901. JOHN HENRY AIKLES proceedingsdefend This name instance is in set 44221545. was indicted for feloniously returning from transportation, and being found at large on the 26th day of May last, without any lawful cause, before the expiration of the term of seven years, for which he was sentenced to be transported, against the statute .

The record of the prisoner's conviction read by Mr. Shelton, Clerk of the Arraigns, and examined by Mr. Garrow, prisoner's counsel.

JOHN OWEN < no role > sworn.

Examined by Mr. Knowles, counsel for the Prosecution.

I am servant to Mr. Akerman, keeper of Newgate.

Do you remember seeing the prisoner at the bar? - Yes, in January sessions, 1784.

Do you know what he was tried for? - For stealing a bill, value one hundred pounds, the property of Samuel Edwards < no role > .

What was the verdict? - It was left special, till the July Sessions following.

Did you see him again in July Sessions? - I brought him up from Newgate to receive sentence.

Do you know whether he did receive sentence? - He received sentence to be transported to America for seven years.

In your hearing? - I was present, and brought him up.

Mr. Garrow. Owen, when was he discharged out of your custody? - I believe the beginning of this year.

In consequence of his Majesty's pardon, upon condition that he would transport himself within fourteen days? - Yes.

In consequence of Mr. Recorder's warrant to the gaoler of Newgate? - Yes.

CHARLES JEALOUS < no role > sworn.

I apprehended the prisoner the 26th of last May, at lslington, he was at large: Mr. Clarke and me were going by the Angel, at lslington, and he saw us, and ran away among the sheep pens, and we took him, he was in the front room next the road in the widow, he was stopped and taken.

(The warrant read on condition of transporting himself in fourteen days.)

Mr. Garrow to Owen. Can you fix the time when the man was discharged. - No, I cannot fix it to a certain day, it was in the beginning of this year.

Mr. Garrow, My Lord, if you look to the King's pardon, it is fourteen days from the day in which he shall be discharged out of custody; there were a number of civil detainers against him, and he had of course taken no pains to supersede them till he got the King's pardon: I mean to submit to the Court, that it is incumbent on the prosecutor to shew the precise day of his discharge out of custody, I contend that that case may well be presumed in favour of the prisoner to have happened, which in point of fact has happened in the present instance, and that the onus probandi is on them: supposing a man to be detained on civil actions till the whole fourteen days are elapsed, the purpose of the King's gracious pardon would be defeated, and the keeper would say you have broke the King's pardon, and according to the argument of to day (strange as that argument is) you have committed a capital felony by remaining here.

JOHN NEWMAN < no role > sworn.

I am clerk of the papers, this is my writing, I copied it from the Sheriff's warrant.

Mr. Garrow. Have you the warrants there? - No, I have them at home, here is an entry of the day on which he was discharged, I know nothing of it of my own knowledge; Pitt discharges.

What is that book? - This is a daily book that I keep of those that go in, and come out, this is a book for the entry of debtors, he discharged his debt the 25th of February, and it appears here, he was discharged in the month of March.

Is that book kept solely for entering the discharges? - Discharges and commitments of debtors, as well as criminals of the master's side, and he appears to be of the master's side.

Mr. Garrow. You know nothing personally of your own knowledge concerning the discharge of this man, but what you heard from the turnkey? - No.

So that if the turnkey neglected his duty, or imposed upon you there might be a false date on your book; for if there is no day marked, you conclude it is that day, but if it is the day after you copy that which is so marked on the warrant? - Yes.

Who writes that on the warrant? - The turnkey.

What do you do with the warrants? - I file them, and keep them regularly.

Court (looking at the warrant.) Here is nothing written on this warrant, how came he to be detained till the 9th of March.

Mr. Garrow. I know Mr. Akerman excused him his fees as he very often does; for the man had not a farthing in the world.

Mr. Garrow. My Lords, I must beg leave to trouble your Lordships, with an objection to this proof, for as to all questions that have been addressed to Mr. Newman, he has freely confessed he does not know; this is not the original entry, it is the first book on the subject, but not the original minutes; they have evidence perfectly good to produce, but Mr. Newman, knows nothing personally on the subject; says he, it is the duty of the turnkey to apprize me of it as soon as he can; but if a riot should happen in the gaol, if the turnkey should fall asleep, or anything else should prevent him, possibly (which is enough for my argument) he may not apprize him of it at the time, and to cover such neglect may impose upon him a wrong day: my Lords, I may ask what hinders them from producing that turnkey, what hinders them from producing the memorandum of the turnkey, that would be the best evidence, but this is the second best, this is but a copy of that memorandum. Now, suppose, my Lords, the case of a brewer, who wants to prove a delivery of a certain number of casks, and his servant who delivered them is dead: we know that there are authorities which say, that the entry in the hand writing of that servant will be evidence of the delivery: but was it ever contended that the ledger of the brewer copied from the day book will be evidence? no such thing. I submit this is not the best evidence, and therefore ought not to be received.

Mr. Justice Gould. I own, for my part, I am inclined to think this is evidence to be received: it is not like a book of a private tradesmen, it is not like a ledger, but it is a long established practice, people put a confidence in public officers, and their evidence is to be received with due caution. I think prima facie there is evidence that this man was set at liberty on the 9th of March, then he is not taken till the 26th of May, therefore that is more than fourteen days after the discharge.

Mr. Paron Botham. I am inclined very much to concur with my learned brother Gould, for it does not seem that Mr. Newman has any interest in this book whatever, he is the officer who records this transaction; undoubtedly any party may falsify the book if they can, this being such a kind of book in which he has no interest whatever, but faithfully recording the transactions, unless it is impeached some way or other it ought to be received.

Mr. Garrow. The evidence on the part of the prosecution being closed, I must now, my Lords, take the liberty of troubling the Court with some objections in point of law on this case. The offence charged against the prisoner at the bar, is that he having been convicted of a felony, for which he was liable to be transported for seven years, did receive such sentence, and was afterwards found at large in this kingdom, before the expiration of that term, without any lawful cause. Your Lordship have it in evidence, that he was discharged in consequence of his Majesty's pardon, granted on condition of transporting himself, and by virtue of a warrant under the hand and seal of the Recorder of Londons. By the common law of this country, every man is entitled to the full and uninterrupted enjoyment of his personal freedom, and he can only forfeit his liberty by the commission of some crime, therefore one is obliged to resort to the statute law, to see what that crime is; and I cannot find any one statute that makes this man guilty: the indictment has not charged that the sentence of the Court, which was originally passed upon him, had been altered by his Majesty's pardon, and I understand that the reason was, that it is to be argued that the condition of that pardon not being complied with, it is to be taken like the condition of a grant, as if no pardon had been granted at all: now, my Lords, to a certain extent, I am perfectly ready to admit that argument, if it be only contended that Mr. Aikles has forfeited his claim to his Majesty's mercy, and therefore ought to be remanded to his former sentence: But if it is to be contended, that he has committed a felony, then I am to find some statute law in this country, in which that offence is described. By the act of the 16th of George II < no role > . chap. 15, it is made a felony for any person ordered to be transported, or who has agreed to transport himself to America, to be found at large in this kingdom, without any lawful cause: Mr. Aikles has not agreed to transport himself to America, and therefore he is not indicted on that act of parliament; but I submit that by a subsequent act of parliament, all that is done away by the act of parliament of the 19th of Geo. III. c. 74. The words of the 16th of Geo. II < no role > . are these,

"that if any felon ordered, or hereafter to

"be ordered to be transported, or who had

"agreed to transport himself to any of his

"Majesty's Colonies and Plantations in

"America, be found at large in this kingdom,

"without any lawful cause, he shall

"suffer death." Now I say, my Lords, that Mr. Aikles is not in the list of cases described in that act of parliament; he has not agreed to transport himself to any of his Majesty's colonies and plantations in America, therefore he has not been indicted under that clause, as he could have been, and the pardon set out: Your Lordships see the condition of this pardon, is generally to depart the realm, not to transport himself specifically to any of his Majesty's colonies and plantations in America; then comes the act of the 8th of Geo. III < no role > . which I mention, only because it is one of the acts that is found in the code of transportation laws; it relates only to persons recommended by the Judge of assize to his Majesty's mercy, and who by that mercy are ordered to be transported to America. Your Lordships know, that you no longer have the power to transport to America, or at least you no longer exercise it: Then I say that the legislature, by the act of the 19th of the present King, c. 74, has made an entire new code of transportation laws, in which the case of Mr. Aikles is entirely counted: and when I say that, my Lords, it becomes me to state what I take to be his case; I take it he is not now an offender, under sentence of transportation to America; but in a case analogous to those mentioned in the statute of the late King, who had agreed to transport themselves; with this difference, that extended to America, his case is an agreement to transport himself generally, and not to those colonies and plantations: The act says, persons convicted of crimes, punishable by transportation to America, may be ordered to be transported to any parts beyond the seas; then comes the other clause,

"or if his

"Majesty, his heirs, or successors, shall

"extend his royal mercy to any felon,

"upon condition of transportation beyond

"the seas," then all the laws relative to transportation were to take effect: but your Lordships see, that those who penned this act of parliament, have confined it to such as are attainted, or convicted of crimes without benefit of clergy, whereas Mr. Aikles's case was not an offence for which he was excluded the benefit of clergy. My Lords, I come next to enquire whether he stands on his old sentence, and whether the King's pardon having been granted to him upon a condition, and that condition not being complied with, he has committed a felony? I contend he has not, as he is at large within the realm, with a lawful excuse; that lawful excuse is Mr. Recorder's warrant, and that warrant granted on his Majesty's pardon if I shew your Lordships that at any one moment he was at liberty, with lawful cause, I should wish to know when that ceased? In the present case, your Lordships cannot extend the law beyond the letter of it, under the several statutes under which your authority arises; then I say there is no statute law which says, that if the condition of his Majesty's pardon is broken, that the person breaking it shall be guilty of a felony; and I am entitled to presume that the legislature in the act of the 19th of the present King, meant purposely to exclude such cases as the present, and thought it enough to tell a man in the situation of Mr. Aikles, you have trifled with the King's pardon, and shall therefore return to that situation in which that pardon found you; but, that they thought it a great deal too much to say to him you shall be therefore guilty of a felony I ask again, where is the statute law, that makes the not complying with that pardon a felony? and I ask, why was not the condition of the King's pardon stated in the indictment? My Lords, there is a case which appears to me to be previously in point, the case of Maxamillian Miller, referred to the consideration of all the Judges; it was in the year 1770, from this place; he was indicted for being found at large, after having accepted the King's pardon, on condition of being transported; but when he came to be tried, a doubt occurred to the Judges who presided at that time on his case, and the Judges have never, I believe, communicated any judicial determination of that case, but they did that which was tantamount to it, for they remitted him to his former sentence: I know that in that day, very absurdly as it seems, the condition of the King's pardon was, that he should give security, to the satisfaction of the Recorder, to depart the country within a limited time: I know that the form of the King's pardon has been altered by the present learned Recorder; the condition now is not, that he should give security to depart, but that he should depart the kingdom, and not return or he found at large, without sufficient cause: but it goes on to say, that the King, who by law had a right to say he shall be released from all his offences; that competent authority has said, that upon giving sufficient security he shall be discharged: now it is in evidence, that he gave such security, that he was released out of custody, then he was once at large, with a legal excuses In Miller's case, the condition of giving security to the Recorder, preceded his departure from the kingdom, and the court held that he could not be convicted of a felony, he having the King's pardon to discharge him, on doing a certain thing. My Lords, it does not occur to me, that I can state the argument more clearly than I have done and to sum up my objection, it is this, that if the offence is that he has not performed the condition of the King's pardon, then there is no statute law existing which calls it at an offence, but there is a late act of parliament, in which that offence is not revived; and I contend that, though it may vacate a pardon, yet, as of course it cannot be an offence at common law, and there is no statute describing the offence, your Lordships, upon the authority of Maximillian Miller < no role > 's case, will direct the Jury to acquit the prisoner.

Mr. Knowles. I have to lament my Lords, that in a case of so much consequence to publick justice, the support of it should be left to my feeble abilities, in the absence of a gentleman much more versed in the cr iminal law of this country than myself, from him I have received this brief, without any idea of an answer being necessary to such an objection as the present, however, I will endeavour to suggest to the Court what arises to me, caught up in a moment upon what has dropped from my learned friend: I take it, my Lords, that there are two clauses in the act of parliament which attack strongly on this prisoner, the first is, that if any person shall he at large within the time for which he is ordered to be transported, that he by that act becomes a capital offender; there is another clause of it, which says, that likewise the person who is sentenced to be transported, and shall agree to transport himself, and return into the kingdom within a limited time, shall be a capital offender: I take the offence certainly to be within the first of these clauses, because he has had sentence of transportation passed upon him by a Court competent to pronounce that sentence; this defence is set up, his Majesty has been pleased to grant him a pardon, which pardon is said to give him a lawful cause for being found at large: if this pardon was, as former pardons were, on condition (only) that this person should give security to the Recorder of London, to depart the nation; I hold his having given that security is all that can be required of him, and thought the security is forfeited of course, yet, he is at large with lawful cause, and there would be no possibility of his being indicted for a capital offence; but the pardon now granted to him, is upon condition

"that he the prisoner depart this kingdom within fourteen days: the words are

"And our will and pleasure further is (which certainly is a distinct, opposition from what has gone before) that upon giving due security to the Recorder so to do, he then should be discharge out of custody - If he be found at large within the fourteen days after his discharge, he then is at large with lawful cause. But though he gives this security, that does not take away the precedent condition of that pardon, for it is perfectly separate, and distinct from it: it is contended this act of parliament is repeated by the 19th of Geo. III < no role > . the reason of passing that act was that in consequence of the unhappy rebellion which took place in our colonies in America; they could not send the felons there; then another act of parliament was necessary as to the transportation of these offenders, and it says, not that the, shall be hereafter transported to any other place, but that it may be lawful to his Majesty in such cases, to transport them elsewhere if his Majesty so pleases; I hold that the two acts run together, and the one only extends the powers of the other, but does not repeal it in any shape whatever now when a pardon is granted on certain conditions, and they are broken, that pardon is as if it never had had existence; the prisoner has a pardon granted him, and shall either accept it to comply with the conditions of it, or refuse it, and remain under his former sentence; he knows the conditions, and his ability or inability to perform them, and if after having accepted it, he finds himself unable to perform them, he might have surrendered to any Magistrate, he might have been in legal custody. If this pardon never did take place, being upon condition which had not been performed, it certainly can be of no avail to the prisoner; as to Miller's case, I never saw it, I think it must turn upon the different made of wording the pardon from that now adopted.

Mr. Justice Gould. I think it is necessary to make a final decision in this point; we perfectly well know that by the common law, the King may grant his pardon upon condition; Lord Coke says in the first institute 2746, if a villain is manumitted, every condition on that manmmission is utterly void; but, says Lord Coke, the King may grant his pardon on condition: the sense and meaning of that must necessarily be, that if the King's condition of the pardon is broken, it makes it a nullity: as for the argument upon these acts of parliament it was extremely well enforced by Mr. Garrow, that it is not in the power of the Judges to make a felony if the law has not made one: therefore now according to the old law, where felonies were capital, where the benefit of clergy did not interpose to save them; if the party had undertaken to depart the realm with all possible speed, if he did not use all due diligence to depart, I know perfectly well, as in Stamper's case, he was remitted to his former sentence, he was to be executed, supposing the sentence was capital, according to that former sentence, and the reason they gave for it was, that there could not be two attainders for one crime: so stood the ancient law: then when this system of transportation took effect, the act of parliament made the returning before the term a felony, and then the subsequent act of parliament that Mr. Garrow has mentioned, putting it more at large, and to facilitate the conviction, saying, that if he shall be found at large within the realm, before that term of transportation expired, it shall be a new felony; that put it upon a different plan, from the common law, therefore, suppose the party came into a new description of the act of parliament, you are under the necessity of indicting him for a new made felonony: this man is convicted of a clergyable felony, and receives sentence of transportation, his Majesty is graciously pleased to interpose on his part, and to pardon the crime; these are the terms of the King's pardon, upon condition that he should depart the realm within fourteen days after he should be discharged; but it is proved, and does appear to us in evidence, that he was discharged according to the true spirit and meaning of his Majesty's gracious act, and that he did not comply with that condition, but was taken at large after the expiration of fourteen days: it is very true, that this act of the nineteenth of his present Majesty seems to have perplexed the matter a little, because it takes up felonies not excluded from the benefit of clergy where the sentence is transportation pronounced by the court; and then it says nothing at all upon the King's pardon on condition of transporting themselves, but only makes provision with respect to those capitally convicted; but this act has not repealed the former statutes, so far from it, that it provides in the clause that I would have been glad to have referred to, that all the clauses in the fourth of George < no role > the Second, and in the sixteenth of George < no role > the Second particularly should be applied, and put in force with respect to all persons that were sentenced to be transported under this act of parliament, or something of that kind: now, what was the sense and meaning of that act of parliament? By that act of parliament courts of justice were restrained, and obliged to order their transports to America; nay, and it has been determined to my knowledge by all the Judges upon a question arising on the fishing act, referred by Mr. Justice Bathurst, that when the act says a man shall be transported for seven years without saying where, it should be to America; that was the opinion of all the Judges, I remember that case well. In the sixteenth of George < no role > the Second this man's case is; he was sentenced to be transported to America, and, as Mr. Garrow states faithfully, no doubt, that act of parliament speaks of the condition that he should transport himself to America: the King does not model his pardon in that way, but he says he should depart the realm, but the party does not do this; the consequence is, that and giving complied with the terms of that pardon, as it at present (I do not give my upon it) that he was then that statute of the 16th of Geo I then, the instant the fourteenth day expired, was at large without any lawful authority: with respect to the objection, that this is not stated in the indictment, I shall not give any final opinion upon that neither, but the indictment is perfectly regular, and in due form, and it states it, and it is incumbent on the prisoner to shew on the one hand the lawful cause why he was at large; he has entirely broke his Majesty's pardon, and the pardon is at an end. These are my present sentiments; if there is any doubt with my brother Hotham, or the Recorder, I will reserve the case for the opinion of the twelve Judges.

Mr. Baron Hotham < no role > . In this case the argument, as Mr. Garrow put it, was unquestionably strong, and the prisoner cannot fall within that part of the clause of the sixteenth of the late King, because he has not agreed to transport himself to America, and he cannot fall within the act of the nineteenth of the present King, because that respects pardon granted to people who had been capitally convicted; but the doubtful part of the case is, whether the pardon is not absolutely and entirely done away, and the case now to be considered as if no pardon had been granted; if it be, then, see how it stands on these two acts of parliament: if the King's pardon is actually done away, may it not be extremely questionable, whether this man having been sentenced to be transported beyond the the seas, by the operation of the act of the present King, is not now subject to the pains and penalties of that act: I think it is so doubtful, that without giving an opinion, I think fit to join with my brother Gould, in reserving it for the consideration of the Judges.

The 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 14th of SEPTEMBER, 1785, and the following Days; Being the SEVENTH SESSION in the Mayoralty of The Right Hon. RICHARD CLARK < no role > , 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 VII. PART XI.

LONDON:

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

MDCCLXXXV.

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 Henry Aikles < no role > This name instance is in set 4422. This set is in the group(s): GarrowsClients . .

Mr. Recorder. I must confess, notwithstanding the diffidence with which I wish to express myself in the presence of the two learned Judges on such a subject, that it does appear to me, that this case requires a solemn determination, more from importtance than the difficulty of it; it seems very clear it does not come within either the clause of the 16th of Geo. II < no role > . which respects persons who have agreed to transport themselves; nor within that clause of the 19th of the present King, which relates to pardons granted by the King: Mr. Aikles has not agreed to transport himself to America, and the clause not being repeated, I think we cannot extend it: it does not come, I think, within that clause; and it does not come within the clause of the 19th of the present King, because it is not a pardon for a capital offence, and capital offences are spoken of by that statute: it seems to me at present that the indictment is perfectly supported under the clause of the 16th of Geo. II. which make it a capital felony to be found at large, within the term for which a person has been sentenced to be transported to America. The prisoner was so sentenced, that sentence has been proved, and that the prisoner was at large, after the time of that sentence, and before the expiration of the term; so far therefore upon that evidence there is the simple case made out under the statute, but it appears also that he was at large under a warrant from the Recorder, founded upon a conditional pardon granted by his Majesty, and it is contended that having been once at large, by lawful cause, he cannot be guilty of felony in being at large, under a sentence of transportation, and that if he has broken the condition of his Majesty's pardon, by means of which he became at large, the utmost consequence must be that it shall not be in force. From the reasons which Mr. Justice Gould has laid down, I am perfectly satisfied, and I always did think the pardon being broke, becomes totally void: it is not so only from the common law, but it is laid down in more modern books, and such care is taken that pardons should not be abused, that it has been held that upon an allegation that the King was deceived in the circumstances on which he granted that pardon, the pardon should be void: and it has been held necessary, that they should recite the crime for which the pardon was granted: upon every authority and principle it seems to be established, that where the condition of the King's pardon is broken, it becomes a nullity. In the case of Patrick Madan < no role > This name instance is in set 2639. , which happened in all out remembrance, the Court acted upon that principle, though there was no adjudication of it; he had been capitally convicted, and was pardoned on condition of transportation; he was afterwards found at large; he was not indicted for a new felony, in being so found at large, but he was brought up, and the court being satisfied from his own admission, that he was the same person, he was called upon to assign a lawful excuse for being so at large, and the Court remanded him to prison under his former sentence, on this principle, that the condition of the King's pardon being broken, the pardon was gone, and the party remained precisely in the same situation that he was the day before the pardon was granted. Now, what was Mr. Aikles's situation before his Majesty's pardon issued? We find him then in the situation of a felon under sentence of transportation; the pardon being gone he remained, and remains still under that sentence; he therefore was in a situation in which, if he was found at large, he committed a felony; he had no lawful cause under the King's warrant for being at large beyond the term of fourteen days, therefore on the 26th of May he remained in the situation of a man under sentence of transportation, and without any lawful cause, for the lawful cause does not extend beyond the fourteen days, and therefore on the 26th of May he was at large in the kingdom, without any lawful cause; the pardon therefore being void, it seems to me that the indictment itself is good, and is fully supported by evidence: and the inclination of my opinion at present goes one step further, that if the indictment had stated the pardon, and that he had broken the condition of the King's pardon, and that therefore he would have been guilty of a felony, it would have been bad; for it is not a felony to break the King's pardon, except in the two cases, in the 16th and 19th of the present King: the 16th of Geo. makes it felony, first, in persons who are sentenced to be transported to return; next in persons that have agreed to transport themselves to return; in the first case, it is a distinct felony being at large under the sentence of transportation; in the next case, where the persons have agreed to transport themselves: in the 19th of the present King, it also makes it a felony for capital convicts to be at large after they have been ordered or received pardon, on condition of being transported, because they then become under a new sentence, the sentence of death is done away, and they would not have been guilty of a capital offence without that clause; therefore it was necessary to put them in the same situation, in the case of a capital felon who agrees to transport himself; and it was not necessary for the 19th of Geo. III < no role > . to take up that, in the case of a capital felony, because it was needless to make that a new felony, where the party was liable under his former sentence; therefore the legislature in the 19th of the present King, seems to have omitted both those cases, upon this very principle; I think therefore that the indictment is supported. I have seen a correct state of Maximilian Miller's case; there it was on condition of giving security to depart the kingdom, and the Judges never made any solemn adjudication, but in point of fact the prisoner was remanded to his former sentence.

Mr. Garrow to Jealous. When you took the prisoner, what money had he? - Nine shillings, and one out of them bad.

I believe he was in a miserable state of indigence? - He looked a deal better than he does now; he was in blue, but he looked a deal more decent.

Do you know what the state of his health was? - I believe he was not very well.

BENJAMIN APPLEYARD < no role > sworn.

I am a stationer, I have seen the prisoner before.

In what state was his health after he was discharged from Newgate? - He came to my house to ask me to apply to Mr. Dunkennan who lodges with me to assist him with a little money to carry him out of England, as he was very much distressed.

In what state was his health then? - He had a thick stick in his hand, and he rested himself much upon it; and he asked me to let him sit down in the shop a little; he seemed very lame, and he said he was bad in health, and the irons, while he was in Newgate, had hurt his legs, he did not know how to walk; this was the day after he was discharged out of Newgate; he seemed to be very much distressed, and in very bad health.

Do you believe that these causes prevented him from going abroad? - I believe they did, for he wrote a letter to me, and sent by his wife, praying for a trifle, ever so small, saying that his time was almost out, and that if he had not a trifle to get him to the water-side, he must fall under the law.

He did not get any large assistance? - He got nothing at all.

THOMAS BREADALL < no role > sworn.

I saw Mr. Aikles after he was discharg ed out of Newgate, his health was very indifferent, he had symptoms of a fever, and his legs were swelled, and very bad; and a week after he came out of Newgate, he fell very ill, and was confined to his bed, he had an ugly malignant fever.

Did he appear to you to be very indigent? - Very much so, and his wife and a gentlewoman, Mrs. Brookes, came to me, and undertook to pay me; he was not in a situation to pay me at that time.

Do you believe that the miserable state of his health, and his want of money, prevented his getting abroad? - I really believe it did.

Mr. Garrow. Mrs. Brooks is not here?

Prisoner. Mrs. Brooks was taken very ill on Saturday, she was here till Saturday, and all last sessions; Mr. Holloway can testify the truth of it.

Court to Jury. All laws must be considered with liberality, and a sort of equity, in order to pat a due construction on the meaning of them; and I confess, gentlemen if you are satisfied, that thro' ill health, and this distress that you have heard that the prisoner was in, he was prevented from performing the conditions that the pardon required, that it would be too strong to impute to him, that he was feloniously at large in defiance of this pardon: the act says, lawful excuse; certainly illness, and sickness, the visitation of God will operate as a lawful excuse, and if you should be satisfied that there was no fiction in this case, but that in reality and truth this was what prevented the man from going abroad, and that he meant and intended to go abroad; I own, in that case I think you should acquit the prisoner; on the other hand, if you think this is an artifice, not founded in reality, then you will find him guilty.

NOT GUILTY .

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