« PreviousContinue »
miss from their minds the circumstances of the former case, and to confine their judgement entirely to the case of your petitioner; but soon afterwards told them, that if they were satisfied with the evidence of the publication of the supposed libel by your petitioner, he could not see how they could, consistently with their former verdict, form a different judgement in the case of your petitioner from that which they had formed in the case of the said William Vamplew.
“That the Jury, after deliberating nearly an hour, delivered a verdict of Guilty, but recommended your petitioner to the mercy of the Court; and that your petitioner was sentenced to six months' imprisonment, and ordered at the end of that time to enter into recognizance for his good behaviour.
"Now, your petitioner himself submits to your honourable house, that it is repugnant to the spirit of the law of England, that the lives, liberties, and property of the subjects of this realm should be endangered by the possibility of their being exposed to the decision of a prejudiced and partial Jury. That it is a principle in the administration of justice in this country, that a juror must stand indifferent as he stands uns worn; that it is said by Lord Chief Justice Coke, that if a juror hath given a former verdict upon the same title or matter (though between other persons), it is a good cause of challenge.'
"That the duty of a Jury in cases of libel is to decide upon the whole matter put in issue upon the indictment, and that they are to judge of the nature and character of the supposed libel, as well as of the fact of publication.
"That your petitioner, therefore, submits that the Jury by whom your petitioner was tried, having previously expressed an opinion upon their oath on the nature and character of the supposed libel, charged to have been published by your petitioner (which was, in fact, the whole matter to be tried in the case of your petitioner, as your petitioner did not dispute the fact of publication,) were not an indifferent or impartial Jury, by whom your petitioner by law ought to have been tried.
"That your petitioner is aware that, according to strict legal form, your petitioner should have enforced his objection to the Jury at the trial, by way of challenge; but, besides that your petitioner from his inability previously to procure a list of the Jury was not and could not be prepared to put in and prove his challenges, and that such a proceeding would have been attended with considerable expense, which your petitioner was totally unable to bear, your petitioner is advised that challenges in cases of misdemeanour are now rarely resorted to, and that their necessity has been superseded by a more liberal as well as more convenient practice-namely, that wherever a fair and reasonable objection to a juryman is stated by either party, the Court, acting in its equitable discretion upon the principle that an unfair trial is no trial at all, and that a Jury ought to be superior to all exception, discharges the exceptionable juryman, and calls another who is not liable to objection.
"That your petitioner therefore humbly submits, that the objection to the Jury in your petitioner's case was fair, reasonable, and lawful; that there was cause of challenge shown; that the Jury who tried the former case were not fully competent to try the case of your petitioner; and that the language of the Common Sergeant, before the indictment was read, or the Jury sworn, in declaring, in the hearing of the Jury, that the supposed libel for the publication of which your petitioner was about to be tried was an infamous libel, and that no Jury could find a different verdict upon it from that which had been found in the case of William Vamplew,' must have produced an impression and prejudice on the minds of the Jury greatly injurious to your petitioner.
"That your petitioner's counsel, not having heard the address of the prosecutor's counsel in the case of William Vamplew, could not possibly answer or controvert any thing contained in it.
"That the said William Vamplew was not defended by counsel, and therefore it is highly probable that much was addressed to the Jury which influenced their judgement in his case, and which might have been obviated in the case of your petitioner, if his counsel had had any opportunity so to do.
"Upon the whole, your petitioner begs leave to state most respectfully to your honourable house, that your petitioner has reason to believe, that if he had been tried by a fair, impartial, and indifferent Jury, he should have been ac quitted of the misdemeanour charged upon him by the said indictment; that the Jury appeared to be greatly impressed by the arguments of your petitioner's counsel, inasmuch as they deliberated much longer upon the verdict than in the case of William Vamplew, and recommended your petitioner to the mercy of the Court. That your petitioner has been informed, and believes, that several of the Jury by whom your petitioner was tried, have, since the trial, declared, ⚫ that they felt themselves to be in a most irksome and difficult situation in having a second time to try the merits of a question upon which they had so lately before pronounced a solemn opinion; that they considered themselves quite incompetent to form a free and unprejudiced judgement; and that, if they had been aware of any legal means of relieving themselves, they would not have tried the cause.' That your petitioner is advised that he has no opportunity of applying for a new trial, and has therefore no means of relieving himself from the effects of an unfair and unjust conviction, but by throwing himself upon the favourable consideration of your honourable house; praying that it will adopt such measures for the relief of your petitioner as to your honourable house may seem just and right.
"And your petitioner shall ever pray,
The Solicitor General did not oppose the motion of his honourable and learned friend (Dr. Lushington), but felt called upon to rise by the appeal which had been made to himself and to his honourable and learned friend (the] Attorneygeneral) by his side. He presumed, from what had passed, that the honourable and learned member opposite (Dr. Lushington) had not read the libel which was the subject of prosecution. The Solicitor General then entered into a long detail of the nature of the work prosecuted, and the history of Mr. Carlile's family and trade; and then said that with the Society by which this prosecution had been instituted he had nothing to do; of it he had nothing to say. All he could say was, that whatever they were, individuals or societies, it was their duty when in possession of evidence against such works, to bring it forward. With respect, then, to the proceedings actually taken upon the trial, it had certainly been objected by the counsel for the defendant, that the Jury called in the case of Barkley had found other verdicts against other defendants upon the same libel; but it had been put to the defendant's counsel, and distinctly so put, that if the Jury was really incompetent, he might challenge them individually, or make his challenge to the array; and the learned counsel was compelled in his turn to admit that the fact which he complained of did not furnish a legal cause of challenge. The learned counsel for the defendant had not been taken by surprise upon that point; he had had full opportunity of considering the legal rights of his client; and when he admitted distinctly that he had no ground for challenge, the Judge had no power to stop the trial without the consent of the counsel for the prosecution. The learned gentleman, to prove the dangerous tendency of the libel, proceeded to read an extract from it, in which all religion was declared to be the mere invention of priestcraft. Could any man, he would ask, much more could any twelve men on their oaths, entertain a doubt of the nature of such a publication? No doubt could possibly be entertained of its aim and object. The question in this case was, whether the individual charged was concerned in the publication of the libel. That was not the question on which the Jury had previously decided; and therefore they came to its consideration with free and unbiassed minds. But his learned friend had another objection, which applied to the sentence of the learned Judge. Now the fact was, that the learned Judge had not sentenced the defendant to hard labour; and if the person whose duty it ultimately was to carry the sentence of the learned Judge into execution had inflicted punishment of a different character from that contemplated by the Court, the party thus treated might have
full and ample redress in a court of justice. He, however, believed that his learned friend laboured under a mistake; it would be found that the petitioner was not undergoing the discipline of hard labour. When an individual who was sent to a house of correction demanded the usual allowance of the prison, it was customary to require that he should labour moderately, in order to prevent his becoming a burden to the public; and when the fact was investigated, it would turn out that this individual had been only subjected to that species of labour which was authorized by act of parliament. (Hear.) He knew that in another case the person convicted had been sentenced to hard labour, and was called on to give his own security (not that of other persons, as his learned friend had stated) for his good behaviour for life. His learned friend would, however, find that there was not a sentence on a person found guilty of blasphemy, of which the giving security for good behaviour did not form a part. He would not certainly object to Sir Matthew Hale as an unconstitutional Judge, or as an individual who was deficient in humanity; and yet, in a case of blasphemy tried before him, he sentenced the defendant not only to give his own security, but to give sureties for his good behaviour during his life. In the case of the "King v. Williams," in Lord Kenyon's time (and the present libel was in part a copy of that for which the defendant was then tried), the same course was pursued. Not only was the defendant obliged to give his own security for his good behaviour for life, but he was likewise obliged to find sureties. In the days of Lord Mansfield a similar case occurred; and if his learned friend had sifted and examined this subject, he would have discovered that there was not an instance where an individual was found guilty of the crime of blasphemy, in which he had not been called on to give security for good behaviour during his life. He thought it was due to the learned Judge to repel the statement of his learned friend. He hoped he had proceeded in the way his learned friend wished, coolly and dispassionately, without manifesting any desire to follow the tone of declamation which his learned friend had adopted. (Hear.)
Dr. Lushington said, his learned friend had not answered his objection to the way in which the petitioner had been dealt with. It was no answer to his argument to say, that the publication was of a very dangerous character. He had contended, and he would still contend, that in proportion as the matter of accusation was atrocious, there was the more reason that the individual accused should have a fair trial. He did not stand up to justify the publication-he had always opposed himself to the doctrines which it contained; but he felt himself bound to look to the mode and manner in which the trial was conducted; and having considered it, he stated what he felt-that the defendant had not received a fair trial. His learned friend had not met his argument, but contented himself with stating that no two individuals could entertain a doubt as to the nature of the libel. That was not the point at issue; and as his learned friend had not answered the matter of complaint, he could not suppose that it was his opinion, nor the opinion of that house, that it was fair for a Jury, who had already decided on the nature of a publication, and who must have a bias on the subject, to try another individual on precisely the same charge. It was not true that it had been put to the counsel for the defendant, to take his objection in the form of a challenge, and that he had declined so to do. On the contrary, his objection was met by a broad denial that there was ground for challenge. As to the punishment of hard labour, whether the prisoner was undergoing it or not, the fact remained the same, that it was added to his sentence, not having been originally pronounced, and that he was now liable to have it inflicted.
The Petition was received, and ordered to be printed.
PRINTED BY R. AND A. TAYLOR,
REPORT OF THE TRIAL
INDICTED AT THE INSTANCE OF THE
"A MAN WITH NAME UNKNOWN,"
FOR PUBTISHING AN ALLEDGED
Blasphemous and Seditious Libel,
AS ONE OF
THE SHOPMEN OF MR. CARLILE;
WHICH TOOK PLACE BEFORE
MR. COMMON SERGEANT DENMAN,
AND A COMMON JURY,
AT THE OLD BAILEY SESSIONS HOUSE,
NARRATIVE OF THE PROCEEDINGS AGAINST THE DEFENDANT
TO WHICH IS ATTACHED, THE
TRIAL OF JOSEPH RHODES,
UNDER THE NAME OF WM. HOLMES,
AS FORCED UPON HIM,
FOR PUBLISHING A COPY OF THE SAME PAMPHLET.
PRINTED BY R. CARLILE, 55, FLEET STREET,
AND PUBLISHED AT THE KORAN SOCIETY'S OFFICE, 5, water
LANE, FLEET STREET.
Price One Shilling.