902. GEORGE THORPE proceedingsdefend was indicted for feloniously returning from transportation, and being found at large on the 9th day of August last, without any lawful cause .

CHARLES JEALOUS < no role > sworn.

I apprehended the prisoner the 9th day of August, in the morning, about seven; I took him out of bed, upon an information of his being at large.

JOHN OWEN < no role > sworn.

In January sessions, 1785, upon the prosecution of Mr. Hobert the prisoner was convicted of stealing a side of bacon, in Fleet-market, he was sentenced to be transported.

The prisoner delivered in a written defence, which was read by the Clerk of the Arraigns; the purport of which was, that though he was at large, yet it was not without a lawful cause, for he was discharged from Newgate by virtue of his Majesty's pardon, and he endeavoured to obtain a passage out of the kingdom; but through poverty was not able to effect it, and therefore was at large without his own inclination and consent, and had committed no new offence, but had conducted himself industiously.

The warrant read; signed James Adair < no role > , Esq; Recorder, dated 9th April, which was a warrant for his discharge, upon his giving security to depart the kingdom. The pardon read; signed G. R. countersigned Sydney, dated 25th March.

For the PRISONER.

JOHN THORPE < no role > sworn.

I am a plumber and glazier; I am brother to the prisoner, he went from Newgate to my house, I believe it was in the month of April, I came into this court, and paid his fees, and took him with me.

Mr. Keys, prisoner's counsel. How long did he remain at your house at that time? - Only that night; he went immediately with his mother to her house at Hamondsworth, near Langford, I was down there, and saw him there; he remained there in a place, he was at work till he came to London to my house; I made frequent applications while he was with his mother for a ship to get him to sea.

He had no money at all of his own I believe? - None at all.

Would his father-in-law assist him at all? - Not at all; I offered to pay five pounds towards the passage, his father-in-law would not give him any; it was five or six weeks after before I heard of the ship going to America; ten guineas was the least sum I could get him to go for; I know he was employed, but I never saw him at work; I have seen his father-in-law at work, he was to have gone from his mother to Portsmouth, he was wholly unable to have gone for want of money; it was his desire to have gone; he was kept a close prisoner; he was at his mother's, and was very ill; he had a rash, and the irons made his leg bad; he got employed in emptying a mill-pond; his father-in-law said he would give ten pounds to have him apprehended.

Court. Has your mother any property, or your father-in-law? - Yes, I believe they have upwards of one hundred pounds year.

What sort of property is it? - Leasehold houses.

CHARLES COOKE < no role > sworn.

I am a day labouring man, I know the prisoner, he worked with me by Salt-Hill in dragging of mud from a mill-pond, he worked seven weeks with me, I believe he first came out about April or May.

Can you recollect the day he quitted work? - No.

Mr. Keys. I believe he had no money at this time? - None, but what he gained from his daily labour; there was a man after him to take him, that was the cause of his leaving it; he behaved exceedingly well, and would have wished to have staid if he could.

WILLIAM MORRIS < no role > sworn.

I am a painter in Clerkenwell, I was employed by Mr. Thorpe's directions to look for a ship for the prisoner; I went several times to the Carolina Coffee-house < no role > ; I first heard of a ship in about a fortnight; we could not get a ship for less than ten guineas, and they would not take him unless the whole money was paid down; the lad was very desirous of going abroad in any way; I applied to a gentleman to recommend him on board to work his passage.

Court to Jury. Gentlemen, if I were now obliged to decide the law upon this case, I should find it my duty to tell you, that I think the prisoner's defence well warranted, and that in point of law he ought to be acquitted of this offence imputed to him by the indictment, because the condition of the pardon being, that he should give a security to the satisfaction of the Recorder, and having done so, I think that by that he has literally fulfilled the condition of his Majesty's pardon, and that the consequence of his not departing the kingdom, pursuant to the King's intention, is the forfeiture of that recognizance in himself, and in his bail: but there has been a former case exactly similar, in which from what fell from the Court, though there was no solemn opinion given, yet the Court then appeared to have an opinion different to mine; if therefore the case turns out to rest entirely on this point, the safest way will be for you not to rely on my opinion, but to find the prisoner guilty of the fact, with assurance that he will have the benefit of the law: the prisoner says, that he not only was discharged by lawful warrant, and by that means had, as he thought, literally fulfilled the condition of his pardon, but, says he, I did all I could literally and substantially to follow his Majesty's intention; I did all that lay in my power to quit the kingdom; now it is my duty to state to you my opinion in point of law on the nature of that defence: intention is necessary in all cases to constitute criminality, and that is a maxim of criminal law I hope will never be forgotten either by Judges or Juries; but a culpable neglect is a breach of the law certainly: there is another maxim of the law, which is, that the law does not expect or command things impossible, it would be perfectly absurd if it did; now, see how far these two maxims apply, which are clear and undoubted law; the first, that intention is necessary to make a man guilty of any criminal act; the next, that the law does not require impossibilities: first, the prisoner says, it was not with his own will that he was at large at all; next he contends, that it was not in his power to quit the kingdom, and that therefore the law could not require him to do what is impossible; now, although the prisoner has made out an extremely favourable defence, yet, I have doubts how far it does or does not amount to a strict legal justification; for although the law will not impute crime without intention, and he must be wilfully at large without probable cause, yet, a palpable neglect is within the intent and meaning of the law, and the question is, whether you think the prisoner did every thing in his power to complete the condition of his pardon, and could not have done more? he appears really to have endeavoured to obtain a passage to America, and actually off red to work his passage over, which seemed to be all he could do in that respect; he states that is the only place where he could get a livelihood. therefore he did not try to obtain a passage at any other place; he might, without difficulty, have got leave to have gone to some of the near parts on the coast of France or Holland, but then he would be a stranger in a foreign land: you are to judge whether the difficulty he found in departing from the kingdom, in the manner I have stated to you, amounted to all due diligence; it is my duty to tell you, if you are satisfied that he was not wilfully and intentionally at large, you ought to acquit him: you are to consider whether he was wilfully and intentionally at large, and whether there was that sort of impossibility to excuse him in point of fact; if you believe that he was not wilfully at large, but did all that in him lay to obtain a passage out of this kingdom, in that case I think that in law as well as in justice you will do right to find him generally not guilty of this indictment; if on the other hand you think that though it may be a favourable case, so as to set the prisoner in a situation deserving of future mercy from his sovereign, yet, that he might possibly have done something more than he did to facilitate his departure from this kingdom, and to shew his willingness for such departure; in that case it will be resolved into the first point of law, and if you think it comes to that point, you will find him guilty, and that point will be reserved to be hereafter determined by the Judges.

NOT GUILTY .

Court to Prisoner. The case that you have made out in evidence before the Court is so favourable, that I think there would be a hardship in detaining you in prison against my own opinion, especially when the learned assistance that I have now the advantage of, both the learned Judges and my friend Mr. Rose, are of my opinion, and as there is no judicial authority to detain you in prison; but I would recommend it to you to take an opportunity of leaving this country, and I think I can recommend to you a way of carrying that into execution, you have entered into a recognizance in one hundred pounds, and two other persons in fifty pounds each, to perform that condition, you and they have most clearly forfeited that recognizance, and therefore the only means your securities have left to avoid the payment of those sums, which I will take care they shall otherwise pay, will be to supply you with money for the purpose of your getting out of the kingdom; therefore, you will apply to the two persons who are your bail, and inform them that unless they supply you with money for that purpose, I will take care that they shall be served with process. Let the prisoner be discharged out of custody.

Tried by the second Middlesex Jury before Mr. RECORDER.