[498 all this introductory evidence of the fact, these But it is supposed we have called worse witlibels are produced in the hand-writing of the nesses than we might have produced. Upon defendant. Can you doubt for a moment, this point I have only to observe, that although that the publication was by his procurement? the office of the defendant, as counsel to The case in my opinion is as clear as the evi- | the Revenue-board, terminated in 1801, dence in the case of the Seven Bishops was four years ago, it is not four years since disputable. Then as to the evidence of its these libels were written, for they were pubbeing the hand-writing of judge Johnson, lished in 1803; but this difficulty is got over I have proved it by witnesses who have by the evidence, that the hand-writing of the spoken to their knowledge of his manner of defendant has not in the least degree altered writing. But there are some material obser- from what it was when the witnesses speak vations that ought not to be omitted. If this to their knowledge of it. What is the remedy were a question whether a forgery had been proposed by the defendant's counsel? that we committed, you would consider whether the should call people from the post-office, who person who was supposed to have forged the were in the habit of seeing his franks. Why, hand-writing of judge Johnson had any in- though it is true he used to frank when he was terest in doing so; if you feel that he could a member of the Irish parliament, yet he ceashave no interest in forging it, that circum-ed to do so in 1801 when he was made a judge. stance alone affords a presumption of its not being forged. There is no colour for supposing that the person who is stated to have forged the defendant's hand-writing in 1803, had any reason which could have actuated him to do so. The witnesses say generally, that he wrote so like the judge, it could not be distinguished. My learned friend says he is of opinion that the witnesses spoke from their honest belief, as to the libels being actually the hand-writing of the person who was in the habit of writing like the judge; and yet the witnesses themselves tell you that they do not bear any resemblance at all to it. My learned friend also says, that the first blush is most to be considered in the testimony of witnesses to hand-writing; and that when they come into court with their minds prepared to identify it, they are more likely to speak to it as that of the person to whom it is attributed. I beg leave to ask you, whether the inference is not directly the other way; and that when witnesses come prepared to negative hand-writing, they may not be actuated by an inclination, which induces them to deny the resemblance where it really exists, though it may be ever so strong.

But let me ask, if evidence drawn from any source can be accurate, must not that which we have produced be peculiarly so? What proof of hand-writing can be more complete than what we have given you? We have produced to you Mr. Waller, the solicitor to the commissioners of Customs, and Mr. Edwards, who was clerk in the solicitor's office, besides other witnesses. These were persons who had constant opportunities of seeing the defendant's writing, and knowing it under every shade and aspect, whether written as he ordinarily wrote, or closer, or more diffuse. There is not the slightest imputation on the characters of these witnesses. The case of my learned friend is simply this, that they may be mistaken. If they speak falsely, they must speak corruptly, Their testimony is, however, to be compared with that of the defendant's witnesses, who say there is no resemblance between the hand-writing of the libels, and that of the defendant. Mr. Waller tells you he really believes it to be his hand-writing; the other witnesses say the same. You will weigh the degree of credit to be given to the witnesses on both sides; you will bear in your minds what they have respectively proved, and distinguish between the probability of the evidence on the one side and on the other; and I entertain no doubt, that your verdict will be perfectly consistent with the justice of the case.

SUMMING UP.

Our witnesses have told you, that the libel is not written in the usual hand-writing of judge Johnson, but more in the style of a person endeavouring to get as much as possible into one sheet of paper. What is the evidence on the other side? That it is not so free a hand as the judge writes: if so, then it is not so free as the writing of the other Lord Ellenborough.-Gentlemen of the Jury; person, whose hand resembles his: it is un-This is an indictment against the honourable questionably the writing of the one or the Robert Johnson, one of the judges of the other; it is the writing of judge Johnson, or court of Common Pleas in Ireland, for a libel. it is the writing of Mr. Fleming, or Mr. Card. The first consideration is, whether the paper That which bears so much dissimilitude to the that has been proved (whatever may be its writing of judge Johnson, must be dissimilar quality), was published by Mr. Justice Johnto the writing of Mr. Fleming or Mr. Card. son? The second is, whether, if the paper That two things which are equally alike to a was published by him, it is a libel? The third, must perfectly resemble each other, is latter point it may be as well to dispose of in a proposition which cannot be controverted. the first instance. No question is made as to It is clear that one or the other must have the publication itself being a libel; nor inwritten the libels; and yet the defendant's deed could any question be agitated upon that witnesses tell you the writing bears no resem-subject, for it certainly does, in various ways, blance to that of either of them. libel and traduce the king's government in 2 K

VOL. XXIX.

his subsequent number; that such notice was acted upon by the author of the libels, who transmitted the letters, which appeared to have been written by the defendant; that the postscript to the letter of the 28th November recognized the antecedent letter of the 29th October, and showed that the person who wrote the last letter wrote the first.

Ireland, vilifying and degrading the persons entrusted with the first offices of the state in that part of the United Kingdom, particularly the lord lieutenant and the lord high chancellor. It defames the lord lieutenant as a man only fit to be a feeder of sheep, states that his head is made up of particles of a ligneous tendency; and then, comparing it with the Trojan Horse, adds, that notwithstanding His lordship read the letters signed Juits supposed innoxiousness, its hollowness verna; and remarked that the question was, would be soon filled with instruments of mis- whether the jury would not think themselves chief. As to the lord chancellor of Ireland, warranted in connecting the proposal to give it degrades him in terms no less libellous; it the communications, with the letters which states him to have cut off from the secretary were afterwards written by somebody or other? of the master of the rolls certain fees of office, Speaking of the second letter, he said, does for the purpose of throwing them into the not this plainly refer to the former letter? it hands of a creature of his own; and it puts a evidently does refer to the context of the first; very invidious contrast between the character and the two letters being in the same handof the lord chancellor and the late lord Ken-writing, you are to determine whether they yon. It likewise traduces Mr. Justice Os- were not both sent for publication by the same borne, and states him to have acted corruptly, person. under the influence of Mr. Marsden, the under secretary of state, whom it accuses of having washed his stained hands in the very fountain of justice. It contains also other language of reproach, equally defamatory, applicable to all the persons mentioned in the publication. With respect to all this, it must be quite unnecessary to detail it you; you have heard it stated at large in the opening of the case, and therefore it would be superfluous in me to repeat all the particulars at length.

There can be no doubt in the world, that it is a very gross and scandalous libel, highly injurious not only to the characters of the persons it defames, but to the government of the country. No question has been made with regard to its libellous tendency; if it had been raised, you could not have hesitated one moment. The point is then reduced to this question, whether, supposing it to be a libel, it has been published by the defendant in the county of Middlesex? There is no sort of doubt as to its having been published there; it there reached its destination, and was printed by Mr. Cobbett in his Political Register; the only question is, whether this publication was caused by the transmission of the manuscript from Dublin? Now, whether that is brought home to the defendant, depends on the evidence, and I will state the whole of that evidence to you.

The noble and learned judge proceeded to recapitulate the whole of the evidence on both sides, verbatim, commenting, as he went along, on the testimony of the respective witnesses. First, as to the evidence of Mr. Cobbett, he observed, that the strict inquiry made on his examination, with regard to the covers, was to ascertain with certainty whether those covers, which were addressed to Mr. Budd, contained the libels in question. His lordship added, that it was obvious, from the evidence of Mr. Cobbett, that he had received a previous overture, on the part of the person who afterwards sent him the letters signed Juverna; that he noticed it, by giving it an answer in

The next evidence, said his lordship, is that which relates to the fact of the handwriting. This evidence is necessarily coupled with the overture made to Mr. Cobbett; and the fact is to be made out by proof, that the defendant was actually the writer of the libels. The evidence on that part of the subject is what I am about to state to you.

His lordship read over the evidence of Mr. Waller, Mr. Ormsby, Mr.Nunn, and Mr. Edwards, without any particular comment, farther than that, from the official situations they held, they were persons who appeared to be every way competent to identify the handwriting of the defendant.

Having finished their testimony, he said, the libel was then proposed to be read; but a question was raised by the counsel for the defendant, as to proof of the hand-writing being proof of the subsequent publication in the county of Middlesex; and the precedent of the case of the Seven Bishops was urged in support of the objection. Certainly to have admitted, as sufficient, such proof of publication as was brought forward against those reverend characters, would have been unjust, and contrary to every known and established principle of the law of evidence; but in this case I was clearly of opinion, that the precedent did not apply; for I thought, and I still think, that the hand-writing having been proved, there was in the libel itself a sufficiency of internal evidence, to be left to you to say, whether the person who wrote it was not the person who published it. On the part of the defendant there were called, in order to negative the fact of the libel being the defendant's hand-writing, the following wit

nesses:

[Here his lordship read the evidence in sup

port of the defendant's case.]

The first witness, Dr. Jebb, would have you believe, that a gentleman of the name of Card had come forward, and said he would avow himself the author, but for his apprehensions that

certainly throws great discredit on the testimony of any witness.

Gentlemen of the jury-this is the evidence on the one side and on the other; and in deciding whether the defendant has been guilty of the crime imputed to him, your judgment will turn principally upon the fact, whether this is or is not his hand-writing. There is one very strong circumstance which I should not omit to mention to you. It is stated that judge Johnson knows the person who actually transmitted this libel from Dublin to the publisher in this country. If he is really acquainted with this fact, it is singular, and almost incredible, that, aware as he must be of the pe

his avowal would be attended with the destruction of his family. It is very extraordinary that this person, whoever he is, who writes As to what has been told you by the next so like judge Johnson that their writing witness, Mr. Giffard, respecting lord Hardcannot be distinguished, should have written wicke's having turned him out of office because that which is produced to-day, and stated by he was a Protestant, it is a libel on that noble the witnesses not to bear the least resem-lord's character, to suppose there can be truth blance to his character of writing; but it seems in such a statement. If it were possible that there have been some kinds of experiments lord Hardwicke, or any other man, had been made, with a view to ascertain whether an- base enough so to have acted, it is not at all other person could not write like the judge; probable that he would have been hardy and it is said, that after the company present enough to have avowed it, as the witness tells had put their initials on a paper, it was taken you he has done. away, and afterwards brought back, in order to enable them to give evidence, that judge Johnson's hand-writing could be successfully imitated by that person. One is at a loss to conceive why this imitation of his hand-writing should have taken place; if it were only for the purpose of having it believed, that another was in possession of the faculty of imitating his character, I do not see how it is at all consistent with that view and object, that witnesses should be brought forward to prove, that this is not like his writing in any degree. The course of the examination of the witnesses tends to the inference, that although two per-rilous situation in which he stands, he should, sons wrote so much alike that their writing could not be distinguished, yet that what is supposed to be the hand-writing of one of them, has no resemblance to the character which it professes to have imitated. The utmost of this experiment is, that in the opinion of the witnesses two persons wrote alike; but that result might have been attained by the person who made the experiment having brought into the room a brief on which judge Johnson had antecedently written, with a view to its being presented at the end of two or three hours. Whether there is any thing in this observation, it is for you to judge; but the only conclusion I can draw is, that it appears very inconsistent, that a person should be said to write so like judge Johnson, that the style of the one cannot be distinguished from the other; and yet that witnesses should afterwards come into court, and pretend that there is no similitude between their writing.

His lordship made no observations upon the evidence of Dr. Hodgkinson.

As to Mr. Archdale, his lordship still addressing the jury, said-It may be necessary for you to attend to the demeanor of this man. He has said, upon his oath, that if, upon his going out of court at this late hour of the evening, any person whom he did not know, were to ask him to walk with him to Whitechapel, he would go with him; and he also tells you, he went to a house in Dublin, only because he was not afraid to go any where such a mode of giving evidence in a court of justice,

from a false principle of tenderness towards the family of such a man, prefer concealing him, to the injury and utter destruction of his own character, instead of bringing him forward to meet that punishment and disgrace he so well merits, if he is the real delinquent. Having such a man in his power, and omitting to produce him, is past my comprehension. Whether it is probable, or at all reconcileable with the general experience of mankind, it is for you to say. If you believe this to be the handwriting of judge Johnson, you will have no question to decide as to the quality of the publication, but you will find him Guilty. If, upon a review of the whole of the evidence, and comparing it together, you should be of opinion it is not his hand-writing, you will in that case pronounce him Not Guilty. With these observations, I leave the question of his guilt or innocence in your hands.

The jury retired to the judges' chamber, behind the court, for about a quarter of an hour, and returned with a verdict of GUILTY.

The trial commenced at ten o'clock in the morning, and concluded about nine at night.

A nolle prosequi was entered upon this indictment in Trinity term, 1806, by the attorney-general, sir Arthur Pigott; and Mr. Justice Johnson retired from the bench upon a pension for his life.

673. Proceedings on the Trial of an Action brought by JoHN THOMAS TROY against HENRY DELAHAY SYMONDS to recover Damages for the Publication of a Libel on the Plaintiff in the Anti-jacobin Review; tried in the Court of King's Bench Westminster by a Special Jury, before the Right Hon. Edward Lord Ellenborough, on Thursday July 11th: 45 GEORGE III. A. D. 1805.

Counsel for the Plaintiff.

The Hon. Thomas Erskine [afterwards lord chancellor Erskine]-Mr. Wood [afterwards a baron of the Exchequer]—Mr. Talbot. Attorneys.-Messrs. Frogatt, Lightfoot, and

Robson.

Counsel for the Defendant.

proofs of the loyalty of Catholics, the Address of Dr. Coppinger to his flock at Cloyne, which recently appeared in the newspapers, and the late Exhortation of Dr. Troy in Dublin.

"Nothing affords such strong evidences of Popish dissimulation in Ireland, as the exhortations of the Romish clergy, and the loyal addresses of their flocks. They have commonly been found to be sure presages of a Mr. Garrow [afterwards a baron of the Ex-deep-laid conspiracy against the Protestant chequer]-Mr. Park [afterwards a judge of state; and after it has exploded in rebellion, the Common Pleas]-Mr. Richardson [after the delusions of the people, and their treasontheir clergy generally lament, from the altar, wards a judge of the Common Pleas.] able conduct towards the best of sovereigns, Attorneys.-Messrs. Neeld and Fladgate. and the only constitution that affords any deCourt of King's-bench, Westminster, gree of rational liberty; though from the naThursday, July 11, 1805. ture of their religion they must have known, and might have prevented it. The dreadful MR. TALBOT.-May it please your Lord- rebellion of 1798, accompanied with such inship-Gentlemen of the Jury-In this action, stances of Popish perfidy, must convince the John Thomas Troy is the Plaintiff, and Henry reader, that no reliance is to be placed on the Delahay Symonds is the Defendant. The de- oaths or professions of Irish Papists to a Proclaration states, that the plaintiff is a loyal sub-testant state. Dr. Troy must have known all ject of the king, and that he has never been guilty of any kind of treason or misprision of treason, and until the publication of the libel complained of by this action, had never been suspected thereof. It also states, that the plaintiff is a person professing the Popish religion in Ireland, and that he there exercises the function of a Roman Catholic priest, and that he is commonly known by the title of Doctor Troy. The declaration then alludes to a certain exhortation published by the plaintiff, recommending to the persons to whom it was addressed, a quiet and peaceable demeanor, and also refers to a correspondence between the earl of Fingal and lord Redesdale. It also states, that in the year 1798, there was a dreadful rebellion in Ireland, and that on the 23rd of July, 1803, there was an insurrection there. It then charges that the defendant knowing the premises, but maliciously intending to deprive the plaintiff of his good name, fame, character, and reputation, and to bring him into great infamy and disgrace, and to cause it to be believed and suspected that he had been guilty of treason or misprision of treason, printed and published the following libel:

"Lord Fingal then mentions, as striking

the circumstances which preceded the insurrection in Dublin on the 23rd of July, 1803, and yet he did not put government on their guard. The present administration are convinced of his treachery on that occasion, and yet, for many years past, he had been treated at the Castle with the utmost respect, and had even received favours for some persons of his own family. His Exhortation then, to which lord Fingal alludes, must be considered as a mockery of the state, an insult to the understandings of his Protestant fellow-subjects, and an unquestionable testimony of his want of candour.

"By his orders, exhortations composed by himself were read in many Popish chapels in his diocese, on the morning of the 24th of July, and a few hours after the insurrection and massacre had taken place in Dublin. The reader must be convinced by the following moral evidence, that these exhortations were framed previous to that dreadful event; there was no allusion to it in any of them, and the distance of the chapels in which they were read from the metropolis was so great, as to make it physically impossible that they could have been framed, and sent to them, subsequent to that catastrophe."

There are other counts, gentlemen, charging the libel in different forms, to the plaintiff's damage of Ten Thousand Pounds. The defendant has pleaded that he is not guilty of this libel, and that is the issue which you have now to try.

contrast of the Romish communion; and its faith as described by a celebrated writer being the very protestantism of the protestant religion. We feel, and none more than myself, that nothing has more contributed to keep alive animosities amongst mankind, and to

in due season to unite the whole Christian world, than alienation from those who differ from us in religious creeds. It is an evil, however, which, thank God, is most happily passing away, and Dr. Troy has always done his part to accelerate its progress. I wish to avoid all political allusions; but this I may say with truth, that though many great and eminent men in parliament have differed on this momentous subject, and although it has strongly agitated the Roman Catholics who seek emancipation, yet the controversies have been every where discussed with exemplary moderation; and of this I am also confident, that whatever may have been the opinion of the lord chief justice on this subject, and though adhering to the opinion he delivered in parliament, he will nevertheless tell you (as his country has a right to expect from him), and impress it upon your attention in the decision of the matter now before you, that Dr. Troy, though a Roman Catholic, and as such holding tenets different from himself and from you, is entitled to the same measure of justice as any other man however distinguished by his zeal for the religious system which all of us profess. If Dr. Troy, instead of a sincere Christian teacher, had been a traitorous hypocrite, secretly wishing for resistance to authority, as has been wickedly imputed to him by the defendant; if he had been, in fact, an abettor of rebellion, instead of a dissuader from violence, making use of his religious station as a cloak only to conceal his real disposition, the truth of this might have been pleaded as a justification, and being proved, the defendant must have had a verdict; but no such plea having been put upon the record from the consciousness that it was incapable of proof, the plaintiff stands before you in point of law, what he is known to be in fact, an innocent and meritorious person.

The Honourable Thomas Erskine;-Gen-retard the great work of reformation ordained tlemen of the jury; I am much indebted to my learned friend for the clear and perspicuous manner in which he has stated the complaint which Dr. Troy makes upon this record, because by it you must already be aware of the importance of the cause you have to decide. If the solicitor-general, who was my justly successful adversary in the last cause, obtained large damages for an assault only on the person, how much more loudly does the present call for your serious consideration. In that case the passions of the defendant were inflamed probably from great provocation; but that was held to be but little mitigation when the plaintiff's body was wounded and disfigured; how much greater then is the injury, where there is a wounded spirit, when the injury is not done to the body but to the mind, and when the offence does not arise from the sting of provocation, but was committed in cold blood. The case I have alluded to was only a sudden quarrel, yet as it was in a public place where many persons were present, it was justly observed by the noble judge that though public example could not strictly nor directly apply in a civil action for damages, yet it could not be lamented when it had an indirect and almost unconscious effect on the minds of a jury in such a case. How much more then here when an unoffending individual has been so unjustly and publicly calumniated; but I should be myself a calumniator, if I described Dr. Troy as only innocent and unoffending, when with the highest possible merit, he stepped forth as a minister of religion in a most perilous crisis. If he had consulted only his own quiet, and preferred his own safety to his duty, he could not have been assailed by this anonymous libeller; but because possessing an extensive influence over the members of his communion, he employed it to recall the disaffected to their allegiance under the most solemn and impressive sanctions of the religion they professed, what injustice can be more disgraceful and disgusting than with the full knowledge of this exalted virtue, to make it the very foundation of scandalous defamation. It is this which Dr. Troy so justly complains of as a depravity of the most dangerous character.

Gentlemen, I do not wish to overstate the plaintiff's title to approbation and admiration. Indeed I am but ill qualified to become a declaimer upon the merits of the Catholic church, being not only a Protestant, but a native of that part of his majesty's dominions where the national church may be said to be the very

Alluding to an assault at the OperaHouse tried just before the present cause.

In actions for libels and defamation I have often said, and I now repeat it, that no money can be a compensation for calumny-character cannot be compounded for by money; if a slanderer, instead of putting me to the cost and trouble of an action, were to send the largest sum to my bankers, should I be happier on that account, when my estimation in the world was tainted? it is therefore an imperfection in our law, but for which there is no remedy, that neither criminal nor civil justice can restore to the calumniated sufferer what he has lost. All that your verdict can do, and that you will take care it shall do, is, that the reproach, and your judgment of its falsehood, will go down to posterity together; so that whoever shall read this Anti-Jacobin Review hereafter, will know at the same time