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