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the libels produced were in the hand-writing of the defendant. This evidence was merely from the inspection of the character of the hand-writing, as in JOHNSON, the common case of proving a bill of exchange.

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- The counsel for the prosecution then proposed to read the libel.

ADAM, PARK, LOCKHART, and RICHARDSON, for the defendant, objected to reading the libel. Upon the proof there is no evidence to go to a jury that there has been a publication in Middlesex by the defendant. For the purpose of the argument it must be admitted that the libels were written in Dublin by the defendant, and they may probably contain internal evidence of an intent in the author to publish them in Middlesex, by sending them to Mr. Cobbett; but that is the utmost which the writings themselves establish. They might have been stolen from the defendant's bureau and transmitted by some other person to London through the Dublin and London post-offices. There is no evidence that they passed even through the post-office, except from the supposed post-mark observed by Cobbett on the cover, and there is no evidence that the cover was written by the defendant. Cobbett did not know how the letters were delivered to Budd, nor who delivered them to him. Nor-has Budd been called to prove that he received them by the conveyance of the post. This amounts therefore, at the utmost, to proof of intention to publish by the defendant living at Dublin, but it is no actual publication, by his agency and procurement, in the county of Middlesex. They cited and relied upon the case of the Seven Bishops,* wherein it was first proved that the Lord Archbishop

Hargr. State Trials, vol. 4, p. 337. Trial of the Seven Bishops, by Mr. Justice J. Powell, p. 171..

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and all the Bishops did own the petition to be subscribed by thein; which they owned at the Council Table at Whitehall." The venue was laid in Middlesex, and the counsel offered this as evidence to obviate JOHNSON. the objection of the county, as there was no other proof of publication in the county of Middlesex ; but the Court held it insufficient, and then Lord Sunderland was called in to prove an actual publication, by the bishops delivering the petition to the king at St. James's; and the Court there held that the owning of their hands did not amount to a publication.

The ATTORNEY and SOLICITOR GENERAL, ERSKINE, GARROW, WooD, and ABBOTT, after stating, that from the internal evidence of the letter itself, it would appear that the defendant therein desired Mr. Cobbett to publish it in Middlesex, were stopped by the Court.

Lord ELLENBOROUGH, C. J. "If this paper writing had only been found in the study of the defendant, he never could be convicted for a libel. There is nothing in the judgment which the Court is about to pronounce on this point, that will over-rule, nor any thing that will tend to over-rule, nor is any thing meant to overrule the doctrine laid down in the case of the Seven Bishops; but it is most extraordinary that it did not occur to any gentleman, that there is no question as to the publication here, for the publication is unquestionably by Mr, Cobbett, in the county of Middleser; and tire question is, what in any other case would be indisputable, whether Mr. J.Johnson, who is bound by any act which he procures to be done, is, supposing him to have procured it, responsible for this publication? and the question then is, has the defendant procured it? And, surely, frequent and important evidence on that subject, whether the defendant applied to Mr. Cobbett to publish, is to be collected from the papers themselves, and now we are called upon,

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to say there has been no procurement, before we have read this paper, to see whether there has been this procurement or not. Whether there was or was not such procurement, is matter fit to be left to the jury. As to the case of the Seven Bishops, those most reverend and moral persons were called upon to say, before they knew that a prosecution was to be commenced, whether the petition was their writing. The honourable feelings of those virtuous persons, thus called upon, in the presence of their sovereign, to own what they did, had a great effect. Some were supposed to answer, that they had committed the crime; but it was a species of confession extorted, and which could not stand before a court of justice, constituted as that court was; and the evidence of my Lord Sunderland was called for; and then it was held, there was evidence to go to the jury, to say, whether they did in fact deliver a paper to his majesty, and solicit his majesty to receive it. Perhaps there was then evidence. I incline to think it was evidence to go to the jury. But what was the paper itself? A libel? No; it was a fair, decent, loyal remonstrance to his majesty, praying that he would be graciously pleased not to enforce his authority in the exercise of an important prerogative of the crown, by commanding his most reverend subjects to conform to his will, by reading his royal proclamation. This petition was indeed called a libel; but was that a libel? No; but where is the analogy between that case and this? Here is a paper, which every body admits to be a libel, published in the county of Middlesex; and if the thing be a libel, as undoubtedly it is, the only question is, whether the defendant procured it to be published in the county of Middlesex. I will not observe on the communication which took place, by letter, previously inquiring how the future correspondence should be directed,

and even how he should subscribe his own. I think there may be, as the Attorney General has stated, (and he would not be misleading the court, in stating, that something is in the libel which is not to be found in it), internal evidence of the thing now in question, which would be manifested by the reading of it; so that if we were to refuse putting it to the jury, we should be defeating the ends of public justice. The question is, whether Mr. Cobbett published this libel by the procurement of the defendant? If he did, the offence is established; for by the law of the land, the publication is as much the act of the person who procures it to be done, as it is the act of him who does it. God forbid we should violate any of the principles of the case of the Seven Bishops, or any other on which the rights and liberties of the subjects of this country so much depend! We are not violating any principle whatever of law and justice, or the practice of courts of justice: we are proceeding in the fair open path of our public duty, in receiving, and therefore we ought to receive, this evidence, and lay it before the jury for their consideration."

GROSE, J. "I am of the same opinion."

LAWRENCE, J. I am also of the same opinion. The case of the Seven Bishops has no analogy to this. They were prosecuted for a petition which was presented to the king, which petition it was thought fit in those days to call a libel. It was framed in Lambeth Palace, and delivered to the king; but where delivered to the king did not appear; and in order to fix a delivery to the king in the county of Middlesex, inferences were attempted to be drawn from confessions. But handwriting in the county of Surrey was all that was proved, or rather it was admitted by some of the Bishops. Now it would be extraordinary that a hand-writing admitted in a county could be taken as proof of publication in that county; and that was all the proof in that case, except

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JOLNSON.

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that of one of the bishops having the petition in his hand when he asked an audience of the king in council, in the county of Middlesex; which confession was charged to be a publication in the county of Middlesex, of which there was not one tittle of proof. That case, therefore, has no analogy to this. Here is proof of a publication in the county of Middlesex, proof of the paper having come, to the hands of Mr. Cobbett, in the county of Middlesex; and the question is, whether or not this defendant sent it to Mr. Cobbett. Mr. Cobbett having received previous letters, inquiring whether or not it would be agreeable to him to have communication of this sort, and there having been an advertisement in his Register, that it would be so, Mr. Cobbett receives, in the handwriting (as it stands at present) of the defendant, Mr. Justice Johnson, these manuscripts. Whether the paper so received be or be not of the hand-writing of the defendant, whether or not it was sent by the defendant, or by another person, are questions surely for the jury to exercise their judgment upon. The paper must, therefore, be read. How they will exercise that judgment is another matter.

LE BLANC, J. "I am of the same opinion. Previous communication in the county of Middlesex, from whom is not now the question, is proved to have taken place with the witness Cobbett, desiring to know whether letters respecting the public affairs of Ireland would be acceptable to him, and if so, where they should be sent to. In answer to which a public communication is made where they are to be sent to, which is followed by the reception of the letters now before us. I do not speak of the direction; the letter itself stands et present proved to be in the hand writing of the defendant. It is objected that there is no proof that these letters came by the post, or by what means they came; whether they came by the post, or by a private hand, slands at present, subject to answer and observation,