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his client, for that had been no infringement of the law. It arose from a sense of his own inability to sustain the great interests committed to his charge, and a fear lest the holy and Christian cause with which he was entrusted might suffer from the incompetency of its advocate. It was the cause of Protestant Dissenters which he advocated; and his client relied, and the Protestant Dissenters relied also, with full confidence on the verdict of the jury. Another source of difficulty arose from the opinion of the chairman, which had been, (he must be permitted to say, though he said it with due respect), prematurely and somewhat rashly thrown out at so early a period of the trial. He could not iinitate the pleasantry which had been displayed by his learned friend, the counsel for the prosecution; for he was not sufficiently at ease to be sportive. He was ready to admit, that when the case was first presented to him, his opinion coincided with that which had been expressed by Mr. Starkie and the chairman, that the conduct of the defendant had been illegal; but that opinion had been removed by an investigation into the merits of the case, and he was confirmed in his present impressions by what they had heard that day. Mr. Starkie, in support of his view of the subject, had told them that the matter had been already decided, and he had quoted a case, which, he said, took place in that court about a hundred years ago. But that case had no legal weight; it was from no authentic record; and no lawyer could hear it read, without feeling that it cut its own throat. It stated, that the matter was sent to the assizes, and tried there, but that from thence it was sent back to the quarter sessions, where it was given against the preacher. Now this statement justified him in saying, that it was an ignorant and false representation of what took place, if it were not entirely a wicked invention of the enemy. Every lawyer knew that no such circumstances could possibly have occurred.
Mr. Starkie here said, a case night be removed by certioruri to the assizes, and afterwards sent back to be tried at the sessions.
Mr. Courtenay replied, he knew that very well, though it had seldom or ever been done of late years, but he inquired how a case, the trial of which took place at the assizes, could be sent down for new trial or judgment here? Another case much more in point might have been quoted by his learned friend, but he had very prudently forborne to do so, because he did not like it; it was not to bis present purpose. This was that of Penn and Mead in the year 1670, as reported in the State Trials. It was an object at that period to put down the Quakers, and accordingly, William Penn, the celebrated leader of that body, and a friend of his named Mead, were brought to trial, not at the New Bailey in Manchester, but at the Old Bailey in London, on an indictinent very similar to the present. The charge against these individuals was for riotously and tumultuously assembling in Gracechurch Street; and the conduct of the court, on the occasion of their trial, presented an example of tyranny, of which, fortunately, few instances existed! From that conduct, no doubt could be entertained of the hardship which the defendants would have suffered, if they had not been protected by a British jury, who, by finding an honest special verdict of“Guilty of speaking in Gracechurch Street,” disappointed the court of their expected vengeance. This verdict the court refused to receive, and repeatedly sent the jury out to reconsider it; but, after being confined all night, they manfully returned in the morning, a general verdict of “ Not guilty.” For this, following up their arbitrary and tyrannical course, the court imposed a fine on the jury for alleged misconduct, and one of them (Bushell) refusing to pay his fine, was committed to prison. His case then became matter of judicial investigation. Bushell was brought up by writ of habeas corpus in the Court of Common Pleas, and promptly released. Looking to the evidence which had vol. II1.-NO. 6.
been given in the present case as very similar to that given in the case of Penn and Mead, he felt satisfied, that, as was the course of the honest jury then, the jury now, as honest and independent he did not doubt, was not to be bamboozled into belief that this meeting was tumultuous. This prosecu, tion, he hesitated not to say, was tyrannical and hypocritical. There was po law of the land, or of God, agaiast preaching in the highway; but the object was to put down unpleasant doctrines. From the time of Penn and Mead to the present, no such prosecution had been attempted. Had not the practice of field preaching very much increased during the last century, and especially of late years ? And was not the absence of all prosecution for it a strong proof that it was no offence? Was it to be left for the New Bailey, in the year 1821, to have a revival of the persecutions attempted a hundred and fifty years back? He had already stated, that bis tirst impressions on the subject were those of the chairman. Those impressious had, however, been completely removed; but even if the conduct of his client had been wrong in law, he might give the go-by to the question for want of evidence. The second and third counts of the indictment charged riot, tumult, and disturbance. But as this was not supported by a tittle of evidence, the jury would have to confine their attention to the first count, viz. the charge of obstruction; and that obstruction amounted to nothing. What was it? Why, that persons were hearing his client preach; and that, according to one witness, there was a hearse, which, he supposed, turned another way in consequence. Could the jury lay their hands upon their hearts, and say, from this, that any obstruction existed? The other witness admitted, on his cross-examination by my learned friend who is with me as counsel for the defendant, that there was room on the other side of the street, and that if any carriage had come, the people would hare given way. This was a prosecution at common law. It was admitted on all hands, that there was no statute, no positive law, which his client had infringed. The common law was the unwritten law of sense. It combined the purest reason with the purest justice. He had the authority of Chief Justice llale, one of the first lawyers, the best judges, and the most excellent men, that ever adorned the bench, for saying, that Christianity was part and parcel of the common law. He called upon the jury, therefore, to pause and investigate, how that which our Saviour did, and instructed his apostles to do, could be a nuisance; - to pause and consider, how conduct which was sanctioned by his example, and enforced by his commands, could be a nuisance at common law. The common law being that whereof the memory of man runneth not to the contrary, it follows that a nuisance at common law can be no new nuisance; it must have been such always, at all times, and under all circumstances. But he had shown, that notwithstanding the great increase of field preaching within the last century, there was no instance of an indictment such as the preselit for one hundred and fifty years. It folowed, therefore, and he had a right so to conclude, that, in the eye
of the law, such preaching constituted no nuisance. With respect to the obstruction of the highway,--admitting, but admitting only for the sake of argument, that it had been proved, be would ask, whether assembling in the streets was at all times, and on all occasions, to be deemed a public nuisance? By way of illustration, he would state a case; -on Thursday last the king's highways in Manchester were obstructed, not by hundreds, but by thousands and tens of thousands; the passage of numerous carriages was, not supo posedly, but actually, prevented; and that for a great length of time. There was shouting and singing; and on that occasion, the reverend chairman and the other magistrates on the bench were present, and in those obstructions they bore a part. But who could doubt, that, if those inagistrates had
been indicted for a nuisance in celebrating the day of the coronation, by some discontented individual, who, from political or other motives, felt himself annoyed by the shoutings and singing of those very loyal persons, the jury would have expressed their abhorrence and detestation of it? And would they, could they say, that for Christians to assenible to praise God, under that canopy of heaven which God himself had spread, was a nuisance? Could they say that it was no nuisance to celebrate the coronation of George the Fourth, but was one to celebrate the praises of their Maker? Attend to the practice of our Saviour. “My learned friend,” continued Mr. Courtenay,
triumphantly asks me for even a solitary text which authorizes the con. duct pursued by my client, and says, that if I produce it he will abandon the charge against him. I will give him then not one, but several. In St. Matthew's Gospel, chapter x. verse 27, our Saviour expressly cominands his disciples, ' What I tell you in darkness, that speak ye in light; and what ye hear in the ear, that preach ye upon the housetops.' And to whom, I would ask, were they to preach from the housetops, but to an audience (my friend may call them a shouting, ranting, roaring mob, if he pleased) assembled in the public streets? Again, we read, “ Go ye unto the highways and hedges.' And in the 16th chapter of Mark, and at the 15th verse, we have this express command of our Saviour to his disciples, ' Go ye unto all the world, and preach the Gospel to every creature.' And yet, for acting in obedience to this very clear and imperative direction, is my client now indicted as the violator of a law of which Christianity is the foundation and an integral part. My learned friend asks for the Scriptural warrant for field and for street preaching. I will give it him in the practice of our Saviour, as recorded in the 2d chapter of the Gospel according to St. Mark, and the 2d verse.
• Avd straightway many were gathered together, insomuch that there was no way to receive them, no, not so much as about the door; and he preached the word unto them ;' i. e. obviously to persons gathered together, as was the case in the instance now before you, 'round a door in a public street."" There were many other passages to the like effect in Scripture, he added, but he would not quote them, for he had already quoted enough. And what construction, he would ask his learned friend, or, what was more important, he would ask the jury, could be put upon those passages, but that of preaching to people in the highways? He asked them, as men and as Christians, upon their oathis, and it was only as Christians that even their oaths were binding, was that a nuisance? Did our Saviour encourage and promote nuisances ? Ile hoped that the worthy and reverend chairman would not be offended with him for having called his opinion rash: he thought that he had now proved that it was so. But who was the invisible prosecutor? Why did he not come forward ? The jury had seen Newton's flippancy; they had witnessed the manner in which he gave his evidence; and he asked them whether it was possible to doubt that he had given a colour to his testimony to suit his own views ?' He said the ostler had come to him from a gentleman, to request him to interfere. It was the only symptom of grace he had witnessed about the indictinent, that the prosecutor was ashamed to show his face. Ile well knew, that there was no riot, tumult, or disturbance ; that no person was alarmed or terrified. He (Mr. Courtenay) repeated that the prosecution was hypocritical. There was no law to prevent meetings of those whom they chose to call ranters and roarers; that there was no prosecutor proved it. The indictment attempted a juggle on the understandings and consciences of the jury, which, be hoped, they would have spirit to resist. He called upon them to separate what was proved from what was alleged. Like discerning men, they would distinguish between what was substantiated by evidence, and what was charged
in the indictment. If the jury considered it necessary for the question to be raised, in order that it might be fully discussed, they would give a special ver
find only the facts, and not be entrapped to bring in a lumping verdict of guilty. Why a question so important to the rights of Protestant Dissenters should have been brought to trial in that court, he was at a loss to determine. He suspected, however, that the invisible prosecutor, judging of others by his own baseness, thought to succeed at the Quarter Sessions, when in a higher court he would have had no chance. He could conceive that a man so base as the wicked and hypocritical prosecutor in this odious case, might have speculated on the composition of the tribunal ;-might have considered that the learned and reverend gentleman in the chair, brought up in the universities of orthodoxy, would possibly pollute the seat of justice by prejudices imbibed elsewhere. His client might have removed the case, but, relying on the impartiality of the chairman, he had full confidence in the jury. In their hands were the rights of Protestant Dissenters; at their hands he looked to receive protection : he should scorn to attain his ends by idle flattery; he hoped, and trusted, and believed, they were all honest and impartial men,-- but if there was one amongst them, and but one, for he wanted not twelve for the purpose, though he had no doubt but he should have them, who felt that respect which a Christian ought to feel for the precepts of his Saviour, that man would die rather than find the defendant guiliy, rather than give a verdict so inimical to the Gospel, and to the Saviour who preached it. The conduct of his client was no common-law nuisance, for it was impossible to pronounce that a nuisance which their very religion enjoined: with respect to obstruction, no evidence of that had been given, no one had said he meant to go that way, and could not. The driver of the hearse had not been called, nor had the undertaker, nor the mourners, nor the owner of the gig; and why not? because they had met with no obstruction, and therefore had nothing to complain of. The indicts ment charged the defendant with having caused and procured persons to stand in the highway, that meant commanding them to do so; but he had no power to command them. He was not in the highway bimself; he was standing on the premises of a private individual ; the people who were in the street might be amenable, if any nuisance were committed, but not his client, who did not commit the nuisance, and had no control over those who did, if any was committed, which, however, he denied. It was true, a bookseller was responsible if his servant sold libels. But there was a case reported, and to which hè referred, in which a man was indicted for causing the distribution of hand-bills in the street, which was quashed by the King's Bench, on the ground that it was the person who actually distributed the hand-bills that should have been indicted, and not the man who set him there. He was, therefore, entitled to an acquittal upon evidence. But he asked their verdict upon higher grounds : be asked it from them as Christians, in favour of one who had done only what had been done by that Saviour to whom, and to whose religion, we owe every thing which makes us better than the rest of mankind. He observed in conclusion, that he relied with perfect confidence in their honesty and firmness.
The defendant's counsel thought it unnecessary to call any witnesses, and, therefore, declined doing so, although several of the most respectable people in Manchester were in attendance to speak to the high character which he bore.
The chairman, in addressing the jury, said, that a case not in itself important, had been made so by the manner in which it had been mixed up with other matters. The rights of Dissenters were not, in any way, in issue. The jury had only to ask themselves, whether the assembling of 2 or 300 persons in public day, and in the public streets, was, or was not, a nuisance. They had nothing to do with the horrid case which had been cited by Mr. Courtenay; but, perhaps, it might be in some degree owing to that, amongst other things, that a law was subsequently passed, according to which, by the simple registration of a place, persons might be admitted to preach there, provided it were done with decency and propriety. Every person, therefore, whatever might be his religious sentiments, might assemble in a private, decent manner, either to preach, or to hear others. But he put it to the jury to say, whether 2 or 300 persons standing in the public street, was or was not a nuisance. With respect to the obstruction, it was proved that a hearse had gone another way in consequence of it; and the witness Ogden said, that carriages could not pass, without going on the flags on the other side of the street. For 2 or 300 persons to remain assembled in that way for a long time, must be a nuisance to the liege subjects of the king. Christianity had nothing to do with the question; they had only to ask themselves, whether the conduct of the defendant was a nuisance or not; and he had no difficulty, or hesitation, in saying, that in law it was one.
The defendant's counsel here reminded the chairman, that there was no proof of an actual obstruction; but he told them that he should not require such proof, but leave it to the common sense of the jury, whether such an assemblage must not necessarily be an obstruction.
After the jury had consulted some time, the chairman intimated, that if they were not likely soon to agree, they had better retire into their own room; when the foreman, Mr. Anthony, said, they were all agreed but one man. The chairman replied, that it was not usual to inquire into the state of opinions amongst the jury.
At a subsequent period, the jury inquired through their foreman, whether they might deliver a special verdict. Mr. Courtenay repeated the inquiry. The court said not; the chairman adding, that he had never known a special verdict delivered at a quarter sessions. Both the defendant's counsel expressing their surprise that such an opinion should be entertained, were about to address the court upon the subject, when the assistant to the clerk of the peace mentioned an instance of a special verdict in this very court of quarter sessions, in a boundary case. On being appealed to by the chairman for his opinion, Mr. Starkie, the counsel for the prosecution, stated, that the jury might find specially; and in this opinion were the counsel at the table, not engaged in the cause. The court then instructed the jury accordingly; shortly after which, having deliberated about fifty minutes, they returned a verdict of guilty of obstructing the king's highway, in the parish of Ashton-under-Lyne; that being, in fact, a general verdict of guilty, on the first count of the indictment.
The chairman, addressing the jury, then said, As this case, from some cause or other, seems to have excited more interest than belongs to it, and there has been some difference of opinion in the jury, I cannot help saying that your verdict is agreeable to justice, and the law of the land. İle then inquired whether, after the verdict which had been given, as he took for granted that the prosecution was not instituted with a view to a vindictive punisbinent, any compromise could take place, by the defendant entering into sureties not again to offend in like manner.
Mr. Courtenay said, that the conduct of his client had been guided by what he conceived to be his duty, and as his view of that was not altered by the verdict which had been given, his counsel were instructed not to apply for any mitigation of the sentence which the court might think proper to pronounce.