ceptions, with regard to the form of this recognizance, if there was any weight in them, the defendant might have taken advantage of them, if a Scire Facias had been brought upon it. But what the defendant has done, has in judgment of law amounted to an appearance; and as that is so, all defects in the recognizance are thereby cured; for this purpose the chief justice mentioned the case of Widrington and Charlton, Trin. 11 Anne. That was an appeal of murder; the defendant did not appear till the Exigent; and when he did appear, his appearance was entered in the most cautious manner that could be, for it was in these words, Et prædictus defendens, salvis sibi omnibus advantagiis et exceptionibus tam ad breve 'originale quam ad processum, venit;' and thereupon for faults in the Exigent he demurred. Lord Macclesfield, Mr. Justice Eyres, and Mr. | Justice Powis held, that all defects in process were cured by the party's appearance. Mr. Justice Powel indeed was of another opinion, as this was a Writ of Appeal; but agreed such defect would have been cured by appearance in every other action. "The rest of the Court agreed with the Chief Justice in the present case; accordingly the motion was disallowed of." See, also, another report of the same case in W. Kelyng, p. 161. In 8 Mod. p. 177, Fortesc. 37, are two reports of the King v. Earbery, which I suppose relate to this same person, though the points are not the same. Fortescue says, "Earbery was a worthy honest clergyman, and a good divine, but was drawn in by some of his party to write a pamphlet, in which the ministry thought there were some scandalous reflections upon the government." In the preceding Report of Almon's Case are some incorrectnesses which I have not ventured to alter. 6 As to the proceeding for an attachment against Almon, in respect of the publication of the Letter concerning Libels, Warrants, Seizure of Papers, &c.' see vol. 19, p. 1082, and lord chief justice Wilmot's Notes of Opinions and Judgments as there cited. Concerning the non-examination of Miller, p. 835, see what Mr. Dunning said in the House of Commons, reported 16 New Parl. Hist. p. 1279. Of the conversation which passed between Mr. Mackworth and lord Mansfield, p. 838, see Mr. Mackworth's account, 16 New Parl. Hist. pp. 1149. 1189. Mr. Burke, in the debate upon a motion of the late lord Mulgrave, respecting the Infor mation er officio, animadverted upon this case of Almon, see 16 New Parl. Hist. pp. 1152, 1153. 1192. See, also, the Reply of the Attorney-General De Grey, pp. 1155. 1194, of the same volume. 1.38, Mr. Serjeant Hill had written in his copy To the words "they had affidavits," p. 850, of Burrow the following Note: "The facts in the affidavits ought to have been proved at the Trial: as they were not, nor any reason given why they were not, they could not by the known course of the court, nor ought in reason to have any weight, on a motion for a new trial; therefore there must be some mistake in this report; perhaps they might be read in extenuation of the punishment, but certainly could not be for a new trial; unless as above intimated, the affidavits had gone further, and given some good reason why the facts in the affidavits were not proved, such as sudden illness in defendant's witnesses, or non-attendance, though served with subpœnas, for sickness of the witnesses, if not sudden, would not be sufficient, but the defendants should have moved to put off the trial." See, also, supr. pp. 844, 845. 554. The Trial of JOHN MILLER, Printer, before Lord Mansfield, and a Special Jury of Citizens of London, at Guildhall, for re-printing Junius's Letter to the King, in the London Evening Post, of the 19th of December, 1769: 10 GEORGE III. A. D. 1770. [Taken in Short-hand.*] SPECIAL JURY.t Samuel Athawes, of Martin's-lane. John Whitmore, Lawrence Poultney-lane. Talesmen. William Cave, of Farringdon Without. street. Richard Ayres, Bishopsgate-street. July 18, 1770. THE case was opened by Mr. Walker.— The record stated, that the defendant, Jobu Miller, did unlawfully print and publish, or cause to be printed and published, a certain seditious paper, entitled, The London Evening Post, Saturday, December 16th, to Tuesday, in reading over the paper itself, and in consideration of the proofs that are to be laid before you, I should have thought it a case so plain, and in so ordinary a course of justice, that it would absolutely be impossible to have mistaken, either the application of the proofs of the charges that are laid, or the conclusion to be made from them. I have not of myself been able to imagine, nor have I learnt from the conversation of any one man, that there is a serious mau of the profession in the kingdom, who has the smallest doubt whether this ought to be deemed a libel or not: my memory deGracechurch-serts me exceedingly, if the learned gentlemen who spoke of this subject before, did any time venture to say, in so many plain words, that the contents of that paper were legal and innocent. I am mistaken if they did. It seems to me impossible that such an idea member it right, from the general and loose can be formed; but instead of it, if I rediscourse of them, concerning the liberty of ject, concerning the right of individuals to the press, it was a large and undefined subspeak, to write, to publish with freedom, their own free thoughts, upon all manner of subthe same time pretty generally handled. Now, jects; these topics were pretty largely, but at it does not appear to me they were or could, in the nature of it, be applied to the present case. For I neither do, nor ever will, attempt to lay before a jury, a cause, in which I was under the necessity of stating a single principle that went to intrench, in the smallest degree, upon the avowed and acknowledged liberty of the subjects of this country, even with regard to the press. The complaint I have to lay before you, is, that that liberty has been so abused, so turned to licentiousness, in the manner in which it has been exercised upon the present occasion, that under the notion of arrogating liberty to one man, that is, the writer, printer, and publisher of this paper, they do, in effect and consequence, annihilate and destroy the liberty of all men, more or less. Undoubtedly the man that has indulged the liberty of robbing upon the highway, has a very considerable portion of it allotted to him. But where is the liberty of the man that is robbed? Where is the liberty of the man that is injured? Liberty consists in a fair and equal, public and general enjoyment of every man's person, forLune, and reputation, under the protection of the law; and the moment the law is silent or inattentive to protect any man's reputation whatsoever, his reputation is taken away from December 19th, in which was contained a certain libel, reflecting upon the King, the administration of government, his principal officers of state, and the members of the hon. House of Commons, in these words, [The paper read.] The defendant pleaded Not Guilty. Sol. General (Thurlow). Please your lordship, and you gentlemen of the jury, I am likewise of counsel for the crown in this prosecution, which is brought by the Attorney General against John Miller. I have very seldom found myself more puzzled how to state a question to a court, and in what manner to adapt it to a court, than I am upon the present occasion. Because Published in the London Museum (of which Miller was the publisher) for October 1770. Owing to a neglect of the summoning officer, only seven of the Special Jury attend ed, upon which Mr. Beardmore, the defendant's attorney, complained to the Court of the summonses for the Special Jury not being issued in proper time, and that to his certain knowledge, no summonses were delivered the day before at twelve o'clock. The Court allowed the complaint to be just, but took no further notice of it. Five Talesmen were then drawn. Orig. Edit. See it, p. 805, of this volume. him, and tyranny of the vilest sort is expected, and an opportunity is given to hired and venal writers, to vent their malice for money, against the best characters in the country, and against every character which they can be hired to insult for money. All I desire is, that the line may be fairly drawn, and justice so adminis. tered, as to protect the general liberty of mankind; and not under the notion of protecting the liberty of those that do wrong, encourage them in licentiousness and destruction of all laws human and divine, of all countries as well as this, which all people will agree, upon the principle of common sense, ought to be protected and defended. Gentlemen; these are the only principles upon which this prosecution depends; and if the prosecution is not to be supported upon these principles, I desire it may be rejected and abandoned, and I ought to be ashamed to maintain it at all. With regard to the present libel, the business of those that maintain this prosecution, is to prove these facts. The man that is charged with having printed and published this paper, has printed and has published a paper, in which concerning the king, concerning the House of Commons, concerning the great officers of state, concerning the public affairs of the realm, there are uttered things of such tendency and application, as ought to be punished. Now, gentlemen, when I state the proposition so, it will be very manifestly and obviously understood I am proceeding, not only to prove the fact of the present defendant having printed and published that paper, but to go so far into the particular parts of that paper, as to prove it does apply as the charges of the information express. To prove that it does apply, or to consider it as a subject liable to discussion and doubt, is, when I come to consider it, but an insult upon your understanding; for you have no one reproachful epithet, which is not, in the various shapes which a long jingle of words could be turned into, put upon the person of the king. He has been reviled throughout the history of his life, from his birth to the present moment. His education has been represented, as converted to the most frivolous, to the most malignant purpose; his heart is represented, to be corrupt to such a degree, to be abandoned so, that all the sacred duties of the great trust reposed in him, have been violated thus the possible business of private contention, with a character, for the purpose of making a king more contemptible, he is represented as the most contemptible character upon earth. You have been told, in consequence of that, he has set upon edge against him the minds of all his subjects; and in conclusion after that, the king is threatened with another revolution, in the stile of manifest rebellion, like new proclaiming war. When we are come to that situation, when it shall be lawful for any man in this country to speak of the sovereign in terms attempting to fix upon him such contempt, abhorrence, and hatred, there is an end of all government whatsoever, and then liberty is indeed to shift for itself. Now, gentlemen, I have stated to you in general, what I look upon to be the import of this libel. If I was to mention even the passages, is there one of them would fall short of the representation I have given them? In the first place, the king is supposed utterly ignorant of the duty of his office; in the next place, he is looked upon to have a fixed prejudice against the character of an honest man. "Supposing him (says the libel) made sensible at last of the great duty he owes to his people." Is it fit that any magistrate should be talked of in that manner, much less is it fit, that the king should" that he should be made sensible of his own disgraceful situation"—is that the language for the first magistrate in this country? No matter how improbable thus the best of characters of honest meaning men, is removed by such writers; but to be sure, that is a very unfair and unjust idea to give the person of a king, and yet they would have you suppose, that is no libel at all." It is the misfortune of your life, and originally the cause of every reproach and distress which has attended your government, that you should never have been acquainted with the language of truth, till you found it in the complaints of your subjects." Can a man be branded with a more odious and disgraceful representation of him, than that he had been so educated from the beginning to the end of his life, as to be utterly ignorant of the language of truth. The stile, the insolent manner of it, is what will occur to any body. He desires him to distinguish between the permanent dignity of a king, and that which serves only to promote the temporary interest and miserable ambition of a minister. "You ascended the throne with a declared, and, I doubt not, a sincere resolu tion of giving universal satisfaction to your subjects. You found them pleased with the novelty of a young prince, whose countenance promised even more than his words, and loyal to you, not only from principle, but passion. It was not a cold profession of allegiance to the first magistrate, but a partial, animated attachment to a favourite prince, the native of their country. They did not wait to examine your conduct, nor to be determined by experience, but gave you a generous credit for the future blessings of your reign, and paid you in advance the dearest tribute of their affections. Such, Sir, was once the disposition of a people, who now surround your throne with reproaches and complaints. Do justice to yourself, banish from your mind those unworthy opinions, with which some interested persons have laboured to possess you. Distrust the men who tell you the English are naturally light and inconstant, that they complain without a cause. Withdraw your confidence equally from all parties, from ministers, favourites, and relations, and let there be one moment in your life in which you have consulted your own understanding." Gentlemen; is it fit that the first magistrate of this country should be represented to his duty to the crown as paramount to all other obligations whatsoever. To us, says the anonymous writer, to us they are indebted for an accidental existence. I wonder of what member he happens to be the elector! it would be more honest if he was to shew himself, that we might know who he is. To us they are indebted for an accidental existence, and they have justly transferred their gratitude from parents to benefactors, meaning from the electors to the ministers; from those who gave them birth, to the minister, is the very expres. sion. Now, whatever may be the flippancy of some men's manner of telling things, all orders of government, where the form of government subsists, as well as in this country; no man of sense can admit that it ought to exist, and at the same time it ought to be subjected to re people in the way in which I have now stated to you, as never having once consulted his own understanding? I do not even dwell upon the epithets, which are the natural consequences of treating the person of the king in that manner. The next charge upon him, is, that he takes a share in the narrow views, and fatal maliguity of some individuals, and to sacrifice, consequently, private objects under the government, for the private purposes of gratifying pique and resentment; then it mentions [that by the peace] England was sold to France, and his majesty was deserted and betrayed in it. But the next article, the king is charged with, is what I mentioned to you before, which is, he has put himself into the condition of an enemy, a private enemy to an individual man. For God's sake, why? What man could, with out offending the laws, put himself in a situa-proaches, at the pleasure of every man that tion, either to deserve, or actually to meet the private enmity of the king; and, as I told you before, in order to lessen the king the more in your esteem, this gentleman is represented to you, who, in the former part of his life had acted upon a settled opinion, that there were few excesses to which the character of an English gentleman might not be reconciled, and that he could take the same latitude in the choice of political principles as he had in the conduct of his private life. With regard to the former, it seems to be somewhat singular. I have always understood that principles, either moral or political, were fixed upon the consciences of men, and an honest man was not at liberty to choose different principles. But this is all said with a view of lessening the character of that gentleman, to make the conclusion afterwards, that it is an unworthy contention, (and it is represented as unworthy) and giving an air of ridicule to the difficulties, in which the king has been betrayed; and making it a principle of government; that he had not only stretched every nerve of government, but violated the constitution by an ill-advised personal resentment. Is this language to tell a king? If you were to tell a common justice of peace, that in the administration of the duty of his office, he had sacrificed bis duty to his resentment, I apprehend my lord will agree with me, and I lay it down as a proposition of law, you would be liable to be prosecuted; and if such a thing was published, it would be a libel if wrote upon him. And here we are come seriously to debate, whether telling the king he has not only sacrificed the duties of his office, but betrayed the trust reposed in him, and his articles were not performed and all that to gratify ill-humour and resentment-if that is not a libel, I own my imagination cannot reach to what is a libel, and I do not understand the subject the least in the world, if it is not to be so understood. After that, he is pleased to go to the House of Commons: with regard to them, he says he can readily believe there is influence enough to recall what they look upon as a pernicious vote. The House of Commons consider their thinks proper to put reproach upon them, by publishing a libel. I only wish to have those two propositions examined. That two great bodies, whose whole benefit and existence, nay their authority, is to govern the whole nation; and are they to be in the power of every man whatsoever to revile them with what personal insolence of language he pleases? Does this come at all to the idea, that an honest man would allow his own opinion, under the pretence of discussing public subjects? Will any man of honour say you may revile, with imputations of reviling, the persons of men, without going any further? Is that a colour to cover this libel? After having treated the House of Commons thus, he returns again to the king, and is pleased to threaten the king with an uni versal revolt of all bis injured subjects. He begins with the kingdom of Ireland, which he is pleased to call a plundered and oppressed kingdom, with no more regard to truth than understanding and knowledge enough of the subject to keep up the probability; for of all quarters of the world, he should not have looked there for that sort of imputation, as he is pleased to put it. And here he is introducing another character upon the stage, merely for the sake of traducing the king afterwards; that is lord Townshend. "The people of Ireland every day give you fresh marks of their resentment. (speaking of the king) They despise the miserable governor you have sent them, because he is the creature of lord Bute; nor is it from any natural confusion in their ideas;" no, they are right enough in that, he supposes "that they are so ready to confound the original of a king, with the disgraceful representation of him." This is the manner of talking to the king. I have had the honour to converse and live with lord Townshend, as long as any body. All I have to say of him, is, he is very far from deserving such a character. But I hope that will not be taken as a very gross observation, that a man who has lived with him, dare to say so. But I desire but one word concerning the immorality of that sort of conduct, that under the cover of anonymous publication, men are to bespatter in this kind of way, and in that another. If you have any difficulty of imagining what that crown is, what his title is, who is in possession of that title, acquired by one revolution, and what it is that is meant by another; they are difficulties that have not yet occurred in any one coffee-house in this great metropolis, nor one place in the country, from one end to the other, wherever this way reflect upon the condition of officers in this situation. If he should apply to a court of law, and submit it to a jury, if they were not deaf to his complaints he would be relieved, unless they were not disposed to protect his character, and, upon the contrary, were to take the part of a man, who under cover of an anonymous publication, attacks his character in this manner, with this method of tack-libel has been published; such is the nature of ing to it at the end, that he was a proper representative of the king. The next article is: "He has taken a decisive personal part against the subjects of America, and those subjects know how to distinguish the sovereign and a venal parliament upon one side, from the real sentiments of the English nation upon the other." For God's sake, is that no libel? To talk of the king, as taking a part of an hostile sort against one branch of his subjects, and at the same time to connect him in the article of acting in this manner with that parliament, which he calls a venal parliament; is that no libel? I beg leave to observe, concerning what parts apply to him, that England he has represented as being engaged in a quarrel against the king; and consequently, that he stands against them with a few unhappy people, who are not at liberty to choose their principles; but fancy themselves bound to unhappy principles; those few men, he desired to be understood, were the whole support, and the whole attachment to the king. Then he goes to the partiality of his understanding to the soldiers. Now it is worth your attention, gentlemen, to see how very malignant the object of that man must be who wishes to set this party against the other; and tells the king he night learn to dread the undisguised resentment of people that are ready to meet their sovereign in the field. Then you see how malignant that must be, and how it applies, when you read that part with respect to the guards, where he says, "when the distant legions took the alarm, they marched to Rome and gave away the empire." This is the representation of the occasion, upon which the guards had preferments lavished upon them, and the cruelty with which the marching regiments had been treated, in order to raise a quarrel, in short, between them. Now, gentlemen, there are an hundred different passages, in which the king is told he has no good quality, but every bad one upon earth. He is bid to discard his little personal resentments, which have so long directed his public conduct. Is it not shameful to talk in that manner? and in a thousand instances, too long and too disagreeable to repeat, the king has been treated thus, from the beginning to the end; and in conclusion, he is told what he is to expect next, unless he conforms to this anonymous writer; that is, another revolution; and that the prince who imitates the conduct of the Stuarts, should be warned by their example, and while he plumes himself upon the security of his title to the crown, should remember, that as it was acquired by one revolution, it may be lost by the libel, with respect to that. After having stated to you, what I look upon to be the ap plication of the paper, to the several articles mentioned more particularly than all to the king; and having laid before you what will be the general form of the evidence, in order to prove the present defendant guilty of printing and publishing this paper, it will be for you to determine, if I may use a word that looks so like doubting the determining upon such a question as this. If you have, any of you, any serious thoughts, whether the author of this paper did mean the king; and whether he did mean the great officers, the lord lieutenant of Ireland, or any other; and whether he did mean concerning the officers of this country, and endeavouring to set one party of the country against another; if you have any doubts upon that among yourselves, that will admit you to acquit him. If you have no doubts, and do return a verdict of acquittal without such doubts, or that you return a ver dict which the Court must understand in a different way, which the Court must construe dif ferent from what you intend, then you find a false verdict. For it lies upon you, to find a conclusion from the evidence; or to say, whatever we think of the evidence, and however we are convinced of the conclusion, we are determined to reject that evidence, and to deny that conclusion, and to betray the sense of our own minds, rather than to execute the laws. But, gentlemen, upon the contrary, you will proceed in the administration of justice and the law, without adopting the part of the author, who has set himself up for the accuser of his king, and as yet has not had the face to shew himself, though he has been the rancorous enemy of so many people. Daniel Crowder sworn. Crowder, what is your business?—I am an assistant to the messenger of the press, Sir. Very well. Do you know the defendant John Miller ?-I believe I know him, I believe he is in that quarter. Now, Sir, give my lord and the jury an ac count, whether at any time, and when, you bought the paper, which I believe you have in your hand.-[No answer. The paper produced.] What is Miller? What business does he follow?-He is the publisher of the London Evening Post. Now give an account where you bought that paper.-I bought it at Mr. Miller's; it was served to me by his publisher. |