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.