3: First day of the trial
Chichester, January 16th, 1748.
This morning between eleven and twelve o’clock, the judges assigned to hold the assize by special commission, viz., the Hon. Sir Michael Foster, Knt., one of the judges of His Majesty’s Court of King’s Bench; the Hon. Edward Clive, one of the Barons of His Majesty’s Court of Exchequer; and the Hon. Sir Thomas Birch, Knt., one of the Judges of His Majesty’s Court of Common Pleas; went from the Bishop’s Palace, preceded by the High Sheriff of the County, with the usual ceremonies, to the Guildhall, where they were met by his Grace the Duke of Richmond, Sir Richard Mill, Sir Cecil Bishop, Sir Hutchins Williams, Harts., John Butler, Esq., Robert Bull, Esq., and others of the commissioners named in the commission for that purpose; and after having opened the said commission, and the same having been read, the gentlemen who were summoned to be of the grand jury, were called over, and the following twenty-seven, who were present, sworn., viz:
As soon as they were sworn, Mr. Justice Foster gave a most learned and judicious charge, taking notice among other things, that this commission, though it did not extend to all the crimes which are cognizable under the general commissions which are executed in the common circuits; yet it did not differ from other commissions granted for holding the assizes, so that they must proceed on this commission in the same method of trial as was usually done in commissions of assizes; that this commission was only to enquire of murders, manslaughters and felonies committed in the county of Sussex, and the accessaries thereto, and therefore the Grand Jury could not take notice of anything else but what was specified in the said commission.
Then his lordship was pleased to say, that the several murders and other crimes, committed by armed persons gathered together contrary to all law, in this and the neighbouring counties, loudly demanded the justice of the nation; and for that reason his Majesty
had been pleased to entrust his lordship and brethren with his special commission, that public justice might be done upon the offenders against the public laws of the kingdom, and that the innocent might be released from their confinement.
His lordship likewise took notice of the dangerous confederacies that had been formed for many years past in Sussex and its neighbouring counties, for very unwarrantable and very wicked purposes; even for robbing the public of that revenue which is absolutely necessary to its support, and for defeating the fair trader in his just expectations of profit; and which, without mentioning more, are the necessary unavoidable consequences of that practice which now goes under the name of smuggling; and this, his lordship said, was not all, for this wicked practice had been supported by an armed force; and acting in open daylight, in defiance of all the law, to the terror of his Majesty’s peaceable subjects; and had gone so far in some late instances, as deliberate murders, attended with circumstances of great aggravation, in consequence of those unlawful combinations.
His lordship likewise said, that in case of a murder, wherever it appeared that the fact was committed with any degree of deliberation, and especially where attended with circumstances of cruelty, the usual distinction between murder and manslaughter could never take place; for the fact is, in the eye of the law, wilful murder, of malice prepense; and involves every person concerned, as well those aiding and abetting as those who actually commit the fact, in the same degree of guilt.
His lordship was pleased further to take notice, that where a number of people engage together with a
felonious design, every person so engaged, and present aiding and abetting in the fact, is considered 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 and encouragement to all the rest; so that consequently the fact is considered, in the eye of the law, and of sound reason too, as the act of the whole party, though it be perpetrated by the hands only of one; for he is considered 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 as would make him an eye or ear witness of what passes. For an accomplice may be involved in the guilt of the rest, though 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 surprise, 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 the law, be involved in the guilt of murder, when possibly his heart abhorred the thoughts of it. For if numbers of people assemble in prosecution of an 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. 1 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 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 the 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 further 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 on this occasion I thought it not improper to enlarge on some points, that people may see 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 short of that crime.”
His lordship having ended his charge, two bills of indictment were presented to the grand jury, one for the murder of William Galley, sen., a custom-house officer in the port of Southampton, and the other for the murder of Daniel Chater, of Fordingbridge, in the county of Hants, shoemaker; when, as soon as the
grand jury had received the bills, they withdrew to the council chamber in the North Street; and the following I KM sons were sworn to give evidence before them, who immediately after their being severally sworn in court, went and attended the grand jury, viz., William Steel, alias Hardware, and John Race, alias Raise (two accomplices in the said murders), Mr. Milner, collector of the customs at the port of Poole; Mr. Shearer, collector of the customs at the port of Southampton; William Galley, son of the deceased William Galley; Edward Holton, George Austin, Thomas Austin, Robert Jenkes, Joseph Southern, William Garrat, William Lamb, Richard Kent, Ann Pescod, William Scardefield, Edward Soanes, Mrs. Chater, the widow of the deceased Daniel Chater, John Greentree, George Poate and Mr. Brackstone. And then the court adjourned until nine o’clock the next morning.