l

Sign, until his hands wort fortified with affidavits,just as that .

1‘ I O as

o ‘ who ctr-Io government}, Vol.4, p, 150, now, was ex opiate prosccu- pi‘iblishcd by some other bookseller, he had piJrchased :1}

tion has been issued against me for “publishing, 0r cruising to be published,” an alleged libel, which was nevel‘ P'fm've‘ls against Sir Henry and his Executive Council, who are not exactly the “King and his Government,” limvsoever much they .would like to betliought so; and, gentlemen, by the oaths you have this day taken, agreeablyto the high authority of Blackstone, you cannot return a verdict of‘guilty against me, in this attempt to realize the fable of the frog and the ox. Attempts have been made by despoticgovornors and their "sycophantic Executive Councils, to Introduce er oflicw prosc- outions'into the Colonies; and it would liayo been strange had supple Judges not occasionally been found to sanction; the illegal proceedings—proceedings, “ler and far between, which have invariably been quashed by the independence

' iju‘ries.’ In the old Colonies I only recOIlect one attempt ' of the sort, which Was in New York—of course, before the revolution, which attempts ofthat sort always hasten. A Printer ofthc name oneugerhad printed and published an

- alleged libel, for which he was prosecuted by ex ofi'mo, and fined. by thejury, who were determined that that unlawful badge ofslaveryslioiild not be entailed iipou their children.

,. During a residence of25 years in the Colonies,l have only known three ex qflicio attempts to deprivea persop of'the be— nefit ofa grand jury upon a criminal charge, of which this is the third, and I believe the first in this Colony. The other iwo to which Iallude were, one in-New Brunswick two years ago, against the editor ofth’e St. John Chronicle, for an al- leged'libel printed and published against Sir Jonn Harvey. The crown lawyers, who cannot sometimes see much be— yond their noses, thought the “common law” established their right to do so, which was contrary to the opinion of Sir John’s best friends. The verdict was unfavourable to Sir John, as almost every body had surmised. The other case occurred many years ago, when l was in the West In- dies ;_and‘at this distance oftime I do not exactly recollect the circumstances oftbe case; I rather think it occurred in the Island ofSt. Kitts, butrain not positive—The party. prosecuted procured from England the opinions of someol thefliost eminent lawyers upon the subject, and those opii'i— ioujsibeing unfavourable to the colonial exercise of ear oflicw power, the prosecution, I heard it said, fell upon that ground along. , ’

, In the stormy political period which preceded and ac- companied the late unhappy disturbances in the Cauadusq notwuhstanding the unbounded scurrility ot'the opposition press, which even threatened the integrity ofthe empire; and-notwithstanding that the criminal law ofEngland had ,boon transferred to Canada by express statute, yctI never

"heard ofa single ex oflicw being used for political libel in

either oftlie Provinces; and simply because it is unlawnt , so todo. Nay,so cautious were the Groom lawyers of'cmn-‘ mining themselves, that Mr. Ogden, the Attorney General, | a‘man of great talent and learning, would not, in any iii-

' stance, proceed against persons accused even of active sodi-

‘Qminent lawyer Lord Campbell says the court of Queen’s Bopch always is in England, before it will grautan informa- tion, but which has not been attended to by this court in the presentinst'anco. The reasons for muzzling the press and stifling the voice of public opinion by this prosecution, are I too well known hero for me to enlarge upon; and that the government of this small colony should have so hastily grasped at the royal prerogative, only verifies the saying; that « ‘ “Fools rush in where angels fear to tread." -

I shall now consider the matter ofpublication. Lord Camp- bell, in asking fora committee in the House of'Lords. to consider the passing of a libel law, describes the existinglK practice (for you will observe, gentlemen, written law there is none) to be exceedingly unsatisfactory, vague, uncertain and 1 ‘t'nefieclivc. Almost any thing, in times long past, has been held to be publication—a person has been accused of pub-, fishing a libel by repeating what he had heard, by laiigliingl at, and I am not sure but by listening to, ajest at the expense ofGovei‘nment. Positive statute law upon the subject there is none; and precedents drawn from the decisions of tyran- nical judges and ignorant juries may be found in English legal historyto consider almost any thing a libel. But pre- cedents, and especially precedents such as those, you will recollect you are not bound by your oath to follow ; and in tho absence of all positive law upon the subject, how silly,

‘ how; absurd and how wicked it is, to endeavour to force

those opinions into legal practice now-a-dnys. So daring an attempt to violate British liberty, as the celebrated orator Sheridan said in the House of Commons, would be tanta- mount to a dissolution of the social compact, and the people might constitutionally proceed to remodel their form of go- vernment—it might create revolution in Britain and rebel- lion in North America. At present, by publication is un- derstood, papers or books primed and circulated anng the people ; and whatever iprecedont may be drawn from what it called common law, that only can be considered publica- tion ofsnch a matter as a political libel. So lately as Lord Liverpool’s administration, judges held that even to carry letters to a post office would be sufficient to convict; hilt be itramarkcd, allthose letters alluded to had been printed and circulated among the people; and ifany CI'OWD'pl‘bSBCU- tion ofa recent date can be pointed 0th which has been on- torod upon a written document having beensem only by three persons, until it, ora copy, fell into the hands of the Attorney General to prosecute upon, like the present action, I shall merely say it is a gross abuse ofpower.

As [previously remarked, 1 do not recollect of the British

' Government having prosecuted by ex oflicio for alleged libel for the last twenty years; and gentlemen, agreeany to the oath you have this day taken, you cannot conscientiouslv say that the Resolution was published—that is, made public—— because 1 fuel certain that not one ofyou knew What it was until you entered the jury box. Nay, so far from having been published, you may have seen by a late Herald, that it -—a paper which has never taken part against the people— daros not yet venture to enlighten the public upou.the sub- jeet matter of the prosecution—a political condition worthy ofthe infamous court of Star Chamber, whence er ofiicios first issued, or oftho secret devices ofthe Spanish Inquisition.

Indeed, in times not very remote, when newspapers were not in the hands of every body, news and information of every sort circulated with extreme slowness among the peo- ple, and a smaller degree ofpuhlicity might not unreason- ably be held ‘to be an offence than at the present dav, when the state ofsociety is so much changed; and as Lord Camp-

‘ bell says—“assuredly the common law which existed in

“ the time of Richard the Second was not adapted 'to the “wholly altered circumstances of the nineteenth century.” Publicationwvas aucicntly held to consist in reading to a number of people congregated ’togeth‘er. For instance, so lately as James the Second's time, about 150 years ago, (when newspapers were not in general circulation,) when the seven bishops presented their celebrated petition or remonstrance,‘it was only in the presence ofsuch attendants as a monarch generally has in his private cabinet ; and had he allowed it to reniainthere, he could not, consistently with‘ the ideas even of those times, havc'prosecutcd them for what he was pleased to allege was a libel; but in an evil hour for liimselfand his family, he called them before his Council, and the Bishops having there admitted the paper to be theirs, that was considered sufficient publicity for him to commence an ear qfl'wio prosecution upon, which for ever' sealed the fate of the unfortunate Stewart dynastv. ‘

Lord Denliani, in his speech upon the law ofilibel, in the House ofLords, on the 19th Feby. last, mentions a case which] presume was prosecuted in the regular way by grand jury indictment. It is as follows. :—- a - ‘

“ln'1798, Mr. J. Johnson, of St. Paul’s Churchyard, was “convicted of'publisbing a libel, because his shnpman had— “sold a pamphlet written and published by Mr. Gilbert “ Wakefield, which pamphlet he had refused to publish, and “ be had given orders that it should not be sold at his shop. “ His sliopinan,_ however, sold a copy ofit, against his ex- f‘ press prohibition, by mere accident, and thus a respecta-' “blc man was sent to prison for eight months, because, in “ the eye of the law, he was considered the publisher of the “libel. This would not be the case at llw present time - still it “Was desirable there should be no doubt or risk u,pon the stagnh‘ject.” Upon this I would remark, that an accidental salol do notf pretend to- understand, but his abundantly

ltrary authority of ex aflicio prosecutions, the introduction of

mon way of trade, and that after he had forbidden the sale. _~It is evident that had his shopman, for whoseacts be was legally l'hspcnsible, sold a printed copy of it, he - would then have been found guilty, and now, agreeably to Lord Den- liam’s express declaration, would not be so, even had ins; sliopman sold one. Therefore, gentlemen, agreeably to this: hiin authority, you caiiuot,’0n the oaths you bpve this taken, find me guilty for acopy of the resolution being dc- positcd' snueg in the Islander (illice. ,Bnt Lord Deuhains quotation applies to my case Wllll' double force. Nobody, even in 1798, a dangerous period of the French Revolution, ever dreamed ofprosecutiug the shopman, the servant who issued the prohibited ai'ticleragamrl the commands of‘his master. Now, I ain the servant, tlic paidscrvaiit, of my con- stitueuts, and carried the Resolution in question to the Printing Offices, while in session, in obedience. to the coni- ninnds, of my u'iasters‘; therefore, if the Attorney General did not choose tojhring his prosecution against the pri‘ucif pals in'the transaction, he should not have meddled‘ with It, at all. I-would not trespass fiirtlier on your time, (by on: dcavonring to prove that publication and non-publication are convertible terms; but Icannot oniit quoting one In- stance, whcro the law officers supposed that the Circum- stance of a unin having an obnoxious political pamphlet in his possession for sale, would warrant a prosecution, cause the case powerfully exhibits the dreadful responsibility which must rest uponthe heads ofthat jury which firstcstab- lisbes a precedent for proceedings so despotic and unconsti- tutional as :7: oflicio informations. It was about tlietiine of Houe’s trial for publishing an alleged blasphemous and pub- tical libel, that Robert Swindells, a man who hadserved his country, endeavoured to eke out n Scality subsmtcnt‘c for himself, hts wife and two children, by the sale of a few cheap books and pamphlets. In the middle of a bittciawmtar night, this man’s cottage was invaded by some .brutal bai- lifl's, his little furniture ‘scattcrcd about and injured, and every description of property ransacked and ravaged,' in search oftlio pretended libel. His wife and children were forced, almost naked, into the cold, in order that it might be ascertained that nothing dangerous to the stability of the Government was concealed in the bed—a government, re- mark you, which had hidden defiance to all the bayonets of Buonaparte, only a very few years previously. The wife and one child died in consequence oftlie ill-usage, cold and alarm of that night, and the other child was sent to the parish workliouse. He was sent to Clieslerjuil, and, like a felon, loaded with 64 lbs. of irons, and after a long deten- tion, the Attorney General felt constrained to discharge him, without trial, and without compensation lbr the terri- ble injuries he had sustained, without venturingr to insult a jury by trying to cram down their throats the absurd doc- trine that a pamphlet or other work deposited quietly in a‘ shop amounted to publication. About that period, Swin- dells’s was by no means a singular case, but instead of hav— ing the desired efl'ect, they oulv stimulated the people to a more determined opposition. Some of the parties prosc- cutcd wore compelled to attend, and tliroWu into prison, hundreds of miles from their homes, and otherwise ill- treated, and all inflicted under the irresponsible and arbij

supply ofit in the com \Vakefield's imprisonment,

which into the Provinces the colonists have so resolutely resisted. And if you do not frown down, by your verdict this day, the audacious attempt now for the first time made. in this Colonyrby l'lislilxcellency Sir Henry Vere Huntley, that capital judge of unflinching impartiality, and his Exe- cutive Council, upon the rights and liberties of the people ofthis Island, you will earn and merit the deep curse of your fellow colonists for hanging the fetters ofSwindelIS' upon their and their children’s limbs, and then this colony,- comparcd with the rest, would resemble a crouching slaver

“is!

.W

knows that it is now the proud privilege of British subjects.

,the rights ofilic peoplc—l mean our able Governor General,

in the company oferect peerinen, or be like u girdled trunk among the vigorous 'trees ofttlic forest. But, gciitleinen,‘l, entertain far too ‘ high an opinion ofyour senseof'jnstice, 'andwliat is this day expected from you, as the guardians ofthe liberties 'of British subjects, than to suppose, fora sin,- gle moment, that you would supersede the harmless and

beneficial use of the tongue and pen for the knife oftl the rifle of the backwoodsmnu, which must ,

Spaniard or inevitably follow the suppression offifeo tlis(:iission.. Up Hone’s trinl, it was strongly urged that the prosecutor infla case ofalleged political libel should take care that‘be hint— self were free from stain. Hone was permitted by Loril Ellenl)0i‘0iigli'(wlio disliked him and his principles) to adv dress the jury upon that ground. This action, then, is gé- nera-lly understood to have been entered against me by the Lieutenant Governor, acting probably by the interested ad- vice of party or personal malice, but I consider him to be morally responsible. Hone, very reasonably, thought it hard that Mr. Canning, who had wi‘itten a political parodvon the Bible, should be one of a ministry to prosecute him for wri- ting a parody on the Book ofCon'unon Prayer, so, gentle- men, ! deem it very hard to be prosecuted for obeying my constituents, in the exercise of our undoubted constitutional right, and at what would otherwise have been no more than a bit of waste paper trumped up into a criminal prosecution for libel, while he (Sir Ilenry),last year, wrote, printed and published a series of libels upon the majority ofthe late House of Assembly. [Herb the Chief Justice interrupted the defendant, stating that species of argument was in— admissible] Hone was permitted by Lord Ellenbo- rough to make a similar defence, but I do not wish to persist, and will submit to the decision of the court. Gen- tlemen, I am prepared to prove, that you have to decide up- on whether the Resolution be a libel or not, as well‘as upon the publication ;but as that point has been conceded by the Solicitor-General, 1 shall pass it over. Regarding the truth or falsehood ofan alleged libel, I may remark,.‘that the rules oftha English Courts, which those of this country pretend to fbllow, will not allow a criminal prosecution to be filed, if the defendant be enabled by affidavits to establish the truth of his charge, as appears from Lord Campbell’s speech in the House ofLords.

The CHIEF JUs'ricn remarked, that perhaps Mr. Mac— lean was not aware that there were two methods of pro- ceeding by information; and that when the Attorney Gene— ral filed an information upon his own responsibility and au- thority, as he had done in the present instance, affidavits were not required. . .

Mr. MACLEAN continued, it might be so, but Lord Camp— bell inakes no distinction. There is no written law or enactment which declares that the truth must not be receiv- ed in justification, and the present custom of refusing it has rendei‘ed‘the existing law of libel totally inoperative. Corn— mon law is merely a reference to previous; decisions of Judges and Juries, which bear upon the case in point; but nojury is obliged by the oath they take to receive the opinions offoriner juries as law upon the subject ;, and in matters of common law, ash: is called. they may therefore follow the dictates of their conscience, without being tied down by stav tutc law to decide agreeably to Act of Parliament. And in so far as the common law of criminal libel is concerned, nearly as many opinions may be quoted in favour ofrcceiving the truth in justification as the reverse; and therefore, if you be satisfied oftho truth ofthe Resolutioii,y0u may, agreeably to your oaths, return a verdict ofnot guilty, upon that ground alone. Upon this subject, Lord Campbell, in the debate before quoted, in the House, ofPeers,on the 19111 Feby. last, says—“ The criminal law Commissioners had givcn it as “their opinion, that, in order to make a libel indictable, it “must be false as well as libellous. In 1705, Lord Holt laid “ down the law to the same effect.” “ In the casesof King “a. Einnerty, and in that of'Sir F. Burdett, it had been de-. “ aided that the truth could not be received in mitigation of “punishment. By sueh a rule, the law confounded those “who were guilty, and who Ought to experience certain “punishment, with those who had .not incurred any moral “guilt, but had only stated what was the truth. Mr. Sturkie, ‘.‘ who Was placed at the head ofythe law commissioners,.had, “in his admirable treatise on the lawofevidenoe, given it as “his opinion that, in the present state ,ofthe law, no jury “could punish alibeller, except on the, supposition that tho “ libel was proved”—that is, proved to be false. ' It is hardlv worth while to quote the opinion ofJudges before the Reva“? lution of 1688, ,when their offices were dependent upon the

clear,‘that'afle'r Wakefield’s celebrated pamphlet had been

will and caprice of .tlteGoverhmeu’t ; but, it is remarkable,

crows f

‘ L...;_.- _.,_.__».____z__._

such a termination to their attack, determined to try another charge; and this time they held together so firmly, that the slaves were ntlirst shaken, and finally; routed. They fled In every direction, leaving 50 dead. ’This advantage was doci- sive, for in a few hours the insurgents had lost all. 1pm,,“ ance of organization, and the day was spent in hunting them down. The next day everything appeared .at an end, when intelligence was brought "‘3‘ 159 negro“ from the Cardinal railroad were advancing, spreading fire and destruction on their passageiéj'l‘héj were 'eaiuly dispersed, and 63 of them killed. WAfter thesedefeats, the Wood and sugar-cane fields were filled with fugitive iiegrocs, against whom m {min pursuit. was instituted. ~By a BIMQOfMlCfllIHOI; bimuts endeavoured to screen them as much as possum, ‘ from the search that was made, offering them an asme amt? _, pardon. Tranquillity was soon restored in the Brando trict, but new insurrections were spoken ofun the direction”- of Manriqugmwnere a niimberof-the"'*fngmves had cmv ed- The Governor of Matapzas'went there with op detach- ment of'Di-agooiis. 'Out of 550iiegroes engaged in the n; V0“: 150 or 200 wore either killed or, put; an opd to them. selves in the Woods. About 100 more Were‘m‘a‘de _ prmoners.’ ' . A Doe KILLED av A Ran—In May last Mr. William Moors, , ,, :

. , .4 . ,. trial of the seven Bishops, ,previquslyquoted,‘ in James the Second's time,Judge‘ Powell said, to makezit a libel, it must he '“ false and maliciousf’ and declared that; ill he saw no falsehood or malice in it, that it was no libel. Therefore, gentlemen, having quoted to you,l believe, quite as many and as high opinions in favourufreceiving the trutb‘ln justifiCntiou of alleged lible, as the Solicitor General has 'done on the co‘ntrai-y side, upon that score alone you cannot do otherwise than bring in a verdict ofuot guilty, especially as thetrutb ofthe charge is tacitly admitied in the informa- tion. . :, . - , r ,, .. .- ,..‘.'. :,

Whatever may have formerly been the case, every body

that upon the

freely to express their opinions oftlie act's oftheir rulers, be those opinions right or wrong, true or false; otherwise, we wc'iuld be slavés to the public servants, as our public servants are doing their best to render us here this day. It is quite as absurd to make it actionable to disciiss-thrmerits or; de- merits of public servants, as it would be for a thigfcaugbt in the fact to sue a mal’tfm' libel, because he was eviileiiCe that lie saw'liim stealing. Tho circiiinstance'of tliepludge not allowing the defendant to‘provetha truth o'fthe alleged libel, lias'just liad,the efii-JCE which might have been antici-

pated. 'In the absence of all Statute law to the effect that at, Collie-bridge, caught two large rallinfin trap, and the defendant cannot be. allowed to prove the truth Of his them to Mr. France, a neighbouring public-n, who keep! I.

charge, juries follow the dictates of their consciences, and refuse to find ania‘u guilty, and consign him to punishment. for having' told the truth ; so that, in point of fact, the law of. libel which we are acting upon to day has, in England, died a natural death. [Here the defendant read extracts from Lord Campbell’s and Lord Brougham’s speeches in confir— mation ofhis‘ statement] I am sorry to say, Gentlemen, there is more of‘ personal ,fcclii'i,i,r in this prosecution. than public utility. You may haveobserved that parties III, the House of Assembly'are IS and 11. Of the 13, not less than 11 have received. lll)})0llllnlenl$-—-‘10:Of‘llielu iiivolvingav,“suf-~ ficieut emoliirneiit to render it an object in this poor couri- trV ; and ofthe minority, one, for servinghis constituents agreeably to his conscience and their eXpocta‘tious, is drag- ged away from his home, at a considerable luss both ’of time and money, to answer before you for the most frivilous po- litical prosecution that disgraccs tbé annals ofthe British Colonies in the present age. The practice in England now is, ifa groundless charge be made against the Government, for another pi'ess—a-supporter of Government—to expose the falsehood ofit, and so no harm is done; and ifthe charge be true, people are just permitted to say on, till the fault be amended, or the subject forgotten for some more exciting topic. The people of England andtbe. Colonies ha‘Ve , no writtoii Statute law to enable them to discuss the conduct of Government, but habit has rendered ‘it, by long usage, just as much a constitutional right as any law ofthe laud,, and it is a righlwhicli cannot be shaken, or with it must be shaken our liberty. Lord Campbell’s new libel law seems, intended to suppress improper attacks on private character, , and to colifirm the right ofdiscussing public affiiirs. He says ’ he “had often been placed in a perplexingsituation, when “asked, as be had often been by foreigners, by what law “ were we enabled to discuss the conduct oftbe Govern— “ ment P” In fact, We did it Without any law, but the com- mon law ofcustom. That the people in the Colonies have an equal right, has been distinctly and wisely. avowed only last month by the highest authority in the British Provinces, and to whose opinion we must all defer, when he concedes