Pagina-afbeeldingen
PDF
ePub

extent of charity can consider it a simple, innocent republication. If you had meant it in that view, why not publish it with the ancient title, and why not state that it was published in such a year? Though even if you had done that, it ought not inevitably to retain one sense. But you yourself give it a present application; you address it to the "tradesmen, mechanics, labourers, and other inhabitants of the town of Newark, on the subject of a parliamentary reform." How are they to know that it ever was published before? how can they apply it but to the present existing parliament of Great Britain? The learned judge who tried this information, left the case to the jury, in a fair and candid way. He put this question to them: "Are you satisfied that the defendant published this paper with a malicious intent, or not?"-There could not be two opinions on the subject among honest men, and the jury found you guilty.

The malignity of this paper having been esteblished by the jury, it only remains for this Court to do its office. This Court will always know to temper mercy with justice where there

is room for it, but here there is no palliation As to the first of these libels, at least, your own counsel owned that nothing could be said for you. It behoves, then, this Court to try what can be done by the severity of punishment. And though there are but small hopes of your reformation, it may at least operate to deter others from being guilty of the same enormities. This Court has taken the magnitude of your offence into their consideration, and this Court doth order and adjudge, that for the first libel you pay a fine to the king of fifty pounds, and that you be imprisoned in his majesty's gaol of Newgate for the term of two years. And that for the second offence, you pay a further fine of fifty pounds, and be imprisoned in his majesty's gaol of Newgate for the further term of two years, to be computed from the expiration of your first imprisonment. And that after the expiration of your imprisonment, you find security for your good behaviour for the terin of five years, yourself in 2001. and two sureties in 501. each, and that you be imprisoned till such fines be paid, and till such securities are found, as aforesaid.

586. Proceedings against ALEXANDER WHYTE, on an Indictment for publishing a Seditious Libel; tried at the Quarter Sessions, holden for the Town and County of Newcastle-upon-Tyne, on Wednesday, July 17th: 33 GEORGE III. A. D. 1793.

BEFORE reading the indictment, Mr. Clayton, town clerk, asked the defendant if he had a copy of the indictment.-The defendant answered, No.-He then asked if he had any gentleman of the law employed?-The defendant answered, he had none. Mr. Clayton asked if he had received the advice of any Jawyer in the present case?-The defendant told him, none. He said, the Court had been informed the defendant wished to withdraw his former plea, and plead guilty to the indictment. The defendant said, he had never any such intention.

Mr. Clayton said, the defendant might object to any of the jury he did not approve of before they were sworn.

The Defendant said, he knew none of the gentlemen impanelled, and therefore could have no reasonable objection to any of them. Mr. Wilkinson, on the part of the crown, in a speech of some length, opened the cause; wherein he depicted the heinousness of the offence, and the necessity of exemplary punishment.

John Ridley sworn.

Mr. Clayton. Do you know the prisoner at the bar?-Yes, Sir.

What business is he?-He is a baker. How long have you known Mr. Whyte?

I have known him these twelve or eighteen months.

How came you acquainted with Mr. Whyte? By seeing him sometimes in Mr. Loggie's, and thinking from his conversation he was a man I might learn something from.

Do you mean you might learn something of politics from him?-No, Sir, we seldom discoursed upon these matters.

When did you see Mr. Whyte last at Mr. Loggie's?-It was on the morning of the 17th of February.

What is Mr. Loggie?-He's a beer-brewer, and keeps a public-house in Grindon-Chare, upon the Quay-side.

What time of the day was it you saw Mr. Whyte there; was it fore or afternoon?—It was about eight o'clock in the morning.

You were then drinking together in Mr. Loggie's house, were you?—Yes, Sir. Had you any appointment to meet Mr. Whyte that morning?-None, Sir.

Did you see him then have any paper in his hand?-He pulled a paper out of his pocket, and I desired him to read it..

Did he read that paper to you in Mr. Loggie's on the morning of the 17th of February? He read a part of it.

Did he afterwards lend you that paper ?— Yes, Sir,

then in liquor; how came you then to understand what I said, when you say I gave you directions to read it to your friends?-I understood so much.

What was his reason for lending you that paper?--I asked the favour he would lend me the paper till next day.

What was your reason for asking Mr. Whyte to lend you that paper till next day?— I thought there might be something curious in it; and though Mr Whyte is a good reader, I did not then understand what he said; he was in liquor at the time.

Did you understand there was any thing seditious intended by that paper?--No, Sir; I did not.

Did Mr. Whyte, when he lent you that paper, say you might read it to any other person?-He said I might read it to a few friends.

Did you then, in consequence of his permission, read that paper to any of your friends?-I was reading that paper to some of my acquaintance at the Angel Inn, when serjeant Punshon plucked it out of my hand, and carried it to a magistrate.

[This being again put in nearly the same words, he gave the same answer.]

Can you say, that you understood when I lent you that paper I intended thereby to publish it?--No, I certainly did not; I never thought it was intended for the public.

it

Serjeant Punshon sworn.

Do you know John Ridley?—Yes, Sir. What business is he?-He is a butcher. Do you know that paper?—Yes, Sir; I took from J. Ridley on the 18th of February last. Was J. Ridiey then reading that paper?He pulled out that paper from his pocket, and desired me to read it to the company.

How many might there be in the company at the time?-About a dozen.

Did you then read that paper? - No; I

turned it to him again.

How many might there be in company when you were reading that paper at the Anlooked at it-I thought it nonsense, and regel-Inn? There might be ten or twelve. Would you know that paper again?—I think I would.-[The paper produced.] Is that the paper you received from Mr. Whyte on the 17th of February ?—That is the paper.

Look at it; have you any mark to know it by?—Yes, that is the very paper; there's my

mark.

Did you make any alteration in that pper after you received it from Mr. Whyte ?-No, Sir; I made no alteration in it.

Cross-examination by the Defendant.

You say I read part of that paper on the morning of the 17th of February, will you inform the Court and jury what part of the paper it was I then read?--I cannot positively say; but think it was a page or two in the beginning of the paper.

Have you ever seen me write ?-No.
Do you know my hand-writing? I think

I do.

Can you positively swear I wrote that paper?--I think you wrote that paper.

Can you upon your oath positively say I wrote that very paper; or do you only believe I had wrote it?

[Here the witness began to hesitate; the Court required him to give a direct answer to the question.]

You say you desired me to read, and you asked the favour I would lend you that paper? -Yes, Sir.

Did you then understand there was any seditious purpose intended by that paper? No; I thought it perfectly innocent, and intended only for amusement.

Did you ever look upon me in the light of a malicious or seditious person?-I always looked upon you in the light of a friendly and agreeable companion.

Now you have said you did not understand one word I read in Mr. Loggie's, as I was

What do you understand to be nonsense?— I cannot say, I cannot say; I did not understand it.

How came you to sieze the paper, when you say you did not understand it?-J. Ridley fell a reading of it, and I then thought it was queer; then I laid hold of it—he d―d my Soul I should not have it; I carried it to alderman who sent me with it to

Mr. Mayor.

What did the mayor say to you when you brought him that paper?—The mayor desired me to bring J. Ridley before him

Did the mayor order you to bring Mr. Whyte before him?-No; but he was then passing by, and J. Ridley, who was then on the Court stairs, pointed at him, and said, yonder is Mr. Whyte who wrote the paper.

What did you do then?--I went after Mr. Whyte-I did not know him then -I asked

if that was his name, and desired him to come and speak to J. Ridley; then I went in to Mr. Mayor, and got an order to detain

him.

Cross-examination.

Was I present when you seized that paper? -No; you were not present.

Had you any warrant from a magistrate for seizing that particular paper?-No; but we had an order to seize all such papers we could find, and bring them before a magistrate.

Who gave you that order?—It was alder

man

Was that order or warrant delivered to you in writing?—No; it was by word of mouth.

Did you consider that any such general order or warrant, by word of mouth from any magistrate, was sufficient to authorize you to seize either men or papers?

[Mr. Clayton said, that was not a fair question; but since the defendant desired it, he would put it to him.-Mr. Puushon answered in the affirmative.]

Did you then think the magistrates could protect you in the execution of such a warrant?-I thought they could.

ADDRESS TO THE JURY.

malicious design of the paper-the seditious purposes it was intended to serve-and the actual publication of the paper, are all of them facts necessary to be proved, before I can be found guilty by your verdict.

Gentlemen of the Jury;-You have heard The evidence is now before the Court, me arraigned at this bar, and in the presence which the prosecutor has adduced to establish of this honourable Court, as a wicked, mali- the facts held forth in the indictment. The cious, and seditious person; and as such, jury will consider how far it goes to establish having wrote and published to the world, a any thing criminal in me. It is such conduct wicked, false, malicious, and seditious libel- only as I am charged with in this indictment with a view to subvert the constitution of this with which the jury have to do at present; kingdom, and sow sedition in the minds of and should the jury find my conduct not such the people. It is you, gentlemen, who are as it is represented to have been by this inappointed to try the truth of these assertions; dictment, or otherwise not of such a maligand it is the undoubted, it is the dearest pri- nant or criminal nature, with due submission vilege of every British subject, that he is en- I affirm, I stand before you an innocent, pertitled to a fair and impartial trial. No Eng- secuted man. And I hope, gentlemen of the lishman should have reason to say that he jury, you will see from the whole tenor of the has been deprived of justice by the slightest evidence, that I am neither that wicked, maimpediment thrown in the way to stop its im-licious, or seditious person, this indictment partial current. It is from the full conviction of the justice the subject has a right to expect from the wisdom and candour of an English court and jury, that I stand with confidence before you, destitute of counsel, or the means of procuring any advice or assistance.

has represented me, nor the author or publisher of the paper set forth in that indictment.

time after, he says, I pulled a paper out of my pocket, which he desired the favour I would read to him; he says, I read part of the paper; he thinks it might have been the first and second pages of the paper, but I was then so much in liquor he did not understand what I said; and after having read part of the paper, he says, he asked the favour I would lend it him till next day, with permission to read it to a few of his friends:-and this, he says, is the same paper now produced in court.

The first witness, John Ridley, in whose custody that paper was found, and who, if ever it was published, must have been the Though my case has been hitherto pecu- publisher-swears, that on the morning of liarly hard, having already suffered five the 17th of February last, he saw me in Mr. months rigorous confinement from a frivolous Loggie's house, in a state of intoxication; our prosecution, and might lay claim to the feel-meeting there, he says, was accidental; some ings of the humane; I shall not, on this occasion, mention it with any view of exciting those tender emotions so congenial to Englishmen. The present case, I am sensible, stands in need of no such defence; had the conductors of this prosecution observed the same degree of moderation, you would never have seen brought forward in this court an indictment loaded with bitter invective, evidently calculated, upon the spur of the occasion, to inflame the minds of the jury, by making the paper, of which I am charged as the author and publisher, speak a language foreign to itself. But I hope, from the candour and integrity of an English jury, I shall have nothing to fear, from either the insinuations or artifice of the advocate for the prosecution; whatever pains those who conducted it may have taken to blacken my character, which, thank God! after six years residence, stands as yet unimpeached in the neighbourhood in which my family still reside; and I may with safety appeal to any magistrate here present, if, during that period, I have been accused of one single act other than that for which I am now upon my trial.

Now, were all that this witness has said true, I humbly presume,-that no wicked design-no seditious purpose-no intention to disseminate doctrines hostile to the constitution, which are the very essence of the crime with which I am charged, can be drawn from this man's evidence, nor from any circumstance of such an accidental interview. Were it proved that I had wrote any paper from malice prepense-had used every endeavour to publish it-and for that purpose, had appointed this witness to meet me at the house of Mr. Loggie or any where else; and then, after having read to him such a paper, deIt was incumbent on the counsel for the sired him to take it, and circulate it amongst crown to make good his charge as to every his friends and acquaintance, for the purpose part of the indictment, and under favour of of stirring up sedition amongst the people, the Court and jury I must say, he has totally and alienating the minds of his majesty's failed in every particular; he has proved no- subjects from the legal government and conthing criminal done by me.-The writing of stitution of this country;-gentlemen of the the paper-the place where it was wrote-jury, did such appear to be the case, you the reading of it on the morning of the 17th of February-the delivery of it to J. Ridley together with the falsity, and the wicked and

would be justified in your own consciences, as well as in the eyes of the world, in finding a verdict against me. But, even according

[ocr errors]

to this interested witness-I say interested, As to the evidence of serjeant Punshon, it because his accusing me was necessary to ex- does not affect me-it goes only to prove, culpate himself; he declares upon his oath that he found the paper now before the Court there was no such thing—no previous ap- in the custody of J. Ridley, on the morning pointment—no premeditated scheme--no ap- of the 18th of February; when he has de parent design to disseminate doctrines hos- clared upon his oath I was then absect; tile to the constitution-he is persuaded the which I hope will be sufficient to convince paper had never been intended for the pub- you, gentlemen, that I was by no means so lic-he obtained a few hours possession of it much as accessary to the publication of it only as a favour--no occasion was sought on

The evidence on the part of the crown, ad my part to publish this paper,no urging of duced to establish the fact, I contend, is de this or any other person to take and publish fective and inconclusive in every part of it; it. On the other hand, all that was done, so far as it is thereby endeavoured 10 bring according to this witness, was done at his home the fact to me, in proof of the allega. own particular request, and under such cir- tions set forth and charged upon me in the cumstances as generally render men incapa- indictment. I say, from the whole evidence ble of reflection. This is his own account of now before the jury, there is nothing more the matter; and the jury will consider what clear, than that this paper was never publiss. degree of credit is due to this man's evidence, ed at all; and at most, does only amount to which is so necessary, and goes all along to an attempt made by J. Ridley towards pus exculpate himself.

lishing this paper, when it was, in an illegal This paper, for which I have been searched manner, wrested from his hand by serjeant as a felon-kept in confinement in Newgate Punshon, who was then possessed of no legal these five months—and part of that time de- warrant under the hand or seal of any mabarred the sight and speech of my own wife, gistrate for that purpose. And how far such ! or any other person—was found in his cus: an illegal seizure of a paper, not so much as tody-not in mine; he was heard reading found in my possession, or read in my prethis paper--not me. I was not so much as sence, ought to have subjected me to such in the company at the time this paper rigorous confinement, and subsequent prosewas reading; how much then is he in- cution, is not now to be inquired into, terested to come forward and accuse me According to the evidence of J. Ridler, in order to save himself? And how much there was only a part of that paper read by my alleged situation, on the morning of the me on the morning of the 17th of February; 17th of February, favoured such an accusa- he supposes a page or two; and he did De tion, I leave with the jury to judge. But I understand one word that I then read. It must insist upon it, that my reading or deli- ought to have been in proof before this bovering a paper to this witness on the morn. nourable Court, what part of that paper it ing of the 17th of February, is no proof of its was I then read, that the jury may be able to being the same paper found in his custody on judge what degree of criminality was conthe morning of the 18th. It might have tained in the paragraph or paragraphs, thea been a paper of a quite different nature I then said to have been read. For if what I then read or delivered; a private letter, or any read was innocent---perhaps it was laudable thing else. It is direct, it is positive evidence --the jury will not find me guilty of publishthe jury are to found their verdict upon. This ing a libel upon the constitution. 'This, I is not an action at law, brought to discover contend, is absolutely necessary to be proved, some secret deed of enormity; which, from in order to affix the guilt of publishing a sedia the nature of the crime, cannot be supposed tious libel upon me, or upon any other perto admit of the most positive proof! No: this son. It is not sufficient in the eye of the is a prosecution for a crime of a quite diffe- law to criminate any man that a libel has rent nature, and requires the highest degree been published, but it must be proved to have of positive evidence. It is not sufficient for been published by him in a seditious manner. a witness to say, he thinks or persuades him- - The managers of the prosecution seem sufself; for the Court must give judgment upon ficiently sensible of this, when they have unquestionable evidence, for publishing to loaded this indictment with so many epithets the world a libel upon the constitution.-See of criminality, they have hitherto been unaHawkins's Pleas of the Crown, vol. 2, p. 613, ble to prove. Thus they seem willing to sixth edition.

have their fellow-subjects criminated upon And will you, an English jury, find a man general averments, as it had formerly been guilty of publishing to the world a libel, of attempted to seize and confine their persons which publication by him there is no evi- upon general warrants; but as an upright dence? A libel must be proved to be wrote judge and an impartial jury saw the dangeor published in the county laid in the indict- rous tendency of the one,-it is hoped an ment, all matters respecting libels being local; English jury will never suffer themselves to - see State Trials, Vol. XII. pp. 316, 319, 8vo be influenced or imposed upon by the other. edit.; and of positive proof, with respect to the No one fact previous to the publication is publisher--see Burn's Justice, vol. 4, p. 672. so much as attempted to be proved-nothing There is no proof of my having wrote or pub- to delineate the malignity-the wicked de lished this paper in any county.

a

sign-the seditious spirit, with which it is so gentleman who filed the indictment, might, confidently asserted that I had wrote and pub- perhaps, have appeared according to its orilished to the world the paper now before the ginal state and intention, perfectly innocent, Court. There is no proof of my having wrote and nothing more than a piece of harmless this paper-none of the witnesses have seen amusement, never intended to go beyond the me write-none of them can swear to my threshold of the author; the fictitious chahand-writing; and with due submission Iracter affixed to the paper shows, that it never must contend, that there has been no legal proof before this Court, that I had delivered this, or any other paper, to J. Ridley on the morning of the 17th of February; for the bare, unsupported assertion of J. Ridley in the present case is totally irrelevant, for the reasons already mentioned.

A libel is justly termed the least definable, and the most ambiguous of all misdemeanors. Our best judges and lawyers have been, and still are, divided upon the subject; which gave cardinal Mazarine, prime minister to Louis 14th of France, to boast, "That if he had but two lines of any man's writing, he could cut off his head." So dangerous a thing it is to the liberties of a free people to encourage prosecutions for libels, that, I am persuaded, no gentleman here present, would ever wish to see himself or his countryman reduced to such a deplorable situation; therefore it has often been attempted to wrest all such trials out of the hands of English juries. The nu merous and various prosecutions, on pretence of libels, during the reigns of the Stuarts, gave lord Sommers occasion of writing his valuable tract, intituled, "Security of Englishmen's Lives." Wherein his lordship says, page 30, "Could we call ourselves any longer freemen, when neither the liberty of free writing or free speech, about every body's concern, about the management of public money, public law, and public affairs, was permitted, but a padlock was put, both upon the mouth and the press as to these matters, and every body was afraid to speak or write, what every body, however, could not help thinking?" His lordship was sensible, that the liberty of the press was so inseparably connected with the liberty of the subject, that every attempt to abridge the one, must necessarily endanger the other.The author of a tract, intituled, "An Inquiry into the Doctrines lately published concerning Libels," published in the year 1764, shows, that it is to such writings as have been prosecuted for libels, we are at present indebted for our civil and religious liberties; he says, page 33, "I am fully convinced, that were it not for such writings as have been prosecuted by attorney-generals for libels, we should never have had a revolution, nor his present majesty a regal crown, nor should we now enjoy a protestant religion, or one jot of civil liberty." Montesquieu, in his Spirit of Laws, says, "Were the liberty of the press permitted, even in the despotic states of Asia, there would be the dawn of liberty."

was intended it should be taken in a serious point of view. It must be allowed, that even the productions, or rather amusements of a leisure hour, could have been no longer innocent, after, by misfortune or otherwise, they should have fallen into the hands of a Richelieu or a Mazarine. But the fatal effects of their arbitrary measures, the sole cause of the present disturbances, which still continue to deluge that unhappy country with blood, ought to be a caution to the subjects of other princes to beware of their footsteps. Though vexatious and cruel prosecutions may sometimes, though seldom, meet with the plaudit of the moment, allow me to say, the very names of the prosecutors have uniformly been handed down to posterity as infamous.

As to the paper being charged as a libel upon the constitution, lord Coke says, "That there can be no libel, where no person is reflected upon or scandalized." Now I do not find that any person is so much as mentioned throughout the whole paper before the Court. The whole language of the indictment in this particular, is foreign to the explanation lord Bacon would have put upon the words of a supposed libel: his lordship says, "That when any word or sentence will bear two senses, one in which they are actionable, and another in which they are not, they are to be taken in the sense in which they are not actionable."-See Bacon's Abridgment, vol. 6, p. 233, 5th edition.

The jury cannot but be sensible how far the managers of the prosecution have deviated from so salutary a rule, as well as from the spirit and principle of English jurisprudence; which by no means authorizes the overstraining of penal laws, and would rather that twenty guilty persons should escape, through default of justice, than one innocent person should suffer. It is the inestimable, it is the inviolable privilege of Englishmen, that in all cases they are to be tried by a jury of their peers, which cannot do wrong to their fellowsubjects, nor deprive them of any of their properties or privileges to-day, by an unjust verdict, which may not be supposed to affect themselves to-morrow. Now I affirm, that unless it can be proved, which I contend it has not been, that I had wrote this paper in a certain county, and afterwards published it for the purpose of exciting individuals to rebellion against the national will, from an evil and seditious mind, you cannot convict me of a libel upon this indictment.

It is not that I am concerned to defend the merits of the paper in question; which, were it deprived of the glossary afforded by the† See Vol. VII, p. 1529, note.

*The name of lord Bacon is here introduced erroneously.

« VorigeDoorgaan »