William Whitchurch (1699-1750) was the son of William Whitchurch and Dorothy Smith. He had 11 known brothers and sisters, not all of whom survived infancy. He was married to Mary Weight (nee Newport), a widow, with whom he had 3 known children: William, who married Elizabeth Bayly and was Clerk/Vicar of Elm/Frome until his relatively young death in 1768; Joseph, who died in infancy; and Elizabeth, who married John Durnford and is the ancestor to this Whitchurch family.
In the year of 1747 (about), one Edward Halliday of Somersett (who may have been a relative of William Whitchurch) declared bankruptcy. In the proceedings (sparing the details) it was determined by the Lord Chancellor that William owed Mr. Halliday the sum of two hundred and twenty-six pounds, which William was ordered to pay to Mr. Halliday’s assignees (Hancock & Hooper).
William either would not or could not pay the money pursuant to the order, and in June of 1748 his Lordship granted the following warrant for apprehending him and carrying him to the Fleet:
“In the matter of Edward Halliday, a bankrupt, Whereas by an order dated the 28th day of November made in this matter upon the petition of Jonathan Hancock and Richard Hooper, assignees of Edward Halliday the bankrupt, it was ordered, that William Whitchurch should stand committed to the prison of the Fleet, for his contempt in the said order mentioned, and that a warrant for such his commitment should issue accordingly; these are therefore in pursuance of the said order to will and require you forthwith, upon receipt hereof, to make diligent search after the body of the said William Whitchurch, and wherever you shall find him, to arrest and apprehend him, and to carry him to the prison of the Fleet, there to remain till further order; willing and requiring all mayors, sheriffs; justices of the peace, constables, headboroughs, and all other his Majesty’s officers, and loving subjects, to be aiding and assisting to you in the due execution of the premises, as they tender his Majesty’s service, and will answer the contrary hereof at their perils; and this shall be to you, or any of you, that shall to do the same, a sufficient warrant. Dated this 16th day of June 1748.”
HARDWICKE, C.
To John Eyles, Esqu.; Warden of the Fleet, or his deputy, attending the High Court of Chancery.
William was arrested on a Sunday, the 9th of October (presumably 1748) in Frome, Somerset and transferred to Fleet prison the following morning.
Being an attorney-at-law, William immediately began his defense. It doesn’t appear he disputed any facts regarding owing money to Mr. Halliday. Instead he centered his defense on circumstances surrounding his arrest. His petition was heard 2 June 1749.
He insisted his arrest was unlawful due to the fact that it occurred on a Sunday, for non-payment of money only, and not for treason, felony, or for breach of the peace. He claimed that such an arrest was contrary to statute, specifically the statute of the 29th of Charles the Second, ch. 17 (entitled) An Act for the better observation of the Lord’s day, commonly called Sunday, sec. 6. “Provided also that no person or persons upon the Lord’s day shall serve or execute, or cause to be served and executed, any writ, process, warrant, order, judgment, or decree, except in cases of treason, felony, or breach of the peace, but that the service of every such writ, process, warrant, order, judgment, or decree, shall be void to all intents and purposes whatsoever.”
However, it was sworn in testimony by several witnesses that William, had, in a way, given himself in voluntary surrender by knowingly presenting himself to the bankrupt’s assignees and tipstaff on that Sunday.
“Against the petition was read the affidavit of James Adlam, who swore that on the 9th of October last, being Sunday in the evening, Whitchurch came into the yard of the George Inn in Froome, where Adlam was, and he thereupon told Whitchurch he had my Lord Chancellor’s warrant against him, to which Whitchurch immediately answered, he knew it, and he heard he was there, and came on purpose to be taken up; and that he several times after, both the same night and the next day declared the same.”
The Lord Chancellor ruled against William’s petition.
“The strength of the evidence goes to his voluntary surrender for the fact is positively sworn to by three persons, and denied by Whitchurch’s affidavit only; and there can be no doubt but a man may, if he pleases, surrender himself voluntarily to my warrant on a Sunday.”
There was also reference to the “order of committment” which was made in this case, meaning a different process than other warrants, directed to the gaoler rather than the sheriff. This, in essence made William an instant prisoner and escapee, and the execution of escape warrants are permissable on Sundays.
William remained in Fleet prison until his death a short time later, the exact date unknown. There has yet been no death or burial record found, and unfortunately, the records for the prison during this specific time frame were destroyed during the Gordon Riots of 1780. The only indication of his eventual demise is his probate record, dated 4 April 1750, found here.
More information about Fleet prison can be found here and here.
You may also be interested in The Fleet. It’s Rivers, Prisons, and Marriages – by John Ashton, the Project Gutenberg eBook (free).
References:
Reports of Cases Argued and Determined in the High Court of Chancery – vol.1
The English Reports – vol. 4; vol. 26
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