759. JOHN SHELLEY otherwise SHIRLEY otherwise SHIRLOCK proceedingsdefend This name instance is in set 1537. This set is in the group(s): GarrowsClients . was indicted for that he with divers other persons to the amount of ten, being disturbers of the peace of our Lord the King, on the 19th of June last, with fire arms and other offensive weapons, to wit, with divers large sticks and bludgeons and a certain gun called a blunderbuss, and a pistol, and a certain sword called a cutlass, unlawfully, riotously and feloniously did assemble themselves together and make an assault upon Macken Simpson proceedingsvictim , William Fillery proceedingsvictim , and Thomas Buckland proceedingsvictim , then and there being officers of our Lord the King, and in the execution of their office, he did then and there aid and assist in taking away a large quantity of tea, to wit, three hundred pounds weight of tea, being unaccustomed goods liable to pay duties, and which had had not been paid or secured; against the statute .

Another Count for that he and five others did make an assault and affray, &c. and did aid and assist in rescuing and taking away the same, after the seizing thereof.

Another Count for that he and divers other persons, to the number of five did obstruct and resist.

Another Count for forcibly assaulting, hindering, obstructing, opposing, and resisting the said Simpson, Fillery, and Buckland, in securing such tea against the statute.

The indictment was opened by Mr. Silvester.

Mr. Wilson Counsel < no role > for the Crown thus opened the case:

May it please your Lordship, and you Gentlemen of the Jury, the offence with which the prisoner at the bar John Shelley < no role > This name instance is in set 1537. This set is in the group(s): GarrowsClients . stands charged, was made a capital felony, by the statute of the 19th of the late King's reign which after stating that divers gangs have resisted the officers of the Excise and customs, enacts among other things, that if they should be assembled to the amount of three or four, with any offensive weapons in order to be aiding and assisting, in rescuing or taking away any goods from the officers of the excise, that persons so doing shall be guilty of felony without benefit of clergy.

Mr. Garrow, Counsel for the Prisoner, I desire the witnesses for the Crown and Prisoner may go out of Court.

Mr. Wilson. I was just mentioning to you the material facts and circumstances of this felony; namely that the prisoner was with others assembled, with offensive weapons for the purpose of rescuing and assisting in rescuing unacustomed goods, which had been seized by his Majesty's officers of the revenue; and I am sorry to say I am affraid it is not less necessary now to enforce those laws than it was then to make them; but however I shall take no notice nor make any observation on the crime itself, I shall state the circumstances of the case which are to be laid before you, as I am instructed, against the prisoner; and they are shortly these, that on the 19th of June last, an officer of the Excise having received some information, that there was some smuggled tea at a place called Aperton in this county, at the Fox and goose, at the house of John Marsh < no role > ; this officer of Excise took two other officers and a soldier to search, and there they found concealed three hundred and thirtythree pounds weight of tea; they carried a horse and cart with them, and they seized this as unacustomed goods, and loaded the cart with it, and came back towards London; on their way to London they met the prisoner at the bar and two more men; they had some suspicion he was going after the tea, for reasons which they will tell you, he took no notice of them, and very soon after returned and looked very earnestly, no word passed, and the prisoner and his companions made the best of their way, and the Excise officer s and the soldier that was with them, with the horse and cart come on to town without any molestation; and in the middle of the day between twelve and one, in the street of broad St. Giles's, they were met by the prisoner and several others, to the number of thirty or forty, some with bludgeons, one with a blunderbuss, and another with a pistol, they were attacked in the middle of the street in broad day, beat and wounded, and extremely ill used, some were obliged to be carried to the hospital, and continued there a considerable time; one of the men Simpson standing and leaning against a post and bleeding, the prisoner at the bar as he went off with the cart, gave him a hard blow on the head as he passed by, and said damn you; the cart and the horse were carried off in triumph, these persons were not then in a situation either to resist or to pursue; it happened however that after they had got a very little way from the town, a constable and some other people not of this first party, saw these people going in a very suspicious way, and the constable got a superior force, and at last the horse and cart were retaken and carried to the Custom-house: Gentlemen, there are some of the circumstances which I am instructed to say will be proved, and if they are, I am affraid it will be impossible for you to do otherwise by your verdict than to say that this man has been guilty of the crime imputed to him within the full spirit of it.

WILLIAM FILLERY < no role > sworn.

Examined by Mr. Silvester.

I am an officer of Excise, I went to seize some tea in consequence of an information, to a place called Apperton, at the sign of the Fox and goose; Mr. Simpson, Thomas Buckland < no role > , and a soldier John Chatterton < no role > .

When you came there what did you find? - We looked into the out houses, and in one of them we found twelve bags of tea.

Court. Were they all in the same sort of packages? - A paper bag, a canvas bag, and a oilskin bag, and a sailcloth bag sewed all up compleat, they were all in the same packages, but different sorts of tea.

What weight might this be? - The neat weight of them three hundred and thirty three pounds; we cleared the bags to see the weight, they were covered over with straw, we immediately put them into the cart and went off; we had each of us a glass of brandy, we did not stop a minute.

How far is Apperton from London? - About seven miles and a half, this was a cart that Mr. Buckland hired in Old-Street, we took it down for the purpose; in our way to London we met two men on horse back just on the top of the hill called Hanger-hill.

Who were these two men? - I have seen one of them since, but the other I have not seen.

Who was that one? - That is the Gentleman (pointing to the Prisoner) he was on horseback, he turned back several times and looked at us, there was a post-chaise just before, but the horsemen were some distance behind the post-chaise; there were two men in the post-chaise, I saw these men afterwards, we met them on Hanger-hill they passed us, it is about half a mile on this side of Apperton nearer London; we came on till we came near Kensington Gravel-pits just coming up the hill this Gentleman the prisoner passed us again.

Who was in company with him then? - Nobody, I did not notice any body.

Was any thing said? - No, not a word, then we proceeded on further till we came to Broad-Street, St. Giles's, about a quarter or twenty minutes before one, I am not sure to a minute, I was walking along the pavement, and somebody knocked me down, I was not driving the cart, I strove to get up, and I got nearly up and somebody knocked me down again; when I got up I stood on the side of a post, and I saw the prisoner among a number of people fifteen or twenty, there might be more or there might not be so many.

Had he any thing in his hand? - I cannot say; the people that were with him had sticks, and he might have one for any thing I know, I cannot say whether he had or not, I was so stagnated; three of them made an attempt at me, the people came to take my weapon away.

What weapon had you? - a small cutlass, two men took hold of the blade of it, and swore if I did not deliver it to them they would shoot me; some man that had a blunderbuss stepped up, and said damn your eyes take care, I will blow his brains out.

How were these men armed that attacked you? - All with sticks, such as good sized walking sticks with knobs to them, some small and some large, they snapped the blunderbuss, but it did not fire.

Was there any flash in the pan? - No, I made an attempt to strike at the man with the blunderbuss with a cutlass, but several of them prevented me, they beat me on the side of the house, and there the others snapped the blunderbuss a second time at me, seeing that I attempted to run into a house that was a hair dresser's, and the blunderbuss snapped at me again, and somebody struck at me with a stick, but I am not sure who it was, I could not see; he missed me but hit the door post very hard; I had not been in above a minute before the cart and horse was drove by me by three men, two or three of those that were there with their sticks; the man beat the horse very much, there was a great mob, a hundred or two people, I followed the cart all up that street, and into Bloomsbury-square, and at the end of Dyot-street, I heard somebody cry, let him go, let him go, and I saw one John Cook < no role > with the prisoner in his arms, and I jumped up and said if he did not go quietly and easily with him, I would run him through with the cutlass, he struggled a good deal, but there was a many people more came and assisted us and we took him to the Justice's.

During the time that they were beating you with the blunderbuss, did you see the prisoner? - Not after the time that I was first knocked down.

Did you see the other persons that struck you? - No, I felt it, I did not see them strike me, they struck me behind.

Cross-examined by Mr. Sheppard, one of the Prisoner's Council.

I believe through the scuffle in St. Giles's there were a great number of people collected together, were there not? - Yes.

Their curiosity was excited? - Yes.

You was knocked down before you saw the prisoner? - Yes.

When you got up you saw him standing? - He was among the people.

Several of the people had sticks? - I cannot say the prisoner had a stick, I will not swear that he had or had not.

Was the cart gone up Bow-street before you was knocked down? - No.

Then you was before the cart? - I was on the side of it, the prisoner was before the cart, nearer towards Drury-lane.

Of course, if the prisoner was before the cart, he was not with the man that knocked you down? - He did not knock me down, I was knocked down twice from behind.

Did the cart overtake the prisoner? - He was as nigh to it as I am to you.

Mr. Wilson. Had you known this man before? - I never saw him before that morning.

Prisoner. That gentleman and this Mr. Buckland came to Clerkenwell.

Did you go to Clerkenwell? - Yes.

For what? - I went along with a gentleman that was there as a witness, and he would not go by himself, I went with Mr. Rice Jones and Mr. Lucas, I only went in company with them.

Do you remember any body else being taken up for this business? - There was a man taken up for the same crime.

Was that man sworn to? - I do not know.

Do not you know that man was discharged? - He was.

Was not he taken up upon your accusation? was not you a witness against him? - I was no witness against him, they asked me if I knew him, and I told them no.

THOMAS BUCKLAND < no role > sworn.

Examined by Mr. Wilson.

I am an officer in the Excise, I was with the last witness on the 19th of June last, and went to Apperton with him, and Chatterton a soldier, and one Mackin Simpson, an officer of the Excise; we took twelve bags of tea, and proceeded the best of our way to the Office; after we had seized it, we brought it in a cart and horse, and upon Hanger-hill we met two men on horseback, they looked very hard at us, and we looked at them, and made a particular observation of them; we made our way to town, and at Kensington Gravel-pits the prisoner passed us on horseback, coming to London.

Are you sure it was the same man? - Yes, there was another with him, we came on towards the Excise Office, we came into Broad St. Giles's, and there a large mob arose, and there was one man that pointed us out to them, and a large mob came up, three of them came up to me, the cart was before me, we did not expect any opposition.

Court. Had they any thing in their hands? - A bludgeon, I saw nothing but bludgeons; so they attacked us, and I defended myself as well as I could; I lost sight of the horse and cart and my comrades, but as soon as I could get on I went in pursuit of them, and the goods were retaken.

Did you see the prisoner in St. Giles's at all? - No, Sir, the last sight I had of him was at Kensington Gravel-pits.

Cross-examined by Mr. Garrow, another of the Prisoner's Council.

How far was you behind the cart in St. Giles's at the time you was attacked? - Almost close to it, the greatest part of the mob was before me.

You could see distinctly, I take it for granted? - There was a great mob I could see from all quarters.

What sort of bludgeons were they? - They were sticks, large sticks.

Were they common walking sticks, or were they bludgeons? - They were what you call bludgeons.

Do you mean to swear that? - I will swear they were sticks.

Court. It does not matter whether they were sticks or bludgeons.

Mr. Garrow. My Lord, it shews the promptitude of the witness at least.

Thomas Buckland < no role > . I will swear they were large uncommon sticks.

Mr. Wilson. They were not made of very soft wood I suppose? - No.

MACKIN SIMPSON sworn.

Examined by Mr. Silvester, one of the Council for the Crown.

What are you? - An officer of Excise.

Court. Come to Broad St. Giles's at once. - I was driving the cart in St. Giles's, just before I came to Drury-lane, perhaps twenty yards, and I saw a great number of people collecting about me, coming after us; a soldier came and asked me for a blunderbuss which we had in the cart; I said for God's sake, soldier, for God's sake do not fire, you may hurt the innocent; when the soldier got the blunderbuss, and had a horse pistol likewise, I saw a man coming to strike me on the left side of the cart, he came and knocked me out of the cart, who he was I do not know; as soon as I got up again, I saw the prisoner at the bar come up to me, and hit me on the side of my head, and knocked me against a plug, where the water comes through; I am very positive to the man. After that there was a number of people came about me, and I was going to rise, and he says, damn him, murder him a villain! after I got up again I was quite stupified; at last I saw the cart going away, I endeavoured to follow it, and opposite Bow-street, St. Giles's, at the corner of Hart-street, I laid hold of a post, I found myself very weak; with that the prisoner came up with his stick again, and grinned his teeth at me, and said, Ah, damn you; and struck me a second time.

Court. Where did he strike you? - I do not know where I received the blow, I had the pistol in my hand, and he knocked it out of my hand, and I was stooping to pick the pistol, and he then knocked me against the rails, and I crept into a house there by some means; I know no more till I went up and saw that the very man, the prisoner at the bar, was taken, which was the very man that struck me; this might be about four or five minutes after.

Court. Where did you go? - I do not know the street.

Was it a neighbouring street or a distant one? - It was two or three streets, I was very weak and bled a good deal; I went in a coach to the hospital and was dressed.

Mr. Sylvester. Are you positive that was the man that struck you a blow in St. Giles's, and afterwards struck you against the post? - I am positive to the man.

Cross-examined by Mr. Sheppard

I think you say you was in the cart when you was first attacked? - I was, I gave the blunderbuss out of the cart to the soldier, and desired him not to fire for fear of hurting an innocent person; the man said damn you, get out of the cart, and was going to strike me, I held a pistol at him.

When the prisoner struck you against the rail, you told us that he struck you, but you forgot to tell us that you held a pistol at him; did you not present the pistol at him before he knocked you against the rails? - I did present it, but it was not cocked.

Cocked or uncocked, did you present it? - I did.

What was the prisoner committed for at first? - I believe for a felon; I am sure it was for felony and striking me.

Do not you know he was committed for an assault at first? - I charged him with taking away the tea.

Will you swear that the Justice committed him for a felony at first? - I never examined the Justice's books, I had no business with them; I charged him with robbing us of our cart and horse.

Did you charge him with that at first? - I do not swear that I did at first, but before he was taken out of the Justice's I did, and I said he should have no bail, he had robbed us; I charged him with robbing us, I do not know how he took it down; I believe I told him every thing as nigh as I can; it was within five or ten minutes from the time he struck me; I saw him in Russel-street.

JOHN CHATTERTON < no role > sworn.

I am a soldier, I was with the other witnesses with a horse and cart, I saw the prisoner that day, I met him about half a mile from this place where they made the seizure, I saw him in Broad St. Giles's, it was between twelve and one in the middle of the day, I and the other three were with the horse and cart; I saw the prisoner come up to the cart, and I saw a large mob noisy there, and I ran up to the cart immediately, and asked Simpson what was the matter, he said he did not know, then there came up three or four and struck him as hard as they could.

Court. With what? - Large bludgeons, very large sticks indeed, they knocked Mr. Simpson off the cart, he had like to have tumbled atop of me.

Court. Did you see the prisoner do any thing? - He struck me with a stick and knocked me down, and then said, damn him, kill him, knock him on the head; I had nothing to defend myself with, I had lost my weapon, I had a blunderbuss under my coat which the gentleman gave me out of the cart, but I had lost that in the scuffle; I do not know what became of the horse and cart, I was so knocked about in the affray I lost the horse and cart.

You are sure that Shelley, the prisoner at the bar, was the man that knocked you down with the stick? - I am quite sure of it, I saw him do nothing else.

Cross-examined by Mr. Garrow.

Was you in your soldier's dress? - No; I was not, I had a brown great coat on.

So you took this blunderbuss in order to fire? - I had it in my own defence.

Was there any other blunderbuss there? - I did not see any, there might be, but I did not see them, I could not have seen them, I was knocked down, and my head swimmed about, I did not know where I was.

When you first came up to Simpson he had been beat sadly? - He was knocked out of the cart by somebody, but who I do not know; I never saw the prisoner do any thing to Simpson: I attended that day before the Justice, but I cannot say what the charge was; I was examined before the magistrate, but I did not sign any thing, I was so ill, I was very much bruised indeed, I was knocked down by a hand whip.

What was the charge against the prisoner at that time? - It was for assaulting Simpson, he was committed to gaol for that I believe.

Was there any charge against him for stealing tea? - I was so ill I could not take any notice.

Did you ever attend again before the Justice after the first day? - No, I did not.

Mr. Garrow. My Lord, here is a strange singularity in this case, to call it by no other name; this man is examined before the Justice and committed for an assault on Simpson, on the 21st he was committed for the offence against the Excise laws, and the informations actually returned are of another day, and of other persons, so that we are perfectly in doubt as to every thing.

Mr. Wilson. My Lord, the Excise officers knew nothing of this statute, nor the Justice of the Peace neither.

Mr. Garrow. The man was never examined a second time.

Court. If you shew that he suppressed any charge or any facts, that is another thing; the only inference to be drawn from this is, they did not know the extent of the Excise laws.

Mr. Garrow. My Lord, my observation is this, if these informations had been here I could have confronted the witnesses; they are suppressed, and the new examinations, of which we cannot try the truth, because we know nothing, are brought here.

BENJAMIN RUTTER < no role > sworn.

Examined by Mr. Silvester.

I live in Newtoner's-lane, near St. Giles's.

Do you know the prisoner? - I know him by sight.

What did you see that man do to Simpson < no role > the officer? - I am a smith, and about a quarter after one I was going out with some iron, and I saw a few people gathered together in Broad St. Giles's, I saw Mr. Simpson in the cart, and somebody struck him, but I cannot tell who; after that I saw the prisoner at the bar hit him with a stick and he fell; afterwards a man came up with a cutlass and cut him over the head; he was getting up, he was on his hands and knees, and then he fell again; after that there were more blows struck, but amongst so many I could see no more till after two or three men laid hold of the cart and horse, and took the cart up Bow-Street, I followed them along Bow-street, and I saw Simpson stand bleeding at the corner of Hart-Street, but before that I saw the prisoner at the bar turn several times and shake his stick, but what he said I cannot say; and as the cart was passing by the end of Hart-street, the prisoner was behind the cart with a stick in his hand; I saw Mr. Simpson stand bleeding against some iron rails at the corner of Hart-Street, he immediately went out of the middle of the road, and he struck up with his stick and struck Mr. Simpson over the head; Mr. Simpson immediately fell, and crept into a house, but what house I cannot tell; I saw some more blows struck, that I can take safe oath of; there were so many of them that I could not see every one, but I saw Simpson knocked down and cut with a cutlass, and expected him dead.

Cross-examined by Mr. Sheppard.

Who are you? - I am a smith, I live in Newtoner's-lane.

Do you know Tillary or Simpson? - I never saw them before that day, to the best of my knowledge, to know them, I know them on account of his being so cut.

Do you remember seeing Simpson present a pistol? - I saw him have either pistol or blunderbuss in his hand when he came out of the cart, I did not see him present a pistol to that man; I cannot recollect I saw him put a pistol to any body at that time; I saw the man that laid hold of the horse have a blunderbuss in his hand.

Who struck Simpson? - I cannot tell.

Why this blow must have made him insensible? - He laid for some little time, about a minute, the prisoner was walking after the cart.

How long did Simpson stay in the house? - I cannot tell.

Was it a quarter of an hour? - No, nor half the time.

Jury. Where was the cart going then? - Up Bow-Street.

JAMES MARTIN < no role > sworn.

Examined by Mr. Wilson.

I was at the end of Bow-street, about twenty minutes before one, it was this day three weeks, there was a man with a blunderbuss came up, I thought it was a mad bullock at first, he was in a sailors jacket and a flapped hat, and he knocked down Tillary; I did not know the man's name then: he walked backwards and forwards, I was as near to him as I am to you, a cart came up and a mob of folks, and I wanted to get out of the mob; there were some more men that I saw with sticks and things, I could not tell who they were, the cart went into Russel-street, and Bedford-street, and through the square.

Did you see the prisoner? - Not at that time but afterwards, I did not see him till after the cart passed; I saw the prisoner strike Simpson over the head with a stick, and with that the prisoner said keep away, keep back; he struck him and knocked him down; I believe the cart was gone a good way, there was a number of people, the prisoner was a good way behind the cart when he struck the man; I lost sight of the cart; the prisoner went after the rest of the mob, and I was near to him at the time, and he was taken by a man, he was running, he had hold of the rails in Russel-street, at the end of Dyot-street, a stick fell down, I had hold of the flick myself, I let it drop immediately, some people came up and said let the poor man go, let him go; in the mean time Simpson came up all in a gore of blood, then they did not let him go: I should not have troubled myself about this affair, I did not go the Justice's on Saturday, I was sent for to speak to another man that was taken up, which happened to be acquitted.

You are sure it was the prisoner? - I am too sure.

Cross Examined by Mr. Garrow.

You are too sure are you; what are you? - I live in Holborn, I am a live Poulterer.

Some of your poultry consists of dogs, does not it? - Sometimes.

Now how many dogs have you in that poulterer's shop at this hour? - I cannot tell.

But you will tell! - I cannot.

There may be a good many come in since you came out you know? - There may no doubt, for I have bespoke a pack.

You are a very wholesale dealer in this sort of poultry called dogs, you cannot give any thing like a guess how many of these dogs you have in the shop at present, now have you so few as thirty? - There may be.

I believe you have had the misfortune to be here before? - I never was here before only to give a man a character.

I am a little in your se crets Master Martin, was you examined to that man's character? - I was.

What sort of treatment did you meet with here, was not you sent back to that building there? - No.

You saw this man carried into the Justices about one? - Yes.

You did not think it necessary to go in? - It was a business I did not like; a person came to me from Mr. Walker's office, as I said I should know the man again, and had seen the person that was in trouble strike this man.

How many cutlasses did you see? - I will not be positive, I saw one, there was a cutlass in a sheath and a blunderbuss, one in a sheath and one out; I would not swear positive to no body; I will swear he is the man that struck the man.

Will you swear that there were two cutlasses in the whole affray? - I did not see two, I saw but one out of the sheath; the prisoner was running very fast when he was taken, but there is another man will prove that more than I can.

Do you know any one fact that you have been talking off by your own knowledge, are you sure it was Russel-street that you saw him lay hold of the rails? - I did, and in Charlotte-street too.

In which of the two streets was he taken - In Russell-street.

THOMAS NEWTON < no role > sworn.

Examined by Mr. Silvester.

I am apprentice to Mr. Cave the Hairdresser, he lives in Bow-street, Bloomsbury; I was there on the 19th, I saw the prisoner run after the cart, but I did not see him do any thing till he came to Hart-street, then Simpson was standing at the rails, then that man up with his stick, and said, oh! damn you says he, and he hit him over the shoulder or across the head, I do not know which.

Court. What did he strike him with? - With a stick; Simpson did not know which way to run, and he run into Captain Hill's house, the Captain is a customer to my master.

Mr. Silvester. Are you certain that that man is the person that struck Simpson < no role > the officer, that blow on the head? - That is the man and no other, but I do not know whether he struck him on the head.

Cross-examined by Mr. Sheppard.

When the prisoner came to strike Simpson, do you remember seeing any thing in Simpson's hand? - A pistol, and Simpson dropped it.

He did not present it? - No Sir.

You are sure of that? - Yes.

Mr. Wilson. Then he did not strike at the pistol? - No, he struck Simpson, and the pistol fell out of his hand; Captain Hill's was the second door from where he was struck; he was not in there half a minute, the maid shoved him out; he run after the man, and the man was taken.

Mr. Sheppard. Did he run fast after him? - Not very fast, he came up with other assistance, and he was brought before the Justice; there was a man taken up on suspicion, and he happened not to be the man; I was before the Justice, and was examined.

Did not you positively swear that was the man? - No Sir, I said I believed he was the man.

Court. The man that did what? - The man that had the blunderbuss.

Mr. Sheppard. Was not you contradicted by several people before the Justice? - Yes.

Was not you as sure of the other man as you are of the prisoner? - No.

How came you then to swear upon your oath that you believed that other was the man, if you did not think so? - I did think so.

Did not you believe it at the time, as much as you believe this to be the man? - No.

Samuel Kelby < no role > called, but did not appear.

JOHN COOK < no role > sworn.

Examined by Mr. Wilson.

Look at the prisoner, do you remember seeing him the 19th of last June? - Yes.

Where? - In Dyot street, about half after one I took him; I live at the top of the street, and I heard a great noise in Russell street, I listened some time, and this prisoner came running down Dyot street with a great stick in his hand, and seemed to be badly frightened, and I took him; I did not see him do any thing, I never saw him before; when I stopped him he begged me to let him go, as he was an officer's servant, he and I had some struggle, then I saw some men come down bloody; I told him I would let him go when the men came up, they said in the presence of the prisoner, that was one of the villains that had been serving them so.

What did he say? - They took him by the collar and dragged him away, I did not hear him say any thing that I can recollect.

Cross-examined by Mr. Garrow.

The man was committed for knocking the man down? - For an assault and taking the goods.

Was you examined? - No more than the Justice talked to me at the coffee-house.

What is his name? - The man's name that acts for him is Fletcher, the Justice's name is Walker.

- WELLS sworn.

I am a surgeon.

Mr. Sheppard. My Lord, I do not know for what purpose this surgeon is called; it does not go at all to the establishing the offence, and it may make certain impressions which may as well be spared.

Court. The wounds are a confirmation of what they say.

Mr. Garrow. We do not dispute but Simpson had a blow from somebody.

Mr. Sylvester. You are a surgeon, Sir? - Yes; Simpson was admitted into the hospital from a cut on the top part of his head, which penetrated his skull, and from which his life was in danger; he had a wound on his forehead likewise, that was of no consequence; his life was certainly in danger from a wound and contusion which appeared to have been done with a sharp instrument.

Mr. Wilson. My Lord, we have now finished our case.

Court to Prisoner. Would you say any thing for yourself, your counsel can only examine witnesses, or suggest any matter of law, they cannot tell your story for you.

Mr. Sheppard. My Lord, as counsel for the prisoner I humbly submit to your Lordship, that in this case they have not shewn such proof on the part of the prosecution, as is necessary to bring the offence imputed to the prisoner within the indictment; for the indictment charges that the prisoner at the bar, with certain other persons, unlawfully and riotously assembled themselves together, in order to rescue certain goods, being unaccustomed goods, &c. In order to support this offence, I shall first submit to your Lordship, that it is absolutely necessary that they should prove the parties to be of that description that they have set forth in the indictment, and they have not produced any thing to shew that they were Excise officers at all; I am well aware the act of parliament will be produced, and it will be said no other proof is necessary, but that act of parliament I submit is previous to the proof itself with which it dispenses.

Court. According to my recollection it is sufficient to shew that they acted as Excise officers.

Mr. Sheppard. My Lord, I submit they should be proved by some other persons to be Excise officers, and that they acted as such.

Court. Yes, that they acted as such.

Mr. Sheppard. My Lord, we have no proof even of that, but from the mouths of the men themselves; and then another allegation necessary to be proved is, that these goods which are stated to be rescued were unaccustomed goods.

Court. They must prove that, there is no doubt of it, the question is, whether they have not?

Mr. Sheppard. I shall submit the same proof is necessary, as there would be in the condemnation of goods; they have not told your Lordship for what cause they took this tea, and whether it was in an entered place without a permit, or in an unentered place; but simply that they got into possession this tea, nor have they produced any thing to shew your Lordship that the tea was under condemnation, if the tea had been subsequently condemned, they ought to shew that condemnation: by their own evidence they have shewn that the cart was actually recovered, and that the parties they took it from had it in their custody afterwards; I am therefore warranted to say that this tea was returned into the Exchequer; why then they ought to put it in the same situation as it would be if we were now trying an information for condemnation, then that information would exhibit certain charges.

Court. Suppose they were, it is sufficient you know that the burthen should be put on you, the person claiming it must shew it; but it always gives me great pleasure if any thing can be said on behalf of a prisoner.

Mr. Sheppard. My Lord, it is usual in informations for condemnations, to state particular reasons why the goods were seized, that they were seized for some cause or other; and if the commodity is not brought within the description in the information, the commodity never is condemned, and I submit it is necessary to prove the same here as in a tryal of that nature, and that this tea was in that specific situation, which by the excise laws would make it condemnable.

Mr. Garrow. Will your Lordship indulge me with an observation or two on the same side, in support of both these objections, and I profess it is my humble opinion (which it is my duty to submit to your Lordship) that the first is by no means the weakest of the two objections; the gentlemen answer this by saying, that though this would not be proof against the prisoner at the bar in an information or at law, yet that the strict rigidity of proof is dispensed with in the Excise laws, and that they are to be proved through some other medium; the act of parliament on which the gentlemen ground their answer to our objections, is the 11th of George < no role > I. it is pretty easily discovered what the spirit and intention of that act of parliament was; it sets out with saying, that whereas it very often happens, that by the strict rules of evidence through defect of proof in actions, and prosecutions against persons under the revenue laws, such persons have escaped conviction, and therefore the legislature dispenses with the strict rule of proof, and then it goes on seemingly rather inattentively, and rather inaccurately to indictments; it goes to indictments against persons for rescuing the seizure of goods: what was the offence at that day? it was only a misdemeanor, a common assault punishable by fine and imprisonment; but then afterwards by the act of the 19th of George II < no role > . at the distance of a whole reign, comes an act of parliament which makes this which was before a misdemeanor, a capital offence, punishable without benefit of clergy. Now I contend that the 11th of George < no role > I. cannot by any possible construction be extended to the proof in this case; how easy would it have been at the passing the second act, if they meant to extend the first act to this, to have provided for it, and said all these things mentioned in the former act shall be applicable to this high offence; I am certain your Lordship will not think it is to be extended in this case; is it the bare saying of these men that they are revenue officers that is to convict the prisoner? non constat, that they were not tortious persons; these men are not appointed by paroll, there is such a thing as deputation, under the hands and seals of the commissioners; why is not that produced? and when a prosecution is carried on by their own officers, is there a difficulty in producing it? if there is not, you will not assist the gentlemen in order to support what is applicable to this subject, a degree of laches in not supporting their cause in this way. But my Lord, I humbly submit that the second objection is unanswerable; they must be unaccustomed goods, they must be liable to the payment of duties not paid or secured; can the Gentlemen upon their oaths, and in their consciences say, that the duties on this tea have never been paid or secured; nothing like it: why then I say it is not unaccustomed goods, now have they affected to prove they are? have they told your Lordship that the package was peculiar to smugglers? therefore I contend it may have been very fairly paid for, and carried to Aperton under a permit. My Lord, there is a case of the last session, which seems to me to be completely in point; the case of Cornelius Rose < no role > This name instance is in set 1404. This set is in the group(s): GarrowsClients . ; it was an indictment against the prisoner for opposing a Custom-house officer: did they there stop as they have done here? did they say we went on board because we possessed such and such powers? No, they produced the survey of the harbour, and they brought oral evidence to prove that the ship was within the limits of the harbour; they pointed out the species of goods on board, to be the species of goods that were seizable; these produced the sentence of condemnation; here it is answered by the solicitor of the Excise, these have been returned into the exchequer: I am entitled to say that the prisoner at the bar had paid the duty on these goods: shall not he defend his property? one would expect in an indictment for killing, that the warrant of the man should be produced; even a constable may be resisted, and resisted lawfully, even to his death, unless he is a known constable, or produces his warrant: perhaps in the next sessions we shall produce to your Lordship a sentence of the Exchequer, that these are not unaccustomed goods; and after this man has been executed under this conviction, how will every man that has been concerned in this cause, feel upon such an occasion, if it should so turn out? If we are to go on in this way, we may have such sort of prosecutions brought on every day against persons that resist revenue officers: I say my Lord, that at present we have not got such a sentence of the Exchequer, and I say too, that by the practice of the Court we could not get it: why what is the practice of Mr. Sylvester in prosecutions against persons for procuring letters of administration? does not he come here constantly, and apply to put the trial off till they have got the probate? just so here, if they had come and told your Lordship these goods are now in a progress of condemnation, there is a suit instituted in the Exchequer, in which we have got judgment; but having done nothing of that kind, nor shewn that these were persons authorized by the law to seize and carry goods to the Excise-office, I am sure your Lordship will not think they have sufficiently proved the case on the part of this prosecution.

Mr. Wilson. My Lord, I beg leave to say a word upon these two objections, especially as one of them is perfectly new to me, and in the case of Rose which is alluded to, the objection was never taken; that was a case where a man had his finger cut off, it was necessary to state it in the indictment, and that the man was a Customhouse officer who had been so assaulted; and it is under this very law of the 19th of George II < no role > , that this prosecution was brought. The statute of the 11th George II < no role > . chap. 30. sect. 32, states what the evidence shall be in all cases where there is either a prosecution against Excise or Custom-house officers, for any thing done under the colour or pretence of their authority, or where there is a prosecution against any man for rescuing goods; the act of Parliament has said that which by the common law would not be evidence, shall in all such cases be evidence; it is a species of evidence undoubtedly, but is inferior to that which might be produced, by shewing you the appointment under the hands and seals of the commissioners; the common law did not suffer it but on account of the inconveniencies that might arise, it was laid down as a rule by the legislature, that in all cases whatever concerning the revenues, whether they were civil suits, or whether they were criminal prosecutions; whether they were against officers, or against persons charged with smuggling; in all these cases a species of evidence shall be sufficient that would be insufficient at common law: the act says, not only Excise officers, but any person acting in aid under Excise officers; so that I conceive there is nothing in this objection stated in this manner, that this act of parliament which dispenses with the proof, was prior to the proof itself; this act which creates, or rather converts this offence into a capital felony, they say it was prior to it; but my Lord that will make no difference, for as to these Excise officers, the law tells you, that the man who acts as such, shall be taken to be such, unless you can prove the contrary; it puts the onus probandi on them; I conceive there is nothing in the world in the objection, though it has some ingenuity in it, as to the stating this act of parliament on which it is founded, as being later in point of date. I now come to the second objection, which I think my learned friend who spoke first, had not much reliance upon; and I am perfectly ready to admit, and there is no principle more clear, than that the evidence given to day, would be quite sufficient to condemn the goods, if it stands uncontradicted: the man who claims, has the onus probandi imposed upon him. I submit therefore to your Lordship, that I have given evidence sufficient to be laid before a jury, and to put the prisoner on his defence; the Gentlemen may contradict this evidence if they can, or if they can induce the Jury to believe either that it is not true, or that there is something in it besides, to shew that the duty has been paid; but at present it stands thus; the officers of Excise go to an outhouse at Aperton, seven miles and a half from London, and under some straw they find twelve bags of tea, which they take and bring away, in order to bring to the Excise office, but in their journey thither, they are thus assaulted, beaten, and the tea rescued and taken from them; in the case which Mr. Garrow mentions of a probate, there is an administration actually granted, and out under the seal of the ordinary; that is a judgment, and though it be improperly obtained, while it stands you are bound by it, of course it is absolutely necessary, that that jurisdiction which granted it, and which alone is competent to examine into the validity of it, should do so before you can go into your prosecution here.

Court. The first objection is, that proper proof has not been adduced, that the persons making this seizure are Custom-house officers; the case arises on the act of parliament, it has been been very properly and pointedly argued by the prisoner's council, which is, that as to what should be sufficient proof refers only to the offence which should be a misdemeanor, and that by a subsequent statute that misdemeanor is converted into a felony: it seems to me, this act of parliament does not touch on the offence, but only regulates the manner in which it shall be proved; as to the second objection, to be sure it behoves the officers of the Excise to shew the goods are unaccustomed, they must prove that, and that will be matter of evidence for the Jury; but people are not called upon to make positive proof of negative propositions; they can prove that this was concealed, and in such sort of packages; and upon all the facts, the circumstances of the rescue, and all, the Jury must form a judgment, whether or no it amounts to proof that they were unaccustomed goods; and besides it is competent for the prisoner to shew that they are not unaccustomed goods: with respect to the postponing a trial, it is no reason when a criminal prosecution is once proceeded on, that the party is to be acquitted because there is a civil suit depending on the same case, it is a reason to apply for its being postponed until the civil matter is decided; but they have made no such application; therefore to be sure that objection cannot take place, and I am of opinion that the prisoner ought to go on with his defence.

GEORGE KILBY < no role > sworn.

Examine d by Mr. Sheppard.

I am a salesman in Broad-street, St. Giles's; on the 19th of June I remember seeing the dispute begin, it began with blows, I saw a parcel of men, I saw a number of men with bludgeons under their coats I was somewhat surprised at seeing them, I saw a little cart, I supposed something would ensue.

Court. Were these the men that attended the cart? - No, they were the rescuers of the goods.

Mr. Sheppard. Among these men with bludgeons, do you recollect seeing the prisoner at the bar? - No Sir, I never saw him. I am upon my oath, I am clear I never saw him about at the time, they appeared to me to be a set of Irishmen, bricklayers labourers, I saw the affray from the beginning to the end, I did not see the prisoner till he came out of the Justice's; I saw the persons of three men that gave the blows, they were ragged looking men, like bricklayers labourers, I saw one man in light coloured clothes come and strike at him that had the blunderbuss, and the man in a sailor's habit ran away with the blunderbuss, I saw the whole affray.

During the time can you say the prisoner was not one of these men? - I as firmly believe it as I exist.

Have you any doubt about it? - No doubt at all.

Cross-examined by Mr. Wilson.

How long had you been acquainted with the prisoner before? - I never saw him till he came out of the Justice's, I never knew him before.

You speak of these rescuers as ragged people? - They were.

Was that your reason for supposing Shelley not to be one of them? - No, Sir, I did not see any man strike that had such a wig, nor such coloured clothes as he had on, and he is dressed now as he was when he came out of the Justice's.

Could you know all the people? - No.

Did you see Simpson? - I saw a tall thin man that had his head cut, I knew him instantly yesterday at Hicks's-hall.

Did you see him at the corner of Hart-street, leaning against a post? - No, I saw him at the top of St. Giles's leaning against a post.

You did not see him there at all? - No.

Of course you saw no body strike him there? - No, it may be the distance of a hundred yards, I cannot ascertain to ten or twenty yards, I do not recollect seeing him at the corner of Hart-street.

That is all you can say with respect to this Shelley, that according to the best of your recollection and belief, the prisoner was not among the people? - To the best of my belief he was not there, I think I should have seen as much of it as any body, the cart stopped opposite an eating-house about eight or ten doors from Holborn, at first they could not stop the horse immediately, that was very near Drury-lane.

Then that was before they came to Hart-street? - Oh, yes, the scuffle was all intirely there, and the goods were driven right up Bow-street, and the rescue was in St. Giles's,

How came you to see this man come from the Justice's? - I heard that some of them were taken and I went out of curiosity, no otherwise I assure you, I saw this was very desperate affair, and I had a mind to see who they were, I said to some of the neighbours, the man they have taken up is a very creditable looking man, and I never saw him in the scuffle.

Mr. Garrow. And it is in consequence of that, that you came here to day? - Yes, I was subpoened.

THOMAS ALEXANDER < no role > sworn.

Examined by Mr. Garrow.

Where do you live? - In Broad-street, St. Giles's, I was standing at my own door and saw several people assemble together, I went to see, and there was this cart and a number of people assembled, and some fighting with sticks, but I do not from any knowledge or recollection, remember seeing the prisoner among them, the cart was rescued and driven away, and went up Bow-street.

Till < no role > the cart had been driven away towards Bow-street, did you see the prisoner there? - I did not, I never saw him till the officer was leading him to Bow-street, it occurred to me that I had not seen him there, I never saw him to my knowledge till the cart was rescued.

Do you think you should have seen him if he had been active in the rescue? - I think I should, I was not in the mob, but I was pretty near them.

You could see more of it than those that were engaged? - I should think so, I went from my own door six houses distant, I went into the middle of the road.

Cross-examined by Mr. Wilson.

Supposing three creditable people had sworn he was there, would you afterwards have sworn that he was not; might not he have been there without your seeing him? - He might, and a great many more people.

JAMES TIBBS < no role > sworn.

Examined by Mr. Sheppard.

I live in Broad-street, St. Giles's, I saw this affray, I was in my shop when it begun, it was immediately facing my door, I was so situated that I could see the whole, I saw the whole of it, but I was in my shop

Look at the prisoner, do you recollect among the people that were scuffling about this cart, that the prisoner was one? - I do not recollect that he was, they appeared to me in general to be bricklayers labourers or working people.

Did you see him at all after the cart was rescued? - I cannot say I saw the man there at all.

Do you think if he had been there in the scuffle and active, you were so situated that you should have seen him? - I really think I should, but it was such an instant; I certainly must have seen him if he was there; but I do not recollect seeing the man there at all, I saw him at the magistrate's he was dressed as he is now.

Were there any people among these fighters that were dressed like the prisoner or had any appearance of being dressed like him? - I did not see any.

Cross-examined by Mr. Wilson.

What are you? - I keep a pork shop.

Do you know the prisoner? - No.

It was in your shop that you saw it? - I went out to look about it as the rest of my neighbours did, but during some part of the scuffle I was in the shop, and some part out; the prisoner could not be in the riot to be one of the very active ones, because I really think I saw every transaction of that sort.

Court. How do you know but part of this passed while you was in the shop; when you was in the shop could you see every thing that passed? - I could certainly.

Did you? - I saw the greatest part, I did not see Hart-street at all, I only saw Broad-street; the cart stopped immediately opposite my window, I saw it stop, I saw the very beginning of it, and the whole that passed in Broad-street, I cannot take upon me to say that I saw every transaction.

Mr. Garrow. Did you see the whole of what passed till the cart was driven away? - I saw the cart stop, and I saw them a fighting, I saw the whole of it till the cart was driven away.

Court. Do you positively say now, that no transaction passed but what you saw? - I do not take upon me to be sure, to say that I saw every part.

Jury. Could you see on both sides the cart? - The cart was very low, and I could see people's heads over the cart.

If any body was knocked down behind the cart could you see? - Yes, unless they were very short people, I saw several people knocked down in the street, I believe I saw the officer knocked down, I remember seeing that man knocked down, but I cannot say by whom.

Do you think it was by the prisoner at the bar that knocked down Simpson? - No, I really do not think it was, I did not notice who knocked him down, I could not take upon me to identify any one particular person, because I was noticing the officers, I do not recollect seeing this man's face there.

Court. Where do you live? - The third door from Bow-Street, on the right hand side as you go from Holborn.

JOHN PRICE < no role > sworn.

Examined by Mr. Garrow.

I live at Milbank. I was at St. Giles's on the 19th of June, I had been at the Three Compasses in High Holborn, and coming back there was a great croud of people, and there was a cart and four or five men about that cart, seizing it or making a great piece of work, some knocking and some striking; the cart was driven up Bow-street, and into Russel-street, there were four or five men, two or three in blue jackets, short men, I stood with a friend of mine, I was there just as the fighting began, I stood there till the cart was driven away.

What part of the street was it that the cart stopped? - Within less than eighty yards of Drury-lane, between the broker's and a pork shop.

remainder of this Trial in the next Part, which will be published in a few days.

THE WHOLE PROCEEDINGS ON THE KING's Commission of the Peace, Oyer and Terminer, and Gaol Delivery for the CITY of LONDON; AND ALSO The Gaol Delivery for the County of Middlesex; HELD AT JUSTICE HALL in the OLD BAILEY, On Wednesday the 7th of JULY, 1784, and the following Days;

Being the SIXTH SESSION in the Mayoralty of The Right Hon. ROBERT PECKHAM < no role > , Esq; LORD MAYOR < no role > OF THE CITY OF LONDON.

TAKEN IN SHORT HAND BY E. HODGSON, PROFESSOR OF SHORT-HAND; And Published by Authority.

NUMBER VI. PART VIII.

LONDON:

Printed for E. HODGSON (the Proprietor) And Sold by J. WALMSLAY, No. 35, Chancery Lane, and S. BLADON, No. 13, Pater-noster Row.

MDCCLXXXIV.

[PRICE SIX-PENCE.]

THE WHOLE PROCEEDINGS UPON THE

KING's Commission of the Peace, Oyer and Terminer, and Gaol Delivery for the CITY of LONDON, &c.

Continuation of the Trial of John Shelley < no role > This name instance is in set 1537. This set is in the group(s): GarrowsClients . .

Look at the prisoner, did you from the time that you first observed the cart, till the time the cart was driven away, see him there? - No, Sir, I am sure I did not see him there, I saw him afterwards, I saw him dragged by a parcel of men, I certainly should have seen him and noticed him if he had been there, and active; I looked at every person with particular attention, because I thought there would have been murder, I am perfectly sure I did not see him, I did not know him before.

Cross-examined by Mr. Wilson.

What are you? - I am a Coal-merchant.

You do not deal in tea? - I buy it for my wife when I want it.

When you first saw them what distance was it? - About ten yards, I first saw the prisoner dragged to the Justice's, the corner of Hart-street.

Did you see Simpson in Broad-street, St. Giles's? - I saw a parcel of men that were knocked down, I believe that Gentleman was there, and there was two more there, I think I could be sure that that Gentleman was knocked down, I am as sure he was there, as I am that the prisoner was not there.

Did you see him at the corner of Hart-street? - I did not.

By what was he knocked down? - By a stick.

Who knocked him down? - If I could tell that I should, I cannot tell, but I think I should know some of the people if I was to see them, there were several blows, there was only one knocked that man down, there were several blows at once made at him and others; I saw several blows made at him.

Did you see the persons who made the blows at him? - Yes, I should know the persons again, I think I should.

But could you swear to every one in that scuffle that made a blow? - I think I could.

How long did it last? - About five minutes, there were five or six that were striking, they were partly all on the side of Bow-street.

Had you ever seen any of these people before? - Never, to my knowledge.

Will you take upon you to swear, that seeing them in that bustle, striking and knocking down the officers, at the distance of ten yards, that from that five minutes observation you could know them again? - I think I should know their faces in the same dress they were then.

You are quite sure of that? - Yes, I am quite sure of that.

Describe the man that knocked Simpson down? - It was a man like a bricklayer's labourer, he was taller than me, he was a man fatter than me, a lustier man than me in every respect.

Where was Simpson when he was knocked down? - He was just by the cart, just down out of the cart.

Did you ever see Simpson in the cart? - No, Sir, I did not, when I first came up he was out of the cart, I never saw him in the cart, there was another person in the cart and they were striking.

Now you swear it was another person and not Simpson that was in the cart upon your oath? - Yes, a man in a blue coat and a red collar was in the cart, I am sure it was not that gentleman.

If he had been struck in the cart he must have been struck in your sight? - There was no striking at all, I saw the horse's collar seized first.

When you first came up Simpson was not in the cart? - No, Sir.

He was standing when you first saw him? - They were all in a hurly burly.

He was upon the ground and not in the cart? - Yes, he was.

Then if there was any striking at Simpson in the cart, it must have been before you saw it? - But there was no striking, in that place.

How can you tell that? - I do not presume to know.

Did you see the cart in motion when you first saw it? - When I first saw it I saw it in motion, I was up even before the man seized the horse by the bridle, I was within fifty yards of it before it was stopped at all; I was within sight of it long before it was stopped, I was within ten yards of it when it was stopped; Simpson was not in the cart when I first saw it, it was a man in a blue coat and a red collar.

Are you or are you not certain? - I am positive that he was not in the cart, that I did not see him in the cart.

If he was struck in the cart it must be before you came up? - Yes.

And there must have been a striking before you came up to make that true? - Yes.

JAMES AGAR < no role > sworn.

Examined by Mr. Sheppard.

On the 19th of June I was at the Broad Way, St. Giles's, four doors from Monmouth street, I remember very well seeing a cart go by, and about three or four along with it, and presently I saw five or six more with sticks following the cart, I saw the cart at the bottom of the street, it might be one hundred and fifty, or one hundred and sixty yards, it stopped as near as I can tell between a pork-shop and a broker's, there was a battle I suppose for a minute or two, and I saw the cart run up to a linen-draper's shop, at the corner going up to Holborn, then I saw somebody turn into Bow-street; at that very time the prisoner came by, and he made a motion this way, and passed by, I was between him and the cart, when he spoke to me the cart was turning up Bow-street, he made a motion, how do you do, and passed me; the cart was going into Bow-street at the time.

Cross-examined by Mr. Wilson.

What business are you? - A publican.

You have known Shelley before? - Yes, for some time, we have known one another a good many years.

Besides being a publican you deal a little in tea sometimes? - No, never in my life.

There never was an information against you for smuggling? - Yes, several times, but there never was none found against me, nor nothing of the kind.

Have they been more frequent or less since your acqaintance with Mr. Shelley? - Less, for I was fined once in the Broad Way, St. Giles's, for a little that a man gave me, that was all that I was ever fined in my life.

Which way was Shelley coming, the same way that the cart had gone? - The cart had gone about two or three minutes before Mr. Shelley came up.

Had he a stick in his hand? - He had indeed as nigh as I can tell; I saw a battle at the bottom before I saw him, he did not stop, he only made a motion, he was walking along a good pace down towards the bottom, I saw the cart turn to the best of my opinion.

Recollect what you are about, upon your oath did the cart turn before Shelley passed? - To the best of my opinion it did.

Mind what you are about; did the cart turn before Shelley passed you? - I tell you before to the best of my opinion, I cannot say any other.

You do not know whether it had or not? - To the best of my opinion it had.

Will you swear it bad? - I only swear to the best of my opinion, I believe it had, but I swear nothing but what I am sure.

The battle was all over in a minute or two. - It was for what I saw of it.

Court. Gentlemen of the Jury, this indictment is founded on an act of parliament, made in the 19th year of the late King, in order to repress the daring conduct and behaviour of the smugglers, who endeavoured, not only to violate the laws, but to resist them with force. (Here the learned Judge summed up the evidence on the part of the prosecution, and then added:) Gentlemen, you will first of all consider how matters stand on the evidence for the prosecution: on the part of the prisoner two objections have been taken, and the first objection was, that they ought to shew that they were Custom-house officers; this is an act of parliament that makes it unnecessary to shew their deputation, it is sufficient that they were reputed to be such, that they acted as such, and were then in the discharge of their duty; the next question is, how far it is proved to your satisfaction that these goods were unaccustomed; it is impossible for the Crown to shew that the duties were not paid; the defendant may prove they were paid; it is for your consideration whether the facts and circumstances do not make out these goods to be unaccustomed; first, they were in a house concealed under straw, the master denying any knowledge of them; they were in oil-case packages, which are known to be the conveyance of smuggled goods, and the question is, whether these circumstances are not sufficient for you to believe that these were unaccustomed goods; or at least it lays the burthen of the proof on the defendants, it is for them to prove the contrary; to be sure, if the prisoner was only, as their Council would have you believe, an accidental spectator, he could not fall within the meaning of this act of parliament; the two first witnesses only prove in general the affray, they themselves were assaulted on all sides, and it was impossible for them to see every body engaged in that assault; they were not attacked themselves, and therefore can say nothing of it; but Simpson, Chatterton, Newton, and two more, swear possitively to his taking an active part in it in two different places, one in Dyot-street, and the other in Hart-street; and Cook too, when he stopped him, tells you he ran away, and when he stopped him he gave a false account of himself; now if a person is stopped and apprehended, and tells a false story, that is an evidence of guilt; falshood is always accompanied with guilt, and truth with innocence; was he an officer's servant? certainly not. The prisoner has called several witnesses. (Here the learned Judge summed up the evidence for the prisoner, and then added:) Gentlemen, here is certainly gross perjury on one side or other, you are to weigh it; but there is one very strong circumstance, the Excise officers cannot be mistaken in the person; if they swear wrong it is not through mistake; they first saw him at Hanger-hill, and then passed him at Kensington Gravel-pits, then they saw him at Broad St. Giles's, and if they swear falsly, they are most wickedly and corruptly perjured; I should have been glad to have heard why the person passed by these people again from Apperton, and how this mob a rose: who gave intelligence? was it the man that passed the cart the first time, and repassed, and came to London, or was it another man? the two first witnesses that were called may swear very innocently, and yet it may be very true that the prisoner was there; there was a great noise and bustle, and it is a great deal for you to take into your consideration, how they are warranted to say that such or such a person whom they did not know, and whom they had no reason to look for, or at, did not give a blow, or whether he might not have given a blow without their knowing it; and as to the transaction at Hart-street, there are people no way connected with the Excise officer that confirm him in every respect.

The Jury retired for some time, and returned with a verdict,

GUILTY , Death .

Jury. My Lord, it is the unanimous and earnest wish of the Jury, that the prisoner may be humbly recommended as an object of his Majesty's mercy.

Tried by the second Middlesex Jury before Mr. Justice HEATH.