Take of the self's 4 'waiting there for that purpose; with intent | lace. And we find, that April 11, 1732, Edward Dalton and Richard Griffiths were tried at the Old-Bailey, for the murder of John Waller in the pillory, by pelting him with cauliflower-stalks, &c. and found guilty, and both executed at Tyburn.* 'that they should cause the said two persons to be apprehended and convicted for robbing bim the said Salmon on the king's highway, and so unjustly and wickedly procure to themselves the rewards mentioned in the act of parliament, proclamation, and other pa'rochial rewards for the apprehending of highwaymen; to the great displeasure of Al-mayoralty, 1756, two of the before-mentioned mighty God, and the great dishonour and scandal of the laws of this kingdom, and the ' evil example of all others, against his ma'jesty's peace, his crown and dignity, July 22, 1754.' Upon the evidence of Blee, and others that confirmed him in every thing, the Court declined calling more witnesses, though several were in court; and the prisoners making but a trifling defence, they were all found guilty. SENTENCE. Stephen M'Daniel, John Berry, James Egan (otherwise Gahagan), and James Salmon, to be imprisoned in Newgate for the term of seven years; and in that time to be each of them set in the pillory* twice, in the manner following: M'Daniel and Berry in Holborn, near Hatton-Garden; Egan and Salmon in the middle of Smithfield. Afterwards M'Daniel and Berry at the end of King-street, Cheapside; and Egan and Salmon again in Fleet-street, near Fetter-lane end and at the expiration of that time, to find sureties for their good behaviour for three years, and to pay a fine of one mark each. In June sessions, in alderman Bethell's miscreants, M'Daniel and Berry, together with one Mary Jones, were tried for murder, upon a conspiracy of the like nature against one Kidden (who was convicted and executed for a robbery on the highway, and at the gallows, in the most solemn manner, declared his innocence), on the following indictment: Stephen M'Daniel, John Berry, and Mary Jones, were indicted for the wilful murder of Joshua Kidden, in maliciously causing him to be unjustly apprehended, falsely accused, tried, convicted, and executed, well knowing him to be innocent of the fact laid to his charge, with an intent to share to themselves the reward, &c. Feb. 4, 1754.t after passing sentence on Mr. Reading, ante, See what was said by the Chief-Justice vol. 7, p. 310; and the charge given to the sheriff by Jefferies after passing sentence on Elizabeth Cellier, ante, vol. 7, p. 1209. "In p. 56, note (d) having mentioned Egan and Salmon, who on the 8th of March 1756, stood in the pillory, Mr. Barrington observes, That the offence of these criminals was undoubtedly of the most atrocious nature; nor do I see, saith he, why they might not have been indicted for murder, notwithstanding Mr. Justice Foster hath in his Reports, p. 132, Stephen McDaniel, John Berry, James Egan intimated his opinion, that such an indictment (otherwise Gahagan), and James Salmon, would not lie, and chiefly because there is no each once stood on the pillory, viz. M'Daniel such precedent.' As to this observation, I and Berry near Hatton-Garden, on Friday the have only to remark, that Mr. Justice Foster's 5th of March, 1756; and were so severely opinion in relation to M'Daniel, Berry, and handled by the populace, that it was with the Jones, (for Mr. Barrington mistakes in supatmost difficulty, that one of the sheriffs, and posing, that there was any foundation for inthe keeper of Newgate, who stood in a balcony dicting Egan and Salmon of murder,) is strongjust by, prevented their being utterly destroy-ly supported by sir Edward Coke, who informs ed; and so great was the mob, that the peaceofficers found it impossible to protect the prisoners from their fury; and Egan and Salmon stood in Smithfield on Monday the 8th. They were instantly assaulted with showers of oystershells, stones, &c. and had not stood above half an hour, before Egan was struck dead; and Salmon so dangerously wounded in the head, that it was thought impossible he could recover. Whatever punishment they might deserve from the law, it is certain they ought not to be killed through the rage of the popu-judgment of the law. The only instance of a し * See the Case of Elizabeth Cellier, ante, vol. 7, p. 1209, and Rex v. Bowers, and Rex v. Beardmore, cited in a Note to that Case. See, also, Mr. Barrington's Observations re. specting the pillory, quoted and referred to in Notes to that Case, and to the Case of lord Audley, vol. 3, p. 401, of this Collection. us (3 Inst. 48,) That to procure the death of an innocent person, by giving false evidence against him, was not holden for murder in his time." Dodson's Preface to Foster's Crown Law, 2d edition. "It has been much doubted whether a person wilfully giving false testimony against another, in order to accomplish his death, can be indicted of murder, if the innocent party be convicted thereon, and suffer death by the prosecution of this sort in modern times was in the case of M'Daniel, Berry, and Jones, who were indicted for murder, upon a conspiracy of this nature, against one Kidden, who was convicted and executed for a robbery upon the highway, upon the evidence of Berry and Jones. They were all convicted upon this indictment, in which the special maiter was set "The fact was plainly proved against them upon this indictment, and the special matter being set forth in the indictment, the Court forth; but judgment was respited in order that the point of law might be more fully considered, upon a motion in arrest of judgment. But the attorney general declining to argue the point, the prisoners were discharged of that indictment. Mr. Justice Foster intimates a strong opinion against the validity of such an indictment, chiefly as it seems on the ground of its disuse for many ages past; though he admits that there are strong passages in our ancient writers, which greatly countenance such a prosecution. And we have the authority of Mr. Justice Blackstone [4 Black. Com. 196,] for saying, that the attorney general, in the case of M'Daniel and others, did not decline arguing the point of law from any apprehension that it was not maintainable, but from other prudential reasons; and therefore that nothing should be concluded from the waving of that prosecution. What the chief of those prudential reasons was he alludes to in the same passage, namely, to avoid the danger of deterring witnesses from giving evidence upon capital prosecutions if it must be at the peril of their own lives. With respect to the offence in foro conscientiæ,' it is without doubt as aggravated a species of murder as any that can be conceived." East's Pleas of the Crown, c. 5, s. 94. To the above passage, Mr. East subjoins the following Note: "The author has heard lord Mansfield C. J. make the same observation;" [as Mr. Justice Blackstone]" and say, that the opinions of several of the judges at that time, and his own, were strongly in support of the indictment," "To treat one unkindly, to work on his fancy, and to impair his health by fear and grief, and in that way to conduct him to the grave, is not that mode of killing (however wicked and depraved it may be) that the law takes cognizance of. But, on the other hand, if injury to the person is the immediate, direct, and almost inevitable consequence of the act done, it will constitute murder, though there be no blow or bodily harm, strictly so called, flowing directly from the hand of the prisoner. Wilfully to expose a sick person, or new born infant, to the inclemency of the weather, or to do any act which places another in imminent hazard, and death follows, amounts to murder; in which class may be reckoned the case of one swearing falsely in a capital trial, to facts that produce a verdict of guilty; provided it is made out, that it was such false swearing that produced the verdict of guilty." Burnet's Treatise on the Criminal Law of Scotland, chap. 1, p. 7, Note. "In England, there was also, by the ancient common law, one species of killing held to be murder, which may be dubious at this day; as suffered them to be convicted (Death), but immediately respited judgment; in order that the point of law might be more fully cousidered there hath not been an instance wherein it has been held to be murder for many ages past: I mean by bearing false witness against another, with an express premeditated design to take away his life, so as the innocent person be condemned and executed (Mirror, c. 1, s. 9. Brit. c. 52. Bracton, 1. 3, c. 4.) The Gothic laws punished in this case the judge, the witnesses, and the prosecutor; peculiari pœnâ judicem puniunt; peculiari testes, quorum fides judicem seduxit; peculiari denique et maximâ auctorem, ut ho micidam.' (Stiernb. de jure Goth. 1. 3, c. 3.) And, among the Romans, the lex Cornelia, de sicariis,' punished the false witness with death, as being guilty of a species of assassination. (Ff. 48, 8. 1.) And there is no doubt but this is equally murder in foro conscientiæ' as killing with a sword; though the modern law (to avoid the danger of deterring witnesses from giving evidence upon capital prosecutions, if it must be at the peril of their own lives) has not yet punished it as such." Blackst. Comment. book 4, ch. 14, vol. 4, p. 196. And in another place (book 4, chap. 10, s. 16,) he says, "It has sometimes been wished, that perjury, at least upon capital accusations, whereby 200 ther's life has been or might have been de stroyed, was also rendered capital, upon a prin ciple of retaliation; as it is universally by the laws of France. [Montesq. Sp. L. b. 29, chap. 11.] And certainly the odiousness of the crime speaks strongly in favour of the French law. But it is to be considered, that there they ad mit witnesses to be heard only on the side of the prosecution, and use the rack to extori a confession from the accused. In such a con stitution therefore it is necessary to throw the dread of capital punishment into the other scale, in order to keep in awe the witnesses for the crown; on whom alone the prisoner's fate depends: so naturally does one cruel law beget another. But corporal and pecuniary punishments, exile and perpetual infamy, are more the fact is openly discussed between witnesses suited to the genius of the English law; where on both sides, and the evidence for the crown may be contradicted and disproved by those of the prisoner. Where indeed the death of an innocent person has actually been the consequence of such wilful perjury, it falls within the guilt of deliberate murder, and deserves an fact inflicted. [Britton, c. 5.] But the mere equal punishment: which our antient law in attempt to destroy life by other means not being capital, there is no reason that an attempt by perjury should; much less that this crime should in all judicial cases be punished with lessens their effect, when applied to crimes of the deepest dye; and, detestable as perjury is, it is not by any means to be compared with some other offences, for which only death can be inflicted: and therefore it seems already death. Lupon motion in arrest of judgment.* But the attorney-general declining to argue the point of law, the prisoners were at a subsequent session discharged of that indictment. “This prosecution, I am satisfied, arose from mg a laudable zeal for keeping the fountains of justice pure and unpolluted, and a just indignation against an offence of this signal enorsos mity. "It must be confessed, that there are strong passages in our ancient writers, which greatly (except perhaps in the instance of deliberate murder by perjury) very properly punished by our present law, which has adopted the opision of Cicero [de leg. 2, 9,] derived from the aw of the twelve tables, perjuria pœna divina, exilium; humana, dedecus.'" By the Commons' Journal it appears, that on November 17, 1692, the House gave leave o bring in a bill that perjury, and subornation the subordination in the printed journal] of pergury in capital cases, shall be felony without enefit of clergy. countenance a prosecution of this kind. But those writers must always be read with great caution upon the subject of homicide. "Bracton, whom the writers of that age for the most part follow, was a doctor of both laws before he came to the bench. It is no wonder therefore, that having before him no tolerable system of the English law, then in its infant state, he should adopt what he found in the books of the civil and canon law, which he had read, and seemeth to have well understood.* Succeeding writers of that age refined upon him, and in their loose way wrote upon the subject rather as divines and casuists than as lawyers; and seem to have considered the offence merely in the light in which it might be supposed to be considered in foro cæli. "But the practice of many ages backwards doth by no means countenance their opinion. "And during all the violence and rage of the prosecution against Dr. Oates, it seemeth not concerned in it, or of the Court, who would not to have entered into the imagination of those have spared him if they could have taken their On December 5, the bill was presented and full blow at him, that the offences of which he was convicted could have been so charged as Baad a first time, and on the 19th, 20th, and to have reached his life. Though the judg69th of the same month, and the 3d and 19th f January, different orders were made for ment they passed on him, the most cruel, I bevading it a second time, but I find not any fur-lieve, that ever was given in Westminster-hall in case of a misdemeanor, might probably have ended in his death:"+ f the! hat de e rack her mention of it. The session was terminated by prorogation, Foster's Reports, p. 131, 132.-" There ing a doubt, whether the facts proved against em amounted in law to murder, which was have been argued before the judges, if the torney-general had not declined it. It is a ubt which could not have arisen in any other untry, where the Roman law is allowed to we any weight; for by that law it is expressly clared, That witnesses, who by a false and alicious testimony procure an innocent man be capitally condemned, shall be deemed nilty of murder. Quive falsum testimonium lolo malo dixerit, quo quis publico judicio rei capitalis damnaretur,' Digest. lib, 48, tit. 8, 2." Former Edition. the 175 Egan was killed in the pillory, but M'Daniel and Berry continued in Newgate under their former sentence till Feb. 26, 1762, when John Berry died in Newgate; and the year following M‘Daniel procured himself to be sent abroad for life to the Indies, as a soldier.-Salmon, 1 take it, died in Newgate before. See Dig. 1. 48, tit. 8, ad Legem Corneliam de Sicariis: 1. 9, tit. 2, ad Legem Aquiliam. And the writers ou the canon law, collected by Linwood, I. 1, tit. 11. V. Ne Occides. Former Edition. + See the proceedings against him, and what fell from the Court at the time of giving judgment, in vol. 10, p. 1315. 536. The Trial of WILLIAM BARNARD, at the Sessions-House in the Old-Bailey, before the Right Hon. Sir Charles Asgill, knt. Lord-Mayor of the City of London, Sir Michael Foster, knt. one of the Justices of the King's-Bench, Sir Sidney Stafford Smythe, knt. one of the Barons of the Exchequer, Sir William Moreton, knt. Recorder, and others his Majesty's Justices of Oyer and Terminer, for the said City, and County of Middlesex, on Wednesday the 10th, and Thursday the 11th of May, on the Black Act; for sending a Letter in a fictitious Name to Charles Duke of Marlborough, demanding a genteel Support for Life: 31 GEORGE II. a. D. 1758. WILLIAM BARNARD, late of the parish of St. James's, within the city and liberty of Westminster, in the county of Middle'sex, yeoman, was indicted, for that he being ▲ an ill-disposed person, and seeking wicked gain, and little regarding the laws and statutes of this kingdom, or the pains and penalties therein contained, after the 1st day of June in the year of our Lord 1723, to wit, on the 3d day of December, in the 31st year of the reign of our sovereign lord George the • second, king of Great Britain, &c. 1758, with ⚫ force and arms, at the parish aforesaid, in the • county aforesaid, knowingly, unlawfully, wickedly, and feloniously, did send a certain letter in writing, with a fictitious name, to <wit, with the fictitious name of Felton thereto signed and subscribed, to the most noble Charles duke of Marlborough, and directed to the said duke, by the title and description of his grace the duke of Marlborough, demanding therein a certain valuable thing, to wit, a genteel support for the life of him the said William Barnard, against the form of the statute in such case made and provided, to the evil example of all others in the like case offending, and against the peace of our said lord the king, his crown and dignity.' After Mr. Moore had opened the indictment, Mr. Serjeant Davy spoke as follows: May it please your lordships, and you gentlemen of the jury; I am counsel in this cause for the prosecution against the prisoner at the bar, who stands indicted on an act of parliament made in the ninth year of his late majesty, very well known by the name of the Black Act. That act of parliament, reciting the several mischiefs, and constituting several felonies, amongst other things, enacts, That if any person shall knowingly send any letter, without any name subscribed thereto, or signed with a fictitious name, demanding woney, venison, or other valuable thing; every person so offending, being thereof lawfully convicted, shall be adjudged guilty of felony, and shall suffer death as in cases of felony, without benefit of clergy. It is on that act that this indictment now comes before you, that you have heard read. You see it is for sending a letter; for it is on the first of these letters that the present indictment is founded; the others are sent in conse quence of the first, and explanatory of his intentions. I will open to you, as concisely as I can, the several circumstances we have in evidence, in order to affect the prisoner at the bar: they are circumstances of that nature, corresponding so exactly with the prisoner's case, affecting him so very minutely, that the several circumstances do infer, I had almost said an impossi bility of his innocence: you will find they all tally so exactly, they are so particularly relative to him, that it will be offering violence to every rule of reason, not to find him guilty. Gentlemen, on the 29th of November, a letter was found under the door of the Ord nance-office, directed to his grace the duke of Marlborough: upon opening this letter, which was wrote in imitation of print-hand, bearing date that day the 29th of November, it will be necessary, for the sake of the following circumstances, to desire your attention to the several parts. These are the words: "To his Grace the Duke of Marlborough. "xxviiii November. "My lord; as ceremony is an idle thing upon most occasions, more especially to per sons in my state of mind, I shall proceed im. mediately to acquaint you with the motive and end of addressing this epistle to you, which is equally interesting to us, both. You are to know then, that my present situation in life is such, that I should prefer annihilation to a continuance in it: desperate diseases require desEperate remedies; and you are the man I have pitched upon, either to make me, or to unmake yourself. As I never had the honour to live among the great, the tenor of my proposals will not be very courtly; but let that be an argument to enforce the belief of what I am now going to write. It has employed my invention, for some time, to find out a method-Sir, said the duke, do you know me? I am to destroy another, without exposing my own 1 life; that I have accomplished, and defy the law. Now for the application of it. I am desperate, and must be provided for: you have it in your power, it is my business to make it g your inclination, to serve me; which you must determine to comply with, by procuring me a genteel support for my life; or your own will be at a period before this sessions of parliament is over. I have more motives than one for singalling you out first, upon this occasion; and I the give you this fair warning, because the means I shall make use of are too fatal to be eluded by the power of physic. If you think this of any consequence, you will not fail to meet the author on Sunday next, at ten in the morning, gte or on Monday, (if the weather should be rainy on Sunday) near the first tree beyond the stile inca in Hyde-park, in the foot-walk to Kensingtou: secrecy and compliance may preserve his you from a double danger of this sort; as there is a certain part of the world, where your death has more than been wished for, upon other motives. I know the world too well, to rust this secret in any breast but my own. Α few days determine me your friend or enemy. "FELTON." be se OST SHU "You will apprehend that I mean you should be alone; and depend upon it, that a liscovery of any artifice in this affair will be atal to you: my safety is insured by my sience; for confession only can condemn me." This letter containing every thing that is dreadful, that might raise apprehensions of terror, subscribed by a name which is painful o almost every ear-the name Felton! That was the name of the assassin that stabbed the Juke of Buckingham at Portsmouth. My lord duke, not intimidated by the letter, though greatly surprized at it, and willing to ind out the author, was not afraid to endeavour apprehend him; he went alone to the spot, and at the time appointed; however, there was some attendant on his grace at a distance, in order to observe what passed on the occasion. My lord duke had been there some time on horseback, and as much undressed as a man of his quality is. He had pistols before him; he had been there some time, and saw nobody at all at that particular place. After waiting some considerable time, he was returning, and ob. served a person come to the particular spot just VOL. XIX. by the tree beyond the stile in Hyde Park, by the foot-walk to Kensington: that person held a handkerchief to his mouth in a seeming disconsolate manner, looking into the water, and stood still a very considerable while. Upon his grace seeing this, that the man was not pursuing any way, the duke had no doubt in his own mind, but that this man (be he who he would) must be the person who had sent him this letter. The man sauntering just at the place, the duke rode up to the spot, expecting the person would speak to him: his grace asked the man, Whether he wanted to speak to him? He said, No. the duke of Marlborough; telling you that, perhaps you have something to say to me.-No, my lord. No notice being taken, the duke came away. Gentlemen, you see, this was an appointment on a Sunday to meet at a place where several people might be supposed to be walking. What was the view of that person may be seen by and bye. The author of this letter speaks of his being exceedingly guarded against the possibility of a detection; he boasts of the care and caution he had used for that purpose,—he defies the law,-nothing but confession could condemn him,-bis safety was insured by his silence, he knew the world too well, to trust this secret in any breast but his own. A few days after, in the same week, the duke received a second letter. This also was put under the door of the Office of Ordnance, and was also wrote in imitation of a print-hand: but the directions of both the letters are not; there will be occasion to take notice of that circum. stance by and bye. The second letter is in these words: "To his Grace the Duke of Marlborough. "My lord; You receive this as an acknowledgment of your punctuality as to the time and place of meeting on Sunday last, though it was owing to you that it answered no purpose. The pageantry of being armed, and the ensign of your order, were useless, and too conspicuous: you needed no attendant; the place was not calculated for mischief, nor was any intended. If you walk in the west isle of Westminster Abbey, towards eleven o'clock on Sunday next, your sagacity will point out the person, whom you will address by asking h company to take a turn or two with you. You will not fail, on inquiry, to be acquainted with the name and place of abode; according to which directions you will please to send two or three hundred pound bank notes the next day by the penny post. Exert not your curiosity too early it is in your power to make me grateful on certain terms. I have friends who are faithful; but they do not bark before they bite. I am, &c. &c. : F." Gentlemen, you see, the writer of the second letter speaks of being himself in the Park, or at least of knowing that the duke was there, at the time and place appointed: and therefore this was a farther circumstance to convince the 3 G |