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produced an order, signed by lord Dartmouth, , composing å pamphlet, without publication, one of the secretaries of state, to prosecute. is no crime, more than the speaking in private Pleaded for the pannel, The prosecutor can
where nobody hears. Writing, without pubonly insist upon one of the libels, and the other lisbing, can never occasion sedition. The act twoʻraust he dropped ; for the pannel cannot be 131, parl. 8, Ja. 6, relates to open public speakobliged to answer to three libels upon the same ing; the act 10, parl. 10, Ja. 6, to slanderous fact at once, as that might produce three sen- writings; by which such must be understood tences against him, I. 1, s. 3, ff. De Accusat. ; as occasion a misunderstanding between the king 1. 11, s. 2, eodem. The list of the assize is and his subjects. The act 1662 means the only given out with the first libel; and there- same, and has been only so understood. 2dly, fore if it he passed from, there can be no trial. Publication is not charged in the libel; all that If the other two are passed from, the additional it alleges is, that one copy was printed by the list of witnesses given out with them must go pannel's order : but printing one copy could for nothing. Endly, The libel holds the pam- never, in the eye of law, be publication ; for the pblet as repeated, or a part of the libel; it ought printing a single copy could never occasion disTherefore to have been given out with the sum- gust or discord between prince and people. The mons and citation ; for no part of a criminal li- | act 21 Rob. 1, and the act 1662, distinguish bebel cap be left in the clerk's hands more than tween printing and publishing. What is printanother.
ed must therefore be dispersed, in order to conAs to the first branch of the libel, which stitute publication ; but that is not alleged in charges seditious practices, the facts charged the libel; 1. 1, ff. De edendo ; l. un. C. de faare not relevant; because, first, by no law is mosis libellis; I. 5, s. 11, ff. ibid. All that is lithe receiving such a medal forbidden; conse- belled is the giving orders to print; but that is guently the argument for receiving it could not not publishiny: and as what was printed never be a crime.
As to the pretence, that the medal was de facto published, there was at most no asserts the prince of Wales's right to the crown, more than a conatus, which is not punishable; there is nothing on the medal which directly 1. 1, ff. Quod quisque juris; I. 10, par. 5; 1. asserts that right; so that even the corner of 5, par. 10, De famosis libellis ; 1. 38, s. 2, De the medal could not be the ground of action : penis. So that the libel is not only founded and it is without precedent to punish for a pre- upon old obsolete laws, but they are stretched tended meaning when nothing is expressed. beyond measure. 3dly, The pannel offers to 2ndly, Sapposing the medal asserted the Pre-prove, in exculpation, that his orders were litender's right, no law prohibits the keeping mited not to print, without a licence from the soch medal, any more than the keeping or provost of Edinburgh ; which shows he bad no using a book that maintained that or any other design to raise sedition. 4thly, The pamphlet bad principle. The 134th act, Ja. 6, condemns may be understood in a good sense, as containBuchanan's Chronicle; yet those people who ing a view of the tenets of those who without kept it in their possession never were punished. any just reason carp at the present administraIn France, the having British coin, which as- tion, and a ridicule of such people. It is very serts our sovereign's having right to that king. common, in an ironical manner, to commend dom, was never reckoned punishàble. 3dly, Ås certain articles and principles which are meant to the assertion, That the Pretender had the to be exposed ; and we have satires written right of blood, or words to that purpose, in the against marriage, which were designed to refirst place, this is too general, and in crimina- commend it. The proposition laid down in this • libus non licet vagari.' 2ndly, The using pamphlet; That our prince is absolute, must be such expression is not pleading against her ma- ironical; as it is plain from our history and jesty's right to the crown; for her majesty's acts of parliament, that he is not ; and that the right is not incompatible with another's having supreme legislative power is lodged in the king What may be called the right of blood; for blood and parliament. alone gives no right to the crown ; it gives a title, if the person that has it be not debarred by Answered. To the first, The three libels the want of other qualities, which our laws re- are all precisely in the same words, and are quire. Thus many are nearer by blood to the used for the purpose of giving citations on the succession tban the House of Hanover ; yet it discovery of more witnesses or new documents : is called before them, and they are excluded, but the conclusion is one. To the second, The because of their want of other qualities. Hence pamphlet is referred to as a proof of the crime the saying, that the Pretender had the right of charged. To the third, The mere receiving a blood, was only saying, he was a near relation medal may not be criminal; but the pleading to the queen : but it did not import a denial of for receiving it in the manner libelled, shows å her majesty's just right to the crown ; and design to reflect on her majesty's right, espetherefore the argument for receiving the medal cially as it was objected to on account of its beapon that ground, cannot be criminal, though ing a medal of the Pretender. The argument the argument might be inconclusive.
for receiving it on that account, and because he As to the second branch of the libel, founded had the right of blood, which was good, was on the pamphlet: in the first place, the mere plainly to impugn her majesty's right, as two
rights to one crown are incompatible: and this * As to this, see vol, 1%, p.
was more than barely assertiog tbe Pretender's relation to the queen ; for the pleading his right Righteous and Lawful Sovereign of this of blood, to reinforce the motto of the medal Realm, &c. [1693.] • Reddite,' was equal to pleading for the re
It was charged against the prisoner, that, storation of the Pretender. And as this was done publicly, it differs much from the
keeping contrary to his allegiance, he, in the month of
June or July 1692, went with his accomplices or using bad books, which may be conuived at. And as to the keeping our money in France, it to the market-cross of Fraserburgh, stepped passes there as a coin in commerce.
upon the cross, and, after three + several o As to the defences respecting the pamphlet, Yes's, did three several times proclaim the late in the first place, writing is more than think ) king James, and the pretended prince of Wales, ing. It is an ouvert act, and criminal of itself
, to be righteous and lawful king of this kingby act 2, parl. 1662, and by act 10, parl. 10; cursed all who would say the contrary: then
dom, and successor to the same, and that they James 6. * 2odly, The printing the pamphlet they drank, and caused to be dravk, king was the most direct method of publication that James's good health, and that of tbe prince of could be used. And as to the pretended caution, it might be atfected; for if the pamphlet
Wales, and cursed king William and all bis
adherents; drank to his confusion; uttered rewas in fact published, the author must answer for the consequences, especially as copies went proachful speeches of him, calling bim Burgar, abroad; which are presumed to have come, that he was only prince of Orange: that, for
and Burgar-master of the Hague, and saying and must have come, from bim or his asso
the ciates. As to the meaning of the pamphlet,
greater solemnity, they fired guns and pisthat 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 some of his majesty's subjects to drink treasoncommentary now put upon it by the pannel's his rebellion against his majesty's person and
able healths: by all which the prisoner testified counsel. The laws libelled on are not obsolete, authority, and his treasonable intentions to dewhen a capital punishment is not insisted for ; pose the king, and did disown the king's uile to and they were mitigated by the act 1703.
the crown, and did all that in him lay to incite The Court found, “ The pannel's pleading, and treasons be ought to be punished with
the people to take arms: for wbich contempts at a meeting of the faculty of advocates, to receive into the collection of medals in the said death, and the forfeiture of his estate.
After a prolix argument, the court found the faculty's library, the medal libelled
for this reason, that the Pretender had the right of indictment relevant to inter the pains libelled. blood, and that the said right was good, or The following persons composed the Assize: words directly importing the same, and not by lord Forrester, Jord Bargeny, the master of · inference, and that though the receiving of the Forbess, James Oswald of Singletoun, James said medal had been objected against as injuri. Baird of Saughtonhall, Patrick Murray of ous to the queen her right to the government, Livingstone, Mr. George Scot of Giblestone, relevant to infer an arbitrary punisbment. And, William Dick of Grange, sir Alexander Gilseparatim, found, his giving in to the printer, mour of Craigmillar, James Eleis of Southand ordering him to print the paper, entitled, syde, sir Robert Milne of Binnie, Hugh Wal• The Faculty of Advocates' Loyalty, in a Let- lace of Inglistoun, Alexander Nisbet of Craigin• ter to the Queen's most Excellent Majesty, tipoie, William Biggar of Woolmet, and sir .by one of the Dean of Faculty's Council, li- William Binding of Wally foord. belled upon and read in court, a sufficient pub. lication thereof, and relevant to infer an arbi
THE PROOF. trary punishment: and repelled the haill defences proponed for the panpel.”
Thomas Pyper, weaver, saw lord Fraser
come from the house of Jobn Hay vintner, and The Diet was afterwards deserted.
go to the cross, and step upon it: be beard one Act. Sir James Stewart, T. Kennedy,
in the company cry three o Yes's, and proAlt. Sir W. Pringle, sir J. Naesmyth.
claim the late king James and the prince of Wales, and this was after some person had bid him proclaim, to whom he answered, what
sball I proclaim, my lord ?' After these proArnot, in bis Abridgement of Scots Criminal clamations, the witness heard king James's Trials, bas inserted the following, which may name mentioned, saw the people on the cross serve to illustrate the strange extravagance of bave driuk with them, and heard the sbooting the Jacobites, and the mildness with which it of pistols. Adds, that lord Fraser was on the was punisbed.
cross at the same time with the man who proCharles Lord Fraser * for High Treason, in
claimed king James. proclaiming the late King James to be John Wood saw lord Fraser and others go to
the cross, saw bis lordship on the cross, heard a * This family was raised to the peerage by servant belonging to the company cry three seCharles 1, A. D. 1633. The title became ex- veral O Yes's, and then proclaim the late king tinct by the prisoner's dying without issue; Douglass's Peerage, page 273.
+ Records of Justiciary, March 29, 1695.
James and the prince of Wales; and after the lemnly enacted and declared, “That assizes of proclamation be heard two shots of a pistol. error * are a grievance.' The witness carried wine to the company at Seven peers and eight gentlemen of distinca the cross.
tion who were summoned to be upon the jury,
were fined + a huvdred merks each, for not Henry Finlayson saw lord Fraser and others obeying the citation. The jury, of which lord on the cross drinking bealtbs; their servants Bargeny was chancellor, all in one voice found told bion it was the late king James, and prince it not proved that the prisoner either actually of Wales's health : lord Fraser and another proclaimed, or caused proclaim, the late king gentleman held drawn swords tu the depo- James, and the pretended prince of Wales ; pent's breast, and forced him to drink some but found it proved that he was present at bealths.
the proclamation. Found, by a plurality of John Hay, vintner, deposed, that lord Fraser voices, that a proclamation was made at the went out of his house to the cross, and the de- cross of Fraserburgh, of the late king James ponent went there also, and heard his lordship the indictment, viz. as being righteous and
and the prince of Wales ; ' but not in terms of drink king James's and the prince of Wales's bealth. He heard also the firing of pistols.
• lawful king of this kingdom, and lawful suc
cessor therein.'. The assize, all in one voice, Alerander Robertson heard a noise at the found it not proved, that the prisoner and his cross, opened his window, and saw and heard a accomplices cursed all those wbo would say to person cloatbed in red cry three ( Yes's, and the contrary. They found it proved, that the proclaim king James as our righteous king. prisoner drank king James's health, and that 'The deponent, at the same time, saw the pri- of the prince of Wales : but found his cursing soner on the cross, and heard the company king William, and drinking to his confusion, drinking bealths. He did not distinctly bear and uttering reproachful speeches of him and whose health, but heard the words, · Burgar, forcing people to drink treasonable healths, not
the Hague, and Orange,' come from the com- proved. They found that pistols were fired, but pany.
did not find that it was by the prisoner's order. James Hardie, servant to John Hay vintner, lar, Livingstone and Southsyde, desired it to be
The Master of Forbess, the lairds of Craigmilsaw lord Fraser, and several others, go to the marked in the record, that ibey found the procross, and the witness was employed to hold clamation proved in terms of the libel. On the some of their horses. He heard and saw a footman make three 0 Yes's, off the cross, and 16th of May the court pronounced sentence on begin a health to king James and the prince of lord Fraser, fining him in 2001. sterling.
Arnot says, in a Note, “In the reign of Geo. Wales,' and bid the ill man * take all that re'fused to pledge it.' He saw the prisoner, and for drinking the
health of king Jaines 8, and to
1, Alexander Crawfurd was fined 501. sterling, others, driak the bealth, and heard some shots his happy restoration. Rec. of Just. 2 1st Feb. of a pistol.
1715. And a Highland minister was turned James Scot saw lord Fraser, and others, at out of his meeting-house for three years, for the cross; he saw and beard them drink king not praying for king George by name, but for James's, and the prince of Wales's healths, the supreme in authority who sits upon the and heard lord Fraser curse those present whó royal throne,' and this at a time when there refused the toast. He beard four shots. was no statute for praying for the king by
name, except that which ordained the clergy to The Lord Advocate protested for an assize of pray for queen Anne, and the princess Sophia: wilful error, if the jury should acquit the pri- nor any law for it, but a proclamation of the soner. The prisoner protested in the contrary; Lords of the Regency. Rec. of Just, 11th, because the committee of estates which declared 14th, 18th, 19th, 25th July 1715.” king James to bave forfaulted the crown, and bestowed the same on William and Mary, so
* As to this, see Vol. 11, p. 75.
+ As to assizers for noblemen, see Vol. 10, * A fanatical term for the devil.
448. The Trial of RICHARD NOBLE*, Gent. for the Murder of
John Sayers, Esq. and of Mrs. MARY Saver, for Petty
Justice Parker : 12 ANNE, A. 1. 1713. On Thursday evening, March 12, Richard On Friday morning at six, the Court sat, Noble, Mary Sayer, and Mary Salisbury, were and the prisoners were set to the bar; when arraigned for the murder of John Sayer, esg. Mr. Noble moved to put off their trials, for that upon their several indictments; and pleaded | Mr. Buil, a very material evidence for them, Not Guilty; and were told by the Court, to was not come down. prepare for their trials next morning at six Court. That must be proved by the oath o'elock.
of somebody, and that he was served with a
subpoena to attend here. Upon which Mr. * This Mr. Noble was the son of Mr. Noble, Lindsey, one of the attornies concerned for the who kept a well-frequented coffee-house at prisoners (for they had many) deposed, that he Bath, and had an estate of about 60l. per ann. filled up a subpoena for serving Mr. Bull, but gave his son a liberal education, and put him did not serve it himself; that å messenger was clerk to an attorney at the Devizes, in Wilts; sent at twelve o'clock, yesterday, to London, to when Noble was out of his clerkship, he took serve it, but was not returned. Mr. Noble also chambers in New-inn, London, and there prac- alleged, That Mr. Page, the counsel, another tised as an attorney ; he was introduced by a material witness, was not come, and that he gentleman of honour, to transact Mr. and Mrs. was served with a subpæna, and they looked Sayer's affairs, (for they had various disputes) for him every hour; and called Mr. Lindsey the gentleman little thinking he would bave to prove this. made so ill an use of his recommendation : but Mr. Lindsey deposed, he served Mr. Page Mr. Noble was a gay, amorous young fellow, with a subpoena last Sunday, and that he about twenty-eight years of age, and what any thought he would have been down at the trial. woman would have liked, and he soon found The Court told Lindsey he should have taken out Mrs. Sayer's disposition, went off with her, care to have had his witnesses ready, and that and lived with her jo various lodgings in a scan- there was no affidavit made of their being dalous way. Former Edition.
material witnesses; and reprimanded Lindsey “ This evening lady Masham, Dr. Arbuthnot for his neglect, and ordered the trial to go on. and I were contriving a lie for to-morrow, that The queen's counsel, Mr. Serj. Commyns, Mr. Noble, who was hanged last Saturday, was with Mr. Nott, set forth how heinous the crimes recovered by his friends, and then seized again of the prisoners would appear to be, but what by the sheriff, and is now in a messenger's hands aggravated their crimes, was their endeavourat the Black Swan in Holborn. We are all to ing to procure witnesses to perjure themselves; send to our friends to know whether they have and called* heard any thng of it, and so we hope it will Daniel Reeves, who being sworn, proved, spread. However we shall do our endea that one James Hannon, an Irishman, (wbo vours; nothing shall be wanting on our part, and leave the rest to fortune." Swift's Journal they had not been married long, before she to Stella, March 31, 1713.
quarrelled with him, and parted beds; then by “We had no success in our story, though I intercession of friends came together
, and 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, 1713.
and wicked in the ensuing trial, yet some few + This Jobn Sayer, esq. was lord of the years after the murder of her husband, and the manor of Biddlesden, in Bucks, a gentleman of execution of ber gallant, she married again an about 1000l. per ann.
Married in 1699 Mary, eminent physician in London. Former Edition. daughter and co-beir to admiral Nevil, (whose This trial is printed from what was pubrelict married col. Salisbury) and had 3000l. to lished at that time, (1713) and though not so her fortune. Dir. Sayer, on the receipt of perfect as it would have been, if it had been 1000l. was to settle 50l. per ann. pin-money, taken in short-hand, yet it will receive consiand for every 10001. was to settle 1001. per ann. derable additions from the Case of Mr. Noble
, in trustees. She was a very agreeable, sensible by a barrister at law, and Mr. Noble's speeches, woman, bad some wit, but too much spirit; printed afterwards. Former Edition.
stands committed for this offence) on Thursday | Sayer, the deceased, to go from Mr. Sherlock's before the trial, came to him, and shewed him, house in the Mint, a brandy.shop, to one Mr. copies of the examinations taken before the Twyford's house, wherein they entered ; and coroner, of Samuel Derham, Thomas Gardner, on their being asked, what their business was ? and John Cox, three of the most material wit. refused to tell; and these deponents heard the nesses, to prove the murder. Hannon then deceased Mr. Sayer, as he went into the said gave him half-a-crown, and desired him to | Twyford's house, threaten, or say, that he procure, or hire two other men to swear with would be revenged on that villain Noble, and him, against those examinatious, and promised on his wife, and that he would kill them, or be bim two guineas for bimself; and the other killed ; and these deponents saw the deceased two men were to have what Reeves could agree go up, stairs, and come down again, leaving with them for, and that Mr. Noble would give both the constables above stairs; and on his Reeves a larger satisfaction than what he coming to the parlour-door, where Mr. Noble thought he would, or could expect,
was, drew his sword parily out, and said, Friday evening following, Hannon came to Damn you, you villain, now I have found you bim again, and gave binı another half crown, out, and instantly pulled at the dour, and broke to spend upon Derbam, Gardner, and Cox, and off the bolt that was withinside the door, and ordered him to make what agreement he could thereupon the deceased after his sword was with them, to stifle and buy off their evidence; almost wholly drawn out, stept backwards, and, and the next day, Saturday, Hannon came to in about a minute, went to go down the two Reeves again to know what progress be had steps into the parlour, and seemed to be pushed made, and invited him to dinner on Monday, down: and then some said he was in a fit, and to bring the other two men he was to bire fetch him some water; but these deponents with him; Hannon gave him a note, of his say, that they stood very near the deceased, own hand-writing, where he lived, which was yet could not see, nor could they believe, that at vumber 10, in College-street, Westminster. any other person, considering the situation of On Monday morning Hannon came to Reeves the place, and the little door being but part again, and gave him a writing in the nature of open, could see who gave the said wound: an afidavit, drawn up on stamp paper (by the And these deponents furtber say, they know prisoners he said), which be, and the two men Mr. Derham to be a poor, necessitous taylor in he pretended he had hired, were to swear the Mint, of a most infamous character, and are before a judge, and gave him nine shillings certain be was not in the house till after the more in money; whilst Hannon was thus deceased was wounded; and the sword which tampering with this witness (Reeves), he inti. James Terry, the deceased's footman, and mates it to the prosecutor's attorney, and after others there, said gave the said wound, was baving got this affidavit from Hannon, he taken up in the kitchen; and further say, that sbufiles off from dining with him, but promises before the deceased broke open the said door, to meet him in the afternoon; and carries the they saw the said Terry, with a caņe in ope affidavit to the prosecutor's attorney'; when it hand, and a brass hilted sword, undrawn, in the was settled between them, that when Hannon other hand. came again, Reeves should appear steady and “ And lastly, these deponents heard the said zealous in the affair, and a warrant should be James Terry abuse the said Mrs. Sayer, giving procured to apprehend him. Accordingly her very bad words ; he also told her, that Hannon came, and a warrant having been pro- rather than fail, he would offer his service to cured from justice Hartley, instead of the two the sheriff to hang her, and that he would soon persons Reeves was to procure to forswear see the end of her; and she answered, Sirrah! themselves, two constables appeared; and it is hard to be abused by the master and the Reeves said to Hannon, these are my two man too; and these deponents being in the friends. Hannon embraced them very civilly room when the deceased fell down, heard Mrs. When a third constable entered, Reeves seized Sayer say no other words ; but believe they Hannon's sword, and asked the other con should, if she had said any." stables, if they charged him with Hannon ? Jeremiah Barnard deposed, that he was sumthey replying, 'Yes, he was seized, and carried moned to Kingston assizes, on the jury on life directly before justice Lade in Southwark; and death; and that one Luke Jones, a waterWhere, upon his examination, he denied the man, carrying Mr. Stagg, an attorney, by fact
, and prevaricated greatly; was kept in water, on Friday the 6th of March, and telling custody that night, and next morning com- him, Jerry Barnard was summoned on the mitted to the Marshalsea for want of bail. jury; Mr. Stagg ordered him to tell Barnard, The words of the pretended affidavit were as if he was not got off the jury, Stagg could
help bim to 201. Jones asked Stagg on what "George Smith and Samuel Shipman, both account? Stagg answered, if he would bring in of the parish of St. Buttolphs, housekeepers, the gentleman who killed the man in the Mint, and Daniel Reeves, of the parish of St. George's, Not Guilty; all which Jones told this witness Southwark, maketh oath, that on or about the by Stagg's order ; Stagg farther said, they 29th day of January last, these deponents saw having 1000!. and upwards, and would spend Mr. Cox, and Mr. Hill, the constables, with it all on the jury to save his life; for it lay in leveral other persons in company with Mr. the breast of the jury only; because they had