nor any question concerning them. In the reign of King George II. there were others; but the first of which there is a note (for which I am obliged to Mr Manley *), was in February 1729,-the King and Clarke,-which was tried before Lord C.-J. Raymond; and there he lays it down expressly (there being no question about an excuse, or about the meaning), he lays it down, the fact of printing and publishing only is in issue. The Craftsman was a celebrated party-paper, wrote in opposition to the ministry of Sir Robert Walpole, by many men of high rank and great talents: the whole party espoused it. It was thought proper to prosecute the famous Hague letter. I was present at the trial; it was in the year 1731. It happens to be printed in the State Trials. There was a great concourse of people; it was a matter of great expectation, and many persons of high rank were present to countenance the defendant. Mr Fazakerly and Mr Bootle (afterwards Sir Thomas Bootle) were the leading counsel for the defendant. They started every objection and laboured every point. When the Judge overruled them, he usually said, "If I am wrong, you know where to apply." The Judge was my Lord Raymond, C.-J., who had been eminent at the bar in the reign of Queen Anne, had been Solicitor and Attorney General in the reign of George I., and was intimately connected with Sir Edward Northey, so that he must have known what the ancient practice had been. The case itself was of great expectation, as I have stated to you, and it was so blended with party passion, that it required his utmost attention; yet, when he came to sum up and direct the jury, he does it as of course, just in the same manner as Mr Justice Buller did," that there were three points for consideration: the fact of publication; the meaning (those two for the jury); the question of law or criminality, for the Court upon the record." Mr Fazakerly and Mr Bootle were, as we all know, able lawyers; they were connected in party with the writers of the Craftsman. They never thought of complaining to the Court of a misdirection: they would not say it was not law; they never did complain. It never was complained of, nor did any idea enter their heads that it was not agreeable to law. Except that case in 1729 that is mentioned, and this, the trials for libels before my Lord Raymond are not printed, nor to be found in any notes. But, to be sure, his direction in all was to the same effect. I, by accident (from memory only I speak now), recollect one where the Craftsman was acquitted; and I recollect it from a famous, witty, and ingenious ballad that was made at the time by Mr Pulteney; and though it is a ballad, I will cite the stanza I remember from it, because it will show you the idea of the able men in opposition, and the leaders of the popular party in those days. They had not an idea of assuming that the jury had a right to determine upon a question of law, but they put it *One of the counsel for the prosecution in this cause, upon another and much better ground. The stanza I allude to is this: "For Sir Philip* well knows That his innuendoes Will serve him no longer In verse or in prose; For twelve honest men have decided the cause, Who are judges of fact, though not judges of laws." It was the admission of the whole of that party: they put it right; they put it upon the meaning of the innuendoes: upon that the jury acquitted the defendant; and they never put up a pretence of any other power, except when talking to the jury themselves. There are no notes as I know of (and I think the Bar would have found them out upon this occasion, if there had been any that were material),—there are no notes of the trials for libel before my Lord Hardwicke. I am sure there are none before Lord Chief-Justice Lee till the year 1752, when the case of the King and Owen came on before him. This happens to be printed in the State Trials, though it is incorrect, but sufficient for the present purpose. I attended that trial as Solicitor-General. Lord Chief-Justice Lee was the most scrupulous observer and follower of precedents, and he directed the jury, as of course, in the same way Mr Justice Buller has done. When I was Attorney-General, I prosecuted some libels; one I remember from the condition and circumstances of the defendant: he was found guilty. He was a common councilman of the city of London and I remember another circumstance, it was the first conviction in the city of London that had been for twenty-seven years, It was the case of the King and Nutt; and there he was convicted, under the very same direction, before Lord Chief-Justice Ryder. In the year 1756 I came into the office I now hold. Upon the first prosecution for a libel which stood in my paper,-I think (but I am not sure), but I think it was the case of the King and Shebbeare,-I made up my mind as to the direction I ought to give. I have uniformly given the same in all, almost in the same form of words. No counsel ever complained of it to the Court. Upon every defendant being brought up for judgment, I have always stated the direction I gave, and the Court has always assented to it. The defence of a lawful excuse never existed in any case before me; therefore I have told the jury if they were satisfied with the evidence of the publication, and that the meanings of the innuendoes *Sir Philip Yorke, afterwards Lord Chancellor Hardwicke, then Attorney-Ge neral. It appears by a pamphlet printed in 1754, that Lord Mansfield is mistaken. The verse runs thus: "Sir Philip well knows, That his innuendo's Will serve him no longer in verse or in prose; For twelve honest men have determin'd the cause, were as stated, they ought to find the defendant guilty: that the question of law was upon record for the judgment of the Court. This direction being as of course, and no question ever raised concerning it in court (though I have had the misfortune to try many libels in very warm times, against defendants most obstinately and factitiously defended), yet the direction being as of course, and no objection made, it passed as of course, and there are no notes of what passed. In one case of the King and Woodfall, on account of a very different kind of question (but upon account of another question), there happens to be a report; and there the direction I have stated is adopted by the whole Court as right, and the doctrine of Mr Justice Buller is laid down in express terms. Such a judicial practice in the precise point from the Revolution, as I think, down to the present day, is not to be shaken by arguments of general theory, or popular declamation. Every species of criminal prosecution has something peculiar in the mode of procedure; therefore general propositions, applied to all, tend only to complicate and embarrass the question. No deduction or conclusion can be drawn from what a jury may do, from the form of procedure, to what they ought to do upon the fundamental principles of the constitution and the reason of the thing, if they will act with integrity and good conscience.. The fundamental definition of trial by jury depends upon a universal maxim that is without an exception. Though a definition or maxim in law without an exception, it is said, is hardly to be found; yet this I take to be a maxim without an exception:—Ad quæstionem juris non respondent juratores; ad quæstionem facti non respondent judices. Where a question can be severed by the form of pleading, the distinction is preserved upon the face of the record, and the jury cannot encroach upon the jurisdiction of the Court; where, by the form of pleading, the two questions are blended together and cannot be separated upon the face of the record, the distinction is preserved by the honesty of the jury. The constitution trusts that, under the direction of a Judge, they will not usurp a jurisdiction which is not in their province. They do not know, and are not presumed to know, the law; they are not sworn to decide the law; they are not required to decide the law. If it appears upon the record, they ought to leave it there, or they may find the facts subject to the opinion of the Court upon the law. But further, upon the reason of the thing and the eternal principles of justice, the jury ought not to assume the jurisdiction of the law. As I said before, they do not know, and are not presumed to know, anything of the matter; they do not understand the language in which it is conceived, or the meaning of the terms. They have no rule to go by but their affections and wishes. It is said, if a man gives a right sentence upon hearing one side only, he is a wicked Judge, because he is right by chance only, and has neglected taking the proper method to be informed; so the jury who usurp the judicature of law, though they happen to be right, are themselves wrong, because they are right by chance only, and have not taken the constitutional way of deciding the question. It is the duty of the Judge, in all cases of general justice, to tell the jury how to do right, though they have it in their power to do wrong, which is a matter entirely between God and their own consciences. To be free, is to live under a government by law. The liberty of the press consists in printing without any previous license, subject to the consequences of law. The licentiousness of the press is Pandora's box, the source of every evil. Miserable is the condition of individuals, dangerous is the condition of the State, if there is no certain law, or which is the same thing, no certain administration of law to protect individuals, or to guard the State. Jealousy of leaving the law to the Court, as in other cases, so in the case of libels, is now, in the present state of things, puerile rant and declamation. The Judges are totally independent of the ministers that may happen to be, and of the King himself. Their temptation is rather to the popularity of the day. But I agree with the observation, cited by Mr Cowper, from Mr J. Forster, "that a popular Judge is an odious and a pernicious character." The judgment of the Court is not final; in the last resort it may be reviewed in the House of Lords, where the opinion of all the judges is taken. In opposition to this, what is contended for? That the law shall be in every particular cause what any twelve men, who shall happen to be the jury, shall be inclined to think liable to no review, and subject to no control, under all the prejudices of the popular cry of the day, and under all the bias of interest in this town, where thousands, more or less, are concerned in the publication of newspapers, paragraphs, and pamphlets. Under such an administration of law, no man could tell, no counsel could advise, whether a paper was or was not punishable. I am glad that I am not bound to subscribe to such an absurdity, such a solecism in politics; but that, agreeable to the uniform judicial practice since the Revolution, warranted by the fundamental principles of the constitution, of the trial by jury, and upon the reason and fitness of the thing, we are all of opinion that this motion should be rejected, and the rule discharged.† * One of the counsel for the prosecution. + Although the Court was unanimous in discharging the rule, Mr Justice Willes, in delivering his opinion, sanctioned by his authority Mr Erskine's argument, that upon a plea of not guilty, or upon the general issue on an indictment or information for a libel, the jury had not only the power, but a constitutional right, to examine, if they thought fit, the criminality or innocence of the paper charged as a libel; declaring it to be his settled opinion, that, notwithstanding the production of sufficient proof of the publication, the jury might upon such examination aequit the defendant generally, though in opposition to the directions of the Judge. without rendering themselves liable either to attaint, fine, or imprisonment, and that such verdict of deliverance could in no way be set aside by the Court. Further SUBJECT of the Trial of the DEAN OF ST Asaph. THIS judgment may be considered as most fortunate for the public, since, in consequence of the very general interest taken in this cause, the public mind was at last fully ripe for the Libel Bill, which was soon after moved in the House of Commons by Mr Fox, and seconded by Mr Erskine. The venerable and learned Chief-Justice undoubtedly established by his agument that the doctrine so soon afterwards condemned by the unanimous sense of the Legislature, when it passed the Libel Act, did not originate with himself, and that he only pronounced the law as he found it established by a train of modern decisions. But, supported as we now are by this judgment of Parliament, we must venture humbly to differ from so truly great an authority. The Libel Bill does not confer upon the jury any jurisdiction over the law inconsistent with the general principle of the constitution: but considering that the question of libel or no libel is frequently a question of fact rather than of law, and in many cases of fact and law almost inseparably blended together, it directs the Judge, as in other cases, to deliver his opinion to the jury upon the whole matter, including of course the question of libel or no libel, leaving them at the same time to found their verdicts upon such whole matter so brought before them as in all other criminal cases.* The best answer to the apprehensions of the great and eminent ChiefJustice regarding this course of proceeding, as then contended for by This Act, viz., 32 Geo. III. c. 60, runs thus: "Whereas doubts have arisen, whether, on the trial of an indictment or information for the making or publishing any libel, where an issue or issues are joined between the King and the defendant or defendants, on the plea of not guilty pleaded, it be competent to the jury impannelled to try the same to give their verdict upon the whole matter in issue: Be it therefore declared and enacted, by, &c., that on every such trial the jury sworn to try the issue may give a general verdict of guilty or not guilty, upon the whole matter put to issue on such indictment or information; and shall not be required or directed by the Court or Judge, before whom such indictment or information shall be tried, to find the defendant or defendants guilty, merely on the proof of the publication by such defendant or defendants of the paper charged to be a libel, and of the sense ascribed to the same in such indictment or information. II. Provided always, that on every such trial, the Court or Judge before whom such indictment or information shall be tried, shall, according to their or his discretion, give their or his opinion or directions to the jury on the matter in issue between the King and the defendant or defendants, in like manner as in all other criminal cases. "III. Provided also, that nothing herein shall extend, or be construed to extend, to prevent the jury finding a special verdict at their discretion, as in other criminal cases. "IV. Provided also, that in case the jury find the defendant or defendants guilty, it shall and may be lawful for the said defendant or defendants to move an arrest of judgment on such ground and in such manner as by law he or they might have done be ore the passing of this Act; anything herein contained to the contrary notwithstanding." |