The Sun.
London, England, 1820-11-17 00:00:00

I'M,: CASE OF Silt FRANCIS BURDETT.

Mr. DENMAN said, he was now to support his
Learned Friend's (Mr. Scarlett's) argument, to
have the rule granted in this case made absolute.
It had been maintained on the other side, that the
milting of a libel alone was an offence, indepen-
dent of publication.

, The LORD eill JIiSTICE.—" We are not
in a case of that kind; here has been a publi-

cation."

Mr. DENMAN said there had been a publica-
tion, but there was no evidence in what way that
publication took place. In the case of the King
v. Bere, Lord Holt, in giving judgment, had re-
fled upon no antecedent authority, but on the con-
trary, had been under the necessity of getting rid
of all former authorities ; authorities, to say the
least of them, equal-to his own. lie had said that
Lord Coke's decision in Lamb's case was not law,
unless taken with the qualification Moore's
Reports. The doctrine that a libel written but
not published, was a crimei had no countenance
from the whole calendar of crimes as known to
the law of England, except in the single case of
forgery. But in that case the act of forgery it
was which did the wrong ; it was by that act a
man was made liable, and the publication there-
fore made no difference in the offence. If the
keeping of libels in a man's.possession were to be
accounted criminal, all those who had the
works of Gibbon in their possession were guilty,
for undoubtedly there were many of his chapters
which, if brought before a'. Jury, might be
held libellous. But the having and keeping
libels was no crime by the law of England, it was
the act of publication ; the making of other
minds cognizant to their contents which consti-
tuted the offence. The issuing of general warrants

was once held to be part of the law of England,
and had some analogy to the present point. The
doctrine of tnaliim.r, the writing of libels- a critne
had reference to the power of searching for and
seizing them in. the maker's own . possession.
Lord Coke having got rid of the case of the King
against Lamb, had fortified himself with prece-
dents from the Star Chamber, of persons who
-bad -been punished for writing libels only; and
le said, that by consequence such offences were
now punishable by indictment. But it appeared
in Hubbard, that in the two cases relied upon,
publication did take plate ; and instead of being
cases of writing alone, were cases of writing .and
publishing, and supported his argument. The At-
torney-General had said, that he did not want to
found himself on the Ronan law ; but in fact,
there was no English law for it whatever :• and it
was remarkable that Lord Chief J ustice. Holt,
who bad laid down &tat alarming proposition, had
nothing but Roman law to shew for it, and. that
equivocal, and when examined found to be against
instead of favourable teihis Lordship's argument.
The two Star Chamber cases to which he •-had
alluded in Hubbard, were Llewellen's case, and
Blake against Hatton; they were both cases of
letters written and sent. In the time of King
.Charles H. Chief Justice Scroggs stated the case
of the King v Harrris, as the opinion of all the
Judges, that persons who wrote, or printed, or
sold books, scandalous to the Government, alight
be prosecuted, and the books seized. Such was
the doctrine of the twelve Judges in the time of
Charles I I.

The LORD CHIEF JUSTICE—" The early part
of Lord Molt's life was spent in impugning such
doctrines." -

Mr. DENMAN—" A melancholy example of the
instability of human virtue."

The LORD CHIEF JUSTICE—" Bath before and
afte,r his elevation to the Bench, his opinions
were in favour of the liberty of the subject.
'that is the character which Lord Holt has al-
ways borne."

Mr. DENMAN said it must be a painful duty for
any Barrister to speak disparagingly of Lord
Holt, but it was a consequence .of his living
in such times, when even strong and generous
minds frequently acted afterwards in some de-
gree upon the principles which they had be-
fore opposed.
The LOUD CHIEF JUSTICE said, he did not
mean to state that Lord liolt's doctrine was not
fit to be opposed.
Mr. DENmAN—In the case of the King against
Carr. Sir George Jefferies, the Recorder, had
stated that the Judges having met, had given it
as their opinion that no person could expose to
knowledge any thing concerning the af-
fairs of the public without license from the King.
That was in 1660, and in fact, at. the Restora-
tion a licenser was appointed, and it was under
such a dispensation that Lord Holt's early life
was passed. It was not till King William's time
that the law respecting the licensing was stitiered
to expire. The right to seize papers, and to
enter houses and search for them, continued to
be considered as law till 1767, when Lord Cam-

'den pronounced against it. On whim occasion,
he reviewed the w hole of the case of- the King
against here. The whole of that case undoubt-
edly went on the ground that there was a right
to search for and seize papers even in the desk
of the party. His Learned Friend, the Attor-
ney-General, had carried his argument to the ex-
tent that writing of a libel alone, though kept
locked up in a desk, was punishable, which was
entirely conformable to the right of seqrching for
and seiziug'pa4Jers. The Learned Counsel then
quoted Mr. starkey's book, published. in 1813,
to shew that the authority of the case of the King
against Bere was not now questioned for the first
time. Lord Camden said, on the question of the
general warrants, that, if the doctrine of that case
were true, when a seditious libel had beep pu-
blished a few weeks, the whole kingdom would
have become guilty, and it would be a difficUlt
matter amongsf so. many millions of finding one
ignocent Juryman. Mr. Denman then refeired
to the 4th volume of Blackstone, page 150, the
whole of which proceeded on the supposition that
a publication had taken place.
The LORD CHIEF. usncE.—" In the same
page he states, that the punishment for making,
printingi or publishing a libel, was a fine."
Mr. DENMAN said, that supposing it establish-
ed that writing 'alone was no offence, he must
submit that that was the only act shewn to have
been done in the county of Leicester. BUt if
the Court should be ,of opinion that writing
alone was an offence, then he claimed A new
trial on that ground, because-the Learned Judge
at the trial was of opinion that writing alone was
no offence.

Mr. Justice BEST said, that his opinion wai,
that the mere act of writing memoranda of libel-
lous matter was no crime, but if written with in
tent to publish, it was one step towards crime,
and was a misdemeanor.
Mr. DENMAN said, he did 'tot recollect his
Lordship's stating that at the Assizes ; but upon
general principles, he contended, that making a
libel was no clime at all, so long as it remained
in the maker's possession. If such were the lay►
it would lead to all those inconveniences which
were objected to general, warrants, now hap-
pily got rid of. The consequences would be
an encouragement to, spies, and an incitement to
breaches of confidence and treachery in servants.
It would, indeed, lead to consequences 60 mon-
strous, that no English Court of Justice could for
a moment entertain the doctrine. Cases of con-
spiracy had been referred to, whe,re the offence
had.been- committed in different counties. In the
case of the King v. Brisac, one overt act was done
in Middlesex, and that was sufficient to bring
the case within the jurisdiction of that county.--
It was one complete act there committed. But the
two acts of writing and publishing were distinct
and separate acts, and there was no evidence
whatever of Sir Francis Burdett having done any
one act in Leicestershire besides writing. Cases
of nuisance had also been referred to, and the
case of a windmill had been supposed situated in
one county producing an act of nuisance in ano-
ther. But that act was one and entire; and had
no analogy with the present case, where the acts
were entirely different. The third point made
was, that evidence of publication had been allow-
ed to go to the Jury ; because the letter had been
received open in London, it was to be presumed
that it was open in Leicestershire, which would
be a publication in Leicestershire. That was a
presumption which, in a criminal case, should
never be admitted. But he denied that, strictly
speaking, there was any evidence whatever of the
letter having been delivered open in the county
of Leicester. It was contrary to common prac-
tice and experience that it should have been so,
and the evidence which was given on the trial, in
his opinion, put it out of all doubt. It was ad-
mitted at the time that a sealed letter was no pub-
lication.
Mr. Justice BEST denied that had been admit-
te'd by him. The only evidence was of an open
letter.

Mr. DENMAN said, he should be sorry to put
his memory i❑ competition with his Lordships's.
Mr. Justice BEST said, he had a distinct recol-
lection that he had referred to the case of the
King v. Watson,which was that of a sealed letter,
and how he could have referred to that if he had
been considering the case of an open letter, he
could not imagine.
Mr. DENMAN proceeded to observe on the
case of the King v. Watson.

Mr. Justice ilAyi.Ey--" Did it appear what
day the letter reached Brooks ?"
Mr. DFNINIAN--. " Ile was not certain if he re-
ceivedit on the 23d or 24th of August."

Mr. Justice BAYLEY—" Sir Francis Burdett
was seen in Leicestershire on the (22d ?"

Mr. DENMAN said he was so ; that there was
plenty of time for him to have carried the letter
himself. It ought to have been shown that he
wat never out of the County.
Mr. Justice BEST---" The letter was publfished
in The British Press on the 25th► of August, so
that it must have arrived in town on the 24th."

Mr. DENMAN contended; that the written di-
rection- as to the publication on the envelope,
was a strong proof that_the letter was not deli-
vered to Mr. Bickerstaff in the county of Lei-
cester. This, he said, would be the first in-
stance of a party convicted on two presumptions,
which had not been shewn to be more probable
than twenty other presumptions which might be
named. Ilis Learned Friends had found no
authority whatever, though so long a period had
been employed in the search.
The Lotto CJIIEF JUSTICE said, that in 2d
Campbell, page 505, where the charge was for
composing, writing, and sending, the evidence of
sending was putting in the post in Middlesex,
and Lord Ellenborough there said that was proof
of publication.
Mr. DES: MAN referred to the case of the King
against Watson, where the same Learned Judge
held, that the post-mark was no evidence of
publication, as it might be forged ; but,. in that
case, his Lordship held that the publication
Was where the letter was received, which was in
Middlesex.

Mr. Justice BEST said, he had not relied upon
that case.

Mr. llaxmAN said, his argument was, that Sir
Francis Burdett should leave been proved to have
parted with the letter in Leicestershire; but on
that point there was no evidence at all. He
again observed on the absence of all authority,
and argued, that if it had been law his Learned
Friends on the other side, with all their inge-
nuity and research, must have found one. He
hoped he had said enough to satisfy their Lord-
ships that writing alone was no offence, and that
it was quite impossible to assimilate the present
to those cases where two distinct acts were ne-
cessary to make up one crime; and also, that the
law required that the criminal act done should
be within the jurisdiction of the place, and be in-
quired into where it occurred. At least he hoped
it would appear that there was enough of doubt
in this extraordinary and long-discussed case, to
make it necessary to have a more satisfactory trial.
Mr. PHILLIPS followed ; he said that it was
not his intention to go through the argument
again, as it related to the civil law. It was
'necessary to refer to it, because Lord Holt
had said, that the civil law was transferred
to the law of England, and it therefore be-
came necessary to see if there were no mis-
take in what was stated to be the civil law. He
cited to their Lordships the original text of Justi-
nian, and referred them to the Commentaries of
Oppius and of neeber to shew that the rule of the
civil law was, that the writer of a libel would be
liable after publication. In the case of the seven
Bishops the writing was proved by the acknowledg-
ment of the Prelates, but Mr. Justice Powell ob-
served on that occasion, that the writing in Mid-
dlesex was not proved, from which his Learned
Friends on the other side inferred that writing
alone without publishing was sufficient. But
they forgot that the charge against the Bishops
was conspiracy, and the proving of one overt act
of conspiracy would be correct with reference to
the case before the Court, but it had no refer-
ence whatever to the present. The argument of
hir I.earned Friends, that as at common law the
writing a forged note without publication was a
crime, SQ the writing of a libel without publica-
tion was a crime also, was nothing more than an
argument from analogy, and if carried to its ut-
most length would apply to every case where
the means were prepared for a crime, but never
carried into execution. So that sharpening a
dagger with intent to strike, collecting combus-
tibles with intent to burn ' a house, or mixing
poison with intent to administer it, would all be
considered as crimes; whereas he would contend
that there must be some overt act to demon-
strate the legal guilt. The moral guilt might
consist in intention, but a criminal intent is not
under the cognizance of human laws till
some act has been done to carry it into exe-
cutkn. The Learned Counsel, on the authority
of a treatise whose name we could not catch,
contended that the laws of Edward I. and
the whole of the Saxon laws proceeded on the
supposition that the libel must be published. As
to the venue, he contended that in civil cases the
rule had been relaxed, but in criminal proceed-
ings it had never been, touched. In support of
this proposition he cited Hale and Iluzzkins.
He contended that the presumption that Mr.
Bickerstaff had been for two or three days in the
county of Middlesex before he received the let-
ter, was as reasonable and probable as that Sir
F. Burdett should be presumed to have been in
Leicestershire on the 23d and 24th August, be-
cause he was seen there on the 22d August. But,
at, all events, it appeared clearly that publica-
tion did first take place in the county of Middle-
sex, and therefore the venue should have been
laid in that county. The Learned Counsel, then
took a review of the Learned Judge's charge
to the Jury, and objected, that he had stated that
" the letter might have been seen and read by
Bickerstaff in Leicestershire," whereas there was
not a tittle of evidence to shew that Bickerstaff
was in Leicestershire at -all at the time. The
Learned Judge also stated, that it lay with the
defendant to prove that the letter was not put.in
the post in Leicestershire, when in the nature of
things that *as impossible, supposing, what was
extremely probable, he had put it in 'the post
himself. Ile had also stated, that the defendant
" delivered it out for publication at Kirby ;" but
there was no proof at all of that. These obser-
vations must, he contended, have made an undue
impression on the minds of the Jury ; and as in a
case like the present it was desirable that the
administration of justice should not only be pure,
but perfectly unsuspected, he thought he was war-
ranted-in asking of their Lordships that the rule
for a new trial should be made absolute.
Mr. BLACKBURN followed on the same side,
and cited- several authorities in support of the
propositions laid down by his Learned Col-
leagues who preceded him.----At half past three,

The LORD CHIEF JUSTICE said, as Mr. Jus-
tice Holroyd was obliged to leave, they would
postpone hearing the remainder of the argument
to another day.

The ATTORNEY-GENERAL inquired if the ar-
gument • could he resumed to-morrow) but on
account of the great arrear in the special paper the
Court decided that it 'could not then be gone into.

THE KING V. WOOD, ROBERTS, AND DAY.

The defendants, who had been convicted at
the last Chehrisford Assizes of a conspiracy to
extort money from J. Roberts, senior, by falsely
charging his son, J. Roberts, jun., with an unna-
tural crime, were brought up for judgment.
The LORD CHIEF-JUSTICE having read over
his notes. of the trial,
Mr. GURNEY, for the Crown, addressed their
Lordships. He commented on the aggravated
nature of the offence committed by the prisoners,
characterizing it as a malignant conspiracy con-
ducted with the greatest deliberation.
The Judges consulted together for a few
minutes, after which
Mr. Justice BAYLEY sentenced Wood to 20
months' imprisonment in the Chelmsford House
of Correction ; and Roberts and
,Day severally
to 9 months' imprisonment in the same House of
Correction.