Was he employed for the prosecution?-He was. Did he make any observations to evidence, in the course of that trial?-He did. Look at this number of Cobbett's Political Register, page 808, and read the passage beginning with the words "If any one man could be found of whom a young but unhappy victim of the laws"-Whom do you conceive to be meant by "a young but unhappy victim of the laws?" I should suppose Mr. Emmet. Conceiving Mr. Emmet to be the person alluded to by the words "young and unhappy victim of the laws," whom should you suppose to be intended by the passages, "if any one man could de found," and "that viper whom my father nourished," &c.?—I do not know that Mr. Plunkett was nourished by Mr. Emmet's father. But to whom do you suppose them to apply To Mr. Plunkett. Did Mr. Emmet's counsel make no defence? -None. Right Honourable John Foster sworu.--Exa mined by Mr. Nolan. Lord Ellenborough-It would be a breach of his duty and his oath, to reveal the councils of the nation. Mr. Adam. What are your reasons for believing that Mr. Plunkett is not the person meant by the latter part of the passage?-I said, that, taking the whole context, I should suppose Mr. Plunkett to be the person meant; but, taking the sentence just read, I should not suppose it was him. The evidence being closed on the part of the plaintiff, Mr. Lowten read the passages in the Political Register complained of in the declaration. DEFENCE. Mr. Adam.-My Lord, and Gentlemen of the Jury;-The task now devolves on me to Occupy a portion of your attention. My learned friend, in his address to you, has made repeated allusions to the proceedings which took place on a former day. He tells you, that he observes the names of the same jurors on the panel, and that he sees the same faces in the box. Gentlemen, I am not, indeed, acquainted, like my learned friend, with your persons; but I know the uprightness of your minds; I know in general the upright character of an English jury; I know your powers of distinguishing between a civil action for the purpose of damages, and a criminal Do you remember whether Mr. Plunkett prosecution; I know, too, gentlemen, that ever delivered his opinions on the different you are capable of feeling the grand and leadsubjects agitated in debate?—I do not thinking distinction, that in an action for personal it proper to state whether or not he delivered his opinions→→→ I believe you were Speaker of the Irish House of Parliament previous to the Union? -I was. Do you remember Mr. Plunkett sitting as a member in that House?--I do. Lord Ellenborough.-You are only asked to stated whether or not he gave any opinion on the subjects in debate. Do you recollect whether he ever delivered his opinions on the different subjects agitated in debate?-He frequently took a part in the debates. Have you read the libel?—I have. Do you suppose Mr. Plunkett is the person intended in the libel? Lord Ellenborough.—Mr. Nolan, read what particular part you mean. "if any Mr. Nolan. Read the passage one man could be found," &c. p. 809. Taking the whole context of this passage, whom do you conceive to be meant by it?-Taking the whole, I should certainly conceive Mr. Plunkett to be meant by it. Taking the last sentence, I should not. The Right Hon. John Foster cross-examined by Mr. Adam. Mr. Plunkett was a member of the Irish House of Commons previous to the union?He was. Did he speak on questions relative to the union between Great Britain and Ireland? Yes; he did. Do you recollect any of the expressions or arguments he made use of in the course of those debates? damages, the defendant is capable of justifying "Be to her virtues ever kind, And clap the padlock on the mind." Gentlemem, I beg you will transpose these lines, and apply the two first to the defendant, Mr. Cobbett; "Be to his virtucs ever kind, And if I express myself in any way that can be construed into a justification of what has been written and published, I entreat that you will not clothe my client with that blame, and that you will not, from any want of art or ability on my part, visit him therefore with an increase of damages. be meant by an English jury, that any man should be subjected by the consequences of a civil action. My learned friend says, that this action was brought, in order to show the falsehood of the libel. Gentlemen, I have the best authority for saying, that the defendant never entertained the idea of justifying this libel. It was impossible for him to justify it. For, in or der to have satisfied your minds, we must have produced that testimony from which we are of parliament. The Bill of Rights expressly shut out by the established laws and usages says, that no words uttered in parliament shall be spoken any where but in parliament. When, therefore, you are considering that you are called upon to pronounce a verdict of da mages high in their nature, and, if you should pronounce it, completely ruinous to Mr. Cobbett, I humbly submit, gentlemen, that you will not throw out of that consideration the situation in which the defendant is thereby placed. There is another point which I think I have a right to complain of in my learned friend's address to you. He has spoken very Gentlemen, there were other topics in the highly of Mr. Cobbett as a public character, speech of my learned friend, of which I have and has made use of the evidence produced a right to complain, but he knows I am not on the former trial in favour of the defendant, in the habit of complaining; I will therefore in order to enhance the damages against him. give over my complaints, and come to the This I am sure you will not suffer to enter into other points upon which he has so eloquently your consideration.-I hope I shall be able to descanted. He has called your attention to convince you, that now, when the settled state the Whig club, to his grace the duke of Norof Ireland renders a repetition of those ani- folk, and to another great and illustrious chamadversions on the government, which have racter, Mr. Fox. Most undoubtedly, it is been so long suffered with impunity, unneces- true, that that illustrious character was struck sary, it would be an act of severity, if the de- by his majesty's command, out of the list of fendant, who is the last person who has fallen privy counsellors. But, gentlemen, this is not into the snare, should be visited with a vin- all. My learned friend has stated another cirdictive verdict. With respect to the amount cumstance. He has told you at the same time of damages (for some damages, I admit, you that the present chancellor of the exchequer, must give), I earnestly entreat you to consi- who counselled and advised his majesty so to der, that Mr. Cobbett is a man virtuous indo, has since advised him to call that illustriprivate life, that he is the father of a numerous character to the cabinet, and thereby to ous family and the husband of an amiable wife, and that he is not a person who maintains himself by ribaldry in his writings, for those writings are uniformly characterised by an honest zeal in defence of the aristocracy of this country, as well as the other component parts of its government. He left his father's house when he was hardly eighteen years of age; since which time he has been the successful champion, and almost sole defender of the rights of this country, in America. At the moment I am speaking, he is several years under the age of forty, and consequently cannot be supposed to have obtained that independence which would not make the heavy damages which my learned friend wishes to wring from you-but which I am sure he will not wring from you-worse than the severest sentence ever inflicted on any person convicted of the grossest libel. If you were to measure them in the proportion according to which my learned friend calls upon you to measure them, you would doom him to an eternal imprison ment; you would doom him to that situation to which it never was meant, and never will strike his name in again. If Mr. Fox had thought proper to bring an action against Mr. Cobbett, or any other person, for so saying, I should have said to him, you are not injured by what has been done, but are even thought a proper person to form part of his majesty's government. Mutato nomine, the case applies to the plaintiff in the present action. Were you to give one-fourth, nay one-twentieth part of the sum at which the plaintiff has thought proper to lay his damages, it would produce the effect upon my client which I have already stated. Gentlemen, this is a grave question. You have already pronounced a verdict which applies to the whole criminality of the case. Mr. Cobbett has been pronounced guilty, not only of the other parts of the publication, but of this very part also. And, if it be unfair to hold up a civil action to criminal punishment, I submit that it would be more especially so in the present case. I, therefore, have every reason to hope, on the part of the character of the defendant, on the part of the wife and children of the defendant, on the part of the forune of the defendant that you will be lenient towards him, and that you will not, by excessive damages, doom him to perpetual imprisonment. My learned friend has treated Mr. Cobbett as the author of this libel, which he represented to you as written with all the nerve and energy which characterizes that gentleman's publications. On the other hand, Mr. Attorney-general the other day, gave you to understand, that he had reasons for believing it was not written by Mr. Cobbett. Now, let us examine a little what the nature of this libel is; and, in what I am about to say, I shall state to you a plain unvarnished tale. I acknowledge the innuendoes to have been fully proved, and therefore what I have to discuss relates generally to the libel itself. It says, " from a rare modesty of nature, or from a rare precision of self-knowledge, lord Kenyon would have acted with reserve and circumspection, on his arrival in a country, with the moral quality of the inhabitants of which, and with their persons, manners, and individual characters and connexions, he must have been utterly unacquainted. In such a country, torn with domestic sedition and treason, threatened with foreign invasion, and acting, since the union, under an untried constitution"-Now let us stop here for a moment and recollect, that in this sentence there is nothing that can be construed into a libel upon the constitution of Ireland, but directly the reverse. It goes on to say, "if Doctor Addington had required that lord Kenyon should direct a Cambridgeshire earl in all his councils,' lord Kenyon would as soon, at the desire of lord St. Vincent, have undertaken to pilot a line of battle ship through the Needles." And then it comes to that part which is the ground work of the present action: "that viper! whom my father nourished! he it was from whose lips I first imbibed those principles and doctrines, which now by their effects drag me to my grave." Now, gentle. men, I entreat you to notice and consider the connexion which this passage has with the other parts of the libel, and, having done so, I am persuaded you will be of opinion with me, that it must have been used in a figurative manner. It then states, " Of lord Ken yon, therefore (Cambricus* must well know), it never could have been believed, that he himself would lead such a character forward, introduce him to the favour of a deceived sovereign, clothe him in the robes and load him with the emoluments of office. Lord Kenyon must have known, that a noble duke, for having toasted at a drunken club, in a common tavern, to a noisy rabble, "the sovereignty of the people," was struck by his majesty's command out of the privy council, and deprived of all his offices both civil and military. If, therefore, any man were to be found who not at a drunken club, or to a * See the note in p. 31. | brawling rabble, but in a grave and high assembly, not in the character of an inebriated toast-master, but in that of a sober constitutional lawyer, had insisted on the sovereignty of the people, as a first principle of the English law, and had declared, that by law an appeal lay from the decision of the tellers of the Houses of Parliament, to that of the "tellers of the nation; and that if a particular law were disagreeable to the people, however it might have been enacted with all royal and parliamentary solemnity, nevertheless it was not binding, and the people, by the general law, were exempted from obedience to such a particular law, because the people were the supreme and ultimate judges of what was for their own benefit. Lord Kenyon, if he had been chancellor in any kingdom of Europe, would have shrunk from recommending any such man to the favour of a monarch, while there yet remained a shadow of monarchy visible in the world." Now, gentlemen, this part of the question relates to a circumstance, the particulars of which, we have been prevented, by the established law of parliament, from diving into; nor do I wish to bring it forward in this place: but I have a right to state, that if any person should have printed, so far back as the year 1799, a speech importing to be a speech made by the plaintiff, Mr. Plunkett, and if it should appear that the passage I have just read to you is an exact copy of a passage in that speech, I submit, that this is a case extremely favourable to my client. My learned friend in the course of his speech has alluded to me. Let me also in my turn beg leave to allude to him. Suppose in a lecture room he had insisted on the sovereignty of the people as a first principle of the English law, and have declared, that by law an appeal lay from the decision of the tellers of the Houses of Parliament, to that of the tellers of the nation; what species of moral offence would it have been to have said that he was an improper person to become the law officer of the crown? Where would have been the moral crime in publishing that my learned friend had made use of those expressions? more; if it could be proved, that those expressions had been published and attributed to him in newspapers and in pamphlets from the year 1800 up to the present year 1804, and that he had never called upon any of those publishers for an explanation, what sort of damages, I ask, would you have given to my learned friend? Having said this, let me read to you the infamous libel attributed to Mr. Plunkett. It is stated in this book, pur. porting to be a collection of speeches on the union, that, in the Irish House of Commons, on the 22nd of June 1799, Mr. Plunkett made use of these words: "I, in the most express terms deny the competency of parliament to do this act," (meaning the act of legislative union between the two countries.) Ivtell· you, that if, circumstanced as you are, you: And pass this act, it will be a mere nullity, and that no man in Ireland will be bound to obey it I make the assertion deliberately, I repeat it, and I call on any man who hears me to take down my words Mr. Erskine.-I submit to your lordship that this sort of evidence is perfectly inadmissible. Lord Ellenborough.-Altogether so, and when I come to address the jury, I shall certainly take occasion to remind them that they must discharge it totally from their recollection. Mr. Adam.-I feel a considerable degree of embarrassment at this interruption. I did not interrupt my learned friend when he was impressing your minds with the idea that Mr. Cobbett was the author of this libel.Gentlemen, the point on which I was addressing you was this, that if such words have been attributed to Mr. Plunkett, I was submitting to you, that after five years of silent acquiescence on the part of Mr. Plunkett, after suffering the expressions here attributed to him to be sent to every corner of the kingdom in the form of newspapers and of pamphlets, it would be an extremely hard case to inflict severe damages upon Mr. Cobbett for the mere republication of them. Lord Ellenborough.-I have no objection to your stating this as matter of supposition, but, in the shape of evidence, it cannot possibly be admitted. Mr. Adam. My lord, I was just about to state, that I did not mean to proceed farther into the detail of this subject. Gentlemen, I wish you to consider in what state this cause stands, and what the circumstances are which entitle my learned friend to demand such excessive damages. I have stated to you the situation of Mr. Cobbett and that of his family, and I trust I have done it with decorum. With regard to the plaintiff, Mr. Plunkett, you have it in evidence, that he was his majesty's solicitor-general in Ireland at the time of the publication, and you also have it in evidence, that he is still in the confidence of the Irish government; but you have no evidence, that any step whatever has been taken to remove him from the situation which he enjoys. Has he received any injury by the publication? Is he not still his majesty's solicitor-general? Is he not still in the high career, to honours and emoluments? I ask then, as my learned friend has not produced one single circumstance to prove to you that Mr. Plunkett has been injured by the publication in question, I ask, I say, whether, under all these circumstances, this is a case which calls for those excessive damages which my learned friend has entreated you to give? Gentlemen, you have already passed a verdict of guilty upon the information for public criminality: you are now considering an action for private damages. Mr. Plunkett has received redress as to the former, and if you should find, as I suppose you will find, the defendant guilty (as no justification whatever has been attempted), he will have a farther opportunity of showing to the world, that Mr. Cobbett never attempted to justify the truth of it, that he did not wait to consult counsel, but took his immediate determination to enter no justification upon the record. Gentlemen, I submit that, under these circumstances, you must quit the box before you pronounce a verdict of damages. Let those damages be ever so low, that verdict will be sufficient to establish, that Mr. Plunkett has completely vindicated his character, and will show to the world, that what was alleged against him was untrue. I am persuaded that the plaintiff does not come here to take out of the pocket of Mr. Cobbett a sum, which would not enrich him, but make Mr. Cobbett poor indeed. Gentlemen, I shall not trouble you with any farther observations, but shall conclude with expressing my firm reliance, that you will not inflict a punishment beyond what the justice of the case requires. SUMMING UP. Lord Ellenborough.-Gentlemen; This is an action for reparation in damages for a civil injury done to Mr. Plunkett, the solicitor general of Ireland, by the publication of a libel, with the contents of which you have been made fully acquainted. The defendant's counsel has admitted, that the preliminary proof has been adduced, and no justification appears on the record. The only question, therefore, for your consideration is, the quality of the libel, and the measure of damages you will give in the exercise of your sound discretion. You will lay out of your consideration the antecedent matter of the criminal trial, on which the defendant has been convicted. This is an action for the injury done to the fair fame of an individual, and to ascertain the damages to which he is entitled. That which gave the public a title to reparation, ought not, however to operate to the abridg ment of the right of a particular individual who complains of a private injury. It will be for you to consider carefully the circumstances of the case and the malignity of the libel, and to say, what reparation in damages the plaintiff ought to receive. These damages are not to be reduced by the poverty of the defendant, if he is poor, nor increased by his wealth, if he is rich; but are to be admea sured by the size and magnitude of the injury done to the plaintiff. The only way of measuring the extent of the injury done to a man's fame is, by asking yourselves, what would make your mind and feelings an adequate compensation if such a libel as this were true? That it is not true is ad mitted. If it were true, it would have beens open to the defendant to have justified it on the record. If a man thinks proper to assert As to this see 2 Selwyn's Nisi Prius, p. 986, note, 4th edition. that which it is difficult to prove, or represented with a speech to evidence the dying son of that which cannot be revealed, they are diffi- his former friend, when that dying son had culties of his own creating, and the libel must produced no evidence, had made no defence; go forth accredited or discredited, according to but, on the contrary, had acknowledged the the circumstances. But, gentlemen, as to the charge, and had submitted to his fate.first part of the libel, I take the principal gra- Lord Kenyon would have turned with horror vamen of the injury to lie in that passage from such a scene, in which, although guilt which commences with the words, "that vi- was in one part to be punished, yet, in the per whom my father nourished!" To this whole drama, justice was confounded, humanpassage I am desirous of drawing your parti- ity outraged, and loyalty insulted." Gentlecular attention; and really, it seems hardly men, this is the part which particularly prespossible to depict a person in more odious co- ses on my mind. As to the language which lours than are here employed. I would ask, the plaintiff may be supposed to have held in what could give more pain to a virtuous mind the Irish House of Parliament, it might, if than to insinuate that he had acted like our true, render him unfit for recommendation common enemy, "the seducer 'ere the accuser to his majesty-it might be improper. This, of mankind?" that he had first seduced and after- however, the defendant has not attempted to wards destroyed whom he had first corrupted? justify. But it is the other part of the libel, that he bad instilled into the mind of Mr. Em- containing the most bitter and acrimonious met, the son of his friend, principles of disloy- observations that can possibly be made use of, alty and rebellion, and had afterwards, not in to which I wish to confine your attention.the ordinary exercise of his duty, but "with a Consider what situation Mr. Plunkett is in. speech to evidence" wantonly lashed the man He holds an office at all times and in all counto whom he was under family obligations, tries of an invidious nature; that of a public and who was the pupil of his own sedition? prosecutor, whose denunciations may probably It appears to me hardly possible to depict any terminate in the death of the criminal. The one under more odious colours. It matters libel states, "that such a scene was acted as not whether the defendant be the author or lord Kenyon would have turned away from with only the publisher and adopter of another horror; a scene, in which, although guilt was man's malignity. If he choses to send it into in one part to be punished, yet, in the whole the world, he is criminal and guilty, and is li- drama, justice was confounded, humanity outable to all the consequences. Leaving the raged and loyalty insulted. To say of a pubother parts of the libel out of the question, I lic officer of the crown, that he has acted in shall shortly call your attention to that part such a scene, is to imply that he is forgetful which relates to the plaintiff. It says, "if any of every principle of justice, and is placing him one man could be found of whom a young but in the lowest possible state of degradation. unhappy victim of the justly offended laws of These, gentlemen, are the circumstances of his country had, in the moment of his convic- this case. It is for you to say, without consition and sentence, uttered the following apos- dering the capacity of the defendant as to his trophe "That viper whom my father nou- wealth or poverty, what reparation the plaintiff rished!"-Is it possible to state any thing is entitled to receive from the justice of his more detestable, than that a person, who had country. Whatever you may determine upon, been nourished by the father of a man who I have no doubt the amount will be such as had rendered himself amenable to the inflic- ought to satisfy the party aggrieved; and, tion of the law, should insult and sting the son with these few observations, I leave the decito death? "He it was from whose lips I first sion in the hands of those to whom, by the imbibed those principles and doctrines, which consitution, it is solely referred. now by their effects drag me to my grave; and he it is who is now brought forward as my prosecutor, and who, by an unheard of exercise of the prerogative, bas wantonly lash The Jury retired for about twenty minutes, and returned with a verdict for the plaintiff Damages 5007. |