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![handle is hein.slavery/ssactsengr0530 and id is 1 raw text is: GATHERCOLE' S CASE
(287] 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 Society, [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 Lushington, 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 false and scandalous libels in this and the
next subsequent counts of this information hereafter set forth, there was and still
is established in 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
recur 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 effect will be likely to happen more or less soon as the object is of less or
more value, or of less or greater bulk ; and, as it may happen to be an article that
is 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, that in many 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.
1140
2 IXWI 287.](ViewImageLocal?handle=hein.slavery/ssactsengr0530&div=1&collection=&method=preview&ext=.png&size=3)