After the abolition of the Star-chamber, which in case of libel exercised an unbounded control over both law and fact, the cognizance of such offences reverted to the court of King's Bench, to be exercised in the constitutional mode by the intervention of a jury; and till some time after this period, no doubt seems to have been entertained of the right of a jury to give a general verdict in the case of libel, as well as in any other criminal proceeding.

In the year 1670,* two Quakers, Penn and Mead, indicted for seditiously preaching to a multitude tumultuously assembled in Gracechurch-street, were tried before the Recorder of London, who told the Jury, that they had nothing to do but to find whether the defendants had preached or not; for that, whether the matter or the intention of their preaching was seditious, were questions of law but not of fact, which they were to keep to at their peril. The Jury first found Penn guilty of speaking to the people in Gracechurch-street. This verdict having been refused by the Recorder, the Jury again retired, and afterward brought in a general verdict of acquittal; this the Court considered as a contempt, and set a fine of forty marks on each of them, and directed them to be confined till the fine should be paid. Edward Bushel, one of the jurors, refused to pay the fine, and being imprisoned in consequence of his refusal, sued out his writ of habeas corpus, which was returned, together with the cause of his commitment, "his acquital of Penn and Mead against the law of England, against the

*Bushel's case, Vaughan. Rep. 135.

evidence, and against the direction of the Court on matter of law."

Lord Chief Justice Vaughan, on the latter part of the return, observed, "The words, that the Jury did acquit, against the direction of the Court in matter of law, literally taken and de plano, are insignificant and unintelligible; for no issue can be joined of matter in law, no Jury can be charged with matter in law barely, no evidence ever was or can be given to a jury of what is law or not, nor no such oath can be given to or taken by a Jury to try matter in law, nor no attaint can lie for such a false oath.

"Therefore we must take off this veil and colour of words, which make a show of being something, and in truth are nothing.

"If the meaning of these words, finding against the direction of the Court in matter of law, be, that the Judge having heard the evidence given in Court, for he knows no other, shall tell the Jury upon this evidence, the law is for the plaintiff or for the defendant, and you are under the pain of fine and imprisonment to find the contrary, then the Jury ought of duty so to do, every man sees that the Jury is but a troublesome delay, great charge, and of no use in determining right and wrong; and, therefore, the trials by them may better be abolished than continued, which were a strange new found conclusion, after a trial so celebrated for many hundreds of years.

"For if the Judge, from the evidence, shall by his

own judgment first resolve upon any trial what the fact is, so knowing the fact shall then resolve what the law is, and order* the Jury severally to find accordingly, what either necessary or convenient use can be fancied of Juries, or to continue trials by them at all."

Upon the trial of Nathaniel Thomsont and others for composing and publishing libellous remarks upon the administration of Justice, the Chief Justice‡ concluded his observations to the Jury, by saying—“ Gentlemen, I do leave it to you, whether upon this evidence you do not believe them all to be guilty of this design of traducing the justice of the nation."

In the case of the Seven§ Bishops, who were indicted for having offered a petition to the King, which was alleged to be a libel, the Judges who seemed no ways inclined to favour the defendants, would not accede to the doctrine of the Counsel for the Crown, who contended that the malice and sedition, wherewith the prelates were charged, arose by construction of law out of the fact, and that the Jury had nothing to concern themselves with but the fact of the publication in Middlesex.

The defendants had given in evidence several parliamentary documents, to prove that the dispensing power claimed by the King, and against the exercise of which the petition of the Bishops was directed, was illegal. The then Attorney-general,

* Bushell's case, Vaughan. Rep. 135.

† 3 St. Tr. 37. The object of the publication was to prove that Green, Berry, and Hill, had been improperly convicted of the murder of Sir Edmondbury Godfrey.

Sir Francis Pemberton.

St. Tr. 4 J. 2.

after some slight remarks upon this evidence, was about to conclude with a somewhat flippant expression of regret, that the defendants' counsel had spent their time to so little purpose, when the Chief Justice observed, "Yes, Mr. Attorney, I'll tell you what they offer, which it will lie on you to give an answer to,-they would have you show how this has disturbed the Government or diminished the King's authority." The Attorney-general then contended, that malice or sedition arise by construction of law out of the fact; and that if the thing be illegal, the law says it is seditious, and a man shall not come and say he meant no harm by it.

And afterwards whilst the Solicitor-general was speaking, the Chief Justice interrupted him by requesting him to come to the business before them, and to show that the alleged libel was in diminution of the King's prerogative, or that he ever had such a prerogative.

Upon summing up to the Jury, the Chief Justice, after addressing the Jury upon the point of publication, proceeded, "If you believe this was the petition they presented to the king, then we must inquire whether this be a libel." The Chief Justice then proceeded to intimate his opinion, that the publication in question was a libel, but as it was a point of law, invited his brethren to give their opinions.

This the other Judges proceeded to do.

Justice Holloway concluded by saying, "I cannot think it is a libel; it is left to you, Gentlemen, but that is my opinion."

Powell J. also delivered his opinion to the same effect, leaving the issue to the conscience of the Jury.

And afterward when the Jury retired to determine upon their verdict, they were permitted to take with them the alleged libel.

Upon the trial of John Tutchin,* upon an information for publishing a libel entitled the Observator, Lord Holt C. J., after reading the printed papers alleged to be libels, told the Jury, "Now you are to consider, whether these words I have read to you do not tend to beget an ill opinion of the administration of the Government." The learned Judge, it is true, concluded his address, as was afterward observed by Lord Mansfield C. J., by saying, "If you are satisfied that he is guilty of composing and publishing these papers in London, you are to find him guilty." But these words have immediate reference to the ground of defence upon which Mr. Tutchin's counsel meant to rely; namely, that the offence had not been proved to have been committed in London, and cannot be considered as used for the purpose of withdrawing the attention of the Jury from the quality of the publication, upon which they had just before received instructions; and indeed to suppose it had so meant would prove too much, since if so, the Jury were directed not to find the truth of the innuendos.

The first instance which appears where the Court directed the Jury to find the defendant guilty, if they were satisfied with the evidence of publication, appears to be that of the King v. Clerkt for publishing

*4 St. Tr. 659.

↑ 2 G. 2. 1729. Barnard. K. B. 304.