THE Short-Hand Writer having omitted to take the several Questions put to the Witnesses, with their Answers in the Words they were deliver'd, that Defect cannot now be supply'd.

But we having perus'd the following Tryals do certify, that the Substance of the Evidence given by the several Witnesses is faithfully taken. And that upon the whole, this Account of the Proceedings under the Commissions is in Substance true.

M. FOSTER,

E. CLIVE,

THO. BIRCH.

THE WHOLE PROCEEDINGS ON THE Special Commissions of OYER and TERMINER and Goal Delivery, FOR THE County of SUSSEX,

HELD AT CHICHESTER, the 16th, 17th, and 18th Days of January last;

BEFORE THE Hon. Mr. Justice FOSTER, Mr Baron CLIVE < no role > , and Mr Justice BIRCH;

CONTAINING The Trials of William Jackson < no role > , William Carter < no role > , Benjamin Tapner < no role > , John Cobby < no role > , John Hammond < no role > , Richard Mills < no role > , sen. and Richard Mills < no role > , jun. his Son, for the Murder of William Gally < no role > and Daniel Chater < no role > .

To which is added, An APPENDIX, Containing an authentick Account of the Behaviour of the several Malefactors, before and at the Place of Execution.

LONDON:

Printed for C. DAVIS, in Holborn; A. MILLAR, in the Strand; and M. COOPER, in Pater-noster-Row. 1749.

[Price One Shilling and Sixpence.]

THE PROCEEDINGS ON THE

Special Commissions of Oyer and Terminer, and Gaol Delivery, for the County of Sussex, held at Chichester, &c.

ON Monday the 16th of January, 1748. The Commission was opened, and the Commissioners Names called over, of whom were present,

His Grace the Duke of RICHMOND,

The Honourable

Mr Justice Foster,

Mr Baron Clive proceedingsjury ,

Mr Justice Birch.

Sir Richard Mill proceedingsjury ,

Sir Cecil Bishop proceedingsjury ,

Sir Hutchins Williams proceedingsjury ,

Barts.

John Butler proceedingsjury ,

Robert Bull proceedingsjury ,

Esqrs.

Sir John Miller proceedingsjury , Bart. Foreman,

Sir Matthew Fetherston-haugh proceedingsjury , Bart.

Sir Thomas Ridge proceedingsjury , Knt.

John Page proceedingsjury ,

George Bramstone proceedingsjury ,

William Battine proceedingsjury ,

John Winker proceedingsjury ,

Edward Trednost proceedingsjury ,

William Winker proceedingsjury ,

Samuel Blunt proceedingsjury ,

William Pool proceedingsjury ,

Perkham Williams proceedingsjury ,

Thomas Bettesworth Bilson proceedingsjury ,

Thomas Phipps proceedingsjury ,

Esqrs.

William Mitford proceedingsjury ,

James Goble proceedingsjury ,

John Cheal proceedingsjury ,

William Leeves proceedingsjury ,

Richard Nash proceedingsjury ,

Thomas Fowler proceedingsjury ,

William Perkham proceedingsjury ,

Waller Bartlett proceedingsjury ,

John Hollist proceedingsjury ,

Esqrs.

Francis Peachey proceedingsjury ,

John Laker proceedingsjury ,

William Peachey proceedingsjury ,

John Pay proceedingsjury ,

Gents.

Being Sworn of the Grand Jury, Mr Justice Foster, spoke to them as follows,

Gentlemen of the Grand Inquest,

It must certainly give great Satisfaction to every Man, who has a due Concern for the Peace of the Kingdom, and the Honour of His Majesty's Government, to see so numerous an Appearance of Persons of great Rank and Fortune attending the present Service. For without a vigorous, steady, and impartial Administration of Justice, the Ends of Government will be totally defeated.

And what are the Ends of Government? They undoubtedly are, the Welfare of the whole Community, and the Happiness of every single Man in it: as far as the Happiness of Individuals is consistent with the welfare of the whole.

These are the great Ends of Government. And it is very certain, they cannot be obtain'd without a due Execution of the Law upon Offenders of all kinds.

And it is no inconsiderable Instance of the Wisdom of our Law, that the Opportunities of bringing Offenders to Justice are as frequent, as the Nature of the Case, in the ordinary course of Things, seems to require. Justice is, as it were, brought Home to every Man's Door twice in the Year, at the stated Returns of the Circuits.

By this measure, two very wise and salutary Purposes are at once served. The Prosecution is ordinarily commenc'd and finish'd while Things are recent, while Facts and Circumstances are fresh in Memory, and while Witnesses may be presum'd to remain under a proper Impression. And, on the other hand, the Person who is the Object of the Prosecution, hath an early Opportunity given to him of clearing up his Innocence, if it shall happen to be his Case.

It were to be wish'd, that these stated Seasons had been at all Times found sufficient to satisfy the demands of publick Justice. But the History of former Times informs us that they have not; and our own Experience convinces us, that they are not at present sufficient for that purpose.

For what has been the case of this, and of some of the neighbouring Counties for many, too many, Years past? Dangerous Confederacies have been form'd, for very unwarrantable, very wicked Purposes; for robbing the Publick of that Revenue which is absolutely necessary to it's Support; and for defeating the fair Trader in his just Expectations of Profit. These, to mention no more, are the necessary unavoidable consequences of the Practice, which now goes under the general Name of Smuggling.

And however Persons may palliate the matter to themselves or others, I wish every Man who hath been directly or indirectly concern'd in this Practice, would lay his Hand on his Heart and put this Question to himself, Wherein lies the real difference, (I speak now of a difference in Foro Conscientice ) wherein lies the real difference, between this sort of Robbery, and the Crime which usually goes under that Demomination?

But this is not all, This wicked Practice hath been supported by an armed Force. By numbers of dissolute People assembled together, and acting in open Day-light; in Defiance of all the Law, and all the Justice of their Country; and to the Terror of His Majesty's peaceable Subjects.

And the Mischief has not ended here. In some late Instances, deliberate Murders, attended with Circumstances of great Aggravation, have been committed in consequence, as 'tis to be fear'd, of these Combinations.

These Things loudly call for the Animadversion of the Publick. They have been humbly represented to His Majesty. And His Majesty out of His Royal Concern for the Welfare of his People, the Ruling Principle which guides an animates his whole Conduct, hath been pleas'd to intrust us, with his Special Commissions of Oyer and Terminer and Gaol Delivery for this County.

Our Commissions do not extend to all the Crimes which are cognizable under the general Commissions which are executed in the Circuit. They are consin'd to the Offences of Murder, Manslaughter, and other Felonies, and to the Accessaries to those Offences: But as far as they do extend, they are just of the same nature as the Circuit Commissions. The same Law, the same method of Tryal, and the same Rules of Evidence, are to take Place in these as do in those.

Gentlemen, I shall have no occasion to enter into the several Distinctions between the Offences of Murder, and what we commonly call Manslaughter; because those Distinctions are grounded on Circumstances, which possibly may have no Place in your present Inquiry.

It is sufficent to say, that wherever it appears that the Fact was committed with any degree of Deliberation, and especially where it is attended with Circumstances of Cruelty, the usual distinctions between Murder and Manslaughter can never take Place. The Fact is, in the Eye of the Law, willful Murder of Malice prepense. And it involves every Person concern'd, as well those who are barely present, aiding and abetting, as those who actually commit the Fact, in the same degree of Guilt.

For where Numbers of People engage in any felonious Design, either for Murder, Robbery, or any other Felony, every Person so engag'd, and present, aiding and abetting the Fact, is consider'd as a Principal in the Felony. And the Reason the Law goes upon is this, that the Presence of every one of the Accomplices gives Countenance, Encouragement, and Security to all the rest. And conseqnently the Fact is consider'd in the Eye of the Law, and of found Reason too, as the Act of the whole Party, tho' it be perpetrated perhaps by the Hands of one. He is consider'd as the Instrument by which the others act.

And when we say, that the Presence of a Person at the Commission of a Felony, will involve him in the Guilt of the rest, we must not confine ourselves to a strict, actual Presence, such a Presence as would make him an Eye or an Ear Witness of what passes.

For an Accomplice may be involv'd in the Guilt of the rest, tho' he may happen to be so far distant from the Scene of Action, as to be utterly out of sight or hearing of what passes.

For Instance, If several Persons agree to commit a Murder or other Felony, and each Man takes his Part: Some are appointed to commit the Fact, others to watch at a Distance, to prevent a Surprize, or to favour the Escape of those who are more immediately engaged; the Law says, that if the Felony be committed, it is the Act of all of them. For each Man operated in his Station towards the Commission of it, at one and the same Instant.

And so much doth the Law abhor Combinations of this Kind, especially where innocent Blood is shed, that a Man may in Judgment of Law be involv'd in the Guilt of Murder, when possibly his Heart abhorred the Thoughts of it.

For if Numbers of People assemble in Prosecution of any unlawful Design, with a Resolution to stand by each other against all Opposers, and a Murder is committed by one of the Party in Prosecution of that Design, every Man so engaged at the Time of the Murder, is in the Eye of the Law equally guilty with him that gave the Stroke.

Many Cases might be put which come under this Rule. I will confine myself to a few which the present Solemnity naturally suggests.

For Instance, Numbers of People assemble for the Purpose of running uncustomed Goods, or for any of the Purposes which now go under the general Term of Smuggling, with a Resolution to resist all Opposers (and the riding with Fire-Arms and other offensive Weapons is certainly an Evidence of that Resolution) Numbers of People, I say, assemble in this Manner, and for this Purpose. They are met by the Officers of the Revenue: One of the Party, in Prosecution of this unlawful Design, fires on the King's Officer, and kills him or any of his Assistants: The whole Party is, in the Eye of the Law, guilty of Murder, though their original Intention went no farther than Smuggling. For that Intention being unlawful, the killing in Prosecution of that Intent, is Murder. And every Man engaged in it, partakes of the Guilt. The Act of one, in Prosecution of their common Engagement, is considered as the Act of all.

I will go one Step further, the Party assembled in the Manner and for the Purposes I have mentioned, is met by the King's Officers, and an Affray happens between them. During the Affray one of the Party fires at the King's Officers, but misses his Aim and kills one of his own Party, perhaps his nearest Relation or Bosom-Friend (if People of that Character are capable of true Friendship) this is Murder in him, and in the whole Party too. For if a Man upon Malice against another strikes at him, and by Accident kills a third Person, the Law, as it were, transfers the Circumstance of Malice from him that was aimed at, to him that received the Blow and died by it. And consequently, in the Case I have just put, the Person who discharged the Gun being guilty of Murder, all his Accomplices are involved in his Guilt; because the Gun was discharged in Prosecution of their common Engagement, and it is therefore considered as the Act of the whole Party.

What I have hitherto said regards those who are present in the Sense I have mentioned, and abetting the Fact at the Time of the Commission of it. But there are others who may be involved in the same Guilt, I mean the Accessaries before the Fact.

These are all People who by Advice, Persuasion, or any other Means, procure the Fact to be done, but cannot be said, in any Sense, to be present at the actual Perpetration of it.

These Persons are involved in the Guilt, and liable in the Case of wilful Murder, to the same Punishment as the principal Offenders are.

I am very sensible, Gentlemen, that I have been something longer than I needed to have been, if I had spoken barely for your Information. But in this Place, and upon this Occasion, I thought it not improper to enlarge on some Points. That People may see, and consider in Time, the infinite Hazard they run by engaging in the wicked Combinations I have mentioned; and how suddenly and fatally they may, being so engaged, be involved in the Guilt of Murder itself, while perhaps their principal View might fall very far short of that Crime.

After which the Bills being delivered to the Grand Jury the Court adjourned.