Star. — London, England, 1811-11-02 00:00:00

LAN' INIALLIGEAri.:X. ' COURT OF KING'S BENCH, NOV. 1,. TUE KIN' V. DENRY WHITE THE ELDER. The following Jury were sworn to try this infor mation : , . mew: streets. Richard Noble, James Henekle, . 'I bowas Bowden, ' Grant Alldv, Abraham Mann, 1..:. John Danv‘ra, mere...AL . 'paper_ 4 IndependeNt Ill s hig. TALItiNaN. • . • the 38th of the King, which recognised this as suffi- Benjamin Chipp, • `John Leaf, I dent proof, directed that the affidavit of newspaper Thomas Cole, , Thorns,' Hamilton, proprietorship should be sworn before ,'Commissioner James Carpenter, Robert Rieglesbone. of Stamps, or one whom the Commissioners should Mr. RICHARDSO:sr opened the pleadings, by stating, specially appoint for that purpose. The present affi that this was an information, charging the defendant davit appeared to have been sworn only before the with printing and publishing a seditious libel, on the distributor of stamps for the Dorsetshire district, the llith of September, 1810, to which he had pleaded not guilty. . defendant being, at the time of its being made, a pri . . soner in Dorchester gaol ; and no authority appeared The ATTORNEY-GENERAL stated, that he had to have been given to him for that purpose. thought it his duty to tile a criminal information 1 against the defendant, for a most mischievous libel, ! The ATTORNEY-GENERAL answered this objection and one which he should have neglected his duty in by reading from the Act a proviso, that it should not suffering to pass unnoticed. In order to render the i be necessary to prove the Deputy a Commissioner or publication intelligible to the Jury, he would state to Officer. I them the circumstances which led to it. After the LORD ELLENBOROUGD would assume from the copy splendid atchievements of our army in Spain , at the i of the affidavit produced, that the affidavit itself was battles of Roleia, Vimiera, Talavera , and Corunna, sworn, because he was directed to do so by the act: but his Majesty was pleased to direct, that out of greti. that was not enough ; it must be sworn either before tude to the British troops engaged in those victories, a Commissioner, or a person authorised by the Com medals should be worn nrissioners. The act did not require that the autho by all their offe-ers of a ter- Jain rank, in commemoration of . their • services on city should be proved ; but the affidavit before the Court ran "sworn before me,Whitaker, distributor."' those occasions. .It. -was impossible that these medals T could be given to all concerned in these victories, al he att did not state that a distributor, quoad distris butor, had any authority to take the affidavit. though all were equally deserving of them; they were granted therefore to _Officers as Tow as Lieute-1 The ATTORNEY-GENERAL. called Mr. Whitaker, w nant-Colonels.inclusive. Now the object of the libel who proved that he had received from the Stamp-office in question was to hold out to the common soldiers , in 1803, an authority in writing to take such affida that these grants of medals were made in order to ' wits but he lord mislaid it. ; create an o.lious distinction between them and their I Mr. E. ',AWES rising to cross-examine thig witness, men—to a:tcibute all the merit of the victories to tae ' Lord ELLENBOROUGII said, he would not have meant hi Officers—and to insinuate, that the men werestudi- questions to m. Iss hat was meant for lenity quoted as precedent. The ously passed by with neglect and contempt. It also' Counsel must put his client upon examining the wit held out the favourite comparison on those occasions i ness: he might suggest t h e —how much better the soldiers in the ranks of Bona- Mr. Gannow, for the prosecution, said, that this parte's army were treated than our own. 'There was was not a new doctrine. It had been decided in Westminster-hall; and Mr. Clifford had left the Court no man who desired that any thing like order, or se etirity of property, should prevail, but must with to in consequence of the decision. discourage such publications as these; and it was Mr. Whitaker produced the letter from Mr. Beres- ford, late Secretary to the Commissioners, which en. impossible not to . see, that the manifest tendency of t closed his mislaid authority. It mentioned the au thority enclosed. them was, to excite disgust and disaffection in the minds of the soldiers ; and to hold gut to them that . , . they were contemned and thought lightly of by those From the incompleteness of this evidence s the. fact of the paper in question being bought at the offieeof whose duty it was to notice and cherish them. It such a spirit as this were to be disseminated and to the Independent jVhig,No. 23, Warwick-squaresWaa. gain ground,:it was unnecessary to detail the calami- proved.; and Mr. Samuel Hill of the Stamp office taus consequences' that Might ensue. Did the Jury produced the original affidavit.. believe that the common soldier felt a rankling jea- Mr. E. ',awes objected that the evidence was now lousy in his brew that his officer should bear the more incomplete than before. Lord ELLEbiBOROUOIi..—They ate not proceeding badges and not himself.personally ? No : he would rather point to it with exaltation, and exclaim, it see under tame statute now ; they have proved what they how we are honoured ! See how our leader in the are not required by the Act to do,—the buying of the day of battle carries about him tktrophy w hi c h h e publication. 7end we won." It remained for the publisher of this Mr. E. LAWES proceeded to gate that the affida -Per to give ' woud testimonial the colour which vityas a nullity. 1 . ' _ _ - rar , giv —the ps, if. is•here laboured to take ; and to seduce the soldier from his duty, by endeavouring to-persuade llirnthat its intention was to disgrace and vilify him. Another part of the libel contained the most gross and abusive scandal of his Majesty's Ministers. The Attorney- General did not mean to say, um the measures of an administration might not be discussed with free dom ; he always had been a friend to such discus sions.,.-always ought to be—and always would be; but they did not justify a man in lavishing abuse upon Ministers, merely because he did not happen to think them fit for their situations. The publication before the Cnurt bluntly said, that the character of the present Administration was infamy—that their conduct was held in universal abhorrence—and that their every act was influenced by corruption. Wes this keeping within the bounds of fair discussion ? Had it any resemblance to discussion ? It was mere scandal and general slander ; such as must .lever be permitted to pass with impunity under the honoura ble colour of fair and free discussion. Upon these' grounds the Attorney-General rested his case ; his Ijoidship would pronounce upon the law of it ; and _ than ''indeed a libel, both as it Farringdun . ,Mould be proof in London was . If so, why in troduce a positive falsehood in the record? The information charged a fact which had been dis proved in evidence; and, however the Court migh t . rule it, the Jury had a right to say that the defen dant had not published the libel as alleged in the In formation ; especially as it was the criminal inten tion which constituted the crime ; and as no criminal intention could be proved upon the defendant in pub lishing the alleged libel, which he never saw till it was printed, and which, being-then confined at Dor chester, a distance of 120 miles from London, it was impossible he should hive seen. But he should be told, that the law imputed to him the responsibility for every thing which appeared in a newspaper of winch he swore himself proprietor. Notwithstanding all that professional ingenuity should maintain, the Jury would still decide from their consciences ; and, as to the libel in question, the defendant was as one who was told that he had done an act in his sleep. He could call witnesses to prove that the libel was pot his ; that the article was written so close upon its publication, as to preclude the possibility of its being previously inspected by him : and that when it did reach him, in the paper 'in which it had been pub lished, he disclaimed all knowledge of it. He was borne away from the scenes of his employment by the heavy sentence of the law, with the only a!terla. tive of continuing the publication of his paper, or em bracing immediate ruin by relinquishiug his only sup-' port. He took GOD to witness lie never saw the arti cle till it was published, or counselled or sanctioned its appearance. The actual writer of it, and bonaide publisher, was willing to answer for it; but had been [rejected, for the sake of bringing the defendant once more to punishment. He did not impute to the At torney-General any other motive for this conduct than a sense of duty : but here the defendant stood, after having been three years a solitary prisoner at the dis tance of 120 mile , from his business, which he was 'either compelled to renounce, or to entrust to the ma nagement of another. This deputy had offered to surrender himself, provided the Attorney-General would prosecute him, and not the defendant; but he Ind refused to du so. Surely, however, the Jury would not confound the innocent with the guilty ; and wile' e was' that justice Which rejected the latter, and prose cuted the former ? The defendant was aware that he • might have been spared this trial, if he had suffered judgment to go against him by default; whereby he would have confessed what he was utterly unconscious of—the wicked intent charged by this information. For resisting so mean a proposal, he trusted he should meet with the approbation, rather than . the censure, of the Jury ; and should not place himself in their - - • - - Lord ELLENBO ROUoll.—The certificate is now oaly supplementary evidence ; and if the affidavit was not sworn before the proper officer, it is void. But if the defendant had only written a letter, saying; I shall carry on such a printing business at such a place, and a paper had been produced bought at that. place, it would be probable evidence to go to .a Jury, that he iielendant was the publisher of the paper. Mr. E. Lawns said, that his objection was, that the affidavit was a perfect nullity, unless authorized by the Act of Parliament. Here the affidavit had been sworn before a person not appointed to take it. Lord ELLENBOROUGII.-- It is against you both ways. If they go upon the Act of Parliament, the affidavit will be left to the Jury with such observations as the produced envelope may suggpt in favour of its au. thority. But, at any rate, they have a declaration under the defendant's hand, that he is the printer, publisher, and sole proprietor of a paper intended to be published at No. 23, Warwick-square, on the 18th of May ; and, on the 23d of September following, a paper is published there. It is competent to you to shew, that in the intermediate time lee ceased to carry on the printing business 'there. Otherwise, the evi . . Would tell them that it was .41 a•U‘3, ll•-••.-- ielated to the soldiery and the Administration. [The libel was here read by the Attorney-Gene tal. ' Tr accused the Administration of general cor ttiptibn, and characterised it as fatally inefficient — as betraying its imbecile character in its slightest Sloven:lents—as scoffed at by the rest of m:ynkind as putting the seal to its character by the corrupt and elespntic act in queelon. The writer knew that it had always been customary to bestow the reward on Cap tains, ,but Maintained that it oug'2.lt to be extended strii &Wig. Bonaparte avoided all 4listiiitticins in hts ansty :'there, merit alone ensured reward; and atos . that inthrisiasip vellich prevailed in his :service._ In our's, the melancholy reverse was found. The_spitit of the language of the Giq.ette, is which IhesetrewardsVere announced, was, that the superior . eflict;r Alone viiAs honoured, the brava; . soldier eon ? , A.ertined as below the other's :level, and accordingly Vekned the same reward.] • The ATSORNEY-GENEICAL concluded by aikingthis Juxy,, as men of plain sense, whether the tendency o f ttis paper was not to create disaffection iu t he mind ,ef the soldier. ?,acrd if so, they would hear froni au .thority that it was a libel. :Mr. EDWARD .LAWES rose in this stage of the tia take hii Lordship's opininer ntson his situa- He' held a brief for - the Defendant. In the hands with the less safety for that conduct. The law !took him,to allistant pla,ze. It could not be supposed [ that it thereby meant to deprive him of his prop of life; and it was from the operation of its sentence alone' that he was brought to answer for this offence. It might be urged that this was no defence ; the allow ance of it in this case would open a precedent which would set wide the rites of Justice, and reduce her to a there mockery. flat would not Juries be always guarded against such a precedent ? Was a case like the defendant's ever likely to .occur again ? His case was solitary. Other printers hid either not been sent to distant gaols, or their banishment thither had not prejudiced the conduct of their papers. The law, it might be said, considered nalting but the act for winch the publisher had made himself responsible ; otherwise collositin might evade it : but would .the law in no case discriminate ? How far was this agency held to extend ? What, if the 'agent, in a fit of lunacy, were to insert a paragraph which amounted to high treason ? Would the Jury, therefore, send him to the scaffold ? Where, then, did they draw the boundary ? The defendant impressed upon the Jury, that by Mr. Fox's Act they were become the Judges both of the deuce is competent to go to a Jury, as to the fact of the defendant being the Publisher of the Paper in questiOß. Mr. E. LAws.s requested that a note might be taken of his objection. - • Lord ELLEssoaouctr.—l. have already anticipated your wishes. The libel was then read by the proper officer, Mr. Lowten. The paper was said to be printed and pub- lisbed by and for the defendant. Mr. E. LANES was afraid the Court were not yet , in possession of his objection. It was, that the affida sit could not be read for another purpose than that for which it was made. Lord ELLENBOROUGH.-I have heard your objec tion,—think it has no foundation,—over-rule it,—and now we will go to something else. Mr. Whitaker underwent a long cross-examination by the defendant, to no purpose. Mr. E. LAwes asked the Attorney-General, if be went upon the first or the third count ; as he wished to know which the libel was read as applicable to ; for, having only the common faculties of man, he had compared it only with the first in the record. 'Lord ELLrwaoaovcrt.—As• applicable to any. If it is stated differently in different counts, it was your business to discover that difference before you came ,aw and the fact of libel ; and were bound to acquit, if Rival guilt be not undeniably established. The case of Mr. Reeves established this ; in which the Jury found the publication improper, , but denied the crimi nal intention of the defendant in publishing it. If Mr. lox's Act did not bring within the purview of the Jury the Moral guilt of the publication of libel, it was wholly nugatory. It had been held, that the decla ration of criminal intention was a mere matter of form ; and I.,Prd Mansfield, upon the trial of Miller for publishing Junius's Letter to the King, and of Baldwin for the same publication, had held, that the words false, scandalous, and malicious, were matter of legal inference; but. the Jury decided the contrary, 4cl found the defendants not guilty. Upon tke trial of Owen for a libel on Alexander Murray, Esq. in 1/52, Pratt, Chief Justice, afterwards lAmil Camden., that Criminal intention was not proved ; and di is_cted the Jtirl to acquit the defendant. In the case or Almon tile bookseller, Glynn, Serjeant, moved for a new trial, upon the ground that the servant did not sell the libel with the privity of his Master. In the cake before the Jury, was there any subterfuge ? Vas ilibre not much to allow for, and little tocondentn ? In Hilary 'lserni, 17'29, a woman wag pr osecuted as the publisher of a treasonable libel, who had been long b:dridden, but' who served in the shop. It was held Chief lon. ,ie _ , _—_ here. !Summer Assizes at York, of the year A 795, in thel ate of Mr. Redhead Yor::e , in wh ich his Lordship The Gazette was put in and proved ;it being an allegation that such an order existed .in it as the libel 'was o:tinsel, that Gentleman's advocates were per- I quoted.—The defendant said, there had been no proof 'matted to.sross.ezaroine witnesses' and the defendant wherethe Gazette was obtained. kimself was heard in his own defence. Mr. Laves . Lord ELLesisettouoit--Your paper admits it: The requested for his client the s-4rne liberty now. There. roduction of the paper is evidence in all cases, of was a. printed report of that case ; but as the practice Pankruptc Vas not fantli-ar .to the bar , he tho u g ht it ti g ht to by. tn . ' ention fhe circumsta nce to his Lordship. The Defendant then proceeded to read his defence . Lord ELLENEnuovail rec ollected, that on that oc- He had chosen to commit it to writing, mistrustful of tr.sinn w;incsses were --iced by Counsel for the I the effect of his feelings, and desirous not to waste the -ecol7 what time of theCoart. In thusdi - --- ing his.' litslie was by the „ Justice, that she did not know of the li bellous intention ; and the Attorney-General with drew a Juror. The defendant concluded by pressing upon the Jury, that his life would be dependent upon another imprisonment ; and instanced a late example of the effects of, that Species of punishment producing first despondency, despair, and delirium, and ending in premature death. It might-be urged against him, that he continued the publication of his paperirom motives of lucre;—that 'nigh, be • attributed, With equal justice, to the soldier, or, incletd,to . the pleader. If he had acted upon that motive, he had not met .. exam: .._ ,!< fendant ; ' but , fsi - did not re! Ilea upon _____ . . ..igesti: , thoug! w — ith success ; su the heavy I, as of the law had rrounds the indtilgence - was granted to him. His I following the example of that great literary genius. ! - -_ .-_ .: had nu,. .. ,ordthip could personally have no objection to it ; Mr. GilbsrtWakefield, who was long immured within ! toti : he an i d nf a o d rai de a d ti , o a n t , but he was afraid of its growing into a precedent. the very walls from which he had just emerged. Mr. Tut totaship was Counsel there, and of course bow. Wakefield did but live to taste of liberty I wrested from him the greatest pottittn of his bard after i tamed Troll's. He recommended his ease to the synt b `point patliy o , t i . i i n a d w t , o ia tl . t h e ic j h us h ti e ce hrt o d f i t a h k e e J , Jury'; cd to the dismiss:l of the Court. " I w.ill tell you confinement in Dorchester gaol, and died. For the y the st t n •e o q f u h e i s s t d o e f fe l n ii c s 7 l , egal Advisers; that the exception i n what, Mr. Lewes," said his Lordship , " lie must defendant, 7s,pes:hap:,:eser reserved even a . worse s cal ,. :- eross.rxamine the witnesses tor himself ; but, it there inky, from which he had no prospect of escape, was nos done at their instigation.—At the conclu ke any question of law to which he is inadequite, he . in the troth and mercy of his Jury : and these he 1 rn:aut too call witnesses to speak of what he 11.1 d open4l. Mr. White was asked, whether be stroll' aie the ber.eftt of your amistance ; 1 should, trusted he should obtain, notwithtta Win all past . . . ' . • . ~ .v. . . .. . , ). . , i •-• .. • .„, ~ . „. . •-- . . ~ . . . . . . . . •-, . --- .. , . . • • - • - , . . . .- .. . .. - . • . ...... _ • • . • , I , . affect the Er ate was responsible for what was printed at his press— otherwise. the moment a man gets iuto jail, he might epee his engine for all sorts of libel with impunity. The defendant said, that be did not intend to call his witness, that the Attorney General might not have - the benefit of replying. Lord gLLEN DO ItO IiGU —lie has that benefit whether you do or net in this case, if he choose to exercise his right. The defendant then called his son, John White, who said that he visited his father in prison every day and acted as his amanuensis. lie knew of every,ar tide his hither wrote for the p aper previously to its being sent to London. The paper in question readied the defendant only on the Monday after it was pub -1 shed. He was with his father from 12 o'clock on the Sunday of its publication, and had been' so for many days previously. Tu the best of the witness's belief his father nsver knew of the libel till after it was printed. The defendant had not been .el7l pluyed in writing or readine; any such article, to the best of the witness's belief. If his father had seen it in ma xnuscept the witness mus: have known it. Upon his cross-examination by the ATTORNIV Ge- NERAL he said, he did not know who was the author of the libel. When asked whether he had not heard his father say whose it was, he asked Lord Elienbo rough if he was bound to answer that question? .er s Lord EaLeNnostounit—Certainly- 'l'lic defendant interposed, and Mr. T. LAWSS jetted oathe.question. Lord Eia.sasonouon reftved to hear the Counsel. , who, he said, had volunteered himself into a situa tion perfectly uewi and the Court expected that the , Bar would set the public an example in preserving the • order of justice. .. . The detendara complained loudly cf injustice, and - Lord Elleeborough cautioned him not to injure him sell by such unfounded complaints. The witness said, he might have heard his father fay the libel was written by an elder brother. This brother corresponded with his father once or twice a week. The libel was never contradicted in the paper, ! which was published till now, but wfilcbhial changed its proprietor, the witness's brother having become so since his father came to town. The brother con. ducted the paper while the father was in prison. Upon his re-examination. he knew that his brother had a discretionary latitude as to articles-under the head London, as the libel was. Such articles were written the latest in the week, and must be left to an agent's discretion. The ATTOANTY-GEWIRAL thought it his duty to say a few words in reply. This was his pried's, in an ordinary case, after a defendant had called wit nesses ; and would be so in this, whether he had or had not. The defendant had first objected that the offence was not committed in the parish and ward stated in the information, and claimed the same benefit as a burglar or a 'Murderer, of an error in the mete dings. The Attorney-General would take the toe of murdtr. That offence must be proved in the same county as the indictment charged, because the Jury Must be of that county ; but the parish was a Mere matter of form f and every murder in London was stated in the parish of St. Mary-le-Bow, in the Ward of Cheap, and executions had been suffered without any body's dreaming of taking any exceptidh to it.— 'rhe Learned Counsel of the defendant very wisely disclaimed all advice of such an objection's being taken tcoclity ; and the Attorney-General was almost ashamed to refute it. All that the defendant bad urged might have been properly urged as matter of mitigation ; but it had no bearing as to the guilt or innocence of the defendant under this information.— The defendant had endeavoured to excite much pre- • jadice against the Attorney-General, and had offered to give up the author of the libel, if he would have dropt the prosecution against the defendant. The Attorney-General could not enter here into the discus sion of what had passed between him and the defen dant out of Court—but this he would say, that no publisher of a newspaper had ever less reason to com plain of severity than the present defendant. He would go farther, and say, that none had ever bear treated with a greater degree of lenity. The de fendent had endeavoured to impose upon the Attor. • ney-General terms which he could not condescend to: accept. The'defendant did not dispute the libel urns which the law made a different comment from him ; nor did he deny its tendency to excite disaffection among the soldiers, or to slander his Majesty's Mi ' nisters. He only said, 4, It was not my fault that I published the libel—it was the law's." But let the defendant recollect, that the offence he had formerly been guilty of called for the , sentence of the law ; that he placed himself in Dorchester Gaol , and nothing was there unjust than for him to impute to the law a confinement wnich he brought upon himself. Having brought himself into prison by one offence, was her f to be permitted to send out firebrands ; and then say, I am not answerable for the mischief they may occa sion? When the Attorney-General asked the witness who was the author of this libel, he kucw from the defendant that it was his own son ; and from that time to this had no contradiction or disapprobatioa of it appeared in his paper. This, then, was a mere pre text ; or, if not, why did not the very next Sunday produce the antidote to the pois ii ? This might have been Bane without disclosing who was the author of the libel. The defendant had only to , :tete, that his I confinement subjected him to employ another editor of hii paper ; that ke had seen the libel with concern, and that he desired it not eo be imaerstbod as cola. ring his principles. If lie bad really repented, the road ' vines open to him ; and he ought to hive taken the ear- Pest opportunity of making rest; ti.tion and reparation. The Attorney-General desired the Jury to.being aa much favour towards - the defendant as they would-s -and, he desired the defendant might have the benefit of their favour—still, could his own friends. nay, his relations pretend, that if be had repented of the libel, he would not have contradicted it on the earliest opportunity ? His Lordship would, tell the Jury, that, by law, he who gars his muss is _~~,... • I I •• 1 . . . . . - • . otherwlik,, IseettAblanateetelitifselmeltl:oll4betuderceleactiede *O4 elhece, ; which, as fary related AG . i‘t... ' .10.0aochlte sel g elasiehaestialtatteice4 , i • . anima. You met airtime him ebeeltil*lrittealSO bun, he trisated wad he cosupletel,y.tffaoed - ftutu stOectillit ld go only in . mi - 64, --. tiCin astariot to am 7ls , to ask ;and, if there he any &atter Offlaw opcskthegy minds of the Jery,,, 4 IN the frac, platk he tna n an oh. tAI ,but . his Lordalii uishadtp. know whether it e I will-hear you as to dse law."- • ..4 1 .,, .- , jection that the.plegeek publication, as set forth .in defendant would preier having it on his nores, or by Mr. E. LAvras then tegnettedto be allow rotate the information, inut ehonfous. The libel was there affidavit before the Court hereafter? ed an objection as to the copy of the affidavit. which stated to have beau ise,blished in the parish of St. The defendantsat first chose_to wain; but the Fore- had been put in to prove the responsibility of the de. Mary-la-bow, in the ward of Cbeap ; whereas, it was man of the Jury saying it would be Inure satisfactory fendant to whateier was contained in the Sunday in fact published in the parish of Christ Church, in to his ni;ad to hear it, the defendant called his wetness. newspaper, called the Independent !nig. The Act of the ward of Farringdun Within, He should be told, . Lord ELLENISOIIOCUII told the lar)man to what . plie nßrh a rho IC;nrr_ °thick recoonised this as suffi- that proof in London waa sufficient. If so, why in- extent only it would affect the cave. Every printer ... ......