Gathercole's Case
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1838 |
| Date | 01 January 1838 |
| Court | Crown Court |
English Reports Citation: 168 E.R. 1140
Crown Cases
Considered, Bowman v. Secular Society, (1917) A. C. 406.
1140 gathebcole's case [237] LIBEL. York Sum. Assizes, 1838. gathercole^s case. (A person may attack Judaism, &c., or any sect of the Christian religion, except the form established by law. A general attack upon Christianity is unlawful, because Christianity is the established religion of the country A person has a right to discuss the Roman Catholic religion and its institutions, but he has no right in doing so to libel individual members. If a man puts forth a publication calculated to injure private character, he must be taken to have intended it to have that effect) [Considered, Bowman v. Secular Soctety, [1917] A. C. 406.] The defendant, the Rev. Michael Augustus Gathercole, was charged upon the following in-[238]-formation, with having published a false, malicious, and scandalous libel against a certain religious order and community, commonly called the Scorton Nunnery, &c. The Information was as follows - Michaelmas Term, in the first year of the reign of Queen Victoria. Yorkshire, to wit.-Be it remembered, that Edmund Henry Lushmgton, esquire, the coroner and attorney of our present sovereign lady the Queen, in the Court of our said lady the Queen, before the Queen, herself, who for our said lady the Queen in this behalf prosecuteth in his proper person, cometh here into the Court of our said lady the Queen, before the Queen herself, at Westminster, on Thursday, the second day of November in this same Term, and on behalf of our said lady the Queen gives the Court here to be informed and understand, that before and at the several times of the publication of the fake and scandalous libels in this and the next subsequent counts of this information hereafter set forth, there was and still is established ia a certain house in Scorton, in the county of York, a certain religious order and community, consisting of females, bound by religious and monastic vows, professing the Roman Catholic faith, commonly called the Scorton Nunnery, which said religious order and community, at the respective times hereinafter-[239]-mentioned, was composed of one J. D., then and there being the Mother Abbess of the said order and community, and of divers females, to wit, E. L , A. H , M. A., &c., then and there being the nuns of the said order and community, bound by religious employed, will take less notice of transactions of a different nature-his memory will be less strongly impressed with particulars regarding them-he will, perhaps, never recin: to them. Of course, therefore, the impression will be less lasting. It will become overlaid with new and more interesting matter till the traces of it are lost, and this efiect will be likely to happen more or less soon as the object is of less or more vabae, or of less or greater bulk ; and, as it may happen to be an article that k more or less frequently brought under the party's view ; Judges therefore hold, and most reasonably hold, that a person is not to be called upon to give an account at a, distant period after the theft. The question, however, of distance of time or recent possession, must be at all times one of fact under the circumstances, and a jury under the Judge's direction must ultimately decide. It is feared, that a want of proper caution in individuals often places them in the situation* of being charged with theft, when it is far from improbable that they are innocent. The presumption of law arising from mere possession is apt to be overstrained as against such persons , for the common prejudices of undisciplined minds is in favour of guilt, even where the law itself presumes innocence ; and the circumstances which go to satisfy the mind of the guilt or innocence of the party, are not always so fully investigated as they might be. It is likewise apt to be forgotten, that persons in the humbler classes of life, and who are for the most part those who are arraigned upon charges to which this presumption of law applies, are not in general able? to support the expense of bringing up witnesses to speak to their general character-the law provides not the means of their doing so ; and yet it must be obvious, thatin mamy conceivable cases the-presumption arising from mere possession, however recent, would not stand for a single instant against the character and circumstances of particular individuals, whose very names would alone be sufficient to rebut the strongest evidence. 2LEWIH240. GATHERCOLS'S CASE 1141 vows ; and that one R. K., a priest of the Roman Catholic Church, was then, and there the chaplain of the said religious order and community, and one W. H., a priest of the Roman Catholic Church, was then and there the chaplain extraordinary of the said order and commmnity; and the said coroner and attorney further gives the Court Lere to understand, that, at the times hereafter mentioned, a school for the education of young females professing the Roman Catholic faith was attached to tie said nunnery ; and that the abbess and the said nuns of the said order and community hare always led pious, holy, virtuous, and decorous lives, and that the slid school hath been at all times aforesaid conducted with great decorum and propriety ; And the said coroner and attorney further says, that Michael Augustus Gathercolej of Cleasby, in the said county of York, clerk, contriving and unlawfully &c. intending, as much as in him lay, to hurt &c. the good name &c of the said religious o?der and community, and of the said persons so being the abbess and nung thereof, and of the said R. K., [240] and W. H., so being the chaplains thereof, and so to bring them into great contempt &c., heretofore, to wit, on the first day of February, in the year of our Lord one thousand...
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...and 2 Barn K.B. 138 and 166; 94 E.R. 406 and 425; W. Kel. 230; 25 E.R. 584, refd to. [para. 117]. Gathercole's Case (1838), 2 Lewin 237; 168 E.R. 1140, refd to. [para. Scott's Case (1778), 5 New Newgate Calendar 284, refd to. [para. 120]. R. v. De Berenger (1814), 3 M. & S. 67; 105 E.R.......
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...R . v. Williams (1797), 26 State Tr. 653; R . v. Hetherington (1841), 4 State Tr. N.S. 563; R . v. Gathercole (1838), 2 Lew. C.C. 237, 168 E.R. 1140; R . v. Ramsay and Foote (1883), 15 Cox C.C. 231; Bowman v. Secular Society Ltd ., [1917] A.C. 406 (H.L.); R . v. Gott (1922), 16 Ct. App. R. ......
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...112; R. v. Williams (1797), 26 State Tr. 653; R. v. Hetherington (1841), 4 State Tr. N.S. 563; R. v. Gathercole (1838), 2 Lew. C.C. 237, 168 E.R. 1140; R. v. Ramsay and Foote (1883), 15 Cox C.C. 231; Bowman v. Secular Society Ltd., [1917] A.C. 406 (H.L.); R. v. Gott (1922), 16 Ct. App. R. 8......