lord Rochford's office: he was admitted to my lord Rochford's presence; I then quitted the room, and was not present at his examination. Cross-examined by Mr. Alleyne. Were you at lord Rochford's when Mr. Sayre was committed ?---I might be in the outer office, but I knew nothing of it. Do you know the time when Mr. Sayre withdrew ?---I cannot speak positive when it was. Mr. Wallace. Mr. Reynolds informs your lordship, that he came into the room when Mr. Sayre was at lord Rochford's office, and told Mr. Sayre that if he answered any questions, or signed any paper, he would instantly leave the room. I wish to shew your lordship what Mr. Sayre's examination was, before he was stopped by Mr. Reynolds. [The Examination produced.] Charles Brietzcké sworn: You belong to the secretary of state's office? --- Yes. was not spirit enough left in this country to bring such a measure about; but that, as to any plan or intention of seizing the king's persou, he is totally and entirely ignorant thereof. "Taken before me, the day and year above written, ROCHFORD." Cross-examined by Mr. Alleyne, You were in company with my lord Rochford and Mr. Sayre, all the while they were together, were you not?-During the time the examination was taken down by me in writing. Were you there when Mr. Reynolds came?-I was in the room when Mr. Reynolds intruded himself into that room. How long after did you continue there?—Till the examination was closed. Were you in the room when Mr. Sayre and Mr. Reynolds were directed to withdraw into. another room?-They went into another room; but I cannot take upon me to say they were directed: I was in the room before the examination was taken, and I remained till my lord Rochford signed it. Is that your hand-writing?--Yes; it is what Mr. Sayre said before lord Rochford: this Then you were in the room, in plain Englisu, is the true purport of what he said: lord Roch-when Mr. Sayre and Mr. Reynolds withdrew? ford put every question before I wrote it down,-Yes. to see if it was proper, and understood. The questions were put, and his answers; and before I wrote them down, Mr. Sayre admitted, I believe, that they were the sense of his answers. [The Examination read.] How long after that withdrawment was it before the warrant for the commitment was signed?—It might be half an hour, or more, or less; I cannot take upon me to say. What was done after Mr. Sayre and Mr. Reynolds withdrew; did not lord Rochford immediately give orders for having the warrant made out for committing him ?—I heard orders given for to make out the warrant. Immediately, or within a few minutes?—I understood that orders were given: I am not the clerk that made out the warrant. You heard Mr. Reynolds talk something about bail, did not you?-I cannot charge my memory, I wish I could, to that matter. It is unfortunate that your memory can recollect all on one side and nothing on the other! I shall give answers to every question in my power, but I will not speak to any thing I do not know. Did you hear any thing of bail being offered? I cannot say that I did; and, to the best of my knowledge and belief, there was not any thing said about bail, that my lord Rochford said, in my hearing. The EXAMINATION of STEPHEN SAYRE, esq. taken before me, William Henry, Earl of Rochford, this 23d day of October, 1775. "This examinant saith, That, so far as relates to the seeing Mr. Richardson at the Pensylvania coffee-house, upon the 19th instant, as he believes, is very true: and that they went up stairs, is also true; their conversation turned chiefly upon the contest now depending in America: the conversation began by Mr, Richardson's apologising for being an officer in the guards, instead of being now in the service of America. What made this apology the more necessary, he having met him in the streets some months before, when he declared to him, if he did not succeed in coming into the guards again, he meant to proceed instantly to America, and to go into the service of that country that he does not choose to trust hisOr any body else. memory with Mr. Reynolds being present at this conversation; but that there was a person present; Mr. Richardson proceeded in saying, That he should be better qualified for that service, having just been appointed an adjutant in the guards. The conversation then took a turn upon the mischiefs which must arise, in consequence of the contest now with America: that he, the examinant, acknowledges that he declared to him, that he thought nothing would save both countries but a total change of both men and measures: that he was afraid there I did not ask you what lord Rochford said. L. C. J. De Grey. Was sir John Fielding there at that time ?—He was. Mr. Serj. Davy. My lord, it is admitted, that matter is pleaded, that there is such an Habeas Corpus and Recognizance. Mr. Serj. Adair. That Recognizance was afterwards discharged for want of prosecution. The evidence for the defendant being closed, Mr. Serjeant Glyun made a reply in behalf of the plaintiff; after which his lordship summed up the evidence to the jury, who withdrew for 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 Chief Justice prefaced his recapitulation of the evidence with observing that the present was a cause of the utmost importance, as it involved in it those two very material points, the safety of government, and the safety and security of the subject. The person of the king, he remarked, was so intimately connected with the interest of the people, that the law regarded it with an eye of jealousy, and had made it high treason only to imagine his death or dethronement. He then commenced a learned inquiry into the doctrine of treasons, shewing what constituted high treason, overt acts of high treason, and misprision of treason; strengthening his own arguments with quotations from judge Foster and the ablest lawwriters on the subject; and after declaring bow the law stood in these respects, compared it with the fact in issue, explaining to the jury how far it applied to the case before them. The charge made against Mr. Sayre by Mr. Richardson, sir William observed, if true, wanted only one circumstauce to corroborate it and make it high treason. If any one of the mat ters referred to in the alleged conversation had been proved by a second witness, the attorney general might have prosecuted to conviction: as the case stood, therefore, it remained for the jury to consider, whether the conduct of lord Rochford had been that incumbent on a magis trate on such an occasion. He did not himself see the necessity of a secretary of state's inquiring with scrupulous nicety into the truth of a charge of high treason, before he proceeded to secure the suspected traitor. Suspicion was a sufficient cover for a magistrate's acting in cases of felony: in cases of treason, therefore, he conceived the same rule would hold. With regard to the improbability of the charge, it ought to be remembered how exceedingly im probable and apparently absurd all attempts to kill or dethrone princes or alter governments ever had been. In the case of Henry the 4th of France, the people universally discredited the report of an attempt to murder their monarch; the consequence was, they lost their king by it, he being killed in the public streets of the city of Paris at noonday, rounded by his retinue and court. improbable also were the attempts reported to have been designed on William the 94 and Charles the 2nd of England! It seemed, therefore, to be a main point for the jury's con sideration, whether lord Rochford had acted as a “The Recorder replied to what had been urged by the Attorney General, and with great spirit insisted upon the hard treatment his client had met with, and the right he had to expect large damages. Allowing even that a secretary of state was warranted to act as a justice of the peace, he denied that lord Rochford had acted with that impartiality, that regard for the liberty of the subject, that view to an equal distribution of justice, which an ordinary justice was bound to observe. The mode of apprehending Mr. Sayre, the issuing a warrant to seize his papers, added to the illegality of commiting him to close custody for a misdemeanour only, after sufficient bail had been offered, were incontestible proofs of his position. It was evident, he said, that lord Rochford never credited the absurd information: if he did, why did he alter the offence alleged by committing only for treasonable practices? And why had not the prosecution been pursued? It was most clear from the dropping all further proceedings, that lord Rochford did not now believe, and he appealed to the court if there was one man present who gave the information the least credit. An ordinary justice, in such a case, would at least have examined into the foundation of the charge, ere he proceeded to inforce the rigour of the law. He would not, on the single evidence of a most improbable story, have gone so far as to commit to close custody. He would have endeavoured to procure some information, especially where it could so very easily have been come at as in the present case. Had his lordship sent to the lord mayor he would have thrown some light on the matter; so might the soldiery: but as an incontestible proof of the falsehood of the charge, even now at this distance of time, the information was altogether unsupported. It had been urged by the Attorney General that Mr. Sayre had been treated with all possible politeness: it was not to be supposed that lord Rochford would treat any man unpolitely, but it was extremely evident that Mr. Sayre had been treated with the full exertion of official rigour from the beginning to the end of the business. The issuing general warrauts to seize papers had been more than once debated and settled: it had been argued in the case of Arthur Beardmore, and in the case of Mr. Wilkes. The Recorder professed himself against all seizures of papers, and he was persuaded that Mr. Reynolds had acted with great propriety at lord Rochford's, however harshly magistrate ought to do in such a case as that other men might treat his behaviour. He had before them, and also whether Mr. Reynolds's given lord Rochford very proper advice: the declaration at lord Rochford's amounted to a crown lawyers were the persons who were best legal tender of bail. After instancing the maable to have directed his lordship in his 'pro- terial parts of the evidence, sir William left the ceedings they had doubtless since been con- whole to the consideration of the jury, who balf sulted, and had very wisely advised the minis- an hour after three went out of court and staid try to drop the affair. The Recorder spoke for about two hours; on their return they found a a considerable time, and with great warmth in-verdict for the plaintiff with 1,000, damages." forced his client's case. sur How n : 1. Whether the offer and refusal of bail was admissible evidence under the issues joined upon the special pleas? And if admissible, 2. Whether the evidence given was a sufficient proof of an offer and refusal of bail, to make the subsequent imprisonment illegal? The following is Mr. Justice Blackstone's Report of the proceedings in C. B.: Mich. Term, 18 G. 3. In trespass and false imprisonment, the plaintiff declared, 1st. On a breach and entry of his house on the 23d of October, 1775, and making a disturbance there for twelve hours, breaking open his cabinets and escritoires, and taking away bis goods and papers, and for an assault on his person, and imprisoning him ten days, without any lawful or reasonable cause. 2nd. On a general count for an assault and false imprisonment; and laid his damages at 30,000l. The defendant pleaded, Ist. Not Guilty, on which issue was joined. 2nd. He justified, as to entering the house and taking the goods, and imprisoning the plaintiff for part of the time laid in the first count, as being a privy counsellor and secretary of state, and having received an information upon oath, on the 20th October, 1775, from one captain Francis Richardson, who on the 19th was an adjutant in the guards, then on duty in the Tower of London, and who deposed, as stated at length in the plea, but substantially, "That the plaintiff had tampered with him to betray his trust as an officer on guard at the Tower, and to influence the minds of the soldiery, by a promise of double pay, to assist in a revolt and change of government, which he declared the people were determined to take into their own hands; and that there was a design to seize the king when going to the House of Lords on the 26th of October, and convey him to the Tower, and from thence send him to his German dominions, and that 1,500l. had been already distributed among the guards, to alienate their affections. He also promised to send the informant money, to make himself popular among the soldiers; and desired when the king was seized he would so order matters as to let him and the populace into the Tower, and put him in possession of the magazines, &c. That their intent was to compel the king to issue proclamations to call a new privy council, and to displace such officers civil and military as their party should disapprove and that the lord mayor (Wilkes) was to order the sheriffs (Hayley and Newnham) to raise the posse comitatus, and keep the peace near the Tower; and also to order proper constables." Upon which the defendant issued his warrant to apprehend the plaintiff for high treason, and seize his papers; and delivered the same, on the 23d of October, to two of the king's messengers; who taking with them a constable entered the plaintiff's house, and seized him and his papers, and brought him before the VOL. XX. defendant, who, upon examination, committed the plaintiff to close custody in the Tower for treasonable practices; but returned him, bis papers. That the plaintiff was, on the 28th of October, 1775, upon a Habeas Corpus, admitted to bail by lord Mansfield, chief justice of the King's-bench, and set at liberty, 'Que 'sunt eadem,' &c. 3d. The defendant further pleaded a like plea as to the second, with respect to entering the house, taking away the defendant's papers, and imprisoning him. 4th. There was also a fourth plea of the same purport to the second count of the declaration. The plaintiff replies to all the special pleas, 'De injuriâ suâ propriâ absque tali causâ,' &c. and thereupon issues were joined. This case was argued last Easter term, by Adair for the plaintiff, and Walker for the defendant; and when the Court was ready to give judgment thereon in Trinity term, it was, at the pressing instance of the plaintiff's counsel, adjourned for another argument to this term: when it was again argued by Glynn for the plaintiff, and Davy for the defendant. For the plaintiff, it was urged, that under the replication of De injuriâ suâ propriâ,' &c. it is sufficient to shew any fact that is not consistent with the justification. And though a new trespass cannot be given in evidence under that issue, it may be shewn that the original trespass was unjustifiable. That though the original caption might be justified by the matter contained in the plea, yet the subsequent detainer might be shewn to be unjustifiable by the tender and refusal of bail. A lawful act may be turned into a trespass by the subsequent misbehaviour of the party; as by abusing a distress; Salk. 221. Gargrave and Smith. Riding an impounded horse. Yelv. 96. See also the Six Carpenters' case, 8 Co. 146, and Withers and Hendley, Cro. Jac. 379, where it is held, that an unlawful detainer after a legal taking is a fresh and illegal caption. They said, the second question was too clear to make a doubt. The tender could only be conditional, as it was not known for what crime the plaintiff would be committed: and immediately after the tender, he is committed to close custody, which prevented him from then offering bail. And per Gould, justice. It is held in Long Quinto, 13, that in bailable cases it is the duty of the magistrates in the first place to demand sureties. For the defendant it was argued, that the evidence of tender and refusal of bail was not admissible, because, 1st. It is not within the issue, which is only on the truth of the plea, and that the plea does not mention this fact. A general replication (like the present) only denies the plea. A special replication confesses it, but alleges new matter; this therefore, being new matter, ought to have been replied. In King and Phippard, Carth. 280, in action of assault and battery. A pleason assault 4 P Replication that the defendant | Nothing ought to be admitted in evidence, but what is material to the issue joined, either to prove or disprove it. Nothing is in issue upon a special plea, but what is directly traversed: and the general replication, De injuria suâ propriâ absque tali causâ,' traverses all the 6 ' demesne.' entered the plaintiff's house and misbehaved, whereupon he gently put him out. Held that the replication was good without a traverse, absque hoc, for it ought to be a special replication, because this new matter could not be given 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 decase, 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 replicastantly 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 untrue. 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. 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 Hep 7, pl. 8. Cro. Jac. 147. Judgment for the defendant. See the Case of Wilkes, on a Habeas Corpus, 19, p. 982. Also that of Leach against the King's Messengers, for False Imprisonment, vol. 19, p. 1002, and the Case of Seizure of Papers, p. 1030. It is a certain rule that no new matter, foreign to the issue joined, is admissible as evidence. The present replication De injurià 'suâ propriâ,' &c. is a general traverse of the In the Letter from Candor to the Public Ad whole of the plea. Whatever therefore goes vertiser, pp. 15, 16, it is asserted, that "Mr. to disprove the facts of the plea is proper evi- Pratt never was consulted at all, and but once dence, What disproves none of them, is im-even spoken to, about any secretary's warrant; proper. This refusal of bail, if true, disproves and then as Mr. Pitt avowed in a certain august nothing that is advanced in the plea, and there-assembly, his friend the Attorney told him fore ought not to have been admitted. Gould, justice, of the same opinion. There may be a partial traverse absque tali causâ,' and a general one. This is a general traverse, under which no new matter can be given in evidence. The case in Carthew, 280, is a strong authority for the defendant. Blackstone, justice, of the same opinion. 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 had 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 hölden 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.] Southampton, 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 100%; ten cable-ropes, each thereof being in length one hundred fathoms, and in circumference three inches, and of the value of 801.; 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 barn, 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, dó 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 cure 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. pro The Prisoner was arraigned upon the above Henry Lucas, of the Soke. |
