Imatges de pàgina

had no concern. The defendant had been a petition to the Sovereign, like a right to move in arrest of judgment, that of the seven Bishops, it would if there was no legal foundation for have been a very different act. He, the trial

. There was nothing in Magna perhaps, had been wrong in allowing Charta against ex-offio informations, the defendant to read extracts from and they had been recognized in the his speeches, because it was not fair, best times after the Revolution, when unless other speeches were read upon the liberties of the country were esta- the other side. Their business was blished. Those who had planned and with the publication alone. If sedition established rational liberty had not was a charge not to be grappled with considered them inconsistent with it. or understood, all that had been done Parliamentary reform was an entirely for years was illegal, and any man distinct subject, and perhaps he ought might publish any libel against indi. to have prevented the introduction of viduals or government with impunity. it; but he had refrained, lest he should Quotations from Locke, Swift, and prevent any remark favourable to the Bolingbroke, had been read to them. defendant. Whether reform was ne- The appeal to the two last was unforcessary or not, was not the question tunate, for Bolingbroke was not a there ; but if it was necessary to any Tory when he wrote the passage extent, it was his opinion that it had quoted. He had retired, and was disbeen prevented chiefly by the violent countenanced. Swift, too, was disproceedings of its friends. None knew contented, because he had failed to better than the learned Counsel who obtain an English bishopric. The pahad tendered evidence of the Man- per in question was no libel, if it had chester transactions, that he could proceeded from the same pure spirit not, consistently with his oath, re- with which the great and immortal ceive it. If the liberty of the press Locke had always written. Without was to be secured, the question of the the liberty of the press there could be truth or falsehood of a publication no free government; but it was thus could not be admitted ; for if it were, they might calmly point out errors innocent persons might be punished and suggest improvements. In this for inadvertent statements. The true manner religion had been purified, and question was, as to the spirit of a publi- the British Constitution brought to cation. The liberty of publishing its present perfection. It was another every thing would be inconsistent with question, whether there was evidence another right, equally valuable—the of the paper being published in that right of preserving character. Ano- county. He felt no difficulty upon ther question had arisen with respect that point ; but if there was no evito intention. Intention was no doubt dence, the defendant would have the an important matter of inquiry, but it benefit of it. (Here his Lordship read was to be learned, not from acts and the evidence.) The publication was at declarations at other times, but from least caused in Leicestershire. (Here the paper itself. Unless the paper his Lordship read the letter, and made manifested intention, they could not various comments as he went along.) convict upon it. If the defendant had Upon the expression, " Is this Engavailed himself of the locus pænitentiæ, land ?-this a Christian land ?” he reand recalled the letter, as stated in the marked, that it was one of the presupposition by himself, that would cepts recommended by Christianity, have shewed intention, and have en- not to judge too hastily. He believed titled him to their verdict. If it had country gentlemen did consider their estates as retaining fees; and although Sir Francis afterwards moved for a they did not make so much noise, they new trial in the Court of King's Bench, would boldly stand forward in defence chiefly on the ground of the absence of the rights and liberties of their of any proof of publication in Liecescountry. After reading the passage tershire, and consequently the irreguin which the phrase "bloody Neroes” larity of the trial having taken place is mentioned, he asked if this was in that county. The plea began to be fair discussion ? Was it not a most argued on the 17th June. The At. over-charged description ? Could any torney-General then urged as folthing justify it? In the allusion to the lows: abdication of James II. nothing was The author of the libel was guilty charged, but a great deal, as it ap- of an offence as well as the publisher ; peared to him, was insinuated. When and where a man was charged with there were insurrections in several writing and composing, it was necesplaces, the assistance of soldiers be- sary to lay the venue in that county in came necessary, and at such a time to which the act of composing or writing put them in mind of what might ex- had been performed. In the case of cite disaffection was most dangerous. the King v. Lambe, which would Our soldiers had fought for the liber- be found in Coke, it had been held ties of the country abroad. The de. that the contriver, the procurer, and fendant said, that the same soldiers the publisher of a libel, were each and who had fought for Cæsar abolished all guilty of an offence; and Lord the liberties of their country; but Holt, in a subsequent case, the King they had fought under Cæsar for fo- v. Bere, had held that the writer was reign dominion-the British armies for the contriver. Upon the authority of our own independence; and they would those cases he should contend that the shew the same spirit again, when the composing a libel was in itself an ofnecessities of the country should re- fence; and if the publishing only conquire it. He had no hesitation in say- stituted the offence, as had been coning that this letter was a libel. Was tended by the counsel for the defenit a calm appeal, or was it calculated dant, to what end were the writing and to act on the passions of those who composing charged in the indictment? were most likely to be excited ? An- It had been said by the defendant's other paper had been put in evidence; Counsel, that the proposition which he it was a letter from the defendant to was maintaining would go to the length Lord Sidmouth, in which he stated, of saying, that a man who wrote a libel that, although written in hurry, there and kept it in his desk would be puwas nothing in his letter to the elec- nishable. Was there any thing very tors of Westminster unbecoming the extraordinary in that? What was the character of an honest man. That it law in cases of forgery? It had been was written in a hurry was manifest, held that a man who committed a foras every one discovered many inaccu- gery, and kept it in his desk, without racies in point of language ; but if it any publication at all, was guilty of was calculated to do mischief, that felony; and, in the case of the King mischief must have been intended. v. Croker, a man had been convicted More poisonous ingredients were ne- under such circumstances. Although ver before condensed in one paper. proof of the corpus delicti, of the writ

The Jury immediately found a ver- ing in Leicestershire, would be suffidict of-Guilty.

cient, yet he was prepared to shew that


evidence of actual publication in Lei- ought to be granted in the present cestershire had been given. It was The charge against the defenproved that the letter had been written dant was for composing and publishin Leicestershire, and that it had after- ing-he would put the causing out of wards been sent open in London. How the question, for he who caused the had it passed from one place to the composing or publishing did, in effect, other? Had it been sent by the post, compose or publish—a malicious libel. or had it been delivered to some per- Now the averment could, as it stood, son in an open state? If it had been mean nothing but that the composing put into the post, he had authority for and publishing took place in Leicessaying that the act of putting it into tershire ; and therefore, if, as the Atthe post amounted to publication : if torney-General said, the composing it had been delivered open to any per. itself constituted a crime, or the comson, the publication was obvious. posing formed one part of the crime,

Mr SCARLETT, at considerable and the publication another, the delength, supported the rule. He trem. fendant ought at all events to have bled even at the thought that there been found guilty only of composing was a bare possibility that the Court or writing in Leicestershire; and the might concur in the arguments of the verdict, quoad the publication, ought Attorney-General. The principles to have been a verdict of acquittal. If which the Attorney-General had the argument on the other side was apbroached on that day had slept in proved by the Court, the Attorneydarkness for fifty years, and certainly

General would say next, that any man he had never expected to have heard who found a libel became subject to such principles attempted to be revin punishment, unless he destroyed it upved. That attempt, however, had been on the spot or carried it before a mamade, and made with a degree of ener- gistrate. Authority even for that pogy and zeal which could not have been sition might be found in Lord Coke. surpassed even in those fatal times According to the case of the King which had witnessed the operation of v. Paine, if one man wrote a libellous those principles—in times which Eng- epigram, and another took a copy of land had survived, and which he had it and kept it for his private amusehoped that England had forgotten. ment, the man who so kept the copy He did not deny the effect of the cases would be punishable, because the thing of the King v. Paine,” and “ the King might at some time afterwards be pub. v. Bere ;” but those were cases which lished. It would be about as reasonhad occurred before the Revolution; able to indict a man for keeping a gun and he had firmly trusted that the opi- in his house, because at some future nions expressed in those cases—opi- period a person might be shot with it. nions founded upon an indistinct con. According to the same case, if one ception of the nature of the offence, man wrote a libel, and another approand upon a strong desire to support a ved it, the approver was guilty. This form of arbitrary government—had case was really worth the attention of long since resolved themselves into the his learned friend, the Attorney-Genemore temperate principle, that the ral; it created a new class of offenders

. crime of libel consisted in the publica. The principle laid down by Lord Holt, tion. Even, however, upon the dan- in the case of the King v. Bere, was gerous, the horrible principle contend- no less detestable. According to ed for by the gentlemen on the other that case, a man 'might purchase a side, he would shew that a new trial book in a shop, and place it in his closet ; and if it were found that that lication in Leicestershire. Upon that book contained matter libellous upon part of the case I have this to observe any human creature, the onus of pro- if there was any evidence, of the ef. ving an innocent intention was thrown fect of that evidence, it was not for me upon the unhappy possessor. What to judge. My duty was to put it to a position was this ! There was not, the Jury theirs was to judge of its perhaps, a book in the libraries of their value. The rule of evidence is the fordships, not even the Prayer-book same with plaintiff and with defendant; itself, from which something libellous and it will hardly be contended that i might not be extracted—libellous up- judge could take upon himself to judge on some individual, some government, of the effect of a defendant's evidence ; or some system. The very notes which if he could, it would be a trial by judge, he (Mr Scarlett) was then taking and a trial by jury no longer. There might, in due time, if not destroyed, was, in my opinion, such evidence on become libellous. They might by ac- the part of the prosecution as raised a cident be locked up among his papers, strong presumption of publication in and, after his death, his posterity might Leicestershire ; and no attempt to rebe prosecuted for possessing them. but that presumption being made, it

On this and the following day, Mr became, in my mind, conclusive proof. Scarlett endeavoured to shew, by many But I have been told that there can cases and arguments, the nature and be no presumption in a criminal casecourse of the error into which Justice that we are not allowed to presume Holt had been led. The term being guilt. General propositions are danclosed, the case was deferred till the gerous to deal with. No doubt, we 16th of November, when it was re- are not to presume without evidence; argued at great length on the same the law says that we shall not imagine side by Mr Denman. On the 27th guilt, and, without evidence to raise of November, the Judges delivered presumption, such presumption and their opinion.

imagination would be one. But, upon Justice Best gave a view of the pro- reasonable evidence given, I deny that ceedings on the trial. The cause was we are not to presume in a criminal most ably defended in person by Sir cause as well as in a civil case. la Francis Burdett, who said little upon fact, as regards the law of evidence, the point of venue, but rested mainly there is no difference between civil and upon the impossibility of his entertain. criminal cases ; and there needs so difing the intent imputed to him by the in- ference if the rules of evidence are the formation. The Jury found the defend- rules of common sense. I beg to say, ant guilty. A motion for a new trial that there is scarcely a criminal case, has since been made, in which that from the highest to the lowest class, gentleman has had the assistance of the in which Courts do not act upon preablest counsel that any bar or any coun- sumption, and that for the reason laid try could produce ; and the matter is down by my Lord Mansfield. « IL now in a fit state for decision. Three seldom happens,"

says that noble objections only were taken when the lord, in the Douglas case," it selrule to shew cause was granted; a fourth dom happens that absolute certainty has since been added, of which, though can be obtained in human affairs, and not taken exactly in time, I wish the therefore reason and public utility redefendant to have the full benefit. The quire that judges, and that all mankind, first of these objections, I believe, is, in forming their opinions of the truth that there was no evidence of pub- of facts, should be regulated by the superior number of probabilities on one the offence is committed ; and that side and on the other.” And through. moment, upon every principle of comout our criminal law we constantly act mon sense—that moment he ought to upon this principle. In treason, upon be called upon to answer. What would proof of rebellion, or endeavour to ex- be the effect of a contrary holding? cite rebellion, we presume intent to kill If a man wraps up a letter or a news. the King. In cases of homicide, ale paper in one county, and gives it to a though the act of killing may be per- boy to carry into the next, who is the fectly innocent, we presume that malice publisher? Would it not be contrary which is necessary to constitute mur. to common sense to deny that the man der, and throw it upon the prisoner to who sent the paper is the publisher ? relieve himself from that presumption. Suppose a man writing a libel in Engla cases of burglary or highway rob- land upon the King of England, and bery, possession of the goods ię pre- sending it to be published in Paris or sumption of the crime until that pos. Petersburgh, where is that man to be session is accounted for. I admit that, punished ? in cases where presumption is attempt. The other Judges concurring in all ed to be raised for the purpose of the material part of this opinion, the proving the great body of delinquen- motion was refused. cy, there the presumption ought to be The SOLICITOR-GENERAL.-As it strong, and such as should leave no was not to be expected that Sir Francis rational doubt upon the minds of a Burdett should be in daily attendance Jury ; but upon a portion of a case during the continuance of the long araffecting merely the question of venue, gument which had been just terminaand which leaves the great body of ted, and as it was impossible for him guilt untouched, I would deal with to be acquainted with the result to presumption even as I deal with it in which it had been just brought, he the most trifling cause that ever oc- (the Solicitor-General) should not press cupied the time of Westminster-hall. for judgment against him (Sir F. Bur. I say that, even supposing the libel to dett) that term, but would allow the have been sent by post, such sending matter to stand over till the next. is publication. I deny that the pub. lication of a libel implies manifestation of its contents, or that the word is so SIR CHARLES WOLSELEY, BART., used in the law of England. We hear AND JOSEPH HARRISON, FOR SEof a man publishing his will ; we speak of publishing an award; but it is not supposed that such a man reads his Mr Lloyd stated the indictment to will or his award; he merely declares be against Sir Charles Wolseley, Bart., that instrument to be his. So, in a and Joseph Harrison, schoolmaster, on case of libel, if a man does the last act two grounds. The first count charged which it is for him to do towards the that they had excited to tumult and accomplishing of the mischief he in- insurrection, by holding a numerous tends, he publishes. The moment he meeting on the 28th of July, and adpasses the libel from his hand, his con- dressing seditious words to them, caltrol of it is gone ; he has shot his ar. culated to bring the government into row, and, whether it hits the mark or hatred and contempt. The second not, no longer depends upon him ; the count charged that they had agreed locus poenitentiæ is over; the body of together to stir up the people to tu


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