there is a constitutional reason of infinite moment to a free people, why a jury should of themselves always determine whether any thing he or be not a libel. It is this, that ninety-nine times out of a hundred, 'these informations for public libels are a dispute between the ministers and the people; and, in my conscience, this very circumstance has made our progenitors retain to 'themselves the power of determining both the law and the fact, with respect to libels, although they waved or ceded to the judges the power of determining the law in all other respects. Having acquiesced in the power exercised by the attorney general, of informing against what he pleases as a libel, they were resolved not to part with the prerogative of judging finally upon the matter themselves; and in my poor opinion, had · they done so, we should, long before this, not only have lost the liberty of the press, 'but every other liberty besides.' evidence had been given to the jury, that the "In short, the real cause why some judges have been so desirous of propagating the notion that juries are only judges of fact, and not of law, seems to be this; that this doctrine tends to advance their own power and authority, and enables them the better, on many occasions, to carry a favourite point. But we should ever remember, that as trial by jury is one of the most valuable privileges of Englishmen, so it is of the utmost importance that the rights of jurymen should be well understood, and resolutely maintained. Vid. Pettingal's Enquiry into the Use and Practice of Juries, &c. Letter concerning Libels,pose any man, without provocation, kills Warrants, the Seizure of Papers, &c. Ellis's Liberty of Subjects in England, and Enquiry into the Question, Whether Juries are Judges of Law as well as Fact? 8vo. 1764." "Extract from the Life of Lord Chief Justice Jefferies, in the same Work : 6 another; the words of the indictment are, that he did it maliciously, feloniously, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil. Now all these things, 'whether he had the fear of God before his eyes, or not; or whether he were moved by "In February, 1683, sir Samuel Bernardis- 'the instigation of the devil, and of his malice ton, bart. was tried before sir George Jefferies forethought, or no; these cannot be known, for the publication of several scandalous and 'till they come to be proved by the action malicious libels. This gentleman was well 'that is done. So in case any person doth known to be no friend to the despotic mea-write libels, or publish any expressions, sures of Charles the second, and was therefore obnoxious to the court, but nothing could be found on which to ground a prosecution against him, but by the scandalous practice of intercepting his private letters. Four of these, written in confidence to his friends, and containing nothing more than some free remarks on the state of public affairs at that time, were the libels which he was prosecuted for publishing, by sending them to the postoffice; for that was the only method in which he had published them. Jefferies took abundant pains to cause this gentleman to be condemned; and the jury being either weak or wicked enough to bring him in guilty, the chief justice had the conscience to fine him 10,000l. "It being observed on this occasion by sir Samuel Bernardiston's counsel, that no 16 which in themselves carry sedition, and faction, and ill-will towards the government; I cannot tell well how to express it otherwise ' in his accusation, than by such words, that 'he did it seditiously, factiously, and maliciously. And the proof of the thing itself, proves the evil mind it was done with. If, then, gentlemen, you believe the defendant, 'sir Samuel Bernardiston, did write and publish these letters, that is proof enough of the words, maliciously, seditiously, and factiously, laid in the information." "We have the rather made this quotation from Jefferies's speech on this occasion, because arguments to the same purpose, and indeed nearly in the same words, have been since made use of in libel-causes, by mea * See vol. 9, p. 1351. who would not be thought to imitate this infamous chief justice. But every man must see the fallacy of this kind of reasoning. In the case Jefferies mentions, of compassing and imagining the death of the king, there must be a proof of some overt-act to evidence such a treasonable design. In the case of murder, the proof of the act itself is a sufficient evidence of guilt; because to kill any man, unless it be by accident, or in self-defence, is an illegal and wicked act. But the case of libels is essentially different. If, in a trial for a libel, nothing is proved but the writing or publication, there is no guilt of any kind proved, unless it be proved to the jury, that the book or writing really is what it is stiled in the information or indictment; for writing or publishing are, in themselves, innocent and indifferent actions. Jefferies indeed says, in case any person doth write 'libels, or publish any expressions, which in 'themselves carry sedition and faction, and 'ill-will towards the government, I cannot tell well how to express it otherwise in his accusation, than by such words, that he did it seditiously, factiously, and maliciously.' And this observation might be allowed, if Jefferies, and those who have imitated him, had left it to the jury to determine, whether the writings or books in question did really contain ⚫ expressions, which in themselves 'carry sedition, and faction, and ill-will 'towards the government.' But neither Jefferies nor his imitators, have ever done this. They have always laboured to make juries take it for granted, on their mere ipse dixit, that the books or writings in question were scandalous, seditious, and malicious libels, or whatever else they have thought proper to stile them. And this practice, and these doctrines, have been much inculcated by certain crown lawyers, and such judges as have been disposed at all events to gratify the court. But it is the duty of jurymen to judge for themselves; and that they should do so, is of the utmost importance to the freedom of the press; on the preservation of which all our other rights do most essentially depend. "THOMAS YATES, Sec. "Printed and distributed gratis by the Society for Constitutional Information." Mr. Bower. The affidavit and the paper annexed to it having been read, I shall trouble your lordships with very few observations indeed upon it. At the same time, before I make any, I wish it to be understood by every gentleman upon the jury, that if they have conceived the smallest reflection is cast upon them, or any of them, by this motion Lord Chief Justice Kenyon. Certainly there is not. Mr. Bower. As to the paper itself, the contents of it appear too obvious to require any *Afterwards successively Master of the Rolls, and Ch. Just. B. R. comment to be made upon it; your lordships will at once see whether it has that tendency which is imputed to it. I shall not trouble your lordships with arguing that question, because it would be, as it seems to me, as nu gatory as to argue that the sun shines at noon day. The only question will be, whether it is brought home to the defendant. Now the affidavit is sworn in a way that is liable to contradiction, if any contradiction can be given to it: that these papers were distributed by the agents of this society, and for the reasons given, we have proved; and that the defendant and the Constitutional Society are one and the same people; in the case of the King v. Martha Gray,* who was indicted for a nuisance, at Richmond Park,† there papers had been distributed previous to the trial; upon an application to the court upon that ground, the trial was put off, with the consent of the counsel for the defendant; but the noble lord who presided at that assize, was of opinion, and declared it most tho roughly and fully, that he should have put off that trial if there had not been any such consent. The case there was, the distributing of papers by the defendant's brother only, and it was never brought home to the defendant. I submit to your lordships, that this case is much stronger; it is brought home to the defendant; for unless the defendant can say that he disclaims all the assistance of that society, that he has never had any from it in any shape whatever, and that the society no way interfere in this prosecution, I trust that unless that answer to our affidavit is given in the most pointed and direct terms, your lordships will think this an application not to be resisted, and will put off this trial till another great session. Mr. Erskine. Will Mr. Bower indulge me so far as to state what was the substance of those papers that were distributed in the case of the King versus Martha Gray? Mr. Bower. I do not know; the case does not report it. Mr. Erskine. I wished you could have stated it to the court, for I know what it was. Mr. Manley. Though your lordships should think the publication itself is not sufficient cause to put off the trial, yet, I trust your lordships will be of opinion, that when accompanied with the circumstances stated in this affidavit, you cannot do a greater benefit to the public, to society at large, than by de * 1 Burr. 510. Of this transaction, which, though now perhaps generally forgotten, in its day excited extensive animosity, see copious accounts in the periodical publications of the time; in Lysons's Environs of London, article Richmond; and in Gilbert Wakefield's Memoirs of his own Life. This Richmond Park business affords a strong illustration of an interesting remark made by De Lolme respecting the suit between lord Grosvenor and the duke of Cumberland. See De Lolme's Constitution of England, p. 373, note, ed. of 1807. feating the influence which a body of men like the Constitutional Society have endeavoured to effect, by dispersing these papers in this country, for though I have the highest opinion of the gentlemen who at present appear upon this jury, and of the freeholders at farge of this county, yet I trust that your lordships will be of opinion, that this pamphlet must necessarily have some influence, and I hope and trust, therefore, that your lordships will endeavour to defeat that. Mr. Richards. I am also of counsel for the prosecution; I shall not trouble your lordships with any argument, as it is impossible for me to add any thing to what has been already offered to your lordships. My lords, when I see the name of William Jones to the affidavit on which the motion is founded, and when I reflect that that William Jones is the prosecutor, and when I further recollect the busy part that very gentleman has taken in informing the public-not merely of the general principles of the constitution not of the general rights of jurors in the trial of every question that can be agitated, but of the circumstances of this particular cause, and not only that, a pointed libellous defamation of the defendant, and a condemnation of the particular thing which he himself has brought him into this court to answer for: my lords, when I reflect on these things, I may have leave to observe, that, whatever may be the merits of this applica tion, it comes very ill indeed from him. But I mean to resist this matter upon the injustice and impropriety of it. My lords, as to the Constitutional Society, they are a body of men who devote themselves to the propagation of that knowledge, without which we are no longer a people; they are ready to answer for themselves: they are, as your lordships know, many of them characters of great respect and consideration in this country; many of them members of both houses of parliament; and when they see themselves thus arraigned, no doubt they will find means to do themselves justice. The Honourable Thomas Erskine. I shall trouble your lordships with but very few observations in answer to this very extraordinary motion; and, my lords, I feel it to be a very great consolation that what we are doing here is not doing in a corner; that the eyes of the public, and of a free and enlightened public, are upon us, and that whatever your fordships do, and whatever I say, will be judged of by the world. I am persuaded that your lordships' decision will be just, and I have therefore the most perfect confidence that that decision will be with me. That a trial may be put off where any person, whether connected with the party or not, has distributed matters relative to and pointed to My lords, though I have not the gift of the circumstances of the case which is to be prophecy, I did foresee that some attempt or determined in a court of justice, I conceive to other would be made to put off this trial; I be a matter perfectly clear; and I should be knew that they felt it impossible to face these utterly ashamed to take the exception that gentlemen who stand before me; I did conthe defendant was no party to the distribu- ceive some pretence would be laid hold of; tion, if the pamphlet that has been read in but little did I think that the application court was such a pamphlet as ought in itself, would have been of this sort. Your lordships coming from whatever quarter, to be a reason will be pleased first of all to recollect—and I for not trying the cause. I should be ashamed shall verify this, matter by an affidavit from to make the exception, because I admit that the defendant-that the pamphlet which the there is no administering justice with pro-dean of St. Asaph stands indicted for being priety, if the minds of the jurors are, by any channel, and in any way, perverted with respect to the trial of the particular cause which they are sworn to determine. On this principle, if there were an issue joined between two individuals, or between his majesty and the subject, as in the case of this indictment, and any man, or set of men, should publish a defence of the defendant, and should examine particularly and minutely all the matters of the cause, and it could be brought home that that paper had found its way to the jurors who were to try it, I should not be afraid, as a judge, of exercising that prerogative of discretion which must belong to the judicial character in every country, namely, the power of postponing, upon such an occasion, any species of trial; but I think I hazard very little in making this admission, after having listened with some attention to the paper which has been read. the publisher of, was the work of sir William Jones; who (his majesty, our gracious master, knowing him to be the author of it; his ministers knowing him to be the author of it; the public knowing him to be the author of it) was appointed to administer the justice of this great country, in the remotest parts of the empire, where seditious characters ought not to be sent; be that as it may, sir Wm. Jones, not the dean of St. Asaph, was the author of this publication; and that worthy gentleman, whose name and character I respect, who is incapable of sedition, or of any other corrupt quality of the heart, and whose talents and virtues are known to many who hear me, avowed himself to be the author of it. Sir Wm. Jones was a member of this Society for the Propagation of Constitutional Knowledge; and that very pamphlet, for which we are standing here indicted, and which I shall insist we have a right to be tried upon to-day, was published by the Constitutional Society * Now (March 1814) one of the Barons of the themselves, as the work of this worthy memCourt of Exchequer. ber of their own body, upon the second of August, 1782, six months before it was republished by the dean; for which republication he is called here to answer before your lordships. be introduced, it is material for me to answer it. I am glad to hear your lordship say it is no arraignment of their proceedings. Lord Chief Justice Kenyon. I wish to My lords, if when a defendant is indicted for be understood it is no arraignment of them here; but whether it may be raised up into a publication of this sort, it be thought an answer to the bringing on a trial that a great body another offence, is another consideration.* Mr. Erskine. It is stated upon the face of of men are interested, and actively interested, in the issue of it, neither your lordships, nor this affidavit, that the Constitutional Society any other judges, will ever try a question of protect the dean of St. Asaph, and that they this nature, for I hope in God that I never are partners in the expence. My lords, if shall live to see the time when any thing of that be a crime, the laws of this country are this sort shall be published by any individual, not extinguished; they are amenable to courts that every honest man of the country shall of justice; if it be barratry, it may be punot stand up vigorously in his defence. Inished; but, as your lordship truly observes, should be of that opinion, and however it may suit your lordships, I am not afraid, in this or any other court of justice, to say, that it is the right of every subject of England, when he conceives another man is unjustly arraigned—not for a private act against another-not for a private wrong against another, which is barratry, for if I am either guilty of a trespass, of an assault and battery, or any other private wrong, and that private wrong is made either the subject of an indictment or an action, perhaps no man, or body of men, are to support me; but because men not very ignorant, nor without a great stake in the country to lead them to be aware of countenancing sedition, think fit to support the legality of the general doctrines in the paper indicted, and to publish to the whole world, the general duties of jurors contained in the other, on which the motion is founded, who shall say that that is a reason not to try the cause? and if it be a reason, when is the cause to be tried? for would your lordships' postponing the trial induce that public spirited body of men to remit their labours in that which they think beneficial to the public? I will now state what this Constitutional Society has done; and if your lordships think fit upon that to put off the trial, I am sure your lordships will have the free consent of the dean of St. Asaph and myself; since, whether we are tried, or whether we are not, we shall be acquitted in the eyes of an impartial public. The crime does not depend upon extrinsic evidence-it is printed; beyond that printing the advocates for the crown know that they have no proof. The crime has therefore been read; and it seems it is an additional crime in others, that ours it is certainly no crime here. And I am so far from thinking it a crime here or any where, that I am proud to inform your lordships, and all who hear me speak, that that body of men have thought me worthy of defending this cause; I accepted it as a most willing duty, and I am sure I have no other motion to make to your lordships here, than that I may have an opportunity of fulfilling it in the face of the country. The dean of St. Asaph has other counsel here, but this Constitutional Society, as it is called, knowing that a great part of the bar here had been retained, and feeling it to be a public cause, in which they themselves, and the public at large, were interested, requested me to come down in support of it. Lord Chief Justice Kenyon. Upon that I wish to say a word. If you come down not as counsel for the dean of St. Asaph, but for the Constitutional Society, I shall not hear you. Mr. Erskine. Your lordship is too quick. I have not said that I am not counsel for the dean of St. Asaph. Lord Chief Justice Kenyon. I should little conform in such case to what the public expect from me; I will not suffer any impertinent interposition in causes, in those who are I don't mean that of no parties to the cause. you, I am sure. Mr. Erskine. If your lordship would hear me out first, agreeably to the common practice of courts, perhaps we should better understand one another. I shall certainly profess myself to your lordship and the jury, as counsel for the dean of St. Asaph, and the only reason why I mentioned the circumstance relating to these gentlemen, was to shew has been re-published by way of defending of any protection that we have received from your lordship that we are not ashamed us. This body of men, called the Constitutional Society, are arraigned for having taken upon them part of the expence of this trial. Lord Chief Justice Kenyon. That is not imputed to them as any crime as I know of. Mr. Leycester. We have stated the fact. We have not stated it as any offence. Mr. Erskine. You thought the fact material, or you would have expunged it from the affidavit. Mr. Leycester. Undoubtedly. Mr. Erskine, Then if it was material to them. Now with respect to this paper that the Constitutional Society have published; first let us see whether it contains any matter * In the case of Mr. Jolliffe, who, a few days previously to the time appointed for the trial of an information against him, had at the place of trial given away printed papers calculated to prejudice in his favour persons who might be upon the jury, the trial was put off, and moreover B. R. for the giving away of the papers granted another information against him, See 4 Term Rep. 285. so referable to the cause in question, so pointed to the matters of which the defendant is accused, as that it may be supposed, in coming into the hands of those who are to try it, to be productive of undue influence, or to prevent the right administration of justice. And there are a few positions that I will put to your lordship: there was nothing that my short experience tells me to be wrong; there was nothing in it that I think illegal: they seemed to be extracts from different historians, and from different trials, marking out the particular nature of libels, mentioning particular indictments for libels, and the province of the judge, and the province of the jury in those cases; that alone seemed to be the nature of this pamphlet; and I hold it to be impossible ever to try any cause of this kind, if the publication of this paper be a sufficient reason with your lordships to postpone the present trial; because it is only the propagation of particular principles and doctrines, referable to the general constitution of the country, and applicable to the general rules of the administration of justice, which I trust will be ever in circulation, and not pointed directly or indirectly at the particular question which is now to be tried. Will your lordships say First, let me suppose a man to be indicted of any crime whatsoever, but particularly a crime of this sort, which is charged to be a seditious libel, for your lordships will not forget the cause that we are trying; the indictment charges, that the dean of St Asaph published this paper, which it terms a libel, with an intent to excite and diffuse amongst the subjects of this realm discontents and suspicions of the king; disaffection and disloyalty to his person; to draw the government of the kingdom into scandal, infamy, and disgrace, and to excite his majesty's subjects to attempt by violence and force of arms to sub-that, if a juryman were to read this, he could vert the constitution of this country. They who saw that charge, and who read this book, on which it is founded, saw no connexion between them. They conceived them to be general speculative opinions upon the theory of our happy government; they conceived them to be points, in the propagation and in the maintenance of which they were all equally interested, and which they had a right to support as a common interest; for although a man is not to protect an individual in doing a wrong to another, surely he has a right to maintain the doctrines published by another, though they may be thought a crime by others, or even by the government. Perhaps the Constitutional Society have propagated this paper which has been read; but is there a reference in it, is there an allusion in it, to the particular crime of which the dean of St. Asaph has been charged to be guilty? Does it state the nature of the publication? Does it enter into a defence of it? Does it arraign the accusation? Does it enlighten the minds of the jury with respect to the particular question that they are to try? The case of the King versus Martha Gray, which Mr. Bower has alluded to, was for a nuisance. The papers in distribution pending that trial, were not propagating among the jury their right to determine the cause without the interposition of the judge; they did not enter into the general theory of the administration of justice; they did not chalk out the particular duty of the judge, and the province of the jury; no, if my memory serves me right, these papers were distributed pointedly and with a direct reference to the cause that was to be tried, and were not mere general observations upon the constitution, or upon the administration of justice. Now with respect to this paper, sworn to have been distributed, I have not read it, I have only listened to it while it was read, and I confess, that though I listened attentively, there was nothing that came across my ear in it that shocked me, possibly gather from it more than what he ought to have known before, namely, that the province of a jury in trying the dean of St. Asaph for a seditious libel, was to determine whether he had published it with those seditious intentions which are mentioned in the indictment; whether he was a man disaf fected to the government; whether the language of the dialogue, which is called a libel, was pointed to the particular times, or whether they were only general speculative propositions; and if they were, whether they were consonant to, and consistent with, the laws of this country. Is there any judge now in England will say, that when a jury are sworn to try a cause upon the general issue, that the judgment of the law as well as the fact does not rest with them: if it be criminal to assert the contrary, this paper might be a libel; those people who published it might be libellers; but how can it affect the trial of this cause, and how can the defendant be deprived from being tried by that jury which are struck by an order from your lordship, and impannelled to try it, without its either being brought home to him, or even to one of the jurors? The gentlemen, with that politeness which is natural to them, and which I am persuaded they will never forsake upon any occasion, say, they mean no personal reproach to the jury, but they must pardon me for saying, that it strikes me to be matter of high reproach, however unintended it may be; if the jury, knowing themselves impannelled to try the cause, have refused to see any thing that has any reference to it; and who will dare to charge them with 4 contrary conduct? How can their minds possibly be affected by it? And will your lordships say, that these twelve gentlemen, who at this great session are impannelled, as a special jury, to try the indictment, shall not try it, because certain people in London have thought fit to publish extracts from certain books, stating the general rights of jurymen, |