Page images
PDF
EPUB

cuses the House of committing a great breach in our laws; that House which is the guardian of our liberties, and the protector of our properties. It accuses also the King's-bench, with overturning that bulwark of our liberties, the Habeas Corpus Act. Every one must be shocked that reads this wicked, diabolically wicked, pamphlet. The parliament meet again, and vote the pamphlet a libel: they vote it to be a false, malicious, infamous, scandalous, and seditious libel, tending to create confusion and rebellion; at least to sow the seeds of rebellion. And to me it is astonishing, how it could enter into the mind or heart of man to write such a libel. Now, gentlemen, I shall shew to you the nature of this libel, and begin in this order. 1. The title. 2. The introduction. S. The state of the Case, and the evidence laid before the House of Commons. 4. How considered, and in what light he has put the sentence of the Commons. 5. How wickedly and maliciously he has insinuated the thing. And, 6. His treatment of the court of King's-bench.

"First. What!-shall a person appeal from the judgment of that court, who are the only judges of things belonging to them, the House of Commons, I mean. An Appeal! To whom? to a mob? Must justice be appealed from? To whom? to injustice? Appeal to the good people of England, particularly the inhabitants of Westminster! The House of Commons are the good people of England, being the representatives of the people. The rest arewhat?--nothing-unless it be a mob. And what can be in a mob but confusion? But the clear meaning of this libel was an appeal to violence, in fact; and to stigmatize the House; but he durst not speak plain. Then the pamphlet tells you, that his case is worthy the consideration of his fellow-subjects; here he shews his virulence. He says his commitment is a prece. dent founded on unparalleled barbarity, striking at our laws in a most shocking manner. Then he charges the House with sinking material evidence; which in fact is accusing the House of injustice. This is a charge the most shocking, the most severe, and the most unjust and virulent, against the good, the tender House of Commons; that safeguard of our liberty, and guardian of our welfare. The next accusation the libeller brings against the House is, on their granting Mr. Murray's removal, on the application of his physicians-in sayingthey had a mind to kill Mr. Murray, by removing him in the midst of a raging fever; and on Mr. Murray's refusing to go in that condition, the House, when his physician bad mastered the distemper, ordered that none should see him. Next accusing another court that never injured any one; a court the most dignified by the worthiness of the members; the court of King's-bench. Gentlemen, this libel, to whosoever reads it, will be found the most pungent invective that the skill of man could invent: I will not say the skill, but the wit, art, and false contrivance of man, insti

gated by Satan: an indirect pamphlet-though not said plain, yet understood; as being understood, is a libel: and to say that this is not a libel, is to say that there is no justice, equity, or right in the world. There can be no court of justice, if the House of Commons is not; and if the House of Commons is not to be defended, and have protection and relief at common law, yourselves, your houses, cannot have the protection of the law. The thing you, gentlemen of the jury, are to go ou, is, whether the Case doth not mean the House of Com. mons; for we shall prove to you the publication: then you must find the House is charged by this pamphlet to have been guilty of the most daring prostitution of power. Can there be a greater charge ?"

Witnesses called :

Peter Beck swore he bought the pamphlet of William Owen, the 28th of June, 1751, at Homer's Head, near Temple-Bar. Sent by Ibbot to buy it, gave 1s. 6d. for two.-John Ibbot, messenger to the press, sent Peter Beck the 28th of June, to buy the pamphlet; and on the 29th he took Owen into custody, and seized several pamphlets in his shop.Mealin, the 27th of June, 1751, went to Owen's, by order of his måster Cook, to buy them: but Owen said he had none by him, but he should have them when ready; and in the afternoon, William Owen let him have twelve.-Cook, bookseller, on the 27th of June, the first time he saw the pamphlet advertised, sent his servant to buy them.--Langford and Shorter also proved Owen's selling the pamphlet.-Frewen called to prove the writ for the election at Westminster. Stanhope proved that there was an election.-Barwell, clerk of the House of Commons, proved the proceedings of the House in this affair. The pamphlet read in court.Then the Attorney General asked Mr. Ford and Mr. Pratt, if he need trouble the Court with proving more and other things; and should be glad to know what they intended for their plea and defence, in order to give the Court as little trouble as possible. Mr. Ford answered, That in justice to his client, he could not tell him what they intended for their defence; but would be so far candid with him, as to say, he would take advantage of his want of proof; and therefore desired him to prove all be could.

Mr. Solicitor then got up and made a short speech to the following purport*: "The question is, whether the jury are satisfied that the defendant Owen published the pamphlet? The rest follows of course. If the fact is proved, the libel proves itself, sedition, disturbance, &c. Therefore the printer must be affected with

* From a word Mr. Ford dropped in asking one of the witnesses a question, Mr. Solicitor guessed what would be the scope of his argument; and thereupon endeavoured to anticipate him; of which Mr. Ford afterwards seems to take notice. Former Edition.

every thing in the pamphlet, if the publication is proved, and that is what lies for your [the jury's] determination; you being judges of the fact, the judge determines the law. But suppose you judges of the law, your own breasts may tell you this is a libel: It accuses the House of Commons of injustice; compares them to the Turkish divan, meant by the letters Du; and the inquisition, meant by the letters In-n; and calls them a bribed assembly. Suppose a pamphlet were published after this trial, that you [the jury] were perjured and bribed, and this spread over the kingdom, would it not gall you?-These sort of libels can tend to nothing but sedition; for how can the mob or the people redress but by tumult and rebellion, and thereby subvert the constitution? For this is a part of the legislative power; and if a third part of the legislature is destroyed or exposed, how can that be without rising in the face of the constitution? There have been several papers, and paragraphs in the papers, printed on purpose to poison the minds of the people, and seemed calculated to influence the minds of any jury that should be on this occasion: But I dare say you, gentlemen, who are upon your oaths here to try the fact, and case, wholly as it is, will have no regard to such artful and false insinuations+. And I know very well the counsel on the other side design to take no advantage or notice of these false and malicious hints. But as you are upon your oaths, you judge of the facts we have laid before you, now in court, and only them; and like honest men bring in your verdict accordingly."

The next who spoke was Mr. Ford, for the defendant, as follows: "The doctrine laid down by the gentlemen for the king, that what à court of justice does, whether legal or not, is not to be called in question, nor any remonstrance to be made against it, is a doctrine that may be full of the most fatal consequences to all sorts of men; since every inferior court may do the same with equal justice; for there can be no court but what is legally so: Therefore, if legal courts do wrong, must our mouths be shut, and not complain or petition for redress? God forbid!-May you, gentle men, nor I, ever be sensible of such injustice! -I say, if the case can be so.-And here the gentlemen for the king seem to endeavour to confine the counsel for the defendant, in their argument, by saying such and such arguments will not be used; which is, in fact, hinting that they should not. Why? If they have liberty to make use of any argument, thought, or fact, for the king, surely the defendant's counsel ought to have the same liberty for their client. I understand not the shutting of men's mouths. Let every man clap his hand upon his heart and examine how he would like it, was it his own case. Shall a man be

+ This has reference to a letter in the Londou Evening-Post of Saturday, May 30, 1752. Former Edition.

[ocr errors]

injured,-or suppose he fancies himself injured, which is the same,-shall his mouth be eternally closed, and no redress for the injury ever be given; nor no satisfaction to his own mind, for a right understanding, and clearing up of what he looked upon even as an injury? If things should come to this pass, which heaven forbid! what would be the case of us all? We may be scourged, afflicted, and wronged, and all for the want of liberty to complain, and put forth our case: The very hand that burts us may still continue that pressure, not knowing of the grievances done to those who lie under it; and who, were this doctrine to be allowed, must suffer without hope of redress; for, unless our mouths are open to complaints, there can be no redress for poor suffering mortals: For how can that be redressed which is not known? or that known which is not allowed to be mentioned?-May never you, gentlemen, nor I, he sensible of such a maxim carried into practice! Nay, the very gentlemen who put it, cannot from their hearts consent to it. We in this case lie under disadvantages enough; our adversaries have great power; nay their power is unknown, even to themselves, at all times; few of them know the limits of it: It may be almost what they have a mind. Though great, though wise this House may be, yet they are but a body of men, and therefore fallible; for it is not in men, or bodies of men, to be infallible. By this great power of the House of Commons, we, for our client, are debarred from making use of all the means of defence we could against other people. Much might be said, but much we dare not say; I own I dare not. But let me suppose, only for argument's sake, that a House of Commons may do wrong, it is not impossible for them to err; I do not say that they do in this case: Former Houses of Commons certainly have erred, and those errors have been redressed by a future House of Commons, and that on a knowledge of the case by complaint: And if the House of Commons ever has erred, by the same rule it may err again. Therefore allow me to suppose, only for supposition, and argument's sake, that the House have done wrong in their votes on this affair (not that I say they have); they have voted this pamphlet a libel, and have turned it over to the common law, for the defendant thereby to be tried for it; then they have left the common law to be judge of it. If so, should the defendant's counsel he debarred (if it was necessary, but which in my opinion is not) from contradicting, and proving this to be no libel; which would, in fact, be contradicting and opposing the opinion and vote of the House of Commons? I only put this by way of supposition; to shew, if these arguments were necessary to be gone upon, the disadvantage we lie ander. Much might be said, even on this; but much I dare not say. I know not scarce what I dare say; but I shall not go on this point, as I think it is not necessary to our present purpose; and I hope we can and shall be able to succeed with

out it. I only mentioned it, because the gentlemen on the other side seemed desirous still further to shut the mouths of the defendant's counsel, who are under difficulties enough already. The House of Commons have voted this pamphlet a libel: Great is the power of a vote of that House: and where is the man who dares find fault with, or contradict, the opinion of the House, especially when voted so? I dare not, and bold must be the man who dares; he knows not the risk he runs, by justifying or maintaining a book not to be a libel, when the House of Commons have voted it so. That man may perhaps have a vote against himself, for what cannot a House do, whose power is so great? What therefore I shall insist upon is this:

"The fact charged in the Information is, That the defendant Owen published this pamphlet, maliciously, seditiously, scandalously, and falsely, to the calumny of the House of Commons of Great Britain, and in order to disturb the peace of the nation: and this he has done wittingly, wilfully, maliciously, scandalously, &c. This is the fact laid to his charge; which the gentlemen have been very far from proving. Only proving the sale of the book, does not prove all those opprobrious and hard terms laid in the charge against him, If his selling and publishing this book maliciously, with a seditious intent, scandalously and falsely, with a design to calumniate the House of Commons, and in order to disturb the peace of the nation is not proved, then this great charge in the information fails. Let the gentlemen prove those words (the intention) if they mean any thing by them; if they do not prove these terms, this bad intent, for in that lies the crime, then it is no more than selling printed paper, in which surely there can be no fault. Then what are these words? If the gentlemen mean any thing by them, prove them; if they mean nothing but words of course and form, let the gentlemen scratch them out, they are needless; which if they do, their information will be very defective. But they will not consent to scratch them out, 1 am sure; why then they must mean somnething by them, which if they do, consequently they must prove them. These words constitute the charge, which if they do not make out, will you, gentlemen, clap your hands upon your hearts, and say this man is guilty? Guilty of what? Nothing; for nothing is proved, unless selling paper is a crime. Surely, gentlemen, your own breasts, your own consciences, must tell you, when you consider of it, and pray consider it as your own case, fancy each of yourselves here under a rigorous prosecution, like this poor man,-there is no crime proved, no malicious intent, no seditious design; therefore not proved guilty of the crime laid against him. If a man be even a bad man, and you all know it, and is accused of a crime he is innocent of, surely none will find him guilty of a crime, when that crime is not proved, because you know him to be guilty of

other faults. These things are plain, even to a demonstration, to every man. But this defendant, whose cause you are now judges of, will appear to be a man of very fair character; well affected to the government and constitution in his principles; always was, and is a good subject; a member of the church of England, and as well affected to both church and state as any man in England. Therefore can any man believe, when we shall have made this appear by several witnesses, men of worth, substance, honour and credit, both clergy and laity, that he could be guilty of these things; that he intended this hurt laid to his charge? We shall prove that he published more papers for the government in the late rebellion, in 1745, and containing the most steadiness for government, and the most home and inveterate things against its enemies, than any printer of his time; so that I believe, if the rebels had gained the day, his zeal might have caused his punishment. Will it then appear likely that he is guilty of these charges laid against bim?

"I must observe one thing, which is, the danger of your finding a verdict specially. Suppose you find him guilty of publishing and selling this book; guilty includes guilt, then guilty of what? Selling paper.-Where is the guilt?-Take care, gentlemen, of being deceived, by finding him guilty any way; by bringing in your verdict any way against him, you render him liable to the consequences of the whole; that is, to the same penalties that he would have been liable to, if he had committed the whole crime laid to his charge, and that charge fully proved against him. After you have brought in your verdict, it will be in vain for you to say, you did not intend he should be punished; you only found that he had published, but not committed the crime; it will be in vain for you to petition for mercy, mercy will then be in other hands; it will be out of your reach; and he will be at the mercy of others, who may not look with the same eyes as you when you have found him guilty, it will be in other breasts to punish; it will then be too late for you to interfere. By finding him guilty, you do all that you can against him, and then it will be out of your power to serve him. You must therefore consider him guilty of this great crime, and consequently deserving of great punishment, or not. But if you think he is not guilty, and not deserving of great punishment, then he has not committed this great crime; then consequently they have failed in their information, and he is innocent of it; if innocent, consequently not guilty. Mr. Attorney tells you, this pamphlet means, and is writ with the intent that is laid in the information; he says, because the pamphlet compares the parliament to Inn, it must certainly mean Inquisition; and in my opinion it may, and does as likely, mean Information; and I assure you, gentlemen, I have very little love for Information, as well as Mr. Attorney for In-n; it is certain

that these things, which will bear several interpretations, must, nor can, have no weight with you; who should either put a good construction upon them, or none at all. You must consider too, that there is a great difference be tween the author and the printer; the author knew well what he intended, and the whole sense of the pamphlet ; therefore liable to have the sense of the pamphlet interpreted against him; but a bookseller may sell a book, and not have any intent but profit; and be quite ignorant of the contents, at least the spirit of them; therefore it is well worth considering how intent makes a crime, and how far not; every man may err, and if unintentionally, he cannot be guilty of a crime before God; and if so, it would be presumption in man, to make any comparison of his own justice; what is not criminal with God, cannot be with man. The gentlemen on the other side have not proved the intention."

The reverend Mr. Warner, Mr. Gosling, Mr. Hawkins, and several others were called, who proved Mr. Owen to be a good subject, a true man to the church of England, zealous for the establishment; that he had printed several papers for the government, and would not have published the pamphlet, had he known or thought the contents bad, or any hurt in them, and the farthest man in England from doing such a thing.

Mr. Pratt next rose up for the defendant; and having for some time gone upon different parts of Mr. Ford's argument (which it cannot be necessary to repeat, as Mr. Ford's speech has just been given at length, and as nearly verbatim as possible), he said, "Then, gentlemen, to shew you how necessary it is to prove the intention; if there is an indictment preferred against a man for au assault, with an intention to ravish; the intention must be proved, or else the jury cannot find him guilty. The same of an assault with an intention to kill, if the intention is not proved, he must be acquitted. If he kills, and the intention is not proved, that is, if it is not proved that he killed premeditatedly and of forethought, it is but manslaughter. Therefore in the case before us, if that part of the information is not proved, that he published maliciously, &c. you must acquit him.-The privileges of parliament are not known to the common law; perhaps they may judge and punish: I know not their privileges, nor perhaps are they to be known; nay, not known to themselves wholly they may be just what they please. But they have not punished this man; they have turned him over to the common law, therefore he must be tried by the common law. Yet, as hath been justly observed, they may take the thing again into consideration, and punish him in the House; and if so, he may be punished twice for the same fault, by two different sentences; which by the common law a man cannot. Mr. Attorney will not answer for the House of Commons, that it will not be so. Then, gentlemen, consider what injustice it would be to punish a

man here, who is at the same time liable to be punished there, if the House thinks fit.-Much might be said, more than we dare say for our client in this case: our mouths are already half shut, and the tenets the gentlemen on the other side lay down, are to shut them quite; but may you, this nation, nor I, never feel the effects of such tenets, or see them put in practice! It is a rule in law, and a principle in equity, to hear both sides; therefore we may justly complain in this case. It is a common proverb (and a very wise chancellor affirmed that proverbs were the wisdom of a people), Losers must have leave to speak. In the Scrip ture Job complains of the dispensations of Providence, the causes and consequences of which he did not comprehend; one would imagine, therefore, that as complaints are so natural to sufferers, they may merit some excuse where the affliction exceeds proper bounds. It may be said indeed, they are capable of raising a dangerous compassion. But to prevent this, will it be right to tell a free people, happen what will, you shall never complain? Betore this is said, it should be well considered." [Mr. Pratt then went again upon different parts of Mr. Ford's excellent speech, which he enforced in a very strong and fine manner, and with which he concluded.]

The Attorney-General got up again and made a reply, the principal matter in which was," That in an indictment for murder were always these words, which are words of course, and of mere form, viz. not having the fear of God before his eyes, and being instigated by the devil. Now, according to the rule laid down by the gentlemen, this must be proved, which is impossible; for the man would say, he was not so instigated, and had the fear of God before his eyes; and who could prove that it was otherwise? Now this evidently shews all those things to be merely matter of form."

The Chief Justice next summed up the evidence; and delivered it as his opinion, that the jury ought to find the defendant guilty; for he thought the fact of publication was fully proved; and if so, they could not avoid bring ing in the defendant guilty.

The jury went out and stayed about two hours; when they came into the court, the foreman answered for the rest, and when the question was put, he said, Guilty; Not Guilty, Not Guilty, my lord-the first word guilty being said by mistake; upon which there was a loud huzza; and the jury went away. But, at the desire of the attorney-general, they were called into court again, and asked this leading question, viz. " Gentlemen of the Jury, do you think the evidence laid before you, of Owen's publishing the book by selling it, is not sufficient to convince you that the said Owen did sell this book ?"* At which the foreman appeared a good deal fluttered; and the judge

* See the Case of the Dean of St. Asaph, A. D. 1784, the cases therein referred to, and the stat. 32 Geo. 3, c. 60.

repeated the question; upon which the foreman, [ tion, that the evidence of publishing was not without answering the question, said, "Not clear, without perjury; and if the jury had Guilty, Not Guilty ;" and several of the jury- answered Yes, and not found the defendant men said, "That is our verdict, my lord, and guilty, one does not know what might have we abide by it." Upon which the Court broke been done to the jury, or before whom called. up; and there was a prodigious shout in the But they found Owen not guilty on the whole hall. The attorney-general desired more ques- of the case, taking in that which included guilt tions might be asked, but the judge would not, or not, and judged as to facts, law, and justice, neither would the noise permit it. of the whole; and therefore did not answer that leading question, which was so artfully

Note, The Jury could not say, to the ques- put to them.

526. The Trial of JOHN BARBOT, Attorney at Law, for the Murder of Matthew Mills, esq.; at a Court of Oyer and Terminer and General Gaol-Delivery, held at the Town of Basseterre, in and for the Island of St. Christopher, on Friday the 5th day of January, before the Hon. William Matthew Burt, esq. President of his Majesty's Council of the said Island, and others, his Majesty's Justices of Gaol-Delivery. [Published by Permission of the Judges]: 26 GEORGE II. A.D. 1753.

ON Thursday the 4th of January, 1753, a
Bill of Indictment was found by the grand in-
quest for the island of St. Christopher, against
John Barbot, gentleman, for the murder of
Matthew Mills, late of the said island, esq.

On Friday the 5th of January, 1753, the Court being met, the prisoner John Barbot was set to the bar, when the Court proceeded thus: Clerk of Arraigns. John Barbot, hold up thy hand. (Which he did.) You stand indicted by the name of John Barbot, late of the parish of St. George Basseterre, in the island of St. Christopher, gentleman; for that you, not having the fear of God before your eyes, but being moved and seduced by the instigation of the devil, on the 19th day of November, in the 26th year of the reign of our sovereign lord the king that now is, about the hour of five of the clock in the morning of the said day, with force and arms, at a certain place called Frigate-Bay, in the parish of St. George Basseterre aforesaid, in the island aforesaid, in and upon one Matthew Mills, esq. in the peace of God, and of our sovereign lord the king that now is, then and there being, feloniously, voluntarily, and of your malice aforethought, did make an assault; and that you the said John Barbot, with a pistol of the value of five shillings, then and there

charged and loaded with gunpowder and leaden bullets, which said pistol you the said John Barbot in your right hand then and there had and held, into and against the aforesaid Matthew Mills, then and there feloniously, wilfully, and of your malice aforethought did shoot John Barbot, with leaden bullets aforesaid, off and discharge; and that you the said issuing and shot off out of the pistol aforesaid, then and there, by the force of the said gunpowder, the said Matthew Mills, in and upon the right side of the body of the said Matthew Mills, and between the two last false ribs, and near the back of the said Matthew Mills, then and there feloniously, voluntarily, and of your malice aforethought, struck, penetrated, and wounded; and that you the said John Barbot, then and there feloniously, voluntarily, and of your malice aforethought, gave to the said Matthew Mills, with the leaden bullets aforesaid, out of the said pistol, then and there, by force of the said gunpowder, shot off and discharged, in and upon the right side of the body of the said Matthew Mills, and between the two last false ribs, and near the back of the said Matthew Mills, then and there one mortal wound of the breadth of one inch, and the depth of nine inches; of which said mortal wound the said Matthew Mills at Frigate-Bay aforesaid, in the parish aforesaid, in * This Mr. Mills lived some time at Rich- the island aforesaid, instantly died: and so you mond in Surrey, and married a daughter and the said John Barbot, the said Matthew Mills, coheir of colonel Soulegre: (The other daugh-in manner and form aforesaid, at Frigate-Bay ter and coheir married Stephen Theodore Janssen, esq. Lord-Mayor of London in 1755), He went over to St. Christopher, Antigua, &c. to look after his estates there, and was barbarously murdered. Former Edition.

aforesaid, in the parish and island aforesaid, feloniously, voluntarily, and of your malice aforethought, did kill and murder, against the peace of our said lord the king, his crown and dignity.

« PreviousContinue »