Part 3

The Star-Chamber was soon after abolished. It was suppressed by the hatred and vengeance of an outraged people, and it has since, and until our days, lived only in the recollection of abhorrence and contempt. But we have fallen upon bad days and evil times; and in our days we have seen a lawyer, long of the prostrate and degraded Bar of England, presume to suggest an high eulogium on the Star-Chamber, and regret its downfall; and he has done this in a book dedicated, by permission, to Lord Ellenborough. This is, perhaps, an ominous circumstance; and as Star-Chamber punishments have been revived--as two years of imprisonment have become familiar--I know not how soon the useless lumber of even well-selected juries may be abolished, and a new Star-Chamber created.

From the Star-Chamber, gentlemen, the prevention and punishment of libels descended to the courts of common law, and with the power they seem to have inherited much of the spirit of that tribunal. Servility at the bar, and profligacy on the bench, have not been wanting to aid every construction unfavorable to freedom, and at length it is taken as granted and as clear law that truth or falsehood are quite immaterial circumstances, constituting no part of either guilt or innocence.

I would wish to examine this revolting doctrine, and, in doing so, I am proud to tell you that it has no other foundation than in the oft-repeated assertions of lawyers and judges. Its authority depends on what are technically called the _dicta_ of the judges and writers, and not upon solemn or regular adjudications on the point. One servile lawyer has repeated this doctrine, from time to time, after another--and one overbearing judge has re-echoed the assertion of a time-serving predecessor; and the public have, at length, submitted.

I do, therefore, feel not only gratified in having the occasion, but bound to express my opinion upon the real law of this subject. I know that opinion is but of little weight. I have no professional rank, or station, or talents to give it importance, but it is an honest and conscientious opinion, and it is this--that in the discussion of _public subjects_, and of the administration of _public men_, _truth_ is a duty and not _a crime_.

You can, at least, understand _my_ description of the liberty of the Press. That of the Attorney-General is as unintelligible as contradictory. He tells you, in a very odd and quaint phrase, that the liberty of the Press consists in there being no previous restraint upon the tongue or the pen. How any _previous_ restraint could be imposed on the tongue it is for this wisest of men to tell you, unless, indeed, he resorts to Doctor Lad’s prescription with respect to the toothache eradication. Neither can the absence of previous restraint constitute a free Press, unless, indeed, it shall be distinctly ascertained, and clearly defined, what shall be subsequently called a crime. If the crime of libel be undefined, or uncertain, or capricious, then, instead of the absence of restraint before publication being an advantage, it is an injury; instead of its being a blessing, it is a curse--it is nothing more than a pitfall and snare for the unwary. This liberty of the Press is only an opportunity and a temptation offered by the law to the commission of crime--it is a trap laid to catch men for punishment--it is not the liberty of discussing truth or discountenancing oppression, but a mode of rearing up victims for prosecution, and of seducing men into imprisonment.

Yet, can any gentleman concerned for the Crown give me a definition of the crime of libel? Is it not uncertain and undefined; and, in truth, is it not, at this moment, quite subject to the caprice and whim of the judge and of the jury? Is the Attorney-General--is the Solicitor-General--disposed to say otherwise? If he do, he must contradict his own doctrine, and adopt mine.

But no, gentlemen, they must leave you in uncertainty and doubt, and ask you to give a verdict, on your oath, without furnishing you with any rational materials to judge whether you be right or wrong. Indeed, to such a wild extent of caprice has Lord Ellenborough carried the doctrine of crime in libel, that he appears to have gravely ruled, that it was a crime to call one lord “a stout-built, special pleader,” although, in point of fact, that lord was stout-built, and had been very many years a special pleader. And that it was a crime to call another lord “a sheep-feeder from Cambridgeshire,” although that lord was right glad to have a few sheep in that county. These are the extravagant vagaries of the Crown lawyers and prerogative judges; you will find it impossible to discover any rational rule for your conduct, and can never rest upon any satisfactory view of the subject, unless you are pleased to adopt my description. Reason and justice equally recognize it, and, believe me, that genuine law is much more closely connected with justice and reason than some persons will avow.

Gentlemen, you are now apprised of the nature of the alleged libel; it is a discussion upon the administration of public men. I have also submitted to you my view of the law applicable to such a publication: we are, therefore, prepared to go into the consideration of every sentence in the newspaper in question.

But before I do so, just allow me to point your attention to the motives of this young gentleman. The Attorney-General has threatened him with fine and a dungeon; he has told Mr. Magee that he should suffer in his purse and in his person. Mr. Magee knew his danger well. Mr. Magee, before he published this paper, was quite apprised that he ran the risk of fine and of imprisonment. He knew also that if he changed his tone--that if he became merely neutral, but especially if he went over to the other side and praised the Duke of Richmond--if he had sufficient gravity to talk, without a smile, of the sorrow of the people of Ireland at his Grace’s departure--if he had a visage sufficiently lugubrious to say so without laughing, to cry out “mournfully, oh! mournfully!” for the departure of the Duke of Richmond--if, at a period when the people of Ireland, from Magherafelt to Dingledecouch, are rejoicing at that departure, Mr. Magee could put on a solemn countenance and pick up a grave and narcotic accent, and have the resolution to assert the sorrow of the people for losing so sweet and civil a Lord Lieutenant--why, in that case, gentlemen, you know the consequences. They are obvious. He might libel certain classes of his Majesty’s subjects with impunity; he would get abundance of money, a place, and a pension--you know he would. The proclamations would be inserted in his paper. The wide-street advertisements, the ordnance, the barrack-board notices, and the advertisements of all the other public boards and offices--you can scarcely calculate how much money he sacrifices to his principles. I am greatly within bounds when I say at least £5000 per annum, of the public money, would reach him if he was to alter his tone, and abandon his opinions.

Has he instructed me to boast of the sacrifices he thus makes? No, gentlemen, no, no; he deems it no sacrifice because he desires no share in the public plunder; but I introduce this topic to demonstrate to you the purity of his intentions. He cannot be actuated, in the part he takes, by mean or mercenary motives; it is not the base lucre of gain that leads him astray. If he be mistaken, he is, at least, disinterested and sincere. You may dislike his political opinions, but you cannot avoid respecting the independence of his principles.

Behold, now, the publication which this man of pure principles is called to answer for as a libel. It commences thus:--

“DUKE OF RICHMOND.

“As the Duke of Richmond will shortly retire from the government of Ireland, it has been deemed necessary to take such a review of his administration as may at least warn his successor from pursuing the errors of his Grace’s conduct.

“The review shall contain many anecdotes of the Irish court which were never published, and which were so secret, that his Grace will not fail to be surprised at the sight of them in a newspaper.”

In this paragraph there is nothing libellous; it talks of the errors, indeed, of his Grace’s administration; but I do not think the Attorney-General will venture to suggest that the gentle expression of “errors” is a libel.

To err, gentlemen, is human: and his Grace is admitted, by the Attorney-General, to be but a man; I shall waste none of your time in proving that we may, without offence, treat of his “errors.” But this is not even the errors of the man, but of his administration; it was not infallible, I humbly presume.

I call your particular attention to the third paragraph; it runs thus:--

“If the administration of the Duke of Richmond had been conducted with more than ordinary talent, its errors might in some degree have been atoned for by its ability, and the people of Ireland though they might have much to regret, yet would have something to admire; but truly after the gravest consideration, they must find themselves at a loss to discover any striking feature in his Grace’s administration, that makes it superior to the worst of his predecessors.”

The Attorney-General dwelt much upon this paragraph, gentlemen, and the importance which he attached to it furnishes a strong illustration of his own consciousness of the weakness of his case. What is the meaning of this paragraph? I appeal to you whether it be more than this: that there has been nothing admirable in this administration; that there has not been much ability displayed by it. So far, gentlemen, there is, indeed, no flattery, but still less of libel, unless you are prepared to say that to withhold praise from any administration deserves punishment.

Is it an indictable offence not to perceive its occult talents? Why, if it be, find my client guilty of not being a sycophant and a flatterer, and send him to prison for two years, to gratify the Attorney-General, who tells you that the Duke of Richmond is the _best_ chief governor Ireland ever saw.

But the mischief, I am told, lies in the art of the sentence. Why, all that it says is, that it is difficult to discover the striking features that distinguish this from bad administrations. It does not, gentlemen, assert that no such striking features exist, much less does it assert that no features of that kind exist, or that such features, although not striking, are not easily discernible. So that, really, you are here again required to convict a man for not flattering. He thinks an administration untalented and silly; that is no crime; he says it has not been marked with talent or ability--that it has no striking features; all this may be mistaken and false, yet there is nothing in it that resembles a crime.

And, gentlemen, _if it be true_--if this _be_ a foolish administration, can it be an offence to say so? If it has had no striking features to distinguish it from bad administrations, can it be criminal to say so? Are you prepared to say that not one word of truth can be told under no less a penalty than years of a dungeon and heavy fines?

Recollect, that the Attorney-General told you that the Press was the protection of the people against the government. Good Heaven! gentlemen, how can it protect the people against the government, if it be a crime to say of that government that it has committed errors, displays little talent, and has no striking features? Did the prosecutor mock you, when he talked of the protection the Press afforded to the people? If he did not insult you by the admission of that upon which he will not allow you to act, let me ask, against what is the Press to protect the people? When do the people want protection? When the government is engaged in delinquencies, oppression, and crimes. It is against these that the people want the protection of the Press. Now, I put it to your plain sense, whether the Press can afford such protection, if it be punished for treating of these crimes.

Still more, can a shadow of protection be given by a Press that is not permitted to mention the errors, the talents, and the striking features of an administration? Here is a watchman admitted by the Attorney-General to be at his post to warn the people of their danger, and the first thing that is done to this watchman is to knock him down and bring him to a dungeon, for announcing the danger he is bound to disclose. I agree with the Attorney-General, the Press is a protection, but it is not in its silence or in its voice of flattery. It can protect only by speaking out when there is danger, or error, or want of ability. If the harshness of this tone be complained of, I ask, what is it the Attorney-General would have? Does he wish that this protection should speak so as not to be understood; or, I again repeat it, does he mean to delude us with the name and the mockery of protection? Upon this ground, I defy you to find a verdict for the prosecutor, without declaring that he has been guilty of an attempt to deceive when he talked of the protection of the Press against errors, ignorance, and incapacity, which it is not to dare even to name. Gentlemen, upon this third paragraph, I am entitled to your verdict, upon the Attorney-General’s own admission.

He, indeed, passed on to the next sentence with an air of triumph, with the apparent certainty of its producing a conviction; I meet him upon it--I read it boldly--I will discuss it with you manfully--it is this:--

“They insulted, they oppressed, they murdered, and they deceived.”

The Attorney-General told us, rather ludicrously, that they, meaning the Duke’s predecessors, included, of course, himself. How a man could be included amongst his predecessors, it would be difficult to discover. It seems to be that mode of expression which would indicate that the Attorney-General, notwithstanding his foreign descent, has imbibed some of the language of the native Irish. But our blunders arise not like this, from a confusion of idea; they are generally caused by too great condensation of thought; they are, indeed, frequently of the head, but never--never of the heart. Would I could say so much for the Attorney-General; his blunder is not to be attributed to his cool and cautious head; it sprung, I much fear, from the misguided bitterness of the bigotry of his heart.

Well, gentlemen, this sentence does, in broad and distinct terms, charge the predecessors of the Duke, but not the Duke himself, with insult, oppression, murder, and deceit. But it is history, gentlemen: are you prepared to silence the voice of history? Are you disposed to suppress the recital of facts--the story of the events of former days? Is the historian, and the publisher of history, to be exposed to indictment and punishment?

Let me read for you two passages from Doctor Leland’s “History of Ireland.” I choose a remote period, to avoid shocking your prejudices by the recital of the more modern crimes of the faction to which most of you belong. Attend to this passage, gentlemen.

“Anno 1574.--A solemn peace and concord was made between the Earl of Essex and Felim O’Nial. However, at a feast, wherein the Earl entertained that chieftain, and at the end of their good cheer, O’Nial, with his wife, were seized; their friends, who attended, were put to the sword before their faces. Felim, together with his wife and brother, were conveyed to Dublin, where they were _cut up in quarters_.”

How would you have this fact described? In what ladylike terms is the future historian to mention this savage and brutal massacre? Yet Essex was an English nobleman--a predecessor of his Grace; he was accomplished, gallant, and gay; the envied paramour of the virgin queen; and, if he afterwards fell on the scaffold, one of the race of the ancient Irish may be permitted to indulge the fond superstition that would avenge the royal blood of the O’Nial and of his consort on their perfidious English murderer.

But my soul fills with bitterness, and I will read of no more Irish murders. I turn, however, to another page, and I will introduce to your notice another predecessor of his Grace the Duke of Richmond. It is Grey, who, after the recall of Essex, commanded the English forces in Munster. The fort of Smerwick, in Kerry, surrendered to Grey at discretion. It contained some Irish troops, and more than 700 Spaniards. The historian shall tell you the rest:--

“That mercy for which they sued was rigidly denied them. Wingfield was commissioned to disarm them, and when this service was performed, an English company was sent into the fort.

“The Irish rebels found they were reserved for execution by martial law.

“The Italian general and some officers were made prisoners of war: but the garrison _was butchered in cold blood_; nor is it without pain that we find a service so horrid and detestable committed to Sir Walter Raleigh.”

“The garrison was butchered in cold blood,” says the historian. Furnish us, Mr. Attorney-General, with gentle accents and sweet words to speak of this savage atrocity; or will you indict the author? Alas! he is dead, full of years and respect--as faithful an historian as the prejudices of his day would allow, and a beneficed clergyman of your church.

Gentlemen of the jury, what is the mild language of this paper compared with the indignant language of history? Raleigh--the ill-starred Raleigh--fell a victim to a tyrant master, a corrupt or overawed jury, and a virulent Attorney-General; he was baited at the bar with language more scurrilous and more foul than that you heard yesterday poured upon my client. Yet, what atonement to civilization could his death afford for the horrors I have mentioned?

Decide, now, gentlemen, between those libels--between that defamer’s history and my client. He calls those predecessors of his Grace, murderers. History has left the living records of their crimes, from the O’Nial, treacherously slaughtered, to the cruel, cold butchery of the defenceless prisoners. Until I shall see the publishers of Leland and of Hume brought to your bar, I defy you to convict my client.

To show you that my client has treated these predecessors of his Grace with great lenity, I will introduce to your notice one, and only one, more of them; and he, too, fell on the scaffold--the unfortunate Strafford, the best servant a despotic king could desire.

Amongst the means taken to raise money in Ireland for James the First and his son Charles, a proceeding called “a commission to inquire into defective titles” was invented. It was a scheme, gentlemen, to inquire of every man what right he had to his own property, and to have it solemnly and legally determined that he had none. To effectuate this scheme required great management, discretion, and integrity. First, there were 4000 excellent horse raised for the purpose of being, as Strafford himself said, “good lookers-on.” The rest of the arrangement I would recommend to modern practice; it would save much trouble. I will shortly abstract it from two of Strafford’s own letters.

The one appears to have been written by him to the Lord Treasurer; it is dated the 3d December, 1634. He begins with an apology for not having been more expeditious in this work of plunder, for his employers were, it seems, impatient at the melancholy waste of time. He then says:--

“Howbeit, I will redeem the time as much as I can, with such as may give furtherance to the king’s title, _and will inquire out fit men to serve upon the juries_.”

Take notice of that, gentlemen, I pray you; perhaps you thought that the “packing of juries” was a modern invention--a new discovery. You see how greatly mistaken you were; the thing has example and precedent to support it, and the authority of both are, in our law, quite conclusive.

The next step was to corrupt--oh, no, to interest the wise and learned judges. But commentary becomes unnecessary when I read for you this passage from a letter of his to the King, dated the 9th of December, 1636:--

“Your Majesty was graciously pleased, upon my humble advice, to bestow four shillings in the pound upon your Lord Chief Justice and Lord Chief Baron in this kingdom, fourth of the first yearly rent raised upon the commission of defective title, which, _upon observation, I find to be the best given that ever was_. For now they do intend it, with a care and diligence, such as if it were their own private, and most certain gaining to themselves; every four shillings once paid, shall better your revenue forever after, at least five pounds.”

Thus, gentlemen of the jury, all was ready for the mockery of law and justice, called a trial.

Now, let me take any one of you; let me place him here, where Mr. Magee stands; let him have his property at stake; let it be of less value, I pray you, than a compensation for two years’ imprisonment; it will, however, be of sufficient value to interest and rouse all your agony and anxiety. If you were so placed here, you would see before you the well-paid Attorney-General, perhaps, malignantly delighted to pour his rancor upon you; on the bench would sit the corrupt and partisan judge, and before you, on that seat which you now occupy, would be placed the packed and predetermined jury.

I beg, sir, to know what would be your feelings, your honor, your rage; would you not compare the Attorney-General to the gambler who played with a loaded die? and then you would hear him talk, in solemn and monotonous tones, of his conscience! Oh, his conscience, gentlemen of the jury!

But the times are altered. The Press, the Press, gentlemen, has effectuated a salutary revolution; a commission of defective titles would no longer be tolerated; the judges can no longer be bribed with money, and juries can no longer be----I must not say it. Yes, they can, you know--we all know they can be still _inquired out_, and “packed,” as the technical phrase is. But _you_, who are not packed, _you_, who have been _fairly_ selected, will see that the language of the publication before us is mildness itself, compared with that which the truth of history requires--compared with that which history has already used.

I proceed with this alleged libel.

The next sentence is this:--

“The profligate, unprincipled Westmoreland”--I throw down the paper and address myself in particular to some of you. There are, I see, amongst you some of our Bible distributors, “and of our suppressors of vice.” Distributors of Bibles, suppressors of vice--what call you profligacy? What is it you would call profligacy? Suppose the peerage was exposed to sale--set up at open auction--it was at that time a judicial office--suppose that its price, the exact price of this judicial office, was accurately ascertained by daily experience--would you call that profligacy? If pensions were multiplied beyond bounds and beyond example--if places were augmented until invention was exhausted, and then were subdivided and split into halves, so that two might take the emoluments of each, and no person do the duty--if these acts were resorted to in order to corrupt your representatives--would you, gentle suppressors of vice, call that profligacy?