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serves;“ but they that deal truely are they talk of truth being a libel. In. his delight;" and therefore whoever deed it is to me a matter of astonish. sets himself up as the enemy, or pu- ment, how any judge can possibly nisher, or persecutor of truth, must recommend such a doctrine to a be conscious of proceeding against jury, or how his conscience can the injunctions of christianity which possibly permit him to direct them are superior, as Mr. Justice Black- to act upon it. Let us consider a stone himself acknowledges, to all little the nature of these proceedings: other laws and injunctions whatever. a jury are impanneled, and sworn But although the modern theory of to make, true deliverance between libels militates against the positive the king and the accused : they are commands of our religion, yet it then inforined of the crime with must be observed, that the ancient, which the accused party is charged, the true and genuine law of this which is the publication of " a false land, bore a very different charac- “ wicked and malicious libel," or else ter, as different indeed, as light is of a “ false wicked malicious and sedia from darkness, for it was, above all“ tivus libel ;" that he hath pleaded other laws, remarkable for its at- not guilty, and put himself on trial tachment to truth and mercy. It by “ God and his country, which may therefore be considered as ba- “ country you are," saith the officer ving a higher claim to christian of the court to the jury, faster having purity and excellence, than any o. read over to them the charge or iua ther system of juriprudence what- dictment. Now pray observe here, ever, for these are the great and car. gentle reader, that the trial is to be dinal virtues enjoined by christiani- by God and the jury, that the delity; wbich tells us never to let verance is to be TRUE, and that the Mercy and truth forsake us; and offence imputed, implies falsehood, that they may not, it commands us malice and wickedness ; this is the to bind them round our necks, and ground of criminality laid to the to write them on the table of our charge of the party; and upon which hearts. We are told too, that Mer. the jury are to give a verdict. cy and truth uphold the king ; that But it may be asked-what mean his throne is upholden by mercy: by you by a verdict? Juries are somewhich we see how congenial the times very ignorant, and it is the christian system is with a just and business of judges to instruct then a limited monarchy. The merciful it is for that the office was created. bias of our English law is obvious, To which I beg leave to reply, that from the horror it has of torture, and such instructions are not always of all new and extraordinary modes constitutional. I have read of a case of punishment. It considers every which once occurred at Warwick convicted man as being in misericor. assizes, where a juryman, one George dia regis, and gives the monarch Baylis, with a look of perplexity, the power of mitigating the severity thus addressed the judge: “ My of the punishment of the law, ex- “ Lord, we are a little bobbled i cept only in some particular cases “ some of us know Mr. Plaintiff, and of treason against the constitution; “ and some know Mr. Defendant, where partiality in favour of wicked 6 but we cannot tell who Mr. Vermini ters, and evil counsellors, is ne- “ dict is."* It is such juries as these cessary to be strictly guarded against that make arbitrary and dictatorial Its regard for truth is evinced by a judges, to the perversion and dise number of instances, which one grace of our excellent laws: but supwould think modern judges them, pose an ignoramus jury sitting op selves must have forgotten, when * Hutton's Dissertation on Juries. p. 25
such a case, and a true British judge but that he published wbat was gonscientiously and constitutionally “false wicked and malicious,"or" seexplaining to them their duty, what “ditious” likewise; that is the fact, the would he say upon this case? He truth of which the jury are to decide, would say the word verdict, means a and on the truth of this fact, to give a true saying, or sentence, being de Dictum veritatis. What didWright and rived form Vere-dictuin, which hath Allybone require of the jury? What, that meaning in the latin tongue, I beg Icave to ask, does every judge and consequently that their sentence require of a juryman, who wishes ought in every respect to be confor. him, by a verdict, to declare that mable to the truth. Verdict, says any offensive or inflammatory publimy Lord Coke, is, quase Dictum cation, is libellous, without investiVeritatis, so that the office of a jury gating its truth or falshood:-what is to find out the truth, and to report is required, I ask, in such cases, it ; and this they do upon the penal, but a soleing protestation before heaty of their consciences; they are ven, that certain words are false, bound by an path, and are answer- wicked and malicious, because they able to God, for so doing; conse- are inflammatory or offensive to the quently the trial is by God, as well feelings of the parties? Is not this as by them: and this decision is very act itself a wicked falsehood? and to properly called a true deliverance. return this as the report of truth, Lord Coke also says, although the Dictum viritatis, instead of seeking jury are sworo ad veritatem dicen- that truth, is it not a horrible inidum, yet when they find veritatem quity? And to make heaven itself a facti, they pursuie well their oath. party to this crime, can any thing They pursue it, as he says, but they be more blasphemous? If the quali. do not accomplish it, whicb they ty of being merely inflammatory or are bound to do if they can; but if offensive to other mens' feelings be they cannot, which sometimes bap- sufficient to constitute a libel, why pens, then, and then only, are they describe that offence in such very excusable in not fulfilling the deli. opposite terms in the indictinent? verance of the party, by a special why call it there an act that is fulse, verdict. But they are criminal if it wicked and malicious ? Is it not in- . is in their power to get at the truth, cumbent, that this act, which is and they do not get at it, and form called a crime, and intended to be their verdict on it; for otherwise punished as such, should be proved how can their decision deserve the to be what it is described to be? name of a verdict ; how can it be That it should not be asserted to be Dictum veritutis !-- How can it be one thing, and proved to be another the joint operation of God and their thing? An bonest man is called own consciences, if they refuse, at the upon before God, and under the instigation of a judge, to admit truth penalty of his own salvation, to cerin justification? Ifibey positively reject tify as a truth that the act is what it, after having sworn to find it and re. it is asserted to be in the charge, portit? What,pray,is the Veritus facti, not what it is proved to be in court; in the case here supposed ? Not that that it is false and malicious, withthe accused party published certain out any proof being adduced of words, making a mischief, or dis- . falsehood or malice:--Slanderous or turbance, or stir among the people, offensive perhaps he may think it: as Chief Justice Wright defined a but no, that will not do; he must Bibel; or that inculpated the actual solemnly declare it to be the other, exercise of the government, accor- because the judge pleases to call it ding to the definition of Allybone ; $0; pleases to call Richard Robert,
or to confound the very nature and veritate accipitur. To say that all essences of things, by a kind of judgments are to be received and con. transubstantiation, like that of Dean sidered as truths, when they knew Swift's Lord Peter, who could cut a that many of them were given in slice of vension out of a loaf of consequence of a rejection of it, brown bread: just so doth the judge would have been a satire upon their in this case make slander or offence own proceedings, falsehood and malice.-- Which is Another maxim current among the greatest juggle ?
our ancestors would, had they posMistake me not, Mr. Editor, 1 sessed certain modern notions about do not mcan to inculpate the genuine libels, have been a entting sarcasm, aud venerable law of England, but instead of a laudable and generally only an abuse of the law, a corrup. admired sentiment: veritas, a quo. tion, to which, as I observed in my cunque dicitur, a Deo est : the truth, last, our law has been subject from through whatever channel it may the earliest times'; and if Andrew flow to us, comes from God. This Horne was well thought of for point is a most excellent maxim of law, ang out sucb abuses in Edward the and does honour to our ancient juFirst's time, it will not, I presume, risprudence. It shews that it was be thought criminal to do the same not the rank or quality of a witness thing now. That this is an abuse that our ancestors regarded, but the is manifest: as Lord Folkestone truly truth of the testimony. A quacunque remarked,- A very different con- dicitur! Plebeian truth was, in their “struction of libel existed in ancient estimation, to be preferred to princely “ times, of which the form of in- prevarication ; the testimony of a “ dictment would be a proof, where poor moral man, to that of a profligate ” there no other remaining." Very peer. The reader will find these two different likewise was the veneration jaw-maxiins where, I am confident, entertained by our ancestors for he will not find the novel doctrine, TRUTH: so tar from thinking that it that “ truth is a libel”- 1 mean in could ever become the object of just Lord Coke's Institutes; and I beg punishment, under any circumstan. him to consider how cordially that ces whatever, they bowed to it, as doctrine would have agreed with to the voice of the Deity himself! them, had our ancestors taken it into Their judicial sentences, or veredicta, their heads to adopt all three : after were, as it has been shewn, a relit acknowledging that truth proceeds gions appeal to it, made in the most from God, it would have well besolemn manner. One maxim with hoved them to punish it as a criminal them was, Indicium pro veritate ac. offence! This would have been very cipitur, which accords perfectly with consistent, truly, with their piety the Divine injunction, execute the and morality. Fleta has given the judgments of truth and peace in your description of the persons whom the gates. But I should be glad to King ought to choose for his ministers know, Mr. Editor, how that judg. of justice; he says, “ They ought ment could be received as a truth, “ to be men of wisdom, who fcaf which had been rendered in defianice" God, and adhere strictly to the and contempt of it; where the truth" truth. Viri sapientis, Deum que had been offered in testimony, and “ timentes, in quibus consistit veritas refused. No; if our ancestors had “ eloquiorum.” Now I beg the reaever acknowledged the modern doc- der will perinit me to recapitulate trine of libels, it is most evident, all these circumstances, and he will that they never would have sub- see how consistently hostile they all scribed to the maxim, judicium pro are to the modern doctrine which
supposes that truth may be criminal. refusal be consistent with the late
instigation of the devil.” Now let this? What greater insult could the reader consider duly all these they offer to the majesty of heaven, strong points and characteristic what greater fraud could they praccircumstances, and then tell me, if tice upon earth. Wbat, I beg leave it be likely, that such men, with to ask, are all our modern sorgeries such sentiments, habits, and opi- of wills, or bonds, or hills of exnions, should treat truth as if it change, to such a forgery as this? were falsehood, and bestow upon What indeed. but petty peccadillocs that virtue, the punishment which, in comparison to the forging of a soin the general estimation of the whole lemn declaration, which is to pass nation, was due to its opposite vice? as the judgment of God through the Can it be supposed, that if one of illumination of man's conscience ? our forefathers had been arraigncd What fraud can be compared to that for“ a false and malicious libel, done of substituting the instigations of di" at the instigation of the devil," abolical fulsehood for the inspirations and he should have disclaimed the of divine truth? Well might such falsehood and the malice imputed to men be supposed to have deserted him, as well as the diabolical insti- the God of truth, and gone over to gation, declaring, that instead. there the standard of his grand adversary, of, it was done in purity of heart, the Devil, the eternal father of falseand offering the truth in justification; hood and treachery. This, I am can it be supposed, I ask, that such sure, would have been the conclu. a justification would have been re- sion; it would indeed be a glaring fused, and that falsehood would be inconsistency and contradiction, the imputed to one who offered to prove sentiments and habits of our ances. the truth, but was debarred from tors duly considered, : to supposo doing it? I ask, also, yould such a otherwise. We may therefore say,
with full assurance, that no judge, chryphal with them; and they took in those days, ever presumed to tell care that the charge was niade out, a defendant, that the truth would and substantiated. It would not not benefit him if brought forward have done, to have told them, that in his vindication; or yet to tell a falsehood and malice meant nothing jury that they ought not to hearken more than something satirical, or to such a species of justification, offensive to the feelings of some great Such language might do to such an peculator or oppressor of the public! ignoramus as George Baylis ; but -It would not have done, to have not to the jurymen of those days, said to them, that they must take who appear to have been much bet- implicitly that representation, and ter acquainted with that important reject the offered testimony of truth, duty. This is not difficult to ac- for this would have been an insult to count for. In those times county their honesty : perhaps they would courts and hundred courts made ju have replied to the person who made ries much more common than they to them such an offensive proposiare at present: they were not dic- tion, that they must enquire, for that tated to by the bench, or bam- they were the peers of the party, and boozled, blinded, and bewildered by his only judges; that they had im. the counsel. There was more plain pawned the salvation of their souls dealing, and fewer Counsellor “ Bo-' to make a true deliverance, and must ther'ems" in the practice of the bar answer the consequences to God, in those days. The proceedings were and not to him! But it would have not read over in a rapid, rattling been held by them the consumma. way, so as to be unintelligible ; nor tion of all that was insulting, and were the old terms and phrases, horrible, and profane, to have been which so few now understand, to required to attest as the judgment of them' uncouth. There was, in short, Gud, what they did not, in con. no wish to mislead them, or convert science, believe to be true, what, on them into judicial parrots who re- the contrary, they knew to be the peat merely a few words put into consequence of a rejection of such their mouths, without understanding testimony. From all that I have them. None of those persons would been able to gather, in the course of have been so stupid as to ask who my reading, respecting the sentiMr. Verdict was: nor were they ments of our bold, ingenuous, and hurried as is too commonly the case upright ancestors, I should really at present. We have it on record, suppose, Mr. Editor, that it would that the jury of a county court not have been quite safe for any mau, (Kent) sat three days in the time of however protected by rank or office, William I. before they could satisfy to have made them such a proposi. their consciences respecting their tion. I do not mean to say, that verdict, in an intricate case. There they would have dragged him from is every reason to believe that these the Bench; although I am persua. laudable jurors never found a man ded they would have impeached him guilty of they knew not what, apon in parliament; the members of wbich an indictment which they could nei. were, at that time, in reality, and ther distinctly hear, nor understand. not supposititiously, knights, citizens When a man was charged with a and hurgesses, that is, of the same Jibel, they saw clearly from the in- character and description as the dictment, that the criminality of the jurors. charge consisted in falsehood and Having taken a view of characters malico, at the instigation of the de- and consistencies on one side of the vil, whose existence was not apo- question, I shall now follow the