R v Wilkes

JurisdictionEngland & Wales
Judgment Date07 February 1770
Date07 February 1770
CourtCourt of the King's Bench

English Reports Citation: 98 E.R. 327

IN THE COURT OF KING'S BENCH

Rex
and
John Wilkes
Esq.

See 6 Durn. 174. 4 ves. 330.

S. C. 2 Wils. 151; 4 Bro. P. C. 360; 19 How. St. Tri. 1075. Discussed, Bradlaugh v. R., 1878, 3 Q. B. D. 633. Applied, R. v. Castro, 1880, 5 Q. B. D. 502; 6 App. Cas. 236. Discussed, O'Brien v. R., 1890, 26 L. R. Ir. 464.

rex versus john wilkes, esq. Wednesday 7th February 1770. An information for a misdemeanor may be amended the day before trial by a single Judge at chambers on hearing both sides and without the consent of the defendant. [See / 6 Burn. 174. 4 Ves. 330.] l(?l?... [S. C. 2 Wils. 151 ; 4 Bro. P. C. 360; 19 How. St. Tri. 1075. Discussed, Bradlaugh v. R., 1878, 3 Q. B. D. 633. Applied, R. v. Castro, 1880, 5 Q. B. D. 502 ; 6 App. Gas. 236. Discussed, O'Brien v. R., 1890, 26 L. R. Ir. 464.] As this cause, in the several branches of it, came several times before the Court, it seemed better to reserve a general account of it till a final conclusion of the whole, than to report the particular parts of it disjointedly, in order of time as they were respectively argued and determined. la Michaelmas term 1764, the 4th year of His present Majesty King George the Third, Sir Fletcher Norton, then His Majesty's Solicitor-General, (the office of Attorney-General being then vacant,) exhibited an information against Mr. Wilkes, for having published, and caused to be printed and published a seditious and scandalous libel, (The North Britmi, No. 45). And soon after, he exhibited another information against him, (the office of Attorney-General still remaining vacant), for having printed and published, and caused to be printed and published, an obscene and impious libel, (An Essay on Woman, fec.). Mr. Wilkes having pleaded " not guilty" to both these informations, and the records being made up and sealed, and the causes * ready for trial, the counsel for the Crown thought it expedient to amend them, by striking out the word " purport," and in its place inserting the word " tenor." The proposed amendments were in all those parts of the information where the charge was that the libel printed and published by Mr. Wilkes contained matters " to the purport and effect following, to wit: " which the counsel for the Crown thought it adviseable to alter into words importing that such libel contained matters " to the tenor and effect following, to wit." [25281 Sir Fletcher Norton (then become himself Attorney-General) directed Mr. Barlow, Clerk in Court for the Crown, to apply to a Judge for such an order; apprehending it (as he afterwards publicly declared) to be a matter of course. Mr. Barlow, in pursuance of these directions, applied to Lord Mansfield, for a summons to shew cause " why such amendment should not be made." And his Lordship issued a summons in each cause, dated 18th of February 1764, for the defendant's clerk in Court, agent, attorney or solicitor, to attend him at his house in Bloomsbury-Square on Monday the 20th of February at 8 o'clock in the morning; to shew cause why the information should not be amended, by striking out the word " purport," in the several places where it is mentioned in the said information, and inserting instead thereof the word " tenor." N.B. The summons in the cause relating to the seditious libel exeepted the first place-" except in the first place." * They were tried on the 21st of Feb. 1764. 328 REX V. WILKES BURR. 2529. On notice of this summons, Mr. Philips agent and solicitor for Mr. Wilkes, and Mr. Hughes his clerk in Court and attorney for him upon the record, both attended his Lordship, at his own house, upon the said 20th of February 1764, accordingly, (being now vacation-time, and no Court sitting;) and did not object to the proposed amendment: on the contrary, Mr. Hughes, upon being asked as a fair practiser, candidly acknowledged " that it was amendable;" and Mr. Philips acquiesced in it, though he said he could not consent to it. Lord Mansfield having, in the presence of these gentlemen consulted and produced many precedents, and being fully satisfied " that the amendment might be made, and that it might be made by a single Judge at his house or chambers," told Mr. Philips " that there was no need of his consent;" and immediately made the following order-" Upon hearing the clerks in Court on both sides, I do order that the information in this cause be amended; by striking out the word purport in the several places where it is mentioned, in the said information, and by inserting instead thereof the word tenor. Dated this 20th day of February 1764." The orders in both causes were exactly alike; only that the words " except in the first place " were added in that of the information for the seditious libel. Mr. Wilkes was at this time in France; whither he had voluntarily retired some time before, and from whence he did not return till towards the election of [2529] members for the new Parliament, (into which he was afterwards chosen). The trial came on at the appointed time, and proceeded in the usual manner; Mr. Wilkes's counsel and agents making no objection thereto, nor declining to enter into his defence. Verdicts were found against him, upon both informations: after which, judgment was duly signed against him, in each cause; and write of capias were awarded and issued against him, as in ordinary cases of convictions upon informations for misdemeanours.-Upon his non-appearance, the proceedings were carried on to proclamation and exigents : and upon his not appearing on the 5th time of being exacted, he was, by the judgment of the coroners of the county of Middlesex, according to the law and custom of the realm, outlawed. On Wednesday the 20th of April 1768, (being the first day of Easter term 1768,) soon after the sitting of the Court, and before any process had issued on this outlawry, Mr. Wilkes, voluntarily made his personal appearance in it; accompanied by three or four friends, who probably meant to become his bail, in case of his being now admitted to bail. He opened with a speech, which is already in * print, and therefore needs not to be here repeated. He took notice, in it, that the record was altered, before the trial, by Lord Mansfield's order; so that he was tried upon altered facts. This he particularly complained of, as being unconstitutional and illegal; and was advised, he said, that it rendered both the verdicts absolutely void. Mr. Attorney-General (Mr. De Grey) prayed that Mr. Wilkes might stand committed ; as he had been convicted of printing and publishing one of these libels, and of publishing the other; and had now avowed himself to be the person so convicted. Mr. Serjeant Glynn, of counsel for Mr. Wilkes, opposed this. He said, he had several objections to the outlawry; and that, till last night, they had expected a fiat for a writ of error : but that, last night, Mr. Attorney-General declined granting one, because he doubted " whether it belonged to his office to grant it;" or " whether it ought not to be granted by the Lord Chief Justice." He said, Mr. Attorney-General did not refuse his fiat, from any doubt about the propriety of the application for it, or the sufficiency of the objections to the outlawry: but merely from a doubt " to whom it belonged to allow the writ of error." He said, he would propose some errors, which he hoped would [2530] satisfy the Court that a writ of error ought to be granted. They were of two sorts; first, errors in fact; 2dly, errors in law. 1st. An error in fact was, "that Mr. Wilkes was absent and out of the kingdom, at the time of the award of the writ of exigent." 2dly. Three errors in law. First, "that the sheriff has returned no proclamations." It is only said, " that he has obeyed the writ:" whereas he ought to have returned particulars; that the Court might judge of them. Secondly, it is not stated in the return of the exigent, "that Mr. Wilkes was exacted in the county of Middlesex:" * It was printed in the public papers of the next day, 21st of April 1768. 4 BURR. 2831. REX V. WILKES 329 nor is it said to be "at a County-Court." It is only said to be "at his County Court at the Three Tons in Brook-Street near Melbourne in the county of Middlesex : " which is no allegation "that Brook-Street is in the county of Middlesex." And though it is said "at my County-Court," yet he might be sheriff of two counties. He cited 2 Roll's Abr. 802, title "Utlagarie, Error Utlagarie." Thirdly, no judgment of the coroner ia here stated : but only a mere fact, " that he was outlawed by the coroner." In support of which objection, he cited 1 Brown's Entries, 361, as in point. He therefore prayed that bis Lordship would grant Mr. Wilkes an allowance of his writ of error, in order to his getting this erroneous outlawry reversed. He said, it was improper at tbis time to enter into any litigation about the validity of the convictions upon which these judgments are founded. Mr. Wilkes's present circumstances under the outlawry are more penal than the convictions themselves. Therefore it is incumbent upon him, first to get rid of the outlawry. And he prayed that Mr. Wilkes might be, in the mean time, admitted to bail. Mr. Recorder of London (Eyre) on the same side, enforced what the serjeant had urged ; and observed, that by 4, 5 W. & M. c. 18, 4, Mr. Wilkes was not compell-able to appear in person ; but might have appeared by attorney, and reversed the outlawry without bail, (unless otherwise ordered by the Court). He therefore proposed, that he should either appear by attorney, to reverse it; or give bail to prosecute a writ of error. And he cited Embury's case in this Court, in Easter and Trinity terms 1723, 9 G. 1.* Mr. Mansfield, on the same side, argued that Mr. Wilkes was. clearly intitled to be admitted to bail, under this statute. The convictions cannot at this time be proceeded upon ; as the sentence of outlawry is standing out against him. He has done all that is in his power to do...

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