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, overtacts 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 how 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 circumstance to corroborate it and make it high treason. If any one of the matters 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 magistrate 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 improbable 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, surrounded by his retinue and court. How improbable also were the attempts reported to have been designed on William the Sd and Charles the 2nd of England! It seemed, therefore, to be a main point for the jury's con "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 commiting 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 Jord 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 warrants 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 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. 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 1,000l. damages.” Morn. Chron. 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 his 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, 1st. Not Guilty, on which issue was joined. defendant, who, upon examination, coromitted the plaintiff to close custody in the Tower for treasonable practices; but returned him his 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 injuria 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. ginal 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 legál 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. 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 counselior and secretary For the plaintiff, it was urged, that under the of state, and having received an information replication of De injuriâ suâ propriâ,' &c. it upon oath, on the 20th October, 1775, from is sufficient to shew any fact that is not consisone captain Francis Richardson, who on the tent with the justification. And though a new 19th was an adjutant in the guards, then on trespass cannot be given in evidence under that duty in the Tower of London, and who deposed, issue, it may be shewn that the original tresas stated at length in the plea, but substan-pass was unjustifiable. That though the oritially, "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. 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 1315] 16 GEORGE III. 'demesne.' Replication that the defendant 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⚫juria suâ propriâ, &c. Whatever confesses and avoids, as the tender of bail does in this case, must be suggested on the record, that the adverse party may be able to meet it in evidence. It is collateral matter, and out of the issue of the general traverse, which only goes to the facts of the plea. Therefore all subsequent misbehaviours, as abuses of distresses, &c. are in the regular course of pleading, constantly replied, and cannot be given in evidence. Besides, 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. 1999. 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 injuria 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 evidence. What disproves none of them, is improper. This refusal of bail, if true, disproves nothing that is advanced in the plea, and therefore 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. Nothing ought to be admitted in evidence, but Whatever therefore goes to disprove that cause is admissible evidence, but nothing else. 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, vol. 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. In the Letter from Candor to the Public Ad vertiser, 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 bead had that been the forfeit upon the like motive) and did an extraordinary act upon a suspicions 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 Southampton, P. Taylor, 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 100.; 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 burut, 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 Decemat Portsea aforesaid, in the county aforesaid, a ber, in the year aforesaid, with force and arms 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. Counsel for the Crown. Mr. Serj. Davy, Mr. Mansfield, Mr. Missing, Mr. Buller, Mr. Fielding. as soon as this misfortune bad happened, all imaginable enquiry was made, in order to find out the cause of it, but all to no purpose, no used there, particularly in the eastward part of fire or candle had been there, none ever is the building; nobody could tell by what means it would have passed as an accident, the causes it happened, and all enquiry was fruitless, and 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 afterwards, which led to an enquiry, and which enquiry produced the most ample and clear discovery that ever was laid before a court of justice. Mr. Fielding. May it please your lordship, and you gentlemen of the jury, this is an indictment against the prisoner at the bar for a crime of so atrocious and uncommon a nature, as to 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 indictment, 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 count is for setting fire to a certain building house, which is another very large building, Upon the 15th of January, in the Hemperected 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, somesiness, and I doubt not but your verdict will be bright; it appeared upon taking it up, that it thing which shone a little and appeared 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 and you gentlemen of the jury, I am of coun- which nobody could tell what to make of; 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 comthe name of James Hill, otherwise James bustibles of various kinds; there was oil of turHinde, 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 asof his present majesty, till when it had not en- tonishment and wonder, looking at each other 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 before 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 indictment. 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 fortu nately 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 Arson, 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 government, 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 recollect 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 human 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 circumstances of that day; among others it occurred (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-house; 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 suspicion then fell, from several vague indefinite cir, |