482 Extract from Mr. Erfkine's Speech in Defence of the Rev. William Davies Shipley, Dean of St. Asaph, who was tried for a Libel, August 6th, at Shrewsbury, before Judge Buller and a Special Fury. (Continued from page 318.) GENTLEMEN, I come now to a point very material for your confideration; namely, that even if this innocent paper were admitted to be a libel, the publication would not be criminal, if you, the jury, faw reafon to believe that it was not publifhed by the Dean with a criminal intention. It is true, that if a paper containing feditiods and libellous matter be published, the publisher is prima facie guilty of fedition, the bad intention being a legal inference from the act of publishing: but it is equally true, that he may rebut that inference, by fhewing that he publithed it innocently. This was declared by Lord Mansfield, in the cafe of the King and Woodfall; where his lordship faid, that the fact of publication would in that inftance have conftituted guilt, if the paper was a libel; because the defendant had given no evidence to the jury to repel the legal inference of guilt, as arifing from the publication; but he faid, at the fame time, that fuch legal inference was to be repelled by proof, in the following words:-" There may be cafes, where the fact of the publication even of a libel may be juftified or excufed as lawful or innocent; for no fact which is not criminal, even though the paper be a libel, can amount to a publication of which a defendant ought to be found guilty." Here Mr. Erskine entered into a detail of the Dean's conduct with regard to the pamphlet, to fhew that his motives in publishing it were innocent. He itated to the jury, that the pamphlet was written by Sir William Jones, that it was delivered by the Dean, at the defire of the Flintfhire committee, of which he was a member, to a Mr. Jones, to be tranflated into Welth, that on its being reprefented by certain perfons as likely to do mifchief if circulated among the ignorant multitude, the Dean put a stop to the intended publication in the Welsh tongue, on his own authority; but that, on finding himself accufed by Mr. Fitzmaurice at the public meetings of the county of having had a defign to publish a pamphlet containing treafonable and feditions doctrines, he directed a few English copies to be published, as the best vindication of the groundless calumny that had been caft him. Mr. Erkine having explained this, and the points to which he meaned to call evidence, came next to touch on the particular province of the jury on this occafion. Here, he faid, he found himfell under the neceflity of differing from the opinion of Lord Mansfield, and proceeded as follows: upon Gentlemen, the opinion I allude to is, that libel or no libel is a question of law for the judge, your jurifdiction being confined to the fist of publication. And if this was all that was meant by the pofition, though I could never admit it to be confonant with reafon or law, it would not affect me in the prefent inftance, fince all that it would amount to would be, that my lord, 151 not you, would deliver that opinion which Say the contrary who will, I affert this to be * Burrows's Reports. For Sir, Sir, by the verdict: we cannot hear you fay your client was mistaken, but not guilty; for had that been the opinion of the jury, they had a jurifdiction to acquit him. Such is the way in which the liberties of Englishmen are, by this new doctrine, to be fhuffled about from jury to court, without having any folid foundation to reft on. I call this the effect of new doctrines, because I do not find them supported by that current of ancient preecdents which constitutes English law. We all know, that by the immemorial ufage of this country, no man in a criminal cafe could ever be compelled to plead a fpecial plea; for although our ancestors fettled an accurate boundary between law and fact, obliging the party defendant who could not deny the latter to shew his juftification to the court; yet a man accufed of a crime had always a right to throw himself by a general plea upon the justice of his peers; and on fuch general iffue, his evidence to the jury might be ever as broad and general as if he had pleaded a fpecial juftification. The reafon of this distinction is obvious. The rights of property depend upon various intricate rules, which require much learning to adjuft, and much precision to give them ftability; but crimes confift wholly in intention; and of that which paffes in the breaft of an Englishman as the motives of his actions none but an English jury fhall judge. It is therefore impoffible, in moft criminal cafes, to separate law from fact; and confequently, whether a writing be or be not a libel never can be an abstract legal queftion for judges. And this pofition is proved by the immemorial practice of courts, the forms of which are founded in legal reafon: for that very libel over which it seems you are not to entertain any jurifdiction is always read, and often delivered to you out of court for your confideration. The adminiftration of criminal juftice in the hands of the people is the bafis of all freedom. While that remains there can be no tyranny, because the people will not execute tyrannical laws on themfelves. Whenever it is loft, liberty muft fall along with it, because the fword of justice falls into the hands of men, who, however independent, have no common intereft with the mafs of the people. Our whole hiftory is therefore checquered with the ftruggle of our ancestors to maintain this important privilege, which in cafes of libel has been too often a shameful and difgraceful fubject of controversy. For the ancient government of this country not being founded, like the modern, upon that knowledge which the people have of its excellence, but fupported by ancient fuperititions, and the lafh of power, it is no wonder that it faw the feeds of its destruction in a free prefs. Printing, therefore, upon the revival of letters, when the lights of philofophy led to the detection of these prefcriptive ufurpations, was confidered as a matter of ftate, and fubjected to the control of licencers appointed by the crown: and although our ancestors had ftipulated by Magna Charta that no freeman fhould be judged but by his peers, the courts of Star Chamber and High Commiffion, confifting of privy counsellors, rected during pleafure, oppofed themfelves to that freedom of confcience and civil opinion, which even then were laying the foundations of the Revolution. Whoever wrote on the princi→ ples of government was pilloried in the Star Chamber, and whoever expofed the errors of a falfe religion was profecuted by the Commiffion Court. But no power can fuperfede the privileges of men in fociety, when once the lights of feience have arifen amongst them. The prerogatives which former princes exercifed with fafety, and even with popularity, were not to be tolerated in the days of the firft Charles, and our anceftors infifted that thefe arbitrary tribunals fhould be abolished. Why did they infift upon that abolition? Was it that the question of libel, which was their principal jurifdiction, hould be determined only by the judges at Westminster? In the prefent times, even fuch a reform, though very defective, might be confiftent with reafon, because the judges are now free, honourable, independent, and fagacious men; but in thofe days they were wretches; libels upon all judicature; and instead of admiring the wif dom of our ancestors, if that had been their policy, I should have held them up to the fcoff of pofterity; fince, in the times when these unconftitutional tribunals were fupplanted, the courts of Westminster-Hall were filled with judges equally the tools of power as thofe in the Star Chamber; and the whole policy of the change confifted in that principle, which was then never difputed, viz. That the judges at Westminfter in criminal cafes were but a part of the court, and could only adminifter juftice through the medium of a jury. When the people, by the aid of an upright parliament, had thus fucceeded in reviving the conftitutional trial by the country, the next courfe taken by the ministers of the crown was to pollute what they could not destroy: fheriffs devoted to power were appointed, and corrupt juries packed, to facrifice the rights of their fellow-citizens, under the mafk of a popular trial. This was practifed by Charles the Second; and was made one of the charges against King James, for which he was expelled the kingdom. When juries could not be found to their minds, judges were daring enough to brow-beat juries, and to dictate to them what they called the law; and in Charles the Second's time an attempt was made, which, if it had proved fuccefstul, would have been decifive. In the year 1670, Penn and Mead, two Quakers, being indicted for feditiously preaching to a multitude tumultuously affembled in Gracechurch-street, were tried before the recorder of London, who told the jury that they had nothing to do but to find whether the defendants had preached or not; for that, as to whether the matter or the intention of their preaching were feditious, thefe were questions of law, and not of fact, which they were to keep to at their peril. The jury, after fome debate, found Penn guilty of fpeaking to people in Gracechurch-street; and on the recorder's telling them that they meant, no doubt, that he was fpeaking to a tumult of people there, he was informed by the foreman, that they allowed of no fuch words in their finding, but adhered to their former ver diet. dict. The recorder refused to receive it, and defired them to withdraw, on which they again retired, and brought in a general verdict of acquittal; which the court confidering as a contempt, fet a fine of forty marks upon each of them, and to lie in prifon till paid. Edward Buthel, one of the jurors (to whom we are almoft as much indebted as to Mr. Hampden, who brought the cafe of fhip-money before the court of Exchequer) refuted to pay his fine, and, being imprifoned in confequence of the refufal, fued out his writ of Habeas Corpus, which, with the caufe of his commitment (viz. bis refusing to find according to the direction of the court in matter of law) was returned by the theriffs of London to the court of Common Pleas; when Lord Chief Juftice Vaughan, to his immortal honour, addreffed himself thus:-"We muft take off this veil and colour of words, which make a fhew of being fomething, but are in fact nothing. If the meaning of thefe words, Finding against the direction of the court in matter of law, be, that if the judge, having heard the evidence given in court (for he knows no other) thall tell the jury upon this evidence, that the law is for the crown, and they, under the pain of fine and imprifonment, are to find accordingly, every man fecs that the jury is but a troublefome delay, great charge, and of no ufe in determining right and wrong; and therefore the trials by them may be better abolished than continued; which were a ftrange and new-founded conclufion, after a trial fo celebrated for many hundreds of years in this kingdom." He then applied this found doctrine with double force to criminal cafes, and difcharged the upright juror from his illegal commitment. This determination of the right of jurors to find a general verdict was never afterwards queftioned by fucceeding judges; not even in the great cafe of the feven bishops, on which the difpenfing power and the perfonal fate of King James himself in a great meafure depended. Thefe confcientious prelates were imprifoned in the Tower, and profecuted by information for having petitioned King James the Second to be excufed from reading in their churches the declaration of indulgence which he had published contrary to law. The trial was had at the bar of the court of King's-Bench, when the Attorney-General of that day told the jury, that they had nothing to do but with the bare fact of publication, and faid he fhould therefore make no answer to the arguments of the bishop's countel, as to whether the petition was or was not a libel. But Chief Justice Wright interrupted him, and faid, "Yes, Mr. Attorney, I will tell you what they offer, which it will lie upon you to anfwer: they would have you fhew the jury how this petition has difturbed the government, or diminished the King's authority." So fay 1. I would have Mr. Bearcroft firew you, gentle men, how this dialogue has disturbed the King's government, excited difloyalty and difaffection to his perfon, and ftirred up diforders within thefe kingdoms. of it." Nor was it withdrawn from their judgement; for although the majority of the court were of opinion that it was a libel, and had fo publickly declared themselves from the bench, yet, by the unanimous judgement of all the judges, after the court's own opinion had been pronounced by way of charge to the jury, the petition itself, which contained no innuendoes to be filled up as facts, was delivered into their hands, to be carried out of court, for their deli beration. The jury accordingly withdrew from the bar, carrying the libel with them. The decifion was in favour of freedom, for the reverend fathers were acquitted; and though acquitted in direct oppofition to the judgement of the court, yet it never occurred, even to thote arbitrary men who prefided in it, to caft upon them a cenfure or a frown. I ought not to leave the fubject of thefe doc trines, which in the libels of a few years pat were imputed to the noble earl of whom I formerly fpoke, without acknowledging that Lord Mansfield was neither the original author of them, nor the copier of them from thefe impure fources: it is my duty to fay, that Lord Chief Juftice Lee, in the cafe of the King against Owen, had recently laid down the fame opinions before him But then both of thefe great judges always conducted themfelves on trials of this fort as the learned judge conducts himself to-day; confidering the jury as open to all the arguments of the defendant's council. The practice, therefore, of thefe great judges is a fufficient anfwer to their opinions; for if it be the law of Eng land, that the jury may not decide on the que ftion of libel, the fame law ought to extend its authority to prevent their being told by counfel that they may. There is indeed no end of the abfurdities which such a doctrine involves; for, fuppofe that this profecutor, inftead of indicting my reverend friend for publishing this dialogue, had indicted him for publishing the Bible, beginning at the first book of Genefis, and ending at the end of the Revelations, without the addition or fubtraction of a fingle letter, and without an innuen do to point a libellous application, only putting in at the beginning of the indictment, that he published it with a blafphemous intention; on the trial for fuch a publication, Mr. Bearcroft would gravely fay, Gentlemen of the Jury, you must certainly find by your verdict, that the defendant is guilty of this indictment, i. e. guilty of publishing the Bible with the intentions charged by it. To be fure, every body will laugh when they hear it, and the conviction can do him no poffible harm; for the court of King's Bench will determine that it is not a libel, and he will be difcharged from the confequences of the verdict." Gentlemen, I defy the moft ingenious man living to make a diftinction between that cale and the prefent; and in this way you are deûred to port with your oaths, by pronouncing my reverend friend to be a criminal, without either determining yourfclves, or hearing a determinaIn the cafe of the bishops, Mr. Justice Powell tion, or even an infinuation, from the judge that followed the Chief Juftice, faying to the jury, any crime has been committed. But it seems I have given my opinion, but the whole mat- your verdict would be no punishment, if judgeter is before you, genitemen, and you-will-judgement on it was afterwards arrested. I am fures if I thought the Dean fo loft to fenfibility as to feel it no punishment, he should find another counfel to defend him. But I know his nature better. I know that, conscious as he is of his own purity, he would leave this court, hanging down his head in forrow, if he was held out by your verdict a feditious subject, and a disturber of the peace of his country; and that he would feel the arrest of judgement, which would follow in the term upon his formal appearance in a court as a criminal, to be a cruel infult upon his innocence, rather than a triumph over the unjuft profecutors of his pretended guilt. Let me, therefore, conclude with reminding you, gentlemen, that if you find the defendant guilty, not believing that the thing published is a libel, or that the intention of the publisher was feditious, your verdict and your opinion CAM will be at variance, and it will then lie between God and your own confciences to reconcile the contradiction. As the friend of my client, and the friend of my country, I fhall feel much forrow, and you yourselves will probably hereafter regret it, when the season of reparation is fled. But why should I indulge fuch unpleasant apprehenfions, when in reality I fear nothing? I know it is impollible for English gentlemen, fitting in the place you do, to pronounce this to be a feditious paper; much lefs, upon the bare fact of publication, explained by the prefixed advertisement, and the defendant's general character and deportment, to give credit to that feditious purpofe which is neceffary to convert the publication even of a libel itself into a crime. THE MONTHLY CHRONOLOGY. WEDNESDAY, Nov. 24, AME on to be argued, in the court of King's-Bench, the return to the writ of mandamus brought by Mr. Wooldridge, to be rettored to the office of alderman; which was very ably argued by Mr. Garrow, on the part of Mr.Wooldridge, and by Mr. Gibbs on the part of the City of London; when the court were of opinion, that if a man, either by his own act, or by any other means, was brought into a fituation which rendered him incapable of performing the duties of his office, it was fit and proper that another perfon fhould be appointed in his ftead. That it appeared by the return, that Mr. Wooldridge's imprisonment totally incapacitated him from difcharging the feveral duties required of him as an alderman of London; and that the cafes cited by Mr. Gibbs to that point were very strong indeed. Mr. Garrow wanting a further argument, the court granted the fame, expreffing an earnest detire that the whole law refpecting corporations fhould be rendered as certain as pollible. It, therefore, ftands over till next Term. SATURDAY, 27. This morning, Christopher Atkinson, Efq. the corn-factor, was brought up to the court of King's-Bench to receive judgement, when Judge Willes addreffed him in fubftance as follows: "I am to inform you, that, befides the offence of fraud, there is added the very great crime of wilful and corrupt perjury, to prove the depravity of your mind, and thefe on the fullest and most ample conviction of facts are made evident to us, and to your country. You have fet up a defence by affidavits fince your trial; but that defence is only an aggravation of your guilt; it is a fubterfuge to do away truth. You are not only the corn-factor, but the corn-feller. You acted in both capacities. You fold your own corn, and had a profit on the fale: this made you a feller. You bought the corn, and had a profit on the buying: this made you a factor. But your oath to the commillioners itates, that you had only a certain profit n the commiffion of buying. The strongest eviLOND. Mac. Dec. 1784. ence has proved the faluty of this oath; and on that evidence you have been moit justly found guilty of both the fraud and the falsehood. Your large connexions, and extenfive engagements, gave you a great power in regulating the price at market, and your acting in a double capacity made that power moft dangerous to the community at a very critical period of public affairs. How you exercifed your difcretion is plain: for the proof of your deceiving the commiffioners, and wronging your country, was fo palpable to the one, that the board difmiffed you; and fo clear to the other, that the jury found you guilty. You contracted for 6d. per pound profit. You fwore that you had no more; but you perjured yourself flagrantly and knowingly. You have no plea of excufe that the money paid to you was paid to you on account; becaufe your charges were regularly adjusted, and the fpecifick fums allowed to each article difcharged in full by the checks for the exact totals. No balance bill, as you would infinuate, did, or could exift, under fuch circumftances; and therefore the court confiders your plea on that point, as well as your being your own factor, a fubterfuge, calculated for ufe at any time. "I thall not endeavour to aggravate your crime, for, if you have feeling, it must sufficiently pain you in your prefent fituation.-There remains nothing more for me to fay, but the difagreeable necetlity of pronouncing the sentence of the law; which is, "That you, Chriftopher Atkinson, be committed for one whole year to the prifon of this court: that once during that time you ftand upon the pillory, near the Corn-market, for the space of one hour, between the hours of twelve and two of the clock: that you pay a fine of two thousand pounds: and that you remain in prifon untill fuch fine is paid." Mr. Atkinson has applied for a writ of error against the judgement of the court. Same day was determined, on a writ of error, in the Exchequer Chamber, at Westminster, the long contested question between the ward of bridge and the proprietors of the London-bridge waterworks, as to their rateability to the affeffient 3 R made made towards the damages occafioned by the riots in 1780, when, after a folemn argument, the judges were unanimoutly of opinion the proprietors were rateable, and accordingly reveiled the judgement obtained by them in the court of King's-Bench. This night's gazette contains his Majesty's proclamation, that the parliament, which now ftands prorogued to the 2d of December, be on that day further prorogued to the 25th of January next, then to be held for the defpatch of divers weighty and important affairs.-Likewife his Majelty's order in council, that the liberty of entering into bond for the payment, as well of the duty commonly called the Old Subfidy, as of all the further duties due upon tobacco imported directly from the territories of the United States of America into the several ports mentioned in the orders of the 30th of July laft, hail, in all respects, be extended to tobacco imported into and exported from the port of Lancafter. TUESDAY, 30, The Royal Society held their anniversary meeting, at their apartments in Somerlet-Place, in the Strand, when the prefident, Sir Jofeph Banks, Bart. in the name of the fociety, prefented Sir Godfrey Copley's geld medal to Dr. Edward Waring, for his paper on the fummation of feries, whofe general term (Z) is a determinate function of the distance from the firit term of the feries."-The prefident, on this occafion, delivered a fhort and elegant speech on the fubjects contained in Dr. Waring's paper. The fociety afterwards proceeded to the choice of the council and officers for the enfuing year, when, on examining the ballot, it appeared that the following gentlemen were elected of the council: Of the old council: Henry Vife.Palmerston, Jofeph Pianta, Etq. Geo. John Earl Spenter, William Watfon, M.D. Samuel Wegg, Eiq. council: Sir Jofeph Banks, Bart. A violent torm arote at fea, with heavy rain, from S. S. E. which continued with fhort intermiffion for feveral days, and did great damage to the thipping along the calt coat of the kingdom, from Yarmouth, northward to Aberdeen. Many veffels foundered at fea, and about 150 were driven a-fhore or wrecked within fight of the land. On thore, the gale was attended with a heavy fall of fnow, which rendered the roads for feveral days impaffable. FRIDAY, 10, Being the anniversary of the inftitution of the Royal Academy, a general affembly of the academicians was held at the Royal Academy, Somerset-Place, when the following premiums were declared and given, viz. A gold medal to Mr. Thomas Proctor, for the best hiftorical picture in oil-colours, the subject of which was taken from Shakspeare's Tempeft. A gold medal to Mr. Charles Roffi, for the best model of a bas-relief, the fubject of which was Venus conducting Helen to Paris. A gold medal w Mr. George Hatfield, for the best defign in ar. chitecture, the fubject of which was plans, elevations, and fections of a national prifon, calculated to keep the prifoners in fafety, to prevent mutiny, and to afford them fuch conveniencies as may be neceflary for the prefervation of their health. Four filver medals for drawings of academy figures were given to Mr. H. Singleton, Mr. John Ramberg, Mr. Alexander Monies, and Mr. Charles Hodges. Two filver medals tot models of academy figures were given to Mr. John Alefounder and Mr. Charles Horwell. A filver medal for a drawing in architecture, being the wet front, with the fpire, of St. Martin's in the Fields, done from actual measurement, was given to Mr. John Bond. After the medals were given, the prefident delivered a difcourte to the ftudents. The affembly then proceeded to elect the officers for the year enfuing, when Sir Joshua Reynolds was elected prefident. Council. J. B. Cipriani, Efq. Vifitors. John Bacon, Efq. Edward Burch, big. Charles Catton, Eig. J. S. Copley, Elq. Benjamin Weit, Efq. James Barry, Elq. J. Bap. Cipriani, Efc. P. J. De Loutherbourg, Efq. Jer. Meyer, Efq. Same day, at the Old-Bailey, Capt. Kenneth Mackenzie, late commander of his Majesty's fort at Moree, on the coaft of Africa, was convicted of the wilful murther of Kenneth Murray Mackenzie, a private foldier in the faid tort, by faftening him to the mouth of a loaded cannon, and ordering it to be fired, by which means the man was blown to pieces. By the evidence for the profecution, it appeared that Mackenzie, the private, who was related to the domeftick of a noble lord then at the head of administration, by whofe intereft he was three times refpited from capital punithment, was fent from England with other convicts, who, to the number of feventeen, formed, with five volunteers, the whole garrifon of Moree-That the deceafed was first an adjutant under the command of Capt. Mackenzie, but deferted twice, and was reduced to the ranksHe was then made a prifoner at large, but deferted a third time--The captain fent a party in fearch of him, after a molt fevere correction of 1500 lafhes inflicted upon the fentinel who fuffered the deceafed to pafs-the prifoner, thinking the deceafed was fecreted by the blacks, fired two guns into one of their fettlements, which had the defired effect, in making them bring back the deferter. When the deceafed wat furrendered, the captain ordered him to be tied to a gun-one or two of the men offered their mediation |