A JUROR. We do not find it a libel, my Lord: we do not decide upon it.

Mr ERSKINE. They find it no libel.

Mr JUSTICE BULLER. You see what is attempted to be done?

Mr ERSKINE. There is nothing wrong attempted upon my part. I ask this once again, in the hearing of the jury, and I desire an answer from your Lordship as Judge, whether or no, when I come to move in arrest of judgment, and the Court enter up judgment, and say it is a libel, whether I can afterwards say, in mitigation of punishment, the defendant was not guilty of publishing it with a seditious intent, when he is found guilty of publishing it in manner and form as stated; and whether the jury are not thus made to find him guilty of sedition, when in the same moment they say they did not mean to do so. Gentlemen, do you find him guilty of sedition?

A JUROR. We do not, neither one nor the other.

Mr JUSTICE BULLER. Take the verdict.

ASSOCIATE. You say, Guilty of publishing; but whether a libel or not, you do not find?

A JUROR. That is not the verdict.

Mr JUSTICE BULLER. You say, Guilty of publishing; but whether a libel or not, you do not find,-is that your meaning?

A JUROR. That is our meaning.

ONE OF THE COUNSEL. Do you leave the intention to the Court? A JUROR. Certainly.

Mr COWPER. The intention arises out of the record.

Mr JUSTICE BULLER. And unless it is clear upon record, there can be no judgment upon it.

Mr BEARCROFT. You mean to leave the law where it is?
A JUROR. Certainly.

Mr JUSTICE BULLER. The first verdict was as clear as could be; they only wanted it to be confounded.

On the 8th of November, the second day of the ensuing term, Mr Erskine moved the Court of King's Bench to set aside the verdict, for the misdirection of the Judge in the foregoing charge to the jury, and obtained a rule to show cause why there should not be a new trial. There was no shorthand writer in court except a gentleman employed by the editors of the Morning Herald, from which paper of the succeeding day the following speech of Mr Erskine was taken.

MR ERSKINE'S SPEECH.

Delivered in the Court of King's Bench, on Monday the 8th of November 1784, on his Motion for a new trial in Defence of the DEAN of ST ASAPH.]

MR ERSKINE began by stating to the Court the substance of the indictment against the Dean of St Asaph, which charged the publication with an intention to incite the people to subvert the Government by armed rebellion,-the mere evidence of the publication of the dialogue which the prosecutor had relied on to establish that malicious intention,-and the manner in which the defendant had, by evidence of his real motives for publishing it, as contained in the advertisement, rebutted the truth of the epithets charged by the indictment.

He then stated the substance of his speech to the jury at Shrewsbury, maintaining the legality of the dialogue, the right of the jury to consider that legality, the injustice of a verdict affixing the epithet of guilty to a publication without first considering whether the thing published contained any guilt; and, above all, the right which the jury unquestionably had (even upon the authority of those very cases urged against his client) to take the evidence into consideration, by which the defendant sought to exculpate himself from the seditious intention charged by the indictment.

He said that the substance of Mr Jones's evidence was, that it had been the intention of the Flintshire committee to translate the dialogue into Welsh; that it was delivered to him to give to a Mr Lloyd for that purpose; that the Dean had just then received it from Sir William Jones, and had not had time to read it before he delivered it to the witness. Some days after, Mr Jones wrote to the Dean, telling him that he had collected the opinions of some gentlemen that the translation of it into Welsh might do harm. The Dean's answer (WHO HAD NEVER THEN READ THE THING HIMSELF) was this, "I am very much obliged to you for what you have communicated respecting the pamphlet; I should be exceeding sorry to publish anything that should tend to sedition." Mr Erskine contended that this was no admission on the Dean's part that he thought it seditious, for he had never read it; but that his conduct showed that he was not seditiously inclined, since he stopped the publication even in compliance with the affected scruples of men whom he found out, on reading it, to be both

wicked and ignorant; and the translation of it into Welsh was accordingly dropped.

Mr Jones had further said that many persons afterwards, and particularly Mr Fitzmaurice, made very free with the Dean's character for having entertained an idea of translating it into Welsh. It was publicly mentioned at the general meeting of the county, and many opprobrious epithets being fastened on the dialogue itself, the Dean said, "I am now called upon to show that it is not seditious, and I read it with a rope about my neck."

MR ERSKINE THEN SPOKE AS FOLLOWS VERBATIM.

MY LORD,-Although this is not the place for any commentary on the evidence, I cannot help remarking that this expression was strong proof that the Dean did not think it seditious; for it is absurd to suppose that a man, feeling hurt at the accusation of sedition, should say, I am now called upon to show I am not seditious, and then proceed to read that aloud which he felt and believed to contain sedition. The words which follow, "I read it with a rope about my neck," confirm this construction. The obvious sense of which is—I am now called upon to show that this dialogue is not seditious. It has never been read by those who call it so. I will read it in its own vindication, and in mine-" I read it with a rope about my neck,”—that is, if it be treasonable, as is asserted, it is a misdemeanour to read it; but I am so convinced of its innocence, that I read it notwithstanding-meo periculo.

The only part of Mr Jones's evidence which remains is as follows:-I asked him, "Did you collect from what the Dean said that his opinion was that the dialogue was constitutional and legal?" His answer was, "UNDOUBTEDLY. The Dean said, Now I have read this, I do not think it so bad a thing; and I think we ought to publish it, in vindication of the committee." The question and answer must be taken in fairness together. The witness was asked if he collected from the Dean that he thought it innocent and constitutional, and the first term in the answer is decisive; that the witness did not merely think it LESS criminal than it had been supposed, but perfectly constitutional; for he says, Undoubtedly I collected that he thought so." The Dean

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said he thought he ought to publish it in vindication of the committee, and it is repugnant to common sense to believe that if the Dean had supposed the dialogue in any degree criminal, he would have proposed to publish it himself, in vindication of a former intention of publication by the committee. It would have been a confirmation, not a refutation, of the charge.

The learned Judge, after reciting the evidence which I have just been stating (merely as a matter of form, since afterwards it was laid wholly out of the question), began by telling the jury that he

was astonished at a great deal he had heard from the defendant's counsel; for that he did not know any one question of law more thoroughly settled than the doctrine of libels, as he proposed to state it to them: it then became my turn to be astonished. Mr Justice Buller then proceeded to state, that what had fallen from me, namely, that the jury had a right to consider the libel, was only the language of a party in this country; but that the contrary of their notions was so well established, that no man who meant well could doubt concerning it.

It appeared afterwards that Mr Lee and myself were members of this party, though my friend was charged with having deserted his colours, as he was the first authority that was cited against me; and what rendered the authority more curious, the learned Judge mentioned that he had delivered his dictum at Guildhall as counsel for a plaintiff, when these doctrines might have been convenient for the interests of his client, and therefore no evidence of his opinion. This quotation, however, had perhaps more weight with the jury than all that followed, and certainly the novelty of it entitled it to attention.

I hope, however, the sentiments imputed to my friend were not necessary upon that occasion; if they were, his client was betrayed, for I was myself in the cause alluded to; and I take upon me to affirm that Mr Lee did not, directly or indirectly, utter any sentiment in the most remote degree resembling that which the learned Judge was pleased to impute to him for the support of his charge. This I shall continue to affirm, notwithstanding the Judge's declaration to the contrary, until I am contradicted by Mr Lee himself, who is here to answer me if I misrepresent him. [Mr Lee confirmed Mr Erskine by remaining silent.]

The learned Judge then said that, as to whether the dialogue, which was the subject of the prosecution, was criminal or innocent, he should not even hint an opinion; for that if he should declare it to be no libel, and the jury, adopting that opinion, should acquit the defendant, he should thereby deprive the prosecutor of his right of appeal upon the record, which was one of the dearest birthrights of the subject. That the law was equal as between the prosecutor and defendant, and that there was no difference between criminal and civil cases. I am desirous not to interrupt the state of the trial by observations, but cannot help remarking that justice to the prosecutor as standing exactly in equal scales with a prisoner, and in the light of an adverse party in a civil suit, was the first reason given by the learned Judge why the jury should at all events find the defendant guilty, without investigating his guilt. This was telling the jury, in the plainest terms, that they could not find a general verdict in favour of the defendant without an act of injustice to the prosecutor, who would be shut out by it from his writ of error, which he was entitled to by law, and which was the best

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birthright of the subject. It was, therefore, an absolute denial of the right of the jury, and of the Judge also, as no right can exist which necessarily works a wrong in the exercise of it. If the prosecutor had by law a right to have the question on the record, the Judge and jury were both tied up at the trial: the one from directing, and the other from finding a verdict which disappointed that right.

If the prosecutor had a right to have the question upon the record, for the purpose of appeal, by the jury's confining themselves to the fact of publication, which would leave that question open, it is impossible to say that the jury had a right likewise to judge of the question of libel, and to acquit the defendant, which would deprive the prosecutor of that right. There cannot be contradictory rights, the exercise of one destroying and annihilating the other. I shall discuss this new claim of the prosecutor upon a future occasion; for the present, I will venture to say that no man has a right, a property, or a beneficial interest in the punishment of another. A prosecution at the instance of the Crown has public justice alone, and not private vengeance, for its object; in prosecutions for murder, and felonies, and most other misdemeanors, the prosecutor can have no such pretence, since the record does not comprehend the offence. Why he should have it in the case of a libel, I would gladly be informed.

The learned Judge then stated your Lordship's uniform practice in trying libels, for eight and twenty years, the acquiescence of parties and their counsel, and the ratification of the principle, by a judgment of the Court in the case of the King against Woodfall. He likewise cited a case which, he said, happened within a year or two of the time of the seven bishops, in which a defendant, indicted for a seditious libel, desired it might be left to the jury whether the paper was seditious; but that the Court said the jury were to decide upon the fact; and that if they found him guilty of the fact, the Court would afterwards decide the question of libel. The learned Judge then cited the maxim, ad questionem facti respondent juratores, ad quæstionem juris respondent judices, and said that maxim had been confirmed in the sense he put on it in the very case of Bushel, on which I had relied so much for the contrary position.

The learned Judge, after honouring some of my arguments with answers, and saying again, in stronger terms than before, that there was no difference between the province of the jury in civil and criminal cases, notwithstanding the universality of the general issue instead of special pleadings, told the jury that if they believed that G. meant Gentleman, and F. meant Farmer, the matter for their consideration was reduced to the simple fact of publication.

The Court will please to recollect that the advertisements explaining the Dean's sentiments concerning the pamphlet, and his