and you must necessarily perceive, if you credit the assertion I have made, or the evidence I desire to adduce, that it was an utter impossibility, from the nature of my situation, and the time and manner of its appearance, an utter impossibility for me to have done so.-And if I have shewn this, let me ask, where is the individual that can conscientiously pronounce me morally guilty of a malicious and wicked in tention in this matter?-What alone was morally possible for me to do in such a case, I have already offered. The Writer and bona-fide Publisher has declared himself ready and willing to answer for its production. This offer on our part has been rejected; not rejected as to any backwardness in prosecuting the real Author, but only as to the condition of freeing me from implication. Gentlemen, let me not be understood to infer that this conduct in my Learned Prosecutor is ascribable to any other motive than what he takes to be the line of his public duty:-I cannot question but that the practice and usage of the law constitute his rule of action:-yet, gentlemen, I may reasonably presume, that the just principle of that duty, the true essence of our law, is to invoke correction upon, such, and such only, who can be PROVED to have deserved it: and therefore it is upon this ground I contend, that duty should assimilate with reason and equity and not confound the technicalities of Law with the purposes of Justice. To arrive at the true source of mischief the Law wisely admits a power to arraign the suspicious;-but, when that true source is tendered, when the real offender is neither attempted to be disguised nor withheld, where is the justice which would involve the guiltless? Here is an implied offence committed, and to get at the offender, (which surely must constitute the full intent of justice,) the Law seeks its remedy against such as lie within its cognizance; but, if I have been placed, by the sentence of this Court, for the long interval of three years, an almost solitary prisoner in a gaol one hundred and twenty miles distant from the place of the publication of my Paper, and thereby compelled to submit the superintendance of that Paper to an Agent, or cease to publish it, and thus have renounced the means of subsistence for myself and family, I appeal to your consciences as just, as feeling, as honourable men, if the charge of criminal intention can possibly To attach to me, for the publication by my Agent, during my compelled absence, of an Article, which I had no human means of preventing the appearance of. prove this fact incontestibly, and to answer all the proper and equitable ends of public justice, the writer of this alleged libel has, through the medium of his Counsel, offered to surrender himself, if the Attorney General would have consented to prosecute him instead of me, the innocent victim. Is it not, then, inconsistent with the principle of justice, of fair, strict and impartial justice, to persist in confounding the innocent with the guilty? I do not say that the Attorney General refuses to accept the disclosure of the real offender, but he requires that I should confess to what the Record implies, that is, the Criminal Intention of doing what was done by another;-that I should so far forget what was due to the dignity of truth and my own honour, as to tamely acknowledge myself guilty of an act, in which I had not the smallest participation, and withdraw my plea of innocence, by suffering judgment to go by default. Gentlemen, for a resistance to such a mean and dastardly expedient to court the forbearance of the Law, I trust I shall experience rather your commendation than your censure, and that my cause will thereby lose no interest in your consideration. No, Gentlemen, that I am free,-unde niably free from the Criminal Intention imputed to me, I shall ever resolutely insist;-and neither favour nor persecution shall instigate me to a false confession!That I am morally innocent, even my Prosecutor, (from the knowledge of the situation into which his power had thrown me, joined to the representations which have been made to him on the subject), even HE must conscientiously admit:His Lordship himself, from the evidence which I have desired to adduce, I feel assured, must necessarily have perceived the same:-and you, Gentlemen, I trust, will fully shew you join in the sentiment by your unprejudiced Verdict this day. It may be urged, that I brave or insult the Law by proposing to compound with its authority;-that it does not become me to attempt to commute the peril I have incurred;-but, Gentlemen, let it be re collected How I have incurred this awful responsibility which is to burthen me with the faults of another! Let it be remembered, that it arose wholly from compul as a Jury summoned to decide upon a case where any such fraudulent absence was apparent, not be sufficiently guarded against evasion, and decide accordingly?— Besides, Gentlemen, let me ask,—are cases such as mine at all common? Has there ever been any thing similar before the Court? And I may add, is it ever likely to occur again, except probably in my own person, seeing the evil resulting from who have lately engaged the attention of the Law, has any one been placed in a like condition? Have they been forced a hundred miles from their place of business, and from the spot where the offences were committed, (however superior in criminality those offences were acknowledged to have been,)-and this at the hazard of their total ruin, or the awful risk of future liability from the conduct of agents?You perceive, therefore, Gentlemen, that precedent is not likely to be injurious, as my case appears destined to remain solitary, and may be dealt with without apprehension of consequences. I do not say that men have not been banished to distant Gaols, but has it been attended with like circumstances?-Have they been reduced to the necessity of employing literary agents, or of relinquishing at once their means of life?-A man, it is true, may exercise his ideas, though one hundred miles from home, but not be able to correct the ideas of others:-I was not obliged to write, but, what is infinitely worse, I was rendered liable to answer for the writing of other persons;-I was debarred acting for myself, where I could only act with effect, yet held liable to ac sion! It was the Law, as you well know, | sion?-Or would yourselves, Gentlemen, Gentlemen, which took me from my place of business, my sphere of life;-and banished me to a distant Jail! It cannot be supposed, that, by such a sentence it was meant to be inferred, that I should be debarred the means of my existence;-it aimed not at depriving me of the lawful sources of support,-to take from me my prop of life, and the power or means of maintaining my family;-it was not intended to act as a prohibition to the far-it?-Among the many of my profession, ther pursuit of my profession :-yet How continue that profession, with all its local necessities, without incurring this fearful liability to accusation which now enthrals me?-Therefore, Gentlemen, you must readily perceive, that it is from the operation of that very sentence that I am placed in peril here this day :-I aver, that, from the operation of that sentence, and that alone, am I brought to answer this present charge :-because, had it been possible for me to have prevented it, (without doing what the Law could not insist upon, namely, the abandonment of my necessary avocations),-I say, had it been possible for me to have prevented it, I should certainly have done so, and not have incurred the present danger. Surely, Gentlemen, nothing can be more unjust in nature, that that one man should be made to suffer for the acts of another;-for an offence which he neither prompted nor sanctioned,-which he could neither foresee nor prevent!-Ruin undeserved, the Laws of a Just Government should never permit, much less promote. The Subject, who is criminally arraigned for an imputed offence, avowedly committed by another person, surely, Gentlemen, should not be doomed to languish under the in-count for the actions of others:-and the famy of a false accusation, and to perish reproachfully by an unjust sentence.My Learned Adversary may endeavour to set aside this my rational plea, upon the ground of its inadmissibility with the custom and practice of the Court, as well as from the danger of precedent:-that the plea of absence from the spot of Publication is no defence in cases of this nature; and, if once admitted, would set wide the gates of fraud and evasion, to the mockery of justice and the injury of society-But, Gentlemen, will reason, justice, or common humanity, admit of No difference between a voluntary or fraudulent absence, and one caused by compul alternative was the loss of my means of support! With this argument the law may avow it has nothing to do;-but I maintain, that, in the instance before you, this argument grows out of the operation of the Law;-for, that it is to the operation of that law that the present mischief is owing;-when I say this, Gentlemen, I do not mean to vilify either the Law or the Court;-but merely to impress the plain truth upon your minds, that, by reason of the sentence which was passed upon me, (that is, the operation of the Law,) I was precluded the power of superintending my business. (To be continued.) Published by R. BAGSHAW, Brydges-Street, Covent Garden :-Sold also by J. BUDD, Pail-Mall, LONDON:-Printed by T: C. Hansard, Peterborough-Court, Fleet-Street, VOL. XX. No. 20.] LONDON, SATURDAY, NOVEMBER 16, 1811. 609] TRIAL OF MR. WHITE, Proprietor of the Independent Whig. This Trial, the proceedings of which, as reported in the news-papers, have been inserted in the present and the foregoing Numbers of the Register, call for some remarks from me, and, indeed, from every man, who has any portion of the English press in his hands, and who wishes to see that press retain any portion of the liberty that it formerly enjoyed. The The publication, for which Mr. White was prosecuted, through the means of an Information Ex Officio, related to an order for the bestowing of Medals upon Officers, who had been present at the battles, called victories, in Spain and Portugal. Order appeared in the London Gazette, sometime in the summer of 1810. Mr White was in Dorchester Gaol at the time when the publication took place. His Son wrote the article, and it appears, that proof was produced, that the father never saw it, till after it was published. When the prosecution was commenced, Mr. White was still in Gaol; the three years, which, for two former publications, he had been sentenced to be imprisoned, were, as yet, unexpired, when this new Information ExOfficio was instituted against him. The Son, conscious that the guilt, if any, lay wholly with him, offered himself to the Attorney General as the responsible person, ready to abide the consequences. This offer was refused, it is stated by Mr. White, unless the latter, by withdrawing his plea of "not guilty," would lay himself at the mercy of the Attorney General. This Mr. White, conscious of his innocence, refused to do; and, accordingly, the prosecution was carried on against him. I shall first take a view of the nature of the publication, having read it at the time, and having also read it since, with great attention. It was, for the most part, a very spirited and very sensible article, though written without that caution, which the present humbled state of the press and the fashionable clamour against bold expression rendered prudent. It complained that the Medals in question were to be given to every one of a rank above [Price 1s. [610 Lieutenant Colonels inclusive; it asked, why these marks of honour were not distributed also amongst the soldiers; and it then proceeded to make a comparison between the conduct of our government and the conduct of the Emperor of France as to the distribution of marks of honour, and gave the preference to that of Napoleon, insisting that his was better calculated to inspire the soldiers with zeal for the service in which they were engaged. Besides this, the article spoke of the present ministry as weak and corrupt, and used, in this respect, those common-place expressions, which each of the political parties are in the constant practice of using towards their opponents. But, it said nothing more than those parties are in the daily habit of repeating; and, surely, if the youthful author was deceived, he might well be excused if he took the parties at their words. As to this part of the article, however, it might as well have been omitted; it was filling up space to no useful purpose; there was no man that read the article who had not, long and long before, come to a settled opinion as to the real character of the ministry, one way or the other. As to the first part of the article, the Attorney General alledged in his speech against the unfortunate and woe-worn defendant, that the tendency was to alienate the hearts of the soldiers from the service; first, by telling them that they were deprived of their due share of the honors they had won; and, next, more especially by pointing out to them, that the French soldiers were, in this respect, used better than they were. The reader will perceive, that this argument makes no distinction between truth and falshood; for, it is the tendency only that is brought into view; so that, according to the Attorney General, whether the statement were true or false, it would be equally criminal, if the tendency was to alienate the hearts of the soldiers from the service; and, if this doctrine be admitted, every thing is criminal that has such a tendency. Suppose, for instance, a farmer were to see a recruiting party geing down a lane, and were to see the Serjeant, Corporal, and Drummer knock a poor recruit's brains out, and then pick his pockets of his bounty money. Must the farmer not speak of this? Must he smother his knowledge of the murder, lest the relation should discourage young men from enlisting? I saw, some time ago, in the Salisbury Journal, an account of the flogging of a young man in the Militia, because he had married! Was this to be smothered, lest it should alienate the hearts of young men from the service? Thousands of cases might be supposed, and to all of them this doctrine would apply equally well as to the case before us. It has a tendency, we are told, to make the soldiers dislike the army. Well, and what then? or Why, then the army would "be broken up." Oh; no: that is false logic: that is not reasoning. The natural consequence, or at least, the proper consequence, would be a change as to the things complained of by the writer; and, then, so far from tending to make the soldiers dislike the army, the endeavours of such writer would have a tendency to make them like it better than they can now like it; and, of course, these endeavours tend to the strengthening of the military force of the country. Sir Francis Burdett, for instance, is using all his endeavours to put an end to the flogging of soldiers, and it is, I am pretty sure, a cause that he will never abandon 'till he sees it accomplished. But, is he to be told, that these ef. forts tend to the breaking up of the army? He says, on the contrary, leave off flogging and you will easily get plenty of good men for soldiers. And, is it in human nature to believe that he can, as to this matter, be wrong? Will any thing in the shape of man pretend to believe, that soldiers would like the army less on account of the abolition of flogging? But, these publications make the soldiers discontented with the state of things that now is. Well; and has not every speech, at a public meeting, in favour of a petition for redress of grievances, that tendency? Is it not precisely the object of every such speech? For, as long as people are contented with what is going on, why should they petition or remonstrate? This doctrine of its being a crime to excite discontent strikes at the very root of political liberty. Every man who writes or speaks in disapprobation of what is going on comes under the charge of committing this crime; for, what he writes or speaks must necessarily tend to excite discontent against people in power; every petition; every address (except it consist of praise); every thing, in short, which is, in whatever degree, expressive of disapprobation of the acts of the government, is a crime; is an act, for which the perpetrator may be punished more severely than nine-tenths of the felons! What would have been said to a doctrine like this only twenty years ago? This doctrine goes at once to the utter extinguishment of every thing like discussion. To excite discontent against any act of the government that you think to be injurious to the country is not only a laudable mode of proceeding, but it is the only mode of proceeding that has any sense in it. In what other way, I should be glad to know, are you to go to work to correct what is not within your own absolute power to correct? If any of us want a road mended or turned, do we not endeavour to make our neighbours discontented with the old road? And, if I want to see a ministry turned out, how, in the name of common sense, am I to go to work, except it be to raise the public voice or the king's voice against them; and how am I to raise those voices against them, unless I make the public or the king dis contented with them? Oh! blessed Liberty of the Press! We may "discuss," oh, aye, that we may ! We may "discuss" the conduct of the government; but, woe be unto him amongst us, who dares to commit the crime of exciting discontent against it in the minds of those who attend to our discussions. In short, this doctrine leaves us at "perfect liberty" to write and speak as much as we please, so long as our writing and speaking are calculated to produce no effect. But, Mr. White's publication drew a contrast between the treatment, in one respect, of the English soldiers and that of French soldiers, and this contrast was to the disadvantage of the former; it exhi bited the French soldiers as treated, in the distribution of honours, better than the English soldiers. This was a circumstance heavily dwelt upon. This was what appeared to form the grave part of the offence. This was what seemed to give it, in the mind of the prosecutor, its deep die of offence. Whether it was true or not did not become a question; for, the truth was not, according to the mode of prosecution, a circumstance that could be stated in justification. It is very odd to observe with what loyal men, without perceiving it perhaps, fall into the commission of acts of this kind, a remarkable instance of which occurred in the speech of Lord Sheffield, at the last Lewes Wool-fair. He was stating the causes of the unfortunate low price of wool, amongst which he stated, that there were large quantities raised in other coun great advantage over this country of not being burthened with tythes. Now, this not only pointed at France; it not only exhibited to the mind of every hearer a contrast between England and France, clearly advantageous to the latter; but it necessarily implied a strong commendation of that revolution and of those jacobins, against whom England has been so long at war. anxious attention every word is watched which tends to this point; every word which tends to cause it to be believed, that the French soldiers are treated better than ours. Why this anxiety? It was never known to exist before. It is a jealousy quite of modern date; and, really, if it must exist, it does not appear to be very wise policy to be continually dis-tries, many of which, he said, enjoyed the covering it, and especially in such a serious manner. But, is it, then, really an offence in law; is it a matter coming under the description of a crime, to be punished more severely than many felonies; is it to commit an offence of this sort to compare the treatment of English with that of French soldiers and to give the preference to the latter? If this be so, why, then, what belonging to France must we say is better than a thing of the same sort belonging to us? We see no scruple made in imitating the measures of Napoleon in certain points, though, indeed, it may be said, that the imitation is very awkward. We are told, that there are corps of Lancers going to be established in our army; though we were once told, that those Lancers were a set of barbarous ruffians who had not sense enough to know when they had had a sufficiency of beating. We are told that his Royal Highness the Regent wears French Pantaloons when reviewing the troops. And, if it be laudable, as it appears to be thought, to imitate the French as to these matters, why should it be regarded as a crime to recommend the imitation of them in the distribution of rewards amongst our soldiers? If any man had recommended, in print, the establishment of corps of Lancers, he must have done it upon the ground, that the corps of that description in the French service were better than our corps of horse; and, would it not have been a grievous libel thus to hold up the French troops as superior to our own? Would it not have been to endeavour to excite discontents in the army and the nation against the government and the chiefs of our army? If this doctrine be acted upon, it is clear, that, whoever prints a paper, in which a contrast is drawn between any thing English and any thing French, disadvantageous to the former, exposes himself to the charge of criminal libel. French laws must not be preferred before English laws; nor, do I see why French wines should not be liable to the same sort of interdict. Sometimes, however, vastly Here, then, was a field for inuendoes! What excursions might the mind of our active Attorney General have taken here! The author of this speech (printed in most of the news-papers), how came he to escape a charge of endeavouring to subvert the establishments in Church and State? He holds out to the envy of the farmers those neighbouring countries where there are no tythes. And is not this full as bad as to teach the soldiers to envy the French soldiers? Is not this an endeavour to excite discontent amongst the farmers? Is it not, in effect, to inculcate, in a manner not very indirect, the necessity of a revolution like that which has taken place in France? No: it is no such thing; but, it is just as much that, and more too, than Mr. White's was an endeavour to excite amongst the soldiers a spirit of mutiny. And what was to deprive Mr. White of the right of praising the esta blishments of Buonaparte which would not also deprive Lord Sheffield of that right? Had not the former as good a right to complain that our soldiers were not treated so well as Buonaparte's as the latter had to complain that our farmers were not treated so well as Buonaparte's farmers? The object of the war we are carrying on, is, we are told, to preserve us against the endeavours which Napoleon is making to take away our independence; to deprive us of our freedom; to take from us all our manifold blessings, and, amongst the rest, that, supreme blessing, the liberty of the press! If our soldiers are persuaded, that they are treated worse than Napoleon's soldiers, they will, it is supposed, fight for us no longer; the war would, then, cease of course: and we shall lose all our blessings. But, Lord Sheffield would not, it |