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Mr. Bower on


of authorities.

to heaven to support it. Having admitted that | For it is very necessary for all governments that

the jury not only acted like just men the people should have a good opinion of it; and the case of this toward the bishops, but as patriot cit- nothing can be worse to any government than to

izens toward their country, and not endeavor to procure animosities as to the manbeing able, without the surrender of his whole agement of it; this has always been looked upon argument, to allow either their public spirit or as a crime, and no government can be safe withtheir private justice to have been consonant to out it be punished." the laws, he is driven to make them the instru. Having made these observations, did the Chief ments of divine Providence to bring good out of Justice tell the jury that whether the publication evil; and holds them up as men inspired by God in question fell within that principle, so as to be to perjure themselves in the administration of a libel on government was a matter of law for justice, in order, by-the-by, to defeat the effects the court, with which they had no concern ? of that wretched system of judicature, which he Quite the contrary: he considered the seditious is defending to-day as the Constitution of En- tendency of the paper as a question for their sole gland! For if the King's judges could have de determination, saying to them, cided the petition to be a libel, the Stuarts might “Now you are to consider whether these yet have been on the throne.

words I have read to you do not tend to beget My Lord, this is an argument of a priest, not an ill opinion of the administration of governof a lawyer; and even if faith, and not law, were ment; to tell us that those that are employed to govern the question, I should be as far from know nothing of the matter, and those that do subscribing to it as a religious opinion. No man know are not employed. Men are not adapted believes more firmly than I do, that God governs to offices, but offices to men, out of a particular the whole universe by the gracious dispensations regard to their interest, and not to their fitness for of his providence, and that all the nations of the the places. This is the purport of these papers." earth rise and fall at his command; but, then, In citing the words of judges in judicature, I this wonderful system is carried on by the nat- have a right to suppose their discourse Comparison ural, though, to us, the often hidden, relation be- to be pertinent and relevant, and that, tween effects and causes, which wisdom adjusted when they state the defendant's answer to the from the beginning, and which foreknowledge at charge, and make remarks on it, they mean that the same time rendered sufficient, without dis- the jury should exercise a judgment under their turbing either the laws of nature or of civil soci- direction. This is the practice we must certainly ety. The prosperity and greatness of empires impute to Lord Holt, if we do him the justice to ever depended, and ever must depend, upon the suppose that he meant to convey the sentiments use their inhabitants make of their reason in de which he expressed. So that, when we come to vising wise laws, and the spirit and virtue with sum up this case, I do not find myself so far bewhich they watch over their just execution; hind the learned gentleman, even in point of ex. and it is impious to suppose that men who have press authority ; putting all reason, and the analmade no provision for their own happiness or se- ogies of law which unite to support me, wbolly curity in their attention to their government, are out of the question. There is Court of King's to be saved by the interposition of Heaven in turn- Bench against Court of King's Bench ; Chief ing the hearts of their tyrants to protect them. Justice Wright against Chief Justice Lee; and

But if every case in which judges have left Lord Holt against Lord Raymond. As to living Chief Justice the question of libel to juries in oppo- authorities, it would be invidious to class them; case of Tutch sition to law, is to be considered as a but it is a point on which I am satisfied myself

, miracle, England may vie with Pales- and on which the world will be satisfied likewise, and Lord Chief Justice Holt steps next if ever it comes to be a question.33 into view as an apostle ; for that great judge, in But even if I should be mistaken in that parTutchin's case, left the question of libel to the ticular, I can not consent implicitly to receive jury, in the most unambiguous terms. After any doctrine as the law of England, though prosumming up the evidence of writing and pub- nounced to be such by magistrates the most relishing, he said to them as follows: “You have spectable, if I find it to be in direct violation of now heard the evidence, and you are to consider the very first principles of English judicature. whether Mr. Tutchin be guilty. They say they The great jurisdictions of the country are unalare innocent papers, and no libels; and they say terable except by Parliament, and, until they are nothing is a libel but what reflects upon some changed by that authority, they ought to remain particular person. But this is a very strange sacred : the judges have no power over them. doctrine—to say it is not a libel reflecting on what parliamentary abridgment has been made the government, endeavoring to possess the peo- upon the rights of juries since the trial of the ple, that the government is maladministered by bishops, or since Tutchin's case, when they were corrupt persons, that are employed in such or fully recognized by this court ? None. Lord such stations, either in the navy or army. To Raymond and Lord Chief Justice Lee ought, say that corrupt officers are appointed to admin. therefore, to have looked there—to their predeister affairs, is certainly a reflection on the gov- cessors--for the law, instead of setting up a new

If people should not be called to ac- one for their successors. count for possessing the people with an ill opinion 33 Lord Camden is the one here opposed to Mansof the government, no government can subsist. field.

tine ;




But supposing the court should deny the le- stands good, till answered by the defendant : it gality of all these propositions, or, admitting their must stand till contradicted or explained ; and if legality, should resist the conclusions I have not contradicted, explained, or exculpated, becomes drawn from them : then I have recourse to my tantamount to conclusive, when the defendant calls last proposition, in which I am supported even no witnesses." by all those authorities, on which the learned Mr. Justice Aston said, “ Primâ facie evijudge relies for the doctrines contained in his dence not answered, is sufficient to ground a vercharge; to wit:

dict upon : if the defendant had a sufficient exv. "That, in all cases where the mischievous cuse, he might have proved it at the trial : his Fifth Propo. intention, which is agreed to be the es- having neglected it where there was no surprise,

sence of the crime, can not be collected is no ground for a new one.” Mr. Justice Willes by simple inference from the fact charged, be- and Mr. Justice Ashurst agreed upon those excause the defendant goes into evidence to rebut press principles. such inference, the intention then becomes a pure These cases declare the law, beyond all conunmixed question of fact, for the consideration of troversy, to be, that publication, even of a libel, the jury."

is no conclusive proof of guilt, but only prima I said the authorities of the King against facie evidence of it till answered; and that, if Authorities Woodfall and Almon were with me. . In the defendant can show that his intention was not in ea propor the first, which is reported in fifth Bur. criminal, he completely rebuts the inference aris

row, your Lordship expressed yourself ing from the publication ; because, though it rethus: “Where an act, in itself indifferent, becomes mains true that he published, yet, according to criminal when done with a particular intent, there your Lordship's express words, it is not such a the intent must be proved and found. But where publication of which a defendant ought to be found the act itself is unlawful, as in the case of a libel, guilty. Apply Mr. Justice Buller's summing up the Proof of justification or excuse lies on the to this law, and it does not require even a legal defendant; and in failure thereof, the law implies apprehension to distinguish the repugnancy. a criminal intent." Most luminously expressed The advertisement was proved to convince the to convey this sentiment, namely, that when a jury of the Dean's motive for publishing ; Mr. man publishes a libel, and has nothing to say for Jones's testimony went strongly to aid it ;34 and himself--no explanation or exculpation—a crim- the evidence to character, though not sufficient inal intention need not be proved. I freely ad- in itself, was admissible to be thrown into the mit that it need not; it is an inference of common scale. But not only no part of this was left to sense, not of law. But the publication of a libel the jury, but the whole of it was expressly redoes not exclusively show criminal intent, but is moved from their consideration, although, in the only an implication of law, in failure of the de- cases of Woodfall and Almon, it was as expresssendant's proof. Your Lordship immediately aft- ly laid down to be within their cognizance, and a erward, in the same case, explained this further. complete answer to the charge, if satisfactory, to “There may be cases where the publication may the minds of the jurors. be justified or excused as lawful or innocent; FOR In support of the learned judge's charge, NO FACT WHICH IS NOT CRIMINAL, though the pa- there can be, therefore, but the two Only two arguper BE A LIBEL, can amount to such a publica- arguments, which I stated on moving of Justice Bu tion of which a defendant ought to be found for the rule. Either that the defend- ler's charge guilty.” But no question of that kind arose at ant's evidence, namely, the advertisement-Mr. the trial, that is, at the trial of Woodfall. Why? Jones's evidence in confirmation of its being bona Your Lordship immediately explained why—Be- fide—and the evidence to character, to strength. cause the defendant called no witnesses ;" express- en that construction—were not sufficient proof ly saying, that the publication of a libel is not in that the Dean believed the publication meritoriitself a crime, unless the intent bè criminal ; and ous, and published it in vindication of his honest that it is not merely in mitigation of punishment, intentions ; or else that, even admitting it to es. but that such a publication does not warrant a tablish that fact, it did not amount to such an verdict of guilty

exculpation as to be evidence on Not Guilty, so In the case of the King against Almon, a as to warrant a verdict. I still give the learned magazine, containing one of Junius's letters, was judge the choice of the alternative. sold at Almon's shop: there was proof of that As to the first, namely, whether it showed sale at the trial. Mr. Almon called no witness- honest intention in point of fact, that Remarko on es, and was found guilty. To found a motion was a question for the jury. If the the first. for a new trial, an affidavit was offered from Mr. learned judge had thought it was not sufficient Almon that he was not privy to the sale, nor evidence to warrant the jury's believing that the knew his name was inserted as a publisher; and Dean's motives were such as he had declared that this practice of booksellers being inserted as them, I conceive he should have given his opin. publishers by their correspondents, without no- ion of it as a point of evidence, and left it there. tice, was common in the trade.

I can not condescend to go further; it would be Your Lordship said, “Sale of a book in a book- ridiculous to argue a self-evident proposition. seller's shop, is prima facie evidence of publica- As to the second, namely, that even if the tion by the master, and the publication of a libel is primâ facie evidence of criminal intent: it 34 For Mr. Jones's testimony, see note 18.

Remarks on

jury had believed, from the evidence, that the that the defendant did not believe it to be illegal,

Dean's intention was wholly innocent, and did not publish it with the seditious purpose the second, it would not have warranted them in charged by the indictment, he is not guilty upon acquitting, and, therefore, should not have been any principle or authority of law, and would have left to them upon Not Guilty. That argument been acquitted even in the Star Chamber; for it can never be supported. For if the jury had de. was held by that court, in Lambe's case, in the clared, “We find that the Dean published this eighth year of King James the First, as reported pamphlet ; whether a libel or not, we do not find : by Lord Coke, who then presided in it, that evand we find further, that, believing it in his con- ery one who should be convicted of a libel must science to be meritorious and innocent, he, bona be the writer or contriver, or a malicious publishfide, published it with the prefixed advertisement, er, knowing it to be a libel. as a vindication of his character from the reproach This case of Lambe being of too high authorof seditious intentions, and not to excite sedition :"ity to be opposed, and too much in Mr. Bower's atit is impossible to say, without ridicule, that on point to be passed over, Mr. Bower det meste erade such a special verdict the court could have pro- endeavors to avoid its force by giving Lambe's case

. nounced a criminal judgment.

it a new construction of his own : He says, that Then why was the consideration of that evi- not knowing a writing to be a libel, in the sense dence, by which those facts might have been of that case, means, not knowing the contents of found, withdrawn from the jury, after they the thing published; as by conveying papers brought in a verdict guilty of publishing only, sealed up, or having a sermon and a libel, and which, in the King against Woodfall, was simply delivering one by mistake for the other. In such said not to negative the criminal intention, be- cases, he says, ignorantia facti excusat, because cause the defendant called no witnesses? Why the mind does not go with the act; sed ignorandid the learned judge confine his inquiries to the tia legis non excusat ,35 and, therefore, if the party innuendoes, and finding them agreed in, direct knows the contents of the paper which he pubthe epithet of guilty, without asking the jury if lishes, his mind goes with the act of publication, they believed the defendant's evidence to rebut though he does not find out any thing criminal, and the criminal inference? Some of them positive- he is bound to abide by the legal consequences. ly meant to negative the criminal inference by This is to make criminality depend upon the adding the word only, and all would have done consciousness of an act, and not upon Reply : Jaten it, if they had thought themselves at liberty to the knowledge of its quality, which to completudes enter upon that evidence. But they were told would involve lunatics and children in the crime. expressly that they had nothing to do with the all the penalties of criminal law; for whatever consideration of that evidence, which, if believed, they do is attended with consciousness, though would have warranted that verdict. The con- their understanding does not reach to the conclusion is evident; if they had a right to consider sciousness of offense. The publication of a libel, it, and their consideration might have produced not believing it to be one after having read it, is such a verdict, and if such a verdict would have a much more favorable case than publishing it been an acquittal, it must be a misdirection. unread by mistake; the one, nine times in ten, is " But,” says Mr. Bower, "if this advertise- a culpable negligence, which is no excuse at all.

ment prefixed to the publication, by For a man can not throw papers about the world Bower as to the which the Dean professed his innocent without reading them, and afterward say he did

intention in publishing it, should have not know their contents were criminal. But if been left to the jury as evidence of that intention, a man reads a paper, and not believing it to conto found an acquittal on, even taking the Dia- tain any thing seditious, having collected nothing logue to be a libel, no man could ever be con of that tendency himself, publishes it among his victed of publishing any thing, however danger- neighbors as an innocent and useful work, he can ous ; for he would only have to tack an adver- not be convicted as a criminal publisher. How tisement to it by way of preface, prosessing the he is to convince the jury that his purpose was excellence of its principles and the sincerity of innocent, though the thing published be a libel, its motives, and his defense would be complete." must depend upon circumstances—and these cirMy Lord, I never contended for any such posi- cumstances he may, on the authority of all the tion. If a man of education, like the Dean, were cases, ancient and modern, lay before the jury in to publish a writing so palpably libelous that no evidence; because, if he can establish the innoignorance or misapprehension imputable to such cence of his mind, he negatives the very gist of a person could prevent his discovering the mis- the indictment. chievous design of the author, no jury would be- "In all crimes," says Lord Hale, in his Pleas lieve such an advertisement to be bona fide, and of the Crown," the intention is the principal conwould, therefore, be bound in conscience to reject sideration; it is the mind that makes the taking it, as if it had no existence. The effect of such of another's goods to be felony, or a bare tresevidence must be to convince the jury of the de- pass only: it is impossible to prescribe all the fendant's purity of mind, and must, therefore, de

35 This old adage, " Ignorance of a fact may expend upon the nature of the writing itself

, and cuse, but not of law," proceeds on the principle that all the circumstances attending its publication.

men are bound to know the law of their country, but If, upon reading the paper, and considering the not every fact that may be connected with their whole of the evidence, they have reason to think conduct and actions.

Answer to Mr.



circumstances evidencing a felonious intent, or from it, that every student knows it is as applithe contrary; but the same must be left to the cable to all other cases. But people are resolved, attentive consideration of judge and jury: where from some fatality or other, to distort every prioin the best rule is, in dubiis, rather to incline to ciple of law into nonsense, when they come to acquittal than conviction.”

apply it to printing; as if none of the rules and In the same work, he says, "By the statute of maxims which regulate all the transactions of Philip and Mary, touching importation of coin society had any reference to it. counterfeit of foreign money, it must, to make it If a man, rising in his sleep, walks into a treason, be with the intent to utter and make china shop, and breaks every thing about him, payment of the same; and the intent in this case his being asleep is a complete answer to an inmay be tried and found by circumstances of dictment for a trespass; but he must answer in FACT, by words, letters, and a thousand evi- an action for every thing he has broken. dences besides the bare doing of the fact." If the proprietor of the York coach, though

This principle is illustrated by frequent prac. asleep in his bed at that city, has a drunken tice, where the intention is found by the jury as servant on the box at London, who drives over a fact in a special verdict. It occurred, not my leg and breaks it, he is responsible to me in above a year ago, at East Grinstead, on an indict- damages for the accident; but I can not indict ment for burglary, before Mr. Justice Ashurst, bim as the criminal author of my missortune. where I was myself counsel for the prisoner. It What distinction can be more obvious and simwas clear upon the evidence that he had broken ple? into the house by force, in the night, but I con- Let us only, then, extend these principles, tended that it appeared from proof that he had which were never disputed in other criminal broken and entered with an intent to rescue his cases, to the crime of publishing a libel; and let goods, which had been seized that day by the offi- us, at the same time, allow to the jury, as our cers of excise ; which rescue, though a capital fel- forefathers did before us, the same jurisdiction ony by modern statute, was but a trespass, temp. in that instance which we agree in rejoicing to Henry VIII., and consequently not a burglary. allow them in all others, and the system of En

Mr. Justice Ashurst saved this point of law, glish law will be wise, harmonious, and complete. which the twelve judges afterward determined My Lord, I have now finished my argument, for the prisoner. But in order to create the point having answered the several objections of law, it was necessary that the prisoner's in- to my five original propositions, and estention should be ascertained as a fact; and, for tablished them by all the principles and authori. this purpose, the learned judge directed the jury ties which appear to me to apply, or to be necto tell him with what intention they found that essary for their support. In this process I have the prisoner broke and entered the house, which been unavoidably led into a length not more inthey did by answering, " To rescue his goods," convenient to the court than to myself

, and have which verdict was recorded.

been obliged to question several judgments which In the same manner, in the case of the King had been before questioned and confirmed. against Pierce, at the Old Bailey, the intention They, however, who may be disposed to cenwas found by the jury as a fact in the special sure me for the zeal which has animated me in verdict. The prisoner, having hired a horse and this cause, will at least, I hope, have the candor afterward sold bim, was indicted for felony; to give me credit for the sincerity of my intenbut the judges, doubting whether it was more tions. It is surely not my interest to stir up opthan a fraud, unless he originally hired him in- position to the decided authorities of the court in tending to sell him, recommended it to the jury which I practice. With a seat here within the to find a special verdict, comprehending their bar, at my time of life, and looking no further judgment of his intention, from the evidence.than myself, I should have been contented with Here the quality of the act depended on the in- the law as I found it, and have considered how tention, which intention it was held to be the little might be said with decency, rather than exclusive province of the jury to determine, be- how much; but feeling as I have ever done upon fore the judges could give the act any legal de the subject, it was impossible I should act othernomination.

wise. It was the first command and counsel to My Lord, I am ashamed to have cited so many my youth, always to do what my conscience told The error arises authorities to establish the first ele- me to be my duty, and to leave the consequences

ments of the law; but it has been to God. I shall carry with me the memory, and, criminal cases. my fate to find them disputed. The I hope, the practice, of this parental lesson to whole mistake arises from confounding criminal the grave. I have hitherto followed it, and have with civil cases. If a printer's servant, without no reason to complain that the adherence to it his master's consent or privity, inserts a slander- has been even a temporal sacrifice: I have found ous article against me in his newspaper, I ought it, on the contrary, the road to prosperity and not in justice to indict him ; and if I do, the jury wealth, and shall point it out as such to my chil. on such proof should acquit him; but it is no dren. It is impossible, in this country, to hurt defense against an action, for he is responsible to an honest man; but even if it were possible, I me civiliter for the damage which I have sustained should little deserve that title, if I could, upon from the newspaper, which is his property. Is any principle, have consented to tamper or temthere any thing new in this principle ? So far porize with a question which involves, in its de. termination and its consequences, the liberty of of libel or no libel was one for the judges alone the press, and, in that liberty, the very existence to decide—thus putting the liberty of the press of every part of the public freedom.

from confound ing civil and

beyond the reach of a jury, in the hands of the court. The public mind became greatly agita

ted on the subject. Mr. Erskine's argument Notwithstanding this powerful argument, the was written out and widely circulated; and a court, through Lord Mansfield, gave a unani- way was thus prepared for a declaratory law, mous decision in favor of Justice Buller's doc- affirming the right of the jury "to give their trine, and discharged the rule for a new trial. verdict on the whole matter in issue,” and order. But they afterward allowed an arrest of judg-ing that “they shall not be required or directed ment, finding, on examination, that there was by the court to find the defendant or defendants nothing illegal in the Dialogue. Mr. Erskine, guilty merely on the proof of the publication by referring to the subject in his speech on the trial such defendant or defendants, of the papers of Paine, said: “I ventured to maintain this very charged to be a libel.” Mr. Fox introduced a · right of a jury over questions of libel before a bill to this effect into the House of Commons, in noble and revered magistrate of the most exait- 1791. When passed there, it was once defeated ed understanding, and the most uncorrupted in and again resisted by Thurlow, Kenyon, Bathtegrity. He treated me, not with contempt, in- urst, and all the judges in the House of Lords, deed, for of that his nature was incapable ; but but was finally passed, June 1st, 1792, chiefly he put me aside with indulgence, as you do a through the exertions of Lord Camden. “I child when it is lisping its prattle out of season.” have said," says the distinguished jurist already At the present day, however, most lawyers agree mentioned, “and I still think, that this great conin the opinion expressed by Lord Campbell, that stitutional triumph is mainly to be ascribed to the doctrine of Mansfield, though it had obtained Lord CAMDEN, who had been fighting in the in the courts for a century, was a departure from cause for half a century, and uttered his last the original principles of the English common words in the House of Lords in its support : but law on this subject.

without the invaluable assistance of ERSKINE, The decision now made, confirming that in as counsel of the Dean of St. Asaph, the Star the case of Woodfall, was considered as finally Chamber might have been re-established in this establishing the fatal principle, that the question country.”

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INTRODUCTION. MR. STOCKDALE was a London bookseller, who published a pamphlet, written by a Scottish clergyman named Logan, while the trial of Warren Hastings was going on, reflecting severely on the House of Commons for their proceedings therein. Mr. Fox, one of the managers of the impeachment, brought this publication before the House, as impugning the motives of those who bad proposed the trial, and moved that the Attorney General be directed to prosecute the author and publisher of the pamphlet for a libel on the Commons. The fact of publication was admitted, and the case, therefore, turned on the true nature of the crime alleged.

In this speech Mr. Erskine has stated, with admirable precision and force, the great principles involved in the law of libel: namely, that every composition of this kind is to be taken as a whole, and not judged of by detached passages; that if its general spirit and intention are good, it is not to be punished for hasty or rash expressions thrown off in the heat of discussion, and which might even amount to libels when considered by themselves; that the interests of society demand great freedom in canvassing the measures of government; and that if a publication is decent in its language and peaceable in its import, much indulgence ought to be shown toward its author, when his real design is to discuss the subject, and not to bring contempt on the government—though in doing so he may be led, by the strength of his feelings, to transcend the bounds of candor and propriety. 36 It is curious that so accurate a man as Lord

For Sir Philip well knows Mansfield should have made so entire a mistake

That his innuendoes upon one point embraced in his decision. In main

Will serve him no longer taining that, from the time of the Revolution of

In verse or in prose; 1688, the doctrine of Justice Buller had been uni. For twelve honest men have decided the cause, versally received and acknowledged he quoted the Who are judges of fact, though not judges of laws. following lines from a ballad by Mr. Pulteney con. Now it happens that the last line was written and cerning Sir Philip Yorke, the Attorney General, to prove that even the popular party, in those days, published thus by Pulteney in the Craftsman: had no idea of assuming that the jury had a right Who are judges alike of the facts and the laws! to determine upon a question of luw."

-See Erskine's Speeches, vol. i., p. 216, New York.

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