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intimidating a defendant from offering an honest, a bold, and maply defence on his trial. The slightest aberration from the strict line of correctness, might be construed into an of. fence, which, punished with a heavy' fine, might palsy the holdest nerves in the vindication of truth and justice. Suppose a servile Judge fixed upon by a corrupt Government (for unhappily such Judges bad existed, though now be was sure such did not), to try a seditious libel, or the offence of treason, where the offender was an obnoxious person whose fate was resolved, but whose crime might merely be bis public spirit, what was to prevent such a Judge from cavilling at the boldness of his tone--the daring of his spirit-and submitting him to the arbitrary fine of £.1,000, and thereby playing upon the weakness of nature, urging him to a voluntary confession of guilt--to self-expatriation or self-immolation on the scaffold ? It was impossible for a man, however just bis cause-however innocent bis conduct, to help succumbing under the the terrors of repeated fines, and at last yielding to his fate from the best impulses which adorn the nature of man.
These considerations upon general principles, added to the strong negative authorities to which he Feferred, would, he doubted not, have due weight upon the mind of the Court. There was one other observation to which he would divert its attention. It appeared from the affidavit, that the Learned Judge in his summing up had remitted the fines. He could not help in ferring that this remission arose from an uncertainty in the Learned Judge's own mind as to the correctness of the course he had taken ; for if the fines were properly imposed, and the defendant bad been guilty of any offence, be deserved punishment, and the fine should have remained in operation as a penalty to bim and an example to others. But both these purposes bad failed; for the punishment was remitted and the example was nugatory. The defendant had done nothing to redeem his past offence, and if there was mischief in his conduct, that mischief remained in full force, and the reason assigned by the Learned Judge for remitting the fines, was wholly inapplicable. The defendant ought to have been committed, and not fined, if he had been guilty of any contempt. Under all these circumstances, and for the reasons which he had humbly urged, he trusted the Court would grant a rule to shew cause why a new trial should not be granted.
After a short conference with the other Judges,
Mr. Justice Best-I am the last man in the world to wish to resist the defendant's present application if he is fairly en:
titled to it. I shall do upon this occasion what I shall upon all other occasions where I happen to be the presiding Judge in a case in which a pew trial is applied for, namely, I sball abstain from intimating to my Lord Chief Justice and my Learned Brethren, any wish or opinion of mine upon the subject, and leave them to dispose of this case as they think proper. But for the closing argument of the Learned Counsel, I should not bave said a syllable as to my opinion now, or as to my opinion at the time of the trial. The Learned Counselhas supposed that I remitted these fines because I doubted of my authority to impose them. I beg to state most distinctly, that I entertain no such doubt, and that I shall never doubt aboùt it until I am told by the House of Lords that I ain wrong. Having said that, I shall say no more upon that part of the case. Bụt I wish to state all that passed at the trial, because the defendant's affidavit, accord. ing to my recollection, gives a most unfair statement of what did pass. At the outset of the ease, the defendant began his defence, certainly with a view, as I thought, to provoke me to do what the Learned Counsel has suggested 1 ought to have done. I believe the defendant wished, from the man, ner in which he began and conducted his defence, to provoke me to commit him, and thereby to do that which would have excited a suspicion as to the result of the trial, though I beg to say, that if that had taken place, there would have been, in my opinion, no such suspicion ; for I should not have been warranted by the circumstance in discharging the Jury until they had delivered their verdict of guilty or not guilty. If the conviction had taken place in his absence, it would have been said that the proceedings were unjust, and therefore, I determined not to fall into the trap, which I am now convinced was laid for me. I thought at the trial, and I still think, there was another legitimate course open to me. It was not necessary. I should have removed him from pleading his defence; but having the double power of fining aud imprisoning for a contempt. I preferred the power of fining, because that left the defendant įn a situation to complete his defence. If I have used that power for the purpose of intimidating him, I am responsible for such an exercise of power, and I shall be ready to answer it. If any Judge is capable of using that power for the purpose of intimidating a party before him, he ought not for one hour longer to remain on the bench. But that I did not use the power for any such purpose, I am sure must be apparent to every one present. When I was told tbat I had nothing to
do in the Court but merely to keep order, I passed that insult over without any observation, but when I found an attack made upon the Bar (most unquestionably an unjust one), I merely told the defendant, that I could not allow him to attack that body, or to attack any persons, and that he must coufiue bimself strictly to the latitude allowed to every person who chose to take upon himself to conduct his owri defencc. I further told him that it was my duty to keep him to that course, and that if he departed from it, I should be obliged to use the means I had to restrain bim. I informed him also, tbat he could say nothing wbich could give personal offence to me, but that I was bound by my oath to deliver the law, and to protect the law from being insulted in my person. Immediately after that caution, he told me that I was to prepare his dungeon for him. I thought then, I think now, that was language which no Judge could endure without punishing it if he had the power of protecting himself from insutt.
Mr. Gurney interposed, and reading his notes, said the words used by the defendant were these :-
Lordsbip has your dungeon ready, allow me to furnish you with
Mr. Justice Best.--For that direct insult I fined bim twenty pounds. I told him that if such insults were repeated, and my orders were transgressed, which were to confine bimself to his strict defence, I should fine bim as often as he offended. He presumed to attack the religion of the country, under which I was administering justice. I told him it would not allow such an attack to be made, and I fined him £.40. I told him again, that in the course of his defence he was not to go out of the way to attack any body who was not present to defend himself. Some time after that, he thought proper to say thus the nobility of the land were black legs, and the bishops were sceptics or infidels. I think that was what he said. I told him that was a transgression of my order, which was to confine himself to bis defence; and I said I should fine bim again. Then it was, I added, as a caution to bim, that wbatever became of the prosecution he must pay these fives; but I beg to state, that at the time I inflicted every one of these fines, I thought it my duty so state this to the defendant, that I wished him to state whatever he conceived to be material to his defence, that I should with great patience hear what he had to say, provided he did not question the authority of, or insult the religion under which I was acting. I thought it right to do
this—as a Judge I ought to do it; and God forbid the defendant should not have the advantage of every thing that could be properly urged in bis defence; but at that moment I most conscentiously thought it was not only my duty, but that I was bound by my oath to inflict these penalties. If I am wrong, I have taken an erroneous view of what I conceived was my duty, and so far the defendant ought to have the advantage of the error. But I cannot agree that I remitted these fines in consequence of entertaining any doubts of my authority to impose them; for, after mature consideration, I never can bring myself to doubt, and I think there would be an end of law and justice if there could be a doubt that the Judge has such a power. I had remitted the fines because they had the effect of preventing the immense mass of papers from being read, which the defendant produced, and which from the sample produced were no doubt replete with blasphemy, indecency, and profapeness. The defendant apologized for what he had done, and stated that he was not in a condition to pay £10. That induced me to remit the fixes after the object for which they were imposed was attained. I did not wish that any act of mine should be attended with any serious consequences to the defendant, after the object in view was accomplished, namely, that of bolding out a threat which should induce the defendant to conduct himself in a decent and proper manner.
After the other Judges had remajued in consultation for a considerable time,
The Chief Justice and Mr. Justice Bailey delivered their opinions seriatim, declaring most distinctly, that a Judge at Nisi Prius was empowered both to fine and imprison for a contempt of Court--a power which was incident to every Court of Record; but inasmuch as it was suggested by the defendant that the effect of the fines was to intimidate him and impede the due course of his defence, the Court was disposed to grant a Rule to shew cause, in order to see, upon reference to the indictment and to the Judge's report, whether there was any just ground for such a complaint.
Mr. Justice Holroyd, who came into 'Court during the latter part of the discussion from the Bail Court, delivered his opinion in concurrence with the other Judges, as to the power of a Judge at Nisi Prius to fine and imprison for a contempt.
Mr. Justice Best also repeated his opinion ip favour of the same right.
Rule to shew cause granted.
THE KING V. JANE CARLILE.
This was an indictment tried before Mr. Justice Best, at Guildhall. 'l be defeudant was found guilty of publishing and uttering two blasphemous and seditious libels; the one being entitled “ Sherwin's Life of Paine," and the other, the 9th number of “ 'The Republican."
Mr. Hill now moved in arrest of judgment, upon the ground of a flaw in the indictment. The indictment was endorsed, by the Grand Jury," a true bill upon both counts;" wbile, in fact, it consisted of three counts; and Mr. Hill relied upon a case in Elderton's Reports (Ford's case), in which it had been decided that the endorsement formed part of the indictment.
The Court thought it would be better to grant a rule with the alternative either to arrest judgment or to quash the indictment.
Notice had been given to produce the jridictment; but the proper officer not being in court, the Lord Chief Justice directed that the rule should be drawn up, upon reading the original indictment, and the endorsement of the grand jury thereon.
A motion was made yesterday in the Court of King's Bench, which involves a question of the highest coustitutional importance. Its object was to obtain a new trial in a case of conviction for a blasphemous libel, upon the ground of the Judge, Mr. Justice Best, several times interposing and fining the defendant, in the course of his defence, for onstructive contempts, which consisted of what the Judge deemed offensive observations. The Court granted a Rule nisi, with a view to ascertain, whether the defendant, in point of fact, was intimidated by the repeated fines imposed upon him, but at the same time gave it as their opinion, that Judge at Nisi Prius bas the power of thus fining a defendant, and that no other Court can take cognizance of the act.
If this be law, it is incumbent upon some independent Member of Parliament to bring in a Bill to deprive the Judges of this dangerous power. It does not appear, that any other instance is known of such power having been ex