"What!--shall a person appeal from that Court, who are the

only judges of things belonging to them, the House of

Commons I mean. An appeal! To whom? To a mob? Must Justice

be appealed from? To whom? To injustice? Appeal to 'the good

people of England,' 'particularly the inhabitants of

Westminster'! The House of Commons are the good people of

England, being the representatives of the people. The rest

are--what? Nothing--unless it be a mob. But the clear

meaning of this libel was an _appeal to violence_, in fact,

and to stigmatize the House." "Then he charges the House

with sinking material evidence; which in fact is accusing

the House of injustice. This is a charge the most shocking;

the most severe, and the most unjust and virulent, against

the good, the tender House of Commons; that safeguard of our

liberty, and guardian of our welfare."

"This libel ... will be found the most powerful invective

that the skill of man could invent. I will not say the

skill, but the wit, art, and false contrivance of man,

instigated by Satan;" "to say that this is not a libel, is

to say that there is no justice, equity, or right in the

world."

The Solicitor-General told the Jury that they were only to inquire _if

Mr. Owen published the pamphlet_, "_the rest follows of course_;" "you

are upon your oaths; you judge of the facts ... and _only them_."

Chief Justice Lee summed up the evidence "and delivered it as his

opinion, that the _Jury ought to find the defendant guilty;_ for he

thought the _fact of publication was fully proved; and if so they

could not avoid bringing in the defendant guilty_."

The jury returned, "Not guilty;" but Ryder, the Attorney-General, put

this question, Do you think the evidence is not sufficient to convince

you that _Owen did sell the book_? The foreman stuck to his general

verdict, "Not guilty," "Not guilty;" and several of the jurymen said,

"that is our verdict, my lord, and we abide by it." "Upon which the

court broke up, and there was a prodigious shout in the hall." Then

"the Jury judged as to facts, law, and justice of the whole, and

therefore did not answer the leading question which was so artfully

put to them."[127] Of course the insolent Attorney-General was soon

made "Lord Chief Justice," and _rode_ the bench after the antiquated

routine.

[Footnote 127: 18 St. Tr. 1203; 14 Parl. Hist. 888, 1063; 3 Hallam,

200; 2 Campbell, Justices, 198.]

This was the third great case in which the Jury had vindicated the

right of speech.

6. Here is another case very famous in its day, and of great value as

helping to establish the rights of juries, and so to protect the

natural right of the citizens--the Trial of John Miller for reprinting

Junius's Letter to the King, in 1770.

Here are the facts. Mr. Miller was the publisher of a newspaper called

the _London Evening Post_, and therein, on December 19, 1769, he

reprinted Junius's celebrated Letter to the King. For this act, an

information _ex officio_ was laid against him, wherein he was charged

with publishing a false, wicked, seditious, and malicious libel. A

suit had already been brought against Woodfall, the publisher of the

_Public Advertiser_, in which the letter originally appeared, but the

prosecution had not turned out to the satisfaction of the government,

nor had the great question been definitely settled. So this action was

brought against Mr. Miller, who reprinted the original letter the day

of its first appearance.[128]

[Footnote 128: 20 St. Tr. 803, 895, 869; Woodfall's Junius (Bohn,

1850), Preface, p. 94, Appendix, p. 471; 2 Campbell, Justices, 363; 5

Mahon.]

Solicitor-General Thurlow,--whom you have met before,

Gentlemen,--opened the case for the Crown, and said:--

"I have not of myself been able to imagine ... that there is

a serious man of the profession in the kingdom who has the

smallest doubt whether this ought to be deemed a libel or

not;" "for I neither do, nor ever will, attempt to lay

before a jury, a cause, in which I was under the necessity

of stating a single principle that went to intrench, in the

smallest degree, upon the avowed and acknowledged liberty of

the subjects of this country, even with regard to the press.

The complaint I have to lay before you is that that liberty

has been so abused, so turned to licentiousness, ... that

under the notion of arrogating liberty to one man, that is

the writer, printer, and publisher of this paper, they do

... annihilate and destroy the liberty of all men, more or

less. Undoubtedly the man that has indulged the _liberty of

robbing upon the highway_, has a very considerable portion

of it allotted to him." The defendant "has published a

paper, in which, concerning the King, concerning the House

of Commons, and concerning the great officers of State,

concerning the public affairs of the realm, there are

uttered things of such tendency and application as ought to

be punished." "When we are come to that situation, when it

shall be lawful for any men in this country to speak of the

sovereign [George III.] in terms attempting to fix upon him

such contempt, abhorrence, and hatred, there is an end of

all government whatsoever, and then liberty is indeed to

shift for itself." He quotes from the paper: "'He [the king]

has taken a decisive personal part against the subjects of

America, and those subjects know how to distinguish the

sovereign and a venal Parliament, upon one side, from the

real sentiments of the English nation upon the other.' For

God's sake is that no libel? To _talk of the king as taking

a part of an hostile sort against one branch of his

subjects_, and at the same time to _connect him ... with the

parliament which he calls a venal parliament_; is that no

libel?"

Lord Mansfield,--the bitterest enemy of the citizens' right of speech

and of the trial by jury,--charged upon the jury, "The question for

you to try ... is, whether the _defendant did print_, or publish, or

both, a _paper of the tenor_, and of the meaning, so _charged by the

information_." "If it is of the tenor and meaning set out in the

information, the next consideration is, whether he _did print and

publish it_." "If you ... find the defendant not guilty, the fact

established by that verdict is, _he did not publish a paper of that

meaning_;" "the fact finally established by your verdict, if you find

him guilty, is, that _he printed_ and published a _paper, of the

tenor_ and of the meaning set _forth in the information_;" "but you do

_not give an opinion ... whether it is or not lawful to print a paper_

... of the tenor and meaning in the information;" "if in point of fact

it is innocent, it would be an innocent thing."

Thus practically the judge left the jury only one thing to determine,

Did Mr. Miller print Junius's letter to the king? That was a fact as

notorious as it now is in Boston that the _Daily Advertiser_ supported

the fugitive slave bill, and helped its execution, for the letter to

the king was there in Mr. Miller's journal as plainly as those

defences of the fugitive slave bill were in the _Advertiser_. If the

jury said "guilty," the court had the defendant in their claws,--and

all the wrath of the most malignant tories would fall on him and rend

him in pieces. But the jury fell back on their legitimate function to

determine the Fact, the Law, and the Application of the law to the

fact, and returned a verdict, Not Guilty, which a great multitude

repeated with loud acclaim!

* * * * *

7. Next, Gentlemen, I will relate a few cases in which the government

set all justice at defiance and clove down the right of speech,

commonly packing submissive juries. In 1790 and following years, while

the French Revolution was in progress, the thoughtful eyes of England

fell on the evils of her own country. America was already a Republic,

just recovering from the shock of violent separation from her

mother,--young, poor, but not unprosperous, and full of future promise

too obvious to escape the sagacious politicians who there saw a

cause--

"----with fear of change,

Perplexing Kings."

The people of France, by a few spasmodic efforts, broke the threefold

chain of Priest, King, and Noble, and began to lift up their head. But

Saxon England is sober, and so went to work more solemnly than her

mercurial neighbor. And besides, the British people had already a

firm, broad basis of personal freedom to stand on. Much was thought,

written, and spoken about reform in England, then most desperately

needing it. The American Revolution had English admirers whom no

courts could silence. Nay, at first the French Revolution delighted

some of the ablest and best men in Britain, who therein beheld the

carrying out of the great Principles which Aristotle and Machiavelli

had laid down as the law of the historical development and social

evolution of mankind. They wished some improvement in England itself.

But of course there was a strong opposition made to all change.

Parliament refused to relieve the evils which were made obvious. The

upper House of Nobles was composed of the Elder Sons of the families

which had a social and pecuniary interest in oppressing the people,

and the lower House "consisted mainly of the Younger Sons of the same

families, or still worse the purchased dependents" of their families.

Societies were organized for Reform, such as the "London Corresponding

Society," "the Friends of the People," etc., etc. The last mentioned

contained many literary, scientific, and political men, and about

thirty members of Parliament. Great complaints were made in public at

the inequality of Representation in Parliament. Stormy debates took

place in Parliament itself--such as we have not yet heard in America,

but which wicked and abandoned men are fast bringing upon us. Pitt and

Fox were on opposite sides.

"----and such a frown

Each cast at the other, as when two black clouds,

With Heaven's artillery fraught, come rattling on

Over the Caspian, then stand front to front,

Hovering a space, till winds the signal blow

To join their dark encounter in mid air."

At that time the House of Commons was mainly filled with creatures of

a few powerful men; thus 91 commoners elected 139 members of the

commons, and 71 peers also elected 163; so 302 British members of

Parliament, besides 45 more from Scotland,--347 in all,--were returned

by 162 persons. This was called "Representation of the People." From

the party who feared to lose their power of tyranny, there went out

the decree, "Discussion on the subject of national grievances must be

suppressed, in Parliament and out of Parliament." Violent attempts

were made to suppress discussion. In short, the same efforts were made

in England which were attempted in New York and Boston in 1850 and the

two following years, till they were ended by a little sprinkling of

dust. But in Britain the public mind is harsher than ever in America,

and the weapons which broke in the hand of Old England were much more

formidable than that which here so suddenly snapped, and with such

damage to the assassinating hand.

(1.) In 1792, John Lambert and two others published an advertisement

in the London Morning Chronicle, with which they were connected as

printers or proprietors, addressed "to the friends of free inquiry and

the general good," inviting them in a peaceful, calm, and unbiased

manner to endeavor to improve the public morals in respect to law,

taxation, representation, and political administration. They were

prosecuted, on _ex officio_ information, for a "false, wicked,

scandalous, and seditious libel." The government made every effort to

secure their conviction. But it failed.[129]

[Footnote 129: 22 St. Tr. 923.]

(2.) The same year, Duffin and Lloyd, two debtors in the Fleet Prison,

one an American citizen, wrote on the door of the prison chapel "this

house to let; peaceable possession will be given by the present

tenants on or before the first day of January, 1793, being the

commencement of liberty in Great Britain. The republic of France

having rooted out despotism, their glorious example and success

against tyrants renders infamous Bastiles no longer necessary in

Europe." They also were indicted for a "wicked, infamous, and

seditious libel," and found guilty. Lloyd was put in the pillory![130]

[Footnote 130: 2 St. Tr. 1793.]

(3.) In 1793, Rev. William Frend, of the University of Cambridge,

published a harmless pamphlet entitled "Peace and Union recommended to

the associated bodies of Republicans and anti-Republicans." He was

brought to trial, represented as a "heretic, deist, infidel, and

atheist," and by sentence of the court banished from the

university.[131]

[Footnote 131: 22 St. Tr. 523.--So late as 1820, the chief justice

punished an editor with a fine of L500, for publishing an account of a

trial for high treason. See 33 St. Tr. 1564, also 22 St. Tr. 298; 2

Campbell, Justices, 363, 371 _et al._]

(4.) The same year, John Frost, Esq., "a gentleman" and attorney, when

slightly intoxicated after dinner, and provoked by others, said, "I am

for equality. I see no reason why any man should not be upon a footing

with another; it is every man's birthright." And when asked if he

would have no king, he answered, "Yes, no king; the constitution of

this country is a bad one." This took place in a random talk at a

tavern in London. He was indicted as a person of a "depraved, impious,

and disquiet mind, and of a seditious disposition, and contriving,

practising, and maliciously, turbulently, and seditiously intending

the peace and common tranquillity of our lord the king and his laws to

disturb," "to the evil example of all others in like case offending."

He was sentenced to six months in Newgate, and one hour in the

pillory! He must find sureties for good behavior for five years,

himself in L500, two others in L100 each, be imprisoned until the

sureties were found, and be struck from the list of attornies![132]

[Footnote 132: 22 St. Tr. 471.]

(5.) Rev. William Winterbotham, the same year, in two sermons, exposed

some of the evils in the constitution and administration of England,

and for that was fined L200, and sentenced to jail for four years,--a

good deal more than $300 and twelve months' imprisonment.[133]

[Footnote 133: Ibid. 823.]

(6.) The same year, Thomas Briellat, a London pump-maker, in a private

conversation said, "A reformation cannot be effected without a

revolution; we have no occasion for kings; there never will be any

good time until all kings are abolished from the face of the earth; it

is my wish that there were no kings at all." "I wish the French would

land 500,000 men to fight the government party." He was tried, found

guilty, and sentenced to a fine of L100, and sent to jail for a

year.[134]

[Footnote 134: Ib. 909.]

(7.) Richard Phillips, afterwards Sheriff of London, was sent to jail

for eighteen months for selling Paine's Rights of Man; for the same

offence two other booksellers were fined and sent to Newgate _for four

years_! A surgeon and a physician were sent to Newgate for two years

for having "_seditious libels in their possession_." Thirteen persons

were indicted at once.[135]

[Footnote 135: Ibid. 471. Wade, Brit. Hist. (1847), 582, _et seq._]

(8.) In 1793 a charge was brought against the Rev. Thomas Fyshe

Palmer, formerly a Senior Fellow of Queen's College, Cambridge, and

then a Unitarian minister at Dundee. Mr. Palmer wrote an Address which

was adopted at a meeting of the Friends of Liberty and published by

them, which, in moderate language, called on the People "to join us in

our exertions for the preservation of our perishing liberty, and the

recovery of our long lost rights." He distributed copies of this

address. He was prosecuted for "Leasing-making," for publishing a

"seditious and inflammatory writing." The (Scotch) jury found him

guilty, and the judges sentenced him to _transportation for seven

years_. The sentence was executed with rigorous harshness.[136]

[Footnote 136: 23 St. Tr. 237; Belsham's History of George III.]

(9.) The same year Thomas Muir, Esq., was brought to trial for

Leasing-making or public Libel at Edinburgh. He was a promising young

lawyer, with liberal tendencies in politics, desiring the education of

the great mass of the people and a reform in Parliament. He was a

member of various Reform societies, and sometimes spoke at their

meetings in a moderate tone recommending only legal efforts--by

discussion and petition--to remedy the public grievances. His Honor

(Mr. Curtis) who belongs to a family so notoriously "democratic" in

the beginning of this century, and so eager in its denunciations of

the Federalists of that period, knows that the law even of

England--which they so much hated--allows all that. It appeared that

Mr. Muir also lent a copy of Thomas Paine's "Rights of Man" to a

mechanic who asked the loan as a favor. For these offences he was

indicted for sedition, charged with instituting "a Society for

Reform," and with an endeavor "to represent the government of this

country as oppressive and tyrannical, and the legislative body as

venal and corrupt." It was alleged in the indictment that he

complained of the government of England as "costly," the monarchy as

"useless, cumbersome, and expensive," that he advised persons to read

Paine's Rights of Man, and circulated copies of a periodical called

"the _Patriot_," which complained of the grievances of the people. On

trial he was treated with great insolence and harshness, reprimanded,

interrupted, and insulted by the agents of the government--the court.

An association of men had offered a reward of five guineas for the

discovery of any person who circulated the writings of Thomas Paine.

Five of the fifteen jurors were members of that association,--and in

Scotland a bare majority of the jurors convicts. Mr. Muir defended

himself, and that ably. Lord Justice Clark charged his packed jury:--

"There are two things which you should attend to, which

require no proof. The first is that the British Constitution

is the _best in the world_!" "Is not every man _secure in

his life, liberty, and property? Is not happiness in the

power of every man?_ 'Does not every man sit safely under

his own vine and fig-tree' and none shall make him afraid?"

"The other circumstance ... is the state of the country

during last winter. _There was a spirit of sedition and

revolt going abroad._" "I leave it for you to judge whether

it was perfectly innocent or not in Mr. Muir ... to go about

... among _the lower classes of the people ... inducing them

to believe that a reform was absolutely necessary, to

preserve their safety and their liberty_, which, had it not

been for him, they never would have suspected to have been

in danger." "He ran a parallel between the French and

English Constitutions, and _talked of their respective

taxes_ ... and gave a preference to the French." "He has

brought many witnesses to prove his general good behavior,

and his recommending peaceable measures, and petitioning to

Parliament." "Mr. Muir might have known that _no attention

could be paid to such a rabble, what right had they to

representation_? He could have told them the _Parliament

would never listen to their petition_! How could they think

of it? A government in any country should be just like a

corporation; and in this country it is _made up of the

landed interest, which alone has a right to be

represented_."

Gentlemen, you might think this speech was made by the "Castle Garden

Committee," or at the Boston "Union Meeting" in 1850, but it comes

from the year 1793.

Of course the jury found him guilty: the judges sentenced him to

_transportation for fourteen years_! Lord Swinton quoted from the

Roman law, that the punishment for sedition was _crucifixion_, or

exposure _to be torn to pieces by wild beasts_, or transportation. "We

have chosen the _mildest of these punishments_." This sentence was

executed with great cruelty. But Mr. Pitt, then in the high places of

power, declared these punishments were dictated by a "sound

discretion."[137]

[Footnote 137: 23 St. Tr. 117; 30 Parl. Hist. 1486, for Adams' Speech

in Commons.]

For like offences several others underwent the same or similar

punishment. But these enormities were perpetrated by the government in

Scotland--where the Roman Law had early been introduced and had

accustomed the Semi-Saxons to forms of injustice foreign to the

ethnologic instinct and historic customs of the parent tribe. But

begun is half done. Emboldened by their success in punishing the

friends of Humanity in Scotland, the ministry proceeded to attempt the

same thing in England itself. Then began that British Reign of Terror,

which lasted longer than the French, and brought the liberties of the

People into such peril as they had not known since William of Orange

hurled the last of the Stuarts from his throne. Dreadful laws were

passed, atrocious almost as our own fugitive slave bill. First came

"the Traitorous correspondence Bill;" next the "Habeas Corpus

Suspension Act;" and then the "Seditious Practices Act," with the

"Treasonable Attempts Bill" by legislative exposition establishing

constructive treason! All these iniquitous measures were brought

forward in Parliament by Sir John Scott--then Attorney-General, one of

those North Britons who find the pleasantest prospect in Scotland is

the road to London. He also was vehemently active in defending the

tyranny of the Scotch judges just referred to, as indeed all judicial

insolence and legal wrong.[138] He opposed all attempts to reform the

law which punished with death a theft of five shillings. In two years

there were more prosecutions for seditious libel than in twenty

before. But Scott had his reward, and was made Lord Chancellor in

1801, and elevated to the peerage as Lord Eldon.[139]

[Footnote 138: 30 Parl. Hist. 581; 31 Parl. Hist. 520, 929, 1153, _et

al._; 32 Parl. Hist. 370.]

[Footnote 139: 7 Campbell, 119; 1 Townsend's Judges; Life of Vic.

Gibbs.]

8. Then came that series of trials for high treason which disgraced

the British nation and glutted the sanguinary vengeance of the court.

The government suborned spies to feign themselves "radicals," join the

various Reform Societies, worm themselves into the confidence of

patriotic and philanthropic or rash men, possess themselves of their

secrets, catch at their words, and then repeat in court what they were

paid for fabricating in their secret haunts. A ridiculous fable was

got up that there was a plot to assassinate the King! Many were

arrested, charged with treason--"constructive treason." On the

evidence of spies of the government, hired informers--such men,

Gentlemen of Jury, as Commissioner Loring and Marshal Freeman jointly

made use of last year to kidnap Mr. Burns--estimable men were seized

and locked up in the most loathsome dungeons of the kingdom, with

intentional malignity confined amongst the vilest of notorious

criminals. The judges wrested the law, constructing libels, seditions,

"misdemeanors," treasons--any crime which it served their purpose to

forge out of acts innocent, or only rash or indiscreet. Juries were

packed by bribed sheriffs, and purchased spies were brought in

evidence to swear away the liberty or the life of noble men. One of

the government witnesses was subsequently convicted of ten perjuries!

No man was safe who dared utter a serious word against George III. or

Mr. Pitt.

Here, Gentlemen, I shall mention two cases of great importance in

which the jury did their duty and turned the stream of ministerial and

judicial tyranny.

The Trial of Theodore Parker For the "Misdemeanor" of a Speech in Faneuil Hall against Kidnapping, before the Circuit Court of the United States, at Boston, April 3, 1855, with the Defence · 第 13 / 28 段