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The danger equal
in posed proseco tion for treason.
ferent with in
glishmen, without the interposition of a jury; yet scale against an obscure individual, the freedom
its establishment would unquestion of the press is at an end. For how can it be to the absurdity ably extend to annihilate the sub- said that the press is free because every thing
stance of that trial in every prose- may be published without a previous license, if
cution for high treason, where the the publisher of the most meritorious work which publication of any writing was laid as the overt the united powers of genius and patriotism ever
I illustrated this by a case, when I moved gave to the world may be prosecuted by informfor a rule, and called upon my friends for an an- ation of the King's Attorney General, without swer to it; but no notice has been taken of it by the consent of the grand jury-may be conany of them. This was just what I expected : victed by the petty jury, on the mere fact of when a convincing answer can not be found to publishing (wbo, indeed, without perjuring theman objection, those who understand controversy selves, must on this system inevitably convict never give strength to it by a weak one. I said, him), and must then depend upon judges, who and I again repeat, that is an indictment charges may be the supporters of the very administration that a defendant did traitorously intend, compass, whose measures are questioned by the defendand imagine the death of the King, and, in order ant, and who must, therefore, either give judgto carry such treason into execution, published ment against him or against themselves. a paper, which it sets out literatim on the face To all this Mr. Bearcroft shortly answers, Are of the record, the principle which is laid down you not in the hands of the same The case is difto-day would subject that person to the pains judges, with respect to your proper- dictments four of death by the single authority of the judges, ty, and even to your life, when spe- Other crimes. without leaving any thing to the jury, but the cial verdicts are found in murder, selony, and bare fact of publishing the paper. For if that treason? In these cases do prisoners run any fact were proved, and the defendant called no hazard from the application of the law by the witnesses, the judge who tried him would be judges, to the facts found by the juries? Where warranted, nay bound in duty by the principle can you possibly be safer ? in question, to say to the jury, "Gentlemen, the My Lord, this is an argument which I can overt act of treason charged upon the defendant answer without indelicacy or offense, because is the publication of this paper, intending to com- your Lordship’s mind is much too liberal to suppass the death of the King; the fact is proved, pose that I insult the court by general observaand you are, therefore, bound to convict him : the tions on the principles of our legal government. treasonable intention is an inference of law from However sase we might be, or might think ourthe act of publishing; and if the thing published selves, the Constitution never intended to invest does not, upon a future examination, intrinsically judges with a discretion which can not be tried support that inference, the court will arrest the and measured by the plain and palpable standard judgment, and your verdict will not affect the of law; and in all the cases put by Mr. Bearerost, prisoner.”
no such loose discretion is exercised as must be My Lord, I will rest my whole argument upon entertained by a judgment on a seditious libel,
the analogy between these two cases, and therefore the cases are not parallel.
and give up every objection to the On a special verdict for murder, the life of the doctrine when applied to the one, if
, upon the prisoner does not depend upon the religious, strictest examination, it shall not be found to ap- moral, or philosophical ideas of the judges, conply equally to the other. If the seditious inten- cerning the nature of homicide. No; precetion be an inference of law, from the fact of pub- dents are searched for, and if he is condemned lishing the paper which this indictment charges at all, he is judged exactly by the same rules as to be a libel, is not the treasonable intention others have been judged by before him. His equally an inference from the fact of publishing conduct is brought to a precise, clear, intelligible that paper, which the other indictment charges standard, and cautiously measured by it; it is the to be an overt act of treason ? In the one case, law, therefore, and not the judge, which condemns as in the other, the writing or publication of a him. It is the same in all indictments or civil paper is the whole charge; and the substance actions for slander upon individuals. of the paper so written or published makes all Reputation is a personal right of the subject the difference between the two oflenses. If that –indeed, the most valuable of any—and it is, substance be matter of law where it is a seditious therefore, secured by law, and all injuries to it libel, it must be matter of law where it is an act clearly ascertained. Whatever slander hurts a of treason; and if, because it is law, the jury man in his trade-subjects him to danger of life, are excluded from judging it in the one instance, liberty, or loss of property—or tends to render their judgment must sufler an equal abridgment him infamous—is the subject of an action, and, in the other.
in some instances, of an indictment.25 But in all The consequence is obvious. If the jury, by these cases where the malus animus is found by The dovetrine con- an appeal to their consciences, are the jury, the judges are in like manner a sale
to be thus limited in the free exer- repository of the legal consequence; because ifres in the hands cise of that right which was given
25 The general rule is, that wherever an action them by the Constitution, to be a will lie for slander, without laying special damages, protection against judicial authority, where the an indictment will lie for the same words, if reduced weight and majesty of the crown is put into the to writing and published.
The two cases compared.
ended for hy the Irown puts the iberty of
Ñ the judges,
such libels may be brought to a well-known politicians, as moralists, as philosophers, or as listandard of strict and positive law: they leave no censers of the press; but they would have no rediscretion in the judges. The determination of semblance to the judgments of an English court what words, when written or spoken of another, of justice, because it could have no warrant from are actionable, or the subject of an indictment, the act of your predecessors, nor afford any precleaves no more latitude to a court sitting in judg- edent to your successors. ment on the record, than a question of title does But all these objections are perfectly removed, in a special verdict in ejectment.
when the seditious tendency of a pa. Transition to the But I beseech your Lordship to consider by per is considered as a question of fourth proposiwhat rule the legality or illegality of this Dia- fact. We are then relieved from the ges of adopting logue is to be decided by the court as a question absurdity of legal discussion, sepaof law upon the record. Mr. Bearcroft has ad- rated from all the facts from which alone the law mitted in the most unequivocal terms—what, in- can arise. The jury can do what (as I observed deed, it was impossible for him to deny-that ev. before) your Lordships can not do in judging by ery part of it, when viewed in the abstract, was the record—they can examine by evidence all legal; but he says, there is a great distinction to those circumstances that tend to establish the sebe taken between speculation and exhortation, ditious tendency of the paper, from which the and that it is this latter which makes it a libel. court is shut out—they may know themselves, or I readily accede to the truth of the observation ; it may be proved before them, that it has excited but how your Lordship is to determine that dif- sedition already—they may collect from witnessference as a question of law, is past my compre es that it has been widely circulated and sedi. hension. For if the Dialogue, in its phrase and tiously understood—or, if the prosecution (as is composition, be general, and its libelous tenden- wisest) precedes these consequences, and the reacy arises from the purpose of the writer to raise soning must be à priori, surely gentlemen living discontent by a seditious application of legal doc- in the country are much better judges than your trines, that purpose is surely a question of fact, Lordship, what has or has not a tendency to disif ever there was one, and must, therefore, be turb the neighborhood in which they live, and distinctly averred in the indictment, to give the that very neighborhood is the forum of criminal cognizance of it as a fact to the jury, without trial. which no libel can possibly appear upon the rec- If they know that the subject of the paper is ord. This is well known to be the only office of the topic that agitates the country around them the innuendo; because the judges can presume -if they see danger in that agitation, and have nothing which the strictest rules of grammar do reason to think that the publisher must have innot warrant them to collect intrinsically from the tended it—they say he is guilty. If, on the writing itself.
other hand, they consider the paper to be legal, Circumscribed by the record, your Lordship and enlightened in principle, likely to promote a can form no judgment of the tendency of this Di- spirit of activity and liberty in times when the alogue to excite sedition by any thing but the activity of such a spirit is essential to the public mere words. You must look at it as if it was an safety, and have reason to believe it to be writold manuscript dug out of the ruins of Hercula- ten and published in that spirit, they say, as they
You collect nothing from the time when, ought to do, that the writer or the publisher is not or the circumstances under which, it was pub- guilty. Whereas your Lordships' judgment upon lished the person by whom, and those among the language of the record must ever be in the whom, it was circulated. Yet these may ren- pure abstract; operating blindly and indiscrimder a paper, at one time and under some circum- inately upon all times, circumstances, and intenstances, dangerously wicked and seditious, which, tions; making no distinction between the gloriat another time and under different circumstan- ous attempts of a Sidney or a Russell, struggling ces, might be innocent and highly meritorious. If against the terrors of despotism under the Stuarts, puzzled by a task so inconsistent with the real and those desperate adventurers of the year fortysense and spirit of judicature, your Lordship five, who Jibeled the person, and excited rebellshould spurn the setters of the record, and, judg- ion against the mild and gracious government of ing with the reason rather than the infirmities of our late excellent sovereign King George the men, should take into your consideration the state Second. of men's minds on the subject of equal represent- My Lord, if the independent gentlemen of Enation at this moment, and the great disposition of gland are thus better qualified to decide the present times to revolution in government- from cause of knowledge, it is no of. bet to if, reading the record with these impressions, your sense to the court to say that they are eide with Lordships should be led to a judgment not war- full as likely to decide with impartial ranted by an abstract consideration of the record justice as judges appointed by the Crown. Your --then, besides that such a judgment would be Lordships have but a life interest in the public founded on facts not in evidence before the court, property, but they have an inheritance in it for and not within its jurisdiction if they were, let me their children. Their landed property depends further remind your Lordships that, even if those upon the security of the government, and no man objections to the premises were removed, the con- who wantonly attacks it can hope or expect to esclusion would be no conclusion of law. Your de cape from the selfish lenity of a jury. On the first cision on the subject might be very sagacious as principles of human action they must lean heavily
The jury as
This proposi tion more has attempted di
against him. It is only when the pride of En- I should be ; but it is nothing more. The arrest glishmen is insulted by such doctrines as I am of judgment which follows after a verdict of opposing to-day, that they may be betrayed into guilty for publishing a writing, which, on inspeca verdict delivering the guilty, rather than sur- tion of the record, exhibits to the court no spe. render the rights by which alone innocence in cific offense against the law, is no impeachment of the day of danger can be protected.
I never denied such a jurisdiction IV. I venture, therefore, to say, in support of to the court. My position is, that no man shall Fouren Prip. one of my original Propositions, That be punished for the criminal breach of any law,
where a writing indicted as a libel until a jury of his equals have pronounced him neither contains, nor is averred by the indictment guilty in mind as well as in act.
Actus non fato contain, any slander of an individual, so as to cit reum nisi mens sit rea." fall within those rules of law which protect per- But I never asserted that a jury had the pow. sonal reputation, but whose criminality is charg. er to make criminal law, as well as to adminised to consist, as in the present instance, in its tend- ter it; and, therefore, it is clear that they can not ency to stir up general discontent—the trial of deliver over a man to punishment, if it appears such an indictment neither involves, nor can in by the record of his accusation—which it is the its obvious nature involve, any abstract question office of judicature to examine—that he has not of law for the judgment of a court, bul must offended against any positive law; because, howwholly depend upon the judgment of the jury on ever criminal he may have been in his disposithe tendency of the writing itself to produce such tion, which is a fact established by the verdici, consequences, when connected with all the cir- yet statute and precedents can alone decide what cumstances which attended its publication. is by law an indictable offense. It is unnecessary to push this part of the ar- If, for instance, a man were charged by an in
gument further, because I have heard dictment with having held a discourse in words
nothing from the bar against the po. highly seditious, and were found guilty by the rectly to reinte sition which it maintains. None of jury, it is evident that it is the province of the the gentlemen have, to my recollection, given the court to arrest that judgment. Why? Because, court any one single reason, good or bad, why though the jury have found that he spoke the the tendency of a paper to stir up discontent words as laid in the indictment, with the sediagainst government, separated from all the cir- tious intention charged upon him, which they, cumstances which are ever shut out from the rec- and they only, could find; yet, as the words are ord, ought to be considered as an abstract ques. not punishable by indictmeni, as when committed tion of law. They have not told us where we are to writing, the court could not pronounce judg. to find any matter in the books to enable us to ar
The declaration of the jury, that the degue such questions before the court, or where sendant was guilty in manner and form as acyour Lordships yourselves are to find a rule for cused, could evidently never warrant a judgment, your judgments on such subjects. I confess that if the accusation itsell contained no charge of to me it looks more like legislation or arbitrary an offense against the law. power than English judicature. If the court can In the same manner, if a butcher were indict. şay this is a criminal writing-not because we ed for privately putting a sheep to causeless and know that mischiel was intended by its author, unnecessary torture in the exercise of his trade, or is even contained in itsell, but because fools, but not in public view, so as to be productive of believ the one and the other, may do mischief evil example, and the jury should find him guilty, in their fully—the suppression of such writings, I am afraid no judgment could follow; because, under particular circumstances, may be wise pol- though done malo animo, yet neither statute nor icy in a state ; but upon what principle it can be precedent have, perhaps, determined it to be an criminal law in England, to be settled in the ab- indictable offense ; it would be difficult to draw stract by judges, I confess with humility that I the line. An indictment would not lie for every have no organs to understand.
inhuman neglect of the sufferings of the smallest Mr. Leycester (counsel for the Crown) felt the innocent animals which Providence has subjected
difficulıy of maintaining such a prop to us : in directnttempt osition by any argument of law, and Yet the poor beetle which we tread apon.
therefore had recourse to an argu- In corporeal suffering feels a pang as great ment of fact. “18," says my learned friend, As when a giant dies." "what is or is not a seditious libel, be not a ques. A thousand other instances might be brought tion of law for the court. but of fact for the jury, of acts base and immoral, and prejudicial in their upon what principle do defendants, found guilty consequences, which are yet not indictable by of such libels by a general verdict, defeat the law. judgment for error on the record; and what is
In the case of the King against Brewer, in still more in point, upon what principle does Mr. Cowper’s Reports, it was held that knowingly Erskine himsell, if he fails in his present motion, exposing to sale and selling gold under sterling mean to ask your Lordships to arrest this very for standard gold is not indiciable; because the judgment by saying that the Dialogue is not a act refers to goldsmiths only, and private cheat. libel ?!
My Lord, the observation is very ingenious, 36 It is not the act wbich makes a man guilty, but and God knows the argument requires that it the intention.
Answer to an
ficers do com monly art on
proposition in their urgu. ments to the jury.
ing is not a common-law offense. 37 Here, too, I did the present Chancellor [Lord Thurlow), then the declaration of the jury that the defendant is Attorney General, content himself with saying guilty in manner and form as accused, does not that he had proved the publication, and that the change the nature of the accusation. The ver- criminal quality of the paper which raised the dict does not go beyond the charge; and if the legal inference of guilt against the defendant, charge be invalid in law, the verdict must be in- was matter for the court ? No, my Lord; he valid also. All these cases, therefore, and many went at great length into its dangerous and persimilar ones which might be put, are clearly nicious tendency, and applied himself with skill consistent with my principle. I do not seek to and ability to the understandings and the con. erect jurors into legislators or judges. There sciences of the jurors. This instance is in itself must be a rule of action in every society, which decisive of his opinion. That great magistrate it is the duty of the Legislature to create, and could not have acted thus upon the principle con. of judicature to expound when created. I only tended for to-day. He never was an idle de. support their right to determine guilt or inno- claimer: close and masculine argument is the cence where the crime charged is blended by the characteristic of his understanding. general issue with the intention of the criminal; The character and talents of the late Lord more especially when the quality of the act it. Chief Justice De Grey no less entitle me to infer self, even independent of that intention, is not his opinion from his uniform conduct. In all measurable by any precise principle or precedent such prosecutions, while he was in office, he of law, but is inseparably connected with the held the same language to juries; and particutime wben, the place where, and the circum- larly in the case of the King against Woodsall29 stances under which the defendant acted. —to use the expression of a celebrated writer
My Lord, in considering libels of this nature, on the occasion (Junius)—"he tortured bis facPro cuting of as opposed to slander on individuals, ulties for more than an hour, to convince them
to be mere questions of fact, or, at that Junius's letter was a libel.'?30 the principle of all events, to contain matter fit for The opinions of another Crown lawyer, who
the determination of the jury, I am has since passed through the first offices of the
supported not only by the general law, and filled them with the highest reputation, practice of courts, but even of those very prac. I am not driven to collect alone from his lanticers themselves, who, in prosecuting for the guage as an Attorney General, because he car. Crown, have maintained the contrary doctrine. ried them with him to the seat of justice. Yet Your Lordships will, I am persuaded, admit that one case is too remarkable to be omitted. Lord the general practice of the profession—more es- Camden, prosecuting Dr. Shebbeare, told the pecially of the very heads of it, prosecuting too, jury that he did not desire their verdict upon any for the public-is strong evidence of the law. other principle than their solemn conviction of Attorneys-general have seldom entertained such the truth of the information, which charged the a jealousy of the King's judges in state prosecu- defendant with a wicked design to alienate the tions as to lead them to make presents of juris- hearts of the subjects of this country from their diction to juries, which did not belong to them king upon the throne. of right by the Constitution of the country. Nei- To complete the account : my learned friend ther can it be supposed that men in high office Mr. Bearcroft, though last, not least in favor, and of great experience should in every instance, upon this very occasion, spoke above an hour to though differing from each other in temper, char- the jury at Shrewsbury, to convince them of the acter, and talents, uniformly fall into the same libelous tendency of the Dialogue, which soon absurdity of declaiming to juries upon topics to- afterward the learned judge desired them wholly tally irrelevant, when no such inconsistency is to dismiss from their consideration, as matter sound to disfigure the professional conduct of the with which they had no concern! The real fact same men in other cases. Yet I may appeal to your Lordship's recollection, without having re- Information," and eager for celebrity, moved, at a course to the state trials, whether, upon every meeting of that society. “That a subscription be prosecution for a seditious libel within living raised for the widows, orphans, and aged parents memory, the Attorney General has not uniformly death to slavery, were, for this reason only, mur
of their American fellow.subjects, who, preferring stated such writings at length to the jury, point- dered by the Kivg's troops at Lexington and Con. ed out their seditious tendency which rendered cord, on the 19th of April, 1775.” The sum of £100 them criminal, and exerted all his powers to was voted, and Mr. Horne took on himself the reconvince them of their illegality, as the very sponsibility of signing the order for transmitting it to point on which their verdict for the Crown was Dr. Franklin ; in consequence of wbich he was prosto be founded.
ecuted, and sentenced to pay £200, to be imprisonOn the trial of Mr. Horne, for publishing 'an
ed one year, and to find securities for three.
29 Woodfall, the printer, was prosecuted in 1770 Caves in advertisement in favor of the widows of those American subjects who had been for the publication of the celebrated Letter of Ju
nius to the King. On the trial before Lord Mans. murdered by the King's troops at Lexington, 23
field, in consequence of his Lordship’s direction to 21 But cheating has since been made a statuta- the jury, excluding from them the question of the ble offense, particularly by 7 and 8 Geo. IV. letter being a libel or not, a verdict was returned
28 Mr. Horne (afterward Horne Tooke), in 1775, of “Guilty of printing and publishing only." being a member of the “ Society for Constitutional 30 See the Preface to “ Junius's Letters
Case of the
is that the doctrine is too absurd to be acted he was just going to direct them to find the bishupon—too distorted in principle to admit of con- ops not guilty, when in came my Lord Presi. sistency in practice. It is contraband in law, dent (such sort of witnesses were, no doubt, al. and can only be smuggled by those who intro- ways at hand when wanted), who proved the duce it. It requires great talents and great ad- delivery to his Majesty. Therefore," contindress to hide its deformity; in vulgar hands it ued the Chief Justice, "il you believe it was the becomes contemptible.
same petition, it is a publication sufficient, and Having supported the rights of juries, by the we must, therefore, come to inquire whether it Practice of uniform practice of Crown lawyers, let be a libel.” He then gave his reasons for thinking
us now examine the question of author- it within the case de libellis famosis (defamatory ity, and see how this court itsell
, and its judges, libels), and concluded by saying to the jury, “In have acted upon trials for libels in former times; short, I must give you my opinion : I do iake it for, according to Lord Raymond, in Franklin's to be a libel; if my brothers have any thing to case, 31 as cited by Mr. Justice Buller, at Shrews- say to it, I suppose they will deliver their opinbury, the principle I am supporting had, it seems, ion." What opinion ? not that the jury had no been only broached about the year 1731, by jurisdiction to judge of the matter, but an opinsome men of party spirit, and then, too, for the ion for the express purpose of enabling them to very first time. My Lord, such an observation give that judgment which the law required at in the mouth of Lord Raymond proves how dan- their hands. gerous it is to take up as doctrine every thing Mr. Justice Holloway then followed the Chief flung out at Nisi Prius ; above all, upon subjects Justice; and so pointedly was the question of wbich engage the passions and interests of gov- libel or no libel, and not the publication, ibe only ernment. The most solemn and important trials matter which remained in doubt, and which the with which history makes us acquainted, dis- jury, with the assistance of the court, were to cussed, too, at the bar of this court, when filled decide upon, that when the learned judge went with judges the most devoted to the Crown, af- into the facts which had been in evidence, the ford the most decisive contradiction to such an Chief Justice said to him, “ Look you ; by-theunfounded and unguarded assertion.
way, brother, I did not ask you to sum up the In the famous case of the seven bishops, 92 the evidence, but only to deliver your opinion to the
question of libel or no libel was held jury, whether it be a libel or no." The Chief seven bishops unanimously by the Court of King's Justice's remark, though it proves my position, Bench trying the cause at the bar, to be matter was, however, very unnecessary; for, but a mofor the consideration and determination of the ment before, Mr. Justice Holloway had declared jury; and the bishops' petition to the King, he did not think it was a libel, but, addressing which was the subject of the information, was himself to the jury, had said, “It is left to you, accordingly delivered to them, when they with. gentlemen.” drew to consider of their verdict.
Mr. Justice Powell, who likewise gave his opin Thinking this case decisive, I cited it at the ion that it was no libel, said to the jury, “But the trial, and the answer it received from Mr. Bear- matter of it is before you, and I leave the issue of it croft was, that it had no relation to the point in to God and your own consciences.” And so little dispute between us, for that the bishops were was it in the idea of any one of the court that the acquitted, not upon the question of libel, but be- jury ought to found their verdict solely upon the cause the delivery of the petition to the King evidence of the publication, without aitending to was held to be no publication.
the criminality or innocence of the petition, that I was not a little surprised at this statement, the Chief Justice himself consented, on their with. but my turn of speaking was then past. Fortu- drawing from the bar, that they should carry with nately, to-day it is my privilege to speak last, them all the materials for coming to a judgment and I have now lying before me the fifth volume as comprehensive as the charge; and, indeed, exof the State Trials, where the case of the bish-pressly directed that the information, the libel, the ops is printed, and where it appears that the declarations under the great seal, and even the publication was expressly proved that nothing statute book, should be delivered to them. turned upon it in the judgment of the court, and The happy issue of this memorable trial, in that the charge turned wholly upon the question the acquittal of the bishops by the jury, exercisof libel, which was expressly Jest to the jury by ing jurisdiction over the whole charge, freely every one of the judges. Lord Chief Justice granted to them as legal, even by King James's Wright, in summing up the evidence, told them judges, is admitted by two of the gentlemen (for that a question bad at first arisen about the pub- the Crown) to have prepared and forwarded the lication, it being insisted on that the delivery of glorious era of the Revolution. Mr. Bower, in the petition to the King had not been proved; particular, spoke with singular enthusiasm conthat the court was of the same opinion; and that cerning this verdict, choosing—for reasons suffi. 31 See antè, p. 666.
ciently obvious—10 ascribe it to a special mira. 32 Committed to the Tower by James II., A.D. rle wrought for the safety of the nation, rather 1688, and prosecuted for petitioning the King against than to the right lodged in the jury to save it by their being required to promulgate his second dec- its laws and Constitution ! laration of indulgence in favor of the Roman Catho- My learned friend, finding his argument like
nothing upon the earth, was obliged to ascend