A True State of the Case of Bosavern Penlez
|A True State of the Case of Bosavern Penlez (1749)
A TRUE STATE OF THE CASE OF BOSAVERN PENLEZ, WHO SUFFERED 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.
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 endeavours 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 disabusing the public, which hath been, in the grossest and wickedest manner, imposed upon, with relation to the case of Bosavern 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 certainly acquainted; and that is my own natural disposition. 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 sedition, 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, instead of remaining an example to incite terror, is recommended 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 something 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 Riot Act, hath lately been represented in a public newspaper.
If this doctrine had been first broached in this paper, the ignorance of it would not have been worth remarking; 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 published twenty years ago, must remember that among the articles exhibited against a former administration, this of passing the Riot 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 formerly 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 entertain 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.
Riots 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.
Such riot is a very high misdemeanor, and to be punished ery 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 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 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 look back and call to his remembrance what that small riot, begun at Dartmouth, in Kent, in the reign of King Richard 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 Richard 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 Richard 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 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 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 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 gaol 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 Richard 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 commissioners to enquire of the same justices and sheriffs defaults in that behalf, and also limited what punishment offenders attainted of riot should sustain. King Henry the Seventh ordained, that such persons as were returned to enquire of riots should have sufficient freehold or copyhold land within the same shire. And that no maintenance should hinder their inquisition. And in the reign of Queen Mary there was a necessary 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. 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 general, and not private in particular.  And this,' says he, 'tho' there be no great number of conspirators, is levying war within the 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 law, and the offenders took upon them the reformation 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, assembled 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,  'that he directed the jury, that he was well satisfied in his own judgement, 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 belonged to the King by his law and justices to correct and reform; and it would be a strange way and mischievous to all people to have such a rude rabble, 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 the great privilege of the people, which is not to be proceeded against, but upon an indictment first found by a grand jury, and after, upon a legal trial by another jury, where the party accused was heard to make his defence; yet, says he, because the Kings of this nation had often-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 ourselves have seen a rebellion raised by gathering 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 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 Recorder of London, and myself, and that this example might have the greater authority, I did resolve 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 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.
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 indicted 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, 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 highways 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.
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 government as King, this shall be intended a levying of war against the King; nor is it material whether they intend 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 first year of Queen Mary, and then it was enacted that 'If any persons to the 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 town corporate, where any such assemblies shall be 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 continue 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, and the offenders therein shall be adjudged felons, and 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 enclosure of any park, or other ground enclosed, or the banks of any fish-pond or pool, or any conduits for water, conduit-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 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 proclamation 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, &c. That then every of the said offenders shall be judged a felon, &c. And if any person or persons 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 outcry, or by setting up or casting of any bill or writing, or by any other deed or act, shall raise, or cause to be raised, any persons to the number of twelve, or above, to the intent that the same persons should do or put in 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 the acts aforesaid, that then all and singular persons by 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 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 adjudged felons. And if any persons above the number of two, and under the number of twelve, shall practice 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 imprisonment 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, 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 other felonies or rebellious act or acts, and so shall continue together by the space of three hours after proclamation shall be made at or nigh the place where they shall be so assembled, or in some market-town thereunto next adjoining, and after notice thereof to them given, then every person so willingly assembled in forcible manner, and so continuing together by the space 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 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 first 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 Riot Act; which hath so often been represented either by the most profound ignorance, or the most impudent malice, as unconstitutional, unprecedented, as an oppressive innovation, 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, to apprehend all such persons so continuing together as above after the proclamation read, and indemnifies the said magistrates and peace officers, and all their assistants, 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 beginning 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 lett or hindrance of reading the proclamation, 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 enacted in the time of Edward the Sixth, 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.
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. 4. 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 themselves. 
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. 
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 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 incurred 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 day, 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 without 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 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 remember to have heard of no more than two prosecutions 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 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, to wit. The information of Nathanael Munns, one 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 summoned 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 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 succeeding 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 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.
- Sworn before me,
- HENRY FIELDING.
Middlesex, to wit. The information of John Carter, one of the constables of the Dutchy-liberty of Lancaster.
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, which 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, 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 Sunday, 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 thereof thrown into the street and set on fire; and saith, that the said fire was larger than that the preceding 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.
- Sworn before me,
- H. FIELDING.
Middlesex, to wit. The information of James Cecil, one of the 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 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, to wit. The information of Saunders Welsh, 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 Stanhope, 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, despairing of being able to quell the mob by his own authority, and well knowing the impossibility of procuring 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 a soldier in the upper part of the house, and who, it 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 produced 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 examination, 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 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 habitations: 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 informant 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.
- Sworn before me,
- HENRY FIELDING.
Middlesex, to wit. The information of Samuel Marsh, Edward Fritter, Robert 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 further 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 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. 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 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 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 Bosavern 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 Bosavern 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 information of Marsh read to him, this informant, he, this informant, 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 Bosavern Penlez and the linen lying on the bench, as mentioned in Marsh's information. And this informant further says, that he then examined 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 informant 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.
Middlesex, to wit.
Robert 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.
- 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 house, the most dreadful consequences must have ensued 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 government 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 look into the royal breast, I might with certainty affirm, 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 men 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, 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. 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 prosecution was for some time ordered against them; and when it was ordered, it was carried on so mildly, that one of 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 appeared that a capital indictment  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 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.
- It may be gathered, perhaps, 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 army. And a lesser number cannot, I think, be well said to be modo guerrino arraiati.
- Hawk. lib. I. cap. 17, sect, 25.
- 3 Inst. 9.
- 3 Inst. 10.
- Kale's History of the Pleas of the Crown, vol. I, p. 134.
- Kel. 71.
- 3 Inst. 10. / 2 And 66. / Poph. 122.
- 2 And 2. / Hale's Hist., vol. I. 125.
- Poph. 121. / 2 And. 67. / Hawk. lib. I. cap, 65, f. 21, &c.
- Vol. I. 134.
- Vol. I. 154.
- Kel. 70.
- 2 And. 2.
- 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.
- Upon this indictment he was arraigned, but as the judge said as he was already capitally convicted for the same fact, though of a different offence, 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 to the public.
The Proceedings of the Old Bailey, 1674-1913: The Ordinary of Newgate's Account, 18th October 1749.