and severe a conclusion. This could not be called discussion, but was gross, unprovoked, and unsubstantiated calumny, as his Lordship would inform them. Such was this publication, as far as the soldiers were concerned, and such were the ge.neral calumnies it contained, which he had no doubt the Learned Lord would inform them amounted to a libel. He should now read the libel to them, and ask them, if this was not its true character? After reciting the order in the immediately preceding Gazette, the publication goes on to make the observations of its Author, which he conceives well worthy of attention, at a moment when the military energies of a neighbouring nation have reached an unprecedented height, and when the prevention of the actual subjugation of this country by our enemies in a great measure depends on the exertions of our sailors and soldiers. That a Ministry, whose character is infamy,-that such a mass of ignorance and corruption should have put the seal to their own conduct, by issuing such an order, the Writer esteems even in them extraordinary. The Attorney-General asked, could it be permitted, that, without discussing the merits of any act of an Administration, or the merits of any Administration generally, any Newspaper Writer should take upon himself to say that the conduct of Ministers was such that their character was infamy, and such as held them out to abhorrence ?-The publication proceeds, "Why, we indignantly demand, is this reward to be confined to the officers? Why is this insult to the army at large? Why is this unjust and ungenerous distinction made?" It goes on to notice the battles of Vimiera and Corunna, which it characterizes as "equivocal and barren," and asks," must corruption and imbecility manifest itself in every particular?"-Thus, the AttorneyGeneral contended, it was represented to the soldiers that they were vilified and disgraced; and to the public, that the motive of this grant to the officers was corruption. This mark of honour, which could be granted only to a few of the leading-officers, in testimony of the honourable conduct of the whole, was represented as odious and disgraceful to the soldiers, and to be corrupt on the part of Ministers. The publication then warned this country not rashly to shut their eyes against instruction, but to attend to the military system of the Ruler of France, which was deserving of imitation. "Merit finds promotion in his army."—" In his army, merit always finds reward." The spirit of the order the Author of the Publication interprets into this, that the officers alone in our army are entitled to reward. At this the Author feels indignant, and complains that common policy, nay, that justice is violated, by thus treating the soldier with contempt, nay, by placing him below his level.-The Attorney-General concluded by asking of the Jury, if this could be done for any other purpose than to excite discontent in the army?— and if so, they would hear from a higher authority than his that the Publication in question was a libel. A person from the Office of the Solicitor of the Treasury was then examined, who stated that he saw the certificate, to which was annexed the certified Copy of the Affidavit of Mr. White, as sole Proprietor and Printer of The Independent Whig, sworn by him at Dorchester Gaol, on the 18th May, 1810, signed by Edward Hatton, Esq. one of the Commissioners of the Stamp Office, which certificate, with the affidavit annexed, he now produced. Mr. Lawes, jun. here addressed his Lordship, begging to be heard a few words in this stage of the business. He begged to call to his Lordship's attention the case of Mr. Redhead Yorke, who was tried at York, on which occasion it was put to the Judge, whether the Defendant might not be allowed the privilege of Counsel to examine and cross-examine witnesses, while, at the same time, the Defendant was heard in his own defence? There was a printed Report of the case, which would give his Lordship satisfaction on this point, if he required it. Lord Ellenborough said he recollected the case, and being then Counsel for the Crown, had deferred to the opinion of the Learned Judge on that particular occasion. There was a contrary practice, however, prevailing in the Court, which he should be sorry to overturn, and that was, that no person could avail himself both of his own exertions, and of those of his Counsel. His Lordship had no objection, however, if a point of law should occur, that the Defendant should have the benefit, in arguing it, of the assistance of the Learned Counsel, or of any other Counsel he might chuse. His Lordship did not speak in relation to this trial, but objected to the irregularity which must naturally arise from such a practice. Mr. Lawes then requested to be allowed From the incompleteness of this evidence, the fact of the Paper in question being bought at the Office of the The Independent Whig, No. 23, Warwick-square, was proved; and Mr. S. Hill, of the Stamp Office, produced the original Affidavit. Mr. Lawes objected that the evidence was now more incomplete than before. Lord Ellenborough.-They are not pro to take an objection as to the Copy of the Affidavit, which had been put in to prove the responsibility of the Defendant to whatever was contained in the Sunday Newspaper called The Independent Whig. The Act of the 38th of the King, which recognized this as sufficient proof, directed that the Affidavit of Newspaper Proprietorship should be sworn before a Commissioner of Stamps, or one whom the Com-ceeding under the Statute now; they have missioners should specially appoint for that purpose. The present Affidavit appeared to have been sworn only before the Distributor of Stamps for the Dorsetshire district, the Defendant being, at the time of its being made, a prisoner in Dorchester gaol; and no authority to have been given to him for that purpose. The Attorney General answered this ob jection by reading from the Act a Proviso, that it should not be necessary to prove the Deputy a Commissioner or Officer. proved what they are not required by the Lord Ellenborough.-The certificate is now only suppletory evidence; and if the Affidavit was not sworn before the proper Officer it is void. But if the Defendant had only written a Letter, saying, I shall carry on such a Printing Business at such a Place, and a Paper had been produced bought at that Place, it would be probable evidence to go to a Jury, that the Defendant was the Publisher of the Paper. Mr. Lawes said, that his objection was, that the Affidavit was a perfect nullity, unless authorised by the Act of Parlia Lord Ellenborough would assume from the Copy of the Affidavit produced, that the Affidavit itself was sworn, because he was directed to do so by the Act: but that was not enough; it must be sworn either before a Commissioner, or a Person autho-ment. Here the Affidavit had been sworn rized by the Commissioners. The Act did not require that the authority should be proved; but the Affidavit before the Court ran, "Sworn before me, Whitaker, Distributor." The Act did not state that a Distributor, quoad Distributor had any authority to take the Affidavit. The Attorney General cal ed Mr. Whitaker, who proved that he had received from the Stamp Office in 1803, an authority in writing to take such Affidavits; but he had mislaid it. Mr. Lawes, rising to cross-examine this witness, Lord Ellenborough said, he would not have what was meant for lenity quoted as a precedent. The Counsel must put his client upon examining the witness: he might suggest the questions to him. Mr. Garrow, for the Prosecution, said, that this was not a new doctrine. It had been decided in Westminster Hall; and Mr. Clifford had left the Court in consequence of the decision. Mr. Whitaker produced the Letter from Mr. Beresford, late Secretary to the Commissioners, which enclosed his mislaid authority. It mentioned the authority enclosed. Mr. White then proceeded to crossexamine the Witness, which he did at considerable length. before a Person not appointed to take it. Lord Ellenborough. It is against you both ways. If they go upon the Act of Parliament, the Affidavit will be left to the Jury, with such observations as the produced envelope may suggest in favour of its authority. But, at any rate, they have a Declaration under the Defendant's hand, that he is the Printer, Publisher, and sole Proprietor, of a Paper intended to be published at No. 23, Warwick-square, on the 18th of May; and on the 23d of September following, a paper is purchased there. It is competent to you to shew, that in the intermediate time he ceased to carry on the Printing Business there. Otherwise the evidence is competent to go to a Jury, as to the fact of the Defendant being the Publisher of the Paper in question. Mr. Lawes requested that a Note might be taken of his objection. Lord Ellenborough-I have already anticipated your wishes. The libel was then read by the proper Officer, Mr. Lowten. The Paper was said to be printed and published by and for the Defendant. It Mr. Lawes was afraid the court were not yet in possession of his objection. was, that the Affidavit could not be read for another purpose than that for which it was made. Lord Ellenborough.-I have heard your objection,-think it has no foundation, over-rule it, and now we will go to something else. logy, and with little appearance of hyperbole,-"He did but live to taste of Liberty and die :"while for me, it should seem, after a much longer endurance, a Mr. Whitaker underwent a long cross-worse calamity than even death is reserved, examination by the Defendant. Mr. Lawes asked the Attorney-General, if he went upon the first or third count; as he wished to know which the Libel was read as applicable to; for, having only the common faculties of man, he had compared it only with the first in the Record. Lord Ellenborough. As applicable to any. If it is stated differently in different counts, it was your business to discover that difference before you came here. The Gazette was put in and proved; it being an allegation that such an order existed in it as the Libel quoted. The Defendant said, there had been no proof where the Gazette was obtained. Lord Ellenborough.-Your Paper admits it. The production of the Paper is evidence in all cases of bankruptcy. DEFENCE. May it please Your Lordship and In offering to the Court my Defence to the allegations this day produced against me, mistrustful as I am of the effect of my own feelings in the peculiar situation in which I stand, with a desire not to waste unnecessarily the time of the Court and Jury, I have chosen to commit what I have to say to paper, rather than to place my inexperience in competition with the practice and ingenuity of my Learned Opponent. Sensible, also, that the nature and quality of my vindication would be likely to bear little upon the tenour of the argument which would be pressed against me, and consequently less liable to interruption, I availed myself of this circumstance to digest my thoughts, and adapt them to the double purpose of convenience and precision. In doing which, I do but follow the example of that great literary Genius and Philanthropist, the unhappy Mr. Gilbert Wakefield;who, it will be remembered, for a similar offence with which I am charged, so fatally endured the peril attached to the indulgence of an exuberant but virtuous fancy, by being long immured within the very walls from which I have just emerged. To pursue the ana from which there is no escape, but through the effect of truth upon the minds of an enlightened and merciful Jury. After what has been urged by the Attorney-General, as to the nature and effect of the imputed Libel, and the dangerous tendency of its publication,-I should rise to address you in my own behalf with a much greater degree of diffidence and concern, were I not led to place my hopes upon a foundation totally distinct from the merits or demerits of the Publication in question. Had I been charged upon the record with the mere act of publication of the matter alleged against me, it would then have been necessary to have examined its quality; but when I am charged with causing the Publication to be made,with the view of exciting discontent and disaffection in the minds of the Liege Subjects of our Lord the King, and particularly of the Persons belonging to the Army, I come here to justify myself from this implication of the record.-In doing which I assume it as a principle of Justice, as well as Humanity, that I shall experience the indulgence of the Court and the attention of the Jury. Gentlemen of the Jury,-I will not question your liberality by supposing, that the remembrance of past transactions will have any influence in directing your decision upon the present occasion:-neither passion nor prejudice, I am persuaded, will interfere with or obstruct your justice. Gentlemen,-You have heard every thing brought that could be brought, from the sources of Law and Ingenuity, to stamp the shame of wilful criminality upon my head ;-and it is now your duty, as I am sure it is your inclination, to attend patiently and seriously to what I shall offer in my Defence. I pass over, therefore, the matter alleged in the information without a comment ;but I reply to all and every the particular charges contained in the Record:-and as the Law, which sets up that official instrument against me, permits me to attempt to refute its allegations, it is here I take my stand,-it is here I challenge convic tion,and fearlessly invoke your unbiassed and discriminating Verdict. The Record states, not only that I published the alleged Libel, but pronounces that I did it with a Criminal Intention!-The Speech of my Learned Adversary necessarily agrees with the words and meaning of the Record, both ascribing to me a wilful criminality, a direct mischievous and wicked intent, to the end and for the pur. poses set forth in the Information.-Without attempting to follow my Learned Adversary through the mazy path of legal disquisition, it is simply to the plain and positive declaration contained in that Record alone, that I propose to make my Reply, and to rest the proof of my Innocence upon the broad basis of Truth.-Gentlemen,-In a cause like the present, I apprehend your own judgment will tell you, and I should hope the Court will confirm it, that if I show in any one instance that I am charged wrongfully, that the Instrument by which I am arraigned is fictitious and defective,--that it is deficient in regularity as well as in substance. I say, Gentlemen, I apprehend it will be only necessary to make this appear to procure me a ready acquittal. I am aware, that there are certain cases wherein the law can dispense with forms, as well as render them indispensible in others. I know not, therefore, whether the error I shall detect will come under the first or last denomination; but this I know, that the error will be none the less for being disregarded; and that in criminal cases, where the life or liberty of a fellow creature is at stake, I have understood it to be the maxim of the Constitutional Law of England to let the scale of mercy preponderate, and grant the benefit of informality to the side which most requires it. In the first place, then, allow me to direct your attention while I declare, that the Place of Publication as set forth in the Record is erroneous. I know of no Publication vended in the Parish of St. Maryle-Bow, in the Ward of Cheap;-I have never stated myself to have had any Publication in such place. Let the Court refer to my affidavit, nay, to the Publication itself, or to any person who may be said to have purchased the same at the Office of Publication, and their evidence must refute the substance of the Record. The Law, I know, is held to be, that personal evidence is unnecessary in a case like the present; the Court receiving and acknowledging my affidavit, together with the production of my Publication, as sufficient evidence of my printing and publish ing-but then the Record must agree with both most minutely and circumstantially. It does not do so!-It does neither. It neither agrees with my Paper, nor my affidavit-but is contradictory to both. Should it be pretended that the forms of Court go so far as to allow that proof of the Publication in London only shall be held sufficient, I will ask, why attempt to name the specific place of Publication?— why should the King's Attorney invalidate his official instrument ?-why impeach the Record by the introduction of a positive falsehood, if he had not known that the proof of the identity of the Place of Publication had been necessary to have sustained his information-when the simple line of truth was plain before him ?—But I ask, if I had been as well prepared to have disproved the Publication being made in London, as I am prepared to disprove its being issued, where the Record states it to have been issued,-would not his Lordship have held it fatal to the information and I maintain the error is as palpable in the eye of reason and justice, as though the Publication had been issued at York. In other criminal cases, the Law requires a strict adherence to fact in matters of evidence; and shall I not be entitled to equal privilege with the assassin or the highwayman? This error is not imputed to me, and I leave it to your candour and justice to decide, whether the consequence should not rest with those who committed it. I have shewn the Record to be false, which states "The Independent Whig" Sunday Newspaper, to be published in the Parish of St. Mary-le-Bow, in the Ward of Cheap-that Paper being published in the Parish of Christchurch, in the Ward of Farringdon Within. Is it possible, then, that the Court shall proceed to try a cause, and a criminal cause too, by a false instrument? Or should his Lordship decree that I must answer to a false arraignment, I trust the Jury will never consent to ground their verdict upon the faith of an instrument so palpably erroneous. Should that, however, be the decision of the Court, though I do not despair of a different sentiment being entertained by the Jury, I shall nevertheless proceed to observe, that this False Record states also, that I published the alleged Libel with the most criminal intention :-and to prove this, my Learned Prosecutor has attempted to shew,-not that I either wrote, Court would permit, I would here call witnesses to prove that the article in question was the production of another person, and inserted without either my knowledge or consent;— but, Gentlemen, though the forms of law debar me from the privilege of thus unequivocally substantiating this fact, you will nevertheless credit the assertion; as you must necessarily conceive, situated as I was at the time, a prisoner in a distant gaol, (the gaol of Dorchester,) that, morally speaking, I could not have had the most distant idea of such an Article being about to appear in my Paper; and that consequently it was a moral impossi bility that I could either participate in the intention of the writer, or prevent its publication.-I say, Gentlemen, I could produce evidence of this fact, if the Rules of Court would permit ;-but, though not suffered to do this, I can at least declare, which here I most solemnly do, that the Article in question was written so close upon the hour of publication, as to preclude the possibility of any copy of it being sent to me before it was published to the world :-but that when it did reach me, I have evidence also to prove that I disclaimed any knowledge of it-let this circumstance, then, witness for me that I had no Criminal Intention in its publication.-And now, Gentlemen, let me entreat you to reflect upon the unprecedented perilous situation into which I have been driven, and from the effects of which I read, or even saw, the offensive article before insertion,-not that I was privy to, or participating in, the very act of its publication,-for this, Gentlemen, it was impossible that he could shew;-but only that the Law considers me responsible for all and every thing to which my name is affixed, whether with or without my consent, provided I enter my name in the proper Books at the Stamp-Office for that purpose. Thus you observe, Gentlemen, that the Law is to be imperative upon me, to keep me to the strict letter and meaning of my Affidavit, as entered in the Government Books, while it assumes to itself the license to vary or mis-state facts at pleasure, and still justice must submit to its caprice. If such be the usage of the Law, I cannot say much in praise of its equity. But to proceed :-Gentlemen, I humbly conceive that you sit here this day, to decide not more upon the merits and tendency of the Publication before you, than upon the positive assurance you may be brought to entertain of my intentional guilt or innocence in the fact of its publication. His Lordship may tell you, that the matter in question is a most heinous Libel, he may possibly convince you to that effect, but he must fail to convince you that I entertained the Criminal Intention set forth in the Record. Gentlemen -Reason, as well as Law, must agree, that it is the Intention alone which constitutes the criminality of the deed. "I may shoot mine arrow o'er the house and slayam thus brought to stand before you this my brother," but the Law would not condemn me, nor yet my conscience. With respect to this matter, I am as one who is told he has done some act in his sleep, of which he is altogether unconscious. But, Gentlemen, it is not (happily for me) it is not the Attorney-General's vouching it to have been done with a Criminal Intention, which will weigh any thing in your minds, provided your consciences do not concur in his opinion Gentlemen, You sit here, deputed by the Constitution of your Country, to decide between innocence and accusation,-to elicit truth, and such must constitute your Verdict. The Law is understood to be grounded upon Truth; and, whatever colouring art or enmity may give to a case, whatever inference or interpretation may arise from professional learning or ingenuity, still, after all, His Lordship, I should hope, will tell you, that it is your consciences which must decide,-that Truth must be the umpire !-If the Rules of this day.-It is just and natural to trace effects to their causes, and the present will be found to have its source in the operation of that Power which now arraigns me.-I beseech your earnest attention to this point. Gentlemen, I was borne away from the scene of my avocations,-deprived of the personal superintendance of my concerns, still to be accounted amenable for every incidental error, and with this only alternative,-to embrace immediate ruin, by relinquishing my means of support.-Driven, therefore, as I have been, into this present peril by the rigorous operation of the Law,-feeling, as I am made to do, the pressure of an awful responsibility, with the combination of other evils which have resulted from it,-I cannot but feel, likewise, the just and moral right I possess to your indulgence and protection.-Gentlemen, I take my God to witness, that I neither saw nor heard of the Article in question before its insertion; I never counselled nor sanctioned its appearance; |