Blackstone the king v deon trial not put off on affidavit of the absence of  material witness when the case be suspicious and the witness be foreigner  never likely to return to England SC burr the attorneygeneral by command of  the crown have file a information against the defendant Charles Gnevieve Louis  Augustus Andrew Timothy deon de Beaumont a French gentleman who be original  secretary to the duke de nivernois when ambassador here from France and at his  recall be make plenipotentiary and charge with the affair of that court till  the arrival of the count de guerchy the Blackstone er p present ambassador  soon after which a warm dispute break out between the count and m deon note  and contrenotes be publish on both side and at length in April last m deon  publish a large quarto volume high abuse the count and charge he in direct  term with forge his deons letter of recall for which as a libel the present  information be file the subpoena be serve on the that of April and returnable  the that of may by the practice of the court the defendant can not be bring in  by any compulsory process till the that of June on which day he think proper  to appear and the information be file on the that of June and a copy then  deliver to he he can not be force to plead till the that of June when he plead  the general issue and notice of trial be at the same time give for the that of  July and now on the that June Morton move to put off the trial till the next  term on the defendant affidavit of the absence of four material witness who he  name and swear to be send abroad at the instigation of count Guercby but who  he believe will come over in next Michaelmas term Lord man field CJ be it  possible that the evidence swear to be abroad can be material in this case  remember the case of the king and Radcliffe d there can be only a single  question whether Radcliffe be or be not the person former attaint the court  tell he if he will swear the negative he shall have all possible indulgence  and they will put off his trial Blackstone have swear to the absence of a  material witness but heref use and the trial be bring on instanter let  Blackstone the counsel for the defendant consider whether the fact lie in the  information can admit of any justification if not the whole result to the  single question of publication which be a fact whole within the defendant  knowledge however take a rule to show cause on Wednesday the that of July on  that day m deon swear a supplemental affidavit that on conference with his  counsel they have assure he that the fact which his witness be to prove will  be material on his defence and therefore he swear to his belief and that the  gentleman have be send out of England at the instance of count guerchy on  account of their friendship with deon and since they have be in France be  enjoin not to open their lip about this affair the attorneygeneral  solicitorgeneral and Wallace show for cause that the new affidavit be a fresh  libel on the count de guerchy that in December last deon set up a press in his  own house have print off the libel entitle memoir et negotiation c by the end  of march and publish it the beginning of April if therefore the witness be  send off by count Guercby to stifle their evidence as be insinuate though not  positive swear to it must be since the publication whereas in fact they  leftEngland in November last about their own affair and we have the affidavit  of the cou nts secretary that they be not send away by the count they be now  in the king of France aiual militar service be it probable he will send they  over in next Michaelmas term mere to give their evidence in behalf of deon can  they who leave England in November be material evidence in respect to the  publish f a libel in the April follow if they can be suppose to prove any  thing it must only be the truth of some of the fact allege which the defendant  may weak suppose to be a justification but that can be give in evidence e it  be not swear that the witness be likely to return or that he have use any  endeavour to bring they over though he have know of this prosecution ever  since the middle of April trial may be put off ad Groecas kalendas if such  lose affidavit be admit and per de grey solicitorgeneral the only question be  whether the defendant Blackstone do print and publish in radcliffe case in  order to obtain a like favour from the court the court require he to say he be  not the person why will not m D`Eon now say he do not print and publish Morton  and Ashhurst in support of the rule observe that if the defendant be now  convict he cannqt be bring to judgement till Michaelmas term that the  indulgence ask for will make only eight day difference in that respect that m  deon be entitle to the same justice and indulgence as every subject of this  kingdom he be in the usual course of the court which on a general affidavit of  the absence of any material witness will always put off the trial for once at  least if the application be repeat without disclose some special circumstance  it be then indeed look upon as a artifice to evade any trial but if as be  suggest the king of France will not suffer his subject to come over to give  evidence on behalf of deon the justice of England ought to put off the trial  indefinite even ad Greacas Blackstone er p kalendas in the king and Belinda  William where a information ex duty be file against her for a cheat in pretend  to be a officer widow to who it be allege she be never marry she swear to the  absence of a material witness in Scotland who refuse to come and be out of the  reach of any process from this court the court put off the trial and say  unless the prosecutor will consent to let a Commission go into Scotland to  examine the absent witness they will put off the trial from time to time f to  avoid the imputation of collusion the defendant have swear in the common form  that he do not send the witness away and that guerchy do if guerchy do not why  do he not swear it himself do he think himself too great a man he appear here  in no other light than that of a subject of England prosecute for misdemeanour  and appeal to the justice of the country long before November book be publish  in respect to this dispute I will not say by who for till the course of the  court be avow alter I will not on such a motion disclose the merit of my  client defence Guercby may send the man abroad to prevent they from give  evidence against the fact which be allege against deon by his Blackstone  antagonist deon never think nor be tell that the truth of the fact allege in a  libel may be give in evidence he be tell and have swear it that if the  gentleman can give the evidence he say they will it will be very material  perhaps not in justification but in extenuation but in what manner material  the court will not expect we to disclose No delay be imputable to deon be  appear in time and be not contumacious be he to outrun the zeal of the  prosecutor and appear before the law command he or else not be entitle to  common indulgence I do not expect to have hear Mr adcliffes case apply to the  present case that be a instantaneous proceed in the nature of a inquest of  office and therefore say Mr justice foster can not be put off unless upon good  cause whoever read that case attentive will observe that Mr justice foster  himself seem in some of his day to have wish that the trial have be then put  off g Yates I in my juvenile day I use to think that be a bare case I have  live to see reason why I think it a right determination it be a matter entire  in his own knowledge Lord Mansfield CJ I do it believe Mr justice foster have  any doubt about the propriety of bring on the trial one thing he have mistake  and therefore doubt about he think the court have refuse to let the prisoner  plead the Act of indemnity after he have plead in chief but I set he right in  that particular before he publish and I believe be correct it the Act of  indemnity except all who have break prison which we be prepare to show Mr  Radcliffe have do notice of which his counsel do not insist on their plea  Morton I hope that case shall never be apply as a precedent to make a  defendant disclose and anticipate his defence in order to obtain a common  favour what our defence Blackstone be I will not for the sake of precedent  disclose but if nothing shall be leave to a jury in the case of libel but the  mere publication I be sure that much time have be late misspend before  your Lordship allude to wilkes case h for publish the north Briton No in which  the tendency and nature of the libel be ample discuss at the trial Lord  Mansfield CJ information ex duty be personal the king prosecutiODs No man be  there to be consider in the light of a promoter or private prosecutor No crime  be so great no proceed so instantaneous but that upon sufficient ground the  trial may be put off Mr radcliffe case do not proceed upon the instantaneous  nature of the trial if the usual form of the affidavit be observe and there be  no special ground of suspicion the rule go of course but if there be such  ground it be refuse unless the party will go into far and minute circumstance  I or if it appear that there be a affect delay the rule be also then refuse  three thing be necessary to put off a trial I that the witness be real  material king and appear to the court so to be I have often know it refuse  unless the party will say to what point he mean to examine he that the party  who apply have be guilty of no neglect that the witness can he have at the  time to which the trial be defer Mr Radclffes case be now out of the question  for it appear most clear now that they can be material evidence they go abroad  in November and therefore can be material evidence to the publication in march  in England as to any circumstance of alleviation if proper to be Blackstone er  p consider before the judgement he may lie they before the court by affidavit  m the defendant insinuate that they be send abroad by count guerchy to prevent  their give of testimony but that be impossible from the difference of date and  time hw swear also that they have order not to open Blackstone their lip about  the affair between he and Guereby that also be impossible the affair must mean  this prosecution or mean nothing to the present purpose which be commence long  after they be send or go abroad the defendant have notice of this prosecution  on the that of Apffl it appear in the state trial passim that notice be hold  to be give by the warrant of commitment in all that time no endeavour have be  make to bring these gentleman over they be all subject of France the  presumption therefore be unless you show a special ground to the contrary that  they will not come back to England the presumption be otherwise in British  subject that they will return to their own dative soil and domicil two be in  the army and can come without special permission in steel case indict for  perjury there be a full affidavit that one matthews at Guadaloupe be a  material witness the court refuse to put off the trial and when it come on it  be manifest that matthews can not have be at all a witness to any thing in the  king and lockup the court will not put off the trial till the defendant show a  special ground for believe that his witness will come over and come into term  of stop all action in the CommoDPleas in the case of Belinda William the sole  question be whether marry or not marry all the witness be in Scotland by  consent as this be a civil fact it go down to be try by commission as if in a  civil action Wilmot I the rule be the same in criminal and civil case and  whether the information be grant by the court or file by the attorneygeneral  in common c I ases it have be sufficient to swear general to the absence of  material witness though I have always think the rule too lose but even in a  common action if the witness be foreigner Blackstone the general affidavit  will not be sufficient the presumption be that native of great Britain will  return to it and that foreigner will not as to the insinuation that m Guercby  send the man abroad to take off their evidence be the fact well prove I shall  think it a reason to put off the trial for ever but it be not prove nor be  even a belief of it swear to they go abroad before the book begin to be print  impossible therefore that the insinuation shall be true where there be  apparent rei against even a positive oath that the absent witness be material  the court will not put off the trial especial as no pain have be take no  endeavour use to bring they over Yates I whatever indulgence the law give to  defendant ineivil case it ought a strong to give in criminal in both the view  be to obtain justice whether the trial be accelerate or retard the view be the  same two rule be necessary to be observe I the evidence must be material that  it may be attainable the court will not drive the defendant to disclose what  the evidence is but though be swear the man a material witness that oath be  not conclusive if the other side can show it impossible as if the witness be  the husband or wife of the party or have be abroad seven year and the cause of  action arise last year this will counterbalance his oath but in the present  case there be no occasion to consider the materiality because the presumption  be that the evidence can be obtain and the defendant have show no endeavour to  bring the witness over rule discharge absent Dennison I N B on the that of  July the defendant be try and after prove thenukeof Nivernoiss character and  recall m deons station character and recall and the count de Guerebys present  character as ambassador that deon set up a press in his own house print  publish and sell the book and upon read to the jury the most exceptionable  passage Blackstone he be convict on the information no counsel appear in his  defence Mr attorney and solicitorgeneral Blackstone Clayton and Wallace of  counsel for the crown after which Lord Mansfield observe to m Mecbel the  Prussian and other foreign ambassador then attend the court that the law of  England pay as bigh a regard to the function of ambassador and will equal  protect they from all laurustinus sults as well on their reputation as their  person or property as the law of any other country m deon on be deny a long  day think proper to make no defence otherwise it be expect be may have  challenge the array for want of juror de inedietate linguae but it be conceive  such challenge will have be too late unless he have pray Blackstone er p such  jury by a suggestion on the record that he be a foreigner at the time of award  the venire for this see Staundfords PC c dyer   Litt b cro Elizabeth keb n d  ante e r v baker bull n p hawk PC c S Bac Abr libel a p ace f SC cite by Lord  Mansfield in Mostyn v Fabrigas I Cowp S p surly v Newnham Doug so where on a  information the defendant apply to put off the trial the court refuse to grant  the application unless he will consent to the examination of a witness for the  crown upon interrogatory and in that case it be hold that deposition so take  may be read in a criminal case r v morphew m S the court of c p in one case  refuse by put off the trial or other indirect mean to compel a plaintiff to  consent to a commission for the examination of witness in Scotland Calliand v  Vaughan Bos p see also Alt gentleman v Laragoily price g Fost Cr law ante SC  Lord Kenyon observe upon that case say how far that case be relish at the time  the public opinion of it have since show it have never since be consider as a  precedent or at all act under in Duberly v gunning peak n PC h burr how saint  Tr I so where writ of mandamus issue under a particular statute to examine  witness abroad the court will not postpone the trial till the return of the  writ unless the defendant lie before the court such special ground by  affidavit as may induce they to think that the witness seek to be examine be  material to his defence r v Jones east where Lord Ellenborough approve of the  rule lie down in the text d it also there appear that the common form of the  affidavit be to mention the person on who account the trial be seek to be put  off by name and that the defendant or prisoner be advice and believe that  their evidence will be material to he upon the trial as to put off the trial  in civil case see Lord v cook ante king in r v Jones east the defendant swear  that he be advice and believe that their evidence will be material for he upon  the trial but Lord Ellenborough intimate that the affidavit be not sufficient  full omit as it do to show in what respect the evidence of the witness be  material S p day v Samson barn Corbin v Dawson Tidds bring ed sander v Pitman  Bos p ace m see r v Burdett b a n see also hale h PC c p hawk PC c S Bac Abr  ury e Bla command Mim term geo III king b