« PreviousContinue »
Extract from Mr. Erskine's Speech in Defence of the Rev. William Davies Shipies,
Dean of St. Asaph, who was tried for a Libel, Auguft 6ıb, at Shreujtury, before Judge Buller and a Special Jury.
(Continued from page 318.) GENTLEMEN I come now to a point
very it would amount
to would be that my bardzo that even if this innocent paper were admitted to would guide the prefent verdict. But what I be a libel, the publication would not be criminal, am afraid of upon this occafion is, that neither if you, the jury, raw reason to believe that it was of you are to give it; for so my friend has einot published by the Dean with a criminal in- pressly put it. “ My lord (says he), will protention. It is true, that if a paper containing bably not give you his opinion whether it be : feditiods and libellous matter be published, the libel or not, because, as he will tell you, it is a publisher is prima facie guilty of fedition, the question open upon the record; and that if Mr. bad intention being a legal infurence from the Éríkine thinks the publication innocent, he may act of publishing: but it is equally true, that he move to arrest the judgement."? Now, this is may rebut that inference, by shewing that he pub just the most artful and the most mortal stab that Bished it innocently. This was declared by Lord can be given to justice, and to my innocent ciMansfield, in the case of the King and Woodtall; ent. All I wish is his lordship's judgemeat, to where his lordihip said, that the fact of publication guide your's in determining whether this camwould in that instance have constituted guilt, if the phlet be or be not a libel; because, knowing paper was a libel; because the defendant had the scope of his understanding and profeshonal given no evidence to the jury to repel the legal ability, I have a moral certainty that his opinio2 inference of guilt, as arising from the publica- would be favourable. If, therefore, libel or no tion; but he said, at the same time, that such libel be a question of law, as is afferted by Mr. legal inference was to be repelled by proof, in Beurcroft, I call for his lordship's judgement upon the following words:-“ There may be cases, that question, according to the regular course of where the fact of the publication even of a libel all trials where the law and the fact are blended; may be justified or excused as lawful or innocent; in all which cases the notorious office of the for no fact which is not criminal, even though judge is to instruct the consciences of the jury tə the paper be a libel, can amount to a publica- draw a correct legal conclusion from the facts ia tion of which a defendant ought to be found evidence before them. A jury are no more guilty." *
bound to return a special verdict in cases of libel Here Mr. Erskine entered into a detail of the than upon other trials criminal and civil where Dean's conduct with regard to the pamphlei, to law is mixed with fact; but are to find genenew that his motives in publishing it were in rally upon both, receiving, as they constantly nocent. He itated to the jury, that the pamphlet do receive in every court at Weitminiter, the was written by Sir Williain Jones, that it was opinion of the judge both on the evidence and delivered by the Dean, at the desire of the Flint- the law. thire committee, of which he was a member, Say the contrary who will, I affert this to be to a Mr. Jones, to be translated into Welth, the genuine, unrepealed conititution of England; that on its being represented by certain persons and, therefore, if the learned judge shall tell you as likely to do mitchiet if circulated among the that this pamphlet is in the abitract a libels ignorant multitude, the Dean put a stop to the though I shall not agree that you are therefore intended publication in the Welsh tongue, on his bound to find the defendant guilty unless you own authority; but that, on finding himself ac think so likewise, yet I shall certainly think cused by Mr. Fitzmaurice at the public meetings that it ought to have very great weight with of the county of having had a design to publich you, and that you should not raihly, and with a pamphlet containing treasonable and feditionis
out great contideration, go againit it. But if doctrines, he directed a few English copies to you are only to find the fact of publithing, which be published, as the beit vindication of the is not even disputed; and the judge is to tell you, grounulels calumny that had been caít upon him. that the matter being on the record, he ihall Mi. Erikine having explained this, and the thut himself up in filence, and give no opiniog points to which he meaned to call evidence, at all as to the libellous and feditious tendency came next to touch on the particular province of of the paper, and yet shall neverthelets expect the jury on this occasion. Here, he said, he you to antix the epithet of guilty to the publicafound hinicli under the neceility of diftering tion of a thing, the guilt of which you are forbid, from the opinion of Lord Mansfield, ani pro and he refutes, to examine; miferable indeed is ceeded as follows:
the condition into which we are fallen! For Gentlemen, the opinion I allude to is, that if you, following such directions, bring in a verlibel or 10 libed is a queition of law for the judge, dict of guilty, without finding the publication a your jurisdiction being confired to the titt of libel, or the publisher feditious; and I afterwards, publication. And if this was at that was meant in mitigation of punishment, apply to that huby the position, though I could never admit it manity and mercy which is never deat when it tu be enfonant with reason or lv, it would not can be addressed contiitently with the law; I affcct me in the present instance, since all that shall be told by the judges, “ You are chopped,
* Burrows's Reports.
Sir, by the rerdiet: we cannot hear you say that freedom of conscience and civil opinion, your client was mistaken, but not guilty; for which even then were laying the foundations of bad that been the opinion of the jury, they had the Revolution. Whoever wrote on the princia jurisdiction to acquit him.
ples of government was pilloried in the Star Such is the way in which the liberties of Chamber, and whoever exposed the errors of a Englithmen are, by this new doctrine, to be shuf- false religion was prosecuted by the Commiilion fied about from jury to court, without having Court. any solid foundation to rest on. I call this the But no power can supersede the privileges of effect of new doctrines, because I do not find men in society, when once the lights of lcience them supported by that current of ancient pre have arisen amongst them. The prerogatives ccdents which conititutes English law.
which former princes exercised with fafety, and We all know, that by the immemorial usage even with popularity, were not to be tolerated of this country, no man in a criminal cafe could in the days of the first Charles, and our anceever be compelled to plead a special plea; for stors infiited that these arbitrary tribunals should although our ancestors settled an accurate boun be abolithed. Why did they inlift upon that dary between law and fact, obliging the party abolition? Was it that the question of libel, defendant who could not deny the latter to Thew which was their principal jurisdiction, hould bo his justification to the court; yet a man accused determined only by the judges at Westminster? of a crime had always a right to throw himself --In the present times, even such a reform, by a general plea upon the justice of his peers; though very detective, might be consiltent with and on such general issue, his evidence to the reason, because the judges are now free, hojury might be ever as broad and general as if he nourable, independent, and sagacious men; but had pleaded a special justification. The reason in those days they were wretches; libels upon of this distinction is obvious.
all judicature; and instead of admiring the wilThe rights of property depend upon various dom of our ancettors, it that had been their
po. intricate rules, which require much learning to licy, I thould have held them up to the scoff of adjust, and much precision to give them ftabi- poiterity; fince, in the times when these uncona lity; but erimes confit wholly in intention; ititutional tribunals were fupplanted, the courts and of that which patles in the breast of an Enge of Westminster-Hall were filled with judges lithman as the motives of his actions none but equally the tools of power as those in the Star an English jury shall judge. It is therefore im- Chamber; and the whole policy of the change possible, in most criminal cases, to separate law confifted in that principle, which was then nem from fact; and consequently, whether a writing ver disputed, viz. That the judges at Weitinin. be or be not a libel never can be an abstract ster in criminal cases were but a part of the legal question for judges. And this position is court, and could only administer justice through proved by the immemorial practice of courts, the medium of a jury. the forms of which are founded in legal reason: When the people, by the aid of an upright for that very libel over which it seems you are parliament, had thus succeeded in reviving the not to entertain any jurisdiction is always read, conftitutional trial by the country, the next and often delivered to you out of court for your course taken by the ministers of the crown was consideration.
to pollute what they could not destroy: Theriffs The administration of criminal justice in the devoted to power were appointed, and corrupt hands of the people is the basis of all freedom. juries packed, to facrifice the rights of their fel. While that remains there can be no tyranny, low-citizens, under the mask of a popular trial. because the people will not execute tyrannical This was practiled by Charles the Second; and laws on themfelves. Whenever it is loft, liberty was made one of the charges against King muft fall along with it, because the sword of James, for which he was expelled the kingdom. justice falls into the hands of men, who, howe When juries could not be found to their minds, ever independent, have no common interest with judges were during enough to brow-beat juries, the mass of the people. Our whole history is and to diétate to them what they called the law; therefore checquered with the struggle of our an and in Charles the Second's time an attempt ceitors to maintain this important privilege, was made, which, if it had proved fuccefstul, which in cafes of libel has been too often a would have been decifive. shameful and disgraceful subject of controversy. In the year 1670, Penn and Mead, two QuaFor the ancient government of this country not kers, being indicted for feditiously preaching to being founded, like the modern, upon that a multitude tumultuously alleubled in Grace. knowledge which the people have of its excel church-itreet, were tried before the recorder of lence, but fupported by ancient fuperititions, London, who told the jury that they had noand the lash of power, it is no wonder that it thing to do but to find whether the defendants saw the feeds of its destruction in free press. had preached or not; for that, as to whether the Printing, therefore, upon the revival of letters, matter or the intention of their preaching were when the lights of philofophy led to the detec- feditious, thele vere questions of law, and not of tion of these prescriptive usurpations, was conti fact, which they were to keep to at their peril. dered as a matter of itate, and subjected to the The jury, atier come debate, found Penn guilty control of licencers appointed by the crown: of speaking to people in Gracechurch-itrert; and although our anceitors had ftipulated by and on the recorder's telling them that they Magna Charta that no freeman should be judged meant, no doubt, that he was speaking to a but by his peers, the courts of Star Chamber and tumult of people there, he was intormed by the Iligh Commission, confisting of privy counteliers, foreman, that whey allowed or no luch words in seded during pleasure, opposed themselves to wheir finding, but adhered to their former ver
dict. The recorder refused to receive it, and of it." Nor was it withdrawn from their judge. defired them to withdraw, on which they again ment; for although the majority of the cours retired, and brought in a general verdictof acquittal; were of opinion that it was a libel, and had to which the court confidering as a contempt, fet publickly declared themselves from the berct, a fine of forty marks upon each of them, and to yet, by the unanimotis judgement of all the Jie in prison till paid. Edward Bushel, one of judges, after the court's own opinion had been the jurors (to whom we are almolt as much in- pronounced by way of charge to the jury, ube debted as to Mr. Hampden, who brought the petition itself, which contained no innuendse case of thip-inoney before the court of Exche- be filled up as facts, was delivered into their quer) refuled 10 pay his fine, and, being impri- hands, to be carried out of court, for their deli. foned in consequence of the refusal, sued out his beration. The jury accordingly withdrew froa writ of Habeas Corpus, which, with the cause the bar, carrying the libel with them. The of his commitment (viz. bis refusing to find ac decision was in favour of freedom, to the recording to the direction of the couri in marier af verend fathers were acquitted; and though law) was returned by the sheriffs of London to quitted in direct opposition to the judgement of the court of Common Pleas; when Lord Chief the court, yet it never occurred, even to the Justice Vaughan, to his immortal honour, ade arbitrary men who prefided in it, to catt upea dressed himself thus:--" We must take off this them a censure or a frown. veil and colour of words, which make a shew of I ought not to leave the subject of theke doc being something, but are in fact nothing. If the trines, which in the libels of a few years pat meaning of thele words, Finding against tbe din were imputed to the noble earl of whom I forre&tion of the court in matter of law, be, that if merly spoke, without acknowledging that Lord the judge, having heard the evidence given in Mansfield was neither the original author of court (tor he knows no other) thall tell the jury them, nor the copier of them from these impure upon thisevidence, that the law is for the crown, sources: it is my duty to say, that Lord Chief and they, under the pain of fine and imprison- Justice Lee, in the case of the King agaiak ment, are to find accordingly, every man sets Owen, had recently laid down the fame opinions that the jury is but a troublesome delay, great before him But then both of these grear judges charge, and of no use in determining right and always conducted themselves on trials of this sort wrong; and therefore the trials by them may be as the learned judge conducts himself to-day; better abolished than continued, which were a considering the jury as open to all the arguments strange and new-founded conclufion, after a trial of the defendant's council. The practice, thereso celebrated for many hundreds of years in this fore, of these great judges is a sufficient answer kingdom.” He then applied this found doc to their opinions; for if it be the law of Eng. trine with double force to criminal cases, and land, that the jury may not decide on the que discharged the upright juror from his illegal stion of libel, the same law ought to extend is commitment.
authority to prevent their being told by counkel This determination of the right of jurors to
that they may. find a general verdict was never afterwards que There is indeed no end of the absurdide ftioned by succeeding judges; not even in the which such a doctrine involves; for, suppote that
great cafe of the seven bithops, on which the this prosecutor, instead of indicting my reverend • difpenting power and the personal fate of King friend for publishing this dialogue, had indicted
James himlelf in a great measure depended. him for publishing the Bible, beginning at the These contcientious prelates were imprisoned in first book of Genelis, and ending at the end of the Tower, and profecuted by intormation for the Revelations, without the addition or fub having petitioned King James the Second to be traction of a single letter, and without an imeseks excused from reading in their churches the de- do to point a libellous application, only putting claration of indulgence which he had publithed in at the beginning of the indictment, that he contrary to law. The trial was had at the bar published it with a blasphemous intention; oa of the court of King's-Bench, when the Attor the trial for such a publication, Mr. Bearcroft ney-General of that day told the jury, that they would gravely say, “ Gentlemen of the Jury, had nothing to do but with the bare fact of pub- you muit certainly find by your verdict, that the lication, and said he thould therefore make no defendant is guilty of this indictment, i.e. guilty answer to the arguments of the bishop's countel, of publishing the Bible with the intentions as to whether the petition was or was not a li. charged by it. To be sure, every body will bel. But Chief Juitice Wright interrupted him, laugh when they hear it, and the conviction can and said, “ Yes, Mr. Attorney, I will tell you do him no poflible harm'; for the court of King's what they offer, which it will lie upon you to Bench will determine that it is not a libel, and answer: they would have you Mew the jury he will be discharged from the consequences of how this petition has disturbed the government, the verdict.” or diminished the King's authority.” Sony I. Gentlemen, I defy the most ingenious man I would have Mr. Bearcroft ilrew you, gentle. living to make a diftinction between thar cafe men, how this dialogue has disturbed the King's and the present; and in this way you are desired government, excited disloyalty and disattection to tport with your oaths, by pronouncing my to his perfon, and stirred up disorders within reverend friend to be a criminal, without either these kingdoms
determining yourtcives, or hearing a determinaIn the cale of the bishops, Mr. Justice Powell tion, or even an insinuation, from the judge that followed the Chief Justice, laying to the jury, any crime has been committeů. But it seems “ I have given my opinion, bui ibe whole mat your verdict would be no punithment, if judgt fit is before you genitemen, and you will judge inent on it was afterwards arteited. I am sure
if I thought the Dean fo loft to sensibility as to will be at variance, and it will then lie between feel it no punishment, he should find another God and your own consciences to reconcile tha counsel to defend him. But I know his .nature contradiction. better. I know thai, conscious as he is of his As the friend of my client, and the friend of own purity, he would leave this court, hanging my country, I shall feel much forrow, and you down his head in forrow, if he was held out by yourselves will probably hereafter regret it, when your verdict a feditious subject, and a disturber the season of reparation is filed. But why should of the peace of his country; and that he would ! indulge such unpleasant apprehensions, when feel the arreit of judgement, which would follow in reality I fear nothing? I know it is impolliin the term upon his formal appearance in a ble for English gentlemen, fitting in the place court as a criminal, to be a cruel insult upon you do, to pronounce this to be a seditious pahis innocence, rather than a triumph over the per; much less, upon the bare fact of publicaunjuft prosecutors of his pretended guilt. tion, explained by the prefixed advertisement,
Let'me, therefore, conclude with reminding and the defendant's general character and deyou, gentlemen, that if you find the defendant portment, to give credit to that seditious purpose guilty, not believing thai the thing published is which is necessary to convert the publication a libel, or that the intention of the publisher even of a libel itself into a crime. was seditious, your verdict and your opinion
THE MONTHLY CHRONOLOGY.
ence has proved the fality of this oath ; and AME on to be argued, in the court of on that evidence you have been moit justly found King's-Bench, the return to the writ of
guilty of both the fraud and the falle hood. Your mandamus brought by Mr. Wooldridge, to be large connexions, and extensive engagements, restored to the office of alderman ; which was
gave you a great power in regulating the price very ably argued by Mr. Garrow, on the part at market, and your acting in a double capacity of Mr. Wooldridge, and by Mr. Gibbs on the part made that power most dangerous to the comof the City of London; when the court were of munity at a very critical period of public atfairs. opinion, that if a man, either by his own act,
How you exerciled your discretion is plain: or by any other means, was brought into a
for the proof of your deceiving the commissioners, situation which rendered him incapable of per. and wronging your country, was lo palpable to forming the duties of his office, it was fit and the one, that the board dismissed you; and so proper that another person should be appointed clear to the other, that the jury found you guilty. in his itead. That it appeared by the return, You contracted for 6d. per pound profit. You that Mr. Wooldridge's imprisonment totally swore that you had no more; but you perjured incapacitated him from discharging the several
yourself Aagrantly and knowingly. You have duties required of him as an alderman of Lon no plea of excuse that the money paid to you don; and that the cases cited by Mr. Gibbs
was paid to you on account; because your charges to that point were very strong indeed.
were regularly adjusted, and the specifick sums Mr. Garrow wanting a further argument, the allowed to each article discharged in full by court granted the same, expressing an earnest the checks for the exact totals. No balance detire that the whole law respecting corporations bill, as you would insinuate, did, or could exThould be rendered as certain as potlible. It, ift, under such circumitances; and therefore the therefore, ftands over till next Term.
court considers your plea on that point, as well SATURDAY, 27.
as your being your own factor, a subterfuge, This morning, Chrittopher Atkinson, Esq. calculated for use at any time. the corn-factor, was brought up to the court " I thall not endeavour to aggravate your of King's-Bench to receive judgement, when crime, for, if you have feeling, it mult sufficiently Judge Willes addressed him in substance as
pain you in your present situation.—There rea follows:
mains nothing more for me to say, but the “I am to inform you, that, besides the
disagreeable necetlity of pronouncing the sentence offence of fraud, there is added the very great of the law; which is, crime of wilful and corrupt perjury, to prove “ That you, Christopher Atkinson, be the depravity of your mind, and there on the committed for one whole year to the prison of fulleit and most ample conviction of facts are this court: that once during that time you made evident to us, and to your country. You stand upon the pillory, near the Corn-market, have set up a detence by affidavits since your for the pace of one hour, between the hours of trial; but that detence is only an aggravation twelve and two of the clock: that you pay a of your guilt ; it is a subterfuge to do away fine of two thousand pounds : and that you retruth. You are not only the corn-factor, but main in prison untill such fine is paid." the corn-feller. You acted in both capacities. Mr. Atkinson has applied for a writ of error You fold your own corn, and had a protit on the against the judgement of the court. fale: this made you a leller. You bought the Same day was determined, on a writ of error, corn, and had a profit on the buying: this in the Exchequer Chamber, at Westminster, made you a factor. But your oath to the com the long conteited question between the ward of millioners ilates, that you had only a certain protit bridge and the proprietors of the London-bridge o the commission of buying. The trongest eve waterworks, as to their rateability to the allellinent Lond. Mac. Dec. 1784.
made towards the damages occasioned by the Somerset-Plaæ, when the following premiuss riots in 1780, when, after a folemn argument, were declared and given, viz. A gold medal to the judges were unanimoully of opinion the Mr. Thomas Proctor, for the best kitorical proprietors were rateable, and accordingly re picture in oil-colours, the fubject of which was verled the judgement obtained by then in the tahen trom Shakspeare's Tem pett. court of King's-Bench.
medal te Mr. Charles Rolli, for the bett hodet This night'sgazette contains his Majesty's pro of a bas-reliet, the subject of which was Vema clamation, that the parliament, which now conducting Helen to Paris. A gold medal to stands prorogued to the 2d of December, be on Mr. George Hattield, for the best defign in a. that day further prorogued to the 25th of Janu- chitecture, the lubject of which was plans, ary next, then to be held for the despatch of elevations, and lections of a national prison, diver; weighty and important affairs. Likewise calculated to keep the prisoners in safety, to preverit his Majesty's order in council, that the liberty mutiny, and to afford them such conveniencies of entering into bond for the payment, as well as may be neceflary for the preservation of their of the duty commonly called the Old Sublidy, health. Four filver medals for drawings of acaes of all ile further duties due upon tobacco demy figures were given to Mr. H. Singletor, Mr. imported directly from the territories of the John Ramberg, Mr. Alexander Moniss, and United States of America into the several ports Mr. Charles Hodges. Two filver medals tos mentioned in the orders of the 30th of July laft, models of academy figures were given to Mr. haii, in all reipects, be extended to tobacco John Alefounder and Mr. Charles Horwell. A imported into and exported from the port of ilver inedal tor a drawing in architecture, bejag Lancaster.
the welt.front, with the spire, ot St. Martia's TUESDAY, 30,
in the Fields, done from actual measures.cat, The Royal Society held their anniversary was given to Mr. John Bond. meeting, at their apartments in Somerter-Place, After the medals were given, the prefideat de in the Strand, when the pretident, Sir Juruph livered a discourle to the Itude:its. Banks, Bart. in the name of the lociety, pre The affembly then proceeded to eled the Pented S:: Godfrey Copley's gold medal to Dr. officers for the year ensuing, when Sir Johan Edward Waring, for his paper " on the sum Reynolds was elected prelident. mation of series, whose general term is a Council.
Visitors. determinate function of the distance from the J. B. Cipriani, Esq. John Bacon, Eig. firit term of the series.”—The prelident, on this J. S. Copley, Etq. Edward Burch, tla. occasion, delivered a short and elegant speech on Rev. Mr. Wm. Peters, Charles Cartoa, Eiç. the fubjects contained in Dr. Waring's paper. Benjamin Weft, Eig. J. S. Copley, Eiq.
The society afterwards proceeded to the choice - John Bacon, Esq. Benjamin West, El of the council and officers for the ensuing year, Sir Wilham Chambers, James Barry, Efa. when, on eramining the ballot, it appeared Richard Corway, Eių. J. Bap. Cipriani, Ele. that the following gentlemen were elected of Paul Sanby, Eig. P.J. De Loutherbourge the council:
Jer. Meyer, Era.
by fattening him to the mouth of a loaded canOf the new council:
and ordering it to be fired, by which Alexander Aubert, Eig. Rev. R. Price, LL D. nicans the man was blown to pieces. Henry Cavendith, Ely. Major Cien. W. Roy, By the evidence for the profecution, it apjohn Hunter, Elq. Mr. John Smeaton, peared that Mackenzie, the private, who was Richard Kiruan, Esq. Mr. William Wales, related to the domestick or a noble lord then at Charles Vilc. Malon, | Rev F.Wollaiton, LL.B the head of administration, by whose interett
The officers nere: Sir Joleph Banks, pre he was three times relpited from capital punithfident; Charles Blagden, M. D. Joteplı Planta, ment, was lent from England with other conE.q. Secretaries; Samuel Wegg, Esq. trealurer. victs, who, to the number of teventeen, formed, SUNDAY, Díc. 5,
with tive volunteers, the whole garrison of MoA violent storm arote at lea, with heavy rain, ree-That the deceased was first an adjutant from S. S. E. which continued with thort in under the command of Capt. Mackenzie, but termillion for several days, and did great damage deserted twice, and was reduced to the ranksto the thipping along the calt coart of the king. He was then made a prisoner at large, but dedom, froin Yarmouth, northward to Aber serted a third time--The captain fent a party deen. Many velFels fouidered at lea, and about in search of him, after a molt levere correctio, 150 were driven a-shore or wrecked within sight of 1500 lashes inflicted upon the sentinel sho of the land. On thore, the gale was attended suffered the deceased to pass--the prisoner, with a heavy fall of snow, which rendered the thinking the deceased was secreted by the blacka, roads for leveral days impatlable.
tired two guns into one of their fettlements, FRIDAY, 10,
which had the desired effe&, in making them Being the anniversary of the inftitition of bring back the deserter. When the deceafed was the Royal Academy, a general assembly of the surrendered, the captain ordered him to be tied mademicians was held at the Royal Academy, to a gun-one or two of the men ottered their