§ Mr. T. Duncombe rose,
in accordance with his notice, to call the attention of the House to the petition of William Jones, a prisoner in the Leicester county gaol, complaining of the conduct of Baron Gurney during his trial at the late Leicester assizes, and to move that an humble address be presented to her Majesty, 190 praying that her Majesty will be graciously pleased to take into her merciful consideration the case of the petitioner. He was glad that the relative of the learded judge (the hon. Member for Lambeth) was present, now that he was about to bring under the notice of the House a case which, being the subject of a petition to the House, and praying for the redress of a grievance, ought not to be postponed from time to time. The petitioner made two complaints. He had presented a petition to the House, in which he set forth the following facts:—That your petitioner is now a prisoner in the borough gaol of Leicester, to which place of confinement he was sentenced for six months at the last assizes held before Baron Gurney. That your petitioner having been arraigned on a charge of uttering a seditious speech tending to excite the people against the police force and the array, could have shown to the jury that the charge was false, but was interrupted, as your petitioner believes, most unconstitutionally, by his judge, and was thus prevented from establishing his innocence. That under these circumstances, which your petitioner conceives to be a violation of the sacred right of trial by jury, inasmuch as he was prevented from making a successful appeal to his jurors, your petitioner humbly entreats your honourable House to take measures for securing him a legal and constitutional trial. That your petitioner feels the more urgent in his desire to be dealt with according to the constitutional customs he has ever been taught to hold sacred, inasmuch as he has been appointed by Baron Gurney to the second class of misdemeanants, and is only allowed a very restricted and meagre diet, which he feels to be unequal to the support of health. Your petitioner, therefore, prays for the immediate attention of your honourable House to his case.It was a maxim of the law, that the House ought to act as counsel to an undefended prisoner. That maxim had been strikingly enforced by Lord Chief Justice Heath, on the trial of Lilburne, for high treason, in 1649. Lilburne being undefended, Chief Justice Heath said:—It is true I am a judge made by my sovereign, yet it is known, by the known laws of this land, my duty to be indifferent and free from partiality betwixt my master and you the prisoner, and I am specially bound to it by my oath. You shall have, therefore, the utmost privileges of the law of England, which is a law of mercy. It is also the duty of a judge, by law, to be of counsel with the prisoner, wherein, by his ignorance, he falls short of making use of the benefit of the law, and to exhort him if he perceive him daunted or amazed by the presence of the court. Yea, it 191 is my duty to carry myself with all fairness and evenness of hand towards you, to rectify you; it is my duty to help you, and not to use any boisterous or rough language to put you in fear; and according to the laws of England this is my duty, and this is the law.Now, the question was, whether Jones was daunted and amazed by the rough and boisterous language which Baron Gurney addressed to him. From the inquiries which he had made, it did not appear that the reports in the newspapers were fully borne out by the facts of the case; but he could produce respectable men who were able to prove that the judge did use hasty and intemperate expressions during the trial. Jones had used every means to obtain redress or a mitigation of his punishment, before coming to make his case known to the House of Commons. The opinion of a learned Member of the House—the hon. Member for Rochester (Mr. Bodkin)—had been taken as to whether a new trial might be moved for, on the ground that the prisoner had been improperly dealt with by the learned judge. The learned Gentleman stated it as his opinion that a new trial could not be moved for on the ground of the alleged misconduct of the judge, and that the law had not provided any means of reviewing it; but that the only course in such cases was to apply to the Crown for a pardon, which, if it were manifest that injustice had been done, would never be refused. Applications for a remission of the sentence had, accordingly, been made to the Crown; but those applications had not been attended with success. Mr. Roberts, a solicitor, had made application to the right hon. Baronet the Secretary for the Home Department, but no notice had been taken of his letter. He would now bring before the House some of the passages in Baron Gurney's conduct, of which Jones complained. It could be proved, not only by the evidence of Bairstow and Marshall, but of others, that the prisoner was daunted and intimidated, and that he was not allowed to make those statements which he believed would establish his innocence. It appeared, that during the cross-examination of Thomas Agar, a sergeant of police, the judge interrupted the defendant with some warmth upon his asking the question—" Did you think yourself morally justified?"—or rather part of a question, for he got no further, the judge interrupt- 192 ing with—" Stop, stop; what have we to do with that?" Well, the defendant said —" My Lord, I think," but the judge immediately stopped him again, saying— " You may think what you please, but we'll have no such nonsense as that about ' morally justified' here." The policeman went on with his evidence, in cross-examination by the defendant and said,The people were orderly. He meant by that there was no actual breach of the peace; there was no disturbance, but the people were elevated. Meant by elevated, that they were wrought upon by your expressions. There was injury done to the policeman before you came, and not since.As soon as the witness said that, the judge again interrupted—Why, they took you up, you see; that's the way they quieted you. If you turn a dog down the street, and cry out ' Mad dog.' there's no need to tell the people to knock him on the head. There's no occasion for it, it is not necessary, they will do it without.The learned judge stated that. [Mr. Hawes: " Hear."] His hon. Friend was not present nor would he find that statement upon the judge's notes; but it could be proved by several respectable persons who were present at the trial, and the reports of different newspapers concurred in giving the same account of it. No one, he thought, could say, that that was an observation calculated to assist the prisoner. Then, it appeared that Jones, in the course of his speech, admitted to the Court that on some former occasion he had called the Government " a tyrannical Government." Upon this, Mr. Baron Gurney stopped him, and said, in a rough manner,Then you have done wrong; you had no right to say anything of the sort. We know nothing of you here except what is charged against you; and there is no need that you should give yourself a bad character.So this judge laid it down, that to call a Government " tyrannical" was to commit, a crime against the law. Why, if that were the case, there was at once an end to all freedom of discussion. When Gentlemen opposite were out of office, what, let him ask, did they say of the Government then in power? Did they mince the matter after this fashion? Did they hesitate to call the Whigs " tyrannical," or anything else that it came into their heads to call them? Why, there was no vituperative epithet in the English 193 language that they were not accustomed to apply, not only, to the Government, but to the Queen herself, and yet there was this mere boy (he was under twenty years of age when he was put on his trial) —here was this Jones assailed by a judge for frankly admitting the use of a term which that same judge had never thought of reprehending when it came from the mouth of a Member of Parliament. With respect to Baron Gurney's summing-up, too, exceptions had been taken by many impartial persons who were present at the time. One of the papers said,Mr. Baron Gurney then proceeded to sum up the evidence, and expressed his opinion of the case in no very equivocal terms.Of course he was unable to judge of the judge's manner, but with regard to the matter of his charge, he was bound in candour to admit, that after reading the short-hand writer's notes, he had no very great fault to find with it. He did complain, however, of the intemperate and hasty expressions of the judge—expressions by which, as the prisoner said in his petition,He was so cowed that he was unable to proceed with his address, (and of which he also complained, and very fairly,) that the judge so narrowed his path that he really knew not where to put his foot.If all this were proved, and he (Mr. Duncombe) unhesitatingly averred that every word of it could be proved, that he must say that this judge had not acted up to the maxim of Chief Justice Heath, " that the bench should assist the prisoner." But this was not all; the more grievous part was to come. The prisoner, after the judge's charge, was found guilty by the jury, whose verdict ran in these terms:—We find the prisoner guilty of using the language imputed to him, but we are of opinion that he used it whilst labouring under great excitement.After such a verdict as this,—looking, too, at the circumstances of the trial, the prisoner's complaint of interruption by the judge, and his averment that several jurors, whom he could not challenge, were prejudiced against him,—after such a verdict, and under such circumstances, he must say, that the sentence passed on the prisoner by Baron Gurney was an exceedingly harsh and severe sentence. Before he passed such a sentence Baron Gurney 194 might surely have called to mind those good old days of Jacobinism, when he himself did not hesitate to call Governments " tyrannical;" when it was said of him by a celebrated wit " that he succeeded so well at the bar because he did so much business in sedition." Mr. Baron Gurney had made himself by defending what he would now call seditious libels. He was the bosom friend of the Rev. Jeremiah Joyce, who was tried for high treason—he defended the members of the Corresponding Society of 1793 —he was—[Mr. Hawes: Don't, don't.]—why, I'm telling the hon. Member facts which he is not aware of, and which are more to the credit of his relative than anything he has ever done since he was the man who publicly desired to " meet the fate of Hampden, who died in the field, or of Russell, who suffered on the scaffold"—who in earlier years baptized his own sons by the names of Sidney, of Russell, and of Hampden, and who yet in the year last past could find no palliation, no apology, no excuse for the somewhat intemperate zeal of " this misguided boy." To six months' imprisonment was this young man consigned; and all that could be said of such a sentence was, that it frustrated its own object by engaging for the prisoner the sympathy rather than the reprobation of the public. But there was something behind even more rigorous than the sentence. The House would remember that in Lovell and Collins's case her Majesty's Government gave it to be understood that political offenders should not be made the gaol associates of men convicted of atrocious crimes. Gaol prisoners, it was said, were to be divided into two classes, of whom the political offenders were to occupy the first. Now, Jones complained that he was not so placed—that the judge had put him among the second class of public offenders, that he was only allowed to see his friends once in two months, and that his only allowance on which to support life was 1lb. of bread, a pint of porridge, and the same quantity of soup or gruel per diem. Now, when the right hon. Gentleman the Member for Nottingham was in Newgate there were no such restrictions upon him. He was allowed to supply himself with any food he thought proper, to read what books he liked, to see his friends within the prison, and to correspond with whom he pleased beyond the walls. Not so with Jones; he was subjected, under Mr. Baron Gurney, to a 195 system of absolute bodily, to say nothing of mental, torture; and that, too, for a crime which was considered almost venial —the crime of making a silly and imprudent speech. And now, doubtless, whilst Jones was suffering all this, the learned Attorney-general would get up in his place and say, " Oh, he has his redress; let us leave him to seek it by the law." The learned Attorney-general little understood bow rarely the poor man could find the means of putting fees in the pockets of the lawyers. If Jones could have employed counsel at his trial—if he could have engaged in his cause the eloquence, the skill, and the legal knowledge of his learned Friend beside him (Serjeant Murphy)—it would have been impossible for Mr. Baron Gurney to interrupt the reply, and it would have been improbable that he should now have to appeal in the prisoner's behalf. But in this case even the Attorney-general's constant rejoinder to a case of this kind could scarcely be considered applicable. Jones had tried all the means open to him to obtain redress. He had obtained counsel's opinion; he had appealed to the Tight hon. Baronet—who, by the way, had probably not read his letter, for it had been three weeks at the Home-office unanswered,—and having tried such means and found them ineffectual, it could scarcely now be said that he was pursuing a wrong course in appealing to that House. A common argument was, that an address of this kind was interfering with the prerogative of the Crown. He (Mr. Duncombe), however, would maintain that the House possessed and ought to exert the power of advising her Majesty in the exercise of her Royal prerogative. In Hunt's case, when the same point was mooted, it would be remembered that the present Lord Chief Justice voted for the address. In the case which he (Mr. Duncombe) had the honour of bringing before the House in 1840, it would be also recollected that the motion was only lost by the Speaker's casting vote. Possibly on this occasion he might be left in a minority, but whether he was or not it was at least the duty of the Government to consider the facts, and if good cause of complaint existed, to apply to the Crown for that free pardon which, where injustice was committed, was said never to be refused. The hon. Member concluded by moving that an humble address be presented to her Majesty humbly praying that her Majesty will be gra- 196 ciously pleased to take into her Majesty's merciful consideration the case of William Jones, confined in her Majesty's gaol at Leicester.
§ Sir James Graham
said, he rose, in the strict discharge of a public duty, to answer an accusation made by the hon. Member for Finsbury, which was immediately connected with that important subject, the administration of justice. He spoke correctly when he said that on the present occasion he was acting strictly in the discharge of a public duty; because, although he entertained the highest respect for the public character of the learned judge whose conduct had been alluded to, he had not the honour of more than a casual acquaintance with him. Upon this occasion the hon. Member for Finsbury appeared once more before the House labouring in his usual vocation—he having, as it were, adopted the character of public prosecutor of the judges. The hon. Member being self-constituted censor of vituperative language, it would become him to be a little more guarded as to the expressions which he applied to venerable judges on the bench—men of the highest reputation, whose fair fame had remained unsullied up to the evening of their life. He knew the hon. Member for Finsbury so well that he was sure, if the hon. Member bestowed a moment's reflection on the matter, that not even the consciousness of acting in the discharge of a public duty could compensate for inflicting upon persons of such high character and occupying so eminent a position needless pain by the use of unguarded expressions. He complained of nothing which the hon. Member had said respecting the public conduct of Mr. Baron Gurney, and, leaving his many friends and relatives to defend any part of his private character which they might believe to have been assailed, he would merely, in passing, express his regret that the hon. Member had considered it necessary to refer to Baron Gurney's political opinions in early life. Now, with respect to the public conduct of Baron Gurney, he could assure the hon. Member and the House, that he did not neglect to make inquiry respecting the language and conduct attributed in the public journals to that learned person. As soon as he was acquainted with what was alleged to have occurred, he addressed a letter to Baron Gurney, requesting to be 197 informed by him of what had actually taken place, and he would state the substance of the learned judge's reply. The hon. Member had spoken of his (Sir James Graham) having neglected to reply to a letter addressed to him by a Mr. Roberts, whom he designated as a solicitor. It might be true that that person was a solicitor, but he was something more. This Mr. Roberts was convicted of seditious conspiracy at the Salisbury Spring Assizes in 1840, and sentenced to three years' imprisonment. He (Sir James Graham) did not feel called upon in his official capacity to take any notice of a communication from such a person, couched, as it was, in very strong language, and reflecting on the character of a judge. From the manner in which the hon. Member had spoken, the House might be disposed to infer that he (Sir James Graham) had taken no notice whatever of the complaints which had been preferred on the part of Wm. Jones; but that was not the fact. The hon. Member himself brought Jones's case under his consideration, and the hon. Member would do him the justice to recollect that he paid immediate attention to his letter and answered it fully. The hon. Member had spoken of Jones as a youth, and said that his conduct arose out of great excitement- Jones was 22 years of age, and perhaps the House would permit him to state what were the circumstances under which his offence was committed. It was committed in August last, during the period of the insurrectionary movement in the north of England, when the greatest excitement prevailed throughout the manufacturing districts. The disturbances extended to the town of Leicester, and the police were interrupted in the discharge of their duty, and assaulted by large mobs. In consequence of these disturbances application was made for military assistance, and the yeomanry were called out and even quartered in the town of Leicester for the period of twelve days. The prisoner, under the pretext of preaching a sermon, assembled a tumultuous meeting in the Market-place of the town of Leicester, and upon that occasion he addressed to the multitude a most seditious harangue: language of a most violent and exciting character was used. The police force was subjected to the most scurrilous abuse. A violent tirade was uttered against the yeomanry, who had beep called upon duty to preserve the, public peace. The army was called a body 198 of hired assassins; the police were designated vampires, and the yeomanry were styled trained assassins. These facts were proved in court beyond the possibility of a doubt. He would now address himself to the charges brought against the judge who had presided at the trial of this person— charges, however, which did not need much refutation, seeing that they had been abandoned even whilst the hon. Member was yet making them. The hon Member for Finsbury had abandoned all the charges against Baron Gurney, with one exception, viz., the expression which had a reference to mad dogs, which he alleged the learned judge to have used. With that exception the hon. Member did not press the charge of intemperate language against the learned judge. He (Sir James Graham) had received Baron Gurney's explanation of his interruptions during the speech which the prisoner had made in his defence, and he stated that the defence lasted for three hours, during which he (Baron Gurney) had permitted two friends of the prisoner to sit near him and assist him with their occasional advice and suggestions, but the interference of these two gentlemen at length became so constant and frequent, that the learned judge thought proper, in order to prevent the course of justice from being interrupted, to put a stop to this species of interpleading, The learned judge expressly denied having used the phrase " mad dog," or any similar expression; and he explained, with respect to the interruption complained of at a subsequent period of the defence, that the prisoner was arraigning the Government of the country, and describing it as a tyrannical Government, upon which he (Baron Gurney) interposed his authority and stopped this current of observation by reminding Jones that the court was not a competent tribunal to judge of the constitution of the country, but that he was simply called upon to answer the charge brought against him and upon which he stood at the bar to be tried by his fellows. The venerable judge averred that this was the only interruption which the prisoner experienced, during his three hours' defence, from him, and it did not appear to have had much effect, as an interruption, seeing that he spoke for one entire hour after the learned judge had recalled him to the point in question, and thus the completeness and fulness of his defence did not appear to have been broken down. To the best of his recollection that was 199 the account which Baron Gurney gave of the transaction. The remark made by Baron Gurney upon the petition of the prisoner was, that his complaint of interruption and of unfair treatment was evidently an afterthought; for he (Jones) had, at the termination of the trial, expressed his acknowledgments and thanks to the judge for the patience and attention with which he had listened to his speech. He put it to the hon. Member whether, as these circumstances had taken place in the presence of counsel, in the face of the bar, in an open court of justice, where there was no attempt at concealment made, it was fair to the learned judge to try the question de novo merely upon the vague allegations contained in the petition which he had presented to the House? He would now refer to the second particular in the case. He alluded to the treatment which the prisoner was said to have been subjected to in gaol. What were the circumstances under which the prisoner was convicted? He (Sir J. Graham) had already stated to the House the dangerous state of excitement to which the prisoner had endeavoured to rouse the populace at Leicester, bearing in mind this fact, he begged the House to reflect upon the nature of the sentence passed upon him. Mr. Baron Gurney, notwithstanding the character of the prisoner's offence sentenced him only to six months' imprisonment. That was the sentence the judge passed. The hon. Member did not complain of the terms of imprisonment, but of the fact of the prisoner being placed in the second class of misdemeanants. The hon. Member had made an allusion to the act of Parliament having reference to this point, but in doing so he omitted to refer to that part of the statute in which the Legislature deliberately enacted, that when a party had been convicted it was quite discretionary with the judge to determine in which division the prisoner was to be classed. The hon. Member would lead the House to believe, that notwithstanding the character of the sentence, undue severity had been exercised towards the prisoner. He did not think that it was consistent with his duty to recommend any alteration in the classification which had been adopted; but in consequence of the representations of the hon. Member relating to the declining health of the prisoner, a letter had been written to the visiting justice on the subject, in which it was stated, that if such statements were true, a relaxation in the 200 treatment of the prisoner was strongly recommended. He (Sir J. Graham) had read a certificate from Mr. O. Beaumont, the surgeon of the Leicester gaol, with regard to the condition of the prisoner. The surgeon said in his certificate, that the prisoner was labouring under no bodily disease, but merely a slight indisposition arising from an alteration of diet, and a depression resulting from the confinement to which he was subjected. Was it a fact that even in these circumstances no relaxation had been allowed the prisoner? By the advice of the visiting magistrates considerable relaxation had taken place in the treatment of the prisoner. The rules of the prison, in his particular case, had been mitigated. He was permitted to wear his own clothes; he was allowed to read any unobjectionable books that his friends might think proper to send him; he had also the use of pen, ink, and paper, under certain restrictions. He had now made a short explanation of the conduct of the judge and the executive Government in the particular case which the hon. Member had brought under the notice of the House. And he must be permitted to say, in conclusion, that with all his respect for that House, he did not think it expedient to advise the Crown to exercise its prerogative of mercy unless circumstances strongly warranted the adoption of such a course. No expressions which any hon. Member might think proper to indulge in would induce him to do anything which would have the effect of interfering with the calm and temperate administration of justice. In this particular case he was of opinion that justice had been tempered with mercy. Notwithstanding the imputations which the hon. Member had attempted to cast upon the character of the learned judge, he trusted that that distinguished individual would persevere in the line of conduct which he had pursued from the early period of his judicial career, and would regard with indifference aspersions which could have no effect in injuring his unsullied reputation. The right hon. Baronet concluded by stating that it was his intention to meet the motion of the hon. Member for Finsbury by a direct negative.
§ Mr. Hume
was ready to admit, so far as his own experience went, that the right hon. Gentleman had always attended to applications of this kind, and it certainly appeared that of this case the right hon. Baronet had taken a merciful view. But he thought the circumstance of the 201 right hon. Baronet having made relaxations showed that his hon. Friend the Member for Finsbury had not improperly brought forward the present case. He (Mr. Hume) had been led away by the statements that had been made public respecting the learned judge, and he had thought the more of it, because in his youth he had been accustomed to look on the learned judge as one of the most steady of reformers, and he was vexed to think that the learned judge should have abandoned his early opinions. His hon. Friend (Mr. Duncombe) it was evident had rather overstated the case. He agreed with his hon. Friend that the manner in which, within the last few years, political offenders had been punished had been very severe. He had visited Sir F. Burdett, Sir John Hobhouse, and other political offenders in prison, and no such severity was then exercised. He trusted, therefore, whenever his hon. Friend had ground, he would proceed in his career. The right hon. Baronet, in the present case, appeared however to have taken a merciful course. As to the learned Judge, he was misled by statements he had seen; but it did not appear, though Mr. Baron Gurney might have used some intemperate expression, that any more serious charge could be made against him. He himself, and many other individuals, in 1831 and 1832, some of whom formed part of the late Government, had made use of much more violent language than had lately been so severely punished—and he was sorry to say that the Whigs, who had been the first to use such language, were the first to punish it so severely. He could not refrain from expressing his hope that this extreme severity of punishment towards political offenders would be abandoned.
Murphy recommended his hon. Friend to withdraw his motion; and, adverting to the trials at Lancaster, said he was authorised by the individuals whom he defended, and many other defendants, to express the highest admiration and gratitude for the manner in which the law had been administered, both by the Attorney-general and by the learned Judge who presided on the occasion. The charge against Mr. Baron Gurney, in the present instance, seemed to be of a very flimsy character.
§ Mr. Hawes
also thought that the charge against Mr. Baron Gurney was not substantiated. He had learned from three 202 barristers who were present at the trial, that the prisoner thanked the judge. The case had not been made out, and he thought his hon. Friend would act most prudently by withdrawing the motion.
The Attorney- General
spoke from the general assurance of more than one of the counsel who were present at the trial, that the learned Judge received the prisoner's thanks for the mode in which he presided over the proceedings. As the motion, however, was not likely to be persevered in, he would only take the liberty of leading some remarks on the case published in a local paper, which, on account of its political tendency, was more likely to sympathize with the prisoner than the judge. He had come down fully prepared to go into the question; and he held in his hand a newspaper, the Leicester Chronicle, which was published in the town of Leicester, advocating politics corresponding with those of the Chartists, and which distinctly stated,—It was with considerable surprise that we perused the reports of this trial which appeared in the Times and Morning Chronicle of Monday se'nnight, and which were exceedingly unfair towards the venerable judge before whom the prisoner was tried.The prisoner, both in his cross-examination of the two witnesses Marshall and Agar and in his defence, introduced a very great deal of matter wholly irrelevant to the charge brought against him; and Baron Gurney, therefore, had to remind him, as he would have reminded any other prisoner, that such a course could not be allowed. This was done decidedly, but not harshly, as the reports in the Times and Chronicle would make it appear; for he is there said now to have spoken ' sharply,' and then with ' vehemence.' When the prisoner said he had often denounced the government as tyrannical, &c., Baron Gurney said, ' Then you have done very wrong; you had no right to do so,' &c.; but that he said ' with vehemence' is untrue. He is also said to have summed up unequivocally against the prisoner, &c.: but not one word of his summing up is given, whereby the public is enabled to judge whether this is the case or not. Now, seeing that a great deal of room could be found to give all the best parts of the prisoner's eloquent but unconnected defence, we were certainly in expectation of meeting with an outline, at least, of the judge's summing up; and we can only account for such not being the case on the supposition, that it was not the intention of some of the 'briefless' who supply the London papers with assize intelligence—and who supplied the reports in question—to place Baron Gurney's conduct before the public in the most unfavourable 203 light possible; and in this supposition we are strengthened by the following circumstance;— During the trial some persons outside the court were working a common house-pump, and the noise thereby made, prevented his lordship from hearing; he, therefore, made some observation to the effect, that the noise should be put a stop to. This simple remark has been tortured into his having threatened to send away ' those persons pumping there'—meaning, it is said, the prisoner's Chartist friends, Bairdstow and Markham!It is well known that at the time of Jones's apprehension and committal we called in question the (to say the least) expediency of such a procedure, and that because we thought too much importance was thus attached to the somewhat extravagant harangues of an itinerant lecturer; we did this, too, because we are as jealous as any person can be of the slightest invasion of the right of the subject to speak his mind openly and honestly on matters concerning the common weal; but, thinking thus, and even though we may also differ with the learned judge as to the right of a person to denounce the Government as tyrannical, or as to the poor man's labour being equally protected by the law with the rich man's property, we feel bound to declare that we think the prisoner was fairly dealt with by the judge as a judge; wherever he was checked, or not allowed to proceed, it was in accordance with law; and the only point where we could have wished his lordship to have acted otherwise than he did, was his not allowing Jones to challenge one or some of the jury—Jones alleging he had been informed that one or more jurymen were pre-determined to find him guilty; but for this he gave a legal reason. However unfavourable the summing-up may have been to the prisoner, he himself was the cause of it; whatever evidence was wanting as to the tendency and intention of his language at the meeting in question, his cross-examination and defence supplied; and, despite the ability he displayed as an orator, he added another to the many recent proofs that, ' he who is his own counsel, has often a very foolish client.'And in the following week the same paper said:—The report of this trial, as published in the London newspapers, continues to excite comments, more or less unfair, upon the conduct of the judge; we therefore again take the opportunity to assert that the defendant was fairly tried and indulgently treated.Every person who has witnessed the direct and straight-to-the-point manner of Mr. Baron Gurney—his dislike to the introduction of irrelevant matters, and the impartial constancy of his rebukes to counsel with reference to their irregularities—must admit that his patience and endurance in Jones's case were I extraordinary. His interruptions have been 204 misreported and misunderstood. A great deal of cant has been written as to the propriety of judges allowing all sorts of indulgences to defendants who plead their own cause, as if, forsooth, rules which are the result of great experience, framed for economising the public time, and for reducing inquiries to close and definite issues, are to give way whenever any defendant is vain enough and foolish enough to be his own counsel. Some judges there are so much afraid of observation and remark, that they have been led into the weakest and silliest condescensions to persons charged with seditious offences; assuredly Mr. Baron Gurney's conduct was not of this character. At the same time we feel certain that more extensive indulgence was shown to Jones than would have been the most able counsel on the circuit.Having made these observations as to the impartiality of the judge, we may be allowed to say, that in our opinion he was somewhat in error in point of law when he refused to allow the defendant to quote to the jury from speeches made at public meetings by persons of authority and station. In all the defences with which we are acquainted, in cases of seditious libels or seditious words, it has been usual to allow such quotations to be made, and we are sure that numerous instances are to be found in the published speeches of the most eminent of our advocates. It is true that they may not be evidence in a technical sense, but surely the published records of speeches are sometimes pertinent by way of comparison, when the quality and tendency of particular expressions form the tendency.It was, however, well for defendant that the quotations were disallowed, because, on carefully looking at the speeches referred to, we can imagine nothing more certain to have procured his conviction than the contrast of his speeches with those. They were the speeches of townsmen at town meetings, assembled for the purpose of discussing special or general grievances, or of celebrating the triumph of freedom over despotism in a neighbouring nation. We defy the most perverted ingenuity to point out the most remote analogy in the language of the speakers, or in the circumstances of the meetings at which these speeches were delivered. The learned counsel in particular, whose speech was alluded to, was really the person most entitled to complain of their exclusion; for, on reference to his address, no single expression can be found of which the most fastidious stickler for propriety need be ashamed.There is one other point upon which Mr. Baron Gurney has been, as we believe, misunderstood. We by no means allow it to be a great crime, in discussions or arguments at public meetings, to speak of particular acts of the Government as 'tyrannical;' and we do not think the judge intended to convey that impression; we believe he intended merely to assert it to be an offence to incite the people 205 against the Government and institutions gene-rally as tyrannical.With reference to the defendant's challenges of the jury, the judge had no power, as we are informed, to allow them, without cause being shown, there being a difference between felonies and misdemeanours in this respect.Thus it appeared, that those who might be looked on as not indisposed to find fault with the judge bore testimony to the fair and indulgent treatment of the prisoner. The motion divided itself to two points—first, as to the conduct of Baron Gurney; and, secondly, the conduct of the executive. Now, without referring to the prisoner's thanks to the judge, it seemed generally admitted that the conduct of the latter was altogether free from blame, and with respect to the executive, the application made to Government has been met by a relaxation of punishment, which the hon. Member for Montrose had admitted to be commensurate with the circumstances of the case. He need not go into further details, as he hoped that the hon. Member for Finsbury, with that discretion which did not often desert him, would withdraw the motion.
§ Mr. T. Duncombe
said, that Jones denied that he had ever thanked the judge. It was to the jury he returned his thanks, and this was confirmed by his friends. The right hon. Baronet referred to a memorial which he (Mr. Duncombe) had sent in on the part of Jones. That memorial referred to the treatment of the prisoner, and till that moment he (Mr. Duncombe) had never known the result of his application. He had acted in this case upon the principle by which he was generally guided. When a grievance was placed in his hand, if he believed that the grievance could be proved, he held it to be his duty to bring it before the House to the best of his ability, nor would he allow himself to be deterred by any Secretary of State from doing what he thought himself bound to do, though he would be very glad if people would place their grievances in any hands rather than his. He had so much respect for the legal abilities of the learned sergeant, that he should at once accede to his suggestion, and withdraw the motion. But as to the learned judge's friends complaining of what he (Mr. Duncombe) had done, he really could not see upon what ground they could rest their complaints. On the contrary, the learned judge and 206 his friends ought to be very much obliged to him (Mr. Duncombe) for bringing this case forward, and thereby affording them an opportunity of correcting any misapprehensions that might have gone abroad.
§ Motion withdrawn.