Star. — London, England, 1820-11-17 00:00:00

consequently they. Were entitled to a new trial. `here was no evidence at all that a criminal act had been committed within the jurisdiction where the trial took place; and, under all the circumstances, doubt enough, he conceived, had been raised in this extraor dinary and long discussed case, to grant a new trial. Mr. PHILLIPS followed on the same side. If he was to understand from their Lordships that the mare writing had nothing to do with the present question, lie should not trouble their Lordships with a single remark on that part of the case. The CALEB JUSTICE.—We have more than once iatiniated, that we do not consider ourselves called upon to say whether or not the mere writing amounts to a crime. Mr. Putuurs.—lf I am to understand, my Lords, that such is the unanimous opinion of the Court, shall certainly not occupy the time of the Court arguing upon it. The Learned Counsel then pro ceeded to reina' k upon the various cases cited by :Mr. Denman, and to urge their applicability to the present argument. With respect to the doctrine in Paine's case, he observed, that as it was stated to have been pronounced in one, of the Reports, it was an extra-judicial opinion. He then proceeded to re mark upon the authorities derived from the Civil Law, and contended, that the remark of the Soli citor-General, accompanying the quotation from Vinerus--Nam utrunique est a innyosuni, was not ap plicable to the present proceeding. Since Vinerus went on to say that it was questioned, and as he adds, nietito. In cases of forgery, it had. been said, that there was a crime committed by the very act of alteration or addition, but the present proceeding was very different from the case of forgery. It was said, that the publication was a medium of proof, but it was quite certain that the publication was ne cessary to constitute the crime, and a medium was not essential for the purpose. The Commentary of Coke was decisive, he states, that such persons as shall publish the false intelligence only shall be pu nishable. The laws of Edgar spoke of such persons only as of their own heads propagated the intelli gence, and rendered it punishable by the loss of the , ' offender's tongue. As to the point of publication the cases were all of one character, proving that the offence should be completed in the County where the person committed it. It was said the inception of the offence commenced in the County of Leices ter, and that sending it from thence was a publica tion. In all other cases analogous, if the offence consisted of parts (each consisting of a complete of fence in itself), every part so constituting an offence must each be tried in the County where it was com mitted. Such was the decision in a case where poison had been given in one County, and the death of the person poisoned had taken place in another. Mr. Justice BAYLEY.—There would be perhaps a difference of opinion as to the course which might be taken with a person who had written a libel in this country, and sent it over to France for publication. Mr. PH ILL: rs—He must contend that the prin ciple he had throughout advocated was not sup ported only ou the authority of the nuisance case, an d oa the c Ise of usury alluded to so impressively by his Learned Friend, but the case of nuisance mentioned in Fitzherbert, was one where the same principle was recognised, it appearing that the nuisance was occa sioned by raising piles in the River Lea, within the County of Essex, whilst the effects of the nuisance were experienced by the parties to the indictment in the County of Middlesex. With respect to the pub lication in Leicester, he contended it was not proved that such a publication had taken place. Even the law was not such as had been stated, that the mo ment the letter was put in the post, or given to a servant, the offence was completed, as was obvious by the decision in “ Metcalf and Martyr," Third Term Reports. Mr. Justice BAYLEY.—Then you say nothing is a publication except communication of contents. The Learned Counsel admitted that such was his construction of the law. The letter was found in Mr. Bickerstaff's possession on the 22d, and Mr. Brookes said it was delivered to him under the in junction to publish it in Middlesex. The first know ledge of the contents of the letter was derived in Mid dlesex. It was fair to suppose, then, that Mr. Bicker staff was in Middlesex one or two days before; this might be as well presumed as the presumption on the opposite side, that Sir Francis Burdett had written the letter when in Leicestershire, because he was seen riding on the 2'2d and 23d through a toll-gate, near Melton Mowbray. As to the principle that a delivery from the band was a proof the defendant had written it there, would any reasonable man then contend, that Sir Francis might not have been at any time during those days in any other County? Rut landshire was in the immediate vicinity of this very toll-gate. In the case of the seven Bishops, it was proved that the libellous petition was in the hands of the King, and it was also proved to have been in the possession of the Bishops by their signature the ob vious presumption was., that it must have been given to the King by them, and it rested with them to dis prove the fact hus presumed. Mr. Justice BAYLEY.—The objection then was, that though they might be inferred to be the publishers, non constat that they had so published it in the County of Middlesex; and until Lord Sutherland was called, no evidence decisive of the fact of delivery was at all adduced. The Learned Counsel here read the Judge's notes on the occasion of summing up to the Jury, and beg ged the attc ition of the Court to the subject. He had stated, that " if there were no evidence of the publi _ cation satisfactory to the minds of the Jury, that would be a circumstance of which he would have the full benefit on the trial with the Jury. The en velope might, for aught he knew, have been opened and seen in Leicestershire, which would have the ef fect of publication. Elle wished the attention of the Court to be directed to this sentence.) The person accused had been seen at Kirby Park on the day which was the date of the letter, and had been seen on the 22d and 23d passing along the road in its neighbourhood by a toll-gate-keeper. The corps dolsrti, therefore, of the offence was committed within the County. It rests with Sir Francis Burdett to chew that he did not deliver to any of the persons mentioned the letter in question. From the evi dence, I have little hesitation in saying, the Jury will be warranted in agreeing to a verdict, that the libel bad been published and delivered with that intent in Leicestershire." Now, in this charge, notwithstand- ing the Judge had said, that " for aught he knew" the envelope might have been opened and seen in Lei cestershire, the Court would see that it was not at all probable, because there was.,no proof whatever of Mr. Bickerstaff having ever been seen at this time nearer to the place where the venue was laid than one hundred miles. It was then said, that the bizbpre sumption was extre ly strong that Sir Francis Bur dett must have pu ed it in the County where he was then known to eat the time. What would be the weight of the presumption, if it were only con sidered for a moment that Sir Francis Burdett might 1 in any of his rides have delivered this letter himself lat a Post-Office in any part of the neighbouring County of Rutland, or elsewhere? The proof of the fact would then lie with himself, and the nature of his situation as a defendant, would close his mouth for ever as to the point on which his defence solely could have been established. Something had been said of its being given by Sir Francis Burdett, at Kirby Park, to an agent in Leicestershire, with a view to its publication in Middlesex. Now, there was not the least proof of any such thing being even probable. A similar observation might be made with respect to the presumption that this.letter mast ne cessarily have been delivered by the defendant for publication at Kirby Park. Such was the impression created oa his mind by the view he had been able to take of the case which had so deeply interested many. He regretted to - say, that it appeared to him too great a deference had been paid by the Jury to the impressive and eloquent charge of the Judge on the trial. It seemed to him, that an impres sion had been created en their minds which was by no means warranted by the evidence adduced on the trial, but was frequently at variance with it.— Their Lordships had often seen the complete surren der which men in a Jury-box made of their own judgment and impression, in deference to the supe rior acquirements and knowledge of the Judge who presided.. In the case of the nuisance by windmills, when an accident had occurred in a County different from that in which they were 'erected, it had - been considered necessary to state the Parish and County wherein the accident took place, as well as that which was the locus of the nuisance itself. It was obvious, too, that the nuisance might be felt injurious in vari ous Counties at once. . Mr. Justice BEST.—There might possibly arise no nuisance to the inhabitants of a county ,where the cause of the nuisance originated, as in the breaking down sluices of a dam or river. Mr. PHILLIPS.—In Fitzherbert it was laid down, that a nuisance in one county arising from the state of a broken wall, might prove a nuisance to a party in right of his holding property in another county affected by the state of the . wall ; but it was observ able in all these cases, that the decisions given re cognized the principle, that there was a wide and material difference as to the principle of law respect ing the venue in cases of a civil nature, compared with those of a -criminal nature—in the latter cases the limitation being strict, in the former of consider able latitude. In the usurious case, Scott v. Braham, reported in 2 Term Reports, the Learned Judge, Ashurt, was of opinion, it was true, that where the money was received on account of this usurious con sideration, and the account finally settled, the venue should be laid. In this opinion he was single. Mr. Justice BEST.—No ; in the case stated in the Reports, it is said, that Justices Buller and Grose were of this opinion also, and their reason then given was, that the offence was not consummated before the usurious consideration had been paid, which oc curred in another county. This, though a penal) action, however, was one not strictly applicable, be cause the present case was one of a highly criminal nature, and he would only, therefore, again remind the Court of the necessity there existed to distinguish between civil and criminal cases. The Rule had cer- I tainly been extended so far as related to penal sta tutes; but the old and original distinction prevailed as to criminal cases, where it was as strictly pre served as in the selection of a Jury from the vicinity of the place where the offence was committed, in stead of from the body of the county, in cases of felony. The reason given for this rule by Lord Coke is-simple, that the Jury of one county, by the law of the land, could not inquire into an offence commit ted in another. Mr. Justice BAYLEY.—Then, on the contrary, it might be argued, that a Jury in Middlesex could not try an offence committed partly in Leicestershire. Mr. Justice BEST—So that, by your argument, the offender must necessarily be acquitted, let him be tried where he would. Mr. PHILLIPS would not contend for any such con struction of the law. He would suppose the case of a subject of this realm entering into a foreign service, which, by the Act of the Sd of James I. had been made felony. Lord Coke had said, this offence was not triable in the place where the offence was corn-' pleted, for that- was in a foreign country ; it was therefore necessary, and such was the rule of law, that he must be tried in the country in which the port or haven was when he bad so embarked to serve under a foreign Prince ; but this was a case met by a distinct exception in law, dictated by the necessity. f the case. Here the offence was laid and committed within the realm, and the objections, he hoped,would be considered conclusive, that his Learned Friends had argued this case under a fallacious view of the subject. This case was one of deep interest to the party and to the Public. It was an object of great importance to the community, that the adminis tration of justice should not only be perfectly pure, but also unsuspected. He concluded a long and able argument, by expressing a hope that their Lordships would be of opinion the defendant should have the benefit of a new trial. Mr. 13Lacxavanz professed he had nOdisposition to trespass, on the present occasion, longer than was necessary, and consistent with a mere citation of the opinion of others, after the able examination the case had received already. His view of the case was this, that either writing libellous matter was an offence, or that writing with publication was an offence, which he did not doubt, or that publication alone was an offence. As to the venue where this indict ment was made, he trusted that his objections would be found so strong as to prove decisive of this case. In the case of death, occasioned by a stroke given in another county, there was, it appeared by the judg. ment, no option given as to the venue, which it was now held should he laid in the cour..where the death happened. Lacy's case was similar, or even still stronger, who, having struck a man at sea, wbo afterwards died on shore, was discharged as not tri able at all, the offence having been committed in no county. The case of murders had supported the reasonable construction of law on all offences which had two distinct pails necessary to constitute the of fence. The law was settled, that it wai not possible to try a misdemeanour with the same latitude, as to place of venue, as hid been laid down in penal in dictments. In this case, the obvious inference was, that the offence should be tried, not in Leicestershire, where no one knew or heard of the letter, but in Middlesex, where alone it obtained publicity, and the consummation of the crime took place. 44 The King v. Bier" - would no longer be decisive as to writing alone. 44 Tee King v. Nell and Carter" was strong indeed, if it were not now doubted whether it was authority, as the punishment of the apprentice of the printer, who only set up the matter in types, was rather severe. .As to the culpability of keeping by one a libel, it was only punishable in' the Star Chamber, as would appear by an anonymous case in Ist Ventris. The Libel Act decided, that a Jury should be judges of the intention of the writer, as well as the publication; but, in its enactment, it ap peared to confine itself only to the publication, and was not applicable to the fact of writing it. There was enough of authority to establish the doctrine, that if a man wrote a libel from the dictation of ano thee, he was guilty of the offence of libel. The Learned Counsel then argued, at some length, that there was a deficiency of proof of the publication in Leicestershire. He agreed with Mr. Phillips, as to ,the presumption being so strong that the publication took place in Middlesex as in Leicestershire, from its being first found in Mr. Bickerstaff's hands; and he could not see that, though the facts were certainly different, the principle of presumption was the same in this as in the case of the seven Bishops. Mr. Justice BEST.—There was not proved one act to have taken place by the Bishops in Middlesex. Mr. Justice BAYLEY.—The Bishops, you perceiie, had admitted the making, but had not said where they had made or written the libel. The publication' in person, or causing to be published, was equally an offence in law: A libel might depart, however, from the custody of its writer, and yet not amount to a publication ; as in case of its falling into the fire, and afterwards being recited by himself, out of vanity, to other persons; or it might be lost in the streets, and be published by other persons. The CHIEF Jusrtec observed, g►at Mr. Justice Holroyd being obliged to leave the Court, they would not be able that day to proceed further with the argument. The ATTORNEY-GENERAL begged IO know whe ther the Court would come to any determination when they would have leisure to resume the argument? Mr. Justice BAYLEY said, there were already fifty four cases on the special paper, and fourteen motions for new trials set down. The Court must absolutely get through the special paper first, before anything could be done further hi this business. COURT OF ARCHES, NOVEMBER BUTTER V. ROBSON. This was a case of subtraction of legacy instituted by the plaintiff, Thomas Butter, against Mr. Robson, one of the executors of the late Henry Holland, Esq. to recover a legacy bequeathed in the following terms: " To each and every of my servants and clerks who shall have lived with me, or been in my service for three years, two year's salary of wages, at the rate of such salary or wages as they have previously re ceived ;"—and the question now was on the admissi bility of the libel pleading such subtraction. Dr. SWA' in objection thereto, contended, that the interest o f alleged legatee was not set forth with such distinctness as it ought to have been, and he cited a case from 2 Vernon, 547, in which it was said that a Steward of a Court Baron, who officiated also far other persons, was not to be considered in the light of a servant attached to a particular individual. Now it might happen that the plaintiff Butter had served Mr. Holland in some such vague and tempo rary capacity, and then it .would be in the power of the executor to resist his demand, which he could net do on the present plea, which was in the general terms of the will that he had served Mr. Holland two years, without specifying how or in what capacity. Dr. ADAMS, in support of the libel, denied that it was necessary to plead more specifically, inasmuch as the libel exactly followed the words of the will; and it might, perhaps, happen, that in describing Mr. Butter's services, they might find some difficulty to give a clear description of them under any one par ticular head, as Mr. Holland employed many clerks or servants in a sort of intermediate capacity. Sir JOHN /sitcstou. said, "the only question here is, whether the averment in the libel, if proved, will en title the claimant to recover the legacy? and I think in a common libel . of this kind it is not only unneces sary to go into great minuteness of specification, but it is more proper to follow in the averment the exact words of the will. Here the third article states the bequest, and the fourth article strictly follows it, stating that the claimant was in the !ervice of the late Mr. Holland for two years at such yearly wages. If the service was not such as to entitle the legatee, the executors may counterplead but as the libel stands now, I sde no objection to its admission." Dr. SWABEY then observed, that there was a tech nical error which should be corrected. The citation first issued (properly) in this cause as against Mr.l ,Robson and his co -executor, but the libel does noel follow the citation, as it undoubtedly ought to do, but is directed against one executor only. It was suggested that there had been some difficulty in serving the citation op the other executor at the time (from his being abroad, or some similar reason), and therefore the libel only mentioned Mr. Robson. The COURT intimated, that though it might be more regular to proceed as against boll exectw)rs, yet undoubtedly either executor might be pr oceeded against, for each would be liable.—Libel admitted. An Inquest was held on Tuesday, at the White { Lion, in Jathes-street, Covent-Garden, on the body of J. Dawson, a salesman in Covent-Garden Market, I who Was .killed by * the wheel of a waggon passing i over him, he having been thrown from the back of a hackney coach, which he and others had•t4en is order to see the illuminations" in co nsequence of a ' drayman having backed his horses tug rapidly. Ver i diet—Accidental Death. POEIcE. MARLEOROUGH•STREET.—WedtIeSday, Mr. A!„ 4 . Slade, purveyor of meat to her Majesty, Tottenham. court-road, was• summoned to this Office, charl e d under the 10th of William 111. cap. 7, which goes to state, " That it shall not be lawful for any person, ' persons, to make or cause to be made, squibs, ror•- ets, serpents, or other fire-works, to be thrown, fired from their houses, Ste Mr. Dens, of Tottenham-court-road, attends' behalf of Mr. Slade, and stated, that the fire-wy were exhibited during Mr. Slade's absence home, but it met with his sanction. Magistrate.—That's no matter, Mr. Slade is swerable for what takes place at his house dui in:: absenCe. Were the ate-works let eff from the hola. - Mr. DEAN.—There was a catherine-wheel find a pole on the balcony. Mr. FARRANT, the Magistrate, was of opinion tl - n the manner in which the fire-work was exhibi!ed, came under the meaning of the Act of Parliame.; and that a fine of 20s. ought to be iaflicted. Mr. DEAN.—Surely, Gentlemen, at a time rse the present, when every kind of rejoicing is marii. fested, some allowance ought to be made. You, your official situation, have certainly a kii.cretionary power to overlook, or to mitigate the offence? Mr. FARRANT.—No, Sir, there is no discretionary power in our hands in times of rejoiciag more di.. i at others—such proceedings were likely to tend to • riotoind injury to passers by. Mr. DEAN.—Yes, but Sir, it is a hard case that Mr. Slade, who had no dispositicn to riot or iojer-, should be convicted for merely rejoicing on the pre sent occasion. I have no douhtbut that the time in the Magistrates will be pretty well occupied for month to come, if they notice such proceedings. Magistrate.—Well, we are here to protect the lic peace, and, I dare say, while we are here will cA our duty. Mr. DEAN condemned the proceeding, and felt i-- dignant that a respectable inhabitant of the patisi7, merely for expressing his political feelings by ra joicirgs, should be so persecuted ; he would make it known to the Public. Mr. Slade was fined in the penalty of 20s. Mr. Butterworth, Mr. John Goldsmith, and J. Bryan!.rf Hampstead Road, were fined in the same amour. charged with letting off pistols opposite the above house. They immediately paid the fines. Seven others - weiv also fined for like ..ffences. 40w-STREET.—Yesterday, a . Gentleman came to this Office, in a splendid equipage, emblazoned wi!h a Royal ,llucal Coronet, and informed Mr. Bi usu., that he attended by command of the Princess of CUM. EERLAND (Mrs.OLAVI A VILMOT SERRES), who re-idei at 25, Alfred-place, Bedford-square, to communicate to him that an attempt had been made upon her On Monday night she was at the window of her cham ber, when she was alarmed by the breaking of a pane of glass immediately over her head ; and on the fol lowing morning her attendant found a pistol-bullet on the floor, and on examining the aperture in the glass, it was found to be such an one as a pistol-bullet would occasion; .and the Princess then remembered that at the time there was sonic firing in the street, but she attributed it to the 'persons who were zejoicing. The circumstance had excited:considerable alarm in her mind, and she was too much indisposed to it:aye her house, but she wished to make a deposition of die fact, and requested tne attendance of a Magistrate at her-own residence. Mr.BIUNI z asked if she suspected any particular person of the crime of attempting her life? The Gentleman said she did not. Mr. Blame sent an Officer to the house, and he returned in a short time, stating, that he had found the window is the state described by the applicant, and had seen bullet, which was a little flattened. The Lady, how. ever, was not satisfied, and wished much to see tine Magistrate. Mr. BLAME then drove to Alfred-place, and had an interview with the Lady. He also saw the window and the ball, and he expressed an orinio2 `that it must have been fired from the oppo,ite the street, and that the ball must have been nearly sport when it reached the glass. The bail was extremely • small. This is all that has at present transpired. SEDUCTION.—Some time ago a beautiful girl of sixteen, the only daughter of a Lady, residing at Earner's -terrace, Chelsea, was missed from her Itom,, and no trace could be obtained of her for some day. At length it was ascertained, that ir. her walks, which she was in the habit of taking in the King's-road, with her brother, she had several times met an elderlf man, of gentlemanly appearance, who entered in:l conversation with her, and that on the day of her elopement, she was seen to get into a chaise ar .: four with him, and drive rapidly away. It- was alto as certained from her little brother, that the man repre sented himself to be a Peer. In consequence, an en quiry was made amongst the Lords; but no Ncble man could be found answering the description of ale seducer. An application was then made by a May; M. and another Gentleman, to Mr. BIRNIE, and the Magistrate ordered SalmOn, the officer to ire vier! possible effort to trace _the fugitives. In a few days it was ascertained that the seducer was ai..w.t:ds of 60 years of age, and that he had conveyed the al• happy girl to Scotland. Having made this disco. very, the parties again requested the advice of Mr. Brume, and, at his recommendation, a writ cf beas Corpus was procured, commanding the setitne: to give up the body of the young Lady, she Eel i 2 t • minor, and a messenger was iminediately sect 40 3 Scotland armed with this man a - e. From inform , tion. received yesterday, - there is no doubt that Ile young Lady will he speedil3c restored to her parent. DI El). At Monte Video, on the 29th of Amus e th e yu l uarabk Lieutenant Henry Finch, It.N. On the Ist inst. after a painful ilatlgy Dlrs. Sarah Ilic:onl% relict of Mr. William Talbet Richards, mad suothis of 1 1,5 t Edwin, of the l'hestre Royal, DrurrLatte. Mrs. Rich-till: %II for many years the inst comic actress on the Dublin der the management of Messrs. ltyder noel DJy, w:14:1 - c universally admired fur her. public talen t s an d mutt conduct in private life. It is to the credit of Mrs. Ely.in, 1, " record, thht; long before infirmity had rendered her par :Iv- an: l for professional labour, she withdrew thtia front the 6ta,;?....0 -ported ported theut by her own industry, and gave mg:11a: to war age, till, on her affectionate bosom, they both szp;retl• HIGH-WATER at LONDON BULDG TO-:40: 1 ( *ming • • is blillyte3 :Ater • • Aft& rnson . - . 46 LONDON Printed and published by Limn Ku's, Ocic.!, race, It in plc- 14r, NI 1.-. ....- Nol 1 the', to I be 1 Tri km ioj • lei -ad Tim de an -a Pe • dr . ' 1