Star.
London, England, 1821-11-14 00:00:00

THE KING V. MARY ANN CARLILE.

The defendant, it will be recollected, was prose-
cuted at the instance of the Bridge street Society,
for the publication of some of Paine's Theological
Works, tried before Mr. Justice BEST, at Guildhall,
and found guilty.
Mr. COOPER now, on behalf of the defendant, who
appeared on the floor of the Court, applied for a rule
to shew cause why that verdict of Guilty should not
be set aside, and a new trial granted. The Learned
Counsel said, he made this application on the affi-
davit of the defendant herself, who stated, that she
had been stopt by the Judge in making her defence,
upon the grounds that she used improper expressions.
The particular passage in which the Learned Judge
interposed was to the following effect :—Had the
prosecutors of this indictment proceeded against me
under the Statute for reviling the Holy Scriptures,
the penalty would have been disqualification for
office; but this would not have satisfied their vindic-
tive motives, and therefore they have prosecuted rue
at common law, which is a common nuisance.
The Cater Jostica.--And supposing the Learned

Judge to have stopt the defendant on this passage, is.
it a passage which can be defended ?
Mr. COOPER.—If your Lordship puts it to me per-
/ sonally, I should say it is
.—PerSOIIS not defensible.
1 Mr. Justice BAYLEVe standing in your
honourable situation, Mr. Cooper, Cannot defend

such expressions.
Mr. Cooeett —My Lord, I am only stating the affi-
davit, of which I have yet read only a very sMall
portion; the affidavit goes on to state, that the Learned
Judge stops the defence altogether.
Mr. Justice Basr.—You were in Court, Mr. Cooper,
and katiw better.
. Mr. Coopers.—l beg your pardon, my Lord,.l was
not in Court.
Mr. Justice Besr.—l beg your pardon ! •
Mr. COOPER.—I beg your pardon, my Lord, I was
not in Court! I was at breakfast in the coffee-room.
The affidavit went on to state, that the Learned Judge
did say, " Go on ; but if your defence contain any
thing of a similar nature, I shall stop you again."
Mr. Justice BEST.—NOW, Mr. Cooper, as you were
not in Court, and profess not to know what passed, I
will state to the Court and you what really did take
place. The cause was called on, and the defendant
appeared to defend herself. She objected to any.
person who was a Member of the Society serving en
the Jury. I said I believed there was nothing in the
objection ; but, for her satisfaction, I asked every
Gentleman as he entered the box, whether he was a
Member of the Society ? and received an answer iii
the negative. The cause proceeded, and the case for
the prosecution having concluded, the defendant
handed a written defence to the Officer, who, at her
desire, commenced reading. Some part of it I ob-
jected to, as going to question the truth of the Chris-
tian Religion, but allowed the Officer to prcceed
reading till additional offensive matter was stated,
and at the passage which you have stated I again in-
terfered, and observed, " Madam I cannot allow you
to go on with such a defence as this." She said, " I
can make no other ;" to which I replied, " I hope
you can advise with your friends." She observed, she
had no friend to advise with. I told her there was
not a Gentleman at the Bar who would not advise
her what to expunge as objectionable matter, if she
consulted them, but she still said she had no other
defence, Some of the Jury then interposed, and ad-
vised her to adopt the course I recommended, observ-
ing, she was hurting her own cause by refusing to
do so. She at length retired, and a friend with her,
and after being out of Court a short time, she re-
turned and handed this paper to me—" My Lord, I
have only to say this is my defence, and if the Court
say that an Englishwoman has no right to declare,
that which she considers as essential to her defence,

I must abide the consequences." I observed, I could
not suffer this mode of defence to be adopted, and
could not but consider, as the defendant was de-
fended in the next cause by a Gentleman at the Bar,
that she adopted the course of defending herself in
this cause, as affording her the means of uttering, in
this very Sanctuary of Justice, sedition and blasphemy,
which she could not utter or publish in any other
place; and under a persuasion that it was my duty
to prevent her doing so, and that I should be un-
worthy of holding the situation I now do if I acted
otherwise, I stopt her proceeding.
Mr. Cooraa said, he was not in Court at this time,
and if he had he should not have advised the defend-
ant, although he was instructed to defend her in the
next case, and he trusted that, whenever the interests'
of another were submitted to his keeping, he should,
as a barrister, never shrink from the duty of defending
them; and presuming every one, whatever the offence
he might be charged with, innocent until found',
guilty, when he ceased to discharge that duty fear-
lessly, he should consider himself no longer worthy
to wear the gown. Should any one, when looking
at his conduct or his actions in profession, like a
child going to a Play, confound the actor with the
part be had to sustain, he could only say he should
always hold such persons and their opinions in the
most sovereign contempt, be they who they might.
Ile had no doubt the Learned Judge now stated facts
as he believed they passed, and to the best of his re-
collection, but still he must contend that the defence
had been improperly stopped.
The CHIEF JUSTICE asked if the affidavit of the
defendant now went so far as to state that there was
any part of what defendant had been prevented read-
ing which was unobjectionable?
Mr. COOPER said it•did not, but it was fair to pre-
sume that there was some part not objectionable;
and, as in the King v. Davison, the defendant ought
to hare been allowed to proceed, she would have
done so at her peril, and, if found again offending,
the Judge could have punished her by fine and
imprisonment.
Mr. Justice 13.m.zy.—That would not have the
desired effect ; the evil was the utterance of improper
matter, which, having insinuated itself into the minds
of the by-stanclers, no fine could cure.
Mr. Corona submitted that, to adopt this doctrine,
would be to go a dangerous length ; it would be to
declare that no written defence—that no speech of
a Barrister, even, could be delivered until it had
been submitted to a Judge, to ascertain if it could
properly be uttered.
The Coma all uttered a dissentient to the opinion
i thus laid down.
Mr. COOPER repeated his opinion, that such would
be the effect of adopting such a doctrine. The Court,
if such was not the extent of the doctrine, should have,
suffered the defendant to go on, and not have presumed
that all which remained was objection ::able.
Mr. Justice BAYLEY said, a written defence was
different from a speech at once composed and deli-
vered, as the idea rose to the mind. Suppose a Bar-
rister to write his speech in his closet, the Court
would presume it was draon up with due care and
consideration ; and if, in the course of reading it to
the Court, a passage highly offensive was to occur,
and to call for the animadversion of the Court, and
the Barrister when called on to give an assurance
that what was to follow was not equally objectionable,
should decline to give such assurance, would it not
be reasonable for the Court to infer that he declined
to give the assurance because he felt that what re-
mained was objectionable ? and would it not be the
the duty of the Court to stop him from proceeding ?
Mr. COOPER submitted, that the Counsel would
have a right to proceed, thciugh he would do it at
his own peril of incur ring the displeasure of the Court.
As in the case of the King v. Davison, so in this case,
the Learned Judge should have said, go ODI bit you
•