had no concern. The defendant had a right to move in arrest of judgment, if there was no legal foundation for the trial. There was nothing in Magna Charta against ex-officio informations, and they had been recognized in the best times after the Revolution, when the liberties of the country were established. Those who had planned and established rational liberty had not considered them inconsistent with it. Parliamentary reform was an entirely distinct subject, and perhaps he ought to have prevented the introduction of it; but he had refrained, lest he should prevent any remark favourable to the defendant. Whether reform was necessary or not, was not the question there; but if it was necessary to any extent, it was his opinion that it had been prevented chiefly by the violent proceedings of its friends. None knew better than the learned Counsel who had tendered evidence of the Manchester transactions, that he could not, consistently with his oath, receive it. If the liberty of the press was to be secured, the question of the truth or falsehood of a publication could not be admitted; for if it were, innocent persons might be punished for inadvertent statements. The true question was, as to the spirit of a publication. The liberty of publishing every thing would be inconsistent with another right, equally valuable-the right of preserving character. Another question had arisen with respect to intention. Intention was no doubt an important matter of inquiry, but it was to be learned, not from acts and declarations at other times, but from the paper itself. Unless the paper manifested intention, they could not convict upon it. If the defendant had availed himself of the locus pœnitentiæ, and recalled the letter, as stated in the supposition by himself, that would have shewed intention, and have entitled him to their verdict. If it had

been a petition to the Sovereign, like that of the seven Bishops, it would have been a very different act. He, perhaps, had been wrong in allowing the defendant to read extracts from his speeches, because it was not fair, unless other speeches were read upon the other side. Their business was with the publication alone. If sedition. was a charge not to be grappled with or understood, all that had been done for years was illegal, and any man might publish any libel against individuals or government with impunity. Quotations from Locke, Swift, and Bolingbroke, had been read to them. The appeal to the two last was unfortunate, for Bolingbroke was not a Tory when he wrote the passage quoted. He had retired, and was discountenanced. Swift, too, was discontented, because he had failed to obtain an English bishopric. The paper in question was no libel, if it had proceeded from the same pure spirit with which the great and immortal Locke had always written. Without the liberty of the press there could be no free government; but it was thus they might calmly point out errors and suggest improvements. In this manner religion had been purified, and the British Constitution brought to its present perfection. It was another question, whether there was evidence of the paper being published in that county. He felt no difficulty upon that point; but if there was no evidence, the defendant would have the benefit of it. (Here his Lordship read the evidence.) The publication was at least caused in Leicestershire. (Here his Lordship read the letter, and made various comments as he went along.) Upon the expression, "Is this England?-this a Christian land?" he remarked, that it was one of the precepts recommended by Christianity, not to judge too hastily. He believed country gentlemen did consider their

estates as retaining fees; and although they did not make so much noise, they would boldly stand forward in defence of the rights and liberties of their country. After reading the passage in which the phrase "bloody Neroes" is mentioned, he asked if this was fair discussion? Was it not a most over-charged description? Could any thing justify it? In the allusion to the abdication of James II. nothing was charged, but a great deal, as it appeared to him, was insinuated. When there were insurrections in several places, the assistance of soldiers became necessary, and at such a time to put them in mind of what might excite disaffection was most dangerous. Our soldiers had fought for the liberties of the country abroad. The defendant said, that the same soldiers who had fought for Cæsar abolished the liberties of their country; but they had fought under Cæsar for foreign dominion-the British armies for our own independence; and they would shew the same spirit again, when the necessities of the country should require it. He had no hesitation in saying that this letter was a libel. Was it a calm appeal, or was it calculated to act on the passions of those who were most likely to be excited? Another paper had been put in evidence; it was a letter from the defendant to Lord Sidmouth, in which he stated, that, although written in hurry, there was nothing in his letter to the electors of Westminster unbecoming the character of an honest man. That it was written in a hurry was manifest, as every one discovered many inaccuracies in point of language; but if it was calculated to do mischief, that mischief must have been intended. More poisonous ingredients were never before condensed in one paper. The Jury immediately found a verdict of Guilty.

Sir Francis afterwards moved for a new trial in the Court of King's Bench, chiefly on the ground of the absence of any proof of publication in Liecestershire, and consequently the irregu larity of the trial having taken place in that county. The plea began to be argued on the 17th June. The Attorney-General then urged as follows:

The author of the libel was guilty of an offence as well as the publisher; and where a man was charged with writing and composing, it was neces sary to lay the venue in that county in which the act of composing or writing had been performed. In the case of the King v. Lambe, which would be found in Coke, it had been held that the contriver, the procurer, and the publisher of a libel, were each and all guilty of an offence; and Lord Holt, in a subsequent case, the King v. Bere, had held that the writer was the contriver. Upon the authority of those cases he should contend that the composing a libel was in itself an of fence; and if the publishing only constituted the offence, as had been contended by the counsel for the defendant, to what end were the writing and composing charged in the indictment? It had been said by the defendant's Counsel, that the proposition which he was maintaining would go to the length of saying, that a man who wrote a libel and kept it in his desk would be punishable. Was there any thing very extraordinary in that? What was the law in cases of forgery? It had been held that a man who committed a forgery, and kept it in his desk, without any publication at all, was guilty of felony; and, in the case of the King v. Croker, a man had been convicted under such circumstances. Although proof of the corpus delicti, of the writing in Leicestershire, would be sufficient, yet he was prepared to shew that

evidence of actual publication in Leicestershire had been given. It was proved that the letter had been written in Leicestershire, and that it had afterwards been sent open in London. How had it passed from one place to the other? Had it been sent by the post, or had it been delivered to some person in an open state? If it had been put into the post, he had authority for saying that the act of putting it into the post amounted to publication: if it had been delivered open to any person, the publication was obvious.

Mr SCARLETT, at considerable length, supported the rule. He trem. bled even at the thought that there was a bare possibility that the Court might concur in the arguments of the Attorney-General. The principles which the Attorney-General had broached on that day had slept in darkness for fifty years, and certainly he had never expected to have heard such principles attempted to be revived. That attempt, however, had been made, and made with a degree of energy and zeal which could not have been surpassed even in those fatal times which had witnessed the operation of those principles-in times which England had survived, and which he had hoped that England had forgotten. He did not deny the effect of the cases of "the King v. Paine," and "the King v. Bere ;" but those were cases which had occurred before the Revolution; and he had firmly trusted that the opinions expressed in those cases-opinions founded upon an indistinct conception of the nature of the offence, and upon a strong desire to support a form of arbitrary government-had long since resolved themselves into the more temperate principle, that the crime of libel consisted in the publication. Even, however, upon the dangerous, the horrible principle contended for by the gentlemen on the other side, he would shew that a new trial

ought to be granted in the present case. The charge against the defendant was for composing and publishing-he would put the causing out of the question, for he who caused the composing or publishing did, in effect, compose or publish a malicious libel. Now the averment could, as it stood, mean nothing but that the composing and publishing took place in Leicestershire; and therefore, if, as the Attorney-General said, the composing itself constituted a crime, or the composing formed one part of the crime, and the publication another, the defendant ought at all events to have been found guilty only of composing or writing in Leicestershire; and the verdict, quoad the publication, ought to have been a verdict of acquittal. If the argument on the other side was approved by the Court, the AttorneyGeneral would say next, that any man who found a libel became subject to punishment, unless he destroyed it upon the spot or carried it before a magistrate. Authority even for that position might be found in Lord Coke. According to the case of the King v. Paine, if one man wrote a libellous epigram, and another took a copy of it and kept it for his private amusement, the man who so kept the copy would be punishable, because the thing might at some time afterwards be published. It would be about as reasonable to indict a man for keeping a gun in his house, because at some future period a person might be shot with it. According to the same case, if one man wrote a libel, and another approved it, the approver was guilty. This case was really worth the attention of his learned friend, the Attorney-General; it created a new class of offenders. The principle laid down by Lord Holt, in the case of the King v. Bere, was no less detestable. According to that case, a man might purchase a book in a shop, and place it in his

closet; and if it were found that that book contained matter libellous upon any human creature, the onus of proving an innocent intention was thrown upon the unhappy possessor. What a position was this! There was not, perhaps, a book in the libraries of their fordships, not even the Prayer-book itself, from which something libellous might not be extracted-libellous upon some individual, some government, or some system. The very notes which he (Mr Scarlett) was then taking might, in due time, if not destroyed, become libellous. They might by accident be locked up among his papers, and, after his death, his posterity might be prosecuted for possessing them.

On this and the following day, Mr Scarlett endeavoured to shew, by many cases and arguments, the nature and course of the error into which Justice Holt had been led. The term being closed, the case was deferred till the 16th of November, when it was reargued at great length on the same side by Mr Denman. On the 27th of November, the Judges delivered their opinion.

Justice Best gave a view of the proceedings on the trial. The cause was most ably defended in person by Sir Francis Burdett, who said little upon the point of venue, but rested mainly upon the impossibility of his entertain ing the intent imputed to him by the information. The Jury found the defendant guilty. A motion for a new trial has since been made, in which that gentleman has had the assistance of the ablest counsel that any bar or any country could produce; and the matter is now in a fit state for decision. Three objections only were taken when the rule to shew cause was granted; a fourth has since been added, of which, though not taken exactly in time, I wish the defendant to have the full benefit. The first of these objections, I believe, is, that there was no evidence of pub

lication in Leicestershire. Upon that part of the case I have this to observe

if there was any evidence, of the effect of that evidence, it was not for me to judge. My duty was to put it to the Jury-theirs was to judge of its value. The rule of evidence is the same with plaintiff and with defendant; and it will hardly be contended that a judge could take upon himself to judge of the effect of a defendant's evidence; if he could, it would be a trial by judge, and a trial by jury no longer. There was, in my opinion, such evidence on the part of the prosecution as raised a strong presumption of publication in Leicestershire; and no attempt to rebut that presumption being made, it became, in my mind, conclusive proof. But I have been told that there can be no presumption in a criminal casethat we are not allowed to presume guilt. General propositions are dangerous to deal with. No doubt, we are not to presume without evidence; the law says that we shall not imagine guilt, and, without evidence to raise presumption, such presumption and imagination would be one. But, upon reasonable evidence given, I deny that we are not to presume in a criminal cause as well as in a civil case. In fact, as regards the law of evidence, there is no difference between civil and criminal cases; and there needs no difference if the rules of evidence are the rules of common sense. I beg to say, that there is scarcely a criminal case, from the highest to the lowest class, in which Courts do not act upon presumption, and that for the reason laid down by my Lord Mansfield. " It seldom happens," says that noble lord, in the Douglas case," it seldom happens that absolute_certainty can be obtained in human affairs, and therefore reason and public utility require that judges, and that all mankind, in forming their opinions of the truth of facts, should be regulated by the

superior number of probabilities on one side and on the other." And throughout our criminal law we constantly act upon this principle. In treason, upon proof of rebellion, or endeavour to excite rebellion, we presume intent to kill the King. In cases of homicide, although the act of killing may be perfectly innocent, we presume that malice which is necessary to constitute murder, and throw it upon the prisoner to relieve himself from that presumption. In cases of burglary or highway robbery, possession of the goods is presumption of the crime until that possession is accounted for. I admit that, in cases where presumption is attempted to be raised for the purpose of proving the great body of delinquency, there the presumption ought to be strong, and such as should leave no rational doubt upon the minds of a Jury; but upon a portion of a case affecting merely the question of venue, and which leaves the great body of guilt untouched, I would deal with presumption even as I deal with it in the most trifling cause that ever occupied the time of Westminster-hall. I say that, even supposing the libel to have been sent by post, such sending is publication. I deny that the pub. lication of a libel implies manifestation of its contents, or that the word is so used in the law of England. We hear of a man publishing his will; we speak of publishing an award; but it is not supposed that such a man reads his will or his award; he merely declares that instrument to be his. So, in a case of libel, if a man does the last act which it is for him to do towards the accomplishing of the mischief he intends, he publishes. The moment he passes the libel from his hand, his control of it is gone; he has shot his arrow, and, whether it hits the mark or not, no longer depends upon him; the locus pœnitentiæ is over; the body of

the offence is committed; and that moment, upon every principle of common sense that moment he ought to be called upon to answer. What would be the effect of a contrary holding? If a man wraps up a letter or a newspaper in one county, and gives it to a boy to carry into the next, who is the publisher? Would it not be contrary to common sense to deny that the man who sent the paper is the publisher ? Suppose a man writing a libel in England upon the King of England, and sending it to be published in Paris or Petersburgh, where is that man to be punished?

The other Judges concurring in all the material part of this opinion, the motion was refused.

The SOLICITOR-GENERAL. As it was not to be expected that Sir Francis Burdett should be in daily attendance during the continuance of the long argument which had been just terminated, and as it was impossible for him to be acquainted with the result to which it had been just brought, he (the Solicitor-General) should not press for judgment against him (Sir F. Burdett) that term, but would allow the matter to stand over till the next.

SIR CHARLES WOLSELEY, BART., AND JOSEPH HARRISON, FOR SEDITION.

Mr Lloyd stated the indictment to be against Sir Charles Wolseley, Bart., and Joseph Harrison, schoolmaster, on two grounds. The first count charged that they had excited to tumult and insurrection, by holding a numerous meeting on the 28th of July, and addressing seditious words to them, calculated to bring the government into hatred and contempt. The second count charged that they had agreed together to stir up the people to tu