the spirit of those about him, was construed into a libel. They were tried on that charge, and were acquitted. It was obvious, then, that there was not the slightest analogy between that case, which the writer of this letter had introduced, and the present circumstances. All that the introduction of that historical fact could mean was, that his acquittal might lead to similar consequences among the soldiers. It was impossible that any reasonable man could read this letter, and say that it was not calculated to inflame the soldiers. He said that "James II. could not inflict the torture on his soldiers-could not tear the living flesh from their bones with a cat-of-nine-tails-could not flay them alive"by which he meant that the soldiers of the present day lived under greater tyranny than in the reign of James the Second. Was this, or not, the language of excitement? Was it not intended to make the soldiers believe that they were cruelly treated, and that there condition ought to be ameliorated? This was the libel. It was for the jury to say, under the circumstances, whether the defendant was guilty or not. He had not read to them one or two passages only, upon which a greater stress might be laid; he had read the whole of the letter. Some passages were expressed in such terms, that no one would have instituted a prosecution against the writer; but others were so violent, and taking the whole of it together, it appeared to him to be so highly seditious, that if the great law-officers of the Crown, who had instituted this prosecution, had failed to notice it, they would have been guilty of a great dereliction of duty.. Indeed, the writer had thrown out a challenge to the Attorney-General to prosecute; and if he had not prosecuted the defendant for this publication, it might have been said, that, in an age like this, when, unfortunately, so many persons were brought before the tribunals of their country for libelling the Government, the humble and ignorant were visited with the penalties of the laws, while the rich and enlightened were suffered to escape with impunity. It appeared to him, upon the plain construction of this letter, whether they took the whole or the general spirit of the writing, that they must infer the seditious intention of the writer. In conclusion, he would only say, that no man had a greater respect than himself for the liberty of the press. It was a great blessing in itself, as as it tended to improve the human mind; but when abused, it became a great curse; and unless the arm of the law was strong enough to put down-such libels as he considered the present to be, the consequences must be most pernicious to the interest and welfare of society. A man might write what he pleased, but he wrote subject to being called before a Jury of his country, who were the best censors of the press. They were peculiarly the guardians of the law; and he hoped that it would ever be dispens

2

od as it now was. So equitably and so honourably was the law administered in this country, that he might apply to it generally that beautiful passage in which the great ecclesiastical writer had described it as a system of justice of which no less could be said, than that "her seat is the bosom of God, her voice the harmony of the world; all things in heaven and earth do her homage, the meanest enjoy her protection, the highest are not exempted from her power.

Mr. Samuel Brooks was now called.-He said he lived in the Strand, in London. He knew the defendant; he was acquainted with his hand-writing; he believes the letter now shown him to be his hand-writing; it came to his hands in August last, through "the hands of a professional Gentleman, Mr. Bickerstaff. The "letter came in an envelope, I have not got the envelope, and do not know whether it came by the post. I had a copy of it sent to the papers. I waited on Lord Sidmouth on the subject of the letter; I cannot recollect the day.

Q. Whose hand-writing was the envelope?-A. It was Sir Francis's.

Q. What was it? A. A desire to publish the letter in the papers. The date of the letter is August 22d. I received it a day or two after. Witness being shown another letter, was asked if it was the hand-writing of Sir Francis; he said he did not know. He was shown an envelope, and asked if it was the writing of Sir F. Burdett; he said he did not believe it was. The letter was published in the British Press. Witness sent it to that paper for insertion. It was not paid for as an advertisement; but was left to the discretion of the Editors of the Papers, whether they chose to insert it or not.

Here the letter was read by the Clerk of the Court, and The British Press, containing the letter, was produced. The envelope was next read. It was directed to Lord Viscount Sidmouth, dated August 28, and signed "Francis Burdett." This letter was as follows:

"MY LORD,

"Cottesbrook, Aug. 21, 1819.

"Hearing your Lordship had applied to the Gentleman through whose hands my address to the Electors of Westminster was transmitted to the Newspapers, to give up the Author, and had at the same time intimated that a refusal would subject him, as well as the Editors of the Papers, to a ministerial prosecution, I take the liberty, in order to save your Lordship further trouble, and also the Gentlemen above mentioned, and unjust prosecution, to inform your Lordship that I am the author of the address in question; and moreover to assure your Lordship, that although penned in a hurry, and under the influence of strongly excited

feelings, I can discover nothing in it, on a re-perusal, unbecoming the character of an honest man, and an Englishman.

"I remain,

"Your Lordship's most obedient
"And very

humble Servant, "FRANCIS BURDETT."

"Lord Viscount Sidmouth."

Mr. Tooke an attorney of London was then called, and proved the hand-writing of Sir F. Burdett to the envelope.

W. Simpkin, the keeper of the tollgate near Kirby, being called said, that he saw Sir Francis Burdett near the gate on the 22d of August last. The gate was about 100 yards from the house. of Sir Francis Burdett. He saw him again on the following day about the same place. . This was in the county of Leicester,

The witness having retired from the box, was recalled, and asked some questions by Sir Francis Burdett. He did not know that Kirby-farm was on the borders of several counties. knew that it was in the county of Leicester.

He

Mr. Sergeant Vaughan stated that this was the case on the part of the Crown.

He

Mr. Denman rose, and observed, that from the evidence which had been given, it appeared that no case was made out, and that the defendant was not called upon to answer the charge. meant to submit that there was no proof whatever of the publication of the letter in question in the county of Leicester. It had been proved that Sir Francis Burdett was in the county at the time at which the letter was dated. But there was nothing like any evidence of any publication in the county of Leicester. Now he contended that there must be not only proof of publication, but of publication within the proper jurisdiction, before the defendant could be required to answer the charge. He would put a case, which would show that it was as consistent with probability that the publication took place in any other county. He would make the supposition that Sir Francis Burdelt rode out, on the day the letter was written, to a neighbouring county, and there saw Mr. Bickerstaff, and delivered it to him. He did not say

that there were not facts to be submitted to a Jury, if the information were properly laid; but there was no evidence of any publication in the county of Leicester; and the Jury would be perjured, if they were to draw one conclusion as to the publication, when several other conclusions might, with equal probability, be

come to.

Mr. Clarke rose, and objected to the course taken by his learned friend, who, while arguing a question of law, was going into facts of evidence, which were only fit for an address to the Jury.

Mr. Denman could not admit that he had advanced any thing improper in his argument. If he had been wrong, his Lordship would not have permitted him to go on. There were several

important cases in point, but what he chiefly dwelt on was the case of the seven bishops. The petition or remonstrance to the King was written in the county of Surrey, in the palace of the Archbishop of Canterbury at Lambeth, and there was no proof of publication in London. It was, therefore, objected that they were not called upon to answer the charge. This the Court admitted, and it was not until Lord Sunderland proved that the bishops had presented the pitition to the King in the county of Middlesex, that the objection was removed. In the present case, the letter was supposed to be written and delivered in the county of Leicester, and the printing took place in London. But the principle was the same. If the facts were such as to leave a doubt as to the place of publication, the case could not be referred to a Jury. It was impossible to suppose that a Jury could be called upon for a decision under such circumstances. But let it be supposed that the letter had been put into a post-office in the county of Leicester, that was no publication according to law, and the answer to the charge in that case ought to be-Not Guilty. Therefore, in the view in which the case of the Crown is the strongest, it is insufficient. The case of "the King against Williams," which might be seen in Campbell, 215, was in point. In the case of "the King against Watson," which was a case of challenge, a letter was put into the Post-office in Gerrard-street; but that was not held an act of publication: but the prosecutor, General Gwyn, having received the letter in the King's-mews, that made out the publication. It was impossible the Jury could give a verdict if they were not satisfied with regard to the place of publication. Suppose that Sir F. Burdett, in riding out, had delivered the letter at the post-office of Hookham, in Rutland, shire; or that he had met Mr. Bickerstaff out of the county, and delivered the letter to him. But the case of the seven Bishops was sufficient for his purpose, for if there had been no proof of the delivery of the petition in London, the trial could not have proceeded.

Mr. Phillips followed on the same side. The writing of the letter was not a publication by Sir Francis Burdett; it never was published until it came to Middlesex; and there was not even any evidence to show that the letter was ever written in Leicestershire. In the case of the Seven Bishops, they admitted that they wrote the paper in Surrey; and then it was admitted on behalf of the Crown, that there was not any evidence of justification in Surrey. The present was a case not only in point, but even much stronger; for there was neither admission nor evidence to show that this letter was written in Leicestershire. There was

not the slightest evidence to show where Mr. Bickerstaff received the letter. The onus rested on the Crown to show how it came out of the hands of Sir F. Burdett to Mr. Bickerstaff. No such thing was done, and therefore there was a complete chasm in the evidence.

Mr. Justice Best was of opinion that there was evidence sufficient to go to the Jury; and the objection now put might hereafter be urged in another place, in arrest of judgement, if a conviction should take place. The case of the seven Bishops was different; for the libel then was tried in the County in which it was alone circulated. In the case of Justice Johnson, it was decided that he might be tried in Middlesex for the letter which he had sent to Mr. Cobbett, and which was published in his Register; but that decision did not show that he might not be tried in Ireland, where the letter was written. On the same principle, it did not follow, from the cases quoted, that Sir F. Burdett might not be tried Leicestershire. It would be for the Jury to say, whether they thought there was sufficient evidence to show, that the letter had been written in Leicestershire.

After a lapse of about ten minutes, during which the Judge, Jury, and Sir Francis Burdett retired,—

SIR FRANCIS BURDETT, at about half-past twelve, rose to address the jury. He began by thanking the learned sergeant for the handsome manner in which he had spoken of him; and said, any observations he should have to make respecting ex-officio prosecutions, he begged it to be understood that he meant them to apply to the nature of the office, and not to individuals. He, should, however, have been glad, had the Attorney-General been present himself, as it was always most pleasant to have the person with whom one has to contend, face to face. He must now observe, that he was placed in a very peculiar situation. It seemed to be a doubt-a doubt even in some measure with his Lordship, whether he ought to be standing in that Court on the present charge. This would not have been the case had the charge been brought by indictment before the Grand Jury of the county where the publication took place. He should then have been saved many unpleasant circumstances, and the Jury would not have been required to decide a very doubtful question of fact. They were called upon to declare that a fact had taken place, of which there was not the slightest shadow of proof. It was presumed for here every thing was presumption, though he had always thought, that in a court of justice, and particularly in an English court, facts, and not insinuations, were to be rested on ; -it was presumed that the letter in question had been put into a post-office at Leicester. But suppose this the fact-suppose it written at Kirby Farm, and forwarded from Leicester, which he