Holmes says, that Thompson was so tor-soner in the Strong Room? You have heard, mented by the ward, that Thompson desir- the witnessses for the king all agreed that he ed him to go to Acton, to desire he might go went out on days, though he was locked up into the Strong Room, and upon that Acton on nights. gave leave; and says, that he was desired to go to the sick ward; and says, that he was not confined in the day-time, unless he was bolted in by his fellow-prisoners, that had played the rogue with him. Elizabeth Gosling; she gives an account as her husband did; that Thompson owned how friendly the prisoner had been to him, and that it was so far from being looked on as a punishment, that it was a matter of favour thought by Thompson to be there. Brown says, that he talked with Thompson, and Thompson said, God bless Acton, he had saved his life, for if he had stayed any longer in the ward, he should have died; and says, Davenish says, that the people of the ward came for him, and he saw him carried quite through. He goes into the Strong Room, and asked Thompson, how he came to be there; and he owned, by the civility of Acton that he was there. He says, that Thompson had a bed, and that he went out and in when he pleased. Johnson says, that Thompson said, that he thanked God that Acton was so good to let him be there. There were two other witnesses, who spoke to his asking leave. Gentlemen, now you will consider how the two evidences tally, and what injury there was done to Thompson. For the king, they say, that he was put there without, and against his consent; and for the prisoner, eleven witnesses say, it was with his consent. If you should be of an opinion that it was without his consent, then it deserves another consideration; but if you should be of an opinion that it was with his consent, then there must be an end of this. The witnesses for the prisoner all agree, he went out on days, and he was not locked up on nights. As to his going to the sick ward, the witnesses say, that Acton ordered it, and he refused to go. If this place gave him the distemper of which he died, and if he went without his consent, you will find the prisoner guilty; but if he went out and in when he would, in consequence, he was not confined there; there is no reason to find him guilty. When be asked leave to go to the Strong Room, the prisoner gave it in a very humane manner, and gave him his choice, to go there, or into the sick ward. Upon the whole I must leave it to you. The Jury agreed upon their Verdict immediately, without going out of court. Cl. of Arr. Who shall say for you? Cl. of Arr. William Acton, hold up thy hand. (Which he did.) Look upon the prisoner, how say you; Is he Guilty of the felony and murder whereof he stands indicted, or Not Guilty ?-Foreman. Not Guilty. Mr. Strange. The prisoner, my lord, has been very much fatigued, and desires, upon paying his fees, he may be now discharged. Acton. My lord, I desire you will discharge me now. Mr. Baron Carter. I can't comply with your request. Mr. Strange. Mr. Paxton, speak to the judge. [Upon which Mr. Paxton went out of court.] Mr. Strange. Mr. Oglethorpe, I desire you will interfere, and speak to the judge, and that you'll give your opinion. Pray speak, pray tell whether you consent. Mr. Oglethorpe. Were I prosecutor, I should desire the prisoner might be released; not that I think him innocent, but that every Englishman, let him be never so unjustly acquitted, In the next place, you will consider in rela-hath, by the Habeas Corpus act, on his action to the distemper. As to the diabetes, some have said on one side, that they looked upon it to be mortal, and that he never complained. It is very observable, that he never should complain. In the next place, they tell you, how he caught it, by lying upon the bare boards. Some of the witnesses for the king say, he had only a sort of a bed; and eleven witnesses for the prisoner say, he had a bed; and if he had, he did not lie on the ground, and could not have the distemper from lying there; it was impossible. The third part is, whether he was a pri- quittal, a right to be discharged; nor can any subornation of perjury, or any management of a jury, prevent it, for they are cognizable at another time. [There being then a great noise in the Court, interrupted his speaking for some time, and as soon as it ceased, he went on again.] As I said before, I am not the prosecutor: if I were, I knew what I should have done. The Attorney General was ordered to prosecute by the crown and it is he, or bis representative, that should answer this question, and not I; and since I am speaking, I desire to be in20 dulged a word more, that 1 may tell the reason of my coming here. Having had the honour of being one of those gentlemen who were appointed to enquire into several matters, some of which have been this day under your consideration; not knowing, therefore, what questions might arise, for the clearing up of which I might be necessary, I thought it incumbent on me to attend. the only question was, Whether a place within the prison, called the Strong Room, was a proper place to confine disorderly prisoners in? And the jury upon all the four trials acquitted him, to the satisfaction of almost every body; and in consequence of these acquittals he was discharged. Presently after he was at liberty, a single justice of the peace, upon information of a fifth person's having been put into the I have had nothing to do in conducting the same Strong Room, and dying within a year prosecution here, which has appeared evident-after, thought fit to commit the defendant again ly; therefore I can't imagine why any application should be made to me. DOMINUS REX versus ACTON. Michaelmas Term. 3 Geo. 2.* The Defendant was deputy-keeper of the Marshalsea-prison; and upon the Address of the House of Commons, was prosecuted for several murders, supposed to have been committed by him on prisoners in his custody. He was tried on four several indictments, whereon * Sir John Strange's Reports, vol. 2, p. 851. for murder; and upon a Habeas Corpus, Strange pro Def. moved he might be admitted to bail, on producing copies of the informations, and affidavits of the former trials, and of the identical nature of the offences; but the Court refused to look into the informations, though they were pressed with the lord Mohun's Case, Salk, 124, where they looked into the deposi tions taken by the coroner, upon a motion to bail: And, in the present case, they remanded the defendant; who lay in prison till the next assizes; when the grand jury did him the justice to return the bill Ignoramus, and he was discharged. 486. Several Proceedings relating to the bailing Mr. BAMBRIDGE, both at the King's-Bench, and at the Sessions-House, in the Old-Bailey, previous to his Trial for Felony :* 3 GEORGE II. A. D. 1729. At the King's-Bench, June 7, 1729. &c. which it was impossible for him to do, THIS morning Mr. Bambridge was brought to inspect the books, and examine the officers without having his liberty to go to the Fleet, by Habeas Corpus from Newgate to the Court there; and eight persons being ready to be. of King's-bench. The Habeas Corpus, and the return, which contained the several mat-therefore, it was hoped the Court would admit come his sureties, whereof notice was given; ters, wherewith he was charged, were read, him to bail. The king's counsel alledged that viz. 1. A Commitment by the honourable the crime which the prisoner stood charged House of Commons, for many Barbarities, with, on oath, was felony, without benefit of Cruelties, and Crimes, in the execution of the clergy: that, as to what was said of the pri office of Warden of the Fleet. 2. An Indict- soner's being liable to the pains of death, in ment for the Murder of Mr. Castell. 3. A case he refuses or neglects forthwith to make Charge of Felony for stealing goods. out the said lists, &c. the said word 'forthwith,' in this case, imports a convenient time, or as soon as is reasonable; and therefore, on behalf of the king, they hoped he should not be admitted to bail. The Court were of opinion, that as this case is circumstanced, there were not sufficient reasons to admit the prisoner to bail, the crime he is charged with being capital; and one of the king's evidence being out of the way, the last day of the sessions at the Old Bailey, the bill against him was not preferred, and the Court there having ordered the pri soner's detainer till next sessions. The Court also declared their opinion, that in case the prisoner, to the utmost of his power, complied with the act of parliament, in delivering such lists, &c. he would be no way liable to the penalties thereof; in the end he was remanded to Newgate. The prisoner's counsel moved the Court, that he might be admitted to bail; for that as to the first of the said commitments it was ended by the expiration of the sessions of parliament; as to the second, the prisoner upon a fair trial, had been acquitted; and as to the third, it was a charge brought in upon the prisoner, on his being acquitted of the murder, and no bill of indictment either found, or offered to the grand. jury, though they continued sitting till the day after the trial; and more especially, was it reasonable to admit him to bail, for that by a late act of parliament, he is obliged, on the pains and penalties of felony, forthwith to make out true and perfect lists of all the prisoners in the Fleet, till June 14, and to give up all securities, * See the preceding and following Cases, DNS. REX ver. BAMBRIDGE. At the Sessions of Oyer and Terminer, and gaol delivery, held at Justice-hall, at the Old Bailey, on the 9th day of July, 1729, before sir Robert Baylis, knight, lord-mayor, and others his majesty's justices. The Solicitor for the Crown not being ready to try Thomas Bambridge, who stood indicted for felony; the king's counsel did not attend till the 9th of July, the 1st day of the sessions; when lord chief-baron Pengelly, being ill, was out of town; and Mr. Justice Reynolds being obliged to go the circuit; there were only on the bench, sir William Thompson the recorder, and Mr. Serjeant Raby, the deputy recorder. When Mr. Bambridge was brought from Newgate to the Old Bailey, he petitioned the Court, that he might be either tried, bailed, or discharged; and that in the mean time he might, under the custody of the keeper of Newgate, be permitted to go to the judges chambers, to inspect the bail books, and commitments, to enable him to perfect the lists of all his prisoners, which the present warden had demanded; and which by a late act of parliament he is obliged to deliver, on the pains of felony without benefit of clergy; and the judges going their circuits on Monday next, his petition set forth, that it might be too late for him, after the end of the sessions, to inspect the said books. The Court were pleased to record the petition, and to grant the first part of it, viz. That he should either be tried, bailed, or discharged; and as to the other part of his petition, declared that he could not incur the penalties in the said act, if he did the utmost in his power to perfect the said lists.-And next day, (July 10,) Mr. Bambridge, who had petitioned the Court to be tried, bailed, or discharged, was indicted, together with James Douglas, and William Pindar, (his accomplices) for breaking open the door, and feloniously stealing the goods of Mrs. Berkley, a prisoner in the Fleet; when the grand-jury found the bill against them all; whereupon Douglas and Pindar absconded. And on 12th July 1729, being the last day of the sessions, Thomas Bambridge (being before arraigned) was brought to the bar, to be tried for the felony whereof he stood indicted; when sir William Thompson spoke as follows: Sir William Thompson. As I have the honour to be a member of the House of Commons, and as this prosecution was ordered by Address from the House of Commons, it may be objected by the prisoner, that I'am both a prosecutor and judge. Bambridge. I have no personal objection to your trying me; but as you are a member of the House of Commons, I have long had a regard for you, and I beg I may not be understood as having any personal objection to you; but I beg no person belonging to the House of Commons may have any thing to do with it. Sir William Thompsor. Mr. Attorney, you see the prisoner thinks me not a proper judge to try him. Att. Gen. I apprehend it is not a legal objection; I believe it has frequently happened, that members have sat as judges, where prosecutions have been ordered by the House of Commons. Sir William Thompson. He may not think me divested of partiality; it may be thought in me a remote objection, but I would avoid lying under any imputation of partiality. Att. Gen. I don't say it is not a legal objection; as the prisoner does insist upon it, it is not right in me to insist upon your trying him; but if you do not think proper to try him, for the sake of the prosecution, and the solemnity of it, I hope the trial will go off till a judge is here: but I am told there is danger that some of the witnesses may be gone out of the way; and as witnesses are the most material in all trials, I should be glad of its coming on as soon as possible. Sir William Thompson. I will tell you how that matter happens; there is not a day next week, that my lord-mayor is not engaged in business; suppose it should be put off till Monday se'n-night, some of the judges may be come home from their circuits on Saturday night; the sessions shall be adjourned on purpose; there shall be all the care in the world to support the prosecution. As this matter does happen, and the prisoner still insists upon it, let it be Wednesday or Monday se'n-night. Att. Gen. I believe Monday will be the properest day; lord chief-justice Eyre, and baron Carter, may be in town then. Sir William Thompson. He sees the inconvenience; if he will wave the objection, I am ready to try him, and he shall have all the indulgence the law will allow; I do it not to wave the fatigue; and as for Mr. Serjeant Raby, he is not well, he has had an ill state of health for some time, and is not able to try him. Att. Gen. If it goes off to Monday sevennight, it may be put off till next sessions; therefore I should think it better for the prisoner to be tried now: I don't desire him; it shall be voluntary in him. Bambridge. I insist upon the objection. Att. Gen. Pray let it be on Monday sevennight. Sir William Thompson. It is the Attorney's desire, that it may be adjourned till Monday seven-night. Bambridge. The trial I went under last sessions, for the murder of Mr. Castell, met with false representations in the papers; therefore, rather than run any hazard of a misrepresentation, I desire it may be adjourned to the time Mr. Attorney mentions. Sir William Thompson. What was inserted in the papers I have nothing to say to. Bambridge. If things were misrepresented then, they may again; and I have suffered so much in my character under such misrepresentations, that I ought to be cautious how I conduct myself. Then the Court was adjourned to Monday make to the Court, that the trial of Mr. Bamseven-night. July 21, 1729. Proclamation was made for information. Cl. of Arr. Set up Thomas Bambridge. (Which was accordingly done, and the indictment read in English.) Sir William Thompson. This matter was put off till to day (the prisoner having thought fit to object against me), in expectation that some of the judges would come to town. My Lord Mayor has sent to those in town, and they sent word, that it would not be convenient for them, being fatigued with the circuit. Att. Gen. Mr. Serjeant Cheshire and myself are ready, and the king's witnesses are ready. Sir William Thompson. I have had the objection in my mind; and the more I consider of it, the more I think it will be very improper for me to try him. I know no instance, no parallel.There was an act passed last sessions of parliament, to which I was a party; the prosecution was ordered by Address from the House of Commons, to which I was a party; and it does remain a scruple with me, that it does not become me to try this man.-The trial must be put off till next sessions. Lord Mayor. The judges sent word, that they were so fatigued with the assizes, that their health would not permit them to attend. Att. Gen. I have been here twice: next sessions is the 27th of August; I must be out of town, and cannot be able to attend the trial. Serj. Cheshire. I shall be 150 miles out of town at that time." Sir William Thompson. The sessions you don't usually attend; I wish it was otherwise: if you can tell me of any case where a judge, acted as prosecutor and judge, I will try him. Att. Gen. I can't recollect any precedent; but the Court of King's-bench grants informations, and tries the cause after. Sir William Thompson. After the Court of King's-bench grants informations, they hear both parties. Whoever reads the act passed last sessions, if I had tried him, would say I was not impartial. Att. Gen. If it is a scruple the prisoner makes, he cannot be discharged. Sir William Thompson. The trial must go over; it must take its fate. Mr. Allen, take care of the prisoner. At the Old Bailey, Aug. 27, 1729. DNS. REX ver. BAMBRIDGE. Mr. Conningsby attended on behalf of the crown, and made a motion to put off the trial of Thomas Bambridge till next sessions; but the Court did not think fit to enter into the argument then, and deferred it till the 29th of the same instant. August 29. Mr. Conningsby. I am of counsel for the king, my lord I have an humble motion to bridge may be put off till the next sessions; and when I ask this, it will be necessary to assign some reason: the last time I made the motion to the Court, your lordship was pleased to determine, that the prisoner was not in the meaning of the Habeas Corpus Act, as he waved being tried himself; and therefore it is discretionary in the Court what they will do in this matter, as the trial was before put off by the prisoner's concurrence. My lord, the king's counsel being out of town, or upon the circuits, is one reason; but I don't barely insist upon that; for I have an affidavit, that a material witness for the king is absent, and can't be found; that he has absconded for debt; but that we shall be able to have him by next sessions, though not now; I submit it upon that. Then the affidavit was read, which was to the following effect: "Nicholas Comer maketh oath, That he had sought after Gifford Lane, formerly clerk to Mr. Gybbon, late deputy warden of the Fleet, to serve him with a subpoena; but could not find him out, because he has absconded for debt; but believes he shall find him by the next ensuing sessions; and that it was not safe to proceed to trial without his testimony, &c." Mr. Conningsby. I hope, upon this, my lord, the trial will be put off. Mr. Just. Probyn. While Mr. Wynn is speaking, I desire I may look over the affidavit. Mr. Wynn (Counsel for the Prisoner). My lord, I hope the reason given is not sufficient to put off the trial: I will not mention now the long time that he has been kept in prison, it is so fresh in memory. As to the absence of the king's counsel, there is no occasion for them, as that learned gentleman is present; and I humbly apprebend, that can be no foundation to put the trial off. The next argument is founded upon the affidavit of Nicholas Comer, That he bad not been able to find Lane; and that Lane was a material witness for the king: what foundation be had to believe Lane a material witness does not appear; and it is very easy to seek for a man where he is not to be found. The other day, my lord, there was nothing then pretended but the first part of the motion; and Mr. Paxton himself will own, that he could assign no other reason than the absence of the king's counsel; and, I presume, as your lordship would not allow that as a sufficient reason then, I hope you will not now. At the latter end of a sessions no affidavit, they themselves are conscious, can have any weight. They supposed that your lordship would hardly enter into it now, and, for that reason, have very artfully spun it out: I called upon them then to give a reason for putting the trial off. Why was there not a proper application yesterday? The affidavit would have been filed, and the prisoner would have had a proper opportunity to give evidenee as to the character of Comer; and if any thing is to be presumed, your lordship will presume it in favour of the prisoner, I will not take up any more of your lordship's time; but humbly insist, that your lordship will proceed upon the trial, or admit him to bail. Mr. Conningsby. The learned gentleman, my lord, insinuates, that we searched for Lane where he was not to be found: the affidavit sets forth, That Comer searched at his place of abode, and at other places, where it was thought he was likely to be. We do take upon us to say, he is a material witness: if we swear falsely, that lies upon us to answer; and, I apprebend, the crown would be no more surprised than the prisoner. Bambridge. As to Lane's being a material witness, if you look upon the indictment, you'll not see him upon the back of it. Mr. Parton. That's not to the purpose; for we seldom put the most material evidence on the back of the indictment. Bambridge. I beg leave, my lord, to mention one circumstance, which is notorious, and now publicly talked of: there was one gentleman of the grand jury, who was very solicitous to the rest of his brethren to find this bill, has laid violent hands upon himself for the injury done to me. Mr. Just. Probyn. That is not to the purpose. Bambridge. He has not sworn to Lane's place of abode. Mr. Paxton. There is one remarkable circumstance, that the Court was adjourned for several days, that the prisoner might have a legal trial, and it went off upon the prisoner's account. Bambridge. I am surprised Mr. Paxton should say that; I did not speak one word that day. I have in writing what was said, which there is one ready to swear to. [Which he read over.] Mr. Just. Probyn. That relates to the prayer of the Habeas Corpus Act. When people are in custody a considerable time, without some particular reason, they should be discharged. Mr. Conningsby. I mentioned nothing of the appeal now. Mr. Wynn. You did the other day. Mr. Baron Comyns. As, on the one hand, care should be taken that the prosecution should be so carried on, that the person guilty should be punished; so, on the other hand, it should be carried on with such speed, that no person should be longer confined than necessary. It does appear, by the concessions on all hands, that the prisoner has continued in prison ever since May last: though, by the waver of not being tried, he is not intitled to his discharge, yet he ought to be considered as to the length of time he has continued in prison; unless you can show any disadvantage to the crown, if he is admitted to bail. If it secures the liberty of the subject, on the one hand, we shall take care on the other, that the bail shall be so sufficient, that he may be amenable to justice. Mr. Paxton. The trial was put off upon Mr. Bambridge's own motion. Mr. Justice Probyn. He ought to be admitted to bail. Mr. Bambridge, bave you bail ready? Bambridge. I can't say I have this instant ; but if it is your lordship's pleasure to order bail, upon giving notice to the solicitor for the crown, I'll get them ready. Mr. Just. Probyn. Give the names of the bail as soon as conveniently you can; for it should be done in court. Mr. Wynn. Can you undertake to get them ready in two or three hours? Bambridge. I have two or three ready in court now. Mr. Wynn. be bound in? What sum, my lord, shall they Mr. Paxton. I desire, my lord, they may justify in a particular sum. Mr. Just. Probyn. He shall enter into a recognizance himself of 2,000l. and the bail 1,000l. a-piece. Mr. Paxton. I should have an opportunity to enquire into their circumstances. Mr. Williams. You know me. Mr. Parton. I know you to be a tradesman in Long-acre; but don't know what you are Mr. Just. Probyn. You that are here now may justify: you say you know one of them, only want to be satisfied as to his circum stances. One of the reasons always admitted, is the want of evidence for the prosecutor: if endea-worth. vours bave been used, and they cannot be had, that always is a sufficient reason. As to the affidavit, it is not so strong as usually is made upon such occasions: it says, that he was concerned for the prosecutor; but it don't appear how he was concerned. He says, that he had made enquiry at Mr. Gybbons's house, but don't say that he ever lodged there; but goes on and says, that he enquired at several other places where it was likely to find him; but don't say he lodged at those places. Why won't you consent that the prisoner should be bailed? Mr. Conningsby. I don't know what service it will be to him. Mr. Wynn (afterwards Serjeant). I am surprized that any thing should be mentioned about the appeal, which is a private cause. Mr. Wm. Beatniff (coachmaker in HighHolborn). I am ready, my lord, to justify. Mr. Just. Probyn. Is he sworn? Mr. Tanner. Yes, my lord. Mr. Just. Probyn. Mr. Beatniff, are you worth 1,000l. when all your debts are paid? Beatniff. I am, my lord. Mr. Just. Probyn. Is Williams sworn? Williams. I cannot swear to 1,000l.; but I will swear to 500/. Mr. Just. Probyn. Are you worth 500l. when all your debts are paid? Williams. I am, my lord, |