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uncertain in what he might give offence, wholly abstained from urging what he conceived to be material and necessary matter to his defence, and simply contented himself with reading such parts of his statement as were free from all technical and moral objections. That but for such obstruction offered, and such intimidation held out, he should have urged a train of reasoning, and submitted a course of observations, which he had good reason to hope, would have made an impression on the minds of the Jury, and have induced them to pronounce a verdict of acquittal. The first interruption of the Learned Judge, was for making use of the following words:" It is a notorious fact, that no Counsel at the Bar would undertake an honest defence for a man in such a case under existing circumstances." To which deponent added, that he was ready to go to his dungeon. Upon which the Learned Judge fined him £20. After which, the deponent abstained from making any observations of the like tendency. The second interruption by the Learned Judge, was upon the delivery of a passage of deponent's defence, describing the difference of opinion existing between Deists and Christians in their respective tenets concerning the Holy Gospel, concluding with these words, alluding to the Bible, " Now it so happens, that the Deist considers this collection of ancient tracts, to contain sentiments, stories, and representations, totally derogatory to the honour of God, destructive to pure principles of mơrality, and opposed to the best interests of society."
Mr. Justice Bayley-Can there be any doubt that it was extremely improper to introduce such a remark into a written defence?
Mr. Cooper said it was no part of his province to justify the remark. He was merely reading the affidavit of the defendant as it was stated upon paper.
Mr. Justice Best-I cannot understand what security we are to have for the truth of an affidavit deposed to by a defendant who avows his disbelief of the Gospel.
Mr. Cooper. I know of no objection to the credit of a man, because he is a Deist.
Mr. Justice Bayley-But if a Deist can only swear upon the Holy Gospel, which you know contains-
Mr. Cooper.I am not at present aware that it is any objection to the reception of a man's oath that he is an avowed Deist.
Mr. Justice Bayley.-It is no objection to his oath, provided he swears in such a way as that the mode of swearing
Implies that it operates and has an effect upon his mind as an obligation to tell the truth; but where a man does not at all believe the truth of the obligation by which he swears, I apprehend the case is different.
Mr. Cooper.-It does not appear that this man is a Deist. Mr. Justice Best-It is necessary, in order to verify an affidavit, to shew that the deponent is under the obligation of an oath. For one, I shall object to the affidavit of a man who, not only upon this, but upon all occasions, treats the Holy Scriptures with contempt.
Mr. Cooper. With submission to your Lordship, it does not appear that the defendant makes any profession of his own principles. The Learned Counsel proceeded to read the remainder of the affidavit, which stated, that after the last-mentioned passage of deponent's address to the Jury, the Learned Judge interposed, and said, "I cannot endure this. Respect for the laws must be supported. They are treated with disrespect in my person. I will not sit in this place and hear the religion of the country scoffed at; and I fine you 401. more for that offence." Deponent further stated, that he experienced a third interruption from the Learned Judge, for asserting that the higher orders of society were generally sceptics; upon which the Learned Judge said, "The defendant asserts that which he knows to be false, and I am determined not to bear this calumny. I add 401. more to the 601.; and remember that whatever becomes of this case, these fines must be paid." To which the deponent answered, "I must pay in person, for I am unable to pay in money. I will not offend your Lordship, if I can help it." The Learned Judge replied, "It is no offence to me; it is for the contempt of the Court I fine you." The affidavit concluded by stating, that the Learned Judge, in summing up the case for the Jury, said, that he had remitted the fines, assigning as his reason for so doing, that the object of those fines had been answered, namely, by restraining the introduction of the torrent of blasphemy with which the minds of the Jury were threatened to be deluged. Upon this affidavit the Learned Counsel said he founded his present motion; and he would remark, in the first place, that the imposition of the fines, supposing that the Judge had the power to fine a defendant for any irregularity or impropriety in the course of his defence, did not seem to be justified by the facts as they existed. With respect to the first fine, he would not deny that a Judge had a right to fine for contempt; but he understood the contempt which would
subject a party to finè must be express-it must be such as would bring the Judge or the Court itself into disrespect, or eause an actual obstruction to the course of justice. He apprehended that such was not the case in the present instance; for even if the fiue were imposed upon the defendant for a supposed imputation upon the Bar, there appeared to be nothing in it derogatory to the dignity of the Learned Judge.
Mr. Justice Best.-Let me set you right in that. The facts of the case are far from being correctly stated in the affidavit. I will state the facts as they occurred, and there are those here who will set me right if I state them incorrectly. If I do not mistake
The Lord Chief Justice (after speaking privately to Mr. Justice Best)-You had better finish your argument, Mr. Cooper.
Mr. Cooper resumed, and said, that he did not pretend to vouch for the facts from his own knowledge. He merely stated them from the affidavit as they were deposed upon oath; and he was not only justified, but bound to argue upon those facts as they were so stated.
The Lord Chief Justice.-Most certainly.
Mr. Cooper-With respect to the offence which produced the second fine, he did not feel himself bound to defend the expressions which the defendant had used; but it appeared that the defendant had merely professed to state what were the causes which brought the Deists under the reproach of the Christians, and the offensive passage was nothing more than the supposed opinion of the Deists with respect to a book, to which he (Mr. C.) would not allude. The defendant simply said, that the Deists had formed certain opinions touching that book. It was true he had used indecorous language, which he (Mr. C.) was not bound to defend; but it seemed to him that the passage was otherwise inoffensive, inasmuch as it was nothing more than an exposition of the causes which brought the Deists into reproach with the Christians, and he confessed that, looking dispassionately at the whole of the passage, it would require the genius of a Warburton to extract from it any occult meaning offensive to the religion of the country. Certainly, attending to the object in view, though the language was indecorous, there was really nothing in it which could justly call down upon the defendant so heavy a fine as that which the Learned Judge who tried the cause thought it right to impose. Indeed, he was at a loss to imagine what there was in the passage which
could render so grievous a visitation necessary. With respect to the last passage which had called for his Lordship's interposition, he apprehended that the defendant had not been guilty of any novelty in saying that the higher orders of society were almost all sceptics.
Mr. Justice Best That was not all he said. He said that the Nobility were black-legs, and the Bishops infidels.
Mr. Cooper said, that as to any suppression of what had taken place, on any mistatement of facts, he could say nothing. His motion was founded entirely upon what was stated in the defendant's affidavit, and confining himself to that, he would take leave to say, that there was nothing singular in the imputation of scepticism to the higher classes of society; nor was there any thing in the defendant's remark which might not be fairly addressed to the Jury. He could scarcely take up a book, written by authors, not only Professors of Divinity, but persons who had written with a religious view with a view to the good morals of the age, in which it was not imputed as one of the causes of irreligion, the bad example of the upper classes of society, whose vices and immoralities led the lower classes to imitate their conduct and justify their religious scepticism by the infidelity of their superiors. In no one of these instances did it appear to him that there was any thing to justify the heavy fines imposed upon the defendant in the course of his defence. But even if he were obliged to allow that the defendant was properly fined, supposing the power of fining existed in the Court, sitting in Banc, he was not aware of any such power in a Judge at Nisi Prius. So far as he had been able to make search, he had not found a single instance in which such an authority had been exercised by a single Judge. He had, indeed, found some negative decisions upon the subject, which he had no doubt would have considerable influence with their Lordships, when vouched by the authority of the Judges by whom they were determined. Lord Ellenborough, that venerable and constitutional Judge, when trying Daniel Isaac Eaton, great pains to avoid every thing which could check the course of the defendant's defence. The conduct of the defendant was extremely offensive he was repeatedly checked by the Noble Lord, and warned by the injury he was doing himself, but in vain; he continued to insult the Court, and at length, when checked once for all, the defendant said " My Lord, if you will not hear me, you must condemn me unheard." Upon which Lord Ellenborough, after a short pause said, " Upon more
mature consideration, I am inclined to think, the ends of justice will be better answered if the defendant is permitted to begin again, and read his paper through; for I am convinced that there is nothing in it that can do any harm; it is too gross. You may begin again, Mr. Eaton, and read. your paper through if you please." In that case then, gross as it was, Lord Ellenborough never thought of checking the defendant by the imposition of a fine. Supposing a negative authority of such consequence, to have any weight with the Court, he would be justified in saying, that a Judge at Nisi Prius was not authorized to impose fines upon a defendant for any irregularity or impropriety in the course of his defence. In the case of Richard Carlile and of Robert Wedderburne, both of whom were tried by the present Learned Chief Justice, for blasphemous libels, his Lordship never thought of imposing fines upon these defendants, though each of them occasioned the strong animadversions of the Court for similar contempts to those for which the present defendant had been so severely fined. Backed by these strong negative authorities, he felt justified in saying, that a single Judge had no authority to impose fines, the amount of which could only be limited by his own arbitrary will. The Learned Council then proceeded to argue with considerable eloquence and ingenuity against the principle of fining persons in the course of their defence, when on trial for penal offences. A more tremendous -a more awful, and a more dangerous power could not be vested in a single Judge. A man brought to trial for an offence affecting his liberty, and even his life, might, by means of such an engine, be compelled to abandon his defence, and submit himself to a verdict of guilty, rather than subject himself to the imposition. of fines which must leave his wife and children to want and desolation. Every good man would yield to the impulse of those feelings, which such tender ties are so well calculated to excite in the human breast-feelings, which make men as much cowards as slaves! By such means of intimidation, the most innocent man might be compelled to abandon his defence, rather than expose the dearest ties of life to the influence of poverty and wretchedness-to nakedness and beggary. Nay, a good man would not hesitate under such temptation to sacrifice his honour, his character, and his life. He did not argue against the power of the Court to fine for contempt; he would be sorry to maintain such an absurd` proposition, but what he objected to was, the exercise of such a power at such a season, when it might have the effect of