The Sun.
London, England, 1820-11-28 00:00:00

LAW INTELLIGENCE.

COURT OF KING'S BENCH, Nov 27.
TUE KlN'q. J. Silt EItANCIS BURDETT, BART.
The,Court
,pronotteced judyneet this naorning
-upon the motion made in this iltiportant case for
a lie* trial. As there was 'a diiision in -the Court

Ipciti• the question, the Judges delivered their
Each of their.Lordshiys was
most erudite.and elaborate in the• exposition of

4 reasons for the opinion he pronounced. The
curse thus adopted, necessarily occupied a
sitierahle portion of the day:----nearly four hours.
the Lord Chief Justice, Mr: Justice Holroyd,
itn`'d Justice:Best were of-the same opinion,
liTed Mr. Justice Bayley was dissentient.
,Mr.
44itiCe Best being the junior of the Puisne
i.tadtles pronouned his opinion first, and he was
fo.llOAred by his' Learned Brethren in succession,
a.c'cgriling to Seniority, , and the Chief Justice
sl-;,-)1,6 last. The Chief• Justice and Mr. Justice

tkoiroyd delivered their• respective opinions in
1:,-41iting-;.. and Mr. Justice Batley and Mr. Jus-

tie _ Best 'delivered • their's orally.

The latter

vls eloquent, declamatory, and forcible.
;From the very great length into which their
rdships entered upon the subject, it is impos-
sible to,give in, detail each opinion. The reasons
twigned by the majority of the Court for refus-
themew trial, were concurrent and similar in

eery respect. It will therefore be necessary
only to give a succinct recital of the principal
points decided, and the grounds upon which they

ere foiinded.

-There. were. four leading objections. to.
,the
verdict a's- recorded. First—That there was
bo .rvldence that the alleg,ed libel was pub-
ihhed Leicestershire.. Second—That the
publication having taken place: in Middlesex,
v 1 ere the crime. of libel was completed,
the venue ought to be laid_ there, for in misde-

meanours theindictment can only be tried where
the offence is complete, and not ,where it haS
commenced. Third—That evidence was impro-
perly rejected, .Would have gone to prove
the truth of the facts, upon which the libel, which

.
was a mere commentary. upon, those facts, was
fuutided ; and fourth—That the charge to ,the
Jury, on the, part of the Learned Judge, was
partial and..unjtp.l. As to the',question, whether
the mere writing of a libel, without publication,
was an offence; the " Court declined to give any
,oplitionolie question not being necessarily raised
in this case, for there was here. in fact, a4u6li-
cation. 'Tie Learned Judges who were of opi-
Itiort that no new trial ought to be.,„granted,- ad=
dyessed thernsov,es: entirely to the four pointz!

above-mentioned, As to the first, the j- ruled that
there. was sufficient evidence to go to the Jury of
publication, and that the Jury had drawn a just
and proper conclusion from the facts given. in
evidence.. The objection taken in argument
against the presumption of guilt 'without 'facts
to• support -it, did not apply to this case, be-.
cause there were facts gi'Ven in evidence from
which a reasonable. presumption that publica-
tiOn in
.Leicestershire had taken place must be
drawn. Publication, in its legal sense, did not
necessarily import a corrumlnication of the con-
tents of a written paper to another. The mani-
festation. of its contents was snfficient to satisfy
the legal sense of the
.word publication., in this-
-sense wai to, be taken the publication of a or
an award ; in neither of which cases was it ever
supposed that the: testator or the arbitrator‘com-
municated the contents of his testament or award
at the time:of publication. Both the Civil Law
and the Law or England. were concurrent in this
sense of the word. The. facts of this case corn-
irlefely Pore out this definition, even supposing
the popular meaning of, the word publication aid
not apply to-it. But in this• latter sense the case
Was made out, for it was quite evident that the
letter containing the libel must have been deli-
%ered in the county of Leicester, unsealed, to
Mr. Bickersteth, by whom it was transmitted. to
Mr. Brooks. Supposing, .however, that. the let-
tcr was .sealed, still the putting it ,into( the post-
admitting that to have been the -fact,
would of itself-be a publication as far as the de-
fendant was concerned, inasmuch as by that act
it was .no longer under his controul—he had no
peniteirtkr to retire ' to— the envenomed
arrOw was shot, all the mischief intended was
effected. These. were the facts upod-Which
the, .presumption of guilt was founded.. This
was the pritha facie evidence of criminality,
And the cares probandf lay upon'the defendant to
rebut the necessary inference arising from-it, as
it was in his, power to have done, by calling Mr..
.Bickersteth.(of whom the CroWn knew nothing,)
to shew An what manner•and under what circum-
,Ntanceg the letter' came into his possession.; It
,was- quite absurd to say, that guilt could. not be
• preinmed, when once. the facts from which. guilt
.could be presumed were.made oat: True -it was
theta foundation must be laid, by shewing that in
fact a crime was committed before thequestion a rose
upon whom the guilt wasio 'be attached.
was the-principle invariably acted upon from all
tirne, even .in treason', the highest crime known to

thelaw, in murder, !:obbery. and every species of
' felony: If this were trot so, it would be utterly
impossible, in ninety=nine cases out of a hundred,
to bring-home guilt to, the Most atrocious offe.n-
. (refs.,- because such', crimes' were generally com-:
• ,:uatied. in secret,—obvious to no human eye—ma-
nifest.bv no decisive actyand therefore could only
be'discovered 'by circumstances- froth which the
guilt of the party could be presumed., -For-these
reasons the case had been well left to I.he Juryi
.to" dta4-'the cbiiclusion aye or no, whether a pub-.
liCit tion had taken place in Leicestershire. Then,

-se?ond,assinning that puliliCation;in the popular or
• • 'legal sense iifthe word ,hadn tA.takenplace•in'that
wasVie4ndictinent.propt6y laid there?
Thiideventleil'uport the gnestii)n, whether it was,
ecessa'ry• that the wholobf the offence of" writing;
composing, and publishing," must be shewn to
have taken place in that county. Their Lord-
/Akins were cleArly of opinion that these were all
several and separate acts, and the proof of any
one of them having been Committed. in Leicester-
shire, was sufficient to give jurisdiction to -a Jury

of that county over the .Ofrenee., This they rated
to be a sound position law, after much consi-
deration of all the Authorities which had been

cited in, argument, and was the rule applicable to
all cases of misdemeanour, in contradistinction to
that which bad obtained in cases of felony, where

the offence could only be tried in the county,
where it was_ complete and final in its result.
Here it was not disputed that the defendant
wrote the libel in Leicestershire. That fact be-

ing established was sufficient to giVe a jury of
that county cognizance of the whole offence, and
what afterwards took place as incidents and par-
cel of the offence, in pursuance thereof, in an-
other county, might well be inquired of by that
Jury.. Then 'as b: the rejection of evidence to
prove the truth of the facts upon- which the libel
was supposed to be founded, they were clearly
of opinion that such-evidence was utterly inad-
missible. According to the established princi-
ple, founded upon a current of the most unques:.
tionable Authorities, the truth of a libel prose-
cuted criminally, could never be given to purge a
defendant of guilt ; . but in this particular case, the
injustice of admitting such evidence must be appa-
rent to time commonest uuderstanding. For; what
would have been the tendency of such evidence ?
%\ hy, to show that persons,. not upon their trial,
were guilty of the atrocious crimes imputed to, them
in the libel. To suffer this would be the height of

impropriety; and subversive of every principle
Of justice. -But supposing-the evidence tender-
ed, had been admitted, would it have the effect
of negativing-the Malice of the libel in other parts?
Would it have, justified that part of tl libel
which talked of "a reign of terror and of blood ?"
Would it have shewo the veniality of other parts
of the writihg e-qoally
,offensive -Certainly it
would' not, .and therefore the•atimlS'Sion of such
evidence would have -fallen so far short of its ob-
ject, as to' leave the defendant still criminally
liable. Lastly, as to the charge of the Learned
'Judge, it appeared to them that the observations
complained of :were perfectly: jitstiffahle, • and
such as all their Lordships would have made
under the like circumstances. . Indeed, it ap-
peared to them that the case had been left to the
Jury in a manner the most favourable to the de-
fendant. For all these reasons the. Afendant
was clearly ,not entitled to a new trial.
Mr. justice 13,A Y LEY concurred in general with
the rest. of the Court in What had been said, as
to the admissibility of the .evidence rejected, and
as to the charge of the._ Learned Judge-to the
Jury upon the law and the-facts of the case. The
difficulty he felt, and which, from tl*, first to last,
he had not been able to overcome, was, as to
the direction of the• Learned Judge respecting
the publication' of the libel in- the county of
Leicester. This Was a. technical objection be-
yOnd all doubt, not- at all interfering with the
merits pf the case.; but whether a technical ob-
jection or not, it was such an, objection, as upon
the most careful consideration, he was not able
to get over. Ale should be falling from that
which was his duty as a Judge, if he did not
avow that opinion, and give the defendant the
full benefit of it whatever it might .be. It ap-
peared to him that there uas no peinuz facie case
made out, from which the presumption could be
drawn that the libel had been published in any
rational sense, in the county of Leicester. lie
fully admitted the right to presume guilt from
facts Once 'established ; but here there were no
facts proved Which . could justify such presump-
tion. It was the duty of the prosecutors'to have
gone much farther; they, should have culled Mr.
Bickersteth to supply the deficient link in the
chain of evidence, in Order to shew under what
circumstances the libel was delivered to him by
the defendant. WithoUti therefore, consider-
ing the question whether the fact of putting
away a sealed letter, was in law a publica-
tion, he was of opinion - that the .defendant
was entitled. to have lhad the sircumstances left
to the Court ,by the Learned Judge, put into
the shape of a, special verdict, in order that lie
might have the benefit of alwrit of error.. This he
was deprived of,; and on this ground he thought
the case ought to,gobefore anotherjury. But he
was not at present prepared to sayrthat the mere
fact of Putting a sealed letter into the'Post Office
was a publication. This. was at least a doubtful
point, and the cases upon which the position was
founded were Nisi Plias decisions,-and had never
Undergone a solemn review. His Objection to
the verdict, however,' did not stop here. It
appeared to him that pAlishing and writing
was one entire offence, and, consequently that
proof. ,of writing only in Leicestershire, would
not be. sufficient to give a. Jury of that county
cognizance of • the Offence. This was his;bpinion,
after the best consideratiOn. lie could see no
distinction between misdeMeanours and felonies
in the appliCation of this principle, and after his
Lordship had gone through an elaborate examj-
mation Of the cases upon ,this subject, Itee-xpreSs-
ed-himSelf clearly of Opinion that the defendant
was entitled to a new trial. _ ,
The majority of the .Court being therefore
agaiust the application, the
,rule. for anew. trial
was discharged.
The SorAcrrort GENEnAr;theniese, and said,
that the counsel for thes Crown having. dispeiiseil,
with the-attendance of. the,defendant (hiring the
discuSsionof the motion for a new trial, it pro-
bably. wonld not be expected Mat he should be
called tap for. judgment this 'term, not having, had
any notice upon the subject. . •
jus'rtctHrt was so understood.,
and' therefore he cannof be called upon this
" • - •

DlTious
THE W.U.LTAAI GREATJIEAD

The SoLtcprort,,Q..t;NEßAL prayed the judgment
of the-Court upon this defendant, a bookseller of
.COVentry, who :was convicted at the last Aisizes,
for the County. of 11.rarwick, before Mr: JtistiCe:
Best, for publishing a seditious libel, Concerning
the transactions of Manchester in August, 11819.• -
The defendant, who was without Coungel, put
in affidavits, which complained of undue prac-
tices in the Crown Office, as, to tie mode
of 44 picking, packing, or selecting" the Jury by
whom he Ivo tried. lie urged, in mitigation,

the fact that he was not the original publisher of
the libel in question, for that it had been copied
from a pamphlet Published in London. He then
ktddreksedttt,e cgto':itt a ktroug;,boldttd ener -
getic manner, in institicktion of the Purity 1f his.
-sentiments, the integrity of his conduct, and the
.detefmination with which he was disposed to
brave every consequence in the avowal of those
political and constitutional opinions in which he
had beeit reared ; and declaring_ that he should
consider himself guilty of baseness and pusilla-
nimity, if tie deprecated the pity or mercy of the
Court by any hypocritical disavowal of his -senti-
thents.

The SOLICITOR-GENERAL left the case in
the hands of the Court, with this simple de-
claration, that the Officers of the Crown knew
nothing of the pamphlet alluded to by the de-
fendant ; for if they had, they -would have felt it
to be their imperious duty to prosecute. the
author.

The Court, after deliberating for a few mi-
nutes, passed as their judgment upon the defend-
ant, that he should pay a fine to the King of 501.,
be imprisoned in Warwick gaol for two years,
and at the expiration of that time, to enter ;nto
security for his- good behaviour for five years,
himself in 2004, and two sureties in 1001. each.

TILE KING V. EDMONDS.

• -.On the application of the defendant, the judg-
ment in this case, fora libel by default, was post-
poned until next Tenn, the defendant undertak-
ing to give security for his good behaviour in the
mean time.

THE KING, V. 'WOOLER, C.kaTWRIGHT, MADDOX,

AND OTHERS.

In this ..case 'a rule to shew cause why there
should not-be a new trial was obtained by Mr.
Denmau-but it appeared the rule had not been
drawn up, arid' the Court allowed
_argument to
stand over to the first day of next Term.