spirit that was then raised, without having the fairness to state that it was a paper published ten years ago. What has been the conduct of the defendant? Why, that of maliciously stirring up and reviving doctrines that were dangerous to the constitution, at a time when it was likely that, if spread, they would do much mischief. What does he mean to prove? Does he mean to say, that in reality he had no seditious intention when he published this paper? Does he mean to say, thatbecause this paperwaspublished by theConstitutional society, the London Corresponding society, or any where else, that therefore his intentions in publishing the paper were innocent? My learned friend, Mr. Erskine, asked me whether I should prosecute him if he had sent forth any thing with his name, concerning a reform of parliament. God forbid I should prosecute any man for temperately discussing that subject, or any other subject; but I will tell him as a friend, that he will deal out hard measures for himself, if he will undertake to be accountable before your lordships for every doctrine maintained by many individuals of the society of which he is a member, and to which he is an ornament. I will tell your lordships freely, that if my learned friend had published this paper under all the circumstances with which this defendant published it, I should have been a traitor to my country if I hesitated a moment in bringing him forward as a defendant before your lordships, as I have brought forward the present defendant; and I now ask of your fordships whether you think of him as I do. -As to the evidence which was preferred on the behalf of the defendant, at the trial, I say it would have proved nothing, for it could only amount to this; that this paper was published before, by somebody else; what has that to do with this charge against the defendant? But your lordships are called upon now to hold this proposition;-that it is competent to one man to publish in a court of justice, the opinions of other people upon a libel with a view to show, that these other persons held the same doctrines as the defendant. Your lordships will see the length which this proposition leads to. If Mr. Erskine is to be allowed this for the defendant, I must be allowed something of the same sort for the prosecution. If he gives the opinion of some persons in favour of the paper, I shall give the opinion of juries upon the same doctrine; and then the defendant would be in a worse situation than if he had not offered that sort of evidence: therefore I think the learned judge was not only right in strictness of law, but also kind to the defendant in rejecting this sort of evidence.

The next thing to be considered, is the law upon this question. What is the present limitation of what is called the liberty of the press? I say that under that limitation, this paper is a scandalous libel. I take the law with regard to the press to be this: That you

may discuss the most important points if you please: You may abuse the constitution if you please, and the general forin of our government; provided you choose to be answerable in a court of law. Now I ask, is this paper, or is it not a scandalous and infamous libel, traducing and vilifying the existing magistracy of the country?—Now is this the way that the grievances of the people of this country, if they feel any, are to be redressed? "Parliaments chosen as they now are, and continuing for seven years as they now do, will ever be composed, for the most part of a few factions under the guidance of particular noblemen, perpetually contending for the power and emoluments of office. The common soldiery of these several factions, like that of all other standing armies, is made up of mercenaries from the most idle and profligate orders of the community. Who so idle as men of pleasure, and the vicious part of our nobility and gentry? Who so profligate as murdering nabobs, prostitute lawyers, and unprincipled adventurers, who, through the iniquity of corrupt elections, make their way into parlia ment, and there let out their tongues and their votes for hire?"

Is this treating parliament fairly? Is this merely informing the public of a fact, or is it a temperate commentary? Is the whole parliament corrupt? or are there not men among them, who by the blessing and providence of God, are such as will be praised by posterity, and perhaps make future ages wish they had such men among them as these are, to guide their counsels?-If persons will publish commentaries on parliament, let them do justice to its character and to the different men in it; and let them make a jury believe, that when they discuss any public matter, they discuss it temperately, and then a question will never arise between any defendant and myself before your lordships.

One sentence more and I have done. It is said that Mr. Justice Wilson omitted something which he ought to have laid before the jury in favour of the defendant. I cannot possibly conceive how that learned judge could have done more for the defendant than he did; for, after summing up the whole of the evidence, he asked the jury this question. "Are you satisfied that the defendant published this paper with a seditious intent?" The jury said they were satisfied he published it with a seditious intent, and therefore they found the defendant guilty.

These, my lords, are all the observations I have to submit. With regard to myself, I can only say, that I have done my duty as my conscience has directed me, and if I satisfy that, I shall not give myself trouble about what some people may think of me.

Mr. Erskine. My lords, am I now allowed to address your lordships for the defendant ?

Lord Kenyon. I take the rule to be, that the advocate for the prisoner commences the casc and speaks generally, either against judg

ment, or in mitigation of punishment, and therefore the attorney-general is to speak last. Mr. Erskine. I apprehend, my lords, that I am not in the situation in which your lordship seems to think I am. I think I have a right to speak in mitigation.

Lord Kenyon. I think the major part of your address, Mr. Erskine, was in mitigation of punishment. Almost the whole of it appeared to be so. However, as you desire it, you will now go on in mitigation of punish

ment.

Mr. Erskine. That is not the point at all, my lord. The question is, whether I am not to hear the attorney-general upon the whole matter before the Court, and reply?

Lord Kenyon. If there is a rule to guide the Court, and I understand there is, as I have stated, you are not, strictly speaking, entitled to proceed. We certainly shall not pronounce judgment to day, but all the business from the bar must be finished in this case. You have rejected the idea of moving in arrest of judgment; and if you have any thing to address to the Court in mitigation of punishment, I wish you would now be so good as to say it.

Mr. Erskine. The two papers of which the defendant stands charged, are distinct and separate. I shall not address the Court upon the first, because there are judgments upon that publication already. I shall therefore leave my client upon that part of his case entirely to the mercy of the Court, seeing as they do, that he has done every thing in his power to extenuate, for he discontinued the sale on the instant it was complained of. With regard to the other publication, unquestionably he stands in a different situation; for by publishing the second paper, he certainly meant nothing but that which as a subject of this country he thought he might legally do, not seeking to produce or occasion any of the anarchy or confusion which has been so much talked of. If I cannot say any thing farther on the point of law, I must leave my client in your lordships' hands.

Lord Kenyon. I hope that this doctrine will never go forth into the world, that a man may safely and legally publish what has been published before, provided it has not been the subject of a criminal prosecution in a court of justice. If any man adopts that doctrine, his judgment must be very much perverted indeed. All the mischief may be done that publication can do, if no legal steps can be taken till somebody has been arrested upon that account.

I hope that the transactions of this day, and some of the transactions of this term, will not be quoted as the authorities for the Court to proceed by. I am extremely sorry that any thing has been applied to this case, which did not arise out of the judge's report. I will say nothing of the character of the late sir John Wilson, who tried these informations; nor will I make any remarks on his reports, VOL. XXII.

but shall leave them entirely on the character which that gentleman has carried with him to the grave. I am very sorry at some of the remarks that have been made on the reports of the judges. The character of the judges is public property, and if they have done any thing amiss, they ought to be censured. But if not, their characters ought to be respected; otherwise the most mischievous consequences will arise to the public. I do not aim this at any body, I assure you, but I speak it from the conviction of my own mind, and feel myself bound to say thus much.

It cannot but occur to every person's observation, that as long as parties exist in the country, (and perhaps it is for the good of the country that parties should exist to a certain degree, because they keep ministers on their guard in their conduct), they will have their friends and adherents. A great political character, who held a high situation, in this country some years ago, but who is now dead, used to say that ministers were the better for being now and then a little peppered and salted. And while these parties exist, they will have their friendships and attachments, which will sometimes dispose them to wander from argument to declamation. And this is very often the case with respect to questions relating to libels.

The present question seems to lie in the least compass in the world, and to relate to points so long and so clearly settled, that no doubt can remain with respect to them. Both the points, to my mind, appear as clear as the sun. No man ever yet doubted but that the Gazette was evidence of all matters of state. And therefore I am perfectly satisfied that the opinion of sir John Wilson, formed at the trial, was perfectly correct.

Another question is, whether something or another ought not to have been admitted in evidence that was refused by the learned judge at the assizes. And it was said that if that evidence had been admitted, it would have gone to the innocence of the defendant. In answer to that, I can only say, that this evidence which was not admitted, is not to be found in the judge's report, and our determination must proceed on what appears on the face of the report. No motion in arrest of judgment can be made upon account of either of these two points as far as I can see. I verily believe no one man can entertain a doubt but that when four days are past, the season for moving for a new trial is over. It is competent after that, and any time before judgment, to move in arrest of judgment, and if the reasons which are adduced by the counsel shall appear to the Court to have weight, they will interfere. And if when the defendant is brought up for judgment, and no application is made on his part, yet if the Court perceive any error in the report, the Court will interpose, as in mercy they ought.

Mr. Justice Ashhurst said, he entirely con4 K

curred in opinion with lord Kenyon on both points. I think, said he, the Gazette was properly admitted to prove that addresses had been presented to the king in consequence of his most gracious proclamation. And I am also of opinion that the evidence which was refused by the learned judge on the trial of the other information was properly rejected. It has been said that if this paper is a libel now, it was also a libel ten years ago. I am not certain of the truth of that proposition. I conceive that a writing may be a libel at one time which is not so at another.

Mr. Justice Buller. The only two cases which apply to the present, are the King and Gough, and the King and Atkinson. In the first of these two cases, lord Mansfield said, "we must either grant a new trial, or defer judgment for ever." The result of these two cases is no more than this; if you do not move for a new trial within four days, you cannot be heard at all. The only resource left is either to move in arrest of judgment (I take it that it is good time to move in arrest of judgment at any time before judgment is pronounced), or you may address yourself to the Court in mitigation of punishment. And if in the course of that address, the Court see that injustice was done, they will interfere, but not otherwise.

As to the question whether the Gazette is good evidence to prove that addresses were presented to the king, I think that can hardly be made a question. At the same time I am of opinion that was an immaterial averment in the information, and that therefore it was unnecessary to give evidence of it.

As to the second objection I think there is no force in it; but I must not enter into it, as it does not arise out of the report, and I conceive we are bound to confine ourselves to the report.

Mr. Justice Grose was of the same opinion. Lord Kenyon. The defendant must be remanded.

The defendant was accordingly, as before, taken to the King's-bench prison.-On the Wednesday following he was again brought up to receive the judgment of the Court.

The Attorney General moved the Court for judgment.

Mr. Justice Ashhurst. Daniel Holt, you have been tried and found guilty on two several indictments for printing and publishing two very atrocious libels; the one intituled" An Address to the Addressers" and the other intituled" An Address to the Tradesmen, Mechanics, Labourers, and other Inhabitants of the town of Newark, on the subject of a parliamentary reform."

The first of these libels alludes to his majesty's most gracious proclamation, which is in every body's memory, and to the addresses of loyalty sent from all parts of the kingdom in consequence of it. These loyal addresses very much counteracted the designs of men

of such a description as the author of this publication. The general tendency of this libel is to bring his majesty's proclamation into contempt, and to insinuate that these addresses did not contain the genuine sentiments of the loyalty of his majesty's subjects, but that they had been set on foot by corrupt and interested men :--that the system of our government was a system of tyranny and oppression;-and that the formation of it was radically bad, and wanting reformation;—and that a parliamentary reform was to be brought about by the people only, and not by the parliament of Great Britain. And it daringly recommends a national convention to be held, as the proper means of reform. This publication also tends to traduce and vilify all kingly governments, in this and all the countries of Europe, and boldly calls on the subjects of this kingdom to insurrection and revolt; and insinuates that the example of a neighbouring nation was proper to be followed in this.

This paper falls very little short of high treason, and certainly stands in the very first rank of sedition.

The second of these libels most grossly and impudently asperses the parliament of this kingdom, and brands them with the imputation of venality and corruption, and calls for a parliamentary reform. As to the mode by which that reform was to be conducted, this paper does not so largely enter into it; that had been sufficiently pointed out by the for mer publication, intituled "An Address to the Addressers," which recommends it to be done by a national convention. The bloody advisers of such a measure have been acting a scene in a neighbouring country, which when we look upon we have the strongest reason to congratulate ourselves on our own condition when compared with the tyranny, rapine, murder, and desolation, which have ravaged that unfortunate country.

But

It has been alleged, in extenuation of your crime, that you were not the author or the first publisher of this pamphlet. how does that apply in your favour?Was it not enough that such a horrid production had been once stifled in the birth? and must you foster and nourish the unnatural and diabolical offspring, and give it fresh life and existence? Though the nation in general had shown their abhorrence and detestation of the doctrines contained in this publication, yet you were determined to cram it down the throats of his majesty's subjects.

What has been said in extenuation for the second publication can stand you in little stead; with respect to the subject of the publication, that it was published ten years ago, and that you only re-published it, and therefore are innocent, and that it could only mean the parliament which then existed, and not the present parliament of Great Britain. Let any man of common sense take that paper in his hand, and say, whether the utmost

extent of charity can consider it a simple, innocent republication. If you had meant it in that view, why not publish it with the ancient title, and why not state that it was published in such a year? Though even if you had done that, it ought not inevitably to retain one sense. But you yourself give it a present application; you address it to the "tradesmen, mechanics, labourers, and other inhabitants of the town of Newark, on the subject of a parliamentary reform." How are they to know that it ever was published before? how can they apply it but to the present existing parliament of Great Britain? The learned judge who tried this information, left the case to the jury, in a fair and candid way. He put this question to them: "Are you satisfied that the defendant published this paper with a malicious intent, or not?"-There could not be two opinions on the subject among honest men, and the jury found you guilty.

The malignity of this paper having been esteblished by the jury, it only remains for this Court to do its office. This Court will always know to temper mercy with justice where there

is room for it, but here there is no palliation As to the first of these libels, at least, your own counsel owned that nothing could be said for you. It behoves, then, this Court to try what can be done by the severity of punishment. And though there are but small hopes of your reformation, it may at least operate to deter others from being guilty of the same enormities. This Court has taken the magnitude of your offence into their consideration, and this Court doth order and adjudge, that for the first libel you pay a fine to the king of fifty pounds, and that you be imprisoned in his majesty's gaol of Newgate for the term of two years. And that for the second offence, you pay a further fine of fifty pounds, and be imprisoned in his majesty's gaol of Newgate for the further term of two years, to be computed from the expiration of your first imprisonment. And that after the expiration of your imprisonment, you find security for your good behaviour for the terin of five years, yourself in 2001. and two sureties in 501. each, and that you be imprisoned till such fines be paid, and till such securities are found, as aforesaid.

BEFORE reading the indictment, Mr. Clayton, town clerk, asked the defendant if he had a copy of the indictment.-The defendant answered, No.-He then asked if he had any gentleman of the law employed?-The defendant answered, he had none. Mr. Clayton asked if he had received the advice of any lawyer in the present case?-The defendant told him, none. He said, the Court had been informed the defendant wished to withdraw his former plea, and plead guilty to the indictment. The defendant said, he had never any such intention.

Mr. Clayton said, the defendant might object to any of the jury he did not approve of before they were sworn.

The Defendant said, he knew none of the gentlemen impanelled, and therefore could have no reasonable objection to any of them. Mr. Wilkinson, on the part of the crown, in a speech of some length, opened the cause; wherein he depicted the heinousness of the offence, and the necessity of exemplary punishment.

John Ridley sworn.

I have known him these twelve or eighteen months.

How came you acquainted with Mr. Whyte? By seeing him sometimes in Mr. Loggie's, and thinking from his conversation he was a man I might learn something from.

Do you mean you might learn something of politics from him?-No, Sir, we seldom discoursed upon these matters.

When did you see Mr. Whyte last at Mr. Loggie's?-It was on the morning of the 17th of February.

What is Mr. Loggie?-He's a beer-brewer, and keeps a public-house in Grindon-Chare, upon the Quay-side.

What time of the day was it you saw Mr. Whyte there; was it fore or afternoon?-It was about eight o'clock in the morning.

You were then drinking together in Mr. Loggie's house, were you?—Yes, Sir. Had you any appointment to meet Mr. Whyte that morning?-None, Sir.

Did you see him then have any paper in his hand?-He pulled a paper out of his pocket, and I desired him to read it.

What business is he?-He is a baker. How long have you known Mr. Whyte?

-He read a part of it.

Did he afterwards lend you that paper?→→

Yes, Sir,

What was your reason for asking Mr. Whyte to lend you that paper till next day?—— I thought there might be something curious in it; and though Mr. Whyte is a good reader, I did not then understand what he said; he was in liquor at the time.

Did you understand there was any thing seditious intended by that paper?-No, Sir; I did not.

Did Mr. Whyte, when he lent you that paper, say you might read it to any other person?-He said I might read it to a few friends. Did you then, in consequence of his permission, read that paper to any of friends?-I was reading that paper to some of my acquaintance at the Angel Inn, when serjeant Punshon plucked it out of my hand, and carried it to a magistrate.

your

How many might there be in company when you were reading that paper at the An gel Inn?There might be ten or twelve.

Would you know that paper again?-I think I would.-[The paper produced.]

Is that the paper you received from Mr Whyte on the 17th of February?—That is the paper.

Look at it; have you any mark to know it by?—Yes, that is the very paper; there's my

mark.

Did you make any alteration in that pp er after you received it from Mr. Whyte ?—No, Sir; I made no alteration in it.

Cross-examination by the Defendant.

You say I read part of that paper on the morning of the 17th of February, will you inform the Court and jury what part of the paper it was I then read?-I cannot positively say; but think it was a page or two in the beginning of the paper.

Have you ever seen me write ?-No.
Do you know my hand-writing?—I think

I do.

Can you positively swear I wrote that paper?--I think you wrote that paper.

Can you upon your oath positively say I wrote that very paper; or do you only believe I had wrote it?

[Here the witness began to hesitate; the Court required him to give a direct answer to the question.]

You say you desired me to read, and you asked the favour I would lend you that paper? -Yes, Sir.

Did you then understand there was any seditious purpose intended by that paper? No; I thought it perfectly innocent, and intended only for amusement.

Did you ever look upon me in the light of a malicious or seditious person?--I always looked upon you in the light of a friendly and agreeable companion.

Now you have said you did not understand one word I read in Mr. Loggie's, as I was

[This being again put in nearly the same words, he gave the same answer.]

Can you say, that you understood when I lent you that paper I intended thereby to publish it?-No, I certainly did not; I never thought it was intended for the public.

Serjeant Punshon sworn.

Do you know John Ridley?-Yes, Sir. What business is he?-He is a butcher. Do you know that paper?—Yes, Sir; I took it from J. Ridley on the 13th of February last. Was J. Ridley then reading that paper?— He pulled out that paper from his pocket, and desired me to read it to the company.

How many might there be in the company at the time?-About a dozen.

Did you then read that paper? - No; I looked at it-I thought it nonsense, and returned it to him again.

What do you understand to be nonsense?I cannot say, I cannot say; I did not understand it.

How came you to sieze the paper, when you say you did not understand it?-J. Ridley fell a reading of it, and I then thought it was queer; then I laid hold of it—he d-d my soul I should not have it; I carried it to alderman who sent me with it to

Mr. Mayor.

What did the mayor say to you when you brought him that paper?-The mayor desired me to bring J. Ridley before him

Did the mayor order you to bring Mr. Whyte before him?-No; but he was then passing by, and J. Ridley, who was then on the Court stairs, pointed at him, and said, yonder is Mr. Whyte who wrote the paper.

What did you do then?-I went after Mr. Whyte-I did not know him then-I asked if that was his name, and desired him to come and speak to J. Ridley; then I went in to Mr. Mayor, and got an order to detain

him.

Cross-examination.

Was I present when you seized that paper? -No; you were not present.

Had you any warrant from a magistrate for seizing that particular paper?-No; but we had an order to seize all such papers we could find, and bring them before a magistrate.

Who gave you that order?—It was alder

man

Was that order or warrant delivered to you in writing?-No; it was by word of mouth.

Did you consider that any such general order or warrant, by word of mouth from any magistrate, was sufficient to authorize you to seize either men or papers?

[Mr. Clayton said, that was not a fair question; but since the defendant desired it, he would put it to him.-Mr. Punshon answered in the affirmative.]