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extent of charity can consider it a simple, in- , is room for it, but here there is no palliation nocent republication. If you had meant it in As to the first of these libels, at least, your that view, why not publish it with the ancient own counsel owned that nothing could be said title, and why not state that it was published for you. It behoves, then, this Court to try in such a year? Though even if you had done what can be done by the severity of punishthat, it ought not inevitably to retain one ment. And though there are but small hopes sense. But you yourself give it a present ap- of your reformation, it may at least operate to plication; you address it to the “ tradesmen, deter others from being guilty of the same mechanics, labourers, and other inhabitants enormities. This Court has taken the magof the town of Newark, on the subject of a nitude of your offence into their consideration, parliamentary reform.” How are they to and this Court doth order and adjudge, that know that it ever was published before? how for the first libel you pay a fine to the king of can they apply it but to the present existing fifty pounds, and that you be imprisoned in his parliament of Great Britain? The learned majesty's gaol of Newgate for the term of two judge who tried this information, left the case years. And that for the second offence, you pay to the jury, in a fair and candid way. He put a further fine of fifty pounds, and be imprisonthis question to them: “ Are you satisfied ed in his majesty's gaol of Newgate for the that the defendant published this paper with further term of two years, to be computed a malicious intent, or not?”—There could not from the expiration of your first imprisonment. be two opinions on the subject among honest and that after the expiration of your imprisonmen, and the jury found you guilty.
ment, you find security for your good behaThe malignity of this paper having been es viour for the terın of five years, yourself in teblished by the jury, it only remains for this 2001. and two sureties in 501. each, and that Court to do its office. This Court will always you be imprisoned till such fines be paid, and know to temper mercy with justice where there till such securities are found, as aforesaid.
586. Proceedings against ALEXANDER WAYTE, 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. Clay- I have known him these twelve or eighteen
What is Mr. Loggie?-He's a beer-brewer,
What time of the day was it you saw Mr. The Defendant said, he knew none of the Whyte there; was it fore or afternoon ?-It gentlemen impanelled, and therefore could was about eight o'clock in the morning. have no reasonable objection to any of them. You were then drinking together in Mr.
Mr. Wilkinson, on the part.of the crown, Loggie's house, were you ?—Yes, Sir. in a speech of some length, opened the cause; Had you any appointment to meet Mr. wherein he depicted the heinousness of the Whyte that morning!--None, Sir. offence, and the necessity of exemplary pu Did you see him then have any paper in nishment.
his hand ?—He pulled a paper out of his John Ridley sworn.
pocket, and I desired him to read it.
Did he read that paper to you in Mr. LogMr. Clayton. Do you know the prisoner gie's on the morning of the 17th of February? at the bar?-Yes, Sir.
-He read a part of it.
Did he afterwards lend you that paper-
What was bis reason for lending you that then in liquor; how came you then to unpaper?-I asked the favour he would lend me derstand what I said, when you say I gave the paper till next day.
you directions to read' it to your friends?-I What was your reason for asking Mr. understood so much. Whyte to lend you that paper till next day? [This being again put in nearly the same I thought there might be something curious words, he gave the same answer.] in it; and though Mr. Whyte is a good read Can you say, that you understood when I er, I did not then understand what he said; len you that paper I intended thereby to he was in liquor at the time.
publish it?-No, I certainly did not; I never Did you understand there was any thing thought it was intended for the public. seditious intended by that paper?-No, Sir;
Serjeant Punshon sworn.
Do you know John Ridley?-Yes, Sir. paper, say you might read it to any other per
What business is he?-He is a butcher. son?-lle said I might read it to a few friends.
Do you know that paper?-Yes, Sir; I took Did you then, in consequence of his per- it from J. Ridley on the 18th of February last. mission, read that paper to any of your
Was J. Ridley then reading that paper?friends ?-I was reading that paper to some
Hle pulled out that paper from his pocket, and of my acquaintance at the Angel Inn, when desired me to read it to the company. serjeant l'unshon plucked it out of my hand,
How many might there be in the company and carried it to a magistrate.
at the time? --About a dozen. How many might there be in company
Did you then read that paper! - No; I when you were reading that paper at the An looked at it-I thought it nonsense, and regel-Ion ?-There might be ten or twelve.
turned it to him again. Would you know that paper again?-I
What do you understand to be nonsense? think I would.—[The paper produced.]
I cannot say, I cannot say; I did not underIs that the paper you received from Mr. stand it. Whyte on the 17th of February ? - That is the
How came you to sieze the paper, when you paper.
say you did not understand it?--J. Ridley fe!! Look at it; have you any mark to know it a reading of it, and I then thought it was by? –Yes, that is the very paper; there's my queer; then I laid hold of it-hed-diny mark
soul I should not have it; I carried it to Did you make any alteration in that pper
who sent me with it to after you received it from Mr. Whyte ?-No,
Mr. Mavor. Sir; I made no alteration in it.
What did the mayor say to you when you
brought him that paper ?-The mayor desired Cross-examination by the Defendant. me to bring J. Ridley before him You say I read part of that paper on the
Did the mayor order you to bring Mr. morning of the 17th of February, will you in- Whyte betore him ?-No; but he was then form the Court and jury what part of the passing by, and J. Ridley, who was then on paper it was I then real :- I cannot positively the Court stairs, pointed at him, anů said, say; but think it was a page or two in the yonder is Mr. Whyte who wrote the paper. beginning of the paper.
What did you do then ?-I went attes Vr. Have you ever seen me write? - No.
Whyte-I did not know him then-I asked Do you know my hand-writing?-I think if that was his name, and desired him to I do.
come and speak to J. Ridley; then I went in Can you positively swear I wrote that
to Mr. Mayor, and got an order to detain
him. paper ?--I think you wrote that paper, Can you upon your oath positively say I
Cross-examination. wrote that very paper; or do you only be Was I present when you seized that paper? lieve I had wrote it?
--No; you were not present. [Here the witness began to hesitate; the Had you any warrant from a magistrate for Court required him to give a direct answer to seizing that particular paper?-No; but we the question.]
had an order to seize all such papers we could You say you desired me to read, and you find, and bring them before a magistrate. asked the favour I would lend you that paper? Who gave you that order?-It was aider-Yes, Sir.
Did you then understand there was any Was that order or warrant delivered to you seditious purpose intended by that paper?- in writing ?-No; it was by word of mouth. No; I thought it perfectly innocent, and in Did you consider that any such general tended only for amusement.
order or warrant, by word of mouth from any Did you ever look upon me in the light of magistrate, was suiticient to authorize you to a malicious or seditious person ?-I always seize either men or papers ? looked upon you in the light of a friendly and [Mr. Clayton said, that was not a fair quesagreeable companion.
tion; but since the defendant desired it, he Now you have said you did not understand would put it to him.-Jr. Puushun answered one word I read in Mr. Loggie's, as I was in the affirmative.]
Did you then think the magistrates could malicious design of the paper—the seditious protect you in the execution of such a war- purposes it was intended to serve--and the rant?-I thought they could.
actual publication of the paper, are all of ADDRESS TO THE JURY.
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 malig. and 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 aftirm, 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 evideirce, 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 has represented me, nor the author or pubof the justice the subject has a right to expect | lisher of the paper set forth in that indictfrom the wisdom and candour of an English ment. court and jury, that I stand with confidence The first witness, John Ridley, in whose before you, destitute of counsel, or the means custody that paper was found, and who, if of procuring any advice or assistance. 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 oc time after, he says, I pulled a paper out of casion, mention it with any view of exciting my pocket, which he desired the favour I those tender emotions so congenial to Eng. would read to him ; he says, I read part of lishmen. The present case, I am sensible, the paper; he thinks it might have been the stands in need of no such defence; had the first and second pages of the paper, but I was conductors of this prosecution observed the then so much in liquor he did not understand same degrec of moderation, you would never what I said; and after having read part of have seen brought forward in this court an the paper, he says, he asked the favour I indictment loaded with bitter invective, evi- would lend it him till next day, with permis. dently calculated, upon the spur of the occa sion to read it to a few of his friends :-and sion, to inflame the minds of the jury, by this, he says, is the same paper now produced making the paper, of which I am charged as in court. the author and publisher, speak a language Now, were all that this witness has said foreign to itself. But I hope, from the can- true, I humbly presume,-that no wicked dedour and integrity of an English jury, I shall sign-no seditious purpose-no intention to have nothing to lear, from either the insinua- disseminate doctrines hostile to the constitutions or artifice of the advocate for the prose- tion, which are the very essence of the crime cution; whatever pains those who conducted with which I am charged, can be drawn from it may have taken to blacken my character, this man's evidence, nor from any circumwhich, thank God! after six years residence, stance of such an accidental interview. Were stands as yet unimpeached in the neighbour- it proved that I had wrote any paper from hood in which my family still reside; and I malice prepense-had used every endeavour may with safety appeal to any magistrate to publish it-and for that purpose, had aphere present, it, during that period, I have pointed this witness to meet me at the house been accused of one single act other than that of Mr. Loggie or any where else; and then, for which I am now upon my trial.
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 would be justified in your own consciences, of February—the delivery of it to J. Ridley, as well as in the eyes of the world, in finding together with the falsity, and the wicked and a verdict against me. But, even according
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 prors, 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 absevı; 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 sa 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, admy part to publish this paper-no urging of duced to establish the fact, I contend, is dethis 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 to bris, according to this witness, was done at his home the fact to nie, in proof of the allezza 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 publishdegree 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 pube 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 serjeint 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 pre this 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. Ridles, 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 not 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 hovering 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 ihc 18th. It might have tained in the paragraph or paragraphs, then been a paper of a quite different nature I then said to have been read. For if what 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 sedithe 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. 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.
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 racter affixed to the paper shows, that it never must contend, that there has been no legal was intended it should be taken in a serious proof before this Court, that I had delivered point of view. It must be allowed, that even ihis, or any other paper, to J. Ridley on the the productions, or rather amusements of a morning of the 17th of February; for the leisure hour, could have been no longer innobare, unsupported assertion of J. Ridley in cent, after, by misfortune or otherwise, they the present case is totally irrelevant, for the should have fallen into the hands of a Richereasons already mentioned.
lieu or a Mazarine. But the fatal effects of A libel is justly termed the least definable, their arbitrary measures, the sole cause of the and the most ambiguous of all misdemeanors present disturbances, which still continue to Our best judges and lawyers have been, and deluge that unhappy country with blood, ought still are, divided upon the subject; which to be a caution to the subjects of other princes gave cardinal Mazarine, prime minister to to beware of their footsteps. Though vexaLouis 14th of France, to boast, “Thatif he had tious and cruel prosecutions may sometimes, but two lines of any man's writing, he could though seldom, meet with the plaudit of the cut off his head.”. So dangerous a thing it is moment, allow me to say, the very names of to the liberties of a free people to encourage the prosecutors have uniformly been handed prosecutions for libels, that, I am persuaded, down to posterity as infamous. no gentleman here present, would ever wish As to the paper being charged as a libel to see himself or his countryman reduced to upon the constitution, lord Coke says, “ That such a deplorable situation; therefore it has there can be no libel, where no person is reoften been attempted to wrest all such trials Aected upon or scandalized.” Now I do not out of the hands of English juries. The nu. find that any person is so much as mentioned merous and various prosecutions, on pretence throughout the whole paper
before the Court. of libels, during the reigns of the Stuarts, gave The whole language of the indictment in this lord Sommers occasion of writing his valuable particular, is foreign to the explanation lord tract, intituled, " Security of Englishmen's Bacon would have put upon the words of a Lives.”. Wherein his lordship says, page 30, supposed libel: his lordship says, “ That “ Could we call ourselves any longer freemen, when any word or sentence will bear two when neither the liberty of free writing or senses, one in which they are actionable, and free speech, about every body's concern, another in which they are not, they are to be about the management of public money, pub- taken in the sense in which they are not aclic law, and public affairs, was permitted, but tionable."-See Bacon's Abridgment, vol. 6, a padlock was put, both upon the mouth and p. 233, 5th edition. the press as to these matters, and every body The jury cannot but be sensible how far was afraid to speak or write, what every the managers of the prosecution have deviated body, however, could not help thinking ?" from so salutary a rule, as well as from the His lordship was sensible, that the liberty of spirit and principle of English jurisprudence; the press was so inseparably connected with which by no means authorizes the overstrainthe liberty of the subject, that every attempt ing of penal laws, and would rather that to abridge the one, must necessarily endan- twenty guilty persons should escape, through ger the other. The author of a tract, inti- default of justice, than one innocent person tuled, “ An Inquiry into the Doctrines lately should suffer.t. It is the inestimable, it is the published concerning Libels,” published in inviolable privilege of Englishmen, that in all the year 1764, shows, that it is to such writ cases they are to be tried by a jury of their ings as have been prosecuted for libels, we peers, wbich cannot do wrong to their felloware at present indebied for our civil and reli: subjects, nor deprive them of any of their gious liberties; he says, page 33, “ I am fully properties or privileges to-day, by an unjust convinced, that were it not for such writings verdict, which may not be supposed to affect as have been prosecuted by attorney-generals themselves to-morrow. Now I affirm, that for libels, we should never have had a revo- unless it can be proved, which I contend it lution, nor his present majesty a regal crown, has not been, that I had wrote this paper in nor should we now enjoy a protestant reli- a certain county, and afterwards published it gion, or one jot of civil liberty.” Montes- for the purpose of exciting individuals to requieu, in his Spirit of Laws, says, “Were the bellion against the national will, from an evil liberty of the press permitted, even in the and seditious mind, you cannot convict me despotic states of Asia, there would be the of a libel upon this indictment. dawn of liberty."
It is not that I am concerned to defend the * The name of lord Bacon is here introduced merits of the paper in question; which, were erroneously, it deprived of the glossary afforded by the + See Vol. VII, p. 1529, note.