125]

for Leasing-making and Sedition. produced an order, signed by lord Dartmouth, one of the secretaries of state, to prosecute. Pleaded for the pannel, The prosecutor can only insist upon one of the libels, and the other two must be dropped; for the pannel cannot be obliged to answer to three libels upon the same fact at once, as that might produce three sentences against him, 1. 1, s. 3, ff. De Accusat. ; I. 11, s. 2, eodem. The list of the assize is only given out with the first libel; and therefore if it he passed from, there can be no trial. If the other two are passed from, the additional list of witnesses given out with them must go for nothing. 2ndly, The libel holds the pamphlet as repeated, or a part of the libel; it ought therefore to have been given out with the summons and citation; for no part of a criminal libel can be left in the clerk's hands more than another,

As to the first branch of the libel, which charges seditious practices, the facts charged are not relevant; because, first, by no law is the receiving such a medal forbidden; consequently the argument for receiving it could not be a crime. As to the pretence, that the medal asserts the prince of Wales's right to the crown, there is nothing on the medal which directly asserts that right; so that even the corner of the medal could not be the ground of action: and it is without precedent to punish for a pretended meaning when nothing is expressed. 2ndly, Supposing the medal asserted the Pretender's right, no law prohibits the keeping such medal, any more than the keeping or using a book that maintained that or any other bad principle. The 134th act, Ja. 6, condemns Buchanan's Chronicle; yet those people who kept it in their possession never were punished. In France, the having British coin, which asserts our sovereign's having right to that kingdom, was never reckoned punishable. 3dly, Ås to the assertion, That the Pretender had the right of blood, or words to that purpose, in the first place, this is too general, and in criminalibus non licet vagari.' 2ndly, The using such expression is not pleading against her majesty's right to the crown; for her majesty's right is not incompatible with another's having what may be called the right of blood; for blood alone gives no right to the crown; it gives a title, if the person that has it be not debarred by the want of other qualities, which our laws require. Thus many are nearer by blood to the succession than the House of Hanover; yet it is called before them, and they are excluded, because of their want of other qualities. Hence the saying, that the Pretender had the right of blood, was only saying, he was a near relation to the queen: but it did not import a denial of her majesty's just right to the crown; and therefore the argument for receiving the medal apon that ground, cannot be criminal, though the argument might be inconclusive.

As to the second branch of the libel, founded on the pamphlet: in the first place, the mere

* As to this, see vol, 12, p.

164.

composing a pamphlet, without publication,
is no crime, more than the speaking in private
where nobody hears. Writing, without pub-
lishing, can never occasion sedition. The act
131, parl. 8, Ja. 6, relates to open public speak-
ing; the act 10, parl. 10, Ja. 6, to slanderous
writings; by which such must be understood
as occasion a misunderstanding between the king
and his subjects. The act 1662 means the
same, and has been only so understood. 2dly,
Publication is not charged in the libel; all that
it alleges is, that one copy was printed by the
pannel's order: but printing one copy could
never, in the eye of law, be publication; for the
printing a single copy could never occasion dis-
gust or discord between prince and people. The
act 21 Rob. 1, and the act 1662, distinguish be
tween printing and publishing. What is print-
ed must therefore be dispersed, in order to con-
stitute publication; but that is not alleged in
the libel; 1. 1, ff. De edendo; 1. un. C. de fa-
mosis libellis; 1. 5, s. 11, ff. ibid. All that is li-
belled is the giving orders to print; but that is
not publishing: and as what was printed never
was de facto published, there was at most no
more than a conatus, which is not punishable;
1. 1, ff. Quod quisque juris; I. 10, par. 5; 1.
5, par. 10, De famosis libellis; 1. 38, s. 2, De
pœnis. So that the libel is not only founded
upon old obsolete laws, but they are stretched
beyond measure. 3dly, The pannel offers to
prove, in exculpation, that his orders were li-
mited not to print, without a licence from the
provost of Edinburgh; which shows he had no
design to raise sedition. 4thly, The pamphlet
may be understood in a good sense, as contain-
ing a view of the tenets of those who without
any just reason carp at the present administra-
tion, and a ridicule of such people. It is very
common, in an ironical manner, to commend
certain articles and principles which are meant
to be exposed; and we have satires written
against marriage, which were designed to re-
commend it. The proposition laid down in this
pamphlet, That our prince is absolute, must be
ironical; as it is plain from our history and
acts of parliament, that he is not; and that the
supreme legislative power is lodged in the king
and parliament.

Answered. To the first, The three libels
are all precisely in the same words, and are
used for the purpose of giving citations on the
To the second, The
discovery of more witnesses or new documents:
but the conclusion is one.
pamphlet is referred to as a proof of the crime
charged. To the third, The mere receiving a
medal may not be criminal; but the pleading
for receiving it in the manner libelled, shows a
design to reflect on her majesty's right, espe-
cially as it was objected to on account of its be-
ing a medal of the Pretender. The argument
for receiving it on that account, and because he
had the right of blood, which was good, was
plainly to impugn her majesty's right, as two
rights to one crown are incompatible: and this
was more than barely asserting the Pretender's

Proceedings against James Dundas,

relation to the queen; for the pleading his right
of blood, to reinforce the motto of the medal
'Reddite,' was equal to pleading for the re-
storation of the Pretender. And as this was
done publicly, it differs much from the keeping
or using bad books, which may be connived at.
And as to the keeping our money in France, it
passes there as a coin in commerce.

[728 Righteous and Lawful Sovereign of this Realm, &c. [1693.]

June or July 1692, went with his accomplices It was charged against the prisoner, that, contrary to his allegiance, he, in the month of to the market-cross of Fraserburgh, stepped upon the cross, and, after three + several O Yes's, did three several times proclaim the late king James, and the pretended prince of Wales, to be righteous and lawful king of this kingcursed all who would say the contrary: then dom, and successor to the same, and that they they drank, and caused to be drank, king Wales, and cursed king William and all his adherents; drank to his confusion; uttered reJames's good health, and that of the prince of and Burgar-master of the Hague, and saying that he was only prince of Orange: that, for proachful speeches of him, calling him Burgar, the greater solemnity, they fired guns and pis

As to the defences respecting the pamphlet, in the first place, writing is more than think ing. It is an ouvert act, and criminal of itself, by act 2, parl. 1662, and by act 10, parl. 10, James 6. 20dly, The printing the pamphlet was the most direct method of publication that could be used. And as to the pretended caution, it might be affected; for if the pamphlet was in fact published, the author must answer for the consequences, especially as copies went abroad; which are presumed to have come, and must have come, from bim or his asso ciates. As to the meaning of the pamphlet, that is submitted: the perusal of it must satis-tols from the cross on the occasion, and forced fy every person, that it cannot bear the sham commentary now put upon it by the pannel's counsel. The laws libelled on are not obsolete, when a capital punishment is not insisted for and they were mitigated by the act 1703.

The Court found, "The pannel's pleading,
at a meeting of the faculty of advocates, to re-
ceive into the collection of medals in the said
faculty's library, the medal libelled upon, for
this reason, that the Pretender had the right of
blood, and that the said right was good, or
words directly importing the same, and not by
inference, and that though the receiving of the
said medal had been objected against as injuri-
ous to the queen her right to the government,
relevant to infer an arbitrary punishment. And,
separatim, found, his giving in to the printer,
and ordering him to print the paper, entitled,
The Faculty of Advocates' Loyalty, in a Let-
ter to the Queen's most Excellent Majesty,
· by one of the Dean of Faculty's Council,' li-
belled upon and read in court, a sufficient pub-
lication thereof, and relevant to infer an arbi-
trary punishment: and repelled the haill de-
fences proponed for the pannel.”

The Diet was afterwards deserted.
Act. Sir James Stewart, T. Kennedy.
Alt. Sir W. Pringle, sir J. Naesmyth.

Arnot, in bis Abridgement of Scots Criminal Trials, has inserted the following, which may serve to illustrate the strange extravagance of the Jacobites, and the mildness with which it was punished.

Charles Lord Fraser* for High Treason, in proclaiming the late King James to be

* This family was raised to the peerage by Charles 1, A. p. 1633. The title became extinct by the prisoner's dying without issue; Douglass's Peerage, page 273.

some of his majesty's subjects to drink treasonhis rebellion against his majesty's person and authority, and his treasonable intentions to deable healths: by all which the prisoner testified pose the king, and did disown the king's title to and treasons he ought to be punished with the crown, and did all that in him lay to incite the people to take arms: for which contempts death, and the forfeiture of his estate. indictment relevant to infer the pains libelled. After a prolix argument, the court found the

lord Forrester, lord Bargeny, the master of The following persons composed the Assize: Forbess, James Oswald of Singletoun, James Baird of Saughtonhall, Patrick Murray of Livingstone, Mr. George Scot of Giblestone, William Dick of Grange, sir Alexander Gilmour of Craigmillar, James Eleis of Southsyde, sir Robert Milne of Binnie, Hugh Wallace of Inglistoun, Alexander Nisbet of Craigintinnie, William Biggar of Woolmet, and sir William Binning of Wallyfoord.

THE PROOF.

Thomas Pyper, weaver, saw lord Fraser come from the house of John Hay vintner, and go to the cross, and step upon it: he heard one in the company cry three O Yes's, and proclaim the late king James and the prince of Wales, and this was after some person had bid him proclaim, to whom he answered, what clamations, the witness heard king James's shall I proclaim, my lord?' After these proname mentioned, saw the people on the cross have drink with them, and heard the shooting of pistols. Adds, that lord Fraser was on the claimed king James. cross at the same time with the man who pro

John Wood saw lord Fraser and others go to servant belonging to the company cry three sethe cross, saw his lordship on the cross, heard a veral O Yes's, and then proclaim the late king

+ Records of Justiciary, March 29, 1695.

Trial of Richard Noble and others,

[732 448. The Trial of RICHARD NOBLE*, Gent. for the Murder of JOHN SAYERT, Esq. and of Mrs. MARY SAYER, for Petty Treason, and Mrs. MARY SALISBURY, for aiding and abetting the said Murder; at the Assizes held at Kingston-uponThames, in Surry, before the Right Hon. the Lord Chief Justice Parker: 12 ANNE, A. D. 1713.

ON Thursday evening, March 12, Richard Noble, Mary Sayer, and Mary Salisbury, were arraigned for the murder of John Sayer, esq. upon their several indictments; and pleaded Not Guilty; and were told by the Court, to prepare for their trials next morning at six o'clock.

*This Mr. Noble was the son of Mr. Noble, who kept a well-frequented coffee-house at Bath, and had an estate of about 60l. per ann. gave his son a liberal education, and put him clerk to an attorney at the Devizes, in Wilts; when Noble was out of his clerkship, he took chambers in New-inn, London, and there practised as an attorney; he was introduced by a gentleman of honour, to transact Mr. and Mrs. Sayer's affairs, (for they had various disputes) the gentleman little thinking he would have made so ill an use of his recommendation: but Mr. Noble was a gay, amorous young fellow, about twenty-eight years of age, and what any woman would have liked, and he soon found out Mrs. Sayer's disposition, went off with her, and lived with her in various lodgings in a scandalous way. Former Edition.

"This evening lady Masham, Dr. Arbuthnot and I were contriving a lie for to-morrow, that Mr. Noble, who was hanged last Saturday, was recovered by his friends, and then seized again by the sheriff, and is now in a messenger's hands at the Black Swan in Holborn. We are all to send to our friends to know whether they have heard any thng of it, and so we hope it will spread. However we shall do our endea vours; nothing shall be wanting on our part, and leave the rest to fortune." Swift's Journal to Stella, March 31, 1713.

and the prisoners were set to the bar; when On Friday morning at six, the Court sat, Mr. Noble moved to put off their trials, for that Mr. Bull, a very material evidence for them, was not come down.

Court. That must be proved by the oath of somebody, and that he was served with a Lindsey, one of the attornies concerned for the subpoena to attend here. Upon which Mr. prisoners (for they had many) deposed, that he filled up a subpoena for serving Mr. Bull, but did not serve it himself; that a messenger was sent at twelve o'clock, yesterday, to London, to serve it, but was not returned. Mr. Noble also alleged, That Mr. Page, the counsel, another was served with a subpoena, and they looked material witness, was not come, and that he for him every hour; and called Mr. Lindsey to prove this.

with a subpoena last Sunday, and that he Mr. Lindsey deposed, he served Mr. Page thought he would have been down at the trial,

care to have had his witnesses ready, and that The Court told Lindsey he should have taken there was no affidavit made of their being for his neglect, and ordered the trial to go on. material witnesses; and reprimanded Lindsey

with Mr. Nott, set forth how heinous the crimes The queen's counsel, Mr. Serj. Commyns, of the prisoners would appear to be, but what aggravated their crimes, was their endeavouring to procure witnesses to perjure themselves; and called

that one James Hannon, an Irishman, (who Daniel Reeves, who being sworn, proved,

they had not been married long, before she "We had no success in our story, though I intercession of friends came together, and quarrelled with him, and parted beds; then by sent my man to several houses, to inquire among parted again. In short, she carried on a crithe footmen, without letting him into the secret; minal conversation with two or three others, but I doubt my colleagues did not contribute before she came acquainted with Mr. Noble. as they ought." Swift's Journal to Stella, April-Though Mrs. Sayer will appear so vicious 1, 17 13.

+ This John Sayer, esq. was lord of the manor of Biddlesden, in Bucks, a gentleman of about 1000l. per ann. daughter and co- heir to admiral Nevil, (whose Married in 1699 Mary, relict married col. Salisbury) and had 3000l. to her fortune. Mr. Sayer, on the receipt of 1000l. was to settle 50%. per ann. pin-money, and for every 1000l. was to settle 100l. per ann. in trustees. She was a very agreeable, sensible woman, had some wit, but too much spirit;

years after the murder of her husband, and the and wicked in the ensuing trial, yet some few execution of her gallant, she married again an eminent physician in London. Former Edition.

lished at that time, (1713) and though not so This trial is printed from what was pubperfect as it would have been, if it had been taken in short-hand, yet it will receive considerable additions from the Case of Mr. Noble, by a barrister at law, and Mr. Noble's speeches, printed afterwards, Former Edition.

stands committed for this offence) on Thursday | before the trial, came to him, and shewed him, copies of the examinations taken before the coroner, of Samuel Derham, Thomas Gardner, and John Cox, three of the most material witnesses, to prove the murder. Hannon then gave him half-a-crown, and desired him to procure, or hire two other men to swear with him, against those examinatious, and promised him two guineas for himself; and the other two men were to have what Reeves could agree with them for, and that Mr. Noble would give Reeves a larger satisfaction than what he thought he would, or could expect.

Friday evening following, Hannon came to him again, and gave him another half crown, to spend upon Derham, Gardner, and Cox, and ordered him to make what agreement he could with them, to stifle and buy off their evidence; and the next day, Saturday, Hannon came to Reeves again to know what progress he had made, and invited him to dinner on Monday, and to bring the other two men he was to hire with him; Hannon gave him a note, of his own hand-writing, where he lived, which was at number 10, in College-street, Westminster. On Monday morning Hannon came to Reeves again, and gave him a writing in the nature of an affidavit, drawn up on stamp paper (by the prisoners he said), which he, and the two men he pretended he had hired, were to swear before a judge, and gave him nine shillings more in money; whilst Hannon was thus tampering with this witness (Reeves), he inti. mates it to the prosecutor's attorney, and after having got this affidavit from Hannon, he shuffles off from dining with him, but promises to meet him in the afternoon; and carries the affidavit to the prosecutor's attorney; when it was settled between them, that when Hannon came again, Reeves should appear steady and zealous in the affair, and a warrant should be procured to apprehend him. Accordingly Hannon came, and a warrant having been procured from justice Hartley, instead of the two persons Reeves was to procure to forswear themselves, two constables appeared; and Reeves said to Hannon, these are my two friends. Hannon embraced them very civilly. When a third constable entered, Reeves seized Hannon's sword, and asked the other constables, if they charged him with Hannon? they replying, Yes, he was seized, and carried directly before justice Lade in Southwark; where, upon his examination, he denied the fact, and prevaricated greatly; was kept in custody that night, and next morning committed to the Marshalsea for want of bail.

The words of the pretended affidavit were as followeth :

"George Smith and Samuel Shipman, both of the parish of St. Buttolphs, housekeepers, and Daniel Reeves, of the parish of St. George's, Southwark, maketh oath, that on or about the 29th day of January last, these deponents saw Mr. Cox, and Mr. Hill, the constables, with several other persons in company with Mr.

Sayer, the deceased, to go from Mr. Sherlock' house in the Mint, a brandy-shop, to one Mr. Twyford's house, wherein they entered; and on their being asked, what their business was? refused to tell; and these deponents heard the deceased Mr. Sayer, as he went into the said Twyford's house, threaten, or say, that he would be revenged on that villain Noble, and on his wife, and that he would kill them, or be killed; and these deponents saw the deceased go up stairs, and come down again, leaving both the constables above stairs; and on his coming to the parlour-door, where Mr. Noble was, drew his sword partly out, and said, Damn you, you villain, now I have found you out, and instantly pulled at the door, and broke off the bolt that was withinside the door, and thereupon the deceased after his sword was almost wholly drawn out, stept backwards, and, in about a minute, went to go down the two steps into the parlour, and seemed to be pushed down: and then some said he was in a fit, fetch him some water; but these deponents say, that they stood very near the deceased, yet could not see, nor could they believe, that any other person, considering the situation of the place, and the little door being but part open, could see who gave the said wound: And these deponents farther say, they know Mr. Derham to be a poor, necessitous taylor in the Mint, of a most infamous character, and are certain he was not in the house till after the deceased was wounded; and the sword which James Terry, the deceased's footman, and others there, said gave the said wound, was taken up in the kitchen; and further say, that before the deceased broke open the said door, they saw the said Terry, with a cane in one hand, and a brass hilted sword, undrawn, in the other hand.

"And lastly, these deponents heard the said James Terry abuse the said Mrs. Sayer, giving her very bad words; he also told her, that rather than fail, he would offer his service to the sheriff to hang her, and that he would soon see the end of her; and she answered, Sirrah! It is hard to be abused by the master and the man too; and these deponents being in the room when the deceased fell down, heard Mrs. Sayer say no other words; but believe they should, if she had said any."

Jeremiah Barnard deposed, that he was summoned to Kingston assizes, on the jury on life and death; and that one Luke Jones, a waterman, carrying Mr. Stagg, an attorney, by water, on Friday the 6th of March, and telling him, Jerry Barnard was summoned on the jury; Mr. Stagg ordered him to tell Barnard, if he was not got off the jury, Stagg could help him to 201. Jones asked Stagg on what account? Stagg answered, if he would bring in the gentleman who killed the man in the Mint, Not Guilty; all which Jones told this witness by Stagg's order; Stagg farther said, they having 1000!. and upwards, and would spend it all on the jury to save his life; for it lay in the breast of the jury only; because they had