$

about an hour, when they returned into court with a verdict for the plaintiff,* with 1,000l. da

mages, subject to the opinion of the Court of Common Pleas upon the following Questions:

"The Recorder replied to what had been "The Chief Justice prefaced his recapitulation arged by the Attorney General, and with great of the evidence with observing that the present spirit insisted upon the hard treatment his client was a cause of the utmost importance, as it inhad met with, and the right he had to expect volved in it those two very material points, large damages. Allowing even that a secretary the safety of government, and the safety and of state was warranted to act as a justice of the security of the subject. The person of the peace, he denied that lord Rochford had acted king, he remarked, was so intimately connected with that impartiality, that regard for the liber- with the interest of the people, that the law ty of the subject, that view to an equal distribu- regarded it with an eye of jealousy, and had tion of justice, which an ordinary justice was made it high treason only to imagine his death bound to observe. The mode of appre- or dethronement. He then commenced a hending Mr. Sayre, the issuing a warrant to learned inquiry into the doctrine of treasons, seize his papers, added to the illegality of shewing what constituted high treason, overtcommiting him to close custody for a misde- acts of high treason, and misprision of treason; meanour only, after sufficient bail had been strengthening his own arguments with quotaoffered, were incontestible proofs of his position. tions from judge Foster and the ablest lawIt was evident, he said, that lord Rochford writers on the subject; and after declaring how never credited the absurd information: if he did, the law stood in these respects, compared it why did he alter the offence alleged by com- with the fact in issue, explaining to the jury mitting only for treasonable practices? And how far it applied to the case before them. The why had not the prosecution been pursued? It charge made against Mr. Sayre by Mr. Richwas most clear from the dropping all further ardson, sir William observed, if true, wanted proceedings, that lord Rochford did not now only one circumstauce to corroborate it and believe, and he appealed to the court if there make it high treason. If any one of the mat was one man present who gave the information ters referred to in the alleged conversation had the least credit. An ordinary justice, in such a been proved by a second witness, the attorney case, would at least have examined into the general might have prosecuted to conviction: foundation of the charge, ere he proceeded to as the case stood, therefore, it remained for the inforce the rigour of the law. He would not, jury to consider, whether the conduct of lord on the single evidence of a most improbable Rochford had been that incumbent on a magisstory, have gone so far as to commit to close trate on such an occasion. He did not himself custody. He would have endeavoured to pro- see the necessity of a secretary of state's incure some information, especially where it quiring with scrupulous nicety into the truth could so very easily have been come at as in of a charge of high treason, before he proceeded! the present case. Had his lordship sent to the to secure the suspected traitor. Suspicion was Jord mayor he would have thrown some light a sufficient cover for a magistrate's acting in on the matter; so might the soldiery: but as cases of felony: in cases of treason, therefore, an incontestible proof of the falsehood of the he conceived the same rule would hold. With charge, even now at this distance of time, the regard to the improbability of the charge, it information was altogether unsupported. It ought to be remembered how exceedingly im had been urged by the Attorney General that probable and apparently absurd all attempts to Mr. Sayre had been treated with all possible kill or dethrone princes or alter governments politeness: it was not to be supposed that lord ever had been. In the case of Henry the 4th Rochford would treat any man unpolitely, but of France, the people universally discredited it was extremely evident that Mr. Sayre had the report of an attempt to murder their mo been treated with the full exertion of official narch; the consequence was, they lost their rigour from the beginning to the end of the king by it, he being killed in the public business. The issuing general warrants to streets of the city of Paris at noonday, surseize papers had been more than once debated rounded by his retinue and court. and settled: it had been argued in the case of improbable also were the attempts reported Arthur Beardmore, and in the case of Mr. to have been designed on William the Sd Wilkes. The Recorder professed himself against and Charles the 2nd of England! It seemed, all seizures of papers, and he was persuaded therefore, to be a main point for the jury's conthat Mr. Reynolds had acted with great pro-sideration, whether lord Rochford had acted as priety at lord Rochford's, however harshly other men might treat his behaviour. He had given lord Rochford very proper advice: the crown lawyers were the persons who were best able to have directed his lordship in his 'proceedings: they had doubtless since been consulted, and had very wisely advised the ministry to drop the affair. The Recorder spoke for a considerable time, and with great warmth inforced his client's case.

How

a magistrate ought to do in such a case as that before them, and also whether Mr. Reynolds's declaration at lord Rochford's amounted to a legal tender of bail. After instancing the material parts of the evidence, sir William left the whole to the consideration of the jury, who half an hour after three went out of court and staid about two hours; on their return they found a verdict for the plaintiff with 1,000!, damages," Morn. Chron.

' demesne.' Replication that the defendant Nothing ought to be admitted in evidence, but
entered the plaintiff's house and misbehaved, what is material to the issue joined, either to
whereupon he gently put him out. Held that prove or disprove it. Nothing is in issue upon
the replication was good without a traverse, a special plea, but what is directly traversed:
absque hoc, for it ought to be a special replica- and the general replication, De injuria suà
tion, because this new matter could not be given propriâ absque tali causâ,' traverses all the
in evidence on the general replication, De in-matters, and nothing but the matters contained
'juriâ suâ propriâ, &c.' Whatever confesses in the plea. The plaintiff declares on a fact
and avoids, as the tender of bail does in this which at first view is a trespass. The de-
case, must be suggested on the record, that the fendant in his plea acknowledges that fact, but
adverse party may be able to meet it in evi- states such new circumstances as (if true)
dence. It is collateral matter, and out of the amount to a justification. If the plaintiff can
issue of the general traverse, which only goes suggest additional new matter, which shews
to the facts of the plea. Therefore all subse- that the defendant's assertions (though true)
quent misbehaviours, as abuses of distresses, will not justify the trespass committed, he ought
&c. are in the regular course of pleading, con- to reply that new matter in a special replica-
stantly replied, and cannot be given in evidence, tion, that the defendant may demur or take
Besides,
issue upon it. But in the present case he has
chosen to reply generally, the imprisonment I
complain of is still an injury, because all that
you have said in justification is absolutely un-
true. The words De injuriâ suâ propriâ,'
of his own wrong, are merely introductory;
the traverse is contained in the words absque
tali causâ,' without the cause alleged by the
defendant. Whatever therefore goes to dis
prove that cause is admissible evidence, but
nothing else.

2. This evidence does not support the action, which is for a positive fact. This is only proof of a negative, a mere non-feasance. See the Six Carpenters' case. Resolution the second. Ld. Raym. 1399.

As to the second question. Tender of bail must be like the tender of money. The bail must be produced in order to see that they are current. A promise, or offer of bail not present is not sufficient, nor is the subsequent commitment a refusal, if no bail were ready. The tender must be absolute, not conditional; Salmon and Percival, Cro. Car. 196. Sir W. Jones, 226. Smith and Hall, 2 Mod. 31. On an action of false imprisonment the defendant justified under a Latitat, the plaintiff replied (which shews the true course of pleading) a tender and refusal of bail. Held, that as the arrest was legal, case and not trespass lay for this refusal.

De Grey, chief justice. As the case is so clear on the first question, there is no necessity to give any opinion on the second.

It is a certain rule that no new matter, foreign to the issue joined, is admissible as evidence. The present replication De injuriâ • suâ propriâ,' &c. is a general traverse of the whole of the plea. Whatever therefore goes to disprove the facts of the plea is proper evi'ence. What disproves none of them, is imJoper. This refusal of bail, if true, disproves thing that is advanced in the plea, and therere ought not to have been admitted.

Gould, justice, of the same opinion. There and be a partial traverse absque tali causâ,' Arthgeneral one. This is a general traverse, Will which no new matter can be given in all s.ce. The case in Carthew, 280, is a that authority for the defendant. prietykstone, justice, of the same opinion. other r given crown le

able to.
ceedings.
sulted, and
try to drop th
a considerable
forced his clien

6

Nares, justice, of the same opinion. It was held by all the judges on a reference from this Court in the case of Selman and Courtney, about the 13 or 14 Geo. 2, that where a defence confesses and avoids, it cannot be given in evidence on the general issue. See also 3 Hen. 7, pl. 8. Cro. Jac. 147.

Judgment for the defendant.

See the Case of Wilkes, on a Habeas Corpus,
King's Messengers, for False Imprisonment,
vol. 19, p. 982. Also that of Leach against the
Vol. 19, p. 1002, and the Case of Seizure of
Papers, p. 1030.

In the Letter from Candor to the Public Advertiser, pp. 15, 16, it is asserted, that “Mr. Pratt never was consulted at all, and but once even spoken to, about any secretary's warrant ; and then as Mr. Pitt avowed in a certain august assembly, his friend the Attorney told him the warrant would be illegal, and if he issued it he must take the consequence, nevertheless preferring the general safety in time of war and public danger to every personal consideration, he run the risk (as he would that of his head bad that been the forfeit upon the like motive) and did an extraordinary act upon a suspicious foreigner just come froin France.""

561. The Trial of JAMES HILL otherwise JAMES HINDE, otherwise JAMES ACTZEN or AITKEN,* (known also by the name of John the Painter) for feloniously, wilfully, and maliciously setting Fire to the Rope House in his Majesty's Dock-Yard, at Portsmouth: had at the Assizes holden at Winchester, Before the Hon. Sir William Henry Ashhurst, knt. one of the Justices of his Majesty's Court of King's Bench, and the Hon. Sir Beaumont Hotham, knt. one of the Barons of his Majesty's Court of Exchequer, March 6: 17 GEORGE III. a. D. 1777. [Taken in Short-Hand by Joseph Gurney; and published by Permission of the Judges.]

THE GRAND JURY.

Viscount Palmerston
Rt. hon. Hans Stanley
Sir R. Worsley, bart.
Sir H. P.St. John,knt.
Sir W. Benett, knt.
Sir C. Ogle, knt.
H. Penton, esq.
J. Iremonger, esq.
T. S. Jolliffe, esq.
J. Worsley, esq.
C. Spooner, esq.
T. Ridge, esq.

Southampton,

P. Taylor, esq.
C. Saxton, esq.
John Pollen, esq.
T. Gatehouse, esq.
T. Sidney, esq.
J. Amyatt, esq.
Tho. South, esq.
H. Harmood, esq.
W. Harris, esq.
Richard Bargus, esq.
Philip Debany, esq..

INDICTMENT.

THE jurors for our lord the king, upon their oath, present that James Hill, otherwise James Hinde, otherwise James Actzen, late of Portsea, in the county of Southampton, labourer, on the 7th day of December, in the 17th year of the reign of our sovereign lord George the 3d, now king of Great Britain, &c. with force and arms at Portsea aforesaid, in the county aforesaid, twenty tons weight of hemp of the value of 1007.; ten cable-ropes, each thereof being in length one hundred fathoms, and in circumference three inches, and of the value of 80%.; and six tous weight of cordage, of the value of 2001.; the said hemp, cable ropes, and cordage, then and there, being naval stores of our said lord the king, and then placed and deposited in a certain building in the dock-yard of our said lord the king there situate, called the Rope-house, feloniously, wilfully, and maliciously, did set on fire and burn, and cause and procure to be set on fire and burnt, against the form of the statute in such case lately made and provided, and against the peace of our said lord the king, his crown and dignity.

And the jurors aforesaid, upon their oath aforesaid, do further present, that the said

* Some account of this man is given in the Annual Register for 1777, Hist. of Europe, p. 28.

James Hill, otherwise James Hinde, otherwise James Actzen, on the said 7th day of December, in the year aforesaid, with force and arms at Portsea aforesaid, in the county aforesaid, a certain building erected in the dock-yard of our said lord the king there situate, called the Rope-house, feloniously, wilfully and maliciously, did set on fire, and cause and procure to be set on fire, against the form of the statute in such case lately made and provided, and against the peace of our said lord the king, his crown and dignity.

And the jurors aforesaid, upon their oath aforesaid, do further present, that the said James Hill, otherwise James Hinde, otherwise James Actzen, on the said 7th day of December, in the year aforesaid, with force and arms at Portsea aforesaid, in the county aforesaid, a certain building of our said lord the king there situate, in which great quantities of naval stores, that is to say, twenty tons weight of hemp, ten cable ropes, and six tons weight of cordage, of our said lord the king, were then placed and deposited, feloniously, wilfully, and maliciously, did set on fire, and cause and procure to be set on fire, against the form of the statute in such case lately made and provided, and against the peace of our said lord the king, his crown and dignity.

The Prisoner was arraigned upon the above
Indictment, to which he pleaded Not Guilty,
when the following persons were sworn;
THE PETIT JURY.

Henry Lucas, of the Soke.
Richard Long of the same.
Robert Mondy, of Thruxton.
John Cole, of Upelatford.
William Cole, of Longstock.
Richard Vokes, of Kingsworthy.
Rechab Thorne, of Itchin Stoke.
Samuel Maunder, of Hyde-street.
George Newsham, of Wickham.
John Kent, of Fareham.
John Berry, of the same.
Charles Cobb, of Gosport.

1319]
Counsel for the Crown. Mr. Serj. Davy,
Mr. Mansfield, Mr. Missing, Mr. Buller, Mr.
Fielding.

17 GEORGE III. Trial of James Hill alias John the Painter, [1320

Mr. Fielding. May it please your lordship, and you gentlemen of the jury, this is an indict ment against the prisoner at the bar for a crime

of so atrocious and uncommon a nature, as to

as soon as this misfortune had happened, all
imaginable enquiry was made, in order to find
out the cause of it, but all to no purpose, no
fire or candle had been there, none ever is
used there, particularly in the eastward part of
the building; nobody could tell by what means
it happened, and all enquiry was fruitless, and
it would have passed as an accident, the causes
of it unknown to this day, had it not been for a
very extraordinary discovery, which was made
upon the 15th of January, five or six weeks af-
terwards, which led to an enquiry, and which
enquiry produced the most ample and clear
discovery that ever was laid before a court of
justice.

render it impossible to affix any epithet to the
crime descriptive of its enormity. This is,
gentlemen, the first instance of its existence,
and I hope in God it will be the last. The in-
dictment, you have perceived already, turns upon
three counts: the prisoner at the bar is first
charged for setting fire to a quantity of hemp
and ropes particularly specified; the second
Upon the 15th of January, in the Hemp-
count is for setting fire to a certain building house, which is another very large building,
erected in the dock-yard, called the Rope- and which contains hemp of an infinite value
house; the third count is for firing his majes- belonging to the crown, there was discovered
ty's naval stores. Gentlemen, the matter will
be more fully opened to you by the learned by Mr. Russell, and two others, in turning
and experienced gentleman who leads this bu-over some of the hemp for some purpose, some-
thing which shone a little and appeared
siness, and I doubt not but your verdict will be bright; it appeared upon taking it up, that it
satisfactory to your country.
was a sort of canister, which one at first sight
Mr. Serj. Davy. May it please your lordship, imagined to be a tea canister; it was a machine
Í am of coun-
which nobody could tell what to make of;
and you gentlemen of the jury,
sel in this case for the king in the prosecution upon looking a little further on the same spot,
of the prisoner at the bar, who is described by there was found a sort of box, containing com-
the name of James Hill, otherwise James bustibles of various kinds; there was oil of tur-
Hinde, otherwise James Actzen, for setting pentine, there was hemp, there was tar; the
fire to the Rope-house at Portsmouth Dock, moment that was seen, it struck them; and
belonging to the crown, the place where there could be no doubt in any mind upon that
cordage is made to supply the king's navy, subject, that whoever placed that machine
and which crime is constituted a capital felony there, had an intention to set the place on fire;
by an act of parliament made in the 12th year it was alarming, the men were struck with as-
tonishment and wonder, looking at each other
of his present majesty, till when it had not en-
tered the imagination of man that such a crime and at the instrument in their hands, and upon
could be committed at all. It will be unne-recollection determined to do the only thing fit
cessary for me to expatiate upon the nature of
the offence; that has nothing to do with the
prisoner at the bar, any more than as he was
an agent in the commission of it; and it will be
necessary for me, therefore, to mention to you
only those particulars that we have to lay be-
fore you in evidence, by which to affix the
crime upon the prisoner, and to submit to you
upon the consideration of those facts, whether
he is or is not guilty of the charge in the in-
dictment.

Upon the 7th of December in the afternoon (I believe about 4 o'clock) a dreadful fire broke out in the Rope-house at Portsmouth Dock, which I think was entirely consumed; it is an edifice of very great extent and magnitude indeed, (perhaps you may have seen it) and is consequently of great value, and it is exceeding lucky for the public that it did not happen at that time to contain so much cordage as at some times it had; that was not the only thing intended to be consumed that day, but fortunately that alone was consumed. Gentlemen, it is necessary to mention to you that the fire broke out at the easternmost part of the building;

* Stat. 12 G. 3. c. 24. See East's Pleas of the Crown, chap. 22, s. 38. For the law of Arsun, see the preceding chapter of that work.

to be done, to go to the Commissioner of the
Dock and inform him of it, that the proper
evidence of this matter might be laid before go-
vernment, and fit enquiry made into it; then
it was, for the first time, clear and apparent to
every one, that the fire, which had happened
on the 7th of December in the Rope-house,
had not been by accident, but design. Now,
gentlemen, let us endeavour to recollect every
circumstance of that unhappy day--while it
was thought to have been accident, nobody
gave themselves the trouble to enquire or to re-
collect who they had seen, who was there, or
who was not there; but from the instant that
they resolved that this must have been the
work of some devil, or that this was some hu-
man contrivance, that this was an act done on
purpose, then it was fit to advert back to the
subject, and to turn in their minds all the cir-
cumstances of that day; among others it oc-
curred (for it was the talk of all the thousands
in the Dock in five minutes, I suppose) that a
man had been seen upon the day of the fire,
lurking very much about the Hemp-house and
about the Rope-bouse; then it occurred, that
a man had been locked into the Rope-house,
and with some difficulty had got out again; then
it occurred, that the person upon whom suspi
cion then fell, from several vague indefinite cir,