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British justice should resemble that attribute of Heaven which looks not to the outward .act, but to the principle from which it proceeds, to the intention by which it is directed.
In summing up for the Crown, I would never wish to carry the principles of liberty farther than Mr. Attorney-General has done when he asserted the right of political discussion, and desired you only to look to the temper and spirit with which such discussion was made; when he asserted, that it was right to expose abuses, to complain of grievances, provided always that it were done with an honest and fair intention. Upon this principle, I appeal to you whether this advertisement might not be written with a bona fide intention, and inserted among a thousand others, without any seditious purpose, or desire to disturb the public peace. .
Undoubtedly our first duty is the love of our country; but this love of our country does not consist in servile attachment and blind adulation to authority. It was not so that our ancestors loved their country; because they loved it, they sought to discover the defects of its government; because they loved it, they endeavored to apply the remedy. They regarded the constitution not as slaves, with a constrained and involuntary homage, but they loved it with the generous and enlightened ardor of free men. Their attachment was founded upon a conviction of its excellence, and they secured its permanence by freeing it from blemish. Such was the love of our ancestors for the constitution, and their posterity surely do not become criminal by emulating their example. I appeal to you, whether the abuses stated in this paper
do not exist in the constitution, and whether their existence has not been admitted by all parties, both by the friends and enemies of reform. Both, I have no doubt, are honest in their opinions, and God forbid that honest opinion in either party, should ever become a crime. In their opinion, the necessity of a reform, as the best and perhaps the only remedy of the abuses of the constitution, the writers of this paper coincide with the most eminent and enlightened men. On this ground I leave the question, secure that your verdict will be agreeable to the dictates of your consciences, and be directed by a sound and unbiased judgment.
THE ATTORNEY-GENERAL'S REPLY.
There are some propositions which my learned friend, Mr. Erskine, has brought forward for the defendants, which not only I do not mean to dispute, as an officer of the Crown, carrying on this prosecution, but which I will also admit to their full extent. Every individual is certainly in a considerable degree interested in this prosecution ; at the same time I must observe, that I should have, in my own opinion, betrayed my duty to the Crown, if I had not brought this subject for the consideration of a jury. Considering, however, every individual as under my protection, I think it a duty which I owe to the defendants, to acknowledge, that in no one instance before this time were they brought to the bar of any court, to answer for any offence either against government or a private individual. This is the only solitary instance in which they have given occasion for such a charge to be brought against them. In everything, therefore, that I know of the defendants, you are to take them as men standing perfectly free from any imputation but the present; and I will also say, from
all I have ever heard of the defendants, and from all I have ever observed of their morals in the conduct of their paper, I honestly and candidly believe them to be men incapable of wilfully publishing any slander on individuals, or of prostituting their paper to defamation or indecency. But my learned friend, Mr. Erskine, has stated some points which my duty calls upon me to take notice of. I bound myself by the contents of the paper only; I I did not know the author of it. I did not know any society from which the paper purported to have originated. It is said to be the production of a man of great abilities; I do not know that he is the author; at any rate, this is the first time I ever heard of that circumstance. There is one fact on which we are all agreed, that the paper itself was dated on the 16th of July, 1792, and that it appeared in the Morning Chronicle on the 25th of December, 1792. It was then presented to the public with a variety of other advertisements, which it will be
and for that purpose you will carry out the
find it necessary to withdraw, in order to see what the intent of the defendants was in publishing this paper. A bill, I also admit, passed into a law, the last session of Parliament, upon the subject of libels; but it would be exceedingly unfortunate for the people of this country if my learned friend and myself were to be allowed, to
give evidence in a court of justice of what was our intention in passing that bill. The bill has now become a solemn act of the legislature, and must speak for itself by its contents; but, however, it has, in my opinion, done what it was intended to do. It refers the question of guilt to the jury in cases of libels, precisely as in every other criminal case. My learned friend has insisted that criminal intention is matter of fact, mixed with matter of law. I agree to this description; but then the law says, that such and such facts are evidence of such and such intentions. Treason, for instance, depends upon intention; but such and such acts are evidence of a criminal intention ; and if the jury entertain any
upon any part of the charge, his lordship will only do his duty by giving them his advice and direction, which will be, that he who does such and such things, if he does them with a criminal intention, is amenable to the law, and that such and such acts are evidence of the criminal intention; and then the jury must decide upon that evidence, and upon that advice, whether the defendant was, or was not guilty. So says Mr. Erskine, and so I say; for it is a matter of plain common sense, coming home to the understanding of every man. Mr. Erskine has contended that the jury must not draw the inference of criminal intention from the mere fact of publishing a paper. Certainly not; but they may draw the inference of