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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 Office in London, gave testimen of the pannel answered to their mony. names, but a tales being prayed, the following gentlemen were sworn :George Uppleby, Esq. Wm. Graburn, Esq. John Richardson, Esq. John Green, Esq. John Manners, Esq. John Eliott, Esq,

J. Ellis (Cherry Willingham)
Thomas Brown
Christopher Norwood
George Sanders
John Coulson
William Mossop.

MR. BROUGHAM (who had been brought from the York Circuit) then rose, and, on behalf of the defendant, addressed the Jury in a most eloquent speech of two hours and a quarter.

After some observations upon the ingenious and sophistical manner in which, he said, the advocate for the prosecution had tortured the tendency of the alledged libel and the intention of the author, he alluded to the late trial of the, Messrs. Hunts in London, for publishing the greater part of the article which was the subject of this 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 so 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 a 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 init read, could restrain his resentment, or contestible; and was it to be told to any hesitate in his 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 complained 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 the libel were proved by the production of a copy of the paper of the 24th of August; and the responsibility of the defendant, by some official regulations of the Stamp Office, of which John Booth,

in France," said Mr. Brougham, "every whisper is pestilential." The beneficial consequence of discussion, like that now complained of, was, that in attacking the flaws and blots of our establishments, it produced something near perfection; such

discussion was the inalienable right of Englishmen; and the most vital part of the Constitution under which they lived. In palliation of that part of the libel which in strong terms reprobated the military system of flogging, called it, a greater curse than the Inquisition, and the most heart-rending tyranny on this side hell, the Learned Council read passages in the publication of Sir Robert Wilson on the subject of military punishments, in which flogging was condemned in equally strong terms and when he sat down, a considerable clapping was set up in the gallery and extremities of the Court. The Judge, with great indignation, censured this indecency, and threatened one person, whom he selected from the crowd, with imprisenment for the offence.

MR. CLARKE, rising to reply to the defence, observed that a stronger proof of the evil tendency and influence of the publication of the Defendant could not be shown, than in the gross attempt which had been just made to overawe by popular clamour, and to beat down the free agency of the Jury. The defence made for the present Defendant, he said, was ever the sort of defence made for men of similar sentiments and conduct; the advocate who had defended the author of "The Rights of Man," had taken precisely the same ground, and pleaded the same rights. The allusion of the Learned Gentleman to the trial of the Messrs. Hunts, gave him (Mr. Clarke) a right he had not assumed before, of making those very persons witness against the Defendant; for although their will to say all they dare was not to be doubted, it was a powerful circumstance against the present defendant, that in copying the article from his paper for which they had been prosecuted, they had omitted the strongest parts of it, and thus shewn their own judgment of the libellous tendency of the original. The present prosecution, therefore, was for a libel infinitely stronger than those men had dared to publish; and yet the opinion of the eminent Judge who tried, the cause in which they were criminated was, that even their softened publication was a seditious and mischievous libel. Alluding to the liberty of the press, about which so much had been advanced, the Learned Gentleman said that too much was assumed under that mis-used phrase; in France and other countries the liberty of the press existed not, because licensers were appointed to Controul it; and this exemption from the

interference of the licensers in England, was what rightly was understood by the liberty of the press; it was not to be supposed that any man was to print whatever his seditious views, or a malignant disposition might suggest, and to call that the liberty of the press which he had a right to enjoy uninterruptedly-no such thing; but the press was a free agent to all, but every man must answer for his use of it; and it was the office of a Jury to stand between the liberty and the licentiousness of it.-As to the publication before the Court, read as it was, and was meant to be, in public-houses, by illiterate persons, incapable of deep thinking, it was not to be regarded in the same light as Sir Robert Wilson's publication (meant for the libraries of men of judgment); its bane was unab companied by any antidote, and might do inconceivable mischief. It was a strange way of encouraging the English soldier, to hold him out as a degraded slave, cut off from the pale of the Constitution, and below the level of his fellow subjects. Notwithstanding the boasted excellence of the system of Buonaparté, whose service the defendant so much admired, our soldiers never yet had met those of the Tyrant without proving the superiority of their courage, and their love for their officers; and if they were not reduced or seduced by such miscreants, as the author of the present libel, would still repel the enemy and save their country; but if they were to be insulted and taunted, or taught that they bled for those who treated them only with cruelty, whilst Buonaparté respected his soldiers and made their condition su▾ perior--the safety of the country was no longer to be regarded as certain.

The JUDGE, in his address to the Jury, observed, that they rad heard a very eloquent and powerful harangue in favour of the Defendant, and the Learned Coun sel had done his duty to his client; it was the duty of the Jury to consult the justice of the country. The Learned Counsel had asked, whether what was innocent at Westminster should be criminal at Lincoln? He (the Judge) did not wish to speak disrespectfully of Juries, but he might be permitted to say, that the Gentlemen he then addressed were not to be bound by the conduct of any other Jury, and he thought them at least as competent as that referred to at Westminster, to form a just judgment in the matter brought be fore them. "I am sorry," said Sir George Wood," to say, that we live in

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age when the liberty of the press is most scandalously abused, and libelling is become a "trade." Violent and inflammatory expressions, he added, were not to be mixed up with discussion, and to pass under the cloak of warm feeling for the public good. Let the Jury examine the publication before them, and see whether any good motive could reasonably be supposed to have actuated the writer. It was to be feared that many persons in this country were endeavouring to assist the enemy in his project of disgusting the people with institutions by which they were governed. With respect to the observations of the learned Gentleman (Mr. Brougham) on the subject of military flogging, he could not but think his speech of this day would have been better delivered in that hon. House of which he was a member; he hoped he should soon see him agitate the subject there if he did not, it must be inferred that the Gentleman did not mean as he said. The Learned Judge then alluded to the case of Mr. Finnerty, as an instance of the extraordinary temper for libelling which was prevalent, and the extravagant notions which prevailed about the right of saying and publishing whatever it was fancied could be justified. It was said that individuals had a right to discuss the very laws of the country; were we then to have a power beyond the Legislature itself? If such were the case, there was no security to our establishments; but the notion was not only highly dangerous, but in the highest degree unconstitutional. If the Jury could be of opinion that any thing but mischief was meant by the publication under their consideration, they would acquit the defendant; but he (the Judge), in the conscientious discharge of his duty, had no hesitation in saying, that he considered it a most wicked libel.

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The Jury withdrew for about ten minutes, and brought in a verdict of GUILTY.

THE ENGLISHMAN'S RIGHT :” A Dialogue between a Barrister at Law and a Juryman; plainly setting forth, I. The Antiquity, II. The Excellent Designed Use, III. The Office, and Just Privileges, OFJURIES, by the Law of England. By SIR JOHN HAWLES, Solicitor-General to King William III.

Buister. My old Client ! a good morning you; whither so fast? you geem intent on some important affair.

Juryman. Worthy Sir! I am glad to see you thus opportunely, there being scarce any person that I could at this time rather have wished to meet with.

Barr. I shall esteem myself happy, if in any thing I can serve you.The business, I pray?

Jurym. I am summoned to appear upon a Jury, and was just going to try if I could get off. Now I doubt not but you can put me into the best way to obtain that favour.

Barr. It is probable I could; but first let me know the reasons why you desire to decline that service.

Jurym. You know, Sir, there is something of trouble and loss of time in it :→→→→ and men's lives, liberties, and estates (which depend upon a jury's guilty or not guilty, for the plaintiff, or for the defendant) are weighty things. I would not wrong my conscience for a world, nor be accessary to any man's ruin. There are others better skilled in such matters. I have ever so loved peace, that I have forborne going to law (as you well know) many times, though it hath been much to my loss.

Barr. I commend your tenderness and modesty; yet must tell you, these are but general and weak excuses.

As for your time and trouble, it is not much; and, however, can it be better spent than in doing justice, and serving your country? To withdraw yourself in such cases, is a kind of sacrilege, a robbing of the public of those duties which you justly owe it. The more peaceable man you have been, the more fit you are; for the office of a Juryman is, conscientiously to judge his neighbour; and needs no more law than is easily learnt to direct him therein. I look upon you therefore as a man well qualified with estate, discretion, and integrity; and if all such as you should use private means to avoid it, how would the king and country be honestly served? At that rate we should have none but fools or knaves entrusted in this grand concern, on which (as you well observe) the lives, liberties, and estates of all England depend.

Your tenderness not to be accessary to any man's being wronged or ruined, is (as I said) much to be commended. But may you not incur it unawares, by seeking thus to avoid it? Pilate was not innocent because he washed his hands, and said, He would have nothing to do with the blood of that just one.' There are faults

of omission as well as commission. When you are legally called to try such a cause, if you shall shuffle out yourself, and thereby persons perhaps less conscientious happen to be made use of, and so a villain escapes justice, or an innocent man is ruined, by a prepossessed or negligent verdict; can you think yourself in such a case wholly blameless? Qui non prohibit cum potest, ⚫ jubet : That man abets an evil, who prevents it not, when it is in his power.' Nec caret scrupulo societatis occulte, qui • evidenter facinori desinit obviare. Nor can he escape the suspicion of being a se'cret accomplice, who evidently declines the prevention of an atrocious

'crime.'

Jurym. Truly, I think a man is bound to do all the good he can; especially when he is lawfully called to it. But there sometimes happen nice cases, wherein it may be difficult to discharge one's conscience without incurring the displeasure of the court, and thence trouble and damage may arise.

Burr. That is but a vain and needless fear. For as the jurors privileges (and every Englishman's in and by them) are very considerable; so the laws have no less providently guarded them against invasion or usurpation. So that there needs no more than, first understanding to know your duty; and, in the next place, courage and resolution to practise it with impartiality and integrity, free from accursed bribery and malice, or (what is full as bad in the end) base and servile fear.

Jurym. I am satisfied, that as it is for the advantage and honour of the public, that men of understanding, substance and honesty, should be employed to serve on juries, that justice and right may fairly be administered; so it is their own interest, when called thereunto, readily to bestow their attendance and service, to prevent ill precedents from men otherwise qualified; which may by degrees fatally, though insensibly, undermine our just birth-rights, and perhaps fall heavy one day upon us, or our posterity. But, for my own part, I am fearful lest I should suffer through my ignorance of the duty and office of a juryman; and, therefore, on that account principally it is, that I desire to be excused in my appearance; which, if I understood but so well as I hope many others do, I would with all my heart attend the service.

Barr. You speak honestly, and like an Englishman. But if that be all your cause

of scruple, it may soon be removed, if you will but give yourself a very little trouble of enquiry into the necessary provisions of the law of Englaad relating to this matter. Jurym. There is nothing (of a temporal concern) that I would more gladly be informed in; because I am satisfied, it is very expedient to be generally known. And first, I would learn how long trials by juries have been used in this nation*.

Barr. Even time out of mind;-so long, that our best historians cannot date the original of the institution; being indeed cotemporary with the nation itself, or in use as soon as the people were reduced to any form of civil government, and administration of justice. Nor have the several conquests or revolutions, the mixtures of foreigners, or the mutual feuds of the natives, at any time, been able to suppress or overthrow it. For,

1. That juries (the thing in effect and substance, tho' perhaps not just the number of twelve men) were in use among the Britons, (the first inhabitants of this island) appears by the ancient monuments and writings of that nation; attesting that their Freeholders had always a share in all trials and determinations of differences.

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2. Most certain it is, that they were practised by the Saxons †, and were then the only courts, or at least an essential, and the greater part, of all courts of judicature: for so (to omit a multitude of other instances) we find in king Ethelred's Laws, In singulis Centuriis, &c.' every hundred let there be a court, and let twelve ancient freemen, together with the Lord, (or rather, according to the Saxon, the Greve, i. e. the chief of 'ficer amongst them) be sworn, that they 'will not condemn any person that is innocent, nor acquit any one that is guilty.'

3. When the Normans came in, William, tho' commonly called the Conqueror, was so far from abrogating this privilege of Juries, that in the fourth year of his

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reign, he confirmed all king Edward the Confessor's laws, and the ancient customs of the kingdom, whereof this was an essential and most material part. Nay, he made use of a Jury, chosen in every county, to report and certify on their oaths what those laws and customs were; as appears in the proem of such his confirmation.

4. Afterwards when the Great Charter, commonly called Magna Charta, (which is nothing else than a recital, confirmation, and corroboration of our ancient English liberties) was made and put under the great seal of England, in the ninth year of king Henry the Third, (which was anno Domini 1225) then was this privilege of trials by Juries in an especial manner confirmed and established; as in the fourteenth chapter, That no amerce'ments shall be assessed, but by the oath of good and honest men of the vicinage.' And more fully in that golden nine-andtwentieth chapter- No freeman shall be taken or imprisoned, nor be disseised of his freehold or liberties, or free customs, ' or be out-lawed, or exiled, or any other way destroyed, nor shall we pass upon him, or condemn him, but by the lawful 'judgment of his peers,' &c. Which Grand Charter having been confirmed by above thirty acts of parliament, the said right of Juries thereby, and by constant usage, and common custom of England, which is the common law, is brought down to us as our undoubted birth-right, and the best inheritance of every Englishman. For as that famous lawyer, chief justice Coke, in the words of Cicero, excellently avers, Major hæreditas venit unicuique nos ‹trum a jure & legibus, quam a parentibus.' It is a greater inheritance, and more to be ' valued, which we derive from the funda'mental constitution and laws of our coun'try, than that which comes to us from our respective parents:' for without the former, we have no claim to the latter.

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Jurym. But has this method of trial never been attempted to be invaded or justled out of practice?

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has been endeavoured; but so sacred and valuable was the institution in the eyes of our ancestors, and so tenacious were they of their privileges, and zealous to maintain, and preserve such a vital part of their birth-right and freedom; that no such attempts could ever prove effectual, but always ended with the shame and severe punishment of the rash undertakers. For example,

1. Andrew Horn, an eminent lawyer, in his book, entitled The Mirror of Justices, (written in the reign of king Edward 1, now near 400 years ago) in the fifth chapter, and first section, records, That the rehowed Saxon king Alfred caused four and forty justices to be hanged in one year, as murderers, for their false judgments. And there recites their particular crimes, most of them being in one kind or other infringements, violations, and encroachments of and upon the rights and privileges of Juries. Amongst the rest, that worthy author tells us, he hanged one justice Cadwine, because he judged one Hackwy to death without the consent of all the Jurors; for whereas he stood upon his Jury of twelve men, because three of them would have saved him, this Cadwine removed those three, and put others in their room on the Jury, against the said Hackwy's consent. Where we may observe, that though at last twelve men did give a verdict against him, yet, those, so put upon him, were not accounted his Jurors, by reason all, or any of them, who were first sworn to try him, could not (by law) be removed, and others put in their stead: And that such illegal alteration was then adjudged a capital crime, and forthwith the said Cadwine was hanged.

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2. A second instance I shall give you in the words of the lord chief justice Coke* : Against this ancient and fundamental law, and in the face thereof, there was in the eleventh year of king Henry VII. cap. 3. an act of Parliament obtained (on fair pretences, and a specious preamble, as to avoid divers mischiefs, &c.) whereby it '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

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2 Institut. fol. 56. + Ibid. p. 74.

*Coke 2 part of Inst. fol. 51.

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