Saturday, 26 May 2012

26th May 1812: The Chester Special Commission commences

On Tuesday 26th May 1812, the second special Assize held in the North West commenced in Chester. The purpose of the trials were to try those committed to Chester Castle for offences in Cheshire during the disturbances the previous month.

The Leeds Mercury of 23rd May suggested that prior to the start of the trials 'an intimation was received' (presumably in a threatening letter) that an attempt would be made to rescue the prisoners. A week later, the Mercury reported on how seriously the authorities were taking security: 600 of the Local Militia of the city of Chester, as well as 300 of the North Lincoln Militia and 90 of the Oxford Blues (cavalry) would occupy the Castle Yard during the trials. Every man had 10 rounds of ball cartridge.

The presiding Judges - Sir Robert Dallas and Francis Burton MP (second justice on the Chester circuit) - arrived on the Monday evening, and were met by the High Sheriff of Cheshire, Edmund Yates. They proceeded to Chester Castle to open the Special Commission.

After attending Divine Service at Chester Cathedral on Tuesday morning, the Judges proceeded to Chester Castle to swear in the Grand Jury, who were as follows:

Wilbraham Egerton, Esq, Foreman.
S. Alderley, Esq.
Richard Congreve, Esq
W. W. Currey, Esq.
C. Cholmondeley, Esq.
[ ] C. Dod, Esq.
Birkenhead Clegg, Esq.
Booth Grey, Esq.
Henry Hesketh, Esq.
Bell Ince, Esq.
Charles Leycester, Esq.
Egerton Legh, Esq.
Thomas Marshall, Esq.
Richard Richardson, Esq.
Roger Swettenham, Esq.
T. Tarleton, Esq. Jun.
E. O. Wrench, Esq.
Robert Willmot, Esq.
George Ormerod, Esq.

The Chester Courant of 2nd June 1812 recorded the charge that Judge Dallas then delivered to the  Jury:
Gentleman of the Grand Jury,

It is not my practice, as you well know, to address anything to you, on ordinary occasions, in the way of normal charge. The cases which are, generally, in the Calendar, being of common occurrence, seldom require any particular remark, and, with the exception of a single instance, which being of a special nature demanded special observation: I have never detained you beyond a few moments, from giving immediate attention to the business to be submitted to your inquiry. The service, however, which we are now called upon to perform, is of a more extensive and complicated nature, and may become, in many respects, both of fact and of law, of some nicety and delicacy of execution.

Of their magnitude and importance, it is scarcely necessary for me to speak, nor to inform you that we are now assembled, not in the common course of public duty, but under a Special Commission; which, on behalf of his Majesty, his Royal Highness the Prince Regent has thought fit to direct, for the general delivery of the gaol of this county, but which will at present be confined to the respective trials of the prisoners now in custody, under the charges of having been concerned in the several riotous and felonious practices that have of late taken place; and which, tending to the subversion of all order and Government, demand early enquiry, and if the results should render it unfortunately necessary, early example.

And, Gentleman, tracing the outline of the duty to be discharged, from the Calendar, with which I am furnished, I lament to observe, as it is not only grievous in respect to the number of commitments, but equally so, in the modes and varieties of offence, comprising almost every sort of crime which guilt, diversified into all its forms and shapes can present, and calling for the application of numerous common law and statuary provisions; with respect to some of which, as connected with the bills of indictment, to be submitted to you, it may be proper that I should make a few observations.

The least and lowest on the list, though the rout and origin from which all the others appear to spring is the charge of riotous and tumultuous assembling; taken singly, and by itself, it is a misdemeanour only; but it is the peculiar property of this offence, even when the least criminal, in its conception, seem to change its original cast and character: and what at first was, perhaps, but a disorderly meeting, more for the purpose of clamour and complaint, than for any serious, and still less felonious mischief, branches out, as it proceeds, into every species of crime, running through the range of capital offences, and often terminating in the guilt of high treason itself. Continuing, however, our present consideration to the charge of riot, as an offence at common law, more or less criminal, according to the circumstances of the particular case, I can do no better than give you the description, as it is to be found in books of authority.

“A Riot, says Mr. Serjeant Hawkins, seems to be a tumultuous disturbance of the peace by three persons or more assembling together of their own authority, with an intent mutually to assist one another, against any who shall oppose them in the execution of some enterprize of a private nature, and afterwards actually executing the same in a violent and turbulent manner, to the terror of the people, whether the act intended were of itself lawful or unlawful.”

It is not necessary to follow the detail into which he afterwards proceeds; but for the purpose of immediate utility, one or two points only need further be stated

“It seems, he says, to be certain, that if a person seeing others, actually engaged in a riot, do join himself with them, and assist them therein, he is as much a rioter as if he had assembled with them at first, for the same purpose.” And as to the degree of violence or terror with which the intended enterprize must be executed, it appears, he adds—“To be clearly agreed, that in every riot there must be some circumstances either of actual force and violence, or at least of an apparent tendency thereto, such as are naturally apt to strike a terror into the people, as the shew of armour, threatening speeches or turbulent gestures, for every such offence must be said to be done to the terror of the people:” and this finishes what I have to say to you on the subject of misdemeanours.

The class of cases to which I shall next advert, are those of felonies, not capital.

Of these, the foremost in point of danger to the public, and of proportionate guilt in the individuals concerned, is the offence of taking or administering an unlawful oath or engagement, which may be treason or felony, according to the circumstances of the particular case, but which I apprehend, will come before you in the shape of felony only.

Considered in this light, it is an offence created by a particular statute and which applies to two descriptions of person—those taking an unlawful oath or obligation, and those imposing it; both of whom are put upon the same footing in point of criminality—such conduct, in each instance, being declared to be felony, and subjected at the discretion of the Court, to transportation to seven years.

With respect to the nature of the oath or engagement, it appears to me that the best direction I can give you will be, to refer to the Act itself, comparing the evidence before you with the description it contains; and I say the evidence, for it is not necessary the express words of the oath should be stated in the indictment, the statute providing that it shall be sufficient to set forth the purport, or some material part thereof. And as to what shall be considered taking the oath or engagement, here, again, you will be relieved from all difficulty, for it is declared, that any engagement or obligation whatever, in the nature of an oath, shall be deemed an oath, within the intent and meaning of the Act, in whatever form or manner the same shall be administered, and whether it shall be administered by any person, to any other person, or taken without any administration, by such person himself. Nor will it be any justification, should the fact be so, that the oath was originally taken by compulsion, unless the party taken it shall, within four days, if not prevented by sickness, or actual force, have declared the same, and the whole of his knowledge respecting it, in the manner the Act points out. This, of course, generally speaking, would be matter of defence to come from the accused; but I mention it as I go along, as the circumstances of compulsion, might, by possibility, appear in some such case, and leave you at a loss for its precise operation and effect, unless the provision of the statute were pointed out. And here again, Gentlemen, before finally quitting this subject, I must beg of you to consider whatever falls from me, as more intended to direct you to the sources of legal information, than as stating with exactness and precision what the law is; it will therefore be more satisfactory to me, and more profitable to yourselves, should any cases of difficulty occur, to refer to the letter of the law, which, of course, you will have before you; and if any doubt arises upon the meaning or construction, to apply to the Court.

I now come to offences of a capital nature, and of these the cases of robbery: that is, taking from the person by violence or putting in fear, will require your particular attention.

To constitute a crime of robbery, there must be a taking from the person by force, or by putting in fear, which supplies the place of force; and therefore in common cases, this offence is easily understood, and as easily established, for no man can doubt what is force or violence: and the threat of violence is itself putting in fear. In the common instance therefore, of a highway robbery, no difficulty can occur, that is not a mere difficulty factor, arising upon the truth of the story told, or the identity of the party accused.

The cases which will become before you, may, in many respects, not prove of so plain and distinct character, and therefore it is necessary I should state a few leading principles, as to be found in the books of criminal law, or settled by cases on a similar description.

I say, nothing as to actual violence, for that property so obtained, will amount to robbery, is that which precludes the possibility of doubt. The difficulty (if any) will arise upon what is putting in fear.

And first, it is clear that a threat of violence, and such as to induce a man of common firmness to entertain apprehension for his safety, is in law, putting in fear. On the threat of violence therefore, as well as an actual violence itself, no difficulties likely to occur but the difficulty (if any) can only be created by the consideration of what in law is a threat, so as to constitute putting in fear.

Now, with respect to this, it is clear that a threat need not be a threat in words, for even a request in terms, is meant only as a cover for a threat, being intended to operate as a threat, and accompanied by circumstances to give it that operation, and thereby excite fear, will be as much a putting in fear, as a direct menace, and therefore, the question in all such cases, will be a mere enquiry of fact, depending upon the precise circumstances of the particular case; was the request a pretence, and nothing more?

But not to leave this too much at large, floating in uncertainty, from any looseness or laxity of statement on my part, I will mention to you the substance of the leading case, applicable to the point, as your best guide on this occasion.

During the riots in London, in the year 1780, a boy, with a cockade in his hat, knocked violently at the door of the prosecutor, who opened it: the boy said, “God bless you! remember the poor mob;” the prosecutor told him to go along, which he said, “then I will go and fetch my Captain:”—he went, and the mob, to the amount of 100, and with sticks, and what else they could get, soon after came, headed by a man on horseback having his horse led by the same boy; on their coming up, the bye-standers said, “you must give them money,” and the boy said, “now I have brought my Captain.” Some of the mob said, “this gentleman is always generous.” The prosecutor then asked the prisoner how much? who answered, “half a crown, Sir;” on which the prosecutor gave the prisoner half a crown, and this was holden to be robbery.

One other circumstance it may, however, be proper to mention, and which is, that it is sufficient if the property be taken in the presence of the owner, it need not be taken immediately from his person, so that there be violence to his person, putting him in fear.—And further I should add, that a threat to destroy property, will have the same effect, with a threat of personal violence, as as destroy a man's house, and cases of a similar description.

Beyond this, I have also to point your attention to a different description of cases, of which I fear there are many in the calendar, and that is, the compelling a party, under pretence of buying, to part with property for less than it is worth: this is clearly robbery.

It is not necessary (indeed it might be otherwise than useful) to pursue any of these subjects more into detail. Whatever the principle of law is to result from matter of fact, slight circumstances will make the distinction between guilt and innocence legally considered: and therefore, beyond the most general illustration, no safe or steady light can be afforded.

On the remaining cases I am not aware that any particular remark will be necessary. Beginning to pull down, or to demolish a house, setting fire to it, burglary, stealing in a dwelling-house to the amount of 40 shillings, setting fire to a mill, all these are capital offences, but will depend for their investigation, merely upon the facts in proof; as will also another set of cases, which by the 22 Geo. 3, C. 41, are made capital felonies, that is, the destroying any silk or cotton manufacture in the loom, or any tools or utensils employed in the making them, or Juve down night breaking into any house or shop with such intent.

And, now gentleman, I have adverted in a general way, more at length than my inclination would have led me to do, but in obedience to what I feel my duty, to the several offences, which in the form of bills of indictment, are likely to come before you. With this general exposition, or rather allusion to what the law is, the task I have imposed upon myself is brought to a close; and beyond the line and limit of judicial duty, I neither feel disposed, nor do I think it proper to advance a single step. To what circumstances these disorders are owing, what may have been the remote, and what the proximate causes, I have no precise knowledge, nor the means of forming any very satisfactory conjecture; absolutely much less so, than you Gentlemen residing upon the spot. That of the multitudes assembled upon so many different occasions, there may not have been many induced to it by the pressure of distress; that there may not have been others seduced by evil example at the moment, it would not only be uncharitable, but unjust to suppose.

But I fear there is reason to apprehend, that much of the character of these dreadful outrages is of a different description: the printed hand-bills, which have been circulated for some time past; the discourses which have been held; the doctrines which have been published; the hopes held out to the disaffected; and the threats made use of to the well-disposed; and lastly, and above all that which was before surmised, but will now distinctly appear, at least in point of existence, though not of extent, the secret oath or engagement binding equally to the commission and concealment of crime; this cement and consolidation of all conspiracy; this stamp and treason itself! All these, put together, denote, and too plainly, for prudence to disregard, the instrumentality of wicked instigation, working to the production of something more than [illegible] or partial mischief. With this, however, exception, it may connect with the business before us, or appear in the course of it, we have at present no concern.—All we have to do is take care, that if the law has been invaded in the cases submitted to your enquiry, it should vindicate itself; and this, I have no doubt, we shall do in our respective stations, by consideration [to] discharge of the painful, not indispensable duty we are called upon to perform; always [illegible], as we shall, in the midst of faith and [illegible] to the public, that temperance and moderation are of the essence of justice, and that even strictness and severity cease comparatively speaking, to be painful when our [illegible] is become single, and we are left without choice.

His Lordship then directed Mr. Hudson to place the whole of the prisoners at the bar: and informed them that their trials would commence the following morning, at eight o'clock, when he expected they would be prepared on their parts.

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