And now, gentlemen, I ask you to give me your verdict for the defendant. I make no attempt to move your compassion. I will not urge you to consider that the defendant is a woman, and unable, from the tenderness of her sex, 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 Constitutional Association, as (by the figure, I suppose, oflucus a non lucendo) they entitle 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 Constitution 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 willhave 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 instituted 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. JusticeBest.—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 exercisetheir 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 association by which the prosecution had been instituted. For his own part he did not know by whom it had been instituted 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 association. 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 passed 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 principally indebted for its happiness; and God forbid that he should do anythingwhich 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 assassination. 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 passions; 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 passions, and the other to the understanding. If thejury were of opinion that this pamphlet was an address to the people of the country, to induce them by legal and constitutional 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 passions (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 passages 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 Constitution, &c.” There was in the country a constitution not like the Spanish Constitution, created in a day; but matured by the sense of ages, altering and adapting it to times and circumstances 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 passage, 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 anotherit 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 circumstances. 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 assured of your numbers, and you can overpower the Government.” There could be no doubt that these passages 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 assure 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. JusticeBestsaid, 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. JusticeBest.—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. JusticeBest.—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. JusticeBest.—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.
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. JusticeHolroydappeared 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 aNoli Prosequiand discharge the jury without a verdict.
A gentleman in black (said to be Mr. Longueville Clarke, one of the Committee of the ConstitutionalAssociation, and one of theState 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 Constitutional Committee; andI willhave 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 passage to the Court were loudly and rapturously cheered by the bystanders. Having answered to their names,
Mr. JusticeHolroydaddressed 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 passage through the Hall.
Thus ended the first attempt of the Constitutional Association, 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 noble 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 Passage, & 63, High Holborn.