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Court of King's Bench, June 5. The Kingv. Thomas Jonathan Wooler. -This was an information filed against the defendant by the Attorney-general for printing and publishing a libel. His plea was, Not guilty.

The Attorney-general said, that the libel charged in the information was contained in a periodical paper called The Black Dwarf, of which the defendant was the author and printer. The number comprised in the libel was dated April 2d, and the information contained two counts: the first was for a libel on the ministers employed by the king in the administration of the government; and the second was for a libel on two distinguished individuals, members of that administration.

The Attorney-general, after some remarks by way of preliminary, proceeded to read the libel in question. He particularly dwelt upon the charge, that the administration "talked of patriotism when they meant plunder;" and that their object in embarking in a war against France was not to conquer that country, but ourselves. And he appealed to the good sense of the jury, if the whole were not a gross, scandalous, and seditious libel, calculated to bring the government of

the country into contempt, and to stir up the people to disorder and sedition. He afterwards noticed the libel upon Lord Castlereagh and Mr. Canning, arguing that the purpose of it was the same, though its malignity was restricted to two individual members of the government.

Benjamin Steill was next called to prove the publication, but it was admitted by the defendant as his own act.

Mr. Law then read all the parts charged in the accusation as libels.

The defendant then commenced his address to the jury; and it cannot be denied that the spirit of it obtained the applauses of a great part of the audience, which the sheriffs found it difficult to repress.

Mr. Justice Abbot, the judge, whose office it was to charge the jury, began with stating the general nature of the crime of libel. It is open (said his lordship) to every subject of the kingdom to discuss the measures of government, provided it is done reasonably, fairly, and impartially; but if he chooses to issue forth to the world slander and calumny, he is a libeller, and becomes amenable to the law. He then noticed various observations made by the defendant which were not correct in point of fact; and he concluded with expressing his opinion very M 2


decidedly that the productions in question were libels.

After the jury had consulted a short time, one of them asked his lordship, supposing they considered the facts stated to be true, were they still by law bound to find the publication a libel.

Mr. Justice Abbot answered (but not quite audibly), that the truth of the fact did not justify the libel-and he read to them Lord Raymond's opinion upon the question.

The jury retired for two hours and a half, and then returned to the court, the foreman standing with three of his fellows at the door of the judge's room: the other jurymen were behind them.

Mr. Law (clerk of Nisi Prius) then put the question in the usual form, whether they found the defendant guilty of the misdemeanor charged in the information, or not guilty?

The Foreman answered, We find him guilty; but three of the jury wish to state special grounds.

Mr. Justice Abbot said, your verdict must be a general verdict of guilty or not guilty. Do I understand you to say, that you find the defendant guilty?

The Foreman bowed, and appeared to answer "Yes."

Mr. Justice Abbot. Is the verdict of guilty the verdict of all the gentlemen of the jury?

The Foreman again bowed, but if he said any thing, it was inaudible beyond the bench.

After the jury impannelled for the trial of the second information had retired, Mr. Chitty said, that he hoped it would not be consider ed as an impertinent intrusion, if he mentioned to his lordship, that

three of the jurymen stated that they had not brought in their verdict, Guilty.

Mr. Justice Abbot. When I put the question, the foreman answered in the affirmative, that it was the verdict of the whole jury.

Mr. Chitty. Three of the jury understood that they were to go back and reconsider, as your lordship could only receive a general verdict.

Mr. Justice Abbot. I take it for granted that the crown only wishes to obtain a verdict by legal means. No gentleman objected to the verdict at the time; and an answer was given that they all concurred. It may be extremely dangerous, if, after a jury has retired after giving in their verdict, any attention could be paid to the statement of some of the individuals. I certainly do not wish to infringe upon the privileges of the jury: but after a verdict has been received and recorded, I cannot allow a part of the jury, after they have withdrawn, having delivered in the verdict as the verdict of the whole, to say that they did not agree.

Mr. Wooler said, that the jury offered a paper to his lordship, who declared that he would not receive their objections.

Mr. Justice Abbot affirmed that he said, he would receive any thing that proceeded from the whole of the jury, but nothing that proceeded from a part of it. He asked, in a tone of voice quite audible, if the verdict of guilty were the verdict of all, and he was told that it was.

Mr. Wooler. The whole of the jury is here; they have never separated;

parated; and the verdict at present is only the verdict of nine, not of twelve.

Mr. Justice Abbot. I have delivered my judgment upon it: if it be incorrect, you will have an opportunity of correcting it hereafter.

Mr. Wooler. I have no means of appealing against your lordship's judgment hereafter. This cannot be justice, my lord! The three jurymen are ready to depose on affidavit that they did not consent to the verdict.

June 6.—The King v. Thomas Jo

nathan Wooler.

Mr. Justice Abbot, at the sitting of the Court, addressed the rest of the Bench as follows::

I wish to take the earliest opportunity of reporting some circumstances which occurred yesterday at Guildhall, in the course of a trial which took place before me. The case to which I allude was an information by the AttorneyGeneral against a person of the name of Thomas Jonathan Wooler, for a libel. After the case had been gone through, the Jury retired to consider of their verdict, and while they were absent another case was called on, the trial of it was proceeded in, and just before the reply in the second case was concluded, the door on my left hand was opened, in order to admit the gentlemen of the jury, who had returned after considering of their verdict; and as soon as the reply was finished, in one or two sentences, the names were called over by the officer in the usual way, and answers were given in the ordinary manner. The foreman of the jury then said, that the jury

found the defendant guilty, but three of them were desirous, or had desired him, on their part, to add something. I then interposed, and observed, that I thought I could not receive any thing coming from a part only of the gentlemen of the jury; that the verdict must be the verdict of all; and I then asked (speaking, as I thought, in a very distinct and audible voice) whether all the jury agreed in the verdict? I was answered that they did, and at that time I heard no dissent expressed by any person. The situation, however, was such, the jury not having all of them come into my view, that it is not altogether impossible that some mistake or misapprehension might have taken place; it is not impossible that some might not hear distinctly what had been said.

The jury having then retired, and the door being shut again, I proceeded to sum up the cause in progress; and when I had concluded, (it not being decorous to interrupt me), and after the second jury had retired to consider of their verdict, a gentleman at the bar suggested, that some of the gentlemen of the first Jury had not concurred, nor intended to concur, in the general verdict delivered; or had been desirous that the verdict should be received with some degree of qualification. I have not the words very distinctly now in my mind, but the circumstances 1 have stated. I farther understood, that some of the jury were present, in or near the court. I then said, that the verdict of the jury had been recorded, and that it seemed to me, that sitting in that place, I could not do any thing in the matter. I do not know


whether I made use of the sentiment; but it certainly impressed my mind, that it would be extremely dangerous if, after the jury had retired from the bar, a judge then in Court could receive and act upon any communication from them. I therefore was of opinion that the verdict must stand as the verdict of the jury. I wished to take the earliest opportunity of stating this occurrence to my Lord and my brothers.

Lord Ellenborough (after consulting with the other judges).— The Court cannot, according to the authorities and precedents of law, receive an affidavit from a juryman upon the subject of his verdict; and the reason why he is precluded from making the affidavit is, because, from the circumstances, it must have been intended that that verdict was given with his assent. In order to imply this assent, it must unquestionably appear that he heard what was propounded by the foreman on behalf of himself and his fellows; and the difficulty that occurs to my mind is, whether in this case there is sufficient evidence for the Court safely to act upon, that the jury did all hear what was propounded for them, and on their behalf, by the foreman. The jurymen were not all within the view of the judge, for it seems that a part of the jury were in the room behind. I say, therefore, that we have not in this case the ordinary means existing in others, for presuming that every one of the jury heard what was propounded by their foreman. If, indeed, they did not hear it, they were not furni-hed with any means of contradiction, or of signifying any dissent or qualification.

This fact supplies a distinction from all the cases that have usually come before the Court. A verdict is generally given, the jurors standing together in the presence of the judge; and they have full opportunity of hearing what is propounded by the foreman, and of expressing their dissent if they thought fit so to do. If it could be satisfactorily made out, from the position and nearness of the jury, or from the situation of the judge, that all the jury did hear, and that none of them dissented, it would perhaps be too much to disturb the verdict, and the Court could not receive any affidavit against it. But the perfect evi dence of their hearing, and their means of assenting or dissenting, seem to be wanted here; and, therefore, I suggest, for the consideration of my brothers, whether in this case, under the uncertainty, (for any uncertainty is to be avoided, especially in a criminal proceeding,) it should not be allowed to the defendant to have the advantage of a new trial, if he should be disposed to desire it.

The Attorney-General. It would ill become me to gainsay any thing that has fallen from the Court; but I apprehend, the utmost extent to which your Lord. ship has said the defendant shall be indulged, would be, that he might be permitted to show grounds for a new trial. I should apprehend, with great deference, that it cannot be granted in this case. The jury were certainly all called over, and they answered to their names. Lord Ellenborough.-We assume that.

The Attorney-General. -All were within hearing at the time.


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TheAttorney-General. And the verdict was pronounced in such a tone of voice that it must have been heard by all present.

Mr. Justice Bayley.-The judge himself has a doubt in his own mind whether the verdict, as ultimately pronounced by the foreman of the jury, was distinctly heard by each and every of the jurors.

Lord Ellenborough.-If he had seen them there would have been incontrovertible presumption that they must have heard, unless otherwise disabled.

The Attorney-General.-I was only about to state that the Court would expect it to be made out satisfactorily that the jurors did not hear.

Lord Ellenborough.-The Court thinks it is precluded from the means of acquiring that knowledge through affidavits. That is the difficulty the Court feels. If it were not for the possibility that some of the jury did not hear, the danger would be infinite; and this danger has, in former times, no doubt, deterred such applications. I do not know that an application of this kind has ever been made.

Mr. Justice Bayley.-The Court, sensible of the difficulty, felt that it was due to my brother Abbot, and to the public, that he should make this communication. I entirely concur with my Lord in the observations he has made upon this case: it is peculiarly circumstanced, for the jury were not all within view of the judge: he could not see them, nor they him; and as soon as decorum would allow, the conmunication of dissent was made.

The Attorney-General. I was only about to add a single word. If the Court thinks that, under the circumstances, the party should have a new trial, I am sure, standing here for the Crown, I shall not resist it for a moment.

Mr. Justice Holroyd.-Otherwise the Court does not see how it can proceed to pass sentence.

The Attorney-General.-After the opinion the Court has expressed, I shall not hesitate to pray that a new trial may be granted.

Lord Ellenborough. I think,, Mr. Attorney-General, you do as becomes you. (To Mr. Chitty.) Are you instructed, on the part of your client, to the extent of authorising you to desire a new trial?

Mr. Chitty said, that yesterday he had appeared on behalf of the dissenting jurymen.

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Lord Ellenborough. Then you have appeared, and we will hear no more at least upon that matter.

Mr. Chitty added, that he now appeared, and was instructed on behalf of the defendant.

Lord Ellenborough.-Do you desire a new trial?

Mr. Chitty. I am instructed to apply to your Lordship for an acquittal.

Lord Ellenborough.-When it comes to your turn you will move for what you think proper.

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