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 legislative has precluded any lawyer from being able to dictate to you. The Solicitor-General cannot now venture to promulgate the slavish doctrine 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 is to say whether the prisoner be guilty or not; and could a juror find a true verdict, who declared a man guilty upon evidence of some act, perhaps praiseworthy, but clearly void of evil design 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 Solicitor-General’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 a 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 a man 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 partisan!
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 a 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 belongs to you.
I am then warranted in directing 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 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 time 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 the principle of the constitution.
But in the ignorance of the blessing 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 rumors. This law proves two things,—first, that before this statute, it was not considered a crime in law to spread even a false rumor, 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 regret the strange propensity of judges, to construe the law in favor of tyranny, and against liberty; for servile and corrupt judges soon decided that upon the construction of this law it was immaterial whether the rumors were true or false, and that a law made to punish false rumors, was equally applicable to the true.
This, gentlemen, is called construction; it is just that which in more recent times, and of inevitable consequence from purer motives, has converted “pretence” into “purpose.”
When the art of printing was invented, its value to every sufferer, its terror to every oppressor, was soon obvious, and means were speedily adopted to prevent its salutary effects. The Star-Chamber—the odious Star-Chamber—was either created, or, at least, enlarged and brought into activity. Its proceedings were arbitrary, its decisions were oppressive, and injustice and tyranny were formed into a system. To describe it to you in one sentence, it was a prematurely packed jury. Perhaps that description does not shock you much. Let me report one of its decisions, which will, I think, make its horrors more sensible to you—it is a ludicrous as well as a melancholy instance.