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retired fwamp that lay at fome diftance. But before we had got many yards, an English gentleman of fome diftinction, as I could difcover by his breeches, the only covering he had on, which were of fine fcarlet velvet, rushed close by us. One of the Indians inftantly relinquifhed his hold, and, fpringing on this new object, endeavoured to feize him as his prey; but the gentleman, being strong, threw him on the ground, and would probably have got away, had not he who held my other arm quitted me to affift his brother. I feized the opportunity, and haftened away to join another party of English troops that were yet unbroken, and stood in a body at fome distance; but before I had taken many fteps I baftily caft my eyes towards the gentleman, and faw the Indians tomahawk gafh into his back, and heard him utter his laft groan. This added both to my speed and despera

tion.

I had left this fhocking feene but a few yards, when a fine boy about 12 years of age, that had hitherto efcaped, came up to me, and begged that I would let him lay hold of me, so that he might ftand fome chance of getting out of the hands of the favages. I told him that I would give him every affiftance in my power, and bid him lay hold; but in a few moments he was torn from my fide, and by his fhrieks I judged he was foon difpatched. I could not help forgetting my own fituation for a moment to lament the fate of fo young a fufferer; but it was utterly impoffible for me to take any method to prevent it.

I now got once more into the midft of friends, but we were unable to af ford each other any fuccour. As this was the divifion that had advanced the farthest from the fort, I thought there might be a poffibility, though a bare one, of my forcing my way through the outer ranks of the Indians, and get into a neighbouring wood. I was the more encouraged to hope by the almoft miraculous prefervation I had already experienced; nor were my hopes vain, or the efforts I made ineffectual. Suffice it to fay that I reached the wood, but by the time I had penetrated a little way into it, my breath was fo exhaufted that I threw myself into a brake, and lay for fome miuutes apparently at the laft gafp. At length I recovered the power of refpiration, but my apprehenficns returned with

all their former force when I faw feveral favages pafs by, probably in purfuit of me, at no very great distance. In this fituation I knew not whether it was better to proceed, or endeavour to conceal myself where I lay till night. fhould come on. Fearing, however, that they would return the fame way, I thought it moft prudent to get far. ther from the dreadful fcene of my palt diftreffes. Accordingly, Ariking into another part of the wood, I hattened on as fast as the briers and the lofs of one of my fhoes would permit me; and, after a flow progrefs of fome hours, gained a hill that overlooked a plain that I had juft left, from whence I could difcern that the bloody form till raged with unabated fory. But not to tire my readers, I fhall only add, that, after paffing three days without fubfiftence, and enduring the feverity of the cold winds for three nights, I at length reached Fort Edward, where with proper care my body foon recovered its proper ftrength; and my mind, as far as the recollection of the late melancholy events would permit, its ufual compofure.

It was computed that 1 500 perfons were killed or made prifoners during this fatal day. Many of the latter were carried off by the favages, and never returned. A few, through favourable accidents, found their way back to their native country, after having experienced a long and fevere Captivity.

The brave Col. Monro had haftened away, foon after the carnage began, to the French camp, to endeavour to procure the guard agreed on by the tipulation; but his application proving ineffectual, he remained there till Gen. Webb fent a party of troops to demand and protest him back to Fort Edward. But thefe un-' happy occurrences, which would probably have been prevented, had he been left to purfue his own plans, together with the lofs of fo many brave fellows murdered in cold blood, to whofe valour he had been fo lately a witness, made fuch an impreflion on his mind, that he did not long furvive. He died in about three months of a broken heart; and with truth might it be faid, that he was an honour to his country.

I mean not to point out the following circumstance as the immediate judgment of Heaven, and intended as an atonement for this flaughter; but I

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Cannot omit obferving that very few of thefe different tribes of Indians that shared in it ever lived to return home. The fmall pox, by means of the communications with the Europeans, found its way among them, and made an equal havock by its malignity to what they themselves had done by their brutalities. The method they pursued, in the first attack of that diforder, to abate the fever attending it, rendered it fatal. While their blood was in a ftate of fermentation, and Nature was ftriving to throw out the peccant matter, they checked her operations by plunging into the water; the confequence was that they died by hundreds. The few that furvived were transformed by it into hideous objects, and bore with them to the grave deepindented marks of this much-dreaded disease.

Monfieur Montcalm fell foon after on the plains of Quebec.

See the firft relation of this horridmaffacre in our 27th Vol. for 1757. P. 476.

I

Wefiminfer, Feb. 13, 1780.

Mr. URBAN,

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your occurences for the year past, you have omitted a remarkable decifion in the Court of King's Bench which, as it concerns a point of national fervice, ought to have been recorded. I looked for it in vain in your Supplement, and therefore recommend it for infertion in the prefent month. Subftance of the Argument in the King's Bench rejpecting the Sentence against a Prefs Gang at Bury, in Suffolk.

ON Wednesday were brought before the court of King's Bench, Weft-, minster, Bothwick, and fifteen others, part of a prefs gang, to receive the opinion of the court upon a special verdict given in by the jury before whom they were tried at Bury afsizes, for the murder of Thomas Nicholas.

Mr. Jones, for the profecution, ftated, that, at the laft Bury affizes, the prifoners were indicted for murder, and tried by Judge Athurft, when the jury returned a fpecial verdict, ftating the following facts: That William Palmer, a midshipman, a non-commilfioned officer, belonging to a prefs tender, received a wariant from the Admiralty, empowering and

com

manding him, with others af bis crew, to impress fea-faring men that William Palmer, being informed of certain men under that defcription at Ipfwich. gave the prifoners verbal orders to proceed there and impicts them; that

it is the custom to give verbal orders in fuch cafes, without any other authority that the warrant to the midfhipman was not backed by any justice of the peace that the prifoner went to a public-house there, with such sticks as prefs-gangs ufually carry, when the door was opened, and they found cer-' tain fea faring men there, part of the crew of ftore-fhips not paid by government, but contractors: that being told of the purpose for which the prifoners were come, one of them drew a knife, and fwore he would ftab the man who should prevent him from going to his wife; another with a poker fwore he would not be taken alive: that a fcuffle enfued, in which the table was thrown down, and candles put out by one of the crews of the ftoreships that Thomas Nichols, the deceased, run in amongst them, and told them not to fuffer themselves to be preffed that in the affray Thomas Nichols received a mortal wound from one of the prifoners.

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Having ftated the special verdict, Mr. Jones proceeded to obferve, that the question to be determined by the court was, what fpecies of homicide these men were guilty of? In his opinion it was no less than murder, and they were all involved in the fame guilt: for it is a clear principle of law, that where a number of men affemble for an unlawful purpofe, (the probable confequence of which is bloodshed,) if one commits murder, they all are equally and in the fame degree criminal. Upon this point the crown lawyers are all agreed : Murder must proceed from a bad difpofition, but does not neceffarily imply an intent of killing. Any evil intent terminating in the deftru&tion of another man conftitutes the crime; and where many perfons with fuch intent affemble, and but one kills a man, the rest are equally principals in the murder: That in the prefent circumftance, the intent was not only evil, but the purpose unlawful.

Mr. Graham here arofe, and on the part of the prifoners faid, he would agree that it should first be argued upon a fuppofition that the affembling was unlawful, provided that if it thould on this ground be given againft, him, he might then be allowed to prove the legality of their purpose. To this propofal the court affented.

Mr. Jones proceeded to fay, that the laws of this country allowed not

of

in the Cafe of a Murder committed by a Prefs-Gang at Bury. 73

of executing any procefs, however legal, in the manner in which the prefent was attempted. Men armed with bludgeons, without affigning any caufe, forcibly and with threats endeavour to arreft aud imprifon others, who naturally refift. The confequence proves fatal. To whom is the guilt to be imputed, but to those who were the cause of the tumult? To constitute the crime of murder, a particular malice is by no means neceffary to be proved; but in the prefent cafe there is that evil intent, big with confequential mifchief, fufficient to warrant the court in determining the prifoners to be guilty of murder. To the objection, that no particular perfon is defcribed, as having given the fatal ftroke; it is anfwered, that they are all included in the indictment, and being jointly the cause of, and all concerned in the fray, they are all to be included in the fame fentence.

Mr. Graham, on the other fide, obferved, that, allowing the p ifoners to have been in an act not justifiable, still they could not, upon the fpecial verdict before the court, be construed murderers. No perfon being fixed upon, as having given the wound, they are, if at all, but murderers in the fecond degree. The fpecial verdict is defective, ftating only that Thomas Nichols died of a blow, without finding the prifoners prefent aiding and abetting a circumftance neceflary to be proved to constitute murder in the fecond degree. It is prefuming too far to fuppofe, (nor will the court make the fuppofition,) that they were prefent, aiding and abetting, when the fpecial verdict does not contain that information. In the inttance quoted by Mr. Jones, from Hawkins, that learned lawyer is certainly inaccurate in ufing the word "murder," when, from his own expreffions after, he muft mean "homicide." It is true, that where all fet out with intent to commit felony, and only one does actually commit it, all are guilty of that felony: fo if in a riot one commits murder, or manflaughter, all are guilty. This appears in Fofter; and from it may be drawn this inference, that, even where an affembly is unlawful, as in cafe of a riot, manslaughter may be committed.

Manslaughter and murder are of the fame nature, and differ but in degree. The prifoners before the court are certainly guilty of the leffer offence only, fince no malice appears,

either from the circumftances of the cafe, or the terms of the special verdict; and furely the court will by uo means imply a malice, without the leaf reasonable ground. The fituation of the prisoners would be particularly hard indeed, if, when compelled to a fervice which they dare not refule, they are to answer with their lives for confequences which are, if not inevitable, but too probable to follow from the execution of their duty. Thole men cannot be fuppofed to have had that malice neceffary for the crime of murder, being driven involuntarily to the fatal bulinets-a bulinets, too, which they proceeded to execute under the idea of its being lawful.

Mr. Jones, in reply, allowed, that the Ipirit of the law acquits, but that the letter condemns them. In indictments (trict legal expreffion is not required. As they were in the house with il intent, the law will prefume they were aiding and abetting. A determination to commit an unlawful act, whether known to be fuch or not by the party, proves that disregard of focial duties, which conflitutes, in the legal import of the word, malice.

Judge Willes obferved, that Mr. Graham's objection to the verdj& required confideration, fince it does not appear from it that they were prefent aiding and abetting. It is true they are faid to have entered the house, and fome endeavoured to take away the poker, &c. but others might have been out of the room, or have left the house, and it would be unjust to in volve all in guilt, becaufe fome are criminal. The opinion of the court, was as follows: Judge Willes faid, the court had taken into confideration the arguments fuggefted by counsellor Graham, and were of opinion that they were perfectly valid and well founded. They agreed with him, that, fince the fpecial verdict itself did not even bring in the two that were included in it pofitively guilty, but only loosely tated that they appeared to he fo; and fince none of the rest could be proved to have been in the house at the time, or in any degree aiding or abetting in the murder; and fince indeed there was no proof compleat enough for legal conviction, that the murder was perpetrated by any of the gang; it would be altogether inconfiftent with the precifion of legal juftice to pronounce judgment on the prifoners for what could amount only to a fuppofed

a fuppofed conjectural perpetration of the murder. The court therefore willed, that the prifoners be difcharged. The other Judges spoke a few words to exprefs their acquiefcence in what Juftice Willes had faid, and the men were fet at liberty. Lord Mansfield was not prefent.

SIR,

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YOUR correfpondent A. B. (Magaz. 1779, p. 578) has gone deeply into the fubject of yew-trees in churchyards, and his effay is both entertaining and inftructive. It may be faid with propriety, he hath fairly and candidly demolished the two current opinions concerning them, that they were originally planted there to protect the churches from forms, or to furnish the parishioners with bows.' But as it is always easier to pull down than to build, he does not feem to have fucceeded fo well in his own conjecture upon them, that their branches were intended to be used on Palm-Sunday,' for this plain reason, the bearing of Palms, on Palm-Sunday, was an act of joy and ovation in remembrance of our Saviour's triumphant entry into Jerufalem; whereas the yew is not only a tree of baleful influence, whence Statius terms it, metuendaque fucco

Taxus-*.

but it is too much of a funeral nature, to be made a fubftitute for the joyful palm. But you will fay, the ill-fmelling box is applied in fome countries to the fame purpose †, and is equally funeral, and therefore why not the yew? I anfwer, whatever may be the custom in foreign countries, box never was used here, that we know of, in the proceffions on Palm Sunday, neither does it ever appear in our churchyards, which it certainly would in that cafe as well as the yew, upon A. B.'s hypothefis; ought not the box, on this fuppofition, to occur as frequently in church-yards as the yew? This objection is therefore invalid.

But what then, you will afk, was the intention of planting yews in church-yards, if their branches were not used on Palm-Sunday? It is with the utmost diffidence, Mr. Urban, that I deliver my opinion on this disputable queftion; however, fenfible as I

Statius, VI. v. 91. Evelyn, paffim. † 5.9.

and fe: Mr.

am of your great indulgence towards all your numerous correfpondents, I fhall venture to tell you my thoughts. Now I take it, as A. B. does, that yews fpecifically were not planted in church-yards, for the purpose of protecting the fabric of the church from ftorms, though in the event they proved fubfervient to that end ‡. But my conception is, that on the first

planting of trees there, whenever that was, for I don't pretend to specify the time, various kinds were introduced, and in fome places the yew. amongst the rest. Confidering the flowness of the growth of this tree, and the iminenfe bulk of fome of them, one has reafon to think they may be as old as the Norman conquest. Suppofing then the yew to be once planted in certain cemeteries, when the ftatute of 35 E. I. A. D. 1307. began to operate, whereby leave was given to fell or cut down trees in church-yards, for building and repairs; the timber-trees adapted to that purpofe would of courfe be taking down from time to time, fo that the yews at last, and in our days, would be the only trees left ftanding. Thefe, as unfit for the ufes prefcribed, would confequently remain, and afterwards, as an ever-green, be thought an emblem of the refurretion, and even acquire. fome degree of regard and veneration."

In answer to the query about Cofmas (for this I prefume to be the orthography, and not Cojmus,) and Damian" who have two churches, at leaft, dedicated to them in Kent, Challock and Cofmas Bleane, I may obferve, that they. were brothers and phyficians, practiling without fee, which was enough, according to the notions and ideas of the Papists, to constitute them patrons of barbers and furgeons, thefe profeffions being antiently joined together. They, fuffered, though not without great difficulty, many miracles being wrought for their deliverance, under Diocletiant. I will tranfcribe a few lines from the Golden Legend, printed by Caxton, as the book is fcarce, in confirmation of the above.

Cofme and Damian were brethren, germaynes, that is of one fader and of

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T. Row on Canons Cursal, and on a curious Saxon Relique.

one moder, and were of the cyte gee, and borne of a relygyous moder Theodora. They were learned in the arte of medycyne, and of leche crafte‡, and receyved fo grete grace of God, that they heled alle maladyes and langours, not only of men, but also cured and heled beftes. And dyd alle for the love of God, withoute takynge of any reward, &c.'§

These faints were prayed to accordingly in the Horæ fecundum ufum Rom for obtaining fuccefs in taking phyfick. Their day was September 27, and in the Breviary there is a fervice for them.

Concerning the Canons Curfal in the two churches of St. Asaph and st. David, I am of opinion they were those who attended and prefided over the fervice in course; unless they were fo named from their precedence in the chapter, according to feniority, taking their feats in course, in the order, that is, of their refpective inftitutions, Seniores priores.

I have nothing to say in regard to the Briefs.

We are certainly extremely obliged to Y. Z. for his drawing of that curious Saxon Relique, p. 536. However, I cannot concur with him in his idea of its being an ornament on the head of an Abbot's or rather a Prior's staff, fince this must have been of the nature of a Pedum, or crofier, and confequently of a very different form. Befides, the staff in that cafe must have been exceedingly thick and great, and it may be doubted whether the loffer Abbots were entitled to a crofier. The fame objection of thickness, again, lies against its being a walking-itick, neither does the pointed top accord with this notion; and I can hardly deem it the cover of a Pyx, becaufe of there being four ears instead of two to ferve for hinges. The ufe therefore of this antient ornanient muft be left in fufpence.

Upon what ground your correfpondent fuppofes a ring paffed through it, to which a gem was fufpended, I cannot easily conceive. The words are thefe: "Perhaps a gem was fufpended on a ftring that pafled through a finall hole, that has been drilled through the head, over the infeription." aperture does not neceffarily imply a

The

Perhaps, furgery; but the Latin has no correfponding word.

Caxton, Golden Legend, fol. 303. So Dr. Smith writes "Vocantur a Græcis gyuga, quod medicinam abique lucro axertuille dicuntur."

75

ftring, and how the gem gets in is certainly difficult to comprehend: this therefore seems to require fome further explanation.

As to the infcription, I read it Godric me workt *, Godricus me fecit. Godric, now Gooderick, was a common Saxon name, and appears often on the coins; and it was ufual in thofe times not only for the artifts to put their names on their performances, in imitation of the ancient Greek ftatuaries, as loma ME fecit †, but alfo for the piece, or thing made, to be the speaker; whence we read on that famous jewel in Dr. Hickes' Thefaurus, Ælfredus me juffit fabricari ‡; and again in the Preface, thredus conjux Heanrade ME celavit, i. e. caları juffit §.

Though it be no ealy matter to develope the ufe of this unconnected ornament at this time of day, yet the public is highly indebted to Y. Z. for an accu rate delineation of fo fingular a renanant of antiquity, the Saxon monuments being indeed exceedingly rare. T. Row.

P. S. Mr. Gofiling's implement (fee P. 543, for Nov. 1779,) would juft as well bake, as cover wood-embers, if placed against the back of the chimney, and the tone under it swept clean.

Feb. 6, 1780.

Mr. URBAN,
THE author of the inclofed having

given me free leave to tranfcribe and
make any use of it, provided himself
be kept out of fight, I thought a bet-
ter difpofal could not be made of it
than in your valuable mifcellany.
A CONSTANT READER.

Dear Sir,

IN compliance with your opinion that the Patriarchs lived the very fame kind of life with the Nomades of every nation in the world, and confequently were not fo remarkable for their customs and manners as would feem on reading the Bible for the fict time, or as a man who had never read the fecond book of the Pentateuch might fancy about the antient Egyptians, I have thrown together a few particulars which fech a familiar acquaintance as a few occafional rides round town enable me to form with the peafantry of this kingdom, and without pretending to an intimate knowledge in vulgar antiquities.

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