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EI,A iV .

(From the Freeman's Journal.)
COURT OF KING'S BENCH, DUMAN, JAN. 25

THE ICING, AT TrtE PROSECUTION OF TILE ATTOKtiEy•
GENERAL v. CHARLILS BOLTON JOHNSTON AND TI-
MOTHY HAYDN.
TRIAL Al' BAIL.-(SECOND PAY.)
This morning at ten.o'clock, the Judges took the r seats on
the Bench. The Court was crowded as on the preceding day,
but from the excellent arrangerrr,mts made by the Under She-
riff, the.auditory were in' no material degree inconvenienced.-:-
The Chief Justice immediately proceeded to state the judgment
of the Court as to whether the communications had between
Mr. Rody White and Ehe defendat, (Haydn), were confiden-
tial communications between attorney and client, which it would

be improper to disclose.
In the else of Wandsworth v. Hamblin, 2 Brod. and Bing.
note p. 5, decided by the present Lord Chief Justice Abbott,
Ist March, 1819, it was decided, that no communication was
privileged communication, unless on a matter of business ;
Est
this decision had been overturned in the case of Cormack D.
Heathcote, 2 Brod. and Bing. decided on the 29th February,
1024, and also by case of Willkins v. Mundy, (CArringron,
'168); and also by the case of BrVirivrell v. Luz.,s, r,:arn.-ar 2.

•
Car., 748.
The COURT were of opinion that, under these dnisions, the
communications between Haydn and White Must b consider-
ed as being in the nature of professional, and, therefore, privi-
leged communications, and that Mr. White should not be coin-

pelled to answer.
Witnesses were examined who proved Mr. Haydn to have
been connected with the Paella, Evening and S!ar.
Mr. Nowrit now rose to address the Jury for the defendant.
Johnston, and he thought it right, at the ou,set, to afford a full
and frank admission, that if the production which had been
given in evidence bore the interpretation put upon it by his
Majesty's Attorney-General, that Gentleman would be want rig
to himself, to the Lord Lieutenant, and to the country,if he
did not make it a subject of prosecution. But it was not a libel,
Such as the Attorney-General had declared, or, that he came
there that day to defend. If the character of the publication
were of the description imputed, he should, with an utter hope-
lessness, have shrunk from the (;!fence of any man, who could
have been guilty of giving publicity to a document so foul and
false as that described by the Attorney-General. But there
were two inquiries necessary, and in the consideration of these
he would require, and be entertained no doubt but that he
should receive, the aid of the Bench. The two questians carte
shortly and simply these. First, did Johnston publish the
libel as charged, and secondly, in publishing it, did he trans-
- tress the fair limits and boundaries of public discussion And
in the consideration of this latter queStion there were sortie roles
of law, which appeared so perfectly plain, that it was quite
impossible to dispute them, before the minds of the Jttry, who
were calm and well-judging men, could b' coerced in pro.
nouncing • that Johnston had been guilty of f,iving publicity.
It. was no crime, by the laws of England, to be the proprietor
of a newspaper, In which a seditious libel may have trade its
appearance—no man was called on to plead to such a charge,
and the Counsel of any person accused, would advise him. to
_demur to such a charge. It was no crime to keep a book-
seller's shop; it was no crime in Mr. Milliken or Mr. Archer
to have sold a seditious libel, bit. having given publicity to a
particular pamphlet in which there existed libels, it'tlim be-
came a question whether the bookseller published this pamphlet
or not. So in the present case they must first be convinced, that
the article declared a.s in the inuictinent was libellaus, before
they convicted his client, Mr..iohnston, of the publication.
That Johnston published the article, was a fact which tile
Crown should have proved by distinct cogent evidence, arid
it is a fact not easy of Fool in all cases. No well- Aware
were the officers of the Crown of this diflieulty, that the I ezis-
lature had enacfed an express law to relieve the Crown 1.70:11
that embarrassment, and making it imperativie on the publishers
and proprietors of newspapers to make an affidavit of their
bring the only persiOns exercising their respective duties is
each newspaper establishment, and .obliging them also to
poait a-nttm her .44.crch,of *sir pnbli:ations,,Avhir.ll,iNigimvettelt _
times be evidence of the contents of the paper. These were the
statutable proof's which the Crown was enabled to make, of
articles published in each paper- Accordingly, the Crolep re-
sorted to the provisions of this statute in the present ease, and
an attempt was made to prove that Johnston was the registered
Proprietor, and had made the 'affidavit of his responsibility at
the stamp-office. -To prove this fact, several witnesses were ex-
' sunned, the anion:lt of whose evidence was, that it appeared the
name of Charleallolton Johnston was subscribed to an affidavit
made in the stamp-office, but' an intpartant link was yet want--
ing—that is to say, the ideetity of Johnston, which was not at
all established be any evidence given during the trial. The
CroWn not only neglected to examine the„ottiaer before whom
the affidavit was sworn, but also neglected to rend the affidavit
•

itself, and Johnston was not di...Terre proved to be the statult-;
ble proprietor. The'case, therefore, stood as against him, upon
the old provisions of the old law of the land, and he (Mr. North)
thanked trod, they did again breath under its constitutional and
protecting influence. .
The So Lit: ITO tt-GE RAL here rose and requested permis-
sion to read the document, which form had been accidentao
omitted ; but as it was already in proof, it ccsuld not be consi-
dered in the nature of new evidence, and therefore not to be ob-
ject; d to. • . . . .

Mr. Nowt."' and Mr. O'CONNELL both strenuously object-
ed to thc reading of the affidavit, after the case had cloSed on
the part of the Crown.
The COURT were of opinion, that as it Was a document
which had been already in proof, the Crown was privileged to
read it.
The affidavit was then about being read, when
Mr. Norms, in a very energetic and animated tone, said, he
would concede to the Solicitor-General that the Crown had—
had what ?—a scintilla of evidence that there was an affidavit
sworn, but there was one position which no Solicitor-Ceneral
would dispute ; namely, that if the Jury were not satifi- d, that
the Johnston who swore that affidavit, was the same Johnston
against whom the information was tiled, he did not come with-
in the meaning of the statute. There was a rule of evidence
Which he would denominate the Magaa Charte of legal
rights. It was an impenetrable armour, shielding their pro-
perty and lives, and through which, neither the authority of
power nor the finesse of legal ingenuity could penetrate. It was
that rule of reason and law, that a party is bound to produce the
best evidence the nature of the case would 'admit of. Scintilla
was a Latin word, the English of which was, a spark—just
something that could he discerned---same feeble glinim?ring, .
or " Will o' the Wisp"—not that steady, clear. refulgent light,
which, in the way of evidence, they should have thrown on
any fact they required to prove. The practice of relying upon
a scintilla itf evidence, and requiring juries to find their ver-
dicts on such prook, was of the most dangerous tendency ; it
was calculated to bring the law of evidence into a state of fright-
ful laxity, in which no man's life or property would be safe.—
But he would tell them what would have been superior evidence
—the production of a witness acquainted wtth the handwriting
of Johnson, or a witness who knew his person, and saw him
make and sign the affidavit, would have been superior. But
there was no evidence given to any such effect. Ile would now
proceed to wrestle with the phantom of evidence that had been
exhibited, until he. succeeded in chasing it to its grave. In
cases of murder, circumstantial evidence was received, because,
from the very nature of the crime, and the circumstances of
rprivacy which usually accompany its commission,
repulsedsececy andthe possibility of giving better evidence ; lost what was
the nature of the circunistantial evidence required in such cases ? '
NVlsy, a smiting of facts that could leave no doubt of the guilt'
of the party. The Learned Gentleman then proecedecl to com-
ment on the evidexce given to prove Johnston's having signed
the affidavit. Ile then drew the distinction between his being
the registered proprietor, or merely a proprieto:, under the
controul of the ordinary law of the land. In the latter charac-
ter, which he contended properly belonged to Johnston, it
would be for them to say, whether the evidence given was suf-
dolriewhaasd the authority of the Attor-
ney-General to afford a satisfactory conviction to any • reasonable
cognizant pf, the publica-
'::lniti statement of his, the recollection
of the prosecution—that he was considered
f
l god
proprietor. And what, he would a'k,
mtonife°iYnnw:lh6o, eaeirnta:sitlil '4bePskellnlie,e7i n their memories, that Johnston was
normal proprietor? A fictitious nawsoatst
Itellitenmdocertrsesjte,n)c(t7
racter,.-a person giving himself out for what he really is not,
and assuming privileges he does not possess. If the Crown
had not admitted that tact, he could not use the argument with
, the same effect; but how did. it stand,- upon the admission of
the Attorney-General ?—Why, that Johnston's, was not that
. guilty mind, which lent its powers to the composition of that
which the Crown considered necessary to prosecute as a libel,

but that his name was merely made use of by another. Couplc
that admission with the evidence or Kean, who stated, that
when he met Haydn, that gentleman became agitated on being
informed of the-ex qfficio„ and that he introdoced to the wit-
ness (Kearn) Mr. Johnston as proprietor. That was evider ce
they were not permitted to object to, -.but it was not condasitc
evidence, and was calculated to have the effect of misleading.
And if Johniton was put forward asilie proprietor, though
the nominal one, and that. Haydn stated in his presence that
he was proprietor, surely if Johnston consented to play the pro-
prietor, it was not to be expected that he would deny his being
such, but rather that lie would give an appearance of acquies-
cence to the character -in which lie had consented to be repre-
sented ; but the matter went further, for Haydn, Johnston,
and Kearn, having gone into a tavern,. what does it appear
was the conduct of Johnston ? Why, he'was careless and in-
different, and did not share the anxiety of Haydn, who, how-
ever, afteratards became somewhat pot-valiant, and said, " No
matter, here's the health of the Attorney-General, who is
about to crown the Star." Johnston's conduct was just what
would have been. expected front one not having any interest
in the crowning
.of the Star. But suppose he should go a
little further, and having satisfied the Jury that .Johnston was
not the registered proprietor, but was . something more ; that
he was, in fact, the real. and bona fide proprietor, yet he sub-
mitted that, allowing Johnston to stand in the latter/character.
tt 7re sees votesvidence NA conviot him 4 bting guilty of pub-
lishing the article for which he is prosecuted., For let him not
•
be told.that his being the proprietor of any paper, ist which a .
iibellous paragraph shall be published, will convict him of
being the publisher, because, under the ordiOary law, you must
lay your hand upon the manusctip!, and bring the publication
home to the publisher. Let them suppose. the case of two
proprietors, one living in France and the other in Dublin. The .
one in France_ is ignorant of his partner in Dublin having pub-
lished a libel, but he is equally , liable to the s•atutable respon-
sibility with the guilty partner,. if they should be the registered
proprietors. But otherwise, he would be only subject to that
responsibility thrown upon hint by the law which existed ante-
cedent to the statute. A man may be answerable for debts
contracted by his partner, but he is not morally or legally liable
for his crimes. As well might it be said, that the partners of
the unhappy Mr. Fauntleroy should have suffered the penalty
of death for his crimes. Men may. be partners in trade, yet
the law does not go the length of making them joint sufferers
in sharing the penalty of the laws for the criminal offences of
each other. Though one man may be made. civilly responsible
for the acts of another, yet it. is not because he is his coadjtia
tor, but because he acts under his directions; as in the case of
a bookseller, who is answerable for a libellous work sold in his
shop by his shopkeeper, because the servant acted fur the mas-
ter. But, under the ordinary law, it never was said that per-
sons, having a co-ordinate authority in • the management of a
newspaper, were each equally liable for 'the offence of the other.
If such were the case, it would noehave. been necessary to enact
the stamte.under which the present prosecution was sought to
he supported. - Having, he hoped, established a conviction in
their minis, that there was no evidence of Johnston being
either a registered proprietor, or the publisher of the article,
he would proceed to another topic; hut before he did so, he
would observe, with reference to what fell from the Attorney- •
Genetal, as to the rumour having' gone abroad, that he had
beets guilty of nmereikss persecution towards the .defendant.
Persecution' is 4 harsh • and offensive tern, and he had •
ever thought that exaggerated tennis produce no advantage,
and manifest b.llti taste. . Ile ails not instructed to charge
the Atturncy.44entral with persecution, and his own feel-
ing and opinion would. pionipt hini not to do so. He
was scury the Attorney-General had taken the trouble to con-
tradict what was not imputed to hint. but, however, the facts
of this cese were.:that threihinformations had beets filed against
the defendant—perhaps, &rile- intervening'periods discoveries ..
had been made that eonvinccii the Crown that Johnston was .
but the nominal proprietor, and that they would be enabled to • '
bring home the publication to the real publisher. lie was very
far indeed, front insinuating any charge of harshtetss against
the prosecutors ; - but as the Metter stood, there was certainly a
great hardship on the defendant being several times duped by
the prospect el thie prosecution being übandoneal, and alternate-
ly relievod 'and reloaded with the misery of mind, consequeht
itiqiest3l4.l.--GrettYleie.,inforittation. . fletnaulelt not wedattederstariti ... . te ....- -,
way it was necessary to alter the counts ie each intOrmation, '.
• ,and from a multitude of counts reduce them to two, and then
encrease them and again reduce theme. lie understood it was .
by repeated touches that sculptors produced perfection, and
perhaps Me. Townsend, with his legal chisel, at length reviv.
ed the beauty of the Vents de iliedieis or the Apollo 13dvidere.
He solemnly declared that he never looked in his. Learned
Friend's faceethat he was tot impressed with a consciousness •
of beholding all that is venerable in the law, and sound in opi-
nion, and when he had learned that the last information was
Complete, he was reminded of Lord Cube's celebrated apho-
rism, " blessed be the mending hand." Certainly the artist
win) modelled the present infoonauon, ht:d the merit of pro- • .
ducting what might he mined. an unique in the law--c.' libel
put upon the .record a ithout a- single inuendo; for• he - • ,
dal not mean to consider as inuendoes, that Wellesley
meant Wellesley, Wharton, . Wharton, and Woodstock,
t l'oodstock. His Learned Friend'S practice in this instance,
reminded him of that of some of the commentators who threw - .
a blaze of light upon subjects that were evident to the plainest
understandings ; but when a difficult solution came in • '.t.
'their way, they preserved a judicious silence. Now he would . ~.
tell them the use and purpose of an inuendo—articles and para., -,•-
graphs might be so written, that at the first blush they would. :
strike the readeras libels, and required not the explanation of a
lawyer to convince a man- they were such. But there were
other cases where what was said with apparently . one view •
really had an opposite mconing • and in provinghhat such a pa- • •
ragraph was libellous, it would be necessary -to lhtplein what '• ,r
was the meaning intended to be conveyed; because, although. '
the Jury might very well understand its application, yet with-• • e
Out an inuendo stated there could be no permanent record upon
which a defendant's innocence or guilt could appear. There .
would be no distinct issue upon which the jury were to decide
whether time person named in the information was the person
alluded to In the- paragraph,• And as no description wee so ca-
pable of conveying one's meaning, he would illustrate his posi-
tion by. :an example. The learned Gentleman therm cited the ,
case of ale, ite.beficio against Paine, for the Rights of Man, in
which ninny passages were -complained of, one of which was,
" That the time was not -far distant when England would re-
gret ..
having sent to Hanover, at the expence of some thousands
of pounds, for men who neither understood her laws, language, • .
nor customs, and were not fit :to fill the office of parish con- -
d,::patprnociobearlt
Stables." In the infcrrtiatiors it was inuendoed, that William •
the Third was meant by the word men and that consequently • •
the glorious revolution of 1688 was libelled, and the illustrious .
Howe of Hanover was brought into contempt. There it .
was necessary- to insert upon the record and to state the
inuendo. The moment the inuendo was stated, an. issue e
whs raised, and upon that issue the jury • decided, and
by it the defendant was to. abide. If they took upon them to .
consider of an ambiguous phrase set before them, applied
without an inuendo, by what authority or ground.woulti they
have for deciding upon the innocence or guilt of the ,
accuser', or what permanent . record would the Court ..
have, to which to affix his guilt, or, its he trusted would be in
the present case, what permanent record would they have for -.- •'•
which to refer for his innocence, or what punishment could be ,-•
awarded. to the convicted in- th absence of any recorded offence ? . •
If the Attorney-General is not content to take a paragraph •in .
its obvious sense, but must put • his own construction upon it, -
he is upon the record, and not for the first time acquaint a
defendant with it'at the bar of justice. He .did not know a e•
more happy illustration of what he meant to convey, than by
supposing a splendid house, most perfect in the architectural ar-
rangements of its interior, but wanting -no indispensable-a por-
tion as the stairs, how were they to climb up to the rooins, or
view its beauties ? If they had said Lord NVilarton, thereby
'meaning Lord Wellesley, there would have been n fair
oe rgeune: ;
tion.to try. It was ever an opinion of his, that lawyers
the best-judges of political libels. Their habits
entertaining a very high respect for authority—
(thocirs.referment, - . •
bitions profession)—generally looking forward
efort f
being a judge -
and if any lawyer was peculiarly disqualiti ef
it. Along with his - -
:ie:orinnivt leo. refnvhmeilrsel cntfilltt al
•bediand-s
of a political libel, it was an A ttorney-
natural bias, there are still stronger °nee 'the
6,
cwreassarayatearrei:s:elngui. Ifariomamr,
rverted medium. Let it not
i!i feeling;n.li
jutors through an exaggerated antdons,
clitanldslntitiearteiostn, ;a. :til ide
liise ivdieen,,tsi fii,e:tli with
the'r t etrlui lie i
pr triienscoi
pflleisis
tit'
•
yttorticy-
any thing personal, for bedi i
6e ' la,wyers, to judge of ' •
he for a moment meant
be supposed, that in those
believe,oleetery
poll- -.
t:h rfl o 4 well known
tic-il libels, he should. rem lnd cir-
' . Sir v-might b
Gibbs . e surOttsed by others%in-'
"nistm but no•
:the powers
of eloquence, mall, exceeded him in legal.
discrin.nnatiOn. lie, a
h 'd been ft--
Constitution, than the, pre cut ,
concg ed•at- a time of life',"
etahintei zioelfli!f;ro.aNrtiito'hynaCtOrnir: warmer
more
tairnra(,cliell::;rif:e. , ...
of 't
~
~

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