« AnteriorContinuar »
returned to the box in less than a quarter of an hour; when it being asked by the Clerk of the Court whether they found the defendant guilty or not guilty, their foreman replied in a firm voice, Not Guilty.
Loud acclamations were instantly heard in all parts of the Court, which continued for several minutes.
The next cause between the King and William Hone was tried at the Court of King's-bench, before Lord Ellenborough and a special jury, on December 19. Of the special jury only six making their appearance, the rest consisted of talesmen made up in Court.
The Attorney-General, addressing the jury, said that they were assembled to try a cause of the utmost importance to the constitution of society. It was that of a libel which was a parody of that part of the divine service called the Litany, or General Supplication. The information charged the defendant with having, for the purpose of exciting impiety and irreligion, and to bring into contempt in the minds of his Majesty's subjects that part of the public service called the Litany, and to apply the style aud form of expression there used, to scandalous purposes, had published the libel in question. He then gave the jury a taste of the mode in which this conversion of the true sense of the Litany was effected; but while he was with due gravity applying to the Prince Regent, and the Houses of Lords and Commons, the expressions of a solemn form of devotion, he was disconcerted by the inlecorous laughter
of a part of the auditory. Recovering from this unexpected attack, he spoke with much severity of such interruptions of the courts of justice; and he concluded with saying, that if the defendant's pamphlet were determined not to be a profane libel, there was no insult of the kind that might not be offered to the established religion, and to the sacred writings, with impunity.
The libel was next read by the Clerk of nisi prius. It was entitled "The Political Litany;" and its direct purpose was to convert to a political meaning, the several articles of religious faith, in the order laid down in the original composition.
The case on the part of the Crown being closed, Mr. Hone rose with the intention of commencing his defence. Before he had proceeded to any length, Lord Ellenborough thought it proper to apprize him, that if he wished to show that similar applications or misapplications of texts of Scripture, or what is usually revered by the subjects of the realm, have been made by others as well as himself, he should not receive it.
I have stated (said his lordship) my decided purpose; and you may now use your own discretion whether you will dilate further upon a point which I declare is not judicially admissible!
Mr. Hone. I ask your lordship whether you mean to send me from this place to a prison? If you do not hear me, you do that. If you will not allow me to make my defence to the jury, how can I avoid it?
After some further discussion, his lordship said, Go on, exercise
your own discretion. I have stated the rule in intelligent and intelligible terms.
From this time to the termination of the trial almost the only speakers were Lord Ellenborough and Mr. Hone; and although it cannot be supposed that much civility passed between them, yet it does not appear that his lordship's decision respecting what was or what was not judicially admissible, prevented the defendant from bringing into Court the greater part of the parodies which was selected for their hearing.
Lord Ellenborough, in his in his charge to the jury, declared, that of all the parodies which the defendant had read, he could not find any that bore any proportion to the enormity of the present; and in conclusion he said, that he would deliver there his solemn opinion, as he was required by Act of Parliament to do; and under the authority of that Act, and still inore in obedience to his conscience and his God, he pronounced this to be a most impious and profane libel.
The jury retired at a quarter past six, and returned at eight; when the foreman, in a steady voice, pronounced a verdict of Not Guilty.
The third day of Mr. Hone's trial followed on December 20th. Lord Ellenborough sat a second time; and the Attorney-General, observing that the defendant was obviously much wearied by the exertions of the two preceding days, offered, as a matter of favour, to postpone the day. Mr. Hone, however, declined the indulgence, and wished the trial to proceed. The jury consisted of
seven spécial jurymen, and five talesmen.
The Attorney-General, in addressing them, said that it was his duty to charge the defendant with the publication of a profane libel on that part of the service of the Church of England, which was called the Creed of St. Athanasius. The work in which it was contained was entitled the Sinecurist's Creed; and he read several passages of the work to prove that it was a parody of that of St. Athanasius. The whole was afterwards read by Mr. Law; and whatever be thought of the adoption of the latter creed by the English church, it will scarcely be disputed that the ridicule attempted to be thrown upon it by the Sinecurist's Creed was of the lowest class of productions of that nature.
Mr. Hone then commenced his defence, which he continued during seven hours and a half with extraordinary spirit, passing in review the whole tribe of parodists, ancient and modern. In the reply of the Attorney-General, and the charge by Lord Ellenborough to the jury, there was evidently a falling off, compared to the decision with which the défendant had been pronounced upon in the former days of the trial; as there was on his part a confident appeal to the sentiments of the jury. At 20 minutes after eight the jury retired to consider their verdict, and returning into Court at 12 minutes before nine, their foreman pronounced à verdict of Not Guilty.
The moment the words were pronounced, a spontaneous burst of applause issued from the crowd
in the Court, which soon extended to the crowd on the outside; and for some minutes the hall and adjoining avenues rang with shouts and acclamations.
Some days afterwards a liberal subscription was entered into for Mr. Hone and his family.
FREEDOM OF SPEECH AT THE BAR.
Lancaster, Sept. 10.
Hodgson v. Scarlett.-Mr. Richardson stated the action to be brought by Peter Hodgson, gentleman, for damages on account of words spoken by James Scarlett, Esq. at the last spring assizes in this court.
Mr. Raine.-May it please your lordship, gentlemen of the jury, It often happens to all of us, owing to professional accident, to be engaged in actions painful to oúr feelings. Painful, I can with truth assure you, the present action is to my feelings. Having travelled in our professional walk, with a gentleman of Mr. Scarlett's character, for more than 26 years, having known him in private life for a still longer period, I cannot be supposed capable, by any who know me, of harbouring an unkiud sentiment towards him, and still less of giving utterance to such a sentiment, if I could entertain it: but what I owe to my client; what I owe to the profession to which I belong; what I owe, I may say it without arrogance, to myself, oblige me to lay before you the ground of the present action. Peter Hodgson is, and has long been, an eminent attorney in Whitehaven, in the county of Cumberland, and applies now to you in consequence
of the wound given to his professional reputation by Mr. Scarlett's language at this bar. The freedom of speech at the bar is of the utmost importance. During the present assize I heard, with much pleasure, Mr. Scarlett descant upon this topic. I could not help believing that he spoke then Freedom of speech is of the greatin anticipation of this action. This est importance, not only to the dignity of the bar, but to the interests of the public, whose high and delicate interests are intrusted to the bar. Of this freedom none can be a more strenuous and tenacious friend than I. In importance and utility, I hold it to be of the same rank as freedom of discussion in the Cominons' House of Parliament. I have thus made the highest admission in favour of Mr. Scarlett; but bounds must be set to this freedom of speechotherwise, from the greatest blessing, it becomes the bitterest curse that can infest and annoy society. These bounds were overleaped in this case. Mr. Scarlett, while addressing the jury for the defendant in an action in this court, went out of his way to traduce and vilify the character of the attorney for the plaintiff, and to wound his reputation. I shall not go into the particulars of that action: they are not upon the record, and his Lordship will tell you that it was not necessary they should. The words charged, and which we shall prove to have been spoken, are these "Some actions are founded in folly, some in knavery," (Mr. Baron Wood. That is surely true.-Mr. Raine. Yes, my Lord, these are certainly truisms, but they are thus connected), "some
in both; some actions in the folly and knavery of attornies, and some in the folly and knavery of the parties." My friend is not apt to deal in metaphysical abstraction; you know very well that he does not use words without application. We shall not attempt to prove his whole speech. You know with how little credit a long story is received from witnesses; but we shall prove the words here entered upon the record: "Mr. Peter Hodgson was the attorney for the plaintiff; he drew the promissory note; he fraudulently got Beaumont to pay 150l. to the plaintiff. This was the most profligate thing I ever knew done by a professional man." Then follows the particular expression which we have charged in the second count on the record: it concludes the remarks already stated to you. The sting is always in the tail. "Mr. Hodgson is a fraudulent and wicked attorney." Now, gentlemen, I ask you, if you were wrong in any action brought into this court, how would you like such abuse of the freedom of speech by a gentleman holding a high reputation at the bar? A humbler individual, if he had not the spirit and the honour to vindicate his fame from such an attack, would be ruined. My client has the spirit and honour to repel it. The defendant has joined the general issue; that is, the words are denied. I have a right to presume, indeed I have more than a presumption, that his instructions did not warrant the words, and Mr. Hodgson has taken care to ascertain the fact. In the hurry, agitation, and irritation of the bar, words may certainly be
uttered that are not warranted; but a serious impression to the injury of character and professional career could never be allowed to be made with impunity. What was Mr. Hodgson to do? He called upon Mr. Scarlett to justify or to deny these words: he would do neither. Mr. Hodgson, therefore, found he must appeal to a jury. The words will be indisputably proved. Mr. Hodgson was distinetly predicated to be a fraudulent and wicked attorney. only question then was, whether he was thus to be traduced with impunity. I mentioned that the plaintiff lives in a different county. It is generally a suspicious circumstance for a plaintiff to come to a jury of a different county, as if he could not trust a jury who knew his character. But in this case the action was brought here because the words charged been uttered here; and it is rather advantageous to my learned friend, for if there is one place on this circuit in which he is better known than in another place, it is the county palatine of Lancaster. As I believe this will be the last time I can address you on the subject, I must say a word of damages. I distinctly disclaim for my client that damages are his object. He only wants the vindication of his injured character. You will take care that he sustain no loss by this vindication. I do not ask for angry and vindictive_damages. I ask no more than justice to my client. Less than justice you will not give.
Mr. Baron Wood.-Can you mention any action of the same kind, or upon what principle it can be maintained?
I do not know that any action of the kind has ever been brought.
Mr. Baron Wood.-It appears to me that an action cannot be maintained for words spoken in judicial proceedings. If a counsel misbehaves, or goes too far, the judge who presides corrects his misconduct; but if an action is once maintained, there is no end of it. Actions of this kind would perpetually occupy the court. If a counsel were to pause in his pleading, and to say such a man is a great rogue, that would be actionable.
Mr. Raine. That is precisely our case. We say the libellous expressions were voluntarily and gratuitously used.
Mr. Baron Wood.-No; whether a note was fraudulent or not, as I understand the record, for I know nothing of the nature of the first action.
Mr. Richardson.-The privileges of Parliament have been alluded to. I don't apprehend that the question here has any resemblance to them.-(Mr. B. Wood. Why not?)-Well, be it that the utmost freedom of speech is allow ed; but to go out of the way to attack character-(Mr. B. Wood. No, it was not out of the way; the words might be too severe, but they were connected with the note. It would be a dangerous precedent to receive an action on such a ground.)-If a man's character is injured, if, for instance, a surgeon is injured and obstructed in his career, there must surely be some remedy. The presiding wisdom in our courts is no protection, when the injury is sustained, when the shaft strikes, and cannot VOL. LIX.
be extracted by such protection. I, like all my brothers, am interested in the full freedom of the bar, but there must be a limit. The privilege of parliament is a peculiar species of right that cannot in its very nature be made actionable in courts of law. The plain question here is, if the counsel could with impunity go out of his way, and say, Mr. Hodgson "is a fraudulent and wicked attorney."
Mr. Topping. Does your Lordship wish us to say any thing on the question?
Mr. B. Wood.-Yes.
Mr. Topping.-1 did expect to hear some observations by your Lordship on the novelty of this action. Its tendency and nature are important, not only to the bar but to the client. If such an action can be maintained, very different will be the situation of every client in a court of justice, when deprived of the free and vigorous exercise of his counsel, at full liberty to apply his talents, learning and industry to the cause in which he is engaged. The words in the record are only the opinion, the inference, the comment, which my honourable and learned friend felt at the time to be merited. The facts of the case warranted the comment. Mr. Raine very judiciously and very ably-I observe he shakes his head, but I will say— (Mr. Raine, I read every word,) -if Mr. Raine had not interrupted me, he would have heard me say, in terms no ways disrespectful to him, that he showed great prudence and discretion in not communicating the facts and circumstances of the case. The words were severe, because my hon. and learned friend felt severity N