are founded upon legal reasoning; for that very libel, over which it seems you are not to entertain any jurisdiction, is always read, and often delivered to you out of court for your consideration.

The administration of criminal justice in the hands of the people is the basis of all freedom. While that remains, there can be no tyranny, because the people will not execute tyrannical laws on themselves. Whenever it is lost, liberty must fall along with it, because the sword of justice falls into the hands of men who, however independent, have no common interest with the mass of the people. Our whole history is therefore chequered with the struggles of our ancestors to maintain this important privilege, which in cases of libel has been too often a shameful and disgraceful subject of controversy.

The ancient government of this country not being founded, like the modern, upon public consent and opinion, but supported by ancient superstitions, and the lash of power, saw the seeds of its destruction in a free press. Printing, therefore, upon the revival of letters, when the lights of philosophy led to the detection of prescriptive usurpations, was considered as a matter of state, and subjected to the control of licensers appointed by the Crown; and although our ancestors had stipulated by Magna Charta that no freeman should be judged but by his peers, the courts of StarChamber and High Commission, consisting of privy counsellors erected during pleasure, opposed themselves to that freedom of conscience and civil opinion which even then were laying the foundations of the Revolution. Whoever wrote on the principles of government was pilloried in the Star-Chamber; and whoever exposed the errors of a false religion was persecuted in the Commission Court. But no power can supersede the privileges of men in society, when once the lights of learning and science have arisen amongst them. The prerogatives which former princes exercised with safety, and even with popularity, were not to be tolerated in the days of the First Charles; and our ancestors insisted that these arbitrary tribunals should be abolished. Why did they insist upon their abolition? Was it that the question of libel, which was their principal jurisdiction, should be determined only by the judges at Westminster? In the present times, even such a reform, though very defective, might be consistent with reason, because the judges are now honourable, independent, and sagacious men; but in those days, they were often wretches-libels upon all judicature; and instead of admiring the wisdom of our ancestors, if that had been their policy, I should have held them up as lunatics, to the scoff of posterity; since, in the times when these unconstitutional tribunals were supplanted, the courts of Westminster Hall were filled with men who were equally the tools of power with those in the Star-Chamber; and the whole policy of the change consisted in that principle which was then never disputed, viz., that the judges

at Westminster, in criminal cases, were but a part of the Court, and could only administer justice through the medium of a jury.

When the people, by the aid of an upright Parliament, had thus succeeded in reviving the constitutional trial by the country, the next course taken by the Ministers of the Crown was to pollute what they could not destroy. Sheriffs devoted to power were appointed, and corrupt juries packed to sacrifice the rights of their fellow-citizens under the mask of a popular trial. This was practised by Charles II., and was made one of the charges against King James, for which he was expelled the kingdom.

When juries could not be found to their minds, judges were daring enough to browbeat the jurors, and to dictate to them what they called the law; and in Charles II.'s time, an attempt was made which, if it had proved successful, would have been decisive. In the year 1670, Penn and Mead, two Quakers, being indicted for seditiously preaching to a multitude tumultuously assembled in Gracechurch Street, were tried before the Recorder of London, who told the jury that they had nothing to do but to find whether the defendants had preached or not; for that, whether the matter or the intention of their preaching were seditious, were questions of law, and not of fact, which they were to keep to at their peril. The jury, after some debate, found Penn guilty of speaking to people in Gracechurch Street; and on the Recorder's telling them that they meant, no doubt, that he was speaking to a tumult of people there, he was informed by the foreman that they allowed of no such words in their finding, but adhered to their former verdict. The Recorder refused to receive it, and desired them to withdraw, on which they again retired, and brought in a general verdict of acquittal, which the Court, considering as a contempt, set a fine of forty marks upon each of them, and condemned them to lie in prison till it was paid. Edward Bushel, one of the jurors (to whom we are almost as much indebted as to Mr Hampden, who brought the case of ship-money before the Court of Exchequer), refused to pay his fine, and being imprisoned in consequence of the refusal, sued out his writ of Habeas Corpus, which, with the cause of his commitment, viz., his refusing to find according to the direction of the Court in matter of law, was returned by the Sheriffs of London to the Court of Common Pleas, when Lord Chief-Justice Vaughan, to his immortal honour, delivered his opinion as follows:-"We must take off this veil and colour of words which make a show of being something, but are in fact nothing. If the meaning of these words, finding against the direction of the Court in matter of law, be that if the Judge, having heard the evidence given in court (for he knows no other), shall tell the jury upon this evidence that the law is for the Crown, and they, under the pain of fine and imprisonment, are to find accordingly, every man sees that the jury is but a troublesome delay, great charge, and of no use in deter

mining right and wrong; and therefore the trials by them may be better abolished than continued, which were a strange and newfound conclusion, after a trial so celebrated for many hundreds of years in this country."

He then applied this sound doctrine with double force to criminal cases, and discharged the upright juror from his illegal commit

ment.

This determination of the right of juries to find a general verdict was never afterwards questioned by succeeding judges; not even in the great case of the seven bishops, on which the dispensing power and the personal fate of King James himself in a great measure depended.

These conscientious prelates were, you know, imprisoned in the Tower, and prosecuted by information for having petitioned King James II. to be excused from reading in their churches the declaration of indulgence which he had published contrary to law. The trial was had at the bar of the Court of King's Bench, when the Attorney-General of that day, rather more peremptorily than my learned friend (who is much better qualified for that office, and whom I should be glad to see in it), told the jury that they had nothing to do but with the bare fact of publication, and said he should therefore make no answer to the arguments of the bishops' counsel, as to whether the petition was or was not a libel. But Chief-Justice Wright (no friend to the liberty of the subject, and with whom I should be as much ashamed to compare my Lord, as Mr Bearcroft to that Attorney-General) interrupted him, and said, Yes, Mr Attorney, I will tell you what they offer, which it will lie upon you to answer: they would have you show the jury how this petition has disturbed the Government, or diminished the King's authority." So say I. I would have Mr Bearcroft show you, gentlemen, how this dialogue has disturbed the King's Government, excited disloyalty and disaffection to his person, and stirred up disorders within these kingdoms.

In the case of the bishops, Mr Justice Powell followed the ChiefJustice, saying to the jury, "I have given my opinion; but the whole matter is before you, gentlemen, and you will judge of it." Nor was it withdrawn from their judgment; for although the majority of the Court were of opinion that it was a libel, and had so publicly declared themselves from the bench, yet, by the unanimous decision of all the judges, after the Court's own opinion had been pronounced by way of charge to the jury, the petition itself, which contained no innuendoes to be filled up as facts, was delivered into their hands, to be carried out of court, for their deliberation. The jury accordingly withdrew from the bar, carrying the libel with them, and (puzzled, I suppose, by the infamous opinion of the judges) were most of the night in deliberation; all London surrounding the Court with anxious expectation for that verdict

VOL. I.

I

which was to decide whether Englishmen were to be freemen or slaves. Gentlemen, the decision was in favour of freedom, for the reverend fathers were acquitted; and though acquitted in direct opposition to the judgment of the Court, yet it never occurred even to those arbitrary judges, who presided in it, to cast upon them a censure or a frown. This memorable and never to be forgotten trial is a striking monument of the importance of these rights, which no juror should ever surrender; for if the legality of the petition had been referred as a question of law to the Court of King's Bench, the bishops would have been sent back to the Tower, the dispensing power would have acquired new strength, and perhaps the glorious era of the Revolution, and our present happy constitution, might have been lost.

Gentlemen, I ought not to leave the subject of these doctrines which, in the libels of a few years past, were imputed to the noble Earl of whom I formerly spoke, without acknowledging that Lord Mansfield was neither the original composer of them, nor the copier of them from these impure sources. It is my duty to say that Lord Chief-Justice Lee, in the case of the King against Owen, had recently laid down the same opinions before him. But then both of these great judges always conducted themselves on trials of this sort, as the learned Judge will no doubt conduct himself to-day; they considered the jury as open to all the arguments of the defendant's counsel. And in the very case of Owen, who was acquitted against the direction of the Court, the present Lord Camden addressed the jury, not as I am addressing you, but with all the eloquence for which he is so justly celebrated. The practice, therefore, of these great judges is a sufficient answer to their opinions; for if it be the law of England that the jury may not decide on the question of libel, the same law ought to extend its authority to prevent their being told by counsel that they may.

There is indeed no end of the absurdities which such a doctrine involves; for suppose that this prosecutor, instead of indicting my reverend friend for publishing this dialogue, had indicted him for publishing the Bible, beginning at the first book of Genesis, and ending at the end of the Revelations, without the addition or subtraction of a letter, and without an innuendo to point out a libellous application, only putting in at the beginning of the indictment that he published it with a blasphemous intention. On the trial for such a publication, Mr Bearcroft would gravely say, "Gentlemen of the Jury, you must certainly find by your verdict that the defendant is guilty of this indictment, i.e., guilty of publishing the Bible with the intentions charged by it. To be sure, everybody will laugh when he hears it, and the conviction can do the defendant no possible harm; for the Court of King's Bench will determine that it is not a libel, and he will be discharged from the consequences of the verdict." Gentlemen, I defy the most ingenious

man living to make a distinction between that case and the present; and in this way you are desired to sport with your oaths by pronouncing my reverend friend to be a criminal, without either determining yourselves, or having a determination, or even an insinuation from the Judge that any crime has been committed; following strictly that famous and respectable precedent of Rhadamanthus, judge of hell, who punishes first, and afterwards institutes an inquiry into the guilt.

But it seems your verdict would be no punishment, if judgment on it was afterwards arrested. I am sure, if I had thought the Dean so lost to sensibility as to feel it no punishment, he must have found another counsel to defend him. But I know his nature better. Conscious as he is of his own purity, he would leave the court hanging down his head in sorrow, if he were held out by your verdict a seditious subject, and a disturber of the peace of his country. The arrest of judgment which would follow in the term upon his appearance in court as a convicted criminal, would be a cruel insult upon his innocence, rather than a triumph over the unjust prosecutors of his pretended guilt.

Let me, therefore, conclude with reminding you, gentlemen, that if you find the defendant guilty, not believing the thing published to be a libel, or the intention of the publisher seditious, your verdict and your opininions will be at variance; and it will then be between God and your own consciences to reconcile the contradiction.

SUBJECT of the Trial of the Dean of St Asaph.

To enable the reader to understand thoroughly the further proceedings in this memorable cause, and more particularly to assist him in appreciating the vast value and importance of the Libel Bill, which it gave rise to, it becomes necessary to insert at full length Mr Justice Buller's Charge to the Jury, and what passed in court before the verdict was recorded; by which it will appear that the rights of juries, as often established by Act of Parliament, had been completely abandoned by all the profession, except by Mr Erskine. The doctrine insisted and acted upon was, that the jury were confined to the mere act of publishing, and were bound by their oaths to convict of a libel, whatever might be the matter written or published ;-a course of proceeding which placed the British press entirely in the hands of fixed magistrates, appointed by the Crown. This doctrine, we say, was so completely fastened upon the public, that the reader will find in the fifth volume of Sir James Burrow's Reports upon the trial of Woodfall for publishing the Letters of Junius, alluded to by Mr Justice Buller in his Charge to the Jury at Shrewsbury, that an objection to that rule of law, as