In order to shew the fraud, evidence was offered of Hathaway's conduct after the time mentioned in the indictment. This was objected to. Again, under the auspices of Holt, common sense obtained a victory.

Serjt. Jenner." My Lord, the record bears date the first day of Term: all this is since the record."

now.

Holt.-"It is to prove the imposture committed before What Mr. Kenry says of his pretending to fast twelve weeks, though two or more be not within the time of the information, I hope they may give it as evidence subsequent to prove what was done before . . . . It is an evidence of his cheating since that time, and that out of the information; but it is evidence also to prove that his pretended fasting was a mere deceit; for he then pretended to have fasted ten weeks before he came thither, and after pretends to continue fasting in the same manner. If that be proved to be a fraud, it is strongly to be inferred that this pretended fasting before was

so too."

Serjt. Jenner." But then they may not give evidence in matter after."

Holt.-"Matter afterwards, that proves a thing done before; for if a confession be made subsequent to an indictment for à crime, shall not that confession after be brought as evidence of the thing done before? Sure, it may."

Serjt. Jenner." And will that prove what was before?"

L. C. J.-"It is certainly so. The thing is, whether I can give in evidence anything after to prove what was done before? If he pretends to fast twelve weeks, ten weeks before he came there, and the two weeks after, he did not fast but only pretended it: whether what he did after, be not evidence of what he did before? Sure, it is. For he that cannot hold out fasting two weeks, but was glad to eat, though he pretended to fast, may strongly be presumed to have eaten during the ten weeks, though then he pretended to fast” (m).

(m) State Trials, vol. 14, p. 665.

I have quoted this decision at length, because I have never seen it alluded to by any text writer, and because it goes far to settle a question of considerable importance. Holt's ruling is inconsistent with the decision of Lord Ellenborough in Taverner's case, but agrees with the decision cited by the same judge in Tattershall's case, where all the judges held, that the conduct of the prisoner on one occasion might be laid before the jury as a fact from which they might infer his knowledge on another. So, in Roberts's case (n), where the prisoners were indicted for a conspiracy to defraud tradesmen, by causing themselves to be believed persons of large property, Lord Ellenborough allowed evidence to be given of representations made to tradesmen at a time not mentioned in the indictment. So, on a charge of writing a threatening letter, other letters, written by the prisoner, may be read to explain the letter for which he is indicted (o). So, where the question was, whether the advice given by the prisoners to the prosecutor, to give some money to the mob, was bonâ fide advice, or merely a colour for robbery; it was held, that the conduct of the mob before and after that transaction, when any of the prisoners were present, in the course of the same day, was evidence (p).

Hathaway was convicted.

The cruel doctrine, of which so revolting an illustration was given by Chief Justice Kelyng, in the case of Messenger and Beasley, was again exemplified, though in a less shocking manner, (as the men were pardoned, and their conduct was more violent), in the case of Dammaree and Purchase. It is one of the doctrines laid down by Lord Coke, (3 Inst. 9), "That if any men levy war, to expel strangers, to deliver men out of prisons, to remove counsellors, or against any statute, pretending reformation of their own heads, without (n) 1 Campbell, 399.

(0) Robinson's case, 2 East, 1110.
(p) Winkworth's case, 4 C. & P 444.

warrant, this is levying war against the King, because they take upon them royal authority. There is a diversity between levying war and committing a great riot. For instance, if three or four, or more, rise to pull down an inclosure in Dale . . . this is a riot, and no treason. But if they had risen of purpose to alter religion established within the realm, or to go from town to town generally, pulling down inclosures, this is levying war, though there be no great number of the conspirators, because the pretence is public and general, and not private or particular." The doctrine is vague, cruel, sophistical, pedantic, and absurd, revolting to plain sense and common humanity. It was, however, carefully repeated and deliberately upheld by Lord Ellenborough in Watson's case (q), and must, perhaps, be considered law at this day. Such lasting evils have the conceits of one writer as narrow minded and injudicious as Sir E. Coke, inflicted upon the inhabitants of this country. By the strange perverseness and infatuation, which our barbarous laws engender, the wisdom of Lord Mansfield was obliterated before it had left, unless in our commercial law, any lasting traces in our jurisprudence by his immediate successors, while the savage whimsies of Coke, one of our most barbarous writers, are transmitted from age to age with unabated veneration,-so congenial a soil has absurdity found in our Courts of justice, and so speedily, when liberality and scientific method have been transplanted

(q) "It is not absolutely necessary," said a constitutional and upright judge, "in order to constitute the offence of levying war against the King, that there should be a regular organised force, or that the persons should be in military array. If there is an insurrection, that is, a large rising of the people, in order, by force and violence, to accomplish or avenge, not any private objects of their own, but to effect any great public purpose, that is considered by the law as a levying of war. There must be an insurrection, force must accompany that insurrection, and it must be for an object of a general nature; but if all these circumstances concur, this is quite sufficient to constitute the offence of levying war." He then, in illustration of the doctrine, cites the case of Messenger and Beasley, and that of Dammaree. Bayley's Charge to the Grand Jury, Queen's Bench,

1817.

to that region, have we seen those generous fruits of disinterested learning and capacious thought droop and wither under the influence of that inhospitable climate. Absurd and pedantic maxims have been written by our lawyers on a substance more durable than brass, and the dictates of reason have been traced on the shifting sand, and on the flying waters. Dammaree was tried at the Old Bailey, in 1710, for high treason. He had been the ringleader of the Sacheverell mob (r), when the English people shewed a fanatical zeal for bigotry in the Church and servitude in the State, that have rarely been equalled by the inhabitants of other countries in their struggles for emancipation from evils so detestable. He was tried before Lord Chief Justice Parker, Lord Chief Baron Ward, Mr. Justice Tracy, and Mr. Justice Bury.

General evidence was first given of the acts of the mob, and it was afterwards shewn that Dammaree led on the mob, but there was no attempt to prove any concerted scheme, or any resistance to the troops who were sent to quell the riot. It was shewn that Dammaree took an active part in destroying Daniel Burgess's meeting-house by fire. There was some evidence to contradict this, and to shew that Dammaree was not at the place where the Queen's witnesses swore they saw him; however, the evidence for the prosecution was probably accurate, and evidence was brought to shew that he (Dammaree) was drunk. This evidence, however, the Chief Justice told the jury to disregard. "They take notice of his being in drink; it is reasonable to think it was so; but that is not any excuse at all." Now, it may be quite right to lay down that drunkenness is no legal excuse for crime, and it is not uncommon to hear judges and counsel say, in the strain of those conceits, which, from the time of Lord Coke downwards, have clung like leprosy to the Bar, that one crime is not to be excused by another. But if the question be, whether there

(r) Sacheverell was a poor creature. In one of his printed Sermons he made use of this simile, "Like parallel lines they meet in a common centre!"

has been an intention to levy war against the Queen, which, of course, implies contrivance and preparation, it is difficult to imagine any proposition more ridiculously foolish than the assertion, that proof of the drunkenness of those who are guilty of the acts from which, by a very forced construction, treason is inferred, is to be laid out of the consideration of the jury. Reasonable beings ought surely to be asked, whether they thought a drunken waterman in the Queen's service, and famous in an age of loyal frenzy for loyalty the most extravagant, did mean to levy war against the Queen, and whether his conviction for such an offence, in defiance of all rules of plain sense and probability, would not be a lasting reproach, not, indeed, to English law, but to the tribunals of any country where law was administered on rational principles. Another doctrine is connected with this, so unspeakably absurd that it can hardly be read with patience, but yet it is formally asserted by Lord Coke, and has cost many wretched prisoners their lives; it is this, that if a man engages in an unlawful action, he is criminally responsible for all its consequences; for instance, if a man shoots at his neighbour's chickens (r), and by the merest and most improbable accident happen to kill his neighbour, he is guilty of murder. This is a genuine specimen of English jurisprudence, and I mention it to shew how tenaciously those in high judicial office among us (Lord Mansfield always excepted) have clung to every vestige of barbarity. Even now, I doubt if in any case not affecting life, there are

(r) “As, if a man shoots at a wild fowl, wherein no man hath any property, and by such shooting happens unawares to kill a man, this homicide is not felony, but only a misadventure or chance-medley, because it was an accident that happened in the doing of a lawful act; but if this man had shot at a tame fowl, wherein another had property, but not with intention to steal it, and by such shooting had accidentally killed a man, he would then have been guilty of manslaughter, because done in prosecution of an unlawful action, viz., committing a trespass on another's property; but if he had had an intention of stealing this tame fowl, then such accidental killing of a man would have been murder, because done in prosecution of a felonious intent, viz., an intent to steal." King, C. J., in Coke's case. Hawkins, vol. 1, p. 178.