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

" The Cause for which HAMPDEN fell is the Field, and SYDNEY died en the Beafold!"

LAW IsYTELLIGENCS.

COURT OF KING'S BENCH, Nov. 16.
(Continued from 7'ke &stemmas of yesterday.)

Tilt ZING P. SIR FRANCIS BURDETT, HARI%

Mr. Pamirs having referred to the various cases
shed by Mr. Denman, proceeded to urge their appli-
cation to the present argument. In reference to this
point, he denied that the case of the King r. Beare
was to be regarded as authority.
Mr. Justice BATLEY asked, whether it was the in-
tention of Counsel to maintain that the resale for

libel could only be laid in the county where the pub-
lication took place; and if so, whether, if a person
who wrote a libel in Middlesex and sent it to Francell
for publication, he would or not be liable to
meat in Middlesex for the writing
The Learned Counsel replied to the first question in
the affirmative, and to the latter in the negative. The
point with respect to the purchase of poison in one
county to be administered in another, had, lie cowl
tended, no analogy whatever to the present case, ansl
lie challenged the Solicitor-tiener.il to state the legal
authority upon which he grounded Isis assertion, that
if a windmill, stationed upon the borders of tree
counties, should happen to kill a horse in one county,
it would be indictable as a nuisance in the other
county
Mr. Justice BATLEY referred to the ease in lib.
Ass. IV Flw. 111, pl. IL iu which a presentment was
made in Middlesex of a nuisance npun the river Les,
occasioned by neglect in another count•.
he Learned Counsel maintained, that such a ease
had no relevancy to the present, and cited Milner's
eae, in which it was laid down,
tha. either actions
or indictments fur nuisance should be brought it ithin

the county in which the nuisance Wii; actually
committed.

Mr. Justice BEST observed, that the derision in
Bulmer's case referrell to local 101(.111'1'S.

The Learned Counsel remarked, that the decision iu
Bulmer's case was strengthened by that upon a case
of usury, in the Court of King's Bench, in which
Mr. Justice Ashurst laid it down, that the action
should he brought in the county where the account
was finally settled, and not in that in whirls the In-
terest was usually received, although .Mr. Justice
Buller dtaintained an opposite opinion.

Mr. Justice Banter asked whether, in the case re-
f•rred to, it did not appear that the offence of usury
was committed in the county in which the account wu
finally settled
Mr. Justice BraT stated, that Mr. Justice Ashurst
pronounced the judgment of the Court upon that occa-
sion, and, if he recollected rightly, bo.h Justice Bul-
ler sod Jessica Geese oruessecal is the. opinion epos
which tbatjudgmrat was founded. Mr. Justice Astaire'
on that occasion too observed, that an action would
he in either the county in which the interest was re-
ceived, or in that in which the account was settled.

- - .
Mr. Joriee BATLEY observe(' that it was the gene-

ral practice to bring an action in that county in which
the interest was received; but in the case referred to
by the Learned Counsel, he apineliended that the
charge of usury took place, or could be made out only
in the county in which the account woo settled.
The Learned Counsel said, that altliongh the rule

of law might have been relaxed in civil actions, it
was uniformly observed iu criminal proceedings,
namely, that the proceedings should be instituted in
the county in which the tratvaction referred to took
place. This, indeed, was naturally to he inferred from
the provision of our law, that the Jury should be
brought from the vicinage in which any offence took
place. This principle was so tenaciously maintained
as law in other times, that Lord Coke had said, if a
man received a blow in one county which produced
his death in another, his assailant could nut be in-
dicted in either count•, because the •Jury would not
be entitled to inquire into any fact t:iat took place in
another county.
Mr. Justice BATLEY asked, whether there was net a
distinction in the rule between felony and misde-
meanour ?

Mr. in‘tice BIT observed, that a-cording to long
eltablisl►ed practice the indictment, in !quell a rase as
that referred to by the Learned Counsel, would be
brought in the county in which the deatb•tonk place ;
and the blow, whicl► was but a misdemeanour in the
county where it took place, would naturally merge in
the felony.

Mr.Jostip BATLEY said, that he recollerted a ease
in which a man was indicted for not rep4iring in one
county, as he was bound to do by the terms upon
which he held Vie land in another county, and there
the Jury did inquire into the facts which occurred in
the other county.
• Mr. Justice tloutyvn observed, that npon a trial
for High Treason, the Jury, upon proof of an overt
act in the county to which they belonged, were an-
thorised to inquire into overt acts done in other
coutitiea.
Mr. Justice lizsv.—Suppose a hill to have been
forged in one couuty and uttere,l is anot!tN-, would
not the Jury appointed to try the case of tittering be
entitled to inquire into the fart of the forgery ?
Mr. Primes resumed, and after admitting, as the
Learned Judge observed, that the utistlemeanoor
merged in the felony in the case referred to, stated,
that the law was unquestionably as he hail quoted
from Lord Coke, previous to the enactment of Statute
providing for the prosecution of any person giving a
blow in one county, which blow might prove fatal in
another. This the Learned Gentleman shewed by
reading a passage from 3 Inst. p. 48. But the Sta-
tute altering this practice in a particular ease, having
no application to a else of the nature of that before
the Court, heinaintained tb it the rule of law, as laid
down by Lord Coke, prev•nted the Jury from in-
quiring into any acts not do w by Si: Francis Barden
in Leicestenliirr.

Mr. Justice BATLIV.—Then reverse the case. If'
your client had been tried in Middlesex, the Jury, ac-
cording to your view, could not have inquired into
the meeting in Leicestershire.
Mr. Justice Bast.—lf he had been tried in Middle
acre he must have been acquitted, because there wen
no proof of any act done by him in that county.
The Learned Counsel urged the judgment upon the
ease of the Seven Bishops as decisive upon the present
question. He also referred to the precedent in Judge
Johnson's ease, as that which should have regulated
,the course of the prosecutors in this instance. That
Judge was tried in England for an essay written in
Ireland. It was incontestibly true that the Coort in
Huhlin could not, legally take cognisance of what
was published here ; and why ? because the pnhlica-
lion was the gravamen of the offence. But the same
rale that prevailed betweet. England and Ireland in
this ease applied also to separate counties, because
they had separate Jurisdictions, as well as seperate
kingdoms. Among other authoritiet, Mr. Serjeant
4lawlsius laid it down that an offence could only be
tried in that country where the act was completed. It
was stated by Ilawkins and Comyn, that upon any
case in which a severe punishment was likely to fol-
low, such as to affect the life or limb of a subject, the
rule which lie had quoted from Lord Coke most be
strictly observed, and it was known that sedition or
libelling was that description of case, as appeared from
the practice of cutting off ears and splitting noses in
the reign of Charles the First. According to this
rule then he maintained that his client should not
have been tried in Leicestershire, where there was no
proof whatever that the alleged libel was ever pub-
lished or seen. The Learned Counsel for the Crown
hail said, that the mere delivery of the letter of Sir
F. Burdett to any servant, to he conveyed to the post-
office, or his own putting in of that letter into the
post-office, amounted to a tithliration according to
law, and those. Learned Gentlemen had put a ease,
whether if a man wrote :I letter in Yorkshire and sent
it abroad, he could he tried any where in this king-
dom but in Yorkshire? According to the language
of the Solicitor-General he appeared to think, that the
point urged in a former instance by his Learned Col-
leagues in this case, as to the meaning ut publicatitin, ,
had been abandoned. But the Learned Gentleman
was mistaken ; for, un the contrary, he still maintained
with his colleagues, that according to the definition of
the publication of a libel by Lord Coke, namely, trio•
ditin erd iofirmiane, that isublication meant where the
contents of the libel were made known.
Mr. Justice BALLET—Do you mean that the publi-
iation means only the communication of the contents?
The Learned Counsel replied in the affirmative, and
repeated his assertion, that there was nu proof what-
ever of the publication of the alletlg,ed libel in Leices-
tershire. All that appeared on the trial was, that
Mr. Brooks received front Mr. Itickersteth the paper
alluded to; and that Mr. Brooks, finding it to be an
Address, thought proper to publish it ; yet, in con-
sequence of proof that Sir F. Burdett was seen in
Leicestershire on the 22d of Aug. upon which day the
paper was dated, as well as upon the day following, a
presumption was raised that the honourable Baronet
wrote this paper in that county.
Mr. Justice BAYLET•-••••1111 what part of Leicester-
shire is the toll-gate where Sir F. Burdett was so
seen ?
, Mr. DENMAN—CIose to the border of the county,
within ten miles of Itittlandshire.
Mr. Pilules maintained, that the natural presump-
tion was, that Mr. Bickersteth first saw this paper in
Middlesex, and also that he hail been two or three
days at least in Middlesex before he delivered it to
Brooks, by whom it was published. Certainly either
or both these presumptions were quite as fair and ra-
tional as that Sir F. Burdett put
,the paper into the
post-office in Leicestershire, merely because he was
seen ten miles from an adjoining county, into some
post-office in which this letter might as probably have
been pot. This letter was dektered open to Brooks
by Bickersteth, and the first knon ledge which the
Court had of it was in Middlesex.
Mr. Justice Besy.—lt did not appear at the trial
where Bickersteth resided, but merely that he deli-
vered this paper to Brooks iu Middlesex.
Mr. Justice RATLET said, that there was no other
ground beside that stated by the Learned Counsel, Se
warrant the presumption that this paper was written
in Leicestershire, namely, the date of the letter itself
at Kirby Hall.
Mr. Pitt Lies observed, that the date afforded as
ground fur presuming that this paper was ever pub.
Robed, or even put into any post-office in Leicester-
shire. In the evidence, indeed, upon the trial, there'
was nothing to shew whether this paper was put into
the post-office in Leicestershire or Itutlandshire. But
If the Coitnfel fur the prosecution desired to establish
A* fact that Sir F. Burdett remained in Leicester-
shire throngh the whole of the 22d and MI of August,
that was a tlict catmble of proof through some of the
Honourable Baronet's servants or inmates. And why
did they net adduce such evidence instead of relying
'upon the presumption raised ky the testimony of the
toll-gate-keeper—instead of relying upon testimony
front which it must puzzle any wan of common sense
to f min an opinion whether Sir F. Bartlett remained
in Leicestershire throughout the 22d and 23d of
jAngust. Yet with such evidence alone a Jury were
called upon to pronounce a verdict, on presumption
j that the Honeurable Baronet was throughout those
I days in Leicestershire, while the adjoining county was
but a very few miles from his residence. The fact
was, indeed, that the verdict in this case was liable to
all the objections urged against the emilict width
respect to the seven Bishops, where it was presumed
that the petition containing the alleged libel was de-
livered Itt the King by the Bishops, because it was
sect in his Majesty's bands.
Mr. Justice Bairev.---There was ao evidence

rt,r ('f-ti'

.-Liport. .r
•
11 41 a
A. 4
4":"/
rvvvarsiffifik

_r -...... _,r.. _

PIM. Sorts Pr,

that the petition of the Bishops was written in Mid..
dims, or that they delivered it'll) the King.
The Cmt sr-Jos rtes.---No, there was So eeidenee of
Ruda delivery. For any thing that appeared in evi-
dence, the petition might ba‘e been privately takes
out of the pocket of the Bishops, and conveyed by others
to the King.
Mr. Justice Briir.—There is this distinction be-
tween your ease end that of the seven Bishops. There
is evidence that yon caused the paper to be published
by sending it to Brooks ando addressing it to the
Electors of Westminster.
Mr. Pnturs.-L-The petition of the Bishops was
addressed to the King. The Learned Gentleman await
contrasted the presumptions which he Lad raised as to
Bickersteth's having been in London two or three da!•s
before the delivery of the paper under i-On'ildieration
to Brooks, and as to the probability that the fstter
might have been put Into a post office in BtNandshi-s,
and never seen by any person but the Writer hius,t2:
until it reached London, with that prestimpiion upta
which the verdict was found, that this paper was pat
into a post-office it Leicestershiii, of carViid to 114:d-
-dleses. by Biekersteth, maintaining, that the former
presumption neutralised the latter, to neither of
would any attention be paid upon a civil rase.
Mr. Justice Bssr, adverting to the comparison.
drawn between this case and that of the seven Bishops.
said, that in the latter the petition complained of wa•
not proved to have been written in Middlestit,while i.L
the former it was proved that 'the pa, er alluded to
wus written in Leicestershire.

Mr. Pitt:Ars observed, that as the proceeding-
against the seven Bishops was for a conspiracy, any
act done in furtherance of that conspiracy was legallr
admissible in evidence. Here the Learned Gentlmam
animadverted upon the :Ms-direction of the Learned
Judge, which formed another ands main ground to
sustain the rule. The Learned Judge, itt summing u:),
thought proper to observe, that " he felt no difficulty
as to die publication of this paper in Leicestershire.
It was delivered open and unsealed to Brooke, and pro-
bably travelled with Bickersteth from Leicestershire ;
adding, that if the paper were proved to have been
either written or published in that country, Inch proof
would be quite sufficient to warrant the Jury in find-
ing a verdict against the defendant ; and also, that if
the paper were not written, or rt into. a post-offic.• in
Leiceatersitire.it was open to Sir Jittriett toprove that,
while the absence of such proof must form a presump-
tion against him." Such, the Learned Counsel oh-
served, was the 'abidance of the Learned Judge's
direction to the Jury, as he found it in a report of his
Lordshipl speech, the accuracy of which would not,
he thought, be questioned. In combating the pre-
sumption raised by the Learned Judge, and communi-
cated to the Jury, Mr. Phillips observed, that his Lord-
ship called upon Sir Francis Burdett to prove a ne-
gative which might be utterly incapable of proof.
For instance, if the Honourable Baronet himself alone
knew where this paper was written, or into what posi-
office it was put, to be forwarded to London, what evi-
dence could he adduce to negative the Learned Judge's
presumption ? lie could not help saving, that the
presultiptions raised by the Learned Judge were quite
unwarranted by any evidence—and particularly that id
which he spoke of the paper travelling with Mr. Biek•
ersteth from Leicestershire to London, and of its hav-
ing been delivered to that gentleman at Kirby !fall.
There was not a single particle of evidence to sustain
such presumptions, and therefore, the Learned Judge
was gibing an impression to the Jnry which was nut
sustained by any proof whatever. Quite the ?ontrarv,
indeed, of airy such delivery to Bickersteth Was the
natural conclusion from the evidence. When then it
was recollected with what peculiar deference a Jury
generally looked to the opinion of a Judge, especially
in doubtful cases, he submitted to the judgment of
their Lordship, that such misdirectien as he had quoted,
formed the strongest ground for setting aside this ver-
dict, and granting a new trial. There were Teri, ns
considerations belonging to this particular case, wi. rh
he need not detail, but which powerfully called for the
most diligent and impartial investigation of its merits,
before a final decision was pronounced upon the sub-
ject by their Lordships. He should only add, that it
was of the highest importance that the adtslaistration
of public justice in this country Shoal& be Stet only
pure but utisuspeeted.
Mr. litatuntes set out with stating, that one of
three things must be established in this case, ttr the
verdict could not possibly Stand ; either that the
mere writing of the paper alluded to was an offence,
or that the writing and publishing it was an offence:
or that the writing it in Leicestershire, red putting
it into a postmffice in that county, to be forwarded to
London, was a publication. In either of the latter
cases he would admit that Ms client had committed
an offence, and that the verdict should not he disturb-
ed. But against the first case he should enter his
protest. The Learned flentleman quoted the authorltv
of Hale's Pleas of the Crown, lierjeant Hawkins, att.!
Lord Mansfield, to shew that as to the rule of law for
laying the restore for any offence in the conittv ice
which it was committed, tier* was as
tween cases of trimly and miaileenesuare.
Mr. Justice BAYLET assented
serving that he recollected a
tried for a misdemeanour in Surrey,
an assault committed in one of the
'south side of London Bridge. •

Jntige's directiun npon its heinj
houses alluded to were in the Cit.
Mr. Justice Bus r observed, that
doubt of the lA•arned Counsel's
Mr. BLACIIIII2IO4 expressed a
would ever be entertained on the
cootie/ to enforce the arguments .
intim/ authorities, the doctrine
Learned predecessors. Among
declaration of Lord Coke, that
could be taken cognizance of onl,

, .>
1)1:
1‘;
1
t
1
11
1
11
\
• i
i
1
1
. -
1
I"

was mo difference b,•
weelguer.
I is this propesi lino. ob-
eli"e in whrit k matt
trey, in contequence of
the fuer honors on the
was acquitted by the
g proved that t►e fuer
:its of Loudest.
that then could be no
position.
a hope that no doubt
to subject, aid he pro-
s and to support, by ad-
rise laid down by Isis
others, he stated the
merely writing a lib►l
sly in the Star Cbaas-

Sr ; and also theopinton of Lord Chief Justice De
'trey, that even printing a libel might be an innocent
art, but that prima itteie it must be understood
not to be meant for publishing, unless qualified by
eireunistances. In a Bill brought into the House of
Commons by Mr. Doddeswell, upon the subject of
libel, it would be 'seen that the publication was
what he and his eminent supporters deemed
the offence, and the nme was the express
o?inioa of the ..1-a.iges in their answer to the
appeal of the Lords upon the act of the :12el of
the late Kiog, for regulating the law of libel.
Upon these grounds, then, he contended against the
doctrine laid down by the Learned Judge on the trial
of tb:s case—namely, that the mere writing, without
the publication of a libel. was a criminal (offence.
But he had the farther authority of Lord Elletilm-
rough, in Judge Johnson's case, that publication
I onstituted the offence; for, nithout publication, how
c.oild Lord de Grey's definition of a libel be in:tint:tin-
e I—namely, that it was scattering firebrands, arrows
an i death among the people ?
Here the L.4to ('ter:►-JL•••rtce interposed, and said
that as Justice Holrov.l w.is under the necessity of
leasing the Court, the farther bearing of this case
must be postponed. _ _ _

The ArriiitNev-GENIERSI. expressed a wish to know
it was their Lord.hips pieasure that the argu-
iii•ult should he resumed to-morrow ?
Mr. Justice BATLEY uliglerVell, that there was no
less than SI causes in the special paper, while 11
causes stood (net' for trial since the last term. This he
iii•mtionctl. in order that the Learned litoitleman
I.,izlit be aware of the state of the business before the
'u

The Clitcr-irsrtce said, that at least this cause
not be proceeded in to-morrow, as the Court
1:1•::t go into the special paper.
No dad• was fixed for the further hearing of this
i::l;oirtaitt cause, the public intere,t with regard to
111.ivit was clearly esinced by the crowd that tilled
t:.t. Court.

AL