criminal law, as the head of this court. I am one of those who could almost lull myself by these reflections from the apprehension of immediate mischief, even from the law of libel laid down by your Lordship, if you were always to continue to administer it yourself. I should feel a protection in the gentleness of your character; in the love of justice which its own intrinsic excellence forces upon a mind enlightened by science, and enlarged by liberal education, and in that dignity of disposition which grows with the growth of an illustrious reputation, and becomes a sort of pledge to the public for security but such a security is as a shadow which passeth away; you cannot, my Lord, be immortal, and how can you answer for your successor? If you maintain the doctrines which I seek to overturn, you render yourself responsible for all the abuses that may follow from them to our latest posterity.

My Lord, whatever may become of the liberties of England, it shall never be said that they perished without resistance when under my protection.

On this motion the Court granted a rule to show cause why there should not be a new trial-and cause was accordingly shown by the counsel for the Crown on the 15th of November following; their arguments were taken in shorthand by Mr Blanchard, but were never published. They relied, however, altogether upon the authorities cited by Mr Justice Buller, in his charge to the jury, and upon the uniform practice of the Court of King's Bench, for more than fifty years. The following speech, in support of the new trial, which was taken at the same time by Mr Blanchard, was soon after published by Mr Erskine's authority, in order to attract the attention of the public to the Libel Bill, which Mr Fox was then preparing for the consideration of Parliament.

ARGUMENT, in the King's Bench, in support of the Rights of Juries.

I AM now to have the honour to address myself to your Lordship in support of the rule granted to me by the Court upon Monday last, which, as Mr Bearcroft has truly said, and seemed to mark the observation with peculiar emphasis, is a rule for a new trial. Much of my argument, according to his notion, points another way; whether its direction be true, or its force adequate to the object, it is now my business to show.

In rising to speak at this time, I feel all the advantage conferred by the reply over those whose arguments are to be answered; but I feel a disadvantage likewise which must suggest itself to every intelligent mind. In following the objections of so many learned persons, offered under different arrangements upon a subject so complicated and comprehensive, there is much danger of being drawn from that method and order, which can alone fasten conviction upon unwilling minds, or drive them from the shelter which ingenuity never fails to find in the labyrinth of a desultory discourse.

The sense of that danger, and my own inability to struggle against it, led me originally to deliver to the Court certain written and maturely considered propositions, from the establishment of which I resolved not to depart, nor to be removed, either in substance or in order, in any stage of the proceedings, and by which I must, therefore, this day unquestionably stand or fall.

Pursuing this system, I am vulnerable two ways, and in twoways only. Either it must be shown that my propositions are not valid in law; or, admitting their validity, that the learned Judge's charge to the jury at Shrewsbury was not repugnant to them: there can be no other possible objections to my application for a new trial. My duty to-day is, therefore, obvious and simple; it is, first, to re-maintain those propositions; and then to show that the charge delivered to the jury at Shrewsbury was founded upon the absolute denial and reprobation of them.

I begin, therefore, by saying again, in my own original words, that when a bill of indictment is found, or an information filed, charging any crime or misdemeanour known to the law of England, and the party accused puts himself upon the country by pleading the general issue, Not guilty, the jury are GENERALLY charged

with his deliverance from that CRIME, and not SPECIALLY from the fact or facts, in the commission of which the indictment or information charges the crime to consist; much less from any single fact, to the exclusion of others charged upon the same record.

Secondly, that no act, which the law in its general theory holds. to be criminal, constitutes in itself a crime, abstracted from the mischievous intention of the actor. And that the intention, even where it becomes a simple inference of legal reason from a fact or facts established, may and ought to be collected by the jury, with the Judge's assistance. Because the act charged, though established as a fact in a trial on the general issue, does not necessarily and unavoidably establish the criminal intention by any ABSTRACT conclusion of law; the establishment of the fact being still no more than full evidence of the crime, but not the crime itself; unless the jury render it so themselves, by referring it voluntarily to the Court by special verdict.

These two propositions, though worded with cautious precision and in technical language, to prevent the subtlety of legal disputation in opposition to the plain understanding of the world, neither do nor were intended to convey any other sentiment than this, viz., that in all cases where the law either directs or permits a person accused of a crime to throw himself upon a jury for deliverance by pleading generally that he is not guilty, the jury, thus legally appealed to, may deliver him from the accusation by a general verdict of acquittal, founded (as in common sense it evidently must be) upon an investigation as general and comprehensive as the charge itself from which it is a general deliverance.

Having said this, I freely confess to the Court that I am much at a loss for any further illustration of my subject; because I cannot find any matter by which it might be further illustrated so clear, or so indisputable, either in fact or in law, as the very proposition itself which upon this trial has been brought into question. Looking back upon the ancient constitution, and examining_with painful research the original jurisdictions of the country, I am utterly at a loss to imagine from what sources these novel limitations of the rights of juries are derived. Even the Bar is not yet trained to the discipline of maintaining them. My learned friend Mr Bearcroft solemly abjures them; he repeats to-day what he avowed at the trial, and is even jealous of the imputation of having meant less than he expressed; for when speaking this morning of the right of the jury to judge of the whole charge, your Lordship corrected his expression by telling him he meant the power, and not the right; he caught instantly at your words, disavowed your explanation, and, with a consistency which does him honour, declared his adherence to his original admission in its full and obvious extent. "I did not mean," said he, " merely to acknowledge that the jury have the power, for their power nobody ever

doubted; and, if a Judge was to tell them they had it not, they would only have to laugh at him, and convince him of his error by finding a general verdict which must be recorded. I meant, therefore, to consider it as a right, as an important privilege, and of great value to the constitution."

Thus Mr Bearcroft and I are perfectly agreed: I never contended for more than he has voluntarily conceded. I have now his express authority for repeating, in my own former words, that the jury have not merely the power to acquit, upon a view of the whole charge, without control or punishment, and without the possibility of their acquittal being annulled by any other authority; but that they have a constitutional, legal right to do it,—a right fit to be exercised, and intended by the wise founders of the government to be a protection to the lives and liberties of Englishmen against the encroachments and perversions of authority in the hands of fixed magistrates.

But this candid admission on the part of Mr Bearcroft, though very honourable to himself, is of no importance to me; since, from what has already fallen from your Lordship, I am not to expect a ratification of it from the Court; it is therefore my duty to establish it. I feel all the importance of my subject, and nothing shall lead me to-day to go out of it. I claim all the attention of the Court, and the right to state every authority which applies in my judgment to the argument, without being supposed to introduce them for other purposes than my duty to my client and the constitution of my country warrants and approves.

It is not very usual, in an English Court of Justice, to be driven back to the earliest history and original elements of the constitution in order to establish the first principles which mark and distinguish English law; they are always assumed, and, like axioms in science, are made the foundations of reasoning without being proved. Of this sort our ancestors, for many centuries, must have conceived the right of an English jury to decide upon every question which the forms of the law submitted to their final decision; since, though they have immemorially exercised that supreme jurisdiction, we find no trace in any of the ancient books. of its ever being brought into question. It is but as yesterday, when compared with the age of the law itself, that judges, unwarranted by any former judgments of their predecessors, without any new commission from the Crown, or enlargement of judicial authority from the Legislature, have sought to fasten a limitation upon the rights and privileges of jurors, totally unknown in ancient times, and palpably destructive of the very end and object of their institution.

No fact, my Lord, is of more easy demonstration, for the history and laws of a free country lie open even to vulgar inspection.

During the whole Saxon era, and even long after the establish

ment of the Norman government, the whole administration of justice, criminal and civil, was in the hands of the people, without the control or intervention of any judicial authority delegated to fixed magistrates by the Crown. The tenants of every manor administered civil justice to one another in the court-baron of their lord; and their crimes were judged of in the leet, every suitor of the manor giving his voice as a juror, and the steward being only the register, and not the judge. On appeals from these domestic jurisdictions to the county court, and to the torn of the sheriff, or in suits and prosecutions originally commenced in either of them, the sheriff's authority extended no further than to summon the jurors, to compel their attendance, ministerially to regulate their proceedings, and to enforce their decisions; and even where he was specially empowered by the King's writ of justices to proceed in causes of superior value, no judicial authority was thereby conferred upon himself, but only a more enlarged jurisdiction ON THE JURORS who were to try the cause mentioned in the writ.

It is true that the sheriff cannot now intermeddle in pleas of the Crown; but with this exception, which brings no restrictions on juries, these jurisdictions remain untouched at this day; intricacies of property have introduced other forms of proceeding, but the constitution is the same.

This popular judicature was not confined to particular districts, or to inferior suits and misdemeanours, but pervaded the whole legal constitution; for when the Conqueror, to increase the influence of his crown, erected that great superintending Court of Justice in his own palace, to receive appeals criminal and civil from every court in the kingdom, and placed at the head of it the capitalis justiciarius totius Anglice, of whose original authority the Chief Justice of this Court is but a partial and feeble emanation; even that great magistrate was in the aulá regis merely ministerial; every one of the King's tenants who owed him service in right of a barony had a seat and a voice in that high tribunal, and the office of justiciar was but to record and to enforce their judgments.

In the reign of King Edward I., when this great office was abolished, and the present Courts at Westminster established by a distribution of its powers, the barons preserved that supreme superintending jurisdiction which never belonged to the justiciar, but to themselves only as the jurors in the King's court: a jurisdiction which, when nobility, from being territorial and feodal, became personal and honorary, was assumed and exercised by the peers of England, who, without any delegation of judicial authority from the Crown, form to this day the supreme and final court of English law, judging in the last resort for the whole kingdom, and sitting upon the lives of the peerage, in their ancient and genuine character, as the pares of one another.

VOL. I.

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