Page images
PDF
EPUB

himself, and to refute it; and so has bad recourse There was no proof, only presumption, for sayto the only instrument which is left in the ing it came from their hands. It was such a hands of the Attorney General, the power of petition, arraigning the conduct, and explaining preferring an information, in order to involve, the evil tendency of the proclamation, that it in criminal guilt, the author of this paper, was by an honest jury tbought a fair, a legal, whom he found he could not refute by all his and a constitutional petition; and they found, as vain attempts. Gentlemen, it has been the ob- they had a right to do, their reverend lordships servation of all ages, that when a hot, a weak, not guilty, after a long deliberation; and I and inexperienced mipister happens to be at shall sit down in perfect hopes and confidence tacked, his constant refuge is under the you will find this defendant not guilty also. wing of majesty; and that he screens bimself bebiod thai throne, which, he is in hopes, Sol. Gen.* Please your lordship, and you the subject dares not approach; and, you will gentlemen of the jury, i hope you will give me find, that the calm, the able and experienced leave to say a word or two upon this defence statesman, treats the attacks upon bis measures, that has been made. There bave been some or upon his character, with the contempt it de motions of blame upon my conduct, which bas serves, if it be true. Gentlemen, whether the been for some purposes so drawn into the ques. subjects of this paper be or be not true, I tion, that if 1, in the situation in which I bave will observe to you, that the drawer of the in- stood, should remain silent upon that subject, I formation, that the exhibitor of it to you, the sbould be thought perhaps as well to betray Attorney General, bas not pretended, in any myself in the business, as the principles of law part of it, to say it is false; that you will find, upon which I stand in this prosecution, though through the whole tenor of this information. I do not think it of exceeding great conseWby then, gentlemen, if this be the nature of quence to the issue of this cause, whetber those the question, and if you bave the power over priociples be actually settled ope way or the it, it is for you, and you only, to determine, other, because there are no points of law upon whether this paper deserves all the branding this subject, ibat in my mind require particular epithets with which it is loaded; whether the strength of argument or great abstruseness of substantial allegations drawn from it are true; reasoning, in order to come at them. They lie which, upon your oaths, you must find, if you open and upon a level to common understandfind the defendant guilty—that he has at-ing, to that obvious moral observation of all tempted to draw the subjects from their sove- mankind, do no wrong to another; but you are reign, and to excite them to an unnatural ipsur-desired to understand, the justice of this cause rection against their prince: that is, not by has been, in fact, entangled in the former; and words of course, not by adjectives, but it is in that it is necessary for you to go through all substantives, to be found upon oath by you, that is called the inducement of the informaif you are of opinion he is guilty. I should tion; to find the party guilty according to the pot stand up for or support a traitorous pur- extent of every epithet: where is that law to be pose; but, it is not expected of his majesty, to found ? defend the weak and misguided minister, whose Serj. Glynn. I must beg leave to interrupt conduct is his own, with regard to the public; you, it was the substantial proois, not of the and, whenever that is sullied, be is liable to be epithets. told of his faults. And if you should be of Sol. Gen. It is a matter of no kind of conseopinion, that this is a free and bold discussion quence to this business, whether the gentlemen of the measures of a misguided minister, and spoke it expressly in tbe extent I really underthat this was an information, which the author stood them to speak, or whether they left it to of the paper meant to convey to tbose who had be collected and inferred to extend farther by power, be it lodged where it may, and might construction, than they really ventured ; that possibly correct the errors of a misguided leader, ) is of no consequence to this business. All I and inform a conscientious good king of it;' meant was to introduce that idea. I should then you will view it in the way, which I be bave taken the freedom to state, as a proposifore gave reason for, and I hope, find a ver- tion of law ; that is to say, tbe substantial 'alledict for the defendant of Not Guilty. It has gations; let it be worded by epithet, or not, been always the language, the king bim- the accusation is of the part the defendant has self cannot be affected; that no man raises a published in writing or printing, concerning the personal invective against him; that attempt, 1 character and person of another, which is inbelieve, was hardly ever made, and yet you jurious to his person and character; and that will find, 1 dare say, from your memory of his. The offence is considerably enhanced, when tory, there have been instances, where several applied to the person of magistrates, and par. applications have been made to ile throne, face ticularly to the bighest magistrates whatsoever. to face, by the parties themselves; as was the That is the ground which I go upon; and case of the learned Bishops* who presented a petition to the king, arraigning the conduct so * Concerning the right in crown prosecu. far of those that advise'l, and they expressed tions to a reply on the part of the crown though the evil tendency of a proclamation of his own. no witness have been examined on the other

side, see Mr. Horne's Case, p. 651 of this * See vol. 12, p. 183.

volume,

though I did understand the doctrine of ano. person of the king bimself, is be to wait till a ther effect stated in the outset, I am well con- grand jury finds it such attack, and presents tent if we are agreed in law, and will proceed him what is his office ? and is he not to interupon it just in the manner in which I think it pose upon sucb subjects as this, where it is his tands. I did understand, when the learned duty ? and, gentlemen, these are the grounds gentleman spake first of it, when be entered upon which it is to be determined by you. To into a defence of the paper, and embarked in it, speak properly of the gentleman that spoke that it was upon the same line, and same no- first, they are not his grounds; though the tion of law I have gone upon. The learned second, he has endeavoured to mislead

you gentleman who spoke second, thought proper upon the subject, by telling you, that in bis to go a little wider, and give a more general opinion, this is not a sibel ; bui be bas withal discussion than my learned friend who spoke given you bis reason why be offers to argue it first; and he thought it necessary to tell you, is no libel, because he says, it does not apply that this information came under no sanction, to the person of the king. Now I agree perno kind of authority whatsoever. I refer to fectly, that as far as this information goes, it your own memory, gentlemen, wbether I re- charges, that this libel does affect the person of Jied in the opening of this cause at all upon the king; and if he bas made out to your sathe authority under which this information is tisfaction ibat no part of the libel does so a

affect filed; not the least upon earth; did not I? him, then that part of the charge will fall to and yet at the same time, if that should come the ground, as well as that part that affects the to be called in question, I am to inform you it great officers of state. If tbe defendant bas is filed by an officer of the crown, and whom made out there are no passages that apply to the constitution of this country bas, in all ages, those persons, then he is discharged from ibat intrusted to his duty and his knowledge, a dis part of the information ; so, with regard to cretionary power of filing these informations; that part affecting the House of Coinmops, if and the very statute alluded to by the gentle he bas made out that the House of Commons men, was after the Revolution, and at a time are not directly and personally reviled anıt taxed when the constitution was well considered, and with the grossest corruption, even with being the liberty of the subject supposed to be esta- bought by the ministry; if he has made out blished. At that time, and for the sake of the that proposition, then ibat will fall to the constitution, under which we live now, it was ground. I do not mean, (because you baro expressed to be in that officer of the crown the paper before you,) to go over those pasto file informations for the sake of the preser. sages, at the outset of which it appears, the, vation of public order and peace. This is the person of the king has been directly meant, law of the country firmly settled at the time of though some have been taken up, and others the Revolution; and yet now, when the law omitted, by my learned friend in the defence. comes to be put in execution, juries are enter. I will contine myself to those that have been tained with an idea of the oppressive qualities taken up. He tells you, there is a great acexisting in that law, which the wisdom of ages, knowledgment of the royal virtues.

What a and the best correction possible, applied to that, wretched misery is that in the obvious sense of have established what it is that officer is en- tbose that are to determine upon it. If be does trusted with, a matter of duty and honour not acknowledge those royal virtues, be taxes ibe to file informations, which in his judgment and king with those that are directly opposite to discretion, do not call for the extraordinary in- those qualities, and the taxing of them, I will terposition of his office. Whenever they do, it point out to you immediately. In the first is his duty to file them, unless something bad place, my learned friend says, what is said of been said to impeach his proceedings in that the king, is but the ordinary accident of part of the execution of bis duty. But I can thrones, and the most active of kings bave, say, myself, it was filed by an officer of great in some part of their lives, suffered in the ada judgment, and upimpeached bopour; and it ministration of government. Aod therefore it was his opinion, and it was accordingly done, might be as well said of all kings whatsoever, or not to proceed by indictment, but information at least the greatest number of kings, and no in the court of King's-bench. The Court barm could come from the zeal that is expresswould not have beard a motion at the instance ed to the present king. Observe the language of the Attorney General to file that wbich is of the paper itself. “ It is the misfortune of bis duty to file. The very circumstance of your life, and the cause of your reproach and his being to file it, would have prevented the distress. Is this the language that may be Court from hearing the motion; they would said of all kings? and his being unacquainted bave called to bim to do his duty in the course with the language of truth. This is only dropof information. And is the Attorney General, ping ideas concerning the application to the when he plainly sees it with the same eyes king, and very far from fact; and therefore the rest of mankind have seen, and the same the officers of the crown, are they wbo want view in wbich they have talked of it, wben be to make that a libel upon the king, that was no sees a direct malignant attack made upon the libel. Were it only about in coffee-bouses,

that the king was unacquainted with the lan* See the Case of Rex o. Phillips, cited p. guage of truth, and constantly erring, and that 678, of this volume.

he had not discovered his prejudices; were

that laid about opon tables in taveros and cof- ! to those that apply for justice, there consequentfee-houses, nobody understood it to be a libel. ly is neither liberty nor property, nor reputaBut it becomes a libel, when the officers of the tion, nor any thing which this country bas crown, for the vindication of the character of hitherto thought worth protection, and the laws the king, thought proper to bring it before a would not be able to protect them. I protest court to be justified there. With regard to the to God, it appears to me in a reasoning way, Jord lieutenant of Ireland, my learned friend too strange a proposition, to say liberty is coosays, there is no application to the king. cerned in protecting a man in writing injuriously

Čertainly there is no application to the king and opprobriously against the character of a whatsoever.' Now let us see a little whether man, which is the same as if it was concerned there is not.

in protecting a man in robbing upon the bigb“The people of Ireland give you every day ways. Gentlemen, you may as well have the fresh marks of their resentment;" so that it is question put for your discussion, whether you introduced to the king: “ They despise the mi- | would have ten or fifteen guineas privately serable governor you have sent them, because stolen from your person, by which the party be is a creature of lord Bute.” This is the would be liable to be condemned, or whether abuse npon Jord Townshend; for what reason you would have your name hung out to tbe is best known to the author himself; but if they public, as a man wbo is disgraceful, disbonest, are masters of men's characters to treat them and unworthy of any post you held. Whicla just as they please, there is an end of all law would you choose ? And in the name of comand justice. But when it concerns the person mon sense, which can any man expect you of a king, it is not from the natural ideas they should choose? And how can you find your are so ready to confound the person of a king verdict when you are desired to withbold, cogin the person of his representative, as be states trary to all evidence, and every necessary the people of Ireland, every day giving fresh conclusion, that justice which those conclumarks of their resentment, because they under-sions do call for? You are not desired to bestand there is no difference between the original lieve they are not published by the defendant; of a king, and their representative. It is not that is given up here; you are desired to be owing to a confusion of their ideas they do in lieve, that they do not talk of the king in the that manner confound it. What does be say in paper. That argument is not what I exthe next part after Ireland ? He then proceeds pected to have been proved. You are desired to state America, of which he first of all says, io think it would be a derogation from your “they were ready enough to distinguish between authority, should you be obliged to find, acthe king and his ministers, and to throw the cording to the evidence. To be sure you are fault upon them;" and that I suppose is not to bound, if we could not make out the truth that be applied to the king. But afterwards he belongs to the charge, which, if we do, without says, " the decisive, personal part you took you can find reasons to deny that very truth against them ;"—is this charging the ministry ? which your reasons and consciences cannot " that decisive, personal part you took against resist; to be sure, that is one of the inferior sithem, bas effectually banished that first dis- tuations of a jury. But that is an inferiority tinction from their minds; they consider you which don't belong to your situations alone. as united with your servants against America, Judges are likewise sworn to pronounce ac. they knowing bow to distinguish the sovereign cording to law; and that is all the constraint and a venal parliament on one side, from the upon the office you now hold ; and if you find real sentiments of the English people on the the facts are as I stated in the outset, notwithother.” Has this no application to the king? It standing what bas been said in the defence, it certainly has. I have stated these few in- will be too' plain an absurdity to say he is not stances, merely because they were those that guilty. have been taken op, in order to shew they have no application to the king. Gentlemen, I have Lord Mansfield. Gentlemen of the jury, il stated them to you, imagining we are so far the direction that I am going to give you, as to upon a just ground, and ihat you can imagine the object of your consideration, and the rule no other but that the king is as plainly distin- and ground upon which your verdict ought to guished from every body else, as any thing in be founded, according to the law and constituthe world can be distinguished.

tion of this kingdom, and that oath that is They are right in saying, that if you find it taken by each of you; I say, if that direction is meant so, what avails all that has been said. should be mistaken, I have this comfort in my But they go beyond that; and very properly own mind, that it will not be fipal, but upon say you are the refuge of liberty. You are application to the Court for a mis-direction, it 50. You are the refuge of those who find can be set right. The direction I am going to themselves wronged contrary to the laws of give you, is, with a full conviction and confithis country, and apply to the laws of this dence, that it is the language of the law. This country for redress. And if you, who are the is an information that is brought against the refuge of liberty, in that sense, should either defendant for printing this leiter, wbich you by such delusion, or influence of prejudice and have heard read, of the tenor set forth, and of warmth in favour of such strange ideas, endea- the meaning put upon those parts of it, voured to be put upon them, deny that justice wbich are blanks in the original, by the in.

+

formation, and concerning the persons charg- bare act of printing and publishing. If he ed by the information, to be the persons prints that which is unlawful, it follows in concerning whom it was wrote. This is the course, whetber it is with a degree of greater charge. Now the question for you to try or less malignity. For there is no one act, that upon the evidence, 'is, whether the defen- may be attended with a greater variety of cirdant did print or publish, or both, a paper of cumstances (almost infinite) than the manner the tenor, and of the meaning, so charged by in which a man might print and publish; it the information ? As to its being of the tenor, might be from the lowest to the highest dethe paper has been read to you, and if it gree of guilt, even to a very venial degree of had not been of the tenor, there would have guilt. Now that is not established by your been an objection made during the course verdict, all those epithets being a mere form of the reading ; and there would have been in informations, and they are inferences of law, an end of the information, if the charges which are drawn upon the printing and pubwere wrong, for they could not have gone lishing a libel, if it comes out upon the face of on ; therefore there is no objection as to the it to be a libel. It is very true, I am used to tenor.

speeches made to juries, to captivate them, and The next thing is the meaning; and the carry them away from the poiut of enquiry. meaning is what is put upon it by the infor- Mr. Serjeant Glyon did admit, the inducement mation,

in those places where there are blauks was not to be proved; not so much proved, as in the original, as k dash g for king, m dash y is set forth, as inalice of forethought, in cases for majesiy, and so on, as you heard it read. of murder, or the instigation of the devil, and As to that, there has been no particular ob- yet the form is kept up. As to the other epijection made by the counsel, that in any one ibets, he did admit of them, as his candor made instance the blank is ill filled up. If that could him do. After arguing upon the epithets of have been made, their ingenuity would bave seditious and malicious, he did say 'at last, I found it out. If you say they are not well do not see it is necessary to give proof of the filled, and the paper is not of the meaning set whole; therefore that is not the fact to be found forth in the information, then you must, to be by your verdict, that is inference of law; and sure, acquit him. But, if it is of the tenor and many instances shew when the jury have found meaning, set out in the information, the next bim guilty, before the defendant comes up for consideration is, whether be did print and pub- judgment, be is at liberty to extenuate bis lish it? Now, as to that, the evidence stands crime, and even his own affidavit will do it; uucontradicted, and without any observations. and if the fact had been found by the verdict, It is proved to be bought of his servant, at his it is impossible that can ever be controverted, house: that dropt from the counsel without nor ever further looked into. These are the any observation. If you by your verdict find grounds, therefore, which I leave to you for the defendant not guilty, the fact established your consideration. If you are not satisfied by that verdict, is, he did not publish a paperihat the paper proved, is of the meaning put of that meaning ; that fact is established, and upon it by the information, where the blanks there is an end of the prosecution. You are to are filled up, and the persons concerning wbom try that fact, because your verdict establishes it is spoken of, you must acquit the defendant. that fact, that he did not publish it. If you if you doubt of the evidence, as to its being find that, according to your judgment, your proper evidence, you must acquit the defendant. verdict is final; and if you find it otherwise, it If you are satisfied, as to both those, that is is between God and your consciences, for that the matter to be established ; by both those, is the basis upon which all verdicts ought to be and according to right, you ought to find it. fouoded ; then the fact finally established by And, indeed, if you were for having the power your verdict, if you find him guilty, is, that he of pronouncing a verdiet of 'not guilty, as to printed and published a paper, of the tenor, and the fact; to be sure the jury, in every cause; of the meaning, set forth in the information; may make an end of the question, whether they that is the only fact finally established by your bave pot a right to find that verdict.* If you verdict; and whatever fact is finally established, take upon you to determine the law, you must, never can be controverted, in any shape what for tbc sake of your own consciences, be sure soever. But you do not, by that verdict, give to determine according to law, and you must an opinion, or establish whether it is or not, be sure that the law is,t that such a paper may lawful to print or publish a paper, of the tenor be printed and published, of the tenor you find and meaning in the information; for supposing it; the consequence of which is very obvious the defendant is found guilty, and the paper is to be seen upon this occasion. If the law was such a paper, as by the law of the land may be to be determined in every particular cause, printed and published, the defendant has a right what a miserable condition would this country to have judgment respited, and to have it car. be in with regard to that part of it, as it is said ried to the highest court of judicature. There there cannot be a greater curse than uncertainty is nothing upon the fact : if in point of law it is innocent, it would be an ivrocent tbing, ap- * See vol. 6, pp. 1013, et seq. pearing so upon the record. Neither is it found † As to tbis method of address to a jury in established upon your verdict, that he did it such a case, see · Another Letter to Nr. Ale with any degree of malignity or guilt in the mon,' p. 58,

in the law; for one jury in Middlesex find one at bis parlour door, in the passage, and the way, and a jory in London another way. A foreroan baving pronounced their verdict Not jury in Middlesex has found a verdict, and Guilty, bis lordship went away without saying convicted one person * for the publication of a word. Bat there being a vast concourse of this same paper, but you are not bound by that people in the square, who had followed tbe

If juries were to find according to the different jury from Guildhall, they, as soon as the verimpressions the different points of law have dict was known, testitied their joy, by the upon them, there might be no law at all upon loudest huzzas. the subject. You will consider of it, and I will repeat to you again, you must be satisfied as to the meanings laid down in the information, Several inaccuracies in the preceding reand concerning the persons, and you must be ports of the cases of Almon and Miller I have satisfied with regard to the publication; if you not ventured to alter. are satisfied you will find him guilty; if not As to the proceeding for an attachment you will find him not guilty.f

against Almon in respect of tbe publication of

the Letter concerning Libels, Warrants, SeiThe Trial began about nine o'clock in the zure of Papers,' &c. see vol. 19, p. 1082; and morning, and was finished about twelve. The Lord Chief Justice Wilmot's • Notes of Opijury retired into a private room, and continued nions and Judgments' as there cited. locked up, till half an hour past seven in the Concerning the pou-examination of Miller, eveniog, at which time they were agreed in p. 835, see what Mr. Duoning said in the their verdict; and the Court being broke up, House of Commons, reported 16 New Parl. they carried it to lord Mansfield, at his house Hist. p. 1279. in Bloomsbury-square. Ais lordship met them Of ihe conversation which passed between

Mr. Mackworth and lord Mansfield, p. 838, See Almon's Case, p. 868, of this volume. see Mr. Mackworth's account, 16 New Parl. + But now see stat. 32 G. 3, c. 60.

Hist. 1149, 1189.

555. The Case of HENRY SAMPSON WOODFALL, on an Information

filed by the Attorney General for publishing Junius's Letter to the King: 10 George III. A. D. 1770.* [London Museum.] June 13.

tion filed by Mr. Attorney General ex officio,

against Henry Sampson Woodfall, for printing This day came on at Guildhall, before lord and publishing a letter signed Jupius, in the chief justice Mansfield, the trial of an informa- Public Advertiser, of the 19ih of Dec. 1769.

The report here given, is the fullest wbich he says, “I am now meditatiog a capital, and, I have seen of this Trial. I bave therefore in- I hope, a final piece.' It was for this proserted it, notwithstanding the flippancy and duction that the prioter was prosecuted, and partiality of its manner. Io Mr. G. Woodfall's obtained the celebrated verdict of guilty of recently published edition of Junius's Letters printing and publishing only,' the consequence (in which edition is exbibited various illustra- of which, as already observed in note to vol. 1, tion of that work, and consequently of the p. 29, was, that two distinct motions were history of these prosecutions) is inserted in a made in court; one by the counsel for the denote to the author's preface, a very abridged tendant in arrest of judgment, grounded on its account of this Trial, from which I shall print ambiguity, and another by the counsel for the below the report of lord Mansfield's charge to crown, to compel the defendant to shew cause

why the verdict should not be entered up acThe following passage from a note to vol. 2: argued, the court of King's-bench ultimately

cording to the legal import. The case being p. 62, of Mr. Woodfall's publication, is not decided, that a new trial should be granteil

. impertinent in this place:

This accordingly commenced, when the Ais The address to the king through the me torney General observing to the Chief Justice, dium of this Letter, made a very great im- that he had not the origioal newspaper by pression upon the public mind at the moment which he could prove the publication; his of its appearance, and though 500 copies of the lordsbip laconically replied, "That's not my Public Advertiser were printed io addition to fault, Mr. Attorney :' and in this manner the usual numbers, not a single copy was to terminated the second trial. The fact is, that be procured in a few bours after its publica the foreman of the jury upon the first trial had tion. The author himself, indeed, seemed to pocketed the paper, upon its being banded 10 entertain a very favourable opinion of it; as in ihe jury box for inspection, and had afterwards Private Letter, No. 15, speaking of this Letter, destroyed it. The expence the defendaot was

the jury.

« PreviousContinue »