Almost four months after his trial for political libel and guilty verdict at Nottingham Assizes, Charles Sutton and his legal team had applied to have the verdict set aside. The hearing was held on Tuesday 7th November 1815 at the Court of King's Bench in London.
The Nottingham Review of 10th November 1815 carried a lengthy account of the hearing, which is below:
COURT OF KING'S BENCH,
Tuesday, Nov. 7.
THE KING v. SUTTON,
Mr. Denman moved to set aside the verdict given against the Defendant, who was tried in Nottingham for a Libel, the last Lammas Assizes. The grounds on which he made this motion were first, that improper evidence had been received; second, that the learned Judge had misdirected the Jury in point of law. It had been found necessary, on the part of the prosecution, to introduce into the information a variety of averments of facts regarding the riots that took place in Nottingham and in its neighbourhood, headed, or supposed to be headed, by a person of the name of Ludd. One of the averments was, that divers of the persons engaged in the perpetration of these offences, &c. were reputed to act under the direction and orders of some supposed and unknown person, called General Ludd, and that the rioters were generally called and known by that name of Luddites. In order to make intelligible the innuendos charged in the libel, it was necessary these allegations should be proved, and for that purpose, after evidence of the publication, the Counsel for the prosecution put in the Proclamation of the Prince Regent, of December 18, 1811, which stated "that it had been represented to his Royal Highness, that such acts of outrage had been committed." The Counsel for the defendant objected to this piece of evidence, contending, that even supposing it had distinctly and positively asserted the fact, the Proclamation could then only be considered as a certificate, which, in the case in Wills, 556, had been rejected as inadmissible. Mr. Baron Graham, however, over-ruled the objection at the trial.
Mr. Justice LeBlanc.—From your statement of the averment, it seems that certain persons called Luddites were reputed to act under the control of a supposed person called General Ludd. Does that appear in the Proclamation?
Mr. Denman.—I am not certain of that,
Lord Ellenborough.—If it had, that might have been evidence of the supposed person, because the Prince Regent recites such a supposition.
Mr. Denman could state most distinctly, that the Proclamation was adduced as evidence, not of the supposition, but the acts of outrage stated in the information. He conceived also, that the next head of evidence had been improperly admitted by the learned Judge. It consisted of the preambles of two Acts of Parliament, 52 Geo. III. c.16 and 17, the first of which, without mentioning the name of Ludd, recited, merely, that the provisions of former acts had been found insufficient to prevent the outrages, and that they had been carried to an alarming extent: and the second, that a number of disorderly persons had assembled together, and had had recourse to measures of force and violence, whereby the property of his Majesty's subjects, &c. was injured. The defendant’s Counsel at the trial had also resisted the admission of this evidence, on the ground that the recital of a fact in the preamble of a statute was not evidence to go to jury, and that even supposing the act had contained an assertion, that the house of an individual named had been feloniously destroyed, so as to enable the owner to bring an action against the Hundred, yet that the preamble of the statute could not be sufficient evidence to support such action. All the facts that were to influence the Jury in their verdict, ought to be proved by witnesses upon oath.
The Court observed, that these were public Acts of Parliament.
Mr. Denman admitted, that upon all great state questions of peace or war, the recital of the legislature was to be taken as the best evidence, but there was, he conceived, a material distinction between those and the present. In order to put this in a clearer point of view, he had extracted the preambles of two acts, the first of which was the 7th Anne, c.12 reciting that most that "whereas several turbulent and disorderly persons have, in a most outrageous manner, insulted the person of the Ambassador of the Emperor of Russia, &c., by arresting him, and taking him by violence out of his coach, in the public street," &c. He submitted, that if it were necessary, in any proceeding, to prove that arrest, it would not be enough merely to produce the statue. The second was the 9th Anne, c.16. reciting that, "whereas Anthony de Gulscard, &c. was charged with holding a traitorous correspondence with France, &c. and being under examination before the Privy Council for the same, perceiving his said treason to have been fully detected, being fully conscious of his guilt, and dreading the pain and infamy of his approaching punishment, &c. did with a pen-knife in a barbarous and felonious manner, stab the Right Honorable Robert Harley, Esq. &c. and endeavoured to wound others of her Majesty's Privy Council, &c." If the Marquis de Gulscard, had survived the momentary indignation excited by that attempt, and had been incited for murder, Mr. D. apprehended that the Act could not be employed as proof of the murder. For the same reasons in the present case, the preambles of the 58d Geo. III. c.16 and 17, could not be admissible evidence of the averments in the information. The distinction, he submitted, was this, that Acts of Parliament were evidence of all great acts of State, such as the making of peace, declaring war, treaties, &c. of which all persons are bound to take notice.
Mr Justice Baillie.—As you state it, the Acts of Parliament would not establish all the allegations, and the residue was made out by the proclamation.
Mr. Denman continued, that some parole evidence had been adduced in addition, but so defective, that he had contended that the prosecutors had made out no case to go to the jury. The learned Judge, however, was of a different opinion and it was then argued by the counsel for the defendant that the averments were not sufficiently established. The second ground on which Mr. D. now supported his motion to set aside the verdict was, the misdirection of Mr. Baron Graham in point of law, who, in his charge to the jury, had supported the assertion of the counsel for the prosecution, that to supply any defects in evidence the jury might retort resort to their own personal knowledge.
Lord Ellenborough—I apprehended that the rule now is, that if any one of the Jury is to supply a defect by his own knowledge, he must be regularly sworn, and examined as a witness.
Mr. Denman, in support of his Lordship’s opinion, read the following passage from Blackst. Com. III. 375, "But this doctrine was gradually exploded when attaints began to be disused, and new trials introduced in their stead. And therefore the practice seems to have been first introduced, which now universally obtains, that of a Juror knows any thing of the matter in issue, he may be sworn as a witness, and give his evidence publicly to Court."
Lord Ellenborough wished to hear the precise terms of the Learned Judge’s direction; and Mr. Denman read them from his own note taken at the time, stating that the Jury was at liberty to resort to their own personal knowledge, if they had ever seen any acts of outrage committed.
The rule to shew cause was granted, and the Attorney-General consented, that the defendant (whose presence on such applications is required in Court) should continue at large under his former recognizance.Sutton's case would not be heard until the new year.