Page images

Tuesday, Nov. 20, 1770.

guilty.(a) But no question of that kind arose L. C. J. Mansfield delivered the Opinion of in this cause. Therefore I directed the jury to

consider whether all the inuendoes, and all the the Court:

applications to matter and persons, made by the This comes before the Court upon two rules : information, were, in their judgment, the true The first obtained by the defendant 10 stay meaning of the paper. If they thought otherthe entering up judgment on the verdict in wise, they should acquit the defendant; but if this cause. The second obtained by the At. I they agreed with the information, and believed torney General, that the verdict may be entered the evidence as to the publication, they should according to the legal import of the finding of find bim guilty. If the jury were obliged to the jury. The last rule must, from the nature of find wbether the paper was a libel, or whether it, be first discussed, because the ground of ar- it was a libel to such a degree as to deserve the gument upon the other cannot be setiled till epithets given it by the information, or to rethis is disposed of. Upon this rule it is neces. quire proof of the express intent of the desary to report the trial.

tendant in printing and publishing, (b) and of The prosecution is an information against its being inalicious to such a degree as to de. the defendant, for printing and publishing a serve the epithets given it by the informationlibel in the Public Advertiser, signed Junius. then this direction was wrong. The tenor of which is set out with proper aver- In support of it, I told then, as I have frona ments as to the meaning of the libel, the sub- indispensible duty beeu obliged to tell every ject matter, and the persons concerning which jury, upon every trial of this kind, to the fol and of whom it speaks, with inuendoes filling lowing effect: that whether the paper (meanup all the blanks and the usual epithets. ing as alleged by the information) was in law a

In support of the prosecution, they proved libel, was a question of law (c) upon the face by Nathaniel Crowder, that he bought the of the record : for after conviction, a defendant paper produced, and twelve more, from Col. may move in arrest of judgment, if the paper field, the defendant's publisher, in the defend- is not a libel. That all the epithets in the iuant's publishing-room, at the corner of Ivy- formation were formal inferences of law from lane. That he goes often there, has occasionally seen the printing-room, and has had papers in the (a) This seems to be somewhat obscure. printing-room. They read the paper produced, (b) I conceive that they might either reand the tenor agreed with the information. quire such proof of the publisher's intent, or

George Harris, register of pamphlets and collect it by interence from the mere fact of newspapers, proved, that the defendant by him- publication, as they should think fit; but that self and servants paid the duty for advertise certainly they ought to find it. ments in the Public Advertiser; that the defend- (c) To these words Mr. Serj. Hill, in his ant had paid bimself, and all the payments were copy of Burrow, bad written the following nute. in bis account. That the defendant has made (See the last edition published by Messrs. the usual affidavit, and has been allowed the Clarke.) stamp-duty for such papers as were unsold. That " It is a question of scurrility; and how can the duties for advertisements in the paper in that be a question of law? By St. Westm. 2d. question, were paid by the defendant's servant, 13 Edw. 1, c. 30, 'the justices shall not comand the receipt given on the defendant's account. pel the jurors to give a general verdict in assize,

William Lee, clerk 10 sir Joho Fielding, but, if they voluntarily will, let the verdict be proved, that be often carried advertisements for admitted sub suo periculo.' This statute, as apthe Public Advertiser, to the defendant's, at the pears in 2 lost. 425, extends to all actions and corner of Ivy-lane. That he generally paid really all issues, and also to pleas of the crown at the money; that he has seen money paid to the de- | king's suit. fendant for allvertisements, and he had a receipt in the Trial of the Seven Bishops, though from the defendant signed by bim the 29th of the Court was divided in their opioion, whether November, for 321. for printing advertisements the petition, for presenting wbich the defendin the Public Advertiser. On the part of the de- ants were indicted, as for making and publishfendant they called po witnesses. His counseling a libel, did in law amount to a libel, or not, objected to some of the innendoes, but they prio- yei [qu. not) one of the four judges of the cipally applied to the jury to acquit the detend- King's Bench, except tbe Chief Justice, exant, from the paper being innocent, or not liable pressly asserted, that that point was a matter of to the epithels given it by the information; or law, and therefore 10 be deterinined by the that the defendant's intent in publishing did not Court, and not by the jury; and two of the deserve the epithets in the information. judges, viz. Holloway and Powell, left it to the

There was no doubt but that the evidence, if jury as a matter to be determined by them, aod credited, amounted to proof of printing and declared to them their reasons for thinking it publisbing by the defendant. There may be not a libe!. See Foster 201, 202, 10 St. Tr. cases where the fact proved as a publication, App. [56.) (qu. 196, Owen’s Case, see it in tbis may be justified or excused, as lawful or ippo- Collection vol. 18, p. 1203.) Holt's Rep.683. 5 cent; for no fact which is not criminal, in case Mod. 209. Dyer 296. Lamb. Just. lib. 1. c. the paper be a libel, can amount to a publica-13, p. 177, 178. ed. 1582. 5 Mod. 206. Cro. tion, of wbich a defendant ought to be found Car. 332."

the printing and publishing (d) That no proof guilty : for nothing more is to be found by the of express malice ever was required, and is in jury. (h) most cases impossible to be given. That the In the case of the King and Williams, the verdict finds only what the law infers from the jury found the defendant guilty of printing fact : (e) therefore, after conviction, a defend- and publishing the North Briton, No. 45; the ant may, by affidavit, lessen the degree of his clerk entered it up guilty, and no objection guilt. That where an act in itself indifferent, was ever made. Where there are more charges if done with a particular intent, becomes cri- than one, guilty of some only is an acquittal minal, there the intent must be proved and as to the rest. But in this information there is found: but where the act is in itself unlawful, no charge except for printing and publishing. (f) as in this case, the proof of justification, or Clearly there can be no jodgment of acquittal; excuse, lies on the defendant; and, in failure because the fact found by the jury is the very thereof, the law implies a criminal intent.(8) crime they were to try.(i) The only question

The jury stayed out a great while, many is, Whether, by any possibility, the word 'only' hours; at last they came to my house ; (the can have a meaning wbich would affect or conobjection of its being out of the county being tradict the verdict. cured by consent.) In answer to the usual That the law, as to the subject matter of the question put by the officer, the foreman gave verdict, is as I have stated, has been so often their verdict in these words : “Guilty of the unanimously agreed by the whole Court, upon printing and publishing only.” Notbing more every report I have made of a trial for a libel, passed.

that it would be improper to make it a question The officer has entered up the verdict lite- now in this place. Among those that con. rally, without so much as adding the usual curred, the bar will recollect the dead, and words of reference to connect the verdict with the living not vow here. And we all again the matter to which it related.

declare our opinion, that the direction is right, Upon this, the two rules I have stated were and according to law. This direction, though moved for.

often given (with an express request from me, Upon that obtained by the Attorney-General, that if there was the least doubt, they would the affidavit of a juror was offered by the coon. move the Court) bas never been complained of sel for the defendant. But we are all of opi. in court; and yet, if it had been wrong, a new pion that it cannot be received. Where there trial would be of course. It is not now comis a doubt upon the judges' report, as to what plained of. Taking then the law to be acpassed at the time of bringing in the verdict,cording to this direction, the question is, wbeihere the affidavits of jurors, or by-standers, ther any meaning can be put upon the word may be received upon a motion for a new trial, only, as it stands upon the record, which or to rectify a mistake in the minutes. But will affect the verdict. If they meant to an affidavit of a juror never can be read as to say they did not find it a libel, or did not what he then thought or intended.

find the epithets, or did not find any express This motion consists of two parts; first, to malicious intent, it would not affect the ver. fill up the formal words of reference; the se- dict; (k) because none of tbese things were cond, to omit the word only.'. We are all of to be proved or found either way.. If, by, opinion, that the first is a technical omission of only, they meant to say that they did not find the clerk, and ought to be set right. As to the the meaning put upon the paper by the infor. second, that the word • only' must stand in the mation, they should have acquitted bim. If verdict.

they had expressed this to be their meaning, There is no ground (from any thing which the verdict would have been inconsistent and passed) to explain the sense of the jury, so as repugnant; for they ought not to find the dethat the officer might have entered a general fendant guilty, unless they find the meaning verdict. No argument can be urged for omit- put upon the paper by the information ;(l) and ting the word only,' which does not prove judgment of acquittal ought to have been enthat it can have no effect, though inserted; tered up. If they had expressed their meanand therefore it is a question of law upon the ing in any of the other ways, the verdict would face of the verdict. The defendant's motion not have been affected, and judgment ought to must be considered upon the ground of the be entered upon it. It is impossible to say with word 'only' standing; was it omitted, there certainty what tbe jury really did mean; procould be no doubt. Guilty of printing and pub- bably they had different meanings. If they jishing, wbere there is no other charge, is could possibly mean that which is expressed

would acquit the defendant, he ought not to be (d) Qu. Are they not rather inferences of reason which the jury have a right to (h) Qu. if they ought not also to find the make?

malice and the tendency ? (e) This appears to be somewhat obscure. (i) Qu. if it be more than a part of it ?

(0) Qu. if any act, even the voluntarily put- (k) Would it not make it a verdict of acting another man to death, be in itself unlaw- quittal ? ful?

(1) Qu. if the jury as plain men did not by (8) Qu. if this implication lie not within the words, guilty of publishing only mean the province of the jury ?

to say that the defendapt published the paper ?

concluded by ibis verdict. It is possible some living judges, then absent, did declare their of them might mean, not to find the whole sense opinions in open court, and whether the poble and explanation put upon the paper by the in- lord has any note of such opinions ? nuendoes in the information. If a doubt arises 6. " Whether they declared such opinions, from an ambiguous and unusual word in the after solemo arguments, or upon any point verdict, the Court ought to lean in favour of a judicially before them ?” Venire de Novo.

Lord Mansfield replied, that this method of We are under the less difficulty, because, in proposing questions to him, was taking him by favour of a defendant, though the verdict be surprise ; that it was unfair; and that he full, the Court inay grant a new trial. And we would not answer interrogatories. See 16 New are all of opinion, upon the whole of the case, Parl. Hist., pp. 1312, et seq. 1321, also p. 1304, that there sbould be a Venire de Novo.

Junius's Preface, published in Mr. Woodfall's
Jate edition of tbe Letters, Junius's Letter

signed Phalaris (letter 82) in the Miscellaneous This Judgment lord Mansfield, ou the 10th Letters of Junius, Woodfall's edition, vol. 3, of December, baving previously desired that p. 295, and the letter of Nerva in a vote to the the Lords might be summoned for that day, same page. read to the House of Lords; and informed their lordships that he had left a copy of it with the The preceding Cases gave rise to numerous clerk, and that their lordships might read it publications. Of those wbich impugned the and take copies of it if they pleased, but be did doctrines laid down in the Cases of Almou and not move that it should be entered on the Woodfall, some of the most considerable are, Journal, nor did he make any other motion

A Letter from Candour to the Public Adverrespecting it. This conduct seems to have ex

tiser. cited some surprise in the House, and occasioned severe animadversions in the political Warrants, the Seizure of Papers, and Sureties

A Letter to Mr. Almon concerning Libels, writings of the time. On the next day lord for the Breach of Behaviour, &c. By the Camden proposed the following Questions to Father of Candour. lord Mansfield, and desired to have his lord

Another Letter to Mr. Almon in matter of ship's Answers to them, having, as I understand

Libel. Mr. Holliday (Life of lord Mansfield, p. 317,)

A second Postscript to a Letter to Mr. Almon left them in writiog with the clerk.t

in matter of Libel. 1. “ Does the opinion mean to declare, that upon the general issue of Not Guilty, in Letters, signed Phileleutherus Anglicanus.

A Summary of the Law of Libel, in four the of a seditious libel, the jury have no A Letter to the Jurors of Great Britain occaright by law to examine the innocence or

sioned by an Opinion of the Court of King's criminality of the paper, if they think fit

, Bench read by Lord Chief Justice Mansfield, and to form their verdict upon such exami- in the Case of the King and Woodfall, &c. by pation ?

George Rous, esq. 2. “ Does the opinion mean to declare, that in the case above mentioned, where the See also An Inquiry into the Extent of the jury have delivered in their verdict Guilty, that Power of Juries on Trials of Indictments or this verdict has found the fact only, and not Informations for publishing Seditious or other the law ?

Criminal Writings, &c. extracted from the 3. “ Is it to be understood by this opinion, second volume of Mr. Baron Maseres's Addithat if the jury come to the bar, and say that tional Papers concerning the Province of Quethey find the printing and publishing, but that beck, in which is a very copious, exact, and satisthe paper is no libel, in that case the jury factory investigation of the nature of the queshave found the defendant Guilty generally, tions of intention and tendency in charges of and the verdict must be so entered up? libel. Add An Enquiry into the question, Whe

4. “ Whether the opinion means to say, ther Juries are or are pot judges of law as well that if the judge, after giving his opinion of the as of fact, with a particular reference to the innocence or criminality of the paper, should Case of Libels. (By Joseph Towers, L. L. D. leave the consideration of that matter, together a dissenting mipister.) with the printing and publishing, to the jury, Observations on the Rights and Duty of such a direction would be contrary to law ?

Juries in Trials for Libels, &c. by Joseph 5. “ I beg leave to ask, whether dead or Towers, L. L. D.

* The phraseology of Burrow's Report of Other prosecutions were had for the publithe Judgment differs from that in the Pari. Hist. cation of "Junius's Letter to the King, but I'

+ The Parliamentary History mentions not bave not seen a report which is worth publicathis leaving with the clerk.

tion of either of them.


556. The Trial of Maha Rajah NunDOCOMAR,* Bahader, for For

gery. At Calcutta, in the Province of Bengal: 15 GŁORGE
III. A. D. 1775. [Published by Authority of the Supreme
Court of Judicature in Bengal. London: Printed for T. Ca-
dell in the Strand, 1776.]
June 8, 1775.

The Court desired Dr. Anderson and Dr.. At a Court of Oyer and Terminer, and Gaol Williams 10 examine the prisoner, which they Delivery, holdeu in and for the Town of been indisposed in the night, but that he had

did, and reported that he complained of having Bengal, and the Limits thereof, and ihe neither fiux nor fever, and was very capable of Factories subordinate thereuutó, on the taking his trial; whereupon he was called to

the bar. 3d day of June, 1775.—Before the hon.

The Prisoner being informed of his right to Sir Elijau JMPEY, kot. Chief Justice, RoBERT CHAMBERS, STEPHEN Cæsar' LE: challenge when the Jury came to be sworn, MAISTRE, and John Hyde, esgrs. Justices. challenged the following gentlemen, from a

paper held in bis hand: John Lewis, William The King 0. Maha Rajah NunDOCOMAR.

Alkinson, Jobo Williams, William Dickson,

Richard Johnson, Joshua Nixon, Robert DoThe Prisoner being called to the bar, and nald, James Miller, Tilly Keitle, Ramsay arraigned, and the indictment read, his coun- Hannay, Thomas Adams, Bernard Messinck, sel tendered a plea to the jurisdiction of the Wm. Hamilton Bird, Charles Moore, AlexanCourt; but the Chief Justice pointing out an der Macneil, James Lally, William Briggs, objection thereto, which went both to the mal- Pbilip Coales. ter of fact and the law contained therein, aud The Counsel for the Crown challenged Sadesiring the counsel to consider if be could muel Stalham. amend it, and take time for so doing, he, afier having considered the objection, thought proper Edward Scott,

The following Jury was sword : to witl draw the plea; whereupon the prisoner Robert Mactarlin,

Jobp Ferguson,

Arthur Adie, pleaded, Not Guilty: and being asked by whom

Thomas Smith, John Collis, he would be tried ? he answered, By God and

Edward Eilerington, Samuel Touchet, bis peers. The Court desired to know whether he had any particular reason for using the word Joseph Bernard Smith, Edward Sattertiiwaite,

Jolin Robinson, Charles Weston. peers ? His counsel answered, that the prisover

The Jury elected Mr. John Robinson their beiog a man of the first diggity in this king

foreman. dom, thought he should be tried by people of equal rauk with bimself, agreeably to the law Mr. William Chambers, the principal interof England, which permiis every man to be preter, not being yet come from Madras, and tried by his peers. The Court asked, who the the two assistant interpreters, on account of Maha Rajah considered as his peers ? His their imperfect knowledge of Englislı, being counsel answered, be inust leave ibat to the deemed insufficient for a trial so long as this Court.

was expected to be, Mr. Alexander Kyn. ElChief Justice. The trial can only be by liot, superintendant of the Khalsa Records, a such persovs as are by the charter required to gentleman eminently skilled in the Persian and form the jury. A peer of Ireland tried in Eng- Hindustan languages, and Mr. William JackJand would be tried by a common jury. The son, laiely admitted an attorney of the court, charter directs, tbut in all criminal prosecu- who speaks the Hindostan tongue fluently, tions, the prisoner should be tried by the inha- were requested by the Court to interpret. bitants of ihe town of Calcutta, being British The Counsel for the Prisoner desired that the subjects.

evidence might be interpreted to him in the It being late, the Court aljourned till the blindoştan language, as it was most generally next morning at seven o'clock.

understood by the audience, and requested that the interpreter of the Court might be employed

for that purpose, and objected to the interpre-.. June 9, 1775.

tation of Mr. Elliot, as being connected with The counsel for the prisoner informed the persons whom the prisoner considered as his Court, that the Maha Rajah had been ill in enemies. the night, and had now a flux and fever, which Chief Justice. The principal interpreter of rendered him incapable of taking his trial. the court is absent; the gentlemen of the jury

have heard the interpretation of the assistant * These proceedings are amply discussed in interpreters on other occasions. Do you, genthe Cases of goveruor Hastings and of Sir Elijah tlemen, think we shall be able to go through Impey, and in the Parliamentary Debates re- this cause, with the assistance of those interspecting those Cases,

preters only

Jury. We are sure we shall not be able. the Persian language, purporting to have been

Chief Justice. It is a cruel_insinuation sealed by the said Bollakey Doss, with the seal against the character of Mr. Elliot, His or chop of him the said Bollakey Doss, feloyouth, just rising into life, his family, his niously did utter and publish as a true bond; known abilities and honour, should have pro. which said bond is in the words, characters, tected him from it.

and figures following, [Persian bond again re[Mr. Elliot desired he might decline inter-cited], with an intent to defraud the said Bolpreting. ]

lakey Doss of the said sum of 48,021 sicca Chief Justice.

We must insist upon it, that rupees principal, and of four annas on each you interpret: you should be above giving way rupee of the said principal sum, as premium or to the imputation : your skill in the languages, profit on the said principal sum; the said Maha and your candour, will show how little ground Rajah Nundocomar, Babader, at the time of there is for it.

publisbing of the said false, forged, and coun. Mr. Furrer. I hope Mr. Elliot does not ierteited bond by him as aforesaid, then and think the objection came from me; it was sug- there, well knowing the said bond to have been gested to me.

false, forged, and counterfeited, against the Chief Justice. Who suggested it ?

form of the statute in such case made and proMr. Farrer. I am not authorised to name vided, and against the peace of our said lord the person.

the king, bis crown and dignity. Chief Justice. It was improper to be made, “ And the jurors for our lord the king, upon especially as the person who suggested, does their oath do further present, that Maba Rajah not authorise you to avow it.

Nundocomar, Babader, late inhabitant in The Jury. We all desire that Mr. Elliot, whose town of Calcutta, and a person subject to the character and abilities we all know, would be jurisdiction of the Supreme Court of Judicature, so kind as to interpret.

al Fort William in Bengal, on the 15th day of Mr. Farrer. I desire on the part of the January, in the year last abovesaid, with force prisoner, that Mr. Elliot would interpret. and arms, at the town of Calcutta aforesaid,

Mr. Elliot and Mr. Jackson sworn to inter- teloniously did falsely make, forge, and counpret.

terfeit, and did cause to be falsely made, forged, The jury being impannelled, were charged the Persian language, and purporting to be

and counterfeited, a certain bond, written in with the prisoner, and the clerk of the crowd

sealed by one Bollakey Doss (then deceased) read the lodictment as follows:

in his life time, with the seal or chop of him “ Town of Calo 1. To wit. The jurors the said Bollakey Doss; the tenor of wbicb is cutta, and Fac- ( for our lord the king, upon as follows [Persian bond again recited] with tory: FoBengal; S Mala Rajal Numlocomar

, hun Doss, executors of the last will and testatheir oath present, That an intent to defraud Gungabissen and Pudmo. Bahader, late inhabitant of the town of Culoinent of the said Bollakey Doss, of the sum of cutta, and a person subject to the jurisdiction 48,021 sicca ropees as principal, and of four of the Supreme Court of Judicature at Fort annas on each rupee, as a profit or premium William, in Bengal, after the 29th day of June, on the said principal sum, against the form of in the year of our Lord 1729, to wit, on the the statute in that case made and provided, and 15th day of January, 1770, in the 10th year against the peace of our sovereigu lord the of the reign of our sovereign lord George the king, bis crown and dignity. 3rd, king of Great Britain, at the town of Cal- " And the jurors aforesaid, upon their gatha cutta aforesaid, with force and arms, feloni. aforesaid, do further present, that the aforeously did falsely make, forge, and counterfeit, said Maha Rajab Nundocomar, Bahader, afterand did cause and procure to be falsely made, wards, to wit, on the said 15th day of January, forget, and counterfeited, a certain bond in the in the year last abovesaid, at Calcutta aforePersian language, purporting to be sealed by said, a certain false, forged, and counterfeited one Bollakey Doss with the seal or chop of bond, purporting to be sealed by the said Bolbim the said Bollakey Doss, the tenor of which lakey Doss (then deceased) in his life time, bood is as follows [here the bond is written in with the seal or chop of him the said Bollakey Persian] with an intent to defraud the said Doss, feloniously did ulter and publish as a Bollakey Doss of the sum of 48,021 sicca ru- true bond; which said bond is in the words, pees principal, and of four annas on each rupee characters, and figures following, to wit, [Perof the said principal sum, as premium or pro- sian bond again recited) with an intent to de. fit on the said principal sum, against the form traud the said Gungabissen and Pudmohon of the statute in that case made and provided, Doss of the said suin of 48,021 sicca rupees of and against the peace of our said lord the kiny, principal, and of four annas on each rupee of his crown and dignity.

profit or premium on the said principal sum; " And the jurors aforesaid, upon their oath the said Maha Rajah Nundocoinar, Bahader, aforesaid, do turther present, that the aforesaid at the time of publishing the said false, forged, Maha Rajah Nundocomar, Babader, after and counterfeited bond, by him as aforesaid, wards, to wit, on the 15th day of January, in then and there, well knowing the said bond to the year last abovesaid, at Calcutta aforesaid, a have been false, forged, and counterfeited, certaiu false, forged, and counterfeited bond in against the form of the statute in such case

« PreviousContinue »