The speeches delivered at Dublin in the summer of 1813 by
O’Connell as counsel for John Magee, then on trial for libel, have
received the _exequatur_ of Mr. Lecky, who considers them as the
“Liberator’s” greatest efforts at the Bar. Magee was the proprietor
of the _Evening Post_ newspaper, in which, on the occasion of the
Duke of Richmond’s departure from Ireland, there had appeared
comments on his conduct as Lord Lieutenant in which the Government,
probably with some eagerness, had discovered a libellous tendency.
For the _Evening Post_ was notably pro-Catholic; what was more, its
circulation and influence were large; and the Government from its
own standpoint had good reasons either to repress the sheet or to
change its political complexion. Hence the somewhat tenuous charge
of libel laid against Magee.
The specimen here presented of O’Connell’s eloquence was, after the
trial, piously published by Magee, and later included in that badly
printed volume, “Select Speeches of O’Connell,” edited by his son,
and published by J. Duffy, Dublin, 1865. With some difficulty a
probable text has been constructed out of the impressions of worn
types and obvious misprints then given to the world.
The speech itself will be found to be characteristic of O’Connell.
The bitter fountains of invective, the _sæva indignatio_ of a
just cause, keen and subtle irony, great facility of phrase and
ornament, denunciation, defiance, and then a sudden modulation
into an almost fawning fairness of tone--all are here. It is a
plea not over-logical in arrangement; often desultory in the
show passages; and, from the nature of the case, often legal in
reference. But shorn, not only from considerations of space, of
certain eccentricities and excursions, it is hoped that it will
leave a definite picture of a great rhetorical orator, and of the
two jewels of his style,--virile emphasis and impassioned intensity.
I consented to the adjournment yesterday, gentlemen of the jury, from
that impulse of nature which compels us to postpone pain; it is,
indeed, painful to me to address you; it is a cheerless, a hopeless
task to address you--a task which would require all the animation and
interest to be derived from the working of a mind fully fraught with
the resentment and disgust created in mine yesterday, by that farrago
of helpless absurdity with which Mr. Attorney-General regaled you.[1]
But I am now not sorry for the delay. Whatever I may have lost in
vivacity, I trust I shall compensate for in discretion. That which
yesterday excited my anger, now appears to me to be an object of
pity; and that which then roused my indignation, now only moves to
_contempt_. I can now address you with feelings softened, and, I
trust, subdued; and I do, from my soul, declare, that I now cherish
no other sensations than those which enable me to bestow on the
Attorney-General, and on his discourse, pure and unmixed compassion.
It was a discourse in which you could not discover either order, or
method, or eloquence; it contained very little logic, and no poetry at
all; violent and virulent, it was a confused and disjointed tissue of
bigotry, amalgamated with congenial vulgarity. He accused my client
of using Billingsgate, and he accused him of it in language suited
exclusively for that meridian. He descended even to the calling of
names: he called this young gentleman a “malefactor,” a “Jacobin,”
and a “ruffian,” gentlemen of the jury; he called him “abominable,”
and “seditious,” and “revolutionary,” and “infamous,” and a “ruffian”
again, gentlemen of the jury; he called him a “brothel keeper,” a
“pander,” “a kind of bawd in breeches,” and a “ruffian” a third time,
gentlemen of the jury.
I cannot repress my astonishment, how Mr. Attorney-General could have
_preserved_ this dialect in its native purity; he has been now for
nearly thirty years in the class of polished society; he has, for some
years, mixed amongst the highest orders in the state; he has had
the honor to belong for thirty years to the first profession in the
world--to the only profession, with the single exception, perhaps, of
the military, to which a high-minded gentleman could condescend to
belong--the Irish Bar. To that Bar, at which he has seen and heard
a Burgh and a Duquery; at which he must have listened to a Burston,
a Ponsonby, and a Curran; to a Bar which still contains a Plunket,
a Ball, and, despite of politics, I will add, a Bushe. With this
galaxy of glory flinging their light around him, how can he alone have
remained in darkness? How has it happened, that the twilight murkiness
of his soul, has not been illumined with a single ray shot from their
lustre? Devoid of taste and of genius, how can he have had memory
enough to preserve this original vulgarity? He is, indeed, an object of
compassion, and, from my inmost soul, I bestow on him my forgiveness,
and my bounteous pity.[2]
But not for him alone should compassion be felt. Recollect, that
upon his advice--that with him, as the prime mover and instigator of
those rash, and silly, and irritating measures of the last five years
which have afflicted and distracted this long-suffering country,
have originated--with him they have all originated. Is there not then
compassion due to the millions whose destinies are made to depend upon
his counsel? Is there no pity to those who, like me, must know that the
liberties of the tenderest pledges of their affections, and of that
which is dearer still, of their country, depend on this man’s advice?
Yet, let not pity for us be unmixed; he has afforded the consolation
of hope; his harangue has been heard; it will be reported--I trust
faithfully reported; and if it be but read in England, we may venture
to hope that there may remain just so much good sense in England as to
induce the conviction of the folly and the danger of conducting the
government of a brave and long-enduring people by the counsels of so
tasteless and talentless an adviser.
See what an imitative animal man is! The sound of
ruffian--ruffian--ruffian, had scarcely died on the Attorney-General’s
lips, when you find the word honored with all the permanency of print,
in one of his pensioned and well-paid, but ill-read, newspapers. Here
is the first line in the _Dublin Journal_ of this day:--“The ruffian
who writes for the _Freeman’s Journal_.” Here is an apt scholar--he
profits well of the Attorney-General’s tuition. The pupil is worthy of
the master--the master is just suited to the pupil.
I now dismiss the style and measure of the Attorney-General’s
discourse, and I require your attention to its matter. That matter
I must divide, although with him there was no division, into two
unequal portions. The first, as it was by far the greater portion of
his discourse, shall be that which was altogether inapplicable to the
purposes of this prosecution. The second, and infinitely the smaller
portion of his speech, is that which related to the subject matter of
the indictment which you are to try. He has touched upon and disfigured
a great variety of topics. I shall follow him at my good leisure
through them. He has invited me to a wide field of discussion. I accept
his challenge with alacrity and with pleasure.
This extraneous part of his discourse, which I mean first to discuss,
was distinguished by two leading features. The first consisted of a
dull and reproving sermon, with which he treated my colleagues and
myself, for the manner in which we thought fit to conduct this defence.
He talked of the melancholy exhibition of four hours wasted, as
he said, in frivolous debate, and he obscurely hinted at something
like incorrectness of professional conduct. He has not ventured to
speak out, but I will. I shall say nothing for myself; but for my
colleagues--my inferiors in professional standing, but infinitely my
superiors in every talent and in every acquirement--my colleagues,
whom I boast as my friends, not in the routine language of the Bar,
but in the sincerity of my esteem and affection; for my learned and
upright colleagues, I treat the unfounded insinuation with the most
contemptuous scorn!
All I shall expose is the utter inattention to the fact, which, in
small things as in great, seems to mark the Attorney-General’s career.
He talks of four hours. Why, it was past one before the last of you
were digged together by the Sheriff, and the Attorney-General rose to
address you before three. How he could contrive to squeeze four hours
into that interval, it is for him to explain; nor should I notice it,
but that it is the particular prerogative of dulness to be accurate
in the detail of minor facts, so that the Attorney-General is without
an excuse when he departs from them, and when for four hours you
have had not quite two. Take this also with you, that we assert our
uncontrollable right to employ them as we have done; and as to his
advice, we neither respect, nor will we receive it; but we can afford
cheerfully to pardon the vain presumption that made him offer us
counsel.
For the rest, he may be assured that we will never imitate his example.
We will never volunteer to mingle our politics, whatever they may be,
with our forensic duties. I made this the rigid rule of my professional
conduct; and if I shall appear to depart from this rule now, I bid
you recollect that I am compelled to follow the Attorney-General into
grounds which, if he had been wise, he would have avoided.
Yes; I am compelled to follow him into the discussion of his conduct
towards the Catholics. He has poured out the full vial of his own
praise on that conduct--praise in which, I can safely assure him, he
has not a single unpaid rival. It is a topic upon which no unbribed
man, except himself, dwells. I admit the disinterestedness with which
he praises himself, and I do not envy him his delight, but he ought to
know, if he sees or hears a word of that kind from any other man, that
that man receives or expects compensation for his task, and really
deserves money for his labor and invention.
My lord, upon the Catholic subject, I commence with one assertion
of the Attorney-General, which I trust I misunderstood. He talked,
as I collected him, of the Catholics having imbibed principles of a
seditious, treasonable, and revolutionary nature! He seemed to me, most
distinctly, to charge us with treason! There is no relying on his words
for his meaning--I know there is not. On a former occasion, I took
down a repetition of this charge full seventeen times on my brief, and
yet, afterwards, it turned out that he never intended to make any such
charge; that he forgot he had ever used those words, and he disclaimed
the idea they naturally convey. It is clear, therefore, that upon this
subject he knows not what he says; and that these phrases are the mere
flowers of his rhetoric, but quite innocent of any meaning!
Upon this account I pass him by, I go beyond him, and I content myself
with proclaiming those charges, whosoever may make them, to be false
and base calumnies! It is impossible to refute such charges in the
language of dignity or temper. But if any man dares to charge the
Catholic body, or the Catholic Board, or any individuals of that Board
with sedition or treason, I do here, I shall always in this court, in
the city, in the field, brand him as an infamous and profligate _liar_!
Pardon the phrase, but there is no other suitable to the occasion. But
he is a profligate liar who so asserts, because he must know that the
whole tenor of our conduct confutes the assertion. What is it we seek?
Chief Justice.--What, Mr. O’Connell, can this have to do with the
question which the jury are to try?
Mr. O’Connell.--_You heard the Attorney-General traduce and calumniate
us--you heard him with patience and with temper--listen now to our
vindication!_
I ask, what is it we seek? What is it we incessantly and, if you
please, clamorously petition for? Why, to be allowed to partake of
the advantages of the constitution. We are earnestly anxious to share
the benefits of the constitution. We look to the participation in the
constitution as our greatest political blessing. If we desired to
destroy it, would we seek to share it? If we wished to overturn it,
would we exert ourselves through calumny, and in peril, to obtain a
portion of its blessings? Strange, inconsistent voice of calumny! You
charge us with intemperance in our exertions for a participation in the
constitution, and you charge us at the same time, almost in the same
sentence, with a design to overturn that constitution. The dupes of
your hypocrisy may believe you; but, base calumniators, you do not, you
cannot, believe yourselves!
The Attorney-General--“_this wisest and best of men_,” as his
colleague, the Solicitor-General, called him in his presence--the
Attorney-General next boasted of his triumph over Pope and Popery--“I
put down the Catholic Committee; I will put down, at my good time,
the Catholic Board.” This boast is partly historical, partly
prophetical. He was wrong in his history--he is quite mistaken in
his prophecy. He did not put down the Catholic Committee--we gave up
that name the moment that it was confessedly avowed that this sapient
Attorney-General’s polemico-legal controversy dwindled into a mere
dispute about words. He told us that in the English language “pretence”
means “purpose”; had it been French and not English, we might have been
inclined to respect his judgment, but in point of English we venture
to differ with him; we told him “purpose,” good Mr. Attorney-General,
is just the reverse of “pretence.” The quarrel grew warm and animated;
we appealed to common sense, to the grammar, and to the dictionary;
common sense, grammar, and the dictionary decided in our favor. He
brought his appeal to this court, your lordship, and your brethren
unanimously decided that, in point of law--mark, mark, gentlemen of the
jury, the sublime wisdom of law--the court decided that, in point of
law, _“pretence” does mean “purpose”_!
Fully contented with this very reasonable and more satisfactory
decision, there still remained a matter of fact between us: the
Attorney-General charged us with being representatives; we denied all
representation. He had two witnesses to prove the fact for him; they
swore to it one way at one trial, and directly the other way at the
next. An honorable, intelligent, and enlightened jury disbelieved those
witnesses at the first trial--matters were better managed at the second
trial--the jury were better _arranged_. I speak delicately, gentlemen;
the jury were better arranged, as the witnesses were better informed;
and, accordingly, there was one verdict for us on the representative
question, and one verdict against us.
You know the jury that found for us; you know that it was Sir Charles
Saxton’s Castle-list jury that found against us. Well, the consequence
was that, thus encouraged, Mr. Attorney-General proceeded to force.
We abhorred tumult, and were weary of litigation; we new-modelled the
agents and managers of the Catholic petitions; we formed an assembly,
respecting which there could not be a shadow of pretext for calling it
a representative body. We disclaimed representation; and we rendered it
impossible, even for the virulence of the most malignant law-officer
living, to employ the Convention Act against us--that, even upon the
Attorney-General’s own construction, requires representation as an
ingredient in the offence it prohibits. He cannot possibly call us
representatives; we are the individual servants of the public, whose
business we do gratuitously but zealously. Our cause has advanced even
from his persecution--and this he calls putting down the Catholic
Committee![3]
Next, he glorifies himself in his prospect of putting down the Catholic
Board. For the present, he, indeed, tells you, that much as he hates
the Papists, it is unnecessary for him to crush our Board, because
we injure our own cause so much. He says that we are very criminal,
but we are so foolish that our folly serves as a compensation for our
wickedness. We are very wicked and very mischievous, but then we are
such foolish little criminals, that we deserve his indulgence. Thus
he tolerates offences, because of their being committed sillily; and,
indeed, we give him so much pleasure and gratification by the injury we
do our own cause that he is spared the superfluous labor of impeding
our petition by his prosecutions, fines, or imprisonments.
He expresses the very idea of the Roman Domitian, of whom some of
you possibly may have read; he amused his days in torturing men--his
evenings he relaxed in the humble cruelty of impaling flies. A
courtier caught a fly for his imperial amusement--“Fool,” said the
emperor, “fool, to give thyself the trouble of torturing an animal
that was about to burn itself to death in the candle!” Such is the
spirit of the Attorney-General’s commentary on our Board. Oh, rare
Attorney-General!--Oh, best and wisest of men!!!
But, to be serious. Let me pledge myself to you that he imposes on you,
when he threatens to crush the Catholic Board. Illegal violence may do
it--force may effectuate it; but your hopes and his will be defeated,
if he attempts it by any course of law. I am, if not a lawyer, at
least a barrister. On this subject I ought to know something, and I do
not hesitate to contradict the Attorney-General on this point, and to
proclaim to you and to the country that the Catholic Board is perfectly
a legal assembly--that it not only does not violate the law, but that
it is entitled to the protection of the law, and in the very proudest
tone of firmness, I hurl _defiance_ at the Attorney-General!
I defy him to allege a law or a statute, or even a proclamation that
is violated by the Catholic Board. No, gentlemen, no; his religious
prejudices--if the absence of every charity can be called anything
religious--his religious prejudices really obscure his reason, his
bigoted intolerance has totally darkened his understanding, and he
mistakes the plainest facts and misquotes the clearest law, in the
ardor and vehemence of his rancor. I disdain his moderation--I scorn
his forbearance--I tell him he knows not the law if he thinks as he
says; and if he thinks so, I tell him to his beard, that he is not
_honest_ in not having sooner prosecuted us, and I challenge him to
that prosecution.
It is strange--it is melancholy, to reflect on the miserable and
mistaken pride that must inflate him to talk as he does of the Catholic
Board. The Catholic Board is composed of men--I include not myself--of
course, I always except myself--every way his superiors, in birth, in
fortune, in talents, in rank. What is he to talk of the Catholic Board
lightly? At their head is the Earl of Fingal, a nobleman whose exalted
rank stoops beneath the superior station of his virtues--whom even the
venal minions of power must respect. We are engaged, patiently and
perseveringly engaged, in a struggle through the open channels of the
constitution for our liberties. The son of the ancient earl whom I have
mentioned cannot in his native land attain any honorable distinction
of the state, and yet Mr. Attorney-General knows that they are open to
every son of every bigoted and intemperate stranger that may settle
amongst us.
But this system cannot last; he may insult, he may calumniate, he may
prosecute; but the Catholic cause is on its _majestic march_; its
progress is rapid and obvious; it is cheered in its advance, and aided
by all that is dignified and dispassionate--by everything that is
patriotic--by all the honor, all the integrity, of the empire; and its
success is just as certain as the return of to-morrow’s sun, and the
close of to-morrow’s eve.
“_We will--we must soon be emancipated_,” in despite of the
Attorney-General, aided as he is by his august allies, the aldermen of
Skinner’s-alley. In despite of the Attorney-General and the aldermen of
Skinner’s-alley, our emancipation is certain, and not distant.
I have no difficulty in perceiving the motive of the Attorney-General
in devoting so much of his medley oration to the Catholic question, and
to the expression of his bitter hatred to us, and of his determination
to ruin our hopes. It had, to be sure, no connection with the cause,
but it had a direct and natural connection with you. He has been, all
his life, reckoned a man of consummate cunning and dexterity; and
whilst one wonders that he has so much exposed himself upon those
prosecutions, and accounts for it by the proverbial blindness of
religious zeal, it is still easy to discover much of his native cunning
and dexterity. Gentlemen, he thinks he knows his men--he knows you;
many of you signed the no-Popery petition; he heard one of you boast of
it; he knows you would not have been summoned on this jury if you had
entertained liberal sentiments; he knows all this, and therefore it is
that he, with the artifice and cunning of an experienced _nisi prius_
advocate, endeavors to win your confidence and command your affections
by the display of his congenial illiberality and bigotry.
You are all, of course, Protestants; see what a compliment he pays to
your religion and his own, when he endeavors thus to procure a verdict
on your oaths; when he endeavors to seduce you to what, if you were so
seduced, would be perjury, by indulging your prejudices and flattering
you by the coincidence of his sentiments and wishes. Will he succeed,
gentlemen? Will you allow him to draw you into a perjury out of zeal
for your religion? And will you violate the pledge you have given
to your God to do justice, in order to gratify your anxiety for the
ascendancy of what you believe to be his church? Gentlemen, reflect on
the strange and monstrous inconsistency of this conduct, and do not
commit, if you can avoid it, the pious crime of violating your solemn
oaths, in aid of the pious designs of the Attorney-General against
Popery.
Oh, gentlemen! it is not in any lightness of heart I thus address
you--it is rather in bitterness and sorrow; you did not expect flattery
from me, and my client was little disposed to offer it to you; besides,
of what avail would it be to flatter, if you came here pre-determined,
and it is too plain that you are not selected for this jury from any
notion of your impartiality?
But when I talk to you of your oaths and of your religion, I would full
fain I could impress you with a respect for both the one and the other.
I, who do not flatter, tell you, that though I do not join with you in
belief, I have the most unfeigned respect for the form of Christian
faith which you profess. Would that its substance, not its forms and
temporal advantages, were deeply impressed on your minds! Then should I
not address you in the cheerless and hopeless despondency that crowds
on my mind, and drives me to taunt you with the air of ridicule I do.
Gentlemen, I sincerely respect and venerate your religion, _but_ I
despise and I now apprehend your prejudices, in the same proportion
as the Attorney-General has cultivated them. In plain truth, every
religion is good--every religion is true to him who, in his due caution
and conscience, believes it. There is but one bad religion, that of
a man who professes a faith which he does not believe; but the good
religion may be, and often is, corrupted by the wretched and wicked
prejudices which admit a difference of opinion as a cause of hatred.
The Attorney-General, defective in argument--weak in his cause, has
artfully roused your prejudices at his side. I have, on the contrary,
met your prejudices boldly. If your verdict shall be for me, you
will be certain that it has been produced by nothing but unwilling
conviction resulting from sober and satisfied judgment. If your verdict
be bestowed upon the artifices of the Attorney-General, you may happen
to be right; but do you not see the danger of its being produced by
an admixture of passion and prejudice with your reason? How difficult
is it to separate prejudice from reason, when they run in the same
direction! If you be men of conscience, then I call on you to listen
to me, that your consciences may be safe, and your reason alone be the
guardian of your oath, and the sole monitor of your decision.
I now bring you to the immediate subject of this indictment. Mr. Magee
is charged with publishing a libel in his paper called the _Dublin
Evening Post_. His lordship has decided that there is legal proof of
the publication, and I would be sorry you thought of acquitting Mr.
Magee under the pretence of not believing that evidence. I will not,
therefore, trouble you on that part of the case; I will tell you,
gentlemen, presently, what this publication is; but suffer me first to
inform you what it is not--for this I consider to be very important to
the strong, and in truth, triumphant defence which my client has to
this indictment.
Gentlemen, this is _not_ a libel on Charles Lennox, Duke of Richmond,
in his private or individual capacity. It does not interfere with the
privacy of his domestic life. It is free from any reproach upon his
domestic habits or conduct; it is perfectly pure from any attempt to
traduce his personal honor or integrity. Towards the man, there is
not the least taint of malignity; nay, the thing is still stronger.
Of Charles, Duke of Richmond, personally, and as disconnected with
the administration of public affairs, it speaks in terms of civility
and even respect.[4] It contains this passage which I read from the
indictment:
“Had he remained what he first came over, or what he afterwards
professed to be, he would have retained his reputation for _honest open
hostility_, defending his political principles with firmness, perhaps
with warmth, but without rancor; the supporter and not the tool of an
administration; a mistaken politician, perhaps, but an honorable man
and a respectable soldier.”
The Duke is here in this libel, my lords,--in this libel, gentlemen
of the jury, the Duke of Richmond is called an honorable man and a
respectable soldier! Could more flattering expressions be invented? Has
the most mercenary Press that ever yet existed, the mercenary Press
of this metropolis, contained, in return for all the money it has
received, any praise which ought to be so pleasing--“an honorable man
and a respectable soldier”? I do, therefore, beg of you, gentlemen, as
you value your honesty, to carry with you in your distinct recollection
this fact, that whatever of evil this publication may contain, it does
not involve any reproach against the Duke of Richmond in any other than
in his public and official character.
I have, gentlemen, next to require you to take notice that this
publication is not indicted as a seditious libel. The word seditious
is, indeed, used as a kind of make-weight in the introductory part of
the indictment. But mark, and recollect, that this is not an indictment
for sedition. It is not, then, for private slander, nor for any offence
against the constitution, that Mr. Magee now stands arraigned before
you.
In the third place, gentlemen, there is this singular feature in this
case, namely, that this libel, as the prosecutor calls it, is not
charged in this indictment to be “false.”
The indictment has this singular difference from any other I have ever
seen, that the assertions of the publications are not even stated to be
false.
They have not had the courtesy to you, to state upon record that these
charges, such as they are, were contrary to the truth. This I believe
to be the first instance in which the allegation of falsehood has
been omitted. To what is this omission to be attributed? Is it that
an experiment is to be made, how much further the doctrine of the
criminality of truth can be drawn? Does the prosecutor wish to make
another bad precedent; or is it in contempt of any distinction between
truth and falsehood, that this charge is thus framed; or does he fear
that you would scruple to convict, if the indictment charged that to be
false which you all know to be true?
However that may be, I will have you to remember that you are now to
pronounce upon a publication, _the truth of which is not controverted_.
Attend to the case, and you will find you are not to try Mr. Magee
for sedition which may endanger the state, or for private defamation
which may press sorely upon the heart, and blast the prospects of a
private family; and that the subject matter for your decision is not
characterized as false, or described as untrue.
Such are the circumstances which accompany this publication, on which
you are to pronounce a verdict of guilt or innocence. The case is with
you; it belongs to you exclusively to decide it. His lordship may
advise, but he cannot control your decision, and it belongs to you
alone to say whether or not, upon the entire matter, you conceive it
to be evidence of guilt, and deserving of punishment. The statute law
gives or recognizes this your right, and, therefore, imposes this on
you as your duty. The legislative has precluded any lawyer from being
able to dictate to you. The Solicitor-General cannot now venture to
promulgate the slavish doctrine which he addressed to Doctor Sheridan’s
jury, when he told them, “not to _presume_ to differ from the Court in
matter of law.” The law and the fact are here the same, namely, the
guilty or innocent design of the publication.
Indeed, in any criminal case, the doctrine of the Solicitor-General is
intolerable. I enter my solemn protest against it. The verdict which is
required from a jury in any criminal case has nothing special in it--it
is not the finding of the fact in the affirmative or negative--it is
not, as in Scotland, that the charge is proved or not proved. No; the
jury is to say whether the prisoner be guilty or not; and could a
juror find a true verdict, who declared a man guilty upon evidence of
some act, perhaps praiseworthy, but clearly void of evil design or bad
consequences?
I do, therefore, deny the doctrine of the learned gentleman; it is not
constitutional, and it would be frightful if it were. _No judge can
dictate to a jury_--no jury ought to allow itself to be dictated to.
If the Solicitor-General’s doctrine were established, see what
oppressive consequences might result. At some future period, some
man may attain the first place on the bench, by the reputation which
is so easily acquired by a certain degree of churchwardening piety,
added to a great gravity, and maidenly decorum of manners. Such a man
_may_ reach the bench--for I am putting a mere imaginary case--_he_
may be a man without _passions_, and _therefore_ without _vices_; he
may, my lord, be a man superfluously _rich_, and, therefore, not to be
_bribed_ with _money_, but rendered _partial_ by his _bigotry_, and
_corrupted_ by his _prejudices_; such a man, _inflated_ by _flattery_,
and _bloated_ in his dignity, may hereafter use that character for
_sanctity_ which has served to promote him, as a sword to hew down the
struggling liberties of his country; such a judge may interfere before
trial! and at the trial be a _partisan_!
Gentlemen, should an honest jury--could an honest jury (if an
honest jury were again found) listen with safety to the dictates of
such a judge? I repeat it, therefore, that the Solicitor-General
is mistaken--that the law does not, and cannot, require such a
submission as he preached; and at all events, gentlemen, it cannot be
controverted, that in the present instance, that of an alleged libel,
the decision of all law and fact belongs to _you_.
I am then warranted in directing to you some _observations_ on the _law
of libel_, and in doing so, I disclaim any apology for the consumption
of the time necessary for my purpose. Gentlemen, my intention is to lay
before you a short and rapid view of the causes which have introduced
into courts the monstrous assertion--_that truth is crime!_
It is to be deeply lamented that the art of printing was unknown at
the earlier periods of our history. If at the time the barons wrung
the simple but sublime charter of liberty from a timid, perfidious
sovereign, from a violator of his word, from a man covered with
disgrace, and sunk in infamy--if at the time when that charter was
confirmed and renewed, the Press had existed, it would, I think, have
been the first care of those friends of freedom to have established
a principle of liberty for it to rest upon which might resist every
future assault. Their simple and unsophisticated understandings could
never be brought to comprehend the legal subtleties by which it is now
argued that falsehood is useful and innocent, and truth, the emanation
and the type of heaven, a crime. They would have cut with their swords
the cobweb links of sophistry in which truth is entangled; and they
would have rendered it impossible to re-establish this injustice
without violating the principle of the constitution.
But in the ignorance of the blessing of a _free Press_, they could not
have provided for its security. There remains, however, an expression
of their sentiments on our statute books. The ancient parliament did
pass a law against the spreaders of _false_ rumors. This law proves
two things,--first, that before this statute, it was not considered a
crime in law to spread even a false rumor, otherwise the statute would
have been unnecessary; and, secondly, that in their notion of crime,
falsehood was a necessary ingredient. But here I have to remark upon
and regret the strange propensity of judges, to construe the law in
favor of tyranny, and against liberty; for servile and corrupt judges
soon decided that upon the construction of this law it was immaterial
whether the rumors were true or false, and that a law made to punish
false rumors, _was equally applicable to the true_.
This, gentlemen, is called _construction_; it is just that which in
more recent times, and of inevitable consequence from purer motives,
has converted “_pretence_” into “_purpose_.”
When the art of printing was invented, its value to every sufferer, its
terror to every oppressor, was soon obvious, and means were speedily
adopted to prevent its salutary effects. The Star-Chamber--the odious
Star-Chamber--was either created, or, at least, enlarged and brought
into activity. Its proceedings were arbitrary, its decisions were
oppressive, and injustice and tyranny were formed into a system. To
describe it to you in one sentence, it _was a prematurely packed jury_.
Perhaps that description does not shock you much. Let me report one of
its decisions, which will, I think, make its horrors more sensible to
you--it is a ludicrous as well as a melancholy instance.
A tradesman--a ruffian, I presume, he was styled--in an altercation
with a nobleman’s servant, called the swan which was worn on the
servant’s arm for a badge, a goose. For this offence--the calling
a nobleman’s badge of a swan, a goose--he was brought before the
Star-Chamber; he was, of course, convicted; he lost, as I recollect,
one of his ears on the pillory, was sentenced to two years’
imprisonment, and a fine of £500; and all this to teach him to
_distinguish swans from geese_.
I now ask you, to what is it you tradesmen and merchants are indebted
for the safety and respect you can enjoy in society? What is it which
has rescued you from the slavery in which persons who are engaged in
trade were held by the iron barons of former days? I will tell you; it
is the light, the reason, and the liberty which have been created, and
will, in despite of every opposition, be perpetuated by the exertion of
the Press.
Gentlemen, the Star-Chamber was particularly vigilant over the infant
struggles of the Press. A code of laws became necessary to govern the
new enemy to prejudice and oppression--the Press. The Star-Chamber
adopted, for this purpose, the civil law, as it is called--the law of
Rome--not the law at the periods of her liberty and her glory, but the
law which was promulgated when she fell into slavery and disgrace, and
recognized this principle, that the will of the prince was the rule of
the law. The civil law was adopted by the Star-Chamber as its guide in
proceedings against, and in punishing libellers; but, unfortunately,
only part of it was adopted, and that, of course, was the part
least favorable to freedom. So much of the civil law as assisted to
discover the concealed libeller, and to punish him when discovered, was
carefully selected; but the civil law allowed truth to be a defence,
and that part was carefully rejected.
The Star-Chamber was soon after abolished. It was suppressed by the
hatred and vengeance of an outraged people, and it has since, and
until our days, lived only in the recollection of abhorrence and
contempt. But we have fallen upon bad days and evil times; and in our
days we have seen a lawyer, long of the prostrate and degraded Bar
of England, presume to suggest an high eulogium on the Star-Chamber,
and regret its downfall; and he has done this in a book dedicated,
by permission, to Lord Ellenborough. This is, perhaps, an ominous
circumstance; and as Star-Chamber punishments have been revived--as two
years of imprisonment have become familiar--I know not how soon the
useless lumber of even well-selected juries may be abolished, and a new
Star-Chamber created.
From the Star-Chamber, gentlemen, the prevention and punishment of
libels descended to the courts of common law, and with the power they
seem to have inherited much of the spirit of that tribunal. Servility
at the bar, and profligacy on the bench, have not been wanting to aid
every construction unfavorable to freedom, and at length it is taken as
granted and as clear law that truth or falsehood are quite immaterial
circumstances, constituting no part of either guilt or innocence.
I would wish to examine this revolting doctrine, and, in doing so,
I am proud to tell you that it has no other foundation than in the
oft-repeated assertions of lawyers and judges. Its authority depends
on what are technically called the _dicta_ of the judges and writers,
and not upon solemn or regular adjudications on the point. One
servile lawyer has repeated this doctrine, from time to time, after
another--and one overbearing judge has re-echoed the assertion of a
time-serving predecessor; and the public have, at length, submitted.
I do, therefore, feel not only gratified in having the occasion, but
bound to express my opinion upon the real law of this subject. I know
that opinion is but of little weight. I have no professional rank,
or station, or talents to give it importance, but it is an honest
and conscientious opinion, and it is this--that in the discussion of
_public subjects_, and of the administration of _public men_, _truth_
is a duty and not _a crime_.
You can, at least, understand _my_ description of the liberty of
the Press. That of the Attorney-General is as unintelligible as
contradictory. He tells you, in a very odd and quaint phrase, that the
liberty of the Press consists in there being no previous restraint upon
the tongue or the pen. How any _previous_ restraint could be imposed on
the tongue it is for this wisest of men to tell you, unless, indeed,
he resorts to Doctor Lad’s prescription with respect to the toothache
eradication. Neither can the absence of previous restraint constitute
a free Press, unless, indeed, it shall be distinctly ascertained,
and clearly defined, what shall be subsequently called a crime. If
the crime of libel be undefined, or uncertain, or capricious, then,
instead of the absence of restraint before publication being an
advantage, it is an injury; instead of its being a blessing, it is a
curse--it is nothing more than a pitfall and snare for the unwary.
This liberty of the Press is only an opportunity and a temptation
offered by the law to the commission of crime--it is a trap laid to
catch men for punishment--it is not the liberty of discussing truth
or discountenancing oppression, but a mode of rearing up victims for
prosecution, and of seducing men into imprisonment.
Yet, can any gentleman concerned for the Crown give me a definition
of the crime of libel? Is it not uncertain and undefined; and, in
truth, is it not, at this moment, quite subject to the caprice and
whim of the judge and of the jury? Is the Attorney-General--is the
Solicitor-General--disposed to say otherwise? If he do, he must
contradict his own doctrine, and adopt mine.
But no, gentlemen, they must leave you in uncertainty and doubt, and
ask you to give a verdict, on your oath, without furnishing you with
any rational materials to judge whether you be right or wrong. Indeed,
to such a wild extent of caprice has Lord Ellenborough carried the
doctrine of crime in libel, that he appears to have gravely ruled,
that it was a crime to call one lord “a stout-built, special pleader,”
although, in point of fact, that lord was stout-built, and had been
very many years a special pleader. And that it was a crime to call
another lord “a sheep-feeder from Cambridgeshire,” although that
lord was right glad to have a few sheep in that county. These are the
extravagant vagaries of the Crown lawyers and prerogative judges; you
will find it impossible to discover any rational rule for your conduct,
and can never rest upon any satisfactory view of the subject, unless
you are pleased to adopt my description. Reason and justice equally
recognize it, and, believe me, that genuine law is much more closely
connected with justice and reason than some persons will avow.
Gentlemen, you are now apprised of the nature of the alleged libel;
it is a discussion upon the administration of public men. I have also
submitted to you my view of the law applicable to such a publication:
we are, therefore, prepared to go into the consideration of every
sentence in the newspaper in question.
But before I do so, just allow me to point your attention to the
motives of this young gentleman. The Attorney-General has threatened
him with fine and a dungeon; he has told Mr. Magee that he should
suffer in his purse and in his person. Mr. Magee knew his danger
well. Mr. Magee, before he published this paper, was quite apprised
that he ran the risk of fine and of imprisonment. He knew also
that if he changed his tone--that if he became merely neutral, but
especially if he went over to the other side and praised the Duke of
Richmond--if he had sufficient gravity to talk, without a smile, of
the sorrow of the people of Ireland at his Grace’s departure--if he
had a visage sufficiently lugubrious to say so without laughing, to
cry out “mournfully, oh! mournfully!” for the departure of the Duke of
Richmond--if, at a period when the people of Ireland, from Magherafelt
to Dingledecouch, are rejoicing at that departure, Mr. Magee could put
on a solemn countenance and pick up a grave and narcotic accent, and
have the resolution to assert the sorrow of the people for losing so
sweet and civil a Lord Lieutenant--why, in that case, gentlemen, you
know the consequences. They are obvious. He might libel certain classes
of his Majesty’s subjects with impunity; he would get abundance of
money, a place, and a pension--you know he would. The proclamations
would be inserted in his paper. The wide-street advertisements, the
ordnance, the barrack-board notices, and the advertisements of all the
other public boards and offices--you can scarcely calculate how much
money he sacrifices to his principles. I am greatly within bounds when
I say at least £5000 per annum, of the public money, would reach him if
he was to alter his tone, and abandon his opinions.
Has he instructed me to boast of the sacrifices he thus makes? No,
gentlemen, no, no; he deems it no sacrifice because he desires no
share in the public plunder; but I introduce this topic to demonstrate
to you the purity of his intentions. He cannot be actuated, in the
part he takes, by mean or mercenary motives; it is not the base lucre
of gain that leads him astray. If he be mistaken, he is, at least,
disinterested and sincere. You may dislike his political opinions, but
you cannot avoid respecting the independence of his principles.
Behold, now, the publication which this man of pure principles is
called to answer for as a libel. It commences thus:--
“DUKE OF RICHMOND.
“As the Duke of Richmond will shortly retire from the government of
Ireland, it has been deemed necessary to take such a review of his
administration as may at least warn his successor from pursuing the
errors of his Grace’s conduct.
“The review shall contain many anecdotes of the Irish court which were
never published, and which were so secret, that his Grace will not fail
to be surprised at the sight of them in a newspaper.”
In this paragraph there is nothing libellous; it talks of the errors,
indeed, of his Grace’s administration; but I do not think the
Attorney-General will venture to suggest that the gentle expression of
“errors” is a libel.
To err, gentlemen, is human: and his Grace is admitted, by the
Attorney-General, to be but a man; I shall waste none of your time in
proving that we may, without offence, treat of his “errors.” But this
is not even the errors of the man, but of his administration; it was
not infallible, I humbly presume.