THE KING v. JOHN CUTHELL.

February 21st, 1799.

I RISE to address you, Gentlemen of the Jury, with as much anxiety as I have ever felt in the course of my professional life.-The duty I have to perform is difficult and delicate.-I am Counsel for Mr. Cuthell only, who is charged merely as publisher of a writing, for which the Reverend Gentleman now in Court (and who is to plead his own cause) is immediately afterwards to be tried, on another Indictment, as the author. The rules of law would entitle Mr. Cuthell to a double defence; he might maintain the innocence of the book, because his crime as publisher can have no existence unless the matter be criminal which he has published; and supposing it to be criminal, he might separate himself, by evidence, from the criminal purpose charged upon him by the record.-The first of these offices he must not be supposed to shrink from because of its difficulty, or from the force of the verdicts which the Attorney-General has adverted to as having been given in the city of London; Mr. Johnson, who

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was there convicted, stood in the ordinary situation of a bookseller selling a book in the course of his trade-on that occasion I thought myself bound to make the defence of the book; but the defence of a book may be one thing, and that of its publisher another. There can be no proceedings IN REM by an Attorney-General against a book, as against tea or brandy in the Exchequer.-The intention of the author and of each publisher involves another consideration, and it is impossible to pronounce what opinion the Jury of London might have held concerning the book, if its author had been to lay before them his own motives, and the circumstances under which it was written. Even after Mr. Cuthell shall be convicted from my failing in his defence (a supposition I only put, as the wisest tribunals are fallible in their judgments), the verdict ought not, in the remotest degree, to affect the Reverend Gentleman who is afterwards to defend himself.-His motives and intentions will be an entirely new cause, to be judged of as if no trial had ever been had upon the subject; and so far from being prejudged by other decisions, I think that, for many reasons, he will be entitled to the most impartial and the most indulgent attention. These considerations have determined me upon the course I shall pursue.-As Mr. Cuthell's exculpation is by disconnecting him, self wholly from the work as a CRIMINAL publisher, from his total ignorance of its contents, and, indeed, almost of its existence, I shall leave the pro

vince of its defence to Mr. Wakefield himself, who can best explain to his own Jury the genuine sentiments which produced it, and whose very deportment and manner, in pleading his own cause, may strikingly enforce upon their consciences and understanding the truth and integrity of his defence. Observations from me might only coldly anticipate, and perhaps clash with the arguments which the author has a just, natural, and a most interesting right to insist upon for himself.

There is another consideration which further induces me to pursue this course. The cause, so conducted, will involve a most important question as it regards the liberty of the press; because, though the principles of criminal and civil justice are distinguished by as clear a boundary as that which separates the hemispheres of light and darkness, and though they are carried into daily practice throughout the whole circle of the law; yet they have been too long confounded and blended together when a libel is the crime to be judged. This confusion, Gentlemen, has not proceeded from any difficulty which has involved the subject, because, of all the parts of our complicated system of law, it is the simplest and clearest ; and clearest; but because POLITICAL JUDGES, FOLLOWING ONE ANOTHER IN CLOSE ORDER, and endeavouring to abridge the rights and privileges of Juries, have perverted and distorted the clearest maxims of universal jurisprudence, and the most uniform precedents of English law,-Nothing

can establish this so decisively as the concurrence with which all Judges have agreed in the principles of civil actions for libels, or slander, concerning which there never has been a controversy, nor is there to be found throughout the numerous reports of our Courts of Justice, a discordant case on the subject; but in Indictments for libels, or, more properly, in Indictments for political libels, the confusion began and ended.

In the case of a civil action throughout the whole range of civil injuries, the master is always civiliter answerable for the act of his servant or agent; and accident or neglect can therefore be no answer to a Plaintiff, complaining of a consequential wrong. If the driver of a public carriage maliciously overturns another upon the road whilst the proprietor is asleep in his bed at a hundred miles distance, the party injuring must unquestionably pay the damages to a farthing; but though such malicious servant might also be indicted, and suffer an infamous judgment, could the master also become the object of such a prosecution? CERTAINLY NOT.-In the same manner, partners in trade are civilly answerable for bills drawn by one another, or by their agents, drawing them by procuration, though fraudulently, and in abuse of their trusts; but if one partner commits a fraud by forgery or fictitious indorsements, so as to subject himself to death, or other punishment by Indictment, could the other partners be indicted ?To answer such a question here would be folly; be

cause it not only answers itself in the negative, but exposes to scorn every argument which would confound Indictments with civil actions. WHY then is printing and publishing to be an exception to every other human act? WHY is a man to be answerable criminaliter for the crime of his servant in this instance more than in all other cases? Why is a man who happens to have published a libel under circumstances of mere accident, or, if you will, from actual carelessness or negligence, but without criminal purpose, to be subjected to an infamous punishment, and harangued from a British Bench as if he were the malignant author of that which it was confessed before the Court delivering the sentence, that he never had seen or heard of? As far, indeed, as damages go, the principle is intelligible and universal; but as it establishes a crime, and inflicts a punishment which affects character and imposes disgrace, it is shocking to humanity and insulting to common sense. The Court of King's Bench, since I have been at the Bar (very long, I admit, before the Noble Lord presided in it, but under the administration of a truly great Judge), pronounced the infa mous judgment of the pillory on a most respectable proprietor of a newspaper, for a libel on the Russian Ambassador, copied too out of another paper, but which I myself showed to the Court by the affidavit of his Physician, appeared in the first as well as in the second paper, whilst the Defendant was on his sick bed in the country, delirious in a fever. I be