The Jury withdrew two hours and twenty minutes, and returned a verdict, GUILTY OF PUBLISHING. care that the punishment should come to few and the example to many; and surely there is no blame to be imputed to the executive government, when the offence was so disseminated, that a few, or that one only, for we treat of only one to day,-that the punishment being inflicted upon one person, the example might come to many. Gentlemen, the book is before you; if you think it necessary to look through the whole before you give your verdict, that you will certainly do, because upon the whole contents of the book your judgment upon criminality or innocence is to be formed. If the parts which have been extracted from it have been unfairly garbled, and taking the whole context together, that does not belong to them which the information states, take the context, and if the context compels you to acquit the defendant, you must acquit him. That it was purchased from the person who is now the defendant iu this cause has been proved and is not controverted. But you are asked, and very properly asked, not to convict him unless he had an intention to offend. -To enter into the hearts of men belongs to him who can explore the human heart, it belongs to human judicatures to judge of the intention by the overt act of the person; and therefore if in all cases positive proof must be brought of evil intention, it would be proclaiming impunity for all offences where the intention goes to constitute the offence, which is almost all criminal cases whatever. It may occur to a man that death is a consummation devoutly to be wished for, and he may think it a laudable act to put an end to the lives of as many people as he can, because it is that consummation; and if a man indicted for murder were to tell you by his advocate, that this act was done from the purest intentions in the world to take the object out of the miseries of this world, and you were called upon not to convict unless you had positive evidence of the badness of the intention, I know not how crimes are to be punished. In this case and in all others, we must refer to the act the party has done and ascribe that to the intention of doing good, of doing evil, or of doing neither good nor evil, to which of those motives it ought to be ascribed. You will, under the solemn obligation you have been so often reminded of, answer that question and want no advice from me. The cause is all in your power, and in a power which does not take its rise from the act of parliament, but which arose from principles interwoven with our constitution, which juries before have exercised beyond all doubt. If you think the defendant is guilty of publishing that which trenches upon the government of the country, he will then be liable to punishment: on the other hand, if the man is innocent, he has a right to be acquitted by your verdict. Lord Kenyon. The verdict should be GUILTY, OR NOT GUILTY. Juryman. We have considered the case, my lord, maturely, and this is the only ver dict we can give. Lord Kenyon. I have no right to ask what are your doubts, gentlemen. If you have no doubts to state to me, I can have nothing to say to you voluntarily. Juryman. We have canvassed the point as well as we could: we can find no other verdict. Lord Kenyon. I do not know the meaning of the words "Guilty of Publishing."-I don't know in what that guilt consists. You are bound to try the issue; you are sworn to try it. -The country will expect a verdict from you. The Jury withdrew again, and in about forty minutes returned with a verdict of GUILTY OF PUBLISHING THAT BOOK. Lord Kenyon. Gentlemen, you should give some verdict-but if you persist, I must record it as it is. Juryman. We have very maturely considered the case, my lord, since we went out of court; we cannot give any other verdict. The verdict was then recorded, GUILTY OF PUBLISHING THE PAMPHLET IN QUESTion. Of the proceedings which took place in consequence of the verdicts given in this and the preceding case, I have not discovered any printed account.-For the communication of the following particulars, I am indebted to that distinguished member of the profession, Mr. Gurney, who was, on both occasions, of counsel for the defendant. In the beginning of Michaelmas Term, 1793, the attorney-general (now lord chan cellor Eldon) moved the court of King's-bench for a rule to show cause why the verdict in this case should not be entered up according to its legal import*: a rule to show cause was granted, and the counsel for the defendant were instructed to show cause; but the argument did not take place, nor was the case publicly mentioned. The reason assigned for its not being brought on was the pendency of the case which had been reserved at the Old Bailey for the opinion of the twelve judges, and it was thought fit, that that should be argued first. As the defendant was out on bail, in that case, he never applied to have it argued; the crown did not apply, and it was not argued or decided. The case in the King's-bench has never been mentioned since. *The same motion that was made in the case of Woodfall: ante, vol. xx. p. 903. A 579. Proceedings on the Trial of an Indictment against WILLIAM WINTERBOTHAM,* for Seditious Words uttered in a Sermon, preached on November 5th, 1792; tried at Exeter, before the Hon. Sir Richard Perryn, one of the Barons of his Majesty's Court of Exchequer, and a Special Jury, on July 25th: 33 GEORGE III. A. D. 1793.† Counsel for the Crown-Mr. Serjeant Rooke, | abused and brought into disuse; and it parin 1793, one of the Justices C. B.; Mr. Ser-ticularly behoves me to speak of the present jeant Lawrence, afterwards successively one times," (meaning thereby that the said laws of the Justices C. B., B. R., and C. B.; Mr. were in the present times abused and brought Morris, Mr. Fanshawe, Mr. Clapp. into disuse by his said majesty's government). Solicitors-Messrs. Elford and Foot, of Plymouth Dock. Counsel for the Defendant-Mr. Gibbs, in 1813, Lord Chief Baron of the Exchequer, in 1814, Ch. Just. C. B.; Mr. East; Mr. Dampier, afterwards one of the Justices B. R. Solicitor--Mr. John Saunders, of Plymouth. JURY. William Tucker, of Kilmington, Devon, F. J. Ing. Fortescue, of Buckland Filleigh, do. Wm. Hallet, clothier, of Thorncombe, ditto. Mr. Clapp. THIS is a prosecution against the defendant Wm. Winterbotham, for that he maliciously and seditiously intending to disquiet, molest and disturb the peace and common tranquillity of our lord the king, and of this kingdom, and to traduce and vilify the happy constitution and government of this kingdom, and to bring the king and his government into hatred and contempt, and to excite the subjects of the king to sedition against his government, on the 5th day of November last, did preach, speak, and publish the following words, to wit: In the second Count-of and concerning a supposed revolution in the government of France, whereby the ancient monarchical government of the country was supposed to be subverted, and a republican government established in its place: and of and concerning the government of this kingdom; these seditious words following: "I" (meaning the said Wm. Winterbotham) highly approve of the revolution in France" (meaning the said revolution in the government of France)," and I" (meaning the said Wm. Winterbotham)" do not doubt but that it has opened the eyes of the people of England," (meaning that the people of England saw there was a necessity for a similar revolution in the government of this kingdom). In the third Count-of and concerning the laws and government of this kingdom, these seditious words following: "Why are your streets and poor houses" (meaning the streets and poor houses of this kingdom)" crouded with poor" (meaning the poor of this kingdom), " and your gaols with thieves" (meaning crowded with thieves) "but because of the oppressive laws and taxes?" (meaning that the laws and statutes of this realm, and the taxes imposed on the subjects of this realm, thereby were oppressive). "I" (meaning the said Wm. Winterbotham) “am astonished that you" (meaning the subjects of this kingdom) "are quiet and contented under these grievances, and do not stand forth in defence of your rights." The fourth Count-similar to the third. In the fifth Count-of and concerning the laws and government of this kingdom, these seditious words following: In the first Count-of and concerning the revolution in the government of this kingdom, in the year of our Lord 1688, and the "You fancy you live under a mild governlaws of this kingdom then made, these sediment" (meaning the government of this kingtious words following: "The laws" (meaning the laws of this kingdom)" made at that time" (meaning the time of the Revolution) "have been since Published by the defendant. dom)" and good laws," (meaning the laws of this kingdom), "but it is no such thing," (meaning the government of this kingdom was not mild, and the laws of this realm were not good). In the sixth Count-of and concerning the national debt of this kingdom, and certain monies lately paid and applied in reduction thereof by authority of parliament, these seditious words following: "I" (meaning the said William Winterbotham) "speak boldly"-" I" (meaning the said William Winterbotham) "deny it" (meaning that any money had been applied in reduction of the national debt); " for it is no other than a person taking money out of one pocket, and putting it in the other" (meaning the other pocket). The twelfth Count-similar to the second. The thirteenth Count-similar to the third, fourth, fifth, and tenth. In the fourteenth Count-of and concerning the taxes imposed by the laws and statutes of this realm upon the subjects thereof, these seditious words following "Under these grievances" (meaning the said taxes)"'tis time for you" (meaning the subjects of this kingdom)" to stand forth in defence of your rights." In the seventh Count-of and concerning the granting by the Commons of Great Britain in parliament assembled of supplies to his majesty for the public services of this nation, and the application of such supplies when granted, these seditious words follow-mon.-Before such a jury as I am now ading: Mr. Serjeant Rooke. I stand forth authorized by government to prosecute the defendant William Winterbotham, a dissenting preacher, for having preached a seditious serdressing, it will scarcely be necessary for me to go into the subject of government, and I believe there will be little difference between me and the gentlemen concerned on the other side, upon that subject.-Without subordination, there can be no government; and without government society cannot exist; and those who would produce anarchy, would wish to put us in a worse condition than we should be in under the government of Turkey.—It has been laid down by divine authority, that there is no power but what is derived from the Supreme Being-therefore to cry out against the government where there is no occasion, is a crime. And for a man living under mild and equal laws, to preach sedition and discontent, is blasphemy against the ma "When there is a demand made to the House of Commons," (meaning the Commons of Great Britain in parliament assembled), "for a supply," (meaning a supply to our said lord the king, for the public service of this nation, " they" (meaning the Commons of Great Britain in parliament assembled) "deny it" (meaning deny granting the said supply) "at first" (meaning on the first demand of the said supply), "and on a second demand" (meaning a second demand of the said supply) "there are two thirds or three fourths" (meaning two thirds or three fourths of the said Commons of Great Britain in parliament assembled)" will grant it" (meaning the said supply); " and then they" (meaning the said two thirds or three fourths of the said Com-jesty of Heaven.-Till of late, there has been mons of Great Britain in parliament assembled), “will share it" (meaning the said supply), "among them." In the ninth Count-of and concerning the said late supposed revolution in the government of France, and of and concerning the subjects of this kingdom, these seditious words following "We" (meaning the subjects of this kingdom), "have as much right to stand up as they did in France for our liberty" (meaning and intending it to be believed that the subjects of this kingdom ought to stand up to effect a revolution in the government of this kingdom similar to the late revolution in the government of France). The tenth Count-similar to the third and fourth. In the eleventh Count-of and concerning our said lord the king, these seditious words following: "His majesty," (meaning our sovereign lord the now king) 66 was placed upon the throne" (meaning the throne of this kingdom)" upon condition of keeping certain laws and rules; and if he" (meaning our said lord the king) "does not observe them" (meaning the said laws and rules), "he" (meaning our said lord the king), "has no more right to the throne" (meaning the throne of this kingdom), "than the Stuarts had" (meaning the family of the Stuarts heretofore kings of England). $ no attempt to deny these principles; but in a neighbouring country, never remarkable for religion, there has been a new light sprung up. But if we look to that country we shall find nothing there to lead us to imitate them; we shall there see a desire of overturning all the old establishments under which we have lived so happily for a great number of years, and which till very lately were never thought about as subjects of investigation. The success of the French had induced their friends in England to stand forth and avow their principles; and one gave encouragement to the other, till at last it spoke out little short of treason.-In all parts of the country. persons were trumpeting forth sedition, till government found it necessary to interfere. The defendant Mr. Winterbotham, a dissenting teacher at Plymouth, thought proper on the 5th of November last to preach a sermon of the most inflammatory nature.-You have heard the particular passages of what the witnesses which I shall call can remember of the sermon.-It is not to be expected that a person could carry off in his memory the whole sermon-it is most likely he would take notice of what was particularly grateful or particularly obnoxious;-and it is next to impossible if he paid attention, that a hearer should not collect the general tenor of the sermon. With respect to the tendency of the words as laid in the indictment, if the wit nesses I shall call should prove those words, or any thing like them, it is impossible for you to have a doubt whether they are seditious, or whether the defendant intended to excite sedition by them. [The serjeant here enumerated the words laid in the several counts of the indictment.] I would ask whether these words tend to conciliate the people to the government?How it is possible to explain these words away, or persuade the jury that they had not the tendency of exciting the people to sedition I know not. If ever the trumpet of sedition was sounded in the pulpit, it was done in this instance. Do you know the defendant?—Yes. What time was it when you went?-About seven o'clock. Had Mr. Winterbotham begun his discourse? Yes. Do you know where his text was?—No. What was he preaching about?—He was then speaking of the riots in Birmingham, where he said there had been a lawless mob; that the dissenters there were much oppressed, and that they above all others were much oppressed. Well, what else did he say?-Did he say any thing about the revolution?-[To this mode of examination an exception was taken by the defendant's counsel, but over-ruled by the judge.]-Yes. What did he say about the revolution ?— Said the Revolution of 1688 he very much approved of,- he called it a glorious Revolution;-he said he was very sorry to see the laws so abused, and brought into disuse. What, did he say the laws were abused ?— He said they were not now as they were at the Revolution, and when first instituted. Well, and what else did he say?—He then spoke of the present times-said he approved of the revolution in France very much-and he endeavoured to expose the old despotic government of France;-said he did not doubt but it had opened the eyes of Britons.-He then spoke of the method of tax-gathering in England, and said a tax-gatherer will come into your house, and demand your property out of your pocket, without satisfying you to what purpose the money is to be applied :he said that was not liberty for a Britonevery man had a right in a land of liberty, to know how his money was to be applied.-He then spoke of the expenses of the late armaments—said he disapproved of three of them, The defendant said, "You fancy you live under a mild government and good laws, but it is no such thing."-What could these words mean, but that they did not live under a mild government and good laws?-Whether the assertion relative to the House of Commons granting supplies, was founded in ignorance or not, the defendant certainly intended to make the people dissatisfied with the House of Commons. The words laid in the several other counts are of the same nature. And a minister of the gospel, who uttered such a discourse from the pulpit, betrayed his duty with respect to that gospel which he pretended to preach, the doctrines of which breathe nothing but peace; and in opposition to that peace for which he pretended to pray, thereby endeavoured to stir up the minds of his audience to mutiny and rage, and to put them into such a state of rebellion as we have seen in a neighbouring country.-If ever a country had warning of the pernicious effects of sedition and tumult, it is this country; we have had warning by what passed in king Charles's time-we have had warning by what passed in the year 1780, when we knew what it was to have popular disturbances-and we have had warning by what has lately passed and said they were manoeuvres for minison the other side of the water.-Our constitu- ters to make up their accounts;-said then, tion has made us happier than any other na- how are your streets crowded with poor, your tion upon earth, and if we are not content, poor houses with vagrants, and your gaols we must deservedly fall;-but if we are thank-with thieves-it is all owing to your oppresful for its blessings, as we ought to be, we should repress those people who endeavour to instil a contrary doctrine into the minds of the public. When offenders of this sort are brought before us, we should without remorse find them guilty. If the jury should think the defendant guilty of the offence laid to his charge, they will say so without regret. I shall now call the witnesses for the crown, and prove that the defendant spoke these words; and I have no doubt but you, gentlemen of the jury, will find your verdict accordingly. EVIDENCE FOR THE CROWN. On the 5th of November last, were you at sive taxes. He then said he had often heard people talk what a happy land they lived in, and what a mild government they laboured under; but that it was no such thing;-he was much astonished at their quietness; and added, it is high time you should stand forward to defend your rights. He then said he was sorry to see justice so abused-said no magistrate or justice had any right to hold his office, unless he obeyed his trust, not even his majesty, if he did not see the laws duly observed, he had no more right to the throne than a Stuart; and he concluded by saying, he hoped we should soon see better times. Cross-examined by Mr. Gibbs. Mr. Winterbotham, I believe, is a baptist? Are you of that persuasion?-No. Pray as you are not of that persuasion, what led you to go on that evening to this place of worship?-I was informed that Mr. Winterbotham was going to preach a political serinon, and for that reason went. That was your reason for going?—Yes. Then you did not go for your instruction? No; I did not know what he was going to say. Pray what are you?-A member of the church of England, and a brush-maker. Were you ever at this meeting before?Yes, several times. You don't know the text?-No. Pray did you never hear what the text was? -I heard some words spread about Plymouth as the text, but did not believe them. Did you never tell any one what the text was?-No; the words spread about the text were something about binding kings in chains and nobles in fetters of iron. Why did you not believe that to be the text?--I had a better opinion of Mr. Winterbotham, and thought he knew better than to preach from such a text. | congregation consisted of about two hundred. And though there were two hundred persons present, you never could find any one that could tell you where the text was?-No; though I inquired of many. I inquired of Mr. Channens, and he told me part of the text was, "I will teach them to thy children in time to come." Did you think that text improper?—No. Did you think it consistent with the sermon?-Yes: I thought that text consistent with what he preached. Do you recollect Mr. Winterbotham's saying any thing about the gunpowder plot in his sermon, or our deliverance from popery? -I don't recollect he said any thing about the gunpowder plot; but he spoke of the Revolution as a crisis when we were delivered from papal power; and he spoke of the principles on which the Revolution was founded, and said something about king William, but I cannot remember what it was. You don't recollect that any thing was said about the gunpowder plot, nor what was said Did you make any minutes of what you about king Williain; but you recollect very heard? Not before I gave information be-particularly those things you have taken upon fore the mayor. You have done it then since?—Yes, about a month after. How long was it after the sermon was preached, before you went to the mayor in order to give an account of what you heard preached? It was soon after-I went and gave a verbal account. And is the account you have given now, the same with that you gave before the mayor of Plymouth?--As well as I can recollect, I related to the mayor of Plymouth all the cumstances I have given in evidence. you to give in evidence?-I made minutes of what I heard, and which were the same as I have now delivered. Were there no innocent parts in the sermon which you recollect?-There were very little innocent parts in the sermon. Pray how long was Mr. Winterbotham in preaching this sermon? About three quarters of an hour. And during all this time, you don't recollect any part of the sermon that was innocent? cir-During the whole time, all he preached from beginning to end was very seditious. The first part of Mr. Winterbotham's sermon which you heard was about the riots at Birmingham-did you look on that as seditious?Mr. Winterbotham introduced his sermon with an account of the riots--when he said the dissenters were oppressed, I did not in particular object to that, but thought it an improper observation. And then he spoke of the revolution. In what manner, pray, did he speak of it?-He spoke of the Revolution in an honourable view, call'd it a glorious Revolution-but said it was deviated from since that time. He said it had been deviated from. Did he say in what instance it had been deviated from ?-I understood that he said the laws were abused and brought into disuse. You understood so; are you positive he said so?-Yes, I can swear positively to that. You heard the introduction to the discourse, but you don't know where the text was; did you never inquire of any of the congregation? or did you never hear any person say where the text was?-I never heard what the text was, but I heard people say that the text was not consistent with the sermon. How many persons do you think were present when this sermon was preached?-The How far do you think Mr. Winterbotham had proceeded in his sermon when you first went in ?—I cannot tell. Was the sermon divided into parts?-Yes, I remember it was divided; but I don't remember any of the divisions, only the last, when he said he should treat of the present times this was all I collected. : Then you do not recollect any passage in the sermon that was innocent?-There might have been such, but I cannot recollect them. There has, I believe, been a considerable deal of conversation about this sermon; did you never hear any persons speak of it in a very different light? have you not heard it spoken of as a discourse very well adapted to the occasion for which the day is set apart, and as being very innocent?—Yes; I have often heard persons say so. In giving your evidence, have you given Mr. Winterbotham's own words?—Yes; as nearly as I could. You have told us Mr. Winterbotham said, his majesty, if he did not see the laws duly observed, had no more right to the throne than a Stuart; what did you understand by a Stuart-I understood he meant by a Stewart, some officer under the crown;-I considered it in the light of a gentleman's steward. |