Sir F. Burdettrose, for the purpose of calling the attention of the House to a petition which he held in his hands, involving in it considerations of the highest importance. The petitioner said, he had experienced great sufferings and privations, owing to the error, to say the least of it, of the judge before whom he had lately been tried. It was from Mr. Thomas 1190 Wooler, the author of the publication called the "Black Dwarf," at present in confinement in the King's-bench, The petition stated the number of hardships which Mr. Wooler had undergone. In the first place he was taken up and committed to prison on an ex-officio information filed by the attorney-general, and he thus underwent a considerable punishment before he was brought to trial. He was committed under an act brought in by sir Vicary Gibbs, though when brought in, it was never intended that it should be applied in the way in which it had been applied. But as such injustice had taken place under it, it was his duty to propose, and perhaps the House would think proper to do so, the repeal of that act, which had so improperly been applied to objects for which it was not originally intended. The petitioner stated that two ex-officio informations had been filed against him. When he was brought to trial, it was impossible for him to know on which of the informations he was first to be tried; of Course he could not be so well prepared with his defence, as, under other circumstances, he might have been. On that information which was last filed, he was first brought to trial. So much irregularity had taken place on the part of the judge, in taking the verdict that he had put the individual tried in a very extraordinary predicament. In the first place, which was certainly rather a hasty mode of proceeding, the judge received the verdict before the jurymen were all in court. He (sir F. Burdett) happened to be in court at the time, and to be sitting on the same bench with the judge, and he could see only the foreman of the jury. But it was impossible not to see that there was some difficulty with respect to the delivering of the verdict. The foreman, in answer to a question from judge Abbot, whether the verdict was guilty or not said, "The verdict was guilty; but some of us wished to say so and so." The verdict, however, was recorded. But a very short time elapsed, when it was whispered in court that the jury were not agreed as to the verdict. The verdict was hastily taken; and if one could suspect a judge of a wish to entrap a jury into a verdict, he would behave exactly as judge Abbot had done: There were such circumstances attending the delivery of the verdict that it was impossible for any person not to be aware that there was a difference of opinion among the jurors. And under all 1191 circumstances but under those circumstances more particularly, it was incumbent on a judge to have had all the jurymen before him, and to have put the question to them, are you agreed as to your verdict? But the thing was not done in that way, and the verdict of guilty was recorded. When the circumstance of a difference of opinion among the jurors was first stated to the court, the judge ought to have inquired if the jurors were or were not separated?—and if not separated, they ought to have been sent back to consider the verdict. It appeared that three of the jurymen were not agreed as to the verdict—that special reasons were given by them, on the condition that if these reasons were not received they did not agree to the verdict. Of this they made affidavit; but the affidavits were not received. And why were they not received? After a great deal of argument had been used, and many precedents had been quoted of the affidavits of jurymen in other times, having been received, it was decided that they could not be received after a rule for a new trial had been granted. Mr. Justice Holroyd, than whom a more conscientious and independent judge never sat on the bench, stated that the affidavits could not be received after such a rule. In this case, Mr. Wooler had no opportunity of urging reasons why the rule should not be granted. But the court made the rule in the first instance, and then made the rule a reason why he was deprived of that to which, according to every principle of justice and equity, he was entitled. It was very hard on Mr. Wooler that the affidavits of the jurymen could not be received, because the court had made a rule, at the request of Mr. attorney-general, against the making of which rule he had no means of arguing. But the circumstances stated in these affidavits were heard by the bystanders in court. One of the jurymen expressed his disagreement with the verdict loud enough to be heard in court. Mr. justice Abbot however found that he had got himself into considerable difficulty in this case. He had received a verdict on which sentence could not be passed and at the same time Mr. Wooler was under confinement till he should be delivered in due course of law; and he could not be delivered till sentence was passed against him; and the verdict at the same time was so vitiated, that no court could venture to pass sentence on him, It was somewhat singular 1192 that in an early part of our history the same number of three jurymen disagreed as to a verdict, when the judge proceeding to pass sentence on it, he had the misfortune to get hanged. This was to be found stated in the Mirror of Justices. But in this case the matter was carried still farther than was done by justice Camhden—he put in other three jurors, and the cause was tried over again. But what was now doing in this case? Twelve jurors were put on. These twelve men only who first sat on Wooler could try his cause. They were his only legal tribunal; and yet the court now ruled that not three fresh men, but twelve fresh men should be taken. Now, this was a violation of the first principle of common law, that a man could not be twice in danger for the same offence. There was another instance in the same invaluable book, of a judge who was so unfortunate as to get hanged, because he passed sentence in a case where the jury were doubt-full: for, as the Mirror says, where there is any doubt there ought always to be an acquittal. You cannot, says Mr. Wooler, grant a rule for a new trial, because if the verdict is recorded, no new trial can take place, though the verdict was of such a nature that it set the court at defiance. But Mr. Wooler had the indulgence of the court forced on him, though in his opinion, the word indulgence in a court of law ought never to be used, for a court could only grant what was agreeable to justice. However, the court by way of indulgence endeavoured to impress on Mr. Wooler how much injury he did himself, by allowing a verdict to remain recorded against him. Mr. Wooler, however, was not to be shaken. Let the verdict be what it would, he was resolved not to accept the advice of those who are said to be of counsel for the prisoner. Mr. Wooler would not accept of the indulgence of the court. The court, however like squire Western, who, when he locked his daughter up, said "I will break her heart but I will make her happy," were resolved notwithstanding his protesting against the indulgence, that he should have a new trial. Suppose he were brought out to undergo again a new trial before a new jury, all his defence was already known—he had laid himself completely open to the prosecutor, who might take an unfair advantage of it, and avail himself of circumstances which he had formerly overlooked or neglected. 1193 Mr. Wooler was not, therefore, standing in the same situation in which he was when he was first brought before the 12 men who were sworn upon his trial. Under these circumstances were he Mr. Wooler, he would positively refuse to submit to a new trial, and leave the judges to act as they thought proper. He conceived, that standing on the verdict of condemnation he stood equally clear of them. It would become the imperious duty of the House to take into consideration the situation in which the petitioner was placed, owing, to say the least of it, to the overhasty proceeding in the judge.
§ The petition was read. On the motion that it be laid on the table,
The Attorney Generalsaid, he never was more astonished in his life than at the statement he had just heard, because, with respect to a great many of the facts in the petition, they were altogether without foundation; he spoke of the part more particularly which alluded to himself, if he was meant in what was said respecting the communication with the attorney-general. He undertook to state, that unless his memory of past transactions was gone, he never had had any personal communication with Mr. Wooler, or any agent on his behalf; nor did he ever see him, till he appeaved in court. But if such a communication had been made to him, he would have told Mr. Wooler, that the same proceeding must be observed in his case which was observed in all others. All the communication he had with him was giving him notice that his trial would come on of course after the Easter term, that as he had pleaded, he might not say he was kept in custody till the sittings after Trinity term. It was stated, that the second trial was pressed on him. But the fact was, that so far from being unwilling, when he (the attorney-general) was looking over some papers, and pausing in the proceeding, Wooler's attorney desired to have his warrant, as a sufficient number of special jurymen was not present to pray a tales. So far was it from being true that he had forced on the second trial! Indeed, in his speech to the jury, Mr. Wooler made a sort of triumph that he (the attorney-general) had paused so long before proceeding with the second trial. Now, what passed at the trial. Behind the place where the judge sat, a place was partitioned oft', through which the jury passed when their came back with their verdict. While the second trial was going 1194 on, the jury came by that passage into court. The foreman came and two or three others, and the rest were behind them when their names were called over, they either all answered themselves, or twelve voices answered to the names. This he would say, and he would defy any person to contradict it. When the officer of the court asked, guilty or not guilty? The foreman answered guilty; but stated at the same time, that he had a paper in his hands. He undertook, on his solemn honour, to say that he never had had the slightest communication with any juryman who sat on the jury—he knew not even the faces of any of them—he knew nothing of that paper—he knew only that the foreman was a Mr. Powell, a respectable merchant in the city. When the officer asked, guilty or not guilty, the foreman looking at the paper which he held in his hands, answered guilty; but three of the jury wish to give reasons. The answer of the judge was, I shall receive any thing which comes unanimously from the jury; but I cannot receive particular reasons from particular jurymen. What is your verdict? The answer was— My lord, we find the defendant guilty. If those behind him were not all in court they must have heard what the verdict was from the symptoms which were manifested in court on hearing the verdict. When the question was asked, is that your verdict the answer returned was, yes—on which it was recorded. Three quarters of an hour passed, and after the greater part of the jury were gone, after the defendant's solicitor had been out of court, and after conferring with one of the jury-then, and not before, it was stated that the jury were not unanimous in their verdict. It had been laid down by all the authorities, that when a verdict had once been recorded, it could not be altered or retracted; the judge therefore said that nothing could be done there, meaning that application must be made to the court out of which the record had issued. It appeared to him (the attorney-general) most marvellous, if the jury had not agreed in their verdict, that those who dissented should not have stepped their fellows. They knew that some verdict had been given, and that it was not an acquital, as nine of the jury were in favour of a verdect of guilty absolutely. On the first day of term the learned judge, who knew that the whole of the jury were not within his view at the time, and that possibly all of 1195 them did not hear what had passed, felt it his duty to state the circumstances in court. He (the attorney-general) suggested, that the facts should be made out I in some manner by the affidavits of the by-slanders. The court then said, that if there was a doubt whether all the jury were within the view of the court, a new trial would be granted on the application of the party, on which he, in the character of the advocate of the crown, anxious that not the least injustice should be done, begged a new trial. The attorney of Mr. Wooler objected to this, and wished either a verdict for an acquittal, or a trial by the same jury. Could he reasonably demand a verdict of acquittal, when nine men were for returning an absolute verdict of guilty, and three merely for adding their reasons? If the verdict had taken its course, and it had appeared that the court could not pass judgment on it, the course would have been to award a venire de novo, which is a new trial by another jury. When any mistake occurred, lord Coke, and all others agreed that such a new trial must be granted. Yet Mr. Wooler complained that he was used with hardship, because he had been treated according to every principle of law, and objected to that which was awarded him ex debito justitœ. He therefore contended that the complaints of the petition were unfounded, that some of the statements to which he referred were untrue, and that it could only have been intended to bring the administration of justice into contempt.
Mr. Ponsonbyasked the learned gentleman, whether the names of the jurors were called over? whether the clerk had asked them if they had agreed in their verdict? whether their foreman should speak for them? and whether they consented?
The Attorney Generalsaid, that the questions were asked such as the right hon. gentleman had stated them; but he could not say whether all the jury repiled that their foreman should speak for them.—such was not usual. It was rather customary for the clerk to say the words, "Does your foremen speak for you?" and the silence of the jury implies their assent. In this case, the judge asked the jury, "Are you agreed in your verdict?" "yes, my lord," was the reply of the foreman, "but—" "I cannot receive the reasons of a pant of the jury," said the judge, "what is your verdict?—"Guilty, my lord," was again the reply.
Mr. Ponsonbywas of opinion, from the 1196 information he had just received, that the proceedings in question were perfectly regular. He wished to know on what grounds the new trial had been granted?
The Attorney Generalanswered, that the court was not satisfied that the verdict was returned in such a way that it could form the foundation of judgment.
§ Mr. Broughamwished to know whether the foreman, after saying "yes," had not added—"but."
§ Mr. Broughamwas perfectly satisfied with the explanation of his two learned friends. If credit was to be given to the attorney-general, and, from long knowledge of him, he had every reason to believe his statement, the assertion of Wooler, that he was obliged, after having been exhausted, to enter upon the other trial, was incorrect, as the immediate succession of the second trial was of his own seeking.
The Attorney Generalsaid, he was certainly going on with the other trial, but Mr. Wooler's attorney seeing him pausing, and believing that he was not ready to go en, sent him a note demanding a warrant for proceeding immediately.
§ Mr. Broughamsaid, he understood the attorney-general quite well. Though the solicitor wrote the note, Wooler took credit with the jury for greater readiness to proceed than the prosecutors showed. This was quite irreconcileable with the charge in the petition, that he was hurried on while exhausted with the other trial. Such a contradiction affected the credit of the whole petition. He wished so dishonourable a contradiction could be explained. He could not but greatly lament one omission which had confessedly taken place on the trial.— Before he alluded to this omission, he thought it right to disclaim the slightest wish of casting an imputation upon Mr. Justice Abbott, or to insinuate that there sat on the bench in this country any judge of a time-serving character, or who, in the discharge of his duty, looked for any other reward than the approbation of his own conscience. The omission to which he alluded was, that the learned judge should not, at the instant of the appearance of a disagreement among the jury, have taken the very obvious step of suggesting that then was their time fully to consider the nature of their verdict, and of seeing at 1197 the instant, what struck him not a great many hours afterwards, when he made the candid and ingenious statement to his brother judges, that there was a possibility of all the jury not being within hearing when the foreman addressed the Court.—He was also at a loss to account for the two very unusual questions put by the judge when the verdict was given, namely, "Gentlemen, are you agreed?" and repeating the question—and then asking them, "Is this your verdict?"—From these very questions, he was compelled to infer that the learned judge had at the time some doubts of the regularity of the proceeding. There could be nothing of greater importance in a country like this, than that the utmost light should be thrown upon all judicial proceedings, particularly those which were in some degree connected with the state.
The Solicitor Generalsaid, the reason why Mr. Justice Abbot reported the case to the other judges was, that a gentleman had stated in court, three quarters of an hour after the verdict had been recorded, that all the jurors had not concurred.
Sir F. Burdcttwould say nothing further on the subject but for an expression used by the attorney-general as to his motives in bringing in the petition. He had alleged that his intention was to bring the administration of justice into contempt. He knew that the attorney-general had the power of filing informations ex-officio for whatever he conceived to be a libel, but he did not know that he was entitled ex-officio to utter libels against members of that House for their parliamentary conduct. He had presented this petition from an anxiety, that what was administered as justice should really be justice.— It was stated by the attorney-general that the new trial was for the benefit of Mr. Wooler. He could see no advantage that Mr. Wooler was to derive from it; but it was evidently for the benefit of the judge, who had brought himself into at least an awkward predicament. Mr. Justice Holroyd had said, that it was impossible to proceed upon that verdict; therefore, the new trial was not for the benefit of Mr. Wooler. It had been stated too, that Mr. Wooler was told that he could be discharged upon his own recognizance: he knew not how far this was true, but it was true it made the argument still stronger.
The Attorney-Generalreplied, that not 1198 wishing Mr. Wooler to suffer a prolonged imprisonment, in consequence of any mistake in the delivery of the verdict, he had directed that the offer of liberation on his personal recognizance should be made to him.
§ The petition was ordered to lie on the table.