"This question, who shall be supreme judge? cannot mean that there is no
judge at all. For where there is no judicature on earth to decide
controversies among men, God in heaven is judge. But every man is to
judge for himself, as in all other cases, so in this, whether another
hath put himself in a state of war with him, and whether, as Jeptha did,
he should appeal to the Supreme Judge."
I beg that I may not be misinterpreted, I hope it will not be said I mean
to insinuate that any circumstances at present exist to justify
insurrection. I protest against any such inference. Nothing can be
further from my thoughts, and I regret that such an extravagant mode of
construing men's words should be in fashion, as to render such a caution
on my part needful. All I say is, that the writer of this paper spoke of
insurrection conditionally, and prospectively only, and, in doing so, has
done no more than Locke, in other terms had done before him.
Gentlemen, I have but a very few more arguments to address to you, and I
am glad of it, for I assure you, you cannot be more exhausted in patience
than I am in strength.
I now, gentlemen, ask you even admitting that the _style_ and manner, in
which the opinions of the writer of this address are expressed, should
verge upon intemperance and impropriety, would you venture, merely upon
the ground of such a defect in style, to say the defendant is guilty;
when the very same opinions in substance, expressed in a different style,
would be innocent and legal, and unquestionable? Gentlemen, I have heard
it asserted, with a surprise that I cannot express, that if persons will
write in a moderate, delicate, temperate, and refined style they may
discuss questions which become exceptionable and forbidden if they are
handled in a coarse and illiberal style. Now I should have thought, that
the very reverse of this would have been the case; for by a refined and
guarded style you may insinuate and persuade--by vulgar coarseness and
intemperance you disgust and nauseate. To say that a political paper of
the very same sentiments, and principles would be innocent, written in a
calm and delicate style which would be criminal, written in an abrupt,
vehement and passionate manner, is to remove guilt from the thought and
conception and substance of a writing, and impute it to the medium only
of the thought, the mere expression. So that upon such a rule and
principle of decision, if I were to heap violent and gross abuse even on
Abershaw, or any other highwayman, who was deservedly hanged a hundred
years ago, I might actually be indicted for a libel. Such a course,
gentlemen, would be to degrade your judgments from a decision upon the
thought, and opinions (which, are alone important) of an author to a
criticism and condemnation of his words, and would be waging war with the
vocabulary and the dictionary, a degradation, to which I trust, your
reason will never submit. A difference of style in political writings is
much too refined and subtle to found a distinction upon between innocence
and crime. Difference of style is so minute, and is a subject of such
nice discrimination, that it would not only be difficult, but almost
impossible, and most unsafe for any jury to attempt by it to draw a line
between guilt and innocence; besides, what would be the effect upon the
press? If I were told, when I sat down to write upon any topic, that I
must treat it in a given style, and no other, or risk prosecution, I
should be confounded, and throw down my pen without writing at all. At
least I should either not write at all, or write in such a manner that I
might as well not have written at all, for I should most certainly never
be read. Good God! to leave a man the alternative of a particular style,
or an indictment for a libel, when he sat down to compose, would be like
placing a torpedo on his hand; for you cannot, as was most forcibly, and
beautifully said by Lord Erskine, "expect men to communicate their free
thoughts to one another under the terror of a lash hanging over their
heads;" and again, on another occasion, "under such circumstances, no man
could sit down to write a pamphlet, without an attorney at one elbow, and
a counsel at the other." Gentlemen, if you, sitting coolly and
dispassionately to give a deliberate judgment upon the manner and style
of an author's composition would find it difficult to form a certain
judgment, how great, how insuperable, must be the difficulty of the
writer himself. How is he when he sits down intent on his subject and
when vehement and ardent (as he must be, if he is in earnest, and that he
may persuade others of that, which he feels himself) and his ideas are
thronging and pressing upon him for expression--how is he to be select
and cautious and measured in his words? Would you not by subjecting the
freedom of political discussion to such a restriction run the hazard of
destroying it altogether? Upon this question of the difficulty of
distinguishing between propriety and impropriety in the style of writings
I can not abstain from reading to you a passage from a speech of Lord
Chesterfield, which was quoted by Lord Erskine, when he was at the bar,
upon a trial for libel. On that occasion, indeed, Lord Kenyon told him,
that he believed it flowed from the pen of Dr. Johnson, and _that_ Lord
Erskine took as a valuable concession; for from the frame of mind and
bias of that learned man on political subjects, he was certainly not a
friend to popular liberty, while Lord Chesterfield, I believe, acted
without deviation upon Whig principles, and was a constant advocate for
the freedom of the press. From Dr. Johnson, however, it was most
important, as it had the effect of an unwilling admission, and if Lord
Kenyon was correct in attributing the speech to Dr. Johnson, its
excellence is to be inferred from the fact, that Lord Chesterfield never
discountenanced the opinion that he was its author. The passage is
this:--
"One of the greatest blessings we enjoy, one of the greatest blessings
a people, my Lords, can enjoy, is liberty; but every good in this life
has its alloy of evil; licentiousness is the alloy of liberty; it is
an ebullition, an excrescence--it is a speck upon the eye of the
political body: but which I can never touch but with a gentle, with a
trembling hand, lest I destroy the body, lest I injure the eye upon
which it is apt to appear.
"There is such a connection between licentiousness and liberty, that
it is not easy to correct the one, without dangerously wounding the
other: it is extremely hard to distinguish the true limit between
them: like a changeable silk, we can easily see there are two
different colours, but we cannot easily discover where the one ends,
or where the other begins."
Mr. GURNEY.--You should state, in fairness and candour, that that was an
argument against licensing.
Mr. COOPER.--I know it was. The argument contends for the difficulty,
next to impossibility, of distinguishing where that which is allowable
ends, and that which is licentious begins. A licenser could not tell
where to allow, and where to object, yet a licenser, gentlemen, would
have had just the same means of judging that you possess; and if he could
not tell with distinctness and certainty what to let pass and what to
stop, how, with no greater power, and means of judgment, can you? With
what justice, then, can it be objected to me, that I have shown any want
of candour in not stating the precise question on which the argument was
delivered, when in the principle there is not a shadow of difference? My
application of the passage is therefore perfectly just.
Gentlemen, I have only one more quotation to trouble you with before I
conclude. That is the opinion of Lord Loughborough, afterwards
Chancellor of England. I do not know in what case, or on what occasion
it was delivered, but I believe in a judgment on a case of libel. "Every
man (says that judge) may publish at his discretion, his opinions
concerning forms and systems of government. _If they be weak and
absurd_, _they will be laughed at and forgotten_; _and_, _if they be_
bona fide, _they cannot be criminal_, _however erroneous_."
This is the opinion of a great judge upon political publications, sitting
under the authority of the king himself to administer the laws; and to
apply this authority to the paper before you, what reason on earth have
you to suppose, that the writer from the beginning to the end was not
bona fide in his opinions; and then, however erroneous they may be, I
say, under the sanction of Lord Loughborough himself, they are not
criminal.
Having, gentlemen, submitted these observations to you, I declare most
unfeignedly that I have uttered them with the most conscientious belief,
that they are founded in reason, justice, and truth. I have not advanced
a proposition nor uttered a sentiment as an advocate, which I am not
prepared to avow and maintain as a man. If I am wrong in my judgment,
you will correct me. You will, however, consider my reasonings, and the
passages which I have cited to you in support of them, and judge if I
have not maintained the propositions, which I have submitted to you.
No argument can be drawn from any of the observations, which I have
addressed to you for impunity to libelers and defamers of private
character. No, they are justly called assassins; for they who destroy
that without which life is worthless are as guilty as those who destroy
life itself, and let them feel the heaviest vengeance of the law. Private
persons may be attacked and have no power to defend themselves. They may
not only be unable themselves to answer published calumnies against their
character; but also unable to employ those who can. But such can never
be the case with those who administer the affairs of the nation. All the
wealth and power of the country is in their hands. They may hire a
thousand writers to support their measures, and vindicate their
characters, and they will not want volunteers; they can command the
press; and, for their protection, it is sufficient, that the press should
be opposed to the press. Private individuals cannot command the press;
and, therefore, let slanderers of private character suffer the utmost
punishment that the law can inflict.
And now, gentlemen, I ask you to give me your verdict for the defendant.
I make no attempt to move your compassion. I will not urge you to
consider that the defendant is a woman, and unable, from the tenderness
of her sex, to sustain hardship; nor call upon you to remember, that
which you cannot but know, that she has already been convicted upon one
prosecution, for which she will, without doubt, be the subject of severe
punishment. I ask it on the higher ground of justice; though, I confess,
that I hope and wish it with more anxiety, because I trust it will send
these embodied prosecutors, this Constitutional Association, as (by the
figure, I suppose, of _lucus a non lucendo_) they entitle themselves,
into that obscurity to which they properly belong, or at least if they
will obtrude further upon the impatience of the public, let them carry
with them the ill omen of a failure in their first attempt to insinuate,
either that the English Constitution is deficient in its establishment of
responsible law officers of the crown, or that those officers are
incapable of fulfilling the duties of their station. It is said, and I
hope truly, that the country is gradually recovering from the distress,
under which it has so long suffered, and that plenty and prosperity have
again begun to flow in upon us. May it be so! but we shall never derive
enjoyment from any improvement in our physical condition; unless it is
accompanied with domestic tranquillity. To be happy we must be at peace
amongst ourselves; and nothing will have the effect of allaying the heart-
burnings of political animosity and uniting us, as it were, in bands of
harmonious brotherhood, so much as a discouragement of these party
prosecutions, which, while they kindle feelings of indignation, and
hostility, and hatred in large numbers of the people, are of no general
benefit to the state. Fling back this prosecution, then, in the faces of
those who have instituted it; and, instead of sending this unfortunate
woman to a prison, send her back by your verdict of acquittal to the
children of her brother, who, deprived (in the manner you know) both of
their father and mother, are as much orphans as they would be by their
death; and who, sordid and neglected in her absence, are requiring her
care. And, what is more, you will, by your verdict of Not Guilty, give
security to the free expression of public opinion, compose our
dissensions, and protect both yourselves and posterity; since in calling
on you to acquit the defendant, I call on you to protect the freedom of
the press, and with it the freedom of the country; for unless the press
is preserved, and preserved inviolate, the political liberties of
Englishmen are lost.
Mr. Justice BEST.--It was his duty to call back the attention of the jury
to the question which they were to try. A number of observations had
been made relative to what had taken place in Virginia, but which had
nothing to do with the verdict which they were to give. One observation
had been made, in the propriety of which he perfectly agreed, which was
that they would dismiss from their minds all prejudices. The learned
counsel for the defendant seemed to think that the name of Carlile was
sufficient to create prejudices. If that were the case, he hoped the
jury would forget that the present defendant was of that name. They had
nothing now to do but to exercise their judgment upon the facts before
them. The jury were told, and truly told, that they were the judges as
to whether this was a libel or not. The statute gave the jury the power
of finding a general verdict; but they still were bound under the
sanction of their oaths to find it according to law. He should give his
opinion, and the jury were at liberty to differ with him; but he must beg
in the most distinct terms to state that the jury or the court had
nothing to do with the propriety or impropriety of these prosecutions, or
with the association by which the prosecution had been instituted. For
his own part he did not know by whom it had been instituted until he had
been requested by the defendant to ask the jurors as they went into the
box, whether or not they were members of that association. The two
questions to be decided were, first, Was this pamphlet a libel? and
secondly, Was the defendant the publisher? They must lay out of their
consideration acts of parliament passed in Virginia. The principles laid
down in the preamble of the act alluded to, might be a good principle for
America, but he was bound to tell them that it was not law in England. In
the book quoted from by the learned gentlemen, it was said "how wretched
must be the state of society in a country where the laws were uncertain;"
and that must be the case where the jury take into consideration the
propriety or impropriety of laws. In his opinion this publication was
libelous, and if the jury were not satisfied of the contrary, the safer
course would be for the jury to agree in opinion with one who must be
presumed to be acquainted with the law, and who gives that opinion upon
his oath. No man could be a more ardent admirer than he of the press, to
the freedom of which Europe was principally indebted for its happiness;
and God forbid that he should do anything which would for a moment
extinguish that liberty! The learned counsel for the defendant had said,
that the libel upon a private individual was a species of moral
assassination. It was odd that an individual could not be libeled with
impunity, and yet that society might be set by the ears. The government
were equally protected with all others against the malevolence and
virulence of the press. He would again repeat, but he would say nothing
as to what the law ought to be, but he stated what it was. What he
conceived to be the true liberty of the press was this, that any man
might, without permission, publish what he please, if he were responsible
for what he might publish. It might be asked, then is a man answerable
for every expression? To that he would answer, no; if a man's intention
were to convince the people that the government was not acting right, he
had a right to publish his opinions; and if some sparks should fly out
beyond decorum when the real apparent object was to instruct, the
expressions ought not to be visited with punishment. But men must not go
farther than instruct: they must not say that the system of government is
a system of tyranny; which meant nothing more than that the people ought
to pull down such systems. The learned counsel had alluded to Athens and
Rome, but it was well known that those States punished offences of this
description with greater severity than the laws of England inflicted.
Every man had a right to point out with firmness, but with respect, the
errors of government. Every man has a right to appeal to the
understanding, but not to the passions; and the man who wished to do so
need not be afraid to write. The distinction between fair discussion and
libel was this, that one was an appeal to the passions, and the other to
the understanding. If the jury were of opinion that this pamphlet was an
address to the people of the country, to induce them by legal and
constitutional means to procure a redress of grievances, then they would
acquit the defendant; but, if on the other hand, they should be of
opinion that the intention was to appeal to prejudices and passions (as
he thought) it was their bounden duty, whatever they might think of the
propriety or impropriety of the prosecution, to return a verdict of
guilty. He next felt it his duty to remark upon the passages in the
record, and if the learned gentleman had gone through the pamphlet, he
would have found in the next page, in which the writer said, that the
making and administration of laws was corrupt, a sufficient explanation
of what was intended by the sentence, "to talk of the British
Constitution, &c." There was in the country a constitution not like the
Spanish Constitution, created in a day; but matured by the sense of ages,
altering and adapting it to times and circumstances until it became what
was a practical and not theoretical system of liberty. The learned
counsel had made some observations upon what had fallen from Lord
Colchester in the House of Commons; such observations he thought
irregular, but he permitted them sooner than it should be said that the
defendant, to use a familiar expression, had not "fair play." He did not
want the authority of Lord Colchester with respect to these corruptions,
because he had evidence of it in a case in which he tried twenty-four
persons for such practices. But was it the meaning of the passage, that
there was corruption in the House of Commons? No, the expression was
that the laws (which were corrupt enough to bring to punishment persons
guilty of those practices) were corrupt. Was this true? If there were
anything for which this country was more distinguished than another it
was the equity of the laws, and it was for this that the laws of England
were extolled by all foreigners. The writer could not mean the borough
of Grampound, or any other borough, when he said that corruption was the
oil of the system. When the writer said he did not "at that moment speak
of insurrection," what was his meaning? Why that insurrection would not
do then, but at some future time they might, when satisfied of their
strength, take advantage of all circumstances. As far as he understood
the nature of the Manchester and Stockport Rooms they were for
instruction, and if the writer did not go farther, then indeed would the
pamphlet be harmless. "Delay some time." "Have such meetings as those
at Manchester and Stockport; be assured of your numbers, and you can
overpower the Government." There could be no doubt that these passages
were libelous. The next question was, whether the defendant had or had
not published the libel? and it was in evidence that these copies were
purchased at two different times. The jury were not to take into
consideration the former conviction; and he could assure the jury that no
greater severity would be used than was sufficient to restrain this
licentiousness, which, if not restrained, would overturn this or any
other Government. The revolution recommended by this pamphlet would not
be an ordinary change of masters, but a transfer of property.
At about four o'clock the jury retired; and, having returned at quarter
before five,
Mr. Justice BEST said, he had received a communication that they were not
likely to agree; and as they must agree at some time or other, he sent
for them in order to give them any information in his power upon such
points as they disagreed upon.
A Juror.--The Foreman was rather precipitate in writing to your Lordship;
we have not wasted much time, and we are discussing it among ourselves.
Mr. Justice BEST.--I am not in a hurry.
The Foreman said, there were four of the jurors obstinate, and he would
wish his Lordship to draw a juror.
Mr. Justice BEST.--I have not the power to do so.
A Juror.--I throw back the charge of obstinacy in the teeth of the
Foreman--he is obstinate.
Another Juryman.--My Lord there is obstinacy.
Second Juryman.--This is invidious; I am not the only one who stands out;
there are four of us.
The Foreman again expressed his opinion that they should not agree.
Mr. Justice BEST.--Gentlemen, you must see the impropriety of this public
discussion; you had better retire, and endeavour to agree among
yourselves.
The jury again retired, and at eight o'clock desired their families might
be informed that it was not likely they would return home before the
morning.
Wednesday, July 25th.
This morning the jury were still enclosed without the least chance of any
agreement. A number of persons were in waiting to hear the verdict. At
half-past nine o'clock, Mr. Justice HOLROYD appeared on the bench, and an
intimation was conveyed to his Lordship that there was no probability
that the jury would agree.
A conference took place between the counsel for the prosecution and
defence who appeared to be both willing to enter a _Noli Prosequi_ and
discharge the jury without a verdict.
A gentleman in black (said to be Mr. Longueville Clarke, one of the
Committee of the Constitutional Association, and one of the _State
Locusts_) suddenly started up, and declared that he would not consent to
such a course.
Mr. COOPER (to the man in black).--Are you the attorney for the
prosecution, sir?
Mr. LONGUEVILLE CLARKE.--No: I am a member of the Constitutional
Committee; and _I will_ have a verdict.
Mr. COOPER.--However potent, sir, your word might be in the committee-
room, it has no power in this Court.
Mr. GURNEY, as counsel for the prosecution, in the absence of Mr. MURRAY,
the attorney, would take upon himself the responsibility of consenting to
discharge the jury.
Mr. COOPER, thinking it cruelty to confine the jury any longer would
yield also to a consent for their discharge.
The jury were then sent for, and in their passage to the Court were
loudly and rapturously cheered by the bystanders. Having answered to
their names,
Mr. Justice HOLROYD addressed them.--Gentlemen of the jury, I am glad
that it is in my power to relieve you from your present unpleasant
situation. The learned counsel on both sides have consented to discharge
you without your returning a verdict.
The jury then left the Court, and were again loudly cheered in their
passage through the Hall.
Thus ended the first attempt of the Constitutional Association, or the
Bridge-street Banditti, to get a verdict; particularly important to the
country--particularly honourable to the counsel for the defendant, and
the honest Jurors who made so noble a stand for the Liberty of the
Press--and particularly disgraceful to all parties connected with the
prosecution.
LONDON:
W. & H. S. WARR, Printers, 3, Red Lion Passage, & 63, High Holborn.