The National Register. — London, England, 1811-02-10 00:00:00

LAW REPORTS. COURT OF OF KING'S BENCH. WED?IESDAT, sss.6. THE KING V. J. KING. A Rule Nisi was granted in this case on a motion of Mr. Common Ser jeant, to shew cause why a new trial should not be granted. The defendant, who was present, stood Committ ed MiI•MMS THURSDAY, FIB. 7. THE KING EUGENIUS ROCHE. Mr. ATTORNEY-GINERAL moved for the judgment of the Court on the Defendant, who immediately apppeared in Court. Mr. ATTORNEY-GENERAL then informed their Lordships, that the defendant was. the Editor of The Day Newspaper, and had let judgment go by default in a Criminal Information which had been filed against him for inserting a Libel against the Army in that Paper. It was the same Libel that Fisher and Harvey had received the _judgment of the Court for, and Mr. Lovell, the Proprietor of The Statesman. The Criminal Information was then read by the proper Officer, which set forth, that the Libel consisted of charging the military with cruelty on the day that Sir Francis Burdett was taken to the Tower, and wantonly spilling innocent blood. The defendant put in several affidavits. made by himself, and by Messrs. George Vincent Dowling, David Kirwan, Edward Seymour, and Peter Courtier, gentlemen lik ew i se on t h e li terary establishmenti of The Day ; from which it appeared, that the proprietorship of that paper was divided into 1300 shares; and that the pacer was conducted by a Committee of 13 of these Proprietors, together with a Chairman and a Secretary. The paper is well known to be the propel yof the Auctioneers. It was at first edited by a gentleman, who had the entire manage ment of it, and gave to it what political tone was consonant to his feelings; and when it was conducted in this manner, the defendant filled the situation of second writer in it. 'Fhe Com mittee afterwards saw reason, however, to make an alteration in this plan ; and upon the secession of the first editor of the paper, that office, as fir as related to the management of the parer, and the conduct of its politics, was assumed by the Corn nuttee themselves, who appointed the defendant nominal editor under their entire controul. For the purpose of giving in his name at the Stonp-office, as the law required, five shares in the paper were transferred into his name. Previously to the publication of the libel in question, it had been settled by the Committee, that, for the purpose of increasing the sale of The Day, the popular side of the question relative to the apprehen sion of Sir Francis Burdett by the Speaker's warrant should be taken by that pa er; it having been found that the sale de creased by the circumstance of its having sided with the pro prietors of Covent-garden Theatre in their dispute with the public. The defendant gave it as his opinion, that this measure would c , :rtainly have its effect of increasing the sale of the paper; but added, that the politics of Sir Francis Burdett did not coin cide with .his views; and that, although he considered it his duty to conform to the wishes of the Committee, he must not be expected to support the principles of Sir Francis Bur dett with any degree of warmth. On the evening before the publication of the libel in question, Mr. Dowling was appointed by the Committee to go to Piccadilly, for the pur pose of repi.rting the conduct of the populace and the military there assembled. Mr. Dowling arrived at Tke Day office about one o'clock in the morning, and was met there by Mr. Harry Phillips, auctioneer, of New Bond-street, the Chair man of the Committee, with whom he held a conference, in which the defendant did not join. It was sworn, however, by Mr. Dowling, that he took Mr. Phillips's instructions as to the tone of the article which formed the libel; and that upon Mr. Dowling's asking him what he was to say of the military, Mr. Phillips replied, " dont spare therm." At this late hour Mr. Dowling began to write the libel upon very small slips of paper, which were carried away to the printers as fast as they were written, without giving even Mr. Dowling an opportunity to revise them. The ekferioant waited at the office till five o'clock, in hopes to be able to revise what Mr. Dowling had written; but upon his asking the printer fir a proof of the article, he was informed that tnere was not time for him even to have a sight of it ; and that such revise could be of no use, since, if the defen dant were to mark any thing for correction, it would be quite impossible toe such correction to be made. The printer of the newspaper had contracted with thy- proprietors that the paper should be ready for publication every morning by six o'clock, and had received orders from them, not to obey any commands which sle.oid militate against this punctel publicAtion, und er . penalty of io;inghis situation ; and IVl , ssrs Dowling and Flu . vtran's allidaVit staved Instances fn which the dtteridant's otAlexs 0-5 had been to their knowledge forced to yield to these general ones of the Committee. Upon the publication of the libel in the morning (till when the defendant never saw it), he saw its inje rious nature with regret and horror ; and, for the purpose ofi. counteracting its effect, he caused a letter to be written, signed " A Loyalist," and entitled " A Vindication of the Army,' ' which was two days after inserted in the same paper. This in direct apology for the libel was the only one the defendant could insert, as it had been ordered by the Chairman of the Committee that no direct apology should ever be made for any article is The Day. The defendant contrived, however, to insert two paragraphs in the paper, in direct contradiction of the statement which had been before made, relative to the conduct of the sol diery in Piccadilly ; and otherwise endeavoured to counteract its effects in a paper, of which the defendant was the uncoit trouled editor,—The National Register. Since the period Of the libel, the defendant had become less restricted in his conduct of • the paper, and it now bore the character of a Government print, to which tone the defendant had brought it round by degrees. The defendant put in other affidavits by Mr. Hoare, the banker; Mr. Derby:hire, the surgeon; and others, as to his peaceable character mid loyal principles; and the surgeon fur ther swore that the defendant had been afflicted with an asth matic complaint, and had at times been visited with a spitting of blood ; and that he verily believed the dampness and confined air of a prison would endanger his life. fhe A•reottN ev-Geteeee r. began his address to the Court by stating, that from what taken place at the time that Harvey atel Fisher had been brought up for judgment, he would now have little occasion to trouble their Lordships, as they then beard what he had to say on this cause. The only question ite his mind for the Court to consider was, whether the defendant could attain his object by the affidavits produced—whether or no they could serve to extenuate the effence of the defendant. For this purpose the affidavits, he thought, had stated too inuele. The Attorney-General then explained the law as relating to the responsibility of the Editors of Newspapers, and defended e s policy ; how then could the defendant, when he had once divas in his name, attempt to withdraw it, and place the responsibility' on another. Though the Chairman of this Committee was greatly criminal, though he ss as, at the time of the offence, with drawn from public censure, and now brought forth as a shield under which the defendant might shelter himself, could such is subterfuge weigh a feather in the judgment of the Court? Could it be suffered for a moment, for an Editor to bay that !lie was merely nominally so? What mischiefs would arise from giving any countenance to such a doctrine. The Learned Geo tleman, after a few more observations to prove the respousihi lity of the defendant, ended with declaring, that he was unwil ling to trouble the Court on the subject of the paper, and; lett the whole to the consideration of their Lordships. Mr. GRORGE MARIOT addressed the Court for the defendant, and began by stating his own inexperience in matters 01 such magnitude, never having before appeared but in causes of importaece. He feared therefore that the defence of his client might he in his hands ;educed to comparative weaknesi, ; but, under every circumstance which had appeared, he was in duced to hope for a mitigated sentence. He would not, how ever, attempt to extenuate the conduct of his client by any at-- tempt to defend the libel itself. He stated several ICASUIIS to shew the impropriety of such a proceeding on his part. His own private feelings would revolt against it, inasmuch as lie considered the Attorney-General exercising a duty very salutary to the press of the country, and, in his mind, the man who would endeavour to encourage the licentiousness of this instru ment of public instruction, to which this country is so much t e debted, would be found as great an enemy to. the welfare and. happiness of his country as the man who would endeavour to subject it to the degrading thraldom of a licence. He proceeded to comment on the affidavits, and ou the conduct of his clieet. It was a circumstance, he hoped, that would weigh • with. the Court, that, as soon as the defendant perceived the mischievous tendency of the libellous paragraph, he recommended a pablie apology, and when this was, according to the principles of the Directors, refused, he even inserted one of an indirect stature. He would also offer in extenuation, what he hoped the Attor ney General himself knew, and would admit to be of some weight, that he sees proprietor of another paper remarkable fur loyalty, and also that, in the very paper itself, the nominalcon trout of which was in his hands, but the real in :he hands of others, he had inserted two or three subsequent apologies. From the affidavit of Mr. Kirwan and Mr. Dowling A : the innocence and loyalty of his client was clearly manitaat.— He dwelt also on the affidavits of the very nespectableperaons who stool forth in defence of that character, and. said, that, under the circumstance of very ill health, a long confinement would .almost lead to the certain death of the defendant, ..The Attorney-General had spoken as to the time that be lecame Editor 61 the Paper, was stated • to be tinearlier than las% and be has eveie stated tbsanaeries ant Soule THE NATIONAL RF,GISTrII.