Gentlemen, I come now to a point very material for your consideration; on which even my learned friend and I, who are brought here for the express purpose of disagreeing in everything, can avow no difference of opinion; on which judges of old and of modern times, and lawyers of all interests and parties, have ever agreed; namely, that even if this innocent paper were admitted to be a libel, the publication would not be criminal, if you, the jury, saw reason to believe that it was not published by the Dean with a criminal intention. It is true, that if a paper containing seditious and libellous matter be published, the publisher is prima facie guilty of sedition, the bad intention being a legal inference from the act of publishing: but it is equally true that he may rebut that inference, by showing that he published it innocently.

This was declared by Lord Mansfield, in the case of the King and Woodfall where his Lordship said, that the fact of publication would in that instance have constituted guilt, if the paper was a libel; because the defendant had given no evidence to the jury to repel the legal inference of guilt, as arising from the publication; but he said at the same time, in the words that I shall read to you, that such legal inference was to be repelled by proof.

"There may be cases where the fact of the publication even of a libel may be justified or excused as lawful or innocent; for no fact which is not criminal, even though the paper be a libel, can amount to a publication of which a defendant ought to be found guilty."

I read these words from Burrow's Reports, published under the eye of the Court, and they open to me a decisive defence of the Dean of St Asaph upon the present occasion, and give you an evident jurisdiction to acquit him, even if the law upon libels were as it is laid down to you by Mr Bearcroft: for if I show you that the publication arose from motives that were innocent, and not seditious, he is not a criminal publisher, even if the dialogue were a libel, and, according even to Lord Mansfield, ought not to be found guilty.

The Dean of St Asaph was one of a great many respectable gentlemen, who, impressed with the dangers impending over the public credit of the nation, exhausted by a long war, and oppressed with grievous taxes, formed themselves into a committee, according to the example of other counties, to petition the Legislature to observe great caution in the expenditure of the public money. This dialogue, written by Sir William Jones, a near relation of the Dean by marriage, was either sent or found its way to him in the course of public circulation. He knew the character of the author; he had no reason to suspect him of sedition or disaffection; and believed it to be, what I at this hour believe, and have represented it to you, a plain, easy manner of showing the people the great interest they had in petitioning Parliament for reforms beneficial

to the public. It was accordingly the opinion of the Flintshire committee, and not particularly of the Dean as an individual, that the dialogue should be translated into Welsh and published. It was accordingly delivered, at the desire of the committee, to a Mr Jones, for the purpose of translation. This gentleman, who will be called as a witness, told the Dean a few days afterwards that there were persons, not indeed from their real sentiments, but from spleen and opposition, who represented it as likely to do mischief, from ignorance and misconception, if translated and circulated in Wales.

Now, what would have been the language of the defendant upon this communication if his purpose had been that which is charged upon him by the indictment? He would have said, "If what you tell me is well founded, hasten the publication; I am sure I shall never raise discontent here by the dissemination of such a pamphlet in English: therefore let it be instantly translated, if the ignorant inhabitants of the mountains are likely to collect from it that it is time to take up arms."

But Mr Jones will tell you that, on the contrary, the instant he suggested that such an idea, absurd and unfounded as he felt it, had presented itself, from any motives, to the mind of any man, the Dean, impressed as he was with its innocence and its safety, instantly acquiesced; he recalled, even on his own authority, the intended publication by the committee; and it never was translated into the Welsh tongue at all.

Here the Dean's connexion with this dialogue would have ended, if Mr Fitzmaurice, who never lost any occasion of defaming and misrepresenting him, had not thought fit, near three months after the idea of translation was abandoned, to reprobate and condemn the Dean's conduct at the public meetings of the county in the severest terms for his former intention of circulating the dialogue in Welsh, declaring that its doctrines were seditious, treasonable, and repugnant to the principles of our government.

It was upon this occasion that the Dean, naturally anxious to redeem his character from the unjust aspersions of having intended to undermine the constitution of his country, conscious that the epithets applied to the dialogue were false and unfounded, and thinking that the production of it would be the most decisive refutation of the groundless calumny cast upon him, directed a few English copies of it to be published in vindication of his former opinions and intentions, prefixing an advertisement to it, which plainly marks the spirit in which he published it. For he there complains of the injurious misrepresentations I have adverted to, and impressed with the sincerest conviction of the innocence, or rather the merit of the dialogue, makes his appeal to the friends of the Revolution in his justification.

[Mr Erskine here read the advertisement to the jury, as prefixed to the dialogue.]

Now, gentlemen, if you shall believe upon the evidence of the witness to these facts, and of the advertisement prefixed to the publication itself (which is artfully kept back, and forms no part of the indictment), that the Dean, upon the authority of Sir William Jones, who wrote it, of the other great writers on the principles of our government, and of the history of the country itself, really thought the dialogue innocent and meritorious, and that his single purpose in publishing the English copies, after the Welsh edition had been abandoned, was the vindication of his character from the imputation of sedition, then he is not guilty upon this indictment, which charges the publication with a wicked intent to excite disaffection to the King, and rebellion against his government.

Actus non facit reum nisi mens sit rea is the great maxim of penal justice, and stands at the top of the criminal page in every volume of our humane and sensible laws. The hostile mind is the crime which it is your duty to decipher; a duty which I am sure you will discharge with the charity of Christians; refusing to adopt a harsh and cruel construction, when one that is fair and honourable is more reconcilable, not only with all probabilities, but with the evidence which you are sworn to make the foundation of your verdict. The prosecutor rests on the single fact of publication, without the advertisement, and without being able to cast an imputation upon the defendant's conduct, or even an observation to assign a motive to give verisimilitude to the charge.

Gentlemen, after the length of time which, very contrary to my inclination, I have detained you, I am sure you will be happy to hear that there is but one other point to which my duty obliges me to direct your attention. I should, perhaps, have said nothing more concerning the particular province of a jury upon this occasion than the little I touched upon it at the beginning, if my friend Mr Bearcroft had not compelled me to it by drawing a line around you, saying (I hope with the same effect that King Canute said to the sea), "Thus far shalt thou go." But since he has thought proper to coop you in, it is my business to let you out; and to give the greater weight to what I am about to say to you, I have no objection that everything which I may utter shall be considered as proceeding from my own private opinions; and that not only my professional character, but my more valuable reputation as a man, may stand or fall by the principles which I shall lay down for the regulation of your judgments.

This is certainly a bold thing to say, since what I am about to deliver may clash in some degree (though certainly it will not throughout) with the decision of a great and reverend Judge, who has administered the justice of this country for above half a

century with singular advantage to the public, and distinguished reputation to himself; but whose extraordinary faculties and general integrity, which I should be lost to all sensibility and justice if I did not acknowledge with reverence and affection, could not protect him from severe animadversion when he appeared as the supporter of those doctrines which I am about to controvert. I shall certainly never join in the calumny that followed them, because I believe he acted upon that, as upon all other occasions, with the strictest integrity an admission which it is my duty to make, which I render with great satisfaction, and which proves nothing more than that the greatest of men are fallible in their judgments, and warns us to judge from the essences of things, and not from the authority of names, however imposing. Gentlemen, the opinion I allude to is, that libel or not libel is a question of law for the Judge, your jurisdiction being confined to the fact of publication. And if this were all that was meant by the position (though I could never admit it to be consonant with reason or law), it would not affect me in the present instance, since all that it would amount to would be that the Judge, and not you, would deliver the only opinion which can be delivered from that quarter upon this subject. But what I am afraid of upon this occasion is, that neither of you are to give it; for so my friend has expressly put it. "My Lord," says he, "will probably not give you his opinion whether it be a libel or not, because, as he will tell you, it is a question open upon the record, and that if Mr Erskine thinks the publication innocent, he may move to arrest the judgment." Now this is the most artful and the most mortal stab that can be given to justice, and to my innocent client. All I wish for is, that the judgment of the Court should be a guide to yours in determining whether this pamphlet be or be not a libel; because, knowing the scope of the learned Judge's understanding and professional ability, I have a moral certainty that his opinion would be favourable. If therefore libel or no libel be a question of law, as is asserted by Mr Bearcroft, I call for his Lordship's judgment upon that question, according to the regular course of all trials where the law and the fact are blended; in all which cases the notorious office of the Judge is to instruct the consciences of the jury to draw a correct legal conclusion from the facts in evidence. before them. A jury are no more bound to return a special verdict in cases of libel than upon other trials, criminal and civil, where law is mixed with fact: they are to find generally upon both, receiving, as they constantly do in every court at Westminster, the opinion of the Judge both on the evidence and the law.

Say the contrary who will, I assert this to be the genuine unrepealed constitution of England; and therefore, if the learned Judge shall tell you that this pamphlet is in the abstract a libel,

though I shall not agree that you are therefore bound to find the defendant guilty unless you think so likewise, yet I admit his opinion ought to have very great weight with you, and that you should not rashly, nor without great consideration, go against it. But, if you are only to find the fact of publishing, which is not even disputed, and the Judge is to tell you that the matter of libel being on the record, he shall shut himself up in silence, and give no opinion at all as to the libellous and seditious tendency of the paper, and yet shall nevertheless expect you to affix the epithet of GUILTY to the publication of a thing the GUILT of which You are forbid, and HE refuses to examine, miserable indeed is the condition into which we are fallen! Since if you, following such directions, bring in a verdict of guilty, without finding the publication to be a libel, or the publisher seditious, and I afterwards, in mitigation of punishment, shall apply to that humanity and mercy which is never deaf when it can be addressed consistently with the law, I shall be told in the language I before put in the mouths of the judges, "You are estopped, sir, by the verdict; we cannot hear you say your client was mistaken but NOT GUILTY, for had that been the opinion of the jury, they had a jurisdiction to acquit him."

Such is the way in which the liberties of Englishmen are by this new doctrine to be shuffled about from jury to court, without having any solid foundation to rest on. I call this the effect of new doctrines, because I do not find them supported by that current of ancient precedents which constitutes English law. The history of seditious libels is perhaps one of the most interesting subjects which can agitate a court of justice; and my friend thought it prudent to touch but very slightly upon it.

We all know that by the immemorial usage of this country, no man in a criminal case could ever be compelled to plead a special plea; for although our ancestors settled an accurate boundary between law and fact, obliging the party defendant who could not deny the latter to show his justification to the Court; yet a man accused of a crime had always a right to throw himself by a general plea upon the justice of his peers; and on such general issue, his evidence to the jury might ever be as broad and general as if he had pleaded a special justification. The reason of this distinction is obvious. The rights of property depend upon various intricate rules, which require much learning to adjust, and much precision to give them stability; but CRIMES consist wholly in intention; and of that which passes in the breast of an Englishman as the motives of his actions, none but an English jury shall judge. It is therefore impossible, in most criminal cases, to separate law from fact; and, consequently, whether a writing be or be not a libel, never can be an abstract legal question for judges. And this position is proved by the immemorial practice of courts, the forms of which