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holders, and the leaders of parties; and these each other's nonsense, and suppose the whole are the men that have been the active leaders nation talks the same gibberish; let such of addresses. But it is a bad constitution for men cry up the House of Orange or the at least ninety-nine parts of the nation out of House of Brunswick, if they please.” Now, one hundred; and this truth is every day would it not have been decent in this author making its way.” Now, in thus addressing to have stated to you what the pretensions of those who are not capable of comparing go- these Houses were ? vernment with government, and forming a Gentlemen of the Jury, look at that part of proper judgment, consider the pernicious con- the pamphlet which recommends the convensequences that may arise. When the affairs tion. "'I wish,” says the author, “ that Mr. of a neighbouring nation were referred to, it Grey, since he has embarked in the business, would have been fair to have observed, that would take the whole of it into consideration. this author has not told his readers of the ad- He would see that the only motion he could vantages which had accrued to this coumtry consistently make, would be, that parliament ever since the establishment of monarchy in should recommend a convention." " I know I its true principles, at the time of the Revolu- live in a country, that asserts, by an act of tion; stating the subject rationally, dis parliament, that the King, Lords, and Comcretely, and deliberately.

mons, constitute the government of the counGentlemen, my learned friend talks a great | try. Why, gentlemen, will it not require a deal about America; and here I must observe, great deal of discussion to determine, wheMr. Paine, a subject of America, chose to ther, in the way that gentleman states it, it prefer the government of that country; if he is not high treason? chose to prefer it to that of Great Britain, on Gentlemen, I am not stating this, to press account of the greater expense of that of Great against this defendant. . God forbid! but I Britain, which in truth had paid for the go- mean to justify, at least, the propriety of opvernment of America, would it not have been posing those who adopt this species of confair to have stated that fairly? It is one thing duct. It rests with you, gentlemen, to deterto establish principles, by which the govern- mine, whether you will aHow works of this ment of a country may be accelerated; and kind to be circulated. Observe how artfully another thing to excite uneasiness in a coum- he requests a very respectable gentleman, a try, by the means of saying what he knows member of the House of Commons, I mean not to be true. Should he not have told his Mr. Grey; and he puts his name in italics readers, that in a country, like America, too. I state it before you, and the public, where both the country and population differ that this is a high crime in this country: from that of this country, it is impossible to the work is now before you, in which the say that the same system should hold good, constitution of the country is calumniated; with respect to the government of the two and not only the offices, but all the magiscountries.

trates of the country. Gentlemen, the next passage in the book Now, gentlemen, with respeet to the prois, “ it has ever been the craft of courtiers, priety of the prosecution, as against the prefor the purpose of keeping up an expensive sent defendant, I have said elsewhere, that in and enormous civil list, and a number of an- my opinion, it may be more proper that the tiquated places and offices, at the public ex- publisher of the work should be prosecuted pense, to be continually hanging England than the author; on this plain principle, upon some individual or other, called a king, that the man who mixes the poison, and though the man might not have capacity does not distribute it, is less guilty than he enough for a parish constable.” Gentlemen, who lends his hand to the distribution of it. a man who wishes for hereditary succession, Gentlemen, the licentiousness of the press ought not so to express himself. Gentlemen, needs to be restrained; for when the author what does he say he says,—“ an individual, of the Second Part of the Rights of Man was called a king, though the man might not have prosecuted, the booksellers thought it proper

la capacity to be a parish constable.” Gentle and safe to re-publish it; and that it was sufmen, am I talking to Englishmen or am I ficient to leave out some offensive parts, not? If there is a parish constable here, I marked in the information, and substitute may tell him his duty is to protect the liberty others, equally offensive in the room of them; of the subject; and while he does so, he will and to say, that let the nature of the work bé have the protection of the great magistrate, what it will, the smallness of the gain is to whose representative in some respect he is be an excuse for its publication, because, if a If I had treated the constable in this way, 1 man, knowing the actual mischief resulting should have derogated from that manly and from the publication of these books, chooses, proper conduct which is due to every public for two-pence, to run the risk of publishing a officer in every public capacity.

work, the purport of which is to make wives Gentlemen, he next says, “ the folly of and children detested of husbands and fathers, these men, and the absurdity is appearing--and is he not to be brought to justice, because more and more every day; and still those he happens to have a wife and children? I men continue to act, as if no alteration in the know what you would have said to the officer public opinion had taken place; they hear of the crowa, if he had negligently permitted VOL. XXII.

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the continuance of such publications: I know There is another weightier reason than you would have said, that if a guillotine was this, that this prosecution, which depends to be found in this country, his head ought to upon a few short facts, does not appear to me be the first that should be severed. Gentle to want a great deal of detail of argumeut or men, the defendant published this book, a great deal of artificial reasoning either to which, by its title, imported either a decent or substantiate the guilt or to substantiate the indecent account of the conduct of the first innocence of the party before you. The magistrate of the country; the title of the cause is either plain to be decided upon very very same book staring bim in the face, and short topics, or I confess I know nothing of telling him it was written by Mr. Paine, who the cause. was at the same time under a prosecution for If I were master of eloquence I would not a libel on the government of this kingdom. make the decision of this cause a stage upon

Gentlemen, you must perceive that if this which I would display that eloquence. Those can be the course, the thing is easily done; things which are very proper for advocates to and though a magistrate of this city, -- who I do, become very improper for the judge, who am sure would say I acted very basely by has nothing to do, but to state to the jury the him, if I ventured to flatter him,-he being to short grounds upon which the cause ought to execute his duty as a magistrate, what does proceed. he do? He is informed, that the defendant I shall not travel into the affairs of France vended these seditious publications: this in- and America, or any of the various topics formation came by an anonymous hand, I that have, at considerable length, undoubtedly grant; and what does he do? Why, he sent not improperly, been talked about this day; for the defendant, and told him, he must not but I shall make one or two observations publish the work in question; but he, the not exactly to the point of this cause. defendant, neglecting ihis admonition, about I dare say it was not intended, but it did a fortnight afterwards this person, the witness rather appear that the chief magistrate of this in the cause, purchased the book; for you" city was a little sneered at for what he has never can have a conviction without buying a done. He was called to the office by the book. He used some art ;-why, certainly, unanimous voices of the citizens, the situation some art is generally employed in these cases. he holds is the first officer of the first city in Gentlemen, have you a doubt that this de- the world in point of commerce and riches fendant had been persuaded, by somebody or and every thing that can constitute the nagother, to dispose of his stock after this admo- nificence of a city. He is not a judicial ottinition of the lord mayor?

cer it is said. He is a judicial officer, Gentlemen of the Jury, God Almighty for and a municipal officer too, and from these bid, that I should press this matter against combined characters there are duties incumthe defendant farther than sound justice and bent upon him, which by all the ties that can equity should require; I know the constitu- bind a man to the discharge of duty, he is tion of this country, and all that is dear to all bound to discharge. It stands at the head of of us depends on the firmness, integrity, and his duties, next after protecting the religion honesty, with which juries will decide on the which binds us to God, to govern that civil nature of the conduct of persons charged with policy which binds government together, offences.

and prevents us from being in a state of anarGentlemen, with regard to myself, I have chy and confusion. What could he do other only to say, that I know I want pardon for my than he has done? He would have retired own errors and inaccuracies, as well in this as from his station, if, intelligence being given in all my public transactions : and it, when him, he had not used all due diligence to see you consider the benign principle of the laws whether crimes had been committed, and to of England, which have been so vilified in this he accessary as far as he could to the support publication; if you feel it is your duty to ac- of government, and the detection of those quit the defendant, you will discharge that crimes, and putting them in the way of produty; on the other hand, you will recollect secution, and of being brought finally where that these principles tend to the deprivation this person is brought,- before a jury. to yourselves and your families, of both Therefore, I would state that; making no liberty and property.

farther remarks upon it, because every man SUMMING UP.

living who has adverted to his situation, has

long ago not only acquitted him, but approved Lord Kenyon.—Gentlemen of the jury; of his conduct. this cause has consumed a considerable por- Something too has been said respecting the tion of your time, and I shall keep my word nature of this prosecution, that it ought not with you when I tell you I will not add many to have been commenced, because this man minutes to that time. I have several weighty had been guilty of the offence in common reasons for so doing. In the first place, this with thousands of his fellow countrymen. is not the only business of this day, it is the Are all the thousand to be prosecuted, or is last day in which justice can be administered iniquity to go unpunished: by me in this place, and those civil causes of I have heard that it was the perfection of your fellow citizens that are not heard to day, the administration of criminal justice to take must stand over to a future period,

care that the punishment should come to few and the example to many; and surely there is no blame to be imputed to the executive government, when the offence was so disseminated, that a few, or that one only, for we treat of only one to day,-that the punishment being inflicted upon one person, the example might come to many.

Gentlemen, the book is before you; if you think it necessary to look through the whole before you give your verdict, that you will certainly do, because upon the whole contents of the book your judgment upon criminality or innocence is to be formed. If the parts which have been extracted from it have been unfairly garbled, and taking the whole context together, that does not belong to them which the information states, take the context, and if the context compels you to acquit the defendant, you must acquit him.

That it was purchased from the person who is now the defendant iu this cause has been proved and is not controverted. But you are asked, and very properly asked, not to convict him unless he had an intention to offend. To enter into the hearts of men belongs to him who can explore the human heart, it belongs to human judicatures to judge of the intention by the overt act of the person; and therefore if in all cases positive proof must be brought of evil intention, it would be proclaiming impunity for all offences where the intention goes to constitute the offence, which is almost all criminal cases whatever. It may occur to a man that death is a consummation devoutly to be wished for, and he may think it a laudable act to put an end to the lives of as many people as he can, because it is that consummation; and if a man indicted for murder were to tell you by his advocate, that this act was done from the purest intentions in the world to take the object out of the miseries of this world, and you were called upon not to convict unless you had positive evidence of the badness of the intention, I know not how crimes are to be punished.

In this case and in all others, we must refer to the act the party has done and ascribe that to the intention of doing good, of doing evil, or of doing neither good nor evil, to which of those motives it ought to be ascribed. You will, under the solemn obligation you have been so often reminded of, answer that question and want no advice from me.

The cause is all in your power, and in a power which does not take its rise from the act of parliament, but which arose from principles interwoven with our constitution, which juries before have exercised beyond all doubt. If you think the defendant is guilty of publishing that which trenches upon the government of the country, he will then be liable to punishment: on the other hand, if the man is innocent, he has a right to be acquitted by your verdict.

The Jury withdrew two hours and twenty minutes, and returned a verdict, GUILTY OF PUBLISHING. Lord Kenyon. The verdict should be GUILTY, OR NOT GUILTY. Juryman. We have considered the case, my lord, maturely, and this is the only ver dict we can give.

Lord Kenyon. I have no right to ask what are your doubts, gentlemen. If you have no doubts to state to me, I can have nothing to say to you voluntarily.

Juryman. We have canvassed the point as well as we could: we can find no other verdict.

Lord Kenyon. I do not know the meaning of the words "Guilty of Publishing."—I don't know in what that guilt consists. You are bound to try the issue; you are sworn to try it. -The country will expect a verdict from you,

The Jury withdrew again, and in about forty minutes returned with a verdict of GUILTY OF PUBLISHING THAT BOOK.

Lord Kenyon. Gentlemen, you should give some verdict-but if you persist, I must re cord it as it is.

Juryman, We have very maturely considered the case, my lord, since we went out of court; we cannot give any other verdict.

The verdict was then recorded, GUILTY OF PUBLISHING THE PAMPHLET IN QUESTION,

Of the proceedings which took place in consequence of the verdicts given in this and the preceding case, I have not discovered any printed account.-For the communication of the following particulars, I am indebted to that distinguished member of the profession, Mr. Gurney, who was, on both occasions, of counsel for the defendant.

In the beginning of Michaelmas Term, 1793, the attorney-general (now lord chancellor Eldon) moved the court of King's-bench for a rule to show cause why the verdict in this case should not be entered up according to its legal import*: a rule to show cause was granted, and the counsel for the defendant were instructed to show cause; but the argument did not take place, nor was the case publicly mentioned. The reason assigned for its not being brought on was the pendency of the case which had been reserved at the Old Bailey for the opinion of the twelve judges, and it was thought fit, that that should be argued first. As the defendant was out on bail, in that case, he never applied to have it argued; the crown did not apply, and it was not argued or decided. The case in the King's-bench has never been mentioned since.

*The same motion that was made in the case of Woodfall: ante, vol. xx. p. 908.

579. Proceedings on the Trial of an Indictment against WILLIA M WINTERBOTHAM,* for Seditious Words uttered in a Sermon, preached on November 5th, 1792; tried at Exeter, before the Hon. Sir Richard Perryn, one of the Barons of his Majesty's Court of Exchequer, and a Special Jury, on July 25th: 33 GEORGE III. A. D. 1793.†

Counsel for the Crown-Mr. Serjeant Rooke, in 1793, one of the Justices C. B.; Mr. Serjeant Lawrence, afterwards successively one of the Justices C. B., B. R., and C. B.; Mr. Morris, Mr. Fanshawe, Mr. Clapp.

Solicitors-Messrs. Elford and Foot, of Plymouth Dock.

Counsel for the Defendant--Mr. Gibbs, in 1813, Lord Chief Baron of the Exchequer, in 1814, Ch. Just. C. B.; Mr. East; Mr. Dampier, afterwards one of the Justices B. R. Solicitor--Mr. John Saunders, of Plymouth. JURY.

William Tucker, of Kilmington, Devon, F.
Richard Kingdon, of Holsworthy, ditto.
Richard Hawkins, of Dodbrook, ditto.
Charles Hayne, of Blackawton, ditto.
Samuel Walkey, of East Budleigh, ditto.
Thos. Cummings, of Bishops Teignton, do.
Charles Row, of Silferton, ditto.

J. Ing. Fortescue, of Buckland Filleigh, do.
Walker Palk, of Rattery, ditto.
Wm. Ponsford, of Drews-Teignton,do.esqrs.
TALESMEN,

Wm. Hallet, clothier, of Thorncombe, ditto.
Richard Ware, of Northawton, ditto.

Mr. Clapp. THIS is a prosecution against the defendant. Wm. Winterbotham, for that he maliciously and seditiously intending to disquiet, molest and disturb the peace and common tranquillity of our lord the king, and of this kingdom, and to traduce and vilify the happy constitution and government of this kingdom, and to bring the king and his government into hatred and contempt, and to excite the subjects of the king to sedition against his government, on the 5th day of November last, did preach, speak, and publish the following words, to wit:

abused and brought into disuse; and it particularly behoves me to speak of the present times,"-(meaning thereby that the said laws were in the present times abused and brought into disuse by his said majesty's government).

In the second Count-of and concerning a supposed revolution in the government of France, whereby the ancient monarchical government of the country was supposed to be subverted, and a republican government established in its place: and of and concerning the government of this kingdom; these seditious words following:

"I" (meaning the said Wm. Winterbotham) "highly approve of the revolution in France" (meaning the said revolution in the government of France), " and I" (meaning the said Wm. Winterbotham) “ do not doubt but that it has opened the eyes of the people of England," (meaning that the people of England saw there was a necessity for a similar revolution in the government of this kingdom).

In the third Count-of and concerning the laws and government of this kingdom, these seditious words following:

"Why are your streets and poor houses" (meaning the streets and poor houses of this kingdom) "crouded with poor" (meaning the poor of this kingdom)," and your gaols with thieves" (meaning crowded with thieves) "but because of the oppressive laws and taxes?" (meaning that the laws and statutes of this realm, and the taxes imposed on the subjects of this realm, thereby were oppressive). “I” (meaning the said Wm. Winterbotham)“ am astonished that you" (meaning the subjects of this kingdom)" are quiet and contented under these grievances, and do not stand forth in defence of your rights."

The fourth Count-similar to the third.

In the fifth Count-of and concerning the laws and government of this kingdom, these seditious words following:

In the first Count-of and concerning the revolution in the government of this kingdom, in the year of our Lord 1688, and the "You fancy you live under a mild governlaws of this kingdom then made, these sediment" (meaning the government of this kingtious words following:

"The laws" (meaning the laws of this kingdom) "made at that time" (meaning the time of the Revolution) "have been since

Published by the defendant, See the next Case,

dom)" and good laws," (meaning the laws of this kingdom), "but it is no such thing," (meaning the government of this kingdom was not mild, and the laws of this realm were not good).

In the sixth Count-of and concerning the national debt of this kingdom, and certain

monies lately paid and applied in reduction thereof by authority of parliament, these seditious words following:

"I" (meaning the said William Winterbotham) "speak boldly"—" I" (meaning the said William Winterbotham) "deny it" (meaning that any money had been applied in reduction of the national debt); " for it is no other than a person taking money out of one pocket, and putting it in the other" (meaning the other pocket).

The twelfth Count-similar to the second. The thirteenth Count-similar to the third, fourth, fifth, and tenth.

In the fourteenth Count-of and concerning the taxes imposed by the laws and statutes of this realm upon the subjects thereof, these seditious words following

"Under these grievances" (meaning the said taxes)" 'tis time for you" (meaning the subjects of this kingdom)" to stand forth in defence of your rights."

In the seventh Count-of and concerning the granting by the Commons of Great Bri- Mr. Serjeant Rooke. I stand forth authotain in parliament assembled of supplies to rized by government to prosecute the defenhis majesty for the public services of this nadant William Winterbotham, a dissenting tion, and the application of such supplies preacher, for having preached a seditious serwhen granted, these seditious words follow-mon.-Before such a jury as I am now ading:

dressing, it will scarcely be necessary for me "When there is a demand made to the to go into the subject of government, and I House of Commons," (meaning the Commons believe there will be little difference between of Great Britain in parliament assembled), me and the gentlemen concerned on the other "for a supply," (meaning a supply to our said side, upon that subject.-Without subordinalord the king, for the public service of this tion, there can be no government; and withnation, "they" (meaning the Commons of out government society cannot exist; and Great Britain in parliament assembled) "deny those who would produce anarchy, would wish it" (meaning deny granting the said supply) to put us in a worse condition than we should "at first" (meaning on the first demand of be in under the government of Turkey.—It the said supply), and on a second demand" has been laid down by divine authority, that (meaning a second demand of the said supply) there is no power but what is derived from "there are two thirds or three fourths" the Supreme Being-therefore to cry out (meaning two thirds or three fourths of the against the government where there is no ocsaid Commons of Great Britain in parliament casion, is a crime. And for a man living assembled)" will grant it" (meaning the said under mild and equal laws, to preach sedition supply); "and then they" (meaning the said and discontent, is blasphemy against the matwo thirds or three fourths of the said Com-jesty of Heaven.-Till of late, there has been mons of Great Britain in parliament assembled), "will share it" (meaning the said supply)," among them."

In the ninth Count-of and concerning the said late supposed revolution in the government of France, and of and concerning the subjects of this kingdom, these seditious words following

"We" (meaning the subjects of this kingdom), “have as much right to stand up as they did in France for our liberty" (meaning and intending it to be believed that the subjects of this kingdom ought to stand up to effect a revolution in the government of this kingdom similar to the late revolution in the government of France).

The tenth Count-similar to the third and fourth.

In the eleventh Count-of and concerning our said lord the king, these seditious words following:

"His majesty," (meaning our sovereign lord the now king) was placed upon the throne" (meaning the throne of this kingdom)" upon condition of keeping certain laws and rules; and if he" (meaning our said lord the king) "does not observe them" (meaning the said laws and rules), "he" (meaning our said lord the king)," has no more right to the throne" (meaning the throne of this kingdom), "than the Stuarts had" (meaning the family of the Stuarts heretofore kings of England).

no attempt to deny these principles; but in a neighbouring country, never remarkable for religion, there has been a new light sprung up. But if we look to that country we shall find nothing there to lead us to imitate them; we shall there see a desire of overturning all the old establishments under which we have lived so happily for a great number of years, and which till very lately were never thought about as subjects of investigation.

The success of the French had induced their friends in England to stand forth and avow their principles; and one gave encouragement to the other, till at last it spoke out little short of treason.—In all parts of the country. persons were trumpeting forth sedition, till government found it necessary to interfere.

The defendant Mr. Winterbotham, a dis senting teacher at Plymouth, thought proper on the 5th of November last to preach a ser mon of the most inflammatory nature.-You have heard the particular passages of what the witnesses which I shall call can remem ber of the sermon.-It is not to be expected that a person could carry off in his memory the whole sermon-it is most likely he would take notice of what was particularly grateful or particularly obnoxious;-and it is next to impossible if he paid attention, that a hearer should not collect the general tenor of the sermon.-With respect to the tendency of the words as laid in the indictment, if the wit

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