The King v. Sir Francis Burdett. LAW REPORT. COURT OF KING'S BENCH, WESTaSTl Nntz (It Banco.) -mu;unex ecuay we Daelieve, the judges dc.~ livered their opiniotns in t hig l yinteresting ca he. Mr. Justice BEST read his report ot' the case, and proceeded. This cause -me on for trial before wme at Leicester. On the part of the prosecution it was proved bv M.r. Brook-es that be received the libel, ana I ttiink it fair to presutne that he received it at his house, No. I 10, iijthe Strand. The remembrance of Mr.Brookea,as to the xpan- ncr in which the libel came to his hands, was extremely inaccumte. It came in an envelope, which envelope had since been destroyed but whether there was any direction upon the.envelopeJ.Nl= Brookes could not distinctly recollect; to the best of bis umemoy, howevr# it was addressed to Mr. Bickersteth. 'Where Mr. Thekersteth lived or who he was, farther than that he was a professional.friend of thc defendant, did not appear. There was no seal, or trace of seal, upon the envelope; nor did an post-mark appear. Upon reading the letter it was found to be dted at Kirby-park, which is situated in Leicestershire, and near the borders of the county.; but the, lart fact -does not seem to me to - he- matei-. t- i_a tion to the evidence of the date. which I thouht au"lient, it was proved that Sir Francis Burdett was in. Leicmstersbirc on the 22d and 23d of August, the time at. whicht the letter was written. The letter must have arrived in Iltendon, at lstest, early in the morning of the 25th; from the distance, iL iinst. have left Lecstershire on the 24th ; and it did not appear-that the dv- fendant had quitted Ldeestershire previous to the time of publicatioft in Lendon. It was furt'ner proved that the defendant, in -a leter to, Lord Sidmouth, had avowed himself the author Df the publicatioa. in question. At the close of the case for the iprosecution it was submitted to me, by MAr. Denman and by iUlr. Phillips, that there was not evidence to go to the jury that the libel had been published. in Leicestershire. To me it occurred that there was such evidence upon that point as I was bourid to leave to the jury; and such evidence as appeared to me then, and as appears to me nOW, to require an answer; and such evidence as, unanswered, noe c.nly warranted, but called upon them to find that fact which in the event they did find. Such was my statement to the learmetl counsel: they m2ight have clled rebutting evidence had they thought fit to do so. Trhe case was most ably detended in Ierson. by Sir Francs Burdett, wbo Raid little upon the point of venue, bue rested mainly upon the impossibility of his entertaining the inteat imputed to bin by the information I left two questiens to the jury: first whether there had been a publicaion of the paper in Leicester_ shire; second, whether the paper, under the crcuecstances of its publication, was a libel. I read to them the evidence; and I stated, I believe, the opportunity which the defendant had of answering that evidence by evidence with which I thought lie must of neces- BlLy ut prepareu. J tLO tIfein tnat ttie question of intent was pecu. liarly for their consideration ; but I added, that the intent was to bhs collected from the paper itself * and that, if they thoutight it likelv- fto produce disaffection in the countrv, they n4ust take the dfenld- ant to have written it with that view. If such had been the intent of the defendant, in my opinion tbe paper was M libel. At the same time I left it to them, as I was bound to do by the act of Parliament: I told thesn that they might either adopt my opinion, or find such other verdict as to them should eent consistent. The jury found the defendant guilty. A motioti for a new trial has siuce been made,in which that gentleman has had the assistance of the ablest couubel that any bar or any country could produce; and the matter is Row in a fit state for decision. Three ob- jections only were taken when the rule to tshow cause was granted; a fourth has since been added, of which, though not taken exacsly 1o tim e, I wish the defendant to have the full benefit. The flm-t of thes objections, I believe, is, that there was no evidence of publication in Leicestershire. Upon that part of tlhe case I have this to observe- if there was any evidence, of the effect of that evidece 'it was not for me to judge. lM!v duty was to put it to the jury-theirs was ttP judge ot its value. 'lhe rule of evidenee is the saute with plaintifr and with defendant; and it will hardly be contended that a judze could take upon himself to judge of thc effect of a defendant's evi_ dence: if lie could, it woulA be a.trisl by judge, aud a trial bv jury, no longer. There was, in my opinion, such evidence on the part ot the prosecution as raised a strong prcsumption of' publication in Leicestershire; and no attempt to rebut that presumlption being made, it bcailic, in min ,nind, conclusive proof. But I have been told that there can be no presumption in a criminal case-that we are not allowed to presume g;ilt. General propositions arr dangerous to deal with. No doubt, we are not to pretine with- oat evidence; the law sys tnit weshall not imagine guilt, and,. without evidence to raise presumption, such presumption an2t imagination would be one. But, upon reasonable evidence given, l dleny that we are not to presume in a criminal cause as well as ui a civil case. In fact, as regrards the law of evidence, there ia no difference between civil and criminal cases E anid there needs no, difference if the rules of evidence are the rules of common sense. I beg to say, that tbere is scarcely a criminal case, from the highest tao the lowe.t class, in which Courts do not act upon prestunotion ; andi that for thee reason laid down be my Lord MAltsfield. "It seldorm happcns"-.ays that noble bord,in theDouglas case;-" it seldom hap. pens tliat absolute certainty can be obtained in humian affairs, aia& tiherefore reason and pubhc utility requi,e thatt judges, artl that all mlankind, in fortning 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 constantlyv aet upon this principle. Irk treason, upon proof of rebellion, or en- deavour to excite rebeaion, we presuue intent tokill the King. Ih cases of homicide, although the act of killing may be perfectly in. nocent, we presunme that inalice which is necessary to constitute murder, and throw it upon the prisoner to relieve himiself from tha: presutrmption. In cases of bur gla or highway robbery, possession. of the goods is presumption of the crime untfi that possession is accounted for. I admit, that, in cases where presumption is at- tempted to be raised for thie purpose of provmng the great body of de- linquency, there the presumiption ought to be strong, and such as should leave no rational doubt upon the minds ofa jury; but upon 2 portion of a case affectirg nmerev tbb question of vetimc, ana whicd lcaves thc great body of guilt untodched, I woald deal with presutnp. Lion even as I deal withi it in the most trifling causc that ever occupie the tnie of Wcetinjpa?er-hall. If. in thepresent case, my presamptioni bad been wrong,a simple answer was in the hland of the defndetalnt. He camc into Court prepared to dispute the veCte; and, thersfore, I muts. presume that he canie with evidence to enable him to dispute it; he had only to put Mlr. Bieliersteth irntothe box, and all doubt by that; gentleman's evidence weuld have been removed. 1 told the jurv that there was presumptive prcof thbt the defendant had parted AwitI the paper in Leiesttershire, and that be had parted with it open; but I shall presenty state that, wbethe he delivered it from his hiand open or closet, it was, in law, a publication. Mr. Phillips, in his excellent book upon the Law of Evidence, speak_ ing of presumption, says, that the civilians define it thus: pri-epuptio 7i hil aliu4 est quint arg*umenet r verisimile, comn.nuoi secss peC- ,epf,un, cr co quad pLeruaqne fit oa 'fieri iideffigifur; and this is not only the definitioi of civihans, but of every man possessing conimon sense. Presumption is neither mtore nor less thn, the balance of probabilities i then let us see what are the facts in this case to war- rant a presunmption that thp paper was, delivered open in Leicester. shire. First, it is derided, in the case of Dr. Jiensey, that the date- of a letter is evidence as to the place where it was written ; asd the letter in question is dated Kirby-park. If the letter arrived in towva early on the 20th of Auguist, it must have left Leicestershire in the course of the 24th; and tle probability is, that it was sent. away on the 23d. Now, the defendant is not only proved tos have been in Leicestershbie on the 2&L; but it is proved that he vvas riding out on that dav, not as if travellisg to London, but riding on horseback in the neighbourhood of his own residence. The natural presumption, therefore, is, that the letter quitted the hand of Sit Sfrancis Burdett in Ieicesttrshire, and travelled into ,liddlesex either by the post or by the hand of a third person. If Sir Francis had sent by post, he would, asa member of pseliarnent, have ad- dressed his letter at once to Mlr. Brookes ; or, if he had sent it to MSr.Bickersteth,in the first instanee, for inspection, there would have been the'postmark upon the envelope; but Mlr. Brookes not only fails to ptove seal or postmark, but he says that he does not cven know whether there was a direction. We have had a good dea of ebjeCtion talen to presumption in this case; hut here, asit seems to me, we are called upon to presume by the other side. I take it to be a general and an admitted rule, that, if a paper is found in a given 5tate I must,presume it to have been always in that given state until the contrary shall be shown. I find this paper open ahy ami I, withouLevidence, to piesume that ever it Was closed ant when the defen anti if thefact be'so, has ample means of de- monstrating it? I am to take the thing as it is, until you sbow it to bave been otherwise ; and it is open. Had the wlhole been enclosed upder a third cover to .r. Bickersteth, a note of a very different de- scription would bave accompanied it. For what is it that we have ? Not a letter in terms of familiarity, desiring AMr. Bickersteth to read the enclosuire, and to give his opinion upon it; but n brief di- rection, " forward this to Brookes." Is that the mode in which the defendant would have vrritten to a gentleman 9 No but it is ex- actly the memorandum which lie would be likely to make upon the paper if he had personally delivered it to Mr. Bicker- &eth in l,eiestershire. From these circumstances, I repeat, an inference was drawn; of that infercnce the defendant was aware. If it was an erroneous inference, he had the power of con- tradicting it; and, failing to do so, I sav he admits it to be a just one. WVe have been tolL-and upon that argument much stress has been laid_that it waS the duty of the crown to call IUr. Bickersteth. How could the crown know that there was such a person in exist- ence? They could only have obtained that knowledge from Mr. Brookes; and every one who saw Mr. Brookes upon the trial must be'satiafied that the crown had little to expect from the communica- tions of that gentleman. The rule of evidence is this:-he who knows of the evidence, and has the evidence, is expected to produce it. Still, however-even admitting theletter to have been sent by post -still I maintain that such a sending was publication; and,ifso,it is absurd to say that the defendant his been prejudiced, because his case has been left tto the jury in a manner more favourable than he was entitled to demand. I say that, even supposing the libel to have been sent by post, such sending is publication. I deny that the publication of a libel implies manifestation ofits contents. or thatthe word is Fo used in the law of England. We hear of a man publislzing his will; we apeak of publishing an award; but it is not supposed that such a man reads his will or his award; he merely declares that instru. ment to be his. So, in a case of libel, if a man doesthe last act which it is for him to do towards the aceoinplisbing, of the mischief he in- tends, he publishes. The moment he passes the libel frem'his hand, his control of it is gone; he has shot his arrow, and whethrer it hits the mark or not no longer depends upon him: the locues penitentie 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 hold- ing ? If a man wraps up a letter or a newspaper in one couatv, and gives it to a boy to carry into the nest, who is the publisher? Would it not he 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 he punished ? I insist that there is authority for the principle which I maintaini. In the case of "the Kiing v. Watson," which I mentionel at the trial, the prosecutor contended that the post-mark was proof that the letter had been put into the post at Islington, and that such puttinz into the' post amounted to publication. In that case Lord Ellenborough he]d, not that putting into the post did not amount to publi- cation, but that the post-mark d'id not afford sufficient proof, because a post mark-might be forged. In another case, "the King v. WVillianXs," which was a ease of sending a libellous letter with intent to provoke a challenge, the same learned judge held that putting the letter into a oest-office in Aliddlesex, with in- tent that it should he delivered to the prosecutor elsewhere,was a suf- ficient publication in Mliddlesex. . That was an indictment for send- ing; but I contend that between sending and publishing there is no difference, and my opinion is confirmed by the dictum of Lord El- lenborough, who says, not that this is a sufficient " sending," but that it is a sufficient publication. There can be no doubt, I repeat, that if the letter was s-nt by the post from Leicestershire, sufficient pubrication would have etisted; but upon that particular point, had ihe law been dciubted; it Was competent to the defendant to demand a special verdict as'to the fact. 'Tle learned judge then proceeded at considerable lengtl tb'epnsider the civil law, as relating to cases of libel, declarinz, however, that h'e should not, in a criminal case, have quoted the ciyil raw, had not that course been taken by the counsel fortie defenplant. The,civil law, however, his lordship thought, completely bore himn out in his argument; for what was the wor3 u.d to express publication ? The word was edidere. But edidere would not express a manifestation of contents; on the con- trary, when :such discosure of contents was imputed, mani- fe.rko was the word employed. Edo, generally, was used to cx. Dreas n uttermg it was constantly so used. Every man who had read Cicero must know that it was the practice of that writer to place at the latter end of his sentences those words -which had the moost powerful signification ; and in his treatise Dc Legi6bs,speaking of the practice of magistrates going out of office to nsublish and manifest that which had occurred in their time, he said, " Hwe detur clira censoribus quaidoquidezn cos in republica .remper volumu.r esse, apnd cosden, quii ma-istratu abieruntii edant ct expowut quiid in magistrat1t gesserint. The words used 're edatt e etrpontauit. The civil law, if it was to be referred to, confirmed the learned judge's notion of the English law ; the word ediderit was equal to the word publication in theEnglish law, which nierely signifieddelivery; therefore he contended,although the defendantshould have delivered his letter wrapped in a hundred enve- lopes, still there was to all intents and purposes a publication. WYhere then had that publication that putting into the post-office, taken place ? To call upon the Court to suppose that the defendant had riddes into-Rutlandshire, the adjacent county, and there delivered his letter, was desiring-the Court to presumea tact without one point of evidence to found suck a presumption upon. But, had it been scnt by post at all, the seal would have appeared, though broken. "I now come," continued his lordship, "to the second point upon which the presentapplication has been grounded-the reiection of evidence as to the circumstances Which had occurred at Manchester. Upon this point there has been a little difference in the opinions of she learned counsel who have apoeared for the defendant. Mr. Scar- leaL says tht that evidence should have been Teceived for the pUt- sose ot explaining the libel; Mr. Denman, who noved for the rule, m:noved uPon no such ground. M#tr. Denman maintained that the evaidence,should have becen received, on theground that the rule that truth may be ahlibel applied only to libels upon indivi-urils, and not to libels of a sed; tious charnter. But I will take it upon Alr. Scar- lett's ground, that the evidence should nave been received for the pur- pose of exrlanation. I say that the libel needed no explanation. 'hatevef maight be the nature of the occurrences at Mlanchester, still any parts of this paper would be grossly libellous. lEvidence from Manchester could not Prove the commencement of " a reign of terror and of blood." Such evidence could not apply to the obhervation as lo tearing the living flesh fro the bones of soldiers. It could not awply to that which I consider as the verv worst part oS this libel- the allusion to the abdication of James IL-because it supposes that what had taken place at Manchester was likelv to occasioIl a similar abdication at the present timle. 'rhe case is perfectly distinct fromn the case of " the King v. Horne." In that case it was charged against the defendant that be had libelled the King's troops, and he called evidence to show that the individuals wheon he had liselled were not the King's troops. 'rhe evidence tailed; but it was adnmit- ted only to remove an apparent aimibiguitv. But in this case there is no ambiguity, no obscurity. Nothing whichl passed at Mllan. -chester could touch this libel. Suppos.ag even all to be true which the detendant asserts to have passed, still the paper isi a libel. 1 shall now briefly advert to the third po'tit upon v hich the rule in -this case has been granted-that I took upgn myself to lay down to the juzy the law upon the question of libel, and that, sinCe the sta- 'tute, the 33d GPeo. III., I was not warranted in so doing. Upon lhat partof the case it is necessary that I call back the attention of the Court to the expressions which were actually used. I told the ju-ry that, if they found the intention stated, in my opinion the paper was a libel. By the statute of Gco. II. I was bound to tell tlenr so. lt must not be supposed that the statute of G;eo. Ill. has made the qucstion ot law a question of fact: if it had done so, it would have created an anomaly instead of remov- i"g one. Of the qucstion of law in the ease of libel, as of all other questions of law, the judge is judge; the jury having still thc power tn -f- hiq direction. if they thltik fit to do so. All thiat is done by the statnte of Gleo. 111. is to take that question out ot tne narrow path in whicl it was formerly presented to juries when they found nothing but the fact of publicatioll, and the truth of thle inuenidoes; and to enable them, as in other criminal cascs to give a general ver- dict. The objection upon the fourtlh point-the objection that my direction was unjust and partial-is an objc tion which I am sorry has been taken. I am sorry for the objection, not on imy own account, but on account of the gentleman who tool it. I am sure that what he said was said in the heat of argument, and could not have been inten-ded to give pain to nme; nor should I lhave mentioned it, but thlat I am bound to reply to the objection in the terms in which it was made. I believe that thc words were uttered in the heat of ar. gurnent; and I am sensible that no man is imore likely to require in- dulgence for words uttered in the heat of the momnent than the indi. vidual who is now addressing himself to the Court, and whose obser. vations have frequently given more pain to hiinself upon reflection thiani at the time whentbey were uttered.they could have occasione(d to any one else. TVith regard to the exprcssions which I used upon the trial, I remelib&r thlen only as stated by t4ie learned counsel at the bar; but I canndt persuade myself that they were either unjust or partial. It had been urged that I suggested nothing in f4vour of the defend- ant. Such vwas the conduct of the defendant at the trial4that, had any opportunity for such suggestion occurred, I should gladlv have availed myselfof it; for it is due to that gentleman to say, that no man ever conducted himself with muore xespect. towards a judee, or evinced more completely that the mirt perfect freedom of discws dion is compatible witi tllc niost perfect urbaniity of manner. No man in the world could be more likely than the defendant to pre. possess a judge in Mis faQoOr; but no suggettion itn his favour oc- curred to me, nor dAoes any occulr to me at this day. WVhoever reads such a libeJ ais that in qucstion, emanating from the pen of a man possessing fortnle, talent, connexion, and situation, miust be satis?ed that it would he diflicult to discover any circumnstanice of extenuation. I t6ld the jury that whiichi I shall tell every jury until I am convinced that I aum in error-I told the jury to consider at. tentively whlether the publication was addressed to the passions of the people, or to the soler diseretion of mankind. It', romii the lan- gusge of the paper, they thought it was addressed to the reason of the people, then It was no hibel, but if, instcad of argusment, it con- tained inflarmation, then it was a libeL That, I take to be thc ex- tent of the liberty of the press a man may ilistruct, but he must not inflame orvituperate Wl vi vituperation begins, there is an end of discussion, escept in that court in which tite vituperator is called upon to ans ser tor his conduct. If such conduet were permit- ted, theliberty of thepress would speedily destroy all other liberty; it wvould destroy all character, and sedition and rebellion vould be its immediate effect. I will not apologize for the time which I have con. sumeald for this is a day in which, upon subjects of this description, judges arc called upon, not onlv to deliver their opinions, but to blho-v thit those opinions are well founded. AVIieiter my opinioni is ,veil founded I do not know. I think it is. Of thi I am certain- I have been actuated by no motive but a desire to dischlaige ny luty with that firimness which, as it appears to me, the present times de- mand; not forgetting that I am acting in a countrv wlhere evcry m a- gistrate, even to the King himself, is remindedi daily, by the oatl which he has taken, that the justice he dispenses is to be adminis- tered witlh mercy. Dir. ,justice HOLROYD notwithstanding the ability by which the motion had been supported, was of opinion that the rule ought not to be male absolute. As it seemed to himu, it had been proved at the trial that the letter had been published, and that the defendant his lordship for recansideration ; but, in the caso of '; the Kinli, v. Williams," it should be reniembered th at the chaTge was for send- ing; and no doubt a thing must be taken as being sent by a man froml the place at which it parted from his person. The decision in " the King v. Collinton," in whichi the opinion of the judges had been seven to five, warrantce thc learne jludge in declaring that de. livery sealed was not so clear a publication as to bar the defendanit of his appeal to a court of error; and of that right he certainly had hitherto bcen barred, becauise, the case of sealed delivery nit having becn presented to the jury, no opliortunity hatl been presented to him of requiring a special verdict. Another point which had been raised in the cause was, that the writing, composing, anti publishing of a libel, formiie one entire act; and that if part were done in one county, and part. in another, the inclictmlent might be supported in either. For sonic timic the learned judge had himself been of that opinion, and had upon that ground resisted the granting a rule to show cause ; but upon further consideration? and upon thc discussion which had taken place, 'lie tid not think the point so clear as to preclude the necessity of putting it upon the recorl. Trake it to be proved that thc defendant had written in Leicestershire. and the intent charged in the information could not be denied, but lie (Mr.Jnstice Bayley)thought that the whole of the corpusdelicti must be in one and the same county; and saw no difrerence between such a case as the present and a case of felony-no difterence, in law, be. tween felony and misdemeanour. '1 lie learned judge then went into a variety of authorities for the purpose of distinguishing those collateral circunistances, as to which a jury, out of their own county, could in- quire, fronm tie main facts of the offence, into whicil they could not, in such a position, inquiire ; and observed at some length upon the cases of nuisanice in two several counties relietl upon by the counsel for the prosecution. IJUion thc whole of those cases and authorities, he thought that whether of a misdlemeaniour consistinig of' several flicts, an(d those facts lying in differentcounties, one jury could enter- tain jurisdiction, was at least a doubtful point: lie said only that it was dotibtful, because, even if there were only a doubt, the presbnt verdict couldi not be permnitted to stand. 'I'he only renainiing question then was, whethier, iidependent of publication altogether,writing pcr se aniounited to an oft'cnce. At present the record before the Court was not in a state to raise that question. The record stated that thie de- fendant wrote, composed, and published; and the charge miust be altered to wvriting an(d composing> osly, before that question would be ripe for judicial decision. For the rueasons whiich ho hatl offered, the learn ed Judge concluded, he thought the prcsent verdict ought not to stand; and that, unless it were altered in the wav which he hiad intimated (so as to aft'utd thse dlefendant hiis remedty in a court.of error), thle rule for the new trial would properly be made absolute. The [to eD C15tEE- JusricE was of opinion that ttietule must be discharged. t habd been conitend-led that thc wvhole crine of libel was in the publication; but the decision ot thlat question wvas not mia- terial, because the present case was one of libel published by the authority and procurement of the author. Upon that point there. fore, he should only say that many of the authorifies cited ?rorn tie uivil law to prove that principle,had appeaTed to him to prove (lirect- ly the contrary. It was true that, in trials for libel, publication had generally been proved, and that those trials ha(d commonly takeni place where publication liad occurred; but that arose from this circumstance-the place of liublication was, in general, well-known, whiile the place of writing was frequently a matter of doubt. To him it did not appear that publication necessarily meant the conmianication of contents to a third person. It was held was the author of it: the proof had been clear and distinet, and such as to warrant the verdict which had been pronounced. rhe contents of the paper aflbrded sufficient evidence that it had net been written for the purpose of being kept in the closet, but with a view to speedy publieation; and the locu.s peniteWti& vas gone the moment the retter was sent to London. It was an admitted fact that the letter had been written at Kirby-parl; and his lordship was of opinion that writing with intent to publish was a misdemeanour triable in the county vhere the writiing had taken place, even al. though the piublication ahould have occurred in another county. How far the case of " the King v. Bere" could be borne out in law, he had not considered ; nor did he mean upon that point to give any opinion, because that case was quite distinguishable from the case before the Court. The present case was not a case in which a libel being written by one person has been published, in the wrong of thbat individual, by another. Here the writing was avowed; and where the writing was avewed, writing without publication was a punishable offence. It had been argued tlhat, supposing the defendant to be found guilty of composing and writing, but not of publishing, the in formation did not contain a sufficienit al- legation to warrant sucI finding, because it did not state that the defendant wrote with intent to publish. Ile thought that the information was sufficient, and that it went even bevond the imputation of intent, because it charged that the defend. ant, intending to excite sedition, &c., vrote, composed and pub- lished, and caused to be written, composed, and pubtished. It was the law in cases of conspiracy, and of nuisance, that a jury might have cognizance in their countv of criminal acts done out of that counity ; and he took the law of hibel to stan(d upon the samne footing. A C irther ground insisted upon as a reason for a newv trial was, that thelen,.. of1 judge, at thc assize, had instructed the jury to presume a publication _ T eicestershire. As it appeared to him (Mr. Justice H iroyd),the learne.. judge need not, by law, have gone so far in favour of the detendant; *nd that the verdict ought to have been the same whethler the publication took place in Leicestershire or in any other cour.ty. Doubtless no man couldl be convicted of a crine upon mere naked presumption; and such was the presumption 6oposed in the case of the seven bishops-mere conjecture ; but crimes of the highest character were frequently foundl upon sufficient presumption, and the safety of society demanded that it sheuld be so. In the present case he thought there had been abundant evidence to warrant the presumption that a publication in Leicectershire has talCen place and, in a late case, the case of Sir Manasseh Lopez, tried before him (iMIr. Justice Holroyd), in which a question had arisen whether the act of bribery h.ad been committed in Devonshire or in Cornwall, the tierlaratinn nf 9ir Manqsmeh Lonez with resDect to the man bribed- " I had him here," speaking in bevonshire-had been held sufficient to fix the venne in that county. In the present case the presumption clearly was not only that the paper had been delivered in ILeicesterslhire, but that it had been delivered by the defendant to some person in the same state in whlich it was afterwardL delivered to Mllr. Brookes. flis own opinion, indecd, the learned judge continued, was that the letter had been received it) Leicester, by Mr. Bickter- steth, fer otherwise it would have been sent direct to flr. Brookes. Withregard to the meaning of the word publication, evidenci was f-requently given of the purchase ot a libel in .i"r. Carlile's shop but proof had never beenl demanded that the purchaser ha(4 read the libel at all; still less that lie had read it on the City side of Temple. bar. No one had ever dreamed of inquiring further thani the act of selling it being understood that the actVot parting with the libel gave sufficient jurisdiction to try the crine of publi. cation. The learned judge concluded by declaring that, upun at- tentive consideration, he found no cause for disagreeing either with the summing up or with the dirvection of M r. Justice Best; and he was, therefdre, of opinion that tio new trial should be granted. DIr. Justice BAYLEY, in sevenil particulars, agreed with the rest of the Court. As to the propriety of rejecting evidence as to the tranTactions at Manchester, he hall no doabt; and lie knew but one description of case in which proof of the truth of the libel could be admitted; that would be in the case of pne man imputing to another that he had -been tried and found guilty of any felonious offence. There proof that the fact had happened would be an answer to the prosecution ; but that was a case widely differing from the case be- fore the Court. His lordship entirely agreed vith his learned brother (Best) as to the propriety of his giving his opinion to the jury upon the question of law, and of the intimation that they should take the law from sidm unless they were satisfied that lie was wrong in his opinion. Tho old and simple rule was this-Ad questionem i:ris respondet judea,; ad qlestianzern facti responidenit jara- tores. If the judge was mistaken, his error could be set right by a motion for new trial ; but if the jury were wrong, atnd wrongfully returned a verdict of acvuittal, that error was incurable. No jury could, lie thought, entertain a dotubt that the paper in ques- tion was a libel, andl thatit was publslied with the intent averred in the information. Upon all these points he agreed with the rest of the Court; and his difficulty, which, from first to last, liC had been unable to overcome, was upon the direction of the learned judge as to the publication in ljeicestershire. Tlhat objection was a technical objection-an objection which had nothing to do with the merits of the case ; but, technical or not, it was his duty to avowjhis opinioR, and of that opinion the defendant was entitled to have the benefit. Now the objection wlhich his lordshiip had to the learnel judge's directioti was this :-It left to the jury. withzout sufficient premises to warrant the presunption, that the libel had been (lelivered open to Mr. Bickersteth in Leices- tershire: and it prooosed to their consideration no other mode of delivery. That presumption might be taken in cnminal cases was what no man could doubt ; more than half the sentences in crimes of the highestnature were foundedapon presumption only. Itsel. dam happened that an eye-witncss to theft or mnurder could be found. But, in order to warrant presumption, a prir4na filcie case must be made out; and he saw no such casc established in the case before thc Court. TI'he proposition was dotublc: first, that tthe letter had been dedivered in relestershire; and, next, that it had been deli. vered open ; and it was for the prosecutor to malke out a priaUz facie case upon each of those probabilities. Was anr evidence upon those points advanced? Because MIr. Bickerstoth Itad the letter in Alilddlesex, did it follow that it had been delivered to him in Leicestershiire or, because it was seen open in hisyos- session, did it follow that hie had not received it in a parcel ? pon such evidence the learned judge thought no grand jury wouldl have found a bill. They could have said, " Produce Air. Bickersteth." Suppose a feigned issue to have been joinied upon the two qtlestioIs, up,on whom would the of 1S of proot lhave lain ? CouldI the plaintiff say to the jury, " If the defendant does not slhow you how the letter was delivered to him, you are to presa.ne that it was deli- vered to hin in Leicestershire?" W'here the evidence, indeed, was in the power of one party only, the omi1is of proof might be cast upon that party; but that situation was not presented in the case before the Court. The evidence was not entirely in the hands ofthe defendant ; Mr. Brookes knew from wiom lie received the letter ; he knew that lie hadl received it from iil r. Bickersteth ; and by the prosecution iMlr. Bickersteth might havc becr callect. [hen, having this witness, who could instatNtly have proved the fact one way or thz other,could the prosecutors ^all upon thc jury to presumac it ? It did appear to the learned juhlge that M-Ir. Justice Best hati heen mnistaken in supposing tlhat, without Alr. Bickersteth, there was evidence to go to the iury. A jury was not to act upon con jecture when knowledge could be ha * anid in this case they had beeni called tipon to presume a fant, as to which, upon the case of the prosecution, the means of proof existed. It had been said that if the ver- dict could not, upon the last ground, be sustained, yet still there had been evidence to warrant the jury to presume that the libel had been delivered, for the purpose of publicationi, either to a servant or to a post-office in the county of Leicester. It it wvas showvn that the jury mast have presumed that, then Mr. Justice Bayley thought thereouightto be nonew trial: but it itoonly appeare(d that the jury mWigt so have presumed, then le should say it was for the jury only to come to suci a conclusionl. If the case had been put to the jury upon agroundl which could not be supported, the Court must not too hastilv assume that there was another ground upon which their verdict might be sustained. Juries ouglht not to interfere upon questiOns of law; and it was for juries only to thecide upon questions of fact. If, however, it could be permitted to asstime that the letter had in Leicestershire parted from the person of Sir Francis Burdett, the Court came to another question-Tn what state did it part from hin, open or scaled ? And if it did not leave him open, did a delivery sealed amount to publication ? Upon thalt point, his lordsaip did not nencn to give a decided opinion; but lie thought if a jddge told a jtiry that mere traditio was publicatiots, the defendant had a right to demanid a special verdict, in order that lie migllt take tire opinion of a court o1' error upon the point. Whatever mipight be founii to be the law upon that question, there was certainly no such authority upon the sub. ject 3s should bar the retfendant from his right in a court of crror. With the highest veneration for the iriiemory of liorth lllenborougl, Mr. Justice Bayley wourld say that his lordship had frequently bcet wrong at Nisi Pr-iits; anA that no man had yielded more freely when convinceri by the reasoning aril consideration of others. Trhe case of " tIre Kinz v. Watson" hiatt affor(led no opportunitv to by Lord Coke that a libel might be published by delivery; and actual communication of contents was one, but not the only mode, of pablication. 'rhe common mode, indeed, was by delivery to a pur- chaser. His lordshiip would now proceed mnore immediately to the case before the Court. It had bcen contetnded that there was no cvi- dlence at the trial of publication in Leicestershire, and the directions Dfi the learned judge to the jury hadl also been made thc ground of observatien. The Lord Chief.justice was of opinion, upon consider- ation,that the conduct of that learned judge had been well warranted by the evidence adduced upon the trial. Presumption was properly thc infrcence of one fact from certain other known facts and such inference, in all criminal cases, was necessarily admitted. It had been contended that crime was not to be presumed; nor was it so pre- sumed in this case ; for the crime, as far as it consisted in writing and publishing, wavs proved beyond contradiction. It was true that Mi\r. Bickersteth had not been called at the trial; but to him (the Lord Chief-Justice) it w3s clear that, previous to the tiial, tl,e pro- secutors had not known that the paper had ever been in the hands of Bickersteth. On the contrary, the defendants had come into court with a knowledge of all the facts, and prepared to dispute the publi- cation in Leicestershire. His lordshlip had attentively weighed the point raised by his learned dissentient brotlher (Bayley), but he thouglht that the premises had warranted a conclusion t)hat the paper had been delivered to Mr. Bickersteth in Leiccster- shire, In the same state in which it had afterwards been de- livered to Mr. Brook-es. The case had been put by the learned judge upon the trial rather favourably than unfavourable for the de- fendant; and, notwithstanding all the respect which his lordship felt for the opinion of his dissentient brother, he could not hold the deferdant entitled to a new trial, in order thati as to cer- tain facts, a special verdict might be found. lrith respect to the assertion that the defendant might have put the letter into scume post-office not in Leicestershire, but in the adjacent county of Rut- land, the Lord Chief-Justice adtmitted the possibility, but denied the probability of such havir.g been the fect: but, even admitting the probability, and assuming the fact to have been so, still he fklt bound to maintain the lawfulncss of trial and of conviction in the county of I,eicester; for to write and publish a libel wvas a misde- meanour composed of distinct parts; each of those parts, being an act done in prosecution of the same criminal intent, was in itself a misdemeanour; and the whole might be tried in any county in which any act was proved to have been alone. His lordship then proceeded to remark upon the cases of the King v. MVilliams, the King v. Watson, I Campbell, p. 165. the King v. Brisco, 4 East, 471. the Kine v. Butterv. &c. and to sfinw the man- ncr in whiclh they bore upon the present casb. He likewise referred to the doctrine laid down in East's Pleas of the Crown, vol. 1, p. 131, regarding treason commenced in one county, afid c-inpleted in another, and declared himself to he fully of opinion that it was enough to support the indictment if part of an entire mis- demeanour were committed in that county in which the in- dictment was laid. In the case then before the Court, it was beyond dispute that, thouglh the publication of the letter in question might have taken place in another county, Sir. F. Burdett had either written it or sent it to the post in Leicesterslire; and as the indictment was laid in that county, he conceived that a new trial could not be granted. She next ground upon which application had been made for a new trial was, that the learned judge who had tried the case had retused to admit evidence, that a number of persons had been killed,wounded, and trampled undler foot. on thc lith o; Aug.; in other words, that lie had refused to admit evidence of the truth of the libel. For his own part he must say that it appeared to hitm that such evidence could not be admitted; indeed, all the cases which had been referred to showed that in no case had it been allowed to prove the truth of a publication reflcctixg upon tie govcrnnent or the characters of either public or private men. The grounds upon which that rule of law was fonnded were so clear, that it would be quite superfluous in him to explain them ; but if authority were wanted to defend the propriety of that role, he would quoto the opinion of a man, who, as a statesman and a plhilosopher, was equally entitled to respect-he meant Cicero. Cicero, quoting the law of ihe 12 tables againstlibel-the severity of which lie [Lord Chief-Justice Abbott] did not mcan to defend, spoke thus.- " Nostre contra XII tabula cum perpaucas res capite sanxissent, in his hanc quoque sanciendam putaveront, si quis actitavisset sive carmen condidisset, quod infamiam afFerret flagitiumve alteri ; prm- clare. .Judiciis cnim ac magistratuum disceptationibus legitimis propositam vitam, non poctarrunl ingeniis haber? debemus, nec pro- brum audire nisi ea lege ut respondere liceat et judicio defendere." The case of the seven bishops,which had been quoted by the learned counsel at the bar to show that evidence of the truth of a paper charged as libellous might be admitted, (lid not at all warrant the position which thev had laid thown * neitlher was the case of Mlr. Hlorne, tried before Lord Mansfield, more available to their object. Against that case was opposedl the opinion of all the judges, solemnnly given upon certair questions propounded to them by the legislature when the libel-bill was in progress throuihl parliament-a bill which, as it made no alteration in tile law as it then stood, sufficientlv Justificd the learnetd judge in reftising the evidence tendered to' him upon thc trial. Another ground of the motion then before the Court was, that the same learn- ed judge had given to the jury his opinion of the publication in question; that he liad said, " If you are cornvinced that pub- lication has taken place in Leicestershire, you will take your opi. nion of the law of the case from nrc." Now, if the learned judge had used those expressions, he had not acted in a tiianner contrary to thie statute, but in strict conforinitv with it. The act authorized a judge to state his opinion to the jury whether a paper char&ed as a libel was or was not so in point ot lawv, though at the same time it provided that such opinion should not be binding upon them. Indeed, lie had known such statement of opinion to have been made by several judges, and was not aware of any one case in which any of them had refrained from makinie it. Another ?rouid uipon which a new trial had becn denianded was, that the 'earned judge had made improper comments in his summing up upon the nature of the libel. The learned gentlemen who had argtued ItpOnl those comments were not present at the trial, but had readl them from soimienotes,which he supposed had been taken at that timne. To those coinments he had paid the utmost attention, and he must say that he ha(l not discovered any thing improper in them. It was only due to the learned judge, who had made those remarks, to observe that lie concluded his summing tip by saving-" Tbis is the question which you lhatve to try if you are of such and suclI an opinion, you will find the defendant not guilty ;` that he then proceeded to state his own opinion of Sir F. Burdett's letter,'and to state it strongly; but that he afterwards added-" If you have any doubts of the correct- ness of that opinion, it will be your duty to give the defendant the benefits of those doubts,and to return a verdict of not guilty." Upon those grounds,as well as upon those which had been stated by two of his leari4ed brothers, he was of opinion that there was no reason for granting a new trial. air. Justice BEST said, that his opinion regarding the muanner in which misdenmeanours coniijitted in two countie.s were to be pro. secuted was in conformity with that expressed by his two learned bsothers. He ha(d collected all the cases of that nature whiclh p- peared in the books, and should have mentioned thenm to the bar if they had not been noticed by his learned brothers. Trhe SLCIcToR-OEXERtAL.-As it was not to he expected that Sir Francis Burdett should he in daily attenclance during the con. tintuince of the long arguinciit which had been just terminated, and as it was impossible for him to beacquainted with the result to which it had been just brought. he (tie Solicitor-General) should not press fbr judgment against him (Sir F. Burdett) that term, but wvould allow the imatter to stand over till the next. THE KING V. STIt FIlANCIS DE'M^T.