The consequence is obvious. If the jury, by The doctrine con- an appeal to their consciences, are Trown puts the to be thus limited in the free exerberty of the cise of that right which was given them by the Constitution, to be a protection against judicial authority, where the weight and majesty of the crown is put into the

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 in a special verdict in ejectment.

But I beseech your Lordship to consider by what rule the legality or illegality of this Dialogue is to be decided by the court as a question of law upon the record. Mr. Bearcroft has admitted in the most unequivocal terms-what, indeed, it was impossible for him to deny that every part of it, when viewed in the abstract, was legal; but he says, there is a great distinction to be taken between speculation and exhortation, and that it is this latter which makes it a libel. I readily accede to the truth of the observation; but how your Lordship is to determine that difference as a question of law, is past my compre hension. For if the Dialogue, in its phrase and composition, be general, and its libelous tendency arises from the purpose of the writer to raise discontent by a seditious application of legal doctrines, that purpose is surely a question of fact, if ever there was one, and must, therefore, be distinctly averred in the indictment, to give the cognizance of it as a fact to the jury, without which no libel can possibly appear upon the record. This is well known to be the only office of the innuendo; because the judges can presume nothing which the strictest rules of grammar do not warrant them to collect intrinsically from the writing itself.

tion: Advanta

But all these objections are perfectly removed, when the seditious tendency of a pa- Transition to the per is considered as a question of fourth proposi fact. We are then relieved from the ges of adopting absurdity of legal discussion, separated from all the facts from which alone the law can arise. The jury can do what (as I observed before) your Lordships can not do in judging by the record-they can examine by evidence all those circumstances that tend to establish the seditious tendency of the paper, from which the court is shut out—they may know themselves, or it may be proved before them, that it has excited sedition already-they may collect from witnesses that it has been widely circulated and seditiously understood-or, if the prosecution (as is wisest) precedes these consequences, and the reasoning must be à priori, surely gentlemen living in the country are much better judges than your Lordship, what has or has not a tendency to disturb the neighborhood in which they live, and that very neighborhood is the forum of criminal trial.

If they know that the subject of the paper is the topic that agitates the country around them

if they see danger in that agitation, and have reason to think that the publisher must have intended it-they say he is guilty. If, on the other hand, they consider the paper to be legal, and enlightened in principle, likely to promote a spirit of activity and liberty in times when the activity of such a spirit is essential to the public safety, and have reason to believe it to be written and published in that spirit, they say, as they ought to do, that the writer or the publisher is not guilty. Whereas your Lordships' judgment upon the language of the record must ever be in the pure abstract; operating blindly and indiscriminately upon all times, circumstances, and intentions; making no distinction between the glorious attempts of a Sidney or a Russell, struggling against the terrors of despotism under the Stuarts, and those desperate adventurers of the year fortyfive, who libeled the person, and excited rebellion against the mild and gracious government of our late excellent sovereign King George the Second.

Circumscribed by the record, your Lordship can form no judgment of the tendency of this Dialogue to excite sedition by any thing but the mere words. You must look at it as if it was an old manuscript dug out of the ruins of Herculaneum. You collect nothing from the time when, or the circumstances under which, it was published the person by whom, and those among whom, it was circulated. Yet these may render a paper, at one time and under some circumstances, dangerously wicked and seditious, which, at another time and under different circumstances, might be innocent and highly meritorious. If puzzled by a task so inconsistent with the real sense and spirit of judicature, your Lordship should spurn the fetters of the record, and, judging with the reason rather than the infirmities of men, should take into your consideration the state 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 jury as the present times to revolution in government- from cause of knowledge, it is no of if, reading the record with these impressions, your fense to the court to say that they are 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

likely as the cide with

court to de

justice.

against him. It is only when the pride of En- | should be; but it is nothing more.
glishmen is insulted by such doctrines as I am
opposing to-day, that they may be betrayed into
a verdict delivering the guilty, rather than sur-
render the rights by which alone innocence in
the day of danger can be protected.

The arrest

of judgment which follows after a verdict of
guilty for publishing a writing, which, on inspec-
tion of the record, exhibits to the court no spe-
cific offense against the law, is no impeachment of
my doctrine.
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 Fourth Prop- 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.26 fall within those rules of law which protect per- But I never asserted that a jury had the powsonal reputation, but whose criminality is charger 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, but 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 verdict, 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.

attempted dis

It is unnecessary to push this part of the arThis proposi gument further, because I have heard tion no one has nothing from the bar against the porectly to reinte. sition which it maintains. None of the gentlemen have, to my recollection, given the court any one single reason, good or bad, why the tendency of a paper to stir up discontent against government, separated from all the circumstances which are ever shut out from the record, ought to be considered as an abstract question of law. They have not told us where we are to find any matter in the books to enable us to argue such questions before the court, or where your Lordships yourselves are to find a rule for your judgments on such subjects. I confess that to me it looks more like legislation or arbitrary power than English judicature. If the court can say this is a criminal writing-not because we know that mischief was intended by its author, or is even contained in itself, but because fools, believing the one and the other, may do mischief in their folly—the suppression of such writings, under particular circumstances, may be wise policy in a state; but upon what principle it can be criminal law in England, to be settled in the abstract by judges, I confess with humility that I have no organs to understand.

Answer to an

Mr. Leycester [counsel for the Crown] felt the difficulty of maintaining such a propindirect attempt osition by any argument of law, and at refutation. therefore had recourse to an argument of fact. "If," says my learned friend, "what is or is not a seditious libel, be not a question of law for the court, but of fact for the jury, upon what principle do defendants, found guilty of such libels by a general verdict, defeat the judgment for error on the record; and what is still more in point, upon what principle does Mr. Erskine himself, if he fails in his present motion, mean to ask your Lordships to arrest this very judgment by saying that the Dialogue is not a libel ?"

My Lord, the observation is very ingenious, and God knows the argument requires that it

If, for instance, a man were charged by an indictment with having held a discourse in words highly seditious, and were found guilty by the jury, it is evident that it is the province of the court to arrest that judgment. Why? Because, though the jury have found that he spoke the words as laid in the indictment, with the seditious intention charged upon him, which they, and they only, could find; yet, as the words are not punishable by indictment, as when committed to writing, the court could not pronounce judgment. The declaration of the jury, that the defendant was guilty in manner and form as accused, could evidently never warrant a judgment, if the accusation itself contained no charge of an offense against the law.

In the same manner, if a butcher were indicted for privately putting a sheep to causeless and unnecessary torture in the exercise of his trade, but not in public view, so as to be productive of evil example, and the jury should find him guilty, I am afraid no judgment could follow ; because, though done malo animo, yet neither statute nor precedent have, perhaps, determined it to be an indictable offense; it would be difficult to draw the line. An indictment would not lie for every inhuman neglect of the sufferings of the smallest innocent animals which Providence has subjected to us:

"Yet the poor beetle which we tread upon. In corporeal suffering feels a pang as great As when a giant dies."

A thousand other instances might be brought of acts base and immoral, and prejudicial in their consequences, which are yet not indictable by law.

In the case of the King against Brewer, in Cowper's Reports, it was held that knowingly exposing to sale and selling gold under sterling for standard gold is not indictable; because the act refers to goldsmiths only, and private cheat.

26 It is not the act which makes a man guilty, but the intention.

ing is not a common-law offense. Here, too, the declaration of the jury that the defendant is guilty in manner and form as accused, does not change the nature of the accusation. The verdict does not go beyond the charge; and if the charge be invalid in law, the verdict must be invalid also. All these cases, therefore, and many similar ones which might be put, are clearly consistent with my principle. I do not seek to erect jurors into legislators or judges. There must be a rule of action in every society, which it is the duty of the Legislature to create, and of judicature to expound when created. I only support their right to determine guilt or innocence where the crime charged is blended by the general issue with the intention of the criminal; more especially when the quality of the act itself, even independent of that intention, is not measurable by any precise principle or precedent of law, but is inseparably connected with the time when, the place where, and the circum-larly in the case of the King against Woodfall stances under which the defendant acted.

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 Presisistency in practice. It is contraband in law, dent (such sort of witnesses were, no doubt, aland 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, "if you believe it was the becomes contemptible. same petition, it is a publication sufficient, and we must, therefore, come to inquire whether it be a libel." He then gave his reasons for thinking

31

libels], and concluded by saying to the jury, "In short, I must give you my opinion: I do take it to be a libel; if my brothers have any thing to say to it, I suppose they will deliver their opinion." What opinion? not that the jury had no jurisdiction to judge of the matter, but an opinion for the express purpose of enabling them to give that judgment which the law required at their hands.

Having supported the rights of juries, by the Practice of uniform practice of Crown lawyers, let the courts. us now examine the question of author-it within the case de libellis famosis [defamatory ity, and see how this court itself, and its judges, have acted upon trials for libels in former times; for, according to Lord Raymond, in Franklin's case, as cited by Mr. Justice Buller, at Shrewsbury, the principle I am supporting had, it seems, been only broached about the year 1731, by some men of party spirit, and then, too, for the very first time. My Lord, such an observation in the mouth of Lord Raymond proves how dangerous it is to take up as doctrine every thing flung out at Nisi Prius; above all, upon subjects which engage the passions and interests of government. The most solemn and important trials with which history makes us acquainted, discussed, too, at the bar of this court, when filled with judges the most devoted to the Crown, afford the most decisive contradiction to such an unfounded and unguarded assertion.

Case of the

32

In the famous case of the seven bishops, the question of libel or no libel was held seven bishops unanimously by the Court of King's Bench trying the cause at the bar, to be matter for the consideration and determination of the jury; and the bishops' petition to the King, which was the subject of the information, was accordingly delivered to them, when they withdrew to consider of their verdict.

Thinking this case decisive, I cited it at the trial, and the answer it received from Mr. Bearcroft was, that it had no relation to the point in dispute between us, for that the bishops were acquitted, not upon the question of libel, but because the delivery of the petition to the King was held to be no publication.

Mr. Justice Holloway then followed the Chief Justice; and so pointedly was the question of libel or no libel, and not the publication, the only matter which remained in doubt, and which the jury, with the assistance of the court, were to decide upon, that when the learned judge went into the facts which had been in evidence, the Chief Justice said to him, "Look you; by-theway, brother, I did not ask you to sum up the evidence, but only to deliver your opinion to the jury, whether it be a libel or no." The Chief Justice's remark, though it proves my position, was, however, very unnecessary; for, but a moment before, Mr. Justice Holloway had declared he did not think it was a libel, but, addressing himself to the jury, had said, “It is left to you, gentlemen."

Mr. Justice Powell, who likewise gave his opin ion that it was no libel, said to the jury, "But the matter of it is before you, and I leave the issue of it to God and your own consciences." And so little was it in the idea of any one of the court that the jury ought to found their verdict solely upon the evidence of the publication, without attending to the criminality or innocence of the petition, that I was not a little surprised at this statement, the Chief Justice himself consented, on their withbut 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 publication was expressly proved-that nothing turned upon it in the judgment of the court, and that the charge turned wholly upon the question of libel, which was expressly left to the jury by every one of the judges. Lord Chief Justice Wright, in summing up the evidence, told them that a question had at first arisen about the publication, it being insisted on that the delivery of the petition to the King had not been proved; that the court was of the same opinion; and that

declarations under the great seal, and even the statute book, should be delivered to them.

The happy issue of this memorable trial, in the acquittal of the bishops by the jury, exercising jurisdiction over the whole charge, freely granted to them as legal, even by King James's judges, is admitted by two of the gentlemen [for the Crown] to have prepared and forwarded the glorious era of the Revolution. Mr. Bower, in particular, spoke with singular enthusiasm concerning this verdict, choosing—for reasons sufficiently obvious-to ascribe it to a special miracle wrought for the safety of the nation, rather than to the right lodged in the jury to save it by its laws and Constitution!

My learned friend, finding his argument like nothing upon the earth, was obliged to ascend