The British Press; or, Morning Literary Advertiser.
London, England, 1819-08-21 00:00:00

R. PIERCE CHUM

Mr. Cartystr. sous', that this was IA criminal in-
f. wination grained by the Court of King's Bench
ligation the Deferidatit, for ti libel. at the prosecu-
I lull of Mr. Richard Cox Bowden O'Brien. There
terve several counts in the aaaaa ;aim) laying the
mien its vartnnv ways, soil as it would he read in
jiie course of the trial, it was unnecessary that he
should that call the attention of the Court more
particularly to
• The traverser pleaded it'at Gori!ty.
Mr. O'CoN N El. 1. stated the case for the Crown.
The fol.+ of this c.ese, he observed, were few, awl
vie I it. in respect to it was plain and obvious.
:'hr Drfrnel:u.t WH.I charged as the printer and
rublisher of the libel its question. and that be
seas both would appear felon his own affidavit,
'4.llPrein he stated, that he WWI the sole proptir-
tor of the Newspaper. Vie Western Herald, in
v.hirli the libel appeared. It was right to way that
• Delendasit was a much-respected person. and
thitt lie wa. incapable of composing a libel, end at
!ter onset, impressed with this conviction, he. Mr.
11, would consent to • verdict of acquittal,
it. Mr. Chute would pay his client's costs, and give
• the author of the libel. He could not complain
of puyintr the costs, as, before they were incurred,
L ll oiler had been made to forego the proceedings
•i4aiiist him if he gave, up the author. Mr. O'Con-
loll waited for a reply, and his proposition not hay-
iag bents 'weeded to, lie proceeded oith his state-
viesit, and said, lie etas now justitisd in placing the
Defrodant in the situation of the person who com-
posed the 116.1, in as much as he took the responsi-
bility of it upon himself, and thereby screening 11w
original offender from justice. The real prosecu-
tor. 'Ale. O'Brien. was tharged by the libel in tines-
tion—tit.t, with bring concerned in the mutiny at
time Nine, and as having escaped capital punish-
ment no that occosion only on account of his youth.
He' next 'charged him with vagrancy; and suttees-
eitely with bigamy ; with committing fraud on the
owners of • small trading vessel out of Dingle, in
this county; roil with piracy. This publication
•ppearesl in the Defendant's Newspaper in the
'loath of October lam. mid it.apiwared to be em-
bodied in the report of the proceedings on a trial
in a ("mot- of Justice—in fact. the libel purported
to be the speech of Coulowl. Mr. O'Cou, ell ad-
nutted. that a fair and vanilla report of the pro.
i•eeilings In a Court of Justice, although by it an
is jiffy may-be iliflicted on a party, Was legally pro-
tectid; ms v, if the person looking the report were
e.en mistaken, yet if a reasonable mind could
e onceive the matters stated by I to be relevant
to, or-comlocite" fu the purposes of the trial. the
politic:oton would be protected. But 11w libel
here arose out of is trial for an assault alleged to
Eire been committed by Mr. O'Brien on a con-
s:able at Dingle. and how far such a transaction
'bold be elucidated by • reference to the moony
at the Note. or the various other offences laicized
to have been committed by his client, be. Mr.
O'Connell, was totally at a loss to conceive.—
it.or the purpose of the prosecution, or of the de-
fence. such topics were altogether unnecessary
nod irrelevant; yet .the Publiertion purported to
he the statement of Counsel, on a trial fur a com-
-111011 assault, mid to have been made ley • Gentle=
unto who wallets* • Magistrate of the county, and
who might in the piece where he ass then acting
iv-Counsel, also preside es Judge if he pleased,
—lt may be said. on the present trial, that all
these things let forth lit this publication, were
uttered during the trial alliaded to. If the Defeo-
dont failed in that, there was no question of law
to be raised; if lie did not fail the C t would be
called nu fur its opinion, how far a garbled and not
• full report of proceeding's in a Conrt of Justice
could be tolerated. ' He rehrd on general priori-
Ors. that it could not, particularly its u case in
Aw l. which he cited, where • highly-coloured
&trivalent of Counsel was decided 10 be libellous.
I,' the prevent care the report which hod terra pub.
/And. was not • full one, for it would apprar
that the statements made by the Defesodont's agents'
were ausittadattageibar, as went metal facts that

4,11)07111 • •
ea. the ezasibiatioo of the witortmoVand
oho the fact of Mr. O'Brien's acquittal on One of
• the indictments upon which he was tried. With
respeet to the publicatinis itself, mit a secood opia
i.uulis could tsCritermr/t4pou it. It was se grass
libel is ever 1 iv
I J,thie.Nehrgini proved•the Defendant's hand-
writit:g.to the affidavit alluded to by Mit O'Coos•
nell'aitilesnent. bring cross-exaninsed. he
I «Ad! tat the Defeuthisit bare no loran('
Mr, &Brien, anti that he was convinced the De-
riotslant.had• pablisheiMtaiVort in question, be-
lieving it to he a corieer report of what oeriirred
on the trial. The Defendant was a twallri.t awl
CitilWial man, and was not likely to wound the
fellings of any W 3411. and be offered to publish a
refatation of the report for Mr. O'Brien. The
Defendant was not the author of the report. ss
witness believed. There was a trial of which the
pUblicetion purported to be a report.
Mr. Palmer, from the Stamp-Office, produced
the Newspaper deposited there,in which the publi-
cation complained of was contained.
Mr. David Fitzgerald, attorney-at-law, was next
examined.—He was employed, as was soother pro-
frosiototl WWI. for the defence, on the trial which
gave rise to this pubLcstion. There were two
indictments against Mr. O'Brien, one for an as-
sault on Mr. Hussey, the barrister; tile other for a
rescue, at the prosecution of a men rained Nur-
. ploy. Ile was convicted of the assault, but me-
g/toted of the rescue. Tne whole of what passed
on the trials was not reported. nor was all the evt-
desire that had been given. but the atatemeut of
Counsel, as given in the publication aid charged
here as the lihel, was tittered as it was published.
and correctly reirorted. Mr. Hussey acted as
Cousi.el sod wittieos. He did not believe that the
certificate of the alleged marriage of Mr. O'Brien
in Liverpool, though stated by Coansel, appeared
in evidences as stated in the report.
On his cross-examination this gentleman said.
that O'Brien admired he had been married two or
three times, and that lie thought himself justified
in marrying another woman, when the wife he had
before been monied to got married to another man
in his absence. Other circumstances appeared
from this gentlemaies examination, which it is un-
necessary to notice.
The alleged bin!: wit here read. It appeared to
he the report of the trial of the present Prosecutor,
Mr. O'Brien, at the Sessions held for the county of
Kerry iii October hist, for au assault, alleged to
have been committed on Counsellor Hussey, and
the passages complained of appeared to be intro-
duced in Mr. Hussey's statement of the case for
the prosecution.
The Plaintiff's case having closed, Mr. Goold
addressed the Jury on the part of the Defendant.
Ile said it would be a lamentable thing indeed,
if the Defendant, after being the publisher of at
riewspeper for 25 years, sod in bad and troubles
some times. was to he convicted of an atrocious
libel, and that after what the Jury heard from
the last witness ; and which. if they believed,
they most not only acquit him of such an offence,
hot u.ey, as well as every other man, must ad-
mit, that he only did, in giving the report in
question. what lie hail a right to do. Mr. Gaols,
said that he mind allow that Mr. O'Connell's
statement of the case for the prosecution, wits fair,
candid, letidl liberal. He agreed in most of the
principles laid down by that Gentleman ; but he
must recollect that, iu the case of Magee against
O'Gorman, which underwent • laborious Inver.
ligation, the circumstance that ousted the privi-
lege claimed by the publisher, was not the re-
port of the trial, but the comment of the Editor
un ilie question at issue. But never was it held,
that a (lir, unprejudiced report of the proceeds
ines in a Court of Justice subjected the pub-
holier to a prosecution or action for a libel.--
Free discussion was essential to the administra-
tion of Puttee, and it was in vain to confine with.
iu
circle of technicality the fancy and genius
of an advocate, warm in what he conceived the
cadre of justice. 'lite barrister could be restrain-
ed in Court from stating matter irrelevant to the
cause at issue; but if it were allowed by the
Court to be introduced, surely it could not he
a crime in • rioter to publish what had been
sanctioned by a Court of Justice. Mr. O'Con•
nell was the lest mon that should raise his voice
against publishing the reports of public proceed-
ings red public speeches, for if it were not tole-
rated and protected. he must be a serious sufferer
indeed. The press helped to raise him into no-
tice, and if some of the eloquent speeches of his
rived (11r. O'C.), and of many others, were ea-
u ttttt led 4111 principles of philosophy and mete techni-
cality. perhaps they would not in every particular
stead the toot of sorb examiriation. The principal
question for the J airy here Was. did the Defendant
puliltoli e hat he conceived to be a fair, impartial,
and unprejudiced report of what took plate? If yes,
God forbid he Arnold lose one moment of his liberty,
or tow gullies out of his pocket, upon that wino-
plc which ages had consecrated ! Mr. Goold here.
in a very • awl strain. dwelt upon the advantages
tif • flee limos, am' observed, that whatever its
little aberrations or delitopienvies may be.lie trotted
that it would continue to be protected when giv-
ing fairly and intioirtially to the world the history
or public pioceeilingo. lu the present case all
the wituesses negatived the idea of malice, sod it
appeared distinctly that what was published was
actually uttered'ai the ttril. But it was said, that
it was a garbled report, inasmuch as it gave the
report el wily one of the trials. The answer to
that was, that for aught the Court or Jury knew.
the other report slip...tied the next day. And the
Jury had it in evidence, that the Defendant otters
rd to publish any refutation of the report that
may be furnished him by the Prosecutor. The
fact was, that O'Brien did not accuse the Defend-
rut of publishing what did not occur, but the seve-
rity that did; attd lie would ask, did the Jnry ever
hear of a criminal iuformation, or an sctitin be.
int( sustained, where it appeared from the par-
ty's own witnesses, that what was published, as
the report of a public investigation in a Court of
Justice, hail actuslly taken place ? Mr. O'Ciiii-
titll asked the Defendant to give up the composer,
mid he talked something of his having obtained au
indemnity, but no lawyer would say that • legal
indemnity could he given in such a case; sod what-
ever may be the destinies of this gentleman, of hit
fortunes, or his family, let it be stated; Aetna re.
foatug to give op the entbere be bee acted se high

Principles di honour, aad•ahewn a fidelity too which
k. may pin hie own el:erecter hot let not hie lidev
.lily 'be htlotitht. is jadgmeot @realist him; it was
11w fidelity of • 'lna* of truth and of honour. Mr.
(boold ceuelodrd a ve►y eloquent address, by say-
ing. that. Mit MIS admitted that what the Defeo.
dent publi.hed had actually occurred in a Court of
4ity'llery however it may be regretted the, it did
I.rka -place. it was i®p•ewble the Jury mold con-
vieNthe
I)cferidaiit. •

• The Defendant called no witness.
Herm SIS Tit proceeded to charge the Jury. Hit
Lordship said, it appeared has the Defendant was
the printer anti publielier of a certain Newspaper,
called The Wester* Hersh!, and he was, therefore,
respoinible fee every putilication that ;immured
ill
it, no'nsatter whether lie was the composer or edi-
tor of it or not. The publication in question, un-
der ordinary eircunteasices, would utiquestionebly
he libellous. lint the principle of haw was, that a
fair wail full publication of proceedings had in •
Court of Justice, though the character of a ;remit
might be materinlly injured by it, vois 110 libel :
that is, if it were a full end fair report, end not a gar-
bled one. The questiose then, to try was, whether,
opal the evidence Isere giveu, the publication read
to the Jury was a fair report of what took place on
the trial, au account of which it purported to give.
It unipsestionably did appear that much and se-
vere discussion occurred on that trial, that was by
tot means relevant to the question then before the
Court. lie was far from saying. that Counsel
was obliged to prove every item of his statement;
it was enough for him if lie kept within the ex-
tent of his instructions; but the Counsel or Pro-
secutor, in ally case, ought not wantonly intro-
duce atiy irrelevant matters, particularly, it they
tended to defame a man's character; and if a
lawyer knew his profession, lie certainly would use
the license he possessed with a judicious hand. If
the Defendant. in this case, did no more than re-
port what took place, although a good deal had oc-
curred that ought not, his case should not be taken
out of the protection or the law, because he pub-
lished that which was tolerated by a Judge its a
Court of Justice. This statement of the Counsel
on the trial for the assault was certainly the most
offensive part of the publication, and in respect to
the report of the evidence, there did not appear any
difference. at least of such a substantial neture, as
to lead a Jury to suppose there was any intentional
°minion. or which was calculated to nuke them
believe that the publisher intended to mislead the
public. A good deal of animosity and ill-blood
appeared oo the trial; end if what occurred was
considered not unbecoming a Court of Justice to
hear. it surely may not be thought lint:roper fur
the Editor of a newspaper to allow in has columns.
The Defendant, too, gave a proof of his prompti-
tude to appease the feelings of the Prosecutor, by
his offer to publish any refutation of the prior
statement. or to correct any error that had crept
into it. if the Jury did not believe-the report to he
unfair and a gadded one, and that no part of what
ocean red on the trial was intentionally omitted, they
would be justified, under the evidence, of ac-
quitting the Defendant.
The Jury found a verdict of acgrittal.