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APPENDIX.

Proceedings in the HOUSE of COMMONS, on Wednesday, the 27th of March, 1822, on the Petition of JOHN BARKLEY.

Dr. Lushington begged to call the attention of the house to a petition which he held in his hand. That petition proceeded from a person in humble circumstances, who was now suffering under the sentence of the law, to which he complained that he had been unjustly subjected. He complained, also, that the Jury which tried him was not fair and unprejudiced, because it had, in deciding another trial on the same work only two days before, passed an opinion upon the principle of the matter which formed the subject of the indictment against him. Nothing was of more importance to the security and the liberty of the subject than that the Trial by Jury, his great protection, should be preserved in all its pristine purity, and that all those barriers which the wisdom and the virtue of our ancestors had raised for the preservation of the Trial by Jury should be held sacred and inviolate. That principle should never be lost sight of in any case, but particularly where the party might happen to stand accused of a crime of a deep die, because the human mind was disposed to be prepossessed against individuals accused of such offences. The name of the petitioner was John Barkley, and he was seventeen years of age. He was one of those individuals who had fallen victims to the proceedings of that society which had usurped the name of "constitutional." That society had not only brought the petitioner to trial, but had harassed him in the first instance, and had made him undergo a preliminary imprisonment. On the 4th of March last, the petitioner's trial came on before the Common Sergeant and a London Jury. Before the trial commenced, his counsel objected to the Jury on this groundand he particularly called the attention of the house to it, because, unless the house could afford some remedy, none could be obtained for the injustice which in his opinion the petitioner had suffered—that they were not competent to give a fair verdict, because only two days before they had tried and convicted a man of the name of Vamplew for publishing the identical libel for selling which the petitioner was indicted. The Common Sergeant was of opinion that the objection was not well founded. He (Dr. Lushington) contended that the objection was well founded, and he asserted without fear of contradiction, that to compel a person to be tried by a Jury which had already prejudged his case, was a violation of the first principles of justice, and opposed to the practice as well as the spirit of the law. It was laid down by Lord Coke, that no person was qualified to sit upon a Jury if he had already been party to a verdict in a cause where the same question had been tried, although between other parties. Now, had not the same question, in fact, been decided between other parties in the present case? All that John Barkley's Jury could try was, whether he had or had not published the libel; for that the work in question was a libel they had already declared by a previous verdict. He did repeat, that such practice was at variance with the very first principles of justice; for it was impossible to suppose that any person who had formerly given an opinion upon the merits of a particular publication could come to a second consideration of the merits of that publication with a perfectly pure and unbiassed feeling: therefore it was that Coke laid down the exclusion of such men from Juries as a principle, and declared the existence of the fact to be a sufficient ground of challenge. What, he would ask, did the practice lead to,

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or rather what did it not lead to, adopted in the present case? Surely every man must bear in mind the libel bill passed after so much exertion by Mr. Fox -that bill by which Juries recovered the rights and privileges which Judges had usurped from them-the privilege of deciding for themselves not only as to the fact of publication, but also as to the question of libel or no libel. He (Dr. Lushington) declared that he knew of no greater blessing conferred upon England than Mr. Fox's Libel Bill; yet in the present instance the defendant had been denied the benefit of that bill; for the Jury who tried him had decided before they went into the box as to the question of libel, and had only left to try the fact of publication. This, however, was not the only evil arising from the extraordinary practice of which he complained, as sanctioned by the Common Sergeant of London. He was now about to speak to facts stated by the petition which he held in his hand, but which he also knew to be true-facts which he had from the foreman of Barkley's Jury (who complained heavily of the situation in which he had been placed)—and which were verified to him (Dr. Lushington) by the testimony of persons of great respectability who were present in Court. The counsel for the prosecution having secured the Jury, said, "I refer you to the speech which I made here three days since; that speech contained arguments which I am sure must satisfy you, which in fact did satisfy you, that the book in question is a libel, and there is no occasion therefore that I should further occupy your time upon that head." And how was the counsel for the prisoner, who had not been present at the former speech-how was he to reply to arguments which he had not heard? This was one part of his (Dr. Lushington's) objection to the course of proceeding; but there were still greater evils attending upon it of which he had to complain. The Com› mon Sergeant himself—and here he did say that he was bound to complain of the conduct of that Judge; he complained that the conduct of the Judge had not been upright, just, or impartial: he was forced thus to express himself, because against such misconduct to what tribunal could a man appeal if not to a British House of Commons? The Common Sergeant having decided that the Jury was a competent Jury, declared to them, from the Bench of Justice, that he could not understand how a Jury could form an opinion different from and inconsistent with their former verdict; so that the Judge, instead of labouring to remove the prejudice of the Jury, instead of attempting to remove the bias which the former trial must have given to their minds, actually put them in mind of the fact of their former verdict-he recalled to their recollection the situation in which they stood, and urged them to return a verdict of Guilty in the case of the Petitioner, because they had returned a similar verdict in the case of Vamplew. (Hear, hear.) He (the honourable member) did complain heavily of this conduct, and he appealed to his honourable and learned friends opposite, whether they ought not in candour to come forward and admit the irregularity and impropriety of the trial. They ought not, because the individual offending (whose conduct he did not justify) was a poor unfriended being,-they ought not, therefore, to sanction a violation of that most sacred right-the right of Trial by Jury. He would ask either of those honourable and learned gentlemen opposite to put a case to themselves. Supposing that they had to conduct a prosecution for libel against two or more individuals: if a Jury acquitted the first by negativing the fact of libel, would they go on with the same jury to the trial of the others? Could they do it with common regard to their professional characters? On the other hand, if the first of those individuals was found guilty, would his honourable and learned friends press the trial of the remaining prisoners before the same Jury? He was sure they would not-he was sure that a regard for the principles of justice, and common respect for their own character, would prevent them from pursuing a course so inconsistent with the elements of common justice. In the present case a boy, not more than seventeen years of age, fell under the fangs of the Constitutional Society. He was unable, although he had applied to the clerk of the arraigns, to procure a list of the Jury. The course taken by the prisoner or his counsel was a course which

he (Dr. Lushington) understood to be generally admitted upon trials for misdemeanour. He believed that it was not usual in such cases to insist upon all the strict formalities of challenge; the mere statement that there was ground of objection to any of the Jury on the score of undue prejudice was always held sufficient. The usual application was made in Barkley's case; but although it was accustomed to succeed in other cases, it failed in his. And let the house look at the situation in which the Jury as well as the prisoner were placed, by the improper course persisted in. In Barkley's case, they took forty-five minutes to deliberate before they found their verdict of Guilty: in the former cases they had returned the same verdict without any deliberation at all. The very circumstance of this hesitation proved that they were in doubt; probably but for the sake of consistency, their verdict might have been the other way. As it was, the verdict was accompanied with a recommendation to mercy, and a sentence of six months' imprisonment only was passed upon the defendant. The honourable and learned member then proceeded to advert to the sentences passed upon the two other individuals tried for the same offence as Barkley. He understood that, to the already heavy sentence of imprisonment for two years-then to find sureties for good behaviour during life-the further inflic tion of hard labour had, on their entering the Compter, been added, Courts of justice certainly had the power of ordering that aggravation of punishment; but was it to be endured that for the mere publication of opinions of opinions upon subjects as to which almost all men differed-as to which, were it possible to dive into the hearts of gentlemen present, scarcely three of those gentlemen would be found upon all points to agree-was it fair, that for publishing his opinions upon such subjects, a man should be compelled, in addition to imprisonment, to labour for two years at an unwholesome employment? He had heard that there was, in truth, no occasion for the particular order for hard labour, inasmuch as that, when a man went to the Compter, hard labour followed of course. In this instance, however, a necessity had been felt for expressing it in the sentence; for a proceeding took place as singular as the other parts of this transaction. On the sentences against Vamplew and Barkley, nothing was said of hard labour, but in the case of the third defendant it was expressly made part of the punishment. Thus stood the facts on the minutes of the proceedings taken for the City of London, and thus they appeared to have originally stood on the book of the clerk of the arraigns; but in the latter there now appeared interlined in a different hand-writing the clause giving this further punishment. This was surely a most extraordinary proceeding. Dr. Lushington went on to comment upon the mischievousness and inutility of prosecutions like those to which he had been alluding. When the house saw a man like Mr. Hone raised (merely by prosecution) from an obscure individual to a man known în every corner of England, Scotland, and Wales, could they do otherwise than lament to see any body of men so absurd and so wicked as to erect themselves into a society for the assumption of powers-of powers which demanded the nicest discretion in their exercise, and which the policy of the law had vested in the Crown? He begged pardon for troubling the house at so great length upon the petition in his hand; he did so from a feeling, that with the fate of the petitioner was embarked the fate of one of the most sacred privileges of an Englishman. Again, he said that the practice he was appealing against went to the nullification of trial by jury. When he recollected the many attempts lately made to curb the effect of that invaluable right-when he saw men protected (where the military had been called on against the people) from the verdicts of juries-when he heard a publication avowed by those in power which stated that juries of England were not to be trusted- when he heard it declared in a British House of Commons, that the maintenance of a military force was absolutely necessary to the existence of civil liberty-when he saw innovation after innovation upon the constitution-when he looked at the six acts, and found such means and such pains taken in every direction to bring trial by jury into inefficiency and disrepute, he did most deeply feel that it was the duty of

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the house to stand steadfastly up for the preservation of that practice which se cured free, open, and impartial trial to every individual to every subject of the country. The honourable member sat down by moving that the petition should be read.

"To the Honourable the Commons of the United Kingdom of Great Britain and Ireland, in Parliament assembled. "The Petition of John Barkley, late of London, printer, but now a prisoner in Giltspur-street Compter,

"Showeth,―That your petitioner, having been arrested in December last, at the instance of a number of persons calling themselves the "Constitutional Association," an indictment for libel was found against him; that being very poor, and unable to procure bail, he remained in confinement in Newgate until the 4th of March last, when your petitioner was tried at the Old Bailey; that two days previous thereto, one William Vamplew had been tried and found guilty of publishing the same supposed libel with the publication of which your petitioner was charged.

"That your petitioner, being informed that the Constitutional Association consists of a great number of persons, was desirous of ascertaining the names of the Jury by whom he was to be tried, in order to discover whether any of them were subscribers to the said association; and to institute such other inquiries respecting them, as might enable him to be prepared with his challenges or objections at the trial; and that your petitioner for that purpose applied to the clerk of the arraigns for a list of such Jury, but the same was refused.

"That, having learned the names of the Jury by whom William Vamplew bad been tried, and finding that the Jury about to be sworn to try him were the same persons, your petitioner, by his counsel, objected to the said Jury; and submitted to the Common Sergeant, then sitting as Judge, that the Jury who were then about to be sworn were not, for the reason aforesaid, a fair or proper Jury to try the case of your petitioner; and therefore requested the Court to give the necessary directions for calling another Jury who might not be liable to the objection.

"That the Common Sergeant peremptorily refused to grant such request, stating that there was no cause of challenge shown; that the Jury on the former occasion had found their verdict under the direction of the Court; and that as no Jury could possibly find a different verdict upon so infamous a libel,' the same Jury were fully competent to try the case of your petitioner.

"That the Jury were then sworn, and that the counsel for the prosecutors, in addressing the Jury, referred them to what he had stated in the address to them on the trial of William Vamplew, and said that as the cases were precisely ́similar, it would be unnecessary for him to make many observations to them.' "That the counsel for the prosecution had, in his address in the case of William Vamplew, warmly and at great length praised the conduct of the Constitutional Association, who he stated were the prosecutors; and that one of the witnesses for the prosecution in the case of your petitioner swore that he was employed by Mr, Sharpe and Mr. Murray (who he had heard and believed were secretaries to the Constitutional Association) to purchase the supposed libel of your petitioner; that your petitioner's counsel, in his address to the Jury in defence of your petitioner, was about to make some observations to the Jury on the conduct of the Constitutional Association and their agents in your petitioner's case, when the Common Sergeant endeavoured to prevent him from so doing, saying,' that there was no evidence that the Constitutional Association were the prosecutors; that, whoever they were, their conduct had nothing to do with your petitioner's case, and that he would not suffer any observations to be made on one side or the other,' although he had previously allowed the counsel for the prosecutors, as above stated, to make an eulogium at great length on the conduct of the said Constitutional Association.

"That the Common Sergeant, in his charge to the Jury, desired them to dis

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miss from their minds the circumstances of the former case, and to confine their judgement entirely to the case of your petitioner; but soon afterwards told them, that if they were satisfied with the evidence of the publication of the supposed libel by your petitioner, he could not see how they could, consistently with their former verdict, form a different judgement in the case of your petitioner from that which they had formed in the case of the said William Vamplew.

"That the Jury, after deliberating nearly an hour, delivered a verdict of Guilty, but recommended your petitioner to the mercy of the Court; and that your petitioner was sentenced to six months' imprisonment, and ordered at the end of that time to enter into recognizance for his good behaviour.

"Now, your petitioner himself submits to your honourable house, that it is repugnant to the spirit of the law of England, that the lives, liberties, and property of the subjects of this realm should be endangered by the possibility of their being exposed to the decision of a prejudiced and partial Jury. That it is a principle in the administration of justice in this country, that a' juror must stand indifferent as he stands uns worn; that it is said by Lord Chief Justice Coke, that if a juror hath given a former verdict upon the same title or matter (though between other persons), it is a good cause of challenge.'

"That the duty of a Jury in cases of libel is to decide upon the whole matter put in issue upon the indictment, and that they are to judge of the nature and character of the supposed libel, as well as of the fact of publication.

"That your petitioner, therefore, submits that the Jury by whom your petitioner was tried, having previously expressed an opinion upon their oath on the nature and character of the supposed libel, charged to have been published by your petitioner (which was, in fact, the whole matter to be tried in the case of your petitioner, as your petitioner did not dispute the fact of publication,) were not an indifferent or impartial Jury, by whom your petitioner by law ought to have been tried.

"That your petitioner is aware that, according to strict legal form, your petitioner should have enforced his objection to the Jury at the trial, by way of challenge; but, besides that your petitioner from his inability previously to procure a list of the Jury was not and could not be prepared to put in and prove his challenges, and that such a proceeding would have been attended with considerable expense, which your petitioner was totally unable to bear, your petitioner is advised that challenges in cases of misdemeanour are now rarely resorted to, and that their necessity has been superseded by a more liberal as well as more convenient practice—namely, that wherever a fair and reasonable ob jection to a juryman is stated by either party, the Court, acting in its equitable discretion upon the principle that an unfair trial is no trial at all, and that a Jury ought to be superior to all exception, discharges the exceptionable juryman, and calls another who is not liable to objection.

"That your petitioner therefore humbly submits, that the objection to the Jury in your petitioner's case was fair, reasonable, and lawful; that there was cause of challenge shown; that the Jury who tried the former case were not fully competent to try the case of your petitioner; and that the language of the Common Sergeant, before the indictment was read, or the Jury sworn, in declaring, in the hearing of the Jury, that the supposed libel for the publication of which your petitioner was about to be tried was an infamous libel, and that no Jury could find a different verdict upon it from that which had been found in the case of William Vamplew,' must have produced an impression and prejudice on the minds of the Jury greatly injurious to your petitioner.

"That your petitioner's counsel, not having heard the address of the prosecutor's counsel in the case of William Vamplew, could not possibly answer or controvert any thing contained in it.

"That the said William Vamplew was not defended by counsel, and therefore it is highly probable that much was addressed to the Jury which influenced their judgement in his case, and which might have been obviated in the case of your petitioner, if his counsel had had any opportunity so to do.

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