or to acquit him. But the repetition of fines overwhelmed a defendant altogether; he became agitated at what had passed, he dreaded what was to come; he found that some parts of his defence were objectionable, and he had no time to separate that which was dangerous from that which was likely to do him service; and the consequence must be, as it had been in the present case, that he would become incapable of doing justice to himself, and that a verdict would inevitably be taken against him. From the course which Mr Justice Best had taken on the trial, of remitting the fines before he summed up the evidence, it did appear to him (Mr Cowper) that his lordship, at that time, felt some doubt as to the correctness of the course which he had been pursuing. The remission of those fines he could not but consider as evincing some uncertainty in the mind of the Judge; and upon that uncertainty, as well as upon all known authority, and all received and acknowledged principle, he prayed the Court that a new trial might be granted.

Mr Justice BEST.-As I should be the last person in the world to seek to preclude the defendant from the benefit of a new trial, I shall not intimate to my learned brothers any wish upon the subject; and, indeed, but for the last argument employed by the learned counsel at the bar, I should have remained silent altogether upon this question. In answer to that argument, I beg to state most distinctly that my remission of the fines imposed upon the defendant arose from no doubt of my authority to inflict them; I never did entertain the slightest doubt upon the subject; and, until I am told by the House of Lords that I am wrong, I believe I never shall. That part of the case I now dismiss altogether; but I will endeavour briefly to state, as they really occurred, the facts which the defendant has mis-stated in his affidavit.

The defendant began his address to the Jury, with a view to provoke me into doing that which has since been suggested by his counsel to commit him. I suspected his design at the time, and what has passed since confirms me in my opinion. I thought that for gross contempt I had power to punish by fine or by imprisonment; and I preferred the former, because it left the defendant in a situation to proceed in his defence. If it be true that I made use of my power for the purpose of intimidation, I am responsible for the wrong; I am ready to answer it; and I say, that if any judge could be capable of using such a power for such a purpose, he is unfit to remain one hour longer upon the bench which he disgraces. That which I did I thought myself bound to do by the oath which I had taken. If I have done wrong, God forbid that the defendant should not have the benefit of my error. But it was not in consequence of any doubt that I remitted the payment of the fines. I had stopped the reading of a paper, which, from the sample I had had of it, appeared to be full of blasphemy and libel. The defendant had apologized for his fault; and he had stated that, which of itself was a sufficient inducement to what I did-he had stated that the fines would condemn him to imprisonment for life.

At the conclusion of Mr Justice Best's explanation, Mr Justice Holroyd came into court, and the three judges, the Lord Chief Justice, Mr Justice Bayley, and Mr Justice Holroyd, conferred together for near 20 minutes.

The LORD CHIEF-JUSTICE.-As at present advised, I have not the slightest doubt of the power of a judge sitting at Nisi Prius to commit for contempt of court, nor have I any doubt that it is competent to a judge, and sometimes is his painful duty, to impose fines upon a defendant, if he can in no other way restrain him from converting his de

fence into an attack upon the law or the religion of the country. But it is said by the defendant, that the fines imposed upon him intimidated him from pursuing that which would have been a legitimate line of defence. Of this we cannot regularly and judicially judge, unless we had before us the indictment, the evidence, and all the previous circumstances of the case. For the purpose, therefore, of having the facts before the court, and of discussing a question which is in itself of great importance, we shall grant a rule to shew cause, with an understanding that it is to come on in the present term.

COURT OF KING'S BENCH.

November 28.

Mr GURNEY moved the judgment of the Court on Davison.

The defendant put in two affidavits; the first from Mr George Canning, speaking to his intimidation on the trial, and to his general good character; the second from himself, repeating the matter contained in his former affidavit upon which the rule nisi was granted; referring to an appended paper, which contained that legitimate deference which he had been precluded at the trial from employing; and affirming that he had sold the second publication, the Republican, in common with every news-vender in

London.

Mr Justice BAYLEY, in pronouncing the justice of the Court, adverted to the ground upon which the rule nisi for a new trial had been granted. Looking at the nature of the libels in question, it appeared to his Lordship that the defendant could entertain no hope of acquittal, except by shewing that he was not the publisher of them. The course taken by the defendant had been entirely opposite; and it was the full opinion of the Court that he

had not sustained the slightest prejudice from any thing which had passed at the trial. The learned judge then went into an eloquent exposition of the truths and merits of Christianity, and dwelt upon the dangerous tendency of libels like those in question, which attacked religion for political purposes. The sentence of the Court was, that the defendant should be imprisoned in Okeham gaol, in the county of Rutland, for a term of two years; at the expiration of that period to find securities, himself in 2001. and two other persons in 201. each, for his good behaviour, during a further term of five years; and to be imprisoned until such sureties should be found.

COBBETT FOR LIBEL ON CLEARY. COURT OF KING'S BENCH.

December 5.

Mr Chitty opened the pleadings. Upon the 10th of April, 1808, the defendant, William Cobbett, wrote a letter to Mr James Wright, containing certain reflections upon the character of Mr Henry Hunt. The letter so written was read upon the public hustings by Mr Cleary at the Westminster election in 1818. The defendant then, notwithstanding his having written the said letter, published in his Register of the 5th September 1818, a certain libel upon the plaintiff, intimating that the letter which the plaintiff had read as his (Cobbett's) letter had not been written by him; but that it was in truth a forgery, and that the plaintiff had been concerned in forging it. There were other counts for general aspersion of the plaintiff's character, and the damages were laid at 3000l. The defendant pleaded that he was not guilty.

Mr BROUGHAM observed, that there needed but to name the defendant, William Cobbett, to bring before the court the man of all others whose attack upon individual reputation was the most to be dreaded; a man whose talents it was scarce possible to overrate; whose abilities could only be exceeded by the zeal with which he exercised them; and even whose zeal was hardly so remarkable as the utter unscrupulousness with which, upon any and every occasion, he threw his tremendous powers into action. The comparatively unprotected individual who now appealed from the defendant to the jury was a gentleman little known to the world, a native of the sister kingdom; and, in fact, almost a stranger in the country in which he lived. Since his arrival in England, Mr Cleary had taken part in the politics of that part of the empire in which he had become resident; and being an elector of Westminster, he had exercised the invaluable franchise which he possessed rightfully and conscientiously. In the course of his political efforts he had become connected with Major Cartwright, a person whose long and laborious life, and uniform inconsistency-Mr Brougham begged the worthy Major's pardon, consistency he should have said, but he was thinking of another individual, whose inconsistency was as obvious as the Major's uniformity-but whose laborious life and steady adherence to one class of principles could not fail to command the respect of those who, widely perhaps, differed from him as to the soundness of his doctrines. Living, however, in habits of intimacy with Major Cartwright, and enjoying the hospitality for which that gentleman was celebrated, it was natural that Mr Cleary, when his friend was proposed for Westminster, should be found in the ranks of his supporters; and out of the plaintiff's exertions upon that occasion arose the libel for which he

now sought reparation. But why should Mr Cobbett complain? Was that a singular coincidence? Was that the only instance in which such change might be observed in Mr Cobbett's mode of dealing with his friends? Was Mr Hunt the only man whom Mr Cobbett had on one day wantonly abused, and on the next as lavishly praised? Was there no little lapse of time to justify his change of opinion? Surely that was not a transition worked within a few months or a few days; and those who enjoyed the instruction, and amusement, and the pleasure,-for instruction, and amusement, and pleasure it must be to witness the play of great talents in whatever way those talents might be exercised;-those who enjoyed the delight of reading Mr Cobbett's writings and opinions, not only for a course of years, but even for a course of weeks, not only for a course of weeks, but even for a course of days, not only for days but hours, not only for hours but minutes-for instances of variance might frequently be discovered even in one and the same paper-surely all such persons must be aware, not only that inconsistencies in that great writer were things of common occurrence, but that it was in inconsistency only that he could hope to be consistent ; and that if once consistent, he would be still more inconsistent than he had ever been.

The LORD CHIEF-JUSTICE observed that the present case was limited to those papers which contained the libels in question.

Mr Cobbett wished Mr Brougham to have full scope.

Mr BROUGHAM continued.-The letter being a forgery, Mr Cobbett had no cause to be alarmed at it; but his rage was whetted; and in an article first addressed to the New York Evening Post, (the writer being then in America,) and afterwards published in England, he proceeded to attack Mr

Cleary. The language was this:"Now, though you doubtless would not forge a letter for so base a purpose, yet I declare that you have republished a forgery. I declare that this letter is a forgery; and I accuse Mr Cleary before the people of America, as I have done in my Register sent home before the people of England, of having forged this letter, or, what is the same in point of baseness, with having obtained it from a man who had forged it, and which man he well knew to have been guilty of forgery by writing my name for fraudulent purposes many times." The Jury no doubt were many of them aware that Mr Cobbett's manner of writing, and a most powerful manner it certainly was,-did not limit him to the narrow stint of a single assertion against the man whom he attacked; but that his plan,-most judicious for the accomplishment of his peculiar object, whether it were the inflicting pain upon any given individual, or the inculcating of any particular axiom as truth-his plan was,— constantly repeating and dwelling upon the same point, never ceasing his attack until he had made his impression, never losing sight or hold until the subject in his grasp was destroyed or torn in pieces to reiterate again and again the same charge, sometimes in varied phrase, and sometimes in the very same words, made more powerful by the repetition, until the idea of fact involuntarily associated itself with the so often repeated accusation, and belief was half extorted by the obstinacy of asseveration. Here, however, the clear and definite charge was the forging of a letter, or the uttering that letter know ing it to be forged. If that charge had foundation, the evidence of its truth must be in the hands of the defendant. The proceeding being by action instead of by indictment, there was an opportunity at once afforded to Mr Cobbett of justifying his own asser

tion, and of establishing, beyond doubt, the criminality of the plaintiff. Of that opportunity, however, the defendant had not thought fit to avail himself; for the plea upon the record was merely not guilty. He therefore substantially admitted the authenticity of the letter which he had declared to be a forgery; and only put the plaintiff to prove the publication of the libel. To anticipate the line of defence which Mr Cobbett would adopt, the learned counsel was unable. All topics were open to him; but there was one to which, for the sake of higher interests even than those of the plaintiff in the cause, Mr Brougham did trust that the Jury would most cautiously listen. If any thing were said as to the freedom of discussion, if one word were spoken about the liberty of the press, then the learned gentleman would beseech the Jury, even for the sake of that free discussion, for the sake of that invaluable liberty from which so many blessings were derived, to remember, that no advocate of those rights who still retained his senses, no champion of the most unrestrained liberty that ever could be imagined, had ventured to demand, or been insane enough to hope for, the power of attacking with impunity, by all means fair or foul, by all statements false or true, the characters of private-no, nor of public individuals. The learned counsel would give to MrCobbett, and to all men who wrote for the public, the most ample, the most extended range. They should make choice of all opinions, of all principles, and of all subjects; of the establishments which embodied, and of the institutions which supported them. Let them use every device which could conduce to the eliciting of truth, and let them use those means without control. Let them use invective and it should be called sarcasm; ribaldry, and it should pass for wit; buffoonery, and it should be accounted playfulness:

let them from month to month, from day to day, nay even with as rapid change as night could follow day, or light succeed to darkness, let them blacken or illustrate character; but let their range have still one limit, and let that limit be the truth.

Several witnesses were called to prove the letter to be in Mr Cobbett's hand-writing.

Mr Cobbett stated his reasons for pleading his own cause, and complain ed of the treatment he had received from Mr Brougham. Mr Brougham had described him as a man without scruple; as a sort of libeller surpassing all other men. From first to last he had been a writer, and often a publisher of his own writings; he had been a writer for twenty-eight years in England and in America; and yet, with all his over-zeal-and he wished to heaven some people had recently shewn as much zeal as he was taxed with-but, with all his excess of zeal and lack of scruple, he had never, in the course of twenty years' writing in England, been subjected to an action for libel, until the present ac tion had been brought by a set of conspirators; and conspirators he would prove them before he had done with them. Mr Brougham ought to have known that; indeed he did know it; and therefore his zeal, for once, for his client had caused him to overstep that which he knew to be true. In England, he repeated, he had never had an action against him; and in America, only one; that was for a libel upon a physician whose son had afterwards been ambassador to Great Britain. The physician had sworn that he lost practice to the amount of 200,000 dollars per annum; and 5,000 dollars damages had been given against him (Mr Cobbett); but the people had paid the money; and he (Mr Cobbett) had done a service to the country by rescuing the people from his abominable medi

cines. The charge of Mr Brougham affected him far more seriously than the loose and contemptible ribaldry of Mr Cleary. Twenty years had he lived in England; he had not suffered the grass to grow under his feet; scarce a week had passed but he had written something; and yet he had never before had an action against him for libel. There was not a newspaper, not a magazine, no not even the Evangelical

that could say as much; and, to mark him out as a libeller! As for the prosecution by the Attorney-General, he (Mr Cobbett) could only say, that it had done him no harm. It had given him leisure indeed, and he had written and revised many things during his confinement. He had gone into prison sound; and he had come out sound; and his seven years of recognizance had expired. Look at the Times and the Chronicle, and the other newspapers; look at the magazines and the reviews; even the Edinburgh Review, with all its clish-ma-claver, had not been free; but it had crept out of consequences by those softening arts which the northern gentlemen knew so well how to adopt, while southern stupid fools ran their heads into a gaol, With respect to the protection of private character, that subject had been improperly introduced. Mr Cleary was not a private individual; he was a public character, a political character; he had been mixed up with Major Cartwright, whom he had hoped to have seen put into the box by Mr Brougham;

Mr

Mr Cleary the associate of Major Cartwright!-yes, as a bug might be said to be a man's bed-fellow. Cleary was the last man whose private circle or whose domestic fire-side was liable to interruption. In order to shew how improbable it was that the harmony of this man's home should be disturbed by the writings in question, he would for a moment or two advert to his first appearance on the stage of