other crimes, committed by armed persons gathered together contrary
to all law, in this and the neighbouring counties, loudly demanded
the justice of the nation; and for that reason his Majesty had
been pleased to entrust his lordship and brethren with his special
commission, that public justice might be done upon the offenders
against the public laws of the kingdom, and that the innocent might be
released from their confinement.
His lordship likewise took notice of the dangerous confederacies that
had been formed for many years past in Sussex and its neighbouring
counties, for very unwarrantable and very wicked purposes; even for
robbing the public of that revenue which is absolutely necessary to its
support, and for defeating the fair trader in his just expectations
of profit; and which, without mentioning more, are the necessary
unavoidable consequences of that practice which now goes under the name
of smuggling; and this, his lordship said, was not all, for this wicked
practice had been supported by an armed force; and acting in open
day-light, in defiance of all the law, to the terror of his Majesty’s
peaceable subjects; and had gone so far in some late instances, as
deliberate murders, attended with circumstances of great aggravation,
in consequence of those unlawful combinations.
His lordship likewise said, that in case of a murder, wherever it
appeared that the fact was committed with any degree of deliberation,
and especially where attended with circumstances of cruelty, the usual
distinction between murder and manslaughter could never take place; for
the fact is, in the eye of the law, wilful murder, of malice prepense;
and involves every person concerned, as well those aiding and abetting
as those who actually commit the fact, in the same degree of guilt.
His lordship was pleased further to take notice, that where a number
of people engage together with a felonious design, every person so
engaged, and present aiding and abetting in the fact, is considered as
a principal in the felony; and the reason the law goes upon is this,
that the presence of every one of the accomplices gives countenance
and encouragement to all the rest; so that consequently the fact is
considered, in the eye of the law, and of sound reason too, as the act
of the whole party, though it be perpetrated by the hands only of one;
for he is considered the instrument by which the others act.
And when we say that the presence of a person at the commission of a
felony will involve him in the guilt of the rest, we must not confine
ourselves to a strict, actual presence as would make him an eye or ear
witness of what passes. For an accomplice may be involved in the guilt
of the rest, though he may happen to be so far distant from the scene
of action, as to be utterly out of sight or hearing of what passes.
For instance; if several persons agree to commit a murder, or other
felony, and each man takes his part: some are appointed to commit the
fact, others to watch at a distance to prevent a surprise, or to favour
the escape of those who are more immediately engaged; the law says,
that if the felony be committed, it is the act of all of them; for
each man operated in his station towards the commission of it, at one
and the same instant. And so much doth the law abhor combinations of
this kind, especially where innocent blood is shed, that a man may, in
judgment of the law, be involved in the guilt of murder, when possibly
his heart abhorred the thoughts of it. For if numbers of people
assemble in prosecution of an unlawful design, with a resolution to
stand by each other against all opposers, and a murder is committed by
one of the party in prosecution of that design, every man so engaged
at the time of the murder, is, in the eye of the law, equally guilty
with him that gave the stroke.
“Many cases might be put which come under this rule. I will confine
myself to a few which the present solemnity naturally suggests.
“For instance: Numbers of people assemble for the purpose of running
uncustomed goods, or for any of the purposes which now go under the
term of smuggling, with a resolution to resist all opposers (and the
riding with firearms and other offensive weapons is certainly an
evidence of that resolution); numbers of people, I say, assemble in
this manner and for this purpose. They are met by the officers of the
revenue; one of the party, _in the prosecution of this unlawful
design_, fires on the King’s officer, and kills him or any of his
assistants: the whole party is, in the eye of the law, guilty of
murder, though their original intention went no further than smuggling;
for that intention being unlawful, the killing in prosecution of
that intent is murder, and every man engaged in it partakes of the
guilt. The act of one, in prosecution of their common engagement, is
considered as the act of all.
“I will go one step further: the party assembled in the manner and for
the purposes I have mentioned, is met by the King’s officers, and an
affray happens between them; during the affray one of the party fires
at the King’s officers, but misses his aim, and kills one of his own
party, perhaps his nearest relation or bosom friend (if people of
that character are capable of true friendship). This is murder in him
and in the whole party too. For if a man upon malice against another
strikes at him and by accident kills a third person, the law, as it
were, transfers the circumstance of malice from him that was aimed at
to him that received the blow and died by it. And consequently, in the
case I have just put, the person who discharged the gun being guilty
of murder, all his accomplices are involved in his guilt; because the
gun was discharged in prosecution of their common engagement, and it is
therefore considered as the act of the whole party.
“What I have hitherto said regards those who are present in the sense I
have mentioned, and abetting the fact at the time of the commission of
it. But there are others who may be involved in the same guilt, I mean
the accessaries before the fact. These are all people who by advice,
persuasion or any other means, procure the fact to be done, but cannot
be said, in any sense, to be present at the actual perpetration of it.
“These persons are involved in the guilt, and liable in the case of
wilful murder to the same punishment as the principal offenders are.
“I am very sensible, gentlemen, that I have been something longer than
I needed to have been, if I had spoken barely for your information. But
on this occasion I thought it not improper to enlarge on some points,
that people may see the infinite hazard they run by engaging in the
wicked combinations I have mentioned: and how suddenly and fatally they
may, being so engaged, be involved in the guilt of murder itself, while
perhaps their principal view might fall very short of that crime.”
His lordship having ended his charge, two bills of indictment were
presented to the grand jury, one for the murder of William Galley,
sen., a custom-house officer in the port of Southampton, and the other
for the murder of Daniel Chater, of Fordingbridge, in the county of
Hants, shoemaker; when, as soon as the grand jury had received the
bills, they withdrew to the council chamber in the North Street; and
the following persons were sworn to give evidence before them, who
immediately after their being severally sworn in court, went and
attended the grand jury, viz., William Steel, alias Hardware, and John
Race, alias Raise (two accomplices in the said murders), Mr. Milner,
collector of the customs at the port of Poole; Mr. Shearer, collector
of the customs at the port of Southampton; William Galley, son of the
deceased William Galley; Edward Holton, George Austin, Thomas Austin,
Robert Jenkes, Joseph Southern, William Garrat, William Lamb, Richard
Kent, Ann Pescod, William Scardefield, Edward Soanes, Mrs. Chater, the
widow of the deceased Daniel Chater, John Greentree, George Poate and
Mr. Brackstone. And then the court adjourned until nine o’clock the
next morning.
* * * * *
_Chichester, Jan. 18, 1748–9._
The judges went to the court this morning about nine o’clock, and the
court being sat, the seven following prisoners, viz., Benjamin Tapner,
John Cobby, John Hammond, William Jackson,[1] William Carter, Richard
Mills the younger and Richard Mills the elder, were put to the bar
(the grand jury having returned both the bills found into court), and
arraigned upon the indictment for the murder of Daniel Chater; the
three first as principals, and the other four as accessaries before the
fact.
The clerk of the arraigns called upon the several prisoners at the
bar to hold up their hands, which being done, he read the indictment
aloud, which was as follows, viz.:--
“That you, Benjamin Tapner, John Cobby and John Hammond, together with
Thomas Stringer and Daniel Perryer, not yet taken, not having the fear
of God before your eyes, but being moved and seduced by the instigation
of the devil, upon the 19th day of February, in the 21st year of his
present Majesty’s reign, with force of arms, at the parish of Harting,
in the county of Sussex, in and upon one Daniel Chater, being then
and there in the peace of God, and his said Majesty, feloniously,
wilfully, and out of your malice aforethought, did make an assault;
and that you, the said Benjamin Tapner, a certain cord or rope made of
hemp, of the value of sixpence, which you the said Benjamin Tapner had
then and there in your hands, about the neck of him the said Daniel
Chater, then and there with force and arms, feloniously, wilfully, and
out of your malice aforethought, did put, bind and fasten; and that
you, the said Benjamin Tapner, with the rope aforesaid by him about
the neck of the said Chater, so put, bound and fastened as aforesaid;
him the said Chater, then and there with force and arms, feloniously,
wilfully, and out of your malice aforethought, did choke and strangle,
of which said choking and strangling of him the said Chater, in manner
aforesaid, he the said Chater did then and there die. And that you
the said John Cobby, and John Hammond, together with Thomas Stringer
and Daniel Perryer, both not yet taken, at the time of the felony and
murder aforesaid by him the said Benjamin Tapner, so feloniously,
wilfully, and out of his malice aforethought, done, perpetrated and
committed, as aforesaid, then and there feloniously, wilfully, and
out of your malice aforethought, were present, aiding, abetting,
comforting and maintaining the said Benjamin Tapner, the said Daniel
Chater in manner and form aforesaid, feloniously, wilfully, and out
of his malice aforethought to kill and murder. And so that you the
said Benjamin Tapner, John Cobby, John Hammond, together with Thomas
Stringer and Daniel Perryer, not yet taken, the said Daniel Chater
in manner and form aforesaid, then and there with force and arms,
feloniously, wilfully and out of your malice aforethought, did kill
and murder against his Majesty’s peace, his crown and dignity. And
that you, Richard Mills the elder, Richard Mills the younger, William
Jackson and William Carter, together with John Mills, Thomas Willis and
Edmund Richards, not yet taken, before the felony and murder aforesaid,
by them the said Benjamin Tapner, John Cobby, John Hammond, Thomas
Stringer and Daniel Perryer, in manner and form aforesaid, feloniously,
wilfully, and out of your malice aforethought, done, perpetrated and
committed (to wit) upon the said 19th day of February, in the 21st year
aforesaid, at the Parish of Harting aforesaid, in the county of Sussex
aforesaid, them the said Benjamin Tapner, John Cobby, John Hammond,
Thomas Stringer, and Daniel Perryer, the felony and murder aforesaid
in manner and form aforesaid, feloniously, wilfully, maliciously,
and out of your malice aforethought, to do, perpetrate, and commit,
feloniously, wilfully, and out of your malice aforethought, did incite,
move, instigate, stir up, counsel, persuade and procure against his
Majesty’s peace, his crown and dignity.”
To which indictment they severally pleaded Not Guilty.
This being done, William Jackson and William Carter were arraigned upon
the other indictment as principals in the murder of William Gally,
otherwise called William Galley.
Which indictment the clerk of the arraigns read aloud to them as
follows: “That you, William Jackson and William Carter (together
with Samuel Downer, alias Howard, alias Little Sam, Edmund Richards,
and Henry Sheerman, alias Little Harry, not yet taken), not having
the fear of God before your eyes, but being moved and seduced by the
instigation of the devil, upon the 15th of February, in the 21st year
of his present Majesty’s reign, with force and arms, at Rowland’s
Castle in the County of Southampton, in and upon one William Gally,
otherwise called William Galley, being then and there in the peace of
God and his said Majesty, feloniously, wilfully, and out of your malice
aforethought, did make an assault, and him the said William Galley,
upon the back of a certain horse, then and there with force and arms,
feloniously, wilfully, and out of your malice aforethought, did put
and set, and the legs of him the said William Galley, being so put
and set upon the back of the said horse as aforesaid, with a certain
rope or cord made of hemp, under the belly of the said horse, then
and there with force and arms, feloniously, wilfully, and out of your
malice aforethought, did bind, tie and fasten; and him the said William
Galley, being so put and set upon horseback as aforesaid, with his legs
so bound, tied, and fastened under the horse’s belly as aforesaid,
with certain large whips, which you had then and there in your right
hands, in and upon the head, face, neck, shoulders, arms, back, belly,
sides, and several other parts of the body of him the said William
Galley, then and there with force and arms, feloniously, wilfully, and
out of your malice aforethought, for the space of one mile, did whip,
lash, beat and strike: by reason whereof, the said William Galley
was then and there very much wounded, bruised and hurt; and not being
able to endure or bear the misery, pain and anguish, occasioned by
his having been so whipped, lashed, beat, and struck, as aforesaid,
and by his being so wounded, bruised, and hurt, as aforesaid, then
and there dropped down the left side of the said horse, on which he
then and there rode, with his head under the horse’s belly, and his
legs and feet across the saddle upon the back of the said horse, upon
which you, the said William Jackson and William Carter, together with
Samuel Downer, otherwise Howard, otherwise Little Sam, Edmund Richards,
and Henry Sheerman, otherwise Little Harry, not yet taken, then and
there, untied the legs of the said William Galley; and him the said
Galley, in and upon the same horse then and there, with force and arms,
feloniously, wilfully, and out of your malice aforethought, did again
put and set, and the legs of him the said William Galley, being again
so put and set upon the said horse as last aforesaid, with the same
rope or cord under the belly of the said horse, you then and there,
with force and arms, feloniously, wilfully, and out of your malice
aforethought, under the horse’s belly did again bind, tie, and fasten;
and him the said William Galley[2] being again so put and set upon
the said horse, as last aforesaid, with his legs so bound, tied and
fastened under the horse’s belly, as last aforesaid, with the said
whips which you had then and there in your right hands, as aforesaid,
in and upon the head, face, neck, arms, shoulders, back, belly, sides,
and several other parts of the body of him the said William Galley,
you then and there with force and arms, feloniously, wilfully, and out
of your malice aforethought, for the space of half a mile further,
did again whip, lash, beat, and strike; by reason whereof he the said
William Galley was then and there much more wounded, bruised and hurt,
and not being able to endure or bear the misery, pain, and anguish
occasioned by his having been so whipped, lashed, beat, and struck,
in manner, as aforesaid; and by his being so wounded, bruised, and
hurt, in manner as aforesaid, did then and there drop a second time
from off the said horse, with his head under the horse’s belly, and
his legs and feet across the saddle. Upon which you the said William
Jackson and William Carter, together with the said Samuel Downer,
otherwise Howard, otherwise Little Sam, Edmund Richards and Henry
Sheerman, otherwise Little Harry, not yet taken, then and there again
untied the legs of him, the said William Galley, and him, in and upon
another horse, behind a certain other person, did then and there
with force and arms, feloniously, wilfully, and out of your malice
aforethought, put and set, and the said William Galley, being so put
and set on horseback, as last aforesaid, with the same whips which you
had then and there in your right hands as aforesaid, in and upon the
head, face, neck, arms, shoulders, back, belly, sides, and several
other parts of the body of the said William Galley, did then and there
with force and arms, feloniously, wilfully, and out of your malice
aforethought, for the space of two miles further, until you came into
the parish of Harting, in the county of Sussex aforesaid, again whip,
lash, beat, and strike, by reason whereof the said William Galley was
then and there much more wounded, bruised and hurt; and not being
able to endure or bear the misery, pain and anguish occasioned by his
having been so wounded, bruised and hurt, in manner as aforesaid, then
and there in the parish of Harting aforesaid, got off the said horse;
upon which you the said William Jackson and William Carter, together
with Samuel Downer, otherwise Howard, otherwise Little Sam, Edmund
Richards and Henry Sheerman, otherwise Little Harry, not yet taken,
him the said William Galley, in and upon another horse, whereon the
said Edmund Richards, then and there rode, with the belly of him the
said William Galley across the pommel of the saddle, on which the said
Richards then and there rode, then and there with force and arms,
feloniously, wilfully, and out of your malice aforethought, did put
and lay; but before you had gone the space of eighty yards further,
William Galley, not being able to bear the motion of the said horse,
on which he was so put and laid as last aforesaid, by reason of having
been so whipped, lashed, beat and struck as aforesaid; and by reason
of his being so wounded, bruised and hurt, in manner as aforesaid,
then and there tumbled off the horse, and fell upon the ground in
the common highway there, by which fall he the said William Galley,
was then and there much more wounded, bruised and hurt; whereupon
you the said William Jackson, William Carter, together with Samuel
Downer, otherwise Howard, otherwise Little Sam, Edmund Richards and
Henry Sheerman, otherwise Little Harry, not yet taken, him the said
William Galley in and upon another horse by himself, then and there
with force and arms, feloniously, wilfully, and out of your malice
aforethought, did put and set; but the said William Galley not being
able to sit upright on the said last mentioned horse, he the said
Henry Sheerman, otherwise Little Harry, did then and there get upon
the same horse behind him, the said William Galley, in order to hold
him on; but after you the said William Jackson, and William Carter,
together with Samuel Downer, otherwise Howard, otherwise Little Sam,
Edmund Richards, and Henry Sheerman, otherwise Little Harry, not yet
taken, and the said William Galley had rode on a quarter of a mile
further together, in manner aforesaid, he the said William Galley, not
being able to sit upon the said horse, or ride any further upon the
same, through the great misery, pain and anguish, occasioned by his
having been so whipped, lashed, beat and struck, as aforesaid; and by
his being so wounded, bruised and hurt, in manner as aforesaid, then
and there tumbled off the said horse, on which he was so put and set
as last aforesaid, and again fell to the ground; and as he tumbled and
fell, the said Henry Sheerman, otherwise Little Harry, who rode behind
the said William Galley, and upon the same horse with him, in manner
aforesaid, then and there with force and arms feloniously, wilfully,
and out of his malice aforethought, give to him the said William
Galley, a most violent thrust and push; by reason whereof the said
William Galley then and there fell, with much more weight and force to
the ground than otherwise he would have done; and was thereby then and
there much more wounded, bruised and hurt. And that by reason of the
said binding, tying and fastening, of him the said William Galley, by
you the said William Jackson, and William Carter, together with Samuel
Downer, otherwise Howard, otherwise Little Sam, Edmund Richards and
Henry Sheerman, otherwise Little Harry, not yet taken, in manner and
form aforesaid; and of the whipping, lashing, beating and striking,
of him the said William Galley, by you, in manner and form aforesaid;
and of the several wounds, bruises and hurts, which he the said William
Galley received from such whipping, lashing, beating and striking in
manner aforesaid; and other wounds, bruises and hurts which he, the
said William Galley so received from the several falls which he so had
from off the said horse, on which he was by you so put, set and laid,
in manner aforesaid; and of the said thrust and push which he the said
Henry Sheerman, otherwise Little Harry, so as aforesaid, gave him the
said William Galley, as he the said William Galley so tumbled and fell
from off the said horse, as last aforesaid; he the said William Galley,
at the parish of Harting aforesaid, in the county of Sussex aforesaid,
did die. And further, that you the said William Jackson, and William
Carter, together with the said Samuel Downer, alias Howard, alias
Little Sam, Edmund Richards and Henry Sheerman, alias Little Harry, not
yet taken, him the said William Galley, with force and arms in manner
and form aforesaid, feloniously, wilfully, and out of your malice
aforethought, did kill and murder, against his Majesty’s peace, his
crown and dignity.”
The indictment being read to them, Mr. Justice Foster acquainted the
prisoners they might each of them challenge twenty of the panel,
without shewing cause; but if they challenged more, they must shew a
reasonable cause for so doing; and that if they agreed to join in their
challenges they might be tried together, but if they did not, they
would be tried separately; and left them to act in that behalf as they
should see proper.
The prisoners then consulted among themselves for a little while,
and then agreed to join and be tried together. And then the jury were
sworn, and charged by the Clerk of the Arraignments, whose names were
as follows, viz.:--
John Burnard, foreman,
John Hipkins,
William Faulkner,
William Hobbs,
Richard North,
John Shotter,
William Halsted,
Thomas Stuart,
Henry Halsted,
William Poe,
John Woods,
Christopher Wilson.
The counsel for the King were Henry Banks, Esq., Sidney Strafford
Smythe, Esq., and two of his Majesty’s counsel learned in the law; also
Mr. Burrel, Mr. Purkes, and Mr. Steele, recorder of Chichester.
Mr. Steele opened the indictment, as soon as the jury were sworn,
against the prisoners; after which Mr. Banks very judiciously and
learnedly laid down the facts attending the murder, which we choose to
give our readers in his own words.
Counsel for the King: “This is an indictment against the seven
prisoners at the bar, for the murder of Daniel Chater. It is against
the three first, viz., Benjamin Tapner, John Cobby and John Hammond,
as principals in that murder, by being present, aiding, abetting and
assisting therein; and against Thomas Stringer and Daniel Perryer as
principals also, and who are not yet apprehended. And it is against
the prisoners, William Jackson, William Carter and Richard Mills the
younger, as accessaries before the murder; and also against three
others as accessaries before the fact, viz., John Mills, another son
of Richard Mills the elder, Thomas Willis and Edmund Richards, not yet
taken and brought to justice.