206. + William Rowland , otherwise Rowlin, otherwise Rowling , was indicted upon a suggestion, that he, the said William Rowland , after the 24th day of June, 1746, to wit, on the 13th day of July, 1747, at the parish of St. Paul, Covent Garden, in the county of Middlesex, was, in due manner charged before Thomas Burdus , Esq; one of his Majesty's justices of the peace for the said county, upon the information of William Sealy , a credible person, upon oath, that he, the said William Rowland , with divers other persons, to the number of three or more, after the 24th day of June, 1746. to wit, on the 20th day of May, 1747 , did assemble together at Benacre, in the county of Suffolk , armed with fire-arms, and other offensive weapons, in order to be aiding and assisting in the running, landing, and carrying away uncustomed goods, &c . And that he, the said Thomas Burdus , Esq; on the said 13th day of the said month of July, did return the said information to his Grace the Duke of Newcastle, one of his Majesty's principal secretaries of state, who did, as soon as conveniently could be, to wit, on the 7th day of August, 1747, lay the same before his Majesty in his privy council; and that his Majesty, on the said 7th day of August, did make an order in council, requiring and commanding the said William Rowland , otherwise Rowlin, otherwise Rowling, and others, in the said order particularly named, to surrender themselves within forty days after the publication of the said order in the London Gazette; and that this order was published in the two next succeeding London Gazettes, to the lord chief justice, or to one other of the justices of the court of King's bench, or to any of his Majesty's justices of the peace; and that this order was transmitted to the sheriff of the county of Suffolk, who, within fourteen days after the receipt thereof, caused the same to be publickly proclaimed on the two next market days, in the publick market places, of Leostoff and Beccles, being the two nearest market towns to the place where this offence was committed, and that the same was fixed up, on the two next market days, in the publick market places of Leostoff and Beccles; and that he, the said William Rowland, has not surrendered himself according to the said order, and therefore the said William Rowland , otherwise Rowlin, otherwise Rowling, is, and stands convicted and attainted of felony*. And this the Attorney General for our said Lord the King is willing to aver and testify, and therefore desires the court to award execution against the Prisoner.
* See the act of the 19th of his present Majesty to prevent smuggling.
The several issues contained in this suggestion, the Prisoner has denied, and thereupon issue is joined; and you are to try these issues between our Sovereign Lord the King, and the Prisoner at the bar.
King's coun. May it please your lordship, and gentlemen of the jury. There was an act of parliament made in the 19th year of his present Majesty, to prevent this pernicious practice of smuggling; and besides the provisions made by several clauses in this act, there is another provision which was thought necessary by the legislature to be made, which was, attainting them if they did not surrender; for every man was afraid of giving an information against them, because he was in danger, his family in danger, and his effects in danger, and no justice of the peace was willing to take an information; and therefore there was a method to be thought of, whether it could not be done in any other part of the kingdom; and therefore it was enacted, that an information might be made before any of his majesty's justices of the peace for any other county; and the legislature has thought fit to attaint them if they do not comply with the terms specified
The first fact is, that he was on the 13th day of July, charged on oath before Thomas Burdus , Esq; one of his Majesty's justices of the peace, by William Sealy , a credible person, and subscribed by him, that William Rowland , otherwise Rowlin, otherwise Rowling, of Ipswich, in the county of Suffolk, butcher, with several other persons, to the number of three or more, and after the 24th day of June, 1746, to wit, on the 20th day of May, in the 20th year of his Majesty's reign, were assembled together at Benacre, in the county of Suffolk, with fire-arms, in order to be aiding and assisting in the running and landing of uncustomed goods.
The next thing is, that Mr. Burdus did, on the same day the information was given before him, certify under his hand and seal, and did return this information to his Grace the Duke of Newcastle, one of his Majesty's principal secretaries of state.
The third fact is, that the Duke of Newcastle, on the seventh of August, 1747, laid this information, so certified to him, before his Majesty in council.
The fourth fact is, that his Majesty in council did make an order, requiring William Rowland of Ipswich, in the county of Suffolk, butcher, to surrender himself within forty days after the publication of this order, in the London Gazette, and that this order was published in the two succeeding London Gazettes, to the Lord Chief Justice, or to one other of the Justices of the Court of King's Bench, or to one of his Majesty's Justices of the Peace.
The fifth thing is, that this was to be printed by the order of the King in council, and published in the two next succeeding London Gazettes.
And the sixth fact is, that this order was to be transmitted to the sheriff of the county of Suffolk, to be proclaimed within fourteen days after his receiving that order, at ten in the morning, and two in the afternoon, at Leostoff and Beccles, being the two nearest market towns to the place where the offence was committed, and was to be fixed up in the publick market-places of those towns on the two next market days. Gentlemen, these things are incumbent on the part of the Crown to prove, and it must be proved that these things were done. And there is a negative to be proved, that the Prisoner did not surrender himself within the forty days, and if he did surrender himself within the forty days, it is incumbent on him to prove it; and if these things which I have suggested to you are proved, you will find the issues for the King; the Prisoner denies all these facts, and therefore we shall endeavour to prove them. Gentlemen, the first thing to be proved is the taking the information.
Justice Burdus sworn.
King's Coun. I think you are the Justice of the Peace who took the information?
Burdus. I am.
Q. Was the information taken by you?
Q. Who made the information?
Q. When was it sworn to?
Burdus. On the 13th of July, 1747.
The information was read; the contents of which are, that William Rowland of Ipswich, butcher, together with divers other persons, to the number of thirty, upon the 20th day of May, 1747, armed with fire arms, and other offensive weapons, were assembled at Benacre, in the county of Suffolk, and were aiding and assisting in runing and landing uncustomed goods; and that the said William Rowland did run out of a smuggling cutter a large quantity of uncustomed goods, viz. about twenty pounds weight of tea, and thirty half anchors of brandy.
The certificate, signed and sealed by Justice Burdus, to the Duke of Newcastle was read.
King's Coun. Did you carry this information, and the certificate annexed, to the Duke of Newcastle's office?
Chower. I carried this, and delivered it to Mr. Ramsden, a clerk at the Duke of Newcastle's office. I have made a memorandum in my book of the time.
Q. When did you carry it?
Chower. I carried it the 16th of July. This is it, here is my mark upon it.
William Sharpe sworn.
King's Coun. Mr. Sharpe, do you know when this information was laid before the King in council by the Duke of Newcastle?
Sharpe. On the 7th of August, 1747, the Duke of Newcastle laid this before his Majesty in council.
Q. Did you attend then?
Sharpe. Yes; and the King then made an order in council, for all those persons, who are mentioned in that order, to surrender themselves within forty days after the publication of this order in the London Gazette.
The order made by the King in council on the 7th of August was read.
Q. Do you know any thing of this order being sent to the printer of the London Gazette?
Sharpe. I sent it to the printer of the London Gazette, to be published in the two next succeeding Gazettes, and I sent it to the high sheriff of the county of Suffolk.
King's Coun. Had you any order from any of the clerks of the privy council to print two accounts of the order of council made on the 7th of August in the two next successive Gazettes?
Owen. I had it brought to me on the 7th of August.
Q. When was the next Gazette published?
Owen. On the 8th of August, the next was on the 11th of August.
Mr. Owen produced the order he received, and then that order was read as it was printed in the Gazettes of the 8th and 11th of August.
Charles Tisted, under sheriff of the county of Suffolk, sworn.
King's Coun. Who is the high sheriff of the county of Suffolk?
Q. Do you know any thing of an order of council being sent to him?
Tisted. On the 10th of August last an order of council was brought by a clerk of Mr. Sharpe's, and Mr. Edgar desired me to write a receipt for it, and I dated it the 9th though it was the 10th; my clerk made out two copies of it, and I sent them to William Smith , sheriff's officer at Beccles and Leostoff.
The order that was sent to the high sheriff of the county of Suffolk was read.
Q. How came you by this order?
Tisted. This order came by a messenger from Mr. Sharpe to Mr. Edgar, and I directed the two copies which my clerk made out to be put up in the market-places of Beccles and Leostoff.
King's Coun. Did you receive any letter from Mr. Tisted about the 16th or 17th of August?
Smith. Yes, and I went on the 19th to Leostoff.
Q. Was that a market-day?
Q. What day of the week was it?
Smith. On a Wednesday; and about eleven o'clock in the forenoon I read the proclamation at the market-place, where all proclamations are read, and nailed it up at the cross, where all proclamations are nailed up. And I read it at Beccles, on the 22d of August, on a market-day.
Q. What time of the day?
Smith. A few minutes after one.
Q. Where did you nail it up?
Smith. At the market cross.
Q. Were they the same papers that you received from Mr. Tisted?
Q. Are these two towns, Leostoff and Beccles, the two nearest market towns to Benacre?
Smith. I think they are, or at least as near as any.
Pris. Coun. to Mr. Tisted. Are you sure these are true copies?
Tisted. I am sure they are true copies.
Pris. Coun. My Lord, the Prisoner is not the person intended in the information of Sealy, and we are ready to prove it.
King's Coun. If they can prove there is any other Rowland of Ipswich, butcher, that may alter the case.
Mr. Kelly said, that Sealy had declared, and said he was willing to make an affidavit that he never did make any information against the Prisoner.
Court. Why did not you get this Sealy here?
Pris. Coun. My Lord, we could not get him.
Jury. As this is an extraordinary case, we desire to know whether it should not be proved, that this is the man meant in the order published in the Gazette.
King's Coun. The Prisoner, before execution is awarded, may shew that he is not the same person, and then the council for the King are to prove that he is.
Jury. Our doubt is, whether it ought not to be proved, that this is the man that was meant in the information, or whether he is to prove that he is not?
Clerk of Arraigns. Do you find all the issues contained in the suggestion for the King or for the Prisoner?
Jury. For the King.
King's Coun. The reason of our going on in this manner was to preserve the rule of evidence, but for the satisfaction of the gentlemen of the Jury, Mr. Tisted the under sheriff knows him very well, and knows him to be William Rowland , a butcher at Ipswich. My Lord, I desire that judgment may be awarded against the Prisoner.
Rowland. I am not guilty at all of what is laid to my charge.