DAVISON FOR LIbel in the RepuBLICAN, AND DEISTS' MAGAZINE. COURT OF KING'S BENCH, Oct. 23.

THIS was an indictment upon the prosecution of the Society for the Suppression of Vice against the defendant, a printer in West Smithfield, for publishing, vending, and uttering certain profane and blasphemous works, being the 9th number of a publication called "The Republican;" and the 1st number of another publication, entitled The Deists' Magazine."

Before the Jury were sworn the defendant rose, and requested that each gentleman might be severally asked, whether he was, or was not, a member of the Society for the Suppression of Vice.

Mr Justice Best declined putting that question to the four special jurymen who appeared; but had no objection that it should be addressed to the talesmen.

The question being put, the whole of the Jury answered it in the negative. Mr Gurney opened the case. The learned Counsel dwelt upon the open, nay, the ostentatious manner, in which the most pernicious doctrines were at the present day promulgated; and insisted upon the absolute necessity of prosecutions, in order to protect the best interests of society. He concluded by reciting the objectionable passages in the works impeached, which were contained in the 138th page of "The Republican," and in pages 1, 7, and 10, of "The Deists' Magazine."

Joseph Branscomb and Andrew Fray ley, agents of the Society for the Suppression of Vice, proved the purchase of the books in question on the 4th

February, 1819, and on the 1st April,

1819.

The libels were then put in and read. The passages complained of are too long for insertion. Those in "The Republican" declared the existence of a just and equitable code of laws to be incompatible with the existence of the Christian religion; and those in "The Deists' Magazine" proposed to refute the falsehoods, absurdities, and impossibilities set forth in the Holy Scrip

tures.

The defendant said, that, for want of means to employ either Counsel or Solicitor, he pleaded for himself. The Jews, the Quakers, and the Unitarians, had been persecuted in the first instance; they had afterwards been tolerated. The same fate would attend the followers of Deism. Let the Jury remember, that at one period they would have been tortured for profess ing the very Protestant faith which they were now called upon to defend; let them reflect that the remorseless inquisitorial feeling which had insti tuted the present prosecution, was the same feeling which had lighted the murderous flames in the days of Queen Mary, and had filled the dungeons in the reign of Elizabeth; and better it would be, and more merciful and more humane, to burn him (the defendant), his wife and children, in Smithfield, than to send them to pri son, destitute of all means of existence, and debarred, by confinement, of all power of acquiring those means. It had been said, that the man who pleaded his own cause was a fool. The fact might be so; but he thought it better to take that course than to hire a bar rister to make a sham defence; for that which was the honest defence no

counsel could be prevailed upon to set up.

Mr Justice BEST would not suffer so scandalous a charge to be brought against the gentlemen of the bar. The defendant.-My lord, you must not interfere with my defence.

Mr Justice BEST.-Mr Davison, I should be extremely sorry to use the power with which this seat invests me. If you think that my power extends only to removing you from the Court, you are mistaken; I have the power of fining you whenever you transgress the bounds of decency, and I will do so if you presume again to offer any insult to me or to the profession.

The defendant. If your dungeon is ready, my lord, suffer me to give you the key.

Mr Justice BEST.-I fine you 201. for that expression.

The defendant continued-The Jury had heard of vicious practices, and of vicious tendency. Why was all this weight of accusation to fall upon the needy and the low? Why did they not prosecute the titled blacklegs, the demireps of fashion? Why try to purify the streams when the sources were corrupt? The matter complained of in the Republican was contained in a letter published in that journal, purporting to be addressed by a Mr G. Smith, at Peterborough, to Mr Carlile. Since the publication he had made inquiry, and had found that no such person as Mr Smith was known at that place. Probably some infamous agent, some Edwards, some Franklin, had written the letter first, and was prosecuting for it afterwards. The defendant then contended that every sect had a magazine of its own; and that the Deists were entitled to the same privilege; and went on to treat the Bible as a work contrary to the honour of God, and destructive to the bests interests of society.

Mr Justice BEST.-I cannot endure

this. The empire of the laws must be vindicated or abandoned, and it shall not be abandoned in my person. I will not sit in this place and hear the religion under which I am sworn to administer justice scoffed at and insult. ed. I fine you 401. more, sir, for that offence.

The defendant.-Then I must leave myself in the hands of the Jury.

Mr Justice BEST.-I have submitted with patience to hear myself insulted, and persons aspersed who are not present to defend themselves; but I must not hear the religion under which I am acting reviled. You must and shall conduct your defence with decency.

The defendant read through the libels in question; and afterwards read certain passages from Nos. 3 and 4 of "The Deists' Magazine," with a view to shew that it was a work dedicated to polemical discussion, and open equally to either side of the argument. He continued.-The Deists were attacked; how were they worse than the Christians? Look at the murderers, the thieves, who were, Heaven knew, too frequently executed at the old Bailey; what were they? Christians. They all died in Christian principles. No wonder, for the dissolute and the depraved were too idle to become Deists, or to think for a moment upon any subject. But what were the higher orders who had the power of thinking? What were the lords and the bishops? Infidels, sceptics all.

Mr Justice BEST.-The defendant is asserting that which he knows to be false, and I am determined not to hear these calumnies. Justice shall not, in her own sanctuary, be insulted and defied. I add 401. more to the 601. which I have already fined you; and remember, whatever becomes of this cause, those fines must be paid.

The defendant proceeded. He was not worth 101. in the world; that he

should pay the fines was impossible; but he must go on with his defence. He would not offend the learned Judge if he could help it.

Mr Justice BEST.-Do not suppose it offends me; it is too contemptible. The defendant said that he spoke of the principles of the great from the selection of their libraries. He thought it impossible to select works of greater infidelity than those of Hume, of Gibbon, of Shaftesbury, of Burgess, and of Bolingbroke; and concluded his address to the Jury with occasional extracts from those authors.

Mr Justice BEST proceeded to deliver his charge. No man, he said, could be more firmly convinced than himself how absolutely necessary it was for a judge to keep his temper in every case that came before him. Where a defendant thought fit to plead for himself, he placed the judge in a delicate situation. A judge so circumstanced would naturally be disposed to bear perhaps even more than ought to be borne, but even to that forbearance there must be a limit. That limit passed, how was he to act? If he used the power of commitment, it might be said, and fairly said-had the defendant been allowed to go on, he might have induced the Jury to acquit him. Under such circumstances no verdict of guilty could be satisfactory; and the law, forseeing the difficulty, had given to judges on the bench a power to fine such persons who should offend against decorum, who should wilfully insult the law or the religion of the country-the government or the ministers of that government-when the conduct of such ministers was not at issue in the cause. In the course of the day, the learned Judge continued, he had thought it his duty to inflict four several fines upon the defendant; which fines, unless he (the Judge) remitted them, that defendant would be compelled to pay. The object of those fines was answered; the inundation of

blasphemy which threatened the Jury had been arrested; enough had been done to shew the power of the Court; the fines were now remitted; and, with whatever warmth his feelings might have been expressed, those feelings should in no tittle prejudice the case of the defendant. The question resolved itself into this :-Was an attack upon the established religion of the country

was it, or was it not, a blasphemous and a profane libel? That which he believed to be the law of England upon that point he would state to the Jury. Every man had a right to state that such or such an opinion, no matter whether a tenet of a particular sect or of the established church, was an erroneous opinion, and to support his assertion by any arguments which he could call to his assistance. Further than this, however, discussion could not be carried. Decency of expression must be preserved; and received or tolerated opinions must not be treated with contempt. Persons were at liberty to put their own construction upon the texts of Scripture; but the truths of Scripture could not be disputed. He (the learned Judge) thought, as far as his personal opinion could go, that men might safely trust to the truth of a religion which had endured during a period of eighteen centuries, which had been trusted and professed by such men as a Newton, a Locke, a Boyle, and a Johnstone, and which formed the foundation of every institution most valuable, most invaluable, to the country in which they lived. The offending matter in the 9th number of the " Republican" was couched in the shape of a letter, from some person calling himself Smith, to a man of the name of Carlile, who was even at the date of that letter suffering under the sentence of the law. The Jury had heard that letter read; it declared that a people, if they would be blessed with a perfect government and an equitable code of laws, must

renounce the Bible as the word of God. That single assertion he should deem sufficient. He had read the works of Hume, of Gibbon, of Bolingbroke, and of other writers, whose example had been relied upon by the defendant; and even those names he would use as an argument against him. Those writers had questioned the truths of Christianity, but every one of them had admitted the excellence of its morality; so far indeed from holding it to be inconsistent with morality or liberty, many of them had insisted that its principles did not originate with the great Founder of the system, but were borrowed by that Founder from the philosophers who lived before him. His lordship would send the case to the Jury upon one single point. If they thought that the works in question were fraught with scurrility, with abuse, and with vituperation against the established religion of the country, then it was their duty to find the defendant guilty; if they thought that those works were specimens of fair argument and of temperate expression, they would pronounce a verdict of acquittal; if they doubted, to the benefit of that doubt the defendant was entitled.

The Jury, without hesitation, found the defendant Guilty.

November 15.

Mr COOPER moved for a rule to shew cause why the verdict of " Guilty" should not be set aside, and a new trial had. The grounds upon which he addressed his motion to the Court were, the learned counsel said, equally novel and important. He held in his hand an affidavit of considerable length, which it would be his duty to read to their lordships. The affidavit set forth that the deponent, being a poor man, conducted his own case at the trial, and that in reading a written defence he had the misfortune three times to in

VOL. XII. PART II.

cur the displeasure of Mr Justice Best, who thereupon fined him three several times, such fines amounting together to 1001. That he (the deponent) being informed by the Judge that, whatever might become of the cause, the fines must be paid, and having a wife and children at home, who might, by the levying of such fines, have been turned into the street, became troubled and intimidated, and incapable of proceeding in his defence. That not knowing what might, or might not, offend the learned Judge, he became afraid to proceed with his written paper; and did, in consequence, omit and fail to state to the Jury many parts of it which might have given a favourable colour to his case, and against which no moral, legal, or religious objection could have been urged. The deponent further alleged, that, but for the interruption he experienced, he should certainly have made an impression upon the Jury, and probably have succeeded in obtaining a verdict of acquittal. The first fine of 201. had been occasioned by the defendant's asserting that, in a case like his, no counsel would make an honest and a manly defence; the learned Judge interfered, and the defendant then said, "My lord, if your dungeon is ready, suffer me to give you the key." He (Mr Cooper) did not mean to deny, he could not be so absurd as to deny, that a Judge had the power of fining for contempt, but then that contempt must be open and express; it must be something either bringing the Court itself into contempt, or obstructing its proceedings." In this, the first instance, at all events, no such act had been committed. With respect to the passage which had produced the second fine of 401., he, the learned Counsel, did not hold himself bound to defend the principles which that passage contained. [It was the passage in which the defendant treated the Bible as a work contrary to the honour of the Deity, and subversive of the

Q

interests of society.] That passage, as it appeared to him, merely described the causes which brought the Deist into disrepute with the Christian; simply meant- —a Deist is not a Christian; and how that passage could fairly draw down a fine upon the head of the defendant, he (Mr Cooper) was at a loss to imagine. The third passage which had proved offensive to the learned Judge was that in which the defendant had declared that the higher orders of society were sceptics.

Mr Justice BEST.-Those were not the words; the words were these"the nobility are blacklegs, and the bishops infidels."

Mr Cooper could only speak from his affidavit. The words of his affidavit were those which he had read; and upon those words he was bound to contend that there was, at least, nothing new in imputing scepticism to the higher classes of society. It was im possible to take up any essay upon political or moral economy, without finding the vices and bad conduct of the poor imputed, in a great measure, to the laxity and evil example of the rich. In neither, then, of the three offending passages, the learned gentleman begged to say, could he find any cause for the imposition of a fine; nor was he aware that in any case, such a power could be exercised by a judge at Nisi Prius. He had been able to find no instance in which such a power had been claimed; and he had found the strongest negative authority to shew that no such power did exist. Upon principle, how ever, independent of all precedent, he should contend that the right of imposing fines, the amount of which would be limited only by his own pleasure, was a power too dangerous to be intrusted to any Judge. Let their lordships look at the effect of such a power. Let them imagine a man put upon his trial, say for sedition, or for treason, and conscious of his innocence-let

them suppose such a man having left to his wife and to his infants, to those objects which frequently made the best and firmest men mere slaves and cowards, a provision, a sustenance, in case of the worst. Let them take such a being coming fearlessly into Court, and boldly attempting to acquit himself of crime; and let them view that man carped at, cavilled at, attacked by such judges as England had seen, and as Heaven forbid that England should ever see again. Let them follow the trial, and see him stopped in his defence, told "I fine you a thousand pounds for what you have said; and, if you offend again by what you say, I will fine you a thousand more; and remember, whatever happens to the cause, your fines shall be paid." Let their lordships put themselves in the place of a man so situated; a prison, perhaps the block, menacing himself on the one side; beggary, hunger, and desolation, threatening his helpless family on the other. How would such a man act? Would he hesitate one moment, as the lesser evil, to sacrifice himself? He would not hesitate. If he were a man, he could not hesitate. He would wave all resistance, and submit to the iniquitous verdict which would be pronounced against him. If their lordships did sanction this proceeding by fine, such a thing as a bold and spirited defence would never again be heard in a court of justice. By no means, however, did he propose to contend against the right of a judge to commit for improper conduct. Not only was that practice fully recognised, but it was, as compared with fining, a mild and charitable course. A man interrupted in his defence, and sent to prison, would have leisure to reflect upon the impropriety of his conduct; he would have time to purge his defence of the objectionable matter, and would come again, in a reformed state, before the Jury who were to convict