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1: The fourth and last, that he did not leave the by-standers, have expatiated upon the the defendant's intent to the jury.
enormity of the libels; judges, with the same The answer to these three objections is, view, have sometimes done the same thing; that by the constitution the jury ought not to both have done it wisely with another vierdecide the question of law, whether such a to obviate the captivating harangues of the writing, of such a meaning, published without defendant's counsel to the jury, tending to a lawful excuse, be criminal; and they cannot show that they can or ought to find that in decide it finally against the defendant, be- law the paper is no libel. cause, after the verdict, it remains open upon But the formal direction of every judge the record; therefore it is the duty of the (under which every lawyer for near 100 judge to advise the jury to separate the ques- years, has so far acquiesced as not to complain tion of fact from the question of law; and, as of it to the court) seems to me, ever since the they ought not to decide the law; and the Revolution, to have been agreeable to the diquestion remains entire upon the record, the rection of Mr. Justice Buller. It is difficult judge is not called upon necessarily to tell to cite cases; the trials are not printed. them his own opinion. It is almost peculiar Unless particular questions arise, notes are to the form of the prosecution for a libel, not taken : nobody takes a note of a direction that the question of law remains entirely for of course not disputed. We must, as in all the Court upon record, and that the jury can- cases of tradition, trace backwards, and prenot decide it against the defendant; so that a sume, from the usage which is remembered, general verdict' that the defendant is guilty,' that the precedent usage was the same. We is equivalent to a special verdict in other know there were many trials for libels in the
It finds all which belongs to the jury reign of king William; there is no trace that to find; it finds nothing as to the question of I know of, of any report, that at all bears upon law. Therefore when a jury have been satis- the question during that reign, but the case fied as to every fact within their province to of the King and Bere, which is in Salkeld; find, they have been advised to find the de- that was in the reign of king William, and fendant guilty, and in that shape they take the only thing there applicable to the present the opinion of the Court upon the law. No question is, that the Court were of opinion case has been cited of a special verdict in a that the writing complained of must be set prosecution for a libel, leaving the question of out according to the tenour : Why? That the law upon the record to the Court, though, to Court may judge of the very words thembe sure, it might be left in that form; but selves; whereas, if it was to be according to the other is simpler and better.
the effect, that judgment must be left to the As to the last objection upon the intent: jury. But there it was determined, and under a criminal intent, from doing a thing criminal that authority ever since, the writing comin itself without a lawful excuse, is an in- plained of is set out according to the tenour. ference of law, and a conclusive inference of During the reign of queen Anne we know law, not to be contradicted but by an excuse, several trials were had för libels, but the only which I have fully gone through. Where an one cited is in the year 1704 ;* and there the innocent act is made criminal, when done direction (though lord Holt, who is said to with a particular intent, there the intent is a have done it in several cases, goes into the material fact constitute the crime. This is enormity of the libel) to the jury was, “ If you the answer that is given to these three last find the publication in London, you must objections to the direction of the judge. The find the defendant guilty. Thus it stands, first I said was peculiar to this case.
as to all that can be found precisely and rarThe subject matter of these three objections ticularly, in the reigns of king William and has arisen upon every trial for a libel since queen Anne. We know that in the reign of the Revolution, which is now near one hun- George 1 there were several trials for kibele
, dred years ago. In every reign there have but I have seen no note or traces of them, been many such trials both of a private and nor any question concerning them. In the a public nature. In every reign there have reign of king George 2 there were others; been several defended with all the acrimony but the first of which there is a note (for of party animosity, and a spirit ready to con- which I am obliged to Mr. Manleyt), was in test every point, and to admit nothing. February 1729—the King and ClarketDuring all this time, as far as it can be traced, which was tried before L. C. J. Raymond; one may venture to say, that the direction of and there he lays it down expressly (there every judge has been consonant to the doc- being no question about an excuse, or about trine of Mr. Justice Buller; and no counsel the meaning), he lays it down, the fact of has complained of it by any application to printing and publishing only is in issue. the Court. The counsel for the crown, to re- The Craftsman was a celebrated party-parer, move the prejudices of a jury, and to satisfy written in' opposition to the ministry of sur
* He is now bound by the Libel Act to tell them his own opinion. Note to‘Lord Erskine's Speeches.' See the Libel Act (stat. 32 G. 8, c. 60) ante, Vol. 8,
* Tutchin's Casc, Vol. 14, p. 1095.
# See it in Vol. 17, p. 667, of this Collection
Robert Walpole, by many men of high rank It was the admission of the whole of that and great talents : the whole party espoused party: they put it right; they put it upon the it. It was thought proper to prosecute the meaning of the innuendos : upon that the famous Hague letter. I was present at the jury acquitted the defendant; and they never trial, it was in the year 1731. It happens to put up a pretence of any other power, except be printed in the State Trials.* There was a when talking to the jury themselves. great concourse of people; it was a matter of There are no notes that I know of (and I great expectation, and many persons of high think the bar would have found them out rank were present to countenance the de- upon this occasion, if there had been any that fendant. Mr. Fazakerly and Mr. Bootle (af- were material), there are no notes of the trials terwards sir Thomas Bootle) were the leading for libels before my lord Hardwicke. I am counsel for the defendant. They started every sure there are none before Lord C. J. Lee till objection and laboured every point. When the year 1752, when the case of the King and the judge over-ruled them, he usually said, Owen came on before him. This happens to “ If I am wrong, you know where to apply." be printed in the State Trials, though it is inThe judge was my lord Raymond, C. J. who correct, but sufficient for the present purpose. had been eminent at the bar in the reign of I attended that trial as Solicitor-general. Lord queen Anne, had been Solicitor and Attorney Chief Justice Lee was the most scrupulous obGeneral in the reign of George 1, and was in- server and follower of precedents, and he ditimately connected with sir Edward Northey, rected the jury, as of course, in the same way so that he must have known what the ancient Mr. Justice Buller has done. practice had been. The case itself was of When I was Attorney-General, I prosegreat expectation, as I have stated to you, and cuted some libels; one I remember from the it was so blended with party passion, that it condition and circumstances of the defendant; required his utmost attention; yet, when he he was found guilty. He was a common came to sum up and direct the jury, he does it, councilman of the city of London : and I reas of course, just in the same manner as Mr. member another circumstance, it was the Justice Buller did, “ that there were three first conviction in the city of London that had points for consideration : the fact of publica- been for 27 years. It was the case of the tion; the meaning (those two for the jury); King and Nutt; and there he was convicted, the question of law or criminality, for the under the very same direction, before lord court upon the record.” Mr. Fazakerly and chief justice Ryder. Mr. Bootle were, as we all know, able lawyers; In the year 1756 I came into the office I they were connected in party with the writers now hold. Upon the first prosecution for a of the Craftsman. They never thought of libel which stood in my paper, I think (but I complaining to the court of a misdirection; am not sure), but I think it was the case of they would not say it was not law: they the King and Shebbeare, I made up my mind never did complain. It never was complained as to the direction I ought to give. I have of, nor did any idea enter their heads, that it uniformly given the same in all, almost in the was not agreeable to law. Except that case same form of words. No counsel ever comin 1729 that is mentioned, and this, the trials plained of it to the court. Upon every defor libels before my lord Raymond are not fendant being brought up for judgment, I printed, nor to be found in any notes. But, have always stated the direction I gave;
and to be sure, his direction in all was to the same the court has always assented to it. The deeffect. I by accident (from memory only I fence of a lawful excuse never existed in any speak now) recollect one where the Craftsman case before me; therefore I have told the was acquitted; and I recollect it from a jury if they were satisfied with the evidence famous, witty, and ingenious ballad that was of the publication, and that the meanings of made at the time by Mr. Pulteney; and the innuendos were as stated, they ought to though it is a ballad, I will cite the stanza I find the defendant guilty; that the question remember from it, because it will show you of law was upon record for the judgment of the idea of the able men in opposition, and the court. This direction being as of course, the leaders of the popular party in those and no question ever raised concerning it in days. They had not an idea of assuming that court (though I have had the misfortune to the jury had a right to determine upon a ques- try many libels in very warm times, against tion of law, but they put it upon another and defendants most obstinately and factiously much better ground. The stanza I allude to defended), yet the direction being as of course, and no objection made, it passed as of course, the jury how to do right, though they have it and there are no notes of what passed. In in their power to do wrong, which is a matter one case of the King and Woodfall
is this :
For Sir Philipt well knows,
That his innuendos
In verse or in prøse ;
It appears by a pamphlet printed in 1754, that lord Mansfield is mistaken. The verse runs thus :
Sir Pbilip well knows,
That his innuendos
Note to Speeches of Hon, Thomas Erskine."
* See it, Vol. 17, p. 625. + Sir Philip Yorke, afterwards Lord Chancellor Hardwicke, then Attorney Geporal.
, on ac- entirely between God and their own cuncount of a very different kind of question sciences. (but, upon account of another question), there To be free, is to live under a government happens to be a report, and there the direction by law. The liberty of the press consists in I have stated, is adopted by the whole court printing without any previous license, subject as right, and the doctrine of Mr. Justice to the consequences of law. The licentious Buller is laid down in express terms. Such a ness of the press is Pandora's box, the source judicial practice in the precise point from the of every evil. Miserable is the condition of Revolution, as I think, down to the present individuals, dangerous is the condition of the day, is not to be shaken by arguments of ge- state, if there is no certain law, or, which is neral theory, or popular declamation. Every the same thing, no certain administration of species of criminal prosecution has something law to protect individuals, or to guard the state. peculiar in the mode of procedure; therefore Jealousy of leaving the law to the Court, as
in other cases, so in the case of libels, is now, to complicate and embarrass the question. in the present state of things, puerile rant and general propositions, applied to all, tend on/. No deduction or conclusion can be drawn declamation. The judges are totally indefrom what a jury may do, from the form of pendent of the ministers that may happen to procedure, to what they ought to do upon the be, and of the king himself. Their temsitafundamental principles of the constitution and tion is rather to the popularity of the dar. the reason of the thing, if they will act with But I agree with the observation cited by integrity and good conscience.
Mr. Cowper* from Mr. J. Foster, ‘that a po The fundamental definition of trial by jury pular judge is an odious and a pernicious depends upon a universal maxim that is with- character.'t out an exception. Though a definition or The judgment of the Court is not final; in maxim in law, without an exception, it is said, the last resort it may be reviewed in the is hardly to be found, yet this I take to be a House of Lords, where the opinion of all the maxim without an exception : Ad quæstionem judges is taken. juris non respondent juratores ; ad quæstionem In opposition to this, what is contended facti non respondent judices.
for? That the law shall be in every particular Where a question can be severed by the cause what any twelve men, who shall happen form of pleading, the distinction is preserved to be the jury, shall be inclined to think, upon the face of the record, and the jury can- liable to no review, and subject to no control, not encroach upon the jurisdiction of the under all the prejudices of the popular cry of Court; where, by the form of pleading, the the day, and under all the bias of interest in two questions are blended together, and can- this town, where thousands, more or less, are not be separated upon the face of the record, concerned in the publication of newspapers, the distinction is preserved by the honesty of paragraphs, and pamphlets. Under such an the jury. The constitution trusts, that, under administration of law, no man could tell, no the direction of a judge, they will not usurp counsel could advise, whether a paper was or a jurisdiction which is not in their province. was not punishable. They do not know, and are not presumed to I am glad that I am not bound to subscribe know the law; they are not sworn to decide to such an absurdity, such a solecism in pothe law; they are not required to decide the litics.--Agreeable to the uniform judicial praclaw.-Ifit appears upon the record, they ought tice since the Revolution, warranted by the to leave it there, or they may find the facts sub- fundamental principles of the constitution, of ject to the opinion of the Court upon the law. the trial by jury, and upon the reason ant But further, upon the reason of the thing, fitness of the thing, we are all of opinion that and the eternal principles of justice, the jury this motion should be rejected, and this rule ought not to assume the jurisdiction of the discharged. I law. As I said before, they do not know, and are not presumed to know any thing of the Note. Although the Court was unanimous matter; they do not understand the language in discharging the rule, Mr. Justice Willes, in in which it is conceived, or the meaning of delivering his opinion, sanctioned by his authe terms. They have no rule to go by but thority Mr. Erskine's argument, that upon a their affections and wishes. It is said, if a plea of Not guilty, or upon the general issue man gives a right sentence upon hearing one on an indictment or information for a libel, side only, he is a wicked judge, because he is the jury had not only the power, bụt a constiright by chance only, and has neglected taking tutional right, to examine, if they thought fit, the proper method to be informed; so the the criminality or innocence of the paper jury who usurp the judicature of law, though charged as a libel; declaring it to be his setthey happen to be right, are themselves wrong, because they are right by chance only,
* One of the counsel for the prosecution. and have not taken the constitutional way of
+ See vol. 19, p. 1112. deciding the question. It is the duty of the In a Note to the against Withers, 3 Term judge, in all cases of general justice, to tell Rep. 428, is a less full report of this Judgmeel.
tled opinion, that, notwithstanding the pro- | client, because he knew he could put an end duction of sufficient proof of the publication, to the prosecution any hour he pleased, by the jury might upon such examination acquit the objection he would now at last submit to the defendant generally, though in opposition the Court. It did not require the eye of a to the directions of the judge, without render- lawyer to see that, even if the Dialogue, ining themselves liable either to attaint, fine, / stead of being innocent and meritorious, as or imprisonment, and that such verdict of de- lie thought it, had been t e foulest libel ever liverance could in no way be ser side by the composed or published, the indictment was Court.*
drawn in such a manner as' to render judg
ment absolutely impossible. He said, that if Afterwards, on the part of the Defendant, the charge of publishing the Dialogue com
he had been answering in his own person to was made a motion in arrest of Judgment. plained of, he should have rejected with scorn The following account of Mr. Erskine's Ar- the protection of a deficient indictment, would gument in support of that motion is copied have boldly met the general question, and into the Speeches of the Hon. Thomas Er- have called upon his counsel to show what
holding out defiance to the prosecutor, would skine' from a newspaper published on the day sentence, or word, though wrested with all after the argument was delivered :
the force ingenuity can apply to confound Mr. Erskine moved the Court to arrest the grammar and distort language, could be tor
tured into a violation of any one principle of judgment in the case of the King against the the government:- but that, standing as counDean of St, Asaph upon two grounds : first, sel for another, he should not rest his defence because even if the indictment sufficiently even upon that strong foundation, but, after charged a libel, the verdict given by the jury having maintained as he had done at the wae not sufficient to warrant the judgment of trial, the innocence, or rather the merit of the the Court; and secondly, because the indict-- Dialogue, should entrench himself behind ment did not contain any legal charge of a libel.
every objection which the forms of law ena
bled him to cast up. On the first objection, he again insisted on the right of the jury to find a general verdictment did not contain a sufficient charge of a
The second objection was, that the indicton the merit of the writing charged on the libel of and concerning the king and his gorecord as a libel, notwithstanding the late vernment:-that though the Court, by judg. judgment of the Court ;-—and declared, he ing of libels of that nature, invested itself should maintain it there, and every where with a very large discretion; yet it, nevertheelse, as long as he lived, till the contrary less, was a discretion capable of being mea, should be settled by act of parliament. He sured by very intelligible rules of law, and then argued at considerable length, that within which rules he was persuaded the the verdict, as given by the jury, was neither Court would strictly confine itself. a general, nor a special verdict, and complained of the alteration made upon the re- the libellous or seditious nature of the paper
The first was, that the Court, in judging of cord without the authority of the Court. He said, that the only reason for his in- dictment itself, and could supply nothing from
in question, could only collect it from the insisting on his first objection at such length; any extrinsic source; and that, therefore, was the importance of the principle which it whatever circumstances were necessary to involved, and the danger of the precedent it constitute the crime imputed, could not be established; although he was so certain of supplied from any report of the evidence nor prevailing upon his second objection, that he from any inference from the verdict, but must considered it to be almost injustice to the be set out upon the record. Court to argue it. All who knew him in and out of the profession, could witness for him, and formed the boundary between the pro
That rule was founded in great wisdom, that he had ever treated the idea of ultimately vinces of the Jury and the Court; because, if prevailing against him, upon such an indictment, to be perfectly ridiculous, and that his any extrinsic circumstances, independent of only object in all the trouble 'which he had the plain and ordinary meaning of the writgiven to the Court and to himself, in dis- ing, were necessary to explain it, and point its
criminal application; those facts must be put cussing the expediency of a new trial, was, to
upon the record, for three reasons : resist a precedent, which he originally thought and still continued to think was illegal and
First, that the charge might contain such unjustifiable :-the warfare was safe for his a description of the crime, that the defendant
might know what crime he was called upon
to answer. * This Judgment may be considered as most fortunate for the public, since, in consequence of the
Secondly, that the application of the writvery general interest taken in this cause, the public ing to those circumstances which constituted mind was at last fully ripe for the Libel Bill; which its criminality might be submitted as facts to was soou after moved in the House of Commons by the jury, who were the sole judges of any Mr. Fox, and seconded by Mr. Erskine. [See vol meaning, which depended upon extrinsic 8, p. 36]
proof. VOL. XXI,
Thirdly, that the Court might see such a record by averments, in opposition to argudefinite crime, that they might apply the (ment and inference.' punishment which the law inflicted.
He said, that where facts were necessary He admitted, that wherever a writing was in order to apply the matter of the libel to expressed in such clear and unambiguous them, it was done introductorily, and where words as in itself to constitute a libel, with no new fact was necessary, but only amtsout the help of any explanation, all averments guous words were to be explained, it was and innuendos were unnecessary;—and there done by the innuendo; but that the innuendo fore, if ii could be established that the pamph- could not in itself enlarge the matter which let in question, if taken off the dusty shelves it was employed to explain, without an anteof a library, and looked at in the pure ab- cedent introduction to refer to; but coupled stract, without attention to times or circum- with such introductory matter it could. stances, without application to any facts not He said, nothing remained but to apply upon récord, and without any light cast upon those unquestionable principles to the present it from without, contained false, pernicious,' indictment, and that application divided itself illegal, and unconstitutional doctrines, in their into two heads: tendency destructive of the government, it First, whether the words of the Dialogue, would unquestionably be a libel. But if the considered purely in the abstract, without beterms of the writing were general, and the ing taken to be a seditious exhortation adcriminality imputed to it consisted in criminal dressed to the people, in consequence of the allusions or references to matter dehors the present state of the nation, as connected with writing; then, although every man who reads the subject matter of it, could possibly be such a writing might put the same construc- considered to be a libel on the king and bis tion on it; yet when it was the charge of a government. crime, and the party was liable to be punished , Secondly, whether, if such reference or alfor it, there wanted something more ; it ought lusion was necessary to render it crimina!, to receive a juridical sense on the record, and, there were sufficient averments on the record as the facts were to be decided by the jury, to enable the Court to make the criminal apthey only could decide whether the applica- plication of otherwise innocent doctrines contion of general expressions, or terms of re- sistently with the rules of law. ference, or allusions, as the case might be, to He said, he should therefore take the Diamatters extrinsic, was ust; no could the logue, and show the Court that the whole general expressions themselves be extended, scope and every particular part of it were meeven by the jury, beyond their ordinary mean- ritorious. ing, without an averment to give them cog. nizance of such extended import;-nor could Here lord Mansfield said to Mr. Erskine, the Court, even after a verdict of guilty, with that having laid down his principles of judg. out sueh averment infer any thing from the ment, the counsel for the prosecution should finding, but must pronounce strictly according point out the parts they insisted on as suffito the just and grammatical sense of the lan- ciently charged to be libellous, and that he guage on the record. The Court, by declar- would be heard in reply. On which Mr. ing libel or not libel, to be a question of law, Bearcroft, Mr. Cowper, Mr. Leycester, and must be supposed by that declaration not to Mr. Bower, were all heard; and endeavoured assume any jurisdiction over facts, which was with great ingenuity to show that the Diathe province of the jury; but, only to deter-logue was on the face of it a libel: but on mine that, if the words of tl e writing without Mr. Erskine's rising to reply, the Court said, averment, or with averments found to be true they would not give him any further trouble
, by the jury, contained criminal matter, it as they were unanimously of opinion, that the would be pronounced to be a libel according indictment was defective, and that the judg. to the rules of law :-whereas, if the libel ment should be arrested. could only be inferred from its application to The Court went upon the principles of the something extrinsic, however reasonable or case of the King against Horne, cited by Mr. probable such application might be,-no Erskine; saying there were no averments to Court could possibly make it for want of the point the application of the paper as a libel averment, without which the jury could have on the king and his government; and the no jurisdiction over the facts extrinsic, by dean was therefore finally discharged from reference to which only the writing became the prosecution. criminal.
Mr. Justice Willes threw out, that if the The next question was, how the application indictment had been properly drawn, it might of the writing to any particular object was to have been supported; but lord Mansfield and : be made upon the record: that was likewise Mr. Justice Buller did not give any such opisettled in the case of the King and Horne.* nion, confining themselves strictly to the
'In all cases those facts which are descrip- question before the Court. . tive of the charge must be introduced on the
* See lord chief justice De Grey's Arguineut in The judgment was accordingly arrested, non. Proe. in this Case, vol. 20, p. 791.
and no new proceedings were ever had upon