!  having  come  into 
the  kitchen  for  some  cream  to  the  tea.  De- 
pones, that  Mrs.  Ogilvie,  seeing  Eastmiln  so 
ill,  desired  him  to  go  up  to  his  b^ ;  which  he 
did,  and  the  deponent  helped  him  to  go  up 
stairs,  and  to  throw  off  his  cloaths  :  that  after 
he  had  been  a  little  while  in  bed,  he  said,  he 


no !  I  do  not  want  her :  that  Aone  Clark  told  tbt 
deponent,  she  might  go  down  and  bid  her  oomt 
up  for  all  that:  that  the  deponent  accordingly 
went  and  told  Mrs.  Ogilvie ;  but  Mrs.  Ogilvw 
refused  to  come  up,  saying,  She  did  not  like  ts 
see  dying  people.  D»epones,  that,  during  ber 
hosband's  illness,  Mrs.  Ogilvie  did  not  chase 
that  the  people  in  the  neighbourhood  that  cams 
to  see  him  should  get  access  to  bis  room, 
for  fear  of  disturbing  him :  that  the  depo- 
nent went  and  brought  the  precentor  in  tbs 
afternoon,  or  rather  alioat  dmnei^time,  wbea 
the  precentor  went  and  prayed  by  Eastniilo ; 
Mrs.  Ogilvie,  uho  bad  sent  the  deponent  fsr 
the  precentor,  went  up  stairs  with  bim  to  East- 
miln's  room.  Depones,  that  Mrs.  Ogilvie 
was  not  very  dull,  or  shewed  great  maiks  of 
grief  upon  her  husband's  death,  till  Alexander 
Ogilvie,  Eastmiln's  brother,  the  doctor,  caoM 
to  the  house  upon  the  Tuesday  thereafter; 
when  Mrs.  Ogilvie  having  ordered  the  depo- 
nent to  desire  Alexander  Ogilvie  to  speak  willi 
ber,  and  he  having  refused  to  do  so,  Mn. 
Ogilvie  fell  a-cryiog,  and  wringing  her  haodi, 
throwing  herself  back  upon  the  ^d,  and  say- 
ing. What  could  be  the  meaning  of  this.'  Ik- 
pones,  that  Alexander  Ogilvie  stopped  the 
burial,  and  sent  for  doctor  Ogilvie  of  Fort'sr, 
and  doctor  Uumsay,  and  doctor  Meik  of  Alytk, 
to  inspect  the  dead  body  of  his  brother :  dut 
at  this  time,  Mrs.  Ogilvie  behaved  very  ill, 
weeping  and  crying,  and  wringing  her  bands, 
and  tearing  herself;  but  the  deponent  does  oot 
know  the  cause  of  this  behaviour.  Depooci, 
that  lieutenant  Ogilvie  at  the  time  of  bis  bro- 
ther Eastroiln's  death,  lived  at  Glenkilrie'i 
house;  and  Glenkilrie  having  been  at  Eut- 
miln  when  Thomas  Ogilvie  died,  he  veol 
home  and  desired  lieutenant  Ogilvie  to  go  tt 


thought  himself  some  easier.  Hut  depones,  |  Eastmiln  upon  that  event :  that  lieuteoaot 
that  in  a  short  time  he  turned  very  ill  again,  Ogilvie  came  to  Eastmiln  next  morning,  aod 
fell  a-vomiting  and  purgfing,  and  complained  the  deponent  seeing  him  approach  the  bousf, 
of  every  part  of  his  body  ;  said  his  heart  was  '  told  Mrs.  Ogilvie  that  he  was  coming:  upoo 
broken  or  riven,  and  he  tossed  very  much.  |  which  Mrs.  0«^lvie  went  out,  and  desired  tht 
Depones,  that  Eastmiln,  during  his  illness,  i  deponent  to  tell  lieutenant  Ogilvie  to  speak  to 
called  frequently  tor  cold  water,  and  drank  !  her  in  the  stable :  that  the  deponent  went  ac- 
often  of  it.  Depones,  that  about  ten  or  eleven  |  cordingly  and  delivered  the  message  to  lieute- 
o'clock  that  forenoon,  when  old  lady  Eastmiln,  \  nant  Ogilvie,  who  was  then  walking  with  Dr. 
Andrew  Stewart,  and  the  deponent,  were  in  the  Meik,  and  the  lieutenant  went  to  Mrs.  Ogilvie  in 
room  together  attending  the   late   Eastmiln,  |  the  stable,  as  desired.     Depones,  that  after  tbs 


Eastmiln  said,  in  the  deponent's  hearing.  That 
he  was  poisoned,  and  that  woman  had  done  it. 
Depones,  that  by  that  woman,  the  deponent 
understood  Eastmiln  meant  his  wife :  that  the 
old  lady  seemed  to  Understand  it  in  the  same 
way,  and  reproved  her  son  Eastmiln  for 
saying  so.  To  which  Eastmiln  answered.  That 
it  was  very  true,  and  his  death  lay  at  her  door. 
Depones,  that  upon  the  day  Eastmiln  was  ill, 
as  aforesaid,  Mra.  Ogilvie  the  pannel  came 
pretty  ot^en  up  to  his  room  to  see  him  in  the 
forenoon ;  but  she  did  not  come  near  him  at 
all  in  the  afternoon  ;  and  that,  in  the  afternoon, 
Mrs.  Anne  Clark,  who  sat  close  by  Eastmiln, 
desired  the  deponent  to  go  down  and  tell  Mrs. 
Ogilvie  the  pannel  to  oome  up  and  see  her  hus- 
band: upan  whicb  £«ftaulB  iiimelf  stid.  No ! 


late  Eastmiln's  death,  and  after  31rs.  Ogilvis 
heard  the  sheriff  of  Fortarwas  comiug  to  exa- 
mine them  at  Eastmiln,  Mrs.  Ogilvie  desired 
the  deponent  to  say  to  the  sheriff,  that  the  de- 
ponent had  seen  Mrs.  Ogilvie  mix  up  the  bowl 
of  tea,  which  she,  Mrs.  Ogilvie,  had  given  ber 
husband  the  morning  oi'  the  day  on  which  ht 
died;  and  that  the  de|H>nent  had  drunk  sooss 
of  it  before  Eastmiln  tasted  it ;  and  that  aba 
likewise  drank  off  what  Eastmiln  left  of  it; 
she  likewise  particularly  desired  the  deponent 
to  say,  that  the  deponent  was  in  the  closet  with 
her,  Mrs.  Ogilvie,  when  she  mixed  up  tbt 
bowl  of  tea  ;  and  that  she,  Mrs.  Ogilvie,  gsM 
her  husband  some  short  bread  with  it :  tbsl 
Mrs.  Ogilvie  told  the  deponent,  that  if  the  dc- 
pooeot  wouki  say  as  thus  dircctedi  the  isiiM 


J2853 


Jhr  Incest  and  Murder. 


A.  D.  1765. 


[12S6 


staii<l  \%y  i\\e  deportent,  that  no  barm  should 
Imppeii  to  lifr  ;  tli«t  tlie  depoiiCDt  shotild  go 
wiiti  licr  i^hercver  sbe  tveiit;  and  vthile  she, 
i^lrs,  O^rHue,  hud  n  bulf-penay,  she  should 
Imvie  the  hatf  of  it,  Depones,  that  Mrs. 
^Qyilvie  spi^ketoihe  dejioneut  in  this  maoDer 
^Spral  times  :  that  Ijptitenant  O^iUie  was  pre- 
Hr  upon  these  occasiotis^  liturd  ubat  ^Irs. 
OitHvie  desired  ihe  deponent  to  »ay,  and  he 
liimnelt'  desire<l  the  ilt^punent  to  say  as  Mrs. 
Ogilvie  directed  her*  Depones,  that  some  time 
telore  E7i>tiiiitn's  death,  the  deponent  knuws 
Mni.O<;il?ie  took  a  dose  of  salbip  ihe  deponent 
liatine  ;Jol  ii  port  of  them :  that  she  never 
Jtncw  Mrs.  Ogilvie  taking  &ahs  hut  that  time. 
Pepones,  thut  before  Kiii«Uniln*s  mnrriaQfe,  she 
lay  in  tlie  lai:;h  room  with  old  31  rs.  I\ntvte  and 
her  daiig^hter:  tlial  after  the  marriai^e,  she 
dujlinoed  to  lie  tvith  the  old  lady,  till  Anne 
Clark  canie  lo  Eastmilti  :  that  after  that  Anne 
CUrk  Vixy  with  tbe  old  lady,  and  the  deponent 
lay  in  the  kitchen  with  Katharine  Campbell: 
Ibat  at  this  time,  Anne  Sampson  lay  in  au  out- 
fiouse  till  Kuibariue  Campbell  went  an  ay. 
l>e|ione!(,  hein^  inlerro|(ate  for  the  panuels,  thut 
''^  ^  she  has  above  deponed,  concerniug  the 
dt^kf)««in^  and  hut^^in^  one  another;  bap- 
ned  at  different  ttmi';*,  sometimes  ivhen  they 
Here  by  them^ielvefi,  and  at  other  times  when 
•  lht?y  were  m  company  with  others.  Depones, 
that  when  she  saw  the  captain  m  Mrs.  Ugilvie^s 
room  in  his  ni|i(ht*gown  a^  above,  the  dtutr  viaa 
in  part  open,  su  that  she  could  see  into  it,  and 
(I'  '•  'f'"  rltij  not  a:o  into  the  room.  And  ht-inpr 
i  e  fur  the  panoels,  what   nomtier   of 

|j    .    .-  ,  lifit  of  Ihe  t amity,  (jot  access  to   the 
^ooni  m  which    Eni^tmdn  was,  after  bis  beings 
|>ken  illasalmve?    depones,  Ihat,  lo  tbe  best 
pi  her  rememhrance,  the  persons  who  got  ac- 
,  were,i\lr.  Spalding  of  (tlenkilrie^  U'illiam 
Proster,   Anne    Froster,    James   ftlillam,   and 
[>avid  Watson  :    that  James  Millam,  William 
r roster,  and  Anne  Froster,  were  brought  in  liy 
llie  depooeul,  without  the  knowled^^e  of  i^Irs. 
)|g^ilvte.     De}Kmes,  that  she  did  not  hear  Ah  x- 
ider  0{fil vie  give  orders  to  the  per>»ons  who 
ere  sent  for  the  doctors,  to  inspect  Eastmihi's 
idy  ;  but  she  afltrwurdv  heard  of  tt  from  the 
sons  who  bad   been  sent,  and  who  on  that 
count  had  cnme  to  get  meat  in  the  fmnily ; 
^ul  that  she  the  depoi»ent  was  forbid  by  l^Iis, 
Dtl^ilvie  to  give  them   meal.      Depones,  that 
hen'the  deponent  was  fjrsl  hroughi  lo  town*  she 
as  todirnl,  for  about  the  spare  of  twenty  days, 
\  the  house  of  one  Mr  Gardiner  at  the  bead 
r  tlte  CoM^atpJ»y  Mr,  Mnrison  tbe  maci'r: 
|htt  from  thence  hhe  was  carried  to  the  castle 
Edinburgh,  uhere  she  has  lemaiuetl  since 
^at  timer     that  the  deponent,  Anne  Clark, 
Inne  Hampton,  at»d  Katharine  Caumliell,  were 
lodged  iii  the  same  room  tit  I  Thursday  or  Fri- 
lay  last,  when  Anne  Clark  was  put  mta  ano. 
ler  room  iu  the  castle,  where  she  remained 
day  and  a  night,  and  was  therraHer  put  into 
tc  rootu  with  tbe  deponent,  and  tbe  otlier  ywi* 
above- mentioned*      Depones,  that  whUr 
le  ilepouetili  and  ibe  other  perM>oi  abtive* 


mentioned,  were  at  the  house  of  one  Gard inert 
and  in  tbe  castle,  they  bad  some,  though  noi 
much,  conversation  upon  the  subject  of  thi$ 
trial :  hut  that  in  these  conversations,  atl  of 
them  declared,  Uiat  they  consitlered  it  as  their 
duty  to  tell  nothing  but  the  truth.  Depones, 
that  upon  the  morning  of  the  day  after  East- 
mi  lu's  death,  Anne  Nain|>son  told  Mrs.  Stewart^ 
Eastmiln^s  sister,  in  presence  of  the  deponent, 
tliHt  the  bowl  out  of  which  Eastmdn  was  said 
to  have  drunk  the  f poison  the  day  before,  was 
beh»w  in  a  presb  iu  the  kilchtn  :  that  tbe  de- 
P'lrteot  baviir^  token  out  the  howl,  observed 
something  gteasy  in  the  bottom  of  it ;  and 
intending  to  try  if  there  was  any  tiling  pot- 
soDfius  iti  the  grease,  she  put  some  broth  itito 
the  boul,  and  gave  it  to  a  dog,  who  eat  it  up  ; 
but  was  nothing  the  worse  of  it :  that  the  dc* 
pooent  made  this  experiment  of  ber  own  ac* 
cord,  and  not  on  the  suggest  ion  or  desire  of  any 
other  person  wbatsomever.  And  depones, 
that  Anne  Sampson  has  often  told  tbe  depo- 
nent»  that  she  had  tilled  Ihe  said  bowl  with 
water,  and  offered  it  io  EAHimiln,  that  day  ou 
which  he  dietl  ;  hut  that  he  liad  refused  to 
drink  uul  of  it,  damning  the  howl,  anil  ssyiog^ 
be  hud  already  got  hi^  death  <Kit  of  it.  Causa 
tcicntiiE  pidtt.  And  this  is  truth,  j^%  she  shall 
answer  to  God.  And  being  further  tnlerroc:ate, 
depones,  that  while  the  deponent  was  iu  East- 
miln's  service,  slie  never  lieard  of  bis  being 
truuhled  with  vomitiLitrij,  ]iurgiitg.^,  or  choUcs, 
before  th>it  day  on  wliich  he  dierl  ;  and  that 
she  never  knew  of  his  being  indisposed,  except 
by  sl»i;lit  colds.  Dispones,  ihat  when  lieute- 
nant U4;ilvie  went  into  the  stable  where  Mrs. 
0|4i1rie  was,  as  has  been  above  deponcfl,  be  did 
nut  remain  there  above  four  or  fiv^e  minutes.  And 
this  is  also  truth,  as  she  ihall  answer  to  God: 
aud  depones  she  cannot  write.     (Siumd) 

And.  Prinolb. 

Anne  Sumjiton,  late  servant  lo  the  deceased 
Thomas  OgiUie  of  Eastmiln,  aged  19  years, 
unmarried,  purged  of  malice  and  partial  coun- 
sel, sworu  and  interro^aie,  deptniis,  Thnt  she 
entered  servant  to  tbe  lamtly  ol  Eusttuib  Whit- 
»iuudiiy  was  a  year:  that  after  being  some  time 
absent,  she  returned  a  few  days  belore  JVlisa 
Ct>«rk  auue  to  the  bouse  :  that  after  her  returu, 
iibe  had  more  than  once  occasion  to  observe 
Mrs.  Ogilvie  and  lieutenant  Ugdiie  kissing  ooe 
another ;  narlicularly  once  in  the  kitchen  he- 
fore  the  liepoucnt  and  another  servant  maid  : 
that  she  has  seen  them  embrace  and  bug  one 
another:  that  when  the  biiril  was  out  of  the 
house,  nhe  has  known  them  retire  to  a  room  by 
themnelves,  hot  not  staying  above  an  hour  at 
a  time.  Depones,  Thut  one  morniug  whea 
the  laird  was  at  Dunlin  nan,  the  hen^d  the  two 
liannels  speaking  together  io  bed  in  the  r«H)m 
above  :  that  f>he  was  in  the  kilch^'n,  the  ceiling 
of  which  i;!  not  phislere*!,  and  uhere  she  could 
hear  the  lowest  voice  in  ihe  room  above :  that 
upon  ibis,  *he  desired  herfcllow. servant,  Eli- 
zabeth Nturrock,  to  go  up  stairs  aud  see  wbai 
was  goittg  on  i  aud  ibai  Ehiabetb,  u^o  ber 


1287] 


5  GEORGE  III. 


Triid  ofK.  Nairn  and  P.  Ogilw^ 


[1S&8 


retnrn,  lolil  the  deponent,  that  the  lienteoant '  some  dean  water  for  her  master  for  drinking, 
had  i^fft  out  of  the  bed  before  she  was  got  to  the  |  which  she  did  in  the  same  howl  tirat  be  got  his 
door ;  and  that  she  saw  him  i^oine  from  the    tea  in  from  Mrs.  Oz'Me ;   but  that  site  tint 


bed  towards  the  window  in  his  night-gown. 
Depones,  Tliat  this  was  about  snn-risintr.  De- 
p<ines,  That  the  lieutenant  left  the  house  a 
fortoifrht  before  his  brother's  death  ;  and  before 


synded  the  bowl  with  some  water:  that  she 
went  ap  stairs  with  the  bo»1  into  her  master's 
room,  and  found  him  in  bed ;  but  that  opoa 
seeing  the  bowl,  he  erred.  Damn  that  bowl, 


that  time,  the  dt-ponent  beiuir  in  the  kitchen  I  for  1  hare  got  mv  death  in  it  already  ;  and  btj 
with  her  fellow- serrants,  Elizabeth  Sturrock    her  at  the  same  t^ime,  carry  it  down  9tain 


and  Annie  Robertson,  they  all  heard  the  laird 
and  bdy  talking  together  in  bed  in  the  room 
alK>?e :  that  the  talking  begun  with  the  ladv's 
acoUiint;  her  huttliand ;  upon  which  the  laird 
hade  her  hold  tier  tongue,  for  that  ^he  and  the 
h'eutenant  were  as  comninn  as  the  bell  that 
nns^H  on  Sabbath.  Depones,  That  the  morn- 
ing the  lieutenant  left  the  house,  she  saw  Mrs. 
Ogilvie  weeping :  that  this  was  before  he  went 


of  his  sight;  and  that  she  carried  up  water  to 
him  in  the  tea-kettle,  which  he  dnnik  of.  De- 
pones, That  the  reaiton  for  her  syndiog  the 
tMwl  was,  that  it  appeared  to  he  greasv  Mtd 
white;  and  that  she  knew  the  bonl  to  k  tbe 
same  as  above,  because  Mrs.  Oirilvre,  afVer  giv- 
ing her  master  his  tea,  came  down  stairs  with 
it,  and  set  it  down  in  the  kitchen,  on  the  fore- 
side  of  the  press.     Depones,  That,  after  srod- 


a»ay;  and  that  she  saw  her  also  weep  after    ing  the  bowl,  as  aforesaid,  the  grease  diJ  not 


he  went  away.  De|>on«*s,  That  Eastmiln  was 
a  healthy  man ;  and  that,  before  the  day  he 
died,  %he  never  heard  him  complain,  if  it  was 
not  sometimes  of  a  head-ach ;  and  that  the 
niifht  bf-fore  he  died,  he  was  in  health,  so  far 
as  she  knows.  Depones,  That  the  night  be- 
fore her  master  died,  she  aaw  Andrew  Stewart 
in  the  hoii<sc  of  Eastmiln ;  and  that  she  was 
told  b^  Elizabeth  Sturrock  and  Miss  Clark, 
the  night  thereafter,  that  the  said  Andrew 
Stewart  had  retired  with  Mrs.  Ogilvie  into  a 
private  room.  Depones,  That  the  morning  of 
the  (lay  her  master  died,  breakfast  was  ready 
betwixt  eight  and  nine,  a  little  sooner  than  or- 
dinary :  that  slie  saw  her  mistress  make  up  the 
howl  of  tea  in  presence  of  her  mother-in-law 
and  Miss  Clark,  for  Andrew  Stewart  was  not 
then  up:  that  she  followed  her  mistress  up 
stairs,  wanting  some  beef  out  of  the  bpef-stand, 
and  saw  her  go  into  a  closet  adjoining  her 
master's  room  :  that  the  deponent  followed  her 
into  ihc  closef,  demanding  the  href;  but  that 


come  wholly  out  of  it.  Depones,  That  the  dty 
her  master  died,  about  mid-day,  she  wa?  ant 
by  Mrs.  Osril^ie  two  miles  to  clip  some  shefp. 
Depones.  That  Mrs.  fhjfilvie  fri^uenily  went 
to  see  how  her  husband  was  in  the  foreoooo, 
hut  not  once  in  the  aAemoon ;  and  that,  whev 
the  deponent  was  going  up  stairs  to  see  him 
between  twelve  and  one  o'clock,  she  was  turnerf 
back  by  Mrs.  OgiWie.  Being  interrogate  oo 
behalf  of  the  pannels,  depones.  That  when  Mrs. 
Ogilfie  made  up  the  bowl  of  tea  in  the  br«ak- 
fasting-room  as  aforesaid,  the  deponent  saw  hrr 
put  in  milk  and  sugar ;  but  whether  she  pnt  in 
any  honey,  the  de|>onent  does  not  perfectly  re- 
member, nor  whether  she  saw  any  honey  opoa 
the  table.  Depones,  That  the  family  aeMooi 
breakfasted  without  honey ;  but  that  tbe  day 
deponed  upou,  she  rather  thinks  there  wis 
none;  because,  she  believes,  at  that  time  tbs 
house  was  out  of  honey.  And  being  further 
interrogate  in  l»eha!f  of  the  pannels,  depones, 
That,  at  the  time  depone<l  upon,  when  she  car- 


h(T  mi. -tress  bade  her  go  down  Mairs,  as  she    ried  up  the  fresh  water  to  her  master  to  drink, 


was  not  reatly  vet ;  and  that  she  was  always 
waiitinjjT  soinetiiing  ;  and  that  Mrs.  Oj^ilvie  ap- 
peared io  bo  in  a  passion  at  her :  that  her  master 
was  at  that  time  in  bod  ;  and  that,  when  the 
doponont  was  in  the  closet,  slie  saw  Mrs.  Ogil- 
vie stirring  about  the  tea,  with  her  face  to  tbe 
door  ;  and  that,  upon  what  her  mistress  said  to 
hor  abfjvo,  she  went  out  of  the  closet  down  to 
tlie  kiirhen  ;  but  that  she  did  not  see  her  mis- 
tress, ivhoii  in  the  closet,  put  any  thing  into  the 
tea.  Depones.  That  at  this  time  she  saw 
Alexander  Lindsay,  a  servant-lad  in  the  house, 
standing  upon  tbe  stair-head,  near  the  closet- 
door,  at  the  time  her  mistress  was  in  the  closet. 
Depones,  That  her  master  got  up  between  nine 
and  ten,  and  first  went  to  the  stables  to  sec  his 
horses  fed,  and  then  to  the  Shilling- Hill,  where 
he  conversed  with  some  of  his  tenants :  that, 
in  liis  returning  towards  the  house,  she  saw  him 
vonittin'T,  and  still  more  when  he  came  into 
the  kitrben ;  and  that,  when  he  was  there,  Mrs. 
OjfiKif  came  into  the  kitchen,  and  ordered 
Elizabeth  Sturrock  to  help  him  up  stairs,  and 
followed  him  herself.  Deiiones,  That  some 
time  thereafter^  nhe  was  ordered  to  carry  up 


she  synded  the  bowl  with  water,  and  not  with 
broth  out  of  the  pot.  Depones,  That  the  next 
day  thereafter,  tne  howl  was  synded  with  broth 
out  of  the  pot,  and  given  to  a  dog  ;  and  tbat  it 
was  the  deponent  that  did  so  by  the  direction 
of  Elizabeth  Sturrock;  and  that  Elizabeth 
Sturrock  gave  her  no  reason  for  doing  so.  Fur- 
ther depones,  That  she  took  the  bowl  for  car- 
rying water  to  her  master,  because  it  was  at 
hand ;  and  that  she  had  no  notion  at  that  tiine 
of  her  master  being  poisoned,  uor  till  after  bis 
death.  Being  interrogate  in  behalf  of  the  pan- 
nels, when  she  returned  from  the  sheep-clip- 
ping ;  depones.  That  it  was  about  nine  at  niffht. 
Upon  which  being  again  interrogate,  how  she 
came  to  depone  as  above,  that  Mrs.  Ocrilvie  did 
not  once  visit  her  husband  in  the  attemooD  f 
answers.  That  was,  because  she  was  told  so  by 
the  other  servants,  who  added,  That  her  master 
did  not  want  Mrs.  Ogilvie  up,  for  fear  of  doiag 
her  harm.  Depones,  That  afler  she  saw  htf 
mistress  make  up  the  bowl  of  tea  in  the  break- 
fasting  parlour,  as  aforesaid,  fhe  went  into  tbi 
kitchen,  and  made  up  th^  fire,  befbre  ahe  fol- 
lowed her  mistress  to  the  closed  u  abtite  de* 


I 


f(^  Incest  and  Murder. 


A.  D.  1765. 


[1S90 


to.     Cawn  uieniia  patet.    And  this  if 
as  she  shall  answer  t6  GcnI. 

(Signed)        Henry  Home. 

!rew  Stewart,  merchant  in  Alyth,  aged 
married,  pureed  of  malice  and  partial 
J,  swrorn  and  intefrof^ate,  depones,  That 
:be  evening  before  Mr.  Ogilrie  of  East- 
lied,  being  a  Wednesday,  the  deponent 
the  house  of  £astroiln,  when,  upon  his 
^  into  the  house,  Mr.  OgilTie  told  him, 
ft  bad  forbid  his  brother  the  captain  the 
on  account  of  suspicions  he  had,  that 
fe  was  too  much  taken  up  in  doing  things 
i  brother  the  captain,  and  not  for  himself; 
at  at  the  same  time  he  mentioned  some 
nces  he  had  with  bis  brother  concerning 
'-matters.  Depones,  that  on  the  Mon- 
fore  Eastmiin,  the.  deponent's  brotber-in- 
ied,  lieutenant  Ogilvie  (who  is  above  de- 
captain)  came  to  the  deponent's  house 
til  on  horseback  ;  and  that  the  horse  he 
f>elonged  to  Mr.  O^ilvie  of  Eastmiin. 
les,  that  on  the  day  thereatler,  being  the 
ay,  Elizabeth  Sturrock,  a  former  wit- 
;ame  to  the  deponent's  house,  and  bought 
things  for  the  family  of  Eastmiin  :  that 
*t  not  know  that  she  brought  with  her 
tier  for  lieutenant  Ogilvie ;  nor  does  he 
if  lieutenant  Ogilvie  gave  her  any  letter 
Irs.  Ogilvie  the  pannel.  But  depones, 
•  did  that  day  inform  lieutenant  Ogilvie, 
le  the  deponent  was  to  be  at  Eastmiin 
ay.  Depones,  that  upon  the  day  there- 
be  accordingly  went  to  Eastmiin,  and 
be  went  off,  lieutenant  Ogilvie  delivered 
deponent  a  small  phial  glass  containing 
liing  liquid,  which  he  said  was  laudanum ; 
so  a  small  paper  packet,  which  be  said 
ned  salts;  and  that  the  morning  of  the 
*ecediug,  the  deponent  saw  the  lieutenant 
i)g  among  some  salts,  at  least  which  ap- 
I  to  the  deponent  to  be  salts,  which  were 
lest  belonging  to  the  lieutenant :  that  the 
glass  was  rounds  and  knows  that  there 
lother  phial  glass  In  his  own  house  which 
fuare :  that  lie  is  positive,  as  he  has  al- 
de|)oue(l,  that  one  phial  glass  was  de- 
I  to  him  by  the  lieutenant ;  and  cannot 
^ith  certainty,  that  two  might  not  have 
lelivered  to  him  by  the  lieutenant ;  but 
thinks  he  ^ot  only  one  ;  and  that  at  the 
^hen  the  above  particulars  were  delivered 
deponent,  the  lieutenant  desired  him  to 
-  them  privately  into  Mrs.  Ogilvie's  own 
that  he  did  not  see  the  packet  made  up, 
d  he  open  it  to  see  what  it  contained. 
IPS,  that  on  the  aforesaid  packet,  there 
letter  directed  for  Mrs.  02ilvie  of  East- 
whicli  letter  was  sealed  both  with  wax 
wafer ;  and  that  round  the  packet  there 
loose  pajier  of  directions,  in  what  manner 
jdanum  was  to  be  used.  Depones,  that 
he  came  to  Eastmiin  in  the  Wednesday 
K>n,  he  was  carried  into  a  room  where 
dy  Eastmiin  was ;  and  that,  within  a 
Jme  therealVer,  Mrs;  Ogilvie  the  paoiiely 


and  Misa  Clark  came  into  the  room :  that,  at 
the  desire  of  Mrs.  Ogilvie,  he  followed  her  u^ 
to  the  eaiftero  room,  where  Mrs.  Ogilvie  hav- 
ing asked  bim,  If  he  had  brouffbt  any  word  to 
her  from  the  lieutenaut  ?  he  delive^l  to  her 
the  several  particulars  above- nientione<i,  which' 
the  deponent  saw  ber  immetliately  put  into  a 
drawer  in  the  room:  that  he  did  not  see  her 
read  the  letter  at  that  time ;  but  that  she  put 
the  whole  together  into  the  drawer :  that  soon 
thereafter  Miss  Clark  asked  the  deponent  what 
he  had  brought  with  him  |froro  the  lieute- 
nant to  Mrs.  Ogilvie  ?  Or  if  he  had  brought 
anything  with  him?  Heat  first  said  he  bad 
brought  nothing ;  but,  upon  Miss  Clark's  press- 
ing bim  with  great  earnestness,  he  at  last  in- 
formed ber  of  the  particulars  he  had  brought : 
that,  upon  this,  Miss  Clark  said,  that  she  was 
afraid  Mrs.  Ogilvie  might  poison  her  husband. 
Depones,  that  soon  thereafler  Miss  Clark,  in 
presence  of  the  deponent  and  the  old  lady,  de- 
sired Eastmiin  not  to  take  anv  thing  out  of  his 
wife's  hand,  except  at  the  table ;  to  which  he 
answered.  That  he  would  not:  that  the  old 
lady  joined  with  Miss  Clark  in  desiriitg  East- 
miin to  take  nothing  out  of  his  wife's  hand ; 
but  that  the  deponent  was  at  that  time  very 
much  displeased  with  both,  as  he  then  had  no 
suspicion  that  Mrs.  Ogilvie  bad  any  design 
against  the  life  of  her  husband.  Depones,  that 
that  same  night  he  beard  Mrs.  Ogilvje  say, 
that  she  lived  a  most  unhappy  life  with  her 
husband ;  that  she  wished  him  dead  ;  or,  if 
that  could  not  be,  she  wished  herself  dead. 
Depones,  that  the  deponent  supped  with  East- 
miin and  the  rest  of  the  family  that  night :  that 
he  then  appeared  to  be  in  his  ordinary  state  of 
health ;  but  that  sometimes  before,  that  same 
night,  he  told  the  deponent  and  the  rest  of  the 
company  then  at  RirKton,  that  he  had  swarfcd 
or  fainted. on  the  hill:  that,  for  that  reason, 
he  could  drink  no  ale :  that,  upon  this,  they 
called  for  a  dram,  which  he  took >  and  there- 
after seemed  hearty,  and  in  good  spirits ;  and 
Eastmiin  then  said,  that  the  swarf  had  hap- 
pened to  him  on  the  hill  that  same  day.  De- 
pones, that  that  night  the  de|touent  told,  that 
he  intended  to  go  off  from  Eastmiin  early  next 
day,  which  occasioned  their  gettintf  breakfast 
more  early  than  usual :  that  Eastmiin  did  not 
breakfast  along  with  the  family,  the  only  per- 
sons present  at  break  fast  being  Mrs.  Ogi'vies 
elder  and  younger.  Miss  Chirk  aud  the  depo- 
nent being  then  only  present :  that  the  depo- 
nent saw  Mrs.  Ogilvie  making  a  bowl  of  tea, 
by  filling  it  out  of  the  tea-|>bt,  and  putting 
sugar  and  milk  in  it ;  and  that  she  said,  in 
presence  of  the  company,  that  she  was  to  give 
It  to  her  husband,  who  was  then  in  bed ;  and 
that  the  deponent  saw  her  go  out  of  the  room 
with  the  liowl  in  her  hand :  that,  about  an  hour 
and  a  half  after  they  had  liegiin  to  breakfast, 
they  were  told  that  Eastmilii  had  been  sud* 
denly  taken  ill ;  upon  which  Miss  Clark  im- 
mediately run  up  to  the  room  in  whidi  he  was, 
and  soon  thereafter  relumed  weeping,  and  told 
tbem,  thftt  Eaitmilo  htd  got  a  bid  breakfast. 


S  GEORGE  III.  Trial  ofK.  Natm  and  P.  Ogilme, 


IS91] 

Depones,  that  the  deponent  immediately  run 
up  ataira,  where  he  found  Eastmiln  romiting 
and  ourgmg  violently  ;  thnt  he  heard  him  say 
thatne  was  all  wrong  within  ;  and  that  he  had 
got  what  would  do  his  turn :  that  Eastmiln 
called  very  much  for  drink:  that  they  of- 
fered him  milk ;  hut  that  he  would  drink  no- 
thing but  water:  that  he  complained  much 
that  lie  was  hurnini;  within.    Deponts,  that  he 

Sroposed  to  Mrs.  Ogilviethat  a  surgeon  should 
B  called  to  his  assistance,  to  which  she  would 
not  agree,  saying,  That  he  would  be  better : 
and  .upon  ttie  deponent's  renewing  this  pro- 
posal, she  said,  she  would  net  for  any  money 
that  a  surgeon  should  be  called,  as  the  con- 
sequence of  this  would  be,  to  gi?e  her  a 
bad  nsme,  from  what  Miss  Clark  had  snid  of 
her:  that,  upon  this  the  deponent  told  Mrs. 
Ogilvie,  that  Mr.  Meik,  surgeon  in  Alyth, 
whom  the  deponent  had  recommended,  was  a 
discreet  person :  that  he  would  come ;  and 
that  be  would  tell  none  but  her  what  he 
thought  of  him  :  that  upon  this,  the  deponent 
left  her,  she  baring  previously  agreed  that  Mr. 
Meik  slM>uld  come :  that  the  deponent  tliere- 
atUr  set  out  on  his  journey  ;  but,  before  he 
bad  got  far  from  the  house,  one  of  the  girls, 
whose  name  he  thinks  was  Robertson,  came  up 
to  him,  and  desired  that  Mr.  Meik  might  be 
sent  with  all  haste :  that  after  supper,  the  de- 
ponent had  a  conversation  with  Miss  Clark 
concerning  the  suspicions  she  had  of  Mrs. 
Ogilvie*s  intentions  against  her  husband,  in 
which  the  deponent  proposed,  that  they  should 
either  take  Mrs.  Ogilvie's  keys  out  of  her 
pocket,  or  break  open  her  drawers  at  the  back, 
in  order  that  they  might  satisfy  themselves,  if 
the  particulars  brought  by  the  deponent  were 
poison  or  not ;  and  that  this  was  the  only  me- 
thod by  which  mischief  would  be  prevented  : 
that  Miss  Clark  did  not  seem  to  agree  to  either 
of  these  proposals,  and  the  deponent  himself 
had  at  that  time  no  suspicion,  that  there  was 
any  foundation  for  Miss  Clark's  fears  ;  and  the 
deponent  was  confirmed  in  this  opinion  from 
his  having  been  told,  hy  the  old  lady,  thnt  she 
had  gone  up  to  the  ruom-door,  afier  her  son 
and  daughter-in-law  were  in  lied  ;  and  that 
there  was  then  more  kindness  between  them 
than  usual.  Depones,  that  his  wife  had  fre- 
quently told  him,  before  the  death  of  Eastmiln, 
that  he  was  a  tender  man  ;  but  that  he  never 
heard  of  his  having  been  troubled  ivith  violent 
vomitings,  or  purgings,  before  the  day  on 
which  he  died  :  that  he  had  the  appearance  of 
a  tender  man ;  and  that  the  deponent  has  heard 
his  wife  say,  that  he  would  not  be  a  long  liver. 
Depones,  that  at  the  conversation  above-men- 
tioned at  Kirkton,  he  heard  Eastmiln  say,  that 
he  had  been  ill  of  a  cough  and  sore  breast ; 
and  that  for  some  time  past,  he  had  been 
thinking  of  writing  to  doctor  Ogilvie  at  Forfar, 
to  send  him  some  things  :  that  the  deponent 
laughed  at  him  for  talkmg  in  that  manner,  and 
bid  him  take  a  dram.  Depones,  that  the 
drawer  into  which  Mrs.  Ogilvie  put  the  parti- 
culars d«Uyercd  to  her  by  the  deponcnti  stood 


[189! 


in  that  room  in  which  the  depoDent  slept  ihn 
night.  Depones,  that  at  the  time  when  Ale^ 
ander  Ogilvie  the  deponent's  brother-in-law  ah 
rested  the  corpse,  the  deponeot  advised  lieote- 
nant  Ogilvie  to  make  his  escape,  if  guilty ;  it 
which  he  answered.  That  God  and  his  ova 
conscience  knew  that  he  was  innocent.  Dt- 
pones,  that  the  two  pannels  lived  at  the  bo«i 
of  Eastmiln,  from  the  time  of  Eastmila^ 
burial  to  the  time  that  Mrs.  Ogilvie  was  sf- 
prehended  ;  and  that  for  some  time  after  tht 
pannels  continued  to  live  there  ;  but  bow  kNf 
he  cannot  say.  Depones,  that  Mrs.  Ogilvie 
had  been  blooded  the  day  before  £aslimla*i 
death,  or  the  day  before  that ;  and  that  sfai 
had  been  ill,  and  taking  drugs  for  some  tiaie 
before,  as  the  deponent  bad  beard.  Cauu 
tcientia  patet.  And  this  is  truth,  as  k 
shall  answer  to  God.  And  at  reading  over  lbs 
oath,  depones,  that  at  the  time  when  lieuteoast 
Ogilvie  delivered  the  particulars  aboTe-mca- 
tioned  to  the  deponent,  he  desired  bim  to  pat 
them  into  Mrs.  Ogilvie's  own  hand  :  but  did  sot 
mention  the  words  •  privately,*  or  »  by  liendf;' 
and  that  his  reason  for  denying  at  first  to  Aose 
Clark,  that  he  had  brought  any  parcel  froa 
lieutenant  Ogilvie,  was,  *)ecause  he  coostdcrcA 
Miss  Clark  as  a  person  given  to  raise  disseotios 
in  families;  and  because  that  he  had  bM 
desired  by  the  lieutenant  to  put  the  particolaif 
into  Mrs.  Ogilvie's  own  hand.  And  this  is  sb» 
truth.  (Signed)        And.  Stcwast. 

Geo.  Brow.n. 

James  Carnegie^  surgeon  in  Brechin,  rotr- 
ried,  aged  about  40  and  upwards,  being  so- 
lemnly sworn,  purged  of  malice  and  partial 
counsel,  depones.  That  in  the  end  of  .^lay  la»t, 
he  got  a  message  from  lieutenant  0|;ri|Tie  ibe 
pannel,  with  whom  he  is  acquainted,  decline 
him  to  meet  him  at  Colin  ^»n>ith's,  vintner  ia 
Brechin  :  that  the  de|>onent  having  goae 
there,  found  him  in  company  with  one  lieu- 
tenant Campbell  of  the  same  retiriment,  tod 
one  Mr.  Dickson  :  that  lieutenant  Ogilvie  took 
the  deponent  aside,  and  told  him,  that  he  was 
troubled  with  gripes,  and  wanted  to  buy  soma 
laudanum  from  him,  and  at  the  same  time  toM 
him  he  wanted  to  buy  some  arsenic,  in  order 
to  destroy  some  dogs  that  spoiled  tite  game  : 
that  the  deponent  told  him,  that  he  was  un- 
certain whether  he  could  furnish  him  %*uii 
these  things  or  not ;  but  that  he  should  look 
when  he  went  home  :  that  the  depo'ient,  wlies 
he  went  home,  f(»und  he  had  some  of  both,  and 
put  up  a  small  phial  glass  of  l;iu*tanum.  scd 
betwixt  half  an  ounce  and  an  ounce  of  arsniic, 
both  which  he  delivered  next  day  to  tlu*  liea- 
tenant,  after  the  deponent  had  dint^l  mith  kitt 
and  lieutenant  Campbell  next  day  in  Smith's: 
tliat  lieutenant  Ogilvie  took  the  deponent  inia 
another  room,  awuy  from  lieutenant  Campbell, 
when  he  was  to  receive  the  laudnnum  and  tbt 
arsenic,  and  there  the  de|K>neDl  deliverii 
them  to  him :  that  the  price  of  l>oth  was  a 
shilling:  that  the  arsenic  was  pulverised; 
and  lieutenant  Ogilvis  hsfing  iskjed  bow  to 


1R)3] 


Jqy  Incest  and  Murder* 


A.  D.  1T65. 


|»fe|>tire  it,  the  ileponeol  tuire  Inm  direciions; 
Drftoues^  that  be  had  s«itil  of  the  samn  nr^t^tiic 
Iwrm'T^v  '*»  |»^<»|»l4?  t<»r  |«»i9(mifn;  of  r«t«,  «im1 
h<*»rit  iftsil  II  httti  the  iliiyired  eftoci,  licjione^, 
tli'-ii  lie  baa  been  ttct^usturrieili  when  ht*  i^old 
anMfiiic,  to  taki*  receipts  from  low  |^ett|ile  who 
h^Hit;hi  If,  hut  never  fnim  i^efittc'aivn  ;  nnd  as 

ihf  '^ •  "*  knew  lieutenant  O^ilvie,  and  hurl 

a  tr*  )  of  him,  the  ilrjKMient  did  not  ask 

m  n.  _  .  (  him,  Hhhou;r|i,  u hen  the  hi'U- 
i^nsiiit  Mfiuke  dhoiit  it  firxti  the  di'poTient  ti&id  to 
Uim,  We  u*<e  to  ttike  u  reccijn  fur  arsenic: 
ihfit  the  lie  men  a  lit  onsHcred,  8e«  tlmt  if  you 
tiav^it:  addioif  al  ihp  same  lime,  V«ny  liood, 
D«r|»oii(r9,  thai  he  got  hiM  arj^enic  front  a 
«!rit4{^g^JMt  ill  Uiuidce  ;  hul  how  hin^  ii^o  he 
<:aDiiot  sjy,  there  being^  a  small  demarid  for 
aifttt'oic  at  any  titoe.  Vau$a  meniiit  jmtet. 
And  Alt  this  \h  nuih,  a<«  be^hall  ansvi^er  to  God. 
I>r(MMie4,  til  At  he  wrap(»i'd  it  up  in  ihe  tbrni  of 
«  (wnnv«orlh  of  souff  uwilpr  three  pJiper  co- 
fcrs.  ]lf)4on*^M,  thHt  the  arseuic  which  he 
told  a»  ahuve  was  white  arsenic*  Depones, 
that  he  rannr)!  take  upon  him  to  say,  Irotn 
lo*ikint(  tit  arsenic,  whether  it  be  arsenic  or 
tiot ;  nor  ran  he  say  from  the  taste,  for  he 
never  ta^ited  it;  hut  that  he  houg^ht  litis  as 
arienic.  iiiiJ  the  name  marked  upon  it  upon 
the  pack)i^i\  and  heard  from  thi»i»ti  he  sold  it  lo 
lliat  it  hftd  kiFletl  rais,  as  aboye- mentioned. 
Depone «,  npun  n  further  iiiterra^iitoryf  that  he 
Heard  nf  Mr.  (Vilvie  fd'  BaKtmiln^it  death  alter 
Ihe  time  that  he  Mohl  the  Qvsenic  tt»  tlie  lieii* 
feoant.  iMU$auicHtia'  patet.  And  thisis  al»o 
truth,  an  he  fthall  aimwer  tu  God. 
(Signed) 

At.£X.    U01«WLLL.  J  A.  CaHKEGIE, 

Lieutenant  George  Campbell^  of  the  late 
»^^ht^  •ninth  rtH^inient,  iiiitiiarricHt,  agtd  about 
Ittreuty-tiru,  Ih'ui;:  Mdenudy  Hworn^  pureed  of 
oialrce,  pnriial  cumifiel,  aiid  intenoi^ate,  do- 
p>(in««t  That  he  has  known  lit'iitc^nant  Og^ikte 
the  |»aiinel  thffce  the  years  paRt  :  that  in  the 
b^inntngtd  June  Iniit,  as  he  ihiiik<i,  the  pannel 
ealird  f«>r  the  deponent  at  Fiiinhaven,  and  tle- 
«ired  bun  to  ^o  uhmg  with  liim  to  Itrechin, 
liecaiifti'  lieiviinled  ti»  nee  liin  old  hindlord  VViU 
Itam  Fitday,  vintner  ihrre  :  thiit  they  accord- 
iDg^y  Wi*nt  lu  ItrfH^liin,  and  put  uj>  at  Colin 
8mitb*t(«  vintner,  and  the  p»nncl  callfr<)  for 
Jamr^  Csriu^i^ie,  ttm'::|i*riti  Ihrre,  but  bad  no 
eonver«.ition  At  iliui  time  aptiri  from  iht  depo- 
lif'ut  ;  ilif  pannt'l  iiivttt*d  Mr.  Carnegie  to  din- 
jicr,  afiiT  hi^  and  ih«f  drpoo^nt  Bbould  return 
from  the  ii>«hui);,  which  they  wvrc  ^iii^  to  uext 
4mj*  Ami  acrofdiiii^ly  Uv  came  to  dinntfr^  and 
the  )>«niiel  and  Mr.  Cjirnri^^ie  went  out  after 
dinniT  to  afi(>tb«Tr  rmmi,  and  had  aorue  private 
«:un?i<rii..iUfin  tnr  some  few  mmutea^  and  tiien 
t  hack  tu  the  deponent ;  and  the  depo- 
i  the  pami»>l  ^*nit  tu  Pbinhaveu  that 
injjiii,    (I   briiijj    Frntiiy'j*  nij^lit,  :h   '    v  * 

Iwitti  tbf  drponeiit  SaturtUy  ami  Hir 
kod  lell  hiiri  on  Monday;  and  on  lU^      ....^.,..y  , 
ftif  tb«  dvpoiieiit  heard   uf  Mr.  0|plTi«i  of  [ 


\ 


£ajitit]i1a*a  dealb.     C<tr/ya  identic  ptiteL    4 1 
>hls  ifl  truth,  as  he  shall  Aiiairer  to  God, 
^AMts  Ferguboh.  (Signed) 

Patrick  Dicktoftt  merchant  in  Brechin,  mar* 
ricd,  aged  sixty  and  upwards,  beintr  Kolemnly 
sworn,  purged  of  mahce  and  partial  counsel^ 
e^aumied^  knd  interru)>'Qte,  deponts,  That  when 
the  paimel  Mr.  GgiUie  was  in  prison  at  Forfar, 
the  deponent  went  to  visit  him  ^  aud  he  desired 
the  deponent  lo  go  to  James  Carnegie,  surgeon 
in  Brechin,  and  talk  to  liiai,  thai  be  might  not 
be  imptised  on  by  any  body  ;  and  the  deponent 
accordingly  went  and  conversed  with  Mr» 
Carnegie,  who  informed  him  that  he  had  sold 
the  panne)  some  laudanum  ami  some  arsenic, 
for  both  which  he  received  a  »hillin^  ;  and  the 
deponent  returned  to  Forfar,  and  com  municateil 
lo  ihe  pannel  what  Mr.  Carnejn^ie  had  said; 
upon  which  the  pannel  seemed  to  be  under  some 
concern,  and  seemed  desirous  to  speak  witli 
Mr.  Carne^fie,  without  either  confessin^^  or  de* 
Dying  to  the  deponent  that  he  bad  bought  the 
arsenic,  for  be  had  only  acknowled^eil  buying' 
the  laudanum  on  the  Saturday  before,  when  the 
deponent  had  been  with  him  in  prison  ;  and 
the  deponent  told  him  that  be  bad  some  bust-^ 
ne«5  on  hand  which  hindered  him  to  send  Mr. 
Carne^^ie  to  htm  i  and  the  pannel  desired  itie 
depanent  to  ti^ll  the  sheritf  that  he  wanted  to 
see  bim,  to  amend  someitiing  in  his  declaration 
with  ree*i4rd  to  the  laudanum  which  the  pannel 
received  from  Mr»  Carnegie.  Cnuia  scicntim 
pateL  And  ail  tliis  is  truth,  as  he  shall  anairef 
to  God,  (Signed) 

AsD,  Pnr!4GL£.  Pat,  Dick^oir. 

Pttcr  Mcik^  surfcreon  in  Al)tb,  unmarried^ 
a^ed  about  twenty-seten,  being"  Rolemnty 
sworn,  purged  of  malice  and  partial  counsel, 
eiramined,  and  interrogate,  depc»nr$i,  That  U|>oa 
lh«  day  that  Mr.  Oi^ilvle  of  Eat»tmiiti  died,  the 
deponent  was 'sent  for  as  a  surgeon  to  him : 
that  he  was  deail  before  he  came,  as  the  iie|Hi« 
neni  was  iuformed,  about  two  hours:  that  im- 
mediately upon  the  denonenl'a  arrival,  he  wai 
carried  u]»  by  a  servant  to  Mis,  O^ilvie  the 
pnnnePH  room,  where  slie  was  Kitting,  aud  sli« 
in  '     I  be  in  jifreat  ifricf  and  concern  foe 

I  i's  deaih,  and  desirrd  the  deponent, 

tii)4L  v,Mu».  ver  he  mi{:bl  think  lie  discovered  lo 
b«  the  cause  of  her  hn^btind's  death,  ibat  l»e 
would  conceiil  it  from  the  vvorhl.  Aud  depones, 
there  wa^  nobody  els*:  present  with  the  depo- 
nent nurl  the  piinnel  at  that  time:  that,  U[ioii 
goiii;^  to  the  room  where  the  corpse  lay,  ami* 
ntU'rward*!  ^oing*  ont  of  the  house,  he  met  witti  ^ 
Mr.  Oj^lvie  the  pannel,  who  went  up  with  him 
to  the  room  w  lie  re  the  corjw&e  lay,  and  appeared 
to  be  in  great  ^'^rief  uud  concern  for  his  brother  r 
thni  ^ve  Of  six  dnv^  nfier,  he  was  called  iipoa 
i.^  '     '     ■       '  *  '    ;  and^  upon  in-* 

M  »  and  a  part  of  4 

':ini,   .luii  1111  iooi^ue  swelled  j 
ral  ni^c,  and  cleavth^    to  the  | 

...■.i    .   M-,  i >;lt»  and  no  part  of  his  tongue 

frw  lieyond  hia  hps,  though  it  did  come  oyt 


1295] 


5  GEORGE  IIL 


IVial  qfK.  Nairn  and  P.  Ogilvie^ 


\m 


teyond  bis  teeth  :  that  be  bti  obMired  the 
symptoms  of  the  Dsils  and  the  breast  to  occur 
atter  a  nauiral  death,  but  nerer  that  of  the 
tongue  at  the  same  time,  thouji^h  be  has  ob- 
f^rvcd  the  jonj^ue  swelled  without  the  other 
symptoms.  And  beings  interrogate.  Whether 
lie  understood  these  symptoms  to  be  the  effect 
of  poison  ?  de|K>iics,  that  he  is  not  so  much 
acquainted  with  the  effects  of  poison  as  to  have 
formed  a  judi^ment  whether  that  was  the  cause 
in  this  case ;  but  he  was  led  to  make  that  con- 
jecture from  the  notice  {^iven  him  by  Andrew 
Stewart,  who  had  lohl  him  that  the  defunct 
uas  liiought  to  he  poisoned,  and  from  the  cau- 
tion given  him  by  Mrs.  Oplvie  the  pannel,  to 
conceal  any  thin|rthat  mi'^ht  discover  the  man- 
ner of  her  husband's  death.  Depones,  that 
lAlexander  Oj^ilvie,  the  defunct's  youngest 
brother,  told  the  deponent,  that  he  was  sent  for 
to  open  his  brother's  body  ;  and  Gilbert  Ram- 
say, surgeon  in  Coupar,  being  also  there,  the 
deponent  and  he  ngrml  to  open  the  body  ;  but 
Alexander  would  hot  agree  to  it,  unless  doctor 
Ogilvie  at  Fitrfar  was  there  ;  and  as  the  depo- 
nent and  iVIr.  Ramsay  could  not  stay  till  he 
came,  it  was  laid  aside.  l>epones,  that  neither 
of  the  pannels  made  any  objection  to  it;  and 
that  Alexander  desired  them  to  take  a  super- 
ficial view  uf  the  body ;  which  they  did,  and 
discovered  the  symptoms  aforesaid.  Causa 
scirntia  patei.  And  all  this  is  truth,  as  he 
shall  ans%%er  to  God.  (Signed) 
And.  1'ringle.  Peter  Meik. 

Gilbert  Ramsay,  surgeon  in  Coupar  of  An- 
gus, marritd,  aged  about  38  years,  being  so- 
Jemnly  sworn,  purged  uf  malice  and  partial 
counsel,  and  interrogate,  depones.  That  he  was 
sent  for  to  Eastmiin  about  five  or  six  davs  after 
tlie  laiitPs  death,  and  was  desired  liy  Alexander 
Ogilvie,  his  youngest  brother,  to  inspect  his 
body  alonir  wiili  the  [U'cceding  \%itnej>s  ;  and, 
upon  looknig  at  it,  they  ohscrve'l  the  nails  and 
part  of  the  breast  discoloured,  and  his  tongue 
swelled  :  that  he  has  observed  the  (irst  two 
sytnptoius  to  happt-n  in  a  natural  death,  in  con- 
seipicnce  of  pnire!';u'tion  ;  but  has  not  observed 
the  last  symptom:  that  these  symptoms  are 
owing  to  something  very  acrid,  and  made  the 
deponent  suspect  that  he  died  of  poison:  that 
his  lips  were  very  little  swelled,  hut  more  dis- 
Cfdoured  than  by  a  natural  death  :  that  the  de- 
ponent had  hoard  suspicions  of  poison  before 
he  came  there.  And  being  interrrogate  for  the 
pannels,depones,thut  he  had  observed  the  tongue 
swfl'nl  even  in  a  natural  death,  but  not  to  that 
degree  it  was  in  tliis  case.  And  depones,  that  if 
he  saw  a  diad  body  with  tinse  symptoms, 
though  he  had  got  no  notice  ol'  any  suspicion  of 
poison,  he  would  suspect  it  from  these  appear- 
anees.  And  being  intcrrogato,  Whether  all 
these  symptoms  iri:ght  not  happen  in  a  bilious 
colick  'f  depones,  that  the  great  swelling  in  the 
tongue,  and  discolouiing  in  the  lips,  would  not 
haiipen.  And  being  interrogate  fur  the  pan- 
uefs,  Whether  all  the  usual  symptoms  of  poi- 
son happeoed  in  this  case  ?  depones,  that  be 


canuot  answer  that  question  with  any  certaiuij, 
never  having  seen  the  boily  of  any  other  perMs 
who  died  of  poison.  And  being  further  iaicr- 
rogate,  depones,  that  the  usual  syoiptoms  tbal 
occur  io  poison  by  arsenic,  are  vomittog,  and 
evacuating  downwards,  and  a  great  swelhagin 
the  tonjpue,  and  the  blackness  in  the  brosL 
And  being  further  interrogate,  dejpooes,  tbit 
there  was  no  apfiearance  of  ulcers,  m  this  caie, 
either  in  the  tongue  or  tlie  lips.  I>epoiiei, 
that  tlie  deponent  propose<i  to  open  the  b<>dy ; 
but  be  was  opposed  by  Alexander  Ogilvie,  m 
account  that  doctor  Ogilvie  from  Foxfiu'  »« 
not  there ;  but,  as  far  as  the  deponent  knuai 
it  was  not  opposed  by  either  of  tJie  paoock 
And  further  depones,  that  he  believes  ererj 
thing  in  the  body  wuuid,  aiier  being  so  Iti^ 
dead,  be  in  a  state  of  putrefaction  ;  so  that  be 
doubts  if  the  poison  would  have  been  certtistr 
discovered,  though  the  body  had  been  opeor^ 
Causa  tcientia  patei.  And  this  ia  truth,  u it 
shall  answer  to  God.    (Signed) 

J  AaiEs  Ferguson.        G  iuieut  Raiuit. 

Doctor  John  Ogilvie^  physician  in  Forfir, 
aged  48  years,  married,  being  solemnly  s»m. 
purged  of  malice  and  partial  counsel,  sod  it- 
ter rogate,  depones.  That  he  beard,  that  the  bte 
Eustmiln  died  upon  the  6th  of  June  last;  loi 
that  a  few  days  a/Ur  that,  the  deponeitwv 
desired  by  the  sheriff- substitute  of  ForfsnhiR, 
to  go  to  Eastmiln  to  inspect  the  <n>rpse  sf  ik 
defunct:  that  the  depouent  forthwith  obcf* 
ed  their  order,  and  arrived  at  £astmihi  vfm 
the  13tli  of  June  last,  about  nOon :  that  spii 
bis  arrival,  Alexander  Ogilvie,  the  defniKi'i 
brother,  desired  the  deponent  to  ao  and  inspec: 
the  corpse,  which  were  then  lyiug  in  so  oit* 
house  :  that  he  found  the  corpse  in  itt  gn^f- 
clothes,  and  in  a  coffin ;  and  having  iospctiri 
the  body  he  observed,  that  the  face,  the  armi,&Bi 
several  other  parts  of  the  body,  were  Itlackib' 
livid,  and  that  the  nails  were  riMnarkably  bbd; 
and  us  to  the  tongue,  it  was  lucked  fast  bjibf 
jaws,  so  thai  he  could  only  observe  a  small  pvt 
of  it,  which  projected  beyond  the  teeth,  vluch 
part  being  the  tip  of  the  tongue,  he  obsenrfdii» 
be  white  and  rough,  and  of  a  very  unuiuil  ap- 
pearance :  that  the  breast  vi-as  white,  and  ik 
lips  pretty  much  of  a  uatural  colour :  tbatfiniO 
the  appearances  above  described,  he  could  dras 
no  conclusion  as  to  the  cause  of  the  defuacl'f 
death ;  as  almost  all  these  ap))earanc«s  odgb 
have  arisen  from  the  putrid  state  the  body  vH 
then  in ;  and  that  the  only  tliiug  that  appMff', 
extraordinary  to  him,  was  the  appcarantt  ^ 
the  tongue  above  describe tl :  that  the  deptat*^ 
had  some  inclinatioa  to  have  opened  tbf  boiii 
and  if  the  two  surgeons,  who  he  heard  bidi^ 
Fastmiln  that  morning,  had  been  there,  be^ 
lieves  he  might  have  done  so ;  bat  as  B^ 
were  gone,  and  as  the  deponent,  in  his  ovs^ 
nion,  thought  the  body  too  inucb  putreBed,**^ 
opened  wiih  safety  to  the  operator ;  and  ii|j 
was  likewise  uf  opinion,  that  in  si^  a  tfi*' 
putrefaction,  no  certain  signs  couM  hsfff  ^ 
discovered  of  the  cause  of  the  death  by  if^ 


1297] 


Jbr  Incest  and  Murder* 


A*  D.  1705* 


the  boiiy,  (lie  deponent  decUntd  to  do  it.* 
Depone«f  iftnt  the  ap|>efiratit:e  of  tlie  tongue 
More  desci  ibed^  wis  not  iiuch  i«  bajiii^DS  in 
COinuiau  ileathSf  but  such  aa  occurs  troin  coo- 
vaUiotii*  or  olber  strong  cautes.  D«»p«ne«, 
that  UeuteDanI  (^^ilvlp^  the  psnnel,  neither  ite- 
tired  tior  forbid  the  deponeni  to  inf^pect  the 
corpse ;  but  he  fvai  present  with  the  depunent 
wimt  he  insf^ecled  tt  as  a&re&aid.  Cataa 
Mckniia:  ptiict.  Ami  tim  is  the  truth,  aa  he 
[•ball  answer  ti>  Givd.     (SMgnadJ 

And.  PaiN(;i.E,  /mm  OotLVJc. 

RoUrt  Sirtith,  surgeon  rn  Edinburi^li,  a(^ed 
50  yean  and  upwardx^  a  widower,  %*ho  being 
•olmnnty  BW'iru,  purifed  of  malice  and  partial 
counsel,  acid  examined,  de)K»nes,  That  be  bad 
«fioe  occasion  to  attend  a  patient^  being  a  wu- 
Lilian,  near  OrmistoDf  who  liad  ^ut  an^enic  and 
<fied  of  it,  as  the  deponent  rerily  belief  ei :  that 
the  deponent  went  and  saw  the  woman  about 
two  hours  after  %he  had  taken  the  arsenic  in 
sotne  potUire,  as  she  told  him  :  ihal  the  depo- 
netit,  when  lie  came,  found  her  seized  with  a 
violent  TOmiting  and  a  purj^ing:  that  she  coua- 
Alained  of  a  buniioi^  heat  in  her  stomach  nnd 
Dowel;*,  and  hnd  a  gr^at  thirst,  and  drank  fre- 
<|tieaUy  of  milk  and  water:  that  tlie  dejwoent, 
mfier  Blading  some  time  with  her,  went  away, 
«nd  ftOer  a  few  hours,  returned  to  her  agatD» 
iwhen  he  was  informed,  the  before- mentioned 
pymptoms  bad  cnntinued  upon  her,  that  is  to 
say,  the  vomiting,  purjinnfTv  paiOi  and  drought; 
ibit  she  soon  thereafter  died,  having  lif  ed,  as 
the  deponent  thinks,  about  nine  bonm  after  she 
took  the  arsenic.  Depones,  that  the  deponent 
next  day  inspected  the  detid  body  of  the  fore- 
said  woman,  and  could  dis^cover  nothing  exter* 
aiatly  u;>oii  the  body  different  from  the  appear- 
ances nfier  a  natural  death  ;  but  that,  upon 
Opening  the  body,  he  discovered  the  ttoaiacb 
(id  guts  to  lit!  red  and  inllamed,  and  tbesto* 
mat:}!  appeareil  to  be  gangrened,  and  in  parta 
nf  the  Htomkich  he  discovered  some  arsenic. 
I}ep4mes,  that  at  the  time  the  woman  bad  re- 
ceived Ihe  arsenic,  as  above  deponed,  a  child 
had  likewise  taken  a  upoonful  or  two  of  tJ»e 
[^ttage,  which  occasioned  I  he  child  to  vomii, 
ind  thereby  throw  up  the  arsenic,  ay  he  be- 
lieves, so  that  the  chihl  recovered.  Being  in- 
i«rrogJite  for  the  pnoneU,  de|>ones,  that  a  per- 
on  may  be  seized  with  a  vomiting,  tnternal 
>iin  and  drought,  wittiout  having  received 
ifaeoic ;  as  thetie  sy mploras  may  occur  in  a 
^Ibut  colic  and  other  caae>t.     Canta  tcientU 

er     And  this  in  the  truth,  aa  be  shall  an- 
iwer  to  God .       (  Signed) 

Atto.  pRiNOtjc.  lloDCBT  Sttfrm. 

Oeorge  Ciijn/i6f//,  aheriff  substitute  of  For- 
^»  ageil  teveniy  and  up^vards,  uUuttu^  who 
^Og  sok*muly  sworn,  purged  4if  ruahce  and 


^  Sm  Mr.  Dum^l^B  obaervaliooi  oo  ibis 
iff  in  hit  Teeatiie  op  vmrious  braocbei  of  the 
[>ifiiinal  Law  of  Scotland,  chan.  29,  p.  &i5, 
bod  aee  a  note  to  tli«  Caa6  tif  ilory  filaodyi 

mt,  roi.  la,  p.  aia. 


partial  counsal,  and  ejcamincd^  deponta,'^ 
upon  looking  at  the  two  declarations  now  > 
hibited  t«»  him,  emitted  lK.'rore  bim  by  Mn^ 
(>;filiie  the  pannel,  ainl  other  two  t»y  (^atrick  - 
Ogilvie  pannet,  that  all  these  were  emitted 
freely  before  htm,  and  fuitlifulTy  taken  down 
fnim  their  own  mouths,  and  siih»cnU'd  by  tliein 
before  the  deponent.  And  alsii,  that  the  depo- 
nent^s  name  adjecied  thereto,  is  his  subjicrip- 
li«m.  Depones,  that  he,  aa  sheriff-substitute 
of  tbe  county  of  Forfar,  w«nt  to  Easlmitn 
u(ioi»  the  tirsi  of  Jiiiy  IhM,  in  iirder  to  search 
for  papers  i>r  letters  heJonsring  to  any  of  tha 
pannels:  he  ihe  deponent  dnl  litid  in  a  trunk, 
or  drawer,  hecHonol  say  wUich,  the  letter  nrtw 
exhibited  lo  bim,  n»arked  by  his  hand,  and  that 
of  John  Ure  bis  clerk,  on  the  dny  aforesaid. 
And  another  letter  being  exhiliited  to  liun,  with* 
out  dale  or  siiliscriplioo  by  the  writer  thereof^ 
and  with  a  doct|uet  on  the  Imck,  vigned 
George  Hpalding.  and  another  doc(|uet  below, 
8i|fni^  Anne  Clark  and  Alexander  Boawell,  de* 
panes,  that  to  the  b«^t  of  hia  memory*  b« 
lb  inks  be  received  the  said  letter  inchmeal  in 
one  wrote  by  Alexander  O^ilvie,  the  paiinel*« 
brother,  addreaseii  to  the  deponent  And  a 
third  letter  beiog  eihibit  to  him,  feigned  Ketty 
Nairn,  with  a  doequet  on  Ihe  back,  t^igned 
A  line  Clark,  Alexander  Boswtrll,  depones,  thai 
he  found  the  said  letter  ia  one  of  tbe  reposi- 
tories at  £a<»tiiuhi,  when  be  made  the  search 
above* meiuioned,  Cama  Kiendtt  puiet.  And 
this  Ls  Irulb,  as  he  shall  aofiwer  to  i^od. 
(HU^md) 
Gils.  Elliot.  Ufio.  Cammiell. 

John  Ure,  sheriff-clerk  of  Forfar,  aged  forty 
years,  married,  being  solemnly  swotn,  purged 
of  malice  and  partial  counsel,  nnd  iuiei'rngnte, 
depones^  Tliat  the  four  decliimtions  now  exhi- 
bited lo  him,  two  liy  Mrs^  Ugilvie  paonel,  and 
iwo  by  Patrick  Ogilvie  pannel,  were  all  freely 
emitted  before  the  preceding  witnetiit,  and  in 
preneoce  of  the  deponent,  aud  all  signed  by 
birn  the  deponent,  by  Ihe  sheriff-substitute 
George  Campbell,  and  tlieoannels.  Caumicien* 
ttm  putet.  And  ibia  ia  tlie  truth,  as  be  shall 
answer  to  God.  (Sigrtfd) 

Gtus.  Elliot*  John  Uhr* 

The  three  Letters  and  four  Declarations  be- 
fore deponed  lo  tvere  read  to  the  Court  tiad 
Jury,  and  of  which  the  tenor  foUowa  i 

Firtt  htitcr, 
*'  D^  Captain 

*-^  I  was  Mirrie  I  missed  you  this  ^i^y^  I  Ml 
al  ihe  water- side  a  long  time  ihi&  fortnoon  \  J 
Ibought  you  would  have  cumed  up  here;  if 
you  had  as  much  mitnl  of  itie  as  I  have  of  yi^u, 
you  would  have  couietl  ep,  tho*  you  bad  bul 
hiayd  out-by  as  there  was  no  ui^  for  that, 
there  is  more  rcMiins  in  the  house  then  one. 
Gud  knows  the  heart  that  i  have  this  dny  aud 
iuMtead  of  being  better  its  worse,  and  not  in  my 
power  to  help  it*  You  are  not  minding  the 
thing  Ibat  I  said  to  you,  or  you  went  out  her« 
and  wbai  1  wnvlt  for.    Mmi  1  liar«  mx  tasud 

40 


Trial  2/*  JT.  \mn  mad  P.  OpHe^ 


Su<md  Letter. 
**  I  rtcnvtd  jmxr%  javt  dov  ;   I  ua  very 

lJbiD||f  69old  git e  Bie  ^cat«r  p4«Moi«  then  M 
bene  cpT  ««vi  bm|^  wdl;  Mn.  l»p«dcB  vm 
wll«j  4Hif  ert  of  a  ^oflffator  Uct  aai^  aad  xi 
in  »  f «nr  f^tmt^  «raj ;  Mr.  hfAikn  tboo^  it 
■Mdlftu  u»  irrite  you  m  1  bare  «r«le  jtmb:  « 
fer  tkftt  yoii  write  me  about  ■•▼  bo!ly  dM- 
trioK  anjf  ikwcww  yoo  need  aat  be  afraid  of  that 
about  %ny  tbio^,  for  I  an  dctrviad  Bot  to  mind 
any  ibinff ;  we  ahall  eeDd  to  jroa  when  Willie 
aod  Cbkireb;  eo»e>  op,  bot  id  tbc  meaA  tiioe  1 
tbiak  %4a  oiay  aeod  one  Hoodaj  to  lee  and  to 
lot  oaliere  bow  ytm  are;  tbe  pain  will  not 


!  f»r  me :    1  bate  no  more  tiine  to 

bot  mv  beat  reepeeta  to  your  fliK>tber  ia  all  fram, 

—IK  W  youri  while,  Kcmr  Nask.'' 

**  OUnkUrie  Weenadmy. 

Third  LeUer. 

**  1    reeved    yonra,    and   aa   yon  |irapoie 
linn  thif  day  eight  4ayf,  5ir.   Hpaldiogr 


tbioke  it  proper  that  hi  runa  an  ezpreea  to 
Bdinborgh  to  my  uncle,  which  1  think  very 
ri^bt,  and  till  you  heare  the  coofequanoe there- 
of, I  think  you  better  not  truit  any  writer, 
which  you  ahall  bear  the  moment  the  exprem 
c«Nne«  back  ;  aa  I  lee  you  mean  notbini;  bot< 
what  10  K<friteH,  you  may  expect  noibing  elae 
•t  my  hand,  and  teJI  wee  aee  von  heare  if  all 
with  rfini|i'*  to  you  and  feamiiy — ^D**  8*"  your 
mtMit  litiriiblf  urrv  Kettit  Naik.n." 

••  Otfnkiiry,  Jan.  4.  1765." 

Adtin-H-^ti  on  the  l>ack,  **  To  Thomat  Ogilvy, 
etq.  of  KaMtmiliJ." 

First  Df^;LAkATioN  bt  Katharine  Nairn. 

Forfar,  \\  June,  1765.  In  presence  of 
Otf-orKi-  ( :arit|il>«'ll,em|.  HberifT-sabttitute,  Com- 
peared Katharine  Nairn,  lawful  daughter  of 
the  ilf  rfaN«;i|  hir  Tliornafi  Nairn  of  Dunsinnan, 
lMironi't,aiid  rHict  ofihedrreaited  Thomat  Ogil- 
vie  of  KHftlrniln.  wliolieinfT  examined,  dedarea, 
That  lii'iiti'nanl  pHtrick  O^^ilrie  was  at  East- 
tnilii  when  iibe  waa  married  to  liis  brother,  and 
coniiniKd  tiiercf  as  bis  prO|ier  lesidcnce  till 
ivitliin  tbcM*  tlircf;  or  four  weeks,  when  he  \ei\ 
aauic,  fis  bi«  brother  and  he  did  not  agree. 
I'lint  the  f{veniii<;  Patrick  Ogilvie  left  Eastmiln, 
the  diclurant  wrote  biro  a  letter,  which  she  sent 
by  Ivlixalietli  Sturrock,  one  of  tbe  maid-ser- 
VHntN,to  Little  Forlber,assbe  was  going  there, 
at  leant  about  a  guu-sbot  fiom  Little  F(»riber  for 
some  v%  liinky  from  one  Itobert  Easson.  Declares, 
that  Nb<:  dill  not  write  any  letter  to  said  Patrick 
thfilvii'  when  at  Glenkilrie,  nor  to  be  sent  him 
to  one  Jidin  Mpslding's,  nor  to  Glenkilrie.  De- 
dsrrN,  that  on  Tueaday  before  her  husband's 
death  she  wai  ictidiDg  aaid  £liMbetb  Sturrock 


[ISBO 

tn  lltib  wiib  aase  yaim,  wbca  abn  wimi  a 
iaOcrbybtr^Atlifcr  to  amd  PMhcfcOyisii 

ff\mm€  to  aana  af  his  sbina  sbo  hod  baaa 

tbc  case  cf  AMdmv  Stewart,  aod  tbai  abe  gm 

j  next  daw  abe  got  n  lanre  to  ber  VAter  by  aid 
!  An^mr  ibrwait,  n  aasicbaai  in  Alytb,  wbs 
vaa  (ooua^  to  Easioiifai  however,  nod  thai  ii 
;  woa  the  aAcraaon  of  tbe  ^v  hcliwa  bar  ba^ 
baod  died.  That  Andrew  tilcwart,  hf  a  rfribs 
letter,  hroogbt  ber  two  dosca  af  sola,  and  a 
amaU  pbtal  gla»  with  a  Jiitie  laodannm ;  and 
that  the  letter  waa  bot  a  quarter  of  a  sbcct  ti 
paper,  eontaining  mostly  directions  aboot  the 
saita,  and  bow  moch  of  the  landanun  to  take: 
but  wbetber  tbe  letter  waa  opened  or  acalei 
abe  does  not  remember.  That  beTure  Patrick 
Qgilrie  left  his  brother's  house,  she  naked  km, 
any  time  he  waa  at  Alyib,  to  boy  for  her  aa4 
aend  to  Eastmihi  two  dosra  of  aaiu  and  n  lialt 
laudanum,  as  she  slept  very  ill:  that  whsa 
Andrew  Stewart  delivered  the  letter,  abe  read 
same,  bein^;  only  a  direction  as  above,  and  afWr 
laid  the  salts  and  laudanum  into  n  drmvcr,  lil 
she  should  use  same ;  and  that  abe  took  aaa 
of  the  doses  of  salu  on  the  Friday  aAar  her 
husband's  death,  and  the  other  on  tbe  SatOrdsy ; 
and  on  the  Suoday  and  the  Monday  nigMi 
she  look  laudanum  each  night,  and  aa  abe  M 
not  use  the  whole  laudanum,  abe  delit ered  hadk 
the  glass,  and  tbe  remainder  of  laudanum,  H 
the  said  Patrick  Ogihie  on  his  return  to  Emi* 
miln,  aAer  his  bruther^s  death.  That  on  Than* 
day  momiog  the  sixth  of  June*  her  bushaai 
being  distreased  the  night  hefiMrp,  aad  nsaay 
dajrs  preceding;  and  that  morning  bo  oaah 
plained  of  a  sbortoeM  of  breath,  and  that 
through  tlie  night  be  liad  beeu  distreased  witb 
it;  she  therrfure  gave  bim  his  tea  iu  bis  bed; 
and  that  when  the  rest  of  the  family  were  at 
their  tea,  she  filled  up  a  bowlful  for  ber  bos- 
baud,  which,  uith  a  bit  of  hard  biaket  from 
Dundee,  she  carried  blraigbt  from  the  km 
room,  where  tbey  were  at  breakfast,  up  stain 
to  ber  husbaoda  room,  and  gave  him;  and 
that  she  took  tbe  bisket  out  of  a  basket  staad« 
log  OD  a  by -table  in  the  room,  aside  the  family 
then  sitting  at  breakfast ;  but  that  she  did  ast 
go  into  any  closet  with  the  tea,  before  gi? iogit 
to  ber  husband :  that  she  never  heard  from  ber 
busliand,  nor  any  person  else,  that  he  blamed 
tbe  tea  for  bis  illness.  Dedarea,  that  Eliza- 
beth Sturrock  (;ot  so  much  of  the  tea  Mr, 
Ogjlvie  left,  as  be  did  not  drink  it  «Mit,  and  also 
got  another  bowl  of  tea  after,  both  whicb  »bf 
gave  ber  out  of  ber  own  bands.  And  tbissht 
declares  to  be  truth.  Kettt  Ogu.vie. 

Geo.  Campbell.        John  Ure,  Clk. 

Second  Declaration  by  Katbabine  Naoii. 
Forfar^  15  June,  1765.  In  presence  of  Ihl 
aaid  George  Campbell,  esq.  sberiflT-subatitolih 
Compeared  the  said  Katharine  Nairn,  akto 
Ogilvie,  who  being  re-ezamiueil,  dedaw^ 
that  before  tbe  lieutenant  left  Baalguta,  ahi 
heard  bim  lay  that  he  hid  belh  Mill  m^ 


1301}  fft  Incest  and  Murder. 

HiMmnnm  m  i  ctieirt  thst  be  brou^l  frotn  the 
Mut-lnditfi,  oDfi  that  she  satd  %he  would  be 
ohli^  to  hitn  tor  h  iiltle  of  tli«  nails  ftnd  Untla- 
mmmf  usbe  hud  mucli  need  tl>«reor. 

Kettt  OfitLTtfi* 
Geo.  Caxfbell.  John  Uas^  Clk. 

tmn  DtcLARATTON  iiT  pATnicit  Ogiltii. 

Forfar,  U  Jurip,  1765.  By  George  Cjioip- 
Ml,  «q-  iheriff-sulistitiite  of  FoHinhire, 
Cornpenred  Uciitpntitit  Patrick  Ogiit^ie^  of  the 
t^ubvv-nitjth  rt^nMient  of  furit,  wlio  being"  exa- 
'  ii  rps.  That  so  farns  he  rememberB, 

^:«coitniry  fromnbrottd  in  Jaouary 
niid  ihat  hffi  ftrtticipnl  residence  woi  at  tlie 
miln   of  Gl«fnyn»T    hh   lirather    Thomas 

jiIfic**  house,  ami   that  he  kit  that  place 
about  Ihrete  weka  a(;o,    Tlmt  the  reason  lie 
l^tti  was  on  nccoiint  of  lorne  drytiens  betwixt 
Im*  brother  and  htm,  occastoijifd  by  some  sur- 
mtapaor  reportw  in   tUe  country;   hut  thoug^b 
these  liHtJ   not  ItapiH^ned,  he  was  detef mined 
not  to  hlsix  longer  ab^Hit  hh  brother'^.     That 
ilDee  leaving  aame  he  h^n  Itnd  fin  fixed  rest- 
4knee,   hut  haii  been  pun^  ahoiit  »eein^  his 
friends  und  ohi  ncqiiriintances.     Dertares^  that 
erentDK  he  lefi  hi^  brother'*  hotise,  he  we«l  to 
Mr,  Hhaw's  house  at  Little  Forlhpr,  and  when 
walking  by  thp  water-sidi*  there  wiih  Georsre 
Maw«    £h/at»eib  Stttmich,  a  servant  of  his 
^tber  TUomns  tJ^^Mlvie's,  broaght  hitn  a  letter 
iroill  Mrs,  t>L;iUi€  Uh  brother'^  lady,  the  eoit- 
•01111  of  which  wttre  desirint^  bim  to  relarn  to 
hts  brtHhcr^K  house ;  and  (hat  he  ffent  a  Ti^rb;il 
aiena^i  h«*  wan  not  to  return  at  that  lime,  h» 
iw  then  ifiteoded   ^oinir  the  bnsrlh   of  boron 
fteid*a  on   a  riMt.      Decbres,   that  the   next 
^y,  when  at  LUfle  Fort  her.  be  received  an- 
otGer  letter  from  Uh  brother  by  James  Millam, 
the  con  leu  tn  of  which  were  to  the  same  porpoie 
M  Mrs,  O^ilvie's  whicii  James  MilUm  knew. 
That  some  days  aller,  when  at  Glenkilrie,  he 
Y«eetved  another  teltpf  from  said  Mrs.  Ogitvie  ; 
but  wiio  was  the  bearer  of  it  be  does  not  re- 
foember,  nor  does  he  remcnibcr  if  be  wrote 
any  answer  to  that  tetter.     Declares,  that  he 
sraa  in  Alylh  the  Tuesday  bofore  his  brother** 
death,  wh^-n  he  received  a  third  lelter  from 
Mrs.  Oi^ilvie  by  the  aforesaid  Eli-/^»eth  Slur- 
rtf>ck,  but  to  wbtch  he  returned  no  answer  in 
writing.    That  the  said  evening  of  Tuesday, 
b«    gave    (0  Andrew  Stewart,  merchant    lu 
Alyth,  his  brother-in-lawj  a  small  open  note,  bv 
WiV  of  wrapper  or  direction   round  a  small 
nhml    glass  in   whicli   were   some    drop*    iH* 
kudanurn,  and  in  the   wmpver  two  doses  of 
BaltA  fohled  close  by  the  glass '*  atid  that  the 
wrfft«  in  the  note  or  wrnpj>eT  projierly  eontttined 
^reett9tif  for  Mrs.   Ogilvie   how  'to  use  the 
Im  :Tml,  so  far  as  be  remembers,  wa« 

U)  Jitef-n  or  fifteen  drups  ftt  ft  time, 

Tbal  d\:  m%  he  told  to  /1tidr»W  Slewirt,  and 
tbat  it  was  for  Mrn.  Ounlvt**^  own  projHjr  use, 
«Dd  10  Hdifer  it  to  n;'  '  '■  \  but  did  not 
ilnfrv  hifu  lo  do  it  p.  to  In  nobody 

W^  him  dehvcr  il,  oniv  •     him  to  be  t;ure 

10  Miff  h  to  bertetf*  ^   Ndtber  did  be  dtiliftr 


A.  D.  1765. 


r^ 


a  sealtHi  letter  to  Andrew  Stewart  at  the  ti^ 
far  Mrs.  Ot^ihie.  That  tbc  said  Imidantiin  «i%^ 
salts  he  brought  from  the  Eiist-lmhes  wMT^ 
him,  as  a  remainder  of  what  he  used  when  bit 
health  was  bad  there,  and  on  his  passsf^e  home, 
having  done  the  same  by  his  surgeon's  direc- 
tions  both  at  land  and  sea*  And  this  he  de« 
Clares  to  be  truth,  Pat.  Ooilvie. 

Geo.  Camphkll.        Patrick  Orb,  Clk. 
JuHN  tJR£,  Witacfls, 

Second  Decuiration  by  pATRrcn  Ooilvie. 

Forfar,    15th    June,    176i.      By    Georgt 
Cainpbeli,  esq.  sheriff-subsiitute.     Compear  eil  I 
the  said  lieutenant  Painck  O^u/pie,  who,  beinjf  ! 
re-cjtamiued,  ilecUres,  That  it  cont^ists  with  hi4  | 
I.         ',  '   .>,  that  of  the  luudanum  be  ^ut 
I  in  his  last  declaration,  there  was  do|  \ 

niivw  iuuiy  drops  or  gutts  of  it  useilySo  far  i 
he  can  recollect,  front  the  quantity  he  seolf*! 
and  what  remained  in  the  phial  glacis  tlie  da|i] 
aficr  bis  brother^s  death.    That  the  ded»ran| 
Celine  lu  Eastmitn,  when  Mr^.  OgiUiv  returne 
liim  the  ^lasf,  tnil  the  rcutuittdifr  of  taudanuri|  | 
therein,  and  which  he  instantly  produces,  anif  | 
III  immediately  ai'aled  up  with  tlie  declarAnt*4  | 
owu   seal,   and  lod^^ed   in    the    sheriff- iUerk'4i 
utHci^.     And  that  when  the  declarant  dehvere^J 
the  ||las«  to  Andrew  Stewart,  he  shook  the  t 
ta  him,  and  shewed  him  betwixt  bim  and  till 
liglit  the  duautity  uf  laudanum  therein,  win 
tipoii  looking  At  th«same  jui»t  now,  must  b 
Sffu^ible  that  there  is  no  more  out  thereof  tha 
about  the  <)uantity  of  thirty  gutts  as  above  j 
and  that  Mrs.  Ogilvie  told  him  she  hiid  u»iei 
alMiut  that  quantity,  and  also  made  ui^e  of  iha 
salts.     Declares,  that  within   these  two  week 
hi:  was  at  the  town  of  lirechin,  and  in  coiu<^ 
pany  with  James  Carnegie,  «urceau  of  tba 
place,  but  that  he  received  from  limi  no  Uuda*' 
nnm  or  any  other  medicine  whatever-    That 
when* bo  was  at  Eaatiuilu,  in  the  course  oC 
conversation  with  Mrs.  Ogilvic,  he  happened 
to  say  that  he  had  some  salts  and  laudanuni» 
that  he  used  when  at  the  £ast>Indies,  in  hii 
chest  at  Dundee,  which  would  be  very  soon  al 
Alyth ;  when   Mrs.   Ogilvie  dfsire<l    to   hav« 
some  of  both  sahs  and  laudanum,  as  it  might 
give  her  rest  when  uneasy,  and  could  not  pro- 
cure sleep.     And  this  he  declares  to  be  truifi. 

Patuick  Omt,  Clk*  Pat.  OoiLvm. 

JuuN  IJREt  Witness.  Geo.  CAUpHEt: 

Mr.  J  time*  Balfour  of  Pilrig,  sherifT-Hub^li- 
tute  of  the  sjiire  of  Edinburgh,  a^'ed  fitty  and 
upwards,  marrteil,  who  being  solemnly  s«otn, 
parged  of  malice  and  partial  coun»el,  examined^ 
and  iiit«rrog'ate,  and  two  declurations  or  exami^ 
nations  being  n^w  eibibiteil  to  the  deponen^ 
depones,  That,  at  the  desire  oi*  thf  !  *  '  ft4 
cate,  the  deponent,  upon  the  U^ud  <  i 

went  lothr  '  --'^  - -1  houw*  of  I. .:-..".  t^U,'' 

where  Pi  i^utni^l  being  brought 


ia  what  WM  einiued  by  the  paanvi  betac«  \^% 


5  GEOIiGB  UL  Triid  iffK.  Nmm  and  P.  OphU^ 


ISWJ 

wekntU  puiei.    And  this  ii  tratb,  ••  be  thall 
aoMrer  to  Ood.  (SignBd) 

Ano.  Pringlb.  Gm.  Spaldoiq. 

Alexander  Lmd$ay,  late  senrant  to  the  de- 
ceawd  Thdmaa  O^lTie  of  Eastmiln,  aged 
twenty -ODe,  unmarried,  who  beio^  aolesinly 
sworo,  purged  of  maliGe  and  parSal  couna^l, 
ezaminedy  and  interrogate,  depones.  That  he 
oame  to  be  a  fenrant  at  Eastmila  about  six 
o'doek  of  the  momiBg  of  that  day  od  wbieh 
EattmilB  died :  that,  about  nine  o'clock  that 
morning,  he  eaw  Mrs.  Ogilrie  the  pannel 
standing  in  a  ckiset  up  stairs  between  tne  two 
bed-rooms :  that  the  deponent  was  going  up 
to  the  garret  to  take  down  a  wheel :  that  the 
door  or  the  ckMet  was  open ;  but  the  deponent 
did  not  go  into  the  closet  \  and  that  be  did  not 
then  observe  any  thing  that  Mrs.  Ogilvie  was 
diHng,  nor  that  slie  had  any  thing  in  osr  band ; 
and  that,  when  the  deponent  went  up  to  the 
garret,  Mrs.  Ogtifie  called  up  to  him  not  to 
walk  over  the  closet  for  fear  of  shaking  down 
•ametfaing.  Depones,  that  when  he  wai  in  tba 
garret,  be  saw  Anntf  Sampson  standing  at  tba 
alalr-head,  near  the  diset  where  Mrs.  Ogilvie 
was.  Ceiija  tcktUut  pftiei.  And  this  is  truth, 
«  be  shall  answer  to  God.  (Signed) 
Amd.  PancGLB.  Alex.  LmosiT. 

His  Miyesty'a  Adyocate  declared  be  oon- 
eloded  bis  Proof. 

The  following  Witnesses  were  adduced  by 
the  panneli,  for  proving  their  ezenlpalknr. 

JLiit  ^  Witneua  summoned  for   Kaikarine 

Nairn, 

The  witnenes  so  marked  *  were  examined. 

1  *  George  Spalding  of  Glenkilrie. 
e  Andrew  Stewart,  merchant  in  Alyth. 

3  Martha  Ogilvie  his  wife. 

4  Lieutenant  George  Campbell,  late  of  the 

89th  regiment  of  foot,  at  Phiubaven. 

5  Patrick  Dickson,  merchant  in  Brechin. 

6  Colin  Smith,  vintner  there. 

7  James  Rattray  of  Kirkbillocks. 

8  Anne  Robertson  bis  wife. 

V  Alexander  Lindsay,  late  servant  to  the  said 
deceased  Thomas  Ogilvie  of  Eastmiln. 

10  *  George  Camptiell,   esq.  sheriff- substi- 

tute of  the  county  of  Forfar. 

11  John  Ure,  sheriff^clerk  of  Forfiir. 

12  Fergus  Fergusson,  in  Kirkton  of  Glenylla. 
18  *  Margaret  Rait  his  wile. 

14  *  James  Milfom,  tacksman  of  the  East- 

miln of  Glenylla. 

15  DavidSf>aldingofWhitebouse. 

16  Isobel  M'Kenzie,  widow  of  the  deceased 

Thomas  Oi^lvie  sometime  of  Eastmiln, 
and  moiher  of  the  said  last  deceased 
Tlioroas  Ogilvie  of  Eastmiln. 

17-  David  Watson,  miller  at  Eastmiln  of 
Glenylla. 

16  Thomas  Farquliarson,  eldest  son  of  Psul 
FarqtthanKMi  of  Persie. 

IP  iobn  Farqubarson  at  FormaH. 


[190S 

to  Gilbert  Renaay,  smgeoii  in  Ceupar  sT 

Angos. 
SI  «  Jean  Wallaoe,  senrant  ie  George  BpoM' 

ing  of  Glenkilrie. 
3S  *  John  Paterson,  son  of  James  PittersoB, 

in  Clocknooater  in  CHeoylla. 

53  Andrew  Paterson,  alao  aon  of  said  Jama 

Peterson. 

54  *  Margaret  Paterson,  dangfater  to  the  saii 

James  Paterson. 

55  Katharine  Perguason,  daughter  of  Feiga 

Ferguason,  in  Kirkton  of  GleoyHa. 
Sa  Ja.  M«Kenzie,  acboolmasler  at  OlenyNa. 

57  James  Dougal,  surgeon  in  Kerricsaeir. 

58  *  Elisabeth  Ferguason,  spouse  to  Jeha 

Bresaek,  portioner  of  Invercaritj. 

59  Alexander  Robertson  at  Bioateaa. 

80  Alexander   Ramsay    at    Bridge-end  d 

Lintrathen. 
51  Janet  Irons,  spouse  to  William  Ghss  si 

Barnside  of  St.  Martin's. 
St  •IsobelDcwlas,atWardheadofFonnan. 

38  Mr.  James  Warden,  aohoolmaeter at  Alylk 

84  Patrick  Raassay  at  Acbmuir. 

85  *  Thomas  Jack,  teaant  in  Kivktsa  if 

Glenylku 

86  Thomas  Ogilvie,  in  Litde  Kennj. 

87  John  Ramsay  of  Kinalty. 

88  James  Manson,  servant  to  Celia  8«lb| 

▼intner  in  Brecbin. 

39  Thomas  Morgan,  vintner  in  Dundee. 

40  Helen  Knigbt,  bis  servant. 

41  Helen  Sinclair,  spouse  to  Robert  Dowii 

Dundee. 

49  Charles  Far(|nharson,  watchmaker  tbot. 

43  Patrick  Ogilvie,  shipmaaler  there. 

44  James  Kay,  jun.  mariner  tliere. 

45  James  Dickson,  stabler  at  Cewgate-Hcsl 

of  Ediabuigb. 

46  Robert  Heron,  shoemaker  there. 

47  John  Gardiner,  stabler  there. 

48  — ^  Gardiner,  his  wile. 

40  Anne  Younger,  snouse  to  Charles  RaoNj, 
barber  in  Edinburgh. 

50  David  Murray,  stabler  there. 

51  Joseph  Baron,  porter  at  the  foot  of  Mcr« 

lin's-Wynd,  Edinburgh. 
53  Christian  Ogilvie,  his  wile. 

53  Andrew  Morison,  macer  to  the  Court  o/ 

Justiciary. 

54  —  Murison,  his  wife. 

55  Robert  Gibb,  coach  master  in  Cannongit^ 

Head. 

56  Mary  Dallas,  his  wife. 

57  Thomas  Miller  of  Barskimniing,  esq.  hit 

roajesly's  advocate. 

58  John  Davidson,  writer  to  the  signet. 

59  Mrs. Hay,  widow  of Cntbbcrl 

ofCastleliill. 

60  Donald  Farqnharson,  cadie  or  ooondl* 

post,  and  residenter  in  Edinburgh. 

61  John  Laiog,  journeyman  wright,  foot  if 

Old  Assembly  CIoks,  Edintnirgh. 

62  Francis  Shaw,  carpenter,  aon  of  Dansa 

Shaw  at  Cortachie. 

63 Robertson,  son  of  John  Robortssn  rf 

Cray. 


00] 


far  laertt  mtl  Mtui 


A.  D.  176/1 


[1310 


I  —  Furqulitirsoti,  irife  of—  WaUaoe, 
iiorl«r  and  uid  welter  in  EiUuburiifb. 

I  Min  ParqiihiurMiii,  some  liuie  iti  ^^iitftlUie^ 
DOW  in  ground  of  Diilc. 

%  Eltxabetli  tkorrock,  late  serraat  in  the  de- 
cirased  Tboniaa  0|^liri«!  ofEantixiiln, 

r  Aoiid  Hatrpsori,  late  Kerf  anl  to  the  said  de- 

..      ceated  TIioiojis  OkiI?  i«. 

^^,  llobert  Mco3&iei,  {nhysiciao  in  Coapar 

HIn  Fife. 

B^  Moir,  wife  of  the  nid  0r.  Robert 

^■Meniie*. 

^—  Hay,  rtlict  of  ^-^  Bruce  of  Ban* 


L  Genqfe    Rodger,  aavryer  of  timber    in 

North  Uiib. 
I  loho  Rodfer,  \n%  sod. 
I  Mm.  8erah  Young,  late  boarding-miBtresi 

In  Edinbtirgb,  now  in * 

\  Jatnes  Rattray,  porter    or  workmaii  in 

£dmbnr|r||, 

\  Margaret  Hpalding,  his  apousev 

HAoue  Rattray,  spoa«e  to  Alexander  Ogil- 

Rvie,  brothtff  to  the  said  deceaeed  Tliomai 
OgiWie  of  Easlmilu* 
iortia<«  Black,  late  surgeon  in  Dundee, 
now  in  IVrih, 
\  Mr.  iame^  Hill,  preacher  of  the  goipel, 

rrsidiog  at  Wester  Gowrdie. 
)  JoV     V    ,     !,  merchant  in  Edinbnrgh. 
)  J<^  I  (yoe  in  Kirktou  of  Gleaylla. 

1  iaUit  ^it*^^  tenatit  in  Downic. 
\  James  Rob,  tenant  in  Tulhcb. 
^I^^iirqubarson  at  Dikehead,  io  ground 

HHK  8coit,  talc  druggist  in  £diol»ur£;ht 

'^  H^w  m  Alloa. 

\  Dr.  laroea  Ctiriflie.  tale  of  Keith. 

I  Oeorgf*  Jaffray,  writer  in  Edinburgh. 

'  Jellies  HriMtl»»  writer  in  Ediuliurgh. 

Mbne    CAmeroii,    iponse    to    Alexander 

^n^'Grrgor,  stabler  there. 

^^nry    Walkt^r,    lute    tervant  to   Feler 

^HryTe,  (itibler  in  Ediidmrtrh, 

^Hn  H»i^^,  widow  of  John  Allan,  baker  in 

E<linlMir>/h. 
f '    "^  V  Stewart,  taylir  in  Eduihargh. 
irin*itrong»  ^vnter  ihcre, 
^^;..  A  C»Hyle,  writfT  there. 
^■ftii>    F^^ntnn,    jour uey man    painter    in 
^vE'hnhiirgh. 

I  JatiirK  Rae,  writer  in  Edinburgh. 
I^fibn  iVarwn,  writer  there, 
^HHicH  Corri^,  wriler  there* 
|B|tieii  Harrower,  writer  there* 
N5lH»ert  Htf  wnrt,  writer  there, 
rjaiiei  M*r/iu«£hian,  6€>rvant  to  John  GU- 
^  ilnakeboek. 
r  rt«on,    wife    of    Alexander 
^^I'K'  i:/.te  in  Interedry, 

Ahta  Ntirn,  tpouse  to' George  Spalding 

OiGt.-i-i'   : 
\  Dr.  Ad;^  ithytician  in  Edinburgh. 

'  T>r,  pliyficttin  in  Edinburgh. 

»()land,  iihyaician  there. 


tociati  m  Alloe, 


,  phyaicii 
Dr.  JiBiei  tioMt,  phy* 


lOr  Jamee  Cartiegie.  aurgeoo  in  Brechin. 
lOa  Mrf.  Maii^aret  Murray^  relict  of  ArahibaM 
Eagle,  aeed*merchant  in  Edinburgh. 

The  List  of  Witnesses  siimmni^ed  for  lleu^ 
trnaiit  Patrick Ogil 71  e  is  the  same  aathe  abore^ 
witli  the  omiii^ion  of  the  108th. 

N.  B.  The  List  of  Witnesses  lummoned  for 
the  Proseculor,  the  Liu  of  Assize  |;i?en  out  in 
the  liKJictiDerit,  and  the  List  of  WitnesMs  aum* 
moned  Hot  the  I'annelSf  are  not  engroeaed  (ft. 
the  Record.  » 

G£crge  Spuldin^  of  Glenkilrie,  aged  50  and 
tipwartla,  mBrried,  who  being  solemnly  sworo^ 
purgied  of  oialice  and  partial  C4>unst:l,  exa« 
mined,  aod  interrogate,  depones,  That  in  Fc* 
bruary  Ust,  be  wrote  a  letter  to  the  lady  Ndrn, 
pressing  her  ladyship  that  lofeflnient  should 
be  Ukeo  in  I  if  our  of  Mrs.  OgilTieof  fiastmiln, 
upon  h'T  contract  of  marriage,  beeauae  hot 
husband  E.^stmiln  appeared  to  be  in  a  bed  stale 
of  health.  Dcponen,  that  for  some  years  paaf, 
Ea^tmitu  appeared  to  him  to  be  in  an  inili (Ter* 
ent mate  vl'  health,  complaining  of)eo  of  a  heart- 
cholir,  or  a  pain  io  his  stomach,  attended  witfi 
a  sliort  congh,  which  was  not  continual,  but 
whicJi  seldoto  left  him.  Depones,  that  he 
»ore  a  plaiden  jacket,  ami  a  belt  round  bis 
middle,  much  broader  than  ever  he  saw  an- 
other  weur,  with  lappets  of  leather  hanging 
down  his  haunches  :  that,  upou  his  inarriiige, 
he  took  off  these  happings,  De|Kines,  that 
before  he  got  the  saiil  hioud  belt,  he  wore  e 
striped  woollen  night-cape  upon  hi^  breast,  the 
lower  end  of  which  reached  near  ht*<  breeches  { 
hut  never  observeil  tiim  wear  it  afWr  he  gut  th# 
belt.  Depones,  that  aboiU  six  years  ago,  the 
dejionent  was  told,  tliat  Mr  Ogilvie  of  East 
milii  had  an  ulcerous  ferer ;  aAer  which  the 
depfinent  saw  him  IVeqiif nily,  but  neter  saw 
him  look  m  well  as  formerly.  Depones,  that 
the  cild  lady  Ea^tmiln  told  'the  deponent,  that 
hf  r  son  Eustmdn  was  about  40  years  of  age 
when  he  diLil.  Depones,  that  fioj^intdn  was 
married  the  30th  day  of  January  lam.  De* 
pones,  that  when  Eastmiln  was  complaining  of 
the  aairl  |>ain  of  hie  Stomach,  in  the  depotienl^e 
house,  he  the  deponent  has  frequently  given 
him  a  dram  to  comfort  him  ;  and  particularly 
a  little  before  E)i>ctoiiln's  marriuge,  Eaatmila 
being  ill  of  the  said  di&ease  in  the  de|Hinent'a 
houfte,  he  got  hot  ale  and  whiskey,  with 
a  scrupe  of  nutmeg  in  it,  and  was  put  to  bed 
without  any  supper.  Depones,  tliet  he  does 
not  certainly  know  how  old  Mrs.  Ogilvie  the 
pinocl  is.  but  Mievf'M  lH>r  to  be  about  twenty, 
one.  Cuttta  tftrnfiff  palei.  And  this  je 
truth,  aa  hi>  shaU  answer  t'l  God, 

rStftntd)       GaoMs  BrAtDtn^, 

Hkmby  Hoai£. 

Juma  MtlUim,  tacksman  of  the  Eaalmjl 
of  Glenyllii,  formerly  sworn  this  day  no  th 
iiart  of  the  prosreutor,  and  now  tianined  oo 
hia  said  oath,  on  the  (lart  of  the  pannela,  de- 
poneei  Tb&l  the  via^y  nejtl  day  Ailer  UciUmabsl 


i 


4 


1311] 


B  GEORGE  m.  Trial  o/K.  Nairn  and  P.  OgUmef 


[ISlf 


Ogilfie  had  left  the  bouse  of  Basttniln,  Eaiit- 
uilo  employed  the  deponent  to  cftrry  a  letter  to 
his  brother,  and  he  read  this  letter  to  the  de- 
nouenty  the  conteoU  of  which  the  deponent 
lias  forgot,  further  than  that  it  contained  a  re- 
quest to  the  lieutenant  to  return  to  Eastnniln : 
that  upcin  this  occasion  the  deponent  was  in- 
lurnieii  by  Eastiiiiln  of  indecent  famiKarities 
whicli  his  mother  told  him  had  passed  betwixt 
the  lieutenant  and  his  wife  Mrs.  Ogrilvie ;   but 
that  tor  his  part  he  did  not  believe  them :    that 
the  dopoueni  delivereil  the  letter  according  !• 
his  invtrucUdiis,  and  received  an  answer  fiMB 
the  lieutenant,  which  was  also  read  to  him  by 
the  lieutenant,  importinK  the  lieutenant's  de- 
clining 10  return  to  the  house  of  l^astmifn,  be- 
cause of  the  reports  thai  were  raised  against 
him.    Depones,  that  reports  were  in  the  coun- 
try of  iudi>cent  familiarities  betwixt  the  two 
pannels :   that  he  knows  not  what  t^ave  rise  to 
these  re|iorts ;   but  that  Wit  his  pan  he  never 
■aw  any  indecencies  betwixt  them.      Depones, 
that  bis  dwelling-house  is  within  apenny-stime 
cast  of  the  house  of  £a&tmiln,  and  that  lie  has 
been  frequently  in  that  house.     De|M)nes,  that 
he  was  very  welt  with  Eastmiln;    and  that  if 
ftny  thing  concerned  Eastmiln,  be  would  have 
imparteo  it  to  the  deponent  as  soon  as  to  any 
fither.      Depones,  that  £astmiln,  four    days 
before  his  death,  complained  to  the  deponent 
of  a  gravel,  and  a  cholic :   and  that  he  could 
not  live,  if  be  got  not  the  better  of  it:    that 
on  the  evening  of  the  Tuesday  before  hb 
death,   he  went  into  the  depouent's   bouse, 
Mying  he  was  cold,  and  ordered  some  shil- 
ling  seeds  to   be  set   on  fire  for  warming 
him:    that  he  complained  of  hia«' being  ill, 
refusing  to  eat,  and  saying  he  would  have  no 
oilier  supper  but  the  '6re ;   and  that  he  was 
fading   as  fast    as  dew  goes  off  the  grass. 
Depones,  that  the  same  night  was  not  cold. 
Deuones,  that  Eastmiln,  the  night  -before  he 
died,  was  again  in  the  dei>ouent's  house,  and 
Wiid  he  was  no  better.     Depones,  that  the  day 
after  Eastmiln  died,  he  saw  the  lieutenant  sit* 
ting  on  a  bed-side  of  the  house  of  Eastmiln, 
with  bis  mother  on  the  one  hand,  and  Dr. 
Meik  on  the  other ;   and  that  he  could  not  be 
|iacified:    that  Mrs.  OgiKie  was  in  another 
room,  and  did  not  see  her :  that  the  lieutenant, 
in  the  situation  above-described,  was  giisliing 
out  of  tears.    Depones,  that  be  does  nut  know 
whether  there  was  aiiv  quarrel  betwixt  Mrs. 
Ogilvie    and   Anne   Clark  before   Eastmiin's 
■death ;   but  that  Eastmiln  complained  to  him, 
that  he  could  not  get  peaceable  possession  of 
his  own  house  for  Anne  Clark :    that  be  wish  - 
cd  her  away ;   and  that  he  got  from  the  depo- 
nent a  ten-shilling  note  for  the  expence  of  her 
journey.      Depones,  that  upon  the  Monday 
after  Eastmtln's  death,  Anne  Clark  lel't  the 
house  of  Eastmiln ;  and  that  the  deponent  saw 
her  get  money  from  Mrs.  Ogilvie  the  pannel 
immediately  before  her  departure.    Depones, 
that  when  the  mournings  came  home  upon  oo- 
casioo  of  Eastmiln's  death,  Anne  Clark  com- 
jitetfid  10  Uio  depoBODl  fv  imt  of  o  noun- 


ing  apron,  adding,  that  she  should  make  it  u 
dear  to  them  as  if  it  was  a  gown,  meaning  tbe 
tela,  aa  he  understood ;  and  bis  reason  for 


understanding  so,  waa,  that  it  was  the  lientc- 
nant  who  aent  for  the  mournings.  Deponci, 
that  the  day  Eastmiln  died,  be  waa  aent  liir  to 
see  him ;    and  that  be  came  about  12  o'chick, 


at  which  time  there  was  no  uersoii  with  bii 
but  Anne  Clark :   that  upon  that  occasioo  W 
staid  but  a  very  short  time:    that  be  returihd 
about  an  hour  thereafter,  and  aeveral  otbtf 
timea  till  Glenkilrie  came :  that  lie  aaw  sef enl 
persons  in  the  room  besides  Glenkilrie,  «W 
came  to  see  Eastmiln ;  but  that  be  does  not  re- 
member their  names.     And  being  interrspH 
for  the  prosecutor,  depones,  with   respect  ti 
the  letter  which  he  got  from  Eastmiln  lo  de- 
liver to  his  brother  the  lieutenant,  tbat  he  aoo 
recollects  a  passage  in  it,  importing,  that  Esil- 
miln  waa  to  «>  to  Edinburgh,  to  stay  thert  t 
fortnight*  perhaps  a  month,  or  six  weeks.    De> 
pones,  that  the  said  letter,  which  tbe  denooesl 
carried  from  EasUnila  to  bis  brother  tbe  Wt- 
oant,  was  inclosed  by  tlie  lientenant  in  the  mi 
letter  which  the  lientenant  wrote  in  rolarn,  ui 
which  letter  the  deponent  put  in  his  podtf 
without  looking  at  the  direction :    that  be  o^ 
fared  the  said  Idler  to  Eastmiln,  which  E«|- 
niiln,  withont  opening  it,  bade  tbe  dcpoont 
give  to  his  wife — because  it  waa  directed  H 
her ;  and  which  he  did  aocordingly.    And  k- 
ing  further  interrogate  for  the  prosecutor,  Hsv 
it  came,  tliat  when  the  lieutenant*a  letter  wai 
read  over  to  him,  that  ho  did  not  koo:y  it  an 
addressed  to  a  woman  ?  depones,  that  lie  \vk 
no  notice  of  this,  hut  only  of  the  lieuteaaat'f 
refusing  to  return  to  the  houae,  because  of  tkt 
reports  raised  against  him.     Deponea,  tbat  b^ 
fore  the  day  on  which  Eastmiln  died,  tbe  ^- 
ponent  never  heard  that  he  waa  ever  trouM 
with  any  violent  vomitings  or  purgings.   Beiof 
interrogate.  Whether,  to  ilie  deponent's  koow- 
ledge,  Eastmiln  did  not  continne  in  the  sane 
state  of  health  after  his  marriage  that  be  wiflw 
a  year  before  ?  dep<ines,  that  he  never  Ikeard  bin 
complain  before  his  marriage ;  but  has  bfiH 
him  often  complain  after'  it,  though  be  wtf 
as  intimate  with  Eastmiln  before  his  marriafe 
as  after  it.     Cauta  teUntUt  pattt.     And  tbi^  a 
truth,  as  he  shall  answer  to  God.     And  bciif 
further  interrogate,  depones,  that  the  Moaday 
after  the  pannels  were  put  in  Forfar  gaol.  Ales-     ^ 
ander  Ogilvie,  youngest  brotlier  to  Eastmibi 
rouped  the  stocking  upon  tbe  farm  of  Easunih 
that  belonged  to  his  deceased  brother :    tbst  W 
gave  it  out,  that  he  did  this  by  authority  ofakl- 
ter  from  his  brother  the  lieutenant:  that  heir- 
ceived  the  ready  money  got  at  the  roup ;  aol 
that  the  bills  were  taken  payable  to  him  it 
Martinmas  next.    And  this  is  also  truth,  as  ki 
shall  answer  to  God.  (Signed) 

Henry  Home.  James  Millax. 

Jean  Wallace,  servant  to  Gcoige  SpalAl 
of  Glenkilrie,  unmarried,  aged  90  and  if 
warda,  bein^  solemn!  v  awom,  purged  of  wtr 
lioe  and  partial  coamJi  mm'THj  om  ibM** 


F 


1913] 


Jhr  Incest  and  Mtirder* 


A,D.  1765. 


[131* 


Mar  gar  H  Paierson^  iIhu  filter  of  James  Pa- 
tersoa  iti  CJocknocater  of  Glenjrlla,  yiimmrned, 
aged  30  or  upwards,  beingr  Bolemnly  sworn, 
[lurgedy  and  inierrogate,  ut  antea^  depones  and 
coocors  with  her  brother  tlie  [irtceding  wjlTies« 
ia  atl  tbiD^  ;  m\h  this  addition,  thai  Eastmilii 
llkefvise  comptamed  of  sore  hones.  Caum  sci' 
fntiiC  patei.  And  he'iag  fuither  iulerrogatet 
deponeSf  that  Eastmilo  af\er  this  weul  further 
w^islj  and  did  not  return  home  Ibat  she  8aw» 
And  deponeSi  all  ihia  is  Irtiib,  as  she  ahall  an* 
g w er  to  G  0  d .        (Si^  n  ed) 

Alex.  BoiiWELL. 

Margaret  Rttif^  s|M>U3?e  to  Ferg[ii«  Ferg'us- 
soo  ia  Kirkton  of  itleti^lla,  a^^-d  about  60 
yeai-s,  heiug  solemnly  snoru,  purged,  and 
niterrogatf^  dejiones,  that  she  suw  the  dtfceased 
Eastfliilri  in  heroMo  bouse,  »htcU  is  abont  & 
quarter  of  0  mi!e  dislatit  from  his,  the  day  be- 
fore he  died  :  that  Eastmiln  told  tier  tiiat  he 
was  tiot  well,  and  he  behoved  to  gel  Dr,  Ojyjil- 

„_    .      I        , '  »  ..I  "^"iV^""'!*^*  *'  J  vie  to  uive  him  somethiuif  to  do  bltn  ciiOilz 

cxauiinetl.and  inrermifiite.fJepoiies,  IhalauoulJ    .    ^  ,^-       *  i  ?» -  j  l    i  ■ 

■  '^      *     r     _i ,    „  that  haslniiin  was  then  waiKmg',aod  had  come 

from  the  hill.     Cnusa  sclenti4t  ptUe(.     And  all 


gate,  depones,  That  she  was  serTsnt  in  the  de- 

cejiaed  Eastorib's  family  for  three  years,  and 
left  it^  as  Khe  thinks,  about  six  years  a^o  :  that 
the  laiityeur  she  was  in  bis  B^errice,  as  slie 
thmks^  EaEtmilu  bud  an  nicer,  and  was  attend- 
ed by  Dr.  Oj^ilrie:  that  since  that  time  the 
deponent  bail  hitle  oc4'a«iitm  to  see  Eastnailrt^ 
and  did  not  hear  hi  in  make  any  complaints  uf 
his  heahli  ;  but  that  the  de|ionent  from  his 
looks  did  not  think  he  wan  in  good  healths 
2>eponL'S,  tbiit  vvhile  he  wtia  bad  uf  the  ulcere 
>ie  was  conBiiedf  as  she  thiuks,  for  six  weeks, 
and  she  herself  f^at  up  frequently  \iitb  him. 
Cauta  fcirnita  patet.  And  all  this  is  truth,  as 
sbe  shall  answer  lo  God.  Auil  depones^  she 
cannot  write.     (Signed)        Alex,  Buswell. 

liobtl  Dtmgtfts  at  Wardhead,  dismissed  of 
CObsenl  of  the  piiiiutls. 

Thomat  Jack  in  KLirktoD  of  GlenyNa,  roar- 
riedp  ag:ed  40  and  upwardfi^  bein^  ttulemnly 
sworn,   pureed  of  malice  aud  partial  counsel. 


'^en  oVluck  of  ihe  day  upon  which  Easlmihi 
died,  the  deceased  Eu^duitu  told  hitii,  that  he 
liad  heen  out  the  day  hrlbre  visiting  some  of 
his  tenants  hi ^t; I [i|^s  ;  and  that  he  was  very 
bad  that  day,  and  had  heen  nbhtred  to  reM  him- 
self three  times  ;  hui  mid  the  tif  ^Niiientr  that 
lie  was  better  thut  moi  Liin^- ;  aud  tbiit  be  In  Id 
the  deponent,  that  he  bad  l)een  a  mile,  or  a  mile 
and  a  half,  from  home  ihe  day  hefbre.  Cutt^i 
scicntia  puttt.  And  all  is  truth,  as  he  8 ball 
answer  to  GmL     (Signmi) 

Alki^.  Boswell.  Thouas  Jack. 

Klizab^th  Fergumn^  spouse  to  John  Bre* 
fMck,  |H>rtiij'oer  of  Invercariiy,  u^red  35,  or 
thereby,  beiou;  solemnly  s^orn,  [mixed  of  ma- 
lice, examined,  and  interroi^rHte,  dt- pones.  That 
Ihe  day  heUne  Thomas  0:;iKie  of  E&stmilu 
dieil,  the  de|)onent  siw  him  in  her  own  house, 
which  is,  ^s  hhe  thmks,  about  three  miles  from 
Kastmitn  :  that  he  was  un  fuot :  tliat  he  told 
lier  he  wai^  not  very  well ;  and  that  he  bad 
been  taken  ill,  as  be  said,  i^lien  he  was  going; 


is  truth,  as  she  ^batl  answer  to  God*    Aud  de- 
pones she  cannot  write. 

(!^tgri^d)  Alex.  Boswell. 

Doctor  Jamex  Scott ^  physician  in  Edinburgb, 
married,  at^ed  about  40,  bein^  solemnly  sworn,  ^ 
purg-ed  of  malice  and  partiul  counsel,  examined, 
and  inlerro;^atef  depones,  That  be  has  made  ^ 
aunilry    exoennienls   upon  arsenic  :    that  he  ' 
knoiisit  will  not  disBoUu  in  warm  water  ;  and 
that  the  cummon  arsenic  that  is  io  be  met  with 
in  the  shops,  although  pretty  fine  pounded,  falla  , 
to  the  bottom  of  a  vessel   with  water  almost  I 
instantaneously  :  that  it  never  puts  on  a  greasy 
appearance.      But    bei.ig   further   interrogate 
upon  the  pari  uf  the  prosecutor,  depones^  that 
if  arsenic  he  put  into  a  bowl  of  lea  ivith  milk 
and  sugar,  that,  if  it  wua  stirred  round,   the 
arsenic  would  he  suspended  so  long,  that   it  ] 
would  kill  a  person  that  had  drunk  it  ;  and  if] 
there  was  honey  in  the  bowl,  the  arsenic  would  [ 


linme  some  time  before  ihat,  and  hud  nut  gut  l>^  still  more  soHpended  iherLby.     Causa  inVft- 

the  better  of  it,  or  was  not  much  better  yet.  iittputct.    And  all  this  is  truth,  as  he  shall  an- 

€^uta  tcienti^  patet,     Aud  all  is  truth,  as  she  awer  to  God.  (Signed) 

•ball  answer  to  God.     Aud  depones  she  cannot  Alkx,  Boswcll.  James  Scott. 

write.  (Signed)        Alex,  Bos  well. 

John  Paterson^  son  of  Jatnes  P.iterson  in 
Clock nocater  of  Glenylla,  married,  agi^d  SS 
years  and  upwards,  bpiug  sulemuly  sworn  and 
Uiterrogate,  depones,  Thai  be  saw  Eastmilu 
ihe  day  before  he  died  about  a  mile  from  his 
own  litJU!:«e  t  that  he  was  going  west  to  gee 
eome  uf  hi^  tenants  hi^giug^  :  ihal  Eastmiln 
complained  to  the  dejiouent  thai  he  was  sick: 
thai  be  said  his  bowels  were  all  sore  ;  aud  thai 
ba  bad  not  been  fn»  ill  t'ur  six  years :  thut  he  lay 
down  and  tm>k  a  sleep  upon  the  ground  ;  thai 
the  tle|>onent's  sister,  Lllar^jraret  Fateit»on,  was 
with  the  de|mnent  at  this  lime,  and  none  other. 
Citum  tfientia  puttt.  And  all  i^  truih^  as  he 
jhall  an^iwer  in  God.     (Signed) 

ALt;x.  Bu!»w£ix.  Jqu;^  Peterson. 

VUU  XiX, 


George  Campbell^  of  Car<:egownie,  sheriflT- 
Buhstitute  of  Forfarshire,  a  witness  formerly  &o-  I 
temnly  ttvoru,  and  examined  on  the  pari  of  the  j 
prosecutor,  depones,  That  some  time  after  (hi  1 
late  Eastmilu's  death,  the  deponent  went  to  the] 
house  of  Eastmiln  to  muke  a  search  for  anyj 
thing  that  might  appear  there  to  clear  up  the] 
cause  of  Easimilu^s  death:  that  the  de|>oneniJ 
not  hafiot;  the  keys  of  the  drawers  in  the] 
house,  broke  up  several  of  lliem,  and  par  lieu-  I 
larly  the  drawers  of  what  was  said  to  he  the  I 
late  Eftstmiln's  cabinet :  that  in 'one  of  lhc*i#| 
drawers  he  found  some  browuish  white  powdep^l 
wrapped  up  in  two  or  three  small  parcels  :  thail 
the  deponent  not  knowing  what  that  powderl 
waa,  carried  it  away  with  him,  and  aftrrwardi 
abewed  it  lo  James  Cartiegie,  turgeoa  vo.^^* 

4P 


)3I5]  B  GEORGE  IIL  Trial nfK.  Naim  and  P.  OgUrie,  [1316 


cfiiii,  an4  aflcH  him,  fVbtt  kind  of  powder  he 
t'Kik  it  to  bf:  ?  and  ptrticularlv,  Whether  or  not 
hf  th«iij{i;l)t  it  »a%  artenic  ?  that  Jsmei  Car- 
nf;i(i«>,  stfu-r  lofdcin^  att«mtirely  upon  the  pow- 
der, di":Ur^d,  that  he  did  not  know  arsenic  but 
hy  thf:  ffft^n  of  it ;  and  eoold  not  lay,  upon 
ai;(ht,  n  hither  that  [lowder  wail,  or  was  Dot 
arvnic.  lJi?pon«i,  that  Alexander  Ogilfie, 
brother  to  the  late  Kastmiln,  was  not  present 
wiih  »he  d«^{i*in#'nt  >-ilheratthe  foresaid  search 
at  chr;  hou«!<:  of  Ma«tri:ihi,  or  when  he  shewed 
th<*  [KiwiJirr  to  Jnmf:n  Carne(rip,  as  aforesaid. 
I)r\n,nt'%  and  produccfi  so  mo  of  the  powder 
foresaid  which  hr*  found  at  Kastmiln  ;  which 
linudf-r,  u\uiu  the  opinion  of  Dr.  Cullcns,  phy- 
aicifln  in  Kdinhiirf^h,  and  Mr.  James  liussel, 
Bijr((eon  there,  uho  tricfl  it  before  the  Court 
and  the  jury,  he  believes  to  be  saltiietie. 
Canta  kcicnlur  patct.  And  this  is  the  truth,  at 
h  e  Ik  h  a  1 1  a  n  4  we  r  to  i  J  od.     (Siencd) 

/\sD.  PftiM.i.c.  Gf.0.  Campbell. 

The  Trorurators  for  the  panncls  renoanced 
all  further  probation. 

'*  Itf  twixt  the  hours  of  one  and  two  o'clock 
in  the  morning  of  the  litb  current, 

''  The  Ijorda  Commissioners  of  Justiciary 
ordain  the  assize  instantly  to  indoxe  in  this 
place,  and  to  return  ttieir  Verdict  at  four 
o'clock  this  aflemoon,  lieini;  the  14th  day  of 
Auifust  current,  and  appoint  the  haill  fineen 
Mttixi'rs  then  to  be  nresent,  and  the  pannels  in 
the  mean  time  to  be  carried  back  to  prison; 
and  continue  the  diet  to  that  time.*' 


Ci'RiA  JiiMTtciARiJB  R.  I>.  N.  Regis,  teota  in 
Nova  Sf'Mhionis  Domo  dc  Edinburgh,  dcci- 
mo  quarto  die  Au^usti,  anno  millcsimo 
septiii(;fnfeKirno  sexa^esimo  quinto,  per 
Jlonorahiles  Viros  Uominam  Oilliertum 
JCiliot  «le  Mintfi,  l5aronetum,  Dominum 
Justiciarium  (Jlcricum,  Alcxundrum  Bos- 
%iHl  d(!  Auchiiileck,  Audreani  Print^le  de 
Aleiiioor,  Jacuhum  FergUKOu  dp  I'itfour, 
c't  iivuT^i'ium  Hrown  de  Coni*iton,  Com- 
liiiKsiitnarios  JuNticiaiis  S.  D.  N.  Itej^is. 

Curia  lejjitim^  affirmata. 

Intrnn* 

Kttihariuc  Nairn  and  Palrkk  OgUvitt  l>au- 
oelv: 

Indicted  and  accused  us  in  the  foregoing 
H«'d('rnnt. 

The  pi-raons  who  passed  upon  (lie  assi/e  of 
the  said  punnuls  retnrniid  the  following  Ver- 
dirt : 

*  At    Edinhursrh,    the    fourteenth    day  of 

*  Auiriiflt,   ftjiti  thousand  seven   hundred    and 
'  hixty-live  years.     The  alravc  oitsi/e  having 

*  inclose«l,  did  ninkr  choice  of  the  said  Kir 
'  George  Mutlie  of   Halgfinie,  baronet,  to  be 

*  their  chnnrHhir,    and    the    isiid    Alexanifer 

*  Hheriff  of  Croigleith  to  be  their  clerk  ;  and 
^baviag  comfide'rcd  the  crimiDal  indictment 


*  raised  and  pursued  at  the  intaofe  of  Tbomii 

■  Miller  of  BarKkimning,  esq.  his  majcsti'i 
'  adrricate,  for  bis  majesty's  interest,  acaart 
'  Katharine  Nairn,  witrow  to  the  dccea«d  Tla- 
'  mas  Ogilrie  of  Eastmiln  in  the  county  of 

*  Forfar,  and  Patrick  OgiJf  ie,  lieateoant  of  tin 

*  eighty- ninth  regiment  of  foot,  brother-^- 
'  man  to  the  said  deceased  Thomas  Ogilri^ 
'  pannels,  with  the  lords  justice- clerk  aa4 
'  commissioners  of  justiciary  their  interioctitsr 
'  prrjnounced  upon  the  relerancy  thereof,  1^ 
'  gether  with  the  depositions  of  the  witaesRl 

*  adduced  by  the  prosecutor  for  proving  the 
'  same,  and  the  depositions  of  the  witDcsM 
'  adduced  for  the  pannels  in  ezculpatioD,  tbcr, 
'  by  a  great  plurality  of  voices,  find  the  pai- 

*  nets  guilty  of  innst,  as  libelled,  during  tbt 
<  life  of  the  now  deceased  Thomas  Ogilvic  if 

*  Eastmiln :  and  they  further  find,  bv  a  gfcat 
'  nlurality  of  voices,  the  said  panne!  ^tbariat 
'  Nairn  guilty  of  murder,  by  poisoning  tbesaitf 

*  Thomas  Offilvie  her  husband ;  and  the  nil 

■  lieutenant  Patrick  O^lvie,  pmonel,  guilty  art 
'  and  part  thereof.  In  witness  whereof  the 
'  said  chancellor  and  clerk  have  aubscriM 
'  these  presents  upon  this  and  the  preoedisg 

*  page,  place  and  date  foresaid,  in  their  nam 
'  and  by  their  appointment. 

(Signed J        «  Geo.  Scttie,  Chan. 
•  Alex.  Sherift,  Clk.' 

Immediately  upon  the  reading  of  the  abovt 
verdict,  his  majesty's  advocate  judicially  ap- 
peared in  court,  and  craved  that  the  lords  ni^ 
proceed  to  pronounce  a  sentence  coodeninator 
upon  the  said  verdict. 

Mr.  Alexander  Lockhart,  as  procarator  kt 
Imth  pannels,  represented.  That,  during  the 
short  space  of  time  that  he  and  the  other  coos- 
sel  for  the  pannels  hare  bad  to  recollect  tbi 
ijrocecdings  in  the  course  of  this  trial,  and  apoa 
hearing  the  verdict  itself,  as  now  read  in  court, 
sundry  particulars  have  occurred  to  the  coudmI 
for  the  pannels,  which  they  are  humbly  to  in* 
sist  upon  as  jointly  and  severally  relevant  why 
no  jtidj^ment  can  pass  against  tnem  upon  thii 
verdict;  and  as,  m  support  of  some  of  thew, 
there  will  be  occasion  to  refer  to  the  records  of 
the  proceedings  themselves,  which  till  daw 
have  l>een  in  the  hands  of  the  jury  ;  and  as  it 
is  their  earnest  desire  to  state  these  in  the  niosi 
proper  and  becoming  manner,  he  therrfors 
moved  the  Court,  in  behalf  of  b«Uh  pannels 
that  they  be  allowed  a  reasonable  time  to  pre* 
pare,  state,  and  support  the  narticulars,  of  \\A 
heads  of  which  they  shall  tnruish  a  note  10 
his  luaji'sty's  advocate  this  very  iiiclj 


very  night. 


AJvofatus  answered,  That  the  rt*cord  of  ibl 
trial  has  been  open,  and  siihject  to  the  consi- 
deration of  the  counsel  ftir  the  pannels,  durilf 
the  whole  course  of  the  irijl :  that,  it'  anysb* 
jection  w  to  he  taken  agfninst  the  course  ot  pt* 
cediire  during  (he  trial,  it  is  necessary  iM 
such  oiijection  should  be  taken  and  tried  orfilA 
the  jury  is  discharge«t:  but  as  the  counsel^ 
tlie  paunek  have  moved  do  objeciioa  or  fkiii 


1317] 


fanr  Licest  and  Murder. 


A.  D.  1765. 


[ISIS 


arreft  of  judf^ent,  and  hare  only  moved  for  a 
<Ulayi  in  order  Uiat  ibey  may  have  further 
time  to  find  out  and  more  such  plea,  he  in- 
•iated,  That  this  is  no  plea  ;  and  therelbre 
craved  judgment  upon  the  verdict,  unless  the 
counsd,  for  the  prisoners  shall  state  a  special 
•ud  legal  plea,  wby  such  judgment  should  not 


"  The  Lord  Justice- Clerk  and  Commis- 
■ioiiers  of  Justiciary,  having  considered  the 
foregoing  debate,  declare,  That  they  will  pro- 
CCM  to  gi?e  judgment  upon  the  verdict,  unless 
the  procurators  Tor  the  pannels  will  forthwith 
State  special  reasons  in  arrest  of  judgment. 

(Signed)       "  GiLB.  Eluot,  I.  P.  D." 

^<Tbe  Lord  Justice-Clerk  and  Commis- 
rioners  of  Justiciary,  having  beard  the  procu- 
rators for  both  parties,  upon  the  reasons  for 
arrest  of  judgment,  they  appoint  a  minute  of 
debate  to  be  msde  upland  ingrossed  in  the 
record  of  conrt ;  and  supersede  advising  the 
•aid  Terdict  and  debate  till  to-morrow  at  eleven 
o'clock  before  noon  ;  and  continue  the  diet  till 
that  time ;  and  ordain  the  pannels  to  be  carried 
back  to  prison."* 


CoRiA  JusTicuRi£  8.  D.  N.  Rc^is,  tenta  in 
Mova  Sessionis  Domo  de  Edinburgh,  de- 
cimo  quioto    die    mensis  Augusti,  anno 

*  **Th^  Court  may  either  proceed  forth- 
urith  on  receiving  the  verdict,  or  they  may  ad- 
journ for  that  purpose,  at  their  pleasure,  to 
some  later  day.  If  however  they  choose  to 
proceed,  and  the  prosecutor  move  them  to  Xhs^ 
effect,  it  will  then  lie  with  the  pannel  imme- 
diately to  propose  his  reasons,  if  he  any  have, 
in  arrest  of  judgment.  For  although  the  Court 
nay  if  they  please,  and  always  will  when  it  is 
proper,  allow  his  counsel  full  time  farther  to 
enforce  and  support  any  plausible  objection 
which  has  once  hct^n  staled  ;  yet  it  cannot  be 
aaked  as  matter  of  right,  to  give  a  delay  for 
the  purpose  of  scrutinizing  the  verdict,  and 
searching  for  flaws,  where  none  can  be  dis- 
covereil  at  the  time.  Such  a  motion  was  over- 
mled  in  the  case  of  Nairn  and  Ogilvie,  Aug. 
14,  1765;  where  throughout  the  trial,  the 
€»unsel  for  the  pannels  hail  conducted  tlie  de- 
fence in  too  zealous  a  fashion,  and  one  which 
iras  somewhat  disrespectful  to  the  liench.  On 
Ibeir  moving  to  be  allowed  some  time  to  digest 
•Dd  prepare  reasons  of  exception  to  the  verdict : 
**  The  lords,  &c.  having  considereil  the  fore- 
going debate,  declare  that  they  will  proceed  to 
give  judgment  upon  the  verdict,  unless  the 
procurators  for  the  pannels  will  forthwith  state 
■pecial  reasons  in  arrest  of  judgment."  If 
Mich  reasons  are  pleaded*  it  is  also  in  the  option 
of  the  Court  eiiher  straightway  to  dispose  of 
tbem,  or  to  name  a  day  for  deliberating  on 
Ibe  subject,  and  make  an  order,  if  they  see 
cause,  for  laying  the  debate  before  them,  in 
iome  written  shape,  for  their  more  mature  con- 
iideiation."  Hume's  Cumm.  Trial  for  Crioici, 
«0l.^iG.  17,p.3aJ2. 


millesimo     septingentesiino    sexagesimo 

2i)into,  per  Hooorabiles  Yiros  Duminum 
lilbertum  Elliot  de  Minto,  Baronetum, 
Dominum  Justiciarium  Clericum,  Alex- 
andrum  Boswell  de  Anchinleck,  Andream 
Pringle  de  Alerooor,  Jacobum  Ferguson 
de  Pitlbur,  et  Georgium  Brown  de  Coal- 
ston,  Coramissionarios  Justiciarise  diet. 
S.D.N.Uegis. 

Curia  legitimb  affirmata. 
Iniran* 
Katharine  Nairn^  and  Patrick  Ogilvie^  pre- 
sent prisoners  in  the  Tolbooth  of  Edinburgh  ; 
pannels : 

Indicted  and  accused  as  in  the  preceding 
Sederunts. 

Lockharl,  Ract  Crogby,  and  Dundai,  for  the 
pannels,  by  this  minute,  represented,  That  no 
judgment  ought  to  pass  on  this  verdict,  in  re- 
spect that,  so  far  as  any  thing  is  found  against 
the  pannels,  the  same  is  void  and  null  ;  the 
proceedings  in  the  course  of  this  trial  having 
neen  most  intbrmal  anti  irregular.  Particularly, 
between  t^o  hours  of  three  and  four  of  the 
afternoon  of  Monday  the  112ih  instant,  the  jury 
arose  from  their  seats,  and  dispersed  into  diffe- 
rent corners  of  the  house ;  some  of  them,  on 
that  occasion,  even  going  out  of  the  room 
where  the  Court  sat;  and  continued  so  dis- 
persed, eatin;]r  and  drinking,  and  conversing  in 
private  with  different  persons,  and  particularly, 
with  the  counsel  for  the  prosi^cutor,  for  the 
space  of  half  an  hour  and  better,  a  witness 
being  then  under  examination,  and  a  part  of 
her  deposition  reduced  into  writin<;  before  they 
had  so  dispersed;  till  at  last  thecieik,  at  the 
desire  of  one  of  the  judges,  called  over  the  list 
of  assize,  when  they  again  asseuibleil  and  took 
thei^  seats,  one  or  more  {lersons  having  con- 
versed in  private  with  the  witness  then  under 
examination,  during  the  time  the  jury  had  been 
dispersed ;  the  saidwilness  being  Anne  Chirk, 
ajgainst  whom  objections  had  been  propiuied  by 
the  pannels,  but  over-ruled,  and  a  protest  for 
remeid  of  law  taken  thereon.  This,  it  is  ap- 
prehended, was  an  actual  adjournment  of  the 
trial ;  at  least,  it  had  all  the  bad  effects  of  an 
adjournment,  an  opportunity  being  given  to 
converse  with  the  jurymen  in  private,  to  solicit 
them,  and  to  offer  evidence,  which  the  pannels 
and  their  counsel  had  no  opportunity  to  see  or 
hear;  an  event  which  the  law  of  this  country 
has  been  particularly  careful  t(»  avoid  ;  and  has 
considered  the  preventing  sucli  thin^*:,  and 
giving  abfifdute  security  against  iheni«  to  be  a 
fundamental  point  in  a  trial  by  jury ,  as  appi^ars 
by  0^  act  1587,  chap.  9irwlieieli>,  ''Our 
soveraine  lord,  considering  the  Mranues  al- 
leilged  sustained  by  iliveise  notdeuien  and 
others,  lieges  of  this  realine,  l»eiiiu  accused  of 
treason,  l>e  8«tllesiting,  iMiustinu,  ai  d  menac- 
ing of  the  assize,  after  they  Here  inetoiwd,  tne 
accusers  and  otliers  |>erMiries,  their  lavnurera, 
having  liberty  to  pass  to  the  said  assize,  and 
\»  Hipdnce  lo  Ihqn  mk  wrim  UiA  witaen«s, 


ISW]  5  GEORGE  III.  Trial  o/K.  Nairn  and  P.  Ogilxde,  [18M 

jarvmen  happened  tuddeoly  to  be  takes  i, 
and  a|ipeared  incapable  of  dninir  bis  duty  il 
that  time ;  for  which  reason  the  Court  «asi4- 
journed  till  next  morninfr^  f»ben  that  jury  on 
being  recovered,  the  jury  ai^in  re-a^^aemlM, 
.were  inclosed,  and  retunii**!  a  verdict  ai^aiail 
the  priHoner,  finding  her  guilty  art  and  part  of 
the  crime  libelled.  It  was  moved  in  armt  rf 
judgment,  that  the  Court  liarin|f  been  a^ 
jouriied  before  inclosing  the  jory,  and  the 
jnrymen  dispersed,  and  an  opportunify  gits 
to  sollicite  and  practise  on  them  in  private,  tk 
verdict  was  void  and  null,  and  no  sentence  coaM 
follow  in  consequence  thereof.  The  matlo', 
on  account  of  its  importance,  was  referred  to 
tlie  C(»urt  of  Justiciary  at  Edinburgh,  vhera it 
was  solemnly  debated  in  presence  of  the  wbak 
judges;    and,    after  intormationa    had   baa 


and  other  probation,  as  they  pleased,  to  verify 
the  crime  outwith  the  presence  of  the  nartys  ac- 
cused; quhairby  the  just  delence  of  their  lives, 
lands,  and  honours,  was  taken  away ;  there- 
lore  our  said  sovereign  lord,  with  advice  and 
consent  of  the  estates  of  this  present  uarlia- 
ment,  has  statuted,  declared,  and  ordained. 
That  in  all  times  coming,  the  haill  accusation, 
reasoning,  writes,  witnesses,  and  uther  proba- 
tion, and  instruction  whatsomever  of  the  crime, 
sail  be  alledged,  reasoned,  and  deduced  to  the 
assize  in  presence  of  the  |»arty  accused,  in  face 
of  jiHJgmpnt,  and  no  othrrways." 

From  which  statute  it  is  plain,  the  legisla- 
ture meant  etfeotually  to  guard  against  every 
opportunity  of  making  any  impression  upon 
the  minds  of  jurymen,  excepting  by  what  was 
said  and  done  in  open  court,  and  in  presence  of 
the  panneis ;  and  all  the  salutary  effects  of  this 
statute  roust  be  eluded,  if  op|)ortunity  is  given 
for  the  counsel  for  the  prosecutors,  or  olliern, 
to  sollicite,  practise  upon,  or  argue  with  the 
jurymen,   during  the  course  of  the  trial,  in 
private,  by  permitting  them  to  leave  their  seau, 
disperse  through  the  house,  and  converse  pri- 
vately with  whatever  person  they  think  proper : 
that,  in  like  manner,  about  four  of  the  clock  in 
the  morning  of  Tuesday  the  13th  of  August, 
at  least,  between  the  hours  of  three  and  five  of 
the  mominij  of  that  day,  the  jury  d'ispersed 
again  in  the  same  manner ;  and,  in  their  ab- 
sence, part  of  the  deposition  of  Elizabeth  8tui^ 
rock,  one  of  the  witnesses,  was  taken  down  : 
that,  about  that  time,  the  Court  likewise  broke 
lip,  no  quorum  of  the  judges  continuing  on 
the  bench,  the  lord    Kaims   only  remaining 
there,  the  rest  retiring  and  conversing  in  private 
whh  sundry  of  the  jury  and  others;  and,  upon 
that  occasion  likewise,  the  jury  eat,  drank,  and 
conversed  in  private  with  different  persons,  and 
in  particular,  with  the  counsel  for  the  prose- 
cutor ;  w  hereby  the  trial  was  again  interrupteil : 
that  no  roll  was  called  ;  nor  was  it  any  ways 
ascertained  that  thry  re-a<ssemhled,  the  loVd 
Kaims  only   calling  out,  Gentlemen  of   the 
jury,  are  you  all  there?  and  the  depute  clerk 
of  justiciary  answering,  I  see  fifteen  ;    but  no 
answer  was  returned  by  the  jurymen  them- 
selves.   That,  in  this  ca«e,  the  CouTt  was  most 
unquestionably   adjourned,  as  no  quorum    of 
the  judges  remained  sitting  on  the  bench  ;  and, 
though  no  act  of  arljouriiment  appears  in  the 
record,  yet,  it  is  humbly  apprehendnl,    that 
that,  instead  of  mending  matters,  reiulersi  them 
worse ;  for  an  adjournment  via  factiy  is  un- 
questionably as  m'uch  an  adjournment  as  one 
made  by  an  onler  of  court,  having  all  the  liad 
consequences  of  if,  and  many  more.     That  it 
is  an    adjudj^ied    |Miint,    that,  after  a  jury  is 
charged  viiih  a  pannel,  the  Court  cannot  be 
adjourned  till  the  jury  is  inclosed.     This  was 
solemnly  determine<l  in  the  case  of  Janet  Ro- 
nald, who  was  tried,  in  May   1763,  at  the  cir- 
cuit-court of  Perth,  for  the  crime  of  giving 
poison  to  her  sister  ;  in  which  case,  after  the 
proof  was  concluded,  and  while  his  majesty's 
Advocate  was  addremog  the  jury,  one  of  the 


fCiven  in  on  this  |>oint,  and  recorcted  in  the  bosb 
of  adjournal,  the  Court  being  of  opinion,  llul 
this  adjoumiuent  vitiated  the  whole  procct^ 
inga,  did  not  pronounce  any  sentence,  on  tkii 
verdict,  but  assoilzied  the  pannel,  and  dismisMi 
her  from  the  bar :  that  the  adjourument  of  tk 
Court  in  the  present  case  ought  to  bavetk 
same  effect  to  vitiate  all  the  subsequent  p^ 
ceedings,  and  to  procure  an  Ab^lvitor  to  the 
panneis ;  since  every  had  consequence  that  en 
oe  figured  or  imairmeil  to  result  trnm  aa  ad- 
journment by  act  of  the  Court,  must  result  skp 
from  an  adjournment,  via  fact i.     That  absrt 
three  o'cloi'k  of  the  afternoon  of  TueMlay  ihl 
13th  ol  August,  at  least,  some  tiilie  betwcci 
the  hours  of  tnoand  four  of  the  afternoon  of  that 
day,  the  jury  strain  dispersed,  and  convened  it 
pnvate  with  sundry  {lersons  in  differenl  parti 
of  the  house,  and  continued  dispersed  far  lbs 
space  of  half  an  hour  or  upwarda;  at)er  wbick 
they  ag^in  returned  to  their  seats :    that  all 
these  various  adjournments  and  diicpersmf  of 
the  jury,  it  was  out  of  the  power  of  the|HinnrUi 
or  their  counsel,  to  prevent;  the  jury  beio^ 
actually  dispersed,  on  all  these  several  occt- 
sioiis,  liefore  they  were  aware,   no  moiion  hav- 
ing been  made  publicly  for  leave  of  the  Coart 
to  disperse,  and  the  panneis  and  their  couiacl 
being  intent  up<m  the  business  that  was  uoiog 
on,  and  that  attention  first  inteiTupted  by  tbe 
noise  the  jurjmen  made  when  acui»lly'  «li^ 
persing:  that  it  is  in  vain,  in  ihe  present  raw, 
for  his  maipsty's  Advocate  to  plead  the  oi^ei- 
Eity  of  the  jury  being  refreshed  in  such  a  case; 
for  they  were  refreshed  on  several  other  occa- 
sions besides  those  abuve-nieutioued,   at  which 
timen  the  refreshments  were  always  given  them 
in  titeir  seats ;  and  it  is  apprehended  ihatoufrbt 
ah^ays  to  he  the  case,  as  it  is  a  material  ponS, 
that  \\\v  quality  and  quantity  uf  tbe  retrob- 
ments  tiiey  take,  particularly   the  wine,  iii 
other  strong  liquors,  should  be  regulate  by  ibt 
Couit,    under    whose    immediate    iiispecti« 
every  thing  of  that  nature  should  be  givci 
them  ;  hut  by  jurymen  dispersing,  snd  driak- 
ini;  liquors,  in  what  quantity  and  of  whatqM^ 
lity  tliey  please,  in  private,  and  while  remowd 
from  the  inspection  of  the  Court,  there  n  • 
hazard  of  thev  liccomiiig  mtoiicairf  willi  ibi 


J32I] 


Jhr  Incest  and  Murder. 


A.  D.  1765. 


[159f 


liquois  Ihey  drink,  which  may  be  of  the  most 
daiigprous  consetjucnces  to  the  security  of  those 
who  are  Irieii,  arid  consfqiicDily  to  the  llve^  aor! 
liberties  r»f  ilie  suhject^  in  this  country  in  ge^ 
Heral.     Thai  the  bad  tf^ei'tfi  of  all  Ihese  set'tirid 

^  adjourn  men  IS  w  ere  severely  ft- It  by  the  pannets 

'  in  this  Ciipve ;  they  servnJ  to  j^rotracl  the  irml, 
aad  what  tm|jres<inns  ^  ere  communicated  to 
the  juryiDCD,  when  di^perfed,  or  what  quan- 
tities of  liquors  they  swallowt^rl^  are  drcuna^ 
stances  which  canmit  he  known  t^i  the  panneh 
pr  tbetr  counsel :  but  after  the  hsi  time  the 
jurytnen  were  dispersed,  and  wht;u  the  evi- 
ifeuce  on  the  part  of  the  paunels  l»egan  to  be 
udduced,  several  of  the  jury  shewed  a  Tery 
^reat  impatience,  aoil  insisted,  that  that  evidence 
which  the  panned  ihoii^hl  material  for  them 
should  l>e  cut  short.  Atid  sonic  of  them  par- 
ticularly disputed  the  relevancy  and  propriety 
of  the  queatiouis  uuthy  the  counsel  lor  the  pan- 
nels  M^iih  great  neat,  insomuch  that  some  of 
the  judges,  and  other  Jury  men,  were  obliged  to 
interpose,  in  order  that  the  exculpatory  proof 
iTiijtfht  uo  on  ;  and  the  counsel  for  the  jiaunels 
were  obliged  to  pass  from  many  witnesses,  in 
orAtf  to  procure  attention  from  those  as^iizers, 

\  Hence,  thoui^h  thirty 'three  hour  3  were  spent 
in  hearing  calmly  the  proof  adduced  for  the 
proitecutor»j ;  yet  the  proof  for  the  pannels, 
after  being'  heard  by  those  jurymen  with 
great  impatience,  was  put  an  end  to  in  about 
three  hours.  By  this  means  the  whole  pront' 
relative  10  the  conduct  of  Alexander  Oijilvic, 
which  the  panneli  had  insisted  much  upoain 
their  defences,  was  preventerl ;  some  of  the 
jurymen  paying,  that  they  had  nothin((  to  do 
with  Alexandi^r.  That  at  one  period  of  the 
trial,  one  of  the  jury  retired  from  his  place,  and 
continued  absent  a  con^iiferable  time  ;  yet  the 
proof  went  on  in  the  mean  time*  the  witnesses 
were  examined,  and  their  depositions  taken 
down  JO   writing  in  the  mean  time,  he  paying 

,  no  attention  thereto,  nor  was  he  capahleof  do- 
ings so  at  the  time;  jio  that  he  could  no  more 
judge  of  what  was  said  or  dune  at  that  lime, 
than  tf  lie  had  been  twenty  miles  absent :  that 
on  sundry  occasions  jurymen  did  retire  without 
leave  asked  or  given,  and  went  out  of  the  room 
where  the  Court  was  sittiuc^  :  lliat  it  m  in  vain 
for  his  majesty's  Advocate  to  plead  the  neres- 
cities  of  nature  as  an  excuse  in  8uch  cnsea ; 
for  there  is  a  remedy  known  and  comnvnniy 
iiractiseil,    when    those  iiecesmties   ohliij^p  the 

}  jurymen  to  withdraw,  viz.  Leave  is  asked  nf 
the  Court,  which  ordersji  macer  10  attend  the 
juryman,  that  no  person  may  have  any  private 
jutfr course  with  him  durinir'  the  lime  be  with- 
draws, and  the  trial  is  stopt  till  he  returns. 

That,  by  the  act  concerning  the  regulation 
of  the  judicatories,  passed  in  the  third  session 

I  of  the  second  parliament  of  king  Charges  the 
3nd,  in  the  10th  article  concerning  the  Jostire- 
IJouri,  it  is  enacted^  *<  Thai,  in  all  criminal 
pursuits,  the  defender,  or  hus  advf^cates,  he  al- 
wa^  s  the  last  speaker,  except  in  case  *\t'  treason 
nnii  rebellion  against  the  king."  Which  act, 
though  altered  99  to  proseciilioiis  notexteading 


to  the  loss  of  life,  or  to  demembration,  before 
the  Court  of  Justiciary,  or  in  circuii'-couriST 
and  where  the  evidence  i**  not  taken  down  in 
writing,  by  the  act  21  Qfi*.  2,  chap*  19,  §  18, 
yet  remains  in  full  tbrce^  loall  other  criutmtl 
c^tnrts^  and  as  to  all  trials  brought  in  this  ctmrt^ 
which  may  extend  to  the  loss  of  life  or  hmb, 
and  when  the  evidence  jm  tMken  down  in  writ- 
in;r.  Thai  this  statute  ntitwithslanding,  after 
the  advocates  for  llie  panned  had  concluded 
their  speeches  to  the  jury,  and  nothing  re- 
mained, by  the  formei  of  tourt,  but  u*  inclose 
that  jury  for  the  purpose  of  returning  their  ver« 
diet,  one  of  the  jud^ifes  did  tddretitf  himself  to 
the  jury,  in  a  speeeh  cunremiog  this  trt»1,  and 
the  credibility  of  particular  witoessps,  whereby 
the  paonels  were  deprived  of  a  le^a!  and  most 
material  privilege^  viz.  The  impression  that 
must  be  lefl  hy  the  last  pleader  upon  the  minds 
of  the  jury  in  their  behalf. 

That,  besides  all  these  informalittei  cmn*- 
milted  during  the  course  of  procedure,  the  re- 
cord is  very  defective,  though  the  defects  can* 
not  at  present  be  so  particularly  ]>oiuied  out,  aa 
the  counsel  for  tiie  pannels  have  not  yet  had 
an  opportunity  of  inspecting  it.  However,  Ihey 
do  condescend  on  the  following  defects :  thai 
sundry  admissions  made  by  his  mujesty^s  Ad- 
vocate, in  point  of  evidence,  favourable' for  the 
pannels,  are  not  taken  down ;  so  that  the  record 
nmsed  to  the  knowledge  of  the  assize,  wit  boat 
bearing  these  admissions.  One  of  these  ad- 
missions was,  passing  from  the  crime  of  incest 
during  a  part  of  the  time  libelled  ;  aoolher  was 
relative  to  the  conduct  of  Alexaniler  Ogilvie  : 
that  the  protests  for  re  me  id  of  law  taken  for 
the  pannels  at  ditferent  parts  of  the  trial  are 
not  engrfissed  in  the  record,  though  Ihat  wai 
speciiJIy  insisted  lor  at  the  time  they  were 
taken,  and  precedents  pleaded  on  and  produced  ; 
neither  is  the  condescendence  relative  to  the 
malice  of  Anne  Clark,  which  was  made  for 
the  pannels,  liut  found  not  relevant  by  the 
Court,  mentioned  in  the  record  ;  and  this  is  t bo 
more  materinl,  that  the  omission  of  this  conde- 
scendence was  used  as  an  argument  with  tb« 
jury  for  the  credit  of  Anne  CLirk*s  teiilimony, 
by  the  judge  who  was  ihe  IsrI  speaker  on  this 
trial ;  though  it  will  be  remembered,  that  when 
the  counsel  tor  the  prosecutor  hmt  concluded 
the  rest  ol'  his  proof,  he  gave  notice  to  Ibe 
Cifurtf  That  af«  the  counsel  for  tlie  pannels  had 
charged  malice  against  Anne  Clark,  one  of  the 
ini>st  malPfial  wiliie^sea  for  the  prosecutor,  and 
meant  to  addui  e  vi  iines<;es  fur  proving  that  ma^ 
lice,  he  jtnfged  it  necessary,  on  his  part,  to  ad- 
duce s<une  witnesses  in  order  lo  obviate  that 
objection,  tmd  Ia  ^ihew  that  this  wilness  was  so  • 
tar  from  bearing  malice  against  the  pannelt, 
that,  niter  she  hstd  been  once  precognosced,  she 
had  withilrawn  and  secreted  her  person,  when 
a  warrant  by  this  Court  was  out  against  her,  in 
order  to  avoid  her  beiog  brought  as  a  witness  in 
this  cause. 

That  the  verdict  appears  to  be  informal  ; 
and  the  counsel  for  the  pannels  apprehend  if  * 
will  be  tbuQd  ft  special  oue^  vihxjOk.  -k:<^^^^^ft^  n» 


132S]  5  GEORGE  III.  Trial  ofK.  Nairn  and  P.  OgUvie^ 


[1» 


the  ioterlocutor  of  relerancy :  that  it  does  not 
bear  that  the  jury  coosidered  the  writs  pro- 
duced, but  only  tiie  depositions  of  the  wit- 
nesses, though  writings  were  produced  both 
by  prosecutor  and  pannel ;  particularly,  the 
declarations  of  the  paunels  when  examined ; 
the  Questions  put  to  theai  by  the  slieriflf  of 
Edinourgh,  which  tiiey  are  said  to  ha?e  re- 
fuseil  to  answer;  Aiwe  Clark's  letter  to  the 
lord  advocate ;  the  alleged  letters  from  one  of 
the  paunels  ;  a  letter  from  lord  George  Beau- 
clerk  ;  a  letter  from  colonel  Morris,  in  whose 
regiment  the  pannel  Patrick  Ogilvie  senred,  at- 
testing his  good  character.  Therefore  the  ver- 
dict has  proceeded  on  a  partial  consideration  of 
the  evidence.  And  the  mattention  of  the  jury 
to  the  whole  evidence,  appears  from  another 
particular,  viz.  in  their  finding  the  pannels 
guilty  of  the  incest  as  libelled,  which  includes 
the  whole  month  of  January ;  though  it  is  in 
proof,  that  the  late  Thomas  Ogilvie  was  not 
married  till  the  30th  day  of  that  month.  That 
if  time  were  allowed  to  the  counsel  for  the  pau- 
nels, to  consider  the  verdict,  aud  inspect  the 
records^  and  prepare  arguments  in  support  of 
tlie  positions  they  have  now  laid  down,  they 
apprehend  there  is  a  good  cause  why  judgment 
anould  not  pass  on  tliis  verdict.  Tliey  have  set 
forth  these  objections  in  obedience  to  the  Court's 
desiring  tlieui  to  condescend,  and  craved,  that 
nore  time  may  be  allowed  tlieui  to  state  these  ob- 
jections more  fully,  or  any  other  which  may  oc- 
cur, and  liberty  given  them  to  inspect  the  record, 
and  have  copies  of  the  verdict ;  which  has  lieen 
refused  them  by  the  clerk.  And  this  demand, 
they  apprehend,  is  the  more  reasonable,  that 
they  have  only  had  a  recess  of  fourteen  honra, 
from  the  time  that  the  jury  were  incloHed,  after 
enduring  the  fatigues  of  a  trial  which  lasted 
for  forty- three  hours ;  so  that  they  are  not  in  a 
condition  at  present  to  argue  their  objections  so 
properly,  as  they  will  be  when  more  time  is 
allowed  them.  All  and  each  of  the  facts  set 
forth  they  offer  to  prove,  and  they  crave  that  a 
proof  may  be  allowed  accordingly. 

His  MafCitys  Advocate  and  Solicitor  Ge- 
neral  answered,  Tbut  the  conduct  c:f  the  de- 
fence fur  the  pannels  in  this  trial  has  been  ex- 
traordinary from  first  to  last,  as  ai>|»€ars  from 
the  defences  coui|»Qred  with  the  proof  in  excul- 
pation. That  after  a  trial  of  forty -three  hours 
continuance,  before  a  jury  of  the  mo%t  ri>- 
■pectable  character,  and  after  a  verdict  returned 
finding  the  panuels  guilty,  an  atiempt  is  now 
made  to  disappoint  public  justice,  by  a  plea  in 
arrest  of  judgment,  unknown  in  the  law,  uu- 

,  supported  by  any  precedent,  and  in  itself  irie- 
levunt  and  frivolous.  That  this  plea  has  been 
introduc*^  with  a  declamation  upon  the  lilwrty 
cf  the  subject,  and  of  the  importance  of  pre- 
serving a  jury  trial ;  and  yet  the  plea  itself 
tends,  if  it  has  any  meaning,  to  prove,  that  no 
trial  of  a  capital  crime  in  this  country  can  be 
taken  by  a  jury  ;  because  the  length  of  such 

•  trials  must,  in  most  cases,  make  it  necessary 
lorjury Bea  to  refrsiU  tbemaelviiSi  and  to  retire 


for  answering  the  necessities  of  natare;  mii 
these  things  cannot  be  permitted  by  the  Css^ 
tiie  necessary  consequence  is,  that  no  m^ 
trial  can  proceed  by  jury ;  and  in  order  tobrii| 
such  criminals  to  justice,  a  new  form  of  uiil 
must  be  invented.  That  when  a  pica  • 
groundless  and  frivolous  is,  for  the  fir»t  lip^ 
taken  up  in  behalf  of  two  pannels,  vhon 
rank  and  situation  in  life  enable  then  a 
bring  many  learned  counsel  to  argoe  ai 
give  countenance  to  such  a  plea,  in  bsUf 
of  two  pannels  convicted  by  their  oooitry 
of  the  most  atrocious  and  dang^erous  aam, 
it  becomes  the  dignity  of  the  Court  to  bar 
fully,  and  then  to  give  such  a  Judgment  as  vil 
shew- that  the  law  knows  no  distinction  of  p»- 
sons ;  and  that  the  criminal  law  in  this  0000117^ 
upon  which  the  security  of  the  gOTerumai, 
and  the  safety  of  the  people  depenils,  must  hsn 
its  course  with  equal  effect  against  tbe  grsslsi 
as  well  as  tbe  meanest  of  the  subjects.  Tha 
this  trial  has  been  conducted  with  more  att» 
tion  and  favour  for  the  defence  of  the  paaad^ 
than  any  trial  that  has  occurred  in  the  mcmorj 
of  any  of  the  members  of  the  Court.  That  Ike 
strictest  orders  were  given,  that  no  juryiUB 
should  retire,  even  for  relieving  the  nrccawlia 
of  nature,  without  leave  of  the  Court,  aud  bdif 
attended  by  a  macer  of  the  Court ;  which  wii 
accordingly  punctually  executed  throuffhsi^ 
the  whole  course  of  the  trial.  That  whfs  ii 
l»ecaiiie  necessary  for  the  jury  to  refresh  I 
selves  from  time  to  time,  for  greater  <" 
and  to  prevent  confusion,  they  left  their  k 
and  were  i^freshed  at  a  table  immediately  ht- 
low,  at,  and  under  the  eye  of  ti»e  Court;  soi 
the  insinuation,  that  some  of  the  jury  fssj 
have  taken  too  much  liquor,  is  false  and  aiya- 
rious,  to  the  knowledge  of  the  Court,  aud  mm 
not  so  much  as  insinuateil  in  the  debate  wlicr 
the  jury  was  present,  and  is  n»%v  for  the  fiift 
time,  thrown  into  this  minute.  Oue  of  tbe  ju- 
rymen being  indisposed,  rose  from  his  seat,  vd 
walked  for  some  time  behind  the  sral,  biri 
heard  the  whole  evidence.  That  no  cri- 
minal trial,  where  such  refreshment  of  tbe 
jury  has  l>een  necessary,  was  ever  canitdos 
in  u  manner  so  litlle  exceptionable  as  the  pre- 
sent ;  and  the  tendency  of  the  paniieU^  |4eaii 
to  shew,  that  no  crimiual  has  been  legally  cmi- 
demned  in  Scotland,  in  any  case  where  the 
trial  has  continued  for  such  a  time  as  to  requite 
refreshment  to  the  jury,  or  the  retiring  of  aay 
juryman,  or  the  relieviu:;  the  necessities  of  u- 
ture.  That  durin&r  th/e  time  the  jury  were  re- 
freshing themselves  the  first  da3',  AHoe  Clark 
was  uuder  examination,  which  U>led  ei^ht 
hours,  and  remained  in  her  place,  under  ibe 
immediate  eye  of  the  Court,  till  her  examtos- 
tion  was  resumed  U|K>n  tlie  return  of  tbe  jury 
to  their  places ;  and  no  person  spoke  to  her, 
except  the  macer  of  Court,  when  he  gavt 
her  some  bread  and  wine.  And  during  lbs 
whole  course  of  the  trial,  upon  notice  given,  tbM 
any  of  the  jury  had  retired  to  ease  nature,  thi 
proceedings  stopped  till  his  return ;  so  tbH 
thou^hp  fnw  the  aafiaiaity  «f  the  tbi^g  IhP 


Jhr  tntesi  MnJ  Mnrdtr^ 

CuMft  HW,  ft>p  tome  »hort  ititervftl?,  tUm  pro- 
ceedrng  in  ihe  [»mof,  yet  there  was  n«  Rajoum 
mm  of  the  Court 


ihr- 


jind  Ibis  appearji  fnMii  the 

■'  ■  •'   '*■" Tflf  caniKTi 

:,  W'ithfiul 


of  (he   Itiiil;   mill  as    i 

|iU^ri  fWTit^l  fbrthe  piii  i        , 

r.iind  It  It  iBnolpri'i 
(foor,  <rt*  liny  excp|i: 
le  pufincis,  td  ^iiy  pari  of  the  pro- 
.^r  the  »»hole  triaf,  fur  t«s  after  the 
^  no  proof  can  be  altoHed  of 
Inch  the  plea  i»  foniuM,  aoH 
lutiHi  lake  them   upon    tliefi*  own 


II. 

•he 


-"nurse 
I  the 

nee 
Any 

n,  in 


( 'milt 


ktiov<' feif^e.  The  Uie  ca^e  of  Janet  Ranald 
tkll  nO'  rrfali-  "*  '  '*:    " 

lh««  Court  v^; 

l(it>*r  fht^y  Vk  t'Tt*  ("siiir'^'t'ii  \i  Jill  lilt'  i»:nmef,  t^"*  nrtri 

frii  fminil  to  fie  confrary  to  law.  That  the  in- 
■tti nation  thiowu  outatfAtnatthe  jtiry,  thattht-y 
were  impatient   to   hear  the  ernlence  for  the 

rmirii^U   iH  likiMvise  ialee  and  injurtous,  to  the 
'it  Cntirt :  that  al>er  the  prose- 
ct  i     his     evidence,    ^vhich    he 

febrrdt^ed  ux  much  as  pos^ihlc,  the  ctMinsel  for 
111*  paimrts  proceeded  to  opou  their  defence  by 
1^  proof,  thai,  after  the  pnntiela  were  com- 
mittM  If)  prison «  the  cattle  at  the  hotise  at 
t'fe  sold  hy  Alexander  Ogilrie ;  and 
T  clearly  from  thprr  oWn  efideoce, 
l.r  of  the 


r 

\\ 

t1 

r 

*>i  ill  I 

maten 

fteUes  (inj.  I' 

fwf,  tliey  %> 

«?idcnce  a>»  n,;^.,.  „. 

Wence  ;  which  was  ^ 

alion  nf  the   lianner^ 


d  by  one 

I  appear'to  be 

V  found  them- 

i  iijut:  and  want  of 

!»,» to  attend  to  such 

[  il  fur  tlir  n  innel*i 

<ler- 

they 

leclare,  that  thoy  gpaveup  that 

of* 


Tile  proicat  taken  by  the  pannela  for  remeid 
10  taw,  is  extant  in  prooe«5,  and  makes  a  part 
of  the  record  of  this  triaU  The  objection  to 
llie  ttldence  of  Anne  Clark^  founded  upon 
miNce,  was  clearly  disproved  befbre  the  jury 
by  eridencci  that  she  was  s^  far  from  harbour- 

it  on  the 

before 

«ii.MM(u    nr-tTitM    from   the 

tie,  and  concealed  herself  in 

r^mit   this  city  under  a  false 

<  nl  her  bern^  adduced  aa 

al ;  and  alihou^h  his  ma* 

|icrccivinj]j  ihe  danjfer  of  pro- 

I  to  an  unnecessary  length,  did 

not  inkiKt  to  harethi*!  part  of  the  evidence  taken 

dotvTT ;    3'H    Tt    ripitt-nr^tl    so  strong    to    the 

|»  when  they  came  to 

^<  ill*»pfttif»n  f»f  rnnlicef 

'»rt  ihcre- 

ition.tliiit 

jj  ^  not 

!  (^i- 

,   tiiMLii  ^.»»i-«  jMtJiKi^   i;nix»l^Up 

CI  this  objection  ot*  njiilice,  or 


I 


A, ».  1765.  tl386 

That  th^  verdict  la  accurate  ani)  Ibrmtl  in      I 
all  ret  pec  Is. — ^Tbere  i«  no  ueceasity  that  the 

verrJict  fliould  ntention  the  etidence  upon 
which  the  jury  proccfdftd ;  that  all  the  writren 
evidence  adduced  before  the  jury  was  in  behalf 
of  the  prosecutor,  and  no  written  evideiict 
whatever  was  prosed  or  adduced  before  lh« 
jury  in  behalf  of  th«  pannels ;  and  if  ii  ^ 
CHn  hv  siippotiedf  that  tlie  jury  iltd  not  lake  ■ 
uuder  thrir  conudcratioo  \\i%%  pJirt  of  the  pro^  V 
secutor'a  evidence,  it  was  so  far  favonrable  for 
(he  pannets;  and  he  appeals  to  their  lordhhjps' 
kuowted^.  th»l,  iu  tiiont  trials  before  tliitf 
Court,  the  declarations  of  the  pannela,  and 
other  written  evidence,  ore  referred  to  in  tht 
libel,  and  proiluted  before  the  jury  ;  and  uiany 
verdicts  have  been  relumed,  upon  which  eze* 
euiiori  pas«ed,  whereio  no  mention  is  mad«  of 
their  ImvinjyE'  considered  such  writtt'U  evidence ^ 
for  it  is  in  their  power  to  take  that  evidence 
under  the:ir  coui^ideratton,  as  a  ground  of  iheir 
verdict,  or  not,  as  they  please, 

I'kat  it  is  the  undoubted  ri^^ht  of  the  counsel 
for  the  pannet  to  be  the  last  speaker  upon  the 
import  of  the  evidence,  and  the  [irosecutor  haj 
no  reply ;  but  it  is  the  ittherent  rig-ht  of  the 
Court,  and  esiisetitia]  to  pubhc  justice,  to  correct 
mistakes  in  hiw  or  in  fact,  by  which  false  iua- 
presstons  upon  the  jury  may  be  made  by  the 
counsel  on  cither  side :  that  the  verdict,  with 
respect  to  the  mre*it,  is  iin exec ptroo able,  and 
property  apph^  !iarge  In  (be  libeK  M 

lltat  no  a'Ji  19  made  hy  his  majes*      I 

ty*8  advocate,  m  u  is  nut  properly  entered  upon  \ 

the  record :  that  he  passed  from  the  incest 
char|*^ed  to  have  been  committed  af\er  the  sixth 
of  iTuue,  in  presence  of  the  court  and  jury,  and 
the  verdict  properly  applies  to  thefibefasso 
restricted :  that  the  counsel  for  the  prisoners 
had  access  to  the  record  during  the  whole 
course  of  the  trial,  and  since  that  time  ;  and  ft 
is  icD proper  to  move  the  Court  for  an  arrest  of 
judgment  till  ihey  have  further  time  to  con-  M 
sider  the  record,  in  order  to  discover  what  oh-  f 
jections  they  can  there  4tnd  in  support  of  their 
plea.  In  respect  of  all  whicL,  judgment  ought 
to  be  pronoanccd. 

Afler  reading  over  the  fortgoiogf  mtnu(«s 
judicially,  in  prcMeooe  of  the  pAuntUatid  court* 
the  lords  proceedetl  to  advise  the  same,  aint 
pronounced  the  following  lnterkM:utof : 

»*  The  Ijord  Justice-Clerk  a*^'*  i'nrr,rr.;«;on- 
ers  of  Justiciary,  hDving:  ctKi  e- 

goin^  delate,  and  knowing  iti  L  ..  of 

uiis  trial,  IVom  first  to  lost,  was  carrie<l  on  UQ«      fl 
der  the  eye,  and  in  presence  of  the  Court  ;  and      ^ 
that  the  wholo  of  It   was  coti dueled  wiili  as 
much  rc^nlni  ity  and  accurncy  ns  ever  was  done 
in  any  tnal  helore  the  Court,'they  find  the  rea- 
sons pleaded  in  am'Mt  of  jiid^mrnt  not  relevant^ 

n'll  the  satii  '  Ko  re  pell  the       ~ 

H  made  to  I  lance  of  the 

»'  Oiuu  Eluqt,  I.  P.  B." 


I 
I 


1327] 


5  GEORGE  III.  Trial  ofK.  Naim  and  P.  OgUoie, 


[1328 


On  (N*onAunciDflr  of  which  loterlocutor,  Mr. 
Alexaniler  Luck  hart,  advocate,  procurator  for 
the  paiiiieltf,  protefited  for  remeid  of  law ;  and 
thereupon  took  inatrumeots  in  the  handa  of  the 
clerk  of  court. 

Then  there  was  a  Petition  given  in  and  pre- 
sented to  the  Court  hy  the  said  Katharine 
Nairn  pannel,  signed  b^  Mr.  Alexander  Lock- 
hart,  and  Mr.  Henry  Dundos,  her  lawyers, 
bearing,  That  the  petitioner  has  the  misfortune, 
in  the  criminal  prosecution  now  dependiuj^ 
against  her  (n  this  court  at  the  instance  of  his 
majesty's  advocate,  to  have  a  verdict  returned 
mgainst  her  by  a  plurality  of  voices,  finding 
her  guilty  of  the  crimes  of  which  she  was 
charged:  whereupon  his  majesty's  advocate 
having  moved  for  judgment,  sundry  objections 
were  sUted  upon  her  part,  why  no  judgment 
can  pass  against  her  upon  that  verdict :  that, 
abstracting  from  these,  she  now  begs  to  repre- 
sent to  the  Court,  that  she  is  pregnant;  and 
though  she  cannot  take  upon  her,  from  her  in- 
€Z|)erience  in  these  matters,  positively  to  say 
how  far  she  is  advanced  in  her  pregnancy,  ac- 
cording to  her  best  opinion,  she  judges  she 
may  be  about  three  months  gone  with  child. 

Therefore  praying,  it  might  please  their 
lordships,  to  direct  the  proper  inquiry  to  be 
made  into  her  preaent  state  and  condition  as  to 
her  alleged  prepnancy :  and  upon  the  same 
being  properly  certified,  to  supersede  judgment 
against  her,  it  any  judgment  can  pass  upon  the 
terdici,  till  after  delivery.* 

*  **  Another  situation  which  requires  a  delay 
of  passing  judgment  in  capital  cases,  is  that  of 
a  female  convict  who  is  pregnant ;  lest  her 
child  perish  with  her,  and  because  it  cannot  be 
known  with  ceruinly,  at  what  time  her  deli- 
▼ery  shall  take  place.  Upon  any  allegation  of 
this  sort  (and  1  do  not  fiud  that  any  distinction 
has  ever  been  made,  whether  the  woman  were 
with  quick  child  or  not)  the  Court  will  order  a 
report  uu  oath  of  skilful  persons,  who  shall 
visit  the  punnel,  and  verify  her  condition  ;  and 
if  their  report  be  doubtful  on  their  first  visit, 
they  may  be  ordered  to  see  her  again,  from 
time  to  time,  and  to  report  anew  by  a  certain 
day,  to  which  the  diet  for  pronouncing  sen- 
tence may  be  adjourned.  This  course  was 
taken  in  the  case  of  Katharine  Nairn,  in  Au- 
gu*>t  1765,  and  in  that  of  Mary  Lantrlands,  on 
the  17th  Nov.  1785.t  In  this  last  instance,  the 
respite  mun  given  ity  the  lords  llailes  and  Hen- 
derland,  the  only  two  jiidg;es  who  were  in  Edin- 
burgh at  the  time  ;  and  their  deliverance  bears, 
that  as  no  quorum^  oi  the  Court  could  be  got, 

•f-  <*  Execution  was  (iela>ed  on  account  of  the 
paonel's  preguaiicy  lon^  ai>o,  in  the  case  of 
Ueleu  Geddes,  amvicted  of  incest,  March  2, 
1658.  This  is  on  authority  of  the  abridgiiieul 
of  the  records,  in  the  Advocate^s  Library  ;  tor 
llie  original  record  h:i8  perished. 

I  *'  By  the  act  of  the  Jd  sess.  of  the  2d  par- 
liament of  Charles  3d,  a.  d.  1673,  cap.  16, 
eatitledy  **  Act  concerning  the  regulation  of 


Which  Petition  being  read  in  court,  and  ja* 
dicially  adhered  to  by  her, 

**  The  Lord  Justice  Clerk  and  CommiauoDm 
of  Justiciary^,  having  heard  this  Petition,  they 
grant  warrant  for  letters  of  diligence,  at  the  is* 
stance  of  his  majesty's  advocate,  for  citiif 
three  or  more  skilful  midwives  to  compear  be- 
fore their  lordships  against  to-morrow,  bcbf 
Friday  the  16th  day  of  August  current,  at  atai 
o'clock  in  the  forenoon,  to  inspect  the  pctitiaaa 
Katharine  Naira  pannel,  ana  make  trial  whe- 
ther or  not  she  the  petitioner  be  prcffnanl « 
with  child  ;  and  accordingly  to  give  their  Ofi- 
nion  or  judgment  to  the  Court  therein ;  m 
contiime  the  diet  against  the  petitioner  ootii  ihf 
said  time ;  and  appoint  her  in  tlie  mean  time  ti 
be  carried  back  to  prison  ;  and,  for  the  pnrpoM 
aforesaid,  the  said  lords  appoint  the  peiisai 
following,  to  wit,  Mrs.  Johnaton,  Mra.  Hanil* 
ton,  Mra.  Duncan,  and  Mra.  Hill,  known  mid- 
wives,  to  be  cited  aa  above. 

(Signed)       •*  GiLB.  Elliot,  I.  P.  D." 

<'  The  Lord  Justice  Clerk  and  Commimoocn 
of  Justiciary  having  consklered  the  foregoiaf 
verdict  of  assize,  dated  and  returned  the  14jb 
day  of  August  current,  against  Katbarise 
Naim,  widow  of  the  dec^Med  Thonaas  Ogihie 
of  Eastmiln  in  the  county  of  For&r,  and  Pa- 
trick Ogilvie,  lieutenant  of  the  89th  regiment  of 
foot,  brother-german  to  the  said  deceased  Tbo- 
roas  Ogilvie ;  whereby,  by  a  great  plurality  tf 

they  therefore  proceeded  on  the  necessity  of  tbe 
case."    Hume's  Comm.  vol.  3,  p.  343. 

That  the  Court  of  Juaticiary  will  after  senteoce 
respite  execution  on  account  of  pregq^ncy,  sec 
3  Hume,  cap.  17,  p.  348.  For  the  law  of  £b^- 
land  respectm^  this,  see  4  Blackst.  Comm.  c. 
31.  As  to  the  form  of  proceeding  when  a  aoons 
convicted  of  high  treason  pleads  pregoaocr, 
see  Louthian's  Form  of  Process  before  the 
Justiciary  in  Scotland,  p.  314,  edition  of  173!. 

the  judicatories,"  it  is  required  in  tbe  in 
section  of  that  part  which  has  for  title  **  Coo- 
cerning  the  justice  court,"  that  four  of  the 
whole  numl>er  be  always  a  quorum  of  tbit 
court,  except  at  the  circuit  courts  ;  and  by  §  5, 
that  two  of  their  number  be  appointed  to  go  ao4 
keep  each  of  three  circuits  therein  meutiooeiL 
Doubts  having  been  entertained  whetlier  tbe 
presence  of  the  judges  was  under  this  sta- 
tute necessary  to  hold  a  circuit  court,  a  decla- 
ration was  made  under  the  sign  manoal  of 
queen  Anne,  and  an  act  of  adjournal  of  tbe 
Court,  of  September  3,  1708,  that  either  of  die 
two  judfj^es  appointed  to  any  of  the  circniiii 
nii{;ht  proceed  to  bu&iness  in  the  necessary  ab* 
sen4!e  of  his  colleague.  It  seems  that  donbli 
were  entertained  of  the  sufiiciency  of  thii 
declaration  ;  to  remove  which  an  enactment  H 
the  same  purpose  was  introducted  into  tbe  all- 
tute  Geo.  3,  cap.  '13,  accompanied  by  a  pran* 
sion  against  the  attendance  of  the  justice  fi» 
neral  on  such  occasions."  See  as  to  these  poM 
1  Hume,  Trial  tor  Crimes,  17,  €i  J€f  •  U,<lilf< 


1329] 


for  Incest  and  Murder. 


A.  D.  1765. 


[1330 


voices,  the  faul  Katharine  Nairn  and  Patrick 
Ogilvie  are  found  guilty  of  incest  as  libelled, 
during  the  life  of  the  now.  deceased  Thomas 
Oj^ilvie  of  EaaUniln ;  and  the  said  Katharine 
Nairn,  guilty  of  murder,  hy  poisoning:  the  said 
Thomas  Ou^ilFie  her  husUand  ;  and  the  said 
lieutenant  Patrick  OgiUie  panned  guihy  art 
and  part  thereof:  in  respect  of  the  said  verdict, 
Ibey,  by  the  mouth  of  Isaac  Gil»bs»  dempster 
of  court,  decern  and  adjiidi^e  the  said  Pairirk 
Ogilvie  pajinel,  to  he  carried  from  the  bar  back 
to  the  Tolbooth  of  Edinburgh,  therein  to  re- 
maia  to  be  fed  upon  bread  and  water  only, 
in  terms  of  the  act-of^  parliament  in  the  26th 
sear  of.  the  reign  of  his  late  majesty  king 
George  the  2d,  intituled,  *  An  Act  for  preventing 
'  the  horrid  crime  of  murder,'  until  Wetines- 
day  the  25th  day  of  September  next  to  come ; 
and  upon  that  day  "^  be  taken  forth  of  the  said 
Tolbooth,  and  carried  to  the  comnion  place  of 
execution  in  the  Grass-market  of  Edinhureh, 
and  then  and  there,  betwixt  the  houn  of  two 
and  four  of  the  clock  aHer  noon  of  the  said 
4)ay,  to  be  han*;cd  by  the  neck  hy  the  hands 
of  the  common  hannrman,  upop  a  gibbet,  < 
until  he  be  dead ;  and  his  body  thereafter 
to  be  delivered  to  Dr.  Alexander  Munm, 
prolessor  of  anatomy  in  Edinburgh,  to  be  by 
aim  publicly  dissected  and  anatomized,  in 
terms  of  the  said  act ;  ami  ordain  all  his  move- 
able goods  and  i^car  to  he  escheat  and  in- 
brought  to  his  majefttv's  use  ;  which  is  pro- 
nouoced  for  doom.    (Signed) 

*♦  GiLB.  Elliot. 

**  Alex.  Hoswell. 

<*  And  Pkingle. 

**  James  Ferouson. 

'<  Geo.  Brown.'* 


-CctOA  JusTiciARiA  S.  D.  N.  Regis,  tenta  in 
Nova  S<*SKioiiis  Domo  de  Edinburgh,  ile- 
ciroo  rfexto  die  men<*is  Auifiisti.  anno  mil- 
lesinio  8eptinifen<eHim'>  «(exai;esim'»  (|uinto, 
per  Honorahiles  Vi'-os  Dominum  CiillN'rtnin 
jBlliot  d«*  Mint%  Baronelitn,  Domiiiiim 
Justiciarium  Clerirum.  Alt'xandrom  B<>s- 
ivell  de  Aucliinleck,  Anilream  Prin^^le  de 
Alemoor,  JacoWiini  Perufiison  de  Pit  four, 
et  Georgiiim  Brown  il«*  Coalston,  Com- 
misKionarios  Justiciaris  diet.  S.  O.  N. 
Begis. 

Curia  legitime  affinnata. 
Jntran* 
Katharine.  Nairn,  prisoner  in  the  Tolbooth 
#f  Edinburgh;  paunel : 

Indicted  and  accused  as  in  the  former  Se- 
deroot^. 

*'  The  Lonl  Justice  Clerk  and  Commis- 
sioners of  Justiciary,  in  reK|>ert  th-it  Grizel 
AI*Queen,  relict  of  Dr.  Hamilton,  and  Agnes 
Ker,  wife  of  William  Hill,  Ute  one  of  the 
letter* carriers  in  Ediiiburt^h,  two  of  the  four 
midw.ves  named  yevlerday,  and  cited  in  cnnse- 
Haenoe  of  the  warraoi  iben  gruated  ibr  to  have 

VOL.  XIX. 


appeared  this  day,  do  only  compear ;  and  that 
excuses  are  offered  and  sustained  for  the  other 
two;  therefore  they  grant  warrant  for  citing 
Mary  Crawford,  wife  of  William  iiichardson, 
baker  in  Ediuburji^h ;  Mary  Angus,  widow  of 
ILuh  Slieilh,  wig-maker  there;  and  Mar- 
garet Watson,  widow  of  William  Petric,  mer- 
chant there;  all  known  midwives,  to  compear 
instantly  before  this  Court,  in  order  to  the  effect 
that  they,  or  such  of  tliem  as  the  Court  shall  a|>- 
point,  may,  upon  oath,  inspect  the  pnnnel  Ka- 
tharine Nairn,  and  make  trial,  whether  or  not 
she  he  with  child,  and  accordingly  to  give  their 
opinion  and  judgment  thereTipon.  (Signed) 
"  Gilb.  Eluot,  I.  P.  D." 

Conform  to  warrant  granted  yestenlay  and 
this  day,  by  the  lord  jufitice-c^erk  and  Vom- 
missionf  rs  of  justiciary,  for  citing  of  mid  wives 
to  inspect  the  pannel,  compeared,  in  presence 
of  the  said  lordfl,  Agnes  Ker,  wife  of  William 
Hill,  late  one  of  the  letter-carriers  in  Edin- 
burgh; Margaret  Watson,  widow  of  William 
Pffrie,  merchant  there  ;  Grizel  M*Queen,  wi- 
dow of  Dr.  Hamilton  ;  Mary  Crawford,  wife 
of  Willi»fn  llichardson,  baker  in  Edinburgh  ; 
and  Mary  AngUH,  widow  of  Hugh  Sheills, 
wig- maker  in  Edinburgh  ;  being  all  solemnly 
swore,  de|>one,  that  they  shall  faithfully  try, 
jand  true  report  make  to  this  Court,  of  their  opi- 
nion and  judgment,  whether  the  pannel,  Ka* 
tharine  Nairn,  is  with  child,  or  not,  as  they 
shall  aiisw  f  r  to  God.     (Signed) 

Agnes  Hill,  Mary  Richardson, 

Marg.  Petrib,  Mart  Sheills. 

Grizel  M'Uueen, 

Gilb.  Elliot. 

Th^  sai«l  five  midwives  above  nameil,  having 
removed  out  of  court  with  the  pannel  to  ano- 
ther ntoiii,  and  re  entered  intf»  the  same  afler 
smne  Nhort  space  i»f  time,  depone  unanimously, 
from  what  they  have  ohserve<|,  they  cannot 
give  a  pfi«<itive  opinion,  whether  the  pannel  is 
pregnant  or  not ;  and  that  they  cannot  depone 
that  the  panni;l  i.s  with  child.;  nor  can  they  de* 
pone  that  she  is  not  with  child. 
(Siuned) 

AcsE'i  Hill, 

Maroarbi-  Petrie, 

Mary  ^$lIEILLs, 


Mary  Richardson, 
Grizel  M  Queen, 


Gilb.  Elliot. 


Clerk  and  Commis- 
respect  of  the   fore- 


**  The  1y>rd  Justice 
sionent  of  Jnstiriary,  in 

Coin<r  RefNirt,  deUy  pronouncing  of  sentence 
ai^ainst  the  said  Katharine  Nairn  pannel,  till 
the  third  MoiidHy  tif  Noveinlier  next  to  come 
at  13  oVI«M!k  heftire  noon,  in  this  pince,  and 
c«Mitinue  the  diet  til!  that  time ;  and  irrant  war* 
Hint  to  the  five  midwives  liefore-uauied,  alonif 
uith  Mrs.  Johnttton,  another  kno^n  midwife, 
and  already  cited  for  'hat  piir|MiM*,  and  who, 
ut>ou  report,  will  lie  altH>  put  n|>on  oath,  that 
they  hy  turns  may  iimi  and  intipect  the  iienson 
of  the  Haid  Katharine  N^irii  pannel;  aud  or- 
dain the  said  midwiveN  to  re|»ort  their  f»pinion 
and  jiidgaiein  to  tbe  Court  the  said  ^^>j^^!&w«x 

4a 


1»Q 


S6SOBBCEXXL 


^Ciwi  JMyiiuMi ;^-lIyi»  «y 


mMmkBhimm,t0lt^JmtlimCkriL 

*^ 

Ikmmm^  bMMT  to  M      '  ' 

ifaCiCfMW  iliM^mriiritf*;  Mil 
prtontorf  t^  «Mr,  Mt  tW  rooMi  mtk^  _ 
htmm  nh^  mm  hy  ^timt^  put  \ni»^  wm  bj  _ 
mmn^n  p^.mm  I»  b^^  »  firww«r  in  safety ;  and 
I  «m  dct^mNMMl,  f bat  all  pmmierf  introtttfi 
f»  fh«  «ara  «f  ibe  military  ooder  mj  cooh 
iMMMf,  nfcall  alwajTf  W  pat  in  plar.i»  of  mco- 
fif  jr.  f  bavfr  tii«  bmMor  to  be,  my  lord,  Your 
fordiiliip's  most  oftp«dicnt  hntMe  Mrraat, 

"  O,  BCAUCUU." 

*•  lffflyrnod-Jftm$e,  Auf/,  12, 1765." 
''  To  the  Ri((ht  Hon.  tbe  Lord 
iinitiea  Clerk." 

LtiUr  ffcm  BUuiii  ljomf(  Morris,  euj.  to  Mr. 
JmmimUhi  Wriier  to  the  Signet. 

.  <♦  HnntiryLfjdgcAug.  3, 1765. 
t*  pif  ;_Tlifa  day  I  received  y oar  letter  of  tbe 
dlftt  of  Julv,  rN|tir«ting  an  attetUtioo  of  lieo- 
lanani  (hgih'm^t  b^'bariour  while  be  waa  aoder 
my  r^rnimand.  f  li»  cimduct  an  an  officer  wai 
viM'«r«*|»ti«Hiable ;  and  he  waa  al^^ay*  thoiisrht 
by  inyMflf  and  the  other  officer*  of  the  regi- 
fitent  fo  be  an  iniyflTinvivr,  barmleai  ann.  I 
•»«  Hir,  Your  moil  obadient,  and  werj  humble 
•art ant,  Htaati  L.  Moania." 

M  To  Mr  iainca  Hmith,  wrHer 
latiMaigiici,Ediiibof^'9 


*  murd^ifit,  wt 

good  ;  lor  ibeae  are  diicrent  < 

**  la  tbe  prcaeet  ene  there  io  a  fortWr  4b- 
adraatage;  for,  at  I  am  iafermcd,  tbe  liiiliir 
iaec^t,  mmd  tbe  trial  for  morder.  arc  to  ba  bU 
ii|^a  qoice  difcreot  auuwr.  In  tka  fat, tbe 
tnalia  ^jaooisclaasii;'  and  in  tbeatbcritii 
^jjooia  apertis;'  the  laftmftbod  bciof  m«a 
pobGc,  b  leu  eicepiiooable.  In  tke  caae  ef 
tbeae  onfortnnate  prioiteen,  tbe  whole  wai 
carried  on  *  januif  danfis  ;*  every  allcgalian  u4 
depoiiitioo  in  rapport  of  one  branch  of  the  ia- 
dictment  bad  an  effect  on  both ;  hot  tbai.  I 
think,  was  rather  prejndice  than  real  cottrieuoa. 

**  I  am  of  opinion,  that,  if  the  crimes  chvfB^ 
are  considered  tevefmlly,  and  tbe  evidence  pr»- 
dnced  to  support  one  crime  ia  taken  mfift 
without  the  asmtance  of  tbe  other,  nojonFia 
Eu({land  woold  bare fonnd  the  prisonerafiaBf- 

^  If  the  facta  allad^  aaa  proof  of  tteia- 
ceiit  were  given  aa  a  proof  of  the  carnal  baa* 
led^e  on  an  indictment  for  a  rape,  it  ia  imptf^ 
aibfe  a  jury  could  find  tbe  defendant  guilty.  I 
think  (hey  would  not  be  admitted  aa  a  pntim 
criminal  convenation,  to  iotitle  a  biariMri* 
damage  on  an  action  of  traapaaa.    TVm-lp 


not  ooM'ftct  attempted  ta  ba  pravad,  than 
not  ba  literally  tnia;  apdyaathrirf  aiial 


1SS31 


Jot  Incest  and  Murder. 


A.  D.  1765- 


[133* 


The  coiiieeUires  of  women  of  very  indiflVrent 
chi4>^^t<  IK  unA  iA  very  ihalicioii!^  iliMptiMiiootti 
w  I'l  to  the  worst  thaigs;  Imt 

IIj  ^  ire  riot  evidence,  when  tliere 

is  a  |»o!iiybiiily  that  the  |iartie8  may  be  inno* 
oent.  1  do  nol  know  thai  in  our  law  any  [ire- 
■uni|itioa  of  a  criiDiuul  cuiuemaiioa  operuteg 
IB  any  circum^tAitce,  hut  that  of  heio4(  *  solus 
ouoi  PoU,  et  nudus  cum  iiuda  ;*  in  all  other 
cireufnstnuces  a  positive  proof  is  r«>{}uired.  It 
otVen  liappeHB,  that  a  inati  is  iudtcted  i'or  a 
rape,  %nd  AcquitUMl  i  aod  yet  the  Court  directs 
it  proaeeytioii  fur  au  assault  with  qu  inti'iit  to 
GOiPRiit  ft  rafte.  In  c^i^es  of  that  nature,  1 
doubt  not  but  the  wune»*>es  in  the  pre^tfut  case 
wouJd  have  boldly  a  verted,  that  a  rajie  hud 
been  actually  comtnttted.  The  mind  of  (he 
prioctpai  viitness  was  strani^ely  nrefiobiieflsed  ; 
jtbe  could  hear  distinctly  what  tlie  good  lady 
Baatmiln  could  neither  hear  nor  see. 

*'  li  tliey  were  to  be  tried  on  the  nnurder 

aici|rly,the  proof  there  will  appear  aii  defpciife. 

There  ia  not  one  positire  {iroof,   that  Thoman 

Ogiltie   died   of  poison.      The  aurt^reous  who 

attended,   declare^   that  the  symptoms  tnic^ht 

ariie  from   natural   caniedt   a   violent  bilious 

Crtlic,      It  wap  proved,  that  Thomas  U;fjlfie, 

the  day  before  his  death,  and  some  day  a  helore 

thai,  had  complaintd  of  pains  in   his  bow^lg^ 

Ijwl  hod  called  for,  and  taken  drama  in  several 

HHmIi  to  procure;  ease.     These  mo>it  cerluinly 

^Hn  not  the  effecis  of  poison   taken  on  thV 

^^Bn>»i(;  of  tbe  day  on  which  he  died.     Why 

m^bt  not  these  puina  hare  rncrea^  the  day 

OQ  which  he  die^l,  without  the  interposition  of 

any    poiton  f    The   mutter  tui^ht    liave  been 

cleared   up  by  openinij   the  body.     Surgeons 

mert  preneut,  anri  ready  to  perforrn  the  optnn* 

tioii,  but  were  prevented  by  the  person  wh^ 

has  spirited  up  the  prosecution,  and  who  is  to 

ba  the  only  gaintr  by  tbe  death  of  the  pri- 

•oners, 

**^  Tbe  pfreat  rule  of  evidence  in,  to  have  the 
befit  prniif  the  nature  of  the  cnne  can  admit. 
That  certaiidy  hiis  not  l>ecn  produced  in  this 
caM* ;  it  wan  not  oppot^ed  by  the  prisoners,  but 
it  was  opposed  by  the  man  who  wishes  I  heir 
de%truiiiou.  The  incest  in  jJup|>oaed  to  be  ccr- 
tain^  hecAUiie  the  huiibiind  h  supposed  to  h^wc 
been  poisoned  ;  and,  on  the  other  hand,  the 
man  is  balieved  to  be  poi^toned,  because  there  is 
ft  iiipaosed  proof  of  incest. 

**  Under  these  circuoislatices,  il  is  difficult 
to  find  any  means  to  prove  the  itmocence  of 
the  prisoners,  after  a  verdict  and  judgment. 
The  tfnh  Article  of  the  Union  confirms  the 
jurii«diction  of  the  court  of  session  ;  and  in  the 
ftBRic  terios  it  cootirmtt  the  juri^^diction  of  the 
Court  of  Justiciary,  h  iiUMttion^  nothing  M' 
nn  appeal  from  the  Court  of  Session  to  the 
HouK*^  of  Lords,  yet  those  appeals  are  frequent. 


It 

OOl  «'\'Mn(i»'  ■ 
iba  Court  oi 

HOO^     of      L»Hm  :.. 

ihtt  two  iUprciBa 


for  or   fi((nm»t   appeals 

f  iary  :  il  certaiidy  does 

111  from 

to  the 

i  I.  ^,i,iiLi  «i.    <jr,.i  it  from 

courts  in  Scotland,  where 


property  only  U  concerned,  anil  not  to  admit  an 
appeal  from  tlie  third  supreme  court,  where 
life,  honouj-f  property,  and  (wistfiity  are  con- 
cerned, apjiears  tomewhot  exiriiordioary.  By 
tbe  same  Article  of  the  Union,  it  is  ennctecl, 
that  no  causes  in  Scotland  be  cof^uoRcible,  or 
any  jud*;nieiii  from  thence  be  recoiynoiK'ed, 
receivetlj  or  altered,  by  the  Court  of  Chancery, 
QueenV  Bench,  or  Common*  Pleas,  or  any 
other  court  in  Westminster-han,  Thi^  negative 
clause  as  to  Westtniiister-halU  and  the  a 
ibere,  seems  to  imply  a  power  of  recognoxdn^ 
and  altering  causes  uud  judn^meuts  in  the  Mouse^ 
of  Lords.  1  think  It  is  the  common  rule  of 
construction. 

'^  I  believe  there  are  few  instances  of  ap- 
peals fiom  the  Court  of  Justiciary ;  but  that  is 
not  a  proof  that  tiucb  appeals  canuot  lie.  I  re- 
member a  petition  of  appeal  was  sent  from 
Scotland  in  the  affair  of  Barrisdale :  there  was 
some  difiicuUy  made  about  presenting  the  a|>- 
peal.  Lord  Bath  was  applied  to;  but  he  said. 
It  was  a  branch  of  business  he  never  meddled 
in,  nor  was  he  disposed  to  meddle  for  the  fu- 
ture in  uny  public  affair,  unless  it  was  such  as 
was  of  the  highest  importance  to  the  nation  ; 
however^  he  would  go  to  thehouse^  and  men* 
tion  it  to  tbe  chancellor :  atid  iu  some  days 
after,  being  called  upon,  he  said,  he  mentioned 
the  affair  to  the  chancellor,  but  that  it  was  un- 
necessary to  struggle  as  to  the  petition,  us  the 
king,  out  of  his  graoious  dispo<iiiion,  would 
give  the  same  relief  that  was  aimed  at  by  tha 
petition. 

**  If  there  is  no  way  open  fi-om  the  Court  < 
Justiciary  to  the  House  of  Lords,  it  is  the  onii 
court  in  Great-Britain  which  is  not  subject  i' 
that  jurisdiction;  (or  writs  of  error  ^o  fron 
the  King's- bench  to  the  House  of  Lords,  cveml 
ill  cases  of  high-treason.     It  is  nol  a  eiKnitujttf 
practice,  I  conlirss ;  but  yet  it  has  been  doni^ 
I  see  neither  reason  nor  law  why  the  proceed* 
ini^s  of  the  Court  of  Justiciary  might  not  fal 
under  the  review  of  the  supreme  court,  as  w 
as  thojieof  the  Court  of  %ks$iot). 

"  Sfpt.  U,  17135.  A,  M*Carty.' 

♦  *•  The  reversal  of  jmlgmenl  on  review,  ii|| 
course  of  law,  has  reliitioi>  tu  the  sentences  ouh 
oi'  the  inferior  courts.  For  those  of  tfie  couft_ 
of  justiciary  are  not  subject  to  rcvisal  in  any' 
form  of  process,  ^ither  before  them!»elves  or 
any  oth^r  trihunal,  not  excepting*  even  the 
House  of  I^irtls,  to  which  ihejiidgnu  nls  of  d(  i 
the  other  courts  of  jtistice,  of  both  Scotlut»4 1 
and  England^  may  lK^  carried.  As  was  likeljf  I 
to  h:ippen,  this  interesting  question  uns  mon6| 
than  I  '  the  subject  of  discussion  ;  am]  I 

mort  ,  ,  it  was  so  in  the  caiie  of  lieuie*  1 

DiMit  4j;^ihii:,  ivlio,  <\ficr  his  couviction  BUlt| 
sentence,  applied  to  his  majesty  for  a  refipire^|l 
until  he  should  have  on  ofiportunit\ 
tijeitt  not  being  then  assembled),  of  | 
a  petition  of  spjieut.  On  thin  *»' 
re«pilo  was  grant eti  accftnhogly,  in 
time  ;  anda  remit  was  made  to  the  >»uurik 
general  for  Ivngla&d,  and  the  lord  advocala  C^^  J 


1335] 


5  GEORGE  III.  Trid  ofK.  Nairn  and  P.  OgUvie, 


[ISM 


In  conseqiionce  of  this,  lientenant  Oj^ilvie 
was  res|)iit>(l  rr<»in  time  to  tiiite  till  the  13th  of 
Ni»V('mher,  1765.  when  (liis  majesty's  fourth 
rejr.ievc   hpiii«if  cx[»ire<l)  he  uas  carrietl  from 

ScoiIhihI,  for  their  opinion  as  to  the  com- 
peioiicy  of  such  review.  Anil,  ctn  the  part  of 
the  lord  advocate,  (at  that  time  Mr.  Miller,  af- 
terwdrils  successiveij  lord  justice-cl/eik,  and 
presiilent  of  the  court  of  session),  a  report  was 
made  in  the  nejjrative,  upon  these,  as  they  have 
g'eneraliy  heen  esteemed,  and  certainly  to  me 
appear,  sounti  and  sufBcient  {^rounds.  1.  The 
absolute  silence  of  all  our  books  and  authori- 
ties in  law,  with  respect  to  any  such  right  of 
appeal.  2.  That  there  is  no  vestiflre  of  any 
aui'h  process,  either  in  the  records  of  the  pre- 
sent Court  of  Justiciary,  which  was  established 
in  16ri,  nor  in  those  of  parliament,  which 
begin  with  the  reign  of  James  1.  3.  The  si- 
lence of  the  Claim.of  Right  (1689,  c.  13)  on  this 
head  ;  though  it  asserts  the  privilege  of  pro- 
testing for  retnead  of  law,  against  the  judg- 
ments of  the  lords  of  session,  the  supreme  ju- 
dicature in  civil  or  patrimonial  affairs.*  4. 
That  the  Treaty  of  Union  confirmed  the  Court 
of  Justiciary  in  its  constitution  and  privilege^  as 
they  then  stood  ;f  and  that  there  has  been  no 
instance  [excepting  a  sinffular  and  irregular 
case  about  the  church  ot  Elgin]  since  that 
time,  of  any  such  appeal  being  received  by  the 
House  of  Lords.  The  opinion  of  the  attorney- 
general  for  England  coincided  with  this  report ; 
and  in  consequence,  upon  expiration  of  tlie  re- 
spite, lieutenant  Ogilvie  was  executed,  agree- 
ably to  his  sentence. 

**'  The  next  attemjit  of  this  sort,  was  in  the 
trial  of  George  Dempster  for  bribery  at  an 
election  ;  where  the  prosecutor  offered  a  peti- 
tion of  appeal  against  the  interlocutor  of  Court, 
sustuinint;  the  pannel's  privilege  as  a  member 
ot  parliament,  in  delay  of  trial.  This  was  re- 
mitted to  a  committee,  to  report  whether  it 
should  be  Tf^ccived,  (Murch  7th,  1768;)  but 
the  issue  Mas,  that  instead  of  determining  the 
gen«.Tal  (piestion,  tlie  House  saw  cause  to  pro- 
nounce an  onle!%  auiiiorising  the  Court  to  re- 
consider their  judtrrucnt,  and  proceed  notwith- 
stauding  the  apptal.     [See  the  words  of  this 

*  The  article  of  the  *  Claim  of  Right,'  which 
Mr.  Hume  here  mentions,  is  expressed  thus. 
**  That  it  is  the  right  and  privilege  of  the  sub- 
jects, to  protest  for  remeid  of  law  to  the  king 
and  parliament,  against  sentences  pronounced 
by  the  lords  of  session,  providing  the  same  do 
not  stop  execution  of  these  sentences." 

f  In  the  19th  article  of  the  Treaty  of  Union 
it  is  declared,  *' That  the  Court  of  Justiciary 
do  also,  after  the  Union,  and  notwithstanding 
ihereof,  remain  in  all  time  coming,  within 
i>cotland,  as  it  is  now  constituted  by  the  laws 
of  that  kingdom,  and  with  the  same  authority 
and  privileges  as  before  the  Union ;  subject, 
nevertheless,  to  such  regulations  as  shall  be 
made  by  the  parliament  of  Great  Britain,  and 
without  prejudiice  of  other  rights  of  justiciary.*' 


the  Tolbooth  in  Edinburgh,  mod  was  ezecotcA 
in  the  Grass- Market,  amidst  an  iDDomerabk 
concourse  of  people.  The  day  before  bis  exe- 
cution he  signed  and  delivereil  a  paper,  inordcf 


order  in  Maclaurin's  Criminal  Cases,  p.  417. 
There  is  also  an  entry  relative  to  it  io  the  boob 
of  Adjournal,  Aug.  16,  i768.  The  Lords  sT 
Justiciary,  in  an  interlocutor  relatire  to  thii 
business,  had  inadvertently  applied  to  this 
order,  the  terra  *  judgment/  The  lord  adv^. 
cate,  of  the  above  date,  represented  to  tht 
Court,  That  he  attended  the  Oominittee  of  tks 
House  of  Lords,  whose  order  of  the  7tb  of 
March  wks  made,  *  of  purpose  to  avoid  tbs 
determination  of  th  i  ^aestion  as  to  the  ootom^ 
tency  of  an  appeal  from  this  Court;'  aadlM 
he  was  apprehensive,  that  afterwards,  wbei 
the  ret  getta  was  forgotten,  this  interlocoto 
might  be  quoted  as  evidence  of  the  receivisf 
of  the  appeal,  and  of  a  judgment  given  on  it  is 
the  House  of  Lords.  He  therefore  prayed  to 
substitute  the  term  *  order'  for  that  of  *jodg<* 
<  roent.'  The  Court  declare,  their  having  uoed 
the  term  *  judgment'  in  the  above-mentioned 
interlocutor,  proceeded  from  their  not  8dver^ 
ing  that  there  was  any  material  differencs 
betwixt  the  words  'order'  and  ^judgmol,' 
and  they  hereby  declare,  that  they  there  a- 
tended  no  more  by  the  word  *  judgment,'  tbu 
by  that  of  •  order  *,'  and  in  respect  of  thio 
declaration,  they  find  no  occasion  to  alter  the 
former  record.]  A  second  appeal  was  entefc^ 
in  this  case,  aAer  the  interlocutor  dismissiof 
the  libel ;  but  this  was  remitted  to  a  committee, 
who  never  reported  on  the  matter. 

'^  Soon  afterwards,  this  question  was,  how* 
ever,  carefully  considered,  as  far  at  least  as  relsieo 
to  interlocutory  ortlers,  in  the  importaot  caoo 
of  ;Muugo  Campbell ;  where  an  appeal  wn 
taken  against  the  interlocutors  of  Court  sus- 
taining their  jurisdiction,  and  finding  the  librl 
relevant.  Lurd  Mansfield,  on  this  occasioo, 
entered  fully  into  the  several  reasons  for  retuv 
ing  such  appeals,  esj>ecially  before  the  issue  of 
the  trial ;  aad  the  petition  was  rejected  ac- 
cordingly. 

y  Ne\erthele8S,  it  was  thought  desirable  to 
bring  this  controversy  to  a  solemn  and  decistvo 
judgment,  as  relative  to  the  case  also  of  an  ap- 
peal taken  after  conviction  and  sentence.  A 
Setition  was  therefore  offered  for  Alexander 
lurdison  and  John  Miller,  two  persons  coo« 
victed  of  sheep- stealing,  and  under  sentence  of 
death.  And  this  having  been  remitted  to  a 
committee,  the  Ho*  ie  of  Lords  determined  oa 
their  report,  March  10,  1773,  '  That  the  sii4 
petition  and  apj»eal  is  not  properly  brought,  asd 
that  the  same  be  and  is  hereby  rejected.' 

''  That  judgment,  in  itself  decisive,  hassiooi 
been  confirmed,  with  other  two  [see  Mae* 
laurin  681]  to  the  same  purp(»se:  one  in  lbs 
case  of  Bywater,  io  spring  1781,  who  coon 
plained  of  a  decision  repelling  an  objectioait 
arrest  of  judgment,  and  pronouncing  seotcact 
of  death;  the  other  in  the  case  of  Hobcrtswi 
and  Berry,  [May  Sth,  U93,  aia  it  in  this  C^ 


i3?ri 


Jot  Incest  and  Murder^ 


10  b«  made  public,  of  wliicti  the  following  is  ta 
ttothentic  co[ty  : 

••  J  lirnleniiDt  Patrick  Ogfilirfe,  brollier-ty^r- 
man  to  tfi  '  snl  Thomas  Og^ilvie  of  East- 
ruilHt  <:•  mvMflf  »|)on  the  brink  of  ihis 

mortal  tiu  ...lu  ..it^uiity  ;  oocl  as  I  linrc  btit  few 
boarti  to  livr,  wouUI  chuse  to  employ  then)  in 
the  wiiy  that  H-oultl  mntit  cooduce  to  my  eli^r- 
tial  hii]»|iitie!i!*:  nnJ  Ihotit^h  my  years  be  lew, 
Iftd  my  6I1IS  mntiy.  yet  J  hope^  through  Goii's 
Pi  ami  llie  ititerpusition  of  my  blewsetl  He- 
wer, that  the  t^utes  of  Ileat'fii  *vUl  not  be 
shtil  upon  me,  in  %vhaitver  view  I,  a^  a  crlmi' 
ttalf  may  be  lookeil  on  liy  the  t^enemhty  of 
fDankiniT;  and  I  hope^  those  who  be)(l  knew 
nie«  will  <lu  me  justice  when  I  nui  gone.  As 
to  the  crimen  I  am  acco^ed  of,  ihe  trial  itself 
will  ahew  the  propensity  of  the  witoesxes, 
where  ciiriliiy,  and  possibly  fcdly,  are  expUiuetl 
into  actual  i^uilt  ;  und  uhidi  possibly  had  tht* 
^ffater  ertVrt  in  mttkiti^  Ihem  bidieved ;  and 
of  both  nimrra  tor  which  I  am  now  doomed  to 
suffer,  1  declare  ovy  Innocence  f  and  that  no 
pcTiiou«ion  ctiuld  efer  have  made  me  conde- 
•cend  to  them* 

*•  1  freely  forgive  every  person  concerned  in 
ibif  metaocholy  atfair ;  and  whorein  any  of 
thtrm  have  been  faulty  to  me,  1  pray  God  lo 
forgive  ihi-m. 

*"*  My  counsel  and  doers  have  dooe  their  duty 
for  mei  for  u  hich  I  thank  them  stncerely,  con- 
aidering  llie  care  they  have  taken  of  me,  and 


lection^  two  piTsons  mttler  sentence  of  iinpri- 
aonmeot,  for  priniio{^aiid  pnldiihtoif'n  seihtioiH 
libel.  On  the  toniier  of  these  occasions,  lord 
Atantdieltl  a^niu  entered  tit  targe  into  the 
history  of  this  matter,  f|nd  deluded  the  reasons 
•gaina  reteivini^  the  pctthoo:  on  the  latter, 
U  WMa  altempti'd  to  be  shewn,  that  the  otlier 
prrcediotfi,  heiii^  :dl  in  truls  tor  i'eloiiy  and 
capital  crime's,  were  not  dcA!i*ive  of  such  a  case 
ikM  thia^  where  the  sentence  wa^t  of  itnpriBon- 
meut  only,  im-  \%\ml  in  England  would  be 
termed  a  mi^itemcanotir, 

"  After  detailing  this  srriea  of  hiefb  anthori* 
ties,  may  I  iiresuuie  la  add,  in  the  close  of  all, 
iliac  in  the  cutinte  of  my  researches,  which  I 
have  cit  1  '.  to  tlie  oldest  date  of  which  we 

l»ave  ai:  record  ot  the  proceedinga  of 

llieJukUMiM  iiuii  his  depntii*a,  I  have  not  met 
with  iriy  thin<^  in  the  uuture  of  an  appeal  to 
parliautent,  beyond  a  mere  prote«>t  that  never 
fi^ai*  prosecuted ,  or  «hich  teud>*  in  anywise  to 
0hake  that  opinion  of  our  ancteni  coutKe  of 
practice  [Mr.  A  root,  in  a  note  to  p*  100  of 
him  Collect  inn  of  Criminal  CascK,  delivers  a 
po«irive  opinion  for  Che  competency  of  appeals, 
ftnd  thi^,  he  ihaya,  m  founded  upon  his  aearch 
kilo  the  tmoka  of  Adjournul  from  1^36,  to  (he 
|»r«r«enl  times  Hut  he  haa  not  directed  the 
r«adfr  to  tht!  particntnr  caves  or  procerdings, 
Hrliich  lend  lo  ihe  aummrt  of  hi^  o)iinion]  on 
which  (he  n^ptftt  of  the  Lord  Advocate  in  the 
^atM^  III  Oifdvie,  nnd  thejudifm<«ntfi  in  the  other 
ciiM^,  are  iMttiomcd/'  lfnmc*a  Com  men- 
Uim,  0.  l\i,  i  Ut  vol,  'I,  p.  4UV. 


A,  D,  1765-  [1338 

am  Boiry  it  ii  not  io  my  power  to  give  them  a 
belter  reward. 

'*  Ttie  miiiitttera  of  tbta  city   have  been  a( 
jjrent  trouble  ulvnit  my  eternal  stale,   which  i 
liKVf  nUvuy^  ifiAlcrully  acknowledged^  and  ivilfi 
do   to  my   lawt  breath,  lor  the  care  they   havfll 
been  (dr'UMefl  to  take  of  me:    1  am  sorry,  tima 
bein^r  ao  precious   now,   I  have  it  nut' in  mjfl 
)>oiver  to  I  xpitw  my  gratitude  more  ^o,   lop 
their  g<K)dnc<i«  nod   attrndance  towards   me| 
and  I  hope  iheir  labrmrs  in  my  behalf  wilt  no 
l»e.in  vain.  fl 

^*  Ca|)rain    Ja^ies    Robb,     and    the    olheFi 
keeper*  of  the  prison   under  him,  have  aIho 
nhewn  me  (rri-at  kindnc<i<4  aince  my  contioe« 
nient,  Ihr  ivlnch  1  thank  them,  and  thougiii  i|( 
ray  duty  to  declArc  ilit^  Ma  me, 

*'  i  desire  to  die  in  peace  with  all  men,  eveq 
my  greatest  enemies,  begging  forgiveoeaa 
them,  as  1  hope  for  it  from  that  God,  in  whoA 
pteseiic£  1  am  soon  lo  appear  \  hoping  for  th 
pardon  of  my  siins,  and  entrance  into  eterna 
bliss,   through   the  merits  and  intercession  i 
my   Redeemer,  to  whom    1    recommend   m^ 
tcpirit :  Couie,  sweet  Jesus,  come  ([uickly,  an 
receif  e  il  I  (Signed) 

'*  PaTRtCK  OGIX.VIE." 

•*  P.  S.  Mean  time  I  beg  leave  to  clear  Mii 

John  Feulon  of  on  affair  laid  to  his  charged 
such  as  his  being  guilty  of  kcepiofr  me  froii3 
making  a  confes><ion  lo  the  world  before  1  died  ; 
this^  I  hope,  will  be  a  warnutg  for  the  future 
from  «uch  like  mistakes  to  the  world,  and  hope 
they  will  be  sorry  for  their  false  aiispicion 
now,  '(Stgned) 

*♦  l*iT«lCK   OCILVTE*" 

«  Edinburgh,  Tolbaoth,  Ntw,  12,  1765." 

On  ihe  18th  Of  November  1765,  the  Higl^ 
Court  of  Justiciary  met,  agreeable  to  their  ad- 
journment ai*  the  t6tli  of  August ;  when  the 
coniideration  of  the  case  of  Mrs.  Ogitvie  waa 
resumed,  and  the  midwives  appointed  by  the 
Courl  to  visit  her,  having  emitted  their  declara- 
tion upon  oath,  thnt  they  adjudged  her  lo  be  in 
the  sixtli  month  of  her  pregnancy,  the  Court, 
in  coosf^quiftice  thereof,  again  Kuper<eded  the 
pronouncing  of  sentence  until  the  second  Moq- 
day  in  March, 

Mrs.  Ogilvic  was  delivered  of  a  daughter, 
February  ''i7,  1766,  in  the  ToUuMnh  ;  from 
wltencc  »he  loimd  means  to  escape  on  the  i^tb 
of  March;  the  Court  of  Justiciary,  who  met 
on  the  loth,  having^  (mi  urcount  of  her  Wing  so 
latf'ly  broMtjhl  lo  bed,  further  adjotiMied  Vo  ihe 
17th  ;  on  which  day  ahc  waa  to  have  received 
sentence. 


I  conjecture  that  the  Opimon  signed  <*  A. 
M*Cnriy,"  which  is  printed  above,  was  that  of 
which  I  hi*  nuMuation  gave  rii^ic  lo  the  reboke 
mrutionid  by  Mr.  Hume  in  tlie  following 
pasaagc : 

**  For  pfCKcrvallon  of  ihc  amhonty  of  courti, 
and  prontouon  oi  the  a\^e4^  %a;3Aic^«.o^N^'-«S.^^- 


of  wlMilfloe?er 
rily, 


t  of  juftiee,  id  Scotland  ef ery  jnd^, 
B?er  degree^  has  power  to  pooitb 
,  aod  m  hit  own  motion,  all  aocfa 


eonrt  dnriag  the  pragreaa  of  a  trial,  aa  are 
oitbtr  a  dittorlMBee  of  the  judge  in  the  exorciap 
of  bia  fdnetiona,  or  a  Tiolation  of  that  reapec 
and  deferonee  wbidi  ongbt  to  be  obaerrod  to 
warda  him,  when  proeoediog  in  hia  offiee, 
Vbo  hindraaee,  tberefore,  or  molcatation  oi  tlK^ 
SMoara  or  otber  officera  of  oonrt  in  their  duty  : 
the  oae  of  anj  threatening  or  oontomelions 
■peach  or  geatura  there  with  relation  to  the 
jodge  or  the  trial :  any  open  expreaiion  of 
oither  cenaore  or  approbation  of  the  proceadingi 
of  the  judge  or  the  jury,  aa  by  aeoiaoiation  or 
otherwise;  [feetheeaaeofaman  ined  forap- 
pfamduig  open  the  aeiinittal  of  Stone,  a,  d. 
1790,3  nay,  the  wtlfbl  and  repeated  breaking  of 
alienee  in  ooort:  all  these  are  exaqsplca  of 
thia  aart  of  Uameabie  eontcaipt,  for  which  the 
nagialrate  ouiy  repro? e  the  delinquent  of  bis 
own  knowledge,  and  upon  the  m»ot.  All  wilful 
diaobedienoe  or  groaa  neglect  or  the  ordera  an^ 
^iccapta  of  court,  in  matters  relative  to  anj 
ttjal,  is,  in  like  manner,  neceaaary  to  bo  rah- 
dued  without  dela^ :  otherwiae^  tne  .course  ot 
justice  would  be  liable  to  be  atopped  by  the  re- 
.  ftaaal  of jurora  to  serve,  or  of  witnesses  to  appear, 
or  to  answer,  and  the  like. 

**  It  is  eqinlly  indispensable  to  repress  in  the 
•afloe  speeoy  and  eflectual  manner,  all  attempts 
which  may  be  made  with  relation  to  any  tnal 
dqiMenifing  at  tho  time,  or  which  has  recently 
been  ao,  to  alander  the  proceedhigs  of  conrt, 
or  to  depreciate  the  character,  or  sully  the  ho- 
nour, of  the  judges ;  or  to  impose  on  their  wis- 
dom, and  pollute  the  channela  of  iustice,  to 
the  prejudice  of  a  fair  and  unbiassed  trial,  be- 
tween the  parties.  In  former  times  they  scrupled 
not  summarily  to  inflict  high  corporal  pains,  for 
transgressions  of  the  first  of  these  kinds.  As  io 
regard  to  Donald  Campbell,  February  24tb, 
1673,  who,  in  the  course  of  a  trial,  when 
standing  among  the  multitude  by  tbe  court- 
house, had  openl^r  accused  the  earl  of  Athol, 
justice-sreneral,  of  gross  partiality  and  corrup- 
tion with  relation  to  that  case :  he  bad  sentence 
on  this  account,  to  stand  two,  liours^upon  the 
cuck-stool,  and  there  make  public  confession  of 
his  fault,  and  to  have  his  tongue  bored  by  the 
common  executioner."  [As  to  the  validity  of 
precedents  of  mere  acts  of  power,  see  vol.  8, 
p.  79.]  **  Mora  lately,  with  relation  to  the  trial 


ISaBf]  5  GEORGE  m.  TfuitfK.Nah%mdP.Offki€.  [19» 

of  Navn  and  Ogihie,  and 
had  been  convicted,  certain 
buked,  and,  on  aeeomit  of 
were  dismiaaad  withoat  fartker  ewsuw,  fv 
their  fauH  m  poblishing  nn  Opiinon  of  Englhk 
eoanad  en  the  caae,  neeoasponied  with  nal« 
highly  injoriooa  to  tho  Comt  and  the  Jn^. 
In  a  adll  kter  inatanoe,  Fehnmir  S9,  1799^ 
[aee  the  Caae  of  Anderaao  and  o&era  in  tbn 
year]  when  aa  aoeoant  bad  heoB  pnhKsbei  sf 
a  certain  trial,  equally  slandaiuwa  of  the  an- 
ceediiys  of  the  Gwwt,  and  cntoreplaaua  or  dw 
persona  of  the  judges,  and  wheio  the  oAnea 
waa  not  followed  with  the  liko  nyaaplaBBSsf 
contrition,  tbe  culprits,  lohnatoa  and  Dna^ 


mood,  were  aent  to  gaol  lor  three 
till.they  should  find  anrety  fwr  their  good  be* 
haviour  in  time  to  come."    Hunae^o 
vol.  1,  p.  319. 


As  to  writs  of  error  in 
England,  see  in  this  Collectioo  the  caaeasfjir 
Thomaa  Armatrong,  vol.  10,  p.  ids,  aad  SM 
pp.  116,  et  ieg. ;  of  Asfaby  and  Wliite,  voL  1^ 
p.  695,861,  el  ieq.;  of  Wilkea,  ▲.  o.  IfH 
I  1770,  and  Mr.  Uaigrave*s  learned  nnilhiiliw 
'  concerning  writs  of  error  in  criminal  ciaaeSj  Jmt 
dical  Argumenta  and  Collectioos,  yoI.  1,  p^  ML 
In  the  preface  to  which  volume  that  cauMSt 
lawyer  notioea  that  though  he  had  not  than  «^ 
fered  hia  own  opmion  **  he  baa  often  tha^rit 
upon  tlie  aubiect;  and  it  ianot  unpiobsBi^ 
that  he  may  hereafler  commit  to  writing  hii 
sentiments,  not  only  upon  the  natorn-er  Iht 
claim  of  the  subject  in  finjghmd  to  call  tiie  ap- 
peUant  jurisdiction  over  cnmea  into  action  s  M 
alao  on  the  controversy,  which  baa  mora  ikm 
once  been  agitated,  on  tbe  ezisteiice  of  aaeh  a 
jurisdiction  over  the  supreme  criminal  eonrt  ii 
Scotland."  It  is  therefore  to  be  hoped  thsl 
the  matter  will  receive  a  full  diacuasion  in  bil 
most  valuable  '  Jurisconsult  Ezercitations'  nov 
in  course  *  of  publication.  See  some  importsat 
matter  concerning  the  right  to  a  writ  of  emr 
in  criminal  cases  in  England,  in  the  Stm 
Parliamentary  History,  vol.  5,  p.  445. 

Note;  by  the  Commons'  Jooroal  of  Sib- 
bati,  4"*  die  Maii  1  Will,  et  Mar.  it  appain^ 
(hat  leave  was  given  to  bring  io  a  Bill  **  Ibrio- 
gulating  construction  upon  the  atatotea  im 
treason  ;  and  trials,  and  proceedinga,  and  wriH 
of  error,  in  cases  cf  treason.'*  And  It  wm  si^ 
commended  to  Mr.  SachevereU  to  likooaittf 
tbe  Bill. 


Trial  (if  Dr.  Hemt^. 


A.  D.  17.i». 


[U 


47. 


I 


The  Trial  of  Flouence  IlENSEr,  M.  D.  for  High  Treason;] 
holden  at  the  Bar  of  the  Court  of  KingVCcuch,  in  Weat- 
minster-liall:  Before  the  Right  Hon.  William  Earl  of  Mans- 
field,  Lord  Chief  Justice,  Sir  William  Dennison,  Sir  Michael 
Foster,  and  Sir  John  Eardley  Wilniot,  knts.  Justices  of  the 
said  Court,  on  Monday  the  I2th  day  of  June  ;  32  George  II. 
A*  p.  1758.  [Burrow's  Reports,  temp.  Lord  Mansfield^  vol,  l, 
p.  642.] 


Rex  vtriu$  Flohlt^ce  Henseit,  M.  D. 

)N  Moi>»!ay  8tli  of  May  1758,  the  Jefend- 
Dt  irui  liroufflit  into  court  hy  the  kee[»«r  of 
fewgute^  upon  a  llaheas  Cnr|itis  direcled  to 
inii  commanrJititf  him  ^*  to  hrjii|f  tip  his  boily." 
Ve  ap|H>iirei]  (upim  the  reuihti^  of  the  retiini) 

I  Imve  lieen  commtttrit  by  warrant  under  the 
•ncl  And  fteal  af  the  earl  of  Hohtertiess,  tine  of 

II  cnttjesty's  principol  secretaries  of  fitale»  for 
.1         j^f*n  ill  adhering^  to,  and   aidinj^  and 

^lini;  with  the  kinf^'s  ent^mieK  ;  tind  to 
I-  .iLiHimd  in  his  ruatody,  hy  virtue  of  a  second 
arm  lit  of  tlie  hke  kind. 
Mr,  AUorney  General  prayed  tliat  the  re- 
iirn  mii^ht  Iw  filed. 
OmH.  LHitheBied. 

Mr.  Aiiorney  Gtnernl  then  informed  the 
onrt  AOil  tlie  deft-ndarit^  **  Tlial  there  waa  an 
kihctnietil  of  hijjh-lreaiion  found  u^raJnatt  the 
cfeodant:^'  (IVhich  indictment  was  sfi  found 
If  Ihc  ifrand  jury,  hy  itself  ttiuf^ly,  and  hroupfht 
tlo  courts  f>iu4fly*  hy  them  on  Tuesday  last) 
i^iih  which  indictment  the  ikfendaiU  heioij 
ow  chtrgeJ,  %nv\  hetrijf  called  u^ion  hy  the 
econdiry  of  tlic  Cro^vu  ofiice  In  hold  up  his 
lind,  the  Court  ordered  tlie  indictmeut  lo  be 
Mill  In  him. 
Put  the  Court,  (hefore  it  was  read  to  hini.) 
iked  him,  "  Wiietlier  he  di^mred  connwel  to 
[*  as^igneil  to  him;^'  ond  if  he  did  dmire  to 
«?♦•  *■■ ''  ^hen,  *♦  Whom,hy  name,  he  de- 
red  a^ued  to  bim/' 
TI  in»i  !u  .  i.i.liri,^Iy  the  Court  as- 
K«n,  nnd  tlie  ho- 
^:.  I  i  aud  Mr,  John 
^kp*  tor  lii^i  attorney. 

H^  indictment  was  then  read  vrrhailm  to 

hit,  hy  the  rxpre*«!i  direction  of  the  Court : 

itlhunvfh  he  hjid  a  copy  of  it  tlvc  days  ag-o  | 

ijT^eahle  to  7  W.  .1,  c.  :j,  **  fur  rcj^ulating  of 

laltin  L'uffei  of  treason  iind  mi^priAion  oftrcu- 

in,^*)       l^pon    which   inciietment   bein^f   thus 

Eftif   to  him   by  Mr.  Barlow,  he  wa«   imme- 

V        '     '  Ify   Vfr   Alhorpe,   Kccondary  of 

I',)  *''  \V  Iteiiier  he  w  jih  jjuilty  or 

'Pi  iiie  hitjh  til  :i^oi>  tln*r*^iti  rhari^cd 

"     To  whirti  tie  ph^adcd  Not  fitiilty, 

tiendant,  after  he  hud  ploadnl  **  Not 

ft**  iotitnated  to  Ui«  Court,  *«  That  ke  had 


received  hard  and  severe  asage,  during  bis  con- 
finement." 

Mr.  Attorney  Genera}  absolutely  disaTOired 
hifl  bavinijr  receired  any  severe  treatment  at 
all  ;  and  assured  hitn  that  he  would  be  treated 
tvith  all  possible  humanity,  8o  fur  as  waa  coit« 
sistent  with  bis  being  aafely  secured  froin 
escaping. 

Then  a  day  was  fixed  for  bis  trial;  ?js» 
Monday,  12lli  June  1758. 

Mhich  being  siitled,  without  any  sort  of  ob- 
jection on  any  part,  the  defendant  was  re- 
tnanded  lo  Newgate* 


On  which  Monday  12lh  June  17 hQ,  at  the 
trial,  the  deteudant^s  counsel  took  ejrception 
to  the  reading  of  two  papers  (W  1,  2)— being 
the  rough  draughts  ot*lrtters  written  by  hira« 
self,  and  found  in  a  bureau  where  he  kept  hta 
linen  and  pafiem  ;  and  which  were  on4y  intro*- 
ductory  evidence;  not  any  part  of  the  overt- 
acta»  which  were  to  i^upporl  the  species  of  ihe 
treason  charged  U|>on  htm.  It  was  objectef]  to 
them,  thtti  they  were  not  suflicieotly  proved  to 
be  ^iiondm  his* custody  ;  norsnffirienlly  proved 
to  he  big  hanil-uriting  :  for  mere  comparisoa 
of  banils  is  not)inf]icient  to  support  their  being 
read  against  die  defendant. 

TheC'ouusel  for  the  'rown  answered.  That 
the  i>ftper<4  being  found  in  \m  cuHtody,  and  hia 
hariif  having  been  i^uffinentl^  proved  hy  persons 
who  had  seen  htm  write,  it  was  sufHoieut  to  in- 
title  the  crown  to  read  them  ;  thnui^h  the  jury 
arc  to  judjje  nf  them.  And  they  mentioned 
L«yer*s  c«Ne  [vol,  16,  p.  03]  ;  and  lord  Preston's 
caae  [vol.  t'2»  p  645]  ;  and  Francia^s  case  [vol. 
16,  p*  B97]  ;  and  Siilney'a  cas*  [vol.  9,  p. 
817]  ;  and  B«channan*s  cost*  in  the  north,  in 
1716  ;  and  Crosby's  case.  Skinner  578,  57!>, 
an4l  1  Ld,  Haym.  H^,  K.  V  Rex.  v  Crosby 
aliiiK  I'liihuM :  where  cniiiparii^on  of  handa  waa 
idloued  ti>'  he  good  evitlcnce,  if  the  pa[iers  arcs 
found  in  I  he  custody  ofthe  tierton  hima<;)f.  Hir 
John  Wedder hurtles  caie  [vol.  18,  p.  4^.] 
Sir  Cholmeley  Oeriug'a  case^— for  murder; 
(i.e.  Rex  I?.  ThorDhill.) 

The  Court  ot^anitnouily  over-raled  the  ob* 
jectiou.    These  jmpe»  v^^t^  Il^^ssq^  w\^^ — 


I34S] 


S2  GEORGE  II. 


Triid  of  Dr.  Henteif, 


[m 


ody  ;•  and  they  ha?e  been  sufficiently  proved 
by  persons  who  hare  seen  hi  in  write,  to  intitle 
the  crown  to  read  them. 

Then  the  evidence  for  the  crown  bein^ 
opened,  and  eiven  ;  (which  consisted  chi^y  of 
letters  to  and  from  the  prisoner ;)  and  beinii^ 
alieg^ed  to  be  a  proof  of  overt  acts  of  two  dif- 
ferent sorts  of  treason,  viz.  Of  compassing*  and 
imagining  the  death  of  the  king,  and  also  of 
adhering  to  the  king's  enemies ; 

Mr.  Solicitor  General  declined  summing  up 
tke  evidence;  choosing  to  reserve  himself  for 
the  reply. 

Which  the  Court  held  to  be  within  rule,  if 
be  so  thought  proper. 

So  the  Counsel  for  the  Crown  rested  it  here. 

Then  the  Coonsel  for  the  Prisoner  (Mr.  Mor- 
ton and  Mr.  Howard)  began  upon  his  defence. 
They  declined  giving  any  evidence  on  the  part 
of  their  client :  but  they  insisted  upon  these 
two  topics,  in  his  defence ;  viz. 

jst,  That  no  one  act  was  proved  upon  him 
in  Middlesex  ;  where  the  indictment  is  laid. 

!2dly,  That  the  evidence,  if  it  had  lieen 
brought  home  to  the  defendant  so  as  to  affect 
bim,  yet  would  by  no  means  have  amounted  to 
a  proof  of  any  overt- act 8  of  either  of  the  two 
before  namea  species  of  treason. 

For  they  were  only  letters  of  correspon- 
dence. And  if  a  correspondence  of  this  na- 
ture, either  within  or  out  of  the  realm,  had 
been  treason  in  general  and  in  all  the  king^s 
subjects,  within  25  Edw.  3,  it  would  never 
have  been  particularly  enacted  to  l)e  capital  in 
a  soldier,  by  the  Mutiny  Acts  of  3,  4  Anne  c. 
16,  §  85,  fo.  ^66,  and  30  G.  2,  c.  6,  §  1. 

N.  B.  The  former  makes  it  treason,  to  do  it 
either  *'  upon  land,  out  of  England,  or  at  sea  :*' 
the  latter  makes  it  capital,  or  such  other  pu- 
nishment as  a  court  martial  shall  inflict,  to  do 
it  *'  upon  land  within  or  out  of  Great  Britain, 
or  upon  the  sea." 

Mr.  Torke,  his  majesty *s  Solicitor  General, 
then  proceeded  to  reply  :  in  doing  which,  he 
made  only  some  (General  uUservations  upon  tlie 
evidence  that  had  been  given  on  the  part  of  the 
crown,  but  did  not  sum  it  up  particularly,  (as 
the  prisoner  had  given  no  evidence  at  all ;)  but 
confined  himself  to  what  the  defendant's  coun- 
sel had  urged  in  his  favour,  in  point  of  law  and 
reason. 

lie  answered  thus,  to  the  objections  which 
they  had  insisted  upon. 

1st,  That  the  .5lli  letter  given  in  evidence 
bears  date  *'  from  Twickenham,*'  which  is  in 
Middlesex.^  Which  alone,  is  a  full  answer  to 
the  objection. 

2dly,  That  the  correspondence  proved  was, 
in  point  of  law,  an  evidence  of  an  overt-act,  of 
each  of  the  before  mentioned  species  of  treason. 

*  See  East's  Pleas  of  the  Crown,  ch.  2, 
S.  56,  and  the  authorities  there  referred  to. 

+  As  to  this,  see  East's  Pleas  of  the  Crown, 
cbap.  2,  §  58. 


First— Of  compassing  and  imagining  ie 
death  of  the  king.  To  prove  which,  he  cUd 
1  H.  H.  P.  C.  167.  Cardinal  Pool's  case  S 
Inst.  14,  S.  C.  And  so  Ld.  Ch.  J.  Holt  iIm 
held,  in  Gregg's  case;  [toI.  14,  p.  13711 
(which  he  cited  from  a  manuscript  report  « 
judge  Tracy's)  and  baron  SmylD  and  Mr. 
Just.  Dormer  teemed  to  ame  to  it.  And  b 
lord  Preston's  case,  also.  lid.  Ch.  J.  Hottw 
held. 

Secondly— It  is  also  an  otert-aet  of  ad- 
hering to  the  king's  enemies.  In  Gresi:'! 
case-—,  it  was  agreed  by  all  the  judges,  *<  Thit 
such  letters,  though  intercepted  before  tbcj 
arrived,  were  so." 

Lord  Mannfield — We  hare  seen  three  r* 
ports  of  Gregg's  case ;  viz.  One  by  Ld.  Ch. 
Baron  Dodd';  another  by  Mr.  Just.  Piriee; 
and  this,  by  Mr.  Just.  Tracy  :  snd  they  iK 
three  agree '^*  That  such  letters,  though  is- 
tercepted,  were  overt-acts  of  eech  species  if 
treason  before- mentioned ;  and  that  iJI  tbi 
judges  agreed  in  this." 

Mr.  Solicitor  General — And  as  to  the  iti* 
tutes  of  queen  Ann  and  the  present  king,  ike 
statutes  of  7  Ann.  c.  4,  and  |he  late  Matia/ 
Act  of  30  G.  3,  c.  6,  go  further  thau  the  Act  m 
25  Ed.  3,  does. 


Lord  Mansfield  snmmed  up   the 
As  to  the  law — levying  war  is  an  overt-act ef 
compassing  the  death  of  the  king :  an  overt-act     I 
of  the  intention  of  levying  war,  or  of  briofis^ 
war  upon  the  kingdom,  Ih  settled  to  he  an  nvtrt- 
act  of  compassing  the  kinfir's  death.     SuHcit- 
ing  a  foreign  prince,  even  in  amity  with  tUi 
crown,  to  invade  the  realm,  is  such  an  ovfrt*     ^ 
act :  and  so  was  cardmal   Pool's  case.    koH 
one  of  these  letters  is  such  a  solicitation  of  a     i 
foreitrn  prince  to  invade  the  realm.    ,  | 

Letters  of  advice  and  correspondence,  aod 
intelligence  to  the  enemy,  to  enable  thnn  is 
annoy  us  or  defend  themselves,  written  asd 
sent/in  order  to  be  delivered  to  the  eneny» 
are,  thousrh  inlercepte<l,  overt- acts  of  l«4 
these  species  of  treason  that  have  been  mes- 
tioned.  And  this  was  determined  by  all  the 
judges  of  England,  in  Gretrg's  case:  whm 
the  indictment  (which  I  have  seen)  it  much 
like  the  present  indictment.  The  only  doobc, 
there,  arose  from  the  letters  of  intellis^eacc 
being  intercepted  and  never  deliverHl :  fcw 
they  held  *<  that  that  circumstance  did  aei 
alter  the  case." 

As  to  the  fact,  in  the  present  case— The  jury 
are  to  consider  whether  they  were  written  fcy 
the  prisoner  at  the  bar,  in  order  to  be  ^ 
livered  to  the  enemy,  and  with  intent  tocta- 
vey  to  the  enemy  such  inteliiijreiiee  as  nifM 
serve  and  assist  them  in  carrying  on  vtf 
against  this  crown,  ojr  in  avoidiujj^'  the  dettis^ 
tions  of  our  entcrprizes  and  armaments  agaiitf 
them. 

Then  his  lordship  went  through  the  evidcMi 
particularly :  and  having  finibhed  his  fMT 
miog  it  up,  be  proposed  to  tlie 


Jot  High  Tretmm* 

Hiey  a^eed  to  it  ftti  both  nides,  ♦*Thil  the  jury 
vtiCHitil  take  the  letler^  out  wiih  ilif  tii." 

As  lo  ihe  locality  of  the  facts — He  &ai(l»  it  is 
cetl&iii  tttat  some  one  orert  act  must  be  proved 
in  the  coiinly  where  the  indictment  ii  laid  :  in- 
ileed  if  oiiy  one  he  so  proved  in  that  rounly » ii 
ITjH  let  m  the  proof  of  others  in  other  countiea. 

Now  here,  one  of  the  letters  Is  dated  at 
Tivickenliam,  which  »a  io  Middlesex. 

The  Jury  went  out,  a  Utile  after  eight,  tak- 
ing the  letters,  &€«  viitli  lliem  ;  and  soon  sent 
tu  ddire  leave  to  have  candles  \*  which  the 
officer  >%  ho  hrriifght  in  their  mes&age  &i)'hI  he 
WBi  iwoni  **  not  to  let  tbcm  have;''  uolesa  it 
•hould  be  ao  ordered. 

Lord  il/rm^^<;/J  asked  the  couiisetf  if  either 
fttde  ohjected  tu  it.  And  the  couns€-l  on  t>olh 
■idea  a|;reeitig  to  it«-Leiive  was  ^iirn  ac- 
cordingly :  anil  Ihey  hud  llicm. 

In  half  an  hour  the  Jury  returned,  and 
brought  in  their  verdict,  **  Guilty/* 

Lord  Manifield  obterved,  a<i  to  the  two  acts 
of  pirliaiiierit  off  Anne  o.  4,  and  30  G,  S.  c. 
6.^Th¥l  they  curritfd  llie  mutter  fnriher  than 
Ihe  law  extended  to  before:  and,  betiidps  that, 
Ihey  were  IkjiU  of  them  declar^ittity,  an  well  ^h 
eoa<*tiu^;  whtcli  wait  calculutnl  on  ^turpoise  to 
avoiil  the  very  ubj^ctinn  that  ha«  b^eu  oow 
takrn:  (v.  ante,  p.  1343) 

The  dpfi*ndiMit  Mas  reminded  to  Newfjrate; 
•nd  a  rule  mudo  **  to  bring  him  up  a^uiii  un 
Werlnf*.hy.'* 

Ami  the  prisoner  beinif  aic^nlincly  lii-i>nglit 
to  the  bar^  on  this  dHy  *th'»ui  4  o'cttH-k  io  the 
afterituon,  by  the  ke«*per  cif  Newgate,-* 

Mr.  Atiorn^^  General  pniyed  the  jiitlgment 
oflheCVmrt  upon  tiiiti. 

Mr.  AtkifTftt  Secondary  of  the  Crowo-otiice» 
called  upon  iiim  to  hold  up  his^  huiul  \  ami  re- 
minded him,  **  That  he  h^d  l>t*en  tndicu-d  of 
hftfh  trra<jon,  and  thereto  had  |ih<uilnl  not 
l^iilty  ;  «nd  lor  hin  trial  tisil  put  hiiii!iclf  U]inn 
Omt  and  the  enunrry,  which  cnuntry  had  fuund 
bifti  guilty;**  and  then  astkrd  him  **  if  he  had 
any  thing  to  way  li>r  him«flf,  why  Ihe  Court 
ptiuuUl  not  pritceeil  to  give  judgment  against 
him  according  to  luw." 

The  pfi«*'in*T  rhereupon  took  out  a  written 
p«per ;  ^nd  rniher  rrnd.  thuu  (»poke  if*     It  con- 


A.D.  MSB. 


\\m 


•  Cuncei^ning  the  unauimity  of  jtirori,  nee 
SmlvD^s  I'rpfttcc,  vol.  l,  p.  xxix,  lol.  8,  p.  730, 
vol.  12.  p.  474 » vol.  H^p.  617«and  IVIr.  liarrlng- 
too*ii  OhservaAtioim  an  there  referred  to,  Mr. 
Sarrtngtou  has  collected  «ome  pnasflgest  relative 
In  trials  in  otiier  countries  by  tweire  men.  As  to 
**  the  unanimity  of  the  twelve  jurors  in  their  rer- 
fTiot^^'  be  ob»ervpN  that  it  ^*  tiiwA  \*e  admitted  to 
hm  a  very  suigular  tnMitutinn.**  For  requiring 
tliit  unanimity,  he  proceeds  to  suggest  some 
conj«*ciural  reasouai,  none  of  which  however  ire 
satisfactory. 

Borne  piirticulara  renpectinf^  the  inatilatton  of 
Trial  by  Jury  are  to  be  found  in  Mjirpher«on*a 
iDfluiry  mto'th«  origick  of  thit  Anglo-Saxona * 


listed  partly  of  an  spolngy,  and  partly  of  t 
sort  of  defence  against  the  change;  togethefi 
with  some  objeciiyns  to   the  proof  of  it  up 
liim. 

The  substance  of  it  was-^that  the  corr^t- 
pondence   with   wliich   he   had  In-en  churged, 
as  treasonable  aniJ  giving  intelligence  to   ao 
enemy  of   his   liege  «ovcreit;n»  wjs   noihmd 
more  than  writing  lellprs  to  liis  own  brotliefl 
wlm  was  HO  fir  from  being  an  enemy,  thai  Im 
was  in  ihe  service  of  the  kiuif's  good   hroihe 
and  faithful   ally,  as  his  mtgrsty  liimttcif  had 
atiied  tlie  king  of  }^psin,  in   hi^  tipeech   In  hi! 
parliament ;  and   that  thi^aif   letters  cnntaine'^ 
uii[y  coffi-ehoufie  newK  and  itlle  tipeculnti«ina| 
but  gave  no  such  intHligeuce  utt  cauld  be  \\%f^ 
ful  or  eten  unknown  to4iu  enemy  ;  nor  did  N  ' 
tray  ^T*y  ot  the  »ecret^  of  thi»  government  r 
their  enemies. 

That  he  had  no  malignity  in  his  henn 
against  the  king  or  his  government  ;  nor  ha 
ever  been  guilty  of  any  iu^propcr  beliHvtour  j 
but  ahvays  conducr*^d  himself  with  decency 
and  duty  towards  his  king  and  country  :  fm 
the  truth  of  which,  he  appealed  to  his  charade 
ami  ctmv^-rsHtion. 

And  ait  to  the  paf^era  which  were  seized  I 
the  messenger,  at  the  house  where  he  lodged- 
they  might  just  as  well  be  the  wuman'ii  of  tti^ 
houHe,  as  his  :  for  both  of  them  had  access  Cq 
Ihe  bureau,  in  which  the  n^ensi^'ngerfciutid  then 

That  the  statute  of  7  W.  3,  c,  3,  §  2  «£  - 
direct!!!  that  there  ahaM  be  two  witnrsses  to  eacli 
o?erl-»ct  of  Ibe  aatne  trexHon.     Wliereas  tii| 
Itimd- writing   had   bten    prttved    only    by   oik 
withif<t«i,  who  could  preteitil  to  know  any  thttii 
of  hi*i  hand-writing  ;  for  ibnt  the  other  thre 
knetv  little  or  noihing  of  \m  hand,  and  coal#l 
scarcely  be  laid  even  to  have  ever  seen  btjri| 
write.  * 

[Note.    The  act  directs  *♦  That  either  boti 
tlie  witnesses  must  be  to  tbe  same  orert^ct,  i 
t^tie  fd   them  to  one,  and  the  id  her  of  them  i 
another  overt-act  of  the  HAme  treason/*  Burrow/ 

\ud  there  was  no  witness  at  all,  he  bsid,  19 
prove  any  act  of  treas«m    coinmitleil  hy  him  irfj 
tlie  county  ot  Middlesex,  where  the  indictmeai] 
lays  the  ntfence  to  have  been  duue.  '1 

He  alleged,  that  this  case  of  his  WAS  the  Bnf  J 
instance  since  the  statute  of  £dw.  A,  nher^l 
giving  iuteDigence  \\%it  \wv\\  holdeii  lo  be  high^  j 
treason.  And  he  said,  that  ns  he  bad  tiot  hatf 
four  days  between  his  trial  and  his  sentenciu] 
(ss  was  usual,)  his  counsel  had  not  had  luffi^^  I 
cient  lime  to  prepare  Ihem»e1fei  in  arrcitt  of  1 
jadgmetit. 

Therefore  ufion  the  whole,  be  played  that 
the  Court  would  either  be  so  kind  to  him  at  to  j 
respite  his  sentence  \  or,  if  that  might  not 
obtained,  that  they  would  W  graciously  plemaeil  i 
to  recommend  him  t»  his  mnjesty^a  mercy.       *^ 

ITe  was  then  asked  *'  If  he  had  any  |i^iiit  oC] 
law  lo  move  la  arrest  of  judgment  ?'*  r 

To  whicb  Uia  auiwfr  mtm  **•  That  be  baJJ 
not." 


Lord  Man^€td  i\^«k 
4ll 


^^^MiX^C«a»V^- 


JiS47J  83  GEOUGE  IL 

goner  had  been  convicted  upon  a  very  full  trial, 
tnd  U|Hio  very  co(^ciil  prouC;  and  that  lie  ap- 
peared upon  the  evidence  to  ba?e  committed 
many  overt- acts  of  treason.  ^ 

He  took  notice,  that  the  pi  isooer  had  even 
policited  this  employment,  fiom  inclination  ; 
M  Meli  as  underlalcen  tur  hire,  to  act  as  a 
■py  ajirainst  his  oun  native  country,  and  to  re- 
veal the  secrets  of  the  king  and  grovcrnment  to 
the  open  enemies  of  both  ;  and  to  give  them 
information  and  intelligence  of  the  enterprises 
and  designs  of  this  kingiloro  aifainst  them ;  and 
all  this,  with  intent  and  in  order  to  aid  and  as- 
•ist  them  in  defending  themselves  against  bis 
iing  and  country. 

He  observed  that  the  enemy  had  manifestly 
fhewn  **  that  they  themselves  looked  upon  tins 
correspondence  to  be  an  aitl  and  assistance  to 
them  ;"  by  their  giving  him  a  stipend,  and 
paying  him  a  stipulated  monthly  price,  as  the 
purchase  and  reward  of  it,  under  a  penalty  of 
Lis  forfeiting  20s,  for  every  omission  of  a 
weekly  letter  from  him. 

He  also  observed,  that  the  prisoner  apprared 
to  have  procured  his  information  of  the  state 
of  our  navy  and  army  and  fmances,  and  the 
olher  matters  contained  in  his  papers  and  me- 
morandums seized  in  his  bureau,  with  that 
very  view  and  intention  of  communicatinif  ihcm 
to  the  enemy  :  and  by  his  letter  of  the  22d  of 
July  last,  he  bad  even  advised  and  invited  the 
enemy  to  invade  bis  native  country  ;  and  to 
bring  war  and  destruction  into  the  heart  of  it. 
The  guilt  of  this  offuuce  arises  from  the  nature 
of  the  correspondence,  which  is  calculated  to 
betray  the  secrets  of  his  king  and  country  to 
the  enemy,  as  a  spy ;  a  treason  of  a  very  dan- 
gerous kind,  and  which  gives  an  enemy  much 
more  aid  and  assistance,  than  a  person  publicly 
and  professedly  declaring  himself  an  open 
enemy  to  his  own  country  rould  (rive  tUent. 

He  laid  it  down  as  a  fioinl  \thich  was  never 
doubted,  **  That  this  ofli-iice,  of  sending  in- 
telligence to  the  enemy,  oftlio  destinations  and 
designs  of  this  kingdom  and  government,  in 
order  to  assist  them  in  their  operations  against 
us  or  in  their  defi-nce  of  themselves,  is  hi<rli- 
treason  ;  even  although  such  a  correspondence 
shnnid  he  intercepted,  \Mtliont  ever  coming  to 
the  enemy's  hands."  And  so  was  the  r«  Rolution 
of  all  the  judges,  in  Gregg's  case.  [Vol.  14, 
p.  1371.] 

And  as  to  the  w  itni  sses  to  the  prisoner's  hand- 
writing.— There  are  four  of  tlicni  that  have 
seen  him  write,  and  swear  to  his  bund,  of  their 
own  knowledge:  and  tlu>^e  tour  witnesses  arc 
Dot  contradicted  by  any  eviilence  on  his  part; 
but,  on  the  contrary,  are  confnined  by  a 
variety  of  circninstanecs. 

As  to  the  puinl  of  louulity — He  snid  that  if 
theie  iiad  been  noeuilence  at  all,  <if  that  parti- 
cular htter  \«hieli  heart  dale  at  Twickenham 
(which  IS  in  .Middlesrx.)  yet  neverllieless  the 

S  resumption  was  si  rung  and  stood  iincontra- 
irte<l  too,  *•  That  they  were  written  in  -Mid- 
dlesex, \Oierp  the  priNoner  resided,  and  where 
t^is  papcm  ivei-e  neixed." 


Trial  qfDr.  Hemsey, 


[IM 


As  to  mercy — Ht*  toUl  tbe  priaoorr,  ibatiki 
was  in  the  king's  breast ;  but  was  do  put li 
their  pruiince:  and  therefore  bis  appbcuiu 
on  that  head,  must  be  elsenbere. 

The  Lord  Chief  Justice  (it  being  a  case  if 
hit: h -treason)  pronounced  ibeaentetice. 

Air.  Attorney  General tlien  m-ivetl,  tbatthi 
Court  would  ap|M»int  a  day  for  the  exccutioa. 

Ijord  Jl/cinx^f/</ desired' him  to  name  a  day. 

Mr.  Peine,  the  defendant's  solicitor,  wd  U 
hoped  it  would  not  be  an  early  day. 

Air.  Attorney  General  said,  be  vraa  wilbD^ 
to  give  as  long  a  day  as  might  l>e  proper. 

Mr.  Just.  Foster  mentioned,  tliat  Dr.  Can» 
roD  [p.  734  of  this  volume,]  had  3  weeks. 

[N.  B.  Mr.  Charles  Radclifle  (vol.  18,  p. 
499,}  bad  only  «  fortuight.    Burrow.] 

Mr.  Peirce  desired  that  this  might  be  • 
month. 

The  Court  and  Af  r.  Attorney  General  very 
readily  agreed  to  a  month.  Accordingly,  i 
was  ordered  to  be  upon  Wednesday  tbe  1  sib  of 
July. 

The  prisoner  was  remanded  to  Newgate; 
and  bowed  respectfully  to  the  Court,  and  cour* 
teously  to  the  bar  and  audience,  on  retiring  — 

8ee  De  la  Alotte's  Case  a.  o.  1781,  amiiki 
cases  in  1794  and  1796;  also  East's  Piesf  rf 
the  Crown,  c.  2,  sa.  16,  SI,  56,  68,  and  Futtsr 
aiid  the  other  authorities  cited  by  Mr.  £a^ 


A  oanre  cil'cnm^tantial  account  of  Dr.  Ret 
sey's  Trial  was  published.  Of  this  ac- 
coMut  1  never  saw  any  copy  but  urr, 
w  hieh  is  incomplete.  8o  far  as  it  e.Mt  oi!?. 
it  is  as  (allows  :* 

Ti:e  Court  beuan  to  sit  about   ten  of  lU 

clock  in  tlie  I'ortiioun,  and  after  the  usna!  jtv 

ciamuiioM   was  made,  the  Clerk  pi  t»ceeiii'>l  •« 

cull  over  a  li»t  ut'  the  special  jury,  who  Uii 

been  previously  summoned  tor  to'trv  tbisim- 

I  portant  cause,  to  tbe  nunil»er  of  one  liuaJr«id 

I  aiul  ihiriy  gentlemen,  or  therrahouts,-!-  all  frei- 

I  hoMers  of  the  county  of  Middlesex.     Whith 

'  being  done,  twelve  gentlemen  were  calleu  uii 

'  sworn  : 

They  were  all  sworn  well  and  truly  Id  trt 
the  n)atler!»  then  depending  l>etweeu  our  sove- 
i  reign  lord  the  king,  and  the  prisoner  at  ibf 
i  bar,  and  to  give  a  true  verdict,  accordiagtt 
j  that  eviilence  which  should  then  aud  thtrebl 
'  prodnc4;d  before  them. 
I      In  the  course  of  which  eleven  of  the  jurf 

i      *  Wherever  the  ftdlowing  account  (vbicfc 
!  manifestly  is  very  incorrect,  I  have  not  aiinfJ 

it,)  is  ineonsistent  with  sir  Jamea  Burrou'sM" 

port,  doubtless  the  latter  is  to  l»e  preterred. 
f  In  the  Annual  lUgister  for  the  year(ML 

1, 1'hnmicle,  p.  98,)  it  is  said,  ihaioa  ' 

and  tbiity  oiM  wara  tuiuiBOiitiU 


1319] 


Jbr  High  Treason. 


were  challenged  by  the  prisoner,  and  two  oo 
the  aide  of  the  crown. 

Clfrk.  Gentlemen,  are  you  all  sworn? 
Officer.  Yes. 

Then  the  Clerk  proceeded  to  read  the  Indict- 
ment against  the  prisoner  al  the  bar,  in  the 
naDner  and  to  the  effect  following. 

Clerk,  Florence  Hensey,  doctor  of  physic, 
hold  up  your  hand. 

"Which  the  prisoner  did. 

Cierk,  Florence  Hentey,  von  stand  indicted 
bv  the  name  of  Florence  flensey,  doctor  of 
pbysie,  late  of  Arundel-street  in  the  Strand,  in 
the  county  of  Middlesex ;  for  that  you  not 
having  the  fear  of  God  before  your  eyes,  and 
that  duty  and  allegiance  you  owe  to  your  king 
and  country,  and  being  uioveil  by  the  instiga- 
tion of  the  devil,  the  evil  suggestions  of  your 
own  heart,  and  the  wicked  advices  and  couu- 
•els  of  the  enemies  of  our  sovereign  lord  the 
king,  yoo  did  traitorously,  villainously,  and 
•ecretly  carry  on  and  hold  by  the  means  of 
divers  letters  and  papers  a  treasonable  corres-, 
pondence  with  the  agents  and  officers  subjects 
of  Louis  the  French  kin^i  anil  ailbcred  to  the 
enemies  of  his  majesty  king  George,  and  you 
did  invite  a  f«»reign  enemy  to  levy  war  in  these 
kingdoms,  contrary  to  your  allegiance  and  to 
mil  the  ties  of  humanity.    You  have  taken  part 
niib  the  French,  the  enemies  of  your  king  and 
oonntry,  and  with  whom  yoy  knew  that  our 
■nvereigii  lord  the  king  was  now  in  o|)en  war, 
and  did  send  to  the  eniiniesof  our  said  sove- 
reign lord  the  king,  from  time  to  time,  and  at 
all  times,  which  lay  in  your  fwwer,  and  to  the 
ntmostof  your  power,  a  great  iiumlier  of  let-  i 
ters,  writings  anil  pafters  containing  a  particu-  ! 
lar  account  and  intelligence  of  what  fleets  or 
■qoadrons  were  titling  out,  the  number  of  men  j 
each  ship  carrietl,  as  also  the  number  %^i'  guns  > 
aad  the  weight  thereof,  and  wberetti  they  were 
■everally  destined ;  with  the  slate  of  the  nation  , 
nith  regard  to  the  prevent  disposiiion  of  the 
people,  the  public  finances,  and  the  like  ;  and  ! 
particularly  in  relation  to  the  late  expediticMi  i 
against  Kochefort,  in  which  you  traitorously  , 
bappened  unluckily,  in  one  of  vour  lftt4*rH,  lo 
mess  on  the  very  nlaceto  which  I  hat  flitet  was 
<3estined ;  all  whicii  you  have  wickedly,  mali- 
ciously anil  designedly  done  to  hurt  and  injure 
.your  own  conntry,  and  lo  subvert  the  i*oiu<ti- 
tation  thereof;  you  therefore  staml  indicH'il  in 
4mo    respects:  *^ First,     For    that    you    have 
•vickedly,  traitomuMly,   and  uiihout  the  leuMt  { 
wovocaiion,    or  nther  moiiie,   imliirinc;    yi>u  ' 
iliefeto,  conipa*iKiiig  iliesacreil  life  nf  our  sf»ire-  ; 
foign  loni  the  king  :    Ami  MeoMiitly,    V»r  that  > 
you  have,  contrary  to  iliat  duty   }ou  owe  lu 
jroar  country,  kept   a  tre>isoiiat»l«*  cnrrespuU'  I 
•wiiOe  with  the  eneinies  of  the  saiil  sovereign  | 
<lonl  the  king  ami  his  siibjeciK,  durmt;  the  time  i 
ibis  iiatinn  was  at  war  with  France.  -  j 

-    To  this   Indictment  you  liaie  pleadeil.  Not' 
■Saihj ;  and  now  you  Maml  «iii  your  deliver-  [ 
,  iikI  God  gmnl  you  a  good  od«.  j 


'     A.D.  1758.  [1350 

Tlie  counsel  for  the  crown  were,  Mr.  Attor- 
ney-General, [Pratt,  afterwarils  lord  chancellor 
C.*am(|en]  Mr.  Solicitor  General,  [('harlea 
Yorke,  after  wards  lord  chancellor]  air  Richard 
Lloyd,  Mr.  Norton,  [afterwards  lord  Grantley] 
Mr.  Perrott,  [afterwards  baron  of  the  Exche- 
quer] Mr.  Gould,  [afterwards  successively 
baron  of  the  Exchequer  and  justice  of  tho 
Common  Pleas]  and  Mr.  Serjeant  Poole;  for 
the  prisoner,  Mr.  Morton  and  Mr.  Howard, 
who  had  been  asMgnod  the  prisoner,  by  a  rulo 
of  Court  of  last  E.ister  term. 

The  Attorney* General  openeil  the  cause 
with  so  much  elocution  and  humanity,  that  it 
must  be  allowed,  in  cases  of  this  nature,  ho 
seems  to  have  introduce  a  new  and  more 
agreeable  method  of  pleading ;  which  was  to 
the  effect  following : 

\Coun$tl  for  the  Crown,  Gentlemen  of  the 
Jury ;  this  is  a  trial  at  bar,  between  our  sove- 
reign lord  the  king,  and  the  unhappy  prisoner 
at  the  bar ;  and,  gentlemen,  I  am  of  counsel 
against  the  prisoner.  Thepiisoner  at  the  bar 
is  a  native  of  the  kingdom  of  Ireland,  about,  as 
I  am  informed,  forty-four  or  forty- five  years  of 
age,  and  studied  physic  at  the'Universiiy  of 
Ley  den  in  Holland,  aud  where  he  took  his  de- 
gree of  doctor,  and  had  a  diploma  given  him 
lor  the  practising  that  useful  art.  It  seems, 
the  prisoner,  as  you  have  already  heani,  is  in- 
dicted for  carry  mg  on  a  treasonable  corres- 
pondence by  letters,  papers  and  writings  with 
the  agents  and  officers  subjects  of  the  French 
king,  who  are  the  enemies,  and,  1  may  say,  the 
open,  avowed  and  inveterate  enemies  of  his 
majesty,  and  of  this  nation  ;  for  compassing  his 
sacred  lift- ;  a  life  dear  to  every  one,  and  tho 
more  so,  by  the  great  length  lleaven  has  been 
grarioubly  pleased  to  extend  it  to ;  ami  for 
vending  letters  of  intelligence  to  the  kind's  ene- 
mies, and  kcH'ping  up  a  treasonable  corres- 
pondence nith  those  with  uliom  this  nation  is 
at  open  war.  In  the  first  place,  gentlemen,  it 
becomes  nere«>sary  for  me  to  lay  before  you  the 
nature  of  the  ufience  the  prisoner  at  the  l»ar, 
Florence  ilens<'y,  doctor  of  physie,  has  been 
guilty  of,  and  what  constitutes  his  airiK*i'ius 
crime.  In  the  year  1756,  on  the  17th  day 
of  May,  liii  iiiajexty  fHSiietl  out  a  declaration 
nf  war,^  against  France,  and  against  all  iha 

*  His  Majebly's  Declaration  of  War  aguintt 
*the  French  king. 
<*  George  li. 
**  Tire    unwarrantable    proceedings    of  tho 
Frenrh  in  the  Went  Imlies,  and  Nortli  America, 
Niiire  the  ronrlusion  of  the  treaty  ot  Aix  la  Clia- 
pelle,  and  the  uriiirpationH  ami  encro:irhments 
in:ifle  by  them  ii|H»n  oor  territories,  ami  ilie  set* 
llenifuis  ot  our  Kiib)e«*iH  iu  ihose  parts,  |mrlicu- 
larly  in  our  pruviiice  of  Nova  Sciimh,  have  been 
so  notorious,  and  no  lre<pieiit,  that  iliey  cannot 
hut  be  looked  upon  as  a  Kofficieiit  evlilenee  of  ik. 
formiHl  di-Nitjii  HUil  reinluiiun  in  that  comt,    ^^ 
pursue    in%ariiihly  such   nieasur»-s,   as  ^hu^^^^^^ 
luost  cti'eciuall^  \(C0QMAA>NMsa%i0i^sfiWMkV^^!^    * 


1351] 


S8  GEORGE  tL 


«iibject8  of  that  crown.  From  the  time  of  the 
date  of  this  declaratioDy  the  subjects  of  the 
French  kinuf  became  the  enemies  of  our  sove- 
reitf II  lunl  the  king^ ;  and  the  statute  says,  that 

Mrithout  any  regard  to  the  most  solemn  treaties 
and  enf^a^t-ments.  We  have  not  been  wantin^r 
ou  our  |iart  lo  make  from  time  to  time  the 
must  serious  representations  to  the  French 
kinf^  upnii  these  re|)eaied  acts  of  violence,  and 
lo  eiiileavour  to  obtain  redress  and  satisfaction 
for  the  injuries  done  to  our  subjects,  and  to  pre- 
vent the  like  causes  of  complaint  fur  the  future  : 
but  thouuh  frequeni  assurances  have  been 
given,  that  9very  liimi;  Khould  he  settled  a|;free- 
ably  to  the  treaties  suliMNtinK  between  the  two 
rrowns,  and  particularly  that  the  evacuation  of 
the  four  neutral  islands  in  the  West  Indies 
ahould  be  ejected  (which  was  ex|)res8ly  pro- 
mised to  our  ambassador  in  France)  the  execu- 
tion of  these  assurances,  and  of  the  treaties  on 
urbidi  they  were  founded,  has  been  evaded 
under  the  most  frivolous  pretences ;  and  the  un- 
justifiable practices  of  the  French  governors, 
and  of  the  officers  acting  under  their  authoritv, 
were  still  carried  on,  till  at  length,  in  the 
month  of  April,  1754,  they  broke  out  in  open 
acts  of  hostility,  when,  in  time  of  profound 
peace,  without  any  declaration  of  war,  and 
without  any  previous  notice  given,  or  applica- 
tion made,  a  body  of  French  troops  under  the 
command  of  an  officer  bearing  the  French 
kiiig^s  commission,  attacked  in  an  hostile  man- 
ner, and  possessed  themselves  of  the  Engl'isb 
fort  on  the  Ohio  in  North  America. 

^*  But  notwithstanding  this  act  of  hostility, 
which  could  not  but  be  looked  upon  as  a  com- 
mencemeot  of  war,  yet,  from  our  earnest  de- 
sire of  peace,  and  in  hopes  the  court  of  France 
would  disavow  this  violence  and  injustice,  v«e 
contented  ourselvfs  \^itli  semilog  such  a  forcr 
to  America,  as  was  indispensably  necessiiry  for 
the  immediate  defence  and  protection  of  our 
sultjocts  a:>ainst  I'resh  attacks  and  insults. 

**  In  the'mean  time  great  naval  armaments 
were  preparini;  in  the  |>urts  of  France,  and  a 
consideralile  bi>dv  of  French  troops  embarked 
for  North  America  ;  au<l  tlioupfh  the  French 
ambasbador  was  sent  back  to  En;: land  ^'ith 
specious  professions  of  a  desire  to  accommo- 
date iUese  ditferences,  }et  it  appeareil,  that 
their  real  desi^^n  was  only  to  ^ain  time  for  the 
passage  of  tliose  troops  to  America,  which 
they  hoped  would  secure  the  superiority  of  the 
French  forces  in  those  parts,  and  enable  tliem 
to  carry  their  auil>ilious  and  oppressive  pro- 
jects into  execution. 

**  In  iliese  circumstances  we  could  not  but 
think  it  incumbent  upon  us,  to  endeavour  to 
prevent  the  success  of  so  dan<;erous  a  design, 
anti  t(»  oppose  the  landing  of  tiie  French  troops 
in  America  ;  and  in  consequence  of  the  ju>t 
and  nec»s*iary  measures  we  had  taken  for  that 
purpose,  the  French  ambassador  was  imme- 
diately recalled  from  our  court ;  the  fortifica- 
tions at  Dunkirk,  which  had  been  repairing  for 
J9f^  |iine»  wajre  cularged ;   ft^X  bodies  of 


Trial  nfDr.  Hetuey,  [1358 

from  and  afVer  the  time  oT  tnch  dedaratioi 
being  made  against  the  king  and  auljects  «f 
any  foreigrn  imtentate  or  natioD,  and  at  aoj 
time  during  nostilities  between  the  enemies  tf 


troops  marched  down  to  the  coast;  and  oar 
kingiloms  were  threatened  wiib  au  invasioa. 

**  In  order  to  pravent  the  execution  of  these 
designs,  and  to  provide  for  the  security  of  our 
kingdoms,  which  were  thus  tlireatened,  wt 
could  no  longer  forbear  giving  ordf  rs  for  the 
seizing  at  tica  the  slnps  of  the  French  kisf, 
and  his  subjects.  Notwithstanding  which,  as 
we  were  still  unwilling  to  give  up  all  ho|iei 
that  an  accommodaiion  might  be  effected,  at 
have  contented  ourselves  hiiliertu  wiih  detaia» 
iog  the  said  ships,  and  preserving  tbem,  vak 
(as  far  as  was  possible)  their  cargoea  entiic^ 
without  proceding  to  the  coufiscatioo  of  ihcm; 
but  it  l>eing  now  evident,  by  the  hostile  in vasioa 
ac'ually  made  by  the  French  king  of  ear 
island  of  Minorca,  that  it  is  tlie  determioed  re- 
solution of  that  court  to  hearken  to  no  u-vm  cf 
peace,  but  to  carry  on  the  war,  which  has  bfci 
long  begun  on  their  part,  with  the  utmost  vio- 
lence, we  can  no  longer  remain,  consisteodj 
with  what  we  owe  to  our  own  honour,  and  If 
the  welfare  of  our  subjects,  within  IboM 
bounds,  which,  from  a  dcbire  of  peace,  we  ba4 
hitherto  observed. 

**  We  have  therefore  thought  proper  to  de- 
clare war,  and  we  do  heroby  declare  aa* 
against  the  French  king,  who  hath  so  uojumIt 
b^uu  it,  relying  on  the  help  of  Almighty  GoO, 
in  our  just  umlertakiog,  and  being  aasaitd 
of  the  hearty  concurrence  and  assistance  of 
our  subjects,  in  support  of  so  good  a  came; 
hereby  willing  and  requiring  our  captain  ge- 
neral of  our  forces,  our  commissioneri  for 
executing  the  office  of  our  high  admiral  ti 
Great  Britain,  our  lieutenants  of  our  several 
counties,  governors  of  our  forts  and  garrisMiy 
and  all  other  officers  and  soldiers  under  ilie«. 
by  sea  and  land,  to  do  and  execute  all  ads  tf 
hostility,  in  the  prosecution  of  this  waragaioH 
the  French  king,  his  vassals  and  subjects,  sod 
to  oppose  their  atltempts  :  willing  and  n-qoir- 
ing  all  our  subjects  to  take  notice  of  the  same; 
whom  we  henceforth  strictly  forbid  to  hold  aoj 
correspondence  or  communication  with  the 
said  French  king,  or  his  subjects.  And  «e  do 
hereby  command  our  own  subjects,  and  ad- 
vertise all  other  i^ersonsof  what  nation  soeve, 
not  to  transport  or  carry  any  soldiers,  anaii 
powder,  ammunition,  or  other  cootrakaad 
goods,  to  any  of  the  territories,  lands,  plaali* 
tions,  or  countries  of  tlie  said  French  kiof ; 
declaring,  that  whatsoever  ship  or  vessel  shaD 
be  met  withal,  transporting  or  carr\iDg  siy 
soldiers,  arms,  powder,  aminuniiiuu  or  aM 
other  contraband  iroo«ls,  to  any  of  the  te^^ 
tories,  lands,  plantations,  ur  couutrica  of  il 
said  French  king,  the  same  being  taken,  thdl 
be  condemne<l  as  good  and  lawful  prises. 

**  Acd  whereas  there  are  remaining  in  Ml 
kuigdom,  divers  of  the  subjects  of  tha  FktMb 
king ;  We  do  hereby  declare  pur  royai  jiMft 


1353] 


Jbr  High  Tretuon^ 


Ihb  imtion  uml  ttie  sulijecls  tlierc<ir,  if  «Djr  one  | 
4»f  iliR  suhjccts  oC  tliiM  ninoii  shall  keep  «ny 
Cf»rrc3<|iorni*!ncc  with  tlie  eneuiy,  i^ivin^  hiro  or 
thrill  notice  of  any  puMic  or  private  transactions 
thai  *(hiiil  leatl  tn  i^iiethem  any  insij^hl  ioto 
the  nature  ol  our  jitreti^Uu  either  t>y  tea  or 
liuul,  such  person  thall  he  tleemrd  guitty  of 
liti^h'treDKOo.  These  treasonahle  Irunaaciioos 
liavf  h^en  nmie  Ufath  hy  several  aci^<  of  par* 
liftirient ;  anil  ttiii  constitutes  the  nature  nf  the 
ol&aoe  of  the  prtaoner  at  the  har;  for  were 
llirre  no  aiich  laws  there  wotihl  be  ni»  such 
crtiiie;  the  law  wa&  maile  to  prevent  (he  evil 
Icfidenry  of  the  prisoner's  offence,  itlitch  ts  i 
tbal  1  am  come  novv  to  fl]H^ak  to  \  ami  I  am 
vorry  for  the  prisonei's  auke  to  say,  that  bis 
<iffence  is  of  %o  pernicious  a  nature  that  it  tends 
10  deprive  hiH  tuvj^nty  otUincra«*n  and  di^nitv^ 
hy  eriikavoui'inu  tu  shorten  a  rei^o  of  so  glori- 
ous a  ieni^Ui.  and  in  which  there  iias  hitherto 
i>eeu  unfuterruptt*d  peace  and  plenty ;  every 
iitaii  has  alH«i  hitherto  sut  quiedy  under  bis 
own  vine,  drank  thereof,  resiped  the  fr nils  of 
liis  Ishoiir  witliout  oppreasion,  and  in  which 
«very  subjiMTt  may  reall  v  lie  said  to  have  received 
the  fuUiiesfi  o^ joy,  and  JQ  a  («euse  plea^iures  fur 
evertnore  :  hui  uu  liiecunirary  the  unhappy  pri- 
•otier  ai  Uie  bar  hii^i  wii:kF<ily  endeavoured  U> 
tiriof^  on  the  inhsbitauts  of  tltis  island  an  io- 
▼a>ion  from  the  French  kiniif,  aud  a  total  de« 
fltructit>n  4*f  the  lives,  liberties  ami  rehifiou  of 
every  £D^hshffian,  ami  in  its  dreaiiiul  and 
hmnd  coiiaequencea  tnake  ua  a  province  to 
Fra<i£e ;  a  desiip)  our  eueinies  have  lonif  pro- 
jeeted,  acid  a  design  which  the  prisoner  at  the 
oar  haa^  as  far  as  lies  in  his  power,  forwarded, 
^ow  for  your  aatiafaction,  f^eutleineUf  that  the 
unhappy  prisoner  at  the  bar  has  been  i^nitty  of 
the  heitious  and  detestable  crime  of  which  he 
now  fitainh  chari^ed,  we  shall  shew  you,  that 
he  has  wrote  several  letten«  to  the  French  king's 
onl^iecta,  particularly  several  sent  directed 
to  I'artSt  g^ivini;  them  from  time  to  time 
intehi|fi-fice  of  what  passed  relative  to  our  naval 
and  other  prepatsiions  ma^le  m  ^his  kincrdora, 
in  Onler  to  destroy  the  power  of  the  French 
hMlfg  our  inveii-rate  and  naturiil  enemy  ;  an 
ompOiy  who  seeks  to  destroy  our  liberties,  en- 
clave our  persons,  rob  u»»  ot  the  wisest  of  mo» 
iiarcbs,  ruin  the  best  conHtrutetl  nation  upon 
«arth,  and  abolish  the  Protectant  taiib :  by 
sending  the  said  Irttem  he  the  prisoner  has 
done  to  the  utmoni  all  that  lies  in  his  power. 
Indeed,  it  may  be  said,  thst  Jieveral  of  these 
Jrttert  were  intercepted,  and  to  did  not  reach 
tite  (versonitu  whom  they  were  sent,  and  so  no 
cril  conseqiienee  retulted  from  them,  Trom  the 
Wrltintf  of  them,  or  from  l!*e  sendini;^  of  them  ; 
ad4  tharefure  it  may   be  ohjecteit,  that  these 

tinn  to  be,  tbai  all  the  aaid  aybjecla  who  ahall 
^Irmeau  themselves  d ur if uHy  towards  ut«  ahill 
^e  jKiife  in  ihetr  perwinn  siiid  effects, 

*'  Given  al  our  i^ouri  at  Kensinirlon,  the 
97t>i  day  of  May,  1750,  to  the  29th  year  of 
^ur  rvi^. 

«<  God  tavt  th«  Kuia* 


A.  D,  175S.  [1361 

lelterv  are  no  overt* act  of  the  pn^oner  \  bnl 
when  we  on  the  side  of  the  ctowo  ahall  come 
to  read  th«fie  letters,  und«^r  the  favour  of  ih« 
Court,  and  prove  toytiu  that  they  were  sent  by 
the  (trisoner  at  the  bar,  with  an  iiitf^nt,  with  a 
very  plain  intent  to  he  delivered  to  the  eoemiea 
of  our  Hovereif^n  lord  ttie  kn\\i^  thru  you  will 
he  of  opinion  that  the  sending  of  these  letten 
was  an  overt  act  ;  and  that  every  leiier  i^aa  at 
the  time  of  its  beinif  sent  an  absolute  oif>rt* 
act.  It  is  true,  hud  the^e  Inters  remuiiifd  in 
the  hatidsof  thepri<^>oer,  and  b>id  not  been  sent 
by  him,  as  far  sv  lay  lu  his  po^er,  to  the  ene»^ 
niies  of  his  majesty,  then  in  surh  caiie,  itiouji^f 
they  would  have  been  treasonable  papers  ami 
letters,  yet  there  would  have  been  no  overt- act 
an  them,  because  they  were  not  sent,  yet  such 
letters  and  papers  beui|f  f<iuod  tn  the  p^wMfssioa 
of  the  prisoner  would  iiave  sliewo  Ittm  to  be  a 
dnniferous  j>erson.  It  is  much  the  same  as  in 
cat»e  of  ireuMortahle  thoughts,  they  caonot  be* 
come  no  way  nn  overt-act  till  they  are  ullen 
in  the  preaetice  and  hearin^f  of  a  aecond  or  moi 
persons^  and  then  treaaionable  words  become  an 
overt-act,  and  by  the  law  are  Justly  deemed  to 
be  hig-h  treason.  We  shall  prove  to  you  b«i 
undeniable  evidence,  that  many  letlert  of  trea^^ 
aonabte  correspondence  were  lound  in  the  cus- 
tody and  possession  of  the  prisoner  at  the  bar, 
both  sent  by  him  to  the  enemy,  and  received 
from  the  enemy  by  him^  in  aeverwl  of  which 
directed  to  Paris,  he  ^ves  the  French  oorice 
of  several  of  our  armaments,  what  numh»^r  of 
ships  llie  king  our  soverei^irn  was  hliintf  out  to 
ilefend  thiti  nation  and  tu  annoy  the  subjects  of 
the  French  ktn^,  what  number  of  men  and 
guns  they  contained,  and  on  what  servicea 
sent,  and  to  what  places  destined.  By  letteri, 
found  in  hia  pasaetsion,  sent  him,  it  will  ippeari 
that  the  prifioner  at  the  bar  received  on  t\%m 
Bccotint  of  this  treason  Able  conrespohden^ 
alter  the  rate  of  an  hundred  guineas  a-year 
the  enemy  for  carryint^^on  this  ioi<tuitoUb 
respondence.  For  so  trilhnjpT  a  sum  did  he 
troy  his  country  !  But  it  will  likewise  appear* 
that  the  prisoner  Doctor  Florence  II ensey  did 
not  carry  on  this  wicked  correspondence  so 
much  for  ^aiu,  as  through  inclination  and  prio- 
ciidp,  ihooffh  indeed  altera artls  in  a  letter 
which  wss  inlercepled,  directed  to  him,  we 
find  he  had  romptainetl  thai  the  alKivesum  of 
twenty*iive  guineas  a  (quarter,  or  one  hundred 
g^uineas  a-year  was  not  sufHcient,  and  that  he 
hopeil  at>d  t'Xpfcted  it  should  be  doubled  ;  and 
tt>e  same  letter  i^ives  him  hopes,  that  it  would 
be  sm»n.  The  prisoner  gavo  the  French  Iha 
tii'Mt  account  of  admiral  Hoscawen's  sailiu;;  to 
Norih  America,  ami  of  the  taking  of  the  Alcide 
and  Uy  a,  with  every  minute  circumstance  re* 
1alinf(thereto«  It  mieht  in  a  g^reat  tneasurc  ba 
owiuif  to  the  treacherous  and  trea«(omthte  cor« 
respni   "  fihe  prisiuier  at  the  bar,  that  the 

late  V  I  I  ted  affair  of  the  secret  expe<h- 

lion  uii^Lniiitni,  since  we  And,  in  ov\%  ^  >ni». 
lellern,  thouf^h  lie  could  not  know,  l'«>^  ^^^3^*S^ 
certainty,   that    that    fleet   was    •^^**'^'^^.^ 
Bodlclor^^t  baa  u^lwa%:vV^  \v\^  ^^  ^i^^^n.N'*^ 


pear^ 

n  i\m  ^j 

eno^^H 

ebe*'^^^ 


] 


JS55]  32  GEORGE  II. 

^Uce  of  itfl  destination,  in  tliese  very  express 
wonls:  '*  You  may  depend  upon  il  that  the 
En^li^li  <lcet  is  defti^ned  iii^ainst  Uocliefort,  and 
Rocbt'furt  only  :"  and  Uy  iliis  unlucky  conjec- 
ture gave  the  'enemy  timely  notice  to  stand  on 
their  Kuarif,  and  hy  that  means,  as  it  did  tarn 
out.  prevent  the  defiiirns  of  his  maje»ty  in 
cru8htn((the  power  and  iiisulence  of  the  French 
|cini(,  and  his  subjects.  That  the  prisoner  was 
by  inclination  more  than  interest  an  enemy  to 
his  present  majesty,  and  our  happy  constitu- 
tion will  appear  particularly  from  one  letter  we 
thall  produce  to  you,  in  which  ha^says,  he  had 
A  great  reg^ard  for  the  French  nation,  and  that 
he  offered  his  service  not  only  from  interest  but 
inclination  to  4>romote  the  welfare  of  that  coun- 
try. Another  letter  is  written  on  purpose  to  ad- 
vise the  enemy  to  invade  this  island ;  and  by  one 
blow  to  extirpate  the  Biitish  liberty ;  he  tells  his 
0(»rres|M)ndeut,  that  the  English  were  generally 
disftatisHed,  that  their  tinances  were  well-niffli 
exhausted,  thut  the  public  creiiit  was  totally  de- 
stroyed, and  that  therefore  now  was  the  time  to 
give  the  final  blo«v.  To  advise  the  enem^K  at  war 
with  this  kingdom  to  come  and  invade  this  island 
is  hi<*h  treason  ;  it  is  endeavouring  to  dethrone 
his  majesty,  and  it  is  comjiassing  the  life  of  the 
king  ;  and  we  shall Ic^ve  it  w ith  you,  gentlemen, 
to  consider  how  far,  if  his  e%il  advice  had  been 
taken,  and  had  succredcd,  it  mis;  lit  have  affected 
every  individual  sulijcct  of  his  majesty,  their 
lives,  families,  fortunes  and  liberties.  Of  these 
things  you  are  the  proper  judges,  how  far  they 
might  probably  have  reached.  But,  gentle- 
men, notwithstanding  all  that  has  been  said, 
against  the  prisoner  at  the  bar,  there  rests  for 
your  couHideration  one  or  tvvo  things  ;  the  first 
is,  whether  the  prisoner  wrote  these  letters  be- 
fore the  declaration  of  the  war  uufainst  the  French 
king  ;  for  if  he  wrote  them  before  and  sent  them 
before  that  event,  then  tliey  are  not  treasoiidhle, 
because  not  wrote  and  sent  to  the  enemy  in  the 
time  of  open  war  ;  but  if  you  should  find  they 
were  wrote  after  the  ileciaration  of  such  war 
against  the  French  king,  then  they  are  so  many 
separate  acts  of  high  treason.  Again,  though  ^ 
these  letters  papers  and  writings  were  found  in 
the  custody  anti  possession  of  tlie  prisoner  at  the 
bar,  it  does  not  tollow  therefore,  that  they  were 
wrote  hy  him  ;  an<l  therefore  it  will  he  neces- 
sary for  lis,  in  (irder  to  satisfy  you,  that  they 
vere  wrote  hy  him,  to  prove  his  hund-wrilini; 
by  such  persons  who  have  seen  him  write,  and  j 
who  have  U'en  conversiint  with  him  for  many  , 
years,  that  ino^t  of  these  h>tt<T!t,  papers  and  I 
l»riiings  are  sevrmlly  the  IijiimI  writing  of  the  ' 
prisoner  at  tiic  bar.  One  of  thrse  witnesses,  I 
partiro!arly,  has  heen  intimately  acf|uainted  | 
W'ith  tiocior  llensry  for  ten  _\ejirs,  has  si^^-n  ] 
hiui  durinvTthai  time  write  several  letteis  pa- 
pers ami  oiht'i- uriiin^s,  »nd  is  now  possessed 
of  sfveral  letters  s(mu  to  him  hy  tlie  prisoner. 
W  eshiili  tl)Ct«  fori',  in  proilucing  to  \ou  our  eii- 
jdeiice,  ftiKt,  make  it  tipprar,  that  the  letters, 
jMpem  Hiiil  wT.iinuK  now  in  my  hand,  now 
abcMitio  liepn>dMe«-d  to  you  anil  the  Court,  were 
IftkeD  ill  the  Guatudy  aud  possessioii  i>f  the  pri- 


Trial  of  Dr.  Henseyf 


[1356 


soner ;  Secondly,  that  maoy  of  them  are  the 
hand-writing  of  the  prisoner  ;  Thirdly,  that  bt 
the  prisoner  did  send  several  letters  he  wrote  It 
the  enemies  of  his  majesty  and  his  hege  sub- 
jects. As  to  the  subject  of  the  letters  and  pa- 
pers, you  will  not  only  hear  them  read  in  coart, 
1  mean  the  translation  of  tliem  out  of  tiw 
French  into  the  English,  but  both  the  original! 
aud  the  translations  of  these  papera  letters  aad 
writings  will  be  laid  before  you.  When  al 
this  is  done,  yon,  gentlemen,  will  be  proper 
judges  of  their  destructive  tendency  ;  yuu,  is- 
deed,  under  tlie  sufferance  of  the  Court,  are  the 
only  judges  of  this  fact ;  and  1  ilo  not  iloubt,  1 
make  no  doubt,  if  the  general  tentlency  oflbcM 
letters  writings  and  papers  be  found  to  be  d^ 
structivc  of  the  peace  of  the  nation,  therrby 
compassing  the  life  of  his  most  sacred  msjesly, 
our  sovereign  lord  the  king,  anil  tend,  as  I 
think  they  plainly  do,  to  the  subversion  of  cmt 
happy  constitution,  you  will  find  a  verdict  ac- 
cordingly. We  will  now  therefore  proceed  is 
prove  the  first  thing  we  have  undertaken,  vii. 
That  the  papers  and  letters  I  hare  now  in  ny 
hand  were  found  in  and  taken  out  of  the  custody 
of  the  prisoner  at  the  bar.  Call  Nathan  Csr- 
ringten. 

Cierk.  You  shall  true  answer  make  to  sU 
questions  asked  you  in  the  csause  now  depeai- 
iog  in  this  court,  between  our  sovereign  \oti 
the  king  and  the.  prisoner  at  the  bar.  And  the 
evidence  you  shall  give,  shall  be  the  truth,  Ik 
whole  truth,  and  nothing  but  the  truth.  S» 
help  you  God. 

Nathan  Carrington  sworn. 

Counsel/or  the  Crown,  Mr.  Carrington,  idl 
the  Court  and  the  jury  sworn,  what  you  knov 
in  relation  to  any  letters  paperti  and  writiDj(f 
ibiiud  in  the  custody  and  possession  of  tbepn- 
soner  at  the  bar. 

Carriiifiton.  Some  of  the  prisoner's  Irttfff 
being  intercepted  hy  one  belonging  to  the  general 
post-ottiee,  and  a  strong  suspicion  of  a  treasno- 
alde  corrrspomience  appearing  to  be  carrjiu^ 
ton  ;— [Mr.  Canington  speaking  somewliii 
low,  though  very  distinct,  he  was  desired 
to  speak  out,  so  that  all  the  jury  niii:hl 
hear  ;  and  to  that  end,  he  was  also  desired  IP 
look  towards  the  place  in  w  hicli  the  jury  sji.] 

Oil  the  21st  day  of  August  last,  1  went,  bv 
virtue  of  a  warrant  directed  to  me  by  ti)^ 
secretary  of  state,  with  full  |M)wer,  to  opprrbeod 
the  prisoner  at  the  liar,  and  search  las  Imuff 
lod^-ingand  person,  on  suspicion  of  his  carrying 
on  a  treasonable  correspondeni*e  withibe 
French,  for  letters,  papers,  writings,  oi  olbtf 
lliinU7>  relative  to  such  negoriutions,  wbich 
iiiiirht  have  passed,  or  wan  then  trannrtisf 
iietweeii  the  agents  and  subjects  of  the  French 
kinir,  and  doctor  llfUKey,  the  parly  then  fu^ 
pecMed.  AccordinL'ly,  lakint;  with  me  proftf 
ns^isianis,  I  went  early  in  the  iiiornint;  of  ill 
«:ii<l  '1 1st  day  of  August  last  to  doctor  llrnwfll 
loilsintTN  in  Arundel- street  in  the  ^Strand:  di 
fleodiiit;;  my  young  man  to  ask,  whether  iii 
doctor  was  at  buuie,  he  was  told  by  tbciervai^ 


iS57]  Jbr  High  Trww 

mtUl,  that  tbe  doctor  was  not  within,  bat  that  I 
lie  v^'ould  not  be  Ifrng  before  be  came  home, 
ior  that  he  wan  only  gone,  as  be  was  useil  to  do 
•very  morning,  to  prayers  to  the  Catholic 
church  in  8(>l)0-squure ;  and  that  he  always 
camn  directly  home,  aiier  divine  service  was 
ended,  before  he  went  to  visit  his  fMitients,  and 
before  he  went  elsewhere  about  his  other  busi- 
ness. When  1  had  received  this  auswer,  1 
aoon  concluded,  that  as  one  of  my  assistants 
iioew  tbe  doctor  w  ell  by  sig^ht,  we  would  go 
from  tbeiice  immediately  to  tlie  Popish  cha|iel 
ID  8uho-square,  and  see  if  we  could  pick  him 
up.  When  we  were  come  there,  the  mass  in  as 
finisbing,  and  the  people  soon  after  c<imiag 
out,  the  doctor  also  coming  out,  my  assistant 
^  shewed  me  the  prisoner.  On  which  I  ac- 
quainted the  prisoner  with  my  business; 
which  done,  1  rbnducteil  him  to  my  own 
bouse ;  and  then  I  acquainted  the  office  that  I 
had  taikeu  tbe  prisoner  at  the  bar,  aisd  the 
manner  in  w  hicb  it  hap|»cned. 

After  you  had  taken  Mr.  flensejr  as  he 
was  coming  out  of  the  Popish  chapel  m  Soho- 
■quare,  and  conducted  bim  to  your  own  bouse, 
what  kbilowed  ? — I  took  him  into  a  back  room, 
»nd  assisted  by  two  otbers,  or  rather  while  two 
oiher  persons  were  present,  1  searched  all  his 
pockets,  and  tbe  lining  of  his  coat,  waistcoat 
and  breeches;  all  which  I  caused  bim  one 
after  another  to  pull  off:  i  likewise  searched 
his  shoes,  and  the  lining  of  his  hat.  In  this 
search,  I  did  not  find  so  much  as  one  letter, 
note,  psper,  or  viriting  whatever. 
•  .WheD  did  you  make  this  diligent  search 
into  the  pockets  and  clothes  of  the  prisoner  ? 
Was  it  before  you  went  lo  the  office  or  after  ? 
—It  waa  immediately  after  I  had  brought  him 
into  my  own  house.  ]  t  is  customary  to  search 
lirisooers,  especially  such  as  are  suspected  of 
iMving  about  them  letters  and  writings  of  a 
treaaoiiable  nature,  as  soon  as  is  convenient, 
leai  they  should  find  means,  if  they  have  any 
about  them,  either  to  destrov  them,  or  to  con- 
vey them  away.  But  nothing  of  a  treasonable 
nature  was  found  about  the  doctor.  And  the 
search  happened  about  an  hour  before  I  went  to 
Ibe  office. 

.  Take  time:— Well,  and  what  did  you  after 
all  this  ? — 1,  with  my  a«sibtants,  went  in  the 
afternoon  to  tbe  prisoner's  lodiriugs  in  Aruudel- 
«lreet  in  the  Straud.  When  I  came  there,  1 
fbuud  tbe  house  was  not  the  d«>ctor*s,  but  only 
that  he  lodged  there;  that  he  had  a  room  up 
|wo  pair  of  stairs,  which  was  his  bed-chamber, 
imd  a  parlour  in  which  was  a  bureau,  a  glass, 
•ml  several  chairs.  J  asked  tbe  mistress  of  the 
hi^use,  wbo  is  a  widow-wouian,  whetlier  tbe 
IjMlgings  she  had  let  d«»ctur  Uensey  were  ready 
inrnished .'  and,  whether  tlie  bureau  wbich  1 
tbea  saw  in  the  parlour  where  I  was,  was  in  the 
use  and  possession  «>f  the  doctor  P  ^bc  replied, 
nuit  both  the  rooms  she  bad  let  doctor  Hensey 
were  ready  furnished,  and  that  the  doctor  usc<l 
IIm  bureau  for  lo  put  bis  (lapers  in,  and  tbe 
drawers  for  his  linen,  I  anked  for  the  key  of 
llfAhu^tau,  ia  order  to  see  whal  kiod  of  letters 


A.  a  1758. 


[1358 


lu 


they  were  which  belonged  to  the  doctor.  But 
I  u-ua  told,  that  the  doctor  had  the  key,  and 
that  it  was  not  to  be  found.  Whereupon  I  wsM 
thinking  to  send  for  two  chairmen,  and  have  the 
bureau  carried  by  them  to  my  house  on  one  ot' 
their  carriages,  but  recollectinir  that  I  h^l  got 
about  me  my  keys,  I  tried  whether  the  key  irf* 
my  bureau  would  open  the  doctor's  hureau,  and 
upon  trying  it,  it  Ojiened  it ;  and  then  1  t4H>lt 
out  all  the  writings,  letters  and  papers  I  could 
find. 

Then  you  are  sure  you  took  out  all  the  let- 
ters, papers  and  writio^s  then  in  the  prisoner's 
bureau. — On  such  occasions  I  Hueep  nit 
writings,  letters  and  papers  atR'sy  whether  tht^ 
relate  to  tbe  subject  or  not ;  for  at  sue  ii  tiiues 
we  cannot  stand  to  lie  very  exiict ;  :;nd  it  is  far 
better  to  lake  too  much  than  lo  take  too  little  ; 
and  afterwards  what  does  not  relate  to  the  affair 
for  which  the  prisoner  is  charged,  is  carefully 
returntd  him.  This  has  -always  been  tbe  prac- 
tice ever  since  1  have  had  the  honour  to  be  one 
of  his  majesty's  messengers.  As  lor  my  own 
part,  I  always  take  paiticular  notice  of  what 
letters,  writings  and  papers  I  take  in  a  pri» 
soner's  possession,  and  I  mark  them  that  1  may 
know  thom  again. 

If  you  were  to  see  those  letters,  writings  and 
papers  you  took  out  of  i\\»  bureau  then  in  the 
possession  and  use  of  the  prisoner  at  ibe  Irar, 
do  you  think  you  should  know  them  !* — Yes,  I 
should ;  1  am  sure,  that  I  should  knou  them  \ 
they  have  all  got  my  mark  ujK>n  them. 

Look  on  these  letters  and  iiapers,  and  let 
the  Court  and  Jurv  know,  whether  these  are 
the  very  letters  and  papers  you  took  out  of  the 
prisoner's  bureau. 

Carrington  takes  the  letters  and  papers 
into  his  hand,  and  examines  them,  anil  then 
says,  They  have  been  numbered  since  they 
were  in  my  hands  ;  but  here  is  my  mark  on 
every  one  of  them  ;  and  these  are  the  very 
letters,  papers  and  writings,  1  took  out  of  doctor 
Llensey's  bureau. 

l>id  any  Imdy  see  you  take  them  out  of  the 
bureau ?-^Ves,  several;  there  were  present, 
besides  Mr.  Turner,  the  constable,  my  assistnnt, 
the  woman  of  the  house,  who  is  a  widow,  and 
her  maid. 

Mr.  Turners VI orn. 

Q.  Were  you  with  IVIr.  ('arrington  on  the 
21st  day  of  Auu^ust  laM,  when  In;  Kcarriied  the 
prisoner's  lodginirs  1'  What  passi-d  at  that 
time  ? — Ti/rmr.  I  went  with  him  to  assist 
him,  and  1  saw  him  take  these  \ery  letters, 
papers  atnl  writin«^  (looking  on  tluiii)  «Mit  of 
the  dor  tor's  bureau  ;  i  kootv  tliein  to  be  the 
same,  I  lookeil  particiilaily  on  them,  and  after- 
wards  1  read  one  or  two  of  them. 

Do  you  understand  French  i* — Yes. 

The  Comtabk  sworn.  ^ 

Conn,  for  Crown,    Were  you  witK  ^\t ,  C^^*' 
riogton  on  the  21  at  day  ui  Allv^>v^^^  '*>»!WiV'^ 
went  to  search  the  prisoner's  lotN^N^'a^^  ^'^.^™. 
del-Street?  TeU  whti^Q^kwsv.  -^V\>^»^»*»«*- 


1359]  82  GEORGE  II. 

-^ComtahU,  I  see  Mr.  Garrington  take  several 
KvritiDKs,  aixi  letters  out  of  ^.  bureau  at  that 
time,  but  as  to  whether  these  are  them,  1  can- 
not say,  because  1  did  not  take  any  particular 
Botice  of  them  ;  but  this  I  know,  1  carried  home 
the  bat(  in  which  I  believe,  nay  1  then  knew, 
tbev  were  contained. 

Where  did  you  carry  them  to  ? — ^To  Mr. 
Carrintpton's  house  in  Jermyn-street,  in  the 
company  of  Mr.  Carringion. 

[Cross-examined.] 

Caun.for  Pritoner.  How  d(»  you  know  that 
the  pa|ier»  and  letters  now  in  court  are  those 
Mr.  Carriniirt<*u  took  out  of  the  prisoner's  lodg- 
ings in  a  bureau  in  the  parlour.' — Constalde.  I 
no  other  ways  know  than  that  they  look  like  to 
those  1  put  into  the  bag,  when  I  carried  them 
to  Mr.  Carriiigton's  house. 

Mind  what  you  say.  Sir,  you  are  upon  yonr 
oath,  and  can  you  say  upon  that  oath  you  have 
taken,  that  the  papers  and  letters  you  now  look 
on,  are  those  very  identical  papers  and  letters 
the  king's  messenger  took  out  of  the  bureau, 
on  the  21st day  of  August  last?— I  take  them 
to  be  the  very  same  papers  and  letters,  which 
were  then  taken  out  of  the  prisoner's  bureau ; 
I  believe  them  to  be  the  very  same ;  and  to  the 
best  of  my  knowledge,  I  am  sure  they  are  the 
very  same,  which  1  carried  from  the  prisoner's 
lod«(ing^  in  Arundel-street  in  the  Strand,  to  the 
house  of  the  king's  messenger  in  Jermyn- 
street 

Do  yon  on  these  occasions  always  carry  the 
bag,  thai  you  are  so  very  particular  f— For 
many  years  past,  I  have  gone  with  Mr.  Car- 
rington  to  make  these  searches  and  seizures, 
and  ever  since  1  have  been  so  employed,  I  have 
brought  all  the  tilings  seized  and  taken  away, 
unless  the  bulk  and  number  of  them  required 
other  assistance. 

To  the  Constable.     Stand  by. 

Thomas  Clark  sworn. 

Coun.Jbr  Crown,  I  think  you  werewith  Mr. 
Carriiigton,  in  order  to  assist  him,  when  he 
went  to  search  llie  prisoner's  lodirings.  Give 
an  uccuunt  of  what  you  then  saw  and  heard. — 
Clark.  Tlioii{rh  we  hail  got  the  prisoner,  I 
went  and  asked  for  him  that  aAerHoon  as  though 
I  knew  no  accident  had  befel  him,  but  the  maid 
knew  me  again,  and  said,  she  had  not  seen  the 
doctor  since  I  was  there  in  the  morning.  1 
told  her,  I  wanted  the  doctor  ranch,  that 
my  mistress  was  taken  very  ill,  that  my 
master  was  afraid  she  would  die,  and  the  like ; 
and  i  seemed  very  urgent  to  see  him,  and  pre- 
tended great  uneasiness  and  concern  for  his  ab- 
sence. But  the  maid  said,  She  could  not  tell 
where  he  was,  that  she  had  long  expected  him, 
wondered  he  staid,  never  did  so  before,  ^c.  but 
Mr.  Carrington  coming  up  to  the  door,  where 
I  was  talking  to  the  maid,  asked  her,  whether 
that  was  Mrs.  Blount's,  and  whether  Dr.  Hen- 
•ey  lodged  there?  The  girl  answered.  That 
her  mistress's  name  was  Blount,  and  that  Dr. 
9«Mcy  lodged  there.    He  dcaired  her  to  ibew 


[1360 


Trud  of  Dr.  Hetuey^ 

him  the  doctor^s  apartments^  which  she  i 
what  unwillingly  did,  but  not  before  her  nui- 
tress  came ;  wheo  he  proceeded  as  Mr.  Car- 
rington has  already  related ;  and  I  saw  bin 
take  many  papers,  writings,  and  letters  onlsf 
the  doctor's  bureau,  b}  the  help  of  his  own  key. 
Which  if  he  bad  not  done,  1  had  proposed  ts 
him  the  breaking  of  it  open,  which  I  could 
easily  have  done. 

Do  you  believe  these  to  be  the  papers,  writ- 
ings and  letters  Mr.  Carrington  look  ool  of  the 
prisoner's  bureau  on  the  91st  day  of  Aogut 
last  ? — I  think  them  to  be  the  same,  they  Issk 
to  me  to  be  the  same ;  and  1  have  seen  thai 
two  or  three  times  since. 

[Cros8-examined.3 

Court. for  Prisoner,  Pray,  how  and  wkca 
did  you  see  these  papers,  letters,  and  writiDgia 
second  or  third  time? — dark.  The  next  diy 
aAer  Uie  papers  and  writings  were  brsofkt 
home,  my  master  and  another  gvntlemaa  Mh 
ed  over  them,  sorted  them,  marked  them,  9ai 
read  them,  in  the  dining-room,  and  1  atienM 
to  and  fro  most  of  the  time. 

What  then  yon  are  Mr.  Carrini^oD'a  fso^ 
man  P — Rather  his  sfTvant,  or  assisunt ;  1  an 
not  a  hired  servant,  but  come  and  wail  occa- 
sionally, when  I  am  wanted. 

Officer.    Stand  by. 

Sarah  Wilson  sworn. 

Co.fotr  Cromn.    What  is  your  name  ? 

Wilson,    Sarah  Wilson,  Sir. 

Do  you  know  the  prisoner  Dr,  Hensey  wbfi 
you  see  hiui  ? — Yes.  (Speaking  very  low  ni 
faintly.) 

Counsel,  S|>eak  out,  child ;  do  not  be  afraid: 
raise  yonr  voice,  that  my  lords  and  the  geode* 
men  of  the  jury  may  hear  you  ;  there  is  no 
body  here  will  hurt  you :  look  towards  mt, 
speak  out,  and  do  not  be  bashful.  I>«i  you  see 
the  prisoner,  Mr.  Hensey,  now  in  the  oooft? 
—  Wilson.  Yes,  Sir ;  he  is  there  (|>ointing  to  tbe 
prisoner  with  her  hand),  thnt  is  Dr.  Heosey, 
and  he  is  now  in  the  same  coloured  clothes  be 
usually  was  dressed  in. 

I  find  you  were  a  servant-maid  in  the  bowB 
where  the  prisoner  lodged  ;  huw  long  had  )o« 
lived  there? — Nigh  six  years. 

How  long  is  it  since  Dr.  Hensey  first  casie 
to  live  in  your  mistress's  house  ? — Not  quite 
two  years ;  1  think  it  was  towards  the  end  sf 
last  summer  was  twelve-month. 

Does  your  mistress  keep  a  house,  and  letost 
lodgings? — My  mistress  keeps  a  house,  aid 
lets  out  rooms  and  lodgings  to  flr^ntlelblks. 

Are  these  rooms  and  lodgings  let  readv-fo^ 
nished  or  unfurnished  ? — My  mistress  aioajf 
lets  her  rooms  and  lodgings  furntshed,  aevtf 
unfurnished. 

Then  the  loilgings  yonr  mistress  let  ts  ill 
prisoner.  Dr.  Hensey,  were  what  are  eeneraltf 
termed,  ready  furnished  lodgings? — Ye*;  ay 
mistress  never  let  her  rooms  otherwise  tka 
furnished,  while  i  was  with  her. 

You  say^  while  you  wsre  with  her;  wh|b 


1361] 


Ji}r  High  Treastm. 


A.  D.  175a. 


[1362 


^here  are  yoa  now  P— Abont  three  mootbt 
ago,  I  was  iakeD  into  custody,  where  1  have 
idDaioed  e?  er  since. 

What  were  the  lodgiDgfs  your  mistress  let 
to  the  prisouer  at  the  bar  P— A  room  up  two 
pair  of  slairs,  and  a  parlour,  even  with  the 
street,  both  of  them  ready  furuished. 

Was  there  a  bureau  among  the  furniture  in 
the  parlour? — There  was  then  a  handsome 
Ibureau  in  the  parlour  standing  under  the  glass. 

Was  that  bureau  in  the  use  and  possession 
cT  Dr.  Uensey  ?  Had  he  the  key  of  itp— It 
vaa  generally  in  his  use,  and  lie  used  to  put 
b'ls  papers  and  linen  in  it,  and  he  always  had 
the  key  of  it,  or  mostly  he  had  the  key  of  it. 

Did  your  mistress  let  these  rooms  to  Dr. 
Hensey,  by  the  week,  month,  quarter,  or  by 
the  year?— I  cannot  tell  which;  but  ready- 
fiimtsbed  rooms  are  generally  let  by  the  month, 
or  the  week ;  for  while  1  have  beeu  at  Mrs. 
BkMmt^s,  gentlemen  have  frequently  lodged 
there  one  week,  and  sometimes  a  fortnight, 
oome  to  town^do  their  buiiness,  pay  my  mis 
tms,  and  then  go  down  into  the  country  again ; 
lamilies  frequently  come  to  London,  to  see  tlie 
town,  visit  their  friends  and  acquaintance,  and 
jdispatch  their  several  little  busineMses,  stay  two, 
three  weeks,  a  month,  and  S4»metime8  more, 
and  go  away  again.  This  has  oflU>n  happened 
whilst  I  lived  tkere ;  but  whether  Dr.  Hensey 
rented  his  rooms  by  the  week,  month,  quarter, 
or  by  the  year,  I  never  heard. 

Did  you  see  Mr.  ^ 
letters  and  writings 

on  the  «lst  day  of  August  Jast?—1  did  see  him 
lake  a  great  many  papers,  letters,  and  writings 
out  of  the  prisoner's  bureau,  and  I  wondered 
why  he  did  so;  but  he  said,  he  had  power  to 
.do  so ;  he  hsd  the  king's  warrant  for  what  he 
did ;  and  the  constable  was  there  to  keep  the 
^eace  with  his  little  staff;  and  my  mistress 
oeemed  to  be  afraid  of  him ;  and  then  under- 
Otanding  him  to  be  tlie  king's  messenger,  she 
first  imagined,  that  he  had  talcen  up  tlie  doctor, 
and  SO  it  turned  out. 

•  Did  your  mistress  let  the  prisoner  at  the  bar 
the  use  of  the  bureau,  at  the  same  time  she  let 
him  the  parlour? — Yes;  and  he  always  made 
uae  of  it,  and  he  kept  the  key  of  it  in  his  pocket ; 
and  I  have  often  seen  him  sit  at  the  bureau, 
and  write  many  times. 

[Cross  ezamineil.] 

Comi.^  Prit.  According  to  my  instructions, 
which  1  dare  say  are  right,  this  bureau  wss  not 
the  doctor's,  but  your  mistress's. — WiUon.  Yes, 
8ir,  the  bureau  was  my  mistress's,  but  then  the 
doctor  was  by  agreement  to  have  the  use  of  it, 
ao  kmg  as  he  k>dged  in  the  house,  and  had  the 
.parlour. 

Did  not  your  mistress  pnt  her  things,  linen, 
&c.  into  the  bureau  ? — No ;  my  mistrew  had 
nothing  in  the  bureau;  she  never  kept  any 
thing  bHnoging  to  her  in  the  bnreay,  I  sra 
•are,  since  the  doctor  came  to  the  house ;  he 
4lfled  the  upper  part  for  his  pspera,  writings, 
and  letters,  and  in  the  drawers  underneath  be 
Mt  hia  Unco  and  other  apparel. 

YOL.XIX. 


( Mr.  Carringion  take  any  papers, 
tings  out  of  Dr.  Hense> 's  bureau 


But  did  not  your  mistress  go  and  open  tho 
bureau  and  the  drawers  at  any  time? — Tho 
doctor  would  oflen  leave  the  key  with  my  mis- 
tress, and  she  would  go  to  the  drawers,  ooen 
them,  end  take  out  any  thing  she  wanteo  of 
the  doctor's,  either  to  mend  or  make. 

fiut  did  not  your  mistress  also  frequently 
open  the  upper  part  of  the  bureau  ?-— I  never 
did  see  her  0|>en  the  up^ier  part  of  the  bureau* 
nor  had  she  any  occasion,  for  the  doctor's  linen 
and  other  wearing  apparel  were  in  the  drawers 
underneath. 

Officer.    Stand  by. 

.Counul  ftfr  Crown,  Mr.  Carrington,  when 
you  had  got  these  letters,  papers  and  writings, 
and  had  numbered  them  as  you  say,  what  did 
you  do  with  them? — Carringion.  When  I 
bad  sorted  them,  and  put  them  into  order,  ao« 
cording  to  my  usual  method,  I  carrieil  and  de- 
livered them  to  the  honourable  Mr.  ISianhope. 
Are  these  tlie  letters  and  papers  you  deliver- 
ed him  ? — Yes,  they  are  the  very  letters  and 
Eapers  1  delivered  to  him  at  his  office  in  White* 
ail. 

[Cross-examined.  ] 

Counul  far  Priwner,  With  humble  sub- 
mission to  the  Court,  1  would  ask  the  measen* 
ger  two  or  three  questions  ? 

Court,  Ah  many  as  you  please. 

Q.  Mr.  Csrriugton,  now  did  yon  know,  that 
the  buresu  out  of  which  you  took  the  letters, 
papers  and  writings  now  in  court  was  the  pro- 
perty of  the  prisoner  at  the  bar  f-^arriagion. 
The  landlady  of  the  house  told  me.  that  she  had 
let  that  room  ready  furnished  to  Dr.  Hensey, 
and  when  I  asked  her  for  tiie  key  of  the  bureau, 
she  toM  me  the  doctor  had  it,  for  that  ahe  had 
let  him  the  use  of  the  bureau  together  witli 
the  psrlour.  1  was  going  one  while  to  send 
to  the  doctor  for  the  key,  but  it  being  so  far,  I 
laid  that  thought  aside  ;^1  was  going  to  forco 
the  lock,  and  break  it  open,  but  at  length  think- 
ing of  my  own  key,  all  purposes  were  imme* 
diately  answered. 

Did  you  find  any  of  these  papers,  letters  or 
writings  you  call  treasonable  about  the  person 
of  the  prisoner  ? — After  1  had  taken  the  pri- 
soner as  he  came  out  of  the  Popish  chapel  in 
Suho  square,  1  put  him  into  a  coach,  and  car* 
ried  him  directly  to  my  house  where  1  search- 
ed him,  but  found  on  him  no  letter,  or  other 
writing,  except  bis  pocket-liouk,  containing 
divers  memorandums  and  reci|)es  wrote  in 
Liitin,  and  which  book  1  shewed  to  the  hou. 
Mr.  Htanhope,  and  returned  it  the  prisonei 
the  next  day. 

Tbe  Hon.  Mr.  Stafihopetwton. 

Conn,  for  Cr,  Pray,  8ir,  let  the  Court  and 
jury  know,  whether  these  are  the  very  letters 
and  papers  you  received  from  Mr.  Carrington  ; 
and  when  yuu  had  done  with  them  to  whom 
you  delivered  ihrm  T^Siankope.  These  lot« 
ters  and  fiapcrs  I  receiveil  irum  Mr.  Csrring- 
too  soon  after  the  aopreliension  of  doctor  Hen- 
sey, and  whea  I  liad  finished  hia 

4M 


15AJ]  «  GEOROE  IL 

IMM4,  f  »rrM«l  them  to  tbe  loSkitAC  of  Ike  | 
treasKir^,  Mr,  Frautci^. 

Mr.  Fr4»;Mff«orD. 

Ofun.ffjfr  Cr.  Pnj,  mfomi  tbe  C^wirt  m4 
flMr  ((«Yjt&rf.^n  r/f  the  jury,  vheiber  tb^se  are 
tb«r  «frr  U-ii^in  ami  Y^\tt^t%  yon  rtc^Utd  frou 
tiM  h^i^Mir4M«  Mr  hfanbope? — Fratuu,  I 
ref#i«Mf  ili#'^  r#Ty  UitU^^tnd  pap»fs  frmi  the 
lion.  Mr*  Muohope  with  my  own  bami«,  with 
6tTf!fA¥in%  to  pr#i«ee4  ait^m^t  tbe  priMoer  at 
tK«r  fr^r,  Ifereiip^^n  f  «ln|p»t#4  tbeiu  ioco  tbe 
pTMeiit  oriler  in  vrbicb  ibey  are,  ami  procured 
ibem  to  be  tran«lateil  not  of  tbe  Freneb,  in 
i»hlrb  lan((iia^e  they  irere  wrote,  into  En;fli%h ; 
and  ftrew  np  my  pr'fOr^intpa  therefrom ;  and 
Ibfy  remained  in  w%  crjttody,  till  f  deiirered 
Ibt-m  lately  into  tbe  bandf  of  3Ir.  Webb. 

Phifip  Carteret  W^hh,  eaq-  ivom. 

WM,  f  receired  all  tbeae  Ictteni,  popera 
anil  writiri^*^  relatite  to  Dr.  Ileosfy,  from  Mr. 
Francis  and  I  bate  bron((bt  th«m  here,  in 
cane  tbe  Conrt  nl^onld  tbiok  proper  to  hare 
tbcm  read  in  tbb  ctnte. 


Trid  ^Dr.  Hrmey^ 


[1361 


[Then  tbo  Coonael  for  tbe  Crown,  to  cor- 
rolK>rate  the  eiidencu  already  i^ren,  called 
tito  other  peraona  aa  witneaaea  U3  prove  that 
the  lettera,  pa|ier«  and  writinga  then  id  court 
wrre  in  tbe  poaaeaaion  of  tbe  priaoner  at  tbe 
bar] 

Elizabeth  Blount  iwom. 

Coun.fnr  Cr,  Where  do  yon  lire  ? — Blount, 
In  Arumlel-atreet  in  the  Strand;  I  keep  a 
bonae  in  tbtt  atreet,  and  hare  done  ao  for  aome 
year*  pa»t. 

What  are  you? — \  widow;  rny  husband 
ban  ht^'n  dead  about  ei((1it  or  ten  y^ars. 

l>o  you  know  the  prisoner  at  the  bar,  Dr. 
IlenM?y? — \tin  ;  I  <loknow  him  vfry  well. 

How  loni;  have  you  known  him  ?— -Upwards 
of  a  yfar  and  a  half;    u\\r\\  two  years. 

Did  yon  let  him  any  rminm  to  lodcrn  in,  and 
fvhat  wiTf  thojw*  roomsi* — He  came  about  two 
yfars  ninre  to  my  hou^ieto  take  some  lod^rin^s, 
and  I  Ih  him  a  room  up  two  pair  of  stairs,  aud 
a  parlour  even  with  the  street. 

Did  you  let  them  to  him  furnifthed  or  un  • 
furnished? — He  wanted  ready  lurninhed  lod|yr-. 
inifti,  and  therefore  1  let  them  to  him  ready 
furniNlied. 

Whut  furniture  was  in  the  parlour  when  you 
Jet  ii  him  ?— A  bureau,  a  glass, chairs,  and  some 
other  tiling*. 

So  Ww  prisoner  at  the  bar  had  the  use  of 
th('N<;  tliip^-M  by  a(fr(*emeut ;  he  paid,  I  sup- 
]M»h(*,  n  ri'iit  arrordini^ly.  Did  he  keep  any 
thiii),^  in  tlitf  bureau? — Yes;  in  the  upper 
piirlid'  the  bureau,  he  used  to  put  his  letters 
and  other  p.i|M!ni,  and  in  the  drawers  his  linen 
and  other  apparel. 

Do  you  rememlior  Mr.  Carrington's  com- 
inir  to  vour  houae,  and  the  search  he  made  for 
Mr.  ileii8ey*apap«n?-i^Yes,  fcJir;  I  remem- 


ber it  ao  wef  I  aa  if  a  bmi  hayyaaa^  h«i  t^s 
eaorur.^ ;  ttr  I  never  an«  aacfe  a.  ifeiac  teive 
in  my  bfe  ;  I  tbno^^bt  Ws  a  very  n»t«  aMO. 
be  voobl  |rx#k  aWMt  aad  aearck,  im4  do  as  be 
pleased,  ail  1  cavid  say  in  bi«i.  B«st  vkca  be 
laid  nae,  be  was  tbe  kiar  •  itiuaaitgi.  aad 
ibat  be  was  seat,  I  tkiak  be  said  by  tkie  cari  si 
HoUeraesn.  ooe  of  tbe  kai^s  priiicipai  scoc- 
taries  of  sute,  and  aM  tbose  «itb  bin  said  tbe 
flame  tbin^,  I  was  sa  airaid  ibat  1  ef  en  let  aim  ds 
wbai  be  woold,  tbo«eb  it  vas  in  my  o«a  boaK. 
I  saw  bim  open  tbe  barcaa  viib  a'  key  be  bsd 
in  bis  pocket,  and  be  took  many  papers  and 
letters,  put  tbem  into  a  bae,  tied  up  ibe  mMak 
of  tbe  half:  very  tight,  and  be  and  bis  as<wtaBK 
took  tbem  away  ;  and  indeed,  and  ia  traib  i 
was  very  %\»A  tbey  were  ^oe. 

Look  on  these  letters  ainl  papers,  and  tell  m 
vbetber  TOfi  beliere  these  are  tbe  Icttets  uA 
papers  Mr.  Carrin^ton  took  not  of  the  boreia 
at  that  time  ? — Bioo  nt.  (tMkm^  attentively  on 
tbe  letters.)  I  beliere  tbey  are&  rery  same; 
tbey  look  like  them  ;  they  appear  to  lae  ta  be 
tbe  very  ssbm,  accordin^^  to  the  best  of  ssy 
knowledge  and  remembrance ;  but  as  to  tbst 
I  cannot  be  very  positive,  ftir  I  did  net  ibea 
look  so  particniarfy  at  these  papers  as  I  do  now. 

CounuL  Well^  we  have  enoogh  of  it. 

[Cross-examined.] 

Coun.for  Prit,  Did  not  yon.  Madam,  fn- 
qaently  keep  the  key  of  the  bureau  in  the  par^ 
lour  ?  It  waa,  if  my  instructions  be  ripht,  your 
bareau,  and  in  yonr  use,  and  you  kept  the  key  ? 
— B/onnt.  The  doctor  would  frequently  leave 
his  key  of  the  bureau  with  me,  that  1  mi; bt 
give  out  hi<<  linen  to  his  washer-woman. 

Omn.  Here  they  endeavour  to  prove,  tbst 
the  bareau  in  ilispute  was  the  prisoner's. — Wis 
it  his,  or  your*8? 

Atlorneif  General,  (interrnptjnjr)  No,  bro- 
ther, we  do  not  say,  tlie  bureau  was  the  pri- 
soner's, wc  say,  and  so  it  turns  out,  that  tbe 
bureau  is  this  honest  woman^s  ;  but  that  she 
let  him  the  use  of  it,  during  the  time  he  was 
her  lodi^er ;  a  landlady  may  let  a  person  tbe 
use  of  a  bureau,  a  chest  of  drawers,  or  aa 
escrutore,  for  a  time  certain,  as  well  as  let  part 
of  her  house  for  a  time  certain ;  and  during' 
such  airreemeni  and  cnnditiona  the  lodger  tt 
absolutely  entitled  to  the  |>ossession  as  muck 
as  if  it  was  his  own  pro|>erty,  and  he  had  been 
the  ori)(inal  purchaser. 

Blount.  The  bureau  was  mine ;  I  boiiiiflit 
it,  and  had  it  before  I  knew  Dr.  Uensey  (bur 
or  five  years ;  but  while  he  was  my  lud:^, 
I  let  him  the  use  of  it ;  and  he  was  to  have 
the  use  of  it  so  lonfjf  os  he  lodged  in  my  liouse, 
and  paid  me  hii  rent ;  that  was  the  agreemeot 
between  Dr.  llensey  and  me. 

Officer,  Stand  by. 

Elizabeth  Smith  sworn. 

Co,  for  Crown.  Pray,  mistress,  what  Ml 
you ?-^Smith.  Sir,  I  am  a  washer- woman;— 
I  washed  the  doctor's  linen. 

Did  there  ever  happen  a  dispute  bctwcco  Jtt 


!3fi5] 


Jor  High  Trenxon. 


} 


I 

[ 

I 


and  ihf  doclAr  aboul  tome  of  his  linen  thai 
w«ji  missiinf  ?^ — Y*s»  Sir,  he  snici,  thr«»ii'*h  a 
mistake,  that  I  had  not  bmughi  home  one  of 
hxn  KhirtK,  when  I  had  ;  and  one  day  I  came  to 
the  dor  tor  hIkjiU  it^  aud  1  desired  ilie  doctor  to 
look  iu  his  draiverj^i  1  »fi|i(j08inft  he  rui^^ht 
Bome  how  have  overlooked  tt :  on  this  orcaaion 
he  tf>ok  hiv  key  out  of  his  pocket,  and  he 
opened  the  louesl  drawer  but  one,  and  there  he 
found  the  shirt  thai  vraa  Yni^sinij'. 

Mind  ;  he  took  a  key  out  of  Tiisovkn  pocket; 
he  did  not  aik  Airs.  11  hunt  for  the  key^ 
did  he  r — There  w  ere  at  this  lime  nobody 
|>re«ent  hut  the  doctor  and  utyself;  and  he 
uut  hi«  right  hand  iutu  his  pocl(et,  drew  oota 
Key,  Jind  opened  the  drawer  with  it. 

Officer.  Stand  by. 

Co.  for  Crown.  Thus,  (gentlemen,  we  have 
madeap|>ear,  and  I  hope  fully  to  your  satisfac- 
tion»  that  the  letteri,  papers  and  writinj^  to  be 
produceil  to  the  (Jourl  and  to  yon  were  taken 
in  the  possesiKinn  of  the  priitoner  at  the  bar. 
But,  gentlemen^  their  beinj;  found  io  the  pos- 
aeatiion  of  the  prisoner  at  the  bar,  would  avail 
Mothui}^  nor  be  of  uny  siijfuitjcation.  iu  regard 
to  the  heavy  chary:e  hrou^'ht  iig-ainsl  Jiiin,  un- 
If  81*  it  can  be  proved,  that  the  prisoner  at  the 
bar  did  Mrrile  all  or  any  of  the  writings,  papers 
and  letters  now  produceil  in  court.  VVliere* 
fore,  gentlemen,  wt  shall  now  proceed,  iu  the 
•econd  place,  to  produce  you  »i*vcral  wilnessei 
lo  prove,  that  these  h'»ters  iind  paper*  are  many 
nf  them  the  hand-writing  of  the  prisoner  at  ihV 

Mcndis  du  Cotta  sworn. 

Co.  for  Craitn,  iJo  you  know  the  prisoner  at 
the  bar,  KJorence  Hen«ey,  doctor  of  physic  ?*^ 
Da  Coiila.  Yes,  I  have  known  the  doctor  now 
about  tcu  yvars,  and  have  been  conversant  with 
liim  dunug'  that  lime. 

Have  you  eter  weeu  Dr  Hensey  write? — 
Many  times  ;  and  I  have  now  iu  my  posseashin 
aeverol  letters  ot  his  own  hand-writing,  which 
iroai  time  to  time,  during  our  acquaiataoGe  he 
has  ten  I  to  me. 

Pray,  h»ok  on  these  papers,  writings  and 
leiterv,  and  tell  the  Court  and  gentlemen  of  the 
jury,  whether  you  believe  they  ore  the  hand- 
writing of  the  prisoner  at  the  liur  ? — Da  Cosla. 
(Looking  over  them  attentively)  I  know  the  pii- 
soner'fi  hand>wiititig  very  whI  ;  and  1  am  sure 
iliese  are  his  harui^wiiiiiig  ;  and  lliey  arc  like 
the  hand-wrdmg  of  thofie  letters  which  he  sent 
ifie;  they  are  wrote  in  the  same  lorrn  and 
manner ;  and  likewise  they  are  folded  up  in 
the  same  way,  and  the  inscriptions  are  wrote 
Ijkewite  in  the  ttaroe  form  and  moiU*  mine  are; 
--'I  should  know  his  lett<-nt  and  writings  from 
all  others  ;  for  I  have  been  well  ucipiaiuted 
Willi  his  hand- writing  for  ten  yeam  poat  \  and 
Uave  olien  seen  him  write. 

Have  you»  Sir,  about  you  any  one  of  those 
Utters  the*  prisoner  sent  voui*    If  you  have, 

?'on  nught  compare  it  with  these. — *Da  C^iM. 
PntU  out  of  hiv  pocket  one  of  his  own  letters, 
wlikb  the  ^riioaer  had  leDt  btm,  and  comparea 


A.  D-  1758.  [1366 

,  tlieiD  together)  They  are  exactly  alike ;  lh« 
likeness  ts  so  great,  that  I  can  Lake  upou  uie  la 
'  say,  that  they  were  both  wrote  Itv  one  8nd  the 
1  same  person.  I  know  doctor  Hensey  V  hamU 
[  writing  so  well  that  I  can  no  way  he  deceived  ; 
j  all  these  letters  I  now  took  on,  and  which  I  holti 
in  my  hands,  are  his  hand^wriling. 

[Cross- examiofd.] 

Co.  for  Prk,  Sir,  you  seem  to  be  very  | 
live;— do  you  consider,  that  you  ought  to  ba 
Tery  careful  what  you  swear;  for  the  lifeof^ 
the  prisoner  U  at  slake  ;  1  should  think  it  verjftj 
hard  to  swear  to  a  man's  hand-wiitiiig  ;— it  ist| 
a  diliiculi  thing,  make  the  bust  of  it. — X)a.< 
Coiiu.  \  am  MO  well  ac4|uainied  with  the  doc* 
tor's  hand-writing  that  1  can  make  no  misitake  ;^ 
— I  would  not  say,  that  these  papers  and  writ-r^. 
irigs  were  doctor  Hensey^s  baud- writing,  iirj 
they  were  not.  1  have  a  great  regard  to  whati, 
1  f.ay  ;  ucid  I  would  not  utter  a  falnily  upofttl 
this  occasion  upun  any  consideration  whatever. 

Thmnm  Brown  sworn. 

Co.  for  Crottn.  Vi^y,  8ir,  what  may  your  I 
protVsWon  be? — Brown,  1  am,  Sir,  an  apo*  f 
iheeary. 

Do  yon  know  Dr.  Henaey  the  prisoner  tij 
the  bur  ? — Yes,  !!>ir. 

How    long  may  you  have  known  htm?- 
Abfiut  five  years, 

Huw  came  you  ac«]tiainted  with  him  ? — I 
have  atteiiiled  sevcTal  of  his  patients  as  thetf^ 
apothecary .  [ 

Dill  you  ever  sec  him  write? — ^1  cannot  say, 
that  I  have  »een  htm  write  but  oiice,  uud  that  J 
was  one  t??cning  a  prescription  for  a  lady  whd 
wa^   til  ken   suddenly  ill ;    hut  1  am   well  ac-^ 
i|uaiuleil  with  his  hand-writing,  and  have  re<j 
ceiveil   several  of  his  prescfipiiotis,  and  hart 
many  of  them  now  hy  me. 

Lrtjok  on  these  teiters,  papers  and  wriiingf,! 
nt]<l  tell  the  Court  and  jur^',  wh#>ther  you  he-^ 
Ireve  them  to  be  the  hand- writing  of  doctop^ 
llensey,  the  prisoner  at  the  hj»r?-*/Jrw^'i»*  j 
('l*akeK  the  paperi*  and  lettenK  into  his  hands,  and 
llien  looks  fttedfastly  at  them)  Thi*y  are  uritleitl 
by  dr»cior  Henj»ey  ; — I  hey  are  his  I  mud- writing,  f 
I  am  sure  of  it; — the  more  I  look  at  tlitm,^ 
the  more  I  aru  convinced  the  pri^ntr  wrotel 
them.  ^ 

[Croia -examined.] 

Co,  for  FrU,  How  came  yoii«  Sifi  to  be  sol 
very  particular  as  to  keep  doctor  Hen«ey^a 
prescriptitMis  ? — Brown.  It  is  cubtomiiiy  lor  US 
so  to  do,  and  'Alien  we  have  Iroiu  ihontze  mnd^j 
up  our  medicinrj*  for  our  p>itieuts,  acc<irdiog  tai 
these  httle  rules  or  directions  M'iiI  us  by  thoa 
phyxiciau,  we  always  caielolly  tile  llieui,  |i>r| 
our  own  UMe  and  juiTtiHcation.  J 

Co.  Jar  Pfi$,  Indeed,  1  do  not  like  thi| 
use  you  are  now  going  to  put  them  to. 

Attornry'OcneraL  No;  I  lirlif ve  not  ;  nofvl 
your  client  at  the  bar  doca  aot  hke  the  prneat^ 
tue  of  them. 

C<f.for  Pm*    Ay,  Mr,  Auamey^  you  liatr« 


1S67]  32  GEORGE  II. 

it  all  joor  own  way ;— yoo  like  to  have  it  all  of 

your  nvvn  shle,  aoJ  tn  cjiiry  «?ery  cause  ! 
[Which  made  llie  ivbole  Couri  laugh.] 
Officer,  Huuid  by. 

Mrs.  Bhunt  re*ezainltiec], 

Co.  for  Crown,  Did  yon  erer  «ee  doctor 
Retisfy  n  nte  ? — Bhunt, '  I  ha?e  seen  liim 
Write  i^evprai  uiues  at  u  dislMice  ;  1  have  hke- 
wiae  uuw  by  me  several  little  notes  oi  his  baucl- 
Writinjf. 

Look  on  any  erne  of  tl)(*8e  writingD^  letters 
and  papers,  which  liavi*  l>een  fully  |irov<fd  to 
|ia?e  been  to  the  poasessiou  of  ductor  Ileiiier, 
and  tell  us^  whether  you  can  say,  on  youroatbf 
that  you  bilit!ve  be  wrote  ttiern  ? — I  have 
Wked  at  them  "v^ty  carefully,  and  I  think  they 
look  hke  hrs  hand-ivritinsf ;  but  1  am  not  so 
well  acquaioletl  with  wniin^r  as  to  be  able  lo 
v^^irari  that  cbeae  letters,  writings  and  papers, 
sll,  or  any  of  ihem  are  positively  the  hand- 
i*niinjr,  or  that  they  were  wrote  by  doctor 
IfpHsey,  and  hirn  only. — 1  did  not  see  him 
write  aoy  ol  them. 

Tilt"  que^tiuo  is  Dot,  wiielher  you  saw  htm 
write  all,  or  aoy  otie  of  the  Mteru,  pupers 
mid  Hritifi^^i  shebvn  you,  liut  whet  her  you  can 
froni  llie  ifcqujiitiance  you  lia¥e  with  the  doc- 
tor*}i  hand  willing,  say,  that  you  do  believe 
ihftn  to  be  wrote  by  biui? — I  canmit  s^ay  so 
positively  as  thai  amounts  tri  ;  thougb  I  ccn 
say,  (but  I  ihijik  they  appear  to  me  to  he  the 
Uaud-wriiintf  of  <lQctur  lleimey  as  far  as  i  can 
judge  of  this  matter. 

C  rosa- re  *  exam  i  tied , 

Co.  for  P/i$,  Madatn ;  yoa  seem  to  be  m 
▼ery  honest  woman  i — vow  suy  you  have  seen 
the  prisoner  write  at  a  distauce  t  Pray,  at  what 
di  stance? — Blount,  Some  times  he  would  stt 
writing;  at  the  bureau,  while  1  was  silting  by 
the  fire;  which  is  about  huUaR  far  as  I  am  to 
i^ou  ;  and  at  oiher  limes  he  would  stt  by  t!ie 
fire,  he  on  one  aide  of  the  table,  and  t  on  the 
ciher,  at  a  little  distance,  and  he  would  write  a 
letter  or  letters,  and  when  the  postman  rang-  his 
bell  in  the  street,  he  would  frr nuently  himself 
g'ivc  him  the  letter^  and  sometimes  1  have  t^^iveo 
such  tetter  to  the  poslman  to  carry  to  itie  Gene- 
ral  Post*  Office. 

\1fhy,  then  the  prisoner  never  made  any 
secret  of  hia  writing!  He  wrote  at  all  limes, 
before  you,  before  your  maid^  and  before 
any  body  else  !  Did  you  ever  suspect  him  to 
he  guilty  of  what  is  now  laid  to  his  charg^e  ? — 
I  never  had  any  suspicioii  about  the  matter  in 
question ;  I  wai  the  most  surprised  at  what 
baa  happened  ;  for  I  never  heard  him  say  any 
thing  about  the  French  kiorj  shipff,  number  of 
Dien,  armaments^  ammunjtion,  fleets,  squa^ 
dmns,  and  such  like  stuff.  I  only  know,  that 
he  was  a  doctor  of  physic  by  profession  ;  and 
Ibat  as  to  matters  of  faith  [  knew  he  was  a 
Roman  Catholic;  but  that  I  uo otherwise  knew 
Ihaii  by  hia  constant  custom  of  g-oi  iig  to  prayers 
to  the  Popish  chapel  in  Sobo-souare,  erery 
ttoroiiig,  hail  I  rain  or  sbioe,  as  tae  sayuig  isy 


Trial  of  Dn  Hensey^ 


n> 


hut  be  never  toTd  roe  he  was  %  RoQmbC 
This  \  know,  he  is  n  -  ■  '   ^ 'incft  ptl 

natured  man  ;   «villn  '^fitii^ 

sion  to  do  any  one  a  kniuni-^,  uii«i  rtad^  u\ 
times  to  assist  the  poor.  He  is  Nkc«itt'ii4| 
man,  always  kept  gncifl  baura,  moA  bi  ful 
to  any  one  vice  I  cottftl  perceive. 

And  pifrhaps  you  iltiftk»  it  is  pitya»tl 
this  character  sliotihl   l>e  hau^if  l^-laMll 
do;  and  I  hope   he   vfiJI   not.     plkieb  i 
the  Court  laugh.] 

Barah  Wii$an  re-ejcsmioed* 

Co.  for  Croajn,     0i4  jo*i  ever  see  Dr.B»l 
sey  write  l^WiUon,  Yea,  Str,  several  linBi| 
a  distance,  and  1  have  sceo  of  kis 
many  limes. 

What   wnlingt   bave  you  ««caf- 
wmsherwomen's  bills,  aad  the  &u^ 
of  letters;  but  theu  I  never  took  any  \ 
notice  of  ihtm,  because  I  never  Uiougbl ttel  I 
should  ever  be  questioneil  atjoul  ibetn. 

No,  1  believe  not ;  but  Xwik  on  llies 
writings,  and  letlem,  and  »ee  if  you  rasp  | 
cetve  whether  the  baud-wrUidi^  otLbent  btUi 
the  hand-writing  of  the  wrasherwomiu^t  hii 
you  mention,  and  which  you  have  cn«^-J  | 
cannot  say,  that  1  used  ti>  iiVind  the  bitl»  i 
he  i^ve  me  10  give  bia  wa!»herwotnAU| 
used  to  give  her  the  buiidl**  and  the  1 
and  [  very  seldom  reail  the  bill  till  fihe  I 
home  the  doctor *s  linen,  when  1  or  my  mittiAl 
my  mistiress  most  cotmnouty,  usrd  lu  i 
the  things  by  the  bilL  But  now  I  Ui«| 
these  wniiiigs,  pnj^era,  tiiid  letters,  I  ihi»i>  tkr  I 
are  wrote  tiy  the  same  person  wbu  wr«teiif| 
bills  I  hove  mentioned ;  but  i  caiuioi  lakf  ^  I 
me  to  be  so  sure^  as  to  s«ve«r  that  ibeieafttkt  | 
bund  -  w  I  itt  ng  ot  Dr.  Uensey « 

Elizahttk  Smith  re-«xamiiied« 

Ca^for  Crotrn.    Sarah  Wilson  the 
dence,  says,  that  she  d^fiv  ereij  lo  vmi  i 
with  the  doctor's  liueii«  m   bill  )*|i 

doctor.     Did  you  ever  !iee  the  H 
Smith.  No,  I  never  did ;  but  I  have  see 
bills  which  I  was  tohl  wiva  ot  bm  hanrl- 

How  many  of  these  bills  n>i'j  -r^l 

One  with  every  parcel  or  bm  y«  I " 

washed  for  the  doctor;  f  washed  1m^  lii^easoff  I 
a  month,  that  was  generally  the  inj^tom;  o' 
1  believe  I  might  receive  ten  or  t  fihm 

bills;  but  then  every  one  of  i  -  «► 

turned  to  Mrs.  Blount;   when  site  ar  suinfJitfi 
her  maid  used  to  examine  the  Hneo  I  htdt^  I 
home  by  the  hiti,  and  pay  me.  I 

Hoiv  do  you  know  then  iliat  Ibe  hllH  ^m 
wrote  by  the  doctor? — There  hrtf"»**"^<  ^oit 
di:^pute  about  a  shtrt  that  was  h  -4  i 

that  chspuie  the  doctor  produced    :  ^        u j  ^  | 
washing,  and  then  be  said,  Ibsl  be  Mt  tl  ^ 
with  bis  own  hand. 

You  are  well  enough  mc  ]  with  fk 

doctor^s  hand- writing  to  teli  t  diefcc  pa- 

pers, writings,  and  letters,    look  i«ke  hi^Ut^-  - 
writiDgp  or  not  i  took  oa  tiieiii,  «iid  icU  ui  nbt  1 


I 


for  High  Trmion. 

3^00  think  ortliem.^-A«  far  as  I  cau  jmlge,  f 

tfiu  k  Th.  V  nre  like  ihe  doctor's  b«titl-wrUiiig  ; 

i  .>./,»/  i'rii.  Ay,  yog  are  an  honest  wo- 
mari^  ntir  would  1  6\reiir  to  n  thing  1  Jon'l 
know ;  but  niy  broiher,  Utte^  would  have  you 
6 wear  vi  liiit  you  uever  saW|  Dor  1  am  atiaid 
nuw  you  net er  wilt,  Umt  is,  that  you  saw  my 
unhuppy  cUent  wriie.* 

Co,  for  Crown,  Thus  hare  I  laid  heCore  you 
our  evidence  to  prove,  that  the  wntio^s,  tec* 
lerSf  and  p>i|>en»t  we  have  produced  are  the 
liand-wniitj^  of  the  prisoner  at  the  bar,  which 
I  hope  we  have  done  to  your  entire  sattylaction  ; 
we  come  now  in  the  last  place  to  prove,  that 
■eterat  of  these  letterSi  papers,  and  writings, 
were  sent  by  the  prisoner  at  the  bar  to  the 
ae^'^f  orficcrs  and  gubjecu  of  the  French 
ktngf,  to  i^ive  them  inteihgence  of  what  passed 
here,  in  order  to  distress  that  munarcli  auil  hia 
subjects.  We  shall  call  you  two  wUnes^ef  to 
pro?e  this  accaSBti<in  a)|fatnfit  the  prisoner  *,  and 
then  lastly,  weahall,  under  favour  ofihe  Court^ 
read  the  letters  us  part  of  the  et idence  to  be 
Ipveu  in  thin  cause.     Call  James  Newman. 

Jama  Nf»man  sworn* 

Co.  for  Cratcn.  Do  you  belongs  totheg^e* 
neral  post* officer — Newmnn.  Ye«;  !  rinif  ihe 
l*ell  in  Arundel  St  reft  in  the  ^trniid  for  tiost 
letters,  and  in  ilmtwalk;  and  when  I  have  col- 
Jecud  them  together  I  carry  them  to  the  post* 
oilice. 

How  lon(;  have  you  coHccled  letters  in  that 
walk  ?— ThfL*e  or  ttiur  years. 

Do  you  know  the  prisoner  at  the  bar,  Dr, 
ff  ensey  T — Yes  ;  I  know  him  very  well ;  I 
iia%e  kt»own  him  uh^fe  eighteen  inonihs. 

Tell  the  Court  and  jury  what  you  know  re» 
lativeto  him.— I  have  ofitrn  recfiied  from  the 
prisoner  at  the  bar  letters  of  a  post-ni^ht  to 
carry  tu  the  office  in  Lombard««lreet,  and  hare 
carried  anil  delivered  them  tu  the  office,  as  I 
used  to  do  other  letters  ;  hut  at  length  I  began 
to  suspect  them. 

How  C$1  me  you  to  nusftect  the  prisoner  at  the 
bfir  of  carry  in^  na  a  trensonable  curre^jHindence? 
— When  )  have  jfot  nil  my  tellers  toi;eiher,  1 
carry  them  home  aud  nort  fhem  ;  tn  sortinic  of 
them  I  obserred  that  the  letlers  I  reet*iv»»d  ot 
Dr  Henscy  were  g^encrally  directed  abroad 
and  to  ihniyttiern ;  and  t  kiiowini^  the  doctor 
to  be;  A  Roman  Catiiotic,  and  an  I  imapned  in 
Ihe  »ntcr««*l  of  the  Pretciider,  I  advised  Ibc 
examining  clerk  at  ihe  ofHce  to  inspect  his  let* 
ten,  trtliiig  him,  thnt  1  had  some  tmspicion, 
that  the  writer  of  thoMs  letters  was  a  spy, 

Diii  you  open  any  one  of  thene  letters  your- 
self?— No;  but  I  happened  to  chaTleni;e  the 
letter  about  the  Secret  Exii«'dition ;  and  when 
ic  was  opened  at  the  post-ofiice  and  tiitind  to  be 
what  it  is,  ftl\er  that  1  receivi^l  dir«N?tions  to 
bnng  every  letter  I  reorived  from  the  iloclor*s 

^  As  to  proof  of  hand^writing,  see  vol.  17^ 
pp.  f 97.  305,  and  PctU't  Lmw  of  firldeace, 


A,D.  1758, 


[mo 


own  hand,  or  from  that  house,  direclTy  to  tht 
office  that  it  mi|;ht  be  tipened  ;  %nd  60  I  cod* 
tmued  to  do  til)  the  doctor  was  taken  up, 

If  yon  were  to  aee  thefie  iniereepied  tHterftj 
should  you  know  iht'm  ag^ain  ?— Yes  ;  I  !dioul4~^ 
know  them  a^in  by  Ihe  oiiteide^  because  thej) 
liove  i^ot  my  mark  H|>on  them. 

Look  on  these  letters,  and  tell  ua  whetbe 
these  are  the  very  letters  you  lecetve^l  of  doctor 
Hensey  to  carry  to  the  uciat-nfiice. — I  receit«4 
these  very  letter*  from  Inc  docior^A  own  hands, 
or  from  the  maid  or  mistress  of  the  house  In 
which  Dr.  Hensey  h)dg^ed;  .someiimes  one 
and  sometimes  another,  to  carry  them  to  thi 
po«t' office ;  and  I  did  carry  ttiem  to  the  postji 
ofBce,  where  they  were  stopped  or  interceptedJ 

To  whom  did  you  gpive  these  letters  at  thd 
post- office  ?— To  Mr.  Matthews,  one  of  ihi 
examining  clerks. 

Do  you  know  any  thifig*  more  concerning 
this  matter? — I  never  heard  any  thfn|^  moit 
after  Dr.  Hensey  was  taken  on  8uuday  tbll 
21st  d9y  of  August  Ust  till  now. 

[Cross-examined.] 

Co,  for  Prisoner ,    How  came  yon  to  kno 
that  Dr.  Hensey  was  a  Roman  Caltiulic?  Wha 
liml  you  to  do  Hith  his  reliinon?^ — NczrmaH 
We  fetter- carriers,  or  postmen,  have  ^real  op«J 
portunitirs  to  know  the  characters  ami  di»<p*ii^ 
i^rtions  of  ifentlemen  m  the  aeverul  nFi(?lilK^»ijr<^ 
hoods  of  this  part  of  ihe  town,  from  iheir  seT^' 
vants  connexions  and  correspondents;  but  td 
he  plain,  if  I  once  leHrn  tb^it  a  person  who  hvi' 
a  genteel  Ii1e«  is  a  R*tman  Catholic,  I  tmme 
diutely   look  on  him  as  one  uho  by  e<luratioq 
and    principle   is  an  inveierwte  enemy  to  mjfl 
kin£[^,  my  country,  and  the  Piuti^ttfnt  reh^ionP 
This  led  me  to  keep  a  watchful  eye  over  DfJ 
Hen^icy,  and  to  ^kUnpeci  him  of  carry iitg  od 
correspondence  with  the  kind's  enemies. 

You  Bay,  that  yoti  never  opened  oue  of  Ihl 
prisoner's  letter**,  uhy  ilid  you  not? — The  finf 
letter  which  I  challent;ed,  or  sus[M?cled,  in  mj 
own  mind,  an  1  was  one  nixht  sortini;  my  Icl^l 
lers,  1  held  up  to  the  candle,  by  which  meantf 
I  perceived  that  the  bfidj  of  the  letter  wa ' 
wrote  in  Preitch,  and  that  it  be$jun  with  lb 
word  Monstieur.  It  l>cin(5  wrote  in  French  in«^ 
creased  my  xustpicion,  and  determined  me  t^i 
challenge  the  letter. 

Thomas  Maithewi  sworn. 

Co.  fur  Croun,    Sir,  do  you  know  any  thing^ 
of  certain  letters  said  lo  be  wroie  by  the  pri« 
toner  at  I  lie  bar,  and  intercepted  at  your  office  f 
—  Matthttxit,     When  war  is  dtclured  ai^atoff 
any  nation^  immediate  orders  are  \^\Pt\  i»ut  hf 
the  Post  Master  General  to  stop  nil  suflprcie^ 
fellem,  in  order  to  prevent  iniellijjence  Ijcinfl 
i;iven  Ihe  enemy  of  our  transactions  at  home^ 
These  orders  are  |»iven  to  all  the  clerks  of  th# 
ftaui  office,  and  lo  every  servant  carryinif  let«1 
trrs.     Acrordint;  to  whu  h  orders,  the  po?iimaaJ 
of  the  walk  in  which  tlie  nriaoner  at  the  bar 
lit e^,  havime  teanit,  u^h  I  fmd,  that  doctor  Ifen- 
t«y  WM  a  Homatt  Cathoiic,  and  tbit  all  the  IcW 


1371]  32  GEORGE  II. 

tera  be  received  from  him,  or  from  the  house 
in  which  he  lodged,  were  directed  to  people 
abroad,  he  came  to  me,  and  told  me  his  sus- 
picioDS,  and  did  challenge  ooe  particular  letter  ; 
which  on  being  opened,  1  found  was  undercover 
directed  to  a  second  person,  and  so  to  a  third. 
This  strengthened  my  suspicion ;  and  the  coo- 
tents  of  this  letter  being  read,  orders  were  im- 
mediately given,  not  only  to  intercept  the  let- 
ters which  came  from  doctor  Hensey,  but  also 
carefully  to  intercept  all  the  letters  that  should 
come  to  the  post-office  directed  to  the  said 
doctor  Hensey.  These  directions  were  given 
with  all  the  secrecy  imaginable,  and  executed 
with  success. 

Sir,  look  on  these  letters,  and  let  the  Court 
know,  whether  these  are  the  very  letters  sent 
by  doctor  Hensey  the  prisoner  at  the  bar,  to  his 
correspondents  abroad,  and  which  were  inter- 
cepted at  your  office? — Matthews,  (Examin- 
ing the  letters  one  by  one.)  They  lie  now  in 
the  order  they  were  intercepted ;  I  received 
eveiT  one  of  these  letters  from  the  postman 
of  the  walk  ;  their  contents  were  examined  ; 
and  1  was  ordered  to  carry  them  to  the  secre- 
tary of  state's  office  at  Whitehall,  where  I  de- 
livered them  to  the  honourable  Mr.  Stanhope. 

Counsel  for  Crown.  My  lord,  we  will  rest 
the  evidence  for  the  crown  here ;  and  beg  the 
€ftvour  of  the  Court,  that  under  their  directions, 
the  several  papers,  letters  nnd  writings  pro- 
duced and  proved  to  be  the  hand-writing;  of  the 
prisoner  at  the  bar,  may  be  read  as  evidence  in 
this  cause. 

Counsel  for  Pris.  '  (Interposing.)  My  lord, 
J  hope  the  Court  will  favour  me  with  a  word  or 
two  in  behalf  of  the  prisoner  at  the  bar:  and, 
my  lord,  I  must  observe,  that  these  letters  can- 
not, I  speak  under  the  favour  of  the  Court,  be 
read  ;  because  nothing  is  oflered  by  the  evi- 
dence to  shew,  that  lliese  letters  are  an  overt- 
act  of  the  prisoner,  and  where  there  is  no  overt- 
act  the  offender  cannot  be  guilty  of  hi^h-trea- 
son  ;  the  prisoner  at  the  bar,  at  least,  it  has  not 
been  proved,  any  cr.e  of  the  prisoner's  letters 
came  to  the  haiuls  of  the  agents,  oBicers  or 
subjects  of  the  French  kiD<]f ;  if  they  had  come 
to  their  hands,  if  they  had  received  these  let- 
ters, then  in  such  case  they  would  have  con- 
stituted an  overt-act,  and  consequently  the 
prisoner  at  the  bar  would  be  guilty  ;  but  as 
Uie  case  is,  as  it  really  is,  it  amounts  to  no 
more  than  this ;  a  mere  suspicion  of  treason  ; 
and  it  would  be  a  very  great  hardship  a  person 
should  be  put  to  death  lor  mere  suspicion  of 
treason  ;  nay,  these  very  letters,  for  ought  that 
appears  to  the  contrary,  might  have  been  put 
into  the  doctor's  bureau,  contrary  to  his  know- 
ledge and  consent.     And  this  was  the  case  of 

lord  Sydney,*  the  letters  he  was  said  to  send 

1 . 

*  Query,  What  case  is  here  intended  ?  AI- 

J^ernon  Sidney  was  not  charged  with  sending 
etters  to  the  enemy,  ^ee  the  Indictment 
against  him,  vol.  9,  p.  617,)  nor  is  any  thing 


Trial  of  Dr.  Hcnset/, 


[137* 


to  the  enemy,  were  proved  to  be  tent  by  another 
hand,  and  being  intercepted,  the  letters  never 
reached  the  enemy,  and  therefore  the  bill  tor 
taking  off  his  attainder  expressly  says,  that  the 
jury  was  imposed  on,  and  because  the  letters 
did  not  reach  the  enemy,  he  was  not  guilty. 
But  if  the  Court  should  be  of  opinion  some  of 
these  letters  should  be  read  ;  yet  I  cannot  see 
with  what  propriety  the  two  fintt  letters  marked 
N^  1  and  N**  2,  should  be  read^  since  they  were 
wrote  some  time  before  the  declaration  of  war 
against  France. 

Lord  Manxfield.  That  which  constitutes  an 
overt-act  in  the  eye  of  the  law,  is  the  accom- 
plishment of  the  end  proposeil  by  the  partv 
acting  to  the  best  and  utmost  of  his  power.  If 
a  man  endeavours  to  do  an  act  of  treason,  and 
that  act  of  treason  fails  through  some  inter- 
vening accident  or  occurrence,  the  party  to  en- 
deavouring and  acting  to  tlie  best  of  bis  ability 
and  power  is  deemed  to  be  gailty  of  an  overt- 
act,  as  though  he  had  done  the  thing  he  had 
proposed  and  intended.  Thus,  io  cases  of 
murder  as  well  as  treason,  suppose  a  man  firing 
off  a  gun,  or  a  pistol,,  with  a  premeditated  de- 
sign to  kill  another,  and  by  some  accident  or 
event,  either  the  gun  or  pistol  do  not  go  off,  or 
the  party  shot  at  evades  the  blow,  the  party 
shooting  IS  guilty  of  an  overt-act,  and  is  liabb 
to  be  indicted  as  guilty  of  a  capital  offence.  It 
is  the  same  here,  the  prisoner  at  the  bar,  as  far 
as  appears  upon  the  evidence,  and  nothing  bu 
yet  been  offered  to  invalidate  or  lessen  the  evi- 
dence that  has  been  given,  or  to  impeach  its 
veracity  or  even  prot»ability,  did  intend  to  send 
the  letters  intercepted  to  the  French  kiog^s 
agents  La  Roche  aud  P.  de  France,  as  far  as 
lay  in  his  power  ;  his  intentiou, — the  iuteniiun 
appears  plainly  in  his  sending  them  to  thepo»t- 
otiice  ;  the  prisoner  could  not  carry  the  letters 
himself  to  Paris;  no,  he  was  to  t>end  advices, 
instructions  aud  intelligence,  that  was  the 
agreement.  Now  the  point  is,  whether  the 
prisoner  at  the  bar  did  send  them  ?  Why,  it 
has  been  proved,  that  the  prisoner  did  seod 
them,  and  that  they  went  from  Arundel-street, 
in  the  Strand,  as  far  as  to  the  post-office  in 
Lombard  street;  where  they  were  intercepted. 
Where  were  they  going  then?  Why,  U  is 
plain,  the  prisoner  intended  them  to  go  abroad, 
as  directed,  to  the  agents  of  the  French  king. 
Now,  who  are  the  agents  of  the  French  king  ? 
Those  w  ho  are  and  hav^  been  declared  the 
enemies  of  his  majesty,  and  of  his  subjects  ever 
since  the  17th  of  5lay,  in  the  year  1750. 
Herein  the  overt- act  of  the  prisoner  at  the  bar 
consists,  and  in  cases  of  treason,  the  statute 
makes  every  attempt  to  inform  the  enemies  of 
his  majesty  of  the  state  of  affairs,  whilst  in 
open  war,  an  overt-act,  because  such  attempti 
to  disturb  the  public  peace,  and  lay  the  nation 
open  to  the  insults  and  invasions  of  its  enemies, 

of  **  letters  not  reaching  the  enemy"  men- 
tioned in  the  Act  for  anntiUiog  his  attainder* 
See  it,  vol.  9,  p.  996, 


1373] 


for  High  Treason. 


is  construed  to  be  a  compassing  of  the  life  of 
our  sovereij^n  lord  the  kinr,  and  an  ahsohite 
eudeairour  to  dethrone  bim.  As  to  my  own 
part,  the  letters  under  consideration  appear  to 
me,  to  be  absolute  overt-acts,  as  real  overt- acts 
as  can  possibly  be:  but  whether  the  jury  shall 
think  so,  is  to  be  left  to  their  consideration,  who 
are  indeed  the  best  and  proper  judj^es.  Every 
one  of  the  letters,  especially  those  ^iven  to  the 
postman,  to  be  sent  abroad,  are  absolute  overt- 
acts,  and  in  this  cause  oujc;ht  to  be  read.  Now 
as  tu  the  two  first  letters,  concerninir  which 
so  much  has  been  said,  why  they  should  not  l)C 
read,  the  objection  is  trifling-,  for  whether  they 
be  read  or  no,  this  cause  cannot  be  much  af- 
fected, because  they  are  not  proposed  as  evi- 
dence, but  only  as  letters  to  be  read  by  way  of 
preface  and  introduction  to  this  iniquitous  affair. 
They  are  letters,  the  subject  of  which  do  not 
affcrt  the  prisoner's  life,  if  they  did,  that  were 
another  thinsr;  but  as  they  do  not,  I  shall 
leave  it  to  my  brethren  ;~-l  think  they  should 
be  read. 
Of  this  opinion  were  the  rest  of  the  judges. 

Court,    Let  all  the  letters  be  read. 

They  were  accordingly  read  to  the  number 
of  twenty-nine  letters. 

[The  substance  of  which  lelteni  follows :] 

Iruoue  of  these  letters,  Dr.  Hensey,  the  un- 
happy prisoner,  havinj;  before  tlie  breaking  out 
of  the  war  with  France  heard,  that  a  fellow- 
student  of  his,  whilst  he  studied  physic  at 
Leyden  in  Hc^l^nd,  was  lately  pfot  into  the 
secretary  of  stale's  office  fur  foreign  affairs  at 
Paris,  wrote  to  him,  and  informed  him,  **  That 
lie  should  he  {rJad  of  an  <»pportunity  of  doin^f 
liim  any  bervice  that  lay  in  his  power,  and 
executing  any  coumiission  be  might  have  in 
Loudon." 

To  this  letter  Dr.  Hcnsey's  fellow-student 
returned  for  answer :  **  That  he  was  infinitely 
obliged  to  him  for  the  service  he  offered,  and 
that  if  he  understood  him  rightly,  their  corre- 
spondence might  be  rendered  more  advantage- 
ous to  lioth,  by  changing  their  topics  from  lite- 
rary to  political." 

In  a  secbnd  letter  which  Dr.  Hensey  sent 
to  his  fellow- student  in  answer  to  the  above, 
he  says:  *<  That  he.  was  glad  to  find  so  dis- 
cerning a  man  in  his  fellow-student,  and  if  he 
could  obtain  for  him  a  recompence  suitable  to 
the  trouble,  he  would  endeavour  to  make  his 
intelligence  of  the  utmost  importance." 

8oon  after  his  fellow- student  had  received 
this  second  letter  from  Dr.  Hensey,  he  sent 
Jiini  a  long  letter,  wherein  the  doctor  was  in- 
formed he  was  to  receive  for  his  trouble  and 
correspondence  500  livres,  or  25/.  sterling  a 
quarter.  And  in  the  same  letter,  Dr.  Hensey 
was  instnicted  to  send  lists  of  all  the  English 
men  of  war,  in  and  out  of  commission  ;  their 
condition,  situation,  and  number  of  men  on 
board  each ;  when  they  sailed^  under  what 
commanders,  from  what  ports,  and  their  desti- 
«atimiS|  accouots  of  the  actual  number  of  our 


A.  D.  1758.  [1574 

troops,  what  regiments  were  complete,  and 
which;  where  recruiting,  where  tliey  were 
quartered  or  garrisoned  ;  the  earliest  accounts 
of  any  enterprises  against  France ;  plans  of 
fortified  places  in  England,  America,  ^c.  This 
letter  also  contained  directions  to  the  doctor  to 
whom  he  was  to  send  his  letters  with  an  out- 
side cover,  some  to  Cologne,  some  to  the 
Hague,  and  some  to  Bern  in  Switzerland  ;  and 
that  those  persons  to  whom  his  letters  should 
be  sent,  as  soon  as  received  by  them,  would 
forward  them  from  thence  to  Paris. 

The  substance  of  another  letter  read  in  court, 
complying  with  the  instructions  of  the  above 
letter,  was  :  *'  That  the  English  had  fitted  out 
a  large  fleet  at  Spithead,  and  given  the  com- 
mand to  general  Mordaunt  and  admiral  Hawke, 
and  that  this  squadron  was  intended  to  attack 
Uochefort,  and  to  make  a  descent  on  that  part 
of  the  French  coast." 

In  another  letted,  Dr.  Hensey,  afler  having 
given  bis  correspondent  an  account  of  the  con- 
dition of  the  English  fleet  and  army,  how 
many  ships  guarded,  and  what  troops  lined  the 
coasts  of  England,  informs  him,  *'-  That  the 
people  in  England  were  generally  dissatisfied 
with  the  public  proceedings,  that  the  public 
credit  was  almost  totally  destroyed,  and  th^ 
finances  quite  exhausted.  Advises,  That  an 
invasion  be  directly  made  on  the  English  coast 
with  a  considerable  body  of  troops  ;  and  that 
now,  in  bis  opinion,  was  the  time  lo  strikje  the 
final  blow." 

In  a  subsequent  letter,  Dr.  Hensey  says^ 
*'  That  the  only  means  of  preventing  the  suc- 
cess of  the  expedition  (he  means,  that  to 
Kochefbrt)  wouh^be  to  make  a  |H)werful  divert 
sion  upon  the  coasts  of  England,  with  a  con- 
siilerable  number  of  troops  ;  that  by  thus  at- 
tacking us  in  our  very  vitals,  we  might  be  en- 
gaged at  home,  and  so  prevented  being  able  to 
senda  number  of  troops  abroad  sufficient  to  give 
them  (the  French)  any  real  annoyance." 

In  a  letter.  Dr.  Hensey  received  from  his 
correspondent,  after  he  had  given  him  this  ad- 
vice, the  doctor's  salary,  which  was  till  now  no 
more  than  25/.  a  quarter,  was  augmented  to 
25/.  a  month.  This  was  done  in  compliance 
with  a  letter  sent  by  the  doctor  to  his  corre- 
spondent desiring  an  increase  of  his  salary,  for 
that  he  was  obliged  to  dine  every  day  with  a 
set  of  gentlemen,  at  a  noted  cofiee- house, 
where  they  always  drank  claret. 

In  one  of  the  tetters  Ibund  among  the  papers 
taken  out  of  the  doctor's  bureau,  which  he  had 
received  from  abroad,  were  complaints :  **  That 
of  late  he  had  sent  trifiing  and  insignificant  in- 
telligence ;  that  they  were  better  served  by  one 
who  had  livetl  at  Colchester ;  that  there  was 
no  need  of  acquainting  them  with  what  the 
duke  was  (h>ing  in  Germany."  This  letter 
cencludes  with  instructions  to  Dr.  Hensey  to 
write  his  letters  in  lemon-juice,  and  to  direct 
for  his  brother,  who  was  chaplain  and  under- 
stcretary  to  the  Spanish  minister  at  the  Hague. 

Accordingly,  the  doctor  followed  the  advice 
of  his  ONTespoDdeoti  and  the  next  letter  he 


1575]  .        9S  GEORGE  IL 

wrote,  wti  wmle  io  Um  fnllowiogf  mftoiier. 
It  was  a  c^impliioenlary  letter  wrote  in  black 
jok,  and  the  lines  were  wirfe  wrote.  Between 
the  wiile  wrote  Knea,  Dr.  Henaey,  the  priaoocr 
At  the  bar,  wrote  a  letter  in  lemon-juice,  wbere- 
jo  he  f  ery  early  ipre  intelligence  of  adoiiral 
Holbouroe*»  (wstmation  lo  America,  with  a 
ininate  account  of  the  number  of  ihipa  and 
troopf  on  lioard,  with  the  day  of  their  departure. 
Fniro  I  he  readioif  of  another  letter  it  ap- 

Ethat  doctor  Heoaey  gave  the  French  the 
ccount  of  admiral  Boecaweo's  sailing  to 
America,  and  of  the  taking  of  the  Alcide 
and  I^ys  men  of  war,  with  tfwy  circomstaoce 
relating  thereto. 

In  many  oiher  letters  read  in  court,  Dr. 
Hensey  gi^es  the  French  an  account  of  the 
•ailing  of  e? ery  fleet,  and  its  destination ;  of 
the  launching  of  cf ery  roan  of  war ;  of  the 
difficulties  relating  to  raising  money ;  -^  iu 
■hort,  nothing  escaped  him,  which  be  thought 
worthy  the  notice,  or  which  be  thought  might 
be  of  service  to  bis  correspondents  the  French. 

Cdttii.  for  Crown,  My  lord,  and  gentlemen 
of  the  jury,  we  have  now  read  all  the  letters 
relative  to  the  offence  committed  by  the  pri- 
•oner  at  the  bar ;  and  here  we  shall  rest  our 
evulence. 

Prisonee's  Defence. 

Coufuelfor  the  Primmer.  My  lord,  and  yon 
gentlemen  of  the  jury,  I  am  of  connsel  for  the 
pruMner  at  the  Mr,  Florence  Henaey,  doctor 
of  physic,  who  you  have  heard  stands  indicted 
for  a  very  heavy  crime ;  a  crime  of  a  very 
heinous  nature;  and  a  crime  if  it  had  been 
proved  clearly  would  have  affected  his  life;  1 
shall  therefore  endeavour  to  shew  the  weakness 
of  tlie  evidence  ((iven  on  the  side  of  the  crown  ; 
and  shew  that  the  prisoner  is  not  guilty ;  at 
lesst,  if  guilty,  yet  not  guilty  of  high  treason. 
And  with  subinisKion  to  the  Court,  as  I  have 
been  appointed  one  of  the  counsel  for  the  pri- 
soner, I  hope  no  word  ur  expression  which  J 
shall  fling  out,  during  my  pleading  io  his  be- 
half, will  be  construed  in  any  sort  to  affect  the 
allegisnre  which  I  always  had,  have  now,  and 
ever  shall  have  for  his  majesty.  And  flrst, 
gentlemen,  give  me  leave  to  remark  on  the  evi- 
dence  which  has  been  given  to  support  the 
charge  brought  against  the  prisoner  at  the  bar. 
We  Hco  this  cause  is  made  a  matter  of  the 
gpreatr.st  importance  ; — all  the  other  courts  of 
justice  an;  not  sitting;  and  the  whole  attention 
of  the  law  seems  attracted  hither  to  attend  the 
event  thereof.  They  have  called  you  6rst  a 
messenger  and  divers  others  to  prove,  that  some 
letters  and  wrttin<;s  were  found  in  a  certain 
bureau  ;  and  that  because  they  were  there,  and 
they  were  there  in  a  room  the  prisoner  rented, 
they  must  therefore  be  the  prisoner's  writing ; 
they  might  be  put  into  the  bureau  by  another 
hand  ;  fur  their  own  witnesses  allow,  that  Mrs. 
Blount  often  had  the  key  of  the  bureau,  went 
to  it  at  pleasure,  o|»ened  it,  put  things  into  it, 
^  tM»k  than  out,  when  ahe  liked,  or  ai  she 


Trial  ^Dr,  Hensetft 


[1376 


thought  proper ;  and  becanae  the  prisoner  had 
•nmelimes  the  use  of  this  bureau,  and  ac- 
cordingly did  now  and  then,  though  verj 
eeklom,  nae  it,  therefore  all  the  papers,  writiogi 
and  lettera  must  be  bis,  and  bis  only  ;  raut 
belong  to  him,  and  to  him  only,  and  must  be 
his  writing,  and  hu  writing  only.  It  is  not 
reasonable  to  suppose,  no  one  can  suppose  it, 
who  gives  himself  time  to  think  at  all,  that  the 
prisoner  ahould  be  so  weak,  t bought lesa,  aod 
inconsiderate  as  to  put,  it  might  rather  be  said, 
expose  treasonable  pspers,  writings  and  letten 
in  a  bureau,  other  peraona  and  people  bad  free 
and  ready  access  to,  and  to  which  they  oouki 
come  at  any  time,  in  the  day-4ime,in  the  nigbt- 
time,  and  at  all  times.  One  of  their  own  wit- 
nesses says,  that  ahe  often  had  the  key  of  tbif 
bureau,  and  that  ahe  used  frequently  to  take 
out  Dr.  Henaey's  linen,  deliver  it  to  the  waabe^ 
woman,  and  when  washed,  receive  it  back 
again,  and  then  replace  it  in  this  bureau,  which 
it  seems  stood  in  a  parlour  the  priaoner  at  the 
bar  rented  by  the  week,  or  by  the  montb.  of 
one  Mrs.  Blount  who  keeps  a  house,  and  Icii 
out  ready  fumiahed  lodgings,  in  Aruiidel-sUtet 
in  the  Sitrand.  As  for  my  own  part,  I  do  not 
think,  that  it  has  been  clearly  and  aatisfsctori- 
ly  proved,  at  least  it  does  not  appear  ao  lo  me, 
that  the  bureau  in  queation  waa  ever,  and  it  is 
certain  it  never  was  wholly,  in  the  use  and  (nm- 
session  of  the  prisoner  at  the  bar ;  but  ibfse 
tbinga  must  be  left  to  you,  gentlemen,  on  wliose 
determination  the  life  of  the  prisoner  depends. 
Again,  gentlemen,  to  prove,  that  the  letten^ 
writings  and  papers  found  in  the  said  burets, 
and  some  other  letters  said  to  he  intercepted  it 
the  Post-office,  are  the  hand- writing  of  Dr. 
Hensey,  the  prisoner  at  the  bar,  they  have  pro- 
duced two  witnesses, that  they  are  the  hand-writ- 
ing of  the  prisoner ;  but  how  du  tliey  prove  it ! 
Why,  one  of  these  witnesses  says  hiinseif,  tbat 
he  never  did  see  the  prisoner  write  but  «iDre, 
and  that  was  in  the  dark,  at  night,  in  the  eveu- 
ing,  at  owl-light ;  and  the  other's  evidence  ur 
testimony  turns  chiefly  and  principal! v  upon 
thesimihtude  of  hands,  or  of  baud -writing; 
and  let  me  tell  you,  that  the  doctrine  of  the  si- 
militude of  hands,  and  the  similitude  uf  wriiini|rs, 
is  a  species  of  evidence  in  itself  extremely  un- 
certain, vague  aod  trifling ; — and  as  to  the  see- 
ing of  another  write ;  whot  is  there  in  that  I 
All  of  you  have  seen  me  write  to-day ; — snd 
write  a  good-deal ; — but  what  avails  that  f 
Can  any  one  of  you  from  thence  sav,  nnicU 
less  swear,  (swearing  is  a  aacred  thin^)  that 
you  know  my  hand- writing  ?-^That  a  persno 
should  know  the  hand -writing  of  another,  so 
as  to  swear  to  the  identity  and  sameness  of  tt, 
it  is  certainly  necessary,  that  the  person  wbo 
takes  ui>on  himself  to  swear  to  the  similitude 
of  hands,  should  be  well  acquainted  with  tbal 
person's  method  and  form  of  writing ;  with  tiie 
very  turn  and  make  of  the  letters ;  and,  in 
short,  as  every  man  almost  has  different  genioii 

even  with  his  stile  and  manner  of  ezpressisa; 
but  how  this  is  possible  to  be  done  by  any  oac 

•of  the  evidence,  who  iioir*niid-lhcB,  eccidei' 


I3T7] 


fiw  nigh  Treason, 


tally  0r  ocwttionally  Be*»  the  pris<»imr  write,  I 
caniiot  ccin€!<^U«.  in  this  cjiie  there  \u  but  one 
i>0!iitive  €vi(leace  to  the  urisont^r^s  hAiid-writ^ 
ini|,  Hn«1  that  in  lUeDdiz  cm  Coitn,  >i'hti  is  very 
positive  10  tht*  hunt!  writin^^  of  tlie  priiooer  At 
the  hitr ;  imt  imlerd  h«  ih  ho  very  )>r>»itivef  that 
It  almost  ilej»lrriyi»  or  hriiii*^  inUt  s<mpicioft  i\w 
crediUility  ot  his  cfiileuce,  Whot  hai^  iuduced 
liim  t<i  i^me  roto  this  rotirt,  and  here  openly 
and  positively  s^vrar,  Ihtiii  the  similitude  of 
writhiifs,  thHt  tlif  vrriiMi^fs,  letters  atMl  papent 
nf>w  brt'orp  the  f.'ourlare  ihevery  hnixl-writini; 
of  doctor  Florence  Heus'ey,  the  prisoner  at  the 
liftr,  were  tvroti*  liy  liini,  and  by  him  only  :->! 
my,  wUhi  Uii*^  iiiduied  the  evid^^tice  to  do  (hii^, 
njiifit  hk*  Wi\  tohirriteUf  and  U\»  own  conscieneei 
but  charity  forbidsi  intt  to  suifif^e«tf  that  his  mo* 
liven  tor  thus  uiiinir  his  old  acipuiintauce^  and, 
lauppoie^somc  lime  iitltrnateaiid  hos<nn  iVteud, 
are  nny  oilift  thun  the  ulFei'lttiri  and  duty  U^ 
Qwen  to  hia  iiiajf'^iy,  and  the  prr^rvaiion  of 
Ills  lout;  anil  pm>ioii«  Uia  ;  and  the  htve  which 
be  benrv  to  ihi«  country,  nml  the  inhabilanl<« 
thereof;  hut  iheHc  inotive«,  or  any  other  whirh 
tfkMy  or  shaU  ume  to  ymi  on  cnnfliderinf^  this 
mauN  evidence,  are  worthy  of  your  sehous 
cotMJderaiion  ; — if  you  t»elfrve  hiui,  it  munt 
||ro  liarti  with  (he  prisoner ;  hut  if  you  sItouUl 
not  bt'liefv  bun,  I  whall  have  hopea  of  seeint^ 
the  prisoner  once  more  set  at  larsfe.  And  now, 
as  to  the  lelifra  inierc^pled  Hi  the  Postoffice ; 
undrr  the  fnvour  uf  the  <'ourt,  I  heuf  leave  to 
reoiMitmend  the  coosiderauon  of  their  not  ^oin^ 
to  the  place  directed  aa  the  writer  and  the 
tender  tutf>ndrd  and  de»ii^i»ed;— they  not  sjo- 
ing,.  aa  was  iiileuitefl  and  de»<it;oe(l^  the  lettei's 
cannot  be  an  overt  act; — if  they  hiid  gone  to 
the  places  directed  and  deMt^niHl  they  would 
indeed  have  i»^i*n  an  ovrri-aci :  but  that  ta  a 
eaxe  to  be  left  with  yon^  and  for  your  conaide- 
rmtion,  to  detrrmiue  finally  wlieilir-r  tliey  are 
an  overt  act|  or  not  an  overt  uot.  Hot  suppose, 
thai  yon  should  be  IcmI  to  believe,  that  tbey 
ivere  sent,  and  that  the  manner  of  iieuding 
ibeni  N  an  overt-act,  then  there  will  remain  for 
your  farther  consideration  in  behalf  of  the  pri- 
aoner  at  the  Imr,  the  subject  matter  of  the  let- 
ten:  and  what  is  the  subject-matter  of  the 
lelleraf  Why,  only  a  parcel  of  parai^ranhs 
ehietly  taken  from  the  public  daily  and  weekly 
|)a|>ers,  old<itale  news,  which  every  Inidy  knew, 
written  in  a  letter  to  the  priaoner^a  brother; 
mnti  this  i%  all  hi*  ilid  ;  nii«i  i^>t^  is  now  eodea- 
Toured  to  be  c.on>ttrue(l  '  lO  :  but,  jfeu* 

tleuiemaa  you  v%iU  h^i*  -ri  laid  before 

you,  I  dare  Buy,  you  will  he  aide  In  form  a 
ri^ht  judgment  from  tlience ;  and  J  need  tint 
tell  you,  that  the  jury  may  Im  ineriMfiil  a;*  well 
as  ju«t,  according  as  things  shall  appear  to 
tbem. 

.^         *  "  '  for  the  Prwynrr.   I  liripe  the 

C'  me  with  a  word  or  two  in  lie« 

huii  vi  rat  the  bar;  an«t   ''  •  'irn, 

the  m;k'  ihr  si^^eofth'  um 

have  lai^i  i iiitment  in  tbn  , .  St. 

Clement  Danes  tu  the  county  ul  Middlesex, 

VOU  XIX. 


A.B.  1768,  [1378 

wbea  the  o^emet  vraa  committed  in  London  ; 
every  body  knows,  that  the  Fofil-nflice  ia  to 
London,  ifi  Lombard -street,  in  the  very  hea  ' 
of  the  city,  and   that  the  letters    were  inters  J 
cepled  in  iLoudon  at  ibe  Pi»!»t  offii  e. — Wiiere*! 
fote,  i^entlemeo,  as  tbiw  is  an  error  in  the  pro*] 
oeediw:;s;  a  fiitMhimenlal  error  in  the  proceed* J 
inffs,  tlii!)  cantse  between  the  crown   and    lli«l 
prisoner  at  the  bar  ouj^bt  to  cettse  now,  ntnl  tliAl 
prisoner  be  accjuitteil.     One  wnnl  luore^  tjenlle 
inen»  and  I  shall  not  farther  tr*mble  you,  in  r&-| 
btion  to  the  auliject  mutter  of  the  letters,  [ 
pLTS  and  writio4fs  read  in  court,  1  *ery  care- 
fully attended  to  the  readinj;  uf  every  one  of 
them,  and  I  could  m»t  perceive  that  there  \vaag 
ht*  much   as  one  iieasonahlc  expresviou  coa«| 
lained    in    tlie    tweniy-niiie  letters.       Is    tbol 
Inuuchinif  of  a  ship,  hijtrli-trentcon  ?  If  the  eii»«  j 
barking  of  the  duke  n|  CumlierUiud  ai8tiidf,l 
lifter  be  had   crnsse*!  the  VVeser,  treason  ?-^ I 
Mr.  i'ilt  iind  Mr.  Ix*|rge  are  re-instated  in  llj©^ 
fniniKtry  ; — the   t  emmon    people   of    Enj^^laud 
t^rumble  at  the  great  weight  and   number  of 
taxes:— at  the  scarcity  and  dcarness  of  com; 
— and,  above  all,  at  the  |o*8  of  Minorca,  and 
that  the  commiiudeis  of  their  fl>'etj(  iind  squa- 
ilrous  do  not  do  their  duty,  and  fight  and  <le* 
slroy  Ibe  French.      Who' can  call  these  lra«,«| 
sons?  Who  CAU  say,  ibnt  a  bare  and  Dakedl 
recitation  of  these   matters  of  fact,  is   bigli* 
treason  P  And  this  is  all  that  has  been  done,  ail 
you  will  see,  gentlemen,   when  you  come  tol 
tead  and  consider  the  subject  of  these  letters  ami  I 
paperif  apart  by  yourselves  ;  for  you  only  ur«| 
the  prftper  judges  whether  the  subject  of  thai 
letters  is  trtasonable  or  nut. 

Sot,  Gen,  for  Crown.*  i  hope,  my  lord,  ytitl] 
will  favour  me  a  little  while,  thai  i  may  replj 
to  t^o  or  three  objections,  which   hAve  beea 
flmig  out  by  the  counsel  in  the  pri!ionei'*s  de 
ft' I  ice.     It  has  been  said,  by  my  br  other  here,] 
that  the  evidence  we  have  brought  before  tba 
Court  and  the  jury  is  not  a  <:re*iible  eTiilenre^' 
nor  ati  evidence  to  be  rehed  on  ;  my  b»rtl,  [ 
liave  been  many  years  in  this  court,  and  I  do 
nut  retuetnber  ever  to  have  heard  a  charge  of 
high  treason  belter,  loore  strongly i  or  titi»re 
consisteDtly  made  out;  and  uhat  is  morere«i 
markable  and  observable  every  one  of  the  wit<! 
oenes  brought  on  the  side  of  the  crown,  ai^ 
persons  of  character,  reputation  nud  creili1)i« 
lily ;  and  they  all  together  t^-ll  a  very  prnb-dilej 
consistent   and  crc*ldde  story  ;  as   first,  tbej 
have  proved  uudenialdy  that  the  lettf'r^.  pTiperil 
atid  writings  now  read  in  court  Mere  in  ibe 
pojk8ti;«>ion  c»f  the  prisiimer  at  the  bar  ;  aecondlVi 
that  most  or  many  of  thim  arc  the  hind-wriu^ 
ing  of  the  pritoner  at  the  hor ;  that  be  the  pri« 
son«r  it\  til*'  liiir  did  send  divert  tetters  lo  ihi 
ii'^L-nt'*,    nilirt  [«i   atid    snhjects  of    L*»uis    tb4 
French  king,  lu  order  lo  inform  the  enemiea  til 

•  As  to  the  rit'bt  to  a  reply  oti  the  part  af 
the  crown,  though  no  witncM  have  Itef  n  caKeflJ 
in  delencri  Kc  tbc  case  of  Mr.  Hur&ei  4,  9*' 
1777. 

4  T 


13SI] 


Addenda  to  the  Caset  of  WiUcet. 


A.  D,  1769—1770. 


[IS8S 


court  to  h€  the  ftry  satue  fts  ihoae  taken  out  of 
1b«  piitODer's  biireain  Ar  to  the  ohjection  re- 
Ifttitig  to  the  properly  of  the  bureau,  that  is 
iriflioi,'  ;  tipcau^e  it  plainly  appears,  that  Mrs. 
Blount,  tht!  landlady  of  the  house  iu  whicii  tiie 
prisoner  lodged,  let  Dr.  Henaey  a  parlour  even 
with  the  street  ready  furnished,  having  in  it  a 


biireau,  a  l^lafi, — ^The  remainder  qflhit  IVkl 
ij  miuingJ] 

It  appears  thai  aAer  befng*  repeatedly  rei- 
pitedfiliecoiificlreceiTed  Ills  m»je«iy'a  pardon. 
8ee  Geotleroao's  Magajcine  for  Sepu  lfd9« 
p.  4dS, 


ADDENDA 

TO  THE  NINETEENTH  VOLUME- 

|3r  /  tiw5  prevenUdt  btf  an  AcciderU^/rom  imeriing  in  their  proper  Places  the/olicfm* 
ing  Articles  relative  to  the  Wttkes,  Causes, 


THE  pro)c«cution  of  Wilkes  ooeasioned  di- 
rectly and  caosef|U€ntiiillyj  during  a  8erie«  of 
veirs*  various  proceedinf^s  in  the  two  Houses  of 
l^arfjament ;  for  iiccoonu  ol  which,  I  must  re- 
fer the  reader  to  vob*  15  aod  16  of  the  New 
Pari.  Hi*»t.  and  to  the  Journalf.  The  *  Ess^ay  on 
Woman/  addressed  h*  a  celebrated  courte- 
Ban  of  the  time,  is  a  parody  of  passages  iu 
Pope's  Etsiiy  on  Man,  accompanied  with 
DOiea  bearitig  the  namei  of  8mne  arch- 
Mabop  of  Armairh»  Warburton  bishop  of  Glo- 
cetter,  aod  others.  It  in  a  compositioQ  at  once 
detealable  for  the  wickedness  of  its  design, 
and  detpicohle  for  the  mrunneaa  of  its  execu- 
tion i  a  wretched  cumhi'uuj^  spi^cimen  of  that 
perverte  jesting,  «  hicb,  Jnl»n*cm  lelU  us,  **  a 
goo4l  man  dreads  for  its  profanenesSf  and  a 
witty  man  di^laius  for  its  easiness  »m\  vulga- 
rity ;"  a  coarse  clumsy  tissue  of  diagustfiil 
obscenity  and  horrible  hlasphrmy,  auch  as 
tni^ht  without  difBcnlty  be  conatrurted  hy  a1 
most  anv  dunce,  i^hn  had  previously  disen- 
ga|;rfd  bmiielf  iVmn  all  regard  to  decency  and 
morahiy,  nil  sense  of  ihame^  and  all  reference 
for  religion.  « 

This  composition,  st  being  a  breach  of 
privtlrget  was  deU(»uDced  to  the  indit^nstion  of 
tbe  House  of  Lorda  by  the  earl  of  Sandwich. 
In  the  New  Pari  Hist.  vol.  15,  pp,  1346 
€l  itq.  are  collected  aeverul  particulars  rrUtive 
to  Ibit  proceeding  ;  from  some  confu>«rd  notion 
of  which,  1  Ci»iijerture,  it  was,  that  Toltaire, 
with  his  usnsl  negligence  of  truth,  took  on 
him  (Dictionnstre  Hiilosophique.  tirt.  Dieu)to 
write  of  Warburifin,  as  one  **  qui  vtole  les  lois 
de  la  s<Ki^i6,  eu  miinlfestsnt  lespipier^  secrets 
d'uu  rot'oibre  du  ^mrlt^meot  pour  le  perdre/* 

Coush)4'ringihefeeUiii{B  winrh  ihe  kui|£*sml> 
nimmi  eiprei*»ed  coocrming  Wdkev's  pohiica) 
libel,  and  tbe  ler meut  which  it  cotitiiiued  to 
excite  in  the  nation .  at  the  tifi>e  when  sir  Jsme* 
Burrow  published  his  report  of  U  itkeii*s  Cage, 
Wt  cannot,  I  think,  blauif  him  for  avbirHog  to 
CODlrtbute  to  the  diiotemiuuhon  of  the  offcnstre 
numliertff  the  North  Briton  h\  in  the 

report   tbe    fnformaliou   Hbi<  '  a  filed 

i^lpaiDal   Wilkea  for  that  publHMiuuK     Iti  the 
pm^tot  dtjr  no  fc«9oiij  I  apprebtttUj  eiitte  for 


Buppresving  that  docufnetit,  which  therefore  I 
iosert  below  fmm  the  Commons*  Journal,  ?3d 
Noveralier,  176ii*  Tlit-  consideration  of  tha 
libel,  as  the  cau¥»e  of  most  extensile  and  long 
continued  national  disorder,  approaching  very 
nearly  to  anarchy,  atid  the  conlemptalioo  of 
what  effect  probably  would  he  produced  by 
such  a  puMicalioti  at  the  preseol  time,  may 
lead  to  no  incurious  apeculattoo. 

Pleas,  before  our  Li*rd  the  King  al  Weatmin- 
sler,  of  the  Term  of  Hnini  Hilary,  iu  th« 
Fourth  Yearof  the  tietgu  of  our  Sovereign 
Lord  fJeorge  iht?  Third,  by  the  Grace  of 
CoiJ  ofOn-at  Bnttim,  France,  sod  IriUnd, 
King,  DetVodtM'  id'  the  Fiuth,  and  in  the 
Year  of  our  l^rd  1764. 
Amongst  the  Pleas  of  the  King.     Roll  2. 

Amongst  tbe  Informatioasof  laat  Term,  N°  7>« 

Be  it  remembered,  That  sir  Fletcher  Norton, 
koif^ht,  late  soliritor,  but  now  attorney -gene- 
ral, of  our  pri'KiMit  sovereign  lord  the  king,  wha 
prosecutet  fur  our  naid  lord  the  kin^:^  in  thi«  be- 
hslf,  came  in  his  prosier 'person  into  the  court 
of  our  said  lonl  the  king*  uefore  the  king  him* 
self  at  WeKt minster,  on  NAti»rtt|^  next  alter 
Aflefn  day^  from  the  d»y  of  Saint  Msrtin  last 
peat ;  and  for  our  said  lord  ttie  king,  brouirlit 
mio  the  court  of  our  s-id  lord  the  king,  l;elore 
the  king  hin»setf  then  there,  a  certain  informs* 
tion  ugauiat  Jolui  Wilkes,  late  nf  the  |tftrisK  of 
'  n  the  liberty  of  Weal* 
of  MiddletTex,  e«9utre, 
•  .ii...uon  fothweth  in  these 
words;  (that  ia  tOMi^)  Middlcttjr.  lie  it  re* 
memhered.  That  sir  Fletcher  Norton,  kniti^ht, 
s«dicttor  gt  neral  of  our  present  ioverrign  lord 
the  king,  who  prosecutes  in  tliis  behalf  tor  our 
said  lord  the  king,  cometb  here,  in  his  prop« 
person,  into  the  court  of  ourtaid  lord  the  king, 
before  tbe  king  himself  at  Westminster,  ua 
Saturday  next  after  fitieeii  dayt^  from  the  day 
of  Sttun  Martin,  in  this  present  term;  and,  for 
our  saiti  sovereigu  lord  the  kmg,  grv*  tb  the 
court  bere  further  to  understand,  and  b«-  in- 
fonncd,  That  bdore  tbe  printiog  aud  pubtiib- 


HuV 

"  ^}-.' 

iiiii 

uIm, 

•  i              <•*»!. i 

1S83]         4^10  GEORGE  UL 

hatg  tit'  the  BeditknM  and  icaDdalout  libel,  herein 
after  mentioned  ;  (that  is  to  say),  ou  Tuesday 
the  nineteenth  day  of  April,  in  the  third  year  of 
the  reign  of  our  sovereign  lord  George  the 
third,  now  king  of  Great  Britain,  France  and 
^laod,.  defender  of  the  faith,  and  so  forth,  our 
said  present  sovereign  lord  the  king  did  make, 
and  deliver,  a  most  gracious  Speech  from  his 
throne  to  the  lyirds  spiritual  and  temporal,  and 
the  Commons*  of  Great  Britain,  then  in  parlia- 
ment assembled ;  which  Speech  of  our  said 
lord  the  king  was  to  the  purport  or  effect  fof- 
lowing ;  (that  is  to  say),  **  My  lords,  and  gentle- 
men, I  cannot  put  an  end  to  this  session  of  par- 
liament, without  expressing  my  thanks  for  the 
signal  zeal  and  dispatch  which  you  have  mani- 
fested in  your  proceedings,  and  which  make  it 
unnecessary  fur  me  to  continue  it  any  longer. 
I  informed  you  at  your  first  meeting,  that  pre- 
liminary articles  were  signed  by  my  minister, 
and  those  of  France  and  Spain.  1  ordered 
them  to  he  luid  before  you :  and  the  satisfaction 
which  I  felt  at  the  approaching  re-establish- 
ment of  peace,  upon  conditions  so  honourable 
to  my  rruwn,  and  so  beneficial  to  m^  people, 
was  highly  increased  by  my  receivmg  from 
both  houses  of  parliament,  the  strongest  and 
most  grateful  expressions  of  their  entire  an- 

firobation.  These  articles  have  been  estab- 
ished,  aud  even  rendered  still  more  advan- 
tageous to  my  subjects  by  the  definitive  treaty  ; 
and  my  expectations  have  been  fully  answered, 
by  the  happy  effects  which  the  several  allies  of 
my  crown  have  derived  from  this  salutary 
measure.  The  powers  at  war  with  my  good 
brother  the  king  of  Prussia,  have  been  mduced 
t6  agree  to  such  terms  of  accommo<lation,  as 
that  great  prince  has  approved ;  and  the  suc- 
cess which  has  attended  my  negotiation  has 
necessarily,  and  immediately,  diffused  the 
blessiiurs  (»f  peace  through  every  part  of  Eu- 
rope. I  acquainted  you  vtilh  my  firm  resolu- 
tion, to  f'urm  my  government  on  a  plan  of  strict 
oeconomy.  The  reductions  necessary  for  this 
purpose,  shall  be  completed  with  all  possible 
expedition  :  and  although  the  army  mamtained 
in  these  kingdoms  will  be  inferior  in  number  to 
that  Ubually  kept  up  in  former  times  of  peace, 
yet  1  trust  that  the  force  proposed,  with  the 
establiiihment  of  the  national  militia,  (whose 
services  1  have  experienced,  and  cannot  too 
much  commend)  i^ill  prove  a  sufiicient  secu- 
rity for  the  future.  Gentlemen  of  the  House 
of  Commons,  1  have  seen,  with  the  highest 
concern,  the  great  anticipations  of  the  revenue, 
and  the  heavy  debts  unprovided  for,  during  the 
late  war,  which  have  reduced  you  to  the  un- 
happy necessity  of  imposing  further  burthens 
on  my  people.  Under  these  circumstances,  it 
is  my  earnest  wish  to  contribute  by  every  means 
to  their  relief:  the  utmost  frugality  shall  be 
observed  in  the  disposition  of  the  supplies 
which  you  have  granted ;  and  when  the  ac- 
counts of  the  money,  arising  from  the  sale  of 
•uch  prizes  as  are  vested  in  the  crown,  shall  be 
closed,  it  is  my  intention  to  direct,  that  the  pro- 
duce shall  be  applied  to  the  publio  senrice. 


Addenda  to  the  Cases 


[ISS'I 


My  lords,  and  gentlemen,  the  exicneies  of  tbs 
commerce  of  my  subjects ;  the  improvemem 
of  the  advantages  we  have  obtained ;  and  tbe 
increase  of  the  public  re%enue,  are  the  proper 
works  of  peace.  To  these  important  aud  n^ 
oessary  objects  my  attention  shall  be  directed. 
I  depend  upon  your  constant  care  to  pronNHe, 
in  yoQr  several  counties,  that  spirit  of  concord, 
and  that  obedience  to  law,  which  is  essential  to 
good  order,  and  to  the  happiness  of  my  faithfol 
subjects.  It  is  your  part  to  discourage  every 
attempt  of  a  contrary  tendency  ;  it  shall  m 
mine,  firmly  to  maintain  the  honour  of  my 
crown,  and  to  protect  the  rights  of  my  people." 
And  the  said  solicitor  genend  of  our  said  sove- 
reign lord  the  present  king,  doth  further,  for 
our  said  lord  the  king,  ghe  the  Court  here 
to  understand  and  be  informed.  That  John 
Wilkes,  late  of  the  parish  of  Saint  Margaret, 
within  the  liberty  of  Westminster,  in  the  coonty 
of  Middlesex,  esq.  most  audaciously,  wickedly, 
and  seditiously,  devising  and  intending  to  vili^ 
and  traduce  our  said  present  sovereign  lord  the 
king,  and  his  government  of  this  realm,  to  im- 
peach and  disparage  his  veracity  and  honour, 
and  to  represent,  and  cause  it  to  be  betiefsd 
amongst  his  majesty's  subjects,  that  bis  afore- 
said most  gracious  Speech  contained  falsities 
and  gross  impositions  upon  the  public ;  and 
that  our  said  loni  the  king  had  suffered  the  ho- 
nour of  his  crown  to  be  sunk,  debased,  and 
prostituted,  and  has  given  his  name  and  ssnc- 
tion  to  the  most  odious  measures  of  govera- 
ipent ;  and  also  most  wickedly,  unlawfully^ 
and  aeditiously,  devising,  intending,  aud  endea- 
vouring, as  far  as  in  him  the  said  John  Wilkei 
lay,  to  excite  disobedience  and  insurrections 
amongst  the  subjects  of  this  realm,  and  to  vio- 
late and  disturb  the  pnblic  tranquillity,  grood 
order,  and  peace  of  this  kingdom ;  afker  the 
making  and  delivery  of  the  aforesaid  speech  of 
our  sdid  lord  the  km;;:,  (that  is  to  say;,  on  the 
second  day  nf  August,  in  the  said  third  year  of 
the  reign  of  our  lord  the  present  king,  at' West- 
minster aforesaid,  in  the  said  «^ounly  of  Middle- 
sex, unlawfully,  v^ickedly,  sediiiuu'sly,  and  ma- 
liciously published,  acid  caused  to  he  printed 
and  published,  a  certain  malignant,  seditious 
and  scandahms  book  and  lil>el,  intituled,  Tlie 
North  Briton  ;  in  one  part  whereof,  intituled, 
N'  45,  Saturday,  April  23rd,  17C3,  were  theu 
and  there  contained  (amongst  other  things] 
concerning  our  said  lord  the  king,  and  fiis 
aforesaid  most  gracious  Speech,  and  his  mea- 
sures of  government,  and  also  concerning  a 
certain  act  of  parliament  then  lately  made,  is- 
tituled.  An  Act  for  granting  to  bis  majesty 
several  additional  duties  u(K)n  wines  im|)oiir<l 
into  this  kingdom,  and  certain  duties  u\wn  all 
cyder  aud  |>erry ;  and  for  raising  the  sum  of 
three  millions  dwe  hundred  thousand  pounds,  hy 
way  of  annuities  and  lotteriea,  to  be  charged  ua 
the  said  duties ;  divers  malicious,  seditious,  aid 
scandalous  matters,  (that  is  to  say)  in  one  part 
thereof  to  the  tenor  and  effect  fellowing ;  It 
wit,  •<  Tbe  king's  Speech  has  always  Wa 
coosidtfed  by  tlM  kgiilatura^  aadb/ tticp^fii 


1585J 


tMcerning  Mr,  IVUhes. 


A.  D.  1,763—1770. 


i\m 


il 


ml  tarj^e,  M  ihes|M?ecb  of  the  miiiister.  Il  hai 
rvff uiarly,  al  lUe  begrntiing  of  everv  seisioii  uf 
INuKarocui,  bc^'o  rtrl'erreil  lijr  tkollt  MouEtefi  io 
the  coii^tiJeraiion  ut'  a  cominiliee,  and  has  l>e<eji 
geiieraUy  cftnviissetl  will*  the  utmost  freedom, 
when  the  rnitii^ter  of  Uie  cixiwri  h^H  been  ob- 
noxiuus  to  the  rmtion.  The  minWlerg  of  v\^vn 
free  couutry^  conscious  of  the  iindouhted  pri- 
vdeg ea  of  so  spirited  a  ueojite,  and  \vith  tlie 
terrarn  of  fiirliJimeui  bftbte  their  eyes^  h«ive 
«vi  '  "  r-  r  1-  ■  '  ~  with  redttrd  to  the 
HI  loijs,  of  tpeeches, 

Hii.*. '  >  .Mt..  »  .v..,,.  ,..^.  sorerei^u  to  mttke 

from  the  I h rone,  at  the  ojieniit^^  i>l  each  »e8^ 
sion  ;  tbey  ^v\\  knew  tUnl  (lu  honest  House  of 
Pirhmnent,  true  to  their  trust,  could  not  fait 
ta  detect  the  ftllaoiout  arts,  or  to  remoofttrate 
Against  the  d;iriDg  acl9  of  vinleueei  cotnmitted 
by  ariy^minister.      The  speech  at  tlie  dote  of 
lue  se^stoti   has  ever  been  considered  as  the 
moat  accore  method  of  promulgating  the  fa* 
vonrite  couii  creed  among  the  Tutj^ar  ;  Wcause 
the  pAvliameui,    which    i»    the  coniittiutjunal 
I^U'^riitiiii  of  the  liberties  of  the  people,  has  lu 
this  cave  no  opportunity  of  remoQiiraLin(f,  or 
of   im|*e;ichio}^   any    wicked    sen'aiit  of   the 
crown.     Tljis  week  has  given  the  puMic  the 
muni    HliMudoQed    instance  of    ministeriaJ   ef- 
frontery ever  nUcmptrd  to  be  impo«ied  oo  mesi- 
kind.     The  minister's  8|>eech  of  lust  Tuea*Uy," 
mcAniiti^  the  aforesaid  Spfech  of  our  said  lord 
the  kioii^,  which  was  made  and  delivered  by 
bis  majrsty  on  Tuesday  the   19Ui  day  of  April 
aforenaidi  beini^  llie  Tuesdiiy  next  preceding 
the  93d  dkiy  of  April,  io  the  said  year  of  our 
Lord  1763,  '*  is  not  to  be  paralleled  in  the  on- 
naU  of  this  country,     lam  in  doubt,  whether 
the  imp«niiiion  is  i;reater  on  the  i^orefviifn,  or 
on  the  nation.     Every  friend  of  his   » 
must  lament  thut  a   prince  of  so  nnm 
and  amiable  cjnHhtifs/*  meaning;  our  ham  tnru 
tht*  kin|(,  ^*  whom  England  truly  revi>rea.  csn 
be  brouiiht  tt»  g;ite  the  r>anctioo  of  his  ssit'it*d 
name  to  the  most  odious  mf  asnres^  and  tu  the 
most  unjostitiahte  public  declarati^^iKt  Irom  a 
throne  eicr  renowned  for  trutb^  litjuijur,  and 
unsnllie<l  virtue.      I  am  nure  all  fortiifners,  es- 
pecially I  he  kinif  of  f'rus'iia.  will  hold  the  mi* 
nisler  in  contempt  and  ablMtrreric«      He  hss 
tnaileour  itorerFt^n  declare,  *  My  f'Xpi'cttiiions 
hftvebeen  fully  answered,  by  ih«r  bajjpy  rMecift 
which  Ibe  several  slliev  of  my  crown  have  de- 
rived from  tbifi  saJutary   m*-a»ure  o|   the  de- 
finitive  tjeaiy  {  the  powera  at   war   with   my 
good  brothifr  the  kinif  <»r  Pru^Mji,  have  bi^a 
iu(hjc«  il  u*  in»Te*r  fi»  surh  terms  of  iiccomnuKU- 
tion,  as  thiit  great  luince  hitn  .«pj»rovrd;  and 
the  success  winch  liasnMf'»>'l<  •>  iml  «,......<  .jmui, 

ban  neceariHarily  and  ii>  In* 

blciaini^a  of  p^aer  throi.^  i,    ^  1,^. 

rope.'  The  infamuns  tallacy  ot  ihjs  whole 
Mfnieuce  is  apparent  tn  all  mankind;  for  it  ia 
koowu*  thai  llie  kmtf  or  l'ru>i»ia  did  not  hurely 
«pprovfTf  hut  shsttluii'ly  ihctared,  sm  oHMpieror, 
«t'ery  article  ot  the  t^^rms  of  |»»*sr#-/*  And  m 
inoli^rpart  tli«'reof,  to  tlie  tenor  snd  efTn:!  to|. 
loiviug ;  (that  ui  io  uy,)  *'  Th«  prelimijiary 


tirticU^  of 'peace  were  iucb  ns  have  drawn  ih^i 
contempt  of  mankind  on  our  wretched  ne|^(»«v| 
ciator^\  Alt  our  mo^t  valuable  conquests  werf  J 
acfrtrd  to  be  ifhtored,  and  the  East  India  com^J 
pany  \%ould  have  been  infallrbly  mined  hy  %\ 
sinj^te  article  of  this  fsillacions  and  baneful  oe^  J 
gocialion.  No  bireliu^  of  the  minii^ier  luf  ] 
been  hanly  enough  to  dispute  this;  yei  Ili^J 
minister  hill  1  '  s  made  our  fiovcreii^n  de'^l 
dare  the   -  ^  whieh  he  ftit  iiltlieap-^J 

p     Hi  '    I  -  tmientof  peace,  upon  coii^l 

<  I   to  h(scrot«ni  and  so  be 

hv.^.  «..i  .M  ;pi»  |M^.,r«r.  As  to  the  iniire  sppro^l 
biition  of  parliament,  which  is  so  vuntji] 
boaited  of,  the  world  knows  how  that  was  ubffl 
tained.''  And  in  another  part  thereof,  to  Ut^l 
tenor  and  effeci  foUowinjj ;  (that  is  to  ^yiW 
•*  The  minister  cannot  forbear,  even  in  thtj 
j  kini{*s  Speech,"  meanintr  in  the  aforesaid  speedi  I 
ul  oUTSHid  lord  ibe  kini?^  ^*  insuUini^  n«  witl| 
a  dull  repetition  of  the  word  »CECouomy.'  I  di4  I 
not  expect  so  soon  to  have  seen  that  word  ai^aiii|J 
aHer  it  bad  been  so  lately  exploded,  and  morf  I 
than  once,  by  a  most  numerous  audienco^j 
hiuted  otf  the  slaj^e  of  our  English  lbealreC4| 
It  is  hehl  in  deii^iion  by  ibe  voice  of  the  people^  I 
and  every  tongue  loudly  prochiimn  the  unir] 
versal  cimlempi  in  which  these  empty  profefl*  | 
aloQs"  meanini^  the  professions  of  our  f^aid  lord  I 
the  king,  in  his8pc?ich  aforesaid,  mih  re>.pec|l 
to  cBconnmy,  **  are  held  by  this  nation*  Le|| 
the  public  be  tnlnrmed  of  a  single  instance  i 
oeeonomy,**  me.min);  in  the  conduct  of  hrs  said] 
majesty's  If nvernment  of  this  realm,  **exce||>|1 
indeed  in  the  hou>«!iohl/*  And  in  i^nother  pari] 
I  tliereof,  accordinif  to  the  tenor  and  « tfed  foUf 
!  lowinir;  (thill  is  to  say,)  *'  In  vain  will  such  %\ 
minister,  or  the  foul  dret^s  of  his  piiwir,  thf  I 
hKds  of  corruption  and  dt         '  \\\  um\ 

in  the  speech/*  n)eanio|^  i'  '^'ecQ  \ 

uf  our  said  loi-d  the  kint;,  "  u»,i»  o|--,,,  ,,i   con<»  i 
cord,  and  that  obeilience  to  the  Uws,  ^hich  j#  j 
eiiscnlial   Io  jrood   ord^-t ;  ihev  have  sent  th#  1 
spirit  of  diHCoid  ihiou^lk  the  land,  ami  1    wilij 
projihecy,  that  it  lull  never  he  ea^iin^oishedli^ 
,  but  by  lh<*  txtinctioii  of  thetr|H>Wir>     1^  tht  ] 
I  spirit  of  concord  to  |fo  hand  in  hand  with  th«  i 
I  peace  and  excise  ilnouuh  this  naiiuo  ?   ts  il  t(|  1 
be  expected  iN'tMcen  an  inNoleiil  exciseman  aotl  J 
a  peer,|feiillemiin,  freeholder,  or  farmer^  whoi^  | 
'  private  hou**es  sre  now   niia<le   hahl*  to  be  eoir  j 
I  lereil  and  S4  arehed  at   pleasure?    (jhucester<f  . 
I  kliir«»,    Herefmd^hire,    anil   in  {general    all   lh9  j 
I  cyder  conntieft^  ure  not  sur*  '  '  \  t'lal  Couqp^  I 

I  lirs  V  hicb  are  ulliided  m  ti  ^t/*  mean^  I 

in;;  Hlill  the  siiid  sfK'ech  oi  imi  >iim1  lord  lt>#  I 
<  kiiiif.  **Thc  ajiirit  of  c<*nC4ird  haib  nol  ifoof  ' 
forth  amontf  them  ;  hut  the  spirit  of  libarijl  | 
hsK,  aiitl  a  nobl*'  opposiiirni  han  been  f2;tvci|  19  j 
Itte  wu  L^tl  iii.iriiHii'>iK  ut  utifirrs^ion,'*  roeiiit| 
I  iiig^  tl  s  ed  in  the  eita^ 

cutn»i)  _  irh»meiii.     '*  A  j 

tuition  SM  seoMiiite  a«»  itir  KoifUiih    will  see  thl^4i|| 
a  spirit  of  rof.rord,    w  lieti  they  are  opprtai 
metinsa  tu  ^>otn  to  iojiiry,  and  that  § 

spirit  of  U,  u(  then  to  ari»'>  and  1  ant 

iure  ever  tsJl,  m  ^uroportioo  to  th«  laetght  of 


i.«r 


I-Sr^SUlE  TTL 


SI  ste 


'IS! 


<iM  liiiqjsVMi   «t  m^i  -Jt^  i0m0mr  if  'tut 


Miuir.(in^  M  dM  VHwir  toiC  «fcsr  iEt«|iWji^: 

fh«!  ftr«  iM^«4fenM  ^  *fc«  <9Mnirf  ;  int  ji  al- 
ffimM  vf  MrtP  vite  4ut  «^Mfl«  •vMiv*  iu'Vtfr. 
||<  j«  WIMP4W.  fxyin<itiiit  5ir  *3w»  '(q«»  •««»- 

■MtAT*,  k^    ^'in'tt'?  *^k  '^  "w^vi^ti  4/  tin 

yvxnwMUt  f4  iKvi  r«kHi :  r^  tSi^  t'Vm  'f  i«mp- 
»«<»«»>  ^  Ok^  pniy .«  f^4^^.  f  Vk4  vil^.  «arf  ^ta- 

Mi4  «rt^<rri»«^  V04  dM  ^itwnu  lu*^.  bin  ttfm^ 

4f  Mir  «ti4  UH  Um  luftff  AtAk  fvrtlMr,  ^  ^mt 
«m4  )mA  tW«  kNKT*  Jtr***^  t'^  Own  Mr*  to 

hA»n  H  r!kiw  «^«<k  mMI  uyfv»M4f  j,  wt#fcH  r, 

f,«'iM?  it  r/#  b*  f(*:r^.f%']y  \t*:\t0"%*ii  »fnoft{^t  lh#? 
%u\t^iA%t^  ihii  r^-^lm,  tti4t  or;r  «m4  lord  the 
lriri((  k««l  tnff^H  fh«  h'/n^/tir  ttf  h,%  rrumn  %n 

h«m»,  .ri  'rr'Ur  to  ffii«  »  Mrk^iMj  lo  tli^  mfM 
•tA'.'ftH  rn^«»ari»»  *n«1  (/»  X\%*'  m'Mt  ijrij«iYtifi«blif 
•l«'rUfali/in«  (r'rrn  Un  thrf^n^r.  And  »Im>.  in4%t 
wi/kAstflly  ari'l  tHitioutly  ifc-viMn((  an*!  inl^-nrJ- 
ing  t*9  Vxcil^,  amonifit  lli«  aulij*^*  of  this 
r*r«lmf  a  K*'n#Tal  HiacmUrit  tn4  diufTection  to 
If i«  rnaj«-«(>  'a  ffo? ^ranMnt,  and  ft  apirit  of  di^* 
ti^i^-Aiv.utM  Ut  tTi«;  Uwa  of  thia  realm,  and  mali- 
rioiialy  t/»  vtolntf^  and  di«lnrb  lh«  piiMic  p^aoe, 
%itfn\  onirr,  and  trftri«|iiillity  of  thla  kini^dom, 
affrr  lk#!  makiii|f  and  drhfirv  of  the  aforesaid 
H|irrf:h  of  our  aaid  loni  thr  kinif ;  (that  i*  lo 
aay,;  on  tin?  a^cood  day  of  Auf^iiat  aforeaaid,  in 
iUf  aaid  third  yrw  of  the  rnf(n  of  our  aaid  ao- 
?rrfi(fn  lord  the  pffarnt  kinff,  at  Wealn)iBater 
affirraaid,  in  the  aaid  cxmnty  of  Middica^x, 
unlawfully,  wirkeilly,  and  aeiliiioualy  pub- 
liatiedi  and  rauard  to  be  printed  and  pu'bltahed, 
ft  eertain  other  inali|piant,  aeditiotia,  and  aean- 
4altiM  libel,  inUiMUd  N*  ^,  Htlarday,  April 


WSm  iwii  ri   «  Ti 
-         -^^  d»  ti 

,  iK  2S«C  4ay  1^  1^.  -n 
L«rt  IT'l.l.  « ja  Mcv  »  santlcfiesc  Ji'±«f  i 

dkat  a  yniee  <tf  a  mm 

<imfir>i.'*  ii«auii^  nr 
fcife^.  •*  w*Mfli  EocaoiC  7117  r>v>«r*%. 
%rwi^t  ^1  f -MB  :^  aoeua  if  sa 
aikiw  M  th^  m^jm.  vSmm  a^aan.  aoii  u  'jm 
umm  vifufAnbt  yintic  ai''Tiiina«  fraa  1 
iJtnn^.  •-*•?  r^iiAvaest  5ir  Brvca.  hti—iqr.  utf 
««««  Teii  f  .rtM.*'  AjK  a  amch^r  Mr?  v  tk 
«kai  jmc  nuocmuBf  ZrnsL  U  Si<  vair  aoH  «#*s 
fiO^wis^ ;  ^as  •■  o  fay  -  Tue  ■ioiaer 
e:MWK  f^irWar.  e««n  t  lk  sjiq^'a  ?^p«K^.  .a- 
i*ft%a<^  «  wish  a  4aS  figitvuvi  ef  ta«  «vi 
'flKAcnoiy.'  f  i&f  artf  e:t vKt  ••  flnn«  M  k««« 
a^€«  lieu  v«^4  »riji.  afscr '3  9  »:  bc«a  ib  Ijctly 
etpMH,  an^  n^A^  cbaa  •^ee.  ^  a  ivhc  e«'- 
nwirait  vA'^jiy.  kcHed  ctf*  :S«  m^  of  «« 
'  EiiflpMi  th^tfttTM.     It  s  bdi  m  4'i^r4<-«  ^v  ike 

•  f4iee  'yf  tk«  peno>.  ar.«S  e^err  i:*^' je  ioadly 
'  pTKlaMEi  the  c^iveml  eo4&ev.p£.  a  «b.«b 
'  t':M«e  empty  (;r'7f*^:'Ar.  §  are  b^id  by  ib:s  u- 

tws.      I-rtihe  r«i»/>  "i^  i-,f  riTieti  •■?  a   »iijv€ 

ifMtaeot  of  <Ri&-.fyxiiT.  tic^f-t   ia«;«ir«l    15  i:.t 

botMhoirl.*'     KtA  -.'i  Vr.o'-:*r  pin  '■•f  lise   *i.  j 

latt  meoTiocc^  !:»>«',  to  t'^e  i*-oor  ind  effect  t'::- 

>fmn^.  ^tbat  U  fo  4a\.,  "  In  va's  «ii:  sach  a 

I  mintftrr,  or  the  foul  dreg^  '-f  bis  power,  ihe 

[  lA^  of  corruption  and  despr.ii^T,.  preac-i  up 

-  in  the  tpeech  tint  spirit  of  coccord.  acid  thit 

*  r»»>Hience  to  the  Ui««,  which  is  e^4«ut.4i  v> 
i  {(O'ld  order.    They  hate  tent  the  a^trit  of  tiis- 

CTjrd  thro«i;(h  the  laml,  and  I  nill  pro- 
phery,  that  it  will  nerer  be  extin|jrui^b€tj, 
but  by  the  extinction  af  their  power.  If 
the  apiht  of  concord  to  en  liand  in  h«cd 
with  tlie  peace  and  exci«  tfaroocb  tfa:s 
nation  ?  ia  it  to  be  expeded  between  an  inso- 
lent exciaeinan,  and  a  peer,  c^tleman,  free- 
bolder,  or  farmer,  whose  private  houfes  are 
now  made  liable  to  be  entered  ainl  aearcbed  at 
pleasure?  Glonceatershire,  Herefordkhire,  and 
in  general  all  the  cyder  countiei,  are  not  sure- 
Ir  the  several  counties  which  are  alloded  to  io 
the  Hppf^h,"  meaning  the  aforesaid  S|ieccb  of 
«inr  said  lord  the  king.  '*  Tbe  spirit  of  concord 
hath  not  gone  forth  among  them ;  but  tbt 
spirit  of  liberty  bas,  and  a  noble  opposition  baa 
been  giren  to  the  wicked  initrumeota  of  np- 
prenon.    A  nation  u  Rmlbk  m  Uw  EagWl 


1389] 


tonceming  Mr.  Wilkei* 


A.  D<  17«i— 177a 


[isyo 


will  fee  thit  A  ipirit  of  concnrtl,  when  ihey  are 
oppressetl,  memfi  a  lameaubmifisioij  lo  iiytiryi 
and  lliai  a  ipiiit  of  fiberty  oii|;ht  ibtn  to  arit^, 
and  I  urn  iure  «ver  will,  in  proporUon  to  tlie 
weight  of  the  grievance  ibey  feel.  Jivery 
Icft^af  atiempl,  <if  a  contrary  lendeitey  lo  I  lie 
tpirit  of  cnricordt  v^ill  be  deen^d  a  juslifiiUile 
resistance,  warranted  tiy  ilie  spirit  of  Ibe  En\£- 
lifb  cuiistitiition.  X  despotic  mini^tfT  witl  hi* 
mny%  t^ndeavnur  to  di&zi&le  bis  prince  wilb  big^b- 
flown  \t\vnn  of  tlie  prerofc;(i(i%e  and  booour  of 
the  crown,  wlijcU  ihp  minisiter  wilt  make  a|pa- 
lade  of  firmly  maiotkiriini^.  I  wish  us  much 
•a  any  nmn  in  ibe  kin|^domt  to  nee  ibe  bcmour 
of  ibe  i:ruwn^'  lueanintp  bis  said  majesty ^s 
crown  of  ihi»  re&lm,  **  miiinlained  in  a  manner 
Irufy  Ijecotntng  royalty,  1  lament  to  ^e  it 
funic  eri-fi  lo  iirosiitiiliun,'*  And  in  another 
part  of  the  taid  last  mentioned  liWU  to  the  te- 
nor and  effect  foUo*io(r ;  (ibat  is  to  say.)  ♦*  The 
Vn\%  of  Eof^land  is  only  the  tin^t  magislrate  of 
this  coontr)' ;  but  is  iove^ti'd  hy  hiw  frilh  tbe 
whole  cxeciiiift!  jviwer.  He  1*,  however,  re- 
flpi>ri!«^ibie  to  hiii  ]>roplt*  for  tbe  due  execution  of 
the  royal  tiioction^,  in  tbe  choice  of  miniaters, 
Ate,  t*i[im|lv  with  lb«*  mf aiiesl  of  his  subjects  in 
his  particutar  duty/*  To  tbe  great  scandal  and 
^aboMvof  our  said  lord  the  king^aud  his  grovem- 
ment  of  tins  realm;  in  contempt  of  his  aaid 
present  mMjeMiy  and  hit  lawa ;  to  the  evil  and 
dang^eroiis  example  of  all  olhers  in  the  tike 
case  ofTendin^^,  and  against  the  pence  of  our 
aaid  lord  the  kin^r,  his  orown  and  dignity. 
Wberrupon  the  «aid  aolicitor  general  of  our 
aaid  lord  the  king,  on  behalf  of  our  said  lord 
the  king,  prayeth  tbe  oonsideniUon  of  the 
Court  here  ution  the  premises  ;  and  that  due 
process  of  law  mny  oe  awarded  against  the 
aaid  John  VVilke«  to  compel  him  to  answer  to 
our  said  lord  the  king,  concerning  the  premisea 
aforesaid.  ^Vherefore  tbe  sbenlf  of  the  said 
county  of  Middlesex  was  commaiHled,  Ibal  he 
ahoubl  not  lorfiear  hy  reason  of  any  lilMirty  in 
bis  Ikai)i>«i4'k,  but  that  be  should  cause  him  to 
rome  t<)  aniwrr  to  our  aaid  loni  tbe  king, 
toncbing  and  concerning  the  premisea  aforesaid. 
And  now^  (thai  is  to  say,)  on  Monday  next  afler 
tbe  octave  of  Saint  Hilarv  in  this  same  term, 
bi^fore  our  said  lord  iUt  kfing,  at  Westminster, 
comeih  the  said  John  Wilkes  by  William 
111  .  '        !  and    having   beard  the 

asj  i;e  saith,  that  be  is  not 

guiii>  ^ri-»i".  ,  Mini  irireujion  be  putteth  him- 
aelf  iipctn  lite  country  ;  and  tbe  said  sir 
Fb  If  bcr  Norton,  u  Im,  t»r  ot.p  toid  lord  the  king 
in    this   behalf    i»  .    doib    ihe  like- 

Iherelore,  let  a  jorj  ,    n  c<»fiie  before  our 

laiil  liird  tbe  ktug,  at  Weximinsterf  on  Monday 
next  afier  tbe  oi^tave  of  tbe  Furitication  of  tlm 
Bletaed  Virgin  M^ry^  by  whom  the  truib  of 
the  matter  may  (x*  the  better  known,  and  who 
then  be  not  of  tbe  kindred  of  the  aaid  John 
Wilkes,  to  try,  upon  tbeiroath«  if  the  aaid  John 
'Wilkes  be  guilty  of  the  premitea  aforesaid,  or 
not ;  becatise,  as  well  tbe  aaid  sir  FUtcber 
Norton,  who,  for  our  aaid  lord  the  king*,  in  this 
l^ebalf  prutecutetb,  a»  ibt  aaid  John  Wilkca, 


bite  tberetipon  put  themselves  upon  Ibe  said 
jury  ;  the  same  ilay  is  given  as  well  to  the  said 
NT  Fletcher  Norton,  who,  for  our  said  lord  the 
king,  in  this  behalf  prusecutelb,  as  to  the  aaiil 
John  Wilkes  ;  on  which  day,  (to  wii,)on  Mon- 
day ncxtolUr  tbe  octave  ot  the  Purihcahon  of 
the  Blesse^t  Virgin  Morv  aforesaid,  before  our 
said  lord  the  king,  at  \Ve«tminster,  come  aa 
well  tlie  said  sir  Fletcher  Norton,  wbo^  for  our 
said  lord  tbe  king,  in  this  behalf  pronecfiteih, 
as  tbe  said  John  Wilkes  by  bis  attorney  afore> 
said.  Anil  Ibe  sheriff  of  the  said  county  of 
IMiddlesex  ri4unied  the  naroeaof  twelve  jurors^ 
none  of  whom  come  to  try  in  form  aforesaid; 
therefore,  tbe  sheriff  of  tbe  said  county  of 
Middlefiex  is  commandeit,  that  he  do  not  ^Qt- 
l>ear  by  reason  of  any  bberty  in  bis  bailiwick, 
hut  that  be  distrain  them  by  all  their  lands  and 
chalteU  in  bis  bailiwick,  so  that  neither  tbey, 
nor  any  one  for  them,  do  put  iheir  bands  to  thct 
same,  until  be  sbaLl  have  another  command 
from  our  said  lord  the  king,  for  that  purpose  ; 
and  that  he  answer  to  our  said  lord  the  king  for 
ibe  issufs  thrreol,  fo  that  be  may  have  their 
bodies  before  our  said  lord  tbe  king,  at  West- 
mmstrr,  on  Wednesday  next  after  fifteen  days 
from  the  feast  day  of  Easter,  or  before  t1i« 
right  trusty  and  well  beloved  of  our  said  lord 
the  king,  VVitliam  lord  Mans6eld,  chief  justice 
of  our  said  lord  the  kiog^  assigned  to  hold 
plejia  before  tbe  king  himself,  if  he  shall  come 
before  Ihat  time  ;  (that  is  to  aay ,)  on  Tuesday 
next  atl^r  the  end  of  tbe  term  at  Westminster, 
in  the  county  of  Middlesex,  in  the  great  bait 
of  pleas,  there,  according  to  the  (f^tm  of  the 
Eitatule  in  such  case  made  and  provided,  to  try 
upon  thifir  oath,  if  tbe  said  John  Wilkes  be 
guilty  of  the  premises  aforesaid,  or  not,  in  de- 
fault of  the  jurors  aforesaid^  who  came  not  to 
try  in  form  aforesaid ;  therefore,  let  the  sheriff 
ot  tbe  said  county  of  Middletex  have  tbe  liodiea 
oi  tbe  sanic  jurors,  accordingly  to  try  in  form 
albref  aid  \  the  same  day  is  given  aa  well  to 
the  said  sir  l^etcber  Norton,  who,  for  our  said 
Itinl  tbekinif,  in  ibis  behalf  pnisecuteth,  as  to 
llie  said  John  Wilkea;  on  which  day,  (to  wil,) 
OD  Wedttcaday  next  after  fifVeen  days  from  thfi 
(east  day  of  caster  aforesaid,  before  our  said 
lord  the  king,  at  WesUniuater,  come  aa  well 
the  liaiil  sir  Fletcher  Norton,  who,  for  our  said 
lord  the  king,  in  this  behalf  proseculetb,  as  tha 
said  John  Wilkea  by  his  attorney  aforesaid ^ 
iitid  the  aforesaid  chief  jiititice,  before  whoni 
the  hm\  jurors  came  to  try  ui  form  aforcMUd*  ' 
sent  here  bis  ^record  had  before  bira  in  tbeaa 
words ;  (that  is  to  say,)  AftL-rwards  on  tbe  dayi 
and  at  the  plac#  within  mentioned,  before  lb* 
witbio  named  William  lord  Matiatield,  chief  ' 
justice  of  OUT  Slid  lord  tbe  king,  assigited  to 
bold  pteaa  before  tbe  king  btmaelf»  John  Way, 
gentiotuaii,  being  associated  to  the  aaid  chief 
justice,  Bccofdti)^  to  tbe  form  of  the  statute  in 
such  case  made  and  providcNl,  come  aa  well 
ill  !   ri  named  sir   Fletcher  Norton,   who 

j<  u  for  our  aaid  lord  the  king  in  tbia 

he  hall,  UM  the  within  oamtd  John  Wilkes,  by 
hii  attoioey  s\  tibij)  iitflitiOfltd«    And  tbe  jur^t^ 


1391]         4—10  GEORGE  HI. 

of  the  jury  within   mentioned  bein(|f  caHed 
over  ;  (to  uit,)  Geonre  Cbardin,  Cbarie»  Bou- 
cher, Winthorp  Baldwin,  Edward  Lovibood, 
Peter  Le  Keux,  Lister  Selman,  John  Smart, 
George  Stevens,  Lynoel  Leads,  Hu^h  Roberts, 
George  Garret  and  Samuel  Hawkins,  eaqra. 
eoroe,  and  are  sworn  upon  the  said  jury ; 
whereupon  public  proclamation  is  made  here 
in   court  for  our  said  lord  the  king,  as  the 
custom  is,  that  if  there  he  any  one  who  will 
inform  tlie  aforesaid  chief  justice,  the  king's 
seijeant  at  law,  the  kind's  attorney  general, 
or   the  jurors   of  the  jury  aforesaici,    con- 
cerning   the    matters   within    contained,    he 
should  come  forth  and   he  should  be  heard. 
And  hereupon  the  within  named  sir  Fletcher 
Norton  offereth  himself,  on  the  behalf  of  our 
said  lord  the  kin^^todo  this;  whereupon  the 
Court  here  proceedeth  to  the  taking  of  the  in- 
quest aforef<aid,  by  the  jurors  aforesaid,  now 
here  appearing  for  the  purpose  aforesaid,  who 
being  chosen,  tried,  and  sworn  to  speak  the 
truth,  touching  and  concerning  the  matters 
within  contain^,  say  upon  their  oath,  that  the 
Md  John  Wilkes  is  guilty  of  the  premises  in 
the  infonnation  within  spedfied,  and  charged 
upon   him  in   manner  arid  form  as  in   and 
by  the  said    information    is  within    alledged 
against  him  ;    whereupon  all  and  singular  the 
premises  being  seen  and  fully  understood  by  the 
Court  here,  it  is  considered  and  adjudged  by 
the  said  Court  here,  that  he  the  aaid  John 
Wilkes  be  taken,  and  so  forth  :  therefore  the 
sheriflTof  Middlesex  is  commanded,  by  the  writ 
of  our  said  lord  the  king,  that  he  do  not  forbear 
by  reason  of  any  liberty  in  his  bailiwick,  but 
that  he  take  the  nid  John  Wilkes,  if  he  shall 
be  found  in  his  bailiwick,  and  him  safely  keep, 
so  that  he  may  have  his  body  before  our  sai(l 
lord  the  king,  at  Westminster,  on  Monday  next 
after  the  morrow  of  the  Ascension  of  our' Lord, 
to  satisfy  our  said  lord  the  king  fur  his  redemp- 
tion, on  account  of  the  trespasses,  contempts, 
and  misdemeanors  aforesaid,  whereof  he  is  im- 
peached as  aforesaid,  and  thereupon,  hy  a  jury 
of  the  country  taken  between  our  said  lord  the 
king  and  the  said  John  Wilkes,  he  is  convicted 
as  aforesaid.    On  which  said  Monday  next  af- 
ter the  morrow  of  the  Ascension  of  our  Lord, 
before  our  said  lord  the  king,  at  Westminster, 
the  hon.  Thomas  Harley,  and  Samuel  Turner, 
esq.  sheriff  of  the  county  of  Middlesex  afore- 
said, returned  the  said  writ  as  follows ;  (to  wit) 
*'  The  within- named  John  Wilkes  is  not  found 
in   iny  bailiwick.    The  answer  of  the  hon. 
Thomas  Harlev,  and  Samuel  Turner,  esq.  she- 
riff."   Tlierefore,  as  before,  the  sheriff  of  Mid-  j 
diesex  is  commanded,  that  he  do  not  forbear 
by  reason  of  any  liberty  in  his  bailiwick,  hut  ! 
that  he  take  the  said  John  Wilkes,  if  he  shall  ' 
be  fboml  in  his  bailiwick,  and  him  safely  keep,  i 
to  that  he  may  have  his  body  before  our  said  < 
Jord  the  king,  at  Westminster,  on  Friday  next  | 
after  the  morrow  of  the  Holy  Trinity,  to  satisfy  : 
oar  said  lord  the  king  fbr  his  redemption,  cm 
•ecount  of  the  trespasses,  contempts,  and  mis- 
ite^Manora  ttlbresiid,  whereof  he  is  impeached 


Addenda  to  the  Cases  [1392 

as  aforesaid,  and  thereupon,  b^  «  jury  of  ik 
country  taken  between  our  Mud  lord  the  kiof 
and  the  said  John  Wilkes,  he  »  convidrd  ii 
aforesaid.  On  which  said  Friday  next  afWr 
the  morrow  of  the  Holy  Triutty,  before  ear 
aaid  k)rd  the  king,  at  Westminster,  tlie  hot. 
Thomas  Harley,  and  Samuel  Turoer,  esq.  she- 
riff of  the  county  of  Middlesex  aforesaid,  re- 
turned the  said  last- mentioned  writ,  aafolkiwi; 
(to  wit)  <*The  within»nanied  John  Wilkea  is  aiC 
found  in  my  bailiwick.  The  answer  of  the 
hon.  Thomas  Harley,  and  Samuel  Turner,  o^ 
sheriff.*'  Whereupon,  bjf  another  writ  of  oar 
said  lord  the  king,  the  aaid  sherilTof  MiddleKi 
is  commanded  that  he  do  not  foHiear  by  reasn 
of  any  liberty  in  hu  bailiwick,  but  that  tie  take 
the  aaid  John  Wilkea,  if  he  shall  be  f»oDd  ii 
his  bailiwick,  and  him  safely  keep,  so  that  be 
may  have  his  body  before  our  said  lord  tke 
king  at  Westminster  on  Tuesday  next  afierik 
morrow  of  All-Souls,  to  satisfy  oar  said  lord  tk 
king  for  his  redemption,  on  account  of  tlie 
trespasses,  contempts,  aiMi  misdemeanori  m 
aforesaid,  whereof  he  is  impeaclied  asafbif- 
said,  and  thereupon,  by  a  jury  of  the  couatrj 
taken  between  our  said  lord  the  kinir  and  tit 
aaid  John  Wilkes,  he  is  convicted  as  aforesaid; 
and  if  he  cannot  find  the  said  John  Wilkes  ii 
his  bailiwick,  that  then  he  cause  public  pr»- 
clamation  to  be  made  in  the  open  county  coun 
in  his  county,  and  at  the  general  quarter  so- 
sions  of  the  peace  in  bis  county,  and  at  ibe 
door  of  the  parish  church  where  the  aaid  Jsbi 
Wilkes  is  an  inhabitant,  that  be  be  before  ssr 
said  lord  the  kiug  at  the  aforesaid  day,  to  sa- 
tisfy our  said  lord  the  king  concerning  tbepr^ 
mises  aforesaid ;  and  that  the  aaid  sheriff  tbes 
have  there  that  writ:  and  also  at  the  siaK 
time,  by  another  writ  of  our  said  lord  the  kiajr. 
the  sheriff  of  Middlesex  is  likewise  commsnii- 
ed,  that  he  cause  to  be  exacted  the  said  J'lho 
Wilkes  from  county  court  to  county  ci^urt,  uo- 
til  he  shall  be  outlawed,  according  to  the  lav 
and  custom  of  England,  if  he  shall  not  appeir; 
and  if  he  shall  appear,  that  then  he  take  bin, 
and  him  safely  keep,  so  that  he  may  have  \m 
body  before  our  said  lord  the  king,  at  West- 
minster, on  the  said  Tuesday  next  after  tlie 
morrow  of  All  Souls,  to  satisfy  our  said  Inni 
the  king  for  his  redemption,  on  account  of  the 
trespasses,  contempts,  and  misdemeanors  afore- 
said, whereof  he  is  impeached  as  aforesaid,  and 
thereu|K)n,  by  a  jury  of  the  country  taken  be- 
t««  pen  our  said  lord  the  king  and  the  said  Joiio 
Wilkes,  he  is  convicte<l  as  aforesaid.  On  wliicb 
said  Tuesday  next  after  the  morrow  of  Ail* 
Souls,  before  our  said  lord  the  king-,  at  West- 
minster, Thomas  Harris  and  Brass  Crosby, 
esqrs.  then  sheriff  of  Middlesex,  retonied  lbs 
aforesaid  writ  of  Capias  cum  IVodamatioae, 
executed  and  endorsed  as  tbilows  ;  (to  liiil 
*<  The  within-named  John  Wilkes  is  not  I'osi' 
within  my  bailiwick :  and,  by  virtue  of  ibii 
writ  to  me  directed,  I  have  cauaetl  public  |tf^ 
clamation  to  be  made,  io  maniier  and  for*  m 
I  am  within  commanded.  The  answer  of  tks 
boD.  ThooMi  Harley,  mi  SubmI  Tunwi^vf- 


ctmceming  Mr,  WSkes* 

ert£    Tbit  WriU  m  it  is  aliof  e  endorted,  wfts 

•livereil  to  me,  the  utiilrr-nuuii*<1  (irt!«enl  she" 

BT,  hy  ihe  atiove- named  Thomns  llarley  and 

iuiud  Tui'iii;t%  (h<^  Ule  sherilf.  ot  tho  lime  nt' 

Kuinsf  out  of  hia  office.     The  att<»irer  of 

boinaa  H Arris,  e*q.  ami   Brass  Cr<i»l)j,  faq, 

kcriH\"     And  on  the  «a me  Tuesday  next  after 

I  morrow  of  AlUSuuls^  before  out*  said  lord 

\  king^^ai  Wesloimstcr^  the  ti foresaid  Thomas 

larjis,  €*q.  utid  BrasaCionliyj  fsq.  then  slienir 

;  ^1iddle«ea:  as  afftrt^aid,  returned  the  afore- 

^td  Writ  of  Exigent,  executed  and  endorsed 

\  txillows  ;  (to  wtt),  By  rtrtue  of  this  writ  to 

\  threelt'd,  at  tny  couoty  court,  held  at  the 

j»e  known  hy  the  %t^n  of  the  Three  Tuns  in 

rook -street,  near  flolhorn,  in  the  coo  my  of 

|iddle!iex«  ihe   12th  day  of  July,  in  the^Uh 

ar  of  the  rei^fo  of  our  presient  auvereiifii  lord 

ori^e  tlie  Third,  noiT  ktng  of  Great  Britain, 

c.  the  within-iiame>d  John  Wilkes  was  the 

<t  time  exacte<)f  and  did  not  A|titear  \  at  my 

unty- court,  held  at  the  same  idace,  the  9th 

ly  of  AoKust  in  the  year  afoFeiaidr  the  said 

hti  Wilkes  was  a  second  lime  ex(iGt«d,  and 

not  a^{iear  ;  and  at  my  county  court,  held 

at  the  same  i>hii:e^  the  O^h  day  of  September 

*i  Ihe  year  aforesaid,  the  said  John  Wilkes  wot 

^ third  lime  exacted,  and  did  not  ap|»ear.    The 

i^wer  of  the  hon,  Thomas  Ifarley^  and  Sn- 

Huel  Turner,  esq,  sheriA^.     Tliis  writ,  as  U  is 

►*c  iudoriied,  was  dchvereii  to  iiiei  the  under^ 

preiertt  sheriif,  hy  llie  above* namrd  late 

;|f,  at  the  time  of  his  t^oin^  out  of  hin  otfice ; 

nI  at  my  eouoly  court,  held  at  the  house 

own   by  lite  niifn  of  the   Three  Tuns,   in 

ook  aiieet  afoiesiaid,  the  4th  day  of  I  )ctotier, 

the  >vaui  -nil  ^emr  of  the  rdgn  of  our  aaitl 

^vi%\  »iuvereii;n  lord  the  kin;(,  the  said  John 

likes,  Hiihin-fiatued,  w;iv  a  4th  timoexucted, 

d  did  not  appeai  ;  and  at  tiiy  county  court. 

Id  iit  the  same  place,  the   tat  day  of  Nov, 

|>tte  5th  year  ol'the  rei^n  of  our  iaid  lord  the 

It  km;;,   Ihe  uid  John  Wilkes  wiia  a  5ib 

€Xuot«Ml,  and  thd  not  appear:  then  fore, 

by  the  judumeui  id'  Edward   Umfretille,  e*f^. 

Aiid  TUoina«  I'hilUps,  ^eiiileuian,  hi^  lUMjrsty^s 

''^  ironers  of  the  aatd  couuly  of  Mnidlef^ex,  the 

lid  Jidm  Wi1ke«,   accordinif  to  ihe  Uw  and 

of  I  his  realm,   is  outlawed.     The  aii- 

er  of  Tluunas  K.trris,  esr|.  and  Brass  Cro^hy, 

eaq,  sheriff,     Thcretore  the  sheritfof  MidiHe- 

■ex  is  commanded,  ihat  ha  do  not  fmhear  by 

afOMofnri     "'  ,Li  htg  hadiuiik,  but  that 

fUketli.  .  Wiikis,   if  ho  (Shall   be 

undiii  hi  -  *  '  ■   1      '  ly  krep.  so 

^%%  *i  ■  n.tj^day  next 

be  ociaie  ,  m  ttland  ritjht 

I  court  of  .  :,i.  kinif,  htfore 

bimself,  upon  the  ouita wry  alorrnatd, 

nucvd    ax   afnnwiiid,    t'oiRtjiniij^^  the 

contc  l,!,.^.. 

id,  wberrof  h<  jK>n, 

a  jury  of  the 

d  the  king  ai 

f%L%¥%\  US  alof^viiid.     ihi  VkUiLU  siiid  Wvd^ 
y  Uf^xt  ufier  iht^  oct&f a  oi  biiiut  UiUry, 


A,  D-  1763—1770. 


[1394 


befere  our  lord  the  kin^  at  Weatminster,  thft 
shertflTof  Mid^llesex  hath  nat  sent  the  laid  last- 
mentioned  writ,  so  isiued  an  af*»rei$HKl,  uor  don« 
any  thins?  thereupon:  therefore,  as  hefore,ib« 
sherilf  of  Middletiex  iij  comnunded  that  he  do 
not  forbear  by  reaj*on  of  any  liberty  in  hl*«  baili- 
wick, but  that  he  take  the  ^itid  John  Wilkes,  if 
he  shall  be  louud  in  his  bailiwick^  and  hmi  Mife* 
ly  keep,  so  lii^rt  he  may  have  bis  hotly  before  our 
suid  Irird  thekiii^'t  at  WeRtminHler,  ou  Wedoe9> 
day  next  after  ^fteen  days  from  the  feast  dajr 
of  Easter,  to  stand  riijht  in  the  court  of  our 
said  lord  the  king*,  b«lbre  tim  kinif  himself, 
upon  the  outlawry  aforesaid,  to  prunonuc^il  ai 
affiressiid,  concerninij  the  irespusses,  contem|»t« 
and  iiii^demeaDors  aloresaid^  whereof  he  is  im- 
peached, and  tliereupou,  hy  ft  ji^ry  of  the  coun- 
try taken  between  our  said  lord  the  king  and 
the  said  John  Wilkes,  he  is  coiifiuted  as  afore* 
said.  Ou  which  said  Weilne^day  next  after 
fifteen  days  frorn  the  feast  day  of  Ea^tier,  before 
our  said  lord  the  kiu^,  at  Westminster,  thfl 
sherifl'of  Middlesex  bath  not  sent  the  said  last- 
mentiotied  writ,  so  isAued  as  aforesaid,  nor  dona 
any  lliin^  thereupon  :  therefi»re,  as  before,  the 
sheriff  of  Middlesex  is  commanded,  thai  he  do 
not  forbear  by  rea^n  of  any  libetiy  in  hif 
baiUwick.  but  that  he  take  the  said  John  Wilketi 
if  he  shall  be  found  in  his  bailiwick,  and  him 
aafely  keep«  so  that  he  may  ha?e  his  biNJy  be- 
fore our  said  lonl  the  kttif^,  at  Westminster,  oq 
Friday  next  atVr  the  morrow  of  the  llolv  Tri* 
nity,  to  stand  right  in  the  court  of  our  saiil  lord 
thtsktng',  before  the  king- himself,  upon  the  out- 
lawry aforrsjiid,  so  pronounced  as  aforesaid, 
coucerninif  thetrespasies,  contempts,  and  mis- 
dettieanors  aforesaid,  whereof  In*  is  impeached, 
auti  thereupon,  by  «i  jury  oi  the  country  taken 
betwi'en  our  said  lord  the  kiui;  urid  ihe  said 
John  Wilkes,  he  is  contfiited  »a  aforeMiid.  Oo 
i^hich  natd  Friday  next  afier  the  morrow  of 
the  Holy  Trinity,  before  our  Maid  lonl  iho 
king-,  at  Westminster,  the  sheiitT  oi  Middlesex 
bath  not  seat  the  said  bslrriLUlioned  writ, 
so  issued  as  albresuid,  nor  done  ativ  thin^ 
thereupon:  iheretore,  ai  before,  t  hi*  sUi^r  iff  of 
Middlesex  is  commanded,  ihsil  he  do  not  for- 
bi:ar  by  reason  of  any  liberty  ui  his  bath  wick, 
but  that  he  take  Ihe  said  Jcdin  Wilkes,  if  he 
shall  be  found  in* his  bailiwick,  and  liitn  safely 
keep,  so  that  be  may  htt»»?  bis  h  i '  *  ' "  our 
said  lord  the  kinif,  at  Wewlmuuti  r  ff* 

day  next  after  the  morrow  of  All  n J  »t?d 

ritrht  in  the  couH  t»f  our  and  lord  Ihe  km(r# 
bcioic  the  kinvf  himself,  upuo  lh«*  outUwry 
afurefiud.so  protiounred  uu  aforeiwad,  couceru- 
iji,^r  til,.  i»,  >.tmssi  s  <  iiriiempls,  and  i«i%dcme»- 
l^Z  f  hr  I*  impeachiid,  and 

Ilit,  ..r  the  coiiolry  taken  be* 

iween  our  said  luiii  liu-  Vwx^  ami  the  said  Jobn 
Wdkea,  he  is  i;ont ictetl  as  aforvisid.  < hn  wbldt 
said  Wednesday  next  afi*^r  tho    i  ^  Ail 

Sou!?.  belof«»  our  *nM  b^'d  the  I  ^'^- 

;    ^"MlciMfX  u-ti»  s-*** 


sai 
as  1 
4  U 


fWiliiftit 


139S] 


4— 10  GEORGE  IIL 


cd,  th»the  do  not  forbear,  by  reason  of  any 
liberty  lo  bis  bailiwick,  bot  that  he  take  the  said 
John  Wilkes,  if  be  shall  be  found  in  bis  baili- 
widc,  and  him  safely  keep,  so  that  he  may  bate 
his  body  4)efore  oar  kird  the  kins',  at  West- 
minster, on  Thursday  next  after  the  octave  of 
Saint  Hilary,  to  stand  right  in  the  Court  of  our 
•aid  k>rd  the  king^,  be^re  the  king  himself, 
opon  the  outlawry  aforesaid,  so  pronounced 
At  aforesaid,  concerning  the  trespasses,  con- 
tempts, and  misdemeanors  aforesaid,  whereof 
he  IS  impeached,  and  thereupon,  by  a  jury  of 
the  country  taken  between  our  said  lord  the 
kiog  and  the  said  John  Wilkes,  he  is  con? icted 
•t  aforesaid.  On  which*  said  Thursday  next 
•iW  the  octave  of  Saint  Hilary,  before  our  said 
lord  the  king,  at  Westminster,  the  sheriff  <^ 
Middlesex  hath  not  sent  the  said  last- mentioned 
writ,  so  issued  as  aforesaid,  nor  done  any  thing 
thereupon :  therefore,  as  before,  the  slieriff  ^ 
Middlesex  is  commanded,  that  he  do  not  for- 
bear by  reason  of  any  liberty  in  his  baili- 
wkk;  but  that  he  take  the  said  John  Wilkes, 
if  he  shall  be  found  in  his  bailiwick,  and  him 
itfoly  keep,  so  that  he  ofay  have  hb  body  be- 
fore our  said  lord  the  king,  at  Westminster,  on 
Wednesday  next  after  fifteen  days  from  the 
feast  day  of  Easter,  to  stand  right  in  the 
court  of  our  said  k>rd  the  king,  before  the  king 
himself,  OD  the  outlawry  aforesaki,  so  pro- 
nounced as  aforesaid,  concerning  the  tres- 
passes, contempts,  and  misdemeanors  afore- 
said, whereof  he  is  impeached,  and  thereupon, 
by  a  jury  of  the  country  taken  between  our  add 
lord  the  king  and  the  said  John  Wilkes,  he  b 
convicted  as  aforesaki.  On  which  sakl  Wednee- 
d»y  next  after  fifteen  days  from  the  feast  day 
of  Easter,  before  our  said  k»rd  the  king,  at 
Westminster,  the  sheriff  of  Middlesex  hath 
oot  sent  the  said  last- mentioned  writ,  so  issued 
as  aforesaid,  nor  done  any  thing  thereupon  : 
therefore,  as  before,  the  sheriff  of  Middlesex  is 
commanded,  that  he  do  not  forbear  by  reason 
of  ai^  liberty  in  his  bailiwick,  but  that  he  take 
llie  said  John  Wilkes,  if  he  shall  be  found  in 
bis  bailiwick,  and  him  safely  keep,  so  that  he 
may  have  his  body  before  our  said  lord  the 
king,  at  Westminster,  on  Friday  next  after  the 
morrow  of  the  Holy  Trinity,  to  stand  right 
in  the  court  of  our  said  lord  the  kiog,  before 
Ibe  king  himself,  upon  the  outlawry  aforesaid, 
BO  pronounced  as  aforesaid,  concerning  the 
trespasses,  contempts,  and  misdemeanors  afore- 
faid,  whereof  he  is  impeached,  and  thereupon, 
by  a  jury  of  the  country  taken  between  our 
said  lord  the  king  and  the  said  John  Wilkes,  he 
is  convicted  as  aforesaid.  Ou  which  said  Friday 
next  after  the  morrow  of  the  Holy  Trinity,  be- 
fore our  said  lord  the  king,  at  Westmiuster,  the 
sheriff  of  Middlesex  hath  oot  sent  the  said  last- 
unenlioned  writ,  so  issued  as  aforesaid,  nordone 
any  thing  thereupon:  therefore,  as  before,  the 
theriffot' Middlesex  is  C(»mmanded,  that  he  do 
not  fortiear  by  reason  of  any  liberty  in  his  baili- 
wick, but  that  he  take  the  said  John  Wilkes,  if 
be  shall  be  found  in  his  bailiwick,  and  him 
Mfdy  keep,  so  thst  he  may  have  his  body  be- 


Addenda  to  the  Casei  [ISM 

fore  omr  said  lord  the  king,  at  Westminster,  m 
Thursday  next  after  the  morrow  of  AU  Soub, 
to  stand  right  in  the  court  of  oar  said  lord  the 
king,  before  the  king  himself,  upon  theoutlawiy 
aforesaid,  so  pronounced  as  aforesaid,  ooDcera* 
ing  the  trespasses,  contempts,  and  misdemean- 
ors whereof  he-  is  impeach^,  and  thereupon, 
by  a  jury  of  the  country  taken  between  oar 
aaid  lord  the  king  and  the  said  John  Wilkes,  be 
is  convicted  as  aforesaid.  On  which  said  Thurs- 
day next  after  the  morrow  of  AIMSouls,  be- 
fore our  said  lord  the  king,  at  Westminster,  the 
sheriff  of  Middlesex  bath  not  sent  the  said  JasW 
mentioned  writ,  so  issued  aa  aforesaid,  nor  done 
any  thing  thereupon :  therefore,  as  before,  the 
sheriff  oTMiddlesex  is  coromaoded,  that  be  do 
not  forbear  by  reason  of  any  liberty  in  bis  bailie 
wick,  but  that  he  take  the  said  John  WilkeS| 
if  he  shaU  be  found  in  bis  bailiwick,  and  bim 
safely  h»ep,  so  that  he  may  have  his  body  be- 
fore our  said  lord  the  king,  at  Westminster,  on 
Friday  next  after  the  octave  of  Saint  Hilary,  to 
stand  right  in  the  court  of  our  said  lord  the  kii^, 
before  the  king  himself,  upon  the  outlawry 
aforesaid,  so  pronounced  as  aforesaid,  coDcera- 
ing  the  trespasses,  eontemota,  and  mlsde» 
meanors  aforesaid,  whereof  be  is  impeached| 
and  thereupon,  by  a  jury  of  the  country  taken 
between  our  said  lord  the  king  and  the  ssid 
John  Wilkes,  he  is  convicted  as  aforeaaid.  On 
which  said  Frklay  next  aftmr  the  octave  of  Sauit 
Hilary,  befdre  our  said  lord  the  king,  at  West- 
minster, the  sheriff  of  Middlesex  bath  not  sM 
the  said  last-mentMoed  writ,  so  issued  as  afore- 
said, nor  done  any  thing  thorenpon :  thereforsi 
as  before,  the  mcritf  of  Middlesex  is  com- 
manded, that  he  do  not  forbear  by  reason  of  aoy 
liberty  in  his  bailiwwk,  but  that  be  take  tM 
said  John  Wilkes,  if  he  shall  be  found  in  his 
iKiiliwick,  and  him  safely  keep,  so  that  he  may 
have  his  body  before  our  said  lord  the  king,  at 
■  Westmmster,  on  Wednesday  next  after  fitteen 
days  from  the  feast  day  of  Easter,  to  stand 
right  in  the  court  of  our  said  lord  the  kiog, 
bdbre  the  king  himself,  upon  the  outlawry 
aforesaid,  so  pronounced  as  aforesaid,  con- 
cerning the  trespasses,  contempts,  and  mis- 
demeanors aforesaid,  whereof  he  is  im- 
peached, and  thereupon,  by  a  jury  of  the  coun- 
try taken  between  our  said  lord  the  king  aud 
the  said  John  Wilkes,  he  is  convicted  as  afore- 
said. On  which  said  Wednesday  next  after 
fifteen  days  from  the  feast  day  of  Laster,  before 
our  said  lord  the  king,  at  Westminster,  the 
sheriff  of  Middlesex  hath  not  sent  the  said 
last-mentioned  writ,  so  issued  as  aforesaid, 
nor  done  any  thing  thereupon:  therefore,  u 
before,  the  sheriff  of  Middlesex  is  commanded, 
that  he  do  not  forbear  by  reason  of  any  liberty 
in  his  bailiwick,  but  thai  he  take  the  said  John 
Wilkes,  if  he  shall  be  found  in  his  bsiliwick, 
and  him  safely  keep,  so  tliat  he  may  have  bit 
body  before  our  said  lord  the  king,  at  West* 
minster,  on  Friday  next  after  the  morrow  of 
the  Holy  Trinity,  to  stand  right  in  the  coorl 
of  our  said  lord  the  king,  before  the  king  bim« 
self,  upon   the  outlawry  aforetatd»  si 


ism 


eoncernim  Mr.  IVUkes* 


AOUQced  astforetiiid,  concerniDf  the  trespasieSt 
coDtemptST  and  misdemeaoors  atoresaid,  where- 
or  he  is  iropc^ached,  and  Ibereupon,  by  a  jury 
of  the  country  iakei)  between  our  laidlord  Ibe 
kiii^  and  (he  said  John  VVilkeji«  he  la  coDvicted 
•taforcsaid*  Ow  \thich  said  Friday  nextafler 
the  morrow  of  Ibe  Holy  Trinity,  before  our 
laid  lord  the  king,  at  VVeslmiuater,  the  shentr 
of  I^Iiddleaex  halh  not  aeut  the  said  lastmea* 
tloned  writ,  so  issued  as  aforesaid,  nor  done  any 
thinpc  thercufion :  therefore,  as  before,  the 
sheriff  of  Middlesex  is  comtnattdetl,  that  he  do 
not  furhear  by  rea^iOQ  of  any  liberly  in  his  Uaili* 
Tricky  bnt  that  he  take  the  said  John  Wilkea, 
if  he  shall  he  found  in  his  hniliwick,  and  him 
safely  keep^  gn  that  he  may  hnve  hi§  body  be« 
fore  our  said  loid  the  kin^»  at  Westminster,  on 
Friday  next  after  tht;  morrow  of  All  Bouts,  to 
ttsnd  right  in  the  court  of  our  said  lord  the 
king,  ht^rdre  the  kin^  himself,  upon  the  out- 
lawry aforesaid,  ao  pronounced  as  aforesaid, 
concerning  the  trespasses,  contempts,  and  nus* 
demcanora  aforesaid,  whereof  he  is  impeached, 
and  thereupon,  by  a  jury  of  the  country  taken 
between  our  said  lord  the  king  and  the  said 
John  Wilkes,  be  is  convicted  as  aforesaid.  On 
which  said  Friday  oeit  after  the  morrow  «f  All 
iloul»«  before  our  said  lord  the  king,  at  West- 
loioster,  the  sheriff  of  Middlesex  bath  not  sent 
the  said  last- mentioned  writ,  so  issued  as  afore* 
said,  oor  done  any  thing  thereupon.  There- 
fore, as  before,  the  sheriff  of  Middlesex  is 
commanded,  that  he  do  not  forbear  by  reason 
of  any  lif>erty  in  his  bailiwick,  but  that  be  take 
the  said  John  Wilkes,  if  he  shall  be  found  in 
his  baihwick,  aud  him  ^lafeJy  keep,  so  that  he 
tiiay  baire  his  body  befure  our  said  lonl  the 
king,  at  Westminster,  oo  Satujday  next  after 
the  octafe  of  Saint  Hilary,  to  stand  right  in  tha 
court  of  our  said  lord  the  king,  before  the  king 
liifilself,  upon  the  outlawry  aforesaid,  so  pro- 
Douneed  as  aforesaid,  concerning  the  trespasaesp 
contempts,  and  misdemeanors  aforesaid,  where* 
of  he  \%  impeiiched,  and  thereupon,  by  a  jury 
of  the  country  taken  betiveeo  our  said  lord  the 
king  and  the  said  John  Wilkes,  he  is  conrided 
as  aforesaid.  On  which  said  Saturday  next 
after  the  octave  of  Saint  Hilary,  before  onr 
said  lord  the  king,  at  Westminster,  the  sheh^ 
of  Middlesex  halli  not  sent  the  said  last-men- 
tioned writ,  so  issued  as  aforesaid,  nor  done 
any  thing  thereupon  i  therefore,  as  liefore,  the 
sheriff  of  Middleitrx  is  commanded,  that  he  do 
not  forbear  by  reason  of  any  liberty  in  hiK  baili- 
wick, but  that  he  take  the  Mtid  Jidiu  Wilkes,  if 
lie  •hall  be  found  in  hia  bailiwick,  and  him 
safety  keep,  so  that  he  may  have  bis  Ijody  he- 
foro  our  said  lord  the  king,  at  Westminster,  on 
Wednesday  next  after  three  weeks  from  the 
feait  day  of  Easter,  to  stand  right  in  the  court 
of  our  said  lord  the  king,  (lefore  the  king  him* 
self,  upoii  the  outlawry  aforesaid,  si>  pro* 
AOunocrd  as  aforesaid,  concerning  (h«  irespaMies, 
contempts,  and  miRdemcanors  aforesaid,  where- 
of he  ti  impctiched,  and  thereupon,  by  a  jury 
of  the  country  taken  between  our  said  lord  the 
king  sad  the  sski  John  WUkei)  b«  ii  coat ict««l 


A,D.  1763—1770*  [J398 

as  aforesaid.  C|n  which  said  Wednesday  next 
af^er  three  weeks  from  the  feast  day  of  Easter^ 
before  Oiir  siii^l  lord  the  king,  at  VVestmiasU 
comes  tlie  said  Jolm  Wilkes,  in  his  proper  ^ 
son,  being  brought  here  into  the  court  of  i 
said  lord  the  king,  before  the  king  himseli, 
under  the  custody  of  the  sheriff  of  the  couotj 
cd'  MiddlestiX,  by  virtue  of  the  said  last  mea 
lioned  writ ;  an n  the  said  John  Wilkes,  upo 
the  prayer  of  William  De  Grey,  es<j.  noil 
attorney -general  of  our  said  lord  the  king^,  who 
now  prosecutes  for  our  said  lord  ihe  kin^  in 
this  behalf,  present  here  in  court,  is  committed 
by  the  Court  here  to  the  custody  of  the  mar- 
shal of  the  Marshalseaof  our  said  lord  theking'^ 
befbre  Uie  king  himself,  to  be  by  him  kept  in 
safe  custody,  until,  &c.  And  the  naid  John 
Wilkes,  DOW  herein  court,  prayethoyer  oflho 
record  and  jiroeess  aforesaid,  and  they  are  read 
to  him  ;  which  hfinj^  read  and  heard,  the  said 
John  Wilkes  producelh  here  in  court  a  cft\%\n 
writ  of  our  said  loni  the  king,  to  I  % 

here  directed  ;    which  said  writ  foil  ,   m 

these  words  \  (that  is  to  say ;)  George  the 
third,  by  tlie  grace  of  God,  of  Great  (li  ilain, 
France,  and  Ireland,  king,  defender  of  the 
faith,  ^c*  To  our  justices  appointed  lo  hold 
pleas  before  us,  greetiag.  For  as  much  as  in 
the  record  and  process,  as  also  in  the  publica- 
tion of  an  outlawry,  against  John  Wilkes,  lata 
f»f  Westminster »  in  the  county  of  Middlesex, 
eso,  on  a  certain  information  against  the  said 
John  Wilkes,  for  printing  and  piihlishin;^  a 
certain  book  and  hbel,  intituled,  The  North 
Rrilon ;  and  a  certain  other  libel,  intituled, 
N^  45,  Saturday,  April  23rd,  1703;  whereof 
the  said  John  Wilkes  is  impeached,  and  there* 
upon,  by  a  jury  of  the  country,  is  convicted, 
as  it  is  said  manifest  error  hath  intervened,  to 
the  great  damage  of  the  said  John  Wilkes,  aa 
by  liis  complaint  we  are  informed;  we,  iiilltng' 
that  the  said  error,  if  any  be,  be  duly  amendeJg 
and  full  and  speedy  justice  done  to  the  said 
John  Wilkes  in  this  behalf,  do  command  yoit^ 
that,  if  the  said  outlawry  be  returned  before 
OS,  as  hath  been  said,  then  inspecting  the  said 
record  and  process,  you  rause  further  to  be 
done  tliereiu,  for  annulling  the  said  outlawry, 
as  of  rii^ht,  and  nccording  to  the  law  and 
custom  of  En^latidt  shut!  he  meet  to  be  done. 
Witnras  ourself  at  Westminster,  the  Qith  d»iy 
of  April,  in  the  eighth  year  of  our  rtfign.  And 
hereupon  tlie  km  id  John  Wilkes  says,  thai  in 
the  record  and  procesJi  aforesaid,  and  also  in 
the  publication  of  the  aforesaid  outlawry,  iliere 
is  manifest  error  in  this,  that  there  is  no  sulH- 
cient  in  fori  nail  on  filed  or  exhibited  a  gain  at  the 
aatd  John  Wilkes,  wherrnn  to  gromMl  the  pro 
ccAi^  of  the  outlawry  aforesaid,  by  rea^ol 
whereof  the  siid  outlawry  is  void,  and  of  no 
effect  or  force  whaiMwver*  There  is  also  error 
in  this,  that  no  pnblic  proclamation  whatnoever 
is  mc'ntioned  to  have  b«eo  made  at  any  op«a 
county  court,  or  at  any  general  quvrter  seisioui 
of  the  ()eaco  w  h(\tsoever,  or  at  the  floor  of  any 
(larisb  church  where  the  said  John  WilkfS  waa 
aa  lubabitaDt,  aocordtog  to  Ihe  eJcigtnc^  of  tJb^ 


I 


1599]         4—10  GEORGE 

•lift  writ  of  Capitis  ciim  Pmclamatjtme ;  there- 
tore  ia  that  there  U  mAnifesl  f  rror.  Ttiere  i^ 
bIso  emir  in  lliis,  itiat  it  i»  n<jl  shewn,  nor  elites 
it  uppear,  hy  ilie  return  of  the  sheriff  of  Mitl- 
dlesex,  thai  the  sheriff  of  UliWiKesex  *lid  cause 
to  he  exiicted  the  «aiil  John  VVtIkes,  m  the  saiJ 
coinily  of  Middlesex,  froro  county  court  to 
county  court,  iiiiiil  he  was  out  Jawed  occonlio(j 
to  the  bw  BT)d  <»ir5;tom  of  EnglanJ,  as  the  fiaid 
ihpriffhv  the  said  writ  afExij^tnt  is  command- 
ed ;  anJ  thiit  it  ia  nnt  shewn,  nor  does  it  ap- 
pear, hy  the  return  of  the  sheriff  of  Middle- 
sex, ihttt  the  taid  John  Wilkes  was  a  first, 
•econd,  third,  fourth,  aiifl  fitUi  time  exacted  at 
the  connty  court  uf  the  connty  of  MichlJeset,  as 
by  the  law  of  ihe  lamt  he  ouVht  to  have  been^ 
before  he  wat  outlawed  ;  therefore  In  that  there 
is  luanifest  error.  There  is  al«o  error  in  thi?, 
Hint  in  the  record  tind  process  aforesaid,  and  in 
the  puhlication  of  the  ontlaxvry  aforesaid,  it  in 
no- where  ex|»re«sly  shewn,  thai  the  place  calleil 
Brook-atreet,  (if  any  mjch  I  here  he  )  where  the 
#ef eral  county  coortt  are  f50p|K»sftl  to  Imve  lM»eii 
hehl,  at  which  thr  said  John  Wilkes  h  said  to 
httvu  bppfi  eXiicted,  it  in  the  county  of  Middle- 
sex, or  in  any,  and  what  oiher  cuiinty  ;  there- 
fore in  that  ihcrt  i«  manifest  error.  There  is 
also  errt»r  in  this,  that  it  doe<  not  Mpppar  that 
tny  judijment  of  outlawry  was  £ri?en  or  pro- 
UoOBced  atrainjfi  tiie  gaid  John  Wilkes,  or,  if 
nny  such  jud^-ment  was  given  or  prooouncHd, 
in  what  form  the  same  was  so  giren  or  pro- 
Hounced»  as  it  ought  to  have  done,  in  order 
that  the  (eirahiy  And  propriety  of  ihesaidjude- 
ineni  mii^ht  have  het^n  seen  and  examined  ;  but 
in  llie  record  and  process  afoteaaid,  and  in  the 
puhticfltionof  the  outlawry  aforpsaiil,  reference 
and  rplaiitm  i»rdy  are  had  to  some  jndijmenl 
not  sljpun  or  expressed,  hut  siippofsed  to  have 
bt^u  hpfore  ifivcn,  a^-ainst  the  said  iuhn  Wdkes  ; 
therefore  in  I  hat  there  h  m»nifei«t  error.  Where- 
fore the  said  John  Wilkes  priiyg,  that  the 
outlawry  aforenBiil,  for  the  errors  Jtoresaid,  ami 
othef  errors  appeiiringf  in  the  record  and  process 
aforfKaid,  may  he  reversed  and  hehl  int  no- 
thing:, and  I  hut  he  may  he  reslored  to  the  com- 
mon law,  and  to  alt  which  he  haih  lost  by  oc- 
rasion  of  the  outlawry  aforesoiij,  Vc,  And 
the  MR  id  William  de  Gi-ey,  e«(j  ,  now  attorney 
generid  of  our  present  sovereign  loril  the  kinif, 
iireseot  here  in  ci*url  in  his  proper  perinn, 
liavinif  heard  the  mat  fern  aforesaid  ahove  as- 
•itfned  for  error,  for  our  said  lord  the  king,  sailh, 
Ihiit  neither  in  the  record  and  process  a^reaaiil, 
nor  in  the  publication  of  the  aforesaid  outlawry, 
is  there  any  error;  and  he  prays,  that  the 
f!ourl  of  our  snii)  lortl  the  kingr,  now  here,  may 
proceed  fo  the  exnminali*m,  as  ivell  of  ihe  re- 
cord and  procp«<«  sitoresanl,  as  of  the  matters 
•foresnid  above  assii^^ned  for  error,  and  that  the 
onllawry  aforesaid  may  in  all  things  he  affirm- 
ed. And.  because  1 1 ^e  court  of  our  said  lord 
the  kin^,  nmv  here,  is  not  as  yet  advised  about 
giving  iheir  juif^ment  of  and  concerninif  the 
premises,  a  day  is  therefore  given,  aa  well  to 
ihe  sard  William  De  Grey,  esq.  who  nrose- 
9UUM,  kc.MUy  Ihe  laid J^huWWW^^vitidei v\\e 


Addenda  ia  ike  Ctoit  [Ml 

custody  of  tilt  tnttrsttat  aforcwud,  •«0i| 
Wedtips^lay  next  after  ilie  octave  af  ikt  B^l 
Tr^uuy,  before  our  loni  the  king:,  at  ^c<ii»^| 
sier,  (ihe  sjiid  John  Witkeato  (M?kepliN«l| 
custody,  under  the  cuslmly  of  Ihe  said  lamld  1 
in  the  mean  time)  i«  lir»r  itieir  jodgn 
lhereu|K)n ',  because  the  court  of  niirwiW  { 
the  kin^>  now  here,  is  not  as  y^  mdnam 
upon.  At  which  day,  to  i*tt^  on  lit  all 
Wednesday  next  after  the  oclavt!  of  Ibt  {Uf 
Trinity,  before  our  said  lord  the  kini;,«t  W«* 
minster,  comes  as  well  the  Mitil  WdlianlVl 
Grey,  es^.  who  prosecutes,  6c<^.  a* 
John  Wilkes  in  bis  pro|»er  nrraon, 
custody  of  the  said  roarshal,  tMciof 
here  into  court  by  virtue  of  a  rtti«  of  tlitii 
Court  in  that  behalf;  wbereupoii  all  aratf  ai*  | 
t^ular  the  premises  bein^  seen,  and  by  theCMl  I 
here  fuHy  understood,  it  is  c^ti«iileTe4l  b*  tii 
Court  here,  thut  the  outlawry  aforesaid,  for  At 
errors  atoresaul,  and  other  errors  apjft*ann|i|  I 
the  record  and  process  afnrecaid,  be  rmr^^j 
annulled,  and  held  far  ootUing^  ;  aad  thai  t 
the  suid  John  Wilkes  be  restored  to  th 
mon  hw  of  Engbnd,  and  to  all  thai  1 
lust  hy  uccaaion  of  the  outlawry 
and  as  to  the  outlawry  afores^aid,  tbtt  1 
depart  hence  withoot  day.  And  btsno^ 
the  said  William  De  Gr^y,  who  prosvcH^ 
•kc.  pray«th  Judgment  tW  our  aiid  lord  thi 
king  aguinst  the  said  John  Wilkes,  af  ai 
npon  Ihe  premises  whereof  lie  ia  icD|Ma<ici 
and,  by  a  jury  of  the  country  iiikeii  bnwm 
our  said  lord  the  king  and  the  said  John  Wilbi) 
he  is  convicted  as^  nforesAid  ;  but  lierai^eli 
Court  of  our  said  lord  tlie  kia|^*  ttov  bere,  I 
not  AS  yet  adviseil  about  ^iirtti|f  their  juilfia«M 
of  and  upon  the  firemisea  atoreisaitK  mbmi 
be  the  said  John  Wilkes  is  impeached  and  e0> 
victed  as  aforesaid,  a  day  in  there/ore  grfflia 
well  to  the  said  William  De  Orey,  wbo  prw** 
cutes,  &c.  as  to  the  aaid  J«thn  Willies,  iilH 
state  in  which  now,  Sfc.  iji>  ^-  tmlaaijd 

the  said  uiar^hal,  until  oo  '  x  nest  i^ 

lifteeD  days  from  the  day  ot  ihti  ttidy  Tfmjt 
before  our  said  lord  the  kintr*  at  WeaiiaiflBVi 
(the  said  John  Wilkes  to  be  kepi  in  salt  vth 
tody  I  under  ihe  custody  of  the  said  msnkil, 
in   the   mean  imie),  to   tiear    t>  T^jaisl 

thei^upon  ;  because  the  Court  i4M 

the  king,  now  here,  is  not  as  yt  i  „..,,.,  ^  i^arCi 
upon.  At  wliich  day,  to  wit,  on  Saturday  Mtf 
atler  fifteen  days  from  ilie  d»v  nf  iL*.  H«tf 
Trinity  before  our  said  ford   the  Wei- 

minuter,  comes  us  well  the  strn;     in  Pi 

Grev,  who  prosecutes.  Ice.  as  the  sanl  Jofaa 
Wilkes,  under  the  eustwty  of  ilie  said  maoliili 
being  brought  here  into  court  by  yirtoeaf  t 
rule  of  the  said  Court  iu  that  behalf  Whii^ 
upon  all  and  singular  the  premiaea  brio^arfai 
and  hy  the  Court  here  fully  uiHter^tOdd,  it  ii 
considered  by  the  Court  here^  tliat  tkm  sail 
John  Wilkes,  for  his  offt-ncea  aluresaid,  dn  |«af 
a  fine  to  our  sovereigu  lord  the  king-  of  iA 
hundred  pounds  of  lawful  tnooej  of  Uf^ 
Britain,  and  that  he  the  said  John  Wtlkf*  It 
v^R^uwftftA^  \^  tKe  cuBtody   of 


V 


1401] 


eoneeming  Mr.  Witkes. 


A.  D.  1763—1770. 


[I40t 


marslmlt  for  the  spacf  of  ten  calcnrltir  months 
UDW  next  etituiiii^;  and  ibe  t»iir)  John  Wilkes, 
presepi  bere  wv  coiirl,  is  roiiimiUed  by  the 
Cuuri  here  l«»  ihe  custyil y  ut'  ihf  albresaiiJ  inar- 
sbHt,  to  lie  by  biiii  kepi  in  sate  cuRiudVt  in  exe- 
cution of  thejudfftiienlal'cireitiiitl^  ana  until  be 
•halt  biwepuid  the  said  Aoe. 

NiTB,  89,  l?68. 
fssjuiQeil  with  tbv  original  Roll. 

Bev.  FiLMEa, 
Clerk  of  ibe  Kiuj^'s-beocb  Tre4i8urj. 


When  the  copy  of  the  record  of  tbe  proceetl- 
ingi  ciii  the  inturrnation  ai^aiiist  \Vilke§,  for 
publiishing  the  E«i»ay  ou  Woman,  6ic,.  was  de- 
livered itito  lite  House  of  CommuDt:,  and  bad 
lieeo  there  rend,  the  Hc»use,  on  November  %U 
17G8,  ordered^  ibat  it  should  he  locked  up  hy 
the  clerki  arvil  that  no  copies  should  he  allo^veil 
to  be  taken  ihereoK,  nor  any  persons  except  the 
tnemtiers  of  Ibe  fiouiie  allowed  to  perus^e  it. 
And  on  the  3d  of  February,  the  House  or- 
flered  the  clerk  to  destroy  the  suid  copy  ;  so  tbul 
it  is  not  entered  io  the  JnurnuL 

Tbe  folio  wii>)^  variation  nf  purl  of  lord  Mans* 
field's  Speech/ (see  p.  1111)  on  reversing  the 
outlawry  a{,fain«t  Wilkes,  is  extracted  from  Ibe 
Gentleman^  Magazine,  lor  July  1768,  p«  327. 

<*  Tbe  follow mg-  is  handed  al>oul,  fts  the 
Speech  made  by  a  ^reat  lawyer  and  orator, 
on  a  late  memorable  occasion : 

**  I  bare  now  gooe  lbrou|rh  the  scTerHl 
^rrorft  assigned  by  ibe  derpiidaul»  and  wtiich 
bave  beep  ingeniously  aru;oedj  ami  cimfidetilly 
rebed  on,  hy  his  couVi^^el  ut  (he  bar:  I  liave 
g'iven  my  SfiiitiDenift  upon  them,  and  if  upon 
the  whole,  afier  Ihe  closest  at  lent  ion  to  what 
hait  been  ^aitl,  and  «iiih  the  hlroo>;est  incbtia* 
linn  in  favour  of  Ibe  deteudatitf  no  arifuments 
ubii'b  bave  been  urjfed,  no  ernes  whicli  huf  e 
been  cited,  no  reatsons  ibzit  occur  to  me.  ore 
tutticieut  ti»  Hotisiy  lue  in  my  conFii'ieuce  and 
judi^riieui',^  thai  lUis  uuiUv^ry  should  he  re- 
f  erned,  1  am  Imuud  to  affirm  it,-^Aod  here  let 
ine  make  a  pause. 

**  Many  arguments  have  beeu  luggfested, 
liotb  in  and  out  td  court,  upon  the  coiisieq|iience!< 
of  e^lablinbin^r  ttjiis  ouilav^ryt  either  an  ihey 
may  nfff^Lt  ibe  defendant  as  an  indtvidual,  or 
th''  |iuj»tic  ill  ifenenil :  ah  to  the  fif^t,  wbalerer 
tbey  miiy  lie^  the  dt'ltfiidant  bajt  brouifhl  them 
upon  htfiifidf;  ibfy  tire  inevitable  con^e- 
queoren  of  law  arisinir  from  his  ^>wd  act;  if 
Ibe  peiitilty,  to  whieb  he  is  i hereby  subjected, 
ks  more  Ibaxi  a  puoiabment  adf  c|uate  to  Ihe 
crime  he  has  commitled,  be  i^bould  uot  bave 
[  hrou^hl  himself  inti4tlii$  iiutortunate  predica* 
ment,  hy  tlyiot;  frimi  tbe  ju«lice  of  bis  country  : 
he  t  bought  projier  lo  do  »«,  sod  be  must  taste 
Ihe  fruits  of  liia  owo  couduel^  however  biiter 
&nd  unpalatable  I  bey  may  be ;  and  allboujfli 
we  may  be  beariily  sorry  for  any  person  who 
lias  brou^lit  himself  into  Ibis  situalion^  it  is  ool 
In  our  power,  Gud  forbid  it  sbould  ever  l»e  in 
our  power^  ta  delifef  biiD  from  U :   we  cannot 


prevent  ibe  jodj^menl  of  tbe  law,  by  cfeatinip 
irre:|^ularity  in  the  proet-edinif^  ;  we  camnil 
prevent  the  con  seep  lences  of  that  judtfmeot  bj 
pardonmt^  the  crime:  if  ihe  deii-n<i«ni  basuojr 
pretention's  to  niiercy,  tboiMe  pretenviun^  must 
be  urged,  and  that  power  exerciseil  in  anoiber 
place,  where  the  couHtitoiion  bus  wisely  und 
necessarily  vested  it :  the  crown  will  jod|>;e  IHr 
itself;  it  does  not  beloiitf  to  nsto  inlo^rlere  witli 
punishment,  we  have  only  to  ileclare  tbe  inw  ; 
nunc  of  us  bad  any  concern  in  tbe  prosecution 
of  this  business,  nor  any  wishes  u|ion  the  event 
of  it*  it  was  not  our  fault  tbai  tbe  defeuilant 
was  prosecuted  for  tbe  libeh  npon  which  ho 
bis  heeu  convicted  ;  I  look  no  share  in  anotlter 
place,  in  the  measures  which  v^^r^  taken  to 
prosecute  him  for  one  of  ihem ;  il  was  n*>l  our 
fault  tbal  be  was  convicted  ;  it  was  not  our 
fault  tbnt  be  fleiJ  ;  it  was  not  our  fault  that  bo 
nas  Dullawed  ;  It  was  not  our  fault  that  he  ren- 
tiered  himself  up  to  justice;  none  of  us  revived 
tbe  (>rosecution  aijainsf  hiii>,  nor  could  any  oii« 
of  us  stop  tbal  prosecution  when  il  was  ro* 
vived  J  it  is  not  our  fault  if  ihere  are  not  any 
errors  upon  the  record,  nor  is  it  in  our  fmiver  to 
create  any  if  there  are  none  ;  we  are  bound  bj 
our  oath  and  in  our  consciences,  lo  give  sueK 
ft  judgment  as  ihe  law  will  warrant,  and  as  our 
reason  can  approve;  such  a  judgment  as  we 
tnust  stand  or  fall  by,  in  ihe  opinion  of  the  pr»> 
sent  times,  and  of  posterity  ;  io  doing  it,  ihere^^ 
fore,  we  mu?t  bave  regfard  to  our  reputation  as 
honefll  men,  and  men  of  tikill  and  knowledge 
competent  to  the  stations  we  hold :  no  consl- 
ffirafions  whatsoever  should  mislead  us  fmoA 
this  great  object,  to  which  wc  ever  ouy:bt,  and, 
I  trust,  ever  sbnil  direct  our  attention.  But 
consequences  of  a  public  nature,  reasons  of 
stale,  political  ones,  have  been  strongly  iirgeft, 
(private  anonymous  letters  sent  to  nie  1  shell 
pass  over)  ojven  avoued  publications  which  have 
been  juiliciaUy  noticed,  and  may  ihereJbre  be 
mentitmed,  have  endeavoureii  to  in6uetice  or 
intimidate  tbe  Couii,  and  so  prevail  upon  us  to 
trifle  and  prevarica'e  with  God,  our  con* 
sciences,  and  tbe  public :  il  bas  l»een  inlimftle4 
lliat  corisef|tiences  of  a  frightfol  nature  will 
flow  from  the  e«ljblt*thmeul  id  i his  outlawry  ; 
it  is  said  the  (letiple  expect  tbe  reversal,  tbal 
the  temper  of  tbe  times  demands  il,  that  tbe 
multitude  will  bave  it  «r»,  thai  tbe  ci*ntinuutioa 
of  the  ouiIm  wry  io  full  force  will  r»oi  be  eiiduredi 
that  tbe  ejteculiou  (d'  the  law  u[»on  Ihe  deten* 
dHot  will  be  resisted  ;  these  are  argumetiti 
wb*cb  will  n'»t  wei^fh  a  feather  with  me»  ■  If 
insnrrecliim  and  rebi^lliou  are  to  follow  our  de- 
termitiaijou,  we  have  n^it  lo  answer  for  the 
cmsetpieoces,  though  we  should  be  ibe  iuno* 
cent  cause;  we  can  only  say,  ^  Fiat  Jutiilie 
*  rual  cceViim ; '  we  shall  disebarge  our  dotjf 
wiibnut  expeclatiuns  of  npprolwitioD,  or  tbe  ap- 
pre  hens  inns  of  censure ;  if  we  are  snbjecteil  to 
the  bitter  unjustly,  we  musi  suhiuii  to  it;  we 
cannot  prevent  it ;  we  will  irtke  care  not  to  de* 
eerve  il.  He  mosl  be  a  weak  man  indeed  wbe 
can  be  staggered  by  such  a  consideration* 
"  The  mieeppre'heutiou,  or  the  miiire^ceaAB^ 


A 


1403]         4—10  GEORGE  IJI. 

*  lition  of  the  igaorant  or  the  wicked,  the  *  men- 
<  dax  infamia,'  which  is  the  consequence  of 
Votb,  are  eqaalW  indifferent  to,  unworthy  the 
attention  of,  and  incapable  of  making  anjr  im- 
aressioB  on  men  of  firmness  and  intrepidity. 
Those  who  imagine  judges  are  capable  of  being 
influenced  by  such  unworthy  indirect  means, 
most  grossly  deceiye  themselTes:  find,  for  my 
•wn  part,  1  trust  that  my  temper,  and  the 
colour  and  conduct  of  my  life  baTe  clothed 
me  with  a  suit  of  armour  to  shield  me  froni 
tach  arrows.  If  I  have  ever  supported  tlie 
king's  measures;  if  I  have  ever  afforded  any 
asStance  to  goTernment ;  if  I  have  discharged 
■ly  duty  as  a  public  or  pri? ate  character,  by 
cudea? ouring  to  preserve  ^ure  and  perfect  the 
principles  of  the  constitution,  maintaining  un- 
■aliied  the  honour  of  the  courts  of  justice,  and 
Vy  an  upright  administration  of,  to  give  a  due 
ciect  to,  the  laws,  I  have  hitherto  done  it  with- 
•at  any  other  gift  or  reward  than  that  most 
pleasing  and  most  honourable  one,  the  con- 
adentious  conviction  of  doing  what  was  right. 
I  do  not  affect  to  scorn  the  opmion  of  mankind ; 
I  wish  earnestly  for  popularity ;  I  will  seek 
and  will  have  popularity ;  but  I  will  tell  you 
how  I  will  obtain  it.  1  will  have  that  popula- 
rity which  follows,  and  not  that  which  is  run 
ajfter.  It  is  not  the  appUuse  of  a  day»  it  is  not 
the  huzzas  of  thousands  that  can  give  a  mo- 
nhent's  satisfaction  to  a  rational  being:  that 
■aan^t  mind  must  indeed  be  a  weak  one,  and 
bii  ambition  of  a  most  depraved  sort,  who  can 
ba  captivated  by  such  wretched  allurements, 
ar  satisfied  with  such  momentary  gratifications. 
I  say  with  the  Roman  orator,  and  can  say  it 
with  as  much  truth  as  he  did,  "  Ego  hoc  ammo 
aemper  fui,  ut  invidiam  virtute  partam,  gloriam 
fioii  infamtam,  putarem :"  But  the  threats  have 
been  carried  further ;  personal  violence  has  been 
denounced,  unless  public  humour  be  complied 
with :  I  do  not  fear  such  threats :  I  don't  be- 
lieve there  is  any  reason  to  fear  them :  it  is  not 
the  genius  of  the  worst  of  men  in  the  worst  of 
times  to  proceed  to  such  shocking  extremities : 
but,  if  such  an  event  should  happen,  let  it  be 
ao ;  even  such  an  event  might  be  productive  of 
wholesome  effects ;  such  a  stroke  might  rouse 
the  better  part  of  the  nation  from  their  lethar- 
gic condition  to  a  state  of  activity,  to  assert  and 
execute  the  law,  and  punish  the  daring  and 
impious  bands  which  had  violated  it;  and  those 
who  now  supinely  behold  the  danger  which 
threatens  all  liberty,  from  the  most  abandoned 
licentiousness,  might,  by  such  an  event,  be 
awakened  to  a  sense  of  their  situation,  as 
drunken  men  are  often  times  stunned  into  so- 
briety. If  the  security  of  our  persons  and  our 
property,  of  all  we  hold  dear  and  valuable,  are 
to  depend  upon  the  caprice  of  a  giddy  multi- 
tude, or  to  be  at  the  disposal  of  a  giddy  mob ; 
if,  in  compliance  with  the  humours,  and  to  ap- 
pease the  clamours  of  those,  all  civil  and  poli- 
tical institutions  are  to  be  disregarded  or  over- 
thrown, a  life  somewhat  more  than  sixty  is  not 
worth  preserving  at  such  a  price ;  and  he  can 
■tf cr  oia  loo  ioodi  who  lays  down  bif  Ufa  in 


Addeftda  to  ihe  CasH 


[1404 


support  and  vindication  of  tba  t»l>cj,  the  go< 
Temmant,  and  the  constitutioo  ot  bia  couatrj."* 


The  Protest  mentioned  in  Mr.  Hargra? e^ 
note  to  Coke  upon  Littleton  inserted  in  p.  1096, 
is  printed  in  pp.  994,  dt  seq. 

The  Case  alluded  to  by  Mr.  HargraTe  ia  the 
same  note,  vvith  a  reference  to  3  Vrila.  151,  ii 
the  Case  of  John  Wilkes,  esq.  printed  p.  961. 

To  the  name  of  Mr.  Webb,  p.  983,  Seijcaat 
Wilson  has  observed  that  Mr.  Vf  ebb  had  beea 
a  common  attorney  all  his  life  before. 

Huckle,  one  of  the  journeymen  printen^ 

*  '*  An  old  Templar,  n  the  Public  Advertiser 
of  July  the  8th,  suspect  that  the  above  canast 
be  the  genuine  production  of  the  ffrave  perssa 
to  whom  it  is  publicly  ascribed.  Let  any  so- 
prejudiced  person,  says  be,  be  told,  that  tbs 
supposed  speaker  had  before  determined  not  ts 
affirm  the  outlawry  ;  and  then,  after  reading 
the  following  seotence,  let  him  refuse  his  as- 
sent to  the  proposition  I  mean  to  demanstrate, 
if  he  can. 

*^  ^  If  upon  the  whole,  after  the  closest  attea- 

*  tion  to  what  has  been  said,  and   with  tbs 
'  strongest  inctinai ion  in  favour  of  the  defen- 

*  daut,  no  argumenu  which  have  been  urged, 

*  no  cases  which  have  been  cited,  no  reasons 
« that  occur  to  roe,  are  sufficient  to  satisfy  ms 

*  in  my  conscience  anti  judgment,   that  this 

*  outlawry  should  be  reversed,  I  am  bound  to 

*  affirm  it. 

<* «  And  here  let  me  make  a  pause.' 

"  If  there  be  force  in  words,  or  propriety  ia 
language,  the  scope  of  that  passage  was  to  ia- 
flame  a  false  idea  that  the  outlawry  was  about 
to  he  affirmed.  I  will  ne^er  believe  then  that 
this  speech  was  pronounced  by  the  very  person 
Hrbo — after  his  pause — was  to  reverse  the  out* 
lawry. 

**  I  am  aware  that  it  has  been  extolled  as  a 
master-stroke  of  art ;  that  it  has  been  justified 
by  the  laws — of  oratory  and  the  drama  ;  and 
that  it  has  been  said,  the  suspense  was  intended 
only  to  heighten  the  effect. 

**  Let  it  i>e  the  object  of  a  designing  orator  te 
agitate  the  passions;  or  of  Bays's  drama  to 
elevate  and  surprise  ;  but  away  with  theatrical 
justice  from  the  bench.  Besides,  this  speech 
supposes  a  judge  to  inflict  for  his  amusement, 
or  to  shew  his  art,  a  punishment  which  the 
laws  could  not  inflict :  for  the  opinion  being 
established  in  the  opening  of  the  speech,  tbst 
the  outlawry  should  be  affirmed,  the  prisoner 
must  actually  feel  himself  an  ootlaw,  and  that 
too  for  as  long  a  continuance  aa  it  should  please 
his  lordship — to  p — a— u— s — a. — Could  I  be- 
lieve such  a  dramatic  speech  to  be  autbeatie, 
I  would  cry  out  in  the  words  of  the  poet  (sinaa 
quoting  is  the  mode) 

*  Cur  in  Theatrum  Cato  severe  Tenisti^' 

<*  My  wishes  would  find  an  answer  firom  Iha 
lamepoeU-V  Vcnistitttexiiea."   G€ni»Mati 


1405] 


cerning  Mr.  WUiei* 


bmiiglii  bis  BctioQ  agAinst  Money  the  m^- 
•cngcr.  (See  the  Case  of  Leficb  t>.  Money  und 
others^  p.  lOOh)  Upon  the  trial  of  the  cause 
before  lord  chief  ju»lice  Pratt,  it  was  proved 
that  the  plaintiff,  ^>bo  worked  for  ibe  weekly 
wages  of  a  fii^ainea,  had  been  taketi  iolo  custody 
by  the  defendant  upon  iusplcion  of  having' 
printe«l  the  North  Briton^  N°  45  ;  that  the  de- 
fendant kept  him  in  custody  abotit  six  hours, 
but  used  htm  very  ctvilly  by  treatio£r  bim  with 
beef-ttenks  nnd  beer,  so  that  he  suffered  very 
little  or  no  tlamnge*  Tlie  jury  found  a  Tcr- 
diet  for  the  pUiiniiff  with  300/.  damai^* 
Upon  a  niation  for  a  new  Iriil  for  the  ezces- 
•ireneti  of  the  ddmacfes,  ford  chief  justice 
Pratt,  in  deliveiingf  Win  opinion,  is  reported  to 
bave  eifprcased  himself  as  follows :  **  The  per- 
sona t  injury  done  to  the  jdaintiff  was  very 
smHll  \  so  (hat  if  tliejurv  bad  been  confined  by 
their  oath  to  consider  ifie  mere  perM»iitd  injury 
only,  perhaps  SO/,  damages  would  have  been 
thougfit  damages  suHiriect,  hut  the  small  in- 
jury dtme  to  the  plaintiff,  and  the  inconsidera- 
ble iie&!!t  of  his  slation  and  rank  in  life  did  not 
appear  to  the  jury  in  that  »trikin(f  light,  in 
which  the  threat  point  of  law  touchioj^  ihe  li- 
berty nf  the  subject  appeared  to  tbeoi  at  the 
trial.  I'hey  ttaw  a  magtslrate|ofer  all  the  kir^j's 
sul»)ecU,  I  xercisini;  arbitrary  power,  violating 
ilniriia  Charta,  and  atlrmjiiin^^'  lo  deatroy  itia 
liberty  of  the  kingdom,  by  insisting  upon  the 
legahfy  of  this  general  wiirrant  before  ihem: 
Ibey  heard  the  king'ft  counsel,  and  saw  the  so- 
licitor of  the  treasury  endea touring  to  support 
lod  mninlaio  Ihe  le^j^aiily  of  the  warrant  in 
Z  tyrannical  and  nevere  manner,  Tliese  are 
ibe  ideiis  which  atnick  the  jury  on  the  trial ; 
and  I  tliMik  Uiey  have  done  right  in  giving  ex- 
emplary thimagei*.  To  enter  a  man**  house  by 
virtue  of  a  n^im elects  warrant  in  order  to  pro- 
cure  evidence  is  worse  than  the  SpHoish  in- 
quifiiiion,  a  law  under  which  no  EngtiHliman 
would  wixh  to  live  an  hour :  it  wa^  a  most 
darmg  pubhc  attaik  iii^de  upon  the  lihei-ty  uf 
Ihe  luhjrct.  I  thonjjht  that  the  20th  chnpler 
pf  Magna  Cbarta,  **  Nulhiii  lihei'  homo  capi* 
mltir  rel  impristmetur,  Ike,  ni^c  tO[»er  eura 
ibimus,  kc,  ui«i  per  lei^Ale  judicium  (larium 
•uorutit  vel  per  h'tf^m  lerrv,"  Ike,  viliich  U 

r toted  agAJiiHt  aiburary  power,  wajt  violated, 
cannot  aay  ^hat  ibmuges  ]  shonht  have 
given  if  t  had  be  ^11  upon  ihe  jury,  but  I  directed 
and  told  I  hem  Ihey  were  not  bound  to  any  cer- 
tain ditinagesf  a^mnal  the  Kuliciior  genertira  ar- 
gumeni.  t'pon  the  who'e,  1  am  of  opinion, 
the  rlamitges  are  not  ixeesaitr/'  Am!  the  new 
irml  wttK  leluied.  In  Ihe  same  cHue  Ba* 
tJiurM  J,  aHid,  **  Thia  ia  a  motion  to  i^et  »«ide 
tiOeen  verdirtfi  in  effi^et ;  for  dH  the  other  prr- 
■ona  wliM  have  liniiii>ht  actionn  agatukt  these 
nii-*^rntst\K  h<m  huA  terdiiis  for  S>00/.  m  each 
c  lw4i  of  the  actiona  were 

Jul. 

AUinf  ihe  aame  intte  Arlhur  Beardmore,  an 
attorni*y,bioiic:h(  ur-  r\c\v^\\  of  tre«pa»a  and  falio 
imprimiimeiit  di.'  -in  Carrtngion  and 

fbrca  oiJivr  km^  gcrii  who,  under  a 


A,  D.  1765—1770.  [140(1 

warrant  of  lord  Hahfax  secretary  of  slato  [bj 
which  warrant  the  earl  did,  in  the  king^'s  name| 
authoiiie  and  require  them  (ihe  defendants), 
taking  a  constaUe  to  their  assistance,  to  iuak« 
strict  nnd  diligent  search  for  Ihe  said  Arthur 
Bettrdmore,  mentioned  in  the  said  warrant  to 
he  the  author,  or  one  concerned  in  the  writing 
of  several  weekly  very  seditious  pHpers,  in- 
tilled  the  Monitor  or  British  Freeholder,  N* 
,*i57,  :i58,  tJOO,  373,  376,  378,  579,  and  380; 
London,  printed  for  J,  Wilson  and  J.  Fell,  io 
l^4ternosler-row,  which  contained  gross  and 
scandalous  reflections  and  infectives  upon  hia 
majesty*s  goiernment,  and  upon  both  H onsets 
of  ParFiament,  and  him  the  said  Arthur  Beard- 
more  havtng  found  to  seize  and  apprehend,  and 
U>  bring  him  together  with  his  books  and  pa* 
pers  in  safe  custody,  before  the  said  earl  of  Hali- 
fax] had  arrested  the  plaintiff  and  detained  him 
in  one  of  their  bouses  for  six  days  (iifter  which 
he  was  discharged  upon  his  recognizance) 
and  had  searched  for,  seized  and  carried  away 
several  of  his  papers*  The  cause  was  tried 
before  lord  chief  justice  Pratt,  and  a  verdict 
was  found  for  the  plaintiff  nilh  1,000/.  da* 
mages.  A  motion  was  made  for  a  new  triaj^ 
upon  the  ground  of  excessivene«s  of  itamagesi 
but  a  new  trial  was  refused :  and,  by  the  Court, 
'*Can  we  say  that  1,000/,  are  monstrous  da- 
mages as  against  him^  who  baa  granted  an  il- 
legal warrant  to  a  messenger  who  enters  into  a 
man's  house,  and  pries  into  all  his  secret  and 
(irivate  affairs,  and  carries  him  fn>m  his  hou»9 
and  business,  and  imprisons  him  for  six  dayaf 
It  is  an  unlawful  power  assumed  b)'  a  great 
minister  of  state.  Can  any  body  say  that  a 
guinea  mr  diem  is  A)tiicient  damages  in  thit 
eKtraordiTtary  case,  which  concerns  the  liberty 
of  every  one  of  the  king*s  sulijects  ?  We  cannot 
say  the  damages  of  1^000^.  are  enormous/* 
See  3  Wils.  Hep.  314. 

The  action  which  W'ilkes  brought  against 
lord  Halifax,  (see  pp.  1070.  11G9,  et  *eq.)  after 
long  pendence,  (wee  2  WiU*  Rep.  256,)  ivas  on 
Friday,  Noveml>er  the  lOlh,  176U,  tried  in  tht 
court  of  Common  Pleas  at  Westminsler,  before 
lord  chief  justice  Witmot  and  a  spedsl  jiiry^ 
who  found  a  verdict  for  the  plaintiff  wiili 
4,0(K)/.  damagea.  (See  Almonds  *  Correspon- 
dence of  ilic  bite  John  W  ilkes,*  vol.  4,  p.  13.) 

The  following  account  of  the  Trial  ia  given 
in  the  Gen  tie  man 'a  Magazine  (or  November 
17<i9,  p.  55G: 

"  Came  on  in  the  court  of  Common  Pleaa^ 
before  lord  chief  justice  Wilmol,  the  long  ex- 
pected triiil  between  lord  Halifax  and  John 
Wilkes,  es<|. ;  relative  lo  the  seizure  of  hta 
papers,  and  the  impri!(ontnent  of  bia  pertOD. 
Serjeant  Glynn,  counnef  fur  llo*  plaintiff,  opened 
the  caoae,  and  in  a  very  elegant  and  apt  Hied 
manner^  cxploinetl  the  uncon*titutmnal  naturt 
of  the  iiyury.  He  was  answered  by  Serjeant 
Whitcikrr,  whu  endeavoureil  li»  prove,  thai 
wha  I  tant  did  was  not  of  that  uncoci- 

stitui  ikie  li  had  been  r«!^rw«ieex%^>N09d* 


1407] 


4^10  GEORGE  m. 


Addenda  to  the  Catet 


[1408 


that  it  WM  merely  officifti,  and  authorized  by 
am  in? ariable  aaccessioo  of  precedenta  from  the 
earliest  times. 

'*  Btr.  Biackmore,  one  of  the  kind's  messen- 
fers,  was  the  first  person  examined,  and  ho- 
nestly confessed,  that  imon  Mr.  Wilkes's  re- 
fusing to  him  the  keys  of  his  bureau,  he,  agree- 
ably to  his  orders,  pickt  the  lock,  and  swept 
away  every  paper  be  found. 

'*  Earl  Temple  was  about  half  an  hour  under 
•zaminatioD,  relative  to  his  beinff  refused  ad- 
■uttanoeto  Wilkes,  when  in  the  Tower. 

*<  Matthew  Browne,  who  was  servant  to  Mr. 
tFilkes,  at  the  time  his  house  was  rifled,  and 
was  to  have  been  examined  un  the  trial  in  be- 
half of  his  master,  was  by  some  unaccountable 
BMans  kept  out  of  the  way. 

<*  The  counsel  for  the  plaintiff  were  serj* 
Olynn,  seij.  Leigh,  and  Mr.  Leigh. — For  the 
defendant,  serj.  Whitaker,  serj.  Davy,  serj. 
Kares,  and  Mr.  Wallis. 

**  The  jury  who  served  upon  the  trial,  and 
who  after  a  most  excellent  charge  given  by  the 
Lord  Chief  Justice  to  give  liberal  but  not  ex- 
cessive damages,  founaa  verdict  for  the  plain- 
tiff with  4,000^  damages,  were,  George  Coul- 
■on  Smith,  esq.  of  Poplar ;  Sir  Edward  Bulk- 
ley  Batson,  bart.  of  Hatton- Garden;  David 
Walker,  esq.  of  Kensington ;  Edward  Buck- 
lev,  esq.  of  Essex  street,  Strand;  Nicholas 
ilorrisoo,  esq.  of  East- street;  Robert  Gary, 
«sq.  of  Hampstead;  Egbert  Hucks,  esq.  of 
Great  Russel-street ;  Josiah  Holford,  eso.  of 
Southampton -row  ;  John  Gould,  eM).  of  Uart^ 
atreet ;  Samuel  Hartley,  esq.  of  Lincoln's- Inn 
fields ;  Heneage  Robinson,  esq.  of  Hackney ; 
and  a  Talesman,  viz.  Robert  Gibson,  of  Clerk- 
anwell,  who  on  account  of  defaulters  in  the 
apecial  jury,  was  chosen  out  of  the  common 
jury,  as  the  law  provides.  It  is  remarkable, 
that  out  of  the  48  freeholders  first  struck  on 
this  jury,  17  were  voters  for  sir  William  B. 
Proctor,  [the  candidate  who  opposed  Wilkes  at 
the  election  for  Middlesex,]  neither  of  whom 
however  appeared. 

**  The  verdict  was  much  less  than  the  friends 
of  the  plaintiff  expected,  and  so  little  t(»  the  sa- 
tisfaction Mi  the  populace,  that  the  jurymen 
were  obliged  to  withdraw  privately,  for  fear  of 
being  insulted.  It  is  reported  that  they  were 
much  dividetl ;  some  being  for  more,  some  for 
less  ;  but  it-  seems  to  have  operated  in  some 
meaxure,  that  by  the  minute  book  of  the  trea- 
sury, his  majesty's  pleasure  had  been  signified, 
that  all  expences  incurred  in  consequence  of 
actions  or  prosecutions  relative  to  this  affnir, 
should  be  defrayed  by  the  crown  :  and  that  as 
a  farther  security  to  the  earl  of  Halifax, 
his  lordship  had,  previous  to  his  resig 
nation  in  174ii,  olitainrd  a  privy  seal,  thai  is, 
a  warrant  si<rned  by  I  he  Lord  Privy  Seal,  by 
way  of  iudemniHration  for  whatever  damiitfes 
Mr.  Wilkes  tdiould  recover,  which  warrant 
was  signed  by  his  grace  of  Marlborough,  whu 
then  held  the  ufiice. 

**  S4»roe  altercation  is  said  to  have  hanpened 
k  court  between  col.  O w,  [Onslow]  and  a 


Tery  popular  seijeant,  of  which  the  judge  ex- 
prised  his  dislike  in  very  significant  termi, 
and  threatened  dismissing  the  court  upon  a  liks 
oflence.  His  lordship's  behaviour  throughmrt 
the  whole  of  this  very  delicate  aflTair,  gsts 
general  satisfaction.  Nothing  could  exceed  fail 
lordship's  impartiality  in  summini;  up  the  evi- 
dence, nor  any  thing  lie  pronounced  more 
spirited.  The  damages  were  laid  for  20,0004 
but  it  has  been  said,  that  it  is  better  for  Mr. 
Wilkes  that  the  jury  gave  but  4,000/.  becauis 
the  latter  he  may  reenter,  but  the  t'ormer  QUgbt 
have  been  thought  excessive." 

In  the  <  Memours  of  the  Life  of  the  right  be- 
nourable  sir  John  Eardley  Wilmoi,'  &c.  Ilr. 
Wilmot  has  published  the  following*  aocouat  uf 
the  substance  of  what  the  learned  judge  said 
in  his  charge  to  the  jury  ;  of  which  account, 
however.  Sir.  Wilmot  observes,  that  beis^ 
chiefly  taken  from  the  publications  of  the  day, 
it  probably  contains  only  an  imperfect  aketcbof 
the  learned  judge's  address. 

*'  The  form  of  the  declaration,  is  for  birakiig 
and  entering  the  plaintiff's  dwelling  liousr, 
breaking  0|)en  his  knsks  and  doors,  destroyia^ 
bis  cabiiiets,  boxes,  &c.  taking  away  his  papers 
and  converting  them  to  their  own  use ;  for 
assaulting  the  plaintiff,  and  seizing  imd  im- 
prisoning his  person  several  days  in  the  Tower: 
but  the  substantial  part  of  this  action,  is  far 
taking  his  person  and  papers  without  legal 
authority.  Now  there  can  be  no  doubt  what* 
ever,  but  that  the  imprisonment  of  bis  person 
and  the  seizing  of  his  papers  was  illegal,  be- 
cause there  is  no  doubt  but  that  the  warrant, 
whereby  the  plaintifi^  was  imprisoned  and  bis 
papers  seized,  was  illegal :  it  has  underffone 
the  consideration  of  this  Ck)urt,  and  likewise  of 
the  Court  of  King's- bench,  and  has  very  pro- 
perly been  deemed  so  by  every  judge  wlio  has 
seen  it ;  and  there  is  no  pretence  or  foundaiioa 
for  the  defendant  in  this  cause  to  make  any 
stand  against  this  artion  by  way  of  JMstificatiuo 
in  the  way  he  has  done,  liecause  it  clearly  and 
manifestly  is  an  illegal  warrant,  couirary  to  the 
common  law  of  the  land :  and  if  warranis  of 
this  kind  had  been  found  lo  be  leLT^l,  I  am  sure, 
as  one  of  the  plaintiflf's  counsel  observed,  it  is 
extremely  proper  for  the  leiJislaiure  of  this 
kingdom,  to  interpose  and  provide  a  remedy  ; 
because  all  the  p'-ivate  papers  of  a  man  Ub  well 
as  his  liberty,  would  he  in  the  power  of  a  seere- 
tary  of  state,  or  any  of  his  servants.  l>)f  law 
makes  no  difference  between  great  and  petty 
officers.  Thank  God,  they  are  all  anienablt  to 
justice,  and  ihe  law  \s\.\  reach  them  if  tlie^  step 
over  the  boundaries  which  the  law  has  pre> 
scribed. 

*<  But  though  this  warrant  is  illegal,  yet  il 
appears  from  the  evidence,  that  il  was  not  sf 
the  defendant's  own  original  framing:  it  was 
in  couformity  to  many  precedents  iu  ihp  mc*^ 
tary  of  slate's  office  from  the  time  of  the  Ra- 
voiuti'in." 

[The  precedents  were  then  r«ad|  abmU  fiM^ 


1409] 


eonceming  Mr,  WiUe*, 


A.  D.  Hfis— mo. 


[1410 


In  number^  and  many  mure  were  proditcetl  : 
|he  ffiiletirje  was  »tale<l,  and  the  pniof  re- 
ferred tttt  iliAl  tlie  plaintiff  l)«il  oblAineft  a  rer- 
joict  of  1,000/.  iigainst  Mr.  Webb,  for  ibe  seizure 
of  hiii  papers*    Tlie  learued  judg^  then  |>ro* 

eedeil :] 

•  **  T\w  purpose  of  brinjjing  ihis  efidencc  is  to 
lendearnur  lo  take  off  the  impuuiion  of  mMice, 
mw\  to  shetv  yon,  tliat  tt  n^is  not  done  witliout 
_  recedetils  •,  and  that,  if  it  ^^a^  wrrong,  it  was 
it  leant  a  pn?cedcnled  iiii*tinke. 

Ni>w»  in  tbe  tirsi  (iluce,  it  appears  tnnat 
dearlv,  that  tlie  plaintiff  has  been  taken  up  tin- 
laiTrfuUy^  lus  been  imprisoned  seven  day*,  liiis 
Jiad  bis  pfipef!*  Hei/tif  *'\;nTiitie<l,  and  rilled  ; 
tbat  the&c  papers  b^'.  wise  improperly 

nnd  illegally  taken  (K^i  made  use  of;  and 
liy  Ibe  letter  tbat  has  been  rend  to  you.  It  ap- 
that  »ucli  of  them  only  were  lo  be  re- 
,  ag  could  not  U^nd  lo  prove  the  charge 
t  him.  As  to  the  declaration  of  breaking 
an<J  doorSy  theae  are  only  formal  i^ordti ; 
Und  in  asicasiiK^  Ibe  dnmaff  es,  you  are  uot  par- 
ti    '     '  '  them  ;  (he 

il  ini prison ' 
fiiit  I  i.Mi  .«i>:^it  II  iM\  s,  iinii   uola>vfullv 

ai'izri  ''rs;    and  there  is  no  doubt  but 

that  u.vt^  .«.,^  been  a  plain  and  (^ro9«  injury 
done  him«  tvhich  \»  likewise  a  plain  aod  grots 
fiujtttiou  inf  tlip  laws, 

*'  K-r  of  doinj^  it  ia  also  proper  to 

he  Co  Jt  has  been  proved  to  you,  that 

there  was  an  order  iti  the  warrant ,  directing 
^liim  to  be  kept  *  close*  prisoner  ;  it  appears  tbat 
it  bus  been  wmni  to  insert  these  woras,  *  cIum 
€ontint;nienl|'  even  for  libels  ;  but  the  warrant 
was  accompanied  with  a  verbal  or' 
not  by  the  defendant^  but  by  lord 
Ihut  3    'i  ,  ■        hould   be  admitted   to  see   tlie 

flail  I  I  tx  a  thing  extremely  unlawful, 

t  luusi  liiMiujietved,  hitwever»  that  on  Mean  a»  it 
was  known  his  friends  were  not  to  see  huu, 


urcd   lo  rectify  it;    begot 
Inxed,  and  saot  word  tbat 
''  <  might  see  him. 
uii»  been  metitioned  and  tn> 

I  lu:  t'.liiJiiivt' oft  ktstiidv  :    liiit 


l\r,  VVcbJ 

the  verbal! 

the  plainii 

.    *^  .4noll 

liated  on, 

1  own  there  does  i  {- 

Ibrence  which   is  t^  ht 

j)lainliff  waa  taken  up,  a  Habeas  Corposs  was 

applied  for  ;    liut  ihen  it  was  apptiol  fnr  im- 

|»roperly.     ltd  it^artbati)  y 

^f  state  knew  r  i  the  warraii 

lug  the  pldintill  lo  ihe  Tower  was  prtpArtiJ  ^id 

l#tgtied  :  there  waa  nome  rumour  about  it,  but 

4he  iecrctariea  of  •tale  did  not  know  it ;  ami  I 

■do  not  sea  ibat  any  thing  has  been  proved  like 

«^"  '---•—  r  -       ^'  -  7"iintirf:     I  never 

;  u)  eoforce  or  eir< 

i      ,  • '"^^ 

ct^ely  o«  I  ( 

,the  I'rMi-i 

If  ■  ■. 

so,  It  V. 
atioo  of  < 
»ath,  I  caiiuoi 

VOL.  MX. 


%ay  i  ifr«a  auy  iut^utiou  vf  ill  i 


nimge  ;  there  does  not  tieem  to  me  to  be  any  ag* 
gravation  arising  out  of  this  malu-r ;  nn  the 
contrary,  Mr,  Stanhope,  one  of  the  witn€»»Ws, 
swore,  that  the  pt .tin tiff  said  the  defendant  be- 
haved like  a  nnbleman,  and  liiat  he  should  al- 
ways regard  him  (nr  it, 

*♦  There  ia  another  thing  1  must  mentioo  to 
you^that  no  prejudices  of  whtitsoever  kind 
should  indueoce  you.  |(  i^  my  upniion,  that 
yon  all  come  here  as  unprejvidiccd  and  dispaa- 
siouate  to  try  this  cauac  as  1  myself  do  i  ^nd 
ihcreforcs  all  thinga  said  out  of  doors,  all  papers 
and  pamphlets,  are  t(»  be  totally  luid  out  of  the 
mtDoa  both  of  judge  and  jury  ;  they  must  be 
(leaf,  dumbf  and  blind  to  every  thing  but  the 
evidence  before  them;  they  must  dive^  their 
rninds  of  every  thin^;  that  might  have  a  ten- 
tleucy  to  influence  th^m.  Gentlemen,  I  siieak 
for  myself  as  well  as  tor  y  ou  :  I  never  reau  any 
thing  about  what  may  come  before  me  in  a 
court  oi  justice  ;  1  keep  my  mind  free  from 
evi       i  of  the  kind.    There  is  often  a  ne- 

rt  i*  to  look  into  the  law  :  hut  I  never 

auftei  m)  uund  to  be  biaA&ed  by  repot ts,  or  such 
papers  or  pamphlets  as  are  written  with  a  view 
lo  pervert  justice. 

*"  Much  has  been  said  on  both  sides,  which 
ilof-  — i  ....*. ...I, ply  apply  to  this  csiuse. — But 

it  1  ,  and  w  hut  arises  necessarily 

auit .;.,..,:......-  .J  liomthc  evidence,  upon  which 

you  ajcto  lorm  your  judgment. 

*'  You  all  very  well  know  what  deferenoe  1 
always  pay,  and  ever  will,  to  that  p«rt  of  the 
olTice  of  a  jury  wliich  properly  belongs  to 
them,  la  regard  to  the  law,  I  have  alwaya 
been  as  tenaciotis  of  the  proper  function  of  a 
l»enn  of  that  of  ihe  jury,  I 
i  have  the  honour  of  executing 
the  othce  ol  a  judge,  attempt  to  controul  or  in- 
Hucnoe  their  minds  in  respect  of  damages; 
but  only  submit  to  them  such  observations  oa 
occur  to  me  upon  the  evidence;  and  a<  the  gen- 
tlefDen  at  the  bar  have  industriously  avoide^l 
pointing  at  any  particular  sum  you  should 
give,  I  will  as  industriouily  avoid  pointing  at  il 
too,  and  leave  it  for  you  to  determine  ax  you 
shall  think  Droorv  fri  liL'.^rd  to  facts,  yon  are 
lo  take  .  of  this  case  iuto 

your  C":  lien  a  special  jury 

of  the  tirct  rank  lu  tiie  cuuutry  appearsi,  there 
is  Keaa  oecewity  fora  judge  to  descant  upon  the 
nature  and  circumxtauces  of  a  cause,  than  there 
is  to  an  inferior  rank  of  mcn»  per  ha  pa  not  so 
well  acquainted  with,  nor  so  well  (qualified  to 
balance, such  a  eaute  as  this. 

•»TIh  ■     ..,•■  clearly  unlawful,  you 

willeoi  ikJigea.    If  thedefenUant 

Imrf  -  i  V  imiiL  and  had  firat  invented  and 

CO  jirranl»  it  wou'd  cerUmly  have  been 

a  pi,M.,^.....™  aggravalioo;  hut  you  »ee  from 
the  ividffoce,  Uiat  tfic  office  has  been  in  tha 
haNt  and  prariirp  of  aiAniUiis  iTiene  war- 
raotsfrom  I  '*  time: 

llirv  h^M'  t.i  t,  of  thi« 

Uj  its  bi»t  friend*  ^m\  ihe  greatest 
!  have  never  before  undergunc  any 
ttiiimadversioQ  j  and  tUercfofe  wiiAl^«*  ^cmk 

4X 


1415] 


4^—10  GEORGE  III. 


ibis  gentleman  hai  been  ffuilty  of,  he  hu  erred 
witli  all  the  secreUriet  of  state  from  that  time. 
There  w  not  the  least  foondation  to  presome 
any  evil  design  in  the  defendant  ajg^nat  the 
liberties  of  the  people.  The  secretaries  of  state 
are  not  bred  to  the  law,  and  it  would  be  an  act 
of  injustice  to  consider  a  pfecedented  mistake, 
•s  a  tyrannical,  depraved,  corrupt  act  of  op- 
pression ;  and  you  nod  from  the  evidence,  that 
they  applied,  from  time  to  time,  to  the  lawyers 
•f  the  crown  ;  and  when  some  question  aroae 
about  the  warrant,  and  a  warrant  was  propoaed 
with  Mr.  Wilkes's  name  in  it,  it  was  opposed 
by  the  solicitor  of  the  treasury,  who  said,  <  this 
IB  the  course  of  office,  it  has  been  approved  of 
by  the  crown-lawyers,  and  I  cannot  consent  to 
mny  innovation.' 

«'  But  however  this  proceeding  might  be  in 
the  course  of  office,  and  however  precedented, 
it  was  certainl  V  iHegal :  you  must  therefore 
find  a  verdict  for  the  plaintiff,  and  g^e  him 
such  damages  as  under  the  circumstances  of 
this  case  you  are  of  opinion  he  is  entitled  to.  I 
will  go  further  and  say,  that  you  are  not  to 
confine  yourselves  strictly  to  the  imprisonment 
of  seven  days,  and  the  mere  aeizing  of  hn  pa- 

r;  but  you  should  give  *  liberar  damages  ; 
liberal,'  1  do  not  mean  *  excessive.'  *  £x- 
*  cessus  in  jure  reprobatur.'  The  law  always 
condemns  excess  ;  it  must  be  within  the  rules 
of  reason :  the  circumstances  of  the  case  are  to 
govern  it,  and  as  nearly  as  yon  can,  you  will 
give  that  satisfaction  and  compensation,  which 
may  bear  a  proper  proportion  to  the  injury  and 
to  the  nature  of  the  injury  received,  under  all 
its  circumstances." 

In  the  Annual  Register  for  the  year,  the  fol- 
lowing paragraphs  are  subjoined  to  a  brief  ac- 
count, agreeing  with  that  which  is  given  above, 
of  this  trial : 

"  Several  gentlemen  gave  two  guineas  to 
obtain  admittance  into  the  court  early ;  at  about 
ten  the  price  fell  to  a  guinea,  and  at  three  in 
the  afternoon  people  got  in  for  five  and  three- 
pence. 

"  Copy  from  thb  Treasurv  Minuts-Book, 

PRODUCBD  ON  THE  TrIAL. 

"Whitehall,  Treasury-Chamber,  Slst  May, 
1765.  Present,  Mr.  Grenville,  lord  Nortb , 
Mr.  Hunter,  and  Mr.  Harris. 

**  Mr.  Chancellor  of  the  Exchequer  signifies 
to  my  lords  his  majesty's  pleasure,  that  all  ex- 
i>ences  incurred,  or  to  be  incurred,  inconse- 
quence of  actions  broufrht  agaiust  the  ear!  of 
Halifax,  one  of  his  majesty's  principal  secre- 
taries of  state,  the  undersecretaries  and  mes- 
sengers, and  the  solicitor  of  this  office,  for  pro- 
ceedings had  by  them  in  executing  the  busi- 
ness of  their  respective  offices  against  the  pub- 
lisher of  several  scandalous  and  seditioas  libels, 
Aonid  be  defrayed  by  the  crown ;  and  that  a 
sufficient  sum  of  money  should  hew  from  lime 
totime,  issued  tothaioUdtorof  flie  trctniry 
frrthatpurpoM.       f 


Addenda  to  the  Cases  [1416 

"  Read  a  paper  from  Mr.  Webb,  aiatinf 
what  the  expenoes  are  likely  to  be,  nod  that  a 
farther  aom  of  3,000/.  may  probaUj  be  wanted 
for  diachaiigini^  the  same. 

"  <  Issue  to  Mr.  Webb,  from  time  to  time,  as 

*  the  said  service  may  require,  a  amn  not  ex- 

*  ceeding  3,0001.  directing  him  to  apply  the 

*  same,  aeoording  to  bia  majestj'a  commands, 

*  to  disebaiga  the  aeveral  expenoes  above-msn- 
•tioned."*  Anmial  Register  1769,  Chioaicle, 
p.  150. 

I  comectore  tiiat  the  foliowiog[^  psssage  is 
the  cdebrated  <  Letter  concemingTibeb,  War- 
rants,' &c.  from  the  <  Fathor  of  Candour,'  re- 
lates to  this  suit :  • 

«<  When  I  see  a  aeeretanr  of  aUte  obatinatdy 
fitting  with  the  laws  of  his  oooatry,  psiog 
privilege  to  the  utmost,  notwithatanding  it  was 
the  gronnd  of  the  roval  complaint  to  the  Con* 
mena  agaiaat  Mr.  Wilkes,  availing  bimaelf  of 
every  practicable  eaaoign,  and,  at  length,  with- 
standing ail  the  proceas  and  penaltiea  of  a  couit 
of  juatice,  to  avoid  trying  the  right  of  a  traas- 
action  which  liaa  never  jH  been  directly  given 
up ;  and  perhaps  waitmg  for  an  outlawrv  of 
his  prosecutor,  in  order  then  to  mock  the  jus- 
tice of  his  country  still  more,  b^  entering  so 
appearance  to  the  suit  against  him,  at  a  time, 
when  bia  praaecutor  can  no  longer  go  on  with 
it;  1  protest,  although  an  old,  aober,  private 
individual,  that  I  lose  my  temper,  look  for  re- 
dress from  soma  other  auarler,  and  foel  myself 
inclined  to  join  in  an  addraaa  to  the  Commeai 
of  England,  to  take  up  the  consideration,  aD<l 
go  on  with  the  prooecutkm  of  that  cause,  which 
every  freeman  is  iotereated  in,  and  which  the  o^ 
dinary  courts  of  justice  have  been  so  kmg  foiled 
in.  1  remember  what  is  Mr.  Locke's  defini- 
tion of  liberty ;  what  he  makea  the  province  of 
a  court  of  judicature ;  what  the  extent  of  the 
legisUtive  power ;  and  what,  according  to  him, 
creates  a  diasolution  of  all  govonment*:  "who, 
under  auch  circumstances,  would  blame  a  jury, 
should  they  at  last  have  such  a  secretary 
brought  before  them,  for  giving  extraordinary, 
exemplary  damages,  tn  ^errorem .'  Especially 
if  they  should  have  all  imaginable  foundation 
for  believing  the  judgment,  upon  such  verdict, 
will  be  delayed  by  every  aitifice  of  bills  of  ex- 
ceptions, special  verdicta,  motions  for  new  trial, 
writs  of  error,  &c.  that  can  be  practised,  is 
order  to  prevent  all  effect  from  it,  and  to  over- 
bear, in  the  long-run,  the  poor  prosecutor  by 
dint  of  expence." 

Concerning  exemplary  or  vindictive  da- 
mages, upon  which  subject  diflTerent  judges  hsTS 
held  different  opinions,  see  the  Cases  of  Grey 
o.  Grant,  3  Wils.  Rep.  S52T  Redshaw  v.  Brook, 
and  others,  S  Wils.  Rep.  405,  and  the  caaea  re- 
ferred to  in  Comyna'a  Digaat,  Trial,  (E.) 

On  Nov.  14, 1768,  Wi1k«  piewnted  to  the 
House  of  Commons  a  Petilkm,  complainiag^ 
among  various  alleged  grievmoes,  of  lord  Mws 
fteld*0  hsLiiag  mx&AAy  altaNd  tha  RooHi 


1417] 


eoneernh^  Mr.  Wilies, 


K 


see  pp.  1075  et  teqA :  ami  charging,  that  Mr.  | 
jMiilip  Carteret  Webb,  aolicitor  to  the  treasary, 
had  suborned  and  bribed  one  Michael  Carry 
to  give  evidence  against  the  petitioner  at  the 
trials,  according  to  the  directions  of  the  said 
Webb.  Upon  this  Petition  divers  proceedinfri 
were  had.  In  support  of  it,  and  against  it* 
counsel  were  heard  and  witnesses  examined  ; 
and  on  the  first  of  February,  1769,  the  House, 
after  referring  to  the  Report  Arom  the  Com^ 
mittee,  appointed  to  enquire  into  the  state  of 
the  jails  or  the  kingdom,  relative  to  the  accu- 
sation against  lord  chief  justice  Eyre,  together 
with  the  Resolutions  of  the  Committee,  and 
the  proceedings  of  the  House  thereupon,  [tee 
▼ol.  17,  p.  619] 

Resolved,  *'  That  the  two  orders  made  by  lord 
Mansfield,  chief-jiistice  of  the  Court  of  Kmg't- 
bench,  for  the  amendment  of  the  informations 
eihibited  in  the  said  Court  against  Mr.  Wilkes, 
were  according  to  law  and  justioe,  and  the 
practice  of  the  said  Court,  and  confirmed  by 
the  subsequent  determination  of  the  said  Court; 
and  that  the  complaint  of  Mr.  Wilkes,  in  re- 
spect thereof,  is  rrifoloua;  and  that  the  asper- 


A.P.  176S-1770.  [1418 

tioiia  mmm  the  wtiA  Chief  Joatioe,  fbr  making 
the  said  two  ordeit,  thereby  ooDveyed,  aro  ut- 
terly groundloB,  and  tend  to  prejudice  the 
minds  of  the  people  agalifit  the  administntioa 
of  public  jostiee.^ 
,  Alio  on  the  fame  day, 
««  Resolved,  That  Mr.  Wilkes  hu  not  made 
good  his  cheife  against  PhiHp  Carteret  Webb, 
esq." 

ADDENDUM 

TOTRB 

Case  op  Elizabeth  Canning. 
In  the  Gentleman's  Magaaine  for  Aogosl, 
1773,  it  is  stated  that  Elisabeth  Canning  died 
at  Weathersfield  in  Coonectieot,  6n  the  99d  of 
Joly  in  that  year.  In  the  Magaiine  the  ao* 
oooni  of  her  death  is  ecoonpanied  with  the 
obserf  ation  that  *<  Eetwithstanding  the  many 
strange  circumslaiieeB  of  her  stofy,  none  is  so 
strange  as  that  it  should  not  be  discof  ered  in  so 
many  yean  where  she  had  concealed  berstf, 
during  the  time  she  had  inrariably  dedarod 
she  was  at  the  house  of  mother  WeOs.'* 


END  OF  VOL.  XIX. 


Printed  by  T.  a  HaosBitl,  Peteriwfough-Gout, 
Wsst^Htrew,  lioodea.