The Sun.
London, England, 1844-01-26 00:00:00

point of la.v, to take such dechrat'on. The Learned Coun-
sel referred to the case of the King e. White, in support of his
position, that it was necessary to prove the competency of the
officer.
Attorney-Genet al-1f I mistake not, the witness was asked.
why thcr Mr. Coo; e: was not the proper officer to take these
atileas its, and he answered distinctly in the affirmative.
Air. Whiteside—Oh, you are labouring under a sad misap-
prehension. No such question w.is ske:i him at all.
Witness—Alr. Cooper is the props r officer to take in decla-
rations.
Mr. Whiteside—Now, how do you know that, Sir ?-1 never
saw his commission ; but I have no doubt of the fact, for I have
been acting under him for several years.
Alr. Whiteside—ln what capacity P—As registrar of news-
papers. I presume that Mr. Cooper has a commission, but
never saw it.

Mr. WEteside—My Lords, it is absolutely incumbent on
tliem to adduce proper evidence to prove the authority of Ali.
Cooper to take the declarations.
Attorney• General—l do not take the &me legal view of
this point as my Learned Friend ; but Mr. Cooper is in Court,
and, for Mr. N'hiteside's gratification, we will -4Ye him exa-
mined.
Jonathan Sis•on Cooper sworn and examined by Mr. Smyly
—.l am comptroller and accountant-general in the Stamp de-
partment. I have held my office for twenty years. It is one
of the ditties of my office to take newspaper declarations. The
declaration now handed MC was made by Charles Gavin Duffy
and was sworn before me on the 18th of Nov., 1842. Saw it
signed by Mr. Duffy. The declaration now handed to me is that
of the Freeman's journal, and was signed by Dr. Gray, Dr.
Atkit.son, and Edward Duffy, on the Bth of Feb., 1841. Mr.
Barr, ft's declaration was signed in my presence on the Bth o
Dec., 1837.

Cross examined by Mr. Whiteside—l have a commission,
but ;t is not here ; can't say that 1 know Mr. Duffy.
Ah ! why did you not tell me that before ? How thee can
you swear to his handwriting ?-1 know that the party whose
signature is affixed to that declaration signed it before me ; he
was present %Ihen he signed it.—(Laughter.)
1 ant obliged to you, for that information, Sir. You don't
know Mr. Duffy ?—No, Sir.
bank you, Sir, that will do.—(Laughter.) Do you read
the Helical debates in the Evening Maitl—Sumetimes, per-
laps, 1 do, but very seldom.
Do you read the Nation, or the Freeman's Journal ?—No,
he only paper I read is Saunders's, in the morning.

Ila !'yOupatronise frigid Saunders, do you ?—(Laughter`.
—Sometimes I do. -
The Repeal debates appeared in that paper as in every other
paper, and yet you s(c they have selected some journals fora
conspiracy..

i\fr. Whiteside submitted that there was no particular evi-
dence of the publication, and in criminal cases the rules of evi-
dence should be strictly observed. The signature should be
proved by some one. who knew Mr. Duffy.
The Attorney•General—The newspaper was published in
Dublin under the terms of the Act of Parliament, and there
is a heavy penalty imposed on any person publishing a news-
paper, without lodging the proper certificate, that certified
his bail, produced from the Stamp-office, t:ic place
where it ought to be. Under these circumstances, the
question for the consideration of the Court was—whether
the certificate signed by this gentleman in the presence of
the proper officer, and who represented himself as Charles
Gavin Duffy, and by whom the paper was since regnlarly
published, was trot primajiwie evidence • and some of the wit-
nesses for the Crow.) proved that Mr. Duffy, as editor and pro-
prietor of that paper, attended at the meetings. The Attorney-
General then read the Sth section of the Newspaper Act, 6th
arid ith William the Fourth, and submitted that, under its
terms, the evidence offered was admissible.

Judge Perrin—Can't you prove the handwriting and get rid
of the argument.
Chief Justice—The rule of law is the same in civil and cri-
minal cases.

the
ir. declaration.‘ vlites
iN e_My
Judge Perrin—Sure Mr. Cooper said that Mr. Duffy signed
Lords, the first newspaper published by
the proprietor of the Nation is dated the Bth of October, and
the de,niment Mr. Cooper proved is dated the 18th of Novem-
ber, so that it cannot be the right document.
Mr. Brewster cited the case of Mayne v. Fletcher, in
9th Barnewall and Cresswell, page 38:2, and contended that, in-
asmuch as the title of the newspaper corresponded wi.h that set
forth in the declaration produced out of the custody of the
proper officer, it was evidence of its publication by the party
charged. The paper was entitled " The Nation, published
every Saturday, at No. 12, Trinity-street, where all commu-
nications were to be addressed," and the matters set out in the
declaration corresponded with that, and he now submitted, on
the authority of the case quoted, that the Crown were not
bound to go farther.
Mr. Whiteside—That is a different view to that taken by the
Attorney-General and Mr. Smyly.
To the witness—Hand me the first copy of the Nation
newspaper.
Mr. Bret ster—No question can arise except as to the paper
we offer in evidence.

Judge Crampton—Does not this plainly appear, that one
Charles Gavin Duffy is the proprietor, editor, and printer of
this newspaper called the Nation, and the only difficulty that
suggests itself is the identification of the particular individual,
as there may be two or three Charles Gavin Duffys. We have
evidence on our notes that the traverser here is the editor of the
Nation.

Mr. Whiteside—Your Lordship will excuse me for saying
that there is no legal evidence yet to that effect.
Judge Crampton—That is not exactly what I have, but that
the traverser is editor of a newspaper, and was recognised as
such at meetings of the Association.
Mr. Whiteside—With the greatest respect I think your
Lordship is confounding two distinct things.
Mr. Brewster cited another case in which Mr. Justice Bay-
ley delivered a judgment in England, on which they also relied
in support of their argument.
Judge Crampton—Here is the evidence 1 alluded to. In
the evidence of a witness named John Jackson, he says that
Mr. Duffy of the Nalion attended at a meeting and handed in
so aid

Mr. Whiteside-1 thought your Lordship had struck out
his evidence from your notes altogether. That's the man from
Kiltush, who reported after a manner, or took them from the
notes of whoever happened to be next him.
Chief Justice—\‘ hat do you say to Mr. Brewster's case?
Mr. Whiteside—Why, that puts it better for the Crown
than it was put originally ; but I think they must give some
evidence to identify the person on trial with the person who
signed the declaration. The slightest evidence in a legal form
to identify those parties will make out their case, but without
it I rely on my objection.
Air. Tomb called their Lordships' attention to the Bth
section of the Newspaper Act, tilt and 7th William the Fourth,
which enacted that every such copy so produced and eertitied,
is to have the same effect, fur the purposes of evidence, against
every such person named as aforesaid, to &l intents and pur-
poses whatever, as if the original declaration had been produced
evidence, and then proved to have been duly signed by the
persons appearing by such copy to have signed it.
Mr. Bennett—lie is described in the indictment as Mr.
Duffy, of Rathmines, and the description in the declaration is
the same.

31r. Whiteside—l adroit all that ; but suppose the declara,
tion was produced, you must give some evidence of identity.
The cases in England are express upon that point.
Mr. Brewster said, that in the case of the King against
Ilutton, in the State Trials, page 307, the Court ruled that they
were only required to produce the declaration.
Mr. Whiteside could riot see what that case decided.

Mr. Justice Crampton—Suppose there were two persons of
the same name on trial on the sane charge, and evidence
exactly like the present was brought forward, which of the two
is the person that is conclusively bound by the Act of Parlia-
ment—which of the two is the evidence against?
Solicitor-General—Against either.

Mr. Justice Crampton—lf it be evidence against either, you
might have the two men convicted on the two indictments,
upon the same paper, of which it was alleged only one was the
proprietor. In my opinion very slight evidence, in addition
to the statutable evidence, is required. For my own part, I
have no difficulty in point of fact, fur I find on my notes, in the
first instance, Mr. Duffy described by a witness, who was very
fully and very ably cross-examined, as being the editor of the
Nation. I think that Mr. Whiteside is right on the ground
he takes—that something in addition to the statutable evidence
is required.
Attorney-General—The Court is not to infer that a person
has been carr3ing on the Nation as Charles Gavin Duffy, the
person being actually another person.
Mr. Justice Perrin—The question is, whether this is that
Charles Gavin Duffy. It is not denied that some Charles
Gavin Duffy is publishing the Nation, but the question is
whether the traverser here is he.
Mr. Justice Cramptun—l think you will find that Jackson,
in his evidence, said " Mr. Duffy of the Nation."
Mr. Whiteside—We understood that to be proof that Mr.
Duffy was a member of the Association, and nothing more.
Mr. Justice Crampton thought that was a scintilla of evi-
dence that he was editor of the Nation.
Nlr. O'llagan said he would suppose that there were two
Mr. Duffys at the bar, and, then, should it not be proved
which of them was the proprietor ? Mr. Jackson, the reporter,.
had not stated that Mr. Duffy was the proprietor of the Natiol„,,
but that a Mr. Duffy had handed in money. He would not
say that the traverser was not identified, but he was not iden-
tified as having signed the certificate. If two Duffys were at
the bar, clearly one should be identified ; and that applied
equally in this case, where the witness had not identified -Duffy
as the proprietor.
The Chief Justice said lie was nut satisfied that the Crown

had given sufficient evidence of identity in the case. At that
stage the evidence was imperfect.
Mr. Bennett said he thought the Act of Parliament was
sufficiently plain to render discussion unnecessary.
The Chief Justice said the point did not coast within the
meaning of the Act. In the case before the Court proof was
required that Mr. Duffy was the proprietor. The Act required
that he and his publisher sign a declaration. They had signed
it, and, if nothing more was required by the Act, that declara-
tion would be evidence against any person signing it as pro-
prietor or publisher. That was a document by which the
party was bound. But, to prevent any difficulty, the
6th section contained another provision—enabling evi-
dence to be given against the proprietor or pub-
lisher in a summary way ; and that evidence was the certi-
ficate signed by the proper officer of the Stamp-office, and if
he had been there to give evidence in place of Mr. Cooper, all
might be right. The Act provided, that upon producing a copy
of that document, certified under the hand of one of the Com-

missioners, and upon proof of its being signed in his hand.
writing, it should be received in evidence against any person
named in the certificate. Oh (continued the Chief Justice),
on reading the Act I am now of opinion that the statutable.
proof offered is sufficient.
The Attorney-General said he could give other proof aXprts,,
prietorship, but he would not, except the Court decided the
point against him.
Mr. Justice Perrin said that the declaration o! the Attorney.
General was rather inconsistent w►th the, course he had pre-
viously pursued. He had given proof of the handwriting of
Mr. Barrett, and he had done so of Mr. Duffy's handwrittutf
too, by Mr. Cooper, until Mr. Cooper failed upon crosS.exa-
mination.

The Solicitor-General said, if the Court required proof of
the handwriting of Mr. Duffy, the Act of Parliament would
be declared nugatory. The Act guarded against the difficulty
of proving handwriting by compelling the proprietor to go
before the officer ; arid as his person may net be known, and
his writing not capable of proof, the policy of the Ad only
requires—
Mr. Whiteside—The title of the Act of Parliament is wrong,
Mr. Justice Crampton._Mr. Whiteside, surely you are not
going to amend the title?
Air. Whiteside—Oh, yes. The Act ought to be entitled
thus:—" Whereas the Crown ought to be able to prosecute
any person in the community, and whereas the Crown cannot
always do so if proof of identity be required ; be it enacted
that no such proof shall be required."
Mr. Justice Crampton said he had some difficulty in coming
to the same conclusion as the Lord Chief Justice; but he ab-
stained from pressing his own opinion,. because hotorco.oorp
tiered there was abundant prima facie of the PrteePrrieprovtd
Lein.. in 31r. Duffy. Mr. Jackson, the rterorwas,
present,
Ira hade' attended a meeting at which Mr. Duny
he described
and at which he handed in
nmortliata was net evidence
him as the proprietor of the
fourknow meetings, and calls him the
in tact, as present at three or
tinsel for the tra-
f ►ire Nation all through.
'was. He describes him,
proprietor of p
ro. lr
Justicer iet
oo r shtri
versers had not cross-examined.
be d d not
'\rahtsiowlio;on that point.
he was not satisfied with the proof of-
fered. The
spirit of the Act was certainly to remove the diffi-
culties of roof—formerly it was necessary to prove publication
Perrin said