Joseph Blackburn, Russia Mat Dealer,
John Davis, Painter,
John Williams, Cheesemonger,
Bryan Mills, Packer,
Michael Williams, Agent,
Frederick Bennet, Smith.
Mr. Justice BEST, at the request of the defendant, enquired if either of
the Jurors was a member of the Constitutional Association. The answer
was in the negative.
Mr. TINDALL opened the pleadings.
Mr. GURNEY appeared to conduct the prosecution, and Mr. COOPER was for
the defendant.
Mr. GURNEY.--May it please your lordship; gentlemen of the Jury; my
friend, Mr. Tindall, has told you the nature of this action, and it is
now my duty to lay this case before you. The indictment has been found
by a grand jury, upon the prosecution of the Constitutional Association;
and it charges the defendant, Mary Ann Carlile, with publishing a libel
upon the government and the constitution of this country; and, gentlemen,
after a not very limited experience in these cases, I will say, that a
more criminal and atrocious libel never met my observation. It purports
to be written by Richard Carlile; it is dated from Dorchester Gaol, and
it has been published by the defendant, the sister of that man who is now
suffering imprisonment for his own criminal conduct. It is entitled, "A
New Year's Address to the Reformers of Great Britain;" and, among other
objectionable passages not charged as libelous, it contains the
following; "As far as the barrack system will admit"--
Mr. Justice BEST.--I do not think that you are entitled to read that
passage, Mr. Gurney.
Mr. COOPER.--I think not, my lord; I was just rising to interrupt Mr.
Gurney.
Mr. GURNEY.--I have no objection, my lord, to abstain from reading the
passage to which I was about to call your attention. I shall read the
passage which is charged as libelous, and if the learned counsel for the
defendant can find throughout a single passage to qualify its malignity,
do you, gentleman, give the defendant the benefit of it. The passage is
this:--"To talk about the British Constitution, is, in my opinion, a sure
proof of dishonesty; Britain has no constitution. If we speak of the
Spanish constitution, we have something tangible; there is a substance
and meaning as well as sound. In Britain there is nothing constituted
but corruption in the system of government; our very laws are corrupt and
partial, both in themselves and in their administration; in fact,
corruption as notorious as the sun at noon-day, is an avowed part of our
system, and is denominated the necessary oil for the wheels of the
government; it is a most pernicious oil to the interests of the people."
And in another passage the following words were contained:--"Reform will
be obtained when the existing authorities have no longer the power to
withhold it, and not before. We shall gain it as early without
petitioning as with it, and I would again put forward my opinion, that
something more than a petitioning attitude is necessary. At this moment
I would not say a word about insurrection, but I would strongly recommend
union, activity, and co-operation. Be ready and steady to meet any
concurrent circumstances." Now, gentleman, these are the passages
charged as libelous, and I defy even the ingenuity of my learned friend
to show that they are not most odious libels. What! are the people of
this free and independent country to be told that they have no
constitution? It is an assertion, the malignity of which is only
equalled by its falsehood. We have a free and glorious constitution. It
has descended to us from our brave and free ancestors, and I trust that
we, too, shall have virtue and magnanimity enough to transmit it
unimpaired to our posterity. We have laws, too, equal in their
administration. We have a constitution where no lowness of birth--no
meanness of origin--operate as an obstacle to preferment; in which the
chief situations are open to competition, and for which the only
qualifications are integrity and information. Our laws are here
stigmatized as partial and corrupt. If they were not impartial, this man
would never have dared to vilify them. The very accusation proves that
the charge is false; for if it were true, this libeler must have suddenly
suffered for this assertion. It is because that they are administered in
a spirit of mercy unknown to the laws of any other country--it is because
they are administered in tenderness, that this man has had the power to
promulgate his vile and odious falsehood. He thought it meet and right,
and most becoming too, to tell the world that this was not the precise
time for insurrection. He plainly indicates, that he has no objection to
it; but he would not say a word about it at present, the time was not
come; but he tells his fellow reformers to be "ready and steady to meet
any concurrent circumstances." Gentlemen, it would be an idle and
impertinent waste of time to make any further observations upon the
pernicious tendency of this libel. But what is the defence which is to
be set up by my learned friend? Are we to be told that the prosecution
of this libel is an invasion of the liberty of the press? I will not
yield to my learned friend, nor to any man in existence, in a just regard
for the freedom of the press. But who, I would ask, is invading its
liberty? He who brings to justice the offenders, or he who under the
sacred form of liberty promulgates such language as I have just read to
you? I do not think that on this subject you can entertain a doubt. I
feel the most perfect confidence in committing this case to your good
sense. If you believe that the defendant is guilty of publishing this
libel with the intention charged, you will pronounce your verdict of
guilty. If, on the other hand, you think that the passages which I have
read to you contain nothing libelous, or that the defendant is not the
publisher, I shall sincerely rejoice in your conscientious acquittal.
_James Rignall_ deposed, that he had purchased the pamphlet in question
of the defendant, at her shop in Fleet Street, on Friday evening, the 9th
of March. There were several other copies lying about on the counter.
Cross-examined by Mr. COOPER.--Who are you?--I am an agent to the Society
for the Suppression of Vice.
But you are also employed by these constitutional people, as they call
themselves?--Only in this one instance.
Were you employed to purchase the pamphlet in question?--I purchased that
and others.
You were employed by the Constitutional Society to purchase them?--Yes, I
was.
Who sent you?--Mr. Murray.
The Attorney?--Yes.
And he directed you to purchase this pamphlet, eh?--He did not
particularize any.
Did he state his object in the purchase?--No.
What wages are you to have?--I have no wages.
Then you perform this agreeable duty gratuitously?--No, I do not say
that.
Then how are you paid?--I made a charge for my time.
Perhaps you belong to the society?--No, indeed I do not (with vehemence).
Well, I do not wonder that you should be anxious to separate yourself
from the society (a laugh amongst the auditory).
Mr. GURNEY.--I desire that no such remarks may be made.
Mr. COOPER.--What have you had for this particular job?--I have made a
charge for several other little things I did (a laugh).
Mr. GURNEY (to the spectators),--I shall certainly move his Lordship to
take notice of some particular persons that I see misconducting
themselves.
Cross-examination resumed.--What other jobs did you for the
association?--I did several jobs; that I will not deny.
How much have you had for these little jobs?--I declare upon my oath, I
cannot state particularly how much I had for these little jobs. I made a
charge. I don't recollect exactly what my charge was.
Come, come, the round sum?--I can tell you pretty nearly the round sum,
if that will satisfy you. I think it was above seven pounds and under
seven guineas. I was sent on other business beside this.
I wish to know what that other business was?--Is it necessary to answer
that question?
I think it necessary.--Then I will take the sense of the Court upon it. I
have no objection to answer that or any other question, if my Lord thinks
I ought.
Mr. Justice BEST (smiling).--It tends to nothing; but it is as well to
answer it.
Then I purchased come other different things for the association, but it
was not in consequence of any general or particular orders I received: I
went to purchase these publications which I myself thought libels; I
cannot state exactly now what they were.
Then you did that, I suppose, without any hope of reward?--I don't state
without any hope of reward; I expected to be paid for my time.
Oh, then, it was not altogether out of virtue and patriotic
feeling?--Those were two of my motives, most certainly, but not the only
ones (general laughing).
Has this been the usual way of getting your living?--It has for a year
and a half past; I have had no other feasible occupation during that
time.
I suppose you received a considerable sum in the course of this
honourable employment?--I have told you the sum total was about 7 pounds.
Mr. Justice BEST.--Do you think that material, Mr. Cooper?
Mr. COOPER.--I do think it material, to show the sort of agents that this
honourable society employs. (To witness.) And what did you do before
you suppressed vice and libels?--I got my living honourably as an officer
in his Majesty's customs.
And are you still an honourable officer, &c.?--No; I have lost my
situation.
Retired upon a pension?--No.
How old are you?--Fifty-four.
No pension, eh?--None.
Re-examined by Mr. GURNEY.--I have been in the employment of the Society
for the Suppression of Vice for a year and a half; I have been paid by
them for my services. In this instance, and in several others, I have
made some purchases for the Constitutional Association.
_Horatio Orton_ was then called. A general murmur ran through the Court,
which was crowded to excess; and all persons most deferentially gave the
witness way.
Examined by Mr. GURNEY.--I was a witness before the Grand Jury. On the
10th of March I purchased another copy of the pamphlet in question from
Mary Anne Carlile; I had it from her own hand.
Cross-examined by Mr. COOPER.--How came you to purchase this on the 10th
of March?--I was directed by Mr. Murray, the solicitor, to purchase it.
This is the gentleman? (pointing to Mr. Murray, in court)--Yes.
He is the Honorary Secretary to the Association, and the disinterested
attorney for this prosecution?--Yes, I was sent by him for the express
purpose of purchasing this pamphlet; I should not have gone if I had not
been directed by him.
What is your situation in the society?--My situation to the Association
is as clerk.
Clerk to Mr. Murray?--No; I am not in Mr. Murray's office.
In the Society's office, separate from the attorney's office?--Yes.
In what situation were you before?--I used to assist my brother in his
correspondence with country newspapers.
Not for the town papers?--No, for himself; he takes the reports of the
House of Lords' proceedings, and transmits them to the editors of the
country papers; I used to assist him in the copying, and he paid me for
my trouble.
What is your salary in your present honourable situation?--It is not
fixed.
It depends upon your exertions?--Yes.
Then you work at present by the piece?--No, I do not; the committee have
not yet come to a determination about my salary; I have not made any
demand for salary; I have not proposed any sum; I mean to swear that; not
any sum has been proposed to me; I don't say that I would work for the
Society gratuitously; if I want five or ten pounds I know where to go for
it; not of the Association; I can have it of my brother; I expect to
receive something of the Association.
In your modesty, what may be the extent of your expectations?
Mr. GURNEY submitted that this was not a proper mode of
cross-examination.
Mr. COOPER.--I think it is, and I shall persist in it until I am told by
my Lord that it is irregular.
Mr. Justice BEST.--I don't think any part of the cross-examination is
approaching to anything like regularity.
Mr. COOPER.--If your Lordship says I am not to be allowed the same
latitude which is allowed to counsel on other occasions, I shall not
persevere.
Mr. Justice BEST.--I have no objection to your taking your own course,
but I think this course of examination ought to have been stopped long
ago. I think every fair and reasonable indulgence ought to be allowed to
counsel in such a case, but if this was a mere civil case I should have
stopped you long ago.
Mr. COOPER.--Then I shall proceed in my own way, with your Lordship's
permission. (To witness.) Is this the first job you have been employed
in?--I don't recollect any other of this kind.
Are you sure you have been employed upon no other job of this kind?--I
cannot bring to my recollection whether I have not been employed on any
other. I may have been, but I am not aware of any.
Do you know a man named King?--Yes, perfectly.
Do you recollect doing a job in which he was concerned?--I don't
recollect doing a job of this kind against King. I might if I saw the
paper before me with my mark upon it. There are so many of them that I
cannot recollect any in particular.
Have you not made an affidavit in the job against King?--Yes; but that is
since this. I cannot recollect whether I have done any other jobs. I
have been in the employment of the Association about six months. I
commenced on the 8th of January. Since the 10th of March, I don't
recollect how many jobs I have been engaged in; they are so numerous I
can't recollect. The orders which Mr. Murray gave me, were to go and
purchase the Reformers' Address at the defendant's shop. I had not any
general directions to buy at this or that shop--not from Mr. Murray. I
had from other persons, general directions to make purchase of works; one
of those persons was Mr. Sharpe.
He is the Honorary Assistant Secretary?--Yes.
(All the preceding questions excited considerable sensations amongst the
audience, and produced a chorus of humourous tittering).
Mr. Justice BEST.--The effect of these questions, Mr. Cooper, you must
feel. You cannot wish, I am sure, to excite the sort of response which
comes from below the bar. You must see that it is done on purpose. You
cannot wish, I am sure, to produce that effect.
Mr. COOPER.--My Lord, I am the last man in the world to do any thing
inconsistent with the gravity and decorum of a Court of Justice. I
disclaim any such intention; and I must disdain the insinuation of Mr.
Gurney, that I have taken up this cause for the purpose of adding to the
public odium in which the honourable Association is held.
Mr. GURNEY said his learned friend, Mr. Cooper, was mistaken; he had
never insinuated anything of the kind.
Mr. Justice BEST.--I am sure no gentlemen at the bar would wish to
produce the effect which all the questions put by you have had below the
bar.
Mr. COOPER said he could not control the feelings of the auditory. He
was only anxious to do his duty to the best of his humble ability, and
nothing should deter him from discharging that duty freely and
undauntedly.
Cross-examination resumed.--What is the office of the Honorary Assistant
Secretary?--It is to do every thing at the office.
To superintend the business of the office?--I consider him as the acting
manager.
Then the Honorary Secretary has a sinecure?--What does the word honorary
mean but a sinecure?
Mr. COOPER.--"May it please your Lordship; gentlemen of the jury; I am
exceedingly sorry that some more able counsel has not to address you on
this most important and momentous occasion. I should have been unequal
to the task, under any circumstances."
Mr. GURNEY.--"Stop a minute." (The learned counsel for the prosecution
here intimated, that he had something to add to his case; but, after a
pause, he intimated to Mr. Cooper, that he might proceed.)
Mr. COOPER.--Gentlemen, under any circumstances, this would be a task,
for which, I fear, I am very ill qualified; but under those, in which I
stand to address you on this question, I feel my incapacity doubled and
trebled. I appear before you without notice, and almost wholly without
preparation. I was, indeed, applied to by the defendant, some months
ago, and negotiated with (if I may use the phrase) to undertake her
defence. But, after this, many days and even weeks passed, during which
I heard nothing of the case; and I began to suppose that the defendant
had determined to employ some other counsel, or trust herself to her own
address to the jury against this charge. At the end of a month, however,
I was again applied to; and, again, weeks having elapsed, without my
hearing any more of this prosecution, I dismissed it entirely, not only
from my mind, but from my memory; nor was it, till last night, that, that
I was once more informed that I was to be employed as the defendant's
counsel; and my brief at last put into my hands. I was then
unfortunately engaged in other important business: and the time, I have
taken to collect my own thoughts upon this question, and huddle together
a few extract's from writers of authority, I have been obliged to borrow
from sleep; and have, therefore, in a great measure counteracted myself;
for I have lost in strength, what I have gained in information, and
appear before you ill able, indeed, to do justice to this cause. But,
whilst I make this statement to excuse my own deficiency, I am bound to
acquit the defendant of any reproachable negligence of her own interests.
I understand, that the cause of her late application to me, is, that
having had, as a mere matter of grace, three weeks' notice of trial from
another society, by which she has been prosecuted, she mistook it for her
right; and expected the same notice from her present prosecutors. As she
had not received any such notice (and indeed she was not in law entitled
to it), she supposed, that either she was not to be brought to trial at
these sittings, or that the charge was abandoned; as I wish it had been,
and as it ought to have been; for I am convinced, that this prosecution
cannot be sustained by either law or reason; and that it must be from the
weakness of the counsel alone, that you, gentlemen, can be betrayed to
pronounce a verdict of Guilty against the defendant.
Gentlemen, it is my duty to clear this case of every possible prejudice
that may hang about it in your minds before I enter into the merits of my
defence. I do not know how you are affected, but I well know, that with
many persons, I should have a host of prejudices to contend against, in
the very name alone of Carlile. Many either believe, or affect to
believe, that the very sound is an omen and an execration, and that
either he cannot be sincere and honest in the opinions which he
professes, or if he be, that those opinions are incompatible with the
existence or practice of any moral or social virtue. But, whatever his
opinions may be, and whatever your sentiments upon them, I have at least
a right to ask of you not to allow any prejudice against the relation,
against the brother, to warp your judgment on the trial of the defendant:
for, what can possibly be more remote from justice, than, instead of
judging a person fairly for his own conduct, to condemn him by our
opinion of the sentiments and character of another? I hope and trust
that you have entertained no such prejudices: but if you have, I feel
assured, that you brought them no further than the threshold of the
court:--at that door they fell from you, like the burthen from the
pilgrim (in the beautiful allegory) on his reaching the cross; and you
stand there with your minds unbiassed, free and pure, to decide between
the crown and the defendant in this cause. But it is not only my duty,
gentlemen, to clear the defendant, but to extricate the counsel from
every unfavourable suspicion, lest it should, possibly, by any confusion
of the client with the advocate, operate to the disadvantage of the
defendant.
Whatever, therefore, may be thought of the pamphlet which is before you,
as a libel, or of the writer or publisher, I most solemnly affirm, that
there is no one who more warmly admires the English constitution, as it
stands in theory and ought to exist in practice, than myself, nor is
there any one who would more willingly shed his blood if it were
necessary, or even lose his life in its support. It is needless then to
say, that a more irreconcileable enemy would not be found than myself to
the man (if any such there be) who could attempt to overturn our mingled
and limited forms of government: and substitute a wild democracy in their
place. I think, indeed, that a democratic form of government, however
specious in argument, is by no means so capable of raising a state to
that eminence of civilization and prosperity, which this country has
reached; a condition, for which it is indebted to better times, while the
practice concurred with the theory of our government; but which, unless
the practice is brought back to the theory, I venture to predict, has not
much longer to continue. I, gentlemen, appear here only in the discharge
of my duty; and to redeem that pledge to defend the accused, which every
man, upon assuming this gown, gives to the public of England. I would,
however, have it distinctly understood, that it is only to guard against
prejudice to the defendant, and not from any apprehensions for myself,
that I trouble you with this explanation. For myself, I am extremely
careless, what may be thought of me for having come forward to defend
this unfortunate woman. I do not expect to escape obloquy in the present
overheated disposition of the country, How can I expect it? when even the
present Lord Erskine, whose talents and independence should have rendered
his character sacred, as soon as it was known that he was to be counsel
for Paine was overwhelmed with abuse, and threatened with the loss of his
situation, as attorney general to the Prince, if he did not decline the
defence. But he knew his duty and discharged it. And for which will he
be most honoured by posterity? By which most ennobled? for having in
spite of threats, and all the seductions of self-interest, persevered in
his duty? or for having been exalted to the peerage of England and
adorned with the national order of Scotch knighthood? But, if even my
humble situation, should not exempt me from the attacks of the malicious
and furious, I can tell them that their malignity will be disappointed.
Instead of regret and mortification it will be a source of pride and
happiness to me. Small as my chance may be of credit for the assertion,
I declare, that I propose to myself no reward so high for my exertions,
as the consciousness of having, in spite of all hopes on one side, or
fears on the other, honestly discharged my duty.
If ever in my course in the profession, I should find myself wounded
either in fortune or reputation, instead of regretting and deploring it,
I will rejoice and exult at it, and, at those hours, when in full
confidence of his companions, it is neither indecent nor unsafe in a man
to speak of his own actions, I will boast of it, I will shew it, as an
honourable scar.
Gentlemen, with these preliminary observations, I will proceed to
introduce my case to you. My learned friend, Mr. Gurney, has opened this
prosecution with all that pomp of eloquence, and solemnity of
declamation, which he possesses in so ample a manner, and which make him
so accomplished an advocate. But what has he done? All, indeed, that he
or any one else could have done: yet, nothing more than repeat those
arguments, which are trite, and worn like a turnpike, and have been
topics for counsel after counsel, through a thousand of these
prosecutions; while he has left all the great subjects of consideration
that present themselves to the mind on these questions, wholly untouched.
He has declared, indeed, but without showing you why, that the words,
charged in the indictment are an atrocious libel; in which, as it appears
to me, he has been rather premature, for a libel they are not, and cannot
be, unless your verdict should so declare them. I assert, gentlemen, I
am sure his Lordship will nod assent to me while I assert it, that you
are the only judges of the law of libel in this case; and this paper, for
which the defendant stands before you, is either a libel or not a libel,
as you may in your consciences think it, and on your oaths pronounce it.
The statute, indeed, which declares this the law, has given, or rather
left with his Lordship, the right of stating his opinion on that question
to you; but I am sure he will not think that I exceed my duty, as an
advocate, when I say, that though it is your duty to receive his opinion
with respect, and give it the most attentive consideration, yet it still
leaves you free to your own judgments, and if after weighing his opinion,
you find yours unaltered, you have not only a right, but it is your duty
to reject his opinion and to act on your own.
Gentlemen, I submit that it is within your province to take into
consideration the nature and operation of those writings, which are
called in prosecutions of this kind libels. You are sitting there to try
this charge as an offence by the common law of the land. The defendant
is accused of having committed an act in the nature of a nuisance; and
you are to judge whether that act could operate as a nuisance or not. You
are not bound, because pamphlets have been prosecuted as libels time out
of mind, or even because they have been declared libels by the verdicts
of preceding juries to tread in no other path than their steps; and to
find similar, or even the same matter, libels, if you should not think
them criminal or dangerous. If you should be convinced by argument, not
only that the pamphlet before you is not a libel, but that almost all
those political writings, which it has been the habit of certain people,
taking up the cry from their leaders, to call libels, are not merely not
dangerous but beneficial to political society; is it possible to
conceive, that you can be induced to pronounce a verdict of guilty
against the defendant! How can you come to such a conclusion; as that
there should be punishment where there has been no mischief, and where
there could have been none, and if there not only has been no mischief,
but could have been none,--nay, if even there must have been benefit, how
can you lay your hands on your hearts, and say there has been crime?
Suppose a man was indicted for a nuisance in doing that for which a
number of persons had in succession been indicted and convicted, would
that oblige a jury to find a verdict against a person at this day
indicted for the same act, if he should prove to them by evidence, which
their minds could not resist, that what had been complained of as hurtful
to public health and morals was noxious to neither, but salutary to both?
Would you, in such a case, though a thousand preceding juries had, in
their ignorance, pronounced verdicts of guilty, follow their example,
against your full knowledge and internal conscience? To illustrate by a
familiar instance, when hops were first introduced into this country they
were very generally believed to be pernicious. Several persons were I
believe prosecuted and convicted for using them; yet now they are known
not only to be not pernicious, but nutritious; they form a principal
ingredient in the daily beverage of our tables, and are even employed
largely in medicine. Let us now imagine a man prosecuted for the use of
hops or any other drugs upon the ground that they injured health, and
that upon his trial he should fill the box with men of science as
witnesses, and shew you to moral demonstration, that so far from being
injurious, they were highly salutary, would you, because other juries had
convicted in a state of ignorance, imitate their blindness, and convict
the defendant? Certainly not. Then to apply this to writings,
prosecuted as libels, though there may have been hundreds, and thousands,
nay tens of thousands of convictions upon them, yet, if you should be
convinced, that what are usually called libels (and this among them)
cannot be injurious, but so far from it, that they are innocent and even
salutary to the state, in which they are published, would you hand over
the publisher to punishment by a verdict of guilty? But I am
anticipating, I fear, my defence, and introducing too early observations,
which will better be urged in a subsequent part of my address to you. I
will, therefore, pass at once to the paper charged as a libel in the
indictment, and examine, under what circumstances it has come before you.
And in the first place, as to the publication, without which (whatever
the nature of the writing may be, there can be no crime) who are morally
the publishers of this pamphlet? Have you any evidence, whatever, that
any one of these pamphlets was in circulation, or ever would have been
circulated, but for the impertinent, obtrusive, sordid, and base part of
the ministers of the Constitutional Association? How otherwise is this
pamphlet here? Let us turn back to the evidence of the first witness. He
was the worthy servant of the Association in this and a few other recent
instances, but for the most part, within a year and a half, the servant
of the Society for the Suppression of Vice: a Society very different,
indeed, from that with which we have had to deal to-day;--not that I have
any affection even for that association: I would neither praise nor even
be suspected of approving it, but I will not be so unjust and scandalous
as to compare it with the Constitutional Association. Before this
witness was employed by that society, he was a Custom-house officer. Are
you, I asked him, now a Custom-house officer? No. How comes that? I
lost my place. How old are you? Fifty-four. Have you any pension? No.
Now, gentlemen, I beg to observe, that it is not the habit of the Custom-
house to turn away officers, who have grown grey in their service,
without a pension; unless they have richly deserved to be so discarded
and abandoned. Such, gentlemen, are the instruments employed as spies by
the acting members of this Association! This fellow is sent out with
instructions from the honorary secretary, Mr. Murray, who is the attorney
for the prosecution, to purchase, not this pamphlet alone, but any
political pamphlet, which in his judgment might be libelous. Good God!
to what a condition are we reduced, when, under the auspices of this
blessed Association, discarded tide-waiters, and broken gaugers, are made
judges of what is libelous, and leagued with an attorney, are to
determine what may, and what may not, without the terror of a
prosecution, issue from a free press. Such was the course pursued: and
can you conscientiously say, that, but for this hiring of a spy to make a
purchase of this pamphlet for the sole purpose of founding this
prosecution upon that very instance of sale, the public would ever have
heard of it? Gentlemen, it is a great happiness, and much security
arises from it, that every person who stands forward as a prosecutor
exposes his own conduct, as it is connected with the prosecution, to
scrutiny and animadversion. I have a right to assume that freedom which
is the privilege of the bar. I remember that in the case of the King and
the Dean of St. Asaph, in which the present Marshal of the King's Bench
Prison, without any apparent connection with the subject of the
prosecution, was the prosecutor, the counsel for the defendant exercised
this right, and the Marshal was successively the object of his ridicule
and indignation.
Mr. Justice BEST.--Mr. Cooper do you think it acting fairly to make this
sort of attack on a gentleman who is not present? Is this the practice
of the bar?
Mr. COOPER.--My Lord, I make no attack on the Marshal. I only state
that--
Mr. Justice BEST.--These observations being made on one who is not
anywise connected with this case, who is not present to answer for
himself, and who would not be permitted if he was, what are we to
suppose? Can any gentleman at the bar consider this as fair?
Mr. COOPER.--My Lord, I have no design to attack the Marshal either in
his absence or presence. I mentioned him but incidentally. What earthly
purpose could it answer to this case to attack him? He _was_ the
prosecutor in _that_ case, and I rather incautiously, perhaps, mentioned
who the prosecutor was, by name; when I ought only to have said the
prosecutor. If I have done him any injustice, I beg his pardon as
publicly for it, and thus, I give a remedy as wide as the wound. I say
then, gentlemen, that the prosecutor in that case, was alternately the
object of the keenest indignation, and the most jeering ridicule, and I
have a right to be equally as free, as the counsel in that case, with the
prosecutors in this: but I shall by no means follow the example. On the
contrary, I think, we are deeply indebted to the Constitutional
Association. Consider how we were circumstanced when they first arose
amongst us. There was the state, with a standing army of only a hundred
thousand men, and nothing besides, except the whole civil force of the
realm, a revenue of no more than seventy millions; and the feeble
assistance of the established law officers of the crown to prosecute
public offenders, when this Constitutional Association in the pure spirit
of chivalry, steps forward to help the weakness of Government, and
succour its distress. Now, whatever men may talk of justice, who can say
that disinterestedness has altogether abandoned the earth? Who can say
that generosity has forsaken us and flown to heaven? Let it be
considered too, that but for their active vigilance Carlile's shop would
not have been known. No productions from it had ever been the subject of
prosecution, and but for the keen scent of the Association, the rank and
huge sedition contained in the New Year's Address might have lain in its
covert undetected and undisturbed. But to drop this irony and be
serious, the law officers of the crown are fully adequate to their
duties, and Carlile's shop was as well known to the Attorney General as
St. Paul's to you. For years he has not had his eyes off it. I will
engage that every publication, that has issued from it, and this very
pamphlet among the rest, has passed through his hands, and under his
review. Yet the law officers of the crown do not appear here to
prosecute it as a libel against the state; and I entreat you to mark
this, for I have a right to urge it, as a strong negative proof, that
they do not so consider it; and how can that require your condemnation
which they (with a judgment surely very much superior to that of the
Committee of the Constitutional Association) have not thought worthy of
prosecution or notice? Yes, you are actually called upon by this
Association to deliver over to punishment the publisher of this paper,
whilst the law officers of the crown (who neglect their duty, if they do
not prosecute offences against the state) have thought it of a nature not
at all requiring their interference What can be so preposterous? So
monstrous? And in taking leave of this view of the case, let me once
more ask you who have been actually the publishers of this paper? Have
you a single iota of evidence, which ought to satisfy your minds, that,
but for the insidious conduct of the Association, and its spies, this
pamphlet would ever have been before you or the public? Is there a
shadow of proof that one copy was ever sold, except those bought by the
creatures employed by the honorary secretary (who is also the feed
attorney in this prosecution) for the sole object of entangling the
defendant in this indictment? None, whatever. None. They conspired you
see to procure and seduce (the word is neither too broad nor too long for
their conduct) the publication for the very purpose of this prosecution.
How then having thus suborned the offence of which they complain, can
they dare to stand forward as prosecutors, when they themselves are the
criminals, and ought to be the defendants.
Mr. Justice BEST.--You mean. Mr. Cooper, to offer some evidence of that,
I suppose.
Mr. COOPER.--None, my lord, but the evidence already before the court and
the jury, and the strong and necessary inference from the facts proved by
the witnesses for the prosecution themselves.
Mr. GURNEY.--There were many others lying on the counter.
Mr. COOPER.--What of that, does it follow that they must, therefore, have
been sold? In the absence of all other proof of any publication, I have
a right, I am forced to consider the Association as the only publishers.
Mr. Justice BEST.--In the evidence there is nothing like it.
Mr. COOPER.--What, gentlemen, is it a necessary conclusion, that because
the pamphlets were lying in the shop, they must have been sold to other
persons? The defendant but for their intrusion, for the sole design of
prosecution, might have sold no others. She might have changed her
intention to sell. The pamphlets might have lain like bad verses
untouched on the shop counter, till they were turned over for waste
paper, and not a soul have ever known of their contents. The
Association, therefore, by their insidious and plotted purchase for the
sole object of prosecution, have provoked the act of publication, and
they, who provoke crimes are the criminals, and ought to be the culprits;
and those, who would punish the crimes that they have provoked, are
devils, and not men; "the tempters ere the accusers." When I contemplate
such conduct--but I will not waste another word, or another moment of
your time upon this miserable Association. If I had consulted my better
judgment, I should have passed them in silence; thus much my indignation
has wrung from my contempt.
I shall now, gentlemen, proceed to the examination of the libel, or
rather that which is charged as a libel itself; and I shall begin with
the last part so charged in the indictment, instead (as my learned friend
has done) with the first; and let me beg your regard to one remarkable
fact, that at the very point of the paper, at which the motives, and
design of the writer present themselves to the reader; at that very point
this indictment stops. It has not, as you will presently see, the
candour to proceed a single syllable farther. I will now read the
passage, "Reform," it says, "will be obtained when the existing
authorities have no longer the power to withhold it, and not before, we
shall gain it as early without petitioning as with it; and I would again
put forward my opinion that something more than a petitioning attitude is
necessary." This it has been urged to you, with great emphasis, is an
excitement to insurrection; and you are called upon to draw that
inference, though the author immediately afterwards disavows, expressly
disavows any such intention. But even, if the words stood alone, I deny
that you are compelled to such a construction. Gentlemen, will any one
venture to say, that I, standing in this place, and in the very exercise
of my profession, mean any thing, but what is strictly legal, when I say
myself, that supposing reform in Parliament be necessary, something more
than mere petitioning is requisite to obtain it? But in saying this, do
I mean any thing violent or illegal? Heaven forbid; No: but I would have
societies formed, and meetings held for the purpose of discussing that
momentous subject. If reform be necessary, and the desire of a great
majority of the country, I would have that desire shown unambiguously to
the legislature, by resolutions and declarations at such meetings. Who
will deny such societies and meetings to be legal? Yet, such meetings
would be more than mere petitioning, much more: and the author means
nothing beyond this; for I say, that in the absence of all other
criteria, the only means of judging of a writer's intentions are his
words. Look then at the words which immediately follow the assertion,
that "something more than a petitioning attitude is necessary." If those
words had been included in the indictment, this prosecution must have
been at an end upon merely reading the charge, and those words,
therefore, the Association avoided, as cautiously as they would the
poison of a viper. They felt, that though the indicted words standing
alone might perhaps admit of a doubt for a moment, yet the context
completely explained them, and gave an air of perfect innocence to the
whole passage. But you shall judge for yourselves: I will read the
passage,--"Something more than a petitioning attitude is necessary. At
this moment I would not say a word about insurrection; but I would
strongly recommend union, activity, and co-operation. Be ready and
steady to meet any concurrent circumstance." Now what kind of union,
activity, and co-operation does he mean? Is it military association,
marches, and attack? No. Hear the writer's own words again:--"The Union
Rooms at Manchester and Stockport are admirable models of co-operation,
and are more calculated than any thing else to strengthen the body of
reformers." For what do the reformers assemble in these rooms? How do
they co-operate there? Is it to consult how they shall arm and organize
themselves, and seize with a violent hand the reform which they despair
of gaining by petition? Nothing like it. The writer himself still tells
you his meaning. "Here (that is at the Manchester and Stockport rooms)
children are educated, and adults instruct each other. Here there is a
continual and frequent communication between all the reformers in those
towns." This, then, and no other, is the co-operation which the author
intended, and proposes. If any man, taking the paper in his hand and
reading the whole paragraph, can say that any thing more is meant, to his
reason I should cease to appeal. I should sit down in silent despair of
making any impression on such an understanding; but you, gentlemen, I ask
you, adding the words which I have read to the broken passage, which is
insidiously separated and included in the indictment, can there be a
doubt remaining in any rational and unprejudiced mind, that the union and
co-operation called for by this Address from those who desire reform in
Parliament, is nothing more than the establishment at other places, of
rooms, on the model of those at Stockport and Manchester; where children
and adults are instructed, and information disseminated on the subject of
Parliamentary Reform. And if this is all that is meant, there is an end
of this part of the indictment; for it cannot be libelous to recommend in
a writing the people to do that, which it is perfectly legal to do.
With regard to reform itself, I cannot know, whether any of you are
advocates for it or opposed to it, nor is it requisite that I should; I
do not ask you to think or say with me, and others, that reform in
Parliament is necessary, and that nothing but reform can save the country
from ruin; all that I ask of you is to allow me and others credit for the
conscientiousness of our opinions, and charitably admit, if yours are
opposite, that though we may be mistaken in our judgments, we must not of
necessity be criminal in our intentions. I leave you and every man to
the free exercise of your thoughts, and the free enjoyment of the
conclusions to which they lead you. Let this liberality be reciprocal,
and concede the same freedom to others which you demand for yourselves. I
have always thought that a difference in religious and political matters
need not and ought not to create hostility of feeling, and sever those,
who would otherwise be friends. I myself enjoy the friendship of
several, who entertain very different opinions from mine upon those
subjects; and yet that difference has not, and never shall, on my part,
at least, disturb our friendship. In all questions in which you cannot
have mathematical demonstration, there may be fair, honest, conscientious
difference of opinion; and you cannot have geometrical proof in questions
of religion, politics, and morals. The very nature of the subjects
altogether excludes it. To expect it, as Bishop Sanderson says, would be
as absurd as to expect to see with the ear and to hear with the eye. So
various are our opinions upon these subjects, that we not only differ
from one another upon them, but at different times we find we differ from
ourselves; and, as another learned churchman, in more recent times, has
said, what could be more unjust than to quarrel with other men for
differing in opinion from him, when no two men ever differed more from
one another than he at different times differed on the very same subject
from himself. Under this state of uncertainty in human judgment, I call
upon you, and I am sure I shall not call in vain, to be slow to condemn
the opinions of others, because they are different from your own; and,
therefore, if any of you should think reform in Parliament needless, or
even dangerous, I still call upon you (though the writer of this paper
should be a reformer, and even though he is called in reproach a radical
reformer) not to condemn the defendant in this case through prejudice
against the author's opinions; but solely to enquire (be those opinions
ever so just or ever so absurd) whether he is sincere in entertaining
them; for, if he be (as I shall show you presently from the highest
authority) the law does not consider him criminal. Try him by this test,
and this test, and this alone; and then, whatever may be your verdict,
you will be free from reproach, and secure to yourselves quiet by day,
and sound slumbers by night; for you will have discharged your duty to
yourselves, to the defendant, and to the country.
With regard, gentlemen, to the other part of the alleged libel, I must
bespeak your patience; for I am afraid that I shall be drawn by my
comments upon it into considerable length. (I am afraid, gentlemen, I
weary you, and I am sorry for it. If I had had leisure, I would have
condensed my observations; but, under the circumstances I have disclosed
to you, I hope you will forgive me for occupying more of your attention
than I would otherwise have done. I really have not had time to be
short.) To return to the passage in the paper, which is first charged as
a libel: it denies the existence of any constitution in Great Britain.
Now whether there be anything malicious and criminal in this, depends
entirely upon the meaning which the author attaches to the word
constitution. I confess it is a word that gives me a very indistinct and
uncertain idea; and I believe that if any of you were now suddenly to ask
yourselves what you understood by it, you would find you were not very
ready to give yourselves an answer; and if you could even satisfactorily
answer yourselves, you would find if you were to go further and question
your neighbour, that he would give you a very different definition from
your own. In itself it means nothing more than simply a standing or
placing together; and it really seems to me rather hard and venturous to
indict a man for denying the existence of something (whatever it may be)
expressed by the most indefinite term in our whole language. But, if we
were agreed upon the ideas which should be attached to the word, let us
examine whether, allowing for a certain freedom of expression and the
earnest eagerness with which a man who is sincere in his doctrines
enforces them in his composition, a writer may not, without being exposed
to a charge of criminal intention, assert that there is no constitution
in this country. And let us take with us to this examination, that a man
is not to be too strictly tied to words, when under the impulse of warm
and keen feelings, and when the thoughts flow, as it were, at once from
the heart into the pen, he sits down to excite his countrymen to their
good, or warn them of their danger. You must not think to bind him down
with the shackles of verbal criticism, when he is too intent upon his
theme exactly to measure his expressions. Now, that the writer of this
paper is sincere in his opinions, whatever the quality of those opinions
is, it is difficult not to believe. He published his opinions, though he
exposed himself to punishment for them, and he perseveres in them while
he is suffering a heavy punishment. You can have no more convincing
proof of sincerity than this. But, what if a political writer has, in
the warmth of composition, asserted that in England we have no
constitution, who can misunderstand him? We cannot suppose he meant that
there was a dissolution of all law and government; because we know and
feel the contrary. Few would have occasion to ask him what he meant. If,
however, he were asked, he should explain by telling you, that the
constitution in theory is very much corrupted from the practice; and I
and you, and every person must admit, that the practice has strayed wide
from the theory; and, forced to admit this, I assert with a writer, who
(whatever was thought of him once, and whilst those who were the objects
of his reproach still lived) is now the pride and boast of the country,
both for the supreme elegance and the principles of his political
writings, that "wherever the practice deviates from the theory so far the
practice is vicious and corrupt." Now, saying no more than this, and
when it would have been the merest stupidity to understand him literally,
how can the writer be convicted of a design to bring the Government into
hatred and contempt, because he has expressed his meaning by saying
figuratively "there is no Constitution." But he has previously said,
that to talk about the British Constitution is, in his opinion,
dishonesty. I know he has. I did not mean to pass it, I will not,
gentlemen, shrink from any part of the passage, for I feel that it cannot
bear with any heavy pressure against me. "To talk of the British
Constitution is, in my opinion, a sure proof of dishonesty." Here it
will be seen that the only exception that can be taken to this sentence
is the mere mode of expression. If a man were to talk to me of the
Constitution of England, and, by omitting all notice of its aberrations
in practice from its theory, by which he would leave it free to me to
suspect, that he would insinuate that the theory and the practice were
the same, I should certainly say, that he was exhibiting want of candour.
I might, perhaps, think dishonesty, rather too strong a term for such
conduct; but I should not scruple to say, that he was disingenuous, and
he _would_ be guilty of a species of dishonesty; for all the
disingenuousness is to a degree dishonest; and, since the meaning is the
same, why should we quarrel at a mere difference of expression? The
author proceeds to say, "If we speak of the Spanish Constitution, we have
something tangible; there is a substance and meaning as well as sound."
So that it is clear he was saying, that we had no Constitution in
comparison with that just promulged by the Spanish nation. The Spaniards
we know have recently gained by their own glorious efforts, that
political liberty to which they had been so long strangers; and their
Legislature had just published a code of fundamental laws, few in number,
but most comprehensive in securing freedom to the people, for whom they
are framed. They are (comparatively with the laws of countries, in which
the frame of government is old, and complicated) not numerous, but the
mind may collect them almost at a glance, and possess itself of them with
a single effort of the understanding. In this view of the subject,
without doubt, the Constitution of Spain is tangible; and in this sense
he is justified in asserting that our own Constitution is not tangible;
for is it not notorious that our laws are spread through so many Acts of
Parliament of doubtful and difficult construction, and so many books of
reports, containing the common law of the land (and in which there are no
few conflicting decisions) that the whole life of a man does not suffice
to achieve a knowledge of them. So multifarious and infinite and
perplexed is our code, that even amongst those whose profession is the
law it is not possible to meet with an accomplished lawyer.
The defendant here fainted, and was taken out of court. After the
interruption which this circumstance occasioned had subsided, Mr. COOPER
proceeded--
Gentlemen, I lament in common with many others that this evil has
attended an extended degree of civilization and trade--that our laws have
become too numerous and complicated for the capacity of the mind. That
they are so, is not my opinion alone, but that of the Legislature itself.
I believe that a committee of the Houses of Parliament has been sitting
and still sits for the object of reducing our laws to some limit in their
number and some order as to their design; without which our Constitution,
to use the words of the writer, cannot be tangible; a tangible shape, at
present it does not possess, for that cannot be tangible which spreads
itself over a boundless extent, that eludes, and defies the grasp of the
human intellect.
Having disposed of thus much of this paragraph, I come to the words, on
which my learned friend, Mr. Gurney, laid such extreme stress in his
address to you. "Our very laws, are corrupt and partial both in
themselves, and in their administration. In fact corruption _as
notorious as the sun at noon-day_ is an avowed part of the system, and is
denominated the necessary oil for the wheels of Government. It is a most
pernicious oil to the interests of the people." This is strong language
I admit, and would perhaps be censurable as imprudent, at least, if the
very expressions themselves, which the writer uses, did not guide us
directly to the facts to which he alludes, and explain the passage. He
alludes most manifestly to the celebrated exclamation of a person at the
time that he was in the seat of office, the first commoner of the realm,
and who instead of being reproached for his words has retired from his
office with the honours which he has merited for his services in it. It
transpired in the House of Commons, that seats had been trafficked for as
articles of sale and purchase for money.
Mr. Justice BEST.--Is that a subject at all relating to the question
which is now before the jury?
Mr. COOPER.--My Lord, I am going to use the declaration of the Speaker,
as a matter of history, and to show, that the words charged as criminal
were an allusion to it; and if so, were not criminally used. I do not
wish, nay I would avoid the introduction of any improper or inflammatory
topics. I would not attempt to serve my client by such means. When it
was exposed, that there had been certain trafficking for seats in the
House of Commons, the Speaker used these words (and it is to them, I
would show the jury, the writer of the paper alludes), "practices are as
notorious as the sun at noon-day at which our ancestors would have
started with indignation," and that gentlemen--
Mr. Justice BEST.--Will you allow me to ask you Mr. Cooper, I want to
know where you get that from.
Mr. COOPER.--My Lord, from all the reports of the speeches in the
newspapers of the day which were never contradicted.
Mr. Justice BEST.--I beg to state, that, whatever passed in Parliament,
cannot be questioned anywhere else. Whatever the Speaker said in
Parliament, he was justified in saying. But I have no means of knowing,
nor have you, whether he ever did say so or not.
Mr. COOPER.--I am not questioning anything he said in the House of
Commons--
Mr. Justice BEST.--If Mr. Abbot had said it any where else, it would have
been a libel on the constitution; if he said it there, we cannot enquire
about it; it would be a breach of privilege.
Mr. COOPER.--Your Lordship asked me, how I came to know that he said so.
My Lord, I have seen it in all the recorded speeches of the House of
Commons in the published debates in Parliament, and--
Mr. Justice BEST.--I say there are no recorded speeches of the House of
Commons to which we can listen or attend.
Mr. COOPER.--Certainly, there are no records of speeches in the House of
Commons in the sense in which the proceedings of courts of law are
records, nor is there in that sense any recorded speech of Cicero or of
Lord Chatham; but, my lord, will your lordship say, that I am not
entitled in my address to the jury to use that which has been reported as
part of a speech of Lord Chatham or of Cicero; because there are no
records filed, as in the courts of law, of their speeches! I submit that
they are matters of history; and that, as such, I am at liberty to use
them.
Mr. Justice BEST.--I tell you, Mr. Cooper, what the distinction is. If
you publish, that, which may be said to be a speech of Lord Chatham's,
and it may be an accurate report of his speech, you may be guilty of
publishing a libel, though the place, in which that speech was delivered
gave a liberty to the speech. You know it has been so decided in my Lord
Abingdon's case, who published his own speeches.
Mr. COOPER.--That, my Lord, was a libel upon a private individual. I
say--
Mr. Justice BEST.--I say you have no knowledge of anything which is said
in the Houses of Parliament.
Mr. COOPER.--With great submission I re-urge it as a matter of history,
and as such I would use it whether the fact is ten years old or ten
thousand, I submit makes no difference.
Mr. Justice BEST.--Mr. Cooper, I have told you my opinion; if you don't
choose to submit to it, the best way will be to go on, perhaps.