Part 2

The Attorney-General--“_this wisest and best of men_,” as his colleague, the Solicitor-General, called him in his presence--the Attorney-General next boasted of his triumph over Pope and Popery--“I put down the Catholic Committee; I will put down, at my good time, the Catholic Board.” This boast is partly historical, partly prophetical. He was wrong in his history--he is quite mistaken in his prophecy. He did not put down the Catholic Committee--we gave up that name the moment that it was confessedly avowed that this sapient Attorney-General’s polemico-legal controversy dwindled into a mere dispute about words. He told us that in the English language “pretence” means “purpose”; had it been French and not English, we might have been inclined to respect his judgment, but in point of English we venture to differ with him; we told him “purpose,” good Mr. Attorney-General, is just the reverse of “pretence.” The quarrel grew warm and animated; we appealed to common sense, to the grammar, and to the dictionary; common sense, grammar, and the dictionary decided in our favor. He brought his appeal to this court, your lordship, and your brethren unanimously decided that, in point of law--mark, mark, gentlemen of the jury, the sublime wisdom of law--the court decided that, in point of law, _“pretence” does mean “purpose”_!

Fully contented with this very reasonable and more satisfactory decision, there still remained a matter of fact between us: the Attorney-General charged us with being representatives; we denied all representation. He had two witnesses to prove the fact for him; they swore to it one way at one trial, and directly the other way at the next. An honorable, intelligent, and enlightened jury disbelieved those witnesses at the first trial--matters were better managed at the second trial--the jury were better _arranged_. I speak delicately, gentlemen; the jury were better arranged, as the witnesses were better informed; and, accordingly, there was one verdict for us on the representative question, and one verdict against us.

You know the jury that found for us; you know that it was Sir Charles Saxton’s Castle-list jury that found against us. Well, the consequence was that, thus encouraged, Mr. Attorney-General proceeded to force. We abhorred tumult, and were weary of litigation; we new-modelled the agents and managers of the Catholic petitions; we formed an assembly, respecting which there could not be a shadow of pretext for calling it a representative body. We disclaimed representation; and we rendered it impossible, even for the virulence of the most malignant law-officer living, to employ the Convention Act against us--that, even upon the Attorney-General’s own construction, requires representation as an ingredient in the offence it prohibits. He cannot possibly call us representatives; we are the individual servants of the public, whose business we do gratuitously but zealously. Our cause has advanced even from his persecution--and this he calls putting down the Catholic Committee![3]

Next, he glorifies himself in his prospect of putting down the Catholic Board. For the present, he, indeed, tells you, that much as he hates the Papists, it is unnecessary for him to crush our Board, because we injure our own cause so much. He says that we are very criminal, but we are so foolish that our folly serves as a compensation for our wickedness. We are very wicked and very mischievous, but then we are such foolish little criminals, that we deserve his indulgence. Thus he tolerates offences, because of their being committed sillily; and, indeed, we give him so much pleasure and gratification by the injury we do our own cause that he is spared the superfluous labor of impeding our petition by his prosecutions, fines, or imprisonments.

He expresses the very idea of the Roman Domitian, of whom some of you possibly may have read; he amused his days in torturing men--his evenings he relaxed in the humble cruelty of impaling flies. A courtier caught a fly for his imperial amusement--“Fool,” said the emperor, “fool, to give thyself the trouble of torturing an animal that was about to burn itself to death in the candle!” Such is the spirit of the Attorney-General’s commentary on our Board. Oh, rare Attorney-General!--Oh, best and wisest of men!!!

But, to be serious. Let me pledge myself to you that he imposes on you, when he threatens to crush the Catholic Board. Illegal violence may do it--force may effectuate it; but your hopes and his will be defeated, if he attempts it by any course of law. I am, if not a lawyer, at least a barrister. On this subject I ought to know something, and I do not hesitate to contradict the Attorney-General on this point, and to proclaim to you and to the country that the Catholic Board is perfectly a legal assembly--that it not only does not violate the law, but that it is entitled to the protection of the law, and in the very proudest tone of firmness, I hurl _defiance_ at the Attorney-General!

I defy him to allege a law or a statute, or even a proclamation that is violated by the Catholic Board. No, gentlemen, no; his religious prejudices--if the absence of every charity can be called anything religious--his religious prejudices really obscure his reason, his bigoted intolerance has totally darkened his understanding, and he mistakes the plainest facts and misquotes the clearest law, in the ardor and vehemence of his rancor. I disdain his moderation--I scorn his forbearance--I tell him he knows not the law if he thinks as he says; and if he thinks so, I tell him to his beard, that he is not _honest_ in not having sooner prosecuted us, and I challenge him to that prosecution.

It is strange--it is melancholy, to reflect on the miserable and mistaken pride that must inflate him to talk as he does of the Catholic Board. The Catholic Board is composed of men--I include not myself--of course, I always except myself--every way his superiors, in birth, in fortune, in talents, in rank. What is he to talk of the Catholic Board lightly? At their head is the Earl of Fingal, a nobleman whose exalted rank stoops beneath the superior station of his virtues--whom even the venal minions of power must respect. We are engaged, patiently and perseveringly engaged, in a struggle through the open channels of the constitution for our liberties. The son of the ancient earl whom I have mentioned cannot in his native land attain any honorable distinction of the state, and yet Mr. Attorney-General knows that they are open to every son of every bigoted and intemperate stranger that may settle amongst us.

But this system cannot last; he may insult, he may calumniate, he may prosecute; but the Catholic cause is on its _majestic march_; its progress is rapid and obvious; it is cheered in its advance, and aided by all that is dignified and dispassionate--by everything that is patriotic--by all the honor, all the integrity, of the empire; and its success is just as certain as the return of to-morrow’s sun, and the close of to-morrow’s eve.

“_We will--we must soon be emancipated_,” in despite of the Attorney-General, aided as he is by his august allies, the aldermen of Skinner’s-alley. In despite of the Attorney-General and the aldermen of Skinner’s-alley, our emancipation is certain, and not distant.

I have no difficulty in perceiving the motive of the Attorney-General in devoting so much of his medley oration to the Catholic question, and to the expression of his bitter hatred to us, and of his determination to ruin our hopes. It had, to be sure, no connection with the cause, but it had a direct and natural connection with you. He has been, all his life, reckoned a man of consummate cunning and dexterity; and whilst one wonders that he has so much exposed himself upon those prosecutions, and accounts for it by the proverbial blindness of religious zeal, it is still easy to discover much of his native cunning and dexterity. Gentlemen, he thinks he knows his men--he knows you; many of you signed the no-Popery petition; he heard one of you boast of it; he knows you would not have been summoned on this jury if you had entertained liberal sentiments; he knows all this, and therefore it is that he, with the artifice and cunning of an experienced _nisi prius_ advocate, endeavors to win your confidence and command your affections by the display of his congenial illiberality and bigotry.

You are all, of course, Protestants; see what a compliment he pays to your religion and his own, when he endeavors thus to procure a verdict on your oaths; when he endeavors to seduce you to what, if you were so seduced, would be perjury, by indulging your prejudices and flattering you by the coincidence of his sentiments and wishes. Will he succeed, gentlemen? Will you allow him to draw you into a perjury out of zeal for your religion? And will you violate the pledge you have given to your God to do justice, in order to gratify your anxiety for the ascendancy of what you believe to be his church? Gentlemen, reflect on the strange and monstrous inconsistency of this conduct, and do not commit, if you can avoid it, the pious crime of violating your solemn oaths, in aid of the pious designs of the Attorney-General against Popery.

Oh, gentlemen! it is not in any lightness of heart I thus address you--it is rather in bitterness and sorrow; you did not expect flattery from me, and my client was little disposed to offer it to you; besides, of what avail would it be to flatter, if you came here pre-determined, and it is too plain that you are not selected for this jury from any notion of your impartiality?

But when I talk to you of your oaths and of your religion, I would full fain I could impress you with a respect for both the one and the other. I, who do not flatter, tell you, that though I do not join with you in belief, I have the most unfeigned respect for the form of Christian faith which you profess. Would that its substance, not its forms and temporal advantages, were deeply impressed on your minds! Then should I not address you in the cheerless and hopeless despondency that crowds on my mind, and drives me to taunt you with the air of ridicule I do. Gentlemen, I sincerely respect and venerate your religion, _but_ I despise and I now apprehend your prejudices, in the same proportion as the Attorney-General has cultivated them. In plain truth, every religion is good--every religion is true to him who, in his due caution and conscience, believes it. There is but one bad religion, that of a man who professes a faith which he does not believe; but the good religion may be, and often is, corrupted by the wretched and wicked prejudices which admit a difference of opinion as a cause of hatred.

The Attorney-General, defective in argument--weak in his cause, has artfully roused your prejudices at his side. I have, on the contrary, met your prejudices boldly. If your verdict shall be for me, you will be certain that it has been produced by nothing but unwilling conviction resulting from sober and satisfied judgment. If your verdict be bestowed upon the artifices of the Attorney-General, you may happen to be right; but do you not see the danger of its being produced by an admixture of passion and prejudice with your reason? How difficult is it to separate prejudice from reason, when they run in the same direction! If you be men of conscience, then I call on you to listen to me, that your consciences may be safe, and your reason alone be the guardian of your oath, and the sole monitor of your decision.

I now bring you to the immediate subject of this indictment. Mr. Magee is charged with publishing a libel in his paper called the _Dublin Evening Post_. His lordship has decided that there is legal proof of the publication, and I would be sorry you thought of acquitting Mr. Magee under the pretence of not believing that evidence. I will not, therefore, trouble you on that part of the case; I will tell you, gentlemen, presently, what this publication is; but suffer me first to inform you what it is not--for this I consider to be very important to the strong, and in truth, triumphant defence which my client has to this indictment.

Gentlemen, this is _not_ a libel on Charles Lennox, Duke of Richmond, in his private or individual capacity. It does not interfere with the privacy of his domestic life. It is free from any reproach upon his domestic habits or conduct; it is perfectly pure from any attempt to traduce his personal honor or integrity. Towards the man, there is not the least taint of malignity; nay, the thing is still stronger. Of Charles, Duke of Richmond, personally, and as disconnected with the administration of public affairs, it speaks in terms of civility and even respect.[4] It contains this passage which I read from the indictment:

“Had he remained what he first came over, or what he afterwards professed to be, he would have retained his reputation for _honest open hostility_, defending his political principles with firmness, perhaps with warmth, but without rancor; the supporter and not the tool of an administration; a mistaken politician, perhaps, but an honorable man and a respectable soldier.”

The Duke is here in this libel, my lords,--in this libel, gentlemen of the jury, the Duke of Richmond is called an honorable man and a respectable soldier! Could more flattering expressions be invented? Has the most mercenary Press that ever yet existed, the mercenary Press of this metropolis, contained, in return for all the money it has received, any praise which ought to be so pleasing--“an honorable man and a respectable soldier”? I do, therefore, beg of you, gentlemen, as you value your honesty, to carry with you in your distinct recollection this fact, that whatever of evil this publication may contain, it does not involve any reproach against the Duke of Richmond in any other than in his public and official character.

I have, gentlemen, next to require you to take notice that this publication is not indicted as a seditious libel. The word seditious is, indeed, used as a kind of make-weight in the introductory part of the indictment. But mark, and recollect, that this is not an indictment for sedition. It is not, then, for private slander, nor for any offence against the constitution, that Mr. Magee now stands arraigned before you.

In the third place, gentlemen, there is this singular feature in this case, namely, that this libel, as the prosecutor calls it, is not charged in this indictment to be “false.”

The indictment has this singular difference from any other I have ever seen, that the assertions of the publications are not even stated to be false.

They have not had the courtesy to you, to state upon record that these charges, such as they are, were contrary to the truth. This I believe to be the first instance in which the allegation of falsehood has been omitted. To what is this omission to be attributed? Is it that an experiment is to be made, how much further the doctrine of the criminality of truth can be drawn? Does the prosecutor wish to make another bad precedent; or is it in contempt of any distinction between truth and falsehood, that this charge is thus framed; or does he fear that you would scruple to convict, if the indictment charged that to be false which you all know to be true?

However that may be, I will have you to remember that you are now to pronounce upon a publication, _the truth of which is not controverted_. Attend to the case, and you will find you are not to try Mr. Magee for sedition which may endanger the state, or for private defamation which may press sorely upon the heart, and blast the prospects of a private family; and that the subject matter for your decision is not characterized as false, or described as untrue.

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.

A tradesman--a ruffian, I presume, he was styled--in an altercation with a nobleman’s servant, called the swan which was worn on the servant’s arm for a badge, a goose. For this offence--the calling a nobleman’s badge of a swan, a goose--he was brought before the Star-Chamber; he was, of course, convicted; he lost, as I recollect, one of his ears on the pillory, was sentenced to two years’ imprisonment, and a fine of £500; and all this to teach him to _distinguish swans from geese_.

I now ask you, to what is it you tradesmen and merchants are indebted for the safety and respect you can enjoy in society? What is it which has rescued you from the slavery in which persons who are engaged in trade were held by the iron barons of former days? I will tell you; it is the light, the reason, and the liberty which have been created, and will, in despite of every opposition, be perpetuated by the exertion of the Press.

Gentlemen, the Star-Chamber was particularly vigilant over the infant struggles of the Press. A code of laws became necessary to govern the new enemy to prejudice and oppression--the Press. The Star-Chamber adopted, for this purpose, the civil law, as it is called--the law of Rome--not the law at the periods of her liberty and her glory, but the law which was promulgated when she fell into slavery and disgrace, and recognized this principle, that the will of the prince was the rule of the law. The civil law was adopted by the Star-Chamber as its guide in proceedings against, and in punishing libellers; but, unfortunately, only part of it was adopted, and that, of course, was the part least favorable to freedom. So much of the civil law as assisted to discover the concealed libeller, and to punish him when discovered, was carefully selected; but the civil law allowed truth to be a defence, and that part was carefully rejected.