the jury how to do right, though they have i in their power to do wrong, which is a matter entirely between God and their own COLsciences. To be free, is to live under a government by law. The liberty of the press consists in printing without any previous license, subject to the consequences of law. The licention ness of the press is Pandora's box, the source of every evil. Miscrable is the condition of individuals, dangerous is the condition of the state, if there is no certain law, or, which the same thing, no certain administration of law to protect individuals, or to guard the state, and no objection made, it passed as of course, and there are no notes of what passed. In one case of the King and Woodfall, on account of a very different kind of question (but, upon account of another question), there' happens to be a report, and there the direction I have stated, is adopted by the whole court as right, and the doctrine of Mr. Justice Buller is laid down in express terms. Such a judicial practice in the precise point from the Revolution, as I think, down to the present day, is not to be shaken by arguments of general theory, or popular declamation. Every species of criminal prosecution has something peculiar in the mode of procedure; therefore Jealousy of leaving the law to the Court, as general propositions, applied to all, tend only 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 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 temptsfundamental principles of the constitution andtion is rather to the popularity of the day. 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 poThe fundamental definition of trial by jurypular judge is an odious and a pernicious depends upon a universal maxim that is with-character.'t out an exception. Though a definition or maxim in law, without an exception, it is said, is hardly to be found, yet this I take to be a maxim without an exception: Ad quæstionem juris non respondent juratores; ad quæstionem facti non respondent judices. The judgment of the Court is not final; in the last resort it may be reviewed in the House of Lords, where the opinion of all the judges is taken. In opposition to this, what is contended for? That the law shall be in every particular cause what any twelve men, who shall happen to be the jury, shall be inclined to think, liable to no review, and subject to no control, under all the prejudices of the popular cry of the day, and under all the bias of interest in this town, where thousands, more or less, are concerned in the publication of newspapers, paragraphs, and pamphlets. Under such an administration of law, no man could tell, no counsel could advise, whether a paper was or was not punishable. Where a question can be severed by the form of pleading, the distinction is preserved upon the face of the record, and the jury cannot encroach upon the jurisdiction of the Court; where, by the form of pleading, the two questions are blended together, and cannot be separated upon the face of the record, the distinction is preserved by the honesty of the jury. The constitution trusts, that, under the direction of a judge, they will not usurp a jurisdiction which is not in their province. 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 prac law. If it 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. But further, upon the reason of the thing, and the eternal principles of justice, the jury ought not to assume the jurisdiction of the law. As I said before, they do not know, and are not presumed to know any thing of the matter; they do not understand the language in which it is conceived, or the meaning of the terms. They have no rule to go by but their affections and wishes. It is said, if a man gives a right sentence upon hearing one side only, he is a wicked judge, because he is right by chance only, and has neglected taking the proper method to be informed; so the jury who usurp the judicature of law, though they happen to be right, are themselves wrong, because they are right by chance only, and have not taken the constitutional way of deciding the question. It is the duty of the judge, in all cases of general justice, to tell the trial by jury, and upon the reason and fitness of the thing, we are all of opinion that this motion should be rejected, and this rule discharged. ‡ Note. Although the Court was unanimou in discharging the rule, Mr. Justice Willes, in delivering his opinion, sanctioned by his authority Mr. Erskine's argument, that upon a plea of Not guilty, or upon the general iss on an indictment or information for a hbel, the jury had not only the power, but a consttutional right, to examine, if they thought fit, the criminality or innocence of the paper charged as a libel; declaring it to be his set * One of the counsel for the prosecution. In a Note to the King against Withers, 3 Term Afterwards, on the part of the Defendant, was made a motion in arrest of Judgment. The following account of Mr. ERSKINE'S Argument in support of that motion is copied into the Speeches of the Hon. Thomas Erskine' from a newspaper published on the day after the argument was delivered: 6 Mr. Erskine moved the Court to arrest the judgment in the case of the King against the Dean of St. Asaph upon two grounds: first, because even if the indictment sufficiently charged a libel, the verdict given by the jury wae not sufficient to warrant the judgment of the Court; and secondly, because the indictment did not contain any legal charge of a libel. On the first objection, he again insisted on the right of the jury to find a general verdict on the merit of the writing charged on the record as a libel, notwithstanding the late judgment of the Court;-and declared he should maintain it there, and every where else, as long as he lived, till the contrary should be settled by act of parliament. He then argued at considerable length, that the verdict, as given by the jury, was neither a general, nor a special verdict, and complained of the alteration made upon the record without the authority of the Court. client, because he knew he could put an end to the prosecution any hour he pleased, by the objection he would now at last submit to the Court. It did not require the eye of a lawyer to see that, even if the Dialogue, instead of being innocent and meritorious, as he thought it, had been the foulest libel ever composed or published, the indictment was drawn in such a manner as to render judg ment absolutely impossible. He said, that if he had been answering in his own person to the charge of publishing the Dialogue complained of, he should have rejected with scorn the protection of a deficient indictment, would have boldly met the general question, and have called upon his counsel to show what holding out defiance to the prosecutor, would sentence, or word, though wrested with all the force ingenuity can apply to confound grammar and distort language, could be tortured into a violation of any one principle of the government:-but that, standing as counsel for another, he should not rest his defence even upon that strong foundation, but, after having maintained as he had done at the trial, the innocence, or rather the merit of the Dialogue, should entrench himself behind every objection which the forms of law enabled him to cast up. go ment did not contain a sufficient charge of a The second objection was, that the indictlibel of and concerning the king and his vernment:-that though the Court, by judg ing of libels of that nature, invested itself with a very large discretion; yet it, nevertheless, was a discretion capable of being measured by very intelligible rules of law, and within which rules he was persuaded the Court would strictly confine itself. the libellous or seditious nature of the paper The first was, that the Court, in judging of dictment itself, and could supply nothing from in question, could only collect it from the inany extrinsic source; and that, therefore, whatever circumstances were necessary to constitute the crime imputed, could not be supplied from any report of the evidence nor from any inference from the verdict, but must be set out upon the record. He said, that the only reason for his insisting on his first objection at such length, was the importance of the principle which it involved, and the danger of the precedent it established; although he was so certain of prevailing upon his second objection, that he considered it to be almost injustice to the Court to argue it. All who knew him in and That rule was founded in great wisdom, out of the profession, could witness for him, and formed the boundary between the prothat 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 resist a precedent, which he originally thought upon the record, for three reasons: and still continued to think was illegal and unjustifiable :—the warfare was safe for his First, that the charge might contain such description of the crime, that the defendant might know what crime he was called upon a to answer. Secondly, that the application of the writ ing to those circumstances which constituted its criminality might be submitted as facts to the jury, who were the sole judges of any meaning, which depended upon extrinsic proof. 3 X Thirdly, that the Court might see such a record by averments, in opposition to argu definite crime, that they might apply thement and inference.' punishment which the law inflicted. He admitted, that wherever a writing was expressed in such clear and unambiguous words as in itself to constitute a libel, without the help of any explanation, all averments and innuendos were unnecessary;-and therefore, if it could be established that the pamphlet in question, if taken off the dusty shelves of a library, and looked at in the pure abstract, without attention to times or circumstances, without application to any facts not upon record, and without any light cast upon it from without, contained false, pernicious, illegal, and unconstitutional doctrines, in their tendency destructive of the government, it would unquestionably be a libel. But if the terms of the writing were general, and the criminality imputed to it consisted in criminal allusions or references to matter dehors the writing; then, although every man who reads such a writing might put the same construction on it; yet when it was the charge of a crime, and the party was liable to be punished for it, there wanted something more; it ought to receive a juridical sense on the record, and, as the facts were to be decided by the jury, they only could decide whether the application of general expressions, or terms of reference, or allusions, as the case might be, to matters extrinsic, was just; nor could the general expressions themselves be extended, even by the jury, beyond their ordinary meaning, without an averment to give them cognizance of such extended import;-nor could the Court, even after a verdict of guilty, without such averment infer any thing from the finding, but must pronounce strictly according to the just and grammatical sense of the language on the record. The Court, by declaring libel or not libel, to be a question of law, must be supposed by that declaration not to assume any jurisdiction over facts, which was the province of the jury; but, only to determine that, if the words of tl e writing without averment, or with averments found to be true by the jury, contained criminal matter, it would be pronounced to be a libel according to the rules of law: whereas, if the libel could only be inferred from its application to something extrinsic, however reasonable or probable such application might be,no Court could possibly make it for want of the averment, without which the jury could have no jurisdiction over the facts extrinsic, by reference to which only the writing became criminal. The next question was, how the application of the writing to any particular object was to be made upon the record: that was likewise settled in the case of the King and Horne.* 'In all cases those facts which are descrip'tive of the charge must be introduced on the * See lord chief justice De Grey's Argument in Dom. Proe. in this Case, vol. 20, p. 791. He said, that where facts were necessary in order to apply the matter of the libel to them, it was done introductorily, and where no new fact was necessary, but only ambe guous words were to be explained, it was done by the innuendo; but that the innuendo could not in itself enlarge the matter which it was employed to explain, without an antecedent introduction to refer to; but coupled with such introductory matter it could. He said, nothing remained but to apply those unquestionable principles to the present indictment, and that application divided itself into two heads: First, whether the words of the Dialogue, considered purely in the abstract, without being taken to be a seditious exhortation addressed to the people, in consequence of the present state of the nation, as connected with the subject matter of it, could possibly be considered to be a libel on the king and his government. Secondly, whether, if such reference or allusion was necessary to render it crimina!, there were sufficient averments on the record to enable the Court to make the criminal application of otherwise innocent doctrines consistently with the rules of law. He said, he should therefore take the Dialogue, and show the Court that the whole scope and every particular part of it were meritorious. Here lord Mansfield said to Mr. Erskine, that having laid down his principles of judg ment, the counsel for the prosecution should point out the parts they insisted on as sufficiently charged to be libellous, and that he would be heard in reply. On which Mr. Bearcroft, Mr. Cowper, Mr. Leycester, and Mr. Bower, were all heard; and endeavoured with great ingenuity to show that the Dialogue was on the face of it a libel: but on Mr. Erskine's rising to reply, the Court said, they would not give him any further trouble, as they were unanimously of opinion, that the indictment was defective, and that the judgment should be arrested. The Court went upon the principles of the case of the King against Horne, cited by Mr. Erskine; saying there were no averments to point the application of the paper as a libel on the king and his government; and the dean was therefore finally discharged from the prosecution. Mr. Justice Willes threw out, that if the indictment had been properly drawn, it might have been supported; but lord Mansfield and Mr. Justice Buller did not give any such opinion, confining themselves strictly to the question before the Court. The judgment was accordingly arrested, and no new proceedings were ever had upon the subject against the dean or the printer | Twyford, near Winchester, was celebrated by employed by him. His adversaries were, it the inhabitants of the neighbourhood. is believed, sufficiently disposed to distress him; but they were probably aware of the consequences of bringing the doctrines maintained by the court of King's-bench into a second public examination.* In the New Annual Register (Principal Oceurrences, p. 97) for the year 1784, is given under date December 4th, an account of bonfires, illuminations, and other testimonies of attachment and gratulation, with which, in honour of the dean's concern in this case, his arrival at the house of his venerable father at Note to lord Erskine's Speeches. ADDENDUM To the Note in page 857. Together with the office of Chief Justice of Chester, Mr. Kenyon held that of the King's Attorney General. There would have been something unseemly in that officer's presiding at the trial of an indictment for the publication of a seditious libel. With respect to the King's Attorney General's holding the office of Chief Justice of Chester, see sir Samuel Romilly's observations in the House of Commons, March 1, 1814. New Parl. Deb. vol. 27, p. 330. 567. Proceedings against GEORGE STRATTON, HENRY BROOKE, CHARLES FLOYER, and GEORGE MACKAY, esqrs. on an Information filed against them, by his Majesty's Attorney General, for a Misdemeanor, in arresting, imprisoning, and deposing George Lord Pigot, Commander in Chief of the Forces in Fort St. George, and President and Governor of the Settlement of Madras, in the East-Indies: 19 & 20 GEORGE III. A. D. 1779, 1780. 1776, until the 11th day of May following, when he died. The Report given below of the Trial of Messrs. | Stratton, Brooke, Floyer, and Mackay, in the court of King's-bench, was taken in Geo. Stratton, Henry Brooke, Charles Floyer, "That it appears to this Committee, that short-hand by Mr. Blanchard, but was never Archdale Palmer, Francis Jourdan, and Geo. printed. For the communication of Mr. Mackay, esqrs. did, on the 23d day of August Blanchard's MS. Notes, I am indebted to 1776, form themselves into a council, and did Mr. Henry Smith, now (April 1814) Soli-rison of Fort St. George on colonel James confer the command of the army and the garcitor to the East-India Company, whose father was engaged on behalf of the prosecution. IT "That it appears to this Committee, that George lord Pigot, a member of this House, was, on the 24th of August, 1776, arrested by a military force, and carried and confined under a military force at the house of major Horne, at a place called the Mount, about nine miles distant from the town of Madras and Fort St. George, of which he was governor and commander in chief; and that the said George lord Pigot continued in confinement under a military force for upwards of eight months, that is, from the 24th day of August, Stuart, ordering him to arrest the person of George lord Pigot, their governor and commander in chief, and to put the fort, garrison, and fort-house, under their command. "That it appears to this Committee, that the Court of Directors of the East-India Company have, by letters of the 4th of July, 1777, and of the 23d of December, 1778, to their presidency at Madras, ordered, that courtsmartial should be held for the trial of colonel James Stuart, colonel Edingtoun, major Horne, and captain Lysaught, for having arrested and confined, under a military force, their governor and commander in chief, George lord Pigot. "That it is the opinion of this Committee, that an humble Address be presented to his Majesty, praying his Majesty that he would be graciously pleased to give directions to his Attorney General, to prosecute George Stratton, Henry Brooke, Charles Floyer, and George Mackay, esqrs. for ordering their go vernor and commander in chief George lord Pigot, to be arrested and confined under a military force; they being returned to England, and now within the jurisdiction of his Majesty's courts of Westminster-hall."* 1468. Since reported in 1 Blackstone, 460.] where the prosecution was by indictment, on a motion to quash the first, another having been found, the Court would not permit ii, but upon terms, and by consent; and said, The above resolutions were on the same that it was by no means a motion of course. day reported to the House and agreed to. quashed on the motion of the prosecutor, it That in all cases where indictinents have been The House thereupon ordered, "That the has been on the ground of insufficiency, [Vide said Address be presented to his majesty by sir Wm. Withipole's case, H. 4 Car. 1. Cro. Car. such members of this House as are of his majesty's most honourable privy council:" 147. Rex v. Swan and Jefferys, Fost. 104] which and, on April 19th, "The lord Hinchinbrook That in the case of Rex v. Purnell, [1 Wilson, was not pretended in the present instance. reported to the House that their Address of 239. Since reported in 1 Blackst. 37] which Friday last (praying his majesty, that he would be graciously pleased to give directionsley Ryder, then Attorney General, against the was an information filed er officio by sir Dudto his Attorney General, to prosecute George defendant as vice-chancellor, and a justice of Stratton, Henry Brooke, Charles Eloyer, and peace in the university of Oxford, the Attorney George Mackay, esqrs. for ordering their go- General had put an end to the first informavernor and commander in chief George lord tion, without any application to the Court, by Pigot, to be arrested and confined under a litary force; they being returned to England, the express order of the king, which order a noli prosequi, but that he had done this on and now within the jurisdiction of his majesty's courts of Westminster-hall) had been presented to his majesty; and that his majesty had commanded him to acquaint this House, that he will give directions as required by the said Address." mi Accordingly, in the ensuing Trinity Term, Mr. Attorney General (Wedderburn) filed an information against Messrs. Stratton, Brooke, Floyer, and Mackay, and in the succeeding Michaelmas Term, on an application to quash the said information, the following proceedings took place: The KING against STRATTON and others. November 11, 1779. An information had been filed er officio, by the Attorney General, in consequence of a resolution of the House of Commons, against the defendants, for imprisoning the governor (lord Pigot) and subverting the government of the settlement at Madras, where they were members of the council. The defendants had pleaded, and the parties were at issue, and notice of trial given for the sittings after last term; but the prosecutor countermanded the notice, and, on Tuesday the 9th of November, the Solicitor General applied for a rule to shew cause, why the information should not be quashed, suggesting, as the ground of the application, that another was ready to be filed, which stated the offence more particularly, and was better adapted to the nature of the charge. The rule was granted, and cause was, this day, shewn by Dunning, Wilson, Arden, and Erskine. They said, there never had been an application of this sort, but that in the case of Rex v. Philip Carteret Webb [E. 4 Geo. 3. 3 Burr. These resolutions, together with the speeches of admiral Pigot, brother to lord Pigot, who proposed them, and of Mr. Stratton and the other gentlemen who took part in the debate, are inserted in the New Parl. Hist, vol. 20, pp. 363 et seq. was stated in his warrant to the master of the crown-office [sir James Burrow] to enter the would not grant the motion without obliging noli prosequi. That, at all events, the Court the prosecutor to pay costs [H. 6 Geo. 2. Rex v. Moore, 2 Str. 946.] The Solicitor General, in support of the rule, observed, that the defendant could not suffer any injury by the quashing of the information, because the crown might go on to trial, and judgment, on the new one, notwithstanding the pendency of the other, for that, on indictments, or informations for crimes, the pendency of another prosecution for the same offence cannot be pleaded, as it may to informations for penalties.* [Sir Wilferys.] He said, that leave to quash indict liam Withipole's case, Rex v. Swan and Jef without a rule to shew cause. ments is often granted in the first instance, General if there was any authority or preceLord Mansfield having asked the Solicitor dent for quashing an information er officio upon the application of the prosecutor, he adsaid, that if it was proper to stop the informitted that he knew of none, and his lordship mation, he did not see why the Attorney Ge neral might not do it by entering a noli presequi, without the interference of the Court. Buller, Justice.-What the Solicitor General has stated, viz. that the pendency of the first information would be no plea to the second, is decisive against this motion. It is All the litigated cases are upon insufficiency, certainly not of course to quash indictments. information depending may be pleaded an abate* Hawkins, B. 2, c. 26, § 63. says that another ment to an information qui tam, and cites Cro. El. 261. 1 Roll. Rep. 49, 50, 134. But he says nothing on that point as to other informations. In B. 2, c. 34, 1, he says, generally, that another prosecution depending is no good plea to an indiclment, as it is to an appeal or information, but be refers to the former passage, and therefore probably meant only qui tam informations. |