THE PREFACE
In the Preface to my former volume I endeavoured to give my readers some idea of the English Crown Law, in order to shew how consistent it was with right reason, how perfectly just, and at the same time how full of mercy. In this, I intend to pursue the thread of that discourse, and explain the methods by which Justice in criminal cases is to be sought, and the means afforded by our Law to accuse the guilty and to prevent punishment from falling on the innocent. In order to do this the more regularly, it is fit we begin with the apprehension of offenders, and shew the care of the Legislature in that respect.
In sudden injuries, such as assaults on the highway, attempts to murder or to commit any felony whatsoever, there is no necessity for any legal officer to secure the person who is guilty, for every private man hath sufficient authority to seize and bring such criminal, either to a constable or to a Justice of the Peace, in order to have the fact clearly examined and such course taken therein as may conduce to the impartial distribution of Justice. And because men are apt to be scrupulous of interesting themselves in matters which do not immediately concern either their persons or their properties, so the Law hath provided punishments for those who, for fear of risking their private safety or advantage, suffer those who offend against the public to escape unpunished; hence hundreds are liable to be sued for suffering a robber to escape, and that method of pursuit which is called hue and cry is permitted, if no probable way may be left for felons to escape. Now a hue and cry is raised thus: the person robbed, for example, goes to the constable of the next town, tells him the case, described the felon, and the way he went. Whereupon the constable, be it day or night, is to take the assistance of those in his own town, and pursue him according to those directions immediately, at the same time sending with the utmost expedition to the neighbouring towns, who are to make like pursuit, and to send like notice until the felon be found.
So desirous is our Law of bringing offenders to Justice, and of preserving the roads free from being infested with these vermin. For the better effecting of this, besides those means prescribed by the customs of our ancestors, of later times rewards have been given to such as hazarded their own persons in bringing offenders to justice, and of these, as far as they are settled by Acts of Parliament and thereby rendered certain and perpetual, I shall speak here; though not of those given by proclamation, because they being only for a stated time, people must hereafter have been misled by our account, when that time is expired.
Highwaymen becoming, some time after the Revolution, exceedingly bold and troublesome, by an Act made in the reign of William and Mary, a reward of forty pounds is given for apprehending any one in England or Wales, and prosecuting him so as he be convicted; which forty pounds is to be paid by the sheriff on a certificate of the judge or justices before whom such a felon was convicted. And in case a person shall be killed in endeavouring to apprehend or making pursuit after such robbers, the said forty pounds shall be paid to the executors or administrators of such persons upon the like certificate. Moreover, every person who shall take, apprehend, or convict such a person, shall have as a reward the horse, furniture, arms, money or other goods of such robber as shall be taken with him, the right or title of his Majesty's bodies politic or corporate, lords of manors, or persons lending or letting the same to such robber notwithstanding; excepting only the right of those from whom such horses, furniture, arms, money, or goods were before feloniously taken.
A like reward of forty pounds was, by another Act in the same reign, given to such as shall apprehend any person convicted of any capital crime relating to the coin of this land.
By an Act also made in the reign of the late King William, persons who apprehend and prosecute to conviction any who feloniously steal goods to the value of five shillings, out of any house, shop, warehouse, coach-house or stable, or shall assist, hire or command any person to commit such offence; then such person so taking as aforesaid, shall have a certificate gratis from the Judge or Justices, expressing the parish or place where such felony was committed; which certificate shall be capable of being once assigned over, and shall exempt its proprietor or assignee from all parish and ward offices, in the parish or ward wherein the felony was committed.
By an Act made in the fifth year of the late Queen, persons apprehending one guilty of burglary, or of feloniously breaking into a house in the day-time, and prosecuting to conviction, shall receive over and above the certificate before mentioned, the sum of forty pounds, as in the case of apprehending an Highwayman.
By an Act passed in the sixth year of the late King, whoever shall discover, apprehend, or prosecute to conviction without benefit of clergy, any person for taking money or other reward, directly or indirectly, to help persons to their stolen goods (such persons not having apprehended the felon who stole the same, and brought him to trial, and given evidence against him) shall be entitled to a reward of forty pounds for every offender so convicted, and shall have the like certificate, and like payment without fee, as persons may be entitled to for apprehending highwaymen.
The next point after offenders are once apprehended, is to carry them before a proper magistrate, viz., a Justice of the Peace, and this leads us to say something of the nature and authority of that office. My Lord Chancellor, or Lord Keeper of the Great Seal, the Lord High Steward of England, the Lord Marshal, and the Lord High Constable, each of the Justices of the King's Bench, and as some say, the Lord High Treasurer of England, have, as incidental to their offices, a general authority to keep the peace throughout the realm, and to award process for their surety thereof, and to take recognizances for it. The Master of the Rolls has also a like power, either incident to his office, or at least by prescription. As to the ordinary constructors or Justices of the Peace, they are constituted by the King's Commission, which is at present granted on the same form as was settled by the Judges in the 33rd Year of Queen Elizabeth, by which they are appointed and assigned every one of then jointly and separately to keep the King's peace in such a county, and cause to be kept all statutes made for the good of the peace and the quiet government of the Kingdom, as well within liberties, as without, and to punish all those who shall offend against the said statutes, and to cause all those to come before them, or any of them, who threaten any people as to the burning their houses, in order to compel them to be kept in prison until they shall find it. As to the other powers committed to these justices, it would be too long for me to explain them, and therefore after this general Act, I shall go on to take notice of the manner in which the person accused is treated, when brought before them.
First the Justice of Peace examines as carefully as he can into the nature of the offence, and the weight there is of evidence to persuade him of the just ground there is for accusing the person before him; and after he has thoroughly considered this, if the thing appear frivolous or ill-grounded, he may discharge the person, or if he think the circumstances strong enough to require it, he may take the bail of the party accused, or if the nature of the crime be more heinous, and the proof direct and clear, he is bound by an instrument under his hand and seal called a Mittimus, to commit the offender to safe custody until he is discharged according to Law. In carrying to prison for any crime whatsoever, if the party so carried escape himself, or if he be rescued by others, he and they are guilty of a very high misdemeanor, and in some cases, those who assist in making the rescue may be guilty of felony or high treason. But if a prisoner be once committed to gaol for felony, and afterwards break that prison and escape, such breach of prison is felony, by the Statute De Frangentibus Prisonam, and shall be tried for the same as in other cases of felony, and suffer on conviction. My readers will find mention made of a case of this nature in respect to one Roger Johnson, who some years ago was tried for breaking the prison of Newgate, while he remained a prisoner there under a charge of felony, and making his escape; but so tender is the English law that when there appeared a probability that one Fisher (not then taken) broke down the wall of the prison and that Johnson took advantage of that hole and made his escape, he was found not guilty, for want of due proof that he actually did break that hole through which he escaped.
The prisoner being in safe custody, a bill is next to be preferred to the grand jury of the county, in which the nature of the crime is properly set forth, and after hearing the evidence brought by the prosecutor to support the charge, they return the bill to the Court, marked Billa Vera or Ignoramus. In the first case the prisoner is required to be tried by the petit jury of twelve, and to abide their verdict; in case of the latter, he is to be discharged and freed from that prosecution. But the grand jury must find or not find the bill entire, for a Billa Vera to one part and an Ignoramus to another renders the whole proceeding void and is of the same use to the prisoner as if they had returned an Ignoramus upon the whole.
Many without knowing the Law have taken occasion to be very free with its precedents, and to treat them as things written in barbarous Latin, in which an unreasonable, if not ridiculous nicety is sometimes required. But when this comes to be thoroughly examined, we shall find that their proceedings are exactly conformable to reason, for if care and circumspection be necessary in deeds and writings relating to civil affairs, ought it not a fortiori to be more so where the life, liberty, reputation and everything that is dear and valuable to the subject is at stake? Therefore, since there are technical words in all sciences, surely the Law is not to be blamed for preserving certain words to which they have affixed particular and determined meanings for the expressing of such crimes as are made more or less culpable by the Legislature. Thus Murdravit is absolutely necessary in an indictment charging the prisoner with a murder; Caepit is the term made use of in indictments of larceny. Mayhemaivit expresses the fact charged in an indictment of maim; Felonice is absolutely necessary in all indictments of felony of what kind soever; Burglariter is the Latin word made use of to express that breaking which from particular circumstances our Law has called burglary, and appointed certain punishment for those who are guilty thereof. Proditorie expresses the Act in indictments of treason, and even if these are not Latin words, justified by the usage of Roman authors, the certainty which they give to those charges in which they are used, and which could not be so well expressed by circumlocutions, is a full answer to that objection, since the proceedings before a Court aim not at elegancy, but at Justice. But let us now go on to the next step taken to bring the offenders to Judgment.
The bill having been found by the grand jury, the prisoner is brought into the Court where he is to be tried, and set to the bar in the presence of the judges who are to try him. Then he is usually commanded to hold up his hand, but this being only a ceremony to make the person known to the court it may be omitted, or the person indicted saying I am here, will answer the same end. Then the proper officer reads the indictment which has been found against him, in English, and when he hath so done, he demands of the prisoner whether he be guilty or not guilty of the fact alleged against him, to which the prisoner answers as he thinks fit, and this answer is styled his plea. That tenderness which the English Law on all occasions expresses towards those who are to be brought to answer for crimes alleged against them, requires that at his arraignment, the prisoner be totally free from any pain or duress which may disturb his thought and hinder his liberty of pleading as he thinks fit, and for this reason, even in cases of high treason, irons are taken off during the time the prisoner is at the bar, where he stands without any marks of contumely whatsoever.
But in case the prisoner absolutely refuses to answer, or in an impertinent manner delay or trifle with the court, then he is deemed a mute; but if he speaks not at all, nor gives any sign by which the Court shall be satisfied that he is able to speak, then an inquest of officers, that is of twelve persons who happen to be by, are to enquire whether his standing mute arises from his contempt of the Court, or be really an infirmity under which he labours from the hands of God. If it be found the latter, then the Court, as counsel for the prisoner, shall hear the evidence with relation to the fact, and proceed therein as if the prisoner had pleaded not guilty; but if, on the contrary, the Court or the inquest shall be satisfied that the prisoner remains a mute only from obstinacy, then in some cases judgment shall be awarded against him as if he had pleaded or were found guilty, and in others he shall be remitted to his penance, that is to suffer what the Law calls Peine forte et dure, which is pressing, of which the readers will find an account in the subsequent life of Burnworth, alias Frazier; and therefore I shall not treat further of it here.
If, from conviction of his own guilt and a consciousness that it may be fully proved against him, the prisoner plead guilty to the indictment, it is considered as the highest species of conviction, and as soon as it is entered on record the Court proceeds to judgment without further proceedings on the indictments. But if the prisoner plead not guilty, and put himself for trial upon his country, then a jury of twelve men are to pass upon the defendant, and upon their verdict he is either to be acquitted or convicted.
And with respect to this jury, the English Law appears again more equitable than perhaps any other in the world, for in this case as the jury comes severally to the Book to be sworn, to try impartially between the King and the prisoner of the bar, according to the evidence that is given upon the indictment, the prisoner is even then at liberty to except against, or as the law term it, to challenge, twenty of the jury peremptorily, and as many more as he thinks fit on showing just cause. So also, if the prisoner be an alien, the jury are to be half aliens and half English. So tender is our constitution, not only of the lives of its natural born subjects, but, also of those who put themselves under its protection, that it has taken every precaution which the wit of man could devise to prevent prejudice, partiality, or corruption from mingling in any degree with the sentences pronounced upon offenders, or in the proceedings upon which they are founded.
Last of all we are to speak of the evidence or testimony which is to be given for or against the prisoner at the time of his trial. And first with respect to the evidence offered for the Crown; if it shall appear that the person swearing shall gain any great and evident advantage by the event of the trial in which he swears, he shall not be admitted as a good witness against the prisoner. Thus in the case of Rhodes, tried some years ago for forging letters of attorney for transferring South Sea Stock belonging to one Mr. Heysham, the prosecutor, Mr. Heysham, was not admitted to swear himself against the prisoner because in case of conviction six thousand pounds stock must have replaced to his account. But to this, though a general rule, there are some exceptions on which the compass of this discourse will not permit us to dwell. It is also a rule that a husband or wife cannot be admitted to testify against the prisoner, but to this also there are some exceptions, as in the Lord Audley's case,[[57]] where he was charged with holding his lady until his servant committed a rape upon her by his command. Also in marriages contracted by force against the form of the Statute; in that case it is provided that the woman, though a wife, may be admitted as evidence, as also in some other cases which we have not room to mention.
Persons convicted of perjury, forgery, etc., are not to be admitted as legal witnesses, but that the record of their contrition must be produced at the time the objection is made, for the Court mil take no notice of hearsay and common fame in such respect. An infidel, also, that is one who believes neither the Old nor New Testament, cannot be a witness, and some other disabilities there are which being uncommon, we shall not dwell upon here Yet it is necessary to take notice that whatever is offered as proof against the defendant, shall be heard openly before him, that he may have an opportunity of falsifying it, if he be able; and as in all cases, except high treason, no council is permitted to the prisoner except in matters of law, because every man is supposed to be capable of defending himself as to matters of fact, yet the Court is always council for the prisoner and never fails of instructing and informing him of whatever may conduce to his benefit or advantage; and if any difficult points of Law arise, council are assigned him, and are permitted to argue in his behalf with the same freedom that those do who are appointed by the Crown.
From this succinct account of the method in use in England, of doing justice in criminal cases, I flatter myself my readers will very clearly see how valuable those privileges are which we enjoy as Englishmen; how equitable the proceedings of our Courts of Justice; and how well constructed every part of our constitution is for the preservation of the lives and liberties of its subjects. If there remained room for us to compare the judicious proceedings in use here with those slight, rigorous and summary methods which are practised in other countries, the value of these blessings which we enjoy would be considerably enhanced. But as this Preface already exceeds its intended length, we must refer this to a more proper opportunity, and conclude with putting our readers in mind that by the careful perusal of this and the Preface to the First Volume, they will have competent notion of the Crown Law, the reasons on which it is founded, the method in which it is prosecuted, and the judgments on criminals which are inflicted thereby; matters highly useful in themselves, as well as absolutely necessary to be known, in order to a proper understanding of the following pages.
This was Mervyn, Lord Audley, 2nd Earl of Castlehaven, a man of loathsome profligacy, who was tried by his peers on charges of unnatural offences, and executed, in 1631.
The Life of WILLIAM SPERRY, Footpad and Highwayman
There is not anything more extraordinary in the circumstances of those who from a life of rapine and plunder come to its natural catastrophe, a violent and ignominious death, than that some of them from a life of piety and religion, have on a sudden fallen into so opposite a behaviour, and without any stumbles in the road of virtue take, as it were, a leap from the precipice at once.
This malefactor, William Sperry, was born of parents in very low circumstances, who afforded him and his brother scarce any education, until having reached the age of fourteen years, he and his younger brother before mentioned, were both decoyed by one of the agents for the plantations, to consent to their being transported to America, where they were sold for about seven years.[[58]] After the expiration of the term, William Sperry went to live at Philadelphia, the capital of Pennsylvania, one of the best plantations the English have in America, which receives its name from William Penn, the famous Quaker who first planted it. Here, being chiefly instigated thereto by the great piety and unaffected purity of morals in which the inhabitants of that colony excel the greater part of the world, Sperry began with the utmost industry to endeavour at retrieving his reading; and the master with whom he lived favouring his inclinations, was at great pains and some expense to have him taught writing. Yet he did not swerve in his religion, nor fall into Quakerism, the predominant sect here, but went constantly to the Church belonging to the religion by Law established in England, read several good books, and addicted himself with much zeal to the service of God. Removing from the house of his kind master to that of another planter, he abated nothing in his zeal for devotion, but went constantly from his master's house to church at West Chester, which was near five miles from his home.
Happening, not long after, to have the advantage of going in a trading vessel to several ports in America, he addicted himself with great pleasure to this new life. But his happiness therein, like all other species of human bliss, very shortly faded, for one morning just as the day began to dawn, the vessel in which he sailed was clapped on board, and after a very short struggle taken by Low, the famous pirate.[[59]] Sperry, being a brisk young lad, Low would very fain have taken him into his crew, but the lad having still virtuous principles remaining, earnestly entreated that he might be excused. On the score of his having discovered to Low a mutinous conspiracy of his crew, the generosity of that pirate was so great that, finding no offer he could make made any impression, he caused him to be set safe on shore in the night, on one of the Leeward Islands.
Notwithstanding that Sperry did not at that time comply with the instigations of the pirate, yet his mind was so much poisoned by the sight of what passed on board, that from that time he had an itching towards plunder and the desire of getting money at an easier rate than by the sweat of his brow. While these thoughts were floating in his head, he was entertained on board one of his Majesty's men-of-war, and while he continued in the Service, saw a pirate vessel taken; and the men being tried before a Court of Admiralty in New England, every one of them was executed except five, who manifestly appeared to have been forced into the pirates' service. One would have thought this would have totally eradicated all liking for that sort of practice, but it seems it did not. For as soon as Sperry came home into England and had married a wife, by which his inclinations were chained, though he had no ability to support her, and falling into very great necessities, he either tempted others or associated himself with certain loose and abandoned young men, for as he himself constantly declared, he was not led into evil practices by the persuasions of any. However it were, the deeds he committed were many, and he became the pest of most of the roads out to the little villages about London, particularly towards Hampstead, Islington and Marylebone, of some of which as our papers serve we shall inform you.
Sperry and four more of his associates hearing that gaming was very public at Hampstead,[[60]] and that considerable sums were won and lost there every night, resolved to share part of the winnings, let them light where they would. In order to this, they planted themselves in a dry ditch on one side of the foot-road just as evening came on, intending when it was darker to venture into the coach road. They had hardly been at their posts a quarter of an hour before two officers came by. Some were for attacking them, but Sperry was of a contrary opinion. In the meanwhile they heard one of the gentlemen say to the other, There's D—— M——, the Gamester, behind us, he has won at least sixty guineas to-night. Sperry and his crew had no further dispute whether they should rob the gentlemen in red or no, but resolved to wait the coming of so rich a prize.
It was but a few minutes before M—— appeared in sight. They immediately stepped into the path, two before him, and two behind, and watching him to the corner of a hedge, the two who were behind him caught him by the shoulders, turned him round, and hurrying him about ten yards, pushed him into a dry ditch. This they had no sooner done, but they all four leaped down upon him and began to examine his pockets, M—— thought to have talked them out of a stricter search by pretending he had lost a great deal of money at play, and had but fifty shillings about him, which with a silver watch and a crystal ring he deemed very ready to deliver; and it very probably would have been accepted if they had not had better intelligence, but one of the oldest of the gang, perceiving after turning out all his pockets that they could discover nothing of value, began to exert the style of a highwayman upon an examination, and addressed the gamester in these terms.
Nobody but such a rogue as you would have given gentlemen of our faculty so much trouble. Sir, we have received advice by good hands from Belsize that you won sixty guineas to-day at play. Produce them immediately, or we shall take it for granted you have swallowed them; and in such a case, Sir, I have an instrument ready to give us an immediate account of the contents of your stomach.
M——, in a dreadful fright, put his hand under his arm, and from thence produced a green purse with a fifty pound bank-note and eighteen guineas. This they had no sooner taken than, tying him fast to a hedge stake, they ran across the fields in search of another booty. They spun out the time, being a moonlight night, until past eleven, there being so much company on the road that they found it impossible to attack without danger.
As they were returning home, they heard the noise of a coach driving very hard, and upon turning about saw it was that of Sir W—— B——, himself on the box, two ladies of pleasure in the coach, and his servants a great way behind. One of them seized the horse on one side, and another on the other, but Sir W—— drove so very hard that the pull of the horses brought them both to the ground, and he at the same time encouraging them with his voice and the smack of his whip. So he drove safe off without any hurt, though they fired two pistols after him.
About three weeks after this they were passing down Drury Lane, and observing a gentleman going with one of the fine ladies of the Hundreds into a tavern thereabouts, one of the gang who knew him, and that he had married a lady with a great fortune to whom his father was guardian, and that they lived altogether in a great house near Lincoln's Inn Fields, immediately thought on a project. They slipped into an alehouse, where he wrote an epistle to the old gentleman, informing him that they had a warrant to apprehend a lewd woman who was with child by his son, but that she had made her escape, and was now actually with him at a certain tavern in Drury Lane, wherefore being apprehensive of disturbance, and being unwilling to disgrace his family, rather than take rougher methods, they had informed him, in order that by his interposition the affair might be made up.
As soon as they had written this letter, they dispatched one of their number to carry it and deliver it, as if by mistake, to the young gentleman's wife. This had the desired effect, for in less than half an hour came the father, the wife, and another of her trustees, who happened to be paying a visit there when the letter came. They no sooner entered the tavern but hearing the voice of the gentleman they asked for, without ceremony they opened the door, and finding a woman there, all was believed, and there followed a mighty uproar. Two of the rogues who were best dressed, had slipped into the next room and called for half a pint. As if by accident they came out at the noise, and under pretence of enquiring the occasion, took the opportunity of picking the gentleman's pockets of twenty-five guineas, one gold watch, and two silver snuff-boxes, which it is to be presumed were never missed until the hurry of the affair was over.
The last robbery Sperry committed was upon one Thomas Golding, not far from Bromley, who not having any money about him, Sperry endeavoured to make it up by taking all his clothes. Being apprehended for this, at the next sessions at the Old Bailey he was convicted for this offence, and having no friends, could not entertain the least hopes of pardon. From the time that he was convicted, and, indeed, from that of his commitment, he behaved like a person on the brink of another world, ingenuously confessing all his guilt, and acknowledging readily the justice of that sentence by which he was doomed to death. His behaviour was perfectly uniform, and as he never put on an air of contempt towards death, so, at its nearest approach he did not seem exceedingly terrified therewith, but with great calmness of mind prepared for his dissolution.
On the day of his execution his countenance seemed rather more cheerful than ordinarily, and he left this world with all exterior signs of true penitence and contrition, on Monday, the 24th of May, 1725, at Tyburn, being then about twenty-three years of age.
There was great competition to secure white labour in the American plantations. Infamous touts circulated amongst the poor, and any who were starving or wished for personal reasons to emigrate engaged themselves with a ship-master or an office-keeper to allow themselves to be sold for a term of years in return for their passage money. On arrival at their destination these poor wretches were sent to the plantations and lived as slaves until the term for which they had contracted had expired. In Virginia and Maryland, where most of them went, they were driven to work on the tobacco fields with the negroes, and were worse treated than the blacks, as being only leasehold property whereas the negroes were freehold.
Captain Edward Low was one of the bloodied of the pirates. He served under Lowther until 1722, when he smarted on his own account. After many atrocities he was taken by the French and hanged, some time in 1724. A full account of him is given in my edition of Johnson's History of the Pirates, issued in the same series as the present volume.
Belsize House was opened as a place of amusement, about 1720, by a certain Howell, who called himself the Welsh Ambassador. At first it was a fashionable resort, but it soon became the haunt of gamblers and harpies of both sexes.