Mr. Kelly. No, I have not the book here, my Lord; but I remember the case.
(The Report was produced.)
Mr. Justice Maule. In the Report in the State Trials of the case of Mr. Horne Tooke, to which you have referred, it appears that he claimed as a matter of right, the being permitted to sit near his counsel. The Lord Chief Justice says, “That is an indulgence which I have hardly ever known given to any person in your situation.” The Lord Chief Justice at that time was Lord Chief Justice Eyre. Mr. Horne Tooke says, “I am perfectly aware that it is unusual, but I beg your Lordship to observe that every thing in the course of these proceedings is likewise unusual. I beg your Lordship to consider that the proceedings upon the last trial will fill, as I am well informed by the short-hand writer, 1,600 close printed octavo pages. That trial lasted nine days; eight days trial, and one day between. The nature of the indictment is such, that it has been impossible for me to guess what would come before your Lordship: it has been equally impossible for me to instruct my counsel; they cannot know the passages of my life, and from what I have seen on the last trial the whole passages of my life, and those which are not passages of my life, but are only imputed to me, will be brought before you: how is it possible for my counsel to know those particular facts which are only known to myself? If ever there was a case where indulgence was fit to be granted, it is this; yet your Lordship will forgive me for saying that I claim it as my right by law, and do not ask it as an indulgence.” After more argument to that effect, the Chief Justice says, “Mr. Tooke, you have been furnished with that which the law considers as the necessary means to enable you to make your defence; you have had counsel assigned to you; they have had, or might have had, access to you at all seasonable hours; that is what the law allows you. You have taught the Court not to use the word indulgence, and you have pointed out to them their duty, that they are to give no indulgence. I am apprehensive that it would be considered as an extraordinary indulgence if the Court were now to do that which you ask, because that is not done to other prisoners; it was not done to another prisoner who went immediately before you, who had the same stake that you have, nor is it done to all other prisoners who do come to this bar, and therefore the Court are not permitted without doing injustice to others to grant that which you ask upon the ground upon which you ask it.” Then he goes on—“But you have mentioned another circumstance extremely material, and which will, in my mind, warrant the Court to do that which you think they ought not to do, to indulge the prisoner. You have stated the condition of your health, and that in the place in which you stand your health will suffer: the Court has no desire to put you under any difficulties; they wish that you should be enabled to make your defence in the best way imaginable; and if the situation in which you stand is really likely to be prejudicial to your health, and therefore likely to disable you from making your defence in the manner you might otherwise make it, I shall put it to my Lords to consider, whether you may not be indulged with that which you have now asked.
“Mr. Tooke—The Court will forgive me only for saying, that if, on the footing of indulgence, the Court shall not think fit to grant what I ask, I hope I shall not, after that decision, be barred from my argument upon it as a point of law.” Then the Chief Justice says—“You must state your whole case upon any matter that arises at once: the proposing it first in one shape, and then going on to state it in another, is carrying us on without end; if you mean to argue this as a point of law to be sure we are ready to hear you.” Mr. Tooke: “I beg your Lordship not to misunderstand me; I did so mention it at first, and did ask it not as an indulgence, if your Lordship will be pleased to recollect: I did mention, that if there were objections I should then argue it in point of law, thinking that I am well entitled to it by the principles, by the letter, and by the practice of the law: I did not mean to change my ground; I beg your Lordship will be pleased to recollect I excluded the idea of indulgence: I did not mean to take first one ground and then another, but I thought it possible I might save the time of the Court, therefore I left it to your Lordship to collect the sense of the Court even upon the score of health, which your Lordship mentions, to save time, and not to waste the time. I understood very well that after a decision I should not be permitted to argue it, and therefore I mentioned that, but not to change my ground; and therefore if your Lordship should find upon the score of what you call indulgence, I suppose in a different view of the word that I am accustomed to take, I rather understand that your Lordship means you are willing to grant it me upon the score of my health, in that case I do not desire to waste the time of the Court; provided it is granted to me, I am very happy and shall be glad to avoid the argument, if your Lordship will be only pleased to give me some intimation of your opinion.” The Chief Justice, after consulting with the other judges, says:—“Mr. Horne Tooke, I have consulted my Lords the Judges who are present, they feel themselves extremely disposed to indulge you on the score of your health; they think that it is a distinction which may authorise them to do that in your case which is not done in other cases in common; they cannot lay down a rule for you which they would not lay down for any other man living, but if your case is distinguishable from the case of others that does permit them to give you that indulgence which you now ask”—Then Mr. Tooke says:—“I am very much obliged to your Lordships, and am very well content to accept it as indulgence or any other thing. Undoubtedly it is very acceptable to me, and very necessary for my health; I am glad to save the time of the Court.” On that ground, after having attempted it on the ground I have stated, he was removed to the inner bar.
Now that case seems, I think, to establish that it is, in the judgment of the several judges who were here upon that occasion, a thing which ought not to be done unless under very special circumstances, and we ought to be on our guard against doing that which might have the appearance of treating one kind of felony, and one rank or class of persons, in a different way from another; or of intimating that, because a person is somewhat of a superior rank, he is to be treated in a different manner; and we are anxious not to do it in the way of favour or on any such ground as that, and we feel that we cannot grant this on the ground on which you put it. This seems to my learned brother and myself to be the same in fact as Mr. Tooke’s, though not quite so strong—a desire in the party to communicate with his counsel, which will exist in every case. It was not thought sufficient in that case: he was indulged only on the ground that his health was such that it would suffer from his remaining in the ordinary place: and here no such cause is alleged.
Mr. Kelly. It is my duty to acquiesce in the decision of your Lordships. I beg to say I did not put this on any distinction of rank.
Mr. Justice Maule. No; that we understand perfectly, and the Court is disposed not so to put it. I said, that lest there should be a feeling, though it was not put so, that there might be a distinction drawn between this and any other case on that ground. What other difference is there between Mr. Zulueta, charged with felony in slave trading, and any other person coming to that dock, charged with any felony of any other character, requiring wealth and capital to carry it on?
Mr. Kelly. I did not desire, in the least, to press it on that ground; on the contrary, I disclaimed it: I mentioned that which was the principal ground—that the documents are all in a foreign language; and that which I submitted to your Lordship was entirely my own suggestion, and not Mr. Zulueta’s: I acquiesced at once, as I ought, in your Lordship’s decision.
Mr. Justice Maule. The Court is so constructed that you can approach Mr. Zulueta, though he cannot approach you.
(The Defendant took his place within the Bar, and was arraigned on the Indictment for Felony.)