MISCELLANIES AND POEMS BY HENRY FIELDING, ESQ MISCELLANIES AND POEMS. BY HENEY MELDING, ESQ EDITED, WITH PREFACE, BY JAMES P. BROWNE, M.D. LONDON: BICKERS and SON, 1, LEICESTER SQUARE, H. S OTHER AN and CO., 136, STRAND. LITTLE, BROWN and CO., BOSTON, U.S. / * 7 v M.DCCC.LXXII. K LONDON PRINTED BY HEAD, HOLE & CO., HARP ALLEY, FAUKINGDON STREET, AND IV ¥ LANE, E.C. Q . ^ i *\> CONTENTS. Liter's Preface v — xxvi clear State of the Case of Elizabeth Canning, who hath sworn that she was Eobbed and almost Starved to Death by a Gang of Gipsies and other Villains in January last, for which one Mary Squires now lies under Sentence of Death . . 1 — 43 A true State of the Case of Boscavern Penlez, who suffered on account of the late Eiot in the Strand, in which the Law regarding these Offences, and the Statute of George L, commonly called the Eiot Act, are fully considered . . . . . . 44 — 82 Preface by Fielding to the Original Edition of his Miscellanies and Poems in 1743 . 83 — 98 POEMS. Of True Greatness. An Epistle to the Eight Honourable George Dodington, Esq. . 99 — 410 Of Good-Nature. To his Grace the Duke of Eichmond 111—115 Liberty. To George Lyttleton, Esq. . . 116—120 To a Friend, on the Choice of a Wife . . 120—129 11 CONTENTS. To John Hayes, Esq. On the Mixed Passions of Man .... . 129—131 A Description of U n {alias New Hog's Norton), in Com. Hants. Written to a Young Lady in the year 1728 . . . 132, 133 'To the Right Honourable Sir Robert Wal- pole, 1730. " While at the helm of state you ride" ...... 134—136 Jo the Same. Anno 1731 .... 136 Written Extempore on a Halfpenny, which a Young Lady gave a Beggar, and the Author redeemed for Half-a-Crown . . 137, 138 The Beggar. A Song .... 138 An Epigram . . . . . . 139 The Question ...... 139 J n W ts at a Play . . . . 140 To Celia 140, 141 On a Lady, Coquetting with a very Silly Fellow 141 On the Same 142 Epitaph on Butler's Monument ... 142 Another. On a Wicked Fellow ... 142 Epigram on one who Invited many Gentle- men to a Small Dinner . . . . 143 A Sailor's Song 143, 144 Advice to the Nymphs of New S m . 145, 146 To Celia. Cupid called to Account . . 146 — 148 To the Same, on her Wishing to have a Lilliputian to Play with . . . . 148, 149 Similes/ To the Same 150 The Price. To the Same .... 150 Her Christian Name. To the Same . . 150 To the Same ; having blamed Mr. Gay for his Severity on the Sex . . . . 151 CONTENTS. ill An Epigram . . . . . 151 Another 151 To the Master of the Salisbury Assembly. Occasioned by a Dispute whether the Com- pany should have fresh Candles . . 15 L The Cat and Fiddle. To the favourite Cat of a Fiddling Miser ..... 152 The Queen of Beauty 152—154 A Parody, from the First iEneid ... 155 A Simile from Silius Italicus . . . 155 To Euthalia . . . . . . 156 Part of Juvenal's Sixth Satire, modernized in Burlesque Verse V 157 — 199 To Miss H , and at Bath. Written ex- tempore in the Pump Room, 1742 . . 200 PREFACE. In this supplementary volume of the works of Fielding will be found the 4 Case of Elizabeth Canning,' as stated by the great novelist himself, in vindication of his conduct, as a magistrate, in that very mysterious affair. Its purpose is to refute the harsh animadversions of some respectable writers, who viewed the merits of the transaction through a medium, which imparted to that strange and appalling picture of human conduct a form and complexion very different from the impression which it had made upon himself, after he had investi- gated the matter with scrupulous attention, and the sagacity of an accomplished criminal lawyer. That it is a triumphant vindication no one who will read it with attention can help admitting ; although the poor young creature's narrative is fraught with incidents that border closely upon the precincts of improbability. But these doubtful points are conclusively disposed of, after being put forward in the most effective manner by the author himself. He there appears as a pleader of great acute- ness and rare logical discrimination. To this case is now, for the first time, added that of Bosavern Penlez, who was hanged for a robbery in one of the three houses which were sacked by a mob during the ' Strand Riots ' in 1749. b VI PREFACE. On this occasion, also, the magisterial conduct of Fielding was severely animadverted on, and the govern- ment accused of having acted contrary to the spirit of the constitution. But here, likewise, he fairly exone- rated his judicial character from all blame; while, at the same time, he showed that the Government had not infringed the barriers of constitutional law, as it then existed. In a moral point of view the case of Penlez falls far short of that of Canning, in regard to the story ; for it consists, in a great measure, of statements as to Acts of Parliament respecting riots, from the outbreak of Wat Tyler, in Richard II. 's reign, to the Riot Act of George I. ; and of affidavits in evidence of those Strand Riots of 1849, and of the guilt of Penlez. But still it is interesting to the admirers of the greatest of English novelists, as a record of the fact, that the committal of the accused, on that occasion, was not an unhumane overstraining of the law ; for he proves, by the sworn testimony of trustworthy witnesses, that Penlez was guilty of burglary, and as that crime was then deemed capital felony, there was no other alternative left him but that which he pursued. Here it is a consolation to know that we live in a time when a wretched creature, whose theft may spring not from inherent roguery, but possibly from the poignant goad- ing of starvation and destitution of all kinds, cannot now be ' hanged by the neck until he is dead ' for stealing anything to the value of thirteen-pence. It was sworn, also, that Penlez was seen among the rioters in one of the sacked houses in the Strand, to whose owner be- PREFACE. vii longed the wearing apparel found in the possession of the unfortunate young man. But, supposing him to be only guilty of riot, Fielding shows that that was a crime which the early statutes he quotes looked upon as treason against the king ; and that, therefore, the passing of the Riot Act of George I. could not be considered uncon- stitutional. So bitter were the aspersions cast upon him on that occasion, that, in order to guard himself against the charge of being unjust or devoid of clemency, he ventures to assert that he felt that the 4 milk of human ' kindness ' formed a characteristic ingredient of his mental constitution ; and that this rendered it a painful necessity for him, while affirming the strict adherence of his conduct to the constitutional law of England, to call forth from its silent resting-place the name of the un- happy Penlez. And certainly no one can read his works, with discri- minating care, without feeling assured that good-nature was an essential and abundant element of the capacious mind of Harry Fielding. Thus it was his name was called, long after his death, by his old friend, David Garrick, when, upon receiving in its soiled and neglected garb the comedy of ' The Good-natured Man,' he ex- claimed, in tones of affectionate remembrance, c the lost 4 sheep is found ! This is Harry Fielding's comedy/ To show that Fielding was not presumptuous in arro- gating to himself the possession of a fair share of that quality which Shakespeare has so beautifully named, it may not be out of place here to quote a few lines from his Epistle on Good-nature, addressed to the good Duke 2 b vin PREFACE. of Richmond, who knew his character well, and must have known that the sentiments expressed therein were the genuine effusion of his kindly heart. In that poem he says, in answer to the question, What is good- nature ? — And ' Is it not virtue's self ? A flower so fine, ' It only grows in soils almost divine.' again — ' What by this name, then, shall be understood ? ' What but the glorious lust of doing good ? ' And again — ' ! great Humanity, whose beams benign, ' Like the sun's rays, on just and unjust shine ; ' Content what Nature lavishes admire, ' Nor what is wanting in each piece require ; ' Where much is right, some blemishes afford, ' Nor look for Ch d * in every Lord/ Here is clemency, that benign attribute of Good-nature, recommended as a safeguard against undue captious- ness in judging of any one's character. And as a satirist Fielding was, all through life, careful in fol- lowing the charitable injunction which he has thus poetically and enthusiastically enjoined. For instance, while alluding, in the preface to his Miscellanies, to his 4 History of Jonathan Wild the Great/ as he calls him, he says that Roguery, and not a Eogue, is his subject ; and that, in drawing the portrait of that detes- table character, he had not used any particular indi- vidual as his model; but, on the contrary, had with his 'utmost art avoided it/ But yet he concludes * Chesterfield. PREFACE. IX with the following pungent sarcasm upon vicious and unfeeling persons : — ' . . .So will any such application be unfair to my reader, espe- 1 cially if he knows much of the great world, since he must then be i acquainted, I believe, with more than one upon whom he can fix the 1 resemblance.' So far, indeed, was he from bitterly subjecting his enemies to personal reproaches, that he was never reluctant in awarding them their just meed of praise; as he did, for instance, in regard to his distinguished rival Richardson. Though the insertion of the very singular and in- teresting story of Elizabeth Canning, and that of Bosavern Penlez, never before printed in any col- lected edition of Fielding's writings, is a considerable enhancement of the value of this edition, yet it would not be in accordance with the strongly expressed wishes of his readers were we to exclude those poems of his which are contained in the first volume of his Miscel- lanies, published by Miller in 1743. With regard to the poetic phase of Fielding's genius, it will be allowed by all, who are instinctively affected by the charms of poetry, and are familiar with his works, that his mind was imbued with a fine sense of the beautiful, which is the essential ingredient without which the spirit of poetry cannot exist. That this spirit of poetry doth not always need the aid of verse for its exhibition, and that Fielding was endow ed by natural instinct with an ample share of it, are facts which are admirably exemplified in the following glowing passage from ' Tom Jones,' which announces the first approach of the charming Sophia Western : — x PREFACE. ' Hushed be every ruder breath. May the heathen ruler of the winds ' confine in iron chains the boisterous limbs of noisy Boreas, and the sharp- ' pointed nose of bitter — biting Eurus. Do thou, sweet Zephyrus, rising 1 from thy fragrant bed, mount the western sky, and lead on those deli- ' cious gales, the charms of which call forth the lovely Flora from her 1 chamber, perfumed with pearly dews, when on the first of June, her ' birth-day, the blooming maid, in loose attire, gently trips it o'er the 1 verdant mead, where every flower rises to do her homage, till the whole ' field becomes enamelled, and colours contrast with sweets which shall 'ravish her most. ' So charming may she now appear ! and you, the feathered choristers of 'nature, whose sweetest notes not even Handel can excel, tune your ' melodious throats to celebrate her appearance. From love proceeds your ' music, and to love it returns. Awaken, therefore, that gentle passion in ' every swain : for lo ! adorned with all the charms with which nature can i array her ; bedecked with beauty, youth, sprightliness, innocence, 'modesty, and tenderness, breathing sweetness from her rosy lips, and ' darting brightness from her sparkling eyes, the lovely Sophia comes.' And her mind he says, ' Was every way equal to her person ; nay, the latter borrowed some ' charms from the former ; for when she smiled, the sweetness of her ' temper diffused that glory over her countenance which no regularity ' of features can give.' But though this delightful element of his genius served to augment the ardour of his affections, and the uncommon gracefulness of his style, yet it was not of force enough to become the leading feature of his mind. Of this he seems to have felt conscious himself; for he owns in his Preface to the Miscellanies that poetry was a branch of writing which he very little pretended to, and but little pursued. It should be observed, also, in forming an estimate of his poetical ability, that most of these poems were written when he was very young, and which he himself estimated as ' productions rather of the heart than of the head/ PREFACE. xi This last fact would of itself be sufficient to account for that want of polish which led Arthur Murphy to exclude these poems from his edition of the works of Fielding; with the exception of a short epistle to the great Whig minister, Sir Robert Walpole, which is char- acteristic of the easy playfulness of his wit and humour. Yet it was, obviously, not for any special superiority in itself that this poem was selected, but only as a specimen of the author's quality as a poet ; and, perhaps, his biographer, and able critical admirer, was desirous of placing on an imperishable record an instance of the cold neglect shown by a man, possessed of great poli- tical power, towards a distressed man of genius, whose talents were devoted to the strengthening of the cause which that renowned statesman himself had espoused and vigorously supported. These verses consist of allu- sions to the writer's hard fortune, conveyed in a humor- ous and playful strain of irony; in which, nevertheless, the lightsome gaiety of the head cannot completely conceal the gloomy sadness of the heart; and which could hardly fail to strike home to the discerning mind of the great man, as a gentle reminder of his neglect of a strenuous and faithful political ally. But the insertion of these poems in a complete edition of Fielding's writings is the strongly expressed desire of the purchasers of the fine edition, in ten volumes, octavo, lately issued to the public from the houses of Bickers and Son, and of Sotheran and Company, in London, and from that of Little Brown, of Boston, U.S. The propriety of gratifying this wish is greatly enhanced by the fact, that these poems evince the prominent Xll PREFACE. characteristics of Fielding's disposition ; namely, his ardent love of liberty, when that blessing is attended with the graceful and benevolent qualities of human nature, his superior knowledge of those qualities, and the unselfish and cordial warmth of his gratitude, his friendship, and his love. In these poems will also be found, in a concentrated form, the lively versatility of his imagination, the searching spirit of his pungent but not ill-natured satire, and the playful brilliancy of his wit and humour. The first, in order, of these poems is his Epistle on True Greatness, in which he strenuously denies to the commander of conquering hosts the possession of that virtue, when his exploits are solely the result of un- hallowed thirst for the acquisition of personal power and glory ; irrespective of the misery which the demon of warfare inflicts upon mankind. And after drawing a vivid picture of this misery in a few lines, he exclaims, addressing Alexander the Great — 1 Could such exploits as these thy pride create ? ' Gould these, Philip's son, proclaim thee Great ? ' And, in alluding to the ferocious devourer of the shepherd's gentle flock, the wolf, he thus contemptuously shows his low estimate of such greatness, in these lines — ' If Greatness by these means may be possess'd, ' 111 we deny it to the greater beast. ' Single, and armed by Nature only, he * That mischief does, which thousands do for thee.' But war, and even very destructive war, when raised and carried on in the cause of humanity and freedom, PREFACE. Xill well entitles, in our author's mind, the successful con- ductor of it to the epithet — Great, as the following lines clearly show : — ' Not on such wings to fame did Churchill soar, ' For Europe while defensive arms he bore, ' Whose conquests, cheap at all the blood they cost, ' Saved millions by each noble life they lost.' To the snarling cynic in his tub he says:- — ' Well might the haughty son of Philip see ' Ambition's second lot devolve on thee ; ' Whose breast pride fires with scarce inferior joy, ' And bids thee hate and shun men, him destroy.' The self-satisfied superiority of the pedant of some college, in his closet, he calls false greatness, with an awkward mien. For, though — ' Tully to him, and Seneca, are known, ' And all their noblest sentiments his own. ' These on each apt occasion he can quote ; \ ' Thus the false Count affects the man of note, I ' Awkward and shapeless in a borrowed coat.' J To this category he also names critics, and says — ' Critics through books, as beaus through countries stray, ' Certain to bring their blemishes away. ' Great is the man who, with unwearied toil, ' Spies a weed springing in the richest soil. ' If Dryden's page with one bad line be bless'd, 1 'Tis great to shew it as to write the rest.' Commentators, unlike critics, he says, seek to find out the beauties of great writers, and cling to their authors : — ' Close as to some tall tree the insect cleaves, ' Myriads still nourished by its smallest leaves. ' 80 cling these scribblers round a Virgil's name, ' And on its least of beauties soar to fame.' XIV PREFACE. After showing that in every profession men find a 4 corner to be great.' Even — ' The lowest lawyer, parson, courtier, squire, ' Is somewhere great, finds some that will admire/ He asks- ' Where shall we say then that true greatness dwells ? ' In palaces of kings or hermit's cells ? ' Doth she confirm the minister's mock state, ' Or bloody on the victor's garland wait ? ' "Warbles harmonious in the poet's song, 1 Or, graver, laws pronounces to the throng ? ' And then exclaims — ' To no profession, party, place confined, ' True greatness lives but in the noble mind ; 1 Greatness with learning decked in Carteret see, 'With justice and with clemency in Lee ; ' In Chesterfield to ripe perfection come, ' See it in Littleton beyond its bloom.' Allusion has already been incidentally made to his Epistle on Good-nature. The next in order is that on Liberty, addressed to his faithful friend, George Lyttle- ton, Esq., afterwards Lord Lyttleton; 'whom/ he says — ' Nature vied with fortune to adorn ! 'Brave, tho' no soldier; without titles, great; ' Feared, without power ; and envied, without state.' And adds, with genuine modesty — ' Accept the muse whom truth inspires to sing, ' Who soars, though weakly, on an honest wing.' He then invokes Liberty, the bright goddess, thus — ' Come then, bright maid, my glowing breast inspire ; ' Breathe in my lines, and kindle all my fire.' PREFACE. XV And exclaims — ' Curse on all laws which liberty subdue, ' And make the many wretched to the few. ' Presumptuous power assumes the public voice, ' And what it makes our fate, pretends our choice.' But of those, whose power was ennobled by true humanity, he says: — ' O'er abject slaves they scorned inglorious sway, ' But taught the grateful freedman to obey ; ' And thus by giving liberty, enjoyed 4 What the first hoped from liberty destroyed.' Again- The people power, to keep their freedom, gave, And he who had it was the only slave.' And then he thus patriotically addresses Liberty: — ' Thy sacred name no Eomans now adore, ' And Greece attends thy glorious call no more. 1 To thy Britannia, then, thy fire transfer, ' Give all thy virtue, all thy force to her.' And, after a beautiful allusion to the industry of the Bee, he exclaims: — ' But thou, great Liberty, keep Britain free, ' Nor let man use us as we use the bee ; ' Let not base drones upon our honey thrive ; ' And suffocate the maker in his hive.' In his Epistle on the Choice of a Wife he gives valuable advice, which evinces his thorough knowledge of the various affections of human nature; and his statement of the unhappy results of ill-chosen marriages shows the keenness and accuracy of his faculties of XVI PEE FACE. observation. His strictures, too, upon the improper mode of rearing daughters at that time, should act as a salutary warning to mothers who attend too much upon the superficial graces of the body, to the neglect of the moral and intellectual accomplishments of the mind. The result of this culpable oversight he thus describes: — ' The face and shape are first the mother's care ; ' The dancing-master next improves the air ; ' To these perfections add a voice most sweet ; ' The skilled musician makes the nymph complete. ' Thus with a person well equipped, her mind ] ' Left, as when first created, rude and blind, \ ' She's sent to make her conquests on mankind.' J But, amongst the desirable qualities of his friend's wife, he says — ' Her tender soul good-nature must adorn, * And vice and meanness be alone her scorn.' The short Epistle to John Hayes, Esq., is written in the spirit of one well versed in the diversified characters of the human mind. In this he ridicules Codrus for — ' Confining all his knowledge, and his art, ( To this, that each man is corrupt at heart.' And adds — ' Had Nature actions to one source confined, * Ev'n blund'ring Codrus might have known mankind;' But he shows that individuals do as much differ from themselves, at times, as they differ from one another. And that, moreover, their motives to action are as various as the colours upon the pallet of Titian ; and, when peculiarly blended, form pictures of human nature by this great artist of the mental passions as distinct as PREFACE. XVil those which adorn the glowing canvas of the renowned Venetian painter. And towards the end he says : — ' Men what they are not struggle to appear, ' And Nature strives to show them as they are. * For though with Quin's or Garrick's matchless art, ' He acts, my friend, he only acts a part : ' For Quin himself, in a few moments more, 'Is Quin again, who Oato was before.' He then concludes with this satiric stroke : — * Thus while the courtier acts the patriot's part, ' This guides his face and tongue, and that his heart. * Abroad the patriot shines with artful mien, * The naked courtier glares behind the scene. ' What wonder if to-morrow then he grow ' A courtier good, who is a patriot now.' Those quotations afford instructive testimony that the spirit of true philosophy formed a copious ingredient of Fielding's genius. And he possessed that spirit, because the rare perspicuousness of his intellect was illumined, in a superior measure, by the sentiments of justice and mercy ; in the absence of an adequate share of which a man of the most exalted intellectual capacity will be wanting in wisdom. But though a man may think wisely, and admonish with sagacity, he yet may not be always capable of acting prudently. And such, certainly, was the case with Fielding in the early period of his career. But this arose from the enthusiastic ardour of his social affections, which urged him to share in the cordial pleasures of society, where the shining qualities of his admirable wit and humour could not fail to make him a conspicuous ornament. His carelessness, too, in regard to money, and his kindly and liberal tendencies, were calculated to render the promptings of frugality XVlll PREFACE. nugatory, even supposing such salutary warnings to have arisen ; and thus was he compelled to crave the aid of men in power, who lay under obligations to him for his political writings. And what was his reward, after wasting disappoint- ments ? The then not very reputable post of Middlesex magistrate at Bow Street. But, to his credit be it told, the corrupt practices which disgraced that important though subordinate seat of criminal justice were swept away by his judicious and indefatigable management, and from being a nest rather for the nursing care of some delinquents than for their utter extermination, it became in his hands the dread of incorrigible evil-doers ; while the weary and heavy-laden met with compassionate con- sideration. Of these facts there is no one but must feel assured who has read what may be called his dying words, which are so impressively told in his ; Voyage to Lisbon ' — his last resting-place. To these disappointments must be ascribed the bitter- ness of feeling which sometimes pervades the verses of this warm-hearted and benevolent man. One of his poems, addressed to Celia, is a striking instance of the misanthropic spirit which, seemingly at least, had at that time taken hold of his mind. The poem begins thus — ' I hate the town and all its ways ; ' and, after a detailed enumeration of the objects of his detestation, he cries out — * I hate the world, cramm'd all together, ' From beggars, up to Lord knows whither.' PREFACE. XIX And then concludes with the following ardent and ingenious expression of his love : — ' Ask you then, Celia, if there be ' The thing I love ? My charmer, thee. ' Thee more than light, than life adore, ' Thou dearest, sweetest creature, more ' Than wildest raptures can express ; * Than I can tell, — or thou canst guess. ' Then, tho' I bear a gentle mind, 1 Let not my hatred of mankind ' Wonder within my Celia move, ' Since she possesses all my love.' The chagrin of his wounded and disappointed spirit is also evinced, in an affecting way, in his brief epitaph on Butler's monument — Butler, the ill-requited author of the immortal Hudibras: — ' What,' he exclaims, ' though alive neglected and undone, ' let thy spirit triumph in this stone. ' No greater honour could men pay thy parts, ' For when they give a stone they give their hearts. ' In the poems addressed to Celia is strikingly mani- fested the enthusiastic ardour of his admiration and his love of that incomparable impersonator of all the graces and virtues which enhance the charms of con- summate female beauty. And in them is also shown the playful fertility of a fancy, akin to some of our most admired early poets. Of this the one to Celia, 4 Occasioned by her apprehending her house would be 4 broke open, and having an old fellow to guard it, who 4 sat up all night, with a gun without any ammunition,' is an example. His anxiety for her safety on that occasion caused him to dream that Cupid was called to account by his mother, for having suffered, by his XX PREFACE. absence, the fear of danger to disturb the rest of her choicest earthly representative— her own ' loved citadel 4 of beauty./ And, after severely reprimanding her mis- chievous child, she thus concludes: — * " Come, tell me, urchin, tell no lies ; 1 " Where was you hid — in Vince's eyes ? ' " Did you fair Bennet's breast importune ? ' " (I know you dearly love a fortune.) " ' Poor Cupid now began to whine ; ' " Mamma, it was no fault of mine. '"I in a dimple lay perdue, 1 tl That little guard-room chose by you. ' " A hundred Loves (all armed) did grace ' " The beauties of her neck and face ; ' " Thence, by a sigh I, dispossess'd, ' " Was blown to Harry Fielding's breast ; ' " Where I was forced all night to stay, ' " Because I could not find my way. ' " But did mamma know there what work ' " I've made, how acted like a Turk ; ' " What pains, what torments he endures, ' " Which no physician ever cures, 1 " She would forgive." The goddess smil'd, ' And gently chuck'd her wicked child ; ' Bid him go back, and take more care, f L And give her service to the fair.' But there is yet another poem in which the charms of the same matchless fair one are set forth in a strain still more inventive, versatile, and brilliant. In this is described the command of the Queen of Beauty to have the most charming woman of each of her subject lands send up a petition, with a view to her being appointed the Queen's vice-regent, while the latter is easing herself of her cares in temporary retirement. In obedience to this order from the celestial council petitions from PREFACE. xxi all quarters of the world are being presented, when those from New Sarum are loudly called for by the crier : — ' When lo, in bright celestial state , 'Jove came and thundered at the gate. ' " And can you, daughter, doubt to whom ' (He cried) " belongs the happy doom, ' " While cks yet make blest the earth, ' " cks, whom long before their birth, ' " I, by your own petition moved, 1 " Decreed to be by all beloved ? ' " cks, to whose celestial dower * " I gave all beauties in my power, ' " To form whose lovely minds and faces, ' li I stripp'd half heaven of its graces ! ' " let them bear an equal sway ' " So shall mankind well pleased obey." ' Subsequent to the writing of this poem, Fielding married Charlotte Cradock, one of those incomparable sisters: and though she was possessed of some fortune, a thing which he was much in want of, yet it is obvious that his marriage was the result of enthusiastic admira- tion and love: for it is to the attractive graces and exalted moral qualities of this inestimable woman we owe the character of Amelia, which is so charmingly and touchingly delineated in his novel of that name — a character which, he somewhere says, in a sorrowful tone, ' No one who had known my Charlotte could look 4 upon as overdrawn,' or words to that effect, for I quote from memory. His verses to the same charming woman, on her wishing to have a Lilliputian to play with, are charac- terized by happy playfulness of fancy, and some jocund satiric allusions. XXll PREFACE. It thus begins — ' Is there a man who would not be, * My Celia, what is prized by thee ? ' A monkey beau to please thy sight ' Would wish to be a monkey quite. ' Or (could'st thou be delighted so) ' Each man of sense would be a beau. ' Courtiers would quit their faithless skill, 1 To be thy faithful dog Quadrille. ' P — It — y, who does for freedom rage, ' Would sing confin'd within thy cage ; ' And W — Ip — le, for a tender pat, ' Would leave his place to be thy cat. ' ]\£ay I, to please my lovely dame, i/ Be five foot shorter than I am ; ' And, to be greater in her eyes, ' Be sunk to Lilliputian size. ' While on thy hand I skipp'd the dance, ' How I'd despise the King of France!' Exceedingly pleasing, also, are his lines, written extempore, on a Half-penny which a young lady gave a beggar, and the author redeemed for Half-a-Crown. A trifling fact, which, in itself, is highly characteristic of his affectionate and generous nature. Among some other smaller pieces the first volume of. his Miscellanies contains 4 Part of Juvenal's Sixth Satire 4 Modernised in Burlesque Verse/ But, as that satire was written by the great Eoman satirist to hold forth to ridicule and detestation those women of his time who were steeped in the mire of shameless and faithless sensuality, he thought it necessary to use language, too indelicate and coarse for chaste ears, but still, no doubt, suited to the loose manners of the time. It was the excessive grossness of this immodesty in the latter PREFACE. XXlll portion of it, which induced Fielding to abstain from translating that part of it ; for he says — ' We shall here close our translation of this satire ; for as the remainder ' is in many places too obscene for chaste ears ; so, to the honour of the ' English ladies, the Latin is by no means applicable to them, nor indeed ' capable of being modernised.' And much to his credit he further says — ' For my part I am much more inclined to panegyric on that amiable ', sex, which I have always thought treated with a very unjust severity by ' ours, who censure them for faults (if they are truly such) into which we ' allure and betray them.' It was, no doubt, to those very objectionable passages that Byron alludes in ' Don Juan,' when he says — ' I can't help thinking Juvenal was wrong, ' Although, no doubt, his real intent was good, ' For speaking out so plainly in his song, ' So much, indeed, as to be downright rude.* But, notwithstanding the exclusion of this very objec- tionable part, there is still to be found in the portion translated allusions so indelicate as to render its perusal quite unsuited to the taste and principles of refined and modest females, in this age of superior civilization; although, in the age of ruder manners in which Fielding lived, such narratives seem to have been tolerated, with- out a feeling of disgust, even by persons who were free from the slightest taint of impurity either of thought or conduct. A striking instance of this occurred in the person of a grand-aunt of Sir Walter Scott, who in her old age requested him to procure her a copy of Mrs. Aphra Behn's novels, which, she said, were in XXIV PREFACE. her youthful days much admired, and which, from the interest she then felt in them herself, she wished to read over again. 1 So,' says Sir Walter, ' I sent Mrs. Aphra Behn curiously sealed up, 'with "private and confidential" on the packet, to my gay old grand- ' aunt. The next time I saw her afterwards she gave me back Aphra, ' properly wrapped up, with nearly these words, — " Take back your bonny ' " Mrs. Behn, and if you will take my advice, put her in the fire : for I find ' " it impossible to get through the very first novel. But is it not," she ' said, " a very odd thing that I, an old woman of eighty and upwards, ' " sitting alone, feel myself ashamed to read a book which sixty years ago * " I have heard read aloud for the amusement of large circles, consisting ' " of the first and most creditable society in London ? " But, as it is the settled and general desire of the admirers of Fielding's great genius that nothing which he is known to have written should be lost, the publishers feel bound to comply with that desire, because, otherwise, their promise of issuing a complete edition of his writings would remain unfulfilled. Yet, were it possible to avoid this necessity, it would be (and with unfeigned sincerity be it said) the editor's wish to see that such objectionable allusions should find no place in these poems of Fielding, 'although no doubt his real intent was good;' as he wished, by means of rigorous and pointed satiric humour, to expose to shame the miserable results of ill-assorted marriages, and thus serve to extirpate the unhallowed profligacy of which they are, unhappily, so often the incentives, and with the view of bringing society to a condition more blissful and contented. And certainly his affectionate conduct, both as a husband and a father, proved the sincerity of his satiric exposure of the frivolity and profligacy of fashionable life in his time. PREFACE. xxv In conclusion, it is right to observe that, notwithstand- ing the few quotations which have been made from the Preface to the Miscellanies, and which appear in the Pre- face to Fielding's works in ten volumes, octavo, to which this one is supplementary, still in a complete edition of his writings, the insertion here of the whole of that excellent composition is desirable, especially in as far as it regards the ' History of Jonathan Wild the Great;' for there is given the author's notions of the kind of great- ness which should attract the heartfelt homage of the virtuous and the good ; as well as his enlightened views of human nature, and of mankind's truest — indeed his only true road to happiness. For he says : — 'I solemnly protest I do by no means intend in the character of my * hero (Wild) to represent human nature in general I understand ' those writers who describe human nature in this depraved character, as ' speaking only of such persons as Wild and his gang ; and I think it may ' be justly inferred that they do not find in their own bosoms any devia- ' tion from the general rule. Indeed, it would be an insufferable vanity 'in them to conceive themselves as the only exception to it.' How well applied is this adroit and cutting sarcasm to those philosophers who read human nature through the deceptive medium of the i Idols of the Den ;' for, as Lord Bacon avers — ' There is no small difference between the idols of the human mind ' and the ideas of the divine mind — that is to say, between certain idle * dogmas and the real stamp and impress of created objects, as they are ' found in nature.' And how admirable are his views with respect to man's capacity for the attainment of happiness, and of the surest, and at the same time easiest, manner of ob- taining that blessing : and in quoting them here, I feel a xxyi PREFACE. pride in closing this humble preface of mine with a passage that exhibits, in a charming way, the instinctive wisdom and glowing good-nature of 'the manly, the English Harry Fielding/ as Thackeray emphatically calls him : — ' Nothing seems to me/ he writes, ' more preposterous than that, while ' the way to true honour lies open and plain, men should 'seek false by * such perverse and rugged paths ; that while it is so easy and safe, and ' truly honourable to be good, men should wade through difficulty and * danger, and real infamy, to be great, or, to use a synonymous word, ' villains. ' Nor hath goodness less advantage in the article of pleasure, than of 'honour over this kind of greatness. The same righteous Judge ' always annexes a bitter anxiety to the purchases of guilt, whilst it adds ' a double sweetness to the enjoyments of innocence and virtue : for fear, ' which all the wise agree is the most wretched of human evils, is, in 'some degree, always attending on the former, and never can in any ' manner molest the happiness of the latter.' JAMES P. BROWNE, M.D. February, 1872. THE CASE ELIZABETH CANNING. CLEAE STATE OF THE CASE ELIZABETH CANNING. Who hath sworn that she was Robbed and almost Starved to Death by a gang of Gipsies and other villains in January last, for which one Mary Squires now lies under Sentence of Death. Qiifs, quia sunt admirabilia, contraque Opinionem omnium; tentare volui possentne proferri in Lucem, <£■ ita did ut probarentur. Cicero, Parad. HENRY FIELDING, Esq. THE CASE ELIZABETH CANNING There is nothing more admirable, nor, indeed, more amiable, in the Law of England, than the extreme tender- ness with which it proceeds against persons accused of capital crimes. In this respect it justly claims a prefer- ence to the institutions of all other countries; in some of which a criminal is hurried to execution, with rather less ceremony than is required by our law to carry him to prison ; in many, the trials (if they may be called such) have little of form, and are so extremely precipitate that the unhappy wretch hath no time to make his defence, but is often condemned without well knowing his accuser, and sometimes without well understanding his accusa- tion. In this happy kingdom, on the contrary, so tender is the law of the life of a subject, so cautious of unjustly or erroneously condemning him, that, according to its own maxim, De Morte Hominis nulla est Cunctatio longa, it 4 THE CASE OF proceeds by slow and regular gradations, and requires so many antecedent ceremonies to the ultimate discussion of a court of justice, that so far from being in danger of a condemnation without a fair and open trial, every man must be tried more than once, before he can receive a capital sentence. By the law of England, no man can be apprehended for felony, without a strong and just suspicion of his guilt; nor can he be committed to prison, without a charge on oath before a lawful magistrate. This charge must be again proved on oath, to the satis- faction of a large number (twelve at least) of the better sort of his countrymen (except in the case of an Appeal of Felony, which is now obsolete, and where the proceedings are still more ceremonial and tedious) ; before the accused can be required to answer to it, or be put on his defence ; and after all these preparatives, the truth of this charge is to be tried in an open court of justice, before one at least and often many judges, by twelve indifferent and unexceptionable men : I may truly say unexceptionable, since it is in the prisoner's power to except against twenty- four without showing any cause, and as many more as he can show a reasonable cause of exception against. These, after a patient hearing of the witnesses against him, and after attending to his defence (in the making which, the law prescribes that every indulgence shall be shown him, and that even his judge shall be his counsel and assist him) must all concur in declaring on their oaths, that he is guilty of the crime alleged against him, or he is to be discharged, and can never more be called in question for the same offence, save only in the case of murder. It seems, I think, that the wit of man could invent no stronger bulwark against all injustice and false accusa- tion than this institution, under which not only innocence may rejoice in its own security, but even guilt can scarce ELIZABETH CANNING. 5 be so immodest as to require a fairer chance of escaping the punishment it deserves. And yet, if after all this precaution it should manifestly appear that a person hath been unjustly condemned, either by bringing to light some latent circumstance, or by discovering that the witnesses against him are cer- tainly perjured, or by any other means of displaying the party's innocence, the gates of mercy are still left open, and upon a proper and decent application, either to the judge before whom the trial was had, or to the Privy Council, the condemned person will be sure of obtaining a pardon, of preserving his life, and of re- gaining both his liberty and reputation. To make, therefore, such an application on the behalf of injured innocence is not only laudable in every man, but it is a duty, the neglect of which he can by no means answer to his own conscience ; but this, as I have said, is to be done in a proper and decent manner, by a private application to those with whom the law hath lodged a power of correcting its errors and remitting its severity; whereas to resort immediately to the public by inflam- matory libels against the justice of the nation, to establish a kind of Court of Appeal from this justice in the book- seller's shop, to re-examine in newspapers and pamph- lets the merits of causes which, after a fair and legal trial, have already received the solemn determination of a Court of Judicature, to arraign the conduct of magis- trates, of juries, and even judges, and this even with the most profligate indecency, are the effects of a licentious- ness to which no government, jealous of its own honour, or indeed provident of its own safety, will ever indulge or submit to. Sensible as I am of this, I should by no means become an aggressor of this kind ; but surely when such methods have been used to mislead the public, and to censure the 6 THE CASE OF justice of the nation in its sagacity at least, and grossly to misrepresent their proceedings, it can require little apology to make use of the same means to refute so iniquitous an attempt. However unlawful a weapon may be in the hands of an assailant, it becomes strictly justifiable in those of the defendant : and as the judges will certainly excuse an undertaking in defence of them- selves, so may I expect that the Public (that part of it, I mean, whose esteem alone I have ever coveted or desired) should show some favour to a design which hath in view not a bare satisfaction of their curiosity only, but to prevent them from forming a very rash, and, possibly, a very unjust judgment. Lastly, there is something within myself which rouses me to the protection of injured innocence, and which prompts me with the hopes of an applause much more valuable than that of the whole world. Without this last motive, indeed, it may be imagined I should scarce have taken up my pen in the defence of a poor little girl, whom the many have already condemned. I well know the extreme difficulty which will always be found in obtaining a reversal of such a judgment. Men who have applauded themselves, and have been applauded by others, for their great penetration and discernment, will struggle very hard before they will give up their title to such commendation. Though they, perhaps, heard the cause at first with the impartiality of upright judges, when they have once given their opinion, they are too apt to become warm advocates, and even interested parties in defence of that opinion. Deplorable, indeed, and desperate is the case of a poor wretch against whom such a sentence is passed ! No Writ of Error lies against this sentence, but before that tremendous Court of the Public where it was first pronounced, and no court whatever is, for the reasons ELIZABETH CANNING. i already assigned, so tenacious of the judgments which it hath once given. In defiance, nevertheless, of this difficulty, I am determined to proceed to disclose, as far as I am able, the true state of an affair, which, however inconsiderable the parties may be in their station of life (though injured innocence will never appear an inconsiderable object to a good mind), is now become a matter of real concern and great importance to the public ; against whom a most horrible imposture, supported by the most impudent as well as impious perjury is dressed up, either on the one side or on the other. To discover most manifestly on which side it lies seems to be within the power of the government, and it is highly incumbent on them to exert themselves on this occasion, in order that by the most exemplary punishment they may deter men from that dreadful crime of perjury, which, in this case, either threatens to make the sword of justice a terror to the innocent, or to take off all its edge from the guilty ; which of these is it likeliest to do in the present instance, I will endeavour to assist the reader, at least, in forming a probable conjecture. Elizabeth Canning, a young girl of eighteen years of age, who lived at Aldermanbury Postern, in the City of London, declares, That on Monday, the 1st of January last, she went to see her uncle and aunt, who are people of a very good character, and who live at Salt- petre Bank, near Rosemary Lane; that having continued with them till towards nine in the evening, her uncle and aunt, it being late, walked a great part of the way home with her; that soon after she parted with them, and came opposite to Bethlehem-gate in Moorjields, she was seized by two men who, after robbing her of half a guinea in gold, and three shillings in silver, of her hat, gown, and apron, violently dragged her into a 8 THE CASE OF gravel-walk that leads down to the gate of Bethlehem Hospital, about the middle of which one of the men, after threatening to do for her, gave her a violent blow with his fist on the right temple, that threw her into a fit, and entirely deprived her of her senses. These fits she says she hath been accustomed to ; that they were first occasioned by the fall of a ceiling on her head ; that they are apt to return upon her whenever she is frightened, and that they sometimes continue for six or seven hours ; that when she came to herself she per- ceived that two men were hurrying her along in a large road-way, and that in a little time after she was re- covered, she was able to walk alone ; however, they still continued to pull and drag her along; that she was so intimidated by their usage that she durst not call out, nor even speak to them; that in about half an hour after the recovery of her senses they carried her into an house where she saw in the kitchen an old Gipsy woman and two young women ; that the old Gipsy woman took hold of her by the hand, and pro- mised to give her fine clothes if she would go their wag, which expression she understanding to mean the be- coming a prostitute, she utterly refused to comply with; upon which the old Gipsy woman took a knife out of a drawer and cut the stays off this Elizabeth Canning, and took them away from her, at which time one of the men likewise took off her cap, and then both the men went away; that soon after they were gone, and about an hour after she had been in the house, the old Gipsy woman forced her up an old pair of stairs, and pushed her into a back room like a hay-loft, without any fur- niture whatsoever in the same, and there locked her up, threatening that if she made the least noise or disturbance, the old Gipsy woman would come up and cut her throat, and then fastened the door on the outside ELIZABETH CANNING. 9 and went away. She says, that when it was clay-light, upon her looking round to see in what dismal place she was confined, she discovered a large black jug, with the neck much broken, filled with water, and several pieces of bread, amounting to about the quantity of a quartern loaf, scattered on the floor, where was likewise a small parcel of hay. In this room, she says, she continued from that time till about half an hour after four of the clock in the afternoon of Monday, the 29th day of the same month of January, being in all twenty- seven days and upwards, without any other sustenance than the aforesaid bread and water, except one small mince-pie which she had in her pocket, which she was carrying home as a present to her little brother. She likewise says, that she had some part of this provision remaining on the Friday before she made her escape, which she did by breaking out at a window of the room or loft in which she was confined, and whence having escaped, she got back to her friends in London in about six hours, in a most weak and miserable condition, being almost starved to death, and without ever once stopping at any house or place by the way. She likewise says, that during her whole confinement no person ever came near her to ask her any question whatever, nor did she see any belonging to the house more than once, when one of the women peeped through a hole in the door, and that she herself was afraid to call or speak to anyone. All this she hath solemnly sworn before a magistrate and in a court of justice. Such is the narrative of Elizabeth Canning, and a very extraordinary narrative it is, consisting of many strange particulars resembling rather a wild dream than a real fact. First, it doth not well appear with what motive these men carried this poor girl such a length of way, or indeed that they had any motive at all for so doing. vol. x, c 10 THE CASE OF Secondly, that they should be able to do it is not easy to believe ; I do not mean that it is not within the strength of two men to carry a little girl (for so she is) ten miles, but that they could do this without being met, opposed, or examined by any persons in the much frequented roads near this town, is extremely strange and surprising. Thirdly, the Gipsy woman doth not seem to have had any sufficient motive to her proceed- ings. If her design was to make a prostitute, or a Gipsy, or both, of this poor girl, she would, in all probability, have applied to her during her confine- ment, to try what effect that confinement had pro- duced. If her design was murder, she had many easier and better ways than by starving, or if she had chosen this method of destroying the girl, it seems impossible to account for the conveying to her that bread and water, which would serve for no other purpose but to lengthen out the misery of a wretch against whom the Gipsy woman had, as appears, no foundation whatever of anger or revenge, and might have increased the danger of discovering the whole villainy. Fourthly, that Elizabeth Canning herself should have survived this usage, and all the terrors it must have occasioned, and should have been kept alive with no other sustenance than she declares she had, are facts very astonishing and almost incredible. Fifthly, that she should so well have husbanded her small pittance as to retain some of it till within two days of her escape, is another surprising circumstance. Sixthly, that she should undergo all this hardship and fasting without attempting sooner to make her escape, or without per- ceiving the possibility of making it in the manner in which she at last says she did effect it, seems to be no less shocking to reason and common sense, Lastly, that, at the time when she elates this escape, she ELIZABETH CANNING. 11 should have strength sufficient left, not only to break her prison in the manner she declares, but to walk eleven or twelve miles to her own home, is another fact which may very well stagger our belief, and is a proper close to this strange, unaccountable, and scarce credible story. Thus have I set the several particulars of this narrative in as strong a light against the relator, and in one as disadvantageous to the credibility of her relation, as I think they can fairly be placed. Certain it is, that the facts seem at first to amount to the very highest degree of improbability, but I think that they do not amount to an impossibility; for, as to those objec- tions which arise from the want of a sufficient motive in the transactors of this cruel scene, no great stress I think can be laid on these. I might ask what possible motive could induce two ruffians, who were executed last winter for murder, after they had robbed a poor wretch who made no resistance, to return and batter his skull with their clubs, till they fractured it in almost twenty different places. How many cruelties, indeed, do we daily hear of, to which it seems not easy to assign any other motive than barbarity itself? In serious and sorrowful truth, doth not history, as well as our own experience, afford us too great reasons to suspect, that there is in some minds a sensation directly opposite to that of benevolence, and which delights and feeds itself with acts of cruelty and inhumanity ? And if such a passion can be allowed any existence, where can we imagine it more likely to exist than among such people as these. Besides, though to a humane and truly sensible mind such actions appear to want an adequate motive, yet to wretches very little removed, either in their sensations or understandings, from wild beasts, there may possibly 12 THE CASE OF appear a very sufficient motive to all that they did ; such might be a desire of increasing the train of Gipsies, or of whores in the family of the mother Wells. One of these appear to have been the design of the Gipsy woman from the declaration of Elizabeth Canning, who, if she had said nothing more improbable, would cer- tainly have been entitled to our belief in this, though this design seems afterwards not to have been pursued. In short she might very possibly have left the alter- native, with some indifference, to the girl's own option ; if she was starved out of her virtue, the family might easily apprehend she would give them notice ; if out of her life, it would be then time enough to convey her dead body to some ditch or dunghill, where, when it was found, it would tell no tales : possibly, however, the indifference of the Gipsy woman was not so ab- solute, but that she might prefer the girl's going her way, and this will recount for her conveying to her that bread and water, which might give the poor girl a longer time to deliberate^ and consequently the love of life might have a better chance to prevail over the love of virtue. So much for the first and third objection arising from the want of motive, from which, as I observed above, no very powerful arguments can be drawn in the case of such wretches : as to the second objection, though I mentioned it as I would omit none, the reader, I presume, will lay so little weight upon it, that it would be wasting time to give it much answer. In reality, the darkness of the night at that season of the year, and when it was within two days of the new moon, with the indifference of most people to what doth not concern themselves, and the terror with which all honest persons pass by night through the roads near this town, will very sufficiently account for ELIZABETH CANNING. 13 the want of all interruption to these men in their conveyance of the poor girl. With regard to the fourth objection — how she could survive this usage, &c ? I leave the degree of prob- ability to be ascertained by the physicians. Possible, I think it is, and I contend for no more. I shall only observe here, that she barely did survive it, and that she, who left her mother in a plump condition, returned so like a spectre, that her mother fainted away when she saw her; her limbs were all emaciated, and the colour of her skin turned black, so as to resemble a state of mortification; her recovery from which state since, is a proof of that firm and sound constitution, which supported her, if she says true, under all her misery. As to the fifth objection, she answers, that the cruel usage she had met with, and the condition she saw herself in, so affected both her mind and body, that she ate scarce anything during the first days of her confinement, and afterwards had so little appetite, that she could scarce swallow the hard morsels which were allotted her. The sixth objection hath, in my opinion, so little in it that had I not heard it insisted on by others, I should not myself have advanced it; common ex- perience every day teaches us, that we endure many inconveniences of life, while we overlook those ways of extricating ourselves, which, when they are dis- covered, appear to have been, from the first, extremely easy and obvious. The inference, which may be drawn from this observation, a moderate degree of candour will oblige us to extend very far in the case of a poor simple child, under all the circumstances of weakness of body and depression and confusion of spirits, till despair, which is a quality that is ever increasing as its object increases, grew to the highest pitch, and 14 THE CASE OF forced her to an attempt which she had not before had the courage to undertake. As to her accomplishing this, and being able to escape to her friends, the probability of this likewise I leave to the discussion of physicians: possible it surely is, and I question very much whether the degree of despair, which I have just mentioned, will not even make it probable ; since this is known to add no less strength to the body than it doth to the mind, a truth which every man almost may confirm by many instances. But if, notwithstanding all I have here said, the narrative should still appear ever so improbable, it may yet become a proper object of our belief, from the weight of the evidence ; for there is a degree of evidence by which every fact that is not impossible to have happened at all, or to have happened in the manner in which it is related, may be supported and ought to be believed. In all cases, indeed, the weight of evidence ought to be strictly conformable to the weight of improbability; and when it is so, the wiser a man is the sooner and easier he will believe. To say truth, to judge well of this conformity is what we truly call sagacity, and requires the greatest strength and force of understanding. He, who gives a hasty belief to what is strange and improbable, is guilty of rashness ; but he is much more absurd who declares that he will believe no such fact on any evidence whatever. The world are too much inclined to think that the credulous is the only fool ; whereas, in truth, there is another fool of a quite opposite character, who is much more difficult to deal with, less liable to the dominion of reason, and possessed of a frailty more prejudicial to himself and often more detrimental to mankind in general. ELIZABETH CANNING. 15 To apply this reasoning to the present case, as we have, it is hoped, with great fairness and impartiality, stated all the improbabilities which compose this girl's nar- rative, we will now consider the evidence that supports them. And when we have done this, it will possibly appear, that the credulous person is he who believes that Elizabeth Canning is a liar. First, then, there is one part of this story which is incontestably true, as it is a matter of public notoriety, and known by almost every inhabitant in the parish where her mother dwells. This is, that the girl, after the absence of a month, returned on the 29th of January, in the dreadful condition above described. This being an established fact, a very fair presumption follows that she was confined somewhere, and by some person; that this confinement was of equal duration with her absence ; that she was almost starved to death ; that she was confined in a place whence it was difficult to make her escape ; that, however, this escape was possible, and that at length she actually made it. All these are circumstances which arise from the nature of the fact itself. They are what Tully calls Evidentia Rei, and are stronger than the positive testi- mony of any witnesses ; they do, indeed, carry con- viction with them to every man who hath capacity enough to draw a conclusion from the most self-evident premises. These facts being established, I shall oppose impro- bability to improbability, and first I begin by asking, Why did this girl conceal the person who thus cruelly used her? It could not be a lover; for among all the cruelties by which men have become infamous in their commerce with women, none of this kind can, I believe, be produced. What reason, therefore, can be assigned for this great degree of more than Christian 16 THE CASE OF forgiveness of such barbarous usage is to me, I own, a secret; such forgiveness, therefore, is at least as great a degree of improbability as any which can be found, or which can be feigned in her narrative. Again, what motive can be invented for her laying this heavy charge on those who are innocent ? That street-robbers and Gipsies, who have scarce even the appearance of humanity, should be guilty of wanton cruelty without a motive, hath greatly staggered the world, and many have denied the probability of such a fact : Will they then imagine that this girl hath committed a more deliberate, and, therefore, a more atrocious crime, by endeavouring to take away the lives of an old woman, her son, and another man, as well as to ruin another woman, without any motive what- ever? "Will they believe this of a young girl, hardly 18 years old, who hath the unanimous testimony of all, who ever knew her from her infancy, to support the character of a virtuous, modest, sober, well-dis- posed girl; and this character most enforced by those who know her best, and particularly by those with whom she hath lived in service. As to any motive of getting money by such an at- tempt, nothing can be more groundless and evidently false than the suggestion ; the subscription which was proposed and publicly advertised, was thought of long after the girl's return to her mother, upon which re- turn she immediately told the story in the presence of numbers of people, with all the circumstances with which she hath since, without any variation, related it. The real truth is, that this subscription was set on foot by several well disposed neighbours and very substantial tradesmen, in order to bring a set of horrid villains to justice, which then appeared (as it hath since proved) to be a matter which would be attended ELIZABETH CANNING. 17 with considerable expense, nor was any reward to the girl then thought of; the first proposer of which re- ward was a noble and generous lord, who was present at the last examination of this matter in Boiv-street; so that this charge of the Gipsy woman, and the rest, if a false one, was absolutely without any motive at all. A second improbability which . rises as much higher than that to which it is opposed, as the crime would be higher, since it would be more deliberate in the girl, and as her character is better than that of street rob- bers and Gipsies. Again, as the girl can scarce be supposed wicked enough, so I am far from supposing her witty enough to invent such a story; a story full of variety of strange incidents, and worthy the invention of some writer of romances, in many of which we find such kind of strange improbabilities that are the productions of a fertile, though commonly, a distempered brain; whereas this girl is a child in years, and yet more so in understanding, with all the evident marks of simpli- city that I ever discovered in a human countenance; and this I think may be admitted to be a third impro- bability. A fourth seems to me to arise from the manner in which this poor simple girl hath supported this story; which, as it requires the highest degree of wickedness of heart, and some tolerable goodness of head to have invented, so doth it require no small degree of assur- ance to support ; and that in large assemblies of persons of a much higher degree than she had ever before appeared in the presence of — before noblemen, and ma- gistrates, and judges — persons who must have inspired a girl of this kind with the highest awe. Before all these she went through her evidence without hesitation, confusion, trembling, change of countenance, or other VOL. X. D 18 THE CASE OF apparent emotion. As such a behaviour could proceed only from the highest impudence, or most perfect in- nocence, so it seemed clearly to arise from the latter, as it was accompanied with such a show of decency, modesty, and simplicity, that if these were all affected, which those who disbelieve her must suppose, it must have required not only the highest art, but the longest practice and habit to bring it to such a degree of per- fection. A fifth improbability is, that this girl should fix on a place so far from home, and where it doth not ap- pear she had ever been before. Had she gone to this place of her own accord, or been carried thither by any other than the person she accused, surely Mother Wells would have told this, as it must have acquitted her of the fact laid to her charge, and would indeed have destroyed the whole character of Elizabeth Canning, and of consequence have put an end to the prosecution; but Mother Wells, on the contrary, denied absolutely that Elizabeth Canning had ever been in her house, or that she had ever seen her face before she came there with the peace officers. In this point, viz: That Elizabeth Canning was not acquainted with Mother Wells, or her, house, nor ever there, in any other manner than as she herself hath informed us, her evidence stands confirmed by the best and strongest testimony imaginable, and that is by the declaration of the defendant Wells herself. It is true indeed, that as to her being confined there, Wells utterly denies it, but she as positively affirms that this Elizabeth Canning was never there at any other time, nor in any other manner. From this point then, so established, will result an utter impossibility; for unless this poor girl had been well acquainted with the house, the hay-loft, the pitcher, &c, how was ELIZABETH CANNING. 19 it possible that she should describe them all so very exactly as she did, at her return to her mother's, in the presence of such numbers of people ? Nay, she described likewise, the prospect that appeared from the hay-loft, with such exactness, as required a long time to furnish her with the particulars of. I know but two ways of her being enabled to give this description ; either she must have been there herself, or must have had her information from some other. As to the former, Wells herself denies it; and as to the latter, I leave to the conjecture of my ingenious reader, whether it was Mother Wells herself, the Gipsy woman, Virtue Hall, or who else that instructed Elizabeth Canning in all these particulars. In the mean time, I shall beg leave to conclude, either that we must account for the girl's knowledge one of the ways which I have mentioned ; or, secondly, we must believe an impossibility; or, thirdly, we must swallow the truth of this relation, though it be as hard a morsel as any which the poor girl fed on during her whole confinement. And now I come to a piece of evidence which hath been the principal foundation of that credit which I have given to this extraordinary story. It appeared to me at first to be convincing and unsurmountable, in the same light it appeared to a gentleman whose understanding and sagacity are of the very first rate, and who is one of the best lawyers of his time; he owned that this evidence seemed to him to be un- answerable, so I acknowledge it yet seems to me, and till I shall receive an answer, I must continue to be- lieve the fact which rests upon it. In order to lay this evidence before the reader in a fair and just light, it. will be necessary to give a brief relation of the order of proceedings in this case, 20 THE CASE OF down to the time when Virtue Hall appeared first before me. Upon the return of Elizabeth Canning to her mother's house in the manner above set forth, and upon the account which she gave of her unprecedented sufferings, the visible marks of which then appeared on her body, all her neighbours began to fire with resentment against the several actors concerned in so cruel a scene; and presently some of the most substantial of these neigh- bours proposed to raise a contribution amongst them- selves, in order, if possible, to bring the villains who had injured this poor girl to exemplary justice: as soon, therefore, as she was able to bear the journey, they put her into a chaise, and taking with them proper peace officers, conveyed the girl along the Hertford Roadj to see if she was able to trace out the house where she had been confined; for she at that time knew not the name of the place, nor could she sufficiently describe the situation of Wells's house, though she had before so exactly described the inside of it. Possibly, indeed, she might never have been able to have dis- covered the house at all, had it not been for a very extraordinary incident, and this was, that through the chinks or crevices of the boards of the hay-loft, she saw at a distance the Hertford stage coach pass by, the driver of which she knew, though he past not near enough for her to call to him with any hopes of success, and by this extraordinary circumstance she came to know that the house stood on the Hertford Eoad. When they arrived at this house the poor girl was taken out of the chaise, and placed on a table in the kitchen, where all the family passed in review before her ; she then fixed on the Gipsy woman, whom she had very particularly described before, and who is, per- ELIZABETH CANNING. 21 haps, the most remarkable person in the whole world; she charged likewise Virtue Hall, whose countenance likewise is very easy to be remembered by those who have once seen her. The whole family, however, though no more were positively charged by Elizabeth Canning, being put all into a cart were conducted before Mr. Tyshemaher, who is a justice of the peace for the County of Middlesex, who, having first examined Elizabeth Canning alone, but without taking from her any information in writing, did afterwards examine all the parties, and in the end committed the Gipsy woman and Wells — the former for taking away the stays from Elizabeth Canning, and the latter for keeping a disorderly house. And here the reader will be pleased to observe these facts : First, That Elizabeth Canning did not make any information in writing before this justice. Secondly, That the history of the fact that she re- lated to the justice was not in the presence of Virtue Hall Thirdly, That Elizabeth Canning, so cautious is she in taking her oath, declared that she could not swear to the Gipsy's son, as the men's hats were flapped over their faces in the house, and as when she was first assaulted it was so very dark, she could not dis- tinguish their countenances, nor did she charge Wells with any crime at all, except that which resulted from the tenor of her whole evidence of keeping a disorderly house. Lastly, That Virtue Hall did, at that time, absolutely deny that she knew anything of the matter, and de- clared that Elizabeth Canning had never been in Wells's house, to her knowledge, till that day, nor had she ever seen her face before; the consequence of which 22 THE CASE OF declaration was, that the Gipsy's son, whom this Virtue Hall hath since accused of the robbery, was discharged by Mr. Tyshemaker.„ Elizabeth Canning, with her friends, now returned home to her mother's house, where she continued to languish in a very deplorable condition; and now Mr. Salt, the attorney, who hath been employed in this cause, advised the parties to apply to counsel, and upon this occasion, as he hath done upon many others, he fixed upon me as the counsel to be advised with. Accordingly, upon the 6th of February, as I was sit- ting in my room, Counsellor Maden being then with me, my clerk delivered me a case, which was thus, as I remember, endorsed at the top, The Case of Eliza- beth Canning for Mr. Fielding's opinion, and at the bottom, Salt, Solr. Upon the receipt of this case, with my fee, I bid my clerk give my service to Mr. Salt and tell him that I would take the case with me into the country, whither I intended to go the next day, and desired he would call for it on the Friday morning afterwards ; after which, without looking into it, I de- livered it to my wife, who was then drinking tea with us, and who laid it by. The reader will pardon my being, so particular in these circumstances, as they seem, however trifling they may be in themselves, to show the true nature of this whole transaction, which hath been so basely misrepresented, and as they will all be attested by a gentleman of fashion, and of as much honour as any in the nation. My clerk presently returned up stairs, and brought Mr. Salt with him, who, when he came into the room, told me that he believed the question would be of very little difficulty, and begged me ear- nestly to read it over then, and give him my opinion, as it was a matter of some haste, being of a criminal ELIZABETH CANNING. 23 nature, and he feared the parties would make their escape. Upon this, I desired him to sit down, and when the tea was ended, I ordered my wife to fetch me back the case, which I then read over, and found it to contain a very full and clear state of* the whole affair relating to the usage of this girl, with a querc what methods might be proper to take to bring the offenders to justice ; which quere I answered in the best manner I was able. Mr. Salt then desired that Elizabeth Canning might swear to her information be- fore me, and added, that it was the very particular desire of several gentlemen of that end of the town, that Virtue Hall might be examined by me relating to her knowledge of this affair. This business I at first declined, partly, as it was a transaction which had happened at a distant part of the county, as it had been examined already by a gen- tleman, with whom I have the pleasure of some ac- quaintance, and of whose worth and integrity I have with all, I believe, who know him, a very high opinion; but principally, indeed, for that I had been almost fatigued to death, with several tedious examinations at that time, and had intended to refresh myself with a day or two's interval in the country, where I had not been, unless on a Sunday, for a long time. I yielded, however, at last, to the importunities of Mr. Salt ; and my only motives for so doing were, be- sides those importunities, some curiosity, occasioned by the extraordinary nature of the case, and a great com- passion for the dreadful condition of the girl, as it was represented to me by Mr. Salt. The next day Elizabeth Canning was brought in a chair to my house, and being lead up stairs between two, the following information, which I had never 24 THE CASE OF before seen, was read over to her, when she swore to the truth and set her mark to it. Middlesex.] The Information of Elizabeth Canning, of Aldermanbury Postern, London, spinster, taken upon oath this 7th day of February, in the year of Our Lord 1753, before Jlenry Fielding, Esq., one of His Majesty's Justices of the Peace for the County of Mid- dlesex. This informant, upon her oath, saith, That on Monday, the 1st day of January last past, she, this informant, went to see her uncle and aunt, who live at Saltpetre Bank, near Rosemary Lane, in the County of Middlesex, and continued with them until the evening, and saith, That upon her return home about half an hour after nine, being opposite Bethlehem-gate in Moorfields, she, this informant, was seized by two men (whose names are unknown to her, this informant) who both had brown bob-wigs on, and drab-coloured great-coats, ohe of whom held her, this informant, whilst the other feloniously and violently, took from her one shaving hat, one stuff gown, and one linen apron, which she had on; and also, half a guinea in gold, and three shillings in silver ; and then he that held her threatened to do for this informant. And this informant saith, that, immediately after, they, the same two men, violently took hold of her, and dragged her up into the gravel-walk that leads down to the said gate, and about the middle thereof, he, the said man, that first held her, gave her, with his fist, a very violent blow upon the right temple, which threw her into a fit, and deprived her of her senses, (which fits she, this infor- mant, saith she is accustomed and subject to upon being ELIZABETH CANNING. 25 frighted, and that they often continue for six or seven hours. And this informant saith, that when she came to herself, she perceived that she was carrying along by the same two men, in a large road-way: and saith, that in a little time after, she was so recovered she was able to walk alone ; however they continued to pull her along, which still so intimidated and frighted her, that she durst not call out for assistance, or speak to them. And this informant saith, that, in about half an hour after she had so recovered herself, they, the said two men, carried her, this informant, into a house, (which, as she, this informant, heard from some of them, was about four o'clock in the morning, and which house, as she, this informant, hath since heard and believes, is situate at Enfield-wash in the County of Middlesex, and is reputed to be a very bad and disorderly bawdy- house, and occupied by one Wells widow) and there this informant saw, in the kitchen, an old Gipsy woman, and two young women, whose names were unknown to this informant; but the name of one of them this informant hath since heard, and believes is Virtue Hall, and saith, that the said old Gipsy woman took hold of this informant's hand, and promised to give her fine clothes if she would go their way (mean- ing, as this informant understood, to become a prosti- tute) ; which this informant, refusing to do, she, the said old Gipsy woman, took a knife out of a drawer, and cut the lace of the stays of her, this informant, and took the said stays away from her ; and one of the said men took off her cap, and then the said two men went away with it, and she, this infor- mant, hath never since seen any of her things. And this informant saith, that soon after they were gone (which she, this informant, believes was about five in the morning) she, the said old Gipsy woman, vol. x. e 26 THE CASE OF forced her, this informant, up an old pair of stairs, and pushed her into a back room like a hay-loft, without any furniture whatsoever in the same, and there locked her, this informant, up, threatening her, this informant, that if she made the least noise or disturbance, she, the said old Gipsy woman, would cut her throat, and then she went away. And this infor- mant saith, that when it grew light, upon her looking round to see in what a dismal place she was, she, this informant, discovered a large black jug, with the neck much broken, wherein was some water; and upon the floor, several pieces of bread, near in quantity to a quartern loaf, and a small parcel of hay: and saith, that she continued in this room or place, from the said Tuesday morning, the 2nd clay of January, until about half-an-hour after four of the clock in the afternoon of Monday, the 29th day of the same month of January, without having or receiving any other sustenance or provision, than the said bread and water (except a small minced-pie, which she, this informant, had in her pocket) ; or any thing to lie on other than the said hay, and with- out any person or persons coming to her, although she often heard the name of Mrs. and Mother Wells, called upon, whom she understood was the mistress of the house. And this informant saith, that on Friday, the 26th day of January last past, she, this informant, had consumed all the aforesaid bread and water, and continued without having any thing to eat or drink until the Monday following, when she, this informant, being almost famished with hunger, and starved with cold, and almost naked during the whole time of her confinement, about half-an-hour after four in the afternoon of the said 29th day of January, broke out at a window of the said ELIZABETH CANNING. 27 room or place, and got to her friends in London, about a quarter after ten the same night, in a most weak, miserable condition, being very near starved to death. And this informant saith, that she ever since hath been, and now is, in a very weak and declin- ing state and condition of health, and although all possible care and assistance is given her, yet what- ever small nutriment she, this informant, is able to take, the same receives no passage through her, but what is forced by the apothecary's assistance and medicines. The mark of E.C. Sworn before me, Elizabeth Canning. this 1th of Feb. 1753. H. FIELDING. Upon this information, I issued a warrant against all who should be found resident in the house of the said Wells, as idle and disorderly persons, and persons of evil fame, that they might appear before me, to give security for their good behaviour ; upon which warrant, Virtue Hall, and one Judith Natus were seized and brought before me, both being found at Mother Wells's : they were in my house above an hour or more before I was at leisure to see them, during which time, and before I had ever seen Virtue Hall, I was informed, that she would confess the whole matter. When she came before me she appeared in tears, and seemed all over in a trembling condition ; upon which I endeavoured to soothe and comfort her : the words I first spoke to her, as well as I can remember, were these, — child, you need not be under this fear and apprehension; if you will tell us the whole truth of this affair, I give you my word and 28 THE CASE OF honour, as far as it is in my power, to protect yon; yon shall come to no manner of harm. She answered, that she would tell the whole truth, but desired to have some time given her to recover from her fright; upon this, I ordered a chair to be brought her, and desired her to sit down, and then, after some minutes, began to examine her ; which I continued doing, in the softest language and kindest manner I was able, for a considerable time, till she had been guilty of so many prevarications and contradictions, that I told her I would examine her no longer, but would com- mit her to prison, and leave her to stand or fall by the evidence against her ; and at the same time advised Mr. Salt to prosecute her as a felon, together with the Gipsy woman ; upon this, she begged I would hear her once more, and said that she would tell the whole truth, and accounted for her unwillingness to do it, from the fears of the Gipsy woman, and Wells. I then asked her a few questions, which she answered with more appearance of truth than she had done before; after which, I recommended to Mr. Salt to go with her and take her information in writing ; and at her parting from me, I bid her be a good girl, and to be sure to say neither more nor less than the whole truth. During this whole time, there were no less than ten or a dozen persons of credit present, who will, I suppose, testify the truth of this whole transaction as it is here related. Virtue Hall then went from me, and returned in about two hours, when the following information, which was, as she said, taken from her mouth, was read over to her and signed with her mark. ELIZABETH CANNING. 29 The Information of Virtue Hall, late of the parish of Enfield in the County of Middlesex, Spinster, taken upon oath this 13th day of February, 1753, before me, Henry Fielding, Esq., one of His Majesty's Justices of the Peace for the County of Middlesex. This informant, upon her oath, saith, that on Tues- day the 2nd day of January, last past, about four of the clock in the morning, a young woman, whose name, this informant hath since heard, is Elizabeth Canning, was brought (without any gown, hat, or apron on) to the house of one Susannah Wells, of Enfield Wash, in the county aforesaid, widow, by two men, the name of one of whom is John Squires, the reputed son of one Mary Squires, an old Gipsy woman, who then, and some little time before, had lodged at the house of the said Susannah Wells, but the name of the other of the said two men this in- formant knows not, she, this informant, never having seen him before or since to the best of her knowledge. And this informant saith, that when she the said Elizabeth Canning, was brought into the kitchen of the said Wells s house, there were present the said Mary Squires, John Squires, the man unknown, Catherine Squires, the reputed daughter of the said Mary Squires, and this informant ; and this informant does not recollect that any one else was in the said kitchen at that time : and saith, that immediately upon her, the said Elizabeth Canning being brought in, the said John Squires said, here mother take this girl, or used words to that effect ; and she, the said Mary Squires, asked him where they had brought her from : and John said from Moorfields; and told his said mother 30 THE CASE OF that they had taken her gown, apron, hat, and half a guinea from her, to the best of this informant's recollection and belief; whereupon she, the said Mary Squires, took hold of the said Elizabeth Canning's hand, and asked her if she would go their way, or words to that effect ; and upon the said Elizabeth Canning answering no, she, the said Mary Squires, took a knife out of the drawer of the dresser in the kitchen, and therewith cut the lace of the said Elizabeth Canning's stays, and took the said stays away from her, and hung them on the back of a chair, and the said man unknown, took the cap off the said Elizabeth Can- ning's head, and then he, with the said John Squires, went out of doors with it. And this informant saith, that quickly after they were gone, she, the said Mary Squires, pushed the said Elizabeth Canning along the kitchen towards and up a pair of stairs leading into a large back room like a loft, called the workshop, where there was some hay; and whilst she, the said Mary Squires, was pushing her, the said Elizabeth Canning, towards the stairs, she, the said Susannah "Wells, came into the kitchen and asked the said Mary Squires what she was going to push the girl up stairs for, or words to that effect, and to the best of this informant's recollection and belief, the said Mary Squires answered — What is that to you? you have no business with it. Whereupon the said Susannah Wells directly went out of the kitchen into an opposite room called the parlour, from whence she came, as this informant believes. And this informant saith that the said Mary Squires forced the said Elizabeth Canning up stairs into the said work- shop, and buttoned the door at the bottom of the stairs in the kitchen upon her, and confined her there. And this informant saith, that about two hours after, a quantity ELIZABETH CANNING. 31 of water in an old broken-mouthed large black jug was carried up the said stairs, and put clown upon the floor of the said workshop at the top of the stairs, to the best of this informant's recollection and belief. And this in- formant saith, that soon after the said Elizabeth Canning was so put into the said workshop, and the said Susannah Wells was returned into the parlour, the said John Squires returned again into the kitchen, and took the stays from off the chair and went away with the same, and in about an hour's time returned and went into the parlour with the said Susannah Wells ; he, the said John Squires, came again into the kitchen, and then this informant went into the parlour to the said Susannah Wells, and the said Susannah Wells there said to the informant, Virtue, the Gipsy man (meaning the said John Squires) has been telling me that his mother had cut the girl's (meaning the said Elizabeth Canning s) stays off her back, and that he has got them; and further said I desire you will not make a clack of it for fear it should be blown, or used words to that or the like effect. And this informant saith that from the time of the said Elizabeth Canning being so confined in the morning of the said 2nd day of January, in manner as aforesaid, she, the said Elizabeth Canning was not missed or discovered to have escaped out of the said workshop until Wednesday, the 31st day of the same month of January, as she, this informant, verily believes; for that to the best of this informant's recollec- tion and belief, she was the person that first missed the said Elizabeth Canning thereout. And this informant saith, that the said Susannah Wells harboured and continued the said Mary Squires in her aforesaid house from the time of the said Mary Squires robbing the said Elizabeth Canning of her stays, until Thursday, the 1st day of February last past, when the said Susannah Wells, 32 THE CASE OF Sarah, her daughter, Mary Squires, John Squires, his two sisters, Catherine and Mary Squires, Fortune Natus, and Sarah, his wife, and this informant, were appre- hended on account thereof, and carried before Justice Tyshemaker. And this informant saith, that Fortune Natus and Sarah his wife, to the best of this in- formant's recollection and belief, have lodged in the house of the said Susannah Wells about eleven weeks next before Monday, the 5th day of February instant, and layed on a bed of hay spread in the kitchen at night, which was in the day-time pushed up in a corner thereof, and continued lying there, when at home, until Thursday, the said 5th day of February, when, before the said Mr. Tyshemaker, all, except the said Susannah Wells and Mary Squires, were dis- charged, and then that evening the said Fortune Natus and Sarah, his wife, laid up in the said work- shop where the said Elizabeth Canning had been confined, so that, as this informant understood, it might be pretended that they had lain in the said workshop for all the time they had lodged in the said Susannah Wells's house. And saith, that on the day on which it was discovered that the said Elizabeth Canning had made her escape out of the said work- shop, by breaking down some boards slightly affixed across the window-place, the said Sarah, daughter of the said Susannah Wells, nailed up the said window- place again with boards, so that the said window- place might not appear to have been broke open. And lastly, this informant saith, that she, this informant, hath lived with the said Susannah Wells about a quarter of a year last past, and well knows that the said Susannah Wells, during that time, hath kept a very notorious, ill-governed and disorderly house, and ELIZABETH CANNING. 33 has had the character of doing so for many years past; and that the said Susannah Wells well laaew and was privy to the confinement of the said Elizabeth Canning. Sworn before me, this Her 14th February 1753. Virtue Hall x Mark. H. FIELDING. The reader will be pleased to consider the nature of this information truly taken in the manner above set down, to compare it with the evidence given by this Virtue Hall at her trial, and lastly, to compare it with the evidence of Elizabeth Canning, and then I am much mistaken if he condemns either the judge or jury. After I had finished the examination of Virtue Hall, one Judith Natus, the wife of Fortune Natus, whom I apprehend to belong to the Gipsies, and who was found in the house with Virtue Hall, being examined upon her oath before me, declared, that she and her husband lay in the same room where Elizabeth Canning pretended to have been confined during the whole time of her pretended confinement, and declared that she had never seen nor heard of any such person as Elizabeth Canning in Wells's house. Upon this, Virtue Hall, of her own accord, affirmed, as she doth in her information in writing, these two persons were introduced into that room, to lie there, by Mother Wells, to give a colour to the defence which Wells was to make, and which these people, in the presence of Virtue Hall, had agreed to swear to. Upon this some persons, who where present, were desirous that this Judith Natus should be committed for perjury, but I told them that such a proceeding would be contrary to law, for that I might as well F 34 THE CASE OF commit Virtue Hall upon the evidence of Judith Natus. However, as I confess I myself thought her guilty of perjury, I gave her some little caution, and told her that she ought to be very sure of the truth of what she said, if she intended to give that evidence at the Old Bailey, and then discharged her. The next day Virtue Hall came again before me, but nothing material passed, nor was she three minutes in my presence. I then ordered detainers for felony against the Gipsy woman and Wells to be sent to the prisons where they then lay, upon the commitments of Mr. Tyshemaker, and thus ended all the trouble which I thought it was necessary for me to give myself in this affair ; for, as to the Gipsy woman or Wells, those who understand the law well know I had no business with them. Some days afterwards, however, upon my return to town, my clerk informed me that several noble lords had sent to my house in my absence, desiring to be present at the examination of the Gipsy woman. Of this I informed Mr. Salt, and desired him to bring Elizabeth C aiming and Virtue Hall, in order to swear their several informations again in the presence of the Gipsy woman and Wells, and appointed him a day for so doing, of which I sent an advice to the noble lords. One of these, namely, Lord Montfort, together with several gentlemen of fashion, came at the appointed time. They were in my room before the prisoners or witnesses were brought up. The informations were read to the two prisoners; after which I asked the prison- ers a very few questions, and in what manner I behaved to them, let all who were present testify ; I can truly say, that my memory doth not charge me with having ever insulted the lowest wretch that hath been brought before me, ELIZABETH CANNING. 35 The prisoners and witnesses left the room while all the company remained in it; and from that time to this day I never saw the face of Virtue Hall, unless once when she came before me with Canning, to see a man who was taken on suspicion of the robbery, and when I scarce spoke to her ; nor should I have seen Elizabeth Canning more, had not I received a message from some gentlemen desiring my advice how to dispose of some money which they had col- lected for the use of Elizabeth Canning, in the best manner for her advantage ; upon which occasion I ordered her to be sent for, to meet one of the gentle- men at my house : and had I not likewise been informed, since the trial, that a great number of affidavits, proving that the Gipsy woman was at Ab- botsbury in Dorsetshire, at the very time when Elizabeth Canning had sworn that she was robbed by her at Enfield Wash, were arrived at my lord mayor's office. Upon this I sent for her once more, and endeavoured by all means in my power to sift the truth out of her, and to bring her to a confession if she was guilty; but she persisted in the truth of the evidence that she had given, and with such an appearance of innocence, as persuaded all present of the justice of her cause. Thus have I very minutely recited the whole concern which I had in this affair, unless that after I had discharged my whole duty as a justice of the peace, Mr. Salt came again to consult with me concerning the crime of which Wells was accused, and the manner of prosecuting her, upon a point of law, which is by no means a very easy one, namely, that of accessories after the fact in felony, upon which I gave him my opinion. And now, having run through the process of the 36 THE CASE OF affair as far as to the trial, which is already in print, I come to lay before the reader that point of evidence on which, as I have said, so great a stress ought to be laid, a point on which indeed any cause whatever might be safely rested: this is the agreement, in so many particular circumstances, between the evidence of Elizabeth Canning and Virtue Hall. That Virtue Hall had never seen nor heard the evidence of Elizabeth Canning at the time when she made her own infor- mation, is a fact ; nay, had she even heard the other repeat it once over before a justice of peace, that she should be able, at a distance of time, to retain every particular circumstance so exactly as to make it tally in the manner her information doth with that of Elizabeth Canning, is a supposition in the highest degree absurd, and those who can believe it can believe that which is much more incredible than any thing in the narrative of Elizabeth Canning. The only way therefore to account for this is, by supposing that the two girls laid this story together. To the probability and indeed possibility of this sup- position, I object. First, That from the whole circumstances of this case it appears manifestly that they had never seen the face of each other (unless Canning be believed as to the time when she was brought into Wells's) before the persons came to apprehend her, nay, Wells her- self declared before me that Canning had never been in her house, and the other scarce ever out of it during the whole month in question. Secondly, If we could suppose they had met together so as to form this story, the behaviour of Virtue Hall before Mr. Tyshemaker would entirely destroy any such sup- position, for there this Virtue Hall was so far from being in the same story with Elizabeth Canning, that ELIZABETH CANNING. 37 she there affirmed she knew nothing of the matter, and she had then no reason to apprehend any further examination; nor is it possible to conceive that these two girls should afterwards enter into any such agree- ment. From the day of the examination before Mr. Tyshemaker, till Virtue Hall came before me, the two girls never saw the face of each other, the one re- mained sick at her mother's in town, the other con- tinued at Wells's house at Enfield, in company with those who yet persist in their friendship to Wells and the Gipsy. In reality, I never yet heard a fact better established in a court of justice than this, that Eliza- beth Canning and Virtue Hall did not lay this story together, nay, even she herself doth not, as I have heard, since her apostacy, pretend to say any such thing, but imputes her evidence to her being threat- ened and bullied into it, which, to my own knowledge, and that of many others, is a most impudent false- hood; and, secondly, ascribes her agreeing with Eliza- beth Canning to having heard her deliver her evidence, which, besides being impossible, can be proved to be another notorious falsehood, by a great number of witnesses of indisputable credit. So that I think I am here entitled to the following syllogistical conclusion : Whenever two witnesses declare a fact, and agree in all the circumstances of it, either the fact is true or they have previously concerted the evidence between themselves. But in this case it is impossible that these girls should have so previously concerted the evidence : And, therefore, the fact is true. The reader will be pleased to observe, that I do not here lay any weight on the evidence of Virtue Hall, as far as her own credit is necessary to support that 38 THE CASE OF evidence, for In truth she deserves no credit at all; the weight which I here lay on her evidence is so far only as it is supported by that evidence of fact which alone is always safely to be depended upon, as it is alone incapable of a lie. And here, though I might very well rest the merits of the whole cause on this single point, yet I cannot conclude the case of this poor girl without one obser- vation, which hath, I own, surprised me, and will, I doubt not, surprise the reader. It is this, Why did not the Gipsy woman and Wells produce the evidence of Fortune Natus and his wife in their defence at their trial, since that evidence, as they well knew, was so very strong in their behalf, that had the jury believed it, they must have been acquitted? For my own part, I can give but one answer to this, and that is too obvious to need to be here mentioned. Nor will I quit this case, without observing the pretty incident of the minced pie, which, as it possibly saved this poor girl's life, so doth the intention of carrying it home to her little brother serve very highly to represent the goodness as well as childishness and simplicity of her character ; a character so strongly imprinted in her countenance, and attested by all her neighbours. Upon the whole, this case, whether it be considered in a private or a public light, deserves to be scruti- nised to the bottom; and that can be only done by the Government's authorising some very capable and very indifferent persons to examine into it, and parti- cularly into the alibi defence of Mary Squires, the Gipsy woman. On the one side here is the life of a subject at stake, who, if her defence is true, is inno- cent; and a young girl, guilty of the blackest, most premeditated, and most audacious perjury, levelled ELIZABETH CANNING. 39 against the lives of several innocent persons. On the other side, if the evidence of Elizabeth Canning is true, and perjury should, nevertheless, prevail against her, an innocent young creature, who hath suffered the most cruel and unheard-of injuries, is in danger of being rewarded for them by ruin and infamy; and what must extremely aggravate her case, and will dis- tinguish her misery from that of all other wretches upon earth, is, that she will owe all this ruin and in- famy to this strange circumstance, that her sufferings have been beyond what human nature is supposed capable of bearing; whilst robbery, cruelty, and the most impudent of all perjuries, will escape with im- punity and triumph; and, therefore, will so escape, because the barbarity of the guilty parties hath risen to a pitch of wanton and untempted inhumanity, be- yond all possibility of belief. As to my own conduct in this affair, which I have deduced with the most minute exactness, I know it to be highly justifiable before God and before man. I frankly own I thought it entitled me to the very reverse of censure. The truth is, the same motive prevailed with me then, which principally urged me to take up my pen at this time, a desire to protect innocence and to detect guilt ; and the delight in so doing was the only reward I ever expected, so help me God ; and I have the satisfaction to be assured that those who know me best will most believe me. In solemn truth, the only error I can ever be pos- sibly charged with in this case is an error in sagacity. If Elizabeth Canning be guilty of a false accusation, I own she hath been capable of imposing on me; but I have the comfort to think the same imposition hath passed not only on two juries, but likewise on one of the best judges that ever sate on the bench of justice,. 40 THE CASE OF and on two other very able judges who were present at the trial. I do not, for my own part, pretend to infallibility, though I can at the same time with truth declare that I have never spared any pains in endeavouring to de- tect falsehood and perjury, and have had some very notable success that way. In this case, however, one of the most simple girls I ever saw, if she be a wicked one, hath been too hard for me ; supposing her to be such, she hath indeed most grossly deceived me, for I remain still in the same error; and I appeal, in the most solemn manner, to the Almighty for the truth of what I now assert. I am at this very time on this 15th day of March, 1753, as firmly persuaded as I am of any fact in this world, the truth of which depends solely on the evi- dence of others, that Mary Squires, the Gipsy woman, is guilty of the robbery and cruelty of which she stands convicted ; that the alibi defence is not only a false one, but a falsehood very easy to be practised on all occasions where there are gangs of people, as Gipsies, &c. ; that very foul and unjustifiable practices have been used in this whole affair since the trial, and that Elizabeth Canning is a poor, honest, innocent, simple girl, and the most unhappy and most injured of all human beings. It is this persuasion alone, I repeat it again, which occasioned me to give the public this trouble; for as to myself I am, in my own opinion, as little concerned in the event of this whole matter as any other man whatever. "Whatever warmth I have at last contracted in this matter, I have contracted from those who have been much warmer on the other side ; nor can any such magistrate blame me, since we must, I am persuaded, ELIZABETH CANNING. 41 act from the same motive of doing justice to injured innocence. This is surely the duty of every man, and a very indispensible duty it is, if we believe one of the best of writers. Qui non defendit, nee obsistit, si potest, injuria, tarn erit in vitio quam si parentes, aut amicos, aut patriam deserat. These are Tully's words, and they are in the most especial manner applicable to every magis- trate. To the merit of having discharged this duty, my lord mayor as well as myself have a just title at all events. And for my own part, as I do not expect to gain, so neither do I fear to lose any other honour on the final issue of this affair; for surely the cause is of such a nature that a man must be intolerably vain who is ashamed of being mistaken on either side. To be placed above the reach of deceit is to be placed above the rank of a human being ; sure I am that I make no pretension to be of that rank; indeed I have been often deceived in my opinion of men, and have served and recommended to others those persons whom I have afterwards discovered to be totally worthless. I shall, in short, be very well contented with the cha- racter which Cicero gives of Epicurus. Quis ilium negat m bonum virum d comem & humanum fuisse I And whoever will allow me this, which I must own I think I deserve, shall have my leave to add, tamen, si licec vera sunt non satis acutus fuit. In solemn truth so little desirous am I to be found in the right, that I shall not be in the least displeased to find myself mistaken. This indeed I ought, as a good man, to wish may be the case, since that this country should have produced one great monster of iniquity is a reflection much less shocking than to consider the nation to be arrived at such an alarming state of profligacy, and our laws and government to lie in so languish- es 42 THE CASE OF ing a condition that a gang of wretches like these sh6uld dare to form such an impudent attempt to elude public justice, nay, rather to overbear it by the force of associated perjury in the face of the whole world; and that this audacious attempt should have had, at least, a very high probability of succeeding. This is the light in which I see this case at present. I conclude, therefore, with hoping that the government will authorise some proper persons to examine to the very bottom, a matter in which the honour of our national justice is so deeply concerned. POSTSCEIPT In the extreme hurry in which the foregoing case was drawn up, I forgot to observe one strange cir- cumstance which will attend the case of Elizabeth Canning, if it should be admitted to be a forgery; this is, ihat she should charge the Gipsy woman, when she must have known that woman could prove an alibi, and not Susannah Wells,, who could have had no such proof. This will be very strong if ap- plied to the evidence of Canning, but much stronger when applied to the evidence of Virtue Hall, who lived in the house the whole time. This appears to be very simple conduct; and, as such, indeed, is consistent enough with her character. So is not the artful manner in which the charge was brought out; first, Canning accused the Gipsy woman, and went no further; then Hall brought the rest upon the stage, all in such regularity, and with such appearance of truth that no Newgate solicitor ever ELIZABETH CANNING. 43 ranged his evidence in better order. But, perhaps, I might have spared my reader these observations, as I can now inform him that I have this very afternoon (Sunday the 18th instant) read over a great number of affidavits corroborating the whole evidence of Canning, and contradicting the alibi defence of the Gipsy woman. I shall only add, that these affidavits are by unquestion- able witnesses, and sworn before three worthy Justices of the County of Middlesex, who lived in the neigh- bourhood of Enfield Washe. A TBUE STATE CASE OF BOSAVERN PBNLEZ WHO SUFFEBED ON ACCOUNT OF THE LATE RIOT IN THE STRAND, In which the Law, regarding these Offences and the Statute of George the First, commonly called the Riot Act, are fully considered. HENRY FIELDING, Esq., Barrister at Law, and one of His Majesty's Justices of the Peace for the County of Middlesex, and for the City and Liberty of Westminster. TRUE STATE CASE BOSAVEEN PBNLBZ It may easily be imagined that a man whose character hath been so barbarously, even without the least regard to truth or decency, aspersed on account of his endea- vours to defend the present government, might wish to decline any future appearance as a political writer ; and this possibly may be thought by some a sufficient reason of that reluctance with which I am drawn forth to do an act of justice to my King and his administration, by dis- abusing the public, which hath been, in the grossest and wickedest manner, imposed upon, with relation to the case of Bosavem Penlez, who was executed for the late riot in the Strand. There is likewise another reason of this reluctance with which those only who know me well can be cer- 48 THE CASE OF tainly acquainted ; and that is my own natural disposi- tion. Sure I am, that I greatly deceive myself, if I am not in some little degree partaker of that milk of human kindness which Shakspeare speaks of. I was desirous that a man who had suffered the extremity of the law should be permitted to rest quietly in his grave. I was willing that his punishment should end there; nay, that he should be generally esteemed the object of compassion, and, consequently, a more dreadful example of one of the best of all our laws. But when this malefactor is made an object of sedi- tion, when he is transformed into a hero, and the most merciful prince who ever sat on any throne is arraigned of blameable severity, if not of downright cruelty, for suffering justice to take place ; and the sufferer, in- stead of remaining an example to incite terror, is re- commended to our honour and admiration ; I should then think myself worthy of much censure, if having a full justification in my hands, I permitted it to sleep there, and did not lay it before the public, especially as they are appealed to on this occasion. Before I enter, however, into the particulars of this man's case, and perform the disagreeable task of raking up the ashes of the dead, though of the meanest degree, to scatter infamy among them, I will premise some- thing concerning the law of riots in general. This I shall do, as well for the justification of the law itself, as for the information of the people, who have been long too ignorant in this respect ; and who, if they are now taught a little better to know the law, are taught at the same time to regard it as cruel and oppressive, and as an innovation on our constitution : for so the statute of George the First, commonly called the Biot Act, hath lately been represented in a public news- paper. BOSAVERN PENLEZ. 49 If this doctrine had been first broached in this paper, the ignorance of it would not have been worth remark- ing; but it is in truth a repetition only of what hath been formerly said by men who must have known better. Whoever remembers the political writings pub- lished twenty years ago, must remember that among the articles exhibited against a former administration, this of passing the Kiot Act was one of the principal. Surely these persons mean to insinuate that by this statute riots were erected into a greater crime than they had ever before been esteemed, and that a more severe punishment was enacted for them than had for- merly been known among us. Now the falsehood of this must be abundantly apparent to every one who hath any competent knowledge of our laws. Indeed whoever knows anything of the nature of mankind, or of the history of free countries, must en- tertain a very indifferent opinion of the wisdom of our ancestors, if he can imagine they had not taken the strongest precautions to guard against so dangerous a political disease, and which hath so often produced the most fatal effects. Eiots are in our law divided into those of a private and into those of a public kind. The former of these are when a number of people (three at the least) assemble themselves in a tumultuous manner, and commit some act of violence amounting to a breach of the peace, where the occasion of the meeting is to redress some grievance, or to revenge some quarrel of a private nature ; such as to remove the enclosures of lands in a particular parish, or unlawfully and forcibly to gain the possession of some tenement, or to revenge some injury done to one or a few persons, or on some other such private dispute, in which the interest of the public is no ways concerned. H 50 THE CASE OF Such riot is a very high misdemeanor, and to be punished very severely by fine and imprisonment. Mr. Pulton, speaking of this kind of riot, writes thus : * Riots, routs, unlawful and rebellious assemblies, have ' been so many times pernicious and fatal enemies to 'this kingdom, the peace and tranquility thereof, and 1 have so often shaken the foundation, and put in hazard ' the very form and state of government of the same, that ' our law-makers have been enforced to devise from age to ' age, one law upon another, and one statute after another 1 for the repressing and punishing of them, and have ' endeavoured by all their wits to snip the sprouts, and ■ quench the very first sparks of them. As every man 'may easily perceive there was cause thereof, who will 1 look back and call to his remembrance what that small 1 riot, begun at Dartmouth, in Kent, in the reign of King ' Eichard the Second, between the collector of a subsidy ' and a Tyler and his wife, about the payment of one poor 'groat, did come unto, which being not repressed in * time, did grow to so great a rebellion, that after it put in ' hazard the life of the King, the burning of the City of ' London, the overthrow of the whole nobility, gentlemen, ' and all the learned of the land, and the subversion of ' this goodly monarchy and form of government. Or, if ' they will call to mind the small riot or quarrel begun in ' the reign of King Henry the Sixth, between a yeoman of 'the guard and a serving-man of Eichard Nevil's, Earl of ' "Warwick, which so far increased for want of restraint, ' that it was the root of many woeful tragedies, and a mean ' to bring to untimely death first Eichard Plantagenet, ' Duke of York, proclaimed successor to the Crown, and ' the chief pillar of the House of York, and after him King ' Henry the Sixth, and Prince Edward his son, the heirs ' of the House of Lancaster, and to ruinate with the one BOSAVERN PBNLEZ. 51 1 or the other of them, most of the peers, great men, and ' gentlemen of the realm, besides many thousands of the ' common people. And therefore King Edward the First 1 did well ordain, that no sheriffs shall suffer barritors or ' maintainers of quarrels in their counties. And that to all 'parliaments, treaties, and other assemblies, each man ' shall come peaceably, without any armour ; and that ' every man shall have armour in his house, according to 'his ability, to keep the peace. And King Edward the 1 Third provided, that no man shall come before the 'justices, nor go or ride armed, And that suspected, ' lewd, and riotous persons shall be arrested, and safely 'kept until they be delivered by the justices of goal 'delivery. And that justices of peace shall restrain 'offenders, rioters, and all other barritors, and pursue, ' take, and chasten them according to their trespass and ' offence. King Eichard the Second did prohibit riots, * routs, and forcible entries into lands, that were made in ' divers counties and parts of the realm. And that none 'from thenceforth should make any riot, or rumour. ' And that no man shall ride armed, nor use launcegaies. ' And that no labourer, servant in husbandry, or artificer, ' or victualler, shall wear any buckler, sword, or dagger. 'And that all the King's officers shall suppress and 'imprison such as make any riots, routs, or unlawful ' assemblies against the peace. King Henry the Fourth 'enacted. That the justices of peace and the sheriff ' shall arrest those which commit any riot, rout, or 'unlawful assembly, shall enquire of them, and record ' their offences. King Henry the Fifth assigned com- ' missioners to enquire of the same justices and sheriffs ' defaults in that behalf, and also limited what punish- ' ment offenders attainted of riot should sustain. King ' Henry the Seventh ordained, that such persons as were 'returned to enquire of riots should have sufficient 52 THE CASE OF 6 freehold or copyhold land within the same shire. And. 'that no maintenance should hinder their inquisition. s And in the reign of Queen Mary there was a necessary 6 statute established to restrain and punish unlawful and 'rebellious assemblies raised by a multitude of unruly ' persons, to commit certain violent, forcible, and riotous 'acts.' The second kind of riot is of a public kind ; as where an indefinite* number of persons assembled themselves in a tumultuous manner, in manner of war, arrayed, and commit any open violence with an avowed design of redressing any public .grievance ; as to remove certain persons from the King, or to lay violent hands on a privy- counsellor, or to revenge themselves of a magistrate for executing his office, or to bring down the price of victuals, or to reform the law or religion, or to pull down all bawdy houses, or to remove all enclosures in general, &c.f This riot is high-treason within the words levying war against the king, in the statute of Edward III. ' For here,' says Lord Coke, 'the pretence is public and 1 general, and not private in particular. \ And this, 1 says he, tho' there be no great number of con- ' spirators, is levying war within th6 purview of the ' above statute/ In the reign of King Henry VIII. it was resolved by all the judges of England, that an insurrection against the statute of labourers for the enhancing of salaries and wages, was a levying of war against the King, because it was generally against the King's * It may be gathered, perils, from Lord Coke, 3 Inst. 176. that the number ought to be above 7 or at most 34, for such number is, he says, called an arm} r . And a lesser number cannot, I think, be well said to be modo gucvrino arraiati. t Hawk. lib. i. cap. 17, sect. 25. + i BOSAVERN PBNLEZ. 53 law, and the offenders took upon them the reforma- tion thereof, which subjects, by gathering power, ought not to do.* In the 20th of Charles II. a special verdict was found at the Old Bailey, that A, B, C, &c, with divers others, to the number of an hundred, assem- bled themselves in manner of war arrayed to pull down bawdy houses, and that they marched with a flag on a staff, and weapons, and pulled down houses in prosecution of their conspiracies ; which by all the judges assembled, except one, was ruled to be high treason.} My Lord Chief-Justice Kelyng, who tried the cause, tells us, in his reports, J ' that he directed the jury, ' that he was well satisfied in his own judgement, I that such assembling together as was proved, and ' the pulling down of houses upon pretence they were ' bawdy houses; was high treason, because they took ' upon them regal power to reform that which be- * longed to the King by his law and justices to correct ' and reform ; and it would be a strange way and mis- * chievous to all people to have such a rude rabble, j without an indictment to proceed in that manner * against all persons houses which they would call ! bawdy houses, for then no man were safe ; therefore * as that way tore the government out of the King's * hands, so it destroyed flie great privilege of the jj people, which is not to be proceeded against, but i upon an indictment first found by a grand jury, and * after, upon a legal trial by another jury, where the 1 party accused was heard to make his defence ; yet, ' says he, because the Kings of this nation had often- * 3 Inst. 10. t Hale's History of the Pleas of the Crown, vol. i, p. 134. 54 THE CASE OF 1 times been so merciful as when such outrages had ' been heretofore done, not to proceed capitally against ' the offenders but to proceed against the offenders * in the star-chamber, being willing to reduce their ' people by milder ways, if it were possible, to their 'duty and obedience ; yet that lenity of the King ' in some cases did not hinder the King, when ' he saw there was need to proceed in a severer ' way, to take that course which was warranted * by law, and to make greater examples, that the ' people may know the law is not wanting so far to ' the safety of the King and his people, as to let ' such outrages go without capital punishment, which ' is at this time absolutely necessary, because we our- * selves have seen a rebellion raised by gathering 1 people together upon fairer pretences than this was, ' for no such persons use at first to declare their 'wickedest design, but when they see that they may ' effect their design, then they will not stick to go i further, and give the law themselves, and destroy ' all that oppose them: but yet because there was no ' body of the long robe there but my brother Wylde, * then Kecorder of London, and myself, and that this ' example might have the greater authority, I did re- ' solve that the jury should find the matter specially, ' and then I would procure a meeting of all the ' judges of England, and what was done should be ' by their opinion, that so this question might have i such a resolution as no person afterwards should ' have reason to doubt the law, and all persons might ' be warned how they for the time to come mingle ' themselves with such rabble on any kind of such ' pretences/ And afterwards out of six against whom special verdicts were found, four were executed. BOSAVERN PENLEZ. 55 In the 13th year of Queen Elizabeth, it was made treason to compass, imagine, invent, devise, or intend to levy war against the Queen, &c. On this statute Richard Bradshaw, a miller, Robert Burton, a mason, and others of Oxfordshire, were in- dicted and attainted. ' This case,' says Lord Coke, 'was | that they conspired and agreed to assemble themselves, \ with as many as they could procure, at Emflowe Hill, j in the said county, there to rise, and from thence to go | from gentleman's house to gentleman's house, and to \ cast down enclosures as well for enlargement of high- ' ways as of arable lands, &c.' This was resolved to be a compassing to levy war against the Queen, and to be treason, and the offenders were executed at Emflowe Hill.* The last mentioned case was in the 30th year of Queen Elizabeth : and two years before that several apprentices of London assembled themselves to the number of three hundred and upwards at Bunhill and Tower Hill, in order to deliver some of their fellows out of prison, and threatened to burn my Lord Mayor's house, and to break open two houses near the Tower where arms were lodged. They had with them a trumpet, and a cloak upon a pole was carried as their colours, and being opposed by the sheriff and sword-bearer of London, offered violence to their persons, and for the offence they were indicted of treason, attainted and executed, f Now the reason of the judgment in all these cases was because the offenders had attempted by force and violence to redress grievances of a public nature ; for as Anderson, in his report of the last case tells us, ' When any persons \ intend to levy war for any matter which the King by ' his law and justice ought or can regulate in his govern- * 3 Inst. 10, 2 And 66. Poph, 122. t 2 And 2. Hale's Hist,, vol. i. 125. 56 THE CASE OF ' ment as King, this shall be intended a levying of war ' against the King ; nor is it material whether they in- ' tend any hurt to the person of the King, if their intent ' be against his office and authority.' This is within the statute of the 13th Elizabeth, and wherever the intent is within that statute, the real levying war is within the statute of Edward III, I have set down these cases only to show the light in which these kinds of riots have been always considered by our ancestors, and how severely they have been punished in the most constitutional reigns. And yet extensive as this branch of treason on the statute of Edward the Third may seem to have been, it was not held sufficient. For by the 3 and 4 of Edward VI. it was made high treason for twelve persons, or above, being assembled together, to attempt to alter any laws, &c, or to continue together above an hour after they are commanded by a justice of peace, mayor, sheriff, &c, to return. And by the same Act it was made felony for twelve persons, or above, to practice to destroy any park, pond, conduit, or dove-house, &c, or to pull down any houses, barns, or mills, or to abate the rates of any lands, or the prices of any victual, &c. This statute was repealed in the ffrst year of Queen Mary, and then it was enacted that * If any persons to the 1 number of twelve, or above, being assembled together, ' shall intend, go about, practice, or put in use, with force ' and arms, unlawfully and of their own authority, to ' change any laws made for religion by authority of ' parliament standing in force, or any other laws or ' statutes of this realm, or any of them, the same 'number of twelve, or above, being commanded ' or required by the sheriff of the shire, or by any justice ' of peace of the same shire, or by any mayor, sheriff, ' justices of peace, or bailiffs of any city, borough, or BOSAVERN PENLEZ. 57 'town corporate, where any such assemblies shall be 1 lawfully had or made, by proclamation in the Queen's ' name to retire and repair to their houses, habitations, * or places from whence they came, and they or any of ' them, notwithstanding such proclamation, shall con- ' tinue together by the space of one whole hour after such - commandment or request made by proclamation ; or ' after that shall willingly in forcible and riotous manner ' attempt to do or put in ure any of the things above ' specified, that then, as well every such abode together, ' as every such act or offence, shall be adjudged felony, 6 and the offenders therein shall be adjudged felons, and 6 shall suffer only execution of death, as in case of felony. 'And if any persons to the said number of twelve, or ' above, shall go about, &c, to overthrow, cut, cast ' down, or dig the pales, hedges, ditches, or other enclo- 4 sure of any park, or other ground enclosed, or the banks ' of any fish-pond or pool, or any conduits for water, con- ' duit-heads, or conduit-pipes having course of water, to ' the intent that the same, or any of them, should from ' thenceforth lie open, or unlawfully to have way or ' common in the said parks or other grounds enclosed, or ' to destroy the deer in any manner of park, or any ' warren of conies, or any dove-houses, or any fish in any i fish-pond or pool, or to pull or cut down any houses, ' barns, mills, or bayes, or to burn any stacks of corn, ' or to abate or diminish the rents of any lands, or the ' price of any victual, corn or grain, or any other thing £ usual for the sustenance of man ; and being required or ' commanded by any justice of peace, &c, by proclama- ' tion to be made, &c, to retire to their habitations, &c, ' and they or any of them notwithstanding shall remain ' together by the space of one whole hour after such ' commandment made by proclamation, or shall in forcible ' manner put in ure any the things last before mentioned, i 58 THE CASE OF r &c. That then every of the said offenders shall be * judged a felon, &c. And if any person or persons 6 unlawfully, and without authority, by ringing of any ' bell or bells, sounding of any trumpet, drum, horn, or < other instrument, or by firing of any beacon, or by ' malicious speaking of any words, or making any out- ' cry, or by setting up or casting of any bill or writing, or 6 by any other deed or act, shall raise, or cause to be ' raised, any persons to the number of twelve, or above, 4 to the intent that the same persons should do or put in s ure any of the acts above mentioned, and that the persons ' so raised and assembled, after commandment given in ( form aforesaid, shall make their abode together in form ' as is aforesaid, or in forcible manner put in ure any of 4 the acts aforesaid, that then all and singular persons by 4 whose speaking, deed, act, or other the means above ' specified, to the number of twelve so raised, shall be ' adjudged felons. And if the wife, servant, or other 6 persons shall any way relieve them that be unlawfully * assembled, as is aforesaid, with victuals, armours, ' weapons, or any other thing, that then they shall be 6 adjudged felons. And if any persons above the number 4 of two, and under the number of twelve, shall practice 6 or put in ure any of the things above mentioned, and! ' being commanded by a justice of peace, &c, to retire, &c.,| < and they make their abode by the space of one hour] ' together, that then every of them shall suffer imprison- * ment by the space of one year without bail or mainprise, ' and every person damnified shall or may recover his ' triple damages against him ; and every person able, j ' being requested by the King's officers, shall be bound to ' resist them. If any persons to the number of forty or 'above, shall assemble together by forcible manner, ' unlawfully and of their own authority, to the intent to ' put in ure any of the things above specified, or to do BOSAVERN PENLEZ. 59 \ other felonies or rebellious act or acts, and so shall ' continue together by the space of three hours after f proclamation shall be made at or nigh the place where 1 they shall be so assembled, or in some market-town I thereunto next adjoining, and after notice thereof to j them given, then every person so willingly assembled in ' forcible manner, and so continuing together by the space I of three hours, shall be adjudged a felon. And if any copyholder or farmer being required by any of the ' King's officers having authority, to aid and assist them ' in repressing any of the said offenders do refuse so to ' do, that then he shall forfeit his copyhold or lease, only 6 for term of his life/ Some well-meaning honest Jacobite will perhaps object that this last statute was enacted in a Popish reign ; but he will please to observe, that it is even less severe than that of Edward VI., to which I shall add, that by the 1st of Queen Elizabeth, chap. 16, this very Act of Queen Mary was continued during the life of Queen Elizabeth, and to the end of the parliament then next following. Having premised thus much, we will now examine the statute of George I., commonly called the Eiot Act; which hath so often been represented either by the most profound ignorance, or the most impudent malice, as unconstitutional, unprecedented, as an oppressive inno- vation, and dangerous to the liberty of the subject. By this statute all persons to the number of twelve or more, being unlawfully, riotously, and tumultuously assembled together, to the disturbance of the public peace, and not dispersing themselves within an hour after the proclamation is read to them by a proper magistrate, are made guilty of felony without benefit of clergy. Secondly. The statute gives a power to all magistrates and peace officers, and to all persons who are by such magistrates and peace officers commanded to assist them, 60 THE CASE OF to apprehend all such persons so continuing together as above after the proclamation read, and indemnifies the j said magistrates and peace officers, and all their assist- ants, if in case of resistance any of the rioters should be hurt, maimed, or killed. Thirdly. It is enacted, that if any persons unlawfully, riotously, and tumultuously assembled together, to the disturbance of the public peace, shall unlawfully and with force demolish or pull down, or begin to demolish or pull down any church or chapel, or any building for religious worship certified and registered, &c, or any dwelling-house, barn, stable, or other out-house, that then every such demolishing, or pulling down, or be- \ ginning to demolish or pull down, shall be adjudged felony without benefit of clergy. Fourthly. If any persons obstruct the magistrate in reading the proclamation, so that it cannot be read, such obstruction is made felony without clergy; and the continuing together, to the number of twelve, after such let or hindrance of reading the proclama- tion, incurs the same guilt as if the proclamation had really been read. These are all the penal clauses in the statute. I observe then that this law cannot be complained against as an innovation : for as to that part of the statute by which rioters, who continued together for the space of an hour, after they are commanded by the magistrate to disperse, are made guilty of felony without benefit of clergy, what does it more than follow the precedents of those laws which were en- acted in the time of Edward VI., Queen Mary, and Queen Elizabeth ? And if the law now under our consideration be a little more severe than one of the former acts, it must be allowed to be less severe than the other. BOSAVERN PENLEZ. 61 Indeed this power of the magistrates in suppressing all kind of riots hath been found so necessary, that from the second year of Edward III. even down to these days, the legislature hath from time to time more and more increased it. Of such consequence hath this matter appeared, and so frequently hath it been under the consideration of parliament, that I think there are almost twenty statutes concerning it. And upon the statute of 13 H. IV. cap. 7, by which the justices, sheriff, &c, are empowered and ordered to suppress all riots, it hath been holden, that not only the justices, &c, but all who attended them, may take with them such weapons as shall be necessary to enable them effectually to do it; and that they may justify the beating, wounding, and even killing such rioters as shall resist or refuse to surrender them- selves.* As to that branch of the statute by which demolishing, &c, houses, &c, is made felony, the offence, instead* of being aggravated, seems to be lessened, namely, from treason into felony ; according to the opinion of Judge Walmsley in Popham's Reports, and of Lord Chief Justice Hale in his Pleas of the Crown, f It is true, as that learned judge observes, :{: the statutes of Edward or Mary did not require (nor doth that of George I. require) that the rioters should be in manner of war arrayed. But how little of this array of war was necessary upon the head of the constructive treason, must have appeared from the cases I have mentioned ; in one of which the Insignia Belli were a few aprons carried on staves. § In another they had a trumpet, and a cloak carried upon a * Paph. 121. 2 And. 67. Hawk. lib. i. cap. 65, f. 21, &c. f Vol. i. 134. I Vol. i. 154. ■ § Kel. 70. 62 THE CASE OF pole,* and in others, as appears, there were no such insignia at all. Again. Upon the indictment of treason any overt- act would be sufficient; but here the offence is restrained to such acts as most manifestly threaten, not only the public peace, but the safety of every individual. How then can this statute be said, in the second place, to be oppressive ? Is it not rather the most necessary of all our laws, for the preservation and protection of the people ? The houses of men are in law considered as the castles of their defence ; and that in so ample a manner, that no officer of justice is empowered by the authority of any mesne civil process to break them open. Nay, the defence of the house is by the law so far privileged beyond that of the person, that in the former case a man is allowed to assemble a force, which is denied him in the latter; and to kill a man who attacked your house was strictly lawful, whereas some degree of guilt was by the common law in- curred by killing him who attacked your person. To burn your house (nay, at this day to set fire to it) is felony without benefit of clergy. To break it open by night, either committing a felony, or with intent to commit it, is burglary. To break it open by clay, and steal from it the value of five shillings, or privately to steal from any dwelling- house to the value of forty shillings, is felony with- out benefit of clergy. Is it then an unreasonable or oppressive law, to prohibit the demolishing or pulling down your house, and that by numbers riotously and tumultuously assembled, under as severe a penalty ? Is not breaking open your doors and demolishing your * 2 And. 2. BOSAVEBN PENLEZ. . 63 house, a more atrocious crime in those who commit it, and much more injurious to the person against whom it is committed, than the robbing it forcibly of goods to the value of five shillings, or privately to the value of forty ? If the law can here be said to be cruel, how much more so is it to inflict death on a man who robs you of a single farthing on the highway, or who privately picks your pocket of thirteen pence ? But I dwell, I am afraid, too long on this head. For surely no statute had ever less the mark of oppression ; nor is any more consistent with our constitution, or more agreeable to the true spirit of our law. And where is the danger to liberty which can arise from this statute ? Nothing in reality was ever more fallacious or wicked than this suggestion. The public peace and the safety of the individual are indeed much secured by this law ; but the government itself, if their interest must be or can be considered as distinct from, and indeed in opposition to, that of the people, acquires not by it the least strength or security. And this, I think, must sufficiently appear to every one who considers what I have said above. For surely there is no lawyer who can doubt, even for a single moment, whether any riotous and tumultuous assembly, who shall avow any design directly levelled against the person of the King or any of his counsellors, be high treason or not, whether, as Lord Hale says, the assembly were greater or less, or armed or not armed. And as to the power of the magistrate for suppressing such kinds of riots, and for securing the bodies of the offenders, it was altogether as strong before as it is now. It seems, therefore, very difficult to see any evil intention in the makers of this Act, and I believe it will be as difficult to show any ill use that hath been made, or attempted to be made of it. In thirty-four years I 64 THE CASE OF remember to have heard of no more than two prosecu- tions upon it ; in neither of which any distinct interest of the government, or rather, as I suppose is meant, of the governors, was at all concerned. And to evince how little any such evil use is to be apprehended at present, I shall here repeat the sentiments of our present excellent Lord Chief Justice, as I myself heard them delivered in the King's Bench, viz., that the branch of the statute which empowers magistrates to read the proclamation for the dispersing rioters was made, as the preamble declares, on very important reasons, and intended to be applied only on very dangerous occasions ; and that he should always regard it as a very high crime in any magistrate, wantonly or officiously to attempt to read it on any other. So much for this law, on which I have dwelt perhaps longer than some may imagine to be necessary ; but surely it is a law well worthy of the fullest justification, and is altogether as necessary to be publicly and indeed universally known, at a time when so many wicked acts are employed to infuse riotous principles into the mob, and when they themselves discover so great a forwardness to put these principles in practice. I will now proceed to the fact of the 1 late riot, and to the case which hath been so totally misrepresented. Both of which I shall give the public from the mouths of the witnesses themselves. Middlesex, The information of Nathanael Munns, one to wit. of the beadles of the Dutchy-liberty of Lancaster. " This informant on his oath saith, that on Saturday, the 1st day of July last, this informant was sum- moned to quell a disturbance which was then in the Strand, near the New Church, where a large mob was assembled about the house of one Owen, the cause of BOSAVERN PENLEZ. 65 which, this informant was told, was, that a sailor had been there, robbed by a woman. When this informant first came up, the populace were crying out, * Pull down ' the house, pull down the house!' and were so very outrageous, that all his endeavours, and those of another beadle of the same liberty, to appease them, were vain. This informant, however, attempted to seize one of the ringleaders, but he was immediately rescued from him, and he himself threatened to be knocked down; upon which this informant sent for the constables, and soon after went to his own home. And this informant saith, that between eleven and twelve the same evening two of the aforesaid rioters, being seized by the constable, were delivered into the custody of this informant, who confined them in the night prison of the said liberty, which night prison is under this informant's house. And this informant further saith, that on the succeed- ing night, being Sunday, the 2nd day of July, about twelve at night, a great number of the mob came to this informant's house, and broke open the windows, and entered thereat, seized his servant, and demanded the keys of the prison, threatening to murder her if she did not deliver them; but not being able to procure the same, they wrenched the bars out of the windows, with which, as this informant has been told, and verily believes, they broke open the prison, and rescued the prisoners. And this informant further saith, that he was the same evening at the watch-house of the said liberty, where two other prisoners were confined for the said riot, and saith that a very great mob came to the said watch- house, broke the windows of the same all to pieces, demanding to have the prisoners delivered to them, threatening to pull the watch-house down if the said prisoners were not set at liberty immediately ; after which they forced into the said watch-house, and rescued the K 66 THE CASE OF prisoners. And this informant further saith, that he apprehends himself to have been in the most imminent danger of his life, from the stones and brickbats thrown into the windows of the said watch-house by the said mob, before they forced the same. Nathanael Munns, Sworn before me, HENBY FIELDING. Middlesex, The information of John Carter, one of the to wit. constables of the Dutchy-liberty of Lan- caster. This informant upon his oath saith, that on Saturday, the 1st of July, between the hours of seven and eight in the evening, he was present at the house of one Owen, in the Strand, where there were a great mob at that time assembled, which filled up the whole space of the street for near two hundred yards ; and saith, that the said house was then broke open, and the mob within it were demolishing and stripping the same ; that the windows of the said house were all broke to pieces, and the mob throwing out the goods, which they soon after set fire to, and consumed them in the street ; and saith, that he believes there were near two waggon loads of goods consumed, whiqh caused so violent a flame, that the beams of the houses adjoining were so heated thereby, that the inhabitants were apprehensive of the utmost danger from the fire, and sent for the parish engines upon that occasion, which not being immediately to be procured, several firemen attended, by whose assistance, as this informant verily believes, the fire was prevented from doing more mischief. Upon this, this informant, not daring himself to oppose the rage and violence of the mob, and not being able to find any magistrate in town, BOSAVERN PENLEZ. 67 applied to General Campbell, at Somerset House, for the assistance of the guards there, who presently detached a corporal and twelve men, upon the approach of whom, the word was given by the mob to quit the house, which was immediately done by all except two, whom this informant, by the assistance of the guards, seized upon, and presently conveyed them safe to the night prison of the liberty aforesaid. The mob, however, without doors, rather increased than diminished, and continued in a very riotous and tumultuous manner, insomuch that it was thought necessary to apply for a further guard, and accordingly an officer and a considerable body of men, to the number, as this informant believes, of forty, was detached from the tilt-yard ; but the mob, far from being intimidated by this reinforcement, began to attack a second house, namely, the house of one Stanhope, throwing stones, breaking the windows, and pelting, not only the sentinels who were posted before the door, but the civil as well as the military officers. And this informant further saith, that though by the interposition of the soldiers, the mob were prevented from doing further mischief that night, yet they continued together till he was relieved by another peace officer, which was not till twelve at night ; nor was the said mob, as this informant has heard, and verily believes, dispersed until between two and three in the morning. And this informant further saith, that on Sundaij, the 2nd July, being the succeeding day, he was called out of his bed on account of the re-assembling of the mob before the house of Stanhope, which they had attacked the night before. That upon his arrival there, he found a vast mob got together, the house broke open and demolished, and all the goods there- of thrown into the street and set on fire ; and saith, that the said fire was larger than that the preceding 68 THE CASE OF night. That he was then applied to by Mr. Wilson, woollen-draper, and principal burgess of the said liberty, and one Mr. Acton, another woollen- draper, both of whom expressed the greatest apprehension of danger to the whole neighbourhood, and desired this informant immediately to apply to the tilt-yard for a number of soldiers, which he accordingly did; but being sent by the officer to a magistrate, to obtain his authority for the said guard, before he could obtain the same, Mr. Welch, high-constable of Holborn division, procured the said guard, by which means' the aforesaid rioters were soon after dispersed. John Carter. Sworn before me, H. FIELDING. Middlesex, The information of James Cecil, one of the to wit. constables of the parish of St. George the Martyr, in the said county. This informant upon oath saith, that on the 3rd of July last, he was ordered by Justice Fielding to attend the prisoners to Newgate. That though an officer, with a very large guard of soldiers, attended upon the said occasion, it was not without the utmost difficulty that the said prisoners were conveyed in coaches through the streets, the mob frequently endeavouring to break in upon the soldiers, and crowding towards the coach doors. And saith, that he seized one of the most active of the mob, and carried him before the said justice, who, after having reprimanded, dismissed him. And further this informant saith, that as he passed near the Old Bailey with the aforesaid prisoners, he saw a great mob assembled there, who, as this informant was then BOSAVERN PENLEZ. 69 acquainted, had been breaking the windows of some house or houses there ; and saith, that several of the said mob were in sailors' habits, but upon the approach of the soldiers they all ran away. James Cecil. Middlesex, The information of Saunders Welsh, to wit, gentleman, high- constable of Holborn division, in the said county. This informant saith, that on Sunday morning, about ten of the clock, on the 2nd of July last, one Stan- hope, who then kept a house in the Strand, near the New Church, came to this informant and told him. that a house had been demolished the night before in the Strand by a great mob, and that he had great reason to fear that the said mob would come and demolish his house, they having threatened that they would pull down all bawdy houses. Upon which this informant directed the said Stanhope to apply to a magistrate, telling him that he, this informant, would conduct himself upon the magistrate's directions. Upon which the said Stanhope departed, and returned no more to this informant. And this informant saith, that as he was returning the same evening between the hours of eleven and twelve, from a friend's house in the City, as he passed through Fleet- street he perceived a great fire in the Strand, upon which he proceeded on till he came to the house of one Peter Wood, who told this informant that the mob had demolished the house of Stanhope, and were burning his goods, and that they had threatened, as soon as they had finished their business there, that they would come and demolish his house likewise, and prayed the assistance of this informant. Upon which this informant, 70 THE CASE OF despairing of being able to quell the mob by his own authority, and well knowing the impossibility of pro- curing any magistrate at that time who would act, applied to the tilt-yard for a military force, which with much difficulty he obtained, having no order from any justice of peace for the same. And this informant saith, that having at last procured an officer with about forty men, he returned to the place of the riot ; but saith, that when he came to Cecil- street end, he prevailed upon the officer to order his drum to beat, in hopes, if possible, of dispersing the mob without any mischief ensuing. And this informant saith, that when he came up to the house of Peter Wood, he found that the mob had in a great part demolished the said house, and thrown a vast quantity of his goods into the street, but had not perfected their design, a large parcel of the goods still remaining in the house, the said house having been very well furnished. And this informant says, that he hath been told there was a debate among the mob concerning burning the goods of that house likewise, as they had served those of two other houses. And this informant says, that had the goods of the said house been set on fire, it must have infallibly have set on fire the houses on both sides, the street being there extremely narrow, and saith, that the house of Messrs. Snow and Denne, the bankers, is almost opposite to that of Peter Wood. And this informant saith, that at his coming up, the mob had deserted the house of the said Peter, occasioned, as he verily believes, and hath been informed, by the terror spread among them from beating the drum as aforesaid, so that this informant found no person in the aforesaid house, save only Peter Wood, his wife, and man-servant, and two or three women who appeared to belong to it, and one Lander, who was taken by soldier in the upper part of the house, and who, it BOSAVERN PENLEZ. 71 afterward appeared at his trial, to the satisfaction of the jury, came along with the guard. And this informant further says, that the said rioters not immediately dispersing, several of them were apprehended by the soldiers, who being pro- duced to Peter Wood, were by him charged as principally concerned in the demolition of his house, upon which they were delivered by this informant to a constable of the Duchy-liberty, and were by that constable conveyed, under a guard of soldiers, to New Prison. And this informant further saith, that he remained on the spot, together with part of the guards, till about three of the clock the next morning, before which time the mob were all dispersed, and peace again restored. And this informant further saith, that on the Monday morning, about twelve of the clock, he attended H. Fielding, Esq., one of His Majesty's Justices of the Peace for the County of Middlesex, who had been out of town during all the preceding riot, and acquainted him with it. That immediately the said justice sent an order for a party of the guards to conduct the aforesaid prisoners to his house, the streets being at that time full of mob, assembled in a riotous and tumultuous manner, and danger of a rescue being apprehended. And saith, that the above mentioned prisoners, together with Bosavern Penlez, who was apprehended by the watch in Carey- street, were brought before the said justice, who, after hearing the evidence against them, and taking the depositions thereof, committed them to Newgate. And this informant saith, that whilst he attended before the said justice, and while the prisoners were under examina- tion, there was a vast mob assembled, not only in Bow- street, but many of the adjacent streets, so that it was difficult either to pass or repass. And further saith, that 72 THE CASE OF he, this informant, received several informations that the mob had declared that, notwithstanding what had been done, they intended to carry on the same work again at night. Upon which, this informant was, by the said justice, despatched to the Secretary of War, to desire a reinforcement of the guard. And this informant further saith, that he was present when the said justice, from his window, spoke to the mob, informed them of their danger, and exhorted them to depart to their own habita- tions : for which purpose, this informant likewise went among them, and entreated them to disperse, but all such exhortations were ineffectual. And this informant further saith, that he was present at the house of the said justice, when several informations were given, that a body of sailors, to the number four thousand, were assembling themselves at Tower- hill, and had declared a resolution of marching to Temple-Bar, in the evening. And so riotous did the disposition of the mob appear that whole day, to wit, Monday, that numbers of persons, as this in- formant hath been told, removed their goods from their own houses, from apprehension of sharing the fate of Owen, Stanhope and Wood. To obviate which danger, the aforesaid justice, the officer of the guard and this informant, sat up the whole night, while a large party of soldiers were kept ready under arms, who with^the peace-officers patrolled the streets where the chief danger was apprehended; by means of all which care the public peace was again restored. Saunders Welch. Sworn before me, HENKY FIELDING. BOSAVERN PENLEZ. 73 Middlesex, The information of Samuel Marsh, Edward to wit, Fritter, Eobert Oliver, and John Hoare. Samuel Marsh, of St. Clement Danes, in the said county, labourer, one of the watchmen of St. Dunstan's, in the West, in the City of London, maketh oath, that on the 3rd of July last, as he was going his rounds, a little after one in the morning, one Mr. Phillip Warwick, an engraver by trade, who then lived at Pimlico, near Buckingham-house, from whence he is since removed, came to this informant in Bell-yard, opposite the Appollo-passage, and said, there was a man above who had a great bundle of linen, which he (Warwick) thought the said man had stolen, and desired this informant to take care of him. And further acquainted this informant, that the said man told him that the linen which he then had in the bundle was his wife's, which said Warwick did not believe to be true. And this informant further saith, that when he had received this account, he went directly to the place where the said man was ; and saith, that the said man, before this informant came up to him, had thrust most of the above said linen into his bosom and pockets; and saith, that just as this informant came up to him, and called out to him saying, friend, here, come and take the cap you have dropped, the said man scrambled up the rest of the things, and ran away as fast as he could all up Bell-yard ; upon which this informant ran after him, and called to Edward Fritter, another watch- man, to stop him. And this informant farther saith, that the said man, being afterwards taken by Fritter, and in custody of him and this informant, being asked by them to whom the said linen belonged, declared that they belonged to the b his wife, who had pawned all his clothes ; and that he had taken away these that she L 74 „ THE CASE OF might not pawn them likewise. To which this informant answered, that answer would not do ; for that he was resolved to have a better answer before he left him. And this informant saith, that he and the said Fritter then carried the said man to the watch-house, where he sat down on a bench. And this informant saith, that whilst the said man sat there, several persons came into the watch-house unknown to this informant, one of whom said to the prisoner, ' You son of a b pull the * things out of your bosom and out of your pockets, ' and don't let the constable find them upon you, unless 'you have a mind to hang yourself.' Upon which the prisoner pulled out the linen from his bosom and pockets, and laid it upon the bench, and saith that the said linen was afterwards delivered to Mr. Hoare, the constable. And further saith, that the aforesaid man, who was apprehended as above said, was the same Bosavern Penlez, who was afterwards convicted of the riot at the Old Bailey, and executed for the same. And further saith, that he believes the said Penlez was then a little in liquor, but by no means dead drunk ; for that he talked and behaved very rationally all the time he was in the said watch-house, And further saith, that Penlez, when he was in the watch-house, said, that the woman to whom the linen belonged was not his wife ; for that he was an unfortunate young fellow, and had kept company with bad women, and that he had been robbed by one of them of fifteen shillings, and had taken away her linen out of revenge. Edward Fritter, of the precinct of Whitefriars, in the City of London, shoemaker, one of the watchmen of the liberty of the rolls, maketh oath, that upon the 3rd of July last, a little after one in the morning, as he was at his stand at the upper end of Bell-yard, Samuel Marsh, another watchman, called out to him, ' Stop that BOSAVERN PENLEZ. 75 man before you : stop that man before you. And this informant saith, that when he heard these words, the said man had just passed by him, making off as fast as he could ; upon which this informant ran after him, and at about an hundred yards' distance overtook him, and pushed him up against the rails in Carey-street. And this informant then said to him, ' So, brother, what ' is all this you have got here ?' To which the man answered, ' I am an unfortunate young man, and have * married one of the women of the town, who hath pawned I all my clothes, and I have got all her linen for it/ And this informant saith, that the said man had at that time some linen under his arm. Soon after which, the said man, who, as this informant saith, was Bosavem Penlez, was carried to the watch-house, where this informant was present when all passed that informant Marsh hath sworn. And this informant hearing the information of Marsh read, declares, that all which is there related to have passed, is true. Robert Oliver, of the liberty of the rolls, shoemaker, and beadle of that liberty, maketh oath and saith, that he was present when Bosavem Penlez was brought into the watch- house belonging to the said liberty, on the 3rd of July last, between one and two in the morning ; and saith, that he was present in the said watch-house upon his duty all the time that the said Penlez staid there ; and upon hearing the infor- mation of Marsh read to him, this informant, he, this infor- mant, upon his oath confirms the same in every particular. John Hoare, of the liberty of the rolls aforesaid, victualler, then one of the constables of the liberty of the rolls, maketh oath and saith, that at two in the morning, on the 3rd of July, he was called by one of the watchmen of that liberty, and informed that a thief was apprehended and confined in the watch-house ; upon which this informant went directly thither, and found Bosavem Penlez and the linen lying 76 THE CASE OF on the bench, as mentioned in Marsh's information. And this informant further says, that he then ex- amined said Penlez how he came by that linen, to which the said Penlez answered, that he had taken up the said linen in the street, to which this infor- mant answered, that if he (Penlez) could give no better account, he must secure him till the morning. Then this informant asked him, if he could send to any one who would give him a character. Upon which Penlez, after some hesitation, mentioned the name of a barber who lived next to the Bunch of Grapes in the Strand, who was sent to, and refused to come, And this informant saith, that he then proposed to Penlez to send for some other person; but that the said Penlez mentioned no other person. Upon which this informant carried the said Penlez to New-prison, and there delivered him into custody. And this informant further saith, that he attended the next day before H. Fielding, Esq; one of His Majesty's Justices of the peace for the said county, when the said Penlez was examined, and the aforesaid linen was produced by this informant. To wit; ten laced caps, four laced handkerchiefs, three pair of laced ruffles, two laced clouts, five plain handkerchiefs, five plain aprons, and one laced apron, all which the wife of Peter Wood swore to be her property. And this informant saith, that Penlez being asked by the justice, how he came by the said linen, answered, he had found them ; and could not, or would not give any other account. The mark of Sam. Marsh. Ed. Fritter. Rob. Oliver. John Hoare. Sworn before me, H. FIELDING. BOS A VERN PENLEZ. 77 Middlesex, to wit. Kobert Oliver aforesaid further on his oath says, that when Penlez was examined before the justice, he solemnly denied that he was in the house of Peter Wood, or near it. Rob. Oliver. Sworn before me, H. FIELDING. Now upon the whole of this evidence, which I have taken the pains to lay before the public, and which is the evidence of persons entirely disinterested and of undoubted credit, I think it must be granted by every impartial and sensible person : 1. That the riot here under consideration was of a very high and dangerous nature, and far from deserving those light or ludicrous colours which have been cast upon it. 2. That the outrages actually committed by this mob, by demolishing the houses of several people, by cruelly and barbarously misusing their persons, by openly and audaciously burning their goods, by breaking open prisons and rescuing offenders, and by resisting the peace-officers, and those who came to their assistance, were such as no government could justify passing over without some censure and example. 3. That had not Mr. Welch (one of the best officers who was ever concerned in the execution of justice, and to whose care, integrity and bravery the public hath, to my knowledge, the highest obligations) been greatly active in the discharge of his duty; and had he not arrived time enough to prevent the burning of that pile of goods which was heaped up before Wood's 78 THE CASE OF house, the most dreadful consequences must have en- sued from this riot. For not to mention the mischiefs which must necessarily have happened from the fire in that narrow part of the town, what must have been the consequence of exposing a banker's shop to the greediness of the rabble ? Or what might we have reasonably apprehended from a mob encouraged by such a booty, and made desperate by such atrocious guilt ? 4. I think it may be very fairly inferred, that the mob, which had already carried on their riotous proceedings during two successive nights, and who, during the whole day on Monday, were in motion all over the town, had they not been alarmed and intimidated by the care of the magistrate, would have again repeated their outrage, as they had threatened on Monday night. And had such a riot continued a little longer, no man can, I think, foresee what it might have produced. The cry against bawdy houses might have been easily converted into an out- cry of a very different nature, and goldsmiths might have been considered to be as great a nuisance to the public as whores. 5. The only remaining conclusion which I shall draw, is, that nothing can be more unjust, or indeed more absurd, than the complaint of severity which hath been made on this occasion. If one could derive this silly clamour from malevolence to the government, it might be easily converted into the most delicate of compliments. For surely those must afford very little cause of complaint, whose enemies can find no better object of their censure than this. To say the truth, the govern- ment is here injudiciously attacked in its most defensible part. If it be necessary, as some seem to think, to find fault with their superiors, our administration is more liable to the very opposite censure. If I durst presume to look into the royal breast, I might with certainty affirm, BOS AVE RN PENLEZ. 79 that mercy is there the characteristic. So truly is this benign prince the father of his people, that he is never brought, without paternal reluctance, to suffer the extremity of justice to take place. A most amiable excess, and yet an excess by which, I am afraid, subjects may be as liable to be spoiled as children. But I am willing to see these clamours in a less culpable light, and to derive them from a much better motive ; I mean from a zeal against lewd and disorderly houses. But zeal in this case, as well as in all others, may hurry men too far, and may plunge them headlong into the greater evils, in order to redress the lesser. And surely this appears to be the case at present, when an animosity against these houses hath made man blind to the clearest light of evidence ; and impelled them to fly in the face of truth, of common sense, I might say yet more, and all in the behalf of a licentious, outrageous mob, who, in open defiance of law, justice or mercy, committed the most notorious offences against the persons and properties of their fellow- subjects, and who had undoubtedly incurred the last and highest degree of guilt, had they not been happily and timely prevented. When I mention this zeal as some kind of excuse or mitigation, I would be understood to apply it only to those persons who have been so weak (at least) to espouse the cause of these malefactors. As to the rioters themselves, I am satisfied. they had no such excuse. The clamour against bawdy houses was in them a bare pretence only. Wantonness and cruelty were the motives of most; and some, as it plainly appeared, converted the inhuman disposition of the mob to the very worst of purposes, and became thieves under the pretence of reformation. How then is it possible for any man in his senses to express a compassion for such offenders, as for men, 80 THE CASE OF who, while they are doing an illegal act, may yet be supposed to act from a laudable motive ? I would ask men this question. By whom are these houses frequented and supported ? Is it not by the young, the idle, and the dissolute ? — This is, I hope, true ; no grave zealot will, I am convinced, assert the contrary. Are these then the people to redress the evil ? Play-houses have been in a former age reputed a grievance ; but did the players rise in a body to demolish them ? Gaming-houses are still thought a nuisance; but no man, I believe, hath ever seen a body of gamesters assembled to break them open, and burn their goods. It is indeed possible, that after a bad run of luck they might be very well pleased with an opportunity of stealing them. The nuisance which bawdy houses are to the public, and how far it is interested in suppressing them, is not our present consideration. The law clearly considers them as a nuisance, and hath appointed a remedy against them ; and this remedy it is in the power of every man who desires it to apply. But surely it will not be wished by any sober man, that open illegal force and violence should be with impunity used to remove this nuisance ; and that the mob should have an uncontrolled jurisdiction in this case. "When, by our excellent constitution, the greatest subject, no, not even the King himself, can, without a lawful trial and conviction, divest the meanest man of his property, deprive him of his liberty, or attack him in his person ; shall we suffer a licentious rabble to be accuser, judge, jury, and executioner; to inflict corporal punishment, break open men's doors, plunder their houses, and burn their goods ? I am ashamed to proceed further in a case so plain, where the absurdity is so monstrous, and where the consequences are so obvious and terrible. As to the case of the sufferer, I shall make no remarks. BOS AVE RN PENLEZ. 81 Whatever was the man's guilt, he hath made all the atonement which the law requires, or could be exacted of him ; and though the popular clamour made it necessary to publish the above depositions, nothing shall come from me to add to, or to aggravate them. If, after perusing the evidence which I have here produced, there should remain any private compassion in the breast of the reader, far be it from me to endeavour to remove it. I hope I have said enough to prove that this was such a riot as called for some example, and that the man who was made that example deserved his fate. Which, if he did, I think it will follow, that more hath been said * and done in his favour than ought to have been; and that the clamour of severity against the government hath been in the highest degree unjustifiable. To say truth (as I have before hinted) it would be more difficult to justify the lenity used on this occasion. The first and second day of this riot, no magistrate, nor any other higher peace officer than a petty constable (save only Mr. Welch) interfered with it. On the third day, only one magistrate took upon him to act. When the prisoners were committed to Newgate, no public prosecu- tion was for some time ordered against them ; and when it was ordered, it was carried on so mildly, that one gf the prisoners (Wilson) being sick in prison, was, though contrary to law, at the desire of a noble person in great power, bailed out, when a capital indictment was then found against him. At the trial, neither the attorney- nor solicitor-general, nor even one of the King's council, appeared against the prisoners. Lastly, when two were convicted, one only was executed: and I doubt very much whether even he would have suffered, had it not * He was buried by a private subscription, but not at the public expense of the parish of St. Clement Danes, as hath been falsely asserted. M 82 THE CASE OF BOSAVERN PENLEZ. appeared that a capital indictment t for burglary was likewise found by the grand jury against him, and upon such evidence as I think every impartial man must allow would have convicted him (had he been tried) of felony at j least. Thus I have finished this ungrateful task, which I thought it the more incumbent on me to undertake, as the real truth of this case, from the circumstance mentioned at the bottom of this page, was known only to myself, and a very few more. This I thought it my duty to lay before some very noble persons, in order to make some distinction between the two condemned prisoners, in favour of Wilson, whose case to me seemed to be the object of true compassion. And I flatter myself that it might be a little owing to my representation, that the distinction between an object of mercy, and an object of justice at last prevailed, to my satisfaction, I own entirely, and I hope, now at last, to that of the public. * Upon this indictment he was arraigned, hut as the judge said as he was already capitally convicted for the same fact, though of a different offence, j there was no occasion of trying him again; by which means the evidence which I have above produced, and which the prosecutor reserved to give on this indictment, was never heard at the Old Bailey, nor in the least known t