Cumbria Family History Society

 Saturday 30 Nov 1816   (p. 2, col. 5 – p. 3, col. 1)
 

Mr. Sergeant HULLOCK, at the instance of the defendants, prayed the Judgment of the Court in this case. The defendants were tried before Mr. Justice BAYLEY, at the last Carlisle Assizes, and convicted of publishing a libel on Dr. HEYSHAM, a Magistrate, of Carlisle, in a newspaper, intitled the Carlisle Journal, of which they are the proprietors.
 
Mr. Justice BAYLEY read his notes of the Trial, from which it appeared that a person of the name of Jonathan SHARPE had been convicted before Dr. HEYSHAM, of having Salmon, out of season, in his possession—and the fish, seven in number, were forfeited. The libels in question, which insinuated that the Doctor had converted part of the fish to his own use, appeared in the Carlisle Journal of the 28th October and the 4th November, 1815. The first was in the following words:
 
"On Tuesday last, a person of the name of SHARPE, from Grinsdale, was convicted before J. HEYSHAM, M. D. in the penalty of £5 and costs, for having in his possession salmon after the period had expired for taking them.—The law in cases of this nature is, we understand, that the provisions, if wholesome, be given to the poor; and, if unfit for human food, be burned at the market-cross. We are sorry to state, that a very ill-natured remark has gone abroad, that the worshipful magistrate in question participated in the spoils, along with the inferior municipal authorities; but as we ourselves have experienced the calumny of the times, we are not. surprised that others in more elevated society should likewise: we therefore trust that the gentleman alluded to, will, next week, officially contradict what is spued forth by the ill-natured throat of public rumour."
 
The libel in the paper of the 4th Nov. purported to be written by a "Dreamer of Dreams," and stated in one part, that, "a grave Gentleman, with a vacant face, advanced and claimed the largest fish."
 
Mr. Sergeant HULLOCK now contended, in arrest of judgment, that the conviction, though set forth as regular in the indictment, was not a good one. Dr. HEYSHAM, he maintained, had exceeded his jurisdiction—the matter was coram non judice—before a wrong tribunal—and, therefore, the libel which spoke of a regular conviction, could not advert to him.
 
Lord Ellenborough.—"Do you think you can make any thing of that? Because he exceeded his jurisdiction, must he be exposed to any malicious remark that may be thrown out against him?"
 
Mr. Sergeant HULLOCK said, as the indictment was framed, the allegation was, that the fish were forfeited, and that the libel was concerning the fish supposed to be forfeited. Now, in point of law, the fish not being proved forfeited, the libel could not attach. The proceeding before the Magistrate, was altogether coram non judice. He had no right to claim the forfeiture of the fish in question. The indictment stated, "that Jonathan SHARPE had been, in due form of law, convicted before the said John HEYSHAM, in the penalty of £5, for, that he, during the month of October, knowingly, had in his possession seven salmon fish, by reason whereof he forfeited the salmon and the sum of five pounds; and the said salmon so forfeited, were to be distributed according to the statute, by him, John HEYSHAM; and the defendants, wishing to injure the said John HEYSHAM, accused him of being wilfully guilty of fraud and abuse of his office in the disposition of the said salmon fish." Now the libel was concerning the fish, supposed to be forfeited, and it became necessary to shew that they were forfeited, or the indictment was not good.
 
Lord Ellenborough.—"What is the offence? Having the fish in his possession, they then became forfeited, by the words of the statute, in the same manner as if he had taken them."
 
Mr. Sergeant HULLOCK submitted that they were not forfeited, and that the Magistrate subjected himself to an action for what he did on that occasion. The forfeiture was void on the face of it, because it was not incurred—and if a conviction were bad in part, it was bad in toto. If he shewed that the Magistrate had erred, in inflicting a forfeiture of the fish, the whole conviction must fall to the ground. The proceeding was had under the act of the 44th Geo. 3, chap. 45. It is an act for the better regulating the fish in a certain arm of the sea, in the county of Cumberland, and in the several waters that run into it. The 4th clause enacted, "that no person whosoever shall take, kill, or destroy any char or salmon, salmon trout, whiting, &c. in the said arm of the sea, or the waters running into it, between the 25th of September and the 1st of February, under pain of forfeiting £5 for the first offence, and 20s. for every fish.
 
Lord Ellenborough.—"If the conduct of the Magistrate be erroneous, he is not to be libelled, and to have a collateral fraud put on him. I am of opinion, at present, there is no pretence for going into this argument. The verdict is not vulnerable."
 
Mr. Sergeant HULLOCK said, his objection was, not that the Magistrate might be libelled with impunity, but that the evidence given, did not support the indictment. The indictment set forth that the fish were forfeited—whereas they were neither forfeited in law nor in fact.
 
Lord Ellenborough.—"I think it would be found an immaterial allegation that they were forfeited."
 
Mr. Sergeant HULLOCK could not see how so prominent an allegation could be immaterial. The indictment also set forth that SHARPE was convicted in due course of law.
 
Lord Ellenborough.—"The meaning of that is, that he went before a Magistrate in the regular course."
 
Mr. Sergeant HULLOCK said, there were several allegations that "the fish were so forfeited." This could not be correct, because, he submitted, that, in point of law, they were not subject to forfeiture. The 11th clause of the act, which related to persons having fish in their possession, sets forth, "that if, after one month, from the passing of this act, any person shall have in his possession fish not allowed to be taken at the time, he shall forfeit and pay the same penalties as are payable in case he took, killed, or destroyed the said fish." This clause evidently referred to the fourth and not, as had been imagined, to the 1st clause of the act. What was the penalty there provided? For the first offence a fine of £5, and 20s. for every fish. Nothing was said about the forfeiture of the fish.
 
Lord Ellenborough.—"One might be inclined to listen to your position if it were conclusive. But the preponderance of argument is in favour of the correctness of the conviction."
 
Mr. Sergeant HULLOCK said, since the Court had expressed so strong an opinion on the subject, he should press the point no further.
 
Lord Ellenborough—"I think it is an arguable point, but that it ought not to be argued here. It might have been an argument on a motion for a new trial."
 
The defendants then put in an affidavit, stating, that the defendant Francis JOLLIE, had known the Prosecutor for 30 years and lived on terms of friendship with him, and never bore him any ill-will; that the defendant Jeremiah JOLLIE had known the prosecutor 20 years, and never bore him any ill-will; that they had no wish to injure his character or hurt his feelings, and that the paragraph in question had been introduced inadvertently in consequence of a report in the town, and not from any improper motive. Affidavits were also put in from Joseph FORSTER, Edward Hervey ROWLAND, John SOWERBY, Alfred HENDERSON, James GILKERSON, Joseph GRAHAM, &c. stating that they had heard the report previous to the publication of the paper.



[to be continued]

 
 
Reproduced with kind permission of British Newspaper Archives
 

 
Affidavits were then put in on the part of the prosecution; Mr. JAMES, a surgeon of Carlisle swore, that on the afternoon of the day on which the trial came on at the assizes, he purchased one of the defendants' papers, in which there was a letter addressed to the printers, signed "Nain Jaune," in which many respectable characters were introduced and amongst them one under the designation of "O'Mull," which he was convinced was meant for Dr. HEYSHAM.
 
Mr. Sergeant HULLOCK then addressed the Court in mitigation of punishment, in a similar strain, and on the same line of argument brought forward by him on the trial at the assizes. He insisted that the defendants had inserted the libel merely as a rumour, which they did not believe, and that such insertion gave the Magistrate an opportunity of contradicting it.
 
Lord Ellenborough said, that appeared to him to be about the worst part of the libel.
 
Mr. Sergeant HULLOCK continued. He was well aware of the importance of the situation of a Magistrate. Where men sacrificed their interest and convenience in order to discharge the duties of Magistrates, they deserved the utmost praise, but their Lordships must know that there were such persons as trading Justices. He did not mean to impute this to the prosecutor; but at the trial he certainly did not think proper to come forward and deny the allegations contained in the libel; nor had he on the present occasion made an affidavit asserting his innocence of the charge. He hoped, therefore, that no punishment would be inflicted on the score of personal feelings, but that the Court would contemplate the offence only in a public point of view.
 
Mr. WILLIAMS and Mr. TYNDAL followed on the same side. They trusted that as the defendants had come a distance of 300 miles to receive sentence, and as they had already been put to heavy expenses by the prosecution, the Court would not think a severe judgment required by the case.
 
Mr. SCARLETT, for the prosecution, replied at considerable length, and with his accustomed ability. He turned the defendants' affidavits against themselves, by observing, that if they had been anxious not to injure the character and feelings of the prosecutor, a thirty years' friendship might have induced them to ask Dr. HEYSHAM how the matter really stood, to avoid misrepresentation; instead of that they acknowledged afterwards that they were mistaken in the law, but still they leave their assertion entirely uncontradicted, that a part of the fish had been appropriated to his own use, and continue to re-assert it; and further, though in their affidavits they state it to have been inserted by inadvertence, it yet remains entirely uncontradicted. He animadverted very severely on the attempt, which, he said, his Learned Friends had that day made to perpetuate the ridicule which had been so unwarrantably cast on the prosecutor. He professed himself to be a warm advocate for the real liberty of the press, but he never could consent that newspaper writers should erect themselves into a tribunal, before which the conduct of individuals was to be arraigned when they thought proper. He commented on various passages of the libel, and particularly upon the letter of "Nain Jaune," published on the very morning of the conviction. He trusted that Dr. HEYSHAM would that day receive the protection of the Court.
 
Mr. Justice BAYLEY passed sentence. He observed that the defendants stood before the Court to receive its judgment for publishing two libels reflecting on the conduct of Dr. HEYSHAM as a Magistrate. Magistrates, he observed, are entitled to the protection of the law, and the public were under obligations to these gentlemen who took upon themselves the important office. From the local circulation of the defendants' paper, the libel might have had a bad effect on the minds of a great many people, and it was not sufficient that the sufferer had an opportunity of contradicting it. It was their duty to ascertain before publication, whether the report had any foundation or not. On application to Dr. HEYSHAM he would have informed them if there had been any foundation; but instead of such enquiry, they publish the libel. Had Dr. HEYSHAM been guilty, it would have thrown great discredit on his character, and every person who might have seen the charge, might not have an opportunity of seeing any contradiction of it. The next libel contained a repetition of the insinuation. The insinuation is fixed deeper by their saying that they were mistaken in the law, not a word being then said as to his having not participated. Their affidavit stated that the article was inserted by inadvertence, but says nothing of their sorrow; it does not appear that there had been any attempt to make concession. The Court had enquired by whom the indictment was removed; their object in that enquiry was this—that as it had been removed by the defendants it threw on them the costs, which may be a material pecuniary punishment. The Court taking this into consideration; the great distance the defendants had been brought; and the inconvenience attending their having been from home upwards of a week already, ordered and adjudged that they each pay a fine of Fifty Pounds to the King, and enter into recognizances to keep the peace for three years—themselves in £200, and two sureties in £100 each, and that they be committed till such fine be paid, and such securities found. The Judges on the Bench were the Lord Chief Justice, Mr. Justice BAYLEY, and Mr. Justice ABBOTT.
 

Mr. SCARLETT said, that the Prosecutor in this case, who had been libelled in a copy of verses with notes, inserted in the paper of the defendants, was only anxious that they should enter into their own recognizances to appear for Judgment when called upon. This gives the prosecutor an opportunity, in case of a fresh libel, to make an affidavit of the fact, and have them brought up for judgment.
 
As it might be difficult for the Defendants to find the sureties in London, required in Dr. HEYSHAM's case, leave was given to produce them before a Magistrate in Cumberland.
 
 
Reproduced with kind permission of British Newspaper Archives