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this trial came on, before Mr. Baron Wood , Esq. Mr. M. Elgie, and an Officer from and a Special Jury; only six special jury- the Stamp Oflice in London, gave testimen of the pannel answered to their mony. names, but a tales being prayed, the fol MR. BROUGHAM (who had been brought lowing gentlemen were sworn :
from the York Circuit) then rose, and, on George Uppleby, Esq.
behalf of the defendant, addressed the Wm. Graburn, Esq.
Jury in a most eloquent speech of two John Richardson, Esq.
hours and a quarter. John Green, Esq.
After some observations upon the ingeJohn Manners, Esq.
nious and sophistical manner in which, he John Eliott, Esq.
said, the advocate for the prosecution had J. Ellis (Cherry Willingham) tortured the tendency of the alledged libel Thomas Brown
and the intention of the author, he alluded Christopher Norwood
to the late trial of the, Messrs. Hunts in George Sanders
London, for publishing the greater part of John Coulson
the article which was the subject of this William Mossop
prosecution, in their Paper called the ExaThe pleadings were opened by Mr. miner. They had copied and adopted Reynolds, and the case was stated by Mr. three-fourths of the disquisition on military Clarke, who, with Serjeant Vaughan and discipline, from the defendant's paper; Mr. Reader, conducted the prosecution.- and on trial for the alleged offence of se The libel was stated to have been pub- doing, had, by a Jury of their country, lished in the paper called “ Drakard's been acquitted of criminality :-—"and" Stamford News," of the 24th of August said Mr. Brougham, “can that be innolast, and to be embodied in some observa cent in Westminster which is criminal in tions headed “One Thousand Lashes,” Lincolnshire !”—The learned Gentleman tending to create disaffection amongst the proceeded to assert the right of Englishmen soldiers, to alienate their affections from to form and deliver their opinions upon their officers, and to occasion a general any subject upon which they chose to exprejudice to the military service of the ercise their judgment. He begged to be country, by holding up the discipline of informed since when it was that he might the army to abhorrence, and deterring his know the æra for the purpose
of cursing Majesty's subjects from entering therein. it) that an Englishman, feeling strongly The publication, Mr. Clarke stated, was of upon an interesting subject, might not & nature so infamous, so seditious and strongly and freely express his opinion? dangerous, that no good man who heard the right of forming an opinion was in- · it read, could restrain his resentment, or contestible; and was it to be told to any hesitate in bis judgment upon it; and he man, that he must adopt a particular form thought the Attorney-General would have of words in expressing it? The publicabeen grossly derelict of his duty, had tion before the Jury was a piece of reahe not proceeded to prosecute the author soning in support of an honest judgment; and publisher of venom so foul as that and was the defendant to be visited with contained in the libel. He then read two years' imprisonment in a dungeon, various passages of the libel coraplained because, in support of his opinion, he had of, commenting with severity as he pro- not argued dully, supported it feebly, and ceeded. The tendency and object of illustrated it obscurely ? Surely not. such a doctrine, he maintained, could only Whatever were the inconveniences of be to breed mutiny, subvert the military warm expressions, we must submit to establishment of the country, and make them, if we would have discussion at all; us, by the disaffection of our soldiery, an and as to popular clamour, in a free couneasy conquest of our implacable enemy; try, it was desirable rather than not, as and he called upon the Jury, by their tending to a right understanding of affairs, verdict, to pronounce their sense of the and a just appreciation of measures. heinousness of the publication laid before - Uproar in England is wholesome; whilst them. The printing and publishing of in France,” said Mr. Brougham, “every the libel were proved by the production whisper is pestilential.” The beneficial of a copy of the paper of the 24th of consequence of discussion, like that now August; and the responsibility of the de- complained of, was, that in attacking the fendant, by some official regulations of laws and blots of our establishments, it the Stamp Office, of which John Booth, produced something near perfection, such
discussion was the inalienable right of interference of the licensers in England, Englishmen; and the most vital part of the was what rightly was understood by the Constitution under which they lived. - liberty of the press; it was not to be supIn palliation of that part of the libel which poscd that any man was to print whatever in strong terms reprobated the military his seditious views, or a malignant disposystem of the dung, called it, a greater sition might suggest, and to call that the curse than the Inquisition, and the most liberty of the press which he had a right heart-lending tyranny on this side hell, to enjoy uninterruptedly--no such thing ; The Learned Council read passages in the but the press was a free agent to all, but publication of Sir Robert Wilson on the every man must answer for his use of it ; subject of military punishments, in which and it was the office of a Jury to stand beflogging was condemned in equally strong tween the liberty and the licentiousness terms.and when he sat down, a conside- of it.-As to the publication before the rable clapping was set up in the gallery Court, read as it was, and was meant to and extremities of the Court. The Judge, be, in public-houses, by illiterate persons, with great indignation, censured this in- incapable of deep thinking, it was not to be decency, and threatened one person, whom regarded in the same light as Sir Robert he selected from the crowd, with impri- Wilson's publication (meant for the libraries sonment for the offence.
of men of judgment); its bane was unacMr. Clarke, rising to reply to the de companied by any antidote, and might do fence, observed that a stronger proof of the inconceivable mischief. It was a strange evil tendency and iniluence of the pub- way of encouraging the English soldier, lication of the Defendant could not be to hold him out as a degraded slave, cut shown, than in the gross attempt which off from the pale of the Constitution, and had been just made to overawe by popu. below the level of his fellow subjects. Not. Jar clamour, and to beat down the free withstanding the boasted excellence of the agency of the Jury. The defence made system of Buonaparté, whose service the for the present Defendant, he said, was delendant so much admired, our soldiers ever the sort of defence made for men of never yet had met those of the Tyrant similar sentiments and conduct; the advo- without proving the superiority of their cate who had defended the author of " The courage, and their love for their officers; Rights of Man,” had taken precisely the and if they were not reduced or seduced by same ground, and pleaded the same rights. such miscreants, as the author of the present The allusion of the Learned Gentleman to libel, would still repel the enemy and save the trial of the Messrs. Hunts, gare him their country; but if they were to be (Mr. Clarke) a right he had not assumed insulted and taunted, or taught that they before, of making those very persons wit. bled for those who treated them only ness against the Defendant; for although with cruelty, whilst Buonaparte respected their will to say all they dare was not his soldiers and made their condition sur to be doubted, it was a powerful circum- perior--the safety of the country was no stance against the present defendani, that longer to be regarded as certain. in copying the ariicle from his paper for The Judge, in his address to the Jury, which they had been prosecuted, they observed, that they trad heard a very had omitted the strongest parts of it, and eloquent and powerful barangue in favour thus shewn their own judgment of the of thie D. Sendant, and the Learned Coun. libellous tendency of the original. The sel had done his duty to his client; it was present prosecution, therefore, was for a the duty of the Jury to consult the justice libel infinitely stronger than those men had of the country. The Learned Counsel dared to publish; and yet the opinion of had asked, whether what was innocent at the eminent Judge who tried the cause in Westminster should be criminal at Linwhich they were criminated was, that coln ? He (the Judge) did not wish to even their softened publication was a sedi- speak disrespectfully of Juries, but he tious and mischievous libel. Alluding to the might be permitted to say, that the Genliberty of the press, about which so much tlemen he then addressed were not to be had been advanced, the Learned Gentle bound by the conduct of any other Jury, man said that too much was assumed under and he thought them at least as competent that mis-used phrase; in France and other as that referred to at Westminster, to form countries the liberty of the press existed a just judgment in the matter brought be. pot, because licensers were appointed 10 fore them. “I am sorry,” said Siç fortroul it; and this exemption from the George Wood, " to say, that we live in came
" age when the liberty of the press is most scan Juryman. Worthy Sir! I am glad to see dalously abused, and libelling is become a you thus opportunely, there being scarce
Violent and inflammatory ex any person that I could at this time rather pressions, he added, were not to be mixed have wished to meet with. up with discussion, and to pass under the Barr. I shall esteem myself happy, if cloak of warm feeling for the public good. in any thing I can serve you.--The buLet the Jury examine the publication be: siness, I pray ? fore them, and see whether any good Jurym. 'I am summoned to appear opon motive could reasonably be supposed to a Jury, and was just going to try if I bave actuated the writer. It was to be could get off. Now I doubt not but you feared that many persons in this country can put me into the best way to obtain cere endeavouring io assist the enemy in his that favour. project of disgusting the people with institutions Burr. It is probable I could ; but first by which they were governed. With respect let me know the reasons why you desire to the observations of the learned Gen- to decline that service. tleman (Mr. Brougham) on the sub Jurym. You know, Sir, there is someject of military flogging, he could not thing of trouble and loss of time in it :but think his speech of this day would and men's lives, liberties, and estates have been better delivered in that hơn. House (which depend upon a jury's guilty or not of which he was a member; helioped he should guilty, for the plaintiff
, or for the defendsonn see him agitate the subject there : if ant) are weighty things. I would not he did not, it must be inferred that the wrong my conscience for a world, nor be Gentleman did not mean as he said. The accessary to any man's ruin. There are Learned Judge then alluded to the cuse of others better skilled in such matters. I Mr. Finnerty, as an instance of the extra- have ever so loved peace, that I have ordinary temper for libelling which was forborne going to law (as you well know) • prevalent, and the extravagant notions many times, though it hath been much to which prevailed about the right of saying my loss. and publishing whatever it was fancied Barr. I commend your tenderness and could be justified. It was said that indi. modesty ; yet must tell you, these are viduals had a righe to discuss the very laws but general and weak excuses. of the country ; were we then to have a As for your time and trouble, it is not power beyond the Legislature itself? If much; and, however, can it be better such were the case, there was no security to spent than in doing justice, and serving our establishments ; but the notion was not your country ? To withdraw yourself in only highly dangerous, but in the highest such cases, is a kind of sacrilege, a degree unconstitutional. If the Jury robbing of the public of those duties which could be of opinion that any thing but you justly owe it. The more peaceable mischief was meant by the publication man you have been, the more fit you are; under their consideration, they would ac- for the office of a Juryman is, conscienquit the defendant; but he (the Judge), in tiously to judge his neighbour ; and needs the conscientious discharge of his duty, no more law than is easily learnt to direct had no hesitation in saying, that he con- him therein. I look upon you therefore sidered it a most wicked libel.
as a man well qualified with estate, disThe Jury withdrew, for about 'ten cretion, and integrity; and if all such as minutes, and brought in a verdict of you should use private means to avoid it, GUILTY.
how would the king and country be ho.
nestly served ? At that rate we should THE ENGLISHMAN'S RIGHT :
have none but fools or knaves entrusted in A Dialogue between a Barrister at Law and observe) the lives, liberties, and estates of
this grand concern, on which (as you well a Juryman ; plainly setting forth, 1. The all England depend. Antiquity, II. The Ercellent Designed
Your tenderness not to be accessary to any Use, IM. The Ofice, and Just Privileges
, man's being wronged or ruined, is (as I OPJURIES, by the Law of England..
said) much to be commended. But may By Sir John Hawles, Solicitor-General
you not incur it unawares, by seeking 10. King William III.
thus to avoid it! Pilate was not innocent Burister
. My old Client! a good because he washed his hands, and said, morning
12 you; whither so fast.? you He would have nothing to do with the
yon some important affair. blood of that just one. There are faults
of omission as well as commission. When of scruple, it may soon be removed, if you you are legally called to try such a cause, will but give yourself a very little trouble if you shall
shuffle out yourself, and thereby of enquiry into the necessary provisions of persons perhaps less conscientious happen the law of Englaad relating to this matter. to be made use of, and so a villain escapes Jurym. There is nothing (of a temporal justice, or an innocent man is ruined, by a concern) that I would more gladly be inprepossessed or negligent verdict; can formed in; because I am satisfied, it is you think yourself in such a case wholly very expedient to be generally known. blameless ? • Qui non prohibit cum potest, And first, I would learn how long trials by • jubet : That man abets an evil," who juries have been used in this nation *. • prevents it not, when it is in his power.' Barr. Even time out of mind ;-50 • Nec caret scrupulo societatis occultæ, qui long, that our best historians cannot date
evidenter facinori desinit obviare. Nor can the original of the institution; being inbe escape the suspicion of being a se deed cotemporary with the nation itself, 'cret accomplice, who evidently de or in use as soon as the people were re
clines the prevention of an atrocious duced to any form of civil government, • crime.'
and administration of justice. Nor have Jurym. Truly, I think a man is bound to the several conquests or revolutions, the do all the good he can ; especially when mixtures of foreigners, or the mutual feuds he is lawfully called to it. But there of the natives, at any time, been able to sometimes happen nice cases, wherein it suppress or overthrow it. For, may be difficult to discharge one's consci 1. That juries (the thing in effect and ence without incurring the displeasure of substance, tho' perhaps not just the numthe court, and thence trouble and damage ber of twelve men) were in use among the may arise.
Britons, (the first inhabitants of this island) Burr. That is but a vain and needless appears by the ancient monuments and fear. For as the jurors privileges (and writings of that nation; attesting that their every Englishman's in and by them) are Freeholders had always a share in all trials very considerable ; so the laws have no and determinations of differences. less providently guarded them against in 2. Most certain it is, that they were vasion or usurpation. So that there needs practised by the Sarons t, and were then no more than, first understanding to know ihe only courts, or at least an essential, your duty; and, in the next place, cou- and the greater part, of all courts of judi. rage and resolution to practise it with cature: for so (to omit a multitude of impartiality and integrity, free from ac- Other instances) we find in king Ethelred's cursed bribery and malice, or (what is full Laws, · In singulis Centuriis, &c.' · In as bad in the end) base and servile fear. • every hundred let there be a court, and
Jurym. I am satisfied, that as it is for let twelve ancient freemen, together the advantage and honour of the public, with the Lord, (or rather, according to that men of understanding, substance and the Saxon, the Greve, i.e. the chief ofhonesty, should be employed to serve on • ficer amongst them) be sworn, that they juries, that justice and right may fairly be will not condemn any person that is in. administered ; so it is their own interest, nocent, nor acquit any one that is guilty.' when called thereunto, readily to bestow 3. When the Normans came in, William, their attendance and service, to prevent tho' commonly called the Conqueror, was ill precedents from men otherwise qualified; so far from abrogating this privilege of which may by degrees fatally, though in Juries 1, that in the fourth year of bis sensibly, undermine our just birth-rights, and perhaps fall heavy one day upon us, * Our author, in his title-page, told us, or our posterity. But, for my own part, that he intended to point out, with respect I am fearful lest I should suffer through to Juries, 1. their antiquity; 2. their exmy ignorance of the duty and office of a cellent designed use; 3. their office and just juryman; and, therefore, on that account privileges. In answer to the Juryman's principally it is, that I desire to be ex. question, and in compliance with his own cused in my appearance ; which, if I un- promise, he is now going to treat of the derstood but so well as I hope many others antiquity of Juries. do, I would with all my heart attend the † Lamb. p. 218. Coke, 1 part, Institut-s. service.
fol. 155. Barr. You speak honestly, and like an
See Spelman's Glossar. in we word Englishman. But if that be all your cause Jurata.
reign, he confirmed all king Edward the has been endeavoured; but so sacred and Confessor's laws, and the ancient customs valuable was the institution in the eyes of of the kingdom, whereof this was an es our ancestors, and so tenacious were they sential and most material part. Nay, be of tbeir privileges, and zealous to mainmade use of a Jury, chosen in every tain, and preserve such a vital part of their county, to report and certify on their birth-right and freedom; that no such atoaths what those laws and customs were; tempts could ever prove effectual, but alas appears in the proem of such his con ways ended with the shame and severe pufirmation.
nishment of the rash undertakers. For 4. Afterwards when the Great Charter, example, commonly called Magna Charta, (which is 1. Andrew Horn, an eminent lawyer, in nothing else than a recital, confirmation, his book, entitled The Mirror of Justices, and corroboration of our ancient English (written in the reign of king Edward I', liberties) was made and put under the now near 400 years ago) in the fifth great seal of England, in the ninth year of chapter, and first section, records, That king Henry 'the Third, (which was anno the renowed Saxon king Alfred caused Domini 1225) then was this privilege of four and forty justices to be hanged in trials by Juries in an especial manner one year, as murderers, for their false judgconfirmed and established; as in the ments. And there recites their particular fourteenth chapter, -" That no amerce- crimes, most of them being in one kind 'ments shall be assessed, but by the oath or other infringements, violations, and en
of good and honest men of the vicinage.' croachments of and upon the rights and And more fully in that golden nine-and- privileges of Juries. Amongst the rest, twentieth chapter-No freeman shall be that worthy author tells us, he hanged one
taken or imprisoned, nor be disseised of justice Cadwine, because he judged one • his freehold or liberties, or free customs, Hackwy to death without the consent of all or be out-lawed, or exiled, or any other the Jurors; for whereas he stood upon his way destroyed, nor shall we pass upon Jury of twelve men, because three of them would bim, or condemn him, but by the lawful have saved him, this Cadwine removed those judgment of his peers,' &c. Which three, and put others in their room on the Grand Charter having been confirmed by Jury, against the said Hackwy's consent. above thirty acts of parliament, the said where we may observe, that though at right of Juries thereby, and by constant last twelve men did give a verdict against usage, and common custom of England, him, yet, those, so put upon him, were not which is the common law, is brought down accounted his Jurors, by reason all, or any to us as our undoubted birth-right, and of them, who were first sworn to try him, the best inheritance of every Englishman. could not (by law) be removed, and others For as that famous lawyer, chief justice put in their stead : And that such illegal Coke *, in the words of Cicero, excellently alteration was then adjudged a capital avers, ' Major hæreditas denit unicuique nos crime, and forthwith the said Cadwine was trun a jure & legibus, quam a parentibus.' hanged. • It is a greater inheritance, and more to be 2. A second instance I shall give you
valued, which we derive from the funda- in the words of the lord chief justice Coke*: 'mental constitution and laws of our coun. Against this ancient and fundamental try, than that which comes to us from law, and in the face thereof, there was in our respective parents:' for without the the eleventh year of king Henry VII. cap. former, we have no claim to the latter. • 3. an act of Parliament obtained (on fair
Jurym. But has this method of trial pretences, and a specious preamble, as to never been attempted to be invaded or avoid divers mischiefs, &c.) whereby it justled out of practice?
was ordained, ~ That from thenceforth, Barr. It is but rarely that any have “ as well justices of assize, as justices of the arrived to so great a confidence: • For it is “ peace, upon a bare information for the ' a most dangerous thing to shake, or alter, king before them made, without any • any of the rules, or fundamental points “ finding or presentment by the verdict of
of the common law, which in truth are “ twelve men, should have full power and the main pillars, and supporters of the “ authority, by their discretions, to hear • fabric of the commonwealth ;' these are “ and determine all offences and conjudge Coke's wordst. Yet sometimes it “ tempts committed or done by any per