Mr. Justice Best.—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 exercise
their 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 anything
which 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 the
jury 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 another
it 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. Justice Best said, 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. Justice Best.—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.