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ceived it would be a mockery of justice, for his client to defend himself in the absence of his witnesses, and since the court would not give him the opportunity of setting those proceedings on the grounds he had mentioned, he never would be a party to a defence of him in this unequal contest. He therefore threw up his briefs. On consulting, however, with Mr. Magee, Mr. O'Connell shortly afterwards stated, that his client was of a different opinion from his counsel, and therefore he had instructed them to appear for him; they were bound to abide by his instructions, and therefore they resumed his defence.
We shall not follow the Attorney General through his elaborate speech on stating the case to the Jury, as the spirit of it, may be easily conjectured, being a bigh eulogium on the merits of the Duke of Richmond, and a corresponding censure on the proceedings of the Catholic board, and particularly of those individuals, who were instrumental to the passing of the libellous resolutions.
We shall however give the outline of Mr. O'Connell's speech, copies of which were sent to the French and Spanish Governments, and ten thousand copies were printed to be circulated at a cheap rate.
After a preface in vindication of the Catholic Board from the charges of the Attorney General, Mr. O'Connell proceeded thus :
“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, if you thought of acquitting Mr. Magee under the pretence of not believing that evidence. I will not 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 Lenox, 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 honour 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. It contains this passage, which I read from the indictment:
“ Had he remained what he was when 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 rancour : the supporter, and not the tool of an Administration; a mistaken politician, perhaps ; but an honourable man, and a respectable soldier."
“ The Duke is here in this libel, my Lord,—in this libel, gentlemen of the Jury, the Duke of Richmond is called an honourable 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 honourable 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 remark, 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 publication 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 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 indict
ment 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 on the heart, and blast the prospects of a private family, --and that the subject matter for your decision is characterised 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 Legislature has precluded any lawyer from being able to dictate to you. The Solicitor General cannot now venture to promulgate the slavish docrine, 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 are to say, whether the prisoner be guilty or not; and could a juror find a true verdict, who declares a man guilty upon evidence of some act, perhaps, praiseworthy, but clearly void of evil desigu, 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 Solicitorgeneral'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 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 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 partizan. 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 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, belong to you.
I am, then, warranted in di
recting 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 a 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 times 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 a principle of the constitution. But, in the ignorance of the blessings 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 rumours. This law proves two things; first, that, before this statute, it was not considered a crime in law, to spread even a false rumour, 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 to regret the strange propensity of Judges to construe the law in favour of tyranny, and against liberty; for servile and corrupt Judges soon decided, that, upon the construction of this law, it was immaterial whether the rumours were true or false; and that a law, made to punish false rumours, was equally